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The Federalism Project in the Philippines: Cautionary Insights from the Institutional Design Literature

Gene Lacza Pilapil

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Acknowledgements

I would like to thank Mrs. Maria Isabel G. Ongpin and theAteneo de Manila University for having me as the speakerfor this year’s Jaime V Ongpin Annual Memorial Lecture,which I consider as the most prestigious annual memoriallecture in the country.

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Equally important, I am honored to be associated with thelegacy of Mr. Jaime V Ongpin who fought the Marcosdictatorship when it was neither the popular nor the profitablething to do at that time.

His example should continue to inspire this generation ofpublic intellectuals as this country’s democracy is now onceagain threatened by another authoritarian challenge andanother regime of untruth.

I would also like to thank everyone in the audience.

Although the topic is a worrying one, it should neverthelessbe a most happy day for me.

Among the audience are former professors, former students,(some of whom are covering the lecture for the differentmedia outlets), current students (who braved Makati trafficwithout being required nor enticed by any bonus grade),colleagues, and old-time friends.

A million thanks to everyone for attending.

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Three Main Aims of the Lecture

1. Give a working knowledge of a federal political system

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2. Introduce the importance of the institutional design literature to the Philippine charter change debate,

thereby helping elevate the level of the debate.

3. Give fair warning on the grave dangers of constitutional overhaulsbased on the nature of institutions and institutional changes

as seen from the vantage point of the institutional design literature.

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Outline of the Lecture

Outline

I. Short introduction to the institutional design literatureII. What is federalism? III. Why and why not federalism?IV. Three cautionary insights from the institutional design literature for the federalism project in the Philippines (and the overall charter change campaign)

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I. Short Introduction to the Institutional Design Literature

I. Short introduction to the institutional design literature

institutions

rules that influence the strategies of state and social actors

formal rules

“written down somewhere as laws, regulations, constitutions, treaties, and so forth” (John M. Carey)

“parchment institutions”

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institutions


formal rules



meta-institution: constitution

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institutions


formal rules



meta-institution: constitution

If separated = presidential

one basic example: form of government

relation between the executive and legislative

differences in the arrangement of formal rules

If fused = parliamentaryinstitutional design of a country’s form of government

horizontal

If hybrid = semi-presidential


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studies how the design(or redesign) of a country’s

political institutions

such as theform of government,


such as theform of government, system of government




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such as theform of government, system of governmentelectoral system,




such as theform of government, system of governmentelectoral system, party system,




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such as theform of government, system of governmentelectoral system, party system, legislative structure,




such as theform of government, system of governmentelectoral system, party system, legislative structure, judicial system,




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such as theform of government, system of governmentelectoral system, party system, legislative structure, judicial system, andconstitutional bodies








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affects or will affect, among others,





affects or will affect, among others, the accountability,



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affects or will affect, among others, the accountability, representation,





affects or will affect, among others, the accountability, representation, popular empowerment,



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affects or will affect, among others, the accountability, representation, popular empowerment, elite capture,





affects or will affect, among others, the accountability, representation, popular empowerment, elite capture, and coherent policymaking of the state



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“constitutional engineering literature”

other terms

“constitutional design literature”

“institutional approach”

“new institutionalism”


counts some of the biggest names in the political science discipline

Today’s lecture would recruit supporting arguments from, among others:

John M. Carey

Matthew Shugart Scott Mainwaring

Giovanni Sartori

Robert Kaufman

George Tsebelis

Stephan Haggard

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including winners of the Johan Skytte Prize in Political Science

"to the scholar who in the view of the Foundation has made the most valuable contribution to political science”

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Rein Taagepera (2008)

Adam Przeworski (2010) Jon Elster (2016)

Arend Lijphart (1997)

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Rein Taagepera (2008)

Adam Przeworski (2010) Jon Elster (2016)

Arend Lijphart (1997)

Juan Linz (1996)

II. What is Federalism?

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II.A. Definition of Terms

Most famous definition of federalism

is the shortest one

Daniel Elazar in his 1987 book, Exploring Federalism

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is the shortest one

“The simplest possible definition is self-rule plus shared rule.”


italicized part repeated like a mantra in most

discussions of federalism

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is the shortest one

“The simplest possible definition is self-rule plus shared rule.”


divided powers

shared sovereignty

Another famous definition of federalism

William H. Riker in his 1975 article, “Federalism” in Handbook of Political Science, Volume Five

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Another famous definition of federalism

"Federalism is a political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.”

