Castillo - Federalism and Its Potential Application to the Republic of the Philippines

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FEDERALISM AND ITS POTENTIAL APPLICATION TO THE

REPUBLIC OF THE PHILIPPINES

A Thesis Submitted to the

Faculty of the Graduate School of the

University of Santo Tomas

In Partial Fulfillment of the Requirements

For the Degree of Master of Arts (Political Science)

RONALD M. CASTILLO

March 2011

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ACKNOWLEDGEMENT

“Ad majorem dei Gloria” (that in all things God may be glorified). This

work is a blessing from the Creator and to him the researcher pours out the cup of

his highest gratitude and sings his most heartfelt praises. The researcher also

proffers his deepest thanks to these individuals, vessels of the aid of the Almighty.

In their very personal way, they each played an important role to him as he

undertook the task of searching and documenting knowledge of the science of

power for this paper.

Dr. J. Fernand Tanguay O.P. – his thesis adviser, who took a fledgling

graduate student under his wing, and under whose tutelage this work was polished

into what it is now. His first hand and scholarly expertise in the researcher’s field

of study is matched by his patience, understanding, and caring of a true Father in

both the ecclesiastic and familial sense.

Ms. Maricel B. Punzal – English editor and the researcher’s ashke (Trans.

from Tayledras1 “beloved”), who has always been there for him as both friend and

counselor.

Guiding mentors at the Graduate School who have shared their own

unique sparks of wisdom in training this humble researcher. The gems of wisdom

that each of them has shared to the researcher became invaluable tools in

composing this thesis: Dr. Jaime Jimenez (Socio-economic Development), Dr.

Consuelo Estepa (National Security Administration), Dr. Michael Anthony Vasco

1 Fictional language in Mercedes Lackey’s The Heralds of Valdemar novels. Among the favorite

set of books shared between the researcher and his editor.

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(Thomasian Logic and Critical Reason), Dr. Milagros Tanlayco (Research

Writing).

His inspiring undergraduate students from different colleges and

disciplines; Karen Deus, Jeaneth Casimero, Joan Trinidad, Kamille de Leon, Nico

Pascual, Maicah Manapat, Hancellie Abrero. Their particular brightness of mind

and warmth of friendship were foods for the soul for their professor as he

undertook his thesis writing.

The very helpful staff of the UST Graduate School and the Office of

Graduate Research: Ms. Rowena Batoon and Ms. Christina Barbosa.

Ms. Edlyn Briones – who may not have been the researcher’s student, has

been a true and very much appreciated friend during critical times of the research

process.

Ms. Cecille Salorio, his dear aunt, whose young at heart attitude has been

with her nephew, reminding him to have fun and enjoy life as he pursued his

career goals career.

Ms. Jennifer Normand, his ever-dearest cousin and kababata, whose bond

remains even with the physical distance of the oceans.

Mr. Justin C. Aricheta – his first-brother, the researcher’s inspiration not

just in writing this thesis, but in many of his endeavors.

Most importantly, Mrs. Asuncion M. Castillo – his mother, whose love

and support has always been there for her son even beyond death. Her

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appreciation for his son and his works has always been the driving force for his

future achievements.

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DEDICATION

This Opus is made in undying memory to the researcher’s mother

Mrs. Asuncion Castillo y Maglaqui

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ABSTRACT

This research reviews the characteristics of federalism and explores the possibility of it being used to create, in due course, a new XXI century Constitution, in keeping the political and economic development of the Philippines in this age of globalization. To achieve this objective, four federal constitutions operating in successful countries (three are G-8 members) were comparatively studied for similarities. Federalism was created by the Americans at the Philadelphia Convention of 1787 better known as the Federal Convention. It is being used by 24 countries spread across continents. This in itself is a justification to pursue a possible application to the Philippines, a country of dispersed inhabited islands, belonging to different regions and cultures but all united under one strong single national identity. Based on comparative study, there are seven essential features of a federal political system: 1) Two levels of government existing in their own right under one constitution; 2) Central government directly elected by the electorate of the whole country, making laws and taxation applicable to all citizens; 3) Regional government units exercising constitutionally delegated powers over its members; 4) Allocation of sources of revenue between the two levels of government; 5) Written constitution as binding contract among regional units, and which cannot be amended unilaterally; 6) An umpire to rule on disputes; 7) Processes and institutions to facilitate intergovernmental interaction and coordination. Federalism may be symmetric or asymmetric, centralized or decentralized. However, Federalism facilitates devolution of legislative and administrative power, and de-concentration of economic powers while uniting the varied regional units.

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TABLE OF CONTENTS

Title Page …………………………………………………………………. i

Certificate of Originality …………………………………………………. ii

Approval Sheet …………………………………………………………… iii

Acknowledgement ……………………………………………..…………. iv

Dedication ………………………………………………………………… vii

Abstract ………………………………………………………………….... viii

Table of Contents …………………………………………………………. ix

List of Tables ……………………………………………………………... xiii

List of Figures …………………………………………………………….. xiv

CHAPTER I INTRODUCTION

A. Background of the Study ……………………………………….. 1

B. Statement of the Problem ……………………………………….. 11

C. Significance of the Study ……………………………………….. 12

D. Objective of the Study ………………………………………….. 12

E. Theoretical Framework

Federalism …………………………………………………….. 13

Principle of Division of Powers ………………………………. 14

Constitutional Division of Power …………………………….. 15

Geopolitical Division of Power ………………………………. 17

F. Conceptual Framework

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General Framework …………………………………………… 19

Specific Framework …………………………………………... 24

G. Scope and Limitation …………………………………………… 24

H. Hypothesis ………………………………………………………. 25

I. Definition of Terms ……………………………………………… 26

CHAPTER II: LITERATURE REVIEW

A. Foreign Literature ……………………………………………….. 31

Federalism and State Building ………………………………… 31

Federalism and Management of Heterogeneous Systems …….. 41

Federalism and Political Economy …………………………… 44

B. Local Literature …………………………………………………. 49

Federalism and the Philippine Situation ………………………. 49

CHAPTER III: RESEARCH METHODOLOGY ………………………... 53

CHAPTER IV: DATA PRESENTATION AND ANALYSIS

A. The Seven Essential Features of a Federal Political System ……. 58

1. Two levels of government existing in their own right under,

one constitution ………………………………………………… 58

2. A Central Government directly elected by the electorate of

the whole country, making laws and taxation applicable to all

citizens ………………………………………………………….. 61

3. Regional Government Units exercising constitutionally

delegated powers over their members ………………………….. 72

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4. Allocation of sources of revenue between the two levels of

government ……………………………………………………... 80

5. A written constitution as a binding contract among regional

units, and which cannot be amended unilaterally ……………… 83

6. An umpire (Supreme/Constitutional Court) to rule on

disputes ………………………………………………………… 85

7. Processes and Institutions to facilitate intergovernmental

interaction and coordination …………………………………… 93

B. Three Potential Applications of A Federal Convention to the

Republic of the Philippines ………………………………………… 99

1. Consolidation of Territory through Devolution of

Legislative, Administrative, and Judicial (lower court) Powers

(Geopolitics) ……………………………………………………. 99

2. Accommodation of Cultural Idiosyncrasies through

Devolution (Political Culture) …………………………………. 110

3. Stimulation of Development and Managing Regional Fiscal

Disparities through Deconcentration of Economic Forces

(Political Economy) …………………………………………….. 118

C. Simulation ……………………………………………………….. 122

CHAPTER V: SUMMARY OF FINDINGS, CONCLUSION, AND

RECOMMENDATIONS FOR FUTURE RESEARCH

A. SUMMARY …………………………………………………….. 126

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B. CONCLUSION …………………………………………………. 130

C. RECOMMENDATION ………………………………………… 133

BIBLIOGRAPHY ………………………………………………………... 135

APPENDIX: Comparative Matrices of Relevant Constitutional Provisions

in the Model Countries …………………………………………………… 149

CURRICULUM VITAE ………………………………………………….. 178

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LIST OF TABLES

Table 1 - The Four Philippine Constitutions …………………………… 8

Table 2 – Facilitating Processes and Institutions in a Federal System …. 93

Table 3 – Geographical Comparison of the Four Model Federations and

the Philippines …………………………………………………………… 103

Table 4 – Demographic Comparison of the Four Model Federations and

the Philippines ……………………………………………………………. 112

Table 5 – GDP Per Capita (PPP) of the Four Model Federations and the

Philippines ……………………………………………………………… 114

Table 6 – Regional Average Income and Average Savings of Families at

Current Prices (values in thousand pesos) 2000, 2003 and 2006 ……… 115

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LIST OF FIGURES

Figure 1 – Concept of the Federal System ……………………………….. 20

Figure 2 – The Philippines with Federal National State and the Regions as

Components States ……………………………………………………….. 21

Figure 3 – Research Design ……………………………………………… 53

Figure 4 – Map of the U.S. Federation Featuring the Regional Levels (50

States) ……………………………………………………………………. 104

Figure 5 – Map of Canadian Federation Featuring the Regional Levels

(10 Provinces and 3 Territories) …………………………………………. 105

Figure 6 – Map of the Australian Federation Featuring the Regional

Levels (6 States and 2 Territories) ……………………………………….. 106

Figure 7 – Map of the German Federation Featuring the Regional Levels

(16 Länder) ………………………………………………………………. 107

Figure 8 – Map of the Philippine Archipelago Featuring the Regional

Levels (17 Regions) ……………………………………………………… 108

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CHAPTER I

INTRODUCTION

“…law must attend to the ordering of individual things in such a

way as to secure the common happiness.” - St. Thomas Aquinas, Summa Theologiae

A. Background of the Study

1. Liberalization of Philippine Democracy

In more than four centuries, Filipinos have expressed their love of freedom

and liberty. Through historic struggles and endeavors, the Philippine political

system culminated to an independent state ruled under the principles of

democracy. The Philippines has had four constitutions including the present

Freedom Constitution.1 These constitutions have always followed principles of

the democratic ideal. Now, twenty two years after the advent of this Freedom

Constitution, the necessity for studying constitutional changes or even the

adoption of a new constitution arises.

The problem originates from the possibility that one of the democratic

principles can be abused or mismanaged. Thomas Hobbes said that democracy is

based on the situation wherein people gather together to establish or manage a

government. To this he adds that by virtue of voluntarily gathering together for

such a purpose, these individuals agree to be ruled by what is the consensus

among the majority (Tuck and Silverthorne, 1998). From this, a new power 1 The 1987 Constitution has been dubbed “Freedom Constitution” since it was implemented after the restoration of democracy and after the fall of the dictatorial regime of former President Ferdinand E. Marcos.


arose. This is the political power of the majority. This majority wields both the

power to make decisions for everyone, and the power to implement such

decisions.

The majority power is just the same as the concept of the General Will of

Jean-Jacques Rousseau in The Social Contract. According to the renowned

political philosopher, the General Will can sometimes not lead towards the good

of all, since it is the result of contending individual wills (Will of All). There is a

chance that groupings of people’s wills may not anymore be representative of the

common good but only the good of a certain group or faction (Dahl, Shapiro, and

Chebub, 2003).

The majority power as applied to the Philippines could lead to an illiberal

democracy. The Philippines is an archipelago composed of 7,100 islands.

Several of these islands are populated by peoples of unique cultures, languages,

and traditions. Governing over all these territories and peoples is a central

government located in Metro Manila. Manila is a metropolis, center of both

government and economy, at the heart of the largest island located to the north of

the country. Observing the Philippines, one would notice how unequal the

regions are. It is noticeable that Metro Manila and its immediate adjoining cities

enjoy greater opportunities of development. In contrast, the farther one territory

is from the capital, the less opportunities for development it has.

In a study on the political philosophy of Jean-Jacques Rousseau, Miller

quoted Rousseau as advocating the idea that countries with a large extent of


jurisdiction should steer clear of placing too much power in capital cities (Miller,

1984). In addition, John Stuart Mill also considers centralization as detrimental to

the promotion of liberty in a political system (Collini, 1992). A more recent

study, Fareed Zakaria (1997), managing editor of Foreign Affairs Journal

emphasized that compared to the dangers of anarchy, “the greatest threats to

human liberty and happiness” in contemporary times result from “brutally strong

centralized states.”

A democracy is simply a determination of the source of and/or holder of

the power to rule. A charter that guides a political system that promotes true

liberty of the people must have proper provisions. It is the Rule of Law that is

basically the source or foundation of the people’s liberties. According to John

Locke in his Second Treatise on Government, the purpose of the Law is not to

remove freedom or constrict it, instead the purpose of law is to safeguard freedom

and extend its benefits to more people (Spector, 1992). Locke further argued that

the blessings of liberty cannot be had if there is no law.

This research extended such a concept to a dysfunctional law, one that

does not accomplish the common good. In order to secure the blessings of liberty,

the law must contain proper mechanisms. Without proper mechanism in the law,

then it will become what Locke was against – removal of freedom and constraint

to liberty.

This constraint occurs in the Philippine democratic system due to the

centralization of power in the hands of the national government created by the


present constitution. The 1987 Constitution has provided for a degree of

decentralization and local autonomy. Yet as current situations in the Philippine

political economy portray, these provisions are insufficient to stimulate political

liberty for the various regions and local governments under the national

government. Observations of economic indicators from years 1970– 2005 show

great gaps between the National Capital Region2 and the other regions in terms of

1) domestic production, 2) economic growth rates, 3) infrastructure, 4) access to

utilities such as water and electricity, 5) poverty incidence, and 6) the GINI3 Ratio

(Hill, 2006).

Such a situation exists because the powers to plan, organize, and control

remains largely in the hands of the national government. In addition to this,

economic means to pursue development are concentrated in the same way. Power

is identified with the national government as it has been granted by the

constitution. The national government merely decides what responsibilities to

delegate to the local government units. In this circumstance, the little leeway in

planning, organizing, and control that these territories have becomes restrained

rather than increased.

In comparison with European history, political participation increased

when power was re-concentrated towards “local governments and regional

councils” (Zakaria, 1992).

2 The region where Metro Manila and the Seat of the Philippine Central/National Government is located. 3 Human Development Index – Standard economic measure of income equality/inequality.


Hence there is a necessity to push for the upgrading of the Philippine

Constitution from a simple democratic system into liberal democratic form of

government. John Rawls, prominent political scientist, said in his principles of

justice and fairness, “…each person is to have an equal right to the most extensive

basic liberty compatible with similar liberty for others” (Zwolinsky, 2009). And

it is not just simply the rights and liberties of individuals that must be

engendered in the constitution to promote liberal democracy. With the

Philippines being an archipelago having heterogeneous groups of peoples, the

rights and autonomy of regions must also be given due recognition.

According to the angelic doctor, St. Thomas Aquinas, caution should be

observed with the changing of human law for change lessens its binding strength;

the law may be altered only if such change can produce greater benefit for the

common good, thus furthering its capacity to bind (Dyson, 2002).

A system of government that not only remains in stasis with no

development but also has a tendency to promote the interests of the few instead of

the common good, has to be modified for the better. This has to be made in such

a way that the principles that champion the rights and liberties of individual

citizens and their respective regions are incorporated. Federalism can be an

option for such a change.

The historian Arthur Schelesinger (1997) enumerated among others the

high impact of culture and religion as a stress on democratic systems. In the

Philippine context, there is a great variety of regional cultures, and more


specifically, a great divide between the Muslim population in Mindanao and the

Catholic majority. A Filipino scholar, Nathan Gilbert Quimpo (2001), attributed

this situation among the reasons for the 40 years armed conflict in Mindanao.

This research can help in finding a solution to this problem since it explores the

capacity of asymmetric federalism to grant regional autonomy while retaining

territorial and sovereign integrity.

2. Tracing Back Philippine Constitutions

The Philippine political system has had a succession of four written

constitutions including the current one. First was the Malolos Constitution of

1899. Second was the Commonwealth Constitution of 1935. Third, the Marcos

Sponsored Constitution of 1973. And finally, there is the Freedom Constitution

of 1987.

The constitution of 1899 was made as a result of the Filipino desire for

liberty and self-government. Yet it was unable to have a full span of time to be

implemented and be enjoyed by the Filipinos. This was because the historic event

of the Philippine-American war escalated a month later. However in its time, this

constitution contained principles that promoted liberty and democracy, as well as

the separation of church and state. Its’ first article declared that the citizens are

the source of sovereign powers (Article 3, Title 1). In addition to this, Article IV

contained a list of rights of the citizens of the republic.

The 1935 Constitution was created under the auspices of the American

Civil Government. This Constitution finally established the Philippines as a free


country. And like its predecessor, it promoted the ideals of liberty and

democracy, and separated church and state. It also contained a bill of rights and

provisions for the extension of the right of suffrage to women (Article V, Section

1).

The Filipino state fathers decided to keep the unitary system of

government rather than promoting a federal system following the model of the

USA, undoubtedly because they judged that the country had to be united given the

fragmented islands and cultural groups.

The content of the 1973 constitution in terms of democracy and liberty

follows the same principles, yet its’ intent was different from its’ predecessors.

According to Philippine Historian Sonia Zaide, the movement then for

constitutional change was spurred, among others, by necessities of empowering

the Commission on Elections and the General Auditing Office, and the necessity

of decongesting the President’s powers (Article, V, Section 1). But when the

constitution was finally drafted and ratified it was one under the sponsorship of

President Marcos’ desire of maintaining his dictatorial regime over the country

(Zaide, 1999).

The 1970’s events portrayed that the Filipino’s wanted a revised

constitution that adapted to the needs of the time (i.e. promotion of democracy).

But as history unfolded, a revised constitution was made; however, this revised

constitution suited not the needs of the people. Rather it suited the needs of

President Marcos.


Table 1.

The Four Philippine Constitutions

CONSTITUTION BACKGROUND FEATURES

Malolos

Constitution:

1899

Filipinos have been

fighting for freedom

from Spanish

colonization (Philippine

Revolution 1896-1899).

Promotes democratic ideals;

Unitary; Guides the Chief

Executive to observe

decentralization and

administrative autonomy ( Title

VII, Article 47).

Commonwealth

Constitution:

1935.

The yoke of colonial

government was about

to be removed, Filipinos

were gradually trained

by the United States of

America in the art of

Government.


Unitary; No provision for

decentralization.

Marcos

Sponsored

Constitution:

1973.

Period of Martial Law

under President Marcos.


Unitary; Promoted the

Parliamentary System of

government; Contained

provisions for promoting local


The 1973 constitution is also different since it advocated a parliamentary

system of government as opposed to the presidential system of the previous

constitutions.

The 1987 Constitution went into effect after the People Power revolution

toppled the Marcos Dictatorship. It reiterated the principles of democracy,

liberty, and human rights. In addition, it restored the presidential system of

government and focused on the accountability of government officials to the

people.

autonomy of local government

units ( Article II, Section 10).

Freedom

Constitution:

1987

People Power

Revolution against

President Marcos and

Restoration of

Democracy.


Unitary; Contained provisions for

decentralizing local government

units (Article 10, Sections 3 and

14), for promoting autonomy of

local government units (Article

10, Sections 2 and 5), and for two

Autonomous Regions (Article 10,

Sections 15-21).


It is also important to note that the 1987 Constitution was drafted not by

representatives chosen by the people, but by forty eight Commissioners appointed

by the de facto and eventual de jure President Corazon Aquino (De Leon, 2008).

These four constitutions provided a system guided by democratic ideals

through a representative national government. The national government in each

of these constitutions followed the unitary system of government, in executive

and administrative authority over the whole Philippines in the hands of the

President.

It is worth noting that all four constitutions followed the unitary system.

Three of these constitutions, namely the 1899, 1973, and 1987 expressly desired

degrees of autonomy for local government units. For example, the 1899

Constitution stipulates that the president must adhere to “the most liberal policy of

decentralization” (Article VII, Title 57) in administering over towns and

provinces. Both 1973, and 1987 Constitution incorporated the promotion of local

autonomy in their declaration of state policies. In addition to this, the 1987

Constitution added provisions on decentralization; and for special autonomous

regions such as that of Muslim Mindanao and that of the indigenous Cordilleras.

It can be observed that the early constitutions aimed at creating a unified

nation out of a diversity of cultural heritages, scattered on so many islands. In

world history, the centralization of the legislative, administrative and judicial

authorities goes back to Napoleon who wanted to unify his Empire to facilitate the


control of all elements of power. It is a characteristic of former colonies to have

"anything that counts" in the capital city.

This thesis sought to discover a potential 21st century constitution for the

Philippines. Through a methodical system, it can adapt to the political,

geographic, economic, and cultural characteristics of the country. And thereby

promote the blessings of liberal democracy, economic fairness among the regions,

and strengthen its national unity.

B. Statement of the Problem

This study sought to show the relevance of federalism principles of

decentralization and de-concentration as important constitutional concepts as

applicable constitutional concepts to the Republic of the Philippines.

In doing so, the study necessitates investigation of the following queries:

1. How does the federal system of government promote liberal

democracy?

2. How does the federal system of government create equal opportunities

for regional economic development?

3. How does the federal system of government help preserve national

unity?

4. Why is the federal system of government an appropriate system for the

Republic of the Philippines?


C. Significance of the Study

This research holds credence to the study of political science by being able

to study the suitability of changing the political system of the Philippines from

unitary to federal by a comparative analysis of model federal countries.

Moreover this research is important because:

Politically, it studies a method of making the Philippine political system a

liberal democracy through federal decentralization of power while preserving

national unity, territorial and sovereign integrity.

Economically, it explores an avenue for stimulating Philippine political

economy through de-concentration of economic forces throughout the various

regions of the country.

Administratively, it researches on a more publicly accessible government

system through the de-concentration of administrative authority and skills.

Lastly, this research can explore a solution towards the settlement of

armed conflict in the region of Muslim Mindanao.

D. Objective of the Study

This thesis aims to analyze the potential application of federalism for the

Republic of the Philippines. Furthermore, it intends to discover how federalism

can be an option for the liberalization of Philippine democracy, while preserving

national unity, sovereign and territorial integrity; and for the creation of

possibilities for regional development in the Philippines.


E. Theoretical Framework

1. Federalism

The conduct of this study was guided by the principles of federalism.

Federalism as a political science theory has been first codified in The Federalist

Papers by American legislators Alexander Hamilton, John Jay, and James

Madison in 1788. From then on, several scholars have focused on federations.

Among such scholars included Daniel J. Elazar, who became founder of the

Center for the Study of Federalism and author of multiple studies on the same

subject.

In 1776, the United States of America was able to achieve the innovation

of the union of former colonies turned independent states into a composite

structure of a federation, and according to Lipson (1997) this [federation] has

been a “distinctive, enduring, and influential contribution of America to the art of

government.” It is an innovation since it was the Americans who experimented

with and formalized the notion of federation.

According to the United Nations (2006) and the Forum of Federations

(2009), out of 193 countries in the international community, there are 24 countries

having federal political systems with their own idiosyncrasies. Among these

countries the United States of America, founded 1776; Canada, founded 1867;

Australia, founded 1901; and Germany, founded 1949; are states that have

successful experiences in federalism, decentralization, liberal democratization,

and regional economic development.


Liberalization and regional economic development can result from

federalization and decentralization because the powers that are geographically

distributed are the following: legislative, executive and administrative, since these

are the standard “active” powers of the sovereign. It coincides with political will

and free management particularly when it is made more accessible to the hands of

the common individual or of the specific regional or sub-national governments in

a specific territory.

