Brasilia – March 30-31, 2004
Presented document:
United Nations Human Settlements Programme
(UN-HABITAT)
Regional Office for Latin America and the Caribbean
(ROLAC)
Alberto Paranhos
Principal Officer
EXECUTIVE SUMMARY
The region of Latin America and the Caribbean is the most urbanized area of the developing world. Its urbanization rate is still very active, despite showing a tendency to decelerate. The region comprises almost 50 Municipalities with more than one million inhabitants, and includes 4 Federative States: Argentina, Brazil, Mexico, and Venezuela – among which are the two countries with the largest demographic and economic size in the region (Brazil and Mexico).
In all those Federations, Federal Constitutions ensure municipal autonomy in political, administrative, financial and operational terms. However, only in Brazil does the Municipality constitute a Federated Entity. In all other cases, the Municipality depends on an intermediate level of government – a State or Province.
With rare exceptions, their Federal Constitutions cite metropolitan areas or regions, but none expressly establishes any management mechanism, as do the intermediate levels (States and Provinces) and local levels (Municipalities).
Existing metropolitan authorities follow a great variety of institutional formats, and there are usually conflicts over competences between the municipal and metropolitan levels, so that a harmonious relationship between the two depends more on the political will and personal rapport between their respective authorities than on some legal rule by a higher level. There are interesting cases of municipal association, power delegation, etc. in both federal and unitary countries.
It is relatively easy to create Municipalities. This situation, combined with municipal autonomy, hinders the formation and consolidation of solid and efficient metropolitan authorities with a more co-ordinating and complementary role in regard to the specific duties of Municipalities.
Issues under discussion include: sustainability of municipal autonomy; quality of local management; balance between funds and competences within each level of government; political will of Municipalities as the origin of metropolitan authority and manifestation of their autonomy; assigning metropolitan authorities to act in the provision of services to Municipalities and delivery of specific products, rather than in a role of co-ordination and control; and current trends of Participatory Governance, which increasingly demand a cost-efficient combination of processes and results, involving legitimacy, participation, transparency, efficiency and effectiveness, according to the principles put forth by the UN-HABITAT Global Campaign on Urban Governance.
Such discussion must include the criterion of renegotiation of the federative pact with a focus on the efficient management of metropolitan regions and urban agglomerates. However, it must also be based on existing constitutional elements and, preferably, on the political will of municipal authorities, with the support and incentive from national authorities.
INITIAL COMMENTS
For the purposes of the present document, the term “federative” shall mean the federative system and the State resulting from the process of federation; “federal” shall mean the government of such Federative State or the national scope of such government; “federated” shall mean each of the States and Entities associating to form the Federative State.
The region of Latin America and the Caribbean is the area with the highest urbanization rate in the developing world, given that 75.8% of the population is urban1, as compared to Sub-Saharan Africa, for instance (34.6%), or Southeast Asia (38.3%). Such rate is comparable to that of the European Union (73.6%). This urbanization process goes on and, while its intensity is waning, there is still significant growth. The region houses two of the largest conurbations in the world – whose cores are the cities of Mexico and São Paulo – and comprises almost 50 municipalities with more than one million inhabitants (2000-2001).
Nevertheless, the urban growth has not managed to overcome the region’s poverty in a quick and sustainable manner, despite some improvements: 31.9% of the region’s urban population lives in precarious settlements2, as compared to 71.9% in Sub-Saharan Africa, 38.3% is Southeast Asia and only 6.2% in the European Union. In Latin America and the Caribbean, the vast majority of precarious settlements are located in urban conurbation areas and metropolitan regions. There is also considerable poverty in rural areas and small towns, and ample debate is underway over the best strategy for combating urban poverty: whether to preferentially invest into the precarious settlements of large metropolises – which actually concentrate the majority of poor families – or to fulfil basic needs and provide access to services to the poor population of small towns so as to contain their migration toward large metropolises.
1 UN-HABITAT, “Global Report on Human Settlements 2003: the Challenge of Slums”; Nairobi, 2003.
2 Ibid.
In addition to physical-territorial, socio-economic and environmental dimensions, as well as the functional logic dimension of production in metropolitan regions and urban agglomerates, it is necessary to study and improve their institutional-administrative dimension, seeking to gradually implement better cost-effective mechanisms for management – to the extent allowed by the respect to cultural habits and political relations characterizing each of those metropolitan regions.
