Dr Thwin Pa Pa, Professor of Law, University of Yangon 1

Module No: Law 5110

Module Name: Constitutions of ASEAN Countries (Elective Courses)

Lecture by Dr Thwin Pa Pa, Professor of Law, University of Yangon

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Some Reference Books for Subject:

 PETITA: Jurnal Kajian Ilmu Hukum dan Syariah, CONSTITUTIONAL PRACTICE OF

ASEAN’S COUNTRIES, Volume 7, Number 1, 2022 P-ISSN: 2502-8006 E-ISSN: 2549-
8274 DOI: Available at https://doi.org/10.22373/petita.v5i2.105
 John Alder, General Principles of Constitutional and Administrative Law, 4th Edition, 2002
 Elliot Bulmer, Federalism, IDEA 2nd Edition, 2017

Final Year Law Students are expected to bring key aspects of legal thinking. They are:
Knowledge, thinking skills, research skills, communication and collaboration by group work such
as presentation including self-management. Students are suggested and needed to read reference
books.

Federal, Confederate, and Unitary Government

When governments are formed over large geographic areas or nations, it often becomes necessary
to create smaller regional governments (states) as well. Political scientists have identified three
basic types of national governments by evaluating the amount of power and authority given to the
central (national) governments and to the regional governments (states/provinces). These can be
classified in the form of unitary governments, federations, and confederations. Each of these types
of governments can be found operating in the world today, and each is a potentially successful
means of structuring a state. They are separated by the role of the central government.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 2

In a unitary system of government, the central government holds most of the power. The unitary
state still has local and regional governmental offices, but these are under the direct control or
authority of the central government. The United Kingdom is one example of a unitary nation.
Parliament holds the governing power in the U.K., granting power to and removing it from the
local governments when it sees fit. France is also a unitary government. The national government
rules over the various provinces or departments. These local bodies carry out the directions of the
central government, but never act independently. of the central government.

Federalism is marked by a sharing of power between the central government and state, provincial,
or local governing bodies. The United States is one example of a federal republic. The U.S.
Constitution grants specific powers to the national government while retaining other powers for
the states. For example, the federal government can negotiate treaties with other countries while
state and local authorities cannot. State governments have the power to set and enforce driving
laws while the federal government lacks that ability. The United States, Canada, and Germany are
just some examples of modern federalist systems.

A confederation has a weak central authority that derives all its powers from the state or provincial
governments. The states of a confederation retain all the powers of an independent nation, such as
the right to maintain a military force, print money, and make treaties with other national powers.
The United States began its nationhood as a confederate state, under the Articles of Confederation.
However, the central government was too weak to sustain the burgeoning country. Therefore, the
founding fathers shifted to a federal system when drafting the Constitution. A contemporary
example of a confederation is the Commonwealth of Independent States, which is comprised of
several nations that were formerly part of the Soviet Union. These nations formed a loose
partnership to enable them to form a stronger national body than each individual state could
maintain.

Comparing Types of Government

One has only to look at the advantages and disadvantages of each system to see the greatest
differences among them. In a unitary system, laws and policies throughout the state are commonly
shared, laws are more easily passed since they need only be approved by the central government,
and laws are rarely contradictory since there is only one body making those laws. There are
disadvantages of this type of government. The central government may lose touch with or control
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 3

over a distant province or too much power in the central authority could result in tyranny
(governmental abuse of its authority). In a federal system, a degree of autonomy is given to the
individual states while maintaining a strong central authority and the possibility of tyranny is very
low. Federal systems still have their share of power struggles, such as those seen in the American
Civil War. Confederate governments are focused on states rights and the needs of the people in
each state. The government tends to be more in touch with its citizenry, and tyranny is much less
commonly seen. Unfortunately, confederations often break apart due to internal power struggles
and lack the resources of a strong centralized government.

Unitary and federal systems

The distinction between unitary and federal states

No modern country can be governed from a single location only. The affairs of municipalities and
rural areas must be left to the administration of local governments. Accordingly, all countries have
at least two levels of government: central and local. A number of countries also contain a third
level of government, which is responsible for the interests of more or less large regions.

