Subnational Constitutional Governance

16–18 March 1999 St George’s Hotel, Rietvlei Dam Pretoria Table of Contents

Introduction 5

Welcoming Remarks 7 Dr Michael Lange, Resident Representative, Konrad Adenauer Foundation – Johannesburg, South Africa

Provinces, States, Länder and Cantons: Content and Variations Among 11 Subnational Constitutions of the World Professor Ronald Watts, Professor Emeritus of Political Studies; Fellow of the Institute of Intergovernmental Relations, Queen’s University, Ontario, Canada

The Relationship Between National and Subnational Constitutions 23 Professor Cheryl Saunders, Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne, Australia

Development of Concurrent Legislation – a New South African Perspective 37 Advocate Dirk Brand, Director: Legal Services, Western Cape Provincial , South Africa

Cooperative Government, of Powers and Subsidiarity: 45 the South African Perspective Professor Gretchen Carpenter, Professor of Constitutional Law, University of South Africa

The Other Sphere of Government: South African Provincial and 55 Local Structures in Practice Mr Mathews Phosa, Premier, Mpumalanga Province, South Africa

Relations Between Subnational and Local , Structured by 59 Subnational Constitutions Professor Jörn Ipsen, Director: Institute for Law, University of Osnabrück, Germany

3 Table of Contents

The New Judicial in the United States: Expansive State 67 Constitutional Rights Decisions Professor Robert Williams, Rutgers University, Camden, New Jersey, United States

Controlling Competency Conflicts: Subnational Constitutions, National Constitutions 77 and the Allocation of Authority Professor Alan Tarr, Director: Centre for State Constitutional Studies, Rutgers University, Camden, New Jersey, United States

Where There’s Political Will, There Might Be a Way: Subnational Constitutions and the 87 Birth of in South Africa Professor Ralph Lawrence, Professor of Government and Public ; Director: Centre for Government and Policy Studies, University of Natal, Pietermaritzburg, South Africa

Programme 95

Participants’ List 97

Seminar Reports 100

Occasional Paper Series 101

4 Introduction

The international conference on Subnational Constitutional Governance – held from 16 to 18 March 1999 at St George’s Hotel, Rietvlei Dam, Pretoria – was organised and sponsored by Rutgers Univer- sity, the Konrad Adenauer Foundation – Johannesburg office and the University of South Africa’s (Unisa’s) VerLoren van Themaat Centre for Public Law Studies. The conference was originally the brainchild of Professors Robert Williams and Alan Tarr of Rutgers University, New Jersey, United States and Dr Bertus de Villiers of the Human Sciences Research Council (HSRC), South Africa. After Dr De Villiers left the HSRC for the National Parks Board, the South African share in the venture was “inherited” by Unisa’s Department of Constitutional and Public International Law.

Some may ask why a conference on “subnational constitutional governance”, particularly in this coun- try since the South African Constitution, 1996, makes it clear that there are three spheres of government (national, provincial and local) and not tiers or levels. In the South African context, therefore, “subna- tional” may well be seen as a misnomer if it signifies subordination of regional authorities to the central authority. If we interpret subnational governance in South Africa as a reference to authorities that are elements of a greater whole, rather than as less important or subordinate, the relevance of the experi- ence of the wide range of different systems represented at the conference becomes more apparent.

It was decided not to overload the programme with formal presentations, leaving instead more room for informal discussion. This proved to be a sound choice; one that was vindicated by the high level of par- ticipation by the 60 delegates. South African participants were drawn largely from government and related areas, with a fair sprinkling of academics. The conference revealed that issues of “pure” or tech- nical constitutional law remain significant despite popular preoccupation with fundamental rights issues. It was believed that much still needs to be explored, especially in the field of local government.

Rutgers University must be thanked for its participation as organisers, sponsors and participants; in par- ticular, the enthusiasm of Professor Robert Williams, who was the driving force behind the conference and who was largely responsible for procuring the services of the foreign speakers, should be men- tioned with appreciation, as must the contribution of Professor Alan Tarr. Valued assistance was ren- dered by Thea van Doorne of the VerLoren van Themaat Centre, Moses Mdumbe of Unisa’s Department of Constitutional Law and the staff at the Konrad Adenauer Foundation office, especially Dr Michael Lange and Marlize van den Berg.

Gretchen Carpenter Professor of Constitutional Law University of South Africa

5 Welcoming Remarks

Michael Lange

INTRODUCTION which supports human rights, an independent This is the first time that the Konrad Adenauer and the rights of minorities. They also Foundation (KAF) has organised a conference assist economic development and help to with the VerLoren van Themaat Centre for implement social justice and the rule of law. Public Law Studies at the University of South KAF is closely affiliated to former German Africa (Unisa) and we are delighted to have the Chancellor Helmut Kohl’s Christian Demo- opportunity to cooperate with this institute in cratic Union Party. It proudly bears the name of introducing current constitutional issues to a the first chancellor of post-war Germany and wider audience of academics in general, and acts in the spirit of this remarkable German lawyers, advocates and law students in particu- statesman. lar. KAF is represented in many countries throughout the world and in this way actively 1. BACKGROUND TO KAF assumes a share of responsibility for shaping For those wondering what type of institution , while conveying mod- KAF is and why it has sponsored this confer- ern German political culture to the rest of the ence, allow me to sketch a brief background to world. International cooperation is an impor- the German political foundations and to outline tant part of KAF’s work and accounts for no some of the reasoning behind KAF’s involve- less than half of the general budget of some ment in South Africa. DM220 million. The five political foundations are a unique feature of today’s democratic culture in 2. KAF IN SOUTH AFRICA Germany. The move behind their creation, KAF runs a number of wide-ranging pro- which dates back to the 1960s, was the expec- grammes in South Africa. It cooperates not tation that political or civic education would only with political parties and their respective help develop and consolidate democracy in think-tanks but with reputable education and post-war Germany. research institutions, as you will note from Both in Germany and abroad, the founda- today’s event. tions seek to develop and encourage people to Since the beginning of its involvement in play an active part in the political and social South Africa, KAF has been actively involved lives of their communities. They cooperate in projects dealing with constitutional develop- with local organisations and societal groups ment at federal and provincial levels, policy which, while drawing on different value sys- aspects of local government, and the training of tems and political concepts, are committed to local government officials and councillors. promoting the development of democracy and pluralism in their respective societies. 3. SUPPORTING FEDERALISM By engaging in a variety of activities, the Germany is a federal state and KAF believes foundations assist in constructing a legal order that the new South Africa could gain much

7 Lange from Germany’s experience with this particular series of seminar reports and occasional papers. concept of governance. An important task of Many of the Johannesburg office’s publications the Foundation is therefore to enhance coopera- have tackled constitutional issues, as can be tion between the constitutional courts of these noted by the titles of some of these publica- two countries. tions: As far back as 1995, KAF hosted a confer- • Implementing Federalism in the Final ence in Bonn where the issue of constitution- Constitution of South Africa making principles was tackled by various con- • The Final Constitution of South Africa: stitutional experts from both Germany and Local Government Provisions and their South Africa. Implications South Africa – as a result of well-intentioned • A Lay Person’s Guide to the 1996 South advice – has developed a rather unique kind of African Constitution federal system that has far fewer provincial • Future Challenges for Local Government in powers than exist in Germany. In the run-up to the 21st Century South Africa’s national , we see cer- • Local–Provincial Government Relations tain political parties (such as the Inkatha • The Constitutional Basis of Local Freedom Party) asking for a more federal state Government and other parties (such as the Pan African • Constitution and Law Congress and Azapo) asking for a more cen- tralised system of government. Since the South 5. TRANSFORMATION AND ITS CHALLENGES African Constitution seems to be not yet cast in Some people argue that apartheid was South stone, there is room for more advice and debate Africa’s Berlin Wall. It was the great divider, on these contentious issues. artificially separating people who, in the final Finding the required number of qualified analysis, were bound to share the same destiny. people needed to run a federal system of gover- When apartheid fell – as part of a chain reac- nance – with its various tiers of government – is tion set off not least by events in Germany, cul- no easy task, especially considering the prevail- minating in the fall of the Berlin Wall – South ing circumstances in South Africa. Never- Africa turned away from segregation and con- theless, KAF believes that only a federal sys- flict and turned towards democratic together- tem allows different communities to develop ness and cooperation. and contribute in a meaningful way to the good South Africa has only recently set out on a of the nation. KAF has therefore been provid- most difficult path towards democracy and ing expertise from Germany in all matters con- prosperity for all its people. The transformation cerning cooperative governance and has facili- of our two countries has led – and will for some tated training for a number of different groups time to come lead – all of us through difficult of government officials. territory. People from all sectors of society find All this, I believe, clearly shows the impor- it difficult to adapt to new conditions. Pre- tance KAF gives to constitutional development viously entrenched and accepted rules have in South Africa. changed dramatically and many have complete- ly disappeared. 4. OTHER KAF ACTIVITIES IN SOUTH AFRICA South Africa is considered to be a legally Apart from these important programmes, KAF consolidated democracy in which the develop- assists provincial governments in their attempts ment of a constitutional, pluralistic state ruled to integrate their different local administrations by the new law of the land appears to be irre- and provides support for small- and medium- versible. But there are still challenges to be sized enterprises and self-help groups with spe- faced. cial emphasis in rural areas. In each case, the Foundation utilises the tools 6. BUILDING AND MAINTAINING DEMOCRACY available to it to further its objectives. This Many say that the rule of law has all but disap- includes international and national seminars peared. Some professional observers have such as this one; short-term expertise; study warned that the crime situation is moving the tours to Germany; research programmes; and country dangerously close to : if we where appropriate, publications through KAF’s define tyranny as the “public order without

8 Lange freedom” and anarchy as “freedom without CONCLUSION public order”, we are witnessing in South This conference is designed to stimulate debate Africa today the former being replaced by the on the role of concurrent legislation and on the latter. I cannot believe that South Africans have difficult question of how far a provincial consti- struggled against the tyranny of apartheid only tution might deviate from the framework set by to have to live with the anarchy of crime. the national constitution. It is also meant to I believe that by transforming white minority examine the extent to which a provincial consti- rule to black majority government, only the tution may or may not give expression to a par- foundations of a peaceful democratic society ticular view regarding the rights and responsi- have been laid. Making the new South Africa a bilities of the citizens in question. winning nation will depend: Germany’s federal approach to governance • on the willingness of those who were sets a good example in favour of provincial wronged under the old regime to put the good autonomy, especially regarding the definition of the so-called Rainbow Nation above their of rights and responsibilities in areas of particu- desire for retribution (reconciliation) lar provincial concern, such as cultural affairs, • on the acceptance that the tyranny of education and taxation. apartheid should not be replaced by the anar- I am grateful to Professor Ipsen of Osnabrück chy of crime. University for accepting our invitation to pre- Building and maintaining a strong and enduring sent a paper. His paper deals with the important democracy on these foundations will further- relations between subnational and local govern- more depend on a continuing commitment by ments in Germany. I am sure that the extent of all segments of South Africa’s diverse popula- provincial autonomy which exists in Germany tion to reconciliation and far-reaching econom- will surprise some of our South African guests. ic and social transformation. KAF is willing to I hope you find this conference enjoyable and contribute to this process. worthwhile.

9 Provinces, States, Länder and Cantons: Content and Variations Among Subnational Constitutions of the World

Ronald Watts

INTRODUCTION mass construction possible. The latter – the I wish to make it clear right from the outset that desire for distinctive identity – arises from the I am approaching this topic as a political scien- desire for smaller self-governing political units, tist rather than as a constitutional lawyer, and more responsive and accountable to the indi- therefore my focus will be not on the legal vidual citizen, and from the desire to give characteristics of subnational constitutions or expression to the primary group attachments the classification of them as legal documents, which provide the basis for a community’s but rather on the conditions giving rise to dif- sense of identity and yearning for self-determi- ferent forms of subnational governments and nation. These include linguistic and cultural the consequent relevance of the form and con- ties, religious connections, historical traditions tent of their constitutions. As the first paper of and social practices. Thus, the second half of the conference, it is perhaps not inappropriate the 20th century has seen a tension between to set the broader scene and to raise issues these two parallel forces producing contradicto- which will in subsequent papers and sessions ry trends in the direction of both integration be pursued in more depth. and disintegration.1 A feature of the contemporary world is the Given these simultaneous pressures for larger conditions that have given rise to the prolifera- political units capable of fostering economic tion of a variety of systems of multilevel gover- development and improved security, and for nance. Throughout the world contemporary smaller political units more sensitive and developments in transport, social communica- accountable to their electorates and capable of tions, technology and industrial organisation expressing local distinctiveness, it is not sur- have produced pressures not only for larger prising that multilevel political regimes such as states but also for smaller ones. Thus, there and constitutionally decentralised have developed two powerful, thoroughly unitary systems should have had such wide- interdependent, yet distinct and often actually spread appeal in the contemporary world. Such opposed political motives: the desire to build multilevel regimes provide a technique of polit- effective and dynamic forms of integrated ical organisation that permits action by a shared national and supranational organisations, and government for certain common purposes, the search for distinctive regional and local while allowing autonomous action by smaller identity. The former is generated by the goals regional or local units of government for pur- and values shared by most Western and non- poses that relate to particular regional interests Western societies today: a desire for progress, a and concerns. Consequently, nearly two billion rising standard of living, social justice and people in the world currently live in some 24 influence in the world arena. It is further countries that claim or can be considered to be fuelled by a growing awareness of worldwide federal.2 A similar number live in 15 other interdependence in an era whose advanced countries with some form of multilevel regime technology has made both mass destruction and involving constitutional decentralisation.3 In

11 Watts addition, some 20 relatively small political enti- mined the appeal of transformative ties are linked to substantially larger political and have exposed the corruption, poverty and units in a or relation- inefficiency characteristic of massive authori- ship.4 At the same time, there have grown a tarian centralisation. variety of supranational political organisations All these factors have contributed to the such as the European Union (essentially a con- heightened interest in forms of multitiered and incorporating some elements more multisphered political regimes as a method of typical of a federation), and other looser supra- organising and distributing political powers in a national entities such as the North American way that will enable the common needs of peo- Free Trade Agreement (Nafta), the Association ple to be achieved while accommodating the of South East Asian Nations (ASEAN), the diversity of their circumstances and prefer- South Asian Association for Regional Coopera- ences. Some 40 years ago Pennock suggested tion (SAARC), the Caribbean Community that citizen preferences might be maximised (or (Caricom), the Nordic Council, the North citizen frustrations reduced) by multiple levels Atlantic Treaty Organisation (Nato), and the of , each operating at a Commonwealth of Independent States (CIS). scale for performing most effectively its partic- This suggests that multilevel governmental ular functions as long as these benefits were not regimes – by reconciling the need for large offset by the costs of increased complexity.6 scale organisation with the recognition and pro- Twenty-six years ago Martin Landau argued tection of ethnic, linguistic or historically that despite the inherent complexities in multi- derived diversity through self-governing con- level regimes of government, the redundancies stituent units – have had the advantage of within federal systems provide fail-safe mecha- allowing a closer institutional approximation to nisms and multiple safety valves enabling indi- the multinational and diverse reality of the con- vidual subsystems within the multilevel regime temporary world. to respond to needs when others fail to, thus In the past decade a major factor in the pres- contributing to a longer-run basic effectiveness sure for multilevel regimes of governance has and survival of the polity.7 The continued pro- been the recognition that an increasingly global liferation of multilevel political regimes in the economy has unleashed powerful economic and past half century suggests that they were both political forces further strengthening both inter- right in pointing to the valuable role of gen- national and local pressures at the expense of uinely autonomous subnational governments the traditional nation-state. My colleague at within larger polities. This international trend to Queen’s University, Tom Courchene, has multisphered governance – to use the South labelled this trend “glocalisation”.5 Global African terminology – is reflected in the communications and consumership have been emphasis placed in the current South African awakening desires in the smallest and most Constitution upon a system of “cooperative remote villages around the world for access to government”.8 Indeed, except for a large num- the global marketplace of goods and services. ber of relatively small or island states, cen- As a result, national governments are faced tralised unitary government has increasingly increasingly with the desires of their citizens to ceased to be the norm as nation-builders have be both global consumers and local citizens. come to recognise that overcentralisation can Thus, the nation-state is proving both too small lead to anaemia at the extremities and apoplexy and too large to serve by itself the full desires at the centre. of its citizens. Furthermore, changes in technol- ogy are generating new models of industrial 1. THE VARIETY OF CONTEXTS FOR organisation with decentralised and flattened SUBNATIONAL GOVERNMENTS hierarchies and involving noncentralised inter- The form and character of subnational govern- active networks, thereby influencing the atti- ments, and hence of their constitutions, varies tudes of people in favour of more noncen- throughout the world because of the variety of tralised forms of political organisation. Another the contexts within which they have been estab- recent factor has been the collapse of the totali- lished and operate. tarian regimes in Eastern Europe and the former An important factor is the historical pattern Soviet Union: these developments have under- of their establishment. Many subnational gov-

12 Watts ernments have been created as a result of devo- tive intensity of the pressures for the autonomy lution within a pre-existing larger political of the subnational governments. The signifi- union. In such circumstances, the constitutions cance of historical, geographic, economic, lin- of the subnational governments – most usually guistic, religious, cultural or social factors, and labelled provinces rather than states – and their the extent to which these may be cumulatively jurisdiction and the major features of their con- reinforcing or cross-cutting has affected the stitutions have usually been embodied within strength of the desires to ensure the security of the constitution of the overarching union or fed- their distinct identities and interests by estab- eration. In the case of decentralised unitary sys- lishing autonomous subnational governments tems, subnational constitutions have sometimes with their own constitutions.9 Such pressures simply been set out in statutes of the national have been most intent in cases where con- government. Within such broadly devolutionary stituent governments within a union or federa- frameworks, the provinces/states have, never- tion have come to represent diversities with the theless, usually been empowered to determine force of national communities, as for example more detailed arrangements relating to their in the cases of Quebec in Canada and of the own constitutions. Examples of this pattern Basques and Catalonians in Spain. found in federations and quasi-federations An important factor affecting the character of include Belgium, Germany, India, Pakistan, subnational governments, and with important Nigeria and Spain. In the case of the South implications for their constitutions, is the African Constitution, 1996, the broad frame- degree to which the territory of the subnational work for provincial governments is set out in government coincides with the territorial con- Chapter 7, but provinces are permitted to estab- centration of historical, economic, linguistic, lish their own constitutions (section 142). religious, cultural or social interests. Where the These must, however, comply with certain stip- boundaries of subnational governments coin- ulations in the national constitution and be so cide only imperfectly with the territorial con- certified by the Constitutional Court. centration of interests, the usual result has been Where the overarching union, federation or the creation of a situation of “minorities within has been created instead by the minorities”, leading to the need to incorporate aggregation of previously separate political within the constitution of the subnational gov- entities, the scope of jurisdiction of the con- ernments safeguards for intra-provincial stituent units has usually been set out in the minorities (discussed further in section 4). Of uniting constitution and it may even include a course, it is virtually impossible to draw the ter- few minimum requirements for member state ritorial boundaries for subnational governments constitutions in the interests of compatibility, so that there are no intra-provincial minorities, but the member states have normally been left but in some unions and federations the problem to articulate their own constitutions. Such cases has been much more serious than in others. In are relatively rare among decentralised unitary some it has even led to the redrawing of the systems, but examples among aggregative fed- boundaries for some subnational units in order eral and confederal systems are the United to make them coincide more fully with social States (US), Switzerland, Australia, Malaysia, and political realities. Significant examples most of the Latin American federations (Argen- have been the reorganisation of Indian states tina, Brazil, Mexico and Venezuela patterned along linguistic lines in 1956 with further their federal constitutions closely on the adjustments in the following years and the pro- American model) and the confederal European gressive division of the constituent units of Union. It should be noted that the establishment Nigeria from the original three regions in 1960 of some unions and federations has involved to four in 1963, then 12, then 19, then 21, then both processes in a combination of both devo- 30 and now 36. lution and aggregation, but in such cases the Another factor sometimes contributing to the basic constitutions of the subnational govern- redrawing of provincial boundaries has been ments have usually been contained within the the desire to avoid excessive disparities in the federal constitutions. Significant examples are relative sizes (area and population) and wealth Canada and India. of subnational governments. Such disparities Another important factor has been the rela- can be a source of inter-regional resentment

13 Watts both in terms of relative influence in national eration the position, powers, and in some and in terms of relative administrative instances the basic structure of local govern- capacity. These were factors which led to the ments as autonomous political entities. redrawing of the boundaries of the Länder Supranational political organisations have also within Germany in the early years of the West become more significant. The multilevel situa- German Federation. The reunification of tion created by the membership of at least four Germany raised the same issues which continue federations within the European Union – to be the focus of much discussion. The issue of Austria, Belgian, Germany and Spain – has had relative balance among subnational units was a major impact upon the internal relationships also an important factor in the progressive mul- between national and subnational governments tiplication of states in Nigeria, referred to within each of these federations. This has occa- above. sioned considerable literature, for instance, in The factors referred to so far all presume that Germany.11 It has also led to the establishment the subnational governments represent territori- within the European Union of a forum for sub- al groups. That is, of course, the normal pattern. national governments – both state and local – in But is it necessarily the only one? Could non- the Committee of Regions.12 Even the much territorial subnational governments be possible. looser arrangement of Nafta linking the three Elkins has explored this possibility, focusing on federations of the US, Canada and Mexico has a range of non-territorial organisations to had implications for the roles and jurisdictions unblock thinking tied to a territorial conception of their states and provinces. of the state.10 The Belgian example in which three of the six subnational units of government 2. THE VARIETY OF SUBNATIONAL GOVERNMENT are non-territorial Communities appears to be AUTONOMY REGIMES an interesting innovation in this respect, As a result of the conditions affecting subna- although it is still too early to judge its long-run tional governments in different countries, there efficacy. Within Canada too, there have been is in fact in the world today a great variety of pressures for non-territorial units of govern- autonomy arrangements for subnational gov- ment to provide those aboriginal peoples not ernments. I use the term “autonomy arrange- concentrated on reserves with some form of ment” advisedly. The notion of “autonomy” self-government. The full possibilities and lim- relates to more than simply decentralisation, as its of non-territorial subnational governments, Elazar and Osaghae have noted.13 There are however, remain to be developed. forms of decentralisation where hierarchical In the introduction, attention was drawn to controls or direction may still leave the autono- the trend towards multitiered forms of gover- my of subnational governments relatively nance in the contemporary world. Traditionally restricted. What distinguishes autonomy from the analysis of federations has centred on rela- decentralisation is the exercise of final respon- tions between federal and provincial/state gov- sibility on a range of matters by the subnational ernments. But increasingly attention has been governments. An important context for the role drawn to the constitutional status of another of subnational governments then is not just the form of subnational government, local govern- scope of jurisdiction that is decentralised to ments, as well as to supranational forms of gov- them, but the degree of autonomy they have in ernment. Until recently, although local govern- exercising that jurisdiction. ments have in fact played a significant role in One category of political regime in which the the political dynamics of many unions and fed- autonomy of the constituent subnational gov- erations, particularly in the US and Switzer- ernments is a distinguishing feature is federa- land, the determination of the scope, powers tions. What distinguishes federations from and autonomy of local governments has usually decentralised unitary systems is that in the com- been left to the intermediate level of subnation- bination of shared rule through common institu- al governments, i.e., the provinces or states. In tions for certain specified matters and self-rule recent years, however, there have been efforts through subnational governments for other mat- in some unions and federations – notably ters, the relationship in a federation always Germany, India and South Africa – to recognise involves a degree of constitutionally guaranteed formally in the constitution of the union or fed- autonomy, or final responsibility, over some

14 Watts specified matters for each order of government. than in theoretical purity, they have on occasion In a federation, each order of government created hybrids combining different kinds of derives its authority from the constitution rather autonomy regimes. One such type is that of than another order of government. A corollary “quasi-federations” where the overall structure is that each order of government acts directly is predominantly that of a federation but the upon its citizens rather than indirectly. federal or central government is constitutionally Federations have varied enormously in the allocated some overriding unilateral powers range of powers assigned to each order of gov- akin to those in unitary systems that may be ernment, but common to them all is the consti- exercised in certain specified circumstances. tutional guarantee to the subnational govern- Significant examples are Canada (although ments of noncentralisation, i.e., autonomy, in at there unilateral central powers have fallen into least some fields of jurisdiction.14 It is notewor- disuse for more than half a century now), India, thy that some 24 countries in the world meet Pakistan and Malaysia. A different hybrid the basic criteria for classification as federa- autonomy regime is that of constitutionally tions.15 decentralised unions. In these the system is pre- Unitary systems, especially those embracing dominantly unitary, but the national constitu- subnational populations and territories, often tion contains some constitutional safeguards for involve substantial elements of administrative the jurisdiction and role of the subnational gov- and even legislative decentralisation to subna- ernments. Major examples of this type of tional governments. Significant examples autonomy regime for subnational governments include China and Indonesia. What distinguish- are the United Kingdom, Italy, Japan and Papua es them from federations, however, is a differ- New Guinea. The unique South African hybrid ent kind of autonomy regime, whereby the comes somewhere between these two types of responsibility for all matters including the hybrids. In my view, debates about whether scope of jurisdiction assigned to subnational South Africa is “federal” or not are fruitless. governments and indeed their constitutions, More important is whether this particular form rests with the central or national government. of hybrid makes possible effective governance Thus, in a unitary system the authority of the and policy-making to meet the needs of the subnational governments is derived not from South African people and whether modifica- the constitution of the union but from its central tions would help to meet these objectives. government. Yet another form of hybrid is that of confed- Yet another form of autonomy regime is rep- erations involving some elements more typical resented by where common of federations. The European Union is the institutions composed of delegates of the con- prime example of this type of hybrid as it has stituent governments are established to deal progressively incorporated such features as with shared interests, but such bodies derive weighted majority and decisions binding their powers from the constituent units. member states. Ultimate responsibility in confederations is In addition to this variety, note must also be retained by the governments of the constituent taken of some new and innovative autonomy units through the requirement of unanimous regimes. There is, for instance, that relating to agreement. Hong Kong within China involving the co-exis- Still another form of autonomy is that of fed- tence of a free with a socialist economy eracies and associated states, of which there are within one .17 currently some 20 examples. In these a smaller A further point to be made is that within each political entity is linked to a larger one, often a of these categories of autonomy regimes, the previous colonial power, but the smaller unit scope of jurisdiction and of autonomy may be retains considerable autonomy in return for a applied uniformly – i.e., symmetrically – to all minimal role in the government of the larger subnational governments, or asymmetrically as one.16 for instance is the case in a number of federa- But the variety of autonomy arrangements for tions including Canada, India, Malaysia, subnational governments does not end there. Belgium, Spain and Russia. Such asymmetry Since statesmen and nation-builders are often among constituent unit governments, also more interested in pragmatic political solutions occurs within the confederal European Union

15 Watts

(for example in relation to Denmark and the basic requirements for the constitutions of the United Kingdom and in relation to the mone- member states becoming members of the feder- tary union) and within constitutionally decen- ation. tralised unions as illustrated by the different This raises the question of the amendment relationships applying to Scotland, Wales and procedures for subnational constitutions. For Northern Ireland within the United Kingdom subnational constitutions within decentralised and of Hong Kong, the autonomous regions, unitary systems, amendments of any major fea- and the other regions within China. Depending tures almost invariably require the concurrence on the circumstances, such asymmetry may be of the national government or sometimes even permanent to deal with fundamental variations simply ordinary national government legisla- as in Canada, Belgium or Malaysia, or transi- tion. In federations or quasi-federations where tional in order to provide a period when varia- the subnational constitutions are embodied in tions in development or capacity may be the federal constitution, there has often been a reduced, as in Spain or the European Union. specific procedure for all amendments of sub- Clearly, then, there is a great variety both in national constitutions requiring the concurrence the impact of historical, geographic, economic, of the federal to amendments pro- cultural and social factors upon the political posed by a subnational legislature. For instance significance and character of subnational gov- this has been the case in India, Pakistan and ernments, and in the range of autonomy Malaysia.18 The rationale offered for such an regimes governing the role and autonomy of approach has often been that since the units of a subnational governments within multitiered federal structure are interdependent, the general systems of government. structures of subnational constitutions are of legitimate concern to the federation as a whole. 3. THE SOURCE OF AUTHORITY FOR In some other federations or unions with a SUBNATIONAL CONSTITUTIONS AND devolutionary origin, however, a special proce- THEIR AMENDMENT dure has been set down in the federal constitu- From the preceding survey outlining the variety tion for amendment of subnational constitutions of conditions and of autonomy regimes, it will which has left each province or state consider- not be surprising that the source of authority for able latitude to amend its own constitution the constitutions of subnational governments without requiring the endorsement of the has also varied where subnational governments national government except for certain basic have been created by devolution within a uni- requirements. Canada and South Africa both tary system. In these cases the subnational con- fall into this category.19 In those federations stitutions have generally either been embodied created by the aggregation, where normally the in the national constitution or have derived their constitutions of the member states have not authority from national legislation. In the case been incorporated into the federal constitution, of federations or quasi-federations created by amendment of the subnational constitutions has devolution from formerly unitary systems, all been generally left to each subnational legisla- or most of the main features of the subnational ture subject in some cases to the requirement constitutions have usually been embodied in the that they be consistent with a few basic princi- federal constitution or at least have derived ples set forth in the federal constitution. their authority from it, a pattern with which South Africa is consistent. On the other hand, 4. THE CONTENT OF SUBNATIONAL in confederations or federations created by CONSTITUTIONS aggregation of previously existing separate Whether embodied in the overall constitution of polities, the federal constitutions have delineat- the federation or union or in a separate distinct ed the distribution of jurisdiction between the document, the content of subnational constitu- federal and subnational governments, but other- tions and particularly the degree of detail has wise the constitutions of the subnational poli- varied also. Most specify in outline or in detail ties have usually derived their authority inde- the structures and procedures for the provincial pendently from the pre-existing regimes. or state legislative, , administrative Nevertheless, some such federal constitutions, and judicial bodies. Legislative and budgetary for example the US, have specified certain procedures have usually also been set out,

16 Watts although here too the degree of detail has var- ble”. This would not be unique, for under the ied. Malaysian Constitution nine of the 11 Malayan A major difference exists between those sub- states retained “constitutional rulers”.20 The national governments that have fixed-term republican movement in Australia may raise executives with a between interesting questions should the be legislature, executive and judiciary within the abolished for the federal government since the subnational government and those that have governor of a state at present is appointed by adopted parliamentary executives with the the Queen on the direct recommendation of the fusion of legislature and executive through the state premier (not the federal government as in operation of a cabinet chosen from and respon- Canada). Were some states to choose to retain sible to the legislature. In the US and Switzer- that arrangement, Australia would become a land where the principle of the separation of containing some . In con- powers has prevailed at the federal level, federations it has not been unusual to find a whether in the American presidential-congres- mixture of forms of government among the sional form or the Swiss fixed-term collegial member states. The European Union – which executive, the form of government prevailing at includes both monarchies and – is an the subnational level has in practice been in illustration of this. parallel. The Latin American federations Four further points are worth noting about the (except in periods of military rule when gover- content of subnational constitutions. First, nors have been appointed by presidents) have issues of the scope of jurisdiction of subnation- broadly followed the American model of sepa- al governments and of their interrelationship rately elected governors and state . with the national or federal government have In those federations or quasi-federations with always been defined in the national or federal parliamentary regimes at the federal level – constitution rather than in the subnational con- such as Canada, Australia, Germany, India, stitutions. The scope of legislative competence, Malaysia, Austria, Belgium and Spain – the executive jurisdiction, and of taxing and bor- subnational regimes have also been parliamen- rowing powers, as well as constitutional provi- tary in form. Where there has been a mixed sions governing intergovernmental relations, form involving a combination of presidential collaboration, and financial transfers have in and parliamentary institutions at the federal most cases been set out totally in the federal or level, as in Russia and Pakistan, this has also national constitution (or its schedules). In those been reflected in the prevailing form of subna- cases where they have been alluded to in the tional governments. The South African subnational constitution of a pre-existing polity, Constitution, 1996, establishes a mixed presi- these have been totally overridden by the feder- dential-parliamentary regime at the national al or national document. One unusual variant, level, but sections 104 to 141 lay out in consid- however, is the case of Russia. There the cur- erable detail provisions for parliamentary rent federal constitution sets out a distribution provincial governments. Nevertheless, section of powers between the federal government and 143(1)(a) empowers a provincial legislature to the governments of the subjects of the federa- enact a provincial constitution providing for tion (as the constituent units are known), but provincial legislative or executive structures the federal constitution also includes a section and procedures that differ from these as long as permitting a constituent unit to negotiate a they are not inconsistent with the national con- treaty modifying its specific jurisdiction. By the stitution and, as required by section 144, are so end of 1997, 45 of the 89 subjects of the federa- certified by the Constitutional Court. tion had already negotiated such treaties creat- An interesting sidelight to this issue is ing a highly complex asymmetry in the jurisdic- whether a republican form of federal govern- tion of these units and their relation to the fed- ment might be compatible with a monarchical eral government. form in a subnational government. The South Second, there are variations among decen- African Constitution, 1996, s. 143(1)(b) ex- tralised unitary systems, quasi-federations and pressly empowers a provincial constitution to federations in the degree to which a full duality provide for “the institution, role, authority and of civil services and has been estab- status of a traditional , where applica- lished. The US as the first modern federation

