Jump to Content Jump to Main Navigation
Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Federalism

Mahendra Prasad Singh

Subject(s):
Central government — Decentralization — Delegation of power — Federalism

Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.

A.  Introduction

1.  The contemporary connotation of the term ‘federalism’ as a form of government is a development of late 18th century America. Its earlier usages were more extensive and diffused, denoting social and political formations at national as well as international levels, mostly the latter. It arose as an alternative term to the monolithic power structure of the sovereign state that emerged out of the Treaties of Westphalia (1648–1659) heralding the decline of the feudal Holy Roman Empire in Europe, referring to the plans for internal structuring of a single state as also for international organizations. National and international federal ideas developed together ‘because national federalism is essentially an internalization of a form of external relations (a union of ‘sovereign states’) while international federalism is essentially an externalization (‘world government’) of a political form characteristic of a single state’ (Riley 62–63). Modern states’ strong association with nationalism was a product of the French Revolution of 1789 (New World Encyclopedia).

2.  Among the classical modern theorists, Kant regarded a republican state within and an international confederation of such states internationally as a recipe for ‘perpetual peace’ in Europe (Karmis and Norman 57–89). In an exposition and critique of St Pierre’s Project of ‘Lasting Peace through the Federation of Europe’, Rousseau agreed with this idea in principle but averred: ‘No Federation could ever be established except by a revolution’ and added that ‘it would perhaps do more harm in a moment than it would guard against for ages’ (Karmis and Norman 59–85). Montesquieu, puzzled by the dilemma that a small republic is ‘destroyed by a foreign force’ and a large one ‘is ruined by an internal imperfection’, advocated ‘a kind of constitution that has all the internal advantages of a republican, together with the external force of a monarchical, government. I mean a confederate republic’ (Karmis and Norman 55–57).

3.  Among the contemporary modern theorists, although Riker (1964: 12–48) has offered an over-determinative theory of federal origins in terms of external military threat in modern times, a multi-factor explanation of federal state formation appears to be theoretically and empirically more persuasive. Watts and Kincaid (xi–xii) aptly draw attention to ‘two powerful, thoroughly interdependent, yet distinct and often actually opposed theories for federating’. For one thing, there is ‘the desire to build dynamic, efficient, and modern nation states (eg India and the United States (‘US’)) or supranational political systems (eg the European Union) for economic progress, for security, and for influence in the world arena’. For another, there is ‘the desire to express distinctive identities through smaller, directly accountable self-governing political units able to give expression to historical, social, linguistic or cultural diversity’.

4.  The idea of a federal state stipulates

a form which constitutionally divides power territorially between a central government and component local governments, such that while both central and local governments are states which are ‘independent’ and ‘supreme’ within their peculiar spheres and which operate directly on the same set of individuals, they constitute a system which is ‘unitary’ in respect to foreign relations (Riley 64; central government; component federal units).

5.  Watts (2008: 12) gives a list of 25 contemporary functioning federations or quasi-federations to which one more federation, Nepal, formed in 2015, may be added. Contemporary quasi-federations are more likely to come from Latin America, Asia, and Africa than from Europe and North America. This has been due to the greater failure of federal experiments in Latin America and lesser popularity of federalism as well as its floundering or fixation on quasi-federalism in Asia and Africa.

6.  Decline in the influence of the Papacy and gradual disintegration of the Holy Roman Empire saw the emergence of both unitary sovereign states like Great Britain and France as well as federative sovereign states like Switzerland and the Netherlands. The major legacy of the French Revolution was the modal category of unilingual European nation-states. Yet it could not stamp out federal state formations even in Europe. Early modern European federal thought can be best sampled in Germany in Johannes Althusius, Gottfried Wilhelm Leibniz and Ludolf Hugo. Although Riley (54) argues that Althusius’ Politica meant a complete integration of covenanting communities rather than a federal state, Heuglin (55) sees precursive federalism in the ‘corporate autonomy’ on which Althusius fundamentally based his political system. The federal ideas of Leibniz, Pufendorf, and Hugo are more unambiguous and are encapsulated in their concepts of ‘union’ and ‘double government’, respectively (Riley 77-80) (see also political philosophy of federalism).

B.  Historical Evolution of Main Models of Federalism

1.  The American Federal Model

7.  The American Revolutionary War of Independence against the imperial United Kingdom (‘UK’) (1775–1783) led to the Continental Congress, meeting in three phases between 1774 and 1789 which framed and governed under the Articles of Confederation and finally handed over power to the federal government of the United States of America (US) in 1789 constituted under the Constitution of the United States of America drafted by the Philadelphia Convention (1787). It crystallized the model of a federative ‘national state’ as contrasted from the model European ‘nation-state’ (for definitional differentiation between the two, see Oommen 23–25). The origins and formation of the US federation may be found in the continental European political philosophy and theory, the British imperial and colonial policies, practices, and politics in America. The British colonies there were kept separate on the ground under the common Crown connection at the imperial level. This created traditions of separateness as well as some elements of common rule, besides the geography inevitably engendering some feelings of continentalism. Distance from the imperial centre had also bred traditions of autonomous local governments in the colonies. Once the colonies rebelled and attained independence from the empire, some quasi-federal links including the idea of representation in the Parliament in London were also unfruitfully considered. However, despite initial reluctance for inter-colonial union on account of strong feelings of localism, more frequent and finally productive than imperial quasi-federative links were the plans for indigenous federative union among the colonies, preceding the Articles of Confederation and finally leading to ‘the more perfect union’ under the federal Constitution of 1787 (Burgess 2006: 50–75). Madison famously observed in The Federalist No 39 (1987: 195 [1787]) that the new constitution was ‘in strictness, neither a national nor a federal Constitution, but a composition of both’.

8.  The constitutional philosophy and theory of the first modern written federal democratic constitution based on the principles of horizontal tripartite separation of powers borrowed from John Locke and Montesquieu, dualist vertical division of powers created largely by the framers themselves, a powerful federal second chamber (bicameralism), and the bill of rights of citizens proposed by the ‘anti-federalists’ but belatedly conceded by the ‘Federalists’––and the probable institutional checks and balances––are elaborated by Hamilton, Madison, and Jay in The Federalist. Wheare in a post-World War II academic comparative study of federal systems tended to take a more or less US-centric view of federal theory as the model, treating departures from mutual autonomies of the two orders of governments in their existence and assigned exclusive jurisdictions as ‘quasi-federal’. This approach is generally pervasive in the book but particularly evident in the author’s comments on the Canadian and Indian constitutions and governments (pp. 18-20 and 26-28).

2.  Latin American Federations

9.  The Latin American Wars of Independence followed the American and French Revolutions, which had profound effects on the Spanish, Portuguese, and French colonies in South America. As a result of these national liberation struggles during the late 18th and early 19th centuries a number of independent countries emerged in South America. In the course of time most of them tended to adopt garbled versions of the US presidential system, including presidential federalism in case of larger ones among them (deviating from strict adherence to separation of powers, division of powers, and bill of rights), eg Argentina, Brazil, Mexico, and Venezuela. But neither democracy nor federalism could strike firm roots and stable continuity, partly for socio-cultural reasons and partly for the tendency of executive turning authoritarian in settings of weak civil society and market institutions and fragmented political culture. In their turn from authoritarianism to democracy, all the four major Latin American states showed some formal or informal inclination for strengthening federalism (Elazar 1991: 162, 178). Intermittently, Latin American federations showed new waves of constitutions that expanded not only civil and political rights but also social, economic, and cultural rights since the 1980s. However, the hard-core executive power concentrated at the top in the presidency was systematically maintained as in the past. The newly ‘grafted’ parts thus created ‘internally contradictory constitutions’. Thus, the structure of government impaired popular (as distinguished from populist) participation, preserved centralization, and allowed presidents to exercise domination over legislature and judiciary. A notable development in the region is Brazil’s Constitution of 1998 distinguished by a great deal of popular participation in its making and the creation and the institution of municipalities as federal rather than devolutionary constituent units of the federation with more resources of their own besides those received from the states (devolution).

3.  British Commonwealth Federal Models

10.  The pattern of British colonial rule in Canada and Australia were more or less similar to the US in vast geographical expanses and created common features of separation, isolation, and autonomies among colonies on the ground. In Canada, the British North America Act (1867) (now renamed Canada Constitution Act, 1867) produced a federal union enacted by the British Parliament for Canada. It was preceded by two conferences in Charlottetown and Quebec City in 1864 among leaders from the British North American colonies capped by a third conference in London in which the British government agents also participated. The consensus thus created provided the backdrop to the Canada Constitution Act of 1867. This Act itself was preceded by the Quebec Act (1774) and the Act of Union (1840) joining the Anglophone Ontario and Francophone Quebec into the province of Canada, which formed a federal union with Nova Scotia and New Brunswick in 1867, and soon thereafter the province of Canada was divided into Quebec and Ontario and the name Canada was given to the federation as a whole. This federal union kept expanding in subsequent centuries by joining of new Anglophone provinces and territories. The federal deal and its preservation from secession necessitated asymmetrical federal arrangements with Quebec to guarantee its special autonomies in language and French civil law tradition (Hueglin 2006: 116-117).

11.  Australia’s two constitutional conventions in 1891 and 1897–98 among leaders from the colonies produced a draft which was approved by a referendum and finally enacted into a Constitution Act by the British Parliament under which the Commonwealth of Australia came into existence on 1 January 1901, with states retaining their own constitutions subject to the overriding federal Constitution of Australia. Australia partially departed from the Commonwealth parliamentary-federal model by adopting a directly elected federal second chamber (Senate), provision of ‘double dissolution’ in case of deadlock between the House of Representatives and the Senate, and introduction of referendum for ratification of a constitutional amendment.

12.  In India, the British imperial rulers established a dual pattern of colonial rule comprising nearly a dozen British Indian provinces under the direct rule of the Crown-in-Parliament in London and 500-odd Indian princely states under a network of ‘subsidiary alliances’ with the Indian states predicated on the paramountcy of the British Crown. The separate British Indian provinces were first brought together under a common colonial centre in Calcutta and subsequently decentralized on a devolutionary basis under a series of Constitution Acts, culminating with the Government of India Act (1935) (decentralization). It was premised on a compulsory federal union among the provinces and voluntary one for the Indian states with at least a 50 per cent threshold of consent for its promulgation. This first federal Constitution Act in colonial India could only partially be implemented in the provinces holding elections in 1936 and forming partially autonomous elected ministries in 1937. On account of lack of consent from the princely states, the federal component of the Act remained in abeyance, excepting only the Federal Court of India set up in 1937. The central government continued to operate under the preceding constitution Act of 1919. On the eve of British withdrawal in the aftermath of World War II, the British Cabinet Mission (1946) offered a confederal scheme for independent India, which the Muslim League rejected out of hand. In the wake of independence with partition, the indirectly elected constituent assembly of India buried the confederal scheme and proceeded to frame a federal constitution with a strong parliamentary centre. Before the constituent assembly completed the making of the constitution in November 1949, the princely states had signed instruments of accession to India through diplomatic persuasion of Deputy Prime Minister and Home Minister Sardar Vallabhbhai Patel and his Secretary VP Menon, excepting Hyderabad and Jammu and Kashmir which also followed suit under military pressures from India in the first case and Pakistan in the latter.

