subnational constitutional governance

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Subnational Constitutional

Governance

1618 March 1999St Georges Hotel, Rietvlei Dam

Pretoria


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Introduction 5

Welcoming Remarks 7Dr Michael Lange,Resident Representative, Konrad Adenauer Foundation Johannesburg, South Afr ica

Provinces, States,Lnderand Cantons: Content and Variations Among 11Subnational Constitutions of the WorldProfessor Ronald Watts,Professor Emer itus of Poli tical Studies; Fellow of the Insti tute ofIntergovernmental Relations, Queen s Uni versity, Ontar io, Canada

The Relationship Between National and Subnational Constitutions 23Professor Cheryl Saunders,Centre for Comparative Consti tuti onal Studies, Faculty of Law,University of Melbourne, Australi a

Development of Concurrent Legislation a New South African Perspective 37Advocate Dirk Brand,Di rector: Legal Services, Western Cape Provincial Government,South Afr ica

Cooperative Government, Devolution of Powers and Subsidiarity: 45the South African PerspectiveProfessor Gretchen Carpenter, Professor of Consti tuti onal Law, University of South Afri ca

The Other Sphere of Government: South African Provincial and 55Local Structures in PracticeMr Mathews Phosa,Premier, Mpumalanga Province, South Afr ica

Relations Between Subnational and Local Governments, Structured by 59

Subnational ConstitutionsProfessor Jrn Ipsen,Di rector: Institute for Local Government Law,Uni versity of Osnabrck, Germany

Table of Contents

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The New Judicial Federalism in the United States: Expansive State 67Constitutional Rights DecisionsProfessor Robert Williams,Rutgers University, Camden, New Jersey, Uni ted States

Controlling Competency Conflicts: Subnational Constitutions, National Constitutions 77and the Allocation of AuthorityProfessor Alan Tarr, Di rector : Centre for State Consti tuti onal Studies, Rutgers University, Camden,New Jersey, United States

Where Theres Political Will, There Might Be a Way: Subnational Constitutions and the 87Birth of Democracy in South AfricaProfessor Ralph Lawrence,Professor of Government and Publi c Policy; Director : Centre forGovernment and Policy Studies, University of Natal , Pietermari tzburg, South Afr ica

Programme 95

Participants List 97

Seminar Reports 100

Occasional Paper Series 101

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The international conference on Subnational Consti tutional Governance held from 16 to 18 March1999 at St Georges Hotel, Rietvlei Dam, Pretoria was organised and sponsored by Rutgers Univer-sity, the Konrad Adenauer Foundation Johannesburg office and the University of South Africas(Unisas) VerLoren van Themaat Centre for Public Law Studies. The conference was originally thebrainchild of Professors Robert Williams and Alan Tarr of Rutgers University, New Jersey, UnitedStates and Dr Bertus de Villiers of the Human Sciences Research Council (HSRC), South Africa. AfterDr De Villiers left the HSRC for the National Parks Board, the South African share in the venture wasinherited by Unisas Department of Constitutional and Public International Law.

Some may ask why a conference on subnational constitutional governance, particularly in this coun-try since the South African Constitution, 1996, makes it clear that there are three spheres of government(national, provincial and local) and not tiers or levels. In the South African context, therefore, subna-tional may well be seen as a misnomer if it signifies subordination of regional authorities to the centralauthority. If we interpret subnational governance in South Africa as a reference to authorities that areelements of a greater whole, rather than as less important or subordinate, the relevance of the experi-ence of the wide range of different systems represented at the conference becomes more apparent.

It was decided not to overload the programme with formal presentations, leaving instead more room forinformal discussion. This proved to be a sound choice; one that was vindicated by the high level of par-ticipation by the 60 delegates. South African participants were drawn largely from government andrelated areas, with a fair sprinkling of academics. The conference revealed that issues of pure or tech-nical constitutional law remain significant despite popular preoccupation with fundamental rights

issues. It was believed that much still needs to be explored, especially in the field of local government.

Rutgers University must be thanked for its participation as organisers, sponsors and participants; in par-ticular, the enthusiasm of Professor Robert Williams, who was the driving force behind the conferenceand who was largely responsible for procuring the services of the foreign speakers, should be men-tioned with appreciation, as must the contribution of Professor Alan Tarr. Valued assistance was ren-dered by Thea van Doorne of the VerLoren van Themaat Centre, Moses Mdumbe of UnisasDepartment of Constitutional Law and the staff at the Konrad Adenauer Foundation office, especiallyDr Michael Lange and Marlize van den Berg.

Gretchen Carpenter

Professor of Constitutional LawUni versity of South Afri ca

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Introduction


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INTRODUCTIONThis is the first time that the Konrad AdenauerFoundation (KAF) has organised a conferencewith the VerLoren van Themaat Centre forPublic Law Studies at the University of SouthAfrica (Unisa) and we are delighted to have theopportunity to cooperate with this institute inintroducing current constitutional issues to awider audience of academics in general, andlawyers, advocates and law students in particu-lar.

1. BACKGROUND TO KAFFor those wondering what type of institutionKAF is and why it has sponsored this confer-ence, allow me to sketch a brief background tothe German political foundations and to outlinesome of the reasoning behind KAFs involve-ment in South Africa.The five political foundations are a unique

feature of todays democratic culture inGermany. The move behind their creation,which dates back to the 1960s, was the expec-

tation that political or civic education wouldhelp develop and consolidate democracy inpost-war Germany.

Both in Germany and abroad, the founda-tions seek to develop and encourage people toplay an active part in the political and sociallives of their communities. They cooperatewith local organisations and societal groupswhich, while drawing on different value sys-tems and political concepts, are committed topromoting the development of democracy and

pluralism in their respective societies.By engaging in a variety of activities, the

foundations assist in constructing a legal order

which supports human rights, an independentjudiciary and the rights of minorities. They alsoassist economic development and help toimplement social justice and the rule of law.

KAF is closely affiliated to former GermanChancellor Helmut Kohls Christian Demo-cratic Union Party. It proudly bears the name ofthe first chancellor of post-war Germany andacts in the spirit of this remarkable Germanstatesman.

KAF is represented in many countriesthroughout the world and in this way activelyassumes a share of responsibility for shapinginternational relations, while conveying mod-ern German political culture to the rest of theworld. International cooperation is an impor-tant part of KAFs work and accounts for noless than half of the general budget of someDM220 million.

2. KAF IN SOUTH AFRICAKAF runs a number of wide-ranging pro-grammes in South Africa. It cooperates not

only with political parties and their respectivethink-tanks but with reputable education andresearch institutions, as you will note fromtodays event.

Since the beginning of its involvement inSouth Africa, KAF has been actively involvedin projects dealing with constitutional develop-ment at federal and provincial levels, policyaspects of local government, and the training oflocal government officials and councillors.

3. SUPPORTING FEDERALISMGermany is a federal state and KAF believesthat the new South Africa could gain much

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Welcoming Remarks

Michael Lange


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from Germanys experience with this particularconcept of governance. An important task ofthe Foundation is therefore to enhance coopera-tion between the constitutional courts of thesetwo countries.

As far back as 1995, KAF hosted a confer-ence in Bonn where the issue of constitution-making principles was tackled by various con-stitutional experts from both Germany andSouth Africa.

South Africa as a result of well-intentionedadvice has developed a rather unique kind offederal system that has far fewer provincialpowers than exist in Germany. In the run-up toSouth Africas national elections, we see cer-tain political parties (such as the InkathaFreedom Party) asking for a more federal stateand other parties (such as the Pan AfricanCongress and Azapo) asking for a more cen-tralised system of government. Since the SouthAfrican Constitution seems to be not yet cast instone, there is room for more advice and debateon these contentious issues.

Finding the required number of qualifiedpeople needed to run a federal system of gover-nance with its various tiers of government isno easy task, especially considering the prevail-ing circumstances in South Africa. Never-theless, KAF believes that only a federal sys-tem allows different communities to developand contribute in a meaningful way to the goodof the nation. KAF has therefore been provid-ing expertise from Germany in all matters con-cerning cooperative governance and has facili-tated training for a number of different groupsof government officials.

All this, I believe, clearly shows the impor-tance KAF gives to constitutional developmentin South Africa.

4. OTHER KAF ACTIVITIES IN SOUTH AFRICAApart from these important programmes, KAFassists provincial governments in their attemptsto integrate their different local administrationsand provides support for small- and medium-sized enterprises and self-help groups with spe-cial emphasis in rural areas.

