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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Representation of Component Federal Units in Federal Systems

Jan Amilcar Schmidt

Subject(s):
Federal constitutions — Jurisdiction — Delegation of power — Delegated powers — Political philosophy of 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.  Definition

1.  Core Meaning

1.  Federalism has been defined as the combination of constitutionally guaranteed shared-rule and self-rule among a number of sub-units jointly constituting the federation (Kincaid in Griffiths (ed) 8–9). Thus, sovereignty is divided between the national (federal) level and the component federal units (often referred to as states) (Watts (2008) 8–9) (see also political philosophy of federalism).

2.  Federal systems are very often the result of compromise among competing groups. In some federations, the compromise is about different cultural interests such as language, religion, or, more generally, distinct cultural histories. In these cases, the motivation for federalization is the desire to build a strong union by accommodating regional cultural differences (Smith in Smith (ed) 6–7). Switzerland, for instance, is divided into seventeen German, four French, one Italian, and four multilingual cantons. The Belgian Constitution recognizes four linguistic regions: French, Dutch, German, and the multilingual capital region of Brussels (see also protection of linguistic minorities). In Ethiopia, a federal system was recently established in which ethnic groups are integrated in the political process through the establishment of ethnic participation rights (see also constitutional protection of the autonomy of ethnic groups; protection of ethnic minorities). Consequently, the different nations, nationalities and people of Ethiopia are represented in the federal institutions. Since Ethiopia has suffered from many ethnic clashes throughout its history, this is an attempt to address the issue of ethnic integration through political decentralization and ethnic representation (Fiseha in Turton (ed) 132).

3.  Other federations have simply retained a territorial division of government. In Germany, for instance, traditional cultural cleavages between the protestant north and catholic south are no longer relevant political factors. The fifty states of the US are culturally diverse, but at least in comparative perspective, this diversity is no longer a decisive factor in US federalism (Watts (2008) 29). The rationale for the retention of territorial federalism is both democratic and pragmatic. The assumption is that vertical separation of powers brings government closer to the people, and, therefore, the benefit of a federal system is seen in a territorially organized decentralization of government rather than in accommodating cultural diversity (Watts (2008) 30).

4.  The involvement and thus representation of the interests of the states in federal decision-making processes, eg the adoption of federal laws or the amendment of the federal constitution, is an important feature to secure shared-rule in a federal system. As it is perceived largely impractical to involve the states themselves, in most federal systems the representation of states in national decision-making processes is guaranteed through the establishment of a second chamber of parliament comprising representatives of the states.

5.  There are, however, also other models for the representation of state interests in federal systems. In federal countries with a unicameral federal parliament, such as Venezuela the state legislatures are directly involved in the national law-making process. Other federal countries reserve special seats for state representatives within a unicameral federal legislature (eg Comoros and Federated States of Micronesia). States may also be represented in other national institutions, such as the cabinet, the constitutional courts, national commissions, etc. Nevertheless, representation of states in the second chamber of a bicameral federal parliament (bicameralism) is by far the most common model of representation of states in federal systems around the world today.

2.  List of Concepts

(a)  Direct Election

6.  In some federal countries, members of the second chamber representing the states at the federal level are directly elected by the people. Electoral systems may vary, some countries using majoritarian systems (eg US, Brazil; majoritarianism), others proportional representation systems (eg Australia, Nigeria).

(b)  Indirect Election

7.  In some federal countries, members of the second chamber representing the states are elected indirectly. The electoral bodies vary. In some countries the members are elected by the state legislatures (eg India), in other countries members are selected by the state governments (eg Germany), yet other countries mix these two approaches and have some members elected by the state legislature and others selected by the state governments (eg South Africa).

(c)  Appointment

8.  In a small number of federal countries, members of the second chamber representing the states are appointed by the federal government. In Canada, for example, the governor general appoints the members of the Senate upon advice of the prime minister on a regional basis.

(d)  Equal Representation

9.  In some federal countries, states are represented equally and have the same number of members in the second chamber representing the states irrespective of their size and population density (eg US, Brazil, Nigeria, South Africa).

(e)  Weighted Representation

10.  Other federal countries provide for a weighted representation of states in the second chamber. In India, for example, the most populated state has thirty-one members and all other states have such a number of representatives as is proportional to that number, while still being entitled to at least one representative.

