FEDERALISM 101 LECTURE 2: Intergovernmental Relations and Rule of Law
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Here are the highlights of the second of academic lecture series on federalism at the House of Representatives, a joint undertaking of IAG and the Congressional Policy and Budget Research Department (CPBRD) of the House. A policy report on the proceedings will be issued in a separate publication.
Federalism 101 (Lecture 2): Intergovernmental Relations and the Rule of Law in Federal Systems
Wednesday, 10 August 2016 (9 a.m. to 3:00 p.m.)
Speaker Belmonte Hall, South Wing Annex, House of Representatives
Participants. A total of 302 participants attended this lecture on federalism: (a) 27 House Members; (b) 185 technical staff of House members, (c) 74 officials, committee secretaries and other members of the House Secretariat, and (d) 14 other guests.
Topics and Speakers. Fiveimportant topics on intergovernmental relations (IGR) and the Rule of Law were discussed:
a) Managing Federalism: From Transition to Fruition by Prof. Edmund Tayao, a political science professor of the University of Sto. Tomas and the Executive Director of the Local Government Development Foundation (LOGODEF);
b) Federalism and Intergovernmental Relations: The German Example by Mr. Benedikt Seemann, Country Representative of the Konrad Adenauer Foundation;
c) Intergovernmental Relations in Federal Systems: Issues and Options by Dr. Chetan Kumar, an expert on governance and constitutional processes in the context of peace building from the United Nations Development Program (UNDP);
d) Areas of Autonomy in Muslim Mindanao: Implication on Governance by Atty. Anwar A. Malang, former Regional DILG Secretary of the ARMM;
e) Intergovernmental Relations in Justice Administration and Policing in Federal Systems: Framework, Practices, Experiences, and Issues by Dean Pacifico Agabin, Representative of the Institute of Government and Law Reform, U.P. Law Center, and former Dean of the U.P. College of Law.
Dr. Romulo E.M. Miral, Jr., Director General of the Congressional Policy and Budget Research Department (CPBRD), gave the Opening and Closing Remarks, while Atty. Benedicto Bacani, Executive Director of the Institute for Autonomy and Governance, introduced the topics and speakers.
Key Ideas from the Lecture
The Importance of IGR
IGR in federal systems seeks to address critical issues such as:
(1) cross-border movements of goods, people and investments;
(2) differences in level of adherence by states to national priorities and legislation;
(3) alignment of standards on issues such as transport and government data;
(4) movement of security personnel and conduct of security operations across boundaries;
(5) transboundary sharing of water resources, fisheries, minerals, and natural wealth; and
(6) allocation to states or sub-national governments of core national income from resources such as oil or mineral wealth (Dr. Kumar).
Intergovernmental bodies facilitate coordination and alignment of standards and procedures among federal and state legislatures, courts, electoral commissions, and police institutions (Dr. Kumar).
Download Dr. Kumar's presentation here.
Dr. Miral underscored the importance of clearly defining the relationship between the different levels of government with their own powers and responsibilities as well as shared functions. He said that federalism is a possible solution to address problems in decentralization and regional autonomy.
Considerations in Structuring IGR
(a) A federal government that has broad powers, and state and local governments with specific powers; (b) coordination and collaboration among the different levels of government; (c) more significant and different roles of different levels of government (Prof. Tayao).
The dynamics of vertical and horizontal relationship between the federal and state governments Horizontal dynamicsrefers to the ways state governments relate to one another. Vertical dynamics refers to the divisions between a national government and sub-national/regional units. This can mean more powers to the sub-national entities (Prof. Tayao).
The allocation of resources and fiscal transfers given the distinct as well as shared responsibilities of different levels of government (Mr. Seemann).
Institutions Involved in IGR
Examples of institutions that mediate inter-governmental relations are as follows:
(1) state level commissions for trans-boundary issues and cooperation at state level;
(2) federal commissions for disputes between states or between federal and state governments, and to ensure alignment of standards across states;
(3) Senate (or a second chamber with state representation) to ensure buy-in by states into national priorities; and
(4) Supreme Court or constitutional courts to adjudicate disputes between states or between federal and state governments (Dr. Kumar).
