Suddenly I see people who push for Anarchy and Decentralization talking about Laws and governance and contracts and codes and and this and that when the whole idea of Decentralization is not to have any of these things.
Laws ? Contracts ? Governance ?
WTF ?
There is no Law or rules in Anarchy. Is there ?
Who decides the Law ? Who controls the Law ? Who administers the Law ?
The Community ?
How is that done ?
Constitutional, Legal and Regulatory Framework in a Decentralized World.
Constitution, laws and regulations codify the formal rules of the game by which a decentralized system is supposed to function. Structurally, the desirable architecture of these rules is quite straightforward:
the constitutions should be used to enshrine the broad principles on which decentralization is to operate, including the rights and responsibilities of all levels of government; the description and role of key institutions at central and local levels; and, the basis on which detailed rules may be established or changed.
one or more laws should define the specific parameters of the intergovernmental fiscal system and the institutional details of the local government structure, including, key structures, procedures (including elections), accountabilities and remedies; and,
a series of regulations associated with each law should interpret and describe in detail the practices and measures by which the related law will operate. Laws that deal with tasks that are shared between national and subnational governments should include sections on intergovernmental relations.
Substantially greater detail and specificity is provided in moving down this three platform architecture from the Constitution to Regulations. Conversely, greater difficulty and a higher degree of authority (e.g., Minister, Parliament and Constitutional Assembly) is required to change the provisions when moving up from Regulations to the Constitution.
These aspects of degree of difficulty and locus of authority to effect changes are important factors in determining where in the architecture particular aspects of the decentralization system are defined and the relative specificity of those definitions. The rigidities and flexibility established in this structure have important implications for the management of a decentralized system.
The placement of an item may be the result of a consensus, but often is the outcome of sometimes difficult negotiations between competing interests. Those concerned with macro stability, for example, may wish to have intergovernmental fiscal rules be a matter for regulation under the Minister of Finance, so as to give that ministry maximum flexibility in public expenditure management. Local government advocates, in contrast, may argue (as they did, successfully, in Brazil) for these fiscal distributional rules to be enshrined in the Constitution. In Uganda, the purposes and mechanisms for transfers are specified in the Constitution along with a formula for determining the minimum size of the pool from which block grants are to be distributed; the details of the distributional formulae are the subject of regulations.
As decentralization is a complex social experiment a good case may be made for there to be more flexibility in the ability to change the specificity of implementation instruments, while enshrining the political and philosophical principles in the Constitution and the operating structures in the laws.
In addition to "substantive" law mentioned above, a country’s "procedural" laws can have profound impacts on the success of decentralization efforts. For example, when local expenditures must be "pre-audited" by a central authority, rigidities are introduced which make the benefits of decentralization more difficult to achieve. When reviewing the legal framework for decentralization, it is not sufficient to examine decentralization specific laws -- other laws which mandate aspects of service delivery, civil service, budgeting and so one must also be considered to ensure a consistent approach.
Treatment of key issues in the legal and regulatory framework will be shaped by whether the governmental system is unitary or federal. Under some federal systems, for example, India and Canada, local governments are completely under the authority of the State/Provincial level governments. The Federal government is thereby limited in the relationships it may establish with the local level and must seek to affect local behavior and outcomes through the states/provinces. A decentralization policy such as India is trying to establish is significantly complicated by this factor.
Some unitary systems may exercise extremely centralized control over local governments. In Indonesia, the Ministry of Home Affairs has had the authority to appoint (and remove) mayors and even village heads. The structural impediments in designing a decentralized system in this context are few, but that does not mean that the process of instituting such a system is without critical hurdles. Indonesia has had decentralization legislation on its books since 1974; the process there remains far from completion.
As with other key aspects of decentralization, the legal and regulatory framework will be tailored to country circumstances. Nevertheless, there are a set of issues this framework may be expected to address. Those of particular interest to the work of the Bank include potentially, the classification of local governments within the tiers established under the Constitution; the broad organizational structures and their roles and responsibilities; terms of office, operating powers, procedures and limitations of the political leadership, distinct from the civil service; the degree of autonomy of personnel policies and administration of local governments; the taxing and fiscal administration authority of local governments; the borrowing authority and capacities of local authorities; the budgeting, expenditure management, accounting, auditing and reporting requirements; service provision and delivery authority; and, the mechanisms for citizen participation and voice.
The legal and regulatory framework should also be designed to recognize differences in management capacity. Assignment of functional responsibilities – for example provincial capital, designated growth center, etc. often implicitly recognizes varying capabilities of municipalities, but a more dynamic framework which recognized "capacity" based on performance over time would be more desirable in the long run. Matching degree of autonomy and privileges to a set of performance indicators – which might include total expenditure, degree of self-sufficiency (i.e., proportion of own revenues to total), budget management performance (i.e., absence of deficits), and service delivery performance (i.e., client surveys) – would allow the legal and regulatory framework to adjust for changes in local capacity. The appropriate time period for reassessments and indicators would need to be linked to country circumstances as well as the specific details of the decentralization framework.
Among these several issues, five warning flags (selected from a potentially long list on the basis of downside risks) may deserve special attention.
Issue 1: Local governments at the same nominal level and their capacity
Issue 2: Local government borrowing and the capacity to repay
Issue 3: Local government laws inclusive to decentralized functions
Issue 4: Voting democracy versus citizen participation and voice
Issue 5: Terms of office for local political leaders and the issues of authority
and accountability.
The disconnect between the formal rules and actual practice regularly observed in many countries is itself cautionary about the design and implementation of legal and regulatory systems. Ambiguity and complexity create openings for conflicting interpretation and resulting confusion. One agreed source of interpretation is essential. Particular efforts to prepare and disseminate popularized versions of the legal and regulatory system, as has been done in Uganda, must be a key part of the decentralization strategy. Complexity is often unavoidable especially at the level of instruments for implementation, however, it helps if one instrument is not asked to do too much. This facilitates communication and implementation of the policy that the instrument is intended to support as well as monitoring of the effectiveness of the instrument in that role. Adjustment to the instrument and/or the policy also may be facilitated.
I k ow your new here. But there is an enforced etiquette on spam. Dont end up on the coal list. 8 posts 3 reblurts in one day.
Also take note, everytime you edit it send a notification for each one.
Got it. Thanks for the heads up.
https://www.acronymfinder.com/COAL.html
Good questions.
Lets start slow though.
What is "Law" to you?
What do you define as rules?
What does Anarchy to you mean?