European Yearbook of Constitutional Law 2020: The City in Constitutional Law 9462654301, 9789462654303

Citation preview

European Yearbook of Constitutional Law

Volume 2

European Yearbook of Constitutional Law 2020 The City in Constitutional Law

Ernst Hirsch Ballin Gerhard van der Schyff Maarten Stremler Maartje De Visser Editors

European Yearbook of Constitutional Law Volume 2

The European Yearbook of Constitutional Law (EYCL) is an annual publication devoted to the study of constitutional law. The yearbook provides a forum for indepth analysis and discussion of new developments in constitutional law in Europe and beyond. Each issue is dedicated to a specific theme. Papers are subject to editorial and double-blind peer review. The yearbook is published by t.m.c. asser press in cooperation with Springer Publishers. Contact To get in touch, please send an e-mail to [email protected]

More information about this series at http://www.springer.com/series/16431

Ernst Hirsch Ballin · Gerhard van der Schyff · Maarten Stremler · Maartje De Visser Editors

European Yearbook of Constitutional Law 2020 The City in Constitutional Law

Editors Ernst Hirsch Ballin Department of Public Law and Governance, Tilburg Law School Tilburg, The Netherlands

Gerhard van der Schyff Department of Public Law and Governance Tilburg Law School Tilburg, The Netherlands

Maarten Stremler Department of Public Law, Faculty of Law Maastricht University Maastricht, The Netherlands

Maartje De Visser School of Law Singapore Management University Singapore, Singapore

The views expressed in this Yearbook are not necessarily those of the members of the Editorial Board, the Board of Recommendation and/or those institutions they represent, including the T.M.C. Asser Instituut and t.m.c. asser press. ISSN 2405-6111 ISSN 2405-612X (electronic) European Yearbook of Constitutional Law ISBN 978-94-6265-430-3 ISBN 978-94-6265-431-0 (eBook) https://doi.org/10.1007/978-94-6265-431-0 Published by t.m.c. asser press, The Hague, The Netherlands www.asserpress.nl Produced and distributed for t.m.c. asser press by Springer-Verlag Berlin Heidelberg © t.m.c. asser press and the authors 2021 No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. This t.m.c. asser press imprint is published by the registered company Springer-Verlag GmbH, DE part of Springer Nature. The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany

Editorial Board Series Editors Prof. dr. Ernst Hirsch Ballin (Editor), Tilburg University Dr. Gerhard van der Schyff (Editor), Tilburg University Dr. Maartje de Visser (Editor), Singapore Management University Managing Editor Maarten Stremler LLM, Maastricht University

Board of Recommendation Prof. dr. Armin von Bogdandy, Max Planck Institute for Comparative Public Law and International Law Prof. em. dr. Marc Bossuyt, University of Antwerp Prof. dr. Alfonso Celotto, Roma Tre University Prof. dr. Janneke Gerards, Utrecht University Prof. dr. Daniel Halberstam, University of Michigan

Contents

1

Introduction: The City as a Multifaceted and Dynamic Constitutional Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maartje De Visser, Ernst Hirsch Ballin, Gerhard van der Schyff and Maarten Stremler

Part I

Cities Within National Power Structures

2

Cities and the Dutch Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wytze van der Woude

3

Modes of Urban Autonomy—The Constitutional Characteristics of Self-governance in Amsterdam, Paris and Hamburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gert-Jan Leenknegt

4

5

1

Reanimating Brussels—The Beating Heart of the Belgian Federation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Johan Lievens and Karel Reybrouck How Much Local Autonomy Is Good for a City? An Analysis of the Peruvian Constitutional Design for Cities and Its Effects in the Case of the Lima Metropolitan Area . . . . . . . . . . . . . . . Alberto Cruces Burga and Andrés Devoto Ykeho

17

29

53

77

6

Comparative Constitutional Politics in the Chinese Special Administrative Regions of Hong Kong and Macau . . . . . . . . . . . . . . . . 101 Eric C. Ip

7

A Tale of Three Cities—The Stadtstaat in German Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 Jörg Fedtke

vii

viii

Contents

Part II

Cities and Citizens

8

The Constitution and the City: Reflections on Judicial Experimentalism Through an Urban Lens . . . . . . . . . . . . . . . . . . . . . . . 157 Natalia Angel-Cabo

9

Urban Governance and the Right to a Healthy City . . . . . . . . . . . . . . . 185 Marius Pieterse

10 Topical Storm Approaching: Regulating Public Assemblies and Responding to Online Falsehoods in the City State of Singapore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 Jack Tsen-Ta Lee 11 The City of London: Dominance, Democracy, and the Rule of Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235 Paul Burgess Part III Cities and the International Arena 12 Accelerating Cities, Constitutional Brakes? Local Authorities Between Global Challenges and Domestic Law . . . . . . . . . . . . . . . . . . . 249 Barbara Oomen, Moritz Baumgärtel and Elif Durmu¸s 13 European Cities Between Self-government and Subordination: Their Role as Policy-Takers and Policy-Makers . . . . . . . . . . . . . . . . . . 273 Karl Kössler and Annika Kress Part IV Constitutional Law in the Age of the City 14 Urbanization, Megacities, Constitutional Silence . . . . . . . . . . . . . . . . . 305 Ran Hirschl 15 Constitutional Law, Federalism and the City as a Unique Socio-economic and Political Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 Erika Arban

Editors and Contributors

About the Editors Ernst Hirsch Ballin is Distinguished University Professor at Tilburg University and Vice-Dean for research of Tilburg Law School. His current research focuses on Dutch and transnational constitutional law, migration and citizenship, and legal research methods. Gerhard van der Schyff is Associate Professor in the Department of Public Law and Governance at Tilburg University. He lectures and conducts research on constitutional law and fundamental rights in comparative and European perspective. Maarten Stremler is Assistant Professor of Constitutional Law at the Faculty of Law of Maastricht University. His research interests are comparative constitutional law and constitutional theory. Maartje De Visser is Associate Professor at SMU School of Law, Singapore. Her current research focuses on constitutional engagement by courts and non-judicial actors, transnational judicial dialogues in Europe and Asia, and means to improve constitutional literacy.

Contributors Natalia Angel-Cabo Faculty of Law, Universidad de los Andes, Bogotá, Colombia Erika Arban Melbourne Law School, Centre for Comparative Constitutional Studies, Melbourne, Australia; Faculty of Law, University of Antwerp, Antwerp, Belgium Moritz Baumgärtel Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands ix

x

Editors and Contributors

Paul Burgess Faculty of Law, Monash University, Melbourne, Australia Alberto Cruces Burga Pontificia Universidad Católica del Perú, Lima, Peru Maartje De Visser School of Law, Singapore Management University, Singapore, Singapore Andrés Devoto Ykeho Pontificia Universidad Católica del Perú, Lima, Peru Elif Durmu¸s Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands Jörg Fedtke Faculty of Law, University of Passau, Passau, Germany; Tulane Law School, Tulane University, New Orleans, United States Ernst Hirsch Ballin Faculty of Law, Tilburg University, Tilburg, The Netherlands Ran Hirschl University of Toronto, Toronto, Canada; University of Göttingen, Göttingen, Germany Eric C. Ip Faculty of Law, The University of Hong Kong, Hong Kong SAR, People’s Republic of China Annika Kress Institute for Comparative Federalism, Eurac Research, Bozen, Italy Karl Kössler Institute for Comparative Federalism, Eurac Research, Bozen, Italy Jack Tsen-Ta Lee Public and International Law Committee, Law Society of Singapore, Singapore, Singapore Gert-Jan Leenknegt Tilburg Law School, Tilburg University, Tilburg, The Netherlands Johan Lievens Faculty of Law, VU Amsterdam, Amsterdam, The Netherlands Barbara Oomen Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands Marius Pieterse University of Witwatersrand, Johannesburg, South Africa Karel Reybrouck Leuven Centre for Public Law, KU Leuven, Leuven, Belgium Maarten Stremler Faculty of Law, Maastricht University, Maastricht, The Netherlands Gerhard van der Schyff Tilburg Law School, Tilburg University, Tilburg, The Netherlands Wytze van der Woude Faculty of Law, University of Groningen, Groningen, The Netherlands

Chapter 1

Introduction: The City as a Multifaceted and Dynamic Constitutional Entity Maartje De Visser, Ernst Hirsch Ballin, Gerhard van der Schyff and Maarten Stremler

Contents 1.1 The City as an Undervalued Constitutional Trope . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1.2 Cities Within National Power Structures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 1.3 Cities and Citizens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 1.4 Cities and the International Arena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1.5 Constitutional Law in the Age of the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1.1 The City as an Undervalued Constitutional Trope The inaugural edition of this Yearbook was devoted to a veritable classic in constitutional law, viz. judicial power. As one of the constituent elements of the horizontal trinity of powers, the judiciary has long captured the attention of scholars, politicians and the general public alike—across time and across space.1 Matters have 1 See

e.g. Hamilton 1788; Kelsen 1928; Ginsburg and Versteeg 2014.

M. De Visser (B) School of Law, Singapore Management University, Singapore, Singapore e-mail: [email protected] E. Hirsch Ballin · G. van der Schyff Tilburg Law School, Tilburg University, Tilburg, The Netherlands e-mail: [email protected] G. van der Schyff e-mail: [email protected] M. Stremler Faculty of Law, Maastricht University, Maastricht, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_1

1

2

M. De Visser et al.

been rather different for the government entity that is at the heart of the Yearbook’s second imprint: the city. In our modern-day states, cities are associated with the lowest rung of the national power structure, and this hierarchically inferior status has in turn given rise to the perception that cities do not make for a particularly alluring or meaningful object of constitutional study. In this regard, law appears to be somewhat out of step with the other branches of the social sciences, which hold cities in considerably higher regard.2 There are good reasons for doing so. Historically, the antecedents of cities as a governance unit predate Montesquieu’s famous conceptualisation of the judiciary as part of the trias politica by several centuries. Some of the most important concepts that have shaped the organisation of our nation-states have their roots in the city states (poleis) of ancient Greece. Athens is typically considered the world’s first democracy, in which all free adult males took part in the city’s political life.3 Each had the right to vote on proposed new laws during public assemblies held at the agora, infusing Athenian democracy with the kind of deep enfranchisement that contemporary efforts for more participatory government seek to replicate (though within the confines of our representative democratic systems). The Greek city states also conceived of the idea of citizenship, with the entitlements and duties that flowed from this status still forming the core of national citizenship. Participation in political decision-making was a privilege reserved to citizens on an equal basis4 who acquired that status through birth, not wealth, and which entitled them to the full protection of the government, including against enslavement by fellow citizens. In turn, Greek citizens owed political allegiance to the polis: they could not show loyalty to any other power and were duty-bound to take an interest in the affairs of the city-state on the pain of punishment.5 Fast-forwarding to the twenty-first century, we see several international organisations, including the EU and the UN, pushing towards more decentralisation and subsidiarity in state administration—a move that is strongly inspired by the belief that lower-level State units like cities are particularly well-suited to induce participatory governance. To give expression to and operationalise the democratic quality attributed to city governance the acceptance of a form of ‘city citizenship’ may be required.6 To the extent that this concept would be understood as not only normatively, but also as legally significant, the relationship with national citizenship will need to be worked out.7 Sociologists conceive of cities as spaces of high density (where individuals live in close proximity to one another), high diversity in terms of cultural, ethnic and religious make-up, high economic complexity and high socio-economic impact. These 2 See

e.g. Glaeser 2012; Schwab et al. 2017; Sassen 2005. 2019. 4 It should be noted that Athenian democracy was premised on limited citizenship: women, slaves and foreigners were denied citizenship and there was no route for non-citizens to acquire this status. 5 This is reflected in Aristotle’s well-known proposition in his Politics that ‘Man is by nature a political animal’, according to which the highest degree of human happiness is realised through political partnership with fellow citizens. For a succinct overview, see plato.stanford.edu/entries/aristotlepolitics. 6 On this notion, see amongst others Bauböck 2019; Pedroza 2019. 7 Cf. Stahl 2020. 3 Mitchell

1 Introduction: The City as a Multifaceted …

3

characteristics have not only been observed in modern cities: during the interbellum, the celebrated Belgian scholar Henri Pirenne demonstrated that the medieval city already exhibited a social vitality that resulted in an explosion of economic activity and a remaking of ‘the whole social order … along more flexible, more active and more varied lines’.8 The dynamism inherent in the sociological understanding of the city looks set to be amplified as a result of an urbanisation process that started in earnest with the first industrial revolution and has continued apace since then. At the midway point of that revolution, one in ten Europeans lived in a city. Less than a century later, the continent’s urban population had tripled. By 1950, the world’s urban population stood at 751 million, rapidly rising to 4.2 billion in 2018, according to United Nation figures. This number is projected to increase by more than 50 per cent by 2050.9 This means that cities will be home to the majority of the world’s population, for whom city administrations become, in many respects, their quintessential governing units.10 As front-line entities, city administrations are moreover at the vanguard in dealing with a host of challenges with a constitutional flair:11 creating a healthy, clean living environment; addressing social segregation across ethnicity, class, age or nationality;12 respecting the dignity and securing the basic human needs of (illegal) migrants that flock to cities; harnessing technology for social good—such as facilitating access to government services or better protecting communities from unwanted behaviour13 —while minimising the bad—like leaving those without digital literacy skills behind or disregarding legitimate privacy concerns.14 Consequently, cities are also increasingly appearing at the international stage. This Yearbook is situated among a budding body of works that aims to restore cities as deserving of serious scholarly attention in the field of (comparative) constitutional law.15 Its premise is that rather than constitutional backwaters, cities are exciting tropes for research as this is where the constitutional rubber hits the road. The contributions to this Yearbook showcase the kaleidoscopic range of issues at play, from the positioning of cities within the wider organisation of the State as well as their role as prime sites where individuals encounter or otherwise engage with State power.

8 Pirenne

2014, p. 102. Nations Department of Economic and Social Affairs 2019. 10 Arguing that city administrations can rise to the occasion: Barber 2013 and Emanuel 2020. 11 E.g. Katz and Nowak 2018; Inman 2009. 12 See e.g. Florida 2018; Trounstine 2018. 13 See e.g. Ranchordas 2019. 14 Van Zoonen 2016. 15 See Hirschl 2020; Massaro and Milczarek-Desai 2018; Bendor 2013; and Pieterse 2014. 9 United

4

M. De Visser et al.

1.2 Cities Within National Power Structures The signing of the Treaty of Westphalia in 1648 is often celebrated as the birth of the Nation State, yet it should be remembered that the arrival of this new model for the organisation of society came at the expense of untrammelled city power. Europe’s cities were repositioned as among the lowest constituent units within the overall state structure, with circumscribed competences and responsibilities.16 This design of territorial governance has similarly found favour in other parts of the world, often through colonisation.17 While the general placement of cities in the overall power structure can be said to be an archetypal feature of constitutional design, the precise institutional arrangements may vary considerably from one country to the next. Cities may also be subject to differentiated treatment within the confines of a single State, with some enjoying a greater measure of autonomy than what is otherwise the norm. Such an approach is perhaps most noticeable in federalised regimes, but also decentralised or unitary States can single out one or a few cities for special treatment. Even in the absence of a legally territorially pluralist approach, we should realise that the simple label ‘city’ captures units that are united in diversity as far as size, socio-economic relevance and actual political clout are concerned. This heterogeneous state of affairs is itself the product of a complex and dynamic interplay among historical, political, economic, geographical and human factors. Matters are compounded by the minimalist treatment that most constitutions reserve for cities: a quick database search reveals that about two-thirds of the texts currently in force do not mention the term at all. Among those that do, the constitutional recognition may be limited to the identification of the capital city. This legal state of affairs makes it necessary to identify and scrutinise relevant small-c constitutional rules in order to arrive at a good understanding of the relationship between cities and other echelons of government. Clearly, then, inquiries into the vertical distribution of power can be demanding, which arguably helps explain their relative dearth. At the same time, they are important and increasingly so. A careful inventory of the legal-political status quo is necessary for legal theorists to formulate a coherent theory of the city and its position in the constitutional order; for comparatists to identify genuine similarities and differences across jurisdictions; and for constitutional scholars generally to evaluate whether existing arrangements are still fit for purpose. A number of contributors to this edition of the Yearbook have engaged in the hard work that mapping exercises require. Taken together, their accounts showcase and contextualise the immense varieties in national constitutional design just alluded to. What is more, they identify in what respects and why existing arrangements are in need of reform as well as the form that improvements should ideally take. The Dutch constitutional arrangements as chartered in Chap. 2, written by Wytze van der Woude, are strikingly simple. The basic legal structure of big cities like Amsterdam and Rotterdam is no different from that of the smallest municipalities, 16 Cf. 17 See

Frug 1980. e.g. Harding and Sidel 2015.

1 Introduction: The City as a Multifaceted …

5

but the regulatory framework is not particularly rigid or prescriptive. This allows for bottom-up differentiation. Nevertheless, the need to establish intermunicipal forms of cooperation within urban agglomeration between the core-city and suburban municipalities has repeatedly provoked proposals for differentiation between large urban and smaller municipalities. Against this backdrop, Van der Woude reflects on the need to constitutionally demarcate cities vis-à-vis other types of local authorities. So far, none of the proposals for constitutional differentiation has been accepted. Consequently, Dutch cities continue to rely on the inherent flexibility of the existing arrangements—a state of affairs that Van der Woude considers defensible as well as desirable. Gert-Jan Leenknegt takes a comparative perspective in Chap. 3 and considers how Amsterdam, Hamburg and Paris fare in terms of constitutional autonomy. Barring the partial exception of the three cities-Länder in Germany, cities are treated according to a single, national and general structure of constitutional and legal arrangements in the Netherlands, Germany and France. This might seem anachronistic, given our contemporary reality in which big cities increasingly occupy a distinct place in the urban government landscape. Leenknegt accordingly offers two hypotheses in thinking about the design of a dedicated constitutional law framework for big cities. On the one hand, local and regional governance law arrangements could be usefully combined to strengthen the autonomy of big cities. On the other hand, the governance of complex and diverse big cities could be improved by decentralising democratic structures within cities. Complexity is a challenge that Johan Lievens and Karel Reybrouck also grapple with in their examination of the constitutional arrangements pertaining to Brussels in Chap. 4. Excluding the EU, the territory of Brussels is subject to six governments with formal legislative power. The authors argue that this city’s complicated constitutional structure impedes efficient and coherent metropolitan governance. Belgium’s constitutional design reflects not so much what is suitable for Brussels, but instead reflects a constitutional vision for the rest of the country, which does not always answer to the city’s needs. To address this situation, Lievens and Reybrouck propose a range of reforms with the aim of further developing Brussels’ status within Belgium’s overall federal structure and improving the accessibility of this structure for the general public. In Chap. 5, Alberto Cruces Burga and Andrés Devoto Ykeho explore the ventures of governance in the metropolitan region of Lima within Peru’s decentralising constitutional arrangements. Rapid population growth in cities like Lima has created considerable challenges in the fulfilment of metropolitan functions. The authors focus their analysis on the effects of Lima’s subdivision into various autonomous districts. They show how this intra-city segmentation is detrimental to the provision of public services, and may cause spending inefficiencies. In response, Burga and Ykenho argue that a wholesale re-evaluation of the country’s vertical design is needed as a first step in Peru coming to terms with its new urban reality. Questions of fragmentation and differentiation are also at the heart of Eric Ip’s analysis of the relationship between China and its two most well-known subnational entities, viz. Hong Kong and Macau, in Chap. 6. These cities are presently the only

6

M. De Visser et al.

territories to enjoy the status of special administrative region (SAR) within China’s unitary state structure, which translates into a significantly higher degree of autonomy than that available to other territorial divisions. Ip traces the origins of this asymmetric arrangement and its legal expression in the constitutional charters of Hong Kong and Macau. In so doing, he also reconstructs the factors that help explain why each of these SARs enjoys a dramatically different relationship with China, despite largely similar legal frameworks. Ip’s analysis shows the importance of crafting grants of local autonomy in such a way that these match the actual political will and expectations of all sides, all the more so when ideology issues are involved. The extent to which regional and local autonomy is accepted in a given constitutional system is arguably a reflection of the state’s constitutional identity. By way of example, in Germany three cities—Berlin, Hamburg and Bremen—have been accorded the constitutional rank of a Land (a party-sovereign state), which can partially be rationalised as in line with the country’s Germany’s federal character that in turn is an integral part of German constitutional identity. Indeed, the ‘eternity clause’ enshrined in Article 79 (3) of the Grundgesetz (Basic Law) declares constitutional changes infringing upon the federal constitutional structure inadmissible.18 However, as Jörg Fedtke’s contribution in Chap. 7 shows, the precise constitutional status of cities also reflects the constitutional history of a country. Fedtke’s contribution, which focuses on the extraordinary constitutional setting of the three German city-states, moreover illustrates how cities can simultaneously be part of different forms of cooperative governance in a multi-layered system. In contrast to Germany, national unity in a territorial sense is part and parcel of China’s constitutional identity, as confirmed in Article 3 of the PRC Constitution. This document accordingly does not contain any provisions that would stand in the way of possible future reductions of the actual regional or local autonomy.19 The special status for the autonomous city-regions Hong Kong and Macao is merely the result of agreements concluded with the former colonial powers, that moreover have a limited time span. Whereas cities in classic unitarian states may enjoy significant leeway in shaping their own policies and governing those living within city limits, the state’s constitutional identity neither precludes nor stimulates a higher degree of autonomy for cities, irrespective of their size or practical salience.

1.3 Cities and Citizens As local government units, cities are the principal sites where citizenship is put into practice through the invocation of fundamental rights and the performance of civic duties. Public squares, urban parks and streets are typical venues for the physical exercise of the rights to speech and assembly in the form of demonstrations, political campaign rallies and other modes of communication. The democratic rights for 18 See

further Calliess 2020, p. 156. 2019.

19 Zhai

1 Introduction: The City as a Multifaceted …

7

citizens are closely related to their physical presence in the local context. In Europe, this has resulted in the extension of such rights to certain categories of non-nationals of the encompassing, as required by EU law20 and the (poorly accepted) Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level (1992).21 In this sense, democratic governance practices in cities may herald an understanding of the legal concept of citizenship that is more suitable for the realities of the growing size of city populations all over the world through immigration, be it from rural hinterlands and from other countries.22 As ‘cities have a long history as the primary locus of allegiance and integration into the polity’, a municipal and urban view on citizenship is gaining influence.23 Beyond enabling the use of civil-political rights, cities have an important role in providing urban dwellers and those living in their hinterland with access to amenities that are indispensable for the enjoyment of socio-economic and cultural rights. The ongoing COVID-19 pandemic has thrown this role of cities into sharp relief. The idea that cities have a part to play in the operationalisation of the full suite of fundamental rights has led to the articulation of a ‘right to/through the city’,24 defined by the World Charter for the Right to the City as ‘the equitable usufruct of cities within the principles of sustainability, democracy, equity, and social justice. It is the collective right of the inhabitants of cities, in particular of the vulnerable and marginalised groups, that confers upon them legitimacy of action and organisation, based on their uses and customs, with the objective to achieve full exercise of the right to free self-determination and an adequate standard of living.’25 This right is increasingly inscribed and fleshed out in dedicated charters of city rights that the protagonists themselves have drawn up,26 usually without involvement of the national government: at present, Ecuador is the only country that recognises this right in its constitution.27 Such assertions of authority may be a welcome development for urban populations, but also raise challenging questions about the management as well as desirability of a multi-layered system for rights protection within a nation-state. 20 See Article 40 of the Charter of Fundamental Rights of the European Union: ‘Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.’ 21 See Article 6(1) of this Convention: ‘Each Party undertakes, subject to the provisions of Article 9, para 1, to grant to every foreign resident the right to vote and to stand for election in local authority elections, provided that he fulfils the same legal requirements as apply to nationals and furthermore has been a lawful and habitual resident in the State concerned for the 5 years preceding the elections.’ 22 Hirsch Ballin 2014. 23 Maas 2017, p. 661. 24 Originally coined by French philosopher Henri Lefebvre in his Le Droit à la ville (Lefebvre 1968), revised and adapted by Harvey 2003. 25 Signed during the World Social Forum under the auspices of the UN in 2005 (Porto Alegre). The full text of the Charter can be found at: https://hic-gs.org/document.php?pid=2422. 26 Such as the Global Charter—Agenda for Human Rights in the City and the European Charter for the Safeguarding of Human Rights in the City, both adopted by the United Cities and Local Governments (UCLG) network. 27 Ecuador Constitution, Article 31.

8

M. De Visser et al.

Several contributions in this Yearbook explore the complex interplay between cities, rights and citizens. Natalia Angel-Cabo, in Chap. 8, shows how cities are fundamental arenas for contesting rights. Focusing on the realisation of socio-economic rights in the Global South, she examines how judicial decisions regarding constitutional rights are received, discussed and implemented ‘on the ground’, i.e. in the social reality of cities. In particular, she considers the potential and limitations of judicial experimentalism, an approach in which courts do not make final judgments directly, but instead seek solutions through dialogue and negotiation with the authorities and populations concerned. In Chap. 9, Marius Pieterse sketches the relationship between the right to a city and the right to health, resulting in the right to healthy city. His essay explains that the physical features of cities influence the mental and physical health of their inhabitants, adding that many of the determinants for this fall under the jurisdiction of cities to some or other extent. Although constitutional frameworks in this regard differ widely, it becomes increasingly clear that urban governance must not be neglected in addressing health related issues such as the COVID-19 pandemic or climate change. Pieterse concludes that by making a conscious effort in applying their powers, cities can contribute to realising the right to health. Whereas the right to the city is normally discussed in relation to the physical urban space, the digitalisation of society focuses attention on the interplay between material spaces and the digital realm. Chapter 10 by Jack Lee examines the prospects for a digital right to the city in Singapore, with particular reference to the ability for people to come together in support of public causes as well as make online statements the veracity of which is questionable. Lee shows how a generous understanding of ‘public interest’ on the part of the authorities is likely to stand in the way of the constitutional recognition of a right to the city, be it in its digital or traditional guise. At the same time, his analysis also draws attention to the responsibilities that individuals must adhere to if and when such a right becomes accepted. The exercise of speech and assembly rights take on special importance in relation to the people’s involvement in political decision-making. It is common to observe distinct voting preferences and patterns across urban and rural areas, which can have major ramifications for a country’s overall political trajectory. Against this reality, Paul Burgess in Chap. 11 invites us to reflect on the circumstances in which and conditions under which participatory decision-making would be a sensible choice. His point of departure is the Brexit referendum, in which Greater London as the UK’s quintessential bastion of power was unable to secure the outcome favoured by the majority of its inhabitants—and arguably also by the national political elites whose offices are located in this metropolis. Burgess argues that calibrated resource to direct democracy should be evaluated positively from a Rule of Law perspective, by providing a counterbalance to the particular incentives or preferences of urban powerhouses on matters of national importance.

1 Introduction: The City as a Multifaceted …

9

1.4 Cities and the International Arena While international law continues to operate the legal fiction that the State is a monolithic entity, a closer look reveals that cities are increasingly flexing their—derivative—international muscles. Many are stepping up to implement the growing corpus of international commitments that the national government has accepted, notably in high-profile areas such as environment protection, migration or human rights.28 Sometimes this is done pursuant to delegated authority; on other occasions, cities voluntarily assume responsibility for international rights and obligations, typically when the national government has shown less appetite to do so. Recall, by way of illustration, the way in which US cities rallied around the objectives encapsulated in the Paris Agreement on Climate Change in the wake of the Trump administration announcing its intention to withdraw from that pact.29 For their part, international organisations have begun to realise that partnering cities can be attractive in the delivery of their objectives. Thus, UN-Habitat has developed a pro-decentralisation agenda that is inspired by anticipated democracy gains,30 while the World Bank promotes fiscal decentralisation and privatisation to advance economic growth.31 On a related note, in a recent article, Martha Davis explores the relation between ‘the vibrant international movement to ensure that local governments recognise, participate in, and comply with, human rights norms’ and ‘the smart cities movement’.32 As she notes, the application of new technologies by the city administration in providing public services and ensuring regulatory oversight ought to be compliant with human rights norms. A stronger presence of cities in the international arena may have a positive impact on the effectiveness of good governance initiatives. The picture is arguably more mixed when viewed through a domestic constitutional perspective frame: allowing cities to play a constructive role may upset the conventional arrangements pertaining to the allocation of State powers and responsibilities. However, since treaties between states are being supplemented or even to some extent replaced by soft law like the global compact on migration,33 legal development is no longer exclusively tied to the sovereign authority of states and moving ‘beyond formal law’.34 Cities have entered 28 See

Gerald et al. 2006; Blank 2006. US Climate Mayors commit to adopt, honor and uphold Paris Climate Agreement goals’ (statement from the climate mayors in response to President Trump’s withdrawal from the Paris Climate Agreement), available at: https://climatemayors.org/actions/paris-climate-agreement/. 30 See UN-Habitat, ‘International Guidelines on Decentralization and Access to Basic Services for all’ (2009) and the general microsite on local governments and decentralisation at https://unhabitat. org/topic/local-governments-and-decentralisation. 31 See the general World Bank microsite at: https://www1.worldbank.org/publicsector/decentraliza tion/what.htm. 32 Davis 2020, p. 974. 33 Global Compact for Safe, Orderly and Regular Migration (Marrakech 11 December 2018), endorsed by the General Assembly of the United Nations on 19 December 2018, A/RES/73/195. 34 Krisch 2019, p. 698. 29 ‘461

10

M. De Visser et al.

the international arena, especially in response to the emergence of new public tasks like prevention of climate crises.35 It is precisely this role of cities that Barbara Oomen, Moritz Baumgärtel and Elif Durmus discuss in Chap. 12, with reference to their view on international responsibility. Distancing themselves from national laws and policies in the light of human rights norms and sustainable development goals, e.g. as ‘Accelerating Cities’ ‘Solidarity Cities’ or Sustainable Cities, cities display a new level of constitutional selfconsciousness. The authors investigate how courts respond to manifestations of such self-consciousness in cases from Germany, Turkey, France, the Netherlands and Spain in which national governments had become embroiled in conflict with cities over the constitutional division of responsibilities. This chapter lays the foundations for comparative research focused on the dynamics of local authorities and on the question how their position is shaped by an invocation of international law in general, and human rights in particular. More than thirty years after the European Charter of Local Self-Government took effect in 1988, Karl Kössler and Annika Kress in Chap. 13 examine to what extent European cities indeed qualify as self-governing policy-makers and policy-takers. They develop three criteria on the basis of which various types of special cities in Germany, Austria and Italy are selected and compared. It becomes apparent that selfgovernment as policy-making is undermined by a lack of financial resources when measured against the mandates of cities. As policy-takers, the three types of special cities are involved in national and sub-national legislation through local government associations, and opportunities for specific representation regarding matters with a local impact. To fully rise to the occasion, special cities in each of the jurisdictions covered would have to exceed the standards set by the Charter. This, the authors conclude, however poses little difficulty given that the Charter only sets minimum standards. These relatively low benchmarks are not altogether surprising, as the Charter seeks to accommodate the diverse arrangements in a wide variety of states. The corollary of privileging inclusivity to such an extent is however that it devalues the Charter as an instrument to achieve legal harmonisation.

1.5 Constitutional Law in the Age of the City With the growth of cities, our expectations and aspirations for urban living grow as well, at times even exceeding the standard to which we hold states: cities should be paragons of good governance, eminently liveable spaces,36 smart as well as sustainable.37 The meaning to be ascribed to and practical realisation of these ideals requires a conversation in which constitutional law must feature more prominently than it has 35 See

e.g. Nijman 2011; Aust and du Plessis 2019. Davern et al., ‘How do we create liveable cities?’ (The Conversation, 7 December 2015); Kaal 2011. 37 Cf. Goal 11 of the UN Sustainable Development Goals. 36 E.g.

1 Introduction: The City as a Multifaceted …

11

to date. This Introduction has identified three sets of relations that await unpacking: that between cities and other institutions in the national constitutional architecture; that between cities and their inhabitants; and that between cities and international organisations. A study of the nature and quality of those relationships may yield new, different views on how to conceptualise cities in legal terms. What is the fundamental purpose of a city: an engine for economic growth, a loyal agent of the State, a place for individual and collective development or yet something else? As Richard Schragger has noted, ‘how we think about what a city is alters what we think the city can do’.38 Several pertinent follow-up questions present themselves. Can subnational constitutionalism be extended beyond federations and beyond the regional tier? Should cities (continue to) be grouped together with and treated akin to other local territorial units? If differentiated treatment in law is called for, what form should this take and how can States ensure that bedrock constitutional values are not waylaid in the course of cities’ legal emancipation? Two contributions to the Yearbook provide a preview of what the future of constitutional law in the age of the city may look like. The reasons for cities’ invisibility in scholarly works and legal-constitutional arrangements are elucidated in vivid terms in the contribution to this Yearbook by Ran Hirschl. In Chap. 14, he identifies a state-centric view that has endured over centuries and across jurisdictions as the key culprit. States are weary of becoming locked in an internal competition for power with subnational units, notably as far as large cities are concerned. Moving beyond diagnosis, Hirschl suggests that it is precisely the megacity as the ultimate manifestation of urban agglomeration that must become a new territorial paradigm. Noteworthy are also the references to attitudes by states in the Global South, several of which now countenance the empowerment of large metropolises (albeit subject to ultimate control by the centre), which offer the tantalising prospect of legal transplants going from East to West for a change. In Chap. 15, Erika Arban posits that cities in general should be understood as unique socio-economic and political spaces distinct from municipalities and local governments. This would enable more and more creative experimentation with novel modes of governance that evokes the idea of regulatory competition and a ‘race to the top’. What is more, recognising the special character of cities should bode well for their legal and economic (re-)empowerment. This should be an attractive value proposition for those invested in overcoming the gap between aspirations and capabilities that currently plagues especially larger cities. There is much work to be done to arrive at a better account of the constitutional positioning of cities; fortunately, there is also much to work with. This Yearbook aims to enlarge the corpus of legal academic writings that address one of the most dynamic areas in the field of constitutional law and in the process, whet intellectual appetites for others to join the fray.

38 Schragger

2016, p. 10.

12

M. De Visser et al.

References Aust H, du Plessis A (eds) (2019) The Globalisation of Urban Governance: Legal Perspectives on Sustainable Development Goal 11. Routledge, Abingdon Barber B R (2013) If Mayors Ruled the World: Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Bauböck R (2019) Cities vs States: Should Urban Citizenship be Emancipated from Nationality? https://globalcit.eu/cities-vs-states-should-urban-citizenship-be-emancipated-from-nation ality Accessed 31 August 2020 Bendor J (2013) Municipal Constitutional Rights: A New Approach. Yale Law & Policy Review 31:389–431 Blank Y (2006) The City and the World. Columbia Journal of Transnational Law 44:875–939 Calliess C (2020) Constitutional Identity in Germany: One for Three or Three in One? In: Calliess C, van der Schyff G (eds) Constitutional Identity in a Europe of Multilevel Constitutionalism. Cambridge University Press, Cambridge, pp 153–181 Davis M F (2020) Get Smart: Human Rights and Urban Intelligence. Fordham Urban Law Journal 47:971–991 Emanuel R (2020) The Nation City: Why Mayors Are Now Running the World. Knopf, New York Florida R (2018) The New Urban Crisis: How Our Cities Are Increasing Inequality, Deepening Segregation, and Failing the Middle Class – and What We Can Do About It. Basic Books, New York Frug G E (1980) The City as a Legal Concept. Harvard Law Review 93:1057–1154 Gerald E, Frug G E, Barron D J (2006) International Local Government Law. The Urban Lawyer 38:1–62 Ginsburg T, Versteeg M (2014) Why Do Countries Adopt Constitutional Review? Journal of Law, Economics, & Organization 30:587–622 Glaeser E (2012) Triumph of the City: How Our Greatest Invention Makes Us Richer, Smarter, Greener, Healthier and Happier. Penguin Books, London Hamilton A (1788) Federalist No. 78 And the Power of the Judiciary Harding A, Sidel M (eds) (2015) Central-Local Relations in Asian Constitutional Systems. Hart Publishing, Oxford Harvey D (2003) The Right to the City. International Journal of Urban and Regional Research 27:939-941 Hirsch Ballin E (2014) Citizens Rights and the Right to Be a Citizen. Brill Nijhoff, Leiden Hirschl R (2020) City, State: Constitutionalism and the Megacity. Oxford University Press, Oxford Inman R P (ed) (2009) Making Cities Work: Prospects and Policies for Urban America. Princeton University Press, Princeton Kaal H (2011) A Conceptual History of Liveability. City 15:532-547 Katz B, Nowak J (2018) The New Localism: How Cities Can Thrive in the Age of Populism. Brookings Institution Press, Washington, D.C. Kelsen H (1928) La guarantie juridictionnelle de la constitution (La justice constitutionnelle). Revue du droit public XXXV:197–257 Krisch N (2019) Pluralism. In: d’Aspremont J, Singh S (eds) Concepts for International Law: Contributions to Disciplinary Thought. Edward Elgar, Cheltenham/Northampton, pp 691–707 Lefebvre H (1968) Le Droit à la ville. Antropos, Paris Maas W (2017) Multilevel Citizenship. In: Shachar A, Bauböck R, Bloemraad I, Vink M (eds) The Oxford Handbook of Citizenship. Oxford University Press, Oxford, pp 644-668 Massaro T M, Milczarek-Desai S (2018) Constitutional Cities: Sanctuary Jurisdictions, Local Voice, and Individual Liberty. Columbia Human Rights Law Review 50:1-108 Mitchell T N (2019) Athens: A History of the World’s First Democracy. Yale University Press, New Haven

1 Introduction: The City as a Multifaceted …

13

Nijman J (2011) The Future of the City and the International Law of the Future. In: Muller S, Zouridis S, Frishman M, Kistemaker L (eds) The Law of the Future and the Future of Law. Torkel Opsahl Academic EPublisher, Oslo, pp 213- 229 Pedroza L (2019) Citizenship Beyond Nationality – Immigrants’ Right to Vote Across the World. University of Pennsylvania Press, Philadelphia Pieterse M (2014) Development, The Right to the City and the Legal and Constitutional Responsibilities of Local Government in South Africa. South African Law Journal 131:149–177 Pirenne H (2014) Medieval Cities: Their Origins and the Revival of Trade – Updated Edition. Princeton University Press, Princeton Ranchordas S (2019) Nudging Citizens Through Technology in Smart Cities. International Review of Law, Computers & Technology 33:210–229 Sassen S (2005) The Global City: Introducing a Concept. Brown Journal of World Affairs XI:27–43 Schragger R (2016) City Power: Urban Governance in a Global Age. Oxford University Press, Oxford Schwab C, Bouckaert G, Kuhlmann S (eds) (2017) The Future of Local Government in Europe – Lessons from Research and Practice in 31 Countries. Nomos Verlagsgesellschaft, Baden-Baden Stahl K A (2020) Local Citizenship in a Global Age. Cambridge University Press, Cambridge Trounstine J (2018) Segregation by Design: Local Politics and Inequality in American Cities. Cambridge University Press, Cambridge United Nations Department of Economic and Social Affairs (2019) World Urbanization Prospects – the 2018 Revision. United Nations, New York. https://population.un.org/wup/Publications/Files/ WUP2018-Report.pdf Accessed 31 August 2020 Van Zoonen L (2016) Privacy Concerns in Smart Cities. Government Information Quarterly 5:472– 480 Zhai H (2019) The Constitutional Identity of Contemporary China: The Unitary System and Its Internal Logic. Brill Nijhoff, Leiden

Maartje De Visser is Associate Professor at SMU School of Law, Singapore. Her current research focuses on constitutional engagement by courts and non-judicial actors, transnational judicial dialogues in Europe and Asia, and means to improve constitutional literacy. Ernst Hirsch Ballin is Distinguished University Professor at Tilburg University and Vice-Dean for research of Tilburg Law School. His current research focuses on Dutch and transnational constitutional law, migration and citizenship, and legal research methods. Gerhard van der Schyff is Associate Professor in the Department of Public Law and Governance at Tilburg University. He lectures and conducts research on constitutional law and fundamental rights in comparative and European perspective. Maarten Stremler is Assistant Professor of Constitutional Law at the Faculty of Law of Maastricht University. His research interests are comparative constitutional law and constitutional theory.

Part I

Cities Within National Power Structures

Chapter 2

Cities and the Dutch Constitution Wytze van der Woude

Contents 2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1.1 What to Call a City? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Constitutional Leeway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.1 Institutional Leeway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3.2 Substantive Leeway . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Carving Out a Specific Legal Position for Cities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

17 18 19 21 21 22 26 27 28

2.1 Introduction Were mayors to rule the world,1 cities would be their vehicle. And a strong vehicle at that. All over the world, cities are growing.2 Compared to their more rural neighbours, cities probably have never had much to complain about in the department of selfassurance. Nevertheless, this also seems to be growing.3 The same goes for scientific interest in them, which was never small to begin with. Of course, most scientific research into cities is conducted in fields that quite naturally devote attention to them. Obvious fields are urban planning and environmental studies, but also history 1 Barber

2013. Nations Department of Economic and Social Affairs - Population Division 2019. 3 Note quite jubilant titles, such as: Glaeser 2012; Barcelona and Comu 2019; or Hemel 2016. 2 United

W. van der Woude (B) Faculty of Law, University of Groningen, Groningen, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_2

17

18

W. van der Woude

and sociology have longstanding traditions in choosing the city as a focal point for scientific query. What—at least in the Netherlands—seems to be lagging behind, is legal research. Lawyers are employed by cities, they advise cities, they litigate against cities, opt to stand for seats in city councils. Hardly ever, though, do they contemplate their specific legal position or their specific legal framework. At least, hardly ever in writing. A preliminary explanation for this might be simply that from a Dutch legal point of view cities are not all that special or to go even further: they do not exist. They fall within the category of municipalities. This means that a city the size of Amsterdam (737.363 inhabitants in 2019) falls in the exact same category as the island of Schiermonnikoog (833 inhabitants in 2019), or the municipalities of Harlingen and Almere (13.338 and 168.837 inhabitants respectively in 2019). The applicable norms of the Dutch constitution—predominantly Chapter 7 of the Constitution—are exactly the same. The Municipalities Act (Gemeentewet) is the same and hardly any of the other items of national legislation on municipalities make significant distinctions between municipalities based, for instance, on their size. This means that although the law of municipal government is studied to some extent within the Netherlands, specific studies of cities within that legal framework are somewhat missing. This chapter aims to offer a short introduction to the position of cities in Dutch law. It centres around the question whether or not a specific legal—or even constitutional—status should be considered for cities. In order to answer that question, I will look at the current constitutional possibilities for cities to distinguish themselves from other municipalities. This might give some insight in the type of legal challenges that a specific legal status could take away. Finally, I will try to give a preliminary assessment of the desirability of doing so. All of this is preceded by a short historical introduction. This might prove interesting because it goes back to a period when there was indeed a separate legal position for cities.

2.1.1 What to Call a City? First, however, we must try to define what—in the context of this chapter—might be called a city to begin with. Being ignored by the law does not mean that cities (the term nor the entity itself) are devoid of any practical meaning in current public affairs. Quite the contrary, as we will see later. What is lacking is any type of clear definition of when a municipality (or group of municipalities) might be called a city. Everyone regards Amsterdam, of course, as a city. Considering its size and central position in the larger region, Almere probably should probably also be, although one might also argue to consider Almere part of the larger ‘Amsterdam metropole’. But Harlingen? From a point of view of medieval history, Harlingen was granted city rights in 1234. From a point of view of current demographics in the Netherlands however—and do not let the good people of Harlingen hear you say this out loud—the term ‘city’ would lose any current practical meaning if such small and off-centred entities were to be counted among them.

2 Cities and the Dutch Constitution

19

Interesting as it might be to further elaborate on this question, the focus of this chapter lies elsewhere. More important than to know when an entity might be called a city, is the question whether or not from any legal point of view it would make sense to distinguish between cities and other forms of (rural) municipal government. Adjacent questions would be whether the current constitutional—or otherwise legal—framework would allow for such distinctions or that a fundamental change of either the constitutional or otherwise legal framework should be considered. However, that does not alter the fact that the reader must have some idea of what this author means by ‘city’, since this is a term that cannot be avoided here. In this chapter, the term city is seen as a relative term and refers to a municipality or cluster of municipalities that is of above average size—by Dutch standards—and fulfils a central function in, for example, any economic or cultural sense.

2.2 Historical Background In light of the questions raised above, some historical background is in order. One might argue that the granting of city rights in the Middle Ages or shortly thereafter would be a logical starting point. A somewhat shortened version has been chosen, which finds its starting point in the constitutional system that applied prior to the current one, thus providing more immediate background for the current debate. This is the system that applied after regaining independence from France at the beginning of the nineteenth century and that held until roughly the middle of that same century. For a proper understanding of this system one should realize that the French had introduced a uniform structure of local government within a unitary state. Before the period of French rule (in the time of the ‘Dutch Republic’) Dutch local government had been a colourful patchwork of cities, villages, municipalities, counties, baronies and duchies within what we would now call a federal structure. The latter meaning that local government could also vary considerably throughout the country. After regaining independence from the French, a new structure for the Dutch state is designed. The position of local government is explicitly under discussion. The thoughts of retaining the French ‘innovation’ of the unitary state compete with the ideal of restoring the diversity of local government of days passed. This created an ambivalent attitude that would ultimately lead to a system that received much criticism. According to legal scholars at the time this form of local government was ‘in many ways absurd and inaccurate, and thoroughly flawed’.4 The stalemate indeed left its mark on the new constitutional regime in the sense that it reads like a compromise. Every province was to make regulations for local government, distinguishing only between ‘urban’ and ‘rural’ administration. However, between provinces these regulations could differ. Moreover, all of these regulations had to be adopted by the King. To a certain extent, cities themselves were ‘at the

4 As

cited (in Dutch) by Van der Pot 1933, pp. 308–309.

20

W. van der Woude

controls’. The constitution allowed city governments to propose their draft regulations to the King. The regulations for the rural administration were drafted by the States of the provinces. The Constitution provided for a lot of freedom in drafting these regulations, but for the cities it did require a form of indirect democracy. With regard to urban governance, the Constitution prescribed that electoral colleges (‘kiezers-kollegien’) were to be introduced in each city and that these should be convened once a year to fill vacant seats in the city council (the existence of a city council thus being implied). The electoral colleges in turn had to be filled through of elections. Citizens had a right to participate in these elections. Although requirements for suffrage were steep for urban voters, there was no constitutional right to vote at all for those living under rural administrations.5 Possible explanations for this evoke societal disparities of a bygone age, in which cities were (also) populated by a class of well-educated and rich citizens who were not necessarily of noble birth, whereas rural areas were not. The regulations were established in the period between 1815 and 1819 and experienced changes in the period between 1824 and 1825. Although the Constitution allowed differences per province, they were fairly uniform. In almost all provinces, cities were to establish a city council, whose members were appointed for life by the electoral colleges. Members of these colleges, who must have lived in the city for a number of years and had to meet high welfare requirements, were appointed for a period of three years by the inhabitants of the municipality who, as the constitution indicated, paid a certain sum in taxes. The rural regulations showed a somewhat greater diversity between provinces, but roughly the structure of the administration amounted to the following. The municipality was governed by a ‘schout’ appointed by the King and a municipal council, whose members were appointed not from the population, but from the province. The Constitutional Review of 1848 heralded a new era for the municipal administration.6 Although this only became operational with the Municipalities Act of 1851, the Constitution of 1848 outlined the framework along which the municipal administration would take shape in seven articles. The main characteristic was the standardization of the municipal order; the difference between urban and rural municipalities disappeared and made way for a uniform administrative structure: the municipality. Provincial differences were abolished. It would also apply to all municipalities that the council elected by direct elections (on the basis of census voting) was at the head of this municipality, the further organization and composition of which would be regulated by law. The constitutional sketch was further coloured in the Municipal Act of 1851.

5 See

Articles 133 and 134 of the Constitution as it read in 1815. ‘auctor intellectualis’ of this constitutional review was J.R. Thorbecke, who had been one of the staunchest critics of the way local administration was organized under the Constitution as it read since 1815. See Thorbecke 1843, pp. 16 and onward.

6 The

2 Cities and the Dutch Constitution

21

2.3 Constitutional Leeway Although the Constitution has been amended many times since 1848, it is precisely this uniform element of decentralized administration that has stood firm. Therefore, this element deserves further study for those looking for a special legal position for cities. Perhaps one reason that the uniform element has stood the test of time is because the constitutional structure with regard to decentralized administration is one of broad strokes. Forms of differentiation—in both the administrative structure of municipalities and in substantive law—are also possible within these constitutional constraints. These are further specified below.

2.3.1 Institutional Leeway The Constitution contains a fair level of detail regarding the way municipalities are organized. For example, the Constitution requires that there be a municipal council in every municipality, which also heads the municipality. The administration of a municipality is further formed by a mayor and a municipal executive consisting of said mayor and a small number of aldermen (Article 125 of the Constitution). Municipal residents elect the municipal council directly (Article 129 of the Constitution) and the municipal council has the right to adopt regulations (Article 127 of the Constitution). For the rest, it is up to the national legislator to determine how the structure of the municipal administration will take shape (Article 132 of the Constitution). The latter is primarily done in the Municipalities Act. This Act follows the main framework prescribed in the Constitution. It did, however, find significant leeway within this framework within the system of ‘municipal committees’. The shaping of these committees is not regulated by the Constitution. The Municipal Act, for its part, declares the allocation of tasks to these committees essentially the responsibility of municipalities themselves. This gives large municipalities such as Amsterdam and Rotterdam the possibility to use this committee structure to organize forms of intramunicipal decentralization, by setting up committees for certain areas within the municipality.7 Article 135 of the Constitution provides another form of institutional leeway. This article stipulates that municipalities can enter into joint ventures with other municipalities, with provinces, and with the national government. The nature of these partnerships differs (public or private), as well as the size and scope thereof. The fact that such partnerships are hardly necessary for the larger cities is related to the greater financial and human resources that cities often have compared to smaller municipalities. Where many smaller municipalities have to work together to perform 7 In doing so, they are in fact effecting the continuation of so-called ‘sub-municipalities’, which were

explicitly made possible in the Municipalities Act until 2014, but which are now being continued under a different name. The most important difference is that direct elections for these municipalities are no longer legally guaranteed.

22

W. van der Woude

certain tasks—for example in social security and economic development—the larger cities are able to do this themselves. Whenever larger municipalities enter into these partnerships, this is often for the benefit of the smaller municipalities. As such, larger municipalities are in a position to make more demands. In many cases, this means that these smaller municipalities will have to comply more with the will of the larger neighbour than the other way around. Therefore, in practice, larger municipalities (cities) either need such partnerships less or play a central role within them. Thus maintaining a larger autonomy. An interesting development is that clusters of municipalities might use the instrument of municipal partnerships to mimic the status of a city. The most striking example of this is the collaboration between the Drechtsteden. The Drechtsteden are a partnership of seven municipalities.8 As they present it themselves,9 together they form the fifth largest city in the Netherlands (slightly fewer than 300,000 inhabitants). The cooperation is formed under public law10 and provides for a joint council (composed of the underlying municipal councils), to which an ambitious package of municipal tasks has been delegated upward. The Drechtsteden thus gain collective clout. On the other hand, this also means that the individual cooperating municipalities had to give up quite a lot of their powers. The examples given here might come across as somewhat disjointed. What they mean to illustrate however, is that the constitutional framework allows municipalities to make a variety of their own choices when it comes to the manner in which they are organized. In practice, the cities use this framework to its maximal benefit.

2.3.2 Substantive Leeway The question of differentiation also has a more substantive constitutional angle. Article 124 of the Constitution distinguishes between two basic figures of municipal powers. On the one hand, there are autonomous powers; on the other hand, there are delegated powers (‘medebewind’). Although it might not seem this way, both are dependent on the degree of substantive leeway the national legislator wishes to grant. For delegated powers this is more or less self-explanatory. It is up to the national legislator to decide which tasks it will delegate to municipalities, granting them ensuing powers to execute these tasks. For most of these powers, municipalities are equipped with possibilities to make their own policy choices. Autonomous powers can be described as the intrinsic powers of municipalities, which they can wield on their own accord, provided that they do not violate national law (or international law, for that matter). In effect, this means that municipalities have the power to regulate and administrate their municipal matters as long as there is no national legislation 8 Dordrecht,

Zwijndrecht, Papendrecht, Hendrik-Ido-Ambacht, Sliedrecht, Alblasserdam and Hardinxveld-Giessendam. 9 See: https://www.drechtsteden.nl/drechtsteden Accessed 31 August 2020. 10 Via the Joint arrangement Drechtsteden (‘gemeenschappelijke regeling Drechtsteden’).

2 Cities and the Dutch Constitution

23

either claiming dominion over these matters or otherwise limiting municipalities in doing so themselves. Examples of autonomous matters are (large parts of) public order and safety, economic development or culture. In short, both constitutional forms of municipal powers grant room to municipalities to shape their own policies. The degree to which municipalities utilise this room is largely dependent on their means, be it in finances or human resources. As was said before, larger municipalities—i.e. cities—have more of these means to begin with. Indicative of this is the way in which larger municipalities seem to rely less on the legislative services of the Association of Netherlands Municipalities (Vereniging van Nederlandse Gemeenten, VNG). The Association provides all municipalities with model-regulations their councils can adopt and of which they can be certain— to an overwhelming degree—that they are compatible with national law. Practice shows that smaller municipalities hardly ever deviate from these model-regulations, whereas larger municipalities tend to get ‘more creative’ with them.11 One might—of course—attribute this to differences in political wishes between municipal councils. Then again, it is not much of a stretch to attribute at least part of this to the larger legal expertise within the organisation of larger municipalities.

2.3.2.1

Fundamental Rights

This being said, there are also substantive constitutional barriers to excessive regulatory creativity in larger municipalities. To illustrate this, it is necessary to turn to the first chapter of the Dutch Constitution: the chapter on fundamental rights. With regard to limiting these fundamental rights, the Constitution uses a system that ensures that the national legislator is primarily in control. Virtually all restriction clauses require that the national legislator determines which restrictions are permitted and normally also under what conditions they are permitted. Although in some cases the legislator is authorized to delegate making such restrictions—for example to municipalities—the national legislator cannot be ‘skipped’ by municipalities. This became clear to the municipality of Rotterdam recently in court proceedings regarding a provision from a municipal regulation. This provision prohibited socalled street intimidation. Translated, the provision reads as follows. It is forbidden to jeer someone else or others on either along the road or in a building accessible to the public, or to harass another person or others with offensive language, gestures, sounds or behaviour.

The Court of Appeal of The Hague reviewed this provision against Article 7 of the Constitution12 and made short work of it, stipulating that the fundamental right to 11 An

example of this will follow shortly. relevant part of para 3 reads as follows. “No one shall be required to submit thoughts or opinions for prior approval in order to disseminate them (…) without prejudice to the responsibility of every person under the law”. 12 The

24

W. van der Woude

freedom to express one’s thoughts or opinions can only be restricted by national law.13 This means that there is little more to Rotterdam than trying to get the national legislator to create comparable possibilities in the national Criminal Code. This is no insurmountable task. The municipality of Rotterdam has previously managed to convince the national legislator to create legislation to limit fundamental rights. This concerned the liberty of movement and the freedom to choose residence (Article 2 of the Fourth Protocol to the ECHR). In 2005, national legislation was created to grant municipalities quite far reaching powers to address social-economic problems in deprived neighbourhoods. A new Act made it possible to prevent people from settling in certain areas within a city, if they do not meet certain income requirements or if police data show that they have a judicial past that endangers the quality of life in a neighbourhood. Municipalities can only apply this law in neighbourhoods with at least 5000 (and at most 30,000) residents, which means that a municipality must already have a certain size to be able to use the law at all. The fact that the law is aimed at large cities is also evident from the name: Act on Extraordinary Measures for Urban Problems, the literal translation for the latter part being ‘big-city problems’.14 The fact that this act is popularly known as the Rotterdam Act does not mean that the municipality of Rotterdam issued it. That would not be possible. However, it is true that the municipality of Rotterdam has managed to convince the national legislator of the need for such a law. Also in the realm of fundamental rights are measures providing for data sharing between government agencies to track down or prevent organized crime. Within the limits of the EU’s General Data Protection Regulation (GDPR) and the Constitution (Article 10), municipalities are finding ways to share data with police, prosecutor’s offices, tax authorities and even secret services. Insofar as these ways do not suffice, new national legislation is needed. In part prompted by municipal suggestions, a bill for such legislation was offered to parliament in 2020.15

2.3.2.2

Fundamental Rights, Covid-19 and the Rise of the ‘Super-Mayor’

When it comes to fundamental rights Covid-19—as with anything—has provided a stress test. The system of national limitations on fundamental rights has also been put to this test. And interestingly, considering the topic of this chapter, mayors of larger cities had a specific role to play in the fight against the pandemic. Not because it would be more important to contain the virus in larger cities than in the countryside, but because 25 mayors of larger cities are also presidents of so-called ‘safety regions’. To explain this, some background on these safety regions is in order.

13 Hof

Den Haag, 22-005096-18, judgment of 19 December 2019, ECLI:NL:GHDHA:2019:3293. Dutch: ‘grootstedelijke problematiek’. 15 Wetsvoorstel gegevensverwerking door samenwerkingsverbanden. 14 In

2 Cities and the Dutch Constitution

25

From a legal point of view, these regions are—mandatory—partnerships between municipalities. They are charged with disaster relief and crisis management in cases where the disaster or crisis exceeds the scale of the municipality. In such cases, it is the chairman of this safety region who can exercise far-reaching powers over the entire territory of that region. The chairman of a safety region is the mayor of one of the municipalities in that region. The national government determines which mayor is assigned that role. The government usually chooses the mayor of one of the larger municipalities within the region. That is no coincidence. Mayors of larger municipalities are more likely to have some sort experience with challenges that are at least comparable to these types of disasters and crises than their colleagues from smaller municipalities. Until Covid-19, the existence of safety regions and the role of their presidents was not widely known. A lot has changed since then. Some of the 25 mayors at the head of a safety region have become familiar faces in the fight against the pandemic. Moreover, they have become the faces of the limitation of fundamental rights that has been necessary to combat the pandemic. Examples of these limitations include restrictions on freedom of demonstration, on the right to practice religion, on privacy, on property rights and on freedom of movement. Although it is more nuanced from a legal point of view, the prevailing image is that the 25 ‘super mayors’ have had a large degree of independence in determining which fundamental rights are to be restricted in which way. Of course, desperate times call for far-reaching measures. But how does the role for these mayors hold up to the Dutch system of limitation of fundamental rights in which the national legislator should be in control? The honest answer is that it both does (for the most part) and it does not (for a small part). In some cases, the national legislator had already deemed certain limitations possible. These limitations could be applied in fighting the pandemic, although sometimes with the help of some interpretative leniency. In cases where there was no such legislation, a different approach was needed. It was found in the Dutch doctrine concerning situations where adherence to one fundamental right conflicts with adherence for another. In these situations, the government needs to weigh the interests involved in order to make decision which fundamental right should prevail, and to what extent, in a specific situation. In those cases, there does not always have to be a specific piece of national legislation that empowers the government to do so. In fact, it is hardly possible to imagine there would always be legislation to cover these instances. For Covid-19 the fundamental right that conflicted with the aforementioned fundamental rights, was the fundamental right of health care. The legal reasoning behind this is sound, but the degree in which it has been applied is unprecedented. An important question for the future will be how much of a precedent will be set for post-Covid disaster relief and crisis management. Will this become a more ‘staple’ way of working around the necessity of basing a limitation of fundamental rights on a piece of national legislation? And will something of a specific position for the 25 ‘super-mayors’ remain after they have shed the mantle of president of the safety region and reassumed their role as a ‘normal’ mayor? For now, these questions remain unanswered; time will tell.

26

W. van der Woude

2.4 Carving Out a Specific Legal Position for Cities? Until then, the question that remains to be answered is whether it would be necessary to facilitate differentiation between municipalities—on the basis of their size and central role—even further. To be more specific, is there a need to carve out a specific legal—or even constitutional—position for cities vis-à-vis more rural municipalities. In a not too distant past a formal advisory committee on local government in the Netherlands—the royal commission on Dualism and local democracy—made a rather awkward suggestion for citizens’ rights to elect their mayor (who up until now is appointed by the national government upon nomination of the municipal council involved). The proposition was to: • grant citizens of the 4 largest cities (Amsterdam, Rotterdam, The Hague and Utrecht) in the Netherlands the right to elect their mayor; • grant municipalities larger than 50,000 (or maybe 100,000) inhabitants the right to call for mayoral elections by their citizens; and • grant neither citizens nor municipal councils of smaller municipalities any such rights at all.16 Considering the history of differentiating between voter rights before 1848 (as described in para 2), this reads like a ‘blast from the past’. Strikingly, the committee did not offer any substantive motivation for this differentiation leaving its readers to ponder what type of prejudice or even suspicion the committee might have harboured against inhabitants of smaller municipalities. Could it be that larger cities need a different type of government to cope with their specific issues? It is not unthinkable. However, when it comes to differentiating in fundamental rights—the right to vote counted among them—stronger motivation needs to be given. The same goes for other fundamental rights. We have seen that the city of Rotterdam tried to restrict the freedom of expression of its citizens in a way that is, at least substantively, defensible; barring street intimidation is not in itself a reprehensible goal. Having to wait for the national legislature is in that respect ‘a nuisance’. This makes the question of granting municipalities more rights to restrict the exercise of fundamental rights a viable one.17 Nevertheless, in itself that would not answer the question whether or not cities should have more powers in that respect than smaller municipalities. In 2007, the Council for Public Administration (Raad voor het Openbaar Bestuur, ROB), an advisory body of the Dutch government gave a passionate plea for more differentiation between municipalities. In the opinion of the Council, an ‘almost obsessive’ adherence to the principle of equality plays an important role in Dutch policymaking. The Council argued that many government policies are based on the view that policy implementation, and the level of facilities must be the same everywhere. This attitude, according to the Council, does not do justice to local 16 Van

der Vlies et al. 1999, pp. 403–404. that the author of this chapter would answer negatively, but that falls outside the scope of this chapter. 17 One

2 Cities and the Dutch Constitution

27

diversity and even violates the decentralization principle in Dutch constitutional law. The Council continues: Uniform arrangements disregard the “knowledge society” in which we live. In that society, knowledge develops quickly, unpredictably and not in one place. The national legislator is then unable to prescribe precisely how to act for all possible situations. The required knowledge about complex and dynamic problems is often decentralized at executive institutions and their professionals. It is then better to leave room for differentiation and to learn from different experiences.18

This rings true for the need to differentiate. But does it also mean that a specific institutional—or even constitutional—status should be created for specific types of municipalities? The Council for Public Administration tends to disagree: In its current form, the Constitution and other national legislation do not impose unacceptable restrictions on the various forms of differentiation. (…) The Council therefore does not consider it advisable to focus on revising the Constitution or the Municipalities Act with a view to differentiation.19

That does not mean that differentiation in other areas of legislation is not necessary. As the Rotterdam Act has shown, it might actually be relevant to distinguish between municipalities on the basis of differences in societal challenges they face. When it comes to housing for instance, the challenges of a growing city are far different than that of a municipality faced with population decline. From that follows that if the national legislator is willing to concern itself with the fate of large cities, it should also be willing to concern itself with the fate of the small village. And most likely, it is. That type of differentiation does not need a clear distinction between cities and rural municipalities. What it needs, is the capacity to phrase society’s problems in legal terms and attributing effective powers to municipalities affected to address them. The advantage to this approach is that it is applicable to all manner of other differences, such as differences in cultural heritage, economic development, types of crime committed and demographics other than population size.

2.5 Conclusion This chapter aims to offer a short introduction to the position of cities in Dutch law. It centred on the question whether or not a specific legal status should be considered for cities. The constitution grants a lot of leeway, both in the way municipalities organise themselves and in their substantive policymaking. Pleas to differentiate between cities and other types of municipalities based solely on that distinction have to meet high standards of motivation. According to the author of this chapter, that 18 Raad 19 Ibid.,

voor het Openbaar Bestuur 2007, p. 25. p. 45.

28

W. van der Woude

burden of proof has not been met yet. The current framework offers differentiation if needed and it is too early to tell whether the aftermath of the Covid-19 pandemic will ultimately have to lead to a re-evaluation of that point of view. The concluding remark of this chapter concerns the constitutional side of the argument. Constitutions have all sorts of functions. Especially when it comes to the interrelation of national and decentralized governments of these is to protect decentralized entities against arbitrary use of powers by the national government. When it comes to this, it cannot be said that cities need protecting. At least, not more so than any other municipality. In fact, most cities know their constitutional position and privileges. Furthermore, they know their way around the national arena well enough to fend for themselves and to lobby for changes in their powers if need be. For now, at least, a specific regime for cities in the Dutch constitution seems neither necessary nor desirable.

References Barber B R (2013) If Mayors Ruled the World: Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Barcelona en Comú (2019) Fearless Cities – A Guide to the Global Municipalist Movement. New International Publications Ltd, Oxford Glaeser E (2012) Triumph of the City – How Urban Spaces Make Us Human. Pan Macmillan, Hampshire Hemel Z (2016) De Toekomst van de Stad – Een Pleidooi voor de Metropool. Amsterdam University Press, Amsterdam Raad voor het Openbaar Bestuur (2007) De Gedifferentieerde Eenheidsstaat – Advies over Uniformiteit en Pluriformiteit in het Openbaar Bestuur. Raad voor het Openbaar Bestuur, The Hague Thorbecke J R (1843) Aantekening op de Grondwet United Nations Department of Economic and Social Affairs - Population Division (2019) World Urbanization Prospects – the 2018 Revision. United Nations, New York. https://population.un. org/wup/Publications/Files/WUP2018-Report.pdf Accessed 31 August 2020 Van der Pot C W (1933) Gemeentelijke Bestuursorganisatie 1815–1819. Tijdschrift voor Rechtsgeschiedenis XII:241–309 Van der Vlies et al (1999) Dualisme en Lokale Democratie – Rapport van de Staatscommissie Dualisme en Lokale Democratie. Samsom, Alphen aan de Rijn

Wytze van der Woude is Professor of the Law of Decentralized Government (Oppenheim Chair) at the University of Groningen. He is also head of the Division of Constitutional Affairs of the Dutch Ministry of the Interior and Kingdom Relations.

Chapter 3

Modes of Urban Autonomy—The Constitutional Characteristics of Self-governance in Amsterdam, Paris and Hamburg Gert-Jan Leenknegt

Contents 3.1 Cities and Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.1 Urban Self-government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.1.2 Amsterdam, Paris and Hamburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 The City as a Decentralized Local Authority: Amsterdam . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 Institutions and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 Relations with Other Public Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 The City as a Special Local Authority: Paris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.1 Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Institutions and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.4 Relations with Other Public Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 The City as a Federal Entity: Hamburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Constitutional Identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Institutions and Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.3 Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.4 Relations with Other Public Bodies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5 Three Cities in Constitutional Law: Some Characteristics . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.1 The Constitutional Relevance of Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.2 Integral Governance: Combining the Local and the Regional . . . . . . . . . . . . . . . . 3.5.3 Mayors of Big Cities: Legitimacy and Special Qualities . . . . . . . . . . . . . . . . . . . . 3.5.4 Powers and Differentiation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.5.5 Representation and Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.6 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

30 30 31 32 32 34 35 36 37 37 39 40 41 42 42 42 44 45 46 46 47 48 48 49 50 51

Abstract Big cities are complex, dense, diverse societies. The governing institutions of modern cities are confronted with urgent problems concerning for example traffic and transport, public safety, environment and climate, and social inequality. Taking on G.-J. Leenknegt (B) Tilburg Law School, Tilburg University, Tilburg, The Netherlands e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_3

29

30

G.-J. Leenknegt

these issues requires effective and legitimate urban government. Although many big cities face similar challenges, the constitutional and legal arrangements that create the institutions and powers of urban governments differ greatly. Three cases are presented here: Amsterdam is a ‘standard’ decentralized authority; Paris has a special legal status; Hamburg is a Land in the German federation. A brief analysis of these three cities shows that cities may be relevant and distinct from a constitutional point of view, in terms of institutions, powers, and legitimacy. Based on the analysis, I propose two hypotheses concerning the constitutional foundations of urban government. Keywords Amsterdam · Hamburg · Local autonomy · Local democracy · Paris · Special statute · Urban self-government

3.1 Cities and Constitutional Law In the twenty-first century, large cities have become major actors in European and global governance. They are at the forefront in taking on problems related to climate change, mass migration, urban living conditions, housing, and transport and mobility. They are major economic hubs, home to banks, financial institutions, and large multinational companies. At the same time, modern cities are characterized by an enormous cultural and social diversity. To manage all these complex issues, urban governments need effective instruments, and discretion to use them according to their specific needs.1 The prominent role of cities in taking on these wicked problems deserves more attention from a constitutional point of view. Constitutional law traditionally enables and limits the use of state power. It provides a framework of rules and principles determining the institutional organization and functioning of the state, including federal or decentralized structures, as well as the relations between citizens and the state. What is the role of large cities in that constitutional framework? What are the fundamental rules and principles concerning their institutional organization and functioning, including relations with their citizens? Essentially, these are questions concerning the constitutional foundations of their autonomy, or self-government.

3.1.1 Urban Self-government The notion of autonomy or self-government will serve as the focal point for my analysis of the constitutional position of cities. Article 3, para 1, of the European Charter Local of Self Government defines local self-government as: “(…) the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial part of public affairs under their own responsibility and in the interest of 1 Katz

and Bradley 2013; Barber 2014; Sassen 2001; Adams et al. 2017.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

31

the local population.” According to the second paragraph, this right should be exercised by local elected bodies. The Charter further stresses the need for “discretion”, to allow local authorities to adapt to local circumstances and conditions.2 The charter defines local self-government in general terms; it contains no specific reference to cities. But while the charter focuses on institutional relations to protect local autonomy, Pratchett provides a broader perspective on local autonomy that includes the aims thereof. He discerns three dimensions of autonomy: freedom from central interference, the freedom to effect certain outcomes, and the reflection of local identity.3 In a legal sense, the first and second element refer to institutional relations and competences; the third is interesting as it introduces an element of identity into the concept of autonomy. As I already stressed, large cities are different from nonurban communities in many ways, and much like each other in about as many ways, indicating that there is perhaps an urban identity that may be constitutionally relevant. The constitutional foundations of urban government are crucial, since constitutional law both creates and limits the power urban governments need in order to take on the challenges they face. That raises questions such as: to what extent are cities relevant entities in the (national) constitutional law? What is the constitutional status of cities? What are their powers, and how are these attributed? How is the institutional framework organized? What about local democracy? To what extent does constitutional law differentiate between cities and other territorial entities within the system? The focus of my exploration will be on four dimensions of autonomy, or selfgovernment, that seem particularly relevant from a constitutional perspective. I will focus, firstly, on the ‘constitutional identity’ of cities: the defining moments or events that explain the particular status of the city in the current constitutional framework. Secondly, I will study the governing institutions, with a particular focus on representation and democracy. Thirdly, I will analyse the administrative and regulatory (and possibly judicial) powers, both in a formal sense—the legal or constitutional basis—and in a substantive sense—the subjects that constitute the area of competence. Fourthly, I will look at constitutional or statutory relations with other public bodies.

3.1.2 Amsterdam, Paris and Hamburg The constitutional and statutory arrangements for the governance of large European cities differ greatly with respect to the executive and representative institutions, powers, and legal relations with other public entities. More importantly, the extent

2 The Charter lists some 30 elements of local autonomy; according to Article 12, the signatory parties

should consider themselves bound by at least 20 of those, at least ten of which shall be selected from among those listed in Article 12 (1). 3 Pratchett 2004, pp. 358–375.

32

G.-J. Leenknegt

to which large cities are regarded as ‘special’ in comparison to other local communities differs greatly, too. In some states, large cities are local authorities no different from any other local authority, while other states have granted certain large cities a special legal status, giving them more powers, or creating special institutions, and in some cases cities may even have constitutionally entrenched powers or other types of special constitutional arrangements. This paper will investigate three distinct types of constitutional arrangements for the governance of large cities. The aim is to discover typical characteristics of those three distinct arrangements that could serve as elements for a theory concerning the constitutional foundations of urban governance. I will analyse the constitutional and statutory position of Amsterdam, Paris, and Hamburg. Amsterdam is a decentralized local body, a ‘regular’ Dutch municipality that has the same institutions and powers as any other municipality. Apart from being mentioned in the Basic Law as the capital, it has no special status in Dutch constitutional law. Paris does have a special legal status: it is a French commune and a department at the same time, and the French law regarding territorial communities recognizes the particular role and challenges of (inter alia) Paris as a metropolitan city. Hamburg is not only a single municipality, but also a separate Land within the German federation. Therefore, it has a constitutionally entrenched legal position and powers. The analysis of these three cases will not be a comparative study in the true sense, as the aim is not to identify and explain detailed differences and similarities between their respective systems of government. That would require dealing with each of them in an exhaustive manner, including the relevant political and social contexts. It would be impossible to do so within the scope of this contribution. Instead, I will focus on the typical and most noteworthy characteristics of three distinct forms of urban government that are relevant from a constitutional point of view. Based on those findings, I will try to formulate a number of hypotheses regarding the constitutional relevance of urban government.

3.2 The City as a Decentralized Local Authority: Amsterdam 3.2.1 Constitutional Identity The Dutch Basic Law mentions the city of Amsterdam once, as the capital city where the inauguration of the King takes place.4 Apart from that, Amsterdam has no special constitutional or legal position. It is a Dutch municipality like any other. Since the constitutional reform of 1848, the Netherlands has a uniform structure of local government. All municipalities (currently 355) have the same main institutions, and 4 Article

32 of the Dutch Basic Law.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

33

the same administrative and regulatory powers. Chapter 7 of the Basic Law establishes a common institutional framework and acknowledges, in general terms, the powers of municipalities to administer and regulate their own affairs, but without defining what these are. The Municipal Act and other legislation delegate numerous specific powers to municipal authorities. In terms of institutions and powers, the system is uniform.5 Within this general framework, there is ample room for differentiation: local authorities may pursue their own goals and develop distinct policies. Most municipalities take part in various forms of cooperation with other local and regional authorities to perform executive tasks jointly. In reality, Amsterdam is different from most smaller municipalities in many ways. Historically, Amsterdam has always held a rather special position. For some centuries, Amsterdam was the most prominent city in the Netherlands. During the seventeenth century, it was the centre of a worldwide trade network, accumulating an enormous wealth, making it the most important economic and political centre of the confederal Republic of the United Netherlands, and of Europe even. The city was also a place of refuge for groups of people fleeing from religious conflicts elsewhere, such as French protestants (Huguenots)6 and Jews (one of those was the philosopher Spinoza). This caused much of the growth of Amsterdam in the sixteenth and seventeenth century.7 Already at that time, the city had a very ‘international’ and diverse population. Although its economic power declined during the eighteenth century, it became the capital city—but not the seat of government—of the newly established sovereign principality of the Netherlands in 1814. Interestingly, the overcrowded, unhealthy ‘metropolitan’ atmosphere of Amsterdam was one of the reasons the more spacious and comfortable city of The Hague was preferred as the seat of government in the seventeenth and eighteenth century. Another may have been its traditional opposition to the ruling elites of the confederal Republic of the United Netherlands. Nowadays, Amsterdam is confronted with typical metropolitan problems concerning transport and mobility, air pollution, steeply rising prices on the housing market, and mass tourism, all of which have consequences for the quality of life. The enormous cultural diversity of its population requires a careful balancing of the interests of various groups and communities within the city. A clear example of this occurred in 2018, when the national legislature enacted a law banning facecovering clothing in public buildings and public transport (generally referred to as the ‘Burka-ban’, although its scope is actually wider than religious clothing). The Amsterdam mayor stated she would not prioritize enforcing that particular law in her city, claiming that it would lead to undesirable cultural conflicts and that it was

5 Admittedly, larger municipalities have larger municipal councils. The number of council members

depends on the population size of the municipality, and may range from 9 to 45; the number of aldermen is related to the size of the council (minimum two aldermen, maximum 20% of the number of council members). Article 8 and 36 of the Municipal Act. 6 Musée protestant, The Huguenot Refuge in the United Provinces. https://www.museeprotestant. org/en/notice/le-refuge-huguenot-dans-les-provinces-unies/ Accessed 31 December 2019. 7 Mak 2016.

34

G.-J. Leenknegt

incompatible with the multicultural character8 of the city. Her reaction angered some members of Parliament who emphasized publicly that national laws were valid in Amsterdam, too.9

3.2.2 Institutions and Democracy Amsterdam, like all other Dutch municipalities, has a directly elected council. Elections are held every four years, on the basis of proportional representation. The mayor is not directly elected, but appointed by the government on the nomination of the municipal council. Effectively, the mayor is selected by a special commission within the council, in a strictly confidential procedure. A first and second candidate selected by the commission are then formally nominated by the council for appointment by the government.10 The first candidate is appointed by Royal Decree, exceptional situations aside. The mayors of Amsterdam (and other large cities) are typically experienced politicians, who have a strong network in local and national politics. The current mayor of Amsterdam is a former member of parliament, and a former leader of the Green party. After municipal elections have taken place, the council forms a college of aldermen; the office of alderman is incompatible with membership of the council. Together with the mayor, the aldermen form the executive body of the municipality. The aldermen—but not the mayor—rely on the confidence of the majority of the council in order to function.11 The mayor—not as part of the college of mayor and aldermen, but as a separate municipal institution—has important responsibilities and powers in relation to public order and safety. The Municipal Act and various other laws provide the mayor with an array of powers to tackle problems relating to public safety in general, public events, demonstrations, issues concerning illegal trafficking and possession of drugs and weapons, and preventive measures related to all kinds of activities that violate the public order. The mayor can even issue (temporary) emergency rules and decisions. There has been quite a long debate on the introduction of direct popular elections for mayors.12 In 2018, Article 131 of the Basic Law was amended to remove the obligatory appointment of the mayor by the government, now leaving it to the national legislature whether it will amend the Municipal Act to allow for a directly elected

8 Famously,

Amsterdam counts almost 180 nationalities, making it one of the most diverse cities in the world; see http://worldpopulationreview.com/world-cities/amsterdam-population/ Accessed 28 December 2019. 9 Knoops 2018; Van Vugt and Leenknegt 2018. 10 Article 61 of the Municipal Act. 11 Ibid., Article 49. 12 For an overview of discussions and arguments, see: Van Ostaaijen et al. 2017.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

35

mayor.13 No initiative has been taken yet to amend the Municipal Act with respect to the current mode of appointment. Nor the Basic Law, nor the Municipal Act contains provisions on local referenda. Local councils may decide to hold local referenda, based on the power to regulate and administer their own affairs laid down in Article 124 (1) of the Basic Law. In 2013, Amsterdam adopted the ‘Regulation concerning citizens’ initiative, popular initiative, and referendum’, which contains general rules regarding various forms of direct democracy to strengthen the legitimacy of local government.14 However, the outcome of a referendum cannot be binding on the municipal institutions, since only these institutions hold regulatory and executive powers according to the Municipal Act. The main structure of municipal government is laid down in the Basic Law and the Municipal Act, but these also allow for the creation of other municipal institutions and for the delegation of powers to them. Amsterdam has created intra-municipal structures to further decentralize administration and policy-making, both functionally and territorially.15 Within the city of Amsterdam there are seven territorially decentralized district committees (stadsdeelcommissies). These are directly elected institutions that have a general advisory function. They advise both upon request and spontaneously on all matters relevant in their respective districts.16

3.2.3 Powers According to Article 124 (1) of the Dutch Basic Law, the administrative organs of municipalities (and of provinces) may regulate and administer their own affairs. The subjects that make up these ‘own affairs’ are not listed in the Basic Law or in any other law in an exhaustive way. The Municipal Act elaborates a number of the ‘own affairs’, as it mentions some tasks and powers of the municipal institutions, most extensively of the mayor. Furthermore, Article 124 (2) states that by or pursuant to an Act of Parliament, regulations or administration may be required from municipal (and provincial) authorities. On the basis of this provision, a large number of Acts of Parliament delegate powers to municipalities. The regulatory and administrative autonomy municipalities can be defined in a negative sense: it consists of any subject concerning the general interest17 that is not exhaustively regulated by a national Act. Essentially, this means that the national legislature ultimately decides what powers 13 Staatsblad

(Official Journal) 2018, no. 493. op het burgerinitiatief, het volksinitiatief en het referendum, https://decentrale.reg elgeving.overheid.nl/cvdr/xhtmloutput/Historie/Amsterdam/461875/461875_2.html. 15 Schaap and Leenknegt 2018. 16 Gemeente Amsterdam, Stadsdeelcommissies. https://www.amsterdam.nl/bestuur-organisatie/sta dsdelen/stadsdeelcommissies/ Accessed 29 December 2019. 17 Municipal regulations may not interfere with the exclusively private interests of their citizens: Supreme Court of the Netherlands, Wilnisser Visser, judgement 13 February 1922, NJ 1922, ECLI:NL:HR:1922:AG1784, p. 473. 14 Verordening

36

G.-J. Leenknegt

municipal authorities shall have; it is not constitutionally limited in what it decides about those powers.18 As the powers of municipal authorities are laid down in a large number of Acts of Parliament, it is nearly impossible to give a complete overview of the current powers of Dutch municipalities. Some examples may illustrate this. Currently, municipalities are responsible for three big social domains: labour and income, youth services, and social wellbeing and care—all within the confinements of the national legislation that delegates these powers to them. Some other main areas of competence include spatial planning, environment, education (housing facilities), and sports and cultural matters. As we noted above, mayors have extensive powers relating to the public order and public security. The fluid contours of municipal powers sometimes lead to conflicts between local authorities and national politics. Several Dutch cities have introduced environmental zones, banning certain types of vehicles from their city centres. In May 2019, the city of Amsterdam announced a rather ambitious plan to ban all vehicles with combustion engines by 2030, and older diesel engines by 2020.19 This caused some members of the national parliament to claim, rather annoyed, that such regulations were not up to the city council of Amsterdam, but that the national legislature decides on these issues. In the end that may be correct, but as long as the national legislator does not act, the autonomous powers of municipal councils allow them to decide on the matter, within the framework of existing national (and provincial) law. This is different only when the national legislature refrains from regulating a matter with the explicit aim to leave the matter unregulated.20

3.2.4 Relations with Other Public Bodies Article 132 of the Basic Law provides for a mechanism of administrative supervision. The government may, by Royal Decree, quash any decision of municipal authorities on the grounds that it conflicts with the law or the public interest. It is also the constitutional basis for a legal arrangement concerning neglect of duty, to be found in the Municipal Act. This relates to situations when a local institution does not perform its legal obligations; other regional or national institutions, specified by the relevant law, must then act instead. There are no constitutional or legal instruments for municipal authorities to be structurally involved in decision making at the national level. Legally and structurally, the Dutch decentralization framework seems ‘top-down’ oriented, but in 18 Van

der Woude 2020. Schone Lucht, https://www.amsterdam.nl/bestuur-organisatie/volg-beleid/duurzaamh eid-energie/schone-lucht/ Accessed 31 December 2019. Bold initiatives like these have earned Amsterdam the nickname ‘Republic of Amsterdam’. 20 An example of this was the removal of the general prohibition on brothels in the Netherlands. See on this issue: Daalder 2007. 19 Actieplan

3 Modes of Urban Autonomy—The Constitutional Characteristics …

37

reality there is a strong interdependence of national, regional/provincial and municipal authorities. In practice, governments of big cities (including Amsterdam) have strong networks in national politics, through which they can have a considerable influence on national policy and legislation. In addition, maybe more importantly, municipalities are indispensable agents for the realization of national policy goals, and for the implementation of national legislation. The Association of Netherlands Municipalities (Vereniging van Nederlandse Gemeenten—VNG) which is a platform for cooperation, knowledge sharing, and lobbying for all Dutch municipalities, is an important intermediary between national and local governments. It too is confronted with the divergent interests of big cities like Amsterdam. The activities of municipalities are financed partly from municipal taxes, and partly from national funding. National funding makes up more than half of their resources. All municipalities receive a general dotation from the national Municipal Fund, based on a number of criteria such as population size and the size of their territory. Furthermore, they receive specific payments to perform tasks delegated to them by national authorities. Local taxes, charges, fees and other revenues make up the rest of their resources (about 16% of their total resources).21 Municipalities can only levy taxes based on national legislation; within that framework, they may decide on tariffs and modes of collection. In practice, Dutch municipalities are highly dependent on national funding. In recent years, many municipalities are experiencing financial shortages due to insufficient funding of delegated tasks in the social domain.22

3.3 The City as a Special Local Authority: Paris 3.3.1 Constitutional Identity Like the Netherlands, France is a unitary decentralized state. The French constitution recognizes regions, departments, and communes as spheres of sub-national government. Compared to other European countries, local government France is small scale. France has over 36,000 communes; many of those are very small, with typically only several hundred inhabitants, while some are large cities. Obviously, there are enormous differences between small rural communes and metropolitan cities, but essentially, all these communities are governed in the same way, and have the same institutions and the same powers. An important consequence of the small scale of local government is that there are many intercommunal entities, to provide services 21 Rijksoverheid, Gemeentelijke belastingen. https://www.rijksoverheid.nl/onderwerpen/financ ien-gemeenten-en-provincies/belastinginkomsten-en-specifieke-uitkeringen-gemeenten-en-provin cies/gemeentelijke-belastingen Accessed 30 December 2019. 22 See e.g. Bekkers 2019. Questions about this were asked in the Lower House: Tweede Kamer der Staten-Generaal (2019) Vragen gesteld door de leden der Kamer, met de daarop door de regering gegeven antwoorden. https://www.tweedekamer.nl/kamerstukken/kamervragen/detail?id=2019D3 9086 Accessed 30 December 2019.

38

G.-J. Leenknegt

on a larger scale.23 Another consequence is the political and legal recognition of the special position of a number of metropolitan cities in France, one of which is Paris. Ever since the French revolution, Paris has had a special position in the French administrative structure. For most of that period, that actually meant the city had less autonomy than even the smallest commune. With the exception of a short period of a few months, Paris did not have a mayor between 1794 and 1977; there was only an appointed council with little powers. Paris was effectively governed by the prefect of the department of the Seine (the department of Paris after 1968),24 an officer appointed by and acting on behalf of the ministry of the interior. In other words: Paris was governed by a national agent, not by locally elected representatives like all other communes. The main reason for this was the ‘revolutionary temper’ of Paris. The 1789 French Revolution started in Paris, as well as the July Revolution (1830), the February Revolution (1848), and the Commune of 1871, when the city took sides against the French government after the French-German war. Its ‘track record’ as a city that rises up against the authorities, while at the same time having an important administrative and symbolic function as the capital of the French nation, were reasons to keep it under government control.25 That changed in 1975 when president Giscard d’Estaing presented a bill to reestablish the office of mayor in Paris.26 Since November 1976, the mayor of Paris is elected by the members of the council. Another significant step was the enactment of the ‘Loi PML’ in 1982, which introduced special provisions for the governance of the three largest cities in France: Paris, Marseille and Lyon (hence the abbreviation). It strengthened the role of the arrondissements (intra-communal administrative subdivisions)27 in the government of those cities. In the same year, an act was adopted that decentralized more powers to territorial entities, and abolished the a priori administrative supervision of communes by the prefect.28 Gradually more powers were decentralized. The reform act of 200329 strengthened the role of the regions and introduced the right to organize a local referendum. Then in 2017, the so-called Statute of Paris30 brought about more institutional changes. The commune of Paris and the department of Paris merged into one single entity: the Ville de Paris. The main aim of this institutional reform was to end the complexity 23 Hertzog

2018. the city was governed by the Prefect of the Seine department (from 1968 the Prefect of the Paris department), together with the Prefect of Police. See: Kuhlmann 2006, pp. 67–86. The famous constructor of the Paris boulevards, Georges-Eugène Haussmann, was appointed Prefect of the Seine in 1853. 25 Ducoudray 1989, p. 271. 26 Loi du 31 décembre 1975. 27 In Marseille, these subdivisions are called ‘secteurs’. 28 Loi n° 82-213 du 2 mars 1982 relative aux droits et libertés des communes, des départements et des regions. This law also created the regions as an additional layer of decentralization throughout France. 29 Loi constitutionnelle n° 2003-276 du 28 mars 2003 relative à l’organisation décentralisée de la République (known as ‘Acte II de la décentralization’). 30 Loi n° 2017-257 du 28 février 2017 relative au statut de Paris et à l’aménagement métropolitain. 24 Originally

3 Modes of Urban Autonomy—The Constitutional Characteristics …

39

of the power division between various competent authorities in the city of Paris. It also further strengthened the role of the Paris arrondissements, particularly in urban planning. The reforms of regional and local government are still continuing. Recently, a proposal was presented by the French government to amend Article 72 of the Constitution to allow for explicit differentiation between local or regional entities, and to amend several organic laws to further enhance direct democracy.31

3.3.2 Institutions and Democracy All French communes have a directly elected council, which in turn elects a mayor. This is somewhat different in Paris: citizens elect the members of the council of their arrondissement; each of those councils elects a president. The council of the Ville de Paris consist of the members of the councils of each of the arrondissements that individually received the largest number of votes (about a third of the members of each of those councils). This means that the 163 members of the council of the Ville de Paris serve a double mandate: they are also members of the council of their arrondissements. The council of the Ville then elects the mayor of Paris, by an absolute majority, in two rounds, or a relative majority in case a third round is needed.32 This ‘stepped’ method of electing the Paris mayor has received some criticism. It functions somewhat like the presidential elections in the United States, as popular votes are cast in the arrondissements; the council of the Ville then acts as an electoral college. A candidate must win a majority in the council of the Ville, but that does not necessarily mean the winner will enjoy the support of a majority of the original voters. In 2001, socialist candidate Bertrand Delanoë won the election in the council, while the majority of the population of Paris had voted for right wing parties in the council elections.33 Since the merger of the municipality of Paris and the Paris department, there are no separate departmental institutions; the institutions of the Ville de Paris execute municipal and departmental competences alike. Within all three levels of decentralized government in France, representative democracy is complemented with forms of direct democracy. The elected councils of all communes, departments, and regions may submit any issue that falls

31 Projet de loi constitutionnelle pour un renouveau de la vie démocratique (JUSX1915618L), Article 10. The text of the proposed law is available on http://www.assemblee-nationale.fr/15/projets/pl2 203.asp. 32 Code général des collectivités territoriales (CGCT), Article L2121-1; L2122-4 ff. Municipal elections will take place in 2020; a mayor will also be elected by the new council of the Ville: https://www.linternaute.com/actualite/politique/1187526-comment-le-maire-de-paris-est-il-elu/. 33 Jeanne 2009 (para 2 in particular).

40

G.-J. Leenknegt

within their competence to a referendum.34 One fifth of the registered voters in every commune may also request the council to consider an issue within the scope of its competences.35

3.3.3 Powers The French legislation regarding the powers of communes and departments is highly complex and technical. The Code général des collectivités territoriales (CGCT) lays out the general framework for all decentralized structures in France (municipalities, departments, and regions), with special provisions for Paris, and some for Lyon and Marseille, and for various other departments and communes, such as the overseas departments. In 2017, the Statute of Paris mentioned above amended the CGCT to provide for the special position of Paris. The CGCT list the powers of departments36 and of the communes.37 Departments are responsible for social welfare for families, elderly people, disabled persons, for secondary schools, and support to rural municipalities. The competences of communes include primary education, town planning, local roads, public transport, social support for families and youth, municipal police, housing, drinking water and sanitation, waste, culture, and sports. The powers of departments and communes are meant to be distinct and non-overlapping, but as the Ville de Paris is both a commune and a department, it disposes of all those powers. According to the Act on Urban Planning (Code de l’Urbanisme), communes may enact a Local Urbanisation Plan (PLU) for local planning and zoning. Furthermore, it provides for special procedures to take control over certain projects and activities to protect local living conditions, the environment, or the particular character of the commune or a separate neighbourhood.38 The law applies to all communes; Paris has no special powers or position in this regard. In one particular respect the powers of the mayor of Paris are different from those of other mayors. In Paris, the powers related to police are shared between the mayor and the Prefect of Police, who acts on behalf of the national government. This seems to be a remnant of the situation before 1976, when Paris was effectively governed by the departmental prefect, for reasons discussed supra. Since 2017, more regular police tasks related to local affairs were transferred from the Prefect to the mayor, 34 CGCT, Article LO1112-1. The arrondissements of Paris are not among the ‘collectivités territoriales’ to which the provision applies (see Article 72 of the Constitution). Only the council of the Ville de Paris has the power to organize a referendum. 35 CGCT, Article L1112-15 ff. Within departments and regions, one tenth of the registered number of voters suffices. 36 CGCT, Article L3111-1 ff. 37 CGCT, Article L2221-1 ff. 38 Additional powers regarding urban living conditions are laid down in the Loi n° 2014-173 du 21 février 2014 de programmation pour la ville et la cohésion urbaine.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

41

such as traffic and parking issues, ruined buildings, bathing and funerals.39 The Prefect in turn now has greater powers relating to issues of security and terrorism; he is responsible for security issues on all three Paris airports.40 French communes have a general competence to decide on local affairs, besides those explicitly attributed to them by Act of Parliament.41 Within the boundaries of national legislation, they have discretion to act in the interest of the local community. Departments do not have such a general competence, but only the competences explicitly attributed to them. In practice, the rather complex division of competences between communes, other territorial authorities, and the national legislature does lead to questions and problems. In August 2019 for example, several French mayors decided to ban the use of weed killers containing glyphosate, which is suspected of causing cancer, in the interest of the health of their inhabitants. The prefects of the concerned regions, acting as supervisors on behalf of the national government, stated that the mayors had no competence in these matters, and have asked administrative law courts to annihilate their decisions. This prompted the national legislature to consider national legislation on the topic.42

3.3.4 Relations with Other Public Bodies According to the French Constitution, Article 72 (5) and (6), there shall be no control from one territorial body over another. Communes, departments, and regions enjoy distinct powers and cannot interfere with each other’s affairs. Nevertheless, a structure of administrative supervision ensures local and regional compliance with national laws. Each commune or department, including Paris, contains an element of deconcentration: the mayor and the prefect of the department are also officers on behalf of the state to perform certain administrative tasks. They have a dual function: they act both as a local or regional executive, and as a representative of the national administration, under the direction of the minister of the interior. In this way, a form of administrative supervision of the national government on all territorial collectivities is created, by granting special powers to the governors of each of those collectivities themselves. In this way, the spheres of competence of communes, departments, and regions remain distinct, as Article 72 (5) and (6) of the Constitution requires. French communes and departments receive funding for the execution of the tasks given to them by the national legislature. Especially communes levy numerous taxes of their own, but the total revenue of those taxes is small compared to national funding.43 39 This transfer of powers in practice represents the responsibility over 2100 agents; Articles 21–26 of the Loi no 2017-257 du 28 février 2017 relative au statut de Paris et à l’aménagement urbain. 40 CGCT, Article L2211-1 ff; 2512-13ff. 41 Article 72 of the French Constitution; CGCT, Article L2121-29. 42 Allain and Crellin 2019. 43 For an overview, see: https://www.collectivites-locales.gouv.fr/fiscalite-locale.

42

G.-J. Leenknegt

3.4 The City as a Federal Entity: Hamburg 3.4.1 Constitutional Identity Hamburg is one of the sixteen Lands in the German federation, and at the same time it is a single municipality. The position of Hamburg in the German federation has deep historical roots. Since the twelfth century, is has been a sovereign city-state, and a prominent member of the Hanseatic League. It resisted territorial ambitions of the Prussian state during the sixteenth and seventeenth century, and practically remained a sovereign state until the twentieth century. Between 1814 and 1866 it was a member of the German Confederation, enjoying full sovereignty. When the German Confederation fell apart in 1866, Hamburg became a member of the North German Confederation (1866–1871), the German Empire (1871–1918), and the Weimar Republic (1919–1933). All this time, Hamburg maintained its selfruling status as a city-state. Under the Nazi regime, the autonomous position of Hamburg was abolished by means of a Reichsgesetz, and it was incorporated in the centrally administered Reich. In 1949 it became part of the federal republic of WestGermany, losing its full sovereignty as a city-state, but retaining a constitutionally protected autonomous status as a federal Land. It is now one of three city-states within the German federation, with Berlin and Bremen. Hamburg therefore has constitutionally entrenched regulatory powers, like all German Lands, and the government of Hamburg is represented in the Bundesrat, the German federal senate. It has its own Constitution, which determines the institutional framework for its governance. The governing institutions of Hamburg serve both as Land and municipal institutions; there is no separation between the Land and the municipality in terms of institutions and powers.44 This gives the governing institutions of Hamburg a very wide range of tasks and powers, compared to other Land or municipal governments.

3.4.2 Institutions and Democracy The Hamburg State Parliament (Bürgerschaft) is the legislature of Hamburg.45 Its 121 deputies are elected every five years by Hamburg residents of German citizenship, aged sixteen years and older. The responsibilities of the parliament include lawmaking as well as the election of the First Mayor of Hamburg. The First Mayor is elected for a five-year term. The mayor of the city functions as the minister-president of the Land Hamburg, a position that guarantees him the membership of the Federal 44 Article 3 (1) of the Constitution of Hamburg (Verfassung der Freien und Hansestadt Hamburg). This constitutional structure is similar to that of the city of Berlin; Bremen consist of two municipalities, and therefore has two separate layers of governance (the Land and the municipalities). 45 Article 6 ff of the Constitution of Hamburg.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

43

Council (the German federal senate). The First Mayor appoints a substitute, the Second Mayor; he also appoints the members of the Senate, the executive body, over which he presides. Each of the senators heads one of the ministries (Behörden). Every senator has a deputy, a civil servant called State Councillor (Staatsrat).46 Like all German Lands, Hamburg has its own judicial branch, consisting of general courts and specialized courts. Within the German federation, Land courts serve as lower courts and appellate courts, while federal courts are the final appeals courts. The Constitutional Court (Hamburgisches Verfassungsgericht), is the highest Land court. It is responsible for the interpretation of the Constitution of the Free and Hanseatic City of Hamburg and the Basic Law for the Federal Republic of Germany.47 Under the German federal Constitution, the organization of local government is a responsibility of the Lands, within the confinements of Article 28 of the Federal Constitution.48 Hamburg is divided into seven districts (Bezirke). Each district has its own parliament (Bezirksversammlung) consisting of 45, 51 or 57 representatives, who have powers delegated to them by the Senate to decide on issues within the districts. Elections for district parliaments take place parallel to the elections to of the State Parliament, and are open to district residents with European citizenship aged 18 years or older. Districts have administrative departments, headed by a District Head of Department (Bezirkamtsleiter), who executes the decisions of the district parliament. An interesting phenomenon from a democratic point of view are the Boards of Deputies (Deputationen).49 These are forums consisting of fifteen members each, elected by the Hamburg parliament to complement each of the ministries.50 Any registered voter is eligible for membership. The boards have an advisory and deliberative role in decision-making with regard to general policy for each of the ministries.51 The responsible senator (member of the Hamburg government) presides over each board. Additionally, there are various elements of direct democracy. The Constitution of Hamburg mentions a variety of instruments: petitions; three consecutive instruments to put an issue or a specific proposal on the political agenda, and to claim and decide a referendum on it (Volksinitiative, Volksbegehren, Volksentscheid); a referendum on proposals or decisions taken by the Hamburg parliament (Fakultatives Referendum).

46 Ibid.,

Articles 33–47. Articles 62–65. 48 According to para 1 of Article 28, in each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. The second paragraph adds that municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. 49 Article 56 of the Constitution of Hamburg on participatory democracy (in German: Mitwirkung des Volkes an der Verwaltung). 50 See Hamburg, Mitwirkung, Die Deputation. https://www.hamburg.de/bsb/deputation/ Accessed 31 December 2019. 51 Bernzen 1980; see also Hamburg, Mitwirkung, Die Deputation. https://www.hamburg.de/bsb/dep utation/ Accessed 31 December 2019. 47 Ibid.,

44

G.-J. Leenknegt

Although some subjects are excluded from the use of these instruments, they are applied rather frequently.52

3.4.3 Powers According to the German federal Constitution, the Lands have all legislative powers not attributed to the federation—the so-called residual powers. The Constitution further lists a number of concurrent legislative powers, to be used by the Lands as long as the federation does not. This means the legislative powers of the Lands are entrenched in the federal constitution: any change in the relevant provisions requires an explicit constitutional amendment. This automatically involves the Federal Council (federal senate), which consists of delegations of the Land governments. An amendment requires a 2/3 majority in both houses of the federal parliament to be adopted. Since the late 1990’s, the provisions concerning the division of legislative powers between the federation and the Lands in the federal constitution have been amended several times in order to create a clearer power division. Especially in the 1980’s and 1990’s, the power division proved complex, creating what was called Politikverflechtung: an intricate mutual dependence in many areas of competence of federal and Land legislatures. The current division of powers aims to guarantee clearer, more autonomous spheres of competence for both the federation and the Lands. The organization of local government is a responsibility of the Lands, within the framework of the federal Basic Law. Article 28 of the Basic Law grants municipalities a general competence to regulate their own affairs, and expresses the principle of local self-government, which specifically includes financial autonomy. This provision does not apply to cities only, of course, but to all municipalities.53 From a constitutional point of view, Hamburg seems to be no different from any of the other Lands, nor is it different from any other municipality. What makes Hamburg special in terms of constitutional powers is that it holds both the residual legislative powers as a Land, and the general competence to regulate its own affairs as a municipality. Additionally, it is—rather logically—one of the so-called kreisfreie cities in Germany, meaning that there is no separate regional level of government between the Land Hamburg and the municipality of Hamburg.54 These combined characteristics make Hamburg different from all other German municipalities and

52 Hamburg, Allgemeine Infos, Initiative, Begehren, Entscheid und Bürgerschaftsreferendum. https://www.hamburg.de/volksabstimmungen/54020/volksabstimmungen/#anker_0 Accessed 31 December 2019 (overview can be downloaded there). 53 The general omnipotence of local authorities within their territory was confirmed by the Federal Constitutional Court in BverfGE 21, 117, judgement of 17 January 1967 (128 ff) and BverfGE 79, 127, judgement of 23 November 1988 (146). See also Kramer 2005, p. 88. 54 On these kreisfreie cities, see: Hameister and Tesch-Römer 2017.

