Published by the Forum of Federations *
www.forumfed.org * Publié par le Forum des fédérations
A Global Dialogue on Federalism
Theme Development Conference
for
Theme 2 : Distribution of Responsibilities
16 November 2003 - Wrap-up
Session
by
Prof. Ronald Watts, Canada
As John
has said, I have been asked to review the ground covered by the
conference. It is difficult to do
justice to all the discussion that occurred. in the 30-40 minutes that have
been allotted to me for this purpose, because so much ground was covered. It is also difficult to do justice when
there are so many parallel sessions and you shuttle back and forth between
them. One hopes that one got the gist
of the important points that were made.
But one may have missed some.
But the first thing that I would
like to emphasize by way of introduction is what, I think, has been the
achievement of this conference. I
think, it has been a valuable and useful conference. I particularly like to congratulate Prof. Akhtar Majeed as the
theme coordinator. I would also like to
congratulate the country coordinators and presenters for what has been the most
interesting conference.
This theme
that the conference has focused on is an important part of a series of what
will be something like a dozen themes on aspects of federalism, and as the
second in the series, it is particularly important. It is important not only because it is the second in the series
but also because, I think, the topic of the distribution of powers and responsibilities
relates to one of the defining features of federal political systems, that is,
the constitutional allocation of responsibilities among different organs of
government. One of the things that
distinguishes federations from unitary systems, for instance, is the fact that
the allocation is constitutionally determined and not simply at the whims of
one level of the government or the other.
At the
outset, I would like to emphasize two aspects of the joint IACFS - Forum of
Federations’ global dialogue programme.
The first is that it is intended to encourage exchanges of views between
practitioners and academics. Too often,
they have operated in isolated compartments.
But the purpose of the country round-tables, and of this international
theme conference, has been to have a dialogue at which individuals drawn from
both elements, some individuals who themselves have been in both elements,
could have a chance to talk to each other and to try to make sure that theory
and practice are brought closely together, that theory can take account of
practice and practice can take account of theory. It is important for a second reason, that is, it is a part of the
process for the production of a series of handbooks which are intended to
represent the state of the art on the study of federal systems. One of the purposes of these conferences is
to provide comparative contacts for the writers of the individual country
chapters so that having heard what others have had to say, they have some idea
of how their own chapter, what they write about their own country in the
handbook on this theme relates to
similar or different dimensions
from those in other federations.
I think, this conference has contributed to both of those objectives
though we may in the end have to, as we progress along, think about whether
other forums of conference would be more useful in terms of helping the
drafters of the handbooks and so on.
But I think it has achieved that purpose of both providing for an
exchange of views and for helping those who are going to be writing or who have
written or will be revising their individual chapters on their particular
federations.
But we
begin with some general observations on the conference. I think, the significant feature, of course,
has been the identifying of similarities and differences apparent amongst the
federal countries. Amongst the major
similarities, what seems to me is that all of them obviously are typified by
constitutional distribution of responsibilities and competencies. The second point that emerged certainly in
the discussion is not surprising, but that is the extent of inter-dependence of
responsibilities amongst the different organs of government. The notion that governments can operate in
water tight compartments has long gone out of the window and certainly the
discussion in every session brought to the fore the degree of
inter-governmental collaboration that has been necessary in most federations.
The third feature that seemed to me
to mark the similarities among the federations is the degree of complexity that
is involved in most federations in trying to reconcile the political realities
of their societies. It is illustrated
by the complexities within India, for example, which should have been well
outlined in a number of sessions as well as the introductory one, but also in
others such as I can recall the comments when we heard, for the first time, the
arrangements in Belgium and the double symmetry in Belgium ----obviously
another very complex situation. And all
that reminded me of a favourite saying of one of my predecessors, if I could
call up that J.A. Kori Alkori at Queens, who used to be a noted writer on
federalism in Canada and comparatively who was in the generation preceding
me. He used to frequently tell his
students often, not just once, that it needs a tidy mind with a crippling
disability in understanding federal systems. Given the complexity that we have
observed here, I think, that is certainly a truism. But also, I think, it has been apparent from what has been said
that there has been a wide range of variations amongst the dozen
federations. That is how we have been
looking at it. Sometimes this has been
masked in the parallel sessions, different sessions, each tending to compare
relatively similar federations. I
thought, for instance, in the first sub-theme, the first pairing of the United
States and Australia pointed to rather two similar federations in terms of the
character of the distribution of powers. And the other one of Canada and India
pointed to two or rather similar. But having them in two parallel sessions
separately meant that one did not realise what a contrast there was between one
pair and the other pair. But certainly
with me shuttling back and forth, it was very apparent to me what a contrast
there was between the two pairs.
