The Structure of States - Unitary and Federal States - 2012

The Structure of States - Unitary and Federal States - 2012

 

 

What is a state?

 

Before explaining the structures into which a country can be divided, it may be useful to explain some terminology. The word ‘state’ can refer to the regional areas into which a country such as the United States of America is divided, or it can refer to the national organisation for the governance of a country as a whole.

 

An example of the use of the word in this latter context, is where a criminal prosecution is brought by ‘the State.’ In Britain which is a constitutional monarchy and the monarch is the ‘head of state,’ the word ‘state’ in the national context is replaced with the word ‘Crown’ or some other reference to the monarch; - thus ‘Crown Courts,’ ‘Crown Prosecution Department’ and ‘Rex or Regina v an accused.’

 

Note that the state is not the same as the government, although it is run by the civil service which is headed by the government. The state is permanent, but the government can change from time to time. The difference between the state and the government is most clearly illustrated in systems in which there is a clear separation of the head of state from the government. In the British system, for instance, the Queen is head of state, but not leader of the government. It is therefore equally correct to refer to ‘Her Majesty’s Government’ and to ‘Her Majesty’s Loyal Opposition.’ One of the less obvious aspects of the separation of powers in this context is that a citizen’s loyalty is owed to the state, and not to the government. Similarly, a taxpayer pays taxes to the state, not to the government who runs the state. A more obvious example of the separation of powers in this context is the courts which are an organ of the state, but not part of the government.  Many authorities refer to ‘areas of government’ when referring to all the major organs of state, executive, legislature and judiciary. I have avoided this in these notes, however, referring instead to areas of ‘governance,’ and reserving the use of ‘government’ to the executive so as not to make these notes more confusing than they might be already!

 

Every country has different levels of government. Generally, the division occurs at three territorial levels; municipal, provincial and national.

 

The municipal level relates to the government of a borough, town or city. In this context, South Africa has amalgamated many of its boroughs, towns and cities into larger ‘metropolitan’ regions such as EThekwini which corresponds to the old ‘greater Durban’ area.

 

The provincial level relates to any governing bodies that regulate a region of a country which is larger than the locality controlled at municipal level. In South Africa and Canada the regions into which the country is divided at this level are known as ‘provinces,’ whereas in the United States and Australia, these regional divisions are called ‘states,’ (more accurately reflecting their origins) whilst in Switzerland they are referred to as ‘cantons.’

 

In some countries, a regional unit that occasionally corresponds to a province but is often a little smaller is called a 'county'. In the USA each state is divided into a number of counties, and in this case they comprise a fourth level of governance, although they have few powers.  In the United Kingdom, counties have limited authority over local education, fire services and the police.

 

The powers of government are distributed at these different levels, and the question of whether or not a country is organised on a unitary or federal basis depends on how the powers are distributed.

 

Note – The manner in which power is divided between the central legislature and executive and the provincial and municipal legislatures and executives has nothing to do with separation of powers – ie – separation of powers between legislature/executive/judiciary.

 

Unitary States

 

In a unitary state;-

 

a)    The national legislature is the supreme lawmaking body in the country. 

 

b)    It can allow other legislative bodies to exist at provincial and municipal level, but can overrule them and they are subordinate to it.

 

c)    There is no entrenched (protected) division of power between the national legislature and the state or provincial legislatures. This means that the national legislature can revoke or amend any powers that regional legislatures might have been given previously.

 

There are an enormous number of unitary states including New Zealand, France, Zimbabwe, Namibia, Norway, Denmark and Sweden.

 

What is the United Kingdom?

 

The United Kingdom has always been regarded as an example of a unitary state in the past, but with certain recent developments including a separate legislature in Scotland and Wales together with limited home rule in Northern Ireland, it is starting to become more decentralised in character. Parliament at Westminster retains its sovereignty, however, and can revoke the powers it has granted the regional parliaments. The United Kingdom is therefore more accurately regarded as a ‘decentralised’ unitary system, in the style of pre-1994 South Africa. Prior to 1994, South Africa had provinces with provincial governments that had certain powers granted to them by Parliament, but these powers could be revoked at any time by Parliament which had sovereignty.

 

What is sovereignty?