3 Modes of Urban Autonomy—The Constitutional Characteristics …

45

cities (with the exception of Berlin55 ): it is the single competent authority for local, regional, and Land affairs within its territory. Interestingly, all German Lands, including Hamburg, have treaty making power within the limits of the areas of their legislative competences; proposed treaties need the consent of the federal government. Vice versa, when the federation government concludes a treaty involving the interests of one or more Lands, these must be consulted.56

3.4.4 Relations with Other Public Bodies Regular German municipalities have no direct representation at the federal level. Their influence in federal politics is exerted through lobbying organizations, such as the German Conference of Municipal Authorities, and the Association of German Cities. But as Hamburg is a Land, it is represented in the Federal Council which consists of members of all the Land governments. Members of the Hamburg Senate therefore also take part in lawmaking at the federal level. With the obvious exceptions of Berlin and Bremen, no other German city is guaranteed seats in the Federal Council. Every member of the Federal Council has the right to initiate new federal bills. Compared to other Lands, Hamburg has a relatively small delegation in the Federal Council: it has three members, out of 69 members in total. The largest German Lands have six members. The Lands within the German federation enjoy constitutionally protected autonomy. That autonomy is not unlimited though: if a Land fails to comply with its obligations under the Basic Law or other federal laws, the federal government may take the necessary steps to compel the Land to comply with its duties; its decision needs the consent of the Federal Council.57 The financial relations between the federation and the Lands are laid down in Chapter X of the federal Basic Law. The principle seems rather clear: the federation and the Lands are each responsible for their own expenditures, resulting from their constitutional responsibilities. When Lands act on federal commission, the federation shall finance the expenditures. The Basic Law also determines who receives the revenues of various taxes; some revenues are to be shared. The details of this constitutional arrangement are elaborated in federal tax laws. The Basic Law also determines that the Lands shall transfer a share of the revenues of income tax and turnover tax to the municipalities. This is irrelevant for Hamburg, where Land and municipality coincide; the transfers do not take place here.58

55 Bremen

is the third German city-state; it consists of two municipalities (Bremen and Bremerhaven). 56 Article 32 (2) and (3) of the Basic Law. 57 Ibid., Article 37. 58 Ibid., Articles 106 (5) and (5a).

46

G.-J. Leenknegt

3.5 Three Cities in Constitutional Law: Some Characteristics The three cases of Amsterdam, Paris and Hamburg, which represent three types of legal arrangements for local autonomy, demonstrate that there are few distinct legal or constitutional arrangements for urban government. Their governance is mostly based on ‘standard’ legal arrangements, applicable to other local authorities in the same manner. This is most clearly the case for Amsterdam: the applicable law contains no special provisions. The city enjoys autonomy within the framework of generally applicable national legislation, which allows for some differentiation, but occasionally also to leads to tensions between local policy and national legislation. What makes the legal arrangements for Paris and Hamburg distinct is mainly the combination of two separate legal arrangements—one for local government ad one for departmental or Land government respectively—into one single legal structure for metropolitan governance. In Paris, this was done only recently, as an explicit recognition of its special position as a metropolitan city; in the case of Hamburg, it was the consequence of the constitutional recognition of its long history as a sovereign city-state. In both cases, this merger of legal arrangements is also expressed on an institutional level: the relevant representative and executive institutions have been merged into single institutions, having broader regulatory and administrative powers as a consequence. Interestingly, the functioning of the Ville de Paris is also based on some additional provisions: the ‘stepped’ elections of de Paris council and mayor, and the strengthening of the role of the arrondissements. All three cases demonstrate that territorial subdivisions within the cities— districts, neighbourhoods, arrondissements—are involved in urban governance. These subdivisions have representative and executive institutions of their own, and have certain limited powers to regulate and administer their own affairs. In terms of governance, big cities are multi-layered entities, stretching beyond the local—in two of the cases discussed, both upward and downward. Lastly, all three cases show that urban governance involves various modes of direct democracy and citizens’ participation. It must be noted that they are no different from other local authorities, but it does seem to fit the functioning of complex urban societies well. In the following sections, I will elaborate on these elements in order to discuss their potential value as elements for a constitutional theory of urban governance.

3.5.1 The Constitutional Relevance of Cities Amsterdam, Paris, and Hamburg share a long history of strong autonomy: they were powerful self-governing cities and administrative and economic hubs during the early modern period. The fully autonomous status of Hamburg in particular ended only rather recently, shortly after the Second World War. Paris seems a bit different in that respect, as it enjoyed very little autonomy during most of the nineteenth and twentieth

3 Modes of Urban Autonomy—The Constitutional Characteristics …

47

centuries. Until the mid-1970ies, its status bears some resemblance to that of a federal district, governed directly by national institutions. But the reason for that was exactly that it was the place where several revolutions against national governments were initiated. Paris had a reputation for anarchy—autonomy taken to the extreme. Constitutional law does recognize basic principles such as decentralization (or devolution), subsidiarity, and self-government. It seems strange that it does not explicitly recognize the distinct position and autonomy of—at least some—cities. Especially big cities are often distinct from other local or regional authorities, both from a historical perspective, and from the perspective of their current role in local, regional, national and global governance. This is clearly demonstrated by all three cases presented above. That should come as no surprise, as historically cities have been the economic and political hubs of Western societies until the establishment of the European nation-states during the eighteenth and nineteenth century. Moreover, modern metropolitan cities are socially, economically, and culturally very diverse and complex societies, inhabited by many different subgroups with competing interests. In addition, they face typical urban issues concerning transport and mobility, air pollution, mass tourism, social inequality, and poor living conditions, and limited physical space to do tackle those problems. That would justify distinct constitutional arrangements regarding their governing institutions, powers, and democracy.

3.5.2 Integral Governance: Combining the Local and the Regional The cities I have discussed do not seem to fit a standard, multi-layered, decentralized structure of overlapping but distinct national, regional and local spheres. The size and diversity of their populations, and the cultural and socio-economic characteristics of urban societies, make them more like ‘nation states in a nutshell’—in the case of Hamburg this is almost literally true. Effectively governing a large city then requires the combined responsibilities of local and regional (or even national) authorities, to create a broad package of powers to allow them to effectively deal with typically urban issues. This is particularly true for Paris, which is both a commune and a department, and for Hamburg, which is a single municipality and a Land. In both cities, local and regional institutions have merged. Amsterdam, on the other hand, does not have any responsibilities or powers belonging to the regional (provincial) level. At the same time, all three cases demonstrate forms of territorial or functional decentralization within the city, to be able to involve citizens in policymaking and decision making more effectively on a smaller scale. With the creation of the Ville de Paris, the role of the arrondissements of Paris has been strengthened; the city council is effectively elected in the arrondissements, as the top candidates in those elections constitute the council of the Ville de Paris. Those representatives even serve a double mandate. Amsterdam has directly elected district committees that

48

G.-J. Leenknegt

have a general advisory function, and Hamburg also has administrative structures with representative bodies at the district level. In terms of decentralization, big cities are not single local authorities; rather they may be seen as multi-level ‘columns’, cutting through various layers of decentralization, reaching beyond the local level in both directions. Legal or constitutional arrangements that enable and facilitate the combination of local and regional government by merging institutions and powers, and at the same time provide a basis for territorial or functional decentralization within local authorities, could be a promising way to strengthen urban governance.

3.5.3 Mayors of Big Cities: Legitimacy and Special Qualities All three mayors derive their legitimacy from the elected city council. They are indirectly elected. In Amsterdam this may not be the case in a formal sense, but practically two candidates are selected by a committee within the council; the government then appoints the number one candidate. Generally, that candidate will not be an elected member of the council, but an experienced politician from outside the local political arena. The same is true for Hamburg. In Paris, the mayor is elected from the members of the city council. These methods of (s)election are no different from other mayors in each of the three countries—with the exception of the ‘stepped’ election mechanism involving the arrondissements for the council of Paris. In that sense, there is nothing special about big city mayors. The mayors of the three cities discussed here have the same powers as other mayors in each of the countries. The fact that the Hamburg mayor does have a formal position to act on a national (federal) and a global level, is a consequence of the fact that he is also the prime minister of the Land government, which automatically guarantees him the membership of the German federal senate. The prominent role of mayors in the governance of big cities may require special qualifications and political experience, which would favour an element of selection rather than popular election in the mode of appointment. At the same time, legitimacy is important given the great influence (if not powers) of mayors of big cities in serving the interests of the city government on a national and global level.

3.5.4 Powers and Differentiation As I already mentioned, big cities experience typical urban issues in relation to, for instance, environment, transport and mobility, housing, social inequality, and public safety. The regulatory and administrative powers of city government should enable them to tackle those issues effectively. Both Paris and Hamburg have more regulatory powers than most other local authorities in France and Germany respectively. In both cases, this is mainly a consequence of the merging of the local level with the

3 Modes of Urban Autonomy—The Constitutional Characteristics …

49

departmental or Land level. This merger automatically provides them with a broader package of competences, and with the necessary discretion to use them. There seem to be two advantages to this way of broadening the powers of big cities. Firstly, it practically ‘eliminates’ a level of higher laws in the hierarchy of norms, which reduces the regulatory framework that limits the powers of city governments and legislatures. Secondly, it means that special constitutional arrangements or complex legislation creating exceptional powers for a specific city (or a number of cities) can be largely avoided. National laws remain generally applicable; no exceptional regime is created for specific cities. Of course, in the case of Paris the national law concerning decentralized bodies does contain additional specific provisions for (inter alia) Paris that do deviate from the generally applicable regime, mostly in relation to the role of the arrondissements, and the powers of the mayor concerning public order and safety. Generally, however, the essence of the particular legal arrangement is rather simply the merger of the commune of Paris and the department of Paris. Amsterdam has not benefitted from such a merger of local and regional levels, nor does it have any additional exceptional powers. In terms of regulatory and administrative powers, it is a regular Dutch municipality like any other. At least theoretically, this limits its autonomy compared with Paris and Hamburg. On the other hand, Dutch municipalities already have a rather broad range of powers in important socio-economic areas and with respect to public safety and public order. For issues that need to be dealt with on a larger scale, such as transport or security, intercommunal entities (gemeenschappelijke regelingen) may be established. Nonetheless, every now and then regulatory initiatives of the Amsterdam city government seem to thwart national politics, and vice versa. Examples are the Amsterdam initiative to ban combustion engines as of 2030, and the national law banning face-covering clothing, mentioned above.

3.5.5 Representation and Participation Big cities are large, complex, diverse communities, consisting of numerous subgroups with many different interests. Due to the character and scale of urban government, there is possibly a big gap between citizens and the governing institutions. All three cases illustrate that various elements of representative democracy, direct democracy, and citizens’ participation are employed to bridge that gap. All three cities have chosen to create representative institutions on a smaller scale in boroughs or districts. Various instruments allow citizens to be involved in decisionmaking. Hamburg demonstrates this most clearly with its boards of deputies, and several instruments of direct democracy. These are used rather frequently (although not always successfully), which means there is open political debate on many social issues. Its status as a Land in the German federation allows it to decide on the creation of these instruments fully autonomously, within the framework of the federal Basic Law. Amsterdam employs similar instruments, based on its general competence to regulate its own internal affairs, attributed to all municipalities by the Dutch Basic

50

G.-J. Leenknegt

Law. Possibly, effective governance of urban societies requires more frequent and diverse forms of participation of citizens in decision-making. These instruments strengthen the legitimacy of urban government and ensure that various subgroups and their particular interests are represented.

3.6 Conclusions Based on the cases studies here, we should conclude that the constitutional law of the Netherlands, France, and Germany provides no specific arrangements for big cities as such. The special position of the Ville de Paris is the result of a combination of existing legal arrangements, with some additional provisions; Hamburg, in a somewhat similar fashion, is both an ‘ordinary’ Land and a ‘standard’ municipality in strictly legal terms. Amsterdam is a Dutch municipality like any other. This may seem remarkable: a single, national, general structure of constitutional or legal arrangements for all local government does not reflect the reality of the increasingly distinct role and position of big cities. What could a constitutional framework that does take big cities serious look like? I conclude by presenting two hypotheses based on our analysis. The first hypothesis states: combining legal and constitutional arrangements for local and regional governance would be a suitable and relatively simple way to strengthen the autonomy of big cities. A possible—and relatively easy—way to create greater autonomy for cities would be to legally or constitutionally combine the local and regional levels of government for big cities. Governing institutions and powers are merged, eliminating the need for extensive special legal structures and arrangements. Furthermore, it automatically eliminates a level of higher legal norms, providing more regulatory autonomy. This approach would deserve further investigation and development. Perhaps there are other positive sides to this arrangement, such as more financial and fiscal autonomy; there may also be negative effects. The second hypothesis states: legal or constitutional arrangements creating decentralized democratic structures within big cities would strengthen the legitimacy of the governance of complex and diverse urban societies. Greater powers for city governments would raise question regarding their legitimacy. Urban societies are very diverse, if not fragmented, in terms of socio-economic status, cultural background, nationality, religion, and numerous other characteristics. The legitimacy of decision-making in complex urban societies could be strengthened by various forms of representative and direct democracy and citizens’ participation on multiple levels. This includes the ‘sub-local’ level: city districts—arrondissements, boroughs, neighbourhoods—are not mere administrative entities; they serve as the basic level of urban democracy. Many issues remain that have not been mentioned here. Urban citizenship, for example, seems a crucial notion from a constitutional point of view. Since participation and various forms of democracy are fundamental to the self-government of cities, it is crucial to develop an understanding of urban citizenship. Are all residents

3 Modes of Urban Autonomy—The Constitutional Characteristics …

51

of a city automatically citizens? Does nationality matter? Are there other criteria? And to what extent can differentiation between cities and other local authorities lead to differences between urban and non-urban citizens? What if fundamental rights are involved? There are probably many more issues to be explored. This brief study of three European cities shows that there is a relevant urban dimension to constitutional law—or, if you prefer, a constitutional dimension to urban governance. The growing importance of big cities in local, national, and global governance will make questions related to their constitutional position ever more urgent.

References Adams M, Hirsch Ballin E M H, Leenknegt G, Colombo C, Groenleer M L P (2017) Constitutionalisme in de eeuw van de stad. Over stadsrecht en rechtsstaat. Nederlands Juristenblad 2728–2739 Allain P-H, Crellin F (2019) French mayors ban glyphosate weedkiller, defying government. Reuters, 22 August 2019. https://www.reuters.com/article/us-france-agriculture-glyphosate/fre nch-mayors-ban-glyphosate-weedkiller-defying-government-idUSKCN1VC2C1 Accessed 31 December 2019 Barber B R (2014) If Mayors Ruled the World. Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Bekkers H (2019) Gemeenten korten massaal op sociaal domein. Binnenlands Bestuur 12 September. https://www.binnenlandsbestuur.nl/financien/nieuws/gemeenten-korten-massaal-opsociaal-domein.10773129.lynkx Accessed 27 December 2019 Bernzen U (1980) Die Deputationen. Bürgerbeteiligung an der Verwaltung. Landeszentrale für politische Bildung, Hamburg Daalder A L (2007) Prostitutie in Nederland na opheffing van het bordeelverbod. WODCreport no. 249, The Hague. https://www.wodc.nl/binaries/ob249-volledige-tekst_tcm28-68257. pdf Accessed 30 December 2019 Ducoudray É (1989) Commune de Paris/département de Paris (rev. edn. 2005). In: Soboul A (ed) Dictionnaire historique de la Révolution française. Quadrige, Paris Hameister N, Tesch-Römer C (2017) Landkreise und kreisfreie Städte: Regionale Unterschiede im freiwilligen Engagement. In: Simonson J, Vogel C, Tesch-Römer C (eds) Freiwilliges Engagement in Deutschland. Empirische Studien zum bürgerschaftlichen Engagement. Springer, Wiesbaden, pp 549–571 Hertzog R (2018) Inter-municipal Cooperation in France: A Continuous Reform, New Trends. In: Teles F, Swianiewicz P (eds) Inter-Municipal Cooperation in Europe. Governance and Public Management. Palgrave Macmillan, Camden, pp 133–155 Jeanne M (2009) Les échecs de la droite Parisienne depuis 2001font-ils de Paris un fief de gauche? Institute Français de Géopolitique no. 5. https://geopolitique.hypotheses.org/73 Accessed 31 December 2019 Katz B, Bradley J (2013) The Metropolitan Revolution: How Cities and Metros Are Fixing Our Broken Politics and Fragile Economy. Brookings Institution Press, Washington DC Knoops R (2018) Halsema over boerkaverbod: de wet geldt ook in Amsterdam. Het Parool, 28 November 2018. https://www.parool.nl/nieuws/halsema-over-boerkaverbod-de-wet-geldt-ookin-amsterdam~b90a115d/ Accessed 29 December 2019 Kramer J (2005) Local government and city states in Germany. In: Steytler N (ed) The place and role of local government in federal systems. Konrad Adenauer Stiftung, Johannesburg, pp 83–94

52

G.-J. Leenknegt

Kuhlmann S (2006) Local government reform between ‘exogenous’ and ‘endogenous’ driving forces. Institution building in the city of Paris. Public Management Review 8(1):67–86 Mak G (2016) The Many Lives of Jan Six: A Portrait of an Amsterdam Dynasty. Atlas Contact, Amsterdam/Antwerp Pratchett L (2004) Local Autonomy, Local Democracy and the ‘New Localism’. Political Studies, 52(2):358–375 Sassen S (2001) The Global City. Princeton University Press, Princeton Schaap L, Leenknegt G (2018) Kleinschalig en kleurrijk. Binnengemeentelijke organisatie geïnventariseerd. Kennisbank openbaar bestuur, The Hague. https://kennisopenbaarbestuur.nl/rappor ten-publicaties/kleinschalig-kleurrijk/ Van der Woude W (2020) Commentaar op artikel 124 van de Grondwet. In: Hirsch Ballin E M H, Janse de Jonge J, Leenknegt G (eds) Artikelsgewijs commentaar op de Grondwet, web edition (www.Nederlandrechtsstaat.nl), Tilburg Van Ostaaijen J, Karsten N, Tops P (2017) De aanstellingswijze gewogen. Een overzicht van argumenten voor en tegen verschillende aanstellingswijzen van de burgemeester. Bestuurswetenschappen 71(4):5–24 Van Vugt E, Leenknegt G (2018) Halsema heeft gelijk: zelf afweging maken bij wetten. Trouw, 4 December

Gert-Jan Leenknegt is an Associate Professor of Constitutional Law. His research focuses on parliament-executive relations, particularly in local and regional governance, with a focus on issues related to the typical problems of big cities. Currently, he is involved in a research project concerning the functioning of the extra-parliamentary government of the Dutch province of Limburg, and in a project for the Dutch Ministry of the Interior concerning municipal ‘statutes’ (local ‘consitutions’).

Chapter 4

Reanimating Brussels—The Beating Heart of the Belgian Federation Johan Lievens and Karel Reybrouck

Contents 4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 The Institutional Structure of Brussels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.1 Brussels as a Shared Capital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.2 Brussels as an Inferior Region . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.3 Brussels: Split into Two Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.4 Brussels: A City Divided into 19 Municipalities . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2.5 Brussels: A Heart with Many Chambers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3 Rethinking the Institutional Structure of Brussels . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.1 Brussels as a Region Community? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.3.2 Brussels as a City Region? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

54 55 55 57 59 63 64 66 66 70 72 73

Abstract The constitutional framework of Brussels is characterized by a plethora of different governing bodies and an excessive fragmentation of competences. Leaving the EU aside, the Brussels territory is governed by no less than six governments with formal legislative power. The fragmented division of powers between the federal State, the Brussels-Capital Region and the Communities, and the 19 Brussels municipalities, impedes an efficient and coherent metropolitan governance. This chapter explores the relationship between different echelons of government in Brussels, the type and scope of autonomous powers of the Capital Region and its special position as the capital of Belgium. Section 4.2 elaborates on the main characteristics and some of the fundamental flaws of Brussels’ constitutional framework. Section 4.3 proposes to simplify Brussels’ complicated multilayered institutional framework by reinforcing the Brussels-Capital Region. The proposal consists of a combination of

J. Lievens (B) Faculty of Law, VU Amsterdam, Amsterdam, The Netherlands e-mail: [email protected] K. Reybrouck Leuven Centre for Public Law, KU Leuven, Leuven, Belgium e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_4

53

54

J. Lievens and K. Reybrouck

the transfer of certain community competences to the regional level and an integration of the municipalities in the Region, allowing the latter to develop a uniform and integrated policy for the entire territory of Brussels. Keywords Belgian federalism · Brussels · Capitals in federal states · City region · Division of competences · Municipal amalgamation · Territorial decentralization

4.1 Introduction The city of Brussels is literally at the heart of the Kingdom of Belgium. Geographically, the capital is located almost in the middle of the country. Constitutionally, it plays an equally central role in the structure of the country, housing institutions of various governments, and bringing together the population of different subentities of the Belgian federation. The constitutional framework of Brussels is characterized by a plethora of different governing bodies and an incredible fragmentation of competences. Leaving the EU aside, the Brussels territory is governed by no less than six governments with formal legislative power, allowing them to pass legislation within their specific field of competence. This complicated framework is as much the result of Brussels’ demographic peculiarity—housing both Dutch- and French-speaking inhabitants—as it is of the capital’s position in subsequent reforms of the Belgian federation. The divergent views on the Belgian constitutional framework were hardest to reconcile in Brussels. Consequently, only a complicated and asymmetric overlap of institutions and competences could provide constitutional peace. The resulting framework is not so much based on what is logical or workable for Brussels, as it is the result of a vision on the rest of the country that didn’t fully match the reality of the capital. Despite its intricate constitutional structure, Brussels appears at times to be more a (malfunctioning) pacemaker than a healthy beating heart. This chapter explores the relationship between different echelons of government in Brussels, the type and scope of autonomous powers of the Capital Region and its special position as the capital of Belgium. After elaborating on the main characteristics and some of the fundamental flaws of Brussels’ constitutional framework (Sect. 4.2), a twofold reform is proposed. Section 4.3 aims to rethink the institutional framework of the capital by putting Brussels at the centre of its own constitutional design: on the one hand, we propose to reinforce and simplify the competences of Brussels as the primary federated entity governing its territory. On the other hand, we suggest to rethink Brussels as a city by merging the current 19 municipalities of the Capital Region into a single authority, coinciding with the regional authority.

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

55

4.2 The Institutional Structure of Brussels In this section the institutional structure of Brussels is clarified. A brief exploration of the historical roots of Belgian federalism (Sect. 4.2.1) is followed by a systematic analysis of the different authorities with formal legislative power governing the Brussels territory. Aside from the federal ‘Belgian’ government, a number of federated entities hold specific devolved competences: the Brussels-Capital Region (discussed in Sect. 4.2.2), the Flemish ‘Community’, the French ‘Community’, the Brussels ‘Joint Community Commission’ and the ‘French Community Commission’ (discussed in Sect. 4.2.3, dealing with the exercise of so called ‘community competences’ within the Brussels territory). Moreover, the Brussels territory is divided into 19 separate municipalities with local autonomy. These are dealt with in Sect. 4.2.4.

4.2.1 Brussels as a Shared Capital The primary fault line in Belgian society is centred around the linguistic and cultural fissure which divides the north and the south of the country. In the northern part of Belgium (Flanders) the population speaks Flemish, while the population in the southern part of Belgium (Wallonia) speaks French.1 Over the past fifty years, tensions between the two main linguistic communities have led the country to transform from a unitary state into a federal state. Belgium’s complex system of federalism was designed and amended over the course of six consecutive state reforms between 1970 and 2014. Belgian federalism is the product of a compromise between the opposing views from the Dutch-speaking Flemings and the French-speaking inhabitants of the country on how the federal structure should be conceived. The long held Flemish aspiration for cultural autonomy was coupled with the demand of French-speaking politicians for economic selfgovernment for Wallonia. By 1960, both communities pursued a reform of the Belgian state in the direction of a federal structure in order to fulfil their own objectives. The Flemings adhered to the idea of a federal state based on two main communities, the Flemish Community and the French Community, whereby Brussels would (at least partially) be part of the Flemish Community. On the contrary, the French-speaking population envisioned a system of federalism consisting of three economic entities: Flanders, Wallonia and Brussels. Thus, the communities’ different aspirations led to opposing ideas about the conception of a federal system for Belgium. The compromise that emerged from this discussion consisted of the creation of two types of overlapping federated entities: three communities and three regions.2 Both the communities and the regions were given full legislative and executive power to exercise specific, formerly centralized, competences. As the communities 1 Less 2 Alen

than one percent of the population, living in East-Belgium, speaks German. and Haljan 2013, p. 146; Popelier 2019, pp. 23–24.

56

J. Lievens and K. Reybrouck

and the regions are exclusively competent over their attributed powers, conflicts between federal acts and decrees (or ordinances) of the communities or the regions— at least in principle—do not arise. Consequently, it was not deemed necessary to establish a hierarchy between the different entities under Belgian federalism, in contrast to other federal systems, such as the United States of America or Germany (‘Bundesrecht bricht Ländesrecht’). In Belgium, the three regions and the three communities are not subordinate to the federal state, and the decrees they issue are equivalent to federal acts.3 In negotiations between Flemings and the French-speaking population regarding the design and further development of Belgian federalism, one question has always been on the table: what about Brussels? Belgium’s bilingual capital Brussels is both one of the main factors keeping the country together, as well as a never-ending source of conflict between the Flemings and the French-speaking population of Belgium.4 Brussels is a fiercely contested city claimed by both the Flemish Community and the French Community as their capital. Originally, Brussels was a city in which the great majority of the population spoke Dutch, with the exception of a small French-speaking elite.5 The ‘Frenchification’ process, which started after the independence of Belgium in 1830, gradually changed the linguistic character of the city and the surrounding municipalities.6 Nowadays, about 90% of the inhabitants of Brussels speak French (either as a native or learned language) while less than a quarter of the population of the city speaks Dutch.7 The increasing francophone presence in Brussels (and Flanders) is a thorn in the side of Flemish nationalists who insist that Brussels remains a Flemish city. As WITTE described decennia ago: ‘(…) [This] specific language problem (…) [grew] into a conflict that was to dominate Belgian politics for more than 20 years. From 1960 onwards and until [the 1980’s] it was almost permanently fought out in the most hostile of atmospheres, was accompanied by every form of spectacular demonstration, caused great changes in voting patterns and gave rise to momentous crises.’8 Generally speaking, in the Flemish conception of Belgium as a federal state with two main communities, Brussels does not have an autonomous status. Brussels is considered a territory under shared rule (condominium) of both the Flemish community and the French community. On the contrary, French-speaking citizens who adhere to the idea of a Belgium of three regions, view Brussels as a third region, on equal footing with the two other regions. This vision scared the Flemings as they feared permanent minorization in a ‘federalism with three’, with two

3 Article 127, §2 Belgian Constitution; Article 128, §2 Belgian Constitution; Article 129, §2 Belgian

Constitution; Article 130, §2 Belgian Constitution; Article 134, al. 2 Belgian Constitution. and Lemmens 2015, p. 93. 5 Billen 2013, pp. 73–75; Van Velthoven 1989, p. 21. 6 Van Velthoven 1989, p. 21; Treffers-Daller 2002, p. 50. 7 Janssens 2018. 8 Witte 1987, p. 47. 4 Popelier

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

57

Fig. 4.1 The division of Belgium into four linguistic areas Source The authors

French-speaking entities.9 They rejected the creation of a Brussels Region on equal footing with the Flemish Region. In the compromise as it stands today, Brussels is an autonomous region, with a particular status, making it slightly inferior to the Flemish Region and the Walloon Region.10

4.2.2 Brussels as an Inferior Region At the heart of Belgian federalism lies the division of the country into four linguistic areas: the Dutch-speaking area in the north, the French-speaking area in the south, the German-speaking area in the east (East Belgium) and the French-Dutch bilingual area Brussels-Capital in the centre (see Fig. 4.1). In the Dutch-speaking area, Dutch is the internal working language of public administration and public officials must use Dutch in their communication with the public. Dutch is also the mandatory language operated in public institutions such as courts, schools, etc. The same system is applied in the two other monolingual areas of Belgium. Only in the bilingual area of Brussels-Capital do French and Dutch stand on equal footing.11 The Walloon endeavour towards autonomy in economic matters resulted in the creation of three regions: the Flemish Region (coinciding with the Dutch-speaking area), the Walloon Region (comprising the French-speaking and German-speaking

9 Popelier

and Lemmens 2015, p. 88. and Deschouwer 2009, pp. 1–2; Demol 1997, pp. 5–6. 11 See Coordinated Acts 18 July 1966 on the use of languages in administrative matters, MB 2 August 1966. 10 Delwit

58

J. Lievens and K. Reybrouck

Fig. 4.2 The division of Belgium into three regions Source The authors

areas) and the Brussels-Capital Region (coinciding with the bilingual area BrusselsCapital) (see Fig. 4.2). The Regions have material competences in matters relating to ‘territory’ and ‘economy’, such as labour market, energy policy, agriculture, environment, mobility and transport, spatial planning, urban development, and local government.12 Each region has a directly elected parliament and a government.13 The Brussels-Capital Region exercises the same competences as the other two regions.14 Brussels is an autonomous region, which nevertheless remains inferior to the Flemish Region and the Walloon Region with regards to certain specific matters. Thus, it is only a ‘Capital Region’ and its legislative acts are called ‘ordinances’, while the other federated entities issue ‘decrees’. Moreover, these ‘ordinances’ can in some cases be subject to a limited administrative review (by the federal government) and judicial review by the ordinary courts, a scrutiny that was not deemed necessary for the ‘decrees’ of the other federated entities.15 Furthermore, when the Flemish Region and the Walloon Region were awarded certain constitutive powers (as far back as in 1993), the Brussels Capital Region was left with empty hands. In the Sixth Reform of State (2012–2014), however, the difference between the Brussels Capital Region and the two other regions has shrunk. Brussels recently acquired certain constitutive powers as well (to decide inter alia the demarcation of 12 Article 39 Belgian Constitution and Article 6 Special Act 8 August 1980 on Institutional Reform, MB 15 August 1980. 13 The Flemish Community Parliament in practice exercises both its own competences and those of the Flemish Region (Alen and Haljan 2013, p. 147). 14 Article 4 Special Act 12 January 1989 on the Brussels Institutions, MB 14 January 1989 (hereafter: Special Brussels Institutions Act). 15 Articles 9 and 45 Special Brussels Institutions Act. A judicial review of regional decrees, comparable to the existing review of ordinances, was introduced in the case law of the Court of Cassation (Belgian Court of Cassation, no. C.08.0452.F, judgment of 21 April 2011).

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

59

electoral districts for regional elections, or additional rules for the composition of the Brussels parliament), albeit with certain limitations (excluded are for instance the ratio of MPs in each linguistic group in the Brussels Capital Parliament, the parity composition rule for the Brussels government, and the ‘alarm bell procedure’ protecting the rights of the Flemish minority).16 The pacification mechanisms protecting the Dutch-speaking minority in Brussels function both at the legislative and at the executive level. The parliament of the Brussels-Capital Region is split up in two linguistic groups. 72 parliamentarians belong to the French-speaking group and a guaranteed number of 17 MPs make up the Flemish linguistic group.17 At the legislative level, Flemish inhabitants of Brussels are protected by the existence of pacification mechanisms such as an ‘alarm bell procedure’18 and qualified majority ordinances.19 The composition of the government of the Brussels-Capital Region follows the federal example of linguistic parity. It consists of five ministers: the ‘linguistically neutral’ Minister-President, two Frenchspeaking Ministers, and two Dutch-speaking Ministers.20 It is clear that the small Flemish minority is starkly overrepresented within the parliament, and even more within the executive branch. These mechanisms, aimed at protecting the Flemish minority of the capital make it almost impossible for the Brussels Region to legislate without democratic support in both language groups.21

4.2.3 Brussels: Split into Two Communities The Flemish pursuit of cultural autonomy led to the creation of three communities: the Flemish Community, the French Community and the German-speaking Community (see Fig. 4.3). The concept of ’community’ refers to a group of people and the bond that unifies them, namely their language and culture. Whilst the competences of the regions are linked to the ‘territory’ and the ‘economy’, the competences of the communities are linked to the ‘person’ and his or her ‘culture’. The communities exercise material competences in person-related matters (e.g. wellbeing policy, health 16 The federal government held on to these constitutive competences as it didn’t want to allow Brussels-Capital Region to modify the institutional mechanisms protecting the Dutch-speaking minority in the capital (Peiffer 2015, pp. 88–94). 17 Articles 14 and 23 Special Brussels Institutions Act. 18 Three-quarters of MPs in a linguistic group in the Brussels Parliament can table a motion declaring that the provisions of a proposed ordinance are of such a nature as to seriously threaten relations between the communities. This motion suspends the parliamentary procedure, and starts a consultation mechanism at executive level (Article 31 Special Brussels Institutions Act). 19 Qualified majority ordinances can only be voted or amended when a majority of MPs in each linguistic group vote in favour (Article 28 Special Brussels Institutions Act). 20 Article 43 Special Brussels Institutions Act. 21 A mirrored version of these same mechanisms can be found at the federal level where institutional pacification mechanisms protect the French-speaking minority (e.g. parity in the federal government, qualified majority laws, veto powers). See Van Ypersele 1997b, pp. 61–65.

60

J. Lievens and K. Reybrouck

Fig. 4.3 The division of Belgium into three communities Source The authors

system, family policy, youth protection) and in cultural matters and education (e.g. language, sports, media). Each community has its own parliament and government. The asymmetry in Belgian federalism stems primarily from the imperfect congruence between the borders of the regions and the communities.22 Brussels is an autonomous region, but it lacks an own community. The contrary is true for the German-speaking area (East Belgium). Whilst the question of the exercise of the regional competences in the latter territory was easily handled by extending the territorial jurisdiction of the Walloon region over East Belgium,23 the exercise of community competences in Brussels proved a far more intricate conundrum. In principle, the competences of the federated entities are governed by the idea of territoriality: the regions and the communities only exercise competences within their territorial limits, and do so without competition with another federated entity. Thus, the Flemish Community is prohibited from exercising jurisdiction over Flemings living in the French-speaking area, and vice versa. The underlying idea is to have only one competent authority for each and every competence in each and every part of the country. However, given the lack of a Brussels Community in the Belgian structure, for the exercise of community competences within the bilingual capital the principle of territoriality is abandoned to a certain extent and aspects of personal federalism surface. 22 Swenden

2002, p. 74.

23 This ‘solution’ has not been fully welcomed by local German-speaking politicians, who have been

demanding a transfer of all regional competences to the authorities of the German-speaking Community. This would make the community responsible for all community and all regional competences (Grundsatzerklärung des Parlaments zur Positionierung der Deutschsprachigen Gemeinschaft im Prozess der Staatsreform, Parliamentary documents of the Parliament of the German-Speaking Community 2010–11, no. 83/2, p. 2). This article does not elaborate further on the German-speaking Community as the discussion will be focused on the Brussels Capital Region.

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

61

Thus, the jurisdiction of both the Flemish Community and the French Community is stretched out over the bilingual area of Brussels-Capital. This means that both communities do not only exercise territorial jurisdiction over ‘their’ respective monolinguistic areas (the Flemish Community over the Dutch-speaking part in the north of the country; and the French-speaking Community over the French-speaking south respectively), but also exercise a form of personal jurisdiction over their own community within Brussels. In other words, the French Community—to focus on one of the two—comprises the whole population of the French-speaking area—including Flemings living there—and the inhabitants of the bilingual area Brussels-Capital who adhere to the French Community. However, the Belgian Constitution forbids both communities to directly target persons in Brussels, as this would require to identify Brusselers as belonging to one or the other community. Instead, the two communities must limit the exercise of their competences in Brussels to the institutions belonging to their respective communities.24 This institution-logic approach ensures that the population of Brussels is not forced to choose a sub-nationality. Comprehensively dividing the population of Brussels into two sub-national groups, a Flemish community and a French community, would be incredibly challenging—if not impossible—for multiple reasons that include mixed-group marriages, as well as the presence of large groups of foreigners and bilinguals who do not fit in this binary community-logic. As a result, in Brussels, two parallel administrations are running their own network of public schools, day care centres, sports clubs, museums, cultural centres and libraries. The prohibition of sub-nationalities in Brussels entails that a person’s attachment to a community through its network of institutions is always voluntary, non-exclusive and not definitive.25 Residents of Brussels can choose to which community—French or Flemish— to turn for government services, even on a case by case basis. French-speaking parents may choose to send their child to a Dutch-speaking school (organized by the Flemish Community) and to a French-speaking football club (a French Community organization), and alter this choice at any given time. Two ‘community commissions’ have been created to exercise (part of) the monocultural and mono-person-related community competences in Brussels on behalf of their respective communities.26 The French Community Commission (Commission communautaire française, hereafter: COCOF) administers the responsibilities of the French Community in the Brussels-Capital Region. The Assembly of the COCOF consists of the 72 members of the French linguistic group in the Parliament of the Brussels-Capital Region. The Flemish Community Commission (Vlaamse Gemeenschapscommissie, hereafter: VGC) is the extension of the Flemish Community in the Brussels-Capital Region. The Assembly of the VGC consists of the 17 members of the Flemish linguistic group in the Parliament of the Brussels-Capital Region. 24 The adherence to a community can either be established on the basis of an institutions’ organization (Article 128, §2 Belgian Constitution) or on the basis of an institutions’ activities (Article 127, §2 Belgian Constitution). 25 Dumont and Van Drooghenbroeck 2011, pp. 201–226; Van Ypersele 1997a, pp. 20–21. 26 Article 136 Belgian Constitution and Article 60 Special Brussels Institutions Act.

62

J. Lievens and K. Reybrouck

With the risk of overburdening the reader with too much detail: while the VGC only acts as a decentralized authority under the mandate of the Flemish Community, the French Community has decided to transfer entire legislative competences to the COCOF.27 As a result, the COCOF is not only a decentralized institution subordinate to the French Community, but also a legislative authority of its own, able to administer its own community decrees within the Brussels territory. Additionally, a third community commission has been created: the ‘Joint Community Commission’ (Gemeenschappelijke Gemeenschapscommissie or Commission communautaire commune, hereafter: COCOM).28 The COCOM is the competent authority for person-related community matters not exclusively relating to one of the two communities. Although the COCOM is a separate legal entity, its competences are exercised by the MPs and ministers of the Brussels-Capital Region. The composition of the legislative and executive organ of the COCOM is the same as the composition of the parliament and the government of the Brussels-Capital Region, including the division in two language groups.29 The COCOM fills the void left by the Flemish Community and the French Community, which can neither directly target persons, nor target institutions not exclusively adhering to one of the two communities. The COCOM is responsible for providing direct assistance to citizens in Brussels, without the intervention of intermediary institutions. The COCOM is competent for the so-called ‘bi-person-related community matters’, i.e. the ‘person-related’ community competences that cannot be traced back to one of the two communities. These institutions include, among others, hospitals, sanatoriums, public centres for social welfare, centres of preventive medicine, other health care institutions and centres of assistance for people with disabilities. For the community competences in cultural matters and education a same problem arises as for person-related matters: following the system laid out above the Flemish and French Community have only a limited competence for monolingual institutions. Contrary to the choice for a Brussels institution—the COCOM—for bi-personrelated matters, the federal government withholds the competence over the so-called ‘bicultural community matters’ in Brussels, i.e. activities and institutions in the field of culture and education that do not adhere to either one of the two communities. Existing examples include the National Orchestra of Belgium, the Centre for Fine Arts Brussels and the Federal Opera House. Other examples could be bilingual schools, multilingual sports centres etc. For the sake of completeness, we shouldn’t forget that the federal government exercises its own competences within the Brussels territory. In Belgium, federal 27 Article

138 of the Belgian Constitution allows the French Community to transfer the community competences exercised in the French-speaking area to the Walloon Region, and transfer the community competences exercised in the bilingual region of Brussels-Capital to the COCOF. 28 Article 135 Belgian Constitution and Article 60 Special Brussels Institutions Act. 29 The president of the Government of the Brussels Capital Region however only has an advisory voice (“voix consultative”, “raadgevende stem”) when presiding the executive organ (“collège réuni”, “verenigd college”) of the COCOM (Article 77 Special Act 12 January 1989 on the Brussels Institutions).

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

63

competences include inter alia national security, social security, justice, police, civil and criminal law, rail transport and public health.30

4.2.4 Brussels: A City Divided into 19 Municipalities The previous sections elaborated on the complex division of competences between the Brussels-Capital Region, the communities and the federal government in Brussels. To add to the complexity of Brussels’ stratified institutional structure, competences are not only scattered between these authorities at a state level, but also at the lower level. At the local level, the territory of the Brussels-Capital Region is divided into nineteen decentralized municipalities. The distribution of powers between these municipalities and the authorities with legislative power brings about an inefficient fragmentation of competences.31 In order to understand the nature and powers of the municipalities in Brussels, we must first explain the overarching model of territorial decentralization in Belgium. In 1830, Belgium was founded as a territorially decentralized unitary state, divided in 9 provinces and approximately 2500 municipalities.32 The provinces and municipalities or communes are subordinate governments. The central government (and later also the Regions and the Communities) exercise an administrative supervision over all acts of these decentralized institutions. The Belgian Constitution endows the municipalities with the power over all matters of municipal interest and the provinces with the power over all matters of provincial interest.33 This principle of local autonomy, which plays an essential role to determine the competences of these local authorities, has both a so-called positive and a negative dimension. With regards to the municipalities, the positive dimension of the principle of local autonomy implies that the municipal council is competent for all matters of municipal interest. According to the Constitutional Court the principle of local self-government presupposes that local authorities are able to seize any object which they consider to be in their interest, and to regulate as they feel appropriate.34 In general, municipalities exercise competences with regards to e.g. maintenance of municipal roads and squares, municipal taxation, and maintenance of law and order. Other examples of municipal competences are communal regulations regarding public parks, clean streets, planning permission and cemeteries, or building communal schools, crèches, sports centres and cultural centres. The negative dimension of the local autonomy principle protects the local authorities against any intrusive action by the higher authorities (the Federal Government, the Regions and the Communities) aiming to limit the municipal sphere of competence. 30 Vande

Lanotte et al. 2006, p. 90. Sect. 4.2.5. 32 Alen and Haljan 2013, pp. 36–40. 33 Articles 41 and 162 Belgian Constitution. 34 Belgian Constitutional Court, no. 89/2010, judgement of 29 July 2010, B.18.2. 31 See

64

J. Lievens and K. Reybrouck

The Constitution prohibits any disproportionate violation of municipal autonomy by the higher authorities.35 Between 1960 and 1977 a large-scale process of municipal amalgamations decreased the total number of municipalities with more than 75% to a little under 560.36 This major redesign of the landscape of territorial decentralized authorities left the nineteen Brussels municipalities untouched. The decentralized structure of Brussels today is a nineteenth-century relic with a far from logical demarcation of municipal borders. Even though the Brussels municipalities were never merged and persisted in their nineteenth-century constellation, the municipal level has undergone some profound changes in the past fifty years. In an attempt to create a coordinating body for the nineteen municipalities, the Brussels Agglomeration was created in 1971.37 The Agglomeration is a territorially decentralized authority created to exercise some former municipal competences such as taxi-policy, trash collection, waste management, the fire department and urgent medical aid.38 The Brussels Agglomeration can be seen as the institutional predecessor of the Region of Brussels-Capital, which was created in 1989 and took over all the Agglomeration’s competences. After the federalization process carved up Belgium along linguistic lines, the former bilingual province Brabant became an anachronistic memory of the defunct unitary Belgian State. In 1995, this province was split in two new provinces: the province of Flemish Brabant (comprising the Brabant communes belonging to the Flemish linguistic area) and the province of Walloon Brabant (comprising the Brabant communes belonging to the French linguistic area). Since Brussels was deemed to count more than enough governing bodies already, the idea of creating a specific Brussels Province was rejected.39 As a consequence, the nineteen Brabant municipalities which make up the bilingual area Brussels-Capital were excluded from division into provinces.40

4.2.5 Brussels: A Heart with Many Chambers The present statute of Brussels is not the result of a conscious, deliberate choice. Both Dutch-speaking and French-speaking politicians and academics agree that no one

35 Belgian

Constitutional Court, no. 89/2010, judgement of 29 July 2010, B.18.4. Ceuninck et al. 2010, pp. 810–811. 37 Article 165 Belgian Constitution; Article 1 Act 26 July 1971 regarding the Organisation of Agglomerations and Federations of Municipalities, MB 24 August 1971. 38 Article 4 Act 26 July 1971 regarding the Organisation of Agglomerations and Federations of Municipalities, MB 24 August 1971. 39 Van Orshoven 1993, p. 249; Clement et al. 1993, p. 133. 40 Article 5, 2 Belgian Constitution. 36 De

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

65

considers the current institutional architecture a desirable solution for Brussels.41 As the political agreement which preceded the last Reform of State (2012–2014) stated: ‘In a lot of cases, this fragmentation of competences between the different authorities in Brussels impedes an efficient and coherent metropolitan governance’.42 In Brussels day-to-day politics it is not unusual for a policy matter to be left untouched or only dealt with after intense negotiations between different governments, often trying to pass on responsibility to one another. Environment, mobility, and housing, for example, are regional matters, but the federal government and the municipalities are also involved in these matters.43 One recent concrete example might clarify this: in 2018–2019 the Brussels North station served as a clandestine, temporary refuge for a number of immigrants, most of whom were most likely planning to travel on (without authorization) to the UK. This created a clear need for government initiative, to answer both the needs of the immigrants (who were sleeping in detrimental conditions on the floor of the station, with only limited sanitary equipment), and to respond to reported instances of nuisance experienced by everyday commuters. However, the national railway company and immigration are federal matters, the station services buses from both the Brussels and the Flemish regional bus companies (the drivers of the latter being the most vocal in complaining about nuisance in this example), personal assistance should be provided by the COCOM, and the station happens to be located right on the border between the municipalities of Saint-Josse-ten-Noode and Schaerbeek, who are in charge of policing the neighbourhood. No government taking responsibility is not the only problem. The opposite has happened as well: the Brussels Region trying to launch new policies, and bumping into institutional limits. For instance, when the Brussels Region started to finance day care centres and schools, the Constitutional Court annulled these government programs on the ground that education and child care are community competences.44 Figure 4.4 gives an overview of the different legislators (at the non-local level) active in Brussels and their respective competences as discussed above. This schedule corresponds to the situation pre-2012. The most recent changes—from the 2012 state reform—will be discussed later on, as a stepping stone for our first proposal for improvement.

41 Delwit

and Deschouwer 2009, p. 1; Maskens and Vandenbergh 2019, p. 19; Van Wynsberghe 2013, p. 100. 42 Government Agreement Di Rupo I, 1 December 2011, p. 27, https://www.lachambre. be/kvvcr/pdf_sections/searchlist/Accord_de_Gouvernement_1er_decembre_2011.pdf Accessed 1 November 2019. 43 Van Wynsberghe 2013, pp. 100–101. 44 Belgian Constitutional Court, no. 184/2011, judgement of 8 December 2011; Belgian Constitutional Court, no. 67/2012, judgement of 24 May 2012.

66

J. Lievens and K. Reybrouck

Fig. 4.4 The authorities with legislative powers in Brussels, pre-2012 Source The authors

4.3 Rethinking the Institutional Structure of Brussels For readers without prior knowledge about Belgian constitutional law, the institutional structure outlined above might appear extremely complicated. This is not less the case for the population of Brussels (or of Belgium as a whole), and even for politicians, policy makers, activists, journalists, and others who work with and within this structure on an everyday basis. This section aims to rethink Brussels’ constitutional framework, putting the Capital Region at the centre of its own constitutional design. The aim is to strengthen efficiency and transparency, assuming it is a precondition of true citizenship that people should be able to understand governmental structures. In what follows, we therefore develop two intertwined propositions. First, Sect. 4.3.1 discusses the optimization of Brussels as a federated entity. Building on recent evolutions from the ‘Sixth State Reform’ (2012) and on proposals from legal and political doctrine, we develop a scheme of Brussels as a fully-fledged federal entity, holding not only regional competences, but also community competences. This would not only eliminate a whole layer of complexity in the institutional scheme, it would also facilitate new policies, such as the creation of true Brussels bilingual educational or cultural initiatives. Secondly, in Sect. 4.3.2 the possibility is explored of merging the 19 municipalities of the Brussels region into one single local authority, coinciding with the regional authority. In order to maintain a level of political participation closer to the citizens, a number of districts whose borders may or may not coincide with those of today’s communes could be created simultaneously.

4.3.1 Brussels as a Region Community? Over the last fifty years, consecutive amendments of the Belgian state structure have time after time added to the complexity of Belgian federalism as a whole, and— particularly—of Brussels as its capital region. The 2012–2014 ‘Sixth State Reform’ was no exception to this dynamic. One of the many changes it introduced concerned the competence for ‘bicultural’ matters in Brussels. As outlined above, bicultural

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

67

Fig. 4.5 The authorities with legislative powers in Brussels, since 2012 Source The authors

matters in Brussels remained a competence of the federal government. This specific competence seems to have slipped the attention of the federal government as the amount of government initiatives taken within this field in the last decades are few.45 This comes as no surprise. As the competences for culture, media and communication have been transferred to the Communities in the first stage of the process of federalization in 1970, the federal administration nowadays lacks the relevant structure, expertise and incentives to take bicultural initiatives in Brussels. To remedy the inaction of the federal government, the competence for certain bicultural matters was transferred to the Brussels region in 2012–2014, thus adding an extra layer of complexity to the Belgian system. This transfer concerned three specific bicultural matters: the financing of municipal sport infrastructure; vocational training; and bicultural matters of regional concern related to the fine arts, the cultural patrimony, museums and other scientific-cultural institutions.46 Thus, a limited number of community competences was assigned to a regional authority. The result is shown in Fig. 4.5. We propose to deepen this recent complication in order to—paradoxically—arrive at a simplification of Brussels’ institutional structure. Continuing on the path of the last reform our proposal is to make the Brussels Region competent for all community competences, at least as far as they are not monocultural or mono-person-related. In other words, the remaining federal ‘bicultural’ competences for culture and education should be transferred to the Brussels Region. The regional institutions should also take over the bi-person-related competences currently assigned to the COCOM. By transferring the bicultural and bi-person-related community competences to the Brussels Region the number of competent authorities can be reduced, simplifying the overall structure and thus its transparency. First, the COCOM would cease to exist. Thereby, the artificial distinction whereby the same politicians are considered to represent the Region or the COCOM depending on the matter at stake would be abandoned.47 However, abolishing the COCOM raises another question. Should the 45 Dumont

and Vancrayebeck 2008, p. 252; Lievens 2014, p. 287.

46 Article 135bis Belgian Constitution and Article 4bis Special Brussels Institutions Act; see Lievens

2014, pp. 282–286. 47 The main feature of COCOM decision making—a requirement of a special majority for all its competences, requiring half or a third of votes from both language groups—could be maintained for ‘bi-person-related’ matters within the regional system. Another option—that does not need to be linked to our proposal—is to evaluate and potentially adapt the special majority system.

68

J. Lievens and K. Reybrouck

COCOM decision making requirements—a special majority for all its competences, requiring half or a third of votes from both language groups—be maintained in the regional system? Maintaining the status quo for ‘bi-person-related’ matters in Brussels (and even in specified regional matters, such as the organization of local institutions) might decrease the benefit of “simplification” and “transparency”. Conversely, altering the status quo might be considered non-negotiable for Flemings who consider the special majority requirement to be a crucial aspect of the protection of their minority position. Another option is to evaluate and potentially adapt the special majority system in community affairs in Brussels. A broader evaluation could entail a redefinition of the numerical thresholds, a change in the competences for which a special majority is required, or even an adaptation of the number of representatives in each of both language groups or a reconfiguration of the language group system as a whole. Given the sensitivity of these matters, we believe it is primarily a political task to find a balance in this within the larger institutional compromise. Secondly, the federal government would no longer be one of the legislators for community matters, a role it was in practice not (fully) fulfilling anyway. Control on compulsory education would thus become a competence of the Brussels Region, besides bi- or multilingual radio stations, television, day care, schools etc. Thirdly, in order to better match the multilingual reality of Brussels daily life we suggest to no longer speak of ‘bicultural’ and ‘bi-person-related’ competences. Instead we propose a new terminology, speaking of multicultural and multi-personrelated competences when referring to non-monocultural and non-mono-personrelated competences. Although the Brussels Region gains competences for all community matters, the distinction between mono- and multi-cultural (or mono- and multi-person-related) matters remains relevant. The Flemish and French Community will remain competent for monocultural and mono-person-related initiatives. As much as there seems to be a political desire by Brussels’ politicians to take these community competences into their own ‘regional’ hands, an equally legitimate interest can be identified from the side of the two communities to continue their support of cultural, educational and ‘mono-person-related’ institutions within the Brussels territory. The purpose is not to give Brussels a competing parallel competence for those monocultural or mono-person-related matters. Neither do we intend to allow the French and Flemish Community to actively support multi-cultural or multi-personrelated initiatives. Nevertheless, a certain ‘competition’ cannot be excluded. Imagine the situation where both the Brussels Region and the Flemish Community intend to open a museum with the same theme (e.g. Tintin—or in Dutch: Kuifje); or where both the Communities and the Region were to open schools or day care centres. If we want to honor the legitimate claims of both the multilingual Brussels authorities and the monolingual communities, such parallel ‘competing’ initiatives seem unavoidable.

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

69

Even today, some competences are already being taken care of by both the Brussels Region and the Communities.48 In our proposal the Brussels Region will become competent for all multicultural and multi-person-related matters. Legally speaking, the distinction between multicultural competences (as rooted in Article 127 of the Constitution, currently a competence of the federal government and—partly—of the Brussels Region) and multiperson-related competences (as rooted in Article 128 of the Constitution, currently a COCOM competence) would cease to exist. Politically however the distinction might remain relevant.49 In cultural matters, including in education, the Flemish and French Community can continue to play a major role. The existing network of schools and the, mostly Flemish, desire to maintain ‘proper’ cultural institutions within the shared bilingual capital are important elements here. Meanwhile we propose allowing the Brussels Region to develop a complementary multilingual education policy, surpassing the rift between both communities, fully addressing the population of Brussels as a whole.50 Thus, local and international cultural institutions or events could be organized under regional policy—in addition to the existing community initiatives. Even a candidacy by the regional government for the Olympics (which is nowadays not possible as the competence for sport is a community one) should be feasible.51 For person-related matters we envision a future in which the primary responsibility befalls the Brussels Region. The Region would thereby aim to provide the entire population of the capital with all services relating to ‘person-related’ matters. Additionally—building on an in itself sufficient ground level of services provided by the Region—the communities can operate in this same field, although only through monolingual institutions (mono-person-related matters). An important condition for this scenario to attract political support from both communities is that sufficient guarantees should be given to the Flemish (Dutch-speaking) minority of the Brussels Region to retain access to quality services in their own language. Although the institutional framework of the shared capital will inevitably retain a certain level of complexity, our proposal allows for a clear simplification. This is made visible in Fig. 4.6: one authority is abolished (the COCOM) and three columns of competences are merged into one. The different multicultural and multi-personrelated competences—which we have labelled ‘multi-community competences’— are now brought together under the authority of the Brussels-Capital Region. By increasing the role of the Brussels Region for community competences, the Region can develop a common policy for its entire territory, looking beyond the distinction between community and regional competences and fully addressing

48 Thus both the Region and the Communities are providing rental wheelchairs to people with disabilities (see Loosveldt 2017, p. 406). 49 Dumont and El Berhoumi 2018. 50 El Berhoumi et al. 2019. 51 See on sports: Parliamentary Proceedings of the Parliament of Brussels Capital Region 2002–03, nr. 55, p. 10.

70

J. Lievens and K. Reybrouck

Fig. 4.6 The authorities with legislative powers in Brussels, proposal Source The authors

the entire population, whether their mother tongue is Dutch, French or any other language. This proposal is more than an academic exercise. It answers a returning demand of Brussels’ authorities to be awarded ‘fuller’ competences, and contributes to making the institutional framework less complex, and thus more accessible for the citizens. Proponents of this proposal will welcome this simplification of an overly complex constitutional framework, as well as the potential efficiency that can be gained with it. Opponents might fear a weakening of the position of the Flemish minority in Brussels. The Brussels Fleming is said to be strongly attached to the strong network of Flemish Community institutions in Brussels. It is important to note that the proposal here discussed does not aim to annul Flemish initiatives in the capital. The position of Flemish schools and cultural institutions in Brussels will remain the same (the only thing changing being the creation of a competence for the Brussels Region to take the initiative for a parallel multilingual policy, e.g. by providing subsidies to bilingual educational initiatives). Our proposal allows the Region to develop a common and fully fledged policy for the entire territory of Brussels. As it aims to strengthen efficiency, simplification and transparency, we deem it perfectly combinable with another evolution: a fusion of the 19 existing communes making up the Brussels Region, with a centralization of communal power at the regional level.

4.3.2 Brussels as a City Region? With regard to the institutional reform at the local level in Brussels, a heated debate exists between so-called ‘regionalists’ and ‘municipalists’. Regionalists wish to reinforce the Brussels-Capital Region by either endowing the Region with competences which are traditionally exercised by the municipalities, or by merging the communes, or even by suppressing the municipal level as a whole.52 Municipalists, on the other

52 See

Sottiaux 2013, pp. 29–30.

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

71

hand, are in favour of conserving strong municipalities in the Brussels institutional structure.53 Let us have a closer look at the arguments of both sides in this debate. Proponents of a strong local level often invoke the proximity and democratic representativeness of municipalities. These local authorities are the lowest representative political body, which offers the citizen the opportunity of participating effectively in the making of decisions affecting their everyday environment.54 Political representatives at the municipal level are in close contact with citizens and have more concrete field knowledge. Furthermore, the principle of local autonomy means that the municipalities are not confined to the area of regional powers. The municipalities can take action in all matters of municipal interest, enabling them to manage cross-cutting policies irrespective of the exclusive division of powers between the Brussels-Capital Region, the Communities and the federal government. The municipal level is therefore the only place where powers which are scattered between the higher authorities in Brussels, are consolidated.55 Regionalists stress that nineteen municipalities, with different local interests and political coalitions, are incapable of bringing an integrated and efficient governance for the whole city. Only the Region is able to bring coherence to largescale policies and promote the regional interest as a whole, in contrast with the 19 municipalities that rarely transcend their own local interest.56 Secondly, developing a policy at the level of the Region allows more economy of scale and entails a solidarity mechanism between inhabitants of richer and poorer municipalities. Operating at the regional level allows for inequalities to be made up for on a larger scale through the redistribution of means or through social adjustment mechanisms.57 Over the past years, regionalists have tabled a number of proposals rethinking the place of the municipalities in the institutional system. The status, competences and even the continued existence of Brussels’ 19 municipalities are increasingly questioned.58 These proposals are generally centred around one of two main axes. The first category of proposals focuses on reorganizing the competences between the local level and the Brussels-Capital Region. The second, more drastic, set of proposals envisions some municipal amalgamations, a complete fusion of the nineteen municipalities or even a total abolition of the municipal level in Brussels. In the last scenario, the Brussels-Capital Region would absorb the municipal competences and become a city region, acting both as a subordinate, territorially decentralized authority and as a federated entity.59 It is important to take both the municipalist arguments and the arguments pro-regionalization into account when contemplating 53 See

Cadranel and Mossoux 2014, pp. 449–457. 2012, pp. 6–7; Sottiaux 2013, p. 28. 55 See Cadranel and Mossoux 2014, pp. 455–456; Lagasse 2012, pp. 6–7. 56 Lagasse 2012, p. 8. 57 Ibid. 58 For some examples, see Maskens and Vandenbergh 2019, pp. 25–29; Nassaux 2018, pp. 18–19; Van Haute et al. 2018, pp. 33–104. 59 Nassaux 2018, pp. 31–32. 54 Lagasse

72

J. Lievens and K. Reybrouck

a reform of the local level in Brussels. We propose to merge the 19 municipalities of the Brussels Region into one single local authority. That authority is to coincide with the regional authority, thus avoiding a conflict of two territorially overlapping entities: a Brussels-Capital City and a Brussels-Capital Region. This should allow more economy of scale and enable Brussels-Capital Region to govern the whole territory in an integrated and efficient way. In order to maintain a level of political participation closer to the citizens, a number of districts whose borders may or may not coincide with those of today’s communes could be created simultaneously. The most important difference between the present-day municipalities and the newly created districts is the absence of the constitutional protection of local autonomy. As was mentioned above, the local autonomy principle forbids the Region to intrude in the municipal sphere of competence by harmonizing, coordinating or even taking over municipal competences in a disproportionate way. Districts do not fall under the protection of local autonomy. An ordinance of the Brussels-Capital Parliament can define the competences, working rules and mode of election of these intra-municipal territorial bodies.60 This allows the Brussels-Capital Region to decide autonomously on the division of competences between the higher authorities and the districts without any constitutional constraints, placing Brussels again at the centre of its own institutional design.

4.4 Conclusion Leaving the EU aside, the Brussels territory is governed by no less than six governments with formal legislative power. Federal, regional, community and local competences have been awarded to a multilayered institutional framework lacking efficiency and transparency. Section 4.2 explored the many institutions that govern the Brussels territory, and their respective competences. Although Brussels is physically at the heart of the Belgian federation, institutionally it has been treated as an afterthought of opposing Flemish and Walloon constitutional desires. Building on this framework, Sect. 4.3 described how constitutional change can improve Brussels’ institutional design. The developed proposal is twofold. A first improvement consists of a transfer of formal legislative powers to the BrusselsCapital Region. The Capital Region should acquire full competences for bicultural and bi-person-related—to be called multicultural and multi-person-related—matters. On the one hand, this would deprive the COCOM of all its competences, thus reducing the number of federated entities within the Belgian framework. On the other hand, it would end the competence of the federal government for bicultural matters, thus providing a solution for the frustration of Brussels’ politicians with the inaction at the federal level.

60 Article

41 Belgian Constitution.

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

73

A second improvement is to be made at the local level. Our proposal is to merge the 19 municipalities of the Brussels Region into one single local authority, coinciding with the regional authority. Under the authority of the Brussels-Capital Parliament a number of districts could be created to maintain a level of political participation closer to the citizens. Our proposal enables the Brussels-Capital Region to develop more coherent policy initiatives, crossing the artificial boundaries between community, regional and local matters, and addressing the multilingual population of Brussels as a whole. By doing so, it answers some of the fundamental flaws of the constitutional design of Brussels—today a malfunctioning pacemaker—and allows the capital to evolve into the true heart of the Belgian federation.

References Alen A, Haljan D (2013) Belgium. In: Alen A, Haljan D (eds) The International Encyclopedia of Laws, Constitutional Law. Kluwer Law International, The Hague, pp 1–314 Billen C (2013) The history of a political capital. In: Corijn E, van de Ven J (eds) The Brussels reader: a small world city to become the capital of Europe. VUBpress, Brussels, pp 62–80 Cadranel B, Mossoux Y (2014) L’articulation des compétences régionales et locales dans la Région de Bruxelles-Capitale: l’autonomie locale menacée ou recadrée? In: Sautois J, Uyttendaele M (eds) La sixième réforme de l’État (2012-2013) - Tournant historique ou soubresaut ordinaire? Anthemis, Limal, pp 449–487 Clement J, D’Hondt H, Van Crombrugge J, Vanderveeren C (1993) Het Sint-Michielsakkoord en zijn achtergronden. Maklu-Uitgevers, Antwerp De Ceuninck K, Reynaert H, Steyvers K, Valcke T (2010) Municipal Amalgamations in the Low Countries: Same Problems, Different Solutions. Local Government Studies 36(6):803–822 Delwit P, Deschouwer K (2009) The institutions of Brussels. Brussels Studies Synopsys CFB 14:1–9 Demol J (1997) A description of the Brussels Institutions. In: Detant A (ed) Brussels - Jerusalem: conflict management and conflict resolution in divided cities: a comparative research project. VUB Centre for the interdisciplinary study of Brussels, Brussels, pp 2–16 Dumont H, El Berhoumi M (2018) Pour simplifier Bruxelles, La Libre 23 January 2018, https://www.lalibre.be/debats/opinions/pour-simplifier-bruxelles-opinion-5a660bedcd70 b09cefcc6e1a Accessed 1 November 2019. Dumont H, Vancrayebeck L (2008) L’exercice des compétences communautaires à Bruxelles. Chroniques de Droit Public/Publiekrechtelijke Kronieken 1:187–196 Dumont H, Van Drooghenbroeck S (2011) L’interdiction des sous-nationalités à Bruxelles. Administration Publique Trimestriel 3:201–226 El Berhoumi M, Sautois J, Slautsky E (2019) Étude juridique relative à la création d’écoles dispensant un enseignement bilingue en Région de Bruxelles-Capitale, Brussels Studies Institute 31 March 2019, https://bsi.brussels/research/etude-juridique-relative-a-la-creation-decoles-dis pensant-un-enseignement-bilingue-en-region-de-bruxelles-capitale/ Accessed 1 November 2019. Elst M, Van Nieuwenhove J (2017) Constitutieve bevoegdheden ("constitutieve autonomie"). In: Seutin B, van Haegendoren G (eds) De transversale bevoegdheden in het federale België. Die Keure, Bruges, pp 63–108 Janssens R (2018) BRIO language barometer 4: Languages in Brussels. Brio, Brussels Lagasse N (2012) Organisation of powers between Region and municipalities in Brussels: going beyond the antagonism of the “Tina” and “Nimby” approaches. Brussels Studies 61:1–13

74

J. Lievens and K. Reybrouck

Lievens J (2014) Brussel volgens de Zesde Staatshervorming. In: Alen A, Dalle B, Muylle K, Pas W, Van Nieuwenhove J, Verrijdt W (eds) Het federale België na de Zesde Staatshervorming. Die Keure, Bruges, pp 227–304 Loosveldt G (2017) Het beleid inzake personen met een handicap. In: Seutin B, van Haegendoren G (eds) De bevoegdheden van de gemeenschappen. Die Keure, Bruges, pp 387–410 Maskens A, Vandenbergh Y (2019) En finir avec l’imbroglio institutionnel. In: Aula Magna, Demain Bruxelles. Petite Collection Politique, Brussels, 17–30 Nassaux J-P (2018) Le retour du débat institutionnel bruxellois (2016-2018). Chroniques Hebdomadaires du CRISP 2374:1–36 Peiffer Q (2015) Autonomie constitutive. In: Uyttendaele M, Verdussen M (eds) Dictionnaire de la Sixième Réforme de l’Etat. Larcier, Brussels, pp 73–98 Popelier P (2019) Asymmetry and Complexity as a Device for Multinational Conflict Management. A Country Study of Constitutional Asymmetry in Belgium. In: Popelier P, Sahadži´c M (eds) Constitutional Asymmetry in Multinational Federalism: Managing Multinationalism in Multitiered Systems. Palgrave Macmillan, Cham, pp 17–46 Popelier P, Lemmens K (2015) The Constitution of Belgium: A Contextual Analysis. Hart, Oxford Sottiaux S (2013) Is small beautiful after all? Reply to Wouter Van Doornen & Dave Sinardet. In: Van Dooren W, Sinardet D (eds) Must Brussels’s communes be merged?: The experiences of Antwerp, Berlin and Vienna. Rethinking Belgium e-book 13, Brussels, pp 28–30 Swenden W (2002) Asymmetric Federalism and Coalition-Making in Belgium. Publius 32:3–67. Treffers-Daller J (2002) Language Use and Language Contact in Brussels. Journal of Multilingual and Multicultural Development 23:50–64 Van Haute E, Deschouwer K, Gaudin T, Janssens R, Kavadias D, Mares A, Paulis E, Pilet J-B, Sierens V, Tibbaut A (2018) Gouvernance à Bruxelles - rapport final. Joint Research Group DEGO – The Politics of Democratic Governance ULB/VUB, Brussels Van Orshoven P (1993) Brussel, Brabant en de minderheden. In: Alen A, Suetens L P (eds) Het federale België na de vierde staatshervorming. Die Keure, Bruges, pp 227–264 Van Velthoven H (1989) The relationship between Flanders and Brussels from 1830 to 1980, Mechanisms of power in a historical context. In: Deprez K (ed) Language and Intergroup Relations in Flanders and in the Netherlands. Foris Publications, Dordrecht, pp 11–28 Van Wynsberghe C (2013) Institutional complexity as consensus model. In: Corijn E, van de Ven J (eds) The Brussels reader: a small world city to become the capital of Europe. VUBpress, Brussels, pp 94–107 Van Ypersele J (1997a) The Institutional Balance in Brussels. The Influence of the Bounds that Bind the Brussels Inhabitants to their Respective Community. In: Detant A (ed) Brussels - Jerusalem: conflict management and conflict resolution in divided cities: a comparative research project. VUB Centre for the interdisciplinary study of Brussels, Brussels, pp 17–39 Van Ypersele J (1997b) The Protection of Linguistic Minorities in Brussels and its Outskirts. In: Detant A (ed) Brussels - Jerusalem: conflict management and conflict resolution in divided cities: a comparative research project. VUB Centre for the interdisciplinary study of Brussels, Brussels, pp 57–81 Vande Lanotte J, Bracke S, Goedertier G (2006) Belgium for beginners: a guide through the Belgian labyrinth. Die Keure, Bruges Witte E (1987) Socio-Political Aspects. Bilingual Brussels as an Indication of Growing Political Tensions. In: Witte E, Baetens Beardsmore H (eds) The interdisciplinary study of Urban Bilingualism in Brussels. Multilingualism Matters, Clevedon, pp 47–74

Johan Lievens is an Assistant Professor in Constitutional Law at VU Amsterdam, and an affiliated Senior Researcher at the Leuven Centre for Public Law (KU Leuven). He wrote a Ph.D. thesis on the constitutionally protected freedom of education. His research and teaching involves Dutch and Belgian constitutional law, education law and discrimination law, with a particular focus on

4 Reanimating Brussels—The Beating Heart of the Belgian Federation

75

Belgian federalism and LGBTI+ rights. He obtained a Master’s Degree in Law at the KU Leuven (2013, magna cum laude) and an LLM at Harvard Law School (2016). Karel Reybrouck is a Ph.D. researcher in Constitutional Law and Federalism at the Leuven Centre for Public Law (KU Leuven). He is writing his doctoral thesis on the division of powers in federal systems, with a particular focus on Belgium and the European Union. Karel was a visiting researcher at Max Planck Institute for Comparative Public Law and International Law (2018) and the Centre for Asian Legal Studies at NUS (2020). He co-authored a book on the federal powers in Belgium (Intersentia, 2019) with his doctoral supervisor Stefan Sottiaux. Karel Reybrouck is involved in the organization of tutorials, seminars and master theses in the field of Belgian public law and comparative constitutional law. He obtained his Master’s Degree in Law at KU Leuven (July 2015, magna cum laude).

Chapter 5

How Much Local Autonomy Is Good for a City? An Analysis of the Peruvian Constitutional Design for Cities and Its Effects in the Case of the Lima Metropolitan Area Alberto Cruces Burga and Andrés Devoto Ykeho

Contents 5.1 Introduction and Context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Constitutional Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 Background of the Constitutional Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Constitutional Model . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Problems and Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.1 Lima and the Metropolitan Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3.2 Implications of the Fragmentation of the Lima Metropolitan Area . . . . . . . . . . . 5.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

78 81 81 83 88 88 91 96 96

Abstract The decentralization reform that started in Peru in 2002, which divided the country into regions, provinces and districts, was initially regarded as a just and long-postponed project. However, while the constitution grants all local governments political, economic and administrative autonomy, the rapid population growth many cities have experienced since then calls for the reevaluation of the whole design. This is especially the case for the Lima Metropolitan Area, of which the population has more than doubled since the 1980s. This chapter analyses the effects that being divided into various autonomous districts can have for the governance of a metropolis. We argue that the division causes practical difficulties for reasons rooted in the Peruvian constitutional design, and that this fragmentation hinders the provision of public services, reduces long-term planning and may cause spending inefficiencies. A reexamination of this flawed constitutional design for its cities could be the first A. Cruces Burga (B) · A. Devoto Ykeho Pontificia Universidad Católica del Perú, Lima, Peru e-mail: [email protected] A. Devoto Ykeho e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_5

77

78

A. Cruces Burga and A. Devoto Ykeho

step for Peru to finally adapt to its new urban reality as well as to keep up with future changes. Keywords Decentralization · Local government · Municipal autonomy · Urban governance

5.1 Introduction and Context After the start of the major decentralization reform in 2002, Peru is currently divided into three different levels. First, into 25 regions (formerly known as ‘departments’), each region is then sub-divided into a number of smaller provinces, and finally, each province is then divided into even smaller constituencies called districts. In total, there are 1874 districts in the country, each governed by local mayors with some exclusive and some shared political and administrative competences over their territories. The Lima Metropolitan Area has 50 districts: 43 of them in Metropolitan Lima, and seven more in the Constitutional Province of Callao. At the same time, while Peru is a unitary and decentralized state, its constitution explicitly grants local governments with political, economic and administrative autonomy as well as with the ability to issue norms at the same hierarchical status as those passed by Congress. However, this broad model of autonomy, even when seemingly fair and legitimate at the time it was first established, is now once again under evaluation, as migration and rapid population growth in the main cities have continued to create new challenges. This is particularly the case in the Lima Metropolitan Area, of which the population has more than doubled since the 1980s to over 10 million citizens. To create new districts in Peru, a complex political-bureaucratic procedure must be followed. Local governments, in representation of the Executive, need to receive a proposal from a group of citizens or civil society organizations. The proposal is then evaluated and sent to the Office of Territorial Demarcation at the Office of the Presidency of the Council of Ministers, where it is validated and finally forwarded to Congress, where it can be voted into a law. The final result thus depends largely on the discussion which takes place in Congress, so the role of this actor is highly important in the process. Debates on these proposals can be accelerated if the matter is declared as one ‘of interest’, a strategy with no legal effects, but which can help politically. Attempts to create new constituencies can be motivated by legitimate and by not so legitimate interests. Within the former, for instance, these initiatives might be driven by a dissatisfaction of the people from some part of their current constituency. Regarding the latter, these attempts could also be motivated by populist and electoral purposes, logrolling, or political negotiations between the executive and local communities in the context of ongoing social conflicts. Although there are already 1874 districts in Peru, there are also many more attempts ongoing to continue creating new autonomous districts. According to the

5 How Much Local Autonomy Is Good for a City? …

79

Grupo de Análisis Político 50 + 11 (50 + 1 Political Analysis Group), one of the key contributors for the atomization of the territory particularly in highland provinces is Mining Canon: a government subsidy provided to territories with active mining camps. In Cusco, the region with the greatest number of projects proposing to declare as ‘of interest’ the creation of new districts, there are (as of May of 2020) 16 bills proposing to declare ‘of interest’ the creation of new districts, 12 of them in La Convención, where one of the biggest gas exploitation projects in the country (Camisea) takes place. Two other districts have also been created near there recently. A similar situation can be observed in Cajamarca, another province in the Peruvian highlands. Of 14 projects presented to Congress to declare ‘of interest’ the creation of districts as of May of 2020, seven corresponded to provinces where the Buenaventura mining company has ongoing operations. Just counting from 2016 to the end of 2019, a total of 112 bills have been presented to Congress to declare ‘of interest’ the creation of new districts, 10 of which have been passed into laws as of May of 2020.2 Although as stated earlier, these laws are not binding, the willingness of many politicians and communities to further atomize the Peruvian territory can be recognized in the number of initiatives. And Lima has not been oblivious to this national trend. In territorial terms, the conurbation comprising the Lima Metropolitan Area is immersed in the Lima–Callao Macrosystem, within a program called ‘Sistema Nacional de Centros Poblados’ (National System of Villages). This conurbation has the urban hierarchy of National Metropolis of first range, and it constitutes the Main Dynamizing Center of the country. In political and administrative terms, the Lima Metropolitan Area is the capital of the country, and it has a special regime granted by the Constitution. According to it, the city of Lima is not part of any other region, and it can be divided in two different ways. First, between Metropolitan Lima and the Constitutional Province of Callao and, second, between the metropolis and the 43 districts. On the one hand, although it is in practice one urban continuum with very similar problems and challenges, the Lima Metropolitan Area is divided into two subnational governments with similar powers: The Metropolitan Municipality of Lima and the Provincial Municipality of Callao. On the other hand, the Lima Metropolitan Area is also divided into 43 autonomous districts, each of them governed by a local mayor. From the pool of 64 metropolitan areas of Latin American and Caribbean cities studied by Lafranchi and Bidart, it could be observed that these were administratively divided into between one and 75 local governments, the average being 15.6 local governments per metropolitan area.3 In the study, Lima shares the second position, together with Belo Horizonte, as the metropolitan area with the largest number of autonomous municipalities (only outnumbered by Valle de Mexico). In fact, Lima is part of the 6% of metropolises presented by the cited authors as ‘very fragmented’.4 1 Perú

21 2019. 21 2019. 3 Lafranchi and Bidart 2016, p. 29. 4 Lafranchi and Bidart 2016, p. 42. 2 Perú

80

A. Cruces Burga and A. Devoto Ykeho

Despite this situation, during the past few decades attempts to keep on atomizing the territory of the Lima Metropolitan Area have continued to be presented. One of this has been the proposal to create the province of San Juan de Lurigancho, currently the district with the largest population inside the Lima Metropolitan Area (over 1 million), as well as the creation of new districts such as those of Cercado, Santa María from Huachipa, or Huaycan. In Callao, in turn, an initiative is gradually emerging to turn the Ventanilla district into a province. And in 2014, the new district of Mi Peru was created inside the Constitutional Province of Callao. The history of the creation of districts in Lima is long-standing, and has been linked directly to populist promises, as well as to disputes and political negotiations.5 Regarding Callao, for instance, Luis Felipe Gamarra—citing Basadre—mentions that it was the three times president of Peru Ramón Castilla who granted Callao with the title of ‘Constitutional Province’, as a way of thanking locals for having faced the attempted rebellion of General Manuel Ignacio Prado de Vivanco.6 Another example of how arbitrary the criteria were to create new districts in Lima is the case of San Martin de Porres, originally created by the then president Manuel Odria (1948– 1956) for proselytizing purposes. Originally, the district was named ‘27 de Octubre’ (October 27th), in honor of the date of Odria’s military coup, and the dictator even established close ties with the inhabitants of this neighborhood.7 The name of the district only changed in 1962, after the beatification of Peruvian lay brother Martin de Porres. To understand the implications of this institutional design for the administrative division of the Peruvian territories, particularly for the city of Lima, this chapter will mainly analyze two issues. The first one is linked to the constitutional framework: what are the key principles behind these calls for more territorial divisions? Local government, municipal autonomy, decentralization, subsidiarity and forms of government will be all key concepts to consider in order to understand the relationship between the state’s institutional design and the territory. Then, a second point of analysis will be the particularities and implications of the existing fragmentation in Lima as a metropolis. We hope this analysis can help build a roadmap for Peruvian constitutionalism to follow in order for the country to cope with its new urban scenarios.

5 Rodríguez

and Espinoza 2017, pp. 83–84. 2019. 7 Calderón 2016, p. 147. 6 Gamarra

5 How Much Local Autonomy Is Good for a City? …

81

5.2 Constitutional Model 5.2.1 Background of the Constitutional Model Some key historical and political background information is important to fully understand the Peruvian constitutional model for its local governments. First, the country has traditionally been both very centralized and politically authoritarian, and this has had consequences in the way local governments have been shaped. Local government organizations in Peru are old institutions of which the origins date back to the Spanish colonial years, when the Hispanic institutions merged with some pre-existing local organizations. Municipalities in their current configuration in the Peruvian constitution have been one of the republican institutions which have undergone more changes, perhaps because it was constituted outside the Constitution. Municipalities only started to have elected positions in 1980. Even though before then Peru had some important experiences with local governments, the last military dictatorship the country had (1968–1980) caused that we could only talk about a continuity of local governments since the introduction of the 1979 Constitution (the previous to the currently valid document). That constitution made a radical break with all of the previous models because it explicitly granted numerous powers to local governments, some of the most outstanding were the possibility of creating, modifying or eliminating taxes, duties and rights; organizing, regulating and managing local public services; planning the development of its constituencies, etc. Municipalities were thus considered as the key organs of local government, for which economic and administrative autonomy was also reserved by the constitution itself.8 According to McNulty, “[f]rom the democratic elections in 1980 until 1984, there was little movement toward pushing decentralization forward. This changed in 1984 when the Belaunde government developed a National Regionalization Plan and Congress passed several laws to clarify the nature of subnational governments (for example, Laws 23,853, 23,878, and 24,030)”. He added that “local governments were set up formally for the first time; however, they had very little real power and were administratively weak” at the time.9 The failure of this sort of decentralist experiment of the 1979 Constitution installed in part of the public opinion the perception that decentralization was an irrelevant objective.10 As Vergara recalls, “with the autogolpe [self-coup d’état] of 5 April 1992 [when the then president Alberto Fujimori decided to shut down Congress and other institutions using the force of the military], Fujimori dissolved regional governments along with all the major democratic institutions. No social actor in the periphery came out in their defense. The breakdown of democracy was closely intertwined with the definitive failure of the decentralist attempt”.11 According to Zas Fritz, the self-coup 8 García

Belaunde 2017, p. 39. 2011, p. 28. 10 For a better identification of some of the consequences of centralist praxis, see Blume 2017, p. 74. 11 Vergara 2014. 9 McNulty

82

A. Cruces Burga and A. Devoto Ykeho

introduced, in addition to the dissolution of Congress and the intervention of other institutions, a process of centralization, considering elements as the initial suppression of the regions, the creation of the ‘Consejos Transitorios de Administración Regional’ (Transitional Councils of Regional Administration) and the creation of a new Law of Municipal Taxation.12 This centralization process went on for about a decade and it resulted in the concentration of a series of powers competences in the central government, as well as in the affiliation of various public institutions to the Ministry of the Presidency. This ministry adopted institutions such as the Corporación de Desarrollo de Lima-Callao (Lima-Callao Development Corporation) and the Water and Sewerage Utilities, thus generating a dependency for Lima and other municipalities with the national government.13 The Constitution of 1993 incorporated two major reforms regarding the municipal system inherited from the 1979 Constitution and the Organic Law of Municipalities of 1984. The first one was the express recognition of the political autonomy of local governments. This measure, however, had no real effect during the 1990s, because the centralist discourse of the government neglected any real expression of autonomy. Most of the relevant competences were granted to the national government. The second change was the recognition of different municipal regimes responding to the diversity of territories in Peru. Thus, special regimes were established for provincial capitals of metropolitan range, capitals of departments with border location, the Constitutional Province of Callao and border provinces. This differentiation managed to break the uniformity of municipalities, adapting structures to different requirements according to each reality.14 All in all, the constitutional design of 1993 was not radically different from that of the 1979 constitution. However, the way how the rules and guarantees included in the constitutional text were put in practice was insufficient and even directly centralist. Closer to Fujimori’s second term in power (1995–2000), a discourse rescuing the political autonomy of municipalities started to gain traction against the authoritarian centralism of the government, which continued to concentrate powers at that time. Regional governments had not been restored and their political competences were being exercised by representatives of the President, so at that moment local governments at the district and province levels were the only space for elected representatives, entitled to respond to the national government. Particular tensions flourished during these years between Fujimori’s government and the then-mayor of Lima Alberto Andradre, who emerged as a challenger to Fujimori in the 2000 election. After the fall of Fujimori in 2001 following a corruption scandal, many projects to reform the state started to take place, and the much-desired decentralization was one of the main issues on the national agenda. Yet, after the process started the following year, it had severe problems due to, among other reasons, a poorly carried out regionalization process. Even so, the Ley de Bases de la Descentralización (Decentralization Law), which served as the spark to start the process, was the base for the current 12 Zas

Friz Burga 1998, p. 261. pp. 263–267. 14 Zas Friz Burga 1998, p. 488. 13 Ibid.,

5 How Much Local Autonomy Is Good for a City? …

83

constitutional model, and it was later complemented with some additional regulations that strengthened the autonomy of municipalities. At that time, the Constitutional Court also played a relevant role in developing many of the concepts that are still part of the legal framework that local governments currently base on to exercise their powers.

5.2.2 Constitutional Model Traditionally, the form of government in Peru15 has been that of a unitary state, under the direct influence of the traditional French model. The federalist debate ended quickly in the nineteenth century and was not resumed ever again. It became clear throughout the rest of the Peruvian history that the country was ruled from Lima, and that the national government did not delegate its power. In the best scenarios, the technique of ‘deconcentration’ (transferring administrative competences and responsibilities to local offices acting as representatives of the government, but without creating new autonomous entities)16 was applied, so that some issues were carried out by subnational levels of government. However, this situation changed following a serious commitment to decentralization that took off after Fujimori’s fall, which was legally put into practice after the start of the decentralization process in 2002. The decentralization project assumes until now that this concept ‘(…) is not only a democratizing instrument of power and a guarantee for freedom, but also it can be a better organizational technique to solve public affairs.’17 More specifically, as Alvites points out, decentralization as a State policy is valued for several reasons: (…) for its contribution to the promotion of economic development, because with decentralization it ceases to be the task of a single level of government that does not always have the capacity to reach the entire territory and its population; for its contribution to narrowing the gaps in access to services, exercise of rights and equality among people who inhabit different territorial districts; because along with the election of authorities at the decentralized level and, in some cases, the participation of citizens in public management, democracy deepens; and, because as a form of state organization it facilitates the control of the territory.18 15 The meaning of the Form of Government is the one collected by Naranjo taken from Biscareti: “reciprocal position of the classic elements of the State: power, people and territory”, while reference is made to the form of allocation of political power in the territory of a State. Naranjo 2003, p. 287. 16 According to Hauriou, deconcentration will, in the end, be a form of centralization if it is limited to transferring administrative competences. According to this author, deconcentration is a technique of authority, while decentralization is a technique of freedom. The second one refers to self-administration, insofar as it transfers powers to the local level for the benefit of representatives elected by the citizens themselves. See Hauriou 1980, p. 185. 17 De Vega, Pedro. Constituent Power and Regionalism. In: Trujillo, Gumercindo (comp.). Federalism and Regionalism. Madrid, 1979. p. 354 quoted by Tribunal Constitucional del Perú. Miguel Ángel Mufarech in representation of more than five thousand citizens v. Congreso de la República. Judgement of 18 May 2005. 00,002-2005-PI/TC, para 40. 18 Alvites 2014, p. 58.

84

A. Cruces Burga and A. Devoto Ykeho

Part of the new discourse was also a new validity of the principle of subsidiarity, which came to be interpreted by the Constitutional Court as a principle for conflict resolution, but also as the base for the decentralization process. On that matter, Court defined that: Vertical subsidiarity refers to the relationship between a major system -which can be a national or central organization- and a minor system -which can be local or regional organizations-, according to which the first one can only intervene in those areas that are not the responsibility of the minor order. This orientation is closely related to public services and economic-social development.19

In other words, the Constitutional Court has interpreted the Peruvian constitution and granted meaning to the “Unitary and Decentralized State” formula, differentiating the Peruvian State form from the classic Unitary State. The constitutional interpretation made for such purpose was based on article 43 of the Peruvian constitution, which describes the state as unitary, representative and decentralized, an order that the Constitutional Court calls to read in coherence with articles 189, 191 and 194.20 Article 189 of the charter refers to constituencies of government: it is provided that regional level of government consists of regions (and departments), while local level of government consists of provinces, districts, and villages (although the latter have no politically recognized elected authorities). Articles 191 and 194 describe the basic structure of regional and local governments, granting them autonomy. The interpretation assumed by the Constitutional Court takes into account, therefore, not only the existence of subnational entities throughout the national territory, but also the political power within these entities, which grants them the authority to deal with their affairs autonomously. For the Peruvian Constitutional Court, Peru is not a state that has simply transferred administrative powers without true autonomy, so that the national level of government is the one which establishes and carries out the rules. On the contrary, it defines that as a unitary and decentralized state, Peruvian subnational governments (both regional and local) have not only administrative autonomy, but also economic and political autonomy. The autonomy included in the 1993 constitution is defined in the decentralization law,21 as “(…) the legal right and effective capacity of the government at its three levels, to regulate, govern and administer public affairs of its constituency. It is based 19 Tribunal Constitucional del Perú. Roberto Nesta Brero in representation of more than five thousand citizens v. Poder Ejecutivo. Judgement of 11 November 2003. 00008-2003-PI/TC, para 19. 20 Tribunal Constitucional del Perú. Presidente de la República v. Gobiernos Regionales de Cusco y Huánuco. Judgement of 27 September 2005. 00020-2005-PI/TC, paras 34–38. 21 The interpretative value of the Decentralization Law (LBD, in Spanish) is high in Peru due to the establishment of the constitutional body of law. As the Constitutional Court itself acknowledges: “(…) there is a “natural” parameter of the constitutionality control of regional decrees, which is composed of the Constitution, the LBD and the LOGR (Organic Law of Regional Governments). But also, in the case of the regulation of certain matters, the constitutional body of law may be additionally conformed by other national laws. In these cases, these norms are part of what could well be called the "eventual" constitutionality parameter.” Tribunal Constitucional del Perú, 020-2005-PI/ TC, para 71.

5 How Much Local Autonomy Is Good for a City? …

85

on strengthening in the people and institutions the responsibility and the right to promote and manage the development of their constituencies, within the framework of unity of the nation”. In this definition the emphasis on granting autonomy in each level of government existing in Peru (national, regional and local) is quite suggestive. It is already expressed in the constitution but is also highlighted in this law. The Constitutional Court has expressly referred to the autonomy of local governments by giving it a double condition. On the one hand, in a positive sense, it has defined this autonomy as the capacity to function freely in matters assigned by the constitution or the law.22 Similarly, and with a greater relevance for the purposes of this investigation, the Court has given local autonomy the status of institutional guarantee. In other words, it defines ‘autonomy’ as a form of protection against legislative abolition,23 and it prevents lawmakers from ignoring it or rendering it devoid of content. In short, the autonomy principle protects local governments from excesses that could be committed by actions or omissions of other state institutions.24 In that regard, the Court also included a political autonomy definition in the decentralization law, which states that local governments are: “(…) authorized to adopt and agree on the policies, plans and norms in matters related to their competence, adopt and issue their norms, decide through their governing bodies and develop functions that are inherent to them”, a definition that since then has appeared repeatedly in the case law related to municipalities.25 It is also important to highlight the administrative autonomy of local governments, which gives them freedom for or internal organization as well for determining and regulating local public services, within their areas of responsibility. Finally, about economic autonomy, it is defined as the power to create, collect and manage their own revenue and income.26 All in all, it is clear that the Peruvian constitutional model for local government encourages the existence of a strong municipality with the capacity to sustain itself against the onslaught of other state agencies. Additionally, it is possible to add to these characteristics of autonomy one additional element of evidence of the strength that the constitution has given municipalities: the municipal decree.27 22 Tribunal Constitucional del Perú. Alcalde de la Municipalidad Provincial de Huaraz v. Congreso de la República. Judgement of 4 May 2009. 00028-2007-AI/TC, para 5. 23 Landa 2002, p. 62. 24 Tribunal Constitucional del Perú. Alcalde de la Municipalidad Provincial de Huaraz v. Congreso de la República. Judgement of 4 May 2009. 00028-2007-AI/TC, para 5. The reference to the problem of law-makers regarding the local autonomy and not the government autonomy seems to be an inheritance of the Spanish influence, also with German origins, by which the concept of institutional guarantee is assumed. See, among others, Esteve Pardo 1991. 25 Recently in Tribunal Constitucional del Perú. Municipalidad Provincial de Satipo v. Municipalidad Distrital de Río Negro. Judgement of 12 January 2019. 00025-2014-PI/TC, para 16. 26 Tribunal Constitucional del Perú. Alcalde de la Municipalidad Provincial de Huaraz v. Congreso de la República. Judgement of 4 May 2009. 00028-2007-AI/TCp, para 8. 27 While we have highlighted a constitutional model that empowers the municipality, it is still necessary to point out, following Zas Friz, that “to determine whether a state decree is decentralized or not (and if so, what is its grade and its character), one of the most important objectives of an investigation is to verify that a mainly political and financial autonomy corresponds, or not, to local

86

A. Cruces Burga and A. Devoto Ykeho

The municipal decree is the legal norm approved the municipal councils (organs formed by each mayor and their municipal councilors), either by proposal of one of the councilors or the mayor, and thus regulates municipal issues. The particularity of this norm in the Peruvian scenario is that it has the status of a law, just as one approved by the national Congress (only of different competence), by provision of the constitution. This characteristic is coherent with other constitutional provisions. For instance, article 32 establishes the possibility of submitting the approval of a municipal decree to a referendum, which is typically reserved for the approval of ordinary laws or constitutional reform laws. Similarly, article 196 of the Constitution enables municipalities to create taxes through municipal decrees, an action also traditionally reserved for laws of the Parliament or Congress. It is not, therefore, coincidental that many of the questions about municipal policies, as well as many competing disputes between different levels of government, have moved to the field of constitutional justice. These issues range from the territorial demarcation of villages,28 the collection of municipal duties,29 the elimination of bureaucratic barriers,30 the regime of public assets,31 the regulation of public transportation and traffic,32 the freedom to engage in business, and opening hours of services,33 among many others. Finally, one last important element of the Peruvian constitutional model lies in the uniqueness of the city of Lima. Article 198 of the constitution has established that the capital does not belong to any region, but enjoys a special treatment in which the Metropolitan Municipality exerts jurisdiction within the territory of the province of Lima. In that sense, the Organic Law of Municipalities details the relationship between the Metropolitan Municipality of Lima and the 42 district municipalities that belong to its territory. Article 154 of said law states that Lima exerts jurisdiction over matters within its competence over district municipalities in the territory of Lima, thus, the relationship is one of distribution of competences rather than one of hierarchy.

authorities and to the intermediate level”. This verification corresponds, of course, to an analysis of how the law is applied, and not only of applicable standards. See Zas Friz 2001, p. 27. 28 Tribunal Constitucional del Perú. Municipalidad Provincial de Puno v. Municipalidad Provincial General de Sanchez Cerro. Judgement of 22 February 2017. 00019-2013-PI/TC. 29 Tribunal Constitucional del Perú. Colegio de Abogados de Lambayeque v. Municipalidad Provincial de Chiclayo. Judgement of 5 June 2018. 00017-2012-PI/TC. 30 Tribunal Constitucional del Perú. Municipalidad Metropolitana de Lima v. Poder Ejecutivo. Judgement of 23 May 2011. 00031-2010-PI/TC. 31 Tribunal Constitucional del Perú. Municipalidad Distrital de Surquillo v. Municipalidad Distrital de Miraflores 00003-2007-PCC. 32 Tribunal Constitucional del Perú. Colegio de Abogados de Ica v. Congreso de la República. Judgement of 21 November 2007. 00027-2010-PI. 33 Tribunal Constitucional del Perú. Ernesto Emilio Laynes Campoblanco v. Municipalidad Distrital de Pichari. Judgement of 21 September 2010. 00016-2009-PI and Tribunal Constitucional del Perú. Asociación de Comerciantes San Ramón y Figari v. Municipalidad Distrital de Miraflores. Judgement 22 June 2007. 00007-2006-PI.

5 How Much Local Autonomy Is Good for a City? …

87

The model also includes an Asamblea Metropolitana de Lima (Lima Metropolitan Assembly), which was initially thought to be the main coordination and representation body and is therefore composed of the mayor of Lima, the 42 district mayors and some members of the civil society. However, it only meets twice a year and its functions are strictly consultative, with no binding effects. Moreover, as its own regulation indicates, if there are no agreements by consensus among its members, it is possible to neglect their opinions.

5.2.2.1

The Interpretation of Article 194 of the Peruvian Constitution

Article 194, as we have pointed out, is a particular article insofar as it establishes the political autonomy of local governments. Textually, the relevant provisions state the following: P1. Provincial and district municipalities are bodies of local government. P2. They enjoy political, economic, and administrative autonomy on the matters within their constituency.

From both statements we can understand that both provincial and district municipalities have political, economic and administrative autonomy. The norms and case law that we have reviewed follow precisely this understanding, although provinces, and specially regions, are constituencies that regularly include a larger population and larger areas than districts, which make up their territory. The effects and relevance of this interpretation will be analyzed in the following section. However, we consider it necessary to highlight that during the past decades most legal interpretations in the country have considered that all levels of government have the same kinds of autonomy, without exception or nuance. It is also important to note that the law-maker has interpreted the decentralization process as irreversible, so that the autonomy already granted could not be withdrawn.34 As a result of all of the above, we can identify a unique situation in the city of Lima. The application of the constitutional norm and its interpretations lead to the following political scenario of local government: the Metropolitan Municipality of Lima, the 42 district municipalities of Lima, the Regional Government of Callao, the Provincial Municipality of Callao and the 7 district municipalities of Callao coexist in one chaotic city. All these entities have political, economic and administrative autonomy.

34 Article

4, para c), of the Decentralization Law states the following about decentralization: “c) It is irreversible: The process must guarantee, in the long term, a country; spatially better organized, population ally better distributed, economically and socially fairer and more equitable, environmentally sustainable, as well as politically institutionalized.” The stated objectives do not seem to be related to the idea of irreversibility, however, the principle exists as such and could not cease to be applied.

88

A. Cruces Burga and A. Devoto Ykeho

5.3 Problems and Implications 5.3.1 Lima and the Metropolitan Governments As noted earlier, the latest Constitution provided for differential treatment of local governments. One of these differentiated treatments in the Organic Law of Municipalities is for the government of the Capital. This is because of the great complexity involved in the governance of metropolitan areas. In this context, all big cities that host large agglomerations have had different responses to these complexities. To Lafranchi and Bidart, there are three school of thought that try to explain and propose institutional frameworks that address problems of these metropolitan areas: Public Choice theorists, informalists and centrists.35 According to Lafranchi and Bidart, the first are represented by authors such as Tiebout, Ostrom, Ostrom, Parks and Oakerson.36 This school, more focused on Europe and the United States, argued that the metropolitan governance model should be shaped from fragmented or polycentric arrangements.37 For this school, this type of institutional agreement works best for three reasons. First, because local governments, being closer to the population, (i) represent the population’s preferences optimally. In the same way, this would allow (ii) greater neighborhood participation and (iii) better monitoring in the delivery of services.38 Therefore, the fact that there are many constituencies within a metropolitan area would be a positive aspect as they would compete to attract more neighbors. Thus, depending on the efficient provision of local public services, citizens will choose one constituency or another. Then there are the informalists, such as Carr and Feiock, Moisio and Uusitalo, Marin and Hock Schiff and Aulich (Lafranchi and Bidart39 ). This group believes that the best way to ensure metropolitan governance is to consolidate local governments,40 by reducing the complexity of metropolitan governance structures. Informalists, unlike Public Choice theorists, make more of the impact on informal coordination mechanisms between local authorities as means to ensure the effective provision of public services and assume the complexity and fragmentation of cities.41 These coordination mechanisms include councils of mayors, associations of municipalities, among other common-interest groups. As for coincidences between the two currents, both share the idea of local governments as ‘proximity governments’, which allow authorities to know the interests of the citizens to better manage their public issues. Regarding this concept, Blanco

35 Lafranchi

and Bidart 2016, p. 8. p. 9. 37 Ibid., p. 8. 38 Ibid., p. 8. 39 Ibid., p. 9. 40 Lafranchi and Bidart 2016, p. 9. 41 Ibid. 36 Ibid.,

5 How Much Local Autonomy Is Good for a City? …

89

and Goma42 explain it in contrast to the traditional, hierarchical and centralized government. The proximity government, according to them, would be a solution that promotes citizen participation, deepens the decentralization of decision-making and integrates a more citizen-centered approach. This is because, as we mentioned earlier, they have an adequate position to know their needs, solve their conflicts and ensure interests in an efficient manner.43 If we put ourselves in the situation of how to solve a neighborhood problem, related for example to the noise made by a local club at certain times of the night or to the collection of garbage in certain points of the district, the municipality will be the first entity to which neighbors will incur to claim such facts. Not necessarily for the distribution of competences, but for being the closest authority to them. This is the approach that has also prevailed in the constitutional perspective outlined and collected by the Constitutional Court through the principle of subsidiarity, as explained in the previous section. However, in the case of big cities and metropolises, Grin, Hernández and Abrucio wonder if it is possible to talk about ‘proximity governments’ in a megacity with 10 million inhabitants,44 as is the case with Lima. It is here that the third current, called the centrist, becomes relevant. This current, represented by authors like Piercie, Orfield, Savitch and Vogel (Lafranchi and Bidart45 ), argues that administrative fragmentation in metropolitan areas drives regional inequality and urban sprawl. Therefore, they believe that the governance structure has to adapt to the new reality of urban agglomerations, a reality that has problems that exceed administrative boundaries of the municipalities.46 Following the centrists, we identify two pending challenges for metropolitan governance in Lima. First, the effects that its institutional structure would have on the future settlement patterns of the territory. Second, we identify that the overlaying scales of competence of local governments would present difficulties for metropolitan governance. To corroborate the theory described above, it is necessary to develop the different existing metropolitan governance models to identify which model matches Lima’s and its degree of fragmentation. For Valenzuela, there are two types of aspects. On the one hand, we find the perspectives that enhance the understanding of an authority superior to the municipalities. On the other hand, there are the perspectives that enhance the idea of coordination and complementation of the municipalities. These two options for solving problems in metropolises coincide in the fact that it is not coherent for central and national state authorities to decide on metropolitan areas.47 This is related with our previously developed concept of municipal autonomy. It is an autonomy presented as an institutional guarantee against the national government, but also as a faculty to arrange the policies of its competence. 42 Quoted

in Grin et al. 2017, pp. 13–14. et al. 2017, p. 13. 44 Ibid., p. 15. 45 Lafranchi and Bidart 2016, p. 9. 46 Ibid., p. 9. 47 Valenzuela 2006, p. 6. 43 Grin

90

A. Cruces Burga and A. Devoto Ykeho

Citing the United Nations Metropolitan Governance report of 1995, Valenzuela48 identifies four government structures, a centralized structure and three variants of a decentralized structure. On the first, the centralized structure is reflected when a single municipal government administers the city and its mayor is directly appointed by the central government. Regarding the variants of decentralized systems, we have (i) decentralized with several levels, (ii) decentralized and fragmented, but coordinated; and (iii) decentralized, fragmented and uncoordinated. What distinguishes the last two are the spaces and cooperative systems between the different levels of government functions in the municipalities of the metropolitan area. On the classification of metropolitan governments, Grin, Hénandez and Abrucio affirm the following: We see then that our analysis yields four categories of major cities with respect to its level of decentralization and its institutional structure: cities that maintain its municipal structure, by deconcentrated definition where all the power over the city lies with the mayor and the municipal council; cities that have a special character in relation to the rest of the country’s municipalities, mostly formed as special districts that have the relevance of an intermediate government in their national context, which can be divided between special deconcentrated districts (where municipal structure is maintained despite their special character) and special decentralized districts (where territorial structures have political autonomy, but are still tied to the provisions of the city government in economic and administrative matters); finally, there are cities with a higher level of decentralization, with sometimes complete autonomy of territorial subdivisions against supramunicipal structures (metropolitan governments or higher levels of government) and whose government is fragmented (where different levels of government and various institutions converge, not always in a coordinated manner) in the government of the entire city.49

The classification of Grin, Hernández and Abrucio coincides with those of the United Nations Report on identifying deconcentrated, special or multi-level and decentralized governments. In this sense, given the form of government described above and according to the classifications previously described, we can affirm that Lima has a fragmented, decentralized and uncoordinated government. From the changes made by the 1993 Constitution, described above, all local governments have political autonomy. Therefore, territorial subdivisions such as districts have municipalities with full autonomy against the Metropolitan Government represented by the Metropolitan Municipality of Lima, thus being able to legislate and govern their territory with respect to the granted powers. This fragmented, decentralized and uncoordinated structure presents some complications for the fulfillment of metropolitan functions and tasks. Regarding the government areas of big cities, cited in Vial, Orellana states that: Beyond the structure acquired by the government of a metropolitan city, it must be articulated based on three major tasks, extrapolated to any type of government. These are: (a) governability, given by the institutional capacity to make decisions that affect the political, public and private framework of the city; (b) planning, as an instance of inter-level government and intersectoral coordination with powers and mandate from the city government; 48 Valenzuela 49 Grin

2006, pp. 6–7. et al. 2017, pp. 22–23.

