UNITARY AND FEDERAL GOVERNMENT
Q. 1. Discuss the essential qualities of a Unitary States.
Ans. Governments may be classified into ‘unitary’ and ‘federal types “in terms of the method by which the powers of government are distributed between the government of the whole country and any local governments which exercise authority over parts of the country.” The government of every modern constitutional state falls in either of these two types. For instance, there are unitary constitutions in Great Britain, France, New Zealand etc., while the U.S.A., Switzerland, Australia etc., have federal constitutions. Characteristics of Unitary Government
The political implication of unitarianism has been characterised by Professor Dicey as “the habitual exercise of the supreme legislative authority by one central power.” Supremacy of the central legislature is the essence of a unitary type of government. The legislature of the whole country” is the supreme law-making body. Legally speaking all
other subsidiary legislative bodies are subordinate to it. The central
authority may permit other legislatures to operate in any part of the dale ; “but it has the right, in law, to overrule them.” Thus, a unitary constitution does not preclude the existence of subsidiary law-making bodies like local councils or corporations. What is significant is that powers are exercised by these local bodies at the discretion of the central government
The nature of a unitary type of government becomes clear as it is contrasted with the federal type. “In a federal constitution”, as Where writes, “the powers of the government are divided between a government for the whole country and governments for parts of the country in such a way that each government is legally independent within its own sphere.” The legislature of the whole country, in a federation, has certain specified powers : similarly, the legislatures of the states or provinces have certain other limited powers. “Neither is subordinate to the other; both are co-ordinate.” In a unitary constitution, on the other hand, powers of the state are organised under a single central government. For the sake of administrative convenience certain powers may be delegated to the smaller parts to the state. In Great Britain, for example, the local authorities are quite strong. But whatever powers they may possess are granted to them by the central government which has the supreme authority to modify or even withdraw the delegated powers.
To sum up, in a unitary constitution all the spheres of governmental action are assigned to a single central legislature. Local or regional bodies may exercise some authority which is, however, not granted by the constitution but delegated by an ordinary statute of the central legislature that can withdraw the authority at any moment. USA state with a unitary constitution, thus, exhibits two essential characteristics : “(1) the supremacy of the central parliament and (2) the absence of subsidiary sovereign bodies.” Each of these characteristics may be explained in some details. As regards the first it may be pointed out that in every unitary state, the central legislature is legally supreme. Dicey explained this principle of parliamentary sovereignty with reference to the English Constitution as :
(a) “Parliament has the right to make or unmake any law whatever.”
(b) “No person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”
(c) “The right or power of Parliament extends to every part of the King’s dominions.”
It should, however, be made clear, in this connection, that the supremacy of the central legislature, under a unitary constitution, does not preclude the supremacy of the constitution itself. The central legislature, in some of the unitary states, is limited by provisions of the constitution. For instance, the Constitution of the Irish Republic prohibits the central legislature from making laws permitting divorce. It involves the special process of a referendum to the people. Hence, the peculiarity of a unitary state is not constitutional supremacy, but legislative supremacy. Constitutional supremacy signifies the subordination of the legislature of the country to the constitution. Legislative supremacy, on the other hand, implies the subordination of other subsidiary law-making bodies to the legislature of the whole country. Thus, “To say that a Constitution is unitary is to make an assertion not about the relationship of the legislature to the Constitution but the legislature to other law-making bodies in the country, an assertion that the legislature of the whole country is superior to any other such law-making body.”
It naturally follows from the discussion that “the absence of subsidiary sovereign bodies” is the second important characteristics of a unitary state. There may be local authorities in a unitary state created by a statute of the central legislature to function as subsidiary law-making bodies, and not as subsidiary sovereign bodies. The distinction between subsidiary law-making bodies and subsidiary sovereign bodies, as Strong remarks, “is the distinction between the local authorities in a unitary state and the state authorities in a federal state.” In Great Britain, which is a unitary state, the London Country Council, a subsidiary law-making body, is a creature of the Parliament and not of the Constitution. The Parliament may, by law, modify or withdraw the powers of the Council. In the case of the United States of America, which is a federation, the regional units viz., Florida, Maryland, New York etc., operate as subsidiary sovereign bodies deriving their powers not from an act of the Congress, but from the Constitution itself. Hence, the Congress has no authority to modify or withdraw any of the powers granted to the States by the Constitution. Thus, in a federation a state authority operates as a subsidiary sovereign body in relation to the federal authority rather than in relation to the constitution. This cannot happen in a unitary state. For, the local authorities in a unitary state,
created by a statute of the central legislature, operate as subsidiary law-making bodies and not as subsidiary sovereign bodies. Merits of Unitary Government
As a unitary system is characterised by what Dicey said, “the habitual exercise of supreme legislative authority by one central power”, its chief merit lies in securing uniformity of law and administration throughout the length and breadth of a country. In a federation where powers are divided between a central government and regional authorities, disputes on the fields of operation frequently arise among the authorities. Such conflict of law and confusion of authority do not bedevil a unitary system. Moreover, concentration of authority rather than its dispersion ensures a strong government.
