Why federalism?

By: Richard Heydarian - @inquirerdotnet

05:07 AM July 17, 2018

In theory, federalism aims for unity by recognizing diversity, redistributes fiscal and legislative
powers to the peripheries, and encourages local government units to become captains of their own
destinies.

On paper, everything looks beautiful. But reality is a completely different matter. And this is where
social science, rather than law, can make more substantive contributions to the ongoing debate on
Charter change in this country.

After all, the crafting of a new constitution isn’t only a legal matter. Instead, it’s primarily a leap of faith
into a new realm of political economy, namely the interface of power and finite resources.
Like any other Filipino citizen, I’m hungry for political transformation. I’m sick and tired of empty
slogans and the perpetuation of an unjust, extractive status quo.
As a probinsyano, born and raised in Baguio, I have carried, perhaps subconsciously, a liminal grievance
against “Imperial Manila.”

Our political system is an oligarchy disguised as a democracy. Our society simply has too many poor,
oppressed and marginalized citizens to deserve the label of democracy.

Yet, I can’t help but remain skeptical vis-à-vis the ongoing push for federalism, for at least five reasons.

1. First of all, is there a public clamor for Charter change? What’s the evidence?

According to the latest Social Weather Stations survey (March 23-27), only 14 percent of Filipinos
“strongly agree” with pushing for a federal form of government. As many as 75 percent of Filipinos, or 3
out of 4, are not even aware of the mechanics and implications of it.

According to the latest Pulse Asia survey (March 23-28), almost 7 out of 10 Filipinos oppose a shift
to a federal government. Clearly, there is no public clamor for it, only widespread and profound
public confusion as well as skepticism.

2. Second, I’m astonished at how a good number of pro-federalism proponents carelessly indulge what
scientists call “selection bias.” They enthusiastically cite flattering examples of federalism, such as
contemporary Germany or Switzerland, which happen to have circumstances entirely different from
those in the Philippines.

Few mention the brutal mid-19th century civil war in federal America, which claimed the lives of close
to a million individuals, or the breakdown of federal Yugoslavia into a genocidal anarchy not long ago.

Not many talk about the actual experience of federalism in fellow developing countries such as
Nigeria, India, Brazil, and Iraq, which have been wracked by deep inequality, persistent ethnic-
communal tensions, and uneven development throughout much of their recent history.

3. Third, what many proponents of federalism tend to overlook is that what they’re advocating for is, per
Aristotle’s distinction, a change in “form” of government, not in the “substance” of our political
system.
For example, France, Turkey and South Korea have a practically identical presidential-parliamentary
“form” of government, with a dominant presidency. Yet, their actual political systems have hardly
converged over the decades. Turkey has become more autocratic in recent years, while South Korea has
become one of the freest nations on earth.

And this brings me to 4.my fourth point of concern: Never trust simplistic, mono-causal explanations of
development, which have been largely discredited and ridiculed in cutting-edge social science research.

Even a cursory look at the works of leading political economists of our time, ranging from Francis
Fukuyama (think of “Political Order and Political Decay”) to Dani Rodrik (“One Economics, Many
Recipes”) and Kamer Daron Acemoglu (“Why Nations Fail”), reveals that nations fail and succeed not
because of the “form” of their government, but because of the nature of their institutions and state
policies.

5. Finally, what proponents of federalism are yet to demonstrate is our preparedness for Charter change.
It’s one thing to give more autonomy to local governments; it’s entirely another thing to ensure they
can stand on their own.

Currently, we know that only few regions, mostly in the industrialized heartland of Luzon, are capable of
raising enough taxes on their own. A shift to federalism means that the more prosperous regions will
be able to further concentrate on their own development, thus making themselves even more
competitive and attractive to capital and labor.

Yet, even in a prosperous nation like America, with two centuries of federalist experience, we are yet to
see poorer Southern and Midwestern states catching up with California and New York. America still
remains as one of the most unequal nations on earth.

I’m not against federalism per se. But as British philosopher-statesman Edmund Burke once memorably
warned, “Better to be despised for too anxious apprehensions, than ruined by too confident a security.”

-----

Aristotle
"Those constitutions that aim at the common advantage are in effect rightly
framed,” observed Aristotle in The Politics. “While those that aim at the rulers'
own advantage only are faulty," he warned.

The Greek philosopher underscored the importance of making sure “any

change of government which has to be introduced should be one which
men, starting from their existing constitutions, will be both willing and able to
adopt.”

