The concept of autonomy1
It has been said that ââAutonomyâ is not a term of art in international or constitutional lawâ (Hannum, 1996: 4; Suksi, 2011: 101). The word âautonomyâ can be used in a broad sense, which includes (a) territorial autonomy, often on an asymmetrical basis (in the sense that not all territories or regions of the state enjoy the same degree of territorial autonomy), within a unitary state (Dinstein, 1981; Weller and Nobbs, 2010; Suksi, 2011; Ghai and Woodman, 2013), as well as (b) the autonomy enjoyed by constituent units of a federal state (Wheare, 1963). In the discussion below, the word âautonomyâ will be used in its broad sense, unless otherwise indicated expressly or by the context. âAutonomyâ in the narrow sense refers to territorial autonomy within a unitary state in situation (a) above.2
The concept of autonomy refers to a particular form of distribution of governmental power within a sovereign state. It may be explained as follows. Suppose there is a sovereign state X, and a part of the territory of X is Y. The people of Y can be said to exercise a power of autonomy within the state X if they â usually through their representatives â are empowered to govern themselves in respect of certain affairs. (Examples of âaffairsâ in this context are housing, education, transport, social welfare, environmental hygiene, medical services, taxation, etc.) The more extensive the kinds of affairs over which they are self-governing, the higher is the degree of autonomy. The idea of autonomy, however, presupposes that there are at least some governmental affairs over which the people of Y have no ultimate control. For if the people of Y, through their representatives, have complete control over every aspect of their existence and operation as a community, then they are not merely autonomous but constitute an independent sovereign state.
In the above example, there are at least two levels of government in state X. The first is the national or central government of state X, representing, exercising power on behalf of, and having authority over all the citizens of X. Second, there is a local government, or autonomous government, of area Y, representing, exercising power on behalf of, and having authority over the people of Y. Of course, insofar as the people of Y are also citizens of X, they can also participate in the formation and operation of the national government. But the fact would probably remain that the local government of Y will be able to represent their interests more directly and effectively than the national government, at least where the âautonomous affairsâ (i.e. affairs specified as the local autonomous governmentâs responsibilities) are involved. For otherwise, the people of Y will not derive any substantial benefit from the arrangement of autonomy.
The above analysis illustrates another possible way of defining the concept of autonomy: the people of Y are said to be exercising autonomy within state X (Y being part of X) if there exists a division of governmental powers between the local or regional government of Y and the central or national government of X. This division is based on classification of governmental affairs into different types and the allocation of power over certain types of affairs (e.g. housing, education, etc. as mentioned above) to one government and of power over other types of affairs to the other government. Under this arrangement, the local government will exercise various powers, such as policy-making powers, legislative powers, and judicial powers, over certain designated types of affairs, and the national government will exercise governmental powers over other affairs. The more extensive the powers of the local government, the higher is the degree of autonomy, and vice versa.
If the concept of autonomy is understood as explained above, then it follows that autonomy is in fact a fairly widespread phenomenon in the nations of the contemporary world. Every regional or provincial government, every city council or local authority, exercises some powers of autonomy. The difference among them lies mainly in the degree of autonomy. If a particular local authority has autonomous power only over relatively trivial affairs in a small area, then according to the ordinary usage of language, it can hardly deserve the title âautonomous governmentâ, although in theory the general concept of autonomy may still be applicable and relevant to it.
The scope of autonomy which is desirable or appropriate in any particular context usually depends on a complex of political, economic, social, cultural, and even racial, linguistic, and religious factors. Where the population in a particular area of a nation-state is sharply distinguishable from those in other areas by reason of some of these factors, they might demand a high degree of autonomy for the purpose of protecting certain basic interests or values against encroachment by the nation-state. Even where no such considerations are involved, some lower degrees of autonomy may be advantageous in the operation of certain levels of local government to stimulate local initiative, interest, and participation and thus to promote efficiency and democracy.
Although the policy to be adopted in any historical situation3 regarding whether and what degree of autonomy for an area within a state should exist is almost always determined by extra-legal considerations, technical constitutional devices do need to be examined in the process of the creative design of autonomous arrangements in any given set of circumstances. In particular, the following issues are likely to command the attention of constitutional and legal experts advising politicians on the construction of models of autonomy:
- (1) Method by which the local government is to be formed. Advocates of local autonomy would seek to ensure that the government of the autonomous region will truly represent and govern in the interests of the people of that region.
- (2) Division of powers in the legislative, executive, and judicial spheres between the central government and the local government. The challenge here is to draw a line between the domain of the local government and that of the central government, a line which is rational and reasonable in theory and practicable in reality.
- (3) Mechanisms for rectification of errors and resolution of disputes. What institutional devices are to be established to ensure, on the one hand, that the local government will not exceed the scope of its autonomy and, on the other hand, that the central government will not infringe upon the scope of such autonomy? Where such errors have indeed occurred, how are they to be rectified? Where conflicts of opinion regarding these matters arise between the two sides, how are they to be resolved?
