Federalism: An Overview

1
Federalism An Overview

• Sujit Choudhry
• Faculty of Law, University of Toronto
• April 2007

2
Credits

• George Anderson, Forum of Federations
• Professor Yash Ghai, UNDP
• Dr. Jill Cottrell, UNDP
• Sheri Meyerhoffer, CBA

3
Federalisms increasing importance

• 40 of the worlds people live in federations
• 25 federations
• Federations from coming together of separate
  units (e.g. Canada, United States, Australia)
• Federations from coming apart of unitary states
  (e.g. Belgium, Ethiopia, Spain, United Kingdom)
• Federalism adopted in post-conflict environments
  (Bosnia, Iraq and Sudan) proposed in other
  post-conflict cases (e.g. Cyprus, Sri Lanka)

4
The Worlds Federations

• Argentina, Australia, Austria, Belgium,
  Bosnia/Herzegovina, Brazil, Canada, Comoros,
  Ethiopia, Germany, India, Iraq, Malaysia, Mexico,
  Micronesia, Nigeria, Pakistan, Russia, St
  Kitts/Nevis, South Africa, Spain, Sudan,
  Switzerland, United Arab Emirates, United States
  of America, Venezuela

5
Common Features of Federations I

• 2 orders of government, national government for
  entire country and territorially defined
  governments for regions
• Written constitution formally allocates
  legislative fiscal powers to both orders of
  government
• Each level of government possesses legislative
  executive powers
• Each level of government has independent
  relationship with electorate federal
  legislature executive not entirely chosen by
  regions and vice versa
• Constitutional provisions on federalism cannot be
  amended without substantial consent from
  constituent units as well as central government

6
Common Features of Federations II

• Institutions or representation of regional views
  (as opposed to simple representation by
  population) within the central government
• Umpire or procedure (involving courts or
  referendums or an upper house) to rule on
  constitutional disputes between governments
• Processes and institutions for facilitating or
  conducting relations between governments.

7
Federation vs. Confederation

• Confederation
• central government has no independent
  constitutional authority, derives powers from
  constituent units
• central government appointed by constituent units
• USA and Switzerland originally weak unstable
• Federation
• federal government derives power from
  constitution
• federal government direct relationship with
  electorate

8
Federation vs. Decentralization

• Decentralization in unitary states (e.g. U.K.)
• central government creates, and delegates power
  to, regional authorities
• regional governments can be directly elected
• regional government have substantial
  responsibilities
• can be abolished/powers modified through ordinary
  legislation
• Federation
• Regional authorities derive status powers from
  constitution, not from federal government
• Constitution cannot be amended by federal
  government with simple majority in legislature

9
Why Federalism?

• Democratic rationales
• Participation
• easier to participate in democratic politics in
  smaller communities
• Accountability
• greater control because regional government
  directly accountable to regional majority, which
  may be a minority at the national level
• officials more likely to live in localities where
  impact of policies felt
• Responsiveness
• regional majorities can tailor public policies to
  meet their needs and circumstances vs. uniform
  national policy
• Policy experimentation
• Policy experiments at regional level
• If successful, can be applied by other regions
• If unsuccessful, costs of error limited to one
  province
• Accommodating ethnic, linguistic or religious
  minorities
• Regional minorities may be local majorities
• Issues language, education, legal systems,
  religious rights
• NB internal minorities territorially dispersed
  minorities

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Who Does What and How I

• Two different models to distributing powers
• Classical Australia, Canada, United States
• exclusive areas of competence
• each establishes and administers own programs
• some concurrent jurisdiction ? paramountcy rules
• Inter-locking Germany, South Africa
• many shared competences
• Germany federal legislature enacts framework,
  regional legislature fleshes out detail, OR
• South Africa concurrent jurisdiction with
  provincial paramountcy except when the national
  interest is at stake
• regional governments administer federal
  legislated programs

11
Who Does What and How II

• Practical effect of distribution of power between
  strongly influenced by who controls government
  revenues
• Own source revenues key to autonomy
• Federal revenue raising capacity gt expenditure
  needs, so fiscal transfers, conditional or
  unconditional

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Who Does What and How III

• Distribution of legislative, fiscal powers
  normally set out in Constitution
• BUT powers of individual constituent unit
  governments can be substantially determined
  through bilateral negotiations with the federal
  government (Russia, Spain)
• BUT some federations permit delegation of
  legislative responsibility between orders of
  government (South Africa, India)

13
Who Does What and How IV

• Every federation allocates power differently, but
  some commonalities
• Always federal
• Currency
• Defence
• Treaty implementation
• Usually federal
• External trade (occasionally concurrent)
• Inter-state trade (occasionally concurrent)
• Major infrastructure (sometimes
  concurrent/regional)
• Customs/excise taxes

