Attorneys General–institutions matter

Now that indictments have been announced against the (outgoing–dare I say?) Prime Minister of Israel, it is worth reviewing the institutional basis of the office of Attorney General in Israel.

I am seeing some casual takes on Twitter about why the US doesn’t have an Attorney General who takes a tougher line against law-breaking at the top of government. But the offices could hardly be more different. The US Attorney General is a cabinet appointee. The President picks who holds that position, subject only to Senate majority confirmation. Of course, Trump has had a highly compliant Senate majority throughout his presidency.

Trump could not have had occupants of the office that have been as awful for the rule of law as they have been, if the office were structured like Israel’s. So it is worth sketching how the process of appointing the Israeli Attorney General works. My source for this is Aviad Bakshi, Legal Advisers and the Government: Analysis and Recommendations, Kohelet Policy Forum, Policy Paper No. 10, February 2016.

a. There shall be formed a permanent selection committee that shall screen suitable candidates, one of which shall be appointed to the position by the government. The term of each committee shall be four years. 

b. The chairman shall be a retired justice of the Supreme Court who shall be appointed by the President (Chief Justice) of the Supreme Court upon the approval of the Minister of Justice, and the other members shall be: a retired Minister of Justice or retired Attorney General appointed by the government; a Knesset Member elected by the Constitution, Law and Justice Committee of the Knesset; a scholar elected by a forum comprising deans of law schools; an attorney elected by the Israel Bar Association. 

c. The AGI term duration shall be six years, with no extension, irrespective of the term of the government. 

d. The government may remove the AGI from his position due to specific reasons.… These reasons include, in addition to personal circumstances of the AGI, disagreements between the AGI and the government that prevent efficient cooperation. In such an event the selection committee shall convene to discuss the subject and shall submit its opinion to the government, in writing. However, the opinion of the committee is not binding, and the government may decide to remove the AGI contrary to the recommendation of the committee. The AGI shall have the right to a hearing before the government and before the committee. 

All of this makes for a reasonably independent office. Even if appointment and dismissal are still in the hands of the government, the screening and term provisions make it an arms-length relationship. The occupant of the post is obviously not a cabinet minister, as in the US, and is not a direct appointee of the head of government or the cabinet.

Worlds apart, institutionally.

And this is even before we get into the parliamentary vs. presidential distinction. A president is–for better or worse–meant to be hard to indict, let alone remove. That’s why the main tool against a potentially criminal executive in the US and many other presidential systems is lodged in the congress, through impeachment, and not in a state attorney. A prime minister in a parliamentary system, on the other hand, by definition has no presumption of a fixed term.

The normal way to get rid of a PM is, of course, a vote of no-confidence or the PM’s own party or coalition partners withdrawing support. But that’s the point–they are constitutionally not protected when the political winds, let alone the legals ones, turn against them.

In the broader institutional context of a parliamentary system, it is presumably much easier to take the step of also designing an independent Attorney General’s office that has the ability to indict a sitting head of government.

On the other hand, there is still no obvious way to remove Netanyahu from office any time soon, unless his own party rebels against him. Even though Trump’s own party will probably block the super-majority in the Senate needed to remove him from office*, the resolution of the case against Trump might happen considerably sooner than any resolution of Netanyahu’s case. Barring a rebellion by his current allies, Netanyahu may remain PM fore another 4-5 months, through a now-likely third election (since last April) and the post-election coalition bargaining process.

* Assuming the House majority impeaches him, which now looks all but inevitable.

UK MPs “plot” to do their job

As the expected “meaningful vote” on the EU-UK withdrawal agreement looms, and the legally mandated Brexit day (29 March) draws closer, it is worth thinking clearly about what the relationship is between the House of Commons and the executive in the UK system. As it happens, this is the week in my Ph.D. seminar on party and legislative organization in which we read a couple of items specifically about this relationship. Understanding the relationship is important if for no other reason than to inoculate oneself against headlines like this one in the Sunday Times yesterday:

Revealed: Commons plot to seize control from Theresa May ahead of Brexit vote

The print version even had a headline about a “coup”. It is bad enough when the newspapers and talking heads refer to a vote within a party on the continuance (or not) of its leader as a “coup”. It is just that much worse when the possibility of elected representatives taking back power from the executive is so branded.

To be clear, when a collective body to whom a leader (or other collective body) is responsible seeks to replace or diminish the authority of the latter, it is not a coup.

