Constitutional Recognition of Local government

1
Constitutional Recognition of Local government

• Prof Nico Steytler
• Community Law Centre, University of the Western
  Cape
• 22 September 2008

2
Overview

• Introduction to Global Dialogue
• Local government and metropolitan regions in
  federal systems
• Selection of countries
• Dual Federalism
• Forms of recognition
• Subnational constitutions
• Value of recognition
• Concluding remarks

3
Global Dialogue on Federalism

• Global Dialogue on Federalism is joint project of
  Forum of Federations and International
  Association of Centres for Federal Studies
• One of aims is to produce comparative research on
  aspects of federalism
• Volume 1 - Origins and development of the
  constitutions of federations
• Volume 2 - Distribution of powers and function in
  federations
• Volume 3 - Legislative, executive and judicial
  structures in federal countries
• Volume 4 - Fiscal relations in federal countries
• Volume 5 International relations of subnational
  states
• Volume 6 Local government and metropolitan
  regions in federal systems
• Volume 7 Diversity and federal systems

4
Classical position of local government in federal
systems

• Classical model of federalism is premised on two
  orders of government the federal government and
  subnational states (referring also to provinces,
  Länder, cantons, Autonomous Communities).
• Dual federalism model - clear division of powers
  and functions, local government placed under sole
  jurisdiction of subnational states, with
  exclusion of any federal interference.
• Local governments creatures of subnational
  states, existing at their will
• LG has no independent and direct relations with
  the federal government.
• Local government has no exclusive powers, or
  final decisionmaking powers
• No independent autonomous status making it an
  order of government.

5
Changing position of LG

• Status of local government evolving.
• In some countries local government integral part
  of federated state and recognised in the federal
  constitution. Discreet areas of autonomous
  decision making in policy and independent
  finances
• Even in countries where the traditional
  subservient position of local governments to
  subnational state governments is maintained,
  financial self-reliance is leading to greater
  policy autonomy.
• The emerging autonomy, often a result of federal
  intervention, leads to direct interaction with
  the federal government.
• Key component in change is constitutional
  recognition.

6
Countries in study

• Austria
• Australia
• Brazil
• Canada
• Germany
• India

• Mexico
• Nigeria
• Spain
• South Africa
• Switzerland
• United States of Amercia

7
Country characteristics

• Federal systems old classical federations (US,
  Canada, Switzerland, Australia), newish (India,
  Germany, Austria), new (Brazil, Mexico), and not
  quite federations (Spain, South Africa)
• Size from largest Canada, US, Brazil, Australia
  and India to Austria and Switzerland - Canada and
  Australia, large tracts of land have no local
  authorities.
• Population India (1.1 billion) to Austria (8,3
  million) and Switzerland (7.6 million) no
  correspondence with number of local governments
• Large number of local governments (India, US,
  Germany, Spain, to relative few (SA, Nigeria,
  Australia)
• Population distribution mostly urbanised (gt75)
  but in India, Nigeria, South Africa much lower.
  Importance of split in type of municipalities
  numerous small rural municipalities and few large
  urban / metropolitan municipalities

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Central question

• What is the role and function of local
  governments in federal systems?
• Does place of local government in government also
  define the federal system is it two order
  federalism (federal government and states) or
  multi-sphere federalism?
• What are the consequences of multi-sphere
  federalism?
• Focus on constitutional position of local
  government as an important marker, but not
  definitive, of place of local government in
  federal systems.

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Constitutional recognition

• Constitutional recognition in the federal
  constitution plays an important role in defining
  the place of local government in the federal
  system,
• Does not define status or role exclusively high
  level of autonomy possible without constitutional
  recognition.
• Two order federal system remains dominant,
  subjecting local government in most cases to the
  jurisdiction of states

10
Historical developments

• Classic dual federal systems, clear division of
  powers and functions between the federal and
  state orders of government, local government fell
  within subnational states jurisdiction.
• United States 1778 no mention of LG result LG
  falls in residual function of states
• Australia 1901 no mention of LG - falls in
  residual function of states
• Canada 1867 LG listed competence of the
  provinces
• Anglo-phone countries India 1947, Nigeria 1954,
  South Africa 1961

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History continental constitutions

• No mention
• Swiss Constitution 1848
• Brazilian Constitution 1891
• Austrian Constitution 1920 local government as
  the free municipality as the basis of the
  state

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Recognition of LG after WWII

• LG constitutional recognition, linking of
  democracy to decentralization - LG building
  blocks of democracy
• Germany Basic Law 1949 after Nazi rule -
  principle of local self-government subnational
  elections before national election
• Spanish Constitution of 1978 after authoritarian
  rule of Franco
• Brazilian Constitution 1988 - military
  dictatorship - defined federation as comprising
  states and local government local elections
  before national elections
• South Africa Constitutions 1994 and 1996 -
  minority racist rule and civil war base
  democracy on local government.
• Mexican Constitution Amendment 1999
  redemocratizing after one party authoritarian
  rule
• Nigerian Constitution 1999 military government
  - secure local democracy. Transition from
  military to civil rule, local elections precursor
  to national elections.

