Presentation on theme: "DISTRIBUTION OF POWERS BETWEEN THE ORDERS OF GOVERNMENT"— Presentation transcript:
1DISTRIBUTION OF POWERS BETWEEN THE ORDERS OF GOVERNMENT
2The questionsWhat responsibilities are best assigned to the central government?What responsibilities are best assigned to regional governments?What responsibilities are best shared by both levels of government?How much asymmetry possible, or desirable?What criteria help us decide who does what?
3Organization of the session Designing the division of powersCriteria for allocating powersThe allocation of powers in practiceFocus on IraqBreakout groups
5Functions and Instruments Federal constitutions allocate responsibilityIn functional areas or spheres of government activity – education, environment, security, etc.And they allocate tools, or instruments, that governments can use to shape policy:Powers to spend and taxPowers to regulatePowers to legislate
6Powers can be allocated in different ways Exclusive powersOnly one government can act in the areaCan be exclusively centralOr provincialConcurrent powersBoth levels can act in the areaUsually subject to rules of ‘paramountcy’ – if there is conflict, which prevails?Normally, not always, centralPowers may be explicitly concurrent or implicitly (overlapping)
7Legislative and Executive Powers Legislative and executive authority can be combined or separated:Combined. The jurisdiction responsible for passing legislation in a field is also responsible for implementing itSeparated. One order of government legislates and the other order of government implementsGermany, South Africa, Spain: framework legislation
8Legislative and Executive Powers Combined system reinforces autonomy and legislative control over the executive (accountability)Separated system allows for flexible application of national norms and requires intergovernmental collaborationBut may make it more difficult for citizens to understand who is responsible and hold them accountable
9Many variationsOlder federal constitutions allocate power in very general ways; newer ones allocate powers in more detail.Residual powers: who is responsible when the constitution is silent, or when new issues, not in the constitution, arise?US – all residual powers to the states; but in fact federal Trade and Commerce power and supremacy clause go the other way.Canada: ‘Peace, order and good government’ suggests federal power; ‘Property and civil rights’ suggests provincial power. Courts decide.
11How to decide who should do what? There are several criteria that federations can use to decide on the allocation of powersThe values and preferences of citizens and groupsThe nature of the problems that governments faceThe goal of maximizing citizen participation, accountability, etc.The capacities of governments at different levelsEconomic efficiency
12Responding to preferences What are the issues or questions that citizens feel need country-wide, consistent, uniform solutions (‘’national standards’’)? These should generally be assigned to the centerExamples: Health care, Higher Education, Social Security…What are the issues where citizens in different regions have their own distinctive values and preferences? These should generally be assigned to the regionsExamples: Language policy when there are different languages
13Responding to the problems Some problems that governments face are inherently national, or cross regional. They are normally assigned to the central governmentExamples: air traffic control, defense, security. These should be assigned to the center.Some problems are inherently local. They are normally assigned to regional governmentsExamples: local schools, roads, etc.
14Responding to the problems Some problems are inherently cross-boundary problems.They have local, regional, national and even international dimensionsExample: EnvironmentThey should be concurrent, or sharedSome federal constitutions have many shared powers (Germany, South Africa, Spain); some have few such areas (Canada: watertight compartments)Reality is: in modern world most powers and responsibilities are increasingly sharedHence importance of intergovernmental cooperation
15Capacity: the ability to respond If the problem a region faces (e.g. a polluted river) is caused by the actions of another region (spillovers),orIf an action one region takes has negative effects on another (externality) --then central control is necessary. By itself no region can solve the problemIf redistribution (sharing across regions) is desired, this is also a central responsibility.Whatever responsibilities are assigned to regions, it is essential that they have the financial, political, bureaucratic and financial resources to carry them out.
17Allocating powers in practice What is the underlying process?In older federations units came together to decide who should do whatIn newer federations the process was one of decentralization from previously unitary regimes - UK, Spain, Iraq – now the decision is which powers should move to the subnational unitsOther model: the European Union:What powers to give up to the centerWhat happens with existing federations
18Allocating powers in practice The need to allocate powers in a gradual manner:Region formation takes timeNot all regions may want the same level of powers; the asymmetric modelsNot all regions may be capable to undertake the same level of powers; financing decentralization as a problem
19Allocating powers in practice Common patterns in practice:Federal government – defence, security, international relations, central bank and currency, the national economy, including regulation of inter-regional trade and commerce, the postal serviceRegional governments – health care, social policy, education, municipal affairs, economic development, local services, local economic development.
