Part III – Power Sharing

by R. Cholan

In Part II, I had shown how the federal constitutions in the three examples confer the powers to regional governments by default. Powers of the central governments are defined, and those of the regional governments are not. All powers not granted to the central government are those of the regional governments.

This demarcation of powers is unambiguous in some matters, such as education, healthcare, industries, agriculture, etc., which are entirely under the regional governments. The power over foreign-affairs is clearly under the central government. There are, however, other ‘topics’ that come under the purview of both central and regional governments, such as judiciary, taxation and finances, armed forces, etc.

I would like to very briefly look at how federal constitutions have separated the roles of the central and regional governments in these matters.

Serbia and Montenegro has only one constitutionally defined judicial body at the center called ‘Court of Serbia and Montenegro’. It has a well defined narrow role of adjudicating disputes between central and regional governments, and between regional governments. Citizens may also use the court on infringement of freedoms guaranteed by the constitution. See endnote.[1] Other, civil and criminal, judiciaries are left by default to the regional governments.

The constitution also provides equality to the two regions in the composition of the court.

Article 47: The Court of Serbia and Montenegro shall have an equal number of judges from both member states.

Bosnia and Herzegovina similarly has a ‘Constitutional Court’, the jurisdiction of which is limited to disputes between center and regions, and between regions. See endnote.[2]  Other civil and criminal judiciaries are regional functions. In this instance also judges are equally distributed between ethnic groups.

Article VI Constitutional Court: Paragraph 1 Composition: The Constitutional Court of Bosnia and Herzegovina shall have nine members. (a) Four members shall be selected by the House of Representatives of the Federation, and two members by the Assembly of the Republika Srpska. The remaining three members shall be selected by the President of the European Court of Human Rights after consultation with the Presidency.

The judicial system in the US is somewhat complex (US Supreme Court, State Supreme Courts, and the lower courts, Courts of Appeal, etc., but there is demarcation of jurisdiction). For the sake of brevity, let me not go into details.

The central courts of these countries do have one power over the regions and that is to harmonize the regional laws with the constitution.

In the arena of ‘Law and Order’ (Police Force), in all three countries, the central police (eg: FBI in the US) has limited tasks. The regional governments (State Police, Town Police, etc.) bear greater responsibility in the day-to-day maintenance of law and order.

The US constitution allows for direct taxation by the central government (See endnote[3]). The States by virtue of the powers retained under the constitution also have taxation powers. We who live in the US are painfully aware of the state taxation (state income tax, sales tax, property tax, etc) in addition to federal taxes.

In Bosnia and Herzegovina, the regional governments provide the funding for the central government, with taxes raised in each region. See endnote.[4]

Article VIII Finances Paragraph 3: The Federation shall provide two-thirds, and the Republika Srpska one-third, of the revenues required by the budget…

In Serbia and Montenegro also the regional governments provide the funds for the central government.

Article 18: The member states shall provide funds for the carrying out of the entrusted competencies and additional affairs of Serbia and Montenegro.

The US has a national army. In addition, each state in the US also has a militia called the ‘National Guard’, under the control of the state governments. The commander-in-chief is the US President.[5]

Article II: Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States

The other two countries have their armies under the command of a team of persons, with equal representation from the regions. The forces in each region are kept separate.

In Serbia and Montenegro the armed forces are under the control of a ‘Supreme Defense Council’.

Article 56: The Supreme Defence Council shall be the Commander-in-Chief of the Armed Forces of Serbia and Montenegro deciding on the use of the armed forces. The Supreme Defence Council shall comprise the President of Serbia and Montenegro and the Presidents of the member states.

Article 57: Recruits shall do their National Service in the territory of the Member State whose nationals they are, with the possibility of doing in the territory of the other Member State if they so choose.

Bosnia and Herzegovina has the following on the armed forces. (The term ‘Presidency’ is explained later in this article).

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Article V: Paragraph 5 Standing Committee: (a) Each member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces. Neither Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina

Next, I would like to discuss as to how the central governments are structured under federalism.

Before you read further, please remember the fact that the central governments of these countries have powers only over foreign-affairs and inter-regional matters. All internal governance of each region are in the hands of the regional governments.

The following is only about the central governments.

The President of the country is elected by the Central Parliament (Assembly), with the following restrictions. See endnote for details[6]:

1. The President and the Speaker of the Assembly cannot be from the same member state.

2. The President cannot be from the same member state for two consecutive terms.

The Assembly (Parliament) has 126 seats, with 91 members from Serbia and 35 from Montenegro. Montenegrins who are 5% of the population command 28% of the seats in the assembly (asymmetric representation). The following restrictions apply. See endnote[7]:

1. The Speaker and Deputy Speaker of the Assembly may not be from the same member state.

2. Decisions are based on majority vote, but they must also be ratified by the majority of members from each member state.

The Council of Ministers (the Cabinet) has the following restrictions. See endnote[8]:

1. Two ministers must be from the same state as the President of Serbia and Montenegro, and three from the other.

2. Minister of Foreign Affairs and Minister of Defense must be from different member states. The same rule applies to their deputies as well.