Distribution of power can either be guided by decentralization or

centralization policies. It is important to note though that decentralization exists

both in unitary systems and federal systems. The same holds true with

centralization. Federal and unitary systems can be both centralized in authority

or vice versa. It all depends on the manner that a country chooses to do so.

Decentralization works side by side with de-concentration. While

decentralization focuses on power, de-concentration focuses on the economy and

administration. This research holds the theory that federalization coupled with

proper decentralization and de-concentration may preserve liberalization and

regional economic development, at the same time, it may promote national unity,

sovereign and territorial integrity.

2. Principle of Division of Powers

In an essay in memory of Daniel J. Elazar, Ronald Watts has quoted the

esteemed political scientist as defining federalism in the context of being “a

covenant that combines self-rule with shared-rule” (Watts, 2000). It is this very


concept of federalism that holds significance in this research. Self-rule and

shared-rule follow a system of division of powers which is important for

liberalization and regional economic development.

Within the government, power can be split in two ways: separation and

division. Federalism is concerned with the division of power. In the book

Comparing Political Systems (Bertsch, 1991), division of power is considered as

vertical since it follows successive levels (or tiers). It has government agencies

that exist in at least two levels: local and national. James Danziger in his book

Understanding the Political describes this division of powers as “areal” or “by-

area” since it follows geographic locations. This is so because the spread of

authority is divided by region or provinces.

3. Constitutional Division of Power

Federalism is closely related to the concept of decentralization. Both

federalism and decentralization distributes governmental powers in levels or

geographic methods. Yet, the unitary system can also decide to decentralize

while remaining unitary. However, federalism is unique in its manner of dividing

power.

Guided by the principle “Potestas delegata non potest delegari”4 (Moreno,

1998), in a unitary system of government, the constitution grants governmental

powers to the national government. The national government in turn gains the

prerogative to delegate powers and responsibilities to the local governments if it 4 Delegated authority cannot be delegated {Trans. From latin in Moreno’s Philippine Law

Dictionary.


decides to decentralize. The national government retains supervision and

practically holds a patriarchal relationship with the local government. The powers

that the unitary central government can delegate are the “gray areas” or powers

unspecified by the constitution. Hence the unitary central government cannot

delegate the powers that have already been delegated to it by the constitution.

In comparison, in a federal system, the constitution delegates powers to

both the federal government (national state) and regional/provincial governments

(component states). This is a Supremacy of the Constitution rather than

supremacy of the central government, thereby supporting the rule of law.

This is beneficial because, component states do not have to be dependent

to the federal state since they have pre-defined powers and responsibilities within

their jurisdictions. The removal of the patriarchal relationship makes the

regions/provinces more independent and capable of using their own political wills

and resources for their own benefit. In this situation, component states can even

enter into political and economic relationships with each other. Moreover, these

states can have healthy economic competition for the pursuance of development.

Since the power of the component states in a federal system come from

the constitution and not from the national state, the political system becomes more

liberal with the promotion of regional/provincial autonomy in a community of

regional or provincial states. Autonomy promotes, among other benefits, the

securing of happiness of the region/province and by extension – the citizens. In


doing so, these regions/provinces would choose to remain united with each other

and preserve the territorial and sovereign integrity of the national state.

4. Geopolitical Division of Power

The federal division of power is geopolitical in nature. Federations are

characterized by alliances and covenants between politically organized groups.

This is illustrated in ancient times during the Roman and Ottoman Empires (Flora,

1999), in the time of the founding of the United States of America, and during

these contemporary times. Empires and current federal countries all have either

wide extent of territories, far flung areas, or a number of distributed islands. Due

to distance, difficulty of travel or communication from the capital, some of the

territories and provinces require to be placed under rulers with properly defined

authority to make and implement decisions for the purpose of efficient

management.

Federations have two geographic levels: the upper level in charge of

national concerns covering the entire territory, and an intermediate level in charge

of respective local concerns by region or province. These intermediate levels by

virtue of geographic distance, location, or racial and ethnic composition have a

distinct socio-political existence. By the constitution delegating power, authority

and jurisdictions, they gain adequate political and managerial powers. By virtue

of geographic factors coupled with constitutional delegation of powers, these

intermediate level states are autonomous ‘parts of a whole’ comprising the

national state.


Land, distance, and other geographic factors such as dispersed islands are

not the only geopolitical factors in a federal system. In political culture, the

people occupying a particular land area are usually united by race, language,

history, customs, religions and traditions. Sometimes a country can be composed

of a variety of these groups. These groups can have separate interests and

idiosyncrasies that can cause stress to the unity, peace, and security of the

country. Decentralization and de-concentration in a federal system allows

accommodation of the individualities of these groups as represented by their

regions/provinces.

5. Handling of Gray Areas

Aside from simple interaction, there is the existence of gray areas. Certain

powers and responsibilities between the national state and the component states

are blatantly obvious in a written constitution. Yet, it may sometimes occur that

some powers and responsibilities are not properly delegated. These are the gray

areas.

Adjudication is an important concern in federalism in addition to the

division of power. The existence of individual intermediate level states

interacting with each other and interacting with the national state (not to mention

interacting with society) eventually leads to disputes between such power holders.

Thus the concern arises on to whom and how the power to adjudicate must be

organized. The third sovereign power of government – the judicial power – must


be protected in its neutrality between the national state and the component states.

This ensures the perpetuation of regional/provincial liberty and fairness.

F. Conceptual Framework

1. General Framework

For a better understanding of the federal system, this thesis used two

conceptual diagrams: one followed a general concept, and another applied it to the

Philippines. Figure 1 was inspired by Daniel J. Elazar’s concept of “self-rule

combined with shared-rule” (Watts, 2000). According to Elazar, federalism is

“the linking of individuals, groups and polities in lasting but limited union in such

a way as to provide for the energetic pursuit of common ends while maintaining

the respective integrities of both parties”. It is illustrated in the context wherein

there are two levels of power in a federal political system. The first level is at

the center (hexagon) which is the national state. The second level is a set of

component states which are located around the central state (circled diamonds).

In this framework, interactions regarding relationships and regarding

power between the national state and the component states are shown by the black

double arrow lines. Interactions among component states are shown by the red

dotted double arrow lines. The double arrows represent mutual interactions, in

comparison to one sided interaction (characterized by the unitary system which

tends to be patriarchal). These interactions become more evident in the

succeeding paragraphs.


Figure 1 – Concept of the Federal System

National

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State

Component

State


Central

Luzon

Bicol Region

Cagayan

Valley

Cordillera Administrative

Region

Ilocos

Region

MIMAROPA

CALABARZON

Eastern

Visayas

Central

Visayas

Northern

Mindanao

Davao

Region

Autonomous Region of Muslim

Mindanao

Zamboanga

Peninsula

Western

Visayas

SOCSARGEN

Philippine

National State

National Capital Region

CARAGA

Figure 2 – The Philippines with Federal National State and

the Regions as Component States


The national state consolidates its’ authority through the consent of the

component states as manifested by a binding constitution (large blue circle) that

respects autonomy (small blue circles around each component states). This single

national state represents in general all the component states. It has powers over

national concerns or purposes with which the entire country is affected.

The component states on the other hand have competent jurisdiction

within a defined area in the country. Being states with independent powers from

the center they have the capacity for self-determination both in managing socio-

political matters and in the pursuance of economic goals. For example they have

the capacity to decide on fiscal and business related policies, and on educational

standards within their jurisdiction. In doing so, they can compete with other

regions. Such interrelationships are shown by the red dotted lines in Figures 1

and 2.

These levels exist by virtue of the constitution (the blue circles: both large

and small). It recognizes and defines what powers and jurisdictions these levels

have. Thus, in contrast to the unitary system wherein the powers of the local

governments are reliant on the decision of the national government to delegate, in

the federal system, the fact exists that both national and local states already have

their respective competencies and areas of authority as granted by the

constitution. It could also be noted that the constitution (circle) binds all the

components together into one distinct whole, thus preserving national unity,

sovereignty, and integrity of the islands in the territory.


The recognition of regional governments as component states exemplifies

the concept of “self-rule” as stylized by Daniel J. Elazar. The power of the

national state represents “shared-rule”. These are federal concepts that can be

applied along systemic characteristics of democracy and liberalism.

In a democracy, the people gather together to form a government. In this

federal structure, regions are independent powers that are gathered together to

pool resources into the national government. By doing so they are united as one

single entity with the advantages secured by a federalized state. Like a

democratic government, the central state of a federation pursues goals that are for

the common good of all the component states (represented by connections

through the black double arrows in Figures 1 and 2), and is sovereign by virtue

of consent from the constitutionally autonomous component states.

In a liberal government, individuals have the capacity to pursue,

happiness, freedom of choice, life, health and other factors that can contribute to

the dignity of a human person. The federal structure applies this principle to

groups of people aggregated through regions. The various regions are granted

equal opportunities for the pursuance of happiness, freedom of choice, life, health

and other important factors for the benefit of their constituent citizens. This is

made possible through the recognition of the regions as component states by the

constitution and through the twofold process of decentralization of power and de-

concentration of economic forces.


2. Specific Framework

Figure 2 applies the above mentioned principle over the Republic of the

Philippines. As seen on the diagram, each of the 17 regions of the Philippines is

represented as component states. And each is named after the corresponding

region. These regions have people sharing similar cultures, languages, and

tradition. Aside from these, there is the national state – the Philippines – which

represent all of these regions as one single entity.

The components states interact mutually with each other (represented by

the red dotted double arrow lines), and with the national state (black double arrow

lines). They have constitutional powers and control of economic forces within

their respective areas (as shown by the small blue circles). They also interact with

the national state (as shown by the black lines). And they are all bound together

and guided by the constitution (the large blue circle encompassing all component

states along with the national state). It is the constitution that defines the

situation, defines power and holds the component states together in unity with the

national state.

G. Scope and Limitation

1. Scope

This thesis studied the federal structures of four working constitutions:

United States of America (18th Century), Canada (19th Century), Commonwealth

of Australia (20th Century), and Federal Republic of Germany (20th Century). It

analyzed constitutional similarities and possible differences. Furthermore, this


study focused only on characteristics of federal constitutions that 1) built up

political systems into liberal democracies, and 2) promoted regional economic

growth. It concerned itself only with factors that a) decentralized governmental

power, b) de-concentrated economic forces, and c) preserved unity along with

sovereignty and territorial integrity.

This study used a qualitative survey of constitutions of different countries.

It searched for good mechanisms that fostered liberal democracy and regional

economic growth. By doing so, it helped provide an unprejudiced basis or a test

for federal principles for potential application into the Philippine political system.

2. Limits

This thesis neither surveyed the attitudes of Filipinos on the changing of

the Philippine constitution nor a studied Filipino outlook on federalism. Also, it

was not an advocacy for or against any of the proposals circulated for charter

change in the Philippines. It rather aimed at an objective study of the theory of

federal states and an inquiry on its applicability to the Republic of the Philippines.

In the conduct of the study, the researcher did not consider any other

federal state or country other than the ones listed above. In examining the

constitutions of the above mentioned constitutions, an authorized English

translation of the German Constitution was used.

H. Hypothesis

In the conduct of this study the researcher took into account the following

hypotheses:


1. Federal states have proper mechanisms for promoting liberal

democracy applicable in the Philippines.

2. Federalization may have proper methods for stimulating equal

opportunities for regional economic development.

3. Federalism may be an option for preserving national unity, sovereign

and territorial integrity.

I. Definition of Terms

1. Concepts of Democracy

Autonomy – The status of being able to make and implement decisions without

having to depend on another’s authority or consent.

Cultural Idiosyncrasies – Unique manner of habits and behavior shared by

members of a particular socio-political or ethno-linguistic group within a

political system. A political system may contain several socio-

political/ethno-linguistic groupings, thus it may exhibit a varied,

sometimes conflicting set of cultural idiosyncrasies.

Cultural Accommodation – Process of satisfying the needs and wants as

demanded by the cultural idiosyncrasies of several groupings of people

within a political system.

Democracy – The government system by the peoples' collective political power

(Gamer, 2009).


- According to Rousseau, a political system or government wherein men

“unit[es] their separate powers in a combination strong enough to

overcome any resistance, uniting them so that their powers are directed

by a single motive and act in concert (Dahl, Shapiro, and Chebub).”

Liberal Democracy – A political system characterized by: reliance of the political

power to govern on fair and free elections; the rule of law; methods of

division of or separation of political powers; and the protection of basic

liberties to life, health, pursuit of happiness, property, choice, and self-

determination5.

Nation – A large group of people having diverse backgrounds; such as origin,

language, religion, and traditions. However, they remain as one singular

entity, united politically, economically, and militarily under one flag, and

speaking with one voice to the international community (Gamer, 2009).”

2. Concepts of Federalism

Federal System – In Elazar’s Political Theory, a political system that is

characterized by having several component states in addition to the

national state. These components are component authorities having

constitutional powers capable of discharging concerns within their

respective jurisdictions. The national state on the other hand has

constitutional powers capable of discharging concerns in the national level

(Watts, 2000).

5 Definition adapted from both (Locke in Goldie, 2009) and (Zakaria, 1997).


Federal State – “Is one in which central and regional governments are sovereign,

each in its respective sphere, and in which the actions of these

governments are coordinated” (Wheare, 1963).

Asymetric Federalism – As described by Tarlton (2006), a federal system of

government wherein sub-national state governments have a certain degree

of divergence, in terms of purposes and goals, away from those of the

national state and the other sub-national state governments.

Symmetric Federalism – A federal system of government wherein sub-national

state governments have a certain degree to have similarities, in terms of

purposes and goals, with that of the central state and the other sub-national

state governments (Tarlton, 2006).

Federalism – the belief in support for and the endorsement for the act of forming a

federation (Burgess, 2006).

Federalization – The process of creating a federal system of government.

3. Concept of Supremacy of the Constitution

Supremacy of the Constitution – In a federal state the constitution is the supreme

law and any law which is inconsistent with the provisions of the

constitution is of no force or effect (Tanguay, 1992).

4. Concepts of Division And Dispersion of Power


Competent Jurisdiction – Powers exercised by a particular government over

specific aspects of life of its constituents (e.g. business, health, education

policies).

Decentralization – A reallocation of constitutional powers of government more

so in particular for local governments or component state governments

than for the central government, considering that there is a set amount of

authority by the government over the people and the economy (Rodden,

2004).

De-concentration – A reallocation of the capacity to regulate and promote the

economy, administrative skills, and access to public service, more so in

particular for local governments or component state governments than for

the central government.6

Territorial Jurisdiction – Powers exercised by a particular government over a

defined territory.

5. Concepts of the Unitary System

Unitary System – A system wherein, “local government can only be an intra-

sovereign subdivision of one sovereign nation. It cannot be an imperium

in imperio” (Bernas, 2003).”

- As defined by Danziger, a political system that concentrates by

constitutional means all constitutional powers needed to discharge with

every state concern into a single central government, this same central 6 Researcher stipulated definition applied to the economy and adapted from the definition of decentralization, as cited above.


government has the discretion to grant and distribute some of its powers to

several local governments which are spread geographically and which are

under jurisdiction of the central government.

Unitary State – A sovereign state governed as one single unit. The constitution

grants governmental powers to one supreme central government. Any

administrative divisions (sub-national units) exercise only powers that the

central government chooses to delegate. A unitary state may be

centralized or decentralized.


CHAPTER II

REVIEW OF RELATED LITERATURE

A. Foreign Literature

1. Federalism and State Building

The study of federalism necessitates a multi-lens approach that looks into

the internal structure of such a political system. The political system has many

component parts. Federalism as a means of molding a political system within the

boundaries of a given country must contain intrinsic characteristics that allow it to

perform the task it was adopted for.

Political analists and researchers have directed efforts to the study of

brining about a modern state. A state capable of facing the problems that threaten

civilized society, promoting the well being of the people, and protecting the rights

of citizens. Contemporary political theories and reaserch findings discuss various

method included among them is how federalism could affect the building or

remodelling of a nation state’s system.

Ghani, Lockhart, and Carnahan in their 2006 paper discovered threats to

the stability of states, and posited solutions to such problems. A much earlier

work by Li (2002) pointed out the source and a possible soulution for state

fragmentation. Wagner (2005) and Rodden (2004) used two different approaches

on exploring how federalism directs or handles the distribution of power from the

center of the nation state’s government to its’ periphery. Lastly, Jaeger (2002)

analyzed the interaction of pure modern applications of government by using a


systematic lens to observe federal system and presidential system functions in a

world where the use of electronic access to government is fast growing.

The state being the political manifestation of society and the government

which is its means of controlling power must be structured in such a way as to

ensure security. Among such research on state-building is collaborative work by

Ashraf Ghani, Clare Lockhart, and Michael Carnahan (2006). These authors

attribute the fall of states and governments to 1) inability to enforce dominion in

terms of duties and maintaining jurisdiction, 2) dispersion of authority agencies

from the core state, 3) secessionist groups and ideals, 4) uncontrollable tensions

and continuous struggles between groups in society and between society and the

state, 5) harsh policies and actions for the purpose of suppressing rebellion and

opposition. As a means of correcting such tendencies for failure, the study adds a

conversion of components within the sociopolitical system. These conversions

include establishment of a system where the following characteristics are present:

1. “Legitimate monopoly on the means of violence;

2. Administrative control;

3. Management of public finances;

4. Investment in human capital;

5. Delineation of citizenship rights and duties;

6. Provision of infrastructure services;

7. Formation of the market;

8. Management of the state’s assets(including the environment,

natural resources, and cultural assets);


9. International relations (including entering into international

contracts and public borrowing);

10. Rule of law” (Ghani, Lockhart and Cranahan, 2006)

It is important to note that current situations in the Philippines match with

the reasons for state failure listed by the preceding authors. Among these were

the first, third and fourth reasons cited above. Hence there is the necessity for

change in the Philippine system. In addition to, the second reason for state

failure, which is dispersion of authorities and government agencies, is a possible

result of mismanaged decentralization or centralization in the Philippine unitary

system. Thus it is important that the change be guided as to avoid the rise of

another problem for the political system.

In this paper, Wagner made an expository analysis explaining and

detailing Vincent Ostrom’s works that lead to the development of a framework for

conceptualizing the development of a good government via federalism.

According to Wagner (2005), Ostrom’s model for the making of a good

government requires the balanced use of two related activities. One of these is the

use of a moral imagination that incorporates past experiences and knowledge that

develops into ideas that can properly shape society. The other activity is to

undertake a scholarly inquiry if a chosen form of government can improve or

hinder certain operations or activities within the system. This is important to this

thesis since it posits a framework for the study of federalism as can be applied in

the Philippine context.


Ostrom’s framework begins by assuming that self-governance is the right

option within the social system. From this, he proceeds to argue that those factors

and process that promote self-governance which are: polycentrism, free markets,

and decentralization lead to a good government structure. These factors and

processes combined make up a democratic government that is federal in nature

(Wagner, 2005). With this framework, Ostrom has developed an evolutionary

process guided by democratic principles that undergo federalist processes thereby

leading to good government. This is an important factor as a guiding principle

against the possible replay of cases of malfunction in some states that were clad

with federal political systems.

Another approach to good governance is by the use of or development of

proper instruments of measurement. Jonathan Rodden has made a masterful

research on methodologies regarding degrees of federalism and decentralization.

It is important to note that Rodden separates federalism from decentralization as

different concepts however seemingly complementary they are. Rodden’s

research also categorizes three modes of decentralization: fiscal, policy and

political.

Methodologies studied, incorporated and proposed by Rodden were

analyzed to specifically target all four concepts of fiscal decentralization, policy

decentralization, and political decentralization, and federalism. Methodologies

included proper sources of data, measurement and considerations of application.


Fiscal decentralization data, according to Rodden, first starts with finance

statistics such as those from the International Monetary Fund data. Yet Rodden

argues that such data is not enough as to observe deep analysis of government

spending decentralization. To this he proposed a modification of data sets by

locating “the regulatory framework for sub-national finance” (Rodden, 2004).

Next, policy decentralization can be measured by a score system that

assigns such single or two point scores on whether or not a country’s authority

regarding several aspects of policymaking and administration is placed in the

hands of the local authority or the central authority respectively. Political

decentralization on the other, Rodden proposes, can be measured by an index

score system that assigns zero to two point scores on whether sub-national

executives were elected by the people or appointed from the center.

Lastly, Rodden measures federalism not by simply the location of power

or the actual distribution of power, rather, he argues on the context of covenants.

According to Rodden, federalism has its etymologic roots in the Latin word

foedus, which translates to covenant. This applies significantly on the

understanding of federalism. It deepens the meaning as to actual autonomy of the

composite states of a federal system. Hence, according to Rodden, it is the

arrangements of this covenant, contract, bargain, or agreement between the sub-

national states, and between the sub-national states and the central state that must

be measure and studied.


Such proposals by Rodden support the thesis that the constitution of a

federal political system is a good start in discovering the dynamic processes that

make such a system work. Additionally, Rodden points out the following benefit

from the application of a properly structured federal system: government

accountability and safeguards against corruption since the local governments can

be engaged much easier by the people and within a more manageable setting. In

contrast though, Rodden also asserts the following pitfalls that the federal system

when abused can lead to. First is that federalism can block the shares of growth

and benefits from the national level due to excess misrepresentation between the

various sectors of the territory. Another is an extension of the first, that the

division of power between national and local authorities can cause a hindrance to

national economic planning. These application theories are grim reminders of

what this thesis must consider in analyzing the changing of the Philippine

constitution into a federal system of government. The political system is to be

applied or changed in order to improve the existing order and/or correct

irregularities and problems. Mishandled policy changes to the very heart of the

political system – the constitution could cause drastic feedbacks that can be

insignificant changes or more governmental problems or worse – a failure of the

state.

Several studies cited above promote a movement from centralism towards

a dispersion of authority into the hands of component states. This way leads to

the duality of consolidation and fragmentation of power (Hooghe and Marks,


2003). According to Elazar, federalism is a way of promoting consolidation of

power even if the population is diversified (Watts, 2000). Yet federalism in

process distributes power into vertical levels and in spread of area. Thus

federalism has two seemingly incompatible components that must be used in

harmony for a healthy formation of a political system. Lisbet Hooghe and Gary

Marks have made a study on ways to disperse the power of the state while

preserving the functionality and integrity of the system. According to their

findings, the rearrangement of the political system in a power dispersive manner

can cause impediments towards and within the state. To this, both authors have

studied advantageous ways to do such a process without causing damage to the

state.

Hooghe and Marks made two means of solving this dilemma. These were

Type I and Type II governance. Both of which are characterized by how they

have been organized to address specific issues raised by both authors. Their types

of governance are guided by the following considerations:

1. “Should jurisdictions be designed around particular communities, or should they be designed around particular policy problems? 2. Should jurisdictions bundle competencies, or should they be functionally specific? 3. Should jurisdictions be limited in number, or should they proliferate? 4. Should jurisdictions be designed to last, or should they be fluid?” (Hooghe and Marks, 2003).

