Category Archives: General constitutional issues

General constitutional issues

The difference between the number and the ‘effective’ number of presidential candidates

Last weekend, Ireland held the first meeting of its Constitutional Convention. One of the topics for debate was whether the president’s term should be reduced to 5 years. However, an issue that generated much more discussion and passion was whether or not citizens should have a role in nominating presidential candidates. In the end, the members of the Convention voted overwhelming (94%-6%) to open up the nomination procedure to citizens. In that context, I thought that I would provide just a little more information about how nomination processes operate comparatively.

Currently, the Irish Constitution provides three ways of nominating presidential candidates: nomination by at least 20 members of the two houses of the legislature (there are 226 at the moment); by 4 elected councils (there are 34, I think); plus incumbent presidents may re-nominate themselves. This has meant that until recently political parties have dominated the nomination process. Since 1937, there have been 7 contested elections and a total of only 24 candidates. That said, in 1997 there were 5 candidates and in 2011 there were 7 candidates. So, there is perhaps some evidence that parties have less of a hold now than previously.

What happens elsewhere? In a recent article in Irish Political Studies, I provided some information about how 29 semi-presidential countries choose their presidential candidates. The take-home point is that probably only Mongolia and Turkey have more restrictive procedures than Ireland and most other countries have some sort of citizen nomination process.

However, two points need to be made.

Firstly, the rules for citizen nomination procedures vary greatly. Some countries simply require a number of signatures from registered electors. Even so, the number is very different from one country to the next. So, Taiwan and Montenegro stipulate 1.5% of the total electorate. By contrast, Poland requires 100,000 signatures. Given there were nearly 31 million registered voters in Poland in 2010, this is a much smaller fraction. In some countries, there is also a geographical requirement i.e. a certain number of signatures from a particular number of provinces or counties.

What all of this means is that even when the nomination system is opened up to citizens, the openness of the system will still vary as a function of the particular rules that are chosen. The up-side of this point is that it does not necessarily mean hundreds or dozens of candidates will inevitably stand. The down-side is that the system is not necessarily much more open. Apart from the cost of a campaign, which will exclude most people, the rules may still serve to restrict the number of candidates.

Secondly, even if the rules are changed in a way that increases the number of candidates, there is a big difference between the number of candidates and the ‘effective’ number of candidates. To put it another way, there may be a larger number of candidates, but how many of them are ‘serious’?

What are the figures? Leaving aside Mali and Peru, the highest figure was 24 candidates at the 2004 presidential election in Ukraine, then 21 in Bulgaria in 1992. Other countries recorded 16, 17, and 18 candidates in some cases. However, the average effective number of candidates was much smaller. For example, whereas Ukraine has had an average of nearly 14 candidates across all its presidential elections, it has had an average of fewer than 4 effective candidates. In fact, France has had the highest average effective number of candidates at just under 5. For most countries the average effective number of candidates is between about 2.5 and 3.5 and the figures are remarkably even across all countries, regardless of how restrictive the procedures are for citizen nominations.

In other words, even if opening up the nomination process to citizens may increase the number of candidates, it does not necessarily make the election more competitive. There may be more candidates from small parties and more candidates from non-partisan backgrounds, but the party candidates are still almost certain to win. This is a function of party identification, previous notoriety, campaign funding resources, and so on.

Overall, the cross-national evidence suggests that opening up the nomination process to citizens is unlikely to change the type of candidate who is actually elected to the presidency. Parties will still dominate. However, opening up the nomination process to citizens may simply be something that people want as a matter of principle.

Lithuania – President rejects ministerial nominations. When have other presidents done the same?

The formation of the new government in Lithuania has been very difficult. The difficulty has arisen not so much from the negotiations between the parties in the coalition, but from the attitude of the president towards the government. The president’s actions have raised a more general issue.

The legislative election in Lithuania was held at the end of October. A three-party agreement on a new government was reached very quickly and a fourth party was soon added. However, from very early on the composition of the prospective government was contested. President Dalia Grybauskaitė refused to accept the nomination of certain ministers from the Labour Party. More specifically, at first she seemed to imply that she would refuse the nomination of any minister from the party. However, the president has now approved the government and, as reports, it does include Labour Party ministers. However, the government is incomplete. President Grybauskaitė has indeed refused the nomination of two Labour Party ministers and their replacements have yet to be found. In addition, the report states that the initial nominee for the Minister of Culture was rejected and another name was found.

