acknowledge Kenneth Wheare’s classic study entitled Federal Government, published originally in 1946, as the first genuinely comparative study of federal political systems (despite its title).3Riker dismissed it as ‘highly legalistic in tone’, claiming that it displayed ‘very little understanding of political realities’, but his consternation in the 1960s really reflected the intellectual debate in the USA concerning the so-called ‘behavioural revolution’ in the social sciences.4 Since then political scientists have developed new classificatory concepts that today are much more capable of eliciting extensive information which is sufficiently precise to be compared. We have already traced the conceptual and methodological evolution of federalism and federation in Chapter 1 and we have seen how far the intellectual debate has enabled us successfully to ‘compare like with like’.
In this chapter I want to examine five principal bases for the comparative study of federal political systems. These bases act as conceptual lenses or prisms through which the political scientist can identify and explore both the similarities
5 The comparative study of
federal political systems
and differences between distinct federal systems. The five bases are as follows:
the structure of federations; the sociological bases of federations, the political economy of federations that explains the bases of ideology, political parties and party systems and constitutional reform and judicial review. Each of these provides an insight into different aspects and dimensions of a variety of federal systems that enhances our understanding and appreciation of how they work, what their priorities are and why they vary, and how they adapt to change and development. In this way the student of federal political systems can choose to follow different pathways into the subject that each reveal a particular feature of the federal whole and can offer clues pointing to at least partial answers to research questions. Let us begin our comparative examination in the order in which we have just identified them.
The structure of federations
Most studies of federations recognise three broad types: the Westminster model, the republican-presidential model and a hybrid mixture of both types. The Westminster model, based on representative and responsible parliamentary government, applies in particular to Canada, Australia and India – as former parts of the British Empire – while the republican-presidential model is most closely associated with the USA. Hybrid examples that combine various elements of these two models include Germany, Austria and Switzerland while Belgium with its constitutional monarchy and cabinet government responsible to a lower house, the Chamber of Deputies, might be considered closer to the Westminster model than the republican-presidential type. These groups of comparisons work well from the standpoint of internal structures, but we also have to consider how they would change if we adopted another perspective, namely, the question of the distribution of powers in federations.
This viewpoint, as Ronald Watts has recently demonstrated, alters the kalei- doscope of comparison in significant ways.5As Watts has pointed out, the basic design of all federations is to express what Daniel Elazar called ‘self-rule plus shared rule’ via the constitutional distribution of powers between those assigned to the federal government for common purposes and those assigned to the constituent units for purposes of local autonomy and the preservation of specific identities and interests.6And it should be noted that the division of powers and competences can be organised on a territorial anda non-territorial basis. In federal systems there are always at least two orders of government, whose existence is firmly entrenched in a written constitution that is subject to specific amendment procedures and judicial review. And the specific form and allocation of the distri- bution of powers have always varied according to the specific circumstances of each federation.
