the Bougainville model

There is a second exception to political instability in the South Pacific, which I thought should be mentioned.

The Autonomous Region of Bougainville, population approximately a quarter of a million, is a federacy of PNG. An independence referendum is due before 2020. Bougainville has its own executive, legislature and courts. The region went through an extended and bitter conflict with the national government over mining and land ownership issues between 1990 and 2005. Autonomy emerged from a peace agreement brokered by New Zealand and the Pacific Islands Forum. The history is tragic:

Bougainville has remained peaceful for a dozen years. Peace was negotiated following a decade-long war that is estimated to have caused approximately 2,000 deaths and possibly ten times as many more due to lack of services (Braithwaite et al. 2010).
The then province of Papua New Guinea fell from its top rank to the bottom in terms of per capita income and other social indicators of development among the 19 provinces.

 

The autonomous region has much broader powers than PNG provinces. The national government retains a defined list of powers and Bougainville anything not on that list is a function of the autonomous region. The regional constitution emerged from an inclusive process assisted by international mediators and experts. It is very different from the PNG constitution and other Pacific constitutions.

The president is popularly elected and automatically has a seat in the house of representatives.

The members of the executive council must be members of the Bougainville house of representatives. Some members of the executive council are regional representatives. Each is appointed in consultation with the members of the house of representatives for a subregion within the autonomous region. There is a similar provision a woman appointed in consultation with the women members of the house. Any member of the council can be dismissed by the president.

The president and all members of the  house of representatives can be recalled. The vice-president is appointed and dismissed by the president.

While the constitution does state that the executive council is responsible to the house of representatives and through the house to the people, (Section 85(2)(a)) there is no provision for a vote of no confidence.

The removal provision reads:

94.       VACATION OF OFFICE OF PRESIDENT.

(1) Subject to Subsection (2), the President ceases to hold office on the assumption of office by a new President following an election of President under Section 89 (election of President) or Section 90 (special election of President).

(2) The office of President becomes vacant if the President –

(a)        dies;  or

(b)        resigns by written notice to the Speaker;  or

(c)        ceases in accordance with Section 91(2) (qualifications for and disqualifications from election as President) to be qualified to stand for election as President;  or

(d)        is dismissed from office as President under the provisions of Part 13 (Leadership Code); or

(e)        is recalled in accordance with Section 58 (recall of members of the House of Representatives); or

(f)         is or becomes of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind;  or

(g)        has been declared bankrupt by a court of competent jurisdiction and remains bankrupt.

Part 13 provides for misconduct in office to be prosecuted before the Bougainville high court by the Bougainville ombudsman or the independent public prosecutor. No president has been removed or recalled.

Since the peace agreement Bougainville has regained about 40% of the per capita income it had when the war broke out. The region has considerable mineral resources, including the largest copper deposit on the planet.

Should the independence referendum pass, Bougainville will be the first nation with an incontestably presidential system in Oceania, although Madison’s eyebrows could possibly reach orbit were he confronted with an executive president and cabinet who also sit in the legislature.

 

 

 

 

Nepal’s new constitution

After its revolution in 2007 more than seven years of discussion, missed deadlines and constitutional deadlock in two consecutive constituent assemblies, Nepal finally passed a permanent constitution earlier this year, which entered into force on September 20th. A two-thirds majority was required to pass it.

The new constitution establishes the country as a federal parliamentary republic, with marked similarities to India and Pakistan. The president is elected for a five-year term by an ‘electoral college’ consisting of the federal parliament and provincial assemblies. Executive power is vested in the cabinet.

Legislative branch

Parliament is to be bicameral. The cabinet is responsible to the House of Representatives, which, like the Constituent Assembly, will be elected for five years through Mixed-Member Majoritarian: 165 seats by single-seat plurality and 110 by party-list PR, with no districting. The unusually-named (for an upper house) National Assembly have 59 members: 8 members from each of the 7 provinces elected by Provincial Assembly members, joined by local representatives (chairpersons and vice-chairpersons of village councils, and Mayors and Deputy Mayors of Municipal councils) whose votes will be weighted, presumably according to each local authority’s population; the other 3 will be appointed by the government. They are to serve a six-year staggered term, with one-third retiring every two years.