We consider below the salient features of federal and non-federal models of autonomy respectively. A federal state (Wheare, 1963) is formed by the union of more than one member state or province, each of which usually enjoys the same degree of autonomy (in what can be called a âsymmetricalâ manner) vis-Ă -vis the federal state. There is a division of power between the federal government and the state (or provincial) governments. Thus the former will have exclusive jurisdiction over certain affairs; each of the state governments has exclusive jurisdiction over other affairs within its territory; and over some affairs, the federal and state governments have âconcurrent powersâ. Concurrent powers exist where, for example, both the federal legislature and a state legislature may be able to make law on a particular matter, but if there is a conflict between a relevant federal law and a state law, the former will prevail.
The division of power between the federal government and the state governments in a federal state is almost invariably set out in a written constitution which forms the constitutional and legal foundation of the federal state. In some federal states, the state governments possess âresiduary powersâ (or âresidual powersâ) (Suksi, 2011: 126â127, 131, 139), which means that any power which has not been expressly assigned to the federal government by the constitution remains vested in the state government. This principle may be regarded as a reflection of the fact that each member state of the federal state had originally been a full sovereign state, or at least a separately governed entity, before the federation was formed. However, the reservation of residuary powers by the states is by no means a necessary feature of a federal state. It is perfectly possible and proper for the federal constitution to allocate such residuary powers to the federal government.
A fundamental legal characteristic of the federal state is that the federal constitution, in which the division of powers is set out, is binding not only on the state governments but also on the federal government. The supremacy of this constitutional division of powers over the federal government means that the latter may not unilaterally upset the original division of powers by expanding its actions and activities beyond their constitutional limit, thus infringing the autonomy of the member states. This original division of powers may only be altered by amendment of the constitution, which usually requires the overwhelming support not only of the federal legislature but also of the legislatures of most of the states, or even of the people of the states themselves voting in a referendum.
Since the federal constitution limits the power of both the federal government and state governments, it is necessary to provide in its design a mechanism for interpreting and enforcing these constitutional limits on power and for imposing legal sanctions where such limits have been exceeded. In many federal states, this mechanism takes the form of either a constitutional court or a supreme court at the apex of a system of ordinary courts. The court may, for example, declare as invalid federal laws touching upon a matter within the exclusive jurisdiction of a state and thus trespassing upon the stateâs autonomy, or conversely, a state law which deals with a matter within the exclusive jurisdiction of the federal government. Thus conflicts or disputes between the federal and state governments arising from the constitutional division of power are resolved in this judicial forum.
The autonomy of a member state of a federal state is, however, not the sole model of autonomy. Even in a unitary state, it is possible to have within it one or more autonomous areas or regions each practising territorial autonomy (i.e. autonomy within the territory of the region). And it is possible for such an autonomous region to exercise a degree of autonomy higher than that of a member state of a federation. As explained above, the degree of autonomy depends primarily on the range of subject matters the governing power over which is assigned to the local autonomous government, and not on whether the arrangement is federal or not. What, then, are the differences between autonomy in a federation and that in a unitary state?
First, a federation usually consists of constituent units or member states that have equal status within the federal state and equal powers of autonomy distributed among them in a symmetrical manner. Furthermore, the member states are usually equally represented in the upper house of a bicameral legislature of the federal state (Suksi, 2011: 126, 130â131, 139), such as the Senate of the US Congress. By contrast, arrangements of territorial autonomy within a unitary state are usually asymmetrical arrangements under which one or some â but not all â regions of the state are granted high degrees of autonomy.
Secondly, the power of a local government in an autonomous region forming part of a unitary state is often, though not invariably, derived not from the constitution of the unitary state but from a law enacted by the legislature of the state. While a constitution is supreme over and binding on the national legislature, a law enacted by it is not. Thus whereas in a federal state the autonomy of each member state is constitutionally guaranteed by the provisions regarding division of power in the federal constitution, the territorial autonomy of an autonomous region within a unitary state is not necessarily directly protected by the constitution. Where territorial autonomy is derived from ordinary national legislation, it may, at least in constitutional theory, be withdrawn by legislative amendment without the need for constitutional amendment. Thus from the point of view of the constitutional theorist, the autonomy of a local government in a unitary state may (unless it is constitutionally entrenched) be less securely guaranteed or entrenched than the autonomy of a member state in a federation.
Thirdly, whereas in a federal state the federal government and state governments are usually considered âindependentâ and âcoordinateâ (Suksi, 2011: 86, 117, 126â127), with each government having exclusive jurisdiction over certain subject matters that is constitutionally protected, in a unitary state the relationship between the national government and the regional government to which autonomous powers have been devolved may be described as that between a âsuperiorâ and an âinferiorâ or âsubordinateâ organ of government (Suksi, 2011: 114â117, 121). The powers (of autonomy within the region) enjoyed by the âinferiorâ organ of government have been granted and transferred to it by the âsuperiorâ organ (i.e. the national legislature), which may at least in theory resume or override such powers.
The difference between federalism and territorial autonomy within a unitary state may also be presented by analyzing the delegation of governmental power from historical and logical points of view. In the process of the formation of a federal state, sovereign powers which were originally vested in the states are usually relinquished subject to the condition of having a fundamental constitutional guarantee of the division of power securing certain powers for the member states. On the other hand, the autonomy enjoyed by the people of an autonomous region of a unitary state does not logically exist prior to, but is ...
