The right to elected local self-government

Philippines

The Philippines has historically been a decentralised state, due to a combination of factors. Hutchcroft contrasts the “centralising ethos” of Thailand's prefectural reforms in the late 19 th century with the lack of any such history in the Philippines (Nelson 2004, chap.

Given the ubiquitous problem of local government finance, s.7 of Article X is of special interest:

Local governments shall be entitled to an equitable share in the proceeds of the utilisation and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.²⁰

These local authorities and the preservation of their boundaries are also protected by a local plebiscite requirement regarding any proposed changes.

Thus, the Philippines’ Constitution effectively recognises a right to the continuous existence of local authorities, to local autonomy in power and finance, and to a supportive and developmental national policy on local government. Currently, there are proposals to convert the Republic into a federation. Each of the proposed models would render the Republic even more decentralised than it already is. But it is not clear how this development (if it comes to pass) will affect local government (see, e.g., Malaya 2017).

Thailand

Unlike the Philippines, Thailand has historically been highly centralised as a prefectural state since the late 19th century, when Bangkok asserted its power over the Lanna Kingdom in the North and the Malay provinces in the South (Harding and Leyland 2011, 123). A process of progressively decentralising powers and providing for local democracy at every level has occurred under the recent democratic constitutions (i.e., those established in 1997, 2007, and 2017). Neither Thailand’s historical disposition towards centralisation nor the oscillation between military and civilian government since the end of the absolute monarchy in 1932 has interfered with this process. The process contributes to nation­building in two ways.

First, it encourages the practice of democracy under the Thai mantra of “the democratic regime with the King as head of state.”²¹ The development of local government (and also provincial government) is indeed a state duty,²² the process of which has been continuously implemented since the enactment of the Decentralisation Plan and Process Act 1999.

Secondly, the 2017 Constitution specifically provides for the preservation of local communities, heritage, cultures, and customs. This is a particularly important factor in the most ethnically diverse areas of Asia, such as Northern Thailand. This is expressed as both a democratic right of local communities and as a duty of both state and citizens.²⁵

Thailand also has a complex and democratic system of provincial and local government (see Table 1). The functions exercised by these different types of authority are typical in that they include matters close to the land and the environment.²⁶ What is slightly unusual in Thailand is the power to provide social welfare. Health services are provided nationally, but welfare is a local function in the absence of any national scheme. Development coordination is a function of provinces. All levels of provincial and local government are elected. Even tiny villages (mooban) elect two representatives to the local tambon as well as their village heads (kamnan), from whose number the tambon head is elected. In practice, the restrictions placed on how local authorities can spend their limited revenue, as elsewhere in Asia, prevent local government from being truly autonomous. For example, the provincial governor must approve local budgets. Local authorities are highly dependent on higher levels of government, even though most of their funding is raised locally. Central government grants are tied to specific programmes and are mostly dispensed in a politicised and unsystematic manner (Harding and Leyland 2011, 131ff.).

Indonesia

Indonesia represents the clearest case of urgent political necessity for decentralisation, as a way to disaggregate an oppressively centralised developmental and corrupt state. In addition, the danger (as it was seen in 1999) of the Republic breaking into several units needed to be averted through deep and democratic decentralisation to regencies and cities. After almost 20 years of this process, provinces, regions, cities, counties, and villages have all gained enhanced powers, and all now elect their leaders. Decentralisation must be judged a success in terms of its objectives, despite the fact that all has not gone smoothly or successfully (see Butt and Lindsey 2012, 185ff.).

Two laws passed in 1999 (i.e., the Regional Autonomy Law and the Fiscal Balancing Law), which commenced the process, were provided constitutionally to ensure their entrenchment. This was done in the 2000 amendment to the Indonesian Constitution, through Articles 18, 18A, and 18B (Butt and Lindsey 2012, 158ff.). Under these provisions, new Regional Autonomy and Fiscal Balancing Laws were also enacted in 2004. They returned some powers to the centre in a modest form of re-centralisation. It is clear from these Articles that in Indonesia, there is a clear constitutional right to democratic local self-government. Under Article 18, Indonesia is divided into provinces, which are in turn divided into regencies and cities (see Table ι). All of these entities are guaranteed the wide-ranging autonomy of their governments under elected leadership and have their own elected representative bodies and legislative powers.

