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JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES

A GLOBAL D I A L O G U E ON F E D E R A L I S M
A Joint Program of the Forum of Federations and
the International Association of Centers for Federal Studies

EDITORIAL BOARD:

CO-CHAIRS
Raoul Blindenbacher, Canada / Switzerland
Cheryl Saunders, Australia

SENIOR EDITOR, BOOK SERIES

John Kincaid, United States

J. Isawa Elaigwu, Nigeria

Patrick Fafard, Canada
Thomas Fleiner, Switzerland
Meenakshi Hooja, India
Fernando Rezende, Brazil
Horst Risse, Germany
Ronald L. Watts, Canada

www.forumfed.org
www.iacfs.org

A Global Dialogue on Federalism publications available

BOOK SERIES
Constitutional Origins, Structure, and Change in Federal
Countries (2005), Volume I
Distribution of Powers and Responsibilities in Federal
Countries (2006), Volume II
BOOKLET SERIES
Dialogues on Constitutional Origins, Structure, and Change
in Federal Countries (2005), Volume I
Dialogues sur les origines, structures et changements constitutionnels
dans les pays federaux (2005), Volume I
Dialogues on Distribution of Powers and Responsibilities in
Federal Countries (2005), Volume II
Dialogues sur la repartition des competences et des responsabilites
dans les pays federaux (2005), Volume II
 A Global Dialogue on Federalism
Booklet Series
Volume III

DIALOGUES ON
LEGISLATIVE, EXECUTIVE,
AND JUDICIAL GOVERNANCE
IN FEDERAL COUNTRIES

EDITED BYRAOUL BLINDENBACHER

AND ABIGAIL OSTIEN

Published by

Forym of Federations
Forym des federatiops

and
iacfs
1ML.K -M f > \ \ i JIN,,); HU(>\ f.i
«. LM t (-•> i - •!' i I i 1C-1 • > ! ' Oil-
© Forum of Federations 2006
ISBN 07735-2941-1

This publication was produced with generous financial support from the
government of Canada and the Swiss Agency for Development and Cooperation.

Library and Archives Canada Cataloguing in Publication

Dialogues on legislative, executive and judicial governance in

federal countries / edited by Raoul Blindenbacher and Abigail Ostien.

(A global dialogue on federalism booklet series ; v. 3)

ISBN 0-7735-2941-1

1. Federal government. 2. Comparative government.

I. Blindenbacher, Raoul II. Ostien, Abigail J., 1971- III. Forum of Federations
IV. International Association of Centers for Federal Studies V. Series.

JC355.D5235 2005 321.02 C2005-906752-7

Printed and bound in Canada by Imprimerie Gauvin

 Contents

Preface vii
DIALOGUE INSIGHTS

Argentina: Centralized Power and Underdevelopment 2

ANTONIO M.HERNANDEZ

Australia: Dualist in form, cooperative in practice 6

KATY LE ROY / CHERYL SAUNDERS

Austria: Failure of Constitutional Convention; no changes

for federal system 10
ANNA CAMPER

Canada: Federalism Behind (Almost) Closed Doors 13

THOMAS O. H U E G L I N

Germany: Balancing Bundestag against Bundesrat and

Governments against Legislatures 16
STEFAN OETER

India: An ongoing experiment to redefine federalism 19

RAJEEV DHAVAN / REKHA SAXENA

Nigerian Federalism at the Crossroads 22

EBERE OSIEKE

The Russian Federation under Putin: From Cooperative

to Coercive Federalism? 25
ALEXANDER N. DOMRIN

South Africa: Provincial Implementation of National Policies 29

CHRISTINA MURRAY
vi Contents

Switzerland: Cooperative Federalism or Nationwide Standards? 32

WOLF LINDER / I S A B E L LE S T E F F E N

Contemporary Debates about the US Presidency and Congress:

The Electoral College, Legislative Gerrymandering, and
Enumerated Powers 35
JOHN DINAN

Comparative Reflections 39
KATY LE ROY / CHERYL SAUNDERS

Glossary 43
Contributors 51
Participating Experts 53
 Preface

After having published our first two booklets, the first on federal constitu-
tions, the second on distribution of powers, we are pleased to introduce
the third booklet in the Global Dialogue on Federalism Series. This booklet
explores various aspects of legislative, executive, and judicial governance
in federal systems. It reflects several lively dialogues that occurred at
roundtables in Argentina, Australia, Austria, Canada, Germany, India,
Nigeria, Russia, South Africa, Switzerland, and the United States. Those
who participated in the dialogue events - both practitioners and acade-
mics - are experts in their respective countries, all contributing a diversity
of viewpoints.
The content of these short articles provides the reader with a brief
synopsis of interactions between the constitutional design and actual ope-
ration of institutions of government in 11 federal democracies and the
current challenges to each system. The authors' words are a reflection of
their own understanding of the issues and of the insights gained during
the dialogue events.
Among the questions explored in the articles are: How does each country's
history and culture affect the system in action as opposed to the constitution
in design? What reforms are currently being proposed and what changes
can improve the functioning of the system? To what extent does the system
rely on intergovernmental relations and "cooperative federalism?" How
influential has federalism been on the design of institutions? What is the
relationship between federalism and democracy?
The exploration of these questions forms the body of the booklet in
country articles entitled "Dialogue Insights." The concluding chapter
by Katy Le Roy and Cheryl Saunders summarizes commonalities and
differences in the featured countries. A glossary at the end of the booklet
contributes to the accessible and educative nature of this publication, laying
the groundwork for a more comprehensive book on this same theme.
As such, it is our intention that the articles presented here will serve to
viii Preface

provide an entry point for Volume III of the book series, Legislative,
Executive, and Judicial Governance in Federal Countries, wherein the same
authors explore the topic in comprehensive detail.
The booklet is one outcome of a much greater project: A Global Dialogue
on Federalism, a joint program of the Forum of Federations and the
International Association of Centers for Federal Studies (IACFS). It is an
exploration of federal governance by theme, which aims to bring experts
together to inspire new ideas and fill a gap in comparative information on
federal governance. The first theme examined the origins, structure, and
change of several federal constitutions; the second explored distribution
of powers and responsibilities; examples of future themes include fiscal
federalism, foreign relations, and local governance.
Each theme exploration entails a multiple-staged process. First, a chosen
"theme coordinator" makes use of the most current research on the theme
to create an internationally comprehensive set of questions covering insti-
tutional provisions and how they work in practice. This set of questions
is the foundation of the program, as it guides the dialogue at the round-
tables - held concurrently in selected federal countries. A "country coor-
dinator," invites a select and diverse group of practicing and academic
experts to participate in a roundtable in his or her country. The goal is to
create the most accurate picture of the theme in each country by inviting
experts with diverse viewpoints and experience who are prepared to share
with and learn from others in a non-politicized environment. At the end
of the day, the coordinators are equipped to write an article that reflects
the highlights of the dialogue from each country roundtable. The articles
presented here have been generated from such an exchange. Once each
country has held its roundtable, representatives gather at an international
roundtable to identify commonalities and differences and to generate
new insights. Such insights are incorporated into the country chapters
in the aforementioned theme book. The chapters reflect the fact that
their authors were able to explore the theme from a global vantage point,
resulting in a truly comparative exploration of the topic.
The Global Dialogue on Federalism Series continues the Forum of
Federations' tradition of publishing either independently or in partner-
ship with other organizations. The Forum has produced a variety of books
and multimedia material. For further information on the Forum's publi-
cations and activities, refer to the Forum's website at www.forumfed.org.
The website also contains links to other organizations and an on-line
library.
Finally, we would like to express our appreciation to the authors of the
third theme booklet for their contributions to this volume. Special thanks
are due to Katy Le Roy and Cheryl Saunders for writing the final chapter,
"Comparative Reflections," and for offering their feedback on the booklet
as a whole. We wish to acknowledge the experts who took part in the
 Preface ix

dialogue events for providing a diversity of perspectives that helped to

shape the articles themselves. Their names are listed at the end of the
booklet. John Kincaid, Ronald Watts, and the rest of the Global Dialogue
Editorial Board have offered their invaluable advice and expertise. Thank
you to Alan Fenna and Thomas Hueglin for doing the painstaking work
of creating the glossary. We would like to acknowledge the support offered
by several staff members at the Forum of Federations. They include:
Sandra Braun, Lisa Goodlet, Karl Nerenberg, Nicole Pedersen, and Carl
Stieren.
Readers of this booklet are encouraged to use the knowledge gained to
inspire new solutions, thereby strengthening democratic governance, and
to join the many Global Dialogue participants around the world to expand
and strengthen the growing international network on federalism.

Raoul Blindenbacher and Abigail Ostien, Editors

Forum of Federations
This page intentionally left blank
DIALOGUES ON LEGISLATIVE, EXECUTIVE, AND
JUDICIAL GOVERNANCE IN FEDERAL COUNTRIES
This page intentionally left blank
 Argentina:
Centralized Power and
Underdevelopment
ANTONIO M. HERNANDEZ

Throughout its history, Argentina has experienced a high degree of con-

centration of power in the national executive, based in the capital of
Buenos Aires, which is also the focus of economic and financial power.
This phenomenon in turn has had implications both for the operation of
democratic institutions and for the enactment of federalism. While the
causes lie in part in problems of institutional design, which might be
remedied by constitutional or legal change, they are attributable also to
political culture and to a lack of respect for constitutional principles and
the rule of law, for which remedies are less readily found.
Argentina's national Constitution, originally promulgated in 1853,
reflects the combined influence of the Constitution of the United States
and the civil law tradition in the design of both the federal system and the
4 Antonio M. Hernandez

institutions of government. The federation comprises the federal or

national sphere of government, 23 provinces, and the autonomous city of
Buenos Aires, which is also the federal capital, and the Constitution divides
power between them. The establishment of the federation in 1853 brought
together 14 existing provinces and, as is often the case in a federation
formed in this way, each sphere of government has its own Constitution
and governing institutions. The institutional model involves a separation
of powers between the executive, legislative, and judicial branches, including
the direct election of the federal president, the provincial governors
and the head of government (Jefe de Gobierno) of the Autonomous City
of Buenos Aires. Since 1994, a measure of direct democracy has been
available as well through referenda and the "initiative," which is the power
of the citizens to present a bill under the Chamber of Deputies.
As is the case with other countries in Latin America, Argentina has expe-
rienced serious difficulties with the stability of its political system. This is
evidenced, for example, by the series of military coups d'etat that took
place between 1930 and 1983, disturbing both constitutional order and
democracy. This instability has been a major cause of the centralization of
power; successive rounds of constitutional alteration have impeded the
enactment of provincial and municipal autonomy. While Argentina fortu-
nately returned to a democratic form of government in 1983, the perfor-
mance of its institutions remains unsatisfactory in many ways. The history
of the past twenty years is marked by a lack of institutional quality because
the country has endured a state of continuing political, economic, and
social emergency, suggesting an underlying politi-
Unfortunately cal and legal immaturity that must be overcome.
tha constirutional With the re-establishment of democracy in 1983,
system has not the exercise of municipal and provincial autonomy
tunctioned propcrly
advanced and the public rights system was moder-
and consequently
nized through reforms in the provincial constitu-
neither have the
tions. Finally, the national constitutional reform
republican
federal and
institutions
of 1994 confirmed the decentralization of power
federal institutions by strengthening federalist principles, recogni-
The key problem
zing municipal autonomy, and granting a special
is the imbalance status to the Autonomous City of Buenos Aires.
of power both at But the lack of quality of Argentina's institu-
tha federal and
tions prevents the country from adequately
complying with the federal nature of the
provincial orters Constitution. The country cannot overcome the
obvious economic, financial, political, and social
dependence of the provinces on the federal government. Negotiations
regarding fiscal co-participation have been inconclusive, and there is still
no legislation in spite of the fact that the constitutional timeframes expired
8 years ago.
 Argentina 5

Unfortunately, the constitutional system has not functioned properly

and, consequently, neither have the republican and federal institutions.
The key problem is the imbalance of power both at the federal and provin-
cial orders. Consequently, it is in the president's and the governors' hands
that real political power lies. Furthermore, to this is added the predomi-
nance of the president and national government over the governors and
the provinces, which produces a centralization of power that is distant from
the constitutional principles.
The political problems mentioned above create a situation that prevents
Argentina from considering such a delicate matter as the federal system
and in particular, the modifications that have to take place in order to
comply with the principles of the Constitution. The republican system has,
among its stated objectives, the goals of freedom, equality among all
people, and the horizontal division of power. Federalism as a form of
decentralization of power can be conceived only within a democratic poli-
tical regime that brings power closer to the people and that acts as a
vertical control within the state. In effect, vigorous provincial and munici-
pal autonomy presupposes active participation on the part of citizens in
order to have good governance and serve as a check on the power of the
national government.
Several important changes can be made to address the poor functioning
of Argentina's institutions:

Compliance with the principles of the republican and federal system

established under the national Constitution.
Strengthening the federal role of the Senate.
Reaffirmation of the role of the Supreme Court of Justice as a guarantor
of federalism and balance of the powers.
Emphasizing democratic education at all levels.
Initiating deep political reform aimed at improving political parties that
are currently not properly performing their roles within the institutional
system.