Watts has claimed that, for example, ‘the more the degree of homogeneity in a society the greater the powers that have been allocated to the federal govern- ment, and the more the degree of diversity the greater the powers that have been assigned to the constituent units of government’.7 However, this (as he
admits) is a broad generalisation and it has not always been quite so simple in the highly diversified societies of India and Malaysia. The existence of the Emergency Provisions that comprise the nine Articles 352–360 of Part XVIII of the Indian Constitution and the eighteen-month period of Emergency rule during 1975–77 testify to the potential power resources available to the federal government. Indeed, where the President considers that a state of emergency exists either because of external aggression or internal disturbance, ‘the distribution of powers can be so drastically altered that the Constitution becomes unitary rather than federal’.8 Moreover, while it is true that India approximates to the Westminster parliamen- tary federal model it is not an exact replica of either Canada or Australia. The Constituent Assembly that produced the draft constitution was able to draw upon the experience of a wide variety of federations so that what ultimately emerged and has since been much modified and amended was a new federal model tailored to the peculiar needs of India and ‘the exigencies of the times’.9
In Malaysia, too, there is clear evidence of a distribution of powers that can be and has been altered to suit the tastes of the federal government in Kuala Lumpur. Article 75 of the Federal Constitution clearly establishes federal supremacy in the event of state law being inconsistent with federal law. This article is of paramount importance in the event of conflict between state and federal governments because it effectively allows the federal government to inter- fere in state legislation on virtually any matter. Article 76 also allows the federal government to encroach upon state competences (as enumerated in the State List) in pursuit of the uniformity of law with the exception of Sabah and Sarawak. Powers to cope with emergencies are embodied in Article 150 of the Constitution, which the yang di-pertuan agongcan interpret to issue a Proclamation of Emergency granting both the parliament and/or the federal government virtually unlimited powers. These powers have been invoked on several occasions to meet various crises that have occurred in the life of the federation, including the confrontation with Indonesia in 1964, the constitutional impasse in Sarawak in 1966, the racial riots of 1969 and the political crisis in Kelantan in 1977, not to mention the subsequent extensions of central (federal) powers in the Constitution (Amendment) Act (1981) that gave ‘unbridled power to the execu- tive to declare an emergency at will and to perpetuate emergency rule’ that contains the potential for authoritarian rule to be introduced at ‘the stroke of a pen’.10 Indeed, one authority on the Federal Constitution has claimed that Malaysia’s undoubted economic and social prosperity and political stability have been bought at the expense of constitutionalism and the rule of law:
A historical survey of constitutional amendments since 1957 gives credence to the view that the Constitution is treated in a somewhat cavalier fashion.
Often the amendments are effected to achieve short-term political gains or to facilitate long-term expansion of executive powers. There appears to be an obsession with the need to control at least two-thirds of the seats of the Federal Parliament. …The fine line between constitutional government and outright authoritarian rule has become even finer.11
This pattern of relations between the federal centre and the constituent units in Malaysia is clearly an historical relic, a legacy of British rule. We can easily trace this legacy from the Malayan Union (1946), the Federation of Malaya (1948), the Federation of Malaya (1957) and the Federation of Malaysia (1963) to see that strong federal government has resulted in the highly centralised feder- ation that exists today. In both India and Malaysia, then, the priority of state security – of internal order and external threat – has shaped the structure of the federation. And it has been the overriding objective that has served in practice to enhance the growth of executive power over and above increasing concerns for liberal democratic constitutionalism. But if we shift our attention away from the formal distribution of powers and look instead at a different perspective, namely,
‘administrative-executive’ procedures in federations, we alter the kaleidoscope of comparison still further.
From this perspective, the legislative process enables the constituent state governments to administer federal legislation, giving them policy influence and latitude in how it is implemented in different parts of the federation. Germany, Austria and Switzerland constitute an obvious basis for comparison in this respect, but a shift of focus towards the study of ‘intergovernmental relations’ in federations could conceivably facilitate valid comparisons not only between, say, Canada and the USA but also between Canada and Germany, where a more precisely defined ‘executive federalism’ underlining the key role of governments could be employed. The interlocking relationship between the federal and lander governments in Germany is in some respects unique, but there is sufficient simi- larity with the Canadian case to warrant a comparative focus that could provide insight. Moreover, federal–provincial relations in Canada have evolved in similar, although not identical, ways to Australia and even to the German model, involving, for example, regular formal meetings between federal and provincial ministers and their respective civil servants that suggest a symbiotic association in both legislative and public policy terms along the lines stipulated in their consti- tutions.12
