• Death and taxes and federalism

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    Benjamin Franklin, in 1789, once famously said: “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”

    This article will ponder upon the question of death and federalism; taxes will be taken up in later articles.

    The Philippines became the first Asian country to abolish death penalty for all crimes. The 1987 Freedom Constitution promulgates that all death sentences be reduced to reclusion perpetua or life imprisonment.

    Yet with the President-elect Duterte’s platform to eradicate crime and corruption in three to six months, and given a supermajority in the House of Congress, capital punishment will soon return to the country.

    Under the present unitary form of government in the Philippines, Congress is responsible for making enabling laws to make sure the spirit of the Constitution is upheld. In order to craft laws, the legislative body comes out with two main documents: bills and resolutions. Resolutions convey principles and sentiments of the Senate or the House of Representatives while Bills are laws in the making. They pass into law when they are approved by both Houses and with the imprimatur of the President of the Philippines, and, thus, become Republic Acts <http://www.gov.ph/about/gov/the-legislative-branch/>.

    On Dec. 1993, the Ramos administration re-imposed the death penalty by virtue of Republic Act No. 7659 to address the rising criminality and incidence of heinous crimes. PCIJ.org writes the Death Penalty Law lists a total of 46 crimes punishable by death; 25 of these are death mandatory while 21 are death eligible.

    Further, Republic Act No. 8177 mandated that a death sentence shall be carried out through lethal injection. This was further followed by the Estrada administration but, eventually, he issued a de facto moratorium on executions in the face of Church-led campaigns to abolish the death penalty and in observance of the Jubilee Year. Subsequently, President Arroyo publicly stated that she is not in favor of executions <www.pcij.org>.

    The Philippines under a unitary presidential structure makes all laws general for all people. The death penalty for heinous crimes, if passed by Congress and signed by the President, is imposed nationally whether some regions agree or not. Among the countries in Asia under unitary form that impose capital punishment include Indonesia and China.

    In the US, their Constitution clearly delineates powers and assigns to the Federal Government basically the defense, foreign affairs, the control of the currency, and the control of commerce between the states. The rest are either powers shared by the federal and the states, or exclusively state rights. Most of the civil and criminal laws governing American lives are state laws.

    Capital punishment is exclusive to states’ rights. A particular state can enact laws to kill a criminal (heinous crimes) and have him hanged—and even “drawn and quartered.” States whose sensibilities can’t take these drastic measures need not enact similar laws—but can just kill their capital criminals by lethal injection; or they can opt to incarcerate them for life; thus the difference between Federal and State rights—in contrast to our unitary system of government.

    Federalism and how to go about it!
    Crafting effective laws are fundamental to the well-being of the governed as to the government; which is why a law on death penalty is something of deep concern. To make democracy effective, governance must be brought “closer to the people.”

    With federalism, regions (states) would be the principal policymakers in the system. In the American federal model, US Supreme Court Justice Louise Brandeis says the advantage is that states would work as laboratories where they can experiment a variety of solutions to social and economic problem without putting the whole nation at risk.

    The shift to a Federal State would have to be based on the concept of Autonomy and Subsidiarity. We can’t just legislate federalism or just write a Constitution that de facto we will have a Federal Republic tomorrow. It cannot be done with one step but with several critical phases. In fact, the shift from presidential to parliamentary system may even come ahead of a Federal Republic since we need to reform first our politics, which must be priority legislative agenda (elections, campaign finance, political party reform and political dynasties, as well as our Comelec).

    In a model the 2005 Consultative Commission proposes, we allow the provinces and highly urbanized component cities to evolve first into an autonomous territory with the decision coming from the grassroots level. In other words, the citizens within a contiguous territory, with common language and culture, must decide in a referendum that they become completely autonomous. Petitions are passed by their local legislative assemblies.

    “Self-determination” is central to this decision. If a referendum is passed within a year, Parliament must enact an organic law defining the Autonomous Territory’s land area, powers, obligations and sources of revenues (taxes). If 3/5 (60 percent) of the provinces and component cities of the Philippines become Autonomous Territories, then the Federal Republic of the Philippines is created.

    But first, establish the environment that will allow a smoother shift. The cornerstones for the structural shift would have to be put in place:

    1) Effective and accountable political and social institutions;

    2) Emergence of real member-based ideologically-anchored political parties;

    3) Political will of competent, responsible and accountable leaders;

    4) Participation of informed, responsible and empowered citizens in governance and development;

    5) Productive and responsible private sector; and

    6) Values, spirituality and ethical behavior.

    Finally, a constitutional convention (ConCon) could be the better alternative, provided a combination of elected delegates is balanced with the appointed chosen delegates of the President. Most of these elected delegates would be the moneyed few, members of political dynasties whose clans and family interests take precedence. The chosen, appointed constitutional experts even from the marginalized sectors—who could never afford and win an electoral campaign—can counter and balance these dynasties and give the presidential agenda a chance to be debated and pondered upon well. Congress needs to enact this law.

    Lito Monico C. Lorenzana served under four Philippine Presidents in various capacities as a member of the Cabinet and in several Commissions. A Harvard-educated political technocrat, he was one of the prime movers of the Citizens Movement for Federal Philippines (CMFP). He is also one of the founders of the Centrist Democratic Party of the Philippines (CDP), Ang Partido ng Tunay na Demokrasya, and the Centrist Democracy Political Institute (CDPI).

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