This got me thinking. During periods of cohabitation, how often have presidents refused the nomination of government ministers?

Well, first, it should be stressed that Lithuania is not experiencing a period of cohabitation. President Grybauskaitė is an independent. All the same, she has clearly aligned herself with the Conservatives. So, what we have in Lithuania is a ‘difficult case’ of cohabitation. In previous posts, I have recorded certain other examples.

If we leave the specific Lithuania issue aside and concentrate on the general problem, then three examples of presidents refusing to nominate particular ministers during cohabitation have been identified.

In France in 1986, President Mitterrand rejected the appointment of the Foreign Affairs and Defence Ministers. At that time, he intimated that because he had constitutional competences in these areas and also because the president does have to approve the appointment of ministers nominated by the PM, then he was entitled to oppose the proposed nominations. The new PM, Jacques Chirac, did not make a fuss and they agreed on two new appointments. So, the rejections were known, but it was not a stand-off or a crisis, partly because neither the president nor the PM saw it in their interests to create one.

My colleague, Iain McMenamin, reminded me of a similar case in Poland. He recounts the case in his chapter in the book edited by myself and Sophia Moestrup, Semi-presidentialism in Central and Eastern Europe. In the early 1990s, President Walesa insisted that he appoint three ministers in his “special special areas of responsibility”. In a slightly later Cabinet, Walesa refused to accept an SLD nomination for Finance Minister. As McMenamin then writes (p. 130): “Eventually, after a prolonged standoff, Walesa got the SLD to produce a new nomination for finance minister, while he accepted coalition-nominated deputy ministers in the presidential ministries.”

Another colleague and great friend to this blog, Cristina Bucur, also told me of a similar situation in Romania. In December 2007 President Băsescu refused to appoint Norica Nicolai as Minister of Justice. There are some details here.

I can’t think of any other examples, but I would guess that there are some. If anyone has any further examples, then do please comment.

The bottom line is that President Grybauskaitė is following the example of certain other presidents. That said, presidential refusals of ministerial nominations under cohabitation do seem to be pretty rare. If so, then it is perhaps more evidence that cohabitation is not necessarily as problematic as it is sometimes portrayed.

President or PM? Who attended the NATO summit in Chicago?

Yesterday’s post about the foreign visits of the Lithuanian president made me think about another article I had read. This was an article about the Finnish president and the fact that he was attending the NATO summit in Chicago. Given the Finnish president is now a symbolic figure, though, admittedly, with more legitimacy in foreign affairs than any other area, it was interesting that he was attending such an important summit.

Anyway, I checked the Wikipedia site for the summit and it gives a list of heads of state and government who attended. Obviously, the presidents of presidential countries attended and the prime ministers of parliamentary countries attended, but who attended for semi-presidential countries?

Part of the answer is easy. For semi-presidential countries with a strong presidency, the president attended (Azerbaijan, Armenia, France, Georgia, Romania, Ukraine). For semi-presidential countries with a figurehead presidency the prime minister usually attended (Croatia, Iceland, Ireland, Slovenia). Part of the answer, though, is more complicated. For a couple of semi-presidential countries with a very weak president the president still attended (Finland and Slovakia). For some semi-presidential countries where the president is more than a figurehead but where the Prime Minister is generally the more powerful figure, the president attended (Bulgaria, Lithuania, Poland, Turkey). Finally, for one country in this latter category the prime minister attended (Portugal).

So, there is no obvious pattern. Presumably, the answer should be constitutional. For example, in Finland, even though the president is now very weak, Art. 93 still states that the “foreign policy of Finland is directed by the President of the Republic in co-operation with the Government.” So, whereas the PM is clearly responsible for EU policy, there is a reason why the president should go to a NATO summit. Equally, in Romania, even though there is a period of cohabitation at the moment, the president has clear powers in terms of foreign and defence policy. So, it is natural that he should go. There is some information on constitutional powers in foreign policy topic in Tapio Raunio’s article in Journal of European Public Policy, 19:4, pp. 567-584, 2012.