William H. Riker in his 1975 article, “Federalism” in Handbook of Political Science, Volume Five

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A current definition of federalism

International IDEA in its 2015 primer, “Federalism”

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“Federalism is a system of government that establishes a constitutionally specified division of powers between different levels of government.”



“Federalism is a system of government that establishes a constitutionally specified division of powers between different levels of government.”

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system of government

relationship between the

central government

local government

Unitary system of government

vertical

single central source of authority

subordinate to the central



central government

local government

Federal system of government

vertical

in certain policy areas where central government has exclusive jurisdiction

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local government

central government


vertical

in certain policy areas where local government has exclusive jurisdiction



local government

central government


vertical

in certain policy areas where both governments have jurisdiction(concurrent/shared)

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local government


verticalcentral government

in certain policy areas where both governments have jurisdiction(concurrent/shared)

II.B. List of Federal Countries

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Handbook of Federal Countries in 2005 listed 25 federal countries:

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SwitzerlandUnited Arab EmiratesUnited StatesVenezuela

ArgentinaAustraliaAustriaBelgiumBosnia and

HerzegovinaBrazilCanadaComorosEthiopia Germany

IndiaMalaysiaMexicoF.S. MicronesiaNigeriaPakistanRussiaSerbia and MontenegroSouth AfricaSpainSaint Kitts-Nevis

Handbook of Federal Countries in 2005 listed 25 federal countries:

Forum of Federations in October 2016 lists 24 federal countries:

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SwitzerlandUnited Arab EmiratesUnited StatesVenezuela

ArgentinaAustraliaAustriaBelgiumBosnia and HerzegovinaBrazilCanadaEthiopia GermanyIndia

IraqMalaysiaMexicoNepal NigeriaPakistanRussiaSouth AfricaSpainSudan

Forum of Federations in October 2016 lists 24 federal countries:

Not in the list:ComorosF.S. MicronesiaSaint Kitts-Nevis

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South AfricaSpainSudanSaint Kitts-NevisSwitzerlandUnited Arab EmiratesUnited StatesVenezuela


HerzegovinaBrazilCanadaComorosEthiopia

GermanyIndiaIraqMalaysiaMexicoF.S. MicronesiaNepalNigeriaPakistanRussia

My Provisional List: 27 Federal States






Cover 40 percent of the world’s population

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but they constitute a minority of the total of 195 states (14%) Cover 40 percent of the world’s population






Freedom House Freedom in the World 2016

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Freedom House Freedom in the World 201618 out of 27 of federal states are electoral democracies = 67%

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Freedom House Freedom in the World 201618 out of 27 of federal states are electoral democracies = 67%





18 out of 27 of federal states are electoral democracies = 67%Freedom House Freedom in the World 2016

107 out of 195 of non-federal states are electoral democracies = 64%

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II.C. Institutional Features of Federal System

This section is mainly based on Ronald Watts’s 1996 book, Comparing Federal Systems in the 1990s

Many texts in the slides are direct quotes from this book

Did not rewrite many of his terms because of the technical nature of his arguments

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ProfessorDepartment of Political Science

University of Melbourne

II.D. Six common institutional features of federal systems according to Watts

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Different scholars list different numbers of common or essential features of federalism

Duchacek =

Watts = lists 6 common features

Galligan = lists 4

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Different scholars list different number of common or essential features of federalism

Duchacek = lists 8


Galligan = lists 4

(“yardsticks of federalism”)

Different scholars list different number of common or essential features of federalism

Duchacek = lists 8


Galligan = lists 4

(“yardsticks of federalism”)

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1. Orders of Government

1. two orders of government each acting directly on their citizens

federal level constituent level

a.k.a.