In each case, the Foundation utilises the toolsavailable to it to further its objectives. Thisincludes international and national seminars

such as this one; short-term expertise; studytours to Germany; research programmes; andwhere appropriate, publications through KAFs

series of seminar reports and occasional papers.Many of the Johannesburg offices publicationshave tackled constitutional issues, as can benoted by the titles of some of these publica-tions:

Implementing Federali sm in the FinalConsti tuti on of South Afri ca The Final Constitution of South Africa:Local Government Provisions and their

Implications

A Lay Person s Guide to the 1996 SouthAfri can Consti tution

Future Challenges for Local Government inthe 21st Century

LocalProvincial Government Relations The Consti tuti onal Basis of LocalGovernment

Consti tuti on and Law

5. TRANSFORMATION AND ITS CHALLENGESSome people argue that apartheid was SouthAfricas Berlin Wall. It was the great divider,artificially separating people who, in the finalanalysis, were bound to share the same destiny.

When apartheid fell as part of a chain reac-tion set off not least by events in Germany, cul-minating in the fall of the Berlin Wall SouthAfrica turned away from segregation and con-flict and turned towards democratic together-ness and cooperation.

South Africa has only recently set out on amost difficult path towards democracy andprosperity for all its people. The transformationof our two countries has led and will for sometime to come lead all of us through difficultterritory. People from all sectors of society findit difficult to adapt to new conditions. Pre-viously entrenched and accepted rules havechanged dramatically and many have complete-

ly disappeared.South Africa is considered to be a legally

consolidated democracy in which the develop-ment of a constitutional, pluralistic state ruledby the new law of the land appears to be irre-versible. But there are still challenges to befaced.

6. BUILDING AND MAINTAINING DEMOCRACYMany say that the rule of law has all but disap-peared. Some professional observers have

warned that the crime situation is moving thecountry dangerously close to anarchy: if wedefine tyranny as the public order without


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freedom and anarchy as freedom withoutpublic order, we are witnessing in SouthAfrica today the former being replaced by thelatter. I cannot believe that South Africans havestruggled against the tyranny of apartheid only

to have to live with the anarchy of crime.I believe that by transforming white minorityrule to black majority government, only thefoundations of a peaceful democratic societyhave been laid. Making the new South Africa awinning nation will depend: on the willingness of those who were

wronged under the old regime to put the goodof the so-called Rainbow Nation above theirdesire for retribution (reconciliation)

on the acceptance that the tyranny ofapartheid should not be replaced by the anar-chy of crime.

Building and maintaining a strong and enduringdemocracy on these foundations will further-more depend on a continuing commitment byall segments of South Africas diverse popula-tion to reconciliation and far-reaching econom-ic and social transformation. KAF is willing tocontribute to this process.

CONCLUSIONThis conference is designed to stimulate debateon the role of concurrent legislation and on thedifficult question of how far a provincial consti-tution might deviate from the framework set by

the national constitution. It is also meant toexamine the extent to which a provincial consti-tution may or may not give expression to a par-ticular view regarding the rights and responsi-bilities of the citizens in question.

Germanys federal approach to governancesets a good example in favour of provincialautonomy, especially regarding the definitionof rights and responsibilities in areas of particu-lar provincial concern, such as cultural affairs,education and taxation.

I am grateful to Professor Ipsen of OsnabrckUniversity for accepting our invitation to pre-sent a paper. His paper deals with the importantrelations between subnational and local govern-ments in Germany. I am sure that the extent ofprovincial autonomy which exists in Germanywill surprise some of our South African guests.

I hope you find this conference enjoyable andworthwhile.


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INTRODUCTIONI wish to make it clear right from the outset thatI am approaching this topic as a political scien-tist rather than as a constitutional lawyer, andtherefore my focus will be not on the legalcharacteristics of subnational constitutions orthe classification of them as legal documents,but rather on the conditions giving rise to dif-ferent forms of subnational governments andthe consequent relevance of the form and con-tent of their constitutions. As the first paper ofthe conference, it is perhaps not inappropriateto set the broader scene and to raise issueswhich will in subsequent papers and sessionsbe pursued in more depth.

A feature of the contemporary world is theconditions that have given rise to the prolifera-tion of a variety of systems of multilevel gover-nance. Throughout the world contemporarydevelopments in transport, social communica-tions, technology and industrial organisationhave produced pressures not only for largerstates but also for smaller ones. Thus, there

have developed two powerful, thoroughlyinterdependent, yet distinct and often actuallyopposed political motives: the desire to buildeffective and dynamic forms of integratednational and supranational organisations, andthe search for distinctive regional and localidentity. The former is generated by the goalsand values shared by most Western and non-Western societies today: a desire for progress, arising standard of living, social justice andinfluence in the world arena. It is further

fuelled by a growing awareness of worldwideinterdependence in an era whose advancedtechnology has made both mass destruction and

mass construction possible. The latter thedesire for distinctive identity arises from thedesire for smaller self-governing political units,more responsive and accountable to the indi-vidual citizen, and from the desire to giveexpression to the primary group attachmentswhich provide the basis for a communityssense of identity and yearning for self-determi-nation. These include linguistic and culturalties, religious connections, historical traditionsand social practices. Thus, the second half ofthe 20th century has seen a tension betweenthese two parallel forces producing contradicto-ry trends in the direction of both integrationand disintegration.1

Given these simultaneous pressures for largerpolitical units capable of fostering economicdevelopment and improved security, and forsmaller political units more sensitive andaccountable to their electorates and capable ofexpressing local distinctiveness, it is not sur-prising that multilevel political regimes such asfederations and constitutionally decentralised

unitary systems should have had such wide-spread appeal in the contemporary world. Suchmultilevel regimes provide a technique of polit-ical organisation that permits action by a sharedgovernment for certain common purposes,while allowing autonomous action by smallerregional or local units of government for pur-poses that relate to particular regional interestsand concerns. Consequently, nearly two billionpeople in the world currently live in some 24countries that claim or can be considered to be

federal.2 A similar number live in 15 othercountries with some form of multilevel regimeinvolving constitutional decentralisation.3 In

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Provinces, States,Lnderand Cantons:Content and Variations Among

Subnational Constitutions of the World

Ronald Watts


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addition, some 20 relatively small political enti-ties are linked to substantially larger politicalunits in a federacy or associated state relation-ship.4 At the same time, there have grown avariety of supranational political organisations

such as the European Union (essentially a con-federation incorporating some elements moretypical of a federation), and other looser supra-national entities such as the North AmericanFree Trade Agreement (Nafta), the Associationof South East Asian Nations (ASEAN), theSouth Asian Association for Regional Coopera-tion (SAARC), the Caribbean Community(Caricom), the Nordic Council, the NorthAtlantic Treaty Organisation (Nato), and theCommonwealth of Independent States (CIS).

This suggests that multilevel governmentalregimes by reconciling the need for largescale organisation with the recognition and pro-tection of ethnic, linguistic or historicallyderived diversity through self-governing con-stituent units have had the advantage ofallowing a closer institutional approximation tothe multinational and diverse reality of the con-temporary world.

In the past decade a major factor in the pres-sure for multilevel regimes of governance hasbeen the recognition that an increasingly globaleconomy has unleashed powerful economic andpolitical forces further strengthening both inter-national and local pressures at the expense ofthe traditional nation-state. My colleague atQueens University, Tom Courchene, haslabelled this trend glocalisation.5 Globalcommunications and consumership have beenawakening desires in the smallest and mostremote villages around the world for access tothe global marketplace of goods and services.As a result, national governments are faced

increasingly with the desires of their citizens tobe both global consumers and local citizens.

Thus, the nation-state is proving both too smalland too large to serve by itself the full desiresof its citizens. Furthermore, changes in technol-ogy are generating new models of industrialorganisation with decentralised and flattenedhierarchies and involving noncentralised inter-active networks, thereby influencing the atti-tudes of people in favour of more noncen-tralised forms of political organisation. Another

recent factor has been the collapse of the totali-tarian regimes in Eastern Europe and the formerSoviet Union: these developments have under-

mined the appeal of transformative ideologiesand have exposed the corruption, poverty andinefficiency characteristic of massive authori-tarian centralisation.

