The Philippines: Not ready for federalism

A glaring thing this pandemic exposed is that not many actually understand federalism. And this is so even among those advocating for federalism here in the Philippines.

To reiterate, many wrongly believe federalism is merely a division of governmental functions: one layer but of two levels. That’s not federalism. That’s what we have right now under the present Constitution and the Local Government Code. And our Constitution has enough flexibility for governance to be implemented top-down or bottom-up depending on Congress’ legislation.

What federalism actually is are two competing layers of government. Or to be precise: two parallel authorities each equally exercising sovereign power over the citizenry.

A good illustration of federalism (rather than merely highly empowered local governments) is the United States. Contrary to the impression given by mainstream media, primary responsibility to deal with the pandemic in the US is not with the national government or president Donald Trump. The lead officials are the individual State governors.

Trump can close US borders to foreigners and financially assist local governments. But as to the 50 States making up the US, the power lies with the State governors. The decision to close or open local government borders, measures to control the COVID-19 virus, the application of police powers on citizens — all belong not to Trump but to the individual States.

Had federalism been truly applied here, the lead officials confronting this pandemic would be (for example) the Manila or Pasig mayors, and the governors of Rizal and Cebu, regarding their respective local territories. President Duterte would be relegated to a supporting role, unable to do anything unless asked by the local government.

So, again, Berkeley law lecturer, former US Deputy Attorney General, and expert on executive power John Yoo’s instructive comments: “Under our 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. Stopping the spread of disease is not among them.” Thus, under the US constitutional system, while “Washington, D.C., controls the national borders and regulates interstate traffic,” the “primary authority to fight the pandemic rests in the hands of our state governors.” Only the States “can impose quarantines throughout an entire population, close institutions and businesses, and limit movement and travel.”

Another expert US federal system commentator is The Federalist’s John Daniel Davidson: “Federalism means the separation of powers between the federal government and the states”; and the “proper role of states during a pandemic is to issue lockdown orders, close businesses, and restrict travel for the sake of public health,” while the national government’s role is to “work with state governments to contain the virus.”

This is what’s meant by The Atlantic’s article: “Why There’s No National Lockdown”: “in the US … the approach has been more piecemeal. Many states and localities have ordered businesses, schools, and workplaces to close and limited the number of people that can gather in public. At least 24 states have directed all residents to shelter in place, or stay home. But other states have allowed businesses such as bars and restaurants to remain open to the public, or let their school districts decide whether to close schools.”

Hence, even though some State governors have issued relaxed or (vice-versa) ridiculously draconian measures (e.g., Michigan or Minnesota), Trump is nearly powerless to do anything.

But as pointed out here in a previous article (“China coronavirus killed Federalism,” March 26), when push came to shove, the instincts of most Philippine government officials, including federalism’s most ardent supporters, was for the National Government to take control of the situation.

It’s not correct to say the national government had no choice but to take the lead due to our unitary government system. Our Constitution and Local Government Code (Secs. 444 and 465) actually empowers governors and mayors to carry out emergency measures to confront the pandemic.

Yes, it’s good the national government recently pronounced it’s allowing local executives to take a greater role regarding this pandemic. But the key word is “allow.” Which means the power can be taken back. There is no “allow” in federalism, there’s just equal power sharing between local governments and the national government.

But from what we’ve seen so far, the mere idea of such equal sharing is incomprehensible to many. Rooted and seared deep in the governance psyches of our political class and citizenry is the belief that the national government must ultimately “call the shots.”

Bottomline, this pandemic revealed that the Philippines is not ready for a federal government. Perhaps it never will be.

It doesn’t mean though that everything need be concentrated within the national government. The present Constitution and the Local Government Code (the latter with some future adjustments) are more than enough for subsidiarity, greater local participation, and good governance to reign.

All that’s left needed is for government to summon the integrity and political will to apply our constitutional system as written.

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.

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