Ireland – Some brief reflections on the first meeting of the Constitutional Convention

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Ireland has established a Constitutional Convention. I had the great pleasure and privilege of attending the first working meeting this weekend. I am taking the opportunity to describe very briefly how the Convention worked, what decisions it made and, in a strictly personal capacity, to reflect on the whole process.

Modelled on similar exercises, for example in Iceland as reported previously on this blog, the Convention comprises 100 members, 66 citizens, 33 politicians, and the chair. The Convention has been asked by the legislature to look at specific proposals for constitutional reform, but it also has the opportunity to raise other matters. The terms of reference are available here.

There was a plenary meeting last year, but the first working meeting was held this weekend. Two topics were open for discussion: whether or not the voting age should be reduced from 18 to 17 and whether or not the president’s term of office should be reduced from 7 years to 5 years and presidential elections aligned with local and European elections. I was asked to provide a briefing document to the members on reducing the president’s term and to make a presentation on the topic. The document is available here and the video of the presentation will be made available soon.

The discussion started on Saturday morning and ended on Sunday lunchtime with a vote on these two questions and other matters too. In the end, the Convention members voted 52-47 to reduce the voting age, with a slight preference for a reduction to 16 rather than 17. The members voted not to reduce the president’s term by 57-43.

While these were the questions that the legislature had required the members to debate, it was agreed over the course of the days that there could be a vote on a small number of other matters too. In relation to the presidency, there was very strong support (94-6) for allowing citizens to have the opportunity to nominate presidential candidates. (Ireland has a very restricted party-dominated nomination system at present). There was a complete split (44-44) on the issue of whether presidents should serve for only one 7-year term and strong opposition (78-14) to a proposal for one 5-year term.

The Convention will now write a report that will go to the legislature. Other topics will be debated over the coming year. There would have to be referendums on issues that the Convention approves, but whether or not these will take place and, if so, when will be decided, in practice, by the government/legislature.

It was a real honour to be a part of the discussions and interesting to be able observe the deliberations generally. For what it’s worth, here are my thoughts on the weekend.

Above all, I thought there was real engagement with the process. In the roundtable discussions I was asked a lot of very serious, extremely challenging, and really insightful questions. People genuinely wanted to explore the issues involved. They wanted to know about the presidency. They wanted to know what happened in other countries. They wanted as much information as possible before coming to any conclusion.

Also, it was clear that members wanted to go beyond the rather narrow question that was on the agenda and explore issues a little more generally. I thought this was very welcome. Moreover, even though members wanted a slightly wider discussion, there was never any attempt to hijack the debate, or make it so broad that it lost meaning. So, I thought members were trying to discuss issues very responsibly.

In addition, there were very positive discussions about how the meeting should be organised, how votes should be taken, how questions should be worded. Again, without any attempt to try to exercise pure ‘people power’ for the sake of it, there was a real sense that the members had ownership of the procedures.

Finally, the meeting was handled really excellently by the chair, Tom Arnold. In particular, he was very keen to ensure that as many people as possible contributed to the plenary discussion. In addition, the meeting was facilitated extremely well by the administrative and academic support staff. I know that a lot of preparation went into the event and I am sure that everything went off so smoothly both because of the members’ attitude and because of the attention to detail by the administrative and academic team in advance.

If there were any slightly negative points, then perhaps two things come to mind.

Firstly, the tone was slightly more formal than I had expected. I wore a suit for both days. So, I’m in no position to criticise! But maybe a ‘dress-down-Friday’ rule might set a slightly more relaxed environment and encourage discussion.

Secondly, while it is important that parties are there to generate political buy-in, elected representatives did tend to dominate the plenary discussions. To be fair, there was very little party grandstanding and by no means all representatives felt the need to intervene. However, there was a sense that political figures were prominent. Over time, this changed a little, not least because of the efforts of the chair. But, maybe, in future the influence of representatives will be a little more understated.

Overall, I got the sense that people felt it was a worthwhile experience. Obviously, time will tell as to whether anything concrete comes of the Convention’s deliberations.

