Introduction

1. The concept of federalism A general introductionOlivier Pierre-LouveauxAdviser to Pr. F. Delpérée, Senator,Democratisation Officer at the MEDEA Institute(European Institute for Research on Mediterranean and Euro-Arab Cooperation) Building one Iraqi State Federal Options

2. Introduction • State structures are systemic and dynamic. They shall match with the juridical and political culture. • Institutions should be adopted by States and adapted to their society. • It could be very valuable to profit from the experience of another State. • The Belgian federal system cannot, in our opinion, be presented as a global model. • A State should not transpose purely and simply institutions of other States. • A diversified and punctual inspiration (mechanisms, procedures, institutions) rather than a global transposition. Building one Iraqi State Federal Options

3. What is federalism? Federalism is a system where legislative powers are divided between sub-units and a centre. The authorities can act independently of the others in some area. Citizens have political obligations towards two authorities, at least. Building one Iraqi State Federal Options

4. Powers and responsibilities are both divided and shared between the federal entity and the federated entities. Each authority is autonomous in its own sphere of competences In many cases the different orders of government share a number of powers with one or another. Some authorities often get primacyin certain fields. Building one Iraqi State Federal Options

5. The federal States are built on the same idea. • A structural principle : the existence of a State does not exclude the presence of specific groups, ambitioning to the recognition of their own identities. • Except this principle, figures of federalism are multiple. Building one Iraqi State Federal Options

6. Federalism and Unitarianism The unitary State is the State in which “the law is the same for all citizens”. • Sovereign power belongs to only one authority, the central government. • The levels of power “below” the central government get their authority form the central government. Building one Iraqi State Federal Options

7. Tree rules could characterise the organisation of a unitary State: • The rule of uniformity, • The rule of equality between the individuals • The rule of subordination between the authorities. Building one Iraqi State Federal Options

8. The rule of uniformity The same law establishes the rights and the obligations of the inhabitants of the State or of the individuals under its jurisdiction. • The rule of equality “men are born and remain free and equal in rights”. • The rule of subordination between political authorities. Creation of local authorities is permitted but the central government is in charge of their administrative supervision regarding the respect of the national law and of the general interest. Building one Iraqi State Federal Options

9. A federal system is a State where sovereignty is divided. The federal authority shares power with other authorities. • All are subject to the same set of rules (Constitution and body of institutional laws). Building one Iraqi State Federal Options

10. Tree rules could characterise the organisation of a federal State • the rule of autonomy, • the rule of equality between authorities • the rule of participation of the federated authorities to the decision-making at federal level. Building one Iraqi State Federal Options

11. The rule of legislative autonomy The federated authorities are allowed to make their own law. (autos - nomos). • The rule ofequality between the political authorities Federal and federated authorities have the same legislative tool. Their interventions are on an equal footing. • The rule of participation The federated authorities are associated to the organisation and to the functioning of the federal State. Mechanisms and institutions are established to keep a certain level of collaboration between the partners. It can correct the potential excessiveness of the rule of autonomy. Building one Iraqi State Federal Options

12. Centrifugal and centripetal federalism The federalism by associationfinds its origin in the decision taken by independent States to: • renounce to their sovereignty and • to merge into a new State. e.g. : USA, Germany, Switzerland… They accept to blend with the condition to keep a certain degree of autonomy. They will exercise their responsibilities, no more as a State (otherwise, it would be a confederation of State) but as federated entities. Building one Iraqi State Federal Options

13. Federalism by dissociation finds its origin in communities’ claims of autonomy, heard in a unitary State. • The central State then concedes to new political authorities some of the sovereignty prerogatives regarding certain spheres of competences. e.g.: Belgium, Spain Building one Iraqi State Federal Options

14. Advantages of federalism in case of dissociation • Communities and individuals are not made for the constitutional system; • The institutions must rather adapt themselves to the communities, to the individuals and to their aspirations. • It is, in a way, a further development of the democratic principles. Building one Iraqi State Federal Options

15. Why federalism is seen by some countries as an institutional solution ? • To answer to the aspirations of autonomy of the population or a part of it.e.g. : Belgium, Spain • To guarantee more liberty and to protect from the domination of central authorities.Federated authorities can preclude unjustified action against the will of minorities by the federal authority. • To allow the coexistence of communities in a blossoming institutional structure. A state in which several cultural groups coexist could be attractive. • To multiply the occasions for citizens to participate in public decision-making, by federated and federal authorities. Building one Iraqi State Federal Options