All these factors have contributed to the

heightened interest in forms of multitiered andmultisphered political regimes as a method oforganising and distributing political powers in away that will enable the common needs of peo-ple to be achieved while accommodating thediversity of their circumstances and prefer-ences. Some 40 years ago Pennock suggestedthat citizen preferences might be maximised (orcitizen frustrations reduced) by multiple levelsof political organisation, each operating at ascale for performing most effectively its partic-ular functions as long as these benefits were notoffset by the costs of increased complexity.6

Twenty-six years ago Martin Landau arguedthat despite the inherent complexities in multi-level regimes of government, the redundancieswithin federal systems provide fail-safe mecha-nisms and multiple safety valves enabling indi-vidual subsystems within the multilevel regimeto respond to needs when others fail to, thuscontributing to a longer-run basic effectivenessand survival of the polity.7The continued pro-liferation of multilevel political regimes in thepast half century suggests that they were bothright in pointing to the valuable role of gen-uinely autonomous subnational governmentswithin larger polities. This international trend tomultisphered governance to use the SouthAfrican terminology is reflected in theemphasis placed in the current South AfricanConstitution upon a system of cooperativegovernment.8 Indeed, except for a large num-ber of relatively small or island states, cen-tralised unitary government has increasingly

ceased to be the norm as nation-builders havecome to recognise that overcentralisation canlead to anaemia at the extremities and apoplexyat the centre.

1. THE VARIETY OF CONTEXTS FORSUBNATIONAL GOVERNMENTS

The form and character of subnational govern-ments, and hence of their constitutions, variesthroughout the world because of the variety ofthe contexts within which they have been estab-

lished and operate.An important factor is the historical pattern

of their establishment. Many subnational gov-


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ernments have been created as a result of devo-lution within a pre-existing larger politicalunion. In such circumstances, the constitutionsof the subnational governments most usuallylabelled provinces rather than states and their

jurisdiction and the major features of their con-stitutions have usually been embodied withinthe constitution of the overarching union or fed-eration. In the case of decentralised unitary sys-tems, subnational constitutions have sometimessimply been set out in statutes of the nationalgovernment. Within such broadly devolutionaryframeworks, the provinces/states have, never-theless, usually been empowered to determinemore detailed arrangements relating to theirown constitutions. Examples of this patternfound in federations and quasi-federationsinclude Belgium, Germany, India, Pakistan,Nigeria and Spain. In the case of the SouthAfrican Constitution, 1996, the broad frame-work for provincial governments is set out inChapter 7, but provinces are permitted to estab-lish their own constitutions (section 142).

These must, however, comply with certain stip-ulations in the national constitution and be socertified by the Constitutional Court.

Where the overarching union, federation orconfederation has been created instead by theaggregation of previously separate politicalentities, the scope of jurisdiction of the con-stituent units has usually been set out in theuniting constitution and it may even include afew minimum requirements for member stateconstitutions in the interests of compatibility,but the member states have normally been leftto articulate their own constitutions. Such casesare relatively rare among decentralised unitarysystems, but examples among aggregative fed-eral and confederal systems are the United

States (US), Switzerland, Australia, Malaysia,most of the Latin American federations (Argen-tina, Brazil, Mexico and Venezuela patternedtheir federal constitutions closely on theAmerican model) and the confederal EuropeanUnion. It should be noted that the establishmentof some unions and federations has involvedboth processes in a combination of both devo-lution and aggregation, but in such cases thebasic constitutions of the subnational govern-ments have usually been contained within the

federal constitutions. Significant examples areCanada and India.

Another important factor has been the rela-

tive intensity of the pressures for the autonomyof the subnational governments. The signifi-cance of historical, geographic, economic, lin-guistic, religious, cultural or social factors, andthe extent to which these may be cumulatively

reinforcing or cross-cutting has affected thestrength of the desires to ensure the security oftheir distinct identities and interests by estab-lishing autonomous subnational governmentswith their own constitutions.9 Such pressureshave been most intent in cases where con-stituent governments within a union or federa-tion have come to represent diversities with theforce of national communities, as for examplein the cases of Quebec in Canada and of theBasques and Catalonians in Spain.

An important factor affecting the character ofsubnational governments, and with importantimplications for their constitutions, is thedegree to which the territory of the subnationalgovernment coincides with the territorial con-centration of historical, economic, linguistic,religious, cultural or social interests. Where theboundaries of subnational governments coin-cide only imperfectly with the territorial con-centration of interests, the usual result has beenthe creation of a situation of minorities withinminorities, leading to the need to incorporatewithin the constitution of the subnational gov-ernments safeguards for intra-provincialminorities (discussed further in section 4). Ofcourse, it is virtually impossible to draw the ter-ritorial boundaries for subnational governmentsso that there are no intra-provincial minorities,but in some unions and federations the problemhas been much more serious than in others. Insome it has even led to the redrawing of theboundaries for some subnational units in orderto make them coincide more fully with social

and political realities. Significant exampleshave been the reorganisation of Indian statesalong linguistic lines in 1956 with furtheradjustments in the following years and the pro-gressive division of the constituent units ofNigeria from the original three regions in 1960to four in 1963, then 12, then 19, then 21, then30 and now 36.

Another factor sometimes contributing to theredrawing of provincial boundaries has beenthe desire to avoid excessive disparities in the

relative sizes (area and population) and wealthof subnational governments. Such disparitiescan be a source of inter-regional resentment


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both in terms of relative influence in nationalpolitics and in terms of relative administrativecapacity. These were factors which led to theredrawing of the boundaries of theLnderwithin Germany in the early years of the West

German Federation. The reunification ofGermany raised the same issues which continueto be the focus of much discussion. The issue ofrelative balance among subnational units wasalso an important factor in the progressive mul-tiplication of states in Nigeria, referred toabove.The factors referred to so far all presume that

the subnational governments represent territori-al groups. That is, of course, the normal pattern.But is it necessarily the only one? Could non-territorial subnational governments be possible.Elkins has explored this possibility, focusing ona range of non-territorial organisations tounblock thinking tied to a territorial conceptionof the state.10The Belgian example in whichthree of the six subnational units of governmentare non-territorial Communities appears to bean interesting innovation in this respect,although it is still too early to judge its long-runefficacy. Within Canada too, there have beenpressures for non-territorial units of govern-ment to provide those aboriginal peoples notconcentrated on reserves with some form ofself-government. The full possibilities and lim-its of non-territorial subnational governments,however, remain to be developed.

In the introduction, attention was drawn tothe trend towards multitiered forms of gover-nance in the contemporary world. Traditionallythe analysis of federations has centred on rela-tions between federal and provincial/state gov-ernments. But increasingly attention has beendrawn to the constitutional status of another

form of subnational government, local govern-ments, as well as to supranational forms of gov-ernment. Until recently, although local govern-ments have in fact played a significant role inthe political dynamics of many unions and fed-erations, particularly in the US and Switzer-land, the determination of the scope, powersand autonomy of local governments has usuallybeen left to the intermediate level of subnation-al governments, i.e., the provinces or states. Inrecent years, however, there have been efforts

in some unions and federations notablyGermany, India and South Africa to recogniseformally in the constitution of the union or fed-

eration the position, powers, and in someinstances the basic structure of local govern-ments as autonomous political entities.Supranational political organisations have alsobecome more significant. The multilevel situa-

tion created by the membership of at least fourfederations within the European Union Austria, Belgian, Germany and Spain has hada major impact upon the internal relationshipsbetween national and subnational governmentswithin each of these federations. This has occa-sioned considerable literature, for instance, inGermany.11 It has also led to the establishmentwithin the European Union of a forum for sub-national governments both state and local inthe Committee of Regions.12 Even the muchlooser arrangement of Nafta linking the threefederations of the US, Canada and Mexico hashad implications for the roles and jurisdictionsof their states and provinces.

2. THE VARIETY OF SUBNATIONAL GOVERNMENTAUTONOMY REGIMESAs a result of the conditions affecting subna-tional governments in different countries, thereis in fact in the world today a great variety ofautonomy arrangements for subnational gov-ernments. I use the term autonomy arrange-ment advisedly. The notion of autonomyrelates to more than simply decentralisation, asElazar and Osaghae have noted.13There areforms of decentralisation where hierarchicalcontrols or direction may still leave the autono-my of subnational governments relativelyrestricted. What distinguishes autonomy fromdecentralisation is the exercise of final respon-sibility on a range of matters by the subnationalgovernments. An important context for the roleof subnational governments then is not just the

scope of jurisdiction that is decentralised tothem, but the degree of autonomy they have inexercising that jurisdiction.