5 How Much Local Autonomy Is Good for a City? …

91

and (c) management, through provision of programs, policies and services, public-private investment and public articulation (Orellana, 2013ª).50

A critical point that we find with fragmented structures is the lack of agency or ability to efficiently fulfill their tasks. Regarding the validity of metropolitan governments, Berg uses a theoretical framework that establishes a set of criteria based on what is called “organizational capacity.” This concept, affirms Berg, is the ability to create strategic networks among all the relevant players and thus be able to cope with the complexity in the governance scheme. Therefore, a government will have organizational capacity primarily if it is democratic, efficient and has an adequate spatial scale. Only then can comprehensive policies be developed.51 In the case of Lima, according to Bensa, the institutional design of the metropolitan area is based on administrative and non-functional criteria that does not take into account all the real interdependencies between Lima and Callao. This design has affected one of the criteria that give validity to the government of a major city: spatial scale. For Bensa, this institutional design has caused a conditioning within the reach of public policies and government capacity of this great conurbation.52 Responses to this problem in the specific case of transportation has been the recent creation of the Autoridad de Transporte Urbano de Lima y Callao (Urban Transportation Authority of Lima and Callao). This authority aims to organize and implement the Sistema Integrado de Transporte Lima y Callao (Lima and Callao Integrated Transportation System) in a situation where many entities of different levels of government faced the problem of urban mobility separately. The positive side is that this entity, by hosting representatives of the Metropolitan Municipality of Lima, the Provincial Government of Callao and the Ministries of the Central Government, generates conditions of articulation and coordination. However, the negative side is that said authority is attached to the National Government and its Board of Directors is chaired by the Ministry of Transport, ignoring the decentralization process previously developed. In addition to the fragmentation caused by the existence of two provincial governments of the same rank, we identify the level of fragmentation caused by the existence of 42 district municipalities with full autonomy that make up the Lima Metropolitan Area. Consequences of these fragmentations will be developed later.

5.3.2 Implications of the Fragmentation of the Lima Metropolitan Area There is a direct relationship between the expansion of the metropolitan urban area, the creation of new territorial constituencies and the limitations and conditioning for a good governance. In general terms, according to Valenzuela, international experience 50 Vial

2017, p. 264. 2002, p. 417. 52 Bensa 2017, p. 243. 51 Berg

92

A. Cruces Burga and A. Devoto Ykeho

on the subject makes it possible to affirm that metropolitan governments can undergo certain changes, one of them being done within the scope of their constituencies. The explanation given is that the extension of the territory where the city government has legal powers is caused as a result of the extensive growth of the city.53 Following the centrist current explained above, Valenzuela concludes that: When the agglomeration exceeds the administrative limits of the city, autonomous suburbs and institutionally and administratively fragmented conurbations are generated. This fragmentation has institutional, political and economic consequences: the number of local governments, municipalities grows as a simple product of urban expansion.54

Oriol Nel-lo confirms the theory of centrists in the Spanish case. In accordance with the work of Roca Caldera and Clusa, over the last years, the functionally integrated space in each of the Spanish metropolises had grown in all cases, always causing a growing number of municipalities.55 This trend is similar to the Mexican case. For Iracheta, the responses to the phenomenon of metropolization have been very diverse. They go from the increase or decrease in the number of constituencies to the implementation of metropolitan governments.56 Notwithstanding the foregoing, the highlight of its analysis is the identification of the cause that motivates these institutional arrangements. Iracheta states that: In much of the world, national governments have faced the need to create formulas for attention to the phenomenon of metropolization, because population growth and the physical expansion of cities exceeded local -municipal- demarcations and the expansion of social needs and technological development possibilities expanded the services and actions of municipal governments in favor of the population. For more than 5 decades, the result has been that local authorities have been exceeded by these realities.57

Coincidentally, Lima presents all the characteristics mentioned above. The effects of this type of fragmentation on the validity of the metropolitan government have already been identified and described in first-order public documents such as the Planes de Desarrollo Concertado (Concerted Development Plans). Regarding the occupation of the territory, the plan diagnosed that: The occupation of territory that involved, among others, the political-geographical aspect, the legal vacuum for the creation of districts, urban sprawl, a State deficient in attending public services, and the lack of an integral vision of the territory caused the creation of new districts based on voluntary principles.58

Specifically, regarding the occupation of the territory, the urban area of Lima currently equals the sum of the 18 capital cities that follow it in size.59 Likewise, Lima is the 53 Valenzuela

2006, p. 9. p. 6. 55 Nel-lo 2002, p. 462. 56 Iracheta 2002, p. 446. 57 Ibid., p. 446. 58 Municipalidad Metropolitana de Lima 2016, p. 38. 59 Zucchetti and Freundt 2019, p. 69. 54 Ibid.,

5 How Much Local Autonomy Is Good for a City? …

93

city with the highest population that has urbanized the largest extensions of nonurban territory between 2009 and 2018, increasing 907 inhabitants/year.60 In this sense, without denying the contexts of internal migration and population explosion towards the capital, the responses of the only two metropolitan development plans promoted an expansive logic61 described in the preceding. It is worrying that one of these is the current plan. The Plan de Desarrollo Metropolitano de Lima y Callao 1990–2010 (Metropolitan Development Plan of Lima and Callao 1990–2010), the plan that supposedly governs the city today, was drawn up 32 years ago and has been extended indefinitely. If we add to this situation the attempts to continue fragmenting the territory of Lima with the creation of new constituencies, it is important to note that we can possibly enter a vicious and harmful circle. Following the centrists, the expansion of Lima’s urban sprawl would have resulted in the creation of new districts. If we start from the idea that the creation of new districts creates a fragmented structure, the creation of new constituencies will also have effects on the validity of the metropolitan government. Issues such as the scale of action that allow major city governments to have organizational capacity are affected by the coordination or articulation that the metropolitan government must do with the 42 subnational governments that are located within the Lima Metropolitan Area to exercise their duties of government. Without a scale of action, as Berg would say, tasks such as urban planning are diminished by its scope. The result of this has been the expansion of the urban spot described above. If, as a consequence of these difficulties of a fragmented, decentralized and uncoordinated government structure, the urban sprawl grows, as a consequence of this growth, fragmented suburbs will be created with a larger number of districts and again fragment the current metropolitan government structure. This fragmentation not only brings effects on the growth of the urban area, but also on economic productivity. The OECD, using an econometric model, concluded the following: (…) Metropolitan areas with fragmented governance structures tend to have lower levels of productivity: For a given population size, a metropolitan area with twice the number of municipalities is associated with around 6% lower productivity. In addition, it has been shown that metropolitan areas with governing bodies experience less expansion of urban proliferation and mitigate the negative effects of productivity that occur as a result of administrative fragmentation.62

On government structures, in a recent note published in El Comercio newspaper, the director of the Urban Economy and Finance Division of UN-Habitat, Marco Kamiya, highlighted the importance of investigating these institutional frameworks to eliminate the costs of the agglomerations and increase the quality of life in Lima. According to Kamiya, “the quality of Lima’s urbanization largely determines the country’s economy. It is a metropolitan area of 10 million inhabitants and concentrates 50% of the country’s GDP, is close to the port and is home to the country’s 60 Ibid.,

p. 67. Centeno et al. 2019, p. 25. 62 Cited in Lafranchi and Bidart 2016, p. 11. 61 Vega

94

A. Cruces Burga and A. Devoto Ykeho

financial system”.63 Such is the relevance of Peru’s capital that Kamiya proposes a high-level governance structure different from the municipality, statement that has not had any development and constitutional interpretation based on the aforementioned concepts. With the aim of resolving this disagreement between the metropolis and its geographical elements arbitrarily divided of political administrative demarcations,64 currently the authorities of the Metropolitan Municipality of Lima are working on a proposal to group the more than 43 districts of Lima into four (North, South, East and Center).65 This is to improve urban governance by overcoming the coordination of actions with so many authorities.66 Likewise, this new administrative structure would allow to standardize the quality of public services such as cleaning and citizen security.67 Another important effect caused by the fragmentation of the territory is related to the difficulty of providing services and the impact that local works have. Regarding the first consequence, the Instituto de Estudios Peruanos (Institute of Peruvian Studies) affirmed that the Peruvian territorial model, characterized by high fragmentation in administrative political constituencies, as well as by its remoteness to their respective capitals, causes many of these demarcations to have access to services of their regional constituency.68 According to the World Bank: The fragmentation of the third level of government, the municipal level, is another critical institutional aspect that undermines the potential advantages of decentralization in service delivery in terms of efficiency. About 80% (1271) if district municipalities have less than 10,000 inhabitants and only 4% (74) of these have more than 50,000 inhabitants. With an average population of 15,000 inhabitants, the average municipality in Peru is approximately half the size of the average municipality in Bolivia and on third of the average municipality in Ecuador (Martínez-Vásquez 2013). Such fragmentation implies insufficient fiscal bases and income resources.69

We believe that this problem is eminently political. The correct territorial demarcation and the creation of constituencies have consequences on several areas. As Meléndez affirms, territorial demarcation supported by political and non-technical criteria can sharpen inequality. He explains that, as much of the distribution of state resources rests on municipal institutions, there are incentives for marginal populations to aspire to become autonomous districts.70 A very clarifying example is the situation of the districts of San Isidro and San Juan de Lurigancho. According to Laurie, San Isidro, an exclusive district that houses the Financial Center, has an annual budget per inhabitant 27 times greater than San Juan de Lurigancho, the district with the highest 63 Macera

and Odar 2018. and Espinoza 2017, p. 83. 65 Mendoza 2020. 66 Leyton 2019. 67 Leyton 2019. 68 Instituto de Estudios Peruanos 2015, p. 9. 69 World Bank 2016, p. 144. Translation by authors. 70 Melendez 2017. 64 Rodríguez

5 How Much Local Autonomy Is Good for a City? …

95

number of inhabitants in the Lima Metropolitan Area.71 This partly explains how there are aspirations for San Juan de Lurigancho to become a province so that it can access a better budget to provide services to its inhabitants. According to Laurie, just as the fragmentation of the territory can generate inequalities between the budgets of different districts located in the same metropolitan area,72 we see that in Lima there are also studies where it is proven that such fragmentation can generate inefficiencies in public spending. In this regard, Álvaro Espinoza and Ricardo Fort have studied the quality of public investment in vulnerable neighborhoods in Lima. The authors studied a small group of projects classified into five types of works. The reason was that these five types of work represented three quarters of the total urban public investment and 81% of municipal urban public investment. The works are tracks and paths, water and sewage, parks and green areas, sports infrastructure, and retaining walls and river defenses.73 On the other hand, an important finding was the relationship between territorial articulation and the impacts that projects may generate in these vulnerable urban neighborhoods. Espinoza and Fort found that: A more disaggregated look of the public investment projects that make up this public investment draws attention to the extreme fragmentation of these projects, as well as their limited territorial articulation. 69% of the total urban public investment projects analyzed for the 41 districts are considered minor PIPs, that is, less than 1.2 million soles. Only in the case of investment projects of the National government are the minor PIPs less than half of the total (45%), while in local governments this percentage reaches 74%.74

In other words, approximately two thirds of public investment in the districts with the most presence of vulnerable urban neighborhoods is classified as minor public investment projects. The other fundamental thing that proves this thesis is that local governments have a greater number of projects of minor public investment, with a greater fragmentation of the investment against the one of the national government. For the case of the Lima Metropolitan Area, our case of study, Espinoza and Fort studied the districts of Ate, San Juan de Lurigancho and Villa Maria del Triunfo to include a large number of vulnerable urban neighborhoods (BUV, in Spanish). In this regard, they found that: If we focus on the three districts where dynamics of the selected BUVs will be analyzed, it is observed that 86% of projects are in the minor PIP category; the vast majority are extremely small in scope and small in size. In the case of internal runways, for example, the average size of the projects in the three districts fluctuates only between approximately 400 and 600 meters in length, which is equivalent to paving the contour of one or two blocks; meanwhile, the average size of public spaces built is 1400 square meters, equivalent to less than 15% of a regular block.75

71 Laurie

2019. 2018. 73 Espinoza and Ford 2017, p. 138. 74 Ibid., pp. 138–139. 75 Espinoza and Ford 2017, pp. 138–139. 72 Espinoza

96

A. Cruces Burga and A. Devoto Ykeho

In this regard, we can conclude that the fragmentation of public investment in these three large pockets of vulnerable neighborhoods of Lima has generated a greater percentage of smaller public investment projects (86%) compared to the national average (74%). As detailed, given the scale of action of the countless local governments of Lima, these smaller public investment projects have been reflected in a set of works that could have a greater impact.

5.4 Conclusions Peru is a unitary and decentralized state that embarked on a decentralization process in 2002. This process promoted the granting of autonomy to all decentralized levels of government without making relevant differences. According to the Peruvian constitution, local governments have political, economic and administrative autonomy. These attributions have been considered necessary to ensure greater democracy, but also as an adequate form of government because of the principle of subsidiarity. Article 194 of the Peruvian constitution permits no other interpretation from that of attributing almost unrestricted and irreversible autonomy to local governments, since this is a principle of the decentralization process. Therefore, the Metropolitan Municipality of Lima must coexist with multiple organizations with autonomy. In the case of Lima, this fragmented government structure based on the form of a decentralized state has been one of the barriers to the proper fulfillment of its metropolitan functions. The relationship between the fragmented government structure and urban growth, metropolitan productivity, the correct provision of services and coordination between multiple government entities are examples of complications caused by this institutional model of local governments. For decentralization to be a better technique of in the capital of Peru, the particularities of the metropolitan areas must be taken into account. Institutional arrangements made in the Lima Metropolitan Area which prove to be successful will be key for the future of other big cities in Peru that may present similar problems. Even more so in Peru, where the dilemmas of big cities are still not discussed as widely as they should at legal and constitutional levels.

References Alvites E (2014) El Estado actual del proceso de descentralización. Revista Peruana de Derecho Constitucional N° 7, pp. 55–78. Bensa J (2017) Lima: los retos de la gobernanza urbana en contextos de fragmentación y debilidad institucional. In: Grin E, Hernandez J, Abrucio F (eds) El Gobierno de las grandes Ciudades. Universidad Autónoma de Chile, Santiago de Chile, pp. 241–262. Berg L (2002) Gobernar regiones metropolitanas: El caso de Rótterdam. In: Institut D’Estudis Territorials (eds) El Desafío de las áreas metropolitanas en un mundo globalizado. Institut d’estudis territorials, Barcelona, pp. 411–425.

5 How Much Local Autonomy Is Good for a City? …

97

Blume E (2017) Derecho Municipal, Descentralización y Constitución en el Perú. In: Comisión de Descentralización, Regionalización, Gobiernos Locales y Modernización de la Gestión del Estado. Derecho Municipal. Descentralización y gobernabilidad. Ediciones del Congreso del Perú, Lima, pp. 57–106. Calderón J (2016) La ciudad ilegal, Lima en el siglo XX. Punto Cardinal, Lima. Espinoza E (2018) Balance electoral: la visión de los urbanistas Angus Laurie y Mariana Alegre. Cosas. https://cosas.pe/casas/138399/balance-electoral-la-vision-de-los-urbani stas-angus-laurie-y-mariana-alegre/ Accessed on 24 May 2020. Espinoza A, Fort R (2017) Inversión sin planificación. La calidad de la inversión pública en los barrios vulnerables de Lima. Grupo de Análisis para el Desarrollo-GRADE, Lima. Esteve J (1991) Garantía institucional y/o función constitucional en las bases del régimen local. Revista española de derecho constitucional. N° 31, pp. 125–150. Gamarra L (2019) Urbanismo: la fractura entre Lima y Callao. Cosas. https://cosas.pe/cultura/ 67032/urbanismo-la-fractura-entre-lima-y-callao/. Accessed on 1 November 2019 García Belaunde D (2017) Estado y Municipio en el Perú. In: Comisión de Descentralización, Regionalización, Gobiernos Locales y Modernización de la Gestión del Estado. Derecho Municipal. Descentralización y gobernabilidad. Ediciones del Congreso del Perú, Lima, pp. 25–55. Grin E, Hernández J, Abrucio F (eds) (2017) El Gobierno de las grandes Ciudades. Universidad Autónoma de Chile, Santiago de Chile. Hauriou A (1980) Derecho Constitucional e Instituciones Políticas, 2nd edn. Ariel, Barcelona. Instituto de Estudios Peruanos (2015) Nota de Política Pública de Descentralización. Hacia la consolidación de un Estado unitario y descentralizado al servicio de los ciudadanos. IEP, Lima. http://www.dialogosperu.pe/files/downloads/notas_descentralizacion.pdf Accessed on 1 November 2019. Iracheta A (2002) Gobernabilidad en la zona metropolitana del Valle de México-ZMVM. In: Institut D’Estudis Territorials (eds) El Desafío de las áreas metropolitanas en un mundo globalizado. Institut d’estudis territorials, Barcelona, pp. 427–455. Lafranchi G, Bidart M (2016) Gobernanza metropolitana en América Latina y el Caribe. Centro de Implementación de Políticas Públicas para Equidad y el Crecimiento, Buenos Aires. Landa C (2002) Teoría de los derechos fundamentales. Cuestiones Constitucionales N°6, pp. 58. Laurie A (2019) La injusticia de la fragmentación municipal. El Comercio, Lima. https://elcome rcio.pe/lima/obras/injusticia-fragmentacion-municipal-angus-laurie-opinion-noticia-619791noticia/ Accessed on 1 November 2019. Leyton F (2019) Lima propone agrupar distritos para gobernar mejor la ciudad. La República. https://larepublica.pe/sociedad/2019/10/31/lima-propone-agrupar-distritos-para-gob ernar-mejor-la-ciudad-jorge-munoz-municipalidad-de-lima/ Accessed on 23 May 2020. Macera D, Odar J (2018) Marco Kamiya: “El futuro de Lima es el futuro del Perú” (Interview). El Comercio. https://elcomercio.pe/economia/peru/marco-kamiya-futuro-lima-futuro-peru-noticia564982-noticia/ Accessed on 1 November 2019. McNulty S (2011) Voice and Vote Decentralization and Participation in Post-Fujimori Peru. Stanford University Press. Meléndez C (2017) El teorema de Pio’s Chicken. El Comercio, Lima. https://elcomercio.pe/ opinion/rincon-del-autor/teorema-pio-s-chicken-carlos-melendez-noticia-467432 Accessed on 1 November 2019. Mendoza R (2020) Interview with Miguel Romero Sotelo. La República. https://larepublica.pe/soc iedad/2020/02/13/lima-miguel-romero-sotelo-estamos-tratando-de-humanizar-una-ciudad-quede-momento-es-caotica/ Accessed on 23 May 2020. Municipalidad Metropolitana de Lima (2016) Plan de Desarrollo Concertado de Lima Metropolitana 2016–2021. Lima. Naranjo V (2003) Teoría Constitucional e Instituciones Políticas. Temis, Bogotá, p. 287. Nel-Lo O (2002) Las grandes ciudades en Europa y América Latina: dinámicas, retos y gobernación. In: Institut D’Estudis Territorials (eds) El Desafío de las áreas metropolitanas: en un mundo globalizado. Institut d’estudis territorials, Barcelona, pp. 427–455.

98

A. Cruces Burga and A. Devoto Ykeho

Perú 21 (2019) Creación de distritos ¿creación de desigualdad? Perú 21. https://peru21.pe/politica/ creacion-distritos-creacion-desigualdad-471990-noticia/ Accessed on 1 November 2019. Rodríguez L, Espinoza A (2017) Del plan al proyecto urbano. Reestructurar la ciudad o las políticas públicas. In: Molnarova J, Rodríguez L, Espinoza A, Fort R (eds) Otro urbanismo para Lima. Más allá del mejoramiento de barrios. PUCP, Universidad Científica del Sur y GRADE, Lima, pp. 77–93. Valenzuela E (2006) Las áreas metropolitanas. Reflexión, evolución y casos de estudios”. Revista Urbano N°14, pp. 4–13. Vega Centeno P et al (2019) Las centralidades de Lima Metropolitana en el Siglo XXI. Fondo Editorial PUCP, Lima. Vergara A (2014) The Fujimori Regime through Tocqueville’s Lens: Centralism, Regime Change, and Peripheral Elites in Contemporary Peru. In: Drinot P (ed) Peru in Theory. Springer. Vial C (2017) El gobierno de Santiago de Chile: Entre la autonomía local y la omnipotencia del gobierno nacional. In: Grin E, Hernandez J, Abrucio F (eds) El Gobierno de las grandes Ciudades. Universidad Autónoma de Chile, Santiago de Chile, pp. 263–285. World Bank (2016) Perú – Towards a system integrated cities: a new vision for growth. World Bank, Lima. Zas Friz J (1998) La descentralización ficticia: Perú 1821–1998. Centro de Investigación de la Universidad del Pacífico, Lima. Zas Friz J (2001) El Sueño Obcecado. La descentralización política en América Latina. Fondo Editorial del Congreso del Perú. Zucchetti A, Freundt D (2019) Ciudades del Perú/ Primer Reporte Nacional de Indicadores Urbanos 2018. Periferia, Lima.

Judgements Tribunal Constitucional del Perú (2003) Roberto Nesta Brero in representation of more than five thousand citizens v. Poder Ejecutivo. Judgement of 11 November 2003. 00008–2003-PI/TC. Tribunal Constitucional del Perú (2005) Miguel Ángel Mufarech in representation of more than five thousand citizens v. Congreso de la República. Judgement of 18 May 2005. 00002-2005-PI/TC. Tribunal Constitucional del Perú (2005) Presidente de la República v. Gobiernos Regionales de Cusco y Huánuco. Judgement of 27 September 2005. 00020-2005-PI/TC. Tribunal Constitucional del Perú (2007) Asociación de Comerciantes San Ramón y Figari v. Municipalidad Distrital de Miraflores. Judgement 22 June 2007. 00007-2006-PI. Tribunal Constitucional del Perú (2007) Colegio de Abogados de Ica v. Congreso de la República. Judgement of 21 November 2007. 00027-2010-PI. Tribunal Constitucional del Perú (2009) Alcalde de la Municipalidad Provincial de Huaraz v. Congreso de la República. Judgement of 4 May 2009. 00028-2007-AI/TC. Tribunal Constitucional del Perú (2010) Ernesto Emilio Laynes Campoblanco v. Municipalidad Distrital de Pichari. Judgement of 21 September 2010. 00016-2009-PI. Tribunal Constitucional del Perú (2011) Municipalidad Metropolitana de Lima v. Poder Ejecutivo. Judgement of 23 May 2011. 00031-2010-PI/TC. Tribunal Constitucional del Perú (2017) Municipalidad Provincial de Puno v. Municipalidad Provincial General de Sanchez Cerro. Judgement of 22 February 2017. 00019-2013-PI/TC. Tribunal Constitucional del Perú (2018) Colegio de Abogados de Lambayeque v. Municipalidad Provincial de Chiclayo. Judgement of 5 June 2018. 00017-2012-PI/TC. Tribunal Constitucional del Perú (2019) Municipalidad Provincial de Satipo v. Municipalidad Distrital de Río Negro. Judgement of 12 January 2019. 00025-2014-PI/TC.

5 How Much Local Autonomy Is Good for a City? …

99

Alberto Cruces Burga is a lawyer from Pontificia Universidad Católica del Perú. He has been professor of Economic Constitutional Law at the Universidad Nacional Mayor de San Marcos and professor of Constitutional Law at the Constitutional Studies Center of the Constitutional Court of Peru. Alberto has held public office as a jurisdictional advisor to the Constitutional Court and a member of the cabinet of advisers to the Presidency of the Judiciary of Peru. He has published various articles on economic constitutional law and constitutional procedural law and is currently conducting research on the application of the subsidiarity principle in Peru. Andrés Devoto Ykeho has an LLB from Pontificia Universidad Católica del Perú. He has been a teaching assistant in Property Law and Urban Law courses in the same university. He is an associated researcher in the Urbanism, Governance and Social Housing Research Group (CONURB) and investigates urban legislation and urban policy issues. Andrés also works as a private legal counsel for private real estate and agricultural projects, and provides consulting services for public entities regarding property in informal settlements, urban planning, zoning and sustainable urban mobility. Andrés is also a founder of the activist organization DespiertaLima, which carries out advocacy campaigns and urban interventions with the goal of raising awareness about the public problems of Lima’s metropolitan area.

Chapter 6

Comparative Constitutional Politics in the Chinese Special Administrative Regions of Hong Kong and Macau Eric C. Ip Contents 6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2 Constitutional Convergence on the Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.1 The Historical Foundations of Constitutional Convergence . . . . . . . . . . . . . . . . . 6.2.2 Constitutional Convergence Explained . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2.3 Fundamental Incoherence with the Chinese Constitution . . . . . . . . . . . . . . . . . . . 6.3 Constitutional Divergence in Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.1 The Path Towards Constitutional Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.3.2 Executive-Legislative Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

102 104 104 106 110 114 114 121 125 127

Abstract Hong Kong and Macau are cosmopolitan former Western European dependencies in East Asia that became autonomous Special Administrative Regions of the People’s Republic of China toward the end of the twentieth century. The Basic Law and the Lei Básica, Hong Kong’s and Macau’s contemporary constitutional charters, were designed to serve as jurisdictional firewalls that prevent the dissolution of the minuscule Regions into the far more powerful and populous Chinese mainland, whose Leninist polity officially rejects almost every fundamental value shared by English and Portuguese constitutional law that has been indigenised into the Regions. Notwithstanding the striking resemblance of the Basic Law and the Lei Básica, constitutional politics in Hong Kong and Macau could not be more different. This chapter identifies the root of this discrepancy not just in history and political culture, but also in two oft-overlooked differences between the charters in relation to electoral reform and the executive-legislative relationship. Both Regions, for all their autonomy, are not sovereign states; their relationship with mainland China critically shapes their divergent trajectories of constitutional development. The chapter closes by explaining why assimilating the Regions into the mainland, turning them into little more than two of China’s over six hundred cities, is neither supported by the law, nor in the ultimate political interests of the People’s Republic. E. C. Ip (B) Faculty of Law, The University of Hong Kong, Hong Kong SAR, People’s Republic of China e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_6

101

102

E. C. Ip

Keywords Autonomy · Chinese constitutional law · Comparative constitutional politics · Hong Kong · Macau

6.1 Introduction Hong Kong and Macau are cosmopolitan former Western European dependencies located on the northern coast of the South China Sea. In December 1984, the SinoBritish Joint Declaration set in motion the transition of Hong Kong from a British Crown Colony to an autonomous Special Administrative Region under Chinese sovereignty,1 endowed with executive, legislative, and independent judicial powers,2 and governed by a locally selected Chief Executive.3 The parties agreed to conserve the pre-existing legal system,4 capitalist economy and lifestyle, rights and liberties of British Hong Kong5 by way of a new charter known as the Basic Law.6 The Lei Básica de Macau of 1993, mandated by the Sino-Portuguese Joint Declaration of 1987,7 set up institutions “very similar” to Hong Kong’s for the Macau Special Administrative Region: “many of their provisions are almost identical.”8 Both Hong Kong and Macau lack natural resources, but both possess high standards of living and modern developed economies. The former is a leading international financial centre in some ways comparable with London and New York City.9 The latter, graced with a rising high-tech industry and a world-class telecommunications system,10 is home to the world’s largest casinos, with a gaming revenue that exceeds that of Atlantic City and Las Vegas combined.11 Both Special Administrative Regions enjoy “many of the trappings of sovereign states”12 thanks to China’s promise that they “will enjoy a high degree of autonomy, except in foreign and defence affairs”.13 Hong Kong and Macau issue their own currencies and passports; control their own borders with mainland China; have their own legal systems based 1 Articles

3(1) & 3(2) of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong of 1984 (hereinafter “Sino-British Joint Declaration”). 2 Ibid., Article 3(3). 3 Ibid., Article 3(4). 4 Ibid., Article 3(3). 5 Ibid., Article 3(5). 6 Ibid., Article 3(12). 7 Joint Declaration of the Government of the People’s Republic of China and the Government of the Republic of Portugal on the Question of Macao of 1987. 8 Chen and Lo 2018, p. 231. 9 Yeandle and Wardle 2019. 10 Fok 2001, p. 13. 11 Lo 2019, p. 521. 12 Article 3(2) of the Sino-British Joint Declaration; Article 3(2) of the Sino-Portuguese Joint Declaration. 13 Ibid.

6 Comparative Constitutional Politics in the Chinese Special Administrative…

103

on English common law and Portuguese civilian law, respectively; tax and spend as they deem fit; uphold their own constitutional bills of rights;14 and conclude binding international treaties with foreign states and international organisations on economic and trade matters.15 Over 99% of Chinese laws do not apply to either Region.16 Political scientists describe contemporary Hong Kong’s polity as “oligarchic”17 and “liberal authoritarian”.18 Its counterpart in Macau has been dubbed “somewhere between a democratic and an authoritarian state”19 and “a subnational authoritarian regime”.20 Authoritarian politics in post-British Hong Kong and post-Portuguese Macau are not accidents of history, but very likely intended by the framers of the Basic Law and the Lei Básica under the auspices of China, itself a Leninist Partystate.21 Today, both Regions are run by corporatist regimes,22 staffed by politicians of coalitions that style themselves, in a candid way, “the Establishment”, headed by indirectly elected Chief Executives who in turn are assisted by partially elected legislatures dominated by Establishment loyalists.23 This chapter compares the constitutional politics of Hong Kong and Macau so as to illuminate how their constitutions constitute politics on the one hand, and political developments develop constitutional meaning on the other. Section 6.2 highlights the resemblance of the Hong Kong Basic Law and the Lei Básica de Macau from a formal legal perspective. It compares the texts of these charters with the Constitution of the People’s Republic of China, from whence they are supposedly derived. This section demonstrates that the Chinese Constitution and the Basic Law and the Lei Básica are in reality inconsistent with each other in a variety of dimensions, and that it is impossible to conserve the European-derived ways of life of Hong Kong and Macau without upholding the jurisdictional firewalls inscribed in their constitutional charters.24 Section 6.3 concerns how the two Regions practice politics within the institutional frameworks set out by the Basic Law and the Lei Básica. It turns out that, regardless of the similarity of the Basic Law and the Lei Básica on the books, Hong Kong’s and Macau’s constitutional politics could not be more divergent. Incoherence and fragmentation persistently characterise the modus operandi of the Establishment parties in the Legislative Council, which in turn disabled the vulnerable Hong Kong Chief

14 Chapter III: Fundamental Rights and Duties of the Residents of the Hong Kong Basic Law and Chapter III: Fundamental Rights and Duties of the Residents of the Lei Básica de Macau. 15 Gordon 2013. 16 Zhang and Xiao 2015, p. 486. 17 Bush 2016, p. 48. 18 Wong 2015, p. 69. 19 Hao et al. 2017, p. 216. 20 Ieong 2017, p. 506. 21 Ip 2019a, p. 103. 22 Cheng 2016, p. 384. 23 Wong 2014, p. 201. 24 Rao and Wang 2007, p. 343.

104

E. C. Ip

Executive to govern effectively,25 in face of unrest on the scale of the anti-national security bill March of 2003, the Umbrella Movement of 2014, and the anti-extradition bill protests of 2019. By contrast, the Macau Chief Executive can govern by Decree Laws,26 and is rarely resisted by the Legislative Assembly.27 No meaningful popular movement for democratisation has arisen, and clashes between Macau and Beijing are “unheard-of”.28 Section 6.3 locates the cause of this discrepancy not just in history, but also in two oft-overlooked yet crucial differences between the Basic Law and the Lei Básica respecting electoral reform and the executive-legislative relationship. Section 6.4 summarises the findings of the chapter.

6.2 Constitutional Convergence on the Books 6.2.1 The Historical Foundations of Constitutional Convergence Hong Kong and Macau are similar politically, economically, socially, and ethnically. Modern Macau anticipated Hong Kong by three centuries,29 beginning with the Ming Dynasty’s acquiescence in Portuguese occupation in 1557, following four decades of unofficial settlement.30 Peking during the Qing Dynasty formally recognised the Portuguese right of “perpetual occupation” under the Treaty of Friendship and Commerce between Portugal and China 1887.31 Hong Kong was established by the British amid the First Anglo-Chinese War (1839–1842) on one of the some two hundreds of islands lying off the coast of the County of Bao’an in Guangdong Province. In 1842, Qing China ceded the island to the British Crown in perpetuity by the Treaty of Nanking. The Crown Colony was enlarged twice by the First Convention of Peking 1860 and by the Second Convention of Peking 1898, eventually covering a hinterland and surrounding islands south of modern-day Shenzhen. After the Second World War decolonisation or democratisation, or both, occurred in every part of the British Empire, from Fiji to India and from Malta to Zimbabwe. In view of its dearth of natural resources and citizens of British descent,32 few pragmatic motives justified omitting Hong Kong from the same decolonisation agenda.33 It is inferred by elimination that the single factor excepting the then-British Dependent 25 Lam

2008, p. 23. 2011, p. 57. 27 Lo 2012, p. 23. 28 Lemos and Robalo 2019, p. 748. 29 Mendes 2014, p. 225. 30 Chang 1988, p. 255–56. 31 Cardinal 2013, p. 385. 32 Hauss and Haussman 2013, p. 311. 33 Ip 2019b, p. 54. 26 Yu

6 Comparative Constitutional Politics in the Chinese Special Administrative…

105

Territory was the nearness of Communist China,34 and its categorical intolerance of a liberal democratic Hong Kong, backed up by credible military threat. In 1972, having supplanted the rump regime of the Kuomintang on Taiwan as China’s representative in the United Nations, Beijing wasted little time convincing that organization to cancel Hong Kong and Macau’s statuses as non-self-governing territories awaiting self-determination pursuant to Chapter XI of the United Nations Charter.35 In June 1982 paramount leader Deng Xiaoping insisted that Hong Kong and Macau should be reunited with China in the foreseeable future under the principle of “One China, Two Systems”, a principle instituted to prevent mainland political dynamics affecting the functioning of the capitalist systems in both former occupied territories.36 In December of that year, the National People’s Congress passed a new Constitution for China, which provided in Article 31, “The State shall establish Special Administrative Regions when necessary. The systems to be instituted in Special Administrative Regions shall be prescribed by law enacted by the National People’s Congress in the light of the specific conditions”.37 After thirteen months and twenty-two rounds of contentious bargaining, the United Kingdom agreed to transfer Hong Kong to China on 1 July 1997 according to the Sino-British Joint Declaration of 1984, a treaty registered with the United Nations and obligating China to adopt a Basic Law constitutionalising “One China, Two Systems” and “Hong Kong People Rule Hong Kong”, the better to build confidence in the eventual Special Administrative Region’s high degree of autonomy.38 “One China, Two Systems” was originally devised as a strategy to reunify with Taiwan. It has recently been hailed by current paramount leader Xi Jinping as “a great Chinese initiative” that “offers a new thinking and a new formula to the international community in addressing similar issues”.39 In modern Chinese history it may be unprecedented,40 but it is an old standby to the British Empire, whose crown colonies in relationship with the United Kingdom might be dubbed “One Crown, Myriad Systems”. As at today, each British Overseas Territory is a constitutional unit separate from the others and from the British Isles; vested with an executive, legislature, and judiciary distinct from those in Westminster, endowed with their own public funds, in charge of their internal security, and administering their external affairs, though under British sovereignty.41 The Sino-Portuguese Joint Communiqué committed both countries to bilateral discussions on the “Question of Macau” shortly after the Sino-British Joint Declaration. After only eight months and four rounds of fairly collegial discussions, Beijing 34 Tang

1994, p. 317. 2013, p. 320; Crawford 2006, p. 249. 36 Fok 2001, p. 21. 37 Partlett and Ip 2016, p. 485. 38 Davis 2007, p. 78. 39 Xi 2017, p. 472. 40 But consider the ancient Chinese dynasties of Shang (1600–1047 BC), and Zhou (1046–256 BC) that practiced various forms of decentralized confederalism. See Zhao 2015, p. 51. 41 Hendry and Dickson 2018, p. 10–13. 35 Ghai

106

E. C. Ip

and Lisbon issued the Joint Declaration on the Question of Macau mandating that China resume sovereignty over the Portuguese dependency on 20 December 1999. The Central People’s Government cared little about the historical differences between Hong Kong and Macau. Thus, post-Portuguese Macau’s constitution “seems almost blindly copied from the legal framework designed for Hong Kong”.42 Nothing but China’s goodwill guaranteed the observance of these grand promises after the British and Portuguese withdrew from Hong Kong and Macau. As mainland Indeed, to the astonishment of many, the Chinese Ministry of Foreign Affairs declared on 30 June 2017 that the Sino-British Joint Declaration was nothing more than a “historical document that no longer has any realistic meaning”; that it “does not have any binding power on how the Chinese central government administers Hong Kong”.43

6.2.2 Constitutional Convergence Explained The Basic Law and the Lei Básica, drafted by handpicked mainland-dominated committees whose memberships partly interlocked, are identical in basic structure: both are made up of nine chapters plus three annexes. Their common function was “to ensure the implementation of the basic policies of the People’s Republic of China regarding [Hong Kong or Macao]”, as “elaborated by the Chinese Government in the [Sino-British or Sino-Portuguese] Joint Declaration”.44 The two charters derived a part of their content from the liberal constitutionalist paradigm shared by Britain and Portugal, entailing substantial protections of individual rights and legality:45 the obligation to observe rights and liberties;46 equality before the law;47 the rule of law not men;48 judicial review of administrative acts;49 and the independence of the judiciary.50 Both charters contain elaborate bills of rights which, interestingly, have different emphases.51 The Hong Kong version has rights not mentioned in its Macau counterpart, undoubtedly rooted in the English common law tradition: prohibition of the arbitrary deprivation of life;52 the right to a fair trial;53 the principle of

42 Cardinal

2013, p. 408. 2018, p. 325. 44 Preamble of the Hong Kong Basic Law of 1990; Preamble of the Lei Básica de Macau of 1993. 45 Davis 1997, p. 159. 46 Article 4 of the Hong Kong Basic Law of 1990; Article 4 of the Lei Básica de Macau of 1993. 47 Article 25 of the Hong Kong Basic Law of 1990; Article 25 of the Lei Básica de Macau of 1993. 48 Article 64 of the Hong Kong Basic Law of 1990; Article 65 of the Lei Básica de Macau of 1993. 49 Article 35(2) of the Hong Kong Basic Law of 1990; Article 36(3) of the Lei Básica de Macau of 1993. 50 Article 2 of the Hong Kong Basic Law of 1990; Article 2 of the Lei Básica de Macau of 1993. 51 Young 2009, p. 685. 52 Article 28(2) of the Hong Kong Basic Law. 53 Ibid., Article 87(2). 43 Loh

6 Comparative Constitutional Politics in the Chinese Special Administrative…

107

trial by jury;54 the right to legal professional privilege; and the principle that “justice delayed is justice denied”.55 The Lei Básica’s bill of rights reflects Portugal’s Continental European legal tradition, such as freedom from discrimination based on “nationality, descent, race, sex, language, religion, political persuasion or ideological belief, education level, economic status or social condition”;56 the prohibition of torture or inhuman treatment;57 the principle of inviolable human dignity;58 the right to personal reputation, privacy of personal and family life;59 protection of women’s rights;60 protections for minors, the aged, and the disabled;61 and for the interests, customs, and cultural traditions of residents of Portuguese descent.62 The Lei Básica is unambiguous on the issue that children born of a Chinese national parent, who is a permanent resident of Macau, outside Macau, do not automatically become permanent residents because of that connection, unless they were born after the parent had become a permanent resident.63 This issue has been extremely divisive in Hong Kong, and became the subject of extensive litigation.64 Both the Basic Law and the Lei Básica preserve relics of colonial government,65 especially the political dominance of the Governor, now renamed the Chief Executive, vis-à-vis the Legislative Council and Legislative Assembly which historically were noted for deference to bills proposed by the government and respect for officials attending legislative sessions.66 The Chief Executive is chosen by an electoral college called the “Election Committee”, for a five-year, once-renewable term,67 and appointed by the Central People’s Government in Beijing.68 As of 2020, the Hong Kong Election Committee comprises only 1200 members, and the Macau Election Committee is even smaller, at just 400. The Party-state can depend on a majority within the Election Committee, most of whom are not directly elected by local residents, to guarantee that only an “acceptable” candidate is picked as Chief Executive, in the teeth of the lack of popular support.69 On 25 August 2019, retired President of the Legislative Assembly Ho Iat Seng entered the Chief Executive election race 54 Ibid.,

Article 86. Article 35(1). 56 Article 25 of the Lei Básica de Macau of 1993. 57 Ibid. Article 28(4). 58 Ibid., Article 30(1). 59 Ibid Article 30(2). 60 Ibid., Article 38(2). 61 Ibid., Article 38(3). 62 Ibid Article 42.. 63 Ibid., Article 24(2). 64 Ghai 2000, p. 196. 65 Lee and Yeung 2017, p. 122. 66 Lo 1995, p. 242. 67 Annex I of the Hong Kong Basic Law of 1990; Annex I of the Lei Básica de Macau of 1993. 68 Article 45(1) of the Hong Kong Basic Law of 1990; Article 47(1) of the Lei Básica de Macau of 1993. 69 Young and Cullen 2010, p. 91. 55 Ibid.,

108

E. C. Ip

as the only candidate, emerging victorious on the same day, winning 98% (392) of Election Committee votes. Though the Chief Executive’s constitutional status is that of the head and representative of the Region,70 the office is more akin to an imperial viceroy wielding most of the autocratic powers of the former Governors.71 Her assent is needed to enact bills and budgets passed by the Legislative Council or the Legislative Assembly.72 She makes government policies and issues executive orders.73 She nominates Principal Officials for the Central People’s Government to appoint;74 appoints and removes judges “in accordance with legal procedures”;75 conducts external affairs;76 appoints and removes members of the Executive Council on her own,77 as well as other public officers.78 She pardons criminal convicts or commutes their sentences;79 and hears and tries petitions and complaints.80 No bill on “government policies” may be put before the legislature for consideration without the Chief Executive’s “written consent”; neither bills on “public expenditure” or “political structure” or the “operation of the government”.81 No government official may testify before the legislature without the Chief Executive’s permission.82 The advice of the Executive Council is not binding on the Chief Executive,83 not even if unanimous.84 The Chief Executive

70 Article

43 of the Hong Kong Basic Law of 1990; Article 45 of the Lei Básica de Macau of 1993. 2010, p. 29. 72 Article 49 of the Hong Kong Basic Law of 1990; Article 51 of the Lei Básica de Macau of 1993. 73 Article 48(2) of the Hong Kong Basic Law of 1990; Article 50(3) of the Lei Básica de Macau of 1993. 74 Article 48(5) of the Hong Kong Basic Law of 1990; Article 50(6) of the Lei Básica de Macau of 1993. 75 Article 48(6) of the Hong Kong Basic Law of 1990; Article 50(9) of the Lei Básica de Macau of 1993. 76 Article 48(9) of the Hong Kong Basic Law of 1990; Article 50(13) of the Lei Básica de Macau of 1993. 77 Article 55 of the Hong Kong Basic Law of 1990; Article 50(8) of the Lei Básica de Macau of 1993. 78 Article 48(7) of the Hong Kong Basic Law of 1990; Article 50(11) of the Lei Básica de Macau of 1993. 79 Article 48(12) of the Hong Kong Basic Law of 1990; Article 50(17) of the Lei Básica de Macau of 1993. 80 Article 48(13) of the Hong Kong Basic Law of 1990; Article 50(18) of the Lei Básica de Macau of 1993. 81 Article 74 of the Hong Kong Basic Law of 1990; Article 75 of the Lei Básica de Macau of 1993. 82 Article 48(11) of the Hong Kong Basic Law of 1990; Article 50(15) of the Lei Básica de Macau of 1993. 83 Article 55(1) of the Hong Kong Basic Law of 1990; Article 57(1) of the Lei Básica de Macau of 1993. 84 Article 56(2) of the Hong Kong Basic Law of 1990; Article 58(2) of the Lei Básica de Macau of 1993. 71 Scott

6 Comparative Constitutional Politics in the Chinese Special Administrative…

109

of Macau has the additional constitutional authority to formulate and enact administrative regulations,85 and to confer medals and titles of honour.86 One comparative empirical study found that the Chief Executives of Hong Kong, and by extension Macau, are more powerful than most of the world’s presidents.87 In Hong Kong, 35 out of 70 members of the Legislative Council belong to the “Functional Constituencies” selected by means other than universal suffrage. These tend to be members of the Establishment. In Macau, up to 19 out of 33 members of the Legislative Assembly (58%) were not chosen by popular elections. In principle and in practice, the Establishment coalitions of both Regions can command parliamentary majorities without having to secure victories in direct elections.88 Unique among subnational entities, the Special Administrative Regions, through their Chief Executives89 and Governments,90 may “maintain and develop relations and conclude and implement agreements with foreign states and regions and relevant international organizations in the appropriate fields” including but not limited to “the economic, trade, financial and monetary, shipping, communications, tourism, cultural and sports fields”.91 The Regions may “participate in international organizations and conferences not limited to states”,92 and “establish official or semiofficial economic and trade missions in foreign countries”.93 Treaties which were in force before the resumption of Chinese rule may continue to be effectuated in both Regions, whether or not China is a party to them.94 These provisions were not built on thin air but inspired by Hong Kong’s successful economic paradiplomacy experience as a “quasi-state”95 during the British era.96 In 1986 Hong Kong became a party to the General Agreement on Tariffs and Trade;97 in this capacity a founding member of the World Trade Organization (WTO) in 1995, just two years

85 Article

50(5) of the Lei Básica de Macau of 1993. Article 50(16). 87 Ma 2007. 88 As of March 2018, 35 seats in the Legislative Council are constituted through universal suffrage in Geographical Constituencies elections, whilst another 35 seats are constituted through Functional Constituencies elections. Yap 2017, p. 46. 89 Article 48(9) of the Hong Kong Basic Law of 1990; Article 50(13) of the Lei Básica de Macau of 1993. 90 Article 62(3) of the Hong Kong Basic Law of 1990; Article 64(3) of the Lei Básica de Macau of 1993. 91 Article 151 of the Hong Kong Basic Law of 1990; Article 136 of the Lei Básica de Macau of 1993. 92 Article 152(2) of the Hong Kong Basic Law of 1990; Article 137 of the Lei Básica de Macau of 1993. 93 Article 156 of the Basic Law; Art 141 of the Lei Básica. 94 Article 153 of the Hong Kong Basic Law of 1990; Article 138 of the Lei Básica de Macau of 1993. 95 Weng 1997, p. 43. 96 Ip 2016a, 953–68. 97 Wong 2007, p. 41. 86 Ibid.,

110

E. C. Ip

before the handover. Current or former officials of the Hong Kong Special Administrative Region have served in various leading posts in the international community, including Chairman of the WTO General Council, President of the G7-established Groupe d’action financière, and Director-General of the World Health Organization. Despite the many differences between the ex-colonies’ paradiplomatic practices, the Lei Básica’s external relations clauses turn out to bear a peculiar likeness to the Basic Law’s.98 Macau’s paradiplomacy has picked up momentum since the handover. It has leveraged its significance in China’s global economic relations through significant meetings such as the World Tourism Organization’s ministerial roundtable; the Global Consultations Regional Meeting for Asia and the Pacific on International Protection for Refugees.99 It must be borne in mind that the Basic Law and the Lei Básica did not create from scratch Hong Kong and Macau and their life styles, legal institutions, and economies, which had been in place for some 150 and 450 years during the drafting processes, predating both the dates of the handovers, and even the founding of the People’s Republic of China in 1949.100 What the two constitutional charters mostly did was to affirm and conserve well-established institutions in these two Western European dependencies. These institutions are inevitably inconsistent in fundamental ways with those in neighbouring mainland China.

6.2.3 Fundamental Incoherence with the Chinese Constitution No comparative constitutional scholarship about the Chinese Special Administrative Regions can be complete without considering the built-in tensions between their “capitalist” constitutional charters and the “socialist” national Constitution of the People’s Republic of China. The National People’s Congress declared on the same days when it enacted the Hong Kong Basic Law and the Lei Básica de Macau that each charter is consistent with the Constitution of the People’s Republic of China. These declarations may have put to rest doubts about the validity of the Basic Law and the Lei Básica, but they failed to conceal the multiple inconsistencies of the Basic Law and the Lei Básica with China’s Constitution.101 The Preamble of the 1982 Constitution, last amended in 2018, enshrines Marxism-Leninism, none of whose originators were Chinese, as the supreme ideology of the State. Article 1 defines China as “a socialist State under the people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants”; and the “socialist system” as “the basic system” of the State, to be animated by “the leadership of the Communist Party of China”, the disruption of which “by any organization or individual is prohibited”. The Preambles of the Basic Law and the Lei Básica bluntly state the 98 Krebs

2000. and Wang 2011, p. 2. 100 Gan 2010. 101 Wang 2019, p. 330; Ghai 1993, p. 350. 99 Hao

6 Comparative Constitutional Politics in the Chinese Special Administrative…

111

opposite, that “the socialist system and policies will not be practised in [Hong Kong or Macao]”; Article 5 in both charters affirms that “the previous capitalist system and way of life shall remain unchanged for 50 years”. The constitutional recognition of capitalism’s foundational status in the Regions is seemingly refuted by Article 24(2) of the Chinese Constitution mandating the State to “champion core socialist values” such as “internationalism and communism” to “combat capitalist, feudal, and other decadent ideas”. Article 85 proclaims the Central People’s Government to be “the executive body of the highest organ of State power and is the highest organ of State administration”. Yet a common Article 22(1) of the Basic Law and the Lei Básica declares, “No department of the Central People’s Government and no province, autonomous region, or municipality directly under the Central Government may interfere in the affairs which [Hong Kong or Macao] administers on its own.” Contrary to the bills of rights contained in the Chapters III of the Basic Law and the Lei Básica which limit the duty of residents solely to “abid[ing] by the laws in force in the [Region]”,102 the Chinese Constitution enjoins heavier political burdens on Chinese citizens to “keep State secrets”, “observe labour discipline”, “respect social ethics”,103 “safeguard the security, honour, and interests of the motherland and … not commit acts detrimental to the security, honour, and interests of the motherland”,104 and to live up to “the sacred duty of every citizen of the People’s Republic of China to defend the motherland and resist aggression” and “the honourable duty of citizens of the People’s Republic of China to perform military service and join the militia”.105 It is a truism that constitutional rights “do not have primacy” in mainland China, as the Constitution is in no practical sense “the standard for judging the behaviour of state organs or citizens”.106 This follows naturally from the Leninist constitutional orthodoxy transplanted to China from the Soviet Union, whereby the Constitution is “merely a normative concretization of the general policies articulated in the Party program”; in other words, it is “what the Communist Party says it is”.107 The only organ in China vested with legal authority to interpret the Constitution is, unexpectedly, not the people’s courts, but the Standing Committee of the National People’s Congress,108 in which about 70% of seats are held by the Party, and the rest by members of the United Front led by the Party. In 2016, the Supreme People’s Court reiterated its explicit prohibition of Chinese judges citing the Constitution in

102 Article 42 of the Hong Kong Basic Law of 1990; Article 44 of the Lei Básica de Macau of 1993. 103 Article

53 of the Constitution of the People’s Republic of China of 1982 (Last Amended in 2018). 104 Article 54 of the Constitution of the People’s Republic of China of 1982 (Last Amended in 2018). 105 Article 55 of the Constitution of the People’s Republic of China of 1982 (Last Amended in 2018). 106 Mo 2009, p. 182. 107 Osakwe 1979, p. 1368. 108 Article 67(7) of the Constitution of the People’s Republic of China of 1982 (Last Amended in 2018).

112

E. C. Ip

their judgments.109 In November 2018, Xi, who also heads the Party’s new Central Comprehensive Ruling the State According to Law Committee, staunchly repudiated what he termed “Western Constitutionalism” and “Separation of Powers”.110 By contrast, the Hong Kong and Macau constitutions expressly declare that the courts of each Special Administrative Region are vested with the power “to interpret on their own, in adjudicating cases, the provisions of [the Basic Law or the Lei Básica] which are within the limits of the autonomy of the Region,”111 and “may also interpret other provisions of [the Basic Law or the Lei Básica] in adjudicating cases”,112 subject to the Standing Committee’s final interpretative power.113 And while Chinese officialdom rejects “separation of powers” as a description of the Hong Kong and Macau polities, the Basic Law and the Lei Básica do provide that the Regions “enjoy executive, legislative and independent judicial power, including that of final adjudication”;114 enjoin that the Governments of the Region should be “accountable” to the Legislative Council or the Legislative Assembly;115 and that legal proceedings may be brought against Executive Authorities in the courts.116 The courts of Hong Kong are to “exercise judicial power independently, free from any interference”.117 The courts of Macau are “subordinated to nothing but law and shall not be subject to any interference”.118 Their counterparts in mainland China do not enjoy the luxury of such unconditional independence. Article 131 of their Constitution mandates the people’s courts to “exercise adjudicatory power independently in accordance with the provisions of law, not subject to interference by any administrative organ, social group, or individual”. But the Party, the people’s congresses, and popular opinion are conspicuous by their absence from the list of prohibited interveners. Both the Hong Kong and Macau judiciaries, headed by the Court of Final Appeal and the Tribunal de Última Instância, respectively, have developed their own constitutional jurisprudence, although the former has been far more activist than the latter in reviewing legislation and administrative acts, in ways that can be explained by the disparate levels of internal fragmentation, external resistance, and political culture across the 109 Supreme

People’s Court. Notice on Issuing the Specifications for Preparing Civil Judgments by the People’s Courts and the Style of Civil Litigation, Document No 211 of 2016. 110 Xi 2018. 111 Article 158(2) of the Hong Kong Basic Law of 1990; Article 143(2) of the Lei Básica de Macau of 1993. 112 Article 158(3) of the Hong Kong Basic Law of 1990; Article 143(3) of the Lei Básica de Macau of 1993. 113 Article 158(1) of the Hong Kong Basic Law of 1990; Article 143(1) of the Lei Básica de Macau of 1993. 114 Article 2 of the Hong Kong Basic Law of 1990; Article 2 of the Lei Básica de Macau of 1993. 115 Article 64 of the Hong Kong Basic Law of 1990; Article 65 of the Lei Básica de Macau of 1993. 116 Article 35(2) of the Hong Kong Basic Law of 1990; Article 36(2) of the Lei Básica de Macau of 1993. 117 Article 85 of the Hong Kong Basic Law of 1990. 118 Ibid., Article 83.

6 Comparative Constitutional Politics in the Chinese Special Administrative…

113

Regions.119 Both Courts in principle agree that judges are competent in gauging whether legislation and administrative acts are consistent with fundamental norms, however.120 This marks a radical rupture with the stance adopted by the people’s courts of mainland China. The vast difference in constitutional aspirations and traditions between the mainland and the Regions render them deeply incompatible, mutually contradictory, and bound to clash, absent robust jurisdictional firewalls. In the absence of effective firewalls, it is virtually inevitable that the minuscule former British and Portuguese dependencies will be assimilated to the Leninist mainland, the world’s most populous state and second largest economy. The Basic Law and the Lei Básica are precisely such firewalls, “designed to prevent the [Chinese] Constitution, its rules and its logics to apply” in the Regions.121 Vast swathes of the Hong Kong public jealously guard this firewall as a non-negotiable bulwark of their fundamental rights and liberties. In June 2019, for instance, millions of people took to the streets in two of the largest demonstrations in all Hong Kong history against the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which would facilitate case-by-case extradition of persons in Hong Kong to the mainland, and which was universally feared as an assault on the Hong Kong criminal justice system’s autonomy from its Marxist-Leninist counterpart across the border. These protests snowballed into a leaderless, sometimes violent so-called “Water Revolution” taking its inspiration from Bruce Lee, the world-renowned Hong KongAmerican martial artist and movie star who famously taught in 1971 that “water can flow, or it can crash—be water, my friend”.122 The movement crushed the Bill to death when Secretary for Security John Lee conclusively withdrew it from the Legislative Council on behalf of Chief Executive Carrie Lam on 23 October 2019. The movement did not stop in any meaningful way until the outbreak of the COVID-19 pandemic in

119 Ip

2013. the Hong Kong Court of Final Appeal, Ng Ka Ling v Director of Immigration, judgement of 26 February 1999, 2 HKCFAR 4, at 25, the Court declared that: “Like other constitutions, [the Basic Law] distributes and delimits powers, as well as providing for fundamental rights and freedoms. As with other constitutions, laws which are inconsistent with the Basic Law are of no effect and are invalid. Under it, the courts of the Region have independent judicial power within the high degree of autonomy conferred on the Region. It is for the courts of the Region to determine questions of inconsistency and invalidity when they arise. It is therefore for the courts of the Region to determine whether an act of the National People’s Congress or its Standing Committee is inconsistent with the Basic Law, subject of course to the provisions of the Basic Law itself”. In Case 28/2006, at 31, Macau’s Tribunal de Última Instância decided: “If a court shall interpret the Lei Básica in adjudicating a case, and is certain that it could reach a conclusion that certain legal provisions or administrative regulations are in contradiction with the Lei Básica, under this circumstance, it must enforce the provisions of Article 11 of the Lei Básica: therefore, it shall not apply those regulations that contradict the provisions or general principles of the Lei Básica, without prejudice to Article 143 of that Law”. 121 Lemos 2018, p. 316. 122 Anderlini 2019. 120 In

114

E. C. Ip

early 2020, the consequent use of emergency social distancing measures, and China’s promulgation of a sweeping Hong Kong national security law in June 2020.

6.3 Constitutional Divergence in Action 6.3.1 The Path Towards Constitutional Democracy 6.3.1.1

Deeper Historical Differences

The unmistakable resemblance between the Hong Kong Basic Law and the Lei Básica de Macau might obscure two exceptional but real differences between them. The first is the Basic Law’s promise to transition to direct popular election of the Chief Executive and Legislative Council. Article 45(2) provides, “The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures.” Article 68(2) promises, “The ultimate aim is the election of all the members of the Legislative Council by universal suffrage.” Neither promise is found in the Lei Básica de Macau. This was largely due to the influence of a sizeable democratic movement in Hong Kong and lack thereof in Macau during the drafting of the charters. The Cultural Revolution spilled over from mainland China into Portuguese Macau in 1966 and into British Hong Kong in 1967 in the form of Maoist riots. The Macau riots, known as the “12–3 Incident”, aggravated the Macau citizenry’s distrust of the Portuguese administration, enabling pro-China business groups and pro-Communist labour unions and neighbourhood associations to fill the power vacuum and earn widespread support through the social services they delivered.123 China since then had maintained a strong political presence in Portuguese Macau, which it failed to achieve in British Hong Kong.124 By the time of the handover negotiations in the 1980s, China had already twice refused Portuguese offers to give Macau back. The outcome of the Hong Kong riots, which claimed 51 lives, including those of several young children, was exactly opposite. Their effective suppression rebooted the legitimacy of the British authorities “as perceived by most, if not all, of the Hong Kong people”.125 Hong Kong society developed a consensus that continued British rule was better than a takeover on any terms by the People’s Republic of China, wherefore most fled for fear of the Party.126 Anti-Communist sentiment eventually fuelled a local democracy movement, which went full-blown after the 4 June 1989 crackdown on the student movement in Tiananmen Square.127 Many in the Region 123 Hao

et al. 2017, p. 197. 2000, p. 197. 125 Wong 2009, p. 51. 126 Chen 2007, p. 658. 127 Lee 2016, p. 99. 124 Ghai

6 Comparative Constitutional Politics in the Chinese Special Administrative…

115

adhered passionately to the rule of law bequeathed by the English common law as their core civic identity versus China; as witness the practice which sustains long after the United Kingdom’s departure, of tens of thousands of Hong Kong residents gathering in Victoria Park to commemorate Tiananmen Square; or by the freedom enjoyed by Falun Gong followers to proselytise their religion in the face of China’s nationwide ban.128

6.3.1.2

The Struggle for Universal Suffrage in Hong Kong

The effect of the Basic Law adjourning universal suffrage to an unspecified date129 is not to indicate any real intention on the part of Beijing to establish a liberal democratic government in the Region even in the distant future. In a speech to the Basic Law Drafting Committee of 16 April 1987, Deng Xiaoping stated, “Hong Kong’s system of government should not be completely Westernized”, meaning its political structure should not replicate “Western democracy”.130 The belief was and still is widespread in China that devolution would destabilise the State and subvert the authority of the Party.131 The universal suffrage clauses were not a sincere promise to endow Hong Kong with what it had never possessed, namely, constitutional democracy, but a tactical step to bolster international and domestic confidence in the post-British settlement. Many aggrieved residents took the Basic Law’s democratisation and human rights guarantees at face value none the less.132 It follows that the Basic Law facilitated coordination of opposition to the regime it founded.133 The charter’s glittery promises inspired a popular ideal of democratic constitutional order upheld by authoritarianism’s subjects, from parties from the Pan-Democratic Opposition to public intellectuals, human rights NGOs, social reformers, and activist citizens.134 The consequence is that no major policy can now be carried through without being criticised by parliamentarians, the mass media, and key opinion leaders.

128 Chen

2009, p. 758. 45(2) of the Hong Kong Basic Law of 1990 states that: “The method for selecting the Chief Executive shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures”. Article 68(2) of the Hong Kong Basic Law of 1990 states that: “The method for forming the Legislative Council shall be specified in the light of the actual situation in the Hong Kong Special Administrative Region and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all the members of the Legislative Council by universal suffrage”. 130 Deng 1987. 131 Chou 2010, p. 226. 132 Chou 2013, p. 39. 133 Lam 2018, p. 99. 134 Chan and Chan 2017, p. 137. 129 Article

116

E. C. Ip

Hong Kong politics has descended into a vicious cycle.135 Every instance of the erosion of China’s commitment to the Region’s internationally guaranteed autonomy, real or apparent, usually spurs resentment from the community, which leads to still more interference from the centre.136 Consider the following examples. An estimated half a million people poured into the streets on 1 July 2003, the sixth anniversary of the resumption of Chinese sovereignty, to express their anger against a draconian national security bill that sought to “prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, or theft of state secrets, to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies”,137 at the possible expense of the “freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration”.138 The Establishment almost immediately fractured. Without a safe majority in the Legislative Council, Chief Executive C.H. Tung had to rescind the bill in what became a “paradigmatic” political failure.139 Fearing that the Region would devolve into a “base” controlled by unnamed “foreign forces” to subvert China, Beijing abandoned its non-interventionism in Hong Kong politics, set up in the Party a Central Coordination Group on Hong Kong-Macau Affairs,140 and activated the Central People’s Government Liaison Office in Hong Kong that was to play a critical role in coordinating Establishment politicians, in order to secure the support the Chief Executive needs for legislation and supply.141 In April 2004 the Standing Committee of the National People’s Congress ruled out universal suffrage for elections to the Chief Executive and the Legislative Council in 2007 and 2008, while tolerating minor reforms to the electoral rules that stayed within bounds, conserving the Chief Executive Election Committee and the halfand-half proportion between the Functional and Geographical Constituencies in the Legislative Council. This decision was rendered at a time when it was widely felt that Hong Kong was “the richest and most developed society in history that is not governed by an electoral democracy”.142 Consider another example. In September 2012 student activist groups launched a headline-grabbing hunger strike as tens of thousands occupied Government Square to denounce the “moral and national education” to be made mandatory in the primary school curriculum to the detriment of school children’s freedom of conscience, a right safeguarded by Article 32(1) of the Basic Law.143 The press and civil society, appalled by the Government’s “uncompromising attitude and non-transparent style” 135 Davis

2015, p. 295. and Tang 2012, p. 147. 137 Article 23 of the Hong Kong Basic Law of 1990. 138 Article 27 of the Hong Kong Basic Law of 1990. 139 Chen 2017, p. 131. 140 Fong 2017b, p. 527. 141 Chen 2019bb, p. 45. 142 Diamond 2008, p. 5. 143 Jones 2015, p. 234. 136 Sing

6 Comparative Constitutional Politics in the Chinese Special Administrative…

117

in pushing the curriculum,144 joined into condemn it as “brainwashing” due to its denunciation of multi-party electoral democracy so cherished by Hong Kongers and glorification of the Communist Party as “progressive, selfless and cohesive”. Chief Executive C.Y. Leung eventually backed down and temporarily suspended the controversial bill. And then in June 2014 the State Council’s Information Office published a White Paper provocatively laying claim to a “comprehensive power of rulership and governance” (quanmian guanzhiquan) over the Hong Kong Special Administrative Region, and demanding that the Hong Kong polity must yield absolute priority to China’s “sovereignty, security and development interests”, and that the Region’s common law judges must be “loyal to the country [China]” and “subject to oversight by the central government”.145 Recall that in Hong Kong’s Basic Law, Article 45(2) qualifies “the ultimate aim” of selecting the Chief Executive “by universal suffrage” by subordinating it to candidate’s pre-nomination “by a broadly representative nominating committee in accordance with democratic procedures”.146 This committee differs from other nomination methods like civic nomination. On 31 August 2014 the Standing Committee of the National People’s Congress delivered a fateful Decision confirming that all candidates for any Chief Executive election based on universal suffrage, in order to qualify, must have been vetted by a Nomination Committee whose make-up is to be subject to Party-state approval.147 Beijing further determined that the Nomination Committee may nominate at most three candidates.148 The Decision effectively certified the Party’s de facto prerogative to disqualify any Hong Kong resident, Establishment politicians included, to run for Chief Executive.149 On 28 September 2014, the Region made international headlines when riot police rained down tear gas onto protestors outside Government Headquarters in Admiralty. The protestors, who were denouncing the Decision as illegitimate ideological lockup,150 used umbrellas to resist the assault, after which the movement was called the Umbrella Movement,151 the largest protests under Chinese sovereignty since 1989,152 anywhere until the outbreak of the anti-extradition bill movement in 2019. This 79-day resistance movement occupied several of Hong Kong’s busiest business 144 Kwong

and Yew 2013, p. 63. Office of the State Council of the People’s Republic of China 2014. 146 Article 45(2) of the Hong Kong Basic Law of 1990. 147 Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 of 2014. 148 Explanations on the Draft Decision of the Standing Committee of the National People’s Congress on Issues Relating to the Selection of the Chief Executive of the Hong Kong Special Administrative Region by Universal Suffrage and on the Method for Forming the Legislative Council of the Hong Kong Special Administrative Region in the Year 2016 of 2014. 149 Ip 2019a, p. 187. 150 Chen 2017, p. 131. 151 Tse 2015, p. 110–11. 152 Minzer 2018, p. 32. 145 Information

118

E. C. Ip

districts en masse in defiance of law enforcement agencies and public order laws, in which an estimated 1.2 million people participated in various ways.153 It merits special attention in the evolution of social movements in Hong Kong.154 Firstly, its many organisers and participants deliberately defied public security laws for a prolonged period, marking a radical break from the famed “peaceful, rational, nonviolent and non-profane” law-abidingness of public rallies in Hong Kong history.155 Secondly, the protestors were demanding that an organ expressly provided in Hong Kong’s constitution should be abolished. Both manoeuvres evinced a consolidating trend to resist Beijing whenever it overrules popular democratic aspirations under colour of a literal reading of the Basic Law, or an invocation of national security.156 The failure of the Umbrella Movement implicated the Party-state’s intransigence on electoral reform in Hong Kong thenceforth, even in face of unprecedented popular mobilisation.157 Nevertheless, the Movement did give new impetus to youth political activism158 and to the so-called “localism” movement, who advocate everything from outright independence to localist self-determination under Chinese sovereignty.159 On 7 November 2016 the Standing Committee handed down its fifth Interpretation of the Basic Law,160 in the midst of a paradoxical and unprecedented High Court judicial review proceeding initiated by the Chief Executive and Secretary for Justice against the Legislative Council. The Interpretation expressly addressed the alleged derogations from the official oaths taken by two popularly elected localist Members of the Legislative Council a month earlier, and the growing trend of irregular oathtaking by Opposition Members generally. The Interpretation innovated a nonce law empowering an undefined “person administering the oath” to instantly disqualify officials, parliamentarians or judges from office, in his sole discretion, merely if he deems that their oaths to “bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China” were somehow “not sincere or not solemn”, or if he witnesses them “intentionally reading out words which do not accord with the wording of the oath prescribed by law”.161 Constrained by the Interpretation, the High Court had no choice but to disqualify, with retroactive effect, six Opposition parliamentarians in total, five of them popularly elected by hundreds of thousands of voters,162 in Chief Executive of HKSAR v 153 Hui

2015. 2019b, p. 147. 155 Yuen 2018. 156 Ip 2016b, p. 76. 157 Lim and Ping 2015, p. 147. 158 Lee 2017, p. 102. 159 Chan and Chan 2017, p. 142. 160 Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress of 2016. 161 Section 2(4) of the Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress of 2016. 162 [2017] 1 HKLRD 460; [2017] 4 HKLRD 115. 154 Ip

6 Comparative Constitutional Politics in the Chinese Special Administrative…

119

President of the Legislative Council 163 and in Chief Executive of HKSAR v President of the Legislative Council.164 This exposed each of the defendant members to legal claims by the Legislative Council for a remission of their salaries and allowances, not to mention their high litigation fees.165 These incidents coincided with the ascendancy of heavy-handed authoritarianism in Hong Kong politics, which tends toward the relative neglect of individual liberties to concentrate on the defeat of Opposition politicians by hook or by crook, but especially by rigging elections with a variety of tactics:166 intimidating dissidents; disqualifying electoral candidacies and elected parliamentarians; selectively prosecuting activists, particularly those of the Umbrella Movement.167 This formed the constitutional climate against which the “perfect storm”168 of the anti-extradition bill movement of 2019 erupted. Predictably, the movement has been seized by Chinese authorities as an opportunity to expand their influence over the Region. On 7 August 2019, for instance, the Director of the State Council Hong Kong and Macao Office face-to-face briefed 500 members of the National People’s Congress and Chinese People’s Political Consultative Conference from Hong Kong about the Party-state’s latest expectations on their role during the crisis, in such a way as if that Office were the “second government” of Hong Kong.169 The fourth plenary session of the nineteenth Central Committee of the Party, which closed on 31 October 2019, consolidated Beijing’s latest heavy-handed approach to Hong Kong, and by extension, Macau. The plenary session, among other things, declared the Party’s intentions to enhance the Chinese Central Authorities’ comprehensive power of rulership over the Special Administrative Regions through stronger national security law and enforcement.170 And the rest was history.

6.3.1.3

Electoral Reform in Macau

The Lei Básica de Macau does not vow ever to institute universal suffrage in Chief Executive and Legislative Assembly elections; it only allows the Region to review its electoral rules after 2009.171 Departing radically from the Basic Law, it does not even guarantee a Legislative Assembly “constituted by elections”;172 it only requires the “majority”173 of its members to be elected.174 There can be in Macau no viable 163 [2017]

1 HKLRD 460. 4 HKLRD 115. 165 Kwong 2018. 166 Fong 2017a, p. 782. 167 Dapiran 2017, p. 106. 168 Chen 2019a. 169 Purbrick 2019, p 16. 170 Central Committee of the Chinese Communist Party 2019. 171 Section 7, Annex I and Section 3, Annex II of the Lei Básica de Macau of 1993. 172 Article 68 of the Hong Kong Basic Law of 1990. 173 Article 68(2) of the Lei Básica de Macau of 1993. 174 Cardinal 2013, p. 409. 164 [2017]

120

E. C. Ip

mass democracy movement coordinating over express promises to introduce full universal suffrage, simply because such provisions do not exist in the Lei Básica. Macau residents have historically taken a more positive view of Communist-ruled China than their neighbours in Hong Kong. Following the Sino-Portuguese Joint Declaration, and after Tiananmen, there was no mass exodus from Macau.175 Opinion polls have suggested that Macau residents self-identify as “Chinese” more than those living in Taiwan and Hong Kong;176 there is no meaningful localist movement. The Macau populace rarely second-guesses their Government’s deference to the Central People’s Government, even in policy domains within the ambit of its “high degree of autonomy”.177 Compared to Hong Kong’s Pan-Democratic Opposition, Macau’s Pro-Democracy Opposition is too minuscule to exercise enough influence to mobilize against regime transgressions of rights and liberties effectively.178 In 2012, the Establishment sodalities Jiangmen Communal Society and United Citizens Association countered the flagship Pro-Democracy group, the New Macau Association, with 17,000 signatures and 6800 reports in support of the Government, when the democrats tried to rally public support for their proposal on electoral reform.179 Polls further suggest that the people of Macau show very little interest in public affairs.180 Macau residents eschew political activism to concentrate on making a living.181 Macau’s tourism performance was far better than Hong Kong’s, especially after the deregulation of gaming.182 Rare public resentments, like those arising from the unexpected arrest of the Secretary for Transport and Public Works in 2006 on corruption charges, are assuaged by the Government by the use of ad hoc social welfare benefits, public subsidies, even “cash handouts” under the Wealth Partaking Scheme.183 The Region’s close-knit society of neighbourhood associations and communal leaders is very receptive to co-optation by the Government of the Region and Central People’s Government.184 From 2006 onwards, the Labour Day protest and the Democratic Rally held on the anniversary of the resumption of Chinese rule stood out.185 In general, public protests are becoming a growingly popular channel for expressing socio-economic grievances in the aftermath of the liberalisation of the gambling industry, for instance, or government-business collusion scandals.186 However, they never exert any pressure onto the authorities to democratise Macau. Rallies centre almost singularly on socio-economic controversies like labour rights, 175 Tso

2012, p. 20. 2010. 177 Sheng 2016, p. 525. 178 Lo 2001, p. 96. 179 Kwong 2017, p. 127. 180 Zheng and Wan 2014, p. 137. 181 Ibid., p. 146. 182 Ibid., p. 158. 183 Ibid., p. 187. 184 Bush 2016, p. 224. 185 Wong 2017, p. 59. 186 Zheng and Wan 2014, p. 135. 176 Lam

6 Comparative Constitutional Politics in the Chinese Special Administrative…

121

the rising cost of living, official venality, and the scarcity of parking spaces.187 In this harmonious political climate, a tough National Security Law (Lei relativa à defesa da segurança do Estado) passed through Macau’s Legislative Assembly in January 2009 with essentially no popular opposition; the bill had only been introduced in October 2008, less than three months earlier.188 This Law, as it currently stands, criminalises even “preparatory acts” to treason, secession and subversion, visiting on convicts a minimum of three years and a maximum of twenty-five years in prison.189

6.3.2 Executive-Legislative Relations The second point upon which the Hong Kong and Macau polities differ pertains to the institutional design of executive-legislative relations. The Basic Law is understood by many to require the separation of the Government from the Legislative Council, against one and a half centuries of British colonial practice. Article 79(4) of the Basic Law obligates the President of the Legislative Council to disqualify a Member of the Council whenever the latter “accepts a government appointment and becomes a public servant”. It is therefore commonly believed that Hong Kong’s polity is a presidential one more like the United States than the United Kingdom.190 In stark contrast, the Lei Básica de Macau not only does not feature anything remotely similar to this provision, but even vests in the Chief Executive, by Article 50(7), a power to “appoint part of the members of the Legislative Assembly”. This provision, entirely absent in the Hong Kong Basic Law, has allowed the Government of Macau to maintain a formidable presence in its Legislative Assembly. Hong Kong has been trapped in a “political quagmire of executive-legislative disconnection” since the resumption of Chinese sovereignty.191 The Chief Executive lacks leverage to secure a stable majority in the Legislative Council for himself.192 The Establishment remains a loose coalition with no official unifying manifesto, clear lines of control, or standard member enrolment procedure. Establishment parliamentarians are divided into the business and leftist factions, who are normally opponents in other jurisdictions, which causes a scattering of preferences across the fiscal and social policy gamut, such that Establishment Members of the Legislative Council (MLCs) routinely cross over and resist the Government of the day on single issues.193 The neo-liberal Liberal Party is much more pro-business than the centrist Democratic Alliance for the Betterment and Progress of Hong Kong, whereas the Hong

187 Lam

2011, p. 38. 2013, p. 42. 189 Lo 2019, p. 455. 190 Wong 2017, p. 149. 191 Fong 2018, p. 53. 192 Lee and Yeung 2017, p. 123 (2017). 193 Zhang 2009, p. 322–23. 188 Chou

122

E. C. Ip

Kong Federation of Trade Unions, another flagship Establishment party, historically adhered to Marxist-Leninist-Maoism.194 Sociologist Lau Siu-kai, from 2002 to 2012 head of the Government’s in-house think tank, and currently the founding vice-chair of the semi-governmental Chinese Association of Hong Kong and Macao Studies, which reports to the State Council, recently observed that the Region “has been saddled with ineffective governance” because of “incapable leadership, lack of solidarity in the governing coalition, discord between the executive and the legislature, obstruction of the judiciary, weak public support, frequent collective protests, and difficulties in implementing new policies”.195 In his view, the Establishment lacks “cohesion and a unified leadership”,196 and its factions, made up of elites of the former colonial regime and more traditional pro-Beijing politicians, “fought fiercely, with resulting hostility not only between the two camps, but also among individuals”.197 The appointment of leading Establishment MLCs to the Executive Council by successive Chief Executives has failed to translate into unconditional support for the Government in the Legislative Council.198 This should surprise no one, as the Executive Council, despite its name, is merely a consultative body that takes no policy decisions on its own.199 None of the four Chief Executives so far has secured a dominant position in the legislative process.200 Given its continual majority, the Establishment ought to have a better overall legislative success rate than the mediocre 56.29% it posted between 1998 and 2016.201 Withdrawal of bills by the Government is common;202 39.84% of legislative initiatives originally planned in the Government’s program are shelved or postponed.203 The Pan-Democratic Opposition occasionally manages to leverage enough residual power to exercise negative control over policy, chiefly by filibustering through head-count requests and lengthy speeches.204 As of 2019, the Legislative Council had rejected two out of three proposals from the Chief Executive to modify the Basic Law, the Establishment’s majority of seats notwithstanding.205 A “perpetual governing crisis” has plagued Hong Kong regardless of who is Chief Executive;206 however, this absolves neither the Chief Executive nor his or her ministers of responsibility for their “mistaken and defective administration”.207 Chief Executive 194 Wong

2017, p. 152. 2017, p. 85. 196 Ibid., p. 152. 197 Ibid., p. 151. 198 Wong 2017, p. 151. 199 Article 56(1) of the Hong Kong Basic Law of 1990. 200 Wong 2017, p. 149. 201 Fong 2018, p. 54–55. 202 Ibid., p. 46. 203 Ibid., p. 55. 204 Ma 2018, p. 37. 205 Young 2015, p. 502–03. 206 Wong 2017, p. 39. 207 Goodstadt 2018, p. 1. 195 Lau

6 Comparative Constitutional Politics in the Chinese Special Administrative…

123

Carrie Lam’s hard-line determination to “bypass normal consultation and legislative procedures” to push through the above-mentioned extradition bill in 2019, and her intransigence even after one million people protested against it;208 to resist rescinding it even after two million people marched against it a week later, thereby triggering the anti-extradition bill movement, arguably the greatest crisis in Hong Kong history excepting the Second World War, is only the latest in a string of political debacles since the Handover. Unlike Macau, a Hong Kong Chief Executive has yet to complete two consecutive terms, or ten years in office. The Macau Chief Executive can appoint one-fifth of the Legislative Assembly’s Members. The Establishment coalition comprises the so-called Big Three factions:209 the Associação Comercial de Macau, the Macau Federation of Trade Unions, and the General Union of Neighbours Association of Macau. These three have never descended into the infighting that has debilitated the Hong Kong Establishment. In spite of all the differences between the upstart casino faction and the traditional corporate constituents, all share the overarching conviction that questions of electoral reform must be settled by China’s central authorities and that society had better concentrate on economic than political matters. All adhere to the self-discipline of keeping comity with the Chief Executive, who has succeeded over and over again with political co-optation and consensus-building tactics, resulting in a near-absence of confrontation between Macau’s Executive and Legislative.210 Undoubtedly, most in the legislature take seriously a convention of informally finding solutions before proceeding to a formal session.211 All Establishment legislators, whether of the traditional Three or of the newer casino one, have kept to an “unwritten rule” that “vetoing government bills may create a perception of ‘social disharmony’ and ‘disunity of progovernment force’”.212 The Pro-Democracy Opposition is minuscule: in 2019 it could count only five out of thirty-three seats in the Legislative Assembly.213 It is so weak that it cannot even play any significant role in roll call votes.214 The Macau legislature has no specialised committees like the Finance Committee of Hong Kong’s Legislative Council, which might scrutinise expenditure bills, public works projects or the creation of senior positions.215 The Establishment majority shows little enthusiasm in calling out policy failures or imprudent public spending practices.216 Notably, two Opposition Assemblymen, holding less than one-tenth of seats in the legislature

208 Chan

2019, p. 454. 2015, p. 28–29. 210 Lo 2012, p. 23. 211 Lo 2001, p. 97–98. 212 Ibid., p. 130. 213 Lo 2001, p. 521. 214 Jang 2018, p. 543. 215 Yee 2014, p. 12. 216 Chou 2005, p. 200; Sheng 2016, p. 529. 209 Chou

124

E. C. Ip

raised more than half of all written questions before the Government from 1999 to 2009.217 The legislative success rate between 1998 and 2005 was 100%. Each of the 78 bills proposed by Chief Executive Edmund Ho were endorsed.218 The cumulative legislative success rate from 1999 to 2013 stood at 98.4%.219 The Establishment maintained their solidarity with the Chief Executive even when faced with divisive laws like the Labour Relations Law 2008, Antitobacco Law 2011, and Land Law 2014.220 Interestingly, and ironically, the Macau style of governance is actually more conciliatory than Hong Kong’s, notwithstanding that Macau’s is incomparably more powerful than Hong Kong’s Chief Executive. Consider the exceptionally rare “Anti-Welfare Package” demonstrations in May 2014, in which roughly 20,000 residents, the largest mass mobilisation since the resumption of Chinese sovereignty,221 expressed their disapproval of the Welfare Package for Designated, Incumbent and Former Chief Executives and Principal Officials bill introduced by Chief Executive Fernando Chui.222 The controversy centred on Section 4, which seeks to create immunity from criminal prosecution for acts of the Chief Executive while in office,223 and Section 5, which attempts to guarantee a monthly allowance equal to 70% of the Chief Executive’s monthly salary for former Chief Executives.224 The staid middle classes and the activist grassroots, August civil servants and starry-eyed students alike converged on one conclusion: the bill was an egregious abuse of public power, decriminalising corruption in the legal system.225 The next day Chief Executive Chui asked the Legislative Assembly to postpone reading the Bill,226 and after 7000 disaffected protestors surrounded the Legislative Assembly building to voice their unappeased anger, the Chief Executive convened a press conference on 29 May to announce that the Government was withdrawing the Bill.227 In a similar vein, in August 2019, the Government announced the suspension of the controversial Sovereign Wealth Fund bill it had introduced only days earlier. The Bill, if enacted, would have transferred as much as 60 billion patacas (USD 7.4 billion) from Macau’s financial reserves into a Macau Investment and Development Fund Management Limited. In a press conference held on August 5, Chief Executive Chui admitted that the public had “raised various views” on the matter, and that the Government must offer residents “more explanations” so as to “allay public

217 Yu

2011, p. 64–65. 2017, p. 132. 219 Ibid., p. 131. 220 Ibid. 221 Ieong 2017, p. 505. 222 Hao 2015, p. 86. 223 Ieong 2017, p. 506. 224 Ibid., p. 507. 225 Ibid. 226 Lam 2014 227 Hao 2015, p. 86–88. 218 Kwong

6 Comparative Constitutional Politics in the Chinese Special Administrative…

125

concerns”.228 Two days later, the Legislative Assembly voted unanimously to strike debate on the bill off the agenda. A potential crisis had been successfully averted. This stands in sharp contrast to Hong Kong Chief Executive Carrie Lam’s intransigent stance in pushing the explosive extradition bill, and in refusing to establish an independent Commission of Inquiry according to the Commission of Inquiry Ordinance (Cap. 86) to investigate alleged police violence, which together culminated in the anti-extradition bill movement of 2019 that disrupted business and tourism. The Chief Executive’s unwillingness to resort to political solutions has placed the Hong Kong Police in the unenviable and indeed impossible position as both “the face of government and the target of protesters”, itself engendering another kind of vicious cycle: public anger at the Government has been directed at the Police, causing officers to become increasingly angry and violent in their response, which then yields even greater anger amongst protestors.229

6.4 Conclusion The Hong Kong Basic Law and the Lei Básica de Macau, enacted, respectively, shortly before and after the dissolution of the Soviet Union, by the National People’s Congress of the People’s Republic of China, established “de facto self-regulated”230 subnational “quasi-states”231 enjoying “a high degree of autonomy”,232 which were supposed to be self-governing up to the middle of the twenty-first century and beyond. These two constitutional charters converge remarkably and in many ways are identical. They act as jurisdictional firewalls that keep the political, economic, legal and social systems of the Special Administrative Regions separate from those of mainland China. They were products of China’s pragmatic concession that methods suitable for ruling the mainland will hardly work in these former Western European dependencies, whose continued independence is doubtlessly beneficial to the People’s Republic’s economy and place in the world.233 Both charters provide for political systems that are “fundamentally antagonistic” to, and “clearly lack doctrinal support” from the Leninist Constitution of China.234 One would have expected, from a formalist legal perspective, that the Regions constituted by the Basic Law and the Lei Básica in 1997 and 1999 should have followed political trajectories that are mostly alike. This chapter has shown how the obvious convergence of these two constitutional charters on the law books can conceal a deep-rooted divergence of their practical 228 Macau

News 2019. 2019, p. 12. 230 Song 2015, p. 154. 231 Jiang 2017, p. 113. 232 Article 2 of the Hong Kong Basic Law of 1990; Article 2 of the Lei Básica de Macau of 1993. 233 Chan 2019. 234 Fu et al. 2007, p. 3. 229 Purbrick

126

E. C. Ip

political pathways in the “One China, Two Systems” framework. The single most important arena of political conflict in post-British Hong Kong centres on the pace of electoral reform toward universal suffrage, as witness the Umbrella Movement of 2014235 and the anti-extradition bill movement of 2019–2020. The negligible democracy movement in Macau cannot be compared to its Hong Kong counterpart and no significant constitutional contest between the Macau community and the Chinese Central People’s Government has ever erupted. Already delicate executive-legislative relations have been vitiated in Hong Kong by the fragmentation of Establishment groups and the increasingly hard-line approach of recent Chief Executives;236 the consequent political radicalisation and polarisation of ordinary residents; and above all, “a lack of elite cohesion, a confused institutional logic, flawed political strategies”.237 Whereas in Macau, executive-legislative relations are characterised by comity, consensus and cohesion. Macau residents are generally more receptive to mainland China and the Chinese identity than their Hong Kong neighbours. And Macau Chief Executives generally show more sensitivity to thorny political issues and more responsiveness to public outrage than Hong Kong Chief Executives. This has allowed Macau to adopt a more compromising, conciliatory mode of governance. This chapter has argued that the crisis of governance in Hong Kong and the relative success of Macau’s governance both have clear origins in their constitutions: the Basic Law’s promises of universal suffrage for general elections, which are completely absent from the Lei Básica, have become focal points of mass coordination against perceived regime transgressions;238 in contrast, the Lei Básica’s entitling the Chief Executive to handpick legislators to the Legislative Assembly, unlike the Basic Law’s apparent strict separation of the Government and the Legislative Council, has granted the Government of Macau a powerful presence in the legislature. These differences, minor as they seem, have had very real consequences for the political histories of China’s only two Special Administrative Regions. The Basic Law’s framers, when they wrote universal suffrage into its text, may have wished to boost confidence in the post-British epoch without any real intention of delivering constitutional democracy to the Hong Kong populace. But now China must deal with the consequences of Hong Kongers staking their claim to it according to the Basic Law’s express promises. It is in China’s perennial self-interest to uphold the dogmas of “One China, Two Systems”, “Hong Kong People Rule Hong Kong”, “Macau People Rule Macau”, and “High Degree of Autonomy”. The marginal utility to China of “mainlandising” these former British and Portuguese dependencies is nil, while the costs are doubtlessly very high. In the final analysis, the exceptionally autonomous arrangements of the Special Administrative Regions have long been utilised by Beijing as a field laboratory to experiment new policies before applying them to parts of mainland China.239 Ambitious integration initiatives from the Central People’s Government, 235 Ip

2015.