13.  Canada, Australia, and India created the Commonwealth model of parliamentary-federalism in contrast to presidential-federalism in the US. At least three features in the former are different from the US model. These relate to relatively reduced autonomy of the federating units, weaker federal second chambers vis-a-vis popular parliamentary chamber, and fusion of powers between the legislative and executive branches of the government via the conventions or written constitutional provisions regarding the cabinet system. Moreover, Wheare (18-20) found that the Canadian Constitution was ‘quasi-federal’ but the government of Canada had become federal in its working. About India, his assessment was that both the Constitution and its government were ‘quasi-federal’, though in the opinion of later observers it has become federal in its operation since the 1989 transformation of its party system from one-party dominance to a multiparty system of regionalized pluralism (Singh and Verney 13-16).

14.  The US and Commonwealth models are constitutionally symmetrical in the sense of according equal status to states or provinces in practically all matters relating to rights of the constituent units, with the partial exception of Quebec in Canada and Jammu and Kashmir, Nagaland and Mizoram in India which are asymmetrically allowed some autonomies in legislative, legal, and judicial spheres. Such asymmetrical features are considered congenial to accommodating their cultural diversities and thus promoting national integration (see Section 93A of Canada Constitution Act (1867) (Can), and Sections 5 and 6 of the Supreme Court of Canada Act (1949) (Can); Arts 370 and 371A and G of the Indian Constitution (1950) (India)).

15.  India’s northern neighbour, Nepal, although never a colony and a member of the British Commonwealth of Nations, has recently (2015) adopted a parliamentary-federal constitution broadly similar to India’s. Nepal had been a centralized Hindu monarchy since 1768, although its expansion was subsequently contained by China and British India. A decade-long civil war in Nepal between Maoist insurgents and the semi-parliamentary monarchical state was brought to an end by a Comprehensive Peace Agreement in November 2006 among the seven major political parties. It included the agendas of the abolition of the monarchy, an interim parliamentary constitution, and a directly elected constituent assembly in 2008 to restructure the state democratically and federally; the federal idea was added rather belatedly on the demand of the Madhesis (the people in the Plains adjacent to the Indo-Nepalese border) and the janajatis (Hill and Plain tribals) which was conceded by the power elite (upper Hindu caste Bauns or Brahmans and Chhetris or Kshatriyas) from the Hills and the Kathmandu valley. The first constituent assembly failed to produce a constitution due to extreme political fragmentation during its four-year term and four extensions. The Supreme Court ruled in favour of a new constituent assembly which was elected in September 2013, which finally passed a parliamentary-federal Constitution with a third-tier federal rather than a devolutionary structure and provision for a referendum on an issue with parliamentary approval. The passage and promulgation of the Constitution of Nepal was instantly followed by violent and prolonged agitations by the Madhesi and Janjati parties, complaining reduction of their parliamentary representation by manipulating state boundaries and discriminatory citizenship provisions, with the government buying peace by initiating negotiations for amendments which have not fructified at the time of writing (early August 2017).

4.  European Federal Models

16.  Despite the legacy of the French Revolution favouring ‘nation-states’ over ‘national states’ in Europe, there are some notable federal variants—old and new—as well as marked by some unique and innovative features, eg Switzerland (1848), Germany (1949), Belgium (1993), to mention only the incontrovertible federal instances. Confederal beginnings in Switzerland go back to 1291 with the number of confederating cantons gradually increasing. Its federal Constitution was framed in 1848 in the wake of the Sonderbund Civil War in which seven conservative Catholic seceding cantons were vanquished by liberal Protestant cantons in 1847 and a federal compact was agreed upon the following year. The 1848 federal Constitution was ratified by popular votes of both citizens and cantons. This basic constitutional framework was marginally revised in 1874 and more recently 1999. A post-revolutionary federation was thus formed by sovereign cantons, which delegated parts of their sovereign rights to the confederation. Switzerland created a collegial presidential federalism with uniquely strong institutions of direct democracy and federative rather than devolutionary commune governments.

17.  In Germany, the complex pattern of semi-sovereign states with feudal autonomies survived the emergence of sovereign states in the trail of the Treaty of Westphalia (1648) and continued for the next century and a half. Territorial integration in Germany had to wait until the 1803 downfall of the Holy Roman Empire of the German Nation. In 1815 a confederation of German Union jointly controlled by Austria and Prussia was formed. An effort to form a federal state with a constitutional monarchy in Germany failed in 1848. Two decades later, the Prussian Chancellor Otto von Bismarck manoeuvred to oust Austria and formed a Union of northern and central Germany with Prussia, which in 1871 expanded to include the four southern German states thus giving rise to a new nationally unified federal German Empire under the King of Prussia. In World War I when the monarchy was abolished by the revolution of 1918, German federal leaders sought to establish a unitary democratic state like France but the German states refused to abandon the federal model. After the interlude of the ungovernable phase of the Weimar Republic in 1930 and an emergency regime, the Nazi takeover of power followed in 1933 when federalism was abolished. Following World War II, the Allied occupation powers and the Parliamentary Council comprising delegates of state parliaments resurrected the federal union under the Basic Law of the Federal Democratic Republic of Germany (‘FDR’) (1949), which over four decades later in 1990 culminated into the German unification by the accession of five East German states to the FDR.

18.  Given the German history, geography, and political culture, only a federal unification of German states was possible. Once established, federalism also proved difficult to permanently stamp out. The Bundesrat stands out as the key institution of German federalism coupled with a pattern of federal division of competencies in which the federal government is the repository of predominant legislative powers but states are predominantly given the administrative power, making the two orders of government heavily interdependent. In terms of historical path-dependency, the roots of this institutional pattern goes back to Bismarck, who as the Chancellor appointed by the Emperor headed a hybrid quasi-democratic system in which there was a directly elected representative unicameral parliament enjoying legislative and financial power but faced a government not responsible to it. Bismarck improvised a second chamber in a federal council comprising the semi-parliamentary monarchical state executives in a system in which administration was largely conducted by the constituent states. The present Bundesrat is not a conventional parliamentary organ, but it is integrally indispensable to parliamentary functions. Its members are delegates of Länder or state governments with an imperative mandate—ministers as members and senior bureaucrats as committee members. On ordinary federal legislations, Bundesrat enjoys only suspensive veto which can be overridden by an absolute majority of Bundestag (popular chamber). However, the Bundesrat has the power of absolute veto over ‘exceptional’ matters of vital importance to state governments, which in practice comprise over 50 per cent of federal legislations (Oeter 135–164).This makes it a unique institutional mechanism of checks and balances in horizontal tripartite separation of powers as well as vertical bi-partite division of powers exceptionally suited to the German federal system.

19.  Austria became a federation in 1918 at the end of World War I with volition of constituent Länder and was federally resurrected after World War II in 1945. Its Constitution provides for a heavily centralized division of powers without Länder representation in the federal second chamber (representation of component federal units in federal systems). This is partially mitigated by some procedures of formal and informal intergovernmental cooperation. Several efforts at reforming the federal system after Austria joined the European Union in 1995, and then again by a constitutional convention in 2003, have failed. Subsequently, a parliamentary select committee has been tasked with this objective but the prospects of federal reforms do not seem to be very promising.

20.  Belgium is a new notable federation in Europe which formally adopted a unique federal model marked by unprecedented non-territorial and asymmetrical features in course of its gradually incremental federalization of a unitary parliamentary monarchy since the 1970s. The motivation for the still evolving Belgian federalism stems from its complex linguistic and regional configurations. The country is marked by three linguistic communities—the Dutch, the French, and the German. The Dutch are predominantly settled in Flanders in the north, the French in Wallonia in the south, and the German in the east close to the border with Germany. The Brussels Capital Region is 85 per cent French-speaking but located in the north in Flanders close to the internal border. These atypical linguistic and regional configurations have given rise to complex ethno-regional tensions and at least two competing visions of federal union and different definitions of language rights and minority rights. The Dutch vision is primarily territorial-regionalist while the French vision is predominantly communitarian. All this has given rise to complex ethno-regional tensions and innovative federal experimentations. The community governments deal with regional aspects of linguistic and cultural issues, the regional governments with economic and political issues in the regional context, while the federal state deals with national and international dimensions of governance within a framework of considerable subnational autonomies. Predictably, Belgian federation offers prospects of solutions to tangled ethnic and regional identities but it has also faced immense difficulties in forming and maintaining stable governments.

21.  Spain is another European country which is considerably decentralized and is gradually evolving into a federal system. It is a constitutional monarchy with a parliamentary cabinet system headed by a premier elected by and responsible to the Congress of Deputies who is misleadingly called the President. The 1978 Constitution avoids the term ‘federal’ but Art. 137 provides for the organization of the country into ‘municipalities, provinces, and any autonomous communities’. Parliament grants upon any petition by a province or a group of provinces for the status of an Autonomous Community.

22.  Russia is the world’s most complex federal contrivance consisting of 89 constituent units classified into six different categories: republics, territories, regions, autonomous areas, autonomous regions, and federal cities. It is a combination of both ethno-federalism and territorial federalism like Belgium. Neither the Russian Empire nor its revolutionary successor USSR was a confederal or federal state. After the dissolution of the USSR in December 1991, a series of three treaties were signed to appeal to regional and ethnic elites by decentralizing powers and fiscal resources. In the aftermath of a violent confrontation between the Russian federal Parliament and President Boris Yeltsin, a new more centralized federation with features of unitary system was set up under the 1993 Constitution, combining principles of presidentialism and parliamentarism; it actually amounts to a presidential system. In principle, the President appoints the Prime Minister with the consent of the directly elected parliamentary chamber called State Duma and other federal ministers on the advice of the Prime Minister, but there is nothing to prevent the President to appoint ministers of his own choice as well. The President can also fire the ministry at his will. The federal second chamber called Federation Council comprising two members from each federal unit, one appointed by the regional governor and the other elected by the regional legislature. The Federation Council is supposed to oversee intergovernmental relations, approve President’s declaration of state of emergency or martial law, armed forces, internal security, and foreign policy. This house has at least some features in common with the German Bundesrat. The Russian federation is still evolving and beset with instability and reversion with authoritarian elements.