“central” (ex. South Africa)

“union government”(ex. India)

a.k.a. “states” (exs. Australia, Malaysia, US)

“provinces” (exs. Argentina, Canada)

“regions” (ex. Belgium)

“cantons” (ex. Switzerland)

“autonomous communities” (ex. Spain)

“Länder” (exs. Austria, Germany)

“federal” (exs. US, Germany)

“national” (ex. Sudan)

geographically or territorially defined

“communities”

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2. Distribution of Powers

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2. a formal constitutional distribution of powers and allocation of revenue resources between the two orders of government


involves the distribution of legislative powers and executive powers between the federal and the constituent governments

vary in terms of form and scope

Exclusive Legislative Powers

Concurrent Legislative Powers

ResidualLegislative Powers

a.k.a. “jurisdiction”a.k.a. “legislative competences”

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a.k.a. “jurisdiction”

international relations

defenseeconomic and monetary union

taxing powers

interregional transportation

social affairs maintenance of law and security

immigration

a.k.a. “legislative competences”




a.k.a. “jurisdiction”a.k.a. “legislative competences”

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Exclusive Legislative Powers

assigned only to either

the federal government

the constituent government

or

exs. Canada, Spain, India, Australia, US,

Argentina and Pakistan

exs. Canada, Spain, and India

Canada’s Constitution

Federal JurisdictionSections 91 and 92 (10)

Provincial JurisdictionSections 92, 92A, and 93

Direct Taxation within Province

Management/Sale of Public Lands belonging to Province

PrisonsHospitalsMunicipalitiesFormalization of Marriage

Available from http://www.pco-bcp.gc.ca/aia/index.asp?lang=eng&page=federal&doc=legis-eng.htm

Public Debt and Property

Regulation of Trade/Commerce

Unemployment Insurance

Direct/Indirect TaxationPostal ServiceCensus/Statistics

Exs. Exs.

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shared between the federal and the constituent governments

may be legislated by both the federal and the constituent governments

in most instances, federal legislation prevails over constituent legislation

in case of conflicts between them

a.k.a. Shared legislative powers


Distribution of Concurrent Legislative Power

Sample Country Cases

extensive areas of concurrent jurisdiction

limited areas of concurrent jurisdiction Canada

Australia, Germany, India, US

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Residual Legislative Powers

federal government constituent governments

Identify which order of government has jurisdiction over matters not specified in the constitution as exclusive or concurrent

usually in federations created by the process of aggregating

previously separate units(“coming-together federalism”)

usually in federations created by the process of devolution from a formerly unitary state

(“holding-together federalism”)

India and Canada Australia, Austria, Germany, Switzerland, and the US

Distribution of Powers in a Sample of Federal Countries (from IDEA)

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all constituent governments have equal

juridical status and powers

symmetrical asymmetrical

differences in the status of legislative and executive powers assigned by the constitution to the constituent governments

one form: constitutional asymmetry


asymmetrical



one type of constitutional asymmetry

increase the jurisdiction (autonomy) of particular constituent states

concessions made to the Borneo states (Sabah and Sarawak)

when they joined the Malaysian federation in 1963

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asymmetrical



one type of constitutional asymmetry

concessions made to some of the “autonomous communities” in Spain (esp. Basque Country,

Catalonia, and Galicia)

increase the jurisdiction (autonomy) of particular constituent states


fiscal federalism

1. tax collection and revenue raising powers

2. intergovernmental financial transfers

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fiscal federalism


Distribution of Taxing Powers

Taxing Powers

Customs

FederalConcurrent

Federal paramountcyConcurrent

Canada, US, Switzerland, Australia,

Germany, Austria, India, Malaysia, Spain,

Pakistan

Belgium

Based on Watts, Comparing Federal Systems in the 1990s, Appendix A, p. 118.

Excise US, Belgium IndiaCanada, Switzerland, Australia, Germany, Austria, Malaysia, Spain, Pakistan

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Taxing Powers

Customs

FederalConcurrent

Federal paramountcyConcurrent

Canada, US, Switzerland, Australia,

Germany, Austria, India, Malaysia, Spain,

Pakistan

Belgium


Excise US, Belgium IndiaCanada, Switzerland, Australia, Germany, Austria, Malaysia, Spain, Pakistan

