Largely because President Digong has been insistent about it, moves towards changing our political configuration from unitary to federal have not only been picking up speed but dashing forward, alarmingly. No, federalism does not alarm me at all. But when you take a step as gigantic as this towards realigning the distribution of the powers of government, you do not want to do that in reckless haste, but astutely and certainly in a studied manner.
There are maps now making the rounds showing how the country is to be divided into “regions” or “states” (we have not quite decided how we are to call these components of the Republic of the Philippines), many even identifying the state capitals. Lately, there was a well-written, scholarly piece on the legal consequence of federalism: the possibility that each state may enact its own codes and laws on matters beyond the legislative competence of the federal government. So will the North Luzon State (or Region) have its own civil code, penal code, commercial code? And of course, will that mean that someone admitted to practice law in the North Luzon State must qualify herself to practice in other states as well—very much like lawyers in federal jurisdictions must do?
But before getting into the minutiae, I propose a return to a consideration of premises. Many of those states that are federal are so because of historical antecedents: the cantons of Switzerland, the states of the United States, the regions of Germany, the provinces of Spain, the sultanates of Malaysia. So, what, if any, are the historical premises that support the thesis that going federal will be a step in the direction of “progress”, no matter that the latter concept may be muddled? The sultanates of Mindanao offer themselves as a ready answer, except that historically, in respect to them, we deal with fluid borders and conflicting claims. How many lay claim to the title of Sultan of Sulu—and how does one resolve such conflicts? More vexingly, the assumption that a “region” or a “state” encompassing all of Muslim Mindanao will solve the so-called “Mindanao problem” appears to be, at best, highly disputable. But the alternative, of course, is to create as many “states” or “regions” as there might be clearly identified and self-identifying ethnicities and tribes—and quite obviously this raises a lot of problems, fiscal and economic not the least among them.
Recently, a friend returning to the Philippines on a sentimental visit after she was a Rotex student 35 years ago, gifted me with a treatise on Canadian Constitutional Law, and thus far, it has been a delight for me to be acquainted with the challenges of a “bi-jural” (Canada is both common law and civil law—corresponding to the British and French sections of the country) jurisdiction and how well—and how creatively (in many cases)—Canada has coped with these. And in a country like that, it should not demand too much higher order reasoning to see why federalism is a felicitous order of things. But we have never been bi-jural in the Philippines. Whether we should have been or not is quite another issue, and lies in the realm of the hypothetical. Before the dawning of colonial government, what there were, historians tell us, were different tribes, each with its own normative customs and traditions. But aside from their relevance to the claims of indigenous cultural communities or indigenous peoples, these arcana from Philippine pre-hispanic history are hardly of any juridical importance and currency today. Shari’a is quite a different matter, and that is why it is (or at least a large part of it) is part of the Philippine legal system.
The law calls a “prejudicial question” one the resolution of which is indispensable or, in the very least, relevant to the resolution of another. I am insistent that these prejudicial questions relative to our bid for federalism be paid serious heed and given the serious and scholarly attention they deserve. Rewriting the Constitution on the basis of a policy of placation is not a good idea, for one thereby puts oneself on a very slippery slope indeed. Worse, federalism should not be the gambit of one with a cacique mind-set or just one more clever if costly maneuver in some surreptitious game-plan.
Finally, if we are indeed serious about going federal, then aside from the necessary mental energy that should now go into the study of various models (a study I have myself commenced in dead earnest), it confounds me what all this talk about reviving BBL or “updating” it is all about. BBL, as far as I understand it, rests on a different premise. It presupposes a unitary state that devolves some of its powers to an autonomous region—where “autonomy” admits of a gradation from “severely limited autonomy” to “analogous to statehood”. So, for heaven’s sake, let us make up our minds!
Studied and well-considered moves—that is what re-writing the Constitution should be and re-configuring our Republic. Such a huge project is not rushed, which is not to say that it must tarry for ages. Festina lente… Make haste lowly, one Roman adage advised. That should be wisdom for us today!
rannie_aquino@csu.edu.ph
rannie_aquino@sanbeda.edu.ph
rannie_aquino@outlook.com
