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Number 4(8), autumn, 2003
Number 8 of the journal Kazan Federalist (in english)
KAZAN CENTER
OF FEDERALISM
AND PUBLIC
POLICY
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Distribution of competence in a federal state: comparative aspect
 
 
 

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  • Milena Gligich-Zolotareva
The distribution of powers is stipulated by the Constitution of the Russian Federation as one of the principles of a federal state. However, the process of distribution of competence has only recently begun to attract more attention on the part of the authorities, being a natural result of the functioning of the Presidential Committee on Preparing Proposals Concerning the Distribution of Powers between Federal Bodies, State Bodies of the Subjects of the Russian Federation and Local Authorities.

Milena Gligich-Zolotareva*

Distribution of competence in a federal state: comparative aspect

The distribution of powers is stipulated by the Constitution of the Russian Federation as one of the principles of a federal state. However, the process of distribution of competence has only recently begun to attract more attention on the part of the authorities, being a natural result of the functioning of the Presidential Committee on Preparing Proposals Concerning the Distribution of Powers between Federal Bodies, State Bodies of the Subjects of the Russian Federation and Local Authorities.[1] The preparation of drafts which were promoted to a higher, legislative level became an important stage of the Committee's work,[2] and this has already caused widespread social and political discussion on the prospects of modernization of the federal system in Russia. Therefore, considering the foreign experience of power decentralization is of much relevance here.

The distribution of powers between different levels of public power in particular, between the federation and its subjects is one of the most complicated problems and therefore not yet finally solved either theoretically or practically. Distribution of competence refers rather to the factors of dynamics of the federal relationship, because it affects the system of checks and balances in the vertical distribution of power. Today, it has become quite obvious that as a legal, social and political institution, federalism makes sense only if the subjects of the federation are able to meet the needs of their populations. This by no means denies the basic postulates of the theory of federalism but, on the contrary, imparts a deeper sense to it[3].

A major part of the relationship between bodies of power of different levels in most federal states is based upon the distribution of powers and their implementation in practice, what makes federalism a system of partly coinciding jurisdictions and division of powers, that meets the criterion of democratic government to a much greater degree than the system of bureaucratic administration impending over the society.[4] As a result of such an approach, the constitutions of the majority of federal states contain detailed lists of powers. In this regard, India is the leader here, for its constitution (including its appendices) has a list of powers that consists of more than 200 items[5]. But often (as in the case of India) such a large number of details produces the opposite effect the distribution of competence becomes more and more complicated and casuistic.

The distribution of powers has a considerable influence not only on the actual state of the relationship between the center and regions but also on their statutory as well as constitutional legalization.

1. Means of distributing powers

As a rule, the distribution of powers in federal states is controlled by the law of a nation and its constitution. There exist different ways of constitutionally legalizing this or that model of the distribution of powers. Which one is used in a particular state depends both on the nature of its federal system and the traditions inherent in that particular country. In our literature on law, several different typologies have been utilized to elaborate the means of distributing powers. They include:

Division into two categories, dualistic and cooperative, which in its turn is subdivided into smaller types (the criterion here is presence or absence of the sphere of joint authority);[6]

Division into three categories, dualistic, the method of two exclusive domains of competence, and a trinomial method (criterion the number of subjects having the competence);[7]

A second means of division into three categories, in which the so called delegated authorities are owned either by the center, by the subjects of federation or both by the center and the subjects of federation (criterion constitutional assignment of the list of objects of authorities and of powers to this or that subject of legal relationship)[8];

Division into five categories (criterion the number of authority-holding subjects and the actual presence of areas of joint authority).[9]

Analysis of the existing methods of constitutional and legal determination of the various models of distributing powers makes us think that any typology of dividing competencies, though certainly being valid, is quite relative. Both legal and practical aspects of the distribution of competence in each particular state have their own specific character, which can hardly be systematized. And as a result any classification, which assigns a state to a particular category will be methodological rather than revealing the essence of the relationship. This conclusion is confirmed by the inconsistency found in the literature concerning the issue of ascribing specific national models of competence distribution to some certain types.

The following is an attempt at a comparative classification of different means of distributing authority and powers. It includes the six most widespread combinations and generalizes the already existing approaches to this issue. The critical criteria for this typology are the following: which subjects have powers (federation, subjects of federation); the presence or absence of a sphere of joint authority; and the method of constitutionally and legally determining the distribution of powers (i.e., a positive one in which powers are assigned directly to the various levels or agencies of government, and a negative one in which activities are proscribed to levels of government rather than delegated to them).

1. The one-link pattern, in which the distribution of powers is exercised by assigning exclusive competence to the federation (Tanzania,[10] Ethiopia,[11] Switzerland[12]), with the implication that other powers are reserved to the federations constituent units. The pattern of relations between the center and cantons in Switzerland was somewhat different until 1999. Today, however, according to Clause 3 of the Constitution of Switzerland, all the powers of the federal government must be formulated in the Constitution. Since the competence of the cantons is supplementary, it is not mentioned in the text of the Constitution.