Czech Republic – First presidential election will generate a period of cohabitation

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The Czech Republic has elected its first directly elected president. Here is the result:

  • Milos Zeman (Czech Social Democratic Party) 54.8%
  • Karel Schwarzenberg (Tradition Responsibility Prosperity 09) 45.2%
  • Turnout 59.11%

So, consistent with the predictions of commentators like Sean Hanley, former PM Milos Zeman is the new president.

As reported in a recent article, the Czech president has very few powers. So, we have yet another directly elected but figurehead president to add to the list.

That said, the president is not a cipher. According to my figures. PresidentKlaus has vetoed no fewer than 63 bills since 2003. In addition, his decision to amnesty a large number of prisoners at the New Year caused a political storm. So, even if the Czech president is weak, the institution has the capacity to be both politically active and controversial.

Moreover, the election of Zeman will lead to a period of cohabitation. The government of Petr Necas comprises the ODS, TOP 09 and LIDEM parties. The CSDP is in opposition. So, the Czech Republic will get a real taste of semi-presidentialism when President-elect Zeman takes office in March.

Lithuania – A different type of presidential power

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Continuing the theme of presidential powers and/or (non-)powers, here is an example from Lithuania.

In early January President Dalia Grybauskaitė refused to grant Lithuanian citizenship to an American ice skater who wanted to compete for Lithuania in the Winter Olympics. This is an interesting power in itself. For example, it could be a factor in who can or cannot stand at elections.

Anyway, following her decision, President Grybauskaitė then asked the Constitutional Court for guidance as to when she could grant citizenship, and whether the rules can be loosened by way of a simply law or whether a constitutional amendment is required. Lithuania Tribune now reports that the Court has agreed to accept the motion filed by President Grybauskaitė.

Now, these presidential powers are constitutional. Art. 84 (21) states that the president has the power to “grant citizenship of the Republic of Lithuania according to the procedure established by law”. Arts. 106 and 107 provide circumstances in which the president can petition the Court, though it is not clear from the president’s website which clause has been invoked.

I like this example because it is a case of a president using the law to identify the boundaries of certain powers, including presidential powers. But I also like it in the context of Lithuania’s current period of de facto cohabitation and the President Grybauskaitė’s desire to establish her own prerogatives in opposition to the government. Any Court ruling is unlikely to expand the president’s power significantly, but it may put pressure on the government either to change the law or even the constitution and there may be political costs to the government in doing so.

So, the ‘non-partisan’ president may find that her powers are slightly increased; she certainly keeps herself in the public eye; and she may cause some difficulty to the government down the line. That’s good presidential politics.

New Publications

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Thomas Sedelius and Olga Mashtaler, ‘Two decades of semi-presidentialism: issues of intra-executive conflict in Central and Eastern Europe 1991–2011’, East European Politics, online first.

Gerhard Seibert, São Tomé and Príncipe: Political Instability Continues, available at: http://www.ipris.org/?menu=6&page=52

Charles H. Fairbanks, Jr. and Alexi Gugushvili, ‘A New Chance for Georgian Democracy’, Journal of Democracy, Volume 24, Number 1, 2013, pp. 116-127.

Lilia Shevtsova, ‘Russia under Putin: Titanic looking for its iceberg?’, Communist and Post-Communist Studies, Volume 45, Issues 3–4, September–December 2012, Pages 209–216.

Мовчан Уляна Ігорівна, ‘ПРЕЗИДЕНТ, ПАРТІЙНА СИСТЕМА ТА УРЯД: ПОТЕНЦІЙНІ КОНФЛІКТИ ТА ШЛЯХИ ЇХ ПОДОЛАННЯ’, Стратегічні пріоритети, No 4 (25), 2012, available at: http://www.niss.gov.ua/public/File/Str_prioritetu/SP_4_2012.pdf#page=53

European Journal of Political Research Political Data Yearbook, December 2012, Volume 51, Issue 1, Pages 1–343, Government and election details for all European semi-presidential countries.

