President of South Korea announces constitutional reform proposal

South Korean President Moon Jae-in has announced his support for amending the South Korean Constitution to allow presidents to serve two four-year terms, instead of the current non-renewable five-year term. Moon, of course, came to office following the impeachment of Park Geun-hye, who became embroiled in a corruption scandal at the end of her non-renewable term: a similar fate befell her predecessor, Lee Myung-bak, who was recently arrested for a wide range of corruption charges.

Presumably, the idea behind this proposal is that it will encourage presidents to improve their behaviour at the end of their terms, given that they will be entitled to seek re-election. The proposal would also mean that members of the National Assembly would serve terms of the same lengths as the President, although elections to the two offices would not become concurrent–indeed, given that Moon’s term expires in 2022, and that the National Assembly’s term expires in 2020, it would shift South Korea to having legislative elections consistently in the middle of presidential terms.

The proposal has a number of other features. The Prime Minister will no longer be expected to act “under order of the President”, the voting age will be lowered from 19 to 18, and the President is no longer able to appoint the head of the Constitutional Court. However, there would appear to be no change in how the Prime Minister is appointed or removed: the Assembly can only pass a motion recommending that the PM or a minister may be removed, which both Samuels and Shugart (2010) and Robert Elgie have interpreted as not being sufficient for semi-presidentialism. The Prime Minister will also remain nominated only by the President (subject to Assembly confirmation).

Passage of the amendments requires approval of two-thirds of the National Assembly and majority support at a referendum with a majority turnout threshold. Moon’s Democratic Party only holds 121 seats in the 300-member assembly, and the opposition right-wing Liberty Korea Party holds 116, giving that party veto power over any potential amendment. That party appears to oppose the amendment proposal, instead apparently supporting a switch to semi-presidentialism, although the Democratic Party could block that. Moon’s proposal has greater public support, although the vast majority of the electorate support at least some change.

A reaction to “no separation of powers without divided government”

Vox published quite an incisive article today by Lee Drutman. The title almost speaks for itself, though I would have put ‘checks and balances’ where he put ‘separation of powers’, since the point is that the latter has proven insufficient for the former to be meaningful or effective. Though the issues involved should be very familiar to most of our readers, it is worth a read, and is not long. The article’s diagnosis is very accurate, and the solutions it points to are spot on (refreshingly, confidence votes are mentioned in addition to proportional representation). Its analysis of the founders’ constitutional design intentions is, however, flawed.

First of all, the founders probably did not think the Constitution would prevent parties from forming. The authors of the Federalist Papers certainly didn’t think so. In Federalist no. 10, Madison argues that parties arise from “the nature of man”, and quite clearly states that as long as we maintain liberty, faction is inevitable: “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests… The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.”

To Madison, therefore, the purpose of constitutional design is not to prevent faction or extinguish it, but to “control its effects”. In Federalist no. 10 he proposes to achieve this end through the large republic, whose size and combination of so many people with so many different interests would make it hard for a majority to materialize. In Federalist no. 51, he repeats this argument, saying “the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” But to this he adds another mechanism: “each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others.” This is the separation of powers, giving the different branches institutional independence and their own separate interests.

As Drutman rightly says, experience has shown, especially lately, that this system of incentives has proven insufficient (especially to checking the executive) when the presidency and both houses of Congress are controlled by the same party. It is hard to argue the framers did not attempt to guard against just that, especially in making the House and Senate so different from each other. The passage which Drutman himself quotes from Schattschneider is probably correct, and as Drutman himself writes, “[dividing] up power across so many competing institutions that it would be impossible for partisan majorities to form” meaning majorities of the same party in both houses along with the presidency – unified government. I don’t think the framers were so optimistic as to think their design made unified government impossible, only that it made it significantly less likely – not an unreasonable expectation. But unified government was not an unknown danger, but one of the main dangers they set out to avoid. And, as I said before, they clearly did not think their institutions would actually prevent parties, only prevent them from forming majorities.

Which brings me back to the Federalists’ first argument – that in a large republic interests would be too numerous and diverse to allow one party to form a legislative majority. This has clearly proven wrong – but the reason for this, crucially, is the electoral system. With single-seat districts, a party can win an assembly majority even in a democracy as large and diverse as India, the result of the mechanical effect of the system on seat shares. Under proportional representation, however, even very small countries rarely witness single-party legislative majorities. Whether or not increased numbers and diversity in the population also brings with it a lower chance of this occurring, in accordance with Madison’s logic, is unclear. What seems certain, however, is that under proportional representation, Congress and the system as a whole would function much more in line with the framers’ original predictions.

Greek constitutional and electoral reform update

Constitution Net has a valuable update on proposals for reforms to the constitution and electoral system of Greece.

Alexis Tsipras and his coalition have proposed

The possibility of direct election and the reinforcement of the competences of the President of the Republic, the proliferation of constitutional referendums, the introduction of the constructive vote of no-confidence, and steps towards the separation of the church and state.

These measures have stalled. However, electoral reform is still advancing.

The SYRIZA-ANEL coalition government did, however, submit a bill on the introduction of proportional representation in Greek election law, which was approved by the Greek parliament on 18 July 2016.