Secondly, unlike a federation, the unitary system does not divide the allegiance of the citizens. In the former a citizen’s loyalty is partly to the region to which he belongs, and partly to the centre. Such a system is apt to breed, as the American Civil War proved, separatist tendencies in the constituent units. To unitary system is free from such dangers.
Thirdly, flexibility is a great merit of the unitary system. Unlike a federation it has not to take the consent of any regional body to effect a constitutional amendment. The simplicity of the amending method enables the adjustment of the administration to significant socio-economic changes.
Fourthly, concentration of authority is of special help in the efficient conduct of foreign affairs and in the effective maintenance of national defence.
Fifthly, owing to the absence of a multiplicity of legislative and administrative authoritics, a unitary system is highly economical, and saves much of the wasteful and extravagant expenditure oü federation. Demerits of Unitary Government
Concentration of authority in a unitary system spells some obvious dangers. In the first place, it may well pave the way for the despotism of the central authority. As Laski observes, “… the formidable centralisation of the modern state is so great an enemy to an ideal system of rights. For only where power is distributed widely is there any effective restraint upon those who wield it.”
In the second place, to leave to distant authorities the responsibility of framing the laws for and regulating the business of far-flung areas is in fact to pay little or no attention to the problems of the latter. The
problems of Assam, for instance, can hardly be tackled efficiently by a central government situated in Delhi. In such circumstances, centralisation of authority amounts to a total neglect of the regional problems. The central authority being far removed from a problem-situation in the remotest corner of a vast country does not have access to the sources of information. It may further be overburdened with problems and responsibilities if it is to carry on its shoulders more than it can bear. Its inevitable consequence is governmental inefficiency.
In the third place, centralisation of authority under the unitary system is destructive of local liberties. To deprive the people of an easy access to the seat of authority is to make them indifferent to governmental problems. They would hardly evince any interest in politics at all, and for the preservation of a scheme of popular liberty there is nothing more dangerous than the apathy of the people. As Laski observes “We cannot release the full benefit of democratic government unless we begin by the admission that all problems are not central problems, and that the results of problems not central in their incidence require decision at the place, and by the persons, where and by whom the incidence is most deeply felt.”
Lastly, a unitary system having a single central authority may easily collapse under pressure from within or without. Multiplication of centres of authority, as in a federation, is a great safeguard against such danger. For, it is easier to strike and seize a single fortress of power than to overpower many.
Union of States
Historically viewed, states have been found to have formed several kirds of union. Sometimes a union of states would be achieved at the expense of the independence of the merging states. In some cases, again, states taking part in a union would retain their identity and independence. In a still further kind of union the identity of the participating states might be a matter of controversy. Thus, in a confederal union the states unite without surrendering their independence, while in a federal union the merger of the participating states gives rise to a new state. Other important kinds of union which deserve careful consideration are alliance, personal union and real union.
In a multi-state system alliances are inevitable among states for the solution of international problems. Two or more states may from
an alliance to defend or attack one or more powers. Such alliances do not lead to the surrender of state sovereignties, and the participating states are free to remain within or withdraw from them. In 1798, for example, Russia, Britain, Austria, Naples, Portugal and Turkey bad formed an offensive alliance under the leadership of Russia against revolutionary France.
Personal and Real Unions
Two or more states having the same person as their chief of state form what is known as a personal union. Such a union of states comes into being accidently through war and conquest or the laws of succession. A famous example of personal union was that between Great Britain and Hanover from 1714 to 1837. It was terminated by the accession of Victoria, for the laws of succession in Hanover did not permit a female heir to succeed. In international law a personal union does not constitute a state or a person distinct from the constituent states. Each member of the union retains its independence and international personality.
A real union, on the other hand, comes into being not merely through the presence of a single person as the common ruler, “but through the creation of common constitutional or international arrangements for the administration of certain common affairs.” The member states in such a union are organically united by constitutional ties, and possess common governmental organs. Still, however, each of these states retains its independence and sovereignty. A real union would thus exhibit some of the features of a real state, and on the question of its international personality authorities are sharply divided in their opinions. Austria and Hungary from 1867 to 1919 and Norway and Sweden from 1815 to 1905 had formed real unions among themselves. At present, however, there is no real union in existence. “Real unions”, as Garner points out, “represent a transitory form of relationship; usually they either become a federal or unitary state or what is more likely, they disappear through dissolution.”