B.  Evolution

1.  Ancient Greek City-States Leagues

11.  Probably more confederal in character than federal, historically the ancient Greek city-states formed politically organized alliances, such as the Aetolian and Achaean League in 400–200 BC. In these leagues the constituting communities (poleis) had to develop procedures for joint decision making. Historians, thus, suggest, for example, that the political organization of the Aetolian League was based on a federal council in which the constituting poleis were represented in proportion to their relative wealth and thus contribution to the common army, while there was a popular assembly in which all citizens met twice a year (Scholten 27). Thus, the Aetolian League already provided for a mechanism to represent the poleis, while the citizenry was not represented, but directly involved in the national decision-making process.

2.  United States

12.  The modern day concept of representation of states in federal countries is, however, heavily influenced by the federalization process in the US. The founding fathers of the US, while certainly inspired by the ancient Greek political philosophy and thinking, developed their own concepts and models, which today form the basis of the idea of federalism.

13.  To overcome challenges faced under the Articles of Confederation ultimately ratified in 1781, delegates to the Federal Convention developed ideas to strengthen ties and joint decision making of thirteen still very sovereign and independent states. A central aspect of these discussions was the establishment of the Senate as the main institution to represent the interests of the states at the federal level. Madison explained the need for establishing the Senate as second chamber of Congress with the aim to outweigh and control federal interests he expected to prevail among the members of the House of Representatives (The Federalist Papers No 62 (27 February 1788)).

14.  While according to the federal constitution adopted in 1789 the House of Representatives was to represent the people as such and to be elected by the people in each state on the basis of a constituency-based majoritarian electoral system, members of the Senate originally were to be elected by the state legislatures (Art. I, s.3 of the US Constitution). Only by constitutional amendment in 1913, direct election of Senators was introduced. Apparently, incidents of deadlocks in the election of senators and corruption as well as renewed faith in the ability of the people to make their own rational democratic choices had led to the conviction to rather provide for direct political accountability of Senators to the electorate within each state (Bybee 538).

15.  Even though heavily debated, in the end it was decided to favour the smaller, less populated states and provide for equal representation of states in the Senate. Consequently, even today each state is entitled to two senators. This, however, was the result of circumstantial compromise rather than conviction (Burgess). Or, as Madison put it, not the result of theory but of ‘a spirit of amity, and … mutual deference and concession’ (The Federalist Papers No 62). Indeed, equal state representation in the Senate was perceived as conflicting with the democratic principle of one-person-one-vote. However, this was justified by considerations of vertical division of powers in a federal system, requiring a majority of representatives of the citizenry in the House of Representatives and a majority of representatives of the states in the Senate for the adoption of federal laws (plurality/majority).

16.  The states are also directly represented and involved when it comes to amendments of the Constitution. Either the two chambers of parliament by two-thirds majority in both houses or a convention established upon application of at least two or three of the state legislatures may propose amendments to the Constitution, which require a majority of three-quarters of the states to approve them (Art. V of the US Constitution). This mechanism was introduced to protect the federal arrangement of the time and indeed has made it very difficult to amend the US Constitution at a later stage.

3.  Early Western European Federations

17.  In 1848, after a civil war between its Catholic and Protestant parts, the Swiss confederation of formerly independent and sovereign states (cantons) consolidated itself by establishing the Swiss federation (even though still naming it a confederation). As a result of the strong position the cantons played throughout the existence of the Swiss confederation dating back to 1291, the mode of representation of cantons in the Council of States as second chamber of the federal parliament (Federal Assembly) was left for the individual cantonal law to determine. Almost equal representation was agreed upon, with two councillors per canton, but with the exception of six traditionally (but not officially) so called ‘half’-cantons, which for historical reasons were granted only half of the representation in the Council of States, ie one councillor (Art. 150 of the Swiss Constitution).

18.  There are a number of additional mechanisms guaranteeing the interests of the cantons at the federal level in the Swiss Constitution. For example, cantonal governments are to be informed and consulted by federal law-drafting authorities, before a federal law is presented to the Federal Assembly (Arts 45 and 55 of the Swiss Constitution). This direct inclusion of cantonal interests at an early stage of the national law-making process gave the cantons significant influence in the preparation of federal laws. Another mechanism of state representation as well as an expression of the strong tradition of direct democracy in the Swiss cantons is the optional referendum for ordinary legislation, which needs to be conducted upon request of at least 50,000 citizens or eight cantons. Once requested, it requires approval of a majority of citizens by popular vote (Arts 141 and 142 of the Swiss Constitution). Constitutional amendments and the entry into international organizations even require a mandatory referendum and a majority of citizens as well as a majority of cantons (expressed by the popular vote within the canton) to approve them (Arts 140 and 142 of the Swiss Constitution).

