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On the power of the federal government to develop and enforce criminal laws: Part 2

In the previous post, I argued that legal form cannot and should not be used to allocate governmental powers and responsibilities between the federal government on the one hand and constituent units of the federation, i.e., regional states, on the other. On such basis I argued that criminal law as a form of law cannot be said to belong to the federal or regional level of government. Hence, I have cautioned against the literal and independent reading of article 55(5) of the constitution which says that the House of Peoples’ Representatives shall enact a criminal code and regional states shall enact criminal law on matters not covered by the federal criminal legislation.

I submitted that this constitutional provision should be read in light of Article 51 which deals with the powers and responsibilities of the federal government. Accordingly the federal government can pass any kind of law, including criminal law, on matters which fall under the jurisdiction of the federal government. Such matters are provided in Article 51. It is, therefore, the duty of the federal government to demonstrate that the criminal laws it has passed or plans to pass are relating to matters falling under one or more of the twenty-one items in Article 51 and other parts of the constitution. Regional states, on the other hand, can pass criminal legislation on matters which are outside the federal jurisdiction.

I finished the last post by posing a question. Regarding forestry offences, for example, can regional states provide for a higher penalty than what is provided in the federal law for the same offence? I will add another question here and address the two together: can regional states expand or contract the scope of federal offences relating to forestry?

As I have said, if we read Article 55 of the constitution literally and independent of Article 51, we ask a simple question: is the offence provided in the federal criminal legislation? If the answer is yes, then it follows that a given regional state can neither provide for a higher penalty nor expand and contract the definition of the relevant forestry offence. But I have suggested against this rather simplistic reading of the relevant constitutional provisions.

In my view, in order to answer the above question, we must first determine the respective roles of the federal government regarding management of forest resources? Does the federal government have exclusive power over the management of our forest resources? If the answer to this question were yes, then it follows that the federal government would have the exclusive power to develop and enforce forest laws, including criminal laws relating to forestry. But the constitutional reality is different.

According to the constitution, the federal government and regional states have shared powers and functions over natural resources. The federal government is entrusted with the power to develop laws for the utilization of land and other natural resources; and regional states are mandated to administer such resources on the basis of the federal law. An exception here is regarding water, where it is provided that the federal government shall administer international rivers or water bodies crossing or connecting two or more regional states.

A question might be raised whether regional states can pass legislation on ‘land and other natural resources’? Can passing legislation be considered as administration of land and other natural resources? My view is as follows: yes regional states can pass legislation on land and natural resources provided that these laws are consistent with the federal legislation on the matter and yes enactment of rules can be considered an act of administration, in fact exemplary of good administration.

One may wonder here as to why the federal government is expected to enact laws for the utilization of natural resources if these natural resources are to be administered by regional states which are also empowered to pass legislation, albeit of a lower legal force. What determines if a given power should be given to the federal government or constituent units of a given federation?

Not all federal states are the same and they are the outcome of specific political, cultural, economic and social context and hence are bound to be different. However, one could identify certain managerial and economic reasons behind allocation of responsibilities in federal states. First, by default, both economists and natural resource manager generally agree that, the management of natural resources should be left to local government. If it is a choice between the federal government and regional states, then the default choice should be regional states. That means it is better both from managerial and economic perspectives that the management of natural resources be left to regional states.  

It is also generally agreed that under certain circumstances, the national government should be entrusted with a given power. There are about four exceptional circumstances wherein the federal government ought to assume a given power and responsibility. Let us examine these circumstances.

The first relates to national or regional public goods. ‘Public good’ is an economic concept. Public goods have two properties: non-rivalry and non-excludability. Non-rivalry refers to the fact that consumption of such goods by one person does not diminish the amount that remains for the other. Non-excludability refers to the fact that it is economically impossible to exclude non-paying persons from consuming such goods. These two properties give rise to the problem of free-ridership, also resulting in the fact that such goods are under-supplied in a market-based system, necessitating the intervention of government in one way or another. Public goods have different scope, ranging from the local to the global. Responsibility over local public goods can be left to local governments and national/federal governments should be entrusted with the responsibility over national public goods. The point is this: despite the fact that by default it is local governments that should be entrusted with the management of natural resources, the federal government should take over if it involves development, utilization and management of national public goods. For example, development and utilization of national parks can be regarded as matters of national public goods.

The second circumstances wherein federal/national government is legitimized in assuming power over the management of natural resources relates to interstate spillovers. This is where a given environmental problem crosses or affects more than one regional state.  Professor Adler writes in this connection: ‘Where activity in state A causes pollution in state B, there is an almost unimpeachable case for federal involvement, even if only to adjudicate the revenant dispute. While one may reasonably expect State A to adopt measures to control the environmental costs of economic activity within State A, policymakers have little reason to be concerned with the harms imposed on other jurisdictions. In such a context state A is unlikely to adopt sufficient controls because it would bear the primary costs of any such regulatory measures, whereas the primary beneficiaries of such controls would be in State B”. I think this ground explains the constitutional rule which empowers the federal government to manage international rivers and water bodies which cross or connect two or more regional state.

