An introduction to subnational constitutions in a context of consent or dissent

Subnational constitutions are defined as basic documents for given subnational entities which lay down entrenched basic rules on subnational identity, representative structures, organization of powers, fundamental rights and/or policy principles, and require the approval of the people or representatives of the subnational entity. The strength of the power to adopt subnational constitutions, both as to content and procedure, is measured and situated against the background of federal design and societal context. It is hypothesized that the power to adopt subnational constitutions is strong in traditional federations with pre-existing constitutions, and weak (incomplete, restricted and under central oversight) and contested in fragmenting multinational federations. It is also held that in the latter case, self-constituent capacity can be secured through the entities’ involvement in national constitutional arrangements. The Belgian case is used to illustrate the hypotheses.

Subcomparing subnational constitutions

This presentation assesses the process of comparing subnational constitutions in federal states from three points of view. First is a top-down assessment of the federal constitution’s subnational constitutional “space,” or competency for the component units to adopt their own constitutions. This is a legal assessment, but influenced by context, with consent and dissent as an important factor. Devolutionary federal states are likely to have narrower space than integrationist federal states. Second is a bottom-up assessment of how the component units actually utilize this competency. This is a political question, which is also influenced by the measure of trust and distrust. Third is a legal assessment of the process of policing the limits of subnational constitutional space, and also on the limits of federal intrusion of such space.

Land constitutions and cooperative federalism: the German case

German Länder enjoy constitutional autonomy. They invoke the prerogative to adopt and change their constitutions at their own discretion. The Federation has no say in these matters. Yet, there is no such thing as ‘constitutionalism’ in the German Länder: Land constitutions remain instruments of government. So far, they failed to turn into ‘charters of self-governance’ (Gardner) that would the people help to pursue happiness or strive for a good life. This discrepancy between constitutional prerogatives and symbolic/political importance finds its cause in the fact that the constitutional autonomy of the Länder is politically entrenched and circumscribed in various ways. In essence this means that the dual character of federalism that structures constitutional politics in the Länder does not fit with German cooperative federalism that mostly shapes ‘normal’ politics in the Federation.

Subnatioal constitutions in Bosnia and Herzegovina

Bosnia and Herzegovina (B&H) is a compound of the Federation of B&H (FB&H), the Republic of Srpska (RS) and the Brčko District (BD). The FB&H consists of 10 cantons. Apart from the Constitution of B&H, the Entities (the FB&H and the RS) and cantons have their own constitutions. The Brčko District (BD) has a statute. The constitutional system is based on the principle of parity of three constituent peoples – the Bosniaks, Croats, and Serbs – at all tiers of government. Sub-national constitutional reform has been opposed by all three constituent peoples. While the Bosniaks perceive that the present constitutional design increases the prospect of more autonomy for the Croats and the likelihood of independence for the Serbs, the Croats and Serbs fear the Bosniak’s aspirations for a renascence of the unitary system of government. Hence, the status quo is likely to remain in place. The fragmented, multinational, and asymmetrical features of the system are likely to continue.

Subnational constitutions in South Africa

In the three months before the first democratic elections in April 1994, the interim Constitution of 1993 were amended twice to bring into the fold two ‘spoilers’ who had the capacity to wreck the holding of free and fair elections – the Inkhata Freedom Party and the Freedom Front. In the case of the former, the power to draft a provincial government was a central concession by the two main partners to the constitutional deal – the African National Congress and the National Party. Given the ANC’s dislike of federalism (and the fear of unleashing centrifugal forces) the concession was very stingy leaving little scope for an expansive power. When only opposition-held provinces sought to utilize the power, the Constitutional Court gave these constitutional provisions a narrow reading, denuding them of any vitality. The result is that subnational constitutions are but a further element in South Africa’s hybrid federal system – a hollow promise.

Subnational constitutions in Italy

Italy is generally described as a quintessential example of a regional state with some room for asymmetry. Regional statuti have not played so important a role in defining the constitutional ambitions of the single subnational units. Their chief function is to lay down the general rules concerning the form of government, and their recognition among the public is quite low. In some political and academic circles, the statuti were expected to play a greater role in the aftermath of the federalizing reforms of 1999 and 2001 and to become more similar to regional constitutions. However, subsequent political practice and case law of the Constitutional Court have all but refuted these expectations. Yet, slightly different arguments apply to the statuti of the five regions with a special autonomy status.