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2006]
G. Alan Tarr, Robert F. Williams, and Josef Marko, eds., Federalism, Subnational
Constitutions, and Minority Rights (Westport, Conn.: Praeger, 2004). Pp. viii, 247.
A book devoted to an analysis of how federalism and subnational constitutions
have served to safeguard the rights of minorities … [and] of the conditions under
which they are likely to do so (vii-viii) is a rarity deserving of attention. Professor
Tarr and his collaborators have produced a book well worth reading.
Part I provides an overview of some horizontal issues involved in subnational
constitutionalism in federal states. The next three parts are devoted to case studies of
countries, divided between mature federal systems: Austria, Germany, and the
United States of America (Part II); regional systems in transformation: Italy and
Spain (Part III); and multinational federations: Belgium, Bosnia and Herzegovina,
India, and Switzerland (Part IV).
To examine all twelve essays in detail is not possible here. And so, after pointing
to some of the deficiencies of this work, my aim will be to emphasize some of the
ideas it contains that are particularly worthy of attention for a Canadian audience,
especially for those scholars interested in Aboriginal legal issues.
Professors Williams and Tarrs introductory essay (Robert F. Williams & G. Alan
Tarr, Subnational Constitutional Space: A View from the States, Provinces, Regions,
Lnder, and Cantons 3) examines, from a comparative law perspective, the question
of how subnational entities are recognized (or tolerated) in national constitutions or
constitutional space. They first rightfully underline that a subnational perspective
allows for a study of constitutional federalism that is not obsessed by the sole
examination of the national constitutions provisions nor by the univocal perspective
of the national government. It also enables one to envisage the relationship of
national and subnational constitutions in federal systems as interdependent [rather
than hierarchical] (4). With that in mind, the authors then analyze issues such as:
the amount of subnational constitutional space, competency, or autonomy that the
component units are allotted within the federal system (6); the policing of the outer
limits of subnational constitution making (whether the federal constitution invests the
central government with some control over the content of subnational constitutions,
whether such control should be exercised by a constitutional court, or whether the
national constitution should prescribe the contents of subnational constitutions); the
manner in which different subnational entities have exercised their constitutional
powers and the reasons for the differences among subnational constitutions. The
authors then enumerate a number of questions that could be pursued usefully in
studying subnational constitutions. In their conclusion, Williams and Tarr note that
subnational units in federal systems more often underutilize their constitution-
making competency than they overutilize it (15). They lament this underutilization
because in an era of reawakening of political awareness and regional identity … the
allocation of power to subnational units, including the power to determine their own
constitutional arrangements, might provide a form of self-determination that can
serve as an alternative to illegal movements for secession (ibid.) and may also be
crucial for minorities, who might find it easier to gain recognition of their rights at the
subnational constitutional level (15-16).
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One problem with the authors approach has to do with their definition of
constitution, one that seems confined to a formal rather than a material
understanding of the concept of constitution. The reader is left with the impression
that the case studies that follow only provide an in-depth examination of subnational
formal constitutional provisions as opposed to subnational material constitutional
provisions.5 This is definitely not the case since most of the contributors insist on the
protection provided by both formal and informal subnational constitutions.
Two essays also seem to fit awkwardly within the general theme. The Spanish
contribution (Eduardo J. Ruiz Vieytez, Federalism, Subnational Constitutional
Arrangements, and the Protection of Minorities in Spain 133) has next to nothing to
say about the protection afforded by this countrys subnational constitutions,6 as it
only deals with those provided by the national constitution. Furthermore, Kristin
Henrards essay dealing with the equality principle (Equality Considerations and
Their Relation to Minority Protections, State Constitutional Law, and Federalism
25)although interestingis mostly concerned with a general discussion of the
concept, leaving aside its particular application in the context of subnational
constitutions.7
Although all of the essays are worth reading, some do stand out, especially those
that tackle the definition of the word minority. For instance, Francesco Palermos
essay Asymmetric, Quasi-Federal Regionalism and the Protection of Minorities:
The Case of Italy (107) underlines that, in a federation, the notion of minority is a
variable one. He accurately insists on the fact that [m]inorities, as such, do not exist
(122 [footnotes omitted]).8 Rather, [t]hey only become relevant in relationship to
other groups having a dominant position … (ibid.). As he underlines, [o]ne could …
argue that groups of people become minorities inasmuch as they are disadvantaged in
the decision-making process at a certain level of governance. Thus, the concept of
minority will probably become a variable one, depending on the level of government
involved (ibid. [footnotes omitted]).
Jens Woelks essay entitled Federalism and Consociationalism as Tools for State
Reconstruction? The Case of Bosnia and Herzegovina (177) underlines the need, in
certain circumstances, to differentiate the notion of minority with that of constituent
5 For instance, they insist on the fact that, in Canada, there are no subnational constitutions
independent of the federal constitution (5) and that this country has shown that federal systems can
get along quite well without subnational constitutions (10). There might not be any provincial
constitutions in the formal sense, but many legal rules (common law, constitutional conventions, and
statute law) would qualify as constitutional in a material sense. For example, provincial human rights
codes, defined as quasi-constitutional documents, certainly play an important role in the protection of
human rights in Canada.
