ArticlePDF Available

Constitutional Transitions and Territorial Cleavages



Increasingly, an important—even central—issue in constitutional transitions is dealing with the diversity of populations in different regions, i.e., with territorial cleavages. When this territorial dimension is important, it can greatly complicate both the process of constitution making and the design of legitimate and stable constitutional institutions. Put simply, the theory and practice of constitution making often implicitly presupposes that there is a single people, and that the purpose of constitution making is for that entity to decide on the constitutional framework under which this people will govern itself. However, in many cases the very idea of a single people is not accepted—or is seriously qualified by deep diversity that creates a layered or composite national identity. Such demographic diversity can have serious implications for how constitutional processes are conducted and how constitutional institutions are designed, especially when it has a strong territorial dimension. This is an increasingly pervasive phenomenon in contemporary constitution making. In the last two or three decades, many countries that have engaged in constitutional debates have had to address (or are continuing to address) the territorial character and structure of the state. The diversity of these countries suggests that no single process or institutional design provides policy makers with a simple formula to address their different circumstances. This paper presents a framework for considering constitutional transitions that involve significant territorial cleavages. It is designed to assist political leaders, citizens and advisers engaged in a process of constitutional transition where the territorial character and structure of the state is an issue alongside other constitutional questions. After briefly discussing the significance of constitutions and the nature of constitutional transitions, it considers the political nature of territorial cleavages, the challenges they can present for constitutional processes that are not always framed with territorial issues in mind, and some options for constitutional design that may help manage or accommodate such cleavages.
Constitutional Transitions
and Territorial Cleavages
George Anderson and Sujit Choudhry
Edited by Sumit Bisarya,
International IDEA Constitution Building Programme
Constitution Building Processes
© International Institute for Democracy and Electoral Assistance 2015
International IDEA
Strömsborg, SE-103 34, STOCKHOLM, SWEDEN
Tel: +46 8 698 37 00, fax: +46 8 20 24 22
E-mail:, website:
e electronic version of this publication is available under a Creative
Commons Licence (CCl) – Creative Commons Attribute-NonCommercial-
ShareAlike 3.0 Licence. You are free to copy, distribute and transmit the
publication as well as to remix and adapt it provided it is only for non-
commercial purposes, that you appropriately attribute the publication, and that
you distribute it under an identical licence. For more information on this CCl,
see: <>.
International IDEA publications are independent of specific national or
political interests. Views expressed in this publication do not necessarily
represent the views of International IDEA, its Board or its Council members.
Graphic design by: Turbo Design, Ramallah, Palestine.
Printed in Sweden
ISBN: 978-91-7671-007-4
Introduction ...............................................................................................................................................
Constitutions and constitutional transitions ........................................................................
Territorial cleavages and political mobilization ..................................................................
THE HISTORY OF INTER-GROUP RELATIONS ...........................................................................
THE NATURE OF DIFFERENT IDENTITY GROUPS ...................................................................
ELITESAMBITIONS AND STRATEGIES ........................................................................................
ORGANIZATIONAL RESOURCES .....................................................................................................
INTERNATIONAL INFLUENCES AND FOREIGN ACTORS ........................................................
INTERNAL GROUP DYNAMICS ......................................................................................................... 
Dealing with territorial cleavages in the constitution-making process ............... 
MINORITIESFEAR OF MAJORITARIANISM ............................................................................... 
NEGOTIATIONS ........................................................................................................................... 
NATIONAL DIALOGUES ............................................................................................................ 
ELECTIONS ..................................................................................................................................... 
DRAFTING .................................................................................................................................... 
THE CRITICAL ISSUE OF INCLUSION ........................................................................................... 
Constitutional design and territorial cleavages ................................................................... 
THE UNITS OF DEVOLUTION .......................................................................................................... 
CRITERIA FOR DEFINING CONSTITUENT UNITS ......................................................... 
TIMING AND PROCEDURES FOR DRAWING THE MAP ................................................ 
THE FORM OF DEVOLUTION ........................................................................................................... 
SYMMETRICAL MODELS .......................................................................................................... 
ASYMMETRICAL MODELS ....................................................................................................... 
NATIONAL INSTITUTIONS AND DECISION MAKING ............................................................. 
CONSOCIATIONAL ARRANGEMENTS ................................................................................. 
THE EXTENT OF DEVOLUTION ....................................................................................................... 
SYMBOLIC, LINGUISTIC AND RELIGIOUS ISSUES .................................................................... 
Conclusions ................................................................................................................................................ 
References ................................................................................................................................................ 
On any given day, perhaps 15 or 20 countries around the world are debating significant
changes to their constitutional arrangements. Some may be engaged in a transition
from authoritarian to democratic rule, while others may already be democracies but are
engaged in constitutional debate over how that democracy is structured. Increasingly,
an important—even central—issue in constitutional transitions is dealing with the
diversity of populations in dierent regions, i.e., with territorial cleavages. When
this territorial dimension is important, it can greatly complicate both the process of
constitution making and the design of legitimate and stable constitutional institutions.
Put simply, the theory and practice of constitution making often implicitly presupposes
that there is a single people, and that the purpose of constitution making is for that entity
to decide on the constitutional framework under which this people will govern itself.
However, in many cases the very idea of a single people is not accepted—or is seriously
qualified by deep diversity that creates a layered or composite national identity. Such
demographic diversity can have serious implications for how constitutional processes
are conducted and how constitutional institutions are designed, especially when it has
a strong territorial dimension.
is is an increasingly pervasive phenomenon in contemporary constitution making.
In the last two or three decades, many countries that have engaged in constitutional
debates have had to address (or are continuing to address) the territorial character and
structure of the state.1 e diversity of these countries suggests that no single process
or institutional design provides policy makers with a simple formula to address their
dierent circumstances.
is paper presents a framework for considering constitutional transitions that involve
significant territorial cleavages. It is designed to assist political leaders, citizens and
advisers engaged in a process of constitutional transition where the territorial character
and structure of the state is an issue alongside other constitutional questions. After
briefly discussing the significance of constitutions and the nature of constitutional
transitions, it considers the political nature of territorial cleavages, the challenges they
can present for constitutional processes that are not always framed with territorial
issues in mind, and some options for constitutional design that may help manage or
accommodate such cleavages.
1 ese include: Belgium, Bolivia, Bosnia and Herzegovina, Canada, Columbia, Cyprus, Democratic Republic of
Congo, Ethiopia, India, Indonesia, Iraq, Italy, Kenya, Libya, Myanmar, Nepal, Nigeria, Pakistan, Papua New
Guinea, Peru, Philippines, Russia, South Africa, South Sudan, Spain, Sri Lanka, Sudan, Ukraine, the United
Kingdom and Yemen.
Constitutions and constitutional
Constitutions, which are the supreme law of a country that establishes the organization
of the state, vary enormously in substance and detail. ey can be very short (simply
establishing the most important political and judicial institutions of the central
government, setting out some rights and principles, and providing a few other elements
of state organization) or very long (with extensive preambles, great detail about major
institutions, provisions for many special institutions, extensive schedules of social and
economic rights in addition to civil and political rights, and frameworks for programmes
or policies that might elsewhere be dealt with through ordinary legislation). Whatever
their substantive content, constitutions also have great symbolic importance as
embodying the identity of the political community and its basic commitments. Because
of the substantive and symbolic importance of constitutional texts, debates around
them can be heated.
Constitutional transitions—political transitions marked by constitutional replacement
or significant reform—are often significantly more dicult in countries with marked
territorial cleavages than in more homogeneous countries. Territorially divided countries
can confront very divisive questions about their nature, and even their legitimate
existence. e territorial issue can go to the very heart of defining political communities
and of legitimate democratic institutions.
Democratization may increase levels of tension between ethnic or other identity groups.
Indeed, transitions to democracy have very often emphasized procedural or majoritarian
democracy, with a heavy focus on elections rather than a more substantive approach that
is sensitive to minority rights and aspirations. e principles of majoritarian democracy
may not be accepted by one or more populations in some regions of the country, which
fear domination by a majority that is dierent in important ways from themselves.
Under authoritarian rule, there may have been little political space for these contending
constitutional claims, and the transition to democracy may provide the space for these
issues to come to the fore. Major political transitions can be periods of great promise,
but also of significant risk. A process that fails to address these issues successfully can
lead to majority oppression; the breakdown of democratic order and civil war. us
constitutional processes must be carefully framed in such a context.
is paper explores these issues in relation to three major, interconnected dimensions:
1. Political mobilization: What factors make territorial cleavages politically salient
in a constitution-making context? And what makes them more (or less) dicult
to manage?