Insofar as future trends are concerned, the best opportunities for the
country lie within the opportunities of globalization and deepening the
process of decentralization of power. That is why today the word "Glocal"
has been coined, indicating that people must think in global terms but act
locally. Regarding the risks at hand, it is impossible to hide the magnitude
of the crisis that the country is going through. Combined with economic
and social underdevelopment, Argentina has historically been compelled
to concentrate only on the circumstantial problems that prevent it from
resolving the deeper structural ones.
 Australia:
Dualist in Form, Cooperative
in Practice
KATY L E R O Y A N D C H E R Y L S A U N D E R S

Australia is a federation in which the centre and constituent units each

have an almost complete set of institutions of government in a style that is
broadly typical of a common law parliamentary democracy. On the face of
the Australian Constitution, each jurisdiction has considerable autonomy
from the others in the design and operation of its own institutions. As in
any federation, however, there is a range of ways in which the federal
character of the polity affects the structure and operation of institutions
and, conversely, in which the choice of institutions affects the dynamics of
the federal system. Some are the consequence of the original design of the
system of government. Others are the result of developments that have
taken place over the course of more than 100 years since the Australian
federation was established, including the reliance of governments on
increasingly sophisticated forms of intergovernmental relations.
Australia was settled by the British from the end of the 18th century as six
separate colonies scattered around the coast of the Australian continent
and on the island of Tasmania. Over the following 100 years, the colonies
 Australia 7

gradually became self-governing, with their own constitutions and their

own governing institutions, broadly in the British tradition. By the end of
the 19th century, each colony had a parliamentary system with a bicameral
legislature, from which the executive government was drawn; a governor,
representing the Crown, who acted as local head of state; and a court
system, with a Supreme Court at the apex within each colony, from which
appeals could go to the Privy Council in London.
The colonies federated in 1901, under a constitution that borrowed
primarily from Britain and from the United States. As a result, the
Australian Constitution combines British-style parliamentary government
with a federal system broadly along United States' lines. The Constitution
allocates specific powers to the Commonwealth, mostly as concurrent
powers, leaving residual power to the states. It also provides the framework
for the Commonwealth institutions of government: Parliament, executive
government and courts. This framework has been interpreted as mandating
a separation of powers, with particular significance for the judicial branch
of government, as the degree of separation between legislature and execu-
tive in a parliamentary system is necessarily rather weak.
On the face of it, therefore, Australia is a federation in which each
sphere of government has a complete set of institutions of its own. There
are some exceptions however. The most important concerns the courts.
While each sphere of government in fact has its own court system, the
Constitution allows the Commonwealth Parliament to give its jurisdiction
to state courts, and this is often done; prosecutions for offences under
federal law are one example. More importantly still, in a significant depar-
ture from the United States model, Australia has a single, final appellate
court, the High Court of Australia, for both federal and state court systems.
One result of this arrangement is that there is a single common law for the
whole of the country.
A more unusual exception to the US model concerns the monarchy.
Australia is still a constitutional monarchy, with Queen Elizabeth II
as head of state in her capacity as Queen of Australia. She is represented
in Australia by a governor-general, in the Commonwealth sphere, and
governors in each state, who effectively perform all of her functions. This
pattern of representation of the Queen in Australia is consistent with the
dualist model; the monarchy itself, however, is a single institution, with no
greater connection to any one jurisdiction than another. Australia has
already had one failed vote in 1999 to establish a republic. If and when
another attempt is made, it will be necessary to consider how to choose a
republican head of state in a manner that is both sufficiently democratic
and sufficiently federal.
Despite the duality of the institutions of the two spheres of government,
federalism has a very considerable influence on the design of the central
institutions. Most obviously, the Commonwealth Parliament is bicameral,
8 Katy Le Roy / Cheryl Saunders

with a "popular" House, the House of Representatives, and a Senate,

created as a federal chamber. Each original state is entitled to an equal
number of senators (presently, 12) and the powers of the Senate are
almost equal with those of the House of Representatives, with the excep-
tion of certain categories of money bills, which may not be initiated or
amended in the Senate. State governments and parliaments also have
some say over the manner and timing of Senate elections, unlike elections
for the House of Representatives, which are solely within the responsi-
bility of the Commonwealth itself.
Senators are directly elected, on a system of
Despite tha duality
proportional representation, using each state
of tha institutions as a single electorate. As a rule, senators act as
of tha two spheres representatives of their party, rather than as
of government representatives of their state, although presu-
fedoralisana dias a
mably they bring a state perspective to party
very consiterable
deliberations. Within the Senate itself, senators
infauence on thaa typically vote on party lines. Usually, the party
design of the majority in the Senate differs from that in the
central institutions House. In this way, the Senate operates as a
check and balance in the system, blocking some
government initiatives, requiring negotiation
over others, and scrutinizing government action more carefully than is
likely in the House of Representatives. There is a mechanism for the reso-
lution of deadlocks, but it is time consuming and cumbersome, at least for
the purpose for which it was designed.
Australians are divided on the merits of the Senate as a check on the
power of the government in the House of Representatives. Change seems
unlikely, however. A recent attempt by the Commonwealth government to
stimulate interest in altering the Constitution to simplify the deadlock pro-
cedure in a way that would make it more likely that the views of the House
would prevail was unsuccessful. For the moment the question may have
been defused. In 2005, the governing coalition won a majority in the
Senate for the first time in 30 years.
There are other, less obvious examples of federal influence on the
design of central institutions as well. Constituencies for the House of
Representatives cannot cross state boundaries. Each state is entitled to a
minimum of five members in the House of Representatives, irrespective of
the size of its population. The Commonwealth government is required, by
legislation, to consult state governments in relation to High Court appoint-
ments. Many Commonwealth agencies have regional offices in most or all
states. Alteration of the Constitution requires a positive vote at a referen-
dum, with majorities in a majority of states, as well as a national majority.
The formal dualism of the Australian constitutional design is very consi-
derably altered in practice by extensive intergovernmental cooperation.
 Australia 9

Meetings of ministers from all jurisdictions take place at least annually in

most areas of governmental activity. There is now an extensive network of
ministerial councils, supported by intergovernmental meetings of public
service officers and public officials of other kinds including, for example,
parliamentary drafters. At the apex of this complex is the Council of
Australian Governments, or COAG.
Second, there is a considerable fiscal imbalance in favour of the
Commonwealth, which requires substantial transfers of revenue between
the Commonwealth and the states each year. Many of these transfers are
made on condition, for particular purposes. Acceptance of these transfers
theoretically is voluntary. Nevertheless, in this way, the Commonwealth
government and Parliament in fact exercise considerable control over
areas of state responsibility.
In addition, Australia now has in place a wide range of highly complex
intergovernmental legislative schemes, designed to achieve effective uni-
formity of legislation and administration on matters in which the
Constitution divides responsibility between Australian governments.
Typically, these schemes are agreed at meetings of ministers, who generally
can rely on their parliaments to implement them, if legislative action is
necessary. This form of executive federalism is now a pronounced feature
of the Australian federation.
Intergovernmental cooperation in Australia is a response to perceived
demands of efficiency, in a country with a relatively small and essentially
homogenous population of 20 million people. However, given the consti-
tutional structure of the system of government along lines that assume the
responsibility of governments to parliaments and courts within each juris-
diction, some forms of cooperation also create concerns about trans-
parency and accountability, which have not yet been effectively tackled.
 Austria:
Failure of Constitutional Convention;
No Changes for Federal System
ANNA CAMPER

The Republic of Austria is one of the "old" European federal systems. It

was founded in 1918 as the Republic of German-Austria by the Provisory
National Assembly, created out and with the political will of the German-
speaking Lander of the former Austro-Hungarian Empire; it was then re-
established in 1945 at the end of the Second World War. The federal
Constitution, which dates back to the Constitutional Act of 1920, has been
amended many times and also supplemented by numerous, additional
federal constitutional acts and provisions. This is one of the reasons why
Austria convened a constitutional convention in 2003, consisting of 70
experts and functionaries, including representatives of the nine Lander,
and chaired by the president of the Federal Court of Auditors. Its task
was to draft a new federal constitution and to present it at the beginning
of 2005. The intention was not just to create a comprehensive constitu-
tional document, but also to update the substance of the present
Constitution and, in particular, to reform the federal system. However,
the Constitutional Convention failed to effect a compromise between the
 Austria 11

political parties and between the federation and the Lander so that a broad
reform of the federal system seems unlikely at the present time. A parlia-
mentary committee is now expected to tackle some of the reform issues, but
the conservative government faces the difficulty that any constitutional
, reform would need the consent of the main opposition party - the Social
Democrats.
Options for change include a modification of the composition and func-
tions of the Federal Council (Bundesmt), the upper house of the federal
Parliament. The members of the Federal Council are elected by the Land
parliaments, with a system of proportional representation according to the
numbers of Land citizens. As a rule, the Federal Council is only entitled to
object to a bill that passed the lower house (National Council or Nationalraf),
but its objection may be overruled by the National Council with a qualified
quorum. There are only few cases where the Federal Council enjoys the
right of absolute veto, such as a bill that intends to diminish Lander powers.
This right of absolute veto has not been exercised so far and neither, with
very few exceptions, has the right of suspensive veto. This is because the
members of the Federal Council are closely linked to their political allies
in the National Council, which deters them from withholding their consent
to a bill that was approved by a majority of the National Council. The ques-
tion, therefore, is whether another mode of selection (for example, nomi-
nations by Land governors or direct elections by the Land citizens) or a
closer linkage between the Land parliaments and their delegates would
strengthen the representation of Lander interests in the Federal Council.
Another issue is a possible transformation of the system of "indirect
federal administration" into direct Lander representation. Presently, the
Land governors - and the independent administrative tribunals - are able
to perform the major federal administrative tasks on behalf of the fede-
ration. Modifications regarding the allocation of responsibilities could
therefore include an extension of Lander administrative powers, although
this would not compensate for the loss of legislative powers that the Lander
will probably suffer.
Although legislative and administrative powers are shared between the
federation and the Lander, the judiciary remains solely the responsibility of
the federation. This could change, however, as the Constitutional
Convention recommended the establishment of Land administrative
courts. These courts would replace the present independent administrative
tribunals and put the administrative jurisdiction on a more decentralized
footing, rather than being exercised by a central authority, namely the
Administrative Court.
The federal Constitution regulates the system of legislative and executive
governance in the Lander. It determines the selection and role of the Land
parliaments, the Land governments, and Land governors, leaving it, how-
ever, to the Lander constitutions to adopt more detailed or supplementary
12 Anna Ganiper

provisions. In addition to the explicit federal constitutional rules that

apply to the Lander constitutions, the Constitutional Court has repeatedly
applied implicit standards of homogeneity to the Lander constitutions.
Still, their systems of legislative and executive governance do not completely
reflect the system at the federal level. For instance, the Land parliaments
do not have a bicameral structure, nor are the Land governors elected
directly (as the federal president is). The Land governments, including the
Land governors, are elected by the Land parliaments according to either a
proportional or majority election system, whereas the federal government
is appointed by the president. The Land governors render an affirmation
with respect to the federal Constitution to the president before assump-
tion of office.
The Lander are directly represented at the level of the federal legislature
in the Federal Council. Land law-making, in turn, is subject to federal
supervision, which, in some cases, may even prevent a Land law from
entering into force. The federal president is formally involved at the
Lander level, as he appoints the Land Governor and is even empowered to
dissolve the Land parliaments (which in practice has never happened).
Clearly, the status of the Lander would be much weaker were it not for
numerous instruments of intergovernmental cooperation, both legal and
informal, such as Lander conferences, a Lander liaison office, private law
contracts, and public law treaties between the
Clearly, the status federation and the Lander. In the arena of fiscal
of the Lander federalism, where the federation still plays the
Would be much predominant role, the two orders have deve-
Weaker were it loped many instruments of intergovernmental
not for numerous coordination.
instrument of
Although local government constitutes the
intergovernmental
third tier in Austria, the municipalities are not
constituent units of the federal system. Their
cooperation
both legal and basic structure is established by the federal
Constitution, but the more detailed law making
informa.l
on local government is left to the Lander.
Municipal representative associations take part
in cooperative fiscal federalism, but that is almost the only sign of a "three-
layer-federalism."
The Constitutional Convention was confronted with a plethora of reform
options. It will remain a very difficult task to find a suitable solution, which
must combine a federal structure of governance with the challenges of
Et/membership. In particular, this will have vital importance for the future
role of the Land parliaments, as any further decrease of their powers would
throw into question the federal system as a whole.
 Canada:
Federalism Behind
(Almost) Closed Doors
THOMAS O. HUEGLIN