19.  Unlike the US and Switzerland, the German unification and federalization process in the nineteenth century did not have a very strong republican or democratic component (republicanism). After the German feudal system had disintegrated into a loose association of independent states, the German federation emerging in 1871 was a monarchical-hegemonic and imperial federation (Burgess; types of federalism). Consequently, the states (Länder) were represented in the Council of States (Bundesrat) by instructed representatives of their governments (the monarchs in the German kingdoms, or the city councils in the free city states). The Länder were represented according to their size and population, Prussia comprising 65 per cent of the territory and 62 per cent of the population dominating the Bundesrat with seventeen representatives while other Länder only had one to six representatives, depending on their relative size. However, this mode of representation of instructed representatives in fact goes back to the Perpetual Diet (Immerwährender Reichstag), which convened in Regensburg from 1663 to 1806. The Perpetual Diet was originally designed to consolidate the power of the Habsburgs in the German territories but eventually became a congress of instructed diplomats from the various independent German kingdoms (Laufer and Münch 44).

20.  After adjustments to the German federal system in the Republic of Weimar in 1919 and the dictatorship of Adolf Hitler from 1933, the reestablishment of defeated Germany following the end of World War II in 1945 resulted in the adoption of a federal system that was very much inspired by the federal history and tradition of the country. Consequently, again a Bundesrat was established to represent the sixteen Länder governments that today constitute the German federation at the federal level and their representatives still are instructed delegates (Art. 50 of the German Basic Law). However, the Länder they represent are no longer monarchical but republican regimes and the Länder governments themselves democratically legitimized.

21.  A weighted mode of representation applies. Each Land is entitled to at least three votes. Länder with more than two million inhabitants have four votes. Länder with more than six million inhabitants have five votes. Länder with more than seven million inhabitants have six votes. The representatives of one Land need to vote en bloc, ie need to speak with one predetermined voice, and votes cannot be split (Art. 51 of the German Basic Law).

22.  Länder are also represented in the Mediation Committee, which needs to be constituted upon demand of the Bundesrat or by the Bundestag or the federal government in case of laws requiring the consent of the Bundesrat (Art. 77 of the German Basic Law). In the Mediation Committee each Land is represented by one representative and the first chamber, the Bundestag is represented by sixteen members selected according to political party representation in the House (political parties or fractions in legislative body).

23.  There are also a number of additional federal coordination mechanisms established by ordinary legislation or informal agreement, where the Länder are represented, such as the regular conferences of ministers of the Länder.

24.  The medieval history of Austria is heavily intertwined with the historic developments of Germany, Austria being part of the loose associations of German kingdoms until 1867 when the Austrian-Hungarian empire was formed. Following defeat in World War I, in 1919 a republican constitution was established, introducing a federal system based on nine Länder. This constitution was abolished in 1934 when Austria started to merge with Nazi Germany, but was reintroduced after defeat in World War II in 1945.

25.  The nine Länder are represented in the Bundesrat as second chamber of the federal parliament by representatives elected by the state legislatures on the basis of proportion of political parties represented in them (Art. 35 of the Austrian Constitution). The Länder are represented on a weighted basis, the most populated Land entitled to twelve representatives and the other Länder represented by such a number of representatives as is proportional to their population in relation to the most populated Land, but at least three (Art. 34 of the Austrian Constitution).

26.  Unlike the strict separation of powers applicable in the US where legislative power and executive power largely correspond, the Swiss, German, and Austrian federal governments rely heavily on the canton or Länder governments when it comes to the implementation of federal laws. Thus, executive powers of the cantons or Länder outweigh their legislative powers as well as the executive powers of the federal government. This is why the Swiss, German, and Austrian federal systems often are described as executive federalism. In contrast to the strict vertical and horizontal separation of powers in the US federal systems, the legislative and executive powers between the federal level and the state level are intertwined (Hueglin and Fenna 136).