5.  Federations in Asia and Africa

23.  With notable exceptions, Asia and Africa in modern times have not been much hospitable to federalism as a form of government. Only five out of 48 Asia’s sovereign states (India: 1950; Malaysia: 1956; Pakistan: 1956, 1962, 1973; Burma (now Myanmar): 1947, 1974, 2008; Iraq: 2005; and Nepal: 2015) and three out of 54 African states—Ethiopia (1995), South Africa (1996), Nigeria (1960, 1963, 1979,1993, 1999), and South Sudan (2011) can be counted as federal, indeed, mostly quasi-federal. We have already discussed about India and Nepal above as well-functioning or relatively promising parliamentary federations in Asia. Pakistan, even after three failed or failing constitutions, and ambivalent between parliamentarism and presidentialism, has not become either democratic or federal, notwithstanding its much hyped 18th constitutional amendment (2010). As an expert has observed: ‘Even with the relatively empowered parliament, independent judiciary, free media, and vibrant civil society, Pakistan has yet to fully right itself on the path to substantial democracy and democratic federalism based on a complete autonomy for constituent federating units’ (Chandio 151).

24.  The Constitution of Iraq claims to be federal and democratic, with executive accountable to the Parliament and subnational units, eg Kurdistan and provision for more in future, subject to further parliamentary legislations or constitutions of regions. The division of powers is exclusively federal with several shared powers, with asymmetrical concessions granted to the Kurds in federal institutions, natural resources, and Kirkuk crude oil. Constitutional provisions concerning judicial independence appear somewhat ambiguous and insufficient.

25.  Burma had a promising start as parliamentary federal republic in 1948 which was undermined by a military coup in 1962. In 2008, the military junta promulgated a presidential Constitution with 25 per cent of seats in the Parliament and key ministerial posts reserved for the Army. Following peace talks with rebels of eight regional ethnic groups in October 2015, national elections were held a month later in which the National League for Democracy led by the Nobel Peace laureate Aung San Suu Kyi won hands down with the agenda of amending the 2008 Constitution, which is still in negotiation with an uncertain future at this writing (early August 2017).

26.  Michael Burgess (2012: 13) surveying the post-colonial federal scenario remarks: ‘The early appeal of the federal ideal among several groups and communities in some newly independent states quickly faded and had all but disappeared by the early 1970s’. The 1990s saw some federal beginnings or revivals in Ethiopia (1995), South Africa (1996), Nigeria (1999), and South Sudan (2011). Over the last four decades, Ethiopia, never a colony, went through the end of the monarchy as well as the military regime (1974–1991) and a shift from a centralized unitary state to a somewhat unconventional parliamentary-federal constitution. It was the product of a liberation movement waged by ethno-linguistic groups in different parts of the country. The executive consists of a President indirectly elected by the Parliament and a Prime Minister elected by the House of People. The federal second chamber of Parliament, House of Federation, has a special say in decisions of the executive concerning nationalities and federal division of revenues. The chief justice and his deputy are nominated by the Prime Minister and other judges are appointed by a federal judicial administrative council—and all approved by the House of People. The House of Federation is, uniquely in the world, the final forum for interpretation of the Constitution.

27.  South Africa has adopted a predominantly parliamentary system with a strong federal government. The bicameral Parliament consists of a directly elected National Assembly and a National Council of Provinces. The latter consists of a ten-member delegation from each province. It includes members of provincial legislatures drawn from different parties therein and of the executive. They must vote as instructed by their respective provincial governments (reminiscent of the German Bundesrat). The federal President (functionally equivalent to the Prime Minister in conventional parliamentary systems) is elected from among the members of the National Assembly and resigns as a parliamentarian on elevation to the presidency and forms his cabinet from among the members of the National Assembly. The judiciary appointed by the executive forms a common national hierarchy of courts with the powers of review of federal and provincial laws and final interpretation of the Constitution.

28.  Post-colonial Nigeria began as a parliamentary-federal system but suffered a military coup in 1966, which subsequently opted for a presidential-federalism in 1979. The existing Constitution of 1999, reviving the subverted 1979 Constitution, was given by the military to the people. Federalism in Nigeria is so heavily centralized that obsession of the political and military elites with national unity seems to practically smother federalism.

29.  South Sudan is Africa’s newest country that gained independence from Sudan in July 2011 at the end of probably the longest civil war in Africa. Comprising ten southern states of Sudan, it is one of the most diverse countries of Africa with over 60 major ethnic groups and a majority of people subscribing to indigenous African religions plus Christians and followers of Islam, escaping from Arabization and Islamization in northern Sudan. The interim Constitution of 2011 is provisionally presidential and federal to be replaced by a regular one under debate. In October 2014, President Salva Kir announced unconditional acceptance of a federal constitution including the right of the rebels to nominate a Prime Minister waiving his right to veto a nominee. A National Constitution Amendment Committee presented a draft constitution in April 2015 whose fate hinges on the elections due in 2018 regarding the peace agreement.

C.  Comparative Analysis of Federal Systems

30.  There has been a plethora of works on ideas and institutions of federal government and governance in modern times. Nevertheless, it is difficult not to agree with Michael Burgess (2006 1) that ‘while such a thing as federal theory does exist, there is, as yet, no fully fledged theory of federalism. At best there is partial theory based upon rigorous conceptual analysis and the pursuit of terminological precision. At worst, there is crass empiricism rooted in failure to develop concepts and define the key terms. Without this fundamental preparation it is not possible to engage in genuine comparative analysis that has theoretical implications’. In a nutshell, we have in the literature available heavily fraught comparisons with overstretched concepts and abundance of empirical narratives and data in quest of a coherent theory. There is no objective, even inter-subjective, consensus even on the concept and list of federal countries, let alone a theory and/or a paradigm.

D.  Federal Division of Powers: General

31.  Allocation of powers and responsibilities in federal constitutions may be delineated into four models: (i) the dualist, (ii) the concurrentist, (iii) integrationist, and (iv) regulatory and interventionist (distribution of powers in federal systems). To a considerable extent, division of powers in various countries depends on how the federation came to be originally formed. If it is what Stepan (19–34) calls ‘coming-together federalism’, ie formed by a union of previously independent states, eg the US and Switzerland or partly even Canada and Australia, most typically the pattern of division of powers is likely to conform to the dualist model or to the concurrentist model. If, on the other hand, it is a variant of a ‘holding-together federalism’, ie a result of a previously unitary state or colony seeking to federalize itself, eg Germany, India, Malaysia, and Nepal, the probable outcome is an integrationist or a regulatory model.

32.  In the dualist model exemplified by the US, Switzerland, and Canada, most powers are exclusively assigned to either of the two orders of government, which normally administer laws and policies separately by their own departments and civil services. Some functional overlaps may be there, but their scope and significance are rather limited. Residual powers are left with the state legislature, with the exception of Canada.

33.  Germany is the best example of the integrationist model, wherein, barring a few exclusive federal subjects like foreign policy and defence, most subjects are concurrently assigned to both orders of governments (exclusive and shared competences in federal systems). In concurrent jurisdictions, the federal government made national framework legislations (until a constitutional amendment in 2006 repealed it with prospective effect) to be supplemented but not contravened by the constituent units. Moreover, almost all federal and state laws and policies are administered and implemented by the administrative apparatus of the regional governments.

34.  The concurrentist model is characterized by enumeration of federal powers with the remainder impliedly left exclusively to the states or concurrently to both orders of government (enumerated powers in federal systems). The net result is a large number of concurrent powers. Australia displays this feature abundantly. In fact, even the US Constitution, despite enumerating only federal powers and leaving the rest to ‘the states and the people’, has in practice developed a large domain of concurrent powers in functional ways.

35.  Finally, the regulatory and interventionist model may be illustrated by the Constitution of India, which classifies legislative and taxation powers into three lists: Union, State, and concurrent. Residual powers are allocated to the Union Parliament. Two rather exceptional features are notable here. First, some exclusive state concerns are made subject to the ‘regulatory and developmental’ powers the Union Parliament for the sake of ‘national defence’ or ‘public interest’, eg water, mines and minerals, industries, and elections. Second, there are three constitutionally contemplated emergencies: (i) national emergency due to war or internal rebellion (Art. 352); (ii) emergency in a state in case of the failure of constitutional machinery (Art. 356); and (iii) financial emergency in case of threat to financial stability or credit of India or any part of it (Art. 360). In all these emergencies, the constitution temporarily becomes unitary.

1.  Federal Division of Powers: Legislative

36.  Distribution of legislative powers in various federal constitutions is too complex to classify them into any neat logical schema such that each category is mutually exclusive and jointly exhaustive. This is as much true of the first modern federation in the US as any including the latest, Nepal. The only generalization possible is that all have impliedly or explicitly some powers exclusive to each order of federative governments, some powers that are concurrent, and some powers that are residuary. Beyond it, there are no common patterns nor common modes of allocations. The US Constitution, for example, in its Art. I (Sections 8, 9, and 10) lists legislative powers under three heads: legislative power, limits on federal legislative power, and limits on States. Congress figures prominently again in related contexts of admission of new states into the Union (an exclusive power) and creation of new States (with the consent of the legislatures of the concerned States) (Art. IV, Section 3) and amendments to the Constitution (shared with the three-fourths of the State legislatures or three-fourths of ratifying state Conventions) (Art. V). The Tenth Amendment to the Constitution granted residuary powers ‘to the States respectively, or to the people’.

37.  The principle underlying the division appears to be subsidiarity (ie power should rest at the State level instead of the Union level unless the latter presents clear rationale). It was partly dictated by the fact that previously independent states had first framed a confederal Constitution and subsequently revised it to form a ‘more perfect Union’ which was seeking to make a hopelessly weak common government vis-à-vis uniting States more workable. Thus, the Congress was granted powers on matters of national importance like common defence and general welfare of the US, borrowing money on the credit of the US, interstate and international commerce, uniform laws of naturalization and bankruptcies, currency and coinage, postal services, crime on high seas and international law, war and peace, navy, regulation of land and naval forces, federal Capital District, legislations relating to the forgoing and any other powers vested by the Constitution in the government of the US, etc. The federal divisions of powers in the Constitution evidently reflects the principles of federalism and tripartite separation of powers among the Congress, the Presidency and the Supreme Court.

38.  Switzerland, a small but culturally divided national state (in terms of languages and Christian religious sects) founded a federal system in 1848 under a Constitution most recently amended in 1999. Art. 3 of its federal Constitution provides that that the constituent cantons ‘are sovereign insofar as their sovereignty is not limited by the federal Constitution; they shall exercise all rights which are not transferred to the Confederation’. In the US and in Switzerland, as mentioned above, the federal union was formalized in the wake of a revolutionary war of independence or unification. Two distinctive characteristics of the Swiss federation are its direct democracy at federal, cantonal, and commune levels and its political neutrality in international affairs. Division of powers in a large number of areas are either federal or cantonal. The former include international relations, defence, monetary policy, customs, postal/telecom/mass media, railway, aviation, atomic energy, water power, national roads, trade/industry/labour laws, social security, environmental policy, etc. the latter include police, church, secondary school and university education, cantonal roads, etc. There are, however, several shared responsibilities, eg agriculture, civil and criminal law, taxes, etc. A distinct feature of the Swiss federation is that its local governments are also federal rather than devolutionary, as is also the case with the recently promulgated Constitution of Nepal. Constitutional local jurisdiction in Switzerland include local roads, local public transport in cities, local gas, electricity, water supply, waste disposal, primary schools, public care, etc.