Canada differs from most other established federations, in that it contains

two entirely different views of its federal structure. From the outset, fran-
cophone Quebeckers have understood Canada as a compact between two
equal partners and founding cultures, one French and one English. When
the Canadian federation expanded, from initially four to finally ten
provinces, they saw the compact dissolve into an intergovernmental
numbers game, with the lone French province in a perpetual 9:1 minority
position. For most francophone Quebeckers, in other words, even if they
are not outright separatists, the question of governance cannot be sepa-
rated from the larger issue of Canadian federalism's ability to accommo-
date self-determination.
For most English Canadians, this is not so. They do not see Canadian
federalism as fundamentally flawed or lop-sided. Intergovernmental prac-
titioners will acknowledge that the system is dominated by executive
federalism, and they will add that this is probably inevitable given the
federation's regional as well as cultural asymmetry. The most important
14 Thomas O. Hueglin

political questions affecting the country cannot be decided by the parlia-

mentary process at either level of government. It requires a collaborative
agreement among first ministers: the prime minister, and the provincial
premiers.
Observers may acknowledge the dominance of executive federalism, but
they also deplore its democratic deficit: the fact that the most important
decisions affecting the lives of Canadian citizens are the result of deals
made behind closed doors, with both the public and the process of parlia-
mentary deliberation largely excluded. They are also generally unsure
whether this state of affairs is inevitable, or whether it can be addressed
and alleviated by the reform of other institutions of governance. Canada's
federal system is imbedded with a Westminster-style tradition of parlia-
mentary majority rule that allows for little leeway in the accommodation of
regional or provincial interests. At the same time, the Senate, whose mem-
bers are named by the prime minister, lacks the capacity to give adequate
expression to territorial diversity.
Even after the Americans deliberately broke with British governance
traditions, Canadians remained loyal to them. Canada superimposed the
British parliamentary system with a federal system to accommodate the
divergent interests of English Canada and Quebec. This structure allowed
the two levels of government to operate autonomously within their respec-
tive spheres of powers.
In time, this dual design of Canadian federalism was confronted with
issues of concurrency, the superiority of the federal spending power, as
well as the increasing unwillingness of Quebec to play along within the
confines of the federal system. The parliamentary system is poorly
equipped to deal with this complexity and interdependency. The first-past-
the-post electoral system and the regime of strict party discipline have
reinforced the impression of unmitigated dominance from the centre,
Ontario, the most populous province. First-past-the-post also has the effect of
making each region seem more uniform iij political hue than it actually is.
Added to Quebec nationalism now is an increasingly irritated voice of
Western alienation.
One proposed solution is some variation of a proportional electoral
system, which several provincial governments are now contemplating.
A second area of discussion is Senate reform. Canadian senators are not
only appointed by the prime minister, they also are selected on the basis of
a regional formula discriminating against Western provinces. However,
Western demands for a triple-E senate (directly elected by the citizens,
effective as a second chamber, and equal in the number of senators per
province) have found little support elsewhere in the country. To most
observers, it seems quite unlikely that an American-style senate would yield
what the parliamentary system has been unable to accomplish: patching over
deep regional differences in a pragmatic way of governing by compromise.
 Canada 15

This is why political accommodation at the executive level of governance

remains the quintessentially Canadian way of conducting the business of
federalism.
This more flexible style of treaty federalism, such as in the European
Union, may be a new and trendy way of federal governance. Instead
of upgrading the legislative process in political
decision making, the idea would be to make the Political accommo-
process of executive governance more transpa- dation at the exe-
rent and inclusive. This might be accomplished cutrve level of
by simply opening up the process to the public - government remains
although it is the secrecy of "first minister" nego- the quintessentially
tiations that most likely allows them to reach Canadian way
compromise. of conducting
The recent creation of a Council of the the business of
Federation among provincial and territorial federalism
premiers may bring a more rational mode of
decision making. With a permanent secretariat
and a steering committee headed by senior public servants, an institutional
organization has been put into place that could prepare ministers' meetings
more pragmatically on an on-going basis. The Council of the Federation
will have difficulty in overcoming the notorious ills of Canadian intergo-
vernmental relations: federal-provincial confrontation and gridlock.
Following the European model, it will have to abandon the old consensus
model and move towards some form of qualified majority voting.
Finally, there is a general sense of urgency with regard to the under-
developed local dimension of federalism. Most Canadians today live in
large urban areas with their specific range of problems. All municipalities
remain administrative creatures of the provinces, subservient to provincial
agendas and increasingly dependent on federal spending largesse. A formal
place at the intergovernmental bargaining table remains in the realm
of wishful thinking. The same can be said about the question of self-
government for Canada's more than one million Aboriginal peoples.
Governance participation for the most part remains at the level of bilateral
consultation and treaty negotiation, at the discretion of the federal
government. Innovative patterns of joint governance can only be found
in the territories, and those are mainly in the realm of economic develop-
ment projects.
 Germany:
Balancing Bundestag against Bundesrat
and Governments against Legislatures
STEFAN OETER

The German federal system has for decades been perceived as a success
story because it helped to integrate the diverse segments of post-war
Germany and safeguarded Germany's multifaceted political, economic,
and cultural structure. The federal system has also played an important
part in successfully integrating the eastern part of Germany, the former
German Democratic Republic. Since the 1990s, however, there has been
a growing feeling of discontent among the general public as well as among
political elites. The federal system is perceived as a source of political para-
lysis. Public demands for reform in the political setup and in economic
legislation end up in a quagmire of contradictory tactical moves by the
political parties, which usually block each other effectively.
The obstacle to any kind of reform is the difference in majorities
between the Bundestag, the directly elected federal legislature, and the
Bundesrat, which represents the Landerat the federal level. In the Bundesrat,
the parties in opposition in the Bundestag have a majority - a situation not
foreseen in 1948 when drafting the Constitution, but typical for the last
 Germany 17

three decades. This discrepancy of majorities does not create serious

problems for ordinary legislation, since the governing majority in the
federal Parliament can outvote the veto of the Bundesrat in cases of ordinary
legislation. For some categories of legislation, however, the Bundesrat can
block statutory law-making after the Bundestag has approved a law. These
stand-offs derive from the mutual dependency
between the federation and its member Lander. public demands
One important area of joint governance is for reform in tha
the financial structure of the federal system. The political setup and
Lander have no real autonomy in financial in economic legis
matters, but depend on taxes shared with the latiou end up in a
federation and legislated by the federal parlia-
quagmire of contra
ment. As compensation for such dependency, dictory tactical
the Bundesrat has a full veto in legislation on moves by the poli-
these taxes.
tical parties, Which
The other crucial area of joint governance
usually block each
is the field of administrative organization and other effectively
procedure. Most federal statutes are implemented
by Land administrations and the federal execu-
tive has only a few branches of direct administration. Because the federal
government has a strong interest in influencing the patterns of imple-
mentation, the federal legislator can regulate issues of administrative
organization and procedure. However, the price paid for this federal intru-
sion is again the full participation in law making in these cases by the
Bundesrat, which can veto a law approved by majority vote in the directly
elected Bundestag.
The use of this instrument has led to a significant growth of statutes
depending on consent of the Bundesrat. Originally conceived as an excep-
tion, such legislative stand-offs have become a common phenomenon in
legislative practice, making up more than 50 per cent of the statutes
passed. Current debate on federal reform concentrates very much on this
phenomenon, together with a revision of the distribution of legislative
jurisdictions. The major political forces have set up a bicameral reform
commission to prepare a proposal for federal reform. The efforts of that
reform commission, however, have to-date ended in deadlock.
In order to solve the problem of "excessive" veto powers, the reform
commission discussed whether the Lander should unilaterally modify the
standards of administrative organization and procedure set in federal
legislation. In exchange for this right, the Lander probably would be willing
to give up the veto power concerning statutes regulating administrative
organization and procedure. Federal ministries are strongly opposed to
this idea, but it seems to contain the nucleus of a compromise.
The Bundesrat is an institution with no parallel in most of the other
federal systems. It is a historical legacy from the first federal government
18 Stefan Oeter

constructed between 1867 and 1871 under the Kaiser by Chancellor Otto
von Bismarck, and is composed of members of Land governments,
who vote as a group for their own Land. It does not play a decisive role in
drafting legislation, but is extremely important in giving states a voice in
federal decision making. If the Bundestag and Bundesrat insist on different
proposals, the task of drafting a compromise is shifted to a specific com-
mittee of mediation formed by members of both houses. This body, the
so-called Vermittlungsausschuss, constitutes a kind of "black hole" for poli-
tical transparency, since its negotiations are secret and the Bundestag and
Bundesrat can only accept or reject its proposals as a whole. The entire
system blurs political responsibility and forces political actors to enter rou-
tinely into more or less arbitrary package deals.
Whereas the federation and states are inseparably intertwined in the
system of legislative governance, the structures of executive governance
are more clearly separated. The administrations of the Lander manage
most issues of routine administration, with only a few fields of direct
administrative jurisdiction for the federal government. The balance has
been shifting in recent years, however, due to the creation of new regula-
tory agencies of the federation in fields of telecommunications, postal
services, energy services, and others. The Lander are now afraid that they
might lose their decisive role in executive governance in the long run.
The development of European integration is an additional factor inten-
sifying fears of a loss of autonomy. With the growth of European commu-
nity law, more and more areas under Land control are regulated in
Brussels. In the European decision-making processes, however, only the
federal government represents the Lander. Several compromises entered
into by the federal government to the detriment of the states have created
a strong suspicion by the Lander towards European politics. In 1994, the
Lander managed to introduce a new "European clause" into the federal
constitution that was intended to safeguard their participation in
European issues. However, the general impression now is that these safe-
guards do not really work and that the mechanisms of consultation and
participation have no real impact. The bigger Lander have changed to a
policy of direct lobbying in Brussels, building up Land representations to
a significant size and expertise. For the small constituent states, however,
this will not be an affordable strategy.
 India:
An Ongoing Experiment
to Redefine Federalism
RAJEEV DHAVAN AND REKHA SAXENA

The Indian Constitution was enacted in 1950, after four years of delibera-
tion, to cater to the governance of what was then a population of 361 million.
The nation consisted of an immense array of peoples from religious, lin-
guistic, ethnic, caste, and community backgrounds reflecting great eco-
nomic differentials. Fifty-five years later, with the population increasing to
well over a billion, India has become like a microcosm of the world itself.
India's federal system was based on the British Government of India Act
1935, which was designed to deal with issues of law and order and revenue
collection. Following the British design, the Indian Constitution created a
strong, centralized federalism with room for flexibility to re-write both the
geography of Indian federalism as well as the distribution of power within it.
The power to re-write the geography of Indian federalism was reposed in
the Union - or federal - Parliament at the centre which, by simple legislation,
could create new constituent units and abolish old ones. This was necessary
to absorb the erstwhile princely states as well as to meet regional demands
for recognition. The Union Parliament, with scant consultation of the state
20 Rajeev Dhavan / Rekha Saxena

legislatures, created new states out of the old seven times between 1956 and
2000 on a linguistic and cultural basis so that India now has 28 constituent
states and seven union territories. The states are self governing members
of the federation. The union territories are directly governed by the Union
government although two union territories, Delhi and Pondicherry, have
elected assemblies with limited devolved powers. Although the power of
the Union Parliament to re-draw the boundaries of the state has attracted
academic criticism, the actual exercise of this power has allowed India to
give a multicultural dimension to its federal governance.
The division of legislative power between the Union and the states has been
heavily weighted in favour of the Union to serve the interests of planned
development - both in terms of the distribution of power as well as the capa-
city to raise finances. Under the Constitution, the distribution of the Union's
revenues has been entrusted to a Finance Commission whose members are
appointed by the Union. In the year 2000, the financial entitlements of the
states were enhanced by constitutional amendments. But, it is the aforemen-
tioned Finance Commission that decides how Union revenues are distributed.
In its actual working India has lively legislatures; however, there has been a
decisive shift from legislative to executive federalism, run by elected politi-
cians and permanent civil servants within a parliamentary style system - both
at the Union and state levels. In addition to the executive sweep of federal
legislation, it is executive bodies appointed by the Union, such as the
Planning Commission and the National Development Council that have
been responsible for future socio-economic planning. Union and state
governments and bureaucracies interact with each other informally. While
the Constitution made provision for an interactive inter-state council, such
a body was created only in 1990. It has proved to be unwieldy, exercizing
no power and little influence. The Union's power and influence has been
enhanced greatly due to the pressures of globalization, its treaty-making
powers, the World Trade Organization treaty, regional treaties such as
the South Asian Association for Regional Cooperation (SAARC), and the
problems and possibilities created by cross-border terrorism, migratory
movements, and foreign investment trade.
The Constitution gave the Union a vast "emergency power" to declare
national emergencies and "President's Rule," the latter resulting in the
takeover of the legislature and government of any particular state. An
external national emergency was declared in 1962 due to the India-China
War. In 1975-77, an internal national emergency enabled extensive powers
to be reposed in Indira Gandhi's Congress government. During such
national emergencies, the legislature and executive of a state continue to
function. However, under President's Rule, the state's legislative and executive
branches cease to function and the state is run by the Union legislature and
executive through an unelected governor of the state, who, in any event,
is a Union nominee. The President's Rule provisions have been indiscri-
 India 21

minately abused; some 100 impositions of President's Rule have been

imposed on various states - mostly to ensure that opposition governments
in the states are removed from office. Such impositions continue albeit
with much greater restraint due to a Supreme Court judgment of 1994,
which opened up the possibility of judicial interference to strike down any
unconstitutional abuse of the President's Rule power.
In 1994, the Supreme Court declared federalism to be part of the inviolate
basic structure of the Constitution, which is fundamental to Indian gover-
nance and cannot be changed even by constitutional amendment. But
changes have been made both to strengthen the Union's power and to give
some respite to the states on the distribution of revenues. Not surprisingly,
various states - especially Tamil Nadu in 1971 and West Bengal in 1978 -
have asked for more power and more finances. This found some reflection
in the Sarkaria Commission "Report on Centre-State Relations" (1988)
which, while sensitive to the demands of the states, did not seek to greatly
alter the status quo but called for greater constitutional discipline.
Indian federalism started on the assumption that the legislatures would be
firmly in charge of federal governance. However, this has globally proved not
to be the case. A stable parliamentary system also produces strong executives
that are constitutionally empowered to act both in their own right and to im-
plement legislation. Inevitably, federal governance slips into executive hands,
but to a lesser extent than may be believed. In every democracy, all govern-
ments have to face the electoral ballot and cater to
diverse demands. Accountability to the legislature Indian federalism
has been strengthened in various ways. But, most starded on the
importantly, executive governance has also been assumption that
forced to respond to the people through new me- the legislatures
chanisms of accountability devised by the media, Would be firmly in
social activism, freedom of information regimes, Would be firmly in
and elections in both the states and the Union. In
governance. The
India, the 1992 amendments to the Constitution irresistible rise of
have also brought power closer to the people by executive federalism
imposing a mandatory three tier local government cannot ignore the
on the federal structure. The irresistible rise of no less irresistible
executive federalism cannot ignore the no less
demands for demo-
irresistible demands for democratic governance. cratic governance
But, clearly the older mechanisms for distributing
power and responsibility between the Union and
states whilst leaving it to the judiciary to resolve disputes is not enough. Both
executive federation as well as overt and covert mechanisms for inter-state
interaction have to be recast within a framework of democratic accountabi-
lity. This, then, is the challenge for the future - reconciling federalism to
democracy. Perhaps, it is in this sense that an Indian Supreme Court judge
asked if India's Constitution is constantly in a state of being or becoming.
 Nigerian Federalism
at the Crossroads
EBERE OSIEKE