2. The combined pattern[13]. This pattern of distribution of powers implies that the powers of each level of government and those which are concurrent are fixed in the constitution (the Russian Federation, Nigeria, Pakistan[14]). This pattern is notable for the difficulty of distinguishing between the spheres of joint and exclusive competence in the subjects of the federation. Formally and constitutionally, these spheres are differentiated, but in practice the border between them is usually drifting.

3. The two-link pattern. Here distribution of powers is exercised by means of assigning powers to the federation and its subjects (Canada and Switzerland[15] until recently). Historically, this pattern is perhaps the earliest model of the distribution of powers in the federative state. At present, the majority of federal states, which had utilized this pattern during an earlier stage of their history, have chosen new, more optimal models of distribution. The two-link pattern of power distribution can be characterized best by the statement of the prominent Russian lawyer N.M. Korkunov that the principle of distribution of powers is rather theoretical, it is the differentiation of more or less abstract notions. It is impossible to enumerate all the separate cases concerning authority Doubts and differences are inevitable here.[16]

4. The three-link pattern implies distribution of powers by means of fixing the powers of the federation, those of the subjects of the federation and concurrent powers (Brazil,[17] the Federal Republic of Germany, Austria, India, Malaysia). This is the most difficult method of distributing powers. An advanced state of legal and economic development in a certain state do promote its implementation (as in Germany and Austria), while the purely formal assignation of powers to the subjects of legal relationships leads, as a rule, to a confusion in the legislative system, accompanied by a disproportionate consolidation of power in the federal center.

5. The two-link negative pattern implies a distribution of powers by the means of assigning powers to the federation and its subjects and at the same time the restriction of their utilization of other powers (as in the USA). Federal powers are fixed by the Constitution, which establishes the exclusive jurisdiction of the Federal Congress in certain areas of legal relations (issue 8, clause 1), and the residual competence of the states is limited by prohibitions on a number of actions (issue 10, clause 1).[18] However, the American Constitution is much more complicated and ambiguous than it might seem at first. One can find there as well the sphere of concurrent powers, a list of prohibitions not only to the states but to any level of government, and even common prohibitions, which make the distinction between the powers of the states and the federation even vaguer.[19]

6. The predominantly negative pattern presupposes a distribution of powers mainly by the means of imposing prohibitions on the subjects of the federation (Argentina, Mexico). Issues concerning the distribution of powers are covered in several articles of the Argentine constitution, but for the most part they only comprise lists of things which provinces are prohibited from doing.[20] In Mexico, the distribution of powers is also specified by prohibitions on states.[21]

A bit different is the Belgian model of the distribution of powers. Powers in the Walloon and Flemish regions are exercised by elected provincial bodies; in the bilingual area of Brussels (the capital) by the French and Flemish communities and the Common Commission of Communities, each dealing with the issues of their own competence according to article 59, while all other areas are under the jurisdiction of the Brussels region.[22] This is a case in which some subjects have a form of joint competence (the French and Flemish communities and the Common Commission of Communities); this feature of joint competence can be seen both vertically (in the federation-region relationship) and horizontally (in the relationship between communities and the Common Commission of Communities in Brussels).

This tendency in distribution of competence can also be seen in the experience of decentralization in Spain. But first a reservation should be made that although Spain is not a federal state in the full sense of the word, the Spanish pattern of distribution of powers could be utilized in a federation. Two lists of competencies are fixed by the Constitution of Spain[23]: that of Spain (the state proper) and of regional autonomous communities (articles 148, 149 of the Constitution). At the same time, the list of powers granted to the regions is not a flexible one, that is, it can (and is) be corrected by regional statutes, which can reduce or extend the sphere of power. According to the Part 2, Article 148 of the Constitution of Spain, regional autonomous communities can extend their powers to a level commensurate with that of the state by changing their statutes. On the other hand, autonomous regions may relinquish a measure of competence for a number of reasons, without fixing them in their statutes. In this case, the state takes over the responsibility.

Thus, the statutes of regions become a kind of supplement to the national Constitution, establishing the competence of regions asymmetrically, and the law of the state complements the law of regional autonomous communities (Part 3, Article 149 of the Constitution of Spain). The special position of such statutes in the hierarchy of statutory acts is secured by a rather complex process for adoption and approval, which involves such bodies as the Assembly of Parliamentarians, the Constitutional Commission of the Congress, as well as the population of the regions and the General Cortes. After a statute is approved by the Cortes, the king ratifies and promulgates it as a law (Part 4, Article 151 of the Constitution of Spain).

2. Means of correcting constitutional models of distributing powers

Even the most accomplished scheme for distributing powers stated by a states principal law often fails to meet the daily exigencies of the constantly changing relationship between the center and regions; therefore, it is often subject to extensive legislative and executive correction and which at times transforms the essential features of the pattern. In what follows, some of the means of correcting a constitutional model for distributing powers are adduced.