There are numerous other instances of checks and balances to maintain parity between the member states at the center (in judiciary, armed services, etc), and readers are advised to read the full text for further information. Link.

This country has a three member Presidency instead of a single president – explicitly one Croat, one Bosniac and one Serb. See endnote[9].

Each member of the Presidency has ‘veto power’ if he/she decides that the decision taken is destructive to his/her territory. See endnote below for a full description[10].

This three-member Presidency is the commander-in-chief of the armed forces, as mentioned earlier.

The Parliament is bi-cameral (House of peoples and House of Representatives), each with equal number of Croats, Bosniacs and Serbs. Majority decisions made must also have at least one third support from each ethnic group. See endnote[11].

At first glance these provisions may appear restrictive and also as cumbersome or needless hurdles to smooth governance. But these restrictions apply only to the central government, which has limited functions in the governance of the country. In practical terms they present no real difficulties at all.

The fact that countries in the examples shown have so far functioned well, both in terms of internal stability and as responsible members of the international community, validates this assumption. For the Balkans (Serbians, Bosnians, Croats and Montenegrins) this is remarkable achievement indeed, considering that, in the nineties, these countries were the most unstable in the world.

It is also important to realize that these ‘restrictions’ constitute the linchpin of consent, for the different regions, with their disparate and sometimes incongruent needs, to agree to a federal union. Without such provisos of equality of status, it is impossible to get the regions to agree to be united as one country.

When this federal unity is accomplished, however, these countries will have only ‘one personality’ in the international scene and it is that of the ‘central government’. Foreigners don’t see these countries as in any way divided or fragmented. This is because foreigners deal with only the external-affairs policies of the country, which are under the control of the central government. Outsiders neither see, nor do they care about, how the schools are run, industries maintained, or healthcare rendered, in each region. These are internal matters of each region within the country that don’t concern the foreigners.

The central government also is the force that holds the regional governments together as one country, by supervising the inter-regional relationships and the country’s place as an entity in the international scene (foreign affairs). This role is a vital one, and cannot be downplayed. If the different ‘regions’ as constituents of a ‘whole-country’ are to be part of the international community they must cede these limited functions (foreign-affairs and inter-regional matters) to the central government. But it must also be admitted that the ‘central government’ has no role to play in the internal affairs of each ‘region’, which are matters only the people of each region with their own separate and unique needs must control.

Power sharing is allocation of the various responsibilities of governance to the different components of the federal setup. The regional governments assume responsibilities of internal governance of each region. The central government assumes responsibilities of the inter-regional matters and of the relations with foreign nations. Power sharing is all about allocation of duties.

For peace to return to Sri Lanka attitudes must change.

All need to acknowledge equality of status for all the ethnic and religious groups in the island. Sri Lanka is a multi-ethnic and multi-religious country, a fact often acknowledged even by the extremists, and must declare itself as ‘secular’ in its constitution. Secularism at the government level is a wonderful concept (even for regional governments), where the state stays out of the practice of religion (and ethnicity), and each group is free to pursue its own beliefs.

Unfounded fabrications that power sharing will lead to division of the country, and the fear-mongering that is going on about this, must cease. The public need to be educated about the true nature of federalism. A mass mobilization effort is needed for this.

The advantages of federalism for Sri Lanka are quite clear. It is the perfect compromise for the two extreme positions, of the Sinhalese wanting a unitary government and the Tamils wanting a separate state.

It is fortuitous that the two leaderships agreed to explore this option so easily and expeditiously. Unless one or both parties agreed to this only as tactical move to undermine it at a future date, a possibility that cannot be totally discounted, they should move forwards with the peace process.

An ISGA for the northeast province is the first logical step.

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[1]...Serbia and Montenegro Constitution: 4. The Court of Serbia and Montenegro

Jurisdiction; Article 46

The Court of Serbia and Montenegro shall:

- settle disputes as may arise between institutions of Serbia and Montenegro over matters related to their competencies under the Constitutional Charter;

- settle disputes as may arise between Serbia and Montenegro and one or both member states or between the two member states over matters related to their competencies;

- rule on petitions of citizens if no other recourse has been provided for in the event the institutions of Serbia and Montenegro have violated their rights or freedoms guaranteed by the Constitutional Charter;

- rule on whether the constitutions of the member states are in conformity with the Constitutional Charter;

- rule on whether the laws of Serbia and Montenegro are in conformity with the Constitutional Charter;

- rule on whether the laws of the member states are in conformity with the legislation of Serbia and Montenegro;

- rule on the legality of final administrative acts of the institutions of Serbia and Montenegro;

The Court shall give legal advice and opinions regarding the harmonisation of court practices.