Corporate Income

Personal Income

Sales

Taxing Powers Federal

Austria, Malaysia

CanadaUS, Australia, Germany*, Belgium

Switzerland, Austria, India, Malaysia, Spain, Pakistan

Canada, India, Switzerland,

Spain, Pakistan

US, Australia, Germany*, Belgium

Canada, IndiaSwitzerland,

Austria, Malaysia, Spain, Pakistan



Concurrent ConcurrentFederal paramountcy


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Corporate Income

Personal Income

Sales

Taxing Powers Federal

Austria, Malaysia

CanadaUS, Australia, Germany*, Belgium

Switzerland, Austria, India, Malaysia, Spain, Pakistan

Canada, IndiaSwitzerland,

Austria, Malaysia, Spain, Pakistan



Concurrent ConcurrentFederal paramountcy



Canada, India, Switzerland,

Spain, Pakistan

Foreign Borrowing

Debt/Borrowing Powers

Federal

Austria, India, Malaysia

Australia

Distribution of Debt / Borrowing Powers

Canada, US, Switzerland,

Germany, Spain, Pakistan

ConcurrentFederal paramountcy


Concurrent

Domestic Borrowing Australia

Canada, US, Switzerland, Germany, India, Malaysia, Spain,

Pakistan

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Foreign Borrowing

Debt/Borrowing Powers

Federal

Austria, India, Malaysia

Australia

Distribution of Debt / Borrowing Powers

Canada, US, Switzerland,

Germany, Spain, Pakistan

ConcurrentFederal paramountcy


Concurrent

Domestic Borrowing Australia

Canada, US, Switzerland, Germany, India, Malaysia, Spain,

Pakistan


fiscal federalism


2. intergovernmental financial transfers

a.k.a. “equalization transfers”“solidarity transfers”composed of conditional and unconditional grantsroughly similar to the Philippines’ Internal Revenue Allotment

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Fiscal imbalances that every federalism has to correct

1. vertical imbalances

constitutionally assigned revenues for the federal and constituent governments

constitutionally assignedexpenditure responsibilities for the federal and constituent governments

assignment of expensive expenditures to the

constituent governments

allocation of major taxing powers to the federal

governments

Main reason for the vertical imbalance

≠

vs.

2. horizontal imbalances

revenue capacities of different constituent governments vary

inability of constituent governments to provide their citizens with services at the same level(regional imbalances)

Fiscal imbalances that every federalism has to correct

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Correcting the horizontal and vertical imbalances

financial transfers from one level of government to another

federal governments constituent governments

financial transfers

unconditional transfersconditional transfers(federal transfers to constituent

governments that have conditions attached to them)

(federal transfers to constituent governments that have no conditions

attached to them)

exception Germany: interstate

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3. Bicameralism

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3. provision for the designated representation of distinct regional views within the federal policy-making institutions, usually provided by the particular form of the federal second chamber

principle of bicameralism in federalism

except the United Arab Emirates

and Saint Kitts and Nevis,

all federations are bicameral

authoritarian regime

microstate

3. provision for the designated representation of distinct regional views within the federal policy-making institutions, usually provided by the particular form of the federal second chamber

principle of bicameralism in federalism

except the United Arab Emirates

and Saint Kitts and Nevis,

all federations are bicameral

Unlike the first chamber, the second chamber is the legislative institution which operates on the basis of representation as states

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Manner of Selection Sample Country Case/sImplications


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4. Constitutional Entrenchment

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4. a supreme written constitution not unilaterally amendable and requiring the consent of a significant proportion of the constituent units

this is the principle of constitutional entrenchment of federalism

plain English: very difficult to amend its federal character

amendments of the constitution that affect its federal character

require the involvement of both orders of government

most federations require:

approval in both houses of the federal legislature

special majority

simple majority

(US, India, and Malaysia)

(Switzerland and Canada)

approval either by a special majority of the constituent unit legislatures

US, Canada, India, and Malaysia

or by a referendum requiring a “double majority”

(ex. distribution of power)

“federally weighted”

absolute majority (Australia)

+

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amendments of the constitution that affect its federal character

require the involvement of both orders of government

most federations require:

approval in both houses of the federal legislature

(Switzerland and Australia)

special majority

simple majority

(US, India, and Malaysia)

(Switzerland and Canada)

approval either by a special majority of the constituent unit legislatures

US, Canada, India, and Malaysia

or by a referendum requiring a “double majority”

1. overall majority and 2. majorities in a majority

of constituent units

(ex. distribution of power)

“federally weighted”

absolute majority (Australia)

+

4. a supreme written constitution not unilaterally amendable and requiring the consent of a significant proportion of the constituent units

this is the principle of constitutional entrenchment of federalism

plain English: very difficult to amend its federal character

Qualify Watts: some federal constitutions have “eternity clauses” for their federal character

certain cases: not possible

to revoke

exs. Brazil and Germany

clauses that cannot be changed by amendment

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5. Adjudication

5. an umpire (in the form of courts or provision for referendums) to rule on disputes between governments

even more necessary in federations

and the consequent likelihood of intergovernmental competition and conflict

unavoidability of overlaps of jurisdiction between governments

need for processes to adjudicatedisputes and resolve conflicts

referendum (Switzerland)

judicial“judicialization of politics”

