ADVANTAGES AND DISADVANTAGES
OF LOCAL AUTONOMY
Advantages of Local Autonomy
Local government autonomy or self-rule empowers the local community to
be self-reliant.[i]
It enables them to take advantage of their strengths and address their
weaknesses. Since the decision makers are locals, there is a greater
probability that the locally formulated government programs will cater for the
actual needs of the local community. Moreover, since the decision makers are
based locally, there is also a greater opportunity for accountability vis-a-vis
the local community.
To ensure that local governments have the capacity to be autonomous,
each local government unit is empowered “to create its own sources of revenues
and to levy taxes, fees and charges.”[ii] They are
mandated to have “a just share ... in the national taxes.”[iii] They are
also “entitled to an equitable hare in the proceeds of the utilization and
development of the national wealth.”[iv]
More particularly, local government units have an internal revenue
allotment of 40% in the collection of national internal revenue taxes.[v] They have a
40% share in the gross collection derived by the
national government from mining taxes, royalties, forestry and fishery charges,
and from the latter's share in any co-production, joint venture or production
sharing agreement in the utilization and development of the national wealth
within the former's territorial jurisdiction.[vi] In special economic zones, cities and
municipalities have a 40% share in the 5% gross income tax imposed on business
establishments operating within the zones located within their territorial
jurisdiction.[vii]
To undertake local development, local government units may enter into contracts with private project
proponents for the financing, construction, operation and maintenance of any
financially viable infrastructure or development facility under a
public-private partnership.[viii]
The local government units that enjoy autonomy are the provinces,
cities, municipalities and barangays.[ix] The
provinces comprise of cities and municipalities, while the latter comprise of
barangays.
Disadvantages of Local Autonomy
In the context of a nation state comprised of both a national government
and several local government units, local government autonomy may give rise to
certain disadvantages, such as conflicting regulation, overlapping
regulation, excessive regulation and excessive taxation.
(1) Conflicting regulation
The Local Government Code declares “the policy of the State that
the territorial and political subdivisions of the State shall enjoy genuine and
meaningful local autonomy to enable them to attain their fullest development as
self-reliant communities and make them more effective partners in the
attainment of national goals.”[x] The Code then provides as an operative principle
the “effective allocation among the different local government
units of their respective powers, functions, responsibilities, and resources.”[xi]
Notably however, the Code does NOT provide for any operative principle
regarding the delineation of the respective power, functions, and
responsibilities between the local and national governments. The Code
simplistically assumes that “genuine and meaningful local autonomy” will
necessarily make the local government units effective partners of the national
government. The Code does NOT in any way address the reality of conflict of
powers, functions and responsibilities between the national and local
governments.
For example, in the management of traffic along the roads of Metro
Manila, it is of common knowledge that certain local government units here
insist on having their own set of traffic rules and regulations (i.e. number
coding scheme) enforced on national roads, even though the traffic problem cuts
through their political boundaries. The end result is of course further chaos.
Is this what is meant by “genuine and meaningful local autonomy” that makes
local governent units effective partners of the national government?
Another example, in the establishment of infrastructure facitilies
subject to the environmental clearance requirements[xii], certain
local government units unreasonably withhold the issuance of local permits,
even though the project proponent has already secured the Environmental
Clearance Certficate (ECC) from the Department of Environment and Natural
Resources (DENR). This effectively prevents the project proponent from
establishing the infrastructure facilities. Does the Local Government Code vest
upon local government units such powers superior to that of national government
agencies?
The answers to these questions are obviously in the negative. In order
that the system of national and local governments actually work to complement
rather than conflict with each other, there has to be a clear delineation of
their powers, functions and responsibilities.
In this regard, this paper recommends the issuance of implementing rules
and regulations or the amendment of the Local Government Code, to expressly
provide for the following operative principles:
(a) That “devolved
local autonomy shall not be construed to
empower local government units to authorize acts or omissions expressly
prohibited by the national government, nor to prohibit acts or omissions
expressly authorized by the national government;”[xiii]
(b) That
“devolved local autonomy shall not be construed to empower local government
units to obstruct or disrupt, or cause the obstruction or disruption, of the
formulation or implementation of national government policies, programs or
projects, by direct or indirect measures, such as the enactment of ordinances,
issuance of executive orders, or withholding of permits, licenses or clearances
notwithstanding compliance with the applicable requirements;”[xiv]
(c) That “in
case of conflict between national government standards and local government
standards, the former shall prevail over the latter, for purposes of the
issuance of permits, licenses or clearances by local government units, in
connection with the implementation of programs or projects adopted, conducted
or authorized by the national government.”[xv]
(d) That “the
management of traffic in national roads and bridges shall be the responsibility
of the national government acting through its implementing agency, while the
management of traffic in city, municipal, provincial, metropolitan and barangay
roads and bridges, shall be the responsibility of the city, municipal,
provincial, metropolitan and barangay governments respectively. If in any case
the traffic in local roads and bridges affect the traffic in national roads and
bridges, the national government through its implementing agency shall be
empowered to assume on temporary or permanent basis, the management of traffic
in the local roads and bridges concerned upon written notice to the local chief
executive;”[xvi]
(e) That “the national government
through its implementing agency may in the national interest devolve to the
local government, subject to acceptance by the local government council
concerned, the responsibility to manage traffic in national roads and bridges.
