Devolution of some kind often is undertaken in the course of Constitution building. There are degrees of devolution, however, which can be ranged along a spectrum from forms of decentralisation at one end to arrangements that offer more substantial local autonomy at the other. The latter include federalism or provision for special autonomy for particular parts of the state.
Federalism affects the character of the state, in the sense that it is no longer unitary (if it was before). Special autonomy can be achieved within a framework that otherwise is unitary (although tensions may arise, between competing principles or competing practices). The two also may be combined, in a federation that is asymmetric, in the sense that some parts of the state enjoy deeper federal autonomy.
Movement from a unitary system to create either special autonomy or, more particularly, federalism, involves major, substantive constitutional change, although the extent of the change depends on the detail of the arrangements planned or adopted. These decisions may be influenced by a variety of considerations. Some form of devolution often is suggested by considerations of efficiency or the need for local responsiveness. Deeper forms of devolution may be pursued in response to regional inequality, to accommodate diversity, as a form of check and balance or as part of a package of measure to resolve conflict, or to provide a means for peaceful co-existence.
The purpose of this session was to examine why and how deeper forms of devolution are undertaken through constitution building and the challenges that result, both during the making of the Constitution and in its implementation.
The case studies explored issues relating to:
- The factors that prompted the decision to make significant changes to the form of the state through devolution or federalism;
- The approach taken by constitution makers to negotiating and designing a new federal or devolved system;
- The kinds of issues that arose negotiating and designing a new federal or devolved system and how they were resolved;
- Challenges for implementation;
- The sources of comparative models and other international influences brought to bear; and
- What might have been done differently in hindsight and insights for other countries dealing with similar issues.