17 Watts applied the notion of duality not only to legisla- Third, there is the issue of the constitutions of tures and executives but also to public services the other level of subnational governments, and judiciaries, each level having its own. But local governments, both municipal and rural. this principle has been moderated in some other As noted in the introduction, increasing atten- federal countries. In the case of public services, tion has been given throughout the world in it has been normal in federations and quasi-fed- recent years to the importance of local govern- erations, for each government to have its own ments in meeting the needs of citizens. In most public service. India, Pakistan and Malaysia, decentralised unitary systems the scope and however, did make specific provision for joint structure of local governments have been higher public services and for commissions defined simply by national legislation. shared by federal and provincial govern- Traditionally in most federations, including ments.21 The South African Constitution, 1966, quasi-federations, the constitutional distribution has provided for the establishment of a single of powers between the federal and provincial/ Public Service Commission for the Republic to state governments has left the responsibility for advise national and provincial government the establishment and operation of local gov- (s.196).22 Section 197 of the constitution ernments with the provinces or states. In recent emphasises the integrated character of the years, however, in some federations – notably South African public service but section 197(4) Germany and India – efforts have been made to declares that “provincial governments are recognise the importance of local government responsible for the recruitment, appointment, as a full-fledged third order in the federal sys- promotion, transfer and dismissal of members tem by formally recognising in the federal con- of the public service in their administrations stitution the position and powers of local gov- within a framework of uniform public service”. ernments. While a dual judiciary would seem to be the The South African Constitution, 1996, has logical corollary of the dual polity inherent in followed this path by devoting a whole chapter the federal principle as traditionally formulated, (Chapter 7, ss. 151-164) to the structure, pow- a number of federal systems have concluded ers and functions of local governments and by that a fully dual system of courts is not neces- emphasising in Chapter 3 the integral role of sary as long as the independence of the judicia- local governments as a sphere of cooperative ry from the executives and legislatures of both government (sections 40 and 41). levels of government can be assured. Indeed, of In practice the importance of local govern- the older federations only the US has come ments as a third sphere of government has var- close to establishing a fully parallel system of ied enormously from federation to federation, courts. The central governments of Australia, being perhaps most prominent in Switzerland Canada and Switzerland have had authority to and the US and least in Australia. It is also set up their own courts but generally they have worth noting that in some federations intergov- depended upon subnational courts to administer ernmental relations directly between federal central law relying on the appellate jurisdiction and local governments have been considerable, of their supreme courts to impose some unifor- whereas in others, such as Canada, nearly all mity of the interpretation of federal laws. Most such relations have been funnelled through the of the newer federations, especially in Asia and provinces as intermediaries. Africa, short of experienced judges and influ- One of the problems affecting the relations of enced by their predecessors, have also avoided local governments with other spheres of gov- the duplication of courts. Malaysia for instance ernment is simply the sheer number of local has had an almost unitary system of courts, a governments which raises issues of how they pattern followed also under the South African should be represented in intergovernmental Constitution, 1996, Chapter 8. The courts in councils. Nevertheless, in Australia when the India and Pakistan form a single integrated sys- new Council of Australian Governments was tem with the same courts adjudicating both the established in 1992 to improve intergovernmen- federal and state/provincial laws, but unlike tal collaboration on economic development Malaysia and South Africa authority over their some representation for local govern- organisation has been divided between the cen- ments was formally included, and the European tral and state/provincial governments.23 Union has established a Committee of Regions

18 Watts which includes representatives of both subna- quent federations have set out in their constitu- tional state governments and local govern- tions more extensive lists of fundamental rights, ments. including in some cases collective group rights, Fourth, there is the issue of safeguarding protected from both federal and subnational those citizens who find themselves in a minori- government action. Examples have been ty within a subnational territorial unit. Federa- Germany (1949), India (1950), Malaysia tions best protect distinct groups and minorities (1963), Spain (1978), Canada (added in 1982), when those communities are regionally concen- and Belgium (1993). The South African trated in such a way that they may achieve self- Constitution, 1996 (Chapter 2, sections 2-39) government as a majority within a subnational clearly follows in this tradition. On the other government. Examples are the largely unilin- hand, Switzerland, Australia and Austria have gual and uniconfessional cantons of Switzer- not elaborated sets of fundamental rights in land, the predominantly French-speaking their federal constitutions. majority in Quebec within Canada, and the pre- In some instances subnational constitutions dominantly Flemish and French-speaking have also included their own set of fundamental regions and communities within Belgium. But rights to protect their own citizens and minori- rarely in practice are populations distributed ties. This has been the case, for instance, in into neat watertight territorial subnational units. some Canadian provinces, most notably In virtually all federations the existence of Quebec which has its own Charter. Indeed, some intra-unit minorities within the subnation- when the Supreme Court of Canada in its al units of government has been unavoidable. December 1988 decision struck down a section Where significant intra-provincial minorities of Quebec’s controversial language law, it did have existed, three types of solutions have been so on the grounds that these sections conflicted attempted. with the Quebec Charter of Rights rather than The first has been to redraw the boundaries with the Charter in the federal constitution. of the subnational units to coincide with the Where there are both federal and subnational location of the linguistic and ethnic groups. The charters of rights, there is always the possibility creation of the Jura as a separate canton in of a charter duel, but in such cases courts have Switzerland and the reorganisation of state normally judged that the federal charter of boundaries in India and in Nigeria referred to rights, insofar as there is conflict, must prevail. earlier provide examples. But even when What provincial charters of rights can do, how- boundaries have been redrawn it has been ever, is to supplement or extend the rights extremely difficult to avoid leaving some intra- available to their own citizens and minorities state minorities within the new units. beyond those set out in the federal constitution. A second approach has been to assign to the federal government a special role as guardian of CONCLUSION intra-provincial minorities against possible op- As this survey has indicated, there is a broad pression by a provincial majority. Examples of and extensive variety in the contextual factors, such quasi-federal provisions can be found in the nature of the autonomy regimes, the source the federal constitutions of Canada, India and of authority and character of their constitutions, Malaysia.24 and the content of the constitutions of subna- The third, and most widely used approach tional governments in multitiered or multi- has been to attempt to protect intra-provincial sphered polities in the contemporary world. minorities through a set of fundamental rights Clearly there is no single ideal model – whether embodied in the federal constitution.25 Al- federal, unitary or hybrid – applicable to all cir- though it was not the original intent of the Bill cumstances. Those designing subnational gov- of Rights added to the US Constitution by the ernments can learn a great deal from this rich first ten amendments in 1791 to apply the bill to diversity of experience, but ultimately each sys- state governments, the effect of the Fourteenth tem of subnational governments must be shap- Amendment in 1868 and subsequent judicial ed and adapted to fit the particular conditions interpretation has been to extend the protection and circumstances in which it is established. of individual rights not just from federal action There is one further point which has not been but also from state action. A number of subse- emphasised in the body of this paper but which

19 Watts is crucial to effective subnational government than mere words on paper, the public and politi- within a multi-sphered polity. That is the public cians in their practice must recognise and acceptance of the respect for constitutionalism observe them as a fundamental prescription of and the rule of law. If subnational constitutions, the structures and procedures required for mul- whether embodied in the federal constitution or titiered or multisphered democratic govern- in separate distinct documents, are to be more ment.

ENDNOTES 1) R. L. Watts, “Federalism, regionalism and State Issues (Canberra: Federalism political integration”, in David Cameron, Research Centre, The Australian National ed., Regionalism and Supranationalism University, 1993), pp. 64-123. (Montreal: Institute for Research on Public 6) J.R. Pennock, “Federal and unitary gov- Policy, 1981) pp. 3-5. ernment – disharmony and reliability”, 2) R.L. Watts, Comparing Federal Systems Behavioural Science, vol. 4(2), 1959, pp. in the 1990s (Kingston: Institute of 147-57. Intergovernmental Relations in association 7) M. Landau, “Federalism, redundancy and with McGill-Queen’s University Press, system reliability”, Publius, vol. 3(2), pp. 1996) pp. 6-14. 173-95. 3) D.J. Elazar, ed., Federal Systems of the 8) Constitution of the Republic of South World: A Handbook of Federal, Confed- Africa, 1996, Chapter 3. eral and Autonomy Arrangements 2nd ed. 9) For a fuller discussion see R. L. Watts, (Harlow, Essex: Longman Group Limited, “Federalism, regionalism and political 1994), pp. 357-9, and Watts, op. cit., p. 12. integration”, pp. 6-9. 4) Elazar, op.cit., pp.357-9, and Watts, op. 10) D. Elkins, Beyond Territory: Territory and cit., p. 11, 13. in the Twenty-First 5) T. Courchene, “Glocalisation, institutional Century (Toronto: University of Toronto evolution and the Australian federation”, Press, 1995). in B. Galligan, ed. Federalism and the 11) R. Hrbek, “German federalism and the Economy: International, National and challenge of European integration”, in C.

20 Watts

Jeffrey and P. Savigear, eds. German ments in the Commonwealth (Oxford: Federalism Today (Leicester: Leicester Clarendon Press, 1966), pp. 304-5. University Press, 1991); U. Leonardy, 19) The Constitution Act, 1982, s. 45 leaves “Regionalism with federalism: the Ger- provinces free to amend their own consti- man Constitution prepared for European tutions, subject to a few basic require- Union”, in B. de. Villiers, ed., Evaluating ments set down in s. 41 which require the Federal Systems (Cape Town: Juta & Co, assent of the federal parliament and all the 1993). provincial legislatures. On South Africa 12) See, for instance the special issue of see The Constitution of the Republic of Regional and Federal Studies: an South Africa, ss. 142, 143 which permits International Journal, vol. 6(2), 1996. provinces to establish or amend a provin- 13) Elazar, Exploring Federalism, pp. 34-38; cial constitution if its legislature does so E.E. Osaghae, “A reassessment of federal- with a two-thirds majority and as long as ism as a degree of decentralisation”, its provisions are compatible with certain Publius, vol. 20(1), 1990, pp. 83-98. requirements of the national constitution. 14) Watts, Comparing Federal Systems in the 20) Watts, New Federations, pp. 240, 265. 1990s, pp. 6-14, 65-74. 21) Watts, New Federations, pp. 230-1. 15) Ibid., pp 7-8, 10. Significant examples Examples are the “All-India” Indian among the 24 federations are the United Administrative Service (IAS) and Indian States, Switzerland, Canada, Australia and Police Service (IPS), the “All-Pakistan” Germany. Civil Service of Pakistan (CSP), and 16) Ibid., pp. 8, 11, 13; Elazar, Federal Police Service of Pakistan (PSP) and the Systems of the World, pp. xvi-xvii, 357-9. provisions in Malaysia for secondment of 17) Y. Ghai, “Autonomy with Chinese charac- administrative officers between central teristics: the case of Hong Kong”, unpub- and state governments. lished paper delivered at conference on 22) The previously existing national and “Federalism and diversity”, 23-24 January provincial public services were continued 1998, The Hague, The , spon- for a transitional period, however. sored by the International Centre for (Schedule 6 item 24(2)). Ethnic Studies, Colombo and the Institute 23) Watts, New Federations, pp. 226-228. of Social Studies, The Hague (due for 24) Watts, Comparing Federal Systems, pp. publication in 1999). 96-7. 18) R.L. Watts, New Federations: Experi- 25) Ibid., pp. 97-9.

21 The Relationship Between National and Subnational Constitutions

Cheryl Saunders

INTRODUCTION accepted that a subnational constitution should Federalism is a form of government in which comply with the national constitution, there are citizens are members of two political commu- more difficult questions about the extent and nities, each of which has a degree of final manner of national control, given the nature autonomy. While some polities are organised and purpose of federalism.2 And from the per- as federations for historical reasons, most fed- spective of subnational communities, there are eral systems serve significant contemporary even more difficult questions about the status purposes as well, actually or potentially. The of these constitutions, the source of authority unifying characteristics of federalism enable for them and the manner in which they can and joint action, common standards and other bene- should be changed. fits of a larger community in areas where these Federal-type systems take many forms, but are considered important. The devolutionary all anticipate the possibility of conflict. The character of a federal system can facilitate the usual, although not invariable rule is that cen- governance of ethnically diverse peoples, tral action, taken within the limits of the central extend democratic participation, adapt policy to constitution, is entitled to prevail. Associated regional needs and encourage innovation, with it, typically, is an assumption that disputes experimentation and competition.1 over the boundaries of power will be resolved By definition, the autonomy of subnational through courts. This was, indeed, the most units in a federation is not absolute and its compelling original rationale for judicial extent will depend, properly, on the needs of review of the constitutionality of legislation. the polity concerned. By definition also, how- Judicial review is a remedy of last resort, ever, the autonomy of the units will be greater however. It is costly and can be disruptive. It is than that of local governments in a unitary sys- a blunt instrument, in the sense that it cannot tem, to which central authority has been moderate but can only identify winners and devolved. losers. Arguments persist about its relationship Every federal system is structured by a cen- with majoritarian democracy. Its effect general- tral constitution which divides power, estab- ly has been to expand central power at the lishes central institutions, prescribes the rules expense of subnational competence. The pres- for resolving disputes and provides a procedure sures of internationalisation and globalisation for its own alteration. The characterisation of exacerbate this tendency. At the end of the 20th subnational units as political communities, century, there is some interest in mechanisms however, suggests that they must have constitu- that might avoid competency disputes in feder- tions of some kind as well, although it does not al-type systems or at least avoid their resolution necessarily prescribe the form they should take. in this way. The results should be monitored The first theme of this paper is the relationship closely. In some jurisdictions, dispute-avoid- between these two groups of constitutions ance techniques may strike a more appropriate within a federation. While it may readily be balance between unity and diversity than could

23 Saunders have been achieved through the courts. In oth- instruments of each of the states.3 The presence ers, abandoning the neutral adjudication that of such a provision in the national constitution, courts, at their best, provide ultimately, may however, has prompted the High Court of undermine the constraints on power on which a Australia to conclude that state constitutions federal-type system depends. now derive from the national constitution.4 This paper deals with two distinct, but related One practical effect of this development is questions: national control over subnational that state constitutional issues become matters constitutions and processes for resolving com- arising under the national constitution. They petency disputes. Its purpose is to identify thus fall within federal jurisdiction5 and are issues and options as a basis for comparative subject to the power of the federal Parliament study. Some examples in the paper are taken to legislate for the manner of the exercise of from a variety of declared federations. Some that jurisdiction, within the limits prescribed by are taken from systems that are not formal fed- the Constitution. The doctrine has theoretical erations but which have some federal character- consequences as well, which are taken up istics: South Africa is one of these. below. Most of the examples are taken from Austra- The second part of the section was designed lia; this is partly because Australia is the feder- to preserve the existing “manner and form” ation most familiar to me. But it is also because requirements for the alteration of state constitu- Australia presently offers an appropriate case tions. At the time of federation, the inclusion in study for the purpose. The current constitution- colonial constitutions of a special amendment al debate in Australia raises many issues for the procedure needed authorisation by Imperial division of power between national and subna- law.6 Section 106 served to rebut any presump- tional constitutions and institutions, which have tion that the authority to entrench state constitu- potential relevance for other federal-type sys- tions had been overridden and parliamentary tems, and for which a comparative approach sovereignty restored. When the final, formal may be useful. links were broken between the United Kingdom and Australian parliaments, the authority to 1. THE AUSTRALIAN FEDERATION entrench was reiterated in the Australia Acts This section provides a brief introduction to 1986.7 subnational constitutions in the Australian fed- These pre-existing principles, antiquated eration, as background for the analysis that fol- although they undoubtedly are, have prevented lows. the interpretation of section 106 as itself pro- Australia consists of six states, two self-gov- viding authority for the entrenchment of state erning mainland territories and a number of constitutions. Nor, despite some encouragement external territories. All six states were original from its wording, has the section been interpret- constituent units of the federation. Before fed- ed to prevent alteration of state constitutions by eration, they were self-governing British the national constitution alteration procedure.8 colonies, each with its own constitution, institu- As original states,9 the existing states enjoy tions of government and laws. In that sense, the certain constitutional guarantees that would not Australian states predate the federation itself. necessarily be available to new states. These Section 106 of the national constitution refers include entitlement to an equal number of sena- to state constitutions, as follows: tors and a guarantee of minimum representation “The Constitution of each State of the in the House of Representatives.10 The estab- Commonwealth shall, subject to this lished character of the original states helps to Constitution, continue as at the establish- explain one other distinguishing feature of the ment of the Commonwealth, or as at the Australian Constitution: the relatively few admission or establishment of the State, as direct controls that it imposes on state constitu- the case may be, until altered in accordance tions. In recent years, however, new controls with the Constitution of the State.” have emerged through judicial decisions as a The purpose of the first part of the section was consequence of the interrelationship between a practical one: to ensure that the constitutions national and subnational institutions. These of the former colonies survived the transition to have the potential to alter significantly the federation, as the fundamental constitutional autonomy of states in relation to their own con-

24 Saunders stitutions and the way in which state constitu- dled by the committee in this way included tions operate in practice. guarantees of rights and recognition of The position of the territories in the constitu- Aboriginal customary law. tion provides an opportunity for reflection on The textbook case became a negative exam- the nature and significance of statehood. The ple, however, in the final stages. The basis on two self-governing territories are particularly which the convention was constituted was significant in this regard, because they are simi- widely criticised as manipulative on the part of lar to the states in all but name. One of these, the government.21 The draft approved by the the Northern Territory, presently is seeking convention “followed more closely a second admission to the federation as a new state. The document, put forward by . . . a senior Minis- other, the Australian Capital Territory, is the ter”22 than it did the final draft constitution of seat of the federal government and probably is the Sessional Committee. The Northern unable, constitutionally, to become a state.11 Territory Legislative Assembly adopted the There are relatively few non-federal limits on constitution approved by the convention, with the power of governments and parliaments in minor modifications.23 At referendum, the elec- the Australian Constitution. Such as they are, torate was asked only whether it approved however, they generally apply only in the states statehood “now that the Legislative Assembly and for the benefit of the people of the states. has adopted the Constitution”. Largely in reac- Examples include the separation of federal judi- tion against what was perceived as a flawed cial power,12 the right to trial by jury,13 the pro- process, the electorate voted “no”. It is not clear tection against discrimination on the grounds of at this stage whether it will be possible to residence14 and the guarantee of freedom of revive the movement towards statehood in time interstate trade.15 This feature can be justified for the constitutional centenary in 2001, which either as an accident of history or as a reflection was the original goal. of the dominant federal purpose of the constitu- One final, recent development – with poten- tion. On either basis, it is inconsistent with cur- tial relevance for state constitutions – requires rent community attitudes.16 A slow process of mention. Australia presently is a constitutional change has been under way for some time monarchy. There are direct links between the through legislation,17 judicial interpretation,18 Monarch and her representatives nationally and and constitutional alteration.19 Its exclusion in each of the states. For most practical purpos- from the constitutional mainstream has, howev- es, a governor-general and six state governors er, been one of the arguments advanced by the carry out the functions of the Monarch in Northern Territory in favour of its admission as Australia. A proposal to break the links with a state. the Crown and, in this sense, to establish a The experience of the Northern Territory in republic is presently under active consideration seeking statehood is relevant more generally to and will be put to referendum in November this paper as well. The beginning of the modern 1999.24 It raises a number of issues that are rel- movement to statehood for the Northern Ter- evant for present purposes. ritory in the late 1980s, was almost a textbook The central question is whether an alteration example of how to draft and secure acceptance to the national constitution should establish for a constitution as an essential prerequisite for “”, in the limited sense in which a new state. A bipartisan Parliamentary Com- the term is used in Australia, as a national mittee was established to consult widely with norm. In effect, this would impose a republican the entire community of the Territory, which system on each of the states, even where a state includes the largest proportion of indigenous majority had opposed and voted against the Australians of any state or territory. On the change in a national referendum. A further basis of these consultations, the committee pre- complication is that, even if republicanism were pared a draft constitution.20 It dealt with issues established in this way, consequential changes that would be likely to prove most controver- to state constitutions would still be necessary to sial, by developing several options for consider- alter monarchical forms and to create republi- ation by a Northern Territory Constitutional can institutions. In some states, the relevant Convention, before the final constitution was parts of the state constitution can be changed put to a territory-wide referendum. Issues han- only by referendum.25 It is easy to foresee cir-

25 Saunders cumstances in which a state community might altered through the national constitution by a be unwilling to make such changes. In that national majority. To the extent that subnational case, the only solution would be to prescribe constitutions are controlled by the national con- interim state constitutional structures in the stitution, change is likely to be effected by the national constitution. This would be a major national constitution alteration procedure. new departure in Australia and, potentially, Consideration of the relevance of these con- extremely divisive. These considerations have stitutions to subnational communities, however, influenced the decision to draft the republican suggests that it may be appropriate to accom- model in a way that leaves the decision about modate their views in some way, as well. One the links with the Crown at state level to the option would be to require subnational consent, state concerned, and does not interfere directly appropriately conveyed, to changes that affect with state constitutions at all.26 subnational constitutions, generally or in signif- icant ways. 2. NATIONAL AND SUBNATIONAL Little attention has been given to this consid- CONSTITUTIONS eration in connection with the Australian 2.1 The form of subnational constitutions Constitution. The constitution alteration formu- All subnational units must have a constitution la under section 128 of the Australian Constitu- of some kind, formal or informal. Not all are tion requires the consent of particular subna- separate from the national constitution, as the tional units for certain alterations. Those speci- examples of Canada and India show. Sub- fied are changes to the proportional representa- national units are more likely to have separate tion of the original states in the Australian constitutions where they existed as units with Parliament or changes to state geographical their own constitutions before federation, as in boundaries. There is no express requirement of the United States (US) and Australia. Even in state consent to changes that would affect the these cases, however, the national constitution constitutions of the states themselves. The may refer to subnational constitutions and may preservation of state constitutions “until altered be interpreted as authorising them, as in in accordance with the Constitution of the Australia. State” by section 106, might have provided Authorisation of subnational constitutions by encouragement to the development of a judicial the national constitution raises an important doctrine which protected state constitutions question of principle about the link between a from alteration by national majorities. So far, subnational constitution and the community it however, this has not occurred. serves. It may readily be accepted that national The issue is a live one in Australia, in con- constitutions are based on popular sovereignty. nection with the move to a republic. The consti- The corresponding assumption about subna- tution alteration procedure prescribed in section tional constitutions is complicated by their rela- 128 of the Australian Constitution requires pro- tionship with the national constitution. No sub- posals for change to be passed by the Common- national constitution is completely uncon- wealth Parliament and approved by referendum trolled. To a degree that depends on the extent with national majorities and majorities in at of control, subnational constitutions therefore least four states. Construed literally, it would draw on the authority of the people organised allow a republican referendum to be carried by nationally, as well as the authority of the people majorities in four states overriding the views of of the subnational community. On one view, state majorities in the other two.27 This would this is merely another manifestation of the com- be so, even if the proposed alteration were to promise inherent in any federal-type system. require the states as well as the Common- Nevertheless, the resulting ambiguity under- wealth, to sever links with the Crown. What- mines the significance of state constitutions and ever the legal position, there are political prob- makes it less likely that they will develop as a lems with such a course of action. These are focal point of local democracy. avoided in the present proposal, now released This largely theoretical question has impor- in the form of a draft bill to amend the national tant practical ramifications for the question constitution,28 which would not affect state foreshadowed earlier: whether and in what cir- constitutions. Rather, the proposal assumes that cumstances subnational constitutions can be a republic will be achieved at both Common-

26 Saunders wealth and state levels by cooperative and coor- The issue was raised before the High Court in dinated action between the various govern- 1989 in the context of the effectiveness of a ments. Commonwealth law passed under section The decision to confine the referendum on 51(38) of the Constitution, with the concur- the republic to the national sphere of govern- rence of all state parliaments, to expand the ment raises the possibility that some states may state competence to make laws for areas below retain their links with the Crown after Australia the low water mark. In effect, the law altered becomes a republic, at least in the short term. the constitutions of the states, by extending The Constitution Alteration Bill would facili- their jurisdiction off-shore. The High Court tate this, by expressly authorising states to held that in these circumstances, the exercise of retain their links with the Crown and providing Commonwealth power under section 51 pre- that, in such a case, the monarch of the state vailed.32 In part, at least, the decision was justi- would be the person who would have been the fied by the cooperative nature of the exercise. monarch of Australia had the republican refer- Whether the same logic would apply in less endum not been passed.29 Such an outcome cooperative circumstances, if a state constitu- would be widely deplored. Nevertheless, stag- tion were overridden by a different power, gered change of this kind has some historical remains unclear. The principle of the priority of precedent in Australia, where the sovereignty of Commonwealth law having been established in the British Parliament vis-à-vis the Common- relation to one power, however, it is unlikely to wealth Parliament formally was repudiated30 be altered for others, cooperation notwithstand- fifty years before the same step was taken in ing. relation to the parliaments of the states.31 The Whatever the autonomy or dependence of possibility of a partial republic illustrates the existing subnational units, national control is extent to which Australian constitutions are free likely to be exercised at the point where a new of national constitutional control. More signifi- unit is admitted to the federation. National cantly, for present purposes it is evidence of the power to admit a new unit usually implies a existence of a culture that resists such control, power of decision in relation to its constitution. even on a point of major principle. Thus, for example, section 121 of the Austra- lian Constitution authorises the Commonwealth 2.2 Procedures for control Parliament to admit or establish new states and The usual rule is that a national constitution is “upon such admission or establishment, make paramount and that a subnational constitution or impose such terms and conditions . . . as it must be consistent with it. The significance of thinks fit”. To similar effect, Article IV section such a rule depends on what the national consti- 3 of the US Constitution provides that: “New tution says about subnational constitutions. States may be admitted by the Congress into In a hierarchy of norms, a valid national law this Union . . .” usually is paramount over subnational constitu- The meaning and effect of the Australian pro- tions as well. The federal division of powers, vision may become an issue in relation to state- however, may mean that the capacity of the hood for the Northern Territory. The effective centre to makes laws affecting a subnational rejection of the previous draft constitution by constitution is limited. Nevertheless, the possi- the people of the territory themselves has bility that an ordinary national law may over- already been noted. One of the major issues in ride a subnational constitution raises even more any attempt to revive the statehood movement starkly the question about how subnational con- will be the adequacy of the protection which stitutions can or should be changed. In Austra- the new state constitution offers to the indige- lia, the question is complicated by the fact that nous people of the Northern Territory, whose both the list of federal concurrent powers in vote was instrumental in the rejection of the section 51 and section 106 – to which reference earlier draft. Even if a new draft is accepted in already has been made – are expressed to be the Territory, it is likely to come under close “subject to this Constitution”. In the case of a scrutiny in the Commonwealth Parliament, conflict between an exercise of power under directly or indirectly, as the Parliament consid- section 51 and section 106, one or other of ers legislation for the admission of the Territory these sections must have priority. to statehood. The stance of the Australian

27 Saunders

Senate, typically constituted by a minority of Similarly, state constitutions may not protect government members, is likely to be particular- local industries by discriminating against trade ly important. with other states, directly or in substance.39 These points concern the opportunity for In addition to express restraints of this kind, a national control of subnational constitutions. national constitution may inadvertently affect There is a further question, however, about the subnational constitutions through the interrela- mechanisms through which a national constitu- tionship of central and subnational institutions. tion actually controls subnational constitutions. Some different examples are suggested by A range of models is suggested by existing fed- Australian experience. eral-type systems. The first concerns the position of state gover- Most obviously, a national constitution may nors. A governor represents the Queen in each expressly control subnational constitutions. state and, in effect, fills the position of non- Prescribing all or part of the subnational consti- executive Head of State typically found in par- tutions may do this. In theory at least, a national liamentary systems derived from the West- constitution may make full and final provision minster model. State governors are, however, for subnational constitutions. Alternatively, a also given functions under the Australian national constitution may provide the frame- Constitution. Most of these concern the work for subnational constitutions until individ- Australian Senate, originally conceived as a ual subnational units provide otherwise, as in States’ House. Thus, for example, state gover- South Africa.33 In this case, the national consti- nors issue writs for Senate elections40 and play tution is likely to provide some mechanism for a part in filling casual vacancies in the Senate controlling the content of new subnational con- representation of their state.41 In practice, also, stitutions. In South Africa, this is achieved state governors have acted as deputies to the through the certification procedure of the governor-general, thus acting, in effect, as Constitutional Court.34 national Head of State. Under the proposed Even in a system that assumes the separate model for a republic, the constitution would be existence of subnational constitutions, the altered to formally enshrine this practice in the national constitution may prescribe particular text of the constitution.42 The acting President principles with which subnational constitutions of Australia would be drawn from the ranks of must comply. Thus, for example, the US state governors from time to time. Constitution requires the US to “guarantee to In fact, the constitution interprets the term each State . . . a Republican Form of Gov- “Governor” broadly, to include any “Chief ernment”.35 Executive Officer or Administrator of the The South African Constitution requires sub- Government of the State”.43 The breadth of the national constitutions to comply with basic con- definition lessens the implications of these stitutional values and the principles of coopera- national constitutional references to state gover- tive government.36 The German Constitution nors. These same sections, however, refer to requires the constitutions of the Länder to “con- other state institutions as well. State parlia- form to the principles of republican, democrat- ments also play a role in filling casual Senate ic, and social government based on the rule of vacancies.44 And in exercising some powers, law”.37 governors specifically are required to act on the There are no such positive specifications for advice of the “Executive Council” of the subnational constitutions in the Australian state.45 The Executive Council is a formal advi- Constitution. Like many federal-type constitu- sory body, the continuing usefulness of which tions, however, the Australian Constitution pre- is open to question. No state is likely to be scribes some rules which subnational constitu- tempted to abolish its parliament. If these sec- tions may not transgress. In Australia, these tions were interpreted to entrench state execu- relate to the nature of the union that the consti- tive councils, however, they might seriously tution was designed to create and are largely constrain future state attempts at institutional economic in character. Thus, for example, it reform. would not be possible for an Australian state A similar example concerns state courts. The constitution to significantly favour residents of Australian Constitution enables the Australian that state over other Australian nationals.38 Parliament to confer federal jurisdiction on

