Conflict of law

Cebu city has been liberated from the IATF national mask mandate. The cities of Lapu-lapu and Mandaue are poised to follow suit.

Valenzuela cements its leadership role in asserting autonomy in the metropolis. In the No Contact Apprehension Policy (NCAP) debate, it fronted Metro Manila cities in implementing local NCAP systems, even against the Land Transportation Office (LTO), members of Congress and transport stakeholders.

There’ve been comparable situations in recent past where national and local policy makers differ. Rather than wait for the national government, or to protect their constituents against questionable action, LGUs have gone ahead and exercised the freedom to regulate. A few examples: local plastics bans; South Cotabato’s prohibition on open pit mining; gender neutral restrooms; Davao City’s firecrackers ban; Manila’s contraception ban; local smoking bans; the LGU led backlash against the LTO’s Motor Vehicle Inspection System (MVIS).

The complex landscape of intragovernmental relations. These latest cases evoke the dissonance that results when national and local governance initiatives collide within the same regulatory space. When a clear national policy is enforced at the expense of autonomous local action, there will be tension. For students of law, this translates to the familiar David vs. Goliath scenario of congressional statute vs. local ordinance in regulatory decision making.

In the Cebu and Mactan mask furor, Health Secretary Dr. Rosario S. Vergeire stressed the Department’s understanding that no one is exempt from the policies of the national government: “... a country or a city within a country cannot act on its own.” Press Secretary, lawyer Trixie Cruz-Angeles, however, affirms Malacañang’s respect for the independence of local governments.

In the NCAP issue, Congressmen Ace Barbers and Marvin Rillo, former LGU officials themselves, are questioning the local NCAPs on grounds of constitutionality and non-uniformity of policies. The MMDA, on the other hand, respects the autonomy of LGUs to implement them.

Past Presidents have not been as categorical in defense of national authority. When Valenzuela ordered the suspension of the NLEX Toll Plaza business permit, President Rodrigo Roa Duterte was fine with it: “you cannot come barging in and overruling them because they (LGUs) have that inherent right.” President Benigno C. Aquino, III confessed that his hands were tied at the height of the port congestion ensuing from the Manila local truck ban.

Supersession. In scenarios to resolve the conflict where regulatory power coincides, we mostly see Courts upholding the national law over the local regulation. This phenomenon of deciding them in favor of the national authority has come to be known as preemption, applying the basic postulate of supremacy of law.

We discussed this phenomenon in the journal article “Preemption in the Philippines: Illuminating an Opaque Doctrine” (Ateneo Law Journal, Volume 65, No. 4.). Preemption’s basis, in the US, is the principle of supremacy of law explicit in the U.S. Constitution itself. Art. VI, clause two provides: “This Constitution, and the Laws of the United States ...; and all Treaties..., shall be the supreme Law of the Land;...”

In the Philippines, there is no counterpart supremacy clause. Though universally acknowledged, it is merely implied from Art VIII Sec. 5 which speaks to the Supreme Court’s power of judicial review in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question...”

Express preemption. When there is explicit congressional intent that local governments have no power in a regulatory area, the Courts’ task is easy. Check whether the ordinance legislates in the area expressly withheld. If so, then it becomes a simple case of ultra vires analysis, i.e. did the local government exceed its authority to act?

A clear example is supplied by the Local Government Code. Section 133 speaks of the common limitations on the taxing powers of LGUs: “Unless otherwise provided ... the taxing powers of provinces, cities, municipalities, and barangays shall not extend to the levy of the following: (a) Income tax, except when levied on banks and other financial institutions; ... “ Here is preemptive language that cleanly displaces local authority. Hence, if LGUs insist on imposing an income tax, then it will clearly be violating the statutory provision. This is the supremacy of law principle, plainly applied.

Implied preemption. The problem is that in most scenarios, there is no clear guidance from Congress and there are no express prohibitions in the law. With nothing to contradict, do LGUs just guess? With the absence of express national regulation, the alternate argument of the adversely affected is that the conduct has been impliedly disallowed. The authority to operate private MVICs, for example, has been conferred by the LTO upon its private contractors. LTO, a national agency, having acted, the inference is that LGUs have been barred from interfering in this particular field.

This implied preemption is where things get murky. More complicated than explicit preemption, implied preemption analysis has its own judicial sub-tests: (a) implied conflict preemption - does local regulation negate the command of national regulation; and (b) implied field preemption - where because of a detailed national regulation, courts infer that congressional intent was to occupy the entire field and exclude local law.

Clearly, before any such preemption may be confirmed, an elaborate ex post analysis by the Court is first necessitated because the national and local regulatory powers may concurrently exist, precisely, without incident.

Policies in disguise. Legislative purpose is always the benchmark in preemption analysis. But the existence at all of the Court’s preemption doctrine attests to the Congressional difficulty in specifying the lower law is to be superseded or to clarify whether it displaces the same from a field or area. Courts are, thus, forced to step in, armed with educated guesses, which are really policy determinations in themselves.

Through the years, local regulatory power has vastly expanded. Focusing on the limitations of supremacy of law, which makes LGUs mere creatures of the state, fails to grasp the legal and political nuances of current national vs. local relations.