These two researcher’s Type I governance strictly follow the first options

in each question, while Type II contains characteristics that have the second


option to each of the questions above. However that both authors used such

typology with a focus on federal governments, both types apply to federal and

unitary structures. Since dispersion of powers apply to both in terms of

decentralization. What is significant with this study by Hooghe and Marks adds

to the literature of finding ways of building a good government for the unique

situations that pervade in the socio-political system of a given country. In

conjunction with the study of politics as a science of power and government, state

formation and government restructuring must have proper educated guidelines.

This is to ensure a lasting and functioning government that can provide for the

benefit of the people.

Another important concern of the political scientist is to guard the state

from the phenomenon of state fragmentation. State fragmentation is a danger to

both territorial and sovereign integrity within a given country. Jieli Li traces

historical events in specific cases to find causes and safeguards against such a

threat.

According to Skocpol’s concept of state autonomy, both the state and

social groups within the territory can have opposing concerns (Li, 2002). To this,

Li juxtaposed Tilly’s 1993 argument that “revolutionary” situations lead to

particular cases of state fragmentation in order to analyze situations in Russia,

Yugoslavia, Iran and China.

Li’s research applies also to the Philippine situation since conflict in the

Muslim areas of the Philippines may also lead to secession. Li argues though that


groups calling for cession are simply the part of the process of state fragmentation

and not the antecedent. What then is or are the antecedents? Li enumerates most

importantly the interaction caused by changes in power relations between states,

and the eventual territorial strategic position of the central state. Next is the

connection of the territorial strategic position of the central state, and its ability to

manage resources. Finally, there is the connection of the quantity and kind of

resources, and the degree of the capacity of the central state to enforce its will

within the territory.

As federalism has been an innovation in the art of government, Electronic

Access to Government hereafter referred to as E-government is another design for

the purpose of easy access of the people to the government and its services.

Jaeger’s study, published in 2002, examined dynamics between E-government

practices and the main guiding principles of the American constitution.

According to the study by Jaeger, E-government pertained to “24-hr access to

government services, information, goods, benefits, and activities, bridging the

elements of the government together through one portal.” This system, however

useful as it may be, pose possible conflicts to two fundamental principles of the

United States constitution. These two principles are 1) the principle of separation

of powers and 2) the principle of federalism. Jaeger iterates both principles as

principles that separate powers, in contrast, E-government is a uniting factor,

bringing together what has been separated into union for easy access to the

people.


E-government is a policy from the center. It creates legal relationships

between the federal government and the component states. One example

provided by Jaeger was with the Office of Management and Budget. In the

scenario, E-government provided better means for states and localities to make

their report requirements, it also provided such states and localities better means

to participate in providing services to the citizens alongside the federal

government. Such situation, Jaeger notes, places the component states under

liability to the federal government created by E-government system. The same

study noted other problems with data integration which could threaten the

individuality of laws within the each states’ or localities’ jurisdiction.

From Jaeger’s study it is important to note two aspects important to this

thesis. First, that Federal policy affects government bureaucracy especially on

how they could become more efficient or more prone to legal squabbles of

“liabilities, and that the same bureaucracy have significant dynamics that have

implications to the basic law of the state. One way of achieving good government

is by having a more efficient delivery of goods and services or a means for

citizens to access such goods and services. As Jaeger has illustrated federal

systems can have positive and at the same time constraining effects to

policymaking, even for the purpose of efficient public service. Second is that

states and localities in a federal system are not characterized simply by having

been categorized by the federal government. These states and localities have

individual traits shared among its constituents that are governed by laws designed


to meet the customs and traditions or, if not simply the values shared within a

specific state’s jurisdiction.

2. Federation and the Management of Heterogeneous Systems.

Tools always have the capacity to work in two opposite ways. A scalpel

can be used by a surgeon to save a life, or it can be used to stab a person and

cause harm. Federalism is also a tool as much as it is used to organize the system

of government in a given system. But as all tools must be used for the common

good, so must federalism. As stated by Elazar, federalism can help accommodate

dissident groups or areas that pose a threat to the integrity of sovereignty and

territory. On the other hand, in a case study by J. Isawa Elaigwu over state

building in one of the African Nations, he depicted a grim abuse of the flexibility

of federalism. This study published in 2003 in Publius narrates how the federal

system of government in Nigeria was able to accommodate the unique political

concept of Islam.

Nigeria adopted such a system to as a means of aggressive sub-

nationalism between Christian and Muslim groups. The author Elaigwu has

described the society of Nigeria as having a high level of religious tolerance and

as the government history of Nigeria unfolded from the 1800s’ to the 1900’s,

Muslim religious contexts on law and justice were eventually incorporated into

the constitution. These include the pervading force of Sharia and the

implementation of Zakkat over Islamic personal matters (Elaigwu, 2003). In

contrast to the Philippine unitary system wherein the whole of the Philippines is


placed under a secular government with Sharia courts operating only in the

Muslim areas, it is observable in the study by Elaigwu that the reverse is true in

the Nigerian experience. Nigeria not only had local lower courts, but the

constitution also provided for upper courts, Sharia court of appeal, and even a

Supreme Sharia in Zamfara (Elaigwu, 2003). Eventually problems occur.

Systemically the change created feedback in the society in addition to the results

of actually having the implementation of a Sharia law in such an extensive

manner.

Immediate opposition arises from Christian groups. Quoting Elaigwu,

“Christians were not expected to be taken to Sharia courts” yet there were indirect

effects to the same such as “closure of hotels, bans on the sale of alcohol and

discrimination in contract awards and in permit licenses.” Aside from opposition,

there were other issues on the implementation of Sharia. These issues include

severity of punishments in the Sharia penal code, and gender issue in the

administration of justice. Punishments in the Nigerian Sharia penal code included

the “decapitation, amputation and stoning to death.” The legal system also has a

tendency for harsh punishment for women under trial with adultery and yet men

escape punishment for lack of evidence and technicalities (Elaigwu, 2003).

The case study of Elaigwu reminds a very important fact for the Philippine

project of constitutional revision. There is a proper extent for accommodation of

ethnic, cultural, and religious groups. Proper safeguards must be established to

maintain balance in the adoption of policies. These policies not only affect single


individuals but a great number of people. The flexibility of the federal system

must be able to accommodate and yet at the same time must retain the capacity of

a political system which is responsible for guiding and molding the nation into a

stable state that promotes true justice and human rights.

Ronald L. Watts contributed to the Publius compilation of essays in

memory of Daniel Elazar with a tributary exposition of the great political

scientist’s works. Elazar was a great political comparativist who has specialized

on the study of federal political systems around the globe. He was the founder of

the Center for the Study of Federalism, a valuable member of both the

International Association of Centers for Federalism, and of the Forum of

Federations. In this research essay, aside from making a historiography of

Elazar’s accomplishments in establishing research institutions on comparative

federalism, Watts also made a discourse on Elazar’s Comparative Federalism. By

doing so, Watts was able to create a panorama on Elazar’s theories on federalism.

Elazar is attributed with the argument of federations as covenants of

various autonomies ruling their own jurisdictions alongside with a collective

power of administration. From this he is also credited for observations in the

variations in which decentralizations can occur in federal systems (Watts, 2000).

Hence federal systems do not immediately entail decentralization. It simply

creates a situation for further decentralization by recognizing the individuality of

states. According to Watts, comparisons by Elazar pointed out variations in the

manner of decentralization of power between federal countries. Hence


decentralization or the extent of it does not actually define federalism. Rather it is

the presence of sub-states and central states. These sub-states and central states

compose the true self-rule and collective rule respectively in the ideas of Elazar.

Another concept that Elazar put forward is the application of federal

flexibility upon issues of civil conflict or internal threat leading to possible

breakdown of state or cession. According to Elazar, the use of federalism can

lead to conflict resolution and the possibility of eventual concord. This is a useful

theory in application to the Philippine situation and the objective of creating a

stable peace in Muslim Mindanao. The study by Elazar proposed not simply

federation but also confederation as a solution to ethnic conflict. Based on several

cases though, both in the observations of Elazar and Watts, either federations or

confederations have both difficulties and successes in the containment of peace.

Thus in application, the theory of Elazar on the capacity of federal and

confederated states to resolve civil ethnic aggression within the polity of system is

relative to particular situations and contexts. Such is a significant lesson for this

thesis and for the Philippine government. The federal theory does not easily

apply universally; hence the distinctive characteristics of particular successes

must be discovered as an aid in applying a federal system of government to a

specific country, or else change might not actually lead towards the desired result.

3. Federalism and Political Economy

The basic economic theory on federalism lies on the assumption that

federal political systems lead to a better economy. This concept has been


practiced and has brought about the blessings of national wealth to some countries

able to harness its full potential. Political Economy researchers Rodden and

Wibbels (2002) and more recently Brueckner (2006) used both quantitative and

qualitative analysis to test federalism effect on federalism. Both of which

removed the federalism-decentralization dichotomy. What Rodden and Wibbels

called the “fiction of federalism” is that simply decentralizing is not federalism.

Rather there are other compoenets of unique to federalism that brings about the

economic blessings particular to its model countries (Rodden and Wibbels, 2002).

In “Fiscal Federalism and Economic Growth,” Brueckner uses logical

mathematical models in explaining and achieving a sophisticated delving into the

nature of federal influence over the economy in a given political system.

Brueckner took into account various models and empirical findings from several

works, including among others, those of Alesina and Spoalore (1997), Oates

(1972), Tiebout (1956). From these findings he tested several formulas that

compared and explained the relationship of several factors that lead to better

opportunities of economic growth under two circumstances: federal system and

unitary system.

Brueckner’s method tested the idea that national-local level shifting of

government expenditure regarding the provision of public goods has an effect on

economic growth. It is further assessed that such effect is more positive on the

economy in a federal system. Such an effect is attributed to the fact that the

transfer of government expenditures in a federal system provides a situation


wherein public goods provided are adapted to the varying wants of constituents.

This extends the economic theory of federalism into the theory of federalism as a

flexible system of government that can adapt to heterogeneous cultures,

ethnicities and religious backgrounds. The same differences such backgrounds

dictate upon individual consumers and/or consumer groups, their preferences in

turn have an effect on the economy of the nation as a whole.

Cultural, ethnic and religious backgrounds aside, Brueckner also adds the

following factors as that lead to the federal system’s successful economic

operation: First are savings made possible by government provision of public

goods. Second is the jurisdiction over taxation which is the resource of the

government in the provision of public goods. Last is the jurisdiction over the

provision of public good provided by the government to its constituents

(Brueckner, 2006).

Jurisdictions in the last two factors are clearly delineated in the vertical or

areal distribution of government authority. Brueckner introduced in his study that

the preferential backgrounds of constituents and the jurisdictions of governments

over the economy in a political system are both temporal and areal. Temporal

jurisdiction involves human development from youth to adulthood which shapes

preferences. Areal jurisdiction is dependent on location which unifies by

proximity of residence, business location, or the backgrounds of member

individuals and groups.


The study by Brueckner, however vastly technical in terms of

mathematics, yields great insight for the student of federalism by having

discovered hidden factors within the mechanism of federal political systems. It

lends guidance to this thesis by the goal that devices that make a federal system

successful in local ethnic peacekeeping, and promotion of proportional regional

economic development must be discovered. Aside from these, based on findings

from other literature in the field of comparative federalism such as Elaigwu,

Jaeger, Li and Watts discussed above, as they describe possible negative feedback

with a mismanaged federal system application the goal of searching for

safeguards incorporated into the structure of a federation must also be discovered.

Federalism as a political-economic theory traces its roots to the times of

Madison, Jay and Hamilton in writing the Federalist Papers. Although

applications of the theory eventually end up with modifications.

Having a federal system of government does not necessarily lead to

growth. Jonathan Rodden and Erik Wibbels in a quantitative comparative study

published in World Politics in 2002 both expressed the “fiction of federalism”

based on the data that there are great differences on economic performance of

federal countries. Their study classified six hypotheses into three macroeconomic

aspects in federalism. These aspects of management in federalism were: 1) Fiscal

Federalism, 2) Political Federalism, and 3) Jurisdiction Structure. The topics the

hypotheses focused on were on the increase of, decrease of, and control over


deficits, inflation and expenditures. The hypotheses tested in the study were

worded as follows:

H1) “A federation’s capacity to control deficits and inflation declines as levels of expenditure decentralization increase.”

H2) A federation’s capacity to control deficits and inflation declines as levels of vertical fiscal imbalance increase.”

H3) The effects of expenditure decentralization (H1) and vertical fiscal imbalance (H2) are conditioned on one another.

H4) A federation’s capacity to control deficits and inflation increases when political parties create incentives for cooperation between the center and provinces.

H5) A federation’s capacity to control deficits and inflation decreases with the share of total provincial expenditure carried out by the largest province.

H6) A federation’s capacity to control deficits and inflation decreases as the number of provinces increases” (Rodden and Wibbels, 2002)

After statistical tests on the variables, Rodden and Wibbels found

varying results among each of the hypotheses. It is significant to observe that

these two authors concluded: “other things being equal, increased decentralization

of expenditures in federations is associated with lower deficits and inflation.”

In addition to this, both authors found that the relationships between

governments have influence over economies of federal systems. This study by

Rodden and Wibbels adds to the argument for systematic checks for the planning

of a federal system. Simply adopting federal systems or simply decentralizing

power is not enough. The study points out that the relationships of components in

political systems have effects on the economy. Thus the mechanism that provides

or controls such relationships must also be checked for better state planning.


B. Local Literature

1. Federalism and the Philippine Situation

The Philippine socio-political system has had problems similar to those

discussed by Ghani, Lockhart and Cranahan at the beginning of this chapter.

These problems that threaten to destabilize the state include the state’s loss of

legitimate monopoly on the means of violence (as evidenced by use of violence

by insurgent groups), inadequate administrative control in the peripheral regions,

the need for efficient management of public finances, and the need for

development and investment in human capital. Philippine scholars such as

Arizala (2005), Abueva (2001), and Quimpo (2001) conducted researches either

specifically on the problem and its roots or delved into the merits of the currently

proposed solution.

Both Arizala and Abueva directed their knowledge on constitutional

principles to analyze the use of federalism to bring about advantageous results in

the Philippine socio-political system. Quimpo on the other hand researched on

the Mindanao insurgency problems and sought answers. Among the Quimpo’s

findings is that federalization is an applicable solution in diffusing the armed

conflict in the Philippine south through a political system that accomodates their

socio-political culture.

Attorney and former Philippine ambassador Rodolfo A. Arizala wrote an

article for “The Lawyer’s Review”. In this article, Atty. Arizala traced historical

influences into the formation of the Philippine Bicameral, Presidential, Unitary


system of government. Although, he focused more on the bicameral - unicameral

and presidential - parliamentary change, he still made an adequate discussion on

federalism. He made a citation on antecedents for federalism, a list of countries

with federal governments and classifying them between “Federal Republics” and

“Democratic Federal State Systems.” Despite failing to discuss the substantive

difference, if any for such a distinction between federal systems of government.

In addition to this, Arizala also commented on cultural similarities between the

Americans and the Swiss, both of which have federal forms of government.

Atty. Arizala’s scholarly essay though was ambiguous with his support for

the Philippine adoption of a federal system of government. However, he provided

caution as to the possibility of change since the Swiss and the Americans had to

undergo a lengthy and hard experience before being able to make such a

government work. But in general, Atty. Arizala opposed the policy of changing

the constitution for the purpose of dealing with current problems because of

historic examples in the evolution of the Philippine constitution.

In comparison, Professor Jose V. Abueva, President of the Philippine

Political Science Association, fervently supported the concept of Philippine

federalism. In an article published in the Journal of the Integrated Bar of the

Philippines, he itemized several rationales for such a plan. These rationales

though were listed as a set of several hypotheses on what advantages the federal

system could give the Philippines. These included promotion of democracy, local

responsiveness, people empowerment, territorial consolidation, and strengthening


of the nation-state. From these hypotheses, Abueva proceeds to discuss

theoretical applications of the parliamentary system, and then promotes a “draft

constitution for a Federal Republic of the Philippines”.

Still, such advantages posited by Abueva remain as hypothesis until 1) the

plan actually is implemented and the Philippines practices federalism for several

years enough to gain results, and 2) studies can be made for the Philippine’s

suitability for a federal system of government. This thesis takes on the

responsibility of the second step. By studying constitutions of successful

countries, the Philippines can learn and adopt the fruits of such experienced

countries and have a new constitution made to adapt to its problems.

Focusing on the Moro insurgency problem that has for years persisted in

the Mindanao area of the Philippines, Nathan Gilbert Quimpo (2001) has explored

solutions posited in an article published in Asian Survey. Quimpo narrated

experiences by recent Presidents such as Presidents Estrada and Ramos that lead

to temporary arrangements but not lasting solutions to the hostilities in Mindanao.

Quimpo also used a historic trace as to the cause of such hostilities. Here he

attributed the hostilities in Mindanao to the differences between Christian and

Muslim culture, religion and perspective on government. This situation he further

avers escalates to the level of the nation-state.

According to Quimpo, the Muslims resent being placed under the

authority of state whose power mainly comes from the majority of its populace, a

populace which is composed by a majority of Christians. This situation


overwhelms the political system and suppresses the Muslim people within the

system. Hence the armed conflict arose that continued since the Spanish arrived

to spread the Christian word to the Philippine islands.

Such hostilities can be solved according to Quimpo through the following

options for Moro self-governance: a) secession, b) accommodating the idea of an

Islamic state or System, c) regional autonomy, and d) federalism. Secession is not

really a viable option since it threatens the integrity of the Philippine territory and

sovereignty. Regional autonomy on the other hand has already been used in the

1987 Constitution and as events prove, has not been able to solve the problem.

Simply granting a degree or high degree of freedom is not the proper solution. As

Quimpo has posited, being placed under a Muslim majority government is the

root of the hostilities. Hence the solution must be one that accommodates such as

solution.


CHAPTER III

RESEARCH METHODOLOGY

A P P L I C A T I O N

T

H

E

O

R

Y

S I

M I L A R I T I E

S

United States of America

Canada

Commonwealth

of Australia

Federal Republic of Germany

Figure 3. Research Design


Method

This study underwent two stages of qualitative content analysis of four

federal constitutions. Namely those constitutions are of (1) the United States of

America, (2) Canada, (3) Australia, and (4) Germany. On the first stage, these

constitutions were evaluated comparatively to seek the commonality of provisions

on (a) decentralization of political power and (b) de-concentration of economic

forces and administrative skills. Through this method, the researcher was able to

consolidate both firsthand and substantive data on developing a theory of

federalism.

The second stage evaluated how the two elements of theory in the first

stage became antecedents respectively leading to processes and applications of (a)

liberalization of democracy, (b) creation of opportunities for regional economic

development, and (c) national unity, sovereign and territorial integrity. Through

this method, the researcher was able to analyze how to apply federalism to the

Philippine Republic.

Sampling

This thesis studied only the constitutions of four states of federal

countries. These states are the United States of America, Canada, Australia, and

Germany. These samples have been chosen for their successes in the federal

system experience. Also these states combined represent the continents of North

America, Europe and Australia, which creates a diversified manner of data

collection.


Design

The research design utilized for comparative qualitative method was the

“Most Similar” research design (Burnham, 2004). It has been patterned after John

Stuart Mill’s Inductive Method of Reasoning (Method of Agreement). This is

supplemented by the constitional-structutralist research method of Zachary

Elkins,7 Tom Ginsburg,8 and James Melton9 of the Comparative Constitutions

Project (University of Illinois).

The model constitutions were studied and data on similar provisions were

observed. The significance of provisions was based on the two antecedents of (1)

decentralized constitutional powers of government, and (2) de-concentrated

economic forces and administrative skills. These consolidated provisions were

juxtaposed with descriptive information on processes and practices from each

country.

In application, since political, territorial, socio-cultural, and economic

benefits were correlated from the two antecedents, they also became a set of

theory for the grounded application of federal principles as antecedents to

desired results of: (a) liberalization of democracy, (b) creation of opportunities of

regional economic development, and (c) preservation of national unity alongside

sovereign and territorial integrity (See Figure 3).

Data Gathering

7 Department of Political Science University of Illinois 8 College of Law and Department of Political Science University of Illinois 9 Department of Political Science University of Illinois


Raw data was observed from the above mentioned constitutions regarding

the following content: 1) Apparent provisions that delegated powers of the

national state government. 2) Apparent provisions that delegated powers of the

component states. 3) Undesignated powers between the national state and the

component states (Gray Areas). The same contexts were used to guide the

researcher in seeking out actual examples of processes and practices in each

country through secondary sources from written and seminar presented works on

the model federal countries.

Data Categorization

Gathered data was categorized in the following scheme:

1. Theory

a. Liberalization of democracy in the model constitutions through

decentralization of constitutional powers of government and

administration.

b. Creation of opportunities for regional economic development

in the model constitutions through de-concentration of

economic forces and administrative skills.

2. Application

a. Liberalization of Democracy in the Philippines through federal

decentralization of constitutional powers of government and

administration.


b. Creation of opportunities for Regional Economic Development

in the Philippines through federal de-concentration of

economic forces and administrative skills.

c. Preservation of national unity, sovereign and territorial

integrity in the Philippines.

Analysis

The data from the four constitutions were evaluated by taking into account

processes of two important factors. First is on how provisions on decentralization

of constitutional powers of government lead to liberalization of democracy.

Second is on how the de-concentration of economic forces leads to the creation of

opportunities for regional economic development. Through this analysis, a theory

was formed that can be applied to the Republic of the Philippines regarding the

status of democracy and regional economic development. In addition to this, the

researcher analyzed the possibility of a by-product between the two processes.

This is the preservation of national unity, sovereign and territorial integrity in the

Philippines.


CHAPTER IV

DATA PRESENTATION AND ANALYSIS

A. The Seven Essential Features of a Federal Political System:

Through an analysis of the written constitutions of the four countries, the

similarities yielded results which this research stipulates as the seven essential

features of a good, working federal political system. Together, these seven

essential features constitute a Federal Convention (Tanguay, 1979), a set of

guiding principles inherent in the constitutions (convention, covenant) of model

federal countries. These characteristics are as follows:

1st Essential Feature: Two levels of government existing in their own

right under, one constitution.

The written constitutions of U.S. (1776), Canada (1867), Australia (1901),

and Germany (1949), are each a sovereign state. Each of these federal countries

are composed of regional governments called states (United States and Australia),

provinces (Canada), or länder (Germany). These states are unified into one single

federal state by a single Constitution.

Each of these levels of government (federal/national and regional) have

competent powers to rule within their respective territories. Such powers will be

further discussed in the 2nd Essential Feature (for the Federal/Central

Government) and the 3rd Essential Feature (for the Component State


Government). What is most significant in this foremost feature is the recognition

of existence and its resulting benefit within the system.

The constitutions of these countries name regional divisions as individual

states, individual provinces, or individual länder that compose the unity of the

Federation and delineate means on how each state can participate in national and

local levels of government. Through this process, it is the constitution which

grants legal recognition to the named locations as existing component states,

provinces or länder. This in effect grants the right of their respective

governments to rule within their area of jurisdiction.

The Constitution of the United States of America lists the member states

which were present at its ratification. It also provides a means for new states to

be admitted into the Union (Article IV. Section 3). These states are given

governmental voices in the Federal Legislature whose Lower House (House of

Representatives) is composed of Representatives from each state, and is

numbered in proportion to each state’s population (Article I. Section 2). The

Upper House of the legislature (Senate) is composed of Senators, two (2) for each

state (Article I. Section 3). The Chief Executive (President) is chosen through a

set of Electors representing each of the states, the number of Electors for a

particular state is equal to the number of Senators and Representatives entitled to

it in Congress (Article II. Section 1).