The distribution of powers between different levels of government is an important aspect of

the constitutional organization of a state. Among states with two levels of government, distinctions
can be made on the basis of the greater or lesser autonomy granted to the local level. The British
government’s respect for local self-government has always been a characteristic of its constitution.
In contrast, France traditionally had kept its local authorities under strict central control. In
countries with three levels of government, the distribution of powers between the central and the
intermediate governments varies. States formed through the union of formerly independent states
usually maintain an intermediate level with considerable legislative, executive, and judicial
powers (as in the United States, Argentina, and Switzerland), though some grant few powers to
this level. The latter situation occurs often in countries that have introduced the intermediate level
as a correction to their previous choice of two levels—as Italy did in its constitution of 1948 and
Spain in its constitution of 1978.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 4

Depending on how a constitution organizes power between the central and subnational
governments, a country may be said to possess either a unitary or a federal system. In a unitary
system the only level of government besides the central is the local or municipal government.
Although local governments may enjoy considerable autonomy, their powers are not accorded
constitutional status; the central government determines which decisions to “devolve” to the local
level and may abolish local governments if it so chooses. In federal systems there is an intermediate
level of governmental authority between the central and the local; it usually consists of states or
provinces, though other entities (e.g., cantons or republics) may exist in some countries. Aside
from the number of levels, the most important distinction between a unitary system and a federal
one is that the states or provinces of a federal state have constitutionally protected sovereignty.
Within a federal system the state or provincial governments share sovereignty with the central
government and have final jurisdiction over a broad range of policy areas.

Federal and unitary systems are ideal types, representing the endpoints of a continuum. Most
countries fall somewhere in between the two extremes—states can be more or less unitary or more
or less federal. So-called “semifederal” countries occupy a middle category, possessing an
intermediate level of government that does not have the same protections of sovereignty that the
states or provinces of federal states enjoy.

A proper understanding of these types of constitution requires the consideration of additional

features of each type. The model federal state is characterized by the existence, at the national
level, of a written, rigid constitution guaranteeing the several intermediate governments not only
permanence and independence but also a full complement of legislative, executive, and judicial
powers. The national constitution enumerates the powers granted to the central government; the
remaining powers are reserved to the intermediate governments at the state or provincial level.
These subnational entities are generally represented at the national level, possibly on an equal
footing, in a second chamber of the national legislature (often called the upper house, or senate).
They also often are central to the process of amending the national constitution. For example, some
number of state or provincial legislatures may be required to consent to the ratification
of amendments passed by the federal legislature. States or provinces in federal systems also have
their own constitutions that define the institutions of their respective governments, as well as the
powers that are devolved further to their local governments. Such constitutional arrangements are
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 5

a guarantee against possible efforts of the central government to enlarge its jurisdiction and so
imperil the important political role that intermediate governments play in a federal system. More
than formal constitutional safeguards are required to preserve that role. Apart from constitutional
amendments, the central government may seek to broaden its own powers through the use of
constitutional clauses granting “implied powers.” In some federal states (e.g., Argentina and
India), there are emergency provisions by which the central government may suspend the powers
of individual state or provincial governments. If abused, these provisions—meant to be used only
in cases of rebellion or other severe disturbance against the constitutional order—may seriously
compromise the constitutionally enshrined principle of shared sovereignty that is the hallmark of
federalism. Even in established federal democracies (e.g., Canada, Germany, and the United
States), the exact distribution of powers between levels of government is a matter of constant
dispute between central and subnational governments. Disputes about federal-state matters are
often the subject of rulings in courts or constitutional tribunals or conferences involving the heads
of the central and subnational governments.

Semifederal states are also based, as a rule, on rigid written constitutions granting some limited
legislative and administrative (though seldom judicial) powers to the intermediate or regional
governments. But because regional governments in semifederal states possess jurisdiction only
over enumerated matters (and even here they are subject in part to the overriding powers of the
central authorities), their actual role and political influence within the system largely depend on
the tendency of the central government to buttress or to restrict their autonomy. Where the powers
granted by the constitution to the regional governments are particularly minimal, the semifederal
state will look in many respects like a unitary state. Where the powers are relatively large and the
central government favours their expansion—perhaps because the central government is itself a
coalition of national and regional parties—the state tends to assume federal characteristics, even
if the typical hallmarks of the federal system are not present. Spain and Belgium are good examples
of semifederal states that have become increasingly more federal in practice.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 6

Key Features and Characteristics of Federalism

The features of Federalism cuts across several key areas or factors of governance. They include;

1. Power Distribution: In a country practicing Federalism, powers are usually distributed

among the federal government and regional or state governments. In some countries such
as Nigeria, powers and governmental duties are grouped into three different lists – the
Exclusive, the Concurrent and the Residual list. These lists clearly define the scope and
powers and limitations of each level of government. Powers are also shared amongst the
arms of government namely; the Executive, the Legislature and the Judiciary. Each has
their own specific functions and isn’t constitutionally permitted to encroach into the
grounds of the other. They are however empowered by law to carry out checks and balances
on each other to prevent or stall governmental excesses.