Clearly in the five sets of issues that we have examined, there has been
a wide range of variations among federations.
There are no pure models of federalism but many practical variations,
variations in the form and scope of the constitution or distribution of
authority in the emphasis on concurrent or on exclusive areas of jurisdiction
and the degree of symmetry or asymmetry amongst the constituent units, in the
relative roles and the interaction of different levels of Government in policy
areas, in the financial arrangements, in the degree of cooperation or
competitive federalism, in the degree of relative centralization and
decentralization. One of the things
that clearly this conference brought to the fore - we did not realise it before, I think, most of us probably did –
was that there is a wide range of variations within the common framework of
federal systems.
Well, let me turn to a more specific
review of the ground covered in the conference. We began, of course, with the introductory plenary session in
which the inaugural address by Dr. Rangarajan and the keynote address by Mr.
Justice Venkatachelliah drew attention to important financial and legal aspects
of the distribution of responsibilities within federations. The former drew attention particularly to
the current context of globalization, emphasis on market economics and the
benefits of decentralization that have an impact on governmental structures in
the contemporary world, that is, on the governmental structures and federations
in the contemporary world, particularly the tension between collaborative and
competitive federalism. The latter
distinguished between decentralization and non-centralization and drew
attention to federalism characterized not in terms of rigid structures but
evolving processes and the flexibility of the concept of federalism in the
varied ways in which it has enabled the reconciliation of diversity within a
federal framework. I was delighted that
he picked one of my favourite quotations when I was first engaged in the
comparative study of federal systems.
My first book, in fact, was on a comparative study of federalism in
India, Pakistan, Malaysia and Nigeria.
While I was going through the Constituent Assembly debates in India, I
came across the quotation which I had never heard anyone else repeat until I
heard the Justice repeat at the introduction.
It is one of my favourites because, I think, it typifies why Canada
originally adopted a federal system. We
had also deadlocks within a unitary system, within the province of Canada, and
the way we decided to resolve that, was to take the contentious issues out of
the central politics, devolve them to the constituent units - to the provinces
- so that the federal Government could operate more effectively on those issues
on which they agreed. The quotation was
simply the comment of one Member of the Constituent Assembly of India who
declared that the danger of over centralization was deadlier to extremities and
apoplexy at the centre. So, we had
experienced apoplexy in Canada that led us to try to get away from it by
adopting a federal system.
The five sessions that followed
enabled us to review some significant aspects of the design and operation of
the distribution of responsibilities in federations. Here I was struck by both what was said and, in some instances,
by what might have been said and was not.
So, I would refer to both as I go through. As I review the sessions briefly, I make some comments on both
those aspects. In the first session,
that is, on constitutional provisions, their logic and their working, as I have
already mentioned, the two pairs of cases contrasted with each other although
each session only saw the particular pair very similar to each other. In the United States and Australia, the form
of the distribution of powers was basically similar federal, very limited list
of federal exclusive powers, most of the federal powers largely concurrent ones
and the unlisted residual powers being assigned to the States. That was the form of the distribution of
powers. In terms of scope, quite
clearly those powers assigned to the Central Government were intended to
emphasize the decentralized nature of the federation and the particularly
strong role and responsibilities of the States, and what has signified the
evolution of both of them has been a strong trend of centralization. In Canada and India on the other hand, again
there are similarities which contrast very sharply with the United States and
Australia. Each of them has a three
list system, that is, they include not only a federal exclusive list and a
concurrent list but also a list of exclusive state or provincial powers
although one difference is that the Canadian concurrent list is very short –
only two items initially but expanded
slightly. It has doubled. It increases to four whereas there is a
significant size of the Indian list.