[2]...Bosnia and Herzegovina Constitution; Article VI Constitutional Court; Paragraph 3 Jurisdiction
The Constitutional Court shall uphold this Constitution.
(a) The Constitutional Court shall have exclusive jurisdiction to decide any dispute that arises under this Constitution between the Entities or between Bosnia and Herzegovina and an Entity or Entities, or between institutions of Bosnia and Herzegovina, including but not limited to:
-- Whether an Entity's decision to establish a special parallel relationship with a neighboring state is consistent with this Constitution, including provisions concerning the sovereignty and territorial integrity of Bosnia and Herzegovina.
-- Whether any provision of an Entity's constitution or law is consistent with this Constitution.
Disputes may be referred only by a member of the Presidency, by the Chair of the Council of Ministers, by the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, by one-fourth of the members of either chamber of the Parliamentary Assembly, or by one-fourth of either chamber of a legislature of an Entity.
(b) The Constitutional Court shall also have appellate jurisdiction over issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina.
(c) The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court's decision.

[3]...US Constitution: Article I Section 8. The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.

[4]...Bosnia Herzegovina: Article VIII Finances

Paragraph 1 [Budget]: The Parliamentary Assembly shall each year, on the proposal of the Presidency, adopt a budget covering the expenditures required to carry out the responsibilities of institutions of Bosnia and Herzegovina and the international obligations of Bosnia and Herzegovina.

Paragraph 2 [Provisional Budget]: If no such budget is adopted in due time, the budget for the previous year shall be used on a provisional basis.

Paragraph 3 [Shares in Revenues]: The Federation shall provide two-thirds, and the Republika Srpska one-third, of the revenues required by the budget, except insofar as revenues are raised as specified by the Parliamentary Assembly.

[5]...US Constitution: Article I; Section 8: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

[6]...Serbia and Montenegro Constitution: Article 27…

If the elected President of Serbia and Montenegro comes from the same member state as the Speaker, the Speaker and Deputy Speaker shall switch their roles.

The President of Serbia and Montenegro shall not come from the same member state twice in succession...

[7]...Serbia and Montenegro Constitution:

Article 22 Non-accumulation of offices: The Speaker of the Parliament of Serbia and Montenegro and the President of Serbia and Montenegro shall not come from the same member state.

Article 23 Decision-making: The Parliament of Serbia and Montenegro shall take decisions by a majority vote of all Members of Parliament, provided that a decision has been supported by the majority of Members of Parliament from each member state.

[8]...Serbia and Montenegro Constitution: The Council of Ministers

Article 35 Election …

Two candidates for Ministers shall come from the same member state as the President of Serbia and Montenegro, while three of them shall come from the other member states.

Candidates for Foreign and Defence Ministers shall be selected from different member states, as well as their Deputies.

The Parliament shall vote for a list of candidates for the Council of Ministers.…

Article 36 Decision-making

The Council of Ministers shall take decisions by a majority of votes.

In the event of an equal number of votes, the casting vote is the President’s vote, provided that at least one Minister from the other member state votes in favour of the decision.

[9]...Bosnia and Herzegovina Constitution; Article V Presidency

The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska…

[10]...Bosnia and Herzegovina Constitution; Article V Presidency; Procedures Paragraph 2 (d) A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption.

[11]...Bosnia and Herzegovina Constitution: Article IV Parliamentary Assembly

The Parliamentary Assembly shall have two chambers: the House of Peoples and the House of Representatives

Paragraph 1 House of Peoples

The House of Peoples shall comprise 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).

(a) The designated Croat and Bosniac Delegates from the Federation shall be selected, respectively, by the Croat and Bosniac Delegates to the House of Peoples of the Federation. Delegates from the Republika Srpska shall be selected by the National Assembly of the Republika Srpska.

(b) Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosniac, three Croat, and three Serb Delegates are present.

Paragraph 2 House of Representatives

The House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska…

Paragraph 3 Procedures

(a)…

(b)...

(c) All legislation shall require the approval of both chambers.

(d) All decisions in both chambers shall be by majority of those present and voting. The Delegates and Members shall make their best efforts to see that the majority includes at least one- third of the votes of Delegates or Members from the territory of each Entity. If a majority vote does not include one-third of the votes of Delegates or Members from the territory of each Entity, the Chair and Deputy Chairs shall meet as a commission and attempt to obtain approval within three days of the vote. If those efforts fail, decisions shall be taken by a majority of those present and voting, provided that the dissenting votes do not include two-thirds or more of the Delegates or Members elected from either Entity.

(e) A proposed decision of the Parliamentary Assembly may be declared to be destructive of a vital interest of the Bosniac, Croat, or Serb people by a majority of, as appropriate, the Bosniac, Croat, or Serb Delegates selected in accordance with paragraph 1 (a) above. Such a proposed decision shall require for approval in the House of Peoples a majority of the Bosniac, of the Croat, and of the Serb Delegates present and voting.

(f) When a majority of the Bosniac, of the Croat, or of the Serb Delegates objects to the invocation of paragraph (e), the Chair of the House of Peoples shall immediately convene a Joint Commission comprising three Delegates, one each selected by the Bosniac, by the Croat, and by the Serb Delegates, to resolve the issue. If the Commission fails to do so within five days, the matter will be referred to the Constitutional Court, which shall in an expedited process review it for procedural regularity.