IGR Practices and Experiences
Germany (Mr. Benedikt Seemann)
Download Mr. Seemann's presentation here.
◘There have always been separate German states/regions entities, but it actually took centuries of nation building before the German nation-state emerged. Federalism emerged as a natural option to ensure the survival and development of a German state constituted by separate German states.
◘The 16 Landers or federal states are not mere administrative units but real states. Each lander has its own separate constitution that defines a single state’s identity and legal set-up. Each has its own legislature and a parliamentary system of government.
◘The German constitution guarantees the sovereign powers of the Landers.
◘A very important instrument for IGR is the Bundescrat or the Federal Council), which is the upper chamber of the German national parliament. Through the Bundescrat, the states participate in legislation alongside with the Bundestag, the lower chamber which is the regular national parliament in Germany. However, fifty percent of laws passed by the Bundestag need the consent of the Federal Council.
◘Distribution of powers. The federal government has exclusive powers (e.g., national defense, foreign affairs, fiscal policy. The states are in charge of education, police, and roads (except federal highways). The joint functions include taxation, labor law, and agriculture.
◘Taxes. The richer states in Germany support the poorer states. The Federal government receives fifty percent (50%) of corporate taxes while the Landers get 50%. For value-added-tax (VAT) and sales tax, the Federal Government gets 53.9%, the states 44.1%, and the local government units 2%.
◘Instruments for cooperation. The 16 German states cooperate not only through the upper chamber of parliament, but also through “Lander Conferences” in such areas as education and culture. These conferences are commissions with informal set up having representatives from all 16 states. They serve as intergovernmental bodies for coordinating the policies of the 16 German states.
◘The Pros. German federalism has inclusive structures ensuring the participation and representation of its 16 states in national policymaking. It reflects social interests through strong national political parties and regional interests through the design of the 16 states.
◘The Cons. It has large and costly state bureaucracies that are parallel to national institutions. It fosters German “Uniformity” which is too cooperative, rather than competitive.
The ARMM’s experience in IGR (Atty. Malang)
Download Atty. Malang's presentation here.
◘Republic Act 9054 does not provide ARMM the full autonomy that it needs to effectively govern its constituent units. National government agencies like the Department of Budget and Management (DBM) supervise ARMM-LGUs as if there is no autonomous region. The regional government remains fiscally dependent on the National Government—i.e., it is treated as a regular line agency that has to defend its annual budget in Congress (Atty. Malang).
◘There are two governing laws in place as far as the ARMM-LGUs are concerned—i.e., the Organic Act and the Local Government Code of 1991. The latter did not exclude ARMM-LGUs from its coverage—hence, the national government maintains direct supervision over them like the rest of the LGUs nationwide (e.g., in the case of the IRA that ARMM-LGUs receive from NG, and nationally-funded public works projects) (Atty. Malang).
IGR in the administration of justice (Dean Agabin)
Download Dr. Agabin's presentation here.
◘In the United States, the federal Supreme Court is mandated to interpret the US Constitution, which is the framework for the country’s federal system. However, there are also state courts that render judgments based on their interpretations of various state constitutions. The state courts issue decisions interpreting in cases defining free speech, religious freedom, and the rights of the accused.
◘The “notwithstanding” clause in the US Constitution seeks to balance individual and collective rights, judicial and legislative supremacy, even at the provincial level. This clause is considered truly “federal”: it designates as the essence of politics an ongoing commitment to a negotiated compromise rather than to the final judicial adjudication of rights.
◘The “supremacy clause” of the US Constitution says that the state law is invalid if it is in conflict with federal laws. However, the state courts can make an independent interpretation of their respective state constitutions, and their court rulings are not subject to review by Federal Courts if these decisions are based on adequate and independent state grounds.
◘In the US, the final Judgements or decrees rendered by the state courts may be reviewed by the Federal Court (Supreme Court) on the grounds of being not in accordance with the Constitution and laws of the US.
◘State courts in the US interpret their constitutions to provide more protection for civil and political rights and these should be in accordance with the US Supreme Court’s interpretation of the Federal Constitution.