C.  Comparative Description

1.  Latin American Federations

27.  The US Constitution and federal system inspired many constitutional and federalization processes and the establishment of a second chamber in the federal parliament thus developed into the main model for the representation of states at the federal level.

28.  In order to accommodate former independent states, especially federations resulting out of a process of aggregation tend to provide for equal representation of states. Direct election and equal state representation was the favoured mode of representation for the federal systems evolving in Latin America in the nineteenth century (Argentina, Brazil, Mexico, and Venezuela). The Latin American federations also favoured the idea of strict separation of powers between executive and legislative powers as expressed in presidential systems similar to that in the US.

29.  In Venezuela, however, the Senate was abolished by the new Constitution of 1999 and direct involvement of state legislatures in the federal law-making process introduced (Art. 206 of the Venezuelan Constitution). Due to the fact that the state legislatures are merely consulted and thereby state interests are not effectively protected, it is, however, questionable whether Venezuela can still be qualified as a federal country today.

2.  British Commonwealth Federations

30.  The decolonization of the British Commonwealth resulted in another form of federalism, the so-called parliamentary federalism (see federalism). Canada in 1867, followed by Australia in 1900, Pakistan in 1947, India in 1950, Malaysia in 1957, and Nigeria in 1960 were all attempts to reconcile the notion of parliamentary sovereignty, involving a fusion of executive and legislative powers, with the idea of federalism. At the heart of the democratic legitimacy of government at the federal and the state level is parliament, which elects and effectively controls the executive. Majority based decision making in parliament has led to decisive federal governments in these countries, often though at the expense of minority interests (Watts (2008) 141).

31.  Due to a strict vertical division of powers with largely corresponding legislative and executive and independent revenue raising powers, Canada represents more a divided than a shared model of federalism (Cameron in Griffiths (ed) 108). The Senate as second chamber of the federal parliament and a shared-rule mechanism representing the states at the federal level is rather weak. The governor general representing the British Queen, who is still officially the head of state, appoints senators upon advice of the prime minister. The Senate is based on regional (rather than provincial) representation. Twenty-four senators are appointed from the Maritime provinces (New Brunswick, Nova Scotia, Prince Edward Island), 24 Senators from Quebec, 24 Senators from Ontario, 24 from the Western provinces (Alberta, British Colombia, Manitoba, Saskatchewan), six from New found land and Labrador, and one senator each from the federally administered territories (Art. 22 of the Canadian Constitution). Due to their perceived lack of democratic legitimacy, senators, however, tend not to vote down legislation passed by the House of Commons and the Senate has evolved into an advisory organ rather than an effective law-making body.

32.  In sharp contrast, in Australia and its equally strictly divided model of federalism, the Senate has developed into a very strong actor in the federal law-making process. However, senators are directly elected by mode of proportional representation, meaning that minority parties are strongly represented, and tend to vote according to party lines rather than in the interest of the states they represent (Saunders in Griffiths (ed) 34). The fact that no coalition building is required to approve the government (this power is reserved to the House of Representatives) means decision making in the politically rather fragmented Senate has become very difficult.

33.  States are entitled to equal representation in the Senate. Each state, originally having six senators, today, after gradual increases, has twelve senators and the federally administered Capital Territory and the Northern Territory have two senators each (Art. 7 of the Australian Constitution).

34.  The states are also represented at the federal level in the Australian federal Cabinet. Even though this is not a constitutional requirement, by convention Cabinet members need to include ministers from each state. Furthermore, states need to be consulted on the appointment of High Court judges and state interests are secured in the constitutional amendment procedures. Thus, amendments to the Constitution need to be enacted as Constitutional Amendment Bills to be passed by both chambers of the federal parliament. In the case that one chamber passes the bill and the other does not, a referendum needs to be organized. This requires a double majority of citizens and the citizens within a majority of states to approve the bill (Art. 128 of the Australian Constitution).

35.  In India the House of States, the second chamber of the federal parliament representing the states, is also elected by mode of proportional representation. However, the representatives of the states are elected by the members of their respective state legislature (Art. 80 of the Indian Constitution). Due to the significant differences in size and population, the states are represented according to their population. Hence, the most populated state, Pradesh, has 31 representatives while other states also have a number of representatives that is proportional to their population. The smallest states have at least one representative (Schedule Four). As is the case in Australia, members of the House of States tend to vote according to party lines rather than in the interest of the states. Twelve members of the House of States are even directly appointed by the president. This is just another expression of the strong influence the federal government has on the federal system. Strong intervention powers of federal institutions and considerable usage of them have indeed created a very centralized federal polity in India (Mathew in Griffiths (ed) 169). The emergence of strong regional parties at the state level, on the other hand, somehow counterbalanced these strong federal intervention powers (Watts (2008) 37).