Nigeria attained political independence in 1960, but like many other

countries in Africa, and even Latin America and Asia, it has not enjoyed
uninterrupted democratic governance since that time. The military has
intervened so many times that out of the 45 years of sovereignty, a demo-
cratic system of government has operated for only 15 years. Significantly,
the first major action of the military regimes once they had seized power
was to abolish the legislative and executive arms of the government by
suspending the parts of the Constitution that relate to them. Thus, when
reference is made to legislative and executive governance in Nigeria, it is
to a very short period of time, but one filled with both turbulence and
legal and constitutional growth.
Nigeria's Constitution from independence introduced a parliamentary
system of government - popularly known as the "Westminster Model" -
which lasted until January 1966 when the military took over power. When
the military left in 1979, Nigeria changed to a presidential system of govern-
ment borrowing from the model of the United States of America, but it
practised the system for only four years before the military again seized
power, accusing the civilian government of mismanagement, incompe-
 Nigerian Federalism 23

tence, and corruption. A new democratic govern- Thus when refe

ment took office in Nigeria on May 29, 1999,
rence is made to
with Chief Olusegun Obasanjo (a retired army
legislative gover
general and, at one time, Nigeria's military head
executive gover
of state) as the president of the country. The nance in Nigeria
question of a parliamentary versus presidential it is to a very short
system is still at issue today.
period of time. but
The Nigerian Federation is now composed of one filled with both
36 states and a federal capital city, Abuja. There turbulance and
is an elected national legislature, made up of the
Senate and the House of Representatives, as well legal and constitu
as a federal judiciary. All the states are headed by tional growth
a governor, who is the chief executive and who
exercises the same functions and responsibilities for the state as the presi-
dent does for the Nigerian Federation. Each state has a unicameral legis-
lature and a judiciary.
No serious constitutional problems have arisen within the states with
respect to legislative and executive governance, with the exception of
two or three cases of impeachment of deputy governors and one case
involving a governor in the state of Anambra. There have been a number
of controversies relating to the exercise of legislative and executive powers
at the federal level.
In the year 2000, the president, in the exercise of his constitutional powers,
modified an existing law to bring it into conformity with the provisions of
the 1999 Constitution, but the legislators claimed that he had performed
a legislative function and had usurped their powers. Also, in May 2004, the
president proclaimed a state of emergency in Plateau State in north-
central Nigeria, and suspended both the governor and the state legislature
for a period of six months. Many commentators asserted that his actions
were unconstitutional.
The legislature has also been accused of exceeding its powers on a number
of occasions. In 2002, some state governors challenged the Electoral Act
of 2001 adopted by the federal Legislature on the grounds that it was
unconstitutional because it, among other things, extended the tenure of
local government chairs to four years from the three years specified in the
Constitution. The Supreme Court upheld the objection and declared the
relevant parts of the act inoperative.
The lessons that Nigerians have learned from legislative and executive
governance in the six years of democratic rule since 1999 is that th
president wields enormous powers and that there is over-concentration of
powers at the centre. This situation has made the post of president and
membership of the federal Legislature very attractive. People from different
parts of the country now vie to produce the president-sometimes quite
fervidly. Up to now, the federal structure which the British colonialists
24 Ebere Osieke

bequeathed to Nigeria, whereby the North alone is bigger than the East
and the West combined, had not made it possible for every part of the
country to produce the President. This was because the North traditionally
voted as a block in a presidential election to produce the automatic majority
required to elect the president.
In recent years, however, as a result of the general dissatisfaction
expressed by various parts of the federation against Nigeria's existing
federal structure, a consensus has emerged to divide the country into six
geo-political zones: namely, North Central, North East, North West, South
East, South South, and South West. The main advantage of the zones is to
create a distinct identity for the minorities in the North, who would be in
the North Central zone, and those in the East and West, who would be in
the South South zone. Another advantage of the proposal is that the post
of president would rotate among the zones so that every part of Nigeria
would have the opportunity to produce the president, which is viewed as a
post that will improve the lives and welfare of the people of the zone from
where the president is elected.
Many people, however, would prefer the division of the country to be
into regions. They believe that the six geo-political zones could be turned
into regions with prime ministers, regional parliaments, and regional
ministers, and that the six regions would then constitute the federating
units, while the present states would become administrative units. The new
regions would have autonomy to manage their affairs and natural
resources, and to maintain their security. The powers of the central
government would be reduced and passed to the regions.
There are also proposals arguing that the president should have only a
single tenure of six years, while state governors should have one term of
only five years, instead of the present two terms of four years each for both
offices. If these measures are accepted and implemented, the powers of
the president and the state governors would be considerably reduced and
the positions would become less attractive.
There is a division of opinion on the question of whether Nigeria should
continue with the presidential system, go back to the parliamentary
system, or adopt a mixture of the two. Some people feel that the parlia-
mentary system is best for Nigeria because it is cheaper to run, enhances
democratic development and accountability, and promotes legislative and
executive cooperation. Those supporting the presidential system maintain,
however, that the'parliamentary system was tried for six years from inde-
pendence, but failed, while the presidential system has been surviving for
over 10 years, and should be continued.
There is no doubt that federalism in Nigeria is at a crossroads at the
moment. The search for a true and acceptable structure continues, while
the country copes as best it can.
 The Russian Federation under Putin:
From Cooperative
to Coercive Federalism?
ALEXANDER N. DOMRIN

Russia's highly complex federal structure has become a significant problem,

but one that could soon be addressed by imminent reforms. Re-elected in
March 2004, President Vladimir Putin has begun his second term with a
sweeping initiative to redistribute powers between the central government
and the regions and to reduce the number of constituent units in the
Russian Federation. The current changes are a continuation of Putin's
attempts to strengthen the federation from the centre and to establish
stronger "vertical power" in the country.
The adoption of the 1993 federal Constitution eVEN THOUGH COM-
is not a culmination of Russian history or of p l e t e a b a n d o n m e n t
Russia's constitutional development; rather, it of federalism in
was the beginning of Russia's experiment with Russia is very
federalism. Even though complete abandon- unlikely in the fore
ment of federalism in Russia is very unlikely in seeable future the
the foreseeable future, the current expansion of
current expansion
federal government activity in virtually all of federal govern
spheres of life could be considered a sign of ment activity in vir
Russia's transition from "cooperative" federalism tually all spheres of
(based on treaties between the federal centre life could be con
and subjects of the federation) to "coercive" fede- sidered a sign of
ralism (based on the federal Constitution and Russia's transition
strict compliance of the federation units with it). rom "cooperative"
The Russian Federation is a presidential re- ^federalism
lfsfeft^ to
;K"coc
^^
public. The Russian president - proclaimed the tive federalism
'$*¥£&'•$&&'#££$!&:
"guarantor" of the Constitution and of the rights
and freedoms of citizens - is the head of state
representing the Russian Federation within the country and in interna-
tional relations. He or she is empowered to take measures to protect the
 The Russian Federation 27

sovereignty of the Russian Federation, its independence and state integrity,

ensure the coordinated functioning and interaction of agencies of state
power, and to determine the basic orientations of internal and foreign
policy of the Russian Federation in accordance with the Constitution and
federal laws.
There are three different court systems in Russia: 1) the Constitutional
Court (created in 1991); 2) "regular" courts or the courts of general juris-
diction (including military courts); and 3) arbitration courts (arbitrazh)
or commercial courts. It is important to underline that Russia doesn't have
a single highest court of the country. All three highest courts - the
Constitutional Court, the Supreme Court (the highest court among courts
of general jurisdiction), and the Supreme Arbitration Court - enjoy similar
status.
Russia's Parliament became bicameral after the 1990 constitutional
amendment, shortly before the disintegration of the Soviet Union, and
the 1993 Constitution kept its bicameral structure. The Parliament, or
Federal Assembly, is composed of two chambers: the State Duma and
the Federation Council. The State Duma consists of 450 deputies; the
Federation Council, of 178 members (sometimes called senators), two
from each of the 89 subjects of the Russian Federation.
The Constitution divides all subjects of the federation into three main
groups: republics; national-territorial units (known as autonomous regions
and autonomous areas); and administrative-territorial units (which
includes regions, territories, and the country's two federal cities, Moscow
and St. Petersburg). The units themselves are formally defined as "subjects"
rather than constituent units of the Russian Federation. The Constitution
grants equal rights and responsibilities and full state power to all of
the country's 89 component units. In practical terms, though, some
subjects enjoy that power much more than others. This makes Russia an
asymmetric federation.
Issues of federalism are among core elements of recent far-reaching
reforms in Russia. First, a proportional election system was introduced for
the State Duma; the next Duma will be elected in accordance with party
ballots alone. This new law provides that each political party must have at
least 50,000 members, with regional chapters boasting at least 500 people
each. Second, the regional election system was overhauled. New electoral
laws state expressly that from now on, all territorial governors shall be
elected by territorial legislatures in line with presidential recommendations.
Third, Russian authorities began the process of merging some of the
country's federal units. The latter two of these reforms are discussed below.
The Russian federal government has taken a number of measures aimed
at elimination of "ethno-territorial federalism" in the country, changing
the status of ethnic republics and bringing them down to the level of
ordinary Russian regions. The Duma has passed a law that gives the presi-
28 Alexander N. Domrin

dent authority to remove popularly elected regional leaders, including

presidents of ethnic republics. Further, with the aim of merging ethnic and
non-ethnic entities within federal districts, Russia has been divided into
seven federal districts, each comprising about 10 to 12 subjects of the
federation. The districts are supervised by representatives of the Russian
president.
The 2004 Beslan tragedy, in which Chechen and Ingush terrorists took
about 1,200 hostages at a school in the town of Beslan, killing 330 people
(a third of them children), prompted Putin to initiate new reforms for
regional authorities. The president proposed appointing governors
instead of electing them by direct vote, along with other initiatives
designed to mobilize the society, strengthen the Russian state, improve
administration of subjects of the Russian Federation and make them
capable of responding appropriately to modern threats and challenges.
On December 7, 2004, the Federation Council approved new legislation to
eliminate direct gubernatorial elections across the country. Since the new
regulation came into effect, 18 Russian governors have been re-appointed
by the president and four have been dismissed. These moves towards the
greater centralization of power are seen by the Russian federal govern-
ment, its political elite, and the general public as being necessary in order
to keep the country together.
On July 2, 2005, President Putin announced his plans to sign a decree
that will return to governors many of the powers that had been taken away
from them as a result of Putin's regional policies. Addressing a session of
the State Council in Kaliningrad on the subject of improving federal rela-
tions, President Putin emphasized that the delegation of additional powers
to the regions was not a goal in itself but rather a step aimed at helping
secure economic growth in the regions. The powers to be delegated
include authority over forestries, environmental policy, cultural land-
marks, education, and science. According to Russian observers, overall the
latest Putin initiative will return to governors 114 of their original powers.
However, this new approach of restoring power to the governors doesn't
contradict a more general centralization tendency in the country.
Moreover, Putin's aforementioned "Kaliningrad report" supported an idea
of establishing direct federal rule in financially insolvent regions. Failure
of the regional authorities to effectively use their numerous powers and
ensure the proper use of funds allocated to the regions aggravates eco-
nomic problems in the region, increases the unemployment rate, and
eventually strengthens extremism. These arguments rationalize the belief
that direct federal rule from Moscow would be a necessary and justified
measure.
 South Africa:
Provincial Implementation
of National Policies
CHRISTINA MURRAY

