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Comparative Federal Models

Siva Bhaskaradas
14 December 2002

Both the Government of Sri Lanka (GOSL) and the Liberation of Tigers of Tamil Eelam (LTTE) are to be congratulated for their genuine commitment to the peace process. Undoubtedly the positive outcome of the three round of peace talks between the two parties will ease the mutual hostility and suspicion between the two major communities and gradually develop the mutual trust between them. The LTTE has expressed its willingness to enter into mainstream politics and to allow other political parties to participate in the electoral process. The LTTE has also shown its readiness to accept a federal structure within a united Sri Lanka founded on the principle of internal self-determination.

It is noteworthy that the emergence of Tamil nationalism as a powerful force in Sri Lanka in the past two decades has been primarily attributable to Sri Lanka’s majoritarian democracy since independence in 1948. Under the majoritarian democracy, the Tamils have been systematically denied of access to power sharing and this has led them to fight for an independent Tamil Eelam. The main features of the Sri Lankan majoritarian democracy are as follows:

· Continuous adoption of unitary constitutions for a non-homogeneous society, 
· Implementation of electoral system of ‘first past the post’ until 1978, 
· Operation of asymmetrical bicameralism until early 1970s (and the senate had no more powers other than to delay a legislation), 
· Adoption of unicameralism since 1972, 
· Keeping political control with the two main political parties namely the United National Party and the Sri Lanka Freedom Party,
· Providing importance to sovereignty of the parliament in the 1972 and 1978 constitutions and 
· Provision of a majoritarian referendum in the 1978 constitution (not practised yet).

Sri Lanka needs to consider a solution to her ethnic problem based on federal principles. Federalism, which is non-majoritarian in character, is a stepping-stone to contain secession. However, the outcome of the third round of peace talks between the two parties is the acceptance of the political framework of federalism.

2. Meaning of Federalism

A federal structure has two systems of governments - the centre and the regions - both exist on the basis of equality, both act directly on the people within their own spheres of authority and neither has powers to encroach on the authority of the other. The sovereignty in a federal system is divided between the centre and the federated regions. Authors for federalism identify the following main features:

1. A written constitution that spells out the division of powers of the two systems of government – the centre and the regions. 

2. A bicameral parliament in which one chamber represents the people at large and the other the constituent regions of the federation. The chamber that represents the constituent regions of the federation has equal number of members per region regardless of the size of the region. 

3. The amendment to the federal constitution requires the consent of the regions, thus removing the monopoly of the central government in the amendment process. 

4. Federated regions are given authority to write their own constitutions within their allotted powers and to alter their constitutions unilaterally. 

5. Federated regions have permanent and guaranteed autonomy. 

6. Regional governments’ share of powers is relatively large in federations in comparison with that of regional governments in unitary states.

3. Fear of Secession

Most of the Sinhala politicians and other Sri Lankan establishments are very much scared of the word 'federalism' because they have a fear that federalism eventually creates two new sovereign states. It is not true. Federalism, in fact, in a democratic set up preserves the political unity of the country and further the co-existence of the diverse groups in one and the same state. However, federalism is incompatible with totalitarian regimes. Canada and Switzerland are the old, prosperous and successful federations while India has been able to maintain the federation intact for the past 55 years. Although Canada and India have separatist sentiments in some parts of their countries, these countries are able to sustain the federation because of their democracy. Canada and India are often referred to as centripetal federations.

The creation of Bangladesh and Eriteria by secession, the dissolutions of Soviet Union and Yugoslavia can cause concerns in the minds of Sinhalese regarding federation. All these separations occurred in the former federal countries Pakistan, Soviet Union and Yugoslavia. Former Ethiopia was not a federal country at the time of separation. The break-up of Pakistan, Ethiopia, Soviet Union, and Yugoslavia had nothing to do with the federal structure. These countries were broken apart mainly due to the following reasons:

· These governments were technically undemocratic (meaning Pakistan and Ethiopia were under military dictatorship, and Soviet Union and Yugoslavia were under one party rule). As a result, there had been lack of credible democratic institutions that could have put together such diverse populations. 

· The dominance of West Pakistanis against East Pakistanis, Russians against other ethnic republics and Serbians against other ethnic groups led the other groups to assert their own nationalism.

