COMMENTARY: Con-Com can learn from the BBL

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MELBOURNE, Australia (MindaNews/16 January) — One tool which can help the Constitutional Commission (Con-Com) organized by the Duterte administration with its mission is the Bangsamoro Basic Law (BBL).

Presently, the BBL is in limbo given the pending petitions with the Supreme Court questioning the constitutionality of the 2014 Comprehensive Agreement on the Bangsamoro (CAB).

Many are already urging the high court to rule on these petitions soon as the fate of the BBL depends on their determination of constitutionality. But regardless of the fate of the CAB, it still behooves the Con-Com to consider the BBL when they begin writing their draft charter.

One of the more innovative reforms in the BBL is the detailed allocation of government powers in Article V— 1) powers reserved to the national government under Section 1; 2) powers held concurrently by the national government and the projected Bangsamoro Parliament in Section 2; and, 3) powers held exclusively by the latter in Section 3.

Unequivocally defining the allocation of powers between the national government and the local government is absolutely necessary to improve the decentralization framework in the new charter. However, this path of reform requires first the rethinking of how decentralization itself is understood.

Section 25 of Article II of the 1987 Constitution guarantees the autonomy of local governments. In other words, local autonomy is intrinsic to the kapitolyo and the munisipyo. But Section 2 of Article X also states that local autonomy shall be enjoyed by the territorial and political subdivisions of the state (i.e. the provinces, cities, municipalities, and barangays).

A broader conceptualization of the decentralization process is therefore possible, in the sense that local autonomy can also be endowed to other government entities operating within a territorial and political subdivision. For while the Constitution explicitly mandates local autonomy for local governments; it does not expressly nor impliedly prohibit its application within the ranks of the national government.

Indeed, the notion in Section 2 of the Local Government Code that the process of decentralization “shall proceed from the national government to the local government unit” does not capture the full meaning of this concept. For decentralization can likewise entail the process of shifting administrative responsibilities from within the national government—i.e. from central departments to regional administrative branches. The official recognition of this second mode of decentralization is vital in enhancing the current structure.

From this recalibrated view of decentralization, follows the task of establishing that clear and coherent allocation of responsibilities between the central and local governments.

There are functions that must clearly fall within the jurisdiction of the local government. Some examples would be the following: the preservation of heritage and cultural sites, the protection of the environment, the regulation of businesses, the management of public land areas reserved for leisure and recreation, and the collection of land tax.

And there are government functions which cannot be devolved to local governments at all. Usually these pertain to matters that require uniform and state-wide regulation such as national defense, peace and order, foreign affairs, currency, postage and so forth. However, there are public mandates that have proven to be beyond the scope of local government but whose delivery still has to be decentralized. Public health management would be a good example here.

Under the current setup, both the national government, through the Department of Health, and the local government, through the local health boards, are mandated by law to provide public health services. As a result, the delivery of this particular public good is fragmented and substandard.

Under the streamlined decentralization framework, public health management is to be clearly classified as a national government responsibility. Thus, the mandate to govern the overarching health management system of the country shall be placed squarely on a national agency which shall be designated here as the Health Service Commission. This office shall have regulatory and policy-making functions.

However, the delivery process itself of health services will not be centralized. Therefore, the Health Service Commission shall have a branch in every province. And this field office shall have the sole authority over matters concerning public health management in the province concerned. Locally therefore, the accountability for the delivery of this service would no longer be fragmented and discombobulated.

Plainly, the streamlining of decentralization in the Philippines does need revision or amendment of the Constitution. But given that the standing order from the President is to shift to a federal structure, a more detailed study of this process by members of the Con-Com would be necessary.

Nevertheless, the basic principles are clear. First, local autonomy can be enjoyed by both local governments and regional or provincial branches of the national government. Second, a clear and coherent allocation of responsibilities between the central and local governments must be established. Noting that for some government functions, the second mode of decentralization is the more appropriate framework. (MindaViews is the opinion section of MindaNews. Atty. Michael Henry Ll. Yusingco is a practicing lawyer. He is presently completing a Masters of Law and Development in Melbourne Law School. He recently published a book entitled, Rethinking the Bangsamoro Perspective.)

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