DISTRIBUTION OF POWERS BETWEEN THE ORDERS OF GOVERNMENT

1. DISTRIBUTION OF POWERS BETWEEN THE ORDERS OF GOVERNMENT

2. The questions • What responsibilities are best assigned to the central government? • What responsibilities are best assigned to regional governments? • What responsibilities are best shared by both levels of government? • How much asymmetry possible, or desirable? • What criteria help us decide who does what?

3. Organization of the session Designing the division of powers Criteria for allocating powers The allocation of powers in practice Focus on Iraq Breakout groups

4. I. Designing the division of powers

5. Functions and Instruments • Federal constitutions allocate responsibility • In functional areas or spheres of government activity – education, environment, security, etc. • And they allocate tools, or instruments, that governments can use to shape policy: • Powers to spend and tax • Powers to regulate • Powers to legislate

6. Powers can be allocated in different ways • Exclusive powers • Only one government can act in the area • Can be exclusively central • Or provincial • Concurrent powers • Both levels can act in the area • Usually subject to rules of ‘paramountcy’ – if there is conflict, which prevails? • Normally, not always, central • Powers may be explicitly concurrent or implicitly (overlapping)

7. Legislative and Executive Powers • Legislative and executive authority can be combined or separated: • Combined. The jurisdiction responsible for passing legislation in a field is also responsible for implementing it • Separated. One order of government legislates and the other order of government implements • Germany, South Africa, Spain: framework legislation

8. Legislative and Executive Powers • Combined system reinforces autonomy and legislative control over the executive (accountability) • Separated system allows for flexible application of national norms and requires intergovernmental collaboration • But may make it more difficult for citizens to understand who is responsible and hold them accountable

9. Many variations • Older federal constitutions allocate power in very general ways; newer ones allocate powers in more detail. • Residual powers: who is responsible when the constitution is silent, or when new issues, not in the constitution, arise? • US – all residual powers to the states; but in fact federal Trade and Commerce power and supremacy clause go the other way. • Canada: ‘Peace, order and good government’ suggests federal power; ‘Property and civil rights’ suggests provincial power. Courts decide.

10. II. Criteria for allocating powers

11. How to decide who should do what? There are several criteria that federations can use to decide on the allocation of powers • The values and preferences of citizens and groups • The nature of the problems that governments face • The goal of maximizing citizen participation, accountability, etc. • The capacities of governments at different levels • Economic efficiency

12. Responding to preferences • What are the issues or questions that citizens feel need country-wide, consistent, uniform solutions (‘’national standards’’)? These should generally be assigned to the center • Examples: Health care, Higher Education, Social Security… • What are the issues where citizens in different regions have their own distinctive values and preferences? These should generally be assigned to the regions • Examples: Language policy when there are different languages

13. Responding to the problems • Some problems that governments face are inherently national, or cross regional. They are normally assigned to the central government • Examples: air traffic control, defense, security. These should be assigned to the center. • Some problems are inherently local. They are normally assigned to regional governments • Examples: local schools, roads, etc.

14. Responding to the problems • Some problems are inherently cross-boundary problems. • They have local, regional, national and even international dimensions • Example: Environment • They should be concurrent, or shared • Some federal constitutions have many shared powers (Germany, South Africa, Spain); some have few such areas (Canada: watertight compartments) • Reality is: in modern world most powers and responsibilities are increasingly shared • Hence importance of intergovernmental cooperation

15. Capacity: the ability to respond • If the problem a region faces (e.g. a polluted river) is caused by the actions of another region (spillovers),or • If an action one region takes has negative effects on another (externality) -- • then central control is necessary. By itself no region can solve the problem • If redistribution (sharing across regions) is desired, this is also a central responsibility. • Whatever responsibilities are assigned to regions, it is essential that they have the financial, political, bureaucratic and financial resources to carry them out.

16. III. Allocating powers in practice

17. Allocating powers in practice What is the underlying process? • In older federations units came together to decide who should do what • In newer federations the process was one of decentralization from previously unitary regimes - UK, Spain, Iraq – now the decision is which powers should move to the subnational units • Other model: the European Union: • What powers to give up to the center • What happens with existing federations

18. Allocating powers in practice • The need to allocate powers in a gradual manner: • Region formation takes time • Not all regions may want the same level of powers; the asymmetric models • Not all regions may be capable to undertake the same level of powers; financing decentralization as a problem

19. Allocating powers in practice Common patterns in practice: • Federal government – defence, security, international relations, central bank and currency, the national economy, including regulation of inter-regional trade and commerce, the postal service • Regional governments – health care, social policy, education, municipal affairs, economic development, local services, local economic development.