28 Saunders state courts.46 It also provides for an appeal to ments of the states.52 They have weakened both the High Court, at the apex of the Australian the reality and the perception of state executive judicature, from State Supreme Courts.47 At the responsibility to state parliaments and thus the very least, these sections require the states to institution of state parliaments themselves. retain their Supreme Courts. More importantly, the High Court recently has held that these sec- 2.3 The substance of control tions also require states to maintain the integrity One final issue concerns the matters in relation of their court systems, to the point where there to which national constitutions typically control is no “incompatibility” between a state court subnational constitutions. Inevitably, the and the exercise of federal jurisdiction.48 answer depends in part on whether subnational Applying this principle, a state law that con- constitutions exist as separate instruments ferred jurisdiction on the Supreme Court to designed and implemented by subnational poli- make an order detaining a person in preventa- ties themselves. Inevitably also, the subject tive custody was held invalid. The power of matter of national constitutional control varies detention was incompatible with the exercise of between federations, depending on different federal judicial power, where the detainee was views of the areas in which national norms are not adjudged to have broken any law. The important. notion that references to state courts have quali- Nevertheless, at least two common themes tative implications of this kind could be even can be identified across most federal systems. more significant if extended, by analogy, to the First, it is usual for national constitutions to references to state parliaments. prescribe the essential characteristics of subna- The final example is of a different kind. In a tional governments, including the basic civil series of cases in the early 1990s, the High and political rights which all citizens, consid- Court found an implied protection for freedom ered nationally, are entitled to enjoy. Australia of political speech in those parts of the Austra- is an exception in this regard, largely because lian Constitution which provide for the estab- its constitutional culture so far has been resis- lishment of the national Parliament.49 The logic tant to the protection of particular rights. The of this conclusion was that a system of repre- most important principles of economic union sentative democracy, evidenced by constitu- also are likely to apply nationally. Typically, tional requirements for an elected Parliament, these include freedom of movement of people, depends on a degree of freedom of communica- goods, services and capital and to that extent tion between voters and their representatives limit subnational freedom of action. In direct and among voters themselves. Understood in contrast to the position in relation to rights, eco- this way, the doctrine does not automatically nomic union is a central feature of the Austra- provide protection for freedom of speech from lian Constitution, reflecting the preoccupations inroads by state parliaments. In practice, how- of the colonies at the time the constitution was ever, the political systems of the Common- framed.53 wealth and the states are so closely interwoven As a generalisation, the broader the substance that it is impossible to quarantine free speech in of national control the greater the homogenis- the Commonwealth sphere in that way. The ing effect on the federation as a whole. This Court has therefore accepted that the Constitu- effect might be lessened if national constitu- tion places limits on the powers of state parlia- tions were construed merely so as to establish a ments as well, although the extent of these lim- basic rule or “floor” allowing subnational units its remains unclear. to prescribe more rigorous standards, as is the There are other ways in which national con- case with the protection of individual rights in stitutions and actions taken pursuant to them the US. The significance of this approach has may affect the operation of state constitutions. been demonstrated by the recent history of the Examples in Australia include the procedures interpretation of human rights standards in the for making grants to the states on condition50 US.54 The approach is open for adoption in any and for coordinating government borrowing.51 federal system unless the standards laid down Both offer procedures by which state govern- in the national constitution are expressed as ments may obtain access to funds that have not absolutes. Interpretation of subnational consti- been raised with the authority of the parlia- tutions to prescribe standards higher than the

29 Saunders national norm is likely to be facilitated by a stitutional recognition of indigenous customary separation of national and subnational court law. If and when a new state for the Northern systems, as in the US. Territory finally is established, its constitution National control will be more difficult to is likely to accord some status to indigenous effect if subnational units pre-dated federation. customary law. The argument for such mea- The virtual absence of national constitutional sures is strong in the Territory, because of the control of state constitutions has made relative size of its indigenous population. Other Australia a classic and extreme example. In states, however, also have indigenous commu- consequence, Australia offers a useful case nities. A successful resolution of this issue in study of a federation in which subnational units the Northern Territory undoubtedly would have have been left free to experiment with different an influence on state constitutions elsewhere. constitutional forms. The generally positive effects of experimen- The potential of this freedom has not been tation in these different areas may inadvertently realised. The explanation lies in part in their have been precluded by inconsistent national origins, as colonial constitutions, authorised by standards under a more controlling national the Imperial Parliament and cast from the same constitutional regime. This advantage of the mould. From the beginning, therefore, the Australian approach must be weighed against Australian state constitutions were very similar the occasions where state constitutional autono- to each other. Some examples of experimenta- my has enabled experimentation of a less tion may be given, however, drawn from more admirable kind in relation, for example, to state recent times. electoral boundaries and civil rights standards. Importantly, in the Australian context, state The trade-off is a familiar one. Each federation constitutions have pioneered the use of fixed- is likely to make different choices about stan- term55 and partly fixed-term56 parliaments. The dards that should apply nationally and those development of the compromise of a partly that may be set at a subnational level. fixed-term – leaving governments with one year within which an may be fixed to 3. PROCEDURES FOR RESOLVING COMPETENCY suit their convenience – has the potential to 3.1 Dispute avoidance influence debate on the term of the national There are some obvious mechanisms for dis- Parliament as well.57 An example of a different pute avoidance that should be considered in kind is provided by recent amendments to the drafting any federal-type constitution. One constitutions of Victoria and New South Wales includes the prescription of clear competency to protect aspects of judicial independence. In boundaries between the two spheres of govern- neither case is the provision as sweeping as the ment. Words cannot be so clear as to preclude separation of judicial power in the national con- all disputes but obvious ambiguities can be stitution. Both sets of state provisions can nev- avoided, with an eye to the experience of other ertheless be understood as an appropriate federations. One particular problem is the effect response to local issues and pressures. Thirdly, of changing circumstances on allocations of a variety of constitutional alteration procedures constitutional competency. A possible solution, has been developed for state constitutions, which will not always be appropriate, is to draft ranging from approval of major constitutional limits on power in a way that allows future changes by referendum to alteration by simple flexibility. Thus in 1901, the Australian Con- or special parliamentary majorities. Cross fertil- stitution conferred power on the Common- isation of these mechanisms between states is wealth Parliament to make laws for postal, tele- leading to a spread in the use of the referen- graphic, telephonic and “other like services”, dum. As this occurs, the extreme flexibility that on which national legislation for the electronic originally characterised Australian state consti- media now is based.58 tutions will give way to greater rigidity. The A second technique, even more difficult to relative success of state constitutional referen- perfect, is the development of a culture in dums suggests that, even in this case, they are which governments and parliaments take likely to remain easier to alter than the national responsibility for compliance with competency constitution. limits, instead of continually pushing the One area of pending experimentation is con- boundaries of their competency through the

30 Saunders courts. The South African Constitution pro- treaty is made, if not before, during the negotia- vides a possible model, with its requirement for tion phase. all spheres of government to “not assume any Again, the Australian experience is illustra- power or function except those conferred on tive. The reach of the federal “external affairs” them in terms of the Constitution”.59 By con- power was a major area of dispute between trast, the institutions of Australian government, governments in the 1970s and 1980s.61 The both Commonwealth and state, accept disputes legal issues ultimately were resolved in favour over power as a normal aspect of governance, of the centre. The potential for further disputa- which can be used to attain a more favourable tion on political grounds was stemmed by outcome if established boundaries appear vul- cooperative arrangements, developed in several nerable, for whatever reason. phases, with increasing levels of sophistication. An alternative to competition over power, The most recent of these involve a “Treaties waged through the courts, is agreement Council” constituted by Heads of Government, between governments to take joint action in as a forum for consultation about treaties with areas of shared interest or potential conflict. implications for state power.62 Depending on the institutional structure of the A mechanism of a different kind for discour- federation, agreements may be made through aging disputes that can be resolved only intragovernmental means. The German through courts is the development of a culture Bundesrat is an example. The South African of cooperation. The most familiar example is National Council of Provinces has some poten- the principle of Bundestreue, associated with tial to become another. In most common law the jurisprudence of federations in the German federations, however, agreements are intergov- tradition. Drawing some inspiration from the ernmental in nature. A wide range of mecha- German experience, the South African nisms is available for use, depending upon the Constitution has specifically prescribed princi- outcome sought. Ministerial meetings involving ples of cooperation, in Chapter 3.63 The princi- all participating jurisdictions are a common pal value of such a mechanism is likely to be forum for negotiating arrangements of these political in character. It encourages cooperation kinds. The experience of both Australia and and legitimises collective action. In extreme Canada suggests that, if this medium is used, cases, such principles also may be employed by some attention should be paid to ensuring ade- courts to refuse to deal with cases that come quate accountability for the decisions that are before them prematurely or to penalise parties taken.60 acting in a manner that is inconsistent with One catalyst for disputes over power in cooperative standards. recent years has been the impact of treaties on the established modes of operation of federal- 3.2 Dispute resolution procedures type systems. The power to enter into treaties Disputes cannot always been avoided. A degree typically is a federal competence. Implemen- of friction and competition between govern- tation usually lies with the federal sphere as ments is natural and to be expected. In any well. As treaties have increased in number and event, private parties often will challenge the range, federal power has expanded correspond- competency of a national or subnational law on ingly, at the expense of subnational compe- constitutional grounds, if they have standing to tence. Most significantly, by this means, federal do so. Courts usually settle such disputes. The power can extend to areas previously consid- Swiss initiative and referendum procedure ered largely the responsibility of subnational offers an alternative that is, however, specific to units. Heritage protection and the rights of chil- Swiss experience and culture and would be dif- dren are examples of areas now covered by ficult to transplant successfully elsewhere. treaties, which would not necessarily have There is a range of variations in the proce- attracted national power in the past. Some fed- dure for judicial review, which may affect its erations have sought to circumvent the legal operation in practice. and political disputes to which this develop- Some of the most obvious concern the struc- ment inexorably leads through cooperation. To ture of the courts themselves. Jurisdiction to be effective, the cooperation should begin at the deal with disputes over the federal division of point at which the decision to enter into the power are likely to be vested in the general

31 Saunders courts in common law federations and in spe- one that declares it inoperative.67 In the latter cialist constitutional courts in civil law federa- case, the challenged legislation may revive, if tions. The systemic distinction is not necessari- and when the constitutional impediment is ly determinative. South Africa, for example, removed. has a specialist constitutional court with juris- Finally, different judicial systems employ a diction over competency disputes.64 Different variety of ways of limiting access to the courts rules about the qualifications and tenure of or limiting the impact of judicial decisions. One judges are likely to apply in specialist and gen- of the most familiar in common law systems is eral courts. Whether and to what extent these the concept of non-justiciability. A court may affect the principles developed by those courts decline to intervene if, for example, a dispute is a question that may merit further considera- lies solely within the political arena. In tion. Australia the doctrine has been applied in vari- A structural issue of a different kind concerns ous contexts. Relevant for present purposes, the relationship of the courts to the spheres of courts have used the doctrine to avoid involve- government themselves. Some federal-type sys- ment in disputes over intergovernmental agree- tems, of which the US is a prominent example, ments that they decide are largely political in have a dual court system. In others, of which character.68 Even where an issue is justiciable, Canada and South Africa are examples, there is courts may employ a variety of presumptions in a single system of independent courts, possibly favour of validity. Using Australia as an exam- with varying degrees of reliance on the spheres ple again, the cooperative character of a chal- of government, at different levels in the court lenged measure has been identified as a factor hierarchy. Australia is a hybrid: Chapter III of that favours validity, in marginal cases.69 More the Constitution confers sufficient flexibility in directly still, the South African Constitution the vesting of federal jurisdiction to accommo- authorises courts to refer disputes back to the date either a single or a dual court system cul- parties where they have not taken adequate minating, in either case, in the High Court at steps to resolve the matter in another way.70 the apex of the judicature. Among the many implications of these structural differences is 3.3 Principles the likelihood that a single court system will The principles to be applied by a court in set- encourage homogeneity of legal principles tling a competency dispute will depend in part developed through the courts. In contrast, the on the constitution. The normal rule is that existence of separate courts systems in the sub- national constitutions and national laws will national sphere provides a setting for greater prevail if they otherwise are valid. In practice, jurisprudential diversity. however, the principles adopted by courts are The decision-making techniques used by likely to depend on the federal model. Relevant courts may affect the course of judicial review variables include the use of a vertical or hori- as well. Three examples may be given. First, zontal division of power; the exclusive or con- unlike their counterparts in the US and current allocation of power; and the assignment Australia, the Canadian courts have an advisory of residual power. jurisdiction, which can be used to resolve dis- The strength of the federal culture may be putes at an earlier stage and which has played a relevant also. Ideally, federation requires accep- significant role in key federal issues in tance of the values of decentralisation and Canada.65 Secondly, some federations have diversity, mutual respect between the different experimented with the technique of prospective spheres of government and acquiescence by overruling, giving governments the opportunity governments in the limitation of their own pow- to correct constitutional problems and avoiding ers. The existence of such a culture within the the disruption of judicial invalidation with polity as a whole is likely to affect the tenor of immediate effect.66 Whatever its merits in judicial decisions as well. terms of convenience, common law courts are Australia is an example of a country in which wary of this technique because of the focus it the federal character of the constitutional sys- casts on the law-making role of the judge. tem is in some conflict with the traditions of Thirdly, a distinction may be drawn between a centralisation and parliamentary sovereignty judicial order that invalidates legislation and that tend to be associated with parliamentary

32 Saunders government, Westminster-style. Arguably, this tional constitutions. In practice, the areas of has affected its constitutional jurisprudence. control will depend largely on the differing The High Court has rejected any notion of “bal- needs of different jurisdictions. The Australian ance” between the national and subnational experience suggests, however, that there may spheres in favour of a “literal” interpretation of be some value in formally considering the prin- federal power, which has proved centralising in ciples to be applied, rather than leaving the out- practice.71 Even so, some limits on power have come purely to historical chance. A comparison been implied from the federal structure of the with other federations, moreover, may help to Constitution, to deal with the special case suggest what such principles might be. where one level of government impinges on the An associated issue concerns the manner of actions of another. The federal immunity prin- alteration of those parts of national constitu- ciples presently prevent discrimination by the tions that control or significantly affect subna- Commonwealth against or between states and tional constitutions. The difficult question here any action on the part of the Commonwealth is whether there should be a requirement for which threatens the existence of state govern- agreement on the part of subnational institu- ment institutions or their capacity to function.72 tions to changes of a certain kind. If the answer Conceivably, these principles may in time pro- is yes, other questions follow about the types of vide some limit on the extent to which national changes that should attract special procedures laws can interfere with key institutions of state and the form that such procedures might take. government, established by state constitutions. One final issue – fascinating in the relatively adversarial culture of most common law federa- CONCLUSION tions – is the practical effect of principles of The comparative study of relations between cooperation, however derived, on courts and on national and subnational constitutions is still in organs of government. Whether such principles its early stages. make a difference and whether cooperation can This paper has identified at least three issues be mandated, if not already present in the feder- of important principle on which greater com- al culture, are points of particular interest. For parative understanding would be useful in these reasons, among many others, the evolu- Australia and, possibly, in other federal-type tion of the South African Constitution is likely systems. The first, in terms of logic, is the areas to attract much attention from federalists in which national constitutions control subna- throughout the world, over the coming years.

ENDNOTES 1) Cheryl Saunders, “Constitutional arrange- manner in which a national constitution ments of federal systems” (1995) 25 governs the content of subnational consti- Publius, 1-19. tutions or the way in which subnational 2) For present purposes, the concept of con- governments conduct their affairs. trol is construed broadly to include any 3) Similarly, section 107 saved the power of

33 Saunders

state parliaments and section 108 saved Northern Territory Statehood Convention existing state laws. 1998” (1998) 9 Public Law Review 155. 4) New South Wales v Commonwealth (1975) 22) Op.cit., 157. 135 CLR 337, 372; Victoria v Common- 23) Alistair Heatley and Peter McNab “The wealth (1971) 122 CLR 353, 371-2; China Northern Territory Statehood Referendum Ocean Shipping v South Australia (1979) 1998” (1999) 10 Public Law Review 3. 145 CLR 172, 182; Commonwealth v 24) Constitution Alteration (Establishment of Queensland (1975) 134 CLR 298, 336- Republic) 1999. 337; Western Australia v Wilsmore (1982) 25) Queensland and Western Australia; proba- 149 CLR 79, 86; Theophanous v Herald & bly also New South Wales and South Weekly Times (1994) 182 CLR 104, 106; Australia. Muldowney v South Australia (1996) 186 26) Constitution Alteration (Establishment of CLR 277; McGinty v Western Australia Republic) 1999, Schedule 3, section 5. (1996) 186 CLR 140, 170-173, 207-210. 27) Some commentators have suggested that 5) Constitution, section 76(1). majorities in six states nevertheless are 6) Provided in the Colonial Laws Validity necessary because the original federation Act 1865. was established “under the Crown”. In 7) Section 6. effect, their argument is that removal of 8) Section 128. the Crown would require renewal of the 9) Commonwealth of Australia Constitution federal bargain. Act 1900 (Imp) section 6. 28) Constitution Alteration (Establishment of 10) Sections 7 and 24 respectively. Republic) 1999. 11) Section 125 of the Constitution requires 29) Constitution Alteration (Establishment of the “seat of Government” to be “within Republic) 1999, Schedule 3, section 5. territory which shall have been granted to 30) Statute of Westminster 1931 (Imp); adopt- or acquired by the Commonwealth” within ed for Australia by the Statute of the state of New South Wales. Westminster Adoption Act 1942, backdat- 12) Attorney-General (Commonwealth) v The ed to 1939. Queen (1957) 95 CLR 529, 545. 31) Australia Act 1986 (Aust) sections 1,3. 13) Section 80. 32) Port Macdonnell Fishermen’s Association 14) Section 117. v South Australia (1989) 168 CLR 340. 15) Section 92. 33) Constitution of the Republic of South 16) Local Constitutional Conventions Pro- Africa, Chapter 6. gram, Summary of Conclusions, Constitu- 34) Section 144. tional Centenary Foundation, 1999. 35) The Constitution of the United States, 17) Northern Territory (Self-Government) Act Article IV, section 4. 1978 (Cth), section 49; Australian Capital 36) Section 143. Territory (Self-Government) Act 1988 37) Article 28. (Cth), section 69, both extending the effect 38) Australian Constitution, section 117. of the free trade provision to the territo- 39) Section 92. ries. 40) Section 12. 18) Capital Duplicators Pty Ltd v Australian 41) Section 15. Capital Territory (No.1) (1992) 177 CLR 42) Constitution Alteration (Establishment 248 (section 90); Newcrest Mining (WA) of Republic) 1999, proposed new section Ltd v Commonwealth (1997) 190 CLR 513 63. (section 51 (xxxi)). 43) Section 110. 19) Constitution Alteration (Territories) 1977, 44) Section 15. conferring the right to vote in referendums 45) Sections 15, 84. on voters in certain territories. 46) Section 77(iii). 20) Northern Territory Session Committee 47) Section 73. Foundations for a Common Future 48) Kable v Director of Public Prosecutions (1996). (1996) 189 CLR 51 21) Alistair Heatley and Peter McNab “The 49) Australian Capital Television v Common-

34 Saunders

wealth (1992) 177 LR 106; Nationwide man (eds), Governing Federations, Hale News v Wills (1992) 177 CLR 1; and Iremonger, Sydney: 123 (1989). Theophanous v Herald & Weekly Times 61) New South Wales v Commonwealth (1975) (1994) 182 CLR 104 ; Stephens v West 135 CLR 337; Koowarta v Bjelke-Peter- Australian Newspapers (1994) 182 CLR sen (1982) 153 CLR 168; Commonwealth 211; Lange v Australian Broadcasting v Tasmania (1983) 158 CLR 1. Corporation (1997) 71 ALJR 818. 62) Cheryl Saunders, “Articles of faith or 50) Australian Constitution, section 96. lucky breaks?” (1995) Sydney Law 51) Australian Constitution, section 105A; Review, 148. Financial Agreement between the Com- 63) Bertus de Villiers “Bundestreue: the soul monwealth and the States, 1927. of an intergovernmental partnership” 52) Cheryl Saunders, “Impact of intergovern- Konrad-Adenauer-Stiftung, Occasional mental arrangements on Parliament”, Papers, 1995. (1984) 9 Legislative Studies Newsletter, 64) Section 167(4). 29. Cheryl Saunders, “Government bor- 65) Most recently, in Reference re Secession rowing in Australia”, (1989) 17 Mel- of Quebec (1998) 161 DLR (4th) 385. bourne University Law Review, 187. 66) Ha & Lim v New South Wales, High Court 53) Sections 90, 92, 117 in particular. of Australia, 1996. 54) G. Alan Tarr “The new judicial federalism 67) Butler v Attorney-General of Victoria in perspective” (1997) 72 Notre Dame (1961) 106 CLR 268. Law Review 1097. 68) South Australia v Commonwealth (1962) 55) Constitution of New South Wales. 108 CLR 130. 56) Constitutions of Victoria, South Australia. 69) R v Duncan; ex parte Australian Iron and 57) Local Constitutional Convention Pro- Steel Pty Ltd (1983) 158 CLR 535. gramme, Summary of Conclusions, 1999. 70) Article 41(4). 58) Section 51(v). 71) Amalgamated Society of Engineers v 59) Article 41(1)(f). The article is reinforced Adelaide Steamship Company (1920) 28 by other provisions: for example, sections CLR 129. 41(3) and (4); 150. 72) Melbourne Corporation v The Common- 60) Cheryl Saunders, “Accountability and wealth (1947) 74 CLR 31; Queensland access in intergovernment affairs: a legal Electricity Commission v The Common- perspective”, Wood, Williams and Shar- wealth (1985) 159 CLR 192.

35 Development of Concurrent Legislation – a New South African Perspective

Dirk Brand

INTRODUCTION practice a more substantial development of The new constitutional system designed at concurrent legislation.5 Kempton Park and further refined in the In this paper some reflections will be given Constitutional Assembly at Cape Town is a on the concept of concurrency as it has devel- decentralised system of government, or, put oped over the past five years in South Africa. differently, a system with certain federal char- This will include some practical examples of acteristics. The introduction of this new consti- legislation in the concurrent field, problems tutional order in 1994 included, among other experienced with the concept in practice (in things, a new concept in South African consti- particular from the side of provinces) and some tutional law, namely concurrency. At the suggestions for reform or improved practical Kempton Park constitutional negotiations it application of concurrency. was clear that the new provinces had to have some measure of legislative authority. Some 1. CONSTITUTIONAL PROVISIONS parties argued for more powers for the 1.1 Interim Constitution6 provinces, while others were more centralisti- The constitutional system designed under the cally inclined. The result of this debate was an Interim Constitution is one of decentralisation agreement that provinces should have a list of of government whereby government consists of legislative powers concurrent with the national three levels – national, provincial and local government. Concurrency is therefore an government. Functions were allocated to the essential element of our new constitutional sys- national and provincial levels of government tem and appears to be a concept that is accept- by way of listing the areas of concurrent leg- ed in some other decentralised or federal sys- islative jurisdiction. Residual legislative pow- tems such as Germany and Canada. ers vested in the national government, although In the German constitutional system there is it was not expressly stated as such in the provision for concurrent legislative jurisdiction Interim Constitution. Whereas the bulk of of the Federation and the Länder.1 The German provinces’ legislative powers was concurrent, Basic Law also uses another concept which provinces had limited exclusive legislative relates to the issue of concurrency, namely that authority, such as the power to adopt a provin- of framework legislation.2 In Canada, concur- cial constitution7 and certain exclusive tax rais- rency is the exception rather than the rule if one ing powers.8 Concurrency was originally merely looks at the constitutional provisions. defined in a manner which seemed to indicate The Constitution Act of 1867 contains compre- that provinces had the competence to legislate hensive lists of exclusive powers of the on any of the matters listed in Schedule 6, but Parliament and the provincial legislatures in so doing had to anticipate if and to what respectively.3 There are only three provisions extent Parliament could make use of one of the in the Constitution Act which specifically con- “overrides” in section 126 (3) in passing a law fer concurrent powers.4 There is, however, in on the same subject matter.9 Although the

37 Brand wording of section 126 was changed,10 the listed in Schedules 4 (Functional areas of con- result of the construction of concurrency was current national and provincial legislative com- still the same. The inference could still be made petence) and 5 (Functional areas of exclusive that a province, in exercising its concurrent leg- provincial legislative competence) of the new islative competence, had to predict the legisla- text complied with Constitutional Principles tive activity of Parliament in order to determine XIX and XXI. the scope of the provincial law on the same Although both Schedules 4 and 5 are divided subject matter. This was clearly an inhibiting into a Part A and a Part B, which relate to local factor on provinces’ actual exercise of their government matters, the discussion below will concurrent legislative authority. focus on the primary areas of concurrency A certain amount of “natural” conflict is con- between the national and provincial govern- tained in any constitutional system where there ments, which appears in Part A of Schedule 4. is an allocation of concurrent powers to differ- In contrast to the structure of the provinces’ ent levels of government. Conflict regulation concurrent legislative authority in the Interim thus becomes an important element of such a Constitution where the list of national “over- constitutional system. Extensive provision was rides” was included in the enabling provision,16 therefore made in the Interim Constitution for a somewhat clearer construction of the legisla- regulation of conflict between the provisions of tive authority of provinces and of the national national and provincial legislation in concurrent government is used in the new Constitution. functional areas.11 If the conflict regulatory The legislative authority of Parliament and that rules are applied and the conflict is resolved, of the provincial legislatures are separately list- none of the two conflicting laws will be invali- ed in section 44 and section 104 of the Consti- dated. The one is merely subordinated to the tution respectively. In each case one of the enu- other law to the extent of the conflict.12 The merated legislative functions is to pass legisla- paramount provisions of the other law will then tion with regard to any matter within a func- prevail. tional area listed in Schedule 4. Provincial leg- islatures thus have original legislative authority 1.2 New Constitution13 over Schedule 4 matters, which they share with The basic constitutional scheme designed under the national Parliament. No mention is made of the Interim Constitution was carried through to the list of “overrides” in this part of the con- the new Constitution, but significant changes struction of concurrency. This only becomes were made to the content of the scheme, in par- relevant, according to the Constitution, when ticular the allocation of powers among the vari- there is a conflict between national and provin- ous spheres of government, as they are now cial legislation falling within a functional area referred to. The 34 Constitutional Principles listed in Schedule 4. This signifies a significant against which the new text was tested by the shift in the constitutional construction of con- Constitutional Court contained a number of currency. principles relating to the system of government, It is no longer envisaged that provinces when the allocation of powers and the relationship drafting laws in the concurrent field should be between and among the various governments in prophetic concerning if and to what extent the South Africa.14 Constitutional Principle XIX national government will make use of the inter alia provided that: “overrides” or national criteria to design a “The powers and functions at the national national law on the same subject matter. and provincial levels of government shall In addition to the specific authority to legis- include exclusive and concurrent powers.” late on matters falling within Schedule 4, Constitutional Principle XXI dealt in more provinces’ concurrent legislative authority is detail with the allocation of powers and also expanded by the inclusion of section 104 (4), laid the basis for the conflict regulatory provi- the incidental legislative power. Legislation sions in the new Constitution. “that is reasonably necessary for, or incidental When assessing the new text, the Constitu- to, the effective exercise of a power concerning tional Court in The First Certification Judge- any matter listed in Schedule 4” is also regard- ment15 was satisfied that the allocation of pow- ed as Schedule 4 legislation. A similar provi- ers to national and provincial governments as sion was included in the Interim Constitution.17

38 Brand

Provinces can use this power creatively to rency is developing in South Africa. When a expand their scope of legislative activity. An province is considering new legislation with example of such legislation is the Western Cape regard to a matter in a concurrent functional Land Administration Act, 6 of 1998, which area, it has to determine whether there is deals with the administration of all provincial national legislation that might be assigned, or land matters, whereas “land matters” is not a that has already been assigned, to provinces. If functional area listed in Schedule 4. there has been an assignment, the assigned leg- islation may form the basis for discussion on 1.3 Assignment of legislation the new provincial legislation. A complicating A significant feature of the legislative frame- factor in the development of legislation on con- work within which the newly created provinces current matters is the fact that a national law have had to function since May 1994 is the pos- might be only partially assigned to provinces. sibility of assignment of national legislation to This means that the provinces have an assigned provinces. It was expected that it would take law, for example on cultural matters, but certain some time before the new provincial legisla- provisions that were not assigned stay with the tures had exercised their legislative authority to national government and thereby form a skele- create a new body of provincial legislation. The ton national law on cultural matters. This caus- provincial executives, however, had to govern es a somewhat odd situation that could lead to their respective provinces in accordance with much legal uncertainty. the Interim Constitution and could not wait for the legislatures to pass all the provincial laws 2. RESOLUTION OF CONFLICT required to do so. The drafters of the Interim Conflict regulation is dealt with in the new Constitution thus made use of the concept of Constitution in a different manner than before. assignment of legislation to fill this vacuum. Whereas the Interim Constitution contained the The President had the authority to assign the conflict regulatory measures in the provision administration of legislation “to a competent that stipulated the concurrent legislative author- authority within the jurisdiction of the govern- ity of provincial legislatures and Parliament, ment of a province”.18 Provinces thus became conflict regulation is dealt with as a separate the executing authorities of such assigned laws. issue in the new Constitution. A set of conflict The assignment of executive authority to a regulatory rules similar to that contained in sec- provincial government is clearly an irrevocable tion 126 (3) of the Interim Constitution is again action by the President.19 There is no constitu- included, but the wording differs substantially tional provision for a reversal of such proce- from the text of the Interim Constitution and dure. tips the scales in favour of the national govern- In terms of a transitional provision in the new ment. Constitution, assignment of legislation to In addition to these rules, a new chapter on provinces is still possible.20 Here also no sug- cooperative government,23 which includes a list gestion is made that there is authority to reverse of principles of cooperative government and the procedure. A consequence of assigned leg- intergovernmental relations, is included in the islation is that it becomes provincial legislation new Constitution.24 The constitutional negotia- in terms of section 239 of the new Constitu- tors chose a system of cooperative federalism tion.21 Provinces have legislative authority to comparable to the German system, in contrast pass legislation with regard to any matter listed to the competitive federalism of the United in Schedule 4 and 5,22 which thus includes the States (US). The fact that the new Constitution competence to amend or repeal any existing clearly stipulates that we now have a system of provincial legislation, including legislation cooperative government is of particular impor- assigned to the province. tance to the processes of resolving conflict The scope of legislation to be assigned in between different governments. terms of Item 14 of Schedule 6 of the new The Constitutional Court said in this respect Constitution includes matters in the concurrent in The First Certification Judgement at par as well as the exclusive provincial area. The [290]: question of assignment of legislation therefore “Intergovernmental cooperation is implicit has a major impact on the way in which concur- in any system where powers have been allo-

39 Brand

cated concurrently to different levels of (i) if both laws were validly enacted; government.” (ii) if the national law is uniformly applicable It is apparent from the further reasoning of the in the country and meets any of the over- Court that the aim of Chapter 3 is to keep inter- riding provisions listed in section 146 (2); governmental disputes out of the courts as far (iii) if the national law meets any of the over- as possible. In the Education Policy Bill-case25 riding provisions in section 146 (3). Chaskalson P said at par [34] with respect to The conflicting provisions of the national law concurrency and cooperation: will prevail if the court is satisfied that it meets “Where two legislatures have concurrent the requirement in either (ii) or (iii). If not, the powers to make laws in respect of the same conflicting provisions of the provincial law will functional areas, the only reasonable way in prevail. The conflicting provisions in the other which these powers can be implemented is law will not be invalidated, but merely become through cooperation.” inoperative for the duration of the existence of Intergovernmental disputes should only be the conflict.27 The provisions that are not in before a court as a last resort when all other conflict will still be operative. remedies are exhausted. These provisions apply to all situations of intergovernmental disputes, 3. CONCURRENCY IN PRACTICE including situations where there is conflict The following two examples of how legislation between provisions of an Act of Parliament and on concurrent matters has developed will pro- a provincial Act. It is clear that it is also applic- vide some insight into the mechanics of inter- able in the process of development of legisla- governmental interaction as well as the pitfalls tion in the concurrent field, as will be illustrated relating to the amendment of legislation on con- later in the discussion on practical examples. current matters. The governments concerned are required in terms of section 41 (3) to “make every reason- 3.1 Welfare Laws Amendment Bill, 1997 able effort to settle the dispute by means of “Welfare services” is a functional area listed in mechanisms and procedures provided for that Schedule 4 of the new Constitution and is purpose”. Parliament has not yet passed legisla- therefore an area of concurrent legislative tion required in terms of section 41 (2) that authority. The Social Assistance Act, 1992, was must provide for intergovernmental mecha- assigned to a competent authority within the nisms and procedures. Nevertheless, the differ- jurisdiction of the government of each of the ent spheres of government are still obliged to provinces.28 The result of this was that on 1 act in accordance with the principles of cooper- March 1996 (the effective date of the assign- ative government and to try and resolve any ment) the rendering of social assistance in intergovernmental conflict so as to avoid resort terms of this law became a provincial function. to litigation. This could in practice include The law itself has since that date been adminis- negotiations between the relevant national and tered by the provinces. By virtue of the defini- provincial ministers to resolve the conflict. If tion of “provincial legislation” in the new agreement is reached by way of consultation Constitution, this Act became provincial legis- and negotiation, it may cause one or both of the lation insofar as it has been assigned to the two conflicting laws to be amended. However, provinces. if no solution is found on a political level, the The Welfare Laws Amendment Bill, 1997, matter will have to be resolved by an appropri- introduced in Parliament during the second half ate court. of 1997, purported to reverse the arrangement At this point the conflict regulatory provi- as set out above by amending the entire Social sions contained in sections 146 to 150 are par- Assistance Act, 1992 – that is, both the national ticularly relevant, and act as a yardstick against skeleton Act as well as the assigned provincial which a competent court will decide the ques- laws. The long title of the Bill inter alia includ- tion of the alleged conflict of laws falling with- ed the following statement: in a functional area listed in Schedule 4 – in “to restore the administration of the Act [the other words, concurrent legislation.26 When a Social Assistance Act, 1992] to the national court considers the question of conflict between government after such administration was two laws, it has to determine: assigned by proclamation under the Interim