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5. an umpire (in the form of courts or provision for referendums) to rule on disputes between governments

two types of courts

supreme court constitutional court

final adjudicator in relation toall laws including the constitution

specializes in constitutional interpretation

US, Canada, Australia, India, Malaysia, and Austria

Germany, Belgium, and Spain

Methods of Appointment to the Supreme Courts

Methods of Appointment Sample Country Case/s

appointed solely by the president but ratified by the Senate where the state electorates are equally represented

US

appointment by federal cabinet but required by the constitution to consult certain bodies before making the appointments

India and Malaysia

Germany

Bundesrat representing the Lӓnderappoints half the members of the Constitutional Court and the Bundestag the other half

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US

India and Malaysia

Bundesrat representing the Lӓnderappoints half the members of the Constitutional Court and the Bundestag the other half

Germany

appointment by federal cabinet but required by the constitution to consult certain bodies before making the appointments




US

India and Malaysia

Germany

Bundesrat representing the Lӓnderappoints half the members of the Constitutional Court and the Bundestag the other halfappointment by federal cabinet but required by the constitution to consult certain bodies before making the appointments

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6. Intergovernmental Collaboration

6. processes and institutions to facilitate intergovernmental collaboration for those areas where governmental responsibilities are shared or inevitably overlap

two important dimensions

relations between the federal and unit governments inter-unit relations

exs. standing and ad hoc meetings involving ministers, legislators, officials and agencies of different governments

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Institutions of Intergovernmental Collaboration within Federations

Institutions Forms of Institutions

formal standing and ad hoc meetings involving ministers, legislators, officials and agencies of different governments

“executive federalism” (parliamentarism) = predominant role of governmental executives (ministers and their officials)

federal legislature (presidentialism) and a variety of channels e.g. extensive lobbying of federal legislator by various state

and cantonal representatives

interlocked federalism = there is a constitutional requirement that a considerable portion of federal legislation must be administered by the governments of the regional units (Germany)

II.E. Primary and Secondary Characteristics of Federalism

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Neat Institutional Design Technique to Make Sense of the Institutional Features of Federalism

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1. Orders of Government

2. Distribution of Powers

3. Bicameralism

4. Constitutional Entrenchment

5. Adjudication

6. Intergovernmental Collaboration

7. ______________

8. ______________

9. onwards ______________

Primary characteristics

Secondary characteristics

Neat Institutional Design Technique to Make Sense of the Institutional Features of Federalism

(that make possible the primary characteristics)

III. Why and Why not Federalism?

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Potential Advantages of Federalism (International IDEA, 2015)

2. Federal government is rooted in constitutionalism and pluralism

3. Broaden the base of power-sharing

4. Encourage innovative and pragmatic approaches to policy development

5. Reduce the burden on the central authorities

6. Share resources across geographical space

7. Develop capacity and democratic responsibility

1. Federalism is offered as an institutional solution to the problems associated with scale and diversity

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1. Duplication of work and lack of coherence

2. Additional operating costs

3. Increasing regional discrepancies of wealth, resources and outcomes

4. Harmful economic competition between sub-national units

5. Judicialization of politics

Potential Disadvantages of Federalism (International IDEA, 2015)

6. Potential exclusion of minorities

7. The strengthening of local elites who misuse power

8. Ineffective governance because of a lack of capacity

9. Instability and threats to democracy

Nine Potential Disadvantages of Federalism (International IDEA, 2015)

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IV. Three Cautionary Insights from the Institutional Design Literature

IV.1. First cautionary insight: No consensus on the superiority of one form/system to another

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there is no consensus on the superiority of the

form of government

or

parliamentary /semi-presidential

presidential

federal

to the

unitary


to the

or vice versa

a package of institutional featuressystem of government

1. Institutional bundle

federal unitary

distribution of legislative/executive powers

level and type of decentralization

devil is in

the details

appointment powers of the president to bureaucracydesign of upper house

manner of recruitment in the national/local

bureaucracy

just a few examples:

mechanisms for intergovern-mental coordination


type of constitutional entrenchment

level and type of devolution

Critics of the superiority argument give two intertwined reasons:

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a package of institutional featuressystem of government