Distribution of residual powers. Stating powers in the constitution fails in most cases to guarantee their control and distribution. Thus, the character of practically all existing models of distribution is conditional. There is almost always a risk of the appearance of residual powers. Traditionally, two basic models of distributing residual powers have been prescribed: the centralized model, in which residual powers go to the center and decentralized model, when such powers are reserved to the subjects of the federation. The decentralized model is exercised in the USA. Its Constitutions Tenth Amendment, adopted in1791 says that the powers 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. But the overall tendency in distributing residual powers is in favor of the federal center.

The redistribution of powers from the subjects to the center takes place, as a rule, through the creation of open federal and closed subjects lists of powers in constitutions. For instance, the Constitution of Canada contains the lists of powers belonging both to the Federation and states. However if the list of the states is ultimate and can be modified in no way, then the list of exclusive powers of the Federation can be extended according to so-called constructive authorities. This, of course, makes Canadian federalism more centralized. A similar situation can be seen in the Federal Republic of Germany, as well as in India, where the same principle of distribution the principle of so-called initial competence is used.

Germany, Mexico and India all have constitutional provisions which reserve powers to the central government in this manner. According to the German constitution, the federation takes part in fulfilling the tasks of the lands if they are important for the whole nation, and participation of the federation is necessary for rise in living standards.[24] In Mexico, the federation and states may come to an agreement on the basis of law that the federation can itself take over the exercise of the functions of states, implementing certain tasks and providing social services, if economic and social development require it.[25] In India, any issue, including those that concern the powers of states, can be assigned to the central government by decision of the Upper Chamber of the parliament.[26] Thus, federal bodies obtain vast opportunities in distributing constitutional powers.

Centralization tendencies may be found in some other federations as well. For instance, according to the Constitution of Switzerland of 1874, the federal government could exercise a specific power only if consistent with the Constitution. The situation changed with the adoption of a new constitution in 1999. Under Article 42 of the Constitution, the federation assumes control over those issues that require a uniform approach throughout the country. In practice, this means that federal bodies (first of all legislative ones) can take independent decisions on the degree of competence given to the federation in every case. In other words, the decision of the extent to which federal competence may be exercised in a given area, if the constitution does not specify it, remains under the exclusive jurisdiction of the central government, and this increases the centralization potential of Swiss federalism.[27] Thus, perhaps the absolute supremacy of the federal legislator is admitted almost everywhere.[28]

Constitutional precedent. A specific model of according additional preferences to the federal center by means of constitutional precedent developed in the USA, where the redistribution of powers in favor of the federal center has implemented according to the decision of the Supreme Court in the Garcia case and the necessary and proper clause of the U.S. Constitution.[29] Through the establishment of precedent, the Federal Congress can intrude into fields of competence which had previously been the province of the states. Of great importance is also the doctrine of involved powers supported by the Supreme Court, which allows the distribution of powers to take place in the interests of the state.

The pattern of redistributing powers based on agreements is widely used in many federal states. This is one of the most optimal ways of correcting the constitutional model of distribution of powers. But as a rule, its effectiveness is strictly restricted by the very structure of the federal state. Contract law can be applied efficiently only under following preconditions:

The presence of a rule of law in the state system which includes the respect of federal authorities for legal norms adduced in contracts, and a high standard of lawful culture of the society on the whole: 1) A states steady tendency toward the solidarity and cooperation of all the branches and levels of power, and no irresoluble confrontations between them either in the state or in society; 2) A tendency toward the decentralization of power, resources and responsibilities; 3) A sufficient number of elements of asymmetry in the structure of the federation.

Experiences in countries which have utilized the contractual distribution of powers has been quite ambiguous. This pattern presupposes the permanent activity of all the branches and levels of government in adjusting the interests of federation and regions. A not insignificant role is played in this regard by the judicial authorities, for arguments about competence provide for the dynamics of federalism. An agreement is not a cure for all troubles but not their first cause either. It is just a means of normalizing the federal relationship and is utilized in many federal states which should not neglect it today.

3. Assessing the advantages and disadvantages of various patterns of power distribution

Each of the above-mentioned patterns of distributing powers has both strengths and weaknesses. For instance, the one-link pattern, which is in theory designed to restrict the province of the center, in practice often results in a considerable tendency toward the accrual of power by the federal government. This is especially true when the list of central government powers is not a closed one. So in practice, federal statutory acts are passed which dominate the acts of the subjects of the federation and which concern almost any social issue.

The two-link pattern, although it protects the subjects of the federation against arbitrary intrusion of the center, leaves open the issue of residual powers, which increase considerably with this pattern. Within the combined pattern, the field of joint powers can be clearly distinguished, but the problem of distributing the fields of joint and exclusive powers of the subjects of federation remains open.

And finally, though the three-link pattern might seem to regulate all of the issues of the distribution of competence in detail, in practice, it often becomes a deficient and casuistic system which is inconvenient for everyday use. The problem of powers which are omitted from the list for some reason is also unresolved. Stipulating prohibitions as a means of distributing powers only hampers the understanding of already intricate rules.

Thus, the existing patterns of distribution of powers remain everywhere imperfect both conceptually and practically. Their common problem lies in the double exercise of powers and deficient constitutional and legal regulation of their distribution. Therefore, in practice, it is difficult to determine which level of authority is accountable for exercising certain powers.