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Who Does What and How V

• Usually Regional
• Intra-state trade (sometimes concurrent)
• Primary Secondary education (sometimes
  concurrent)
• Health care (sometimes concurrent)
• Public health (sometimes concurrent)
• Municipal affairs
• Usually Concurrent or Joint
• Environment
• Courts
• Police
• Corporate and personal taxes
• No Clear Pattern
• Mineral resources
• Agriculture
• Criminal law

15
Political Institutions of Federal Government I

• Federalism self-rule and shared rule
• Institutions of shared rule as important to
  success of federalism as institutions of
  self-rule
• Federal government has control over policy files
  which affect citizens in regions
• Governments must interact because jurisdiction
  overlaps, and federal government actions may
  support/undermine regional governments

16
Political Institutions of Federal Government II

• Federations usually offset representation by
  population in legislatures through bicameralism
• different representative principles
• lower house closer to representation by
  population
• upper house formula based on constituent units
  varies
• elected/appointed in different ways
• lower house elected
• upper house direct election (United States)
  indirect election (India, South Africa) regional
  governments (Germany)
• quite similar/very distinct powers
• US, Argentina, Brazil, Switzerland, Canada
  absolute vote
• Germany absolute veto on provincial matters,
  suspensive veto OW
• India, Nigeria suspensive veto, override with
  joint sitting
• Austria, Malaysia, Spain suspensive veto

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Political Institutions of Federal Government III

• Method of selection, powers ? determines impact
  of upper house
• directly elected representatives usually vote
  more along party than regional lines (though they
  may represent regional parties)
• in parliamentary regimes, the lower house is
  usually the confidence chamber, which
  determines who forms the government

18
Political Institutions of Federal Government IV

• Political party system
• Will determine how federation will operate
• Enormous variation
• National parties
• Functionally connected to regional parties
• Functionally independent from regional parties
• Regional parties
• At national level
• At regional level

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The Legal Pillars of Federalism I

• federalism requires written constitution which
  allocates power to each level of government
• jurisdictional disputes will arise which turn on
  conflicting interpretations of constitution
• e.g. insurance regulation ? property and
  contract or trade and commerce?
• Need for process to settle jurisdictional
  disputes federalism needs an umpire

20
The Legal Pillars of Federalism II

• most federations judiciary is constitutional
  arbiter
• politically controversial position will be
  accused of playing politics
• conditions for judicial success
• courts, especially apex court viewed as
  legitimate impartial
• procedure for selecting judges competence
  consultation with/consent of constituent units
  legislative oversight
• federal nature of country reflected in court
  (e.g. Canada)
• Judicial independence security of tenure,
  financial security
• broader commitment to rule of law

21
The Legal Pillars of Federalism III

• Emergency Powers and Federalism
• some federations provide powers to central
  government to override normal constitutional
  arrangements in emergencies
• can override federal division of powers
• abused to undermine constitutional government
• e.g. India and Presidents rule
• in more established federations with such
  provisions, political evolution of country has
  constrained their use or rendered them obsolete

22
The Legal Pillars of Federalism IV

• Amendment
• constitutions entrenched typically require
  special procedures and majorities for amendment
• amendments affecting constituent units usually
  require some measure of consent by their
  legislatures and executives or populations
• BUT degree of consent varies
• constitutions can be difficult to amend
  alternatives to formal constitutional change
  frequently sought to adapt federations to
  changing circumstances

23
Intergovernmental Relations I

• considerable interdependence b/w two orders of
  government and between regions
• Especially in inter-locking federations
• politicians, civil servants, public all try to
  influence actions in other jurisdictions
  intergovernmental relations fundamental feature
  of politics in federation
• Networks of officials
• courts not only body to settle intergovernmental
  disputes
• Many disputes within constitutionally accepted
  boundaries
• e.g. federal funding of provincial programs
• most issues in dispute between governments do not
  turn on differences regarding constitution

24
Intergovernmental Relations II

• major determinant of intergovernmental relations
  power of executive relative to legislature
• if governments dominated by the executive, then
  executive federalism becomes key
  intergovernmental process
• e.g. regular meetings of heads of governments,
  civil servants
• if legislatures play more independent role, then
  more diffuse pattern of intergovernmental
  relations

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Intergovernmental Relations III

• Other determinants
• effectiveness of federal role for upper house
  in central government
• number of units
• Differing intergovernmental styles
• central government quite dominant can be
  coercive in relations with regions, OR
• more equality and greater emphasis on
  consultation and negotiated agreements

26
Federalism Conclusions

• federalism has proven itself in a number of
  long-established and prosperous countries
• BUT
• federalism cannot guarantee democracy or good
  governance any more than unitary government can
• federalism not inherently superior form of
  democracy
• value depends on circumstances
• Federalism has important place on menu of
  constitutional options, but not only option

27
The Relevance of Federalism

• Federalism works best where
• broad respect for rule of law
• culture of tolerance accommodation between
  population groups
• embracing diversity as what defines country
  better than tolerance for stability of federation
• significant elements of shared identity