40 Brand

Constitution to the provincial govern- of laws that cover education below tertiary ments.” level. Before May 1994, school education was The Bill was thus expressly aimed at reversing governed by different laws and administered in the assignment and explicitly transferring the a very fragmented manner. A process of ratio- administration of the social assistance function nalisation of school education was started after from provinces to the national government. the commencement of the Interim Constitution It is obvious that an incorrect constitutional in order to create a uniform approach to the approach to the amendment of the legal frame- provision of school education. Old order legis- work governing social assistance has been fol- lation had to be amended or repealed and new lowed. The Western Cape Provincial Govern- national and provincial legislation had to be ment objected to this unconstitutional way of developed. As the new system slowly unfolded, amending assigned legislation falling within the it became clear that provincial governments concurrent field. This led to various consulta- would be the main administrators of school tion and negotiation sessions between the education, while the national government will provincial and national governments. The result focus on policy matters and matters that require was the new Welfare Laws Amendment Bill, uniform, nationwide norms and standards to 1997, which validly amended only the skeleton be set. national law on social assistance. The nine As a first step in the process of rationalisation assigned provincial laws on social assistance and transformation from a fragmented to a are still in place and may validly be amended more unified system of school education, some by the various provincial legislatures. However, of the old national acts were assigned to the the amendment to the Social Assistance Act, provinces in October 1994,29 for example the 1992, was quite an extensive amendment that Act on Education Matters (House of Assem- overrides some of the provisions of the bly), 70 of 1988, and the Coloured Persons assigned legislation and thus prevails over such Education Act, 47 of 1963. Some of the provi- legislation to the extent of the conflict. sions of these acts were not assigned and there- The conflict in this case fell on two levels, fore remained national legislation. Provinces namely: also developed their own legislation on school • a conflict between a national bill, the Welfare education, such as the Western Cape School Laws Amendment Bill, 1997, and the Education Act, 4 of 1994. In 1996, Parliament assigned portions of the Social Assistance adopted two new laws on school education, Act, 1992, which became provincial legisla- namely the National Education Policy Act, 83 tion; and of 1996 and the South African Schools Act, 84 • a conflict between the national bill and the of 1996. The South African Schools Act, 1996, Constitution, because of the purported which was adopted in order to provide a uni- amendment of the provincial laws. form system for the organisation, management In resolving the conflict, the national govern- and financing of schools throughout South ment, the Western Cape provincial government Africa, only came into operation on 1 January as well as Parliament attempted to settle the 1997. Existing provincial laws had to be dispute by means of intergovernmental negotia- amended to fit the new scheme as stipulated in tion and cooperation, which process eventually this act. resulted in constitutionally sound legislation When the new Constitution came into opera- and correct legislative procedures. Recourse to tion on 4 February 1997, we therefore had a sit- the courts was thus avoided, as is envisaged in uation whereby school education in South section 41 of the Constitution. Africa was governed by new national legisla- tion, assigned legislation and existing original 3.2 Education laws provincial legislation; clearly an example of One of the listed functional areas of concurrent concurrency in action. In order to create har- legislative authority in Schedule 4 of the new monised legislative governance of school edu- Constitution is “education at all levels, except cation, it thus became necessary to review all tertiary education”. Both Parliament and the existing legislation. nine provincial legislatures may thus pass legis- The technically correct approach was fol- lation on this matter. There are indeed a number lowed by Parliament when it adopted the South

41 Brand

African Schools Act, 1996. This act repealed administrations. They started in May 1994 not the national provisions of the various assigned only with a shortage of experienced lawyers, acts, namely: but also with a serious deficit in their legislative • Coloured Persons Education Act, 47 of 1963 drafting capacity. This had a significant effect • Indians Education Act, 61 of 1965 on the number and quality of laws that were • Education and Training Act, 90 of 1979 passed by provinces. In contrast thereto, the • Private Schools Act (House of Assembly), national government had a pool of experienced 104 of 1986 legal advisors who could take care of the leg- • Education Affairs Act (House of Assembly), islative drafting needs of the national govern- 70 of 1988. ment. As far as the provinces are concerned, the The notion of concurrency is still relatively Western Cape is again used as example. The new to politicians, administrators and lawyers Western Cape Provincial Legislature amended alike, and this leads to a lack of understanding its School Education Law, 1994, in 1997 to be of the notion. One often finds that some of the in line with the new national legislation.30 This roleplayers concerned with the development of amendment law has also repealed all the sec- legislation in the concurrent field do not under- tions of the laws assigned to the province. stand the concept. Administrators and politi- Throughout this process of reshaping the school cians at provincial level sometimes think that education environment, there have been various they are not allowed to take the initiative in intergovernmental meetings and discussions. developing concurrent legislation, but that they The principles of cooperative government had must wait for their national counterparts to first to be observed by all roleplayers in this process. initiate a national law on the subject – for In respect of the various legislative processes, example on the development of agriculture – in particular the amendment of assigned legisla- before they can consider a provincial law on the tion, this is a case where Parliament as well as same subject. In contrast thereto, some national the provincial legislatures acted correctly and in administrators and politicians sometimes create accordance with the new Constitution. the impression that a national act on a concur- rent matter, such as agriculture, should be first, 4. PRACTICAL PROBLEMS owing to the belief that the national government When evaluating the development of concur- holds the initiative to concurrent legislation. In rency in practice over the almost four years both cases these arguments signify erroneous since the introduction of the new constitutional thinking. This is a mindset problem based on a order in South Africa, it soon becomes clear lack of knowledge and understanding of the that the application of this notion is fraught notion of concurrency. If consideration is given with problems. The new Constitution envisages to the way that concurrency has developed in the development of legislation in the concurrent other federal systems, as well as the particular field in a manner based on a shared responsibil- construction of concurrency in the new ity between the national and provincial govern- Constitution, it is clear that provincial govern- ments. The practice, however, often creates a ments as well as the national government have different impression: namely, that Parliament is an equal right to take the initiative in develop- very active in the concurrent field while the ing concurrent legislation. various provincial legislatures have passed a The notion of assignment – and in particular limited number of laws on concurrent matters. the fact that in a number of cases the President It can be argued that provinces have up to now assigned only part of an act to provinces – com- not fully utilised their constitutionally allocated plicates the application of concurrency. The legislative authority. result of such a partial assignment – namely, An initial problem that supports the fact that part of an act on the national statute book and provincial legislatures are not as active as part of the same original act on the provincial Parliament, is the limited legislative drafting statute books – leads to uncertainty with respect capacity of provinces compared to that of the to the application of the different provisions of national sphere of government. The newly cre- such law. The situation is aggravated if a ated provinces had to build their legal divisions provincial legislature or Parliament decides to over a period of time to support the various pass an amendment to the assigned act.

42 Brand

CONCLUSION The one technical hurdle in the implementa- Although concurrency is a feature of various tion of concurrency appears to be the way in federal or decentralised systems, different sys- which the notion of assignment of legislation tems provide different variations of concurren- has been structured and applied. Assignment of cy. The essence of the concept is, however, the legislation is a specific instrument in the hands same – i.e., that more than one level or sphere of the President that is used in a process of of government has constitutionally allocated decentralisation of authority. For legal certainty jurisdiction over the same functional areas. The it is necessary that the effect of an assignment South African constitutional system provides of legislation should be a clear and distinct its own version of concurrency, which is still in division of authority between the national and its infancy. provincial governments concerned. The particu- The problems that were experienced up to lar law that is assigned may be amended or now with the development of concurrent legis- even re-enacted by the President in order to lation in South Africa are not insurmountable. regulate its interpretation.31 These powers A growing constitutional awareness and com- should be used creatively in aid of a clearer mitment to the constitutional state by politi- development of legislation. Although provinces cians, administrators and legal practitioners will could benefit from more meaningful assign- contribute much to the improved development ments, it is also in the interests of the national of concurrent legislation. From the perspective government that the assignment action be done of provinces, more training in drafting of legis- in such a way that contributes to the develop- lation should complement such constitutional ment of concurrency; in other words, the shar- awareness. ing of authority.

ENDNOTES 1) Art. 72, 74 and 74A of the Basic Law for 5) P.W. Hogg, Constitutional Law of Cana- the Federal Republic of Germany, 1949. da, 3rd ed. (Carswell, 1992) at 410. 2) Art. 75 provides for the enactment of fed- 6) Constitution of the Republic of South eral framework legislation in a number of Africa, 200 of 1993. areas in which the Länder have the right to 7) Sec. 160. legislate, which means that the Länder 8) Sec. 156. will fill in the detail of a subject on which 9) This way of defining concurrency was a framework law is passed by the Federa- criticised by U. Leonardy “Constitutional tion. provisions on devolution and federalism” 3) Sec. 91 and 92 of the Constitution Act, 144 at 157 in B. de Villiers Birth of a 1867. Constitution (Juta, 1994). 4) Sec. 92A (2) – export of natural resources; 10) Sec. 2 of the Constitution of the Republic of sec. 94A – old age pensions; sec. 95 – South Africa Amendment Act, 2 of 1994. agriculture and immigration. 11) See sec. 126 of the Interim Constitution;

43 Brand

D. Basson, South Africa’s Interim Consti- 22) Sec. 104 (1) (b)(i) and (ii) of the new tution – Text and Notes revised edition Constitution. (Juta, 1995) at 199. 23) Chapter 3. 12) Ex parte Speaker of the National Assem- 24) For a discussion on the history of the prin- bly: In re Dispute Concerning the Con- ciples of cooperative government and stitutionality of Certain Provisions of the Bundestreue see B. de Villiers “Bundes- National Education Policy Bill 83 of 1995 treue: the soul of an intergovernmental 1996 (3) SA 289 CC at par. [16] and [17]. partnership” in Konrad-Adenauer-Stiftung 13) Constitution of the Republic of South Occasional Papers (March 1995). See Africa, 108 of 1996. also D. van Wyk “’n Paar opmerkings en 14) See in particular CPs XVI to XXVI. vrae oor die nuwe Grondwet” 1997 (60) 15) Ex parte Chairperson of the Constitutional THRHR 377 at 389, and D. J. Brand “The Assembly: In re Certification of the South African Constitution – three crucial Constitution of the Republic of South issues for future development” in Stell. LR Africa, 1996 1996 BCLR 1253 CC; 1996 1998 (2) 182 at 184 for some comments (4) SA 744 CC. on the development of intergovernmental 16) Sec. 126 (3). relations in South Africa. 17) Sec. 126 (2). 25) See note 12. 18) Sec. 235 (8) of the Interim Constitution. 26) Klaaren “Federalism” at 5-12 in Chaskal- See also Chaskalson and Klaaren “Provin- son et al Constitutional Law of South cial government” at 4-4 in M. Chaskalson Africa, 1996. et al Constitutional Law of South Africa, 27) Sec. 149. 1996. 28) On 23/02/1996 the President, by Procla- 19) Executive Council, Western Cape Legis- mation R7 of 1996, assigned in terms of lature v President of the Republic of South sec. 235 (8) of the Interim Constitution the Africa and Others 1995 (4) SA 877 CC at administration of the whole of the Social par. [173]. Assistance Act 59 of 1992, except sec. 13, 20) Schedule 6, Item 14 (1): “Legislation with to the provinces. regard to a matter within a functional area 29) The President had assigned by way of listed in Schedule 4 or 5 to the new Proclamation R 151 of 31 October 1994 Constitution and which, when the new the following laws partially to the provin- Constitution took effect, was administered ces to administer, viz. Coloured Persons by an authority within the national execu- Education Act, 47 of 1963; Indians Educa- tive, may be assigned by the President, by tion Act, 61 of 1965; Education and Train- proclamation, to an authority within a ing Act, 90 of 1979; Technical Colleges provincial executive designated by the Act, 104 of 1981; Private Schools Act Executive Council of a province.” (House of Assembly), 104 of 1986; and 21) “‘Provincial legislation’ includes (a) sub- Education Affairs Act, (House of Assem- ordinate legislation made in terms of a bly) 70 of 1988. provincial Act; and (b) legislation that was 30) It was amended by the Western Cape in force when the Constitution took effect School Education Act, 12 of 1997. and that is administered by a provincial 31) Item 14 (2) of Schedule 6 of the new government.” Constitution.

44 Cooperative Government, Devolution of Powers and Subsidiarity: the South African Perspective

Gretchen Carpenter

INTRODUCTION It is for this reason that I said earlier that sub- Subsidiarity is not among the many buzz-words sidiarity is not the same as devolution: devolu- that have hit South Africa in the past few years. tion, like delegation, means that the original In fact, most people – even those who work repository of the power is in the centre, which with concepts such as devolution, federalism, hands out some of this power to be exercised cooperative government, subnational autonomy by the constituent parts. It is up to the central and the like – have probably not encountered it authority to decide which powers are to be del- much, if at all. (Maybe because it is such an egated or devolved, and to which controls the awkward word to get one’s tongue around.) delegation will be subject. Subsidiarity, by con- Although it is by no means a recently coined trast, means that the power originally rests with word, one will scan older dictionaries in vain the smaller, lower, more regional entities, and for a definition. A more recent edition of the is delegated “upwards” at the discretion of the Collins Concise Dictionary defines subsidiarity latter, and not at the discretion of the central briefly as “the principle of devolving political authority. decisions to the lowest practical level”. As I The essence of subsidiarity is the recognition hope to point out, even this is not a good defin- that certain responsibilities and powers belong ition, as it misses the whole point of subsidiari- not at the centre but at the edges – or lower ty. down or further away, depending on how one The concept of subsidiarity is thought to likes to phrase it. have been borrowed from classical political Handy also contrasts subsidiarity with theory by the Roman Catholic Church, which empowerment – a word South Africans are turned it into a moral principle. It was restated very familiar with today. He says empower- in a papal encyclical, Quadragesimo Anno, in ment implies that someone in a superior posi- 1941, as follows: tion is giving away power to someone in an “It is an injustice, a grave evil and a distur- inferior position, while subsidiarity means that bance of right order for a large and higher power does not have to be given away – it organisation to arrogate to itself functions properly belongs where it is. By the same which can be performed more efficiently by token, of course, the responsibility belongs smaller and lower bodies.” there too. This is a somewhat high-flown and polysyllab- It is therefore clear that subsidiarity lies at ic way of saying, quite simply and in the words the heart of the call for “power to the people” of popular writer and business columnist and “decisions at grassroots level”, which have Charles Handy, that stealing people’s responsi- become so much part of the new South Africa. bilities is wrong. He continues to say that sub- It is very closely related to the concept of fed- sidiarity implies a kind of reverse delegation, eralism, when the latter is properly understood. namely a delegation of power from the outside “Federalism” is a much wider idea than “feder- to the centre. ation”: a federation is a formal political struc-

45 Carpenter ture or system of government; federalism is a vidual rights (such as the right to human digni- principle which recognises that the parts of a ty) bears a greater resemblance to the ideals of whole are as important as its centre. It can be subsidiarity. At the same time it is not difficult usefully applied to any kind of organisation, not to see the connection between subsidiarity and only to government structures. the notion of the social contract; there is more Subsidiarity – like democracy, constitutional- than an element of original authority in the idea ism and many of the other notions that occupy that a community actually contracts with the centre stage in the political and constitutional superior authority, sovereign or ruler. Why debate – is not a legal concept in the first place. would a contract be necessary if the latter had As mentioned earlier, the Roman Catholic all the authority it required? Church turned it into a moral social principle. The principle of subsidiarity can find applica- In its most elementary sense, subsidiarity gives tion in the relationship between a church and its implicit recognition to the idea that communi- members, a community and the individuals that ties are ordered hierarchically, and that the indi- constitute it, between family members and, of viduals or “lower” echelons in the hierarchy course, between the state and its members and must be enabled to do everything they have the between political structures themselves. In capacity to do. The groups and “higher” eche- modern South African idiom, it can apply not lons play a “subsidiary” role insofar as they only between the various spheres of govern- provide support and, possibly, take over the ment, but between structures of the state and functions of the lower functionary if the latter is those of . Seen in this light, sub- unable to perform them adequately and com- sidiarity has a decided significance in the rela- fortably. tionship between state organs and non-govern- In essence, this is a “bottom up” approach to mental organisations (NGOs). hierarchic relationships rather than the “top There are various ways in which subsidiarity down” approach which is characteristic of can be explained in terms of constitutional law. devolution and delegation in general. Decisions It may be seen as part of unwritten constitution- are therefore taken by those with the most inti- al law, and in a general sense it could apply to mate knowledge of local circumstances and the any relationship that has hierarchic elements. In greatest interest in making things happen. the German literature, for example, it is some- Because this is done as of right, the credit for times said that the relationship between the success cannot be claimed by the central Constitutional Court (Bundesverfassungs- authority, nor the responsibility for failure laid gericht) and the other courts is based on sub- at its door. This is where the moral aspect of the sidiarity. This means, in practice, that the so- concept of subsidiarity comes in. called “lower” courts are both entitled and The central authority – in most cases this will obliged to exercise their jurisdiction before a be the state, via its central or national organs of matter is referred to the “superior” Constitu- government – nevertheless does have a role to tional Court. This principle is also applied in play in this process. It has a positive obligation the South African context, as is evident from in the sense that it must create the climate or the number of Constitutional Court cases that provide the means that are necessary for the have dealt with proper referral. In fact, during other to operate. Its obligation also has a “nega- the first two years of its existence, the South tive” aspect in that its role is predominantly African Constitutional Court was engaged in supportive or complementary. one of the most graphic applications of the History has shown, however, that the applica- principle of subsidiarity in its endeavours to put tion of the basic principles of subsidiarity varies in place a system of referral of cases to it in greatly in practice. Even in those times and terms of the 1993 Constitution. spheres where subsidiarity was accepted as a In the constitutional sphere, subsidiarity is guiding principle, the relationship between primarily concerned with the relationship ruler and subjects, between central and local between the different spheres of government, authorities and between the church and its although it also features in the relationship members bore little resemblance to the ideal between the state and the individual or groups described above. Ironically, the present-day of individuals. Like federalism, it is not a emphasis placed on the individual and on indi- notion which is peculiar to federations, but it is

46 Carpenter regarded as one of the typical features of a fed- could be heard calling for the relationship eration. Federal systems manifest a clear between the national and provincial levels of demarcation of authority between the federal, government to be based on the principle of sub- provincial and local levels or spheres of gov- sidiarity. It seems that what was meant was ernment. more or less the notion of subsidiarity as Subsidiarity can have an impact on structure, defined in the Collins Concise Dictionary on the allocation of powers and on the exercise referred to earlier, namely a devolution of polit- of authority. In the typical federation, a formal ical decisions to the lowest practical level. The constitutional allocation of powers is made trouble with this definition is that it is based on between the central or federal authority and the a conceptual paradigm from the monarchic and provinces or states. Each level bears responsi- absolutist era, firmly anchored in the Westmin- bility for the way in which the earmarked pow- ster tradition in which the sovereignty of parlia- ers are exercised. Here, the principle of sub- ment or legislative supremacy is the dominant sidiarity plays a largely structural role insofar norm. as it is applied during the initial formulation of It implies, simply, that all power inherently the Constitution, at the time when it must be rests with the central authority, which may decided which powers are to be allocated to devolve some of this power to other levels of which level of government. government. The latter have no original or Where a constitution provides for concurrent inherent powers of their own. powers – that is, where both the federal and the Subsidiarity was not taken seriously as a provincial authority can exercise powers in principle in this process. There are a number of regard to the same matters – subsidiarity can possible reasons for this: possibly the notion of have a significant effect. This is the case in subsidiarity was propagated by parties that Germany, for example. were overtly in favour of a federation, some- thing that was anathema to the African National 1. SUBSIDIARITY AND THE SOUTH AFRICAN Congress. Anything that smacked of federation CONSTITUTION was therefore doomed from the outset. Second- Before the new constitutional dispensation ly, there may have been a natural suspicion of came into operation in 1994, one would have unknown, new concepts which could further had difficulty in arguing persuasively that there complicate an already complex negotiation was any room for the notion of subsidiarity in process. Finally, the idea may have been raised South African constitutional law. Parliament too early in the negotiation process. was sovereign and the political dispensation The question, however, is whether subsidiari- became increasingly centralised from the 1980s ty did find its way into the South African Con- onward – both in law and in practice. It was stitution in some shape or form. The answer therefore quintessentially contra-subsidiarity. depends on a number of factors: first, the inter- The same applied to the relationship between pretation to be given to certain provisions of the the state and the individual and between the 1993 and 1996 Constitutions; the second is state and society: ours was an excessively political and government practice; finally, the paternalistic society in which government – and judgements of the Constitutional Court must be more particularly central government – arrogat- examined to determine whether the 1996 Con- ed to itself to decide for everyone, both white stitution is understood as subsidiarity-friendly, and black, what was best for them. whether this is explicitly stated or not. Despite some attempts at nominal and struc- tural devolution (in the so-called independent 1.1 The Interim (1993) Constitution homelands, for example), one cannot help but There were some distinct pro-subsidiarity indi- conclude that the entire apartheid system was a cators in this Constitution. While it would serve denial of the principle of subsidiarity in the no purpose to discuss these in detail, I mention body politic. them as part of the process that eventually led The possibility of change was, however, cre- to the creation of the present (1996) Constitu- ated with the introduction of the new democrat- tion. ic order. At the time when the Interim Con- The Interim Constitution featured the Bill of stitution of 1993 was being written, voices Rights which emphasised fundamental rights

47 Carpenter for the first time in any South African Consti- which affected the status, functions and pow- tution. The repeated references to equality and ers of a local government had first to be pub- freedom pointed to a relationship of subsidiari- lished for comment. ty between state and individual. • Constitutional Principles (CPs) XIX to XXVI What is of greater importance in the present in Schedule 4 of the Constitution contained context, however, are the provisions that gov- the framework in accordance with which the erned the relations between the various levels final Constitution had to provide for national, of government, as well as some of the constitu- provincial and local government structures. tional principles included in Schedule 4 to the The phrases having a bearing on the principle Constitution. Four points are highlighted here: of subsidiarity stand out: “Concurrent and • It can be inferred from the wording that the exclusive powers” featured in CPs XIX, XX, 1993 Constitution signified a conscious rejec- XXI XXIII; “appropriate and sufficient leg- tion of the centrally managed Westminster islative and executive powers” in CP XX; model of former times. What was previously “legitimate provincial autonomy” in CP XX; known as the “central” level of government “the level at which decisions can most effec- was now the “national” level. The change of tively be taken” in CP XXI; and “where wording from “central” to “national” is hard- mutual cooperation is necessary or desirable” ly conclusive proof of a switch to a subsidiar- in CP XXII. ity approach; however, it is too conscious and It may be argued that the constitutional princi- calculated a change to be meaningless. Un- ples merely governed the division of powers fortunately, even under the 1996 Constitu- among the various levels of government and tion, this shift appears to have passed almost that they should be interpreted as value-free unnoticed in many respects. Not only do the wherever possible; in other words, that they fall less informed still refer to “central” govern- into the category of “everyday, mundane provi- ment, but many of those who should know sions” referred to by Van Dijkhorst J in Kalla v better are also guilty. Even the Constitutional The Master. Court referred to “central government issues” However, one must look at the way in which in a heading in The First Certification-case. they were dealt with by the Constitutional • Section 126 of the 1993 Constitution con- Court during the certification of the final tained provisions which were consonant with Constitution: first of all, the main reason why the notion of subsidiarity. To a large extent the Court declined to certify that the final the entire debate, once so heated, about Constitution was in accordance with the CPs whether South Africa is (or should become) a was that provincial powers had been attenuated; federation like Germany or the United States, secondly, it is clear that just like the rest of the is therefore now passé. The crucial issue is 1993 Constitution, the CPs had to be coloured the extent to which the provisions of section by the values of the new legal order based on 126 dealing with concurrent powers, permit- constitutionalism. The Constitution did not cre- ted a subsidiarity-oriented approach. ate a closed value system: it is therefore sug- • Provincial government and local government gested that a subsidiarity-oriented approach were given new status under the Constitution. may be seen as one of its values. Section 174 contained a number of expres- sions and prescripts which left the door open 1.2 The 1996 Constitution for an interpretation that is reconcilable with The so-called “final” Constitution of 1996 the subsidiarity principle. Local authorities leaves even more room for a subsidiarity-driven were referred to as autonomous, and it was interpretation and application than did the 1993 said that they had the right to govern them- Constitution. This becomes evident if we take selves. It was further said that Parliament and the first three points discussed above for pur- the provincial governments were not permit- poses of comparison. ted to interfere with the powers, functions and structures of a local authority in such a 1.2.i “National” government and “spheres” way that the fundamental/underlying status, of government purpose and character of local government The 1996 Constitution confirms the usage of would be impaired; and proposed legislation the 1993 Constitution in referring to “national”

48 Carpenter rather than “central” government. In fact, the primacy in terms of section 146(5) unless any use of “national” is extended even further. Not of the five factors (plus a number of subfactors) only is the reference to “national” government listed in section 146(2) and (3) is present. These throughout, but the term “national” legislation provisions read as follows: is also used instead of “parliamentary legisla- “(2) National legislation that applies uni- tion” or “Act of Parliament”, and the “national formly with regard to the country as a legislature” and the “national legislative pro- whole prevails over provincial legislation if cess” is used rather than “Parliament”. Provi- any of the following conditions is met: sion is made for the resolution of conflicts (a) The national legislation deals with a between “national” and provincial legislation. matter that cannot be regulated effectively But the 1996 Constitution goes even further. by legislation enacted by the respective Whereas the 1993 Constitution still referred to provinces individually. “levels of government”, these levels have now (b) The national legislation deals with a become “spheres” – a clear attempt to move matter that, to be dealt with effectively away from the traditional view that the different requires uniformity across the nation, and tiers of government are hierarchically ordered, the national legislation provides that uni- with a “centre” that is more powerful than the formity by establishing – second or intermediate tier, which in turn has (i) norms and standards; more power than the third tier. The use of the (ii) frameworks; or word “spheres” is manifestly aimed at en- (iii) national policies. trenching the constitutional status of provincial (c) The national legislation is necessary and, in particular, local government. If this for – principle is taken to its logical conclusion and (i) the maintenance of national security; is fully realised in practice, the 1996 Consti- (ii) the maintenance of economic unity; tution will, in principle, be one of the most sub- (iii) the protection of the common mar- sidiarity-friendly constitutions in the world. ket in respect of the mobility of goods, services, capital and labour; 1.2.ii The relationship between the national and (iv) the promotion of economic activi- provincial spheres ties across provincial boundaries; Because the final Constitution had to comply (v) the promotion of equal opportunity with the constitutional principles contained in or equal access to government services; the 1993 Constitution, the provisions of the or 1996 Constitution relating to the position of the (vi) the protection of the environment. provinces are, if anything, even more faithful to (3) National legislation prevails over the principle of subsidiarity than was section provincial legislation if the national legisla- 126 of the 1993 Constitution. The provinces tion is aimed at preventing unreasonable now have exclusive powers, which they did not action by a province that – have before, as well as concurrent powers (a) is prejudicial to the economic, health which must be exercised together with the or security interests of the country as a national sphere of government. Sections 146- whole; or 150 in Chapter 6 of the Constitution make even (b) impedes the implementation of nation- more detailed provision for the resolution of al economic policy.” conflicts between national and provincial legis- When interpreting any conflicting legislation, lation in concurrent matters than does the Ger- the court must give preference to any reason- man Constitution. Unfortunately the provisions able interpretation which eliminates the con- in question are not always models of clarity. flict. This is partly due to the way in which the con- There are other important provisions as well: stitutional principles were formulated. Further- Section 147(1) provides for the case where more, it was perhaps to be expected, given the national legislation and provincial constitutions fact that the CPs required a greater degree of conflict. It is clear that such a constitution does deconcentration than that with which most of not enjoy much greater status than ordinary the drafters of the Constitution were familiar. provincial legislation if it conflicts with nation- In broad terms, provincial legislation enjoys al legislation. This provision reads as follows:

49 Carpenter

“If there is a conflict between national legis- those of the Interim Constitution, are capable of lation and a provision of a provincial consti- a pro-subsidiarity interpretation here as well. tution with regard to – The first point to be made is that the status of (a) a matter concerning which this local government in South Africa is constitu- Constitution specifically requires or tionally entrenched as one of the three spheres envisages the enactment of national legis- of government. Section 151 confirms the con- lation, the national legislation prevails stitutional importance of local government. over the affected provision of the provin- Subsection (1) stipulates that municipalities cial constitution; must be instituted for the entire Republic; sub- (b) national legislative intervention in section (2) states that municipalities have leg- terms of section 44(2), the national legis- islative and executive powers which vest in the lation prevails over the provision of the municipal councils; subsection (3) provides that provincial constitution; or municipalities may take the initiative in the (c) a matter within a functional area listed management of local affairs in a particular in Schedule 4, section 146 applies as if community; but subsection (4) is the most the affected provision of the provincial important for present purposes: it prohibits the constitution were provincial legislation national government and provincial govern- referred to in that section.” ments from restricting the ability or right of National legislation may also enjoy preference municipalities to exercise their powers. This is to exclusive provincial legislation, provided the in sharp contrast to the position in the past, national legislation is necessary for the purpos- when local government was hierarchically dis- es of section 44(2), which reads thus: tinctly inferior to provincial authorities. “Parliament may intervene, by passing leg- Section 151 is reinforced by several other islation in accordance with section 76(1), provisions. For example, section 154(1) with regard to a matter falling within a requires that municipalities must be supported functional area listed in Schedule 5, when it by legislative and other measures by national is necessary – and provincial governments in their capacity to (a) to maintain national security; manage their own affairs; section 154(2) stipu- (b) to maintain economic unity; lates that all national and provincial draft legis- (c) to maintain essential national standards; lation which affects the status, institutions, (d) to establish minimum standards powers and functions of local authorities must required for the rendering of services; or be published for comment to enable interested (e) to prevent unreasonable action taken parties to make representations; section 155(7) by a province which is prejudicial to the gives the national government and provincial interests of another province or to the governments legislative and executive powers country as a whole.” to ensure that municipalities perform their func- In this case it is important that the national leg- tions effectively; and section 156(4) obliges the islation is adopted in accordance with the pro- national government and provincial govern- cedure prescribed by section 76(1). The Nation- ments to assign powers to municipalities if al Council of Provinces (NCOP), which is these powers can be most effectively exercised expressly enjoined by the Constitution to repre- at local level and if the municipalities in ques- sent provincial interests in the national sphere, tion have the administrative capacity. plays an important role in this process. Cognisance should also be taken of section 1.3 Cooperative government 100, which deals with national supervision over Chapter 3 of the 1996 Constitution provides the provincial administration: when a province fails cornerstones for cooperation between the dif- to or is unable to fulfil an executive obligation ferent spheres of government and organs of in terms of legislation or the Constitution, the state in South Africa. The chapter has only two national executive may intervene. Again the sections (40 and 41), but they are so value- NCOP plays a prominent role. laden that they justify continuous analysis and suggestions for practical application. The rea- 1.2.iii Local government son why they are of such importance for sub- The provisions of the 1996 Constitution, like sidiarity is that they completely undermine the