16. "A great democracy must either sacrifice self-government to unity or preserve it by federalism. The coexistence of several nations under the same State is a test, as well as the best security of its freedom . . . The combination of different nations in one State is as necessary a condition of civilized life as the combination of men in society" (Lord Acton, "Nationality." in J. N. Figgis, ed., The History of Freedom and Other Essays, London: Macmillan. 1907, 277.) Building one Iraqi State Federal Options

17. Too much autonomy could be harmful to a minimum of collaboration. • Too much collaboration can also be at the expense of effective exercise of autonomous competences. • There is no institutional solution. It depends on the political will to live together. The only thing that the law can bring is the institutions and the mechanisms to structure this will to share a State and to organise the dialogue. Building one Iraqi State Federal Options

18. Territorial or personal federalism The federated entities can be established on territorial base or on personal base. • The territorial federalism consists in splitting the national territory in geographical zones, regions, provinces, districts… e.g.: Germany, USA, Spain, UK,… • In the limit of the competences of the federated authorities, people and situations localised in these zones will be ruled, in virtue of the principle of homogeneity, by the federated authorities. Building one Iraqi State Federal Options

19. The (non-territorial) personal federalism consists in giving to individuals a statute allowing them to depend on the rules edited by a federated entity anywhere they are located on the national territory. e.g.: Belgium, Hungary, Egypt… • It can be particularly constructive in case of ethnic, religious or linguistic heterogeneous zone. • These autonomous authorities territorially de-linked are comparable to millet of the Ottoman Empire : • Non- Muslim groups kept control over their own religions, educational, linguistic, and cultural institutions. Building one Iraqi State Federal Options

20. The federal choices can have heavy consequences. • In case of territorial federalism, the protection of human rights, by example, could be reduced to the limits of delimited zones within the federal State. • The personal federalism, on the contrary, can lead to the promotion of regimes more respectful of the human rights and more protecting of minority rights. However, it can bring the inconveniences of coexistence of distinct or antagonist groups, on a same territory. Building one Iraqi State Federal Options

21. The necessity of establishment of personal federated authorities will namely derive from the demographical landscapes of the new regions. • The governorates’ gathering procedures should indeed respect the voices of the minorities. Otherwise, they should institute some protecting procedures. • The Belgian system mixes territorial federalism on regional matters and personal federalism for community matters. • It is a very complex solution. Since the political situations are intricate, the institutional solutions, shouldn’t be too simple or simplistic. Building one Iraqi State Federal Options

22. Asymmetrical and uniform federalism • Uniform federalism is characterized by federated entities with the same status, the same structure, the same competences and the same financial means. • Example : Germany, USA,… • The asymmetrical federalism allows each federated entities to have a distinct status. It takes into particular situation of regions. It is a federalism “à la carte”. • Example : Belgium, Spain,… Building one Iraqi State Federal Options

23. Competitive federalism • The federal government has a reduced role in federated entities. • The federated governments have an increased role in managing their own affairs. • Examples : Pakistan, United Kingdom, Austria, Brazil, Micronesia, Switzerland and Belgium. Building one Iraqi State Federal Options

24. Coercive federalism • The federal government continues to “direct” both federal and federated policy. • Federal laws and federated laws may be presented by the federal government. • Examples : Nigeria, Italy Building one Iraqi State Federal Options

25. Permissive federalism • The powers and authorities of the federated governments derive from the only consent of the federal government. • The federated authorities develop their powers form the federal government. • It is very close of a unitary system. • Examples : Austria, India Malaysia, Mexico and the Russian Federation. Building one Iraqi State Federal Options

26. Cooperative federalism • Distinct and autonomous, the federated authorities accept yet to actively participate to the joint work. • The federal and the federated authorities, both, in this case, are involved in federal decision-making processes. • Such cooperation is often presented as an antidote to excessively autonomous regimes. • Examples : Ethiopia, Germany, South Africa, United States, Venezuela and Belgium. Building one Iraqi State Federal Options

27. The consociational organisation is an important part of the cooperative federalism. • A consociational State has major internal divisions along ethnic, religious, or linguistic lines, but manages to remain stable, due to consultation among the elites of each of its major social groups. • It can exist in a unitary or in a federal State. However, it is much needed in a federal State in order to keep a certain degree of cohesion. • To be effective, it must be translated in institutional mechanisms of cooperation, like ad-hoc institutions. • Examples : Switzerland, India and Belgium . Building one Iraqi State Federal Options

