FEDERAL VERSUS NON-FEDERAL INSTITUTIONS
FEDERAL VERSUS NON-FEDERAL INSTITUTIONS
How do we distinguish between federal and non-federal
institutions? The architects of a federalizing unitary state would
have to address the following six basic questions:1. What are the
boundaries of the federal provinces (or how should the boundary
issues be decided)?2. What is the division of legislative and
administrative powers between the central government and the
provinces?3. How are the provinces and/or their citizens to be
represented within the central or federal institutions?4. How are
the markets and legal systems of the provinces to be integrated?5.
What will be the procedure for amending these and other
constitutional structures and provisions?6. Will the secession of a
province be permitted? And if so, what procedures must be
followed?
BASIC COMPONENTS AND OPTIONS FOR FEDERALDESIGN1- Subunit
Boundaries:changing of international boundaries through secession
the question of provincial frontiers goes to the heart of the
federalist solution for minority self-determination. This solution
works for a minority group to the extent that its members form the
majority (preferably the vast majority) within a federal province
or provinces, and also to the extent that the vast majority of the
members of the group reside in provinces in which they are a
majority. It is very rare for ethno-cultural groups in federal or
quasi federal states to coincide perfectly with their subunit.In
principle federal solutions could be improved in some situations by
provincial gerrymandering; by modifying the frontiers of a federal
province in order to include more members and fewer non-members of
the minority group. In practice such border-changing also poses
numerous problems.The changing of provincial frontiers, and the
transfer of communities and territories from one province to
another can directly affect individuals fortunes and well-being, as
well as their shared memories and sentiments; all of which provides
a potential source of grievance for nation-building and
nation-mobilizing.There would be complicated negotiations involving
at least two provinces and the federal government, and any changes
would have to benefit all parties.
It is conceivable that a federation would agree to a general
procedure for changing provincial frontier by way of cascading
referendums, where one or more subprovincial domains (such as
counties or electoral constituencies) could vote to secede from one
province and create a new one or join a neighbouring province. If
the vote within that territory is sufficient to legitimize the
internal secession procedure, then contiguous domains could be
invited to decide whether they want to join that unit in a new
province or remain. 62- The Division of Powers: Wheare: There must
be some matter, even if only one matter, which comes under the
exclusive control, of the general [i.e. central] government and
something likewise under the regional [i.e. provincial]
governments.The division of powers for a given federation will
generally be defined by the following constitutional
provisions:
a list of the powers controlled exclusively by the central
government(i.e. national defence, currency, postal service,
interprovincial and international trade, copyrights and patents,
and the criminal law); a list of the powers controlled exclusively
by the provincial governments (vary widely but sometimes include
the regulation of municipalities, health care, and education); a
list of concurrent or shared powers on which both orders of
government can legislate (such as agriculture, transportation,
taxing powers);rules for what to do when federal and provincial
legislation in shared jurisdictions conflict;a rule for which order
of government has the right to legislate in in the first three
lists of exclusive or shared powers. matters not mentioned No
actual division of powers will be as tidy and categorical as these
criteria might have us believe. First, many areas of government
policies spill across different traditional jurisdictions,
sometimes giving rise to disputes between ministries in the same
government, and sometimes between ministries across the
provincial-and-federal divide. Second, any rigidly defined lists of
competencies are bound to look dated and even inadequate over time.
Consider the case of the stated divisions of powers in the founding
constitutions of the USA, Switzerland, and Canada from the 18th and
19th C How do constitutionalized divisions of power keep up with
social and technological innovation? Sometimes by court decisions,
which may see affinities between the old (postal service) and the
new (telephones or the Internet), and interpret the old division of
powers accordingly. Sometimes the constitutional document is
actually amended explicitly to assign new powers to one order of
government or another;Third, the use of instruments like the
federal spending power by which federal governments make and
finance policy in areas of exclusive provincial jurisdiction by
offering the provinces money in return for their meeting certain
standards or following certain principles in the administration of
a given programme.The division of powers is the flashpoint for so
many disputes between rival minority and majority nation-building
projects in multinational federations. Almost any area of policy
can become a lightning rod for nationalist attention in a given
federation if one side or the other comes to see it as central to
its identity, even if they do so for largely symbolic purposes Even
in a culturally homogeneous setting, the creation of provincial
boundaries (and governments responsible for exercising the
provincial powers within those boundaries) by itself will give rise
to provincial societies with distinctive political cultures and
identities. Provincial elections will involve provincial political
elites, parties, and issues. And social policy, which is typically
either under provincial control or administered provincially,
provides a medium for provincial interest-groups to grow and these
groups, in turn, mobilize provincial publics in distinctive
ways.one final kind of nationalist demand with respect to the
division of powers that has come to the fore in recent years:
so-called asymmetrical federalismMinority nationalists typically
demand that their provinces have a claim to control powers that the
other provinces do not need to control (i.e. immigration and
naturalization, or language policy).In the case of the asymmetric
transfer of a federal power to a minority-controlled province,
