Federalism: its principles, flexibility and limitations

BY CÉLINE AUCLAIR
Federalism: its principles,
flexibility and limitations
People often contrast “federal systems” with “unitary
political systems” – systems with only one source of central
authority. Some see little difference between “federalism and
decentralization”, or “federalism and devolution”, or
“federalism and subsidiarity”. There are similarities among
these concepts, but they should not be confused with one
another.
Under the umbrella term “federal political system” there are
several possible configurations, the most familiar of which are
federations and confederations. When we speak of a
federation, we are referring to a political system in which there
is power-sharing. The government consists of at least two
orders: a central or federal government
and the governments of constituent units.
Each order of government receives an
allocation of financial resources tailored to
its specific requirements. Sometimes the
municipal level may also constitute a
distinct order of government. In all federal
countries both the federal or central
government and a second order of
government are constitutionally
recognized and exercise their own powers.
For instance, in addition to a federal
government, Canada has provinces;
Switzerland has cantons; Germany has
Länder; the United States has different states; Yugoslavia Serbia
and Montenegro, republics; and Spain, autonomous regions.
Whatever the name, these are all entities that, like the federal
government, have their own exclusive jurisdictions. These
jurisdictions are defined by a constitution, not by another level
of government. As a result, neither the federal government nor
the governments of the various constituent regions are
constitutionally subordinate to one another. The people
directly elect each order of government.
Professor Ronald Watts of Queen’s University, Canada, has
drawn up a list of structural characteristics distinctive to
federations:
1. Two orders of government, each in direct contact with its
citizens;
2. An official, constitutional sharing of legislative and
executive powers, and a sharing of revenue sources
between the two orders of government, to ensure that
each has certain sectors of true autonomy;
3
3. Designated representation of distinct regional opinions
within federal decision-making institutions, usually
guaranteed by the specific structure of the federal Second
Chamber;
4. A supreme written constitution that is not unilaterally
modifiable but requires the consent of a large proportion
of federation members;
5. An arbitration mechanism (in the form of courts or a
referendum) to resolve intergovernmental disputes;
6. Procedures and institutions designed to facilitate
intergovernmental collaboration in cases of shared
domains or inevitable overlapping of responsibilities.
(Watts, 2002, p.8)
Distribution of powers
There is no a priori formula to determine which
powers should be devolved to the federal
authority and which to the regional authorities.
In Australia, a constitutional committee study
(1985) concluded that certain jurisdictions such
as defense, international policy, fiscal policy
and some taxation areas, require strong federal
management. Other jurisdictions can be and
are conferred differently depending more on
the distinct features of each country: the
structure of its population, the strength of the
regions, etc.
Despite this variation, there appear to be three general trends
in the distribution of powers:
• to grant a list of exclusive powers to the federal
government, leaving the residual powers to the
constituent states or provinces (Pakistan).
• to identify a list of powers pertaining to the federal and
constituent states or provinces respectively, with an added
clause according residual powers accorded to the federal
government (Canada, Belgium).
• to draw up two lists: federal jurisdictions and concurrent
jurisdictions. All residual powers are left to the states or
provinces (the United States, Switzerland, Australia,
Germany, Austria).
Residual powers confer legal authority on one of the two
orders of government for all matters that do not appear among
the items listed in the constitution. The primary goal of
residual powers is to identify an authority in charge of new
affairs for which a jurisdiction has not been determined. When
a federation has arisen out of an association of formerly
independent communities, a list of residual powers also
provides a mechanism to support regional government
autonomy. By granting residual powers to constituent units,
the new areas of jurisdiction are not seen as a means by which
the government can centralize its power and thus threaten
autonomy.
F e d e r a t i o n s Vol. 5, No. A-1 / 2005 F o r u m o f F e d e r a t i o n s
Céline Auclair is a vice president of the Forum of Federations and
was one of its founders. She has a PhD in international relations
from the University of Geneva, Switzerland. She was Deputy
Ombudsperson for Bosnia and Herzegovina in 1997–1998 and
advisor to the office of the High Representative in Bosnia-
Herzegovina in 1996–1997.
(Sub-national)
jurisdictions are
defined by a
constitution, not by
another level of
government.
In practice, when areas of jurisdiction are not defined by the
constitution, they are assigned to the most appropriate
government. This is determined by legal judgment, normally
handed down by a Supreme or a Constitutional Court.
Although each order of government usually has its own areas
of jurisdiction, nothing prevents two orders of government
from mutually exercising a given power. This is known as
concurrent or shared jurisdictions. In fact, almost all federal
countries make provisions for concurrent jurisdictions,
particularly in legislative affairs. This is not surprising, given
that cooperation and interdependence between orders of
government are essential to any form of federal governance. In
cases of conflicting legislation, the constitution determines
which order of government will prevail.