The third circumstance which justifies the role of the federal government in environmental and natural resource issues is that of ‘economy of scale’. The idea of economy of scale is that you get cost-savings when goods and services are produced at a larger scale. On this basis, it is argued, for example, that instead of regional states carrying out separate scientific studies relating to environmental and natural resource issues, it will be much better if such studies are carried out at the federal level. Likewise, Professor Adler argues that product standards ought to be developed by the federal government: “Specifically, a single set of regulations may make more sense for a single, integrated national economy. This argument is strongest in the case of product regulation. Where a given product is bought and sold in national markets, and will travel throughout interstate commerce, it is less costly to design and product the product so as to conform with a single national standard. While it is not clear why siting standards for a pulp mill in Vermont should match those for one in Oregon or Mississippi, if commercial goods are going to be produced on a national scale for national markets, producers may be best served if there is a single product standard that applies nationwide. Facility siting and construction will always be subject to local requirements, that is not necessarily the case with consumer products”.

The fourth circumstance which justifies the role of the federal government in such cases is the problem of ‘race to the bottom’. The idea is that if states are left to manage natural resources and the environment on their own, they might engage in some sort of race to the bottom with a view to attracting private investment and hence set sub-optimal environmental standards. In such cases, the federal government may set minimum legal framework and regional states will be expected to manage such resources on the basis of this legal framework. There is no problem here if regional states enact legal rules which are more stringent.

Coming back to the constitutional issue, it is submitted here that the federal government is expected to pass a framework law on the basis of which regional states will administer natural resources including forestry. What is the purpose and nature of the federal law in such cases? What is ‘on the basis of the federal law’ mean?

If the relevant constitutional rule is read in light of the above economic and managerial considerations on allocation of state responsibilities, one can submit that the federal law on the utilization of land and other natural resources should have the following elements. First, it should set minimum standards from which states can go higher but not lower. That means, states can pass more stringent rules and standards but they cannot go for lenient rules. Second, it should empower the federal government to act when economy of scale demands so; for example, setting relevant product standards and regional states have no other option but to apply such product standards. Third, it should authorize the federal government to regulate natural resources which provide public goods and services to more than one region such as national parks and inter-state rivers and water bodies. Fourth, it should allow the federal government to intervene when activities in one state pose harm in another state or to prevent these from happening. This is about the nature and function of federal law relating to natural resources including forestry. It might be pointed out that the federal government might use criminal sanction in enforcing such rules. That means, the federal government will be entrusted with the enactment of criminal law on these issues.

On the basis of the federal law, regional states are constitutionally empowered to administer natural resources. As I have submitted at the beginning, the term administering includes development and enforcement of laws. In fact good administration is one which is carried out on the basis of rules formulated in advance. The question: when can we say that an act of administration by a regional state is not on the basis of the federal law? Here is a partial answer. First, if a given act of administration sets product standards that are different from those provided in the federal legislation. Second, if a given act of administration sets standards which are lower than the minimum standards set by the federal government. Third, if a given act of administration is contrary to federal rules which aim to prevent inter-state spillovers. Fourth, if a given act of administration is contrary to federal rules which aim to develop and protect national public goods. So long as it is within such limits, my argument is that regional states can pass forest laws and such laws could also contain criminal rules.

Now let us examine the specific questions posed at the beginning. Assume that the federal forest law criminalizes cutting of four endangered species of trees and provides a maximum penalty of 10 years. Now a given regional state passed a law which provides a maximum penalty of 15 years for the same offence. The question is whether it is constitutionally allowed. My argument is yes. This rule of the federal government can only be regarded as a minimum framework and states should be allowed to pass stringent rules. Increased punishment can be regarded as a more stringent rule. The same is true when a regional state expands the scope of the rule without increasing the punishment, for example criminalizing cutting of a fifth species. But it cannot be defended when a regional state contracts the scope of the rule, for example decriminalizing cutting of a certain type of tree which was criminalized by the federal law or providing for a lower penalty. My argument is partially based on the idea that a federal law which prohibits cutting of certain type of trees is not a product standard; rather it is a minimum standard.

My argument so far has been based on a constitutional rule and insights from economics and management of natural resources and environment in a federal state structure.

One can also raise a related question that can be examined from criminal law and economics of crime perspectives: when is it proper to set different types of penalties for an essentially similar act of cutting trees, depending only on the regional state where the act has taken place? Is it also consistent with the constitutional rule of equality before the law? What do you think?


Jonathan H Adler, "Jurisdictional Mismatch in Environmental Federalism

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Sunday, 16 June 2024