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Davids and Goliaths

SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - February 6, 2021 - 12:00am

As quickly as private motor vehicle inspection centers (PMVICs) sprouted up, so have the complaints against them mounted. They’re here pursuant to a DOTr late December 2020 issuance implementing the Land Transportation Office (LTO) stringent 72-point testing checklist for vehicle road worthiness. Salutary.

Unfortunately, these PMVICs, contracted by the LTO, and all the myriad tests and requirements they impose, can’t seem to integrate with the Land Transportation Management System. Yet, incredibly, the DOTr and LTO have pushed forward in a slapdash manner, without regard to anyone’s convenience. Senator Grace Poe-Llamanzares and Senate President Pro-Tempore Ralph Recto are speaking out for the motoring sector stupefied by this goofy scheme.

The city of San Fernando in La Union has actually suspended operations of their PMVICs. The provinces of Ilocos Norte, Oriental Mindoro and the cities of Dagupan and Iloilo, among others, are poised to follow this pushback.

Loading the slingshot. More than the “inspection” the senators will dish out, it is this incipient revolt of the local government units (LGUs) that bears watching. These showdowns are inevitable in multi-level governance contexts. In countless cases, national and local governmental power clash. Even the withdrawal of business permits which our good friend Philippine STAR columnist Cito Beltran has rechristened a “new weapon” is really just an old weapon polished to sheen.

In matters of licensing and compliance with LGU requirements to do business, officials are well within their power to dock even national government agencies or their agents, concessionaires, contractors. President Duterte himself, legendary mayor of Davao City, acknowledges this.

Do you hear the people sing? Situations like the “cry of San Fernando” and the city of Valenzuela vs. NLEX Corporation toll stand-off are emblematic of the tension when the regulatory power of the spheres collide. Plastic straws had long been regulated by LGUs before being added this month to the national government’s non-environmentally acceptable product (NEAP) list. Across the country: banning open pit mining in South Cotabato long before the National Government did; same sex bathroom initiatives; the different smoking regimes in cities; Manila’s ban on contraceptives under mayors Lito Atienza and Alfredo Lim. Justice Louis D. Brandeis popularized the metaphor of states (and local governments) being laboratories of democracy: “A single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

Of course, the expectation will always be for local to defer to national at the time of reckoning. LGUs, after all, are mere creations of Congress (though this is contentious, given that our barangays and cities like Manila far predate any idea of a Philippine nation state and its legislative department).

As Cito Beltran points out, our LGUs have become more assertive of their rights. And there are increasing areas of tension, specially when local regulations spill over to neighboring jurisdictions. In metropolitan areas, one solution to these externalities would lie in the coordination of policies undertaken by a higher layer of governance. We have that, in theory, in the NCR with the Metropolitan Manila Development Authority. But you can only coordinate if there is a surrender to coordination.

Inevitably, there may be matters touched upon by LGUs not expressly forbidden to them but which, at the same time, are not provided for in the national statute books. Congress has plenary legislative power but, until they’ve legislated for every possible need, there will be scenarios where the larger community gets blindsided by local regulations.

A favorite example is the Manila truck ban ordinance in 2014, the port congestion that ensued and the adverse effect on the rest of the nation. Famously, then President Aquino conceded the authority of the City of Manila to regulate the use of its streets. He had no solution. His reasoning? His hands were tied.

Governance can’t wait. This is the context for the emergence of the relative new constitutional doctrine of preemption. The same is rarely invoked in local constitutional battles but it has become a flashpoint in the second half of the 20th Century in US Federal vs State relations. A cry of preemption would nullify the local issuance if the Courts were to divine this as what Congress intended.

A premise for this would be the principle of Supremacy of Laws. Such a clause is not explicit in our Constitution but the concept is universal. If the LGU conduct has not been expressly prohibited by Congress, the alternate argument would be that it has been impliedly disallowed. The authority to operate PMVICs, for example, has been conferred by the LTO upon its contractors. The inference is that LGUs have no business interfering in this particular field.

So can it interfere if not expressly forbidden? The tight leash on the powers of LGUs can be seen in this jurisprudential understanding of its limits, known as Dillon’s rule. They possess and exercise the following powers only: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation – not simply convenient but indispensable.

However, this has been tempered by the Local Government Code with the favorable lens of liberal interpretation. “Any provision on a power of a local government unit shall be liberally interpreted in its favor, and in case of doubt, any question thereon shall be resolved in favor of devolution of powers and of the local government unit.”

With the new activism or localism, faceoffs like these will inevitably be reached by our Supreme Court. Increasingly, the sword of preemption it has wielded once or twice in the past, though not specific in language, may come to be drawn. It’s interesting to anticipate how these governance issues are resolved to the benefit of all.

Thank you, gentlemen. We are diminished by the passing of two great statesmen whose contributions to nation building are beyond measure. Senator Victor San Andres Ziga, the gentleman from Bicol, and Senator John Henry R. Osmena, gentleman from Cebu. Our condolences to their families.

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