The National Assembly may delay financial bills by 15 days, and delay other bills proposed by the lower house for two months. Only bills that were introduced in the upper house but lack bicameral agreement are to be sent to joint session. Thus, Nepal’s bicameralism is far weaker than in India and Pakistan, where joint session is the deadlock-breaking mechanism for any non-financial bill. And even on bills that make it to joint session, Nepal’s upper house is weaker as it is smaller in relation to the lower house (India is roughly 2:1, Pakistan 7:2 while Nepal will be about 9:2).

With this weak upper house, the constitution enacted has no constitutional ex-ante checks on the power of a majority government to pass legislation. A large number of the proposed drafts contained a more powerful upper house. Sadly, the main parties probably made short shrift of such proposals, preferring not to have their ambitions checked when taking part in future governments.

The constitution can be amended by two-thirds majorities in both houses, with changes to provincial boundaries also requiring the consent of the assemblies of the provinces involved.

Judicial branch

Lastly, the Supreme Court is to be appointed on the recommendation of the Judicial Council, out of which a special Constitutional Bench will be formed including the Chief Justice and four other Justices chosen by the Judicial Council. The Chief Justice is appointed for a six-year term on advice of the Constitutional Council. All Justices serve until mandatory retirement age of 65.

The Judicial Council will consist of:

  1. the Chief Justice, presiding,
  2. the most senior Supreme Court Justice
  3. the Federal Law & Justice Minister,
  4. a senior legal expert appointed by the PM, and
  5. a senior legal advocate appointed by the Nepal Bar Association.

The Constitutional Council will consist of:

  1. the PM, presiding,
  2. the Chief Justice
  3. the chairman of the upper house
  4. the speaker of the lower house
  5. the deputy-speaker of the lower house, and
  6. the Leader of the Opposition

Enduring controversies

Far from settling Nepal’s political quagmire, the new constitution has proven to be very controversial. Its (impending) passage sparked demonstrations and unrest around the country. Protesters have blocked roads and vital supplies and dozens have died in clashes with police over the past few months.

The most contentious issue remains as it was during the years of deadlock in the Constituent Assemblies: the drawing of the boundaries of the new provinces. While the final boundaries are said not to be completely settled yet, the schedule is quite specific, and it provides for largely multi-ethnic provinces. There is therefore a great deal of opposition from groups wanting a linguistic and ethnic delineation providing them with their ‘own’ provinces.

Other disputes include women and minority rights in the new constitution (including in particular the definition of citizenship, which favours the father), its secular nature, the lower proportion of lower house seats to be elected by PR (45%, compared with 58% for the Constituent Assembly), and the federal terms concerning provincial autonomy. There are, of course, also those happy the constitutional deadlock is over, if not with the constitution itself, but

It will be interesting to see whether the final provincial boundary-drawing will be affected, and how the salience of these constitutional issues evolves. The first regular elections will not be held for several years, as the term of the Constituent Assembly, now transformed into ‘Legislature-Parliament’, will end in January 2018.

UK executive veto?

At least 39 bills have been subject to Royal approval, with the senior royals using their power to consent or block new laws in areas such as higher education, paternity pay and child maintenance.

Internal Whitehall papers prepared by Cabinet Office lawyers show that on one occasion the Queen vetoed the Military Actions Against Iraq Bill in 1999, which aimed to transfer the power to authorise military strikes against Iraq from the monarch to parliament.

(Telegraph, 15 January)

Belgian Senate reform

authored by JD Mussel

Since 1970, Belgium has gone through no less than 6 constitutional reforms, possibly more than any other western democracy during the same period. Most importantly, these have transformed it from a unitary state into a full-fledged federation (since the 4th reform, in 1993-95). One of the results to come out of the prolonged (and record-breaking) government formation of 2010-2011 was agreement on a 7th constitutional reform, which will enter into effect after the upcoming elections in May 2014. The most well-known of the changes to be implemented is the splitting up of the Brussel-Halle-Vilvoorde constituency along language lines, a measure mandated by the Constitutional Court, solving a quandary which has been a major stumbling block in government formation and reform negotiations over the last five years.

