Addis Ababa University Joint PhD Programme in Peace, Federalism and Human Rights

Federalism and Nation Building: The Challenges of Multiculturalism

7th Class

Prof. Thomas Fleiner (ideas Prof. Lidija Basta Fleiner)

Outline:

• I –Introduction: Nation-Building and Diversity– I.1. In General– I.2. Case Studies

• II –Federalism and Nation-Building in Multicultural Societies– II.1. Federal Strategies for Nation-Building– II.2. Federalism without Nation-Building:

European Union– II.3. Federalism and Post-Conflict Nation-

Building: the Role of the International Community

I. Nation building and diversity:

• In terms of prevailing liberal nation-concepts, ethnicity influences upon a nation-concept remained “stretched out” between: – assimilation model-citizenship without

nationalities US, FR) – Civic/democratic state for a majority

nationality (Germany)– the integration model – citizenship out of

democratically integrated nationalities (pluralistic democracies – CH, Canada, India)

• A global paradox of the two processes running parallel in the post-modern politics: “nation-building” on one side, and “breaking of nations”, on the other: Glocalisation

I.1. In General - Key Ambiguities of a nation-building reconciling unity and

diversity

• How far should diversity be accommodated in order to sustain and not menace unity – the dynamics of balancing - a critical level of reconciliation between unity and diversity as a condition sine qua non for nation building.

• What federal institutional designs can mitigate the conflicts arising out of the issues of recognition, representation and resource sharing -> the centrality of trust and tolerance as state-making and nation-building values, sustaining ‘federal qualities of the society”.

I.2.Viability of nation-building and federal designs in action: Two case-studies

• In what phase of constitution making as a nation-building process the diversity has already to be built into unity?

• Is an active federal constitutional judiciary, producing “case-law” constitution-making, conducive to bringing diversity and unity in balance?

I.2.1. Malaysia - Constitutional judicial review matters

• The centrality of the constitution and a paramount role of judiciary in protecting minority rights within multicultural societies

• The absence of judicial restraint and a growing practice of the Court to use implied-powers doctrine in order to overrule personal application of Islamic laws

• Lessons learnt: 1/ a creative role of judicial constitutional review in

multiethnic federations, unlike United States of a “melting pot” nation, can sometimes prove detrimental for inter-communal peace

2/ There is a structural obstacle in reconciling unity and diversity if public sphere remains officially dominated by a majority community.

I.2.2. South Africa - A two-stage constitution making - stepping-stone

for nation building

• Two stage model of negotiating an interim constitution and constitutional principles that are binding also for the freely elected democratic assembly - notably the inclusion of a constitutional court created under the interim constitution in the process of reviewing the final one

• The constitutional assembly in South Africa heavily built on pluralistic inclusion of the main political forces, publicity and adherence to the rule of law for the missing principle of democratic legitimacy.

• A federal constitution with strong unifying features and without the word “F” mentioned:

• The “judicialisation of federal claims” in South Africa rightly criticized

• The phenomenon greatly builds on a very active role of the Court because it had the power to review the compliance with some of the un-amendable constitutional principles in the interim Constitution, many of them substantive enough

I.2. Common to both cases

• The disputable role of judicial constitutional review

• Considerably negative effects on communal

relations that a pronounced role of judicial review may play in multicultural federal states convincingly tell that contested issues may directly question the long-term viability of reconciliation between unity and diversity.

II –Federalism and Nation-BuildingII.1. In General

Major aim lacks major preconditions:

– The ongoing search (process) of the sources of democratic unity in a multinational state – another case of „daily plebiscite“?

However:– Multicultural federalism starts with a low

level of legitimacy due to the lack of trust and tolerance – it has to create their own preconditions!

II.1 - Consequence: the centrality of constitution-making

• Constitutional consensus as an instrument of democratic inclusion of cultural diversities, identifying the minimal level of sources of democratic unity

• A constitutionally established balance between self-rule and shared rule means that constitutional legitimacy is a critical initial step: consensus in a federal state (federal compact -> federal loyalty ) brings together a majoritarian democratic + con-federal principle

II.1.1. – Federal strategies towards nation-building

• coming together” federalism

• “holding together” federalism

• “putting together” federalism

• “enforcing together” federalism ? (LB)

II.1.1. “Coming-together federalism”

• A largely voluntary bargain of autonomous units, pooling sovereignty in order to increase their security and welfare, while retaining their identity

close to ideal type:• USA 1787• Switzerland 1848• Australia 1901further from the ideal type:Canada 1867Germany 1870/1919/1949Austria 1918Brazil 1891European Union?

II.1.1. “Holding-together” federalism

• Consensual, mostly parliamentary decision to hold together a unitary state by creating a multinational federal system:

India 1950Spain 1978Belgium1993

II.1.1. “Putting-together” federalism

• Largely coercive effort by a centralizing power to put together a multinational state, some units of which had been independent states –> non-democratic federations:

Soviet Union 1922Yugoslavia?1945/1963 (LB: a legitimate

federal state project ending as imposed federation)

• LB: „Enforcing-together” federalism has been emerging: international community as “constitution-making power” – another case of “post-sovereign constitution-making”!

II.2. Federalism without Nation-Building: European Union

Two different understanding of the constitutive specificities of EU federalism:

• US is a constitutional compound democracy, whereas EU is a compound democracy in the process of Constitutionalisation with uncertain outcome (Fabbrini).

• EU does bear some of the important features of, but is not a federal state The Constitutionalisation process of EU is substantive, but not democratic – there is no EU demos. EU is a form of federalism without constitutionalism.

II.3. – Federalism and Post-Conflict Nation-Building: the Role of the International

Community

• International Community as a new “Pouvoir Constituant” – a come back of constitution-making and withering away of its democratic nature

• Hardly a place for democratic nation-building and a positive role of federalism in generating trust and tolerance

• A systemic ambivalence of the involvement of IC in constitution-making and sustaining federalism as part of nation-building: no common identity but geo-strategic interests of regional (in) stability behind these constitutions.

• The result is a permanently re-negotiated state and constitutional fictions (Dayton Bosnia, State Union of Serbia and Montenegro, Iraq).

II.3. – Democratic constitutionalism instead of „managed constitution-making“

• Three important conditions for constitution -making as part of nation-building in multicultural societies are lacking:

• a/ the process should ensure that the constitution is legitimate and legal;

• b/ it should guarantee inclusion as a proof of the respect for diversity; and

• c/ the process should promote a direct participation of the public in constitution making

II.3. – Conclusion 1

• “Facilitated” constitution-making and imposed federal arrangements go against nation-building sustainable democratic state-reconstruction.

II.3. cont.: “Constitution-building” as part of post-conflict nation-building (Y. Ghai)

• “Constitution-building” as part of post-conflict nation-building:

1. To establish (or reinforce) political community, which implies that diverse communities have agreed to live together (the formation of political community on consensual terms)

2. To establish (or reform) new rules for the allocation and exercise of state powers, since the contestation over old ones has been the cause of conflict and instability.” (Y. Ghai)

II.3. Conclusion 2: Constitution-Building is Demanded!

• There can be serious tensions between the two tasks, and the IC has no democratic legitimacy for either of them!

• “Managed constitution-making doubles” as a result, leaving the sense of betrayal by the affected societies.