At the level of institutional bundle, helps explain performance

federal unitary

distribution of legislative/executive powers

level and type of decentralization

devil is in

the details

appointment powers of the president to bureaucracydesign of upper house

manner of recruitment in the national/local

bureaucracy


mechanisms for intergovern-mental coordination


type of constitutional entrenchment

level and type of devolution

a package of institutional featuresform of government


parliamentary presidential

impeachment rules

devil is in

the details

reelection rule

design of legislature(unicameral/bicameral)

veto power of the president


power of legislative committees


type of confidence votelegislative proactive

powers of the president dissolution power of the

prime minister

impoundment and other budgetary powers

cabinet powers

At the level of institutional bundle, helps explain performance

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2. Institutional configuration how different types of institutions affect each other

(e.g. how party system is affected by the electoral

system)


this means that institutions must not be analyzed independentlyfrom other institutions that may

affect their functioning

form of government

2. Institutional configuration

parliamentary

electoral system

party system

form of government presidential

party system

electoral system

just one pair of

examples:

devil is in

the details

Westminster

PR

SMD

PR

(SMD)

performance affected by other institutionsform of government

MM


run-off

timing of elections

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form of government


parliamentary

electoral system

party system

form of government presidential

party system

electoral system

At the level of institutional design, helps explain performance

just one pair of

examples:

devil is in

the details

Westminster

PR

SMD

PR

(SMD)

form of government

MM run-off

timing of elections

performance affected by other institutions



federal

electoral system

party system

system of government unitary

party system

electoral system

devil is in

the details

performance affected by other institutionssystem of government

just one pair of

examples:

At the level of institutional design, helps explain performance

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federal

electoral system

party system

system of government unitary

party system

electoral system

devil is in

the details


just one pair of

examples:

Note that non-institutional factors are not yet factored here:exs. level of economic development, colonial heritage, political culture, political elite composition, length of democracy, geographical location

performance affected by other institutions

IV.2. Second cautionary insight: Reform not Overhaul

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is to reform rather than overhaul their systems or forms of government

the recommendation of top scholars for democratic countries with already functioning systems or forms of government

revival of institutional design questions



revival of institutional design questions = linked with the most recent wave of democratization where from 1974-1994: 75 countries transited to democracies role of Juan Linz’s 1990 article

“The Perils of Presidentialism” including the Philippines in 1986

fundamental institutional choices for

new democracies: most important is the form of government

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picked up by Filipino parliamentary advocates by mid-1990s, when we have already made our choice of form of government in the 1987 Constitution



role of Juan Linz’s 1990 article “The Perils of Presidentialism”

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the difficulty and danger of these choices are captured by the subtitle of Jon Elster et al.’s book on post-communist transitions in Eastern Europe

these regimes in transition have no option but to make these constitutional choices



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even for most scholars arguing the superiority of parliamentary and/or federal, there is no recommendation to dump existing presidential/unitary systems






even for most scholars arguing the superiority of parliamentary and/or federal, there is no recommendation to dump existing presidential/unitary systems

analogy: Sagada vs. Manila



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among the reasons why strongly discouraged:

1. unnecessary: if there is no superiority, then there is no need for overhaul




2. unbelievable: tasks too institutionally and intellectually complex for lofty goals

(institutional bundle)

especially for federalism where state governments, constitutions, courts, and bureaucracy, etc. would have to be created

and

(institutional configuration) +Philippine time frame is 10 years!

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andno democratic country has been crazy enough to make these overhauls at the same time!

(institutional configuration) (institutional bundle) +




andno democratic country has been crazy enough to make these overhauls at the same time!

semi-presidentialism

fast becoming a grocery list of institutions!

(institutional configuration) (institutional bundle) +

Just when you think it could not get crazier,

dual executive

very tricky executive veto gates

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institutional design literature has sobered from the enthusiasm of the early 1990s on the power to get institutional design right

and

And this is just about one aspect of the institutional configuration: electoral system

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institutional design literature has clearly sobered from the enthusiasm of the 1990s on the power to get institutional design right

Philippines’ constitutional overhaul project in 2016: height of intellectual irony

hubris?

sheer ignorance of the literature?

and/or

and




and

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and

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and

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and

hyperinstitutionalism

Taagepera:

“hyperrationality” (Croissant and Merkel)