Parliamentary Affairs, Special Issue: French Presidential and Parliamentary Elections 2012, Volume 66 Issue 1 January 2013.

Jørgen Møller and Svend-Erik Skaaning, ‘Regime Types and democratic sequencing’, Journal of Democracy, Volume 24, Number 1, 2013, pp. 142-155.

Fauzi M. Najjar, ‘Mubarak’s Constitutional Reforms’, British Journal of Middle Eastern Studies, 38(1), 7–22, April 2011.

CAR – A test of semi-presidentialism’s capacity to generate political stability?

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The situation in the Central African Republic has stabilised in the last couple of weeks. Indeed, the situation there now creates the conditions for what might be considered a test of one of the supposed advantages of semi-presidentialism.

Prior to the New Year, rebel forces were able to advance steadily towards the capital, Bangui. The democratic opposition to President Bozizé gave the armed rebels their support. Even though there was little appetite for the overthrow of President Bozizé on the part of his fellow heads of state in Africa, the weakness of his position was clear. Therefore, very quickly President Bozizé agreed to negotiations with the rebels/opposition. They agreed partly because of the attitude of the international community.

The peace talks quickly led to an agreement. There was a cease-fire, the text of which in French is here. There was then a political agreement, the text of which is also available in French here.

The key points of the political agremeent are as follows:

  • The president remains in office until 2016
  • There will be a Government of National Union comprising supporters of the President, as well as the various elements of the opposition
  • The Government will be in power for at least 12 months and the President cannot dismiss it from office
  • The Prime Minister will be appointed from the opposition

Consistent with the agreement, the incumbent government duly resigned. The opposition has agreed on its candidate for PM. The president now has to appoint the PM formally to office. There are no signs that he will not do so.

The agreement has some of the signs of the sort of arrangement that was reached in Kenya and that still applies in Zimbabwe. However, there are major differences. This is not a constitutional document, whereas the agreements were constitutionalised in the other two cases. In addition, the other agreements were very detailed. This document is very short. (For the record, the Kenyan agreement did establish a semi-presidential regime, at least until the new presidential constitution was adopted. By contrast, the Zimbabwe agreement did not establish semi-presidentialism because the government is not responsible to the legislature).

Over and above the specifics of this particular case, the CAR agreement is interesting because it creates the conditions for a test of one of the supposed advantages of semi-presidentialism. There is a body of mainly theoretical work, which says that semi-presidentialism can be advantageous because it allows the president from one political force to share power with a prime minister from another force. Both forces feel that they have a stake in the system. Therefore, the danger of instability is reduced. To be clear, this arrangement is not a system of cohabitation because the president’s party or supporters are represented in the cabinet. (That said, in everyday journalistic talk, it is not uncommon to hear this arrangement being called cohabitation. One example relating to the CAR agreement is here.)

An open question, though, is what the situations like the ones in CAR and Kenya are really providing a test of. The CAR is not a democracy and neither was Kenya at the time of the agreement there. Do those who argue in favour of semi-presidentialism assume that this advantage applies only to democracies and that it can help to stop them from reverting to autocracy? Or, by contrast, do they assume that it is only or people also useful for non-democracies as a way of helping them to create the conditions for moving to democracy. These are two very different scenarios. Usually, the pros and cons of presidentialism, parliamentarism and semi-presidentialism are based on the former assumption. In other words, they are located in the literature on democratic consolidation and how to ensure that democracy does not collapse once it has emerged, rather than the literature on democratization and how to bring about democracy in the first place.

Obviously, the situation in CAR cannot a test of any argument about democratic consolidation, because the country is currently well below any threshold of democracy. However, like the Kenyan case, it could be considered a test of whether semi-presidentialism can create the conditions for the emergence of democracy by establishing a system of power-sharing.

As an aside, Kirschke’s 2007 article in Comparative Political Studies is about the only study that comes close to providing a proper test of this supposed advantage of semi-presidentialism and, to my mind, the paper is very flawed. The definition of semi-presidentialism is not rigorous. The application of the term ‘cohabitation’ is not rigorous either. It also includes democracies and non-democracies in the study, yet, as I have just outlined, the literature tells us again and again that we need to treat these scenarios differently.