South Africans agree that change is essential and that it is not happening
fast enough. Too few people have shelter, water, and access to basic health
care and too many people are malnourished, uneducated, and unem-
ployed. Provinces are key to dealing with these issues. Altiiough the national
government sets national policy, provides virtually all the financing, and
prescribes the standards to which provinces must adhere, it is provinces
that are expected to implement change.
The system of shared responsibility between provinces and the national
government requires a great deal of cooperation between the two spheres.
Will the emerging practices of government in South Africa's new multi-
level system ensure that cooperation occurs and that both the national and
provincial governments can contribute in ways that strengthen democracy
and contribute to the eradication of poverty?
Each of South Africa's nine provinces has a fully-fledged legislature and
executive on the parliamentary model. However, the central government
is very strong. It has power over all but a short list of functions reserved for
gp gfdghghghghghh

provinces and local government. The provinces do have the power to

legislate on a list of matters critical in a developing country (such as edu-
cation, health, and housing), but they share this authority with the central
government and their main role is to implement the policies of the national
government.
The decision to vest considerable power in the central government was
in response to the massive transformation needed to undo the legacy of
South Africa's apartheid past. The consensus has
Will the emerging been that the transformation could not be ad
pratices of govern hoc or dependent on the resources and commit-
;
ment of individual subnational governments.
ment in South
Africa's new multi Nor could the redistribution of wealth and
opportunity be limited by provincial boundaries.
lavel system ensure
that cooperation It must be countrywide.
occures and that A provincial chamber in the national Parliament,
both the national the National Council of Provinces (NCOP), has
and provincial been established to ensure that provinces partici-
governments can pate in the passage of the national laws that the
contribute in ways provinces must implement. In the National
that strengthen Council, each province has one vote and the sup-
democracy and port of five provinces is needed for a bill to pass.
contribute to the In addition, the Constitution establishes
eradication of "cooperative government" as an overarching
principle of government. In all their activities,
poverty
the national government and provinces must
consult and cooperate. This means that execu-
tive intergovernmental relations, which have become a characteristic of
federations worldwide, are formally required by the Constitution. When
the national government develops policy in an area in which it shares
responsibility with provinces, it discusses the policy with provinces at execu-
tive intergovernmental forums on an ongoing basis. To clinch this consti-
tutional commitment to cooperative government, the Constitution also
forbids a court from considering a dispute between governments, unless
adequate attempts have been made to resolve the matter outside court.
Despite the commitment to cooperative government in the Constitution,
many people think that federalism and the provincial system are not
working. They point to relatively inactive provincial legislatures, the weak-
ness of provincial administrations, the failure of the provinces to influence
national policy through the NCOP, and the absence of any evidence that
the distinct views of provinces are heard in policy debates.
Of course, shared powers and a strong commitment to cooperative
government do not on their own determine the pattern of executive and
legislative government. Three other aspects of South Africa's political
landscape are critical to understanding current patterns of government.
 South Africa 31

First, South Africa is a one-party-dominant system heavily influenced by

its Westminster origins. The African National Congress (ANC) controls the
national government with an overwhelming 69 per cent majority of the vote
in 2004 and it controls all nine provinces. In addition, party discipline -
and loyalty - is strong. The individuality and innovation that a multi-level
system is expected to bring has yet to be seen.
Second, apartheid left South Africa with a ragged and racially struc-
tured government infrastructure and very few skilled administrators.
Governments at all levels, but particularly in provinces and municipalities,
struggle with a lack of human capacity. For many, simply keeping up with
the most basic responsibilities is a challenge. Effective participation in
complex negotiation required to develop the multi-level system is beyond
reach.
Finally, the beginnings of the system of multi-level government in South
Africa were not auspicious. The governing ANC opposed the provincial
system from the outset. Most people, including members of the political
elite, remain unenthusiastic about it. It is viewed as an unwelcome compro-
mise made to secure peace in the country at the time of transition.
Each of these features has a centralizing tendency. The system is con-
trolled from the top and many provincial ministers regard the national
minister for their line function as their "boss." The relative inactivity of
provincial legislatures encourages provincial departments to view them-
selves as agents of the central government, whose main role is to imple-
ment national legislation. This is reinforced by the fact that provincial
premiers are "deployed" to the post by the national ANC; they do not gain
office through autonomous politics at the provincial level. Real confusion
also exists about accountability. If provincial ministers are responsible for
implementing national policy, to who are they accountable? What is the
role of the provincial electorate and legislature?
For some, the failure of provincial governments, and particularly
provincial legislatures, is a fatal flaw of the system, because it means that
multi-level government fails in one of its most important goals, which is
to deepen democracy and thereby enhance accountability. For others -
perhaps the more pragmatic - it reflects a compromise of regional account-
ability in favour of more efficient government that is appropriate in a
young democracy with massive developmental needs.
 Switzerland:
Cooperative Federalism
or Nationwide Standards?
WOLF LINDER AND ISABELLE STEFFEN

In many respects, Switzerland owes its identity to its political institutions.

In 1848 trie founders of the Swiss nation state were not able to build on
a common culture, but were faced with the peoples of 25 cantons with
different historical backgrounds, speaking four languages, and following
different religions. The solution proved to be a combination of democracy
and federalism, which still today are at the centre of the Swiss political
system. While this institutional design has proved to be rather successful
for the past 150 years, it faces new challenges today.
The core element of Swiss federalism was and is the autonomy provided
to cantons for organizing their own affairs. It allows the cantons to consider
specific cantonal matters and to solve problems on their own. As a conse-
quence, the differences among the cantons are substantial, involving poli-
tical institutions, the interaction among political actors, and the output
resulting from these political contests. For example, there are significant
differences in tax burdens and income levels. However, this high degree of
cantonal diversity is being questioned today for several reasons.
 Switzerland 33

First, some cantons call the decentralized structures basically inefficient,

in the sense that they are too small to undertake large projects are their
own. Some economists and political scientists believe that the major problem
is not the fact that there are too many cantons, but that they are very
unequal in size. This leads to a different level of service and infrastructure.
For example, a small canton does not have the capacity to provide com-
plex services such as universities or specialized medical centres. Often
smaller cantons have arrangements with bigger cantons who provide them
with the more complex services of education or health. In other areas like
culture or family policy, however, smaller cantons have lower levels of infra-
structure and poor cost/benefit ratios for some of their services.
If the federal level provided a policy or at least general standards, it
could help to equalize the costs from and the supply of public services
between the cantons. However, this would encounter a lot of opposition,
as there is no consensus on what would be centralized. Furthermore,
cantonal governments insist on their quasi-
statehood, and they protect not only their own So for tha time
political organization but also their own political
being it appea
autonomy. So for the time being, it appears that
that tha majorrity of
the majority of politicians and people still prefer politicians and peo-
the decentralized solution, demanding cantonal ple still prefer the
autonomy and accepting the possible disadvan- decentralized solu-
tages of diversity.
tion, demanding
The second point focuses on the relationship cantonal autonomy
between the cantons and the federation. Histo-
and accepting the
rically the distinction and division of power
possible disadvan-
between the federation and the cantons was tages of diversity
clear. Today the complexity of modern infra-
structure, society, and economy makes it neces-
sary to cooperate. Most of the federal legislation is implemented by the
cantons, accompanied by extensive cost and revenue sharing. However,
this "cooperative federalism" is not free from problems. On the one hand,
the implementation of federal policies increases the canton's political
influence and weight. On the other hand, cantons feel their autonomy is
in danger if the federal legislation gets too extensive, giving no cantonal
leeway and thus leading to an informal centralization. The cantons are
very skeptical about uniform policies, because it is the ability to live diffe-
rently from each other that has made the federal union successful.
A third area of contention deals with the political relations between the
cantons and the federation. At the beginning of the Swiss federation in
1848, it was essential to integrate the cantons into the federal decision-
making system and to give them a voice in national affairs. This was accom-
plished by setting up two chambers of parliament, with a Council of States
(the Stdnderat) where each canton has two seats independent of its size,
34 Wolf Under / Isabelle Steffen

and a National Council (the Nationalraf), directly elected by proportional

representation. To become binding, a law has to be accepted by both
chambers.
However, this influence of the cantons in national affairs is still
controversial. Some say that the small cantons - profiting from their more-
than-proportional representation - have too much influence on federal
policies. Others complain that the Council of States is not a truly federal
chamber, because it votes along the same lines of interest - and party -
affiliation as the National Council. The cantons are therefore demanding
more influence at the national level, be it in matters of cooperation with
the central government or even in questions of foreign policy.
One of their most successful actions has been the creation of a
"Conference of the Cantonal Governments." In the last 10 years, this body
has become not only a successful lobby by the cantons, but also an impor-
tant partner in dialogue with the central government. The Conference of
the Cantonal Governments has certainly strengthened the voice of the
cantons - but only in areas where there are common cantonal interests.
However, the legitimacy of this body is often criticized. The Conference is
based only on the collaboration of cantonal government leaders, while
cantonal legislatures, representing the people, do not participate. Inter-
cantonal cooperation among parliaments is therefore an important issue
on the federal agenda.
The federal structure was established 150 years ago as a political com-
promise between the progressive, mostly Protestant radicals that wanted a
strong nation state and the rural, mostly Roman Catholic conservatives
that wanted no federation at all. It was therefore a key to nation-building
and to the development of a Swiss identity. Since then, Switzerland has
developed into a modern society, in which most historical conflicts have
vanished. Still, the peoples in the cantons want to be different from each
other: cantonal autonomy and self-determination are highly praised
values. This helps people to overlook the severe shortcomings of some
federal structures and procedures. In this sense, Switzerland's symbolic
and integrating values have become strong barriers to institutional
reforms, even though many might make sense from a rational point
of view.
 Contemporary Debates about
the US Presidency and Congress:
The Electoral College,
Legislative Gerrymandering,
and Enumerated Powers
JOHN DINAN

Although US legislative and executive institutions have been remarkably

stable over time, several recent developments have given rise to debates
about particular aspects of these institutions. The fundamental questions
of institutional design have long been settled, such as the choice of a presi-
dential system, with the president selected independently of Congress.
There has certainly been no reconsideration of the decision to establish
a bicameral Congress, with the states entitled to equal representation in
the Senate, and the House of Representatives apportioned among the
states by population. Nor are there any challenges to the constitutional
arrangement by which Congress possesses enumerated, rather than ple-
nary powers, with other powers reserved to the states. In recent years,
36 John Dinan

though, there has been some discussion about specific aspects of these
arrangements, including the presidential selection system, the drawing of
district boundaries for the House, and the Supreme Court's enforcement
of the limits of congressional power.
The presidential selection system has attracted the most attention of any
of these institutions, particularly after the year 2000 election. The framers
of the Constitution determined that the president would be selected neither
by the legislature nor by a direct popular vote, but rather by an Electoral
College. According to this system, each state has a number of electors
equal to its numbers in Congress; thus a total of 538 electoral votes are
apportioned among the 50 states (plus the District of Columbia), with the
smallest states receiving three electoral votes and the largest state,
California, receiving 55 electoral votes. Presidential candidates then
compete for the 270 electoral votes needed to win the election by cam-
paigning in the various states, which in all but two cases award the entirety
of their electoral votes to the winner of a plurality of popular votes in the
state. (Maine and Nebraska allow for a division of their electoral votes, with
both states awarding two of their electoral votes to the winner of the state-
wide popular vote, and then awarding each remaining electoral vote to the
candidate who wins the popular vote in each representative district)
This system gives the states a prominent role in presidential selection,
but it also encourages presidential candidates to focus almost all of their
attention on the 15-20 largest, most competitive battleground states, to the
exclusion of the others. More importantly, a candidate can win a plurality
of the popular votes but lose the election to an opponent who captures a
majority of Electoral College votes. This was what happened in 2000, when
Al Gore won 500,000 more popular votes than George Bush, but lost the
election because Bush won five more electoral votes. Though not the first
time that the winner of the popular vote has lost
i^Mll57*^l Kf^p^W?if!
the election, this was the most controversial, and
it has generated renewed demands for various
a plurality of the
alternatives to the Electoral College. A variety of
popular votes but
lose the election to reforms have been proposed - such as instituting
an opponcut who a direct popular vote or encouraging more states
to allow their electoral votes to be split among
captures a majority
candidates - but critics of these reforms argue for
of Electotal College
the importance of considering the various effects
votes
of each proposal on the federal system. In parti-
cular, would alternatives to the current system
lead presidential candidates to campaign and govern in ways that would be
less responsive to state and local concerns? And would these proposals
make it easier for candidates to win with the support of much less than a
majority of the populace, and thereby encourage the creation of multiple
parties, some of which might be geographically based?
 Contemporary Debates 37

