By Dev Raj Dahal, Head, FES Nepal
 |
| Dev Raj Dahal |
Arthur Benz and Felix Knupling
eds. Changing Federal Constitutions: Lessons from International Comparison,
Berlin: Barbara Budrich Publishers, 2012, PP.420, Price Euro 48.
Democratization processes have
opened the prospects for constitutional amendments and federal restructuring of
the states in some European, Asian, African and Latin American countries. Out
of 196 countries of the world, however, only 28 of them have adopted federalism
as a form of governance. Constitution defines the multi-level authority of
government—federal, regional and local, guarantees their territorial integrity,
allocation of rights and resources including the recognition of minority
nationalities and linguistic and religious rights and measures for the progress
of disadvantaged groups and territory. Only those constitutions are
stable which are flexible to macro-political, economic and social changes and
represent the aspiration of all the generations of citizens.
This book under review, based on
a research project “Patterns of Federal Constitutional Reforms,” is the product
of laborious works of well-known experts -- Arthur Benz, Felix Knupling,
Angelica Schwall-Duren, John Kincaid, Dieter Freiburghaus, Gerard
Wettstein, Peter Bussjager, Anton Hofmann, Dave Sinardet, Nadia Verreli, Cesar
Colino, Jose A. Olmeda, James Mitchell, Franco Bassanini, Patrick Le Lidec,
Markus Kaltenborn, Carlos Closa, Jorg Kemmerzell, Bettina Petersohn, Christoph
Konrath, Marc-Antoine, Martin Fournier and Wolfgang Renzsch- from nine
countries. It has also incorporated seminar feedbacks from politicians and
practioners into respective case studies defending federalism for three main
reasons: closeness to citizens, division of power and contest to find the
optimal ways of conflict resolution. It analyses constitutional changes
in diverse form of federal and decentralizing countries from a comparative perspective
and dissimilar nature of their constitutional challenges. Insights are derived
from two sets of countries—fully federal (Austria, Belgium, Canada, Germany,
Switzerland and Spain), and three other countries that are in the process of
either federalization (Italy), devolution (UK) or decentralization/
Constitutional change depends on
popular consent. It is, therefore, subject to adaptation, amendment and even
replacement with the changing aspirations of citizens for the longevity of
polity. Among the eight developed federations—Australia, Austria, Belgium,
Canada, Germany, Spain, Switzerland and the US—the median age of all fifteen of
their constitutions is 33 years while one-fifth of federal countries
today display a history of constitutional instability. Habituation of
citizens in the spirit of constitutionalism provides them civic identity and
legitimacy of its durability. Therefore, constitutions last longer in democracy
(21 years) than authoritarian regimes (15 years) (P 33-34) because a diversity
of competing groups in a democratic environment averts the subversion of
constitution. Regionalization of political economy entails the sharing of
values and coordination of goals and means. In the European Union’s membership,
for example, democratic credential is necessary. This book empirically verifies
that “older constitutions are amended more than the younger ones” (P.293) while
legitimacy and durability depend on the political consensus on the protection
of minorities and opposition with the ability to reconcile the demands of
democratic age.
In Switzerland, new fiscal
equalization scheme to subsidize poor cantons, Alpine regions and urban
centers, allocation of tasks between the federal government and the cantons and
collaboration among various cantons led to successful outcome in constitutional
negotiations. The feel-good federalism of Austria represents the failure of
ambitious constitutional reforms. Landers are, therefore, looking for modern
and sustainable federalism in order to legitimize their continued existence (p.
116). In cooperative federalism of Germany, the success of two-phased
constitutional reforms can be attributed to wisdom of its leadership in forming
grand coalition of SPD-CDU in improving inter-governmental relations, more
powers to Landers, equalization mechanism, administrative competence of
federalism and moderation of conflict through compromise (P.132).