Concurrent jurisdictions offer several advantages in federal
structures. They introduce a degree of flexibility and
innovation in the distribution of powers. For instance, the
federal government may delay exercising its powers in an area
that might eventually call for a strong federal coordination.
Concurrent jurisdiction allows state or provincial governments
to develop their own policies in the interim. The federal
government might also decide to establish national standards
in certain areas, leaving the states or provinces to develop
services in the manner that best responds to the unique
identity of each region. Concurrent jurisdictions also allow a
federal government to temporarily occupy a state or provincial
jurisdiction when that state or province is unable to deliver a
particular service. (Watts 2002)
Legislating and administering
In parliamentary systems, both legislative and executive
powers are usually conferred on the same order of
government. This form of government offers the advantage,
from an executive viewpoint, of being both responsible and
accountable for the implementation of its own legislation. In
presidential systems, legislative and executive powers are
traditionally given to different orders of government.
In most federal systems, constituent units are considered to be
equal and have the same legislative powers. However, the
constitutions of certain federations provide for an asymmetric
division of powers in order to reflect the differences among
their constituent units. These differences can be territorial,
demographic, linguistic, cultural or religious.
Regardless of any asymmetric approach to federalism, the
constitution is the supreme legal instrument in any federation.
It cannot be amended unilaterally. An amendment would
require the assent of a significant number of the federation’s
component regions and, in certain cases, a majority of the
population.
As previously mentioned, the constitutions of federal countries
determine the division of legislative and executive powers, as
well as the distribution of financial resources, to ensure that
the various levels of government have real autonomy.
Normally, the constitution also provides for a supreme
arbitration body empowered to resolve disputes and rule on
litigious cases involving governments’ constitutional powers.
Since most federations have concurrent jurisdictions, they also
usually have institutions and mechanisms in place to
coordinate relations among the different orders of government.
Federalism and accommodating national diversity
The vast majority of conflicts raging in the world today are
domestic and involve national groups demanding better
representation or greater autonomy in their respective states.
Several of the world’s 25 federations are multinational
countries within which national groups are demanding greater
recognition and autonomy. Although federalism as a system of
government has sometimes been successful in easing tensions
and maintaining state unity in a country, it has not always
been able to meet the demands of national groups. To offer a
true political space, federations need to be flexible.
As mentioned above, some federations have opted for the
asymmetric form of federalism, thereby granting certain
national groups true autonomy. The asymmetry varies from
country to country with the division of powers being based on
the realities of each federation.
Other federations have also adopted approaches based on the
challenges they face. One such approach consists of redrawing
state or provincial borders so as to better respect the ethnic
make-up of each one. This was the case in Nigeria, which
gradually grew from 3 to 36 states. The Swiss adopted a
similar approach with the creation of the canton of Jura. The
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When one level legislates and another administers
Certain federations, however, have enshrined in their
constitutions provisions separating executive and
administrative responsibilities in certain fields of
jurisdiction. This does not make these countries any less
federal. In Germany, for instance, the constitution makes
provisions for the federal government to assume most
legislative powers, while the Länder are in charge of
implementing and administering legislation. Thus, from a
legislative perspective, Germany can be considered very
centralized, while it is decentralized in administrative
terms. It should, however, be noted that the Länder are
also involved in developing legislation through the
Bundesrat, the Chamber of the Regions.
Two types of asymmetric federalism
There are two main forms of asymmetric federalism. One
approach consists of increasing the federal government’s
authority in regions where the state’s or province’s
capacity to exercise legislative authority is less advanced
or is temporarily undermined. In such cases, the federal
government may take over until the state or province is in
a position to exercise its authority. Such was the case in
India where, for the first six years of the Union, the
federal government assisted certain less developed states
until they were able to exercise their own legislative
power.
Amore common approach to asymmetric federalism
involves giving one or several states or provinces more
autonomy. The Malaysian system best illustrates this
approach. Although it has a highly centralized system of
government, Malaysia has given the states of Sabah and
Sarawak powers that normally fall under federal
jurisdiction. The aim of this approach is to protect the
distinctive characteristics of the two states and their
interests.
Republic of India has also created 3 new states carved out of
the existing territory.
Sometimes, it isn’t really a question of meeting the demands of
one or more national groups, but rather it is a question of
ensuring that the rights of all national minorities are protected.
