2016
Gandhara Research
Society, Pakistan
1. M.P Singh,
Honorary Senior
Fellow, Centre for
Multilevel
Federalism,
Institute of Social
Sciences, New
Delhi, India
2. Rekha Saxena
Professor of
Political Science,
University of Delhi,
India
Gandhara Journal of Research in
Social Science
ISSN: 2415-2404
Volume 1, No. 1, Spring 2016
Allocation of Powers in Federal Constitutions/Systems: A
Comparative Perspective with Special Reference to Myanmar
There exist models of allocations of powers and responsibilities in comparative theory and
practice of federalism. Like other multicultural and multiethnic states of the world after
independence Myanmar opted for federal system. But soon the fear of disintegration compelled
its military elites to turn Myanmar into a unitary authoritarian structure. The debate on what
federal model would suit the country remained continued. This paper focuses on this issue and
recommends appropriate model of federalism for Myanmar.
Gandhara Journal of Research in Social Science (ISSN: 2415-2404, Volume: 1, No. 1 Spring 2016)
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Allocation of Powers in Federal Constitutions/Systems:
A Comparative Perspective with Special Reference to Myanmar
M.P. Singh* & Rekha Saxena*
I
Federal allocation of powers and responsibilities in comparative federal theory and practice may
be delineated into four models: (i) the dualist, (ii) integrationist, (iii) concurrentist, and (iv)
regulatory and interventionist. In the dualist model exemplified by the classical parliamentary
federation of Canada most powers as well as functional resources are exclusively assigned to either
of the two orders of governments, which normally administer policies and programmes separately
by their own civil services and departments. Some concurrent powers overlaps in performance of
responsibilities are there in this model, but their scope and significance are rather limited. Residual
powers are left with the federal Parliament.
Germany is the best example of the integrationist model, where, barring a few exclusive
federal subjects like defence, most subjects are concurrently assigned to both orders of
governments. In concurrent jurisdictions, the federal government makes national framework
legislations to be supplemented but not contravened by the constituent units. Moreover, all federal
and state laws and policies are administered and implemented by the administrative apparatus of
the regional governments.
What we have called the concurrentist model is characterised by enumeration of only
federal powers the remainder impliedly left exclusively to the states or concurrently to both orders
of governments. The net result is a large number of concurrent powers. The USA and Australia,
being classical federations have features of dualism, but they have such a large domain of
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concurrent powers that we have separated them from the dualist model and put them in a separate
concurrentist model. In these constitutions powers assigned exclusively to the federal government
are the only ones that are enumerated leaving the rest to the states or provinces. These enumerated
federal powers are also limited in another sense with most federal powers being identified as
concurrent powers.
Finally, what we have called the regulatory and interventionist model may be illustrated
with the Indian Constitution which classifies legislative and taxation powers into three lists. These
are the Union List, State List, and Concurrent List, all fairly large in the largest written constitution
in the world. Residual powers are allocated to the Union Parliament. What distinguishes Indian
Constitution from other dualist or tripartite divisions of powers elsewhere are the two following
features. First, some exclusive state subjects are made subject to the regulatory and developmental
powers of the Union in 'national' defence or 'public interest'. These are subjects like water, mines
and minerals, industries, and elections. Exclusive state powers in these areas are expressly made
subject to any law made by the Parliament of India purporting to promote a better regulatory or
developmental policy regimes in the fields of water, industries, mines and conduct of free and fair
elections. The 42nd constitutional amendment (1976) added a new subject to this category, i.e.
deployment of armed forces or paramilitary forces by the Union 'in aid of civil power' in a state.
Second, there are three constitutionally contemplated emergencies in the Indian Constitution: (a)
national emergency due to a war, external aggression or armed rebellion; (b) emergency in a State
in case of the failure of constitutional machinery' there such as 'the government of the State cannot
be carried on in accordance with the provisions of this Constitution; and (c) financial emergency
defined as a situation whereby 'the financial stability or credit of India or of any part of the territory
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thereof is threatened.' In all these contingencies, the normal federal division of powers in the
Constitution are suspended by the Union Executive with parliamentary approval in favour of a
unitary Constitution for all practical purposes.
