Basic comparative concepts of Federalism

1. Basic comparative concepts of Federalism Thursday

2. Basic Elements of Federalism Constitution Shared Rule Self Rule

3. What is a federal system? A federal political system involves (at least) two spheres of government within the same polity, each with a measure of constitutional autonomy, each directly governing and accountable to the people (or a section of them).

4. Different goals of Federalism Vertical Separation of Powers Accommodate Diversity Strengthen the smaller Units Economic Integration Avoiding secession Main Challenges and Critics of Federalism Inefficiency Two Complicated Inequality No leadership

5. Pairs of competing values Federalism balances and enables competing values to be secured: • Self-rule and shared rule • Unity and diversity • Uniformity and difference • Solidarity and self-reliance • Co-operation and competition One challenge in designing a federal system is to capture each of these in a suitable way

6. Other constitutional values Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include: • Legitimacy • Democracy • Constitutionalism, including the rule of law • Effective and accountable government • Mutual respect; a willingness to share power; appreciation of diversity, solidarity, tolerance

7. Importance of institutions • Importance of specifically federal institutions are obvious (eg division of powers) • Institutions of government equally important • Mechanism through which federalism delivered • Mechanism through which other values delivered • Institutional design must capture • Aspirations for federalism • Aspirations for government generally

8. General observations • Many of the institutions that we presently use were designed for unitary states • They need to be fully adapted to the different context of federalism • Range of possibilities is not fixed • Increasing experimentation in recent years • Eg asymmetry, forms of co-operation

9. Comparative federalism • Comparative constitutionalism now a very hot topic • Relevant to: • Making a Constitution • Using a Constitution (in particular, interpretation by courts) • Problems of method of comparison • Particularly for institutional comparison

10. Variations between federations • Degrees of diversity • State of the pre-federal state(s) • History • Legal system • Legal philosophy • Doctrine • Goals of Federations • Democratic system

11. Institutional building blocks: overview • Two (+) spheres of government • A division of powers • A division of resources • Constituent representation in central institutions • (some) constituent autonomy with own institutions • Prescribed common standards in relation to, for example, governance, rights, economic union • Entrenched Constitution, effectively enforced

12. Two spheres of government • Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities • How many units? • Not too many, not too few… • Borders. • How are they drawn & changed? • According to what criteria? • Symmetry or asymmetry

13. Division of powers • What powers? • Potentially, legislative, executive, judicial • How? • Horizontal/vertical/mixed • Exclusive/concurrent/shared • Provision for co-operation? • Who gets what?

14. Division of resources • This includes taxation, other revenues, loan funds, grants • Mechanism likely to be influenced by the approach to the division of powers • Horizontal/vertical • Exclusive/concurrent • Fiscal Equalisation • Bases • Process • Constitutional mandate?

15. Unit representation at the Centre • Why? • Mixture of symbolic and practical reasons • Typical mechanisms for representation • Upper House of central legislature • Making and changing Constitution • Other options • Choice of President/Head of State • Composition of government/cabinet • Composition of Constitutional Court • Central Bank; Fiscal Commission, etc

16. Institutions of the federal units • Designed with federal and other governance values in mind • Quality equally important • Significance of autonomy (within overall constitutional limits) • Separate sub-national constitutions? • The issue of secession

17. Common standards Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to: • Governance (democracy, accountability, republicanism) • Human rights • Economic union (mobility of people, economic activity)

18. Constitution of the federal state The Constitution should: • Be made by a suitable process • Create the central & constituent governments • Provide the institutional framework • Provide the federal framework • Provide the means for its own alteration

19. Protection & enforcement • A mixture of rigid and flexible • Federal quality of amendment procedure • Effectively enforced: • Usually, general or specialist constitutional court • Other options? Switzerland (sui generis). USA? • Techniques for conflict avoidance: SA • Some internal flexibility eg through co-operation

20. Challenges • Making a commitment to federalism • Developing a federal culture • Building sufficient capacity in smaller, poorer units • Ensuring accountability, transparency, responsiveness in all spheres of government and for shared programs • Avoiding unproductive competition & disputes • Providing flexibility to meet new needs

21. Distribution of Powers Self Rule

22. Main Questions: Purpose of Distribution Who decides? Criteria‘s What is distributed Concept and Technique of Distribution

23. Who decides Constitution maker Federal Legislature Both Court (US, EU) Common Law: Family Law, Property Law, Contract, Criminal Law, Procedure, commercial law etc.