 

Sovereignty is the quality held by a body which has independence and can make any decision it chooses. A ‘sovereign’ state is a country which enjoys independence and does not need to obtain permission from another state for any of its actions. South Africa has been a sovereign state since the Statute of Westminster was passed in the British Parliament in 1931.

 

A person, body or organ of state enjoying sovereignty is one in whom or in which the authority of the state ultimately resides. In South Africa from 1931 to 1994, sovereignty resided in Parliament, but from 1994 until the present, sovereignty has resided in the Constitution.

 

 

Federations

 

In a federal state:-

 

a)    The powers of government are divided between a central national government for the whole country and the regional governments of provinces or states.

 

b)    This division of power is constitutionally entrenched (protected). 

 

c)    The central legislature has limited powers and the legislatures of each state or province has limited powers. The central legislature may not revoke or interfere with the powers of the regional governments. This means that neither is subordinate to the other; – they are co-ordinate.

 

d)    Wheare claims in addition, that with an orthodox federal system, residual powers are left to the regional governments. By this it is meant that any power or function not expressly given to the central national government by the constitution, automatically resides in the regional governments.

 

e)    Generally a federation can only exist where the constitution rather than the national parliament is sovereign. If a national parliament is sovereign, it has the power to revoke the powers of a provincial legislature. Therefore a country that has parliamentary sovereignty may never be a federation by definition.

 

f)     On the other hand a unitary state has no special requirement with regard to sovereignty. A unitary state may have a sovereign constitution or some other institution of government that is sovereign, be it a parliament, an absolute monarch (such as is the case with Swaziland) or a dictator.

 

Federal states in theory are more democratic than unitary states, as devolution of power allows more expression of the electorate’s will at the local level. In effect, government is brought closer to the people.

 

Examples of federal states include the United States, Nigeria, Australia and Switzerland. In each case the constitution sets out matters upon which the national legislature can make laws, and reserves to the states or cantons a sphere in which their legislatures may make laws and may operate in legal independence of the national legislature.

 

(Even the legal systems can differ from state to state. Whilst most of the US states have systems which are descended from English Common Law, Louisiana, for instance, uses a system based on the Code Napoleon, reflecting its heritage as a French territory, which was purchased by the United States from France in the early nineteenth century. Another notable difference that illustrates the relative autonomy of the individual states, is that certain practices such as the death penalty are permitted in some states, but not in others.)

 

Quasi Federations

 

Quasi-Federations are systems that contain both federal and unitary elements, but lean toward a federal system in practice, as opposed to decentralised unitary systems such as the UK and pre-1994 South Africa, which are predominantly unitary with certain federal elements.

Canada is an example of a ‘quasi-federation.’ Its ten provinces have areas of responsibility over which they exercise exclusive authority and upon which the national government may not legislate. This kind of provision is federal in character.

 

Conversely, however, the national executive may veto provincial bills and disallow provincial acts even where these fall within the area of the provinces’ exclusive authority. Also, unlike the situation pertaining to state courts in the United States, Judges for the state courts in Canada are appointed by the national government.

 

The conclusive factor, however, is that any residual powers are held by the national legislature. This set of factors prevents Canada from having a purely federal system.

 

By and large, however, the national government uses its power of veto sparingly and seldom interferes with provincial governance. There are historical and political reasons for the national government’s restraint. Allowing the provinces more autonomy than provided for in the constitution has helped to defuse the danger of the French speaking province of Quebec from seceding and results in Canada being more akin to a ‘pure’ federation in practice.

 

Germany is an example of an ‘integrated’ quasi-federation. In this case there is an overlap in powers between the central legislature and the provinces and there is also a provincial presence in the national legislature. A glance at the provisions in the South African Constitution with regard to the National Council of Provinces reveals that Germany’s constitution has had an enormous influence on the South African Constitution with respect to the structure of government.

 

Federal States that act like unitary states

 

It is not only quasi-federal states such as Canada, however, that operate in a manner contrary to their theoretical structure in practice. States that are theoretically pure federations in terms of their constitutions may also function as unitary states in practice. In Australia, for example, the national government has used its financial resources to closely control the states, which are dependent upon it for funding. (It should be noted that the question of money has always played a significant role in the structure of government, in keeping with the old adage that ‘he who pays the piper calls the tune.’) 

 

Another example is the erstwhile USSR which described itself as a federation, but was so closely controlled at the centre that it was more accurately a unitary state with some measure of decentralisation.[1] (Financial control was central and the individual republics had little significant individual power).

