Venice Seminar 2006

Session Report

Federalism, Devolution and Region Building

Who has responsibility and competence over what?

The discussions provided an opportunity to investigate, exchange views and shed light on controversial or unclear aspects of federalism. As there is no single ‘one size fits all’ model of federalism, a federal system must take into account the elements that are germane to the situation in the country where it is to be applied. The visiting experts led discussions, using the experiences of their respective countries as a starting point and as a way of grounding the subsequent exchanges on an understanding of the possible practical implications of certain federal choices.

The first discussion focused on the distribution of competences and responsibilities, particularly how they are assigned and how to ensure sufficient checks and balances. There can be various approaches when assigning competences and responsibilities: one, described as a “big bang”, in which powers are assumed all at once by all regions as the result of a constitutional review, alternatively those can be the result of a gradual process, through negotiations over time, and frequent reform of the role and competences and the principle of sufficient means and capacities. Positive and negative aspects of various systems were described, highlighting methods that could be beneficial to the Iraqi system and noting some of those that would not be useful.

South Africa

The discussion of South Africa’s loose federal system (which has a clear division of powers among the three levels of government) highlighted the factors that make for its strong central government. Authority over justice, defence and supply of water, among others, falls under central control, while in many sectors, such as education and health, authority is held concurrently by national and provincial governments, and provinces administer national laws on concurrent matters. Participants were interested to note that the central government has the responsibility to intervene in instances when provinces are unable to provide services that they would normally be responsible for. In the event of conflict regarding a concurrent matter, national legislation prevails if it is deemed necessary to maintain an effective government or if it sets national norms and standards. Such conflicts are dealt with in the first instance through negotiations, and, if still unresolved, by the Constitutional Court. Participants discussed the possibility of future claims on aspects of provincial powers, an element which is allowed for in the South African system. 

Virtually all revenue is raised by the national government. Provinces have very limited power to raise taxes, but do have a constitutional right to an equitable share of national revenue based on population, needs, and other criteria (as do local governments). Distribution to provinces is weighted on the basis of a poverty index and in favour of children under the age of thirteen and the elderly. There is an incentive for provinces to encourage economic growth and not rely on support from the national government.

The discussion turned to a consideration of how the South African experience might benefit the Iraqi system. While a loose federal system with a strong central government may not be ideal in the Iraqi context, participants were keen to keep in mind elements such as the intergovernmental relations, particularly the Constitutional Court, for resolving conflicts between the different levels of government.

Canada

In its administrative aspects, Canada was thought to provide an interesting model for Iraqis to consider, as it is one of the most de-centralised federal governments. When conflicts do arise between national and provincial legislation, though, the former normally prevail: while provinces are ‘symmetrical’, in that each has the same responsibility, participants were interested to note the ‘asymmetrical’ exception in respect of Quebec, which may retain laws inconsistent with national legislation in certain circumstances.

Responsibilities at the different levels are allocated according to certain principles and criteria: issues concerning defence, foreign affairs and other areas of more obvious national concern are federal responsibilities; provinces have responsibility for local problems such as, transport or water supply. However, if one region’s decision imposes a burden on another (for instance diverting or polluting a river) it would be considered a national issue. Redistribution and sharing of wealth or resources in social policy (for instance, pensions) also requires that national standards be set.

Canada is not officially a bilingual country, but due to a combination of factors (text in the Constitution, recent law and practice) French and English are the dominant languages.

Spain 

Spain presents an ‘asymmetrical’ model in its seventeen ‘autonomous communities’: the ‘Foral’ regime (which applies in two communities which historically had autonomy – i.e., Basque Country and Navarra) and the ‘common’, (in the others). The former have broad taxation powers, and make payments to the central government, while the latter have limited taxation powers, and receive transfers from the central government based on need. Language remains an unresolved question.

A system that allows responsibilities to be shared (and participants further noted that clearly shared competencies lead to a form of cooperative federalism) is sensible in a country that has been subjected to dictatorship for many years. It is not highly centralised, nor is it a closed system: the three ways of obtaining new powers are by constitutional reform, via statutes of autonomy reform delegation or by transferral of new authority. However, the system was considered unstable or uncertain as there are ongoing disputes about which powers are national and which fall under the authority of the autonomous communities. The discussion turned to how the Spanish model is relevant when considering the Iraqi situation: in particular, how to avoid establishing a system that is susceptible to this sort of instability, by making clear decisions from the start about which competencies should be allocated to the central government or to the regional/provincial governments.

Iraq

The examination of this potential for instability or uncertainly led to discussion about what was considered a common misconception - in fact, a serious concern - among some Iraqis that a federal system might lead to the partition of Iraq. The concern is that on the one hand a ‘strong’ central government would provide more guarantees for unity: this is mirrored by a concern that excessive power to the central government might provide an opportunity for recurrence of the abuses of the past. Considering experiences of other countries could facilitate the creation of a system in Iraq that will both address and allay the current uncertainties, by defining a federal system where competences and responsibilities are allocated to the central, regional, provincial and municipal authorities according to which can serve the different needs of the citizens. The federal structure would thus provide a framework for national unity, based on shared responsibilities.

Some participants noted that in a federal system minorities within regions might be vulnerable and lack protection. To address this danger, mechanisms must be implemented to ensure that minority rights are protected and that regions do not become homogenous. Participants suggested that the Constitution should specify the process of regional formation, whether there is a limit to the number of regions that can be formed and whether regions, once formed, can be dissolved.

In the course of the discussion of experiences of other federal countries, participants generally agreed on various fundamental elements: formation of partnerships on national, regional and local government levels and that it was necessary to find a common ground on how to form such partnerships; the need for mechanisms for intergovernmental relations; the need for an effective ‘umpire’ to resolve issues that cannot be resolved amongst the governments, (for instance a authoritative and respected Supreme Court); the need to discuss the role of a second chamber which would represent the interests of the regions and communities; the need for a system of checks and balances and the need to focus on legal and administrative measures and anticipate problems that could arise between different levels on distribution of resources and other issues.