2. Constitution-making processes: How do territorial cleavages aect the processes
of making a constitution? What options find their way onto the agenda? Who
will represent territorial interests, and how are they included in the constitution-
making process?
3. Constitutional design: How do territorial cleavages relate to the possible character,
principles and structure of the central state? How can major options such as
federalism and devolution, special autonomy regions, power sharing within
central institutions, and linguistic and religious arrangements potentially address
dierent societal contexts? Where federalism is an option, how should sub-units
be determined and delimited, and to what extent can they determine their own
internal arrangements?
While the focus of this paper is on factors directly related to constitution making,
the success or failure of many constitutional transitions is closely tied to broader
contextual matters, such as the quality of governance and the security situation during
a transitional period. Given their complexity, constitutional debates and reform can
take many months—even years—and the public’s attitude toward the political class
and the products of a constitutional process may be strongly coloured by the economic
and security situations and general government performance. It is a familiar story that
success builds upon success, while diculties in one area can undermine even a well-
executed approach in another—in this case, a major constitutional review. Moreover,
if the security and economic situations become too dire, it may prove impossible to
manage or complete a constitutional process with any degree of legitimacy.
Territorial cleavages and political
While some societies are relatively homogeneous across their territory, in other cases
regional dierences become a defining characteristic of a country. Societies may have
many potential social and political cleavages, but not all of them become politically
organized and salient. e extent and nature of political mobilization around territorially
concentrated populations depend on many factors, including the past history of
discrimination and conflict between groups, a group’s geographic concentration or
dispersion, whether a group defines itself as a ‘nation’, the strategies of group leaders and
the group’s internal dynamics, the organizational resources and opportunities available
to groups and international influences and interference.
Understanding the context in which mobilization around territorial cleavages has
developed is therefore essential to appreciating the likely implications and consequences
of dierent constitutional process and design options. e political mobilization of a
territorial population is aected by many factors, and the form it takes can be critical
for shaping the evolution of a constitutional transition.
The history of inter-group relations
A central factor that shapes group identities and political mobilization is the history of
relations among groups. In particular, a population or group that has faced a history
of oppression, dominance, discrimination or attempted assimilation is more likely
to develop a heightened group consciousness and political agenda; its disadvantage
may have been political, economic or cultural—or a combination. While politically
mobilized minorities are often motivated by economic discrimination or disadvantage,
some economically advantaged regional minorities, such as the Catalans and Basques
in Spain, have mobilized around other issues, including past attempts at cultural
assimilation. Historically dominant groups, which may be either a minority (e.g., the
whites in apartheid South Africa) or a majority (e.g., the Sinhalese in Sri Lanka), may
feel threatened by the political mobilization of the majority, or of an important minority,
and mobilize themselves in reaction. Periods of political transition can be particularly
unsettling as the power relationships between groups shift, which may cause a larger
breakdown in relations, including violent clashes.
The nature of different identity groups
Some groups within a country define themselves as ‘nations’ or ‘nationalities’, which
typically distinguishes them from other populations in their constitutional demands.
National groups often seek the means to ensure not just their survival but also their
full expression. When they are minorities, this often means seeking autonomous
arrangements—up to and including the right to independence. Seemingly similar
groups can be quite dierent in this regard: for example, in Sri Lanka, the Northern
Tamils see themselves essentially as a nationality, but the hill Tamils, who descend
from more recent immigrants, do not; thus the Northern Tamils assert much stronger
claims to autonomy. When a national group constitutes a majority, it is more likely to
promote a strong central government. However, in some cases, as with the Flemish
in Belgium, majorities may prefer more regional autonomy to avoid joint decision
making or subsidizing minorities. Majoritarian nationalities sometimes define the
country narrowly as the political extension of their groups—in which case they may
see minorities as illegitimate or second-class and perhaps subject to an assimilationist
policy—but in other cases they view the country broadly in pluralistic terms, with their
nationality as only one among others, which creates the potential to accommodate
other nationalities.
Elites’ ambitions and strategies
Ambitious political leaders can sometimes mobilize a group by ‘playing the ethnic
(religious, etc.) cardand stirring up resentment or fear in order to win elections or
political advantage. While there can be largely spontaneous mass movements that are
not elite-driven, even these require leadership if they are to function eectively over
time. And a group’s leaders may have very dierent personal or political agendas, which
can cause the group to splinter into opposing factions. Competition among leaders can
expose the complex composition of a social group, so that dierent parts of a community
may advance conflicting objectives during a constitutional transition.
Organizational resources
e organizational structure of a country undergoing a constitutional transition
can often have a major influence in shaping the political forces because groups with
established organizational resources are more able to mobilize. ese resources can
be well-known traditional leaders or sub-units that provide a platform for political
mobilization; political parties that existed under the previous regime; groups with a
history of organization through unions, religious organizations, community groups
or non-governmental organizations; or an armed rebel group that fought in an
insurgency. While constitutional transitions, especially those ending an authoritarian
regime, are often characterized by mass demonstrations, these mass groups frequently
incapable of coming together and forming eective organizations, while more
networks, such as the Muslim Brotherhood in Egypt, often become
electorally very eective. When very oppressive regimes such as Gaddafi’s in Libya fall,
there may be almost no organizational resources on which political forces can build
quickly, which can lead to major problems in terms of structuring a coherent transition.
Of course, if a transitional period lasts long enough, there may eventually be political
mobilization around new groups and issues.
International influences and foreign actors
Outside actors and developments often strongly influence political transitions. is
may be through contagion, as was seen in the spread of mass political mobilization
across countries during the Arab Spring. It can also be via the direct intervention of
outside actors, including foreign governments, regional organizations and international
organizations. Outside actors may sometimes support constitutional transitions, but
outside intervention is not always benign. A foreign power can sometimes intervene to
support a political movement within a country, to mediate a transition or even to topple
a regime. Diasporas can provide funding for insurgencies or political groups and are
often a source of returnees, who may assume leadership positions.
The geographic concentration or dispersion of groups
Territorially concentrated populations often have a sense of shared history and identity
around which they can mobilize. ey can have major organizational advantages
over more dispersed groups: communication is easier (as is organizing demonstrations
and mass disobedience) and so they may be able to win political assets—e.g., seats in
parliament, control of local governments—that give them leverage. In extreme cases a
regional group may resort to insurgency, and this too is easier to manage in the territory
of a supportive population. A regionally concentrated group can also credibly threaten
with secession. Some small but geographically concentrated insurgencies (e.g., Aceh
in Indonesia, Bougainville in Papua New Guinea) have won concessions that would
have been unimaginable for similarly small populations scattered across a country.
is potential of regionally concentrated minorities means that some countries, such as
Nigeria, try to limit their right to mobilize politically by requiring political parties to
have a multi-regional character.
Internal group dynamics
All groups—minority or majority—have their internal divisions and dierences, which
may find expression through competition among elites or in other ways. Identity groups
have fluid boundaries, in that their members identify with the group with diering
degrees of attachment and have other, sometimes cross-cutting, identities as well. us
the political mobilization of territorial cleavages, like political mobilization around
other factors, is dynamic; not every territorially concentrated identity group mobilizes
in a united fashion. For example, the populations of Quebec and Scotland are deeply
divided over the issue of whether to seek independence.
Dealing with territorial cleavages in
the constitution-making process
In some constitutional transitions, one or more territorially-based populations may be
mobilized around certain constitutional objectives, such as devolution, autonomy or
power sharing. e transition process may be either accommodating or resistant to the
claims of such groups. is is partly a question of legal framework and rules, but more
fundamentally of the attitude of other groups. e influence of territorial groups may
depend on the process that is adopted, including such elements as negotiations, national
dialogues, elections, the composition and rules of the drafting body, and the ratification
Minorities’ fear of majoritarianism
While constitutional transitions address important issues about the desired character
and structure of a state, they often must first deal with the more immediate issue of the
process of resolving these longer-term questions. In many constitutional transitions, the
major objectives that need to be addressed are clear and widely shared, such as moving a
regime toward democracy. But some cases are complicated by the issue of how the state’s
principles and structures should reflect the existence of dierent groups, including
one or more territorially concentrated groups. While the objective of moving toward
democracy may be common to all groups, the precise kind of democracy may be a
major issue of contention. In particular, certain populations, which may be territorially
concentrated, may fear that majoritarian democracy would lead to their long-term
domination by a distinct—perhaps unsympathetic, or even hostile—majority, so they
may seek special protections, autonomy and power-sharing arrangements. is fear can
be especially prevalent in a post-conflict situation in which armed groups that have
been engaged in violent conflict may still have little mutual trust, but now must find a
long-term institutional solution to enable them to live together. Where a minority that
is territorially concentrated believes that it would not be treated fairly in a governance
structure that could be controlled by the majority, it is natural for it to seek some degree
of autonomy through the devolution of responsibilities to a territorial government in
which it would form the majority.
