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VOLUME 46(4)

 

Theories and Practices of Federalism in Deeply Divided Societies

ROSALIND DIXON, RON LEVY AND MARK TUSHNET

Federalism and Gender Equality

SUSAN H WILLIAMS

Despite the enormous literature on federalism in constitutional design, and the growing attention to gender equality in constitutional design, there has been remarkably little attention paid to the interaction between the two. This article seeks to provide a summary of the existing literature on this intersection, to apply the insights of that literature to the case of Myanmar, and to offer a contribution concerning the theoretical connections between federalism and gender equality. The analysis generates four primary conclusions. First, federalism is inherently neither good nor bad for gender equality: it all depends on the details of the federal system and the context in which they are applied. Second, there are, nonetheless, some guidelines that can be gleaned from the experiences of countries around the world about the design elements that can make federalism more or less useful for promoting gender equality under different conditions. Third, applying these elements in the case of Myanmar suggests that women’s organisations might make common cause with the ethnic minority groups that are negotiating with the government and the army over federalism issues because the women share with these groups certain goals with respect to federal systems. And fourth, there is a connection between gender and federalism, not at the pragmatic or design level, but at the theoretical level. This connection concerns the type of (ideal) orientation that is required of citizens in a federal system and the ways in which that orientation might be valuable for gender equality. It is, then, the character of federal citizens, rather than the federal system itself, that could be inherently beneficial to gender equality.

The Rejection of Constitutional Incrementalism in Nepal's Federalisation

MARA MALAGODI

The relationship between federalism and identity was the single most contentious issue in the drafting of Nepal’s 2015 Constitution, and remains an embattled feature of the country’s post-conflict constitutional settlement. This article explains why ‘constitutional incrementalism’—the innovative constitution-making strategy for deeply divided societies theorised by Hanna Lerner—was ultimately (and wisely) rejected in Nepal’s federalisation process. Historically a unitary state since its creation in the late eighteenth century, Nepal committed itself to federal restructuring in 2007, but profound disagreements endured over the set of institutional choices concerning the features of Nepal’s federal arrangements throughout the constitution-making process (2008–15). Constitutional incrementalism with its emphasis on deferral, ambiguity and contradiction was thought of in some quarters as a pragmatic and instrumental way out of Nepal’s political impasse. In the end, the 2015 Constitution expressly named the provinces (even if by just using numbers) and demarcated their boundaries already at the time of its promulgation. Any changes to this framework can only take place by way of constitutional amendment. This article explains why the incrementalist approach was rejected in Nepal’s federalisation process, and reflects on the conditions under which constitutional incrementalism may succeed in societies that present profound disagreements over the collective identity of the polity.

Fiscal Decentralisation in a Divided State: Bougainville in Papua New Guinea

SATISH CHAND

Is fiscal decentralisation in a polity divided by languages, cultures, tribes, and geography a means to nation-building or a route to secession? I consider the case of Bougainville in Papua New Guinea to provide nuanced information on the above question. This case study reveals that fiscal decentralisation, agreed to as part of a peace agreement signed in 2001 following a decade-long civil war in Bougainville, provided the opportunity for national consolidation. However, tensions surrounding the implementation of arrangements for budgetary support of Bougainville are forcing further fracturing. A definitive answer to the question of whether fiscal decentralisation helped or hindered nation-building will be provided by the referendum, due by mid-2020, when the people of Bougainville will have the option to vote for independence from Papua New Guinea.

'A Measure of Autonomy': Federalism as Protection for Malaysia's Indigenous Peoples

ANDREW HARDING

This article is a case study of federalism in Malaysia as applied to the East Malaysian states of Sabah and Sarawak, which joined the federation in 1963. It is only in the case of these two states, in the context of Malaysia, that federalism is designed to deal with ethnic issues, the majority in both states being Indigenous people. Protection of these states’ Indigenous people was a priority in 1963 and special status was given to these states in order to provide such protection. The study finds, nonetheless, that this special status has been eroded over the last 55 years by political interference by the federal government, and that the special status of these two states has proved ineffective, and indeed largely unacknowledged at the federal level. Accordingly, this study finds that federalism as protection for Indigenous people has been ineffective and the situation of the Indigenous people has as a result deteriorated over time. The solution, it is suggested, is through democratic empowerment at the state level and for federalism to provide deeper forms of constitutional protection.

The Politics of Secular Federalism and the Federal Governance of Religious Diversity in Asia

BAOGANG HE, LAURA ALLISON-REUMANN AND MICHAEL BREEN

A secular approach has dominated federal studies, perhaps because there seems a natural fit between federalism and secularism. However, the federal systems or practices of Asia bring that close association into question, and the federal accommodation of religious demands has not been examined fully. This article focuses on how religion has been approached, accommodated or resisted in federal and quasi-federal states in Asia. We select India, Malaysia, Pakistan, Myanmar, Sri Lanka and Nepal as cases. We first explore the relationship between federalism, secularism and religion, and find that secular values at the point of federalisation played an important role in federalism’s establishment, but that they were later modified in the practice of federal accommodation of religion. We also identify and examine the federal governance of religious diversity, which features three types of accommodation—centrally-based, unit-based and group-based accommodation—with accommodative practices sometimes being for the benefit of a majority religion, and sometimes for a minority one.