One category of political regime in which theautonomy of the constituent subnational gov-ernments is a distinguishing feature is federa-tions. What distinguishes federations fromdecentralised unitary systems is that in the com-bination of shared rule through common institu-tions for certain specified matters and self-rulethrough subnational governments for other mat-

ters, the relationship in a federation alwaysinvolves a degree of constitutionally guaranteedautonomy, or final responsibility, over some


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specified matters for each order of government.In a federation, each order of governmentderives its authority from the constitution ratherthan another order of government. A corollaryis that each order of government acts directly

upon its citizens rather than indirectly.Federations have varied enormously in therange of powers assigned to each order of gov-ernment, but common to them all is the consti-tutional guarantee to the subnational govern-ments of noncentralisation, i.e., autonomy, in atleast some fields of jurisdiction.14 It is notewor-thy that some 24 countries in the world meetthe basic criteria for classification as federa-tions.15

Unitary systems, especially those embracingsubnational populations and territories, ofteninvolve substantial elements of administrativeand even legislative decentralisation to subna-tional governments. Significant examplesinclude China and Indonesia. What distinguish-es them from federations, however, is a differ-ent kind of autonomy regime, whereby theresponsibility for all matters including thescope of jurisdiction assigned to subnationalgovernments and indeed their constitutions,rests with the central or national government.

Thus, in a unitary system the authority of thesubnational governments is derived not fromthe constitution of the union but from its centralgovernment.Yet another form of autonomy regime is rep-

resented by confederations where commoninstitutions composed of delegates of the con-stituent governments are established to dealwith shared interests, but such bodies derivetheir powers from the constituent units.Ultimate responsibility in confederations isretained by the governments of the constituent

units through the requirement of unanimousagreement.

Still another form of autonomy is that of fed-eracies and associated states, of which there arecurrently some 20 examples. In these a smallerpolitical entity is linked to a larger one, often aprevious colonial power, but the smaller unitretains considerable autonomy in return for aminimal role in the government of the largerone.16

But the variety of autonomy arrangements for

subnational governments does not end there.Since statesmen and nation-builders are oftenmore interested in pragmatic political solutions

than in theoretical purity, they have on occasioncreated hybrids combining different kinds ofautonomy regimes. One such type is that ofquasi-federations where the overall structureis predominantly that of a federation but the

federal or central government is constitutionallyallocated some overriding unilateral powersakin to those in unitary systems that may beexercised in certain specified circumstances.Significant examples are Canada (althoughthere unilateral central powers have fallen intodisuse for more than half a century now), India,Pakistan and Malaysia. A different hybridautonomy regime is that of constitutionallydecentralised unions. In these the system is pre-dominantly unitary, but the national constitu-tion contains some constitutional safeguards forthe jurisdiction and role of the subnational gov-ernments. Major examples of this type ofautonomy regime for subnational governmentsare the United Kingdom, Italy, Japan and PapuaNew Guinea. The unique South African hybridcomes somewhere between these two types ofhybrids. In my view, debates about whetherSouth Africa is federal or not are fruitless.More important is whether this particular formof hybrid makes possible effective governanceand policy-making to meet the needs of theSouth African people and whether modifica-tions would help to meet these objectives.Yet another form of hybrid is that of confed-

erations involving some elements more typicalof federations. The European Union is theprime example of this type of hybrid as it hasprogressively incorporated such features asweighted majority voting and decisions bindingmember states.

In addition to this variety, note must also betaken of some new and innovative autonomy

regimes. There is, for instance, that relating toHong Kong within China involving the co-exis-tence of a free market with a socialist economywithin one sovereignty.17

A further point to be made is that within eachof these categories of autonomy regimes, thescope of jurisdiction and of autonomy may beapplied uniformly i.e., symmetrically to allsubnational governments, or asymmetrically asfor instance is the case in a number of federa-tions including Canada, India, Malaysia,

Belgium, Spain and Russia. Such asymmetryamong constituent unit governments, alsooccurs within the confederal European Union


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(for example in relation to Denmark and theUnited Kingdom and in relation to the mone-tary union) and within constitutionally decen-tralised unions as illustrated by the differentrelationships applying to Scotland, Wales and

Northern Ireland within the United Kingdomand of Hong Kong, the autonomous regions,and the other regions within China. Dependingon the circumstances, such asymmetry may bepermanent to deal with fundamental variationsas in Canada, Belgium or Malaysia, or transi-tional in order to provide a period when varia-tions in development or capacity may bereduced, as in Spain or the European Union.

Clearly, then, there is a great variety both inthe impact of historical, geographic, economic,cultural and social factors upon the politicalsignificance and character of subnational gov-ernments, and in the range of autonomyregimes governing the role and autonomy ofsubnational governments within multitieredsystems of government.

3. THE SOURCE OF AUTHORITY FORSUBNATIONAL CONSTITUTIONS ANDTHEIR AMENDMENTFrom the preceding survey outlining the varietyof conditions and of autonomy regimes, it willnot be surprising that the source of authority forthe constitutions of subnational governmentshas also varied where subnational governmentshave been created by devolution within a uni-tary system. In these cases the subnational con-stitutions have generally either been embodiedin the national constitution or have derived theirauthority from national legislation. In the caseof federations or quasi-federations created bydevolution from formerly unitary systems, allor most of the main features of the subnational

constitutions have usually been embodied in thefederal constitution or at least have derivedtheir authority from it, a pattern with whichSouth Africa is consistent. On the other hand,in confederations or federations created byaggregation of previously existing separatepolities, the federal constitutions have delineat-ed the distribution of jurisdiction between thefederal and subnational governments, but other-wise the constitutions of the subnational poli-ties have usually derived their authority inde-

pendently from the pre-existing regimes.Nevertheless, some such federal constitutions,for example the US, have specified certain

basic requirements for the constitutions of themember states becoming members of the feder-ation.This raises the question of the amendment

procedures for subnational constitutions. For

subnational constitutions within decentralisedunitary systems, amendments of any major fea-tures almost invariably require the concurrenceof the national government or sometimes evensimply ordinary national government legisla-tion. In federations or quasi-federations wherethe subnational constitutions are embodied inthe federal constitution, there has often been aspecific procedure for all amendments of sub-national constitutions requiring the concurrenceof the federal legislature to amendments pro-posed by a subnational legislature. For instancethis has been the case in India, Pakistan andMalaysia.18The rationale offered for such anapproach has often been that since the units of afederal structure are interdependent, the generalstructures of subnational constitutions are oflegitimate concern to the federation as a whole.In some other federations or unions with adevolutionary origin, however, a special proce-dure has been set down in the federal constitu-tion for amendment of subnational constitutionswhich has left each province or state consider-able latitude to amend its own constitutionwithout requiring the endorsement of thenational government except for certain basicrequirements. Canada and South Africa bothfall into this category.19 In those federationscreated by the aggregation, where normally theconstitutions of the member states have notbeen incorporated into the federal constitution,amendment of the subnational constitutions hasbeen generally left to each subnational legisla-ture subject in some cases to the requirement

that they be consistent with a few basic princi-ples set forth in the federal constitution.

4. THE CONTENT OF SUBNATIONALCONSTITUTIONSWhether embodied in the overall constitution ofthe federation or union or in a separate distinctdocument, the content of subnational constitu-tions and particularly the degree of detail hasvaried also. Most specify in outline or in detailthe structures and procedures for the provincial

or state legislative, executive, administrativeand judicial bodies. Legislative and budgetaryprocedures have usually also been set out,


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although here too the degree of detail has var-ied.

A major difference exists between those sub-national governments that have fixed-termexecutives with a separation of powers between

legislature, executive and judiciary within thesubnational government and those that haveadopted parliamentary executives with thefusion of legislature and executive through theoperation of a cabinet chosen from and respon-sible to the legislature. In the US and Switzer-land where the principle of the separation ofpowers has prevailed at the federal level,whether in the American presidential-congres-sional form or the Swiss fixed-term collegialexecutive, the form of government prevailing atthe subnational level has in practice been inparallel. The Latin American federations(except in periods of military rule when gover-nors have been appointed by presidents) havebroadly followed the American model of sepa-rately elected governors and state legislatures.In those federations or quasi-federations withparliamentary regimes at the federal level such as Canada, Australia, Germany, India,Malaysia, Austria, Belgium and Spain thesubnational regimes have also been parliamen-tary in form. Where there has been a mixedform involving a combination of presidentialand parliamentary institutions at the federallevel, as in Russia and Pakistan, this has alsobeen reflected in the prevailing form of subna-tional governments. The South AfricanConstitution, 1996, establishes a mixed presi-dential-parliamentary regime at the nationallevel, but sections 104 to 141 lay out in consid-erable detail provisions for parliamentaryprovincial governments. Nevertheless, section143(1)(a) empowers a provincial legislature to

enact a provincial constitution providing forprovincial legislative or executive structuresand procedures that differ from these as long asthey are not inconsistent with the national con-stitution and, as required by section 144, are socertified by the Constitutional Court.