Legal continuity or revolutionary break in constitution making
An early question in many transitions is whether the process of constitutional reform
should be conducted within the legal framework of the predecessor regime, which
would involve respecting the amending procedures set out in that regime’s constitution.
Some who are attached to the old regime will insist that legal continuity is necessary
if the reform is to be legitimate. But respecting the rules and institutions of the old
regime may favour one group over another, and thus put certain groups at a serious
disadvantage in the reform process. Such groups may argue that there needs to be a clean
break from the old regime, and that new, fair rules and institutions must be developed
that are more appropriate to the current situation. ere may be a revolutionary break,
in which the new regime bases its legitimacy on the notion of popular sovereignty or
the rights of the revolutionary group. But abandoning the old constitutional framework
raises the question of how to define the rules and institutions that guide the process
of making the new constitution. Because of the diculty of resolving these questions,
many constitutional transitions are characterized by unclear or contested rules, and a
good deal of muddling through. Territorially-based minorities may find that operating
within a context of legal continuity makes it more dicult to achieve their aims,
because the existing rules of amendment may require supermajority support, which
gives ‘spoilers’ in the majority group a veto over constitutional change.
Duration and differing elements of constitutional transitions
Constitutional transitions vary greatly in length. When a clear victor has taken over the
government, or when a peace settlement is imposed through international mediation,
the process may be completed in a year or even less. However, it is not unusual for
a transitional process to take many years (or even decades) and go through several
phases, especially if there is intense politics, with dierent parties seeking advantage or
working toward mutual understanding and agreement. Each phase of a process may be
characterized by specific activities. e key types of activities include:
negotiations among political principals;
national dialogues involving a broader cross-section of political actors;
elections to formal political institutions;
drafting of constitutional texts, which often involves technical legal advice; and
ratification by a legislative body or referendum.
Not all processes will have all of these activities; the activities may also overlap, and
their sequence can vary. e approach taken to each of these activities will be shaped
by the objectives and strengths of the key actors, and by whether the process is taking
place within an existing constitutional framework (which will set various rules for
representation, processes and approval of changes) or in a legal rupture (which will
leave more discretion as to the rules and processes adopted). When territorial cleavages
must be managed as part of the constitutional process, there can be issues around
representation, participation and approval by representatives of territorial groups,
especially minorities, in each of these activities. We briefly review these activities to
consider how they may reflect the territorial dimension of a constitutional transition.
Negotiations are usually central to post-conflict situations in which no clear victor has
emerged, and in post-authoritarian transitions that involve representatives of the old
regime and democratic forces. In either scenario, if there is a territorial cleavage, careful
attention should be paid to how to include territorial parties. For example, territorial
parties may be negotiating with each other (e.g., Bosnia and Herzegovina, Cyprus)
or with the central government (as in Indonesia for Aceh and in the Philippines for
the Bangsamoro of Mindanao). In South Africa, the early phase of the constitutional
transition consisted of negotiations between the apartheid government and the African
National Congress (ANC). e negotiations were broadened in due course to include
regional parties (one of which won key concessions, even though its support was not
technically required for an agreement). Of course, negotiations take place in legislatures
and constitutional conventions as well, but the dynamic is dierent in a plural,
political context than in a bilateral negotiation for a peace agreement or a post-conflict
settlement. And the dynamic is dierent again when a strong leader or dominant party
can impose a new constitution with minimal negotiations, which may make it hard to
accommodate a distinct regional presence.
National dialogues
Some countries sponsor a national dialogue process on their constitutional future before
entering the more formal phase of drafting a constitution or electing a constitutional
assembly. Sometimes, as in Yemen, the dialogue process serves as a substitute for elections,
which cannot be held for security or other reasons. National dialogues typically have
several hundred participants who are chosen, not elected, through a process that is meant
to produce an assembly that is broader than the traditional political and military elites
and includes representatives of civil society, often with a strong emphasis on women,
youth and certain marginalized groups. A dialogue can be given an ambitious mandate,
but these mechanisms are rarely capable of producing the kinds of detailed decisions
required to create a complete constitution. However, they may help set the broad context,
establish some key principles to govern the constitution-making process and perhaps make
a few strategic decisions. When territorial cleavages are important, a dialogue process can
help populations from dierent regions express their dierent perspectives and become
sensitized to one another’s concerns. e dialogue process in Yemen was designed with a
strong focus on the Southern question, so southerners were heavily over-represented and
there was a working group on southern issues (and another on a northern province). Such
dialogue processes tend to seek broad consensus, which can mean that they may help
create a more favourable environment for subsequent decision making, but typically they
leave many issues unresolved. Given the limitations of dialogues, relying too much on
them can discredit the constitutional review process as the population becomes impatient
for results (though this also happens in some large constituent assemblies).
It may seem natural to hold elections early in a constitutional transition in order to
select a legislature or constitutional convention that has popular legitimacy. ere is
a case for doing so, especially in relatively homogeneous countries where the major
issue is the transition to democracy and the previous regime lacks legitimacy. Yet
even in such situations an election may be a polarizing event that does not include
all major political interests in a constitutional negotiation. In divided societies with
a deep political cleavage between a majority population and one or more minorities,
elections can also be threatening to territorial minorities, who may fear an elected
body operating on majoritarian principles because elections tend to be based on
‘representation by population’. e first elections of a constitutional assembly in Nepal
produced a body that was deeply divided, notably on federalism issues, and incapable
of reaching an agreement. Eventually, new elections were held that produced a body
capable of achieving the necessary supermajority for constitution making. However,
even this majority may find it politically impossible to impose a constitution without
some agreement with the opposition.
Various bodies can be given responsibility for preparing a draft constitution—for
example, an expert commission or a committee of the legislature or constitutional
assembly. In some cases, such as Nigeria under the generals or Ethiopia after the civil
war, the government eectively controls the drafting and there is minimal room for
political discussion, including for territorial minorities. In Ethiopia, for example, a
large Oromo faction left the government coalition in frustration over the constitution
that was being imposed by the government. In countries where the politics is more
fluid, expert commissions with some genuine independence may be mandated to
prepare a draft. e membership of such commissions can be representative of dierent
groups, including territorial minorities (as in Yemen, where the Constitution Drafting
Committee, which followed the National Dialogue, had equal representation from the
North and South). Moreover, hearings may be held throughout the country and in
minority languages, which allows for greater input from territorial minorities. However,
even very representative independent commissions risk having their proposed draft
rejected if there is no buy-in from elected politicians, as happened in Kenya in 2004.
Ratification by legislative bodies or referendums
Legislatures or constitutional conventions can have the final authority to ratify a new
constitution or constitutional amendment. Often such bodies will be organized into
thematic sub-committees, some of which may deal with issues relating to territorial
cleavages. Representation for territorial minorities on such committees is crucial, as is
representation on the committee responsible for collecting and harmonizing the work
into a draft text (often called the ‘Constitution Committee’ or ‘Consensus Committee’).
In addition, while special decision rules, such as a supermajority of 60 to 75 per cent,
may give some protection to territorial minorities, depending on their size, there is little
precedent in such cases for giving a particular territorial minority a veto if it does not
meet a more generic criterion, such as population size. In Nepal, a threshold of two-
thirds of the Constitutional Assembly is formally required to adopt a new constitution,
but this may not prove politically sucient because the Maoist and other opposition
parties have threatened civil disobedience if the constitution is passed without their
approval. reshold requirements for constitutional change can be particularly high
in established federations, which often have very rigid amending formulas that require
majorities—sometimes supermajorities—both in the central legislative bodies and in
voting by the legislatures or populations of the constituent units. ey can even give
vetoes to individual units of the federation.
ere is also the alternative of submitting the proposed draft to the population in a
referendum. If the rule is simply majoritarian, this may not be satisfactory to a territorial
minority. A number of federations use referendums to ratify constitutional amendments
and require a special majority, e.g., Switzerland and Australia, which require a double
majority of voters nationally and of voters in a majority of constituent units. However,
even supermajority requirements may not be enough to protect a particular territorial
minority if it is small. e alternative to supermajority requirements is vetoes. For
example, in Cyprus, ratification of the constitution by referendum required a majority
in both the Greek and the Turkish communities: the minority Turks voted in favour
but the majority Greeks voted against, and the constitution was not adopted. In
Iraq, the Kurds negotiated an agreement before the constitution was drafted that its
ratification would be by referendum, and that any three provinces voting no by a two-
thirds majority would defeat it. is gave Kurdistan an eective veto and enabled it to
exact major concessions in the preparation of the draft constitution. Paradoxically, it
was the three Sunni provinces that almost defeated ratification in the eventual vote.
