THE FEDERAL GOVERNMENT:

Sharing power at the center

Organization of session

• Forum of Federations video, Module 2’, Sharing Power at the Centre

• Lecture: theory and comparison• Discussion: strengths and weaknesses of the

Iraqi constitutional design in light of comparative experience

• CRC and UNAMI comment

‘’Building in’’

• ‘’Building out’’ – empowering groups through the creation of strong, effective regional governments

• ‘’Building in’’– strengthening unity through the ways in which the central government is designed and operated

• Give regions sense of ownership, belonging in national government

• Eases fear of ‘slippery slope’

Principles

In a diverse society, it is critical that the central government be:

• Representative of all groups and sectors of society• Inclusive -- everyone must have a voice in the

national government• Effective – able to make and implement policies

that serve the whole country• Legitimate in the eyes of citizens and other

governments• Article 49: ‘All components of the people’ to be

represented

Majority rule and power sharing• In a diverse society, simple majority rule means

that minorities may be excluded, marginalized• This may make central government illegitimate

in eyes of minorities• Result may be minority rejection of democratic

practice; or minorities turn to regional governments to protect them from majority tyranny at the center

• Power sharing at the center is a primary unifying device in divided systems; strengthens, not weakens central government

Power-sharing and institutions

Institutional arrangements affect the ability of the central government to be inclusive and representative. These include:

• How central governments are selected: electoral systems and political parties

• How they are organized: presidential and parliamentary systems

• One party or coalition cabinets• The role of second chambers specifically designed to

represent regions• Judicial systems• Representative bureaucracies

Electoral systems/1

• Comparative literature agreed on:• Proportional systems better able to represent

minorities. Even small groups can get seats and a voice in legislature.

• Single member systems (Canada, UK) can create large distortions between votes and seats.

• Can create a government with only minority support, or that lacks representation from important groups and regions. (Canada sometimes)

• Create one-party cabinets that may represent only majority group

Electoral systems/2

• PR systems tend to create multi-party coalition cabinets: big benefit – more inclusive

• May make formation of government and development of clear, coherent policy difficult– a dilemma

• May lead to many small parties appealing to narrow interests, and weaken parties that seek broad cross-group coalitions

• Which is the right trade-off in divided societies; in Iraq? PR is chosen: right decision?

Organization of Government/1

• Basic distinction is between parliamentary and presidential systems

• Power concentrated vs. power dispersed: big question given Iraq’s history

• Comparative research suggests parliamentary systems work best in diverse societies.

• Why? Presidential system may place too much power in hands of a member of one group; parliamentary spreads power more

Organization of Government/2• But there are many variants on these models• In presidential systems the rules can require that the

president be elected only with broad support across regions (Nigeria)

• Or have a shared presidency, or a rotating presidency, or rules that distribute leadership positions across groups (as in Switzerland and Iraq today

• Again no one model meets the larger goals of inclusion, proportionality, legitimacy

• Iraq: history suggested a weak president -- too weak?

Organization of government/3

The organization of Cabinets and Ministers:• In single party cabinets, danger that important

regions are left out• Less danger of this in coalition cabinets• May be legal requirements for representative

cabinets (e.g. South Africa Government of National Unity); or informal norms and traditions.

• E.g. Canada: strong tradition of representing each province in cabinet; increasing tradition of ensuring representation of other groups (women, new Canadians, aboriginal peoples, etc.)

Organization of government/3

The public administration• It is critical that the non-elected central government officials,

civil servants, be:– Representative of all the major groups in the society– Able to serve all the members of the society in their own

language, and in culturally sensitive ways– Hence importance of recruitment, training, language use in the

public service– Recall Belgium – proportionality in representation – plus language

ability– Plus linguistically homogeneous regions

Organization of Government/4

The judiciary• In a federal system, a crucial role for the judiciary is to act as

umpire between orders of government• Therefore must be seen as impartial• Courts as servants of constitution and citizens, not as

servant of government. Not servant of any one government• Key issues: appointment of judges (by whom); regional

representation on court; jurisdiction; independence; dual or unified legal system

• Legitimacy, enforcement

Second chambers in federal systems/1

• ‘’Senates’’ in Canada, US, Australia, etc. Bundesrat in Germany, National Council of the Provinces (South Africa), etc.