Comparatively, Section 22 of the Canadian Constitution lists the Provinces

which compose its Federation. Sections 146 – 147 are provisions that compose


part IX of the constitution, and it delineates means for the admission of new

provinces. Section 22 classified provinces into Four Divisions, and provided that

each division be entitled to 24 Senators each. Sections 37 – 40 assigned the

number of House of Commons Members for each of the provinces.

In the Australian Constitution, Section 26 lists the original states of the

Commonwealth. This same section apportions the number of Representatives for

the Lower House. Section 7, on the other hand, ensures that the number of

Senators should always be equal even if the numbers are eventually increased by

Parliament.

The preamble of the German Constitution lists the länder that are united

within the Federation. The German Upper House (Bundesrat) is composed by

members, which are appointed by Land (länder) governments. Each Land is

entitled to at least three (3) votes. The number of votes a land is entitled to

increases by two/two million inhabitants, by four per six million inhabitants, and

by six per seven (or more than seven) million inhabitants. Each Land government

can appoint Bundesrat members equal to the number of votes it is entitled to

(Article 51).

As evidenced above, recognition creates an environment wherein the

multifarious territories; each having their own cultural personalities can be happy

or content. This is so since they are given identification as existing Constitutional

political entities. They have their own government, which is represented, and can


exercise powers to legislate, administer the laws, and dispense justice within their

bounds.

2nd Essential Feature: A Central Government directly elected by the

electorate of the whole country, making laws and taxation applicable

to all citizens.

The national government level in a Federal Political System is known as

the Federal Government. Its very existence is a unifying factor within the

federation. What makes this system effective is the manner of choosing the

Federal Chief Executive and the members of the Federal Legislatures. In addition

to this, the Constitution grants supervisory powers to these Federal organs of the

government over the entire territory of the federation. These powers further act as

means to consolidate the component states into a cohesive whole. Such

institutionalization of powers by the Constitution furthers unity within a diverse

political system.

a. Manner of Choosing the Chief Executive.

The Chief Executive holds the reigns of administrative power. As such,

he or she must have the confidence of the varying component states of the

Federation. It is through a process of universal suffrage, based on the proportion

of the states’ populations, that stability, support, and thus obedience from the

local governments is secured.


The President of the United States of America is chosen by a group of

Electors, who are citizens appointed by each state through the direction of their

respective legislatures. The number of Electors that represent a state equals the

whole number of Senators and Representatives to which that state is entitled to in

Congress (Article II, Section 1).

The Federal President (Head of State) of Germany is elected by a group of

legislators also termed as the Federal Convention (Article 54, Paragraph 1). This

convention consists of members of the Bundestag and an equal number of

members elected by the parliaments of the länder on the basis of proportional

representation (Article 54, Paragraph 3). On the other hand, the Federal

Chancellor (Head of Government) of Germany is elected by the Bundestag

(Article 63).

b. Powers of the Chief Executive

The making of laws requires several minds, pooling their knowledge,

wisdom, and experience together. The execution of laws requires a single pair of

hands wielded by one authority. This individual is the Chief Executive or the

Head of Government. Having a singular person in charge of national supervision

and administration ensures unity and focused implementation of policy. The

manner of his/her election as described above establishes support from each of the

regional levels. And the powers ascribed to him/her by the constitution allows

him to ensure justice and fairness in the throughout the federation.


The Chief Executive in each of the compared countries exercise the

following powers: approval of national laws (United States, Article I, Section 7),

(Germany, Article 82, Paragraph 1); command of martial forces (United States,

Article II, Section 2), (Canada, Section 13), (Australia, Section 68), and

(Germany, Article 65a); representing the federation internationally, entering into

agreements (treaties) for the federation (Canada, Section 132), and (Germany,

Article 59); appointment of Judges of the Supreme Court (as consented to by the

Legislative Body) [Canada, Section 99, Subsection (1)], [Australia, Section 72,

Subsection (ii)], and (Germany, Article 60, Paragraph, 1).

c. Election and Apportioning of Members of the Federal Legislature.

In terms of the Federal Government, the manner of apportioning the seats

within the legislative bodies is of utmost of importance. Just as election conveys

support for the chosen legislator, a system of fair and proportional allocation of

representatives for each of the states ensures that the laws created by the Federal

Legislature are accepted and obeyed in every component state. This is so because

the states are properly represented. The states assume or are aware that when any

Federal law is made, each of their unique concerns and idiosyncrasies have been

voiced by their representatives and have been given consideration.


1) The Upper House

The upper house of the legislatures of U.S., Canada and Australia are all

styled as the “Senate.” (United States, Article I, Section 1), (Canada, Section 17),

and (Australia, Section 1). The German upper house is called the “Bundesrat”

(Article 51).

In the U.S. (Article I, Section 3, Paragraph 1), the Senate is composed of

two (2) senators from each state chosen by that state’s Legislature.

The Canadian Senate is composed of Senators. In the Constitution, the

Senate consists of four Divisions, with each division having twenty-four (24)

Senators. The Divisions and their respective provinces are: 1) Ontario; 2)

Quebec; 3) The Maritime Provinces (Nova Scotia, New Brunswick, and Prince

Edward Island); 4) The Western Provinces (Manitoba, British Columbia,

Saskatchewan, and Alberta). The same constitutional provision (Section 22)

proportionally allocates how each province gets a share in the 24 seats allocated

to their respective divisions.

The Senate of Australia was initially composed of six (6) from each of the

original states. This system can be changed by Parliament, increasing or

decreasing the number, to ensure an equal number of representation. However, it

is prohibited that no original state shall have less than six Senators (Section 7).


2) The Lower House

The U.S. (Article I, Section 1) and Australian (Australia, Section 1)

legislative lower houses are both called “House of Representatives” in Canada

(Section 17) it is called the “House of Commons,” and in Germany it is the

“Bundestag (Article 51).”

The House of Representatives in the U.S. is composed of representatives

who are apportioned according to the population of their respective states (Article

I, Section 2). The same is true with Representatives in the Canadian House of

Commons (Canada, Sections 37, 40, 41, 50, 51, 51A, and 52.), the Australian

House of Representatives (Section 24), and the German Bundestag (Article 51).

d. Federal Control over Militia.

Certain areas of life under the federation are placed within the powers of

the federal legislature instead of those of the component states. This general

policy takes into consideration the concerns of the regions, states, provinces, and

länder who compose the Federation. Through such measures, uniformity, order,

fairness and unity is achieved and ensured.

The Rule of Law again is made ever present through its guidance over

general state affairs partnered with equalization of opportunities through certain

measures of federal intervention. Without this, there will be a potential for chaos

in the political, social and economic systems. This is so because the lack or

absence of federal intervention leads to imbalance in the scheme of allotted


chances of resources or misuse by the local governments. Certain situations

where in some areas develop while others do not, or that some areas increase in

political power while others do not arise will continue without some form of

monitoring or control from the federal government. The following discussions

discuss the most prominent and common powers granted to the federal

government by the constitutions of the four countries.

The basis to establish and maintain an armed force comes from federal

legislation. The use of force is important to remain within the hands of the

federation, not within the component states. This holds true to all four model

countries (United States, Article I, Section 8, Paragraphs 1, 12, and 13), (Canada,

Section 91, Subsection 7), [Australia, Section 51, Subsection (vi)] and (Germany,

Article 73, Paragraph 1). If the component states gain the power to have militia,

then the balance and unity of the federation can be threatened.

The particular constitutions of the United States and the Commonwealth

of Australia even go as far as prohibiting the states to have troops or create and

support any military or naval force without the consent of their respective federal

legislatures (United States, Article I, Section 10, Paragraph 3), (Australia, Section

114).

e. Federal Taxation Power.

In each of the four written constitutions studied, all four have provisions

regarding a certain degree of taxation power reserved for the Federal Government.

This is to ensure a source of revenue fund for the general use or ‘lifeblood’ of the


Federal Government. It also functions as a resource pool for the general welfare

or aid resource for the member states when needed. Among the four models, two

countries can be paired as having similarities with each other. The others are

unique. To illustrate; both Canada and Australia use a system of Consolidated

Revenue Funds to equalize their system. On the other hand, United States and

Australia both have general provisions that prohibit certain policy actions from

the legislatures of states in order to ensure equality and order. Finally, the

constitution of Germany has guidelines for “concurrent legislative powers”

(Article 74) and “joint taxes” between the federal government and the länder

(Article 106, Paragraph 3).

It is apparent that federal political systems contain provisions that allow

for federal intervention that can equalize the socio-economic arena, and grant true

opportunities for states not suitably equipped to pursue development goals. This

is what makes the four constitutions similar in principles and goals however

unique the processes or means.

The United States, Canada, Australia, and Germany are similar in the

sense that their Constitutions place general legislative powers of taxation to the

Federal Legislature (United States, Article I, Section 8, Paragraph 1), (Canada.,

Section 91, Subsection 3), [Australia, Section 51, Subsection (ii)] and (Germany,

Part X). The same reference in the U.S. Constitution expressly states that such

measure is for the purpose of uniformity, and in Australia [Section 51, Subsection


(ii)] such measure is to regulate against discrimination between states or parts of

states.

In contrast, the German Constitution (Article 105, Paragraph 1) grants to

the Federation exclusive legislative power of taxation only over customs duties

and fiscal monopolies. Paragraph 2a of Article 28 grants the länder power to

legislate regarding taxes on consumption and expenditures “as long and insofar as

they are not substantially similar to taxes imposed by federal law” (Article 28,

Paragraph 2a).

A fair system of taxation is ensured by having it placed within the set of

powers of the federal legislatures. All four countries have varying practices on

granting the taxation power. In the U.S. (Article I, Section 8, Paragraph 1), the

power to lay and collect taxes, duties, imposts and excises is a sole power of

Congress to ensure uniformity. In Canada (Section 91, Subsection 3), “raising of

money by any mode or system of taxation” is an exclusive legislative power of

Parliament. However, Section 92, Subsection 2 also provides the Provincial

legislatures powers for direct taxation in order to raise their own funds for

pursuing their needs and goals.

In Australia [Section 51, Subsection (ii)], the power to tax is reserved for

the Parliament of the Commonwealth to regulate against “discrimination between

states or between parts of states.” However, in Germany (Article 105, Paragraph

1), only customs duties and fiscal monopolies are placed within exclusive powers

of the federation. The system of concurrent powers in the German Constitution


guide which kinds of taxes should be legislated over by the federation or by the

länder (for the purpose of equal living conditions, maintenance of legal or

economic unity) (Articles 72, 105, and 106).

These provisions in the four models serve a three-fold purpose. The

Federal power over taxation is a means for maintaining order and unity in revenue

sources. It allocates sources of funds for use by the Federal Government. And

finally, they are also means for helping states, in order to balance the economic

environment, by providing opportunities for less able states.

f. Federal Legislative Management over Currency.

Currency must be uniform throughout the federation to support a proper

regulation of trade and commerce. The federal legislatures are responsible for the

creation and regulation of the various forms of currency; paper money, coin, legal

tender among others (United States, Article I, Section 8, Paragraph 5), (Canada,

Section 91, Subsection 14), [Australia, Section 51, Subsection (xii)], (Germany,

Article 73, Paragraph 4).

g. Federal Legislative Power to Borrow Money for the Federation.

The government’s borrowing of money for use of the public, and hence on

the credit and responsibility of the public, must be made in a forum where the

state’s representatives can speak for them. In the four constitutions, the power to

borrow money on such situation is placed in the hands of the federal legislature

(United States, Article I, Section 8, Paragraph 2), (Canada, Section 92,


Subsection 4), [Australia, Section 51, Subsection (iv)] and (Germany, Article

115).

h. Federal Legislative Power over Postal Service, Communication,

Rails and Navigation.

Communication and long distance transport is important within the

federation to ensure unity and smooth flow of administration. Federations are

composed of several states, are usually large in terms of territory, and may even

have component territories in outlying islands. Hence it is imperative that the

federal legislature be able to govern by means of law making basic means of

communication such as postal service and or telecommunications (United States,

Article I, Section 8, Paragraph 7), (Canada, Section 91, Subsection 5), [Australia,

Section 51, Subsection (v)] and (Germany, Article 73, Paragraph 7). Long

distance transport such as railways that connect component states and means of

navigations also fall under the same jurisdiction of the federation (Canada,

Section 91, Subsection 10. – Navigation and Shipping), (Australia, Section 98,

Subsection (xxxii) – Rails, Navigation and Shipping) and (Germany, Article 73,

Paragraph 6a - Federal Railways, and Article 74, Paragraph 21. – Navigation and

Shipping)

i. Federal Power to Handle Foreign Affairs.

The national government of a federation has the power to handle affairs

and dealings with foreign powers, nations, and states. This power is not simply


an application of general policymaking power and administrative power. It is a

manifestation that regional governments are all parts of a single whole, and that

single whole is the entirety of the federation. By fact, the federation as a country

is which is represented internationally by the national level government.

In administrative application, the constitution of the U.S. (Article 1,

Section 3) grants the president powers to receive ambassadors, and that of Canada

grants the executive government powers to perform obligations arising from

treaties with foreign countries (Section 132). In policymaking, the legislatures of

all these countries are specifically granted powers to regulate trade with foreign

countries. The Supreme Courts of each have jurisdiction over cases affecting

treaties and relations with foreign political persons.

Germany’s case is made unique with the express constitutional provisions

that the länder may legislate to conclude treaties with foreign states (Article 32).

However, this power is held in check within the same constitutional article that

such treaties conducted by the länder must be given consent by the German

Federal Government.

j. Federal Authority to Admit New States.

The admission of new members into the federation is a decision that

involves all the current members. Hence the power to admit new states and

provinces within the United States, Canada and Australia is handled by their

respective federal legislatures (Article IV, Section 3, Paragraph 1).


Germany only differs since its Constitution (Article 29, Paragraph 1)

instructs on the possible creation of new länder by delimiting pre-existing länder.

In this system, federal law creates the delimitation with respect to “regional,

historical, and cultural ties, economic efficiency, and the requirements of local

and regional planning.” This delimitation is then confirmed by a referendum held

among the population of the affected pre-existing länder (Article 29).

In addition to admitting new states, it is also the federal legislature which

is in charge for the uniformity of regulations regarding aliens and citizenship

through naturalization (United States, Article I, Section 8, Paragraph 4), (Canada,

Section 91, Subsection 25), [Australia, Section 51, Subsection (xix)], and

(Germany, Article 74, Paragraph 4. And Article 73, Paragraph 2).

3rd Essential Feature: Regional Government Units exercising

constitutionally delegated powers over their members.

a. Constitution Preserves Pre-existing Laws in the

States/Provinces/Länder.

Federations are exemplars in the practice of the rule of law. The

Constitution forges the union of the federation. It accomplishes this by having the

existence and powers of the local governments based on constitutional devolution

rather than based on the whim of the federal government. It is also practiced

through the upholding by the Constitution of the laws of the states which compose

the Federation. Such recognition of the ‘identity’ of every individual local state,

province or Land via the instrument of the law, instead of those men and women


who compose the National or Federal Government, creates a situation of equality

and respect for autonomy.

The Constitution of Canada contains several provisions that perform such

function of upholding the laws of the component states. In Canada, the

Constitution preserves pre-Union existing laws, and compositions of Provincial

Offices “until otherwise provided for in the Constitution, or until otherwise

altered by Parliament”. Such Sections of the Canadian Constitution include:

“Section 64 – constitution of the Executive Authority of

Provinces,

Section 84 – election procedures,

Section 88 – constitution of the Legislature of each of the

Provinces of Nova Scotia and New Brunswick,

Section 122 – customs and excise laws of each Province,

Section 129 – laws in force in Canada, Nova Scotia, or New

Brunswick at the Union, and all courts of civil and criminal

jurisdiction, and all legal commissions, powers, and authorities,

and all officers, judicial, administrative, and ministerial.

Section 130 – all officers of the several Provinces having Duties to discharge in relation to Matters other than those coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”

In Australia, Chapter V of the Constitution contains provisions pertaining

the composite states of the Federal Commonwealth. Sections 106, 107, and 108

begin the first three provisions of this chapter. Section 106 preserves pre-existing

Constitutions of the original states or of eventual established or admitted states.

Section 107 preserves the powers of original state parliaments or of future


established or admitted states (unless such powers are vested by the Federal

Constitution to the Parliament of the Commonwealth). And Section 108 preserves

pre-existing state laws (statutes) “relating to any matter within the powers of the

Parliament of the Commonwealth... and until provision is made in that behalf by

the Parliament of the Commonwealth, the Parliament of the State shall have such

powers of alteration and of repeal in respect of any such law.”

Part II of the German Constitution defines basic guidelines for the

Federation and for the länder. In this part of the Constitution, Article 28 which

belongs to this part of the Basic Law is a promise granting “constitutional order”

within the länder through self-government; it also ensures that such

“constitutional order” is guided by “principles of republican, democratic, and

social state governed by the rule of law [boldface added].”

b. Constitution Recognizes Local Government Right to Land, Assets,

and Property.

Closely attached with the concepts of liberty and autonomy is the capacity

to own property and other assets, particularly land. The Canadian Constitution,

Section 109, ensures that Lands, Mines, Minerals, and Royalties belonging to the

several provinces before the Union are retained by the provinces to which such

are situated or located. Section 117 compliments it, and it states, “The several

provinces shall retain all their respective public property not otherwise disposed

of in this Act, subject to the Right of Canada to assume any lands or public

property required for fortifications or for the defense of the country.”


The Australian Constitution mentions in several Sections including

Section 85 (Transfer of state property when public service is transferred to the

Commonwealth), and Section 98 (Taxation of property of Commonwealth or

State) the actual capacity of states to hold property.

In the German Basic Law, 134 (Succession to assets of previously existing

länder and corporations) and Articles 135 (Succession to Reich assets) delineate

the fact that länder have rights to properties and Land and the capacity for

future/possible allocations of additional such assets.

The American Constitution does not expressly cover such provisions but

Article IV, Section 3, Paragraph 1, which deals with the possibility of formation

or erection of new states from parts of any of the current member states, requires

the consent of the Legislatures of the involved states for a part of their land

(territory) to be used in such creation of a new state. Thus it emphasizes

territorial property of the states.

Among these four countries, only the Constitution of Canada (Section 92)

provides expressly for the powers of the Provincial Legislatures to manage and

sell public lands belonging to that particular province’s jurisdiction. Germany

(Article 74, Paragraph 1, Subparagraph 15) on the other hand places “the transfer

of land, natural resources, and means of production to public ownership or other


forms of public enterprise” under concurrent legislative powers10 between the

Federation and the länder.

The capacity to hold land and property and to sell such land and property

for profit that can be used for the administration of the state, province or land is a

mark of economic power through a constitutionally allocated resource. As

previously discussed above, all four written constitutions have items that point to

component states having their own land, property or assets. But with regards to

the selling of such properties for local use, only the Constitution of Canada has an

expressed provision.

This right and capacity of component states within a federation gives them

a basic set of resources to pursue goals for economic development. Land and

property are assets that can be used as means of investment or as capital by the

administrators of a given state. With such means, the states can choose a path

towards their own economic progress without the necessity of reliance upon the

federation.

c. Constitution Grants Local Legislative Power over Natural

Resources.

Among the four Constitutions, Canada (Section 92A) also expressly

provides for Provincial rights and powers to “explore, develop, conserve, manage,

and raise money by any mode of taxation in relation to, non-renewable natural

10 “Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative power by enacting a law for the establishment of equal living conditions throughout the federal territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest” (Germany, Article 72).


resources, forestry resources and electrical energy.” In relation to this, Germany

also classifies the power to legislate over natural resources as a concurrent power

between the Federation and the länder.

d. Constitution Grants Local Legislative Power Over Agriculture.

Agriculture is also a staple of natural economic resources. Both Canada

(Section 95) and Germany (Article 74) has provisions for legislation regarding

agriculture. Canada expressly places agriculture legislations under the hands of

the Provincial legislature. Germany again makes it a subject of concurrent

legislation. In comparison, both in the U.S. and the Australian Constitutions,

legislative powers over agriculture are undelegated.11

e. Constitution Grants Local Government Power Over Education.

Healthy competition which stimulates growth and development is

imperative to liberal democracy and autonomy. This concept is closely related to

the capacity of regional governments to decide and handle policies on education

in order to ensure quality and a competitive drive for achievement. The

production of well educated members of society improves growth and

development for the locality, competition between local states to produce higher

quality education extends the benefits to the entirety of the Federation.

In this respect Canada (Section 93) again expressly provides for Provincial

Legislatures to handle education (subject to certain conditions against prejudice in

11 For provisions on how issues regarding undelegated powers are settled, please see Matrix 12 in the Appendix (Provisions handling Gray Areas).


the acceptance of members of social denomination). Germany (Article 74) places

such powers over education under concurrent powers. Both the Constitutions of

the United states of America and the Commonwealth of Australia have education

as undelegated powers.12

f. Constitution Grants Local Government Power Over Direct

Taxation.

In conjunction to the capacity to hold property is the economic power to

purchase. Powers for direct taxation granted to the local level grants states,

provinces and länder is the capacity to fund policies and projects in an

autonomous manner. This furthers the liberality of the political system and

deconcentration of the economic system. Among the four cases, both Canada and

Germany have expressed constitutional provisions regarding powers of direct

taxation for the provinces and länder respectively.

In Canada, (Section 92, Subsection 2) expressly allows direct taxation for

revenues of Provincial purpose. Subsection 9 of Section 92 adds powers to

legislate by the provinces over Shops, Saloons, Taverns, Auctioneers, and other

Licenses for the raising of revenues for use of that particular province. Section

92A also adds powers of taxation to provinces for the export from one province to

another of non-renewable natural resources, forestry resources, and electrical

energy.

12 “Not delegated” - powers to the United States and which are not prohibited to the States are reserved to the States” [United States, Amendment X (1791)].


In Germany, Article 105, paragraph 2a grants the länder power to make

laws regarding taxes on consumption and expenditures as long as, and “insofar as

they are not substantially similar to taxes imposed by a federal law.” Article 106

paragraph 2, enumerates other direct sources of revenue for the länder: (1)

“property tax; (2) inheritance tax; (3) The motor vehicle tax; (4) beer tax; (5) tax

on gambling establishments; and (6) such taxes on transactions that do not accrue

to the Federation pursuant to paragraph 1 or jointly to the Federation and the

länder pursuant to paragraph 3 of Article 106.”

g. Local Jurisdiction of Courts

The power of a state, province or länder to uphold justice and prosecute

crimes that occurred within its territory is essential to autonomy and liberal

political systems. Both the United States (Article III, Section 2, Paragraph 3) and

the Australian (Section 80) constitution expressly delineates that the trial of

crimes or offences (except for Impeachment – United States) shall be held within

the state where such crime or offence is committed. This provision ensures that

the local laws and the local courts will have competent powers to adjudicate over

the trial of crimes committed within their territorial jurisdiction.

Both the United States Constitution, Article III, Section 2, Paragraph 3;

and Constitution of the Commonwealth of Australia, Article 80, provide that the

trial shall be by jury. Thus the judicial system for crimes and offenses are ensured

to be protected by the principles of liberal democracy. This is so since justice is


ensured through the avenue of a group of peers, weighing and judging the merits

and faults of the case at hand.