Anyway, the situation in CAR provides a potential test of one of the supposed advantages of semi-presidentialism and its capacity to generate the conditions for democratisation. Let’s see what happens and hope that CAR’s history of instability can be overcome.

Czech Republic – Presidential election, 1st round

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The Czech Republic held its first ever direct presidential election on Friday/Saturday. This followed last year’s constitutional amendment.

Here are the results from aktualne.cz:

  • Miloš Zeman (Party of Civic Rights – Zeman’s people) – 24.21%
  • Karel Schwarzenberg (Tradition Responsibility Prosperity 09 – TOP09) – 23.4%
  • Jan Fischer (Independent) – 16.35%
  • Jiří Dienstbier (Czech Social Democratic Party) – 16.12%
  • Vladimír Franz ((Independent) – 6.84%
  • Zuzana Roithová (Christian and Democratic Union – Czechoslovak People’s Party) – 4.95%
  • Taťana Fischerová (Key Movement) – 3.23%
  • Přemysl Sobotka (Civic Democratic Party) – 2.46%
  • Jana Bobošíková (Sovereignty – Jana Bobošíková Bloc) – 2.39%

So, the second round of the election will take place on 25-26 January. The two candidates, Miloš Zeman and Karel Schwarzenberg, are both relatively pro-European. Zeman is from the social democratic side of the political spectrum, whereas Schwarzenberg is from the liberal tradition. Zeman was PM from 1998-2002. Schwarzenberg is the current Foreign Minister.

Currently, the Czech government is unpopular and has faced various political difficulties. Specifically, it is now a minority government, though it can generally rely on the support of independents to stay in office. This will be put to the test next week. Reuters, via Parlgov, is reporting that the government faces a vote of no-confidence on 17 January. This is in response to President Klaus’s controversial decision at the New Year to amnesty around a quarter of prisoners in the country on the 20th anniversary of the Republic. The domestic politics of the government may affect the vote for the presidential candidates at the second round.

Welcome to semi-presidentialism!

São Tomé e Príncipe – Another presidential (non-)power

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The situation in São Tomé e Príncipe has been difficult in recent months, culminating in the replacement of the ADI government by a new coalition government. There is a nice briefing document by Gerhard Seibert on the situation available here.

Now, a new controversy has broken out and, like the previous post on Slovakia, it sheds light on another presidential power/non-power. According to various reports in Téla Nón, the story seems to go something like this.

In March 2012 the then ADI government issued a resolution in the Council of Ministers stating that São Tomé e Príncipe recognised the independence of Kosovo. The problem is that President Manuel Pinto da Costa did not issue a decree ratifying the decision. The president’s approval was necessary for the decision to become law. (Parliament did not debate the issue either, but it seems as if parliament’s approval was not necessary).

In July 2012 President Pinto da Costa sent a letter to the government asking for more information about the resolution. It seems as if no formal reply was forthcoming, though the ADI say that the president was fully briefed about the issue.

Anyway, with the ADI government now out of office, the president has issued a formal communication stating that São Tomé e Príncipe does not recognise the independence of Kosovo. The current government seems to be happy with this position. By contrast, the ADI has reacted badly, accusing the president of trying to destroy the work that it had undertaken in office.

There seems to have been some international pressure behind these different decisions. Leaving that aside, what is interesting is that this is another example of a de facto presidential veto power. The ADI government clearly wanted to pursue a particular policy. The president, for whatever reason, did not. By simply refusing to ratify the government’s resolution, the policy was not properly implemented. Only now has the president formally opposed the decision.

Slovakia – Presidential (non-) appointment powers

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In many constitutions, presidents have the constitutional power/duty to sign into law the proposal to appoint people to various political offices. In other words, another institution – perhaps the PM – nominates the person to the particular office and the president signs off on the nomination, thus officialising the appointment. The wording of this presidential power/duty in the constitution is almost always in the present indicative tense i.e. “the president appoints …”. However, the use of this tense raises the question of whether the president has the right not to sign off on the nomination.