While referendums are sometimes thought to oer greater legitimacy to ratifying a
constitution or constitutional amendment, they are also politically riskier than assigning
ratification authority to the body that has drafted the constitution. e likelihood of
the constitution not being ratified, or at least not being approved by an important part
of the population—especially in highly fraught situations—may be higher if the draft
must be approved by the constitutional assembly or legislature as well as the population.
The critical issue of inclusion
is brief review shows that it is possible to design virtually all of the main activities
potentially associated with a transitional process to include the representation of one
or more territorial minorities. Whether minorities will be included in practice—and
to what extent their interests will be accommodated—will depend heavily on the
objectives of the strongest players guiding the process. If their objectives include reaching
an accommodation with a territorial minority, then they will consider how to bring
representatives of that minority into the process and how they might accommodate
them substantively in the constitution. But if they are hostile toward the minority, they
may not seek to accommodate it in the process or in the final result. e Rajapaksa
government in Sri Lanka, heavily supported by the Singhalese majority, was not prepared
to accommodate the Tamils after their military defeat. However, the electoral defeat of
President Rajapaksa in 2015 reversed this stance, and the minorities and a significant
number of the Singhalese banded together in the election to advance a new constitutional
agenda that is more accommodating of minority concerns. In Bolivia, President Morales
did not want to grant representatives of the Eastern lowlands the autonomy they
sought, but once he had clearly defeated them in elections and a referendum, he was
prepared to negotiate minor accommodations—a striking contrast to Sri Lanka under
Rajapaksa. ere can also be situations, as in Nigeria, in which the rulers (in that case,
generals) impose a new structure for territorial relations (in Nigeria, many new states)
with minimal consultation or agreement. Similarly, outside powers can play a strong
role in a constitutional process, and their priorities regarding timing and substance can
profoundly aect the outcome—as in Iraq, Bosnia and Herzegovina, and Cyprus. In
most cases, however, outside powers play little role or largely serve as facilitators.
us any constitutional process is shaped by the objectives and strengths of the
dierent parties. While dictators or victorious dominant parties may largely impose
constitutional settlements (sometimes ignoring the amendment procedures set down
in the existing constitution), in more balanced situations there is usually some need for
mutual accommodation. Paradoxically, territorial minorities often have a stronger voice
in post-conflict peace negotiations, where their consent is required for an agreement,
than in more majoritarian arrangements, such as elected assemblies. us the very small
minorities in Aceh and Mindanao were able to negotiate directly with the national
governments and win major concessions, which they probably never could have achieved
in an elected assembly operating with majoritarian rules (though the results had to be
confirmed by the national legislatures).
Another factor that dierentiates negotiations in the context of territorial cleavages
is the threat of secession. On the one hand, this ‘exit threat’ may give more power to
territorially concentrated minorities than if minorities are dispersed throughout the
country. However, fear that increased autonomy will lead to secession may also lead the
majority to reject territorial demands or to design the constitution-making process to
weaken or divide the representation of certain territorial groups.
Just as many factors influence the constitutional transition process, the process itself is
an important factor in shaping the final constitution design.
Constitutional design and territorial
While constitutional design can be critical for the political sustainability of a regime,
the design chosen in a particular transition will reflect the power configuration and
objectives of key actors, as well as the process adopted. Where territorial cleavages are
salient, the design options include devolution—to what territorial units and for what
powers or resources—and accommodation regarding the role of territorial minorities
in national decision making, symbols, language policy and so on. e relevance of
dierent design options will depend on the political configuration of the territorial
groups within the country.
The units of devolution
Countries moving to federalism or devolution often face uncertainty about the number,
character and borders of the new constituent units. In several unitary countries, it
has been necessary to draw a new political map, which may involve merging some
existing units into more viable sizes or bringing several criteria to bear in drawing a
fundamentally new map. Decisions about a new map are normally made when the
constitution is being written, but Spain and India left this to a subsequent stage of
redefining their states. Some established federations have merged units or created new
ones long after approving their constitutions. ere have also been instances in which
a failure to settle a disagreement over the political map has blocked agreement on the
constitution itself.
Defining a political map raises issues including the criteria for defining constituent
units, the timing of and procedures for drawing the map, and the constitutional
provisions for changing or adding new units.
Criteria for defining constituent units
e criteria considered can include:
economic factors such as eciency, eectiveness and viability (an argument
for avoiding many small or economically poor units) and grouping economic
socio-cultural factors such as nationality, ethnicity, language, religion, tribe and
geographic features such as natural boundaries like rivers and mountains;
political balance, which may mean breaking up one or more dominant regions,
or a region that may have separatist tendencies, or avoiding a structure with just
two or three units (which are often characterized by divisive politics and political
public opinion, which may be assessed through elections, referendums or public
consultations; and
historical boundaries with which people often identify, which can serve as a useful
reference point and obviate the need to consider other factors in detail when
drawing boundaries.
In practice, the drawing of new political maps seems always to be based on a combination
of some of these criteria, though there can be heated debates around the basic philosophy
for creating units. Perhaps the most contentious issue is the extent to which boundaries
should reflect socio-cultural factors, which can turn on the choice between ‘ethnic’ or
‘territorial’ federalism. Ethiopia and Bosnia and Herzegovina, for example, both have
explicitly ethnic forms of federalism, and there are strong advocates of ethnic federalism
in Nepal’s current constitutional debate. While many federations have a strongly ethnic
or linguistic character in their structure, a pure form of ethnic federalism gives rise to
serious practical issues as well as issues of principle.
It is dicult to implement ethnic federalism in practice, because ethnic groups
almost always have significant territorial overlap and mixing (unless there has been
‘ethnic cleansing’ as happened in the Bosnian conflict). So trying to draw boundaries
on this basis can be very dicult and contentious—and even impossible. It can also
lead to the demand for ever-smaller units, which would be expensive and ineective.
Philosophically, ethnic federalism can undermine common citizenship and minority
rights. If a constituent unit is deemed to belong to a particular ethnic group (or groups),
those from other groups who live there risk being second-class citizens. For example
in Nigeria, groups that are considered indigenous to a state have more rights (such as
access to government employment and some educational programmes) than those who
are ‘settlers’—even if they have lived in the state for generations.
us very few federations have opted for a pure form of ethnic federalism, and many,
such as India and South Africa, have avoided drawing boundaries strictly on the basis
of language or ethnicity, even if these factors weighed heavily. ese complications also
explain the frequent recourse to established boundaries when new maps are being drawn,
because this helps limit potentially dangerous conflicts at the local level. Combining
this approach with provisions to ensure the rights of minorities within the new units
can greatly lower the political stakes—and risk of conflict—of drawing a political map.
Timing and procedures for drawing the map
While some countries, such as Belgium, Kenya and South Africa, determined their
new political map prior to adopting their new federal or devolved constitution, several
others adopted their constitution without having resolved this issue in whole or in
part. India adopted its constitution in 1949 on the basis of a state structure that was
viewed as temporary, which permitted the federation to operate immediately and take
its time restructuring the states. Germany adopted its constitution in 1949 without
having resolved the status of three provinces that were candidates for a merger, which
happened in due course after a referendum. Bosnia and Herzegovina had an unresolved
issue regarding the district of Brcko, which was eventually settled via international
arbitration. Spain’s new constitution in 1978 established criteria and procedures for
creating new autonomous communities, which took place after the adoption of the
constitution. Iraq’s 2005 constitution established a procedure whereby governorates
could become regions, singly or in combination, but only Kurdistan was a region at
the time the constitution was adopted (and no further regions have been created).