4th Essential Feature: Allocation of sources of revenue between the two

levels of government.

Sources of revenues as reliant on the powers of the federal and local level

of governments have been evidenced above in the discussions of the 2nd and 3rd

essential features. Here in the discussion for the 4th essential feature, the method

of allocation characterized by proper regulation and fairness of allocation is

emphasized.

a. Existence of Consolidated Revenue Funds.

Both Australia and Canada expressly use the term “Consolidated Revenue

Fund,” which is a pool of duties and revenues collected throughout the federation.

Its purpose is to ensure a general account for the funding of the public service

through the administration of the federal government (Canada, Sections 102 to

106), and (Australia, Section 81).

The Constitution of Canada delineates the charges to the Consolidated

Revenue Fund of Canada as follows. First Charge: Collection, Management and

Receipt of such Duties and revenues (Section 103). Second Charge: Payment of

the annual interests of the public debts of the provinces (Section 104). Third

Charge: Salary of the Governor General (Section 105). And the Consolidated


Revenue Fund is also charged for the purpose of the Canadian Public Service

(subject to several payments) (Section 106).

Comparatively, the constitution of Australia delineates the charges to the

Consolidated Revenue Fund of Australia as follows. First Charge: Collection,

Management and Receipt of such Duties and revenues (Section 81). The

Consolidated Revenue Fund is also charged for: 1. Payment of interests of public

debts (Section 87 Paragraph 2) or of actual public debts of the states (Australia,

Section 105); 2. Salary of Governor General (Section 3) and Ministers of the

state (Section 66); and 3. for the purposes of the Australian commonwealth

(Section 81).

b. Constitution Delineates Sources and Distribution of Revenues.

As discussed above regarding direct taxation, both Canada and Germany

have provisions for direct taxation by the provinces or länder. A system of direct

taxation is the lifeblood for governments. Direct taxation is an immediate source

of income for financing local activities. It ensures that the provinces or länder do

not have to ask or wait for funds from the federal government for the pursuance of

any action to develop their locale.

The finances of states in U.S. and in Australia come from taxes as

collected by the Federal government and apportioned to them. Article I, Section 8

of the U.S. Constitution places the power to lay and collect taxes, duties, imposts

and excises into the hands of the United States Congress. The same provision

regulates that all duties, imposts, and excises be the same throughout the country.


However, direct taxes, according to Article I, Section 3, Paragraph 3, are to be

apportioned to the several states through numeric proportion of the population of

each state in the same manner as the number of House of Representative members

are apportioned.

As for Australia [Section 51, Subsection (ii)], taxation is placed under

control of Parliament to ensure against discrimination between states or parts of

states. Collection and control of customs, duties and excises are placed in the

hands of the Commonwealth Executive Government (Section 86). The same are

ensured to be uniform throughout the commonwealth within two years after the

establishment of the Commonwealth through constitutional provisions (Section

88). Chapter IV (Finance and Trade) of the Australian constitution (Sections 81 –

82) ensures the proper allocation of revenue through the consolidated revenue

fund, and through other provisions ensuring equal treatment and funding of states

(Sections 81 – 105A.).

In Germany (Article 105, Paragraph 1 and 2; and Article 106, Paragraph

1), the constitution lists exclusive legislative powers of taxation which are for the

Federation, and for the länder; it also has a provision guiding concurrent subjects

for tax legislation. It is most important to note Paragraph 1 of Article 107 which

guides for the creation of a federal law to regulate corporation and wage taxes

which allots shares among the länder. This same federal law created through this

Constitutional provision bestows supplementary shares13 to länder whose income

13 Not exceeding one quarter of a standard Land share of such a revenue.


and corporation taxes are below the average of all the combined länder. This is

done to make equalizations considering the financial strengths of the

municipalities within the länder, and to allow the Federation to help the weak

länder in their financial needs (Article 107, Paragraph 1 – 2).

5th Essential Feature: A written constitution as a binding contract

among regional units, and which cannot be amended unilaterally.

a. Constitutional Statement of Federal Union.

Among the four written constitutions studied, United States, Canada, and

Germany each have statements that affirm the unity or union of the localities

(states, provinces, länder) as one Federal State.

In both the United States and Germany, this statement of union is

embedded within the constitution’s preamble. Thus writes the United States

preamble, “We the people of the United States, in order to form a more perfect

Union…” And the German preamble, “Germans in the länder… have achieved

the unity and freedom of Germany in free self-determination.”

Comparatively, Canada affirms federal unity through both the preamble

and through its preliminary section of the constitution. The preamble reads,

“Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have

expressed their desire to be federally united into One Dominion…” And Section

3 states:

“It shall be lawful for the Queen, by and with the Advice of

Her Majesty’s Most Honourable Privy Council, to declare by

Proclamation that, on and after a Day therein appointed, not


being more than six months after the passing of this Act, the

Provinces of Canada, Nova Scotia, and New Brunswick

shall form and be One Dominion under the name of

Canada [boldface added]; and on and after that day those three

provinces shall form and be One Dominion under that name

accordingly.”

Through such express statements in the basic law of these federal

countries, the constitution truly becomes a binding document. It keeps together

the components of the federation as one. It formalizes the unity within the

diversity of territories, cultures and economic disparities.

b. Due Process of Amending the Constitution through the National

Legislature.

The rule of law through the Constitution unifies the component states,

provinces or länder through its provisions, principles and measures. It cannot

simply be changed by the will of a single member state of the federation.

Changes require a pooling of the thoughts and desires as forwarded by the

citizen’s votes through the instrument of suffrage which appoints the state’s

representatives. Hence the power to amend the Constitution remains first in the

hands of the national/federal legislature. It is the Houses of Congress (U.S.), of

Parliament (Canada and Australia), or the Bundesrat and Bundestag (Germany)

which has the power to propose changes or alterations to their respective

country’s Constitutions (United States, Article V), [Canada, Schedule B.

Constitution Act (1982), Part V, Section 38, Subsection (1), (a)], (Australia,

Section 128) and (Germany, Article 79).


As an added, unique, practice, the Constitutions of U.S. and Canada

extends to the states/provinces the power to propose amendments for

Constitutional revisions. In the United States (Article V), two-thirds of the

several states can call for a convention for proposing amendments. In Canada

[Schedule B. Constitution Act (1982), Part V, Section 38, Subsection (1), (b)],

amendments may be authorized through a resolution made through two-thirds of

the provinces. In such a situation, the aggregate of the provinces concerned must

constitute at least fifty percent of the population of all the provinces of Canada

(based on the most recent census).

6th Essential Feature: An umpire (Supreme/Constitutional Court) to

rule on disputes.

The highest judicial authority in the U.S. is the Supreme Court (Article III,

Sections 1, and Article III Section 2, Paragraphs 1 – 2); in Australia, it is the

Federal Supreme Court otherwise called the High Court (Sections 71, 75, and 76);

in Germany, it is the Federal Constitutional Court (Articles 92, and 93). The

Canadian Supreme Court is not stipulated in the constitution, instead it is both

provided for in Canadian Supreme Court and Exchequer Courts Act, 1875, and

entrenched in Canadian custom.

These courts represent the highest courts in each of the compared

countries. And it is in the wisdom and neutrality of the justices of these courts

with which issues and cases not just between individuals are settled. Moreover,

these courts also are the final arbiter within the federation on issues and cases:


between a regional level government and another regional level government,

and between a regional level government and the national/federal level

government.

a. Protection of Judicial Independence.

In order to ensure true justice, the following elements are needed:

neutrality through judicial independence, protection from undue pressure or

influence from any of the parties involved (Federal Government, states,

provinces, and länder), constitutional protection of the entire judiciary (from the

highest to the inferior courts). These are secured in three areas of constitutional

provisions: (1) Manner of Appointment, (2) Protection of Salary, and (3) Security

of Tenure.

The manner of appointment of justices of the Supreme Court is the very

beginning of securing the neutrality and independence of such organ of the

government. In the United States, the President nominates Judges of the

Supreme Court; the Senate then gives consent (approval through majority vote) as

to the chosen judge, and advice for appointment by the President (Article II,

Section 2, Paragraph 2). In comparison, Federal Supreme Court Judges in

Germany are half elected by the body of the Bundesrat and half by the Bundestag

(Article 94, Paragraph 1). These examples show that checks and balances (either

through the presidential or parliamentary system) compliment the independence

of the Supreme Court in federal systems.


A threat to the salary or compensation of a person can influence decision

making. Alexander Hamilton wrote in the Federalist Papers, No. 79: “In the

general course of human nature, a power over a man’s subsistence amounts to a

power over his will” (The Federalist No. 79).

Among the four federal constitutions, only the U.S. has a Presidential

System to separate powers of government, the other three are Parliamentary

Systems which fuses the powers of the government. The significance of this is

that however these constitutions are dissimilar in the system of separation of

powers (3 constitutions fuses power in a parliamentary system); they still provide

means to ensure the independence of judges. To illustrate:

Both the American (Article III, Section 1) and the Australian constitution

[Section 72, Subsection (iii)] provide that the compensation (U.S.) or

remuneration (Australia) of judges “shall not be diminished during their

continuance in office.” The German constitution on the other hand does not

expressly provide such prohibition but article 97 states: “Judges shall be

independent and subject only to the law” [Section 72, Subsection (iii)]. Thus

judges are still protected from undue pressures or influence in Germany.

b. Adjudicatory Power of the Supreme Court

The Supreme Court of the United States of America have original

jurisdiction over controversies: to which the United States shall be a party;

between two or more states; between a state and citizens of another state; between


a state, or the citizens thereof, and foreign states, citizens or subjects (Article III,

Section 2, Paragraphs 1 – 2).

The High Court (Federal Supreme Court) of Australia has original

jurisdiction in all matters: in which the Commonwealth of Australia is a party;

between states; or between a state and a resident of another state [Section 75,

Subsection (iii) and (iv)].

The Federal Constitutional court of Germany shall rule over cases as

directly quoted in the following sub-paragraphs:

“2. In the event of disagreements or doubts respecting the

formal or substantive compatibility of federal law or Land

law with this Basic Law, or the compatibility of Land law

with other federal law, on application of the Federal

Government, of a Land government, or of one third of the

Members of the Bundestag;

2a. In the event of disagreements on whether a law meets the

requirements in the application of concurrent legislative

powers.

3. In the event of disagreements respecting the rights and

duties of the Federation and the länder, especially in the

execution of federal law by the länder and in the exercise of

federal oversight;

4. On other disputes involving public law between the

Federation and the länder, between different länder, or

within a Land, unless there is recourse to another court;

4b. On constitutional complaints filed by municipalities or

associations of municipalities on the ground that their right to

self-government under Article 28 has been infringed by a law;

[and] In the case of infringement by a Land law, however, only


if the law cannot be challenged in the constitutional court of

the Land…” (Article 93, Paragraph 1, Subparagraphs 2, 2a, 3,

4, and 4b)

c. Constitutional Provisions Handling Gray Areas.

Gray areas in the constitution are instances when there is either absences

of legal provisions on particular subjects (undelegated powers), or contradictions

and inconsistencies between laws made by the national level legislature and the

regional level (state, province, länder) legislatures. Because of this, disputes may

occur regarding execution of laws due to contradictions, inconsistencies or

overlaps. Such disputes that arise due to the gray areas are handled, as discussed

above, by the highest judicial authorities of the particular country. Also,

functioning as guides for the resolution of such disputes, the four written

constitutions that were studied display their own stipulations that act as

safeguards in the eventuality of problems between laws.

In the United States, Amendment X (1791) stipulated that powers not

delegated to the Federal organs of the government, or those powers not prohibited

to the states, are reserved to the states respectively, or to the people.

The Canadian constitution (Section 92, Subsection 16) assigns to the

provincial legislatures generally all matters of a merely local or private nature in

the province, right after a listing of which specific subjects shall be under their

legislative competency. In conjunction, it also classifies that all subjects listed

under the powers of Parliament (Section 91) “shall not be deemed as local or


private in nature.14 And in addition to these, it is provided that, any class of

subjects shall be considered exclusive powers of Parliament if such a class of

subjects is expressly exempted in the list of powers assigned to the Provincial

legislatures. This ensures a clear delineation of which subjects are Provincial and

which subjects are Parliamentary in nature.

Certain Sections which compose Part V “The States” of the Australian

constitution regulate any possibility of inconsistencies, particularly with laws that

have been in effect within a state even before the Union of the

Commonwealth. Section 107 saves the powers of the Parliaments of States upon

the time of the Union. It also stipulates that the former powers of state

parliaments before the Union continue within that same regional level parliament

unless the constitution vests such powers to the national level parliament.

Section 108 of the Australian constitution saves the laws of states which

enter into the Union of the Commonwealth. It is written that a law in force

relating to any matter within the powers of the Commonwealth shall continue in

force within that state. And the parliament of the particular state retains such

powers of alteration and repeal with regards to any such law. Such a legal

arrangement is premised on the requirement that the Parliament of the

Commonwealth does not make any provisions on that particular matter of the law.

14 Section 91, paragraph immediately after Subsection 29.


In the event that inconsistencies occur among the laws of Australia,

Section 109 expresses that that law of the Commonwealth prevails over the law of

the state; furthermore, the latter is invalid to the extent of the inconsistency.

Within the constitutional provisions of Germany, there are several articles

that manage gray areas and the possibilities of legal inconsistencies.

Article 30 of the German Constitution clarifies authority within the

federation, “except as otherwise provided or permitted by the Basic Law, the

exercise of state powers and the discharge of state functions is a matter for the

länder.” Legislative power between the Federation and the länder on the other

hand is clarified by allowing the länder to legislate on matters not expressly

conferred to the Federation (Article 70, Paragraph 1); the länder may also

legislate on subjects that fall under exclusive legislative powers of the federation

if they are expressly authorized by federal law (Article 71).

Legislative powers are further governed by provisions regarding

concurrent legislative powers (Germany, Article 70, Paragraph 2). Concurrent

legislative powers ensure that the legislatures of the länder may legislate on the

subjects placed under the list of matters found in Articles 74, 74a, 105, 125a.

Such powers of the legislatures of the länder are conditioned on accounts that:

a. The Federation has not exercised legislative powers over such subject

matter by enacting a law (Article 72, Paragraph 1).

b. The Federation shall have the right to legislate on such matters if and

to the extent that the establishment of (1) equal living conditions


throughout the federal territory or (2) the maintenance of legal or

economic unity (Article 72, Paragraph 2).

c. A federal law may provide that federal legislation may be superseded

by Land law, if such legislation is no longer necessary or the

establishment of (1) equal living conditions throughout the federal

territory or (2) the maintenance of legal or economic unity (Article 72,

Paragraph 3).

d. The Federation shall have the right to legislate over all other taxes the

revenue from which accrues to it wholly or in part or as to establish (1)

equal living conditions throughout the federal territory or (2) the

maintenance of legal or economic unity (Article 105, Paragraph 2).

e. The Federation shall have the right to legislate concurrently for a state

of defense even with respect to matters within the legislative powers of

the länder during a state of defense (Article 115c).

Finally the German basic law provides that, in cases of inconsistency or

contradiction between a law of the federation and that of the länder, Article 31

states, “Federal law shall take precedence over Land law.”


7th Essential Feature: Processes and Institutions to facilitate

intergovernmental interaction and coordination.

As covered in the previous features of the four model federal political

systems, their Constitutions provide the processes and institutions which will ease

the relationship between the federal and local levels of government. Having two

levels of government may seem difficult to manage at first glance, but these

processes and institutions function as safeguards. They help the federal political

system run smoothly.

And however that there are several regional governments that have their

own agendas, these institutions and processes help maintain order, organization

and unity within the federation. There are actual situations on the working and

actions of such institutions and the applications of such processes. This is where

the potential of federalism leads to practicability. Table 2 provides such examples

of actual practice of institutions and processes in the four model countries.

Table 2.

Facilitating Processes and Institutions in a Federal System.

INSTITUTIONS PROCESSES APPLICATION

Federal Chief Executive

• Direct actions to guide and administer over the entire nation.

U.S – Bush handling the 9/11 attack and Hurricane Katrina devastation (2005); Roosevelt executive orders during the Great Depression (1933) (Gerston, 2007). Germany – The Chancellor initiates meetings among technocrats and Lander ministers to discuss economic and other


issues affecting German life (health, environment, transport) (Benz, 2009).

• Influence over national policy.

U.S. – Bush Educational Policies (2000’s), Clinton Environmental Policies (1990’s) (Benz). Australia – The 1999 referendum on severing Australia’s links with the British Crown and becoming a republic is influenced by federal concerns since the British Queen as Head of State is represented

not just in the federal

government but also in the states

(Saunders, 2005).


Federal Legislatures

• Legislative dynamics through equal representation.

Germany – A balanced federal legislation accrues through a majority vote requirement in both the lower house, composed of popularly elected members, and the upper house, composed of the delegates of the Lander governments (Schmidt).

• Legislative dynamics through party politics.

U.S. – Democrat and Republican influence over policies from the days of the New deal until the present. Resulting to legislations such as: Unfunded Mandates Reform Act (1995), Personal Responsibility and Work Opportunity Reconciliation Act (1996), Class Action Fairness Act (2005) (Gerston, 2007). Germany – Dynamics of votes and alliances between Christian Democratic Union (CDU), Christian Social Union (CSU) other smaller parties crating impacts on Chancellor selection and the passing of bills (Schmidt).


Coordinating • Management of All Four Countries –


bodies of exclusively regional competence and jurisdiction.

varying regional policies.

Bureaucracies (both federal and regional) All Four Countries – Local Lower Courts Bureaucracies Canada - Cooperative and coordinative bodies such as Canadian Council of Ministers of the Environment, New Quebec proposal to formalize a Council of the federation, Western Premiere’s Conference, and Council of Atlantic Premiere’s (Dennison, 2003). Germany - Conference of the Ministers for Cultural and Educational Affairs, Conference of Ministers of the Environment (Benz) and Intergovernmental conferences and administrative networks (Benz).

• Facilitate interaction and coordination between the Federal Government and the Regional Governments.

Canada – Regular meetings of Council of Ministers of Education (Dennison). Germany - “Politikverflechtung” (interlocking politics or joint decision-making) coordination between the federation and the various Lander. Public administration based on benchmarking of efficiency and performance as an innovative method of coordination among the Lander (Benz).


Independent Judiciary

• The Rule of Law. U.S. – Celebrated cases such as Brown v. Board of Education (1954), minimized state powers to promote national values using constitutional guarantees; and Board of Trustees v. Garrett (2001), enhanced state government powers regarding the


Americans with Disabilities Act (Gerston). Australia – Celebrated ruling of the High Court which increasingly challenged post-war social policies of the Federal Labour government (Patapan, 2009), on the Corporation Law, on the conferral of state jurisdiction on the federal court and state power on federal officials (Saunders). Germany – Celebrated cases such as those on abortion law, co-determination in industry, and the constitutionality of the route to German unification (Schmidt).

• Protection of Judges and maintaining fairness in the adjudication between the Federal Government and the Regional Governments; and between a Regional Government and another Regional Government.

Canada - . “If a judge gave a decision the government disliked, it could not touch him or her, unless both Houses of Parliament agreed” (Gorsey, 2005). Germany – The procedure of selecting Constitutional Court Judges ensures a fair and balanced system since the federal government and state government have equal powers of influence (Gorsey).


Regional Governments

- Executives and,

- Legislatures

• Regional Government actions:

- Actual administrative actions on their scope of authority,

- Actual legislations within their scope of

U.S. – Connecticut attorney general sued the federal government for not providing enough funds to implement the No Child Left Behind Act (2001); California fought for and have been granted the right to adopt environmental regulations that are stronger the federal laws (Gerston).

U.S. – 1997-2007 federal legislation on minimum-wage was at of $5.15 per hour, yet twenty-


powers.

- Initiative on issues within immediate location.

nine states legislated higher minimum wages at that same time frame. Congress has been unable to propose an amendment to the U.S. Constitution prohibiting gay marriage, more than 26 states have a state constitutional amendment prohibiting same-sex marriage, and about 43 states have a statute restricting marriage to a woman and a man. Yet, Massachusetts legalized same-sex marriage in 2004. California, Connecticut, New Jersey, and Vermont have established civil unions that offer gay couples nearly all the legal rights and responsibilities of marriage. Hawaii, Maine, and the District of Columbia permit same-sex civil unions that provide various rights and responsibilities associated with marriage under their laws (Kincaid, 2008). Canada – “Every province has a legislative assembly (there are no Upper Houses) that is very similar to the House of Commons and transacts its business in much the same way. All bills must go through three readings and receive Royal Assent by the Lieutenant-Governor. In the provinces,

assent has been refused 28 times,

the last in 1945, in Prince

Edward Island. Members of the legislature are elected from constituencies established by the legislature roughly in proportion to population” (Gorsey).

Germany - “States have a considerable share of the responsibility for the planning and formation of public policy through


a wide variety of institutions of co-

operative federalism and through self-coordination” (Schmidt).

U.S. – 2001 State initiated actions on immigration related incidents (due to 9/11 crisis); 1960 state initiated anti-sodomy laws in fifty states (Gerston).


B. Three Potential Applications of a Federal Convention to the Republic of

the Philippines

1. Consolidation of Territory through Devolution of Legislative and

Administrative Powers (Geopolitics).

The state’s power must reach very corner of the territory to ensure

consolidation of all its elements and members into one union (Jones, Jones, and

Words, 2004). By doing so, the government is able to attend to the unique needs

of the people living in each particular region. This in return ensures obedience or

acquiescence of the people (and the regions as political entities) to the national

government. This is an actual manifestation of sovereignty within the territory.

However, as the territory grows in size, or if the territory has geographic features

such as being mountainous or archipelagic (which are factors that create natural

barriers) then the central state’s government is hindered from sending out its

powers across the land to care for the people’s needs and also to gain their support

or obedience.

Figure 4 is a map delineating the geopolitical subdivisions of the United

States. These are: 1) Alabama, 2) Alaska, 3) Arizona, 4) Arkansas, 5) California,

6) Colorado, 7) Connecticut, 8) Delaware, 9) Florida, 10) Georgia, 11) Hawaii,

12) Idaho, 13) Illinois, 14) Indiana, 15) Iowa, 16) Kansas, 17) Kentucky, 18)

Louisiana, 19) Maine, 20) Maryland, 21) Massachusetts, 22) Michigan, 23)

Minnesota, 24) Mississippi, 25) Missouri, 26) Montana, 27) Nebraska, 28)

Nevada, 29) New Hampshire, 30) New Jersey, 31) New Mexico, 32) New York,


33) North Carolina, 34) North Dakota, 35) Ohio, 36) Oklahoma, 37) Oregon, 38)

Pennsylvania, 39) Rhode Island, 40) South Carolina, 41) South Dakota, 42)

Tennessee, 43) Texas, 44) Utah, 45) Vermont, 46) Virginia, 47) Washington, 48)

West Virginia, 49) Wisconsin, 50) Wyoming, (Washington D.C. - Seat of Federal

Government).