However, the case of Croatia is interesting. Even though the president of Croatia is a figurehead, Art. 94 of the constitution of Croatia states that the “President of the Republic is responsible for the defense of independence and territorial integrity of the Republic of Croatia”; Art. 99 states among other things that the “President of the Republic and the Government of the Republic of Croatia shall cooperate in the formulation and execution of foreign policy”; Art. 100 states that the “President of the Republic is the Commander-in-Chief of the Armed Forces of the Republic of Croatia”; and Art. 101 also gives more details of the president’s powers in time of war. If you were the President of Croatia, this would probably be enough for you to insist on attending. And yet, the PM attended and, I suspect, without any presidential protest.

Moreover, previously there have been disputes in countries such as Poland and Slovakia as to whether the president should attend equivalent summits.

So, while the constitution holds some of the answer, my guess is that power politics matters as well. If anyone has any more systematic answers, or any country experiences to reveal, then please feel free to comment.

How many semi-presidential countries have a Vice President & what do they do?

Constitutionally, the answer to the ‘how many’ question is five: Bulgaria, Peru, Senegal, Taiwan and Tanzania. In practice, though, the answer is four. In 2009 Senegal passed a constitutional amendment creating the position of vice president. However, President Abdoulaye Wade, who was behind the reform, never appointed anyone. So, the answer to the how many question is fairly straightforward.

The answer to the ‘what do they do?’ question is more difficult. Peru and Tanzania have a prime minister and collective cabinet responsibility, but, in practice, they operate as presidential systems, even if Tanzania has a one-party dominant system as opposed to Peru’s typical Latin American fragmented party system. So, the role of the vice-president in these countries resembles those in equivalent presidential systems.

In Taiwan, as far as I can tell, the role of the vice-president is merely to replace the president if the president dies, resigns, or is incapacitated. My understanding is that President Ma’s first vice-president, Vincent Siew, also met with representatives of mainland China at certain meetings, which was politically sensitive. However, the post seems to be mainly honorific. Any more information would be welcome.

In Bulgaria, the vice-president assists the president (Art. 92 -2). In addition, Art. 104 states that the president “shall be free to devolve to the Vice President the prerogatives established by Art. 98 items 7, 9, 10 and 11.”. They are the power to “7. appoint and remove from office other state officials, established by law”, “9. grant, restore, relieve from and withdraw Bulgarian citizenship;”, “10. grant asylum;”, “11. exercise the right to pardon”. Does the vice president exercise any of these powers? The answer is yes.

In Bulgaria, the vice-president’s use of the right to pardon has become politically controversial. For example, the Sofia News Agency, Novinite, reports that in the ten years from 2002-2012 Vice President Angel Marin signed 49 pardon decrees even when the Pardons Committee had recommended that the pardon should not be used. In total during this period the President and Vice-President together issued 529 pardons, including more than 200 people convicted for murder. Interestingly, since taking office in January 2012 the current Vice President, Margarita Popova, has issued only one pardon. When she did so, she identified very clear grounds for issuing the pardon, trying to differentiate her use of the pardon from her predecessor’s.

So, Vice Presidents are very rare under semi-presidentialism. They are even rarer still in semi-presidential countries where the president is not a strong figure. Bulgaria is the only country where there is a weak president as well as a vice president. However, even in this latter case, the role of the Vice President can be controversial.

Poland – When did semi-presidentialism begin?

In a previous post on Ukraine, I posed the question of when countries in the former Soviet Union should start to be classed as semi-presidential. This is, for me, an important question because in the near chaos of the collapse of communism/declarations of independence most of these countries reacted by simply grafting a directly elected president on to their Soviet-era parliamentary-like constitutions. These countries then held direct presidential elections and only subsequently set about drafting a new constitution. Sometimes, there was up to a five year gap between the fall of communism and new consolidated constitutions. Given this blog uses a constitutional definition of semi-presidentialism, I need to know when a country was constitutionally semi-presidential in order to determine its start date. However, this is no easy task. The initial changes were often made by way of piecemeal laws that are often difficult to obtain.

