Introduction Belgrade Faculty of Political Science Master Course on Compound Government Prof. Thomas Fleiner Guest Professor November 1 to November

Issues: 1 Democracy Political Parties 2 Rule of Law 3 Human Rights 4 Minority Rights, Right of Self-Deter- mination 5 Autonomy: Legal, Economy, Political 6. Participation 7. Competition with federation other Federal Units

Problems: Balance Shared Rule Self Rule Centralization - Decentralization Interconnections: Federation – Fe- Deral Units cooperation between Federal Units Fiscal Federalism and economic Autonomy, factual and legal autono- my, equalization International cooperation Legitimacy: Federation – Federal Units Rule of Law Complexity

Notions: Federalism Compound Government Sovereignty

Lectures: Distribution of Powers Power - Sharing Fiscal Federalism Minority Rights

Decon- centration administra- tive Decision Order Revoca- tion Decentrali- Sation Legislation Autonomy Responsi- Bility Finance Federation Constitu- Tion Constitu- tion ma- king Legitimacy Confede- Ration Treaty Legitimacy Internatio- nal court Federalism Unitary state - Confederation Decentralization

Variations between federations Degrees of diversity State of the pre-federal state(s) Legal system –Legal philosophy –Doctrine History Other?

Institutional building blocks: overview A division of powers Two (+) spheres of government 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

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

Division of powers What powers? –Potentially, legislative, executive, judicial How? –Horizontal/vertical/mixed –Exclusive/concurrent/shared –Provision for co-operation? Who gets what? NB:implications of the answers to these questions for the institutional structure of all governments

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?

Challenges Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are met The operation of these institutions may be affected by the wider context Both logic and context need to be appre- ciated to understand another system (and to borrow from it)

Some Examples of Prototypes United States Presidential System 2nd chamber Competitive Federalism Goal of F Judiciary Germany Parliamentary System 2nd chamber Executive Federalism Goal of F Judiciary Switzerland Directorial System 2nd chamber Executive Federalism Goal of F Judiciary

Some examples of adaption Australia American System with Parliamentary Government And one Common Law Switzerland American Senate French legal System Direct Democracy European Union German Second Chamber Directorial System

Concluding Remarks Comparing political systems requires a clear notion of the point of Reference This point can be one of the two governmental systems Tertium comparationis: Principles of Good Governance e.g. accountability, legitimacy, Transparancy, corruption

Democracy Of the people – by the people – for the people

Why Democracy? Liberty- Self-Determination Finding the Truth Rational Conflict Management Efficiency Majority Participation - Legitimacy Accountability Limit Governmental Power

Democracy, Legitimacy and: …... Efficiency Fragmented Nations Transition Globalization Equality Liberty Rule of Law Tyranny of the Majority Transparency

Types of Democracy Procedural Substantial Direct Represen- tative Semi-direct Winner takes all Consociacional Democracy

Party System Electoral System Separation of Powers Information and Media Accountability Participation Capacity to deliver Effective administration Democracy: Of the people By the people For the people Decentralization Local Governance Minorities Fiscal Governance Collective Rights Minimize Corruption Cooperation

Problems of Democracy Lobbies Principle Of Oligarchie Corruption Public Interest Economy Exclusion Foreigners Minorities Volonté Générale v. Volonté de Tous Media

Representative Democracy RepresentationConstituency Pluralism of Parties The whole people Volonté Générale Higher being Volonté de Tous Interests Electoral System

People 55% Parliament Executive Elections 45% Parties in Government

Semi-direct Democracy Parliament Parties Economy People: Elects and decides Executive Admini- stration Volonté Générale?

Separation of Powers Division of Labour Separation of Powers Checks and Balances New Challenges Media Terrorism Globalization Migration

Limits of Sovereignty Bonhams Case Independence of Judiciary Impartiality of Judges Professionalism of Judicial System Access to Justice Fairness of procedure Adversary – inquisitory procedure Jury - Trial Right to defense Time Mediator - Ombudsperson Rule of Law That men are ruled by law an not by men Justice must be seen to be done

Constitutional Catalogue Restriction Emergency Reference to international law Fairness in Procedure Substantive due Process Constitutional – Administrative review (access to justice) Human Rights Golden Rule: Just as you want others to do for you, do the same for them; no discrimination Human Dignity Expression Information Religion Property Assembly Information Four freedoms Economic and Social Rights: Educa- tion, health, labor, housing

Main Problems of Constitutions Judicial Independence and access to justice Vagueness - implementation Consistency Decentralization Transparency Corruption Accountability Human Rights – restrictions - emergency Constitutional Amendments and Revision Constitutional review Referendum

Conclusions

Criteria Input - output Minorities Transparency Accounta- bility Participation Capacity to Learn Legitimacy Rule of Law Efficiency Minimalise Human Failures