 

In the United States, which is usually cited as the prime example of a federation, the state governments have also experienced some erosion of their power as a result of the intervention of the national government. The tool used in this particular case has been the power to ‘regulate commerce among the several states’ granted to Congress by the Constitution.[2] Its scope was small at first because the US was initially largely agrarian with little commerce to regulate.  As commerce grew, however, so did the authority of Congress to make regulations that affected individual states. Some of the regulations promulgated under this authority have gone beyond what would traditionally have been considered to be ‘commerce’ and equal rights regulations have also been imposed under this authority on US states which had formerly legislated for racial segregation.

 

One must remember, however, that the United States began as a somewhat loose union of states, even for a federation. Therefore, the strengthening of the national government at the expense of the states’ governments has not yet eroded its essentially federal character. The United States accordingly remains the prime example of a federation.

 

Confederations

 

Another form of government which is somewhat rarer is a confederation. With this system, individual sovereign states set up a common organisation to regulate matters of common concern. The individual states retain control over the central organisation, however, to a greater or lesser degree.

 

The instrument that regulates the central organisation and holds the individual parts together is sometimes more in the nature of a treaty between separate states than the constitution of a single state.

 

The most famous example was the Confederate States of America, although this was somewhat more federal than confederate in nature. Other examples were Germany from 1871 to 1918 and the United Netherlands from 1579.

 

A modern example is the European Union, which has progressed from being an economic trade organisation to taking on some aspects of central government, albeit in a limited fashion.

 

An interesting example of a country which began with strong confederate elements was the United States before the American Civil War of 1861-1865. The United States began as a confederation, which continued until the signing and ratification of the US Constitution in 1789. Although the United States was an authentic federation from 1789 to 1861, it initially had relatively weak national institutions and government. The Civil War had a profound effect on the powers of individual states, and one of the results of the war was the clear negation of any right to secede that individual states might have had before 1861.[3] The change brought about by the Civil War is graphically illustrated by the grammatical manner in which the United States was referred to before and after the war. Before the Civil War, it would have been grammatically correct to say ‘the United States are,’ emphasising the plural nature of the country and the autonomy of the individual states, whereas now we would always say, ‘the United States is.’

 

 

The current structure of governance in South Africa

 

See chapter 4, sections 42, 43, 44, 60, 68, 146, 147, 148 and schedules 4 and 5 of the Constitution.

 

South Africa’s 1996 Constitution provides for three levels of governance; national, provincial and municipal. The 1996 Constitution was influenced by the German Constitution with regard to the structure of governance, and South Africa can now be characterised as an ‘integrated quasi-federation.’ 

 

An Integrated System

 

Integrated systems provide for:-

 

a)         The regional organs of governance to be represented in the national legislature.

b)         They also provide for an overlap in areas of authority between the national legislature and the provinces, hence the use of the term ‘integrated.’

 

The South African Constitution provides for the provinces to be represented in Parliament by means of a second house; - the National Council of Provinces, and provides for an overlap in functional areas of competence, hence the similarity to the ‘integrated’ German system.[4] (See sections 42, 60 and 68 of the Constitution).

 

A Quasi-federation – Federal Elements

 

With regard to South Africa’s structural status as a quasi-federation, several federal elements are present. 

 

1)         Constitutional Sovereignty

 

The first point to make in this regard is that although constitutional sovereignty is not an attribute which is unique to federal systems, it is a fundamental prerequisite of federal states, nonetheless.

 

Since 1994, the South Africa Constitution has had this attribute, and section 2 of the 1996 Constitution provides that the South African Constitution is the supreme law of the Republic. 

 

2)         Provincial Structures

 

Secondly, the mere existence of governance at regional level, in this case the provincial legislatures, is a necessary (though not in itself conclusive) element for the existence of a federal structure.  Nine provinces are created in terms of section 103 (1) of the Constitution.

 

3)         Exclusive Areas of Authority

 

Thirdly, the provinces have their own exclusive areas of authority, (in addition to other areas of authority which overlap with that of the national government.)  In terms of section 43, legislative authority vests in Parliament in respect of the national sphere of governance, the provincial legislatures in respect of the provincial sphere, and the municipal councils in respect of the local sphere.