The most complicated, and as a result the most elaborated, model of the distribution of powers which contains both vertical and horizontal distribution can be found, from our point of view, in Austria. According to the Austrian Constitution, four spheres of competence are delimited: federal (legislative and executive powers belong to federation); land (legislative and executive powers belong to lands); joint (legislative powers belong to federation while executive powers belong to lands); and frame-like (legislative powers belong to federation as well as to lands within the limits determined by the federation, and executive powers are vested to lands).

A similar pattern of distribution is applied in the German republic, where the powers of the federation are determined depending on whether they should be regulated equally for all the lands or whether it is expedient to make this regulation an issue of lands own constitutions. As a result, powers have been distributed in the following way:

The exclusive powers of the federation are clearly defined by the Basic Law (foreign affairs, citizenship matters, defense issues, monetary and currency systems, customs, air communication, post and telecommunication, federal public service altogether 11 items) according to article 71 of the Basic Law;

Within the sphere of competitive powers, lands are entitled to adopt laws only in case the latter are missing on the federal level. The federation, however, adopts a law only when there is a necessity of a legal regulation common for the whole federation (civil, criminal, labor and land law, economic and nuclear legislation, laws on foreigners, social service, housing services, navigation, traffic, purity of the air and noise control altogether 24 items), as stipulated in article 72 of the Basic law;

The frame competence of the federation is confined to adopting acts (model prescriptions), which may be similar to the fundamental legislation which existed in the USSR. The federation issues model prescriptions if a problem cannot be solved efficiently by the lands legislation, or regulation by lands would infringe on the interests of other lands or the whole country, or if it is necessary for observing legal or economic unity (lands public service and municipal service, higher education, nature and landscape protection, territorial planning, water regime regulation and population registration 5 items), as stipulated in articles 72 and 75 of the Basic Law;

Shared projects[30] are to be financed both by the federation and by lands (building institutions of higher education, improving regional economic structure, agriculture and coastal protection);

As compared to federal legislative prerogatives, the exclusive competence of the lands looks less impressive, for it is formed according to the residual principle and includes education (partially), culture policy, health protection and police service 4 items.

The choice of a certain pattern of distributing powers is predetermined by a number of political and economic factors. Their optimal combination, favorable for the efficient interaction between the different levels of public authority, may be found in developed countries with high standards of living. And the deficiency of the constitutional model of distributing powers (as it is, for instance, in the USA where the Constitution has long been a historical document) is compensated by effective mechanisms of interaction between authorities and a favorable economic and financial situation.

4. Foreign practice of financial provision of exercise of powers

It is obvious that even the most accomplished models of the distribution of power are useless without sufficient resources for attaining the objectives of the public authorities which result directly from them. In this sense, developed countries are luckier because they have a real opportunity to enliven the formal legal framework with financial and economic support. One of the best examples of such practice is the German experience of financial provision of exercising powers in a federal state.

Financial issues, including such specific ones as the rate of division of taxes, are prominently discussed in the Basic Law of the German Republic. To coordinate the budget interests of various levels more closely, a special body of voluntary cooperation, the Council of Financial Planning, was founded in 1968 and involves the federation, lands, communities and the German federal bank.

In order for the federation and lands to fulfill their tasks completely, they are provided with an appropriate financial basis, with taxes being its one of its most important elements. In the whole bulk of tax proceeds, the federation accounts for 41.5% and lands for 41.2% (the rest comes from the EU 5.2% and communities 12.1%.)[31] Thus, the financial potential of the federation and lands is approximately equal. The distribution of tax proceeds is carried out in compliance with the tasks set for a certain level of power. Income and turnover taxes are common ones and are distributed between the federation and lands according to certain proportions. These taxes account for 50% and 30% of all tax proceeds respectively. Other types of taxes are under the competence of a single level of power:

The federation deals with insurance taxes and all the commodities taxes (for instance, oil products, tobacco, alcohol and coffee taxes);

Lands are assigned to collect means of transport, inheritance taxes, land purchase taxes, totalizator and lottery taxes, fire and other disaster insurance taxes and also the beer tax.

At the same time, the financial conditions of the German lands vary greatly. The financially strong Bavaria, Hamburg and Hessen are contrasted with weaker lands in the east of the country (the former German Democratic Republic). These differences are resolved through the general German system of distributing income among lands, which includes the following: a differentiated distribution of the lands general share in the turnover tax among certain lands; entitlement payments from economically more robust lands to weaker ones; and additional grants from the federation. The control over budget implementation on each level is entrusted to the Federal Board of Account and the Account Boards of the 16 lands, which corresponds to the constitutional principles of federalism and budget independence.