Reformers have also focused recently on congressional elections, and

particularly on the process by which House districts are drawn. This is
not an issue in the Senate, because Senators are selected on a statewide
basis. However, House districts are redrawn every 10 years, and this respon-
sibility is vested in state legislatures. To be sure, Congress and the Supreme
Court have imposed limits on the redistricting process. Districts must be
compact, contiguous, and of equal size. Otherwise, state legislatures enjoy
a good amount of discretion drawing House districts.
The concern in recent years is that state legislatures are abusing this
discretion by relying on computer technology to draw House districts that
are completely safe for incumbents of one of the two major parties, a
practice called gerrymandering. Consequently, House races have become
increasingly uncompetitive, so that fewer than 40 of the 435 contests are
in any doubt each election. House incumbents are already almost imper-
vious to defeat (rarely has their re-election rate fallen below 90 per cent
in recent decades), but partisan gerrymandering has worsened this situa-
tion, and it has made House members less moderate and less open to
compromise once in office. As a result, judges have been called upon
to become more involved in drawing district lines, and proposals have
been advanced to create independent redistricting commissions or
other non-partisan means of restoring competition to congressional
elections.
A third issue that has attracted attention in recent years concerns the
extent of congressional power in comparison with those of the states.
Delegates to the federal convention of 1787 provided that Congress would
exercise enumerated powers, and the 10th Amendment in 1791 confirmed
that powers not delegated to Congress are reserved to the states. The
challenge throughout American history has been to determine which
acts of Congress are legitimate exercises of these enumerated powers.
Since the mid-1990s, the Supreme Court has been aggressive in striking
down acts that exceed these powers. Among the statutes invalidated
during this period were popular laws prohibiting the possession of guns
near schools and providing civil remedies for victims of gender-motivated
violence.
Naturally, these Court decisions have generated significant criticism
from members of Congress, as well as from groups and individuals who
supported these specific statutes. These decisions have .also given rise,
though, to more general complaints about the role of the Supreme Court
in policing the limits of congressional power. Many scholars and public
officials have argued that the Court should refrain from issuing decisions
of this kind and should leave it to Congress to determine the extent of
its enumerated powers. On the other hand, a smaller group of scholars
has defended these decisions as an important first step in enforcing the
constitutional boundaries between congressional and state power at a time
38 John Dinan

when neither Congress nor the states have shown any inclination to do so
on their own.
The debate about legislative and executive governance in the US conti-
nues. At this point, the debates are not so much about fundamental ques-
tions of institutional design. These have long since been settled, and there
have been few significant changes in the structure of government since
the founding. Rather, the current debates - whether about the Electoral
College, the drawing of House districts, or enforcing the limits of con-
gressional power - raise narrower, but still important, questions about the
performance of these longstanding institutions.
 Comparative Reflections
KATY L E R O Y A N D C H E R Y L S A U N D E R S

The choice and design of the institutions of government is a key issue in

the establishment and operation of any federation. Institutions are the
mechanism through which the federal principle is given practical effect
within all spheres of government. Many of the institutions of government
in federal democracies are the same, or similar, to those in use in any
democracy, whether federal or unitary. But, as this booklet shows, federa-
lism and democratic institutions have an impact on each other. Federalism
very often affects the way in which democratic institutions are designed,
and the way in which they work in practice. And the converse also is true:
institutional choice will usually have some effect on the form and opera-
tion of the federal system.

The range of institutions

The countries covered in this booklet use a range of different institutions
for the purposes of legislative and executive governance. Some have presi-
dential systems, in which the executive is elected separately from the legis-
lature. Others have parliamentary systems, in which the executive depends
on the continuing support of a majority in the legislature. One, Switzerland,
also uses a considerable measure of direct democracy, which affects the
operation of institutions of representative government, encouraging the
development of the consensus style of democracy that the chapter on
Switzerland describes.
There are considerable variations, however, within each of the two main
types of institutional design, presidential and parliamentary. These are
the result of other factors: the nature of the party system, including the
cohesiveness of parties and the extent to which they are organized along
national, as opposed to regional lines; the electoral system and in particu-
lar its tendency to produce majoritarian as opposed to proportional out-
comes; the depth and stability of the democratic culture; and the social
and economic context within which the institutions exist. And another
important variable is the design of the federal system itself. Factors of these
40 Katy Le Roy / Cheryl Saunders

kinds account for the very considerable differences between the presi-
dential systems that operate in, say, Argentina and the United States and
the comparable differences between the parliamentary systems of, say,
Germany and Australia.

The range of federal systems

At least three types of differences in federal design, affecting institutions,
are reflected by the countries in this volume.
First, there is an admittedly somewhat indistinct difference between fede-
rations and what might be called quasi-federations. The latter, of which
South Africa is an example, are typified by the degree of centralization
and, perhaps, also by the extent of central authority to directly control
governance within the constituent units. This characterization is not neces-
sarily fixed for all time, as the examples of Canada and India show.
A second important distinction is between dual and integrated federa-
tions. The former, typically, divide powers vertically and provide for a com-
plete (or almost complete) set of institutions within each jurisdiction. The
United States is the paradigm example. The latter, of which Germany is an
example, may also divide powers horizontally, leaving the administration
of most national programs to the constituent units and in turn giving them
a direct voice in the national legislature.
A third distinction lies in the depth of federal culture: the extent to
which federalism is, in the words of Rajeev Dhavan, considered a "gift of
governance" as opposed to a mere fact of political life, which, when it
stands in the way of efficiency, needs to be neutralized or minimized, often
at cost to the institutions of the constituent units.

The interaction between federalism and institutions

Each of the country chapters shows that the federal character of the polity
affects most of the institutions of government in some way or another. The
electoral units for the popular house of the national legislature, for example,
are often defined by reference to the boundaries of the constituent units.
The composition of the national executive is often influenced by a desire
to include members from some or all of the constituent jurisdictions.
There are particular institutions, or groups of institutions, on which the
impact of federalism is particularly pronounced, however.
The most obvious is the upper house, or second chamber, of the national
legislature, often designed to perform a federal role of some kind. Two
paradigm models are represented in these chapters. One is the German
Bundesrat, in which the influence of the state governments on federal deci-
sion making is institutionalized. The other is the United States Senate,
elected directly rather than by the state polities. South Africa represents
an important variation on the former, insofar as provincial legislatures,
rather than provincial governments, are represented in the National
 Comparative Reflections 41

Council of the Provinces. As the South African chapter argues, it is still

too early to judge the significance of this experiment with federal institu-
tional design.
A second institution significantly affected by the fact of federalism is the
administration. Some federations are designed to allow or require the
administration of programs of one sphere of government by the adminis-
trations of another. As these chapters show, however, in almost all federa-
tions it is relatively common for administrative bodies in the constituent
units to carry out some federal functions, whether formally or pursuant to
informal arrangements, including the administration of grants in aid.
Thirdly, there is significant variation in the way in which courts are
organized in federations. The logic of a dual federation is that each sphere
of government has a court system of its own. Only in the United States is
this logic completely realized, however. In other common law federations,
the court system is integrated to a greater or lesser degree, sometimes to
the point where, as in India and Canada, there is effectively a single system
of courts. In civil law federations also, while the courts may have specialist
functions, there are effectively single hierarchies, extending from the
constituent units to the central sphere of government.
Finally, most federations have a range of (generally informal) institu-
tions through which discussion, coordination, and cooperation between
the various governments of the federation also occur. Examples include
the Canadian Council of the Federation, the Swiss Conference of Cantonal
Executives, and the Indian Inter-State Council. The chapters in this booklet
tend to show that institutions of this kind are increasing in significance
and sophistication. One question that arises is whether these institutions
should be formalized in some way, in the interests of enhancing accounta-
bility, although at inevitable cost to flexibility.

Some consequences
At least three important consequences of the interaction between federalism
and institutions emerge from these chapters.
First, where there is a federal second chamber of the central legislature,
it will affect the capacity of the legislature to reflect the will of the national
majority, whether the second chamber in fact plays an effective federal role
or not. Ironically, in conditions where the executive otherwise tends to
dominate the legislature, a second chamber, differently constituted, will
make the legislature more of an independent force. Most federations
nevertheless struggle to find an acceptable balance between the powers of
the two such chambers, in the interests of both democracy and governing
efficiency.
Second, in most federations the symbiotic relationship between institu-
tions as they operate in a unitary system is disturbed to some degree. The
institutions most affected are courts and administrative agencies, to the
42 Katy Le Roy / Cheryl Saunders

extent that they answer in some ways to two or more spheres of govern-
ment. Such cross-jurisdictional arrangements complicate accountability
and autonomy, and thus both democracy and federalism. They do not
need to be avoided for this reason, but their consequences need to be
anticipated and managed.
Finally, almost all federations, with the United States as a clear excep-
tion, experience the phenomenon of executive federalism. While the
detail varies to a degree, depending on the mix of institutions and forms
of federalism, the common denominator is a high level of policy making
by governments acting collectively, relying on executive dominance of
their respective legislatures to ensure that their decisions are given effect.
Many of the policy outcomes thus achieved are beneficial. There is a sense,
also, in which this process merely takes the familiar reality of the executive
dominance of legislatures in many democratic systems to new heights.
Nevertheless, as with other cross-jurisdictional arrangements, executive
federalism disturbs traditional institutional arrangements, blurring lines
of accountability and making the operation of democratic processes diffi-
cult for voters to understand. Its impact is most severe on the institutions
of the constituent units, thus also weakening federalism itself. Many
federations presently are seeking ways to minimize or compensate for the
disadvantages of executive federalism while retaining the advantages of
cooperation of this kind.
 Glossary

ABORIGINAL SELF-GOVERNMENT arrangements for self-government of

indigenous peoples within a larger political framework; in Canada, demand for
the constitutional recognition of an inherent right of aboriginal self-government
in conjunction with the constitutional guarantee of "existing aboriginal and
treaty rights," Constitution Act, 1982, Section 35 (1).
ADMINISTRATIVE COURT Verwaltungsgerichthof; highest court for the adjudi-
cation of administrative law in Austria; may be complemented by similar courts
at the Land level; these would then replace the Independent Administrative
Tribunals; see constitutional convention.
ADMINISTRATIVE FEDERALISM term given to German-style federalism
whereby the division of powers is not primarily between specified policy domains
(as in US-style legislative federalism) but between the authority to make policy at
the federal level and the responsibility for the implementation and administra-
tion of that policy by the state governments.
ANC African National Congress; dominant party in South Africa.
A P A R T H E I D legal framework of racial segregation and discrimination against
people of non-European descent in South Africa (1948 to early 1990s).
A S Y M M E T R I C A L F E D E R A L I S M denotes unequal or non-identical distribu-
tion of powers and responsibilities among the constituent units of a federal
system.
BUNDESRAT [German] Federal Council; the name of the upper house or
second chamber of the bicameral national legislatures of both Austria and
Germany; occasionally translated as "Senate."
BUNDESTA G [German] Federal Assembly; the lower house or first chamber of
the bicameral national legislature of Germany; occasionally translated as "House
of Representatives."
C A N T O N name for the 26 constituent units in the Swiss federation.
C O E R C I V E F E D E R A L I S M see cooperative federalism.
C O N C U R R E N C Y / C O N C U R R E N T P O W E R S an approach to dividing powers
whereby levels of government are explicitly expected to share jurisdiction over
44 Glossary

specific policy areas. Can be effected either by creating a list of concurrent powers,
or by granting authority over various functions to one level of government without
providing for those powers to be exclusive. Where concurrent powers are consti-
tutionally listed, the constitution usually specifies that in cases of conflict, the laws
of one level or other shall have paramountcy (i.e., they will prevail).
C O N F E R E N C E OF THE C A N T O N A L E X E C U T I V E S regular meeting of the
heads of government of the Swiss cantons.
C O N G R E S S the bicameral national legislature of the presidential system of
government in the United States of America. Prior to that, the unicameral and
sole governing body of the United States under the Articles of Confederation.
Also the title of the bicameral federal legislature of Argentina, Brazil, Mexico,
and Venezuela.
C O N S T I T U T I O N A L C O N V E N T I O N 1. a specially convened meeting of repre-
sentatives to draft or enact fundamental law; 2. an unwritten rule of constitu-
tional practice; 3. specific reference to the Verfassungskonvent currently drafting
a revision of the Austrian Constitution.
CONSTITUTIONAL COURT a judicial body exercising final jurisdiction
specifically over constitutional questions including the relationship between
levels of government in a federation, as distinct from a supreme court, or one
that acts as the apex of the legal system in general. First established in
Austria (the Verfassungsgerichthof); examples now include Belgium's Court of
Arbitration (Cour d'arbitrage) and Germany's Federal Constitutional Court
(Bundesverfassungsgericht) and the constitutional courts of South Africa and the
Russian Federation.
C O N S T I T U T I O N A L STATE a system of government operating on the basis of
a firm set of procedural rules regulating the rotation of office and exercise of
power in a way that ensures that everyone is equal before the law.
C O O P E R A T I V E F E D E R A L I S M practice and principle of modern federalism
whereby the levels of government work together to coordinate policy design and
.delivery in areas of overlapping responsibility. Prescribed in some federations
(e.g., Germany's 'joint tasks") but more typically a non-constitutional adaptive
response of governments to the realities of modern federal governance.
Does not necessarily entail an equality of power and resources between the
participating levels of government and indeed may represent an exercise
in COERCIVE FEDERALISM whereby the superior resources or powers of the federal
government impose national policies.
COST S H A R I N G formal arrangement between levels of government to share
funding responsibilities for agreed-upon programs of service delivery.
C O U N C I L OF THE F E D E R A T I O N formal but non-constitutional and non-
statutory arrangement in Canada for consolidation of intergovernmental negotia-
tion among the provincial and territorial heads of government.
D E C E N T R A L I Z A T I O N OF P O W E R transfer of authority and or resources
from the central government to the governments of the constituent units of a
federation.
 Glossary 45