50 Carpenter historical centre-driven or centrifugal approach. tive of ensuring effective, transparent, account- The value-laden character of this chapter of the able and coherent government of the Republic Constitution is best illustrated with reference to as a whole. These objectives may seem to be the actual wording of section 41: value-free at first glance; in truth they represent “41(1) All spheres of government and all the profoundest values of the democratic state. organs of state within each sphere must – . . . 2. EVALUATION OF THE 1996 CONSTITUTION IN (e) respect the constitutional status, insti- TERMS OF THE PRINCIPLE OF SUBSIDIARITY tutions, powers and functions of govern- As mentioned, the Constitution seems to have ment in other spheres; been drafted with efficiency rather than sub- (f) not assume any power or function sidiarity in mind. If we look at CP XX(1), except those conferred on them in terms effective decision making appears to be the first of the Constitution; factor used to determine which power should be (g) exercise their powers and perform exercised by which sphere of government. This their functions in a manner that does not has raised the fear that the weight to be accord- encroach on the geographical, functional ed to efficacy may have pushed the “compet- or institutional integrity of government in ing” principle of subsidiarity into the back- another sphere; ground. Whether the two are mutually exclu- (h) cooperate with one another in mutual sive is, of course, debatable. Efficacy and sub- trust and good faith by – sidiarity may exclude one another, but need not (i) fostering friendly relations; do so. In a country such as South Africa, for (ii) assisting and supporting one example, efficiency and efficacy will depend on another; the extent to which provincial and local spheres (iii) informing one another of, and of government are enabled to meet their consti- consulting one another on matters of tutional obligations. common interest; It has already been emphasised that the (iv) coordinating their actions and Constitution abounds with indications that the legislation with one another; old traditional stratified three-tier system of a (v) adhering to agreed procedures; and central government at the top (and therefore the (vi) avoiding legal proceedings against strongest), a second provincial tier in the mid- one another. dle and a local tier (the weakest) at the bottom, This provision contains both “hard” and “soft” has been jettisoned for a model in which there phrases: among the “soft” phrases are the ones are three spheres of government, no one of referring to friendly relations, assistance and which is inherently stronger than the others. support, consultation and information, and The concept of “national” government does not avoiding legal proceedings. Among the “hard” connote the scope of the authority in the first phrases are those enjoining spheres of govern- place, but the geographical area in which the ment not to arrogate the powers of other power is exercised. The same holds good for spheres to themselves, not to impinge on the provincial and local government. Seen in this geographical, functional and institutional light, it is obvious that the national government integrity of other spheres, and so on. Of course, must have different kinds of powers to those of the word “integrity” is used here in its original the other spheres. Although this was not stated sense of “wholeness” and not in the modern in so many words, the Constitutional Court acquired sense of “honesty” or “probity”. appears to have acknowledged (in The First Subsection 1(h)(vi) is further shored up by Certification-case) that the national govern- subsection (3), which provides that an organ of ment’s right to interfere in the provincial sphere state involved in an intergovernmental dispute is limited: must make every reasonable effort to settle the “Any attempt by the national government to dispute by means of mechanisms and proce- intervene at an executive level for other pur- dures provided for that purpose, and must poses [than effective government] would be exhaust all of the remedies before it approaches inconsistent with [the 1996 Constitution] a court to resolve that dispute. and justiciable.” All of these provisions are part of the objec- The elements of subsidiarity are already evident

51 Carpenter here. The national government is not, as it was one-dimensional formulas: it is too complex for under a system of parliamentary sovereignty, a that. This is equally applicable to the principle primordial source and determinant of all power. of subsidiarity in its most elementary sense. Nowhere does the Constitution contain a pre- South Africa is no longer a classic example of a sumption of efficacy which operates in favour ; neither is it formally and struc- of the national government. It is true that Par- turally a federation. The democratic order has liament has a residual power to make laws about nevertheless acquired a fair sprinkling of feder- matters not covered by Schedules 4 and 5. al characteristics. As Dan Elazar said about the This does not mean, however, that only 1993 Constitution: Parliament can exercise such powers. Nothing “[I]t is explicitly not a federation and clear precludes Parliament from assigning some of national supremacy is specified. Yet at the those powers to a legislative authority in one of same time it is almost as clearly a federal the other spheres of government. Neither is arrangement in that the provinces are there anything that prohibits Parliament from anchored and constitutionally protected in adopting the legislation itself, and then leaving the document, as are their powers . . .” its implementation to the executives of the This is even more true of the present Constitu- other spheres of government. tion. The closely intertwined provisions of the As my colleague Dawid van Wyk puts it, an Constitution dealing with the relationship appreciation of subsidiarity is something that is between the three spheres of government leave not inborn, but has to be acquired, like good room for a presumptive power favouring the so- manners. It requires a conscious choice in called “minor” spheres, particularly where there favour of the “smaller sphere”. It need not be may be uncertainty about the interpretation of called subsidiarity; the name is really neither the scope of the powers. In most cases the here nor there. What it does mean is that the answer to the question of which sphere of gov- more powerful spheres of government will have ernment is clothed with authority will be found to make a point of empowering the smaller and in the words of the Constitution itself. weaker spheres – especially that of local gov- However, it may sometimes be necessary to ernment – so that the power can truly be placed determine who is the bearer of authority in a in the hands of the people. particular case. This is a political exercise in the There are already a number of encouraging first instance; only if the problem cannot be signs. One of the earlier ones was the Green solved by recourse to Chapter 3 procedures will Paper on Local Government and the proposals the courts be called upon to decide. It is sug- contained in it. A more recent example is the gested that both the politicians and the courts Intergovernmental Fiscal Relations Act 97 of should, when dealing with such an issue, make 1997. The stated aim of this law is to promote use of the leeway which the Constitution allows cooperation between the national, provincial and go for the subsidiarity option. In other and local spheres of government in fiscal, bud- words, the “smaller” sphere exercises the power getary and financial matters and to prescribe a unless it cannot or will not do so. But the process for determining the equitable sharing “smaller” sphere must participate fully in the and allocation of revenue raised nationally. The decision about the “cannot” or the “will not” as Act provides for the establishment of a Budget well. Council, composed of the Minister of Finance In South Africa there is a danger that, owing as Chair and the members of the Executive to the shortage of skills and infrastructure, there Council (MECs) for finance of each province. will be constant competition between the The purpose of the Council is to ensure consul- spheres of government. As a result of a number tation between the national and provincial gov- of factors, not least of which is prestige, the ernments regarding any fiscal, budgetary or national sphere is likely to come off best in financial matter affecting the provincial sphere; such a contest. This is precisely why the notion any proposed legislation or policy which has of subsidiarity is propagated so emphatically financial implications for any of the provinces; here. and anything relating to the financial manage- The forces operating within the modern state ment of the provinces or the monitoring of the cannot be described or regulated by means of above. A Local Government Budget Forum is

52 Carpenter also provided for. It consists of the Minister as whatever one chooses to call it – has a good Chair, the provincial MECs for finance, five chance of taking root in South Africa. It must representatives of the national organisation not be forgotten, however, that subsidiarity recognised in terms of the Organised Local means much more than power; it also entails Government Act of 1997, and one representa- responsibility. tive of each provincial organisation recognised It is therefore vitally important that the in terms of the above Act. This body’s mandate “smaller” spheres of government should not see is to consult about revenue sharing, the role of the national government and the national fiscus, the Financial and Fiscal Commission and a in particular, as a milch cow, or perhaps more Division of Revenue Bill (in terms of s 214(1) accurately, as the modern equivalent of the of the Constitution). widow’s cruse, with an inexhaustible supply of It is clear both from the attitude of the funds and resources. Conversely, of course, nor Constitutional Court to provincial and local should the national government use the purse- powers in The First Certification-case, and strings to exercise control over the other from the legislation which has emanated from spheres of government in a manner which the national legislature, that subsidiarity – or undermines the values of subsidiarity.

53 The Other Sphere of Government: South African Provincial and Local Structures in Practice

Mathews Phosa

INTRODUCTION The principles of cooperative government Before South Africa’s first democratic elec- and governance put the national interest first, tions in 1994, the country was made up of a and require a fundamental commitment from complex combination of four provinces, four each sphere of government to play an establish- “independent states” and six “self-governing ment role in the creation of a culture of cooper- states”. ation, national unity and mutual trust. It is important to realise that prior to 1994, South Africa had a very centralised govern- 2. FORUMS ment arrangement that was in line with the phi- To effect this arrangement, a number of institu- losophy of the apartheid government, whose tions have been created to give both politicians overriding policy was ultimate control. In con- and administrators the necessary forums to dis- trast, the philosophy of the African National cuss relevant issues. Congress (ANC) government is to put the peo- • The National Council of Provinces (NCOP) ple at the centre of government and gover- has replaced the Senate. The NCOP brings nance. The ANC believes that if this new together representatives from all nine pro- democracy is to succeed, the people themselves vinces to ensure that provinces are involved must work for it; the creation of provincial and in the legislative process. local governments is informed by that under- • The Intergovernmental Forum (IGF) is one standing. of the biggest forums and is chaired by the Deputy President. Ministers, premiers and 1. RESHAPING AND STREAMLINING their directors-general meet here to discuss It is essential that this inherited complex and all issues involving government at all levels. chaotic situation is reshaped into a streamlined Local government is represented here by democratically based government. South Africa Logam. is now divided into nine provincial structures, • Minmecs are where national ministers and each given a degree of political authority. the relevant provincial MECs (members of Legislatures and executive councils have been the executive council) meet to formulate pol- established and premiers appointed. icy and discuss any other related issues. Chapter 3 of the South African Constitution, • The Premiers’ Forum is where the premiers 1996, demands that the three spheres for gov- of the nine provinces meet to discuss com- ernment (national, provincial and local) coop- mon issues, some of which are taken up to erate and coordinate their activities to ensure national government level. Cooperation the creation of a truly non-racial, non-sexist, between and among the provinces is dis- democratic and just society. All actions by cussed here, as well as issues affecting pre- these spheres of government should therefore miers themselves. aim to work towards the attainment of these • The Forum of South African Directors- noble ideals. General (Fosad) provides directors-general

55 Phosa

from national and provincial governments both vertically and horizontally. At present, with a forum to discuss issues that are rele- focus has been mainly between national and vant to and cut across the departments and provincial governments, and to a lesser extent provinces. with local government. Horizontal coopera- These are some of the institutions created to tion has been minimal. It is important to ensure coordination in policy formulation and strengthen these relationships since much implementation. The intention is to make sure experience can be shared. A simple example that policies emanating from different levels of the lack of horizontal cooperation is that and spheres of government reinforce, rather each province sends its own missions over- than negate, each other. seas, with each learning similar things: the Government is pleased with the progress that experience and knowledge gained is not has been made in this regard over a period of shared among the provinces and local gov- less than five years, believing strongly that a ernments. The provinces also need to know unique and firm foundation for participatory about each other’s developmental plans. For democracy has been laid. But much still needs example, it makes no sense to have two big to be done before one can call the system per- hospitals on either side of a provincial bor- fect. Government agrees that it is still too early der, while millions of people elsewhere have to legislate for cooperative governance; for no hospitals at all. Gauteng and the Northern now, it is comfortable with an evolutionary- Province have begun offering services to type process. each other on an agency basis: we are, after all, all South Africans. 3. CHALLENGES STILL FACED • In government and progressive circles, local Many challenges still exist for government at government is called the hands and feet of all levels. The following still needs attention the Reconstruction and Development Pro- and fine-tuning: gramme (RDP). This shows the importance • Although competencies are divided among attached to this sphere of government. In national, provincial and local governments, it reality, however, local government remains is important for all three spheres to realise marginalised, separated from mainstream that they serve the same customer, the South cooperative governance and under-resourced. African citizen. Situations still exist whereby Except for Logam – which is the structure national government will, for example, representing local government at the IGF – implement a project without understanding there is no other local government represen- the plans of provincial and local govern- tation at national or provincial level. At a ments. This creates confusion and sometimes recent councillors’ forum, it was suggested even duplication and wastage. Provinces are that an intergovernmental forum be created also guilty of this. We need to realise that all between provincial and local governments as development is, in the end, local. a means of strengthening cooperative gover- • Although each sphere of government wants nance. its own key performance indicators, there is a • In provinces such as Mpumalanga, KwaZulu- need for a set of indicators that tell whether Natal, the Northern Province and Eastern government at all three spheres is on track as Cape, more than one centre of power exists at far as policy and Gear (Growth, Employment local level – namely, democratic local gov- and Redistribution) targets are concerned and ernment and traditional leadership structures. according to the requirement of global com- It is vital that coordination and cooperation petition. This will help us to detect difficul- be established between these structures if ties before they become problems. transformation and delivery is to succeed at • There are still too many government versus this level. government court cases: this runs against the • Structures that deal with intergovernmental letter and spirit of cooperative governance. A relations – such as the IGF and the Premiers’ big challenge, therefore, is for the various Forum – should be restructured and refined at governments to learn to deal with problems horizontal as well as vertical levels of gov- without resorting to the courts. ernment, as relates to policy making and • Cooperative governance should be effective implementation.

56 Phosa

• Provincial governments should act according the people most directly. It is therefore vital to those policies agreed upon by intergovern- that this sphere of government applies the prin- mental institutions and structures so that ciples of cooperative governance. there is unity of purpose and rapid progress. Local government is the vehicle for develop- • Local government structures should be ment; it is through local government structures streamlined to ensure that this grassroots that democracy is brought into the homes of level of government is emersed in the agenda each and every South African. We therefore of cooperation and cooperative governance. need to strengthen this sector and to equip it • Cooperation is needed at all levels of govern- with the necessary skills and knowledge to ment, i.e. among all three spheres as well as serve the people. We need to ensure there are their different departments and structures. dedicated and devoted people to lead communi- • Further restructuring of intergovernmental ties towards prosperity. relations as well as capacity development and Local government structures provide democ- creation is needed at all levels of govern- ratic and accountable government to local com- ment. munities and should ensure the delivery of ser- • Streamlining and synergy of structures, plans vices in a sustainable manner, promoting social and budgets is required. and economic development in these communi- • Creative ways of financing infrastructure pro- ties. jects is needed. Since 1994, there has been Local government structures should also much success with public-private partner- encourage community involvement in the ships. An example is the Maputo Develop- building of a better future for all. ment Corridor project which has brought I believe that government will succeed in much growth and development to that region. bringing water, housing and employment to all South Africans. If we can master the process CONCLUSION and art of cooperative governance, we shall Local government is the structure that serves surely emerge victorious.

57 Relations Between Subnational and Local Governments, Structured by Subnational Constitutions*

Jörn Ipsen

INTRODUCTION ernment (Selbstverwaltung als Verwaltungs- The point of departure for any discussion on modus) and the duties or functions of self- local government law in Germany is the Basic government (Selbstverwaltungsaufgaben). This Law. Art. 28(2) Grundgesetz (abbr. GG) stipu- distinction is based on the interpretation of the lates that:1 Basic Law and not on a legal theoretic position. “The municipalities [i.e. local governments] The guarantee expressed by the first sentence shall be guaranteed the right to manage all of art. 28(2) GG stipulates that “all the affairs the affairs of the local community on their of the local community” – thereby referring to own responsibility within the limits set by their duties or functions – have to be regulated law. Within the framework of their statuto- as “their own responsibility” – thus determin- ry functions the associations of municipali- ing the administrative mode.2 ties likewise have the right of self-govern- I suggest that we first have a closer look at ment in accordance with the law. The right local self-government as an administrative of self-government shall include responsi- mode. In older literature3 on the subject, local bility for financial matters. The local gov- self-government is usually divided into five ernments have the power to levy trade taxes powers (i.e. the so-called “fünf Hoheiten”), according to the rates for assessment deter- namely: mined by them.” • management powers (Organisationshoheit) All the issues I wish to address are covered in • the power to appoint staff (Personalhoheit) the answers to the following questions: • the power to make by-laws (Satzungshoheit) • What constitutes local government? • the power to administer their own finances • What are the duties of local government? (Finanzhoheit) and • From which sources are local governments • zoning and planning powers (Planungsho- financed? heit). • Which control mechanisms exist with regard These five powers are interrelated and form to local government activities? segments of local self-government as an • Which legal remedies are available to local administrative mode. In other words, they can- governments, should their right of self-gov- not be separated from each other. ernment be violated? The management powers4 refer to the com- petency of local authorities to conduct their 1. LOCAL SELF-GOVERNMENT AND DUTIES local affairs freely within the boundaries of ASSOCIATED WITH IT what is statutorily permitted. They may, for The first two issues we are going to address are example, decide to create or close down certain based on a thesis implicit to the wording of the sections, departments (Dezernate) or offices constitutional guarantee. With regard to local (Ämter) of the local authority. The scope of self-government, we should distinguish their competencies in this regard is narrowed between the administrative mode of self-gov- down insofar as subnational statutes (Länder-

59 Ipsen gesetze) determine the organs through which The Federal Constitutional Court (Bundesver- the local authorities should act. However, with- fassungsgericht, abbr. BVerfG) defined affairs in this statutory framework the local authorities of the local community as:7 are free to manage their local affairs. “those needs and interests which are rooted The power to appoint their own staff5 in the local community or have a specific encompasses the responsibility to fill positions relation to them and which are shared by the independently and to decide who they want to people living in that (political) community appoint to specific positions. The local and dis- in that it directly concerns the common trict authorities therefore act in their capacity as basis of their living conditions.” public-law employers (Anstellungskörper- As can be expected there are often legal dis- schaften) when they appoint civil servants and putes on the issue whether a specific matter other employees (Dienstherrnfähigkeit). should be regarded as a “local affair” or not. The power to promulgate by-laws is the Adjudication on garbage removal and waste typical instrument for local authorities to regu- recycling as well as the provision of energy late matters falling exclusively within their (electricity) played a significant role in devel- sphere of competency. The autonomy of local oping criteria for classifying matters as belong- governments to make by-laws is based directly ing to the ambit of “local affairs”. In order to on the constitutional guarantee regarding local illustrate how wide the scope of local affairs is, self-government. Unlike other administrative I would like to cite art. 83(1) of the Bavarian bodies, they are not dependent on an enabling Constitution:8 statute to confer such powers upon them. In “The following duties fall within the scope other words, this is an original power and not a of responsibility of the local governments delegated one. However, the procedure relating (art.11(2)): the administration of property to the promulgation of by-laws has been regu- and assets of the local authority as well as lated in terms of subnational legislation. the administration of public enterprises; fur- The power to administer their own thermore, the municipal transport system, finances includes the responsibility of local roads and road construction; the provision authorities to realise their own income and to of services such as water, electricity and spend it in accordance with their budget. Art. gas; institutions to secure an adequate sup- 28(2) GG has recently been amended6 to the ply of food; local planning, housing and effect that local authorities are autonomous housing supervision; local police services, with regard to their finances, in order to clarify fire protection and local cultural life; prima- this point explicitly. ry schools, vocational education and adult The powers (Hoheiten) which have been dis- education; guardianship and social security; cussed thus far are just segments of local self- local health services; marriage and maternal government in the sense of an administrative guidance as well as nurseries; school mode. The planning and zoning powers of local hygiene and the physical development of governments distinguish themselves from these juveniles; public baths; cemeteries; up- powers in that they are not concerned with the keeping of public buildings and memorials mode of administration but can be characterised of historic value.” as duties of the local governments. These duties This provision of the Bavarian Constitution relate to “all the affairs of the local communi- offers me the opportunity to explain the rela- ty”. Of special interest in this regard is develop- tionship between art. 28(2) of the Basic Law ment planning (Bauleitplanung) in terms of and the provisions guaranteeing self-govern- which the utilisation of building projects within ment in the various constitutions of the Länder, the area of the local government is decided on. since they are the focal point of this conference. Development planning is an obvious example To start, the mode of self-government as well of such administrative duties of local self-gov- as the autonomous duties associated with it are ernment. constitutionally guaranteed. Moreover, in the With regard to other affairs it is not always case of transgression of this guarantee a consti- that easy to distinguish between those with a tutional lawsuit may be filed at the Federal local (i.e. örtliche Angelegenheiten) or broader Constitutional Court. This constitutional guar- (i.e. überörtliche Angelegenheiten) dimension. antee also sets a minimum standard with regard

60 Ipsen to the local self-government guarantees con- obligation to fulfil. Whereas local authorities tained in the various constitutions of the Länd- have the competency to relieve themselves of er. Put differently, the self-government guaran- some of their voluntary functions (freiwillige tees in the Länder constitutions may go further Selbstverwal-tungsaufgaben) – for instance than the guarantee embodied in the federal con- public facilities such as public baths, concert stitution but may not drop below its standard.9 halls or adult education – they may not do so This relation between the Basic Law and the with regard with the compulsory duties – e.g. subnational constitutions gained in importance public schools and social welfare on a local lately. Under the influence of Justice Böcken- level. The dilemma facing local authorities is förde, the Federal Constitutional Court inter- that these compulsory duties which they have to preted art. 28(2) GG in a manner which empha- execute absorb the lion’s share of their bud- sised the function of this provision as an institu- getary means. Consequently, hardly any money tional guarantee.10 The court placed less remains to finance local affairs which they pro- emphasis at its function of securing public-law vide on a voluntary basis.11 rights (subjektive Rechte) of local authorities The compulsory duties which form part of vis-à-vis the powers that be. In a more recent the local self-government duties must be distin- decision, however, the Constitutional Court guished from those duties which have been (Staatsgerichtshof) of Lower Saxony held that additionally transferred to the local authorities the rule aimed at curbing the excesses of state (übertragene Aufgaben). Some subnational authority – the so-called Übermaßverbot – also constitutions refer to the latter as directives applies to local authorities in order to secure (Pflichtaufgaben nach Weisung).12 their constitutional rights. A bone of contention is whether the functions The distinction between self-government as of the local authorities should be regarded in a an administrative mode, on the one hand, and monistic way, thereby regarding both the tradi- the functions exercised in the course of local tional local affairs and the transferred duties in self-government, on the other, offers a key to an undifferentiated manner as “local affairs”, or the understanding of the constitutions of the whether they should be approached in a dualis- Länder which likewise distinguish between tic manner which clearly distinguishes between these two forms. these two categories of functions. This issue To recapitulate, the Basic Law as well as the has not yet been resolved. For practical reasons subnational (Länder) constitutions not only I shall proceed from the perspective which has guarantee local self-government as an adminis- been endorsed by most of the Länder constitu- trative mode but also as a set of functions tions, namely that the duties which have been which they may exercise autonomously. Fur- additionally transferred to the local authorities thermore, the constitutional guarantee of art. should be distinguished from the traditional 28(2) GG has the effect that similar guarantees local affairs, thereby regarding the system to be in the Länder constitutions are bound to guar- of a dualistic nature.13 antee at least the same degree of self-govern- The matters which are transferred (Auftrag- ment; obviously they may go beyond that level sangelegenheiten) to the local authorities are of protection and guarantee an even greater state duties and are therefore in principle also degree of local self-government. executed by state authorities. However, this Strange as it may sound, the constitutional would lead to a duplication of administrative guarantees with regard to these local self-gov- activities: state administrative bodies would ernment functions became less significant dur- then exist parallel to those of the local authori- ing the past couple of years, which have been ties should the latter indeed execute only the marked by a serious financial crisis. The local functions connected with their local affairs. authorities no longer try to secure functions Such a duplication of administrative bodies falling within their competency; instead they would obviously be uneconomical. The transfer are eager to get rid of them! In this body of of state duties to local authorities has a long tra- local affairs, the so-called compulsory duties dition in Germany.14 Insofar as it does not – by (Pflichtaufgaben) are of particular importance. way of exception – concern the so-called “bor- This category of functions refers to the duties rowing of an organ” (Organleihe), the local which the local authorities are under a statutory authority does not become a state authority due

61 Ipsen to the fact that it exercises duties on behalf of a authorities are entitled to an overall percentage state authority.15 of the total revenue from joint taxes which The identity of the local authority is not accrue to the Länder (art. 106(7) GG). affected in the process and the difference in the The income from the latter source together nature of these functions which are executed with revenue generated from subnational taxes does not come to the fore in practice. forms the basis of a financial compensation (i.e. Such functions which are usually transferred the so-called Ausgleichsmasse für den kommu- in most of the Länder include that of danger (or nalen Finanzausgleich).17 The individual hazard) prevention, building inspection, trade Länder are obliged to compensate the local supervision, traffic regulation, health and vet- communities (i.e. district councils and local erinarian matters, nature conservation and envi- authorities) due to differences in their financial ronmental protection.16 Since these functions strength. This is stipulated by the Basic Law as have over many years always been executed by well as the various Länder constitutions. In the local authorities along with the administra- other words, they have the obligation to put the tion of their local affairs, the administration is local authorities in a financial position to exe- often not even aware that these are delegated cute their duties. It would hardly come as a sur- functions. In 1997 the government of Lower prise to you that the compensation which has to Saxony – the federal state in which the be paid to local authorities has been the most University of Osnabrück is situated – for the dominant theme of the past few years. It is no first time published a list with all the functions exaggeration to say that the local authorities that have been transferred to local governments. suffer from a financial crisis. This can be sub- Previously, nobody knew exactly which duties scribed to the following mechanism: had actually been transferred to the local gov- The districts (Landkreise) and the ernments. cities which have the same legal status as dis- The process of transferring functions from tricts (kreisfreie Städte) are responsible for the subnational administrations to the local social welfare aid at a local level. Such social governments has not been concluded yet and welfare aid falls within the ambit of self-gov- the current administrative reforms seem to be ernment duties even though the amount of aid providing new impulses to the process. I would to be paid is determined by a federal statute. even stick out my neck to predict that in due This is a good example of an instance where the course the only remaining state administrative federal legislature statutorily specifies a duty to bodies will be the financial authorities and the be executed by the local authorities, but leaves police force. This underscores the increasing the financing of it to the Länder. The dilemma importance of the local authorities, particularly of the district authorities is that in contrast with with regard to their function of executing dele- the duties which the Länder execute on behalf gated state powers (originär staatlichen of the federal government, there is no constitu- Aufgaben). tional link in this case between the duty and its financing from a federal perspective.18 Conse- 2. FINANCIAL INDEPENDENCE quently, the connecting principle (Konnexitäts- The question relating to the financing of local prinzip) which has been formulated in art. self-government certainly addresses the single 104a(2) GG19 does not apply. Due to the limit- most important aspect of local government. At ed resources which could generate revenue the outset I briefly indicated that the Basic Law from taxes levied by the local authorities them- has been amended to the effect that the local selves, they are in a dilemma. As a result of dif- authorities’ “responsibility for financial mat- ficult financial times and increasing unemploy- ters” has been guaranteed at a constitutional ment, the expenditures for social welfare aid level. The power to levy trade taxes (i.e. a escalate whereas the available revenue to buffer wirtschaftskraftbezogene Steuerquelle) forms the costs simultaneously sinks. Consequently, part of the basis of their financial indepen- they really do depend on financial compensa- dence. Apart from that, local authorities have tion (Finanzausgleich) to survive. been allotted a specific share of the revenue This brief excursus shows that even the from income tax and general sales tax (art. financing of traditional self-government duties 106(5) and (5a) GG). Furthermore, local is a highly complex matter. The financing of

62 Ipsen the delegated duties is a matter on another within the limits set by law”. In other words, plane with its own difficulties and should be the Basic Law is explicit about the fact that the clearly distinguished from the expenditures for local authorities are autonomous in managing these self-government duties. their affairs. The Länder constitutions contain From the preceding discussion it became similar provision to this effect. The only kind of clear that the financing of delegated duties is control which could be exercised by the Länder usually also regulated in terms of other provi- over the local authorities under these circum- sions than those dealing with ordinary self-gov- stances is so-called “legal supervision”. ernment duties. The Länder constitutions usual- In principle, state supervision over local ly provide that when duties are delegated to authority matters takes on the form of legal local authorities this has to be linked to with supervision (Rechtsaufsicht).22 This means that adequate financial means to cover the expenses the local authorities should be administered in (referred to as a “connecting principle”). Art. conformity with the statutes which apply to 57(4) of the Constitution of Lower Saxony them. As a general rule, control may be exer- illustrates the point well. A free translation of cised with regard to the legality of administra- the provision is as follows:20 tive measures, not with regard to the suitability “State duties may statutorily be delegated to thereof. However, in practical terms it is often the local authorities and districts by way of very difficult to clearly distinguish between the a directive provided that proper arrange- legality and suitability of administrative mea- ments are made to cover the expenses for sures. Particularly in the field of budgetary law, executing such delegated duties.” the legality of measures could hardly be sepa- The interesting question from a constitutional rated from the suitability of such measures. perspective is whether this provision foresees a In practice these control mechanisms are special form of compensation over and above therefore usually invoked in a very generous the tax-sharing provision which is dependent way not to obstruct the decision-making upon the amount of revenue generated for pur- process of local authorities or to impede their poses of financing local authority functions (i.e. willingness to assume responsibility for local the kommunalen Finanzausgleich). The Con- affairs. Control mechanisms which could be stitutional Court of Lower Saxony affirmed this invoked vis-à-vis local authorities include point of view.21 The landmark decision is of objections (Beanstandungen), the substitution importance insofar as it will certainly play a of measures taken by the local authorities role with regard to the interpretation of other (Ersatzvornahmen) and the appointment of a Länder constitutions as well. The dualistic representative (Bestellung eines Beauftragten). nature of duties correlates with a duality of All these control mechanisms are administra- financing the respective duties. A distinction is tive acts and the local authorities may take legal drawn between compensation with regard to steps against such measures. ordinary self-government duties which should In contrast to the ordinary local self-govern- be financed from the revenue of taxes levied by ment which is only subject to legal supervision, the local authorities (finanzkraftabhängige the delegated duties are subject to administrative Zahlungen) and compensation with regard to supervision (Fachaufsicht)23 which includes delegated duties which do not depend on their control over both the legality and suitability of financial strength (finanzkraftunabhängige measures. In this regard a relationship of subor- Zahlungen). dination and control exists between the state authorities and the local government authorities; 3. CONTROL MECHANISMS the latter are bound to instructions given by the The dualistic nature of local government duties state authorities. Since the delegated duties are also correlates with a dualistic supervisory sys- duties which are originally attributed to the tem, which brings us to the next point. Which state, the responsibility to execute the duties control mechanisms exist with regard to local (Wahrnehmungskompetenz) and the competency government duties? to exercise control over the measures (Sachkom- In terms of art. 28(2) 1st sentence GG, the petenz) are split. The right of self-government management of their affairs by the local author- by the local authorities is also not affected by ities takes place “on their own responsibility such directives. However, should the delegated

63 Ipsen duties not be financed sufficiently, the self-gov- full-time basis to promote equal treatment of ernment duties are obviously directly affected females (hauptamtliche Frauenbeauftragte). due to the fact that there is only a single budget Many local authorities immediately submitted a at the disposal of the districts and the local constitutional complaint against this statutory authorities for these purposes. Against this provision because they regarded it as a viola- background the constitutional courts of the tion of their right of self-government. Länder held that an under-financing of delegat- The only option open to the local government ed duties is unconstitutional. authorities in Schleswig-Holstein was to submit a constitutional complaint before the Federal 4. LEGAL REMEDIES Constitutional Court on the basis that their con- The final issue which needs attention is the pos- stitutionally guaranteed right of self-govern- sibility of submitting a constitutional complaint ment has been infringed. The Constitutional to the Constitutional Court should the local Court rejected the complaint with the argument authorities’ right of self-government be violat- that the institutional guarantee of self-govern- ed. This is regulated in terms of art. 93(1) no. ment in terms of art. 28(2) GG has not been 4b GG which stipulates that:24 affected. “The Federal Constitutional Court shall rule The local government authorities in Lower . . . Saxony submitted their complaint based on the 4(b) on constitutional complaints by constitutional guarantee of local self-govern- municipalities or associations of munici- ment in the Constitution of Lower Saxony to palities alleging violation of their self- their Constitutional Court. In this case the deci- government under Article 28 by a (feder- sion was totally different. The Constitutional al) law; in case of violation by a Land law Court of Lower Saxony held that this subna- [i.e. a statute of one of the Länder], how- tional statute was unconstitutional insofar as ever, only where a complaint cannot be one could not reasonably expect local authori- lodged with the Land constitutional ties with less than 20 000 inhabitants to appoint court.” a full-time representative to promote equal Such a complaint about the unconstitutionality treatment of females. The Court concluded that of subnational legislation (Landesgesetze) may the local authorities may rightly complain about only be submitted to the Federal Constitutional the excesses of state authority in this instance.25 Court if there is no constitutional court in that This judgement in Lower Saxony is signifi- specific Land or when the subnational legisla- cant insofar as it heralds a new age in which the tion does not make provision for a constitution- self-government guarantee in the Länder con- al complaint regarding local self-government stitutions and constitutional complaints based matters. The only federal state where this is still upon the violation of local self-government the case is Schleswig-Holstein which does not clauses on a subnational level have developed have an own constitutional court. an own profile and became independent of fed- Against the background of the parallel exis- eral constitutional law in this regard. tence of constitutional complaints to either the From a German perspective, the research Federal Constitutional Court or the constitu- done by the Centre for State Constitutional tional courts of the Länder, I would like to Studies at Rutgers University and the VerLoren sketch an extraordinary legal constellation. In van Themaat Centre for Public Law Studies at both Schleswig-Holstein and Lower Saxony, the University of South Africa is of great similar statutes have been adopted which direct importance. In Germany, a renaissance of sub- local authorities to appoint representatives on a national law can also be observed.