SOME ASPECTS AND CHALLENGES TO METROPOLITAN MANAGEMENT IN FEDERATIONS OF LATIN AMERICA AND THE CARIBBEAN.
According to several authors3, “federation” originates from the Latin word foedus, which means “pact,” “alliance.” As its main attributes, a modern Federation includes the following elements, among others (selected for illustration purposes):
For the purposes of this presentation, we will mainly consider the elements of a tight regulatory and operational co-operation effort between national and sub-national government levels, each having autonomy and specific responsibilities and funds. In all references to constitutional texts, this presentation alludes to the Constitution in force on March 20, 2004, when research was performed.
3 DALLARI, Dalmo, “Elementos de Teoria Geral do Estado”; 22nd ed., 2001; also: BONAVIDES, Paulo, “Ciência Política”; 10th ed., 2002.
The region of Latin America and the Caribbean houses four Federations:
Curiously, only Brazil currently includes a reference to the federative system in the country’s official name.
In the Federations of Latin America and the Caribbean, as well as in the majority of the Unitary States in the region, three levels of government having their own administration may be recognized:
It must be noted that, in Unitary States, the intermediate level does not always have political autonomy, merely representing an act of administrative deconcentration of the national level in many cases.
There are some interesting exceptions to the above-mentioned sub-national territorial configuration, such as:
Federation and Decentralization
A Federative State in Latin America and the Caribbean is not necessarily more decentralized than a Unitary State, at least in regard to the total share of public funds controlled by sub-national governments (intermediate and local levels combined). Some examples4 in descending order:
Argentina: 49.3%
Brazil: 45.6%
Colombia: 39.0%
Bolivia: 26.7%
Mexico: 25.4%
Venezuela: 19.6%
Regional average: 14.6%
OCDE average: 34.9%
While the four Latin American Federations are among the six most decentralized States in terms of sub-national management of the public budget, two Unitary States are also included in the total. The operational decentralization of funds has varied greatly and while it has lately tended to increase in some countries, such as Chile, this tendency is not seen in the majority of cases.
Metropolitanization
The phenomenon of large urban agglomerates in Latin America and the Caribbean is known by many names, such as conurbation and metropolitan region among others. This phenomenon is multidimensional, as it includes physical-territorial aspects, socio-economic aspects, environmental aspects, etc. It is usually associated with the logic of functional-productional relations between urbanized areas located in adjacent territorial jurisdictions. It is generally a compact urban complex, with a more or less continuous urbanized area having significant population densities for land use and occupation, but often including urban expansion or reserve areas and some (few) rural occupation areas.
4 Inter-American Development Bank, in “IDB America” magazine, January-February 1998 (Spanish).
The issue under debate is: how to make the legal-institutional dimension of this phenomenon follow its territorial, socio-economic and functional-productional reality? More specifically, the problem is that, in Unitary States, despite constitutionally ensured municipal autonomy, the Central Government has enough power to create supra-municipal entities. In Federative States, however, the creation of supra-municipal entities implies in a renegotiation of powers, competences and funds, based on what is already established in the Federal Constitution. It will be necessary to reformulate the agreement concerning these aspects for the purpose of improving the cost-benefit ratio of public administration. This must be done within the overall objective of providing goods and services to the population so as to meet its basic needs and gradually improve the quality of its living conditions, uniformly and universally extending the “right to the city” to all metropolitan inhabitants.
We shall now briefly examine how each of the Constitutions of the Federative States of Latin America and the Caribbean addresses the metropolitan issue.
Argentina
The 1994 Constitution of the Republic of Argentina does not make any explicit reference to “metropolitan regions.” In Title Two, the constitutional text faithfully reproduces the notion of “federal pact” when indicating that “Provinces retain all powers not delegated to the Federal Government by this Constitution, as well as those powers to which they are expressly entitled through special pacts at the time of their incorporation5.” It also indicates that each Province must formulate its own Constitution, “ensuring municipal autonomy,”6 and that Provinces “may create regions for economic and social development7.”
The self-government of the City of Buenos Aires is guaranteed in the Constitution8. The city is to be governed by a directly elected Head of Government and there will be a Special Law to ensure the interests of the National State while the city is the Nation’s capital9.