2. Independent Judiciary: In a federal system of government, the Judiciary must be able to

take independent decisions. Their judgements and interpretation of the law should not be
influenced by any of the other arms of government. The main function of the Judiciary is
to deliberate over legal issues and questions, and to do so according to the constitution and
applicable laws. The true spirit of Federalism can only be retained when the Judiciary is
left to independently discharge its duties. The Judiciary is also expected to step in as
peacemaker when there are conflicts between the other two arms of government.

3. Supremacy of Constitution: The constitution used in any State practicing Federalism has
distinct characteristics. Firstly, the constitution has to be written, and on the other hand, it
also has to be rigids, as opposed to being flexible. This means that laws contained the
constitution, and indeed the constitution as a whole cannot be amended easily. It has to go
through a process of laid-down methods that specifically provides for constitutional
amendment. In addition, the constitution can only be amended through this process only if
the levels of government first agree. If they don’t agree, or one of them doesn’t, the
constitutional amendment cannot take place. On the former, a constitution is a written one
when the supreme laws of the land are contained in one document. Also, the powers of
each arm or level of government is clearly defined by it.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 7

Federalism also entails that the constitution should be the highest law of the land, and
would be over and above all of the people of that state; both the governed and those
governing. As a matter of fact, the constitution creates the office which those who govern
the people occupy, as well as defining their powers and limitations. The constitution in this
case stipulates or dictates the powers to be held by government and how they are to be
distributed. Federalism is an expression of the sovereignty and supremacy of the
constitution.

4. Bi cameral Legislature: The legislative arm in a country practicing Federalism is usually

bicameral in nature. This means that such country should have two legislative houses; often
the upper and lower house. Some scholars are of the opinion that bicameralism is practiced
in federalist states because the two houses would complement each other and also carry
out checks and balances on each other in an effort at accountability.
Another group of scholars are of the opinion that the higher house represents the interests
of the governing body, while the lower house, usually composed of more members than
the higher house, represents the interest of the State or the people.

5. Decentralization: This entails a lot of things, including the arms of government delegating
some of their powers and duties to individual and smaller bodies to carry out on their
behalf. This practice leads to the diffusion of powers into handleable chunks, and when
delegated to the appropriate subordinates, it often makes for efficiency in the business of
governance. However, the major meaning of decentralization in a federalist sense is that
all powers are not concentrated in one arm or level of government. Powers are shared
amongst them instead.

6. Revenue: Each tier of government should have their own source of revenue, and never
totally depend on the other for funds in a state of true Federalism.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 8

Pros and Cons of Practicing Federalism

Merits: First, the government is brought closer to the people, by means of the formation of various
levels of government. Each level has a group of people under it that it directly oversees. Those
governing are accessible to the people and due to their proximity, understand the plight of the
people better than officials from the Federal or Chief government.

Also, a federal state is a fruitful ground for different forms of democracy. Democracy has been
defined as an inclusive system of governance, and true Federalism also reflects that.

There’s also the reduced likelihood of fraud to occur among the government levels and arms, due
to the system of accountability put in place. These arms of government perform checks and
balances on themselves and query any questionable discoveries they make.

Demerits: Due to the many departments in a federal system, existing as a result of the principle of
decentralization, there’s often a delay in processes.

It is also hard to achieve uniformity of policies because all levels of government make decisions
for themselves and these decisions often differ from each other.

In addition, it is expected that since states in a federalist country often make and implement
different policies, it is likely that there’ll also be economic differences too. One cannot assuredly
say that the whole country is this particular economic state or not.

Aspects of Dicey's essential condition of federalism: Dicey wrote, “The essential characteristic
of federalism is the distribution of limited executive, legislative and judicial authority among
bodies which are coordinated with and independent of each other
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 9

Federalization in Myanmar

(a) Constitutional Design Options for Ethnically and Religiously Divided Societies
There are a number of constitutional design options that ethnically and religiously divided societies
might consider to bring about peace and facilitate democracy. These include federalism, a strongly
decentralised unitary government, and ‘power sharing. These measures can be supported by
electoral quotas which guarantee a minimum number of seats for specific groups, as well as the
provision of group rights (or individual rights with a group dimension).

(b) Federalism as a Design Option

Federalism is widely recognised as a viable constitutional design option for ethnically divided
societies in certain situations. It works particularly well where the ethnic/linguistic divisions
correspond to defined geographic units (as is the case, for example, in Belgium, Switzerland and
Canada). It can also be particularly effective where ethnic groups make political demands for
control over natural resources.
Federalism works by dividing legislative, executive and judicial powers vertically between the
centre and the regions (called states or provinces). Each state or province has its own representative
assembly, administration and powers of government. Often, these sub- units also have their own
taxation powers, so that they cannot be controlled by funding decisions made at the central level.