After all, Aristotle explains, “there is quite as much trouble in

the reformation of an old constitution as in the establishment of a new
one, just as to unlearn is as hard as to learn.”
======
3 key facts about federalism around the world
Published February 6, 2018 3:09pm
By RICHARD JAVAD HEYDARIAN

The basic rule in comparative political analysis is to make sure one is comparing comparable countries. Otherwise,

one runs the risk of comparing apples and oranges -- a common practice that isn’t only analytically erroneous, but

perilously disingenuous.

In fact, this is among the first lessons that one is taught in basic political science courses in any modern university

and by any conscientious teacher. To my displeasure, it seems nowadays, amid the debate on Charter Change,

some folks are more than eager to highlight the success of developed nations such as Germany in order show that

federalism is supposedly the path forward for our country, if not a magic formula for our national conundrum.

The problem with this line of analysis is that it’s both erroneous and misleading. A more accurate comparative

approach would instead look at federalism experiences in the developing world, to which the Philippines belongs. In

short, we should first look at comparable countries, not pre-selected examples that are hardly comparable to our

conditions.

Third world federalism

Let’s look at Federalism in the developing world. The list is pretty interesting and quit sobering, since it includes both

ancient and new, capitalist and state-driven, and large and small nations, which range from Iraq, Sudan, Somalia,

and Ethiopia to Nigeria, Pakistan, Venezuela, and Brazil, among many others.

They are a diverse range of nations with various permutations of federalism, but a cursory look at these countries

reveals two things. First, persistently high levels of inequality within and among their federal states, not to mention

extreme poverty and hunger even among rapidly developing countries such as India, Brazil and Nigeria.

Double-taxation, bureaucratic inertia, and high levels of developmental unevenness are more than persistent in even

the most successful federalist experiences in the developing world.

Many of these countries have had federalism for decades, but it’s far from clear whether that has brought about any

significant and directly positive effect on national economic development. Federalism is obviously not the root of all

their problems, but it’s unclear whether it has helped solve their economic problems either.

Second, most of these countries continue to be wracked by ethnic divisions, micro-nationalist and secessionist

movements, and outright civil war in cases such as Iraq, Somalia, and Sudan, which split into two nations in 2011. In

the case of former Yugoslavia in Eastern Europe, the country eventually fell apart, descending into genocidal civil war

among Serbs, Coats and Bosnians.

Iraq is a cautionary tale, since federalism has simply reinforced pre-existing ethnic-religious divisions in the country,

which partly explains the rapid rise of the so-called Islamic State (IS) in Sunni provinces in the west and constant

power struggle between Arab Baghdad and Kurdish Erbil in the east.

Similar ethnic and micro-nationalist tensions are present across almost all developing federalist countries mentioned

above. Far from resolving the country’s internal divisions, federalism simply reified and reinforced them.

There are clearly lessons for ethnically divided nations such as ours. As one recent academic study emphasizes,

“The greatest risk is that federal arrangements can offer opportunities for ethnic nationalists to mobilize their

resources,” leading to further fragmentation of already-divided societies.

Exceptions, not rule

Now let’s talk about more straightforward success stories such as Germany.

First of all, the Philippines and Germany have completely different historical background and levels of institutional

development.

It goes without saying that I am all for emulating best practices around the world, especially learning from Germany’s

impressive green energy agenda (Energiewende) and trade and industrial policies, which explain its massive

economic success and resiliency even in a stagnating Europe.

But to imply or even argue that what works in the world’s leading industrial power will automatically work in a poor,

developing country is both unhelpful and misleading.

One should keep in mind that federalism was organic to Germany’s formation. Its federalist structure is rooted in

centuries of division and diversity among Germanic states -- until the Prussian monarchs began to consolidate a

growing number of them under one flag -- as well as a deep aversion to Hitler-like figures, which abused excessive

concentration of power in the office of the chief executive.

Many regions of modern Germany such as Bavaria were already well-established polities with their own defined state

institutions, customs, and collective memories.

It’s also the byproduct of the difficulties of absorbing former Eastern Germany, which was under Communist rule for

four decades.

Federalism was a sine qua non, therefore, for establishing a semblance of national unity, if smaller polities were ever

willing to join a large union. For those who are familiar with German federalism, they are more than aware of

the many problems in the system, which demand a separate article to expound on.

Other federalist countries such as Belgium and Canada have also largely failed to stem ethnic nationalism and

separatist sentiments among their major ethnic groups, particularly vis-à-vis the French-speaking populations.

Spain’s asymmetrical federalist experience is now confronting an outright crisis in Catalonia, which is seeking total

secession.

It’s institutions, stupid!