As a positive example may be considered also the experience of fiscal federalism in Switzerland, though, in contrast to the German financial system, the Swiss fiscal constitution is not a uniform formal structure, because the fiscal constitutions of each of the 26 cantons play a significant role alongside the numerous federal laws. In spite of the variety of its components, Swiss fiscal federalism can be characterized by three main features, each of them corresponding to an underlying issue of the interaction of budgets in a heterogenous society: decentralization of expenditures; the limited and legal nature of taxation; and a rational system of financial stabilization.[32]

Of certain relevance is the Spanish experience of financial regionalism. The regions in Spain enjoy financial independence for the purpose of self-development and exercise of their competence, according to the principle of coordinating financial activity with the Treasury and the principle of solidarity of the Spanish nation (part 1, article 156 of the Constitution of Spain). The funds of the regions are made up by: national taxes, assigned partially or entirely by the state, including additions to the public taxes and other involvement in state inflows; taxes, duties and special payments which are levied directly by the regions; funds from the compensatory state fund and from the General Budget of the country; profits from their own property and income; and profits from credit operations (art.157 of the Constitution of Spain).

There are two systems of providing funds for the exercise of powers in the regions. The general system implies a primary financing of the regions by the state. Special organic legislation which regulates the exercise of financial powers, the order of settling potential arguments and various forms of financial cooperation between regions and state, is adopted for a term of 5 years according to part 3, art. 157 of the Constitution of Spain. It is reconsidered every five years (there have already been 4 reforms of this law). The common system of financing functions with regard to all the regions except Navarre, where there is a so-called coupon system of financing, which consists of a bottom-up circulation of funds rather than the top-down circulation of financial flows which exists in the general system, as if Navarre subsidizes the state itself.

One of the most important aspects of regionalism is the delegation of powers by the Constitution of Spain. Thus part 2, art.150 of the Constitution says that a similar law should stipulate for the transmission of corresponding financial assets in every case, as well as the form of control, which the state retains the right to determine.

5. The distribution and delegation of competence in terms of management theory

The field of management theory yields many useful insights into the foreign experience of the distribution of powers which it would be improper to ignore as an adjacent discipline. In the process of comparative analysis of state-legal and corporate institutions there can be mentioned a striking similarity of approaches to the distribution and delegation of powers. However in management theory, these issues appear to be more distinct, devoid of ideological features characteristic of state-legal disciplines.

The work of W. Rice-Johnston, a foreign classic author in theories of management, provides an excellent starting point.[33] He defines the delegation of powers as the passing of powers for fulfilling a certain task or solving a problem from one person to another, usually subordinate person within the framework of the same organization. Delegation, writes Rice-Johnston, is an essential factor in the viability of any organization, for the following reasons: 1) The delegation of powers ensures a more rational distribution of working time based on the level of powers, liability and experience (i.e., as powers become more routine, they should be delegated). 2) The delegation of powers allows for the establishment of the practice of training well-qualified personnel (that is, delegation is a stimulus for career advancement). 3) With delegation, tasks are fulfilled by those who are best able to do them (the principle of subsidiarity). The delegation of powers also helps in the consolidation of an organization, because it is accompanied by the transmission of duties and responsibilities, the simplification of the organizational structure, and the elimination of expensive administrative units (distance between a clerk and the head of a body can amount to a maximum five administrative levels, an increase in which leads to malfunctioning of the organizational structure).

To make delegation a truly efficient means of management, it should involve all organizational levels and all kinds of activities. And the process of the delegation is best started from the bottom up (like the theory of the formation of federalism from below). However, despite its obvious advantages, the delegation of powers is a field that is highly resistant to change. The motto of antidelegation is: it has always been done this way. One of the reasons for this lies in the fact that a competent delegation of powers will lead to the consolidation of an organizations viability only in the long-term. But at the same time, short-term losses are an inevitable part of the price of the possibility of further fruitful development.

The motto of the delegation of powers is control without hampering. In the process of delegation, the delegating authority must surrender a share of its responsibilities to subordinate units of management. The opposite process of the bottom-up delegation of powers is in fact not delegation as such but centralization, the creation of a single structure, whose existence is justified only in exceptional circumstances for a short period of time and for a narrow range of objectives.[34] The horizontal distribution of objectives is normal in the delegation of powers.

Of course, the extrapolation of theories of management to the field of public administration is a complicated and ambiguous process. However, the ideas mentioned above can somewhat clarify the processes of the distribution of powers on the state level, make for a more conscious choice of a certain model of the distribution of powers, and promote a more correct assessment of the conditions and prospects of the distribution of competence in a particular state.