The map in Figure 5 displays Canada’s geopolitical subdivisions: 1)

Alberta, 2) British Columbia, 3) Manitoba, 4) New Brunswick, 5) Newfoundland

and Labrador, 6) Nova Scotia, 7) Ontario, 8) Prince Edward Island, 9) Québec,

10) Saskatchewan. Territories: 1) Northwest Territories, 2) Nunavut, 3) Yukon

Territory.

The geopolitical divisions of Australia are illustrated in the map in Figure

6. It includes: States: 1) New South Wales, 2) Queensland, 3) South Australia, 4)

Tasmania, 5) Victoria, 6) Western Australia. Territories: 1) Australian Capital

Territory, 2) Northern Territory.

Lastly, Germnay’s geopolitical subdivisions can be observed in Figure 7.

These are as follows: 1) Baden-Württemberg, 2) Bavaria, 3) Berlin, 4)

Brandenburg, 5) Bremen, 6) Hamburg, 7) Hessen, 8) Mecklenburg-Vorpommern,

9) Lower Saxony, 10) North Rhine-Westphalia, 11) Rhineland-Palatinate, 12)

Saarland, 13) Saxony, 14) Saxony-Anhalt, 15) Schleswig-Holstein, 16)

Thüringen.

The United States, Canada and Australia each have land areas that are all

of great size compared to the other countries in the world. In fact, both the United


States and Canada occupy the largest expanse of the entire North American

continent; Australia on the other hand is an entire continent on its own. Aside

from having large, single land masses, these countries also have territories that are

separate from their respective mainlands. Given such geographic challenges, all

these countries remain united as one, and the respective national state

governments are sovereign within their respective territories.

The single central government in a unitary political system is impractical

to govern a vast expanse of land, or a land with fragmented topography, since the

various local governments become reliant to its pyramidal hierarchy. With the

distance of the territories, the situation in one area could be different in the others

(such as weather, health related eventualities, school and economic activities).

Through the federal system, the vast territories each gain a constitutionally

empowered government (regional governments: states, provinces, länder), able to

function and meet the immediate demands of public life in that location. At the

same time, the federal constitution maintains a national level of government

(federal government) which consolidates the scattered regional governments into

a unified whole. This is the practice of devolution, the decentralization of powers

through the covenant of the constitution. It is through this system that true

consolidation over territory takes place (Jones).

The presence of competent regional institutions, and practice of federal

processes, as evidenced in Table 2 of the previous discussion, substantiates the

fact that a federal system is well suited for managing large areas of territory such


as U.S., Canada, and Australia. The Philippines having an archipelagic and

mountainous topography necessitates the federal system to consolidate power and

unity.

The consolidating power of federalism over territory makes it practicable

in the Philippine setting. The Philippines is an archipelagic territory. It consists

of around 7,100 islands. These islands extend from north to south along a

1,100mi area in the Pacific Ocean. These scattered landmasses are grouped into

Luzon in the north, Visayas in the center, and Mindanao in the south. Studies

show that 95% of the country’s land area and population are situated on 11 of its

largest islands. These 11 largest islands (excepting the central plain in Luzon)

have the geographic characteristics of being mountainous, and coastlines that are

heavily indented. Manila, the Republic’s premier city and political, economic and

educational center, has a geopolitical situation of being located on Luzon Island to

the north, and very distant from the south (Jansenn, 2010).

The fact exists that not only government, but also economy and education,

and by extension technology and other blessings of development are centered on

Manila. In a unitary system of government, these create an unequal geopolitical

environment for all the other regions of the Philippines. As supported by

statistical data from the Philippine National Statistics Office (see Tables 4 and 6),

social and economic indicators by region do not just vary; there is an extreme

tendency for development in the Manila area. There are also some areas where


development could be seen. But some areas are but a few when there are

scattered territories in need of self-sufficiency.

Table 3.

Geographic Comparison of the Four Model Federations and the Philippines.

U.S.A.15 CANADA

16 AUSTRALIA

17

GERMANY18

PHILIPPINES19

Tota

l

land

Are

a 9,826,675

sq km

9,984,670 sq km

7,741,220 sq km

357,022 sq km

300,000 sq km

Tota

l

Are

a in

Ter

ms of 9,161,966

sq km 9,093,507 sq km

7,682,300 sq km

348,672 sq km

298,170 sq km

Tota

l

Are

a in

Ter

ms of 664,709 sq

km 891,163 sq km

58,920 sq km

8,350 sq km 1,830 sq km

Rank in S

ize

Com

pare

d to the

Worl

d’s

Countr

ies 3rd

(about half the size of Russia; more than twice the size of the European Union)

2nd (slightly larger than the US)

6th (slightly smaller than the US contiguous 48 states)

62nd (slightly smaller than Montana)

72nd

(slightly larger than Arizona)

15 Central Intelligence Agency, “United States of America” in The World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/us.html, 2010, (Last Accessed August 2010). 16 Central Intelligence Agency, “Canada” in the World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/ca.html, 2010, (Last Accessed August 2010). 17 Central Intelligence Agency, “Australia” in the World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/as.html, 2010, (Last Accessed August 2010). 18 Central Intelligence Agency, “Germany” in the World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/gm.html, 2010, (Last Accessed August 2010). 19 Central Intelligence Agency, “Philippines” in the World Factbook, https://www.cia.gov/library/publications/the-world-factbook/geos/rp.html, 2010, (Last Accessed August 2010).

UNIVERSITY OF SANTO TOMAS GRADUATE SCHOOL PAGE

Map of the U.S. Federation Featuring the Regional Levels

20 Geology.com. “United States Map 2006. http://geology.com/world/theAccessed October 2010).

UNIVERSITY OF SANTO TOMAS GRADUATE SCHOOL PAGE

Figure 4.


(50 States).20

Geology.com. “United States Map – United States Satellite Image.” Geology.com website.

http://geology.com/world/the-united-states-of-america-satellite-image.shtml



United States Satellite Image.” Geology.com website. image.shtml. (Last


Figure 5.

Map of Canadian Federation Featuring the Regional Levels

(10 Provinces and 3 Territories).21

21 Geology.com. “Canada map – Canada Satellite Image.” Geology.com website. 2006. http://geology.com/world/canada-satellite-image.shtml. (Last Accessed October 2010).


Figure 6.

Map of the Australian Federation Featuring the Regional Levels

(6 States and 2 Territories).22

22 Geology.com. “Australia Map – Australia Satellite Image.” Geology.com website. 2006. http://geology.com/world/australia-satellite-image.shtml. (Last Accessed October 2010).


Figure 7.

Map of the German Federation Featuring the Regional Levels

(16 Länder).23

23 Map of Germany.org. “Map of Germany.” Map of Germany.org website. 2008. http://www.map-of-germany.org/map-of-germany.gif. (Last Accessed October 2010).


Figure 8.

Map of the Philippine Archipelago Featuring the Regional Levels

(17 Regions).24

24 Wow Philippines. “Provincial Map of the Philippines.” Go Package Tourism website. 2010. http://www.go-package.com/wowphilippines/philippine_map.asp. (Last Accessed October 2010).


The Philippines is similar in geopolitical situation with the previous four

countries. The Philippines is a fractured territory since it’s an archipelago with

scattered islands. These Islands are grouped into 17 regions as can be seen in

Figure 8: 1) National Capital Region, 2) Cordillera Administrative Region, 3)

Region I – Ilocos, 4) Region II - Cagayan Valley, 5) Region III - Central Luzon,

6) Region IVA – Calabarzon, 7) Region IVB – Mimaropa, 8) Region V – Bicol,

9) Region VI - Western Visayas, 10) Region VII - Central Visayas, 11) Region

VIII - Eastern Visayas, 12) Region IX - Zamboanga Peninsula, 13) Region X -

Northern Mindanao, 14) Region XI – Davao, 15) XII – Soccsksargen, 16) Region

XIII – Caraga, 17, Autonomous Region in Muslim Mindanao.

By having a federal system of government, the various regional

governments of the Philippines, become States or Provinces, and can have proper

constitutional powers to pursue autonomous socio-economic agenda for

development. This in application is federal decentralization through

constitutional devolution, which is the redistribution of governmental powers

and recognition of regional governments by means of the principal law of the

land. Because the regions exist with their own levels of government, each having

competent powers over immediate concerns, they can act without need of

dependence on the national government.

Federalism is more practicable since, aside from policymaking and

autonomous administration, the regional governments will have their own

resources to back up their management plans for the area without having to wait


on decisions and help from the national government. With such a system, the

governments of areas distant from Manila will not anymore imply “distance from

civilization and development”; having power to decide and implement means that

the regions can compete for development with the neighboring areas and thus

strive for the fulfillment of their own competencies. This stimulates growth both

socially and economically.

2. Accommodation of Cultural Idiosyncrasies through Devolution

(Political Culture).

Diversity in ethnic groupings, religious beliefs, languages, traditions and

customs, creates stresses to the political system. These differences usually stem

from the groupings based on location thus leading to regionalism. When taken

into extremes, these differences tend to escalate as regionalistic division or even

into armed conflict.

The features of federalism have a covenantal effect to the political system.

Through constitutional safeguards that recognize, respect and empower the

identities of regions as having their own governments, these regional level

governments, in return, consents to be bound together under the supervision of the

national level government or federation. In this scenario, the federal level of

government functions as the singular leader among these regional governments,

thus creating a political situation of equality under a covenant – the constitution.

This covenant makes the constitution the true sovereign power even if

there are several states each having a government of its own in the federal system.


Recognition and powers granted by the Constitution allow the regional

governments to make policies that fit the culture, religious beliefs, traditions, and

ethno-linguistic needs of the people within their territory. This is in effect an

application of Elazar’s idea that the federal system engenders accommodation. It

brings about unity while allowing the differing regions to maintain their cultural

idiosyncrasies (Moots, 2009).

The U.S., aside from having people of Native American Indian heritage is

a hodge-podge of immigrants from everywhere in the world. This mix is enough

to create whole communities of various races and ethnicities. The country’s

groups of peoples also have a tendency to be strongly identified culturally to the

area that they reside in (e.g. Texans, New Yorkers, Californians, Hawaiians).


Table 4.

Demographic Comparison of the Four Model Federations and the

Philippines.

U.S.A. 25

CANADA26 AUSTRALIA

27

GERMANY28 PHILIPPINES

29

Nationality

American(s) Canadian(s) Australian(s) German(s) Filipino(s)

Eth

nic

Gro

ups White 79.96%, black

12.85%, Asian 4.43%, Amerindian and Alaska native 0.97%, native Hawaiian and other Pacific islander 0.18%, two or more races 1.61% (July 2007 estimate) note: a separate listing for Hispanic is not included because the US Census Bureau considers Hispanic to mean persons of Spanish/Hispanic/Latino origin including those of Mexican, Cuban, Puerto Rican, Dominican Republic, Spanish, and Central or South American origin living in the US who may be of any race or ethnic group (white, black, Asian, etc.); about

British Isles origin 28%, French origin 23%, other European 15%, Amerindian 2%, other, mostly Asian, African, Arab 6%, mixed background 26%

white 92%, Asian 7%, aboriginal and other 1%

German 91.5%, Turkish 2.4%, other 6.1% (made up largely of Greek, Italian, Polish, Russian, Serbo-Croatian, Spanish)

Tagalog 28.1%, Cebuano 13.1%, Ilocano 9%, Bisaya/Binisaya 7.6%, Hiligaynon Ilonggo 7.5%, Bikol 6%, Waray 3.4%, other 25.3% (2000 census)

25 CIA World Factbook, USA, 2010. 26 CIA World Factbook, Canada, 2010. 27 CIA World Factbook, Australia, 2010. 28 CIA World Factbook, Germany, 2010. 29 CIA World Factbook, Philippines, 2010.


15.1% of the total US population is Hispanic

Rel

igio

ns Protestant 51.3%,

Roman Catholic 23.9%, Mormon 1.7%, other Christian 1.6%, Jewish 1.7%, Buddhist 0.7%, Muslim 0.6%, other or unspecified 2.5%, unaffiliated 12.1%, none 4% (2007 est.)

Roman Catholic 42.6%, Protestant 23.3% (including United Church 9.5%, Anglican 6.8%, Baptist 2.4%, Lutheran 2%), other Christian 4.4%, Muslim 1.9%, other and unspecified 11.8%, none 16% (2001 census)

Catholic 25.8%, Anglican 18.7%, Uniting Church 5.7%, Presbyterian and Reformed 3%, Eastern Orthodox 2.7%, other Christian 7.9%, Buddhist 2.1%, Muslim 1.7%, other 2.4%, unspecified 11.3%, none 18.7% (2006 Census)

Protestant 34%, Roman Catholic 34%, Muslim 3.7%, unaffiliated or other 28.3%

Roman Catholic 80.9%, Muslim 5%, Evangelical 2.8%, Iglesia ni Kristo 2.3%, Aglipayan 2%, other Christian 4.5%, other 1.8%, unspecified 0.6%, none 0.1% (2000 census)

Languages

English 82.1%, Spanish 10.7%, other Indo-European 3.8%, Asian and Pacific island 2.7%, other 0.7% (2000 census)

English (official) 58.8%, French (official) 21.6%, other 19.6% (2006 Census)

English 78.5%, Chinese 2.5%, Italian 1.6%, Greek 1.3%, Arabic 1.2%, Vietnamese 1%, other 8.2%, unspecified 5.7% (2006 Census)

German Filipino (official; based on Tagalog) and English (official); eight major dialects - Tagalog, Cebuano, Ilocano, Hiligaynon or Ilonggo, Bicol, Waray, Pampango, and Pangasinan


Canada has socio-linguistic diversity between the English and French-

speaking Canadians, in addition to having aboriginal Canadians (Gagnon and

Simeo, 2009). Australian society is diversified among English, Scottish, and Irish

decent; Chinese and South Pacific decent; and also the Australian indigenous

people (Aroney, 2009).

In Germany, the territory is diversified between six poorer eastern länder

and ten richer western länder. Aside from this, Germany is also home to peoples

of Turkish ancestries, “ethnic Germans” from Russia, and other ethnic groups;

and territorial groupings such as: Danes in Schleswig-Holstein, the Sorbians in

Saxony and Brandenburg, and the Frieslanders in Lower Saxony and (also) in

Schleswig-Holstein (Bendel and Sturm, 2009).

30 Note (from Central Intelligence Agency): values are at 2009 U.S. Dollars. 31 CIA World Factbook, USA, 2010. 32 CIA World Factbook, Canada, 2010. 33 CIA World Factbook, Australia, 2010. 34 CIA World Factbook, Germany, 2010. 35 CIA World Factbook, Philippines, 2010.

Table 5.

GDP Per Capita (PPP) of the Four Model Federations and the Philippines.30

U.S.A.31 CANADA

32 AUSTRALIA

33 GERMANY

34 PHILIPPINES

35

2009

est.

$ 46,000 $ 38,200 $ 40,000 $ 34,100 $ 3,300

2008

est.

$47,700 $39,500 $40,000 $35,900 $3,300

2007

est.

$48,200 $39,600 $39,600 $35,400 $3,300


36 Note (from National Statistics Office): Details may not add up to totals due to rounding. Source: National Statistics Office, 2003 Family Income and Expenditure Survey Final Results, September 14, 2007, http://www.census.gov.ph/data/sectordata/2003/ie03fr11.htm, (Accessed October 2010). And National Statistics Office, 2003 and 2006 Family Income and Expenditure

Survey, Final Results, July 9, 2008, http://www.census.gov.ph/data/sectordata/2006/ie06fr04a.htm, (Accessed October 2010). 37 In 2000, Basilan including Isabela City was under Region IX. 38 In 2000, Marawi City is a part of Region XII. 39 Basilan province (excluding Isabela City), which was part of Region IX in 2000, has been transferred to ARMM under EO 36.

Table 6.

Regional Average Income and Average Savings of Families at Current Prices

(values in thousand pesos) 2000, 2003 and 2006.36

Region Average Income Average Savings

2000 2003 2006 2000 2003 2006

1 National Capital Region 300 266 311 56 48 53

2 Cordillera Administrative Region

140 152 192 59 26 42

3 I – Ilocos 121 124 142 25 22 19

4 II - Cagayan Valley 108 126 143 20 27 25

5 III - Central Luzon 151 160 198 31 22 27

6 IVA – Calabarzon 179 184 210 29 26 23

7 IVB – Mimaropa 99 103 109 20 19 16

8 V – Bicol 95 109 125 13 15 15

9 VI - Western Visayas 110 111 130 15 14 14

10 VII - Central Visayas 100 121 144 16 19 21

11 VIII - Eastern Visayas 92 103 126 19 19 22

12 IX - Zamboanga Peninsula37 88 93 125 17 18 27

13 X - Northern Mindanao 108 109 142 25 18 25

14 XI – Davao 108 117 135 17 18 19

15 XII - Soccsksargen38 103 113 114 21 28 18

16 XIII – Caraga 82 90 118 9 12 18

17 Autonomous Region in Muslim Mindanao39

79 83 89 14 16 14

Mean 121.35 127.29 150.18 23.88 21.59 23.41

Standard Deviation

INCLUDING NCR

52.70 44.12 52.43 13.87 8.25 10.19

Standard Deviation

EXCLUDING NCR

26.49 26.71 33.16 11.50 4.82 6.98


Among these countries, the covenantal effect of federalism manages

socio-cultural diversity and idiosyncrasies. A federal convention accomplishes

this through practices of: a) Autonomy of the states to respond to and fight for

their jurisdiction cultural and ethnic rights; b) the inter-governmental interactions

between the regional governments and the federal government (Bendel and

Sturm); c) the institutions that interlink these levels of governments and thus the

regions (Bendel and Sturm); d) multiculturalism and intraculturalism practices

imbued in the constitution (Gagnon and Simeon).

In the Philippines, the country’s social environment is described as beset

with cultural and ethno-linguistic issues that create rifts between peoples and thus

divisions within the political system. Carolina Hernandez describes ethnic and

linguistic issues that affect not only the ordinary lives of Filipinos but also affects

Philippine politics:

“The major ethnolinguistic groups that have shaped politics were the Tagalogs, Ilocanos, and Pampangans of Luzon, the Cebuanos of the Visayas, and the Muslim Maranaos and Tausugs of Mindanao. Close to the seat of power in Manila, Tagalogs have exerted the greatest political influence dating back to the nineteenth-century reformists and their revolutionary successors. They succeeded in making Tagalog the basis of a national language called “Pilipino” at a time when Cebuano speakers constituted the majority; by 1990 it was the language understood by most Filipinos….” (Hernandez, 1993). Hernandez posits that ethnolinguistic peculiarities linked to geographical

fragmentation is amplified by difficult travel and communication within the

geographically fragmented territory. These factors were able to reinforce

regionalism in both culture and politics. More so, it came to pass that a common


opinion among the regions spread that there is a “Manila-based, Tagalog-

dominated colonialism” within the system. Given the situation, there have only

been two cases of large scale violence: 1) Muslim separatism lead by the Moro

National Liberation front (MNLF) in Mindanao, and 2) the autonomy movement

led by ethnic communities in the Cordillera Mountains (Hernandez). To bring a

stop to these, the 1987 Constitution has provided for regional autonomy for both

areas, however violence has not yet ceased, the feeling of inequality has not yet

been felt, and economic development is not yet evident in both regions

(Hernandez).

Federalism’s covenantal process helps bind together differing

ethnolinguistic groups through accommodation. It does not just give particular

areas with one time benefits that can be considered as merely lip service. This is

so because autonomy granted by the constitution in a centralized system is not

realistic in application since there are only two among seventeen regions which

have been granted such a blessing. Also, even if the unitary system constitution

grants autonomy to local governments, the monolithic structure of the unitary

system inhibits the culture and processes for the regional actors to make good use

of such a blessing – they still remain reliant to the center.

In comparison, a country where in the seven features of federalism is used

creates a political situation of actually being able to practice the autonomy spoken

of in the constitution. Here, the powers have been granted directly by the

constitution rather than commanded by the constitution for the central government


to delegate. Because of this, the power of the regional governments is not granted

nor cannot simply be taken back by men and women who compose the

administration. Hence, the regional governments gain the competency to adapt

policies to their own cultural heritage. And as individuals bound by a covenant,

they are accommodated as one while retaining their own uniqueness.

In addition to this, accommodation through incorporation of a culture of

autonomy cannot be possible when many local governments are reliant to the

central government. Autonomy is supported since in a federal system, both

governments at the national and regional levels have their own defined areas and

matters of jurisdiction, coupled with actual resources to handle such jobs.

3. Stimulation of Development and Managing Regional Fiscal

Disparities through Deconcentration of Economic Forces (Political

Economy).

Table 5 shows a summary of the economic productiveness of the model

countries juxtaposed with that of the Philippines. United States, Canada, and

Germany are all members of the G8 leaders; all three with the addition of

Australia are all highly economically developed countries. Based on the

experiences within each of these countries, experts point out that the blessings of

a good economy are well spread among the different regions. This is evidenced

by their comparative Gross Domestic Products (GDP) as measured in terms of

Per Capita (divided according to population).


Applications of the economic blessings of federalism can be seen in the

four model countries. As observed in various studies, in Canada it is noted that

provinces have been enjoying an increase in their fiscal autonomy over the

passing of years. Such as in 1970, total revenues were pegged: for the federal

government at 16.7% of GDP, and the regional governments at 17.6%. And in

1999, revenues had increased marginally: for the federal government to 18.9% of

GDP, and regional governments to 22.7% (Simeon, 2001).

These economic benefits are made possible through the dynamics of

federal relations between the federal and regional governments. In Germany, a

classic practice of autonomy is displayed by the regional governments when they

collaborate to pursue their economic agendas and fiscal policies as opposed to the

dictates of the federal government. This is reinforced by party politics who

jockey for particular policies and civil servants who ensure cooperation among

the different regional governments (Benz).

The same is true in U.S. practices, regional governors actively lobby for

the handling of economic load burdened upon them from the federal government

in Washington (Schram, 2005). A good example is the state support for Personal

Responsibility and Work Opportunity Reconciliation Act (1996) which replaced

the federal cash assistance program for low-income families with children (Aid to

Families with Dependent Children – AFDC) with Temporary Assistance for

Needy Families Program (TANF). This legislation granted states more leeway on

how to spend their budget in terms of social welfare, since it is the states and not


Washington who are actually implementing such programs and it is they who

know the situation in their respective jurisdictions (Schram).

These actual scenarios show the exercise of economic rights and powers

by regional governments. A situation made possible in the system through

federalism. Through it, such rights and powers are enforced constitutionally.

In the Philippines, there is great economic disparity among the regions.

As evidenced by statistical data from both international sources (CIA as shown in

Table 5) and from the Philippine National Statistics Office, regarding the income

and savings of families within each region (Table 6). The figures show the

microeconomic status for families within each region – comparing such data

between the regions themselves and a view of the macroeconomic aspect can be

observed. Through this, a comparison is seen on how the regions differ on

economic status in the current unitary political system.

The data shows an imbalance between the National Capital Region

(NCR), which is the center of everything (government, economy, education,

health, technology) in the Philippine unitary system, and the other regions. There

is a big difference in income and definitely in savings between the NCR and the

next region with the highest income and savings (Calabarzon in all three periods).

The statistics of the Standard Deviation show how distant the values are from the

average income and savings and the particular regional values for the same

economic values. All other regions together, excluding NCR, has a Standard

Deviation that is nearly half the value if NCR is included in the computation.


