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Amicus Curiae

‘Are we a nation of states? What’s the state of our nation?’

Enrique F. Nitura

October 06, 2017

That title is one of the lines in the hit Broadway musical, Hamilton. It tells the story of the
young, scrappy, and hungry United States of America when it was just gaining its
independence from England. It explores the crossroads when 13 colonies eventually
coalesced into one nation bound under a federal form of government.
 
The Philippines is at a similar crossroads now. Federalism has become a hot topic ever
since the campaign of the new president. It has been offered as a possible solution to
several societal problems of the Philippines. As a system of government, it is a radical
departure from our current system of unitary government. Currently, we have one strong
central government and several local government units which are subordinate to the
central government. In a federal setup, the two levels of government, namely the central
government and state governments, are of relatively equal stature and power. The most
well-known example of a federal system of government is of course that of the United
States. Several other examples exist, including Malaysia, Canada, Germany, Brazil,
Australia, Mexico, Russia, and India. In most of these countries, federalism started
when several smaller colonies or territories decided to unite and form one country.
Philippine federalism would be different in the sense that one unified government will
then form several states which are federated together to form one country.
 
At this point, we cannot be certain as to how Philippine Federalism might look like.
 
To be sure, there will be several aspects to consider when we shift to a federal form of
government. For one thing, the system of taxation and commerce will have to be
redefined to delineate which forms of revenue and taxation is reserved for the states
and for the federal government. There will also be a need to redefine the legal and
judicial system.
 
In most federal governments, the individual states have their own legal system,
Constitution, and courts. The relationship of these state-level legal system and federal-
level legal system must be properly defined in order to avoid friction and confusion.
Aside from these, the relations of the individual states among themselves must also be
properly defined. Definitely, the manner of doing business on both the federal and state
level will be affected.
 
In any case, a shift to a federal system from the present unitary system of government
would require a constitutional revision which is entirely different from a mere
constitutional amendment.
 
In the landmark case of Lambino v. Comelec, the Supreme Court differentiated between
an amendment and a revision. A change which “alters the substantial entirety of the
Constitution, as when the change affects substantial provisions of Constitution” is a
revision. On the other hand, an amendment is a change that “adds, reduces, or deletes
without altering the basic principle involved.” The difference between an amendment
and a revision is not just an academic distinction. Such difference determines which
modes can be used in order to initiate the constitutional change. Article XVII, Sections 1
and 2 of the 1987 Philippine Constitution provides that constitutional revisions may only
be implemented by Congress as a constituent assembly, or by a constitutional
convention elected by the people. As discussed in Lambino v. Comelec, Constitutional
revision cannot be implemented through a people’s initiative.
 
By all indications, a shift to a federal form from the current setup will entail a
constitutional revision. Such a shift would definitely entail a rewriting of a majority of the
provisions of the Constitution, resulting in far reaching changes in the basic
governmental plan. The only way, therefore, for a valid shift to federalism would be
through a constitutional convention or through Congress as a constituent assembly.
 
Despite not allowing for a direct participation by the people in the deliberations for the
constitutional revisions, a Constitutional Convention or Congress as a constituent
assembly does not entirely preclude the general public from participating in the shaping
of the new Constitution. There is still public participation before, during, and especially
after revisions are made because any change would still be submitted to the people
through a plebiscite. Only after the people approve it in a plebiscite will the new
Constitution, and a new federal form of government, will come into existence.
 
Several proposals for the mode by which amendments are to be made, as well as the
substantive amendments themselves have been filed in the present 17 th Congress. All of
which are being considered by the respective committees on Constitutional
Amendments. The Executive Branch has also weighed in on the possible constitutional
revisions by issuing Executive Order No. 10, series of 2016 which mandated the
formation of a Consultative Committee to review the 1987 Constitution.
 
The crossroads we are in right now calls all Filipinos to be vigilant and to participate in
the continuing project of nation-building. A Constitutional change gives all Filipinos a
shot to shape the country’s future and to think past tomorrow. Let’s not throw away our
shot.
 
This article is for general informational and educational purposes only and not offered
as and does not constitute legal advice or legal opinion.