Understanding federalism

Although the topic of federalism has been discussed since the 1971 Constitutional Convention, there are still many areas that are not clear even to political analysts. In the interest of full disclosure, I will state now that I have always been in favor of a federal system of government and I have written several columns in the past about this topic. However, today I want to focus on clarifying certain issues.

There is a wrong impression that the choice is between a unitary form of government – which we have now – and a federal form of government. There are actually three choices for forms of government – unitary, federal, confederate. Federalism is actually the middle choice between centralization and confederation.

In a unitary form of government, there is one level of government – the national government. All other forms of government are subordinate to the central government.

In both federalism and confederalism, there are two levels of government. In a confederation, however, the central government is subordinate to the regional governing bodies. In a federal form of government, there is a clear division of authority between national government and the state or regional government. The central government will remain more powerful than the state because of its authority over national concerns.

For example, in a federal government, the national government retains sole power in the areas of foreign affairs, national defense, monetary and fiscal policies and constitutional issues. The central government will, therefore, continue to have sole power to make treaties, control the armed forces, and a common currency. The Constitutional bodies will remain – Supreme Court, Central Bank, and Comelec.

A brief look at American history might shed some light on this issue. The original United States was actually a confederation of 13 states. When the US Constitution was being drafted, a Federalist Party was organized to support a stronger central government while maintaining the 13 states. A group called the Anti- Federalists wanted a weaker central government. The final US Constitution invoked federalism which was considered as being in the middle of the political spectrum between a confederacy and a unitary government.

The American Civil War (1861-1865) was between the South who wanted a confederacy and the North who wanted to retain the federal union. That is the reason why the Southern states that seceded from the United States of America called themselves the Confederate States of America.

The other issue that must be clarified is that the choice of having a presidential and parliamentary form of government is a different debate than choosing a unitary or federal government. Just for emphasis, a parliamentary or presidential form of government can be instituted in a federal, unitary or confederate form of government.

There are also three choices that are available – parliamentary, presidential and a combination of the two. United States is an example of a presidential form; Japan and the United Kingdom have a parliamentary form; and, France has a combination of both presidential and parliamentary.

Division of powers

In a federal form of government, the constitution must prevail. Therefore, the division of powers between the federal and regional form of governments must be clearly stated in the constitution. The constitution must also provide for powers that are not explicitly stated in the constitution. In Germany and the United States, the powers that are not specifically granted to the federal government are retained by the states. Other countries, like Canada and India, are different in that powers not explicitly given to the states are retained by the federal government.

In the granting of powers to the state, there are also two ways. If all the states have the same powers, this is called “symmetric federalism.” In a federal form of government where some states are given different powers or some possess greater autonomy, this is called “asymmetric federalism.” This is often done when it is clear that a state or region possess a distinct culture. In the case of the United Kingdom, Scotland has been given greater autonomy than England, Wales or Northern Ireland. In Spain the regions dominated by the Basques and the Catalans have more powers than the other Spanish regions.

In the division of powers, India has four lists of powers – Union List, Concurrent List, State List, and Residuary List. I am not advocating that we copy the India model. But I am presenting it here as a possible basis for discussion.

In the Union List, there are approximately 100 areas which is reserved for the federal government. Some of the areas are defense, armed forces, atomic energy, foreign affairs, citizenship, airways, currency, foreign trade, interstate trade and commerce, banking, customs, elections and the Supreme Court.

In the State List, there are more than 60 items on the list. Some examples are police, local governments, public health and sanitation, land tenures, fisheries, trade and commerce within the state, public markets and gambling.

The Concurrent List has more than 50 items where uniformity is desired but not considered essential. If there is any conflict between the laws made by the federal and state government, the legislation by the federal government shall prevail. Some items on this list are criminal law, marriage and divorce, adoption, forestry, labor unions, education, administration of justice except Supreme Court and High Courts.

In the United States, the federal government sets the minimum wage but the individual states have the right to enact its own minimum wage which, however, must be higher than the federal minimum wage.

The shift to federalism, even with Charter change, will be an evolving process and not an overnight change as some people wrongly envision. Even in the United States, the delineation of powers between the national and the state governments is continuously changing.

There are advantages and disadvantages to instituting federalism in the Philippines. There will be losers and winners in any shift to a different form of government. So we need to have a vigorous national debate. But the first step is to understand what federalism really means and while Charter change will formalize the structure, the process of federalizing can actually begin without Charter change.

Summer creative writing classes for kids and teens

Young Writers’ Hangout: May 28 ( 10: 30am- 12nn) and June 4 ( 1: 30pm-3pm). Classes will be held at Fully Booked Bonifacio High Street. For registration and fee details, 0917-6240196 / writethingsph@gmail.com Email: elfrencruz@gmail.com