Art. 102 (1) t of the Slovakian Constitution states that the President of Slovakia “appoints and recalls judges, Chief Justice and Deputy Chief Justice of the Supreme Court of the Slovak Republic, General Prosecutor …”. The appointment of a new General Prosecutor has been causing a political stir for some time now.

The Slovak Spectator reports that President Ivan Gašparovič has refused to sign off on the proposed appointment of Jozef Čentéš as General Prosecutor. The precise details of the case need not detain us. However, the key point is that in June 2011 parliament passed a resolution naming Mr Čentéš to the office. The president refused to make the appointment arguing that the parliamentary vote was not properly conducted. The issue then went to the Constitutional Court in October 2012. The Court ruled that the parliamentary vote was valid. However, it also, in effect, granted the president the power to veto the appointment “if the candidate does not meet the legal requirements for the office or there are ‘grave reasons’ that cast doubt on the candidate’s ability to perform the job”. So, the Court did not give the president a blanket power to refuse a nomination, but it did make it clear that there were conditions under which the president could refuse nominations.

So, the Court’s ruling meant that the use of the present tense in the constitution did not imply that the president’s signature had to be automatic. In effect, the Court increased the veto power of the president.

To bring the story up to date, President Gašparovič has now formally written to parliament rejecting the nomination. He has provided a list of reasons, but these are contested both by the opposition parties, who were in office when the nomination was made, and by Mr Čentéš. Interestingly, the new PM, Robert Fico, did not condemn the president’s actions.

Romania – Agreement on Institutional Collaboration during cohabitation

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Time to reflect on a remarkable document that appeared in Romania just before the holiday season. This is the officially titled Agreement on Institutional Collaboration between the President of Romania and the Prime Minister of the Government.

The document was first seen being handed to Martin Schulz, the President of the European Parliament, by President Traian Băsescu at the EU Summit meeting on 14 December. It was then made public on the website of both the president and the PM, Victor Ponta. There is an English version here. (Thanks to Elliott Bulmer). The official nature of the document is, thus, clear.

The document is explicitly designed to regulate the current period of cohabitation, or, perhaps more accurately, the period following the formation of the new government in December 2012. The aim is clearly stated: “The institutional cooperation agreement is aimed at keeping the country stability and ensuring a functional climate for a good governance and ensuring the confidence of international markets, through harmonization of joint positions within the Executive power, with observance of the constitutional powers of the Romanian President and Government”.

Some of the document has a general ‘political spin’ flavour to it. So, both parties agree to “respect for Constitutional values and fundamental institutions of the state …”. Let’s face it, though, it is difficult to imagine either party ever justifying an action against the other by saying that they are not respecting the rule of law.

That said, there are some more specific commitments. For example, the document states that the parties “commit to refraining from attacks against the rule of law institutions and those included in external commitments, of financial and political nature, opting to cooperate in their common positions towards IMF, WB, Council of Europe, NATO, MCV, Schengen, etc.”.

Interestingly, they agree a formal division of labour (let’s call it the ‘segmented decision-making model), whereby the respective powers of the president and the PM are identified: “President: foreign policy, defence policy, representation to the European Council, according to Constitutional Court’s Decision. Prime Minister: Economic and social policy, country’s government, current problems that do not have direct impact on national security, external relations at inter-government and European levels.”

Perhaps more interestingly still, they identify certain areas of cooperation where they explicitly state that they have to work together. They are:

– foreign policy and cooperation with MAE (Foreign Affairs Ministry):
– policy within EU and cooperation with MA Eur (European Affairs Ministry) and MAE;
– appointment of generals;
– appointment of Ambassadors;
– appointment of the General Prosecutor, Chief Prosecutor of DNA, or other positions requesting Constitutional powers of President and Government;
– developing common positions on third topics;
– domestic policy topics with incidence in the national security area.