39.  Canadian federation is a product of the desire of the British North American colonies ‘to be federally united into One Dominion under the Crown of the United Kingdom…with a Constitution similar in principle to that of the United Kingdom’. Sections 91 and 92 of the British North America Act (1867), now renamed since 1982 as the Canada Constitution Act, 1967, deal with the federal division of powers. Section 91 enlists 28+1 subjects of federal jurisdiction, eg public debt and property, regulation of trade and commerce, unemployment insurance, taxation, borrowing money on public credit, federal civil services, postal services, census and statistics, defence, lighthouses, navigation and shipping, quarantine and marine hospitals, sea coasts and inland fisheries, interprovincial ferries, currency and coinage and banking, weights and measures, interest rate, bankruptcy and insolvency, patents and copyrights, aboriginals and their Reservations, naturalization and aliens, marriage and divorce, criminal law and procedure excepting courts of criminal jurisdiction, penitentiaries, etc.

40.  Section 92 deals with 16 exclusive matters of provincial jurisdictions, eg direct provincial taxation, provincial borrowing on the sole credit of the province, provincial civil services, provincial lands, public and reformatory prisons, provincial hospitals, asylums and charities, municipal institutions, licensing shops, local works and undertakings, incorporations of companies with provincial objectives, solemnization of marriages, property and civil rights, administration of justice including creation of provincial courts of civil and criminal jurisdiction and civil procedures in those courts, punishment for infringement of provincial laws, matters of merely local or private nature in the province, etc. Residuary matters not specifically mentioned in the Constitution are considered as federal powers.

41.  The Canada Constitution Act (1982) supplements the 1867 Constitution with (i) a Charter of Rights and Freedoms of Canadians, (ii) with a new amending formula for the Constitution of Canada, which was earlier amendable only by the British Parliament on the request of government(s) in Canada, and a provision about the first ministers’ conference as a mechanism of intergovernmental relations what Canadians call executive federalism.

42.  The Constitution of the Commonwealth of Australia formed a federation in 1900 in a process broadly comparable to Canada under a context not too dissimilar, but with a more decentralist inclination, probably due to a continental insularity and security in the Australian case. The Australian Constitution clearly demarcates the powers between the federal and state governments. Exclusive federal jurisdictions include customs and excise duties (Section 90), naval and military forces (Section 114), and coinage (Section 115). Concurrent powers shared by both orders of governments include international trade and commerce, taxation, postal/telegraphic/telephonic services, marriage/divorce/custody of children (Section 51). In concurrent jurisdictions, federal laws prevail in case of conflict and to the extent of inconsistency (Section 109). The rest of powers unassigned to any of the two orders of governments are left with the states, eg law and order, commerce and industry, primary production, education, housing, transport, development, public health and social welfare issues, etc. (Section 108).

43.  The German Basic Law or Constitution specifies fairly long lists of areas of exclusive and concurrent federal legislative powers while Länder or state powers are left un-enumerated as substantial unspecified residual powers. Examples of exclusive federal jurisdictions are foreign affairs, federal citizenship, freedom of movement, immigration/emigration/extradition, currency and coinage, standard weights and measures and time, unity of customs and trading areas, internal and international trade, air transport, federal railway, posts and telecommunication, legal status of persons employed by federal government and federal corporate bodies, industrial property rights, copyrights, federal-state cooperation in criminal police and control of inter-state and international crime, protection of the Constitution and free democratic basic order, statistics for federal purposes, etc. Concurrent legislative powers include civil and criminal law, legal profession, registration of births/deaths/marriages, the law of association and assembly, law relating to residence and settlement of aliens, refugee and expellee matters, public welfare, war damage and reparations, benefits to veterans and disabled and dependents of soldiers killed in war and to prisoners of war and victims of war and despotism, laws relating to mining/industries/power supply, crafts/trades/commerce/banking/stock exchange/private commerce, labour laws, regulation of education and training and promotion of scientific research, expropriation laws vis-à-vis matters enumerated in exclusive federal and concurrent lists, transfer of land/natural resources/means of production to public ownership or other collective enterprise for public benefit, prevention of abuse of economic power, promotion of agriculture and forestry, food supply, preservation of coasts, coastal and deep sea fishing, housing, public health, medical profession, viability of hospitals and regulation of hospitalization fees, inland/coastal/ocean shipping, road traffic and motor transport, highways, non-federal and non-mountain railroads, state liability with the consent of the Bundesrat or Senate, artificial insemination, regulation of organ transplant, genes research, etc.

44.  There is a separate Chapter X in the Constitution on Finance dealing with distribution of powers regarding tax laws. The federation has exclusive power to legislate on customs duties and fiscal monopolies and concurrent power to legislate on the remainder of taxes revenue from which is allocated wholly or partly to it or to the extent federal legislation is congenial for ensuring equal living condition in the federation and for legal and economic unity. The states have power to legislate on local excise taxes which do not overlap with federal taxes. The consent of the Bundesrat is required for federal laws relating to taxes receipts from which accrue wholly or partly to the states or communes.

45.  In addition to concurrent powers, there was a provision in the Basic Law called Framework Legislation (Art. 75) whereby the Federation was enabled to limit the exercise of exclusive state legislative function in certain fields and to a certain extent under the so-called Clause of Need. However, it was repealed by the 52nd amendment in 2006, but a new Art. 125b inserted by it saved the continued applicability of existing Framework laws.

46.  In Germany, India, Malaysia, and Nepal there are fairly extensive lists of both exclusive federal and state legislative powers as well as concurrent powers constitutionally specified. The tripartite list in the 7th schedule of the Indian Constitution is heavily borrowed from the Government of India Act (1935), enacted by the British Parliament but only partly operationalized in British India, as already mentioned in a previous section above. The principles of subsidiarity and national unity are sought to be ingeniously reconciled in the Indian Constitution which is designed as a federal device in normal times but can be transformed into a unitary one in national, regional, or financial emergencies. This is somewhat reminiscent of the War Measures Act (1914), in Canada, and the states of emergency or tension determinable by a two-thirds majority of the Bundestag in Germany.

47.  Exclusive federal jurisdictions in India include matters of national/federal importance such, for example, as defence, atomic energy, foreign affairs, war and peace, citizenship, immigration, emigration, expulsion, central investigation, preventive detention, railways, airways, maritime shipping and navigation, posts and telecommunication, currency and coinage, foreign exchange, foreign trade, inter-state commerce, banking, insurance, stock exchange, standard weights and measures, fisheries beyond territorial waters, film censor, national and state elections, surveys of India, census, central and All-India Services, audits and accounts of the Union and states, inter-state migration and quarantine, non-agricultural income tax, customs and export duties, corporation tax, etc. Exclusive jurisdictions of state governments comprise public order and police, local government, public health and sanitation, agriculture, land and water, fisheries, industries, mines, gas, intra-state trade and commerce, markets and fairs, money lending and agricultural indebtedness, stage and theatre, state civil services, land revenue and agricultural income tax, excise duties, advertisement tax excluding those in newspapers, vehicle tax, tax on animals and boats, tolls, tax on professions/trades/employment, capitation taxes, luxuries and entertainment taxes, stamp duty other than those in the Union List, state government institutions, local elections, etc. Some matters in the State List like industries and mines are expressly made subject to Union regulatory and developmental legislations in the domain and if a matter is declared by Parliament of national importance. Concurrent List is also quite large though not as much as the Union and State lists. Examples of concurrent jurisdiction are religion-based personal and family laws, civil and criminal procedures, education, public health, forests, food adulteration, economic and family planning, commercial and industrial monopolies/combines/trusts, trade unions and industrial and labour disputes, social security and social insurance, legal/medical/other professions, relief and rehabilitation, vital statistics, trade and commerce, price control, factories, electricity, newspapers, books/printing presses, requisition and acquisition of property, goods and services tax, jurisdiction and powers of all courts except the Supreme Court, etc. Art. 258 reserves residuary powers for the Parliament of India. As in other federations, the foregoing distribution of powers is subject to change by constitutional amendment and judicial interpretation and review.

48.  The foregoing discussion suggests an evolutionary law of expanding specification and enumeration of exclusive and concurrent powers and diminishing residuary powers in comparative federalism.

2.  Federal Division of Powers: Executive

49.  In Anglo-Saxon as well as in some Commonwealth federations like the US, Canada, Australia, as well as India at least in parts, division of legislative and executive powers are coterminous. Paradoxically, this appears to be consistent with both the principles of separation of legislative and executive powers as well as fusion of these powers. For if, on one hand, it underlines the autonomy of the legislative branch from the executive branch in administration of laws, it also enables each order of governments to implement or at least to oversee the implementation of its own legislations, on the other. In parliamentary federations it is consistent with legislative control over executive.

50.  In contrast, in European federations, especially Switzerland and Germany, though not in Belgium, allocation of legislative and executive powers do not overlap or coincide. Nevertheless, the implementation of federal laws in concurrent jurisdictions there falls squarely on the state governments. There are constitutional provisions in certain cases of additional works required to be carried out by state governments to be compensated by federal financial assistance. This is also the case in India.

51.  Art. 256 of the Indian Constitution puts the obligation on a state government to exercise its executive power in a way to ensure compliance with the Union laws, and the executive power of the Union extends to the giving of such directions to a state government as may appear to the Union government necessary for this purpose. Moreover, by mutual agreement, the Union government may confer some powers to a state government and the latter may entrust some functions to the former (Arts 258 and 258A). India also has a unique cadre of the All India Services (AISs) recruited by the Union Public Service Commission, trained in Union academies and in the field in states and assigned to state cadres, who occupy the top echelons of administrations in Union (on temporary deputation) as well as in state governments. They serve under disciplinary control of whichever order of government they may be working for at a particular period but they can be dismissed only by the President of India. A few cases over the years show that in case of disputes in these matters, the AIS officers do lodge complaints to the Union Home Ministry if rubbed wrongly by a state government, but the matter finally tends to end up going to the Supreme Court for preferred judicial and judicious rather than intergovernmental and political closure of the issue.

