DEFINING SUB-NATIONAL CONSTITUTIONALISM
Before one can study the interplay of federal and subnational constitutions, however, one must consider what qualifies a document as a sub-national constitution. In some federal systems – for example, Australia, Austria, Germany, and the United States – the question is easily answered.
In each federation, distinct identifiable documents structure political life in its constituent units. In other federal systems, such as Belgium’s and Nigeria’s, the question is likewise easily answered, though for a different reason: there are no documents distinct from the federal constitution that perform that function.5 However, in some federal systems the answer is not so clear. For one thing, in some systems constitutions are not enshrined in a single document. In Canada, for example, several documents make up the federal constitution, and the same is true for provincial constitutions. Thus, there are elements of provincial constitutions in Part V and in other provisions – for example, Section 133 – of the Constitution Act of 1867.6 Other elements are found in the Charter of Rights and Freedoms – for example, Section 5 mandates that provincial legislatures must sit at least once every twelve months. Still other elements can be found in ordinary provincial statutes, such as electoral laws, bills of rights, and so forth. Indeed, some provincial laws are even denominated by the term “constitution” – for example, the British Columbia Constitution Act.7 And unwritten elements of provincial constitutions, such as responsible government, are enshrined in constitutional conventions.The situation is further complicated by the emergence of supra-national entities such as the European Union. In some ways the interactions between the national governments of EU members and the EU resemble those between federal governments and their constituent units.
The relationship between the sixteen länder governments represented in the Bundesrat (Federal Council) and the federal government in Germany is often used by scholars of comparative federalism to illustrate this point. Beyond that, the constituent units of federations find themselves subject to two levels of authority – they can violate neither EU law nor national law in the constitutional arrangements they devise or the policies they pursue. Yet because sub-national units perform a consultative role in the formulation of EU policy through the Committee of the Regions, the flow of influence is bottom-up as well as top-down.Finally sub-national constitutions might be different in kind from the national constitution. For example, are the “Autonomy Statutes” of the Autonomous Communities in Spain and the basic laws in China governing Hong Kong and Macau constitutions or not? They certainly exhibit attributes of constitutions, structuring political life within constituent units, but that term is studiously avoided in both countries.8 In Italy, would part of the move toward decentralization, including even the possibility that the regions would participate in the drafting of their “Statuti,” qualify as subnational constitution-making?9
Asymmetrical federal systems pose a particular difficulty in this respect. Some federal systems allow only some constituent units to devise sub-national constitutions – for example, the Indian Constitution permits only one state, Kashmir, to have its own sub-national constitution. Others have special arrangements for some constituent units for historical reasons. In Italy, for example, even before the current movement toward some sort of federal arrangement, the province of South Tyrol enjoyed a much wider range of autonomy than did other regions, based on the international agreement that brought this territory from Austria to Italy after World War I.10 Other federal systems grant different constitution-making authority to various constituent units. For example, by statute the United States Congress has authorized some territories, such as Guam and the Virgin Islands, to draft their own constitutions.
But unlike the states, these territories are obliged to submit their proposed charters to Congress for approval or revision before they can be submitted to their residents for ratification. Native American tribes can also devise their own constitutions, but both congressional legislation and their status as “internal dependent nations” effectively circumscribes the range of constitutional choice available to them.11The early years of Russia’s federal system illustrate how complex matters can become.12 Under the Federation Constitution, six different types of subnational units – republics, oblasts, krais, autonomous oblasts, autonomous okrugs, and federal cities – composed the Russian Federation. Although the Constitution proclaimed the equality of its then eighty-nine component units, each type of unit had its own distinctive status and powers. Among the factors differentiating republics and oblasts was the fact that a republic had legal authority to devise its own sub-national constitution, whereas an oblast could only adopt a charter (ustov). Yet these charters resembled constitutions in many respects, raising the question of whether, for purposes of analysis, they were to be treated as sub-national constitutions. Beyond that, the president of the Russian Federation could enter into treaties with the executive of a component unit to reallocate powers between the national government and that unit, and President Boris Yeltsin entered into numerous such treaties. Once again, should these treaties, which in important ways altered the powers of sub-national units, be accorded constitutional status?
The situation became even more complicated during the presidency of Vladimir Putin. Under Putin seven “federal districts” were created and superimposed on the existing federal structure, with presidential appointees chosen to lead each of the new units. In addition, changes in the formation of the Federation Council and federal supervision of regional executives and parliaments created a far more centralized federal system, raising further questions about the scope and importance of sub-national constitutional space within the Russian Federation.13
Although the complexities of the Russian Federation may be extreme, the problem of determining what qualifies as a sub-national constitution is likely to arise in most asymmetrical federal systems.
Should the determining factor be whether the federal government or the sub-national unit has the legal authority of enactment? Or might it involve the range of discretion available to those within a sub-national unit in designing their governmental processes and institutions? This latter criterion implies that it might be useful to think of sub-national constitutionalism in terms of a continuum rather than a definition. Suffice it to say that for the purposes of this volume, we have opted for a capacious understanding of sub-national constitutionalism, one reflective of the diversity of current and developing political practices.14