18.02.2007
Window Shopping for Federalism
_by Dr San Oo Aung
The lame excuse of General Ne Win, “he had to save the country from disintegration into pieces under the deteriorating Parliament Democracy, blah, blah, blah” deeply penetrated, brainwashed or influenced our mind so much that we used to repeat those words in some of our school essays to earn extra points.
I still remember the cartoon of Ne Win’s era, in which a man was trying to molest or embrace a girl. The caption, sentence below was in Burmese, “Phet_tae’_hae” that sounds like Federal. Although that cartoon’s quality was a cheap, low standard propaganda hitting under the belt without even a merit to mention here, I used to see back that image if someone mentioned Federal. That is the power of negative propaganda on the people or silent majority.
One written word is more effective than just a spoken word. In addition, one picture is thousand times more effective than one page of writing. Successive Military rulers hate the Parliamentary Democracy but now, the present SPDC could not resist the Democracy Tsunami and trying to dodge with their sham “Guided or Disciplined democracy”. According to the Myanmar Tatmadaw’s permanent dominance doctrine, they never wish to share power or allow other party or any state or ethnic group to rule them or parallel to them. As they want the total control of the power of the whole Myanmar, it is a taboo to use the word Federal. They just wrongly equate Federalism with Separatism and paint it with the black ink.
As the SPDC is drawing a new constitution, let us do a window-shopping of the various forms of Governments around the world and choose the best form of government for our country. As there are many systems let us just look at a glance what we do not want and do and comparative studies on others which with be suitable to us _
¨ Communism and Socialism are out of question, as we had already tasted the bitterness of BSPP. Totalitarianism, Fascism (extreme Nationalism), Single party states are just the same taboo after our bitter experiences with the successive Military Governments.
¨ Let us turn our head away from Monarchy, as I believe that you do not want to put the reverse gear of the time machine to go back into our history.
¨ Autocracy, Oligarchy, Military Dictator and Tyrant governments are same as present Military governments. Therefore, I hope you will surely reject Despotism, as it is almost the same. Police state would be the same as present Myanmar as Police is the lap-dog of the present Military.
¨ We also do not like Anarchy as the tail end of 8888 movement and during the Second World War.
¨ And I am sure we are not going back with the time-machine to a Tribalism system of government.
¨ Actually, Aristocracy is the system the present Myanmar Military is seeking, not the democracy. It was first given in Athens to young citizens who led armies from the front line with their swords up. Since military bravery was such a highly regarded virtue in ancient Greece, the armies were being led by "the best". From the ancient Greeks, the term passed on to the European Middle Ages for a similar hereditary class of military leaders often referred to as the “nobality”. As in ancient Greece, this was a slave holding class of privileged men whose military role made them see themselves as the most "noble", or "best". Yes in present Myanmar, Military Personnals are regarded as the most "noble", or "best" who regarded that all the civilians as their subjects or slaves.
¨ Technocracy, bureacracy may be not bad except for the red tape and danger of deteriorating to dictatorship.
¨ We are not aiming at the Communist China’s One country multiple system of government.
¨ We do not like the Myanmar Empire ruling on Ethnic Minority peripheral areas.
As there are about 135 Ethnic Minorities, Minority Religious groups, Burmese Chinese, Burmese Indians and other mixed blooded people in our country, we could not accept the Unitary State or an Empire. We need a Federal system where the power is shared by the central government and regional state governments.
So let us continue shopping for the various Federal systems for our beloved country_
- In a Federal system, Sovereignty located at the central government as well as in peripheral states and divisions.
2. A federation ( Latin: foedus, covenant) is a UNION comprising a number of partially self-governing states or regions united by a central ("federal") government.
3. In a federation, the self-governing status of the component states is constitutionally enshrined and protected so that it may not be altered by a unilateral decision of the central government.
- Federations may be like in Burma, multi-ethnic, or cover a large area of territory, although neither is necessarily the case. Federations are sometimes founded on an original agreement between a number of soverign states.