Finally, Nigeria’s constitution originally established three states, which proved highly
dysfunctional; since then, the number of states has grown to 36, which has created a
healthier dynamic in terms of relations between regions and tribes, though it has also
strengthened the central government.
ese examples suggest that, while a comprehensive political map is necessary to fully
implement a devolved or federal arrangement, it is not always necessary to complete
the drawing of a new map when approving a constitution, especially if doing so will be
contentious and time-consuming, in which case what is needed is an agreed procedure
for creating constituent units. us, the constitution may establish criteria for this,
but delay their creation to the implementation phase. A federation may start with an
interim map, subject to a thorough review in due course. If there are issues regarding the
boundaries, merger or de-merger of particular units, these may be dealt with after the
constitution is adopted. Revisions are likely to be possible even in mature federations,
though the ease of doing this, as discussed below, will depend on the decision rules
specified in the constitution.
Constitutional provisions for changing or adding new units
Processes for drawing political maps during or after constitutional transitions dier
significantly in how they provide for public consultations or a local role in the formal
decision making. Many new maps have been drawn using an essentially top-down
approach, in which the government or key parties may engage in some consultations, but
take the final decision themselves. us, in Ethiopia, the decision was essentially taken
within the governing coalition (including merging what had temporarily been four states
in the south), while in Nigeria the successive re-drawings were done by unconstitutional
fiat of the ruling generals. South Africa created a multiparty commission to propose a
map based on a number of criteria; the commission consulted the population and then
made its recommendations, which were largely accepted (although slightly revised)
by the political leaders. Similarly, India used a small commission of experts that
consulted widely for its first major state restructuring exercise, and the commission’s
recommendations were largely adopted.
By contrast, Spain’s new constitution combined top-down and bottom-up approaches:
it specified criteria for the creation of autonomous communities, but then let locally
elected ocials in each province decide through a voting procedure on their possible
merger with neighbouring provinces. Iraq’s constitution of 2005 provided a similar
procedure, but the Malaki regime was hostile to federalism and did not allow new
regions to emerge.
Once federations are established, there can be an interest in marginal changes, rather
than a wholesale redrawing of the map. In these circumstances, it can be easier to
accommodate a formal role for public opinion. Germany and Russia have used
referendums on possible mergers (only some of which proceeded), and Germany voted
against a possible de-merger. Australia had a referendum on the possible creation of
a new state out of the existing state of New South Wales. Switzerland, with its long
tradition of direct democracy, created the new canton of Jura out of the existing canton
of Berne, but this required the consent of Berne, and the use of sub-cantonal voting to
determine which parts of Berne would be transferred to Jura. e creation of the new
canton had to be confirmed in a national referendum, but even then the boundary issue
was not fully settled and there were further modifications; others are under discussion.
e rules that federations include in their constitutions for the creation of new
constituent units or revisions to boundaries range from very flexible to extremely rigid.
Procedures may give the authority to the national parliament alone (by simple majority
of both houses, as in India, or by special majority, as in Kenya and Belgium), to the
national parliament plus the aected constituent units (by simple majority, as in the
United States and Australia, or by special majority, as in Pakistan), to the national
parliament plus both the aected and all constituent units (as in Canada), or to a special
majority of constituent units (as in Nigeria). ere can also be procedures for public
initiatives or petitions to start the process of considering boundary revisions or creating
new units (Germany, Nigeria, Iraq). In practice, the division or merger of existing units
in established federations has been rare, because most federations require existing units
to consent to their dismemberment—which few would—and the politics of territorial
division can be especially volatile (as in Nigeria, where the process has been made
almost impossibly dicult).2
The form of devolution
Federal and devolved forms of government vary tremendously in name and form, as
well as in the extent of devolution. ere are both symmetrical and asymmetrical
models for devolution.
Symmetrical models
e most common models of devolution, whether in federal or unitary regimes, are
symmetrical, in that the constituent units are assigned the same (or very similar) law
making and administrative powers. While federations are typically symmetrical, the
political demands for devolution usually vary in intensity from one region to another.
us in a constitutional transition, there may be a consensus on adopting a federal or
devolved structure, but regional representatives may dier on how many powers should
be assigned to the regional versus the national level. Even so, the usual conclusion
is a symmetrical model, which gives all constituent units essentially the same legal
powers. Spain is in some ways the exception that proves the rule: it was expected to
be asymmetrical in form but is now largely symmetrical. e strongest demands for
devolution during the transition from the Franco era came from the so-called historical
nationalities, notably Catalonia, the Basque Country and Galicia. ese groups were
expected to have greater powers than other regions, and the constitution permitted each
autonomous community to negotiate its own autonomy accord within the framework
for the possible devolution of powers. e historical nationalities were the first to
negotiate, and sought as many powers as they could legally have. e surprise was that
the new governments in the other autonomous communities decided that they wanted
essentially the same powers. is may have been because provincial politicians simply
wanted as much power as they could have. Or, symbolically, no one may have wanted
to accept less—or a lesser status—than the others. For whatever reason, and with the
2 In the Western Hemisphere, there were thinly settled areas that were deemed ‘territories’, which did not have the
status of constituent units. Over time, new units were created out of these territories in Argentina, Brazil, Canada
and the United States. However, such creations are not our subject here.
exception of the historical fiscal privileges of the Basque Country, Spain ended up with
a very symmetrical form of quasi-federalism.
During constitutional transitions in some developing countries, such as Ethiopia,
there may be a temporary exception to symmetry, in that the transitional provisions
of the constitution can wait for the constituent units to develop the capacity to assume
powers before they are ocially transferred. However, this normally represents a
of timing, rather than dierences in the units’ constitutional capacity to receive
such powers. Some federations also consider some very thinly populated regions—or
regions with tribal populations or limited capacity—to be districts’ or ‘territories
without the full status and autonomy of constituent units.
Asymmetrical models
Asymmetrical models arise most notably where one or a few regions have a much
stronger desire for local autonomy than elsewhere in the country. ere may be one
or more regionally concentrated minorities whose identities are distinct from that of
the majority population. Such minorities usually seek more devolved autonomy than
the majority wants in its regions, so a symmetrical approach to devolution could result
in too little devolution for one or more territorial minorities, and too much for the
majority. is can arise in both federal and unitary regimes.
Even so, federations tend to be symmetrical; relatively few have provisions that give
greater powers to certain constituent units. For historical reasons, Jammu and Kashmir
in India, Sarawak and Sabah in Malaysia, the Basque Country in Spain, and the Tirol
and Aosta in Italy all have greater powers than other constituent units in their regimes.
For the most part, this has not proved problematic, partly because the populations of
these units are small relative to the national population (e.g., 1 per cent for Jammu and
Kashmir, 5 per cent for the Basque Country, 20 per cent for Sarawak and Sabah), but
also due to a recognition of the ‘specialness’ of these units. However, the special fiscal
arrangements enjoyed by the Basque Country permit this relatively rich region to keep
more of its own revenues than other autonomous communities, which has become a
source of tension in Spanish politics. Kurdistan in Iraq has a very large measure of
autonomy in a supposedly federal regime, and in principle other parts of the country
were to be eligible for similar autonomy; yet extending so much autonomy to all the
regions would be unsustainable.
Special autonomy arrangements can be a feature in unitary or ‘union’ regimes as well—
for Scotland, Wales and Northern Ireland in the United Kingdom; for Åland in Finland;
and for Zanzibar in Tanzania. Recently, special autonomy arrangements have been
agreed for Aceh in Indonesia, Bougainville in Papua New Guinea and Bangsamoro on
the island of Mindanao in the Philippines.
Special autonomy arrangements are often decided through limited negotiations or
processes, rather than as part of a general constitutional transition. ey can also be the
product of international agreements (such as between Finland and Sweden, and Italy
and Austria), reflect historical rights (e.g., the Basque Country in Spain), or follow an
insurgency (e.g., Aceh, Bangsamoro). In Malaysia, the special arrangement for Sarawak
and Sabah was negotiated as terms of their late entry into the federation.
Asymmetrical arrangements, whether in unitary or federal regimes, are most appropriate3
when the autonomous unit is not too populous relative to the rest of the country.
us Scotland, with 8 per cent of the United Kingdom’s population, is rather large
to have such extensive devolution. Most special autonomy areas, whether contiguous
or overseas, are less than 2 per cent of the national population. A large region with
extensive autonomy poses problems regarding the number and powers of its elected
representatives in the national parliament, because they might determine the outcome
of votes on matters that do not aect their region. Such representatives could be denied
the right to vote on such matters, but since that would create procedural complications
regarding the functioning of the legislature and the constitution of the government,
this measure has not been adopted in most cases. is issue is actively debated in the
United Kingdom, where the Celtic regions could determine which party formed the
government, even when many of the government’s responsibilities would not apply to
their regions.