Then, I am talking about the form of distribution of powers. In terms of scope, both of them began with a
relatively high degree of centralization in the allocation of powers. Both of them indeed working in practice have
gone through a process of decentralization.
What are the reasons for these
contrasts? I think, one important
reason which came out in one of the discussions was that whereas you have a
state list explicitly stated even though the constitution may have originally
intended to be centralized, the statement of an exclusive State List
paradoxically provides the courts with something to pin the defiance of state
provincial powers. When there is simply
an unspecified residuary power, court interpretation tends to expand the
implied powers built into the list of federal items at the expense of the State
powers.
Other factors, of course, are also
important, for instance, the multilingual and multiethnic character of both
Canada and India by contrast with the degree of relative homogeneity in the
United States and Australia. So, among
the issues that were raised in these sessions or parts of the sessions that I
was able to sit in were five points. In
each case, the constitutional distribution emerged from the particular
circumstances of the origin of the federation and evolved over time in response
to some of the particular circumstances and the circumstances varied. The second one was that in identifying some
of the factors that affected the evolution, whether in the direction of
decentralization in Canada and India or to greater centralization in the United
States and Australia, were constitutional factors, such as, what I have already
referred to in terms of the nature of the list and including a list of
exclusive State or provincial powers.
The financial arrangements are also an important factor. But the questions of financial arrangements
are a part of the distribution of powers.
So, those two aspects were the form and content of the distribution of
powers that affected the evolution. On
the other hand, there are important extra-constitutional factors to the
relative homogeneity as compared to the very sharp diversity in cultural terms,
in linguistic terms, in both India and Canada. Prof. Fleiner identified the
impact of ideological differences, the general tendency of conservatives to
favour decentralization and local decision-making and for liberals to identify
central and common decision-making.
I would add another one which, of
course, is the party structure. The
fragmentation of the party structure in India, for example, has been a major
factor here in terms of the decentralization over the five decades. There was a discussion in one of the
sessions, that is, on the United States and Australia, about whether lists of
jurisdiction matter. I think, if those
who participated in that discussion had attended the other session, they would
have clearly concluded that they do matter.
It was quite clear from the discussion in the session on Canada and
India that lists do make a difference.
The relative form of the executive-legislative relationship is a factor
that he drew attention to in terms of its impact on how the distribution of
powers has evolved. It is not something
that was discussed at a great length but there is quite a variation between
presidential congressional systems and parliamentary systems. That theme will be discussed much more
fully, of course, in the next theme, that is, the third theme, which is
directly on that subject. But it is
important not to forget that that can have an influence as well on the way the
distribution of powers is handled.
Another issue that was raised was
the issue whether there is an irreducible minimum of federal powers that a
federation must have in order to be effective.
There was a discussion on it. But I do not think the irreducible minimum
was actually identified. I would simply
add that from my experience of studies, I can cite at least one federation that
clearly collapsed because it lacked that irreducible minimum. I am thinking of the West Indies
Federation. The West Indies Federation
had such weak powers for the Central Government that it was like an automobile
with no engine. And all it proved was a
frustration to everyone with providing no benefits to anyone and it did not
last very long as a result on issues that might have been raised. I was partly
surprised that they were not five but distribution of legislative powers
focused on four cases. The four cases
were old cases where the legislative and the executive distribution of powers
coincided. Well, that is where the
executive authority corresponded to the allocation of the legislative authority. But other federations exist where the major
element of the distribution of authority is between the allocation of
legislative authority to one level of Government or most of it, and the
executive authority mostly to another level.
If Germany had been one of the examples, that difference would have been
brought to the fore as a major contrasting difference with four federations
that we were looking at. This would
also be true of federations like Austria, although not quite to the same degree
Switzerland, a fairly common pattern amongst European federations then of a
division between the allocation of legislative and executive authority in a
particular area. The second one was the
difference between those federations based on common law and those based on
civil law traditions.
Another topic that was not raised,
which is implicit but I was surprised, was the influence of earlier
models. The Australian model very
clearly followed the American model. It
consciously rejected the Canadian model and adopted the American model. Similarly the Indian model was heavily
influenced by the Canadian one. I found
in my studies, if you could trace, how the Government of India Act of 1935 was
heavily influenced by the British North America Act and then the Act of 1935
had served as the interim Constitution of an independent India and had an
influence upon the Constituent Assembly.