An interesting sidelight to this issue iswhether a republican form of federal govern-ment might be compatible with a monarchicalform in a subnational government. The SouthAfrican Constitution, 1996, s. 143(1)(b) ex-

pressly empowers a provincial constitution toprovide for the institution, role, authority andstatus of a traditional monarch, where applica-

ble. This would not be unique, for under theMalaysian Constitution nine of the 11 Malayanstates retained constitutional rulers.20Therepublican movement in Australia may raiseinteresting questions should the monarchy be

abolished for the federal government since thegovernor of a state at present is appointed bythe Queen on the direct recommendation of thestate premier (not the federal government as inCanada). Were some states to choose to retainthat arrangement, Australia would become arepublic containing some monarchies. In con-federations it has not been unusual to find amixture of forms of government among themember states. The European Union whichincludes both monarchies and republics is anillustration of this.

Four further points are worth noting about thecontent of subnational constitutions. First,issues of the scope of jurisdiction of subnation-al governments and of their interrelationshipwith the national or federal government havealways been defined in the national or federalconstitution rather than in the subnational con-stitutions. The scope of legislative competence,executive jurisdiction, and of taxing and bor-rowing powers, as well as constitutional provi-sions governing intergovernmental relations,collaboration, and financial transfers have inmost cases been set out totally in the federal ornational constitution (or its schedules). In thosecases where they have been alluded to in thesubnational constitution of a pre-existing polity,these have been totally overridden by the feder-al or national document. One unusual variant,however, is the case of Russia. There the cur-rent federal constitution sets out a distributionof powers between the federal government andthe governments of the subjects of the federa-

tion (as the constituent units are known), butthe federal constitution also includes a sectionpermitting a constituent unit to negotiate atreaty modifying its specific jurisdiction. By theend of 1997, 45 of the 89 subjects of the federa-tion had already negotiated such treaties creat-ing a highly complex asymmetry in the jurisdic-tion of these units and their relation to the fed-eral government.

Second, there are variations among decen-tralised unitary systems, quasi-federations and

federations in the degree to which a full dualityof civil services and judiciaries has been estab-lished. The US as the first modern federation


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applied the notion of duality not only to legisla-tures and executives but also to public servicesand judiciaries, each level having its own. Butthis principle has been moderated in some otherfederal countries. In the case of public services,

it has been normal in federations and quasi-fed-erations, for each government to have its ownpublic service. India, Pakistan and Malaysia,however, did make specific provision for jointhigher public services and for commissionsshared by federal and provincial govern-ments.21The South African Constitution, 1966,has provided for the establishment of a singlePublic Service Commission for the Republic toadvise national and provincial government(s.196).22 Section 197 of the constitutionemphasises the integrated character of theSouth African public service but section 197(4)declares that provincial governments areresponsible for the recruitment, appointment,promotion, transfer and dismissal of membersof the public service in their administrationswithin a framework of uniform public service.

While a dual judiciary would seem to be thelogical corollary of the dual polity inherent inthe federal principle as traditionally formulated,a number of federal systems have concludedthat a fully dual system of courts is not neces-sary as long as the independence of the judicia-ry from the executives and legislatures of bothlevels of government can be assured. Indeed, ofthe older federations only the US has comeclose to establishing a fully parallel system ofcourts. The central governments of Australia,Canada and Switzerland have had authority toset up their own courts but generally they havedepended upon subnational courts to administercentral law relying on the appellate jurisdictionof their supreme courts to impose some unifor-

mity of the interpretation of federal laws. Mostof the newer federations, especially in Asia andAfrica, short of experienced judges and influ-enced by their predecessors, have also avoidedthe duplication of courts. Malaysia for instancehas had an almost unitary system of courts, apattern followed also under the South AfricanConstitution, 1996, Chapter 8. The courts inIndia and Pakistan form a single integrated sys-tem with the same courts adjudicating both thefederal and state/provincial laws, but unlike

Malaysia and South Africa authority over theirorganisation has been divided between the cen-tral and state/provincial governments.23

Third, there is the issue of the constitutions ofthe other level of subnational governments,local governments, both municipal and rural.As noted in the introduction, increasing atten-tion has been given throughout the world in

recent years to the importance of local govern-ments in meeting the needs of citizens. In mostdecentralised unitary systems the scope andstructure of local governments have beendefined simply by national legislation.Traditionally in most federations, including

quasi-federations, the constitutional distributionof powers between the federal and provincial/state governments has left the responsibility forthe establishment and operation of local gov-ernments with the provinces or states. In recentyears, however, in some federations notablyGermany and India efforts have been made torecognise the importance of local governmentas a full-fledged third order in the federal sys-tem by formally recognising in the federal con-stitution the position and powers of local gov-ernments.The South African Constitution, 1996, has

followed this path by devoting a whole chapter(Chapter 7, ss. 151-164) to the structure, pow-ers and functions of local governments and byemphasising in Chapter 3 the integral role oflocal governments as a sphere of cooperativegovernment (sections 40 and 41).

In practice the importance of local govern-ments as a third sphere of government has var-ied enormously from federation to federation,being perhaps most prominent in Switzerlandand the US and least in Australia. It is alsoworth noting that in some federations intergov-ernmental relations directly between federaland local governments have been considerable,whereas in others, such as Canada, nearly all

such relations have been funnelled through theprovinces as intermediaries.

One of the problems affecting the relations oflocal governments with other spheres of gov-ernment is simply the sheer number of localgovernments which raises issues of how theyshould be represented in intergovernmentalcouncils. Nevertheless, in Australia when thenew Council of Australian Governments wasestablished in 1992 to improve intergovernmen-tal collaboration on economic development

policies some representation for local govern-ments was formally included, and the EuropeanUnion has established a Committee of Regions


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which includes representatives of both subna-tional state governments and local govern-ments.

Fourth, there is the issue of safeguardingthose citizens who find themselves in a minori-

ty within a subnational territorial unit. Federa-tions best protect distinct groups and minoritieswhen those communities are regionally concen-trated in such a way that they may achieve self-government as a majority within a subnationalgovernment. Examples are the largely unilin-gual and uniconfessional cantons of Switzer-land, the predominantly French-speakingmajority in Quebec within Canada, and the pre-dominantly Flemish and French-speakingregions and communities within Belgium. Butrarely in practice are populations distributedinto neat watertight territorial subnational units.In virtually all federations the existence ofsome intra-unit minorities within the subnation-al units of government has been unavoidable.Where significant intra-provincial minoritieshave existed, three types of solutions have beenattempted.The first has been to redraw the boundaries

of the subnational units to coincide with thelocation of the linguistic and ethnic groups. Thecreation of the Jura as a separate canton inSwitzerland and the reorganisation of stateboundaries in India and in Nigeria referred toearlier provide examples. But even whenboundaries have been redrawn it has beenextremely difficult to avoid leaving some intra-state minorities within the new units.

A second approach has been to assign to thefederal government a special role as guardian ofintra-provincial minorities against possible op-pression by a provincial majority. Examples ofsuch quasi-federal provisions can be found in

the federal constitutions of Canada, India andMalaysia.24

The third, and most widely used approachhas been to attempt to protect intra-provincialminorities through a set of fundamental rightsembodied in the federal constitution.25 Al-though it was not the original intent of the Billof Rights added to the US Constitution by thefirst ten amendments in 1791 to apply the bill tostate governments, the effect of the FourteenthAmendment in 1868 and subsequent judicial

interpretation has been to extend the protectionof individual rights not just from federal actionbut also from state action. A number of subse-

quent federations have set out in their constitu-tions more extensive lists of fundamental rights,including in some cases collective group rights,protected from both federal and subnationalgovernment action. Examples have been

Germany (1949), India (1950), Malaysia(1963), Spain (1978), Canada (added in 1982),and Belgium (1993). The South AfricanConstitution, 1996 (Chapter 2, sections 2-39)clearly follows in this tradition. On the otherhand, Switzerland, Australia and Austria havenot elaborated sets of fundamental rights intheir federal constitutions.

In some instances subnational constitutionshave also included their own set of fundamentalrights to protect their own citizens and minori-ties. This has been the case, for instance, insome Canadian provinces, most notablyQuebec which has its own Charter. Indeed,when the Supreme Court of Canada in itsDecember 1988 decision struck down a sectionof Quebecs controversial language law, it didso on the grounds that these sections conflictedwith the Quebec Charter of Rights rather thanwith the Charter in the federal constitution.Where there are both federal and subnationalcharters of rights, there is always the possibilityof a charter duel, but in such cases courts havenormally judged that the federal charter ofrights, insofar as there is conflict, must prevail.What provincial charters of rights can do, how-ever, is to supplement or extend the rightsavailable to their own citizens and minoritiesbeyond those set out in the federal constitution.