13
Recognition after WWII

• Decentralisation and development
• 93rd and 94th Amendments to the India
  Constitution in 1993,
• local democracy essential prerequisite for
  development
• protect against arbitrary state action
• given opposition by states to previous attempts
  at constitutional recognition, 1993 Amendments,
  states retained dominant position
• Swiss Constitution of 1999 recording entrenched
  status of local governments. Municipalities
  argued now have basis to deal directly with the
  federal government.

14
Forms of recognition

• Recognition varies considerably
• Most cases local government is not explicitly
  elevated to an order of government on par with
  the states, thus keeping the two order nature of
  the federal systems more or less intact

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Principle of local self-government

• In some constitutions primary provision relating
  to local government is recognition of local
  self-government or autonomy
• Germany Article 28(2) Basic Law
• Within the limits prescribed by law,
  municipalities shall be guaranteed the right to
  regulate all local affairs on their own
  responsibility. Within the limits of their
  responsibilities as defined by law, associations
  of municipalities shall equally have the right of
  self-government according to the laws.
• Note
• The right to regulate / self-government
• all local affairs
• Within limits prescribed by law

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Right to local self-government

• Spain Article 137 CE
• The State is organised territorially into
  municipalities, provinces and autonomous
  communities that may be constituted. All these
  bodies shall enjoy self-government for the
  management of their respective interests.
• Switzerland Article 50
• The autonomy of the Municipalities is guaranteed
  within the limits fixed by cantonal law.
• Note
• can be raised before the federal constitutional
  courts
• meaning of self-government, autonomy not
  defined

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Explication of right to local self-government

• Principle of local self-government as basis of
  further provisions
• South African Constitution section 151
  municipalities have the right to govern on its
  own initiative.
• Mexican Constitution Article 115(1)
• The states shall adopt for their internal rule
  the republican, representative, and popular form
  of government, with the free municipality
  (Municipio Libre) as the basis of their
  territorial division and political and
  administrative organizations.

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Substantive provisions

• Definition of the democratic institutions of
  local governments (Mexico, South Africa, Austria)
  
• Powers of local government (India, Nigeria,
  Brazil, South Africa),
• Access to revenue and taxing powers (Germany,
  Brazil, South Africa),
• Conditions for state interventions (Mexico, South
  Africa),
• Entitlement to be consulted by the federal
  government on matters affecting local government
  (Switzerland, South Africa).

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Limitations to recognition

• Constitutions provide local autonomy must be
  exercised within the limits set by state and
  federal law.
• In most cases the constitutions do not provide
  operative provisions for local governments the
  provisions must be operationalised through state
  and federal law.
• Whose law? Two distinct patterns.

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Who is responsible for LG? Subnational states

• Dual federalism - implementing the constitutional
  provisions falls within the domain of the states
  Mexico, India, Nigeria
• Detailed constitutional provisions, including the
  listing of powers and functions (including taxing
  powers), must be implemented by states (Mexico,
  India, Nigeria)
• India states determines which of listed powers
  LG may use
• Nigeria list of exclusive local government
  functions, but must be operationalised by state
  law.

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Both central and subnational states responsible

• Centralized federal systems, regulation of local
  government is concurrent function exercised by
  both federation and state.
• In Germany, Austria, Spain and South Africa
  central government provides the legal framework
  and the states are to fill in the details
• Spanish Constitutional Court LG two-fold
  nature defined by the laws of both the central
  state and autonomous communities the state
  being responsible for fundamental regulation and
  the autonomous communities for the
  non-fundamental aspects.
• Result a uniformity in the local government
  system.

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Local government as order of government

• Federation is explicitly defined in terms of
  three orders of government.
• Brazil Article 1 the Federal Republic of Brazil
  is formed by the indissoluble union of States,
  municipalities (municipios), as well as the
  federal district.
• South Africa Section 40(1) government is
  constituted as national, provincial and local
  spheres of government which are distinctive,
  interdependent and interrelated.
• Scope of local autonomy is described with a
  measure of detail

23
Brazil

• Local autonomy is entrenched even from
  constitutional amendment itself
• Protected from both the federal and the state
  governments as far as internal affairs are
  concerned.
• Autonomy is not absolute and conditions for
  intervention are set in the Constitution.
• Although both the federal and state governments
  (to a lesser extent) may regulate the exercise of
  autonomy, municipalities may also rely directly
  on constitutional provisions.