These considerations about the structure of federations raise many important questions in the comparative study of federal systems that we cannot address here. However, it is appropriate to call attention to one issue in particular that is extremely complex and retains its contemporary significance, namely, the ques- tion concerning the design of federations. Put simply, does constitutional and institutional design matter in federations? The real complexity of the question can be more fully appreciated if we acknowledge at least two preliminary consid- erations: first, the origins and formation of each federation; and, second, the relationship between each federation’s complex of institutions and its social context. The former consideration gives us some idea of the primary purpose(s) of each federation – its principal raison d’être – while the latter compels us to examine in detail the interaction between each federation and the social context in which it is embedded. For Roger Gibbins the departure point of analysis is that ‘some rough initial symmetry will exist between the nature of the underlying society and that of the new federal institutions’. Indeed, to some extent ‘federal
institutions will “reflect” the nature of the society’.13This is what earlier writers meant when they alluded broadly to ‘federal state’ and ‘federal society’, and it is also what Preston King meant when he claimed that ‘if we understand the prob- lems, the understanding of structure more clearly follows’.14These contributors reinforce the point that both of these factors – the origins and formation of each federation and federal state–society relations – require detailed analysis before any answer can be forthcoming about institutional design.15
Clearly the role of political elites in constructing federations is one focus of research – identifying who they were and what were their motives – but the interaction between constitutions and political institutions and the society in which they operate requires a developmental approach over a long period of time. This reminds us of what Maurice Vile once claimed when comparing federal systems: the most difficult question is that of change and development.16 But the question of how to conceptualise change and development is itself predicated upon the kinds of distinctions that we draw between different social diversities. Everything depends on the character of the diversity and its political salience. The pertinent point to be made about investigations into tradi- tional state–society relations, then, is that there are many conceptual and empirical imponderables which make it virtually impossible to make anything other than broad generalisations about whether or not institutional design matters.
In a recent survey that looked at the conditions under which a federal political system is likely to be successful, Richard Simeon and Daniel-Patrick Conway concluded on a note of cautious optimism: institutional design didmatter but ‘by themselves, federal institutions are no guarantee of either success or failure’.17 They needed to be reinforced by other societal, procedural and institutional factors. Simeon’s and Conway’s research strongly suggests that to be successful institutional design would have to be based at a minimum upon the following preconditions:
1 A coexistence between local–regional community sub-state identities, values and loyalties and significant elements of shared, overarching identities and values in the federation at large.
2 These dual values, identities and loyalties must be reflected in the central institutions of the federation so that different forms of representation facili- tate the expression of different interests on different policy matters.
3 Additional to the central institutional framework, a series of consocia- tional techniques and procedures related to decision-making and the overarching accommodation of elite interests must be introduced.
4. Attention should be paid to the changing character of the social diversities that express political salience in order to adapt and adjust both to the new, as well as to a reawakening of the old, identities, values and loyalties.
Let us turn now to the second of our conceptual lenses through which we can compare federal systems, namely, the sociological bases of federations.
The sociological bases of federations
This focus for our comparative survey of federal political systems takes us back to the controversies that continue to surround the debate about a ‘federal society’. We have already referred in Chapter 4 to the ‘sociological fallacy’, a phrase coined by Brian Galligan to dismiss the arguments advanced by those who advocate the federal idea specifically for countries with a high degree of social heterogeneity, but the kernel of the argument stretches back to William Livingston’s seminal article entitled ‘A Note on the Nature of Federalism’, first published in the Political Science Quarterlyin 1952.18
Livingston’s famous declaration that ‘the essence of federalism (sic federation) lies not in the institutional or constitutional structure but in the society itself ’ has been the source of a lively scholarly debate that continues today to permeate public affairs in federal states. Given that the conceptual and empirical focus of this perspective is the sociological bases of federation, it is rooted in the following social cleavages that, broadly speaking, have different levels of political salience in different federations at different times: sub-state nationalism, linguistic diversi- ties, territorial identities, religious differences, indigenous peoples and communal tradition. It is important to note that it is not the mere existence of a particular social cleavage that matters in a federation so much as the constellation of cleavage patterns having political salience. How the variety of social cleavages is territorially distributed throughout the federal state and how far this distribution changes is crucial to the stability of the constitutional and political order. And in the terms used in this book, we are reminded that these cleavage patterns repre- sent the federalismin federation.
