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Constitutional Transitions and Territorial Cleavages

January 2015
IDEA

Authors:

WZB Berlin Social Science Center

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.

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Constitutional Transitions

and Territorial Cleavages

George Anderson and Sujit Choudhry

Edited by Sumit Bisarya,

International IDEA Constitution Building Programme

Constitution Building Processes

International IDEA

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ISBN: 978-91-7671-007-4

Contents

Introduction ............................................................................................................................................... 

Constitutions and constitutional transitions ........................................................................ 

Territorial cleavages and political mobilization .................................................................. 

THE HISTORY OF INTER-GROUP RELATIONS ........................................................................... 

THE NATURE OF DIFFERENT IDENTITY GROUPS ................................................................... 

ELITES’ AMBITIONS AND STRATEGIES ........................................................................................ 

ORGANIZATIONAL RESOURCES ..................................................................................................... 

INTERNATIONAL INFLUENCES AND FOREIGN ACTORS ........................................................ 

THE GEOGRAPHIC CONCENTRATION OR DISPERSION OF GROUPS ................................ 

INTERNAL GROUP DYNAMICS ......................................................................................................... 

Dealing with territorial cleavages in the constitution-making process ............... 

MINORITIES’ FEAR OF MAJORITARIANISM ............................................................................... 

LEGAL CONTINUITY OR REVOLUTIONARY BREAK IN CONSTITUTION MAKING ...... 

DURATION AND DIFFERING ELEMENTS OF CONSTITUTIONAL TRANSITIONS .......... 

NEGOTIATIONS ........................................................................................................................... 

NATIONAL DIALOGUES ............................................................................................................ 

ELECTIONS ..................................................................................................................................... 

DRAFTING .................................................................................................................................... 

RATIFICATION BY LEGISLATIVE BODIES OR REFERENDUMS .................................. 

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 ................................................ 

CONSTITUTIONAL PROVISIONS FOR CHANGING OR ADDING NEW UNITS ....... 

THE FORM OF DEVOLUTION ........................................................................................................... 

SYMMETRICAL MODELS .......................................................................................................... 

ASYMMETRICAL MODELS ....................................................................................................... 

NATIONAL INSTITUTIONS AND DECISION MAKING ............................................................. 

ARRANGEMENTS FOR A REGIONAL ROLE IN NATIONAL DECISION MAKING ... 

CONSOCIATIONAL ARRANGEMENTS ................................................................................. 

THE EXTENT OF DEVOLUTION ....................................................................................................... 

SYMBOLIC, LINGUISTIC AND RELIGIOUS ISSUES .................................................................... 

Conclusions ................................................................................................................................................ 

References ................................................................................................................................................ 

Introduction

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 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.

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

diﬀerent 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

transitions

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 diﬃcult 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 diﬀerent 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) diﬃcult

to manage?

2. Constitution-making processes: How do territorial cleavages aﬀect 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

diﬀerent 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 diﬃculties 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

mobilization

While some societies are relatively homogeneous across their territory, in other cases

regional diﬀerences 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 diﬀerent constitutional process and design options. e political mobilization of a

territorial population is aﬀected 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 diﬀerent 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.) card’ and 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 eﬀectively over

time. And a group’s leaders may have very diﬀerent 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 diﬀerent 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

prove

incapable of coming together and forming eﬀective organizations, while more

established

networks, such as the Muslim Brotherhood in Egypt, often become

electorally very eﬀective. 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 diﬀerences, 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 diﬀering

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

mechanisms.

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 diﬀerent 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 diﬃculty 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 diﬃcult 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 diﬀerent 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

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 diﬀerent in a plural,

political context than in a bilateral negotiation for a peace agreement or a post-conﬂict

settlement. And the dynamic is diﬀerent 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 diﬀerent regions express their diﬀerent 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).

Elections

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.

Drafting

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 eﬀectively 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 diﬀerent

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 suﬃcient 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 eﬀective 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 oﬀer 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 aﬀect 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

diﬀerent 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 diﬀerentiates 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

cleavages

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

diﬀerent 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 eﬃciency, eﬀectiveness and viability (an argument

for avoiding many small or economically poor units) and grouping economic

regions;

• socio-cultural factors such as nationality, ethnicity, language, religion, tribe and

clan;

• 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

instability);

• 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 diﬃcult 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 diﬃcult and contentious—and even impossible. It can also

lead to the demand for ever-smaller units, which would be expensive and ineﬀective.

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 diﬀer

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 oﬃcials 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 aﬀected 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 aﬀected 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 diﬃcult).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 diﬀer 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

the

powers before they are oﬃcially transferred. However, this normally represents a

question

of timing, rather than diﬀerences 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 aﬀect 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

colonies.

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 diﬀerently, 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 diﬀerent 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 aﬀecting 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 eﬀective 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

diﬀused 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 diﬃculty 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 diﬀerent 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 diﬃcult 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 eﬀectively 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 diﬀerent 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 diﬃcult 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 diﬃcult.

The extent of devolution

Because of the diﬃculty 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 suﬃcient 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 ‘oﬃcial’

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

‘oﬃcial’ 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.

Conclusions

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

options.

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.

References

Anderson, George, Federalism: An Introduction (Toronto: Oxford University Press,

2008)

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)

Bosnia and Herzegovina

Chapter

Oct 2016

Tobias Flessenkemper

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.

Federalism, Secession & Devolution: From Classical to Post-Conflict Federalism

Chapter

Full-text available

Jan 2011

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.

Conciliatory Institutions and Constitutional Process in Post-Conflict States

Article

Full-text available

Jan 2007
William Mary Law Rev

Donald Horowitz

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.

A Problem of Trust: Can Federalism Silence the Guns

Chapter

Jan 2013

Marie-Joelle Zahar

Conventions, Constituent Assemblies, and Round Tables: Models, principles and elements of democratic constitution-making

Article

Mar 2012

Andrew Arato

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

Jan 2004

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)

Constitutional Transitions and Territorial Cleavages

Abstract

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