236 Cheung

2019, p. 104. 2018, p. 21. 238 Ip 2016b. 239 Ibid., p. 342. 237 Ma

6 Comparative Constitutional Politics in the Chinese Special Administrative…

127

such as the 2018 “Greater Bay Area” project that aims to accelerate the integration of Hong Kong’s and Macau’s economies into Guangdong Province’s prosperous and dynamic Pearl River Delta area, with a projected GDP of US$2.8 trillion by 2025,240 may well prove counterproductive. Differences in border controls, currencies, legal traditions, taxation systems, and rules of investment between the Special Administrative Regions and Guangdong, alongside serious issues of local protectionism and corruption, present formidable obstacles to the viability of the program.241 That being said, there is “mounting evidence” that the economic and political absorption of the two former European dependencies into China’s southern economic region has already begun.242 Had it all along been the plan to have Hong Kong and Macau fully assimilated into the mainland on midnight 30 June 2047 and 19 December 2049, the National People’s Congress would have already made it crystal clear in the Basic Law and the Lei Básica.243 Yet, not a single provision in either charter provides for its own demise on the above dates. Instead of uniformly assimilating Hong Kong and Macau to the mainland, turning them into nothing but two out of China’s some six hundred cities, the better approach for Beijing would be to retain the Regions’ unique legal identities that have sprung from centuries of European rule. Macau’s Portuguese roots have proved abundantly beneficial to China for deepening diplomatic relations with the Lusophone world – Portugal, Brazil, Cape Verde, Guinea-Bissau, Angola, Mozambique, and East Timor, combining a population of over 200 million across four continents—as one important alternative to its complex bilateral relationship with the United States.244 Hong Kong’s free, open, global, competitive marketplace, founded upon the Anglo-American common law tradition has empowered an authoritarian, half-closed China to reap the benefits of global capitalism and financial integration.245 Paradoxically, the more authoritarian China becomes, the more it must rely on Hong Kong’s English-speaking, liberal, common law system to perform tasks and functions that its mainland cities cannot.246

References Anderlini J (2019) Hong Kong’s “Water Revolution” Spins Out of Control. Financial Times, 2 September 2019 Bush R C (2016) Hong Kong in the Shadow of China: Living with the Leviathan. Brookings Institution Press, Washington DC. Available at https://www.brookings.edu/book/hong-kong-inthe-shadow-of-china-living-with-the-leviathan/

240 Florence

and Cabestan 2018, p. 3. 2018. 242 Wong and Xiao 2018, 416. 243 Morris 2007, p. 100. 244 Lanteigne 2013, p. 144. 245 Goodstadt 2018, p. 161. 246 The Economist 2019. 241 Sabine

128

E. C. Ip

Cardinal P (2013) Macau: Transformation of an Historic Autonomy. In: Ghai Y, Woodman S (eds) Practising Self-Government: A Comparative Study of Autonomous Regions. Cambridge University Press, Cambridge, pp 383–411 Central Committee of the Chinese Communist Party (2019) In Relation to Insisting on and Perfecting Socialist Systems with Chinese Characteristics; Decisions on Several Important Questions in Relation to Promoting the Modernisation of National Governance Systems and Governance Capacity [Chinese]. http://www.xinhuanet.com/2019-11/05/c_1125195786.htm Accessed 7 November 2019 Chan C (2019) Demise of “One Country, Two Systems”? Reflections on the Hong Kong Rendition Saga. Hong Kong Law Journal 49:447–458 Chan E, Chan J (2017) Hong Kong 2007–2017: A Backlash in Civil Society. Asia Pacific Journal of Public Administration 39:135–152 Chang J J (1988) Settlement of the Macao Issue: Distinctive Features of Beijing’s Negotiating Behavior. Case Western Reserve Journal of International Law 20:253–278 Chen A H Y (2007) A Tale of Two Islands: Comparative Reflections on Constitutionalism in Hong Kong and Taiwan. Hong Kong Law Journal 37:647–688 Chen A H Y (2009) The Theory, Constitution and Practice of Autonomy: The Case of Hong Kong. In: Oliveira J, Cardinal P (eds) One Country, Two Systems, Three Legal Orders - Perspectives of Evolution: Essays on Macau’s Autonomy after the Resumption of Sovereignty by China. Springer, Berlin, pp 751–767 Chen A H Y (2017) Social Movements and the Law: The Case of Hong Kong. In: Ng M H K, Wong J D (eds) Civil Unrest and Governance in Hong Kong: Law and Order from Historical and Cultural Perspectives. Routledge, New York, pp 117–140 Chen A H Y (2019a) A Perfect Storm: Hong Kong-Mainland Rendition of Fugitive Offenders. Hong Kong Law Journal 49:419–430 Chen A H Y (2019b) The Autonomy of Hong Kong under “One Country, Two Systems”. In: Lui T, Chiu S W K, Yep R (eds) Routledge Handbook of Contemporary Hong Kong. Routledge, New York, pp 33–51 Chen A H Y, Lo P Y (2018) The Constitutional Orders of “One Country, Two Systems”: A Comparative Study of the Visible and Invisible Bases of Constitutional Review and Proportionality Analysis in the Chinese Special Administrative Regions of Hong Kong and Macau. In: Dixon R, Stone A (eds) The Invisible Constitution in Comparative Perspective. Cambridge University Press, New York, pp 230–267 Cheng E W (2016) Street Politics in a Hybrid Regime: The Diffusion of Political Activism in Post-colonial Hong Kong. China Quarterly 226:383–406 Cheung C (2019) Stalemate in the Legislative Council of Hong Kong: Disarticulation, Fragmentation, and the Political Background of “One Country, Two Systems”. In: Lui T, Chiu S W K, Yep R (eds) Routledge Handbook of Contemporary Hong Kong. Routledge, New York, pp 89–108 Chou B K P (2005) Interest Group Politics in Macau after Handover. Journal of Contemporary China 14:191–206 Chou B K P (2010) Local Autonomy Matters: One-Country Two-System Policy in Macao and its Implications to China’s Policies towards Borderlands. In: Hao Y, Chou B K P (eds) China’s Policies on its Borderlands and International Relations. World Scientific, Singapore, pp 225–252 Chou B K P (2013) Local Autonomy in Action: Beijing’s Hong Kong and Macau Policies. Journal of Current Chinese Affairs 42:29–54 Chou B K P (2015) Politics and Social Organisations in Macao: A Historical Institutionalist Analysis. China: An International Journal 13:22–42 Crawford J (2006) The Creation of States in International Law. Oxford University Press, New York Dapiran A (2017) City of Protest: A Recent History of Dissent in Hong Kong. Penguin Random House, Docklands Davis M C (1997) Constitutionalism in Hong Kong: Politics versus Economics. University of Pennsylvania Journal of International Economic Law 18:157–193

6 Comparative Constitutional Politics in the Chinese Special Administrative…

129

Davis M C (2007) Interpreting Constitutionalism and Democratization in Hong Kong. In: Fu H, Harris L, Young S (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York, pp 77–95 Davis M C (2015) The Basic Law, Universal Suffrage and the Rule of Law in Hong Kong. Hastings International and Comparative Law Review 38:275–298 Deng X (1987) Speech at A Meeting With the Members of the Committee For Drafting the Basic Law of the Hong Kong Special Administrative Region. https://dengxiaopingworks.wordpr ess.com/2013/03/18/speech-at-a-meeting-with-the-members-of-the-committee-for-drafting-thebasic-law-of-the-hong-kong-special-administrative-region/ Accessed 6 November 2019 Diamond L (2008) Prospects for Democratization in Hong Kong: A Comparative Perspective. In: McGiffert C, Tang J (eds) Hong Kong on the Move: 10 Years as the HKSAR. The CSIS Press, Washington DC, pp 3–17 Florence E, Cabestan J P (2018) Twenty Years After: Hong Kong’s Changes and Challenges Under China’s Rule. China Perspectives 3:3–7 Fok K (2001) The Existence of Macau: A Chinese Perspective. In: Macau Ricci Institute (ed) Macau on the Threshold of the Third Millennium. Instituto Ricci de Macau, Macau, pp 13–38 Fong B C H (2017a) In-between Liberal Authoritarianism and Electoral Authoritarianism: Hong Kong’s Democratization under Chinese Sovereignty, 1997–2016. Democratization 24:24–750 Fong B C H (2017b) One Country, Two Nationalisms: Center-Periphery Relations between Mainland China and Hong Kong, 1997–2016. Modern China 43:523–556 Fong B C H (2018) Executive-Legislative Disconnection in the HKSAR: Uneasy Partnership Between Chief Executives and Pro-Government Parties, 1997–2016. In: Fong B H C, Lui T (eds) Hong Kong 20 Years After the Handover: Emerging Social and Institutional Fractures After 1997. Palgrave Macmillan, Cham, pp 45–72 Fu H, Harris L, Young S N M (2007) Introduction. In: Fu H, Harris L, Young S (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York, pp 1–14 Gan C (2010) The Basic Laws and Central-Hong Kong and Macau Relations in the Light of the Spirit of the Contract. Studies of “One Country, Two Systems” 6:11–21 [Chinese] Ghai Y (1993) The Rule of Law and Capitalism: Reflections on the Basic Law. In: Wacks R (ed) Hong Kong, China and 1997: Essays in Legal Theory. Hong Kong University Press, Hong Kong, pp 343–365 Ghai Y (2000) The Basic Law of the Special Administrative Region of Macau: Some Reflections. International and Comparative Law Quarterly 49:183–198 Ghai Y (2013) Hong Kong’s Autonomy: Dialects of Powers and Institutions. In: Ghai Y, Woodman S (eds) Practising Self-Government: A Comparative Study of Autonomous Regions. Cambridge, pp 315–348 Goodstadt L F (2018) A City Mismanaged. Hong Kong’s Struggle for Survival. Hong Kong University Press, Hong Kong Gordon N (2013) Macau and Hong Kong Enjoy the Best of Both Worlds. South China Morning Post, 1 August 2013 Hao Z (2015) Social Stratification and Ethnic and Class Politics in Macao before and after the Handover in 1999. China: An International Journal 13:66–92 Hao Y, Wang J (2011) Introduction. In: Hao Y, Wang Z (eds) Macao and U.S.-China Relations. Lexington Books, Lanham, pp 1–24 Hao Y, Sheng L, Pan G (2017) Political Economy of Macao since 1999: The Dilemma of Success. Palgrave Macmillan, Singapore Hauss C, Haussman M (2013) Comparative Politics: Domestic Responses to Global Challenges. Wadsworth, Boston Hendry I, Dickson S (2018) British Overseas Territories Law. Hart Publishing, London Hui V T (2015) Hong Kong’s Umbrella Movement: The Protests and Beyond. J Democracy 26:111– 121 Ieong M U (2017) Macao and Hong Kong, Convergence or Divergence? The 2014 Retirement Package Bill Protest and Macao’s Governance Crisis. Asian Survey 57:504–527

130

E. C. Ip

Information Office of the State Council of the People’s Republic of China (2014) The Practice of “One Country, Two Systems” Policy in the Hong Kong Special Administrative Region. Foreign Language Press, Beijing Ip E C (2013) The Evolution of Constitutional Adjudication in the Chinese Special Administrative Regions: Theory and Evidence. The American Journal of Comparative Law 61:799–830. Available at https://doi.org/10.5131/AJCL.2013.0008 Ip E C (2015) Prototype Constitutional Supervision in China: The Lessons of the Hong Kong Basic Law Committee. Asian Journal of Comparative Law 10:323–342 Ip E C (2016a) Comparative Subnational Foreign Relations Law in the Chinese Special Administrative Regions. International and Comparative Law Quarterly, 65:953–968 Ip E C (2016b) Constitutional Conflict in Hong Kong Under Chinese Sovereignty. Hague Journal on the Rule of Law 8:75–99 Ip E C (2019a) Hybrid Constitutionalism. The Politics of Constitutional Review in the Chinese Special Administrative Regions. Cambridge University Press, New York Ip E C (2019b) Law and Justice in Hong Kong, 3rd edn. Sweet & Maxwell, Hong Kong Jang J (2018) Parliamentary Representation in the Macau Special Administrative Region: A Quantitative Analysis of Roll Call Voting Behavior in the 5th Legislative Assembly, 2013–2017. Contemporary Chinese Political Economy and Strategic Relations: An International Journal 4:513–555 Jiang S (2017) China’s Hong Kong: A Political and Cultural Perspective. Springer, Singapore Jones C (2015) Lost in China? Law, Culture and Identity in Post-1997 Hong Kong. Cambridge University Press, Cambridge Krebs J R (2000) One Country, Three Systems? Judicial Review in Macau after Ng Ka Ling. Pacific Rim Law and Policy Journal 138:111–146 Kwong Y (2017) Ruling Coalition Restructuring under Macao’s Hybrid Regime. China Review 17:111–139. Available at https://www.jstor.org/stable/44371800 Kwong Y (2018) Political Repression in a Sub-national Hybrid Regime: the PRC’s governing strategies in Hong Kong. Contemporary Politics 24: 361–378 Kwong K M, Yew C P (2013) Hong Kong Politics: Weak Leadership, Frustrated Society and Prospect. East Asian Policy 5:55–65 Lam W (2010) Promoting Hybridity: The Politics of the New Macau Identity. China Quarterly 203:656–674 Lam J (2014) Macau Protests Force Chief Executive Fernando Chui to Scrap Controversial Perks Bill. South China Morning Post, 29 May 2014 Lam W (2018) Changing Political Activism: Before and After the Umbrella Movement. In: Fong B C H, Lui T (eds) Hong Kong 20 Years After the Handover: Emerging Social and Institutional Fractures After 1997. Palgrave Macmillan, Cham, pp 73–102 Lam J T M (2008) After Ten Years of Transfer of Sovereignty: Political Stability and Reforms in Hong Kong. New Zealand Journal of Asian Studies 10:21–37 Lam N M K (2011) The Impact of Gaming Liberalisation on Public Opinion and Political Culture. In: Lam N M K, Scott I (eds) Gaming, Governance and Public Policy in Macao. Hong Kong University Press, Hong Kong, pp 37–54 Lanteigne M (2013) Chinese Foreign Policy: An Introduction. Routledge, New York Lau S (2017) The Practice of “One Country Two Systems” Policy in Hong Kong. The Commercial Press, Hong Kong Lee C W (2016) Labor and Class Identities in Hong Kong: Class Processes in a Neoliberal Global City. Palgrave Macmillan, London Lee E W Y, Yeung R L K (2017) The “Principal Officials Accountability System”: Its Underdevelopment as a System of Ministerial Government. Asia Pacific Journal of Public Administration 39:120–134 Lee M Y K (2017) Lawyers and Hong Kong’s Democracy Movement: From Electoral Politics to Civil Disobedience. Asian Journal of Political Science 251:89–108

6 Comparative Constitutional Politics in the Chinese Special Administrative…

131

Lemos M M D (2018) The Basic Laws of Hong Kong and Macau as Internationally Shaped Constitutions of China and the Fall off of One Country, Two Systems. Tulane Journal of International and Comparative Law 27:277–338 Lemos M M D, Robalo L C (2019) Judicial Cooperation in Criminal Matters in the Special Administrative Regions of Hong Kong and Macau. Through the Lens of “One Country, Two Systems” and the Surrender of Fugitives to Mainland China. Revista Brasileira de Direito Processual Penal 5:737–772 Lim T W, Ping X (2015) Contextualizing Occupy Central in Contemporary Hong Kong. Imperial College Press, London Lo S S H (1995) Political Development in Macau. Chinese University Press, Hong Kong Lo S S H (2001) Constitutional Conventions and Political Development in Macau. In: Macau Ricci Institute (ed) Macau on the Threshold of the Third Millennium. Instituto Ricci de Macau, Macau, pp 93–100 Lo S S H (2012) Consultative Governance and Legitimacy in Macao: The Mix of Electoral and Public Sector Reforms. Public Administration & Policy 15:19–34 Lo S S H (2019) Hong Kong. In: Joseph W A (ed) Politics in China. An Introduction. Oxford University Press, New York, pp 517–537 Loh C (2018) Underground Front: The Chinese Communist Party in Hong Kong. Hong Kong University Press, Hong Kong Ma N (2007) Political Development in Hong Kong: State, Political Society, and Civil Society. Hong Kong University Press, Hong Kong Ma N (2018) From Executive Dominance to Fragmented Authority: An Institutional and Political Analysis. In: Fong B C H, Lui T (eds) Hong Kong 20 Years After the Handover: Emerging Social and Institutional Fractures After 1997. Palgrave Macmillan, Cham, pp 21–44 Macau News (2019) Government Formally Withdraws ‘Sovereign Wealth Fund’ Bill. https://mac aunews.mo/government-formally-withdraws-sovereign-wealth-fund-bill/ Accessed 6 November 2019 Mendes C A (2014) Macau in China’s Relations with the Lusophone World. Revista Brasileira de Política Internacional 57:225–242 Minzer C (2018) End of an Era: How China’s Authoritarian Revival is Undermining Its Rise. Oxford University Press, New York Mo J (2009) The Constitutional Law of the People’s Republic of China and its Development. Columbia Journal of Asian Law 23:137–184 Morris R J (2007) Forcing the Dance: Interpreting the Hong Kong Basic Law. In Fu H, Harris L, Young S (eds) Interpreting Hong Kong’s Basic Law: The Struggle for Coherence. Palgrave Macmillan, New York, pp 97–114 Osakwe C (1979) The Theories and Realities of Modern Soviet Constitutional Law: An Analysis of the 1977 USSR Constitution. University of Pennsylvania Law Review 127:1351–1437 Partlett W, Ip E C (2016) Is Socialist Law Really Dead? NYU Journal of International Law and Politics 48:463–511 Purbrick M (2019) A Report of the 2019 Hong Kong Protests. Asian Affairs 50:465–487 Rao G, Wang Z (2007) Hong Kong’s “One Country, Two Systems” Experience under the Basic Law: Two Perspectives from Chinese Legal Scholars. Journal of Contemporary China, 52:341–358 Sabine P (2018) Can China’s Greater Bay Area Initiative Really Work? South China Morning Post, 28 May 2018 Scott I (2010) The Public Sector in Hong Kong. Hong Kong University Press, Hong Kong Sheng L (2016) The Transformation of Island City Politics: The Case of Macau. Island Studies Journal 11:521–536 Sing M, Tang Y (2012) Mobilization and Conflicts over Hong Kong’s Democratic Reform. In: Lam W, Lui P L, Wong W (eds) Contemporary Hong Kong Government and Politics. Hong Kong University Press, Hong Kong, pp 137–158

132

E. C. Ip

Song W (2015) A Special Regional Actor in the World: Conceptualising Macao’s Diplomatic Behaviour. China: An International Journal 13:154–171 Tang J T H (1994) From Empire Defense to Imperial Retreat: Britain’s Postwar China Policy and the Decolonization of Hong Kong. Modern Asian Studies 28:317–337 The Economist (2019) Seeing Red: Asia’s Pre-eminent Financial Centre is on the Brink. The Economist, Hong Kong Tse J K H (2015) Under the Umbrella: Grounded Christian Theologies and Democratic Working Alliances in Hong Kong. Review Religion and Chinese Society 2:109–142 Tso K S (2012) Fundamental Political and Constitutional Norms: Hong Kong and Macau Compared. Australian Journal of Asian Law 13:1–24 Wang Z (2019) Relationship Between the Chinese Central Authorities and Regional Governments of Hong Kong and Macao: A Legal Perspective. Springer, Singapore Weng B S J (1997) Mainland China, Taiwan, and Hong Kong as International Actors. In: Postiglione G A, Tang J T-H (eds) Hong Kong’s Reunion with China. Hong Kong University Press, Hong Kong, pp 42–78 Wong Y (2007) Autonomy and Protection of Fundamental Rights in the Hong Kong SAR. LexisNexis, Hong Kong Wong H H A (2017) The Summer 2014 Protests in Macau: Their Contexts and Continuities. Asian Education and Development Studies 6:57–71 Wong L C (2009) The 1967 Riots: A Legitimacy Crisis? In: Bickers R, Yep R (eds) May Days in Hong Kong: Riot and Emergency in 1967. Hong Kong University Press, Hong Kong, pp 37–52 Wong M Y H (2015) Party Models in a Hybrid Regime: Hong Kong 2007–2012. China Review 15:67–94 Wong S H W (2014) Resource Disparity and Multi-Level Elections in Competitive Authoritarian Regimes: Regression Discontinuity Evidence from Hong Kong. Electoral Studies 300:200–219 Wong W, Xiao H (2018) Twenty years of Hong Kong and Macao under Chinese Rule: Being Absorbed under “One Country, Two Systems”. Public Money & Management. 38:411–418 Xi J (2017) The Governance of China II. Foreign Languages Press, Beijing Xi J (2018) Long Term Perseverance, Continued Improvement of the People’s Congresses System: Achievements and Experiences of Insisting and Improving the People’s Congresses System during 40 Years of Reform and Opening. Qiushi. November 2018 Yap P J (2017) Courts and Democracies in Asia. Cambridge University Press, New York Yeandle M, Wardle M (2019) The Global Financial Centres Index. Z/Yen and China Development Institute, London and Shenzhen Yee H S (2014) The Theory and Practice of “One-Country-Two-Systems” in Macao. In: Yu E W Y, Chan M K (eds) China’s Macao Transformed: Challenge and Development in the 21st Century. City University of Hong Kong Press, Hong Kong, pp 3–20 Young S N M (2009) Fundamental Rights and the Basic Laws of the Hong Kong and Macau Special Administrative Regions. In: Oliveira J, Cardinal P (eds) One Country, Two Systems, Three Legal Orders - Perspectives of Evolution: Essays on Macau’s Autonomy after the Resumption of Sovereignty by China. Springer, Berlin, pp 681–693 Young S N M (2015) Hong Kong: End of Occupy Central, Government’s Proposal for Universal Suffrage Reform. Public Law 2015:502–503 Young S N M, Cullen R (2010) Electing Hong Kong’s Chief Executive. Hong Kong University Press, Hong Kong Yu E W Y (2011) Executive-Legislative Relationships and the Development of Public Policy. In: Lam N M K, Scott I (eds) Gaming, Governance and Public Policy in Macao. Hong Kong University Press, Hong Kong, pp 57–74 Yuen S (2018) Contesting Middle-class Civility: Place-based Collective Identity in Hong Kong’s Occupy Mongkok. Social Movement Studies 17:393–407

6 Comparative Constitutional Politics in the Chinese Special Administrative…

133

Zhang B (2009) Political Paralysis of the Basic Law Regime and the Politics of Institutional Reform in Hong Kong. Asian Survey 49:312–332 Zhang Q, Xiao Z (2015) Constitutional Law, 3rd edn. Law Press China, Beijing Zhao D (2015) The Confucian-Legalist State: A New Theory of Chinese History. Oxford University Press, New York Zheng V, Wan P (2014) Gambling Dynamism: The Macao Miracle. Springer-Verlag, Heidelberg

Eric C. Ip (DPhil, University of Oxford) is an Associate Professor of Law at the University of Hong Kong. He is the author of Hybrid Constitutionalism: The Politics of Constitutional Review in the Chinese Special Administrative Regions (Cambridge University Press, 2019) and a coeditor of The Oxford Handbook of Comparative Administrative Law (Oxford University Press, forthcoming, 2021).

Chapter 7

A Tale of Three Cities—The Stadtstaat in German Constitutional Law Jörg Fedtke

Contents 7.1 Setting the Scene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Definition of a City Under German Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Cities and German Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.1 Cities as a Basis for Multipolar Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.2 Deutscher Städtetag . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3.3 Historical Roots of Power and Identity: The Hanse . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Cities under the German Basic Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.1 Autonomy in Local Affairs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.2 Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4.3 The Constitutional Complaint (Verfassungsbeschwerde) of Counties and Municipalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5 The Special Status of Berlin, Hamburg and Bremen as Stadtstaaten . . . . . . . . . . . . . . . . 7.5.1 Berlin, Hamburg and Bremen as Municipalities . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.2 Stadtstaaten . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.5.3 Contemporary Challenges and Opportunities for Stadtstaaten . . . . . . . . . . . . . . . 7.6 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

136 137 139 139 140 140 141 142 143 145 145 146 147 150 152 153

Abstract German cities, as distinct legal entities, share a rich history going back to Roman times. They are a very visible feature of the country’s multipolar brand of federalism, though formally part of the second tier of (state) government, and shape not only the daily lives of many citizens but also their legal interaction with public authorities in a wide range of policy areas. This chapter examines the status of cities under German constitutional law, focusing on the three city-states (Stadtstaaten) of Berlin, Hamburg and Bremen. These Stadtstaaten are not only municipalities but also Länder (states) and as such participate in the dynamics and safeguards of German federalism. For historical reasons, they enjoy considerable constitutional, legislative, administrative and judicial independence. At the same time, there is an ongoing debate, motivated by questions of economic viability, on a merger of these J. Fedtke (B) Faculty of Law, University of Passau, Passau, Germany e-mail: [email protected]; [email protected] Tulane Law School, Tulane University, New Orleans, United States © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_7

135

136

J. Fedtke

Stadtstaaten with other states. Berlin, Hamburg and Bremen are also struggling to preserve their national constitutional prerogatives in relation to the European Union. In another noteworthy development, citizens are increasingly invoking socioeconomic guarantees at state level, which offer more protection than the German Basic Law (Grundgesetz, BL). Keywords Berlin · Bremen · City-state (Stadtstaat) · Federalism · Hamburg · State (Land)

7.1 Setting the Scene An overwhelming percentage of Germans lives in urban areas;1 and although German cities do not rank among the most populous2 or commercially important in the world, their constitutional status under the German Basic Law (Grundgesetz, BL) of 1949 may be among the most significant in comparative terms. Many cities are considered autonomous municipalities and enjoy the right to organize and regulate the local affairs of their citizens (kommunale Selbstverwaltung). This right—guaranteed by Article 28 BL at the federal level and granted to cities under state legislation—has many important dimensions. These include elements of democracy (local elections and forms of direct democracy), legislative authority (the power to enact bylaws on matters of local concern), procedural safeguards (access to the German Federal Constitutional Court, GFCC3 ) and financial protections in the guise of constitutionally guaranteed sources of revenue. Despite this impressive constitutional status, cities (as part of municipal government) are not part of the German federal infrastructure, which rests only on two pillars—the central (federal) level and 16 Länder (states). Three cities, however, transcend this paradigm and bridge the gap between city/municipality and Land (state): Berlin, Hamburg and Bremen—for historical reasons—are not only cities with the rights and responsibilities of autonomous municipalities; they are also Länder that participate in the very different (and arguably much more powerful) dynamics and safeguards of German federalism. They have their own constitutions and constitutional courts; operate their share of the general court system, which in Germany is largely a matter for the states; exercise voting power in federal legislation via the influential German Bundesrat, a separate legislative body that represents the states at the federal level; share in the legislative and (considerable) administrative powers that the Basic Law confers on the Länder themselves; and even have a say in matters concerning the European

1 Based on the legal definition of a city (Stadt) in German law, 75% of all Germans live in cities; see

Statistisches Bundesamt (Federal Office of Statistics), Daten aus dem Gemeindeverzeichnis Städte in Deutschland nach Fläche, Bevölkerung und Bevölkerungsdichte (31 December 2017). 2 Berlin, Hamburg, Munich and Cologne are the only German cities with more than a million inhabitants. 3 Bundesverfassungsgericht.

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

137

Union (EU)4 and—via the Congress of Local and Regional Authorities—the Council of Europe. The Constitution of Berlin summarizes this extraordinary constitutional existence of the three German city-states (Stadtstaaten) in its very first provision: ‘Berlin is a German Land as well as a city.’5 This chapter focuses on Berlin, Hamburg and Bremen to highlight the full range of constitutional powers and responsibilities that many German cities enjoy while also emphasizing the special status of these particular three entities as participants in German—and, indeed, European—federalism.6 Different forms of cooperative governance in a multi-tiered system emerge in the course of this narrative—as do the special socio-economic challenges and political and cultural opportunities that large cities often encounter and generate. Occasional references to previous German regimes will help explain what the city is in contemporary German constitutional law.

7.2 The Definition of a City Under German Law German cities come in very different shapes and sizes. The Federal Office of Statistics lists a total of 2061 cities across the federal territory ranging from Berlin with a population of 3,613,495 inhabitants and a territory of over 891 km2 to Arnis in Schleswig-Holstein, close to the German-Danish border, where 280 citizens share a peninsular of less than 112 acres formed by the river Schlei.7 Trier goes back to Roman times, founded as Augusta Treverorum over 2000 years ago, while the youngest German city may currently be Jüchen, near Düsseldorf, a cluster of very old settlements that finally acquired city rights (Stadtrechte) under the law of North Rhine-Westphalia on 1 January 2019. The economic, social, cultural and political fabric of German cities is equally diverse. Most of them are quite distinct from the other forms of municipal government that exist under German constitutional and administrative law. Federal constitutional law cares little about these differences; cities are not a separate legal category under the Grundgesetz. Article 22(1) BL singles out Berlin as the political capital (Hauptstadt) of Germany8 but cities generally (including Berlin) participate in the constitutional status of counties (Gemeindeverbände) and municipalities (Gemeinden) under the broad federal framework of Article 28 BL. This provision guarantees basic principles of democracy, a measure of administrative autonomy, and the allocation of financial resources to state and local government. Article 28 BL also acknowledges the power of the 16 Länder to structure themselves 4 Article

23 BL. von Berlin (Constitution Berlin), VOBl. I S. 433 (1 September 1950). 6 Bremerhaven, the second city on the territory of the Land Bremen, is mentioned briefly but will be treated, for the sake of simplicity, as part of the City of Bremen. 7 See Note 1. 8 Taking over from Bonn through decision of the German Parliament (Bundestag) of 20 June 1991. 5 Verfassung

138

J. Fedtke

and the counties and municipalities (and, by extension, cities) that make up their respective territories. The provision thus provides the basis for the asymmetrical internal constitutional infrastructure of the states and their authority to shape—again within the limits of the broad federal guarantees and prescriptions of the Basic Law— the details of municipal government. The relationship between each Land and the federal level (Bund) is the same while Länder enjoy much freedom to structure themselves according to historical tradition and contemporary preference. It is thus left to each state to determine what cities are within its own territory. Berlin and Hamburg are Länder in their own right and see little need to distinguish this status from their identities as cities. State and municipal/city territories, rights and responsibilities conflate, although both cities do feature decentralized government units in the form of districts (Bezirke). Bremen is also a Land, albeit with two distinct territories and—for historical reasons going back to the occupation of Germany after 1945 and the need of the United States to supply its armed forces through a deepwater port—two cities (Bremen and Bremerhaven9 ). The Constitution of the Land Bremen considers each of these cities a municipality10 and their combined territory (which also makes up the territory of the Land Bremen) a county.11 The rights and responsibilities as well as rules concerning oversight by the state government and the funding of the county/municipalities/cities Bremen and Bremerhaven are set out in the document. Despite these differences at the state constitutional level, Bremen displays the same combination of municipal and state law as Berlin and Hamburg. Other Länder follow a similar approach with respect to municipalities and counties, ignoring cities as a category of state constitutional law, but provide definitions of the term Stadt in their respective administrative laws. These definitions, while different in detail, share three key elements. A city must have a minimum number of inhabitants (typically more than 10,000); must be of some local or regional significance; and must exhibit the economic, social, cultural and structural characteristics usually associated with settlements that are more substantial. The decision to confer this administrative law status on a particular entity lies with state governments. Alternatively, and regardless of these criteria, many cities that enjoy pre-constitutional rights continue to exist.12 Stadtrechte once granted by previous German regimes survive under state administrative law, albeit stripped of any historical privileges that go beyond the rights and responsibilities of contemporary municipalities under der Basic Law and state constitutional and administrative law. This explains the continued existence of very small cities such as Arnis. City rights, then, are—strictly speaking—today more a question of identity and visual effect than of legal significance. The critical public law categories for cities other than Berlin as Hauptstadt are their status as a Land (as in the case of Berlin, Hamburg and Bremen/Bremerhaven), county or municipality. 9 Bremerhaven

was called Wesermünde until 1946. 143(1) Landesverfassung der Freien Hansestadt Bremen. 11 Ibid., Article 143(2). 12 E.g. Para 59 Gemeindeordnung für Schleswig-Holstein or Article 3 Gemeindeordnung für den Freistaat Bayern. 10 Article

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

139

That said, different types of cities exist under state administrative laws. Categories vary greatly between states, with population size and historical significance being the key factors, as do the specific administrative responsibilities allocated to city administrations. Larger cities usually exercise the same powers as counties while smaller cities operate within the legal framework provided for municipalities.

7.3 Cities and German Federalism The fact that city rights are today little more than an alternative way of allocating administrative powers and responsibilities usually exercised by counties and municipalities to cities of varying sizes should not detract from the strong political, economic and cultural significance that Germans continue to attach to city life. While this chapter focuses on their contemporary position under German constitutional law, cities have historically made critical contributions to the development of all aspects of German society. Three phenomena serve to highlight this particular (and in part extra-legal) role of cities in Germany: German federalism and its roots in the fragmented and constantly shifting political landscape of central Europe; the Association of German Cities (Deutscher Städtetag), an organization that seeks to support all types of cities in Germany and promote their particular interests at the national and European levels; and the role of German cities as members of the Hanse, a medieval trading alliance of cities across northern and eastern Europe.

7.3.1 Cities as a Basis for Multipolar Federalism The area that Germany today occupies in central Europe has for centuries been a politically fragmented space; as a unified nation state, Germany has only existed for comparably brief periods. A large number of states, ranging from larger entities such as Prussia and Bavaria to very small ones such as the Duchy of Sachsen-Altenburg or the Principality of Lippe, enjoyed long stretches of constitutional independence. The Holy Roman Empire,13 the short-lived German Empire of 1848/1849, and the Reich of 1871 are signposts of an ever-shifting political landscape that continued to change with the defeat of the Third Reich in 1945, the creation of two German states in 1949, and the renewed unification of Germany in 1990. While relevant from the perspective of European—and, indeed, world—history, it is the significant impact this fragmentation had on German cities that is of interest here: Germany did not experience the same focus on one single centre of power as did other European nations and is still a country of multiple political, economic and cultural crossroads that enjoy distinct histories often going back to Roman times. German states have come and gone; cities have stayed. This development is not only a key to the understanding 13 Sacrum

Imperium Romanum.

140

J. Fedtke

of Germany as a federal system but has also had a powerful and lasting impact on the geographical distribution of many important public and private entities. Berlin is the nation’s political capital but Hamburg hosts the International Tribunal for the Law of the Sea (ITLOS); Bonn the Secretariat of the United Nations Framework Convention on Climate Change (UNFCCC), Frankfurt the European Central Bank (ECB); Karlsruhe the Bundesverfassungsgericht; Heidelberg the oldest university on German soil; and Herzogenaurach, Stuttgart, Munich and Wolfsburg the headquarters of Adidas, Mercedes Benz, BMW and Volkswagen respectively. More examples could be given. German cities thus display and build on the historically decentralized societal fabric of the country.

7.3.2 Deutscher Städtetag The significance of German cities is also underscored by the Deutscher Städtetag, an association of German cities that today represents the interests of a large number of cities and municipalities at the national and European levels. Environmental concerns, culture, education, public utilities and transportation, housing or the care for political refugees are topics falling within the remit of the organization. The Städtetag traces its own institutional roots to the beginning of the nineteenth century but builds on a long tradition of city involvement and representation at the national level going as far back as the Reichsstädtekollegium or Städterat of the late fifteenth century. This early forerunner of organized city cooperation in contemporary Germany brought together cities that stood under direct Imperial rule14 until their incorporation, with a few exceptions, into the German states in 1803 and gave entities like Cologne, Regensburg or Lübeck some political influence aside the ecclesiastical and worldly rulers in the Reichstag of the Holy Roman Empire. Cities have thus been able to project not only economic and cultural but also distinct constitutional influence throughout long periods of German history. This tradition continues today in the guise of the Städtetag and the three Stadtstaaten Berlin, Hamburg and Bremen.

7.3.3 Historical Roots of Power and Identity: The Hanse A third strand worth mentioning here are the medieval commercial ties that closely aligned many German cities across a swathe of territories along the North and Baltic Seas and southward as far as Cologne and Göttingen in the guise of the Hanseatic League (Deutsche Hanse). Hanseatic cities also existed in many neighbouring countries such as the Netherlands, Denmark, Sweden and Russia. The Hanseatic League, while predominantly a trading alliance of mostly free cities, sought to further the 14 Free

Imperial Cities (Reichsstädte).

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

141

interests of its members in a number of related areas such as security, foreign affairs, diplomatic privileges, navigation rights and maritime infrastructure. A number of cities gained the legal status of Free Imperial Cities because of their association with the League. Today, 26 German cities retain a reference to this era in their official names, among them the Free and Hanseatic City of Hamburg, the Free Hanseatic City of Bremen and the Hanseatic City of Lübeck.15 The continued symbolic importance of this association with an alliance of cities that was formed in the thirteenth century and gradually lost its influence in the late seventeenth century is highlighted by the fact that most contemporary German Hansestädte reclaimed their titles only after reunification in 1990. This development was not limited to cities in the former German Democratic Republic. The emerging account suggests that German cities share a very long tradition of political, economic and even military influence, and that many have been able to secure significant levels of individual and/or jointly shared autonomy from the various nation states that have existed on German soil since Roman times. This influence continues to shape German federalism and contemporary society in manifold ways. The corridor of what qualifies as a German city today is extremely wide and determined mainly by state administrative law. Contemporary constitutional law does not recognize the city as a distinct legal category but many German cities participate in the legal status of counties and municipalities and—by virtue of this status—in a special constitutional regime. Three cities, finally, transcend this legal matrix due to their additional status as Länder under the Basic Law. This narrative needs further elaboration with respect to the key rights and responsibilities of the municipal tier of government of which cities are—by extension—a part. The powers, duties and financial or legal safeguards attributed to counties and municipalities (and, hence, cities) under German federal constitutional law will thus be the focus of the following section.

7.4 Cities under the German Basic Law Many German cities qualify as counties (Gemeindeverbände) or municipalities (Gemeinden). Key provisions of the Basic Law regulate this local tier of government, which is not autonomous but forms a subset of the state/Länder sphere of German federalism. The principles that establish and safeguard the status of counties and municipalities are found in Article 28 BL, which promises to them a degree of autonomy in local affairs (kommunale Selbstverwaltungsgarantie), local democracy through elections, and the survival not as single counties or municipalities (this is a question of regulation by the relevant Land) but the continued constitutional existence of a municipal sphere as such with a bouquet of relevant (and again local) powers and responsibilities. The provision also gives counties and municipalities access to financial resources, the details of which are further fleshed out in the 15 Origin

and principal city of the League.

142

J. Fedtke

Finanzverfassung—a distinct chapter of the Basic Law that sets out the distribution and administration of tax revenue between the federal level, the states, and municipal government.16 The Basic Law safeguards these rights through a special type of action, the municipal constitutional complaint (Kommunalverfassungsbeschwerde), that counties and municipalities can bring in the Bundesverfassungsgericht.17

7.4.1 Autonomy in Local Affairs Counties and municipalities must be able to exercise some measure of control over their own local affairs. The exact limits of their powers are controversial18 and have frequently attracted constitutional scrutiny19 but include, in practice, municipal roads and local transportation, the regulation of local traffic, solid waste management and recycling, utilities (water, gas and electricity), local telecommunication networks, municipal savings banks, zoning and the enforcement of building regulations, parks and recreational areas, playgrounds and sports centres, municipal libraries or schools and child daycare facilities. Municipalities also issue identity cards and passports, maintain the local register of permanent residents (Melderegister), and organize elections not only for their own institutions but also for the state and federal levels. Some of these activities, such as health care administration, are compulsory under state administrative law (Pflichtaufgaben); many others, such as running ice rinks, swimming pools or parking lots, are left to their discretion (freiwillige Aufgaben). The level of state oversight varies depending on the type of activity—as does the degree of cooperation between neighbouring municipalities, which can be particularly intense in complex and expensive areas such as solid waste management and recycling or public transport. The Basic Law does not list any of these administrative matters or allocate them to municipal government. The Länder are responsible for all areas of public administration unless items are specifically allocated to the federal level20 (regardless of the nature of the relevant law, which is mostly federal21 ) and devolve most of this responsibility downwards to counties and municipalities. Cities engage in all of these activities under the same constitutional and administrative law conditions as counties and municipalities. Local democracy, both through elected county and municipal bodies and via forms of direct democracy, is the second important guarantee contained in Article 28 BL. Citizens must have an opportunity to engage in the areas of local concern outlined

16 Article

104a to 115 BL. Article 93(1) No. 4a. 18 See, e.g., Engels 2014, pp. 455 et seq.; Kronisch 1993, pp. 71 et seq.; Schmidt-Aßmann/Röhl in Schmidt-Aßmann 2005, pp. 15 et seq. 19 See Maurer 2017, § 23 Para 6 for a survey of GFCC cases on municipal powers. 20 Article 83 BL. 21 Ibid., Articles 70–74. 17 Ibid.,

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

143

in the previous section and shape their communities according to political preference. The general principles of German election law apply—albeit with significant modifications that expand the corridor of democratic participation at the local level of government. Lower thresholds under proportional representation tend to increase the number of political parties that are able to win seats in county or municipal councils;22 EU citizens are eligible to vote and stand for election;23 and—in contrast to the federal level—citizens can be asked to decide questions of local governance through referendum (Volksbefragung) or initiate decisions through popular demand (Volksbegehren). The only direct involvement of citizens in decisions at the federal level are referenda to confirm the restructuring of state territories by federal law.24 This mix of representative forms of democracy (at the federal level) and direct democracy (at the state and, more importantly, municipal levels) was a deliberate choice during the drafting of the Basic Law and reflects lessons learnt from the manipulative power of Nazi propaganda during the Third Reich.

7.4.2 Revenue Federal and state grants, fees for services provided, and constitutionally guaranteed sources of taxation each make up about a third of the revenue raised by counties and municipalities. The Basic Law25 and state constitutions26 also require that new tasks delegated to the local tier of government be accompanied by the necessary sources of funding. Federal grants can be made to the Länder and municipal governments in order to avert disturbances of the national economic equilibrium, to equalize economic disparities across the federal territory, or to promote economic growth. Natural disasters and exceptional emergencies at state level as well as exceptional financial burdens arising from federal facilities and infrastructure are further grounds for federal funding.27 Municipal fees are charged for a large number of services ranging from municipal libraries to parking lots. Both sources of revenue serve very specific purposes. Taxes, on the other hand, offer flexibility in terms of spending targets and are therefore particularly important for municipal autonomy. Counties and municipalities, and cities with equivalent status, receive the revenue from property tax, taxes on trades, local consumption and expenditures,28 as well as shares of income tax29 and (since 1998) turnover tax.30 They also participate in taxes allocated 22 Many

political parties only hold seats in municipal councils (Rathausparteien). 20 (2) (b) Treaty on the Functioning of the European Union. 24 Article 29 BL. 25 Ibid., Article 104b. 26 E.g., Article 83 (3) Constitution of Bavaria; Article 57 (4) Constitution of Lower Saxony. 27 Article 104b and 106(8) BL. 28 Ibid., Article 106(6). 29 Ibid., Article 106(5). 30 Ibid., Article 106(5a). 23 Article

144

J. Fedtke

jointly to the federal and state levels.31 The needs of local government, finally, affect the complex redistribution of revenue between richer and poorer Länder—a constitutionally entrenched equalization mechanism (Länderfinanzausgleich)32 that is as German as it is politically controversial.33 The details of this complex distribution of revenue within a federal system need no further elaboration here; suffice it to note that German constitutional law protects municipal government—including cities—through entrenched provisions that provide tax income and create a number of avenues for direct federal funding of counties and municipalities. These financial safeguards are not unique but still quite striking in comparative terms. Local government in many systems, even if granted distinct powers and responsibilities, often suffers from anaemic funding. Constitutional protection of revenue, though in part dependent on the continued support of the Länder by way of their own internal systems of financial redistribution between a Land and its municipalities, are thus an important ingredient of local—and therefore city—governance in Germany; adequate resources are considered an indispensable component of municipal autonomy.34 This protection may be a reason for the relatively low municipal share of German sovereign debt (7% in 2018)35 and—for the first time since 2012—an overall budgetary surplus of the municipal tier of government in 2017 and 2018 due to increased local tax revenue generated by a booming national economy.36 It is important to note, however, that this debt and potential sources of additional revenue are unevenly distributed; cities and municipalities in some regions (especially in North Rhine-Westphalia, the Saarland and Rhineland-Pfalz) face much higher levels—accumulated over decades and exacerbated by structural changes of scale such as reforms of the German energy market (away from labour-intensive coal to renewable sources like solar energy and wind power)—than in other parts of the country.37 Other developments complicate matters. Some Länder, such as Hesse, have in past years absorbed considerable amounts of municipal debt while federal legislative initiatives aim at supporting financially weak municipalities38 and reforming parts of the tax system that strongly affect local revenue (property tax). State and municipal resources in the city-states of Berlin, Hamburg and Bremen are difficult to disentangle anyway. The cumulative effect of these economic, political and legal factors is a very diverse fiscal landscape at the municipal level. The Sars-CoV-2 crisis that has spread across the globe and triggered substantial public spending in Germany highlights these differences. Municipalities with high levels of pre-pandemic debt are calling for a national approach to the reform of local funding 31 Ibid., Article 106(7); BVerfGE (Entscheidungen des Bundesverfassungsgerichts/Decisions of the

German Federal Constitutional Court) 86, 148. 107 BL. 33 On the Finanzverfassung, see Currie 1994, pp. 52–60. 34 BVerfGE 71, 25. 35 Statistisches Bundesamt, Pressemitteilung Nr. 376 (25 September 2019). 36 Bundesministerium der Finanzen 2019; Bertelsmann-Stiftung 2019, p. 4. 37 Deutscher Städtetag 2019, pp. 27–29. 38 Gesetz zur Förderung finanzschwacher Kommunen, BGBl. I 974, 975 (24 June 2015). 32 Article

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

145

which addresses all current liabilities while regions with low levels of municipal debt demand that financial relief measures be limited to additional burdens following directly from the fight against Sars-CoV-2.

7.4.3 The Constitutional Complaint (Verfassungsbeschwerde) of Counties and Municipalities Municipal government depends in a large part on the political support of the Länder. This is a consequence of German federalism, which is based only on the federal and state pillars, and makes counties and municipalities—and cities enjoying county and/or municipal status—a component of and subject to the influence of the latter. Disputes over municipal interests will therefore more often than not play out within each of the sixteen states and—to a far lesser extent—at the federal level through collective political action organized by entities like the Deutscher Städtetag. This paradigm is, however, subject to a number of significant exceptions. Municipal government as such must exist and enjoy some measure of administrative autonomy. This includes constitutionally protected sources of revenue. Counties and municipalities have direct access to the Bundesverfassungsgericht in order to defend these fundamental constitutional safeguards against federal or state overreach.39 The municipal constitutional complaint (kommunale Verfassungsbeschwerde) is not the most frequent type of action in the Bundesverfassungsgericht but is used regularly to police the boundaries of Article 28 (2) BL. Cases decided by the Bundesverfassungsgericht include disputes over municipal zoning,40 the municipal share in the distribution of income tax41 or the financial burdens of child daycare.42 Similar procedural safeguards exist at state level. Applications are often brought by cities.43

7.5 The Special Status of Berlin, Hamburg and Bremen as Stadtstaaten Three German cities enjoy an exceptional status under the Basic Law. Berlin, the most famous of the three, experienced extraordinary constitutional change following the end of the Third Reich.44 Joint allied control, partition and the Berlin Wall, reunification of Germany in 1990, and the creation of the only German Land that combines territory, citizens and public institutions of both the former West Germany 39 Article

93 (1) (4b) BL. BvR 584, 598 and 599/76, judgement of 7 October 1980. 41 2 BvR 1808, 1809 and 1810/82, judgement of 15 October 1985. 42 2 BvR 2177/16, judgement of 21 November 2017. 43 On the kommunale Verfassungsbeschwerde, see Schlaich and Korioth 2018. 44 For a detailed account of Berlin’s constitutional development before 1945, see Benecke 1931. 40 2

146

J. Fedtke

and the German Democratic Republic make Berlin a unique city even by German standards. It is today, as the political capital of the country, the only city (Stadt) mentioned in the Basic Law, though it acquired this special status only via the detour of Prussian perseverance over its German and European rivals—and after taking over from Bonn following a contentious debate about the future location of the federal capital of a unified Germany. Many units of federal ministries are still located in Bonn 30 years after reunification. Hamburg, with a history going back to 500 AD, is the oldest of the three. It is a city of traders that still generates much of its wealth through the Port of Hamburg and the only one of the three Stadtstaaten, together with Bavaria, Baden-Württemberg and Hesse, to contribute regularly to the system of financial equalization between the sixteen German states. A leading player in the medieval Deutsche Hanse, it has a long history of constitutional autonomy and for centuries projected political, economic and military influence far beyond its city limits. Bremen, finally, was in 1947 the first of the three cities to receive a new constitutional identity following the collapse of Nazi Germany only two years earlier.45 The Land Bremen is the only German state with a fragmented territory and home to two cities: Bremen, itself, and the city of Bremerhaven, which hosts the second largest German port. Bremerhaven received a separate Stadtverfassung (city constitution) in 201546 but remains firmly connected to the Land Bremen. Despite these marked historical and contemporary differences, Berlin, Hamburg and Bremen have much in common. Representatives from all three cities, as existing states or distinct territories, participated in drafting the Basic Law in 1948 and the founding of the Federal Republic of Germany less than a year later. As Stadtstaaten, they combine the powers, responsibilities and financial safeguards of a German Land with those of the municipal tier. All three cities have their own territories, constitutions, state governments and—as a matter of practical constitutional law— voting and tax paying citizens.

7.5.1 Berlin, Hamburg and Bremen as Municipalities Berlin, Hamburg and Bremen are—as cities—part of the municipal framework outlined above. The Constitution of Berlin confirms the dual Land and city status of Berlin;47 Hamburg, by its name and constitution, is a Land 48 and a free and

45 Landesverfassung der Freien Hansestadt Bremen (Constitution Bremen), Brem. GBl. S. 251, judgement of 21 October 1947. 46 Verfassung für die Stadt Bremerhaven, Brem. GBl. S. 670, judgement of 3 December 2015. 47 Article 1 Constitution Berlin. 48 Article 1 Verfassung der Freien und Hansestadt Hamburg (Constitution Hamburg), HmbBL I 100-a (6 June 1952).

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

147

hanseatic city with municipal authority;49 and Bremen is a Land 50 with two cities/municipalities that together form a county.51 As Länder, Berlin, Hamburg and Bremen have the power to organize their respective municipal tiers of government. This explains why Berlin and Hamburg have city districts (Stadtbezirke) that serve as administrative subdivisions of the Land/city governments while Bremen, in addition to the Land government, has a county and two city administrations. A key similarity that highlights the dual character of the three entities as Länder and municipalities is the name of their chief executive officials; the three cities are the only German states that are governed by ruling mayors (regierende Bürgermeister) who combine the offices of a municipal mayor and state prime minister (the equivalent of a state governor in the United States).

7.5.2 Stadtstaaten As states, Berlin, Hamburg and Bremen belong to the sixteen Länder that together form the state tier of German federalism. Their flags, constitutions and federally guaranteed sovereign territories (Hoheitsgebiete) underscore their identities as Länder. All three states maintain permanent missions (Landesvertretungen)—with representatives, offices and staff akin to embassies—at the seat of the Federal Government in Berlin.52 The Preamble of the Basic Law lists Berlin, Hamburg and Bremen as three of the sixteen constituent Länder of the Federation and the coats of arms of the three cities adorn the chamber of the Bundesrat together with those of the other thirteen states. Each regierender Bürgermeister participates in an annual rotation to become Speaker of the Bundesrat (Bundesratspräsident) and, as such, exercises the powers of the Federal President should the incumbent be unable to perform the duties associated with this highest office of the Federation.53 State sovereignty becomes visible in daily life as well. Motorists understand that they cross into their territories courtesy of the official signposts that are set up along their city/state lines. State police forces exercise sovereign authority within the territory of each city; and federal police officers or officials from other state police forces require a specific statutory or administrative authorization to cross their city limits on official business. State courts and tribunals in Berlin, Hamburg and Bremen adjudicate administrative proceedings, criminal cases and private law disputes within their territories. These very diverse examples of Land authority display the considerable constitutional, legislative, administrative and judicial independence of the three German Stadtstaaten. The reasons for this independence lie in the structures of German federalism, in which these three cities participate on equal footing with the other thirteen Länder. To describe their powers 49 Article

4 (1) Constitution Hamburg. 64 Constitution Bremen. 51 Ibid., Article 143. 52 First in Bonn and since 2000 in Berlin. 53 Article 57 BL. 50 Article

148

J. Fedtke

would thus require a detailed account of German federalism, which is clearly beyond the scope of this chapter. The main powers and responsibilities that the Basic Law allocates to the states must nevertheless be at least sketched in order to convey a fuller picture of Berlin, Hamburg and Bremen as exceptional constitutional and political entities and, indeed, unique cities. The basic rule of German federalism is simple: German Länder exercise all legislative, executive and judicial powers of a nation state unless the Basic Law determines otherwise.54 The details are more complicated. The bulk of legislative authority is in fact exercised at the central level. The most significant legislative powers that remain for the states are policing and laws regulating cultural matters such as education (including high school diplomas and university degrees) or the media (newspapers, radio broadcasts and television). Other legislative powers of the Länder include municipal law, assembly law and the regulation of restaurants and bars or religious communities. The Land governments, however, are involved in the passing of all federal legislation as they exercise the voting power of the states in the Bundesrat. German federalism, in violation of the American separation of powers ideal, relies on executive (state government) legislators to help pass federal law.55 Every federal bill must pass through the Bundesrat and many even require the consent of the Länder without an override mechanism wherever their core powers or responsibilities are affected. The same is true for amendments of the Basic Law, which can only pass by 2 /3 -majorities in both the Bundesrat and the federal House of Representatives (the Bundestag).56 Out of 69 in total, Berlin currently exercises four, and Hamburg and Bremen each three votes in the Bundesrat.57 These shares can change depending on population size but will never fall below a minimum of three. The three cities, as members of the Bundesrat, can initiate federal legislation and participate in the complex interaction between the European Union and the national legislatures of the Member States.58 The Bundesrat also elects eight of the sixteen judges on Bundesverfassungsgericht, again with a 2 /3 majority. The weight of the three cities in these decisions is disproportionately high when compared to their share of about 7.4% of the German population. Berlin (12), Hamburg (6) and Bremen (2) together make up less than 7% of the 299 constituencies for elections to the Bundestag but account for more than 14% of the votes in the Bundesrat. Given that votes of a state can only be cast en bloc, and in light of the often similar interests of large cities in many policy areas, this influence is not insignificant. The three cities also play a role in the election of the Federal President by sending delegates to the Federal Convention (Bundesversammlung), a body that comes together every five years only for this single purpose.59 54 Ibid.,

Article 30. same is true for the EU, where representatives of the Member State governments participate in legislation. 56 Article 79 BL. 57 Ibid., Article 51(2). 58 Ibid., Article 23. 59 Ibid., Article 54(3). 55 The

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

149

If the Länder exercise limited own (but quite significant federal) legislative authority under the Basic Law, their influence on German public administration is the opposite—most public authorities in Germany are state or municipal; only in distinct pockets such as national defence, border control or the foreign service does the federal level administer federal law through its own administrative apparatus. Federal oversight is subject to considerable limitations even in areas where federal legislation prevails.60 German federalism, unlike its American counterpart, thus considers state administration of federal law not as an imposition but as a significant lever of state influence on federal policy output. The three Stadtstaaten participate in this administrative form of federalism (Verwaltungsföderalismus)61 to the same extent as the other thirteen states and cooperate frequently, both in the Bundesrat and in many other formalized settings, in order to discuss and harmonize approaches in a wide range of policy areas. The same is true, finally, for the judicial branch of government. Federal courts exist only at the apex of the specialized German court system; the Länder operate all other courts from the trial court level to the higher courts of appeal (Oberlandesgerichte) and across all branches of the law. This includes the appointment of state court judges and all other court personnel. Judicial and financial safeguards protect the significant powers exercised by the Länder under the Basic Law. The Bundesrat as well as individual state governments can challenge federal overreach with the help of specific actions in the Bundesverfassungsgericht.62 The Länder are entitled to constitutionally protected shares of tax revenue in order to finance their activities and may receive additional federal grants in order to avert disturbances of the national economic equilibrium, to equalize economic disparities across the federal territory, to promote economic growth, or to support systems of local mass transportation. The main sources of state revenue are taxes on property, inheritance, beer and gambling as well as shares of income tax, motor vehicle tax, corporation taxes and turnover taxes.63 A complex system of financial equalization (Finanzausgleich) aims to address disparities in the revenue generated by each of the sixteen states by keeping state budgets within a fairly narrow common corridor. Richer states support poorer states on the basis of complex criteria that include population size, economic output, geography (for example the cost of protecting coastal areas or mountainous regions from flooding or erosion) and special burdens such as the additional security needs of a political capital like Berlin. Hamburg tends to be on the contributing, Berlin and Bremen on the receiving side of this system.64 The picture of the German Stadtstaaten that emerges at this point of the narrative is that of three comparatively small but disproportionately influential cities that enjoy, for historical reasons, a significant degree of constitutional, political, economic 60 Ibid.,

Article 84. and Würtenberger 2018, p. 499. 62 Article 93 BL. 63 Ibid., Article 106; Zippelius and Würtenberger 2018, pp. 571–572. 64 Zippelius and Würtenberger 2018, pp. 572–575. 61 Zippelius

150

J. Fedtke

and cultural autonomy. Berlin, Hamburg and Bremen exercise the same legislative, administrative and judicial powers as the other thirteen German states and play a significant role at the federal level through their voting power in the Bundesrat. They are, at the same time, municipalities within the meaning of Article 28 BL and thus responsible for typically local affairs such as zoning and the enforcement of building regulations, the running of public transportation systems, solid waste management or the construction and staffing of elementary schools. A regierender Bürgermeister who happened to preside in the Bundesrat at a time when the Federal President dies or is otherwise unable to perform the official duties connected to the office might thus have to represent the country on occasion of a state visit of a foreign dignitary and think about the funding for public daycare facilities or the organization of local traffic in Berlin, Hamburg or Bremen on the same day. That is an unusual mix of responsibilities unlikely to arise in many other systems.

7.5.3 Contemporary Challenges and Opportunities for Stadtstaaten Three selected topics serve to add additional contours to this account of the German Stadtstaaten and to identify some of the opportunities and challenges that Berlin, Hamburg and Bremen face in the decades to come. There is, first, the question of their economic viability. As indicated above, Hamburg is the only one of the three cities to make a regular (albeit very modest) contribution to the complex system of financial equalization that characterizes the fiscal side of German federalism. Berlin and Bremen are firmly stuck on the receiving end of the spectrum. This has led to an ongoing debate not only about the wisdom of equalizing financial resources in a federal system for the sake of solidarity or, as the Basic Law puts it, the establishment of equal living conditions throughout the federal territory;65 the difficult economic situation of many states—including the three cities—has generated sustained support for the idea of merging Hamburg and Bremen with Schleswig-Holstein and Lower Saxony in the north-western and Berlin with Brandenburg in the north-eastern parts of the country. This debate is remarkable in comparative terms given that competition between political visions, economic strategies, or social models is a key justification of federalism—as, for example, in the United States. The Basic Law offers an alternative paradigm with respect to the financial resources made available to citizens in the sixteen Länder—that of solidarity, national (instead of predominantly state) citizenship, and the notion that an even distribution of resources such as job opportunities, health care or education across a national territory is preferable to potentially bruising regional competition with lopsided results within a single nation. There is considerable pressure from some states (for example Bavaria, Baden-Württemberg and North Rhine-Westphalia) to move to a more competitive framework but the future of German federalism is not at 65 Article

72 (2) BL.

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

151

all clear on this point. More interesting, however, is the fact that a serious discussion about a merger of states (with the inevitable loss of some sovereignty and identity) can take place at all and even lead to political action. A proposed fusion of Berlin and Brandenburg failed in the mid-1990s when a majority of voters in Berlin (53.4%) supported the project while a majority in Brandenburg (62.7%) rejected the plan in a rare (double) referendum with federal implications. This failed attempt to reform the territory took many observers by surprise but did not end the debate about the future design of German federalism. It is unlikely that other federal systems would engage so seriously with the viability, economic or otherwise, of their constituent states. A different dimension of this discussion is fuelled by the manifold tensions that often arise between metropolitan areas and their more rural neighbours. Who should maintain roads and public transportation systems for the many commuters that cross state lines every day? Where should they pay their income tax? Should their children be allowed to choose on which side of the line to attend school or university? And what about a level playing field in terms of taxation or the regulation of service providers on either side of largely invisible regulatory borders? The German system of financial equalization addresses some of these questions but has not been able to produce a sustainable and generally accepted calculus for an equitable evaluation of the many factors that are in play here. The formula is revisited regularly and has led to a number of challenges in the Bundesverfassungsgericht. Berlin, Hamburg and Bremen, as attractive cities with sprawling suburbs that belong to neighbouring states, sit at the epicentre of these debates and may not necessarily survive the next decades as the Stadtstaaten they are today. A second development that has affected the three cities is the birth and growth of the European Union. The EU has created opportunities for larger and smaller regions to engage more intensely with other parts of the continent and to participate in the EU’s own quasi-federal institutional infrastructure. The German Stadtstaaten benefit from this federalization of Europe both in economic and political terms. The EU has in many ways recreated a modern and much larger version of the Deutsche Hanse in which cities like Hamburg or Bremen operated so effectively for centuries. Institutional platforms like the Committee of the Regions offer new avenues of political influence for the comparatively wealthy and constitutionally independent Länder. These advantages come at a price, however, because all sixteen German states now form a third tier of government below Brussels and their own Federal Government in Berlin, and find themselves in an ongoing struggle to maintain their national constitutional prerogatives in an environment that still places so much emphasis on the interaction between the EU and its 27 Member States. This pressure is amplified by the fact that the EU lifted many of its own institutional structures from the German model of federalism and delegates most of its administrative activities to its Member States. In Germany, these are in turn often passed on to the Länder, which are not always sufficiently equipped to deal with the considerable volume of EU regulation in addition to the mix of municipal, state and federal responsibilities they already have under the Basic Law. A final observation concerns the role that the German Länder play in the area of human rights protection. Bills of rights in the constitutions of Berlin and Bremen

152

J. Fedtke

provide an additional and as yet not fully exploited layer of protection against legislative and—more importantly—executive violations of human rights within their respective territories. While most Germans have traditionally relied on the safeguards of the Basic Law and the jurisprudence of the Bundesverfassungsgericht to protect their rights and freedoms, state constitutional law (enforced, if necessary, by state constitutional courts) has become a more significant avenue in recent years. This development is less a reaction to the substantial workload of the Bundesverfassungsgericht. The Länder may not limit the human rights protection offered by the Basic Law but are free to pursue more generous approaches within their own spheres of government. Berlin and Bremen have made use of this power and provide a number of additional rights especially in the socio-economic sphere of human existence. The right to work66 and access to housing,67 social security benefits68 and education69 feature prominently, as do protections against dangerous technological developments,70 the regulation of individual property rights for the benefit of the general public interest71 and the rights of workers.72 These are controversial but increasingly topical dimensions of human rights protection that supplement the federal regime and are likely to attract more attention as disparities of wealth and market pressures on working conditions increase. Berlin has just introduced strict rules on rent control that are unique within Germany and likely to trigger litigation. The specific living conditions in the city and its particular constitutional choices will be at the heart of these disputes.73

7.6 Conclusion German cities have a very long and unique history. They are today home to most Germans and reflect much of the country’s federal paradigm. The Länder define what cities are and exercise significant influence over their activities. Cities are part of the municipal sphere of government, however, and benefit from a range of specific constitutional safeguards that do not have parallels in other western constitutions. As Stadtstaaten, Berlin, Hamburg and Bremen straddle the state-municipal divide and exercise, as Länder, considerable legislative, executive and judicial authority within their state territories. Their influence radiates into the federal level through their 66 Article

18 Constitution Berlin; Article 8 Constitution Bremen. 28 Constitution Berlin; Article 14 Constitution Bremen. 68 Article 22 Constitution Berlin; Articles 57 and 58 Constitution Bremen. 69 Articles 26 to 36a Constitution Bremen. 70 Ibid., Article 12 Constitution Bremen. 71 Ibid., Articles 28, 38 and 45. 72 Ibid., Articles 48–56. 73 The case is currently pending before the Bundesverfassungsgericht (Mietendeckel) with a decision expected by June 2021. For more information on the protection of human rights in the constitutions of the Länder, see Fedtke 2005. 67 Article

7 A Tale of Three Cities—The Stadtstaat in German Constitutional Law

153

voting rights in the Bundesrat. Article 30 BL highlights this status by identifying the Länder as the residual locus of all German state authority. These three states are, at the same time, municipalities with the traditional range of local responsibilities typically found at the municipal tier of government across the globe. As cities worldwide turn into habitats for large segments of the human race and may even play a decisive role for the ecological future of the planet, German constitutionalism generally and the phenomenon of the Stadtstaat in particular may offer valuable lessons for other systems with significant urban populations. More than two millennia of experience with the political, legal, economic, cultural and social fabric of cities and their role in a system of contemporary western constitutionalism qualify Germany as a target for more detailed comparative research than this contribution was able to provide.

References Benecke O (1931) Die Berliner Verfassung. ZaöRV 2:455-470 Bertelsmann-Stiftung (2019) Kommunaler Finanzreport Bundesministerium der Finanzen (2019) Die Finanzsituation der Kommunen Currie D (1994) The Constitution of the Federal Republic of Germany. University of Chicago Press, Chicago Deutscher Städtetag (2019) Stadtfinanzen Engels A (2014) Die Verfassungsgarantie kommunaler Selbstverwaltung. Mohr-Siebeck, Tübingen Fedtke J (2005) Human Rights in a Federal System. In: Markesinis B, Fedtke J (eds) Patterns of Regionalism and Federalism. Hart Publishing, Oxford Kronisch J (1993) Aufgabenverlagerung und gemeindliche Aufgabengarantie. Nomos, BadenBaden Maurer H (2017) Allgemeines Verwaltungsrecht. C.H. Beck, Munich Schlaich K, Korioth S (2018) Das Bundesverfassungsgericht. C.H. Beck, Munich Schmidt-Aßmann E (2005) Besonderes Verwaltungsrecht. De Gruyter, Berlin Zippelius R, Würtenberger T (2018) Deutsches Staatsrecht. C.H. Beck, Munich

Jörg Fedtke holds the Chair of Common Law at the University of Passau, Germany, and is A. N. Yiannopoulos Professor in Comparative and International Law at Tulane Law School, USA. He previously held academic positions at the University of Hamburg, University College London and The University of Texas at Austin. His main research interests include constitutional law, sustainability, torts and comparative methodology. He was an international expert for questions of federalism, human rights protection and judicial review in many reform processes across the Arab world.

Part II

Cities and Citizens

Chapter 8

The Constitution and the City: Reflections on Judicial Experimentalism Through an Urban Lens Natalia Angel-Cabo Contents 8.1 8.2 8.3 8.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Judicial Experimentalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The City as a Legal Space . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . An Extended Dialogue Between Disciplines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.1 City Matters and Differences Among Cities Matters Too . . . . . . . . . . . . . . . . . . . 8.4.2 Time (Temporality) Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.3 Politics Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.4.4 Inquiries from the Global South Matter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5 A Tentative Proposal to Begin the Conversation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.1 Choosing the Case(s) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.2 The Reading of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.3 Situating the Study in the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.4 The Sphere of Participation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.5.5 The Expected Effects . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.6 The Case of Cali’s Recyclers: An Example of Why It Is Worth Changing the Focus . . . . . 8.6.1 Snapshot 1: The Invisibility of the City and the Timing of the Court Orders . . . . . 8.6.2 Snapshot 2: Global Cities, Political Regimes and Competing Discourses . . . . . . 8.6.3 Snapshot 3: The Invisibility of the City and Its Institutional Weaknesses . . . . . . 8.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

158 159 163 166 166 168 168 170 172 173 173 173 174 174 177 178 179 180 181 182

Abstract This chapter invites scholars to pay attention to the role that cities play in the enforcement of social economic rights (SERs), focusing on a type of decisions that some authors have called judicial experimentalism. Experimental justice refers to a judicial approach through which the courts, rather than rendering a final resolution on a case, pursue solutions through the promotion of dialogue and negotiation between governments and affected populations. Gathering insights from socio-legal studies, legal geography and critical urbanism, the chapter proposes an interdisciplinary framework for analysis and a set of research questions that could aid experimental scholars in broadening their research agendas in order to understand the limits and possibilities of SERs structural cases in the global South. N. Angel-Cabo (B) Faculty of Law, Universidad de los Andes, Bogotá, Colombia e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_8

157

158

N. Angel-Cabo

Keywords Cities · Courts and social change · Social and economic rights · global South · Judicial experimentalism · Social and economic rights · Urban lens

8.1 Introduction Do Constitutions constrain? Antanas Mockus, a renowned ex-mayor of Bogota,1 used this question as the title for an academic paper which, in his own words, sought to discuss the relationship between the constitution and his work as city mayor.2 In the first lines of his essay, Mockus announces his answer: constitutions do constrain, “usually in good ways but occasionally in bad ways.”3 After a few pages of reflections on how his work in the Town Hall was mediated by different systems of regulation—cultural, moral and legal—, the ex-mayor concluded by affirming that, in his experience, constitutions serve as connections that protect the stability and flexibility of other regulatory systems and act as a guide for the actions of the local governor. It is not the purpose of this chapter to present an in-depth discussion of Mockus’ thinking, even if it could raise different debates. My interest here is to approach a topic that emerges from his question and, in particular, from the way in which he describes the purpose of his essay. A question and a purpose that suggest a scarcely studied relationship in the academic literature: the one between the Constitution and the city, and, if one wants, between courts’ decisions interpreting the Constitution and the way in which those decisions are received, discussed and implemented in cities of the global South. We can approach the study of this relationship from different angles. In this chapter, I approach it through the lens of what has been my object of study in the last years: the adjudication of social and economic rights (SERs), through decisions that some authors have called judicial experimentalism. Broadly speaking, experimental justice refers to a judicial approach through which the courts, rather than rendering a final resolution on a case, pursue solutions through the promotion of dialogue and negotiation between governments and affected populations. Judicial experimentalism is relevant to examining the relationship between the constitution and the city for a number of reasons. Chief among these is the fact that a good percentage of the cases addressed by experimental judgments emerge in cities. These include cases concerning the right to housing, education, health or access to basic services, whose guarantee is, to a large extent, the responsibility of local authorities. Surprisingly, scholars attentive to the outcomes of experimental justice (henceforth ‘experimentalists’) seem to pay little attention to the dynamics of cities where cases of this nature emerge. As Baverman expresses: “‘[T]he where of law’ (…) “are not simply the inert sites of law but are inextricably implicated in how law happens.”4 1 Mayor

of Bogotá for two terms (1995–1997 and 2001–2003). 2003. 3 Ibid., p. 1. 4 Baverman 2014, cited in Bennett and Layard 2015, p. 408. 2 Mockus

8 The Constitution and the City: Reflections on Judicial Experimentalism …

159

This chapter is organized as follows. In Sect. 8.2, I present an overview of the academic literature on judicial experimentalism. I highlight the contributions of this literature, but I also emphasize some of its gaps, among others, the tendency to read the scope of impacts of a particular case based on what the court does or fails to do,5 leaving aside a much-needed inquiry on the challenges for implementation of experimental justice on the ground. In Sect. 8.3, I invite experimentalists to change their focus and pay more attention to cities in the global South. Changing the focus here means carrying out situated studies, observing the economic, political, and social situation of cities and analyzing: (a) how courts’ decisions are inserted into the everyday practices of local governments, (b) how the city is transformed by judicial interventions, and (c) how positive—or not—such interventions in the city can be. This vantage point also invites experimentalists to explore how over time, the everyday practices of cities modify the initial understandings of a particular dispute and of the court’s orders. The situated studies of experimental justice I am advocating might emerge from a dialogue between studies on judicial experimentalism and two bodies of literature that pay attention to cities: legal geography and critical urban studies. In this section of my chapter, Sect. 8.4, I highlight some lines of inquiry in these literatures, which might give rise to relevant research questions for future studies on judicial experimentalism. In the final part, Sect. 8.6, I revisit a couple of examples from a case study which I carried out as part of my doctoral research, exploring the impacts of a Colombian Constitutional Court case on the situation of waste-pickers in the city of Cali. While I will not present the entire case study in my limited space here, I aim to offer a couple of snapshots of findings to show how turning our attention to cities may shed light on why an experimental judgment may—or may not—fulfil its objectives. Before beginning one caveat is in order. I focus on experimental justice as it involves dialogical and participatory elements that for long have been relevant for the studies of the urban and because some of the most interesting SERs cases in the South can be described as experimental. But my invitation to examining the relation between the Constitution and the city is not limited to experimental justice. I hope that my discussion will serve academics to gather lessons and insights for future studies of courts and social change in the South related to all types of SERs cases.

8.2 Judicial Experimentalism In countries of the global South, the courts have become central actors of social policy. In light of the permanent adjudication of SERs, a rich body of academic literature is discussing the possible effects of such an intervention. To a great extent, this body of literature has left aside the traditional question about the ‘rights’ of judges to intervene in social policy to discuss, instead, how courts can best contribute to improving the lives of marginalized communities. 5 See

Epp 1998 in relation to the North American context.

160

N. Angel-Cabo

The classical concerns around the adjudication of SERs remain nonetheless: a concern for the separation of powers, uneasiness for the economic impacts of the rulings, and a concern over the possibility that judicial intervention may demobilize social movements. More recently, a concern over equality and access to justice is increasingly expressed, with scholars worrying that only those who have access to courts end up being the ones who can see their SERs guaranteed. While it is true that the adjudication of SERs in the global South is mainly a product of individual litigation, based on structural cases in countries such as India, South Africa, Argentina and Colombia, a number of authors have responded to the question of how judges should adjudicate SERs, promoting what some refer to as judicial experimentalism. Experimental justice entails a judicial approach in which a court does not dictate a final resolution to the case in question but, instead, issues orders that aim to promote dialogue and negotiation among governments, the affected population, and other stakeholders. Liebenberg and Young, for example, describe the judicial experimentalist approach as a set of institutional practices that can be used to overcome some of the separation of powers and democracy-based concerns raised by the adjudication of SERs. In their view, what makes democratic experimentalism different from other public accountability models is the incorporation of basic pragmatist goals of reflexivity, problem solving, learning by experience and experimentation.6 Gargarella, in turn, considers that the richness of this approach lies in certain novelties or changes that gradually appear within the practice of judicial review: “from subtle changes in the attitude of our judges (more sensitivity towards the opinion of political branches) to the unprecedented organization of public hearings with representatives of social movements, NGOs and the government.”7 Sabel and Simon argue that an approach to litigation that emphasizes broad stakeholder negotiation and continuously revises performances and outcomes helps to “destabilize rights” and “to open up public institutions that have chronically failed to meet their obligations”.8 The central argument in favour of experimental jurisprudence is that given the special position from which courts can integrate the perspectives of the affected population and give just recognition to the interests of those displaced from the democratic arena, they can strengthen the values of deliberative democracy.9 In short, its proponents believe that through a dialogical and experimental approach, “judges may help improve the democratic system precisely in those aspects where the democratic system is in more need of help”.10 Among proponents of experimental or dialogical jurisprudence, there are, of course, multiple focuses and approaches and the debate is far from over. For example, there are disagreements about who the participants in constitutional dialogues should 6 Liebenberg

and Young 2015. 2015a, p. 1. 8 Sabel and Simon 2004, p. 1020. 9 Gargarella 2015b. 10 Ibid., p. 108. 7 Gargarella

8 The Constitution and the City: Reflections on Judicial Experimentalism …

161

be, and whether or not judges should limit their role in providing a forum for debate and negotiation, without touching upon the content of the SERs in question. For instance, some proponents of experimental justice refer only to institutional dialogues among courts and the other branches of government,11 privileging what Brand calls a ‘binary institutional relation’ perspective, one that do not consider in full the voices of affected communities.12 Others, by contrast, insist that any constitutional dialogue must seriously promote the direct engagement of citizens, arguing that citizens have as much to contribute to the construction of effective solutions as courts and other branches of government.13 While all proponents of a dialogical approach to the enforcement of rights reject courts’ imposing ‘strong judgments’14 some contend that judges should withdraw from prescribing a particular solution to the problem at hand, deferring solutions entirely to political branches.15 Still, others maintain that the role of courts in the enforcement of SERs cannot be limited to guaranteeing a forum or process for deliberation, but further, should attempt to foster a substantive concept of democracy.16 For example, Bilchitz suggests that courts ought to include a minimum definition of the content of social rights (minimum core) in their judgments,17 while Rodriguez Garavito advocates furnishing a road map for principled decision-making and remedial strategies to contribute to the enforcement of SERs.18 The theoretical debate on experimentalism is significant but there are still few empirical studies that examine and analyze its effects in practice.19 In any event, despite being few, the investigations of this nature that have been undertaken contribute significant insights into both the potential and the limitations of judicial experimentalism.20 These types of empirical studies have been invaluable in permitting a first look at the possible effects of experimental justice and in making recommendations as to how this judicial approach can be ameliorated in practice. Here, it is worth noting the wealth of experimental studies in offering a comprehensive typology of potential impacts of dialogical judgments.21 In addition, empirical studies have provided important indications as to why dialogical activism has a better potential to generate positive effects compared to other types of judicial approaches. We 11 See,

for example, McLean 2009; Dixon 2007. 2011. 13 Ibid. See also Angel-Cabo and Lovera-Parmo 2015; Liebenberg and Young 2015; Chenwi 2015. 14 Tushnet 2008. 15 Tushnet 2008; Sunstein 2001. 16 Brand 2011; Bilchitz 2013; Liebenberg and Young 2015. 17 Bilchitz 2013. 18 Rodríguez Garavito 2011. 19 Rodríguez Garavito 2011; Gloppen 2009. 20 See, for example, Rodríguez Garavito and Rodríguez Franco 2010; Lamprea-Montealegre 2015; Cano-Blandón 2017; Yamin and Parra-Vera 2010; Dugard and Langford 2011; Landau 2012; Langford et al. 2014; Birchfield and Corsi 2010. 21 For a complete typology of effects, see: Rodríguez Garavito and Rodríguez Franco 2010, and Dugard and Langford 2011. 12 Brand

162

N. Angel-Cabo

know, for example, that several cases have contributed to strengthening the capacity of social movements, to unlock institutional inertia and to generate changes in public opinion about a particular problem at hand.22 Existing works also hints at the challenges of experimental justice to produce social change. Some authors, for example, note the difficulty of experimental judgments in placing redistribution squarely on the agenda of public debate and action.23 Despite the significance of these contributions, it is still necessary to carry out more empirical research and to propose other lines of inquiry in order to better understand and address the potential and the limits of judicial experimentalism. Of course, with some exceptions,24 the experimentalist debates have shown a marked tendency to discuss the potential of SERs judgments based exclusively on a courtcentred perspective. For example, many of the explanations of which conditions can increase or reduce the impact of experimental SERs judgments revolve around debates on whether or not the courts in question promoted weak or strong remedies,25 whether the judgments included a minimum core of rights,26 and whether they incorporated a road map for enforcement or performed intense monitoring through the requirement of reports and public hearings.27 Some scholars even offer formulae, which are almost ‘mathematical’ in nature, in which they determine that the success of an experimental judgment will depend on a sum of factors, largely focused on the behaviour of the court. Consider, for example, the recommendation of Rodríguez Garavito, who by contrasting his reading of judgments of the Colombian Constitutional Court on the cases of prisons, health and forced displacement, suggests that experimental judgments are more likely to be effective if courts: (1) clearly affirm the justiciability of the right in question (strong rights); (2) leave policy decisions to the elected branches of power while laying out a clear roadmap for measuring progress (moderate remedies); and (3) actively monitor the implementation of the court’s orders through participatory mechanisms like public hearings, progress reports, and follow-up decisions (strong monitoring).28 While I appreciate the merits of these approaches, I agree with Dugard and Langford that SERs litigation “is generally too unpredictable and diffuse for it to be adequately assessed through a formulaic or scientific approach”.29 This marked focus on court actions and in trying to offer explanatory causes of the outcomes of a particular case through procedural formulae, can make us lose sight of the challenges that the local level operation of the law presents for the implementation of experimental

22 See,

for example, Rodríguez Garavito and Rodríguez Franco 2010; Cano-Blandón 2017; Birchfield and Corsi 2010; Langford et al. 2014. 23 Alviar 2015; Angel-Cabo and Lovera-Parmo 2015. 24 See, for example, Lamprea-Montealegre 2015; Langford et al. 2014; Gloppen 2009. 25 See, for example, Tushnet 2008; Landau 2012; Rodríguez Garavito and Rodríguez Franco 2010. 26 See, for example, Dixon 2007; Bilchitz 2013. 27 Rodríguez Garavito and Rodríguez Franco 2010. 28 Rodríguez Garavito 2011, p. 1692. See also Cano-Blandón 2017. 29 Dugard and Langford 2011, p. 39.

8 The Constitution and the City: Reflections on Judicial Experimentalism …

163

cases. It can also limit our inquiry into possible support structures30 that might help to potentiate the impacts of these types of cases. Another trend in the experimental justice literature is the marked emphasis on studying and discussing judicial experimentalism within a ‘macro’ approach.31 This approach is expressed in two ways. On the one hand, existing experimental studies tend to focus on the so-called macro decisions32 or, in other words, on “courts’ especially visible and ambitious interventions”.33 There are many other cases of experimental judgments that are less ambitious, but just as important, and these, too, should be a source of investigation.34 On the other hand, experimentalists have been inclined to privilege a reading of cases of experimental justice from a national impact perspective. Even when the case emerges in a specific city, the literature presents its outcomes as if they were representative of the effects of an entire country. In the extended conversation on judicial experimentalism we talk about the cases of South Africa, Colombia, Argentina, India, without stopping to think about the different dynamics of the sites and cities in which such cases emerge and seek to influence. Macro approaches are important, but they often conceal profound differences between local jurisdictions within a country.35

8.3 The City as a Legal Space36 One way of broadening the horizons of our research on the impacts of SERs cases is to change the scale of the investigation, promoting more situated or subnational studies.37 Detailed studies dedicated to understanding the processes advanced by courts and the challenges of enforcement in the different local jurisdictions in which courts’ orders seek to influence, can offer us important insights to better understand the prospects of experimental justice. For me, the analogy of the camera lens used by Valverde38 is useful as it refers to inquiries in zoom out and zoom in perspectives. What we can see when we zoom in, could be very different to what we see with a lens open in another focal distance. The scale of our field of vision can be changed in different ways to permit us to see different details that affect our understanding of a case. I propose changing the scale to study how experimental judgments manifest within the scale of the city, that is, 30 Epp

1998. 2016. 32 Cano-Blandón 2017. 33 Rodríguez Garavito and Rodríguez Franco 2015, p. 24. 34 Cano-Blandón 2017. 35 Moncada 2016. 36 I am borrowing this subtitle from Blomley 2013. 37 Moncada 2016. 38 Valverde 2012. 31 Moncada

164

N. Angel-Cabo

addressing in detail how judicial decisions travel, disrupt and impact different cities of the global South. It is true that today we are witnessing in different studies what some authors have called the ‘urban turn’.39 But my invitation to carry out empirical studies on experimental justice in cities of the global South does not follow any particular academic trend. There are a number of reasons that suggest that we should turn to cities to study the challenges of the implementation of SERs cases. On the one hand, most of the world’s population live in cities and it is estimated that the greatest population growth will take place in cities of the global South.40 On the other hand, cities promote interesting processes of innovation and development while at the same time, exhibiting difficult dynamics of accumulation by dispossession,41 complex forms of advanced capitalism,42 and differentiated citizenships.43 It is in cities where increasingly democratic proposals of deliberation and participation coexist with profound inequities. The study of cities also helps us to understand that how every city is governed is distinctive and has its own motion. The city and its dynamics do not stop because a Constitutional Court issues a judicial order. In fact, courts’ orders disrupt urban governance, such orders have to open a path for themselves, and (to recall the essay by Mockus) promote governors’ reflections and actions on how to implement them within the local challenges of the city. In addition, not necessarily all judicial interventions in the city are positive, not even if they have been promoted under dialogue and negotiation with implicated actors. To focus on cities is far from falling into the localism that some authors criticize. As Moncada notes, “Several scales of power overlap, intersect and interact within cities.”44 Cities are home to parallel and complex relationships that involve what has been understood as the global, the national, the regional and the local. Finally, to focus on cities is central to understanding the impacts of courts’ decisions on SERs. As I pointed out earlier, a large percentage of the cases that lead to these decisions occur on urban soil. Consider, for example, the South African cases of Grootboom (2001), Mazibuko (2009), Joseph (2009) and Olivia Road (2008). These are cases of evictions, access to water, and lack of access to public services in cities as markedly different as Cape Town and Johannesburg. Nevertheless, for a foreign reader (like me), who seeks to understand what happened with the intervention of the Constitutional Court in such cases, based on the experimental literature available, there is little I can understand about the differences between these cities, their institutional capacities or the diverse processes of local governance; in other words, in the experimental literature rarely I am able to find a detailed explanation of the particular political, economic and social dynamics of each of these cities and 39 Parakash

2002, cited in Bhan 2016; Angel-Cabo and Sotomayor 2021. 2009; Moncada 2016. 41 Harvey 2012. 42 Sassen 2014. 43 Holston 2009. 44 Moncada 2016, p. 3. 40 Watson

8 The Constitution and the City: Reflections on Judicial Experimentalism …

165

how they may have influenced the implementation of the court’s orders. Even more, from this literature one is far from understanding what could have happened with constitutional cases emerging in South African cities that are profoundly different to Cape Town and Johannesburg, as for example the cities of the South African Eastern Cape. For now, I will use two simple examples to emphasize how changing the scale of our perspective helps to shed light on other aspects of the potential of SERs cases, which may have previously gone unnoticed. A first example has to do with health litigation in Colombia. According to existing data from the Ombudsman’s Office, in 2018 the number of tutela claims in health in the country was 207,734.45 This data suggests an alarming litigation explosion in Colombia, in fact, the highest in the world.46 Nevertheless, when we change the scale, and pay more attention to the different local jurisdictions, we can observe that the bulk of health litigation occurs in specific provinces of the country, mainly in Antioquia, Valle del Cauca and Bogotá. Local jurisdictions such as Chocó and Vaupés have a very low incidence of health litigation (0.36% and 0.07%, respectively), despite the fact that mortality rates in them are high. By changing the scale of our view, more than the high litigiousness, what we see is its absence, which illuminates complicated problems in terms of access to justice that go beyond the noted middle class bias in health litigation.47 What also appears is a worrying and complex socio-spatial inequality in Colombia. The study by Rodríguez Garavito and Rodríguez Franco on the Colombian Constitutional Court Decision T-025/09, regarding forced displacement, serves as a second example of the value of looking at local jurisdictions in order to better understand the impacts of experimental judgments.48 This study provides a good illustration of a research carried out through a macro approach, in which the emphasis is given by the effects generated at the national level. Under this approach, one of the findings of such study is that through judicial intervention, the national government exponentially increased the allocation of resources to aid the displaced population, a real effect and an important impact of experimental justice. But if we change the scale and zoom in, the panorama is a little less encouraging. As illustrated by one of the few follow-up decisions of the Constitutional Court inquiring about the institutional capacity of local jurisdictions to aid the displaced population (Auto 383/10), a significant number of municipalities were operating under the insolvency law, which prevented them from allocating enough resources for this purpose. I do not intend to suggest here that macro approaches are not relevant, as, in fact, they help to offer a comprehensive view of what is happening nationally in a specific country. What I try to do is to highlight the importance of complementing these types of studies with others that resist a mechanistic logic that tries to explain the effects of a court case through what the court does or failed to do in order to foster a more detailed review of what it is happening on the ground. As Pérez-Fernández 45 Defensoría

del Pueblo 2019. 2015. 47 Ferraz 2010; Alviar 2015; Landau 2012. 48 Rodríguez Garavito and Rodríguez Franco 2010. 46 Lamprea-Montealegre

166

N. Angel-Cabo

rightly expresses, referring to other types of interventions in the city, this means, “understanding the limitations within which urban policymakers operate and the opportunities they have to promote ideals of social justice (…).”49

8.4 An Extended Dialogue Between Disciplines A first invitation to change the scale of analysis is to promote a dialogue between the experimental literature and other disciplines in which cities are relevant. In particular, I believe that socio-legal studies on SERs enforcement in the global South could be enriched by a fluent conversation with legal geography and with a rich urban literature that examines the dynamics of cities of the global South. As socio-legal studies on judicial experimentalism, these literatures are also concerned with matters related to inequality and poverty, issues of power, and the need to extend democratic channels to ensure the meaningful participation to all citizens. Although in a preliminary and incomplete fashion, what I will do below is to present some ideas and findings of urban literature (mainly from studies concerned with the global South) and legal geography, which I consider to be useful in complementing the perspectives of socio-legal studies on experimental justice in the global South.

8.4.1 City Matters and Differences Among Cities Matters Too Valverde correctly points out that every act of seeing and representing needs to use a particular scale: “There is no such thing as seeing or representing without scale. And the choice of scale has a close, though not necessarily fixed, relationship with the mode of governance associated or facilitated by that representation.”50 The city provides us a broader view of how social relations, spatial categories, and the possibilities of redistribution of SERs are, to a great extent, mediated and constructed by the law. As I have noted, an exploration into the law and the city has not been broadly developed. Nevertheless, the growing literature on legal geography begins to shed light on the types of reflections and observations that could be carried out to extend the studies on judicial experimentalism.51 As it is known, legal geography is a discipline that concerns itself with investigating the constitutive relations between people, space and the law.52 It is an interdisciplinary project, which aims to explore “how legal practice (…) co-produces places

49 Pérez-Fernández

2010, p. 78. 2015, p. 58. 51 See, for example, Blomley 2013; Castro 2015; Bennett and Layard 2015. 52 Bennett and Layard 2015; Castro 2015. 50 Valverde

8 The Constitution and the City: Reflections on Judicial Experimentalism …

167

through an attentiveness to, and sometimes an apparent dismissal of, spatiality”.53 Some studies (especially early ones) focus on illustrating how the law negates space or makes it invisible, insisting also on the fact that “geographical ignorance has political consequences”.54 Others emphasize the interdisciplinary enterprise by arguing that space and law are mutually constitutive. For these legal geographers, it is not enough to look at the effects of the law on space, but rather to go beyond to show how legal practices and discourses contain various spatial representations of social and political life and how these representations affect legal reasoning and everyday life.55 The current effort of many legal geographers is to understand the constitution of the spatial and the legal in a broader sense, as an assemblage of governmentality.56 By inviting academics to function as “spatial detectives” Benett and Layar offer a number of suggestions on how to undertake legal geographic research. As they point out, legal geographers prefer to carry out research “from the side up”, asking themselves: (…) [W]here is this place/event/dispute located? What do we see? How do legal and spatial meanings combine here? (…). These investigations tend to adopt one or more of three conceptual structures and points of concern, namely (1) what is the spatiality of law itself? – how do spatial settings affect legal implementation and drafting, and vice versa?; (2) what is the role of law in constituting place?; and (3) how do lawyers and geographers engage with notions of jurisdiction and scale?57

There are different focal points of legal geography studies. For example, quite a number of legal geographers are interested in what happens in the city, focusing their attention on its mundane locations and on everyday spaces and practices.58 Others start their research on courts’ judgements, resorting to a discursive analysis that considers the use (or lack thereof) of spatial categories in judicial decisions. Delaney, for example, presents a method of contextual analysis of cases in which legal decisions are subject to an examination that seeks to identify the ‘legal moves’ and the ‘spatial imaginaries’ of the judge.59 This approach broadens doctrinal legal analysis by inviting an inquiry into ‘space-talk’ or a lack of ‘space-talk’ in judgements and to understand that in the presence or absence of this conversation the judge is “doing significant governance work”.60 For the conversation about judicial experimentalism in Latin America, Castro’s study is useful as she presents the works of legal geography in Spanish and invites researchers to relate those works with others on distributive analysis of the law.61 Reviewing Colombian legal literature, she invites us to consider seriously the lawspace-power relationship, which, in her opinion, implies: 53 Bennett

and Layard 2015, p. 406. 2015. 55 Ibid., citing Delaney 2014. 56 Castro 2015. 57 Bennett and Layard 2015, p. 410. 58 Bennett and Layard 2015. 59 Delaney 2010, cited in Bennett and Layard 2015, p. 412. 60 Layard 2015, cited in Bennett and Layard 2015, p. 413. 61 Castro 2015. 54 Castro

168

N. Angel-Cabo

(…) to research how spaces and the ways in which people inhabit them, re-signified and affect the law; (…) to consider the winners and the losers produced by the unequal application of the law in space and the co-construction of the space; to think about the ways in which the law is presented to us as limited, disguised, encapsulated or amplified in certain positions and specific disputes; to ask where the places/events/disputes that we analyse are located and how in these spaces legal meanings and spatial imaginaries are combined.62

8.4.2 Time (Temporality) Matters In a thought-provoking book, Aramis, or the love of technology,63 Bruno Latour studies the failure of a project to develop a rapid urban transport system in Paris. The project had begun with high investment and the promise to revolutionize the city’s transportation. However, two decades later, the project ended, without Aramis (the rapid transport system) ever materializing. In the best style of a detective novel, Latour investigates “who killed Aramis”. His conclusion is that no one in particular killed Aramis. The project died on its own because the interest in it focused on the design of the project, ignoring the ‘roads’ on which it was supposed to travel. In other words, Aramis died because those interested in it did not know how to keep the project alive through time and the changing political and social circumstances. As illustrated by Aramis, time is an important factor through which to understand the effects of interventions in the city. To connect this to our discussion about judicial experimentalism, a court case might be considered the artefact that must travel through the space of the city, be driven by its actors, and be kept alive through time in order to potentiate its results. This temporal factor has not been alien to socio-legal studies. However, it is deepened in recent writings of legal geography. Valverde, for example, invites academics to take note of the presence of time (temporality) as a decisive factor in socio-spatial life.64 Appealing to Bakhtin’s concept of chronotopes, she invites us to consider the ‘rhythms of time’ in space: changes, movements, contradictions and, in general, dynamic processes “to better capture the way in which ideas, as weapons in both historical and more micro-level struggles, are constantly shifting in meaning and effectivity, as they are used for different aims”.65

8.4.3 Politics Matters That politics is relevant in the city is something we already know. However, it is still worth making a call to experimentalists to always ask themselves the question 62 Castro

2015, p. 231. 1996. 64 Valverde 2015. 65 Ibid., p. 4. 63 Latour

8 The Constitution and the City: Reflections on Judicial Experimentalism …

169

of how power is located and exercised in the city. This implies, on the one hand, recognizing that a judge is one of several actors that might exercise power but on the other, to note that the judge is not the only one and not even one that can (or should) exercise a predominant role in the resolution of complex problems in the city. Since the times of Hunter (1990) and Dhal (1961) political scientists have emphasized the importance of locating and analyzing sites of power in the city. Those who study urban politics focus their work on similar issues, such as identifying the actors with power, the relationships between them, the forces that mediate access to public goods and services, the dynamics of local democracies, and the challenges of developmental policies.66 The frameworks of analysis for these concerns have been dominated by the North American literature, mainly under the guise of the so-called elitist,67 plural,68 and political economy theories, which include the theory of growth machines69 and the urban regimes theory.70 Although these theories (especially that of urban regimes) are dominant in the study of urban politics, observations about their limits for the study of cities in the global South are becoming more frequent. Several scholars highlight the need to complement such theories to explore how issues relevant to the global South, such as the role of clientelism, of urban informality and of the agency of subaltern citizens, play in local politics. Moreover, authors criticize the fact that these original theories do not cover the complex power arrangements that emerge from processes of decentralization and neoliberal globalization, which have engendered elaborate transformations on how we think, live and govern contemporary cities. Regardless of the controversies, my call to experimentalists is to consider politics as a determinant factor. To acknowledge that decisions in cities (including the decision of whether or not to comply with a judicial order) are mediated by a complex set of relations between public and private actors, which often act through political networks or social coalitions. It is necessarily to study social movements, but also to investigate how other interested parties such as businesses, foundations or transnational agencies influence them, and in general, how they affect public decisions. In order to study the role of politics in the enforcement of SERs in the city is essential to constantly change the scale of analysis, as what happens in a city is not observed by looking exclusively at the urban space or the dynamics among local actors. Looking at the city also requires observing the influence of national and regional actors and mandates and of the impact of globalization processes on local decision-making. To emphasize why politics matters for empirical studies on SERs judicial experimentalism, let us consider the findings by Moncada71 and Goldfrank,72 who, like

66 Moncada

2016. 1990. 68 Dahl 2005. 69 Logan and Molotch 1987. 70 Stone 1989. 71 Moncada 2016. 72 Goldfrank 2011. 67 Hunter

170

N. Angel-Cabo

the experimentalists, are interested in participatory enterprises for the resolution of social problems. Moncada, for example, by examining different participatory political projects to deal with urban violence in different cities of Colombia, concludes that three factors influenced the success or failure of these projects: (1) clientelism, (2) the role of businesses and their relationship with institutional actors and (3) the pressure of armed actors in the city.73 Goldfrank, by examining three participatory processes promoted by left-wing governments in Porto Alegre, Montevideo and Caracas, concludes that the success or failure of such projects depended on two factors: (1) the level of decentralization, expressed in the degree of intervention by national authorities in the city and the national resources available for the municipality and, (2) the level of institutionalization of the opposition parties in the local arena.74 According to Goldfrank, these factors “largely defined the ability of progressive governments to design truly participatory institutions and to attract and maintain citizen participation”.75

8.4.4 Inquiries from the Global South Matter Those of us who have embarked on the study and discussion of SERs based on cases from South African, Colombian or Indian courts, just to name a few, have joined an extended conversation about courts and social change which has largely been driven by scholars in the global North. But the question of what does it mean “to look from the South”?76 what does it mean to do “theory from the South”?77 or, simply, what do we bring forth to the conversation about courts and social change from the South? must persist in our inquiries. As Bhan rightly notes, thinking from the South cannot mean: “studying cities of the global South, the ‘developing world’ or the ‘Third World’ to add greater empirical diversity to our list of global cities”.78 It should mean more than that, and among other things, it should mean maintaining vigilance over the supposed ‘universal grammar’ of knowledge. Doing inquiry from the South, means prioritizing a set of questions and perspectives that emerge from a specific place and that, even subject to travel, they should not erase their origin and their histories.79 Postcolonial theory provides provocative lines of research, useful to the interdisciplinary enterprise of studying the relationship between the constitution and the city through judicial experimentalism. On the one hand, these studies insist on rejecting the description of cities of the global South as apocalyptic, awaiting development 73 Moncada

2016. 2011. 75 Ibid., p. 7. 76 Watson 2009. 77 Comaroff and Comaroff 2012. 78 Bhan 2016, p. 13. 79 Ibid. 74 Goldfrank

8 The Constitution and the City: Reflections on Judicial Experimentalism …

171

or the arrival of modernity, as if they were confined to an “imaginary waiting room of history”.80 Rather, they invite us to understand the global South as a relational geography: as a set of dynamic and changing locations.81 Postcolonial theory applied to the urban is concerned with revealing the heterogeneity of cities, with restoring the agency and voices of subaltern citizens that claim their ‘right to the city’. Who speaks, who is listened to, who can ‘inhabit’ the city, how subaltern residents build and attribute meaning to urban spaces, and how they participate, are key questions to postcolonial theorists. The concept of periphery is central. For Caldeira the periphery, more than a specific place, is a concept of inquiry.82 Roy, in turn, defines it as “is a space produced through the interventions of humanitarianism, urban restructuring, capital flows, policing and control”,83 but also as a space “of innovation and adaptation … potentially destabilizing of the center”.84 Roy’s proposal, like that of other postcolonial scholars, is to do theory from regular cities, from places that are usually considered peripheral: “peripheral of the world economy and politics, peripheral within cities, peripheral knowledge of authority”.85 In his deep study on the evictions from bastis in Delhi, Bhan outlines concerns that have marked the interests of postcolonial studies. These include: (1) the debate to understand urban informality/illegality; (2) the production of space and the regulation of its value; (3) debates on ‘good governance’, and its intersection with ideas of development of cities; (4) the political field of urban citizenship and the possibilities of substantive rights and belonging to the city; (5) the resistance and capacity of the subordinate residents to fight against the exclusion of the cities they inhabit; (6) the relationship between democracy and inequality in the city.86 In addition to these concerns, Bhan proposes a final line of research, that of judicialization specifically as an urban phenomenon,87 which is worth thinking about given its long absence from studies on cities. To tie it to our discussion, what we observe is that if the city has been invisible for experimentalists, urban scholars, in turn, have forgotten about (or have only just begun to notice) the growing influence of the judge as an urban actor. The few works that take seriously the role of the judge in cities of the South provoke, nonetheless, relevant sources of exploration. Coggin and Pieterse, for example, embark on the task of relating SERs litigation and adjudication in South Africa with the claims of the Right to the City movement.88 Through an explanation of a concept proposed by Lefebvre and a presentation of different courts cases on 80 Chakrabarty

2009, p. 8. 2016; Roy 2011. 82 Caldeira 2000. 83 Roy 2011, p. 232. 84 Ibid, citing Simone 2010. 85 Bhan 2016, p. 14. 86 Bhan 2016. 87 Ibid. 88 Coggin and Pieterse 2012. 81 Bhan

172

N. Angel-Cabo

SERs, they maintain that the recognition and adjudication of rights, “can embody, facilitate and enhance various constituent elements of the right to the city”.89 Their reading, however, is not devoid of issues of concern. On the one hand, they warn of the adverse effects that can follow from SERs adjudication, “especially where judges are not aware of the contexts in which the impact of their judgements are felt, or where those tasked with conceiving or implementing urban policies are unfamiliar with the requirements posed by the constitutional standards to which they must adhere”.90 On the other hand, they are concerned that courts, by adjudicating SERs frustrate important dimensions of the right of the city, that is, to “disrupt or unduly predetermine the continuous balance between competing claims to the city, in either its concrete or aspirational forms”.91 Their final concern refers to the risk that courts, when deciding SERs cases, align themselves with a neoliberal conception of citizenship, which underlies a good part of the governmental policies related to urban development. Bhan92 and Gupta,93 in their investigations, confirm this risk. They both observe the growing judicial intervention in the city though multiple eviction orders from slums in New Delhi. Their concerns are condensed in a series of questions raised by Bhan: “How did this [evictions of vast number of citizens] occur through a judicial innovation [Public Interest Litigation] created precisely to be the ‘last resort for the bewildered and the oppressed?” When did the claims of poverty cease to be sufficient to guarantee a right to inhabit the city for numerous residents?94 Guptha responds to these questions by noting that from the year 2000, different courts’ decisions in New Delhi have strengthened a version of the ‘modern city’ in line with an agenda of neoliberal development that makes it increasingly difficult for marginal populations to claim, through the law, the possibility of inhabiting the space of the city.95

8.5 A Tentative Proposal to Begin the Conversation How can we integrate socio-legal studies on judicial experimentalism gathering contributions from legal geography and the rich literature on urbanism of the South? I think that as experimentalists, we should begin by broadening our repertoire of research questions. As a way to start my proposed interdisciplinary conversation, I present below some questions that may serve as entryways to expand the perspective of SERs studies in the city. I draw from the richness of the typology of effects proposed by experimental authors, and use some of their questions, but I include 89 Ibid.,

p. 274.

90 Ibid. 91 Ibid.,

p. 275. 2016. 93 Gupta 2014. 94 Bhan 2016, p. 8. 95 Gupta 2014. 92 Bhan

8 The Constitution and the City: Reflections on Judicial Experimentalism …

173

others that emerge from legal geography and from the rich urban literature referred to above.

8.5.1 Choosing the Case(s) As the study of experimentalists begins with SERs adjudication, choosing a case for study will depend, largely, on a court’s decisions. Nevertheless, we must take seriously the invitation of postcolonial authors to inquire about decisions that will affect ‘regular cities’ or those that have not been the locus of theoretical production. To study the way in which experimental judgements are inserted in these less-studied cities, how they transverse and generate effects in these other cities and in their peripheral spaces, can help us to have other insights about the limits and possibilities of experimental justice. This necessarily implies ethnographic work or detailed case studies that incorporate rich interdisciplinary dialogue.

8.5.2 The Reading of the Case Delaney is right when he claims that the study of the effects of a judicial decision must begin by the reading and analysing of it.96 Following Delaney’s suggestion, the analysis cannot be confined to legal reasoning expressed in the text, without considering other factors that are relevant in terms of the construction of the case. Questions such as: who intervenes in the elaboration of the decision? Which voices were influential? How are the city and its form of governance represented (or not)? Which are the ‘legal movements’ and ‘spatial imaginations’ of the judge and of those that intervene?97 Does the decision construct socio-spatial categories? Does it explore the capacities of the city to achieve the aims recommended in the decision? How is the beneficiary population represented? How is the social and political life of the city portrayed? What are the discourses and imaginaries regarding poverty, vulnerability and inequality in the city? Do judges acknowledge the different scales of power that have an influence in the city?

8.5.3 Situating the Study in the City Understanding the city has to be a central starting point: its history and its social and economic composition must be examined in order to understand how its sociospatial inequalities are created, and to get a sense of the city’s institutional capacities 96 Delaney 97 With

2010, cited in Bennett and Layard 2015. reference to the method suggested by Delaney.

174

N. Angel-Cabo

to comply with the judicial decision. Scholars must inquire into unequal access to “resources, mobility, public services, and production structures” that influence urban spaces.98 We must observe how imaginaries of citizenship present in the city and how these influence the discussions about who could ‘really’ be considered an urban citizen.99 It is important to study the actors and the relationships between them to understand to what extent judicial orders are aligned with the interests of the different actors and with competing local agendas. Scholars must trace how the court’s discourses and its imaginaries of poverty, vulnerability, and inequality of the beneficiaries of a case move in the city through time and space.100 We must consider how the different scales of power overlap, how they cross each other and interact within the city.101

8.5.4 The Sphere of Participation The core of judicial experimentalism lies in the promotion of moments of participation and negotiation between governments and interested parties. Nevertheless, the opening of a participatory forum does not ensure that all the voices are heard with the same level of consideration and recognition. Although their questions do not emerge from the South, Larocque’s framework102 complemented by questions by Papadopoulos and Warin103 are useful when it comes to looking at participatory forums. I add to these other questions that emerge out of my reading of critical urbanism, especially those that I consider pertinent for analyzing the role of the judge in these ‘invited spaces’ of participation.104 If a characteristic of local governance has been to open up spaces for citizens’ participation in the decision-making processes, it is essential to ask what changes when courts are the ones who prompt participation in these kinds of spaces (see Table 8.1).

8.5.5 The Expected Effects One of the most important contributions of the experimental literature is that of offering a rich typology of effects and impacts (direct and indirect) that can be expected from experimental cases. However, if we consider the importance of looking at city dynamics, we should add other questions to this typology of effects. In 98 Sotomayor 99 Bhan

2015.

2016.

100 Ibid. 101 Moncada

2016, p. 3. 2011. 103 Papadopoulos and Warin 2007. 104 Cornwall 2004, citing Brock et al. 2001. 102 Larocque

8 The Constitution and the City: Reflections on Judicial Experimentalism …

175

Table 8.1 Criteria and questions for analysis of deliberative processes Criteria

Questions

Franchise (openness and Access to the participatory space)

• Who is involved in the process and what is their legitimacy? • Does the participatory space satisfy a criterion of inclusiveness (is it open to all) or is it selective (by invitation)? • Are there any obstacles to participation by women and men and disadvantaged segments of society? (Including socio-spatial obstacles) • Who faces obstacles to participate (e.g. women, indigenous or Afro-descendant persons, marginalized segments of society)? How are these obstacles to participation expressed? • What are the incentives and/or disincentives for different actors to engage in the deliberative process?

Quality of deliberation

• What is the scope of the discussion and how is the style of interaction? • Who establishes the agenda? • Are topics open to change?

Publicity and accountability

• What is the frequency of consultation? • What are the institutional procedures for consultations? • Besides institutional participatory processes, are there any other processes of deliberation taking place? How do they influence institutional participatory processes? • Does the institutional process allow for multiple perspectives to come into the debate? • Does the process contemplate mechanisms to deal with power relations?

Role of courts

• Does the judge succeed in his role as a mediator of the dialogue? • Does the judge help to address the absence of viewpoints? • Does the judge help to balance forces of power within participatory spaces?

Source The author

Table 8.2, I include with minor changes the classification of effects proposed by Rodríguez Garavito and Rodríguez Franco105 Second, following Scheingold,106 I add as a variable the possibility of backlash. Finally, in Column 2, I include questions previously formulated by the aforementioned authors and by other experimentalists, but I also add questions that emerge from the literature on legal geography and critical urbanism. 105 Rodríguez

Garavito and Rodríguez Franco 2010. 2004, p. xi.

106 Scheingold

176

N. Angel-Cabo

Table 8.2 Criteria and questions for impact analysis Criteria/typology

Questions

Effects on equality

• Has the case contributed to the amelioration of the socioeconomic situation of the affected population? • Has the case contributed to the efforts and capacity of the beneficiaries in their struggle to deal with exclusion from the cities they inhabit?

Unlocking effects

• Has the case contributed effectively to unblocking institutional inertia? • Have the spaces in which the subaltern citizens can interact with the authorities been broadened?

Effects on coordination

• Has the case helped institutions to collaborate on the design, finance and implementation of appropriate remedies? (National/local authorities; between local authorities; between other authorities)

Effects on public policy? • Has the case generated changes in policy content? Who do these changes benefit? • Have the results of the participatory process been included in the policy changes? • Have the policy changes helped to improve the equity of access to services and resources for the affected population? Participatory effects

• Has the case helped to form coalitions of activists to influence the topics under consideration? Who are the activists and what are the agendas they promote? • Has the process influenced changes in activist or social movements’ strategies? • What triggered or mobilized broader participation around the case? • Has the case served to develop empowering tools for social movements? • Has the process of implementation of the case led to greater mobilization and participation around the topics in question? (For everyone?)

Effects on public opinion • Has the case helped to change the views or understandings about the problem at hand? • Has the case helped to change views about the affected population? • Are ‘sensitive’ or contested topics (e.g., neoliberal policies, dissident voices) made visible? Backlash

Source The author

• Has the implementation of the court orders produced negative or undesired effects? (E.g., affecting positive processes in place in the city, generating division in the social movement, producing greater socio-economic and socio-spatial inequality)

8 The Constitution and the City: Reflections on Judicial Experimentalism …

177

8.6 The Case of Cali’s Recyclers107 : An Example of Why It Is Worth Changing the Focus To conclude, and as a way to concretize the discussion, below, I present a couple of findings from a recent case study that I carried out in the Colombian city of Cali, where I examined the impacts of the Constitutional Court Judgment T-291/09. The case emerged after the city’s decision to close the municipal garbage dump (Navarro), without considering what would happen to the recyclers who, for decades, had been informally working there to ensure their livelihood. The Court granted the recyclers’ tutelas108 and declared that the dump had not been closed under parameters of sustainability. Consequently, it ordered the authorities to guarantee the immediate livelihood of the Navarro recyclers (a minimum core of rights) and to implement a participatory forum to design a public policy aimed at including recyclers in the formal municipal waste management system.109 The Court also named an NGO as monitor of the implementation of its orders, and established timelines for the authorities to report on progress. In short, this was a decision that, at least in its formulation, seemed to promise a successful enterprise of judicial experimentalism. Nevertheless, as I describe in detail elsewhere,110 almost ten years after decision T-291/09 was issued, its effects are not encouraging. A public policy was issued in 2017 but has not been implemented and it is not foreseeable that it will. The court’s decision did not lead to changes in public opinion, the recyclers are divided, and they no longer trust the promises of the court to improve their socio-economic situation. In terms of its effects it is not unreasonable to maintain that this is a clear example of a modest judicial experimentalism. If we were to answer through the proposals of some experimentalists, the conclusion would be that this judicial experimentalism failed because the Court did not carry out a strong monitoring, or because its roadmap was not sufficiently clear. But such answers would be inadequate in describing what happened in this case. Although I cannot present all of the results of these case study here, I will offer three snapshots of findings centred on the city’s political situation, on the timing of the judgment and on Cali’s institutional capacity to respond to the implementation of the Court orders. I hope that these brief snapshots serve to illustrate why expanding the focus of analysis to consider the specificities of local jurisdictions can provide us with other responses regarding the fate of SERs cases.