3.  Federal Division of Powers: Judicial

52.  Shorn of details and in the realm of constitutional adjudication, there are two types of judicial systems in comparative federalism (judicial systems in federal systems). Firstly, there is a broadly integrated judicial system in which a Supreme Court functions as the final court for all kinds of laws—constitutional, civil, criminal, administrative, fiscal, etc.—as in the Common Law countries like the US, Canada, Australia, and India. Secondly, there are separate specialized constitutional courts as in European Civil/Roman Law federations like Germany, Belgium, and Spain (excepting Switzerland where the Federal Tribunal exercises judicial review power on cantonal laws only, with the validity of federal laws being determined by a legislative referendum). Moreover, another generalization that can be made is that a federation may have either a broadly single hierarchy of courts, with some degree of regionalization at lower levels or a dual court system with multiplex hierarchies. The former category is illustrated by the Commonwealth parliamentary federations in Canada, Australia, and India, while the latter is generally characteristic of the presidential federal US and European federations.

53.  Beyond the foregoing, federal judicial systems contextually differ in details from one country to another. In the US, for example, federal and state constitutions differ; in addition to the Supreme Court of the US, there are in the federal chain Federal Courts of Appeal, Federal District Courts, Court of International Trade, Court of Claims, and Court of Military Appeals. Each state has a court system different from and independent of the federal government with trial courts at the bottom and appellate courts at higher levels capped by a state Supreme Court.

54.  A civil law country with separate federal and cantonal constitutions and true to the ideal of cantons’ sovereignty to the extent not constrained by federal constitution and law, cantonal courts are organized in civil, administrative, and criminal courts of first instance and appeals. In 2011, Switzerland replaced its different procedural rules for civil cases in each canton and adopted a unified Swiss Code of Civil Procedure. The Swiss Criminal Code provides for the adjudication of most cases at the cantonal level, excepting federal crimes such as terrorism. Levels of appeal differ in various cantons, but in majority of cantons there is one higher court of appeal. The final court of appeal is the Federal Supreme Court, whose jurisdiction is limited to determining if the relevant federal laws are applied correctly to the case. Administrative law disputes arising out of decisions of federal authorities are subject to a separate administrative court of appeals in cantons or the Federal Administrative Court. The final appeal may be made in the Federal Supreme Court.

55.  Canada, where the federal and provincial Constitution is common, has four-tier integrated courts, ie provincial and territorial courts established by provincial and territorial governments, provincial and territorial superior courts with plenary or complete jurisdictions set up under Section 96 of the Constitution Act of 1867 for dealing with serious crimes and also appeals from provincial and territorial courts. The Federal Court of Canada has jurisdiction over civil matters under statutes concerning such matters as immigration and patents. Then there are provincial and territorial courts of appeals, capped by the Supreme Court of Canada as the final court of appeal for all cases.

56.  There is a certain degree of apparent duality of courts in Australia. Adjudication powers are divided along federal and state jurisdictions. Federal jurisdiction is vested in the apex High court and the Commonwealth of Australia’s Constitution authorizes the Parliament to create other federal courts. But the federal Constitution left intact the pre-existing colonial court hierarchies. But this dualism is made interdependent as the apex federal court, separate from and independent of state governments, is a court of final appeal on issues in state as well as federal jurisdictions, and is empowered to confer federal jurisdiction on state courts instead of the federal government setting up a court hierarchy of its own.

57.  Judicial power in Germany is exercised by a specialized Federal Constitutional Court, Federal Courts of appeal with jurisdiction on justice, administration, finance, labour, and social security cases, and Lander courts. Federal Constitutional Court rules on interpretation of the Basic Law, compatibility of federal or Land laws, basic rights of citizens, infringement of municipal right to self-government by laws of higher orders of governments, and non-recognition of political parties for election to the Bundestag, etc. Corresponding to the judicial structure at the federal level there are Land-level courts to adjudicate on matters within Land jurisdictions. There is a four-tier structure of general courts: local courts, regional courts, Land appellate courts, and Federal Court of Justice, which serves as the final court of appeals for all cases originating in the regional and appellate courts and has no original jurisdiction.

58.  India has a three-tier structure of courts whose organization as well as jurisdictions are partly regionalized and yet nationally integrated. There is the Supreme Court of India at the apex, High Courts in states, and subordinate courts in districts. Supreme Court and High Court judges are appointed by the President of India on the advice of a collegium of Superior Court judges in consultative interaction with the Union cabinet since 1993/1999 under case law (Supreme Court Advocates-on-Records Association v Union of India (1994) (India); Presidential Reference (in re) (1999) (India)). (They were earlier appointed by the President on the advice of the Union cabinet in consultation with superior court judges, Arts 124 and 217 of the Constitution.) Appointment of district judges in any state is made by the Governor of the state in consultation with the High Court exercising jurisdiction in relation to such state (Art. 233). Both the Supreme Court and High Courts have specified original as well as appellate jurisdictions in all kinds of civil and criminal cases from lower courts. But only the Supreme Court and High Courts exercise power of constitutional adjudication including the power of judicial review on intergovernmental and fundamental rights disputes under the Constitution and on constitutional amendments disputes under case law since 1993 (Kesavananda Bharati v State of Kerala (1973) (India)). Laws declared by the Supreme Court of India are binding on all courts within the territory of India (Art. 141). The control of a High Court in a state over the subordinate judiciary is comprehensive, exclusive, and effective in the interest of independence of the judiciary, which is declared to be a basic feature of the Constitution and for this reason unamendable (Prakash Singh Badal v State of Punjab (2007) (India)).

4.  Fiscal Federalism

59.  Federalism is not only a mechanism of political governance but also an instrument for sharing the wealth of the nation. Fiscal federalism (fiscal federalism) deals with the tax-base and revenue-sharing arrangements. A global dialogue on fiscal federalism organized by the Forum of Federations, Ottawa, has presented a 12-nation study of federal and quasi-federal countries—Australia, Brazil, Canada, Germany, India, Malaysia, Nigeria, Russia, South Africa, Spain, Switzerland, and the US—on which the discussion in this section is drawn on (Shah 370-393). Its argument is that the constitutional division of powers in the case study countries generally conforms to the subsidiary principle and cultural and historical legacies of dominant central role. It goes on to add: ‘The overall role of intermediate orders of government is the strongest in Switzerland and Canada; fairly strong in the United States, Brazil, and Australia; and relatively weak in other federations, with the weakest being in South Africa’ (Shah 378–9). Tax base and rate determination can be classified into (i) highly centralized (75 per cent or more central revenues): Malaysia, South Africa, and Australia; (ii) centralized (60 to 75 per cent of revenue collected by the centre: Brazil, India, the US, and Russia; and (iii) decentralized (40 to 50 per cent at the centre): Canada, and Nigeria. Expenditure autonomy (percentage of expenditure financed by the states’ own source of revenue) is high in Malaysia, Nigeria, Switzerland, Germany, Canada, and the US but low in India and Spain (Shah 380). A greater degree of harmonization of income tax and sales tax system is achieved in Australia, Canada, Germany, Malaysia, Russia, Spain, and Switzerland in contrast to that in Brazil, India, and the US (Shah 381). The borrowing rights of different orders of governments vary considerably in the sample countries (Shah 382–3).

60.  Coming to fiscal federalism and macroeconomic management, among the major issues that figure prominently in various sample country studies are (i) the vertical fiscal imbalances, (ii) inter-regional economic disparities, and (iii) promoting social and economic union through national minimum standards of social and infrastructural services. In pursuit of bridging vertical fiscal gaps, revenue sharing, and equalization grants are being made in Brazil, India, Malaysia, and Nigeria; tax base sharing and tax-by-tax sharing is being resorted to in Germany; fiscal need equalization transfers are existent in Australia, Spain, and Russia. Most country studies show the reversal of federal fiscal surplus into federal fiscal deficit in the process. The foregoing fiscal equalization transfers are also used to address regional economic disparities in Australia, Canada, Germany, Spain, Malaysia, and Russia, though not in the US. Germany and Switzerland are exceptions to these federal fiscal equalization payments. In Germany, the richer states make contributions to this cause, and in Switzerland a mixed pool of contributions from the federal government and wealthier cantons has been effective in 2008. Output-based (performance-oriented) grants are a better practice which demands accountability from the grantees, but the practice more common in the sample countries in this study is less exacting input-based grants that entail pork-barrel politics. Notable exceptions in this regard are federally financed education and health services in Brazil, Canada, and South Africa and highway finance in the US (Shah 388–393).

61.  A recent landmark taxation reform in India must be taken note of here. Interstate commerce is required to be free and the Constitution provides for the appointment of a national interstate commerce commission to ensure it. Its appointment is still put in abeyance but sooner or later, with the growing emergence of a national market economy, it is going to be an important area of intergovernmental relations and federal adjudication. Recently (mid-2016), the 122nd constitutional amendment and a slew of conforming parliamentary and state legislative enactments prepared the ground that eventuated into the rolling out of an integrated goods and services tax (‘GST’) merging a wide range of federal and state indirect taxes and settling their sharing pattern from 1 July 2017, and the formation of a GST Council consisting of Union and state finance ministers with a two-thirds majority for the states. However, important items like petroleum products, alcohol, electricity, and real estate remain in the list of exemptions and rates vary a great deal for lack of intergovernmental consensus. Moreover, the GST Council is obviously more limited than an interstate commerce commission for a unified and more comprehensive common national market.

5.  External Relations

62.  Realist theory of international relations remained unscathed by the federal theory of intergovernmental relations (powers of foreign policy and national defence in federal systems). This sovereignist or centralist view has, however, been changing at least since the 1960s under new developments in federal states themselves whose subnational governments began to demand participation in international affairs; there were also trends towards supranational regional integration and more recently globalization. The new trend of thought went beyond the earlier idea that recognized the role of subnational states only in implementation of international treaties and agreements concluded by the central government. Subnational governments increasingly asserted right to establish their own representative offices in foreign countries in addition to their country’s federal official diplomatic mission abroad. Perhaps pioneered by Quebec in Canada, such subnational representative offices are increasing in number set up by US states and German Länder. Subnational states are now insistently keen on codetermination of foreign policy and treaty making at least in matters that vitally affect their exclusive concerns and regional interests. In an era of increasing supranational regional and global integration, practically all issues are acquiring such a dimension and nature. Hence federal states are going beyond the classical US practice of ratification of all federal treaties by the Senate by virtue of being the federal second chamber. Even in the Commonwealth parliamentary federations like Canada, Australia, and India, where the treaty making power is a prerogative of the federal executive, the practice of consultation with subnational state governments in the intergovernmental forums of executive federalism has either already become established or pressures for it are mounting.

