The Role of State Constitutions in Protecting ... - International IDEA

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After the adoption of the constitution, two more bodies have been added to the list of watchdogs: ◆ National Commission for Minorities: Constituted by the government of India in 1978. The National Commission for Minorities, a statutory body, was set up under The National Commission for Minorities Act, 1992. ◆ National Human Rights Commission: Constituted under The Protection of Human Rights Act, 1993, an Act to provide for the constitution of a National Human Rights Commission. Special provisions for different areas/states The Indian constitution is full of special provisions for special areas. Of these two merit special attention: The constitution allows for the formation of Autonomous Councils to protect the rights of the minorities within the state. This provision has been used extensively in the north eastern parts of the country and has provided modicum of self-rule to these communities. Furthermore, there are many provisions in the constitution exempting some area or the other from the application of central laws. The most famous of these is the Article 370 that exempts the state of Jammu and Kashmir from the ambit of federal laws. It says: (a) the power of Parliament to make laws for the said State shall be limited to- (i) those matters in the Union list and the Concurrent list which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of accession of the State to the Dominion Legislature may make laws for that State; and (ii) such other matters in the said Lists, as, with the concurrence of the Government of the State, the President may by order specify.” It needs to be reiterated that there are similar provisions in the constitution for a number of other states. To conclude it is worth emphasizing that beyond constitutional design and institutional interplay, politics has played a role as the unifying force. For instance, the Indian National Congress created a broad social coalition. The politicization of social cleavages has had an impact on federalism as has the regional parties in deepening federalism. India has adopted the salad bowl versus the melting pot model of national unity and it is a model that has served it well. 28
AUSTRALIAN FEDERALISM, STATE CONSTITUTIONS AND THE PROTECTION OF MINORITY RIGHTS Cheryl Saunders Introduction This paper is written for workshops on the role of State Constitutions in the protection of National and Minority Rights under Federalism, with particular reference to issues that might be relevant to a democratic transition in Burma. In order to decide what is relevant and what is not, it is necessary to make some preliminary points about the context of Australian federalism. First, in many ways Australia is very different to Burma. It is a prosperous and peaceful country, a long way away from the world's centers of conflict. It has a robust form of majoritarian democracy, which is so well established that it is taken for granted. It has a small population, of only 19 million people. The population is culturally diverse, but largely as a result of relatively recent immigration. With the very important exception of the indigenous people, there is no minority culture with deep roots in the country. Ethnicity is not a significant factor in the design of the constitutional system. There are some potential similarities as well, however, around which this paper has been developed. The Australian federation is the result of a compromise between six, distinct colonial communities, which saw some mutual advantage in unity, but which also wanted to retain considerable autonomy. Those colonies (now the Australian States) varied in size and wealth. Despite the absence of cultural cleavages, they had very different interests, and there were traditional suspicions between them. Nevertheless, by astonishingly democratic means, they managed to agree on a form of federal union. The essential elements of that union are still intact, despite much grumbling, one serious attempt at secession and a widespread but probably minority view that Australia should have a unitary form of government. The original colonies are now the States and their variety persists. If anything, federation has provided an institutional framework through which their differences can democratically be expressed. Particular aspects of the Australian experience that may be of interest to Burma include the following. The first is the way in which, and the process by which, the Australian Constitution originally accommodated the conflicting interests of the constituent parts of the federation. A second is the strengths and weaknesses of the manner in which the balance was struck between central, or Commonwealth, and State power in Australia, including the significance of State Constitutions. The third is the way in which cultural minorities have fared under the Australian federation; in particular, the indigenous people of Australia. 29
Page 1 and 2: REPORT The Role of State Constituti
Page 3 and 4: Executive Summary Executive Summary
Page 5 and 6: He stressed the need for Burmese to
Page 7 and 8: nurturing accommodations. These cro
Page 9 and 10: Nigeria’s history of constitution
Page 11 and 12: Is a census important? A proper cen
Page 13 and 14: senior positions and this has helpe
Page 15 and 16: BURMA: STATE CONSTITUTIONS AND THE
Page 17 and 18: The 1947 Union Constitution, which
Page 19 and 20: It may not be enough therefore to a
Page 21 and 22: the Karen and other minorities were
Page 23 and 24: ◆ exact outcome is determined by
Page 25 and 26: divisions in India is such that it
Page 27 and 28: All minorities, whether based on re
Page 29: the exceptions from the traditional
Page 33 and 34: Once the draft Australian federal C
Page 35 and 36: federation, and of the accommodatio
Page 37 and 38: minority rights. The Australian fed
Page 39 and 40: ◆ A few social powers, although t
Page 41 and 42: dependent than ever on revenue redi
Page 43 and 44: The situation began to change in th
Page 45 and 46: NIGERIA’S EXPERIENCE IN MANAGING
Page 47 and 48: emaining twenty four were indirectl
Page 49 and 50: …federalism include: • The need
Page 51 and 52: almajirai, 31 security inadequacy,
Page 53 and 54: ◆ Constitutional prohibition of S
Page 55 and 56: List of Participating Groups: The w

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