20. Allocating powers in practice • Where the regions are culturally distinct: • Powers may be asymmetrical • Regions may have powers to write local constitutions, language policies, etc. • Such powers are normally subject to limits set by the national constitution and by the Bill of Rights • Are highly contested • Asymmetry is more common and acceptable when it is informal rather than constitutional

21. Concurrency of powers • May be broad or narrow: modern tendency is towards broader areas of concurrency. • E.g. environment, public health, economic development, social services • May be explicit in constitution; or implied • National vs subnational dimension in concurrency; i.e. national health standards combined with regional variation in delivery

22. Concurrent powers: who decides? • What criteria to decide who’s responsible? The need for paramountcy rules; the need for referees… • The Residual Power: Assigns jurisdiction over matters not listed, to either the federal or regional government • Usually assigned to the central government • In US to the states; in Canada: ambiguous • Iraq: assigned to the regions. • Intergovernmental agreements vs judicial ruling (the judicialization of normal politics)

23. Concurrent powers • Promote cooperation • But; each jurisdiction must exercise it in a limited manner • The Aushölhung problem, or the problem of one subnational entity “emptying” the others field by extensive regulation • The contradiction problems; the need for a coordinate action in overlapping matters (i.e. tourism/environment)

24. Emergencies • Emergency Power: Exists in some countries. A federal power to override provincial jurisdiction in certain circumstances. Needs to be carefully limited • In new federations, when regions unable to carry out responsibilities – provisions for central government supervision, monitoring, intervention

25. Two models: Canada, Germany Canada: “watertight compartments” • List of federal powers, list of provincial powers • Few areas of legal concurrency – but many in fact • Each independent in own jurisdiction Germany: integrated, shared federalism • Most areas concurrent • Framework legislation

26. Focus on Iraq

27. Distribution of Powers in the IC • General clause; (may be expanded in the future?) • Article (107): The federal authority will maintain the unity of Iraq, its integrity,independence, sovereignty and its democratic federal system.

28. Distribution of Powers in the IC • List of powers: some exclusive federal powers (sec 108) • foreign policy, international agreements, trade policy… • national defence policy • financial and customs policy, issuing currency,… • Nationality, • Communications (mail, wavelengths…) • Water resources from outside Iraq • Census

29. Distribution of Powers in the IC • Shared powers (sec 112) • administering and organizing customs, in coordination with the regional government, and this will be regulated by law. • organizing and distributing the main electrical power resources. • drawing up environmental policy to guarantee the protection of the environment from pollution and the preservation of its cleanliness, in cooperation with the regions. • drawing up general planning and development policies. • drawing up general health policy, in cooperation with the regions. • drawing up general education and childrearing policy, in consultation with the regions.

30. Distribution of Powers in the IC - Few exclusive federal powers; residual powers to regions, as well as paramountcy rule Article (111): All that is not written in the exclusive powers of the federal authorities is in the authority of the regions. In other powers shared between the federal government and the regions, the priority will be given to the region's law in case of dispute.

31. CRC on Distribution of Powers in the IC • CRC report: Expands federal powers, such as: • … universities and institutes, federal power system, federal railways, pension fund, state liabilities, regulating work and safety standards in the oil fields and mines, protection of environment, air and water pollution, national surveys such as geological, plants, animals and forecast surveys, national and international highways and nuclear power

32. CRC on Distribution of Powers in the IC …and inserts emergency clauses • “The regional government has the right to resort to federal armed forces and security forces to keep discipline in the region and protecting it from aggression or natural disasters.” • “The regional government shall take the necessary actions to implement federal laws, international treaties and protocols signed by federal powers and these powers have the right to oversee the implementation”

33. UNAMI view • Worries that the central government will be too weak because of: • Short list of federal powers • Regional paramountcy • Regional residual powers • Insufficient attention to regional capacity • Unclear distinction between regions and Governorates

34. Questions for the breakout groups Each group is assigned one important issue, and each is asked to recommend how responsibilities should divided between central and regional governments; the issues are: • Higher Education • Environment • Health • Economic development

35. Assignment/2 For each issue: • Should it be federal • Or regional • Or shared? • Can it be divided, so some aspects are federal, some shared? • Is asymmetry acceptable or desirable in this area?