This method of statistical analysis proves the significant inequality or

disproportion between the values in the income and savings for the NCR and the

other regions.

The unitary system, however it promotes autonomy in letter, still

maintains by its nature and practice, a system of dependence by the local

governments to the central government. Manila, in the heart of NCR is the

economic capital with only a few scattered cities able to prosper financially and

technologically. The local governments are reliant in policymaking and

administration upon the central government regarding aspects of life that are

related to and which support the economy. These include healthcare (1987

Philippine Constitution, Article XIII, Sections 11 – 13), education and technology

(Article XIV), and land and natural resources (Article XII).

Federalism applied to the Philippines helps manage this problem in the

economy. The federal covenant curbs power from the central government by

making it a federal government whose purpose is to oversee and maintain unity

rather than interfere in the affairs within each region (e.g. economy, education,

health among others among others). Having a set of individual regional

governments with legislative and administrative powers over such aspects of

human life stimulates competition. The autonomy of regional governments is

closely linked to economic forces40 unique to the federal system.

40 Similar to Adam Smith’s invisible hand..


These economic forces include a) choices by regional governments of

policies that attract capital, labor and economic activity; and b) choices by

citizens and consumers about which regions to reside or establish a business,

considering policies which satisfy their own entrepreneurial interests (Weingast,

1995). Autonomous choices are the products of deconcentration of economic

forces from a central government. Instead of all the major businesses converging

at a single region or just a few regions, fiscal activity is stimulated among the

regions so that each region itself becomes economically competitive.

C. Simulation:

Through the gathered data, federalism can be applied by following the

seven essential features. Instead of having a unitary system with local

government units reliant to the central government, the Philippines can have two

levels of government. The first level is the national level government which is a

federal government. The second level of government is the regional level either

to be named as Provinces or States. An example would be: Province or State or

Cordillera, Province or State of Ilocos, Province or State of Cagayan Valley.

Both levels exercise powers that are constitutionally granted upon them.

The Philippine Federal Government will have jurisdiction to administer and

legislate over matters of national concern such as foreign affairs, national defense

and the military, currency, national economy, along with other powers discussed

in Section A of this Chapter. The Philippine Provincial government will have

powers to administer and legislate over matters of immediate concern to their area


of jurisdiction. Such powers include among others, healthcare, education, use of

natural resources and taxation.

The executive and legislative officials of the federal government of the

Philippines will be directly elected by every citizen eligible for suffrage from the

whole country. Officials of the regional governments (both executive and

legislative) will be directly elected by citizens eligible for suffrage from within

the particular region. Sources of revenue will be constitutionally allocated for the

federal government and for each component of the regional level governments.

Direct election by all voting citizens across the Republic stabilizes the

power of the Philippine Federal Government. It reinforces the single sovereign

power of the Republic; moreover it creates actual popular support for its exercise

of constitutionally delegated powers.

The Supreme Court remains as a single umpire whose powers are based on

the constitution to rule over cases between 1) the two levels of government (the

Philippine Federal Government and a province/state), and 2) between components

of the regional level (cases between one province/state and another

province/state).

Hence each province/state such as Caraga or Mimaropa could sue any of

the other regions for issues of constitutional or economic controversies. The same

applies to situations of controversies between the provinces/states against the

Philippine Federal Government. In this system, the federal government will be


constrained to ensure fairness in managing national affairs with respect to the

regions.

The Justices of the Supreme Court will be constitutionally protected in

areas of their appointment, salaries, and possible removal. This is to ensure free

and fair justice system among the governments. The Supreme Courts will have

lower courts distributed throughout the various regions to hear cases both civil

and criminal between individual persons.

To ensure a smooth flow of the political system, processes and institutions

could be made to coordinate among the various governments. These include

meetings and conferences of Provincial/State executives, the bureaucracy that

permeates the national and the regional levels, actions of the national branches of

the government, and initiatives of the executive and legislative branches of the

regional governments.

In this scenario, the provinces/states can make initiatives for their own

economic development and decisions on legislations that affect the cultural

heritage of their regions. Provinces/state governments can create legislations that

are attractive to businesses both local and foreign to bring in investments into

their regions. Revenues received directly by the provinces from their own tax

sources within their region can be directly used towards the projects that their

regions need.

A federal system empowers the Philippine regions with executive and

legislative governments to pursue agenda’s for their economic development.


Through this a sense of competition stimulates further needs to gain investments

and attract possible sources of economic capital into their respective regions.

And local government officials become more accountable to their

constituents. This is so because the provincial/state executive and legislators are

directly elected by them and are situated within the same region. Comparatively,

in the unitary system, people in Caraga Region or even Eastern Visayas Region

will find it is more difficult to hold accountable a national executive who is in

Malacañang (Manila, National Capital Region).

The federal government on the other hand is responsible over matters of

national concern. The encumbrance of managing the entire scattered islands is

lessened, instead it can focus on general administration to ensure balance

development, and smooth flow of government public service to the citizens

among the regions.

Aside from handling foreign affairs, the Philippine Federal Government

takes actions to help regional governments in times of crisis. This similar to the

U.S. President directing the military and other resources during Hurricane Katrina

and during the 9/11 attack, the Philippine President also performs such duties in a

federal system.

.


CHAPTER V

SUMMARY AND CONCLUSION

A. Summary

A particular country’s political system is defined through its basic law –

the constitution, which is the modern manifestation of the social contract. This

law, in order to be good, must promote the happiness of the people in every

dimension of life. Such a goal includes granting the means to afford for oneself

not just necessities but the chances or abilities to pursue further development: 1)

liberty and 2) prosperity. Political Science research has the objective of

discovering ways to build up the political system towards such an ideal objective;

it also has the duty to ensure that the system is built up by cementing national

unity and securing territorial integrity.

United States of America (founded 1776), Canada (founded 1867),

Australia (founded 1901), and Germany (founded 1949) are model countries in

the theory and practice of federalism. More importantly, these countries are

exemplars in championing liberal democratic ideals and economic development.

All four countries enjoy the blessings of liberty and economic

productivity. They are all members of the G20, and three of them, namely, U.S.,

Canada, and Germany, are ranked leaders of the prestigious G8. They are all

industrialized, economically competitive, and have their territories enjoying the

benefits of equal chances of development.


U.S., Canada, and Australia on the other hand each have very large

expanse of territory occupied by a variety of ethnic groups. The wide array of

cultural diversity has a propensity for a local culture of regionalism. Through the

constitutional use and actual practice of a federal convention, these countries were

able to successfully manage issues of regionalism, cultural idiosyncrasies,

equality both in governance and economy while maintaining the unity of their

territory as one country.

Federalism as a political theory has been founded and successfully

practiced by the United States for over two centuries. Currently the Forum of

Federations (an international, non-governmental, scholarly organization engaged

in the study of federalism) lists 24 federations spread across the globe41. Scholars

in political science, public administration, law, and economics have made

substantial research on federalism’s merits and flaws, its advantages and

disadvantages.

These scholars range from the great political thinkers such as John Locke

and Jean Jacques Rousseau who laid basic foundations of liberalization and the

social contract idea of federalism. There is the compiled writing of the founding

fathers such as Alexander Hamilton, John Jay, and James Madison which codified

the political thought of the American innovation of federalism. And in

contemporary political science, researchers and political scientists such as Daniel

41 There are also countries in transition to federalism: Iraq and Sudan. And a Sri lanka is considering to change into a federal system.


J. Elazar, and Vincent Ostrom and William Riker contributed comparative studies

on the applications of federalism.

Together, their works contribute to the body of political knowledge on

federal political theory. These include the capacity of federations to 1) improve

or build up a better structure for the state; 2) improve or manage the socio-

political conditions of heterogeneous systems or stratified territories; 3) improve

or manage the economy of states,

From the collated literature, experiences from the most successful of these

countries detail processes and benefits that could be reaped by the Philippines

from the use of a federal convention. This study though used a comparative

analysis of written constitutions of model countries by using a logical method

patterned from the tradition of John Stuart Mill, and in the modern constitional-

structuralist research method of Professors Zachary Elkins, Tom Ginsburg, and

James Melton. Theory is further supported through comparative observed42 practices

of institutions and processes within each of the four model governments. Thereby the

research was able to prove the concept and potentialities of a federal convention.

As presented and discussed in Chapter IV, a federal convention is defined

by seven (7) essential features. These are: 1) Two levels of government existing

in their own right under one constitution. 2) A Central Government directly

elected by the electorate of the whole country, making laws and taxation

42 Through secondary data – writings of experts who were from the model countries, books, seminar manuscripts and presentations.


applicable to all citizens. 3) Regional Government Units exercising

constitutionally delegated powers over its members. 4) Allocation of sources of

revenue between the two levels of government. 5) A written constitution as a

binding contract among regional units, and which cannot be amended unilaterally.

6) An umpire (Supreme/Constitutional Court) to rule on disputes. And 7)

Processes and Institutions that facilitate intergovernmental interaction and

coordination.

The Philippines is an archipelagic country characterized by local

governments dependent to the central government, regionalism, cultural

idiosyncrasies, and economic disparities. A federal convention, with proven

effectiveness in the model countries can help solve such issues that fall under

political geography, political culture, and political economy.

Potential applications of a federal convention in the Philippines include: 1)

Decentralization of legislative and administrative powers into two levels of

government through constitutional devolution; 2) consolidation of the fragmented

regions through devolution of legislative and administrative powers; 3)

management of regionalism and cultural idiosyncrasies through federal

accommodation; and 4) stimulation of development and managing regional

wealth disparities through deconcentration of economic forces.


B. Conclusion

Through meticulous comparison and analysis of the written constitutions,

geography, local regional culture, and economy of the United states of America,

Canada, Australia, and Germany, and by correlating the initial findings with

geographic, cultural and economic characteristics of the Philippines in order to

arrive at a refined practicable data, the researcher puts forward the thesis that:

federalism principles of decentralization and de-concentration are important

constitutional concepts that may be applied by the Republic of the Philippines as

supported by the following sub-conclusions;

1. A federal system of government could promote liberal democracy

through applications of the essential features of a federal convention,

these include:

a. Existence under a single constitution of two levels of

government (1st Essential Feature).

b. Each level of government is directly elected (2nd Essential

Feature).

c. The competence and powers of regional units are granted

directly by the constitution to each jurisdiction (3rd and 5th

Essential Feature).


2. A federal system of government could create equal opportunities for

regional economic development through applications of the essential

features of a federal convention, these include:

a. The regional government units exercising constitutionally

delegated powers over their own area of jurisdiction (3rd and 5th

Essential Feature).

b. Allocation of sources of revenue between the two levels of

government (4th Essential Feature).

3. A federal system of government could help enhance national unity

through applications of the essential features of a federal convention.

These include:

a. A directly elected central government whose Laws and Taxes

are applicable both to areas of competency and territory and

accepted by all citizens (2nd Essential Feature).

b. A written constitution acts as a social contract (5th Essential

Feature).

c. An independent ‘umpire’ (Supreme Court) rules over disputes

(6th Essential Feature).

d. Processes and institutions facilitate intergovernmental

interaction and coordination (7th Essential Feature).


4. The seven essential features of a federal system, as evidenced by the

practices in the model countries, would make federalism an

appropriate system of government for the Republic of the

Philippines; also the following applications of a federal system make

it appropriate to meet political challenges faced by the country:

a. The Philippines is an archipelago, composed of 7,100 islands

across seventeen (17) regions. A federal constitution would

help consolidate geopolitical territory through constitutional

devolution of legislative, executive and judicial (lower court)

powers, thus holding the territory together.

b. The Philippine socio-political environment is characterized by

a variety of cultural idiosyncrasies not to mention ethnic

groups and aboriginals. A federal constitution would help

accommodate such idiosyncrasies within the socio-political

environment, through the constitutional social contract that

decentralizes governmental power, thus enhancing regional

development and minimizing regionalism. And,

c. The Philippines is beset by economic disparities among the

regions. A federal constitution would de-concentrate

economic forces through local government autonomy and


competition by area, thus stimulating chances for a more

balanced regional wealth.

C. Recommendations

In the scholarly practice of political science, there is much debate on the

merits and flaws of federalism. Through unbiased scientific inquiry, this study

was able to posit on federalisms virtues as a potential source of socio-political and

economic benefits in application to the Republic of the Philippines. However, as

scientists concerned with the art of state building, this researcher suggests the

following recommendations on the application of federalism with relation to the

Philippines:

First is that objective research can be made on the knowledge and

perceptions of Philippine citizens regarding federalism and its seven essential

features. Given that the features of the federal convention can bring about

advantages to the Philippine political system. Such changes in a country’s

constitution cannot simply be impinged upon the people. If the people have

insufficient knowledge about how to use a particular tool, then it would not be

used efficiently or not even work properly at all. It is by fact the people who

would be living a life under a new constitution. Hence it is imperative that their

reception to such changes in their basic law be taken into consideration.

Second, there must be an assessment on the capabilities of citizens of the

inhabitants of each Philippine region to work as member of a single State within a


federation. Aside from this, assessment must also check for capabilities of these

regions to field state governors, or regional leaders.

If administration and legislation for the regions as states will be placed in

the hands of citizens from those particular areas of jurisdiction, then these

possible leader candidates must be skilled enough to handle the particular duties

involved. There must be ways for sufficient training available for these leaders.

Aside from skill, there must be willingness among the citizens of the regions to

take responsibility over the duties of running a state government within a

federation (in conjunction with the first recommendation).

The previous two recommendations together constitute an analysis for the

suitability of the Philippine Republic to practice federalism. As this research was

able to discover federalism’s potential benefits in application to the Philippines,

it is imperative to discover if the people could adapt to such a change in order to

best achieve the possible advantages.

Lastly, there is much debate on Philippine federalization. Politicians push

for or fight against the implementation of federalism in the Philippines. This

research begun and was conducted with the limitation of non-advocacy for any

policy for Philippine Charter Change. It proceeded according to the objective

method of collating federal principles in model countries from the firsthand

source – the Constitution. Analysis was made on how such principles are

practiced based on scholars’ descriptive narratives of government actions, and

political achievements in model countries.


Model federal countries have similar constitutional principles that are the

keys to bring about consolidation of territory, accommodation of cultural

idiosyncrasies, and stimulation of regional economic development. The

Philippines have characteristic problems such as fragmented territory,

homogenous socio-political cultures, and disparate economic wealth among the

regions. As evidenced in both Chapter I and further comparative discussions in

Chapter IV, the current unitary system as contained in the constitution is unable to

deal with such political, social, and economic situations.

Based on the findings, federalization could be recommended to be applied

in the Republic of the Philippines. Through the efficient practice of such a system

of government, a) the archipelago’s territorial integrity could be consolidated, b)

its regionalism minimized, c) cultural idiosyncrasies accommodated, and d)

economic forces could be stimulated to balance disparate wealth distribution

throughout the regions.

This research’s scholarly findings are recommended that they may be used

as basis for practical applications of federalism in the Republic of the Philippines.

It can be complemented by future directives as proposed above. A sound plan of

action can be made which could build the country into a more democratic,

regionally fair, territorially integrated, and economically developed state.

Through the gathering of facts and objective findings, this research could be used

for further studies in the search for the best concrete, detailed and


factual applications of a federal system adapted to political, administrative, social,

and economic condition of the XXI century Philippines.


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---. “Canada map – Canada Satellite Image.” Geology.com website. 2006.

http://geology.com/world/canada-satellite-image.shtml. (Last Accessed

October 2010).

---. “United States Map – United States Satellite Image.” Geology.com website.

2006. http://geology.com/world/the-united-states-of-america-satellite-

image.shtml. (Last Accessed October 2010).

Map of Germany.org. “Map of Germany.” Map of Germany.org website. 2008.

http://www.map-of-germany.org/map-of-germany.gif. (Last Accessed

October 2010).

Wow Philippines. “Provincial Map of the Philippines.” Go Package Tourism

website. 2010. http://www.go-

package.com/wowphilippines/philippine_map.asp. (Last Accessed

October 2010).

6. Flags:


United States of America Central Intelligence Agency. “Australia.” The CIA

World Factbook. 2010. https://www.cia.gov/library/publications/the-

world-factbook/flags/flagtemplate_as.html

---. “Canada.” The CIA World Factbook. 2010.

https://www.cia.gov/library/publications/the-world-

factbook/flags/flagtemplate_ca.html

---. “Germany.” The CIA World Factbook. 2010.


factbook/flags/flagtemplate_gm.html

---. “Philippines.” The CIA World Factbook. 2010.


factbook/flags/flagtemplate_rp.html

---. “United States of America." The CIA World Factbook. 2010.


factbook/flags/flagtemplate_us.html

7. Websites:

Arellano Law Foundation. Philippine Laws and Jurisprudence Databank.

http://www.lawphil.net/consti/. (Accessed 2010).

Elkins, Zachary, Tom Ginsburg, and James Melton. The Comparative

Constitutions Project: A Cross-National Historical Dataset of Written

Constitutions. University of Illinois, Illinois. 2008


United States of America Central Intelligence Agency. “Australia.” In The CIA

World Factbook, 2010. https://www.cia.gov/library/publications/the-

world-factbook/geos/as.html. (Last Accessed August 2010).

---. “Canada.” In The CIA World Factbook. 2006.

https://www.cia.gov/library/publications/the-world-factbook/geos/ca.html.

(Last Accessed August 2010).

---. “Germany.” In The CIA World Factbook. 2006.


factbook/geos/gm.html. (Last Accessed August 2010).

---. “Philippines.” In The CIA World Factbook. 2006.

https://www.cia.gov/library/publications/the-world-factbook/geos/rp.html.


---. “United States of America.” In The CIA World Factbook. 2006.

https://www.cia.gov/library/publications/the-world-factbook/geos/us.html.


German Bundestag. “English Translation of the German Federal Republic

Constitution,”

http://www.bundestag.de/htdocs_e/parliament/function/legal/germanbasicl

aw.pdf, 2001, (Berlin: German Bundestag, Administration, Public

Relations Section), (Accessed 2010).

National Statistics Office. 2003 Family Income and Expenditure Survey Final

Results. In National Statistics Office website. September 14, 2007.


http://www.census.gov.ph/data/sectordata/2003/ie03fr11.htm. (Accessed

October 2010).

---. 2003 and 2006 Family Income and Expenditure Survey, Final Results. In

National Statistics website. July 9, 2008.

http://www.census.gov.ph/data/sectordata/2006/ie06fr04a.htm. (Accessed

October 2010).

The Forum of Federations Organization. “Federalism by Country.” The Forum

of Federations. 2007.

http://www.forumfed.org/en/federalism/by_country/index.php (accessed

2009).

United Nations. United Nations Press Release ORG 1469.

http://www.un.org/News/Press/docs/2006/org1469.doc.htm. July 2006.

New York: United Nations, (Accessed 2010).


APPENDIX

Comparative Matrices of

Significantly Related Constitutional Provisions in the

Model Countries

Matrix 1.

Component/Member States/Provinces/Lander in the Constitution

Listing/Naming/Recognition

U.S. (1776) Canada (1867) Australia (1901) Germany (1949)

States Represented at the Signing - New Hampshire, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia.

Section 5. - Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick (Canada now consists of ten provinces (Ontario, Quebec, Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, Alberta, Saskatchewan and Newfoundland) and two territories (the Yukon Territory and the Northwest Territories). Section 22. – (allocation of Senate seats according to the Divisions and Provinces of each division).

Section 26. (Par. 2) - Provided that if Western Australia is an Original State, the numbers shall be as follows: New South Wales (twenty-six); Victoria (twenty-three); Queensland (nine); South Australia (seven); Western Australia (five); Tasmania (five).

Preamble - Germans in the Länder of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg- Western Pomerania, North Rhine-Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people.

Admission or Creation of New States/Provinces/Lander

Article IV. Section 3. - New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the

Section 146. - It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, on Addresses from the Houses of the Parliament of Canada, and from the

Section 121. - New States may be admitted or established The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or

Article 29. Section 3. - The referendum shall be held in the Länder from whose territories or parts of territories a new Land or a Land with redefined boundaries is to be established (affected Länder). The


Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert’s Land and the North-western Territory, or either of them, into the Union, on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act; and the Provisions of any Order in Council in that Behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland.

impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit. 122. - The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

question to be voted on is whether the affected Länder are to remain as they are or whether the new Land or the Land with redefined boundaries should be established. The proposal to establish a new Land or a Land with redefined boundaries shall take effect if the change is approved by a majority in the future territory of such Land and by a majority in the territories or parts of territories of an affected Land taken together whose affiliation with a Land is to be changed in the same way. The proposal shall not take effect if within the territory of any of the affected Länder a majority reject the change; however, such rejection shall be of no consequence if in any part of the territory whose affiliation with the affected Land is to be changed a two thirds majority approves the change, unless it is rejected by a two thirds majority in the territory of the affected Land as a whole.

Matrix 2.

The Chief Executive


Manner of Choosing

Article II, Section 1. - Article 54, Paragraph


Elected by Electors appointed by each State. The number of Electors is equal to the whole number of Senators and Representatives to which the State may be entitled to in Congress. The Electors meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State as themselves. The person having the greatest number of votes, if sch number be a Majority of the whole number of electors, shall be the President of the U.S. Amendment XII (1804). - Modifies the manner of voting: Electors must name who they were voting for as President and as Vice-President. Amendment XXIII (1961). Section 1. – (procedure granting the district which is the Seat of Federal Government electors for the President and Vice-President.)

1. - The Federal President shall be elected by the federal Convention without debate. Article 54, Paragraph 3. - The Federal Convention shall consist of the Members of the Bundestag and an equal number of members elected by the parliaments of the Länder on the basis of proportional representation. Article 62. - 63. - The Federal Chancellor shall be elected by the Bundestag without debate on the Proposal of the Federal President.

Matrix 3.

Composition, Manner of Choosing Members, and Purpose of the Federal Legislature


Upper House

Article I, Section 1. - Two Senators from each State, chosen by the Legislature

Section 22. - Consists of Senators equally representing the four Divisions of Canada:

Section 1. - Until Parliament otherwise provides, there shall be six senators for

Article 51. - 1. The Bundesrat shall consist of members of the Land


thereof.

Ontario, Quebec, The Maritime Provinces, and The Western Provinces (24 each). (The distribution of 24 Senators for the clustered maritime provinces and Western Provinces in the division are stipulated in Section 22.) Section 23. - The Qualifications of a Senator shall be as follows: (2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union: (5) He shall be resident in the Province for which he is appointed:

each original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. - Chapter I.

governments, which appoint and recall them. Other members of those governments may serve as alternates. 2. Each Land shall have at least three votes; Länder with more than two million inhabitants shall have four, Länder with more than six million inhabitants five, and Länder with more than seven million inhabitants six votes. 3. Each Land may appoint as many members as it has votes. The votes of each Land may be cast only as a unit and only by Members present or their alternates.

Lower House

Article I, Section 2. - Composed of Members chosen by the people of the several States. The electors in each State shall have the qualifications requisite for Electors of the most numerous branch of the State Legislature.

