Chapter 9 – Local Administration and Administrative Decentralization
Rationale of Article 89 – Local Councils
Article 89 is established to ensure that the administration of affairs close to the daily lives of the people is not directed solely from the center of the country, and that the people of each area themselves have a direct role in local decision making. The express reference to the “provincial, city, and village councils” is intended to ensure that local administration at all principal levels, from province to city and village, possesses a clear and lawful representative institution, and that local affairs are not entrusted without mediation to appointed and centralized structures. The emphasis on the election of the councils by the “direct, free, equal, and periodic vote of the people of that same area” is intended to guarantee popular legitimacy, local rotation of power, and the prevention of the emergence of closed and unaccountable local management. This part seeks to make clear that the local institution must derive its authority from the people of that same locality, and not from appointment from above, the influence of central organs, or opaque networks of power. The direct character of the vote preserves the link between the council and the people. The free and equal character of the vote prevents discrimination and political engineering. Its periodic character prevents the persistence of local power without accountability. The phrase “within the limits of the law” also exists so that local administration does not turn into disorder, conflict of jurisdiction, or unregulated autonomy. The councils must possess real authority in local affairs, but that authority must be exercised within the framework of the Constitution and ordinary law, so that both the unity of the country’s administrative system is preserved and the boundary between local affairs and national affairs remains clear.
The description of the councils as “elected institutions for the administration of local affairs” deliberately goes beyond a merely consultative title. The purpose is that the councils should not be only forums of opinion or electoral ceremony, but should have a real place in the actual administration of local matters. At the same time, because this administration is defined within the limits of the law, the councils become neither rivals of the national government nor instruments of administrative fragmentation. Rather, they remain the legitimate and popular arm of local administration within a single country.
In summary: Article 89 seeks to ensure that local administration is both popular and law governed. By this Article, local affairs are removed from the monopoly of the center, yet they do not fall outside the framework of the general order of the country. The result is greater public participation, greater accountability of local institutions, and a reduction in the unnecessary concentration of power.
Rationale of Article 90 – Authority of Local Administration
Article 90 is established to ensure that the administration of matters close to the daily lives of the people is carried out, to the greatest extent possible, at the same level where the need, the issue, and its effects arise. The phrase “local affairs and daily services shall, to the greatest extent possible, be administered by elected local institutions” is intended to ensure that decision making concerning local issues is not unnecessarily drawn to the center, and that matters which are local in nature are administered at that same local level and with closer knowledge of the real needs of the people. This approach both increases administrative efficiency and strengthens local participation and responsibility. At the same time, Article 90 does not seek for decentralization to lead to disorder, fragmentation, or the weakening of the national government. For this reason, the phrase “the limits of the authority of these institutions shall be determined by law” is included so that it remains clear that the authority of local institutions is real, but not without boundary or restraint. The law must define the boundaries of jurisdiction so that conflicts between local institutions and the government, or among different levels of administration, are reduced to the minimum, and so that each level knows the sphere within which it is the decision maker.
Likewise, the express statement that this authority must not impair the “unity of the country, the supremacy of national law, or the authority of the government in the administration of national and provincial affairs” exists in order to preserve the cohesion of the country and prevent local administration from becoming unregulated autonomy. Article 90 seeks to establish a balance between two dangers: on the one hand, excessive centralization that draws all matters to the center, and on the other hand, excessive fragmentation that weakens lawful authority and national coordination.
In summary: Article 90 states that what is local should, to the greatest extent possible, be administered locally, but within the framework of the law and without injury to the unity of the country, the supremacy of national law, and the authority of the government in the administration of national and provincial affairs. The purpose of Article 90 is to create an administration that is closer, more efficient, and more accountable, without harming the unity of the country.