(c) Principles of Effective Federalism

There are several principles which must be adhered to in order for a federal model to function
effectively. Firstly, it is imperative that there is a clear constitutional specification of the powers
and responsibilities to be delegated to the federal and regional/provincial levels of government. It
is also important to have respect for the principle of non-domination, so that the federal level of
government does not act with illegitimate interference in provincial matters, or where a region has
special autonomy.
One way of achieving this autonomy can come through models that provide for separated finances.
This can be done through regions having defined tax-raising powers and/or a guaranteed regional
share of national revenue according to a clear budgetary formula.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 10

In order to maintain effective independence at the regional level, the settlement of disputes should
be conducted only by a neutral third-party umpire, typically a constitutional tribunal with defined
jurisdiction and powers.
The allocation of powers between the federal ‘centre’ and the regional level is governed by the
principle of subsidiarity. This principle holds that the level closest to the people concerned capable
of performing the function should exercise authority. In most federal systems, the central level
typically has primary responsibility for macro-economic policy, the federal reserve bank, national
infrastructure like ports, railways and national highways, foreign affairs and trade, and the armed
forces. Provincial powers typically include social services (schools and hospitals), the regulation
of regional commerce and industry, land tenure, law enforcement and justice, and the power to
make laws regulating local government.

Above all, effective models of federalism require a bona fide commitment from all sides to
preserve the unity of the state, subject to any constitutionally specified secession options that may
be agreed upon. When this condition is met, federalism can help to build a sense of national unity
and common purpose.

(d) Governance of Natural Resources

Federalism is particularly useful in situations where ethnic, religious or cultural minority groups
make persistent political demands for control of natural resources in a defined area of the country.
First, federalism allows for ownership of natural resources to be vested in subnational governments
as independent legal entities. This step often has great symbolic value and may help to satisfy part
of the political demand for local control of natural resources. At the same time, the vesting of
ownership of natural resources in subnational governments allows for a range of different options
regarding the management of those resources and the distribution of revenues. For example,
management control of natural resources could be devolved to the state/provincial level subject to
redistribution payments to poorer regions. Alternatively, large-scale natural resource projects with
high capital costs and skills requirements could be managed centrally, subject to a percentage share
of revenue going to the state/province. This sort of arrangement may be precisely what is required
to convince ethnic, cultural or religious minority groups to support the constitution.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 11

(e) The Constitution of the Union of Myanmar, 2008

The 2008 Constitution has some federalist features. It provides for the devolution of legislative
and administrative powers to the 7 states and 7 regions. There are also five self-administered zones,
one self-administered division and one union territory. Below that level, the 2008 Constitution
provides for further devolution of powers to districts, towns, villages and urban wards. Schedule
1 lists the Union Parliament’s legislative powers and Schedule 2 lists those of the state and regional
parliaments. However, all significant powers, including those over the exploitation of natural
resources, are retained at the Union level.
The regions and states’ powers, in turn, extend to what are arguably fairly insignificant matters
such as non-mechanized agriculture (Schedule Two, item 3(a), local dams (Schedule Two, item
3(e), freshwater fisheries (Schedule Two, item 3(f), salt and salt products (Schedule Two, item
4(b), the cutting and polishing of gemstones within their area of jurisdiction (Schedule Two, item
4(b), and village firewood (Schedule Two, item 4(c).
The Constitutional Tribunal has the power under s 322(e) to decide ‘disputes arising out of the
rights and duties of the Union and a Region, a State or a Self-Administered Area in implementing
the Union Law by a Region, State or Self-Administered Area’.
Based on the extent of the powers devolved and the capacity of the states and regions to exercise
them autonomously of the central government, Myanmar under the 2008 Constitution is best
described as a semi-decentralized unitary state rather than a federation. As currently
formulated, the 2008 Constitution does not provide sufficient guarantees of respect for regional
autonomy and local control over natural resources.

(f) Challenges

Consideration 1: Within the constraints of the current 2008 Constitution, it is possible (or not) to
develop a legislative revenue-sharing model that could devolve a greater share of natural resource
revenue to the states and regions. Here, a cautious approach is warranted because one of the
legacies of past administration (some researchers said that Centralization) is that administrative
capacity still needs to be built in the states and regions to take on more significant roles. In the
short term, it would be futile and ineffective to distribute revenue if that revenue could not be spent
and administered effectively.
 Dr Thwin Pa Pa, Professor of Law, University of Yangon 12

Consideration 2: Should the time to reform and/or replace the 2008 Constitution come, attention
needs to be given to amending the division of powers (Schedules 1 and 2), providing greater
autonomy for regional and state parliaments and administrations, and to enhancing the
Constitutional Tribunal’s power to enforce federalist principles.