No devolution made and accepted shall be irrevocable. the devolution of the
responsibility to manage traffic in national roads and bridges may in the
national interest be suspended or revoked at any time by the national
government through its implementing agency.”[xvii]
(2) Overlapping regulation
Inasmuch as provinces
comprise of cities and municipalities, while cities and municipalities comprise
of barangays, there is an obvious overlap of territorial jurisdiction between
and among them. In the best situation, there will be at least two (2) local
government units with concurrent jurisdiction over the same area, i.e. the City
and the Barangay. In the worst situation, there will be three (3) local
government units with overlapping territorial jurisdiction, i.e. the Province,
the City or Municipality, and the Barangay.
With this overlap in
territorial jurisdiction in mind, it is important to note that ALL local
government units are empowered to promote the general welfare. “Every local government unit ... exercise the powers expressly
granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units ... ensure and
support, among other things, the preservation and enrichment of culture,
promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment among their
residents, maintain peace and order, and preserve the comfort and convenience
of their inhabitants.”[xviii] Thus,
“local government units ... exercise such other powers and discharge such other
functions and responsibilities as are necessary, appropriate, or incidental to efficient
and effective provision of the basic services...[xix]
With respect to the
regulation of business activities, the Cities and Municipalities issue a business
permit. For the same activities, the Barangays (of the City or
Municipality) issue a business clearance.
In Makati City, the
basic documents required by the City and those required by Barangays San
Lorenzo and Bel-Air (with jurisdiction over the business district), are
substantially the same: (1) SEC or DTI Registration, and (2) Lease Contract or
Certificate of Title.[xx] In Pasig
City, the basic documents required by the City and those required by Barangay
San Antonio (with jurisdiction over the business district), are likewise
substantially the same: (1) SEC or DTI Registration, and (2) Lease Contract or
Certificate of Title.[xxi]
Curiously, Barangay San Antonio imposes its own requirement for a Comprehensive
General Liability Insurance, even though the City already imposes the same
insurance requirement.[xxii] This is
“double insurance” that doubles the cost of the insurance premiums, but
nonetheless disallows double recovery, pursuant to the insurance laws.[xxiii]
Notably, the imposition
of redundant requirements by equally autonomous local government units with
overlapping territorial and functional jurisdiction, increase the cost of doing
business. These redundant requirements unnecessarily waste the resources of
business enterprises and hamper their efforts to generate income, pay taxes and
create jobs. Instead of promoting the general welfare and providing basic
services, these redundant requirements actually do the opposite.
For efficient regulation, this paper recommends that the local
government system integrate the Barangay into the permit or registration
process of the City or Municipality, rather than segregate the Barangay
from the latter where the former becomes a mini-City or mini-Municipality with
its own business clearance (as the functional equivalent of the business
permit or business registration). To operationalize integration, the
City or Municipality may deputize the Barangay to receive, process, transmit
and release the business permit or business registration, for
the convenience of the local taxpayers. Nonetheless, the City or Municipality
retains the power to approve the permit or registration, as well as to collect
the fees and charges, unless the collection function is outsourced to
authorized agent banks with branches located close to the Barangay office,
again for the convenience of the local taxpayers.
(3) Excessive regulation
The declared policy of the State provides “that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local
autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national
goals. Toward this end, the State shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers,
authority, responsibilities, and resources. The process of decentralization
shall proceed from the national government to the local government units.”[xxiv]
Notably however, the Local Government Code does NOT provide for any
operative principle regarding the coverage, extent and limit of the power,
functions, and responsibilities of local government units as autonomous
entities. The Code merely assumes that “genuine and meaningful local autonomy”
will necessarily make the local government units self-reliant, responsive and
accountable. The Code does NOT in any way address the reality of excessive
regulation by local government units that remain unchecked because of their
autonomous nature.
For example, in the lease of office space
within the business districts of Metro Manila, the developer of an office
building ordinarily secures a locational clearance, building permit and
occupancy permit for the entire building, before it sells or leases units of
office space within the premises. When an owner of an office unit in the
building leases the premises to another, both the owner/lessor and the lessee
are again required to secure their own locational clearance and occupancy
permit, even though their usage is limited to office purposes only, and no
structural or material alterations are made to the physical premises. Similar
excessive regulations are imposed on owners and lessors of residential units.