Article 7 of the Constitution of the City of Buenos Aires (1996) establishes the State of the Autonomous City of Buenos Aires as the successor in rights and obligations to the former Municipality of Buenos Aires. Its Legislative Branch is formed by Representatives, which is consistent with the concept of placing the City of Buenos Aires on the same level as the Province, rather than the Municipality. However, the Constitution makes no reference to the management of services common to Buenos Aires and neighbouring cities. There is a specific metropolitan mechanism for the area of urban transportation.
5 Art. 121.
6 Art. 5 e 123.
7 Art. 124.
8 Art. 129.
9 Ibid.
Each Province formulates an Organic Law of Provincial Municipalities, which clearly conveys the idea that Municipalities somehow depend on whatever the Province attributes to them, defining their Municipal Charter within such scope in order to regulate assigned responsibilities. Some legal experts debate whether the municipal status is one of autonomy or delegated authority10.
All provincial and municipal authorities are directly elected.
With approximately 2,780,000 km2, Argentina has 23 Provinces and a total of 2.171 Municipalities plus the City of Buenos Aires, which enjoys special status in virtue of being the Federal Capital.
Brazil
The 1988 Constitution of the Federative Republic of Brazil delegates to States the responsibility of creating metropolitan regions, urban agglomerates and micro-regions11 without, however, defining such concepts. There is general acceptance about the need to pass Supplemental Federal Legislation to define these concepts and provide guidelines for the organization and management of conurbations.
Furthermore, the Brazilian Federal Constitution does not make any explicit reference to municipal consortia or associations, but it is possible to infer from it that these possibilities arise from municipal autonomy and municipal competences.
In the 1970´s, Federal Laws established 9 Metropolitan Regions in Belém, Belo Horizonte, Curitiba, Fortaleza, Porto Alegre, Recife, Salvador and São Paulo (1970), and Rio de Janeiro (1974). More recently, three Integrated Development Regions were created, thus called in virtue of containing a conurbation spread over more than one State: Brasília (Federal District and State of Goiás), Juazeiro-Petrolina (States of Bahia and Pernambuco) and Teresina (States of Piaui e Maranhão).
10 GARCIA B., HORACIO, La Autonomía de los Municípios Provinciales en la Reforma Constitucional de 1994, Academia Nacional de Ciencias Morales y Políticas, Buenos Aires, 1995
11 Art. 25, paragraph 3.
Institutional formats for managing these metropolitan regions vary greatly, despite having the same origin: there are entities with the format of a State Department, State-owned Company, Government Agency, Regulatory Body, etc. In Rio de Janeiro, the metropolitan entity has been deactivated for years.
There is a unique detail about the Brazilian Federation: the Municipality is a Federated Entity, on the same level as the States and Federal District12.
All state and municipal authorities are directly elected.
With approximately 8,514,000 km2, Brazil has 26 States, a Federal District having status similar to that of a State, and 5,558 Municipalities.
Mexico
The 1917 Constitution of the Mexican United States does not make reference to the “metropolitan” dimension, except for an explicit mention of the Federal District, later discussed in the present document. There is even a prohibitive reference from the standpoint of management, when it states that “there shall be no intermediate authority between the Municipality and the (Federated) State Government13.”
The Constitution also indicates that the “basis for territorial division of each (Federated) State and its political and administrative organization is the Free Municipality14. “
In addition, it asserts that Municipalities, “upon agreement of their respective Municipal Councils, may co-ordinate and associate themselves for a more effective provision of public services or better performance of their attributions,”15 save that when involving “Municipalities in two or more States, the approval of their respective states’ legislatures must be obtained16.”
12 Art. 1.
13 Art. 115, item I.
14 Art. 115, caput.
15 Art. 115, item III.
16 Ibid.
However, despite these references, the Constitution also indicates that “when two or more urban centres located in municipal territories of two or more federated entities form or tend to form demographic continuity, the Federation, federated entities and respective municipalities shall, within the scope of their competences, plan and govern the development of such urban centres in a joint and co-ordinated manner, according to federal legislation on the matter17.”
On the other hand, when making reference to the Federal District18, the Constitution indicates that:
It is implied from all constitutional references that the management of the conurbation encompassing the Federal District and neighbouring municipalities of the State of Mexico is not performed by one specific entity, but rather by metropolitan commissions formed voluntarily.
All state and municipal authorities are directly elected.
With approximately 1,973,000 km2, Mexico has 31 States, a Federal District, and 2,451 Municipalities (including 16 Delegations of the Federal District, which are similar to Municipalities).