Autonomous units are frequently heavily subsidized or favoured fiscally, which can
discourage secession. Citizens of the autonomous territory are citizens of the host
country. A right of secession does not usually extend to contiguous autonomous
territories (Scotland is an exception), but it often does to overseas territories that were
In Sri Lanka, a secessionist movement failed to win a special autonomy arrangement for
its territory. e Indo-Lanka Accord of 1987 provided for a weak form of symmetrical
devolution to all the country’s provinces (the temporary merger of the Northern and
Eastern provinces was the only special concession to the Northern Tamils), but the
accord soon failed, in part because the liberation movement known as the Tamil Tigers
never supported it. Attempts at negotiations between the Tigers and the government
obtained little traction and, when they did, the possible compromise option was limited
symmetrical devolution, not a Tamil area with significant autonomy. It remains to be
seen how the very devolved special autonomy arrangements in Indonesia, the Philippines
and Papua New Guinea develop over time. However, it appears that they were made
possible by the central governments’ fatigue with the insurrections and the relatively
small size of the regions in question.
National institutions and decision making
In federations and other constitutionalized forms of devolution, the central government
institutions are often designed to reflect the country’s territorial character to some extent.
is often provides for the representation of regions or minorities in certain central
institutions, which may enhance their decision-making power. Yet for most territorial
minorities, such arrangements at the centre are a lower priority than devolution, which
would give them clear control of their powers. Enhanced representation at the centre
will always fall short of giving the minority the final say—the most it will get is a role in
the decision. Of course, there are powers that cannot (and should not) be devolved, so
the minority may have a real interest in maintaining its role in those decisions. Regions
or regional governments may also be given a formal role in the procedure for amending
the constitution, which can provide a measure of protection for acquired rights.
3 France, Denmark and the Netherlands all have special autonomy arrangements for former overseas colonies,
which have been integrated into the metropolitan governments as overseas territories. is paper focuses on special
autonomy arrangements for contiguous territories.
A few countries have gone even further and developed ‘consociational’ arrangements for
formal power sharing between territorially or culturally defined communities.
Arrangements for a regional role in national decision making
Upper houses. While the legal powers of all constituent units are normally the same,
their political weight in a federal regime will vary according to their population size,
wealth and other factors. is can be an issue for representative arrangements in the
central government, notably in upper houses. Almost all federations have a bicameral
legislature in which representation in the lower house is based primarily on population,
while in the upper house it is organized by reference to the constituent units in some way.
e roles (and methods of selecting members) of upper houses also vary considerably.
e number of seats or votes assigned to each constituent unit. Less populous
constituent units tend to be quite heavily over-represented in federal upper
houses, because representation is either equal for all units or weighted to favour
the less populous ones. is can give extra weight to territorially-based minorities
in national law making.
e method of selecting members of the upper house. Members can be elected
directly by the population, or indirectly by constituent unit legislatures (in which
case, upper house seats usually correspond to party shares in the legislature).
Germany is unusual in that the members of the upper house represent the
provincial governments (and so usually vote as a bloc). South Africa uses the
German system for some seats and indirect election by provincial legislatures for
other seats. When members of the upper house are directly or indirectly elected,
they normally vote by party, which means that members from the same region
often vote dierently, thus attenuating the ‘regional’ dimension of representation.
Even in Germany, where the upper house is composed of provincial government
delegations, the party dimension is very powerful. While German delegations
normally vote along party lines, there is considerable bargaining within the
party groups because of dierent provincial views, and on occasion provincial
delegations break party ranks to vote according to their provinces’ interests.
e role of the upper house. Upper houses in presidential regimes tend to have
more power than those in parliamentary regimes, because in the latter the
government is based on the confidence of the popularly elected lower house. In
some federations, such as Belgium and Canada, the upper house is no longer a
significant political chamber. In a few federations (e.g., Germany, South Africa)
the upper house is designed as a forum for intergovernmental relations, with
all or some members named by the constituent unit executives, and the house’s
role relates primarily to laws aecting the units—and on these matters it can
be very important. e Ethiopian upper house is indirectly elected by the state
legislatures, and it focuses on resolving interstate conflicts, interpreting the
constitution and overseeing how the national budget allocates funds to states; it
has no role in legislation. While the representation and powers of an upper house
may provide some extra protections for a territorially-based minority, this tends
to be limited, because they rarely get an eective veto.
In some federations, constituent units with small populations are also heavily over-
represented in the lower house—Brazil is the most extreme example.
Electoral laws. Many factors shape the choice of electoral laws, including designs that
may influence the representation, and weight, of territorial minorities in both houses of
the national legislature. While proportional representation with large constituencies and
a low threshold for representation in the legislature can be important for geographically
diused minorities, geographically concentrated minorities may benefit most from a
first-past-the-post electoral system (in which a territorially-based party may sweep all
or most of the seats in minority areas simply by having a plurality in each electoral
district). For example, Indian politics has changed dramatically over time with the
decline of the Congress Party and the emergence of regional parties, which have been
in strong positions to bargain over the formation of coalitions and various government
measures. Nigeria and some other African countries have designed their electoral laws
to forbid narrowly-based regional parties and require all parties to have cross-regional
support, but regional interests still play out within the broadly-based parties in ways
that may compare with countries that permit regional parties. Constitutions can be
silent on electoral laws or merely indicate the very general type of law that is to apply.
Constitutional amendment procedures. Constitutional amending formulae always
involve special procedures and usually stipulate special majorities. ese usually give
less populous units extra weight in such decisions that is greater than they have for
normal laws through upper houses. is can be because of a requirement for a special
majority in the upper house or among the units voting by referendum or through their
legislatures. Such rules normally fall short of giving any particular territorial minority
a veto over constitutional change, with the exception of changes to the boundaries of
sub-units, for which many federal constitutions require the consent of the sub-unit(s)
involved. e constitution of Malaysia is unique in providing that other provisions,
which governed the entry of Sabah and Sarawak into Malaysia, may only be changed
with their consent.
Representation in central state bodies. ere can also be arrangements to promote the
representation of minorities or particular regions in the executive, judiciary, civil
service and military. e Swiss constitution requires that at least two of seven federal
councillors who collectively form the executive are from the minority francophone
population. e Nigerian constitution requires that the cabinet has a representative
from each state, and that all federal institutions reflect the federal character’ of the
country in terms of linguistic, ethnic, religious and geographic diversity. e Federal
Character Commission charged with implementing this principle remains controversial
because of the diculty of balancing these requirements with the merit principle. Many
countries have less rigid, and often informal, arrangements to try to ensure that their
institutions are reasonably representative of dierent groups in the population.
Consociational arrangements
While minorities may obtain some extra protection from arrangements that give
constituent units an enhanced role or weight in national institutions or decision
making, sometimes this is not enough for a minority, and it seeks formal power sharing
with the majority, at least on certain items. Such ‘consociational’ arrangements may be
chosen where there are deep communitarian cleavages, notably as part of a negotiated
settlement of a conflict, which may have been violent (e.g., Bosnia and Herzegovina,
Northern Ireland) or not (as in Belgium). Consociational arrangements have been
adopted between populations that are intermingled on the same territory (as in
Northern Ireland), but when the cleavage is also territorial, a consociational structure
at the national level is usually associated with substantial devolution to territorial units
as well. e consociational model is based on the notion that key governance decisions
should be made by agreement among representatives of two or more communities, thus
limiting the actions of the majority group.
Recourse to consociationalism is relatively rare, both because it breaks so substantially
from majoritarian democracy and because it can be dicult to make it function
satisfactorily over time. It is typically an arrangement between two (or sometimes three)
communities, each of which is reasonably large relative to the others. Accordingly, this
approach is not adopted where a territorial community is very small relative to the
national population: the communities of Aceh, the Bangsamoro and the Bougainvillians
are too small to consider sharing power at the national level; special autonomy is more
likely to be relevant.
Consociationalism is usually thought of as an element of constitutional design, but there
can also be consociational elements in the processes of constitutional transition. For
example, in South Africa, the initial stages of the process were centred on negotiations
between the National Party government and the ANC, each of which had to agree
on issues of procedure and substance. But the ANC always insisted that the ultimate
model of government must be majoritarian. e transitional solution was found in
the ANC and National Party negotiating 34 basic principles that had to be respected
when the draft constitution was sent to the popularly elected Constitutional Assembly
for final revision and ratification. ese principles protected the vital interests of the
minority while giving a 60 per cent majority of the assembly, largely made up of the
black population, the final authority to approve the constitution.
Consociational arrangements typically emerge from negotiations rather than from
popularly elected constitutional assemblies. Negotiations are about finding a mutual
agreement, and if parties must agree, they are eectively in a consociational relationship.