Assessing Kenya's Cooperative Model of Devolution: A Situation-Specific Analysis

JAMES THUO GATHII AND HARRISON MBORI OTIENO

Kenya’s form of quasi-federalism termed devolution was introduced under the Constitution of Kenya (2010) (‘2010 Constitution’). This governance system establishes 47 county governments which are constitutionally independent sub-national units with direct election of county level leaders. Given the complexity of devolution’s relationship to national politics, as well as the broad variation in how devolution has unfolded in the 47 counties since 2013, this article argues in favour of a situation-specific assessment of devolution in Kenya. This analysis departs from the emerging scholarly consensus of devolution in Kenya represented in two predominant approaches. One approach contends that devolution in Kenya has simply devolved corruption and patronage from the national to the county level. Another approach argues that devolution has so far been relatively successful because it has introduced a new political system at the county level that has a robust system of checks and balances but that has empowered a new dynamic in Kenya’s politics at the sub-national level. This article argues the first approach paints the emerging devolution experience with a broad brush that is not reflected in every county or even on every issue. This article has more in common with the second view. However, we argue for a more situation-specific, case by case analysis of devolution to show variations in how devolution has or has not facilitated the delivery of services and opportunities that were prior to 2013 likely to be unavailable particularly in the most economically disadvantaged counties.

A House Divided: Federalism and Social Conflict in Italy

AMNON LEV

Looking at Italy, the article argues that government serves as an intervening variable that can mediate the implication of federalism and social division. Its overall argument is that the Italian state maintained its unity through a governmental practice of configuring social division so as not to align on the North/South divide, while engaging in a comprehensive devolution of competencies to the subnational level. Through readings of Carlo Cattaneo and Guiseppe Mazzini, the first part of the article considers the conjunctural factors that allowed for the creation, against all odds, of Italy as a unitary state. The second part considers by what strategies the political parties colluded in preserving the unity of the national territory, and by what forms of devolution power was transferred to the subnational level. In conclusion, the article considers the rise of federalism in Italian politics from the 1990s.

Judicial Power and Consociational Federation: The Bosnian Example

ALEX SCHWARTZ

An influential theory, sometimes called the ‘fragmentation hypothesis’, proposes that divided political systems will tend to empower courts because they make it more difficult for political elites to coordinate court-curbing retaliation. Another influential perspective proposes that federal systems are conducive to judicial empowerment because they create a demand for the authoritative adjudication of jurisdictional boundaries and/or they facilitate judicial supremacy over constitutional meaning.   If both of these theories are correct, we might expect consociational (ie, power sharing) federations to be especially hospitable to the emergence of powerful courts.  With reference to the example of Bosnia-Herzegovina, this article questions this conclusion; it is theorized here that core features of consociational federation will tend to undermine the growth and maintenance of judicial power.

The Democratic Deficit of United States Federalism? Red State, Blue State, Purple? 

Vicki C Jackson

Aspects of an entrenched constitution that were essential parts of founding compromises, and justified as necessary when a constitution was first adopted, may become less justifiable over time. Is this the case with respect to the structure of the United States Senate? The US Senate is hardwired in the Constitution to consist of an equal number of Senators from each state—the smallest of which currently has about 585,000 residents, and the largest of which has about 39.29 million. As this essay explains, over time, as population inequalities among states have grown larger, so too has the disproportionate voting power of smaller-population states in the national Senate. As a result of the ‘one-person, one-vote’ decisions of the 1960s that applied to both houses of state legislatures, each state legislature now is arguably more representative of its state population than the US Congress is of the US population. The ‘democratic deficit’ of the Senate, compared to state legislative bodies, also affects presidential (as compared to gubernatorial) elections. When founding compromises deeply entrenched in a constitution develop harder-to-justify consequences, should constitutional interpretation change responsively? Possible implications of the ‘democratic’ difference between the national and the state legislatures for US federalism doctrine are explored, especially with respect to the ‘pre-emption’ doctrine. Finally, the essay briefly considers the possibilities of federalism for addressing longer term issues of representation, polarisation and sustaining a single nation.

The Dilemma of Indigenous Self-Government in Canada: Indigenous Rights and Canadian Federalism

Richard Stacey

Canada’s constitutional distribution of authority between the provinces and federal government leaves no room for Indigenous self-government, but there are increasingly vocal calls for change. Whether Indigenous peoples are acknowledged as one of Canada’s founding nations alongside its English and French settlers, or are recognized as distinctive peoples within its multicultural society, these calls affirm Indigenous peoples as sovereign nations deserving of at least some of the powers that the provinces have. The Constitution Act 1982 provides a different mechanism of legal protection for Indigenous peoples, recognizing and affirming already existing Indigenous rights. Canada’s Indigenous rights jurisprudence, however, pulls against the sovereignty that underlies federalism. The courts have understood Indigenous rights such that accessing their protections denies to Indigenous peoples the autonomy to define themselves as member nations of Canada’s multicultural society. As a normative point, this paper argues that we should embrace constitutional Indigenous rights as a vehicle for Indigenous sovereignty, because it brings federalism and Indigenous rights together as a theoretically coherent foundation for Indigenous self-government in Canada. As a descriptive point, the paper argues that the jurisprudence itself already contains the resources to support a sovereignty-affirming reading of the Constitution’s Indigenous rights provisions.

 

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