The Concept of Federalism


FEDERAL PRINCIPLES: A Comparative Study
A. Introduction

The origin of the concept of federalism comes in various approaches. Dicey stated that federalism is a national constitution for a body of states which desire union and do not desire unity. He described a federal state as political contrivance intended to reconcile unity and power with the maintenance of state rights. The essence of a federation is the existence of union and its states and the division of power between the union and the states and it is immaterial whether the bond of the union is strong or week.

Political integrity of union and each state seems to be essential to the federal concept. In one of the encyclopedias federal was brought out as a mode of political organization that unites separate states to allow each to maintain its own fundamental political integrity. Federal systems do this by requiring that basis policies be made and implemented through negotiation in some form, so that all the members can share in making and executing decisions; they stress the virtues of dispersed power centre as a means for safeguarding individual and local liberties.

Misconception can also arise if one overlooks or underrates the importance of federal principle, namely constitutional distribution of power and diverts one’s might modify the scheme of distribution in special situations or to other peculiarities of the country’s constitution. A true federation contemplates that the political system must reflect principle by actually diffusing power among a number of substantially self-sustaining centers. This is sometimes called non-centralisation. But non-centralisation is different from decentralization. In the latter, there is a conditional diffusion of specific power, but it is subject to recall by unilateral decision. It is also different from ‘devolution’, in which a central Government grants power unilaterally to sub-national units. Non-centralisation in exercising political power cannot be taken away from the general or state governments without common consent. Federalism is intended to preserve self-government.

United States as the oldest federation, the separate existence of the states cannot be impaired, unless the constitutional is thrown away. It is an indestructible union of indestructible states. In Canada whose federal status was doubted for sometimes, the distribution of legislative power is a constitutional mandate and is immaterial that there is learning in favour of centralization. These separation of two legislate domains is shown by the fact that the Canadian parliament cannot legislate on matter in the provincial list except in special cases. In Australian parliament of the Australia Commonwealth under Section 51 and 107 of the Australian Constitution has only the enumerated legislative power, while the residuary power remains with the states. A dual government with coordinate powers is very much in existence and in fact preamble to the Commonwealth of Australia Constitutional Act, 1900 uses expressions implying the federal element. In Switzerland the states have separate constitution of their own which are guaranteed by the federal constitution. But at the same time the Constitution in Articles 5, 14, 15 to 17 contains enough provisions to ensure that federal provisions in the constitution are maintained.

B.1. Importance of Federal Principles in United States

The federal principle in a federation has two aspects – national unity and state right. This implies a rigid constitution, the amendment whereof should as a rule, involve the union as well as the states. The United States constitution achieves this by providing that when amendments are proposed by federal legislature in constitution, three-fourths of the states must ratify the amendment before the amendment can become effective. This procedure is mandatory. It also guarantee to every state in the union a Republican Form of Government and shall protect each of them against invasion, and on application of legislature or the executive (when legislature cannot be convened) against domestic violence. There is also prohibition against states entering into any treaty, alliance or confederation or any agreement or compact with another state or with a foreign power without the consent of Congress.

United States (unlike India) only one legislative list enumerated the powers of the Union and the remaining subjects are left to states (except matters expressly prohibited by the constitution to the States). This is made more clearly by tenth Amendment. The power not delegated to the United States by the constitution, nor prohibited by it to the States are reserved to the states respectively or to the people.

Executive authority of the union and that of states in United States runs in parallel streams. However indirect federal control over state administration may come to be exercised where the federal government has made ‘conditional grant’ to the states.

The United States carries on the principle of dual sovereignty into judicial system also. There is a dual system of courts. Unlike India, US does not have a provision for inter-State Council. But the Governor’s Conference, presided over by the president of US, serves as a medium for discussing matters of common interest. Besides this, a statutory body-the Inter-State Commerce Commission-which was set up under federal law of 1887, performs important functions connected with Inter-State Commerce.