The main change appears to be the elimination of the bonus adjustment. Under the Greek constitution, the law would not take effect at the next election, but only at the one after that. Unless, that is, the government calls a referendum, a path that is apparently inconsistent with constitutional provisions.

 

Turkey: referendum post-mortem

As most are undoubtedly aware by now, the package of constitutional amendments proposed by Turkey’s government passed narrowly in the referendum two weeks ago.

I feel like my first post on the subject did not adequately cover the already deeply authoritarian background in which the referendum took place. Freedom of speech and the press have never been fully established in Turkey, and their suppression has worsened over the last decade. Moreover, since AKP rose to power in 2002, the public sector has been subjected to repeated purges, and not just since last year’s failed coup. The referendum campaign itself was strongly affected by this, and the legitimacy of the outcome should certainly be questioned. Claire Berlinski writes^[1]:

“The poll took place under a state of emergency. A third of the judiciary has been fired; some are still in jail. Three members of the Supreme Election Board are in prison, too. It’s possible that they’re mostly Gülenist coup-plotters as charged, and possible that jail is exactly where they ought to be, but this doesn’t obviate the point: Nothing like an independent judiciary buttressed this referendum. In some cases, authorities prevented “no” campaigners from holding rallies and events; those opposing the motion were tear-gassed (of course), and prohibited from carrying signs or assembling, or even beaten or shot at. The “yes” campaign received vastly more publicity; its supporters were given hundreds of hours on television stations. Opponents, almost none…

Hundreds of election observers were barred from doing their jobs, and at the last minute, the election board changed the standards required to prove accusations of ballot-box stuffing. Many instances of voter fraud appear to have been captured clearly on camera. [my link]”

It is clear that many of these democratic deficits have existed for years now. Not just in terms of democratic rights or process, but also the constitutional checks and balances. As Berlinski argues, the referendum “merely legally formalized the longstanding de facto state of affairs”. Dissolution power, extensive decree powers, emergency powers – all existed already. The only difference was that they were mostly vested in the government. Under semi-presidentialism, president’s Erdogan’s position was already secure^[2], but his power depended largely on being able to control the government.

In theory, under the semi-presidential system, AKP MPs (including the Prime Minister) could use their position to check the president’s power by scrutinizing the government and holding it to account. In practice, of course, they have little reason to do so. Therefore, the only situation in which the president (and the government) might be subject to meaningful check would be if the government ever lacked a majority in the Grand National Assembly – in extremis, this could have resulted in cohabitation, depriving Erdogan of control over the executive entirely.

My current theory is that AKP’s loss of its assembly majority in 2015a is what motivated Erdogan to seek a fully presidential system – completely eliminating the assembly’s confidence power over the government and vesting all executive power (plus decree powers) in the president and his agents. Now Erdogan will be secure in his position as president, as before, but his control over the executive will be secure too.

Therefore, despite this change to presidentialism (and earlier, semi-presidentialism), this democratic breakdown comes in the ‘parliamentarism’ column. Was it something inherent in parliamentarism that made, or allowed it to happen? Probably not. All else being equal, things could have easily followed much the same path.

What probably did make a difference, I think, is the electoral system – specifically the 10% threshold, which has a strong tendency to manufacture majorities^[3]. At the 2002 election, the AKP came to power with a single-party majority gained off a mere 34.3% of the vote. Admittedly, at every election since (except 2015a), the AKP received more than 46% of the vote, vote shares which would have granted it majorities even in most proportional systems. But I wonder whether, under a truly proportional system for the assembly^[4]:

1. Fewer voters would have voted strategically for AKP (at the 2007, 2011, and 2015b elections), instead voting for other parties which would have been viable as a result of the lower threshold; and/or
2. Lacking a majority from 2002 through 2007 would have prevented AKP from accruing an incumbency advantage (of any kind – democratic or not) at the 2007 election (assuming it would still have managed to form the government).

If either were true (and both seem likely to me), it is considerably more difficult to see how the party would have managed to undermine democracy and usurp power in the way it has. Without a majority, the other parties would have been able to check AKP’s consolidation of power, it would have been much more difficult for the party to change the constitution to introduce direct presidential elections (2007) or undermine the independence of the judiciary (2010), and it would have been difficult for it to force through its own choice of president in 2007. Even if the above propositions were not true, proportional representation and a multi-party legislature^[5] would undoubtedly have delayed the erosion.

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[1] I strongly recommend Berlinski’s account of the decline of Turkey’s democracy since 2002 (and the atrocious western response), Guilty Men: How Democracies Die.

[2] Meaning, he cannot be removed by majority vote in the assembly or by his party.

[3] Though I do not think this feature is inherently undemocratic, majoritarianism is problematic (especially in young democracies). If it is included in a system, it should always be balanced out by countervailing checks such as strong bicameralism and a well-entrenched constitution.

[4] At a minimum, this would mean a threshold reduction from the current 10% to 5%, ceteris paribus.

[5] Or a powerful upper house elected by proportional representation, especially with non-concurrent and/or staggered elections.

Italy’s referendum

In case anyone wants to discuss Italy’s constitutional referendum, space is hereby provided…

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.