64 Ipsen

ENDNOTES

* The author wishes to express his thanks to Interessen, die in der örtlichen Gemein- Dr Loammi Wolf who translated this arti- schaft wurzeln oder auf sie einen spezi- cle into English. fischen Bezug haben, die also den 1) Official Translation (revised and updated Gemeindeeinwohnern gerade als edition of November 1994) of the Press solchen gemeinsam sind, indem sie das and Information Office of the Federal Zusammenleben und -wohnen der Government of Germany. The original Menschen in der (politischen) Gemeinde German text is as follows: betreffen.” “Den Gemeinden muß das Recht 8) The German Text of art. 83(1) of the gewährleistet sein, alle Angelegenheiten Bavarian Constitution is as follows: der örtlichen Gemeinschaft im Rahmen “In den eigenen Wirkungskreis der der Gesetze in eigener Verantwortung Gemeinden (Art. 11 Abs. 2) fallen ins- zu regeln. Auch die Gemeindeverbände besonders die Verwaltung des Gemein- haben im Rahmen ihres gesetzlichen devermögens und der Gemeindebe- Aufgabenbereiches nach Maßgabe der triebe; der örtliche Verkehr nebst Gesetze das Recht der Selbstverwaltung. Straßen- und Wegebau; die Versorgung Die Gewährleistung der Selbstver- der Bevölkerung mit Wasser, Licht, Gas waltung umfaßt auch die Grundlagen und elektrischer Kraft; Einrichtungen der finanziellen Eigenverantwortung; zu zur Sicherung der Ernährung; Orts- diesen Grundlagen gehört eine den planung, Wohnungsbau und Wohnung- Gemeinden mit Hebesatzrecht zuste- saufsicht; örtliche Polizei, Feuerschutz; hende wirtschaftskraftbezogene örtliche Kulturpflege; Volks- und Steuerquelle.” Berufsschulwesen und Erwachsenen- The last sentence was inserted at a later bildung; Vormundschaftswesen und stage and has not yet been taken up in the Wohlfahrtspflege; örtliches Gesund- official translation; it has therefore been heitswesen; Ehe- und Mütterberatung translated freely. sowie Säuglingspflege; Schulhygiene 2) Cf. J. Ipsen, “Schutzbereich der Selbstver- und körperliche Ertüchtigung der waltungsgarantie und Einwirkungsmög- Jugend; öffentliche Bäder; Toten- lichkeiten des Gesetzgebers”, ZG 1994, p. bestattung; Erhaltung ortsgeschichtlich- 201 seqq. er Denkmäler und Bauten.” 3) Cf. K. Stern, Staatsrecht vol. 1., 1st ed. 9) Cf. E. Schmidt-Aßmann, “Kommunal- 1977, p. 310 seq.; E. Schmidt-Aßmann, recht”, in: E. Schmidt-Aßmann (ed.), Be- “Kommunalrecht”, in: E. Schmidt- sonderes Verwaltungsrecht, 10th edition, Aßmann (ed.), Besonderes Verwaltungs- 1995, p. 14; J. Ipsen, Niedersächsisches recht, 10th ed. 1995, p. 21 seqq.; M. Kommunalrecht, 2nd edition, 1999, note 3. Nierhaus, in: Sachs ( ed. ), Grundgesetz- 10) Cf. BverfGE 79, 127 (143 seqq.). Kommentar, 2nd ed. 1999, Art. 28, note 11) See F. Schoch, “Finanzverantwortung 44; J. Ipsen, Niedersächsisches beim kommunalen Verwaltungsvollzug Kommunalrecht, 2nd ed. 1999, note 95. bundes- und landesrechtlich veranlaßter 4) For fundamental information see: E. Ausgaben”, ZG 1994, p. 246 seqq. Schmidt-Jortzig, Kommunale Organisa- 12) For Lower Saxony see: Art. 57 sec. 4 of tionshoheit, 1979, p. 33 seqq. the Nierdersächsische Verfassung (NV), 5) For definition see: BverfGE 17, 172 § 5 sec. 1 of the Nierdersächsische Ge- (p.182). meindeordnung (NGO) and § 4 sec. 1, 6) BGBl. I, 1994, p. 3146. sent. 1 of the Nierdersächsische Land- 7) BVerfGE 79, 127 (151 seq.), (decision of kreisordnung (NLO). the Federal Constitutional Court of 13) Cf. T. Elstner, in: Korte/Rebe, Verfassung 23.11.1988) The original German citation und Verwaltung des Landes Nieder- is as follows: sachsen, p. 372 seqq., E. Schmidt-Jortzig. “. . . diejenigen Bedürfnisse und Kommunalrecht, note 332; E. Schmidt-

65 Ipsen

Aßmann, in (ib. ed.), Besonderes Verwalt- 20) The original German text of the provision ungsrecht, p. 95. is as follows: 14) See E. R. Huber, Die Deutsche Verfas- “Den Gemeinden und Landkreisen . . . sungsgeschichte seit 1789, vol. 1, 2nd ed. können durch Gesetz staatliche 1967, p. 175 seq; O. Gönnewein, Gemein- Aufgaben zur Erfüllung nach Weisung derecht, p. 86. übertragen werden, wenn Bestimmun- 15) Cf. J. Ipsen, Kommunalrecht, 2nd ed. gen über die Deckung der Kosten 1999, note 164. getroffen werden.” 16) For further details see J. Ipsen, Kommun- 21) Nds. StGH, Nds.VBl. 1995, 225 seqq.; alrecht, 2nd ed. 1999, note 170 seqq. Nds. VBl. 1998, 43 seqq. 17) For further details on the Finanzausgleich 22) Cf. J. Ipsen, Kommunalrecht, note 821 see: F. Schoch, Verfassungsrechtlicher seqq. with further references. Schutz der kommunalen Finanzautonomie, 23) Cf. J. Ipsen, Kommunalrecht, note 842 1997; H.-G. Henneke, Die Kommunen in seqq.; E. Schmidt-Jortzig, Kommunal- der Finanzverfassung des Bundes und der recht, 1987, note 555 seqq. Länder, 2nd ed., 1998; M. Inhester, 24) The original German text of the provision Kommunaler Finanzausgleich im Rahmen is as follows: der Staatsverfassung, 1998; J. Ipsen (ed.), Das Bundesverfassungsgericht entschei- Kommunale Aufgabenerfüllung im det: “über Verfassungsbeschwerden von Zeichen der Finanzkrise, 1995. Gemeinden und Gemeindeverbänden 18) For further details on this subject see: F. wegen Verletzung des Rechts auf Schoch, ZG 1994, p. 246 seqq. Selbstverwaltung nach Artikel 28 durch 19) The official English translation of art. ein Gesetz, bei Landesgesetzen jedoch 104a(2) GG is as follows: nur, soweit nicht Beschwerde beim “Where the Länder act for the Landesverfassungsgericht erhoben wer- Federation the latter shall finance the den kann.” resulting expenditure.” 25) Nds. StGH, Nds. VBl. 1996, 87 seqq.

66 The New Judicial Federalism in the United States: Expansive State Constitutional Rights Decisions

Robert Williams

INTRODUCTION they are required to enforce as a matter of fed- Although universal rights seem to be the natur- eral law. This makes for a fairly complex legal al order, independent state constitutions offer system, but it is one which provides a double opportunities to entrench certain rights – at source of protection for the individual rights of least in some places – when the nation or its US citizens. The American system of dual fed- highest court cannot agree on applying these eral and state courts may seem to be a neces- rights. We have already seen signs of this with sary ingredient for such an expansive state con- regard to privacy, victims’ rights, women’s stitutionalism, but the American lessons are rel- rights and environmental rights provisions in evant even in federal systems which do not some state constitutions. In this way, states can have separate state courts. also serve as laboratories for rights experimen- Interestingly, it was the late William J. Bren- tation. nan, Jr. who, as a Justice on the US Supreme The new judicial federalism may also have Court, emphasised this double source of protec- implications for emerging world- tion in his famous 1977 Harvard Law Review wide. Often, ethnic, religious and linguistic article.4 Brennan, a former New Jersey State hostilities preclude consensus on common Supreme Court Justice in the 1950s, called on rights. However, entrenching even a few com- state courts to be more aware of rights under mon rights in the national constitution is a step their state constitutions because his own US in the right direction that can foster the trust Supreme Court was becoming more conserva- needed to break down barriers to the recogni- tive and less protective of individual rights. Not tion of more universal rights.1 only has the US Supreme Court’s conservatism continued, but state courts have accepted 1. INDEPENDENT STATE CONSTITUTIONAL Justice Brennan’s invitation to “fill the vacu- RIGHTS um” being left at the federal level. To date During the past 25 years there has been a there are literally hundreds of cases where state renewed interest in American state constitu- supreme courts have interpreted state constitu- tional rights protections; the “new judicial fed- tions to provide more rights than recognised eralism”. States and state courts may not recog- under the federal constitution. Often these state nise less in the way of rights for their residents cases explicitly reject the prior conclusions of than is required by federal law. Federal law the US Supreme Court on the matter when it creates a national minimum of rights or – in the was presented as federal constitutional ques- words of one state court – “the least common tion! This is an extremely important, but still denominator” of rights protections.2 But in the generally unrecognised, aspect of US constitu- United States (US) federal system, states and tional federalism. state courts (and courts in American territories A federal constitutional arrangement such as and possessions)3 are permitted to recognise America’s which permits state constitutional more rights protections for their residents than rights beyond the national minimum standard

67 Williams results in a “rights landscape” that may be char- detail focuses attention on the text of the pro- acterised by “peaks and valleys of rights protec- vision at issue and related provisions of the tion” among the different component units.5 state constitution. Such an approach, however, is a central feature • State constitutions may contain individual of a federal system, with a variety of different rights having no analogue in the federal con- legal rules in the component units. stitution. For example, equal rights provi- Observations such as the following by the sions barring discrimination on the basis of Alaska Supreme Court still may startle some sex, requirements of to courts for American lawyers and judges, as well as redress of injuries, rights of privacy, and spe- observers from other countries, especially those cific protections for the incarcerated may be who are accustomed to considering the US found in state constitutions but not in the fed- Supreme Court to be the exclusive American eral constitution. Lawyers therefore often judicial body enforcing individual rights: have wide-ranging opportunities under state “While we must enforce the minimum con- constitutions for formulating novel argu- stitutional standards imposed upon us by the ments. United States Supreme Court’s interpreta- Because of the absence of federal ana- tion of the Fourteenth Amendment, we are logues, state courts necessarily have inter- free, and we are under a duty, to develop preted these constitutional provisions inde- additional constitutional rights and privi- pendently of US Supreme Court cases. leges under our Alaska Constitution . . . We Therefore, the state courts have developed a need not stand by idly and passively, wait- truly independent constitutional jurispru- ing for our constitutional direction from the dence under some of these provisions. This highest court of the land.”6 body of law can provide an approach for state The power of state supreme courts to “go be- courts to emulate when they seek to develop yond” decisions of the US Supreme Court an independent interpretation of state consti- seems to contradict the fundamental under- tutional provisions that do have federal ana- standing of the supremacy of the federal consti- logues. tution. Unraveling this apparent paradox pro- • When the US Supreme Court interprets the vides a number of lessons about US constitu- federal constitution in cases challenging state tional law: laws, notions of federalism often constrain it • Identical state and federal constitutional lan- in ways that do not affect state supreme guage can have different interpretations, with courts. For example, when the Supreme state courts interpreting their state constitu- Court declined to invalidate Texas’ school tional provisions to recognise more, but not finance law on equality grounds in San Anto- less, constitutional protection than is provid- nio Independent School District v Rodri- ed by the US Supreme Court interpreting the guez,8 the Court revealed its concerns about federal constitution. federalism and deference to the states: • Most of the protections of the federal Bill of “It must be remembered, also, that every Rights were modelled on state concepts of claim arising under the Equal Protection constitutional protection that predated the Clause has implications for the relationship federal constitution. As Justice Stanley Mosk between national and state power under our of the California Supreme Court noted: federal system. Questions of federalism are “It is a fiction too long accepted that pro- always inherent in the process of determin- visions in state constitutions textually ing whether a state’s laws are to be accord- identical to the Bill of Rights were intend- ed the traditional presumption of constitu- ed to mirror their federal counterpart. The tionality, or are to be subjected instead to lesson of history is otherwise: the Bill of rigorous judicial scrutiny.” Rights was based upon corresponding Despite the fact that public schools in Texas provisions of the first state constitutions, were financed with local property taxes, lead- rather than the reverse.”7 ing to extreme inequalities based on the value • The language of state constitutional provi- of the property in different school districts, sions often is more detailed than that con- the Supreme Court refused the claim. Several tained in the federal Bill of Rights. Such state supreme courts, however, striking down

68 Williams

school financing schemes despite Rodriguez, voters in California adopted a state constitu- indicated their own lack of concern for the tional provision distinguishing the coverage federalism issue.9 State supreme court inter- of the state and federal constitutions: “Rights pretations of their own constitutions have no guaranteed by this Constitution are not binding force outside the state. They apply dependent on those guaranteed by the United only within a single state. Of course, ques- States Constitution.”15 The next year, the tions regarding the proper judicial function in California Supreme Court observed: reviewing actions of the other branches of “Of course this declaration of constitu- government remain, but they are horizontal, tional independence did not originate at intrastate matters without the additional verti- that recent election; indeed the voters cal federalism concerns. were told the provision was a mere reaf- • State supreme courts may reject the US firmation of existing law.”16 Supreme Court’s technique of analysis in A 1978 attempt in Florida to adopt a similar constitutional interpretation. Thus, not just constitutional provision failed with the rejec- the result may be different; the underlying tion by the electorate of the entire package of state judicial approach to constitutional proposals by the 1977-1978 Constitution analysis also may diverge from the more Revision Commission.17 familiar federal constitutional doctrine. Interpretations of a state constitution • The federal constitutional requirement of expanding upon federal constitutional protec- state action,10 restricting federal constitution- tions are therefore not governed solely by the al challenges to only those actions of govern- attitude of state courts. Textual changes to mental officials, as opposed to private per- the constitution, as in California, can also sons, may not be present in state constitution- influence courts’ decisions. This aspect of the al protections.11 Many state constitutional process of state constitutional lawmaking – provisions, such as statutes, grant positive textual change – can, however, be a two-way rights in specific terms and therefore some- street. In 1979, just five years after ratifying times may also apply to non-governmental the provision quoted above, the California action.12 The education finance cases referred voters amended Article I, section 7. The to earlier are examples of positive rights amendment prohibited California courts from interpretation. going beyond the requirements of the federal • Constitutional doctrines long ago repudiated equal protection clause of the Fourteenth by the US Supreme Court may still be viable Amendment in the use of pupil assignment as matters of state constitutional law. The and school busing remedies. The amendment most important examples are “substantive was intended to overrule a long series of due process” limitations on state statutes that California decisions ordering such remedies interfere with contract rights in the field of in the absence of intentional segregation, a economic regulation,13 which many states prerequisite under federal law.18 The US still utilise, and the doctrine of non-delega- Supreme Court upheld Proposition 1 against tion of legislative authority. a federal constitutional challenge19 illustrat- • Even if a state supreme court is convinced ing the possibility of using amendments to that its constitution provides more extensive the constitutional text either to stimulate or rights than the federal constitution, the state overrule independent state constitutional court must consider carefully whether these interpretations. greater rights for one litigant would interfere • Judicial interpretation of state constitutions or with the federal constitutional rights of other amendment of the texts is not the only means litigants. Going beyond the federal minimum by which states may provide greater protec- guarantees for one party may in some cir- tion to their citizens than is required by the cumstances deprive the losing party of other federal constitution. Means of expanding federal minimum guarantees.14 such protection, which are often overlooked, • State constitutions themselves can address are by state statute, common law, or adminis- the question of whether they should be inter- trative regulation. The New York Court of preted to provide greater protections than the Appeals noted that the federal constitution federal constitution. In 1974, for example, the “leaves the States free to provide greater

69 Williams

rights for its citizens through its Constitution, the power to interpret their constitutions to pro- statutes or rulemaking authority”.20 One vide more individual rights than recognised at familiar example of expanded protection is the federal level, the recent, highly visible inde- the passage of state “press shield laws” after pendent interpretation cases involving criminal the Supreme Court ruled in Branzburg v procedure, abortion financing, and freedom of Hayes21 that reporters had no First Amend- expression have focused attention on state ment (freedom of the press) privilege to courts as constitutional decision makers in con- refuse to appear before grand juries or refuse troversial cases. This is a role that had previ- to answer grand jury questions about the ously been reserved for the US Supreme Court sources of their information. Another exam- and federal judges. This attention has raised ple is the state legislative decision to continue questions about the legitimacy of state court Medicaid funding for abortions for poor decisions rejecting Supreme Court reasoning women by at least nine states after the Su- and result. These legitimacy questions in state preme Court’s decision in Harris v McRae22 cases “evading”26 Supreme Court precedent left states without any federal constitutional have encouraged some state courts to attempt to restriction on terminating such funding. formulate standards or criteria by which to jus- Thus, if an attempt to establish a right fails tify their rejection of Supreme Court deci- at the federal level, the right may be pursued sions.27 in state courts, legislatures and administrative The legitimacy of a state court decision inter- agencies. Moreover, state laws, other than the preting a state constitutional provision is not state constitution, offer many protections questioned in cases dealing with such areas as beyond those required by the federal consti- government structure or separation of powers, tution. where there are no federal constitutional restric- • As a procedural matter, a final decision of a tions applicable to the states. Nor does the state court is insulated from review by the US question of legitimacy arise in cases involving Supreme Court if the decision is based on an the many state constitutional provisions to adequate and independent state ground.23 which no comparable or analogous federal con- Insulation results even if the case also stitutional provision exists. Arguments about decides a federal constitutional issue because independence do not arise in these situations the state ground would have been adequate to simply because there is nothing from which the support the state court decision even in the state courts need to assert independence. Also, absence of the federal ground. Interestingly, state courts need not (and may not) exercise however, state courts are still slow – now independence when the Supreme Court has pre- almost two decades after the Supreme viously invalidated a state policy similar to the Court’s clear pronouncement – to take advan- one currently before the state courts. tage of the opportunity to insulate their deci- The perceived legitimacy problem arises only sions from Supreme Court review.24 when the US Supreme Court has upheld state Whether a state court should reject a US legislative or executive action under a federal Supreme Court interpretation of a similar constitutional provision which is similar or constitutional provision is a difficult ques- identical to a state constitutional provision. The tion. Until now, most scholars have focused Supreme Court decision casts a shadow over on courts that have already done so.25 The subsequent state litigation on what otherwise following questions are still confounding US would be purely a question of state constitu- state judges and lawyers: How can courts tional interpretation. The shadow seems to cre- make this decision and how can counsel ate a presumption of correctness, thus requiring develop meaningful arguments addressing a state court clearly to articulate reasons justify- this question? Should a state court resolve ing a contrary result. In other words, the state constitutional issues before it resolves Supreme Court decision is sometimes viewed federal issues? What is the value of uniform, as presumptively applicable to state constitu- nationwide rules on rights protections? tional interpretation. This presumption is not necessarily based on the persuasiveness of the 2. METHODOLOGY AND LEGITIMACY Supreme Court’s reasoning, but rather on its Although state courts have always possessed position as the highest court in the nation.

70 Williams

3. THE MISTAKEN PREMISE OF UNITED STATES state law, for the Constitution only limits SUPREME COURT CORRECTNESS the actions of state officials; authority to Most of the methodological problems state take these actions must be found in state courts encounter when interpreting state rights law.”29 provisions which are analogous to those con- The justices of the US Supreme Court have tained in the federal Bill of Rights arise – in been referred to as “teachers in a vital national Oregon Justice Hans Linde’s words – from: seminar.”30 But their lessons, like those of all “the non sequitur that the United States teachers, differ. When they teach us that the Supreme Court’s decisions under such a federal constitution does not provide certain text not only deserve respect but presump- rights, the issues are not foreclosed at the state tively fix its correct meaning also in state level under the state constitution. Justice constitutions.”28 Brennan of the US Supreme Court advised: The often unstated premise that US Supreme “[S]tate court judges, and also practitioners, Court interpretations of the federal Bill of do well to scrutinise constitutional decisions Rights are presumptively correct for interpret- by federal courts, for only if they are found ing analogous state provisions is simply wrong. to be logically persuasive and well-rea- But it still exerts a significant amount of intu- soned, paying due regard to precedent and itive force upon US lawyers and judges grap- the policies underlying specific constitu- pling with problems of state constitutional tional guarantees, may they properly claim interpretation. It is important, therefore, to persuasive weight as guideposts when inter- understand the sources of this mistaken preting counterpart state guarantees.”31 premise. Despite the clear distinction between Supreme First, the premise is based on a conception of Court cases which recognise rights and those the power and authority of the US Supreme which do not recognise rights, there still Court in the American legal system. Most remains a certain aura of correctness to all deci- judges and legal practitioners, as well as mem- sions of the US Supreme Court. This can, bers of the media, formed their attitudes about unfortunately, lead to what Nebraska Justice the US Supreme Court when it was recognising Thomas M. Shanahan called a “pavlovian con- rights. Federal constitutional decisions recog- ditioned reflex in an uncritical adoption of fed- nising new constitutional rights are extremely eral decisions . . .”.32 The only way to combat powerful. Under the Supremacy Clause, these this mistaken premise – often so powerful it is decisions have the power to reach into every like a reflex – is to understand clearly its ori- single state trial court in the country because gins and work to overcome its force upon the state judges must follow them. Based on this legal system. experience, it is an odd feeling for lawyers and state judges to think about having a “choice” as 4. RELEVANCE OF AMERICAN EXPERIENCE to whether they should follow decisions of the ABROAD: SOUTH AFRICA US Supreme Court. But, in fact, state courts do In South Africa, according to the terms of the have a choice as to whether to follow decisions Interim Constitution, a provincial constitution rejecting asserted federal constitutional rights. could not take effect until the Constitutional It is critical to remember that it is very differ- Court had certified that it complied with the ent for the Supreme Court to hold that people requirements of the national constitution. have certain rights that must be respected under Therefore, the draft provincial constitution of the federal constitution than for it to hold that KwaZulu-Natal was submitted to the Constitu- people do not have such rights. Because both tional Court. The Court refused to certify the are decisions of the US Supreme Court, howev- draft constitution of KwaZulu-Natal.33 In this er, judges and lawyers “feel” both kinds of case, the Constitutional Court found that “there decisions should have the same force. Upon are fundamental respects in which the provin- closer examination, however, it is clear that just cial Constitution is fatally flawed”.34 because some action is not prohibited by the One of the most interesting elements of the federal constitution, it is not therefore automati- Court’s decision deals with Chapter 3 of pro- cally, as Justice Linde has noted: posed KwaZulu-Natal Constitution, the Bill of “‘authorised’ in the absence of contrary Rights. The Court concluded that there “can in

71 Williams principle be no objection to a province embody- Constitutional Court used fits with the recent ing a bill of rights in its constitution”.35 The observation by US scholar Robert Shapiro: Court noted that most constitutions had bills of “At the same time that we are looking rights, and that the Interim Constitution “nei- inward to state constitutions, we are also ther prescribes nor proscribes any form or looking outward to the growth of constitu- structure or content for such [provincial] consti- tionalism in the international realm. Fed- tution”.36 eralism has been said to be the great contri- The Court noted that the only restriction on a bution of the United States to political theo- provincial bill of rights would be the require- ry. So, too, a theory of state constitutions in ment that it could not be inconsistent with the our federalist system may contribute to the national constitution. The Court reserved for ongoing international discussions about another day the question of whether such incon- extending the rule of law into an ethnically sistency would arise if national legislation and culturally pluralistic world.”43 seemed to “cover the field” that a provincial Despite this general endorsement of a provin- bill of rights provision purported also to cover, cial bill of rights, the Court concluded that the citing the example of Australia.37 KwaZulu-Natal Constitution’s Bill of Rights The Court concluded that just because the “is deeply flawed . . . and will have to be thor- interim national constitution contained a Bill of oughly redrafted should the KZN Legislature Rights, that would not make a bill of rights in a still wish to embody a bill of rights in a provin- provincial constitution “without more, inconsis- cial constitution”.44 tent with the Interim Constitution or the Consti- Despite the fact that the KwaZulu-Natal tutional Principles”.38 provincial constitution was denied certification The Court went on to note that a provincial under the Interim Constitution, the Constitu- constitutional bill of rights could not operate tional Court’s pronouncements concerning with respect to matters over which the provin- provincial bills of rights seem valid even after cial legislature or executive did not have adoption of the national constitution in 1996. In power.39 Finally, the Court made the following certifying the new national constitution, the important pronouncement: court noted that Constitutional Principle “A provincial bill of rights could (in respect XVIII(2) required the national constitution not of matters falling within the province’s to provide “substantially less . . . or substantial- powers) place greater limitations on the ly inferior” power to a province to adopt a con- province’s powers or confer greater rights stitution than that provided in the Interim Con- on individuals than does the Interim Con- stitution.45 Importantly, the Court concluded stitution, and it could even confer rights on that the power of provinces to adopt constitu- individuals which do not exist in the Interim tions was “substantially the same” under both Constitution. An important question is constitutions.46 Thus, its conclusions in the whether such provisions would be “in- KwaZulu-Natal case seem to have continuing consistent with” (“onbestaanbaar met”) the validity. provisions of the Interim Constitution.”40 The Western Cape provincial constitution, The Court stated that such greater rights were although certified and currently in effect, does possible even within a circumstance where both not contain a bill of rights. It remains to be seen the national and provincial bill of rights cov- whether other provinces will engage in consti- ered topics. tution making any time soon. If they do, there “They are not inconsistent when it is possi- are now a few judicial benchmarks to be fol- ble to obey each without disobeying either. lowed. Through this series of Constitutional There is no principle or practical reason Court rulings, a South African jurisprudence of why such provisions cannot operate togeth- subnational rights protection is beginning. The er harmoniously in the same field.”41 South African Constitutional Court justices The Constitutional Court cited the well-known thus have served, and will continue to serve, as late Justice William J. Brennan, Jr., of the US “teachers in a vital national seminar.”47 Supreme Court in support of these important propositions.42 This comparative subnational CONCLUSION constitutional law focus that the South African The American experience with the new judicial

72 Williams federalism, as South Africa has now shown, government, or enforced only at minimal may have real importance for those in other levels. Such an arrangement would produce federal systems. John Kincaid recently peaks and valleys of rights protection within observed: a nation, but this rugged rights terrain is “Given that it is increasingly necessary to surely preferable to a flat land of minimal or think globally while acting locally, it is per- ineffectual national rights protection. The tinent to suggest that this American experi- peak jurisdictions can function, under ence with the new judicial federalism . . . democratic conditions, as rights leaders for may have useful implications for an emerg- a levelling-up process. In an emerging ing federalist revolution worldwide . . . The democracy culturally hostile to women’s new judicial federalism, moreover, is situat- rights, for example, such an arrangement ed at a critical intersection between individ- could embolden at least one subnational ual rights and local autonomy, a matter of jurisdiction to institutionalise women’s increasing importance and conflict in the rights, thus establishing a rights peak visible post–Cold War era. to the entire society without plunging the The new judicial federalism, however, nation into civil war or back into reac- suggests a model that would enable rights tionary .”48 advocates to continue pressing for vigorous Comparative study, though, is a two-way national and even international rights pro- endeavour. There is much for Americans to tections, while also embedding in regional learn from the experience of other federal sys- constitutions and local charters rights that tems with subnational constitutions. Such recip- cannot be embedded in the national consti- rocal information is the basis for studying com- tution, effectively enforced by the national parative subnational constitutional law.

ENDNOTES 1) John Kincaid and Robert F. Williams, tion of the Fourteenth Amendment “must “The new judicial federalism: the States’ operate in all areas of the nation and hence lead in rights protection”, 65 Journal of St. it invariably represents the lowest com- Gov’t 50, 52 (April-June, 1992). See also mon denominator”.) G. Alan Tarr, “The past and future of the 3) Jose Alvarez-Gonzales, “The protection of new judicial federalism”, 24 Publius: The civil rights in Puerto Rico”, 6 Ariz. J. Int’l Journal of Federalism 63 (Spring, 1994); & Comp. L. 88 (1989). Robert F. Williams, “Foreword: looking 4) William J. Brennan, Jr., “State constitu- back at the new judicial federalism’s first tions and the protection of individual generation”, 30 Valparaiso U.L. Rev. xiii rights”, 90 Harv. L. Rev. 489 (1977). (1996). Justice Brennan served on the New Jersey 2) Alderwood Associates v Washington Supreme Court from 1952 to 1956. See Environmental Council, 635 P.2d 108, 115 generally Robert F. Williams, Justice (Wash. 1981). (Supreme Court interpreta- Brennan, “The New Jersey Supreme

73 Williams

Court, and state constitutions: the evolu- 19) Id. tion of a state constitutional conscious- 20) Cooper v Morin, 399 N.E. 2d 1188, 1193 ness”, 29 Rutgers L.J. 763 (1998). (N.Y. 1979) (emphasis added). 5) See Kincaid, infra note 48. 21) 408 US 665 (1972). 6) Baker v City of Fairbanks, 471 P.2d 386, 22) 448 US 297 (1980). For a discussion of 401-02 (Alaska 1970) (footnote omitted). this issue under state constitutional law, 7) People v Brisendine, 531 P.2d 1099, 1113 see Robert F. Williams, “In the Supreme (Cal. 1975). Donald S. Lutz, “The state Court’s shadow, legitimacy of state rejec- constitutional pedigree of the US Bill of tion of Supreme Court reasoning and Rights”, 22 Publius: The Journal of result”, 35 S. Car. L. Rev. 353 (1984), “In Federalism 19 (1992). the glare of the Supreme Court: continuing Of course, some later state constitutions methodology and legitimacy problems in now contain material taken from the feder- independent state constitutional rights al constitution. See, e.g., Student Public adjudication”, 72 Notre Dame L. Rev. Interest Research Group v Byrne, 432 1015 (1997). A.2d 507 (N.J. 1981). 23) Michigan v Long, 463 US 1032 (1983) 8) 411 US 1, 44 (1973). See Lawrence G. 24) Note, “Fulfilling the goals of Michigan v Sager, “Fair measure: the legal status of Long, the state court reaction”, 56 Ford. L. underenforced constitutional norms”, 91 Rev. 1041 (1988). Harv. L. Rev. 1212, 1217-18 (1978) (refer- 25) Ronald K.L. Collins and David M. Sko- ring to federalism concerns as “institution- ver, “The future of liberal legal scholar- al” rather than “analytical” limitation on ship”, 87 Mich. L. Rev. 189, 217-18 Supreme Court’s rulings). See also (1988). Lawrence G. Sager, “Foreword: state 26) Donald E. Wilks, Jr., “More on the new courts and the strategic space between the federalism in criminal procedure”, 63 Ky. norms and rules of constitutional law”, 63 L.J. 873 n. 2 (1975). Tex. L. Rev. 959 (1985). 27) I have criticised this movement in 9) See, e.g., Serrano v Priest, 557 P.2d 929, Williams, supra note 22. (Cal. 1976); Robinson v Cahill, 303 A.2d 28) State v Kennedy, 666 P.2d 1316, 1322 (Or. 273 (N.J. 1973), cert. denied, 414 US 976 1983). (1973). 29) State v Scharf, 605 P.2d 690, 691 (Or. 10) See generally Flagg Bros., Inc. v Brooks, 1980) (emphases added). Justice Linde’s 436 US 149 (1978). point in this opinion is very important and 11) John Devlin, “Constructing an alternative should shift attention away from limits on to ‘state action’ as a limit on state consti- actions in either the state or federal consti- tutional rights guarantees: a survey, cri- tutions, to the underlying authority for tique and proposal”, 21 Rutgers L.J. 819 such action. This can be a very different (1990). kind of argument, often shifting the focus 12) Burt Neuborne, “Foreword: state constitu- from constitutional law to statutory law. tions and the evolution of positive rights”, 30) Rostow, “The democratic character of 20 Rutgers L.J. 881 (1989). judicial review”, 66 Harv. L. Rev. 193, 13) “Developments in the law – the interpreta- 208 (1952). tion of state constitutional rights, 95 Harv. 31) Brennan, supra note 4, at 502. L. Rev. 1324, 1498-99 (1982). 32) State v Havlat, 222 neb. 554, 573, 385 14) Pruneyard Shopping Center v Robins, 447 N.W. 2d 436, 447 (1986) (Shanahan, J., US 74 (1980). dissenting). 15) Cal. Const. art. 1, § 24. 33) Certification of the Constitution of the 16) People v Brisendine, 531 P.2d 1099, 1114 Province of KwaZulu-Natal, 1996 (Case (Cal. 1975). CCT 15/96, September 6, 1996) (Herein- 17) Talbot D’Alemberte, The Florida State after “Certification of KwaZulu-Natal.”) Constitution: a reference guide 15 (1991). 34) Id., at ¶ [13]. 18) Crawford v Los Angeles Bd. of Educ., 102 35) Id., at ¶ [17]. S. Ct. 3211 (1982). 36) Id.