However, while bi- or trilateral negotiations can give some constitutional processes a
consociational character, it is relatively rare for constitutions to adopt a consociational
structure. Bosnia and Herzegovina, with its Bosniac, Serb and Croat communities,
illustrates this point, since its constitutional settlement was imposed by the United States
and the European Union as part of the Dayton Accords. e resulting constitutional
structure is built around the ethnically homogeneous territories that were the product
of the civil war and population transfers, and a form of consociational federalism, with
a maximum devolution of powers to the governments of the entities (which even keep
their own armies for a considerable period) and a consociational arrangement for the
‘central authority’ (which was not even deemed to be a government), in which decisions
require the consent of all three communities. It may be that no other arrangement
could have yielded peace, but Bosnia’s central institutions have been dysfunctional
and often incapable of taking a decision. Moreover, the arrangement has reified the
distinctions between communities and left no real space for developing any kind of
common citizenship.
It is sometimes argued that there are ‘liberal’ models of consociationalism that limit the
strictly communitarian dynamic and open a space for dierent political groupings—
even potentially across communities—to play a role in government. e Northern
Ireland model, which is unitary rather than federal in design because the Roman
Catholic and Protestant populations are so intermingled, has an arrangement whereby
cabinet positions are allocated on the basis of how many votes a party received, which
could include secular or bi-communal groupings. us the representation of the
two communities is not locked into a rigid bi-communal model. Variations on this
approach have also been considered in Cyprus. In Belgium, a form of liberal, federal
consociationalism has emerged peacefully through normal electoral politics. e
system was substantially devolved through several stages, but important responsibilities
remain with the federal government. e federal cabinet must be composed equally of
Dutch-and French-speakers (the prime minister is not included and could be either),
and because both linguistic communities have several parties, the partisan character
of governments can change over time. Parliament normally deals with issues through
majority votes, but a proposed measure deemed to be of vital interest to one of the
cultural communities will require a double majority of deputies from both communities,
with each deputy voting as an individual. e Belgian system has proved dicult to
manage—as exemplified in the record amounts of time taken to form new federal
governments after elections. When consociational models seem inescapable, there are
advantages to trying to design such liberal models in order to create some positive cross-
community dynamics. It would also be desirable to build in arrangements for their
review and revision over time, which has proved dicult.
The extent of devolution
Because of the diculty of decision making by joint agreement, consociational regimes
that are structured around territorially defined communities tend to have a very high
degree of devolution, creating a hybrid model of federalism and consociationalism, which
minimizes the need for joint decisions. is is clear in Bosnia and Herzegovina, but it
has also been a strong factor in the drive for devolution in Belgium (where the counter-
force has been the desire of the poorer francophone minority to keep some major social
programmes at the national level because this benefits it fiscally). Attempts to negotiate
a consociational federalism in Cyprus have also assumed a very devolutionary regime.
Similarly, special autonomy arrangements, especially for very small minorities, can
facilitate very extensive devolution, as in the cases of Aceh and the recent accord with
the Bangsamoro of the Philippines, because the central government appears able to
tolerate having very limited power over such small populations. When the population
of the special autonomy unit is larger, as Scotland is within the United Kingdom, there
are more constraints on how much can be devolved (or on what terms). e British
government is committed to substantial further devolution to Scotland following
the referendum of 2014, but this has drawn further attention to the role of Scottish
members of parliament voting on laws in that do not apply to Scotland.
Devolution in more symmetrical arrangements, federal or otherwise, ranges from
modest to quite extensive. But even the weakest federal governments have significantly
more powers over their devolved units than do national governments in very
consociational regimes such as Bosnia, or with special autonomy arrangements for very
small territories such as Aceh. e extent of devolution can be a major issue during a
constitutional transition, with regions populated by minorities often pushing for much
more devolution than other regions: the end result will reflect a compromise based on
the balance of forces. us in South Africa, the white and black communities, and some
black tribes, were able to win the concession of a quasi-federal structure, but it is quite
centralized. Ethiopia’s federalism appears radical in recognizing a right to secession
for the country’s nations and nationalities, but in practice the extent of devolution is
quite limited, especially with one-party dominance. By contrast, the political weight of
Spain’s minority nationalities proved sucient to bring about a substantial devolution
of powers (even if the term federal was not used). And the peace deal concluded
between the Sudanese government and South Sudan in 2005 provided for radical
decentralization (with the South becoming a federation within a federation), which
eventually led to the break-up of the country. In general, multi-ethnic federations seem
more inclined toward greater devolution than more homogeneous federations.
Symbolic, linguistic and religious issues
While territorial minorities may often seek devolution or a share of national power during
a constitutional transition, some of their demands are often not about powers as such,
but about symbolic issues or community rights. Symbols are important, because they
can either be inclusive of minorities or marginalize them: flags and anthems sometimes
reflect the symbols of the dominant population, preamble clauses in constitutions
characterize the nature of the country (which may, for example, refer to the ‘nation’ in
the singular or to the ‘peoples’ of the country), and the designation of only an ‘ocial’
language or religion privileges that identity over others. ese symbolic issues can cause
very emotional reactions within both majority and minority communities, and can be
important in constitutional transitions. For example, the constitution of the Former
Yugoslav Republic of Macedonia refers to the ‘Macedonian people’ in its preamble,
even though over 30 per cent of the population is of other ethnicities. Minority group
demands for increased autonomy and recognition eventually led to conflict between
ethnic Albanians and the majority government, which forced the introduction of some
power-sharing measures and increased decentralization.
Minorities, depending on their size, often seek to have their language recognized as
‘ocial’ or given some other formal recognition. ey may also seek to guarantee
its status in the educational system, as a language of service to the public, and as a
language of work within the national or regional administrations. Of course, these
objectives may coincide with a demand by a linguistic minority for its own unit of
government (a federal constituent unit if the minority is large enough, or even a local
or district government), but if a linguistic population is a minority in a region, it may
simply be seeking to have its rights constitutionalized so that the local majority must
respect them.
e priority of religious minorities is usually to be able to practise their religion without
persecution or discrimination; the classic rights of freedom of religion, conscience and
assembly normally protect such practice. However, some religious groups also seek to
have their own schools or other social institutions (perhaps funded by the state), or to
be able to be governed by certain religious laws (notably in the area of family law) or to
proselytize. It may be easier to accommodate some of these demands when a religious
minority constitutes the majority in one or more territorial units.
is working paper has provided a high-level sketch of elements that shape constitutional
transitions in which territorial cleavages are salient. e possible configurations of
political groups within countries are almost limitless. Territorial cleavages are only
one of many potential political cleavages, and they can overlap and blur with others.
at said, many constitutional transitions must address significant territorially-based
demands. is paper is intended to provide a useful analytical backdrop or conceptual
map to help those engaged in constitutional transitions to consider relevant factors and
ere is no doubt that territorial cleavages present special challenges for constitutional
processes and design. Territorial populations that are majorities in one region but a
minority nationally may fear majoritarian government at the national level and seek
devolution, in addition to enhanced representation in central institutions and processes
as well as special provisions relating to symbols and their communities’ linguistic or
religious priorities. Democratic transitions involve both promise and risk. ose that
achieve compromise in certain areas can mark historic turning points in finding
a framework for governance that is acceptable to significant groups. us a critical
question in any constitutional transition will be the standing that other actors give to
those who seek territorial autonomy or other special governance arrangements: are they
open to some form of accommodation, or do they reject the demands? If they are open
to accommodation, a first issue will be the process that is to be followed in constitution
making. Will it abide by the amending rules of the existing constitution, or will new
rules—perhaps representing a break in the legal order—be developed? ere are many
ways in which minorities can be accommodated in constitution-making processes, but
a key decision will involve defining the ultimate decision-making rules, and the leverage
they give to minorities. Of course, minorities can be accommodated even when they
have limited formal leverage if other actors see their proposals as being in their interest.
‘Self-rule’, at least in a limited form, is a normal demand from territorial groups with a
strong sense of distinctiveness. is can take the form of special autonomy arrangements
if the minority is relatively small and there is little interest in devolution within the rest
of the population. Or it can be part of a general devolution, which may be federal in
form, perhaps with enhanced powers for certain regions. However, it may be impossible
to define regions that are ethnically, linguistically or religiously homogeneous, which
poses the question of the place and rights of minorities within the devolved units.