36.  Formerly part of British India, upon independence in 1947 Pakistan adopted the 1935 Government of India Act, along with certain amendments, as its interim constitution. Following a number of military coups and the separation of Eastern Pakistan (Bangladesh) in 1971, only the 1973 Constitution, establishing Pakistan as a federation, prevailed. Accordingly, Pakistan is comprised of four states (provinces), six tribal areas, and Islamabad capital territory directly administered by the federal government. The provinces are equally represented in the Senate by 22 representatives elected by the provincial legislatures, while the representatives of the tribal areas (each entitled to eight representatives) and Islamabad capital territory (four representatives) are elected directly (Art. 59 of the Pakistani Constitution).

37.  Additionally, the provinces are represented in the Council of Common Interest, a quasi-executive body comprising of the chief executives of the federal government and the provinces charged with the duty to develop policies in relation to a list of matters of federal legislation (Art. 153 of the Pakistani Constitution). Furthermore, the provinces are represented in the National Finance Commission, which is a joint federal–provincial body advising on the distribution of federal taxes among the federal and the provincial level (Art. 160 of the Pakistani Constitution).

38.  In Malaysia, the Dewan Nagara (Senate) is composed of two senators per state elected by their respective state legislature (26). The remainder of the total 69 senators are appointed directly by the paramount ruler upon advice of the prime minister (Art. 45 of the Malaysian Constitution). Because of this system, as well as the super majorities achieved by the ruling party in successive years, the Dewan Nagara has become a source of patronage of the ruling party and failed to effectively represent the interests of the states at the federal level (Means in Griffiths (ed) 188).

39.  The main institution for representing at least the nine original Malay states is the position of the paramount ruler as the head of state of the Malaysian federation. The paramount ruler is elected by the Conference of heredity Rulers of the original nine Malay states (sultanates) forming the federation from among their members for a five-year term based on seniority (Art. 32 of the Malaysian Constitution). The Malay rulers thus became an important feature of the Malaysian federation and the paramount ruler as head of state is indeed the main defender of federalism in Malaysia.

40.  A special case of the former Commonwealth federations is Nigeria. During British rule, federalism was introduced as a tool for dealing with the cultural and religious diversity of the country. Upon independence in 1960, Nigeria inherited a federal constitution, following the British model of parliamentary sovereignty and its inherent fusion of powers. However, as a result of military coups and various constitutional reforms (Nze and King in Griffiths (ed) 188, 230–32) the 1999 Constitution very much adopts a US type of federalism, with strict horizontal and vertical division of powers between the federal institutions and the different levels of government. The 36 states are equally represented in the Senate as the second chamber of the federal parliament by three senators elected directly within each state (Arts 48 and 77 of the Nigerian Constitution).

3.  United Arab Emirates

41.  A unique federal system and mode of representation of the member states of the federation can be found in the United Arab Emirates. Upon independence from the United Kingdom in 1971, six (of the original nine) Trucial States (including Bahrain and Qatar) formed a federation not based on democratic principles but on monarchical structures. In 1972 the emirate of Ras al-Khaimah joined the federation. The sultans of today’s seven emirates form the Supreme Council of Leaders, which is the primary law- and decision-making body at the federal level (Arts 46 and 47 of the UAE Constitution). From the seven emirates, only the two most powerful and influential ones, Abu Dhabi and Dubai, have veto powers within the Supreme Council of Leaders (Art. 49 of the UAE Constitution).

42.  The Supreme Council of Leaders elects the president and the vice president from among its members (Arts 47 and 51 of the UAE Constitution). The president appoints the prime minister and the Council of Ministers. Not based on constitutional regulation but on convention, each emirate is represented by at least one member in the Council of Ministers. As the Supreme Council of Leaders is the primary law-making body, the Union National Council as the unicameral federal legislature is an advisory organ rather than a real legislature. The Union National Council is composed of representatives appointed by the heredity leaders of each emirate at their own discretion (Art. 69 of the UAE Constitution). Abu Dhabi and Dubai have eight seats, Sharjah and Ras al-Khaimah have six seats, while Ajman, Fujairah, and Umm al-Qaiwain have four seats each (Art. 68 of the UAE Constitution).

