In my last column I explained the importance of municipal autonomy with regards to citizen participation in government, deepening our democracy, and for the more efficient governance of Puerto Rico. I pointed out that this was not well understood, and that the legislature, the judiciary, and the executive branch are constantly chipping away at the autonomy granted to the municipalities during my last term as governor.

I was glad to see last week that Silva Pura’s re engineering plan for a more efficient government includes turning over maintenance for schools and tertiary roads and certain other tasks to the municipalities. This is a step in the right direction, but if we are to think strategically as to providing more efficient government on a long term, continuing basis, we must address the flaw in our Constitution regarding municipal autonomy. As I said in my last column, the foremost expert on government at the time, Dr. Carl J. Friedrich, who was an adviser to the convention, pointed out that this was the most important flaw in the Commonwealth Constitution. In this and succeeding columns I will go into the nature of the constitutional amendment that we need.

In order to provide for a more effective democracy the people of the municipalities should be empowered by the Constitution to govern themselves on local affairs through autonomous municipal governments. This would do away with the centralist doctrine that municipalities are creatures of the Commonwealth government. The amendment should provide for elections to be held every four years to elect the mayors and municipal legislators. These elected officials should no longer be removed for improper conduct by the governor by a commission of central government, as they are now. The amendment should provide for removal in case of improper conduct, through legal proceedings brought before the courts of the Commonwealth.

Having established that the source of power for the municipal governments is the people of the municipality and provided for elections every four years, the scope of municipal power must be defined in the Constitution. The principle of subsidiarity should be the criteria to distinguish between local affairs that should be handled by municipal governments and island wide affairs that should be handled by the central government. The principle of subsidiarity –that problems should be addressed to by the unit closer to the people– holds that when municipal government has the resources, or can be provided with the resources, to attend more efficiently to whatever matter, municipal government should have the power to do so, and the subject matter concerned should be deemed local.

If the subject matter needs to be attended in a uniform way beyond the borders of any one municipality and requires the resources to deal with it efficiently on a regional or island wide level, then central government should attend to it. The legislature would continue to have the power to decide what matters are not local and thus the responsibility of central government. The amendment, however, would require the Legislature to respect the principle of subsidiarity in making that decision.

Let us take an example to see how this would work. Today taxi service within the municipalities is regulated by central government through the Public Service Commission. Suppose that the Constitution is amended providing for municipal autonomy over local matters with the principle of subsidiarity as the criteria to distinguish matters of a local nature. Let us further suppose that the legislature of the municipality of Ponce finds that taxi service in Ponce is grossly inefficient and approves a municipal ordinance regulating taxi service in Ponce, requiring municipal licensing of taxis, establishing an office to handle these matters, and appropriating the funds to run that office. The Public Service Commission then sues the municipality to annul the ordinance because it is contrary to the Public Service Law administered by the Commission.

Once the amendment is passed, the courts would have to apply the principle of subsidiarity in order to resolve the conflict between Ponce’s municipal ordinance and the Public Service Law. Applying that principle, the courts would uphold the Ponce municipal ordinance because taxi service does not go beyond municipal boundaries and the municipality has the administrative capability to regulate and license taxi service within the city.

This example also sheds some light on how centralized our government is. I know of no state of the Union where taxi service or other local services are regulated by the state government for the whole state. But in Puerto Rico, we do not even think that such a matters should be regulated by the municipalities. Yet the needs for these services are felt locally by citizens who are not empowered to deal with the problem locally. Although there are regional offices of the Public Service Commission and other agencies, decisions are made in San Juan. Thus this is no effective democratic accountability. Centralization has bred grossly inefficient government in Puerto Rico. Municipal autonomy would represent a great leap forward in better governance for this island.

The autonomic framework set out by the principle of subsidiarity will not automatically alter the distribution of competencies now existing between the central government and the municipalities. At the beginning, the jurisdictional scales will maintain the same balance. But, given the authority to provide solutions to local problems now poorly attended to by central government, the municipalities will begin to take initiatives to address their own problems because there will be increasing pressure from their residents to do so. These initiatives will usher in a process of readjustment of competencies in different degrees between the different municipalities –large or small– and the central government. The adjustments will take place through tolerances, express agreements, legislation or litigation. In the end and given other changes that I will explain in future columns, we would have a better functioning democracy in Puerto Rico.

NOVEMBER 5, 2006
Rafael Hernández Colón



Author: Lcdo. Rafael Hernández Colón
Published: September 11, 2014.

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