Venezuela
The 1999 Constitution of the Bolivarian Republic of Venezuela makes reference to metropolitan areas only when addressing municipal competences (see below). It states that the “[national] territory is organized into Municipalities”19. The same article establishes that an organic law will govern the political-administrative division, ensuring municipal autonomy and political-administrative decentralization.
17 Art. 115, item VI.
The Constitution also determines that a “special law will establish the political and territorial unit of the City of Caracas integrated into a two-tier municipal government system: the Municipalities of the Capital District and the Municipalities of the Miranda State20.” The same article determines that this law will establish the organization, government, administration, competence and funds for achieving the city’s harmonious and full development, adding that this law will ensure the democratic and participatory nature of such government.
The Constitution also determines that the organization of Municipalities and other local entities is of the exclusive competence of each State21.
Chapter IV of Title IV refers to Municipal Power and indicates that “Municipalities may associate [...] or agree upon, among themselves or with other territorial public entities, the creation of modes of inter-governmental association for purposes in the public interest concerning matters under their competence 22. The same article adds that the regulation concerning the grouping of two or more Municipalities will be determined by law.
The same Chapter establishes general rules for two or more Municipalities belonging to a single federal entity (State) and having an economic, social and physical relationship that characterizes such group as a metropolitan area to organize themselves as metropolitan districts. It defines rules for the approval of the latter23, but makes no reference to mode of management.
Article 3 of the Special Law for the Government System of the Metropolitan District of Caracas (2000) reiterates the constitutional rule that there must be two levels of administration: a metropolitan level – formed by an Executive body and a Legislative body, whose jurisdiction encompasses the whole metropolitan territory of Caracas – and a municipal level – also formed by an Executive and a Legislative body for each Municipality forming the Metropolitan District of Caracas.
18 Art. 122, various items.
19 Art. 16.
20 Art. 18.
21 Art. 164.
22 Art. 170.
23 Art. 171 and 172.
The responsibilities of the Metropolitan District of Caracas are well defined under this Special Law24, but show similarities to the provisions of the Organic Law of the Municipal System (1989) for the municipal level in general. For that reason, there are still discussions about how to reconcile these responsibilities in the case of Caracas.
The Organic Law of the Municipal System also establishes more guidelines for Metropolitan Districts25 and Municipal Associations (“mancomunidades”)26.
All state and municipal authorities are directly elected.
With approximately 912,000 km2, Venezuela has 23 States, one Federal District (the Metropolitan District of Caracas) and 335 Municipalities.
Other examples
For illustration purposes only, some cases in Unitary States are discussed below.
Bolivia, Nicaragua and Dominican Republic
In these three countries, the Capital Municipality was dismembered into more than one autonomous territorial unit (new Municipalities), thus creating an artificial metropolitan area for an actual physical situation. In places where there was previously a single local authority, there is now more than one, but this process of dismemberment did not establish any co-ordinating entity among the new local authorities. This has led to apprehension regarding possible territorial disputes over the provision of services to the population, especially because the territorial sub-division was marked by a certain level of socio-economic segregation, as uniformly poor neighbourhoods of the original city were turned into autonomous Municipalities, thus hindering any policy of cross-subsidies that might exist.
Chile
The City of Santiago was also split into Communes that, together with neighbouring Communes, form a Metropolitan Area. However, the metropolitan authority is attributed to the intermediate level of government (“Regional Intendant” [Intendente Regional]) in the case of the Region where this metropolitan area is located.
24 Art. 19.
25 Art. 24 to 27.
26 Art. 28 to 31.
Colombia
The Special District of Bogotá is simultaneously the National Capital and the Capital of the Department of Cundinamarca, besides being an autonomous Municipality on the same level as the country’s other Municipalities.
Nevertheless, Bogota’s local authorities have been developing the concept of “city-region” with neighbouring municipalities, informally co-ordinating their operational activities.
Costa Rica
The metropolitan area of San José extends over various Municipalities maintaining an intense functional-productional relationship. There is no formal metropolitan authority, however. There are studies toward a Development Plan for the Greater Metropolitan Area (GAM) that may consider such option.
El Salvador
The National Capital – San Salvador – and 13 adjacent Municipalities formed the Council of Mayors of San Salvador Metropolitan Area (COAMSS), combining competences assigned to Municipalities by the Constitution of the Republic and the Municipal Code. As its first resolution, an authority for metropolitan planning and management was created (OPAMSS).