107 In

Colombia waste pickers are also called recyclers. for the protection of human rights. 109 Specifically, the Court ordered the creation of a “Committee of Inclusion”, composed of Cali’s recyclers’ organizations, different public entities and organizations from the so-called civil society. 110 Angel-Cabo N. (n.d) Garbage, Courts and Political Struggles: Socioeconomic rights enforcement in emerging global cities (doctoral dissertation, pending defence). 108 Writ

178

N. Angel-Cabo

8.6.1 Snapshot 1: The Invisibility of the City and the Timing of the Court Orders That courts do not see cities, even when cases emerge in them, is something that authors that study local governments have already identified.111 And, in this case, the invisibility of the city for the Colombian Constitutional Court was evident at different points in time. One of which influenced the participatory process prompted by the Court. As I mentioned, one of the orders of the Court was the formation of a Committee through which through dialogue and negotiation between different actors, a new policy benefiting Cali’s recyclers could be designed. As someone has to take charge of the administrative aspects of participatory spaces, the Court ordered Cali’s Mayor, EMSIRVA (the old municipal company responsible for the dump), and the Superintendence of Residential Public Services—SRPS—(a national entity) to organize the meetings and lead the Committee. On first reflection, this could seem reasonable. Nevertheless, if the Court had stopped to look at what was really happening in the city, it would have realized that the order was doomed to fail. Sometime before the issuing of decision T-291/09, the SRPS had ordered the liquidation of EMSIRVA. This decision generated a political ‘earthquake’ in the city. First, the liquidation of the municipal company was seen in Cali as an undue intrusion of the national government on its local autonomy. Second, there was great uncertainty regarding the fate of the company’s current and retired employees pending liquidation.112 The situation was even more difficult if we bear in mind the ideological distances between the national and the local governments. The then Colombian president was a right-wing politician, whereas Cali’s mayor belonged to the left. The national government favoured the privatization of public services throughout the country, whereas the local government was convinced that municipal companies should be the ones in charge of providing public services. As the Court did not stop to consider the social, political and economic dynamics of the city, it did not recognize that it was ordering two authorities in obvious political confrontation to lead the Committee and to a municipal company in the process of liquidation. The city’s local political situation and the timing of the Court order, explain to a great extent the initial failure of the Committee. Although it met regularly and the recyclers’ organizations went to the meetings, the process was mediated by mistrust. After six months of meetings, some of the participants thought they had reached an agreement on the content of the future public policy. But they soon realized that the agreement would not materialize. The mayor decided to create a new municipal company, insisting that it would ensure compliance with decision T-291/09, as it was supposed to include Cali recyclers as stockholders.113 Soon after, the Colombian Attorney General dismissed that 111 Schragger

2014; Azuela 2008.

112 At the time of the order of liquidation, Emsirva had 500 formal workers, 840 indirect contractors,

and more than 930 pensioners. solution that had never been discussed in the Inclusion Committee.

113 A

8 The Constitution and the City: Reflections on Judicial Experimentalism …

179

mayor and a newly elected mayor, this time, a man of the centre-right, stepped into office deciding to liquidate the municipal company recently created by the previous mayor. The implementation of the Court case would have to begin again.

8.6.2 Snapshot 2: Global Cities, Political Regimes and Competing Discourses With a new mayor in office, waste pickers’ organizations and the NGO appointed as monitor renewed their hopes that the Court orders would be quickly implemented. But again, the disappointment would be high. In the following years, progress in implementation was almost nil. One of the explanations for this inactivity has to do with the implementation’s rivalry with other so-called imaginaries of the global city. Around the time of the election of the new mayor, the city entered in intense competition with other cities around the world seeking to acquire global status that would help attract tourism and economic investment. Despite the broad respect accorded to the Constitutional Court, a case on garbage that sought to include waste-pickers in the city’s public waste management scheme did not fit easily with the government’s efforts to attract foreign investment in the city and to present Cali globally as a clean and modern metropolis. An interesting episode illustrates the influence of these imaginaries of the global city on the implementation of the Court’s orders. Some of my interviewees proudly pointed out that Cali had been nominated by a prestigious international organization as one of the most sustainable cities in the world. One of the reasons that justified the nomination was the closure of the Navarro garbage dump. Ironically, this nomination contradicted the opinion of the Colombian Court, which believed that the closure of Navarro, although necessary, was not performed under sustainable conditions, as it disregarded the livelihoods of the people who used to live and work there. So, perhaps unsurprisingly, for a local administration interested in attracting tourism and foreign investment, the prospect of winning an international award resonated more strongly than the critical view of a local court. The implementation of the Constitutional Court’s ruling would have to battle it out with other types of ‘discourses’, concerns and initiatives circulating in the city, including those of international organizations. A second factor that explains the inactivity of the administration in implementing the Court’s ruling pertains to local politics. As often noted by scholars working in urban political regimes, economic elites, mainly the business community, carry great weight in shaping and sustaining a city’s governing arrangements. In the Cali case, a good example of this dynamic can be seen in the influence of a local social corporate responsibility foundation on the municipal government. This was not just any foundation, but rather one tied to one of the largest industries in Cali, owned by a prestigious family from the city. The local foundation’s director opposed the Court’s decision right from the start. In his opinion, the Court erred in considering that waste pickers should become entrepreneurs and formally participate in the city’s solid waste management scheme. In his view, the only worthy goal was to help recyclers improve their livelihood

180

N. Angel-Cabo

even through economic activities unrelated to recycling, such as lawn mowing, hairdressing or product marketing. This was a vision far removed from the one expressed by the Court in Judgment T-291/09, where the tribunal insisted that the municipality should try to preserve the role of recyclers as autonomous recycling entrepreneurs in the local economy. The view of the corporate responsibility foundation’s director ends up being one of the most influential discourses in the city, to the point where the municipal government abandoned its initial course of action towards implementation of the Court’s ruling. In fact, the municipal government end up hiring this foundation as a consultant for the development of different workshops and activities for waste pickers, some that were not even connected with the occupation of recycling. The municipal government presented these initiatives as important developments in the implementation of the ruling. This created a profound discomfort among various stakeholders of the Court’s ruling, including some waste pickers and the director of the NGO appointed by the Court as monitor. These parties were appalled by the fact that the municipal government was ‘delegating’ part of the implementation of the ruling to a foundation tied to a multinational company that was one of the main buyers of recycling goods in the city. Paralleling the argument of structuralist scholars,114 these actors believed that Cali’s industry had no interest in changing the pecking order of the recycling chain, where recyclers are the lowest on the economic totem pole, receiving very low prices for recuperated solid wastes. These individuals and groups accused the corporate responsibility foundation of interfering, rather than helping with the implementation of the case, as a way to privilege the economic interests of Cali’s industrial sector over those of the waste pickers. However, despite how strong such criticisms were, the voice of the foundation prevailed and influenced the municipal government at the time. Similar to the previous anecdote, here too, the Court’s ruling would have to try to compete with other visions and discourses strongly prevalent in the city.

8.6.3 Snapshot 3: The Invisibility of the City and Its Institutional Weaknesses For almost five years, the NGO appointed as monitor by the Court and the recyclers who had felt deceived by the decisions made by Cali’s mayors, sent several communications to the Constitutional Court, warning of non-compliance with its orders and demanding a public hearing in Bogotá. Given that the new composition of the Court is sceptical of centralizing in the tribunal the monitoring processes of structural cases,115 five years after Judgment T-291/09, it issued a follow-up decision, ordering the reopening of the Committee and assigning to Cali’s municipal judge the task of monitoring the case. The follow-up decision had a number of problems, but one of the most evident was the order given to the municipal judge, as the Court did not 114 See,

for example, Portes et al. 1989; Birkbeck 1979. and Lovera-Parmo 2015.

115 Angel-Cabo

8 The Constitution and the City: Reflections on Judicial Experimentalism …

181

stop to consider whether he knew what was expected in the monitoring of structural cases or whether the judge had the institutional capacity to do so. In my field study, I went to the courthouse in question to ask how the judge was conducting the monitoring of this case. When I got there, right at the entrance, I saw a poster resembling an obituary, reading: “Colombian justice rests in peace”. It was a protest against a legislative proposal to modify various articles of the constitution referring to the judicial branch. For me, the poster anticipated what I then found at the courthouse. In a small room with three desks piled high with files, I approached a secretary who (to the beat of regueton) asked me if I was there to look at the file of T-291/09, as I had previously announced my visit. Once I had access to the file, I was surprised to see that it was tied tightly with a string, as if no one had looked at it. I inquired whether she knew what progress had been made in relation to this case. The secretary spontaneously responded: “No one has opened that file; it has always been there, on that same rack.”116 As I intended to talk to the judge, I insisted that I wanted to interview him. The secretary went into his office and very quickly came back out to tell me: “The judge says that he cannot see you, he has only just taken office and he knows nothing of the case. He started just a few days ago.”117 I asked her for the previous judge’s contact details so that I could interview him instead, to which she promptly responded: “Look. Don’t waste time. No one has seen the file. This courthouse has changed judges three times over the last year. As soon as a judge takes office they transfer him to another courthouse.”118 I thanked the secretary for her help, left the office, and as I walked down the street I could not stop thinking that, at least in that courthouse, Colombian justice was indeed resting in peace.119

8.7 Conclusion Cities are fundamental arenas for the contestation of rights.120 It is in cities where most SERs cases emerge and seek recognition. The urban fabric of a good percentage of SERs cases is as yet still invisible for most scholars preoccupied with issues of courts and social change. This paper invites scholars to pay attention to the role that cities play for the enforcement of SERs, focusing on a species of judicial decisions that some authors have called judicial experimentalism. Experimental justice refers to a judicial approach through which courts, rather than rendering a final resolution on a case, pursue collaborative solutions through the promotion of dialogue and negotiation between governments and affected populations. Gathering insights from socio-legal studies, legal geography and critical urbanism, I propose a framework for analysis and a set of questions that could aid experimental scholars in broadening 116 Field

diary, 5 June 2015.

117 Ibid. 118 Ibid. 119 Ibid. 120 Angel-Cabo

and Sotomayor 2021.

182

N. Angel-Cabo

their research agendas in order to understand the limits and possibilities of SERs structural cases in the urban landscape. There is still too much to say about the relations between the Constitution and the city, or between courts’ decisions interpreting the Constitution and the way they are received and implemented on the ground. Next steps of the proposed interdisciplinary endeavour should be aimed at developing other case studies that help us to gain comparative insights on the role of courts as mediators of urban conflicts and to evaluate the extent to which court-decided SERs cases are able to counteract prevailing geographies of inequity, poverty and social injustice in different cities of the global South.

References Alviar H (2015) Distribution of Resources Led by Courts: A Few Words of Caution. In: Alviar H, Klare K, Williams L (eds) Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, London Angel-Cabo N, Lovera-Parmo D (2015) Latin American Social Constitutionalism: From Courts to Popular Participation. In: Alviar H, Klare K, Williams L (eds) Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, London Angel-Cabo N, Sotomayor L (2021) Seeing human rights like a city: the prospects and perils of the ‘urban turn’. In: Davis M, Kjaerum M, Lyons A (eds) Research Handbook on Human Rights and Poverty. Edward Elgar Publishing, Cheltenham Azuela A (2008) The use of eminent domain in São Paulo, Bogotá, and Mexico City. Lincoln Institute of Land Policy, Massachusetts Bennett L, Layard A (2015) Legal Geography: Becoming Spatial Detectives: Legal Geography: Becoming Spatial Detectives. Geography Compass 9(7):406–422 Bhan G (2016) In the public’s interest: evictions, citizenship, and inequality in contemporary Delhi. The University of Georgia Press, Athens Bilchitz D (2013) Constitutions and distributive justice: Complementary or Contradictory. In: Bonilla D (ed) Constitutionalism of the Global South - The Activist Tribunals of India, South Africa and Colombia. Cambridge University Press, New York Birchfield L, Corsi J (2010) Between starvation and globalization: realizing the right to food in India. Michigan Journal of International Law 31(4):691–764 Birkbeck C (1979) Garbage, Industry, and the “Vultures” of Cali, Colombia. In: Bromley R, Gerry C (eds) Casual Work and Poverty in Third World Cities. Wiley, New York Blomley N (2013) What sort of a legal space is a city? In: Mubi Brighenti A (ed) Urban Interstices: The Aesthetics and the Politics of the In-Between. Ashgate Publishing, New York Brand D (2011) Judicial deference and democracy in socio-economic rights cases in South Africa. Stellenbosch Law Review 22(3):614–638 Caldeira T P R (2000) City of walls: crime, segregation, and citizenship in São Paulo. University of California Press, Berkeley Cano-Blandón L F (2017) Constitucionalismo experimental y protección del derecho al agua en Colombia (unpublished doctoral thesis). Universidad de los Andes, Bogotá Castro M V (2015) Derecho, Espacio y Poder. Aproximación a la geografía legal desde el análisis distributivo (unpublished doctoral thesis). Universidad de los Andes, Bogotá Chakrabarty D (2009) Provincializing Europe Postcolonial Thought and Historical Difference. Princeton University Press, Ewing Chenwi L (2015) Democratizing the socio-economic rights-enforcement process. In: Alviar H, Klare K, Williams L (eds) Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, London

8 The Constitution and the City: Reflections on Judicial Experimentalism …

183

Coggin T, Pieterse M (2012) Rights and the City: An Exploration of the Interaction Between Socio-economic Rights and the City. Urban Forum 23(3):257–278 Comaroff J, Comaroff J L (2012) Theory from the South: or, how Euro-America is evolving toward Africa. Paradigm Publishing, Boulder Cornwall A (2004) Introduction: New democratic spaces? The politics and dynamics of institutionalised participation. IDS Bulletin 35(2):1–10 Dahl R A (2005) Who governs? democracy and power in an American city. Yale University Press, New Haven Defensoría del Pueblo (2019) La tutela y los derechos a la salud y a la seguridad social 2018. Defensoría del Pueblo, Bogotá Dixon R (2007) Creating Dialogue about Socioeconomic Rights: Strong-Form versus Weak-Form Judicial Review Revisited. International Journal of Constitutional Law 5(3): 391–418 Dugard J, Langford M (2011) Art or science? Synthesizing lessons from public interest litigation and the dangers of legal determinism. South African Journal on Human Rights 27(1):39–64 Epp C R (1998) The rights revolution: lawyers, activists, and supreme courts in comparative perspective. University of Chicago Press, Chicago Ferraz O L M (2010) Harming the poor through social rights litigation: lessons from Brazil. Texas Law Review 89:1643–1668 Gargarella R (2015a) La « sala de máquinas » de las constituciones latinoamericanas: Entre lo viejo y lo nuevo. Nueva Sociedad 258:1–8 Gargarella R (2015b) Deliberative Democracy, Dialogical Justice and the Promise of Social and Economic Rights. In: Alviar H, Klare K, Williams L (eds) Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, London Goldfrank B (2011) Deepening local democracy in Latin America: participation, decentralization, and the left. The Pennsylvania State University Press, University Park Gloppen S (2009) Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment. Erasmus Law Review 2(4):465–480 Gupta P S (2014) Judicial Constructions: Modernity, Economic Liberalization, and the Urban Poor in India. Fordham Urban Law Journal 42:25–90 Harvey D (2012) Rebel cities: from the right to the city to the urban revolution. Verso, New York Holston J (2009) La ciudadanía insurgente en una era de periferias urbanas globales. Un estudio sobre la innovación democrática, la violencia y la justicia en Brasil. http://sgpwe.izt.uam.mx/ files/users/uami/nivon/HOLSTON_J_ciudadania_insurgente.pdf Hunter F (1990) Community power structure: a study of decision makers. University of North Carolina Press, Chapel Hill Landau D (2012) The reality of social rights enforcement. Harvard International Law Journal 53(1):189–247 Langford M, Cousins B, Dugard J, Madlingozi T (eds) (2014) Socio-economic rights in South Africa: Symbols or substance? Cambridge University Press, New York Lamprea-Montealegre E (2015) Derechos en la practica: jueces, litigantes y operadores de politicas de salud en Colombia (1991–2014). Ediciones Uniandes, Bogotá Larocque F (2011) The Impact of Institutionalization, Politicization and Mobilization on the Direct Participation of Citizens Experiencing Poverty. Canadian Journal of Political Science / Revue Canadienne De Science Politique, 44(4), 883-902 Latour B (1996) Aramis, or, The love of technology. Harvard University Press, Cambridge Liebenberg S, Young K (2015) Democratic experimentalist approach. In: Alviar H, Klare K, Williams L (eds) Social and Economic Rights in Theory and Practice: Critical Inquiries. Routledge, London Logan J R, Molotch H L (1987) Urban fortunes: the political economy of place. University of California Press, Berkeley McLean K (2009) Constitutional deference, courts and socio-economic rights in South Africa. Pretoria University Law Press, Pretoria Mockus A (2003) Do Constitutions constrain? Legal, moral and cultural self-bindings to prevent shortcuts. Conference paper. Columbia 250 Symposium. http://c250.columbia.edu/c250_events/ symposia/constitutions/papers/mockus_paper.pdf

184

N. Angel-Cabo

Moncada E (2016) Cities, business, and the politics of urban violence in Latin America. Stanford University Press, Stanford Papadopoulos Y, Warin Ph (2007) Are innovative, participatory and deliberative procedures in policy making democratic and effective? European Journal of Political Research 46(4):445–472 Pérez Fernández F (2010) Laboratorios de reconstrucción urbana: hacia una antropología de la política urbana en Colombia. Antípoda. Revista de Antropología y Arqueología 10:51–81 Portes A, Castells M, Benton L A (1989) The Informal economy: studies in advanced and less developed countries. Johns Hopkins University Press, Baltimore Rodríguez Garavito C (2011) Beyond the courtroom: The impact of judicial activism on socioeconomic rights in Latin America. Texas Law Review 89:1669–1698 Rodríguez Garavito C, Rodríguez Franco D (2010) Cortes y cambio social: cómo la Corte Constitucional transformó el desplazamiento forzado en Colombia. Dejusticia, Bogotá Rodríguez Garavito C A, Rodriguez Franco D (2015) Juicio a la exclusión: el impacto de los tribunales sobre los derechos sociales en el Sur Global. Siglo XXI, Buenos Aires Roy A (2011) Slumdog Cities: Rethinking subaltern urbanism. International Journal of Urban and Regional Research 35(2):223–238 Sabel C F, Simon W H (2004) Destabilization rights: how public law litigation succeeds. Harvard Law Review, 117(4):1015–1101 Sassen S (2014) Expulsions: brutality and complexity in the global economy. The Belknap Press of Harvard University Press, Cambridge Scheingold S A (2004) The politics of rights: Lawyers, public policy, and political change. The University of Michigan Press, Ann Arbor Schragger R C (2014) Can Cities Govern? [Video] (22 April 2014). https://www.youtube.com/ watch?v=xWp1X3DOjI4&t=24s Sotomayor L F (2015) Planning through Spaces of Exception: Socio-Spatial Inequality, Violence and the Emergence of Social Urbanism in Medellín (2004-2011). PhD Thesis, University of Toronto Stone C N (1989) Regime politics: governing Atlanta, 1946–1988. University Press of Kansas, Lawrence Sunstein C R (2001) Designing democracy: what constitutions do. Oxford University Press, New York Tushnet M (2008) Weak Courts, Strong Rights Judicial Review and Social Welfare Rights in Comparative Constitutional Law. Princeton University Press, Princeton Valverde M (2012) Everyday law on the street: city governance in an age of diversity. The University of Chicago Press, Chicago Valverde M (2015) Chronotopes of law: jurisdiction, scale, and governance. Routledge, New York Watson V (2009) Seeing from the South: Refocusing Urban Planning on the Globe’s Central Urban Issues. Urban Studies 46(11):2259–2275 Yamin A, Parra-Vera O (2010) Judicial protection of the right to health in Colombia: From social demands to individual claims to public debates. Hastings International and Comparative Law Review 33(2):431–460

Natalia Angel-Cabo is an Assistant Professor at the Faculty of Law at Universidad de los Andes in Bogotá, Colombia. She has been Deputy Justice of the Colombian Constitutional Court, founder and former director of the Action Program for Equality and Social Inclusion—PAIIS, and consultant in various human rights projects. Her current research interests focus on the enforcement of social and economic rights and the various dimensions of urban inequality. Some of her publications include ‘Latin American Social Constitutionalism: Courts and Popular Participation’ (Routledge 2014, with D. Lovera-Parmo) and ‘Seeing human rights like a city: the prospects and perils of the urban turn’ (Elgar, 2021, with L. Sotomayor).

Chapter 9

Urban Governance and the Right to a Healthy City Marius Pieterse

Contents 9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 Health and the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Urban Local Government and the Determinants of Health . . . . . . . . . . . . . . . . . . . . . . . . 9.4 Rights-Based Urban Governance in Pursuit of Urban Health . . . . . . . . . . . . . . . . . . . . . . 9.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

185 187 189 191 194 195

9.1 Introduction The broad ambit of the right to health, which is typically understood to embrace ‘a wide range of socio-economic factors that promote conditions whereby people can lead a healthy life’ and to extend to ‘underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and sanitation, safe and healthy working conditions, and a healthy environment’,1 has long been a prime example of the interdependence of rights. For urban dwellers, these interrelated dimensions of the right to health are shaped by the tangible and intangible features of the urban environment—by the physical form and functioning of cities and by the myriad ways in which they are inhabited.2 There is therefore significant reciprocity between the right to health and the right to the city, both in the latter right’s theoretical sense as pertaining to the production 1 UN 2 See

CESCR 2000, para 4. Ettman et al. 2019, pp. 18–20; Herrick 2014, p. 557; Vlahov et al. 2007, pp. 19–20.

M. Pieterse (B) University of Witwatersrand, Johannesburg, South Africa e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_9

185

186

M. Pieterse

of urban space through habitation, appropriation and participation (in that produced urban space and individual and collective urban lifestyles are primary determinants of health),3 and in the ways in which it is normatively expressed. The World Charter for the Right to the City, for instance, conceives of the right to the city as a collective right of urban inhabitants to free self-determination and an adequate standard of living, and as including entitlements to ‘social security, public health, clean drinking water, energy, public transportation and other social services, to food, clothing, and adequate shelter…’.4 The European Charter for the Safeguarding of Human Rights in the City, meanwhile, determines that ‘the city is a collective space belonging to all who live in it’ and that its inhabitants are entitled to ‘conditions which allow their own political, social and ecological development but at the same time accepting a commitment to solidarity’.5 The Charter proceeds to list various rights related to the right to the city and to detail a range of measures related to their pursuit in an urban context. For the right to health, these include measures aimed at ensuring equal access to medical care, at protecting public health through ‘preventative and active intervention measures’, and at promoting health through urban planning and management.6 Other health-related rights elaborated include a right to ‘proper, safe and healthy’ housing and a right to a ‘healthy’ environment (understood to encompass obligations, for instance, to balance industrial development and environmental concerns, to prevent pollution and save energy, to promote recycling and guarantee waste disposal, and to ‘appreciate and care for’ the countryside surrounding the city).7 Similarly, the World Health Organisation (‘WHO’) and UN Habitat are among those emphasising close interconnections between UN Sustainable Development Goals (‘SDG’s) 3 (to ‘ensure healthy lives and promote wellbeing for all at all ages’) and 11 (to ‘make cities and human settlements inclusive, safe, resilient and sustainable’).8 Despite these interconnections, which also lie at the heart of the WHOendorsed ‘healthy cities’ movement,9 health has tended to be sidelined in urban sustainability and resilience discourse.10 Yet, health concerns reverberate throughout the UN’s New Urban Agenda, which describes the inhabitation and production of ‘just, safe, healthy, accessible, affordable, resilient and sustainable cities and human settlements’ as central to the vision of ‘cities for all’ (which it equates to the right to

3 For

the classic formulation of the right to the city, see Lefebvre 1996, pp. 173–174. On the links between the right to the city and the right to health, see Pieterse 2016, pp. 6–7; Skinner and Matsuda 2013, pp. 211–212. 4 World Charter for the Right to the City 2005, Article I. 5 European Charter for the Safeguarding of Human Rights in the City 2012, Article I. 6 Ibid., Article XVII. 7 Ibid., Articles XVI; XVIII. 8 WHO and UN Habitat 2016, pp. 14–17. See also Shanghai Consensus on Healthy Cities 2016; Tsouros 2019b, p. 388; Valencia et al. 2019, p. 5. 9 Tsouros 2019a, p. 295. 10 Herrick 2014, p. 557; Smit and Parnell 2012, p. 443.

9 Urban Governance and the Right to a Healthy City

187

the city),11 and expresses commitment to ‘fostering healthy societies by promoting access to adequate, inclusive and quality public services, a clean environment … and social infrastructure and facilities, including health-care services’.12 In its implementation framework for SDG11, UN Habitat remarks that ‘urbanisation is … a force, which, if effectively steered and deployed, can help the world to overcome some of its major global challenges, including poverty, inequality, environmental degradation, climate change, fragility and conflict’.13 Since these ‘major global challenges’ are all also determinants of health, the governance structures through which urbanisation is ‘steered and deployed’ are significant for the achievement not only of SDG11 and the right to the city, but also of the right to health. It is therefore unsurprising that both the New Urban Agenda and the WHO emphasise the importance of strengthening urban (and especially local) governance for the achievement of their interrelated goals.14 This chapter is concerned with urban governance in pursuit of the right to health. Section 9.2 pays closer attention to the ways in which health threats and challenges manifest in and are shaped by cities, before Sect. 9.3 alludes to how core functions of urban local government impact on the determinants and pursuit of health. Section 9.4 then overviews some relevant constitutional law dimensions of urban authority and autonomy, capacity and resources. Some concluding reflections follow in Sect. 9.5.

9.2 Health and the City The physical features and conditions of cities’ natural and built environments, as well as the ways in which these structure urban lifestyles, profoundly impact on the physical and mental health of their inhabitants. The spread of infectious diseases within a city is influenced, in the first instance, by the adequacy of home and living environments.15 For example, TB- and HIVprevalence in first world cities like London, New York and Tokyo tends to concentrate in poor and overcrowded neighbourhoods,16 while slum conditions in the severely overcrowded informal settlements of developing world cities are often pinpointed

11 UN

New Urban Agenda 2016, para 11. para 55. See also references to health in paras 2–3; 13–14; 34; 39; 119. 13 UN Habitat 2016, p. 4. 14 UN New Urban Agenda 2016, para 29; WHO and UN Habitat 2016, pp. 15; 49; 204. See also Aust and Du Plessis 2019, p. 5; United Cities and Local Government (‘UCLG’) 2018, p. 24. 15 Mendipanah et al. 2019, pp. 45–47; WHO and UN Habitat 2016, pp. 17–18; Vlahov et al. 2007, p. 19. 16 WHO and UN Habitat 2016, pp. 36–38; 74. 12 Ibid.,

188

M. Pieterse

as a major risk for the spread of infectious diseases.17 Predictably, these informal settlements are currently the focus of much COVID-19-related anxiety.18 Other drivers of infectious disease in cities include urban population demographics, density, labour dynamics and lifestyles, all of which have, for instance, been associated with the spread of HIV in urban areas.19 Meanwhile, urban climate dynamics and the city’s interaction with the biological environment are often associated with risks of vector-borne diseases such as Dengue, Malaria and Zika.20 Non-communicable diseases, meanwhile, are impacted not only by urban climate, built environment, air and water quality21 but also by features of cities’ built and social environments that encourage or discourage healthy lifestyles.22 For instance, residents of walking and-cycling friendly cities and neighbourhoods tend to be healthier than those in car-dominated or unsafe places,23 whereas the availability, affordability and distribution of both nutritious and unhealthy foods mirror the urban geography of diet-related lifestyle disease.24 Cities’ built form and transport profiles, alongside features of their social environment such as the prevalence of violent crime, further shape their injury-related health burden.25 Cities’ resource environments are as important determinants of health as their physical and social environments. In particular, differences in the quality and coverage of water, sanitation and solid waste management services strongly overlap with differential health outcomes both within and between cities.26 For instance, inequalities in access to water and sanitation across Delhi corresponds to discrepancies in health status across the city,27 whereas the near-legendary waste disposal and—collection problems in Naples and its neighbouring cities have been connected with discrepancies in cancer-incidence and childhood mortality across Italy.28 Similarly, intra- and inter-urban health status discrepancies are closely linked to the

17 Pieterse 2016, pp. 9–10; Smit and Parnell 2012, pp. 444–445; WHO and UN Habitat 2016, pp. 77;

171. 18 See

UN Habitat 2020.

19 See for instance Herrick 2014, pp. 564–565; Van Donk 2003, pp. 11–15; Vlahov et al. 2007, p. 19. 20 Ettman

et al. 2019, pp. 17–18; Smit and Parnell 2012, p. 446; WHO and UN Habitat 2016, pp. 17–18. 21 Ettman et al. 2019, p. 19; Herrick 2014, p. 563; Smit and Parnell 2012, pp. 445–446; Turok 2020, pp. 3–6; WHO and UN Habitat 2016, pp. 155–158. 22 Herrick 2014, pp. 564–565; WHO and UN Habitat 2016, pp. 80–83; Vlahov et al. 2007, pp. 19–20; Vlahov et al. 2019, p. 408. 23 Nieuwenhuijsen and Khreis 2019, pp. 53; 56. 24 Freudenberg et al. 2010, pp. 760–761; Wang and Otis 2019, pp. 148–149; WHO and UN Habitat 2016, pp. 92–109. 25 Herrick 2014, p. 560; Smit and Parnell 2012, p. 444; WHO and UN Habitat 2016, pp. 158–160; 189–199. 26 WHO and UN Habitat 2016, pp. 123–137; Vlahov et al. 2007, p. 19; Vlahov et al. 2019, p. 408. 27 Turok 2020, p. 4; WHO and UN Habitat 2016, p. 127. 28 Triassi et al. 2015.

9 Urban Governance and the Right to a Healthy City

189

availability, accessibility, acceptability, affordability and quality29 of primary and advanced health care services, as well as their distribution across cities and their surrounds.30 Cutting across all of these determinants are the socio-economic, political and structural features of contemporary urban life. The interrelated phenomena of inequality, poverty, social vulnerability and marginalisation are the most powerful determinants of health and play out in physical living conditions, environmental quality, quality of access to essential urban services, mobility, healthy lifestyles and access to health care.31 Within cities, vulnerable populations such as poor households, migrants, sex workers, drug users, the homeless and racial minorities face profound restrictions in attaining the essential capabilities for a healthy life, and accordingly bear a disproportionate burden of infectious and non-communicable disease, accident and injury.32

9.3 Urban Local Government and the Determinants of Health While their powers, functions and inclinations differ, local/municipal governments in cities around the world tend to bear at least some responsibility for many of the determinants of urban health. Most commonly, delivery of essential urban services such as water, electricity, sanitation and solid waste management tends to be municipal domain. The same is usually true for functions such as urban planning, land-use management and transport/traffic management, all of which directly shape the built environment in addition to the city’s size and density, while also determining its interactions with surrounding rural and/or natural environments. City-level governments are further often responsible for monitoring and enforcing adherence to air quality standards as well as building standards and hygiene. Some also play a role in, for instance, pollution control, public health-, housing- and health service provision, while many engage in different forms of health promotion.33 The ways in which cities fulfil their everyday urban management functions can directly and indirectly contribute to the realisation of various socio-economic rights, including the right to health. Local government is for instance well-positioned to 29 These are the ‘interrelated and essential’ elements of the right to health according to UN CESCR 2000, para 12. 30 Pieterse 2016, pp. 3–4; 10–14; WHO and UN Habitat 2016, pp. 30; 61; 138–139; Vlahov et al. 2007, p. 20; Vlahov et al. 2019, p. 408. 31 Basu 2019, pp. 37–39; Herrick 2014, pp. 560–562; Smit and Parnell 2012, pp. 444–445; Tsouros 2019b, p. 387; WHO and UN Habitat 2016, pp. 17–22; 30; 36–38; Vlahov et al. 2019, pp. 405–407. 32 Ettman et al. 2019, p. 20; Pieterse 2016, pp. 12–18; WHO and UN Habitat 2016, p. 68. 33 See Herrick 2014, p. 561; Kass et al. 2019, pp. 378–379; Mendipanah et al. 2019, pp. 48–49; Simkin and Seto 2019, pp. 262–268; Smit and Parnell 2012, p. 444; Tsouros 2019a, pp. 287–288; Vlahov et al. 2007, p. 21; UCLG 2018, pp. 71–81; WHO and UN Habitat 2016, pp. 49; 122; 137; 204.

190

M. Pieterse

promote the equitable distribution of health-conducive goods and services across the city and to enhance access thereto by members of vulnerable groups.34 For example, mobile sexual health clinics in Johannesburg are credited for reducing HIV prevalence under inner-city sex workers,35 while the WHO commends the city of Guangzhou for extending access to its free primary health clinics to all residents, including migrants.36 Meanwhile, the city of Paris’ recently unveiled policy intention to become a ‘15-minute city’ (with all essential services being within close walking or biking reach from any point in the city)37 is currently being touted as a model for health-conducive economic recovery in a post-COVID-19 urban environment.38 In the course of their everyday business, local governments are further usually in a good position to collect, communicate and use a wide array of data pertaining to urban systems, service structures and residents. Especially in the era of smart cities, such data can guide the fulfilment of many health-conducive governance functions and form the backbone of successful public health monitoring and surveillance, disease prevention and epidemic management systems.39 However, the ways in which cities generate and employ data shape not only urban health but also the enjoyment of civil liberties in the city. For instance, despite their clear usefulness in assisting with monitoring and arresting the spread of infectious diseases such as COVID-19, concerns have been expressed over the potential diminution of privacy and freedom rights occasioned by urban surveillance technologies.40 Furthermore, local government tends to be the level where most formal community participation mechanisms and processes operate. Since public health is inevitably a communal concern and is heavily impacted by the peculiarities of urban space, which is ultimately produced by people,41 these participation mechanisms are integral to the social urban infrastructure, both as a determinant of health and as part of the urban health system.42 Residents are best placed to determine and pursue joint health priorities, as illustrated by the experience in Brazil, where cities implementing participatory budgeting processes have tended towards allocating increased funding for health care services.43 Well-functioning community participation structures further build trust and social cohesion, which are integral to the functioning of public health systems.

34 UN

New Urban Agenda 2016, para 34; WHO and UN Habitat 2016, p. 146. 2016, pp. 16–17. 36 WHO and UN Habitat 2016, pp. 16; 65. 37 Martinez Euklidiadas 2020. 38 Sisson 2020. 39 Allam and Jones 2020, pp. 2–7; Allam et al. 2019, pp. 259–261; Trencher and Karvonen 2019, pp. 610–614. On the need for such data, see Gostin et al. 1999, pp. 81–85; WHO and UN Habitat 2016, pp. 45–49; 111. 40 Allam et al. 2019, p. 265. Trencher and Karvonen 2019, pp. 622–623. 41 WHO and UN Habitat 2016, p. 49. 42 UCLG 2018, p. 15; Valencia et al. 2019, pp. 14–15; Vlahov et al. 2007, p. 22. 43 Basu 2019, p. 41. 35 Pieterse

9 Urban Governance and the Right to a Healthy City

191

9.4 Rights-Based Urban Governance in Pursuit of Urban Health Cities around the world are governed through a myriad of constitutional and legal arrangements, involving different spheres of government alongside a range of other public and private entities.44 The extent of local government powers, functions, resources, capacities and responsibilities varies widely from system to system, depending on the local political climate and the extent to which constitutional systems reflect principles of federalism, decentralisation, devolution and subsidiarity.45 Perhaps because of the close connections between ‘traditional’ local governance functions and the objectives of socio-economic rights, it has been observed that domestic constitutional systems that recognise socio-economic rights tend also to devolve significant powers to local government.46 Clearly, much of what urban local governments do on a daily basis impact on health. If so inclined, city governments would therefore be well placed to actively govern in pursuit of achieving the right to health alongside interrelated dimensions of SDG11 and the right to the city.47 The more than hundred global mayors who signed the Shanghai Consensus on Healthy Cities in 2016, for instance, committed their cities to ‘integrate health as a core consideration’ in all policies; to ‘address all social, economic and environmental determinants of health’; to ‘promote strong community engagement’ and participation in health promotion; to ‘reorient health and social services towards equity’ and to ‘assess and monitor well-being, disease burden and determinants of health’.48 Cities’ typical close involvement in health protection further means that it is usually at local government level where public health restrictions on everyday activities are conceptualised or enforced. It is thus often city governments that are faced with the trade-offs between individual liberties and the right to health. The extent to which, and the ways in which, an urban local government can independently pursue achievement of health-conducive policy goals, and be held accountable for this pursuit, is shaped by its formal powers and functions as well as by the structures through which these are exercised and mediated. But urban autonomy extends beyond these formal structures, functions and powers. It is contested, negotiated and asserted through a range of actions on a variety of institutional stages and scales, and is expressed, at city-level, through city-leaders’ articulation of a local political ‘common good’ and their orienting of such spatial production powers as they do possess (in fact, if not always in law) towards the achievement thereof.49 44 Aust

and Du Plessis 2019, pp. 5–7; Frug and Barron 2006, pp. 5; 35; 61–62.

45 Frug and Barron 2006, p. 34; Oomen and Baumgärtel 2018, pp. 614–615; Smit and Parnell 2012,

p. 444. 46 Frug

and Barron 2006, p. 35. et al. 2019, p. 380. 48 Shanghai Consensus on Healthy Cities 2016. 49 Barber 2013, pp. 146–152; 170–171; 318–325; Bulkeley et al. 2018, pp. 704–706; 715–717; DeFilippis 1999, pp. 976–980; Pieterse 2019, pp. 120–124; Schragger 2016, pp. 78–81; 96–98. 47 Kass

192

M. Pieterse

An increasingly observed, progressive instance of deliberately steered urban autonomy is ‘human rights cities’, where the common good is locally defined and pursued with reference to international human rights law. Depending on domestic politics and the peculiarities of domestic rights-regimes, cities’ independent pursuit of human rights objectives, such as achievement of the right to health, may dovetail with, extend beyond, or even contradict their powers, functions and obligations under domestic law.50 Well-known examples of rights-based, health-related assertions of urban autonomy include American cities’ adherence to the Paris Climate Change Accord in the face of federal withdrawal from the treaty, as well as efforts by local governments around the world to include vulnerable populations within the ambit of local social protection and health care services, regardless of whether such inclusion curries favour with national governments.51 Cities’ independent pursuit of the right to health may, of course, cause tension with national rights-regimes. In response to COVID-19, for instance, some cities have restricted individual liberties more far-reachingly than has been the case nationally. For example, San Francisco restricted freedom of association by prohibiting public gatherings long before this was considered at a federal or state level,52 whereas Amsterdam and Rotterdam are currently enforcing face-mask requirements that do not apply elsewhere in the Netherlands.53 While reliance on the right to health may provide such measures with a degree of insulation against rights-based attack, it is conceivable that the prevailing national rights-regime may limit urban autonomy in this regard. For example, the more elaborate individual rights protections binding on the city of Toronto were reported to have strained its response to the SARS epidemic when compared to the more state-centred, less-rights conducive framework that enabled containment of the disease in the city of Singapore.54 Indeed, however much power urban local governments exercise officially or in practice, they do not govern all aspects of cities by themselves. National or regional governments usually exercise significant oversight or disciplinary powers over local government, and are often in charge of governing crucial urban functions and infrastructure, such as housing and transport.55 Specifically, in most places public health policy has traditionally been national government domain, with local government usually positioned as implementing agent of national policies, standards and protocols.56

50 Oomen

and Baumgärtel 2018, pp. 614–622; Oomen and Van den Berg 2014, pp. 161–162; 176– 182. 51 For discussion of these and other examples, see Pieterse 2019, p. 120; Oomen and Baumgärtel 2018, pp. 615–619; WHO and UN Habitat 2016, pp. 16; 65. 52 Berman 2020. 53 Pieters 2020. 54 Puzio 2004, pp. 190–192. 55 See Frug and Barron 2006, p. 11; Pieterse 2019, p. 123. 56 See Puzio 2004, pp. 190–192.

9 Urban Governance and the Right to a Healthy City

193

Accordingly, Barbara Oomen and Maurice Baumgärtel note that ‘the highly political question of the implementation of human rights norms is, in most cases, decisively influenced by the legal relations between national, sub-national and local entities’.57 Indeed, intergovernmental power tussles over the local pursuit of human rights or public health objectives are not uncommon, and may bedevil the local achievement human rights goals, also in relation to the right to health. This tends to be observed especially where cities’ understanding of their human rights obligations conflicts with the political sensibilities of higher-level governments, which may abuse their oversight- or pre-emption powers to quash local rights-based initiatives.58 For instance, at the time of writing, the American city of Atlanta was facing legal action by the Georgia state government, over Atlanta’s insistence to enforce a local rule requiring residents to wear face-masks in public, in order to curb transmission of COVID-19.59 On the other hand, pre-emption or oversight powers might serve to hold city governments accountable for the adverse human rights impact of their pursuit of public health objectives. In Cape Town, for instance, the South African Human Rights Commission recently intervened to put a stop to city measures confining homeless people to ‘relocation camps’ during the national COVID-19 ‘lockdown’.60 In addition to progressive intent and a commitment to human rights at local level, effective pursuit of the right to health at city-level clearly requires well-functioning, cooperative and responsive intergovernmental relations structures and platforms.61 Given that health problems often transcend municipal boundaries, which don’t always correspond to physical urban conurbations, these structures and platforms ought, where appropriate, also to facilitate interaction with neighbouring municipalities.62 Since many non-governmental actors, such as private health care institutions, civil society organisations, private companies and universities, play an important role in both day-to-day urban governance and the functioning of local health systems, their participation in some of these processes may also be essential.63 Moreover, health concerns cut across multiple municipal sectors and line functions, meaning that urban pursuit of the right to health is frequently complicated by fragmentation, interdepartmental conflict and poor communication within local government. Integrating and mainstreaming the right to health across various policies

57 Oomen

and Baumgärtel 2018, p. 627. Kass et al. 2019, p. 381; Pieterse 2019, pp. 123–124. 59 See https://www.bbc.com/news/world-us-canada-53429800. For other health-related examples of such conflict, see Freudenberg et al. 2010, p. 760; Kass et al. 2019, pp. 381–382. 60 Mahomedy et al. 2020. 61 UCLG 2018, p. 28; UN Habitat 2016, p. 5; Valencia et al. 2019, p. 12. 62 Valencia et al. 2019, pp. 8–9. 63 Kass et al. 2019, p. 381; Puzio 2004, p. 180; Tsouros 2019a, p. 289; Valencia et al. 2019, pp. 11–12; WHO and UN Habitat 2016, p. 70. 58 See

194

M. Pieterse

and departments thus also require consistent political will, and effective cooperative government structures, between the various constituent departments of a single city.64 Finally, capacity and resource shortages at local government level, often the result of incomplete or poorly aligned devolution, can bedevil the actualisation of even the most progressive policy-intent, and as such pose a real threat to urban resilience and sustainability.65 This extends to legal and policy capacity. For instance, public health laws (at local and other levels) are frequently antiquated and out of step with modern urban governance capacities and demands, not least of which is the need to respect and fulfil human rights.66 Yet, it has been remarked that ‘a frequent problem in cities is more often one of not using adequately the tools and resources that exist than a lack of usable solutions’.67 Since even the most mundane urban management functions impact enjoyment of the right to health, even sparsely resourced cities can accomplish much through the conscious orientation and steering of those human, financial and legal resources that already are at their disposal.

9.5 Conclusion Rather than thinking in terms of a choice between empowerment or disempowerment, the international community should focus on the kinds of cities it is and should be nurturing through its efforts to empower or disempower local governments.68

This chapter has shown that the ways in which cities are governed matters for achievement of the right to health, and that this achievement is inextricably linked to the pursuit of urban inclusivity, safety, resilience and sustainability. The ‘healthy cities’ and ‘human rights cities’ movements, together with associated collective local government action at various scales, present invaluable opportunities to reorient urban governance and local government law towards the participatory, bottom-up pursuit of the right to health.69 The increasing domestic and international clout of city governments can and should be harnessed towards simultaneous achievement of the right to health, the right to the city and the SDGs. City governments must be appropriately empowered and equipped, and held accountable for, their role in these pursuits.70 Constitutional law, local government law and public health law are jointly implicated in this mission. 64 Herrick

2014, p. 565; Kass et al. 2019, p. 380; Tsouros 2019b, p. 390; UN Habitat 2016, p. 5; Valencia et al. 2019, pp. 11–12. 65 See Herrick 2014, p. 561; Tsouros 2019b, p. 387; UN Habitat 2016, p. 5. 66 See Gostin et al. 1999, pp. 102–118; Puzio 2004, pp. 179–180. 67 WHO and UN Habitat 2016, p. 111. 68 Frug and Barron 2006, p. 61. 69 See also Smit and Parnell 2012, p. 447. 70 See UN Habitat 2016, p. 5.

9 Urban Governance and the Right to a Healthy City

195

At a time when climate change profoundly threatens human health and survival,71 the global community is increasingly realising that good urban governance is central to urban sustainability and resilience. Indeed, urban governance is, in and of itself, a crucial determinant of urban health.72 By explicitly orienting and consciously applying their everyday regulatory powers and functions towards health and equity, by integrating health promotion across their sectors and activities, by strengthening community participation in health promotion and by empowering their residents to live healthy lives and make healthy choices, cities can greatly contribute to making the right to health real.73

References Allam Z, Jones D S (2020) On the Coronavirus (COVID-19) Outbreak and the Smart City Network: Universal Data Sharing Standards Coupled with Artificial Intelligence to Benefit Urban Health Monitoring and Management. Healthcare 8(1):46–54 Allam Z, Tegally H, Thondoo M (2019) Redefining the Use of Big Data in Urban Health for Increased Liveability in Smart Cities. Smart Cities 2:259–268 Aust H, Du Plessis A (2019) Introduction: The Globalisation of Urban Governance – Legal Perspectives on Sustainable Development Goal 11. In: Aust H, Du Plessis A (eds) The Globalisation of Urban Governance: Legal Perspectives on Sustainable Development Goal 11. Routledge, London/New York, pp 3–16 Barber B R (2013) If Mayors Ruled the World: Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Basu S (2019) Reducing Poverty, Improving Health. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 37–43 Berman R (2020) The City that has Flattened the Coronavirus Curve. The Atlantic 12 April 2020, available through www.theatlantic.com Bulkeley H, Luque-Ayala A, McFarlane C, MacLeod G (2018) Enhancing Urban Autonomy: Towards a New Political Project for Cities. Urban Studies 55:702–719 DeFilippis J (1999) Alternatives to the ‘New Urban Politics’: Finding Locality and Autonomy in Local Economic Development. Political Geography 18:973–980 Ettman C K, Vlahov D, Galea S (2019) Why Cities and Health? Cities as Determinants of Health. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 15–26 European Charter for the Safeguarding of Human Rights in the City (2012) available through https:// uclg-cisdp.org/en/right-to-the-city/european-charter Freudenberg N, Libman K, O’Keefe E (2010) A Tale of Two ObesCities: The Role of Municipal Governance in Reducing Childhood Obesity in New York City and London. Journal of Urban Health 87:755–768 Frug G E, Barron D J (2006) International Local Government Law. The Urban Lawyer 38:1–62 Gostin L O, Burris S, Lazzarini Z (1999) The Law and the Public’s Heath: A Study of Infectious Disease Law in the United States. Columbia Law Review 99:59–128

71 Smit

and Parnell 2012, pp. 443; 446–467.

72 Ettman et al. 2019, p. 18; Herrick 2014, p. 563; Tsouros 2019b, pp. 388–389; UCLG 2018, p. 15. 73 Herrick 2014, pp. 464–465; Kass et al. 2019, pp. 381–382; Tsouros 2019a, pp. 287–288; Tsouros

2019b, pp. 387–389; WHO and UN Habitat 2016, pp. 19–20; 206–209; 212–213.

196

M. Pieterse

Herrick C (2014) Healthy Cities of/from the South. In: Parnell S, Oldfield S (eds) The Routledge Handbook on Cities of the Global South (paperback edn. 2017). Routledge, London/New York, pp 556–568 Kass D, Matte T, Karpati A (2019) City Health Departments: Leading Urban Public Health Practice. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 377–385 Lefebvre H (1996) Writings on Cities (Kofman E, Lebas E (translators)). Blackwell Publishing, Oxford Mahomedy S, Boggenpoel Z-Z, van der Sijde E, Tlale M (2020) The Strandfontein Relocation Camp Highlights how the Rights of the Homeless are being Violated. The Daily Maverick 5 July 2020, available at https://www.dailymaverick.co.za/article/2020-07-05-the-strandfontein-reloca tion-camp-highlights-how-the-rights-of-the-homeless-are-being-violated/ Martinez Euklidiadas M (2020) Paris wants to Become a ‘15-minute City’. Smarcitylab.com available at https://www.smartcitylab.com/blog/governance-finance/paris-15-minute-city/ Mendipanah R, Eisenberg A K, Schulz A J (2019) Housing. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 44–51 Nieuwenhuijsen M, Khreis H (2019) Transport and Health. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 52–58 Oomen B, Baumgärtel M (2018) Frontier Cities: The Rise of Local Authorities as an Opportunity for International Human Rights Law. European Journal of International Law 29:607–630 Oomen B, Van den Berg E (2014) Human Rights Cities: Urban Actors as Pragmatic Idealistic Human Rights Users. Human Rights & International Legal Discourse 8:160–185 Pieters J (2020) Face Masks Mandatory in Amsterdam, Rotterdam Areas from 9 am, No Fines on Day 1. NL Times 5 August 2020, available through https://nltimes.nl Pieterse M (2016) Geography, Marginalisation and the Performance of the Right to have Access to Health Care Services in Johannesburg. Law, Democracy & Development 20:1–19 Pieterse M (2019) Urban Autonomy in South African Intergovernmental Relations Jurisprudence. ICL Journal 13:119–146 Puzio D (2004) An Overview of Public Health in the New Millennium: Individual Liberty vs Public Safety. Journal of Law and Health 18:176–198 Schragger R C (2016) City Power: Urban Governance in a Global Age. Oxford University Press, Oxford Shanghai Consensus for Healthy Cities (2016) adopted at the 9th Global Conference on Health Promotion, available through http://www.who.int/healthpromotion/conferences/9gchp Simkin R, Seto K C (2019) Urban Land Use and Health. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 262–271 Sisson P (2020) How the ‘15-minute City’ Can Help Post-Pandemic Recovery. Bloomberg City Lab. Available at https://www.bloomberg.com/news/articles/2020-07-15/mayors-tout-the-15-minutecity-as-covid-recovery Skinner E, Matsuda J R (2013) Right to a Healthy City? Examining the Relationship between Urban Space and Health Inequity by Aboriginal Youth Artist-activists in Winnipeg. Social Science & Medicine 91:210–218 Smit W, Parnell S (2012) Urban Sustainability and Urban Health: An African Perspective. Current Opinion in Environmental Sustainability 4:443–450 Trencher G, Karvonen A (2019) Stretching ‘Smart’: Advancing Health and Well-being through the Smart City Agenda. Local Environment 24:610–627 Triassi M, Alfano R, Illario M, Nardone A, Caporale O, Montuori P (2015) Environmental Pollution from Illegal Waste Disposal and Health Effects: A Review on the ‘Triangle of Death’. International Journal of Environmental Research and Public Health 12:1216–1236 Tsouros A D (2019a) The Healthy Cities Movement. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 285–292 Tsouros A D (2019b) City Leadership for Health, Equity, and Sustainable Development. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 386–393

9 Urban Governance and the Right to a Healthy City

197

Turok I (2020) Delhi’s Public Health Crisis and the Neglect of Urbanisation. Local Economy 35:3–6 United Cities and Local Government (UCLG) (2018) Towards Localization of the SDGs. UCLG, Barcelona UN Committee on Economic, Social and Cultural Rights (UN CESCR) (2000) General Comment No 14: The Right to the Highest Attainable Standard of Health (article 12 of the International Covenant on Economic Social and Cultural Rights). UN Habitat (2016) Sustainable Cities and Communities: SDG Goal 11 Monitoring Framework. UN Habitat (2020) Key Messages on COVID-19 and Informal Settlements. Available at https://unhabitat.org/key-messages-on-covid-19-and-informal-settlements United Nations New Urban Agenda (2016) A/RES/71/256* Valencia S C et al (2019) Adapting the Sustainable Development Goals and the New Urban Agenda to the City Level: Initial Reflections from a Comparative Research Project. International Journal of Urban Sustainable Development 11:4–23 Van Donk M (2003) Planning for a ‘Positive’ Future: HIV/AIDS as an Integral Component of Urban Development in South Africa. Urban Forum 14:3–25 Vlahov D, Ettman C K, Galea S (2019) Urban Health: Looking to the Future. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 404–410 Vlahov D et al (2007) Urban as a Determinant of Health. Journal of Urban Health 84: i16–i25 Wang M L, Otis M (2019) Improving Access to Healthy Food in Cities. In: Galea S, Ettman C K, Vlahov D (eds) Urban Health. Oxford University Press, Oxford, pp 148–155 World Charter for the Right to the City (2005) available through https://www.uclg-cisdp.org/ World Health Organisation (WHO), UN Habitat (2016) Global Report on Urban Health: Equitable, Healthier Cities for Sustainable Development. WHO Press, Geneva

Marius Pieterse is a Professor of Law at the University of the Witwatersrand in Johannesburg, South Africa. He teaches constitutional and human rights law and is specifically interested in how urban governance and local government law intersect with the realisation of various socioeconomic rights. Alongside various journal publications, Marius is the author of Rights-based Litigation, Urban Governance and Social Justice in South Africa: The Right to Joburg (Routledge, 2017) and Can Rights Cure? The Impact of Human Rights Litigation on South Africa’s Health System (Pretoria University Law Press, 2014).

Chapter 10

Topical Storm Approaching: Regulating Public Assemblies and Responding to Online Falsehoods in the City State of Singapore Jack Tsen-Ta Lee

Contents 10.1 Conceptual Frameworks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1.1 The (Digital) Right to the City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1.2 Freedom of Assembly and Expression . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Regulating Public Assemblies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 The Public Order Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 The Constitutionality of Permit Schemes Regulating Public Assemblies . . . . . . 10.2.3 Rethinking Public Assemblies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3 Dealing with Online Falsehoods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.1 Introduction to the Protection from Online Falsehoods and Manipulation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3.2 Potential Constitutional Challenges to the POFMA . . . . . . . . . . . . . . . . . . . . . . . . 10.3.3 Rethinking Online Falsehoods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.4 Concluding Thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

201 201 206 208 208 210 213 215 215 221 227 229 232

Abstract The ‘right to the city’ is a right of the city’s denizens to have a say in shaping and using their urban environment. Recognizing the city as the locus of technological development and innovation, scholars have also begun theorizing about a ‘digital right to the city’, the right of citizens to play an active role in managing the way they create and control the information relating to how they experience and use the city. Against this backdrop, this chapter considers two aspects of Singapore law—the Public Order Act (Cap 257A, 2012 Rev Ed) and the Protection from Online Falsehoods and Manipulation Act 2019 (No 18 of 2019)—that impinge upon the (digital) right to the city, and the more traditional constitutional rights to free speech and assembly. It seeks to assess the extent to which these civil liberties might impact upon the way the laws are interpreted and applied, and also considers whether there J. T.-T. Lee (B) Public and International Law Committee, Law Society of Singapore, Singapore, Singapore e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_10

199

200

J. T.-T. Lee

are ways in which aspects of the laws might be reimagined to give better effect to the right to the city in both its forms. Keywords Digital right to the city · Freedom of assembly · Freedom of speech · Protection from Online Falsehoods and Manipulation Act (Singapore) · Public Order Act (Singapore) · Right to the city Henri Lefebvre and David Harvey conceptualize the ‘right to the city’ as a right of the city’s denizens to have a say in shaping and using their urban environment. Thus, Lefebvre has spoken of ‘the right of users to make known their ideas on the space and time of their activities in the urban area’ and ‘the right to use the centre, a privileged place, instead of being dispersed and stuck in ghettos’.1 Recognizing the city as the locus of technological development and innovation, scholars have also begun theorizing about a ‘digital right to the city’, the right of citizens to play an active role in managing the way they create and control the information relating to how they experience and use the city. Despite the use of the word right, the Singapore Constitution2 has been interpreted by the courts in a manner making it unlikely that the right to the city will be recognized as an enforceable constitutional right. While the Constitution does expressly guarantee the more traditional rights to free expression and assembly, the limited way they are phrased and the courts’ current approach of applying them deferentially in the legislature’s favour suggests that laws restricting these fundamental liberties are unlikely to be found unconstitutional. It will be submitted that the rights to free speech and assembly should be interpreted in a way that provides them with more teeth. Moreover, the right to the city has a discursive dimension and may be used to foreground citizens’ interests when assessing restrictions on assembly and speech. Against this backdrop, this chapter considers two aspects of Singapore law. The first is the Public Order Act,3 which requires a permit to be obtained from the Commissioner of Police for the holding of cause-based public assemblies and processions, except in limited situations. A general policy has been articulated of not issuing permits for events to be held in open-air places, except in a designated area known as ‘Speakers’ Corner’ in a public park that is away from the central business district and centres of authority such as the Parliament and the courts. The second aspect is the Protection from Online Falsehoods and Manipulation Act 2019,4 which came into force on 2 October 2019. The Act criminalizes the communication of false statements of fact on the internet for a number of reasons, including if this is likely to ‘incite feelings of enmity, hatred or ill-will between different groups of persons’, or ‘diminish public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an 1 Lefebvre

1996, p. 34. of the Republic of Singapore (1985 Rev Ed, 1999 Rep) (‘Constitution’). 3 Cap 257A, 2012 Rev Ed (‘POA’). 4 No 18 of 2019 (‘POFMA’). 2 Constitution

10 Topical Storm Approaching: Regulating Public Assemblies and …

201

Organ of State, a statutory board, or part of the Government, an Organ of State or a statutory board’.5 Any Government minister is able to procure the issuance of directions requiring individuals, internet intermediaries and provides of mass media services to publish corrections, cease communication, or block access to false statements if the minister is of the opinion that it is in the public interest to do so. This chapter begins by examining, in Sect. 10.1, the (digital) right to the city and its relation to the Singapore Constitution, as well as how the constitutional free speech and assembly rights have been interpreted by the courts. Sections 10.2 and 10.3 then seek to assess the extent to which the statutes in question impinge on the rights to free speech and free assembly, and how these civil liberties might impact upon the way the statutes are interpreted and applied. We will also consider whether there are ways in which the laws might be reimagined to give effect to the right to the city in both its forms. Section 10.4 contains some concluding thoughts.

10.1 Conceptual Frameworks 10.1.1 The (Digital) Right to the City 10.1.1.1

The Traditional Conception

The ‘right to the city’ was first conceptualized by Henri Lefebvre in his 1968 work Le droit à la ville.6 As Edward Soja has noted, Lefebvre’s concern was that urban life produces unequal power relations, which eventually lead to unjust distributions of social resources in the city. Hence, a right to the city is needed to correct this imbalance by providing disadvantaged city dwellers with a basis to call for ‘greater access to social power and valued resources’, the aim being to ‘gain greater control over the forces shaping urban space, in other words to reclaim democracy from those who have been using it to maintain their advantaged positions’.7 The primary way the right to the city as a concept has been employed is as a dialogic tool to highlight how control over financial resources and urban space by governments and wealthy private individuals and enterprises can lead to inequities. For example, the power wielded by these political and economic elites can lead to desirable areas of a city being ‘colonized’ by private developers for the use of affluent residents and tourists, with people on low incomes being relegated to banlieues, favelas or ghettos which are poorly maintained and ill supplied by public services such as police patrols and transportation.8 Thus, according to David Harvey, adopting the right to the city ‘as both working slogan and political ideal […] focuses on the question of who 5 Ibid.,

ss 7(1)(b)(v) and (vi). 1968. 7 Soja 2010, p. 96, summarized in Lee 2016b, pp. 214–215. 8 See, for example, Harvey 2008, pp. 38–39. 6 Lefebvre

202

J. T.-T. Lee

commands the necessary connection between urbanization and surplus production and use’;9 the right is vindicated when democratic management over the production and utilization of capital surpluses is established.10 More importantly for present purposes, though, the right to the city also applies to the use of space in the city by individuals for their activities. Lefebvre wrote:11 The right to the city […] should modify, concretize and make more practical the rights of the citizen as an urban dweller (citadin) and user of multiple services. It would affirm, on the one hand, the right of users to make known their ideas on the space and time of their activities in the urban area; it would also cover the right to use of the centre, a privileged place, instead of being dispersed and stuck into ghettos (for workers, immigrants, the “marginal” and even for the “privileged”).

The right may thus be asserted as an argument for according to urban dwellers an equal say over how prominent parts of the city may be used for free assembly and expression.

10.1.1.2

From the Physical to the Digital

Modern urban life has been transformed by the development of information and communication technology. As Mark Graham and Joe Shaw have put it: ‘Contemporary cities are much more than bricks and mortar; streets and pipes. They are also their digital presences—abstract presences which can reproduce and change our material reality.’12 The way we physically experience the city is now greatly influenced by technology. For instance, the choices we make about what to do, where to eat, and how we travel from place to place are now frequently guided by internet-connected fooddelivery, map and ride-sharing apps.13 This can have a profound effect, tantamount to ‘reshap[ing] our cities’ by ‘privileging some people, places, and organizations and sidelining others’.14 Businesses which can afford to pay for advertisements and higher rankings are favoured. Indeed, our own decisions may give higher priority to certain events and places through ratings that we give on websites, and even our mere presence there which has been silently recorded on smart phones and smart watches. In the drive to create ‘smart cities’, governments are also working with technology companies to install ever more sensitive cameras and sensors in urban public areas. In Singapore in 2019, the Government started conducting a trial of ‘smart lamp posts’ under its Smart Nation initiative. Such lamp posts will be capable of collecting ‘a wide range of citizen surveillance data’ at resolutions high enough to enable 9 Ibid.,

p. 40. p. 37. 11 Lefebvre 1996, p. 34. 12 Graham and Shaw 2017; see also Shaw and Graham 2017a, p. 4: ‘Cities have become more than bricks and mortar: they are their digital presences, and they are constantly performed and reproduced as such.’ 13 Shaw and Graham 2017b, p. 910. 14 Graham and Shaw 2017. 10 Ibid.,

10 Topical Storm Approaching: Regulating Public Assemblies and …

203

computers with artificial intelligence capabilities to analyse, in real time, faces ‘down to race, gender and age’, and to ‘detect, classify and record objects such as backpacks, personal mobility devices, bicycles, and car models and licence plate numbers’.15 Similar lamp posts in Hong Kong have been torn down by protestors, apparently concerned that the posts can be used for government surveillance.16 The Deputy Secretary of Singapore’s Smart Nation and Digital Government Office has tried to allay such fears, saying that there are ‘no plans to use it [smart lamp posts] to probe into how people live their lives. […] The whole point of the sensor platform is to look at improving services, look at how to run the city and operate the city better and how to plan the city better. We have no plans to do moral policing or things like that.’17 In New York City, more than a thousand LinkNYC kiosks have been installed, providing free Wi-Fi, local telephone calls and USB charging points for mobile devices. Once users connect their devices to the Wi-Fi network, it records their locations whenever they come within 150 feet of any kiosk. Even if people do not use the Wi-Fi service, they are recorded by cameras and sensors mounted on the kiosks when they pass by. Ben Green has raised the concern that private companies which operate such smart technologies may sell or share the data collected ‘without the public’s knowledge or consent’, which might then be ‘used to exclude people from credit, jobs, housing and health care in ways that circumvent anti-discrimination laws’.18 Thus, where in the past the use of the city was dominated by planners, developers, and landlords, these days people’s experiences of the city are also heavily mediated by multinational technology corporations like Alphabet Inc., the owner of the Google search engine.19 While the focus tends to be on large private sector players, it should not be overlooked that government regulators continue to control the flow of digital information through laws and policies—a point relevant to our discussion later on. Graham and Shaw point out that ‘[i]f our cities are now digital as well as material, then the struggle for more egalitarian rights to the city must move beyond a sole focus on material spaces and into the realm of the digital’.20 It is necessary to ‘critically examine the power relations around conduits of digital information as it becomes urban: the urbanization of information’.21 Green gives examples of how some municipalities in Spain and the United States have sought to ‘democratize the development and control of smart city technology’ by ‘ground[ing] their decisions 15 Tham

2018. 2019. 17 (13 May 2018, updated 14 May 2018) ‘Smart Lamp Posts’ in Singapore Won’t Shine Light into People’s Lives. Channel NewsAsia https://www.channelnewsasia.com/news/singap ore/smart-lampposts-singapore-wont-shine-light-peoples-lives-10229804 (accessed 14 November 2019; archived at https://web.archive.org/web/20191113073715/https://www.channelnewsasia. com/news/singapore/smart-lampposts-singapore-wont-shine-light-peoples-lives-10229804). 18 Green 2019. 19 Shaw and Graham 2017b, pp. 908 and 921. 20 Shaw and Graham 2017a, p. 5. 21 Shaw and Graham 2017b, p. 909. 16 Cheung

204

J. T.-T. Lee

about technology in democratic deliberation that allows the public to have a voice in shaping its development, acquisition and use’.22 The methods of achieving this have included releasing draft privacy policies for discussion, holding public meetings, requiring specific government approvals before acquiring surveillance equipment, and imposing privacy requirements on companies operating smart technology.23 It is clear that the concept of the right to the city needs to be extended to a digital right to the city—the right of people to participate in the creation and control of the information that essentially constitutes how the city is experienced and used. This derives from Lefebvre’s idea of autogestion généralisée (generalized selfmanagement). The original understanding of autogestion was of workers managing a factory themselves without the need for professional managers and owners. By analogy, and in parallel with the traditional right to the city, the digital right to the city should be regarded as ‘an ongoing project whereby we declare our intention to become active and manage our affairs for ourselves, and then we set about doing so continually, resolutely, on into the future.’24

10.1.1.3

The Right to the City and the Singapore Constitution

In David Harvey’s view, the right to the city—‘[t]he freedom to make and remake our cities and ourselves is […] one of the most precious yet most neglected of our human rights’.25 Nonetheless, barring rare examples such as Brazil’s 2001 City Statute26 which has been regarded as legally recognizing the right to the city as a collective right,27 one would struggle to find any mention of this right in most national constitutions and human rights statutes.

22 Green

2019.

23 Ibid. 24 Purcell

2017, p. 30; see also Shaw and Graham 2017b, pp. 919–920 and 922. 2008, p. 23. 26 Federal Law No 10.257 of 10 July 2001, translated into English and annotated in Barros et al. 2010. For a brief commentary, see Fernandes 2007, especially pp. 211–215. 27 Fernandes 2007, p. 202. The City Statute was enacted to give effect to Title VII, Chapter II, of the Constitution of the Federative Republic of Brazil enacted on 5 October 1988 which deals with urban policy; for the text of this Chapter, see Constitution of the Federative Republic of Brazil: Constitutional Text Enacted on October 5, 1988, with the Alterations Established by Revision Constitutional Amendments 1, 1994 through 6, 1994, and by Constitutional Amendments 1, 1992 through 101, 2019. STF, Secretaria de Documentação, Brasília, pp. 151–152. For example, Article 2 of the City Statute states: ‘The purpose of urban policy is to give order to the full development of the social functions of the city and of urban property, based on the following general guidelines: […] II—democratic administration by means of participation by the population and the representative associations of the various sectors of the community in the formulation, execution and monitoring of urban development projects, plans and programmes; III—cooperation between governments, the private sector and other sectors of society in the urbanisation process, to satisfy the social interest; […]’: Barros et al. 2010, p. 92. 25 Harvey

10 Topical Storm Approaching: Regulating Public Assemblies and …

205

The fundamental liberties provisions in the Singapore Constitution,28 which date from 1965,29 are no exception. Furthermore, at present it seems unlikely that the courts would be inclined to imply such a right into one of these provisions. Article 9(1) would probably be the strongest candidate in this regard. It states: No person shall be deprived of his life or personal liberty save in accordance with law.

One could seek to argue, for example, that the word life should be understood broadly, not as merely meaning the absence of death but incorporating ‘all those facets that are an integral part of life itself and those matters which go to form the quality of life’,30 or a ‘right to live with human dignity’ which includes ‘all those rights and aspects of life which would go to make a man’s life complete and worth living’.31 Thus, the concept of ‘life’ in Article 9(1) would encompass the right to the city, and depriving a person of that right in a manner that was not in accordance with law32 would violate that fundamental liberty. However, the Court of Appeal resisted such an approach to the interpretation of Article 9(1) in Yong Vui Kong v Public Prosecutor.33 In that case, the appellant had been sentenced to, among other things, 15 strokes of the cane—corporal punishment—for drug trafficking offences. He argued that the caning sentence was an impermissible deprivation of his right to life or personal liberty in contravention of Article 9(1), because it amounted to torture and inhuman punishment which should be read into the Constitution as an unenumerated right.34 The appellant submitted that such a right formed part of the basic structure of the Constitution, which for present purposes we need not consider in detail except to say that it was not accepted by the Court.35 More to the point was the Court’s opinion that apart from that submission, the appellant had not provided any other legal basis for a prohibition against torture to be read into the Constitution apart from saying it was a part of ‘natural law’. The Court said:36 28 Above,

n 2.

29 Singapore left the Federation of Malaysia and became an independent republic on 9 August 1965. 30 Court of Appeal (Malaysia), Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan, judgment of

22 January 1996, [1996] 1 MLJ 261 at p. 288, interpreting the Federal Constitution of Malaysia, Article 5(1), which is identical to the Singapore Constitution, id, Article 9(1), as the latter was adopted from the former when Singapore became an independent republic: see the Republic of Singapore Independence Act 1965 (No 9 of 1965, 1985 Rev Ed), s 6(1). 31 Supreme Court of India, Samatha v State of Andhra Pradesh, judgment of 11 July 1997, AIR 1997 SC 3297, (1997) Supp 2 SCR 305 at p. 396, interpreting the Indian Constitution, Article 21 (‘No person shall be deprived of his life or personal liberty except according to procedure established by law.’). See further at Lee 2016a, pp. 50–59. 32 On the meaning of the phrase save in accordance with law in the Constitution, above, n 2, Article 9(1), see Lee 2016a, pp. 60–66. 33 Court of Appeal (Singapore), Yong Vui Kong v Public Prosecutor, judgment of 4 March 2015, [2015] 2 SLR [Singapore Law Reports] 1129. 34 Id at p. 1158, para 68. 35 Id at pp. 1158–1160, paras 68–72. 36 Id at p. 1160, para 73 (emphasis original), and at p. 1165, para 75.

206

J. T.-T. Lee

In our judgment, where a right cannot be found in the Constitution (whether expressly or by necessary implication), the courts do not have the power to create such a right out of whole cloth simply because they consider it to be desirable or perhaps to put in terms that might appear more principled, to be part of natural law. […] Further, reading unenumerated rights into the Constitution would entail judges sitting as a super-legislature and enacting their personal views of what is just and desirable into law, which is not only undemocratic but also antithetical to the rule of law. In our judgment therefore, there is no basis for reading rights into the Constitution on the basis of natural law, and we reject the Appellant’s arguments under this rubric.

The Court’s approach, evidenced in the passages quoted above, indicates there does not seem to be much reasonable prospect of a right to the city to be read into the Constitution and enforced as a fundamental liberty, at least in the foreseeable future. This does not, however, detract from its power as a discursive metaphor, a way of highlighting the interests of citizens in debates about the regulation of speech and assembly. Recognition of citizens’ right to the city contributes to a participatory understanding of representative democracy, one in which citizens take part in political policymaking37 rather than merely voting for political representatives at regular intervals and adopting a passive stance towards governance in between.38 The Government has increasingly encouraged such public participation, signalling a more consultative approach.39 The right to the city thus counsels the Government to allow for greater self-regulation rather than constantly resorting to top-down control. On the other hand, citizens should acknowledge that self-regulation entails the need to exercise freedom responsibly.

10.1.2 Freedom of Assembly and Expression Freedom of speech and expression, and freedom of assembly, are expressed in Article 14 of the Constitution in the following terms: (1)

(2)

Subject to clauses (2) and (3)— (a)

every citizen of Singapore has the right to freedom of speech and expression;

(b)

all citizens of Singapore have the right to assemble peaceably and without arms; […]

Parliament may by law impose— (a)

37 Patmore

on the rights conferred by clause (1)(a), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, public order or morality and restrictions designed to protect the privileges of Parliament or to provide against contempt of court, defamation or incitement to any offence;

1998, pp. 101–102. 2012, p. 200, para 03.105. 39 See the text accompanying nn 186–187, below. 38 Thio

10 Topical Storm Approaching: Regulating Public Assemblies and … (b)

207

on the right conferred by clause (1)(b), such restrictions as it considers necessary or expedient in the interest of the security of Singapore or any part thereof or public order; […]

A number of features about these rights should be noted. First, only Singapore citizens enjoy the rights to free speech and assembly; non-citizens only enjoy these rights to the extent that they are conferred by the common law40 which, of course, may be abridged by statute. Secondly, the rights guaranteed by Articles 14(1)(a) and (b) are not absolute, but may be restricted on the grounds set out in Articles 14(2)(a) and (b). However, unlike the European Convention on Human Rights,41 there is no requirement that any restrictions shall be ‘necessary in a democratic society’,42 a phrase which has been interpreted to require that courts apply a proportionality analysis.43 Instead, Parliament is entitled to impose ‘such restrictions as it considers necessary or expedient’.44 In Chee Siok Chin v Minister for Home Affairs,45 the High Court contrasted the phrase with Article 19(3) of the Indian Constitution which refers to ‘reasonable restrictions’,46 and interpreted the phrase in the Singapore Constitution as follows:47 It bears emphasis that the phrase “necessary or expedient” confers on Parliament an extremely wide discretionary power and remit that permits a multifarious and multifaceted approach towards achieving any of the purposes specified in Article 14(2) of the Constitution. […] [T ]here can be no questioning of whether the legislation is “reasonable”. […] All that needs to be established is a nexus between the object of the impugned law and one of the permissible subjects stipulated in Article 14(2) of the Constitution. In relation to any restriction impugned for unconstitutionality on this test, the Government must satisfy the court that there is a factual basis on which Parliament has considered it “necessary or expedient” to do so […] A generous and not a pedantic interpretation should be adopted […].

The Court thus took the view that the restrictions upon free speech and assembly should be interpreted generously in the government’s favour, rather than following the advice of the Privy Council in Ong Ah Chuan v Public Prosecutor,48 when it was Singapore’s final appellate court, to give the fundamental liberties ‘a generous interpretation, avoiding what has been called ‘the austerity of tabulated legalism’,

40 Court of Appeal (Singapore), Review Publishing Co Ltd v Lee Hsien Loong, judgment of 7 October

2009, [2010] 1 SLR 52 at p. 171, para 257 (‘non-citizens […] enjoy only common law free speech’). 41 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November

1950, entered into force 3 September 1953), ETS 5, 213 UNTS 221. 42 Ibid., Articles 10(2) and 11(2). 43 See, generally, Stone Sweet and Mathews 2008, Lee 2014, and Stone Sweet and Mathews 2017. 44 Constitution, above, n 2, Articles 14(2)(a) and (b). 45 High Court (Singapore), Chee Siok Chin and others v Minister for Home Affairs, judgment of 7 December 2005, [2006] 1 SLR(R) [Singapore Law Reports (Reissue)] 582. 46 Id at pp. 601–602, paras 45–48. 47 Id at pp. 602–603, para 49 (emphasis added). 48 Privy Council (on appeal from Singapore), Ong Ah Chuan v Public Prosecutor, judgment of 15 October 1980, [1979–1980] SLR(R) 710.

208

J. T.-T. Lee

suitable to give to individuals the full measure of the [fundamental liberties] referred to’.49 We will see that the High Court’s approach towards Article 14 has led to a reluctance on the part of the Court to strictly scrutinize legislation dealing with public assemblies for compliance with the freedom of assembly, and will no doubt have a similar inhibitory effect where the issue of whether legislation dealing with online falsehoods is compatible with free speech is concerned. As at the time of writing, the Court of Appeal, presently Singapore’s apex court, had not expressed its views on the correctness of the Chee Siok Chin approach towards interpreting Article 14.50 However, as discussed below, there are indications from Chief Justice Sundaresh Menon in a 2017 judgment of the Court of Appeal that a different—and, it is submitted, better—interpretive approach might be applied to the Article.

10.2 Regulating Public Assemblies 10.2.1 The Public Order Act The main Act of Parliament currently regulating public assemblies is the Public Order Act (‘POA’),51 which was passed in 2009. The essential premise of the Act is that a public assembly or procession is unlawful unless the Commissioner of Police is first notified in advance that it is to be held, and a permit for holding the event is obtained.52 An assembly is defined as:53 […] a gathering or meeting (whether or not comprising any lecture, talk, address, debate or discussion) of persons the purpose (or one of the purposes) of which is— (a)

to demonstrate support for or opposition to the views or actions of any person, group of persons or any government;

(b)

to publicise a cause or campaign; or

(c)

to mark or commemorate any event,

and includes a demonstration by a person alone for any such purpose referred to in paras (a), (b) or (c); […]

A procession means:54 49 Id at p. 721, para 23, citing Privy Council (on appeal from Bermuda), Minister of Home Affairs v Fisher, judgment of 14 May 1979, [1980] AC 319 at 328. The phrase “austerity of tabulated legalism” is a quotation from De Smith 1964, p. 194. 50 The Court of Appeal has now addressed this issue in a 2020 judgment: see the postscript. In Lee 2014, I have argued in favour of a proportionality analysis being applied to Article 14 and other guarantees of fundamental liberties in the Constitution. 51 Above, n 3. 52 Ibid., s 5(1). 53 Ibid., s 2(1). 54 Ibid.

10 Topical Storm Approaching: Regulating Public Assemblies and …

209

[…] a march, parade or other procession (whether or not involving the use of vehicles or other conveyances)— (a)

comprising 2 or more persons gathered at a place of assembly to move from that place substantially as a body of persons in succession proceeding by a common route or routes; and

(b)

the purpose (or one of the purposes) of which is— (i)

to demonstrate support for or opposition to the views or actions of any person, group of persons or any government;

(ii)

to publicise a cause or campaign; or

(iii)

to mark or commemorate any event,

and includes any assembly held in conjunction with such procession, and a march by a person alone for any such purpose referred to in paras (b)(i), (ii) or (iii); […]

The definitions are evidently broad, and it is notable that even an assembly or procession by a single person requires police authorization.55 Moreover, subsidiary legislation prohibits the holding of assemblies and processions in the vicinity of the Istana (the official residence of the President), Parliament House, the Supreme Court, and the State Courts and Family Justice Courts.56 While the requirement of a permit for public assemblies is not unknown in other jurisdictions, the Commissioner of Police has previously indicated that the policy is not to issue permits for any outdoor ‘political event’ in a public place ‘due to the potential for disorder and unruly behaviour’,57 and has also refused a permit for an LGBT running event called Pink Run ‘in the interest of public order’ because ‘LGBT advocacy […] remains a socially divisive issue’.58 Instead, intended organizers of such events are advised to hold them at a designated place called Speakers’ Corner; the usual permit requirement is statutorily 55 No doubt this requirement was introduced because under the previous permit scheme established by the Miscellaneous Offences (Public Order and Nuisance) (Assemblies and Processions) Rules (Cap 184, R 1, 2000 Rev Ed) (‘Assemblies and Processions Rules’) issued under the Miscellaneous Offences (Public Order and Nuisance) Act (Cap 184, 1997 Rev Ed) (‘MOA’), s 5, no police permit was required for an assembly or procession of fewer than five persons: see the Assemblies and Processions Rules, r 2(1). A procession involving four persons was the subject of the Chee Siok Chin case, above, n 45. 56 Public Order (Prohibited Areas) Order 2009 (S 490/2009). In theory, ‘any […] public assembly or public procession not exceeding 24 h in duration and in respect of which a permit is granted’ is allowed in the prohibited areas (id, para 3(e)); to date, I am not aware of such a permit having been granted. 57 Tay 2008. In this case, the permit was applied for pursuant to the Assemblies and Processions Rules issued under the MOA, above, n 55, s 5, which was superseded by the POA, above, n 3. See also Wong K S (Deputy Prime Minister and Minister for Home Affairs), ‘Estimates of Expenditure for the Financial Year 1st April, 2008 to 31st March, 2009 (Paper Cmd 2 of 2008)’, Singapore Parliamentary Debates, Official Report (28 February 2008), vol 84, col 1154 (‘We have stopped short of allowing outdoor and street demonstrations. However, we allow demonstrations if they take place indoors or within the confines of stadiums, as the Police assess that any disorder will be better contained in such venues. […] Our experiences in the past have taught us to be very circumspect about outdoor and street protests.’). 58 Yong 2014.

210

J. T.-T. Lee

lifted for events held there, provided various conditions are met.59 Only one such place exists in Singapore, in a public park that is not particularly near the key government buildings mentioned above, or other locations of high visibility such as Raffles Place (arguably the heart of the Central Business District) or Orchard Road (the main shopping street). Alternatively, certain events held indoors do not require a permit.60

10.2.2 The Constitutionality of Permit Schemes Regulating Public Assemblies The POA replaced an earlier permit scheme under the Miscellaneous Offences (Public Order and Nuisance) Act (‘MOA’).61 In a number of cases, the courts held that this scheme was not a violation of the right to freedom of assembly, though it has to be said that the analyses tended to be brief. In Ng Chye Huay v Public Prosecutor,62 it was averred that the scheme was unconstitutional because the police had ‘absolute discretion to issue permits that were required for assemblies to be lawful’.63 The High Court found itself ‘utterly unimpressed’ by this submission as ‘the wording of Article 14 itself makes clear that the rights enshrined in that article are qualified, rather than absolute, rights’.64 Similarly, in Chee Siok Chin65 which we have already encountered, although the applicants had not challenged the constitutionality of the permit scheme under the MOA, the High Court commented on an obiter basis that there was ‘nothing inherently wrong or unreasonable in requiring permission from the relevant authorities to be sought prior to the holding of a public meeting or assembly. This can be viewed as a facilitative arrangement.’66 It continued:67 The nub of the matter is that Articles 14(1)(a) and 14(1)(b) of the Constitution do not confer absolute or immutable rights. The rights conferred by these Articles can be restricted in the wider interests of, inter alia, the public order so that they do not impinge on or affect the rights of others. The framework of the Constitution deems it crucial and necessary to authorise the imposition of restrictions in the wider and larger interests of the community and country. 59 Public

Order (Unrestricted Area) Order 2006 (S 208/2006). the Public Order (Exempt Assemblies and Processions) Order 2009 (S 489/2009), 1st Schedule, para 4(1). 61 See the MOA, above, n 55, s 5 (repealed), and the Assemblies and Processions (revoked), above, n 55. 62 High Court (Singapore), Ng Chye Huay v Public Prosecutor, judgment of 17 October 2005, [2006] 1 SLR(R) 157. 63 Id at p. 171, para 43. 64 Id at p. 171, para 44. 65 Above, n 45. 66 Id at p. 604, para 53. 67 Id at p. 604, para 54, referred to in High Court (Singapore), Yap Keng Ho v Public Prosecutor, judgment of 22 February 2011, [2011] 3 SLR 32 at p. 46, para 21. 60 See

10 Topical Storm Approaching: Regulating Public Assemblies and …

211

The point arose again in Public Prosecutor v Chong Kai Xiong.68 Once more, the High Court emphasized that ‘constitutional provisions never create unbridled rights because the rule of law requires protection of the law to be extended to all and civil liberties cannot be very civil if in exercising them one disturbs the peace others enjoy’,69 possibly an allusion to Article 14(2)(b) permitting the right to assembly to be restricted on the ground of public order. In addition, the Court held that the power of the police to issue a permit to hold an assembly or procession was not unfettered, but was subject to ‘fair and adequate’ limits in the scheme.70 The judgment did not explain what these limits were. In two judgments heard by the same High Court judge, Yap Keng Ho v Public Prosecutor 71 and Yap Keng Ho v Public Prosecutor [No 2],72 which arose out of separate incidents but involved some of the same individuals, the appellants had been convicted by District Courts of taking part in public assemblies and/or processions without the requisite permits. This time they alleged it was not the permit scheme itself which was unconstitutional, but the police’s blanket policy of not issuing permits for political activities held outdoors.73 The judge held that the constitutionality issue was irrelevant to the appellants’ guilt—the fact remained that they had gone ahead with the events even though no permits had been issued. This was enough to constitute the criminal offence.74 What the appellants should have done was to challenge the police’s policy or the non-issuance of the permits through judicial review, but they had not done so.75 The current permit scheme under the POA was challenged for contravening Article 14 of the Constitution in Wham Kwok Han Jolovan v Public Prosecutor.76 Under Section 7(1) of the POA, the Commissioner of Police may either grant a permit (with or without conditions) for a public assembly or procession to be held, or refuse to grant a permit. Section 7(2) sets out the bases on which a permit may be refused, which includes having reasonable ground for apprehending that the proposed event may ‘be directed towards a political end and be organised by, or involve the participation of, any of the following persons: (i) an entity that is not a Singapore entity; (ii) an

68 High Court (Singapore), Public Prosecutor v Chong Kai Xiong, judgment of 1 April 2010, [2010] 3 SLR 355. 69 Id at p. 363, para 13. 70 Ibid. 71 Above, n 67. 72 High Court (Singapore), Yap Keng Ho v Public Prosecutor [No 2], judgment of 22 February 2011, [2011] 3 SLR 66. 73 Yap Keng Ho, above, n 67 at pp. 40–41, paras 11–12; Yap Keng Ho [No 2], id at p. 73, para 12, and pp. 75–76, para 16. 74 Yap Keng Ho, id at pp. 42–43, paras 14–15; Yap Keng Ho [No 2], id at p. 74, para 15. The High Court followed the reasoning in an earlier case, High Court (Singapore), Jeyaretnam Joshua Benjamin v Public Prosecutor, judgment of 10 October 1989, [1989] 2 SLR(R) 419. 75 Yap Keng Ho, id at p. 43, para 15; Yap Keng Ho [No 2], id at p. 76, para 16. 76 High Court (Singapore), Wham Kwok Han Jolovan v Public Prosecutor, judgment of 25 October 2019, [2019] SGHC 251.

212

J. T.-T. Lee

individual who is not a citizen of Singapore’.77 By Section 11, an applicant aggrieved by a decision of the Commissioner may appeal to the Minister for Home Affairs, whose decision on the matter is expressed to be final. Section 16(1)(a) provides that it is an offence for a person to organize a public assembly or procession ‘in respect of which no permit has been granted under Section 7 or no such permit is in force, where such permit is required by this Act’. The appellant was convicted under Section 16(1)(a) of the POA for organizing an indoor public assembly entitled ‘Civil Disobedience and Social Movements’ without a permit. One of the speakers was the Hong Kong activist Joshua Wong, who is not a Singapore citizen; he participated remotely by giving a speech though a Skype online call. The appellant argued that Section 16(1)(a) violated Article 14 for the following reasons: (1)

First, the section makes it an offence for anyone to organize a public assembly, even if the Commissioner’s refusal to grant a permit is inconsistent with Section 7 of the POA (for example, if the refusal was not for one of the grounds set out in Section 7(2)).78

(2)

Secondly, there is no ‘practical remedy’ against refusals to grant a permit made in bad faith. For example, if the court found that the Commissioner’s refusal to grant a permit was unlawful and quashed the decision, but the Commissioner or the Minister acted in bad faith and still refused to issue a permit, the applicant would have to challenge the repeated refusal in court again. The process could go on indefinitely as the court was limited to issuing quashing orders and could neither itself issue a permit nor direct the Commissioner or Minister to do so. In the meantime, it would remain an offence for the applicant to hold a public assembly or procession without a permit.79

The High Court disagreed with both submissions. At the outset, it noted that it was ‘unarguable’ that the right to freedom of assembly guaranteed by Article 14(1)(b) ‘is not an absolute right’. Moreover, citing Chee Siok Chin,80 there was a wide ‘legislative remit that allows Parliament to take a prophylactic approach in the maintenance of public order’.81 As regards the appellant’s first argument, the Court said it was based on the incorrect assumption a person who disagreed with the Commissioner’s decision to refuse a permit could simply defy it instead of challenging it in court. Rather, the Commissioner’s decision was valid and had to be obeyed unless it had been quashed by a court. It would be wrong to allow an applicant to ‘to take the law into his own hands. Such vigilante conduct cannot be condoned.’82 As for the second argument, the Court held it was ‘wholly speculative and unsubstantiated’ that the Commissioner

77 POA,

above, n 3, s 7(2)(h). Directed towards a political end and Singapore entity are defined in s 7(3). 78 Wham Kwok Han Jolovan, above, n 76 at para 23. 79 Id at para 26. 80 Above, n 45. 81 Chee Siok Chin, id at 603, para 50, quoted in Wham Kwok Han Jolovan, above, n 76 at para 18. 82 Wham Kwok Han Jolovan, id at para 25.

10 Topical Storm Approaching: Regulating Public Assemblies and …

213

or Minister might act in bad faith.83 It should be presumed that the high officials of state will act in accordance with the law, as the rule of law requires.84

10.2.3 Rethinking Public Assemblies The cases discussed above demonstrate the difficulty of establishing that the POA permit scheme for public assemblies and processions violates the constitutional guarantees of freedom of speech and expression. Given that Section 7(2) of the POA sets out eight grounds on which the Commissioner of Police may decline to issue a permit, it is hard to say the Commissioner exercises an entirely unfettered discretion. Additionally, the manner in which Articles 14(2)(a) and (b) of the Constitution have been drafted, and the way the courts have interpreted them, appear to give much leeway to Parliament to enact legislation restricting the freedoms. It is noteworthy that the courts have generally focused on the freedoms not being absolute and capable of being restricted on the ground of, among other things, public order, rather than also examining the importance of free speech and assembly in a democratic society, or assessing whether the permit scheme is a ‘necessary or expedient’ restriction. (Admittedly, many restrictive measures might be characterized as expedient even if they are not strictly necessary.) As was previously mentioned, the High Court has also declined to adopt a proportionality analysis when applying Article 14. However, as the Yap Keng Ho cases85 indicate, there remains some scope for challenging the police’s apparent blanket ban on outdoor cause-based events, which has not yet been put squarely before the courts. Some indication of how a court may approach such a case may be discerned from Vijaya Kumar s/o Rajendran v Attorney-General.86 The applicants, who were practising Hindus, argued that a condition imposed by the police in the POA permit for the annual Thaipusam religious procession violated their right to freedom of religion guaranteed by Article 15(1) of the Constitution, and was irrational in the administrative law sense. The condition was that during the procession, apart from the singing of pre-approved religious hymns, no musical instruments could be played or music-producing equipment used. The High Court took note of evidence tendered by the police that the Thaipusam procession usually involves 9000 to 10,000 people walking along a route of about three kilometres over more than 24 h. The route passes by a mosque and two Christian churches.87 The police said that, based on past experience, playing music during 83 Id

at para 28. at para 29, citing Court of Appeal (Singapore), Ramalingam Ravinthran v Attorney-General, judgment of 10 January 2012, [2012] 2 SLR 49 at p. 71, para 46. 85 Above, nn 67 and 72. 86 High Court (Singapore), Vijaya Kumar s/o Rajendran and others v Attorney-General, judgment of 17 September 2015, [2015] SGHC 244. 87 Vijaya Kumar, id at para 33. (The abbreviation s/o in the case name stands for ‘son of’, and is often used by persons of Indian ethnicity who do not have surnames.) 84 Id

214

J. T.-T. Lee

the procession could lead to the build-up of crowds, disruption of traffic flow, and conflicts between individuals, which might result in public disorder given the multireligious composition of Singapore’s population and its history of race riots.88 The Court accepted that since the police had ‘access to ground intelligence’ and ‘the subject matter of the decision or legislation concerned complex polycentric considerations such as social policy and public order’, the police were ‘in a far better position than the court to determine what is necessary for public order and safety’.89 On the other hand, the Court also remarked that the police had not imposed a blanket ban on music during the procession. Musical instruments could be played within the Hindu temples at the start and end of the procession, public audio systems transmitting religious music were allowed to be set up at designated points of the route, and devotees could sing religious hymns. This showed that the police had adopted a ‘calibrated approach’ and had balanced the applicants’ rights to practise their religion against the exigencies of public order.90 Ultimately, the Court found the police had demonstrated that legitimate public order concerns existed, and that the music restriction was directed at preserving public order.91 Under Article 15(4) of the Constitution, the right to freedom of religion ‘does not authorise any act contrary to any general law relating to public order, public health or morality’. Neither could the music restriction be called irrational.92 Vijaya Kumar thus indicates that while the courts will probably defer to the Commissioner of Police’s determination of whether for public order reasons a permit under the POA should be denied or whether a particular condition should be imposed when a permit is granted, they will require the police to provide plausible reasons for their decisions and, indeed, they are willing to consider if the police have acted proportionally. Support for a departure from the Chee Siok Chin approach towards Article 14 is also to be found in Menon CJ’s dissenting opinion in the Court of Appeal’s judgment in Attorney-General v Ting Choon Meng.93 While more details will be examined later on, it is significant that the Chief Justice held: ‘Whether speech may be limited entails a delicate balancing exercise between the nature of the individual’s right to speak and the competing interest in limiting that speech’.94 His statement implies that the phrase necessary or expedient in Article 14(2) is not inconsistent with the employment of a balancing or proportionality approach, which better emphasizes the importance rightly accorded to free speech and assembly, and enables the courts to more effectively ensure that the Government has exercised its powers properly. Nonetheless, if it seems difficult at present to use the judicial route to vindicate the right to free assembly in a manner more consonant with the right to the 88 Id

at paras 33–34 and 49. at para 36. 90 Id at para 38. 91 Id at para 35. 92 Id at para 49. 93 Court of Appeal (Singapore), Attorney General v Ting Choon Meng, judgment of 9 December 2015, [2017] 1 SLR 373. 94 Id at p. 420, para 109. 89 Id

10 Topical Storm Approaching: Regulating Public Assemblies and …

215

city—by according people more say over the use of the city centre for public assemblies while acknowledging the need for them to demonstrate responsibility—perhaps change will have to come through persuading the political branches of government to widen to space for holding outdoor caused-based events. While it is unlikely that the Government would favour doing away with a permit scheme entirely, perhaps it might allow for outdoor assemblies and processions in certain places of higher visibility than Speakers’ Corner. It might also consider imposing conditions such as requiring the organizers of events to be responsible for adequate crowd-control and security measures; to conduct prior registration to manage the number of participants; and to ensure that the event does not obstruct pedestrians and road traffic, or otherwise cause public inconvenience. No discussion of public assemblies can, however, overlook the pro-democracy protests in Hong Kong which began in 2019 and have continued into 2020, and the Black Lives Matter protests which erupted in cities across the United States following the death of a black man, George Floyd, on 25 May 2020 during his arrest by a white police officer who pinned him to the ground and knelt on his neck. In both cases, there were incidents of protesters being attacked and injured, and of shops being looted and property damaged. It would not be fair to assume from these events that all outdoor public assemblies inevitably turn violent; there are numerous counter-examples from various countries. It was claimed that many acts were caused not by protesters, but by opportunists taking advantage of the crowded streets to steal, or troublemakers who deliberately infiltrated the peaceful protests to provoke. There are also contextual reasons for the disorder that may not exist in other countries (for example, public frustration about the political situation in Hong Kong, and a long history of discriminatory treatment of black persons by the police in the United States). Indeed, allowing assemblies in a controlled manner may help to release pent-up tensions. A cautious approach towards broadening the scope for public assemblies may assure both the Government and the Singapore populace that events of this nature can be organized without inexorably descending into chaos.

10.3 Dealing with Online Falsehoods 10.3.1 Introduction to the Protection from Online Falsehoods and Manipulation Act In 2019, when Parliament passed the Protection from Online Falsehoods and Manipulation Act (‘POFMA’),95 Singapore became one of the first jurisdictions in the world to empower its Government to specifically target factual statements on the internet

95 Above,

n 4.

216

J. T.-T. Lee

which are false. A false statement of fact is defined by Section 2(2) of the Act as follows: In this Act— (a)

a statement of fact is a statement which a reasonable person seeing, hearing or otherwise perceiving it would consider to be a representation of fact; and

(b)

a statement is false if it is false or misleading, whether wholly or in part, and whether on its own or in the context in which it appears.

During the Second Reading in Parliament of the bill that led to the POFMA (‘the POFM Bill’), the Minister for Law said that how a statement of fact should be distinguished from an opinion, and why a misleading statement is regarded as false, had been addressed in existing case law.96 In Singapore Democratic Party v AttorneyGeneral,97 the High Court identified the relevant case law for distinguishing fact from opinion in the POFMA context as that applying to the defence of fair comment in the tort of defamation. It is a question of fact to be objectively determined based on how an ordinary reasonable reader would regard the statement,98 and the precise words used, the context in which the statement appears, and the content of the whole publication must all be considered.99 A particular concern about the Act is that since one political party, the People’s Action Party, currently holds an overwhelming majority in the Parliament, there is ‘a heightened risk that POFMA will be perceived as a backdoor to suppressing political criticism’.100 Indeed, in January 2020 the existence of ‘perceptions of a partisan political bias over the recent applications of POFMA’ against opposition politicians or persons affiliated with opposition political parties was raised in Parliament. The Minister for Communications and Information’s response was that this could be an ‘unfortunate convergence or coincidence’, but which indicated ‘a certain pattern of communication that exists out there’.101 The Act defines its own purposes as follows:102

96 Shanmugam K (Minister for Law), speech during the Second Reading of the Protection from Online Falsehoods and Manipulation Bill, Singapore Parliamentary Debates, Official Report (7–8 May 2019), vol 94. 97 High Court (Singapore), Singapore Democratic Party v Attorney General, judgment of 5 February 2020, [2020] SGHC 25. 98 Id at para 29, citing High Court (Singapore), Golden Season Pte Ltd v Kairos Singapore Holdings Pte Ltd., judgment of 9 February 2015, [2015] 2 SLR 751 at p. 785, para 100. 99 Singapore Democratic Party, ibid., citing Court of Appeal (Singapore), Chen Cheng v Central Christian Church, judgment of 28 August 1998, [1998] 3 SLR(R) 236, pp. 251–252, paras 34 and 35. 100 Tan and Teng 2020, p. 211, para 7. 101 Ong A (Nominated Member of Parliament) and Iswaran S (Minister for Communications and Information), ‘Measuring Public Interest Threshold and Maintaining Public Trust under Protection from Online Falsehoods and Manipulation Act (POFMA) Framework’, Singapore Parliamentary Debates, Official Report (6 January 2020), vol 94. 102 POFMA, id, s 5.

10 Topical Storm Approaching: Regulating Public Assemblies and …

217

(a)

to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication;

(b)

to suppress the financing, promotion and other support of online locations that repeatedly communicate false statements of fact in Singapore;

(c)

to enable measures to be taken to detect, control and safeguard against coordinated inauthentic behaviour and other misuses of online accounts and bots; and

(d)

to enable measures to be taken to enhance disclosure of information concerning paid content directed towards a political end.

We will generally focus on the purpose set out in para (a) above, as this implicates the right to freedom of speech. The Act sets out various measures of increasing severity that may be taken against false statements of fact. Part 3 of the Act states that any Government minister may instruct the ‘Competent Authority’ (the Info-communications Media Development Authority or IMDA)103 to issue what is called a ‘Part 3 Direction’ if a false statement of fact (the ‘subject statement’) has been or is being communicated in Singapore,104 and the minister is of the opinion that it is in the public interest to issue the direction.105 Section 4 of the Act defines the term in the public interest as follows:106 For the purposes of this Act and without limiting the generality of the expression, it is in the public interest to do anything if the doing of that thing is necessary or expedient— (a)

in the interest of the security of Singapore or any part of Singapore;

(b)

to protect public health or public finances, or to secure public safety or public tranquillity;

(c)

in the interest of friendly relations of Singapore with other countries;

(d)

to prevent any influence of the outcome of an election to the office of President, a general election of Members of Parliament, a by-election of a Member of Parliament, or a referendum;

103 The

Info-communications Media Development Authority was appointed by the Minister for Communications and Information as the Competent Authority pursuant to the POFMA, ibid., s 6(1) and a notification in the Government Gazette entitled Protection from Online Falsehoods and Manipulation Act 2019 (Act 18 of 2019): Appointment of Competent Authority (GN No 2656/2019). 104 In this context, a statement is communicated in Singapore if it is ‘made available to one or more end-users in Singapore on or through the internet’: POFMA, ibid., s 3(1). 105 Ibid., s 10(1). A Part 3 direction can be issued even if the subject statement has been amended or has ceased to be communicated in Singapore: s 10(2). 106 Note also that the POFMA, ibid., s 7(1), makes it an offence for a person to ‘do any act in or outside Singapore to communicate a statement knowing or having reason to believe that’ it is a false statement of fact, and that the communication of the statement in Singapore is likely to have consequences detrimental to the public interest, which are defined in terms virtually identical to s 4. The prohibition does not apply to any act for the purpose of, or incidental to, the provision of an internet intermediary service, a telecommunication service, a service of giving the public access to the internet, or a computing resource service: s 7(4). It may be noted that the MOA, above, n 55, s 14D, makes it an offence for a person to transmit or cause to be transmitted a message which the person knows to be false or fabricated; the maximum penalties are lower than those for the POFMA, s 7(2).

218

J. T.-T. Lee

(e)

to prevent incitement of feelings of enmity, hatred or ill-will between different groups of persons; or

(f)

to prevent a diminution of public confidence in the performance of any duty or function of, or in the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board.

