Which Kinds of Powers to Which Level of Government?
Decentralization can result in executive, legislative and judicial authorities at various levels of government. Distributing appropriate responsibilities will depend on giving sub-units the power to draft laws (a legislative function), implement or execute the law (an executive function), or interpret and apply the law (a judicial function) achieves the aims of decentralization in the specific context of the country.
Decentralizing Legislative Powers
Decentralizing legislative functions requires considering which level of government should write laws concerning particular tasks (e.g. public services) and whether that authority should be exclusive or shared between the different levels of government.
There are three kinds of powers that can be given to different levels of government:
1. Exclusive powers: powers which only one level of government has the right to make policy on. For instance, the national government might have exclusive power over defense or the sub-unit governments might have an exclusive power to make laws related to health care in their state or region.
2. Concurrent (shared) powers: these powers relate to issues that both levels of government have the right to make policy over. For instance, education is often a shared power. Regional governments might control education through high school, but the federal government has some control over university level education.
3. Residual (left over) powers: these cover the issues that are not mentioned in the constitution or that come up later. Residual powers can be assigned to either the national or the sub-unit levels of government.
There are different methods by which to embody the distribution of powers in a constitution. Some countries apply a system of enumerated powers. The constitution enumerates the national powers. The subunits have the residual power; therefore, it is not necessary to specifically list the subunit’s powers. Probably more common is a system of schedules: the constitution lists exclusive powers of the national level and the subunit level, a list of concurrent powers and shared powers, and may propose a list for the lower level of government.
Giving exclusive legislative powers to either the national or the sub-unit governments presents both advantages and disadvantages. In terms of advantages, it makes the constitutional roles of the two levels clearer. However, giving exclusive legislative powers to only one level of government might not be appropriate in post-conflict situations where ethnic or regional minorities are demanding more autonomy from the central government.
Concurrent powers are often used as a way to address this problem by giving both levels of government the legislative authority in certain areas. However, given the vertical overlap of concurrent powers between national and regional legislatures, the question of which level of government has the right to legislate (or regulate existing legislation) will arise. This can cause conflict and confusion since it is unclear which level of government has the power to legislate or regulate on issues that is in the schedule of both levels.
Some constitutions address this issue through provisions that side with one level of government in the event of a conflict. Generally the constitution prioritizes the national legislature. In other constitutions, there is a third institution that is responsible for adjudicating these conflicts between the two levels of government.
Most often, this is a constitutional court, however some constitutions rely on referenda in the case of a conflict between the two levels of government.
The Constitution of South Africa provides a very diligently drafted set of provisions as to how to settle potential conflicts in the functional areas where concurrent powers apply.
To avoid the situation in which none of the levels of government has the power to assume a specific task, one of the levels is normally attributed with the general or residual power. In some countries, the national level is vested with the residual power (Canada, India), while in others the residual power is with the subunits (Germany, the United States of America) (IDEA 2011:313).
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Article 146 of the Constitution of South Africa Conflicts between national and provincial legislation (2) National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met: (b) The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing—(i) norms and standards; (ii) frameworks; or (iii) national policies. (c) The national legislation is necessary for— (i) the maintenance of national security; (ii) the maintenance of economic unity; (iii) the protection of the common market in respect of the mobility of goods, services, capital and labor; (iv) the promotion of economic activities across provincial boundaries;(v) the promotion of equal opportunity or equal access to government services; or (vi) the protection of the environment. (3) National legislation prevails over provincial legislation if the national legislation is aimed at preventing unreasonable action by a province that— (a) is prejudicial to the economic, health or security interests of another province or the country as a whole; or (b) impedes the implementation of national economic policy. (5) Provincial legislation prevails over national legislation if subsection (2) or (3) does not apply. (6) A law made in terms of an Act of Parliament or a provincial Act can prevail only if that law has been approved by the National Council of Provinces. (7) If the National Council of Provinces does not reach a decision within 30 days of its first sitting after a law was referred to it, that law must be considered for all purposes to have been approved by the Council. (8) If the National Council of Provinces does not approve a law referred to in subsection(6), it must, within 30 days of its decision, forward reasons for not approving the law to the authority that referred the law to it. Source: Constitution of South Africa (1996) as of 2007. Available at org. |
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Regional Legislatures and Regional Parties
If subnational party systems emerge, they are likely to affect electoral competition for national offices within the region. ‘Spill-over’ from subnational to national elections occurs, for example, because regional parties start contending national elections (Brancati 2008). Once regional parties are formed and established, the costs of competing in national elections are relatively low. Even though regional parties are unlikely to share power at the national level, contending national elections might improve their electoral prospects in the next regional election. Source: Decentralization as a Condition of Party System Nationalization: Evidence from Latin America and Central and Eastern Europe |