Opinion

Federalism and democracy

BREAKTHROUGH - Elfren S. Cruz - The Philippine Star

August 4, 2016 | 12:00am

Federalism is a form of government where there is a division of powers between the national government and the regional governments. Federalism is said to be particularly suited to democracies especially those with very large populations or large geographical territories.

It has also been noted that real federalism can exist only in a democracy. This is because an authoritarian government will always insist on centralizing powers through a unitary form of government. The second reason is that the separation of powers must be rooted in constitutionalism and the rule of law.

All organizations, whether in business or government, reach a certain point at which there must be a decentralization of powers if it wants to be more efficient. In a businesss organization, this decentralization comes in the form of creating regional offices and appointing regional heads. In a democracy, powers must be delegated to an elected body if there is to be credibility and popular support from the people. Here is how George Anderson of the Forum of Federations explains it:

“The Soviet Union, Yugoslavia and Czechoslovakia were not true federations during the period of Communist rule, even though they had federal constitutions. All real powers were centralized in the Communist Party.

The situation was more complex in Latin America. Brazil and Argentina had periods of military rule at the center, but sometimes allowed relatively free elections within their states or provinces – particularly during military rule; in Brazil, the states developed a key role in designing a constitution to end [military] rule. In Mexico, the Institutional Revolutionary Party [PRI] largely controlled elections for many years but over time its grip loosened, particularly in certain states.

Nigeria and Pakistan have had similar experiences of intermittent military rule and federal democracy. Thus, some undemocratic federations are clearly for show, but in others their federal structure might have some reality. Moreover, in all these countries, federal constitutional arrangements came to have real significance during the transition to democracy as previously subservient units were empowered . In the formerly communist countries, the federal structure played a role in their break up.”

Federalism and the Constitution

A truly effective federal system must be based on a written constitution and the rule of law. The constitution must clearly define the distribution of powers between the national government and the regional government.

However, another component in the constitution must be the method for resolving conflicts over the legal powers of the national and the regional governments. A citizen cannot obey two contradictory laws. Normally, the legal conflicts can arise in the following ways:

• When there is a conflict between the laws of the national government and the regional governments, the central government’s laws are considered paramount. The only exceptions are those specifically provided by the constitution.

• Sometimes the national government and the regional government may pass laws that are in conflict. However, both sides may claim that their laws is derive from their powers. For example, the national government may have powers over internal trade but the regional government has powers over property. They may pass conflicting laws over these two areas. In such a case resolving the conflict requires determining which power – internal trade or property – is more relevant. The constitution must provide a method for interpreting relevant laws.

• There can also be times that there are no conflicts but a government or private party may object to law passed by another government on the grounds that the law goes beyond its powers.

• Sometimes, there are objections to a law on the grounds that it goes against a constitutionally established right.

A federal form of government requires a very strong and autonomous federal judiciary. In almost all federal states, the judiciary – especially the Supreme Court – has the ultimate authority for resolving constitutional disputes.

In the United States, the appointment of Supreme Court Justices is a highly politicized and debated issue but no one questions the right of the Supreme Court to be the final authority for deciding on constitutional issues. This is again another reason why federalism can succeed only in a democracy where the rule of law prevails and is accepted by all authorities – national and regional.

It is true that federalism cannot guarantee good governance any more than a unitary form of government. But the increase in worldwide attention to federalism is being driven by the spread of democracies and the increase in population in many developing countries. These two factors are leading to the demand for the devolution of powers to the areas outside the usual centers of powers.

In the Philippines, Metro Manila has always been the center of power. The electoral powers has always resided in the so called “ corridor” that stretches from Pangasinan to Quezon. It is not a coincidence that the economic power is also concentrated in this same corridor of power.

The devolution of power to the local government units is limited by the fact that these LGUs are too small to have any real powers; and, must remain dependent on the largesse of the central powers in Metro Manila.

The time has come to seriously consider how to allow the more equitable distribution of economic and political power from the center to the regions. We are not a small country. With a population of more than 100 million, federalism is the more effective form of government. Why regional governments? Political power cannot be devolved to an appointive body. In a democracy, political power can only be devolved to an elected government. This is the reason for federalism.