Sections 37, 40, 41, 50, 51, 51A, and 52. - Composed of members representing electoral districts within the provinces through proportionate representation. (The manner of determining the number of members per district/province is

Section 24. - Composed of members directly chosen by the people of the Commonwealth. The number of members chosen in the several States shall be in proportion to the respective numbers of their people. [the

Article 38. - Members of the German Bundestag shall be elected in general, direct, free, equal, and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to


Representatives shall be apportioned among the several States which may be included within this Union, according to their respective numbers (of people). Amendment XIV (1868). Section 2. - Manner of determining the respective numbers of each State, which excludes Indians not taxed.

stipulated in Sections 37, 40, 51, 51A, and 52.)

determination of such number of members per State is provided in subsections (i) and (ii) of this section]

their conscience.

Matrix 4.

Powers of the Federal Legislatures


Taxation

Article I, Section 8, Paragraph 1. - The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Section 91, Subsection 3. the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 3. The raising of Money by any Mode or System of Taxation.

Section 51, Subsection (ii). - The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (ii) taxation; but so as not to discriminate between States or parts of States;

Article 105, Paragraph 1. - The Federation shall have exclusive power to legislate with respect to customs duties and fiscal monopolies. (Guide for concurrent powers over taxation Articles 72, 105, and 106.)

Federal Control Over Militia

Article I, Section 8, Paragraphs 1, - … provide for the common Defence and general Welfare of the United States; Article I, Section 8, Paragraph 12, - To raise and support

Section 91, Subsection 7. - Militia, Military and Naval Service, and Defence.

Section 51, Subsection (vi). - the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

Article 73, Paragraph 1. - The Federation shall have exclusive power to legislate with respect to: Foreign affairs and defense, including protection of the civilian population;


Armies, but; Paragraph 13. - To provide and maintain a Navy;

Prohibition Against Local Control Over the Militia

Article I, Section 10, Paragraph 3. - No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Section 114. - States may not raise forces. Taxation of property of Commonwealth or State A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force.

Manage Currency

Article I, Section 8, Paragraph 5. - To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

Section 91, Subsection 14. - Currency and Coinage.

Section 51, Subsection (xii). - currency, coinage, and legal tender;

Article 73, Paragraph 4. - Currency, money, and coinage, weights and measures, and the determination of standards of time;

Borrow Money for the Federation

Article I, Section 8, Paragraph 2 - To borrow Money on the credit of the United States;

Section 92, Subsection 4. - The borrowing of Money on the Public Credit.

Section 51, Subsection (iv). - borrowing money on the public credit of the Commonwealth;

Article 115. - 1. The borrowing of funds and the assumption of surety obligations, guarantees, or other commitments that may lead to expenditures in future fiscal years shall require authorization by a federal law.

Postal Service and Communication

Article I, Section 8, Paragraph 7. - To establish Post Offices and post Roads;

Section 91, Subsection 5. - Postal Service.

Section 51, Subsection (v). - postal, telegraphic, telephonic, and other like services;

Article 73, Paragraph 7. - Postal and telecommunication services;

Rails and Navigation to Link the Federation


Section 91, Subsection 10. – Navigation and Shipping

Section 51. Subsection (xxxii). – the control of railways with respect to transport for the naval and military purposes of the Commonwealth; Section 98, - The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

Article 73, Paragraph 6a. - Federal Railways. And Article 74, Paragraph 21. – Navigation and Shipping. - The operation of railways wholly or predominantly owned by the Federation (federal railways), the construction, maintenance, and operation of tracks belonging to federal railways as well as the imposition of charges for the use of such tracks;

Matrix 5.

Preservation of Pre-existing Local Laws


Section 64. - The Constitution of the Executive Authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act. Section 88. - The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Act, continue as it exists at the Union until altered under the Authority of this Act.

Section 106. - The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State. Section 107. - Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or

Article 28. - Federal guarantee of Land constitutions and of local self-government 1. The constitutional order in the Länder must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county, and municipality the people shall be represented by a body chosen in general, direct, free, equal, and secret elections. In county and municipal elections, persons who possess citizenship in any member state of the European Community are also


Section 122. – The Customs and Excise Laws of each Province shall, subject to the Provisions of this Act, continue in force until altered by the Parliament of Canada. Section 129 - Except as otherwise provided by this Act, all Laws in force in Canada, Nova Scotia, or New Brunswick at the Union, and all Courts of Civil and Criminal Jurisdiction, and all legal Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished, or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the Authority of the Parliament or of that Legislature under this Act.

withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be. Section 108. - Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

eligible to vote and to be elected in accord with European Community law. In municipalities a local assembly may take the place of an elected body. 2. Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed. 3. The Federation shall guarantee that the constitutional order of the Länder conforms to the basic rights and to the provisions of paragraphs 1 and 2 of this Article.


Section 130. - Until the Parliament of Canada otherwise provides, all Officers of the several Provinces having Duties to discharge in relation to Matters other than those coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be Officers of Canada, and shall continue to discharge the Duties of their respective Offices under the same Liabilities, Responsibilities, and Penalties as if the Union had not been made.

Matrix 6.

Significant Powers of the Local Legislatures


Local Land, Asset, Property

Article IV, Section 3, Paragraph 1. - New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Section 109. - All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts

Section 85. - When any department of the public service of a State is transferred to the Commonwealth: (i) all property of the State of any kind, used exclusively in connection with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be

Article 134. - Reich assets 2. The assets of Länder or other public-law corporations or institutions that no longer exist, insofar as they were originally intended to be used principally for administrative tasks or are now being so used, not merely temporarily, shall pass to the Land, corporation, or institution that now performs those tasks. 3. Real property of


existing in respect thereof, and to any Interest other than that of the Province in the same. Section 117. - The several Provinces shall retain all their respective Public Property not otherwise disposed of in this Act, subject to the Right of Canada to assume any Lands or Public Property required for Fortifications or for the Defence of the Country.

necessary; (ii) the Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) the Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament; (iv) the Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.

Länder that no longer exist, including appurtenances, shall pass to the Land within which it is located, insofar as it is not among the assets already referred to in paragraph 1 of this Article. 4. Insofar as an overriding interest of the Federation or the particular interest of a region requires, a federal law may depart from the rules prescribed by paragraphs 1 to 3 of this Article. 5. In all other respects, the succession to and disposition of assets, insofar as it has not been effected before January 1, 1952 by agreement between the affected Länder or corporations or institutions established under public law, shall be regulated by a federal law requiring the consent of the Bundesrat. 6. Holdings of the former Land of Prussia in enterprises established under private law shall pass to the Federation. 7. Insofar as assets that on the effective date of this Basic Law would devolve upon a Land or a corporation or institution established under public law pursuant to paragraphs 1 to 3 of this Article have been


disposed of by or pursuant to a Land law or in any other manner by the party thus entitled, the transfer of assets shall be deemed to have taken place before such disposition.

Management and Sale of Land, Asset, Property

Section 92, Subsection 5. - In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.

Article 74, Paragraph 1, Subparagraph 15. - 1. Concurrent legislative powers shall extend to the following subjects: 15. The transfer of land, natural resources, and means of production to public ownership or other forms of public enterprise;

Agriculture

Undelegated43 Section 95. - In each Province the Legislature may make Laws in relation to Agriculture in the Province, and to Immigration into the Province; and it is hereby declared that the Parliament of Canada may from Time to Time make Laws in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any Law of the

Undelegated Article 74. Paragraph 17. - The promotion of agricultural production and forestry, ensuring the adequacy of the food supply, the importation and exportation of agricultural and forestry products, deep-sea and coastal fishing, and preservation of the coasts;

43 For those with undelegated please see Matrix 12 for Provisions handling Gray Areas..


Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada.

Education

Undelegated Section 93. - In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions:

Undelegated Article 74. Paragraph 13. - The regulation of educational and training grants and the promotion of research;

Direct Taxation

Exclusive to Federation

Section 92, Subsection 2. - Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes. Section 92, Subsection 9. - Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. Section 92A. - (1) In each province, the legislature may exclusively make laws in relation to (a) exploration for non-renewable natural resources in the province; (b) development, conservation and management of nonrenewable natural resources and

Exclusive to Federation

Article 105, Paragraph 2a. - The Länder shall have power to legislate with respect to local taxes on consumption and expenditures so long and insofar as they are not substantially similar to taxes imposed by a federal law. 106 Paragraph 2. - Revenue from the following taxes shall accrue to the Länder: 1. The property tax; 2. The inheritance tax; 3. The motor vehicle tax; 4. Such taxes on transactions as do not accrue to the Federation pursuant to paragraph 1 or jointly to the Federation and the Länder pursuant to paragraph 3 of this Article; 5. The beer tax; 6. The tax on


forestry resources in the province, including laws in relation to the rate of primary production therefrom; and (c) development, conservation and management of sites and facilities in the province for the generation and production of electrical energy. (2) In each province, the legislature may make laws in relation to the export from the province to another part of Canada of the primary production from non-renewable natural resources and forestry resources in the province and the production from facilities in the province for the generation of electrical energy, but such laws may not authorize or provide for discrimination in prices or in supplies exported to another part of Canada. (3) Nothing in subsection (2) derogates from the authority of Parliament to enact laws in relation to the matters referred to in that subsection and, where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict. (4) In each province, the legislature may

gambling establishments. Section 106, Paragraph 3. - Revenue from income taxes, corporation taxes, and turnover taxes shall accrue jointly to the Federation and the Länder (joint taxes) to the extent that the revenue from the income tax and the turnover tax is not allocated to municipalities pursuant to paragraphs 5 and 5a of this Article. The Federation and the Länder shall share equally the revenues from income taxes and corporation taxes. The respective shares of the Federation and the Länder in the revenue from the turnover tax shall be determined by a federal law requiring the consent of the Bundesrat. Such determination shall be based on the following principles: 1. The Federation and the Länder shall have an equal claim against current revenues to cover their necessary expenditures. The extent of such expenditures shall be determined with due regard to multi-year financial planning. 2. The financial requirements of the Federation and of the Länder shall be


make laws in relation to the raising of money by any mode or system of taxation in respect of (a) non-renewable natural resources and forestry resources in the province and the primary production therefrom, and (b) sites and facilities in the province for the generation of electrical energy and the production therefrom, whether or not such production is exported in whole or in part from the province, but such laws may not authorize or provide for taxation that differentiates between production exported to another part of Canada and production not exported from the province. (5) The expression “primary production” has the meaning assigned by the Sixth Schedule. (6) Nothing in subsections (1) to (5) derogates from any powers or rights that a legislature or government of a province had immediately before the coming into force of this section.

coordinated in such a way as to establish a fair balance, avoid excessive burdens on taxpayers, and ensure uniformity of living standards throughout the federal territory. In determining the respective shares of the Federation and the Länder in the revenue from the turnover tax, reductions in revenue incurred by the Länder from January 1, 1996 because of the provisions made with respect to children in the income tax law shall also be taken into account. 4. The respective shares of the Federation and the Länder in the revenue from the turnover tax shall be apportioned anew whenever the ratio of revenues to expenditures of the Federation becomes substantially different from that of the Länder; reductions in revenue that are taken into account in determining the respective shares of revenue from the turnover tax under the fifth sentence of paragraph 3 of this Article shall not be considered in this regard. If a federal law imposes additional expenditures on or withdraws revenue from the Länder, the additional burden may be compensated for by federal grants


pursuant to a federal law requiring the consent of the Bundesrat, provided the additional burden is limited to a short period of time. This law shall establish the principles for calculating such grants and distributing them among the Länder. 5. A share of the revenue from the income tax shall accrue to the municipalities, to be passed on by the Länder to their municipalities on the basis of the income taxes paid by their inhabitants. 5a. From and after January 1, 1998, a share of the revenue from the turnover tax shall accrue to the municipalities. It shall be passed on by the Länder to their municipalities on the basis of a formula reflecting geographical and economic factors. 6. Revenue from taxes on real property and trades shall accrue to the municipalities; revenue from local taxes on consumption and expenditures shall accrue to the municipalities or, as may be provided for by Land legislation, to associations of municipalities. Municipalities shall be authorized to establish the rates at


which taxes on real property and trades are levied, within the framework of the laws. If there are no municipalities in a Land, revenue from taxes on real property and trades as well as from local taxes on consumption and expenditures shall accrue to the Land. In accordance with Land legislation, taxes on real property and trades as well as the municipalities' share of revenue from the income tax and the turnover tax may be taken as a basis for calculating the amount of apportionment. 7. An overall percentage of the Land share of total revenue from joint taxes, to be determined by Land legislation, shall accrue to the municipalities or associations of municipalities. In all other respects Land legislation shall determine whether and to what extent revenue from Land taxes shall accrue to municipalities (associations of municipalities). 8. If in individual Länder or municipalities (associations of municipalities) the Federation requires special facilities to be established that directly result in an


increase of expenditure or in reductions in revenue (special burden) to these Länder or municipalities (associations of municipalities), the Federation shall grant the necessary compensation if and insofar as the Länder or municipalities (associations of municipalities) cannot reasonably be expected to bear the burden. In granting such compensation, due account shall be taken of indemnities paid by third parties and financial benefits accruing to these Länder or municipalities (associations of municipalities) as a result of the establishment of such facilities.

Matrix 7.

Federal Power over Foreign Affairs


Article 1, Section 8. The Congress shall have power to… regulate commerce with foreign nations Article 1, Section 10, Par. 3.. No State shall, without the Consent of Congress… enter into any agreement or compact with another state, or with a foreign power. Article 2, Section 3. [the president] shall receive Ambassadors

Section 132. The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries.

Section 51 (i). – Parliament shall have power to make laws for trade and commerce with other countries. Section 75 (i). Original Jurisdiction of the Hight Court in all matters arising from any treaty.

Article 32. - 1. Relations with foreign states shall be conducted by the Federation. 2. Before the conclusion of a treaty affecting the special circumstances of a Land, that Land shall be consulted in timely fashion. 3. Insofar as the Länder have power to legislate, they may conclude treaties with foreign states with the


and other public Ministers

consent of the Federal Government.

Matrix 8.

Local Judicial Authority


Article III, Section 2, Paragraph 3. - The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Article 80. - The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Matrix 9.

Delineation of Sources of Revenues


Consolidated Revenue Funds

Section 103 – The Consolidated Revenue Fund of Canada shall be permanently charged with the Costs, Charges, and Expenses incident to the Collection, Management, and Receipt thereof, and the same shall form the First Charge thereon, subject to be reviewed and audited in such Manner as shall be ordered by the Governor General in Council until the Parliament otherwise provides. Section 104. The

Section 81. - All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. Section 87, Paragraph 2. - The balance shall, in accordance with this Constitution, be paid to the several


annual Interest of the Public Debts of the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union shall form the Second Charge on the Consolidated Revenue Fund of Canada. Section 105. Unless altered by the Parliament of Canada, the Salary of the Governor General shall be Ten thousand Pounds Sterling Money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the Third Charge thereon. Section 106. Subject to the several Payments by this Act charged on the Consolidated Revenue Fund of Canada, the same shall be appropriated by the Parliament of Canada for the Public Service.

States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth. Section 105. - The Parliament may take over from the States their public debts, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. Section 3. - Salary of Governor-General payable out of the Consolidated Revenue fund Section 66. - Salaries of Ministers payable out of the Consolidated Revenue


Fund.

Prohibition on Preferences in Commerce Between States

Article I, Section 9, Paragraph 6. - No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

Section 99. - The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

Finance, Sources of Revenue: Federal Sources

Article I, Section 8. - The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Section 91, Subsection 3. - It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to

Section 51, Subsection (ii). - The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (ii) taxation; but so as not to discriminate between States or parts of States; Section 86. - On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth. Section 88. - Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth. Sections 81. – All

Article 105, Paragraph 1. - The Federation shall have exclusive power to legislate with respect to customs duties and fiscal monopolies. Article 105, Paragraph 2. - The Federation shall have concurrent power to legislate with respect to all other taxes the revenue from which accrues to it wholly or in part or as to which the conditions provided for in paragraph 2 of Article 72 apply. Article 106, Paragraph 1. - The yield of fiscal monopolies and the revenue from the following taxes shall accrue to the Federation: 1. Customs duties; 2. Taxes on consumption insofar as they do not accrue to the Länder pursuant to paragraph 2, or


say, 3. The raising of Money by any Mode or System of Taxation.

revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution. Section 82. - The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth. Sections 85 – 105A. – (other procedures allocations of funds.)

jointly to the Federation and the Länder in accordance with paragraph 3, or to municipalities in accordance with paragraph 6 of this Article; 3. The highway freight tax; 4. The taxes on capital transactions, insurance, and bills of exchange; 5. Nonrecurring levies on property and equalization of burdens levies; 6. Income and corporation surtaxes; 7. Levies imposed within the framework of the European Communities.

Finance, Sources of Revenue: Local/Direct Sources (See Matrix 6. – Direct Taxation)

Matrix 10.

Affirmation of the Union of the Federation


Preamble - We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general

Preamble - An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith Whereas the Provinces of Canada, Nova Scotia, and New

Preamble - Germans in the Länder of Baden-Württemberg, Bavaria, Berlin, Brandenburg, Bremen, Hamburg, Hesse, Lower Saxony, Mecklenburg- Western Pomerania, North Rhine-


Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America: Section 3. - It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act,

Westphalia, Rhineland-Palatinate, Saarland, Saxony, Saxony-Anhalt, Schleswig-Holstein, and Thuringia have achieved the unity and freedom of Germany in free self-determination. This Basic Law thus applies to the entire German people.


the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.

Matrix 11.

Constitution Amendment

Through the Federal Legislature

Article V. - The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the

Schedule B. Constitution Act (1982), Part V, Section 38, Subsection (1), (a). - An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons;

Section 128. - This Constitution shall not be altered except in the following manner: The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only

Article 79. - 1. This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an international treaty respecting a peace settlement, the preparation of a peace settlement, or the phasing out of an occupation regime, or designed to promote the defense of the Federal Republic, it shall be sufficient, for the purpose of making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to add language to the Basic Law that merely makes this clarification. 2. Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the Bundesrat.


Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent.

Through Initiative of a Certain Percent of the Local States or Provinces

Article V. (see above) Schedule B. Constitution Act (1982), Part V, Section 38, Subsection (1), (b). - An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

Matrix 12.

The Judicature


Independence Through Manner of Appointment

Article II, Section 2, Section 72, Article 94, Paragraph


Paragraph 2. – He (The President)44 shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court,

Subsection (i) - (ii). - The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

1. - The Federal Constitutional Court shall consist of federal judges and other members. Half the members of the Federal Constitutional Court shall be elected by the Bundestag and half by the Bundesrat. They may not be members of the Bundestag, of the Bundesrat, of the Federal Government, or of any of the corresponding bodies of a Land. Article 97, Paragraph 2. - Judges appointed permanently to full-time positions may be involuntarily dismissed, permanently or temporarily suspended, transferred, or retired before the expiration of their term of office only by virtue of judicial decision and only for the reasons and in the manner specified by the laws. The legislature may set age limits for the retirement of judges appointed for life. In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary.

Independence Through Protection of Salary

Article III, Section 1. Section 72, Article 97, Paragraph

44 Text in parentheses added by researcher.


- The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Subsection (iii). - (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office.

1. - Judges shall be independent and subject only to the law.

Powers as Adjudicators Between a Local State and another Local State; and Between a

Local State and the Federal State

Article III, Section 2, - The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases n which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before

Section 75, Subsection (iii) and (iv). - Original jurisdiction of High Court In all matters: (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State;

Article 93, Paragraph 1, Subparagraphs 2, 1. The Federal Constitutional Court shall rule: Subparagraphs 2, 2a, 3, 4, and 4b. – 2. In the event of disagreements or doubts respecting the formal or substantive compatibility of federal law or Land law with this Basic Law, or the compatibility of Land law with other federal law, on application of the Federal Government, of a Land government, or of one third of the Members of the Bundestag; 2a. In the event of disagreements whether a law meets the requirements of paragraph 2 of Article 72, on application of the Bundesrat or of the government or legislature of a Land; 3. In the event of disagreements respecting the rights and duties of the


mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Federation and the Länder, especially in the execution of federal law by the Länder and in the exercise of federal oversight; 4. On other disputes involving public law between the Federation and the Länder, between different Länder, or within a Land, unless there is recourse to another court; 4b. on constitutional complaints filed by municipalities or associations of municipalities on the ground that their right to self-government under Article 28 has been infringed by a law; in the case of infringement by a Land law, however, only if the law cannot be challenged in the constitutional court of the Land;

Matrix 12.

Provisions Handling Gray Areas


Amendment X (1791). - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Section 92, Subsection 16. - In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 16. Generally all Matters of a merely local or private Nature in the Province.

Section 107. - Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth,

Article 30. - Except as otherwise provided or permitted by this Basic Law, the exercise of state powers and the discharge of state functions is a matter for the Länder. Article 70, - 1. The Länder shall have the right to legislate insofar as this Basic Law does not confer


Section 91, paragraph immediately after Subsection 29. - It shall be lawful for the Queen, by and with the Advice and onsent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of

or as at the admission or establishment of the State, as the case may be. Section 108. - Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State. Section 109. - When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

legislative power on the Federation. 2. The division of authority between the Federation and the Länder shall be governed by the provisions of this Basic Law respecting exclusive and concurrent legislative powers. Article 71. - On matters within the exclusive legislative power of the Federation, the Länder shall have power to legislate only when and to the extent that they are expressly authorized to do so by a federal law. Article 72, - 1. On matters within the concurrent legislative power, the Länder shall have power to legislate so long as and to the extent that the Federation has not exercised its legislative power by enacting a law. 2. The Federation shall have the right to legislate on these matters if and to the extent that the establishment of equal living conditions throughout the federal territory or the maintenance of legal or economic unity renders federal regulation necessary in the national interest. 3. A federal law may provide that federal


Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

legislation that is no longer necessary within the meaning of paragraph 2 of this Article may be superseded by Land law. Article 105, (See Matrix 4. – Taxation; And Matrix 6. Finance, Sources of Revenue: Federal Sources Article 115c.- 1. The Federation shall have the right to legislate concurrently for a state of defense even with respect to matters within the legislative powers of the Länder. Such laws shall require the consent of the Bundesrat.


CURRICULUM VITAE

Ronald Maglaqui Castillo attended two Catholic

Institutions: Notre Dame of Greater Manila and the

Royal and Pontifical University of Santo Tomas. He was

awarded a Bachelor of Arts (Political Science) at the

college founded by the late President Jose P. Laurel –

Lyceum of the Philippines. And he achieved his Master

of Arts (Political Science) at the Graduate School of the University of Santo

Tomas.

He completed his practicum at the Philippine Senate among the Legislative

Committee Secretaries. As a Civil Servant (Career Service Professional) he has

served as Executive Staff to one of the Departments of Caloocan City

Government.

Currently, he teaches the following subjects, at La Consolacion College –

Caloocan: Philippine Constitution and History, Logic and Ethics, Research

Methodology and Statistics.

As a hobby, he successfully coached the Lyceum Debate Society for three

consecutive years, and was inducted to its Hall of Legends in March 2006. He

also was a judge on Asian Parliamentary Debate in national inter-collegiate


competitions, and was ranked among the Philippines top adjudicators at the

Philippine Daily Inquirer Inter-collegiate Debating Championship45.

45 “3rd Inquirer Inter-collegiate Debating Championship,” Quezon City: University of the Philippines. January 30 – February 3, 2004. “4th Inquirer Inter-collegiate Debating Championship,” Quezon City: University of the Philippines. February 26 – March 1, 2005.