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Reposted from September 18
José Maria Serna, Professor at the Institute of Legal Research of the National University of Mexico, blogs about the upcoming IACL/AIDC Roundtable on Federalism and decentralization in the C21.
The IACL/AIDC Roundtable on Federalism and decentralization in the C21 shall take place in the context of the celebration of the 100 years of Mexico’s Constitution of 1917. Throughout all this year, scholars of different disciplines have participated in seminars, congresses and colloquia in order to critically analyze Mexico’s constitutional text, which up to this moment has experienced more than 700 amendments.
Mexico’ Constitution of 1917 was the result of a violent social revolution that started in 1910. After years of a bloody civil war, the chief of the winning revolutionary forces called for a constitutional assembly to reform the previous constitution of 1917. In fact, the result of this process was a new constitution that defined a series of principles such as: representative democracy; republicanism; the separation of State and Church; social rights; the protection of fundamental rights; the Nation’s ownership of mineral resources and federalism.
However, after 1917, and particularly at the end of the second decade of the 20th century, Mexico witnessed the formation of a hegemonic party system. That is to say, a system with a clearly predominant political party, which through its capacity to manipulate electoral processes, was able to control most key political positions both at the federal and state levels. Under this system, the president of the Republic had a wide range of constitutional and informal powers that allowed him to subordinate the national congress, the Supreme Court and state governors.
Thanks to social and political mobilization that for many years fought for the liberalization and democratization of political life, the hegemonic party system collapsed by the end of the 20th century. In the year 2000 the “official“ party lost the presidential election. With this, Mexicans hoped for a new era of true democratic and constitutional government.
How would constitutional institutions work under the new conditions? Which reforms would be necessary to consolidate democracy? Which legacy of the hegemonic party system period that was present in the constitutional text had to be reformed or eliminated? These and many other questions have been raised since 2000, with scholars, politicians and journalists today still debating these issues to try to find possible answers.
Federalism remains one of the topics that is subject to intense debate. During the period of the hegemonic party system, state governors were subordinated to the president of the Republic. For decades, all state governors were members of the “official” party, whose real boss was the chief of the Federal Executive. This situation meant that institutional cohesion, coordination, collaboration among the different entities of the federal arrangement was guaranteed by the formal and informal powers of the president of the Republic. In the last instance, the president had the power to impose discipline on all political actors, including state governors.
However, the hegemonic party system is gone, and this has created several challenges as to how Mexico’s federal system should work. It is in this context that IACL/AIDC Roundtable on Federalism and decentralization in the C21 shall take place, in November 9 and 10 of 2017. From Mexico’s perspective, the goal is to discuss the different models of federalism and decentralization that exist today in the world, in order to identify institutions, principles, rules and practices that could be used to improve Mexico’s federal system.
In Panel I (“Why federalism and decentralization?”) participants are invited to reflect on the reasons for having a federal or decentralized structure of government. Is it because of ethnic or national cleavages; functional efficiency; external threats; territorial extension; or perhaps because of a combination of these factors?
Moreover, constitutions of federal and decentralized states frequently establish a set of federalism-related principles to structure the system or to provide avenues to solve disputes concerning distributions of powers and competences among the different levels of government. If not mentioned in an express way, it is not uncommon to see how constitutional courts have constructed such principles through interpretation. In Panel II (“The organizing principles of federal and decentralized constitutional arrangements”), we will engage in a comparative exercise to analyze how constitutional courts use the following principles: collaboration, comity, coordination, cooperation, subsidiarity.
In Panel III (The role of constitutional courts in enforcing or monitoring federalism-related principles) participants are invited to reflect on how constitutional courts in federal and decentralized systems have developed judicial doctrines to enforce and monitor federalism-related principles in order to perform this conflict-solution function. This is important, because conflicts of competences are part of the normal life of federal and decentralized systems, and constitutional courts are called to solve these conflicts, interpreting the formulas for the distribution of powers among the different levels of government.
The topic of Panel IV has to do with the role of second chambers in federal systems. Second chambers in federal and decentralized systems are supposed to function under the logic of territorial representation, giving voice to state or regional interests and demands at the level of federal or central government. However, the advent of political parties in the modern constitutional State has introduced a different logic: the logic of party representation. Which logic prevails in second chambers today? How do these two logics combine with each other, and what results do they produce in the functioning of second chambers of the different federal and decentralized systems? Are there other functions that second chambers could perform today?
Panel V will deal with the different forms of Intergovernmental relations between federal and state executives. Federal, state and local structures of government must interact in different ways in order to solve social problems and demands. It can be argued that most federal and decentralized systems tend to transit from a model of “duality” to a model of “coordination” of “collaboration”. How do modern constitutions of federal and decentralized systems structure intergovernmental relations? Participants in this panel are invited to reflect on this question, and identify mechanisms of collaboration such as intergovernmental agencies with deliberative or decision-making powers; intergovernmental covenants or agreements; mechanisms for the organization of metropolitan zones; and even informal mechanisms of collaboration among the different levels of government.
Finally, in Panel VI (“A constitutional approach to fiscal federalism), participants are invited to discuss the following questions: How do constitutions design fiscal arrangements in multi-order structures? How to accommodate autonomy and differentiation with solidarity and equity within the constitutional fiscal regimes? How do constitutions regulate intergovernmental cooperation in the fiscal area? How do constitutions regulate transfer payments or grants, by which the federal government shares revenues with the other orders of government? Do constitutions in federal and decentralized states promote collaboration, balance, responsibility and accountability in the fiscal area?