There are two types of Part 3 Directions: correction directions and stop communication directions. A correction direction requires the person who made the subject statement to communicate a correction notice consisting either of (a) ‘a statement, in such terms as may be specified, that the subject statement is false, or that the specified material contains a false statement of fact’, or (b) ‘a specified statement of fact, or a reference to a specified location where the specified statement of fact may be found’, or both.107 The subject statement does not have to be taken down, but the direction may require the correction notice to be posted in a specified online location,108 in some specified proximity to the false statement or one substantially similar to it, and even in a newspaper or other print publication in Singapore.109 A correction direction can be issued to a person even if the person does not know or has no reason to believe that a statement is false.110 A stop communication direction requires a person to stop communicating the subject statement or a substantially similar statement in Singapore by a specified time.111 To stop communicating a statement means ‘taking the necessary steps to ensure that the statement is no longer available on or through the internet to end-users in Singapore, including (if necessary) the removal of the statement from an online location’.112 A stop communication direction can include a correction notice,113 and various provisions similar to those applicable to correction directions apply to it as well.114 Part 3 Directions may be issued against persons whether they are in or outside Singapore, and may require them to do acts which are in or outside Singapore.115 It is a criminal offence not to comply with a direction without a reasonable excuse.116 Moreover, where there has been non-compliance, the Minister for Communications and Information may direct the IMDA to issue an access blocking order to an internet service provider (‘ISP’), requiring the ISP to ‘take reasonable steps to disable access by end-users in Singapore to the online location’ where the subject statement is being 107 Ibid.,

s 11(1).

108 Ibid., s 11(2). Online location

is defined in s 2(1) as ‘any website, webpage, chatroom or forum, or any other thing that is hosted on a computer (as defined in the Computer Misuse Act (Cap. 50A)) and can be seen, heard or otherwise perceived by means of the internet’. 109 Ibid., s 11(3). 110 Ibid., s 11(4). 111 Ibid., ss 12(1) and (2). 112 Ibid., s 12(7)(b). 113 Ibid., s 12(3). 114 Ibid., ss 12(3), (4) and (7). 115 Ibid., ss 13(1) and (2). 116 Ibid., s 15.

10 Topical Storm Approaching: Regulating Public Assemblies and …

219

communicated in Singapore.117 An ISP which does not obey an access blocking order commits a crime.118 On the other hand, the Act relieves an ISP of civil or criminal liability if it complies with an order with reasonable care and in good faith.119 Thus, for example, an ISP could not be sued by a subscriber for breach of contract. A person to whom a Part 3 Direction has been issued may first appeal to the minister who called for the direction to be issued.120 A further appeal to the High Court is possible on only three grounds:121 (a)

the person did not communicate in Singapore the subject statement;

(b)

the subject statement is not a statement of fact, or is a true statement of fact;

(c)

it is not technically possible to comply with the Direction.

A decision of the High Court may be appealed to the Court of Appeal.122 Without any prior requirement that a Part 3 Direction be issued, government ministers are empowered to issue directions under Part 4 of the POFMA that instruct the IMDA to order internet intermediaries123 (such as online services providing social networking, search engines, content aggregation, internet-based messaging and video-sharing) to communicate correction notices to their end-users in Singapore;124 to disable access to material containing a false statement and identical copies of it;125 and even to require correction notices to be published in newspapers, on radio and television, and in mobile telephone services.126 An entity can be designated as a ‘prescribed digital advertising intermediary’ or a ‘prescribed internet intermediary’; at present, large internet entities such as Facebook, Google and Twitter have been so designated.127 Such entities have a duty to take reasonable steps both in and outside Singapore to ensure they do not facilitate the communication in Singapore of ‘any paid content that gives publicity

117 Ibid.,

ss 16(1) and (2). s 16(3). 119 Ibid., s 16(4). 120 Ibid., s 17(2). 121 Ibid., s 17(5). 122 Ibid., s 17(8). 123 Ibid., s 2(1) (definitions of internet intermediary and internet intermediary service). 124 This is called a targeted correction notice: id, s 21. Correction notice is defined in the same terms as a correction notice applicable to a Part 3 direction: s 21(1). 125 This is called a disabling direction: id, s 22. 126 This is called a general correction direction: id, s 23. During the parliamentary debate on the bill eventually enacted as the POFMA (‘the POFM Bill’), it was suggested that such directions might be used when false statements had been circulated through closed platforms, including those using end-to-end encryption, such as chat groups and social media groups: Tong E (Senior Minister of State for Law), speech during the Second Reading of the Protection from Online Falsehoods and Manipulation Bill, Singapore Parliamentary Debates, Official Report (7 May 2020), vol 94. 127 Protection from Online Falsehoods and Manipulation Regulations 2019 (S 662/2019) (‘POFMA Regulations’), reg 3 (prescribed internet intermediaries) and reg 5 (prescribed digital advertising intermediaries). 118 Ibid.,

220

J. T.-T. Lee

to or otherwise promotes an online location’ that includes the statement or material which is the subject of a Part 3 or Part 4 Direction.128 Failure to do so is an offence.129 The Minister for Communications and Information may stipulate that an online location is a ‘declared online location’ where three or more different statements which are the subject of one or more active Part 3 or Part 4 Directions have been or are being communicated on a particular online location, and at least three of those statements were first communicated in Singapore on the location within six months of the date of the declaration.130 Among other things, the owner or operator of the online location may be required to communicate in Singapore to any end-user accessing the location that the location is subject to a declaration.131 If the owner or operator fails to do so, and end-users in Singapore have accessed or are accessing the online location,132 the Minister may direct the IMDA to issue an access blocking order to an internet access service provider or internet intermediary to disable access to the online location.133 A number of POFMA provisions seek to prevent a declared online location from receiving financial or other material benefits. It is an offence to receive any benefit from operating a declared online location, which includes selling advertising space on the location or providing access to any part of the location for payment.134 A person convicted of this offence can be ordered to disgorge the benefit received by paying a penalty equivalent to the benefit.135 Service providers and digital advertising intermediaries are required to take reasonable steps both in and out of Singapore not to communicate paid content in Singapore on declared online locations.136 Anyone other than a service provider or a digital advertising intermediary who expends or applies property knowing or having reason to believe that this action would support, help or promote the communication of false statements of fact in Singapore on a

128 POFMA,

above, n 4, s 47(1). s 47(4). 130 Ibid., s 32(1). 131 Ibid., s 32(3)(f). 132 Ibid., ss 33(1) and (2). Paid content means ‘any statement that is communicated in any place for consideration’: id, s 2(1). 133 Ibid., s 33(3) (internet access service providers) and s 34 (internet intermediaries). 134 Ibid., ss 36(1) and (2). A person is not regarded as operating an online location ‘if the person does so merely as part of providing an internet intermediary service or incidentally to such provision’: s 36(7). 135 Ibid., s 36(4). 136 Ibid., ss 37(1)–(3). A service provider is ‘any person (other than a digital advertising intermediary) who, in the ordinary course of business, provides advisory or other services relating to the communication of paid content in any place’, while a digital advertising intermediary is ‘any person who, in the ordinary course of business, facilitates the communication of paid content in any place by acting as the link or part of the link between—(a) the owners or operators of online locations; and (b) advertisers and service providers, by means of an internet-based service’, and includes persons who provide advertising exchanges, demand side platforms, and supply side platforms: s 2(1). 129 Ibid.,

10 Topical Storm Approaching: Regulating Public Assemblies and …

221

declared online location commits an offence.137 This, for example, prevents people from donating money to support a declared online location. Since the Act came into force, the powers described above have been exercised on numerous occasions. One example serves to illustrate this, and also the limitations of the Act. Alex Tan, a Singaporean now resident in Australia, has had numerous correction directions issued in respect of statements made on his personal Facebook page and three other Facebook pages that he manages, called National Times Singapore, Singapore States Times and States Times Review. The statements relate to matters such as the alleged abuse of power by the police and bias by the judiciary, the COVID-19 situation in Singapore, and the operation of the POFMA itself. As he failed to comply with any of the directions, these pages were prescribed as declared online locations, and disabling directions have been issued to Facebook to block access to the pages.138 However, as Tan is presently out of the jurisdiction criminal proceedings cannot be taken against him for communicating false statements or failing to comply with the directions issued against him under the Act. Also, as his actions show, he has a propensity for simply creating new social media pages, thus continuing to play Whac-A-Mole with the Government.

10.3.2 Potential Constitutional Challenges to the POFMA 10.3.2.1

The Act as a Whole

Since the POFMA provides means for the authorities to curtail the ability of individuals to make certain types of statements, the right to freedom of speech and expression guaranteed by Article 14(1)(a) of the Constitution is, at first blush, engaged. As of the date of writing no constitutional challenge to the POFMA had yet been dealt with by the courts, though one may be heard before long. Under the Chee Siok Chin approach towards applying Article 14,139 it is unlikely that the Act as a whole would be found to violate the right to free speech, the latter being subject to restrictions imposed by Parliament that are considered ‘necessary or expedient in the interest of’, among other things, ‘public order’.140 It would be quite difficult to argue that the purposes of the Act set out in Section 5 are not in the interest of public order,141 137 POFMA,

above, n 4, s 38. for example, (6 May 2020) Pofma: Singapore States Times, Alex Tan’s Facebook Pages to be Declared Online Locations after Covid-19 ‘Falsehoods’. Today https://www.todayonline.com/ singapore/pofma-singapore-states-times-alex-tans-facebook-pages-be-declared-online-locationsafter (accessed 15 June 2020); (30 May 2020) Govt Orders Facebook to Disable Singapore Users’ Access to National Times Singapore Facebook Page. Today https://www.todayonline.com/sin gapore/govt-orders-facebook-disable-singapore-users-access-national-times-singapore-facebookpage (accessed 15 June 2020); Elangovan 2020. 139 See Pt 1.1.2, above. 140 Constitution, above, n 2, Article 14(2)(a). 141 See also Tan and Teng 2020, pp. 220–223, paras 20–23, and p. 246, para 62. 138 See,

222

J. T.-T. Lee

particularly since the term public order has been taken to be a ‘broad concept’142 which is ‘synonymous with public peace, safety, and tranquillity’.143 The fact that the Act provides a graduated range of measures that can be invoked against false statements of fact, with various requirements that must first be satisfied, also militates against a finding that the Act provides authorities with unfettered discretion which would violate Article 14.144 Besides, the view has been taken that statements which have been proven to be false in a court of law fall outside the protection of Article 14(1)(a). In Ting Choon Meng,145 the constitutionality of the former Section 15 of the Protection from Harassment Act (‘PHA’)146 was challenged. At the time of the judgment, this provision permitted a person about whom a false statement of fact had been made to apply to the District Court for an order that ‘no person shall publish or continue to publish the statement complained of unless that person publishes such notification as the District Court thinks necessary to bring attention to the falsehood and the true facts’.147 A majority of the Court of Appeal held that only natural persons and not organizations (the Government included) could avail themselves of Section 15, while Menon CJ dissented. Addressing the constitutional point in his opinion, the Chief Justice stated in obiter that:148 […] there is little, if any, value in allowing the continued propagation of free speech which has been determined by a court to be false, without the concurrent notification that such speech is false and/or which contains a direction to the true facts. Such false speech cannot be justified as free speech which should be protected on the basis of any of the theoretical justifications underpinning the liberty of persons relating to free speech. Therefore, without even reaching the inquiry as to the nature of the State’s interest in regulating such speech, s 15 cannot be said to be unconstitutional because the nature of the speech to which an order made pursuant to s 15 would apply is not protected under Article 14(1) of the Constitution. 142 Vijaya

Kumar, above, n 87 at para 31. Siok Chin, above, n 45 at p. 603, para 50, quoting Singh 1996, p. 113. In Vijaya Kumar, ibid., the High Court quoted High Court (Malaysia), Tan Boon Liat v Menteri Hal Ehwal Dalam Negeri, Malaysia [1976] 2 MLJ 83 at p. 86, to the effect that ‘danger to human life and safety and the disturbance of public tranquillity must necessarily fall within the purview of the expression’ public order in Articles 15(4) of the Constitution. The same passage was also quoted in High Court (Singapore), Chan Hiang Leng Colin v Public Prosecutor, judgment of 15 September 1994, [1994] 3 SLR(R) 209 at p. 233, para 58. 144 Jeyaretnam Joshua Benjamin, above, n 74 at p. 429, para 27: ‘If the discretion vested in the licensing officer under the Act were absolute and untrammelled, there might be a case for arguing that the licensing scheme is unconstitutional, as then the licensing officer would have been vested with arbitrary power to deprive a citizen of his constitutional right to freedom of speech and expression contrary to the objects of Article 14(2).’ 145 Above, n 93. 146 Cap 256A, 2015 Rev Ed. 147 Ibid., ss 15(1) and (2). With effect from 1 April 2020, s 15 was extensively revised by the Protection from Harassment (Amendment) Act 2019 (No 17 of 2019) to allow the District Court to issue stop publication orders, correction orders, disabling orders, targeted correction orders and general correction orders, along the lines of the similarly named directions in the POFMA. 148 Ting Choon Meng, above, n 93 at p. 422, para 117. The judges in the majority found it unnecessary to deal with this issue: id at p. 394, para 37. 143 Chee

10 Topical Storm Approaching: Regulating Public Assemblies and …

223

This proposition has not yet been adopted by a majority of the Court of Appeal, and it is suggested that the Court should avoid accepting it without qualifications. However, as mentioned earlier, an interesting aspect of Menon CJ’s opinion was that he posited an alternative approach which departed significantly from Chee Siok Chin’s treatment of Article 14. While not going so far as to embrace a proportionality analysis, he also did not mechanically determine if Section 15 of the PHA came within one of the Article 14(2)(a) grounds upon which free speech may be restricted. Instead, he highlighted that the right to free speech needs to be carefully balanced against competing interests in limiting speech. The Chief Justice went on to say that assuming false speech is constitutionally protected, he would hold that Section 15 is a necessary or expedient restriction on the right to free speech in the interest of public order.149 While the term public order ‘usually connotes the protection of a public physical space from disorder’, ‘[g]iven the modern context in which digital speech is exercised, especially where falsehoods can be rapidly disseminated in an unregulated Internet sphere and could conceivably threaten public order, there is no reason why false statements should not be justifiably restricted on the basis of the preservation of public order’.150 Regardless which of the above approaches one prefers the sentiments are readily transferable to the POFMA, which therefore suggests that a general argument that Article 14(1)(a) of the Constitution forbids any legislative scheme empowering the Government to act against online false statements would likely be unsuccessful.151

10.3.2.2

Sufficiency of Public Interest

It might be, though, that specific aspects of the regulatory scheme laid down in the POFMA might be challengeable for not being in line with the right to free speech. We will examine the presence of public interest, and the allocation of the burden of proving the truth or falsity of a subject statement. Before any Part 3 or Part 4 Direction is issued, it is a requirement that the minister seeking to instruct the IMDA to act must be of the opinion that it is in the public interest that the measure be taken.152 It was mentioned earlier that public interest is defined in Section 4 of the Act; the section states that, without limiting the generality of the expression, doing something is in the public interest if the doing of that thing is necessary or expedient for any of six enumerated grounds. Free speech is arguably impaired to a greater extent by directions which will prevent people from viewing a subject statement, as compared to directions which only require a correction notice to be displayed. If the issuance of a direction is challenged in court for not being in the public interest, applying Menon CJ’s balancing

149 Id

at p. 422, para 118. at p. 422, para 119. 151 See also Tan and Teng 2020, p. 219, para 19. 152 POFMA, above, n 4, s 10(1)(b) (Part 3 Directions) and s 20(1)(b) (Part 4 Directions). 150 Id

224

J. T.-T. Lee

approach in Ting Choon Meng153 to Article 14(1)(a) of the Constitution, it may be that a court should require stronger evidence of public interest from the minister in the former cases than in the latter. An absence or insufficiency of public interest is not one of the grounds upon which the Court can set aside a Part 3 or Part 4 Direction on appeal.154 This is a rather curious omission, considering that the appeal procedure was intended to be a fast, simple and inexpensive method of dispute resolution.155 Thus, such a challenge would have to be brought through a traditional judicial review application to the High Court for the direction to be quashed.156 The basis of the application might simply be non-compliance with the Act’s requirements (with the right to free speech coming into to play as described above), or possibly some other administrative law ground such as irrationality or the exercise of discretion in bad faith. The first such case may be heard soon; The Online Citizen (‘TOC’), which operates a website providing socio-political commentary, applied to the High Court on 29 April 2020 for judicial review of a correction direction issued against it at the behest of the Finance Minister. The Government states that a claim in an article on TOC’s website that the annual salary of Ho Ching, the Executive Director and Chief Executive Officer of Temasek Holdings, a Government-owned investment company, was nearly S$99 million, is false.157 Ho is the wife of Prime Minister Lee Hsien Loong. Among other things, TOC is claiming that it was not in the public interest for the Finance Minister to have issued the direction.158 153 Above,

n 93. above, n 4, s 17(5) (Part 3 directions) and ss 29(5) and (6) (Part 4 directions); see also Tan and Teng 2020, p. 248, para 65. 155 Shanmugam K (Minister for Law), speech during the Second Reading of the Protection from Online Falsehoods and Manipulation Bill, Singapore Parliamentary Debates, Official Report (7 May 2019), vol 94. 156 The continued availability of judicial review was confirmed by the Law Minister during the parliamentary debates on POFM Bill: ibid. 157 (19 April 2020) Corrections Regarding Falsehoods on the Annual Salary of Temasek Holdings Pte Ltd.’s Executive Director and CEO Ms Ho Ching and Additional Clarifications. Singapore Government website https://www.gov.sg/article/factually-corrections-on-fal sehoods-on-annual-salary-of-temasek-holdings-ceo-ho-ching (accessed 10 June 2020; archived at https://web.archive.org/web/20200428115528/https://www.gov.sg/article/factually-correctionson-falsehoods-on-annual-salary-of-temasek-holdings-ceo-ho-ching). 158 Rajah I (Second Minister for Finance), ‘Issuance of POFMA Correction Direction for Online Commentaries on Compensation of Temasek Holdings CEO’, Singapore Parliamentary Debates, Official Report (5 May 2020), vol 94; see also (6 May 2020) TOC Files Application for Judicial Review of POFMA Correction Direction on Posts Made about Temasek Holdings CEO Ho Ching’s Salary. The Online Citizen https://www.onlinecitizenasia.com/2020/05/06/toc-files-applicationfor-judicial-review-of-pofma-correction-direction-on-posts-made-about-temasek-holdings-ceoho-chings-salary/ (accessed 10 June 2020; archived at https://web.archive.org/web/202006041 65225/https://www.onlinecitizenasia.com/2020/05/06/toc-files-application-for-judicial-review-ofpofma-correction-direction-on-posts-made-about-temasek-holdings-ceo-ho-chings-salary/), and (6 May 2020) High Court to Decide if Minister’s Pofma Order should be Upheld in Case Related to Temasek CEO’s Salary. Today https://www.todayonline.com/singapore/high-court-decide-ifministers-pofma-order-should-be-upheld-case-related-temasek-ceos. 154 POFMA,

10 Topical Storm Approaching: Regulating Public Assemblies and …

10.3.2.3

225

Burden of Proof

The right to free speech was successfully relied on in an appeal to the High Court against the imposition of a correction direction when it came to determining whether the burden of proof lies with the appellant to establish that a statement of fact is true, or whether it is for the Government minister seeking the direction to prove that the statement is false. In the first appeal under the POFMA brought before the High Court, Singapore Democratic Party v Attorney-General,159 the Court found that the burden of proof should be borne by the Government. The ‘starting point’, according to Justice Ang Cheng Hock, was Article 14(1)(a) of the Constitution, which made it clear that the members and officers of the Singapore Democratic Party (‘SDP’), an opposition political party, who are citizens ‘have a right to freely express their views’.160 Although in support of its position the Government relied on Section 103 of the Evidence Act161 which states: ‘Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist’, the judge held that since the minister was contending that the appellant’s right to free speech should be constrained by the direction, it was the minister who desired the court to give judgment that the appellant’s rights should be curtailed, and that the appellant should be subject to legal liability if it did not comply with the direction.162 Among other points, Ang J also noted that to cause a correction direction to be issued by the IMDA, the minister only has to provide the basis on which a subject statement or statement contained in the subject material is determined to be a false statement of fact.163 No evidence of falsity, such as data or statistics, needs to be produced.164 If the burden of proof rests on the appellant, this could hypothetically lead to a situation:165 […] where the Minister or respondent completely fails to provide any evidence of the falsity of a particular subject statement, [yet] the respondent could still succeed in having the appeal under s 17(1) of the POFMA dismissed. This is despite the fact that it is the appellant’s right to free speech which the Minister seeks to infringe upon.

In connection with this, it may be pointed out that the judge also noted there was a ‘clear information asymmetry’ between the minister and the maker of a statement, as the minister was ‘able to rely on the machinery of state to procure the relevant evidence of falsity’.166

159 Above,

n 97. at para 37. 161 Cap 97, 1997 Rev Ed. 162 Singapore Democratic Party, above, n 97 at para 37. 163 POFMA Regulations, above, n 127, reg 6(1)(b). 164 Singapore Democratic Party, above, n 97 at paras 41–42. 165 Id at para 43 (emphasis original). 166 Id at para 39. 160 Id

226

J. T.-T. Lee

A differently constituted High Court came to the opposite conclusion in The Online Citizen Pte Ltd v Attorney-General,167 decided two weeks after the above judgment. Justice Belinda Ang Saw Ean focused on the wording of Section 17(5) of the POFMA,168 which enumerates the grounds on which the High Court may set aside a Part 3 Direction: (a)

the person did not communicate in Singapore the subject statement;

(b)

the subject statement is not a statement of fact, or is a true statement of fact;

(c)

it is not technically possible to comply with the Direction.

In the judge’s opinion, these grounds ‘characterise the legal elements in terms of the positive case that the statement-maker has to meet (e.g., where the subject statement is “true” or the person “did not communicate” the statement in Singapore)’, thus indicating that the onus lies on the statement-maker to prove one or more these grounds.169 If Parliament had intended that the minister bear the burden of establishing the grounds specified in Section 17(5), they would have been phrased in terms of the minister’s positive case, for example, that the subject statement was false or that the person had communicated the statement.170 Even though both parties had agreed that Section 103(1) of the Evidence Act applied to the case, the judge felt this was a ‘red herring’, because the provision appears in Part III of the Act, and Section 2(1) states that ‘Parts I, II and III shall apply to all judicial proceedings in or before any court, but not to affidavits presented to any court or officer […]’. She took the view that if Part III of the Act did not apply to affidavits, then it also did not apply to judicial proceedings where the evidence had been led solely by affidavits, as was the present case.171 In any case, she emphasized that ‘greater weight’ should be given to the language of Section 17(5) of the POFMA.172 Belinda Ang J felt that the reliance on Article 14(1)(a) of the Constitution in the Singapore Democratic Party case was misplaced173 since, according to the dissenting judgment of the Chief Justice in Ting Choon Meng:174 […] a wholly unrestricted right to free speech (assuming for the moment this exists at all) does not extend to a wholly unrestricted right to deceive or to maintain a deception by not drawing attention to the falsehood.

In any case, a correction direction does not inhibit free speech because there is no requirement that the statement-maker make the impugned statement unavailable for 167 High Court (Singapore) The Online Citizen Pte Ltd v Attorney-General, judgment of 19 February 2020, [2020] SGHC 36. 168 Id at para 34. 169 Id at para 27. 170 Id at para 29. 171 Id at para 32. 172 Id at para 34. 173 Id at para 35. 174 Ting Choon Meng, above, n 93 at p. 421, para 112.

10 Topical Storm Approaching: Regulating Public Assemblies and …

227

viewing on the Internet; the statement-maker need only publish a correction notice alongside the statement.175 In addition to other arguments, the judge felt it was inappropriate to rely on the existence of an information asymmetry between the minister and the appellant to determine where the burden of proof lay, since this issue had not been mentioned in Parliament when the POFM Bill was being debated. It was ‘not obvious how the court should balance the statement-maker’s interests in mitigating information asymmetry on one hand with the respondent’s interests in avoiding confidential disclosures on the other’.176 Even if the information asymmetry was relevant, it was not oppressive for the burden to be upon the appellant, since once the appellant had adduced prima facie evidence of the statement’s truth, the evidential burden would shift to the minister to demonstrate the contrary. The appellant would thus have an equal opportunity to challenge the evidence adduced by the minister.177 In view of these two judgments at variance with each other, the law relating to the burden of proof will need to be authoritatively stated by the Court of Appeal. In the meantime, I proffer a few thoughts on the constitutional issue. First, it will be recalled that in Ting Choon Meng Menon CJ was of the opinion that speech ‘which has been determined by a court to be false’ might fall outside Article 14(1)(a)’s protection.178 When the issuance of a correction direction is being appealed to the High Court, there exists an assertion by a minister that a statement is false, but the Court has not yet determined this fact. Thus, when determining which party the burden of proving the truth or falsity of the statement should lie, it seems doubtful that the Court should effectively assume the statement is false and that Article 14(1)(a) is irrelevant to the issue. Secondly, while a correction direction does not impair free speech in that the subject statement need not be taken down from the internet, other measures provided for by the POFMA such as access blocking orders, stop communication directions, disabling directions and the designation of declared online locations do hinder or prevent the subject statement from being viewed. The courts will therefore have to consider how Article 14(1)(a) applies to such measures.

10.3.3 Rethinking Online Falsehoods Given the wide-ranging powers provided by the POFMA to the Government, people will necessarily have to adapt the way they communicate online so as not to unnecessarily fall afoul of it. Apart from the role that the right to free speech might have in how the Act should be interpreted, some aspects of the Act might also bear rethinking to better align it with the people’s right to greater participation in the creation and

175 The

Online Citizen, above, n 167 at para 36. at para 43. 177 Id at para 44. 178 Ting Choon Meng, above, n 93 at p. 422, para 117. 176 Id

228

J. T.-T. Lee

control of information that constitutes how the city is experienced and used—the digital right to the city.

10.3.3.1

Avoiding False Statements of Fact

It is clear that one of the rationales of the POFMA is to prompt people to refrain from making or repeating online falsehoods. This is probably a salutary consequence of the Act—statement-makers will need to be more careful when expressing themselves. The Singapore Democratic Party case illustrates this. A correction direction had been issued against the SDP in respect of an article published on its website in June 2019. The SDP had set out a population and immigration policy proposal, which it said ‘comes amidst a rising proportion of Singapore PMETs [professionals, managers, executives and technicians] getting retrenched’. This was objected to by the Minister for Manpower because, according to the Ministry’s statistics, the number of retrenched local PMETs per 1000 local PMET employees had decreased from 2015 to 2018. The SDP countered this by saying that it had relied on figures from 2010 to 2018, which showed an increase in retrenchments.179 The High Court found the appellant’s argument unconvincing, in particular because the use of the word amidst in the statement suggested ‘an urgency and contemporaneity’ with the time the article was published, and was thus inconsistent with the appellant’s reliance on such a long timeframe.180 Moreover, by not mentioning that the more recent 2015–2018 data contradicted its assertion, the statement was misleading.181 It appears the SDP could have avoided being subject to the POFMA if it had worded its article with more thought and set out the statistics it was relying on. The incentive to avoid inaccurate and misleading online statements provided by the Act is consistent with the digital right to the city. If citizens wish to exercise greater self-regulation of information concerning how they experience and relate to the city, as a corollary they must create and communicate the information responsibly.

10.3.3.2

A Responsible Journalism Defence

One interesting point that emerged from the judgment in The Online Citizen was that the POFMA does not provide for a ‘reporting defence’. TOC had published an online article containing verbatim extracts from a press statement issued by Lawyers for Liberty, a Malaysian non-governmental organization, which alleged that the Singapore prison authorities used brutal and unlawful methods to carry out the death penalty by hanging. The Minister for Home Affairs initiated the issuance of a correction notice against TOC on the basis that the allegations were false. During the court 179 Singapore

Democratic Party, above, n 97 at paras 91–93. at para 94. 181 Id at para 98. 180 Id

10 Topical Storm Approaching: Regulating Public Assemblies and …

229

proceedings, TOC took no position as to whether the press statement was true or false, stating that it was only reporting the allegation which had been made, as journalists do. The High Court found the reporting defence ‘untenable’.182 One reason was that Section 11(4) of the Act specifies: ‘A person who communicated a false statement of fact in Singapore may be issued a Correction Direction even if the person does not know or has no reason to believe that the statement is false.’ Thus, whether or not TOC knew if the contents of the press statement were true was immaterial.183 Besides, in Belinda Ang J’s view, recognizing a reporting defence would ‘frustrate the legislative purpose’ set out in Section 5(a) of the Act, which is ‘to prevent the communication of false statements of fact in Singapore and to enable measures to be taken to counteract the effects of such communication’. Thus, ‘POFMA not only seeks to capture those tale-makers who author falsehoods, but also implicates tale-bearers who receive false information and forward it to others without taking a position on the truth of the content’.184 The judgment thus demonstrates how the Act affects citizen journalists and professional media organizations. Their activities would probably not be greatly impinged upon by having to publish a correction notice but, again, if the Government sought a direction for access to the subject statement to be disabled, this would have free speech implications. Readers would not be able to compare the statement with the Government’s response to it and judge the matter for themselves. Perhaps thought should be given to whether a qualified reporting defence ought to be introduced in the POFMA, for instance, to the effect that Part 3 or Part 4 Directions cannot be sought if a person is merely reporting comments that a third party has made, and the person has exercised ‘responsible journalism’ by, among other things, informing a relevant government agency that it intends to publish the comments, giving the agency a reasonable time to respond, and also reporting the agency’s response.185 Again, if a person can show that information has been reported responsibly, the digital right to the city entails that the person should be accorded control of the information without the constraints imposed by the POFMA.

10.4 Concluding Thoughts Over the years, the Singapore Government has strictly regulated the physical use of the city through the POA and earlier legislation, not merely by requiring permits to be obtained before public assemblies and processions are held, but also by adopting 182 The

Online Citizen, above, n 167 at para 54. at para 56. 184 Id at para 57. 185 Compare the neutral reportage ‘defence’ to defamation discussed in Court of Appeal (England and Wales), Roberts v Gable, judgment of 12 July 2007, [2008] QB 502, referred to in Review Publishing, above, n 40 at pp. 149–150, paras 210–213. 183 Id

230

J. T.-T. Lee

a blanket policy of not issuing permits for cause-based outdoor events. Thus, in general, such events may only be held at Speakers’ Corner, which is not particularly near key government buildings or other highly visible locations such as the Central Business District or the main downtown shopping area. In 2019, the Government extended its control into the digital realm through the POFMA. Among other things, this statute empowers ministers to respond to false statements of fact communicated on the internet which are regarded as a threat to the public interest by requiring correction notices to be published or access to the material to be blocked. In more serious cases, the statement-maker and internet entities facilitating access to the objectionable material can be prevented from benefiting financially from it. While Article 14(1) of the Constitution guarantees the rights to freedom of speech and assembly to all citizens, the courts have generally construed these rights narrowly and emphasized they may be restricted for public order reasons. Attempts to challenge the permit regime under the predecessor of the POA and the POA itself as a whole as inconsistent with the right to free assembly have not succeeded, and similar action against the POFMA is likely to reach the same result. In any case, it is arguably not unreasonable for the Government and the Parliament to regulate public assemblies and deal with online falsehoods to some extent. On the other hand, these civil rights may have a role to play in specific aspects of the POA and POFMA schemes, including whether the Government is justified in its policy of not issuing any permits for cause-based outdoor assemblies, how the element of ‘public interest’ in the POFMA is to be determined, and whether it is the statement-maker or the Government that bears the burden of proving if an online statement is false. In recent times the Government has acknowledged the importance of public consultation and engagement, evidenced latterly by the launch in June 2019 of a movement called Singapore Together. Envisioned as a platform for the ruling PAP’s fourth-generation leadership to involve citizens in policymaking,186 Deputy Prime Minister Heng Swee Keat has said ‘the Government will partner Singaporeans in new ways, to design and implement policies together’.187 Thus, it may be that if citizens seek changes to aspects of the statutory regimes that will accord to citizens greater ownership and say over how the city is experienced and used, both physically and digitally—for instance, to allow outdoor assemblies in more places than just Speakers’ Corner, and to introduce a responsible journalism defence in the POFMA—the Government will be open to arguments based on the right to the city and its modern extension, the digital right to the city. Postscript On 6 November 2020, the Singapore Court of Appeal handed down its judgment in Wham Kwok Han Jolovan v Public Prosecutor 188 on appeal from the High Court.189 It 186 Ng

2020a. See also Ng 2020b; and Ng 2020c. 2019. 188 Court of Appeal (Singapore), Wham Kwok Han Jolovan v Public Prosecutor, judgment of 6 November 2020, [2020] SGCA 111 (‘Wham Kwok Han Jolovan (CA)’). 189 Above, n 76. 187 Heng

10 Topical Storm Approaching: Regulating Public Assemblies and …

231

clarified a number of issues concerning the interpretation of Article 14 of the Constitution. First, even though the Article is broadly worded, the Court emphasized that it does not follow that any law passed by Parliament that restricts freedom of assembly is constitutional. Such a subjective approach would render the right “wholly toothless” and would “undermine entirely the right to peaceably assemble”.190 Secondly, the Court disagreed with the High Court’s decision in Chee Siok Chin191 that when determining if a law contravenes Article 14 there is a “presumption of legislative constitutionality” which will not be “lightly displaced”.192 The presumption cannot be relied on to determine whether a law falls within the permitted restrictions on the right set out in Article 14(2), otherwise this “would entail presuming the very issue which is being challenged”.193 The Court then set out a three-step framework to be applied: (1) Does the impugned law restrict the right to assembly? (2) If so, is the restriction necessary or expedient in the interests of one of the grounds specified in Article 14(2)(b)? In this respect, a court may examine parliamentary material and other relevant documents to ascertain if Parliament considered it necessary or expedient to restrict the right, or the purposes for which the restrictive law was passed. (3) Finally, objectively speaking, does the restriction come within one of the Article 14(2)(b) grounds? A nexus between the purpose of the law and one of these grounds must be shown.194 Ultimately, the Court stated that it is “imperative to appreciate that a balance must be found between the competing interests at stake”, in this case “between the constitutional right to peaceably assemble and the interest of public order”.195 On the facts, the Court held to be constitutional the requirement imposed by the POA that permits from the Commissioner of Police must be obtained before public assemblies can be lawfully held. In particular, it found that section 7(2) of the Act strikes a “careful balance” between the right and the restriction imposed on the right—the Commissioner may refuse to grant a permit if there is reasonable ground for apprehending that one or more undesirable public order breaches set out in the section may happen. The Commissioner is not bound to dismiss an application for a permit but has a discretion as to whether a permit should be issued. To be welcomed are the holdings in Wham Kwok Han Jolovan that the presumption of constitutionality does not have the effect of conclusively causing restrictive laws to be regarded as being in line with Article 14(1), and that the courts must objectively determine whether such laws are in line with the right to assembly and strike a proper balance between this right and competing public interests. On the other hand, perhaps unsurprisingly, the Court did not apply a proportionality analysis when discussing 190 Id

at para 22. n 45. 192 Id at p. 603, para 49. 193 Wham Kwok Han Jolovan (CA), above, n 188 at para 26, quoting Court of Appeal (Singapore), Saravanan Chandaram v Public Prosecutor, judgment of 29 April 2020, [2020] 2 SLR 95 at para 154. 194 Id at paras 29–32. 195 Id at para 33. 191 Above,

232

J. T.-T. Lee

how it would determine this balance. We must wait to see if the approach set out in the Court’s judgment will lead to a more robust examination of whether restrictive laws infringe free speech and assembly.

References Barros A M F B, Carvalho C S, Montandon D T (2010) Commentary on the City Statute. In: Carvalho C S, Rossbach A (eds) The City Statute of Brazil: A Commentary. Cities Alliance and Ministry of Cities, Brazil, São Paulo, pp 91–118 Cheung E (2019) Hong Kong Protesters Cast ‘Dark Day’ over City’s Innovation Sector by Vandalising Smart Lamp Posts, Says Technology Chief Nicholas Yang. South China Morning Post, 26 August 2019 https://www.scmp.com/news/hong-kong/politics/article/302 4428/hong-kong-protesters-cast-dark-day-over-citys-innovation (accessed 14 November 2019; archived at https://web.archive.org/web/20191113074347/https://www.scmp.com/news/hongkong/politics/article/3024428/hong-kong-protesters-cast-dark-day-over-citys-innovation) De Smith S A (1964) The New Commonwealth and Its Constitutions Stevens, London Elangovan N (2020) Facebook Blocks Singapore Users’ Access to National Times Singapore Page, Calls Government Order ‘Severe’. Today, 1 June 2020 https://www.todayonline.com/singap ore/facebook-blocks-singapore-users-access-national-times-singapore-calls-government-ordersevere (accessed 15 June 2020) Fernandes E (2007) Constructing the ‘Right to the City’ in Brazil. Social and Legal Studies 16(2):201–219 Graham M, Shaw J (2017) An ‘Informational Right to the City’? New Internationalist, 8 February 2017 https://newint.org/blog/2017/02/08/informational-right-to-the-city (accessed 30 October 2019; archived at https://web.archive.org/web/20180906131446/https://newint.org/blog/2017/ 02/08/informational-right-to-the-city) Green B (2019) Smile, Your City is Watching You: Local Governments Must Protect Your Privacy as They Turn to ‘Smart City’ Technology. The New York Times, 27 June 2019 https://www.nyt imes.com/2019/06/27/opinion/cities-privacy-surveillance.html (accessed 14 November 2019) Harvey D (2008) The Right to the City. New Left Review 53:23–40 Heng S K (2019) Speech by DPM and Minister for Finance Heng Swee Keat at the ‘Building Our Future Singapore Together’ Dialogue on 15 June 2019. Prime Minister’s Office https://www.pmo. gov.sg/Newsroom/DPM-Heng-Swee-Keat-Building-Our-Future-Singapore-Together-Dialogue (accessed 12 May 2020; archived at https://web.archive.org/web/20200427151614/https://www. pmo.gov.sg/Newsroom/DPM-Heng-Swee-Keat-Building-Our-Future-Singapore-Together-Dia logue) Lee J T T (2014) According to the Spirit and not to the Letter: Proportionality and the Singapore Constitution. Vienna Journal on International Constitutional Law 8(3):276–304 Lee J T T (2016a) The Limits of Liberty: The Crime of Male Same-sex Conduct and the Rights to Life and Personal Liberty in Singapore: Lim Meng Suang v Attorney-General [2015] 1 SLR 26. Hong Kong Law Journal 46(1):49–70 Lee J T T (2016b) We Built This City: Public Participation in Land Use Decisions in Singapore. Asian Journal of Comparative Law 10:213–234 Lefebvre H (1968) Le droit à la ville [The Right to the City]. Éditions Anthropos, Paris Lefebvre H (1996) Writings on Cities (Kofman E, Lebas E (eds. and translators)). Blackwell, Oxford/Cambridge, Massachusetts

10 Topical Storm Approaching: Regulating Public Assemblies and …

233

Ng J S (2020a) Singapore Together Movement ‘a Cornerstone’ of Nation Building where Citizens, Leaders Find Common Cause: Heng Swee Keat. Today, 20 January 2020 https://www.tod ayonline.com/singapore/singapore-together-movement-cornerstone-nation-building-where-cit izens-leaders-find-common (accessed 12 May 2020) Ng J S (2020b) ‘Working with the People’: 4G Leadership will Partner S’poreans in New Ways to Shape Policies, Says DPM Heng. Today, 15 June 2020 https://www.todayonline.com/singapore/ working-people-4g-leadership-will-partner-sporeans-new-ways-shape-policies-says-dpm-heng (accessed 12 May 2020) Ng J S (2020c) OSC Project Led to Key Policy Changes, Helped Shape 4G Leaders’ Desire to Work with S’poreans: DPM Heng. Today, 16 June 2020 https://www.todayonline.com/singapore/oscproject-led-key-policy-changes-dpm-heng (accessed 12 May 2020) Patmore G (1998) Making Sense of Representative Democracy and the Implied Freedom of Political Communication in the High Court of Australia: Three Possible Models. Griffith Law Review 7(1):97–123 Purcell M (2017) The City is Ours (if We Decide It is). In: Shaw J, Graham M (eds) Our Digital Rights to the City. Meatspace Press, [sl] pp 30–33 Shaw J, Graham M (2017a) An Informational Right to the City? In: Shaw J, Graham M (eds) Our Digital Rights to the City. Meatspace Press, [sl] pp 4–5 Shaw J, Graham M (2017b) An Informational Right to the City? Code, Content, Control, and the Urbanization of Information. Antipode 49(4):907–927 Singh M P (1996) V N Shukla’s Constitution of India. Eastern Book Company, Lucknow/Delhi Soja E (2010) Seeking Spatial Justice. University of Minnesota Press, Minneapolis Stone Sweet A, Mathews J (2008) Proportionality Balancing and Global Constitutionalism. Columbia Journal of Transnational Law 47:72–164 Stone Sweet A, Mathews J (2017) Proportionality and Rights Protection in Asia: Hong Kong, Malaysia, South Korea, Taiwan – Whither Singapore? Singapore Academy of Law Journal 29:774–799 Tan D, Teng J S (2020) Fake News, Free Speech and Finding Constitutional Congruence. Singapore Academy of Law Journal 32:207–248 Tay P (Assistant Director (Media Relations), Singapore Police Force) (2008) Why WP Didn’t Get Permit for Event. The Straits Times, 9 September 2008 https://www.straitstimes.com/ST+Forum/ Story/STIStory_276601.html (accessed 12 March 2020; archived at https://web.archive.org/web/ 20081113150118/https://www.straitstimes.com/ST%2BForum/Story/STIStory_276601.html) Tham I (2018) ST Engineering Wins $7.5 m ‘Smart Lamp Posts’ Tender. The Straits Times, 13 October 2018 https://www.straitstimes.com/tech/st-engineering-wins-75m-smart-lamp-poststender (accessed 14 November 2019; archived at https://web.archive.org/web/20190823063056/ https://www.straitstimes.com/tech/st-engineering-wins-75m-smart-lamp-posts-tender) Thio L A (2012) Constitutional Principles. In: Thio L A (ed) A Treatise on Singapore Constitutional Law. Academy Publishing, Singapore 155–222 Yong C (2014) Police Turn Down Permit Application for ‘Pink Run’ LGBT Event. The Straits Times, 14 August 2014 https://www.straitstimes.com/singapore/police-turn-down-permit-app lication-for-pink-run-lgbt-event (accessed 12 March 2020; archived at https://web.archive.org/ web/20180927124839/https://www.straitstimes.com/singapore/police-turn-down-permit-applic ation-for-pink-run-lgbt-event)

Jack Tsen-Ta Lee taught at the School of Law, Singapore Management University (2008–2017) and was Deputy Research Director, Singapore Academy of Law (2017–2019), supporting the Law Reform Committee. He is a member of the Law Society of Singapore’s Public and International

234

J. T.-T. Lee

Law Committee. He researches public law, media law and heritage law. He has authored ‘We Built This City: Public Participation in Land Use Decisions in Singapore’ (2015) 10(2) Asian Journal of Comparative Law 213–234 and contributed to Constitutional Interpretation in Singapore: Theory and Practice (Jaclyn L Neo (ed), 2016) and Constitutional Change in Singapore: Reforming the Elected Presidency (Jaclyn L Neo & Swati S Jhaveri (eds), 2019).

Chapter 11

The City of London: Dominance, Democracy, and the Rule of Law? Paul Burgess

Contents 11.1 The City and the Not-City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 The City and Its Influence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.1 A (Brief) Historical View of London . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.2.2 The 2016 EU Referendum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 The Rule of Law Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.1 The Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3.2 Greater London’s Dominance and the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . 11.4 The City and the Rule of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

235 237 238 240 242 243 243 244 245

11.1 The City and the Not-City London has been, historically, the unchallenged cultural, political, and legal centre of power in the UK. Yet, despite its dominance, it was unable to dominate the processes associated with the UK’s departure from the EU. In this short comment, I argue that the inability of the city to dominate the not-city—the term I adopt to describe everywhere in the UK that is not part of the city as described here—can, and should, be seen in Rule of Law positive terms. For the majority of time following its founding around two millennia ago, London has been the most populous settlement in what is now the United Kingdom. From around the seventh century, various seats of political power began to agglomerate in the protean capital. And, by the thirteenth century, it dominated as the centre of legal influence. Throughout the seventeenth century, key events that shaped the country P. Burgess (B) Faculty of Law, Monash University, Melbourne, Australia e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_11

235

236

P. Burgess

for centuries played out a very short distance from the spot on which the settlement was first established. Subsequently, national domination became global dominance as the British Empire was controlled from London. The city’s massive population (and wealth) served as a catalyst for the goods and services created as part of the industrial revolution. No single location has influenced the state to the extent that London has in the past. Yet, despite its continued existence as the largest city, as the seat of legal and political power, and as the central location for business and tourism, London’s historical dominance has diminished. In Rule of Law terms, this is a good thing. In 2016, a UK referendum posed a simple question: Should the United Kingdom remain a member of the European Union or leave the European Union? As is well known, the majority of votes favoured not remaining a member of the EU. The national leave vote constituted approximately 52% of votes and remain votes constituted the other 48%.1 Unsurprisingly, this was not uniformly reflected across the nation. Greater London returned one of the strongest ‘remain’ votes.2 The Greater London area represents a not-insubstantial proportion of the UK’s population. The valid votes cast in the area represent more than 11% of the total votes cast in the referendum.3 In this area, the remain vote constituted approximately 60% of valid votes, and the leave vote 40%. When the Greater London votes are removed from the national vote, the not-city remain vote was 46.6% and the leave vote was 53.4%.4 The vast size of Greater London’s population, the difference in opinion when compared to the rest of the aggregated UK vote, and the relative strength of the view expressed illustrate the voting pattern difference is noteworthy. I point to these referendum-related figures and London’s historical status as a hub-of power to show that, despite the centralisation of power, government, and all national-level law-making for the UK in London, the vastly different view regarding the desirability of continued EU membership that predominated in Greater London was not able to impact the ultimate outcome. As will be expanded below, this stands in stark contrast to its historical ability to dominate; a direct form of democracy functions so as to buck the trend of historical dominance. In this comment, my aim is simply to illustrate (necessarily briefly) the historical dominance of the city and contrast this to the situation evident following the referendum. I suggest that direct democracy was able to breach the city’s general and historical dominance, before using the concept of the Rule of Law to show that there are real positives that flow from this process. 1 The

exact figures were 16,141,241 votes for remaining, and 17,410,742 votes for leaving. There were 33,551,983 valid votes from an electorate of 46,500,001 voters. Turnout was 72.2%. See: Electoral Commission 2019. 2 I explain the boundaries and meaning of ‘Greater London’ below. Even within Greater London there was variation. Some areas clearly voted ‘leave’. However, the overall percentage of the electorate in London that voted to remain was one of the highest. (Only Scotland and Gibraltar had higher percentages of remain votes.) For a useful summary, see London Datastore 2019a. 3 Precisely, they represent 11.256% (3,776,751 valid votes in Greater London, in relation to the 33,551,983 valid votes cast nationally. Electoral Commission 2019). 4 Derived from the raw data provided by the Electoral Commission. See Electoral Commission 2019.

11 The City of London: Dominance, Democracy, and the Rule of Law?

237

I do not, however, argue here that direct democracy, or even democracy more generally, has triumphed in this instance. Furthermore, and importantly, I do not seek to make an argument for or against Brexit. The point that I wish to make is that the breach of the city’s historically dominant position, whilst against the historical trend of the exercise of power in the country, represents a Rule of Law-positive outcome. By adopting a Rule of Law perspective, I argue that if London is not able to dominate (all of the time), then the UK’s Rule of Law landscape is enhanced. Due to the limitations imposed in this short comment, I provide a (very) brief history and a simple view of the referendum figures. I also do not delve deeply into much of the rich literature on ‘the City’ and London more specifically—I have left others to do this. Despite this, I hope my account provides a point for thought and discussion.5 Before going further, I must address the direct/non-direct democratic aspects of the processes I explore. I do not seek to draw an absolute connection between the City’s past dominance and its inability to dominate in the 2016 referendum; differences in kind separate the two processes. I also do not argue that—notwithstanding any benefits—any important decision must now be put to referendum and, therefore, the City’s historical ability to dominate has been lost. I simply use the 2016 referendum as a foil to the historical example to show the City is no longer able to dominate in at least one way. To make this argument, in the next section, Sect. 11.2, I outline (in a little more detail) the history of London’s concentration of power in the UK. In Sect. 11.3, I explore the contemporary picture through the lens of the three Rule of Law road signs: predictability; non-arbitrariness; and the equal application of the law. I conclude in Sect. 11.4 that, whilst some facets commonly attributed to the Rule of Law may not be enhanced, fundamental ideas—for example, the equal application of the law and a block on the arbitrary exercise of power—are enhanced through the check created by the relatively infrequent recourse to direct democracy. In doing so, I argue that the relative disjunction between the city and the not-city has resulted in a Rule of Law-positive outcome.

11.2 The City and Its Influence There are a number of regions that can lay claim to delineating the ‘City’ or ‘London’. For my argument, I will take this to be the area that is now governed by the Greater London Authority. I describe this as either the City or Greater London.6 The settlement’s origins are humbler than its contemporary form but, as I briefly explore below, a population has existed between two bends on the North bank of the River Thames to the East of the Fleet River (around the present location of London Bridge) in one 5 For

some examples of this work, see Travers 2003; James and Quaglia 2019.

6 This encompasses counties of Greater London and the City of London. My use of ‘the City’ in this

chapter is not reflective of the much smaller area of ‘the City of London’. My use of ‘the City’ in describing the much broader conurbation of London is adopted merely for explanatory convenience.

238

P. Burgess

form or another since Roman times. The settlement now occupying this site—whilst massively expanded—has influenced and dictated the direction to be adopted by the surrounding area, by England, and by the United Kingdom (and its empire) over a significant portion of that time. After explaining the history of its domination in the next section, I go on to explore a contemporary example where Greater London was not able to dominate: the 2016 EU referendum.

11.2.1 A (Brief) Historical View of London The settlement that became Greater London can trace its founding to the invasion of Claudius, who ruled from 41-54CE.7 The rationale for the settlement’s original location relates to geography: the tidal range of the estuary; the location for a crossing (originally a ford near the present location of Westminster) and subsequent position at the hub of the road network; the suitability of terrain for settlement (i.e. not marshy); and, crucially for the settlement’s substantive development, the ability to bridge the Thames with a permanent bridge later in the first century. The location of a Roman seat of power in London echoed the City’s subsequent rise to prominence. However, its rise was not instant. Londinium had a maximum population of around 30,000; perhaps only around 1% of the population of England and Wales.8 Any dominance as a trading centre diminished slightly before, in the later Middle Ages, London (re)established itself as a protean capital city. This was heralded by the location of Kentish Kings’ merchant hall around 670CE and the King of Mercia’s palace in the eighth century and was strengthened in the mid-eleventh century when Edward the Confessor established his palace in what is now Westminster. This helped to stabilise London as the seat of royal power that, over the following centuries, would solidify as administrative layers of governance agglomerated in the City. The influence of London—as a city—on the exercise of power was apparent as early as the thirteenth century. The Magna Charta is heralded by some to have constituted some of the earliest Rule of Law-like constraints on the exercise of power.9 By signing the document in 1215, King John confirmed London’s importance in at least three ways: first, by agreeing—in clause 17—that the location of the court of common pleas should not simply reflect the King’s current location, this made way for the court to be seated in London; second, the liberties and customs of London were specifically acknowledged in clause 13;10 and, third, clause 61 created a council of 25 barons that specifically included the commander of London’s 7 Several

sources have been used to provide this basic overview: Sheppard 1998; Barron 2004; Harris 1990; Besant 2013. 8 Sheppard 1998, p. 35. 9 See, for example, Krygier 2015; Endicott 2016; Fernández-Villaverde 2015. 10 Whilst other cities were also granted their liberties and customs, only London is specifically singled out. The Translated text reads: ‘And the city of London is to have all its ancient liberties and

11 The City of London: Dominance, Democracy, and the Rule of Law?

239

militia and the Mayor of London.11 Whilst the Magna Charta ultimately failed to completely curb the powers of the King, London’s influence was apparent. There was a subsequent sedentarisation of the exercise of power by the mid- to late-fourteenth century when Parliament’s meeting place was regularised at Westminster. In the revolutionary period of the seventeenth century, London played a central role in resisting the exercise of royal power; the Commonwealth government, and the relative importance of Parliament, were orchestrated and facilitated in the City. Other key events illustrating London’s fundamentality to the exercise of power include: the Popish Plot and the Exclusion Crisis; the reaffirmation of the City’s importance by James II’s restoration of the City’s ancient rights; and, William and Mary’s inclusion of London’s representatives when they summoned MPs that had sat in the previous Parliament. In the seventeenth century and beyond, the revolutionary movement was fuelled— and suppressed—by the printing and dissemination of pamphlets principally from within the capital.12 The dissemination of pamphlets, formed part of the cases against London based agitators and revolutionaries like John Wilkes who was arrested on a ‘general’ warrant.13 The ramifications of these and similar events can be seen in the seminal case of Entick v Carrington—a case considered by many to be the genesis of the Rule of Law in the UK.14 Once newspapers were established, Fleet Street— which had formed a natural boundary of the City for several centuries—became synonymous with journalism and what may now be seen as a ‘fourth branch of government’. Fleet Street, and the London press, still influence the country through the national media. As traditionally the largest population in the country, London has—by sheer weight of numbers—exerted influence beyond its boundaries. Around 1550, London’s population accounted for around 2.5% of England’s population; by 1700, this was around 11%.15 The population required a large volume of goods and services which, in turn, resulted in a further population influx. As a result, by 1800, over a million people lived within 10 miles of Westminster and by 1891, almost 20% of the entire population of England and Wales lived within Greater London.16 This percentage—that far exceeded that of equivalent capitals—became doubly important in the late-nineteenth century as the franchise expanded and the City’s representation

free customs, both on land and water. Moreover we wish and grant that all other cities, boroughs, towns and ports are to have all their liberties and free customs.’ See The Magna Carta Project 2019b. 11 This is also described as a suffix to the document. See Magna Carta Project 2019a. It is also suggested that the barons’ capture of London prior to the document being signed was instrumental in convincing the King to agree to the document’s terms. Sheppard 1998, p. 91 (fn 84). 12 For an excellent example of London’s influence, see Harris 1990. 13 Sheppard 1998, p. 252. See also Tomkins and Scott 2015. 14 King’s Bench UK, Entick v. Carrington, judgement of 2 November 1765. This case is a fundamental staple in teaching the Rule of Law in Public Law subjects across the UK. However, it is little known outside of the UK. See Burgess 2016; Tomkins and Scott 2015. 15 Sheppard 1998, p. 127 (fn 3). 16 Sheppard 1998, pp. 250–251 (fn 4), and p. 290 (fn 4).

240

P. Burgess

Table 11.1 Percentage vote share in 2016 EU referendum National vote

Remain

Leave

(Difference between leave and remain)

48.1

51.9

(3.8)

The city vote

59.9

40.1

(19.8)

The not-city vote

46.6

53.4

(6.8)

Source The author

within Parliament more closely reflected the population’s distribution.17 The population of Greater London in the twentieth century continued to rise and reached a high of a little over 8.6 million (21% of the population of England and Wales) in 1939.18 Whilst both the population and percentage decreased in following decades, the population of Greater London is now around 8.8 million people—around 13% of the UK population.19 The City has, through weight of numbers, the operation of economic forces, and direct proximate influence on the location of the exercise of power and decision making, historically dominated the UK’s direction over the vast proportion of the last two millennia. But, as we will see, its domination is not absolute or perpetual.

11.2.2 The 2016 EU Referendum Notwithstanding its status as the largest conurbation in the UK, Greater London’s population compared to the rest of the UK means that when (more) direct democratic processes are applied, the City cannot wholly dictate the national agenda. This was clearly illustrated by the 2016 referendum. Historically, a strongly-held view in the City would have, absent direct democratic processes, dominated the nation’s answer to the question posed; however, the City’s view, if the aggregate total of individuals’ votes can be reified in this way,20 was not able to direct the national agenda in 2016. I have already touched on some of the figures associated with the referendum. For ease, they are reproduced as percentages in Table 11.1.21 The national vote (as the overall percentage of valid votes cast across the UK) for leave and remain and the City vote for leave and remain are relatively well known. 17 In relation to voter reform—in 1832, 1884–5, and 1867 increasing MPs for the metropolitan area—see Sheppard 1998, pp. 296–97. 18 London population figures, from a variety of sources, are collated in these terms in the Appendices to Sheppard’s text: Sheppard 1998, sec. Appendix 1 and 2. 19 This is based on a population estimate at 2016. See London Datastore 2019b; Office for National Statistics 2019. 20 There are, expectedly, clear differences across the various Greater London electorates. For a visualisation, see: London Datastore 2019a. 21 Calculation has been required to obtain the percentages expressed in this paragraph. The data in the table and the following paragraphs are available in raw form at: Electoral Commission 2019; London Datastore 2019c.

11 The City of London: Dominance, Democracy, and the Rule of Law?

241

Yet, a simple comparison does not adequately convey the difference in opinion that existed between the City and the not-city because the national vote also incorporates the City vote. Accordingly, a not-city vote for leave and remain is calculated by subtracting the number of leave and remain votes cast in the City from those in the national vote. Within these data, we see the national vote reflects a desire to leave; however, the 3.8% difference between remain and leave votes does not evince a strong national desire. When the City and not-city differences are independently calculated, the City vote expresses a very strong desire to stay in the EU with a difference of nearly 20% between the remain and leave votes.22 The not-city vote expresses that region’s strong desire to leave with a difference of almost 7% between the remain and leave votes. When taken together, these differences reflect that there is both a difference in the broad desire whether to remain or leave and that there is a relative difference in the strength of that desire. When the relative strengths of feeling are compared, the strength of the City’s desire to stay dwarves the not-city’s desire to leave. Where the relative view of the City and the not-city is of interest, the difference between percentages of votes cast—for leave or remain (as the differences are the same regardless of which is examined)—in the regions is instructive. The difference is 13.3%.23 I will call this the regional difference. By considering the difference of opinion in this way, the scale of the difference becomes more apparent; there is a clear difference between the sentiments expressed by the two regions.24 When comparing the not-city vote with the national vote, it becomes apparent that the impact of Greater London’s overall remain vote was to shift the leave sentiment expressed by the not-city toward remain from 53.4, to 51.9%: a shift of 1.5%.25 I will call this the City impact. This is not an insubstantial impact where the leave vote was carried based on a 1.9% majority. The City impact was not, however, enough to dictate the result. This is, of course, due to the size of Greater London’s population (or the relative strength of feeling) being insufficient to have garnered a large enough City impact to have dominated the not-city. Even if the City’s population as a percentage of the nation had been at its peak (21% in 1939), and if the City had voted with the same desire as in 2016, then the outcome would not have been different. For the City impact to have changed the ultimate result, assuming the relative strengths of feeling remained unchanged, the City’s population would have needed to be a little over 25% of the nation’s population. Put another way, to achieve a City impact capable of changing the eventual outcome the voting population in the City needed to have 22 On any view, Greater London—together with other regions like Scotland that expressed a similarly strong opinion—sought to remain in the EU. Seven of the ten areas with the highest percentage of remain votes were in Greater London. 23 To clarify, this is either the difference between 53.4 and 40.1 (the leave votes for the not-city and City respectively), or 46.6 and 59.9 (the remain votes for the not-city and city respectively). 24 This difference would be even starker if City votes were contrasted with only the rest of England and Wales (and strong remain sentiments in Scotland and Northern Ireland are removed). 25 This is apparent when the difference between either the leave or remain not-city vote is compared to the leave or remain votes for the national vote; i.e. this is the difference between either 53.4 and 51.9, or between 46.6 and 48.1.

242

P. Burgess

more than doubled.26 This suggests there is, in any realistic population increase, no feasible way that the City can dominate—based on the strength of feeling expressed in the referendum—when recourse is made to a more direct form of democracy. What can be seen when the 2016 referendum is used as an example is that, contrary to its historical role, the City was not able to dominate the rest of the UK. Despite the strongly held desire to remain in the UK in the City, the referendum process—as a simple 50% + 1 carries-the-day approach—resulted in the City’s desire not being sufficiently impactful to dominate the rest of the country. Accordingly, what we can see is a relative lack of dominance that is illustrated by the 2016 referendum results when compared to historical precedent. Next, I consider the Rule of Law benefits relative to the example of the referendum and the historical way in which Greater London has dominated the UK’s direction. By considering the relative loss of Greater London’s impact and influence, I argue that I the imposition of the not-city’s direct democratic will on a previously dominant city can be seen in Rule of Law-positive terms.

11.3 The Rule of Law Benefits The potential benefits of the Rule of Law depend, obviously, on what the Rule of Law is taken to be. The Rule of Law is, however, a highly contested concept.27 Accordingly, and given the constraints of this short comment, I do not seek to engage in the debate regarding the conceptual boundaries of the idea. Instead, in what follows, I apply a broadly stated—yet, hopefully, uncontroversial—idea of what I will take the Rule of Law to be. I then explore the city’s dominance in terms of that Rule of Law idea.

26 The actual percentage of the national population that Greater London would need to reach is 25.45442%. This is calculated based on the valid votes and voting percentages in the City and notCity expressed above. It does not change if the increased percentage for the City comes from either simply adding voters to the City (more than doubling the valid votes in the City from 3,776,751, to 10,167,083) or if the national voting population is maintained and the percentage of valid votes between the City and not-City is merely altered (where the City voting population would need to be increased to 8,540,462). 27 In support of the idea that the Rule of Law is essentially contested, it is common to refer to Waldron’s article. Waldron 2002. Martin Krygier also identified this trend in Krygier 2016, p. 1. Notwithstanding any debate regarding its essential contestedness, it is clear its content is highly contested. Krygier 2014, p. 1. See also Burgess 2017; Burgess 2019.

11 The City of London: Dominance, Democracy, and the Rule of Law?

243

11.3.1 The Rule of Law The Rule of Law I discuss relates to a specifically (and peculiarly) Anglo-American concept that finds particular expression through a number of ‘usual suspects’— thinkers as diverse as Aristotle, Locke, Dicey, Hayek, Fuller, and Raz—that are frequently invoked to evidence what the Rule of Law is.28 Whilst their ideas are very different, common ideas like predictability, non-arbitrariness, and the equal application are commonly seen.29 I will use these to illustrate the concept’s meaning.30 Whilst this approach could be criticised, it enables a lot of analytic ground to be covered when ascertaining whether a particular process enhances or diminishes the Rule of Law’s operation. Accordingly, I will use these road signs to consider the relative Rule of Law benefits regarding the referendum and Greater London’s historical dominance.

11.3.2 Greater London’s Dominance and the Rule of Law Despite its historical role, the City did not dominate in 2016. The reason for this is alluded to above: the exercise of a more direct democratic process allows the views of the majority to trump that of the minority. And, whilst Greater London is the largest concentration of voters in any single conurbation in the UK, and even though they represented one of the strongest ‘remain’ voices, the City impact was insufficient to overcome the remain sentiment in the UK. In going beyond this—and in going beyond any pro- or anti-Brexit argument—a more interesting discussion can be found. In simplifying the situations described thus far, two processes exist: the historical process—in which Greater London was able to dominate future directions; and, the contemporary process—in which Greater London is not able to dominate future directions. Considering the relative Rule of Law benefits of these processes is the focus of the remainder of this comment. The City’s inability to dominate enhances the non-arbitrariness idea of the Rule of Law by ensuring power cannot be arbitrarily exercised by one region over the whole. Whilst this requires the partial reification of Greater London, the arbitrary exercise of power can be avoided when a single entity—either a region or an individual— is not able to make decisions on behalf of the whole. The Greater London region itself was not elected in any form of representative capacity; nor, as other similarly reified regions may say, does it represent the views of the not-city despite being a 28 Burgess

2019. for example, Locke 1988, II §135; Dicey 1979, pp. 188–198 and pp. 202–203; Aristotle 1981, para 1287aI. For secondary commentators reflecting on this, see, for example, Bedner 2010, p. 50; Krygier 2017, p. 39. 30 A rich literature exists regarding the Rule of Law’s elements. See Burgess 2017; Bedner 2010. The road signs arise in a large number of other usual suspects’ accounts. See, for example, those cited in note 29. 29 See,

244

P. Burgess

substantial (more than 10%) sample size. This much is clear from the difference in the referendum results and, in particular, the regional difference. Accordingly, regarding non-arbitrariness, the City’s non-domination through the referendum is Rule of Law-positive. Equal application of the law is not necessarily enhanced through non-domination; but equal application is not enhanced through domination. What I mean by this is clear through considering a situation envisioned by one of the usual suspects. Dicey describes what he sees as the two-tier system of laws in France. There, he suggests, servants of the state are not subject to the same laws as other members of society. Dicey sees this as a non-Rule of Law system.31 The elevation of City-people above not-city-people could reflect this two-tier system. In the historical form of dominance, or if the City was able to dictate the answer to a question like the one in the 2016 referendum, this would result in an outcome desired by one group being preferred over another’s. However, it does not reflect the specific operation of a law in a different way on the City/not-city. In this second sense, domination as explored here does not impact this aspect of the Rule of Law. Predictability is enhanced when domination is removed. The application of law should be predicable; it should not be subject to the whims of a particular person or entity. Predictability requires both that one can rely on an outcome matching the existing rules on the books and that rules will not be changed in the interim. The City’s domination, either in the way that it has historically or through an enhanced City impact in a referendum, increases the risks associated with both. This happens through giving a single institution (the City) more power relative to another (the notcity) which may facilitate the abuse of that power. Increasing the risk in this way can be seen, in the least, as a Rule of Law negative. In contrast, but for similar reasons, non-domination increases the prospects that the two predictability requirements will be satisfied; when one institution does not dominate another, change requires consent—or at least acquiescence—of the parties. Where parties actively participate and are actively involved in decision-making, the risk of increasing un-predictability in this sense therefore appears to be obviated. Hence, the City’s non-domination provides a more positive Rule of Law outcome.

11.4 The City and the Rule of Law In the preceding sections, I have argued that a Rule of Law-positive effect flows from the City’s current inability to dominate or dictate the direction of the rest of the UK. This has been couched in terms of direct democratic processes, in which the current dispersion of the current population forms the basis of the Rule of Law

31 Dicey

1979, pp. 328–29. In comparing the Rule of Law and Droit Administratif , Dicey takes issue with the French system.

11 The City of London: Dominance, Democracy, and the Rule of Law?

245

positive outcome.32 This conclusion may be nothing more than stating what may be seen as obvious in a Western liberal society: domination = bad; non-domination = good. However, there is benefit in the process of reaffirming this position in the contemporary and historical operation of the City. Considering the reasons why this obtains is beneficial. The Rule of Law, which is universally lauded as being a societal good, provides one such reason why domination by the City should not be seen as being generally of benefit;33 this facilitates comparison between a historical precedent and a contemporary event (if not a wider practice) and illustrates that a move of this sort—from a situation where domination by the City existed, to one where there is either no or a greatly reduced incidence of domination—is undoubtedly a Rule of Law positive. Further, if we are given reasons to suggest that where London is not able to dominate (all of the time), the UK’s Rule of Law landscape is enhanced. We see that predictability and a block on the arbitrary exercise of power are enhanced through the check created by the relatively infrequent recourse to direct democracy or the shift from dominance more generally. For these reasons, the imposition of the not-city’s direct democratic will on an historically dominant city can, and should, be seen in Rule of Law-positive terms.

References Aristotle (1981) The Politics (Sinclair T, Saunders T J (translators)). Penguin Books UK, London Barron C M (2004) London in the Later Middle Ages: Government and People 1200-1500. Oxford University Press, Oxford Bedner A (2010) An Elementary Approach to the Rule of Law. Hague Journal on the Rule of Law 2(1):48–74 Besant W (2013) History of London. CreateSpace Independent Publishing Platform, Scotts Valley Burgess P (2016) Should Entick v. Carrington Be on Our Rule of Law Radar? Jus Politicum 16:281–90 Burgess P (2017) The Rule of Law: Beyond Contestedness. Jurisprudence 8(3):480–500 Burgess P (2019) The Rule of Lore in the Rule of Law: Putting the Problem of the Rule of Law in Context. Hague Journal on the Rule of Law 12:333–361 Dicey A V (1979) Introduction to the Study of the Law of the Constitution. Palgrave Macmillan UK, London Electoral Commission (2019) Results and Turnout at the EU Referendum. https://www.electo ralcommission.org.uk/who-we-are-and-what-we-do/elections-and-referendums/past-electionsand-referendums/eu-referendum/results-and-turnout-eu-referendum. Accessed 18 September 2019 Endicott T (2016) Magna Carta 1215: A Glorious Failure Focus: The Past Present, and Future of Rule of Law. Frontiers of Law in China 11:204–14 Fernández-Villaverde J (2015) Magna Carta, the Rule of Law, and the Limits on Government. International Review of Law and Economics 47:22–28 32 I focus on direct democratic processes as this forms the core of the chapter. Non-direct processes, for now, must be left to one side. 33 See for example, Shklar 1987, p. 1. It is suggested that the ‘good vibrations’ associated with the Rule of Law have resulted in its use for a variety of ends. Waldron 2015, p. 61.

246

P. Burgess

Harris T (1990) London Crowds in the Reign of Charles II: Propaganda and Politics from the Restoration until the Exclusion Crisis. Cambridge University Press, Cambridge James S, Quaglia L (2019) Brexit, the City and the Contingent Power of Finance. New Political Economy 24(2):258–71 Krygier M (2014) Rule of Law (and Rechtsstaat). In: Silkenat J R, Hickey J E, Barenboim P D (eds) The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) Ius Gentium: Comparative Perspectives on Law and Justice. Springer International Publishing, Cham, pp 45–59 Krygier M (2015) Magna Carta and the Rule of Law Tradition. UNSW Law Research Paper No. 2015-76. https://papers.ssrn.com/abstract=2713610. Accessed 23 July 2018 Krygier M (2016) The Rule of Law: Pasts, Presents, and Two Possible Futures. Annual Review of Law and Social Science 12:199–229 Krygier M (2017) Tempering Power. In: Adams M, Hirsch Ballin E, Meuwese A (eds) Constitutionalism and the Rule of Law: Bridging Idealism and Realism. Cambridge University Press, Cambridge, pp 34–59 Locke J (1988) Two Treatises of Government (Laslett L (ed)). Cambridge University Press, Cambridge London Datastore (2019a) EU Referendum Results: A Demographic Breakdown. https://data. london.gov.uk/blog/eu-referendum-results-a-demographic-breakdown/. Accessed 18 September 2019 London Datastore (2019b) GLA Population and Household Projections. https://data.london.gov. uk/dataset/projections/. Accessed 18 September 2019 London Datastore (2019c) EU Referendum Results. https://data.london.gov.uk/dataset/eu-refere ndum-results. Accessed 18 September 2019 Office for National Statistics (2019) Overview of the UK Population. https://www.ons.gov.uk/peo plepopulationandcommunity/populationandmigration/populationestimates/articles/overviewo ftheukpopulation/november2018. Accessed 18 September 2019 Sheppard F (1998) London: A History. Oxford University Press, Oxford Shklar J (1987) Political Theory and the Rule of Law. In: Hutchinson A C, Monahan P (eds) The Rule of Law: Ideal or Ideology. Carswell, Toronto The Magna Carta Project (2019a) https://magnacarta.cmp.uea.ac.uk/read/magna_carta_1215/Suf fix_A. Accessed 17 September 2019 The Magna Carta Project (2019b) Clause 13. https://magnacarta.cmp.uea.ac.uk/read/magna_carta_ 1215/Clause_13. Accessed 17 September 2019 Tomkins A, Scott P (eds) (2015) Entick v Carrington: 250 Years of the Rule of Law. Hart Publishing, Oxford Travers T (2003) The Politics of London: Governing an Ungovernable City. Palgrave Macmillan, London Waldron J (2002) Is the Rule of Law an Essentially Contested Concept (in Florida)? Law and Philosophy 21(2):137–164 Waldron J (2015) The Rule of Law in Public Law. Cambridge University Press, Cambridge

Paul Burgess is currently a Lecturer at Monash University in Melbourne. His interdisciplinary work spans public law, constitutional theory, legal theory, and legal history. The unifying idea in his work is the concept of the Rule of Law. This—already broad—field of interest is combined with his research on the impact of artificial intelligence on legal systems and legal concepts. This means his recent publications span explorations of the Rule of Law in Ancient Rome, the meaning of the concept of the Rule of Law in domestic and international spheres, and artificial intelligence’s legal personhood.

Part III

Cities and the International Arena

Chapter 12

Accelerating Cities, Constitutional Brakes? Local Authorities Between Global Challenges and Domestic Law Barbara Oomen, Moritz Baumgärtel and Elif Durmu¸s

Contents 12.1 12.2 12.3 12.4

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ‘Accelerating Cities’ Using International Law to Address Global Challenges . . . . . . . . . International Support Fuelling the Rise of Accelerating Cities . . . . . . . . . . . . . . . . . . . . . Accelerating Cities and ‘Constitutional Brakes’: Examples from Domestic Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.1 Germany: Early Rulings Limiting the Competencies of Local Authorities . . . . . 12.4.2 Spain: Local and Regional Actions Pre-empted by the Constitutional Court . . . . . 12.4.3 Turkey: Local Authorities Litigating the Right to Water . . . . . . . . . . . . . . . . . . . . 12.4.4 France: Communes Invoking International Law to Strengthen Social Justice Locally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.4.5 The Netherlands: Questions of Local Authority Reach the European Level . . . . . 12.5 Discussion: Researching Local Authorities Invoking International Law before Domestic Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

250 251 254 256 257 259 260 262 264 266 269

Abstract Increasingly, local authorities around the world invoke international law to tackle global challenges autonomously while distancing themselves from national laws and policies, sometimes stimulated by international authorities. This chapter addresses the relevance of national constitutional arrangements for the way in which the resulting conflicts are, or are not, resolved. More specifically, how do domestic courts respond to ‘accelerating cities’ invoking international law as they oppose policies of the national government? Discussing cases from Germany, Turkey, France, B. Oomen · M. Baumgärtel (B) · E. Durmu¸s Faculty of Law, Economics and Governance, Utrecht University, Utrecht, The Netherlands e-mail: [email protected] B. Oomen e-mail: [email protected] E. Durmu¸s e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_12

249

250

B. Oomen et al.

the Netherlands and Spain, we offer an initial exploration of how such cases have the potential to challenge the constitutional order in federal and unitary states alike. At the same time, ‘accelerating cities’ are confronted with ‘constitutional brakes’— barriers in national constitutional and administrative rules. Our analysis suggests that national courts may permit harmless symbolic acts, but step down, or even create a ‘backlash’ in the case of more consequential actions. Given the potential in local engagement with international law, and the rise of the phenomenon, it is urgent to set up systematic and detailed investigations and comparisons of the dynamics of local government law in different countries and how they are shaped by an invocation of international law in general, and human rights law in particular. Keywords Cities · Health care · International law · Local authorities · Multi-level constitutionalism · Undocumented migrants

12.1 Introduction With cities emerging as important actors in addressing global challenges ranging from climate change to migration,1 some of their local authorities have begun to invoke international law in order to distance themselves from national laws and policies. New York’s city plan to implement the Paris Agreement that the United States withdrew from temporarily forms a case in point.2 Predictably, such an invocation of international law by local authorities may result in a conflict with national governments. As local authorities are not recognized within international and European law as formal actors—and thus, for instance, lack standing with international monitoring bodies and the European courts—the consequence has frequently been a deadlock that has to be resolved nationally, for instance in the highest national courts.3 Against this background, this chapter explores the relevance of national constitutional arrangements for the way in which such conflicts are, or are not, resolved. How do domestic courts respond to ‘accelerating cities’ invoking international law in a conflict with the national government? We propose the term ‘accelerating cities’ as shorthand for a much wider range of local (and at times other subnational) authorities and regions that are considered lower levels of government in a wide variety of constitutional dispensations. What is at stake in such conflicts is substantial, as it concerns local governments pushing the boundaries of their competences and seeking to take a leading role by meeting internationally agreed standards and thereby addressing the global challenges of our times such as migration, inequality and climate change. In order to explore this rather uncharted territory of ‘international local government law’, this chapter first sets out in detail what we understand to represent a rise 1 See,

amongst others, Acuto 2013, Barber 2013, and Blank 2006.

2 See https://www1.nyc.gov/assets/sustainability/downloads/pdf/publications/1point5-AligningNYCw

ithParisAgrmt-02282018_web.pdf, last accessed 30 August 2020. 3 On the ‘invisibility’ of local governments internationally, see Nicola 2012 and Oomen and Baumgärtel 2018a.

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

251

of ‘accelerating cities’.4 Next, it shortly describes the explicit attention and support that a range of international institutions has recently given to both the responsibility of local authorities to implement international law and their autonomy to do so. Subsequently, we turn to the fundamental tension that arises when local authorities (seek to) comply with the international legal obligations entered into by their national governments, even if they cannot turn to international judicial institutions to resolve the deadlock that arises. On the basis of a number of specific instances, we inquire how constitutional set-ups and domestic legislation influence the degree to which local authorities are able to follow an interpretation of international arrangements that is different from the national stance. The basis for this exploratory study are five case studies from Europe—Germany, Spain, Turkey, France and the Netherlands— which have been chosen based on the prominence of the examples of diverging local authorities as well as their variance in terms of local government law, which reveals certain comparative insights even if these are preliminary in nature. We close this chapter with a critical discussion that formulates a number of hypotheses regarding the interplay between ‘accelerating cities’ and the ‘constitutional brakes’ which arise in various countries, thereby setting out a research agenda on the topic.

12.2 ‘Accelerating Cities’ Using International Law to Address Global Challenges Over the past decades, local governments all around the globe have started to claim a leading role in addressing global challenges such as those laid down in the Sustainable Development Goals. Whether it concerns migration management, the realization of human rights or strengthening sustainability, local authorities have started to develop their own agendas, with objectives that are sometimes (though not always) more ambitious than those held by the national government.5 In other words, where national governments merely talk the talk, cities decide to walk the walk.6 Such ‘accelerating cities’ come in many shapes and forms, and often adopt evocative labels ranging from Cities of Refuge, Fearless Cities, Solidarity Cities, Child Friendly Cities, Sanctuary Cities to Cities for Climate Protection, or simply Sustainable Cities. Despite the immense variety of such cities and their networks, it is still possible to offer some general observations on what causes cities to ‘accelerate’ and how they do so in a multi-level context. Where it concerns cities specifically, part of the explanation for ‘urban acceleration’ lies in the fact that they can take the lead in addressing global issues. First, they 4 The

term is derived from Frug and Barron 2006. for instance, on local action in the field of human rights, Oomen et al. 2016; for local action in the field of migration, Bendel et al. 2019; Glorius and Doomernik 2017; Zapata-Barrero et al. 2017; and for climate change Aust 2015; Kern and Bulkeley 2009. 6 It is important to keep in mind that cities are not necessarily more proactive or effective in tackling global challenges, as is discussed critically in Aust 2015. 5 See,

252

B. Oomen et al.

can do so because of their size: in 2010, the world’s urban population surpassed the rural population, and the UN estimated that by 2050 68% of the world would live in cities.7 They often also have significant resources at their disposal: many of the world’s global cities have budgets that equal those of small states, and access to both the information and the capital needed to steer their own course.8 But even smaller local governments can act on global issues because they, likewise, increasingly have the formal competencies: since the 1990s, global decentralization efforts have left local authorities with a formal responsibility for many of the domains in which global challenges can be met, like housing, education and employment. In addition, an increasing number of local governments—big and small—want to take the lead on global issues. Spurred by publications such as Benjamin Barber’s monograph If Mayors Ruled the World, their actions involve an implicit or explicit critique of national inability to act on pressing problems that require concerted action.9 As such, accelerating cities do not only seek to undertake action locally but also nationally and internationally.10 Of course, some local governments will be more prone and able to accelerate than others, and a large part of the upcoming social science literature on this ‘local turn’ is concerned with explaining why some cities start moving while others do not. Sabchev, on the basis of literature that focuses on acceleration in the field of refugee welcome and integration, first emphasizes the importance of local institutional opportunity structures such as laws, policies, political parties, local and transnational networks.11 Next, he sets out the non-institutional opportunity structures, and the relevance of civil society, local universities and private sector actors in explaining why some cities deviate and others do not.12 In addition to these actors, there are also structural factors at play such as the amount of available funds, the labour and housing market conditions and the availability of necessary services.13 A final and often forgotten set of explanatory variables lies in the discursive opportunity structure: the role of local identity, public imaginaries and the story that a city tells about itself.14 A factor that is hardly addressed in this literature, however, is the issue at the heart of this chapter: how differing national constitutions and legislation and the formal division

7 https://www.un.org/development/desa/en/news/population/2018-revision-of-world-urbanization-

prospects.html, accessed 25 October 2019. for a wider discussion Hudson 2010; Sassen 2006. 9 Barber 2013. 10 See, for instance, Marcenko’s 2019 discussion of local support for introducing the Right to the City in the UN Habitat III. 11 See Sabchev 2018, available from https://citiesofrefuge.eu/publications/comprehensive-relati onal-model-study-local-responses-arrival-and-settlement-forced. There is more and more literature on the relevance of such city networks, such as Caponio 2019; Davidson et al. 2019; and Oomen 2020. 12 On the role of civil society, for instance, Triviño-Salazar 2018. 13 See for instance Ambrosini and Van der Leun 2015 and Filomeno 2016, p. 6. 14 See, for instance, Marchetti 2020 on the narratives employed by Italian cities concerning migration. 8 See

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

253

of power they entail facilitate or hamper cities that seek to accelerate in a drive to address global challenges.15 Here, it should be set out that such processes of acceleration can make use of a wide range of mechanisms, in which the law often only plays a minor role. Generally, cities can seek to advance discursively, in practice or in laws and policies, in all these cases, either individually or together with other cities—nationally and transnationally. A ‘mere’ discursive acceleration takes place when local leaders explicitly invoke global goals in speeches or demonstrate normative engagement with international issues by adopting non-binding local resolutions or in signing international declarations. The choice of many cities to speak of a climate emergency instead of referring to global warming is a case in point.16 Such speech acts can, be need not, be coupled to more practical actions to work towards global goals. A next step is the adoption of actual laws and policies which explicate and refine the ambitions and provide them with a normative basis. Such a normative basis can either be derived from lex lata, i.e. existing international law (the scope of this chapter) or resemble international law in form or substance. In terms of process, cities increasingly meet in virtual replicas of intergovernmental fora, which sometimes run parallel to them: during the 2018 Intergovernmental Conference to adopt the Global Compact for Safe, Orderly and Regular Migration, for instance, the Mayoral Forum on Mobility, Migration and Development met in the same town of Marrakech.17 In such fora, networks of mayors and other city officials set standards and agree on monitoring mechanisms strongly following the form of international law. In terms of substance, they also replicate the language on international law in setting out new rights, such as the ‘right to the city’ discussed elsewhere in this Yearbook. This new right has by now been codified in a wide variety of local ordinances and regulations and is increasingly recognized nationally and internationally.18 Within this whole amalgam of soft law and hard law mechanisms for acceleration, this chapter zooms in on those cities using lex lata, existing and binding international agreements to decouple their policies from those of the national government as they, to keep with the metaphor, try to ‘go the extra mile’.19 In addition, we focus on the cases in which such decoupling results in a conflict with the national government. To be sure, this need not be the case: in many instances, local investment in meeting global goals is in line with local competencies and discretion. In many cases, the interests of local and national actors will also be aligned. In others, however, the multilevel context of decision-making generates a tension between the national government’s understanding and implementation of its own international obligations and local 15 See,

however, Hirschl 2020 for a rare but critical discussion of these aspects. October 2018, 188 jurisdictions in 18 countries had declared such an emergency: https:// iclei.org/en/media/iclei-members-are-leading-the-climate-emergency-movement, last accessed 28 October 2019. 17 Oomen 2020. 18 See Chueca 2016. 19 The term decoupling is derived from the public policy literature, most notably Scholten 2015. 16 In

254

B. Oomen et al.

governments’ grasp of, and will to implement such obligations, often supported by international and supranational organisations.20 In order to properly assess the role of these organizations, we now briefly turn to the way in which they have related to these accelerating cities.

12.3 International Support Fuelling the Rise of Accelerating Cities As they seek to invoke international law to meet internationally agreed standards, local authorities have increasingly received support from international and supranational organizations. These have at times come to reach out directly to local authorities, and to stimulate the formation of local authority networks dedicated to specific global goals like children’s rights, sustainable development goals or human rights in general. Moreover, they have drawn up a wide variety of resolutions, reports, policies and other forms of—mostly—soft law in which they stress the need for human rights awareness by local authorities, explicate their responsibility to act upon the relevant global goals, as well as, in the most progressive cases, their autonomy to act upon them. In order to show the degree to which ‘the international’ fuels local acceleration, this section reviews a number of these instruments. Within the United Nations, the Human Rights Council formally started to consider the role of local government in the promotion and protection of human rights in 2013.21 This resulted in a number of resolutions and reports, which have also increasingly emphasized the Sustainable Development Goals.22 In 2015, an Advisory Committee stressed the need to develop guiding principles on local government and human rights, in order to clarify the role of various actors and institutions in human rights protection and promotion.23 Additionally, in 2019, the Office of the High Commissioner for Human Rights issued a research-based report showing the wide variety of instances of local governments taking human rights initiatives and working towards the Sustainable Development Goals.24 It emphasized the role of the UN as a ‘convening power’ to provide space for local government discussions 20 The

term multilevel government is derived from EU Studies, most notably Hooghe et al. 2001. It results in a situation of constitutional pluralism (Avbelj and Komárek 2012; Maduro 2009) of which the current topic of discussion is a manifestation. 21 By means of UN Human Rights Council Resolution 24/2. Local government and human rights, A/HRC/RES/24/2, of 8 October 2013, which in turn built upon work by its advisory committee, with the mandate repeated by means of UNHRC Resolution 27/4 of 25 September 2014. 22 UN Human Rights Council Resolution 33/8. Local government and human rights, A/HRC/RES/33/8, of 29 September 2016. 23 UN Human Rights Council, Role of local government in the promotion and protection of human rights—Final report of the Human Rights Council Advisory Committee, A/HRC/30/49, of 7 August 2015. 24 Local government and human rights Report of the United Nations High Commissioner for Human Rights, A/HRC/42/22, of 2 July 2019, as discussed in the Human Rights Council in September 2019.

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

255

on these themes.25 It also pointed to the challenges faced by local governments in promoting and protecting human rights, such as the lack of autonomy, difficulties in liaising with other levels of government, financial constraints and changing agendas of national governments.26 In conclusion, it held that central government might have the primary responsibility for the promotion and protection of human rights, but that ‘local government has an important complementary role to play’, subsequently calling for increased involvement of local government in human rights mechanisms and for strengthening their awareness of the themes at hand.27 This emphasis on the importance of awareness, on local governments’ responsibilities and on the need for autonomy is also found in the work of treaty monitoring bodies.28 Likewise, UN special rapporteurs have not only come to meet with local governments, but to also address them directly.29 Specialized UN bodies have also begun to stress the importance of local authorities over the past years, providing them with platforms to meet and reaching out to them directly. Such interest comes out of an iterative process, in which local authorities strive to be recognized and to influence international processes of standard-setting. UN-Habitat, for instance, paid an unprecedented amount of attention to local governments in its 2016 New Urban Agenda and followed their input in recognizing the right to the city.30 Whilst recognizing the role of countries’ national legislation, it also committed for the first time to ‘strengthening the capacity of subnational and local governments to implement effective local and metropolitan multilevel governance, across administrative borders’.31 Concerning the climate crisis, the 2016 Paris Agreement recognized that ‘adaptation is a global challenge faced by all with local, subnational, national, regional and international dimensions’.32 In the field of migration, the 2018 Global Compact for Safe, Orderly and Regular Migration explicitly mentioned the role of local authorities as key partners.33 The UN interest in strengthening local government awareness, responsibility and autonomy in dealing with global challenges is relatively recent and builds upon efforts undertaken in Europe. In the Council of Europe (CoE), for instance, the Monitoring Committee of Local and Regional Authorities started to explicate the role of local 25 Ibid.,

para 49. para 51. 27 Ibid., paras 61 and 65. 28 See, for instance, the recommendations of the Committee on Economic, Social and Cultural Rights to Sweden in E/C.12/SWE/CO/6, para 8. Other treaty monitoring bodies have emphasized the need for participation of ethnic minorities, persons of African descent and women in local government; for an overview, see A/HRC/42/22 para 43. 29 See, for example the Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Leilani Farha, A/HRC/28/62, 22 December 2014. 30 (Habitat III, 2017), United Nations, Habitat III, New Urban Agenda, 2017. 31 Ibid., para 90. 32 United Nations, Paris Agreement, FCCC/CP/2015/L.9, as adopted 15 December 2015. 33 UNGA, Global Compact for Safe, Orderly and Regular Migration, A/RES/73/195, 19 December 2018, para 44. 26 Ibid.,

256

B. Oomen et al.

and regional authorities in fields like education, housing, health, the environment and law and order in 2010, and the relevance of human rights to all these fields.34 It called for awareness-raising, but also for the setting up of structures to review local human rights implementation.35 This was followed by the development of indicators for considering human rights at local and regional level.36 In 2019, it published a handbook depicting local authorities as ‘important actors at the forefront of human rights protection’ and setting out local responsibility in terms of non-discrimination.37 Focused on obligations specifically, it highlighted that human rights are part of their competencies and that non-compliance ‘can trigger national and international legal consequences’.38 The process of explicating local responsibilities also takes place in EU bodies, such as the Fundamental Rights Agency (with its vision of ‘Joined up Governance’39 ), the Committee of the Regions,40 and in setting the EU’s Urban Agenda. As international and supranational bodies emphasize the importance of local autonomy in attaining these goals, existing instruments such as the European Charter of Local Self-Government take on renewed importance.41 In short, there is a general trend in international and supranational organizations to not only stimulate an awareness amongst local authorities of their role in meeting global goals, but also towards explicating their autonomy to act upon obligations of international law. The next section will provide some examples of local authorities acting upon this trend in such a manner that it leads them to a conflict with the national government.

12.4 Accelerating Cities and ‘Constitutional Brakes’: Examples from Domestic Case Law We will now consider a number of examples starting with a classic case that arose in Germany, a federal state, before turning to instances in Spain (as a quasi-federal country) and finally in more unitary states like Turkey, France, and the Netherlands. As stated, the choice for these specific countries in this explorative study is based on the prominence of the legal cases and the fact that they have therefore also been relatively well-documented in scholarship. Moreover, the states also display a significant variance in terms of their constitutional arrangements, which enables us to set 34 See

for an overview of the documentation, Congress of Local and Regional Authorities 2018.

35 Council of Europe Congress of Local and Regional Authorities, Recommendation 280 (2010), as

revised 2011, and Resolution 296 (2010) revised, at 5. 36 Molin 2011. 37 Council of Europe 2019. 38 Ibid., p. 17. 39 EU Fundamental Rights Agency 2012. 40 See, for instance, Levarlet et al. 2019. 41 Council of Europe, European Charter of Local Self-Government, ETS no. 122, 1985, as ratified by all Council of Europe member states.

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

257

out some interesting (albeit only preliminary) comparative observations. They also have a combined population of almost 300 million people, which illustrates the potentially broad impact of accelerating cities confronting constitutional brakes. Finally, it should be mentioned that there certainly are other examples that could not be covered due to the limited scope of this chapter. In Italy and Switzerland, for example, one can find similar struggles between sub-national entities and national governments, again with varying outcomes in national courts.42

12.4.1 Germany: Early Rulings Limiting the Competencies of Local Authorities Controversies surrounding ‘local foreign policy’ (Kommunale Außenpolitik) in Germany show that local authorities have for a long time been confronted with constitutional barriers to their autonomy.43 The potentially relevant constitutional provisions are in this context Articles 28(2) and 32 of the German Basic Law: the prior guarantees the right of municipalities (Gemeinde) to local self-government (gemeindliche Selbstverwaltung) whilst the latter establishes the conduct of foreign relations as a principally federal competency, with certain limited competencies for the Länder, of which municipalities form a legal part, insofar as it concerns consultation and their own power to legislate.44 The resulting legal framework arguably provides a significant though nonetheless circumscribed space for local authorities to act at the international level, with two seminal decisions of the Federal Administrative Court (Bundesverwaltungsgericht) being crucial in setting out their constitutional dispensation.45 Both shall be briefly accounted for at this point. The two decisions both hail from 1990 and concerned to initiatives by the two cities of Munich and Fürth to join an international movement against nuclear weapons.46 More specifically, the City of Fürth joined the international network ‘Mayors for Peace’ that the cities of Nagasaki and Hiroshima had created by the end of the 1980s. This decision was challenged by the government of Mittelfranken, which is a part of the Land Bavaria, as beyond the competencies provided by the German Basic Law. The Federal Administrative Court disagreed, clarifying that concluding inter-city partnerships, including at the transnational level, was an inherently municipal activity in character and thus within the scope of Article 28(2) of the Basic Law.47 In addition, it could not be construed as falling within Article 32 of the Basic Law given the fact that local foreign policy was not generally considered to be a 42 See

Piccoli 2016 and Piccoli 2018. a detailed recent analysis, see Aust 2017. 44 Grundgesetz, Articles 28(2) and 31(1–3). 45 Aust 2017, pp. 115–118. 46 Aust 2017, p. 115. 47 BVerwGE 87, 237, 238. 43 For

258

B. Oomen et al.

part of foreign policy,48 which the provision construes rather narrowly as encompassing only the relations between the classical subjects of international law.49 If this decision taken alone suggests a very broad competency for municipal authorities to engage internationally, it finds its limits in the decisions concerning City of Munich, which was handed down on the same day.50 Here, the Court was confronted with the question whether Munich could declare itself a ‘nuclear-free zone’, which it answered in the negative: touching upon federal defence and foreign policy considerations, the measure required proof of a specific relation to local considerations that was not given in the present case.51 Looking at both outcomes combined, Aust concludes that the resulting constitutional dispensation is characterized by ‘a certain ambivalence’ where the local level is equipped with potentially far-reaching authority regarding symbolic measures (such as entering into transnational networks) while it is far more restrictive as regards policies that would have tangible political consequences.52 International law arguments were not put forward in these cases, which is unsurprising given their relatively early date and the fact that they did not raise any specific issues of international law. Several other potentially relevant principles can be deduced from German doctrinal literature and case law: for example, local authorities as legal organs of the Länder are likely bound by principle of loyalty (Bundestreue),53 which implies, for instance, that they cannot undermine foreign policy objectives formulated at the federal level.54 At the same time, border localities in particular enjoy some constitutional latitude according to Article 24(1) of the Basic Law to delegate local competencies to institutions dedicated to the ‘neighbourly’ solution of cross-border problems.55 To sum up, the German constitutional system formulates a broad set of relatively open principles that create some meaningful dispensations for local authorities especially where specifically local issues are at stake. Yet, it also circumscribes their role vis-à-vis the federal state, leaving a grey zone of potentially (but not necessarily) legitimate local action that federal courts will have to clarify if municipalities continue or even expand their engagement at the global level. It is noteworthy in this context that the German legal system does not know a political questions doctrine that would defer foreign policy matters to the executive.56

48 Aust

2017, p. 240. 2017, pp. 74–75. 50 Aust 2017, p. 117. 51 BVerwGE 87, 228, 231. 52 Aust 2017, p. 118. 53 BVerfGE 8, 122. 54 Aust 2017, p. 127. 55 Aust 2017, pp. 133–134. 56 Folz 2011, p. 244. 49 Aust

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

259

12.4.2 Spain: Local and Regional Actions Pre-empted by the Constitutional Court The German cases were related to the international activities of municipalities. Increasingly, however, local authorities also directly invoke international law to support desired local policies. One telling example is the semi-federal country of Spain, which saw a stand-off with a ‘glocal’ interpretation of international law on the one side, and a national interpretation seconded by courts on the other.57 Here, the litigants were undocumented migrants and those representing them, and the right at stake in the Spanish disputes between the local and the national revolved around the right of access to health care. The issue became contentious with the passing of Royal Decree 16 of 2012, a piece of legislation that held that non-nationals needed to be registered in order to access health care. The Decree, an austerity measure responding to the country’s fiscal woes, substantially redefined the earlier policy of universal access, limiting emergency care to pregnant women, children under 18, asylum seekers and victims of human trafficking.58 A number of subnational authorities and cities protested and continued to offer such care. In response to the Decree, 12 out 17 autonomous regions passed specific laws and departmental directives aiming to continue to provide universal access.59 This decoupling can be understood against the Spanish background of a semi-federal State in which many subnational authorities (most notably the Basque country and Catalonia) have long sought to ‘decouple’ their policies from those of the national government in a wide variety of fields. Barcelona might well be the most famous instance of this, as one of Europe’s first and most active human rights cities with clear progressive policies on migration and integration.60 In Barcelona and elsewhere, the continuation of access to health care for undocumented migrants was thus founded on the basis of international human rights law. As in the other countries discussed, the disputes between local and subnational authorities and the State eventually made it to the Constitutional Court. This Court, for one, nullified Basque legislation in which the Autonomous Region guaranteed access to health care for those excluded by the 2012 Decree, in particular undocumented migrants, and paid for this from its own budget.61 A divided Court ordered that it 57 In this context, the term ‘glocal’, as a combination of global and local, seeks to signify the way in which citizenship in a given locality and the rights that it has to offer become shaped in the permanent interplay between international, national and local authorities. It highlights that developments at the local level are constitutive of what happens globally, and the relationship between the global and the local is dialectical rather than unidirectional (Bauman 1998; Oomen 2018; Papisca 2011; Randeria 2003). 58 Peralta-Gallego et al. 2018. 59 CESCR 2017. Peralta-Gallego et al. 2018 offers a full overview of the mitigating legislation passed, in the end, in 15 out of Spain’s 17 autonomous regions. 60 On Barcelona as a human rights city, see Grigolo 2011. More specifically on Barcelona’s policies towards migrants: Agustín and Jørgensen 2019; Gebhardt 2016. 61 Constitutional Court (Spain), 134/17, judgement of 16 November 2017, published in Boletin Official d’Estado, 20 December 2017, 15179.

260

B. Oomen et al.

was the exclusive competency of the State to regulate basic rights in order to ensure the equality of all Spaniards, and that the Autonomous Region was not allowed to expand these rights following the international interpretation. In a separate case, a decree passed by the Valencian Community was also nullified.62 This, in turn, led to concern with the CESCR, which, in its Concluding Observations on Spain, responded by emphasizing that ‘decentralization and autonomy can encourage implementation of the Covenant’ and that it remained ‘concerned at the persistence of certain unjustifiable disparities between the different autonomous communities, which impede the full enjoyment of some Covenant rights by persons in some of those communities’. In addition, it highlighted that ‘certain Constitutional Court decisions prevent the autonomous communities from granting, by means of their own resources, fuller protection for Covenant rights than that provided at the national level, finally adding that ‘[u]niform, national solutions are welcome when they promote the progressive realization of economic, social and cultural rights, but are of concern to the Committee when they hinder such progressive realization’.63 Whereas the Constitutional Court had implicitly cautioned against ‘accelerating cities’ in emphasizing the importance of equal treatment of all Spaniards, the CESCR made the opposite argument in urging Spain to ‘reduce unjustifiable inequalities between the autonomous communities with regard to the enjoyment of economic, social and cultural rights, by improving the enjoyment of those rights in disadvantaged regions, while not impeding the efforts of individual autonomous communities to provide, by means of their own resources, fuller protection for certain rights within their territory’.64 Here, as in many such cases, the stand-off remains, pushed into the realm of pragmatic solutions, unseen actions, and unclear policies. To the detriment of the people concerned, it has not been fully resolved.

