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Federalism past and present

Notes d'analyses et opinions

Federalism past and present

Messagepar gerald » Dim 08 Sep 2013 19:21

(Le présent document est la traduction anglo-saxonne de la note " Histoire et actualité du fédéralisme " parue en août 2012 sur ce forum : Version française)
At a time when we as Europeans are re-examining the issue of our collective identity and the degree of interdependence that we are willing to assume, it may be useful to obtain a better understanding of how living together works under the existing models of federalism. Rather than aiming to be exhaustive, this text is intended to stimulate reflection by comparing different examples of the federal phenomenon.

There are 25 federal states in the world today (see the attached list) represented on all continents and which together account for around 40% of the world’s population.

CHARACTERISTICS

The origin of the word “ federation ” is to be found in the Latin “ foedus ” meaning “ alliance ”. In modern acceptance, a federation is a political grouping of federated entities, which have ceded part of their power to a superposed federal entity in which they participate. The competencies of each level of power and the relationships between them are defined in a constitution or organic law, which distributes law-making power between the central legislative body (federal state) and the legislative assemblies in the federated entities. The majority vote is characteristic of a federal structure.

The word “confederation” relates to an alliance of independent entities, which commit to act together in a limited number of spheres. This objective may lead them to create structures in common, without setting up a superposed central legislative body. A confederation is organised through one or several treaties between its members. At meetings of representatives of members of a confederation, who may have the role of ambassador, unanimous voting or a reinforced majority is characteristic.

A confederation may be a stage of development (of more than 500 years for Switzerland, about 10 years for the United States) towards the establishment of a federation. However, in certain cases, the term “ confederation ” may continue to be applied to a political grouping which has in fact become a federation. This is the case for Switzerland (“ Swiss Confederation ”) and Canada (sometimes referred to as “ Canadian Confederation”).

Whereas within a federation, the federated entities (which may be “ states”, “ regions” or “ territories ”) are generally defined by the territory which they occupy, a federal structure may also have a community definition. In this case, populations designated by ethnic or cultural criteria receive a specific autonomous status within the constitution, which may coexist alongside a territorial definition. This is the case for indigenous populations in the United States, Canada, Australia and Russia.

The contrast is often drawn between the federation and the unitary state where political power is centralised and regional autonomy relatively limited: France as an unitary state can be contrasted with Germany’s federal structure. However the distinction is not always so easy to make in practice. As an illustration, it is interesting to look more closely at the case of Spain, sometimes considered as unitary, sometimes as federal.
Article 2 of the Spanish constitution of 1978 states that “the unity of the Spanish nation is indissoluble and the Spanish nation (is) the common and indivisible native land of all Spaniards”. However the same article guarantees “the right to autonomy of nationalities and regions”.
Article 3 declares that “Castilian is the official language of the State (and that) all Spaniards have the duty to know it and the right to use it” but that “the other Spanish languages are also official in their respective autonomous communities” and that “the linguistic richness and diversity of Spain is a cultural heritage which is the subject of special respect and protection”.
Articles 143 to 158 concern the Autonomous Communities. Article 143 details the procedures which allow “contiguous provinces with common historical, cultural and economic characteristics (…) to set themselves up as Autonomous Communities”. The initiative for an organic law to do this lies with the regional parliament and continues in the national parliament (“Cortes”), before which a delegation of members of the regional parliament may come to defend their project. The citizens of the Autonomous Community then have the last word by voting by referendum on the resulting draft organic law, subject only to recourse before the Constitutional Court. The result of these procedures has been the establishment of 17 Autonomous Communities covering the entire territory with very variable and unequal competencies, since Articles 148 and 149 give each community the possibility to fix the level of competency which it wishes to exert, while the constitution prescribes no common system nor equal share of competencies.
Experts point to differences between the constitutional structure of Spain and that of a “true” federation, particularly from the taxation and judicial viewpoints. Nevertheless when compared to the resemblances, differences appear limited.

Other examples of hybrid structures are the United Kingdom (where Wales, Scotland and Northern Ireland have autonomous Parliaments alongside Westminster) and the Popular Republic of China where a federal structure has developed without formal legislation through the practice of granting a high degree of autonomy to special administrative regions.

ORIGINAL HISTORICAL CONTEXT

In their great majority, modern federal states, both in their number and in terms of their population, are the outcome of colonial history, and are consequently situated outside Europe. However, federalism has long been present on the European continent where it presents specific characteristics.

Concerning federations deriving from colonial history, two main patterns of development can be discerned. In the first, autonomous communities of colonial settlers are formed far from the mother country and remain there after the departure of the colonial power. The federations of North America (United States, Canada), Central America (Mexico) and South America (Brazil, Venezuela, Argentina) follow this pattern, as does Australia. However the historical process by which these federations were set up differs. In 1777, thirteen British colonies of North America set up a defensive alliance against the colonial power in the form of a confederation, rapidly to be transformed into the federation of the United States. In contrast to this violent break-away, the establishment of federal structures in Canada and Australia corresponds to a process negotiated over many years between the colonies and the British government, starting in 1867 for Canada and in 1898 for Australia, and embodied in a series of organic laws passed in the British parliament and in parallel in the legislative assemblies of the colonies.
Mexico had several constitutions during the 19th century (1824, 1843, 1857) but the modern federal structure of the United States of Mexico was established with the constitution of 1917 following the Mexican Revolution. In Brazil, after the monarchy which followed independence (1825-1889), the “Old Republic” (1889-1930), although federal in form was an oligarchy. Following the “coup d’état” and period in power of the dictator Vargas (1930-1945), the initial movement toward democracy during the Second Republic (1945-1964) was interrupted by the military dictatorship (1964-1985). The 1988 constitution which followed this finally established a modern federal state.

The second pattern of federal development tied to colonial history relates to the aggregation by the colonial power of vast, highly populated territories, which at the time of decolonisation, form states of great ethnico-cultural diversity. In India, the second most populated state in the world, in Pakistan and in Nigeria there are dozens of languages. The federal constitutions of these states all date from the period of decolonisation following the Second World War.
South Africa is situated halfway between the two patterns described, with the continual presence of the descendants of colonists in a multi-cultural context. The 1996 constitution established a double-chamber structure based on that of the United States constitution, although the term “federation” does not appear in the text.
In both the patterns described, the federal structure provides a remedy to the political vacuum left by the decolonisation process, by taking into account the aspirations of the federated entities to a degree of self-government and cultural diversity.

Although the historical process does not correspond to decolonisation as it occurred elsewhere, the disappearance of the Russian Empire and subsequently of the Soviet Union gave rise to the establishment of the Russian Federation to fill the political vacuum in a multi-cultural context created by centuries of territorial expansion.

In Europe, federal structures originated in different historical circumstances. The Swiss Confederation (which is in fact a federation since 1848) was born in the second half of the 13th century as a defensive alliance between three cantons, in opposition to the Habsburgs within the Holy Roman Empire where these territories were situated. The historical circumstances concerning the development of the Confederation are given below.

Unitary and confederate state structures had alternated in the recent history of Germany and Austria. At the end of the Second World War, when the issue arose of the future political structure of these states, the Western Allies encouraged the establishment in occupied Germany of a federation of “länder” to put the previous totalitarian unitary state structure behind them.