20Allocating powers in practice Where the regions are culturally distinct:Powers may be asymmetricalRegions may have powers to write local constitutions, language policies, etc.Such powers are normally subject to limits set by the national constitution and by the Bill of RightsAre highly contestedAsymmetry is more common and acceptable when it is informal rather than constitutional
21Concurrency of powersMay be broad or narrow: modern tendency is towards broader areas of concurrency.E.g. environment, public health, economic development, social servicesMay be explicit in constitution; or impliedNational vs subnational dimension in concurrency; i.e. national health standards combined with regional variation in delivery
22Concurrent powers: who decides? What criteria to decide who’s responsible? The need for paramountcy rules; the need for referees…The Residual Power: Assigns jurisdiction over matters not listed, to either the federal or regional governmentUsually assigned to the central governmentIn US to the states; in Canada: ambiguousIraq: assigned to the regions.Intergovernmental agreements vs judicial ruling (the judicialization of normal politics)
23Concurrent powers Promote cooperation But; each jurisdiction must exercise it in a limited mannerThe Aushölhung problem, or the problem of one subnational entity “emptying” the others field by extensive regulationThe contradiction problems; the need for a coordinate action in overlapping matters (i.e. tourism/environment)
24EmergenciesEmergency Power: Exists in some countries. A federal power to override provincial jurisdiction in certain circumstances. Needs to be carefully limitedIn new federations, when regions unable to carry out responsibilities – provisions for central government supervision, monitoring, intervention
25Two models: Canada, Germany Canada: “watertight compartments”List of federal powers, list of provincial powersFew areas of legal concurrency – but many in factEach independent in own jurisdictionGermany: integrated, shared federalismMost areas concurrentFramework legislation
27Distribution of Powers in the IC General clause; (may be expanded in the future?)Article (107): The federal authority will maintain the unity of Iraq, its integrity,independence, sovereignty and its democratic federal system.
28Distribution of Powers in the IC List of powers: some exclusive federal powers (sec 108)foreign policy, international agreements, trade policy…national defence policyfinancial and customs policy, issuing currency,…Nationality,Communications (mail, wavelengths…)Water resources from outside IraqCensus
29Distribution of Powers in the IC Shared powers (sec 112)administering and organizing customs, in coordination with the regional government, and this will be regulated by law.organizing and distributing the main electrical power resources.drawing up environmental policy to guarantee the protection of the environment from pollution and the preservation of its cleanliness, in cooperation with the regions.drawing up general planning and development policies.drawing up general health policy, in cooperation with the regions.drawing up general education and childrearing policy, in consultation with the regions.
30Distribution of Powers in the IC - Few exclusive federal powers; residual powers to regions, as well as paramountcy ruleArticle (111): All that is not written in the exclusive powers of the federal authorities is in the authority of the regions. In other powers shared between the federal government and the regions, the priority will be given to the region's law in case of dispute.
31CRC on Distribution of Powers in the IC CRC report: Expands federal powers, such as:… universities and institutes, federal power system, federal railways, pension fund, state liabilities, regulating work and safety standards in the oil fields and mines, protection of environment, air and water pollution, national surveys such as geological, plants, animals and forecast surveys, national and international highways and nuclear power
32CRC on Distribution of Powers in the IC …and inserts emergency clauses“The regional government has the right to resort to federal armed forces and security forces to keep discipline in the region and protecting it from aggression or natural disasters.”“The regional government shall take the necessary actions to implement federal laws, international treaties and protocols signed by federal powers and these powers have the right to oversee the implementation”
33UNAMI viewWorries that the central government will be too weak because of:Short list of federal powersRegional paramountcyRegional residual powersInsufficient attention to regional capacityUnclear distinction between regions and Governorates
34Questions for the breakout groups Each group is assigned one important issue, and each is asked to recommend how responsibilities should divided between central and regional governments; the issues are:Higher EducationEnvironmentHealthEconomic development
35Assignment/2 For each issue: Should it be federal Or regional Or shared?Can it be divided, so some aspects are federal, some shared?Is asymmetry acceptable or desirable in this area?