It is interesting to note that Eriteria as an autonomous unit was federated with Ethiopia under the United Nations declaration in 1952. This federal arrangement was not honoured by the government of the late Emperor Haile Selassie due to his absolutism and his lack of interest in power sharing This resulted in the commencement of armed resistance by the Eriterian people in 1961. The Eriterian People’s Liberation Front (EPLF) was the main resistance organization. The 1974 revolution that overthrew the feudal monarchy was a turning point and this revolution eventually created a dictator General Menghistu.

Ethiopian Military government faced rebellions particularly in the Eriterian and Tigrean regions in 1980s. In 1991 a rebellion group consisting of Eriterian, Tigrean and other ethnic forces defeated Gen. Menghistu and his army. The rebels agreed that Eriteria would become an independent nation. Eriterian people organised a plebiscite to separate from Ethiopia in 1993 under international supervision and won the plebiscite in favour of separation.

With regard to Bangladesh, Mujibur Rahman’s Awami League fought the December 1970 election on an autonomy platform based on his famous six-point program in the former East Pakistan. His party polled 72.6% of the votes and won 165 out of 167 seats in East Pakistan. His party also had a clear majority in the parliament of Pakistan as a whole. Pakistan military authorities created the problem for themselves by not handing over the power to Rahman’s Awami League. Indian invasion on humanitarian grounds liberated Bangladesh people from Pakistan.

These countries even after losing their members have adopted again the federal constitutions for their remaining ethnic members. The 1994 Ethiopian constitution, remarkably a sophisticated document and surely a big radical change in the Ethiopian constitutional tradition, allows that every nation, nationality, and people in Ethiopia has an unconditional right to self-determination including the right to secession. The right to secession is in contradiction with the very idea of a federal constitution and this right is a confederal feature. By granting this right Ethiopians have succeeded in bringing the Somalis of the Ogaden region and the Tigrean people to stay within Ethiopia. This clearly demonstrates the fact that federal solution is appropriate for diverse population.

4. Federal Executive

First of all it is important to compare the executive system in federal countries. The most successive federations in the world are the USA, Canada, Switzerland and Australia. The executive power vested at the national or federal level of these countries varies.

4.1 Parliamentary System: Traditionally this system comes from the British. In this system, the leader of the winning party becomes the Prime Minister and choses the members of his cabinet. The Prime Minister and the members of his cabinet are members of Parliament. Conventionally parliamentary system embodies a fusion of powers, and presidential system embodies a separation of powers. The separation of powers is inevitably represented as a separation among three branches of a government namely executive, legislative and judicial. One weakness of the parliamentary system is that its security of tenure is dependant on the support of the Parliament. A government can fall before the end of its term if a no-confidence motion is passed in parliament. In Australia and Canada, British system has been followed.

4.2 Presidential system: In the USA, the executive President is elected by the popular vote and chooses the members of his cabinet. It is noted that the President and members of his cabinet do not sit in the Congress. This model departed decisively from the British model (where the executives are drawn from Parliament) and it addressed the separation of powers of the three branches of a government namely executive, legislative and judicial functions. The security of tenure is guaranteed.

4.3 Collegiate Executive: This is also referred to as plural executive in which a number of members from two or more main political parties is elected by the parliament or people. Switzerland is an example of this model, which addresses the separation of powers, and the government can continue in office even if a government bill is defeated in parliament.

5. Comparative Analysis

The comparative approach is important in order to understand the political systems of any country. That approach forces anyone to look at a particular system objectively. It enables anyone to find out similarities or differences in institutions and processes. The comparative approach is the better way of understanding of how countries with different histories, different ethnic composition and different social problems have approached the creation of institutions and processes of government to suit them. The author intends to analyse the federal systems of Belgium and Switzerland because they are small in size, consist of a few communities and represent a consensus model.

5.1 Belgium

Belgium has three communities namely – the Flemish speaking community (Dutch), the French speaking community and the German speaking community, and three regions – Flanders, Walloon and Brussels. Germans live in east part of Wallon and Brussels is a bilingual region. The linguistic proportion of the Flemish, the French and the German communities are about 60%, 40% and less than 1% respectively. The official languages are Dutch, French, and German. Belgium has a parliamentary executive system.

Belgium has seen four constitutional reforms of 1970, 1980, 1988-89 and 1993 and these progressive and peaceful reforms have transformed the country from a unitarian state into a federal state. The 1970 reforms constitutionally recognised three cultural communities based on language – a Flemish, a French and a German. The 1993 constitutional revision has furthered devolution into a federation and has left the Belgian federal government responsible for little more than finance, foreign policy, justice and defence. Belgium has three levels of government – federal, regional and linguistic community. Belgium is a good example of territorial and non-territorial federalism. The regional councils serve as territorial federation, and the community councils serve as non-territorial federalism since some members are elected to the Flemish and French community councils from Brussels region.