An excessive focus on the rights of local majorities can create its own problems. On
occasion, there can be consensus among the key political actors that devolution in some
form is in their mutual interest, but majorities sometimes resist devolution—or at least
devolution of the type demanded by certain minority groups. e outcome will depend
on the strength and views of key actors, the urgency of an agreement (and, clearly,
negotiations to end a conflict or reach a post-conflict entente play a distinct role in this
regard), and on the decision rules and procedures adopted.
Even if a political regime is substantially devolved, important powers will normally
remain with central political, judicial, military and administrative institutions.
Territorial groups may accept that these institutions are largely structured around
majoritarian principles, but if the level of trust is low—or if there has been a history
of severe discrimination and exclusion—such groups may seek special arrangements to
represent their interests in central institutions. ese may be principles related to fair
representation in major institutions, or the use of their language in national institutions
and national symbols, but they can also include arrangements that provide for general
joint decision making (consociationalism) or on a limited number of issues. Such
arrangements may be the only way to resolve a conflict, but they are typically very
challenging to manage.
ose engaged in constitutional transitions in which the territorial dimension is salient
might work their way through the issues discussed above to assist in their analysis of
the forces and possibilities that may be relevant in their cases. Every case is unique, and
most are also dynamic. us as the process progresses the politics shift, and alternative
forums or methods may be tested, and new or revised options may be more applicable.
Anderson, George, Federalism: An Introduction (Toronto: Oxford University Press,
Arato, Andrew, ‘Conventions, Constituent Assemblies and Round Tables: Models,
Principles and Elements of Democratic Constitution-making’, Global
Constitutionalism, 1/1 (2012), pp. 173–200
Bermeo, Nancy, ‘Conclusion: e Merits of Federalism’, in Ugo M. Amoretti and
Nancy Bermeo (eds), Federalism and Territorial Cleavages (Baltimore, Md: Johns
Hopkins University Press, 2004)
Bertrand, Jacques and Haklai, Oded (eds), Democratization and Ethnic Minorities:
Conflict or Compromise (London: Routledge, 2013)
Choudhry, Sujit and Hume, Nathan, ‘Federalism, Devolution and Secession: From
Classical to Post-conflict Federalism’, in Tom Ginsburg and Rosalind Dixon (eds),
Comparative Constitutional Law (Cheltenham: Edward Elgar, 2011)
Horowitz, Donald, ‘Conciliatory Institutions and Constitutional Processes in Post-
Conflict Societies’, William and Mary Law Review, 49 (2008), pp. 1213–48
Zahar, Marie-Joelle, ‘A Problem of Trust: Can Federalism Silence the Guns?, in Grace
Skogstad, David Cameron, Martin Papillon and Keith Banting (eds), e Global
Promise of Federalism (Toronto: University of Toronto Press, 2013)
Constitutional politics in Bosnia and Herzegovina are dominated by ethno-politics and the results of the 1992–1995 war. The constitution contained in the Dayton peace agreement of 1995 established a stable but inefficient consociational arrangement based on an ethno-territorial division of the country with particular rights for the three constituent peoples: Bosniaks, Croats and Serbs. In 2009, the European Court of Human Rights found that the constitution discriminates citizens who do not claim to belong to any of these constituent peoples. Furthermore, the European Union established constitutional reform as a precondition for Bosnia and Herzegovina’s further EU integration. However, the political representatives of the constituent peoples have resisted any calls for change so far.
Full-text available
Federalism has long been a topic of study for comparative constitutional law. However, the scholarly literature on federalism is in a process of transition. For most of the twentieth century, the study of federalism was oriented around a standard set of cases in the developed world: Australia, Canada, Switzerland and the United States of America. These cases provided the raw material for certain fundamental questions: What is federalism? Why should federations be adopted? What role is there for courts? For the most part, these questions appear to have been answered, often with the aid of comparative analysis. To be sure, important debates persist. For example, scholars disagree over the relative priority to be given to the different goals served by federalism and how those goals should shape the allocation of jurisdiction. In the area of environmental policy, for example, new opportunities for democratic self-government and policy experimentation argue for greater regional authority but also generate inter-jurisdictional externalities, which argue against it. This debate relies on an implicit understanding of its terms and range, and participants in such discussions of federalism often draw on the same standard set of jurisdictions as illustrations of models to be followed and dangers to be avoided. Recent developments in the practice of constitutional design have challenged this consensus. Many states in the developing world, such as Ethiopia, Iraq, Nigeria and Sudan, have adopted federal solutions to manage ethnic conflict, often as part of a broader package of post-conflict constitutional reforms. In these federations, internal boundaries are drawn to ensure that territorially concentrated national minorities constitute regional majorities. The difference between the standard and emerging cases is not just geographic. Rather, the very mission of federalism is different. Its principal goals are not to combat majority tyranny or to provide incentives to states to adopt policies that match their citizens' preferences, but rather to avoid civil war or secession. Federalism promotes not public accountability or state efficiency but rather peace and territorial integrity. It is this concern for violence and territory, inspired by contemporary problems, that sets post-conflict federalism apart from consociationalism, a canonical approach to ethnic divisions and democracy. Post-conflict federalism also pursues different goals than classical federalism and thus provides an opportunity to revisit the basic assumptions underlying the field. Advocacy of federalism as a tool for managing ethnic conflict continues to grow, with respect to a diverse set of cases that spans the globe from South and East Asia to Eastern Europe. However, its purported benefits have been challenged by those who argue that federalism exacerbates, instead of mitigates, ethnic conflict. This academic debate about the merits of post-conflict federalism has reached an impasse, largely as a consequence of methodology. Proponents and opponents of drawing boundaries to empower national minorities point to different cases of federal success and failure. But recent scholarship in comparative politics that combines large-n quantitative analysis with small-n qualitative case studies promises a way forward. It shows how we might test these competing claims about the ability of federalism to control ethnic conflict across a variety of cases and begin to identify the factors that explain when post-conflict federalism succeeds and when it does not.
Full-text available
There are two important questions in post-conflict constitution making, and at present neither of them has a definitive or uniformly accepted answer. The first relates to the best configuration of institutions to adopt in order to ameliorate the problem of the intergroup conflict. The second concerns the process most apt to produce the best configuration of institutions, whatever it might be. The first question is unanswered because there is a dispute among scholars and practitioners between two opposing views of appropriate institutions to mitigate conflict. Constitutional processes have not generally been geared to yield coherent exemplars of either configuration in a sufficient number of conflict-prone countries to provide a convincing demonstration of the superiority of one approach or the other. The second question is unanswered because in many cases constitutional processes are chosen in a haphazard fashion, without regard to the aptness of the process for the problems to be addressed. Meanwhile, advocates have been arguing for a single, highly structured, uniform process that may be apt for some classes of problems but is not necessarily appropriate for the full range of problems constitution makers confront in coping with divided societies. Hence the questions of what and how are both subject to debate. This Article takes up both questions. It surveys the main contending prescriptions for constitutional designs to cope with serious ethnic conflict, and it enumerates some of the main objections to each. It then reviews some of the available evidence on the efficacy of the contending prescriptions before turning to the question of adoptability. The Article notes that there are many obstacles to the adoption of a coherent set of political institutions to mitigate conflict, which derive mainly from processes of constitution making. For this reason, the Article evaluates some of the main suggestions in the recent literature on constitutional process and thereafter devotes considerable attention to the difficult question of designing a process for constitution making that is geared to the specific problems faced by constitution designers.
The article presents the Round Table form, elsewhere post-sovereign multi-stage constitution making as an independent democratic type superior to the alternatives. It locates the form along with Convention and Constituent Assembly both in a comprehensive typology based on models of regime transformation, as well as historically. After making a set of normative arguments comparing the three forms, focusing on the issue legitimation, I make a case for the synthetic nature of the Round Table in relation to the two important democratic predecessors. Finally, I reluctantly admit the path-determined nature of the Round Table that strictly speaking seems relevant only 1) in the transitions from dictatorships, if 2) new forces do not have the power to accomplish revolutionary change. Nevertheless, I argue that the principles of the Round Table (inclusion, consensus, publicity, legality and veil of ignorance) are relevant to other paths, from the point of view of their legitimation. I further claim with reference to Iraq, Turkey and the European Union that elements of the Round Table can be adopted even under conditions of revolutionary change, as well as constitutional reform.
Conclusion: The Merits of Federalism
  • Nancy Bermeo
Bermeo, Nancy, 'Conclusion: The Merits of Federalism', in Ugo M. Amoretti and Nancy Bermeo (eds), Federalism and Territorial Cleavages (Baltimore, Md: Johns Hopkins University Press, 2004)