From 1973, Belgium established an original federal structure (see below) in an attempt to resolve problems between communities.

PROCESS OF FORMATION AND STRUCTURE

Examples of the formation and development of federations will bring out the internal workings of this political structure and the thinking of the political leaders who conceived it.

The United States

The formation of the Confederation of the United States, rapidly transformed to a federation, was the invention in urgent circumstances under the influence of the ideas of the Enlightenment, of a political model which was to be copied repeatedly in the world. The American double-chamber structure put forward for the first time a model offering a solution to a delicate problem: how to achieve a balanced political representation at the federal level between, on the one hand the citizens of the entire nation, and on the other the governments of federated entities of different sizes and importance of population.

Following a series of ruthless measures taken by the mother country from 1763 mainly in the shape of taxes on imported products, the thirteen American colonies of Great Britain initiated against London a ten-year escalation of petitions, boycotts and increasingly violent demonstrations. A network to coordinate the actions between associations of militants in the different colonies was set up. In 1774 the colonies, which henceforth referred to themselves as “states” rather than “colonies”, sent delegates first to several inter-colonial assemblies to decide on actions to be taken in different fields of the conflict, then to a First Continental Congress in Philadelphia to organize resistance globally. This congress tightened the coordination against the mother country, sent an “Address to the People of Great Britain”, a petition to King George III and invited the Canadian colonies to join the struggle, in vain. It was decided to hold a Second Continental Congress in May 1775. A month beforehand, the first battle of the War of Independence (1775-1783) took place at Lexington and Concorde.

The Second Continental Congress began with the urgent appointment of George Washington as head of the American army. The intellectual effervescence of 1776 gave rise to the very influential book “Common Sense” by Thomas Paine in praise of independence, then on July 4th, the Declaration of Independence written by the Second Congress. Between 1776 and 1780, the States put into place written double-chamber constitutions with a vote generally qualified by ownership, and in certain cases (notably Virginia) with a declaration of rights.

The absolute necessity to coordinate military operations, to finance them and to ensure the logistics of the continental army forced the American states to unite. It was during debates within the Second Congress that the Articles of Confederation were born; they were signed in 1777 but came into force only in 1781 due to delays in ratification. At this point the Second Congress became the Confederate Congress. Opposition during the discussions, between partisans of a strong confederate state (“Federalists”) and those supporting large autonomy of the confederate entities, already prefigure positions taken a few years later at the time of the drafting of the federal constitution.

The thirteen articles establish the congress as the confederate institution, each of the thirteen states having one vote (article 5) without weighting. A majority of nine (70%) is required for decisions in the military, diplomatic and financial areas (article 9) and to admit other states (article 11), but changes to the articles require a unanimous vote (article 13). Competencies given to the confederation are clearly delimited (article 9): the congress declares war and peace, manages international relations, arbitrates differences between states and fixes exchange rates) while the states retain their sovereignty in spheres not expressly delegated (article 2). The states commit to mutual assistance for defence (article 3).

The citizens of each state may circulate freely in another state and enjoy the same privileges as its citizens; persons wanted by judicial authorities of one state must be extradited to it and each state recognizes the judgments pronounced in the others (article 4). Expenditures for war and other common purposes must be settled by the confederation with funds supplied by the states in proportion to the value of their land (article 8).

The articles were drafted hurriedly in a surge of utopian feeling influenced by the concept of “public virtue”, which was held to ensure the smooth functioning of institutions. The document contains no coercive mechanism to force the States, who were jealous of their new independence, to finance the congress, which had no resources of its own and was obliged to borrow heavily to finance the war. After the hostilities, the British government considered that the congress, which had no power on customs duties levied by the states, was not credible as a commercial partner. Further, farmers and artisans in debt, at grips with the economic problems which followed the end of the war, formed militia threatening the courts in Massachusetts and in Virginia. When the congress was called to the rescue, it was unable to raise the necessary funds from the other states. The architects of the confederation realized that a more pragmatic and structured approach was required to create an effective union, and the congress called together a convention with 55 delegates in March 1787 to improve the articles. In fact, the delegates were to go beyond their mandate in drafting a federal constitution.

The debates at the convention chaired by Washington pitted the Federalists (Hamilton, Adams), who wanted a strong and protectionist central government to strengthen the economy - a position corresponding to the interests of industry rather than those of the people - against the Republicans (Jefferson) who wanted to limit central powers and promote agrarian interests and human rights. Another type of opposition surfaced during debates relating to the federal legislative chambers, between more and less heavily populated states. In addition, there was an uneasy relationship between the southern slave states and the others concerning the way to count the slaves for voting purposes and define citizens’ rights. The delegation from Virginia led by Madison presented at the outset a draft in which the main lines of the constitution are already apparent, with separation of powers at federal level between executive, legislative and judicial branches, a double-chamber parliament and the supremacy of federal law. But the “Virginia Plan”, supported by the other large States, provided for direct election of the lower chamber by citizens, with a number of members per State weighted by population and the election of the upper chamber by the lower. States with a lower population supported the “New Jersey Plan” which proposed an improved version of the Articles of Confederation where all states had an equal vote. After several weeks of deadlock, an agreement was reached on the basis of the “Connecticut Compromise”, by which the lower chamber (House of Representatives) would be elected directly by citizens with a number of representatives per State weighted by population, while in the upper chamber (Senate) the states would be represented equally with two senators per State. The final document consisted of seven articles to which 27 amendments have been added over time, of which the first 10 make up the “Bill of Rights” ratified in 1791.

Article 1 establishes the legislative powers, prescribes the composition of the two chambers and lists the competencies of the Federal State: to levy duties and taxes, borrow, mint money, regulate foreign trade and trade between federated entities, negotiate treaties, declare war, maintain armed forces, militia and navy, establish federal courts subordinated to the Supreme Court. The House of Representatives is renewed every two years, the Senate by one third every two years, each Senator having a six-year mandate.

Article 2 describes the executive function and the electoral process for the President and Vice-President (subsequently modified by the 17th amendment) by indirect universal suffrage through a college of Electors in each state.
The Supreme Court (article 3) is an independent constitutional court and the highest appeal court representing the judicial function of the Federal State, part of a system of “checks and balances” to maintain an equilibrium between the institutions. A further feature of the system is the faculty for the President to veto a draft bill presented by the Congress, obliging the legislative chambers to rework it and vote it with a two-thirds majority before it can be promulgated. This constitutional architecture was inspired by the theories of Locke and Montesquieu. Both chambers vote legislative texts and can initiate legislation, except where tax legislation is concerned, where the initiative lies with the lower chamber (House of Representatives). The Senate has the particular power to approve the ratification of treaties and nominations made by the President. The substance of Article 11 of the Articles of Confederation, which limited the competencies of the confederation to those specifically delegated to it, disappears in the constitution where the federal government can employ all means necessary to exercise its power. Whereas the Articles of Confederation were an agreement between sovereign states, the constitution establishes a structure based as much on the people as a whole as on the states, thus establishing cohesion at national level. This is certainly one of the principal reasons for the success of this model.
It is interesting to note that at the time of the secession of the 11 southern slave states, followed by the Civil War of 1861-65, the secessionist states when drafting their constitution followed very closely the constitution of 1787, simply retouching it to protect the institution of slavery.