D U A L D E S I G N / F E D E R A L I S M the idea of strict legislative separation of powers

in a federation; each order of government legislates and administers
autonomously in its own sphere. Also known as "watertight compartments."
ELECTORAL COLLEGE nominal body for electing the president of the
United States of America; members are elected by a plurality of voters in each
state with each state having the number of electors equal to their numbers in
Congress.
E N U M E R A T E D P O W E R S authority to legislate over specific matters explicitly
assigned to a particular level or levels of government by the constitution; see
residual powers for contrast.
E U R O P E A N C L A U S E 1992 amendment to the German constitution (Article 23;
new) requiring participation of the Bundesrat in European legislation affecting
Lander responsibilities.
EXECUTIVE FEDERALISM in parliamentary federations (e.g., Canada,
Australia, India) the prevalence of intergovernmental negotiation conducted
between and within orders of government by the political executive, largely to
the exclusion of the legislative branch.
F E D E R A L C O N V E N T I O N OF 1787 Convention called under the authority of
the existing Congress of the United States to revise the existing constitution (the
Articles of Confederation); produced the new Constitution that was ratified as
the current Constitution of the United States of America.
FEDERAL COUNCIL 1. Bundesrat; name of the upper house or second
chamber of the bicameral national legislatures of both Germany and Austria.
2. Bundesrat/Conseil Federal Consiglio Federate, executive governing council and
collective head of state in Switzerland.
FEDERAL COURT OF AUDITORS Rechnungshof, controls budget accuracy,
expediency and thrift of all orders of government in Austria.
F E D E R A L G O V E R N M E N T colloquial and sometimes official term for the cen-
tral government of a federation.
F E D E R A L P R E S I D E N T Bundesprasident, the head of state in the parliamentary
national governments of both Austria and Germany.
F E D E R A L S U P E R V I S I O N authority of the federal government to veto actions
by Lander governments in Austria.
F I R S T M I N I S T E R S C O N F E R E N C E S intergovernmental meetings of the prime
minister and the 13 premiers (heads of government) of the 13 provinces and
territories of Canada; see also executive federalism.
FISCAL CO-PARTICIPATION access to appropriate revenue sources for all
levels of government in a federation.
F I S C A L F E D E R A L I S M the arrangements and practices in any federal system
for the distribution of tax powers and tax revenues among the levels of govern-
ment and the transfer of revenues between governments vertically and horizon-
tally within a federation.
GDR "German Democratic Republic"; the unitary state created in the Soviet
occupation zone of Germany, lasting from 1949 until re-unification in 1989.
46 Glossary

H I G H C O U R T OF A U S T R A L I A the supreme court for constitutional and

other law in the Commonwealth of Australia.
H O M O G E N E I T Y , S T A N D A R D S OF principle of constitutional adjudication in
Austria limiting the autonomy of the Lander in designing their own
governing systems.
H O R I Z O N T A L D I V I S I O N OF P O W E R separation of powers between the three
branches of government - legislative, executive, judicial - as in the presidential
system.
H O U S E OF R E P R E S E N T A T I V E S name of the lower house or first chamber in
the bicameral national legislatures of Australia, Nigeria, and the United States;
sometimes used as the translation for the names of the lower houses of the
Belgian and Swiss legislatures.
I N D E P E N D E N T A D M I N I S T R A T I V E T R I B U N A L S UnabhdngigeVerwaltungssenate,
appellate courts in the Austrian Lander mainly dealing with issues falling under
indirect federal administration.
I N D I G E N E S H I P R I G H T S privileged constitutional rights for indigene popula-
tions in Nigeria.
I N D I R E C T F E D E R A L A D M I N I S T R A T I O N arrangement in Austria whereby
national policies and programs are administered by the Lander, version of admi-
nistrative federalism.
I N T E R G O V E R N M E N T A L C O O P E R A T I O N / C O O R D I N A T I O N arrangements
for maintenance of ongoing working relationships in administrative and policy
making between and within levels of government in a federation - typically
neither constitutional nor statutory; see also: cooperative federalism.
I N T E R L O C K E D G O V E R N A N C E the German model of federalism, charac-
terized by shared jurisdiction between federal and Land levels of government
(see administrative federalism) combined with a strong role for the Land
governments in the federal policy-making process (via the Bundesrat).
J O I N T G O V E R N A N C E see interlocked governance.
KERALA a state of the Indian federation.
LAND [German] name for the constitutive units of both the Republic of Austria
and the Federal Republic of Germany; Lander plural.
M E D I A T I O N C O M M I T T E E see Vermittlungsausschuss.
M U N I C I P A L O R G A N I C C H A R T E R S statutes of municipal self-government in
Argentina.
N A T I O N A L A S S E M B L Y 1. lower house or first chamber in the bicameral
national legislature of South Africa; 2. bicameral national legislature of Nigeria,
comprising Senate and House of Representatives.
NATIONAL CONFERENCE mooted constitutive assembly for reassessing
Nigeria's constitution.
NATIONAL COUNCIL Nationalrat, the lower house or first chamber in the
bicameral national legislatures of both Switzerland and Austria; occasionally trans-
lated as "House of Representatives."
N A T I O N A L C O U N C I L OF P R O V I N C E S upper house or second chamber in
 Glossary 47

the bicameral national legislature of South Africa.

P L E N A R Y P O W E R S a general presumption of jurisdiction based on an implicit
or explicit grant of unlimited and unspecified powers. See residual powers.
P R O P O R T I O N A L R E P R E S E N T A T I O N [ P R ] electoral system that assigns seats
in a legislature in a way that provides an accurate reflection of the share of votes
received by the contesting parties; effected through nation-wide or regional
multi-member electoral districts.
P R O V I N C E name for constituent units, as an alternative to states, in various
federations (e.g., Canada, 10 provinces; South Africa, 9 provinces); in some
federations used for divisions below the level of the constituent units (e.g.,
Spain).
REFERRAL OF POWERS constitutional provision allowing one level of
government to transfer or delegate (i.e., revoke) authority to act in a stipulated
area of jurisdiction to another level of government.
R E P R E S E N T A T I V E G O V E R N M E N T a system of government where the legisla-
tive and executive bodies are filled, directly or indirectly, through a process of
regular elections.
R E P U B L I C L a system of government where rule is carried out by those directly
or indirectly elected by the people; 2. term used in Australia to denote constitu-
tional status following proposed replacement of the existing dual regal and vice-
regal heads of state with an office of a directly or indirectly elected president.
R E P U B L I C A N P R E S I D E N T I A L SYSTEM a system of representative democracy
designed on the basis of a separation of powers between the legislative and exe-
cutive branches.
R E S I D U A L P O W E R S those unidentified powers that are left by a federal cons-
titution either implicitly or explicitly to a particular order of government in con-
trast to explicitly assigned enumerated powers.
R E S P O N S I B L E G O V E R N M E N T the British term for an executive government
that depends upon the continuing support of a majority in the legislature (i.e.,
a parliamentary democracy); see Westminster model.
REVENUE SHARING a practice, agreement, or rule whereby the proceeds of
a particular revenue source are distributed among levels of government in a
federation.
SAARC T R E A T Y South Asian Association for Regional Cooperation founded in
1985 by Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka; in
2003, member countries agreed to form the South Asia Free Trade Area
(SAFTA) among themselves, to take effect in 2006.
SARKARIA COMMISSION Indian commission on centre-state relations that
reported in 1988 with wide-ranging recommendations on the constitutional divi-
sion of powers and the operation of India's federal system.
S E L F - D E T E R M I N A T I O N refers to rights of governing autonomy for minority
groups or nations in federal systems; controversial in Canada because of
Quebec's extensive claims to such rights as a nation.
SENATE name of the upper house or second chamber in the bicameral
48 Glossary

national legislatures of Australia, Belgium, Brazil, Canada, Nigeria, Mexico, and

United States of America.
S H A R I A H LAW code of Islamic law in force in some northern states of Nigeria;
adjudicated by Shariah courts.
S P E N D I N G P O W E R the ability of a government in a federation to spend in
areas outside its legal jurisdiction and thus to exercise influence or control by
means of its financial resources over matters falling within the jurisdiction of other
levels of government; most commonly operates either through the power of
federal governments to fund "national" programs or through the power to make
transfers conditional upon adherence to federation-wide norms.
STANDERAT [German] Council of States; the upper house or second chamber
of the bicameral national legislature of Switzerland.
STATES name for the constituent units in the federations of Australia
(6 states), Brazil (26 states), India (28 states), Mexico (31 states), Nigeria
(36 states), United States of America (50 states).
S T A T U T E S ordinary legislative acts or laws.
S T A T U T O R Y R E F O R M S changes made through the sub-constitutional process
of legislative enactment.
S U B J E C T S OF THE F E D E R A T I O N generic term for the 89 varying cons-
tituent units of the Russian federation, comprising republics, territories, regions,
autonomous areas, autonomous regions, and federal cities.
SUPREME COURT the highest court for constitutional and other law in
Canada, India, Mexico, Nigeria, and the United States.
T H I R D T I E R local government that may be municipal or commune, county,
region, or functional; characteristically sub-constitutional in status.
T H R E E - L A Y E R F E D E R A L I S M the classic division of federations into three
levels or orders of government: the overarching federal government; the cons-
tituent units; and the various local governments of the "third tier."
TREATY F E D E R A L I S M refers to the idea of maintaining federal union by an
ongoing process of mutual treaty agreements rather than on the basis of a fixed
constitutional division of powers.
U N E Q U A L W E I G H T I N G variation in constitutional status and powers between
constituent units of a federation; also referred to as asymmetrical federalism.
U N I F O R M P O L I C I E S policies and standards imposed across a federation upon
constituent units without variation.
U N I O N 1. informal reference to a federation as a whole, or to the national order
of governance; 2. official term for the Indian federation and its national
government.
U N I O N T E R R I T O R I E S regions of the Indian federation lacking statehood and
governed under the aegis of the Union government.
VERMITTLUNGSAUSSCHUSS [German] Mediation Committee; parliamentary
committee provided for in the Constitution of the Federal Republic of Germany
to resolve disagreements between the two chambers of the federal parliament,
Bundestag and Bundesrat.
 Glossary 49

V E R T I C A L F I S C A L I M B A L A N C E [vFi] an imbalance in revenues and

responsibilities between the levels of government in a federation, with one level
enjoying revenues in excess of its needs and the other or others bearing expen-
diture responsibilities in excess of their own-source revenues.
W E S T E R N A L I E N A T I O N term used in Canada to describe the grievances of
the less populous, more resource-based provinces in the western half of the
country - Manitoba, Saskatchewan, Alberta, and British Columbia.
W E S T E R N P R O V I N C E S the four less-populous provinces in the western half of
Canada: Manitoba, Saskatchewan, Alberta, and British Columbia.
W E S T M I N S T E R SYSTEM the version of parliamentary government originating
in England, subsequently the United Kingdom. Characterized by evolution of
an uncodified constitution and the consolidation of a unitary state; the rule of
parliamentary supremacy or sovereignty; limited judicial review; a strong
reliance on unwritten constitutional rules known as conventions (notably the
conventions of responsible government); the retention of a monarchical head of
state exercising only vestigial constitutional power; and the use of the plurality-
based single-member electoral system ("first-past-the-post").
ZUSTIMMUNGSGESETZE [German] national legislation in the Federal
Republic of Germany that under the Constitution requires approval
(Zustimmung) of the Bundesrat because its execution and administration falls into
the administrative autonomy of the Lander.
This page intentionally left blank
 Contributors

RAOUL B L I N D E N B A C H E R , vice president, Forum of Federations, Canada/

Switzerland

RAJEEV DHAVAN, senior advocate, Supreme Court of India, New Delhi, India

J O H N D I N A N , associate professor of political science, Wake Forest University,

North Carolina, United States

A L E X A N D E R D O M R I N , head of international programs, Institute of Legislation

and Comparative Law, Moscow, Russia

ANNA CAMPER, associate professor, Institute of Public Law, University of

Innsbruck, Austria

A N T O N I O M. H E R N A N D E Z , professor, School of Law, National University of

Cordoba, Argentina

THOMAS o. H U E G L I N , professor of political science, Wilfrid Laurier University,

Waterloo, Canada

KATY LE ROY, assistant director, Centre for Comparative Constitutional Studies,

University of Melbourne, Australia

WOLF LINDER, director, Institute of Political Science, University of Bern,

Switzerland

CHRISTINA MURRAY, professor, Constitutional and Human Rights Law,

University of Cape Town, South Africa
52 Contributors

STEFAN OETER, professor of German and comparative public law and public
international law, Managing Director of the Institute of International Affairs,
University of Hamburg Law School, Germany

EBERE OSIEKE, chairman of the governing board, Centre for Socio-Legal

Studies and Research, Abuja, Nigeria

ABIGAIL OSTIEN, program manager, Global Dialogue program, Forum of

Federations, Canada

CHERYL SAUNDERS, personal chair in law, University of Melbourne, Australia

and President, International Association of Centres for Federal Studies

REKHA SAXENA, senior lecturer, Department of Political Science, Janki Devi

Memorial College, University of Delhi, India

ISABELLE. STEFFEN, research assistant, Institute for Political Science, University

of Bern, Switzerland
 Participating Experts

We gratefully acknowledge the input of the following experts who participated

in the theme of Legislative, Executive, and Judicial Governance in Federal
Countries. While participants contributed their knowledge and experience, they
are in no way responsible for the contents of this booklet.