So, one of the points to look at, it seems to me, and looking at the
distribution of powers why a particular form is adopted, is to see what models
a particular federation looks at and why they select those particular models.
Another one is the difference in the
process of creation of a federation between those established on the basis of
aggregation - bringing together - of units and those based on devolution of a
pre-existing unitary system. It is not
surprising that in this respect, Canada, India and Belgium should put a major
component of the residuary powers, leave that with the Central Government and
that in the case of Canada and India, they should have started with a
relatively centralized distribution of powers as they were created in a process
of devolution by contrast with the aggregatory process that existed or was
carried out in the United States and Australia in creating the federation.
Finally, it seems to me that there
are variations in the status of local government, which did not come up in this
session. It did tend to come up in some
of the latter sessions. There is a
variation amongst federations in terms of whether the third order of
government, local or municipal government, is treated as a constitutionally
recognized order of government or is simply derived from and created by the
second order by provinces, States and so on.
That has some bearing in defence on the relative roles of local
government.
Well, I have gone at some length in
that because that first session, it seems to me, laid the groundwork. I will try to be more brief and go more
quickly over the other sessions. The
second session dealt with concurrence and symmetry. Here unlike the other sessions, the two sessions dealt with
different subjects, not just different cases but one of concurrence again
focused on examples where concurrence was prevalent. Unfortunately, it seemed to me that we did not get into a
discussion over what happens in those where there is a large measure of
concurrence and those where there is a small measure of concurrence, we mainly
dealt with issues such as what was described as the opportunity that a larger
concurrence provides for federal polity.
I think, no one particularly liked the implication that larger
concurrence also can contribute therefore in the long run to
centralization. But it would have been
interesting, I think, to pair up those that had a large measure of concurrence
with some that have a very small measure of concurrence. The obvious examples are, of course, Belgium
and Canada where virtually all but a very small area is in the domain of either
exclusively federal or exclusively constituent unit powers.
On asymmetry again, the
concentration was on two examples which were quite clearly strong cases of
asymmetry. But no discussion really
emerged between how does the asymmetry make a federation operate differently from
those that are symmetrical. At least, I
did not hear any discussion on that contrast.
The discussion was mainly on what forms symmetry might take. Here was the examination of the Spanish
case. I think, some interesting issues
were about the difference between whether asymmetry is transitional, temporary
and a permanent arrangement. It seems
to me that there has been some retreat in Spain from the initial symmetry. But, on the other hand, it is also proved difficult
to eliminate asymmetry even though there has been an effort to try to equalize
the powers of the constituent units.
Belgium provides, of course, a unique and special example because there
the symmetry is not just in the defence of powers of different units but
actually involves two quite different kinds of units that cut across each
other. Hence, the terminology which I
rather liked referred to the case of doubling symmetry in the Belgian case.
Here a number of issues how this
operated were referred to. I thought
there were again some points that could have been raised. For instance, there was not, I thought,
enough discussion on different forms of a symmetry or how a symmetry might be
achieved by different mechanisms.
Perhaps because I am a Canadian, I take up the example, for instance, of
the Canadian device in which there is an area of concurrence with provincial
paramountcy. That is an area of concurrence in which provincial law prevails
over federal law. That enables the
federal parliament to pass certain laws for the provinces but the provinces, in
effect, upheld that by exercising their paramountcy. So, arrangements for opting in and opting out provide a scheme
which on the surface is symmetrical because it is available to all the
provinces and yet legally gives them the power to have that power applied
differently.
Let me go on to the
third session which dealt with the allocation of major policy areas and its
compatibility with the culture and the economy. Here a broader range of cases was presented initially, that is,
three in each session. The sessions
were a little longer enabling more discussion - one session on the United
States, Belgium and Switzerland and one on Belgium, Nigeria and Mexico. I think, the discussions covered a wide
range of issues. They pointed to the
degree of inter-dependence that has developed in most federations in handling
interrelated policy issues and, therefore, devices for handling these had to be
developed. There is a considerable
variety again in the degree of inter-governmentalization. In the United States,
they presented it. It is almost
total. On the other hand, at the other
extreme, although there are inter-governmental agreements in Belgium, on almost
every issue, the emphasis is upon the exclusive operation of the constituent
units.