The document states that if agreement cannot be reached in these areas, then “the final decision-maker will have priority”. That may beg a question as to who the final decision-maker actually is, but presumably it relates back to the general spheres of influence identified above.

Finally, there are two remarkable paragraphs that give us an insight into the actual decision-making process. Paragraph 6 states that decision-making “is mainly the meeting or direct discussion between President and Prime Minister. Exceptionally, other persons can be involved, with the permission of the two officials, or a topic can be delegated to the administrative system of the two institutions – advisers, technical apparatus.” Paragraph 7 then identifies a conflict-resolution mechanism: “The dispute resolution mechanism comprises advisers and Ministers, with a person designed by each side to manage each component. The designation will be made according to the topic debated, and there will be avoided [sic] controversial persons or unacceptable to the other party”.

This is the first document of this sort that I have ever heard of. While it does contain some very general statements of intent, it also some contains some quite detailed commitments. Of course, it has no constitutional or legal status. Therefore, it is not justiciable. So, it is a ‘working agreement’. If either side violates it, then the only sanction is political or electoral. Even so, there will be some pressure to keep to it.

The pressure to keep to it is emphasised by the fact that the document has not just a domestic but an external audience too. The fact that President Băsescu was handing it out to Brussels is one sign of that. It is also worth noting that the document was issued just before the Venice Commission issued its ruling on the impeachment events earlier in the year. The ruling was quite critical. So, there was a sense that the public institutions felt that they needed to be publicly seen to have regulated the situation. There was a fear that the EU may not be as forthcoming with its aid if this was not the case and that foreign exchange markets and international lenders might react badly at the prospect of ongoing conflict. So, there is an international realpolitik at work.

Whatever the motivation, it doesn’t take away from the uniqueness of the document.

Georgia – Cohabitation

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There is plenty going on in Georgia at the moment. The new period of cohabitation has started to become more conflictual. I have posted links to various items on the Facebook page, but here is a general summary.

On 25 December another opposition UNM deputy defected to the government’s side. Extrapolating from a Civil.Ge report, this now means that the government bloc is supported by 90 deputies. There are 150 deputies in total. So, this means that if all the non-UNM deputies vote together, then the government has a three-fifths majority, which is enough to overturn a presidential veto.

This arithmetic was immediately (and perhaps not coincidentally?) put to the test on 27 December when President Saakashvili announced that he was vetoing a government bill that would provide an amnesty for various prisoners. According to another Civil.Ge report, President Saakashvili objected to the idea that political prisoners were being released, declaring that there were none in Georgia.

On 28 December Civil.Ge then reported that parliament had voted by 91-24 to overturn President Saakashvili’s veto. This vote clearly sets a precedent. The president now knows that he cannot delay the majority’s legislation. This may actually encourage him not to veto legislation.

Almost immediately there was another development. On 28 December Civil.Ge reported that the government was planning to introduce a constitutional amendment. The situation is a little complicated but it seems to be designed to plug a loophole in the constitution.

Basically, Georgia still has a president-parliamentary system. So, President Saakashvili can dismiss the PM and government. The constitution states that if the new PM is not approved by parliament after three votes, then the president has to dissolve the legislature. However, the constitution also states that the legislature cannot be dissolved in the six months following a parliamentary election (which was held in October 2012) and in the six months prior to a presidential election (which is due to be held in October 2013). So, this raises the possibility that President Saakashvili could dismiss the government, appoint his own PM and government, and avoid having to face new parliamentary elections before the presidential election.

The government plans to plug this loophole by not allowing the president to appoint a government before the next election. So, even if President Saakashvili were to dismiss the current government, it would stay in office until that time.

The problem for the government is that it still needs about 9 or 10 more votes in parliament to amend the constitution. The government has announced that it has dropped plans to try to decrease the president’s powers generally. So, maybe this ‘concession’ will be enough to allow the proposed ‘procedural’ amendment to gain enough support to pass.

My guess Georgia is that there will be plenty of articles about cohabitation in Georgia in the coming years!