• Second chambers vary in terms of:– Method of selection– Distribution of seats– Term lengths– Powers– Role in the federal system

Second chamber roles

In a federal system:• To help central government pay attention to

regional interests• To ensure regional representation at center• To give greater weight to smaller regions• To assist in coordination, cooperation

between regional and central governments – in some countries, plays an important role in intergovernmental relations

Many other roles for second chambers

Second chambers are not only an element of federalism. They also serve other roles:

• Check on tyranny or majority– separation of powers

• Chambers of ‘’sober second thought” (Canada)• Ratification of treaties• Preserving independence of Electoral

Commission and other such agencies• Representation of other minorities: aboriginal

peoples, immigrants, etc.

Second Chambers/2

Methods of selection:• Appointment: – By the central government – Canada. Failure, calls

for reform in Canada– By the regional or provincial governments.

Germany (Bundesrat); South Africa (NCOP)– Primary role of provincial appointment:

intergovernmental coordination; provincial voice in national framework legislation

– Represents governments, not people

Second Chambers/3

Methods of selection: elected• Represents people, not governments; seems more

democratic US, Australia, Iraq• Method and timing of elections is critical• If same as lower house, Senate likely simply to

duplicate the lower House and make little contribution—question for Iraq?

• Hence – usually different election systems; different term lengths, etc.

• May link to provincial not federal elections

The German Bundesrat

• A fully federal body• Members are regional executives• Designed to achieve intergovernmental

coordination• In a system with many shared powers• Weaknesses in terms of democracy? A useful

trade off?• Borrowed by South Africa --NCOP

Second Chambers/4Numbers• Distribution of seats in representative chamber (COR)

is proportional to population• Second House may be used to temper the power of

larger units, and to give greater voice to smaller units• Methods: equal representation of regions (US) – two

Senators per state, large or small• Greater weight for smaller provinces, but not equality.

(Canada, Germany, Australia)• Illuustates double role of equality in federations –

equality of individuals, equality of constituent units

Second Chambers/5

Powers:• Equal to first chamber – e.g. US. Potential

problems: deadlock in divided government; departure from majority rule

• Equal to first chamber, with over-ride. First Chamber can over-ride laws or amendments by second chamber, usually with a super-majority

• Limited powers – role of second chamber focused on laws by central government that have major effects on units. Germany, South Africa

Second chambers/6

Length of term:

• Same as lower House• Longer terms -- US• Life (to 75) Canada

Canada debates Senate reform

• Method of appointment: federal. Seen as illegitimate• Result: equal powers in law; not in practice• Alternatives: election, provincial appointment• Numbers: fast-growing regions want more

representation; some want equal representation like US

• Terms: proposals for shorter – 8-10 years• Representation of different interests: women,

Aboriginals, immigrants, etc.

The Federation Council in Iraq/1

• Not well-developed in 2005 constitution• CRC improvements:– Will be in constitution, not a creation of the Council of

Representatives– Will be elected (not representatives of regional

governments). Pro and con.– Provides for larger representation of smaller units,

but without detail– Term of office: 4 years. Less than most federations.

The Federation Council/2Powers:• Can propose laws• Can consider laws ‘’related to regions and Governorates’’ –

not all laws. How decide?• If Council and Representatives cannot agree, COR may

prevail with 2/3 majority• Must approve appointments to major judicial positions,

and Chairpersons of major independent institutions• Questions: Has the CRC got it right?• UNAMI: Big improvement. But indirect election better.• Region/governorate distinction unclear.

Conclusions

• Basic point: to be effective the central government must be fully representative and reflect principles of power-sharing

• At the same time a national government needs to be able to make national decisions, articulate national goals, and provide leadership to the whole country

• Are these roles undermined, or promoted, by the representative, power-sharing model?