In 1993, the Law of Development and Territorial Organization of the Metropolitan Area of San Salvador and Adjacent Municipalities recognized the COAMSS and the competence of OPAMSS, providing additional guidelines for management of that conurbation.
An interesting feature in this case is that the Municipalities forming the Metropolitan Area delegated a number of land management responsibilities to OPAMSS – such as the approval of urbanization and construction activities – which lead to a more harmonious management of the metropolitan group and ensure good financial compensation to OPAMSS for the provision of these services.
Except for El Salvador, which has a specific metropolitan authority for the Capital (OPAMSS), in the majority of the other Unitary Countries discussed, metropolitan affairs are addressed through an organic dependence on the Ministry of Housing and Urban Development or similar bodies.
Municipal Autonomy
The Constitutions of all Federative States and the majority of Unitary States establish “municipal autonomy” as a basic principle of public administration. There is ample legal debate about the extent of such autonomy, given that, in several cases, the local government merely regulates what is already defined in the Federal Constitution and the State or Provincial Constitution. Some legal experts insist that the majority of Latin American municipalities are not autonomous, but agency-like.
In the case of Brazil, where the Municipality is an integral part of the Federation, the Organic Law of each Municipality has greater scope and can actually define rules for self-organization based on general constitutional rules.
Municipal political autonomy is a fact, since all local authorities are elected through universal suffrage. The electoral system varies a little between open and closed lists, with or without electoral quota by party, etc.
Municipal administrative autonomy is also a fact, given that local authorities hire their own personnel, AND PURCHASE goods and services; manage resources of all types; enter into operational agreements within their sphere of autonomy; and are able to outsource activities if they so desire. They are accountable to certain entities of the central Legislative or Executive branches regarding the probity and transparency of these processes.
In some cases, the financial autonomy of municipalities is questionable. While they all have their own revenues, these are usually insufficient for covering all operational and investment needs. Funds are generally supplemented by transfers from the national and intermediate levels, which are not always automatic or programmed. Municipalities of up to a certain population size increasingly rely on such transfers to be able to execute their plans of action.
In regard to operational activities, there is not always convergence of investment priorities for metropolitan regions among all levels of government, and disputes over projects end up generating waste in the use of public funds. The concept of “efficiency in social expenditures” is not yet fully incorporated into the process of integrated planning and selection of investment options.
There is a great difference in priorities between the wants of core-Municipalities in metropolitan regions and those of Municipalities in the first ring around the core and in the outside periphery. Core-Municipalities usually complain about the overburdening of their social apparatus by the rest of the metropolitan population, in virtue of a lack of appropriate and timely investments in the surrounding rings. On the other hand, adjacent and periphery Municipalities complain about increasingly becoming the target of migrations from the core due to economic reasons based on land value and housing. Curiously, many core-Municipalities also acknowledge that their traditional central districts are dispersing and deteriorating.
This entire process of mobility within the metropolitan region provokes growing pressure on the public transportation system, which is not always spatially or tariff integrated within the metropolitan area, as inter-municipal transportation is usually regulated by a supra-municipal administrative level.
Another extremely relevant element is the relative ease with which new Municipalities may be created through dismemberment. There are national rules and a certain control over the process. Nevertheless, political aspects almost always prevail over technical ones. At times, such dismemberment is indirectly stimulated by national rules concerning the distribution of financial transfers to Municipalities. Processes of municipal reunification or fusion for greater cost-efficiency rarely take place.
If, on one hand, municipal autonomy is essential for proper local management, on the other, it presents natural resistance to accepting some other, intermediate administrative level in the territorial organization of the Federation – especially when the creation of a metropolitan authority appears to be more an act of deconcentration of the Federated State than unification of relevant Municipalities into a consortium.
There are many interesting cases – some still under planning and others already in place – in which metropolitan authorities are formed based on municipal efforts toward association, and are later incorporated by relevant entities from other government levels. Thus, Consortia, Associations, Development Agencies, etc. emerge, and there may appear Multi-municipal or Inter-Municipal Companies (akin to multinational companies), as allowed by the respective national framework in each country.
SUGGESTED ITEMS FOR DISCUSSION
Within the context mentioned above regarding Federative countries of Latin America and the Caribbean, and considering that the goal of this International Seminar is to contribute with material for the discussion of a new regulatory framework for Metropolitan Management in Brazil, some items for debate are suggested below.
Brasilia – March 30, 2004.