E.  Judiciary and Federal Divisions of Power

63.  Judicial review has been an independent factor that has invariably altered the constitutional demarcation of jurisdictions outlined above. For example, although the US Supreme Court has protected both state powers and federal powers since 1789, on the balance the court has been, by and large, centralist, especially since 1937. Among others, a sample illustrative debate on the nature of the American federal union can be found in US Term Limits v Thornton (1995) (US). There have, of course, been numerous shifts in the Court’s position depending on changing times and contexts. Following the Civil War (1861–1865), the Court began a 70-year period of putting significant limits on federal powers, eg Paul v Virginia (1869) (US); United States v EC Knight (1895) (US); Civil Rights Cases (1883) (US); Hammer v Dagenhart (1918) (US). Nevertheless, the Court upheld federal economic regulations in a variety of fields, and in Massachusetts v Mellon and Frothingham v Mellon (1923) (US), which related to Congress’ power to spend for the ‘General Welfare’, the Court also discouraged the states to challenge the constitutionality of conditions (ie regulations) attached to federal grants-in-aid to state and local governments. Beginning in 1937, the Court changed course from blocking the expansion of Congress’ powers, eg NLRB v Jones and Laughlin Steel (1937) (US) and United States v Darby (1941) (US). It abandoned most of its restrictive pre-1937 approach to Congress’ commerce powers. In Steward Machine Co v Davis (1937) (US) and Helvering v Davis (1937) (US), the Court upheld the constitutionality of the federal Social Security Act of 1935. In Wickard v Filburn (1942) (US), the Court ruled that the Agricultural Adjustment Act of 1938 allowed the federal government to regulate wheat growing by farmers for purely home consumption. Between 1937 and 1995, the Court did not declare any federal law as ultra vires of Congress’ commerce power because it authorises federal regulation of any activity that appears on a ‘rational basis’ to be adverse to interstate commerce. The National League of Cities v Usery (1976) (US), which had disallowed regulatory measures in the federal Fair Labor Standards Act of 1938, was overruled in the landmark case Garcia v San Antonio Metropolitan Transit Authority (1985) (US). The Court’s majority held that the constitutional division of powers between the federal and state governments instead of being policed by the Supreme Court ought to be determined by the political process because state governments can defend their interests through the Congress. However, a new turn in judicial behaviour appeared in United States v Lopez (1995) (US) and United States v Morrison (2000) (US) as the Court, departing from the trend set since 1937, struck down federal statutes on the ground that they exceeded Congress’ commerce power. However, these two decisions have not changed judicial support for expansions of federal power, as reflected especially in Gonzales v Raich (2005) (US) in which the Court ruled that the Commerce Clause allows Congress to ban the possession and production of medical marijuana even when the drug never crosses state borders or is commercially marketed anywhere widely. In South Dakota v Dole (1987) (US), the Court reaffirmed its doctrine that Congress has broad power to attach conditions to grants to subnational governments. However, in NFIB v Sebelius (2012) (US), the Court declared ultra vires a condition attached to the intergovernmental Medicaid programme as being unconstitutionally coercive, but the ruling is not likely to become precedent as the case was atypical. Notably, however, most of the few recent decisions declaring federal laws unconstitutional were 5–4 rulings that confronted the Court’s thin conservative majority against the liberal minority. New centralizing trends are also there where the Supreme Court rulings have restricted the states’ powers directly applying the US Bill of Rights to state and local governments. For example, in Obergefell v Hodges (2015) (US), the Supreme Court annulled state prohibitions of same-sex marriage, including prohibitions in about 28 state constitutions. (My discussion of federal adjudication in the US draws on Kincaid and Tarr (eds) (2005); and my personal communications with Kincaid, 20 June and 20 July 2016.)

64.  In Canada, the Judicial Committee of the Privy Council, which was the final court of appeal until 1949, was consistently pro-provinces. The record of the Supreme Court in federal judicial reviews has been mixed and arguably balanced, eg General Motors v City National Leasing (1989) (Can); Reference re Resolution to Amend the Constitution (Patriation Reference) (1981) (Can), among others (Hogg and Wright 348-350). In the decades around the turn of the century the ‘Peace, Order, and Good Government’ federal powers have been considerably expanded by the doctrine of provincial inability test. The continuing importance of judicial intervention in unspecified emergent fields such as environment has been necessary for setting a legal baseline to preclude political manoeuvring from waylaying national concerns (Baier 159).

65.  The Australian High Court has been more or less steadfast to its traditional penchant for legalism or literal readings of the enumerated powers given to the federal government in the Constitution Act backed by specific doctrines developed along the way to clarify the scope of federal powers in relation to external affairs and the Corporations power. It has generally enabled the federal government in its bid to establish its fiscal dominance over the states. However, since the Tasmanian Dam case, Commonwealth v Tasmania (1983) (Austl), the Court has been more circumspect with its doctrine and it ‘has since retreated from that loose [centralist] application and has been more measured in its recent rulings’ (Baier 158). The Court has generally maintained that if Section 96 of the Constitution reads ‘on such terms and conditions as the Parliament thinks fit’, that`s what it means. However, a mild retreat from this legalism and unconcerned stance to its implications for federal balance is evident in its decisions in Melbourne Corporation v Commonwealth (State Banking) (1947) (Austl) and the approach adopted by Menzies, Welsh and Gibbs JJ in Victoria v Commonwealth (Payroll Tax) (1971) (Austl) (Hanks 524). Commenting on two recent cases—New South Wales v Commonwealth (2006) (Austl) and Thomas v Mowbray (2007) (Austl) in which challenges to the expansive use of federal powers have been overruled by the court, Saunders (40-41) laments that the judicial review has long been characteristically nationalist rather than federalist and deficient in developing adequate doctrines of the latter orientation. She maintains that the Court has betrayed that: ‘As a constitutional principle, federalism does not have the same cachet as separation of powers or rights protection and its contribution to the constitutional system is less well understood’. She finds this ambivalence intriguing as federal division of powers ‘as the moving cause for bringing the Constitution into being as a fundamental law’. She underlines the importance of this fact for Australia as well as for the emerging new federations in the world today.

66.  In India, from a highly centralist, almost unitary, interpretation of the Constitution by the Supreme Court in State of West Bengal v Union of India (1963) (India), there has been a shift to a more balanced position in State of West Bengal v Kesoram Industries Ltd (2004) (India) and in Supreme Court cases 2013–14. In a more general way, the court has also moved to an activist federalist position propounding the judicial doctrine of unamendability of the ‘basic structure of the Constitution’ in Kesavananda Bharati v State of Kerala (1973) (India), and reiterating that federalism is one of these features which is immune to amendment in SR Bommai v Union of India (1994) (India).

67.  There is an interesting area of federal adjudication in India that is worth-noting for paradoxical reasons. Inter-state river water disputes are intended by the Constitution to be settled politically, allowing the Parliament to so enact a law to preferably keep the constitutional Courts out of the loop, which it has actually done. Yet the political processes more often than not linger on endlessly and also get deadlocked and beg judicial intervention.

68.  In all the foregoing countries, adjudication of federal jurisdictional disputes is typical of common law tradition. A civil-law model of centralized judicial review by a specialized constitutional court with well-defined exclusive jurisdiction is found in Germany, Austria, Belgium, and Spain, among others (Watts 159). The Bundesverfassungsgericht, the German constitutional court, enjoys powers of abstract and substantive judicial review of federal as well as Länder laws and their implementation by Länder administrations only on appeals by either of the two orders of government. Appeals for substantive review enjoyed a short spell of popularity in the 1950s but now both the federation and the Länder tend to prefer abstract constitutionality challenges due to less stringent admissibility conditions (one-third of Bundestag members as petitioners) and deadline (six-month time limit from the act or omission complained about) (De Visser). The German court ‘in general has not reflected any particular bias or policy in favour of the national government or the States’; methodologically, it ‘has indeed often followed a textual approach, supplemented by references to the historical developments and to the requirements of federalism as they are determined by the system inherent in the Constitution’ (Dolzer 75–76). Nevertheless, the Court has jurisdiction over both orders of governments and it has at times declared acts of governments void on constitutional grounds. Under Art. 19(3) amendments to the Basic Law in relation to certain constitutional values, including federalism, are put beyond the reach of the amending power.

69.  Switzerland has adopted a third approach to federal judicial adjudication in which the Federal Tribunal can rule on cantonal laws but not on federal laws. The validity of any federal legislation is instead determined by a popular referendum if it is challenged by 5000 citizens or eight cantons (Watts 158–9). Uniquely in the world, the federal second chamber in Ethiopia has the exclusive and ultimate power to interpret the Constitution (Watts 159).

70.  As to federal and general constitutional adjudication, Belgium—and Spain—among European federations have the imperial and Napoleonic legacy of Councils of State with the mandate of upholding the constitutions and interpreting what they mean in advisory capacity on proposed legislations ex ante. From its independence in 1830 until 1970, Belgium was a unitary centralized state. A phased process of federalization in the 1970s and 1980s and the need to adjudicate conflicts of legislative jurisdictions among the federal, community, and regional governments as also national and European Union fundamental and human rights questions necessitated the establishment of, first, the cour d’arbitrage in 1984, which, by the 2007 constitutional revision, was transformed into cour constitutionnelle to reflect its current mandate as a constitutional court with judicial review powers. The Court’s mandate now includes the power to adjudicate whether statutes comport with all the fundamental rights and liberties, the principle of legality in fiscal matters, and equal treatment of all foreigners (De Visser).

71.  In practically all federal constitutions, constitutional amendment is a shared federal-provincial power with minor variations in procedures and as to the entities involved in the process. Constitutional amendments are not subject to judicial review in all constitutional texts, including India’s. However, since 1993, the Supreme Court of India has extended its power of review to constitutional amendments too. In the Kesavananda Bharati case, the court propounded a new judicial doctrine of unamendability of the ‘basic structure’ or ‘essential features’ of the Constitution in the backdrop of wanton amendments by the Emergency regime (1975–1977) to the extent of destroying its democratic character. In a series of subsequent judgements, the court has elaborated and consolidated this doctrine, which by now includes features like democratic, federal, and secular character of the Constitution, free and fair elections, and judicial independence and review itself as parts of the basic structure of the Constitution which are beyond the amending power of the Parliament and/or aggregate legislatures (SR Bommai v Union of India (1994) (India); Minerva Mills Case (India) (1980); IR Coelho v State of Tamil Nadu (2007) (India), etc).

F.  Intergovernmental Relations and Judicialization of Politics

72.  Legislative federalism, executive federalism, and judicial federalism are crucial mechanisms of intergovernmental relations in comparative federalism. Legislative federalism is featured in a significantly effective way in the federal second chamber in the US giving equal and elected representation to the federating units and equal or more weighty powers vis-a-vis the national chamber to it. Or else, legislative federalism is also promoted by providing for the composition of the federal second chamber by the direct delegations of the constituent governments and often also subjecting them to vote on the instruction of the government they represent (eg Germany, South Africa). The federal second chamber in Australia is elected, but, in order to presumably strengthen the parliamentary principle of government, it is made vulnerable to ‘double dissolution’ of both the national and the federal chambers in case of a deadlock between the two. Legislative federalism is more typical in presidential federal systems with fully fledged doctrines of separation of powers and strong state rights or in federations with deeply rooted regional and cultural identities and diversities.