CONCLUSIONAs this survey has indicated, there is a broadand extensive variety in the contextual factors,the nature of the autonomy regimes, the source

of authority and character of their constitutions,and the content of the constitutions of subna-tional governments in multitiered or multi-sphered polities in the contemporary world.Clearly there is no single ideal model whetherfederal, unitary or hybrid applicable to all cir-cumstances. Those designing subnational gov-ernments can learn a great deal from this richdiversity of experience, but ultimately each sys-tem of subnational governments must be shap-ed and adapted to fit the particular conditions

and circumstances in which it is established.There is one further point which has not been

emphasised in the body of this paper but which


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is crucial to effective subnational governmentwithin a multi-sphered polity. That is the publicacceptance of the respect for constitutionalismand the rule of law. If subnational constitutions,whether embodied in the federal constitution or

in separate distinct documents, are to be more

than mere words on paper, the public and politi-cians in their practice must recognise andobserve them as a fundamental prescription ofthe structures and procedures required for mul-titiered or multisphered democratic govern-

ment.

1) R. L. Watts, Federalism, regionalism andpolitical integration, in David Cameron,ed.,Regional ism and Supranationali sm(Montreal: Institute for Research on PublicPolicy, 1981) pp. 3-5.

2) R.L. Watts,Comparing Federal Systemsin the 1990s(Kingston: Institute of

Intergovernmental Relations in associationwith McGill-Queens University Press,1996) pp. 6-14.

3) D.J. Elazar, ed.,Federal Systems of theWorld: A Handbook of Federal, Confed-eral and Autonomy Arrangements2nd ed.(Harlow, Essex: Longman Group Limited,1994), pp. 357-9, and Watts, op. cit., p. 12.

4) Elazar, op.cit., pp.357-9, and Watts, op.cit., p. 11, 13.

5) T. Courchene, Glocalisation, institutional

evolution and the Australian federation,in B. Galligan, ed.Federali sm and theEconomy: International, National and

State Issues (Canberra: FederalismResearch Centre, The Australian NationalUniversity, 1993), pp. 64-123.

6) J.R. Pennock, Federal and unitary gov-ernment disharmony and reliability,Behavioural Science, vol. 4(2), 1959, pp.147-57.

7) M. Landau, Federalism, redundancy andsystem reliability,Publius, vol. 3(2), pp.173-95.

8) Constitution of the Republic of SouthAfrica, 1996, Chapter 3.

9) For a fuller discussion see R. L. Watts,Federalism, regionalism and politicalintegration, pp. 6-9.

10) D. Elkins,Beyond Terri tory: Terr itory andPoli tical Economy in the Twenty-Fir stCentury (Toronto: University of Toronto

Press, 1995).11) R. Hrbek, German federalism and the

challenge of European integration, in C.

ENDNOTES


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Jeffrey and P. Savigear, eds.GermanFederali sm Today(Leicester: LeicesterUniversity Press, 1991); U. Leonardy,Regionalism with federalism: the Ger-man Constitution prepared for European

Union, in B. de. Villiers, ed.,EvaluatingFederal Systems(Cape Town: Juta & Co,1993).

12) See, for instance the special issue ofRegional and Federal Studies: anInternational Journal, vol. 6(2), 1996.

13) Elazar,Explor ing Federal ism, pp. 34-38;E.E. Osaghae, A reassessment of federal-ism as a degree of decentralisation,Publius, vol. 20(1), 1990, pp. 83-98.

14) Watts,Comparing Federal Systems in the

1990s, pp. 6-14, 65-74.

15) Ibid., pp 7-8, 10. Significant examplesamong the 24 federations are the UnitedStates, Switzerland, Canada, Australia andGermany.

16) Ibid., pp. 8, 11, 13; Elazar, FederalSystems of the World, pp. xvi-xvii, 357-9.

17) Y. Ghai, Autonomy with Chinese charac-teristics: the case of Hong Kong, unpub-lished paper delivered at conference onFederalism and diversity, 23-24 January1998, The Hague, The Netherlands, spon-sored by the International Centre forEthnic Studies, Colombo and the Instituteof Social Studies, The Hague (due forpublication in 1999).

18) R.L. Watts,New Federations: Experi -

ments in the Commonwealth (Oxford:Clarendon Press, 1966), pp. 304-5.

19) The Constitution Act, 1982, s. 45 leavesprovinces free to amend their own consti-tutions, subject to a few basic require-

ments set down in s. 41 which require theassent of the federal parliament and all theprovincial legislatures. On South Africasee The Constitution of the Republic ofSouth Africa, ss. 142, 143 which permitsprovinces to establish or amend a provin-cial constitution if its legislature does sowith a two-thirds majority and as long asits provisions are compatible with certainrequirements of the national constitution.

20) Watts,New Federations, pp. 240, 265.21) Watts,

New Federations, pp. 230-1.

Examples are the All-India IndianAdministrative Service (IAS) and IndianPolice Service (IPS), the All-PakistanCivil Service of Pakistan (CSP), andPolice Service of Pakistan (PSP) and theprovisions in Malaysia for secondment ofadministrative officers between centraland state governments.

22) The previously existing national andprovincial public services were continuedfor a transitional period, however.(Schedule 6 item 24(2)).

23) Watts,New Federations, pp. 226-228.24) Watts,Comparing Federal Systems, pp.

96-7.25) Ibid., pp. 97-9.


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INTRODUCTIONFederalism is a form of government in whichcitizens are members of two political commu-nities, each of which has a degree of finalautonomy. While some polities are organisedas federations for historical reasons, most fed-eral systems serve significant contemporarypurposes as well, actually or potentially. Theunifying characteristics of federalism enable

joint action, common standards and other bene-fits of a larger community in areas where theseare considered important. The devolutionarycharacter of a federal system can facilitate thegovernance of ethnically diverse peoples,extend democratic participation, adapt policy toregional needs and encourage innovation,experimentation and competition.1

By definition, the autonomy of subnationalunits in a federation is not absolute and itsextent will depend, properly, on the needs ofthe polity concerned. By definition also, how-ever, the autonomy of the units will be greaterthan that of local governments in a unitary sys-

tem, to which central authority has beendevolved.

Every federal system is structured by a cen-tral constitution which divides power, estab-lishes central institutions, prescribes the rulesfor resolving disputes and provides a procedurefor its own alteration. The characterisation ofsubnational units as political communities,however, suggests that they must have constitu-tions of some kind as well, although it does notnecessarily prescribe the form they should take.

The first theme of this paper is the relationshipbetween these two groups of constitutionswithin a federation. While it may readily be

accepted that a subnational constitution shouldcomply with the national constitution, there aremore difficult questions about the extent andmanner of national control, given the natureand purpose of federalism.2 And from the per-spective of subnational communities, there areeven more difficult questions about the statusof these constitutions, the source of authorityfor them and the manner in which they can andshould be changed.

Federal-type systems take many forms, butall anticipate the possibility of conflict. Theusual, although not invariable rule is that cen-tral action, taken within the limits of the centralconstitution, is entitled to prevail. Associatedwith it, typically, is an assumption that disputesover the boundaries of power will be resolvedthrough courts. This was, indeed, the mostcompelling original rationale for judicialreview of the constitutionality of legislation.Judicial review is a remedy of last resort,

however. It is costly and can be disruptive. It isa blunt instrument, in the sense that it cannot

moderate but can only identify winners andlosers. Arguments persist about its relationshipwith majoritarian democracy. Its effect general-ly has been to expand central power at theexpense of subnational competence. The pres-sures of internationalisation and globalisationexacerbate this tendency. At the end of the 20thcentury, there is some interest in mechanismsthat might avoid competency disputes in feder-al-type systems or at least avoid their resolutionin this way. The results should be monitored

closely. In some jurisdictions, dispute-avoid-ance techniques may strike a more appropriatebalance between unity and diversity than could

23

The Relationship Between National andSubnational Constitutions

Cheryl Saunders


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have been achieved through the courts. In oth-ers, abandoning the neutral adjudication thatcourts, at their best, provide ultimately, mayundermine the constraints on power on which afederal-type system depends.

This paper deals with two distinct, but relatedquestions: national control over subnationalconstitutions and processes for resolving com-petency disputes. Its purpose is to identifyissues and options as a basis for comparativestudy. Some examples in the paper are takenfrom a variety of declared federations. Someare taken from systems that are not formal fed-erations but which have some federal character-istics: South Africa is one of these.