74 Williams

37) Id., quoting Blackshield, Williams and 44) Certification of KwaZulu-Natal, supra Fitzgerald, Australian Constitutional note 33, at ¶ [31]. Theory (1996) p. 473. (Internal quotations 45) Certification of the Constitution of the omitted.) Republic of South Africa, 1996 (case CCT 38) Id., at ¶ [17]. 23/96, September 6, 1996), ¶ [342]. 39) Id., at ¶ [19]. 46) Id., at ¶ [344]–[347]. 40) Id., at ¶ [23]. 47) Supra, note 30. 41) Id., at ¶ [24] (footnote omitted). 48) John Kincaid, “Foreword: the new federal- 42) Id., at note 13, citing William J. Brennan, ism context of the new judicial federal- Jr., “The Bill of Rights and the states: the ism”, 26 Rutgers L.J. 913, 946-47 (1995). revival of state constitutions as guardians See generally, Federalism and Rights of individual rights”, 61 NYU L. Rev. 535 (Ellis Katz and G. Alan Tarr, eds., 1996); (1986). Michael E. Solimine and James L. Walker, 43) Robert A. Shapiro, “Identity and interpre- “Federalism, liberty and state constitution- tation in state constitutional law”, 84 VA. al law”, 23 Ohio Northern U.L. Rev. 1457 L. Rev. 389, 457 (1998). (1997).

75 Controlling Competency Conflicts: Subnational Constitutions, National Constitutions and the Allocation of Authority

Alan Tarr

INTRODUCTION inadvertent. Nor are the problems I have identi- A renowned justice of the United States (US) fied transitory problems, confined to the early Supreme Court, Oliver Wendell Holmes, once years of a constitutional system. Assessing the observed that the US would not collapse if the American experience, Chief Justice John Supreme Court lost its power to strike down Marshall concluded that: congressional enactments. But the nation would “the question respecting the extent of the be imperiled if the Court could not invalidate powers actually granted, is perpetually aris- state laws. For, according to Holmes, the states ing, and will probably continue to arise, as tended to consider only the local advantages of long as our system shall exist.”2 policy measures, while failing to recognise the The question, then, is not how to eliminate con- broader national implications of their actions.1 flicts over the division of power, over compe- I quote Justice Holmes at the outset of this tencies, once and for all; such conflicts are paper because he identifies a problem common inevitable. Rather, one must ask how to min- to all governmental systems that divide authori- imise those conflicts and how to resolve them ty between a national government and subna- when they do occur. In addressing these ques- tional governments: the subnational govern- tions, I shall focus primarily on the approaches ments are tempted to invade national authority pioneered in the US – the system I know best – in order to secure benefits for their citizens. Of but I shall also seek to compare those with the course, this is not the only possible problem in approaches adopted in various other systems. a system of divided power – the national gov- My hope is that the experiences I recount may ernment may also invade the prerogatives of be of interest not only to scholars but also to the subnational units. Guarding against these those officials who must deal with the compe- problems is difficult because, once one decides tencies issue on a day-to-day basis. to divide governmental power, it is difficult to At the outset, it is important to recognise that delineate clearly where the authority of one there are two basic ways to deal with conflicts government ends and that of the other begins. about the competencies of national and subna- Thus, honest mistakes about the scope of tional governments. One way is through consti- national powers and those of the subnational tutional design: that is, by constructing both the units are common. Bad motives are a concern national and subnational constitutions so as to as well: the absence of clear divisions of minimise opportunities for conflict. The other authority allows those seeking to aggrandise way is through conflict resolution: that is, by themselves to claim that their actions are con- devising mechanisms for dealing with conflicts stitutionally permissible or, failing that, to when they do occur. Neither constitutional insist that their constitutional violations were design nor conflict resolution is adequate by

77 Tarr itself. Not even the wisest constitution maker imposed conditions on what state constitutions can anticipate all potential conflicts over com- should contain in the acts by which it autho- petencies and devise constitutional language rised prospective states to devise constitutions that will prevent them from occurring. And if and apply for statehood. State constitution mak- constitutions were drafted without considera- ers know that they have to meet those condi- tion of how to prevent potential conflicts from tions in order to secure a favourable vote on occurring, one suspects that such conflicts admission.6 If a proposed constitution contains would become endemic and that the constant provisions of which Congress or the President conflicts would shred the constitutional fabric disapprove, either of them can refuse their con- of the nation. Let me turn first to how constitu- sent to legislation admitting the state until the tional design – and particularly subnational offending provisions are altered or removed. constitutional design – can help to minimise This congressional and executive power, constitutional conflict. together with the states’ eagerness to attain statehood, has in several cases served a deter- 1. MINIMISING INTERCONSTITUTIONAL rent function. State constitution makers have CONFLICT refrained from including provisions in their 1.1 Subnational constitutional design charters because they expected those provisions One way to minimise conflict between national would likely excite opposition in Congress and and subnational constitutions is for the national might jeopardise or delay admission to the constitution to give the national government Union. some control over the content of subnational The system I have described is not common constitutions at the time they are being created. to all federal systems.7 Germany, for example, This, of course, requires that the national gov- imposed no special requirements on the consti- ernment pre-date the creation of those constitu- tutions drafted by the five Länder that became tions, and this is not always the case. In part of the country following the collapse of the Australia, for example, state constitutions were German Democratic Republic.8 And Russia has established prior to the adoption of the established no principles to guide constitution Commonwealth Constitution, and that constitu- making in the 89 constituent units that comprise tion specifically provided for the continued the Russian Federation.9 However, there are operation of the existing state constitutions.3 In interesting parallels in the processes established the US, the situation was even more complicat- in the US and in South Africa for the approval ed. The 13 states that declared independence of proposed constitutions. In both countries from England in 1776 devised their initial con- there are pre-existing standards to which pro- stitutions prior to the adoption of the nation’s posed constitutions must conform in order to first constitution – indeed, four states had draft- win approval. Whereas in the US, these stan- ed constitutions even prior to the Declaration of dards are contained in congressional enabling Independence. Thus, there was no possibility of acts (the acts authorising prospective states to a national authority imposing conditions on draft constitutions), in the South African case, what would be contained in the constitutions of these standards are the well-known 34 princi- the original 13 states. Most of the other 37 ples enunciated in the transitional constitution. states, however, were formed from territory In both countries as well, there is a supervisory governed by the US, with Congress controlling authority empowered to scrutinise whether pro- the admission of states and the delineation of posed constitutions comply with the applicable their boundaries.4 This gave the national gov- principles. ernment an opportunity to exert direct influence In the US, this supervisory authority is a on state constitutions at the point that the states political body, Congress; but in South Africa a were applying for admission to the Union. The judicial body, the Constitutional Court, per- US Constitution implicitly confers on Congress forms this function. Finally, in both countries the power to do so: by empowering Congress to the supervising body can require changes in a admit new states to the Union, it in effect gives proposed constitution as a condition for its Congress the power to establish the conditions acceptance – indeed, in both the US and South under which they will be admitted.5 Africa, this has occurred. Acting under this authority, Congress has But South Africa has introduced a distinctive

78 Tarr element. Typically, the supervision of constitu- such requirements. Moreover, as the US tional content is a one-time process: in the US, Supreme Court’s decision in Coyle v Smith for example, once a state is admitted, Congress recognised, states – once admitted – possess no longer has authority over the content of its “all of the powers of sovereignty and jurisdic- constitution, even if subsequent constitutional tion which pertain to the original States”.15 changes introduce departures from the princi- They are therefore free to repudiate any incon- ples that governed it initially.10 In contrast, venient restrictions that Congress placed on South Africa has established a continuing judi- them under its power to admit states to the cial scrutiny of constitutions and constitutional Union. And in fact they have done so. Oklaho- changes before they take effect. No amendment ma moved its capital from Guthrie three years to a provincial constitution is valid until the prior to the date specified by Congress, and Constitutional Court certifies that it complies Arizona reinstituted the recall of judges imme- with the guidelines of section 143 of the South diately upon admission to the Union.16 African Constitution. Of course, if the US had South Africa’s sys- Given the similarities between the American tem of continuing scrutiny of state constitution- and South African models, it might be worth al revision and amendment, such post-admis- considering what effect congressional mandates sion repudiations of congressional mandates have had on the substance of American state could not have occurred. So there are certainly constitutions. My answer would be: very little. benefits in the South African system. There Many of the conditions that Congress imposed may, however, be costs as well. For one thing, on prospective states were non-controversial continuing supervision by the Constitutional and, most likely, superfluous.11 Enabling acts Court impinges on the independent political of the late 19th century, for example, required judgment of provincial constitution makers. In that state governments be “republican in form” addition, such supervision has the potential of and “not be repugnant to the Constitution of the embroiling the Constitutional Court in political- US or the principles of the Declaration of ly charged issues, and requiring it to rule on Independence.”12 Yet even without these con- such issues could undermine the Court’s gressional directives, no prospective state authority or jeopardise its independence. would have adopted a monarchial or oligarchic Finally, constitutional principles that might constitution, nor one blatantly inconsistent with have seemed appropriate at one point in time the national constitution. Even some more spe- might no longer be viewed so favourably when cific congressional requirements may have been conditions and political perspectives shift. unnecessary. For example, state constitutional Thus, continuing enforcement of detailed prin- conventions were instructed to secure a “perfect ciples might preclude constitutional changes toleration of religious sentiment” and to pro- warranted by shifts in opinion and in circum- vide for “the establishment and maintenance of stances. systems of public schools . . . free from sectari- Another possible way to minimise conflicts an control.”13 Yet even without such mandates, between national and subnational constitutions the constitutions of most states by the late 19th is to prescribe the contents of the subnational century already provided for a system of public constitutions in the national constitution. schools and banned sectarian influences in Indeed, the national constitution could obviate those schools. Finally, some states were obliged the need for subnational constitutions altogether by enabling acts to adopt or eliminate particular by prescribing in detail the form of government constitutional provisions as the price of state- for subnational units. India and Canada have hood. As a condition for admission, Congress shown that federal systems can get along quite required Oklahoma to locate its capital in the well without subnational constitutions.17 But town of Guthrie until 1913. And after Arizona even if a country has subnational constitutions, proposed a constitution that included the recall mandates in the national constitution can of judges, President Taft vetoed the statehood restrict the range of choice for subnational con- bill, forcing Arizona to delete the provision.14 stitution makers or can induce the subnational Nevertheless, even the impact of these specif- units to alter their constitutions to bring them ic requirements has been minimal. For one into conformity with national requirements. thing, only infrequently has Congress imposed The US, of course, has opted for state consti-

79 Tarr tutions. Interestingly, the basic decision was of the US Constitution, national law is superior reached in 1775, the year before the American to state law, so that in cases of conflict, valid colonies declared their independence from national enactments – be they constitutional England. Massachusetts petitioned the Con- provisions, statutes or administrative regula- tinental Congress for instructions as to the form tions – prevail over state constitutional provi- of government the colony should institute in the sions. This has led state constitution makers to event of a break with England. But the Conti- seek to avoid such conflicts, even if that has nental Congress declined to provide such guid- meant foregoing provisions they would have ance; and this unwillingness to prescribe, to wished to adopt.22 interfere with the state’s opportunity to engage in the most fundamental act of self-determina- 1.2 National constitutional design tion, has set the precedent for American politi- Since the focus of this conference is on subna- cal practice ever since. tional constitutions, my remarks on national This is evident in the fate of the US Constitu- constitutional design and competency disputes tion’s so-called Guarantee Clause, which oblig- will be quite brief. Let me make three points. es the national government to “guarantee to First, a clear delineation of national and sub- every State in this Union a Republican Form of national powers in the national constitution can Government”.18 Although this clause appears to do much to forestall competency disputes – offer a basis for close national supervision of when the allocation of powers is clear, there is state constitutional arrangements, in fact its no basis for dispute. Such clarity may also effect on state constitutionalism has been mini- make it more difficult for national authorities to mal.19 In part, this reflects the US Supreme invade subnational powers. Nevertheless, there Court’s refusal to use the clause as a basis for may be reasons, other than ineptitude in consti- reviewing the structure and operation of state tutional drafting, why national constitutions do governments. During the mid-19th century, in not clearly delineate national powers. A too Luther v Borden, the Supreme Court ruled that detailed delineation of those powers, particular- the determination as to whether a state had a ly in a system in which residual powers lie with republican government was a political question, the subnational governments, may deprive the assigned by the Constitution to Congress, and national government of the flexibility necessary that congressional determinations on the matter to deal with new and unanticipated contingen- were binding on all other branches. In subse- cies. With this in mind, it was initially proposed quent cases it has consistently reaffirmed this at the convention that drafted the US Constitu- position.20 tion that Congress have the power to: In part, too, the limited impact of the “legislate in all cases to which the separate Guarantee Clause testifies to a reluctance on the States are incompetent, or in which the har- part of the national government to oversee the mony of the US may be interrupted by the internal politics of the states. During the first exercise of individual Legislation.” half of the 19th century, for example, oppo- Even when concerns about a too powerful nents of slavery argued that the clause prohibit- national government led the delegates to enu- ed Congress from recognising any new states merate congressional powers, the language they that permitted slavery; but perhaps because of employed – for example, “regulate commerce the presence of slave states already in the among the several states” and “all powers nec- Union, this argument did not succeed. In fact, essary and proper to carry out the foregoing the only instance in which the clause has powers” – reflected a preference for flexibility proved important was in the unique circum- over precision. They were, in sum, willing to stances of the Dorr Rebellion, when the nation- risk a proliferation of competency disputes in al government had to determine which of two order to avoid handicapping the national gov- competing governments in Rhode Island was ernment in its efforts to achieve national objec- the state’s legitimate government.21 tives. Other provisions in the US Constitution have Second, in most systems of divided powers, had somewhat more effect on state constitution some powers are shared, and these concurrent makers, although typically their effect has been powers can also produce competency disputes. indirect. Under the so-called Supremacy Clause Most national constitutions confirm the supre-

80 Tarr macy of national law in cases of conflict, but From the late 1930s to the early l990s, the US disputes may still arise about whether the Supreme Court gave only cursory attention to national and state laws conflict, or whether the claims that congressional enactments invaded state law frustrates the achievement of national state prerogatives, because, it insisted, state goals. Under the US Constitution, not only are interests were sufficiently protected by senator- some powers exclusive and others concurrent, ial participation in the process of enacting the but some powers are partially concurrent. The laws.25 power to regulate interstate commerce is a prime example of a partially concurrent power 2. RESOLVING COMPETENCY DISPUTES and a historically important one as well. As one I turn now from strategies for preventing com- commentator wryly put it: petency disputes to mechanisms for resolving “Congress may regulate interstate com- them. In the US, and in most other systems of merce; the states may also regulate inter- divided powers, the judiciary has the main state commerce, but not too much.”23 responsibility to resolve competency disputes. Even the most skilled drafter cannot draw the That, of course, is not the only possible solu- line between “all right” and “too much”, so dis- tion. The constitution of the Russian Federa- putes inevitably arise that can only be resolved tion, for example, authorises the president of on a case-by-case basis. the Federation to suspend the acts of subnation- Third, the structure of the national govern- al executives if he believes them in violation of ment – and particularly of the national legisla- the federal law or human rights. ture – can also reduce the likelihood of compe- The Justice Ministry also has the power to tency disputes. In systems of divided power, revoke regional laws that are in violation of the most national constitutions provide representa- Federation Constitution and, as of early 1998, it tion for subnational units in a second chamber had used that power to revoke nearly 2000 of the national legislature.24 The assumption is regional laws.26 that these representatives will prevent the Indeed, in the convention that drafted the US enactment of national legislation that invades Constitution, it was initially proposed to give the prerogatives of subnational units. In some Congress (rather than the Supreme Court) a systems, such as the US, the second chamber is veto over state laws that appeared to contravene equal in authority to the first chamber – all bills the national constitution. Under this proposal, must be approved by both chambers in order to no state law would take effect without congres- become law. In others, the legislative powers of sional approval. A moment’s reflection reveals the second chamber depend upon the character that such a system would encounter over- of the bill under consideration. In Germany and whelming theoretical and practical difficulties. South Africa, for example, the second chamber How could Congress be prevented from using exercises only a suspensive veto on bills that do its veto power to aggrandise itself at the ex- not implicate subnational concerns. But on bills pense of the states? And how could a Congress that do implicate those concerns, the German that finds itself pressed to meet its other respon- Bundesrat has an absolute veto, and the South sibilities take on the additional task of supervis- African National Council of Provinces can only ing the legislative output of all the states? be overridden by a two-thirds vote in the Given these difficulties, the fact that the dele- National Assembly. This makes it unlikely that gates could seriously contemplate such a funda- legislation will be adopted that invades the mental intrusion into subnational self-govern- powers of subnational governments, and that in ment is instructive. It underscores just how seri- turn reduces the frequency of competency dis- ously the delegates took the problem of compe- putes. tency disputes and to what lengths they were Yet, paradoxically, subnational participation willing to go to prevent subnational govern- in the national legislative process may have ments from intruding into the domain of the adverse effects as well. The protection afforded national government. by participation in the enactment of national Those who favoured a congressional veto law can become an excuse for inadequate over state legislation warned that the only alter- enforcement of constitutional limits on national native to such a veto was the exercise of mili- power. At least that is what occurred in the US. tary force against recalcitrant states. Such a

81 Tarr solution was no solution at all – no country tury the judiciary has become more aggressive could long survive the repeated use of force in its review of state policies and practices. against its constituent units. Ultimately, of These new requirements and more searching course, the delegates discovered a third alterna- judicial scrutiny are reflected in the increasing tive, which involved three basic features: a con- number of state constitutional provisions that stitutional delineation of the powers of nation have been invalidated. In recent years, for and state; a constitutional recognition of the example, the US Supreme Court has struck supremacy of national law within its sphere; down a Colorado constitutional amendment and judicial enforcement of constitutional affecting the rights of homosexuals, a Missouri guidelines. This third alternative had important provision requiring property ownership as a advantages. It placed the resolution of compe- qualification for appointment to a local govern- tency disputes in the hands of a neutral party, ment board, and an Arkansas limitation on the rather than in the hands of one of the dis- consecutive terms that a member of Congress putants. It also substituted the more gentle force could serve.30 Often the effects of such rulings of law for the harsh force of arms. The fact that on state constitutions have extended beyond the many other nations have adopted similar solu- provisions that have been invalidated. The rul- tions testifies to the attractiveness of this alter- ings have also rendered unenforceable analo- native. But what has been the experience with gous provisions in other state constitutions and this system? have encouraged states to amend their constitu- In the US, judicial resolution of competency tions to eliminate provisions inconsistent with disputes has primarily served to prevent the the Supreme Court’s interpretations of the states from invading the sphere of the national Constitution.31 government. The numbers speak for them- The success of the Supreme Court in keeping selves: the Supreme Court has invalidated more the national government within its constitution- than 1100 state laws and more than 50 state al bounds is less clear. During the late 19th and constitutional provisions as in conflict with the early 20th centuries, the Supreme Court aggres- national constitution, but it has struck fewer sively policed national initiatives that allegedly than 140 congressional enactments.27 Striking threatened the powers of the states, although as these figures are, they do not tell the whole the justices’ rulings may have reflected a hostil- story. Recall that under the Supremacy Clause ity to governmental regulation of the economy of the US Constitution, valid national law – rather than a solicitude for state power. This whether enshrined in the Constitution, in stat- judicial activism led in the 1930s to a con- utes, or in administrative regulations – prevails frontation with President Franklin Roosevelt, over state law, including state constitutional whose New Deal sought to rescue the nation provisions, whenever the two are in conflict. from economic depression by vigorous national During the nation’s first century, collisions action. between national law and state constitutions After a series of rulings invalidating key ele- were rare – not until 1867 did the Supreme ments of the New Deal prompted a presidential Court overturn a state constitutional provision effort to pack the Court, the justices capitulated, as inconsistent with the US Constitution.28 reversing course and upholding the expansion During the 20th century, however, national of national power. In the aftermath of this con- policy initiatives have proliferated, often in frontation, the Supreme Court for more than areas previously regulated by state law. This half a century abdicated its constitutional expansion of national power has increased the responsibility to ensure that the national gov- opportunities for conflict between national poli- ernment respected the legitimate interests of the cies and state policies, including policies states. From 1937 to 1992, the Court invalidat- enshrined in state constitutions, and has led to ed 59 congressional enactments, but only a sin- the invalidation of state enactments when such gle law was struck down as intruding on the conflicts have occurred.29 The adoption of the powers reserved by the states, and nine years Fourteenth Amendment and the application to later the Court overruled that decision.32 Aca- the states of most provisions of the national Bill demic commentators applauded the Court’s of Rights have also imposed new constitutional refusal to police the allocation of power, insist- restraints on the states, and during the 20th cen- ing that the states could protect themselves

82 Tarr through their representation in the Senate and America in favour of greater devolution to the that the Court should devote its limited resourc- states, so the Court’s renewed willingness to es of time and prestige to human rights cases.33 check unconstitutional expansions of national The result, as Justice Sandra Day O’Connor has power comes at the very time that the national noted, was that the only thing “stand[ing] government is already curtailing its activities. between the remaining essentials of state sover- Finally, the contrast between the Court’s recent eignty and Congress [was] the latter’s under- rulings and those of the preceding decades developed capacity for self-restraint”. highlights the fluctuating character of the Only in the past few years has the Supreme Court’s jurisprudence; its inconsistency in Court resumed policing the scope of national ensuring the proper allocation of powers power. Since 1992, the Court has invalidated a between national and subnational governments. congressional statute that directed state legisla- Of course, the experience I have recounted is tures to enact legislation on the disposal of unique to the US. In other countries, such as nuclear wastes, struck down another that relied Germany, constitutional courts have more on the national commerce power to justify steadfastly protected subnational units against handgun restrictions in the area of schools, and national intrusions.35 Nevertheless, the Ameri- invalidated a third that enlisted state and local can experience is instructive because it shows officials in conducting background checks on just how difficult it is to ensure that competen- gun purchasers.34 cy disputes are resolved in a way that maintains These rulings are welcome signs of a the balance of power between national and sub- renewed appreciation of federalism on the part national governments. How difficult and yet of the Supreme Court. Yet they scarcely signal how crucial, because systems with divided a fundamental shift in direction. The rulings do powers – particularly new constitutional sys- not attempt to reverse the course of national tems with divided powers, such as South Africa expansion that the Court’s abdication had – constantly have to guard against centripetal encouraged; they merely stem further expan- and centrifugal tendencies. I would like to close sion. Moreover, the rulings have coincided with by wishing South Africans success in this most the development of a political consensus in important task.

ENDNOTES 1) Oliver Wendell Holmes, Collected Legal Martinus Nijhoff Publishers, 1994), Papers (New York: Harcourt, Brace, p. 348. 1923), pp. 295-296. 4) Six states are exceptions to this statement. 2) McCulloch v Maryland, 17 US 316 Texas was an independent republic before (1819). its annexation by the US, and five states – 3) Christine Fletcher and Cliff Walsh, Vermont, Kentucky, Tennessee, Maine “Comparative fiscal constitutionalism in and West Virginia – were carved out of Australia and the US – the power of state the territory of existing states. politics,” in Bertus de Villiers, ed., 5) The main provision dealing with the Evaluating Federal Systems (Dordrecht: admission of new states is Article IV, sec-

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tion 3 of the US Constitution. Further con- 11) For more detailed discussion of this point, stitutional support for congressional con- see G. Alan Tarr, Understanding State ditions on admission is provided by Constitutions (Princeton, N.J.: Princeton Article IV, section 4 of the Constitution, University Press, 1998), pp. 39-41. which directs the federal government to 12) See, for example, the Enabling Act of “guarantee to each State in the Union a 1864 (13 Stat. 30), which authorised the Republican Form of Government”. people of Nevada to form a constitution In addition to imposing conditions on and apply for admission; and the Enabling prospective states, Congress also super- Act of 1889 (25 Stat. 676), which autho- vised the constitutions that Southern states rised the Dakotas, Montana and Washing- adopted in the aftermath of the Civil War, ton to form constitutions and apply for requiring an acceptable constitution as a admission. These enabling acts are reprint- condition for “readmission” to the Union. ed in William F. Swindler, ed., Sources However, the effects of these congression- and Documents of United States Con- al efforts were short-lived. Most Southern stitutions VI (Dobbs Ferry, N.Y.: Oceana states repudiated their Reconstruction con- Publications, 1976), pp. 261 and 64. stitutions as soon as they could, typically 13) Swindler, Sources and Documents VI, pp. replacing them with documents that by the 261 and 64. late 19th century entrenched white politi- 14) John D. Leshy, The Arizona State cal control, and Congress did nothing to Constitution: A Reference Guide prevent this undermining of republican (Westport, Conn.: Greenwood Press, government. 1993), pp. 17-18. 6) Some prospective states – for example, 15) Coyle v Smith, 221 US 559 (1911). Wyoming in 1889 – called conventions 16) Requirements imposed by Congress that and drafted constitutions even without are not based on its power to admit states, congressional authorisation. In such cir- even if contained in the enabling act, do cumstances, however, Congress still had continue in force and cannot be ignored by to approve the proposed constitution and the states. See Fain Land & Cattle Co. v confer statehood. On the Wyoming exam- Hassell, 790 P.2d 242 (Ariz. 1990). ple, see Robert B. Keiter and Tim New- 17) For a listing of those federal systems that comb, The Wyoming State Constitution: A have subnational constitutions and those Reference Guide (Westport, Conn.: that do not, see Daniel J. Elazar, Exploring Greenwood Press, 1993), pp. 4-5. Federalism (Tuscaloosa: University of 7) For a discussion of somewhat similar Alabama, 1987), p. 178, table 5.1. processes in other countries, such as 18) United States Constitution, Article IV, Switzerland and Spain, see Bertus de section 4. Several other restrictions on the Villiers, “The constitutional principles: states are found in Article I, section 10 of content and significance,” in Bertus de the Constitution, but there is no evidence Villiers, ed., Birth of a Constitution that these have affected state constitutions. (Kenwyn: Juta & Co., 1994). 19) However, one commentator, Deborah 8) For a discussion of this process of reunifi- Jones Merritt, has read the Guarantee cation and constitution making, see Peter Clause as restricting federal power to E. Quint, The Imperfect Union; Constitu- interfere with state autonomy. She argues tional Structures of German Unification that the clause’s promise to the states of a (Princeton, N.J: Princeton University “republican form of government” neces- Press, 1997), chapter 9. sarily includes the right to structure their 9) See G. Alan Tarr, “Creating federalism in own political processes, provided that they Russia,” South Texas Law Review (forth- structure them in a republican manner. See coming in 1999). her “The Guarantee Clause and state 10) Of course, such supervision can occur autonomy,” Columbia Law Review 88 through judicial review, if state constitu- (January 1988): 1-78; and “Republican tional changes conflict with national law. governments and autonomous states: a This topic is discussed below. new role for the Guarantee Clause,”

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University of Colorado Law Review 65 27) These data are drawn from The Constitu- (1994): 815-833. tion of the United States; Analysis and 20) Luther v Borden, 7 Howard 1 (1849). The Interpretation (Washington, D.C.: Con- Court reaffirmed this position in Pacific gressional Reference Service, 1996), pp. States Telephone & Telegraph Co. v 2017-2219. Some state enactments that Oregon, 223 US 118 (1912), in which it were struck down invaded national pow- rejected a challenge under the Guarantee ers, and some national enactments that Clause to Oregon’s use of the initiative for were struck down invaded state powers. law making, and in Baker v Carr, 369 US However, others involved violations of 186 (1962), even as it indicated its will- constitutional prohibitions on the exercise ingness to address the issue of legislative of governmental power, found primarily in apportionment under the equal protection the Bill of Rights and in the Fourteenth clause of the Fourteenth Amendment. Amendment. 21) On the controversy in Rhode Island, see 28) Cummings v Missouri, 4 Wall. 277 (1867). Marvin E. Gettleman, The Dorr Rebellion: 29) For examples of federal legislation pre- A Study in American Radicalism (New empting state constitutions, see North York: Random House, 1973). Carolina ex ref. Morrow v Califano, 445 22) For an interesting account of this in the F.Supp. 532 (E.D.N.C. 1977), and Utility field of inchoate national water rights, see Workers of America v Southern California Donald J. Pisani, From Family to Edison Co., 852 F.2d 1083 (9th Cir. 1988, Agribusiness: The Irrigation Crisis in cert. denied, 489 US 1078 (1989)). For an California and the West, 1850-1931 example of federal common law preempt- (Berkeley: University of California Press, ing a state constitution, see Hinderlider v 1984), p. 159 and passim. La Plata River & Cherry Creek Ditch Co., 23) Thomas Reed Powell, Vagaries and 304 US 92 (1938). Even federal regula- Varieties in Constitutional Interpretation tions override state provisions – see Fide- (New York: Columbia University Press, lity Federal Savings & Loan Association v 1956), p. ix. De La Cuesta, 458 US 141, 153-154 24) The actual composition of these second (1982). It is worth noting that several of chambers varies considerably from one these cases involve invalidation of state system to another. The German Bundesrat, provisions by lower federal courts, sug- for example, comprises members of the gesting that the figures in the text do not subnational (Länder) governments; the US encompass all instances in which state Senate originally was elected by state leg- constitutional provisions have been struck islatures; and the South African National down as in conflict with national law. For Council of Provinces represents a cross an excellent overview, see Robert F. between those institutions, including both Williams, State Constitutional Law: Cases the premiers of the provinces and other and Materials, 2nd ed. (Charlottesville, members appointed by the provincial leg- Va.: Michie, 1993), pp. 117-144. islatures. As a result of the adoption of the 30) Romer v Evans, 517 US 620 (1996); Seventeenth Amendment to the US Quinn v Millsap, 491 US 95 (1989); and Constitution, senators are now directly US Term Limits, Inc. v Thornton, 514 US elected, although each state continues to 779 (1995). have equal representation in the Senate. 31) For example, in response to the US 25) See, for example, Garcia v San Antonio Supreme Court’s ruling in Gideon v Metropolitan Transit Authority, 469 US Wainwright, 372 US 335 (1963), Hawaii 528 (1985). in 1968 constitutionalised the right of indi- 26) Constitution of the Russian Federation, gent defendants to have counsel provided Article 85, section 2. The estimate of sub- by the state. Hawaii Constitution, Article national laws invalidated was supplied by I, section 14. See Anne Feder Lee, The State Prosecutor Yuri Skuratov, quoted in Hawaii State Constitution: A Reference “Constitution watch,” Eastern European Guide (Westport, Conn.: Greenwood Constitutional Review 7 (1998): 32. Press, 1993), pp. 61-62.

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32) National League of Cities v Usery, 426 US (1992), United States v Lopez, 511 US 833 (1976), overruled in Garcia v San 1029 (1995), and Printz v United States, Antonio Metropolitan Transit Authority, 117 S.Ct. 2365 (1997). 469 US 528 (1985). 35) For a discussion of the jurisprudence of 33) See, for example, Jesse H. Choper, Judi- the German Constitutional Court in feder- cial Review and the National Political alism cases, see Donald P. Kommers, The Process: A Functional Reconsideration of Constitutional Jurisprudence of the the Role of the Supreme Court (Chicago: Federal Republic of Germany, 2nd ed. University of Chicago Press, 1980). (Durham, N.C.: Duke University Press, 34) New York v United States, 505 US 144 1997), especially chapter 3.