We have already looked in detail at the complex composition and significance of nationalism in federation in Chapter 4 and we have seen that both the char- acter and territorial distribution of sub-state nationalism are key factors in determining the nature of this relationship. It has to be assessed according to the circumstances of each individual case. Similarly with the category of linguistic diversities: the way that language is spoken throughout the federation is crucial to its political significance in different federations. For example, the potentially divisive politics of language in Switzerland is mediated by the cross-cutting cleav- ages of religion, custom and territory that tend to damp down social conflict while these have the opposite impact of reinforcing conflict and competition between the dominant linguistic communities in Belgium. It is sometimes diffi- cult for the social scientist to determine for analytical purposes whether or not a distinct linguistic community has become, or sees itself as, a distinct nation, but few would dispute this in Quebec, Catalonia, Euzkadi, Punjab, Sabah and Sarawak, and there are many minority voices that would also claim this status for Flanders, Wallonia, Kashmir, Assam, Malaya and francophone Acadia inside established (multinational) federations.
Territoriality is also a key factor when dealing with sociological variables. It is a very complex phenomenon that is often glossed over by political scientists who have sometimes confused it with geography and have in consequence impover- ished the concept. In one particular sense, preconceptions of territoriality as a
rather one-dimensional, if oversimplified, cleavage in federations are to be entirely expected. This is because federations are ipso facto composed of clearly demarcated constituent units that are territorial units, that is, they are to do with space, place and political processes. The German lander, the Swiss cantons and the Canadian provinces are all territorially bounded communities that represent the political organisation of space in the occupation of the territorial state. And in most, although not all, examples of federation, territoriality – the sense of place – plays a significant role in their self-definition.
A survey of territoriality in the mainstream literature on federalism and feder- ation strongly suggests an uncritical and excessive reliance upon the concept.19 In practice the notion of territory has been utilised as both a dependent and an independent variable in social-science analysis. But it is in reality a composite term that incorporates an amalgam of socio-economic and cultural elements encapsulated in a spatial organisation. It is therefore wrong to construe territori- ality as if it is something akin to an empty container that stands in its own right as an independent variable set apart from other patterns of social cleavages having political salience. Territorial identity cannot be construed in isolation from other social cleavages that interact with it to forge distinct identities, that is, a strong sense of self. The reality, as usual, is more complex. To appreciate the proper significance of territoriality in federal systems, it must be viewed as part of the federalismin federation: it is, in short, part of the larger conception of the politics of difference that inheres in discussions of federalism. In practice, territo- riality interacts with a variety of intervening social variables to produce complex forms of political identity.
Territoriality, then, is considerably more complex than the contributors to the early intellectual debate seemed to suggest. The nebulous and shifting nature of territory is perhaps best illuminated by adapting Frank Trager’s claim: territori- ality is not a fixed point on a map.20A proper analysis of the social, economic, political and cultural-ideological forces involved in the processes of decision- making would demonstrate that the composition of the so-called ‘territorial aggregate’ – and consequently its concerns – varies from one policy issue to the next. Territoriality is therefore a dynamic not a static concept in political science that means much more than the notion of constituent regional units in federa- tions. In terms of federalismthe focus of the survey shifts to the interaction of a wide range of socio-economic and cultural-ideological factors that interact to produce a distinct sense of territorial identification. This means that ‘territori- ality’ should not be oversimplified, nor should it be referred to in absolute terms.
Unless we are referring specifically to the administrative machinery of the state, it is advisable to construe territoriality as at best an intervening variable that can be extrapolated by the social scientist only in abstract terms.
Before we leave territoriality as a social cleavage, it is appropriate to make a passing reference to the notion of non-territorial federalism already mentioned in the case of Belgium in Chapter 4. We must not to forget that the idea of the territorial state, originating in the principle ofius soli, and having exclusive power over all the people living within its boundaries, is relatively recent. Prior to the