there is also a clear shift in the balance of nation-building
powers in the minority nationalists favour.3- Representation in
(and Design of) Central Institutions:Since the central government
also has exclusive and shared rights to legislate and administer in
certain policy domains over the minoritys territory, it follows
that minorities can also enhance their control over their destiny
if they can influence how the central government exercises its
power. This is partly a matter of having a voice and a vote within
central institutions. But it is equally a matter of having central
institutions that are designed in ways that will take proper
account of these voices and votesThree kinds of central
institutions that will have different sorts of implications for
minority or provincial autonomy:basic political institutions for
deciding upon policy and overseeing its implementation, namely the
executive, the legislature, and the head of state;the civil
service, including the military and federal police forces, along
with important federal agencies and some state-owned
enterprises;the courts, in particular the court that has the
ultimate say over the interpretation of the constitution.Basic
Political Institutions: minority nationalists seeking a bicameral
legislature, where the upper house has representatives nominated by
the provincial legislatures and acting on the orders of these
legislatures or their governments.The right of this chamber to veto
federal legislation: minority nationalist elites would not only
have access to nation-building powers at the provincial level, they
would be able to prevent the enactment of some federal legislation
with unwanted majority nation-building implications in their
province.Almost all democratic theorists and all federations opt
for a lower house that represents the citizens of the federation on
a roughly equal basis. There may nevertheless be demands that
minorities be overrepresented, or that members of the lower house
representing minority provinces be given a veto on certain types of
culturally sensitive legislation. Democratic federations typically
do not have formal quotas for representation of provinces, regions,
or minority groups within the executive or cabinet.
It is, however, typical for there to be strong conventions in
diverse federal states to ensure informal forms of representation
at that level. In more sharply divided societies, such as Belgium,
there can even be parallel ministers in the federal cabinet
responsible for administering the same services (say, health or
education) for their respective communities. There may also be
calls for the head of state or the head of government to be filled
by a member of the different constituent cultural communities on an
alternating or rotating basis (as the presidency of the EU has
been).
Civil Service: the central governments bureaucracy, military,
police forces, and state-run agencies and corporations have been
dominated by members of the majority national community.The
movement to ensure adequate representation and opportunities for
members of national minorities is often initiated by minority
groups themselves in the name of fairness and equality of
opportunity. But it is also embraced by true federalists keen to
reinforce the sense of equal citizenship in the federal state;
Minority nationalists may be politically unsure about such reforms
of the federal state. On the one hand, they have to be in favour of
ending the discrimination against their people. But on the other,
they know that if the federal bureaucracy underrepresents their
people and does not operate in their language, then they can use
this fact to mobilize support for more autonomy. So, they may be
inclined to dismiss the achievement of a truly representative and
multilingual federal civil service.
Courts: The role of the courts, and in particular the court that
serves as the final arbiter of the constitution, is essential in a
truly federal system. In the ideal type of federation neither order
of government is superior or subordinate; both derive their
sovereignty and legitimacy from the constitution.This means that
the Court should not be seen as a branch of the central government
per se
One of the important functions of the Court is to rule on
jurisdictional disputes between orders of government The Court will
have to decide which governments programme takes precedence when
the division of powers awards both concurrent powers, and also when
one government is trying to legislate in a jurisdiction in which
the other order of government has an exclusive power.In a
federation with a Bill of Rights and judicial review, the Court
will sometimes be asked to bring down legislation that is thought
to violate basic individual rights.How can the Courts impartiality
and independence be ensured?1- how are the judges nominated,
vetted, and appointed to the Court?2- from which communities do the
judges originate? 3- how can the judges, and the Court more
generally, demonstrate their continued impartiality and
independence? Minority nationalists might well demand that a
certain quota of judges be nominated by the government of the
minority province. They might also demand a certain
overrepresentation of minority judges on the Court. Minority
nationalists typically devote less attention than they probably
should to the relevance of central institutions.Their public
rhetoric of self-determination leads them to focus on the division
of powers and on the powers that they would like to
control.Unfortunately, seeking the reform of central institutions
may be a game that minority nationalists qua nationalists cannot
win. It is very difficult to make the necessary constitutional
changes since these require the broad support of the national
majority; 4- Integration of Markets and Legal Systems: There are
many examples of the long-standing coordination of different legal
systems in federations or otherwise divided societies (including
Canada, the USA, the UK, India, Israel, Kenya, and South Africa),
especially concerning the coexistence of Roman civil law with
British common law, and of family law from secular and religious
traditions.Little reform of markets and legal systems may be
required in the case of the federalisation of unitary states.5-
Constitutional Amending Formula: In federal states, a role for both
provincial and federal governments in the amending of the
constitution is implied by the idea that each order of its
government is sovereign in its realm, and that neither order is
