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.