What proponents of federalism tend to overlook is that federalism per se neither explains national success nor its

failures. What matters, instead, are institutions.

Two of the most influential books in social sciences in recent years have emphasized the importance of institutions --

human-designed, regularized practices with specific politico-economic objectives -- in ensuring political stability,

democratic health and economic prosperity.

One is the book “Why Nations Fail”, which draws on cutting-edge comparative research by Daron Acemoglu from the

Massachusetts Institute of Technology (MIT) and British political scientist James A. Robinson from the University of

Chicago.

The central argument of the book is that what matters the most in determining national development is the presence

of inclusive political and economic institutions, rather than extractive-exclusionary ones.

Inclusive political institutions pertain to an accountable and transparent state, which is not dominated by a narrow,

self-serving political class. Inclusive economic institutions refer to modern patterns of economic productivity, which lift

the living standards of the majority of the population. This could come through robust industrialization and open trade

practices rather than resource-dependent and protectionist development.

The other major book is by Francis Fukuyama of Stanford University, namely his two-volume work, “Origins of

Political Order” and “Political Order and Political Decay”, which emphasize the importance of state-building and

bureaucratic capacity-building in ensuring national development and democratic deepening.

Both magisterial works show that whether federal or unitary, parliamentary or presidential, if a country has exclusive-

extractive institutions, it’s bound to fail. No wonder various forms of government and regimes have failed in the

Philippines and other similarly troubled developing countries, because what didn’t change was institutional

configuration of their societies.

So long as the Philippine state remains weak, with oligarchs controlling our political office and the economy, whatever

form of government we adopt is bound to fail. That’s why any Charter Change should come along with a more

comprehensive reform of our whole institutions, not just form of government.

Richard Heydarian is GMA Resident Political Analyst and author of, among others, “Asia’s New Battlefield: US, China

and the Struggle for Western Pacific” (Zed, London

-------------------------------

Based on a first reading of the Puno constitutional draft, my first impression is that there are good and bad provisions.

Hopefully, only the good will survive the constituent assembly process and the bad will be cast out. I am not so

optimistic that is the case, however, given the composition of Congress. Still but am willing to see how this unfolds.

The best provisions of the Puno text are in the Bill of Rights of the proposal (explained in full below) and in several

provisions scattered throughout the text that reform our politics (such as the self-executory anti-dynasty provision, the

provisions that institutionalizes voting for parties and proportional representation, and those that support political party

development). There are good provisions also in the sections on the Judiciary and the Federal Commissions

although, as I will write in another column, the revolutionary changes in the former—having four highest courts and

regional supreme courts—will be extremely challenging to implement.

The worst provisions of the Puno proposal emanate in the terrible choice the consultative committee made of keeping

the discredited presidential system, increasing and expanding further an already imperial presidency based on the

powers of the colonial governor generals of Spain and the United States of America, contradicting and negating the

decentralization principle of federalism and the libertarian and democratic tendencies of its Bill of Rights and

provisions on political reform. This, in fact, is the worst feature of both the 1935 and 1973 constitutions, that among

others allow presidents like Aquino and Duterte to oust chief justices on personal pique. There are many seeds of

dictatorship in the draft, including in the transition period where the President is given enormous power.

I reserve my views on the design of the Federal system being proposed. I am glad that we are establishing regions

and not states, and that the principle of asymmetry will govern the relationship between the Bangsamoro and

Cordillera regions and the Federal government. However, I am not convinced on the practicality, efficiency, and

effectiveness of the division of powers between the Federal government, regional governments, and local

governments. Related to this concern, I am also concerned about the design of the fiscal and revenue allocation

system being proposed. My initial analysis is that rich regions will benefit greatly from the proposed Federal design

and the poor regions will be worse off, the exact opposite of the outcome being promised. I am willing to be

convinced and persuaded that I misunderstand the proposal.

I have no such doubt with the new Bill of Rights being proposed, an effort led by Fr. Ranhilio Aquino, my dean at the

San Beda Graduate School of Law. A staple in every constitution, this section contains the declaration and

enumeration of a person’s rights and privileges which the constitution is designed to protect against violation by the

government and other individuals.

Arguably, the Bill of Rights of the 1987 Constitution was a reproduction of its predecessor, the 1973 Constitution, at

least in most of its main features, the constitutional commission of 1986 also introduced substantial amendments,

resulting in a much longer provisions. However, the proposed federal constitution provides for a much more

comprehensive bill of rights with 28 sections including a new section on environmental and ecological rights. In

contrast, the Bill of Rights of 1987 Constitution has only 22 sections.