- States are usually autonomic or sovereign in some of the powers agreed upon at the formation. Such as land, water, local Municipal taxation, local state parliament, state government, state budget, religious and local custom related judiciary matters like minor disputes, marital affairs, inheritance etc. Those powers are reserved to them and the central government has no authority to exercise but for persons of the other state or race. Federal Courts could be available for appeal and the Federal Governments used to give some guide lines or laws to deal with those cases.
- However, the federation is more than a mere loose alliance of independent states. The component states of a federation usually possess no powers in relation to
a. foreign policy
b. defence (military)
c. moneytery authority (central bank issuing bank-notes)
d. central powers agreed to entrust on the central government before the federation
- Therefore the indidual states enjoy no independent status under the International Law.
- Federations usually exhibit a single, two-tier structure of government across an entire jurisdiction.
- Some federations are called assymmeteric because some states have more autonomy than others, although they have the same constitutional status. Certain parts of the federation are under more direct control of the federal government, as is the case with the autonomous 'territories' of Canada and Australia, with Union Territories in India and with the United States District of Columbia.
- Sometimes, small peripheral regions to be self-governing, while a central, much larger 'metropolis' region remains under the direct control of the central government.
11. A federation often emerges from an initial agreement between a number of separate states to come together in order to solve mutual problems, or provide for mutual defence. This was the case with the United States, Switzerlans , Canada and Australia. In other cases, like Brazil, the federation comes after a unitary state, as a new model in order to decentralize powers and functions.
Constitutional structure
Division of powers
In a federation, the division of power between federal and regional governments is usually outlined in the constitution. It is in this way that the right to self-government of the component states is usually constitutionally entrenched. Component states often also possess their own constitutions which they may amend as they see fit, although in the event of conflict the federal constitution usually takes precedence.
1. The USA constitution provides that all powers not specifically granted to the federal government are retained by the states.
2. The Canada constitution , provides the opposite: that powers not explicitly granted to the provincial governments are retained by the centre.
3. In Germany, the division of powers is less one of content than of administration: the federal government often merely issues broad directives to the self-governing regions, which then have broad discretion as to how to implement them.
4. In the People's Republic of China, the central government sets up general economic policy and goals, and leaves the implementation to provincial governments.
5. The Australian Division of Powers serperates some powers which were considered too difficult for the states to manage so that the Federal Government takes on that responsibility.
Where every component state of a federation possesses the same powers, we are said to find 'symmetric federalism'.
Asymmetric federation exists where states are granted different powers, or some possess greater autonomy than others do. This is often done in recognition of the existence of a distinct culture in a particular region or regions. In Spain, "historical communities" such as Navarre, Galicia, Catalonia, and the Basque Country have more powers than other autonomous communities, partly to deal with their distinctness and to appease nationalist leanings, partly out of respect of privileges granted earlier in history.
It is common that during the historical evolution of a federation there is a gradual movement of power from the component states to the centre, as the federal government acquires additional powers, sometimes to deal with unforeseen circumstances. The acquisition of new powers by a federal government may occur through formal constitutional amendment or simply through a broadening of the interpretation of a government's existing constitutional powers given by the courts.
Organs of government
The structures of most federal governments incorporate mechanisms to protect the rights of component states.
One method, is to directly represent the governments of component states in federal political institutions. Where a federation has the upper house represent the component states while the lower house represents the people of the nation as a whole.
A federal upper house may be based on a special scheme of apportionment, as is the case in the senates of the United States and Australia, where each state is represented by an equal number of senators irrespective of the size of its population.
Alternatively, or in addition to this practice, the members of an upper house may be indirectly elected by the government or legislature of the component states.
The lower house of a federal legislature is usually directly elected, with apportionment in proportion to population, although states may sometimes still be guaranteed a certain minimum number of seats.
In Canada, the provincial governments represent regional interests and negotiate directly with the central government. A First Ministers’ conference of the prime minister and the provincial premiers is the de facto highest political forum in the land, although it is not mentioned in the constitution.