Among federal constitutions in the world most directly influenced by the United States model, those of the major federations of Central America (Mexico) and South America (Brazil, Argentina) must be mentioned. In those are to be found a strong presidential executive elected by direct universal suffrage and a double-chamber legislative architecture with a senate where representation is not weighted according to the population of the states. However, the Mexican and the Brazilian constitutions in particular differ from that of the United States by the extensive treatment given to the declaration of citizens’ rights in general and those of minorities in particular. This emphasis may be explained by the ethnic mix of the societies concerned and the episodes of military dictatorship which they have experienced.

The Brazilian constitution drafted in 1988 was also influenced by the German constitution : its Article 60 forbids the modification by constitutional revision of certain of its fundamental structural characteristics: the federal principle, the democratic principle and the protection of fundamental human rights, which may be compared with Article 79 of the German constitution (see below).

Switzerland

Originating at the end of the Middle Ages, the union of the Swiss cantons followed a strictly confederate path for more than 500 years. The core of member cantons, linked by treaty and jealous of their independence, grew in number with geographical contours which varied however with the alliances of the cantons. This conservative and pragmatic grouping, which brought together a number of different political regimes, was to change under ideological pressure from outside.

The confederation between the three original German-speaking cantons took the form of a perpetual union in the areas of defence and judicial structure aimed against the power of the Habsburgs. The pact of 1291 drafted in Latin, states: “let all persons know therefore that, considering the malice of the times and to be in a better position to defend and maintain their lives and their property, the peoples of the Valley of Uri, the Landsgemeinde of the Valley of Schwytz and the people of the lower Valley of Unterwald have committed… to lend each other all help, support and assistance… against all those who might make an attempt against their persons or possessions… each community promises the other to come promptly to its help in case of necessity at its own expense and to assist it as much as is required to resist the aggression of evil-doers and to impose damages for the wrongs suffered…this is what they have sworn to observe…in renewal by the present treaty of the text of the former pact.” The date of the former pact is unknown and its text lost. The geopolitical context of the 1291 treaty was the feudal system of the Holy Roman Empire in which four vassal families of the Emperors, among which the Habsburgs, were increasing their influence in the region. The prosperity of the three cantons, due to the opening of a new passage across the Alps by the Saint-Gotthard Pass, drew the interest of those in power. Following a military victory against the Habsburg army at Mortgarten in 1315, foreign policy arrangements were added to the treaties, after which the union developed into the Confederation of Eight Cantons in the 15th century, then Thirteen Cantons from 1513. In the 15th century, many legends grew up around the origins of the confederation, including that of William Tell. At this period also, exclusively French-speaking cantons joined the confederation. Two fundamental turning-points date from the beginning of the 16th century: the Protestant reform which was to divide the country between Protestant and Catholic communities and cantons, and the rise in the number of urban cantons at the expense of agrarian ones. These differences came in addition to the country’s trilingualism. From its inception, the confederation’s central institution remained a Diet assembly, bringing together the representatives of the cantons and taking decisions unanimously.

In the 1790s, public life began to be perturbed by movements influenced by the Enlightenment. When France invaded Switzerland, she established the “Helvetian Republic” in 1798, by imposing the first constitution with a double-chamber legislative body in which the cantons were no longer independent states united by treaty, but the administrative units of a French-style centralised power structure. Eligible voters elected the two chambers. The executive power was a 5-member directorate elected by parliament. The constitution established 3 official languages and put the Swiss Franc into place. Following political troubles, a second constitution was established granting a higher degree of independence to the cantons in 1801, but fresh uprisings occurred shortly after. A plea to Bonaparte as mediator was made by different Swiss currents of opinion. In his letter to the Swiss delegates, Napoleon wrote “Switzerland is like no other State considering events which have taken place there, its geographical situation, different languages, different religions and those extreme differences in customs existing between its different parts”. He assembled in Paris 60 representatives of the various political movements who drafted constitutions for 19 newly defined cantons and a confederate institution again in the form of a Diet. For the first time, the country was given a head of state : the “Landamann” who was the head of the canton presiding the Diet for a year. This regime ended with the defeat of Napoleon, following which a “Long Diet” drafted and adopted a new “Federal Pact” which went back to the traditional schema of a confederate alliance among independent entities, at the same time taking in 3 new cantons to arrive at a total of 22. At this stage the country included five different types of political regime: direct democracies, democracies with a property qualification for voting, aristocratic republican regimes, a federal republic and a monarchy. In spite of this attempt to turn back the clock, the influence of European and American progressive currents of opinion was to become irreversible.

Influenced by the 1830 revolution in Paris, most of the Swiss cantons began to reform their constitutions in a democratic direction. Struggles between radicals (represented mostly in urban and protestant environments) and conservatives (present mainly in agrarian and catholic communities) resulted in a short civil war (Sonderbund War) in 1847. Following this major shock, a new 1848 constitution, revised in 1874 then in 1999, opted definitively for a modern federal structure based on the American double-chamber model, in which the 26 cantons “determined to live together in their diversity, equally and in the respect of each other” give up part of their privileges to a central legislative institution: a Federal Assembly made up of a National Council (lower chamber) and a Council of States representing the cantons. The National Council is composed of 200 representatives of the people elected for 4 years by direct proportional franchise where each canton is a constituency and seats are distributed among the cantons according to their population. The Council of States consists of 46 representatives of the cantons (2 per canton for the 20 most highly populated and 1 per canton for the 6 remaining). The agreement of both chambers is required to pass legislation. The “supreme directorial and executive authority of the Confederation” (article 174) is vested in the Federal Council of 7 members elected for 4 years by the Federal Assembly, including the “President of the Confederation” whose one- year mandate (not renewable the following year) confers no particular power since the Federal Council acts as a college. Article 174 of the Constitution specifies that “the different regions and linguistic communities must be equitably represented on the Federal Council”. The Federal Chancellery is “the general staff body of the Federal Council… directed by the Chancellor of the Confederation” (Article 179) chosen by the Federal Assembly. With the 1848 Constitution, universal male franchise was introduced for the first time in Europe.