4.  Further Federalization Processes in Europe

43.  With the downfall of the Franco regime following the death of the dictator in 1975, Spain established a parliamentary monarchy by reinstating the Spanish King as ceremonial head of state and vesting executive powers in the office of a prime minister and Council of Ministers accountable to parliament. Alongside this democratization process, and in order to accommodate strong demands for regional self-rule, a federal system was adopted, which was developed gradually by adding new states (autonomous regions). The Basque country, Catalonia, and Galicia formed the first of these autonomous regions already recognized by the 1978 Constitution and 14 autonomous regions were established in different ways between 1981 and 1983 by merging former administrative provinces upon popular demand and initiative. Today, 17 autonomous regions are represented in the Spanish Senate with one representative each plus one more representative per one million inhabitants in their territory. The vast majority of senators are, however, directly elected by the people with the former administrative provinces still forming the electoral constituency (Art. 69 of the Spanish Constitution).

44.  Following regional demands mainly from the Flemish community, the Kingdom of Belgium was also federalized gradually. This federalization process came to an end with the adoption of a revised constitution in 1988. Following another constitutional reform in 1993, today the constituent units of the Belgium federation are of two types, ie communities and regions. While the Flemish, Walloon, and Brussels capital regions have their own regional assemblies and are represented in the Senate as second chamber of the federal parliament by 40 directly-elected representatives on the basis of proportional representation, another 21 senators are elected by the Community Councils of the Flemish (10), French (10), and German (one) speaking communities (Arts 67 and 68 of the Belgian Constitution).

45.  Following the collapse of the Soviet Union, the Russian federation established in 1993 is today the world’s largest and probably most complex federal system. The 1993 Constitution provides for a total of 89 constituent units of different categories. There are 22 ethnically-based republics comprising of significant non-Russian ethnic populations, which are granted the right of adopting their own constitution and laws. There are 46 regions and nine territories that are not ethnically based as they are largely inhabited by Russians and therefore were expected to have lesser demands for self-rule. There are four autonomous districts largely comprising of Russia’s indigenous populations that have a separate status within the federal system while falling administratively under the jurisdiction of the regions or territories in which they are located (rights of indigenous communities). Finally, there are three federal cities and one autonomous region.

46.  Each of the constituent units, even though differing significantly in size and population, is represented equally by two representatives in the Federation Council, the second chamber of the federal parliament. One of these representatives is elected by the legislature and the other selected by the government of their respective constituent unit (Art. 95 of the Constitution of the Russian Federation).

47.  It is important to note, however, that the different constituent units of the Russian federation are also represented at the federal level through various direct relations, ie bilateral treaties with the federal government. These non-constitutional treaties and agreements give the Russian federation a very asymmetric and complex character (Awakjan in Traut (ed) 16).

48.  Following the dismemberment of the Federal Socialist Republic of Yugoslavia and the civil war in the 1990s coming to an end with the Dayton peace agreement in 1995, one of the emerging new states was the Republic of Bosnia and Herzegovina. The federal structure of Bosnia and Herzegovina actually reflects the complexity of the ethno-territorial arrangements reached at Dayton. Accordingly, the federation consists of only two entities, the Federation of Bosnia and Herzegovina, uniting the Bosnian and Croatian parts of the country, and the Republika Srpska, comprising a majority Serb population. Both entities are represented in both chambers of the federal parliament. Two-thirds of the members of the House of Representatives, the lower House of the federal parliament, are elected by the people of the Federation of Bosnia and Herzegovina and one-third of the members are elected by the people of the Republika Srpska. Ten members of the 15 House of Peoples members, the upper house of the federal parliament, are elected by the legislature of the Federation of Bosnia and Herzegovina, electing five Croats and five Bosnians, while five members are elected by the legislature of the Republika Srpska (Art. IV of the Constitution of Bosnia and Herzegovina). The ethnic groups are also represented in the presidency, which comprises three members elected by each ethnic group (Bosnians, Croats, Serbs) who rotate the chairmanship every eight months (Art. V of the Constitution of Bosnia and Herzegovina).