The second issue is the degree in
which in the handling of these policy areas, one level of a Government in a
particular area would play a predominant role.
Clearly in the United States, the federal Government plays a strong
role. But in some other policy areas
and in some other federations, other levels of Government in particular areas
play a strong role.
Then, you see the inter-relation of
social and economic policies, especially where social policies are a
responsibility of the constituent units, the States or provinces or whatever it
is. These are expensive activities and
responsibilities but the financial powers are particularly concentrated in the
Central Government. This makes it clear
that social policy and financing and economic policy have a close relationship.
Another issue that was raised was
the relationship of economic and cultural policy especially in those
federations which are multi-ethnic or multi-national in character. I think in recent decades in Canada, it has
become clear how with the original logic of the solution in 1867, the federal
Government handled economic issues and the provinces handled issues of cultural
significance like education, social policy and so on. In the latter half of the 20th century, particularly
it became clear that to have cultural autonomy, you really also have to have
control over your own economy. Hence,
the economic powers are significant and
relative to the development of a distinctive culture. Other issues that were raised - I will just touch on them - were
questions on how you handle policies,
whether there are minorities within minorities, a situation that exists
virtually in all federations, certainly multi-ethnic ones, the relationship
between internal domestic policy, the handling of that and foreign policy,
particularly as exemplified by the role of the Swiss cantons, the Belgian
regions and one might also say certain aspects of Canada. That is a topic but
by the way, that will be the fourth major theme so that it is relevant to this
particular theme. But the fourth theme
in the global dialogue series is going
to concentrate fully on the issue of handling of foreign relations within
federations.
It was also the issue how you handle
the new policy areas, not originally identified in the constitution.
One of the issues that was not
raised – it was raised in a much latter session – was the issue of how you
handle policy regarding security and police especially in the ‘post-9/11’
era. This was touched on by Mr. Richard
Simian in the fifth session when he was referring to crisis federalism and how
issues of crisis are handled. But it is
a significant issue. I think, that needs to be looked at. I can recall some decades ago when Americans pointed out to me that one real test
of the federal system to know whether the system is really federal is that
either police is responsibility of the State Government or the federal
government. If the police is the
responsibility of the federal government, potentially the federal government
can eventually impose its will on the States. Therefore, that is a threat to
the genuine federal character of the country.
Well, if it is so, then in an era of crisis federalism, the relative
role of governments in handling security issues becomes a very important issue.
On the
fiscal balance between responsibilities and revenues clearly, this is relevant
to the theme that we have been discussing at this conference. But I would point out that this would
probably be the fifth theme in the overall series of the global dialogue so
that it will be handled much more thoroughly and fully in its own separate
volume later in the series of the global dialogue. But it is relevant to consideration here for two reasons. First of all, the assignment of taxing
powers affects the ability of one level of Government or the other to exercise
an influence on economic policy. So, if
we try to decide whether it is the federal government or the states or both, that have an influence in shaping of an
economic policy. Where the taxing
powers are assigned, it is an important part of that.
The second, of course, is the
financial resources affect and limit the capacity of a government to perform
its assigned legislative and executive responsibilities. You can assign all the legislative and
executive powers you want. But if government
that handles powers does not have the resources to exercise them, that
assignment becomes virtually meaningless.
So, there are issues here on the capacity of federal or state
governments to perform their assigned legislative and executive functions in
terms of whether they have sufficient resources in a vertical sense, in terms
of the distribution between the federal and state governments or in the
horizontal sense, in terms of the existence of disparities where some states
are wealthier or poor and others and what resources are given to assist the
poor units to exercise the responsibilities assigned to them. Here, of course, the whole system of fiscal
relations - transfers and adjustments -
comes into play.
Finally, let me get to the fifth
topic – the evolution management, challenges and future trends in the
distribution of powers. I attended the
first part of the session on Germany and Canada and the second part on
Switzerland and India. I got the impression that they were talking about two
totally different topics, that is, I could not see any connection between what
I heard in the two sessions. So, I will
try to make an amalgam out of them. I
spend more time on Germany and Canada.
