The Polish president’s veto

Polish President Andrzej Duda has exercised his veto against two of the government’s bills to change the appointment of judges. Media accounts are treating this action as a “surprise”, but it really should not be seen as such. Both the government (premier and cabinet) and the president (directly elected) are of the same party, Law and Justice (PiS), yet the institutional dynamics make the action unsurprising.

First of all, such a possibility was signaled by the president on 18 July. Secondly, the theory of presidentialized parties (Samuels and Shugart, 2010) should make presidential action against their own governing party’s controversial decisions the default expectation. That is, the institutions “predict” such actions, and it is politics that sometimes intervenes and prevents the president from acting on his or her independent mandate. In this case, the institutions prevailed.

Duda is not the leader of the party in the sense of who holds the formal organizational title; that would be Jarosław Kaczyński, a former premier. But that fact only makes today’s veto by the Polish president an even better case for demonstrating the power of the argument. The fundamental point of my book with Samuels is that parties face a “moral hazard” problem under presidentailism, due to separate survival (fixed terms). Once a presidential candidate has won the election (separate origin), he is no longer an agent of the party. He now has (potential) incentive to respond to his wider constituency and head-of-state obligations, even when those might conflict with the party that nominated him. He is secure in his fixed term against efforts by the party to restrain him, unlike a prime minister (who, by definition, can be dismissed by the assembly majority or by the party).

One manifestation of presidentialization of parties can be the reversal of the principal-agent relationship, such that the president redirects his own party, making it his agent, rather than the other way around. But–we point out in the book–this is only one possibility. Another is that the president and the party face conflict–an intraparty separation of powers.

The latter seems to be the case here. I heard a BBC interview earlier this morning with an official of the PiS party. He slammed the president for going against the party’s manifesto, and said that the government (which is a single party, with a majority) should be allowed to implement its promises, including judicial reform. The statement overlooks a key institutional fact: Poland is not parliamentary, but semi-presidential. The president is freed from the manifesto by virtue of his separation of origin and survival–that is, his independent election and fixed term.

Duda received significantly more votes in winning the presidency (in a two-round election) than the PiS earned in winning its parliamentary majority. The governing party’s majority is manufactured by the electoral system (details in my earlier entry), whereas Duda’s was earned in the two-candidate runoff. In addition to the electoral system, the PiS surely owes its being in the position to gain that assembly majority from Duda–or, specifically to its own election in the “honeymoon” of Duda (again, see the earlier entry for details).

I do not know if the issue of judicial reform was raised in his own election campaign, but the wider point is that it hardly matters. He has the institutional capacity to act independently, and he did. He has the constitutional power of veto, and he exercised it.

For better or worse, this is how presidentialism (including semi-) is supposed to work. As a head of state (who must deal with other governments unhappy with Polish plans) and with a wider popular constituency (with many Poles in the streets over this issue), and protected by the fixed term, the president can act against the will of the government and its own parliamentary majority.

The veto takes a three-fifths vote of parliament to override, and the PiS is far short of this threshold. Unless it can bring other parties around to this bill, the president’s veto will stand. What this might mean for Duda and his relationship with his party is not for me to predict. But, based on the theory of presidentialized parties, what has happened today is far from surprising; it is predictable.

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Turkey referendum: Latin Americanization on the road to autocracy

Turkey will go to the polls on April 16th, to vote on a set of constitutional amendments which would change the country’s system of government to presidentialism. Though it seems that in Turkey, the current system is generally referred to as ‘parliamentary’, Turkey has actually been semi-presidential (specifically, premier-presidential) since the country’s first direct presidential election was held in 2014.

The amendments passed the three-fifths legislative majority necessary to put them to referendum with support from the Nationalist Movement Party (MHP). Introducing presidentialism has long been president Erdogan’s express wish. The idea has apparently been around in Turkish politics for a while before it was adopted by the Erdogan and his party, AKP. Full presidentialism seems to have been ‘plan A’, so introducing semi-presidentialism (passed in 2007, entering operation in 2014) was perhaps only ever meant as a way-station toward this goal.

The main details of the amendments are as follows:

  1. Establishing presidentialism:

As stated above the president is already elected directly, specifically using a two-round system. The president is to become both head of state and head of government, with the power to appoint and fire ministers and the vice president. There is no requirement for the Grand National Assembly to confirm appointments. Executive office is incompatible with assembly membership. Interpolation of ministers is to be removed from the constitution, leaving MPs with written questions.

  1. Legislative powers:

The president is to have veto power over legislation, subject to absolute majority override in the assembly. He is to have the power to issue decrees in “matters concerning the executive power” and regulations “to provide for the enforcement of the laws, provided they are not contrary to them”. These cannot affect fundamental rights, except under a state of emergency; an emergency can be declared by the president without confirmation by the assembly, but the latter must be notified immediately and can shorten or end it at any time. These decree powers are essentially the same as those currently held by the cabinet. The president would also dominate the budgetary process: the complete budget is to be proposed by the president and put to a straight up-or-down vote in the assembly without possibility of amendment, with failure to adopt a budget within a timeframe leading to continuation of previous arrangements.

