If anything, this China coronavirus-induced crisis spectacularly revealed the unworkability and shortcomings of a federal form of government for the Philippines. When push came to shove, the instincts of even the most ardent federalism supporters almost immediately were for the National Government to take control of the situation.
One sees this in the request (later withdrawn) by the Administration for additional or emergency powers. Or even more revealingly, in President Duterte’s obviously peeved admonition to certain local government executives: the National Government “calls the shots” and that local governments should just “comply.”
Interestingly, that declaration would be unheard of in a federal form of government. There, even in times of crisis, it’s the local governments that take the lead.
Thus, as Michael Levenson points out (“Local and State Officials Unlock Sweeping Powers to Fight Coronavirus,” March 14): “It might seem there is no more awesome power available to the government than a national emergency declaration… But the governors, county executives and mayors across the country who have declared states of emergency in their own areas have actually unlocked even more sweeping powers.”
Berkeley’s John Yoo concurs: Under the US “federal system, Washington, D.C., has only limited powers to respond to a pandemic. The Constitution grants the national government a limited set of enumerated powers.” Instead, “under our constitutional system, the primary authority to fight the pandemic rests in the hands of our state governors” (“Pandemic Federalism,” March 20).
The Heritage Foundation’s David B. Rivkin, Jr. is even more succinct: National government “leadership is crucial, but there are measures only states have the authority to take” (with Charles Stimson, “A Constitutional Guide to Emergency Powers,” March 19).
There’s this persistent misconception about federalism being merely a division of governmental functions: essentially one layer but of two levels. This is not true. That’s what we have right now with the present Constitution and the Local Government Code. It can be mostly top-down or bottom-up depending on how Congress formulates implementing legislation.
Federalism actually creates two competing layers of government. Or to be precise: two parallel authorities each equally exercising sovereign power over the citizenry.
Each “State” or LGU (i.e., province or region) is left to its own devices to generate domestic revenue and develop export markets, and is responsible for providing basic governmental services. It has the capacity to make its own laws, as well as judicial and law enforcement.
As their entire earnings remain with the LGU, the national government is not legally obliged to help destitute regions/provinces, or even in calamities or states of emergency. In short, the States or LGUs can be left to fend, sink or swim for themselves.
Under federalism, the consequent competition between “States” or LGUs allows citizens to freely leave poorly managed States and transfer to those providing a better way of life: lower taxes, less government regulation, better property protection, as well as developed healthcare and education.
Going back to the Philippines, the approach taken was not federalism but a unified central government. The reason is necessity: particularly during war, or in times of national calamity or emergency. This was Apolinario Mabini’s rationale for a strong national government and this was mirrored by Alexander Hamilton (see Federalist No. 6-7).
Nevertheless, the Constitution declares that the government work under the concept of “subsidiarity” encouraging smaller political units and civil society (LGU’s, churches, the family) to take greater responsibility in governance matters.
Thus, as constitutionalist Michael Yusingco posits: “we already have a quasi- federal set-up under the current charter.”
Subsidiarity is reflected greatly in Article X, declaring that local governments enjoy local autonomy, with the president exercising only “general supervision” over LGUs, and each LGU allowed to raise its own revenue.
Specifically, in relation to the present pandemic, governors and mayors have the power to procure without public bidding (Secs. 366 and 368, Local Government Code), to carry out emergency measures (Secs. 444 and 465), and to promote general welfare and health (Sec. 16).
Hence why it’s emphasized here again that the aims of federalism can be achieved by simply amending the Local Government Code (and without changing the Constitution).
The Local Government Code can be amended to give greater powers to the LGU’s, with greater share or even 100% of their earnings retained by the LGU’s (particularly taking into account the Supreme Court’s ruling in Mandanas vs. Executive Secretary, GR 199802). The power to make investment, trade, and customs regulations, and providing education, welfare, and health services can be devolved to, with primary responsibility in the hands of, the provinces.
The national Departments for Trade, Education, Welfare, and Health can be relegated to mere coordinating agencies, with the National Government focusing on national security, and law and order.
So, as the country recovers from this crisis (and it will), it’s time to bury federalism and move on. The present constitutional system may have its moments but it’s proven to serve us well.
Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.