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South Africa

• As constituent parts of federation, organised
  local government included in national
  institutions, such as, National Council of
  Provinces and Finance and Fiscal Commission
• Municipalities rely directly on the Constitution
  in the exercise of their functions - power to
  levy property taxes.
• National government plays the dominant regulatory
  function, prescribing the form, functioning and
  financial management of local government in
  detail.
• Provinces are constitutionally mandated to
  supervise municipalities and may in prescribed
  circumstances intervene, including dismissal
  elected councils. Interventions in municipalities
  controlled by Constitution

25
Subnational constitutional recognition

• Most subnational states (including in US and
  Australian states, but not Canada) accord some
  form of recognition to LG in their state
  constitutions.
• In Germany, Switzerland, Austria, Brazil, and
  Spain the principle of local self-government is
  repeated in the subnational constitutions.
• Details vary widely.
• Some US states have entrenched local home rule
  others Dillon rule
• Australian state constitutions provide little
  more than recognition of local governments
  existence, no limitations on states sovereignty.
  No powers are directly conferred on LG and
  recognition can be changed by ordinary
  legislation.

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Subnational Constitutions scope and limitations

• Subnational constitutional regulation itself
  becomes a site of controversy between central and
  subnational states
• Brazil some subnational states do not yet
  recognise increased autonomy of local government,
  minimizing municipal competences in state
  constitutions - regarded as unconstitutional.
• Spain Recent reforms of the Statutes of Autonomy
  in Catelonia (2006) and Andalusia (2007)
  increased scope of regional powers and afforded
  more local autonomy. Ability of these Statutes to
  trump the fundamental central government laws
  over local government is contested.

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Significance of recognition

• Wide differences in scope and extent of
  recognition, impact on federal system varied.
• Recognition is some brake on state power.
• India
• after 1993 Amendments states exclusive
  jurisdiction over LG breached must hold
  elections.
• Implementation of the constitutional provisions
  in hands of state governments, reluctance or
  resistance to do so, deny realisation of local
  self-government.
• Nigeria state governments fundamentally
  undermining constitutional mandate.

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Right to local self-government

• Elusiveness of the concept of local autonomy
  limits the usefulness of recognition.
• Recognition legally significant.
• Germany
• protects LG from excessive restrictions and
  preserves a core sphere of responsibilities
  (finances, local planning, personnel matters)
• Protects LG from revocation of responsibilities
  to higher orders of government only allowed if
  justified by an overriding public interest.
• constitutionally entrenched local self-government
  may often be a fiction very detailed federal and
  state legislation (and EU regulations) little
  left of LGs general competence

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Enforcement of detailed provisions

• Directly operative provisions are shield against
  federal and state intervention
• South Africa enforced before courts
• Cannot exclude a category of municipality from
  national transfers
• Cannot remove powers of local government to
  distribute electricity
• Reality of autonomy lies ability of
  municipalities to exercise that autonomy
  effectively political will, resources. Only
  large metropolitan municipalities able to reap
  benefits

30
Reform initiatives

• Constitutional recognition is not a prerequisite
  for local autonomy.
• Australia
• financial autonomy gives real political autonomy
  part of federal intergovernmental forums,
  direct relations with federal government
• constitutional recognition on political agenda -
  two attempts in 1974 and 1988 failed, again on
  agenda of the new Labour government.
• Canada
• increased statutory powers (Alberta, British
  Columbia, Ontario and Manitoba) greater autonomy
  through ordinary legislation, conferring
  so-called natural person powers
• not fundamentally transformed the constitutional
  nature of local governments or their finances.

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Conclusion

• Local government emerging as an institution of
  self-government since W W II, slow reshaping of
  federal systems definite movement towards
  multi-sphere government.
• Hierarchy between LG and states been attenuated
• States no longer exclusively mediate local
  interests to federal governments. LG direct
  relations with federal governments
• LG emerging, in at least some countries, as a
  partner in the federal governance system, albeit
  performing only a junior role.
• Importance of LG as an order of government is
  likely to grow.
• enjoys a higher level of trust than the other
  orders of government.
• government closest to the people, innovative
  representative and participatory democracy
  processes and structures
• responding to demands of time by providing a new
  range of social services and responding to
  environmental matters such as climate change.

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Future challenges

• Dual federalism model still holds for a number of
  countries, confining local government relations
  primarily to states
• Significant shifts - often informal LG is
  recognized as a partner in the business of
  governance particular large city governments
• Federalism is a dynamic mode of democratic
  government, it makes relationships more important
  than structures per se. Disjuncture between the
  constitutional fiction of state subservience and
  practice of intergovernmental relations.
• LGs autonomous role (metropolitan cities) in
  governance significant enough to define federal
  character of country but only a half or
  junior partner
• Multi-sphere government is emerging reality - new
  challenges
• to manage the increased complexity of
  relationships,
• addressing slowness in consultation and decision
  making processes
• ensuring the accountability of three orders of
  government.