Constitutional reforms become
difficult in divided societies. In Belgian multi-national federalism, the
constitutional reforms were negotiated by the leaders of political parties as
they were the key drivers of constitutional change even though commissions and
parliament were also part of engagement in negotiations. Its state is labeled
as “partitocracy,” meaning that the government is dominated by the political
parties of majority. In Sweden, a state known for its rigid process of
constitutional change, cross-party consensus played a role. The
mega-constitutional politics of Canada introduced change through
non-constitutional route. Its identity as a federal country was determined by
two crucial agreements—Meech Lake and Charlottetown, role of Quebec’s distinct
society, linguistic duality and protection of Aboriginal peoples and
minorities. Its constitutional approval went beyond simple majority formula.
Spain’s constitutional negotiation for the autonomy of its constituent units
and various autonomous communities only exhibited limits to federal
constitutional change due to Spanish Constitutional Court’s reluctance, mixture
of issues of authority, redistribution and symbols and vulnerability to
centrifugal and dysfunctional tendencies in terms of cohesion and unity.
Therefore, its constitutional possibilities can be called just ways to “muddle
through”(p.207) without any clear legal solution. The UK under Labor Party
introduced devolution of power to resolve the problem of legitimacy rather than
addressing the problem of asymmetrical system. Cross-party consensus is the key
to resolve competing interests, adversarial pressures of real politics and
constitutional innovation. When party advantage becomes the main drivers of
constitutional change, the systematic losers are likely to emerge (P.226).
The Italian constitutional
negotiation remains largely unfinished as the problem of balancing economic
interests of various regions in time of economic crisis posed critical problem
for the reform initiatives. Similarly, French decentralization is constrained
by vertical regional and local governments especially municipalities and can be
considered a case of “constitutional blockages.” Federal system suffers from
constitutional rigidity with lower amendment rate because reforms intrinsically
shape power redistribution. Amendments largely depend on the will, power and
skill of regional actors and those of the affected. The engagements of local
actors in federal reforms sustain unequal structure while regional actors
strengthen symmetrical structures (p.325).
This book argues that
constitutional order and constitutional change require the consent of all
section of society, including losers and, therefore, inclusive institutional
structures, processes and strategies are needed for the success of
constitutional amendments either through parliamentary approval, or referendum,
even negotiation and holding national congress by reflecting the general will
of sovereign people and unbinding the living generations to the will of dead
ones. Federalism as constantly evolving system seeks to maintain unity in
diversity—allowing the scope for differences without undermining the state from
the waves of changes occurring at regional and global levels. States are
competing for foreign aid, investments, technology transfer, tax revenue and
jobs abroad. Constitutional amendments should seek to strike a balance between
flexibility and rigidity and between Jeffersonian interpretation that “law is
the codified rule of past generations, and as such its effects on the present
generation could be arbitrary and even despotic” and Madisonian that seeks to
entrench certain fundamental provisions for justice and democratic government,
independence of certain institutions and institutional arrangement so that
state stability is not drastically affected (p285-6). In multi-level federal
governance, interdependence of policies require effective coordination across
levels of governments. Where borders overlap, joint decision-making can resolve
conflict of interests. This book mentions four types of constitutional
negotiations-committees, commissions, conferences and conventions-engaging
legislatures, governments and civil society (p. 398).
Gerd Schmitt, Secretary-General
of German Bundesrat, says, “Federalism in its current form should first and
foremost serve to make the state responsive to the needs of its citizens and,
at the same time, enable it to reliably and outwardly govern all the important
issues relating to the survival and dealings of the state.” He also adds that
success of federalism rests on the commitment of citizens of the countries
concerned because it is their fundamental choice of governance. New
developments especially techno-economic globalization and regionalization have
entailed conceptual and structural adjustment of citizens and territorial
states. Constitutional politics involve “rules of the game” which require the
consent of winners and losers alike to provide legitimacy” (p.216) while public
policies are determined by majority in the parliament. Constitutional
negotiation is an ongoing process. It never ends with short-term success or
failures of reforms. In this context, this book precisely informs policy
makers, scholars, and students to learn from the constitutional reform
experiences of various federal democracies, their weaknesses and strengths. Its
practical suggestions as to how future constitutional reforms could be designed
to make federalism successful are useful for policy makers and politicians.
Courtesy: The Reporter Weekly,
August 20, 2012
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