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andTaagepera: “excessive optimism” in institutional design easily leads to “excessive disillusionment” afterwards undermining rather than deepening democracy

hyperrationality (Merkel and Croissant)

hyperinstitutionalism

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3. Unsafe (highly risky): will be discussed in cautionary insight 3

and



reforms do not need constitutional revisions

only legislation or constitutional amendments

1. More justifiable

two reform principles from Larry Diamond

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1. More justifiable

A. reform only in the face of manifest flaws

two reform principles from Larry Diamond

B. reform should correct those flaws as specifically as possible




2. Less risky: Messed-up reforms are more reformable

If there are errors in the reforms,

easier to return to the old setup or to push it further to the new setup through new legislation/amendment


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piecemeal reforms that move to a more parliamentary-like direction(example: party system reforms against turncoatism) or a more federal-like direction (exs.: increased regional autonomy or a more robust local govt. code)

If there are errors in the reforms, easier to return to the old setup

or to push it further to the new setup through new legislation/amendment involve only legislation


involve only legislation

For scholars, may yet be the most crucial prerequisite before any talk of a constitutional shift to parliamentary form

or a more federal-like direction (exs.: increased regional autonomy or a more robust local govt. code)

piecemeal reforms that move to a more parliamentary-like direction (example: party system reforms against turncoatism)

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Sartori:


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Sartori: undisciplined political parties in a presidential democracy becoming disciplined in a parliamentary shift is“against all odds”






Mainwaring and Shugart:


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Mainwaring and Shugart: undisciplined political parties in a parliamentary shift “could exacerbate problems of governability and instability” more than in a presidential democracy


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Croissant and Merkel:




Croissant and Merkel: different time horizon

the consolidation of the new party system takes much longer than changing the constitution

“old, fragmented, clientelistic, and irresponsible parties”

“would not be able to create strong and stable governments”

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or to push it further to the new setup through new legislation/amendment

very different from messed-up constitutional revisions involving system or form of government

especially for shift to federalism






because of constitutional entrenchment protecting

its status, no federal country negotiated under democratic conditions has

ever returned to unitary


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“forced-together

federalism”

IV.3. Third cautionary insight:Institutional design is political design

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According to Adam Przeworski:

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B

There are no optimal democratic institutions

and even if there were,


B



the distributive impact of institutional design means opposing political forces will most likely not choose them

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B




A

B1


A B




B1

B2

B3opposing

political forces

political economy of institutional design/constitutional engineering

each institutional design outcome reflects the balance of power

(most important actors are those who

will write the constitution)

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different from the federalism project before Duterte (1986-early 2016)

political economy of the federalism project in the Philippines under Duterte

only president to support was Arroyo (in her campaign platform in 2004)but haphazard support

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very strong support of the president

only president to support was Arroyo

only played second fiddle to the parliamentary project

(in her campaign platform in 2004)but haphazard support

(prominent in his campaign platform)

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very strong support of the president

only president to support was Arroyo

only played second fiddle to the parliamentary project

clear primacy over the parliamentary/semi-presidency project

(in her campaign platform in 2004)but haphazard support

(prominent in his campaign platform)

F How do we reach here?

Constituent Assembly Current preferred

mode: - Philippine President - House Speaker- Senate President- House Committee

on Constitutional Amendment


U(P/SP)

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Constituent Assembly Current preferred

mode: - Philippine President - House Speaker- Senate President- House Committee

on Constitutional Amendment


U(P/SP)

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ARTICLE XVII

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

“Constituent assembly” mode(Note: term never appears in the Constitution)

ARTICLE XVII

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

?

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October 10, 1986

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Constituent Assembly


U(P/SP)




U

assuming that the Duterte administration could get

and (223/297) in the Lower House = sure ball, as of now

the 3/4ths vote (18/24) in the Senate = big question mark

(P/SP)

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U

1. very low level of institutionalization of political parties

Philippine Congress (especially its HoR)

= real minority; down to 7 members

= PDP-Laban only had 3 out of 297 representatives

= PDP-Laban membership and allies swelled to a supermajority of 260-plus= official minority: 20-plus but also the majority's minority

Just two comments

one of the most crucial indicators:party switching

current 17th Congress (the one that will become the ConAss):

election result for HoR

post-election party-switching and re-alignment

LP had 116 members

(P/SP)



U

1. very low level of institutionalization of political parties


one of the most crucial indicators:party switching

higher level of payoffs to move legislative agenda of the executivepork barrel by any

other name(CDF, PDAF, DAP,

Duterte’s pork)

(P/SP)

More unstable political support for the president, especially when his popularity goes down