B.2. Importance of Federal Principles in Australia

The Australian federation was set under Commonwealth of Australia Constitution Act, 1900 whose preamble uses the words “Federal Commonwealth”. Before 1900, the colonies in Australia had (since 1850) their own constitutions still survive, subject to the provisions of the federal constitution. Division of powers between the states and union is maintained by special provisions requiring special procedure for amendment, including a referendum of electors of the Australian House of Representatives. Unlike American Constitution, Australian Constitution has no express prohibition against an individual state entering into a treaty. But the exclusive power of legislation on ‘external affairs’ is entering given to the Australian Commonwealth.

In Australian Constitution topics enumerated in the constitution as within legislative competence of parliament of the commonwealth of Australia, some are regarded as exclusive powers of the commonwealth, while rest are regarded as concurrent powers of the Commonwealth and states. The Exclusive powers are: seat of Government of Commonwealth, places acquired for public purposes, federal public services, customs, excise, bounties, surrendered territory, navel and military defences and forces and coinage – this had led to indirect emergence of concurrent list in Australia under Section 107. Inconsistency between federal and state law on concurrent matter is to be resolved by applying section 109. Executive power in Australia is vested in Governor-General for Commonwealth. However it seems that the Commonwealth can spend its finances even on matters assigned to the states.

Australia does not have a system of dual courts for disputes under Commonwealth legislature and disputes under state legislation respectively. But disputes between the two are exclusively within original jurisdiction of the High Court of Australia. Under section 105 – Australian Loan Council has been set up to regulate public borrowing, not only through federal loans but also through state loans raised in the name of and on the security of commonwealth. By regulating public finances, the council can function as an effective body for union-state coordination, particularly because the loan agreements are justiciable.

B.3. Importance of Federal Principles in Canada

The Canadian constitutional scheme, so far as federal aspects are concerned, is primarily contained in British North America Act, 1867. Though Canada Act, 1982 have made important changes, it did not radically alter the federal pattern. The preamble to the British North American Act, 1867 uses the words ‘federally united’, thereby leaving no doubt that what envisaged was a federation. In the scheme of Canadian federation the provinces have legislative power only for limited purposes and the rest of the subjects fall within the legislative competence of the federation. The province of Quebec has for reasons of history been given very limited power to enter into treaties with foreign nations.

Section 91 of the Act of 1867 gives the Canadian federation exclusive power to legislate on 30 enumerated subjects. Section 92 assigns certain subjects to the states. But section 91 further provides that the federal parliament can legislate for the peace, order and good government of Canada in relation to matters not enumerated in section 91. Even where a matter does not within Section 91 as per enumerated topics, it may still fall within federal competence, if it falls within section 91 by reasons of national importance, special emergency or general advantages of Canada because then, in one aspect, it would affect peace, order and good government in Canada.

In Canada, there is no dual system of courts for adjudicating upon disputes under federal and provincial laws. The Constitution does authorize the federal legislature to create additional courts for federal law. The legal system in most provinces of Canada belongs to the common law fold. But Quebec, because of French ancestry, is governed by civil law system in substantive law, and Quebec civil code largely follows the code of Napoleon. The highest court of appeal in Canada is the Supreme Court of Canada, it has exclusively original jurisdiction in disputes between the federation and province or between one province and another.

The Constitution of Canada does not province for Inter-State council, the Dominion-Provincial Conferences which are informal bodies, do useful work, including the evolution of financial and administrative agreements.

C. Mutual Obligations between Federation and States

Obligations falls under the following categories: a) maintaining each other’s survival; b) maintaining the form of government prescribed by the constitution; c) maintaining the federal alliance; and d) respecting each other as parallel governments and treating all states equally.

It is essential consequences of the creation of a federal state that there will be parallel governments in treating the country. The existence of parallel governments pre-supposes that constitution must ensure that these parallel governments may be allowed to function without interference from each other, except in special situations envisaged by the Constitution. It is also desirable that each state should be treated by federation equally and at par with every other state of the federation, unless there are special reasons to the contrary.

If federation is expected to maintain the existence of the states and their constitutional order, the state sin their turn are also expected to maintain the federal alliance. Thus there are many federal constitutions express provisions prohibiting secessions.

D. Conclusion

In spite of different ways of carrying out federal system in various federal countries, particularly US, Australia and Canada, all falls under a federal system in one way or the other. In fact the federal system mainly focused on division of powers between the Central and State governments. Each federal country has got its own unique style of presenting their federal system.

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