Transcript DISTRIBUTION OF POWERS BETWEEN THE TWO ORDERS OF

DISTRIBUTION OF POWERS
BETWEEN THE ORDERS OF
GOVERNMENT
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The questions
• What responsibilities are best assigned to the
central government?
• What responsibilities are best assigned to
regional governments?
• What responsibilities are best shared by both
levels of government?
• How much asymmetry possible, or desirable?
• What criteria help us decide who does what?
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Organization of the session
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2)
3)
4)
5)
Designing the division of powers
Criteria for allocating powers
The allocation of powers in practice
Focus on Iraq
Breakout groups
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I. Designing the division of
powers
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Functions and Instruments
• Federal constitutions allocate
responsibility
– In functional areas or spheres of government
activity – education, environment, security,
etc.
– And they allocate tools, or instruments, that
governments can use to shape policy:
• Powers to spend and tax
• Powers to regulate
• Powers to legislate
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Powers can be allocated in
different ways
• Exclusive powers
– Only one government can act in the area
– Can be exclusively central
– Or provincial
• Concurrent powers
– Both levels can act in the area
– Usually subject to rules of ‘paramountcy’ – if there
is conflict, which prevails?
– Normally, not always, central
– Powers may be explicitly concurrent or implicitly
(overlapping)
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Legislative and Executive Powers
• Legislative and executive authority can be
combined or separated:
– Combined. The jurisdiction responsible for
passing legislation in a field is also
responsible for implementing it
– Separated. One order of government
legislates and the other order of government
implements
– Germany, South Africa, Spain: framework
legislation
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Legislative and Executive Powers
• Combined system reinforces autonomy
and legislative control over the executive
(accountability)
• Separated system allows for flexible
application of national norms and requires
intergovernmental collaboration
• But may make it more difficult for citizens
to understand who is responsible and hold
them accountable
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Many variations
• Older federal constitutions allocate power in
very general ways; newer ones allocate
powers in more detail.
• Residual powers: who is responsible when
the constitution is silent, or when new issues,
not in the constitution, arise?
– US – all residual powers to the states; but in fact
federal Trade and Commerce power and
supremacy clause go the other way.
– Canada: ‘Peace, order and good government’
suggests federal power; ‘Property and civil rights’
suggests provincial power. Courts decide.
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II. Criteria for allocating
powers
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How to decide who should do
what?
There are several criteria that federations can
use to decide on the allocation of powers
– The values and preferences of citizens and
groups
– The nature of the problems that governments
face
– The goal of maximizing citizen participation,
accountability, etc.
– The capacities of governments at different
levels
– Economic efficiency
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Responding to preferences
• What are the issues or questions that citizens
feel need country-wide, consistent, uniform
solutions (‘’national standards’’)? These should
generally be assigned to the center
– Examples: Health care, Higher Education, Social
Security…
• What are the issues where citizens in different
regions have their own distinctive values and
preferences? These should generally be
assigned to the regions
– Examples: Language policy when there are different
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languages
Responding to the problems
• Some problems that governments face are
inherently national, or cross regional.
They are normally assigned to the central
government
– Examples: air traffic control, defense, security.
These should be assigned to the center.
• Some problems are inherently local. They
are normally assigned to regional
governments
– Examples: local schools, roads, etc.
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Responding to the problems
• Some problems are inherently cross-boundary
problems.
• They have local, regional, national and even
international dimensions
• Example: Environment
• They should be concurrent, or shared
• Some federal constitutions have many shared
powers (Germany, South Africa, Spain); some
have few such areas (Canada: watertight
compartments)
• Reality is: in modern world most powers and
responsibilities are increasingly shared
• Hence importance of intergovernmental
cooperation
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Capacity: the ability to respond
• If the problem a region faces (e.g. a polluted river) is
caused by the actions of another region (spillovers),or
• If an action one region takes has negative effects on
another (externality) -• then central control is necessary. By itself no region
can solve the problem
• If redistribution (sharing across regions) is desired, this
is also a central responsibility.
• Whatever responsibilities are assigned to regions, it is
essential that they have the financial, political,
bureaucratic and financial resources to carry them out.
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III. Allocating powers in
practice
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Allocating powers in practice
What is the underlying process?
• In older federations units came together to
decide who should do what
• In newer federations the process was one of
decentralization from previously unitary regimes
- UK, Spain, Iraq – now the decision is which
powers should move to the subnational units
• Other model: the European Union:
– What powers to give up to the center
– What happens with existing federations
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Allocating powers in practice
• The need to allocate powers in a gradual
manner:
– Region formation takes time
– Not all regions may want the same level of
powers; the asymmetric models
– Not all regions may be capable to undertake
the same level of powers; financing
decentralization as a problem
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Allocating powers in practice
Common patterns in practice:
– Federal government – defence, security,
international relations, central bank and
currency, the national economy, including
regulation of inter-regional trade and
commerce, the postal service
– Regional governments – health care, social
policy, education, municipal affairs, economic
development, local services, local economic
development.