The 1874 revision of the Constitution introduced for the first time an element of direct democracy by making possible a referendum to oppose a federal law at the request of at least 30 000 citizens. A further strengthening of direct democracy was brought by an 1891 constitutional modification introducing popular legislative initiative which allowed 50 000 citizens to introduce a draft law to be voted on by the people. The succeeding 130 years have allowed the Swiss democratic system to refine these procedures, which stand as follows in the 1999 constitution : Articles 138 and 139 provide for popular legislative initiative proposed by 100 000 citizens qualified to vote, relating to total or partial revision of the constitution which is then submitted to the people’s vote (total revision) or to the vote of the people and the cantons, with a recommendation of acceptance or refusal by the Federal Assembly which can also make a counter-proposal (partial revision). Article 139a provides for a general popular legislative initiative also proposed by 100 000 citizens to request the adoption, modification or abrogation of legislative or constitutional dispositions; if the Federal Assembly approves the proposition, it prepares the proposed changes, if not, it submits the proposition with or without a counter-proposal to the vote of the people and the cantons (for constitutional modifications) or to the people alone (legislative changes). Aside from the above situations, Article 140 provides for a compulsory referendum with vote of the people and the cantons upon joining collective security organisations or supra-national communities, also upon passing federal laws termed urgent of more than one year’s duration but which have no constitutional base; the same article provides for a compulsory referendum with vote of the people only, for general popular legislative initiatives rejected by the Federal Assembly. An optional referendum at the request of 50 000 citizens with vote of the people is provided for by Article 141 for federal laws, urgent laws of more than one year’s duration, federal decrees in cases set out in the constitution and for international treaties of indeterminate duration or which cannot be denounced, those which include membership of an international organisation or which include dispositions establishing rules of law or involve passing federal laws for their execution. In 1992 the application of these procedures led to the Federal Council’s request to join the European Union being repudiated by a majority of 50,3% in a vote of the people, but membership of the UN being approved by 54,2% in 2002.

An example of the tensions which are inevitably part of all federal structures was provided by the rift which occurred in Switzerland between the French-speaking and the German-speaking communities during the First World War with the former supporting the Allies and the latter their adversaries.


Germany

The territories of modern Germany were administered for many centuries under the Holy Roman Empire by princes who enjoyed great political autonomy. After the dissolution of the Empire in 1808, Napoleon established the Rhine Confederation, which grouped initially 16 and then up to 35 of these principalities which were his allies, excluding Prussia and Austria. Essentially the same German States joined Prussia and Austria after the defeat of Napoleon to form the German Confederation (Deutscher Bund) – 1815 to 1866 - comprising 39 states for which the Bundestag situated in Frankfurt was the assembly of ambassadors. Mutual understanding between Prussia and Austria as the dominant powers was necessary for the Confederation’s existence, consequently it broke up with the Austro-Prussian war (1866). Austria was excluded from the future unified Germany and her German allies annexed by Prussia.

Bismarck then established in 1867 the North German Confederation (Norddeutscher Bund), which was the first step towards German unification with a constitution providing for two legislative houses, the Reichstag, the lower chamber elected by universal franchise but without real power and the Bundesrat, the higher chamber, where the 22 member States were represented, in reality dominated by Prussia. With its double-chamber architecture this structure had in appearance certain characteristics of a modern federation, but remained confederate in its spirit by the weight of the Bundesrat. The constitution of the German Empire (1871) was largely modelled on that than of the previous confederation.

After the defeat of the First World War and the turbulence of the German Revolution of 1918, a parliamentary democracy was established for the first time in German history with the Weimar Republic (1918-1933). During the debates in the constituent assembly in 1919, a proposition was put forward to make the country a unitary state, its promoters holding that this institutional form was more efficient than a federation, which would hark back to the monarchies of the past. The partisans of federalism, who finally won their case in the constitutional drafting, underlined the replacement of the former Bundesrat, which was the centre of power of the länder and notably of Prussia, by a Reichsrat with a purely consultative role and other features in the same vein. The new constitution established a semi-presidential parliamentary democracy.

At the end of the Second World War in occupied Germany, the three western allies, with the aim both of putting the previous totalitarian unitary state behind them, and responding to the project of their former Russian ally to establish a communist German state to the east, encouraged the return to democratic federalism in their zones of occupation. To achieve this, they used as their support the ministers who were presidents of the länder, to whom they made known the principles which were to be respected in establishing the future federal republic. Following debates which were at times difficult, a constituent assembly elected by the länder drafted an organic law to which the allies made only minor modifications. Ten länder ratified it directly. The eleventh, Bavaria, ended up by accepting it, but did not ratify it.

In the minds of German political figures at the time, this 1949 document was provisional, both because of the pressure which they had been under from the allies at the time of drafting, but also because they believed that a new constitution would be written for a unified Germany, which was finally not the case at the time of the 1991 reunification. The context at the time of the drafting comes through particularly in Article 79 which, after establishing the legislative procedures for modification of the organic law in paragraphs 1 and 2, specifies in paragraph 3 that “amendments to the present organic law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in
Articles 1 and 20 are prohibited.” Article 1 lays down the principle of the intangible nature of human dignity and its respect by state institutions, while Article 20 describes the Republic as “a democratic and social federal state” (paragraph 1), states that “authority is derived from the people” (paragraph 2) that “the legislature is bound by the constitutional order, the executive and judiciary by law and justice” (paragraph 3) and that “all German people have the right to resist any person seeking to abolish this constitutional order, if no other remedy is possible (paragraph 4, added later). The federal nature of the republic is thus protected by an “eternity clause”.

The President of the republic has a representative role and executive power is exerted by the Federal Chancellor drawn from the lower chamber, the Bundestag, which has at least 598 members elected by universal franchise every four years through a mixed system which combines the characteristics of proportional and majority representation. The federal double-chamber structure adopted is unique to Germany since the members of the higher chamber (the Bundesrat which represents the länder as federated entities) are not elected and renewed through specific elections, as is the case for example of the Senate in the American model, but delegated directly to the chamber in their quality as members of the government of the land of which they are part. The renewal therefore takes place through the legislative elections in the länder. A weighting system distributes the 69 seats in the Bundesrat between the 16 länder by over-representing the less populated länder with 3 seats, against 4,5 or 6 for the more populated ones.

The federal government must present all legislation which it initiates to the Bundesrat, before it presents it to the lower chamber. The Bundesrat has a total veto on laws (which are numerous in domestic affairs) where the Constitution gives it concurrent powers, or federal laws which the länder have the responsibility to apply. If the opposition parties in the Bundestag hold the majority in the Bundesrat – a frequent occurrence in the republic’s history – the Bundesrat’s total veto power can lead, in spite of conciliation procedures, to stalemate situations made potentially durable by the inertia in the renewal procedures of the upper chamber and the fact that it cannot be dissolved. This makes political cohabitation between parties inevitable. The Bundesrat can also use a suspensive veto on any other legislation including that concerning taxes shared between the federal administration and the länder (i.e. most taxes), and which the Bundestag can cancel only by using the same majority (simple or two-thirds) with which the Bundesrat passed its suspensive veto.

The increase in the number of laws passing before the Bundesrat since the republic’s beginnings and the increase in the competencies of the federal state in relation to those of the länder led to what has been called “the erosion of federalism”, making necessary the constitutional reform of 2006. This introduced certain corrections in the dividing line between federal and regional competencies and reduced the frequency with which the Bundersrat intervenes. Since 2007 a parliamentary commission has been working on a modernisation of the relationship in the tax field between the federal state and the länder, including a change in the equalization system, to come up with a more equitable distribution of tax revenues between rich and poor länder.

Belgium

The development towards federalism in the Belgian state can be seen as an attempt to contain the cultural cleavage which seems to threaten its existence.

As the differences between the two principal communities, Flemish-speaking and French-speaking have hardened, the successive Belgian governments have attempted to respond, first by introducing in 1970 a certain degree of decentralization into the framework of the unitary state with the creation of 3 “communities”, which are self-governing in the cultural field (Flemish, French-speaking (Wallon) and German-speaking).