5.  Federalization Attempts in Africa

49.  While many African independence constitutions (at least of those countries under British colonial rule) involved some form of devolution or federalism, these were soon abolished and African countries were characterized by rather strong centralistic tendencies. For a long time Nigeria was the only country retaining federal features. In the mid-1990s two formerly very centralistic countries, Ethiopia and South Africa, introduced new constitutions providing for federal systems as part of their democratization processes.

50.  Ethiopia, being the only country in Africa that to a large extent managed to resist colonial rule, was very much governed in the twentieth century by centralistic forces (first by the feudal system of Emperor Haile Selassie and then by the communist regime under Colonel Mengistu). The Ethiopian People’s Revolutionary Democratic Front (‘EPRDF’) overthrowing the communist regime was a multi-ethnic alliance fighting centralistic domination. One of the main agendas of this multi-ethnic alliance was to guarantee and accommodate the cultural, linguistic, and ethnic diversity of the country and the right of self-determination (Schmidt in Ndulo and Gazibo (eds) 189). Consequently, in 1995 a unique form of ethnic federalism was introduced, not only allowing ethnic groups (nations, nationalities, and peoples) to form member states of the federation, but also allowing their own form of representation in national institutions. Thus, today, the Federal Democratic Republic of Ethiopia comprises nine ethnically-based regional states.

51.  The regional states are represented in the upper house of the federal parliament (House of Federation). The House of Federation represents not only the regional states but also the various nations, nationalities, and peoples within each regional state. The regional state legislatures (Councils of the Regions) are free to determine whether they themselves elect their representatives or have them elected directly by the people. The number of representatives depends on the number of recognized nations, nationalities, and peoples within each regional state. Each group is entitled to at least one representative plus one for each one million of their population (Art. 61 of the Ethiopian Constitution). However, it is noteworthy that the House of Federation is not a law-making body as such, but rather is established as custodian of the Constitution and its exclusive right (Art. 62 of the Ethiopian Constitution) and ultimate authority (Art. 83 of the Ethiopian Constitution) is to interpret the Constitution. Additionally, the House of Federation is also involved in the distribution of revenues and allocation of subsidies from the federal government to the regional states (Art. 62 of the Ethiopian Constitution).

52.  The House of Federation and the councils of the regions are both involved in the process of amending the Constitution. Thus, constitutional amendments require initiation by either a two-thirds majority of both chambers of the federal parliament or two-thirds of the councils of the regions. Amendments to the fundamental rights and freedoms then require a two-thirds majority of both chambers of the federal parliament and approval of all councils of the regions to be adopted. Any other amendments require a two-thirds majority of a joint sitting of both chambers of the federal parliament and approval by at least two thirds of the councils of the regions (Arts 104 and 105 of the Ethiopian Constitution).

53.  A unique feature of the Ethiopian federal system is the right of secession granted to regional states, involving numerous steps including a two-thirds majority vote of the respective council of the region as well as approval by a referendum within the regional state organized by the federal government (Art. 39 of the Ethiopian Constitution). Also, nations, nationalities, and peoples within a regional state have the right to establish their own regional state following a similar procedure, ie requiring them to establish their own regional council, which then needs to approve the application for statehood by a two-thirds majority vote and requiring a referendum of the affected people organized by the federal government (Art. 47 of the Ethiopian Constitution).

54.  Democratization was also the main driving force of the South African federalization process. After decades of apartheid rule, denying the vast majority of the population basic political rights, the peace process ending with the adoption of a new Constitution in 1996 introduced nine South African states (provinces) delimitated by an expert commission in order to secure comparable economic strength and viability. The establishment of a quasi-federal system, constitutionally decentralizing executive and legislative powers, but not yet judicial powers, was part of the thirty-four constitutional principles developed by the negotiating parties to guide the constitutional drafting process in order to provide sufficient political space for different regional groups and settlement patterns.

55.  The nine provinces are equally represented at the federal level by ten representatives in the National Council of Provinces as second chamber of the federal parliament. From each province, six permanent delegates are elected by the provincial legislatures and four special delegates are sent for each individual session, one of them being the head of the provincial executive (premier) or his or her designated representative (Art. 60 of the South African Constitution). Permanent and special delegates must be members from the political parties represented in the provincial legislature (Art. 61 of the South African Constitution).

