Key considerations on federalism

Key considerations on federalism

By Jeffrey Winters

CHICAGO (JP): Recently a broad coalition of students organized
a national seminar to discuss federalism and autonomy. It is a
very important national discussion. In the context of Indonesia's
history, it is also highly controversial.

For some Indonesians, the word "federalism" means division and
disunity. For others, it is seen as the only possible way to
maintain national unity when regions are demanding autonomy and
even independence.

Federalism is not a magic pill that cures all problems.
Indeed, federalism solves some problems and creates others.
Under the right circumstances, federalism can help maintain
national unity. It can also be a first step toward full regional
independence.

If federalism is attempted, it should be seen as only one
component in resolving conflicts that can be very complex (and
different from province to province). It would be unwise to put a
federal system in place without thinking carefully about how it
fits with other components of an integrated framework.

It is important to realize that federal systems exist in many
shapes and colors, depending on the specific arrangements between
federal and provincial governments around the world. But there
are certain fundamental elements that define a system as federal.

The first element is parallel structures of government. A
central (or federal) government consisting of legislature,
executive, and judicial branches exists side-by-side with state
or provincial governments with their own parallel branches.

There is no structural or operational connection between the
branches at the two levels. For instance, federal and provincial
executive branches can cooperate if they like. But by law they
are usually separate and autonomous.

The second key element is a Constitutional division of powers.
Both federal and state governments derive the powers they have
from the single federal Constitution. This means (in theory) that
the powers of provinces are not "on loan" from the federal
government, and cannot be taken back if presidents or policies
change.

The Constitution clearly states what powers the provinces have
and what powers the federal government has. Neither the federal
government nor the states can change this division of powers
unilaterally. The only way is by amending the Constitution
through a process that involves the states in the amendment.

Currently in Indonesia, only the People's Consultative
Assembly or the MPR can amend the Constitution. A federal system
would change this so that states are formally involved in any
Constitutional amendment process.

A third crucial elements is the need for clear provisions for
conflict resolution. The Constitution must also be explicit about
how the judicial hierarchy will settle center-regional
disagreements. It must also be clear about how and when the
federal government is allowed to reassert its ultimate
sovereignty.

There are many areas that must be decided carefully if
federalism is to be stable. For example, is the right to make war
limited only to the federal government? In theory, the USSR
republics had the right to wage war independently, though they
never exercised that right. In the United States, only the
federal government can wage war and conduct foreign policy.

Also, how are government revenues collected and spent? And who
will control the coercive elements of the system such as the
police, the military, and intelligence agencies? Will there still
be a centralized command for all police or will the executive
branch of each province have independent control over police?
Will each province have its own attorney general? Will armies and
soldiers only exist at the federal level?

In the United States, each governor, who is the directly-
elected "president" of his or her state, has his own soldiers
with the misleading name "National Guard." All ordinary police in
the United States are local city employees (except the FBI, who
operate as a federal police and intelligence force and are under
the control of the federal Attorney General). In emergencies, the
federal government can request backup from National Guard forces
in each state. But governors have the right and power to refuse
the request. State governors can also ask the president to send
federal soldiers in case of a severe emergency.

As an interesting aside, in the early 1960s when President
Kennedy was trying to force Southern U.S. states to allow blacks
into public universities, a dangerous test of American federalism
arose when one governor refused to follow the new federal law
against racism. He blocked the entrance to campuses using his
state National Guard.

President Kennedy phoned the governor and threatened that
federal army troops would be used to protect the black students.
It was possible that federal troops and state National Guards
could start shooting each other. Fortunately the governor backed
down, the black students were admitted, and no shots were fired.

Another important question in federalism is how the judicial
system will operate. Which issues are violations of federal law
and which ones violations of provincial laws? And if federal and
state laws are in conflict, which one is dominant and what is the
judicial procedure for deciding the outcome? And what role does
the Supreme Court play in settling conflicts between federal and
state government, as well as disagreements between the states
themselves?

Many people think federalism and decentralization are the same
thing. But this is not necessarily true. Federalism is a
Constitutional arrangement in which the rights and powers of the
central and regional governments are clearly defined and cannot
be changed by either side unilaterally.

But federalism can be highly centralized (meaning states or
provinces have only the specific and limited rights granted
explicitly by the Constitution) or it can be highly decentralized
(meaning states and provinces retain all rights not explicitly
granted to the federal government). The latter is the U.S. model.
It was the states (13 colonies, actually) that delegated limited
powers to the federal government, rather than the reverse. The
U.S. system was designed with a strong bottom-up flavor. All
powers not granted by the states to the federal government remain
the powers of the states.

Unitary systems are the opposite of federal systems. The key
difference, again, is not the degree of centralization. It is
possible to have a highly decentralized unitary system, where
provinces have been allowed a great deal of autonomy.

The difference is that the Constitution does not formally
divide the powers between the center and regions. In unitary
systems, the central government is not Constitutionally prevented from
taking powers from the states.

Federal systems give strong guarantees of autonomy to states
and provinces because they are written explicitly into the
national Constitutional, which cannot be changed without states
participating directly in the amendment
process.

Unitary systems have much weaker guarantees of autonomy and
less definition in the boundaries of rights and powers between
levels of government. A federal system makes states more bold
because they can operate according to the full rights granted to
them by the Constitution.

In unitary systems, provinces are more cautious because they
know that even a central government that gives wide autonomy is
not prevented by the Constitution from taking away the
independence of the provinces due to conflict or frustration.

The writer is a professor of political economy at Northwestern
University in Chicago, the United States.