During the 1980’s, still within the unitary state framework, 3 “regions” – Flemish, Wallon and Brussels Capital City were given self-governing capacity in the economic and commercial spheres. In 1993 a federal constitution was finally introduced, bringing together the previous reforms and organizing them around Article 35 which specifies that “the federal authority’s competencies are limited to matters formally attributed to it by the constitution and legislation made in virtue of the constitution” and that “the communities and regions have competency for other matters”. However for the moment, no agreement, which requires a two-thirds majority in each linguistic group in each of the two federal legislative chambers, has been reached on these competencies. This article is therefore inoperative at present and the competencies effectively exerted are those defined previously.

Whereas usually in a federal structure, a double-chamber legislative authority is found at federal level with a single category of federated entities which are the states, in the Belgian constitution the federated entities are split between communities and regions, each with a government, a parliament and exclusive competencies in relation to each other but also in relation to the federal authority, without concurrent competencies. The competencies of the federated entities extend to the signing of international treaties, even though their quality as subjects of international law may be doubted. The great complexity of this construction has been simplified on the ground, particularly on the Flemish side. In practice, the Flemish region has never been established and its competencies have been assumed by the Flemish community.

India

By the magnitude of its population at world level and extreme cultural diversity, India is an exceptional example of the federal phenomenon. Seven principal religions, several hundreds of languages (of which the two official languages: Hindi and English) and a multitude of castes and sub-castes cohabit there. It must be added that the British Raj represented the first attempt to unify the Indian subcontinent totally and previous attempts had always been partial. The unity of the nation is therefore an overriding preoccupation for political figures at the federal level, particularly as the memory of the partition between India and Pakistan at the time of the decolonisation remains vivid.

The federal constitution of India was put together starting in 1946 at the time of the decolonisation of the subcontinent, by a constituent assembly called together by the British colonial authorities. The text was signed at the beginning of 1950 after being approved by referendum. The institutional structure is based mainly on the text of the Government of India Act of 1935, which was intended to modernize the colonial regime by granting a higher degree of self-government to the provincial assemblies by opening them up more fully to Indian representatives. In fact the intended federal institutions did not come into being at the time, even if other dispositions of the act did come into force. The 1935 text was an attempt to satisfy the demands of Indian anti-colonialist representatives who wanted to obtain the same degree of self-government within the Commonwealth as Canada and Australia, where the process of establishing self-governing federal structures had begun in the nineteenth century and by 1935 had already been effective for decades. Like the democratic practices of Canada and Australia, those of India are strongly influenced by English parliamentary traditions, particularly where the role of the head of state and the relationship between the executive and legislative authorities are concerned. However, as for Canada and Australia, the federal structure of the Indian state is based on a variant of the American double-chamber model.

The preamble to the Constitution describes the state as “sovereign, socialist, secular and democratic”. The cultural and religious diversity of India are such that to present an opposition which would be credible to the colonial power, the principal anti-colonialist formation, the Indian National Congress, was obliged at all costs, starting in the 19th century, to obtain the support of all facets of Indian opinion. In this way a practice of compromise, pluralism and cohesion took root and at independence developed into multicultural federalism, which is not without its vicissitudes but remains on its feet.

The Indian Federation consists of 28 states and 7 territories. The political divisions left by the colonial power were considered inadequate to reflect the linguistic and cultural diversity and a reorganisation of the states’ territorial borders took place in 1956. All the states and 2 of the 7 territories are represented at federal level in the Council of States – the Rajya Sabha, while the 5 remaining territories are governed directly by the federal government. 133 members of the Rajya Sabha are elected by the legislative authorities of the states and territories (i.e. by indirect suffrage) for 6 years and renewed for one third of the members every two years. There are also 12 non-elected members chosen for their expertise. Unlike the membership of the Senate in the American model, the number of representatives of each state in the Rajya Sabha is in proportion to its population in relation to that of the federation. Consequently the most populous State with more than 200 million inhabitants, (but less than 10% of the federal GNR), Uttar Pradesh holds 31 seats out of 233, while the second and third States by number of seats for comparison, Maharashtra and Tamil Nadu (which are much more powerful economically) hold 19 and 18 seats respectively. Within the federation, Uttar Pradesh, which taken alone is that 4th democracy in the world after the rest of India, the United States and Indonesia, occupies a unique position politically, and the results of its state legislative elections are scrutinized by political commentators to detect tendencies at federal level. It is also symbolically charged culturally, as it is crossed by the Ganges and has the sacred city of Varanasi on its territory as well as the Taj Mahal.

The direct representation of the Indian people is secured in the Council of the People, the Lok Sabha, with 543 members (plus 2 non-elected members) with a 5 year mandate (more than 85 members represent the state of Uttar Pradesh). Both chambers have equal legislative powers except in financial matters where the Lok Sabha has ultimate authority. In case of a stalemate situation, a global vote is organized with both chambers, in which case the Lok Sabha, with more than twice as many members as the upper chamber, generally predominates.

Following British parliamentary practice, the head of the political formation which, alone or in coalition, holds the majority of seats in the Lok Sabha occupies the post of Prime Minister and principally concentrates executive power. The symbolic role of the President of the Republic who is elected by indirect suffrage is to represent the permanence of the state.

The Indian Constitution provides in an exceptionally detailed manner for the institutional organisation of the federated states, reflecting a higher degree of central control than is usual in major federations. A Governor is appointed for each of the 28 states and 2 self-governing territories for a five-year mandate by the President of the Republic. The symbolic role of state Governor is a mirror image of that of the President of the Republic at federal level and the state legislative function is fulfilled by an elected chamber (Vidhan Sabha) before which the state Chief Minister is responsible as head of the executive. In 8 of the 28 states, the single legislative chamber is replaced by a double-chamber structure. Section 11 of the Constitution defines the relationship between the federal state and the federated entities in an equally detailed way. The respective competencies of the two levels are enumerated in three lists: the federal state’s exclusive competencies, those of the federated states and the concurrent competencies of the two.

In spite of a certain number of examples of successful careers among members of the lower castes, the great majority of their members remain seriously under-privileged, may be the object of segregation or violence, and benefit little from the advantages of economic growth. To assist their integration, the Republic has pursued the policy of the British Raj consisting of reserving quotas in the civil service and parliamentary administration for “scheduled castes and tribes”. The increase in these quotas in the 90’s provoked protests from the higher castes. The extension of this system to the private sector is being examined. Over the last few years the caste problem has become politicized and represents a specific and important feature of Indian democracy. Several political parties have built their programme around the defence of caste interests and built up a relationship of patronage with certain. The Chief Minister of Uttar Pradesh from 2007 to 2012 belonged to one of these parties and was from the caste of the untouchables.

Another major trend in Indian democracy has been the multiplication of political parties. This parallels a lessening domination of the Indian National Congress party whose prestige, due to its role in the anti-colonialist struggle and capacity to aggregate a very varied range of opinions, has seriously lost its lustre. Since the 1980s, various regional parties have taken on increasing importance, often demanding a higher degree of self-government for the state which they represent or asserting local identity. This tendency, which is unfavourable to federalism, makes governmental coalitions both at state and federal levels increasingly fragile and disparate. It should be added that local politics are increasingly undermined by a high level of corruption and growing degree of criminality. Nevertheless, despite the numerous difficulties which the world’s largest democracy encounters, its resistance and longevity can only be admired and these are certainly due to a significant degree to its federal structure.