The reforms did not stop there. A new assembly of regional representatives was created (the Dewan Perwakilan Daerah [DPD] or Assembly of Regional Representatives) to ensure specific representation of regions in the legislative process. These representatives are also members of the upper house (the Majelis Permusyawaratan Rakyat or People's Consultative Assembly), which also comprises of the lower house members (Dewan Perwakilan Rakyat [DPR] or Assembly ofPeople's Representatives). Although the DPD does not have the power to make its laws, it can provide input into the legislative process and present bills to the DPR (Butt and Lindsey 2012, 58). Local elections fall under the Election Commission. Local electoral disputes, of which there have been many, are dealt with by the Constitutional Court (185ff.).

Opinions vary as to the success of Indonesia's decentralisation efforts. Initially, some confusion reigned as decentralisation started to occur in advance of legal and constitutional provisions. If we are to judge by enhanced democratisation, the reforms have been successful. A similar judgment is warranted if we look at the outcome of maintaining the integrity of this diverse republic.

Lindsey and Butt conclude that the 1999 Law on Regional Government “radically reconfigured the Indonesian polity, transforming it from one of the world's most authoritarian and centralised to one of its most democratic and decentralised” (Butt and Lindsey 2012, 161). The best way of indicating the enormous breadth of decentralised powers is to list the powers reserved to the central government, as the rest remain with regional governments. These powers include foreign affairs, defence, security, judicial affairs, monetary and fiscal policy, and religion.²⁷

Overall,Indonesia'sdecentralisationhasnotbeenperfectlyimplemented or realised and can be criticised for allowing many opportunities for local corruption. However, corruption is a national (rather than just a local) problem (Butt 2012, 8; Nordholt and Klinken 2007). Given the dire predictions in the late 1990s of Indonesia's imminent fragmentation and the demise of its young democracy, decentralisation must largely be seen as a considerable success.

Taiwan

Since Taiwan embarked on a transition to a multi-party democratic system, there has been a parallel development of local self-government. This process was reportedly started in 1954, with the Outline for the Implementation of Local Self-Government in Every City and County of Taiwan. However, according to Yeh Jiunn-rong, local self-government was “make- believe,” due to Kuomintang manipulation of local elections, despite an expansion of local autonomy in the 1960s. This changed with Taiwan's democratic transition from 1990 onwards (Yeh 2014, 44). In 1990, the Council of Grand Justices (now Constitutional Court) in JY Interpretation No. 260 held that local governments had no power to legislate under the Constitution. This problem was resolved by a 1992 constitutional amendment, creating Additional Article 8 of the ROC Constitution, which guarantees both legislative power and a right to elected (instead of appointed) local governments. These rights were implemented by the Self-Governance Act for Provinces and Counties²⁸ and the Self­Governance Act for Special Municipalities. Both were passed in 1994, swiftly followed by the first local elections of governors and mayors in December 1994. A further statute, the Local Government System Act 1999, and the upgrading of five cities to special municipality status under revisions to the 1999 Act completed the present system of local government. There are now six special municipalities, 13 counties, and three cities. Under those are 368 sub-divisions, comprising 164 districts, 122 rural townships, 38 urban townships, 14 county-controlled cities, 24 indigenous mountain townships, and six indigenous mountain districts. It is noteworthy in this story that the first party created in opposition to the Kuomintang, the DPP, was created in 1986, at the cusp of democratic change. The DPP gained its first victories in local elections. Mayoral elections, especially in Taipei, have proved a major arena for party politics in Taiwan, and the Constitutional Court has mediated conflicts between central and local governments.²⁹

These examples indicate that in many parts of Asia, democratically elected and centrally supported local government is well entrenched constitutionally. Indeed, it might well not be an exaggeration to say that in such instances, local democracy is as deeply entrenched as national democracy.

The question then arises, how does local government relate to central government? We now turn to this topic.