II
In this section of this paper, we purport to present an overview of what powers are typically
assigned to the Union and the States exclusively, what to the States exclusively, and what to the
concurrent jurisdictions of both with federal laws prevailing in cases of conflict. We would also
see what is the situation as to the allocation of residual powers. Our summary presentation here
draws on the Appendix A on The Distribution of Powers and Functions in Federations: A
Comparative Overview in Ronald L. Watts, Comparing Federal Systems (1999: 125-130) and from
the text of the Indian Constitution.
Federal Powers
International relations, defence, customs/excise, corporate taxation, immigration, fiscal
equalisation, public debt of the federation, inter-sate trade and commerce, currency, railways,
airways, telecommunication, boardcasting, postal services, nuclear energy are most commonly
federal subjects. Aboriginal or tribal affairs, too.
State Powers
Agriculture, primary and secondary education, health, sanitation, prisons, local
government, intra-state trade, intra-state transportation and waterways are mostly likely than not
to be state subjects.
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Federal-State
This category is specially created by Watts (1999) for those instances where different
aspects of the same matter are exclusively assigned to the federal and to the State governments.
This pattern is illustrated by subjects like foreign borrowing, domestic borrowing, personal income
tax, insurance, roads and bridges, fisheries, research and development, hospitals, social services,
civil law, organisation of Courts, internal security, languages.
Concurrent Powers
Most frequent concurrent subjects are sales tax, pensions, immigration (in a considerable
number of cases), internal security (in a considerable number of cases). In the USA and Australia
concurrency is particularly large in a variety of policy areas. India, although the Union List
originally contained 97 entries, and the State List 66 entries; nevertheless, the Concurrent List too,
with 47 entries, is fairly large. The typical subjects in the concurrent jurisdiction are family laws,
contract laws, criminal law and procedure, civil procedure, administration of justice in lower
courts, forests, education, economic and social planning commercial and industrial monopolies,
social security, trade Unions, legal/medical/ and other professions, vital statistics, factories,
electricity, newspapers/books, printing presses, acquisition and requisition of property, etc.
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Residual Powers
The pattern of allocation of residual powers is heavily tilted in favour of states. United
States, Switzerland, Australia, Germany, Austria, Malaysia, Czechoslovakia, and Pakistan allocate
these powers to the states. In Canada, India, and Belgium residual powers belong to the federal
government. In Spain in some aspects the federation and in others the states exercise these powers.
Amending and Judicial Review Powers
In practically all federal Constitutions, the power to amend the Constitution is a shared federalprovincial power with minor variations in procedures and as to the entities involved in the process.
For example, in some Constitutions in addition to the two levels of legislatures, the amendments
are subject to ratification by popular, referendum, as in Australia. In India an amendment must be
passed by two-thirds majorities in each house of the Parliament, followed by (but only in case of
federally relevant provisions of the Constitution) a ratification by at least half of the State
legislatures, before it is presented to the President of India for assent.
All federal Constitutions, excepting Australia's also include bill of rights or fundamental
rights of citizens in forms of individual and community/minority rights.
In all federal Constitutions, laws and executive actions of both the federal and state
governments are subject to an independent judiciary. There are three basic sources of the review
powers of the federal constitutional Courts: tripartite separation of powers among the legislature,
executive, and judiciary; federal division of powers between the federal and regional governments;
and the bill of rights or fundamental rights of citizens. Any transgression of these constitutional
provisions may be declared null and void or unconstitutional by the constitutional courts.
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Constitutional amendments are not subject to judicial review in all constitutional texts,
including India’s. However, since 1993, the Supreme Court of India has extended its power of
review to constitutional amendments too. In Keshavanad Bharati v. State of Kerala (1993), the
Court propounded a new judicial doctrine of the Unamendability of the 'basic structure' or 'essential
features' of the constitution in the backdrop of wanton amendments to the Constitution by the
Emergency regime (1975-1977) to the extent of destroying its democratic character. In a series of
subsequent judgments the Supreme Court has elaborated and consolidated this doctrine, which by
now includes features like democratic, federal, and secular character of the Constitution, free and
fair elections, and judicial review itself as parts of the basic structure of the constitution which are
beyond the amending power of the Parliament and/or aggregate legislatures.
