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New charter must guarantee local autonomy

 

Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism. This commentary originally appeared on Philippine Daily Inquirer.

 

A federal government structure is characterized by constitutionally guaranteed “self-rule” and “shared rule” mechanisms. The form of government could be presidential, semipresidential or parliamentary, bicameral 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 the 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.

 

Art. II, Sec. 25 states: “The State shall ensure the autonomy of local governments.” Art. X, Sec. 2 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. Anyone 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 Art. II, except Sec. 16 on the people’s right to a balanced and healthful ecology, are not self-executory. Hence, the policies and principles listed here require enabling legislation to make them truly meaningful (i.e., enforceable in a court of law). Additionally, Art. X, Sec. 3 actually 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 (LGC) of 1991 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 President Duterte’s Consultative Committee (Con-Com) on constitutional reform, a good example of how a constitutional guarantee can be expressed in unequivocal terms is the charter of the Swiss Confederation.

 

Art. 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, Art. 42 provides that 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 (Art. 60) and the protection of animals (Art. 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 (Art. 62) and culture (Art. 69).

 

The proposed Bangsamoro Basic Law is a local example that the Con-Com can emulate. One of its more innovative reforms is the detailed allocation of government powers in Art. V: 1) powers reserved to the national government under Sec. 1; 2) powers held concurrently by the national government and the projected Bangsamoro Parliament in Sec. 2; and 3) powers held exclusively by the latter in Sec. 3.

 

In sum, an unequivocal constitutional guarantee of local autonomy requires the clear and coherent assignment of responsibilities between the federal and state governments. 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 constitution to ensure that public deliverables best suited for the subnational government are allocated to the latter. 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 local entity’s ability to satisfactorily perform its mandates.

 

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