Q. 2. What is a federal government ? Discuss its characteristics.
Federation The Federal Principle
The term ‘federation’ is generally used to mean an association of states. But every kind of association of states cannot be called a federation. The Swiss Confederation the United States of America, the Union of India and even the United Nations Organisation are examples of association of states. Of these, the first three are considered to be
federations, while the U.N.O. is supposed to have no claim to the status of a federation. I naturally calls for a consideration of the tests of federation. In other words, the problem, here, is to find out the salient
other forms of characteristics that mark off a federation from government.
The essential character of federalism is set by the end it seeks to serve. Federations came into being in America in 1787 and in Switzerland in 1848 in order to give effect to particular popular sentiments. It is interesting to note that before the federal constitution of 1787 was drawn up, the American colonies in course of their resistance to Great Britain, framed in 1777 the Articles of Confederation of the United States of America. In accordance with these Articles, unicameral Congress, composed of delegates appointed for one year from each state, was authorised to determine foreign relations, coinage and certain other important affairs. In exercising all these powers, Congress depended on what Alexander Hamilton expressed in The Federalist,
the concurrence of thirteen distinct sovereign wills.” In other words, the Articles of 1777 created an association of states established on the principle of the ‘sub-ordination of the general government viz., the Congress, to the regional governments. The principle of the present Constitution of the United States, drawn up in 1787, differs in a significant way from the principle embodied in the Articles of 1777. To quote Wheare, “The difference between the present Constitution of the United States and the Articles of Confederation lies in the fact that the present Constitution replaces the principle of the general government being subordinate to the regional governments and dependent upon them, by the principle of the general and the regional governments being co-ordinate and independent in their respective spheres.” Thus, the association of states created by the constitution of 1787 came to be known as a federation, as it divided the strength of the state among co-ordinate and independent authorities. The constitution gave limited powers to the government for the whole country and similarly, it granted limited powers to the governments of the constituent parts of the country. Once the Constitution divided the areas of powers, each government began to operate independentiy within its allotted sphere.
The example of the United States of America makes it clear that a federation comes into being when a number of co-ordinate states – unite for certain common purposes. As Dicey observed, “Federalism means the distribution of the force of the state among a number of
co-ordinate bodies each originating in and controlled by the constitution.” The character of federation has been shaped by the course of historical circumstances. Everywhere the aim of federalism has been to reconcile two apparently inconsistent feelings prevailing among the citizens of more or less allied countries — the desire for national unity and the determination to maintain the independent existence of each separate state or canton: In the words of Dicey, “A federal state is a political contrivance intended to reconcile national unity and power with the maintenance of ‘state rights.” The method of reconciliation is reflected in a written constitution under which everything that concerns the nation as a whole is placed under the control of the general of national government and all other matters that are not primarily of common interest are placed under the control of the separate states. The details of the division of power vary in different federal constitutions, but the principle on which it rests is quite clear. As Where writes, “By the federal principle I mean the method of dividing powers so that the general and regional governments are each within a sphere, co-ordinate and independent.”
Institutions and Processes
However, the aforesaid approach is narrowly conceived and the emphasis in its on legal structure of federalism. This is a strategy of exclusion which involves “a restricted definition so that only a small set of quintessential federations qualify for the name.” Hence, with few exceptions Where in reluctant to attribute the character of federalism to most of the federations. This is because it is difficult if not impossible, to conceive of an exactly co-ordinate pair of authorities. One of the best criticism of the traditional definition of federalism in terms of division of functions, has come from Grodzins who compares American federalism to ‘marble cake’. He says that “as colors are mixed in the marble cake, so functions are mixed in the federal system.” In the wake of mighty development thrusts, no federation can have important functions where powers of the centre and the constituent units do not intermix. Thus the traditional approach as especially exemplified in Where, where the emphasis is on division of powers among a number of coordinate authorities, is not acceptable even in the case of the federations such as US and Canada, not to speak of the new federal such as India and Nigeria.Therefore, William Riker believes that a good alternative is one of inclusion which involves a broad definition so that all federations
qualify. Federalism is defined as a “political organization in which the activities of government are divided between regional governments and a central government in such a way that each kind of government has some activities on which it makes final decisions.” Viewed in this way federalism may have minimum and maximum ranges of phenomena. The centre can decide in only one narrowly restricted category of action without obtaining the concurrence of the units. The other extreme possibility is where in a federation of the centre decides without consulting the units in all but one narrowly restricted category of action. What is, however, important to note is that most of the federations lie somewhere in between the extremes. Riker says that federations which are closer to the maximum, may be called centralised, and those which are closer to the minimum, may be christened, peripheralised. As Riker says, this definition with amounts of activities that governments control, is better than the traditional definition such as that of Wheare the emphasis is on full and formal juristic independence of levels of federal government.