86 Where There’s Political Will, There Might Be a Way: Subnational Constitutions and the Birth of Democracy in South Africa

Ralph Lawrence

INTRODUCTION of the former has given way to counter social What price subnational constitutions in South engineering, for the present government – led Africa today? I can only respond as a humble by the African National Congress (ANC) – is political scientist, one who has a perennial fas- seeking to remedy the systemic ills of the past cination with governance and , and to address immediate societal needs by especially the organisational aspects. So I equally, if not more, ambitious synoptic plan- asked myself: “Would the introduction of sub- ning. Now, however, societal transformation, national constitutions be useful for South manifest as the ruling and as the yard- Africa as a newly emerging democracy?”. And stick for governance, is the means to realising my blinding revelation? “It depends . . .” A social justice. And social justice, in turn, rests trite and obvious response, you’ll agree, I’m on the twin pillars of democracy and develop- sure. But let me show you that it is as much a ment, which have to be built simultaneously. considered view as a spontaneous quip. Neither imperative can be sacrificed for the At bottom, constitutions are political vehi- sake of the other; not if both are to survive, let cles; they are expressions of political will. Of alone flourish. course, they are legal instruments besides; The values of social justice, democracy and crafted, measured, protected, adapted, sifted development are enshrined in South Africa’s and shifted by legal wit and ingenuity in many national constitution, first unveiled in 1994 and a circumstance. And the legal and political then finalised and adopted two years later. The domains rapidly become intertwined as consti- particular salience of democracy and develop- tutions endure as living manifestations of civil ment lies in how they convey a marked depar- and political life. Thus, if constitutions in gen- ture from the preceding political regime. eral are a reflection of political sentiment, cir- Democracy bespeaks inclusiveness: equal cumstances and conditions, the same is just as membership of society is assured for all. This is true of subnational variations. the bedrock of basic equality – namely, that What, then, is the political backdrop to a dis- everyone is entitled to be treated with equal cussion about subnational constitutions in the respect in civic and political terms by virtue of South African context? our equal standing as human beings. The very principle of belonging – and, moreover, 1. THE PATH TAKEN belonging as equals – had been denied most Through happenstance, skill, timing, coupled South Africans until the mid-1990s. Indeed, with a potent mix of endogenous and exoge- strong efforts were made to eradicate their very nous political and economic pressures, a identity as South Africans, as apartheid rule domestic settlement was forged in South Africa took to a logical conclusion the patterns of his- during the early 1990s, which heralded the tory to exclude, alienate and render unequal demise of apartheid and the beginnings of most of those who were governed. democracy. Social engineering characteristic Apart from establishing terms of citizenship

87 Lawrence and public participation, democracy is at the public finance and local governance are the same time a form of governance. Apartheid by three. To each in turn now. its very nature subjected people partly by frag- menting their land into racially – more particu- 2. POLITICAL VARIABLES larly, ethnically – differentiated enclaves. The In addition to what has already been mentioned onset of democracy reversed this. Instead, there about divide and rule under apartheid, it must is one people, one territory; in other words, a be remembered that South Africa is still a polit- unified South Africa, meaning a unified territo- ical adolescent – still uncertain and searching ry as the foundation of the South African state. for an identity, as a people and as a territory. Of course, there is much more besides to dis- Not even a century has lapsed since the union cuss about the character of democracy in South that is now South Africa was conceived in Africa, but my purpose here is merely to high- 1910; and nearly half that has been spent trying light those aspects most pertinent to any consid- to fragment it anew. The issue of unsettled eration of subnational constitutions. I shall treat boundaries bedevils many a society undergoing development, the other pillar of social justice, a transition to democracy, especially those that in identical fashion. were formerly colonised. South Africa fits the Stark poverty, extraordinary socio-economic mould. Although its national boundaries have inequality, whether construed as life-chances or been called into question since Namibia’s outcomes, and pronounced regional imbal- assertion of sovereignty in the later 1980s, ances, with increasingly depopulated and South Africa’s internal division into nine new underdeveloped rural areas, greeted President provinces has not been without controversy. Mandela and his team when they took office in Where the lines are drawn has immense conse- April 1994. Emancipation, for them, is not only quences for people’s lives, especially for their political freedom, but also enjoying a material welfare. The more tricky disputes, like the loca- quality of life that allows people to take full tion of parts of East Griqualand in either advantage of opportunities made open to all KwaZulu-Natal or the Eastern Cape, have South Africans. At a minimum, therefore, gov- simply been shelved for the time being, hoping ernment is charged with the constitutional that pragmatic administration at the local level responsibility to ensure that every individual’s, will let matters reach some natural political and every community’s, basic socio-economic conclusion. needs come progressively closer to being ful- While apartheid rule unleashed centrifugal filled. Equally, South Africans know that fun- forces, splitting the country asunder, this was damental socio-economic requirements are con- accompanied by a greater and greater concen- stitutional entitlements, even though these tration of political power at the centre under probably cannot be enforced as legal guaran- P.W. Botha’s stewardship during the 1980s. A tees, but can be regarded as measures of a gov- form of authoritarian arose, where- ernment’s performance. Incorporating indica- by government became increasingly militarised, tors and beacons of development as constitu- clandestine, introspective and xenophobic. A tional imperatives reveals acutely felt national global leper, South Africa’s international isola- priorities which are integral to the ideology of tion increased apace. But within, political tur- societal transformation that underpins constitu- bulence reigned. Civil wars raged too through- tional democracy in South Africa. out Southern Africa, with the apartheid govern- How the twin pillars of democracy and devel- ment often far more than an interested specta- opment are changed in shape or substance tor. Botha’s response was to batten down the depends on a cluster of key political and socio- hatches. His government – and more particular- economic variables. It is their combined impact ly, his chosen executive team – hollowed out and timing, I believe, that help to show the state by instituting political reform and con- whether, and to what extent, subnational consti- trol while the public technocrats commanded a tutions become serious factors in South African rigidly structured administration. public life. The political variables are four in To blend or to separate? And to what degree? number: historical legacy; political trajectory; To centralise or to devolve? These are not public philosophy; and style of governance. abstract issues for any South African. They lurk Socio-economic ones? Public management, in our historical consciousness and impinge on

88 Lawrence contemporary political debate. Never more so the same to its political successors. than when our democracy was crafted out of Privatisation and federalism were strategies bitter conflict and extraordinary political com- borne out of identical motivation; that is, to pre- promise. The political trajectory taken this serve and to withhold the spoils of victory more decade draws strongly on our memories and easily garnered in a unitary state. experiences as South Africans. Astonishingly enough, the unitarians and the Deep-seated beliefs and fears surfaced when federalists managed to reach a messy sort of political representatives came to decide the fun- compromise, where each had to yield but both damental architecture of democratic gover- could save political face. “Regionalism” nance. Should the state be unitary or federal? became the new watchword. Whether this is This proved to be the litmus test of ideology really a unitary arrangement with federal ele- and identity. The liberation movements, princi- ments, or a centralised version of federalism, is pally the ANC and the Pan African Congress a moot point, although perhaps an irrelevant then in the vanguard, favoured the unitary one. The price for achieving consensus was to form: one person, one vote in one country dodge intractable areas of dispute. The role of under one government. Put differently, majority traditional leaders, for example, remains unre- rule in a unified and unitary state. This was solved until now. Just how autonomous are the viewed as the essential recipe for emancipation, nine provinces? Tussles between the centre and the very philosophy that was the touchstone of the provinces have rarely been referred to the political struggle since at least the mid-1950s. Constitutional Court. Instead, the spirit of coop- On the brink of victory, why be denied the erative governance, which infuses the national prize that also symbolised an end to subjugation constitution, impels the national, provincial and and territorial fragmentation? Federalism, in local spheres of government to accommodate whatever guise, seemed too close for comfort to one another in partnership. Accordingly, inter- the machinations of apartheid. governmental relations are, for the most part, Federalists, by contrast, rested more easily conducted in the inner sanctums of the state. with qualifying or dividing majoritarianism. Still, how far can regionalism go? A subna- This brought together strange bedfellows, tional constitution for a province? Yes. But including principled opponents of apartheid, as why bother? The first democratic elections held well as leaders of apartheid “homelands”, the in April 1994 were an overwhelming triumph political beneficiaries of the old order. The for the ANC. They produced a comfortable sponsors of apartheid, the National Party (NP), majority in both houses of the national legisla- became latter-day federalists too. We can ture, as well as in seven of the nine provinces. encapsulate this diversity by alluding to posi- The NP took the Western Cape and the Inkatha tive and negative reasons prompting support for Freedom Party (IFP) came to office in Kwa- federalism. Zulu-Natal. The seven provinces governed by On the positive side, democrats argued that a the ANC saw no need whatsoever to try to sizable country with a diversified population adopt a subnational constitution. Their party, required a complex form of government that their government, was decisively in power and would best represent regional sensitivities and the national constitution offered them an ade- sensibilities in an intimate way. Only federal- quate political framework. This explanation can ism fitted the bill. Others supported federalism be embellished, as I shall a few paragraphs because the alternative seemed “too ghastly to hence. contemplate”. Putative minorities of whatever Understandably, therefore, the Western Cape description simply feared losing political power and KwaZulu-Natal became the provinces altogether and becoming victims of majority where there was a real incentive to draft subna- rule. Strong, centralised government would be tional constitutions. The Western Cape was the punitive, arrogant, profligate and wasteful. simpler case. In this well-established region Having done its best to build a corporate econo- with settled boundaries, the NP itself wanted to my as a vehicle for Afrikaner patronage, the NP assert the identity of the province, to become government began rapidly to dismantle it dur- associated with it and thus to consolidate its ing the waning years of apartheid, not only to hold at the expense of the ANC, its main rival protect wealth and privilege, but also to deny for office. The Western Cape represented the

89 Lawrence only hope for the NP, its sole claim on the reins Because once the national constitution was of power in the democratic era. Its political sur- approved, steam ran out of efforts to promote a vival and means of patronage depended on constitution in KwaZulu-Natal. Coincidence? being seen as the guardian and protector of the Curiously, the fate of KwaZulu-Natal’s province. Furthermore, in practical terms, the provincial constitution was immaterial to the NP leadership could draw on its organisation political capital that either the IFP or the ANC throughout the province, and within the ranks could gain. Even with abandoning this effort, of its supporters and the provincial the IFP could argue that it had championed the it could find the technical expertise to formulate cause of the province, and of the Zulus, and that a provincial constitution that would pass muster failure should be laid at the door of the ANC- in the Constitutional Court. led government in Pretoria. You win even if In KwaZulu-Natal, the IFP led by Mango- you lose, reinforcing the sense of aggrievement suthu Buthelezi enjoyed a fairly slim majority that many a white Natalian has experienced over its foe, the ANC. This province amalga- with central government through the decades. mated Natal with the erstwhile homeland of Likewise, the ANC in KwaZulu-Natal could KwaZulu, the IFP’s virtually unthreatened fief- not afford the opprobrium of refusing to partici- dom. The formation of a new province offered pate in constitutional discussions; but it could an open opportunity to both the ANC and the rest easy in the knowledge that the Constitu- IFP. Neither spurned it; and the upshot was tional Court would strike down provisions that considerable violence in a territory where polit- were contrary to the terms of the national con- ical conflict had already exacted a terrible toll stitution. These were difficult times, yet, in the during the 1980s. Having won the provincial end, the deliberations, paradoxically, furthered election, the IFP sought to impose its stamp on channels of communication between the IFP KwaZulu-Natal in order to protect a potentially and the ANC, and might have had some bear- larger fiefdom, to thwart the ANC and to pro- ing on damping the political violence in com- ject the IFP – and especially the figure of munities scattered about KwaZulu-Natal. Buthelezi – on to the national stage as forces to We now come to more nebulous political be reckoned with. variables that reinforce historical legacies and Up until the elections in question, the IFP political trajectories. The dominant public espoused Zulu as a rallying cry for philosophies in South Africa have tended to be political affiliation. Thus the claims of the Zulu rooted in collectivism. For the apostles of monarchy were championed, with the thought apartheid, racial categorisation and ethnicity voiced that the entire province could be regard- predominated, leading to an emphasis on group ed as a Zulu kingdom and its residents subjects rights and entitlements. It was only in the of the king. In some respects, then, a provincial course of hammering out a national political constitution might be a means of establishing settlement that the NP finally conceded that the authority of the Zulu Royal House. Not group rights should give way to individual long after the elections, however, a serious rift rights. The principal liberation movement, the opened up between Buthelezi and King ANC, is communitarian in orientation, where Goodwill Zwelethini. The King asserted his the collective will of the organisation super- independence as a monarch and distanced him- sedes all else. The emphasis in recent years on self from Buthelezi’s overbearing leadership. an African Renaissance is associated with the Despite these developments, the IFP pressed notion of ubuntu, “peopleness”, or “people-in- hard for a provincial constitution. The main aim communities”. How cogent all this is for subna- was to acquire as much autonomy as possible tional constitutions, quite frankly, I am not for KwaZulu-Natal. The plans afoot were run- sure, but it is worth noting that the South Afri- ning in tandem with the process at national can democratic constitutional order is not con- level to transform the Interim Constitution into tractarian: it is not an aggregation of prior inde- a final version by 1996. Thus it could be argued pendent units, nor have individuals traded that deliberations in KwaZulu-Natal over the autonomy for civic and political benefits, like terms of a provincial constitution were being Hobbesians and Lockeans. (Maybe the closer used as a bargaining ploy to wrest greater pow- parallel in the South African context would be ers for the provinces in the national document. with Rousseau, but even this is rather tenuous.)

90 Lawrence

The prevailing style of governance in South sion is taken, party members are expected to Africa – that is, outside the Western Cape and close ranks, to toe the line agreed on, and to be KwaZulu-Natal – is antithetical to the cause of loyal. The party caucus overshadows the opera- provincial constitutions. Two factors here. In tion of government at every level, so that ple- the first place, the communitarian public philos- nary sessions in the legislature are little more ophy of the ANC finds expression in systemic, than set-piece theatre choreographed in holistic means of governance. There is a advance. “Free votes” simply do not happen. predilection for social engineering on a grand More extreme still, the ANC itself decides to scale, reinforced by the necessity felt to over- move elected personnel from position to posi- turn the legacy of the apartheid system. The tion without receiving the prior approval of the ANC has been conscious, too, of the political legislature(s) concerned. For instance, premiers pressure to meet the high expectations of their of provinces are replaced in mid-term on the followers, and of the world at large. This also whim of the central party leadership. The IFP predisposes them to plan ambitiously and at the has behaved in identical fashion in reshuffling highest level in a concerted attempt to produce its members in executive office. dramatic results swiftly. Catering for any The implication is clear. With the extraordi- regional variation here would be viewed as not nary powers of party patronage that now prevail only superfluous, but also as an unwelcome in South Africa, subnational constitutions will obstacle. Although it could, of course, be main- emerge only if the ruling party at the time tained that securing the goodwill of the deems it to be in its best interest. And this is provinces would yield political dividends for why the ANC in the seven provinces that it the ANC should the provinces prove to be vig- commands has eschewed this option, and the orous agents of development. But having con- IFP in KwaZulu-Natal has pursued it. quered so comprehensively on the political front, why should the ANC risk compromising 3. SOCIO-ECONOMIC VARIABLES such a cherished prize? In theory, socio-economic variables can be sig- Secondly, with such a pronounced political nificant in determining the necessity for subna- mandate and the confidence that emanates from tional constitutions. This is not really so in the being firmly in charge, the interests of the ANC South African case, where the rawness of polit- are becoming blurred with those of the state. ical power comes to the fore as democracy is This tendency is fuelled by the electoral sys- still becoming established. Nevertheless, it is tem, which is the party-list variant of propor- worth mentioning the salience of certain socio- tional representation. In practice, this means economic factors which have a decided bearing that members of Parliament, as well as mem- on the public management of development. bers of provincial legislatures, are not represen- I mentioned previously that the overall man- tatives of territorially demarcated local con- agement of governance on a national scale suits stituencies. Instead, political parties decide on the ANC’s ideology of societal transformation their preferred candidates, and how they should and is the preferred way of dealing holistically be ranked. with meeting people’s and communities’ This amounts to a kind of electoral clien- urgent, basic needs. An indicative system of telism, where candidates for office are subject planning and control is articulated throughout to the patronage of their party. Given that a the state sector. political career depends on the blessing of a Cooperative governance provides the admin- ’s leadership, anyone elected to a istrative means for national government to national or provincial legislature could be for- ensure that public policies emanating from the given for placing the interests of the party centre are observed properly in the provinces above all else. Otherwise, find another party, too. It is believed that substantial redistribution another type of employment. can best be effected by a national government Furthermore, the ANC as an organisation is which has an overall view of what outcomes managed according to democratic centralism. should be realised across the country. Further- Wide-ranging participation, debate and consul- more, because the South African economy now tation is encouraged, so it is averred, as part of is far more fully exposed to global vicissitudes, the decision-making process. But once a deci- the national government has to remain ever vig-

91 Lawrence ilant to sustain development, and to accelerate 4. THE SECOND PHASE OF DEMOCRACY it according to particular needs. On 2 June 1999, South Africans went to the Extending this theme, public finance in the polls to pass their verdict on those who initiated provinces is a pertinent socio-economic vari- democracy. The ANC was met with even able as well. Whatever ambitions provinces greater approval than before. It came within a may harbour, present circumstances suggest whisker of securing a two-thirds majority in the that national government controls the public national parliament. The seven provinces that purse. The taxation powers of provinces are were theirs to govern remain so. The Western almost nil, which also limits, then, their bor- Cape will require a coalition at the helm. The rowing powers in the financial markets. True, New National Party (old wine in a new bottle) intergovernmental allocations are earmarked has conspired with all the opponents of the for provinces according to formulae adminis- ANC to keep the latter out of power there. At tered by South Africa’s Financial and Fiscal least this is the position in late June. The coali- Commission, but provinces themselves have lit- tion appears to be somewhat fragile, however, tle latitude to expand the total allocation to their united in its opposition, but not much else level. Discretionary grants remain more signif- besides. icant, but these are subject to central govern- The IFP again took the most votes in ment’s pleasure. The trend is patently obvious. KwaZulu-Natal, but it does not enjoy an A subnational constitution might extract an absolute majority. Some rapprochement with additional modicum of autonomy in policy mat- the ANC has been sought, leading to cabinet ters for provinces, but there is no indication that posts being shared in the province. Indeed, the requisite financial power will ever be torn there appears to have been a fair degree of from central government’s grasp. horse-trading between the ANC and the IFP in Finally, more of the same. Local government order to assure rewards for both. now enters the constitutional frame for the first The IFP’s aspirations seem to have been time in South Africa as a specifically designat- accommodated with positions in central gov- ed and guaranteed sphere of government. Its ernment; and the ANC has retained a signifi- major responsibility is to attend to the basic cant share of executive power in the KwaZulu- needs of citizens and communities, and to fos- Natal province. Generally, the animosity has ter development with this in mind. Consequent- declined between the two political parties, or, at ly, local government shifts from becoming least, rivalry has been tempered by the quest for merely the bottom tier of the administrative peace in the province. structure carrying out the bidding of its superi- Admittedly, the recent arrival on the scene of ors in the . Rather, local govern- the United Democratic Movement, which has ment, be this rural, urban or metropolitan, has drawn on disaffected individuals from many of to become an enterprising, active agent and cat- the other political parties, created some uncer- alyst, formulating independent development tainty, with both the ANC and the IFP having a plans and overseeing their introduction. This vested interest in defeating this interloper at the managerial brief is taking some authorities out ballot box. of the confines of city hall in search of public- In the few weeks since these general elec- private partnerships, leading to networks of pol- tions there have been reports in the press inti- icy governance. mating that talk about a provincial constitution Given such tasks, local government is an in KwaZulu-Natal is on the rise again. This increasingly important sphere of political rule. might just be rhetoric as the political parties So much so that the continuing relevance of seek to position themselves in the run-up to provinces has been called into question. After forming a new government. As I related before, all, the metropolitan areas have as much devel- the plight of traditional leaders remains opmental muscle as the provinces in which they ambiguous at best. And the endless tussle over are located. If the web of governance becomes the location of the capital of the province – ever more complex, yet coordinated and inte- Pietermaritzburg or Ulundi – continues. These grated, then the opportunities to introduce sorts of issues, while important in their own provincial constitutions might shrink even right, tend to be highlighted during election bat- further. tles. Now that the race for electoral office is

92 Lawrence over for a while, perhaps such matters will ly, that political factors would always trump recede into the background again. socio-economic ones in South Africa nowa- days. This being so, provincial constitutions are CONCLUSION relegated to being little more than a bargaining Well, I warned you: a humdrum conclusion. To chip used by minority political parties for me, the intriguing question is whether the intro- essentially political purposes. Consequently, an duction of provincial constitutions in South all-conquering ANC government has no need Africa would be beneficial for development. I for subnational constitutions which it regards as have tried to sketch the variables most relevant superfluous, and even counterproductive, in to this. But while the issues need to be aired striving for democracy and development in more fully than was feasible for me here, I kept South Africa. Political will, indeed, proves on coming back to the same inference – name- decisive.

93 Programme

Tuesday 16 March 1999

12:00–16:00 Registration

16:00–17:00 Planning meeting for speakers

17:00–18:30 Reception

18:30 DINNER Welcoming Remarks Dr Michael Lange, Resident Representative, Konrad Adenauer Foundation – Johannesburg, South Africa Conference Overview Professor Alan Tarr, Director: Centre for State Constitutional Studies, Rutgers University, Camden, New Jersey, United States Welcoming Address Justice Yvonne Mokgoro, Constitutional Court, South Africa

Wednesday 17 March 1999

9:00–10:30 Provinces, States, Länder and Cantons: Content and Variations Among Subnational Constitutions of the World Professor Ronald Watts, Professor Emeritus of Political Studies; Fellow of the Institute of Intergovernmental Relations, Queen’s University, Ontario, Canada

11:00–12:30 The Relationship Between National and Subnational Constitutions Professor Cheryl Saunders, Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne, Australia

13:30–14:45 Development of Concurrent Legislation – a New South African Perspective Advocate Dirk Brand, Director: Legal Services, Western Cape Provincial Government, South Africa

15:15–16:30 Cooperative Government, Devolution of Powers and Subsidiarity: the South African Perspective Professor Gretchen Carpenter, Professor of Constitutional Law, University of South Africa

95 Programme

16:30–19:00 Informal discussion among participants

19:00–20:30 DINNER The Other Sphere of Government: South African Provincial and Local Structures in Practice Mr Mathews Phosa, Premier, Mpumalanga Province, South Africa

Thursday 18 March 1999

9:00–10:30 Relations Between Subnational and Local Governments, Structured by Subnational Constitutions Professor Jörn Ipsen, Director: Institute for Local Government Law, University of Osnabrück, Germany

11:00–12:30 The New Judicial Federalism in the United States: Expansive State Constitutional Rights Decisions Professor Robert Williams, Rutgers University, Camden, New Jersey, United States

13:30–14:45 Controlling Competency Conflicts: Subnational Constitutions, National Constitutions and the Allocation of Authority Professor Alan Tarr, Director: Centre for State Constitutional Studies, Rutgers University, Camden, New Jersey, United States Professor Cheryl Saunders, Centre for Comparative Constitutional Studies, Faculty of Law, University of Melbourne, Australia

15:15–16:30 Where There’s Political Will, There Might Be a Way: Subnational Constitutions and the Birth of Democracy in South Africa Professor Ralph Lawrence, Professor of Government and Public Policy; Director: Centre for Government and Policy Studies, University of Natal, Pietermaritzburg, South Africa

16:30–16:45 Concluding remarks

96 Participants

Adlem WLJ, Prof. Asia B, Mr Brand S, Ms Dickinson C, Mr Department of Public Deputy Director Faculty of Law Legal Administration Administration Department of Health University of Pretoria Officer Unisa P.O. Box 828 PRETORIA Western Cape Provincial P.O. Box 392 PRETORIA 0002 Administration PRETORIA 0001 P.O. Box 659 0003 Tel: (012) 312 0753 Carpenter G, Prof. CAPE TOWN Tel: (012) 429 6595 Department of 8000 Fax: (012) 429 3221 Atakol K, Prof Constitutional & Public Tel: (021) 483 4577 25 Neset Ikiz sok. International Law Fax: (021) 483 3729 Ally G, Adv. Karaoglanoglu, Girne Unisa Legal Adviser Mersin 10 P.O. Box 392 Edwards J, Ms Gauteng Department of TURKEY PRETORIA School of Law Education Tel: (0990-357) 0003 Rutgers University P.O. Box 7710 277 6400 Tel: (012) 429 8359 5th & Penn Streets JOHANNESBURG Fax: (0990-357) Fax: (012) 429 8587 Camden, New Jersey 2000 278 1663 08102 Tel: (011) 355 0205 Davis R, Ms USA Fax: (011) 355 0148 Bekink B, Mr School of Law Tel: (091-609) 225 6625 Senior Lecturer Rutgers University Fax: (091-609) 225 6628 Anglade W, Mr Department of Public 5th & Penn Streets School of Law Law Camden, New Jersey Erasmus G, Prof. Rutgers University University of Pretoria 08102 Department of Public 5th & Penn Streets 882 Crots Street USA Law Camden, New Jersey RIETFONTEIN Tel: (091-609) 225 6625 University of 08102 0084 Fax: (091-609) 225 6628 Stellenbosch USA Tel: (012) 420 2718 Private Bag X1 Tel: (091-609) 225 6625 Fax: (012) 420 3921 Devenish G, Prof. MATIELAND Fax: (091-609) 225 6628 Department of Public 7602 Brand D, Adv. Law Tel: (021) 808 3191 Aruanno JM, Ms Director: Legal Services University of Natal Fax: (021) 883 9656 School of Law Western Cape Provincial King George V Avenue Rutgers University Government DURBAN Gallocher R, Mr 1 Sloop Court P.O. Box 659 4001 Department of Housing Atlantic City, New CAPE TOWN Tel: (031) 260 2549 & Land Affairs Jersey 8000 Fax: (031) 260 2867 Private Bag X79 08401 Tel: (021) 483 4446 JOHANNESBURG USA Fax: (021) 483 3729 2000 Tel: (091-609) 225 6625 Tel: (011) 355 4212 Fax: (091-609) 225 6628 Fax: (011) 838 8971

97 Participants

Hardeman G, Mr Lange MA, Dr Maré C, Adv. Mpenyesa T, Mr Attorney Resident Representative State Legal Adviser Education Specialist Hardeman & Associates Konrad-Adenauer- Western Cape Provincial Department of Education 106-22 Northern Stiftung Administration Private Bag X895 Boulevard, 2nd floor P.O. Box 1383 P.O. Box 16192 PRETORIA Korona, New York Houghton VLAEBERG 0001 11368 2041 8018 Tel: (012) 312 5911 USA Tel: (011) 484 7940/1 Tel: (021) 483 4328 Fax: (011) 642 4020 Fax: (021) 483 3729 Nkuna J, Mr Haynes PC, Mr (Jnr) Legal Adviser School of Law Lawrence R, Prof. Masemola GCM, Adv. Department of Education Rutgers University Director Director Private Bag X895 5th & Penn Streets Centre for Government Phagama Legislative PRETORIA Camden, New Jersey and Policy Studies Drafting & Legal 0001 08102 University of Natal Advisory Services cc Tel: (012) 312 5056 USA Private Bag X01 P.O. Box 7700 Fax: (012) 326 9128 Tel: (091-609) 225 6625 SCOTTSVILLE CENTURION Fax: (091-609) 225 6628 3209 0046 Okpaluba MC, Prof. Tel: (0331) 260 5180 Tel: (012) 663 9011 Faculty of Law Ipsen J, Prof. Fax: (0331) 260 5230 University of the North Direktor M’Belle L, Ms Private Bag X1106 Institut für Lottering U, Ms Office of the Premier of SOVENGA Kommunalrecht National Democratic the North West Province 0727 Universität Osnabrück Institute P.O. Box 368 Tel/Fax: (015) 268 2904 D-49069 Osnabrück 26 Girton Road BUHRMANNSDRIF GERMANY Parktown 2867 Phiri-Khaole M, Mrs Tel: (0949-541) 2173 Tel: (018) 387 3016 Manager: Health & 969 6169 Tel: (011) 484 5541 Fax: (018) 387 3010 Welfare Fax: (0949-541) Fax: (011) 484 5542 Lekoa-Vaal MC 969 6170 Mdumbe MF, Mr P.O. Box 368 Malherbe R, Prof Research Assistant VEREENIGING James F, Mr Rand Afrikaans Department of 1930 Office of the Provost University Constitutional Law Tel: (016) 450 3082 Rutgers University P.O. Box 1856 Unisa Fax: (016) 455 2573 5th & Penn Streets Garsfontein East P.O. Box 392 Camden, New Jersey 0060 PRETORIA Procacci S, Ms 08102 Tel: (012) 993 2557 0003 School of Law USA Tel: (012) 429 8339 Rutgers University Tel: (091-609) 225 6625 Manthata M, Ms 451 Burning Tree Road Fax: (091-609) 225 6628 Deputy Director: Policy Mojela TK, Mr Cherry Hill, New Jersey Development & Faculty of Law 08034 Kriek DJ, Prof. Facilitation University of the North USA Department of Political Department of Housing Private Bag X1106 Tel: (091-609) 225 6625 Science and Land Affairs SOVENGA Fax: (091-609) 225 6628 Unisa Private Bag X79 0727 P.O. Box 392 MARSHALLTOWN Tel/Fax: (015) 268 2904 Qose M, Mr PRETORIA 2107 Legal Administration 0003 Tel: (011) 355 4211 Mostert C, Ms Officer Tel: (012) 429 6581 State Legal Adviser Western Cape Provincial Fax: (012) 429 3414 Marabe K, Mr Western Cape Provincial Administration Principal State Law Administration P.O. Box 659 Kyriacou M, Mr Adviser P.O. Box 659 CAPE TOWN Registrar of Companies P.O. Box 188 CAPE TOWN 8000 Nicosia ROOIGROND 8000 Tel: (021) 483 3321 CYPRUS 2743 Tel: (021) 483 3884 Fax: (021) 483 3729 Tel: (09357-2) 776 400 Tel: (018) 387 3061 Fax: (021) 483 3729 Fax: (09357-2) 781663 Fax: (018) 387 3052

98 Participants

Ragan Clunn ML, Ms Soltau F, Mr Van den Berg M, Mrs Venter M, Adv. School of Law Department of Public Project Assistant State Law Adviser Rutgers University Law Konrad-Adenauer- Mpumalanga Provincial 5th & Penn Streets University of Cape Town Stiftung Government Camden, New Jersey Private Bag P.O. Box 1383 66 Anderson Street 08102 RONDEBOSCH HOUGHTON NELSPRUIT USA 7700 2041 1200 Tel: (091-609) 225 6625 Tel: (021) 650 3079 Tel: (011) 484 7940/1 Tel: (013) 759 3786 Fax: (091-609) 225 6628 Fax: (021) 689 5846 Fax: (011) 642 4020 Fax: (013) 752 2732

Raphahlelo MP, Mr Steytler N, Prof Van Doorne T, Mrs Watts R, Prof. State Law Adviser Community Law Centre VerLoren van Themaat Professor Emeritus of Mpumalanga Provincial University of the Centre for Public Law Political Studies Government Western Cape Studies Institute of Intergovern- Private Bag X11291 Private Bag X17 Unisa mental Relations NELSPRUIT BELLVILLE P.O. Box 392 Queen’s University 1200 7535 PRETORIA Kingston Tel: (013) 759 3786 Tel: (021) 959 2950 0003 Ont K7L 3N6 Fax: (013) 752 2732 Fax: (021) 959 2411 Tel: (012) 429 8468 CANADA Fax: (012) 429 3321 Tel: (091-613) 533 2080 Saunders C, Prof Swanepoel J, Mr Fax: (091-613) 533 6868 Law School Potchefstroom University Van Wyk D, Prof. University of Melbourne for Christian Higher Department of Wessels L, Adv. Parkville Vic 3052 Education Constitutional & Public Law Adviser AUSTRALIA 9 Van Rooy Street International Law Free State Provincial Tel: (0961-39) 344 6206 POTCHEFSTROOM UNISA Administration Fax: (0961-39) 344 5584 2531 P.O. Box 392 P.O. Box 517 Tel: (018) 299 1111 PRETORIA BLOEMFONTEIN Scott R, Ms 0003 9300 School of Law Tarr GA, Prof. Tel: (012) 429 8339 Rutgers University Director Fax: (012) 429 8587 Williams RF, Prof. 5th & Penn Streets Centre for State Associate Director Camden, New Jersey Constitutional Studies Van Wyk JK, Ms Centre for State 08102 Department of Political Department of Political Constitutional Studies USA Science Science School of Law Tel: (091-609) 225 6625 Rutgers University Unisa Rutgers University Fax: (091-609) 225 6628 5th & Penn Streets P.O. Box 392 5th & Penn Streets Camden, New Jersey PRETORIA Camden, New Jersey Smith E, Mr 08102 0003 08102 Director: Council for USA Tel: (012) 429 6068 USA Southern Africa Tel: (091-609) 225 6625 Fax: (012) 429 3221 Tel: (091-609) 225 6625 Rutgers University Fax: (091-609) 225 6628 Fax: (091-609) 225 6628 326 Penn Street Venter F, Prof. Camden, New Jersey Tones G, Ms Faculty of Law 08102 School of Law Potchefstroom University USA Rutgers University of Christian Higher Tel: (082) 256 5875 209A Penn Street Education Fax: (091-609) 225 6495 Camden, New Jersey Private Bag X6001 08102 POTCHEFSTROOM USA 2520 Tel: (091-609) 225 6625 Tel: (018) 299 1954 Fax: (091-609) 225 6628 Fax: (018) 299 1955

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