73.  Executive federalism develops—informally or with varying degrees of formality—in parliamentary federations where the federal second chambers suffer some disabilities vis-a-vis the popularly elected national chamber in terms of voting the government of the day in or out of office and passage of money bills. As federal functional alternatives, ‘executive federalism’ develops in form of intergovernmental conferences of the executive heads of the two orders of government for federal-regional policy formulation, coordination, monitoring, and implementation.

74.  The first ministers’ conferences and provincial premiers’ conferences in Canada and Chief Ministers’/Ministers’/Secretaries’ conferences chaired by their Union or federal counterparts in India are the most effective forums of intergovernmental relations. Their importance is also underlined by their frequencies, especially at the ministerial and secretarial levels that are often a routine affair.

75.  Judiciary, being a federal institution par excellence, is the hallmark of judicial governance, even though a matter of last recourse. We can delineate at least four models of judiciary in comparative federal theory and practice. First, in the US model judges are appointed by the President subject to the confirmation by the Senate. They are removable jointly by the Congress and the President for improper conduct. The process is initiated in the House of Representatives and the Senate sits as a court to hear evidence to determine misconduct. The power of judicial review of congressional and executive acts was not formally contained in Art. III of the Constitution. It was invented by Chief Justice John Marshall in the Marbury v Madison Case (US) (1803) on the discursive reasoning that the Constitution is a higher law than any other law in the land. Hence other laws and executive actions must conform to the Constitution or declared ultra vires.

76.  The second model of federal judiciary is typical of classical Commonwealth federations like Canada and Australia that continue to be enchanted by parliamentary supremacy, if not sovereignty of the British parliamentary tradition which is untenable due to the federal factor in both the cases, and the Charter of Rights and Freedoms in the Canadian case since 1982. These features inevitably entail judicial review of federal and rights disputes in Canada and federal disputes in Australia. The inherent contradiction between constitutional structures and attitudes and values are resolved by judicial restraint and legalism in the behaviour of the executive-appointed judges (removable by the Parliament and the federal executive) taking a narrow view of their power of interpretation and principle of limited judicial review.

77.  The third model of federal judiciary is provided by the evolution of constitutional courts in India that began as a variant of judicial institutions in the classical Commonwealth federations, but later culminated as an increasingly activist judiciary. As already mentioned above, the Supreme Court in Kesavananda Bharati v State of Kerala (1973) (India) had conceded by a 7 to 6 majority that the amending power extended to the entire spectrum of the Constitution, but it stopped short of altering the ‘basic structure’ or ‘essential features’ of the Constitution. The same ruling was reiterated in IR Coelho v State of Tamil Nadu (2007) (India) unanimously. In doing so, the Constitutional Courts have extended their review powers beyond only legislative and executive acts to constitutional amendments as well. Even though the mode of judicial appointment and removal in the Indian Constitution is similar to that of Canada’s and Australia’s, under case laws a judicial collegium has acquired the authority of appointing the Supreme Court and High Court judges whose advice has become binding on the Union Executive (Supreme Court Advocates-on-Record Association v Union of India (1994) (India); Presidential Reference (in re) (1999) (India); and Supreme Court Advocates-on-Record Association v Union of India (2015) (India)).

78.  The fourth model is the pattern of constitutional courts in parliamentary federal democracies in Europe where the principle of parliamentary sovereignty is well-entrenched mainly due to the French Revolutionary and Napoleonic traditions of civil law (as distinguished from common law) and partly due to the influence of social democratic values. Under a civil law system, legislative law is given precedence over case law and judges are bound by civil codes as against previous judicial decisions. In common law countries judicial decisions take precedence over civil law (legislation) and judges are bound by stare decisis (previous rulings issued by higher level courts—constitutional courts). In practically all European federations constitutional court judges are mostly nominated or elected by the two chambers of the parliaments or partly appointed by the Parliament and partly by the executive. Direct or independent judicial review of legislative or executive acts is not within the competence of these courts. Judicial review that they can and do make is actually construed as a delegated power.

79.  The theoretical elaboration of this model of judicial review is made by Hans Kelsen. In an exposition of the Kelsenian courts, Sweet (79-80) refers to its four basic features: (i) a special category of judges forming the constitutional courts exercises the exclusive power of constitutional review, which the judiciary as such is prohibited to do; (ii) specifically designated authorities including the general judiciary and individuals raise questions regarding constitutionality of specific acts and constitutional judges answer them and give reasons; (iii) constitutional courts are formally separated from the general judiciary and legislature; and (iv) constitutional courts review legislations before they are enacted rather than after their enforcement.

G.  Impact of Electoral and Party System on Federalism

80.  Effect of federalism on electoral behaviour and party system have been a less frequently and systematically studied subject on a comprehensive basis in the literature than that of electoral laws and systems on the party system. A few general hypotheses are tentatively offered here. (1) Hypothetically, parliamentarism, especially in combination with the plurality or first-past-the-post system of voting, may be expected to prompt the development of a functionally conducive configuration of two or fewer parties generally. This is due to doubly reinforcing effects of plurality electoral law which unduly rewards larger parties and punishes smaller ones and of the functional need of party aggregation and party discipline to ensure stability of a party government in a parliamentary setting (Duverger 216-228); Riker 1982: 762-764). (2) This effect is likely to be weakened if a parliamentary system operates with a system of proportional representation which tends to promote fragmentation of the party system in a mirror image of socio-cultural-regional cleavages and typically gives rise to multiparty coalition governments (Duverger 245-255). (3) In a parliamentary-federal system a contradictory dialectical causation may be expected to work such that parliamentarism would tend to encourage fewer parties whereas federalism may provide a more fertile ground for multiplication of parties in federal and regional arenas of the polity. (4) In a system of presidential-federalism both the components of fully fledged horizontal separation of powers and vertical division of powers may tend to have a multiplying effect on the number of parties. However, this multiplying effect is likely to be moderated in combination with plurality electoral law and aggravated if the political system employs proportional representation.

81.  A systematic and controlled comparative study in the real world of varieties of federal systems is not available to conclusively test the cluster of hypotheses postulated above. What is possible to offer here is only case analysis of some individual federal systems or a group of them by way of limited illustrative evidence. It would be unnecessary to repeat here that the Duverger-Riker assertion of the ‘iron law’ of plurality electoral system producing a two-party system has been particularly more applicable in the limiting case of parliamentary systems, eg the UK. Through much of its history, at least by and large, Britain conforms to the above generalization, though with the trend of devolutionary federalization in the recent decades the effective number of its parties have tended to multiply nationally, especially in the regional arenas. As to the continuing functional relevance of the British parties, a recent observer, after noting some evidence of the emergence of non-partisan sources of political communication and decline of partisan forms of political participation, remarks that ‘they are skilled at adapting and surviving; more than this, they remain of central importance to the structures and processes of democracy in the country’ (Webb in Webb, Farrell and Holliday (eds) 42).

82.  True to our hypothesis above about a presidential-federal system using plurality electoral law as in the US, its apparent two-party system is nearly comprehensive encompassing all territorial units and almost entire bodies of citizens, activists, and political incumbents, but on the other hand this ‘two-party’ system is deeply fragmented ‘since it is composed of numerous and largely autonomous units, with a variety of ideological positions’ which in turn ‘yields a low degree of coherence in politics and government’ (Green in Webb, Farrell and Holliday (eds) 310–11). Nevertheless, Green (ibid. 318) concludes that ‘despite the constraints of the American constitution, the major parties could offer more coherent programmes, govern more effectively, attract more public support, and especially mobilize greater electoral participation. Indeed, it is the continuing functionality of party politics that makes further improvements both possible and desirable’.

83.  As parliamentary-federations employing plurality representation for the popular chamber (as in Canada) or a combination of constituency majority and proportional systems with the use of preferential voting (also known as the alternative vote) for election to both the houses until 1948 and proportional representation for election to the federal second chamber since 1948 (as in Australia, where constituency plurality system was followed until 1918), party systems in both the countries have broadly conformed to the hypothesis I have postulated for such systems above. Canada has developed a party system, through much of its history, that is in some ways bi-focal in the sense that its national party system has been (i) broadly bipartisan for all practical purposes, with a third-party presence in Parliament as a persistent oppositional force, coupled with (ii) a regional party system comprising provincial parties armed with governing potential as well at that level. An electoral perturbation in Canada in 1993 House of Commons elections produced two new parties besides the Liberals and Conservatives and the New Democratic Party (‘NDP’)—the Reform Party in the Western provinces and Bloc Québécois in the French Canadian province of Quebec with formidable parliamentary presence—but by the 2015 parliamentary elections the familiar pattern of two major national parties plus a third minor national party—Liberals, Conservatives, and NDP—was largely back. ‘Yet, in none of this party system change’, remarks Carty (in Webb, Farrell and Holliday 376), ‘has there been a fundamental challenge to the basic cadre form of party organization that has persisted since the nineteenth century’.

84.  Having comparable geographical vastness and regional diversity but lacking the bicultural (Anglophone/Francophone) duality of Canada, Australia conforms to the hypothesis even more closely. Shorn of complications, the two major parties in Australia are the Liberal Party and the Labour Party plus other minor parties that include the notable conservatively oriented National Party (earlier called Country Party) and the Greens, among other almost negligible parties. The Liberals and Nationals are often in coalition, giving Australia a virtual party system duopoly with the Labour Party forming the other pole. Australian party system is largely ‘nationalized’ in the sense of major parties dominating at both the federal and state levels, though minor parties do find it easier to get represented in state legislatures and in the federal Senate. There is often government-opposition discordance in the popular parliamentary and federal second chamber, but party discipline in both the chambers is very strong. Parliamentarism is given primacy over federalism in terms of reposing the parliamentary confidence in the government and control over money matters in the House of Representatives rather than in the Senate as also in providing for ‘double dissolution’ of both the houses by the government and consequential snap election under certain contingencies. McAllister (in Webb, Farrell and Holliday 406) observes:

Both major parties have experienced a weakening in the strength of their supporters’ commitment, and the mass membership of the Liberal Party, in particular, appears to be in long-term decline. … Past experience, however, suggests that unless there is a fundamental shift in the political culture that underlies the political system, the hegemony of the established parties is secure.

85.  Mandated by the Constitution itself, almost all political parties in Germany are comprehensively national in scope and coverage encompassing multi-level federal governance. Proportional representation does have a multiplying effect on the party system, yet parliamentary government, buttressed by ‘constructive vote of confidence’ (ie a no-confidence motion is impermissible without a credible proposal for an alternative government) promotes disciplined parliamentary parties and curbs their numerical multiplication. On the other hand, federalism reinforced by direct delegated representation of state governments in the federal second chamber and the pattern of federal division of powers makes the national government the preeminent legislator but leaves the implementation of laws and administration of national as well as state policies in the hands of Länder or state governments. This naturally creates a fecund arena at the Länder level for regionalization of parties and the party system. Maintenance of coalition governments was made more difficult by emergence of new alternative parties since the 1980s, and one of these—the Greens—became a party of government in 1998 in coalition with the Social Democrats. Over the decades, the effective party configuration at the national level changed from a multiparty system in the late 1940s-1950s to a ‘two-and-a-half’ party system by the end of the 1950s. Thus the same three big parties—Christian Democrats, Christian Socialists, and Social Democrats—that emerged have tided over the changes entailed by German re-unification in 1990 and largely remained the principal political players in state and federal coalition politics. Typical coalition formations have been either left-wing led by Social Democrats or right-wing led by Christian Democrats, while the political centre has been occupied by the much smaller Free Democratic Party (Scarrow 78; Gunlicks 272). The scenario is different at the Länder level, where not all major parties are evenly represented in all federating units. Synoptically, there are two patterns discernible here: a four-party system in the old Länder and three-party system in the new Länder, and some varying combinations of different parties active at the national level (Gunlicks 272).