6. Basic trends in the foreign practice of the distribution of competence

For a long time in Russian society, a rather distorted idea of the basic trends in foreign practices of distributing powers dominated. For instance, it was considered that foreign federations had for the most part established ideal forms of relationships between the center and the regions. Without denying the achievements of particular states in the field of federation development on the whole and the distribution of competence especially, it should be noted that this statement is far from reality, as is occasionally mentioned both by the Russian and foreign authors.[35] Foreign experience with the distribution of powers has brought forth the following issues: 1) the increasing concentration of power within national governments; 2) the excessive centralization of executive power, which inevitably leads to a situation when officials at the central and local levels change their constitutional duties by means of national treasury;[36] 3) the intensifying erosion of legislative standards (in terms of neglecting inconvenient norms, even such a developed federation as the USA is steadily following the path of Argentina, which has already become an example in this regard, in the opinion of V. Ostrom[37]); 4) the presence of the so-called unfunded mandate of the federal center, which is typical not only of Russian federal fiscal relations but of developed European federations as well (the latter have also the unfunded mandates of the European Union); 5) the growing social burdens of the subjects of federation, which exercise from 50 to 100 state functions on average, and the increase in number of which, without proper financial support, can lead to the loss of many social necessities on the regional level; 6) a tendency toward infringing the rights of local authorities, when the subjects of the federation behave in the same way toward municipal formations as the central government behaves toward them, forcing them to reduce their own social expenses; the struggle for their share of taxes and subsidies on all levels of power, for the tax resources of many, even relatively successful, subjects of the federation meet only half of their own needs;[38] 7) consideration of grants (subsidies) as a basic element of income levelling in the subjects of the federation, the supporting structure of regional policy;[39] 8) tendencies to the redistribution of funds of the subjects of the federation, not the center, which leads to thriving lobbying on the federal level, whereas federal grants are often given in small sums (4-8% of the budgets of subjects) which do not lighten their social burdens.[40]

Vincent Ostrom, one of the classic writers on the subject of American federalism, has quite a critical attitude towards the American experience of the distribution of powers. He presumes that with the Congress weakening constitutional standards which determine both powers and means of implementation, one can observe a rather broad expansion of national legislative power, which is increasingly involving greater parts of society. But this process leads to less attention paid to the quality of legislation. Instead of setting adequate standards which will sanction the actions of executive power and at the same time limit the exercise of executive prerogatives, modern legislation is more and more often taking the form of declaration of a certain public goal which delegates to an executive body the competence to attain it and at the same time endows it with powers to formulate the necessary regulations and directives. The underlying power of rule-making is transmitted to the executive branch. The chapter in Ostroms fundamental work is named: Garcia, the Decline of Federalism, and the Central Governments Trap.[41] No further comment is necessary.

At the time of the so called parade of independence which swept across Russia 10 years ago and turned gradually into a parade of treaties which in its turn was replaced by the parade of the abrogation of treaties (and now the age of agreements seems to be returning), the administrations of the subjects of the Russian Federation had often stated that it was necessary to decentralize the constitutional practice of the distribution of powers following the example of foreign federations which were thought to be decentralized. Without denying that fact on the whole, it should be noted that a federal legislator in most of these federations is entitled to extend federal competence without limits, and thus the practice of decentralization is already questioned.

Decentralization, in the practical sense of the word, thus remains only the exercise of powers by the executive bodies of the subjects of the federation. A structure of this kind can be seen in such states as the German republic, Austria, Switzerland and even the USA, where a unified continental system of executive power is replaced by a dualistic one (the dualistic system presupposes that the federal center exercises powers only in its own field of competence and does not interfere with the areas delegated to the subjects of the federation; there is thus a coexistence of two separate levels of government, each of them provided with its own rights and duties.)[42] However, in the majority of federal states which to some degree proclaim decentralization in exercising powers, the executive power itself is viewed structurally as a single vertical line, which brings to naught the theory of universal decentralization. For instance, in Switzerland, such a structure is fixed by article 46 of the new constitution and bears the name executive federalism. This institution is based on the hierarchical relationship between the canton and the federal government in all areas which concern issues of federal competence. The principal responsibility of canton authorities is the implementation of federal law, because necessary executive bodies do not as a rule exist on the federal level. Thus, all the federal laws and directives are carried into effect by the canton administration. Federal authorities pursue the course of granting the cantons full rulemaking authority, preserving at the same time their own prerogative of directing the common political course, setting federal standards and principles and the consolidation of cantons power to implement these principles, because cantons, as compared to the federation have more experience of dealing with the population directly. But the implementation of federal law in cantons by federal bodies themselves would lead, as the Swiss experts believe, to unpredictable consequences[43].

A similar practice also exists in Germany. The federal government exercises control only over foreign affairs, job placement, customs, borders guard and the Bundeswehr. And administrative duties are mostly fulfilled by the lands. Thus, the lands are responsible for virtually all internal administrative affairs, and their administrative machine accounts for the implementation of the majority of federal laws.

Hence, executive federalism is in actual fact not at all a new form of government but just an optimal means of distributing powers in a unified hierarchical system of executive power. Its unity is maintained as well by the practice of conferences which exists in such states as Germany and Austria and implies permanent bodies which coordinate the ministries and are common both for the federation and lands, consisting of the heads of executive bodies of different levels (mainly of prime-ministers and ministers of the federation and lands). A model of this kind is also called organizational federalism.[44]

However, one should not overestimate the positive aspects of conferences. In the opinion of the Austrian legal expert Perntaler, the implementation of this model in Austria led to the intensification of centralization and weakening of the lands autonomy. The landstag (parliament of a land) cannot control the head of the land government any longer, since it is subject to federal bodies to a greater extent than it is to those of the lands; the legislation of the lands has deteriorated as a result of federal legislative intervention, and the Constitution designates for the lands the principles of forming their legislatures and exercising control. Eventually, unitary federalism may eventually evolve from the current state of affairs in Austria and Germany[45].