III
Since 1948, when the Union of Burma came into existence as an independent state after
the end of British colonial rule, the multi-ethnic and multicultural Burma/Myanmar has been
governed under three Constitutions, those of 1947, 1974, and 2008. In 1947, the majority Burmans
joined hands with the minorities to establish a federal Union following the Panglong Conference
and the subsequent constitutional convention. The newly founded state was, however, soon
bedeviled by mistrust, alleged threat of ‘Burmanisation’, discontent and rebellion. In 1962, a
military coup overturned the Constitution, arguing that the minorities were bent upon breaking the
Union in pursuit of independent states. The Burman-dominated military proceeded to create a
centralised state with a top-heavy structure. In 1974, the military rulers instituted a unitary state
under a new Constitution with a nominal federal form. A single political party sponsored and
controlled by the military was placed in power. Peace and national unity remained elusive under
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the new Constitution, with widening revolutionary activities and new demands for independence
by some minorities. In 1988, the military again seized power and abrogated the 1974 Constitution
of their own making. In 1990, after a largely free and fair election power could have gone into the
hands of the representatives of the people with some degree of electoral legitimacy. But this was
not allowed and the military rulers promulgated the State Law and Order Restoration Council
Declaration No.1/90 to govern by martial law. They crushed all opposition in the Burman majority
heartland and bought peace by signing ceasefire and agreements with 15 ethnic minorities in the
Eastern and Western flanks, leaving only two in rebellion. But this could not ensure a durable
peace. In 2008, the military rulers drew up the controversial 2008 Constitution, which continued
to be criticised as undemocratic and anti-federal. For the military-dominated government under
this constitution is based on an interlocking between elective and military-nominated
representatives in the Parliament and the executive.
For the last three years, there are some halting moves towards a transition to constitutional
democratic governance.The Constitutional Joint Review Committee of the Myanmar Parliament
submitted its report with recommendations on 31 January 2014 in the process of revising the 2008
Constitution. More than proposed changes in the Constitution, it summarises the various
submissions made to the committee over the past few years. In the opinion of Marcus Brand (2014:
2), ‘The changes, if any, are likely to remain within a rather small bandwidth and are not expected
to fundamentally modify the power balance inscribed in the 2008 Constitution. One of the key
aspects of the expected revisions, judging from the proposals and statements from various political
leaders and MPs, is an effort to increase the powers and responsibilities of Myanmar's 14 States
and Regions'.
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A durable restoration of democracy and federal governance could be going back to the
Panglong Agreement around the time of Burma's independence among the Burman majority and
multiple minorities that underlay the 1947 Constitution, which could, in fact, have been better
drafted to reflect the Agreement more truly. But for this Agreement promising equal opportunity
and self-determination, the Union of Burma Could not have been founded in the first place.
In the process of constitutional renewal, the restart may well be going back to the outset,
i.e. the Consitution of 1947, with a spirit of correction and adaptation to the parametric changes
since then. There are continuities of legacies between the Constitutions of 1947, 1974, and 2008
in terms of referring the country as a 'Union', territorial division, federal division of powers
between the central and constituent governments, bicameral parliament, and a federally shared
process of constitutional change. In federal division of powers in the 1947 Constitution, the Union
List consisted of entries like foreign affairs and defence, communications, finance, central bank
and currency, census, elections, civil and criminal law, media, planning, social and labour affairs,
movements, industrial development, cooperatives, forests, mines, etc. The State List included the
power to adopt a Constitution for the state, public services and public service commission,
agriculture, fisheries, land, market and fairs, water excluding cross-unit rivers, public order,
administration of justice, local infrastructure, primary and secondary education, public health and
sanitation, vital registration, local government, etc. sources of revenue for States comprised
royalties on oil, minerals, forests and rubber, alcohol, etc., supplementable by fiscal transfers from
the Union.