Adequate understanding of the legal structures calls for the exploration of various social forces which produce federalism. As Livingston observes, “The essence of federalism lies not in the institutional or constitutional structure but in the society itself. Federal government is a device by which the federal qualities of the society are articulated and protected.” Federal institutions express the federal nature of a society. Institutions are more or less federal according as the political society, on which the institutions are grafted, is integrated or differentiated. “The varying degree of federalism are produced by societies in which the patterns of diversity vary and in which the demands for the protection and articulation of diversities have been urged with more or less strength.” This sociological analysis enables us to probe deep into the operative forces which vitally influence the nature of federal structure.
Dynamic forces in economics, the influence of welfare objectives and the emergencies of national parties have brought about a profound change in the environment of federalism. The result is that within most existing federations “the centralising tendency has been steadily at work and with ever increasing speed.” The effects of centralisation have been, first, certain dilution of State autonomy and secondly, certain blurring of the boundaries of the Centre and States. Hence the need to-day is o re-define federalism. If under’ a ‘system of government both the
Central and the States device their status and powers from the Constitution and not from some central law and can ordinarily enjoy substantial autonomy with their respective spheres, then there is no reason to deny it the character of a federation.
Characteristics of a Federation
A federal system seeks to reconcile national unitary with regional identity. Hence, as Ursula Hicks rightly points out, “Constitution and institutions must be appropriately devised for both purposes.” To reconcile national unity with the state independence under a common constitution, a well-developed federation exhibits a number of important characteristics.
A. A federal state owes its origin to a constitution, which “is, in fact a character of rights and duties of the federal and state authorities.” The powers belonging either to the general government or to the individual states, are derived from the constitution. This is what is commonly known as the doctrine of the supremacy of the constitution. It is important characteristics of federation that the provisions of the constitution control every authority existing under the constitution. According to Dicey, three consequences flow from the doctrine of the supremacy of the constitution : : (i) “The constitution must almost necessarily be a ‘written’, constitution.” As a federal state is born of an agreement among the federating units, it is necessary that to remove misunderstanding and disagreements the terms and conditions which have been agreed to, are put in black and white. In fact, in a federation the constitution takes the form of a treaty, the parties to which reduce the conditions of their union to writing.
(ii) “The constitution must be …. a frigid’ or ‘inexpensive constitution.” It implies that the power of amending the constitution should be beyond the competence of either federal or state legislatures. None of the federating units, acting on its own, should be allowed to alter the provisions of the constitution. Such rigidity is quite natural in a federation, as the parties to it would like to prevent further encroachments upon their rights. The aim of federalism is an almost permanent division of powers between co-ordinate authorities. Hence, to vest supreme legislative power in any ordinary legislature acting under the constitution would be inconsistent with the purpose of federalism. d with
(iii) Every legislature in a federation is subordinate to and
controlled by the constitution. The validity or unconstitutionality of its law depends upon whether these follow or violate the authority conferred upon it by the constitution. Thus, in relation to the constitution, the legislatures in a federation are subordinate law-making bodies.
The second essential characteristic of federalism is the distribution of powers between the general government and the state governments and more important, “the existence of a degree of guaranteed autonomy for geographically distributed governments operating directly on the citizen.” The matters of national importance are generally placed under the control of the national government, while those that are primarily of local or regional importance remain in the hands of the separate states. The details of the division of powers vary under different federal constitutions, yet the characteristics is everywhere present. Unitarianism means “the concentration of the strength of the state” in one single central legislative body ; federalism, on the other hand, means the distribution of the strength of the state. What is important is not a precise or rigid division of functions, but a degree of guaranteed autonomy for both levels of government.
Also, it is essential that there should be in a federation some institutions with power to decide disputes which may arise between the general government and the state governments. Since a division of power is an essential part of a federation, it is quite natural that there will be disputes about the terms of the division of powers. In most of the federal system, this problem is solved by the creation of a supreme court that acts as the balance-wheel. Its function is to see that the rights and duties of the general and regional government keep to the schedule laid down in the constitution. Thus in all matters affecting the constitution, the supreme court acts as the final arbiter.