To have and to hold

It has been a continuing struggle for local government units (LGUs) to defend their Internal Revenue Allotment (IRA). LGUs need the resources to bankroll their expanded roles as partners of government in nation building. The 1987 Constitution, implemented by the 1991 Local Government Code (the Code), made sure they have the means to effectively cope with the hurly burly of mandated decentralization. To have enough and to hold it immediately.

The Constitution mandates that “local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” But though the provision referred to national taxes, the Legislature, via the Code, limited the base of the LGUs’ just share to purely internal revenue taxes only.

For the past 26 years, both the Legislative and Executive branches have been reluctant handmaidens to this emblem of autonomy. We have witnessed episodic bouts of Presidential and Congressional separation anxiety from monies properly belonging to our provinces, cities and municipalities. President Fidel V. Ramos withheld 10 percent of the IRA to fund his own national agenda. The Senate in the 2000 budget tried placing P10 billion of the IRA as an unprogrammed fund in the GAA, its release conditioned on collections exceeding revenue targets. Today we are seeing Budget Secretary Benjamin Diokno challenging the Supreme Court to overturn their decision in Mandanas v. Executive Secretary.

LGU home court. Time and again, the Supreme Court in cases like Alvarez v. Guingona and Pimentel v.

Aguirre saved the day for our LGUs. In Mandanas, the Court set things straight when it called out Congress for limiting the LGU share to internal revenue taxes only. So unconstitutional. The base should also include: Customs tariffs and duties; percentages of: the VAT, national taxes collected in the ARMM, national taxes collected from the exploitation and development of national wealth, tobacco excise taxes, franchise taxes paid by the Manila Jockey Club and the Philippine Racing Club. Good news for LGUs.

To the national government, bad news. Sec. Diokno worries about the decision’s fiscal impact on our deficit position. In 2019, LGUs would get an additional P160 billion. If retroactively applied, estimates go as high as P1.5 to P6 trillion dating back to the Code’s effectivity in 1992. It would compromise the Build3 program, downgrade our credit ratings and adversely affect international confidence.

But Mandanas, by its own terms, applies prospectively. Bad news for LGUs. Across the country, they all had plans for the prospective windfall of a retroactive entitlement. Poof! Governor Mandanas and Co. are filing their own reconsideration of that portion of the decision.

Benjamin Franklin. Sec. Diokno is familiar with the terrain. He has been a player in almost all local v. national IRA battles. Already, he is raising the spectre of unmanageable public sector deficits of up to six percent of GDP. Well that could be an innovative filibuster. The Code allows the downward adjustment of IRA of up to 10 percent of current levels if that happens. We will have a mexican standoff: the increase in IRA creates the very condition that warrants a decrease in IRA.

Senator Franklin Drilon’s moderating wisdom would not hear of any unmanageable deficit declarations. We will find the money, he promised. Scour the budget, including the intelligence funds if needed. The term limited Sen. Frank would have guaranteed his place in 2022 as No. 1 Senator.

The brilliant Sec. Diokno will always be an asset to any President he serves. The man is a goliath who dared defy his President’s Federalism initiative and stonewalled Congress on his cash based budgeting reform. But he may never know the fulfillment of serving in elective national office as he will forever own the title of LGU public enemy no. 1.

Charlie by any other name. The celebrated case of the Church vs. Carlos Celdran continues to captivate the country. The fascination is understandable, given the competing values of free speech and the free exercise of religion.

The killer arguments against the challenged law and the conviction are: (1) the statute is void for being vague. This derives from the due process rule that criminal laws should be written explicitly. People should not be punished for conduct that not even persons of common intelligence can comprehend to be prohibited.

“Anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony, shall perform acts notoriously offensive to the

feelings of the faithful.” The problematic passage of the law is the last portion. Justice Jose P. Laurel openly feared that using the sensibilities of a particular denomination as a gauge of what is actionable would be too subjective. This would render the application of the law partial and arbitrary.

(2) It limits freedom of expression. The Constitution guarantees that free speech shall not be abridged. Here, we are witnessing not just any ordinary expression but actual political speech being censored. “The interest of the State is to protect the same, not suppress it” according to Solicitor General Jose Calida, moving to reconsider Celdran’s conviction.

Third (3), this law is old. It dates back to the Spanish colonial period when there was only one State religion which the law was animated to defend and protect. Archaic legislation should have a shelf life. More so when its continued existence gives unwarranted special treatment to a particular group.

And, fourth, (4) precedent was ignored. The Court earlier in People v. Baes relied on Viada’s concept of notoriously offensive acts: “directed against religious practice or dogma or ritual for the purpose of ridicule; the offender, for instance, mocks, scoffs at or attempts to damage an object of religious veneration …” Celdran’s Damaso was nothing of the sort. It was but a polemic against priests and their active meddling in the making or unmaking of government policy.

Equally compelling arguments in favor of the law and the conviction in future columns.