 

The actual spheres of authority over which the provincial and municipal legislatures have authority are spelt out in Schedules 4 and 5 of the Constitution.

 

Schedule 4 provides a list of functional areas over which the national and provincial legislatures share concurrent (overlapping) competence. This list includes functional areas of both provincial and local competence. This contains some important areas of authority, including those of health and education, for instance.

 

Schedule 5 lists functional areas over which the provinces have exclusive competence and also lists functional areas over which the municipalities have competence but are subject to oversight from the provinces in terms of section 155 (6)(a) and (7).

 

It should be noted that the provincial functional areas of exclusive competence are extremely limited, whilst the municipalities have no functional areas of competence that are not subject to oversight from the provincial administrations.  Nevertheless, the areas of exclusive functional competence given to the provinces comprise a specifically federal element. 

 

Since these areas of exclusive functional competence are constitutionally protected and cannot be revoked by Parliament without amending the Constitution, South Africa can no longer be considered to be a decentralised unitary system as it was in the past.

 

Factors that militate against a federal structure – intervention, conflicts and residual powers.

 

There are several factors which prevent South Africa from being a true federation, however.  An important test is the power of the national legislature to intervene in an area of provincial competence in specific instances. Another test is the question of which level of governance prevails in the case of a conflict between national legislation and provincial legislation. A third and conclusive issue is the question of where any residual powers not specifically provided for in the Constitution reside. 

 

1)         Intervention

 

Section 44 (2) permits Parliament to intervene in provincial affairs by passing legislation with regard to a matter falling within an exclusive functional area of the provinces listed in Schedule 5 when it is necessary, inter alia, for national security, to maintain economic unity, to maintain essential standards and to prevent unreasonable action taken by a province which might be prejudicial to the interests of another province or to the country as a whole.  

 

It is important to note that the Parliament may not intervene whenever it pleases, but merely under a limited set of circumstances.  If these do not exist, Parliament may not intervene in exclusively provincial areas of authority listed in Schedule 5. This limited power of intervention is therefore not conclusive as to whether or not South Africa is a federation, but it does tend to weaken the federal elements of South Africa’s structure.

 

2)         Conflicts

 

a)         In accordance with South Africa being an integrated system, the Constitution provides for certain functions to be shared between the national and provincial legislatures, and their authority is therefore ‘concurrent’ in this regard. These areas of authority are listed in Schedule 4 of the Constitution.  The provision of concurrent areas of authority creates the potential for conflict, of course.

 

Section 146 provides a mechanism for resolving conflicts between national legislation and provincial legislation in respect of any of the functional areas listed in Schedule 4 (concurrent competence). It stipulates that national legislation which applies uniformly over the country as a whole prevails over provincial legislation, provided that certain conditions relating to the need for national uniformity or security listed in section 146 (2) are met. 

 

b)        National legislation also prevails over provincial legislation in terms of section 146 (3), where it is aimed at preventing unreasonable action by a province that may be prejudicial to the economic, health or security interests of another province, or of the country as a whole. 

 

It is important to note, however, that where the conditions set out in these two subsections do not apply, provincial legislation prevails over national legislation in terms of section 146 (5).   This means that whilst national legislation will prevail in the particular circumstances set out in section 146, provincial legislation will prevail in all other circumstances involving the areas of authority listed in Schedule 4.

 

This section therefore provides a mix of outcomes in a clash between national and provincial interests.  Whilst the national legislature will prevail in a conflict situation affecting the functional areas that are within the concurrent area of competence of the national and provincial legislatures, provided certain specific criteria apply,  provincial legislation will prevail if these specific criteria do not apply.  It is therefore impossible to decide whether or not South Africa has a federal system from the provisions relating to conflicts alone. Nevertheless, as the default position – that is  an absence of the specific criteria set out in section 146(c), leaves schedule 4 authority in the hands of the provinces, this section has implications which are more federal than not.

 

c)         Section 147(1) provides for conflict between national legislation and a provision in a provincial constitution with regard to issues listed in subsections (a) to (c).  Section 147(1) generally treats the provincial constitutions as provincial legislation, and therefore achieves a similar effect to that envisaged in sections 146 and 44(2) (which it specifically mentions,) with national legislation prevailing in specific circumstances.  Section 147(2) provides that national legislation which is enacted in terms of section 44(2) for the purpose of intervening in matters of exclusive provincial authority that fall under Schedule 5, prevails over provincial legislation.      