South Africa

When the first constitution of South Africa was written in 1910, the 4 colonies which made up the country already had behind them a century of conflict between the two communities of European origin living there: the British, who had arrived at the beginning of the 19th century and who ended up after two wars (1880-1 and 1899-1902) by dominating the Boers or Afrikaners, who were farmers descended from Dutch colonists who had settled there in the 17th century. The latter were strongly attached to their rural life-style, which had been violently shaken up by the irruption of foreign prospectors after the discovery of diamonds (1867) and gold (1888). The subsequent mining and industrial development led to the recruitment of a black labour force living in workers’ estates prefiguring the townships of the following century. Among the British colonies, Canada and Australia had already at that time taken the federal route with the blessing of London, but this institutional structure was judged inappropriate to the unstable situation of the South African provinces. At that time, the white population represented 25% of the total, – the black communities (mainly Zulu and Xhosa tribes) 57%, with the remainder made up of mixed descendants of the black and white population, as well as an Indian population imported by the British as a labour force.

The 1910 constitution established a unitary state named Union of South Africa (1910-1961) with the status of a dominion (self-governing colony), with power in the hands of the white population. The situation then developed gradually from one of dissension between two white communities towards one centred on the more fundamental rift between white and non-white communities. The 1950s saw the passing of the apartheid legislation, which was a more extreme institutionalization of the existing “colour bar” and which settled the fate of individuals according to their race, by separating the communities in all spheres (residential, educational, leisure, transport, social and sexual relationships) from the cradle to the grave.

In 1961 the Verwoerd government took the growing domestic unrest as a pretext to leave the Commonwealth and establish the South African Republic (1961-1994). This was a parliamentary democracy with power in the hands of the white community, even if there existed, from 1983 on, a structure with three chambers representing respectively the white, Indian and mixed communities, of which only the first held legislative power at national level, while the black community was represented by a small number of white members of parliament who were supposed to defend its interests. In the middle of the 1980s, secret negotiations began between the government and the principal organisation representing the black population, the ANC. The end of apartheid was approaching, principally because the weight of international sanctions had become economically unbearable and the demographic importance of the black community made management of the country by the white minority (13% of the total population at that time) increasingly problematical. In spite of violent reactions from white conservative circles, in 1990 the government lifted the ban on the ANC, freed its representatives from prison, abolished the last apartheid legislation in 1991 and submitted the end of the system to referendum. By voting “yes” with a 68% majority, the white English and Afrikaans-speaking electorate recognized the failure of apartheid.

The party in power, the NP and the ANC then negotiated a democratic interim Constitution at the end of 1993 and mandated a constituent assembly to draft a new permanent constitution on the basis of 34 principles. During discussions on the interim constitution, the white minority tried to have a federal structure adopted, with the idea of setting up reserved political space within it, whereas the ANC wanted a structure as centralized as possible to strengthen national unity after so much dissension. Finally a pragmatic compromise was worked out including elements of provincial self-government. In the first multi-racial election in 1994, the ANC won with 63% of votes.

To draft the final constitution of 1996, the constituent assembly (which was in fact the new parliament) took the unprecedented step of consulting not only all political parties to which the successive drafts were submitted, but also the population, which was encouraged through regular television, radio and internet appeals to submit draft amendments. More than two million texts were received during this campaign of appropriation of the constitution by the nation. An international validation was added through numerous discussions with foreign legal sources. In an “Introductory Note”, the text announces that “(its) formulations…are an integration of the ideas of ordinary citizens, of civil society and political parties…(it) therefore represents the collective wisdom of the people of South Africa”.

Again due to the distrust by the ANC for anything which might break national unity, the word “federation” does not appear in the document, which nevertheless establishes a real, if limited, federal structure. The Constitutional Court which was put in place by the interim constitution and which was to validate respect in the final constitution of the 34 constitutional principles laid down, four of which concerned decentralization, refused to approve the first draft because it showed a “substantial insufficiency” in provincial powers. Even for the final version of the 1996 constitution, the court, although it did not refuse to validate it, considered that provincial authority remained minimal.

An exceptionally detailed and extensive chapter in the constitution covers citizens’ rights (articles 7 to 29). Eleven official languages are recognized including English and Afrikaans and nine indigenous languages, of which the two principal are Zulu and Xhosa. Concerning languages, the text specifies: “all the official languages must be held in the same esteem and be treated equitably” (article 4); “the national and provincial governments can use any official language for government purposes taking into account usage, practicality, cost, regional circumstances and a balance between the needs and preferences of the population as a whole or in the Province concerned, but the national government and each provincial government must use at least two official languages” (article 3a). Chapter 12 concerns “Traditional Leaders”, a delicate subject in that the democratic regime of the constitution explicitly extends to local government; the constitution stipulates: “a traditional authority that observes a system of customary law may function” but that “the institution, status and role of traditional leadership according to customary law are recognized subject to the constitution”. The Constitutional Court steered clear of making a pronouncement on the contradictions in this text. At the time of writing (August 2012) the Government had presented a controversial draft bill which would give greater force to customary law in rural societies, a bill opposed by activists for the rights of women and homosexuals, which are protected by the Constitution.

The institutional structure is a parliamentary system of the British type, as the Head of the Executive is elected by the lower chamber among its members and a motion of no confidence by the chamber leads to his resignation; what is more unusual is that he fulfils at the same time the role of Head of State with the title of President. The lower chamber (National Assembly) counts between 350 and 400 representatives, half of which are elected through a proportional voting system. The upper chamber (National Council of Provinces NCOP) is made up of 10 representatives from each of the 9 Provinces (i.e. without a system of weighting according to population). Out of the 10 representatives per province, 4 are members of the provincial government (as in the German Bundesrat), and the 6 remaining are designated permanently by this government, which may also dismiss them. Propositions are adopted with a simple majority (5 Provinces out of 9). The provincial legislative assemblies have a single chamber and choose their Prime Minister answerable to them. The constitution also imposes a democratic system in the town and city authorities, to replace the power of the traditional leadership in this area.

The centralised nature of the federal system becomes evident when the concurrent competencies (annex 4) and exclusive competencies (annex 5) of the provinces in the constitution are examined. The exclusive competencies concern a limited number of narrow areas of provincial organisation, whereas the list of concurrent competencies is both much longer and concerns much more significant spheres. Article 146 stipulates that a federal government law predominates in a concurrent matter in a number of situations formulated in broad terms, which permits control by the centre over the provinces.

The development has been noted of what has been called “executive federalism” encouraged by the parliamentary system: the executive representatives at federal and at provincial level communicate directly in meetings (the President with the 9 Prime Ministers, and the specialized ministers among themselves) leaving little room for NCOP debates. The preponderant weight of the ANC at present at federal level and in most of the Provinces facilitates this development. It should be added that the taxing power of the provinces is relatively narrow and to become effective necessitates legislation of the federal parliament, which is lacking at present. The provinces are therefore dependent almost entirely on transfers from the national level, whereas the town authorities (including 5 megapoles) are almost self-sufficient from a tax standpoint. This situation echoes the relatively pale role of regional movements in the political evolution towards democracy of this already rich and industrialized country, the impetus for which came principally from revolutionary forces based in the major urban centres and in exile.