  1. Term lengths and dissolution power:

The assembly’s term in extended to five years (from the current four) and legislative and presidential elections are to be held concurrently. If the presidency becomes vacant, fresh presidential elections must be held. If parliamentary elections are due within less than a year, then they too are held on the same day as early presidential elections; if the parliament has over a year left before its term expires, the newly elected president serves until the end of the parliamentary term, after which presidential and parliamentary election cycles are held concurrently again.

The president is to be limited to being elected twice, but there are some exceptions, the first of which is that a mid-term vacancy-filling election doesn’t count towards the total. The current presidential power to dissolve the assembly is retained, in addition to a new clause which enables the assembly to dissolve itself, by three-fifths majority vote – in either case, fresh elections are held for both president and assembly, who serve new five-year terms. Early concurrent elections triggered by the assembly can always be contested by the president.

  1. Impeachment

The president or any member of the executive is indicted by two-thirds majority in the assembly (upon which many powers, including dissolution, are suspended), which takes the decision on removal to the Supreme Court. A president which has thus been removed is ineligible for re-election.

  1. Judiciary

The acts of the president, previously protected, are now to be subject to judicial review. The structure of the judiciary will not change much – with the role of the president in appointments remaining quite strong. Of the Council of Judges and Prosecutors, the president is to appoint 6 and the assembly is to appoint 7 (4 of whom must be judges from the highest courts) – for renewable four-year terms. The Council appoints most (two-thirds to three-quarters) of the judges of each of the highest courts, with the rest being appointed by the president directly.

According to the BBC, Erdogan claims that the new system will ‘resemble those in France and the US’. There is clearly little truth to this. First of all, France is semi-presidential, specifically the premier-presidential variant. This means that the prime minister, while appointed by the president, can formally only be removed by the assembly – in other words, what Turkey has now. These amendments would outright abolish the prime ministership and parliamentary responsibility, granting the president (already in a position to play a dominant role in the country’s government) absolute control over the executive branch.

Does that mean that the new system will essentially be the same as the US? Not really. Presidential or not, the proposed system includes numerous features bearing little resemblance the American model of checks and balances. The amendments would invest the Turkish president with extensive constitutional decree powers, allow him to all but dictate the budget, but on the other hand leave him with a substantially weaker veto than the US. The absence of assembly confirmation vote for ministers, not to mention presidential dissolution power, are also alien to the US constitution. Overall, the proposed institutional framework is to bear far greater resemblance to past and present constitutions of Latin America, where assembly confirmation is non-existent, emergency and decree powers are common, while some of the other institutions in question have featured occasionally, e.g. presidential dissolution power (Ecuador, formerly Chile and Argentina) and weaker veto (Brazil, formerly Venezuela).

In any case, the proposed amendments represent an immense consolidation of power in the hands of president Erdogan. It would probably allow him to serve beyond the supposed limit of two five-year terms. Judicial appointments involve a somewhat greater degree of presidential influence over a judiciary that has already lost a great deal of independence in recent years. Judicial review, needless to say, will not amount to much. Furthermore, the requirement for judicial ratification may leave impeachment ultimately toothless even in the unlikely event that the requisite majority were achieved in the assembly. Meanwhile, the weak veto and the assembly’s own (weaker) power to call early elections is unlikely to provide much balance in practice. Though dissolution would entail new elections for both president and assembly, a president armed with the power to dissolve the assembly still seems more likely to have the upper hand in the exceptional situation his party ever lacks a majority there – exceptional because of the country’s majoritarian system, and because the president’s very power of calling early elections enables him to do so opportunistically, as Erdogan did in 2015[1].

The Venice Commission’s report characterises the proposed changes as “a dangerous step backwards” for democracy in Turkey. It certainly feels hard to disagree.


[1] One might add (as the Venice Commission does) the fact that elections will be concurrent, which is certainly true, though, as we have recently seen, it’s certainly possible (though still uncommon) for countries to elect a president in the second round that was not of the legislative majority elected concurrently with the first round (e.g. Argentina, Peru), while more generally, two-round systems cause vote fragmentation in the first round. If elections in Turkey remain competitive, it may be that the two round system will, in the long run, cause fragmentation which will spread to the assembly. Perhaps more likely is that once in a while, the concurrent elections could result in divided government as in the first scenario I mention here. A situation like that might provoke Linzian scenarios, but is probably most likely to simply result in early elections at some point, whose outcome would most likely be a reversion to the regular unified control.

Zambia Constitutional amendments

Last week, Zambia enacted a package of amendments to the constitution that has been years in the making.

Among the amendments are a number of significant changes to the presidency. In the last decade, two early presidential elections (2008 and 2015) were instigated by the incumbent’s death. In the wake of the cost and difficulty of organising these elections, there were calls for the institution of a vice-presidency elected as the president’s running mate and replacing the vice president on a permanent basis. This change was included in the amendments, replacing the previous position of vice president which was appointed by the President and only substituted him on an interim basis.