These redundant requirements increase the cost of doing business, and serve no
meaningful public purpose or interest.
For the avoidance of excessive regulation, this
paper recommends the issuance of implementing rules and regulations or the
amendment of the Local Government Code, to expressly provide for the following
operative principles in the lease of commercial or residential buildings:
(a) In buildings designed and built in whole or in part for commercial
or residential use, the locational clearance shall be required only for the
construction phase of the entire building; no separate locational clearance
shall be required from owners of units of commercial or residential space in
the building, nor from lessors, lessees, sub-lessors and sub-lessees of said
commercial or residential space; the building administrator or manager shall,
by ordinance or implementing rules and regulations, be required to monitor and
ensure that the use of the building or any part of thereof shall be limited to
the authorized commercial or residential use;
(b) In buildings
designed and built in whole or in part for commercial or residential use, the
building permit and occupancy permit shall be required only for the
construction phase of the entire building; no separate building permit or
occupancy permit shall be required from owners of units of commercial or
residential space in the building, nor from lessors, lessees, sub-lessors and
sub-lessees of said commercial or residential space, unless the occupant
undertakes structural or material alterations in the electrical, mechanical,
plumbing or fire safety systems of the building; the building administrator or
manager shall, by ordinance or implementing rules and regulations, be required
to monitor and ensure that no structural or material alteration in the
electrical, mechanical, plumbing or fire safety systems of the building or any
part thereof, shall be made by any occupant without securing a building permit
and an occupancy permit.
For more efficient regulation, this paper submits the following measures
for thorough consideration:
(a) Shift from “permit”
requirements (i.e. Mayor's permit) to “registration” requirements (i.e.
Business registration). The shift will cut the processing time required to
legally commence business operations. It will also prevent the City or
Municipality from acting in bad faith or in deliberately delaying the process,
because “registration” will be a purely ministerial function practically devoid
of any discretionary aspect. The shift from the permit process to the
registration process need not be for all types of businesses. For example, the
permit process can still be the adopted procedure for businesses subject to the
environmental clearance requirements.
(b) Shift from
“pre-inspection” (or inspection before approving permit or registration)
to “post-inspection” (or inspection after approving permit or
registration). The shift will substantially cut the processing time for the
permit or registration. Public safety will not be compromised because the City
or Municipality will still be required to conduct an inspection immediately
after the approval of the permit or registration. The shift in the
inspection process likewise need not be for all types of businesses. Again for
example, pre-inspection can still be chosen procedure for businesses subject to
the environmental clearance requirements.
(4) Excessive taxation
Inasmuch as each local government unit is empowered “to create its own
sources of revenues and to levy taxes, fees and charges”,[xxv] there
exists the real possibility that business enterprises will be subject to more
than double taxation of the same business actitity. This will not only
complicate the tax regime, it will also increase the cost of doing business
beyond the budgets of business enterpises.
Fortunately, the Local Government Code has foreseen this possibility and
sought it prudent to limit the kinds of taxes that may be imposed at the local
level. Thus, local government units are prohibited from imposing income taxes[xxvi], value
added taxes[xxvii],
customs duties[xxviii],
export taxes[xxix]
and taxes on goods carried into or out of, or
passing through, their territorial jurisdiction[xxx], among
others.
To support their
fiscal requirements, local government units are entitled to have “a just share ... in the national taxes.”[xxxi] This
comes in the form of an internal revenue allotment equivalent to 40% of the
collection of national internal revenue taxes.[xxxii]
For simple and
reasonable taxation, this paper recommends that the present tax regime for
local government units be retained to avoid double, triple or quadruple
taxation of the same business activity. In lieu of the imposition of new local
taxes, the internal revenue allotment system be improved to ensure that the
allotments are properly and timely released to the local government units.
This material was written ex-gratia
by Demosthenes B. Donato
for Tanggulang Demokrasya (Tan
Dem), Inc.
All intellectual property rights
are granted to the public domain.
05 September 2016. Makati City,
Philippines.
Disclaimer: The views and opinions expressed in this
material are those of the author
and do not necessarily reflect
the official policy or position of TanDem.
[xx]Makati
City – Business Permit Application Form (2010). Barangay San Lorenzo – Business
Clearance Application Form. Barangay Bel-Air – Business Clearance Application
Form.
[xxi]Pasig
City – Application for Business Permit (May 2015). Barangay San Antonio –
Barangay Clearance for Business Permit Requirements for CY 2016.
[xxiii]
Rep. Act No. 10607, Insurance Code, Sections 95 & 96.
[xxiv]
Rep. Act No. 7160, as amended, Local Government Code of 1991, Section 2.