Anyway, this week I was able to resolve at least one country to which this question is relevant. Even though it was, obviously, not part of the former USSR, Poland underwent a similar amendment process when the communist system began to collapse. Having identified various documents and with the kind help of a friendly Polish-speaking colleague, I have been able to piece together Poland’s semi-presidential history. The information in this post will not be news to Poland experts, but at least it helps to get the information out to a wider audience.

Poland’s constitution dated back to 1952. In April 1989 Round-Table Talks were held between the communists and the Solidarity opposition. This led to the delightfully named ‘April Novelization’ of 7 April 1989 that changed the constitution. With regard to semi-presidentialism, the key amendment was the creation of the office of a president of Poland. This institution replaced the communist-style collective institutions. However, at this time the president was elected by parliament. In December 1989 there were further amendments that, in effect, ended the communist system, but these amendments did not affect the presidency etc. Instead, the significant change came in September 1990 when another amendment was passed that created a directly elected presidency. The first direct election was held in December 1990. A new but nonetheless interim constitution was passed in 1992 and the current constitution dates from 1997.

I have the text of the various amendments (in Polish!), but they are not publicly available, as far as I know. I was able to access them via a library subscription from my home institution. If you would like a copy, then please just let me know.

The bottom line is that semi-presidentialism in Poland dates from September 1990.

Margit Tavits – Presidents with PMs

A fuller list of new semi-presidential-related publications will be posted in the near future. In the meantime, though, it is worth signalling a new book that is just out. It is by Margit Tavits, Presidents with Prime Ministers. Do Direct Elections Matter?, Oxford: Oxford University Press, 2008.

This is a provocative work. She uses quantitative and qualitative analysis to show that, contrary to common-sense expectations, direct election does not account for variation in presidential power across (mainly) Europe. Instead, presidential power varies more as a function of the party political opportunity structure.

In one sense, this book could be read and was perhaps intended as a critique of semi-presidentialism. However, I think of it more as a critique of naive views of semi-presidentialism. If this blog has an aim, then it is to dispel the idea that semi-presidential countries all operate in the same way – probably like France or Poland. Instead, semi-presidentialism provides a framework within which presidential power varies considerably.

Viewed this way, Tavits’ argument is quite consistent with the logic of this blog. Directly electing a president does not ensure a powerful president, or even a president with quite considerable powers – remember I live in Ireland, so I aware of this situation every day. Whether a president is powerful, quite powerful, not at all powerful etc. is not (or should not be) implied by the term ‘semi-presidential’. Semi-presidentialism is a constitutional framework within which presidential power varies as a function precisely of the factors Tavits identifies.

If I find reviews of the book in academic journals, then I will post the references to them.

SP countries where the president is head of government

A key assumption of this blog is that the list of countries with semi-presidential countries is very heterogenous. To operationalise semi-presidentialism in this context, we need to identify different types of semi-presidentialism and test whether particular types are associated with certain outcomes. To this end, I tend to prefer Matthew Shugart’s categorisation of president-parliamentary and premier-presidential countries because of the constitutional (and, therefore, largely unambiguous) way of making the distinction and the theoretical logic underpinning it.

Another way of distinguishing between different types of semi-presidentialism is to differentiate between countries where the directly elected president is constitutionally classed as the head of state and the head of government and those where this is not the case, even though in both there is also a prime minister and cabinet that are responsible to the legislature.

According to my records, the following countries currently have presidents that are constitutionally classed as head of government:

Mozambique (2004 Const., Art. 146-3)
Namibia (1990 Const., Art. 27-1)
Sri Lanka (1978 Const., Art. 38-1)
Tanzania (1977 Const. am. 1984, Art. 33-2)

Obviously, such a distinction would not help us to study semi-presidentialism very much because it would provide us with hardly any variation within the list of semi-presidential countries, whatever the theoretical rationale for the effects of the distinction might be.

Where such a list might be used is in relation to the never-ending debate about the definition of semi-presidentialism. To the extent that in these four countries the president is both head of state and head of government, they would seem to be the most constitutionally presidential-like of semi-presidential countries and some people may wish to classify them as such. However, I am happy to stick with them as semi-presidential.

Semi-presidentialism in the FSU – When did it begin?