Most of the examples are taken from Austra-lia; this is partly because Australia is the feder-ation most familiar to me. But it is also becauseAustralia presently offers an appropriate casestudy for the purpose. The current constitution-al debate in Australia raises many issues for thedivision of power between national and subna-tional constitutions and institutions, which havepotential relevance for other federal-type sys-tems, and for which a comparative approachmay be useful.

1. THE AUSTRALIAN FEDERATIONThis section provides a brief introduction tosubnational constitutions in the Australian fed-eration, as background for the analysis that fol-lows.

Australia consists of six states, two self-gov-erning mainland territories and a number ofexternal territories. All six states were originalconstituent units of the federation. Before fed-eration, they were self-governing Britishcolonies, each with its own constitution, institu-tions of government and laws. In that sense, the

Australian states predate the federation itself.Section 106 of the national constitution refersto state constitutions, as follows:

The Constitution of each State of theCommonwealth shall, subject to thisConstitution, continue as at the establish-ment of the Commonwealth, or as at theadmission or establishment of the State, asthe case may be, until altered in accordancewith the Constitution of the State.

The purpose of the first part of the section was

a practical one: to ensure that the constitutionsof the former colonies survived the transition tofederation, as the fundamental constitutional

instruments of each of the states.3The presenceof such a provision in the national constitution,however, has prompted the High Court ofAustralia to conclude that state constitutionsnow derive from the national constitution.4

One practical effect of this development isthat state constitutional issues become mattersarising under the national constitution. Theythus fall within federal jurisdiction5 and aresubject to the power of the federal Parliamentto legislate for the manner of the exercise ofthat jurisdiction, within the limits prescribed bythe Constitution. The doctrine has theoreticalconsequences as well, which are taken upbelow.The second part of the section was designed

to preserve the existing manner and formrequirements for the alteration of state constitu-tions. At the time of federation, the inclusion incolonial constitutions of a special amendmentprocedure needed authorisation by Imperiallaw.6 Section 106 served to rebut any presump-tion that the authority to entrench state constitu-tions had been overridden and parliamentarysovereignty restored. When the final, formallinks were broken between the United Kingdomand Australian parliaments, the authority toentrench was reiterated in the Australia Acts1986.7

These pre-existing principles, antiquatedalthough they undoubtedly are, have preventedthe interpretation of section 106 as itself pro-viding authority for the entrenchment of stateconstitutions. Nor, despite some encouragementfrom its wording, has the section been interpret-ed to prevent alteration of state constitutions bythe national constitution alteration procedure.8

As original states,9 the existing states enjoycertain constitutional guarantees that would not

necessarily be available to new states. Theseinclude entitlement to an equal number of sena-tors and a guarantee of minimum representationin the House of Representatives.10The estab-lished character of the original states helps toexplain one other distinguishing feature of theAustralian Constitution: the relatively fewdirect controls that it imposes on state constitu-tions. In recent years, however, new controlshave emerged through judicial decisions as aconsequence of the interrelationship between

national and subnational institutions. Thesehave the potential to alter significantly theautonomy of states in relation to their own con-


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stitutions and the way in which state constitu-tions operate in practice.The position of the territories in the constitu-

tion provides an opportunity for reflection onthe nature and significance of statehood. The

two self-governing territories are particularlysignificant in this regard, because they are simi-lar to the states in all but name. One of these,the Northern Territory, presently is seekingadmission to the federation as a new state. Theother, the Australian Capital Territory, is theseat of the federal government and probably isunable, constitutionally, to become a state.11

There are relatively few non-federal limits onthe power of governments and parliaments inthe Australian Constitution. Such as they are,however, they generally apply only in the statesand for the benefit of the people of the states.Examples include the separation of federal judi-cial power,12 the right to trial by jury,13 the pro-tection against discrimination on the grounds ofresidence14 and the guarantee of freedom ofinterstate trade.15This feature can be justifiedeither as an accident of history or as a reflectionof the dominant federal purpose of the constitu-tion. On either basis, it is inconsistent with cur-rent community attitudes.16 A slow process ofchange has been under way for some timethrough legislation,17judicial interpretation,18

and constitutional alteration.19 Its exclusionfrom the constitutional mainstream has, howev-er, been one of the arguments advanced by theNorthern Territory in favour of its admission asa state.The experience of the Northern Territory in

seeking statehood is relevant more generally tothis paper as well. The beginning of the modernmovement to statehood for the Northern Ter-ritory in the late 1980s, was almost a textbook

example of how to draft and secure acceptancefor a constitution as an essential prerequisite fora new state. A bipartisan Parliamentary Com-mittee was established to consult widely withthe entire community of the Territory, whichincludes the largest proportion of indigenousAustralians of any state or territory. On thebasis of these consultations, the committee pre-pared a draft constitution.20 It dealt with issuesthat would be likely to prove most controver-sial, by developing several options for consider-

ation by a Northern Territory ConstitutionalConvention, before the final constitution wasput to a territory-wide referendum. Issues han-

dled by the committee in this way includedguarantees of rights and recognition ofAboriginal customary law.The textbook case became a negative exam-

ple, however, in the final stages. The basis on

which the convention was constituted waswidely criticised as manipulative on the part ofthe government.21The draft approved by theconvention followed more closely a seconddocument, put forward by . . . a senior Minis-ter22 than it did the final draft constitution ofthe Sessional Committee. The Northern

Territory Legislative Assembly adopted theconstitution approved by the convention, withminor modifications.23 At referendum, the elec-torate was asked only whether it approvedstatehood now that the Legislative Assemblyhas adopted the Constitution. Largely in reac-tion against what was perceived as a flawedprocess, the electorate voted no. It is not clearat this stage whether it will be possible torevive the movement towards statehood in timefor the constitutional centenary in 2001, whichwas the original goal.

One final, recent development with poten-tial relevance for state constitutions requiresmention. Australia presently is a constitutionalmonarchy. There are direct links between theMonarch and her representatives nationally andin each of the states. For most practical purpos-es, a governor-general and six state governorscarry out the functions of the Monarch inAustralia. A proposal to break the links withthe Crown and, in this sense, to establish arepublic is presently under active considerationand will be put to referendum in November1999.24 It raises a number of issues that are rel-evant for present purposes.The central question is whether an alteration

to the national constitution should establishrepublicanism, in the limited sense in whichthe term is used in Australia, as a nationalnorm. In effect, this would impose a republicansystem on each of the states, even where a statemajority had opposed and voted against thechange in a national referendum. A furthercomplication is that, even if republicanism wereestablished in this way, consequential changesto state constitutions would still be necessary toalter monarchical forms and to create republi-

can institutions. In some states, the relevantparts of the state constitution can be changedonly by referendum.25 It is easy to foresee cir-


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cumstances in which a state community mightbe unwilling to make such changes. In thatcase, the only solution would be to prescribeinterim state constitutional structures in thenational constitution. This would be a major

new departure in Australia and, potentially,extremely divisive. These considerations haveinfluenced the decision to draft the republicanmodel in a way that leaves the decision aboutthe links with the Crown at state level to thestate concerned, and does not interfere directlywith state constitutions at all.26

2. NATIONAL AND SUBNATIONALCONSTITUTIONS2.1 The form of subnational constitutionsAll subnational units must have a constitutionof some kind, formal or informal. Not all areseparate from the national constitution, as theexamples of Canada and India show. Sub-national units are more likely to have separateconstitutions where they existed as units withtheir own constitutions before federation, as inthe United States (US) and Australia. Even inthese cases, however, the national constitutionmay refer to subnational constitutions and maybe interpreted as authorising them, as inAustralia.

Authorisation of subnational constitutions bythe national constitution raises an importantquestion of principle about the link between asubnational constitution and the community itserves. It may readily be accepted that nationalconstitutions are based on popular sovereignty.

The corresponding assumption about subna-tional constitutions is complicated by their rela-tionship with the national constitution. No sub-national constitution is completely uncon-trolled. To a degree that depends on the extent

of control, subnational constitutions thereforedraw on the authority of the people organisednationally, as well as the authority of the peopleof the subnational community. On one view,this is merely another manifestation of the com-promise inherent in any federal-type system.Nevertheless, the resulting ambiguity under-mines the significance of state constitutions andmakes it less likely that they will develop as afocal point of local democracy.This largely theoretical question has impor-

tant practical ramifications for the questionforeshadowed earlier: whether and in what cir-cumstances subnational constitutions can be

altered through the national constitution by anational majority. To the extent that subnationalconstitutions are controlled by the national con-stitution, change is likely to be effected by thenational constitution alteration procedure.

Consideration of the relevance of these con-stitutions to subnational communities, however,suggests that it may be appropriate to accom-modate their views in some way, as well. Oneoption would be to require subnational consent,appropriately conveyed, to changes that affectsubnational constitutions, generally or in signif-icant ways.