Russia

Russian federalism presents an interesting example of the coexistence of community and territorial federalism, as well as a marked dissymmetry in the powers of the entities making up the federation, as a result of different contractual interpretations of the constitution. Thus for example, the Republic of Tatarstan is the only federated entity which maintains plenipotentiary representations abroad.

Although it was termed a “federation” from 1918 by the new Bolshevik state and given a federal constitution in 1936 then again in 1978, the Russian Federation, which was by far the largest of the socialist republics making up the USSR, did not correspond to a true federation by its institutional and political practices, in which authoritarian centralisation, based on a single party and central economic planning, dominated. Certain federated entities nevertheless enjoyed a limited cultural autonomy to allow for a complex ethnic reality.

The Grand Princes of Moscow, once they had dominated the other Russian principalities between the 14th and the 16th centuries, set about expanding first towards the south east, beginning with Kazan (1552) and Astrakan (1556), cities on the river Volga with Tatar populations. These populations were a mix between long-established Turkic-speaking people and members of the Turkic-speaking Mongol horde which invaded Russia in the 13th century. Driven by the search for furs, the expansion, at times organized by the state and at times by merchant families, then continued beyond the Urals into Siberia, reaching the Pacific in the 1640s. During the 19th century, the Russian Empire expanded south to include the states of the Caucasus.

The Russian Federation which inherited this past includes more than 100 minority nationalities representing about 18% of the population versus 82% for the Russian population. From the territorial standpoint, the principal concentrations of these minorities are situated in the northern Caucasus, the middle Volga and Siberia. The location of these three zones gives them strategic importance due to their geographical positions and natural resources. Under the Soviet Union, the aspiration to a certain cultural autonomy of the principal ethno-cultural concentrations of population gave rise to the definition of “national” entities (republics, regions or territories) even though the population which gave its name to the entity (for example the Bashkirs in the Republic of Bashkortostan) did not necessarily form a majority there. The rest of the territory was divided into purely administrative units.

Already in Soviet times, the centralization of the communist regime gave rise to regional claims and Gorbatchev, the last leader of the USSR in the 1980s, made the devolution of power to the regions one of the platforms of the perestroika programme. Eltsine, the future President of the Russian Federation, to thwart the soviet central authorities, proclaimed the sovereignty of Russia in June 1990 and invited the “national” entities to take “as much power as they could swallow”. In August 1990, several republics within the federation in their turn proclaimed their sovereignty. It was therefore hardly surprising that with the disappearance of the Soviet Union at the end of 1991 and the disorganization at the centre which resulted from it, the Russian Federation was subjected to extreme internal strain. To attempt to stabilize the situation and maintain the cohesion of the country pending the drafting of a constitution, Eltsine in 1992 had the federated entities sign a Federal Treaty, which in fact had several versions and paved the way to dissymmetric federalism, as the entities, according to the version which they signed, did not enjoy the same degree of self-government. It was more particularly the “national” entities, and especially the 21 republics which had made the most disruptive claims, which were granted a higher degree of self-government, even if the federal authority reserved wide competencies for itself. Two republics, Tatarstan (in the Volga region) and Chechnya (in the north Caucasus) refused to sign the treaty. In view of the preferential treatment for the republics, certain regions initiated internal procedures to give themselves this status. The opposition towards the centre reached its peak at the time (Oct 1993) of the clash in Moscow between Eltsine and the parliament which had been elected during the Soviet period.

When he had solved the parliamentary crisis, Eltsine obtained approval by referendum in Dec 1993 for a constitution which in fact went back on some of the competencies granted to the republics by the Federal Treaty, re-established with a certain ambiguity the situation under the Soviet Union where the entities of the Russian Federation had the same status, and reinforced the competencies of the federal executive. However, the presidential administration, before drafting the legislation enforcing the Constitution, in order to come to a working agreement with the republics which had not signed the 1992 Federal Treaty and to weaken the forces opposed to the centre, signed first a bilateral agreement with Tatarstan, and then did the same with many other federated entities. This had the effect of establishing multiple interpretations of the constitution and reinforcing federal dissymmetry. These agreements were the outcome of haggling based frequently on the relations between local leaders and those in the Kremlin or local business circles and central oligarchies. Whereas it was thus possible to find a delicate compromise with Tatarstan, the relationship between the Republic of Chechnya and the Federation degenerated into armed conflict.

The 1993 version of the constitution identifies 89 federated entities, a figure since reduced to 83 by a process of merger encouraged by the federal authorities to simplify administration. In addition, the entities have since been grouped into 8 federal districts. Out of the total of 83 entities, 26 (of which 21 republics) are the successors of the “national” entities of the Soviet system and correspond to community federalism by their particular characteristic of cultural self-government. Article 5.1 of the constitution states that “all constitutive entities have equal rights” but 5.2 entertains a certain ambiguity by specifying “the Republics have their Constitutions and their legislation” whereas “ the other constitutive entities have their status and their legislation”. In addition, only the republics have the right to institute their local language alongside Russian as an official language. Article 11 maintains the ambiguity by stipulating that: “the delimitation of the spheres of competency and attributions between the Federal authorities and the authorities of the constitutive entities is made by the Constitution, the Federal Treaty and other agreements concerning the delimitation of these spheres”. Article 15 prescribes that legislation passed by the law-making institutions of the constitutive entities must not contravene the principles of the Constitution. However the constitutive entities, because the central authorities were frequently inoperative, acted unilaterally in important areas of concurrent competencies and so legislated locally in contradiction with the Constitution. The Constitutional Court has taken a certain number of decisions aimed at rectifying this situation.

The constitution establishes a system of secular republican government (article 11) with ideological pluralism (article 13), which combines aspects of a parliamentary and a presidential regime. The President of the Federation, elected by universal franchise for 4 years is head of state but may also play a legislative role since he can formulate decrees with force of law; the latter must not however go against existing laws and may be neutralized by legislation passed by Parliament.

The President chooses the Prime Minister (named President of the Government) and cabinet ministers but these must nevertheless retain the confidence of parliament. The government exerts the executive function. The lower chamber (Duma) consists of 450 members elected for 4 years, half through a system of proportional representation and half through a system of majority vote in each electoral district. The upper chamber (Council of the Federation) was originally composed of 2 representatives per federated entity, the head of the executive and the chairman of the legislative authority of the entity, thus guaranteeing a strong federal representation. Since a reform by Vladimir Putin, the 2 representatives occupy this position full-time; this reform incited the federated entities to designate as their representatives persons with political relations in Moscow and in business circles, with the hope of using their influence to obtain the support of the federal authorities more easily. The fact that these representatives generally do not have a direct link with the federated entity which they represent weakens the federal character of the Council. The Council must examine federal laws adopted by the Duma concerning the federal budget, federal taxes, financial regulation, ratification and denunciation of treaties, laws concerning the status and defence of State borders and war and peace. A majority of two thirds in the Duma is required to prevail against the Council in case of disagreement (article 105). Federal legislation rejected by the President but confirmed after re-examination by both chambers, each with a two-thirds majority, must be promulgated by the President (article 107).