12.4.3 Turkey: Local Authorities Litigating the Right to Water Of course, Germany is a federal state, and Spain is characterized as semi-federal. Over the past years, however, instances of local authorities invoking international (human rights) law have come up in many unitary States, such as Turkey. Here, the case revolved around the right to water. In the municipality of Dikili, a local government representing a town of 44,000 in the province of Izmir, leading officials were charged with ‘abuse of power’ by a prosecutor in April 2008 following the complaint of an auditor of the Court of Cassation regarding the distribution of the first 10 tons of tap water per household free of charge, a 50% discount for local government employees, and a city council decision to forgive citizens’ debt in interest 62 Constitutional

Court (Spain), 145/17, judgement of 14 December 2017. Concluding Observations on Spain, E/C.12/ESP/CO/6, of 25 April, para 11 in referring to Articles 2(1) and 28 of the ICESCR. 64 Ibid., at 12, in also referring to a previous recommendation (E/C.12/ESP/CO/5, para 9). 63 UNCESCR,

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

261

rates for unpaid water bills.65 The decisions of the municipality were based on the one hand on an understanding of water as a human right, along with many other socially progressive decisions such as free public transport, cheap bread produced by municipality-owned bakeries, as well as medical examinations for 1 Turkish Lira (0.15 Euro-Cents) at the Municipal Health Care Centre.66 On the other hand, the municipality sought to encourage households to use no more than 10 tons of water per household, in an attempt to combat climate change and water insecurity in the region.67 The case in the Dikili Criminal Court of First Instance was against the then Mayor Osman Ozguven, the former Mayor Yuksel Ucar, as well as 18 former and current city council members, and continued for two years.68 The legal dispute concerned two pieces of domestic legislation that (a) set a minimum profit rate of 10% as a standard for municipal service provision, and (b) prohibited public bodies to make discounts or provide free services unforeseen in the law.69 Throughout the legal proceedings, the left-wing Mayor and his colleagues employed a discourse of water as a human right, and invoked the European Charter of Local Self-Governance, which Turkey has ratified with a number of limitations, as well as international legal instruments containing the right to water.70 In addition to this, the accused made public statements throughout the process that local governments were public institutions and not businesses, so their main rationale in decision-making should be public benefit.71 A claim that the prosecution was a violation of the constitution and a request for it to be seen before the Turkish Constitutional Court was also brought forward and rejected. The municipal officials argued that the national government was transgressing into the jurisdiction and autonomy of local government competencies, violating multiple clauses of the Constitution, including the provision that the Turkish Republic is a “Social State”, Article 127 of the Constitution on local government competencies, as well as the European Charter, which, being a ratified treaty, according to the Turkish Constitution has the status of law, and cannot be challenged on constitutionality.72 All of those charged in the case were acquitted by the Court in 2010 upon the Prosecutor’s request, where the latter stated that “no practice undertaken for public good can be considered a crime”.73

65 Gultekin

2008. 2008. 67 Gultekin 2008. 68 Cumhuriyet 2010. 69 Cangi 2011, p. 66. The Domestic Legislation are the Law Nr. 2560 titled “˙Istanbul Su ve Kanalizasyon ˙Idaresi Genel Müdürlü˘gü Kurulu¸s ve Görevleri Hakkında Kanun”, Article 23; and Law Nr. 4736 Kamu Kurum Ve Kurulu¸slarının Ürettikleri Mal Ve Hizmet Tarifeleri ˙Ile Bazı Kanunlarda De˘gi¸siklik Yapılması Hakkında Kanun, Article 1, adopted 19 January 2002. 70 Cumhuriyet 2010; Gultekin 2008. 71 Bakircay 2008. 72 Bakircay 2008; Constitution of the Republic of Turkey, Articles 2, 5, 90 and 127. 73 Cumhuriyet 2010. 66 Gultekin

262

B. Oomen et al.

As cases before courts of first instance are not published in Turkey, we do not have access to the full decision of the Court. However, from a summary of the decision, we understand that the Court based its decision for acquittal on (a) the non-materialisation of the elements of the crime, such as the intention to harm the public or the objective to acquire personal gain; as well as (b) the principle of equality in the Constitution,74 based on which providing discounts and free services for the general public could not be criminalised as long as the law permitted for such free or discounted services for some vulnerable groups.75 There is no indication that the Court engaged in any of the arguments relating to international law. The Mayor, former Mayor and city councillors as well as their attorneys made public statements after hearings as well as following the acquittal, in which they stated that they considered the case to set a legal precedent—nationally as well as internationally—confirming the right to water as a human right, and encouraged municipalities all around the world to follow their lead.76 The case has indeed found attention, at least in domestic debates, about the right to water as an international right, as demonstrated by the references by Turkish academics and practitioners to the case and interviews conducted with the Mayor of Dikili during the International Symposium on the Right to Water organized by the Social Change Association in Diyarbakir.77 The case made national and local news, and gathered significant sympathy for the local government’s cause for social municipalism.78 It is significant in this case that the local government of Dikili sought to realise the right to water through a policy more progressive than those of the national government, and sought the support of international law both with regards to the substance and existence of the right to water as a positive right in international law as well as the formal question of the autonomy of local governments, which was brought forward by reference to the European Charter of Local Self-Governance.79

12.4.4 France: Communes Invoking International Law to Strengthen Social Justice Locally Many cases in which municipalities invoke international (human rights) law concern undocumented migrants, as was the case in Spain. In another unitary State, France, the rights of undocumented migrants also formed a reason for local authorities to resort to references to international law to decouple their local policies from those of the national government. One successful instance of such local invocation of 74 Constitution

of Turkey, Article 4. the summary of the decision provided in a paper prepared for the International Symposium on the Right to Water by the defence attorney in the case Arif Ali, Cangi 2011, p. 67. 76 Cumhuriyet 2010. 77 International Symposium on the Right to Water 2010. 78 Gultekin 2008. 79 Bakircay 2008. 75 See

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

263

international law was that of Grande-Synthe, a small commune of 22,000 inhabitants to the North of Dunkirk and close to Calais.80 Here, over the past years, over a thousand of migrants have set up camp hoping to migrate to the United Kingdom. In 2018, the French government and the urban community of Dunkirk started to evict the persons concerned, a number of whom quickly moved back to a nearby wood. In response, and in opposition to the government, the commune decided to enable 200 migrants to take shelter in the gym, the youth hall and the centre of popular culture: a number which quickly grew to 700. In addition, the commune joined a lawsuit drawn up by nine NGOs, in which it called for setting up an adequate emergency shelter, stopping the expulsions of the homeless people into the woods, setting up showers, taps and sanitary services, providing food to the homeless and informing people of their rights.81 In June 2019, the Conseil d’Etat granted part of the claim, ordering the prefecture to set up showers and sanitary services and to inform migrants of their rights. Concerning adequate emergency shelter for all, the Council pointed at the distinction between asylum applicants and those whose application had been rejected—the latter would only have right to such shelter in exceptional circumstances.82 It held that it was up to the State to decide on measures for shelter, provided that these would comply with the principle of human dignity as codified in the French Constitution, and the prohibition of cruel, inhumane and degrading treatment. Where it concerned the evictions it also held that these were permissible given that the applicants could benefit from emergency shelter and that, in any case, the material conditions in the camps were bad.83 In response to the ruling, the mayor indicated that he would demand for compensatory action to be taken by the state.84 The background to this local action, as so often, can be found in a mayor and a community with a strong commitment to human rights. At the 2018 New Year’s reception, for instance, the mayor explained why he opened emergency shelters for those living in the woods nearby, in stating that Grand Synthe was a place of the future, solidarity and courage, calling upon the French government to honour both the French Déclaration des Droits de l’Homme but also the Universal Declaration of Human Rights, of which the 70th anniversary was celebrated in the village.85 In Grande Synthe, he held, the social services (CCAS) ensure that no one slept outside, whilst the responsible authorities did nothing. ‘The law’, according the mayor, ‘obliges us to do the minimum’, ‘even if it means taking on the highest authorities’.86 The same willingness to invoke international law to strengthen social 80 See

Conseil d’Etat, Le Juge des Référés, Ordonnance du 21 Juin 2019, No 431115, at 1.

81 Ibid. 82 Ibid.,

at 11. at 20. 84 Le Monde and AFP 2019. 85 Discours de la cérémonie des vœux du maire, Damien Carême, 13 Janvier 2018, https:// www.ville-grande-synthe.fr/2019/01/14/discours-de-la-ceremonie-des-voeux-du-maire-damiencareme/, accessed 7 November 2019. 86 La loi nous oblige à faire un minimum/Et ce, même s’il faut affronter les plus hautes autorités. 83 Ibid.,

264

B. Oomen et al.

justice locally and to hold the State accountable was apparent in another lawsuit lodged by the same municipality: the first claim against the French government for climate inaction.87

12.4.5 The Netherlands: Questions of Local Authority Reach the European Level The Netherlands, as a decentralized but unitary state, has also had its share of local authorities invoking international law. As we have described extensively elsewhere, a Dutch coalition government of Liberal Democrats and Social Democrats in 2012 led to a governmental policy of prohibition of emergency shelter for undocumented migrants.88 Municipalities, for both principled and pragmatic reasons, opposed these policies and opted to—in open contravention of the governmental position—offer what came to be called ‘bed, bath, bread’—emergency shelter. As one of these municipalities, the human rights city of Utrecht was closely involved in starting two lawsuits that eventually were heard by the European Committee on Social Rights (ECSR), which—generally formulated—concluded that the Dutch policies formed a violation of human rights obligations.89 On the basis of this ‘international explication that can then be taken back to the locality’ the Utrecht court, not much later, referred extensively to these rulings in setting out that Article 8 ECHR put a positive obligation upon the State to provide undocumented migrants with shelter, food and clothing, irrespective of their cooperation with their expulsion.90 This, in turn, offered the municipality of Utrecht a formal basis to continue its humanitarian policies.91 The national government was less pleased with the ruling, and first tried to evade its consequences by stating that ECSR decisions were non-binding and that the Netherlands had excluded non-nationals from the application of the European Social Charter.92 This led to a partially legal, partially political tug-and-pull in which the CoE Council of Ministers endorsed the decision, and other human rights bodies also emphasized how a non-conditional right of access to shelter constitutes a human

87 Le

Monde 2019. Baumgärtel and Oomen 2019; Oomen and Baumgartel 2018; and Oomen 2014, Chapter 7. 89 ESCR, European Federation of National Organisations working with the Homeless (FEANTSA) v. the Netherlands, judgment of 9 July 2014, Complaint No. 86/2012, and ESC, Conference of European Churches (CEC) v. the Netherlands, judgement of 1 July 2014, Complaint No. 90/2013, both published 10 November 2014. 90 The quote comes from an interview with the lawyer that put the case forward, mr P. Fischer, 20 May 2011. 91 The Hague Aliens Court (seat: Utrecht), 201500585/1/V1, judgement of 23 December 2014, ECLI:NL:RVS:2016:581. 92 House of Representatives II, Parliamentary proceedings 2014–2015, 1937–1940, Brief van de Staatssecretaris van Veiligheid en Justitie, 18 December 2014. 88 See

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

265

right.93 In 2017, for instance, the Committee on Economic, Social and Cultural Rights (CESCR) expressed concern at the government’s threat to sanction municipalities that continued to provide shelter to undocumented migrants, and reiterated that the ICESCR did not allow the Netherlands to make access to food, water and housing conditional on an individual’s willingness to return to his or her country of origin.94 With increased politicization of the issue the Dutch State also, in international fora, stated that it did offer emergency shelter, be it at a number of centralized locations.95 Municipalities did not agree with this position, accusing the government of ‘living in a paper reality’ and ignoring the fact that they were confronted with homeless undocumented migrants in their streets.96 This stand-off between a number of municipalities and the national government also took the form of a number of disputes, on which the two highest Dutch administrative courts ruled on the same day. One case concerned the question as to whether undocumented migrants in Amsterdam had an unconditional right to shelter, a question answered affirmatively by the Amsterdam District Court at an earlier stage. The Central Appeals Tribunal, however, held on appeal that the municipality of Amsterdam could refuse such applications and refer migrants to central locations, where the State would have the discretion to put conditions (like cooperation with return) upon access to shelter.97 This understanding—in line with that of the Dutch government, and opposed to that held by both international human rights bodies and local authorities—was reiterated by the Administrative Appeals division of the Council of State, which ruled that Articles 3 and 8 ECHR only oblige the State to offer shelter to that undocumented migrants in ‘special circumstances’.98

93 See Commissioner for Human Rights, ‘Report by Niels Muiznieks Following His Visit to the Netherlands from 20–22 May 2014’, (Strasbourg: Council of Europe, 2014), 126–29; Mandates of the Special Rapporteur on extreme poverty and human rights; the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to nondiscrimination in this context; and the Special Rapporteur on the human rights of migrants, NL 1/2016, 25 February 2016. 94 UNCESCR, Concluding Observations on the Netherlands, 23 June 2017, E/C.12/NLD/CO/6, paras 39 and 40. 95 See European Court of Human Rights, Hunde v. the Netherlands, judgment of 5 July 2016, 17931/16, para 5. 96 Dutch Association of Municipalities, Letters to the chair of the parties in parliament, 28 April 2015, ECSD/U201500740. 97 Central Appeals Tribunal, cases 14/4389 WMO, 15/5095 WMO, 14/4382 WMO, 15/5094 WMO, 14/4387 WMO, 15/5093 WMO, 26 November 2015. 98 Appeals Division of the Council of State, case 201500577/1/V1, 26 November 2016. Because of the focus of this chapter, we refrain from discussing the subsequent steps, such as the Bestuursakkoord, also because this did not address the fundamental tension in the interpretation of human rights obligations between the national government and local authorities.

266

B. Oomen et al.

12.5 Discussion: Researching Local Authorities Invoking International Law before Domestic Courts The foregoing set of cases portrays a legally diverse and dynamic field of engagement that includes federal, quasi-federal and unitary states. Whilst it is commonplace by now to claim that local authorities act in an increasingly assertive manner at the international stage,99 we can discern another trend: they may even be willing to pick legal battles against ‘superordinate’ levels including the national government. This is no coincidence given the (essentially legal) processes of devolution and decentralization that have taken place in many countries and the growing attention that international actors pay to their functions and responsibilities. As we have argued elsewhere, cities in particular have become a new ‘frontier’ in international law, their involvement in law-making processes providing a chance to reinforce the effectiveness and the legitimacy of norms that have come under pressure in recent times.100 The growing international interest in local processes is, in turn, likely to ‘pull in’ municipal authorities and other sub-national actors. As they are trying to cope with newly found tasks and competencies, they begin to recognize that new opportunities await them at the international level. Taken together, the novel linkage and changed domestic contexts reinforce emergent tendencies of a ‘decoupling’ of local from national policies, with confrontation turning into a viable strategy.101 The examples discussed here point towards two general trends. The first lies in the observation that such legal stand-offs are not only merely a theoretical possibility but already an empirical reality. Cities like Utrecht in the Netherlands, the Spanish regions, or Grande-Synthe in France contest more or less openly policies that derive from ‘superordinate’ levels, defending their interest even when it is possible or even likely that they will pay a political price. In some cases, such ‘defiance’ seeks to achieve systemic change,102 with different cities joining forces against the national government; again, we can point to the Netherlands as a relevant example. Moreover, we see nascent trends of increased invocation, where relevant, of international law and more specifically international human rights law to challenge the legal permissibility of national policies rather than only their political rationale. With law being potentially both a shield and a sword,103 local authorities in cities such as Dikili in Turkey have also discovered them as tools for defending their own local policies vis-à-vis actors that disagree with them. Put simply, a recourse to international law promises to give sub-national authorities the chance to put constitutional order on its head even where they do not, from the perspective of local government law, enjoy any specific competencies.

99 E.g.

Acuto 2013, Barber 2013, Aust 2015. and Baumgärtel 2018a. 101 Oomen 2020. 102 Ibid. 103 Handmaker 2019. 100 Oomen

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

267

The second finding marks a counterpoint to the first one. Our examples show that cities and other sub-national authorities are still confronted with very real barriers to their ambitions in national constitutional and administrative rules. This is not a new insight even when it comes to their rise at the international law. Frug and Barron stress that ‘cities… can exercise power only within the legal frameworks that others have created for them’, which ‘largely determine the legal status of cities, and… have a major influence on both the experience of city life and the practice of local self-government’.104 We certainly agree. Even the most proactive cities like Utrecht or Barcelona have to live with constitutional constraints to their local authority. The mere fact that these are increasingly trying to overcome those limits does not automatically decrease the latter, which remain very palpable. A few more far-reaching conclusions can be drawn from our study of the examples especially when combined with more general theoretical and doctrinal considerations. A look at the older German cases on nuclear-free zones shows that domestic judiciaries are well-placed to use the law as a filter for local government policies, making a distinction between ‘harmless’ symbolic acts that are within their competences and more consequential actions that, arguably also for that reason, are held to infringe upon competency areas of the national state. Such rulings that are deferential to the national government are to be expected even international human rights law is being invoked, with the Netherlands being a point in case. Moreover, due to the lack of standing of sub-national authorities before international tribunals, the exhaustion of local remedies equates to an exhaustion of all remedies.105 As seen in the cases concerning emergency shelter for undocumented migrants in the Netherlands, reaching that next level then requires a completely novel and separate legal claim by a different actor, normally an individual or NGO. In such a case, the recalcitrance of local authorities becomes a costly and essentially redundant detour, at least legally speaking. Such strategic considerations are salient especially in constitutional settings where judiciaries are known to be more accommodating to national governments.106 More generally, it would be premature to assume that any domestic court is by default the ally of a local administration when the contrary could just as likely be the case.107 Such considerations bring us to related questions of legal culture. Though admittedly an elusive concept, it is undeniable that local authorities are partially guided by ‘relatively stable patterns of legally oriented social behaviour and attitudes’108 that one can find in any given legal system. While we posit that international organizations and other actors could gradually be altering the self-perception of municipal governments, it is safe to assume that hierarchical conceptions of the organization of the state and legal authority remain very present in many minds including those

104 Frug

and Barron 2006, p. 1. 2021. 106 Spijkerboer 2007. 107 Cf. Resnik 2007. 108 Nelken 2004, p. 1. 105 Baumgärtel

268

B. Oomen et al.

of domestic judges. This, yet again, does not immediately change with the addition of human rights law and discourse into the equation—after all, local authorities engaging with human rights is itself a rather recent phenomenon.109 And if constitutional and administrative brakes are at the same time also mental barriers, then we must ask ourselves how much it would take to tear them down. The examples discussed here are simply too few to suggests that this will be an easy task, leaving us with the unanswered question where, in general, we currently stand in such a process. Then again, recent European legal history is no stranger to tectonic shifts in legal ordering as the introduction of the doctrines of direct effect and supremacy in EU law highlights. In fact, the European Court of Justice explicitly affirmed that the direct effect principle is also applicable to municipal administrative authorities,110 effectively turning them into agents of EU law in terms of implementation. However, the Court also proceeds on an assumption of non-intervention in ‘internal matters’ based on the valorisation of the constitutional identities of EU Member States; this fundamental principle, though undoubtedly important, can lead to ambiguous outcomes since it not only (by default) favours national governments in state-local disputes but also renders invisible potentially legitimate local public policy concerns that may arise, amongst others, in the process of the implementation of EU law.111 Finally, there are normative complications that need to be addressed. Even if we believe that greater involvement of local authorities as human rights actors would be generally positive,112 it may lead to unintended consequences. The most salient one, not unknown to the literature, is backlash. As Blank argued more than a decade ago, ‘local governments that may try to overreach their powers… might encounter some problems from the state that will preempt, curb, and use its internal power to weaken the rebelling city’.113 In such a case, an accelerating locality would not only be slowed down by constitutional ‘gears’ but possibly brought to a complete halt. It is important to be mindful here of the inherent inequality of the struggle, with the central authority always being in a formal position to alter the constitutional dispensation while sub-national actors are not. While such a dependency should not be overstated given the complications that come along with administrative and especially constitutional reform, it remains an option that legal analysts must not discount. Another consequence, well visible already, is an increase in inequality between municipalities: large and small, urban and rural, well equipped to engage internationally and much less so. Here, the emphasis on equality put forward by the Spanish Constitutional Court in the cases pertaining to the right to health can well be understood and appreciated. Accelerating cities, from a normative point of view, are to be welcomed only where they serve to speed up the rest of the peloton in the

109 Oomen

and Baumgärtel 2014. Court of Justice, Fratelli Costanzo SpA v Comune di Milano, Case 103/88, judgment of 22 June 1989, ECR 1989, 01839. 111 Nicola 2012, p. 1309. 112 Oomen and Baumgärtel 2018a. 113 Blank 2006, p. 928. 110 European

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

269

direction of the objectives of international law, and not if they serve to create further in-country divisions. There are, in short, serious objections to be made against the claim that local authorities are (or could be, or even should be) extending their constitutional dispensations by relying on international human rights law. It is a completely open question in our view, with this chapter merely scratching the surface of this development. Our most important finding is therefore that there is an urgent need for more legal and empirical studies.114 More concretely, future research will have to investigate and compare in detail the dynamics of local government law in different countries and how they are shaped by an invocation of international law in general, and human rights in particular. Based on our explorative study, we can deduce a number of relevant questions which such studies could tackle. In how far has there been an increase in legal stand-offs between national and local governments? What kind of cities, towns and regions are involved in such cases and what is the role of politics in these processes? To what extent are outcomes seen to be pre-determined by various local government laws? How ‘open’ are the latter in different places to arguments that are based on international law including human rights law? Does it make any difference whether these confrontations involve questions of constitutional or administrative law? Are domestic judiciaries willing and able to defend the position of local governments? In this respect, what is the role of legal culture and the culture within the judiciary? Can we see a breaking point for national governments where they start clamping down on overly recalcitrant local authorities? Without more specific information of such kind, it will not be possible to determine whether constitutional norms are merely gears that local authorities could shift in the future or actual brakes that will determine the end of the road.

References Acuto M (2013) City Leadership in Global Governance. Global Governance 19(3):481–498. Agustín Ó G, Jørgensen M B (2019) Solidarity Cities and Cosmopolitanism from Below: Barcelona as a Refugee City. Social Inclusion 7(2):198–207 Ambrosini M, Van der Leun J (2015) Introduction to the special issue: Implementing human rights: Civil society and migration policies. Journal of Immigrant & Refugee Studies 13(2):103–115 Aust H P (2015) Shining Cities on the Hill? The Global City, Climate Change, and International Law. European Journal of International Law 26(1):255–278 Aust H P (2017) Das Recht der Globalen Stadt: Grenzüberschreitende Dimensionen Kommunaler Selbstverwaltung. Mohr Siebeck, Tübingen. Avbelj M, Komárek J (2012) Constitutional Pluralism in the European Union and Beyond. Hart Publishing, Oxford Bakircay (2008) Dikilide Su Davasi, 12.07.2008. Accessible at https://www.bakircay.com/dikilidesu-davasi-4791h.htm Barber B (2013) If Mayors Ruled the World: Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Bauman Z (1998) Globalization: the human consequences. Columbia University Press, New York 114 A

valuable start in this direction has been made by Hirschl 2020.

270

B. Oomen et al.

Baumgärtel M (2021) International Dispute Settlement. In: Aust HP, Nijman JE (eds) Research Handbook on International Law and Cities. Elgar, Cheltenham Baumgärtel M, Oomen B (2019) Pulling human rights back in? Local authorities, international law and the reception of undocumented migrants. The Journal of Legal Pluralism and Unofficial Law 51:172–191 Bendel P, Schammann H, Heimann C, Stürner J (2019) A Local Turn for European Refugee Politics: Recommendations for Strengthening Municipalities and Local Communities in Refugee and Asylum Policy of the EU. Available at https://www.researchgate.net/publication/332511460 Blank Y (2006) The City and the World. Columbia Journal of Transnational Law 44(3):875–939 Cangi A A (2011) Dikili Ornegi ve Suya Erisim Hakki, Suyu Hapseden ‘HES’ler, Korumayan Yasalar. In: International Symposium on the Right to Water, Diyarbakir, 5–6 November 2010, (Conference Book). Social Change Association, Istanbul, https://www.suhakki.org/wp-content/ uploads/2011/03/dybkrsempweb.pdf Caponio T (2019) City Networks and the Multilevel Governance of Migration. Policy Discourses and Actions. Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2019/08 CESCR (2017) Spanish Court restricts autonomous communities’ power to expand universal healthcare [Press release]. Retrieved from https://www.cesr.org/spanish-constitutional-court-restrictsautonomous-communities-regulatory-power-expand-universal Chueca E G (2016) Human Rights in the City and the Right to the City: Two Different Paradigms Confronting Urbanisation. In: Oomen B, Davis M, Grigolo M (eds) Global Urban Justice: The Rise of Human Rights Cities. Cambridge University Press, Cambridge, pp 132–155 Council of Europe (2019) Human Rights Handbook For Local and Regional Authorities (Vol. 1). Council of Europe, Strasbourg Council of Europe, Congress of Local and Regional Authorities (2018) Promoting human rights at local and regional level. Council of Europe, Congress of Local and Regional Authorities, Strasbourg Cumhuriyet (2010) Dikili’deki Su Davasi Saniklari Beraat Etti. 26 March 2010. Accessible at: https://www.cumhuriyet.com.tr/haber/diger/131408/Dikili_deki_su_davasi_saniklari_ beraat_etti.html Davidson K, Coenen L, Acuto M, Gleeson B (2019) Reconfiguring Urban Governance in an Age of Rising City Networks: A Research Agenda. Urban Studies 0042098018816010 EU Fundamental Rights Agency (2012) Bringing rights to life: The fundamental rights landscape of the European Union. Publications Office of the European Union, Luxembourg Filomeno F A (2016) Theories of Local Immigration Policy. Palgrave MacMillan, Cham Folz H-P (2011) Germany. In: Shelton D (ed) International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion. Oxford University Press, Oxford Frug G E, Barron D J (2006) International Local Government Law. The Urban Lawyer pp 1–62 Gebhardt D (2016) Re-thinking urban citizenship for immigrants from a policy perspective: the case of Barcelona. Citizenship Studies 20:1–21 Glorius B, Doomernik J (2017) Special Issue Introduction: Refugee Migration and Local Demarcations: New Insight into European Localities. Journal of Refugee Studies 29(4):430–439 Grigolo M (2011) Building the “city of rights”: The human rights policy of Barcelona. In: United C, Local G (eds) Inclusive Cities Observatory Gultekin T (2008) Baskana Su Davasi. Hurriyet Newspaper. 15 April 2008. Accessible at https:// www.hurriyet.com.tr/gundem/baskana-bedava-su-davasi-8697634 Handmaker J (2019) Researching legal mobilisation and lawfare. ISS Working Paper Series/General Series 641 Hirschl R (2020) City, State: Constitutionalism and the Megacity. Oxford University Press, Oxford Hooghe L, Marks G, Marks G W (2001) Multi-level governance and European integration. Rowman & Littlefield, Lanham Hudson C (2010) Global Cities. In: Turner BS (ed) The Routledge International Handbook of Globalization Studies. Routledge, New York, pp 429–446

12 Accelerating Cities, Constitutional Brakes? Local Authorities Between …

271

International Symposium on the Right to Water (2010) which took place in Diyarbakir, 5-6 November 2010, (Conference Book). Social Change Association, Istanbul https://www.suhakki. org/wp-content/uploads/2011/03/dybkrsempweb.pdf Kern K, Bulkeley H (2009) Cities, Europeanization and Multi-Level Governance: Governing Climate Change Through Transnational Municipal Networks. Journal of Common Market Studies 47(2):309–332 Le Monde (2019) Grande-Synthe dépose un nouveau recours contre l’inaction du gouvernement face au changement climatique. Le Monde, 6 March 2019. Available at https://www.lemonde.fr/ planete/article/2019/03/06/grande-synthe-depose-un-nouveau-recours-contre-l-inaction-du-gou vernement-face-au-changement-climatique_5432126_3244.html Le Monde, AFP (2019) A Grande-Synthe, la préfecture du Nord condamnée à des mesures sanitaires pour les migrants. Le Monde, 21 June 2019. https://www.lemonde.fr/societe/article/ 2019/06/21/a-grande-synthe-la-prefecture-du-nord-condamnee-a-des-mesures-sanitaires-pourles-migrants_5479949_3224.html Levarlet F, Alessandrini M, Celotti P (2019) A Territorial Approach for the Implementation of the SDGs in the EU – The Role of the European Committee of the Regions. European Union Committee of the Regions, Brussels Maduro M P (2009) Courts and Pluralism: Essay on a Theory of Judicial Adjudication in the Context of Legal and Constitutional Pluralism. In: Dunoff J L, Trachtman J P (eds) Ruling the World? Constitutionalism, International Law and Global Governance. Cambridge University Press, Cambridge, pp 356–380 Marcenko M (2019) International Assemblage of Security of Tenure and the Interaction of Local Politics with the International Normative Processes. The Journal of Legal Pluralism and Unofficial Law (first online) Marchetti C (2020) Cities of Exclusion: Are Local Authorities Refusing Asylum Seekers? In: Ambrosini M, Cinalli M, Jacobson D (eds) Migration, Borders and Citizenship: Between Policy and Public Spheres. Palgrave MacMillan, Cham, pp 237–264 Molin L O (2011) Developing indicators to raise awareness of human rights at local and regional level. Congress of Regional and Local Authorities of the Council of Europe, Strasbourg Nelken D (2004) Using the concept of legal culture. Australian Journal of Legal Philosophy 29:1–26 Nicola F (2012) Invisible Cities in Europe. Fordham International Law Journal 35:1282–1363 Oomen B (2014) Rights for others: the slow home-coming of human rights in the Netherlands. Cambridge University Press, Cambridge Oomen B (2018) Human Rights Cities: The Politics of Bringing Human Rights Home to the Local Level. In: Handmaker J, Arts K (eds) Mobilising International Law for Global Justice. Cambridge University Press, Cambridge, pp 208–232 Oomen B (2020) Decoupling and Teaming Up: The Rise and Proliferation of Transnational Municipal Networks in the Field of Migration. International Migration Review 54:913–939 Oomen B, Baumgärtel M (2014) Human Rights Cities. In: Gibney M, Mihr A (eds) The Sage Handbook of Human Rights. Sage, London, pp 709–729 Oomen B, Baumgärtel M (2018) Frontier cities: The rise of local authorities as an opportunity for international human rights law. European Journal of International Law, 29(2):607–630 Oomen B, Davis M, Grigolo M (2016) Global Urban Justice: The Rise of Human Rights Cities. Cambridge University Press, Cambridge Papisca A (2011) Relevance of human rights in the glocal space of politics: how to enlarge democratic practice beyond state boundaries and build up a peaceful world. In: De Feyter K, Parmentier S, Timmerman C, Ulrich G (eds) The Local Relevance of Human Rights. Cambridge University Press, Cambridge, pp 82–108 Peralta-Gallego L, Gené-Badia J, Gallo P (2018) Effects of undocumented immigrants’ exclusion from health care coverage in Spain. Health Policy 122(11):1155–1160 Piccoli L (2016) Left out by the state, taken in by the region? Explaining the regional variation of healthcare rights for undocumented migrants in Italy, Spain, and Switzerland. NCCR, Neuchatel

272

B. Oomen et al.

Piccoli L (2018) The politics of regional citizenship: explaining variation in the right to health care for undocumented immigrants across Italian regions, Spanish autonomous communities, and Swiss cantons (PhD). EUI, Florence. Randeria S (2003) Glocalization of Law: Environmental Justice, World Bank, NGOs and the Cunning State in India. Current Sociology 51(3-4):305–328 Resnik J (2007) Foreign as Domestic Affairs: Rethinking Horizontal Federalism and Foreign Affairs Preemption in Light of Translocal Internationalism. Emory Law Journal 57:31–92 Sabchev T (2018) Comprehensive Relational Model for the Study of Local Responses to the Arrival and Settlement of Forced Migrants. Paper presented at the ECPR General Conference, Hamburg Sassen S (2006) Territory, Authority, Rights: From Medieval to Global Assemblages. Princeton University Press, Princeton Scholten P (2015) Between National Models and Multi-Level Decoupling: The Pursuit of MultiLevel Governance in Dutch and UK Policies Towards Migrant Incorporation. Journal of International Migration and Integration 17:973–994 Spijkerboer T (2007) Zeker weten: Inburgering en de fundamenten van het Nederlandse politieke bestel. SDU Uitgevers, The Hague Theuns T (2019) A Comparative Report on the Legal Rules and Practices Regulating the Exercise of the Right to Vote (Eligibility and Representation) in Local, National and EU Elections of Marginalised Groups. Report of the ETHOS Project funded by the EU. https://ethos-europe.eu/ sites/default/files//docs/d3.4_website_report_complete.pdf Triviño-Salazar J C (2018) The politics of immigration locally: Alliances between political parties and immigrant organizations. Ethnic and Racial Studies 41(9):1728–1746 Zapata-Barrero R, Caponio T, Scholten P (2017) Theorizing the ‘Local Turn’ in a Multi-Level Governance Framework of Analysis: A Case Study in Immigrant Policies. International Review of Administrative Sciences 83(2):241–246

Barbara Oomen holds a chair in the Sociology of Human Rights at Utrecht University/University College Roosevelt. She co-edited Global Urban Justice: The Rise of Human Rights Cities and wrote extensively on local authorities and human rights. She leads the five-year program Cities of Refuge funded by the Netherlands Organization for Scientific Research, which seeks to explore and explicate the relevance of international human rights as law, praxis and discourse to how local authorities in Europe welcome and integrate refugees. Moritz Baumgärtel is an Assistant Professor at the School of Law of Utrecht University and at University College Roosevelt. He is also a fellow of the Netherlands Institute of Human Rights and has previously worked as a lecturer at Tilburg University. As a senior researcher of the ‘Cities of Refuge’ project, he currently focuses on the international legal obligations and policy initiatives of cities and their local governments in the migration domain. His monograph Demanding Rights: Europe’s Supranational Courts and the Dilemma of Migrant Vulnerability was published by Cambridge University Press in 2019. Elif Durmu¸s is a Ph.D. Researcher in the project Cities of Refuge of Utrecht University (led by Barbara Oomen). She has an LLB from Ankara University and an Advanced LLM (cum laude) from Leiden University on Public International Law. In Cities of Refuge, she researches local governments’ refugee policies and human rights engagement in Turkey, in Switzerland, and in transnational city networks. She particularly focusses on the generation of social justice. She is a Founding Editor of the blog Human Rights Here of the Netherlands Network of Human Rights Research.

Chapter 13

European Cities Between Self-government and Subordination: Their Role as Policy-Takers and Policy-Makers Karl Kössler and Annika Kress

Contents 13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.2 Local Self-government: Some Conceptual and Terminological Clarification . . . . . . . . . 13.3 Cities as Policy-Makers and Policy-Takers: European Standards . . . . . . . . . . . . . . . . . . . 13.3.1 European Standards of Local Self-government . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.2 Cities as Policy-Makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.3.3 Cities as Policy-Takers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.4 “Special Cities” in Three Countries: Between Historical Legacies and Imperatives of Effectiveness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5 “Special Cities” as Policy-Makers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5.1 Legal Entrenchment of Own Local Responsibilities . . . . . . . . . . . . . . . . . . . . . . . 13.5.2 Subsidiarity, General Competence and the Nature of Local Powers . . . . . . . . . . . 13.5.3 Self-government in View of Delegated Responsibilities . . . . . . . . . . . . . . . . . . . . 13.5.4 Administrative Supervision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.5.5 (In)Adequate Local Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.6 “Special Cities” as Policy-Takers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

274 276 278 278 280 284 286 287 287 289 291 292 294 295 297 300

Abstract More than three decades after the entry into force of the European Charter of Local Self-government our chapter sets out to assess to what extent European cities are, in their roles as policy-makers and policy-takers, truly self-governing. Thereby The chapter was written as part of the LoGov—Local Government and the Changing Urban-Rural Interplay project. This project has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 823961. K. Kössler (B) · A. Kress Institute for Comparative Federalism, Eurac Research, Bozen, Italy e-mail: [email protected] A. Kress e-mail: [email protected] © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_13

273

274

K. Kössler and A. Kress

we look at cities that fulfil three criteria: that they are located in a federal country in a broad sense, in a country with legal entrenchment of both the Charter and post-Lisbon EU law and that these city governments assume additional responsibilities which are elsewhere, mostly in rural areas, performed by specific umbrella entities (e.g. the Landkreise in Germany, Landbezirke in Austria and province in Italy). Section 13.2 of this chapter clarifies concepts and terminology of local self-government. These are rather controversial so that we need to explain our view on these issues. Section 13.3 presents a framework of legal standards for local self-government, derived from the Charter and, to a lesser extent, from EU law, regarding the twin roles of cities as both policy-makers and policy-takers. These European standards then form the lens through which Sect. 13.4 analyses how these roles are played by Germany’s kreisfreie Städte (“county-free cities”), Austria’s Statutarstädte (“cities with own statute”) and Italy’s città metropolitane (“metropolitan cities”). Section 13.5 concludes by assessing the extent to which these cities can thereby be considered as self-governing local authorities. Keywords Austria · Cities · Decentralization · Germany · Italy · Local autonomy · Local government · Local self-government · Metropolitan areas

13.1 Introduction “The Charter is a sort of Bill of Rights—for local authorities, rather than for individuals.”1 The “Charter” referred to in this statement is the European Charter of Local Self-Government and it claims in its preamble that self-government of local authorities is a common European heritage. While there is a lot of truth in this claim about the past, considering the deep roots of municipal freedom dating back to medieval times,2 the degree of self-government today is less clear. More than three decades after the entry into force of the Charter as an international treaty with binding provisions in 1988, this chapter seeks to assess the extent to which European cities are truly self-governing in their twin roles as “policy-makers” and “policy-takers”.3 Our chapter attempts to address this question with regard to cases that fulfil three criteria. First, we narrow down our focus by only looking within Europe at federal systems, defined broadly as “systems in which at least two political tiers of government exist, thereby combining self-rule and shared rule and thus making use (to a 1 Himsworth

2015, p. 4. 2017, pp. 5–9. 3 In contrast to a sometimes more orthodox use of these two notions in political science, we take “policy-maker” to mean the role of cities within a polyarchic setting due to own (at least shared) responsibilities which gives them opportunities for bottom-up initiatives and control (together with other government levels) over policy outcomes. By contrast, “policy-taker” refers to the complementary role of cities in a hierarchic setting in which policies are determined by other government levels and cities are, even if consulted, largely objects of policy-making of other government levels. See Schultze 2003, p. 123; Leuprecht and Lazar 2007, p. 2. 2 Boggero

13 European Cities Between Self-government …

275

greater or lesser extent) of the federal toolkit”.4 For the purpose of our chapter, it makes sense to concentrate on cities in federal countries because this topic remains under-researched5 and it is only there that they are involved, as self-governing entities, in a unique interplay and competition with subnational entities.6 In many cases, the latter view subnational and local autonomy as a zero-sum game and thus fear what has been called “hourglass federalism”.7 This points to a scenario in which subnational entities are increasingly marginalized in between the national and local governments because especially cities (almost) match them, besides legal competences, in terms of economic and political power. As early as in 1981, the Explanatory Report to the Draft Charter recognized this risk and issued the following warning. In countries “where regional reforms have been carried out, care must be taken that the devolution of powers from the central government to the region is not accompanied by any upward transfer of local government responsibilities to the region: rather, there must be a reinforcement of devolution to the lowest level possible.”8 The Charter itself explicitly addresses duties of both central and regional authorities in Article 4(4-5) and also the wording “higher-level authorities” in Article 8(2) is a hardly veiled reference to both these government levels. The binding force of the whole Charter, not only of these three provisions, vis-à-vis subnational entities is beyond dispute.9 For our chapter, the focus on the role of cities in federal systems entails that this role may well vary within the same country from one subnational entity to another, as it is often a subnational competence to (co-)regulate local government.10 Secondly, our cases must distinguish themselves by the legal entrenchment of both the Charter and EU law after the 2007 Lisbon Treaty, which together are the analytical lens through which we look at the role of cities,11 in a written codified constitution. This excludes Switzerland and Bosnia-Herzegovina, which are only subject to the Charter requirements, as well as the United Kingdom. In view of parliamentary sovereignty, there are no entrenched constitutional provisions for local government that are shielded against simple amendment by the legislature, even if local government has historically enjoyed considerable political protection.12 Thirdly, we focus within countries fulfilling the two above criteria on local governments of a certain type, i.e. those assuming responsibilities in particular urban areas which are elsewhere, mostly in rural areas, performed by specific umbrella entities. 4 Palermo

and Kössler 2017, p. 8. a rare early account of the position of cities in federal systems is provided in Elazar 1975, p 15. 6 We take “subnational entities” to mean those between the national government and the system of local governments. The latter may itself be composed of more than one tier by featuring, apart from municipalities, umbrella entities such as counties. 7 Courchene 2004, p. 12. 8 Congress of Local and Regional Authorities, Explanatory Report to the Draft Charter (the so-called “Harmegnies Report”), CPL (16) 6, 21 September 1981. 9 Himsworth 2015, p. 36. 10 Palermo and Kössler 2017, pp. 285–286 and 29–91. 11 See below, Sect. 13.3.1. 12 Himsworth 2012, p. 666. 5 However,

276

K. Kössler and A. Kress

This urban-rural differentiation excludes Belgium and Spain as case study countries. Even big cities like Antwerp or Barcelona form part of ordinary provinces, which are the umbrella entities in both urban and rural areas.13 In this regard, they are different from Germany’s kreisfreie Städte (“county-free cities”), Austria’s Statutarstädte (“cities with own statute”) and Italy’s città metropolitane (“metropolitan cities”). Even though these are far from being uniform categories in terms of demographics, economic wealth and political power,14 they are distinguished by a similar legal status. All of these local governments have competences in particular urban areas that are elsewhere, mostly in rural areas, performed by specific umbrella entities, i.e. the Landkreise in Germany, Landbezirke in Austria and Province in Italy. As a matter of fact, the Italian metropolitan cities may in some ways be considered themselves a form of umbrella entities. For instance, the City of Rome constitutes the metropolitan city of the same name together with 120 other municipalities, and by law its mayor is at the same time the mayor of the metropolitan city.15 Such institutional links alongside separate metropolitan bodies result in a hybrid system which complicates a clear differentiation. In this regard and through their coexistence as specifically urban umbrella entities next to the Italian provinces, the metropolitan cities differ fundamentally from provinces in Belgium and Spain, which cover both urban and rural areas.

13.2 Local Self-government: Some Conceptual and Terminological Clarification “[T]he degree of autonomy of local communities is the touchstone of a true democracy.”16 This brief statement from the 1981 Explanatory Report to the Draft Charter is interesting in two respects. It establishes the link with (local) democracy, which came to characterize the Charter, and it uses the term “autonomy”, an expression mostly replaced by “self-government” in the final text of the treaty. In academia too, these two and other similar terms are not clearly distinguished. In fact, there is in the multidisciplinary field of local government studies no consensus on how to define self-government or autonomy and even less on the indicators to measure it.17 Therefore, some clarification is needed of what we mean by local self-government for the purposes of this chapter. 13 Even Antwerp, for example, with 1.2 million inhabitants Belgium’s second-largest city, is in legal terms merely one out of 70 municipalities belonging to Antwerp Province. Similarly, the City of Barcelona is one out of 311 municipalities in Barcelona Province. 14 For instance, the smallest of Germany’s county-free cities numbers only 34,000 inhabitants and the biggest one, Munich, as many as 1.5 million. 15 Article 19 of Ordinary Law No. 56/2014 (the so-called “Delrio Law”). 16 Congress of Local and Regional Authorities, Explanatory Report to the Draft Charter (the so-called “Harmegnies Report”), CPL (16) 6, 21 September 1981. 17 Ivanyna and Shah 2014.

13 European Cities Between Self-government …

277

Our understanding is based on definitions from both academic experts and the Charter. For the latter, local self-government means according to Article 3 “the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population” and that this right shall be exercised by elected bodies. The important reference to “ability” makes very clear that formal compliance of a country’s law with Charter standards is not sufficient. As emphasized in the Explanatory Report to the Charter,18 the right to regulate and manage public affairs “must be accompanied by the means of doing so effectively [emphasis added]”. This focus on effectiveness, which guides the empirical analysis of our chapter,19 is also inherent to some of the most common definitions in academia. One of these refers to real power of initiative and immunity as the two cornerstones of local autonomy.20 Based on Jeremy Bentham’s definition of power along the lines of these two components, initiative is taken to mean the power to carry out tasks in line with local interests and immunity the power to act without oversight. As for our terminology, we speak of local self-government and thus follow the Charter. This seems preferable to using the term local government. The latter is sometimes seen as referring to the government level closest to citizens and in its plural form to the manifold institutions at this level, i.e. basic general-purpose municipality, elected single-purpose bodies such as school boards and umbrella entities like counties.21 Also the Italian and Portuguese notions of autarchia and autarquia, denoting mere local administrative units, may therefore fall within the category of local government.22 Such a neutral understanding of local government, which is detached from the concepts of self-government and democracy, is only conceivable, however, if these concepts are not regarded as inherent to local government due to a country’s specific constitutional tradition. This holds true, for instance, in the case of the United Kingdom. It has been pointed out that both the general language use and the terminology in British legislation implicitly include the above concepts and thus exclude merely deconcentrated units of the national government.23 Local governance is another related term that has gained currency and requires differentiation from local self-government. This notion, which takes account of the growing involvement of private actors from outside local government proper, was unknown to the architects of the Charter in the early 1980s. In fact, the emergence of constellations in which local governments do rather ‘steer and not row’, i.e. they coordinate different actors and do not perform all functions themselves, seems to have 18 As for the function of the Explanatory Report, it needs to be pointed out that this document was adopted by the Committee of Ministers of the Council of Europe at the same time as the Charter and does not have binding force. The report itself states that it “does not constitute an instrument providing an authoritative interpretation of the text of the Charter, although it may facilitate the understanding of its provisions.” 19 See below, Sect. 13.5. 20 Clark 1984, pp. 195–208. 21 See on these categories Steytler 2009, p. 398. 22 Boggero 2017, pp. 12–13. 23 Himsworth 2015, pp. 5–6.

278

K. Kössler and A. Kress

been observed first in the United Kingdom and later in other parts of Europe.24 Even though local governance has become increasingly common in academia, especially in political science and public administration,25 the term has failed in the political arena to rival and replace local self-government as the dominant Charter terminology. More difficult is it to distinguish between this prevailing notion and local autonomy. After all, the equally authentic French text of the Charter uses the term autonomie locale, interestingly, even though it is not known from the French Constitution. Autonomy is certainly particularly common and intuitively comprehensible in Europe’s Romance languages. There is a crucial distinction in Spain’ constitutional system, for instance, between autonomía política (of the Autonomous Communities) and merely autonomía administrativa (of the provinces and municipalities).26 The aim to use for a Europe-wide treaty terms that resonate with different languages and legal traditions was arguably the reason why the treaty was called both European Charter of Local Self-Government and Charte européenne de l’autonomie locale.27

13.3 Cities as Policy-Makers and Policy-Takers: European Standards 13.3.1 European Standards of Local Self-government As outlined in the introduction, this chapter focuses on countries that are subject to the relevant legal standards from both the Council of Europe and the EU. The fact that such standards exist at all is quite extraordinary in comparative perspective as states are typically reluctant to accept external, i.e. international, regulations regarding their structure of government, much more than concerning their guarantees of fundamental rights.28 With regard to the European Union, it has been pointed out that its rules about the creation, implementation, application and judicial review of EU law actually have a clear direct impact on subnational governments so that the Union’s alleged “regional blindness”, i.e. its indifference towards internal constitutional arrangements of its member states, seems to indeed be a rather “deceptive notion”.29 Even if the impact of EU law is greater on subnational entities, there are, as we shall see, certain relevant provisions for local governments too with the subsidiarity regulations under the 2007 Lisbon Treaty being of particular significance. As part of EU primary law 24 Leach

and Percy-Smith 2001. Denters and Rose 2005. 26 Article 137 of the Spanish Constitution, as interpreted in STC 32/1981. 27 Boggero 2017, pp. 16–17. 28 It has been observed that many post-World War II constitutions have a common core of such guarantees that are derived from international human rights conventions (McCrudden 2000, p. 501). 29 Weatherill 2005, p. 30. 25 E.g.

13 European Cities Between Self-government …

279

these regulations are directly applicable and directly effective, i.e. they can be relied on in domestic courts. By comparison, however, the Council of Europe has played a far more important role in setting standards for local governments. It is true, of course, that each party to the treaty may limit the Charter’s effects by invoking its right to select at least twenty of thirty paragraphs, ten of which must be chosen from a nucleus of 14 listed paragraphs (Article 1 and 12(1)),30 and by excluding certain local government types from the scope of the Charter (Article 13).31 Yet, these concessions were the price to pay, under conditions of Realpolitik, to achieve consensus on what the Explanatory Report proudly termed “the first multilateral legal instrument to define and safeguard the principles of local autonomy”. And they were the price for complete coverage, with the last ratification in 2014, in terms of the Council of Europe’s 47 member states. Regarding the relationship between the Charter standards and domestic law, there is significant diversity, two reports of the Congress of Local and Regional Authorities, which is responsible for monitoring the Charter’s application, highlight.32 Basically, the stipulation in Article 1 that the parties “undertake to consider themselves bound by the following articles” has resulted in two different approaches. While the Charter has in some countries binding effects merely under international law, it has been incorporated in other countries in domestic law. The three countries analysed in this chapter belong to the latter group. All of them were among the first Council of Europe member states to ratify the Charter,33 albeit only Italy did so without reservations and declarations, and then moved to make the treaty provisions part of domestic law. In all three countries, however, Charter provisions are not regarded as sufficiently precise for local governments to directly rely on them in court.34 Rather they are seen in constitutional case law as being of programmatic nature.35 But in this sense the Charter forms an important European standard to which Austria, Germany and Italy are legally bound.

30 As explained in the Explanatory Report, the Charter thus adopts “the compulsory nucleus” system that was first established by the European Social Charter. 31 Belgium, for instance, officially stated that the scope of the Charter includes its municipalities and provinces, but not the Centres publics d’aide sociale (Public Centres for Social Welfare) on the territory of the Brussels-Capital Region. 32 Congress of Local and Regional Authorities, The European Charter of Local Self-Government in Domestic Law, CPL (21) 2, 28 September 2011. 33 Austria in 1987, Germany in 1988 and Italy in 1990. 34 Boggero 2017, p. 76. 35 E.g. Constitutional Court of Austria, VfSlg 13235/1992, judgement of 16 October 1992; Italian Constitutional Court, No 325/2010, judgement of 3 November 2010, ECLI:IT:COST:2010:325 and Italian Constitutional Court, No 50/2015, judgement of 24 March 2015, ECLI:IT:COST:2015:50.

280

K. Kössler and A. Kress

13.3.2 Cities as Policy-Makers As explained above, local governments and especially cities are increasingly important as policy-makers in relation to the national and subnational governments as a result of own (at least shared) responsibilities, which gives them some degree of policy initiative and of control over policy outcomes. With regard to this role certain European legal standards are relevant. Notable Charter provisions are above all but, as we shall see not exclusively, Article 3 and 4 about the concept and scope of local self-government. Such self-government “denotes the right and the ability of local authorities, within the limits of the law, to regulate and manage a substantial share of public affairs under their own responsibility and in the interests of the local population.” (Article 3(1) of the Charter). As to the definition of the concrete responsibilities that make up this “substantial share of public affairs”, the Explanatory Report explicitly refers to Article 4. Importantly, however, this provision does not uniformly and exhaustively enumerate these responsibilities, which is as impossible for local authorities as it is for regions.36 In fact, the architects of the Charter deliberately rejected, according to the Explanatory Report, the traditional notion of inherently “local” affairs in favour of a more flexible approach that succeeds in including the very different realities in the member states of the Council of Europe. At least, Article 4 provides some indication regarding the guiding principles for the allocation of local powers. Of particular importance among these is the principle of subsidiarity. Even if the term is neither used explicitly in the Charter nor the Explanatory Report, this principle is, in its positive and vertical dimension,37 without doubt enshrined in Article 4(3). This provision stipulates that “[p]ublic responsibilities shall generally be exercised, in preference, by those authorities which are closest to the citizen. Allocation of responsibility to another authority should weigh up the extent and nature of the task and requirements of efficiency and economy.” By contrast, the EU’s understanding of the subsidiarity principle did not initially include the subnational and local levels of government. Article 3b of the 1992 Maastricht Treaty introduced subsidiarity in a dualist manner exclusively for relations between competences of the EU and its member states. While certain member states subsequently extended the scope of the principle “downwards” to local governments (e.g. Article 23(1) German Basic Law), it took the 2007 Lisbon Treaty on European Union (TEU) to achieve the same at the European level. Article 5(3) TEU now states that “in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member states, either at central level or at regional and local level [emphasis

36 Saunders

1995, p. 70. denotes the preference for the responsibility of authorities closest to the citizen, while “negative” means the rule that no authority shall discharge any responsibility that could be better discharged by authorities closer to the citizen (Cassese 1997, p. 83). Moreover, the definition focuses on “vertical” subsidiarity between different government levels and not on “horizontal” subsidiarity relations between governmental and private actors (Panara 2015, p. 79). 37 “Positive”

13 European Cities Between Self-government …

281

added], but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.” As for the practical effectiveness of these European subsidiarity standards, it needs to be acknowledged that the Charter provision is, according to the monitoring reports of the Congress of Local and Regional Authorities, not fully complied with by a number of countries.38 With regard to the EU principle, Article 6 of the Lisbon Subsidiarity Protocol outlines a procedure which permits national parliaments to issue within six weeks from the publication of a draft European legislative act a reasoned opinion, albeit non-binding, on the alleged violation of the principle of subsidiarity. It is up to them to decide whether “to consult, where appropriate, regional parliaments with legislative powers” and there is no role at all foreseen for local governments. Another option is for member states to invoke the subsidiarity principle before the European Court of Justice (ECJ). But they have been very reluctant to do so39 and the ECJ has never invalidated any Union act for violating this principle. Yet, subsidiarity under EU law arguably remains useful, despite this lack of judicial enforcement (so far), because “it directs attention to the “vertical” dimension of the European Union’s legitimacy deficit and to the importance of diversity (alongside integration) as a value underpinning the European project’.40 The diversity argument certainly makes a more general point that is valid for subsidiarity under the Charter too. This is because weighing up “the extent and nature of the task and requirements of efficiency and economy” (Article 4(3)) will always depend on specific contexts of individual local governments and the situation of the cities covered in this chapter obviously differs enormously from that of small rural municipalities. By accounting for this diversity, the subsidiarity principle of the Charter is therefore open to asymmetry and goes against the uniformity of the Napoleonic model of local government.41 It is worth noting, however, that in comparative practice the distribution of powers for local governments is symmetrical in many countries which runs the risk of demanding too much from small villages and too little from big cities. In the long run, the prevalence of uniformity might come under increasing pressure as a result of cities claiming more competences and a special status in many countries.42 A second guiding idea for the scope of local government responsibilities is that of a general competence. This emerges from Article 4(2), according to which “[l]ocal authorities shall, within the limits of the law, have full discretion to exercise their initiative with regard to any matter which is not excluded from their competence nor assigned to any other authority.” As the Explanatory Report clarifies, local governments should be made capable, beyond the powers expressly assigned by legislation, of “acting in their own right to promote the general welfare of their inhabitants”. This 38 For

an overview, see Boggero 2017, pp. 158–161. the few cases of invoking subsidiarity it has hardly been one of the main arguments so that the number of real subsidiarity challenges is no more than ten in nearly 20 years (Craig 2012, p. 80). 40 Syrpis 2004, p. 334. 41 Boggero 2017, pp. 157–158. 42 Palermo and Kössler 2017, pp. 294–295. 39 In

282

K. Kössler and A. Kress

is curious insofar as the Charter thereby clearly sides with one of two fundamentally different constitutional traditions regarding the allocation of local responsibilities, i.e. the concept of general competence and that of ultra vires.43 Pursuant to the latter concept, all local governments must have an explicit legal basis in enabling legislation. Noteworthy is the U.S. variation of ultra vires, the so-called Dillon’s rule,44 named after the Supreme Court of Iowa Judge popularizing this legal concept which eventually came to be also endorsed by the U.S. Supreme Court.45 In his words, municipal corporations would “derive their powers and rights wholly from the legislature. It breathes into them the breath of life, without which they cannot exist.”46 In view of the Charter’s ambition to ensure a broad scope of local responsibilities its preference for a general competence is quite understandable, even though the German prototype of such a competence (Allzuständigkeit) does not necessarily guarantee extensive self-government in practice.47 The same ambition and, as we shall see, only partial realization in practice characterizes Article 4(4) according to which “[p]owers given to local authorities shall normally be full and exclusive. They may not be undermined or limited by another, central or regional, authority except as provided for by the law.” This provision evidently attempts, subject to the qualifications “normally” and possible limitations “by the law”, to protect the prerogatives of local authorities against undue intrusion by other government levels. It thereby echoes long-standing concerns regarding subnational entities, for instance Canadian provinces,48 that only exclusive responsibilities under the paradigm of dual federalism can forestall such intrusion based on from superior financial and administrative capacities. While there certainly is some truth to this rationale, denying the need for shared powers altogether would be like chasing a chimera because this it is at odds with a reality of complex governance challenges that require complementary actions by different government levels, often even with the inclusion of private actors. Again, an analogy with subnational entities is instructive. Even though the framers of the Belgian Constitution aimed to adhere to the principle of exclusive powers and constitutional jurisprudence repeatedly highlighted the plenary nature of subnational competences (“la plenitude de competence”), the same court had to recognize in other cases that complex governance challenges make de facto overlaps of jurisdictions

43 Palermo

and Kössler 2017, pp. 291–294. On the origins of the notion of ultra vires in the United States and its subsequent diffusion, see Zimmerman 1995. Even if the term ultra vires first spread in the common-law countries of the Anglo-American space, it was later adopted by much of the comparative literature on local government in contrast to the notion of general competence. 44 Richardson 2011, p. 662. 45 Supreme Court of the United States, Atkin v Kansas, judgement of 30 November 1903, 191 US 207 (1903). 46 Supreme Court of Iowa, City of Clinton v Cedar Rapids and Missouri River Railroad Co, judgement of June 1868, 24 Iowa 455 (1868). 47 Mehde 2006, p. 165. 48 Dissenting Opinion of Puisne Justice Jean Beetz in Bell Canada v Québec, judgement of 26 May 1988, [1988] 1 S.C.R. 749, p. 766.

13 European Cities Between Self-government …

283

inevitable.49 The reality of such complexity is also acknowledged by the Explanatory Report, if not by Article 4(4) itself, in two instances. First, it indicates a certain flexibility, unlike a rigid exclusivity rule, as “most affairs have both local and national implications and responsibility for them may vary between countries and over time, and may even be shared between different levels of government.” Secondly, for these cases of complementary action it regards as important that “the intervention by central or regional authorities takes place in accordance with clear legislative provisions.” A fourth requirement for the allocation of local competences concerns the question of the form and intensity of legal entrenchment. Article 4(1) stipulates that “[t]he basic powers and responsibilities of local authorities shall be prescribed by the constitution or by statute. However, this provision shall not prevent the attribution to local authorities of powers and responsibilities for specific purposes in accordance with the law.” The Explanatory Report makes clear that sufficient entrenchment, as opposed to an ad hoc assignment (and possibly ad hoc withdrawal), is essential for the sake of both clarity and legal certainty.” While the allocation of local powers shall be guided, according to the above European standards, by the principles of subsidiarity, general competence, full and exclusive competence, as well as sufficient entrenchment, these powers may be undermined by a number of legal and non-legal factors.50 Particularly important among them seem to be the overburdening with delegated responsibilities, excessive administrative supervision, as well as inadequate financial and administrative resources. The Charter attempts to eliminate these risks with various provisions. First, as the Explanatory Report emphasizes with regard to Article 4(5), it is important that recourse to delegated responsibilities, which are originally assigned to other government levels, “does not excessively impinge on the sphere of independent authority of the local level.” The legally binding text of the provision itself, however, does not reflect this concern of utmost significance. It merely states that “[w]here powers are delegated to them by a central or regional authority, local authorities shall, insofar as possible, be allowed discretion in adapting their exercise to local conditions.” What therefore emerges from the wording of Article 4(5) is not a concern about the very real risk of an imbalance between own powers and delegated powers, but about some leeway in the exercise of the latter. The ambition to ensure leeway for local governments is the reasoning behind Article 8(2) according to which any administrative supervision “shall normally aim only at ensuring compliance with the law and with constitutional principles.” This contrasts with delegated powers for which administrative supervision may also “be exercised with regard to expediency”. A third risk that the Charter attempts to address is that of inadequate financial resources and, often linked with that, administrative capacities. In line with the treaty’s overall aim to ensure effective local self-government, the Explanatory Report declares emphatically that “[t]he legal authority to perform certain functions 49 Belgian

Constitutional Court, No 166/2003, judgement of 17 December 2003. an early study on five factors that may limit local self-government, see Goldsmith 1995, pp. 228–252.

50 For

284

K. Kössler and A. Kress

is meaningless if local authorities are deprived of the financial resources to carry them out.” Specifically, Article 9(1) states that “local authorities shall be entitled, within national economic policy, to adequate financial resources of their own”. A particularly important notion in this provision is the requirement of adequacy which the Charter explains in Article 9(2) as being related to their financial needs, as “[l]ocal authorities’ financial resources shall be commensurate with the responsibilities”. The Charter does not address, however, a second dimension of adequacy, i.e. that local governments have sufficient resources in order to be competitive with regard to shared responsibilities. As mentioned above, an excessive financial imbalance entails in these areas the very real risk that better-resources national or subnational government levels may undermine the exercise of local powers.

13.3.3 Cities as Policy-Takers Almost three decades ago, a comprehensive comparison of local governments, at least those in industrialised countries, concluded that they play a “major role in the delivery [emphasis added] of fundamental collective public and quasi-public goods”.51 While this role is evidently important, an excessive focus on delivering basic services, if their scope and nature are determined by policies of other government levels, creates the risk that local governments are perceived only as policy-takers without a role as policy-makers. As remarked provocatively concerning Australian municipalities, they are then seen as being in charge of little more than “roads, rubbish and rates”.52 A more recent comparative study concentrated on cities similarly claimed that the “hierarchical nature of power relationships” often entails that “city governments are policy-takers, not policymakers, with respect to national programs that significantly affect their jurisdictions.”53 To make things even worse, one might add that they are in many cases at the same time also policy-takers concerning subnational programs. Yet, it is important to acknowledge that even the implementation of policies that can be (co-)determined, according to the distribution of powers, by other government levels should have some element of local self-government. The Charter recognizes exactly that in Article 4(6) according to which “[l]ocal authorities shall be consulted, insofar as possible, in due time and in an appropriate way in the planning and decisionmaking processes for all matters which concern them directly.” Importantly, this duty of consultation does not depend on whether a policy is within the own jurisdiction of local authorities but on its local impact. The Explanatory Report makes this clear by pointing out the following: “Whilst Paras 1 to 5 [of Article 4] deal with matters which come within the scope of local authorities, Para 6 is concerned both with matters coming within the scope of such authorities and with matters which are outside their scope but by which they are particularly affected.” 51 Hesse

and Sharpe 1990, p. 608. in Steytler 2005, p. 6. 53 Leuprecht and Lazar 2007, p. 2. 52 Quoted

13 European Cities Between Self-government …

285

A crucial issue is then the concrete scope of application of obligatory consultation. In this regard it is evident that the requirement of local authorities being “particularly affected” leaves substantial room for interpretation (by national and subnational governments). The Congress of Local and Regional Authorities has attempted to provide more clarity by emphasizing that consultation would be required in particular, but not exclusively, with respect to “economic and financial affairs, spatial planning, the environment, European affairs, local development, education and culture.”54 A second important issue is the nature of obligatory consultation under Article 4(6). Here it is essential to recognize that this provision sets out, unlike the preceding paragraphs, a procedural guarantee. As such it is directly applicable and does not require the parties to the treaty to further regulate consultation. However, due to the absence of legal consequences for non-compliance by the Charter itself, any possible sanctions depend on what domestic legislation establishes. As a matter of fact, consultation is in most countries still “based on customary practice alone”.55 Also the qualification that local governments shall be consulted “insofar as possible” weakens the guarantee enshrined in Article 4(6) and makes it “a principle, rather than a rule”.56 This arguably entails that the consultation requirement needs to be weighed from case to case against other principles and may be satisfied, depending on the circumstances, by quite different mechanisms. These may range from the right to be heard without real influence to genuine political negotiations. It hardly comes as a surprise, therefore, that the Congress of Local and Regional Authorities has attempted to reinforce the right to be consulted by urging states to set out a domestic legal framework for the consultation process and to develop this process into a system of negotiation between the government and formally recognized associations of local governments.57 Such associations have indeed a crucial role to play, as consultation can take place, according to the Explanatory Report, “directly with the authority or authorities concerned or indirectly through the medium of their associations where several authorities are concerned.”58

54 Congress of Local and Regional Authorities, Recommendation 171 (2005) on consultation of local authorities: implementation of the European Charter of Local Self-Government (Articles 4.6, 5, 9.6 and 10), para 10. 55 Ibid., para 5. 56 Boggero 2017, p. 168. 57 Recommendation 171 (2005) on consultation of local authorities: implementation of the European Charter of Local Self-Government (Articles 4.6, 5, 9.6 and 10), para 19a-c. 58 In this context, see also Article 10(2) of the Charter on the “entitlement of local authorities to belong to an association for the protection and promotion of their common interests”.

286

K. Kössler and A. Kress

13.4 “Special Cities” in Three Countries: Between Historical Legacies and Imperatives of Effectiveness As indicated in the introduction, all three countries examined in this chapter feature certain types of cities that are “special” due to legal statuses that make them responsible for competences elsewhere performed by other governmental entities. The special cities in Germany are “county-free”, which means that these cities exist outside of the common framework of local government, i.e. municipalities (Gemeinden) that are also part of counties (Landkreise). They rather take on the responsibilities of both and unite them in one legal entity. “Cities with own statute” in Austria are not only municipalities, but also district administrative authorities (Bezirksverwaltungsbehörde), a function that is performed with regard to other municipalities by a separate legal entity, the Bezirkshauptmannschaft. The metropolitan cities in Italy, are rather new territorial entities that have replaced some of the provinces and take on further functions, as assigned to them by the national and the regional levels of government. Whereas in the cases of Germany and Austria, history has played a non-neglectable role in the determination of which cities should hold special status, the Italian metropolitan cities are not administrative remnants of historical predecessors but have rather been debated and finally established, more recently, in order to tackle the growing challenges of urban agglomerations more effectively.59 As such, their establishment has been debated as early as the 1950s, yet it took until 2001 to constitutionally entrench them and more than another decade to finally establish the metropolitan cities because of two principal reasons: provincial, regional, as well as municipal vetoes due to fears of what these “special cities” would mean for their own functioning and little clarity of how they would actually operate.60 Despite the above-mentioned importance of history, effectiveness of local government also plays a major role in the determination of which Austrian and German municipalities should be awarded special status. Article 5(3) of the Bavarian municipal code exemplifies this: in order to qualify for “county-freedom”, municipalities are not only required to have a minimum of 50,000 inhabitants and to be of “appropriate significance”, but must take into account also the operational effectiveness of the county that they belonged to until this point. The Bavarian municipal code furthermore regulates the revocation of county-freedom and provides next to the procedural requirements that this happen “[o]n grounds of public interest” (Article 5a(1)). In Austria, the Constitution provides in addition to a threshold of 20,000 inhabitants that it is the interest of the respective Land rather than that of the city that may restrain the possibility of obtaining an own statute (Article 116(3)). In any case, the cities with own statute as well as the county-free cities do, for the vast majority,

59 Boggero 60 Boggero

2016, p. E-3; Woelk 2014, p. 113; Guerra 2014, p. 5. 2016, p. E-5.

13 European Cities Between Self-government …

287

coincide with the largest cities in both countries and furthermore include nearly all capitals of the Länder as subnational entities.61 This begs the question of whether there is the need for a “special” legal category of cities in order to govern larger cities more effectively and why the “ordinary” division of tasks among the different bodies of local self-government was not chosen.

13.5 “Special Cities” as Policy-Makers 13.5.1 Legal Entrenchment of Own Local Responsibilities The degree to which the respective national constitutions recognize and regulate the above-mentioned cities, differs quite significantly. Whereas the German Basic Law itself does not at all mention the possibility of establishing county-free cities and leaves the specifics of organizing municipal law as a residual power to the Länder (Article 70 Basic Law), the Italian Constitution after the 2001 reform lists metropolitan cities as territorial entities next to municipalities, provinces, regions and the State and recognizes them as “autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution” (Article 114 of the Italian Constitution), but does not further specify what these powers and functions are. While the Austrian Constitution generally follows the principle of municipal uniformity, it does outline the conditions under which a municipality is to be awarded its own statute via an ordinary law of the respective Land and furthermore specifies that these cities with own statute shall carry out the tasks of the district administration next to the tasks of municipal administration (Article 116(3) of the Austrian Constitution). The specification of the legal framework of “special cities” is decentralized to varying degrees across the countries. In Italy, it is the national Ordinary Law No. 56/2014 (the so-called “Delrio Law”) that established the metropolitan cities as “special cities”. The Italian Constitutional Court ruled62 that this top-down establishment of metropolitan cities was constitutional, as it was a “structural local government reform, whereas the constitutional provision providing for a bottom-up and proactive role of the provinces (Article 133(1c) of the Italian Constitution) applies only when single boundary modifications are concerned”.63 First, they are a special local 61 The few exceptions are Bregenz in Vorarlberg and Hannover (Lower Saxony), as well as Saarbrücken (Saarland). Our analysis excludes the city states (Stadtstaaten) Vienna in Austria, as well as Berlin, Bremen and Hamburg in Germany which are Länder in their own right, where no secondtier local government in the form of counties exists and where even the clear separation of powers between the subnational level and the local level is difficult. See Burgi 2019, pp. 1–2. Moreover, we decided not to give city-states more space in this chapter because they are quite exceptional cases in Germany and Austria and completely absent in Italy. Therefore, they do not seem to be central to our comparative analysis. 62 Italian Constitutional Court, No 50/2015, judgement of 24 March 2015, ECLI:IT:COST:2015:50. 63 Boggero 2016, p. E-6.

288

K. Kössler and A. Kress

government category replacing, as of 2015, the provinces which thus became limited as umbrella entities to rural areas. Secondly, the metropolitan cities are a special category different from the provinces not only in name but also in nature in view of their additional powers. In fact, they are not only granted responsibilities that have traditionally been discharged by the provinces. Article 1 para 44 of the Delrio Law also makes them responsible for certain additional tasks, mostly linked to specific urban challenges. The fact that regional legislation may assign them even further tasks adds an element of decentralization and potential asymmetry to the establishment of Metropolitan Cities.64 With the Austrian Constitution defining the clusters of responsibilities (municipal tasks and district tasks) of the cities with own statute and the general organization of municipalities (Articles 115-120 of the Austrian Constitution), it is an ordinary Land law that establishes the city statute upon request of the respective city (Article 116(3)). Länder legislation specifies municipal tasks and responsibilities, as far as these do not fall under federal responsibility (Article 115(2)). The rather extensive rules of the Austrian Constitution clearly demarcate the limits of this legislative power of the Länder, which is further constrained by limits set through the case law of the Constitutional Court.65 The Austrian Constitution goes as far as providing the terminology to be used for municipal organs, differentiating between city councils (Stadtrat) for ordinary cities and city senates (Stadtsenat) for cities with their own statute (Article 117(1b)). Interestingly, Austrian municipalities do not enjoy a legal existential guarantee except for those cities that already had their own statute before the constitutional reform of 1962.66 This allows the Länder the freedom to arrange and re-arrange their territory into municipalities according to economic power and administrative efficiency. Despite the fact that the German Länder all regulate local affairs separately, the constitutional status of municipalities does not actually differ all that much and the subnational constitutional provisions regulating them are, in general, rather similar.67 In contrast to Italy and Austria, the German county-free cities are neither mentioned in the national nor in the subnational constitutions but only established by Länder legislation, mostly the municipal codes. Although, with the exception of the three city-states,68 all of the Länder municipal codes include provisions on county-free cities (even the Saarland, where in practice no city holds such status), the ways in which they can be established are far from uniform. While in some of the municipal codes, the county-free cities of the respective Land are simply listed by name, other codes set more specific requirements regarding, for example, the size of such cities or refer to historical statuses.69 From a legal point of view, the county-free cities take on 64 Crivello

and Staricco 2017, p. 232. Constitutional Court of Austria, VfSlg 13500/1993, judgement of 1 July 1993. See Palermo and Kössler 2017, p. 288. 66 Fallend et al. 2001, 45 and BGBl. Ner. 205/1962 para 4. 67 Burgi 2009, p. 143. 68 Boggero 2016, p. E-6. 69 See, for example, the municipal codes of Bavaria, Saxony-Anhalt or Lower Saxony. 65 E.g.

13 European Cities Between Self-government …

289

spheres of own and delegated competences of the counties in addition to the own and delegated competences that they would hold as “ordinary” municipalities. “Countyfreedom”, as such, does not have a constitutional basis whatsoever and can be revoked if deemed necessary, which happened extensively with the vast territorial reform of the 1960s and 1970s.70 Without the constitutional basis for “county-freedom”, such a revocation can, indeed, not be considered to encroach on the constitutionally guaranteed core of local self-government.71

13.5.2 Subsidiarity, General Competence and the Nature of Local Powers The Austrian Constitution is in comparison with others exceptionally detailed in its provisions regarding local government. While Article 116 establishes municipalities at the same time as territorial entities with the right to self-government and as administrative entities, the subsequent provisions regulate, among many other things, intermunicipal relations (Article 116a) and the conclusion of intermunicipal agreements (Article 116b). Article 118(1) divides the municipal sphere of competences into own competences and those delegated by the federal government or the respective Land and Article 118(2) gives municipalities the right to manage “all affairs that are in the exclusive or predominant interest of the local community, and appropriate for the community to handle within its local boundaries”. This provides the constitutional basis for the application of the principle of subsidiarity. At the same time, however, Article 118(3) furthermore lists some core responsibilities, among them, especially local development planning and comprehensive responsibilities for local policing. Oberndorfer argued already in 1982 that the detailed listing of municipal competences in the Austrian Constitution at least entails the constitutional guarantee of basic organizational aspects of the municipalities and a minimum degree of municipal competences and can therefore be considered a legal safeguard against encroachment by the Länder.72 In this regard, Austria can be considered to fulfil the Charter rule on full and exclusive powers.73 Regarding the nature of the distribution of powers, it is important to recognize that Austrian municipalities do not hold a general competence but their sphere of competence is rather determined through the assignment of tasks through ordinary legislation passed by the federal parliament and the respective Land parliament.74 This is in line with the fact that of the three countries, Austria is, indeed, the one that has accepted least of the European Charter provisions as binding, notably missing the ratification of Article 4(2), the “general competence article”. However, the above-mentioned Article 118(2) mandates that the national 70 Wollmann

2004, p. 111. et al. 1997, p. 86. 72 Oberndorfer 1982, pp. 535–536. 73 See CG(20)8 Local and regional democracy in Austria of 3 March 2011, para 84. 74 Martínez Soria 2007, p. 1037. 71 Vogelgesang

290

K. Kössler and A. Kress

and subnational enabling legislation must make the municipalities responsible for “all affairs that are in the exclusive or predominant interest of the local community, and appropriate for the community to handle within its local boundaries”. In practice, however, the non-compliance with this mandate must be ascertained by the Constitutional Court, with the enabling legislation remaining in force in the meantime,75 which contrasts sharply with countries in which municipalities have a general competence to act. In comparison, the German Basic Law appears to go into the directly opposite direction and is, from a quantitative point of view, in large parts silent on municipal matters—as pointed out above, these matters fall within the Länder’s responsibility and it is therefore the Länder constitutions that mostly regulate them. Qualitatively, the German Basic Law does, however, provide the fundamental clause in Article 28(2) that municipalities “regulate all local affairs on their own responsibility, within the limits prescribed by the laws”. This does not only, like in Austria, provide the constitutional basis for the principle of subsidiarity, but furthermore, as confirmed in rulings of the Constitutional Court, grants the municipalities general competence (Allzuständigkeit). Indeed, the Basic Law is often considered to be the prime example of a general competence clause for municipalities.76 This means, that German municipalities are entitled to act, indeed even supposed to act, with regard to all affairs of local importance on their own initiative, also when this task has not been previously assigned to them or any other government level.77 The Federal Constitutional Court interpreted “local affairs” broadly as comprising, with no regard to individual administrative capacity, all matters which concern the living together of people in municipalities and as withdrawable only on overriding grounds of public interest.78 The single Länder Constitutions reiterate these principles. The Constitution of Rhineland-Palatinate, for example, reflects the Basic Law and allows municipalities to take on “all public tasks, except where the law due to urgent public interest explicitly provides otherwise [emphasis added]”.79 While Article 28(2) Basic Law does not assign the same general competence to counties but limits their right to self-government to “their functions designated by law”, this does not matter for county-free cities which have already obtained general competence due to their dual municipal-county function which, in turn, also makes potential overlaps between municipal and county competences irrelevant. In general, Germany complies with the Charter rule on full and exclusive local government powers. Although some tasks are shared responsibilities between different levels of government, the Charter rule is to be considered “a principle requiring discretionary power for local authorities, rather than a strict rule excluding cooperation with administrative organisations”.80 75 Constitutional Court of Austria, VfSlg 6944/1972, judgement of 19 December 1972; Constitutional

Court of Austria, VfSlg 8719/1979, judgement of 21 December 1979. BVerfGE 79, 127 and BVerfGE 107,1. 77 See Mehde 2006, p. 165. 78 BVerfGE 79, 127. 79 See, e.g. Article 2 of the Municipal Code of Rhineland-Palatinate. 80 See CG(22)7 Local and regional democracy in Germany of 14 March 2012, para 123. 76 Compare

13 European Cities Between Self-government …

291

The Italian Constitution establishes local autonomy in Article 5 as a fundamental principle and immediately thereafter promises the widest possible administrative decentralization of services that depend on the state. Article 114 reiterates local autonomy and assigns “municipalities, provinces and metropolitan cities and regions […] their own statutes, powers and functions in accordance with the principles laid down in the constitution”. Article 118, indeed, assigns all administrative functions to the most decentralized level of government, i.e. the municipalities, “unless they are attributed to the provinces, metropolitan cities and regions or to the State, pursuant to the principles of subsidiarity, differentiation and proportionality”. The metropolitan cities, as well as the municipalities and provinces, also “have regulatory powers as to the organization and implementation of the functions attributed to them” (Article 117). In other words, the metropolitan cities have competence only in those matters that they have been attributed and assigned and cannot act on their own initiative in matters that go beyond their enumerated powers. The general competence that can be discerned for municipalities does not extend to the metropolitan cities, a limitation that is, in fact, supposed to prevent an overlap of responsibilities.81 With regard to full and exclusive competences, it has to be considered, though, that the Delrio Law has left quite some room for the regions to make autonomous decisions concerning the concrete implementation of its rather general directions. This has the theoretical benefit of not imposing a one-size-fit-all legalistic solution for the territorial governance of vast areas, but on the other has the downside of not clearly delineating the relationship between regions and metropolitan cities through clear legislative provisions.82 In a few crucial policy areas, metropolitan cities are, in fact, prevented from acting until further regional laws have been passed.83 Furthermore, the competences assigned to metropolitan cities do overlap with those of regions, and to some degree also with those of municipalities.84 To this end, in 2018, the Conference of the Regions has declared it necessary to revise the Delrio Law in order to enable the provinces and metropolitan cities to carry out their own fundamental functions in a cooperative system that adheres to the principles of unity and equalization rather than a conflictual decentralized one.85

13.5.3 Self-government in View of Delegated Responsibilities With the federalism reform of 2006, Germany stipulated that “federal laws may not entrust municipalities and associations of municipalities with any tasks” (Article 81 Boggero

2016, p. E-7. et al. 2016, p. 342; Furno 2015, p. 4. 83 See Crivello and Staricco 2017, p. 235 for a table that summarizes the “clashing and overlapping competences” between regions, municipalities and metropolitan cities stemming from the Delrio Law. 84 Crivello and Staricco 2017, p. 235. 85 CINSEDO 2019, p. 12. 82 Bolgherini

292

K. Kössler and A. Kress

84(1) and 85(1) Basic Law) in response to federal mandates that had—together with EU mandates—over time significantly undermined local self-government.86 The tasks delegated to German local governments are thus stemming from the Länder and can generally be divided into those that they carry out independently, i.e. without instructions, and those that they carry out according to the instructions given by the Länder authorities.87 As the only municipal code in Germany, the Bavarian municipal code particularly emphasizes county-free cities in its provision on delegated tasks that are to be carried out independently. Whereas legislation in some Länder stipulates that own tasks exceeding the local government’s capacity can be carried out in cooperation with other local governments,88 such provisions do not apply to the delegated responsibilities. The delegated responsibilities of Austrian municipalities can be conferred through both federal and Land laws and are to be carried out according to the instructions of the respective superior level of government (Article 119 of the Austrian Constitution). Through Land decree, Austrian municipalities can transfer single matters regarding their own tasks to higher level state authorities (Article 118(7) of the Austrian Constitution), but similar to German municipalities, have to carry out delegated tasks. While it is the Italian national government that has the exclusive legislative power to determine “fundamental functions of the Municipalities, Provinces and Metropolitan cities” (Article 117(p) of the Italian Constitution), regional legislation can assign them further functions, according to the regions’ respective competences (Article 118), which, so far, they have been rather reluctant to do.89 As mentioned above, the Constitution furthermore assigns the metropolitan cities “regulatory powers as to the organization and implementation of the functions attributed to them” (Article 117).

13.5.4 Administrative Supervision In the “special cities” of both Austria and Germany, any administrative supervision that is elsewhere carried out by districts or counties respectively, logically falls back to a higher-level authority. In Austria, both the federal government and the Länder

86 See

Sommermann 2006.

87 The way in which German Länder assign tasks is commonly divided into two categories, the dualist

and the monist structures of task division. Whereas the dualist structure generally differentiates between own tasks and delegated tasks from the Land, the monist approach considers all tasks carried out by local governments to essentially be local government tasks, including those that are delegated and to be implemented following Land instructions. Nevertheless, the effective difference between the two categories is minor. See Burgi 2019, pp. 87ff. 88 See, e.g. the municipal code of North Rhine-Westfalia (Article 3(5)) or the county code of Bavaria (Article 51(4). 89 Crivello and Staricco 2017, p. 236.

13 European Cities Between Self-government …

293

have supervisory powers over municipal tasks depending on their respective responsibilities as outlined in Articles 10-15 of the Austrian Constitution. They are entitled, according to both para 2(1) of the Law on Federal Municipal Supervision (BundesGemeindeaufsichtsgesetz) and the municipal codes of the Länder, to ensure “that the municipality does not violate laws and provisions while carrying out its tasks, especially that it does not exceed its sphere of competence and that it fulfils its legally incumbent tasks” To this end, the supervisory authority, either the federal government or the respective Land, has regarding own local powers the right to avail itself of information regarding any local concern, to repeal unlawful municipal orders, to review the municipal budgets and to furthermore dissolve municipal councils if these are found to be unable to fulfil their incumbent tasks due to their own fault. Interestingly, the statutes of the Upper Austrian cities of Linz, Steyr and Wels stipulate that in their cases, the Land can only repeal final decisions concerning these cities’ own powers in case of violation of the General Administrative Procedure Act. In general, however, the Congress report finds the supervisory power of the federal government and the Länder to exceed the control of legal compliance.90 In the German case, the supervisory function also goes up a level to the next higher supervisory authority, which can be administrative districts (Regierungsbezirke/präsidien)91 or administration offices of the Länder where those exist, or the Länder’s Ministries of the Interior where they do not. For tasks in the cities’ own sphere of competence, the supervisory authority is limited to overseeing the implementation of the tasks and responsibilities assigned by law and the lawfulness of their administrative actions, the so-called legal supervision (Rechtsaufsicht). An important supervisory function is that regarding municipal finance. While the legal instruments of which the Länder can avail themselves in general do not differ much, the implementation of these instruments does; for example regarding the amount and types of loans a local government can apply for.92 Together with continuous adaptations of the various Länder this contributes to a complex system of financial supervision. In Italy, only in severe cases “can the [national] government act for bodies of the regions, metropolitan cities, provinces and municipalities” (Article 120 of the Italian Constitution) and dissolve local councils. Unlike in previous decades, during which the regions could annul local decisions, the legality and constitutionality of these decisions now has to be established by the courts and not simply through the review of higher-level authorities. Today, it is only in very exceptional cases that the national government can annul an illegal local decision, following a rather strict procedure which involves the President of the Republic, the Council of Ministries and the Council of State.93

90 See

CG(20)8 Local and regional democracy in Austria of 3 March 2011, para 121. are a total of 19 such districts in four of the Länder (Baden-Württemberg, Bavaria, Hesse and North Rhine-Westfalia). They form an administrative level between the Länder and the local governments. 92 Zabler et al. 2016, pp. 6–7. 93 CG33(2017)17final Local and Regional Democracy in Italy of 18 October 2017, para 125. 91 There

294

K. Kössler and A. Kress

13.5.5 (In)Adequate Local Resources All three constitutions regulate the financial powers of local governments and more specifically of the respective types of “special cities”. Out of the three, the Italian Constitution gives least details as to the translation of these powers into practice. In Article 119, it simply states that “[m]unicipalities, provinces, metropolitan cities and regions shall have revenue and expenditure autonomy”, as well as “independent financial resources.” It assigns them the power to “set and levy taxes and collect revenues of their own”, all however, “in compliance with the Constitution and according to the principles of co-ordination of State finances and the tax system”. It furthermore provides for the establishment of an equalization fund. While the Italian Constitution does not assign specific kinds of taxes to the different government levels, it does very importantly state that “revenues raised from the above-mentioned sources shall enable municipalities, provinces, metropolitan cities and regions to fully finance the public functions attributed to them [emphasis added]”. Article 15 of Law No. 42/2009—predating the actual existence of metropolitan cities—establishes a quite far-reaching tax autonomy for metropolitan cities but also that this should be enacted via a legislative decree. So far, however, no such decree has been issued.94 The Delrio Law does not give any further details regarding the finances of metropolitan cities, either.95 In practice, this means that despite their additional functions, the metropolitan cities incur only the tax bases of the former provinces and are vastly dependent on national and regional transfers. Moreover, they have been severely affected by austerity measures adopted by the central government to cope with the economic and financial crisis.96 Both national and regional funds for metropolitan cities have generally been reduced entailing problems of underfunded mandates.97 In Austria, the distribution of financial powers is delegated to a special Financial Constitutional Law (Article 13(1) of the Austrian Constitution). The latter codified constitutional document only provides that “Federation, Länder, and municipalities in the management of their budgets have to strive for ensuring general economic balance and sustainable budgetary order” (Article 13(2), emphasis added). The Financial Constitutional Law, in turn, identifies the ways in which taxes are to be shared (or not) among the different government levels and, next to several possibilities for tax sharing and joint taxes for municipalities, does provide for exclusive municipal levies. All of them, however, depend on further federal or Land legislation (Article 6(5)) and provide for only little opportunity for municipalities, including cities with their own statute, to increase their fiscal autonomy. The German Basic Law is very detailed in its provisions regarding local finance. Article 28(2) generally establishes that “[t]he guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of 94 See elenco delle deleghe e dei decreti legislativi emanati. https://www.camera.it/parlam/leggi/del

eghe/09042ld.htm Accessed 20 February 2021. Article 92. 96 Crivello and Staricco 2017, p. 236. 97 Commissione Parlamentare per l’Attuazione del Federalismo Fiscale 2017, p. 5. 95 Compare

13 European Cities Between Self-government …

295

municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed [emphasis added].” Article 106 specifies which taxes’ revenue accrues to the municipalities and which can be assigned to associations of municipalities, which includes the counties. All of these revenues and shares of revenues depend on further federal or Land legislation, except for the revenue from taxes on real property and trades, for which municipalities can also establish the rates (Article 106(6)). The principle of concomitant finance that is enshrined in all Länder constitutions shall ensure that the delegation of functions is accompanied by adequate financial resources to carry out these additional tasks.98 Nevertheless, many German municipalities are deeply indebted, which has been argued to stem from an (over)burdening with cost-intensive responsibilities such as social welfare without adequate funding. Indeed, 17 of the 20 most indebted local governments are county-free cities, all of them located in Rhineland-Palatinate and North Rhine-Westphalia.99 In Rhineland-Palatinate, an advisory report for the Land government has suggested that, for the sake of effective local government, county-freedom—especially of smaller county-free cities—should be revoked.100

13.6 “Special Cities” as Policy-Takers Even if, for certain issues, local governments play the role of “policy-takers”—being largely subject to policy-making of other government levels—their actual influence may differ according to the level of consultation. Through their membership in local government associations, “special cities” participate in the drafting processes of national and subnational legislation. Apart from the individual consultation of cities, this is, as pointed out above,101 the main channel to have their voices heard regarding “all matters which concern them directly” (Article 4(6) of the Charter). According to Article 115(3) of the Austrian Constitution, local governments’ interests are represented by the Austrian Association of Cities and Towns (Städtebund) and the Austrian Association of Municipalities (Gemeindebund). The cities with their own statute are all members of the Association of Cities, the four cities with own statute from Lower Austria are also members of the Association of Municipalities.102 The two associations are involved in the preparatory processes of legislation and comment on bills from the perspective of local governments. Together with the federal government and the Länder, they negotiate a consultation mechanism 98 See, e.g. Article 87 of the Constitution of Saxony, or Article 73 ‘Financial Guarantee’ of the Constitution of Mecklenburg-Western Pomerania. 99 Bertelsmann Stiftung 2019, p. D 13. 100 Junkernheinreich et al. 2018, p. 95ff. 101 See above, Sect. 13.3.3. 102 See Österreichischer Städtebund – Mitglieder https://www.staedtebund.gv.at/organisation/oes terr-staedtebund/mitglieder/; compare Mitglieder des Österreichischen Gemeindebunds 2019, https://gemeindebund.at/ueber-den-gemeindebund/.

296

K. Kössler and A. Kress

concerning laws that have a financial impact on other levels of government and a stability pact that defines the permissible deficits for the respective territorial entities.103 Especially important is also their involvement in fiscal matters where they represent the municipalities during the financial equalization negotiations. Nevertheless, the monitoring report of the Congress suggests to make the consultation regarding financial equalization legally binding and to extend the participation of municipalities in the negotiation of agreements between the federation and the Länder under Article 15a of the Austrian Constitution.104 German local governments’ interests are represented through three types of municipal umbrella organizations, the national and Länder associations of counties, the associations of municipalities and the associations of county-free and other cities (“Städtetage”).105 The county-free cities themselves are both organized in the Städtetage or associations of municipalities in their respective Länder and at the federal level. At the Länder level, Land constitutions and laws establish the mechanisms for consultation and participation of municipalities and the degree of consultation or even participation during the drafting of Länder bills differ among the single Länder ranging from direct participation of local governments to the involvement of the associations to the implementation of special consultative entities.106 All county-free cities are also members of the Association of German Cities (Deutscher Städtetag) which represents their interests at the federal level. The demand of local authorities to have a constitutional guarantee for their consultation in all matters with local impact was not met in the 2006 federalism reform.107 Whereas the rules of procedure of the German Parliament (Bundestag) and the Federal Ministries provide for some involvement of the federal local government associations when local interests are affected, such involvement is much less formalised for the Bundesrat.108 Overall, the formal consultation mechanisms of local governments at the federal level have therefore been described as “meagre”.109 In Italy, the main forum for formal consultation of local authorities at the national level are two of the three so-called conferences that according to the Constitutional Court, play an essential part in upholding the principle of loyal cooperation between government actors.110 Metropolitan cities are represented in the Conference of the State, Cities and Local Autonomies (CSCLA) and the Unified Conference that brings together the CSCLA and the Conference of the State, Regions and Autonomous Provinces through their membership in the National Association of Italian Municipalities (ANCI). ANCI participates in the CSCLA both by delegating its president 103 Weninger

2015, pp. 135ff. Local and regional democracy in Austria of 3 March 2011. 105 https://www.staedtetag.de/; https://www.landkreistag.de/; https://www.dstgb.de/. 106 Sommermann 2006, p. 69. 107 Deutscher Städtetag 2004, pp. 2–3. 108 Sommermann 2006, p. 70; CG(22)7 Local and regional democracy in Germany of 14 March 2012, para 118. 109 Hellmut Wollmann as cited in Sommermann 2006, p. 69. 110 Italian Constitutional Court No 31/2006. 104 CG(20)8

13 European Cities Between Self-government …

297

and by nominating 14 mayors as representatives, at least five of which have to represent metropolitan cities.111 In addition, further bilateral commissions involve local authorities, for example, in the harmonization of budgetary processes or in the evaluation of local government needs. Despite this “noticeable pattern of consultation and participation” at the national level,112 a monitoring report of the Congress of Local and Regional Authorities from 2017 especially criticizes that “in practice local authorities are not consulted regarding the adoption of the budget, in particular in case of the implementation of budget cuts by the central government”.113

13.7 Conclusions “If the urban revolution is well recognized, there is another modern revolution almost equally widespread that has gone almost totally unrecognized. Federalism as we know it is at least as much a product of the modern era as contemporary urbanism and it has become nearly as significant in shaping modern political life.”114 When we now contemplate the link between federalism and cities, which seems so evident to us in the 21st century, we must not forget that there was a time before this era. Indeed, a long-term historical perspective reveals that most federal systems developed in still rural societies in which cities were small and within primarily agricultural economies far from the predominant status that they nowadays enjoy in many countries.115 It is only a more recent phenomenon that cities determine to a large degree the “wealth and health of nations”.116 While there certainly are on a global scale exceptions to this insight, it appears to hold true for cities in Europe. The question is then whether their status as self-governing entities has kept pace with their vastly increasing economic and political importance. This is what our chapter explored against the background of the European Charter of Local Self-Government. Before assessing the role of cities as policy-makers on the basis of the own powers which they are assigned it is important to focus on how they are entrenched. The attention that the national constitution pays to the three types of special cities indeed vary considerably. While the German Basic Law fails even to mention them and thus leaves regulation to the Länder, they are at least partly entrenched in the national constitution of Austria. But they certainly feature in the most prominent manner in the Italian Constitution, i.e. in its crucial Article 114 on the territorial organization of the state. Interestingly, the Italian Constitutional Court approved of the establishment

111 Conferenza

Stato-città ed autonomie locali, I componenti, https://www.conferenzastatocitta.it/ it/la-conferenza-stato-citta-ed-autonomie-locali/i-componenti/. 112 CG33(2017)17final Local and Regional Democracy in Italy of 18 October 2017, para 44. 113 Ibid., para 4.b. 114 Elazar 1975, p. 15. 115 Ibid., p 36. 116 Steytler 2009, p. 394.

298

K. Kössler and A. Kress

of the metropolitan regions by ordinary law without the intergovernmental consultation procedures foreseen in Article 133 regarding provincial boundary changes, even though this structural reform was evidently much more incisive than mere modifications of boundaries. Anyway, there is, unlike in Germany where “county-freedom could be easily revoked in the 1960s-70s, at least some constitutional guarantee for metropolitan cities as a legal institution, i.e. as “autonomous entities having their own statutes, powers and functions” (Article 114), even if there is no such guarantee for the existence of each one of them. By contrast, it is a curiosity of entrenchment in Austria that some cities with their own statute, those created before 1962 enjoy an existential guarantee, while others do not. As a global comparison demonstrates, legal entrenchment as such of local governments has little value if it is not accompanied by adequate powers.117 This is no less true for special cities on the European continent. Therefore, the extent to which the allocation of local powers follows certain guiding principles is crucial for local self-government to be effective in practice and the Charter in this regard refers to three principles, i.e. subsidiarity, general competence, as well as full and exclusive powers (Article 4(2-4)). Thereby, it is important to recognize that Italy’s metropolitan cities are in contrast to the special cities in Germany and Austria not first-tier local governments. This is epitomized by the scope of the subsidiarity principle which is in all three cases constitutionally enshrined. But only in Germany and Austria is this translated into a presumption of the responsibility of the special cities (like for other municipalities), while this presumption benefits in Italy the municipalities of which the metropolitan cities are composed and not the latter. As for the concrete allocation of powers through the mechanisms of enumerated competences and the general competence, there are striking differences between the three case study countries. While the national constitutions of both Italy and Germany (and in the latter case also several Land Constitutions) contain a general competence clause in favour of the municipalities, this only favours the county-free cities and not the metropolitan cities. The obvious reason is again the fact that the latter are composed of municipalities and are only in charge of the enumerated powers assigned to them. In contrast to the paradigmatic German case, Austria does not apply the principle of general competence and instead features a constitutional obligation for national and subnational enabling legislation to make municipalities responsible for all affairs of local interest that are suited to be managed locally. The reluctance of Austria to ratify Article 4(2) of the Charter, the “general competence provision”, therefore surely does not come as a surprise. As to the question of whether powers are full and exclusive (Article 4(4)), Italy stands out as a negative example. In fact, the inability of metropolitan cities to act in certain areas to a due a lack of regional enabling legislation and significant overlaps with powers of the regions and municipalities have cast doubt on the effectiveness of the reform through the Delrio Law of 2014. Local self-government through own competences may only be effective in practice, if it is not undermined by certain legal and non-legal factors. This chapter has scrutinized from a comparative perspective the impact of several such factors. Due to 117 Steytler

2005, p. 3.