◘The “necessary and proper” clause of the federal constitution is used to sanction a wide interpretation of enumerated powers, while the “supremacy “clause (pre-emption doctrine) is used to set aside state laws when Congress decides to legislate.
◘In Canada, the decisions of the superior courts and courts of appeal are appealable to the Supreme Court of Canada. As a dominion colony of the United Kingdom (under the British North America Act of 1867), the decisions of the SCC are reviewable by the Judicial Committee of the Privy Council (JCPC) which advises the Crown on empire matters.
◘Canada has a hybrid (“mestizo”) federal system. The appointments, pay, and removal of the judges of the provincial courts are managed by the central government while the courthouses are administered and paid for by the provinces. Any changes in the institutional structure of the provincial courts may be initiated by provinces but would require the approval of the federal government for implementation.
◘The distinct powers between the national and regional governments in a federal system are the usual cause of disputes. Thus, there is a need for a Superior Power (Judiciary) that will define the relationship between two contending levels of government.
Some Issues in IGR
The following are issues resulting from the current policy or practice in the ARMM (Atty. Malang):
(1) The President exercises general supervision over the regional governor; however, the intergovernmental Oversight Committee (as provided in RA 9054) is not functioning.
(2) ARMM has limited program funds. Regional autonomy is not guaranteed because it has to defend in Congress its budget as part of the National Budget; and
(3) Weak supervision over ARMM-LGUs because local budgets are regulated through DBM policies and local treasurers are supervised by the DOG-BLGF.
◘Will the Supreme Court remain the arbiter of jurisdictional disputes between the central and regional government? (Dean Agabin)
Options to Examine or Consider in Structuring IGR in Federal Systems
◘a) Look at existing models but go beyond them to come up with an appropriate federal system for the country; b) learn from the country’s decentralization experience; c) ensure coordination and complementation between different and same levels of government (Prof. Tayao).
◘Confront the key challenges in setting up a federal government: a) the cost of shifting to a federal system; b) transition mechanisms in power sharing and management of resources; c) political dynasties; d) organizing and running a federal government (Prof. Tayao).
◘Examine the following options: 1) shift to a parliamentary system first and provide mechanisms and processes for state-formation (e.g., start with the Cordillera and Bangsamoro Autonomous Regions); 2) a Second Chamber of Parliament that represents the states/regions; 3) revisit the whole system of taxation; and 4) empower states to develop their economic and trade base (Prof. Tayao).
Download Prof. Tayao's presentation here.
◘a) Complete the devolution of powers of national government agencies overseeing and regulating LGUs; b) empower ARMM to prioritize, allocate, and utilize its available resources, c) ensure clear partnership and coordination mechanism to effectively implement policies by the national and regional governments; d) improve transportation and communication systems in the region; and (5) strengthen government structure of the ARMM to make it functional and responsive (Atty. Malang).
The following questions, concerns and issues were raised:
Design of federal system
◘Is the federal-presidential or federal-parliamentary system more appropriate for the Philippines?
◘What set up of federal government is most appropriate for the Philippines?
◘Is the Bangsamoro a good set up for a state government in federal Philippines?
◘Will it be proper to perfect devolution first before shifting to a federal system?
◘If we shift to Federalism, will the autonomous regions be effective under a strong President?
Capacity of state governments
◘How will state governments provide funding for infrastructure projects (e.g., water systems)?
Implementation of national policy
◘How will a federal governmental system address issues on land reform and capital punishment?
Secession of states
◘How can a federal system guarantee that states will not secede from the Republic?
Effects of federal system
◘Does a federal system promote political dynasties?
◘Does a federal system guarantee better checks and balances on governmental power?
◘What are the countries that shifted to federalism and that failed in that exercise?
◘How was the ARMM experience in the area of policing?
◘What happens to laws during the transition from a unitary to a federal form of government?
◘Are there countries that reverted back to a unitary system after shifting to federalism?
◘Will federalism develop underdeveloped regions in the country?
◘What are the benefits of federalism that we cannot get from the present presidential unitary structure?