During his first two presidential mandates (2000-2008), Vladimir Putin implemented policies leading to a very pronounced recentralisation of the Federation through various means, with a view to correcting the decentralisation of the 1990s. Among the most notable of these was the 2004 legislation which allowed the President to choose the Governors of federated entities from a list submitted by the legislative majority in each entity, when this majority position was held in 81 out of the 83 entities by the President’s party United Russia. To reduce the impression of an excessive concentration of power in the hands of this party at all echelons of the Federation, which was certainly a factor in the awakening of civil society at the time of 2012 presidential election, this particular measure was replaced by legislation of 2012 reinstating election of Governors by vote. However, even if the definition of human and citizen’s rights, which takes up 47 articles (17 to 64) out of the total of 137 making up the Constitution, does correspond to the norms of modern democratic constitutional drafting, one may question its significance at present in view of the strict control maintained by the federal authorities on the media and civil society.

FUNCTIONING

The heart of the federal structure is the double-chamber legislative system, with a lower chamber bringing together the representatives of the people of the federation globally, thus ensuring national cohesion, and an upper chamber representing the governments of the federated states, where the number of seats allotted may or may not be weighted according to the population of each state. Around this central political nucleus, the federation can adapt to all types of regimes, whether presidential (as in the United States, the federations of Central and South America, Nigeria), parliamentary (the federations born of the former British colonies, Germany) and even an elective monarchy (as in Malaysia).

Once the federation has been established, the federal government will attempt to promote economic development, by encouraging legislative harmonisation in the federated states to simplify commerce and reduce legislative and administrative barriers to the free circulation of persons, goods and capital. The free circulation of persons between federated states proves easier to achieve in the federations where the states have a similar or common culture (United States and Germany), than in multicultural federations such as India where the federal government must try to develop respect and appreciation for diversity which is the basis of the federation, while at the same time promoting factors of unity and cohesion.

The economic history of the 19th and 20th centuries has had considerable influence on the functioning of federations. The growth in the dimension of industrial units and the need to access larger markets have necessitated legislative harmonisation beyond the borders of the federated states and an increase in the role of the federal government. The economic crises, the Second World War and subsequent reconstruction have underlined the importance of the role of the federal state in influencing the level of economic activity. Keynesian fiscal policy has also brought the part played by federal governments to the fore.

In federalism, governmental responsibilities are distributed vertically by the constitution between two levels of government. Each level must therefore have financial resources to fulfil them. On the level of the federated states, a horizontal budgetary separation maintains the diversity essential to expression and individuality of the peoples of the different states, without which the federation could not survive. In practice, a perfect fit between revenue and expenses is never found. A certain degree of interdependence is an essential characteristic of federalism. By far the most frequent situation is that in which the federal state has a budgetary surplus, while the federated states are globally in deficit, with the poorest states showing the largest deficits proportionally. The two imbalances, vertical and horizontal, require budgetary integration by means of redistributive mechanisms. However, even if the federal state almost always has a surplus, it controls only part of the global resources and its political and budgetary orientations may be opposed by federated states governed by parties which have chosen different public policies. The sharing of resources may thus give rise to vertical conflicts. The federal government may therefore need to exert influence on the budgetary policies of federated states in the national interest. Likewise horizontally, economic competition exists between federated states, which attempt to expand by attracting factors of development (capital, talent). Economic inequality between federated states may result in too great a disparity between services and benefits to citizens. However, even if tax harmonisation may be desired by economic players with interstate interests, at the same time, state residents may prefer local diversity. At federal level, policies enacted must allow for the fact that free trade is more favourable to economically strong states and that the social contract requires the establishment of adjustment mechanisms to compensate less developed areas for the progressive loss of their industry. These mechanisms themselves and their supposed neutrality may give rise to conflicts.

CONCLUSION

What motivates political entities to co-exist as a federation? It is possible to identify several motivations, which may come into play either successively or in parallel :

To protect cultural or linguistic particularisms, or as Napoleon put it to the Swiss delegates: “an extreme difference in customs” from dilution in a unitary whole. India, South Africa and Russia are illustrations of this aspect of federalism.
To secure diplomatic or economic influence, or defensive strength by belonging to a larger unit, without which it would not be possible to exert the same weight. In the examples of the British colonies of North America revolting against the power of London or the three German-speaking Swiss cantons initiating their union, this was the operative motivation among confederated entities, which at the time had great cultural similarities.
“To heal the divisions of the past” is one motivation quoted in the Preamble to the South African Constitution and which may also apply to the United States after the Civil War or Switzerland after the Sunderbund War.
To ensure the continuity of the existing political cohesion, under threat due to the disappearance of a colonial regime (India), totalitarian rule (Russia) or to disaffection between regional entities (Belgium).

It must be added that the political cohesion in a federation supposes that the federated entities, beyond their interested motives and their differences, feel sufficient affinity to support federal institutions and to be the basis for a national sentiment. This affinity may come from similar ethnic roots, an historical path taken together, a shared geographical context, ordeals undergone together, but may also be partially “manufactured” through the unifying influence of the federal state through its educational programs and its communications policy. A national sentiment may also be anchored partly in a political myth around an event or a federating text, as is the case in the United States with the constitution of 1787, or in Switzerland with the pact of 1291. The constituent assembly in South Africa consciously attempted to create such a myth by its communications policy at the time of the drafting of the 1996 Constitution.

Finally, to support this cohesion, the federal institutions must bestow strong legitimacy on the participation of the two major stakeholders of federalism, the people of the federation and the federated entities. Consequently, in all the major federations, the federal executive is elected either by the people through universal suffrage, or by indirect suffrage by the lower chamber or the whole parliament of the federation. The legislative chambers are elected either by universal suffrage or, in the case of the upper chamber in Germany or in Russia in the original institutional structure, by direct delegation of members of regional governments, themselves elected regionally. In Swiss federalism, direct democracy written into the Constitution introduces an interesting corrective element to representational democracy.

And what about Europe?

It is of course possible to find arguments to brush aside the lessons to be learnt from the examples above. Admittedly, it is one thing to contrive a union in an elan of revolutionary emergency or after a major shock, to bring entities which are young politically or inexperienced in foreign affairs to federate, but something different to create solidarity in a more complex environment between the original nation-states as jealous of their prerogatives as old bachelors. It is also true that we as Europeans are powerless, hypnotised as we are by our situation as we see it from the inside. The examples above may at least allow us to take a more detached view of the federal phenomenon and to understand how solidarity has crystallized elsewhere.


Principal sources:
-historical data: government sites and Wikipedia
-general information on federalism: Forum of Federations and Wikipedia “federalism”
-constitutional comments (esp. Russia and South Africa): Forum of Federations and “La Nouvelle Russie” by Jean Radvanyi
-fiscal federalism: site: “ashta.free.fr”
-texts of constitutions: government sites and site of Perpignan University “digithèqueMJP”
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