13 European Cities Between Self-government …

299

the dual nature of local governments, having both own powers and delegated responsibilities, an increasing expansion of the latter and corresponding shrinking of the capacities to exercise the former functions is a serious threat to local self-government. Precisely in recognition of that, the German federalism reform of 2006 stipulated that federal legislation may not charge municipalities with any tasks. Another factor carrying a high risk of restricting self-government of special cities is excessive administrative supervision. The Congress has raised this issue especially with Austria, highlighting that extensive supervision by both the federal government and the respective Land authorities goes beyond a mere control of lawfulness.118 Taken together, among the factors undermining self-government, the problem of adequate financial resources seems to stands out. It is indeed striking that this problem even persists in the German case. To be sure, the country has taken several steps against a financial erosion of self-government, as the Basic Law identifies local tax revenues and since the federalism reform of 2006 features a mechanism to protect against federal unfunded mandates. But in spite of all that the indebtedness of municipalities has remained a serious issue, and especially so for small county-free cities. Also in the case of Austria insufficient financial autonomy of local governments has been a long-standing problem raised by the Congress,119 while in Italy this equally perennial issue has been additionally aggravated by the impact of the global financial crisis. Essentially, the financing of the metropolitan cities has depended on annual ad-hoc distributions,120 which have been affected by significant crisis-related cuts over the last years. Without doubt, therefore, the disparity between functions and funds, entailing underfunded or unfunded mandates, continues to be key limits on the ability of special cities to act as effective policy-makers. As for their role as policy-takers, such cities are in all three countries involved through local government associations in the processes of national and subnational law-making. When they are consulted regarding matters with local impact special cities may rely in all cases compared on specific representation of urban interests within broader national and/or subnational associations of municipalities or alongside them. Within the National Association of Italian Municipalities (ANCI) there is even a special Coordination Body of Metropolitan Cities that is the interlocutor of other government levels exclusively for these special cities. In Austria, the dense network of consultation procedures stands out which involve local government associations, including cities with their own statutes, as partners in negotiations on crucial financial issues. This goes beyond a mere right to be heard without any influence and responds to the above-mentioned call of the Congress on the parties to the Charter to establish formal frameworks for consultation to develop into negotiation.121 In conclusion, if the special cities in the three countries analysed were to fully exploit the efficiency gains which are today their rationale (besides their historical 118 CG(20)8,

‘Local and Regional Democracy in Austria’ (3 March 2011). ‘Local and Regional Democracy in Austria’ (3 March 2011). 120 Boggero 2016, p. E-8. 121 Recommendation 171 (2005) on consultation of local authorities: implementation of the European Charter of Local Self-Government (Articles 4.6, 5, 9.6 and 10), para 19a-c. 119 CG(20)8,

300

K. Kössler and A. Kress

rationale in Germany and Austria), they would certainly need to exceed the standards set out in the Charter. Complying with this treaty (albeit to a greater or lesser degree) has not been too difficult for the three countries because it established minimum standards in order to achieve maximum inclusiveness.122 As it has been observed more generally, if treaty law “becomes clearer and more specific the likely outcome would not be greater compliance but rather more violations and perhaps withdrawal from the treaties as well.”123 The preference for inclusiveness rather than stricter standards (and less opt-outs through reservations and declarations) also reduce the potential of Europe-wide legal harmonization, which has been hypothesized to be a long-term effect of the Charter.124 As far as special cities are concerned, such harmonization has been markedly counterbalanced in the three countries analysed by diversity that is based on specific historical trajectories and political factors.125

References Bertelsmann Stiftung (eds) (2019) Kommunaler Finanzreport https://www.bertelsmann-stiftung.de/ de/publikationen/publikation/did/kommunaler-finanzreport-2019 Accessed 28 February 2020 Boggero G (2016) The Establishment of Metropolitan Cities in Italy: An Advance or Setback for Italian Regionalism? Perspectives on Federalism 8:E1–E22 Boggero G (2017) Constitutional Principles of Local Self-Government in Europe. Brill-Nijhoff, Leiden Bolgherini S, Lippi A, Maset S (2016) In mezzo al guado: La governance subregionale tra “vecchie” province e “nuove” aree vaste. Rivista Italiana di Politiche Pubbliche 3:341–372 Burgi M (2009) Federal Republic of Germany. In: Steytler N, Kincaid J (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 137–165 Burgi M (2019) Kommunalrecht. C.H. Beck, Munich Cassese S (1997) L’aquila e le mosche: Principio di sussidiarietà e diritti amministrativi nell’area europea. In: Roversi Monaco F (ed) Sussidiarietà e pubbliche amministrazioni. Maggioli, Rimini, pp 73–83 CINSEDO (Centro Interregionale Studi e Documentazione) (2019) Autonomia differenziata: Dossier tecnico. www.regioni.it/download/news/602408/ Accessed 28 February 2020 Clark G L (1984) A Theory of Local Autonomy. Annals of the Association of American Geographers 74:195–208 Commissione Parlamentare per l’Attuazione del Federalismo Fiscale (2017) Resoconto Stenografico: Audizione 99. Seduta di Giovedì 23 febbrazio 2017 https://documenti.cam era.it/leg17/resoconti/commissioni/stenografici/pdf/62/audiz2/audizione/2017/02/23/leg.17.ste ncomm.data20170223.U1.com62.audiz2.audizione.0099.pdf Accessed 28 February 2020 Courchene T (2004) Hourglass Federalism. Policy Options: 12–17 Craig P (2012) Subsidiarity: A Political and Legal Analysis. Journal of Common Market Studies 50:72–87 Crivello S, Staricco L (2017) Institutionalizing Metropolitan Cities in Italy: Success and Limits of a Centralistic, Simplifying Approach. Urban Research and Practice 10:228–238 122 See

above, Sect. 13.3.1. and Posner 2005, p. 134. 124 Gamper 2006, p. 66. 125 See above, Sect. 13.4. 123 Goldsmith

13 European Cities Between Self-government …

301

Denters B, Rose L E (eds) (2005) Comparing Local Governance: Trends and Developments. Palgrave Macmillan, London Deutscher Städtetag (2004) Positionspapier: Kommunen im Bundesstaat stärken https://www.bun desrat.de/DE/plenum/themen/foekoI/bundesstaatskommission/unterlagen/AU-068.pdf?__blob= publicationFile&v=1 Accessed 20 February 2021 Elazar D (1975) Urbanism and Federalism: Twin Revolutions of the Modern Era. Publius: The Journal of Federalism 5:15–39 Fallend F, Mühlbock A, Wolfgruber E (2001) Die österreischische Gemeinde: Fundament oder “Restgröße” im Mehrebenensystem von Kommunen, Ländern, Bund und Europäischer Union? In: Forum Politische Bildung (ed) Regionalismus, Föderalismus, Supranationalismus. Demokratiezentrum.org, pp 45–61 Furno E (2015) Il nuovo governo dell’area vasta: Province e Città metropolitane alla luce della c.d. legge Delrio nelle more della riforma costituzionale degli enti locali. Federalism.it – Osservatorio città metropolitane 1:1–24 Gamper A (2006) Die Stellung der Gemeinden im Vergleich europäischer Bundesstaaten. In: Europäisches Zentrum für Föderalismus-Forschung Tübingen (ed) Jahrbuch des Föderalismus. Nomos, Baden-Baden, pp 66–88 Goldsmith M (1995) Autonomy and City Limits. In: Judge D et al (eds) Theories of Urban Politics. Sage, London, pp 228–252 Goldsmith J L, Posner EA (2005) The Limits of International Law. Oxford University Press, Oxford Guerra Y (2014) Le Città metropolitane: a che punto siamo? Istituzioni del Federalismo, Special Issue:5–34 Hesse J J, Sharpe L J (1990) Local Government in International Perspective: Some Comparative Observations. In: Hesse J J (ed) Local Government and Urban Affairs in International Perspective. Nomos, Baden-Baden, pp 603–621 Himsworth C (2012) Local Government in the UK. In: Moreno A-M (ed) Local Government in the Member States of the European Union: A Comparative Legal Perspective. INAP, Madrid, pp 663–685 Himsworth C (2015) The European Charter of Local Self-Government: A Treaty for Local Democracy. Edinburgh University Press, Edinburgh Ivanyna M, Shah A (2014) How Close Is Your Government to Its People? Worldwide Indicators on Localization and Decentralization. Economics: The Open-Access, Open-Assessment E-Journal 8:1–45 Junkernheinrich M et al (2018) Gebietsreform in Rheinland-Pfalz: Handlungsbedarfe und Handlungsoptionen für Landkreise, kreisfreie Städte und Ortsgemeinden. Gutachten im Auftrag des Ministeriums des Innern und für Sport. https://mdi.rlp.de/fileadmin/isim/Startseite/Dokumente/ 2_-_Teilgutachten_KVR_Junkernheinrich_Gebietsreform.pdf Accessed 28 February 2020 Leach R, Percy-Smith J (2001) Local Governance in Britain. Palgrave, Basingstoke Leuprecht C, Lazar H (2007) From Multilevel to ‘Multi-order’ Governance? In: Lazar H, Leuprecht C (eds) Spheres of Governance: Comparative Studies of Cities in Multilevel Governance Systems. McGill–Queen’s University Press, Montreal, pp 1–22 Martínez Soria J (2007) Kommunale Selbstverwaltung im europäischen Vergleich. In: Mann T, Püttner G (eds) Handbuch der Kommunalen Selbstverwaltung: Band 1 Grundlagen und Kommunalverfassung. Springer, Heidelberg, pp 1015–1044 McCrudden C (2000) A Common Law of Human Rights? Transnational Judicial Conversations on Constitutional Rights. Oxford Journal of Legal Studies 20:499–532 Mehde V (2006) Steering, Supporting, Enabling: The Role of Law in Local Government Reforms. Law and Policy 28:164–181 Oberndorfer P (1982) Die Kommunalverfassung in Österreich. In: Püttner G (ed) Handbuch der kommunalen Wissenschaft und Praxis: Band 2 Kommunalverfassung. Springer, Heidelberg, pp 535–559 Palermo F, Kössler K (2017) Comparative Federalism: Constitutional. Arrangements and Case Law. Hart Publishing, Oxford

302

K. Kössler and A. Kress

Panara C (2015) The Sub-national Dimension of the EU. Springer, Heidelberg Richardson J J (2011) Dillon’s Rule is From Mars, Home Rule is From Venus: Local Government Autonomy and the Rules of Statutory Construction. Publius: The Journal of Federalism 41:662– 685 Saunders C (1995) Constitutional Arrangements of Federal Systems. Publius: The Journal of Federalism 25:61–79 Schultze C J (2003) Cities and EU governance: Policy-takers or policy-makers? Regional & Federal Studies 13:121–147 Sommermann K-P (2006) Kommunen und Föderalismusreform. In: Bitburger Gespräche, Jahrbuch I/2005. Beck, Munich, pp 59–76 Steytler N (2005) Introduction. In: Steytler N (ed) The Place and Role of Local Government in Federal Systems. Konrad-Adenauer-Stiftung, Johannesburg, pp 1–9 Steytler N (2009) Comparative Conclusions. In: Steytler N (ed) Local Government and Metropolitan Regions in Federal Systems. McGill–Queens University Press, Montreal, pp 393–436 Syrpis P (2004) In Defence of Subsidiarity. Oxford Journal of Legal Studies 24:323–334 Vogelgesang K, Lübking U, Jahn H (1997) Kommunale Selbstverwaltung. Erich Schmidt Verlag, Berlin Weatherill S (2005) The Challenge of the Regional Dimension in the European Union. In: Weatherill S, Bernitz U (eds) The Role of Regions and Sub-National Actors in Europe. Hart Publishing, Oxford, pp 1–32 Weninger T (2015) 100 Jahre kommunale Interessensvertretung: Österreichischer Städtebund 19152015. Böhlau, Vienna Woelk J (2014) Italien: auf der ständigen Suche nach Gleichgewicht. In: Alber E, Zwilling C (eds) Gemeinden im Europäischen Mehrebenensystem: Herausforderungen im 21. Jahrhundert. Nomos, Baden-Baden, pp 105–128 Wollmann H (2004) The Two Waves of Territorial Reform of Local Government in Germany. In: Meligrana J (ed) Redrawing Local Government Boundaries. University of British Columbia Press, Vancouver, pp 106–129 Zabler S, Person C, Ebinger F (2016) Finanzaufsicht in den Ländern: Struktur, Recht und ihr (fraglicher) Effect auf die kommunale Verschuldung. Zeitschrift für Kommunalfinanzen 66:6–12 Zimmerman J F (1995) State-Local Relations: A Partnership Approach. Praeger Publishers, New York

Karl Kössler is Senior Researcher at the Institute for Comparative Federalism at Eurac Research Bolzano/Bozen, Italy, and holds a PhD in comparative public law and political science. He is the author of more than 40 peer-reviewed publications, including five books, among them Comparative Federalism: Constitutional Arrangements and Case Law (Oxford: Hart Publishing, 2017), together with Francesco Palermo. Moreover, Karl Kössler is a member for Austria of the Council of Europe’s Group of Independent Experts on the European Charter of Local Self-Government and the Coordinator of the EU-Horizon 2020 project Local Government and the Changing UrbanRural Interplay (LoGov). Annika Kress is a Researcher at the Institute for Comparative Federalism at Eurac Research, Bolzano/Bozen, Italy. She has authored and co-authored several publications, among them two studies on public participation in local decision-making. She is the Project Manager of the fouryear EU-funded project LoGov—Local Government and the Changing Urban-Rural Interplay. Her main fields of research and interest include comparative federalism, institutional innovation and better governance, local government, as well as (sub-)national constitutionalism and socio-legal approaches to constitutionalism.

Part IV

Constitutional Law in the Age of the City

Chapter 14

Urbanization, Megacities, Constitutional Silence Ran Hirschl

Contents 14.1 Introduction: A Pressing Constitutional Blind Spot . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.2 What Do National Constitutions Say About Cities? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.3 Spatial Statism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.4 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

305 309 314 318 320

14.1 Introduction: A Pressing Constitutional Blind Spot Urban agglomeration is one of the most significant demographic and geopolitical phenomena of our time. The figures are striking. In 1900, approximately 150 million people, fewer than 10% of the world population, lived in cities. As of 2020, approximately 4.4 billion people or 56% of the world population lives in cities. In other words, within the last century, the world’s urban population has increased nearly 30-fold. By 2050, approximately 7 billion people or 70% of the world population (projected at 10 billion) will reside in cities. The majority of the growth is in the Global South, but the Global North has seen its fair share of change, also at accelerating rates. An immediate by-product of the extensive urbanization of the last century is the emergence of very large cities and urban centres; while in 1900, there were only 12 cities in the world with one million residents or more, today, the number has 1 Hirschl

2020.

R. Hirschl (B) University of Toronto, Toronto, Canada e-mail: [email protected] University of Göttingen, Göttingen, Germany © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_14

305

306

R. Hirschl

passed 550.1 The forecasts for 2030 or 2050—let alone for 2100—range from the disturbing to the near-dystopian. Projections suggest that megacities of 50 million or even 100 million inhabitants will emerge by the end of the century, mostly in the Global South.2 It is hardly surprizing that the last few decades have seen a burst of novel thinking about urbanization and cities throughout the human sciences; Henri Lefebvre’s Le droit à la ville, Saskia Sassen’s work on global cities, Paul Krugman’s theorization of megacities as economies of scale, Richard Florida’s ideas about cities as magnets for the creative classes, and Benjamin Barber’s If Mayors Ruled the World are a few examples.3 Within legal academia, scholars of international and global law have identified the inter-connectivity of the urban with national and international governance levels.4 More specifically they have written on increasing involvement of cities in international policy-making, particularly in environmental protection and global climate change regimes, but also in areas such as anti-poverty, international migration and refugee policies.5 While lacking formal standing in international law, international city- and mayoral-networks have formed around an array of common goals, from joining the UN-Habitat program to vowing to implement the Paris Agreement, to demanding representation at the global and pan-European policy-making fora concerning the refugee crisis. Meanwhile, progressive cities and city leaders have assumed important roles in advancing initiatives in key policy areas, such as public housing, education, undocumented migration, and climate change. Cities worldwide have declared themselves “sanctuary cities” (often with respect to migrant and refugee-related policies) or “human rights cities”, aimed at promoting and implementing various human rights protections at the municipal level.6 By stark contrast, very little of this innovative energy has extended into the world of constitutional law, constitutional jurisprudence or constitutional thought. Though we live in the century of the city, we are still captives of constitutional structures and doctrines that were developed alongside the modern nation-state and evolved in a historical process that saw the subjugation of the sovereign city to those states. As extensive urbanization grows, an ever-widening gap emerges between what is expected of a modern metropolis, and what cities can actually deliver in the absence of adequate standing, representation, taxation powers or robust policy-making authority. At the very least, our current urban era exposes a critical discrepancy within constitutions between the rights they guarantee (social, economic and other equity-enhancing rights) and their power to make good on these guarantees. Pertinent legal discourse about cities occurs largely within the confines of administrative law or municipal law, but seldom in constitutional law. Whereas a large number of constitutions recognize local government, cities are seldom construed as

2 See,

e.g., Hoornweg and Pope 2017, Samet 2013. 1996, Sassen 2001, Krugman and Masahisa 2000, Florida 2002, Barber 2013. 4 Blank 2006, Nijman 2019. 5 See, e.g., Aust 2019. 6 See, e.g., Oomen et al. 2016. 3 Lefebvre

14 Urbanization, Megacities, Constitutional Silence

307

an equal partner or as an adequate order of government within the national constitutional scheme. In some countries, notably the United States, Canada and Australia, cities remain a non-entity, constitutionally speaking, and are subject to near-complete subnational control. What is more, most constitutions that do recognize local government fail to distinguish between small settlements and large to mega-size cities— all are often referred to generically as ‘municipalities’. But size matters a great deal in this context. The challenges facing large metropolises regarding infrastructure and service provision, transportation, housing, immigration, education, public health, environmental protection and the accommodation and management of superdiversity typical to modern urban life, are markedly different than the governance challenges faced by small villages in the countryside. This reveals a lapse in constitutional thought about cities: the conceptual lumping together of villages and towns with huge megacities. These cities are home to multimillion residents, oftentimes exceeding the population size of entire nations. More generally, these blind spots suggest that the spatial dimension of canonical constitutional thought is undertheorized and appears increasingly detached from terrain-changing (pun intended) processes of urban agglomeration. The gap is even more glaring when it comes to comparative constitutional law. Despite the tremendous renaissance of comparative constitutional law, very few, if any, comparative studies consider constitutional innovation and stalemate from the standpoint of city-state relations. In fact, the metropolis is virtually non-existent in comparative constitutional law, constitutional design, and constitutional thought, and is quietly accepted as something fully subsumed within existing federalism and ‘separation of powers’ doctrinal schemes. The Oxford Handbook of Comparative Constitutional Law,7 for example, is a major state-of-the-field collection that includes over 50 chapters spread over a thousand pages. Not a single chapter addresses the urban challenge in passing, let alone in significant detail. A similar silence resounds in virtually all other definitive handbooks, companions, and textbooks on comparative constitutional law.8 While a few country-specific constitutional accounts of city status do raise issues of general concern and applicability, there are no booklength comparative accounts of the challenges to constitutional governance posed by extensive urbanization, the rise of the metropolis, or by consequent tensions along a centre/periphery demographic and geopolitical axis. Predictably, even the recent resurgence of a periphery/centre divide in economic and political discourse has not generated much novel legal or constitutional thinking about cities or spatial dimensions of constitutionalism more generally. The rapidly expanding constitutional literature that addresses the rise of various populist, illiberal or authoritarian threats to constitutional democracy tends to overlook the political geography dimensions of these trends.9 Consequently, this otherwise bold and innovative body of scholarship invests little or no intellectual energy in developing

7 Rosenfeld

and Sajó 2012. Tushnet et al. 2013, Jackson and Tushnet 2014, Masterman and Schütze 2019. 9 See, e.g., Ginsburg and Huq 2018, Gardbaum 2020. 8 E.g.

308

R. Hirschl

constitutional designs that would aim to remedy or mitigate the spatial shortcomings of the contemporary constitutional canon. Meagre as the constitutional and especially comparative constitutional thought has been on cities, the United States is in fact one of the few countries that have shown any signs of intellectual life in this area. A few scholars have critiqued American cities’ constitutional powerlessness and lack of representation in the country’s old and inflexible federalism meta-structure. The common denominator in most of these accounts is that legal institutions, at both the state and the federal levels, limit the power of cities to pursue substantive policy goals other than economic development.10 As Gerald Frug and David Baron—pioneering scholars of American municipal law— have shown, state laws restrict the power of American cities to raise revenue and tax new forms of income, control land use, grant privileges to their residents, or develop services that compete with state governments or prominent elements of the private sector.11 Legal-theoretical developments have further limited city power, such as the rise of the public/private distinction in 19th century American legal thought, which helped to curtail municipalities’ corporate rights according to notable legal historian Hendrik Hartog.12 Whereas the business corporation was designated by law as a private entity and thus awarded various legal and constitutional protections that enable it to assert rights against state encroachment, cities, as public corporations, were wholly beholden to state power.13 Other scholars have pointed out that the subjection of American cities’ authority to state and federal legislative powers was also driven by efforts ‘to limit the scope and impact of local governments exactly at the time that immigrants were taking control of those governments….’.14 As African Americans, Latinos and other persons of colour have gained greater influence over local governments, ‘cities continue to be chastised as “ungovernable” and inherently corrupt.’15 More recent accounts of American cities’ constitutional (non)status highlight systematic federal and state legal assaults on city power, often through pre-emptive legislation.16 Several observers17 point out that progressive municipal agendas concerning schooling and education, LGBTQ rights, or corporate tax surcharge hold considerable potential and have led the way in planting the seeds of social change. A handful of legal scholars have suggested that a more decentralized, region-based notion of federalism may be required to diffuse the concentration of power in Washington.18 However, as timely and intellectually refreshing as these accounts are, they represent merely a drop when compared to the

10 Schragger

2016. and Barron 2008. 12 Hartog 1983. 13 Schragger 2018a, pp. 67–68. 14 Pritchett 2017, p. 1455. 15 Ibid. 16 Scharff 2016, 2018, Stahl 2017, Schragger 2018b. 17 E.g. Gerken and Revesz 2017, Stahl 2020. 18 See, e.g., Blank and Rosen-Zvi 2018, Fontana 2018. 11 Frug

14 Urbanization, Megacities, Constitutional Silence

309

ocean of constitutional law literature focused on the state as the spatial and conceptual epicentre of the constitutional universe. What is more, the applicability of such accounts to the main contemporary arena of urban agglomeration and megacity rise—the Global South—is questionable at best. In Asia alone, mass migration expands city populations by 120,000 per day, or about 900,000 people every week. The urbanization forecasts for the next three decades indicate that the developing world’s share of the global urban population is set to increase to over 96% by 2050, while North America and Europe will contribute less than 4%. Demographic projections for the next three decades further suggest that more than one third of the growth of the world’s urban population between 2018 and 2050 will emanate from a small number of developing world countries, notably India (where more than 400 million additional urban dwellers are projected), China (more than 250 million), and Nigeria (190 million).19 The challenges facing Kinshasa, for example, are enormous—its population has increased from 400,000 to 13 million in the space of only half a century, a 32fold increase in a city where the annual GDP per capita ranges between $200 and $500.20 Dhaka contains 20 million residents living with a city-wide density of 46,000 people/km2 (119,140/mile2 ). Consider how much greater the population density is in Dhaka than it is in other cities: it is five times that of New York City, seven times San Francisco, 12 times Paris, 16 times Toronto, and nearly 30 times Melbourne. The challenges of Kinshasa, Dhaka, Mumbai, Lagos and other huge cities of the Global South are not likely to be resolved by thought-provoking yet abstract accounts of the urban condition that all too often project a New York, Paris, or San Francisco political and demographic reality on fundamentally dissimilar urban settings in the Global South.21

14.2 What Do National Constitutions Say About Cities? The constitutional silence on cities runs much deeper than a scholarly void. In many polities worldwide, hard-wired constitutional arrangements originating from outdated concepts of spatial governance are increasingly detached from 21st century realities. Therefore, those cities that are home to the majority of humanity, do not exist constitutionally, despite being ubiquitous and crucial to every aspect of 21st century society, culture, economics and politics. Most constitutional orders that were adopted between the late 18th century and the 1970s, treat cities as creatures of the state, fully submerged within a Westphalian constitutional framework, and assigned limited administrative local governance authority. This includes constitutional orders which are federal (e.g. U.S., Canada, Australia, Mexico, Germany), unitary (e.g. France, Netherlands, Sweden), or somewhere in between (e.g. UK, Spain), covering 19 UN

DESA 2019. 2020, p. 170. 21 Ibid. 20 Hirschl

310

R. Hirschl

North America, Western Europe, as well as many former colonies in Africa, Asia, and Latin America. Their constitutional statuses range anywhere from secondary to nonexistent. Approximately 60% of the national constitutions currently in effect designate their respective country’s ‘national capital’. Only a small handful of these constitutions address these cities as metropolitan centres per se, let alone other large cities within their territorial jurisdiction. Scattered examples of non-capital city-provinces in Europe (e.g. Bremen or Hamburg in Germany or Basel-Stadt in Switzerland) are precious few exceptions to this reality, and virtually none is predicated on a deep, sweeping constitutional recognition of the metropolis as an autonomous or distinct order of government.22 American cities, even among the world’s largest, lack constitutional personality, and are principally at the mercy of state governments, constitutionally speaking. Doctrines such as ‘Dillon’s Rule’ and home rule (the ‘Cooley Doctrine’) were formulated in the mid-19th century and endorsed by the U.S. Supreme Court in the early 20th century;23 these continue to govern the constitutional status of American megacities today. The result is that American constitutional jurisprudence on city power represents a very small fraction of that country’s federalism case law. Meanwhile, America’s dated yet rigid constitutional structure equips states with the powers to draw electoral district boundaries in a way that frustrates urban representation, and, most importantly, allows state legislatures to ‘pre-empt’ city legislation. Leading experts on American cities’ constitutional status note that there are various ways in which states could frustrate cities’ efforts to address the welfare of urban residents by implementing redistricting and rezoning to dilute local power to the suburbs.24 Instances of pre-emption have expanded considerably in the last decade: states have pre-empted or overridden city ordinances on issues as diverse as local living wage regulations, gun control, municipal civil rights law, tobacco regulations, LGBTQ anti-discrimination rights, posting nutritional information in restaurants, anti-plastic and environmental protection legislation, and sanctuary city policies. Several states have also enacted laws that prohibit cities from joining international city networks. American proponents of enhanced city power may find solace in the fact that, disempowered as American cities are, Canadian cities easily win the title of constitutionally weakest in North America. Lacking any direct constitutional powers, cities and municipalities in Canada exist only as bodies of delegated provincial authority, entirely dependent on provincial legislation for their power and sources of revenue. Large Canadian cities, essentially the front-line delivery agents of Canadian multiculturalism and social integration, are governed by a constitutional order that dates back to 1867 (at which time metro Toronto’s population was less than 50,000; today it is 7.5 million). In this reckoning, ‘municipal institutions’ are creatures of provincial governments, controlled exclusively by provincial authority (through s. 92 of the 22 Bauböck

and Orgad 2020, p. 57.

23 E.g. US Supreme Court, Atkin v. Kansas, judgement of 30 November 1903, 191 U.S. 207 (1903);

US Supreme Court, Hunter v. City of Pittsburgh, judgement 18 November 1907, 207 U.S. 161 (1907). 24 See, e.g., Briffault 2018, Schragger 2018b.

14 Urbanization, Megacities, Constitutional Silence

311

Constitution Act, 1867) alongside ‘charities’, ‘eleemosynary institutions’, ‘shops’, and ‘saloons and taverns’. Given that 85% of Canada’s population lives in cities, and that over 50% of the nation’s population is concentrated in six metro areas, it would be something of an understatement to say that the constitutional non-status of cities in 21st century Canada—purportedly one of the world’s leading constitutional democracies, featuring abundant scholarly awareness for and legal recognition of diversity and differentiated citizenship—reflects serious constitutional datedness. It represents a major democracy deficit, possibly in violation of some of the country’s major constitutional pillars, as defined by the Supreme Court of Canada.25 Australia’s constitutional order also allows for near-complete state domination of cities and metropolitan governance more generally.26 While there has been some ambivalence in the High Court jurisprudence concerning the Commonwealth’s (federal) power to invest in massive urban renewal projects, Australia’s major cities remain patently underrepresented under the existing constitutional order. Unlike in Canada, Australia’s Constitution does not set out the states’ enumerated powers in a list. Instead, it enumerates only the Commonwealth (federal) Parliament’s powers (primarily in Section 51 with three in Section 52). Any legislative area not granted to the Commonwealth remain with the states since local government was a subject of colonial legislation prior to confederation and is not one of the powers given to the Commonwealth. Consequently, Australia’s large cities—Sydney (metro population 5.2 million; approximately two-thirds of New South Wales’ population); Melbourne (metro population 5 million; approximately three-quarters of Victoria’s population); and Brisbane (metro population 2.5 million; approximately half of Queensland’s population)—are largely at the mercy of state governments, which effectively control a variety of key policy areas including education, health, and policing to planning, land use, infrastructure and major utilities. Three prominent and unsuccessful attempts to amend Australia’s constitution to empower cities have either failed in referenda (1974 & 1988) or withdrawn due to lack of support (2013). The European Charter of Local Self Government (came into force in 1988) provides some basis to believe that European cities may be better off than their counterparts in the United States, Canada or Australia. It protects the basic prerogatives of local government, exercised by directly elected councils, and affirms the capacity of local authorities, within the limits of the law, ‘to regulate and manage a substantial share of public affairs under their responsibility and in the interests of the local population.’ Article 2 denotes that the principle of local self-government must be recognised in domestic legislation and, where practicable, in the constitution. However, in reality, the Charter’s net effect on enhanced city constitutional power in Europe has

25 As is well-known, in its decision in the Reference re Secession of Quebec, judgement of 20 August 1998, 2 S.C.R. 217 (1998) case, the Supreme Court of Canada stated that the Canadian Constitution is based on four equally significant underlying principles: (1) federalism, (2) democracy, (3) constitutionalism and the rule of law, and (4) the protection of minorities. None of these principles trumps any of the others. 26 Sansom and Dawkins 2013, Saunders 2005.

312

R. Hirschl

been modest at best, as the constitutional status of cities continues to reflect established national constitutional traditions largely unaltered by the Charter.27 What is more, the Charter fails to distinguish between small townships and megacities, instead referring broadly to ‘local government’. Meanwhile, the Rhine-Ruhr metropolitan region (Germany’s largest urban agglomeration with over 11 million people) lacks any autonomous constitutional standing or personality, failing to even mention it in the state constitution of North Rhine-Westphalia. The same is true of Frankfurt, described in Saskia Sassen’s seminal work as a ‘global city’ alongside New York, London, and Tokyo28 —yet not even a whisper about Frankfurt in the Hessian state constitution. While the German Basic Law protects the residual regulatory competences of municipalities in local affairs not regulated by other orders of government, it does not differentiate among the competences of small towns and large cities.29 Several constitutional orders, all of them outside North America and Western Europe, acknowledge the new reality of megacity prominence and extend fiscal autonomy and policy-making authority to such cities.30 Tokyo, the world’s largest metropolis, enjoys recognition as both a ‘city’ and a ‘prefecture’, owing to a mix of primary legislation, constitutional provisions, and political traditions that evolved from the 1940s onward. The Chinese constitution assigns special status to key cities—Beijing, Shanghai, Tianjin, and Chongqing—which are viewed as engines of economic growth and as centres of national importance. The constitution of South Korea, as well, establishes seventeen sub-national units, of which eight are designated ‘first-level’ cities (including Busan, Daegu, Gwangju, Incheon, and Seoul), and Sejong as a special self-governing city. In these settings, constitutional support of megacities reflects astute, long-term central government planning aimed at fostering megacity power as the engine of regional or national economic growth. In other instances—for example, as with recent constitutional reforms concerning urban affairs in India and Brazil—constitutional treatment of megacities is part of an overhaul of federalism. In India, the 73rd and 74th constitutional amendments (1992) were aimed at enhancing the constitutional autonomy of local government and articulated a vision of decentralized power and responsibility through the provision of constitutional status to urban centres. And in Brazil, the City Statute (2001), alongside Articles 182 & 183 of the constitution (1988), address matters of urban development and self-governance. In both countries, however, the long-standing reality of sub-national control over cities and politically-driven intergovernmental affairs have brought about mixed results.31 Arguably, the most expansive constitutional protection of cities on offer today is featured in the South African constitution (1996), where a nexus of constitutional provisions, notably Chapter 7 (ss. 151–164) of the constitution, guarantees municipal standing and empowers cities’ 27 See,

generally, Boggero 2017, Kirchmair 2015, Himsworth 2015. 2001. 29 Bumke and Voßkuhle 2019, pp. 418–420. 30 Hirschl 2020. 31 Ibid., pp. 119–128. 28 Sassen

14 Urbanization, Megacities, Constitutional Silence

313

planning and fiscal autonomy. Certain capital cities that have grown into some of the world’s largest urban centres enjoy a self-governing ‘national territory’ status (e.g. Delhi), or have been elevated from a ‘federal district’ status to a full-fledged state or sub-national unit constitutional status (e.g. Mexico City, Buenos Aires), having acquired a full state-like status, on par, constitutionally speaking, with other recognized sub-national units/states/provinces. These and other innovative constitutional mechanisms represent ways of addressing some of the challenges faced by the modern metropolis while the state maintains central constitutional control. However, in Canada, Australia, Germany, France, and the United States—all ‘old world’ constitutional settings—these innovations remain beyond the purview of viable constitutional renewal discourse, let alone practice. And even in those parts of the constitutional cosmos where city constitutional empowerment has been considered, the starting point and basic assumption of statist constitutional orders is that the city is just a component—and a largely dependent one at that—of the nation state and its statist constitutional framework. This structural problem is further exacerbated by the intersection of demographic concentration in many urban areas with constitutionally protected malapportionment, which leads certain electoral systems to systematically under-represent large urban centres and their residents. In metropoles as diverse as Toronto, Mumbai, and São Paulo, poorly apportioned electoral systems are structured in a manner that prevents increasingly large sections of a democratic polity’s population from having equitable representation in a legislative body.32 In other settings (e.g. Zürich, Chicago) the political voice of city inhabitants is reduced and practically subsumed by larger subnational units. More often than not, this effect helps to dilute the potential influence of progressive urban voices. In the United States, politically motivated redistricting and gerrymandering—controlled by state legislators—has effectively reduced the power of urban areas by slicing them up or redrawing districts such that the rural parts of each district overwhelm urban areas. Attempts to challenge the present practice of districting on constitutional grounds before the US Supreme Court have failed. In its 2018 ruling in Gill v. Whitford, dealing with blatant partisan gerrymandering in Wisconsin, the court remanded the case to lower courts, citing the plaintiff’s difficulty in establishing harm.33 Consequently, in the State Assembly elections held in November 2018, 54% of the popular vote, largely concentrated in urban areas, supported Democratic candidates, but the Republicans wound up maintaining their 63-seat majority. In its recent landmark ruling in Rucho v. Common Cause (2019), the court held (5-4 along traditional conservative-liberal ideological lines) that partisan redistricting is a political question, not reviewable by federal courts, and therefore ought to be addressed by Congress or by state legislatures, not by the judiciary.34 What is more, as Jonathan Rodden has recently shown, in first-past-the-post electoral systems, urban centres tend to be under-represented compared to rural areas, 32 Ibid.,

pp. 123–124, 127–128.

33 US Supreme Court, Gill v. Whitford, judgement of 18 June 2018, 138 S. Ct. 1916; 585 U.S. (2018). 34 US Supreme Court, Rucho v. Common Cause, judgement of 27 June 2019, No. 18-422, 588 U.S. (2019).

314

R. Hirschl

mainly as a result of the historic concentration of left-leaning voters in cities and the aggregative wide margin of progressive candidate wins in urban electoral districts compared to more moderate right-leaning candidate wins in rural districts.35 Taken together, these trends have proven to systematically weaken the political representation of cities and their residents and negatively impact predominantly urban policy issues such as transit, density and affordable housing.

14.3 Spatial Statism The constitutional silence on cities amid ever-expanding urban agglomeration worldwide reflects a longstanding state-centred vision of the constitutional order. As Nick Barber observes in his recent treatise on the principles of constitutionalism, ‘[C]onstitutionalism is a doctrine that is derived from, or at least tightly connected to, the state. It applies to those creating states and, also, to those who act within and upon the structures of the state’.36 Why does this statist project, whether principled or pragmatic, ignore urban agglomeration? Of interest here are historical accounts of the rise of the modern state and the corresponding demise of city and subnational autonomy. It is well-known that the process of state formation in Europe involved the subjugation of the medieval city. Medieval and early-modern city-states’ and autonomous communities’ powers were gradually yet effectively subordinated to the growing authority of the early-modern state, with its quest for full control over its territory and people.37 New, state-based citizenship and equivalent political membership regimes gradually replaced citybased ones.38 In some cases, the subjugation of city powers by the state-led leviathanbuilding project was swift—either as a result of clear power imbalances or because pooling military or economic resources of several smaller units to create a larger one served the interests of weakened city-states. In other instances, emerging states had to resort to active disciplining and open confrontation with recalcitrant, selfasserting cities, adamant on maintaining their sovereignty and authority over their territory, people, capital, and knowledge. Given the considerable variance in how citystates were incorporated into the modern state, it is clear that a range of historical and regional contingencies influenced this evolution alongside broader geographical, cultural, and economic factors. Sooner or later, however, the vast majority of hitherto autonomous cities (at least in Europe) were ‘nationalized’, enveloped by the earlymodern state, their power giving way to the state-centred conception of sovereignty and spatiality. Whereas in 1500, the city-state in all its varieties was the dominant political unit in Europe, by 1800 it had given way to the early-modern state and its overseas colonies. 35 Rodden

2019. 2018, p. 11. 37 See, e.g., Le Galès 2002, Spruyt 1996. 38 See, generally, Prak 2018. 36 Barber

14 Urbanization, Megacities, Constitutional Silence

315

Subsequent political paths converged, with few exceptions, upon a single form of a medium-sized, centralized state, with the later addition of federalism as a jointgovernance pact between subnational administration and a national government. It was during this phase of the evolution of city-state relations that substantial urban communities lost much of their previous autonomy and status. As states sought to establish their monopoly over the legitimate exercise of physical force and authority, enhance their influence on economic and social life, and, most importantly, control ‘who gets what, when and how’ within their respective territories, they also laid stronger and stronger claims to primacy as the focus of popular loyalty and collective identity.39 As cities became nationalized, state-centred bureaucracies and governance structures emerged, they were increasingly perceived as mere components, however important, of nation-states, and as cogs, however central, in national economies.40 As Gerald Frug has shown in his seminal Harvard Law Review article written in 1980, the legal conceptualization of the city during that grand transformation was consistently narrowed to a powerless ‘creature of the state’ and to an entity authorized by the state to solve purely local problems. In that process, Frug argues, ‘it is not simply that cities have become totally subject to state control—although that itself demonstrates their powerlessness—but also that cities have lost the elements of association and economic strength that had formerly enabled them to play an important part in the development of Western society’.41 As the statist project of national constitutions (both centrist and federalist) achieved prominence, the effect on the constitutional imagination with respect to political geography and spatial autonomy was immediate and complete. This led to a dearth of creative thinking concerning city governance. One prominent consequence of this political atrophy is the exclusion of cities from the purview of contemporary federalism, both in theory and in practice. Historically, federalism has been developed and deployed in response to pooling factors, including military interests (both defensive and offensive) and economic welfare.42 A group of interested units join together into one of several types of confederated entities—multi-tribe (e.g. the ancient Israelites), multi-nation (e.g. the Iroquois Confederacy), multi-republic (e.g. the Helvetic Confederation), and multi city-state (e.g. the Hellenic Achaean League, the Lombard League in northern Italy, or the northern European Hanseatic League).43 In modern federations, however, and in the field of contemporary constitutional studies, the near-exclusively applied ‘unit’ of federalism is the state and its equivalents (provinces, Länder, cantons, regions, emirates, etc.). As Heather Gerken writes of the American context, ‘[f]ederalism scholars have typically confined themselves to states, the only subnational institutions that

39 See

Tilly 1992; Taylor 2004. Holding the monopoly over the legitimate use of physical force by a government in a well-defined territory is, according to Max Weber, one of the defining features of the state. 40 Taylor 2004, p. 15. 41 Frug 1980, pp. 1119–1120. 42 Palermo and Kössler 2017, p. 69. 43 See, e.g., Davis 1978, Elazar 1987.

316

R. Hirschl

possess sovereignty’.44 With few exceptions, the same is true in other federalist settings around the world. Worldwide, the Westphalian model continues to dominate the theory and practice of federalism, with its notion of sovereign territorial states divided along ethnic, religious, and linguistic cleavages and reflecting conventional notions of nationhood, peoplehood, and/or historical patterns of conquest and settlement. In this universe, cities, home to the majority of mankind, ubiquitous and crucial to every aspect of 21st century society, culture, economics and politics, are virtually absent, ‘the forgotten stepchildren of both federal politics and scholarship’.45 Tellingly, very little attention has been devoted to this topic in political theory, let alone in constitutional theory, to federalism’s “unit” question. This gap is particularly troubling, as Jacob Levy observes, considering the prevalence of federalism and the dominant status of state-sized, subnational units in contemporary federalism.46 For Levy, one of the few authors to have addressed the unit size issue, ‘federations are made of provinces that are too few, too large, too rigid, too constitutionally entrenched, and too tied up to ethnocultural identity to match theories based on competitive federalism, Tiebout sorting [supposed optimization of public service provision based on competition across local jurisdictions], democratic selfgovernment, or subsidiarity.’47 If the leading theories of federalism are to be taken seriously, Levy argues, they warrant a much more flexible, decentralized model of federalism, composed of smaller constituent units than the typical state- or provincesized ones.48 As Daniel Weinstock notes, if we are to take ideals of subsidiarity and stake-holding seriously, it is unclear, why ‘both theoretical discussions about, and the practice of, real-world federal arrangements [should stop] at the level of provinces, länder, U.S. states and the like…’ and continue to exclude cities.49 The exclusion of cities from modern federalism, like the constitutional silence on urban agglomeration or the rise of the metropolis, reflects a confluence of factors, including institutional and intellectual path dependence, amendment difficulty and lack of political will, at times proactive resistance, to empowering cities. It may also reflect the fact that cities, unlike capital, are fixed in place; this anchoring spatial factor means that cities have no credible “exit” or “capital flight” options and are therefore limited in their bargaining power. Additionally, large cities tend to be culturally diverse, cosmopolitan and socially progressive—a fact that often does not bode well with the worldviews and policy-preferences of central governments or voters in semi-urban and rural areas. Above all, however, it may reflect and perpetuate an embedded tendency in public law that Ayelet Shachar and I have termed spatial statism50 —the notion that public

44 Gerken

2010, p. 21. 2014, p. 295. 46 Levy 2007. 47 Ibid., p. 459. 48 Ibid., pp. 460–463. 49 Weinstock 2014, pp. 269–270. 50 Hirschl and Shachar 2019. 45 King

14 Urbanization, Megacities, Constitutional Silence

317

law, through its spatial ordering, partakes in sustaining the centrality of a stateoriented locus and focus of sovereign control of its territory in the face of competing forces, real or perceived. Of course, a range of economic forces transcend the power of the state, knowing no borders: investment, trade, capital mobility, knowledge transfer, tax evasion, etc. Politically, too, international organizations are proliferating and transnational standard-setting is on the rise. Nonetheless, core aspects of ‘classical’ public law remain largely statist, especially those focused on territoriality, a vital dimension of sovereignty. There remains a strong statist grip over zoning and land policy, takings, public works and infrastructure investment, social welfare, and control over intergenerational wealth transfer through inheritance and property taxation, to say nothing of the intensely government-controlled military, policing intelligence and surveillance domains. Statist concern with territorial sovereignty also manifests in less obvious arenas, from the growing anxiety over immigration, borders and ‘uncontrolled’ entry to the doctrine of permanent sovereignty over natural wealth and resources, from state control of religious sites and attire in the public sphere to the rise of statist neo-secessionism driven by nationalist-populist trends. Taken in conjunction, these ongoing statist projects suggest that the state is alive and well as a potent actor in the public law arena. Global markets have weakened the state’s fiscal autonomy, but have fallen short of dismantling a core element of the Westphalian order: the state’s legal grip over its territory. Facing existential threats to its long-standing dominance, the state has modified and reinvented itself to remain a key player in the struggle for spatial control. A similar statist impulse, I argue, also drives the state’s innate concern regarding the rise of large, densely populated, politically significant and economically potent cities. This, in turn, points to the continued relevance, albeit in a new configuration, of classical works in political sociology and state theory, from Weberian accounts to James Scott’s Seeing Like a State, that emphasize the ability to consolidate and enforce laws over a defined territory as one of the constitutive factors for the rise and endurance of the modern state. As several public law theorists have pointed out, the state is a core building block, indeed a sine qua non concept, in public law;51 it has never abandoned its claim ‘to be the centre of the legal universe’.52 At least when it comes to constitutional control of cities, where the state remains the master of the domain, that claim certainly holds true. The state’s latent trepidation of the big city as a site of political volatility, of potential challenge to central authority, and also even of possibly revolutionary massmobilization that threatens to topple the regime also plays into the statist reluctance to empower urban centres. The sheer number of megacity dwellers has long surpassed that of many nation states. The proximity of the ‘haves’ and the ‘have nots’ is potentially explosive. Other spatial factors that characterize cities (e.g. human density and connectivity, the rapid spread of ideas, large strategically located public congregation spaces, the visibility of government buildings and symbolic monuments and

51 Loughlin

2018. 2018.

52 Fassbender

318

R. Hirschl

squares), further mark the metropolis as a source of potential threat to state hegemony. (Little wonder that one of the first measures taken by besieged regimes when attempting to calm popular uprisings is to enforce curfew in big cities.) Large cities can serve as nurseries for potentially unruly radicalization, leading to an undermining of state power, possibly even to political revolution. By their very nature, megacities are densely populated and are home to critical masses of people. They facilitate close human interaction and feature public spaces where large crowds can easily congregate, thereby allowing for a rapid spread of ideas, including potentially socially and politically destabilizing ones. Cities, in particular capital cities, are home to important government buildings, national monuments, and media outlets that provide concrete targets for protestors; the popular capture of these emblems of power has both practical and symbolic meaning. The Occupy Wall Street movement in New York, the massive, at times veering-out-of-hand demonstrations that took place in Toronto or Hamburg against G20 leaders and their pro-globalization and pro-corporations plans, or the riots in US cities following the killing of George Floyd may ultimately be controllable. But as the street warfare in Hong Kong, mass demonstrations in Tahrir Square, or the wide protests in the streets of Santiago suggest, the megacity features a potentially explosive combination of people, ideas, and spatial conditions that from a statist point of view is better kept under check. In summary, national constitutions reflect a ‘seeing like a state’ vision of the territories they govern and, more often than not, a dated conceptualization of the territory’s geographical organization and demographic composition. Modern states— conquerors of the city—will not entertain the possibility of emancipating cities unless doing so would benefit the states themselves. Accordingly, constitutional orders continue to subordinate the local and disregard the imperative of urban autonomy. Granted, self-emancipatory measures taken by an increasing number of large cities worldwide, whether through international city networks, so-called urban citizenship, sanctuary city policies, or human rights city declarations, have had considerable impact on members of marginalised and disenfranchised groups living in those cities. With few exceptions, however, these initiatives do not enjoy the unflagging support of central governments and continue to operate beside or at the margins of the constitutional order. What is more, human rights cities may promise various rights protections, but the actual duty to realize such rights is often well beyond cities’ legal or constitutional ambit. No support or resources are provided by the state, which remains the primary, and often the only, relevant agent and duty bearer of human rights commitments vis-à-vis the international arena.53

14.4 Conclusion Contemporary constitutional thought and constitutional practice have thus far failed to address one of the major challenges of modern governance: urban agglomeration 53 Kalb

2017, p. 88.

14 Urbanization, Megacities, Constitutional Silence

319

and the rise of the megacity. While discourse about local government does exist at the margins of the constitutional domain, it forms a small, infrequently discussed and sketchily studied part of that domain. One would be hard-pressed to name more than a handful (at best) of major constitutional treaties on the matter, whether jurisprudential or scholarly. What is more, the conceptual basis of the scant treatment of the subject in constitutional law, essentially treating local government—rural villages, suburban townships and huge urban centres alike—as similar entities, constitutionally speaking, is well too crude, ill-equipped, and possibly even altogether outmoded, in addressing one of the major transformations in how human societies are organized. In the face of unequivocal scientific evidence of a mounting urban challenge worldwide, and in particular in the Global South, the silence of constitutional law and scholarship is deafening. Constitutional law—in its capacity as the legal foundation for the state’s institutions and their prerogatives—creates and reflects a statist understanding of the polity’s legal order. Consequently, national constitutions, constitutional jurisprudence, and constitutional scholarship overlook the city and urban agglomeration more generally. This state of affairs appears unsustainable. As the world is urbanizing at an extraordinary rate, new thinking about constitutionalism and urbanization is desperately needed. Taking urban agglomeration and the megacity seriously means shaking up the rather stagnant constitutional thought of spatial governance, fixated as it is on stateor province-based federalism, regions, and electoral districts, failing to address the urban agglomeration that the world is now seeing on a massive, unprecedented scale. Specifically, there is an acute need to consider a new place for large cities as constituent ‘units’ in the theory and practice of federalism and other multi-layered spatial governance structures, as well as in electoral systems of unitary states. In the current ‘age of the city’, large cities are not only the chief service providers for, and home to, the majority of each country’s members, but are also distinguished within the polity by their function as hubs of diversity and close human interaction. Their unmatched diversity (let alone their sheer population size, in many cases much larger than dozens of sovereign nation states) is more conducive to cultural openness, ideational pluralism and competitive democracy, than are considerably less diverse or far smaller settings. Furthermore, notions of subsidiarity, commonly deployed with respect to the status of constituent units in transnational constitutional orders, have considerable theoretical purchase in the current urban age, and thus should be routinely invoked in discussions concerning enhancement of urban centres’ constitutional power. Taking subsidiarity seriously in this context may open the door for granting qualified autonomy to large urban centres in interpreting constitutional norms that are pertinent to the urban context, emphasizing a more pluralistic and spatially-conscious view of public law, and the relevance of closely related concepts such as the margin of appreciation, non-territorial federalism, and community standards in the interpretation and application of constitutional norms. These different measures can be thought of as embryonic pathways towards a constitutional realization of the ‘right to the city’. Even more importantly, such transformed constitutional discourse would address a key aspect of city underrepresentation, namely the constitutional nonexistence of

320

R. Hirschl

large urban centres qua distinct order of government, and more generally, the great constitutional silence surrounding today’s extensive urbanization and the consequent rise of megacities.

References Aust H (2019) The shifting role of cities in the global climate change regime: From Paris to Pittsburgh and back? Review of European, Comparative & International Environmental Law 28(1):57–66 Barber B R (2013) If Mayors Ruled the World: Dysfunctional Nations, Rising Cities. Yale University Press, New Haven Barber N W (2018) The Principles of Constitutionalism. Oxford University Press, New York Bauböck R, Orgad L (eds) (2020) Cities vs States: Should Urban Citizenship be Emancipated from Nationality? European University Institute Working Paper RSCAS 16:1–86. https://cadmus.eui. eu/handle/1814/66369 Accessed 18 February 2021 Blank Y (2006) The City and the World. Columbia Journal of Transnational Law 44(3):875–939 Blank Y, Rosen-Zvi I (2018) Reviving Federal Regions. Stanford Law Review 70:1895–1993 Boggero G (2017) Constitutional Principles of Local Self-Government in Europe. Brill-Nijhoff, Leiden Briffault R (2018), The Challenge of the New Preemption. Stanford Law Review 70:1995–2027 Bumke C, Voßkuhle A (2019) German Constitutional Law: Introduction, Cases, Principles. Oxford University Press, Oxford/New York Davis S R (1978) The Federal Principle: A Journey Through Time in Quest of a Meaning. University of California Press, Berkeley/Los Angeles Elazar D J (1987) Exploring Federalism. University of Alabama Press, Alabama Fassbender B (2018) The State’s Unabandoned Claim to Be the Center of the Legal Universe. International Journal of Constitutional Law 16(4):1207–1214 Florida R (2002) The Rise of the Creative Class. Basic Books, New York Fontana D (2018) Federal Decentralization. Virginia Law Review 104(4):727–795 Frug G (1980) The City as a Legal Concept. Harvard Law Review 93(6):1057–1154 Frug G, Barron D J (2008) City Bound: How States Stifle Urban Innovation. Cornell University Press, Ithaca Gardbaum S (2020) The counter-playbook: Resisting the populist assault on separation of powers. Columbia Journal of Transnational Law 59(1) Gerken H (2010) Foreword: Federalism All the Way Down. Harvard Law Review 124(1):6–74 Gerken H, Revesz J (2017) Progressive Federalism: A User’s Guide. Democracy 44. https://dem ocracyjournal.org/magazine/44/progressive-federalism-a-users-guide/ Accessed 27 March 2020 Ginsburg T, Huq A Z (2018) How to Save a Constitutional Democracy. The University of Chicago Press, Chicago Hartog H (1983) Public Property and Private Power: The Corporation of the City of New York in American Law 1730-1870. Cornell University Press, Ithaca, NY Himsworth C (2015) The European Charter of Local Self-Government: A Treaty for Local Democracy. Edinburgh University Press, Edinburgh Hirschl R (2020) City, State: Constitutionalism and the Megacity. Oxford University Press, New York Hirschl R, Shachar A (2019) Spatial Statism. International Journal of Constitutional Law 17(2):387– 438 Hoornweg D, Pope K (2017) Population Predictions for the World’s Largest Cities in the 21st Century. Environment and Urbanization 29(1):195–216 Jackson V C, Tushnet M (2014) Comparative Constitutional Law. Foundation Press, New York

14 Urbanization, Megacities, Constitutional Silence

321

Kalb J (2017) The State of the City and the Future of Human Rights: A Review of Global Urban Justice. Columbia Human Rights Law Review 75:75–97 King L (2014) Cities, Subsidiarity and Federalism. In: Fleming J E et al (eds) Federalism and Subsidiarity: NOMOS LV, New York University Press, New York, pp 291–331 Kirchmair L (2015) International Law and Public Administration: The European Charter of Local Self-Government. Pro Publico Bono 3:124–135 Krugman P, Masahisa F (2000) A Monopolistic Competition Model of Urban Systems and Trade. In: Huriot J M et al (eds) Economics of Cities: Theoretical Perspectives. Cambridge University Press, Cambridge, pp 167–216 Le Galès P (2002) European Cities: Social Conflicts and Governance. Oxford University Press, New York Lefebvre H (1996) The Right to the City. In: Kofman E et al (eds) Writings on Cities. Blackwell, Oxford, pp 63–184 Levy J T (2007) Federalism, Liberalism and the Separation of Loyalties. American Political Science Review 101(3):459–477 Loughlin M (2018) The State: Condition Sine Qua Non. International Journal of Constitutional Law 16(4):1156–1163 Masterman R, Schütze R (eds) (2019) The Cambridge Companion to Comparative Constitutional Law. Cambridge University Press, Cambridge Nijman J (2019) The Urban Pushback: International Law as an Instrument of Cities. Proceedings of the ASIL Annual Meeting 113:119–123 Oomen B, Davis M F, Grigolo M (eds) (2016) Global Urban Justice: The Rise of Human Rights Cities. Cambridge University Press, Cambridge Palermo F, Kössler K (2017) Comparative Federalism: Constitutional Arrangements and Case Law. Hart Publishing, Oxford/Portland Prak M (2018) Citizens without Nations: Urban Citizenship in Europe and the World, c.1000-1789. Cambridge University Press, Cambridge Pritchett W E (2017) City Power in a New Era of Localism. Fordham Urban Law Journal 44:1449– 1461 Rodden J (2019) Why Cities Lose: The Deep Roots of the Urban-Rural Divide. Basic Books, New York Rosenfeld M, Sajó A (eds) (2012) The Oxford Handbook of Comparative Constitutional Law. Oxford University Press, Oxford Samet R H (2013) Complexity, the Science of Cities, and Long-Range Futures. Futures 47:49–58 Sansom G, Dawkins J (2013) Australia: Perth and South East Queensland. In: Slack E, Chattopadhyay R (eds) Governance and Finance of Large Metropolitan Areas in Federal Systems. Oxford University Press, New York, pp 10–48 Sassen S (2001) The Global City: New York, London, Tokyo. Princeton University Press, Princeton Saunders C (2005) Constitutional recognition of local government in Australia. In: Steytler N (ed) The Place and Role of Local Government in Federal Systems. Konrad-Adenauer-Stiftung, Johannesburg, pp 47–63 Scharff E (2016) Powerful Cities? Limits on Municipal Taxing Authority and What to Do About Them. New York University Law Review 91(2):292–343 Scharff E (2018) Hyper Preemption: A Reordering of the State-Local Relationship? Georgetown Law Journal 106(4):1469–1522 Schragger R C (2016) City Power. Oxford University Press, New York Schragger R C (2018a) When White Supremacists Invade a City. Virginia Law Review Online 104:58–73 Schragger R C (2018b) The Attack on American Cities. Texas Law Review 96(6):1163–1233 Spruyt H (1996) The Sovereign State and Its Competitors. Princeton University Press, Princeton/Chichester Stahl K (2017) Preemption, Federalism and Local Democracy. Fordham Urban Law Journal 44:133– 179

322

R. Hirschl

Stahl K (2020) Local Citizenship in a Global Age. Cambridge University Press, New York Taylor P J (2004) World City Network: A Global Urban Analysis. Routledge, London/New York Tilly C (1992) Coercion, Capital and European States, AD 990-1992. Blackwell, Malden/Oxford Tushnet M, Fleiner T, Saunders C (eds) (2013) Routledge Handbook of Constitutional Law. Routledge, London UN DESA (2019) World Urbanization Prospects: The 2018 Revision. United Nations, New York. https://population.un.org/wup/Publications/Files/WUP2018-Report.pdf Accessed 26 March 2020 Weinstock D (2014) Cities and Federalism. In: Fleming J E et al (eds) Federalism and Subsidiarity: NOMOS LV. New York University Press, New York, pp 259–290

Ran Hirschl (Ph.D., Yale) is Professor of Political Science and Law at the University of Toronto, holder of the Alexander von Humboldt Professorship in Comparative Constitutionalism at the University of Göttingen, and a Fellow of the Royal Society of Canada. His research interests focus on comparative public law, and in particular the intersection of comparative politics and comparative constitutionalism. He is the author of four books: City, State: Constitutionalism and the Megacity (Oxford University Press, 2020); Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014 & 2016); Constitutional Theocracy (Harvard University Press, 2010); and Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2004 & 2007), as well as over one hundred articles and book chapters on comparative constitutionalism and judicial review, the political sociology of public law, the judicialisation of politics, constitutional law and religion, and the methodology of comparative constitutional inquiry.

Chapter 15

Constitutional Law, Federalism and the City as a Unique Socio-economic and Political Space Erika Arban Contents 15.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2 Cities as Unique Socio-economic and Political Spaces . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2.1 The Historic Importance of Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2.2 The Economic Importance of Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2.3 The Political and Cultural Importance of Cities . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.2.4 Towards a Definition of Cities as Unique Socio-economic and Political Spaces . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3 Cities and Federalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3.1 The City in the Work of Johannes Althusius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.3.2 Federal Capital Cities and Cities with Special Status . . . . . . . . . . . . . . . . . . . . . . . 15.3.3 Constitutional Entrenchment of Local Governments . . . . . . . . . . . . . . . . . . . . . . . 15.4 A Normative Agenda for Cities in Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4.1 The Principle of Subsidiarity and the Constitutional Entrenchment of Cities . . . . . 15.4.2 The Constitutional Entrenchment of Legislative Powers for Cities . . . . . . . . . . . 15.4.3 Shared-Rule and Representation at the Centre . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4.4 Direct Election of City Representatives . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.4.5 Cities and External Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

324 326 326 328 330 332 332 333 335 336 338 339 340 341 341 342 342 343

Abstract This chapter builds upon the increased importance that cities have acquired in recent years. To this end, cities can be seen as the engines of development, innovation, cultural and social interaction, expressing the tensions between diversity and social cohesion. Being places of conflict and innovation, of solidarity and cohabitation of diverse people, cities are faced with unique challenges. Yet, they remain largely neglected as autonomous subjects in constitutional law and federalism theory. In proposing a definition of cities as unique socio-economic and political spaces, strategic for building new modes of governance and reconcile diversity and social cohesion, the chapter invites a more substantive reflection on the role and E. Arban (B) Melbourne Law School, Centre for Comparative Constitutional Studies, Melbourne, Australia e-mail: [email protected] Faculty of Law, University of Antwerp, Antwerp, Belgium © t.m.c. asser press and the authors 2021 Hirsch Ballin et al. (eds.), European Yearbook of Constitutional Law 2020, European Yearbook of Constitutional Law 2, https://doi.org/10.1007/978-94-6265-431-0_15

323

324

E. Arban

place of cities in constitutional law, and sketches a preliminary normative agenda for future constitutional reforms in this sense. Keywords Cities · Constitutional law · Federalism · Local governance · Socio-economic and political space

15.1 Introduction Cities are rapidly emerging as important actors both domestically and internationally. In this sense, cities have become key players in the economic, political, cultural and religious scene. Some cities enjoy an exceptional historical importance, while others are at the forefront of critical policy campaigns (such as those for a cleaner environment or migrant protection), often independently from central and peripheral governments. Also, many cities continue to lead the economic and social development of territories. At the same time, this increased visibility of cities—and urbanisation more in general—also has drawbacks: for example, in several countries particularly in the Global South an uncontrolled expansion of megacities has brought with it major socio-economic inequalities and serious environmental concerns. The rapid growth of cities as global actors, however, has not been matched by an adequate change in their constitutional status and in the legal tools available to them to effectively perform their increasingly demanding tasks. In fact, most constitutions remain silent when it comes to cities, which are therefore not regarded as autonomous constitutional subjects.1 As a topic of academic inquiry, cities have been extensively studied in the social sciences, but were largely neglected by constitutional law theorists. If at all, legal scholars have researched cities mainly as subjects of international, urban or local governance law. Even in federal constitutional theory cities have essentially been ignored, with few exceptions coming principally from North American academics.2 The broad neglect of cities in federalism is even more surprising giving the natural articulation of federal systems in various layers of government, which would make it easier to include them in the general discourse on division of powers. The reasons behind this inattention towards cities in federalism scholarship are numerous, but they may be traced back to the fact that for a long time federalism has mainly been understood as a dual (federal-state) dynamic: within this scenario, cities have thus struggled to find their space as autonomous federal entities.3 1 In this regard, Ran Hirschl has recently authored the first all-encompassing work trying to address

constitutional silence on cities including a comparative analysis of cities and their constitutional status. This work will finally bridge a gap in scholarship in addition to providing a theorisation of cities in constitutional law, see Hirschl 2020. 2 In the US and Canada, notable scholars who have worked on cities and federalism include Hoi Kong, Richard Schragger, Richard Briffault, Gerald Frug, Yishai Blank, among others. 3 This claim is generic and needs to be nuanced: some constitutions, especially those recently drafted or amended, feature local governments and municipalities, which obviously include cities. When

15 Constitutional Law, Federalism and the City …

325

The broad question thus becomes: should cities be constitutionally recognised as autonomous entities and, if so, on what grounds? In offering a positive answer to this query, this chapter proposes a definition of cities as unique socio-economic and political spaces from the perspective of law, particularly by looking at their historical and economic relevance. In view of this novel characterisation, it argues that cities should feature more prominently in constitutional law, as they could become strategic levels of government where to experiment new modes of governance better suited to balance their economic and socio-political dimension. This chapter thus hypothesises that (i) cities should be construed as unique socio-economic and political spaces because of their historical and economic importance; and (ii) they should consequently have a more robust profile in constitutional law. In spelling out some preliminary lines of inquiry on the necessity to rethink the (constitutional) nature of cities in opposition—or in addition—to local governments or municipalities, this contribution adds to the nascent legal scholarship in the field. The chapter should be understood as an invitation for academics, constitutional drafters and theorists to take the changed role of cities more seriously, and reflect on how constitutional law could better capture such changes. The two-fold assumption just outlined would be very important for cities, both in a theoretical and in a practical way, as it would equip them with more appropriate tools to carry out their numerous functions, while at the same time strengthen their negotiating position and profile, especially in their relationship with central governments. From a methodological standpoint, this chapter adopts both a theoretical/analytical approach and a normative method. Although the theoretical framework in which the argument is situated is that of federalism theory for the reasons that will be better illustrated in the remainder of the essay, nothing prevents to extend some of the hypotheses and conclusions also to realities that are not federal. The chapter is structured in three sections. Section 15.2 proposes a definition of cities as unique socio-economic and political spaces in view of their historic, economic, cultural and political importance. Aspirational concepts such as solidarity, city identity and urban citizenship will also be briefly discussed. Section 15.3 examines cities and federalism, the latter used as an analytical tool through which cities can be thought of as an entrenched level of government where to experiment new forms of governance better suited to urban challenges and tasks. Section 15.4 contains a normative agenda intended to suggest ways to empower cities with more autonomy.

speaking of cities as constitutional subjects, I intend cities as entities independent from (or opposed to) local governments and municipalities. I will revert to this point later in the chapter.

326

E. Arban

15.2 Cities as Unique Socio-economic and Political Spaces Section 15.2 of this chapter proposes a characterisation of cities as unique socioeconomic and political spaces4 in light of their historic, economic, political and cultural relevance. This novel understanding of cities supports the argument in favour of the positioning of cities in constitutional law independent from local governments and municipalities, and the need to forge new modes of governance for them (which will be done in Sects. 15.3 and 15.4, respectively).

15.2.1 The Historic Importance of Cities5 Cities have always played a fundamental historical, political, economic, social, cultural and religious role. As Martindale once observed, ‘[w]orld history is city history.’6 In addition to being powerful economic actors (see infra), cities have a longstanding history of dominance and prominence in politics, arts, culture, religion, military matters, etc. Simply by looking at Europe, it is apparent that its history is mainly a history of formidable cities: Athens and Rome in ancient times, and later Venice, London, Paris, Constantinople, Vienna or Antwerp, just to name a few. But also in North America, cities such as New York, Boston, Philadelphia, or San Francisco have deeply shaped the historical, economic, political and social development of the United States. Elsewhere, (colonial) cities like Colombo, Singapore, Mumbai, or Hong Kong have pioneered the expansion of South Asia and the Pacific Rim. Some cities even pre-date the formation of the country to which they belong.7 The Greek π´oλις (polis) was a well-developed and self-sufficient entity on which the whole system of ancient Greece was based, and whose influence also extended to the Roman time, where some cities were granted self-rule and considered free entities.8 However, in ancient times there was ‘little understanding of the city’ to the point that philosophers such as Plato and Aristotle ‘held the middle classes— typical urban strata—in contempt and wished to subordinate them to warriors and

4 The concept of ‘space’ as used in this characterisation of cities partially builds on the idea of ‘legal

spatiality’ as elaborated by Hirschl and Shachar and referring to ‘how considerations of space, place, and density impact the conceptualization and utilization of state power in a world of growing complexity and interdependence’: see Hirschl and Shachar 2019, p. 391. This concept of ‘space’ will not be further elaborated in this chapter. 5 This section extensively builds on Arban 2019, p. 232. 6 Martindale 1958, p. 37. 7 Blank 2007, p. 422. 8 Meehan et al. 2007, p. 4.

15 Constitutional Law, Federalism and the City …

327

philosophers.’9 For this reason, the origins of the modern city rests more on Roman— rather than Greek—tradition, as ‘a considerable number of medieval cities took form at the same location points as old Roman garrisons and trade centres.’10 The modern European city is thus centuries (if not millennia) old.11 Its importance and development thrived during the Middle-Ages, when cities were also physically protected spaces, considering that they were all equipped with walls and ‘gates’ that were opened and closed based on time, needs, and circumstances. However, they also faced important challenges: for example, they were ‘not democratic but hierarchical’, they presented several internal social and economic tensions, and they did not offer the same bundle of services that are normally expected nowadays.12 Yet, they were still considered communities of people who defended their autonomy.13 The power of medieval towns was premised on the fact that they ‘represented economic-political-communal unit[s] that allowed their citizens to achieve a new status within feudal society.’14 During the Middle Ages and Renaissance period, some European cities in countries like Italy, France, Spain, Germany or the Netherlands became the core centres of life, business, development, innovation, ideas, arts, crafts, religion, encounters, trade, etc. Cities represented the pulsing centres of society, people gravitated around them to the point of developing a sense of identity and belonging to the city they lived in. Cities actively contributed to the economic and social development of the territory also because they were the seat of professional guilds. The growth of cities continued also during modern times: however, the parallel emergence of the nation-state in the XVII and XVIII centuries drastically shrank the centrality of cities, although some urban centres (like London or Paris) have remained crucial in the historical development of their respective territories and countries. This development has particularly intensified during the industrial revolution: parallel to the increased economic importance of the city, the ‘unprecedented speed of civic growth …carried unprecedented problems.’15 In fact, at this time, ‘the city was a monster with an endless appetite for anything that fertile imaginations could dream of supplying: brick, asphalt, concrete, steel, glass in endless arrangements and compounds.’16 In contemporary times, cities continue to remain central and influential in the advancement of territories and of the state as a whole.

9 Martindale

1958, p. 45.

10 Ibid. 11 Ibid., 12 Frug

p. 11. 1980, p. 1085.

13 Ibid. 14 Ibid.,

p. 1125. 1958, p. 13. 16 Ibid., p. 15. 15 Martindale

328

E. Arban

15.2.2 The Economic Importance of Cities Besides their historical relevance, cities also represent modernity, urbanisation and departure from traditional ways of living, and embody the ‘frontier[s] of human civilization.’17 Urbanisation is profoundly transforming societies and their states,18 with cities increasingly becoming engines of development, innovation, cultural and social interaction and cohesion. Cities are also places for business relations, commerce, trade, in addition to being cultural and educational centres providing basic, essential services to citizens. Cities have both a national (or domestic) and an international dimension and, therefore, importance.19 This chapter is concerned primarily with the national/domestic sphere, but localities are becoming key players also internationally. The study of localities in general—and cities in particular—is fundamental also to understand globalisation, as they have become ‘prime vehicles for the dissemination of global capital, goods, work force, and images.’20 At international level, cities and local governments ‘are obtaining international duties, powers, and rights; enforcing international standards; forming global networks […] and becoming objects of international regulation.’21 For this reason, international law and international relations have extensively studied the role and place of cities, coining the concept of ‘glocal city’ to refer to the type of relationship between the local (city/municipality) and the global (international) levels of government.22 The idea that cities can play a role in the economic development and well-being of people is a longstanding one.23 For example, Jacobs observed that developing economic life depends on the economy of cities since cities are created by the development of economic life itself.24 Martindale signalled that, while characterised 17 Blank

2005–2006, p. 886. 2010, p. 516. 19 Blank 2005–2006, p. 878. 20 Blank 2006, p. 263. 21 Ibid. In this regard, it is worth noting that some metropolitan or large cities have started to being referred to as ‘global’ or ‘superstar’ cities to denote their national and international prominence. Sassen defined a ‘world’ or ‘global’ city as an urban agglomeration where ‘the location of transnational firms’ command functions and related activities play an important role in the global economic order’ (Sassen 2001, p. 5). Furthermore, she contends that ‘the more globalized the economy becomes, the higher the agglomeration of central functions in a relatively few sites, that is, the global cities’ (ibid.). In some economic circles, the expression ‘superstar’ city has been coined. The management consulting firm McKinsey & Co. has defined superstar cities according to certain criteria such as economic size and income, levels of global integration, capacity of innovation, financial importance, levels of digitalization, presence of container ports, or elevated share of national income given the share of population (https://www.mckinsey.com/featured-insights/innovation-and-growth/sup erstars-the-dynamics-of-firms-sectors-and-cities-leading-the-global-economy, accessed 19 May 2020). 22 Riegner 2019, p. 40. 23 Arban 2019, p. 241. 24 Jacobs 1985, p. 132. 18 Blank

15 Constitutional Law, Federalism and the City …

329

by intellectuality, the city ‘not only implies intellect but money.’25 Consequently, ‘money economy and dominance of the intellect are intrinsically connected.’26 Jacobs captured the essence of cities as ‘primary economic organs’27 whose vital function is ‘to serve as primary developers and primary expanders of economic life.’28 She further remarked how ‘cities are unique in their abilities to shape and reshape the economies of other settlements, including those far removed from them geographically.’29 Jacobs also pointed to the close relationship between rural and urban economies, maintaining that ‘agriculture is not even tolerably productive unless it incorporates many goods and services produced in cities or transplanted from cities.’30 In this sense, ‘city economies create new kinds of work for the rural world, and by doing so also invent and reinvent new rural economies.’31 More recently, Schragger has also advanced the idea that cities are ‘the chief economic engines in their regions, states, and nations’ and that, historically speaking, they have a tradition of being productive places and the primary cause of economic development.32 Especially after the fall of trade barriers, the economic influence of cities has significantly increased, to the point that cities have become important trade nodes facilitating the movement of persons, goods and capital.33 However, despite this longstanding tradition of viewing cities as economic engines, most discussions still take the nation-state as the main economic (and, by consequence, the main legal/constitutional) player. In other words, it is the nationstate (and not the city) that has been traditionally considered as the ‘basic unit of economic analysis’34 regardless of the fact that cities ‘are relevant economic concepts in ways that nations are not.’35 In fact, Jacobs observed that, at least since Smith, the one thing that has always been taken for granted and never questioned is ‘the old mercantilist tautology that nations are the salient entities for understanding the structure of economic life.’36 Yet, while nations are powerful ‘political and military entities’ they are not necessarily the ‘basic, salient entities of economic life.’37 However, national economies are in fact ‘a collection of city economies’38 because, within nations, cities ‘account for a disproportionate share of gross domestic product

25 Martindale

1958, p. 33 and p. 37. p. 33. 27 Jacobs 1969, p. 6. 28 Jacobs 1985, p. 193. 29 Ibid., p. 32. 30 Jacobs 1969, p. 7. 31 Ibid., p. 39. 32 Schragger 2016, p. 18. 33 Ibid. 34 Ibid. 35 Ibid. 36 Jacobs 1985, p. 31. 37 Ibid. 38 Schragger 2016, p. 20. 26 Ibid.,

330

E. Arban

and income’39 and, consequently, cities are fundamental in ‘fostering economic innovation’.40 For Jacobs, nations are not ‘discrete economic units’ but include ‘differing city economies’.41 To this end, Jacobs defined cities as the ‘powerhouses’ of economic life.42

15.2.3 The Political and Cultural Importance of Cities In addition to being capable of generating wealth and economic growth, cities are also often competent in promoting good governance.43 In this sense, cities are usually more inclusive, more progressive, they display more liberal political agendas, and often vote differently than other parts of the same country. This can be explained by the fact that, as Martindale argued, ‘man thinks, feels, responds differently in the city than outside it.’44 A useful example in this regard is represented by the phenomenon of sanctuary cities as it has emerged especially in the United States.45 Cities thus have the potential for autonomy or self-government that is directly proportional to their socio-economic importance: the more socio-economically strong, the more they feel the need and desire for independent decision-making. But cities can also be seen as places of solidarity, a foundational value (along with equality) upon which social cohesion might be achieved in the city.46 As I have argued elsewhere, solidarity is a concept that cannot be easily defined, although it is closely associated with positive values such as brotherhood, friendship, mutual help, etc.47 In the specific urban/metropolitan context, solidarity may find expression in different ways, and assume different connotations. It may run among individuals who share the same common spaces (horizontally) but also among institutions of local governance and citizens (vertically). It is thus possible to talk about forms of interpersonal/intergenerational solidarity but also of socio-economic solidarity within the city. Furthermore, cities are highly diverse from an ethno-linguistic and cultural standpoint, as they attract people of different wealth, ethnic origins, language, religion, and cultural backgrounds. In this sense, cities are places where the potentiality and natural vocation of different territories are valorised. Consequently, while

39 Ibid.,

p. 21. p. 19. 41 Jacobs 1985, p. 162. 42 Ibid., p. 106 and p. 109. 43 Blank 2006, p. 264. 44 Martindale 1958, p. 30. 45 Cuison Villazor, among others, has written extensively on sanctuary cities in the US. The reader interested in this subject can resort to the following: Cuison Villazor 2008, p. 133; Cuison Villazor 2010, p. 573. 46 Arban 2019, p. 249. 47 Arban 2017, p. 242. 40 Ibid.,

15 Constitutional Law, Federalism and the City …

331

constitutional drafters shall be mindful of the fact that cities have a unique position to promote economic efficiency, they should also protect minorities and local cultures.48 This is where solidarity comes into play: cities represent ideal places where to create ‘human solidarity and collectivity that is held by difference, plurality and experimentation’.49 The concept of social cohesion mentioned above entails the development of a web of social relations, and helps shaping a feeling of belonging conducive to the emergence of a communal identity,50 in the form of some city-based identity transpiring among the people living in a given urban territory. Like solidarity, identity can also take different forms. At city level, identity may have the potential to transform and influence local and national policies, because of the weight and robust leading role played by cities. Blank postulates that big and multicultural cities might ‘suggest a possibility to imagine a community in a more concrete and real way than the imagination of the national community.’51 This sense of (urban) community may be linked to a form of (urban) identity. Finally, the concept of city identity may overlap with that of citizenship, the latter referring to a bundle of rights, duties and privileges that include political and socioeconomic rights, participation in public life, and identity formation, among other things.52 Blank observed that, parallel to the classic, national citizenship, emerging spheres of citizenship include the global and the local.53 Although the concept itself is still quite obscure, the idea of local or urban citizenship refers to the existence of a ‘local polity with its own principles of membership, procedures of participation, and catalogue of rights and entitlements’.54 Local or urban citizenship, however, seems to refer to ‘a unique type of membership that is based on the presence in a territory more than on any essential traits such as belonging to a nation or to a species’.55 As indicated, the specific content of this type of local or urban citizenship is still unclear and murky; yet, for Blank, it manifests the dynamic tension between the larger national citizenry (with its specific articulation of rights and entitlements) and smaller voluntary territorial associations that articulate their own preferences through their legal powers and institutions. These struggles necessarily impact the identity of the local citizenry, the identity of those who will make this determination, and the substantive meaning of local citizenship.56

48 Blank

2006, p. 278. 2010, p. 554. 50 Scheurer and Haase 2018, p. 337. 51 Blank 2005–2006, p. 937. 52 Blank 2007, p. 415. 53 Ibid. 54 Ibid., p. 422. 55 Ibid., p. 423. 56 Ibid., p. 434. 49 Blank

332

E. Arban

15.2.4 Towards a Definition of Cities as Unique Socio-economic and Political Spaces In bringing together the historic, economic, political and cultural significance of cities—as just illustrated—this chapter puts forward a characterisation of cities as unique socio-economic and political spaces from the perspective of constitutional law. The uniqueness of cities emerges from their powerful economic muscle, their political potential, and their socio-cultural distinctiveness and diversity also through fundamental values and concepts such as solidarity, city identity and urban citizenship, all presenting a local dimension that shapes the nature of cities as legal/constitutional subjects. By re-thinking their constitutional recognition independently from local governments and in line with what will be suggested infra, cities can become strategic places where to experiment new forms of governance better apt to balance their economic and social dimension and reconcile diversity and social cohesion. The argument supporting the constitutional recognition of cities as unique socioeconomic and political spaces should however be taken cautiously for at least two reasons. First, there is no single solution that would perfectly fit all contexts. Because of different local perceptions, this contribution invites countries to identify which cities could be characterised as unique socio-economic and political spaces based on a combination of factors that include not only demographics, but also size, socioeconomic context, political factors. In fact, in small countries with a rather uniform level of economic development and less marked urban/rural divide, the challenges specifically faced by cities may be smaller than those existing in more asymmetric realities, as is the case in developing countries where this urban/rural divide is much deeper both economically and culturally. Consequently, the argument in favour of more city power could paradoxically damage the former while benefitting the latter. Second, and linked to the above, it could be argued that not all cities deserve to be treated asymmetrically, and there is thus no need for them to be entrusted with specific powers. This however does not undermine the broad claim that the changed role of cities should elicit a different constitutional/legal positioning especially, but not exclusively, in the Global South where economic inequalities and socio-economic tensions are particularly problematic.

15.3 Cities and Federalism As briefly noted in Sect. 15.1, most constitutions are silent when it comes to cities, which are thus not regarded as autonomous constitutional subjects. This is true also for federal and decentralised systems, even though their structuring in multiple layers of government would allow an easier accommodation of cities in the distribution

15 Constitutional Law, Federalism and the City …

333

of powers. However, this claim is not absolute: in fact, some federal and quasifederal constitutions do refer—often implicitly—to cities, usually by entrenching local governments (or municipalities) and capital cities. In Sect. 15.3 of this chapter, federalism will thus be used as the analytical lens through which cities could be thought of as a constitutionally entrenched level of government, autonomous from municipalities and local governments. In particular, this section will illustrate how federalism has not been completely insensitive to the importance of cities, and will elucidate on ways in which cities have been showcased in federal constitutions. Federal theory will thus support the argument favouring the constitutional recognition of cities as unique socio-economic and political spaces by proposing ways in which this could be done. The choice of using federal theory as the analytical lens to develop my argument is premised on the fact that federalism is traditionally construed as an ideal mechanism to reconcile unity and diversity through the implementation of a multi-layered system of government that combines ‘self-rule’ and ‘shared-rule’.57 However, the arguments herewith presented are not restricted to federal systems only, but may have a broader relevance for comparative constitutional law more generally.

15.3.1 The City in the Work of Johannes Althusius58 The German theologian and philosopher Johannes Althusius (1557–1638), commonly considered the ‘godfather’ of modern federalism, already conceived of a society built up from below, where cities were one of the several rings of the societal chain along with families, collegia, provinces and the commonwealth. In his major work Politica Methodice Digesta, first published in 1604, Althusius had already espoused a rather inclusive idea of multi-layered society, with cities as key players. As a mixed and public association, Althusius described the city (or civitas) as an urban community composed of ‘those who practice industrial functions and pursuits while living an urban life.’59 He described the city as: a large number of hamlets and villages associated by a special legal order (jus) for the advancement of the citizens, and guarded and fortified against external violence by a common moat, fortress, and wall…60

Althusius further characterised the city as a ‘community of citizens dwelling in the same urban area (urbs), and content with the same communication and government (jus imperii).’61 In terms of city governance, for Althusius each city had to be administered by a ‘prefect’ or ‘superior’ (sometimes also referred to as ‘consul’) assisted 57 Elazar

1987, p. 12. section extensively builds on Arban 2019, p. 235. 59 Althusius 1995, p. 42. 60 Ibid. 61 Ibid. 58 This

334

E. Arban

by ‘counsellors’ and ‘senators’ constituting the ‘senatorial collegium’, whose legitimate decrees had to be observed by citizens.62 The senate was composed of ‘wise and honest select men’ entrusted with the ‘care and administration of the affairs of the city’ and representing the entire city.63 The senatorial collegium controlled a variety of functions, including ‘the power of managing and executing the business of the community and so of knowing and judging all that pertains to the community’.64 For Althusius, there were at least four types of city.65 First, the free city, which was ‘free from the rule of other princes, dukes, and counts’ and which recognised ‘as its immediate superior the supreme magistrate’.66 Second, municipal or provincial cities, which were ‘subject to a territorial lord’ and which recognised ‘a superior other than the supreme magistrate’.67 Third, a mixed city, which recognised ‘partly the emperor and partly a duke or count as its superior’ and which enjoyed ‘imperial and provincial privileges’.68 Finally, a metropolitan city (or metropolis), which was defined as: the mother of other cities that it brings forth as colonies, or because it is pre-eminent among them and is recognized by them as a mother by whom they are ruled and defended as children. The metropolis is therefore a large and populous city. Other cities and towns of the realm follow its example because of its size, population, rank, houses of religion and justice, and temples of piety and law (…) It also cultivates men distinguished in piety, doctrine, and life that others are able to consult in cases of doubt and perplexity…69

Lastly, every city was ‘able to establish statutes concerning those things that pertain to the administration of its own matters, that belong to its trade and profession, and that relate to the private functions of the community …’70 The recognition that Althusius’ Politica dedicates to cities as part of a multilayered society built up from the family as the primordial form of association is certainly compelling from a historical standpoint, although it mirrors the specific society of his particular time. However, its impact on actual (federal) constitutional design was basically inconsequential: in fact, the first federal constitution, the US constitution of 1787, as well as all the other federal constitutions drafted on the archetypal US model, did not contain any reference to cities as autonomous levels of government. Only recently has this trend partially changed, with the entrenchment of municipalities and local governments, as I will illustrate infra.

62 Ibid. 63 Ibid.,

p. 43. p. 50. 65 Ibid., p. 45. 66 Ibid. 67 Ibid. 68 Ibid. 69 Ibid., pp. 45–46. 70 Ibid., p. 49. 64 Ibid.,

15 Constitutional Law, Federalism and the City …

335

15.3.2 Federal Capital Cities and Cities with Special Status71 Notwithstanding the general neglect for cities as independent subjects in federal constitutional theory, some federations give special treatment to their capital cities.72 Examples in this sense include Washington DC in the United States, Canberra ACT in Australia, and Abuja in Nigeria. In these cases, the special treatment these cities receive is related to their status and role as federal capitals, and not so much to their size or economic power. Very often, these cities do not have a history of their own, but have been created ad hoc to serve the specific purpose of being capital, and perhaps avoid rivalries between other equally powerful cities: this is the case of Canberra, which was created ex novo as the capital city of Australia to avoid a potential rivalry between Sydney and Melbourne. In other instances, the capital city of a federal state does coincide with its most important urban area, as happens with Buenos Aires, Mexico City or Addis Ababa: here, the special constitutional status is reserved to the city that is not only the capital, but also the most populated and economically advanced. In this regard, Buenos Aires and Mexico City are relevant exceptions. In fact, the constitution of Argentina entrenches Buenos Aires as one of the provinces that compose the federation, with Article 12 mandating that the city: shall have an autonomous system of government, with its own legislative and jurisdictional powers, and a head of government who shall be elected directly by the people of the City.73

Mexico City represents an even more interesting example. After the reform of the federal constitution in 2016, Article 122 now mandates that Mexico City is a federated entity (along with all the other federated entities listed in Article 43 Const.) enjoying internal autonomy and autonomy in everything concerns its political and administrative organisation. It further provides for constituent powers for Mexico City, in that it explicitly spells out the exact content of the political constitution of the city.74 Besides federal capitals, other examples of cities in federal systems having a special legal status include the German city-Länder (where the three Länder of Berlin, Hamburg and Bremen are actually city-states due mainly to historical reasons) or the city of Brussels in Belgium, which enjoys a unique asymmetrical status as a region reflective of the multinational and multilingual nature of the state. More recently, Italy has also constitutionally entrenched metropolitan cities as one of the tiers that compose its unique asymmetrical regional system (see infra). Likewise, in the United Kingdom, the city of London enjoys special status, while a special, federacy-like relationship is in place between Hong Kong and Macau and 71 This

section extensively builds on Arban 2019, p. 237.

72 A detailed account of the issue is beyond the scope of this chapter. Readers interested in studying

this theme more thoroughly can look at Slack and Chattopadhyay 2009 on finance and governance of capital cities in federal systems. 73 For a discussion on the autonomous city of Buenos Aires, see Hernández 2020, p 50. 74 https://www.diputados.gob.mx/LeyesBiblio/pdf/1_090819.pdf (accessed on 21 May 2020).

336

E. Arban

mainland China. More informally, in the United States, some cities have recently started to carve out for themselves autonomous powers in specific areas such as immigration, often in contrast with federal policies (a phenomenon broadly referred to as sanctuary cities).75

15.3.3 Constitutional Entrenchment of Local Governments The most recent wave of constitutional drafting in federal and decentralised systems has increasingly turned its attention to the local/municipal sphere, often elevating this tier of government to constitutionally protected status. This has often been done in association to (or as an expression of) the principle of subsidiarity. Examples in this sense include—but are not limited to—Brazil, Germany, India, Italy, South Africa, Spain and Switzerland. In Brazil, Article 18 Const. mandates that the federation includes ‘the Union, states, federal district, and counties’ and that they are ‘all autonomous’. Article 30 further provides a list of powers assigned to the counties, which include making laws ‘on subjects of local interest’, the organisation and performance of ‘essential public services of local interest’ such as collective transportation, the maintenance of ‘programs of pre-school and elementary education’ and the provision of ‘health services to the population’ in cooperation with federal and state governments when it comes to technical and financial issues.76 As for Germany, Article 28(2) of the Basic Law protects the autonomy of local governments by stating the following: Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility […] Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed.

However, the exact scope of this autonomy is not defined in the Basic Law but in ordinary legislation. Furthermore, the constitutional division of legislative powers only occur between federal and Länder governments. Finally, local governments largely depend on financial transfers from the federal and Länder governments.77 Municipalities feature prominently also in the Indian constitution. However, in terms of division of powers, municipalities only enjoy devolved functions. In fact, as detailed in Article 243W Const., states may by law endow municipalities with ‘such 75 For more information on sanctuary cities, see Cuison Villazor 2010, p. 573; Cuison Villazor 2008,

p. 133. 76 A discussion of local governments in Brazil can be found in de Queiroz Ribeiro and Braule Pinto

2009, p. 76. 77 For a detailed analysis of local governments, their constitutional status and challenges in Germany, see Burgi 2009, p. 137.

15 Constitutional Law, Federalism and the City …

337

powers and authority as may be necessary to enable them to function as institutions of self-government’. Also, when it comes to fiscal and financial powers, municipal autonomy depends on state legislation as spelled out in Article 243X.78 In Italy, Article 114 Const. mandates that: The Republic is composed of Municipalities, Provinces, Metropolitan Cities, Regions and the State. Municipalities, provinces, metropolitan cities and regions are autonomous entities having their own statutes, powers and functions in accordance with the principles laid down in the Constitution.

The Italian constitution, therefore, not only entrenches municipalities and provinces, but also metropolitan cities. Furthermore, Article 119 endows these local governments with autonomy of revenue and expenditures and the power to set and levy taxes and collect revenues. However, they do not enjoy any extensive original power because the division of legislative powers enshrined in Article 117 only refers to the central government and the regions.79 Article 137 of the Spanish constitution partially mirrors its Italian counterpart in providing that: The State is organized territorially into municipalities, provinces and the Self-governing Communities that may be constituted. All these bodies shall enjoy self-government for the management of their respective interests.

However, although this provision embeds a right to self-government for municipalities and provinces, the scope of such autonomy is not expressed in the constitutional text.80 Likewise, this constitutional recognition does not imply the attribution of original legislative powers to local governments, which are thus defined in ordinary legislation. Switzerland also represents an interesting case-study. First, Article 5A Const. entrenches the principle of subsidiarity ‘in the allocation and performance of state tasks’. Next, Title III Const. is devoted to the confederation (or federal government), cantons and communes (this is how municipalities are called). In this context, Article 50 Const. guarantees the autonomy of communes but also requires the federal government to ‘take account in its activities of the possible consequences for the communes’ and ‘of the cities and urban areas as well as the mountain regions’. However, similarly to most other federations, also in Switzerland the federal and cantonal tiers of government remain the most important players.81 To complete this overview, the South African example is perhaps quite unique, as local governments enjoy extensive original powers, with an entire chapter in the constitution (chapter 7, Articles 151-164) devoted to the status, powers and duties of local governments. Article 40 Const. first indicates that ‘government is constituted as 78 For

a more thorough discussion of local governments in India, see ex multis Mathew and Hooja 2009, p. 167; Idiculla 2020, p. 29. 79 For a discussion of metropolitan cities in Italy, see Longo and Mobilio 2016, p. 509. 80 Velasco Caballero 2009, p. 307. 81 For a detailed discussion of local governments in Switzerland, see ex multis Ladner 2009, p. 330.

338

E. Arban

national, provincial and local spheres of government which are distinctive, interdependent and interrelated’. Article 151(3) Const. provides that a municipality ‘has the right to govern, on its own initiative, the local government affairs of its community, subject to national and provincial legislation, as provided for in the Constitution’ while Article 156 Const. lists powers and functions of municipalities. By virtue of Article 163 Const., local governments may designate representatives to participate in the National Council of Provinces (e.g., the equivalent of a ‘federal’ upper chamber) following the procedures established by an Act of Parliament.82 The main problem with the model of local governance just illustrated is that the legal tools available to municipalities in general—and to cities in particular—do not always serve the ‘real dimension of contemporary urban entities’.83 Specifically, the fiscal and financial powers of cities continue to reduce while their challenges have increased and the tasks they are called to perform have multiplicated.84 Furthermore, many states or national constitutions provide for specific constraints (e.g. balance budget requirements, use of public money only for public purposes, limitations on the acquisition of debts, etc.),85 and this limits the way in which cities as local governments can spend and raise money.86 Such constraints reduce the ability of localities to respond to changes in economic circumstances,87 thus forcing them to either find indirect ways to fund their services or to depend on transfers coming from the centre.88 Consequently, traditional local institutions such as municipalities might be ill-adapted to the real size of urban issues.89

15.4 A Normative Agenda for Cities in Constitutional Law In understanding cities as unique socio-economic and political spaces from the perspective of constitutional law, this chapter proposes the constitutional recognition of cities as opposed to local governments. In this way, cities can become strategic places where to experiment new modes of governance by vesting them with more autonomy and powers fit to the role and challenges they are called to perform. The experience of federalism as naturally articulated in multiple tiers of government, historically sensitive to the importance of cities, helps painting the ideal canvass where to experiment such new forms of governance.90 82 For

a discussion on local governments in South Africa see, ex multis, De Visser 2009, p. 268. 2013, p. 304. 84 Scheurer and Haase 2018, p. 340. 85 Schragger 2016, p. 220. In his work, the author refers to the US, but similar considerations can be made for many other jurisdictions 86 Schragger 2016, p. 221. 87 Ibid. 88 Ibid. 89 Auby 2013, p. 304. 90 The normative agenda presented here builds on Arban 2019, p. 245. 83 Auby

15 Constitutional Law, Federalism and the City …

339

In discussing US cities, Jacobs argued that: [b]ig-city government is today nothing more that little-city government which has been stretched and adapted in quite conservative fashion to handle bigger jobs. This has had strange results, and ultimately destructive results, because big cities pose operational problems that are innately different from those posed by little cities.91

Jacobs’ argument, however, could be extended beyond the US reality, as little has been done in constitutional/legal debates to adapt the modes of governance of big cities to the changed socio-economic reality. To this end, this chapter uses federalism as the theoretical framework to present a normative agenda.

15.4.1 The Principle of Subsidiarity and the Constitutional Entrenchment of Cities As indicated supra, most constitutions—federal and non-federal—are silent when it comes to cities, which are at the most embedded only as local governments or municipalities. Accordingly, the first aspect to consider is the constitutional entrenchment of cities as autonomous constitutional subjects, in light of their being unique socio-economic and political spaces deserving their own powers and autonomy. Similarly to local governments or municipalities more in general, the constitutional recognition of cities would be premised on the principle of subsidiarity which postulates—in its most classic understanding—that legislative and/or administrative action shall be taken as close as possible to citizens, with the upper levels of government coming into play only in a subsidiary way. A granular analysis of the subsidiarity principle is well beyond the scope of this chapter.92 Here, it suffices to say that subsidiarity is normally invoked as a principle fostering democracy, active participation of citizens, economic efficiency, accountability, development, etc. Subsidiarity also allows for the normative mediation between communities and governments.93 There are at least two features that allow to differentiate a city from a federated subentity such as a state or a province in a multilevel system of government: geographical homogeneity and proximity. As for the former, the territory of a city—however large—is usually more geographically homogeneous than the territory of a federated sub-entity, which often presents different climates, specific territorial features, etc. As for proximity, in a city people live closer than in the territory of a federated sub-entity, where highly urbanised areas often coexist with sparsely populated territories. A constitutional entrenchment of cities, however, would immediately generate at least two sets of challenges. First, embedding cities in a constitution might be very difficult—if not impossible—to pursue especially in those systems characterised 91 Jacobs

1964, p. 423. an account of subsidiarity as a constitutional principle, see Barber 2018, p. 187. 93 Blank 2006, p. 271. 92 For

340

E. Arban

by a rigid constitution that makes constitutional amendments highly improbable (for example, the United States, Canada, Australia). In such scenario, constitutional rigidity might represent an almost insurmountable obstacle. Second, the entrenchment of an additional level of government might not be necessarily welcomed by citizens, who might see it as a redundant multiplication of bureaucracy with the consequent risk of administrative and legislative costs that this would entail, lack of coordination and disharmony. Additional negative connotations of decentralisation include inequality, negative externalities, collective action problems, or increased fragmentation,94 deterioration of public goods,95 but also difficulties with cooperation, social fragmentation and urban sprawl.96 Furthermore, parochial feelings could represent other barriers towards the creation of a constitutional space for cities. In any event, constitutional entrenchment of cities alone is not enough to serve the purpose of carving out a constitutional role for cities if not coupled with other tools, as I am going to explain below.

15.4.2 The Constitutional Entrenchment of Legislative Powers for Cities The next aspect that needs to be addressed is the provision of constitutionally protected legislative powers for the city: a clear formulation of autonomous legislative powers in key areas (immigration, environment, criminal law, personal/fundamental rights, socio-economic rights, fiscal and financial powers) might help carving an autonomous legal space for the urban area. In particular, in line with a definition of cities as unique socio-economic and political spaces—whereby larger cities are capable of fostering not only good governance but also ‘generate wealth and economic growth’—cities need to be ‘financially viable and self-reliant’.97 Actual financial autonomy is one of the most critical elements that are currently missing in city governance, and this limits their powers and efficiency. In defending the constitutional entrenchment of autonomous legislative powers for cities, Frug suggests that this transfer of powers shall be ‘genuine’, meaning that it needs to be real and not vague or ambitious,98 so as to encourage a clear formulation of competences and mechanisms of coordination between the different tiers of government. Similarly to the arguments made in defence of the constitutional entrenchment of cities as illustrated in the previous paragraphs, delegation of powers to the bottom has been both praised and criticised. Blank contends that many theories advocating delegation of authority from central to local governments emphasise increased economic 94 Blank

2005–2006, p. 934. 2006, p. 271. 96 Blank 2005–2006, p. 918. 97 Blank 2006, p. 264. 98 Frug 1980, p. 1070. 95 Blank

15 Constitutional Law, Federalism and the City …

341

advantages and economic efficiency: in this sense, subsidiarity is understood as an exemplification of ‘libertarian ideals that marry individual freedom with economic efficiency by promoting liberty, experimentation, and healthy competition’.99 To this end, for Blank the economic efficiency of cities would be linked to the fact that they would have significant discretion in deciding local taxation and provision of public services.100 Following the Tieboutian101 model, citizens would be able to choose where to live based on their preferences, and localities could compete among themselves in creating a variety of services available to consumers, thus encouraging economic growth.102

15.4.3 Shared-Rule and Representation at the Centre According to traditional federal theory, the idea of shared-rule relates to the possibility of federated entities to have their interests represented at the central level.103 This representation may take different forms, the most classic being an Upper chamber or Senate acting as a forum where subunits can advance their claims and defend their interests at national level while participating in (federal) legislation. In the alternative, more informal mechanisms of representation at the centre could be explored, such as intergovernmental relations and/or systems of conferences. In any event, representation at the centre, through formal or informal means, would allow the creation of a direct link between cities and central governments: such direct connection is usually missing in the current local government framework, as municipalities almost never relate directly with the centre, but only indirectly through the mediation of state/provincial/cantonal/Länder governments. The eventual constitutional entrenchment of cities as proposed in this chapter may thus prompt a discussion on how to best represent their interests.

15.4.4 Direct Election of City Representatives As Blank posits, for residents to learn that their participation matters, localities need to be meaningfully represented in decision-making: in fact, merely granting authority, duties and rights to cities will not advance democracy without ‘supplementary measures’ such as direct elections of representatives.104 Blank further contends 99 Blank

2006, p. 271.

100 Ibid. 101 Tiebout

1956, p. 416. 2006, p. 270. 103 Ex multis see Palermo and Kössler 2017, pp. 164–165. For a discussion of representation at the centre in the ambit of substate nationalism, see ex multis Tierney 2006, p. 188. 104 Blank 2006, pp. 276–277. 102 Blank

342

E. Arban

that ‘empowered local governments appointed by central state organs can hardly be seen as an improvement over direct central control.’105 This means that, to enhance popular participation and democracy, some minimal conditions such as elected officials (instead of appointed bureaucrats), full participation of residents in decisionmaking processes (rather than sporadic voting), and decisions of local government influenced by local knowledge and local values will be necessary.106

15.4.5 Cities and External Relations Although activities related to the discussion, conclusion and implementation of international treaties (and foreign relations more broadly construed) traditionally fall within the sphere of competences of central governments as an expression of their sovereign powers, in some federal and regional systems subunits are increasingly involved in international affairs. This happens mainly in the EU context, where subunits may be consulted if an international treaty affects one or more of their subject matters of competence, or are called to implement international treaties. Reflective of the international dimension and role that especially larger cities have acquired in certain areas, it might be worth exploring their place and role also in external relations. As Blank posits, in order to take democracy seriously, ‘localities must become equal partners in the formation and adjudication of international norms.’107 Consequently, the tendency to see cities or localities as mere ‘means of governance’ rather than ‘democratic governments in which actual politics takes place’ shall end.108 In any event, the argument is not that cities should replace the nation-state at international level, but simply that they should acquire a more prominent place and role within the international community.

15.5 Conclusion This chapter tried to address the broad question of whether cities should be constitutionally recognised as autonomous legal entities. In answering positively, the chapter put forward a definition of cities as unique socio-economic and political spaces from the perspective of law, premised on the historical, economic, political and cultural importance of cities. This allows to experiment new modes of governance for the urban area in constitutional law as opposed to local governments. It then looked at federalism to observe how federal systems are naturally articulated in different levels of government and therefore, from a theoretical and practical perspective, already 105 Ibid.,

p. 276. p. 274. 107 Ibid., p. 275. 108 Ibid. 106 Ibid.,

15 Constitutional Law, Federalism and the City …

343

have institutional schemes in place to allow representation and participation of cities. These schemes could be used as the basis for a preliminary (and therefore incomplete) normative agenda for the constitutional recognition of cities. The originality of the argument presented here is two-fold. First, the characterisation of cities as unique socio-economic and political spaces, although this is a definition that needs to be nuanced and adapted in a way that takes into account the specific context. Second, the argument in favour of a stronger positioning of cities in constitutional law as opposed to local governments within a theoretical framework standing at the intersection of constitutional law and federalism theory. In defending the constitutional recognition of the city as a unique socio-economic and political space, the argument proposed here does not intend to exhaust all the reasons why cities might find an autonomous position in constitutional law. The more modest purpose of this chapter was to spur a conversation on the opportunity to consolidate the constitutional recognition of cities as autonomous legal subjects. While other hypotheses can certainly be suggested to this end, the chapter should be seen as an invitation to engage in a more substantive dialogue conducive to building a voluminous literature in the field supporting a more prominent presence of cities as autonomous constitutional subjects.

References Althusius J (1995) Politica (edited and translated by Frederick S. Carney). Liberty Fund, Carmel Available at https://oll.libertyfund.org/title/althusius-politica Arban E (2017) Exploring the Principle of (Federal) Solidarity. Review of Constitutional Studies 22:241–260 Arban E (2019) Metropolitan Cities, Federalism and Socio-economic Challenges. Rivista di Diritti Comparati Special 1:226–251 Auby J-B (2013) Droit de la Ville, An Introduction. Italian Journal of Public Law 5:302–306 Barber N (2018) The Principles of Constitutionalism. Oxford University Press, Oxford Blank Y (2005-2006) The City and the World. Columbia Journal of Transnational Law 44:875–939 Blank Y (2006) Localism in the New Global Legal Order. Harvard International Law Journal 47:263–281 Blank Y (2007) Spheres of Citizenship. Theoretical Inquiries in Law 8:411–452 Blank Y (2010) Federalism, Subsidiarity, and the Role of Local Governments in an Age of Global Multilevel Governance. Fordham Urban Law Journal 37:509–558 Burgi M (2009) Federal Republic of Germany. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 137–165 Cuison Villazor R (2008) What is a Sanctuary? Southern Methodist University Law Review 61:133– 156 Cuison Villazor R (2010) Sanctuary Cities and Local Citizenship. Fordham Urban Law Journal 37:573–598 de Queiroz Ribeiro L, Braule Pinto S (2009) Brazil. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 76–106

344

E. Arban

De Visser J (2009) Republic of South Africa. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 268–297 Elazar D (1987) Exploring Federalism. The University of Alabama Press, Tuscaloosa, AL Frug G (1980) The City as a Legal Concept. Harvard Law Review 93:1057–1154 Hernández A (2020) The Municipal Regime, the Autonomous City of Buenos Aires and the Metropolitan Areas in the Argentine Federation. Verfassung und Recht in Übersee VRÜ/WCL 53:50–71 Hirschl R (2020) City, State: Comparative Constitutionalism and the Megacity. Oxford University Press, Oxford Hirschl R, Shachar A (2019) Spatial statism. International Journal of Constitutional Law 17:387–438 Idiculla M (2020) Unpacking Local Self-Government: The Uncertain Power of Cities in the Indian Constitution. Verfassung und Recht in Übersee VRÜ/WCL 53:29–49 Jacobs J (1964) The Death and Life of Great American Cities. The Failure of Town Planning. Penguin Books, Harmondsworth Jacobs J (1969) The Economy of Cities. Random House, New York Jacobs J (1985) Cities and the Wealth of Nations. Viking, London Ladner A (2009) Swiss Confederation. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 330–362 Longo E, Mobilio G (2016) Territorial Government Reforms at the Time of Financial Crisis: The Dawn of Metropolitan Cities in Italy. Regional and Federal Studies 26:509–530 Martindale D (1958) Prefatory Remarks: The Theory of the City. In: Weber M (author) The City. Free Press, Glencoe, pp 1–64 Mathew G, Hooja R (2009) Republic of India. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 167–199 Meehan E, Chiarelli R, Major M-F (2007) The Constitutional Legal Status of Municipalities 18492004: Success is a Journey, but also a Destination. National Journal of Constitutional Law 22:1–60 Palermo F, Kössler K (2017) Comparative Federalism. Constitutional Arrangements and Case Law. Hart Publishing, Oxford/Portland Riegner M (2019) Towards a Comparative Law of Glocal Governance. In: Aust H, du Plessis A (eds) The Globalisation of Urban Governance. Routledge, New York, pp 38–64 Sassen S (2001) The Global City. New York, London, Tokyo. Princeton University Press, Princeton/Oxford Scheurer L, Haase A (2018) Diversity and social cohesion in European cities: Making sense of today’s European Union-urban nexus within cohesion policy. European Urban and Regional Studies 25:337–342 Schragger R (2016) City Power. Oxford University Press, Oxford Slack E, Chattopadhyay R (eds) (2009) Finance and Governance of Capital Cities in Federal Systems. McGill-Queen’s University Press, Montreal/Kingston Tiebout C (1956) A Pure Theory of Local Expenditures. Journal of Political Economy 64:416–424 Tierney S (2006) Constitutional Law and National Pluralism. Oxford University Press, Oxford Velasco Caballero F (2009) Kingdom of Spain. In: Kinkaid J, Steytler N (eds) Local Government and Metropolitan Regions in Federal Countries. McGill-Queen’s University Press, Montreal/Kingston, pp 299–328

Erika Arban is a Postdoctoral Fellow in the Laureate Program in Comparative Constitutional Law at Melbourne Law School, and Lecturer in Comparative Federalism at the University of Antwerp. Her research interests include comparative constitutional law (in particular, comparative federalism and multilevel governance) and legal research methodology (with specific focus on the comparative method). Erika is co-editor of the Blog of the International Association of

15 Constitutional Law, Federalism and the City …

345

Constitutional Law (IACL) and she is the co-convenor of the new IACL Research Group on New Frontiers of Federalism. Erika received her PhD at the University of Ottawa, where her doctoral thesis Italian Regionalism and the Federal Challenge was awarded the Governor General Gold Medal for the best thesis in the Humanities. Erika is currently working on various research projects exploring, among other things, the role of cities in comparative constitutional law and the intersection of constitutional law, federalism and socio-economic inequalities.