In the first half of the nineties, when most of the subjects of the Russian Federation were aiming towards the maximization of their powers, and the motto of this period became the historic statement of President B.Yeltsin made during his tour of Tatarstan, many appeals to the foreign experience of the distribution of powers were heard. But with foreign states, it was quite the opposite situation: neither center nor regions could load themselves with additional powers. In contrast to the all-Russian struggle for power, the most developed foreign federations have experienced and continue to experience the process of execution of already existing powers. The subjects of the federation do not seek additional powers from the center, and the center in turn does not attempt to reserve them to itself, for such an extension of central power would only cause the regions to fall behind socially and economically and exaggerate the role of federal bodies of power, resulting in the inefficient administration of the regions.

Most progressive foreign federations have long been using the subsidiarity principle according to which the powers should be exercised on whichever level of power is most efficient for the population and people and which is able to exercise real public control over the level of public authority closest to them. Thus the struggle for powers gradually transforms into the struggle for money.

Yet, despite plenty of unsolved problems, the most successful foreign models of distributing powers are frequently almost the only reference point for our country in this field. Today, the foreign experience of distributing powers and competence can be characterized by the following tendencies: complication of the constitutional legal structure of the distribution of powers both in vertical and horizontal power relations; the satisfaction of needs of the population from certain/various regions as a criterion for the optimal correlation between centralization and decentralization of powers; federal powers remaining only those powers that are central to the general functioning of the federation, with all other powers surrendered to the subjects of the federation. Thus, the authorities approach the population with the principle: Never charge a bigger unit with what can be done by a smaller;[46] redistribution of powers both centralization and decentralization is realized in a peaceful, constitutional way, and this is the aim of the concept of partnership and solidarity between the federation and its subjects; since the reason for the differentiation in society is often not an ethnic or religious but a financial one, the strategy of just and reasonable leveling of incomes of the subjects of the federation is used; a greater transparency in the field of shared and residual powers, the continuity of legal regulation of the exercise of a certain power and its financial provision; and the widespread exercise of the subsidiarity principle.

A federation is a flexible instrument of coordinating common and private interests. Different, sometimes alternative tendencies of centralization and decentralization, globalization and isolationism, unification and aspiration for individuality demand a constant correction of its evolution. At the same time, the use of a given pattern of distributing competence can have a critical influence on the dynamics of federal relations, because the principal idea of federalism lies in the following: what you can not do yourself, give to others.[47]


* Milena Valerevna Gligich-Zolotareva, Candidate of Science (jurisprudence), adviser of the Problems of State Building Department of the Council of the Russian Federation Machinery Analytical Office, counselor of state of the 3rd rank, senior research officer of the Institute of Law and State of the Russian Academy of Sciences.

[1] The Committee was founded by the Presidential decree 741 of June, 21, 2001 (the head of the Committee is D.N.Kozac).

[2] That is a book of initiations of bills put forward to the State Duma by the President of the Russian Federation, on December, 31, 2002. It included amendments to the federal laws On the general principles of organizing legislative (representative) and executive bodies of the Russian Federation subjects and On the general principles of organizing local government in the Russian Federation.

[3] A prominent Russian jurist Iaschenko believed, for example, that issues on the distribution of competence are not connected directly with the federal structure of the state. However some other statements of him allow to correct slightly this conclusion. See: Iaschenko A. Teoriia federalizma. Opyt sinteticheskoi teorii prava i gosudarstva. Jurev. Tipografiia K. Mattisena. 1912.

[4] Rheinstein M. Max Weber on Law in Economy and Society. N.Y.: Simon and Schuster, 1954. p. 330-334.

[5] The Indian Constitution of 1950 lists 97 items of federation competence, 47 items of joint competence and 66 items of states competence (compare with the Russian Constitution which has 18 items of federation and 14 items of joint competence).

[6] Umnova I.A. Konstitucionnye osnovy sovremennogo rossiiskogo federalizma. M.: Delo, 1998. P. 183-198.

[7] Mishin A.A. Konstitucionnoe (gosudarstvennoe) pravo zarubezhnyh stran. M.: Belye alvy, 1996. P. 100-101.

[8] Luzhkov Iu.M. Put k effektivnomu gosudarstvu: Plan preobrazovaniia sistemy gosudarstvennoi vlasti i upravleniia v Rossiiskoi Federacii. M.: Izd-vo MGU, 2002. P. 125.

[9] Chirkin V.E. Sovremennyi federalizm: sravnitelnyi analiz. M., 1995. P. 45-56.

[10] Appendix 2 to the Constitution of the United Republic of Tanzania of 1977.

[11] The Constitution of Ethiopia of 1994.

[12] Articles 3, 42 of the Constitution of Switzerland of 1999.

[13] In our view the word joint is appropriate for this way of distributing competence, because it does not set strict limits between the sphere of joint authority and the sphere of the subjects of federation authority.

[14] The Constitution of Pakistan of 1973.

[15] The Constitution of the Swiss Confederation (of May,29, 1874, in the edition of September, 24, 1978) implied this variant of the distribution of competence, but the new Swiss constitution, adopted in 1999 changed slightly the scheme of distributing, what resulted in the functioning of one-link pattern in Switzerland.