 

d)        Finally, if the courts are unable to resolve a dispute concerning a conflict between national legislation and provincial legislation or a provincial constitution, national legislation prevails in terms of section 148.

 

The effect of all these sections is that the national legislature can intervene in provincial governance in a wide ranging but specific set of circumstances, and in the case of conflict with provincial legislation or a provincial constitution, national legislation will prevail in particular, though not in all circumstances.  Where these particular circumstances do not apply, the provincial authority will apply, this being the ‘fall back’ or default position, so to speak.

 

This generally supports the idea that South Africa might be a federation, albeit a weak one given the number of situations in which national legislation will prevail.  This is not absolutely conclusive, however, as reference needs to be made to the residual powers.

 

3)         Residual Powers

 

The only issue that remains is the question of where any residual powers not specifically provided for in the Constitution reside. 

 

Section 44 (1) (a) (ii) gives the National Assembly power ‘to pass legislation with regard to any matter, (italics mine) including a matter within a functional area listed in Schedule 4, but excluding, subject to subsection (2), a matter within a functional area listed in Schedule 5…’   A provincial legislature, however, is empowered by section 104 (1) (b) only to pass legislation with regard to matters within the functional areas listed in Schedules 4 and 5, those matters assigned to provinces by national legislation and any matter for which a provision of the Constitution envisages the enactment of provincial legislation.

 

This means that the national legislature has authority to enact legislation in respect of any area except those from which it is specifically prevented by the Constitution, whereas the provincial legislatures may only pass legislation in respect of those areas over which they have been specifically given authority.  The result is that any power not specifically given to the provinces resides in the national legislature.  The residual powers accordingly vest in the National Legislature.

 

This prevents South Africa from being regarded as a federation, but enough federal elements exist to regard South Africa as a quasi-federation rather than a unitary state.

 

Note:- Whether or not a country is a federal or unitary state has little or no direct bearing on the issue of the separation of powers. It therefore has no bearing on whether or not a country follows the Westminster or Presidential system of governance. Separation of powers has more to do with the relationship between the legislature, the executive and the judiciary, than the relationship between national and provincial legislatures, which is what the federal or unitary structure of a state reflects.  Students should be wary of confusing these concepts.

 

 

 

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[1]           The Union of Soviet Socialist Republics was founded in 1922 toward the end of the Russian Civil War, which followed the Bolshevik revolution of 1917. It arose from a union between the Russian SFSR and other soviet socialist republics which had previously been part of the Tsarist Russian Empire. By the time of its demise in 1991 it had added several conquered territories and comprised 15 such republics. The Soviet Union was a single party communist system, with a planned economy and was a highly centralised state. (The acronym ‘USSR’ translates to ‘CCCP’ in Russian.) Soviet republics are states in which all state power is vested in ‘soviets’ or councils of employees. Soviet states are not necessarily one-party or communist, although they are generally associated with both of these phenomena.

[2]           Article I, Section 8, Clause 3 – Constitution of the United States of America - [The Congress shall have Power] ‘to regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.’  See also the Civil Rights Act of 1964; Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964); and Daniel v. Paul, 395 U.S. 298 (1969).

[3]                      It should be noted that the original thirteen colonies that joined in rebellion against Britain in 1776 each viewed themselves as sovereign states which had joined together for the common purpose of ending Britain’s authority over them. The United States had a confederation type government from 1776 to the end of the revolutionary war in 1783, and from then until the adoption of the Constitution in 1789. The success of the ‘Federalists’ in convincing the Constitutional Congress to adopt a federal constitution was spurred by the post war financial difficulties experienced by several of the individual states. Nevertheless, the impulse for the ‘liberty’ of confederalism was resilient, and the powers of the central government and Supreme Court were initially far less strong than they were later to become during the course of the 19th century, and especially after 1865.

 

[4]               The Courts have, however, held that caution needs to be exercised in the use of comparative case law relating to the division of powers in other countries; - Ex parte Speaker of the National Assembly: In re Dispute Concerning the Constitutionality of Certain Provisions of the National Education Policy Bill No 83 of 1995 1996 (3) SA 289 (CC), 1996 (4) BCLR 518 (CC) at par 2.