Rationale of Article 91: Distribution of Local Revenues and Financial Resources
Article 91 is established to ensure that local administration is not entrusted to local institutions merely in appearance, but that they also possess the real capacity to perform their duties. If a local institution has authority but lacks money, resources, and financial means, local administration remains nominal and dependent. For this reason, by expressly referring to the “distribution of national and local revenue”, this Article seeks to make the financial relationship between the center and local institutions clear, orderly, and just. The emphasis that this distribution must be “just, transparent, lawful, and subject to review” is intended to prevent discrimination, patronage, and the political punishment or reward of different regions. Public resources must not be distributed on the basis of influence, connection, or hidden expediency. Transparency makes possible public oversight and auditing. Lawfulness prevents discretionary and ad hoc decisions. Being subject to review keeps open the path of objection and correction. The phrase “local institutions must enjoy sufficient financial resources proportionate to their lawful duties” is intended to establish proportionality between obligation and capacity. Every institution responsible for providing services, administration, or the execution of a duty must possess resources that make the actual performance of those duties possible. Otherwise, the central government may transfer responsibility without providing financing, shift the burden of administration downward, yet keep real power in the center. This Article is designed precisely to prevent that hidden concentration.
Likewise, the rule that “the imposition of a new duty upon local institutions without providing a proportionate financial source is prohibited” is an important safeguard against administrative and financial abuse. This part prevents the government or the legislature from placing new duties upon local institutions without funding their cost. Otherwise, local institutions will either become paralyzed or will be forced to increase the financial burden on the people, reduce the quality of services, or become completely dependent on the center.
In summary: Article 91 seeks to ensure that local administration is not merely a title and a responsibility, but that it has real financial support. By this Article, the distribution of “national and local revenue” must be carried out on the basis of justice and transparency, local institutions must have “sufficient and proportionate” resources, and no duty may be imposed upon them without financial provision. The ultimate aim is a local administration that is real, accountable, and not dependent upon the discretionary will of the center.
Rationale of Article 92 – The Governor and Local Administration
Article 92 is established to create a balance between local administration and the authority of the government.
In a unified decentralized system, neither should all affairs be concentrated in the center, nor should provincial administration be separated from the national government. For this reason, by expressly stating that the “Governor is the highest executive authority of the government in the province”, this Article makes clear that the government has, at the provincial level, its own official, responsible, and accountable representative, and that provincial administration does not fall into duality of command or fragmentation of authority. The phrase “within the framework of the law, responsible for the implementation of public policies, administrative coordination, and supervision over executive bodies in the province” is intended to ensure that the role of the Governor remains precise and limited. The Governor must be the executor of public policies and the coordinator of executive bodies, not an independent local ruler. This part prevents the office of Governor from becoming a center of personal, political, or extra legal power in the province. At the same time, the government can, through the Governor, preserve administrative coherence and the uniform implementation of public policies throughout the country. By contrast, the sentence “the administration of local affairs and local services, within the limits of the law, belongs to the elected local institutions” is included so that the Governor does not take all matters into his own hands and so that elected local institutions are not pushed to the margins. Matters close to the daily lives of the people should, to the greatest extent possible, be administered at that same local level. Thus, this Article both secures the position of the government in the province and recognizes the real sphere of local administration.
The final part, which states that “the system of local administration must be organized in such a way that both the effectiveness of the government and the unity of the administration of the country are preserved, and that concentration of power and corruption are prevented”, is the anti authoritarian core of this Article. This phrase seeks to restrain two dangers at the same time: on the one hand, disorder and weakness of government, and on the other hand, excessive concentration of power in the center or in the hands of provincial authorities. The desired result is that the country be administered in a unified and orderly manner, while the administration of the province and local affairs does not become an instrument of domination, patronage, and monopoly of power.
In summary: Article 92 is intended to build a measured balance between the national government and the elected local institutions. Under this Article, the Governor remains the representative and coordinator of the government in the province, while the administration of local affairs and local services is, in its proper place, entrusted to the elected local institutions. The ultimate purpose is to preserve the unity of the administration of the country while preventing the concentration of power and corruption.