So, my comments will first relate to that. It seemed to me that there were some common issues for
federations that came out of that discussion.
One was the need in all federations to balance rigidity and
flexibility. Rigidity is necessary in
the distribution of powers in order to provide minorities with a sense of
security. If a constitution is totally
flexible, then minorities have no sense that their position is secure. On the
other hand, obviously, adaptability is an important element in a federal
structure as well. So, the importance
that arises is the role of different procedures to enable flexibility without
violating the security that is provided for the minorities or the states
representing minorities. Among the
processes that were identified were constitutional amendment processes,
judicial review, fiscal arrangements and inter-governmental agreements or for
important elements. In some
federations, enormous transformations have occurred because of virtually no
constitutional amendments by using the devices of judicial review, fiscal
arrangements, changing fiscal arrangements and through inter-governmental
negotiation and agreement.
The second common theme was the need
to manage interdependence given the overlapping and interconnectedness of
different policy fields and areas of jurisdiction, the need to develop
instruments and machinery for managing interdependence. The sixth or seventh theme in the global
dialogue series will be focusing on inter-governmental relations. But clearly, it is closely related to this
particular theme.
The third was the role of major
international cities. Especially under
the pressures of globalization, what should be the roles of the federal
government or the state governments in terms of operation of what have become
in many federations very major international cities, often much more active and
much more influential on the economy of the country than many of the
states. But there are significant
variations too. The first one, which
was much discussed in the session on Germany and Canada, was finding the
balance between cooperative federalism and competitive federalism. We heard
about some concerns in Germany about the degree of entanglement between levels
of Government in a cooperative federalism and the need for disentanglement in
the recent establishment of a commission to examine those issues. At the other extreme was the Canadian case
in which it is typified heavily by what might be called arms link federalism
and competitive federalism where the pressure has been to improve the
collaboration. So, it looks as if Canada
and Germany are coming from opposite ends in trying to find a balance of
sufficiently effective collaboration without having stultifying interlocking
arrangements, which is called the joint decision trap.
The second
area of variation is the impact of centralizing and decentralizing pressures
and the resulting degree of non-centralization. The examples of the United States and Australia with the
centralizing trend, the decentralizing trend of Canada, India and Belgium to
take examples, and other federations fall on various points between these
extremes. It is important there to
identify the factors and processes leading to these variations.
The third of these variations is an
issue that arises from the Canadian experience of the past four decades and the
tentative beginnings of a process of constitutional review in Germany. It is the issue adapting to change in the
changing circumstances, how far is it possible to achieve comprehensive change
and how far it must be incremental. The
Canadian experience is that after four decades of trying to achieve
comprehensive constitutional change, everybody in Canada has agreed that that
is not the route to go. The route to go
is to go by incremental piecemeal approach in adaptation not solely by
constitutional amendment, but by extra constitutional means and so on. On the other hand, the recent total revision
of the Swiss Constitution does give some hope for the possibility of
comprehensive change although in reality it was more an updating of the Swiss
federal system than a radical change to the system as was being contemplated in
Canada. Well, Germany is now launching
itself on this process. As a Canadian,
I simply say: “Be cautious about mega
constitutional politics. It can turn
out to be extremely divisive.”
The
balance of my remarks relates to the totally different discussion that I had
when I moved up here to hear the discussion about Switzerland and India. There I found a fascinating discussion about
the relationship of direct democracy, federalism and multiculturalism and the
contrasting significance of direct democracy which, in Switzerland, is being
seen as a process encouraging consensus politics but in Belgium was feared as a
process that might turn out to be extremely divisive. There was also in that session raised the issue particularly
relating to European federations, the impact on federations as Members of the
European Union in terms of trends for the future, the impact of the European
Union, whether that has a centralizing impact upon the member federations which
happen to be federations, and also the issue of what role the constituent units
in those federations might play at the European level in terms of policy making
and representation.
Another issue that was discussed
there was the issue of coalition politics in India and its benefit for
democracy but coupled with problems for coherence.
Well,
I have rattled through a wide range of issues.
This conference has, in my view, covered a very wide range of issues and
examples. I would like to congratulate
all who have contributed to the conference and wish those who are engaged in
preparing the country chapters for the handbook on this subject well in their
tasks of revision. Thank you.
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