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Taking the foregoing as the basis, the process of constitutional renewal may be renegotiated
adopting the best principles and practices in the universe of federal models around the world
discussed above in this paper.
None of the two major parties — the ruling Union Solidarity and Development Party
(USDP) led by President Thein Sein and the opposition National League for Democracy (NLD)
led by Aung San Suu Kyi — favour a complete rewriting of the present military-drafted
Constitution. A member of proposals in circulation would strengthen the federal structure and,
enhance the Chief Ministers role in the States and Regions, which would appeal to the ethnic
minorities on the Eastern and Western regional flanks on the two sides of Central Myanmar. A
wider and more open dialogue with regional parties and groups would be desirable for the sake of
a durable constitutional consensus on democratisation, federalisation, and demiliatarisation or
civilanisation of the Constitution.
The observation of David Dapice and Thomas Valley (2013:5), made a couple of years
ago, is till valid: 'a broad coalition of the incumbent party, the democratic opposition, ethnic groups
and the military is needed to fundamentally change Myanmar's past failed orientation. This broad
coalition should work for a new federalism in which states (at a minimum) have fairly elected
governors and meaningful revenue sources so they can run many of their own affairs. This idea
for this approach grew out of work on Kachin hydropower resource-sharing. The concept of
relying on broad coalitions can be extended to the stewardess of other natural resources and to the
questions of governance as well.’
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In the November 2015 general elections, the first polls after a nominally civilian
government was introduced in 2011 modifying nearly 50 years of military rule, Aung San Suu
Kyi-led NLD (a party of social democratic orientation) has won a landslide victory under the firstpast-the-post constituency-based electoral system. NLD has got 125 of 224 seats in the upper house
of the Parliament and 255 seats of 440 seats in the lower house. The corresponding tally of seats
of the military-backed USDP were only 11 and 30 seats respectively. Other parties accounted for
22 and 38 seats respectively. The unelected nominees of the military (constitutionally entitled to
25 per cent of all parliamentary seats) with 135 seats in the upper house and 110 seats in the lower
house of the Parliament would, of course, be next only to the NLD, armed with veto over
constitutional change and holding three key ministries of home security, defence, and border
affairs appointed by the Army Chief rather than the civilian President. Only a nominee of Suu Kyi
can contest the impending election to the Presidency of the Republic by the Parliament. For she
stands disqualified as a candidate in the first place under Article 59F of the Constitution
disqualifies anyone whose offspring(s) are foreign national(s), which applies to her. But the
military will have to contend with the charismatic leadership of Suu Kyi (b. 1945), daughter of
Aung San (the de facto Prime Minister of British Burma assassinated in 1947 on the eve of
independence of the country) and Nobel Peace Prize winner, and
the enormous electoral
legitimacy of NLD of which she is the President. Nevertheless, Myanmar’s tryst with federal
democratic destiny would appear to be probable yet a long way ahead.
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End Notes________
Anderson, George (President Forum of Federations). Federalism: An Introduction, Don Mills, Ontario, Canada:
Oxford University Press, 2008.
Bakshi, P.M. The Constitution of India, New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2013, twelfth edition.
Brand Marcus. 'Towards "genuine federalism? Myanmar's inexorable path towards constitutional devolution and
decentralised governance; Constitutionalism and Legal Change in Myanmar Workshop, 13-14 February 2014,
Singapore.
Dapice, David and Thomas Valley. 'Against the Odds: Building a New Coalitions Using a New Federalism for Using
and Progress in Myanamr', Hardvard Kennedy School, ASH CENTER for Democratic Governance and Innovation &
Rajwali Foundation Institute for Asia, March 2013.
Government of Myanmar. Constitution of the Republic of the Union of Myanmar, Yangon: Printing & Publishing
Enterprise, Ministry of Information, September, 2008.
Pylee, M.V. Select Constitutions of the World, New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2002.
Silverslein Josef. 'Federalism as a Solution to the Ethnic Problem in Burma', Legal Issues on Burma Journal, No. 11,
April 2002.
Watts, Ronald L. Comparing Federal Systems, Montreal: McGill-Queen's University Press, 1999, 2nd edition.
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