Although the federal executive power belongs to the king, he exercises the power through the Prime Minister and his council of ministers. The Belgian constitution requires formally that the executive include ministers of the Dutch speaking and the French speaking communities. This formal rule came into existence in 1970. Art.99 of the federal constitution specifies that the Council of Ministers includes fifteen members at most. With the possible exception of the Prime Minister, the Council of Ministers includes as many French-speaking members as Dutch-speaking members. This means that the cabinet contains an equal number of French and Flemish speaking ministers, requiring the government to have a coalition. The Prime Minister can be from any community. Practically, the political parties are divided along linguistic lines.

The federal parliament consists of two chambers, the chamber of representatives and the senate. The members of the federal parliament are elected for a period of four years. The election is on the basis of proportional representation. The chamber of representatives has 150 deputies elected by the population at large. The senate has 71 members representing the communities and regions and are divided into three categories: · 40 directly-elected senators (25 from the Dutch-speaking electoral college and 15 from the French-speaking electoral college);

 · 21 community senators (10 from the Flemish Community, 10 from the French Community and 1 from the German-speaking Community), appointed by the legislative assemblies of the three Communities; · 10 co-opted senators, six of whom appointed by the Dutch-speaking linguistic group and four by the French-speaking linguistic group. The two chambers no longer have the same powers, but in some fields the two houses have equal powers. These fields are: the revision of the Constitution, the fundamental laws concerning the Belgian state structure, the approval of international treaties, laws relating to the Council of State, proposals of candidates for the Court of Arbitration, the Court of Cassation and the Council of State.

The positions of the Flemish and Dutch communities in both houses are approximately according to the population proportion. Accordingly, the Flemish community gets about 60% representation in both houses. In accordance with the constitutional formula, the Dutch gets 41 senators, the French gets 29 and the German gets 1 in the senate. A true federation would have distributed equal number of members in the senate between the Dutch and French communities. The minority veto is still possible in the senate because of the constitutional requirement of the qualified two-third majority for amending the constitution and the Dutch do not have 48 members in the senate.

The Regions and Communities each have their own parliament. The three regions and the three linguistic groups are represented by the following directly elected councils:

· A combined council for the Flanders Regional Council and the Flemish Community Council. This combined council has members from the Flanders regions and some members from the Dutch-language group of the Brussels-Capital Council. 

· The Council of the Brussels-Capital Region consists of members from the Dutch-language group and the French-language group since the region is bilingual. 

· The Council of the Walloon Region consists of members from the Waloon region. 

· The Council of the French Community consists of members from the Walloon Region Council plus some members from the French-language group of the Brussels-Capital Council. 

· The German Community Council has members from the German-speaking Community. 

. The constitution can be amended by two-third majority in both houses of the parliament. Article 4 provides that the limits of the four linguistic regions can only be changed or modified by a law adopted by majority vote in each linguistic group in each Chamber, on the condition that the majority of the members of each group are gathered together and from the moment that the total of affirmative votes given by the two linguistic groups is equal to at least two-thirds of the votes expressed. 
In other words, this must be passed with a two-thirds majority including the concurrent majority of each linguistic group. Belgium particularly in their reform process looked for the idea of government by grand coalition to protect the minority Walloon region. This grand coalition has been in existence in Belgium since 1970 and the executive has been equally divided except for the Prime Minister. Their reforms established executive power sharing and linguistic autonomy firstly under the unitary state but the reforms did not satisfy the aspirations of the communities. This finally drove them to go for a federation. This clearly exhibits that any power sharing deal between diverse groups in a unitary state is always under pressure to go for a federation.

5.2 Switzerland

Switzerland has three major communities namely – the Germans, the French and the Italians. The linguistic proportions of the above are 63.6%, 19.2% and 7.6% respectively. The official languages are German, French, Italian and Romanash. Swiss has twenty-six cantons – twenty full cantons and six half cantons.

The Swiss federal constitution was adopted in 1848 and it was revised substantially in 1874. The 1874 constitution has been replaced by a new constitution, which has been formally adopted by referendum on 18 April 1999. The new constitution has not changed the structure of the Swiss federation, but it solidifies the framework of human rights and fundamental freedoms.