24. Purpose of Distribution and Criteria’s Purpose Criteria’s Principles Legitimacy Efficiency Subsidiary Principle Diversity Financial Capacity Democracy Commerce Clause Justice Need for Coordination Necessary and Proper Clause Need for a uniform solution Interest of the task limited to the region Delegation to Local Authorities

25. What is distributed Branches of Government Financial Competences Governmental Tasks Constitution Making Income: Taxes, Grants, Bonds, Loans Foreign Policy Incl. Defence Legislation Individual / col- lective rights Execution Mineral Resource, Water etc. Public Services Judiciary Police Education, Cul- ture Common Law, Codi- fication Expenditures Health, Environment Spending Power Economy and Development Financial Equalisation Civil Law Common Law

26. Techniques of Distribution Concept Technique Bottom up Exclusive Parallel Top Down Concurrent Parallel Distribution General Clauses Supremacy Detailed Regulations

27. Legislatures in federations • The first of the governance institutions • Others: • Executive • Courts • All exist in both federal & unitary states • All are necessarily affected by federalism • NB: need to consider both spheres

28. Underlying themes • Legitimacy • Democracy (representation of the people overall • Federalism (representation of the people federally organised) • Effectiveness • Capacity to do the job • In a way that reflects the federal character of the polity

29. Context Legislatures are affected by: • Form of executive government • Presidential • Parliamentary • Other • Use of direct democracy • Choice of electoral system • Concept of federal division of power

30. What (federal) legislatures do • Make/approve law • Authorise tax/expenditure/budgets • Accountability role • Role in constitutional change • Treaty ratification? • Role in executive/judicial appointments? • Other specifically federal functions? • Federal intervention; interstate compacts, grant distribution etc

31. What (federal) legislatures don’t do • Have final authority over all subjects of legislation • Have final authority over the constituent units • Other federal limits on the manner in which they exercise their powers? • Requirement of uniformity? • Principle of federal comity?

32. Designing a federal legislature • How to capture both: • Legitimacy • Effectiveness • In a way that supplements • Democracy • Federalism • So as to carry out the tasks required

33. The usual answer (applicable in most federations) • A bicameral legislature, comprising • A popular chamber, performing the traditional democratic role • A federal chamber, performing a specifically federal role • In fact, a bit more complicated. Consider: • How each Chamber is constituted • Who does what?

34. The “popular” Chamber • Represents the people overall • Has powers to match (money; government confidence) • Elected for fixed or flexible term • Federal influences: • Electoral system • Units as electoral building blocks • Minimum unit representation • Other

35. The “federal” Chamber What does it mean to be a federal Chamber? Some variables: • Representation of units or of people organised in units • Symmetry or asymmetry • Powers • Significance, for federalism

36. Two (proto) types (on which many variations are possible) • Type 1: Federal chamber represents the units as units • Governments or legislatures? • Veto over legislation affecting units • Other? Eg judges, treaties, constitutional change, federal fiscal arrangements • Probably not: budget, government confidence • Co-operation between governments internal to the federal legislature

37. Two prototypes (continued) • Type 2: Chamber represents the people organised in federal units • Electoral system? • Scope of veto over legislation? • Other? • Probably not: budget government confidence • Co-operation between governments external to the federal legislature

38. Relations between Chambers • Potential for disagreement • (Majoritarian) democracy v federalism • Different party political majorities • Options for dealing with disagreement • Do nothing • Internal resolution mechanisms (eg mediation; joint sitting) • External resolution mechanisms (new elections, referendum)

39. Unit legislatures • Likely to reflect federal model, although • (somewhat) less likely to be bicameral • Potential to extend federal principle to governance within unit (eg by representation of local government) • Usual legislative functions • Particular federal functions?

40. Forms of Federal Executives and Legislatures in Selected Federations (Watts)

42. Variations in Selection, Composition and Powers of Second Chambers S. Watts

44. Constitution Making

45. Constitution Constituent Power Decentralization Centralization Legitimacy: Treaty, Agreement, Constitution…? How?: Procedure Step by Step International Community Inclusive Who? Exclusive Who decides?