28. The consociational principle guarantees that no communities will be bypassed by a decision regarding the conduct of the federal State. • In Belgium, it has been translated by several mechanisms. Building one Iraqi State Federal Options

29. The federal government. • Parity in the Belgian federal government is guaranteed by the Constitution. • It means an equal number of ministers for each language group (except the Prime Minister). • Consensus is the rule for decision-making in the federal government • Language group are thus at equality and each has a veto power. • That makes the government the key conflict resolution institution. Building one Iraqi State Federal Options

30. The Parliament • The Belgian Senate is the communities’ assembly. Its composition includes explicitly the presence of the two linguistic groups, The Constitution gives each a fixed number of seats. • 41 Dutch speakers (25 directly elected, 10 from the Flemish Parliament and 6 co-opted), • 29 French speakers (15 directly elected, 10 from the French Community Parliament and 4 co-opted) • 1 German speaker (from the German Community Parliament). • The members of the House of Representatives, elected with a proportional system, are divided into a French and a Dutch language groups. Building one Iraqi State Federal Options

31. The special Laws • The Parliament decides usually with a ‘simple’ majority of 50% of the votes. • The Constitution has, however, introduced the concept of “institutional laws”. • They require in both Houses a two-thirds majority and a ‘double’ majority, which means a majority of 50% in each language group. • This procedure is followed for the basic organizational structures of the Belgian federation. Example: Details of the statutes of the federated authorities, of their competences and also the fiscal and financial arrangements have been written in Special Laws. Building one Iraqi State Federal Options

32. Council of State • Roles: • To Assist the legislator with legal advice(Legislative Section) , • To act as Supreme Court for administrative justice (administrative section). • Federal and federated laws have to be sent to the Legislative Section for advice. • The Council of State's advice contains arguments with regards namely to • the distribution of competences and • the respect of the Constitution. Building one Iraqi State Federal Options

33. The Court of Arbitration • Conflicts over distribution of powers are settled by a jurisdictional institution. Its task is to pacify the institutional relationships between the different partners within the federal State. • European model of constitutional justice consists in a Court separated from the judicial power. • The reasons are : • the different nature of the litigations than the ones treated by the common jurisdictions. • the political legitimacy. • The composition of the Belgian Court is : • 12 judges (6 Dutch-speaking and 6 French-speaking), appointed by the Federal government, on proposal of the Senate. • Half of the judges are former politicians, and half of them belong to the judicial profession. Building one Iraqi State Federal Options

34. The ‘Alarm bell procedure’ • If three quarter of a language group agrees that • a proposal in the House or in the Senate • could disturb the relations between the language communities, • the proposal is sent to the federal Government to find a well-balanced compromise. Building one Iraqi State Federal Options

35. The conflict of interest mechanism • A federal or federated legislative assembly, can decide, with a ¾ majority if it disagrees on the essence of laws, decrees or ordinances. • A period of negotiation between the assemblies, suspending the debates, is opened. • If no solution, the Senate has to give an advice to the Committee of “concertation”, an ad-hoc institution with the task to find a solution, by consensus. Building one Iraqi State Federal Options

36. The civil service institutions • A proportional representation of the two language groups is guaranteed in the federal public administration by dividing civil servants into different ‘frames’. • A strict parity is respected from the level of director. • The civil servants having contact with the public should have a minimal knowledge of the other language. Building one Iraqi State Federal Options

37. Iraqi federalism The Iraqi Constitution contains the roots of the federalism. • Legislative powers and responsibilities are divided between regions, governorates that are not organized in region and the federal authority (autonomy). • Each authority is autonomous and can act independently in some areas. Building one Iraqi State Federal Options

38. Iraqi federalism • The Iraqi State does not exclude the presence of other groups, ambitioning to the recognition of their own identities(equality between authorities). • A cooperative federalism is yet visible through several mechanisms: • namely the establishment of a public commission guaranteeing “the rights of the regions and governorates that are not organized in a region to ensure their fair participation in managing the various state federal institutions, missions, fellowships, delegations, and regional and international conferences (article 105 of the Iraqi Constitution). Building one Iraqi State Federal Options

39. Iraqi federalism The Iraqi political will should give to these constitutional provisions all their significance in order to develop a healthy and attractive federalism. The opportunity exists, it should only be activated. Building one Iraqi State Federal Options