The BBL and the LGC

Regardless of the fate of the Bangsamoro Basic Law (BBL), I believe this groundbreaking bill should serve as strong motivation for lawmakers to finally confront the inadequacy of the decentralization framework established by the Local Government Code (LGC).

The Philippine Development Plan 2011-2016 states:

“Despite almost two decades of implementation of the 1991 [LGC], … local governments still face various challenges in the exercise of their devolved service delivery functions.” Particularly, “[t]he confused and overlapping performance of functions compromises the lines of accountability for local services.”

A very good example here is our public health system.

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. This duplication is all well and good if the conversation is about who should undertake the delivery of this service.

The problem arises when the topic of discussion is the objectionable state of healthcare here. Who should assume the blame for our dissatisfaction? There is no easy answer to this question. The reality is there is no single institution that can be held accountable for failures in the delivery of this particular public good.

It behooves our lawmakers, therefore, to take note of one of the more innovative reforms in the BBL. This is the explicit delineation of power among the two levels of government found 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.

But I am not certain on the constitutionality of the “Concurrent Powers” category because this is not supported by Article X of the Constitution. The division of powers allowed by the Constitution pertains only to the exclusive powers of the regional government, the scope of which is articulated in Section 20. And to the residual powers of the national government under Section 17, which states that all powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the national government.

Nonetheless, I still consider the clarity and specificity of the allocation of government functions in the BBL a benchmark that should be incorporated in the LGC. The fact is there are government functions that must clearly fall within the jurisdiction of the local government. Here are some examples: 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 mandates that cannot be devolved to local governments at all. Usually these pertain to matters requiring uniform and statewide regulation such as national defense, peace and order, foreign affairs, currency, postage, etc.

But there are public services that have proven to be beyond the scope of local government but whose delivery still has to be decentralized. This is where the possibility of overlapping designations comes in, as clearly illustrated in the public health system.

I do not support the creation of a third category (i.e., Concurrent Powers) for the allocation of government responsibilities as a way to address this particular nuance in the delivery of public services. Because apart from its doubtful constitutionality, doing this can only lead to confusion. And given our own experience with public health management, it also gives officials a handy excuse to avoid accountability. On this score, we may have to rethink how the very concept of decentralization itself is understood.

Section 25 of Article II of the 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 or impliedly prohibit its application within the ranks of the national government.

Indeed, the notion in Section 2 of the LGC that the process of decentralization “shall proceed from the national government to the local government unit” does not actually capture the full meaning of this concept. Decentralization can likewise entail the process of shifting administrative responsibilities from within the national government—i.e., from central departments to regional administrative branches.

Let us now apply this streamlined decentralization framework specifically on public health management and clearly classify this function as a national-government responsibility. Thus, the mandate to govern the overarching health management system shall be placed squarely on a national agency that can be designated here as the Health Service Commission.

This national-government office shall have regulatory and policymaking functions. But 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.

Furthermore, in the true spirit of decentralization, the Health Service Commission will be totally unlike the DOH because it shall operate autonomously from Malacañang. Similarly, the provincial branches shall also function independently of the gubernatorial office.

Needless to say, the regular civil service rules and antigraft and corruption laws will still be applicable. And more importantly, these offices will still be subject to legislative oversight by Congress.

In sum, the accountability for the delivery of public healthcare services becomes crystal-clear when it is structured according to the streamlined decentralization framework. I daresay that such a streamlining can actually lead to a drastic improvement in the delivery of this public service to all Filipinos.

Indeed, we should not forget that the ultimate aim of decentralizing government is to deliver basic services more efficiently and effectively. Unfortunately, the overlapping responsibilities and the lack of clarity concerning the local government’s powers and functions in the LGC have prevented this from ever happening here.

And worse, such an unfortunate outcome can be seen not just in the current sorry state of public healthcare but also in the delivery of other vital services such as public transportation, traffic administration, solid waste management, and disaster risk management.

But addressing all of these anomalies is completely in the hands of our lawmakers. For the BBL stands as unequivocal proof that responsibilities between the central and local governments can still be properly and clearly delineated in a local autonomy law.

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.