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Introduction

Belgrade Faculty of Political Science Master Course on Compound Government. Prof. Thomas Fleiner Guest Professor November 1 to November 15 2011. Introduction. Issues:. 1 Democracy Political Parties. 2 Rule of Law. 3 Human Rights. 4 Minority Rights, Right of Self-Deter- mination.

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Introduction

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  1. Belgrade Faculty of Political Science Master Course on Compound Government Prof. Thomas Fleiner Guest Professor November 1 to November 15 2011 Introduction

  2. Issues: 1 Democracy Political Parties 2 Rule of Law 3 Human Rights 4 Minority Rights, Right of Self-Deter- mination 5 Autonomy: Legal, Economy, Political 6. Participation 7. Competition with federation other Federal Units

  3. Problems: Legitimacy: Federation – Federal Units Balance Shared Rule Self Rule Centralization - Decentralization Interconnections: Federation – Fe- Deral Units cooperation between Federal Units Fiscal Federalism and economic Autonomy, factual and legal autono- my, equalization International cooperation Rule of Law Complexity

  4. Notions: Federalism Compound Government Sovereignty

  5. Lectures: Distribution of Powers Power - Sharing Fiscal Federalism Minority Rights

  6. Federalism Unitary state - Confederation Decentralization Decon- centration administra- tive Decision Order Revoca- tion Decentrali- Sation Legislation Autonomy Responsi- Bility Finance Federation Constitu- Tion Constitu- tion ma- king Legitimacy Confede- Ration Treaty Legitimacy Internatio- nal court

  7. Variations between federations • Degrees of diversity • State of the pre-federal state(s) • Legal system • Legal philosophy • Doctrine • History • Other?

  8. Institutional building blocks: overview • A division of powers • Two (+) spheres of government • A division of resources • Constituent representation in central institutions • (some) constituent autonomy with own institutions • Prescribed common standards in relation to, for example, governance, rights, economic union • Entrenched Constitution, effectively enforced

  9. Two spheres of government • Representing the people, grouped in different ways, allowing the emergence of different majorities & minorities • How many units? • Not too many, not too few… • Borders. • How are they drawn & changed? • According to what criteria? • Symmetry or asymmetry

  10. Division of powers • What powers? • Potentially, legislative, executive, judicial • How? • Horizontal/vertical/mixed • Exclusive/concurrent/shared • Provision for co-operation? • Who gets what? • NB:implications of the answers to these questions for the institutional structure of all governments

  11. Division of resources • This includes taxation, other revenues, loan funds, grants • Mechanism likely to be influenced by the approach to the division of powers • Horizontal/vertical • Exclusive/concurrent • Fiscal Equalisation • Bases • Process • Constitutional mandate?

  12. Challenges Each federation has a set of interlocking institutions with a structural logic of their own, through which the values of both federalism and constitutional government are met The operation of these institutions may be affected by the wider context Both logic and context need to be appre- ciated to understand another system (and to borrow from it)

  13. Some Examples of Prototypes United States Presidential System 2nd chamber Competitive Federalism Goal of F Judiciary Germany Parliamentary System 2nd chamber Executive Federalism Goal of F Judiciary Switzerland Directorial System 2nd chamber Executive Federalism Goal of F Judiciary

  14. Some examples of adaption Australia American System with Parliamentary Government And one Common Law Switzerland American Senate French legal System Direct Democracy European Union German Second Chamber Directorial System

  15. Concluding Remarks Comparing political systems requires a clear notion of the point of Reference This point can be one of the two governmental systems Tertium comparationis: Principles of Good Governance e.g. accountability, legitimacy, Transparancy, corruption

  16. Democracy Of the people – by the people – for the people

  17. Liberty- Self-Determination Finding the Truth Rational Conflict Management Why Democracy? Efficiency Majority Participation - Legitimacy Accountability Limit Governmental Power

  18. Democracy, Legitimacy and: …... Efficiency Equality Liberty Fragmented Nations Rule of Law Transition Tyranny of the Majority Globalization Transparency

  19. Procedural Substantial Represen- tative Semi-direct Direct Types of Democracy Winner takes all Consociacional Democracy

  20. Democracy: Of the people By the people For the people Party System Electoral System Separation of Powers Information and Media Accountability Participation Capacity to deliver Effective administration Decentralization Local Governance Minorities Fiscal Governance Collective Rights Minimize Corruption Cooperation

  21. Problems of Democracy Principle Of Oligarchie Lobbies Volonté Générale v. Volonté de Tous Media Public Interest Economy Corruption Exclusion Foreigners Minorities

  22. Representative Democracy Representation Constituency Volonté de Tous Interests Electoral System Volonté Générale Higher being The whole people Pluralism of Parties

  23. Parties in Government Parliament Executive 45% 55% Elections People

  24. Semi-direct Democracy Parties People: Elects and decides Executive Parliament Admini- stration Economy Volonté Générale?

  25. Separation of Powers Division of Labour Separation of Powers Checks and Balances New Challenges Media Terrorism Globalization Migration

  26. Rule of Law That men are ruled by law an not by men Justice must be seen to be done Limits of Sovereignty Bonhams Case Independence of Judiciary Impartiality of Judges Professionalism of Judicial System Access to Justice Fairness of procedure Adversary – inquisitory procedure Jury - Trial Right to defense Time Mediator - Ombudsperson

  27. Human Rights Golden Rule: Just as you want others to do for you, do the same for them; no discrimination Constitutional Catalogue Restriction Emergency Reference to international law Fairness in Procedure Substantive due Process Constitutional – Administrative review (access to justice) Human Dignity Expression Information Religion Property Assembly Information Four freedoms Economic and Social Rights: Educa- tion, health, labor, housing

  28. Main Problems of Constitutions Vagueness - implementation Human Rights – restrictions - emergency Consistency Accountability Judicial Independence and access to justice Decentralization Transparency Corruption Constitutional Amendments and Revision Constitutional review Referendum

  29. Conclusions

  30. Transparency Minimalise Human Failures Minorities Input - output Criteria Capacity to Learn Participation Rule of Law Efficiency Legitimacy Accounta- bility

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