6 With the exception of the second to last paragraph of the essay (150).
7 With the exception of the following conclusion: [T]he prohibition of discrimination does not
stand in the way of subnational units adopting constitutions that have their own additional measures
pertaining to human rights and minority protection … (35). See also 30.
8 See also 130, n. 68.
BOOK NOTES / RECENSIONS SIMPLES
2006]
peoples. It deals with situations where the term minorities cannot be applied, in a
technical sense, to the main constituent groups [of a country] (179 [footnotes
omitted]). For example, in recognition of the fact that Bosniaks, Serbs, and Croats are
not simply minorities in the Republic of Bosnia and Herzegovina, that states
constitution recognizes their status as Constituent Peoples. Such distinction has
lead the Supreme Court of that country to conclude, in the words of Woelk, that:
215
[t]he Entities thus have a constitutional obligation not to discriminate against
those constituent peoples of the state who are as a matter of fact a numerical
minority within their territory (i.e., Serbs in the Federation, Bosniaks and
Croats in the Republika Srpska). The principle of nondiscrimination thus
applies not only to individuals, but also to groups as such, prohibiting special
adverse treatment. For the Court, a principle of collective equality of the
constituent peoples exists that prohibits any special privilege for one or two of
these peoples, any domination in governmental structures or any ethnic
homogenization through segregation based on territorial separation (188-189
[references omitted]).
In A Dynamic Federalism Built on Static Principles: The Case of Belgium
(157), Wouter Pas addresses the same distinction, although he does not speak
specifically of constituent peoples. This interesting distinction between minorities and
constituent peoples bears a lot of similarities to Will Kymlickas distinction between
ethnic groups and national minorities.9 For Canadian scholars interested in
accommodating Qubcois and Aboriginal nationalisms, such distinction merits
closer examination.
Another series of essays, while emphasizing federalisms capacity to promote the
collective equality of groups, stress that federalism also aims at promoting the
democratic integration of these groups within the overall state. In addition, these
essays emphasize that federalism should be conceived of as a power-sharing exercise
and not just a mask for subnational majoritarian leadership. In what I believe to be the
most interesting of all the essays, Participation in the Decision-Making Process as a
Means of Group Accommodation (41), Nicole Tpperwien examines how local
minorities in culturally heterogeneous subnational states can be integrated politically
through participation rights. Such integration in the decision-making process, she
argues, might enhance the loyalty to and identification with the state and prevents
the alienation inherent in the feeling of being a perennial loser (42 [footnotes
omitted]). After an interesting discussion of who should be allowed to exercise
participatory rights, and an examination of the particular nature of these rights,
Tpperwien underlines the danger of putting too much emphasis on the rights of
groups:
When all institutions are constituted so as to represent the groups and there is
not a counterweighing representation of the citizenry as a whole, there can as
well only be direct legitimacy of decisions in respect to the groups. In such a
9 Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford
University Press, 1995).
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case, state legitimacy derives from and depends on group legitimacies. Disputes
between groups can put the state as such in question because the state does not
have legitimacy on its own to justify its existence and thus has no basis through
which it could counterweigh, bridge, or mediate conflicts. Though participation
rights aim at ameliorating legitimacy of groups, this must not be done in
detriment to an overall legitimacy (47 [footnotes omitted]).
The author then concludes that [i]n the end, only participation rights that find the
acceptance of all concerned groups and that are not in opposition to an overall or
overarching legitimacy will have chances of being effective (48). Readers familiar
with Alan C. Cairns thesis in Citizens Plus: Aboriginal Peoples and the Canadian
State10 will find Professor Tpperwiens essay particularly illuminating.
Finally, in an essay entitled Federalism and Nonterritorial Minorities in India
(199), Arshi Khan underlines the dangers inherent in the implementation of
federalism in a nonliberal community such as India, where religion has become the
fundamental basis of identification for the individual and group … (205). In such a
context, federalism must
not only [serve] to allocate power among governing institutions but also to
encourage a commitment to the interests and well-being of all segments of
society. On the one hand, federalism empowers subnational units within their
specified area of influence. On the other, it may be reasonable to limit the
powers and autonomy of these units in order to safeguard the well-being of all
the people … (208).
In other words, federalism should be concerned with the sharing of power and not
simply with the division of power:
rights,
they minority
[Federalism] can … serve as the impetus for considering all viable mechanisms,
be
regionalism, consociationalism, proportional
representation, or other steps, that can ensure power sharing. Without such a
concern, federalism would only serve the cosmetic purpose of division of
powers and not sharing of powers. In the case of India, a full commitment to
this understanding of federalism would mean that both the Union and state
governments would create mechanisms to protect minorities not only from
threats of violence but also from majoritarianism. Otherwise, the federal
arrangements would be merely a constitutional mask for the majoritarian
leadership in the Union and the states to violate the rights of minorities (209).
Again, this essay provides food for thought for those who examine the question of the
protection of individual rights within autonomous Aboriginal political entities.
Jean Leclair
10 (Vancouver: University of British Columbia Press, 2000).