There are more parts to the constitutional reform, but the most important change is probably to Belgium’s Senate. Before 1993, the Senate was perfectly co-equal with the House of Representatives, to the point that governments needed the confidence of both houses. This did not cause much instability, as the houses had similar political compositions; the Senate was largely elected, at the same time as the House, with some members indirectly elected by provincial councils, and the last group co-opted by the first two (Additionally, some Princes were, and until next year remain, members of the Senate by right, but in practice they do not participate or vote). In 1995, the composition of the Senate was changed to 40 directly-elected, 21 elected indirectly by the new Community/Regional parliaments and 10 co-opted members, while its powers were drastically curtailed: its powers to remove a government, as well as block supply, were removed, as were its powers over a host of issues for which the House was designated as having the final say. The Senate retained its veto on constitutional amendments and other changes to state organisation, federal relations and treaties. For other matters bicameral procedure became ‘optional’ – the lower house could decide what to do.

The newest reform will change the composition of the Senate to 50 elected indirectly by the Community/Regional parliaments and 10 co-opted, removing all directly-elected members. Its powers and functions will also be hugely curtailed: it will no longer take part in regular legislation, will no longer have the power of inquiry or to ask ministers questions. The only legislative power it retains regards to the constitution and the monarchy. Instead of being a true legislative chamber, the Senate is supposed to become a forum for the Regions and Communities. The reform was a compromise between those wishing to abolish and those wanting to retain the chamber (the latter being mainly French-speaking parties, if I’m not mistaken).

The difference in political composition that is likely to result may justify a certain curtailment in the Senate’s powers, but why that should mean it abolishing its legislative role entirely, let alone taking away its powers of inquiry, is somewhat beyond me…

Fiji: “open” list PR, M=50

Fiji has a new constitution. Among the provisions is a new electoral system that will consist of a single nationwide district of fifty seats, using “open-list” proportional representation (OLPR).

By my reading of Art. 53 of the constitution, ((I thank Jon Fraenkel of the Victoria University, Wellington, for sending me a copy.)) it is not clearly open list, in the proper sense of the rank-order of candidates being determined solely by individual preference votes. Yes, it says “open list”:

53.—(1) The election of members of Parliament is by a multi-member open list system of proportional representation…

However, it does not go on to define what this means. A variant of the “flexible” (or semi-open) list system would meet the plain wording of the text. It seems to require that voters give a preference vote:

the total number of votes cast for each political party contesting the election, which shall be determined by totalling the number of votes cast for each candidate of that political party;

However, that does not preclude its being what I call (in my chapter in Gallagher and Mitchell, The Politics of Electoral Systems) a latent list, as in the Netherlands and Estonia. These are both variants of flexible list that require individual preference votes yet still have a fixed order that is overcome only by candidates who obtain some quota of preference votes.

If it really is an open list, Fiji will join Colombia as perhaps the only country to use such a system in a single nationwide district. There it is used in this manner for the Senate only (M=100); the House of Representatives is open list, but districted. ((Actually, in Colombia, parties may present either closed or open lists. Most have chosen open. See Pachon and Shugart in Electoral Studies, 2010.)) There are other cases of OLPR in districts at least as large as Fiji’s, including the Sao Paulo district for Brazil’s Chamber of Deputies (M=70) and the statewide districts several Brazilian state legislative assemblies (one of which has a magnitude of 120, I believe). But Fiji’s single district would be larger than the largest district in Finland (M=34, currently). OLPR in such large districts is problematic because of the overwhelming choice of candidates and challenges of clear ballot design. ((Brazil uses all electronic voting in recent elections.))

If it is flexible (latent) list, it would join Netherlands and Slovakia (both M=150) as cases of nationwide application. However, in the Netherlands, choice and complexity are somewhat reduced by the use of nominating sub-districts.

In any case, Fiji will be an interesting addition to the set of very high-magnitude preference-vote systems.

There will also be a 5% threshold for a list to obtain representation.