1. Professional Training Programme for Officials from Afghanistan
Basic comparative
concepts of Federalism
Thomas Fleiner
Thursday
November 17th Fribourg
Morning Session

2. What is a federal system?
A federal political system involves (at least) two spheres of government within the same polity, each with a measure of constitutional autonomy, each directly governing and accountable to the people (or a section of them).

3. Basic Elements of Federalism
Constitution
Shared Rule
Self Rule

4. Pairs of competing values
Federalism balances and enables competing values to be secured:
Self-rule and shared rule
Unity and diversity
Uniformity and difference
Solidarity and self-reliance
Co-operation and competition
One challenge in designing a federal system is to capture each of these in a suitable way

5. Other constitutional values
Federalism must be combined with other constitutional values, in both spheres of government, for its benefits to be fully secured. These include:
Legitimacy
Democracy
Constitutionalism, including the rule of law
Effective and accountable government
Mutual respect; a willingness to share power; appreciation of diversity, solidarity, tolerance

6. Importance of institutions
Importance of specifically federal institutions are obvious (eg division of powers)
Institutions of government equally important
Mechanism through which federalism delivered
Mechanism through which other values delivered
Institutional design must capture
Aspirations for federalism
Aspirations for government generally

7. General observations
Many of the institutions that we presently use were designed for unitary states
They need to be fully adapted to the different context of federalism
Range of possibilities is not fixed
Increasing experimentation in recent years
Eg asymmetry, forms of co-operation

8. Comparative federalism
Comparative constitutionalism now a very hot topic
Relevant to:
Making a Constitution
Using a Constitution (in particular, interpretation by courts)
Problems of method of comparison
Particularly for institutional comparison

9. Variations between federations
Degrees of diversity
State of the pre-federal state(s)
History
Legal system
Legal philosophy
Doctrine
Goals of Federations
Democratic system

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

11. 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

12. Division of powers What powers?
Potentially, legislative, executive, judicial
How?
Horizontal/vertical/mixed
Exclusive/concurrent/shared
Provision for co-operation?
Who gets what?

13. 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?

14. Unit representation at the Centre
Why?
Mixture of symbolic and practical reasons
Typical mechanisms for representation
Upper House of central legislature
Making and changing Constitution
Other options
Choice of President/Head of State
Composition of government/cabinet
Composition of Constitutional Court
Central Bank; Fiscal Commission, etc

15. Institutions of the federal units
Designed with federal and other governance values in mind
Quality equally important
Significance of autonomy (within overall constitutional limits)
Separate sub-national constitutions?
The issue of secession

16. Common standards
Many federations prescribe certain common standards, applicable to both spheres of government, in the Constitution itself. Typically these apply to:
Governance (democracy, accountability, republicanism)
Human rights
Economic union (mobility of people, economic activity)

17. Constitution of the federal state
The Constitution should:
Be made by a suitable process
Create the central & constituent governments
Provide the institutional framework
Provide the federal framework
Provide the means for its own alteration

18. Protection & enforcement
A mixture of rigid and flexible
Federal quality of amendment procedure
Effectively enforced:
Usually, general or specialist constitutional court
Other options? Switzerland (sui generis). USA?
Techniques for conflict avoidance: SA
Some internal flexibility eg through co-operation

19. Challenges Making a commitment to federalism
Developing a federal culture
Building sufficient capacity in smaller, poorer units
Ensuring accountability, transparency, responsiveness in all spheres of government and for shared programs
Avoiding unproductive competition & disputes
Providing flexibility to meet new needs

20. Distribution of Powers
Self Rule

21. Main Questions:
Purpose of Distribution
Who decides?
Criteria‘s
What is distributed
Concept and Technique of Distribution

22. Who decides
Constitution maker
Federal Legislature
Both
Court (US, EU)
Common Law: Family Law, Property Law, Contract, Criminal Law, Procedure, commercial law etc.

23. Purpose of Distribution
and Criteria’s
Purpose
Criteria’s
Principles
Legitimacy
Efficiency
Subsidiary
Principle
Diversity
Financial
Capacity
Democracy
Commerce Clause
Justice
Need for
Coordination
Necessary
and Proper Clause
Need for a
uniform solution
Interest of the task
limited to the region
Delegation to
Local Authorities

24. What is distributed
Branches of
Government
Financial
Competences
Governmental
Tasks
Constitution
Making
Income:
Taxes, Grants,
Bonds, Loans
Foreign Policy
Incl. Defence
Legislation
Individual / col-
lective rights
Execution
Mineral Resource,
Water etc.
Public Services
Judiciary
Police
Education, Cul-
ture
Common
Law, Codi-
fication
Expenditures
Health,
Environment
Spending
Power
Economy and
Development
Financial
Equalisation
Civil Law
Common Law