Federations often have special procedures for amendment of the federal constitution. As well as reflecting the federal structure of the state this may guarantee that the self-governing status of the component states cannot be abolished without their consent. An amendment to the constitution of the United States must be ratified by three-quarters of either the state legislatures, or of constitutional conventions specially elected in each of the states, before it can come into effect. In referenda to amend the constitutions of Australia and Switzerland it is required that a proposal be endorsed not just by an overall majority of the electorate in the nation as a whole, but also by separate majorities in each of a majority of the states or cantons. In Australia, this latter requirement is known as a double majority.
Some federal constitutions also provide that certain constitutional amendments cannot occur without the unanimous consent of all states or of a particular state. The US constitution provides that no state may be deprived of equal representation in the senate without its consent. In Australia, if a proposed amendment will specifically impact one or more states than it must be endorsed in the referendum held in each of those states.
An Asian Model
Malaysia is a federation of 13 largely autonomous states. Having achieved independence within the British Commonwealth in 1957, Malaya expanded to become Malaysia in 1963, though Singapore left the federation in 1965. In addition to the 13 states, nine of which are sultanates, there are three federal territories. The states exercise considerable power over local affairs, even appointing councils and mayors.
In Malaysia, there are states ruled by opposition parties and the central Federal Government ruled by the majority party. East Malaysia states are rich in resourses and less populated. So they successfully negotiated with the help of then UN Secretary General U Thant to maintain special rights called twenty point agreement.
Because of that, the central Diplomatic area road in Kuala Lumpur was named U Thant Road to honour him. Ironically U Thant was not duly honoured in his mother country, Myanmar.
According to that agreement, although East Malaysians from Sabah and Sarawark could freely travel, work and migrate into the West Malaysia or Penisular Malaysia but the reverse is restricted. West Malaysians have to use the Passport to enter East Malaysia and need work permits to be able to engage in any employment. Even the PM of Malaysia needs to use the Passport. Some professionals like West Maaysia lawyers are not allowed to practice there.
In Malaysia, the Ninth Schedule specifically lists the following matters as those that can only be legislated on by the states: land tenure, the Islamic religion, and local government. The Parliament of Malaysia is permitted to legislate on issues of land, Islamic religion and local government in order to provide for a uniform law between different states, or on the request of the state assembly concerned. The law in question must also be passed by the state assembly as well, except in the case of certain land law-related subjects. Non-Islamic issues that fall under the purview of the state may also be legislated on at the federal level for the purpose of conforming with Malaysian treaty obligations.
Malaysia is a constitutional elective monarchy, chosen for five years among the nine sultans. Malaysia’s federal government is constituted along the same lines as the Westminster model adopted by many former British colonies, but in practice the executive has come to dominate political affairs, especially under Prime Minister Mahathir. The parliament, located in the capital Kuala Lumpur, consists of two houses – the Chamber of the Nation and the Chamber of the People. The Chamber of the Nation, or Senate, consists of 69 senators who sit for six year terms, 43 appointed by the king and 26 from the states. The lower house’s 193 representatives are elected from single member divisions for up to five years and by universal adult suffrage (21 years and over). The Prime Minister, who is appointed by the king as the leader of the majority party or coalition, must sit in the lower house.
The two main division of local government are rural district councils and urban centres. There are two types of urban council: city councils and municipalities. All types of local government perform the same functions. Municipalities can be upgraded to cities once they satisfy the required criteria. There are nine city councils, 34 municipal councils and 101 district councils. However, cities are led by mayors, while municipalities and districts are led by presidents. The state governments, elected every five years, appoint mayors, presidents and all councilors. The appointments are for three-year terms, but individuals may be reappointed. This is uniform across the country. The council decision-making process is through a committee structure determined by the local authority, including the committees provided for in legislation.
Local government is responsible for public health and sanitation, waste removal and management, town planning, environmental protection and building control, social and economic development and general maintenance functions of urban infrastructure.
After window shopping the different Federal Governments, I wish to advise my friends to buy the best bits from other people’s models for our country.
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