86.  A four-fold cross-national study of the US, Canada, India, and the UK seeks to resolve the puzzle whether in federal or federalizing polities it is the party system that causes centralization or decentralization of politics or vice versa. Chhibber and Kollman (227) assert: ‘Our claim is that the changing relationships of national governments to lower levels of government themselves cause changes in the party systems, regardless of how the changes in the degree of centralization occur. Those changes in political authority could result from changes in party systems, but most often the changes in party systems were not the primary cause of changes in the policy-making system’. In Britain, Canada, and the United States they consider the two World Wars and the rise of the welfare state as the prime movers of political centralization rather than the party system per se. In India the accrual of power to the post-Independence central government is seen largely as a legacy of the national movement and World War II and geopolitical context of the new Indian state. The subsequent period of centralization during the regime of Indira Gandhi and Rajiv Gandhi is interpreted as ‘personal aggrandizement’ and ‘not party politics per se’ (Chhibber and Kollman 229).They gloss over the transformation of the one-party Congress dominance into a multi-party system of polarized pluralism with decisive balancing role of regional parties in federal coalition governments that began after the 1989 parliamentary and state legislative elections. The party system transformation in this case preceded the policy paradigm shift from Indian socialism to business liberalism and globalization as a package in 1991 by the Congress minority government led by Prime Minister PV Narasimha Rao. Here the authors seem to be taking recourse to hypothesis-saving device, unless one agrees with the thesis of ‘personalized’ politics afflicting the entire spectrum of the party system, which they do not indeed develop in the book.

H.  Conclusion

87.  The number of federations and aspiring federations by the second decade of the 21st century since the American and French Revolutions in the 18th century—the former favouring the model of federal or national state and the latter that of nation-state—has increased incredibly when 26 countries of the world today are in some sense federal and over 40 per cent of the world’s population lives under federal governments. Originally being an essentially territorial idea, federalism is now being reincarnated as a non-territorial or communitarian idea. The climate of opinion which once regarded federal states as less of a state and one conducive to secession, is fast reaching a watershed, and federalism, even with once much maligned asymmetrical federal features, is considered a device for promoting unity in diversity and warding off national breakups. It has become a standard recipe for national security, economic prosperity, and international peace, both at national and supranational regional levels. Federal or confederal constitutional engineering and judicialization of politics are the fastest growing ideas in the realms of national and global governance in contemporary times. Among major issues on frontiers of federalism research today include ways and means of federal Green Governance and managing religious fundamentalism and organized terrorism under federal dispensations effectively. The prowess and sustainability of federalism may probably be attributed to its pragmatic approach to nationalism which has survived international communism and will probably also survive the contemporary pushes and pulls to capitalist globalization and regional integration. It is probably too much to say that the recent trends of nativism and nationalism all over the world would decisively reverse the rising curves of federalization at national, regional, and global levels since the World Wars and the end of the Cold War. With contingent and contextual setbacks, federalism is likely to be a long-term continuing phenomenon. The process of federal formation at the national level is now deepening downward to subnational levels (eg the UK etc) and upwards to supranational regional levels (European Union etc) despite anxieties and setbacks, on the balance.

Select Bibliography

  • Baier, G, Courts and Federalism: Judicial, Doctrine in the United States, Australia, and Canada (University of British Columbia Press 2006).
  • Burgess, M, Comparative Federalism: Theory and Practice (Routledge 2006).
  • Burgess, M, Federalism in Africa: Essay on the Impacts of Cultural Diversity, Development and Democracy (The Federal Idea: A Quebec Think Tank on Federalism 2012).
  • Carty, RK, ‘Canada’s Nineteenth-Century Cadre Parties at the Millennium’ in Webb, P, Farrell, D, and Holliday, I, (eds), Political Parties in Advanced Industrial Democracies (OUP 2002) 345.
  • Chandio, J, ‘Crisis of Federalism in Pakistan: Issues and Challenges’ in Hegemer, CJ, and Bühler, H, (eds), Federalism in Asia and beyond: The Wildbad Kreuth Federalism Days 2012: Models, Best Practices and New Challenges (Hanns-Seidel-Stiftung 2013).
  • Chhibber, P, and Kollman, K, The Formation of National Party Systems: Federalism and Party Competition in Canada, Great Britain, India, and the United States (Princeton University Press 2004).
  • De Visser, M, Constitutional Review in Europe: A Comparative Review (OUP 2014).
  • Dolzer, R, ‘The Role of The Courts in The Preservation of Federalism: Some Remarks on the US and the German Experience’ in Singh, MP, (ed.), Comparative Constitutional Law (Eastern Book Company 2011) 69.
  • Duverger, M, Political Parties: Their Organization and the Activity in the Modern State (Metuen & Co., Ltd. 1964, 3rd Edition).
  • Elazar, DJ, Exploring Federalism (University of Alabama Press 1987).
  • Elazar, DJ, Federal Systems of the World: A Handbook of Federal, Confederal, and Autonomy Arrangements (Longman 1991).
  • Green, JC, ‘Still Functional after All These Years: Parties in the United States, 1960–2000’ in Webb, P, Farrell, D, and Holliday, I (eds) Political Parties in Advanced Industrial Democracies (OUP 2002) 310.
  • Gunlicks, A, The Länder and German Federalism (Manchester University Press 2003) 265.
  • Hamilton, A, Madison, J, and Jay, J, The Federalist, edited with an Introduction by Max Beloff, Oxford: Basil Blackwell Ltd. 1987, 2nd edition (first published in New York in 1787).
  • Härtel, I, (ed.), Handbuch Föderalismus vol. 4 Föderalismus in Europa und der Welt (Springer 2012).
  • Hanks, PJ, Australian Constitutional Law (Butterworths 1985).
  • Hogg, PW, and Wright, KW, ‘Canadian Federalism, the Privy Council and the Supreme Court: Reflections on the Debate about Canadian Federalism’ (2005) 38.2 UBC Law Review 329.
  • Hueglin, TO, ‘Canada’ in Le Roy, KT, and Saunders, C (eds) and Kincaid, J, (sr ed.), Legislative, Executive, and Judicial Governance in Federal Countries (Global Dialogue on Federalism Series vol. 3) (McGill-Queen’s University Press 2006) 101.
  • Hueglin, T, ‘Johannes Althusius: Medieval Constitutionalist or Modern Federalist?’ in Kincaid, J, (ed.), Federalism, vol. 1, Historical and Theoretical Foundation of Federalism (Sage 2011), Chapter 2.
  • Karmis, D, and Norman, W, (eds), Theories of Federalism: A Reader (Palgrave Macmillan 2005).
  • Kincaid, J, and Tarr, GA, (eds), Constitutional Origins, Structure, and Change in Federal Countries (McGill-Queen’s University Press 2005).
  • McAllister, I, ‘Political Parties in Australia: Party Stability in a Utilitarian Society’ in Webb, P, Farrell, D, and Holliday, I, Political Parties in Advanced Industrial Democracies (OUP 2002) 379.
  • New World Encyclopedia –entry on Nation-State, www://newworldencyclopedia.org (accessed 15 September 2017).
  • Oeter, S, ‘Federal Republic of Germany’ in Le Roy, K, and Saunders, C,(eds), A Global Dialogue on Federalism vol. 3 Legislative, Executive, and Judicial Governance in Federal Countries (McGill-Queen’s University Press 2006), chapter 6.
  • Oommen, TK, ‘Nation Building and Diversity’ in Watts, R, and Chattopadhyay, R, (eds), Unity in Diversity: Learning from Each Other vol. 1 Building on and Accommodating Diversities (Forum of Federations / Viva Books 2008), Theme 1.1.
  • Pylee, MV, Constitutions of the World, 2 vols, (Universal Law Publishing 2012), 4th edition.
  • Riker, WA, Federalism: Origin, Operation, Significance (Little, Brown 1964).
  • Riker, WA, ‘The Two-Party System and Duverger’s Law: An Essay on the History of Political Science’ (1982) 76.4 The American Political Science Review 735.
  • Riley, Patrick ‘The Origins of Federal Theory in International Theory Ideas’ in Kincaid, J, (ed.), Federalism vol. 1 Historical and Theoretical Foundation of Federalism (Sage 2011), Chapter 3.
  • Saunders, C, ‘Can Federalism Have a Jurisprudential Weight?’ in Courchene, TJ, Allan, JR, Leuprecht, C, and Verrelli, N, (eds), The Federal Idea: Essays in Honour of Ronald L Watts (McGill-Queens University Press 2011), 111.
  • Scarrow, SE, ‘Party Decline in the Parties State? The Changing Environment of German Politics’ in Webb, P, Farrell, D, and Holliday, I, Political Parties in Advanced Industrial Democracies (OUP 2002) 77.
  • Shah, A, (ed.), The Practice of Fiscal Federalism: Comparative Perspectives (McGill-Queen’s University Press 2007).
  • Singh, MP, and Verney, DV, ‘Challenges to India’s Centralized Parliamentary System’ (2003) 33.4 Publius: The Journal of Federalism 1.
  • Stepan, A, ‘Federalism and Democracy: Beyond the US Model’ (1999) 10.4 Journal of Democracy 19.
  • Sweet, AS, ‘Constitutional Courts and Parliamentary Democracy’ (2002) 25.1 West European Politics 77.
  • Watts, R, and Kincaid, J, ‘Introduction’ in Watts, R, and Chattopadhyay, R, (eds), Unity in Diversity: Learning from Each Other vol. 1 Building on and Accommodating Diversities (Forum of Federations / Viva Books 2008) xi.
  • Watts, R, Comparing Federal Systems (McGill-Queens University Press 2008).
  • Webb, P, ‘Political Parties in Britain: Secular Decline or Adaptive Resilience?’ in Webb, P, Farrell, D, and Holliday, I, Political Parties in Advanced Industrial Democracies (OUP 2002) 18.
  • Webb, P, Farrell, D, and Holliday, I, Political Parties in Advanced Industrial Democracies (OUP 2002).
  • Wheare, KC, Federal Government (OUP 1963).

Select Cases