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Allocating powers in practice
• Where the regions are culturally distinct:
– Powers may be asymmetrical
– Regions may have powers to write local
constitutions, language policies, etc.
– Such powers are normally subject to limits set
by the national constitution and by the Bill of
Rights
– Are highly contested
– Asymmetry is more common and acceptable
when it is informal rather than constitutional 20
Concurrency of powers
• May be broad or narrow: modern tendency is
towards broader areas of concurrency.
– E.g. environment, public health, economic
development, social services
• May be explicit in constitution; or implied
• National vs subnational dimension in concurrency;
i.e. national health standards combined with
regional variation in delivery
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Concurrent powers: who decides?
• What criteria to decide who’s responsible? The
need for paramountcy rules; the need for
referees…
• The Residual Power: Assigns jurisdiction over
matters not listed, to either the federal or
regional government
• Usually assigned to the central government
– In US to the states; in Canada: ambiguous
– Iraq: assigned to the regions.
• Intergovernmental agreements vs judicial ruling
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(the judicialization of normal politics)
Concurrent powers
• Promote cooperation
• But; each jurisdiction must exercise it in a
limited manner
– The Aushölhung problem, or the problem of
one subnational entity “emptying” the others
field by extensive regulation
– The contradiction problems; the need for a
coordinate action in overlapping matters (i.e.
tourism/environment)
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Emergencies
• Emergency Power: Exists in some countries. A
federal power to override provincial jurisdiction
in certain circumstances. Needs to be carefully
limited
• In new federations, when regions unable to carry
out responsibilities – provisions for central
government supervision, monitoring, intervention
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Two models: Canada, Germany
Canada: “watertight compartments”
• List of federal powers, list of provincial
powers
• Few areas of legal concurrency – but
many in fact
• Each independent in own jurisdiction
Germany: integrated, shared federalism
• Most areas concurrent
• Framework legislation
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Focus on Iraq
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Distribution of Powers in the IC
• General clause; (may be expanded in the
future?)
– Article (107): The federal authority will
maintain the unity of Iraq, its
integrity,independence, sovereignty and its
democratic federal system.
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Distribution of Powers in the IC
List of powers: some exclusive federal powers
(sec 108)
1)foreign policy, international agreements, trade
policy…
2)national defence policy
3)financial and customs policy, issuing currency,…
4)Nationality,
5)Communications (mail, wavelengths…)
6)Water resources from outside Iraq
7)Census
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Distribution of Powers in the IC
Shared powers (sec 112)
1) administering and organizing customs, in coordination
with the regional government, and this will be regulated by
law.
2) organizing and distributing the main electrical power
resources.
3) drawing up environmental policy to guarantee the protection
of the environment from pollution and the preservation of its
cleanliness, in cooperation with the regions.
4) drawing up general planning and development policies.
5) drawing up general health policy, in cooperation with the
regions.
6) drawing up general education and childrearing policy, in
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consultation with the regions.
Distribution of Powers in the IC
- Few exclusive federal powers; residual powers to
regions, as well as paramountcy rule
Article (111): All that is not written in the
exclusive powers of the federal authorities is in
the authority of the regions. In other powers
shared between the federal government and the
regions, the priority will be given to the region's
law in case of dispute.
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CRC on Distribution of Powers in
the IC
CRC report: Expands federal powers, such as:
•… universities and institutes, federal power
system, federal railways, pension fund, state
liabilities, regulating work and safety standards
in the oil fields and mines, protection of
environment, air and water pollution, national
surveys such as geological, plants, animals
and forecast surveys, national and
international highways and nuclear power
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CRC on Distribution of Powers in
the IC
…and inserts emergency clauses
• “The regional government has the right to resort
to federal armed forces and security forces to
keep discipline in the region and protecting it
from aggression or natural disasters.”
• “The regional government shall take the
necessary actions to implement federal laws,
international treaties and protocols signed by
federal powers and these powers have the right
to oversee the implementation”
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UNAMI view
• Worries that the central government will be
too weak because of:
• Short list of federal powers
• Regional paramountcy
• Regional residual powers
• Insufficient attention to regional capacity
• Unclear distinction between regions and
Governorates
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Questions for the breakout
groups
Each group is assigned one important issue,
and each is asked to recommend how
responsibilities should divided between
central and regional governments; the
issues are:
• Higher Education
• Environment
• Health
• Economic development
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Assignment/2
For each issue:
• Should it be federal
• Or regional
• Or shared?
• Can it be divided, so some aspects are
federal, some shared?
• Is asymmetry acceptable or desirable in
this area?
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