COMMENTARY: Local autonomy must be guaranteed in the new charter

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QUEZON CITY (MindaNews/06 October) — A federal government structure is characterized by constitutionally guaranteed “self-rule” and “shared rule” mechanisms. The form of government could be presidential, semi-presidential or parliamentary, bi-cameral or unicameral, but for the governance structure to be truly federal, the autonomy of the subnational level of government must be self-evident in the text of national constitution. Hence, if a Federal Republic of the Philippines is to rise, then its charter must depart from the way local autonomy is prescribed in the 1987 Constitution.

Article II, Section 25 therein states: “The State shall ensure the autonomy of local governments.” Article X, Section 2 further adds that all the territorial and political subdivisions of the republic shall enjoy local autonomy. The word “shall” here is meant to convey the mandatory character of these constitutional prescriptions. Any one reading these two sections will very easily be convinced that local autonomy is guaranteed by the 1987 Constitution.

Interestingly, the Supreme Court has ruled that the sections in Article II, except Section 16 on the right of the people to a balanced and healthful ecology, are not self-executory. Hence, the policies and principles enumerated here require enabling legislation to make them truly meaningful (i.e. enforceable before a court of law). Additionally, Article X, Section 3 commands Congress to enact a local government code to spell out the mechanics of local autonomy.

This means the guarantee in the 1987 Constitution is not truly unequivocal because details are still subject to the legislative whims and caprices of professional politicians in Congress. As demonstrated by the life of the Local Government Code of 1991 (LGC) itself, genuine and meaningful local autonomy is always under threat by patronage politics. Its promise of local economic development is perpetually hostage to dynastic politicians in the legislature.

For the planned Consultative Committee on constitutional reform, indeed even for the contemplated Constituent Assembly, a good example of how a constitutional guarantee can be expressed in unequivocal terms is the Constitution of the Swiss Confederation.

Article 3 therein states, “The cantons are sovereign insofar as their sovereignty is not limited by the federal constitution; they exercise all rights not transferred to the federation.” Correspondingly, Article 42 provides the tasks of the federal government shall be (1) those allocated to it by the constitution and (2) which require uniform regulation. Examples of these federal tasks are the organization of the armed forces (Article 60) and the protection of animals (Article 80).

On the other hand, in addition to mandates not particularly assigned to the federal government, cantons (subnational governments) are also responsible for specific duties assigned by the Swiss Constitution such as education (Article 62) and culture (Article 69).

The Bangsamoro Basic Bill is a good local example. One of the more innovative reforms in this proposed piece of legislation 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.

In sum, an unequivocal constitutional guarantee of local autonomy requires the assignment of responsibilities between the federal and state governments to be clear and coherent.  Experience under the LGC clearly demonstrates that the lack of clarity concerning the local entity’s powers and functions can weaken the overall effectiveness of local autonomy.

The underlying principle here is for the national charter to ensure that public deliverables which are best suited for the subnational government are allocated to the latter full stop. This prescription is very critical because the correct division of tax powers and other revenue-raising measures between the two levels of government hinges on it. Again, as experience under the LGC proves, the conflation of assignment undermines the entire public finance framework which consequently diminishes the ability of the local entity to satisfactorily perform its mandates.

However, if in the proposed draft charter, the devolution of funds and functions will be done gradually in accordance with the financial and organizational capacity of the regions, then the current arrangement in the 1987 Constitution is simply retained.

Moreover, if the Philippines will become federal NOT when the purported federal constitution is ratified in a plebiscite, but ONLY after the enactment of a Regional and Local Government Code, then local autonomy is not guaranteed. The government framework such a constitution establishes is federal by name only. (Michael Henry Ll. Yusingco, LLM is a legislative and policy consultant, law lecturer, a Non-Resident Research Fellow in the Ateneo School of Government, and author of the book, Rethinking the Bangsamoro Perspective. He is a regular contributor in various news and public affairs organizations in the Philippines and Australia.)

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