While most of the rights contained in the proposed federal constitution are a reproduction of its predecessors, the

consultative committee chose to introduce novel principles and concepts which explicitly spell out, in no uncertain

terms, certain rights of individuals to reflect present-day realities.

Substantially recreated in the proposed federal constitution which are also found in the 1987 Constitution are Civil

and Political Rights with a number of alterations. This article includes the right to life, liberty and property without due
process; freedom of religion, press, and expression, rights of the accused, the inviolability of the right to privacy, right

to travel, right to information. The right against unreasonable searches and seizure is reiterated but here it now

extends to the conduct of unlawful unreasonable surveillance. Surveillance, not just searches, will only be allowed if

authorities obtain both a search warrant and surveillance warrant. Individuals can demand that government agencies

delete illegally obtained information related to them.

Social and Economic Rights, which used to be scattered in different articles in the 1987 Constitution or merely

implicitly stated therein, can now be found in the bill of rights of the proposed federal constitution. As provided, every

person is declared to have the right to adequate food, universal and comprehensive health care, quality education,

adequate and decent housing, livelihood and employment opportunities.

A new section on Environmental and Ecological Rights states that every person has the right to a healthful

environment, clean air, clean water, clean soil, and clean surroundings; to seek compensation for damage to the

environment; and to seek “immediate relief” from courts through the writ of kalikasan and other protective writs.

What is radical is that all of these rights are self-executory and actionable. Citizens can immediately file lawsuits

against government agencies and non-state actors to enforce their rights and seek redress if they are violated. For

sure, some will claim that these rights will be abused and that this will cause congestion. But that’s not the case, as

we have seen in the area of environmental rights, where the Supreme Court has been sympathetic to citizens in the

rule of procedure it promulgated and its precedents. The rule and these precedents have not been abused, nor have

they congested the courts.

One significant step taken by the consultative committee is to elevate the Commission on Human Rights into a

constitutional commission with the responsibility to investigate human rights violations both by state and non-state

actors. Under the present set-up, the Commission on Human Rights has a limited mandate. It is only authorized to

accept complaints and investigate. But without prosecutorial powers, the CHR’s hands are tied. As a constitutional

commission, the existence of the Commission on Human Rights is guaranteed. It becomes insulated from partisan

politics and protected from emasculation by state actors like as what previously happened when it ran the risk of

being deprived of its annual appropriations by Congress.

Another important provision is the explicit statement that violations of human rights include those not only guaranteed

by the Constitution but also international human rights covenants and treaties to which the Philippines is a signatory.

For sure, if the new Bill of Rights is approved, thanks to Chief Justice Puno Fr. Aquino and their colleagues, it would

be one reason for voting yes in the referendum. It would be such an irony that the best Bill of Rights we would ever
have is adopted during a government with the worst human rights record. There is of course precedent in that as the

1973 Marcos Constitution also had a strong Bill of Rights which the dictatorship simply ignored and disregarded.

Nonetheless, I would still be surprised if the Puno-Aquino Bill of Rights survives the constituent assembly process.

If only one could choose and pick the text that is good and throw away the bad, that would be perfect. But that is not

going to happen here. Hard decisions will have to be made. I hope to help my readers make that decision in the

months to come.

-----------------

What’s new?
Among the reported new features of the draft constitution are the introduction of 18
federated regions corresponding to the existing regions in the current charter.

These regions will also have the power to impose taxes, a power which it will
concurrently wield with the national government.

The regions will be headed by a regional director and a deputy director, who will
be chosen by the regional legislative assembly, previous reports say.

Regional legislative assemblies will be composed of representatives from the

provinces, highly-urbanized cities, and the political parties.

The elevation of the Commission on Human Rights as a constitutional

commission and the inclusion of socio-economic and environmental rights into
the Bill of Rights are also included in the draft.

Provisions on banning political dynasties, proscribing switching political

parties, and strengthening political parties have similarly been included.

The language of certain provisions been altered so as to emphasize the state’s

opposition to regional secession, giving the president sweeping power to prevent
any attempt at secession.
Puno, chair of the committee, had in previous months advocated the introduction of the
ban against political dynasties.

Though a number of administration critics are wary that the proposed constitution may
only have been written to serve the purpose of those in power, some in the legal
profession choose to call for sobriety and vigilance over fearful speculation. — With
reports from Jasmine Salanga

Please note though that this draft is a proposal, still subject to the mechanisms for amending the Consti per the
1987 Consti provisions. Let’s be wary though of the possible conditioning done to the public that this is as
good as final. We will ultimately vote in a plebiscite.

— ross (@rosselle) July 3, 2018