Switzerland has a hybrid form of government. Switzerland had not followed the USA model with regard to the election of the President because they felt that the US President had enormous powers. In Switzerland, executive power is vested in a federal council consisting of seven members. The seven members are elected to four years term by the federal assembly. The Federal Assembly elects one of the seven members as President and another as Vice-President for a term of one year. The constitution prohibits their re-election for the following year. The President is not eligible to serve as Vice-President for the following year. The federal council operates as a collective body in making decisions.

All the governments in Switzerland since 1848 have been coalition governments. The ruling federal council is selected from the main political parties – Social Democrats, Radical Free Democrats, Christian Democrats and Swiss Peoples Party. The coalition government is based on the ‘magic formula ’ of 2:2:2:1 established in 1959. This political arrangement is strictly followed even though it is not a formal requirement. The major communities the Germans, the French and the Italians are represented in the federal council.

Switzerland’s bicameralism is a true and full one because both houses enjoy equal status in passing legislation. The National Council is composed of 200 members elected directly by the people according to the system of proportional representation. Each canton is an electoral district. The Council of states consists of 46 delegates and members of this council are elected by their respective cantons, two from each full canton and one from each half canton. The elections of the council of states are determined by the cantons. In some cantons members are elected by the people and in others members are elected by the cantons' legislatures.

Direct democracy is encouraged through referendum. Amendments to the constitution are to be approved in a referendum by a majority of all the electors voting and by a majority of the electors voting in a majority of the cantons. This special majority is required for the decision to join collective security organization or international bodies. It is also possible for 100,000 Swiss Citizens to initiate a revision of the constitution. Sovereign citizens can challenge the validity of the federal law. Either 50,000 citizens entitled to vote or of eight cantons demand a referendum on a law passed by the federal parliament so that the referendum can either confirm its constitutional validity or annul it. A simple majority is enough for this purpose and the majority of cantons is not required.

The federal court is the highest federal authority. The federal court deals with disputes between the federation and the cantons and between the cantons. In addition it deals with disputes of international law, intercantonal law and cantonal constitutional rights. However, the acts of the federal assembly and the federal council cannot be contested before the federal court. According to article 191(b) the cantons establish judicial authorities for the adjudication of civil law and public law disputes as well as criminal cases.The organization of the judiciary, civil and criminal justice, and execution of criminal penalties and measures are matters for the cantons in accordance with articles 122(2) and 123(2). The cantons have their own cantonal courts and they exercise jurisdiction to apply both the laws of the federal government and the laws of the cantons.

They have 26 cantons because their aspirations of self-government have been historically attached to cantons and the cantons are not willing to merge with any other cantons of the same linguistic group. For example, Jura (French speaking), which was a part of canton Bern (German), became a new canton in 1979 and did not have a desire to join with the rest of the French speaking cantons. Swiss is one of the models of exceptional federation.

5.3 Summary

Swiss always has a federal tradition while Belgium has not. Swiss people organised themselves as a federal people after centuries of existing as a confederation. Although both countries operate a consensus model, Belgium has formally adopted the consensus model. Both federations have satisfied the four principles - two primary principles (grand coalition and segmental autonomy) and two secondary principles (proportionality and minority veto) formulated by Arend Lijphart. Minority veto in Belgium is exercised through the senate. As mentioned earlier, all changes in the Swiss constitution must be approved in a referendum by a majority of all votes cast and by a majority of cantons. This gives special protection to the smaller cantons and they can block any amendment if they are united. This is generally some sort of veto.

The amendment process with regard to Belgium and Switzerland is entirely different. Usually in a federal system an amendment to the constitution is authorised by (i) resolution of both Houses of the federal parliament and (ii) ratification by a majority of component regions. For example, the amendment of the Constitution of the USA is to be approved by a majority of two-thirds of the members of both Houses of the Congress. The amendment is then to be ratified by three-fourths of the legislatures of the States (Article 5). The amendment to the Constitution of Canada is now governed by Section 38 of the Constitution Act 1982. Amendment is authorised by resolution of both Houses and ratification by resolution of the Legislative Assemblies of at least two-third of the Provinces having at least fifty per cent of the population of all the provinces according to the latest general census. 

Article 368 of the Indian Constitution prescribes approval by a majority of the total membership of both Houses of Parliament and no less than two thirds of the members present and voting. If, however, the amendment is concerned with the federal distribution of powers, it must be also ratified by no less than one half of the States.

6. Conclusion

A fully pledged federation in Sri Lanka will permit Sinhalese, Tamils, Muslims and other communities to live in peace. This will ensure the unity and territorial integrity of Sri Lanka.


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