In Bosnia-Herzegovina, for example, the Bosnian Serbs have
the Republic of Srpska, and the Bosniaks and Croats have
cantons in which either Bosnians and Croats constitute the
majority, although some cantons remain mixed. However,
authorities will still not declare territories or municipalities to
be “ethnically pure”. The federal government has therefore
been given the responsibility of creating an Office of the
Ombudsperson that is answerable to the federal parliament to
ensure that the rights of national minorities are respected. The
Office, which works closely with the Human Rights Chamber,
is responsible for ensuring that the rights of Bosnian minorities
are respected, regardless of where they live.
Another approach is to enshrine a corpus of fundamental civil
rights enforceable by the courts in the Constitution. Such was
the case when Canada introduced a Charter of Rights and
Freedoms in 1992 at the same time that Canada transferred the
power to approve amendments to its constitution from the UK
Parliament to Canada.
How to manage conflicts
Today it seems that the idea of assimilating national groups
has finally been abandoned. History has shown that a sense of
membership in a national group is often stronger than
affiliation to the country. As a result, the nation state that so
many have striven to build over the past few centuries is
giving way to the multinational state.
Governments of such multinational states are increasingly
recognizing the merits of demands related to linguistic,
religious or cultural protection. They are also realizing that, far
from threatening the stability of the country, the conferring of
distinct powers on some national groups may actually lead to
greater social peace. Conflicts and negotiations are not about to
disappear entirely; however, rather than taking place under
tense conditions, they will be tackled by constitutionally
recognized partners.
Several observers point out that federal structures have not
entirely succeeded in crushing separatist movements and they
probably never will. Representatives of separatist movements
jockey for position on the political stage during elections. Some
entities, such as Puerto Rico, Quebec and St. Kitts & Nevis,
have held elections or referenda on the issue of separation.
However, we should not forget that countries such as Canada,
Belgium and Spain would probably not exist in their current
form if they had not devised ways of sharing powers with
their national groups.
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Power-sharing or increased territorial autonomy give national
groups more confidence. This confidence would be even
greater if they were to become constitutional partners, thereby
gaining legal guarantees and further autonomy on issues
related to preserving their distinctiveness.
Far from leading to secession, federalism, if applied in a truly
democratic fashion, can offer the political space needed to
guarantee true regional autonomy.
An ongoing process
Federalism is much more than a system of government. It is
also a process of ongoing negotiations, an art of resolving
conflicts, an approach based on compromise and cooperation.
Nothing is ever established once and for all, since solutions to
problems must be negotiated among constitutional partners
and not imposed by a single central authority. That flexibility
is one of the greatest advantages of federalism.
What about the ideal model? To satisfy all parties, the federal
structure must first and foremost be flexible and reflect the
particularities of its constituent groups or regions. There are no
patterns to follow. None of the 25 countries that have opted for
a federal constitution has won the trophy for “best federation”.
From them, however, we can learn tremendously. Learn from
their successes – learn from their mistakes.
Further Reading
De Villiers, Bertus, ed., Evaluating Federal Systems, Juta
and Co. Ltd. – South Africa, with Martnus Nijhoff
Publishers – The Netherlands, 1994.
Dion, Stéphane, Intergovernmental Relations Within
Federations : Contextual Differences and Universal
Principles, International Conference on Federalism, 1999.
Finer, S. E. and V. Bogdanor and B. Rudden, Comparing
Constitutions, Clarendon Press – Oxford, 1995.
Herberger, Dwight, Distribution of Powers and Functions in
Federal Systems, Institute of Intergovernmental Relations:
Queen’s University – Kingston, 1991.
Kymlicka, Will and Jean-Robert Raviot, Living Together:
International Aspects of Federal Systems, Canadian Foreign
Policy – Ottawa, 1997.
Sturgess, Gary L., Rapporteur’s Report on the
Intergovernmental Relations Theme, International
Conference on Federalism, 1999.
Watts, Ronald L., Comparing Federal Systems, 2nd edition,
Institute of Intergovernmental Relations: Queen’s
University – Kingston, 1999.
Watts, Ronald L., Comparing Federal Systems in the 1990’s,
Institute of Intergovernmental Relations: Queen’s
University – Kingston, 1996.
Watts, Ronald L., The International Evolution of Federal
Systems in the Twentieth Century, Institute of
Intergovernmental Relations: Queen’s University –
Kingston, 2001.
“Federalism should not be seen only as a static pattern or
design, characterized by a particular and precisely fixed
division of powers between government levels. Federalism
is also and perhaps primarily the process … of adopting
joint policies and making joint decisions on joint problems.”
– Carl J. Friedrich, Trends of Federalism in
Theory and Practice. New York: Praeger, 1968.