More incoherent lawmaking as more policy side payments are made with more players representing particularistic interests

Just two comments

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U

2. High level of barrier to entry


one of the most crucial indicators:political dynasty

(P/SP)

Not aware of any scholarly study yet on the 16th Congress (2013-2016) and the current 17th Congress (2016-2019)

But there are at least two on the House of Representatives of the 15th

Congress (2010-2013)

Just two comments

by Mendoza et al., 2012

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U




(P/SP)

HoR of the 15th Congress (2010-2013)

Just two comments

70 percent of members belong to a political dynasty

“with kinship links to at least one legislator in the 12th, 13th, 14th, or 15th Congress, or at least one local government

official elected in 2001, 2004, 2007, or 2010” (Dynasty3 Type)



U




(P/SP)

Not aware of any scholarly study yet on the 16th Congress (2013-2016) and the current 17th Congress (2016-2019)

But there are at least two on the House of Representatives of the 15th

Congress (2010-2013)

Just two comments

by Mendoza et al., 2012

by Rivera, 2011

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U




(P/SP)

HoR of the 15th Congress (2010-2013)

Just two comments

“34 out of 77 provinces or 44 percent had the same political family winning the governorship and at least one congressional district”

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U




(P/SP)Just two comments

Self-perpetuating in politics by nature of clan replication

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(P/SP)Just two comments

Self-perpetuating in politics by nature of clan replication Prevents party

institutionalization as dynasties act as surrogates of political parties

Highly clientelistic(patronage-based) because familial/clan interests take precedence over any national interests

U

How do we reach here?

ConAssmembers who are winners of the old unitary/presidential setup

U F(P/SP)

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U F

compromises “with groups that have

benefited from existing institutional

arrangements”

F1


overwhelmingly for non-institutionalized and dynastic interests

(P/SP)

(P/SP1)

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U F

F1



F2distributive swing could be more dramatic

(P/SP)

(P/SP1)

(P/SP2)

How do we reach here? U F

F1



F2

(P/SP)

(P/SP1)

(P/SP2)

because of the sheer multiplicity of features involved (think institutional bundle and configuration)

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F1



F2

F3

(P/SP)

(P/SP1)

(P/SP2)


(P/SP3)


F1


F2

F3


(P/SP)

(P/SP3)

“hybrid outcomes that leave lines of accountability unclear and combine the worstof both worlds”

institutional Frankenstein outcomes

(P/SP1)

(P/SP2)

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F1


F2

F3

(P/SP)

(P/SP3)


institutional endogeneity

(existing vested interests)among the most important factors:

(P/SP1)

(P/SP2)

what explains institutional choices?and performance?


F1


F2

F3

(P/SP)

(P/SP3)



premium on democratic regime transitions

assumption of some kind of displacement of the vested interests of the old order (P/SP1)

(P/SP2)

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F1


F2

F3

(P/SP)

(P/SP3)



Worst-case scenario of constitution-making for Przeworski (P/SP1)

(P/SP2)

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F1


F2

F3

(P/SP)

(P/SP3)



Worst-case scenario of constitution-making for Przeworski

“When the relation of forces is known and uneven,

the institutions arecustom-made for a particular person, party or alliance”

(P/SP1)

(P/SP2)


F1


F2

F3

(P/SP)

(P/SP3)



(P/SP1)

(P/SP2)

Elster:

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F1


F2

F3

(P/SP)

(P/SP3)



(P/SP1)

(P/SP2)

Elster:Constitutions“ought to be written by specially convened assemblies” “not by bodiesthat also serve as ordinary legislatures”

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F1


F2

(P/SP)ConAssmembers who are winners of the old unitary/presidential setup


(P/SP1)

(P/SP2)

Elster:Constitutions“ought to be written by specially convened assemblies” “not by bodiesthat also serve as ordinary legislatures”

“to reduce the scope for institutional interest”


F1


F2

F3

(P/SP)

(P/SP3)




analogy: same inept driver with brand new vehicle from Manila to Sagada

(P/SP1)

(P/SP2)

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IV.4. Other cautionary insights

4. Institutional design as “mis-design”(strategic miscalculations of actors)

a.k.a. “law of unintended consequences”

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5. Institutional design as “design-less”(upstream and downstream quality of new constitutional choices)

Thank you very much

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The Federalism Project in the Philippines: Cautionary Insights from the Institutional Design Literature

Gene Lacza Pilapil

Documents

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