The Former Soviet Union (FSU) is the home of a number of semi-presidential countries. In terms of their current constitutions, there are some unequivocal cases of semi-presidentialism: Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Lithuania, Russia and Ukraine. Previously, Moldova was unequivocally semi-presidential too. The situation in Tajikistan and Uzbekistan is a little more ambiguous. In both cases, parliament ratifies the president’s decrees that appoint and dismiss the prime minister. It is debatable as to whether this is sufficient to constitute a semi-presidential constitution. The level of responsibility to parliament is low and, in any case, responsibility is only individual and not collective.

Sticking to the unequivocal cases, the question is when do we date the start of semi-presidentialism? In the case of Georgia, the answer is easy. As per a previous post, it became semi-presidential in 2004 after a constitutional amendment. For the other countries, the dates of the first independence constitutions are as follows: Armenia (1995), Azerbaijan (1995), Belarus (1994), Kazakhstan (1993), Kyrgyzstan (1993), Lithuania (1992), Moldova (1994), Russia (1993) and Ukraine (1996).

While these are the dates of the first constitutions, it is common to think of semi-presidentialism starting earlier. This is because in the period immediately following the declaration of independence, and prior to the passage of the new constitution, most of these countries grafted a directly elected president onto the existing Soviet-era constitution. So, for example, the first presidential elections under Soviet-era constitutions were held as follows: Armenia (1991), Azerbaijan (1992), Kazakhstan (1991), Kyrgyzstan (1991), Moldova (1991), Russia (1991) and Ukraine (1991). Given these constitutions were, nominally, parliamentary, this combination of a direct presidential election and a parliamentary system seems to create the conditions for semi-presidentialism. (In Belarus and Lithuania, the first direct presidential elections took place under the first independence constitution. So, there is no doubt about when they began to be semi-presidential.)

All the same, I think we have to be a little careful as to when we date the beginning of semi-presidentialism and for two reasons. Firstly, I am not sure that there are consolidated constitutional documents prior to the passage of the first constitutions. Certainly, I have been unable to find them. If they do exist, then please let me know where to get hold of them. In the absence of a consolidated document, it is to difficult to verify the start date of semi-presidentialism. Secondly, even if there were consolidated documents, would they indicate semi-presidentialism? According to the 1978 constitutions of the socialist republics of the USSR, it is certainly the case that the Council of Ministers was responsible to the parliament (Supreme Soviet) and that there was a person who occupied the position of Chairman of the Council of Ministers. Moreover, prime ministers certainly existed in the newly independent countries from an early point: Armenia (1990), Azerbaijan (1991), Kazakhstan (1991), Kyrgyzstan (1991), Moldova (1990), Russia (1991) and Ukraine (1990). Again, though, in the absence of consolidated documents, it is difficult to verify the specific start date of semi-presidentialismism. Were there other amendments to the constitution apart from just the direct election of the president? Were there changes to the status of the prime minister and cabinet? And so on.

The precise start date of semi-presidentialism can be important because a couple of these countries experienced a brief period of democracy but then collapsed. For example, according to Freedom House Azerbaijan was a partial democracy in 1991 and 1992, but collapsed in 1993. The same is true for Kazakhstan from 1991-93 before its collapse in 1994. Studies about the positive or negative effects of semi-presidentialism on partial democracies do not have a large number of cases to go on. Therefore, the decision about whether or not to include two collapses is potentially important. If anyone has any comments, then please let me know.

When is a direct election not a direct election?

The direct election of the president is necessary condition for semi-presidentialism, but what constitutes a direct election?

In my 1999 edited book, I argued that a US-style electoral college was the equivalent of direct election. At that time, I used the term ‘popular election’ to describe this situation. This meant that I included Finland as a an example of semi-presidentialism even before the constitutional amendment that introduced full direct election of the president, the first of which was held in 1994. Please correct me if I am wrong, but the only other example of a semi-presidential country where there was an US-style electoral college rather than direct election per se was under the Cuban constitution of 1940 (Article 140).

The other example of a direct-like election is where the president is selected by a plebiscite. For example, in 1964 Egypt adopted a new constitution. Under the previous constitution the president was elected by the National Assembly. Under the 1964 constitution the National Assembly selected a presidential on the basis of a two-thirds majority and that candidate was then put to a popular referendum (Art. 102). In effect, the people could approve the National Assembly’s choice of candidate for president, or reject it in which case a new candidate had to be chosen and elected according the same procedure.