superior or subordinate.Once the terms of the federation have been
agreed to by all parties they cannot be unilaterally changed by one
party or another.In Spain and India, for example, the constitution
can be amended by the central government on its own.neither the
provincial governments collectively nor the central government can
unilaterally amend the constitution.But it does not imply that the
constitution can never be modified against the objections of any
given province.Minority nationalists will be worried about any
changes to the division of powers or the design of central
institutions that either reduce their own nation-building powers,
or increase those of the federal government.There is a flip side to
the minority nationalists desire for a veto on constitutional
change. Members of the national majority are also reluctant to hand
over such a veto for fear that the minority group could use it to
frustrate their (the majoritys) attempts to be a self-determining,
self-governing democratic community.6- Secession Clause: Secession
is the ultimate dream for hard-core minority nationalists, opening
up the possibility that they will be free from most outside
interference to shape their identity authentically. If a
provincealmost certainly a national-minority province decides it
wants to secede from a federation it is, in effect, asking for:a
major constitutional amendment (one that will write it out of the
constitutional order);a radical transformation of the division of
powers (it is asking for all, or virtually all, of the federal
powers to be transferred to it); and a radical diminution of its
representation in federal institutions
SYMBOLIC TERMS OF FEDERATIONMany constitutions begin with
preambles containing declarations of the fundamental values of the
state or its people or peoples. They might also mention principles
that the state endorses or takes to be self-evident, or which
underlie its constitution, as well as claims of fact (especially
alleged historical facts), and even theological or metaphysical
claims about, for example, the nature and divisibility of
sovereignty.They point so directly to (often contested) aspects of
national identity.Most constitutions:give a name to the people of
the state, often conflating it with the name of the nation to which
all or most of the people are declared to belong;indicate
boundaries of the state, often referring to it as the nations
homeland;indicate rights of citizenship (or nationality) by virtue
of either blood or birth within the territory of the state;entrench
a range of citizenship rights, including civil, political, and
social rights;indicate an official language or languages.In
addition, many states constitutions: recognize minority
nationalities or national minorities; indicate an official
religionindicate an official script or alphabet; indicate the
nature of official symbols like the flag, the national anthem, or
the coat of arms;name a particular family with rights to the
throne, along with rules for succession;state a number of alleged
historical facts indicating important shared memories and sources
of pride or humiliation;indicate certain citizenship duties or
responsibilities, especially concerning military service.These
provisions correspond to important aspects of the way an individual
identifies with his/her state/nation or about what it means to an
individual to be a member of that political community.Any of these
constitutional declarations can be deeply contested within the
state.Nationalists tend to speak in the language of
self-determination, as for example when minority nationalists
explain why they need a federal power to be transferred to their
province. In the language of recognition, nationalists argue that
the constitution ought to recognize the reality of the existence of
a certain nation with certain characteristics and values.Although
France is composed of several ethnolinguistic communities that
sociologists would recognize as historic national minorities, the
constitution clearly refers only to one French people, and the
rights in the Declaration and the 1946 Constitution are the classic
individual rights of citizenship.It also includes the principle
that all sovereignty resides essentially in the nationAll of this
language and symbolism leaves no doubt that France is conceived as
essentially a union of equal citizens, where all citizens are
members of one nation, France. It represents a victory for a
particular conception of the French nation and a defeat for rival
conceptions of that nation, as well as for historic rival minority
nationalities, such as the Bretons, the Basques, the Catalans, and
the Corsicans. They contained territorially concentrated national
minorities, Croatia, Macedonia, Romania, and Slovakia all declare
their states to be indivisible in the opening lines of their
constitutions.It is common for states in this region and elsewhere
to declare themselves to be the national state of the titular
nation.Sometimes this nation, like France, is presumed for
constitutional purposes to include all citizens regardless of
ethnicity (as is the case in the Romanian, Slovakian, and Russian
constitutions). And sometimes it is made clear that the state is
the national state of a titular nation, but that this state is also
shared with members of national minorities who are not members of
the titular nation.In Croatia in the Preamble to its constitution
(as amended in April 2001), offers its national minority not merely
equality of citizenship and equal individual rights, but also
national rightsA true federation is a simultaneous union of two
groups: a union of citizens and union of constituent unitsThe 1999
Preamble declares: We, the Swiss people andCantons . . . , adopt
the following Constitution. And Article 1 proclaims that The Swiss
people and the Cantons of Zurich, Berne [. . . and 24 others, each
identified by name] form the Swiss Federation.The challenge for
federalism today in multinational societies is somewhat different:
It will always be about getting different political units to act in
concert, but also to get different national communities to
cooperate.Repeated attempts by both Canadian and Quebecois
political elites before and since the 1982 amendments have failed
to incorporate the kind of recognition and autonomy demanded by
French-Canadian or, latterly, Quebecois nationalistsIf national
minorities cannot get this sort of recognition controlling subunits
in federations, then they have additional motivation to seek it
through secession