56.  The interests of the provinces are also represented when it comes to amendments of the Constitution altering the powers provided by the constitution, which require a 75 per cent majority vote in the National Assembly and approval by at least six of the nine provinces in the National Council of Provinces. Amendments to the bill of rights or having effect on the provinces require a two-thirds majority vote in the National Assembly and approval by at least six of the nine provinces in the National Council of Provinces (Art. 74 of the South African Constitution).

57.  Similarly, Kenya’s newly introduced devolved system of governance established by the Constitution of 2010 resembles very much a federal system and follows a long constitutional reform process aimed at consolidating democracy and a multi-party system. Today, the forty-seven counties are represented by one directly elected senator in the Senate as second house of the national parliament, which also comprises twenty appointed senators from the political parties to represent women (sixteen), the youth (two), and the disabled (two) (Art. 98 of the Kenyan Constitution). The counties are granted a degree of sovereignty, as constitutional amendments require a two-thirds majority of the Senate to pass (Arts 255–257 of the Kenyan Constitution).

6.  Micro-Federations

58.  There are a number of micro-federations such as the Union of Comoros, The Federated States of Micronesia, Palau, and the Federation of St Kitts and Nevis, which all provide their own specific form of representation of member states. Comoros has only a unicameral federal parliament (Assembly of the Union) comprising twenty-four directly elected representatives plus three representatives appointed by each of the four state legislatures (Local Island Councils) (Art. 20 of the Comorian Constitution). The Federated States of Micronesia have four senators from each of the four member states represented as additional members of the unicameral federal parliament (Art. 8 of the Constitution of the Federated States of Micronesia). Palau currently has a nine member Senate as per the recommendations of the so-called Re-appointment Commission as a very small second chamber of the federal parliament representing the nine member states (Art. 4 of the Palauan Constitution). In St Kitts and Nevis, the two member states are represented in the federal government, St Kitts having eight and Nevis three cabinet positions (as per convention), but not represented in the unicameral federal parliament.

7.  Federal Experiments in Post-Conflict Countries

59.  Latest trends of federalization to a large extent are characterized by using federalism in a post-conflict situation so as to unite warring parties in one national polity. Congo, Iraq, Nepal, Somalia, Sri Lanka, Sudan, and South Sudan are examples. However, as in many of these countries the conflict seems not yet to have ended or at least no political settlement has been achieved, it is certainly too early to evaluate the models of representation provided in their still very fragile constitutional regimes.

D.  Comparative Assessment

60.  As we have seen, there are a great variety of models for how states may be represented at the federal level. The most prominent model of representation certainly is the establishment of a second chamber of parliament comprising of representatives from the states. The main differences within this model are who elects/selects representatives and how the states are represented (equally or weighted according to size/population). The individual choice for one of these different approaches heavily depends on the federalization process and main stakeholders of this process at the time of its establishment. Thus, no clear pattern can be identified and the individual models can only be explained through the historical situation and circumstances at the time of adoption.

61.  However, as the numerous case studies have demonstrated, the following general implications can be identified. (1) Direct election of state representatives may enhance democratic representation of the citizenry, but tend to weaken representation of state interests and thus federal–state relations (Vileyn 6). (2) Majoritarian electoral systems tend to favour stronger federal political parties and thus more centralized political realities within the federation, while proportional representation electoral systems favour diversification and thus better representation of minority interests (Swenden in Enderlein, Wälti, and Zürn (eds) 110–11). (3) Centralized political party organization or strong federal political parties lead to more centralized political realities, while decentralized political party organization and strong political parties on the state level may enhance the weight of representation of state or minority interests (Watts (2010) 12). (4) Weighted state representation may enhance more equal democratic representation of the citizenry, while equal state representation tends to strengthen the constituent unit character of the states and thereby may provide for enhanced representation of minority interests (Vileyn 6). (5) Intertwined executive and legislative powers may enhance federal–state interrelation and cooperation, while strict vertical separation of powers and competences tends to strengthen the independent polity character of states (Watts (2008) 86–87). Theoretically, the representation of states has been criticized for conflicting with democratic principles, such as one-person-one-vote, because the often-required double majority of citizenry and state representatives favours the citizens of less populated states. However, it is noteworthy, that democratic principles go way beyond equality of representation. Often, only additional levels of representation and safeguards for minorities provide for the necessary stability and a functioning polity. Certainly, the well-established and functioning federations today have proven that their additional representation frameworks work in favour of democracy rather than undermining it.

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