To me, a presidential plebiscite, i.e., an election where there is only one candidate and people have only a yes or no choice, does not constitute direct election. I’m not sure that I have a strong theoretical basis for this judgment. I classify countries as having semi-presidential constitutions whether or not they are democratic, however that term is defined. So, it cannot be on the basis that a plebiscite is somehow less democratic than a competitive election that I make the judgment call. I suppose intrinsically there just seems to be a difference between the situation where there is a plebiscite and where there is a competitive election.

For the record, the Egyptian constitution was amended in 2005 to make provision for a competitive election. Therefore, Egypt joined my list of semi-presidential countries at that time.

Of course, the other ambiguous example in this regard is Ireland. I classify Ireland as semi-presidential, though there are plenty of my colleagues on the island who think I am wrong to do so. However, in Ireland, the president is often elected without an election! If only one candidate is proposed, then no election takes place and the president is duly returned. This has happened in six of the twelve presidential elections since 1937. For me, this situation does not exclude Ireland from the list of semi-presidential countries. After all, an election could have taken place, but only one candidate happened to be nominated. So, it is the potential for a competitive presidential election that matters.

Hopefully, I’m not too far from the mainstream with these three decisions about what counts as direct election!

Interpellation vs motion of censure

If you speak French and you are interested in Africa, particularly African constitutions, then you should bookmark the blog by Stéphane Bolle. It provides a fantastic resource for the latest constitutional news in Francophone sub-Saharan Africa, as well as copies of academic papers and opinion pieces.

Recently, he posted on the situation in the Democratic Republic of Congo (DRC). Here, on 11 March the opposition interpellated the prime minister, Antoine Gizenga. In the end, for procedural (and political) reasons, the debate on the interpellation did not take place. However, as Professor Bolle notes in his blog, this is an interesting sign of parliament flexing its muscles in a system that knew only dictatorship and executive dominance for many years. This development suggests that the 2006 constitution may have the potential to meet its democratic and pluralist aspirations.

More generally, this situation reminded me of an e-mail discussion I was having not too long ago where the issue of interpellation was raised in the context of the definition of semi-presidentialism. In this blog, a necessary condition of semi-presidentialism is that the prime minister and cabinet should be responsible to the legislature. If a constitution makes no provision for motions of censure but does specify the opportunity for the interpellation of the government, is this sufficient to meet the requirement of collective responsibility to the legislature?

My reply to this question is: no. I am not a constitutional lawyer, but, all things equal, I see a difference between interpellation and a motion of censure. An interpellation is a way of forcing the government to the chamber to account for its actions. A motion of censure is the same except for the fact that necessarily it can result in the opportunity for a vote on the government’s existence. There may be cases where interpellations can also result in a vote to oust the government, but, for me, this needs to be specified in the constitution in order for a country to be classed as semi-presidential.

We can see this logic in a number of constitutions. For example, Article 128 of the 2003 Constitution of Rwanda includes interpellation in a list of ways in which the Chamber of Deputies can inform and control the government. The other means are oral and written questions, commissions of inquiry and hearings in parliamentary committees. Article 130 then goes on to specify the procedures for motions of censure against the government. The assumption is that interpellations belong to a class of actions that cannot result in a vote to bring down the government.

One of the difficulties with interpellations is that whether or not an interpellation can be followed by a vote to bring down the government is sometimes only explicitly specified in the regulations of the legislature. For example, the parliamentary rules for Algeria clearly distinguish between motions of censure, which can bring down the government, and interpellations, which cannot. However, parliamentary rules can often be very difficult to find.

Given that for the purposes of this blog the identification of semi-presidential countries is based on constitutions only, then I do not try to make any classification judgments on the basis of parliamentary rules. In this case, I only classify a country as semi-presidential if a constitutional mention of interpellation is combined with an explicit clause that such an interpellation can result in a vote against the government.

The 1992 Constitution of Djibouti is a case where there is no provision for a motion of censure but where the National Assembly does have right to interpellate the government (Article 61). So, I do not class Djibouti as semi-presidential. For the record, the 1993 parliamentary rules for Djibouti make no mention of interpellation being able to lead to a vote that can bring down the government.