Little attention has been given to this consid-eration in connection with the AustralianConstitution. The constitution alteration formu-la under section 128 of the Australian Constitu-tion requires the consent of particular subna-tional units for certain alterations. Those speci-fied are changes to the proportional representa-tion of the original states in the AustralianParliament or changes to state geographicalboundaries. There is no express requirement ofstate consent to changes that would affect theconstitutions of the states themselves. Thepreservation of state constitutions until alteredin accordance with the Constitution of theState by section 106, might have providedencouragement to the development of a judicialdoctrine which protected state constitutionsfrom alteration by national majorities. So far,however, this has not occurred.The issue is a live one in Australia, in con-

nection with the move to a republic. The consti-tution alteration procedure prescribed in section128 of the Australian Constitution requires pro-posals for change to be passed by the Common-wealth Parliament and approved by referendumwith national majorities and majorities in at

least four states. Construed literally, it wouldallow a republican referendum to be carried bymajorities in four states overriding the views ofstate majorities in the other two.27This wouldbe so, even if the proposed alteration were torequire the states as well as the Common-wealth, to sever links with the Crown. What-ever the legal position, there are political prob-lems with such a course of action. These areavoided in the present proposal, now releasedin the form of a draft bill to amend the national

constitution,28 which would not affect stateconstitutions. Rather, the proposal assumes thata republic will be achieved at both Common-


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wealth and state levels by cooperative and coor-dinated action between the various govern-ments.The decision to confine the referendum on

the republic to the national sphere of govern-

ment raises the possibility that some states mayretain their links with the Crown after Australiabecomes a republic, at least in the short term.

The Constitution Alteration Bill would facili-tate this, by expressly authorising states toretain their links with the Crown and providingthat, in such a case, the monarch of the statewould be the person who would have been themonarch of Australia had the republican refer-endum not been passed.29 Such an outcomewould be widely deplored. Nevertheless, stag-gered change of this kind has some historicalprecedent in Australia, where the sovereignty ofthe British Parliament vis--visthe Common-wealth Parliament formally was repudiated30

fifty years before the same step was taken inrelation to the parliaments of the states.31Thepossibility of a partial republic illustrates theextent to which Australian constitutions are freeof national constitutional control. More signifi-cantly, for present purposes it is evidence of theexistence of a culture that resists such control,even on a point of major principle.

2.2 Procedures for controlThe usual rule is that a national constitution isparamount and that a subnational constitutionmust be consistent with it. The significance ofsuch a rule depends on what the national consti-tution says about subnational constitutions.

In a hierarchy of norms, a valid national lawusually is paramount over subnational constitu-tions as well. The federal division of powers,however, may mean that the capacity of the

centre to makes laws affecting a subnationalconstitution is limited. Nevertheless, the possi-bility that an ordinary national law may over-ride a subnational constitution raises even morestarkly the question about how subnational con-stitutions can or should be changed. In Austra-lia, the question is complicated by the fact thatboth the list of federal concurrent powers insection 51 and section 106 to which referencealready has been made are expressed to besubject to this Constitution. In the case of a

conflict between an exercise of power undersection 51 and section 106, one or other ofthese sections must have priority.

The issue was raised before the High Court in1989 in the context of the effectiveness of aCommonwealth law passed under section51(38) of the Constitution, with the concur-rence of all state parliaments, to expand the

state competence to make laws for areas belowthe low water mark. In effect, the law alteredthe constitutions of the states, by extendingtheir jurisdiction off-shore. The High Courtheld that in these circumstances, the exercise ofCommonwealth power under section 51 pre-vailed.32 In part, at least, the decision was justi-fied by the cooperative nature of the exercise.Whether the same logic would apply in lesscooperative circumstances, if a state constitu-tion were overridden by a different power,remains unclear. The principle of the priority ofCommonwealth law having been established inrelation to one power, however, it is unlikely tobe altered for others, cooperation notwithstand-ing.

Whatever the autonomy or dependence ofexisting subnational units, national control islikely to be exercised at the point where a newunit is admitted to the federation. Nationalpower to admit a new unit usually implies apower of decision in relation to its constitution.

Thus, for example, section 121 of the Austra-lian Constitution authorises the CommonwealthParliament to admit or establish new states andupon such admission or establishment, makeor impose such terms and conditions . . . as itthinks fit. To similar effect, Article IV section3 of the US Constitution provides that: NewStates may be admitted by the Congress intothis Union . . .The meaning and effect of the Australian pro-

vision may become an issue in relation to state-hood for the Northern Territory. The effective

rejection of the previous draft constitution bythe people of the territory themselves hasalready been noted. One of the major issues inany attempt to revive the statehood movementwill be the adequacy of the protection whichthe new state constitution offers to the indige-nous people of the Northern Territory, whosevote was instrumental in the rejection of theearlier draft. Even if a new draft is accepted inthe Territory, it is likely to come under closescrutiny in the Commonwealth Parliament,

directly or indirectly, as the Parliament consid-ers legislation for the admission of the Territoryto statehood. The stance of the Australian


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Senate, typically constituted by a minority ofgovernment members, is likely to be particular-ly important.These points concern the opportunity for

national control of subnational constitutions.

There is a further question, however, about themechanisms through which a national constitu-tion actually controls subnational constitutions.A range of models is suggested by existing fed-eral-type systems.

Most obviously, a national constitution mayexpressly control subnational constitutions.Prescribing all or part of the subnational consti-tutions may do this. In theory at least, a nationalconstitution may make full and final provisionfor subnational constitutions. Alternatively, anational constitution may provide the frame-work for subnational constitutions until individ-ual subnational units provide otherwise, as inSouth Africa.33 In this case, the national consti-tution is likely to provide some mechanism forcontrolling the content of new subnational con-stitutions. In South Africa, this is achievedthrough the certification procedure of theConstitutional Court.34

Even in a system that assumes the separateexistence of subnational constitutions, thenational constitution may prescribe particularprinciples with which subnational constitutionsmust comply. Thus, for example, the USConstitution requires the US to guarantee toeach State . . . a Republican Form of Gov-ernment.35

The South African Constitution requires sub-national constitutions to comply with basic con-stitutional values and the principles of coopera-tive government.36The German Constitutionrequires the constitutions of theLnder to con-form to the principles of republican, democrat-

ic, and social government based on the rule oflaw.37

There are no such positive specifications forsubnational constitutions in the AustralianConstitution. Like many federal-type constitu-tions, however, the Australian Constitution pre-scribes some rules which subnational constitu-tions may not transgress. In Australia, theserelate to the nature of the union that the consti-tution was designed to create and are largelyeconomic in character. Thus, for example, it

would not be possible for an Australian stateconstitution to significantly favour residents ofthat state over other Australian nationals.38

Similarly, state constitutions may not protectlocal industries by discriminating against tradewith other states, directly or in substance.39

In addition to express restraints of this kind, anational constitution may inadvertently affect

subnational constitutions through the interrela-tionship of central and subnational institutions.Some different examples are suggested byAustralian experience.The first concerns the position of state gover-

nors. A governor represents the Queen in eachstate and, in effect, fills the position of non-executive Head of State typically found in par-liamentary systems derived from the West-minster model. State governors are, however,also given functions under the AustralianConstitution. Most of these concern theAustralian Senate, originally conceived as aStates House. Thus, for example, state gover-nors issue writs for Senate elections40 and playa part in filling casual vacancies in the Senaterepresentation of their state.41 In practice, also,state governors have acted as deputies to thegovernor-general, thus acting, in effect, asnational Head of State. Under the proposedmodel for a republic, the constitution would bealtered to formally enshrine this practice in thetext of the constitution.42The acting Presidentof Australia would be drawn from the ranks ofstate governors from time to time.

In fact, the constitution interprets the termGovernor broadly, to include any ChiefExecutive Officer or Administrator of theGovernment of the State.43The breadth of thedefinition lessens the implications of thesenational constitutional references to state gover-nors. These same sections, however, refer toother state institutions as well. State parlia-ments also play a role in filling casual Senate

vacancies.44 And in exercising some powers,governors specifically are required to act on theadvice of the Executive Council of thestate.45The Executive Council is a formal advi-sory body, the continuing usefulness of whichis open to question. No state is likely to betempted to abolish its parliament. If these sec-tions were interpreted to entrench state execu-tive councils, however, they might seriouslyconstrain future state attempts at institutionalreform.

A similar example concerns state courts. TheAustralian Constitution enables the AustralianParliament to confer federal jurisdiction on

subnational constitutional governance

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