Philippe Abbrederis, (student), Austria

Christie Adejoh, Trade Bank PLC, Nigeria
Christie Adokwu, House of Assembly - Benue State, Nigeria
Heinz Anderwald, Land Steiermark, Austria
Kara-Kys Arakchaa, Assembly of Russian Nations, Russia
Rutha Astravas, Government of Canada, Canada
Hartmut Bauer, Technische Universitat Dresden, Germany
Viktor Baumeler, Staatskanzlei, Kantons Luzern, Switzerland
Walter Becker, Welcome, North Carolina, United States
Michael Bitzer, Catawba College, United States
Arnold Blackstar, Government of Canada, Canada
Ruth Liithi Blume, Parlamentsdienste Bern, Switzerland
Henner Jorg Boehl, Deutschen Bundestag, Germany
Lyubov Boltenkova, Russian Academy of State Service, Russia
Sigrid Boysen, Universitat Hannover, Germany
Peter Briner, Standerat Schaffhausen, Switzerland
Peter BuBjager, Institut fur Foderalismus Innsbruck, Austria
Werner Bussmann, Bundesamt fur Justiz, Bern, Switzerland
Guillermo Barrera Buteler, National University of Cordoba, Argentina
Bidyut Chakrabaf ty, University of Delhi, India
Mike Coetzee, Parliament, South Africa
Alicia Comelli, Province of Neuquen, Argentina
Timothy Conlan, George Mason University, United States
Alexis Conrad, Government of Canada, Canada
Bernard Dafflon, Universite de Fribourg, Switzerland
54 Participating Experts

Alberto Dallavia, National University of Buenos Aires, Argentina

Philip Dann, Max-Planck Institute for Comparative Public Law and
International Law, Germany
Johnny De Lange, Parliament, South Africa
Liliana de Riz, UNPD in Buenos Aires, Argentina
Martha Derthick, University of Virginia, United States
Rajeev Dhavan, Supreme Court of India, India
John Dinan, Wake Forest University, United States
Aleksander Domrin, Institute of Legislation and Comparative Jurisprudence,
Government of Russian Federation
Richard Drew, University of Virginia, United States
Monika Dusong, Departement de la justice, de la sante et de la securite,
Neuchatel, Switzerland
Karl Edtstadler, Land Salzburg, Austria
J. Isawa Elaigwu, Institute of Governance and Social Research, Nigeria
Simon Evans, Melbourne Law School, Australia
Vyacheslav Evdokimov, Ministry of Justice of Russian Federation, Russia
Patrick Fafard, Government of Canada, Canada
Johannes Fischer, Land Gouvernement Oberosterreich, Austria
Jack Fleer, Wake Forest University, United States
Herbert Forster, Austrian People's Party, Tyrol, Austria
Temba Fosi, Provincial and Local Government, South Africa
Dieter Freiburghaus, IDHEAP, Switzerland
Pedro Jose Frias, Institute of Federalism, Argentina
Steven Friedman, Centre for Policy Studies, South Africa
Habu Galadima, University of Jos, Nigeria
Brian Galligan, University of Melbourne, Australia
Anna Gamper, University of Innsbruck, Austria
Benito Carlos Garzon, National University of Tucuman, Argentina
Jan Glazewski, University of Cape Town, South Africa
Milena Gligich-Zolotareva, Analytical Department, Federation Council of
Russian Federation, Russia
Justin Goldblatt, Public Law UCT, South Africa
Borghild Goldgruber-Reiner, Land Gouvernement Vorarlberger, Austria
Leslie Goldstein, University of Delaware, United States
Kathryn Graham, Australian Government Solicitor, Australia
Rick Gray, Northern Territory, Australia
Barbara Gstir, University of Innsbruck, Austria
Barbara Hall, City of Toronto, Canada
Fiona Hanlon, Melbourne Law School, Australia
Ian Harris, House of Representatives, Australia
Kathryn Harrison, University of British Columbia, Canada
Antonio M.Hernandez, Institute of Federalism, Argentina
Graeme Hill, Australian Government Solicitor, Australia
 Participating Experts 55

Veronique Hivon, Gouvernement du Quebec, Canada

Rainer Holtschneider, Deutschen Bundestag, Germany
Meenakshi Hooja, Rajasthan State Mines and Mineral Ltd., India
Rakesh Hooja, Government of India, India
Josef Hormandinger, Diet of Salzburg, Austria
Hamilton C. Horton, Jr., North Carolina State Senate, United States
Alejandro Perez Hualde, National University of Mendoza, Argentina
Paul Huber, Regierungsrat, Luzern, Switzerland
Thomas O.Hueglin, Wilfrid Laurier University, Canada
Charles Ilegbune, University of Nigeria, Nigeria
Inderjit, INFA, Former Lok Sabha MP, India
Karl Irresberger, Office of the Federal Chancellor, Austria
Judy Jackson, Government of Tasmania, Australia
B. Jana, Inter-State Council, India
Jiirgen Jekewitz, Friedrich-Ebert-Stiftung, Germany
Frank Jenkins, Parliament, South Africa
Ulrich Karpen, Universitat Hamburg, Germany
Rafael Khakimov, Presidential Administration of Tatarstan, Russia
Tshepo Khasi, Provincial and Local Government, South Africa
Len Kiely, Northern Territory Parliament, Australia
John Kincaid, Lafayette College, United States
Gebhard Kirchgassner, Universitat St. Gallen, Switzerland
Ricardo Klass, Superior Tribunal of the Province of Tierra del Fuego,
Argentina
Kelly Lamrock, Legislative Assembly of New Brunswick, Canada
Daniela Larch, Institut fur Foderalismus Innsbruck, Austria
Daniela Larch, Institut fur Foderalismus Innsbruck, Austria
Gilbert Lawrence, Provincial Administration, Western Cape, South Africa
Katy Le Roy, Melbourne Law School, Australia
Uwe Leonardy, Verwaltung des Deutschen Bundestages, Germany
Wolf Linder, Universitat Bern, Switzerland
Paul Luebke, House of Representatives, North Carolina, United States
Vladimir Lysenko, Contemporary Policy Institute, Russia
Luzius Mader, Bundesamt fur Justiz, Bern, Switzerland
Klaus Madritsch, Tyrol, Austria
Roland Maier, Konferenz der Kantonsregierungen (KdK), Switzerland
Akhtar Majeed, Hamdard University, India
Leonid Mamut, Institute of State and Law, Russian Academy of Science, Russia
George Mathew, Institute of Social Sciences, India
Lulu Matyolo, NCOP Parliament, South Africa
Ruth McColl, Supreme Court of New South Wales, Australia
Beverley McLachlin, Supreme Court of Canada, Canada
David McLaughlin, Government of New Brunswick, Canada
Peter Meekison, University of Alberta, Canada
56 Participating Experts

Veit Mehde, Universitat Hamburg, Germany

Alberto Zarza Mensaque, National University of Cordoba, Argentina
Garry Minkh, Government of Russian Federation, Russia
Gerardo Morales, Province of Jujuy, Argentina
Gaby Miiller, Grossratin Luzern, Switzerland
Georg Miiller, Rechtswissenschaftliches Institut, Switzerland
Christina Murray, UCT & Country Coordinator, South Africa
J.M. Nasir, University of Jos, Nigeria
Giusep Nay, Bundesrichter Lausanne, Switzerland
B. Nayak, Inter-State Council, India
Mario Negri, Province of Cordoba, Argentina
Alex Nwofe, National Assembly, Nigeria
Nkiru Obioha, National Assembly, Nigeria
Nurudeen A. Ogbara, National Association of Democratic Lawyers, Nigeria
Theo Ohlinger, University of Vienna, Austria
Ebere Osieke, Imo State University, Nigeria
O. Osunbor, The Senate, National Assembly, Nigeria
Audrey Paramonov, Department of Internal Policy, Russia
Lulu Pemba, Government, South Africa
Peter Pernthaler, University of Innsbruck, Austria
Evgeny Pershin, Analytical Department, Federation Council of Russian
Federation, Russia
Stefan Ulrich Pieper, Bundesministerium des Innern, Germany
Luis Cordeiro Pinto, National University of Cordoba, Argentina
Michaela Piskernik, Land Government Burgenland, Austria
Peter Pollak, Municipal Council Vienna, Austria
Thabo Rapoo, Centre for Policy Studies, South Africa
Irmgard Rath-Kathrein, University of Innsbruck, Austria
PL. Sanjiva Reddy, Indian Institute of Public-Administration (IIPA), India
Pablo C. Riberi, National University of Cordoba, Argentina
Horst Risse, Deutscher Bundesrat, Germany
Francois Rocher, Carleton University, Canada
Ralph Rossum, Claremont-McKenna College, United States
Ash Narain Roy, Institute of Social Sciences New Delhi, India
Angel Rozas, National Committee of Union Civica Radical Party, Argentina
Rajender Sachhar, HC of Delhi, India
Marat Salikov, Ural State Law Academy, Russia
Cheryl Saunders, Melbourne Law School, Australia
Rekha Saxena, University of Delhi, India
JuanSchiaretti, Province of Cordoba, Argentina
Peter Selmer, Universitat Hamburg, Germany
Ilya Shablinsky, Higher School of Economics, State University, Russia
Sandeep Shastri, Bangalore University, India
Olga Sidorovich, Institute of Law and Public Policy, Russia
 Participating Experts 57

Richard Simeon, University of Toronto, Canada

M.P. Singh, University of Delhi, India
Kalipile Sizani, Provincial Administration, KwaZulu-Natal, South Africa
Anastasia Slitkova, Institute of Law and Public Policy, Russia
Peter Solomon, University of Toronto, Canada
Isabelle Steffen, Universitat Bern, Switzerland
Ludwig Stegmayer, Land Government Salzburg, Austria
Amanda Steinhoff, Wilfrid Laurier University (student), Canada
Walther Steinhuber, (student), Austria
Nico Steytler, University of the Western Cape, South Africa
Chris Tapscott, University of the Western Cape, South Africa
Oleg Tarasov, Russia
Lilian Topic, Victorian Legislative Assembly, Australia
Pierre Tschannen, Unviersitat Bern, Switzerland
Anne Twomey, University of Sydney, Australia
I.C. Uwakwe, NITEL Asokoro, Nigeria
John Wanna, Griffith University, Australia
Marilyn Warren, Supreme Court of Victoria, Australia
Karl Weber, University of Innsbruck, Austria
Reto Wehrli, Nationalrat, Schwyz, Switzerland
Patrick Weller, Griffith University, Australia
Russell Wheeler, Federal Judicial Center, United States
Roger Wilkins, New South Wales Cabinet Office, Australia
Julian Wurtenberger, Staatsministerium Baden-Wurttemberg, Germany
Tinsley Yarbrough, East Carolina University, United States
Lisa Young, University of Calgary, Canada
Ibrahim Zailani, Committee on Justice - Bauchi State, Nigeria
Vital Zehnder, Zentralschweizerische Regierungskonferenz (ZRK), Switzerland
Franz Zorner, Municipal Council Vienna, Austria
This page intentionally left blank
 Handbook of Federal Countries, 2005
Edited by Ann L. Griffiths, Coordinated by Karl Nerenberg
An indispensable reference book on the developments, political dynamics,
institutions, and constitutions of the world's federal countries.

Published for the Forum of Federations

For more than two centuries federalism has provided an example of how people can live
together even as they maintain their diversity. The Handbook of Federal Countries, 2005
continues the tradition started by the 2002 edition, updating and building on
the work of Ronald Watts and Daniel Elazar in providing a comparative examination
of countries organized on the federal principle.
Unique in its timely scope and depth, this volume includes a foreword by
Forum President Bob Rae that reflects on the importance of the federal idea in
the contemporary world. New comparative chapters examine the recent draft
constitutional treaty in Europe and the possibility of federalism being adopted
in two countries with longstanding violent conflicts-Sri Lanka and Sudan.
As a project of the Forum of Federations, an international network on federalism
in practice, the 2005 handbook is an essential sourcebook of information, with maps
and statistical tables in each chapter.

ANN GRIFFITHS is professor, Dalhousie College of Continuing Education, Dalhousie

University.
KARL N E R E N B E R G is former director of public information and senior editor,
Forum of Federations.

0-7735-2888-1
6 x 9 488pp 30 maps
French edition: Guide des pays federaux, 2005
0-7735-2896-2
 Legislative, Executive, and Judicial Governance
in Federal Countries
Edited by Katy Le Roy and Cheryl Saunders
Senior Editor, John Kincaid

Published for the Forum of Federations and the International Association

of Centers for Federal Studies (IACFS)
Global Dialogue on Federalism, Book Series, Volume 3

Examines the interactions between the constitutional design and actual operation
of institutions of government in 11 federal democracies: Argentina, Australia,
Austria, Canada, Germany, India, Nigeria, Russia, South Africa, Switzerland, and
the United States of America. Contributors analyze the structures and workings
of legislative, executive, and judicial institutions in each sphere of government,
explain how the federal nature of the polity affects those institutions, demonstrate how,
conversely, those institutions affect federalism, and reflect on possible future trends.

JOHN KINCAID is professor of Government and Public Service and director of

the Robert B. and Helen S. Meyner Center for the Study of State and
Local Government at Lafayette College, Easton, Pennsylvania.
KATY LE ROY is assistant director at the Centre for Comparative Constitutional Studies,
University of Melbourne, Australia.
CHERYL SAUNDERS holds a personal chair in law at the University of Melbourne
in Australia and is president of the International Association of Centres for
Federal Studies.

September 2006
6 x 9 11 maps
 Federations:
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