Another change was to the president’s dissolution power. Under the previous provisions, the President was able to call an early general election at any time, which would include both presidential and legislative elections. The new provisions stipulates that such a dissolution can only be effected “if the Executive cannot effectively govern the Republic due to the failure of the National Assembly to objectively and reasonably carry out its legislative function”, and must be reviewed by the Constitutional Court, which determines whether or not that is the case. This seems to me as rather ill-advised; whether or not parliament fulfils its role ‘objectively’ or ‘reasonably’, and whether or not the President is able to ‘govern effectively’, are fundamentally political questions, and getting the courts involved in that could seriously undermine their neutrality and independence.

Additionally, in response to widespread calls for such a change, the electoral system for president has been changed from plurality to two-round majority. The original draft presented to parliament several years ago also envisioned the adoption of Mixed-Member Proportional for legislative elections, but this was removed from the bill by the National Assembly.

Lastly, in what seems to be a growing trend in new or heavily-amended constitutions, the amendments introduce federalism (seeing as they include lists dividing up competences among national, provincial and local government which are entrenched along with the rest of the constitution), but call it a system of ‘devolved’ governance.

Ukraine deal

The deal signed earlier today in Ukraine calls for a return to the constitution instituted after the Orange Revolution protests (but later reversed). Those provisions significantly weakened the presidency–mainly by giving the president essentially no discretion in the choice of a prime minister, who was defined as the candidate of the legislative majority. On the other hand, the president under that constitution still retained control over key ministries, such as interior and defense, as well as a veto requiring two thirds to override. So the protesters are right to be skeptical, even if this is a big concession by President Yanukovych.

The agreement also mentions reforms to electoral laws, but does not clearly address the electoral system itself, which is obviously critical inasmuch as it determines how votes are translated into seats in empowering the very legislative majority that would appoint the PM. And, as I noted before, the current system is highly disproportional and personalistic, and these features allowed the pro-Yanukovych bloc to win a majority, counting pro-Yanukovych “independents” (bearing no party label), despite the president’s Party of Regions having barely a quarter of the votes. Of course, with the renewed mobilization of the opposition, it is less clear who would benefit from the current system’s disproportionality, but the opposition would seem to have a clear interest in a return to the party-list system used in 2006 and 2007. And that system’s proportionality would presumably offer the pro-Yanukovych forces a hedge against possible voter retributions whenever the new legislative election is held.

The agreement also only specifically refers to early presidential elections.

Obviously a situation still in flux.

More on American columnists discovering comparative politics

At Think Progress, Ian Millhiser offers another in the recent series of examples of American columnists noticing comparative politics. This is good!

Millhiser suggests we look to Chile’s current presidential democracy for models of how to prevent government shutdowns. As he notes, correctly, Chile’s president has exclusive power under the country’s constitution to propose legislation in areas relating to finance and budget, along with “urgency” provisions and restrictions on congressional authority to change executive proposals.

In other words, a presidential (separation-of-powers) model does not necessarily have to leave the executive dependent on legislative initiative to pass a budget or other financial matters.

While the recognition of other models is good, I am afraid I have to stop short of advocating the Chilean solution. If I decried the possible “Latin Americanization” of US presidentialism during the previous administration, I hardly can advocate it now.

Italian presidential selection and PD split

The Italian electoral college (made up of members of parliament and regional representatives) selected Giorgio Napolitano for a second term in the “mostly ceremonial” post of president.

Via presseurop.eu (and originally from Corriera della Sera):

Napolitano was elected on April 20 with the votes of the Democratic Party (PD), Silvio Berlusconi’s People of Freedom Party and Mario Monti’s Civic Choice. Despite having earlier ruled out the possibility of a second term, Napolitano changed his mind after Franco Marini and Romano Prodi failed to get elected due to a dramatic split in the PD that prompted its head, Pier Luigi Bersani, and the party’s entire leadership to resign.

One of the faculties that makes the Italian presidency potentially more than ceremonial is the authority to dissolve parliament when a government can’t be formed. (This power does not exist in the final phase of a president’s term, but becomes active again once Napolitano starts his second term today.)

Does this mean a grand coalition (i.e. a Berlusconi-backed government)? Or will there be a new elections (leading to who knows what?)?

Latvia’s president wants more power

The Hurriyet Daily News reports that Latvian President Valdis Zatlers has called for a constitutional amendment permitting him to dissolve Parliament without the public’s consent at referendum. According to the article, he also has called for direct presidential elections.

Further, he has asked for the power to unilaterally dismiss the chief budget and central bank officers. Zalter’s stated reason for this is to ‘depoliticize’ these appointments.

There is no mention of any proposed change to presidential survivability. Will the dissolution of Parliament also trigger a presidential election, for example?

As is no surprise to F&V readers, the net effect of the above would be the diminution of arguably wise constraints on executive power.

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Image of Latvian Saiemaa added by MSS