[16] Korkunov N.M. Russkoe gosudarstvennoe pravo. T.1. SPb.: 1892. P. 78.

[17] Articles 20-26 of the Constitution of the Federative Republic of Brazil.

[18] Article 1, Clause 8, Article 1, Clause 10 of the Constitution of the United States of America (of September, 17, 1787, amended).

[19] A similar view on the dualistic system of the distribution of competence can be found in works by Mishin A.A. see the above-named work, P.100-101.

[20]Articles 26, 121, 124-126 of the Constitution of the Argentine Nation (of May, 1, 1853, edition of 1994).

[21]Articles 117-118 of the Political Constitution of the United States of Mexico (of January, 31, 1917).

[22] Article 1 of the Constitution of Belgium (edition of May, 5, 1993).

[23] The Constitution of Spain of December, 27, 1978.

[24] Part 1, Article 91-a of the Basic Law of the Federal Republic of Germany (of May, 23, 1949).

[25] Part 10, Article 115 of the Political Constitution of the United States of Mexico.

[26] The Constitution of India of 1950.

[27] For more detail see: Fliainer T. Shveitsariia: subsidiarnost i raznoobrazie / Federalizm: rossiiskoe i shveitsarskoe izmereniia. M.: 2001. P. 23.

[28]About this in: Marku Zh. Tezisy vystupleniia na mezhdunarodnoi konferencii Razgranichenie polnomochii mezhdu razlichnymi urovniami publichnoi vlasti, sostoiavsheisia v g. Sankt-Peterburg 23-24 maia 2002 g. // Analiticheskii vestnik Soveta Federatsii. 2003. 1 (194). P. 76-77.

[29] For more detail see: Ostrom V. Smysl amerikanskogo federalizma. Chto takoe samoupravliaiuscheesia obschestvo. M.: Arena, 1993. P. 121.

[30] The notion of shared projects is fixed in the Basic Law of Germany since 1969.

[31] The data refer to 1997. See: Germaniia: fakty. Frankfurt-na-Maine, Societets-ferlag / Izdano Vedomstvom pechati i informacii federalnogo pravitelstva. P. 185.

[32] For more detail see: Shtaufer T. Fiskalnyi federalizm v Shveitsarii / Federalizm: rossiiskoe i shveitsarskoe izmereniia. M.: 2001. P. 92-100.

[33] Rais-Dzhonston U. Takticheskii menedzhment: metody upravleniia v meniaiuschemsia mire. SPb.: Piter, 2001. P. 288-300.

[34] The example of the newest Russian experience of distributing and delegating powers is of relevance here. According to the draft law On amending the federal law On the general principles of organizing legislative (representative) and executive bodies of power of the subjects of the Russian Federation the subjects are vested with the powers concerning issues of joint authority mentioned in a list of 41 item. At the same time the similar federation powers were not listed in this draft, and for quite obvious reason there are more than 700 items.

[35] For example: Chirkin E.V. See the above-mentioned works, P. 43; Ivanov I. Evropa regionov. // Mirovaia ekonomika i mezhdunarodnye otnosheniia. 1997. 9. P. 10-14; Ostrom V. See above-mentioned works P. 136-150; Perntaler P. Problemy federativnyh otnoshenii v Avstrii. // Gosudarstvo i pravo, 1994, 3. P. 120-125 and some others.

[36] Ostrom V.: see the above-mentioned works, P. 147.

[37] Ostrom V., Ibid.

[38] A norm is established for the European states, according to which up to 30% of the local budgets to come from local taxes, the state of budgetary well-being of regions thus looking not so hopeless.

[39]In Germany, for instance, the income base of the lands can not be less than 90% of the average norm, as the result of which a part of incomes is not always fairly taken from 6 sponsor regions in favour of 11 lagging client regions.

[40]For more detail see: Ivanov I. Evropa regionov. // Mirovaia ekonomika i mezhdunarodnye otnosheniia. 1997, 9. P. 10-14.

[41] Ostrom V., above-mentioned works .P. 137.

[42] This position was stated once by the Supreme Court of the USA.

[43] Fliainer T. Shveitsariia: subsidiarnost i raznoobrazie. / Federalizm: rossiiskoe i shveitsarskoe izmereniia. M.: 2001. P. 24.

[44] See: Bote M. Federatsiia i demokratiia na forume iuristov. // Gosudarstvo i pravo. 1992. 4. P. 142-143, also: Perntaler P. Problemy federativnyh otnoshenii v Avstrii. // Gosudarstvo i pravo. 1994. 3. P. 120-125.

[45] Perntaler P., see the works mentioned.

[46] D. Moinihen. Quotation according to Khukhlyndina L.M., Khodakov D.A. Integraciia: obedinennaia Evropa ili soobschestvo svobodnyh evropeiskih regionov? // Belorusskii zhurnal mezhdunarodnogo prava i mezhdunarodnyh otnoshenii, 1999, 4. P. 47.

[47] This statement belongs to Pope Pius IV.


 
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