25. Techniques of
Distribution
Concept
Technique
Bottom up
Exclusive
Parallel
Top Down
Concurrent
Parallel Distribution
General Clauses
Supremacy
Detailed
Regulations

26. Legislatures in federations
The first of the governance institutions
Others:
Executive
Courts
All exist in both federal & unitary states
All are necessarily affected by federalism
NB: need to consider both spheres

27. Underlying themes Legitimacy
Democracy (representation of the people overall
Federalism (representation of the people federally organised)
Effectiveness
Capacity to do the job
In a way that reflects the federal character of the polity

28. Context Legislatures are affected by: Form of executive government
Presidential
Parliamentary
Other
Use of direct democracy
Choice of electoral system
Concept of federal division of power

29. What (federal) legislatures do
Make/approve law
Authorise tax/expenditure/budgets
Accountability role
Role in constitutional change
Treaty ratification?
Role in executive/judicial appointments?
Other specifically federal functions?
Federal intervention; interstate compacts, grant distribution etc

30. What (federal) legislatures don’t do
Have final authority over all subjects of legislation
Have final authority over the constituent units
Other federal limits on the manner in which they exercise their powers?
Requirement of uniformity?
Principle of federal comity?

31. Designing a federal legislature
How to capture both:
Legitimacy
Effectiveness
In a way that supplements
Democracy
Federalism
So as to carry out the tasks required

32. The usual answer (applicable in most federations)
A bicameral legislature, comprising
A popular chamber, performing the traditional democratic role
A federal chamber, performing a specifically federal role
In fact, a bit more complicated. Consider:
How each Chamber is constituted
Who does what?

33. The “popular” Chamber Represents the people overall
Has powers to match (money; government confidence)
Elected for fixed or flexible term
Federal influences:
Electoral system
Units as electoral building blocks
Minimum unit representation
Other

34. The “federal” Chamber What does it mean to be a federal Chamber?
Some variables:
Representation of units or of people organised in units
Symmetry or asymmetry
Powers
Significance, for federalism

35. Two (proto) types (on which many variations are possible)
Type 1: Federal chamber represents the units as units
Governments or legislatures?
Veto over legislation affecting units
Other? Eg judges, treaties, constitutional change, federal fiscal arrangements
Probably not: budget, government confidence
Co-operation between governments internal to the federal legislature

36. Two prototypes (continued)
Type 2: Chamber represents the people organised in federal units
Electoral system?
Scope of veto over legislation?
Other?
Probably not: budget government confidence
Co-operation between governments external to the federal legislature

37. Relations between Chambers
Potential for disagreement
(Majoritarian) democracy v federalism
Different party political majorities
Options for dealing with disagreement
Do nothing
Internal resolution mechanisms (eg mediation; joint sitting)
External resolution mechanisms (new elections, referendum)

38. Unit legislatures Likely to reflect federal model, although
(somewhat) less likely to be bicameral
Potential to extend federal principle to governance within unit (eg by representation of local government)
Usual legislative functions
Particular federal functions?

39. Forms of Federal Executives
and Legislatures in
Selected Federations (Watts)

40. Federation
Executive Legislature
Head of Government
Head Fe- deration
Bicameral unic. Leg.
Austr.
Cabinet
Prime Mini.
Monarch
Bicamer.
Austria
Chancellor
El. Presid.
Belgi.
Canada
Prime. Mini.
Germa.
Pres. El. Assembly
Malays.
Prime.Min.
Sel. Her. rulers
Spain CH
Fixed term
Exec.Dire.
Rot. Pres. US
Sep. Pres. Congress
President
Pres. Elected

41. Variations in Selection, Composition and Powers of
Second Chambers S. Watts

42. Selection
Composition
Powers
Role
App. By Fed. Gov. CA Mal.
63% Seats
Equal Regio.
Repr. CA
Absol Veto
Mediation US, CH
Legislature CH; US, AT AU MY
App. By Fed. Gov. Nom. Pr.
Equ. St. Re. AU, US,CH
Abs. Veto f. some Leg.
Legis.; int. Gvt Rel ZA
App. State Gov. GE
2 Cat. Of St. Repres. CH
Susp. Veto time ES MY
Ind. El. State legis. AT IN MY
Weighed. St. Repr. AU. I.
Susp.Veto GE
Dir.El. Simpl. Plur. CH, US
Weighed St. Repr. IN, AT
Deadlock: joint Sitting
Dir. El. Prop. AU
Ad.repr.for other IN,MY
Deadlock: Diss. Joint Sit.
Choice left to Cantons CH
Min. reg. repr. ES,BE
Money Bill Sus Veto IN,My
Mixed. BE.ES, MY

43. Constitution
Making

44. Constitution Constituent Power
Decentralization
Centralization
Legitimacy: Treaty, Agreement, Constitution…?
How?: Procedure
Step by Step
International
Community
Inclusive
Who?
Exclusive
Who decides?