The specific potential actions that got the Times and “one senior figure” quoted therein so worked up is summarized as:

At least two groups of rebel MPs are plotting to change Commons rules so motions proposed by backbenchers take precedence over government business, upending the centuries-old relationship between executive and legislature.

Let’s be clear about something, shall we? The executive in a parliamentary democracy is an agent of the assembly, not vice versa. Thus if a majority of the House of Commons seeks to clip the wings of its agent, this is a principal acting as it should.

It is a separate question as to whether existing statutory law permits a change in control over the order of business, or whether statute first would have to be changed. That is, parliament may already have delegated away some of its rights to make day-to-day changes in business. If that is the case, these “rebel MPs” may be out of luck in the short term, and given the press of time (the Brexit deadline), the short term is rather important. Yet clearly they would have the right, under the structure of the political system, to make an effort to take back powers currently given to the executive.

A second critical point here is that the claim of a “centuries-old relationship” is just plain wrong. On this point, it is indeed helpful that I have just re-read Gary W. Cox’s masterful The Efficient Secret (1987), wherein the author traces exactly the process by which backbenchers relinquished their capacity for legislative initiative (and the emergence of an electoral connection between voters and the executive). The timeline provided by Cox makes clear that there was no single watershed date on which parliamentary power of initiative was abolished. More to the point of the preceding quote from the Times, Cox shows that this process of delegation took place in the middle of the 19th century. Thus we have something less that a “centuries-old” precedent, even if it is undoubtedly true that the executive generally has dominated the agenda of the House for quite a long time.

Cox also makes clear that this relinquishing of initiative did not take place without a fight–MPs regularly resisted efforts to centralize agenda power, but ultimately gave in because it served their own collective interests.

Of course, if a delegation of authority ceases at some moment to serve the collective interests of parliament, what has been delegated can be taken back. At least in principle, as again, if it requires statutory change rather than a procedural motion, it is somewhat more difficult to pull off.

Nonetheless, the governing Conservative Party (which is in a minority in the House) is evidently worried. Today in the House proceedings, there was a series of Points of Order, including several raised by Conservative MPs about scenarios like those sketched by the Times. The exchange is worth watching, at least for those of us interested in parliamentary procedure and executive-legisaltive relations. The exchanges run just over 16 minutes, from around 18:11 (when Prime Minister May answers her last question about her earlier statement to the House) to 18:27 (the last response by the Speaker to the various Points or Order).

The Speaker indicates in one of his responses (to Charlie Elphicke) that it is indeed his understanding that a “statutory instrument” currently can be raised only by a Minister of the Crown. Nonetheless, the next MP to raise a Point of Order (Nigel Huddleston) asks the Speaker to clarify whether MPs are indeed equal, with full access to information about any changes of procedure. (This is a pretty remarkable question!) Then in response to the final Point of Order of the exchange (Matt Warman, who says his constituents have raised doubts about the role of the Speaker), the Speaker says he will defend the rights of the House against “agents of the executive branch”.

Today’s discussion comes against a backdrop of a claim by hardline Brexiteer Tories that the Speaker upended some precedent on procedures in December and again just last week. The issues in question concern what the House can do if, as widely expected, the meaningful vote results in parliamentary defeat of the withdrawal agreement.

The upshot of all this is that the House is not quite as weak as it is often portrayed, and it may be prepared to reassert itself. As Ed Miliband stated in an intervention in today’s debates, the executive works on behalf of the parliament. It may be something that gets forgotten at times, especially by journalists and taking heads. But it is a basic fact of parliamentary democracy.

It is not only journalists and taking heads who forget about the importance of parliament. It is also academics, as another book on my seminar reading list for this week notes. Meg Russel and Daniel Gover’s Legislation at Westminster (2017) offers a much welcome corrective to the mainstream understanding. They push against the “parliamentary decline thesis” and offer a rich analysis, both quantitative and qualitative, of how parliament (both chambers) actually has substantial influence on legislative output. Some of this influence is due to relatively recent changes in parliamentary organization (e.g., changes in the 1970s to institutionalize the select committee system). Again, this serves as a reminder that “precedent” that gives a dominant role to the executive comes with all sorts of caveats, and is subject to occasional rebalancing. In any case, it is not a “centuries-old” precedent, but rather more recent. And it could be that Brexit is showing that it is rather fragile, too.

We may be witnessing a reassertion by the House of its rightful role in determining what course of action its agent, the executive, shall follow.

Spill time?

So, who is the PM of Australia at the moment? It’s getting interesting. Again.

Second and third questions: What is the origin of the term, spill, to refer to an intra-party leadership challenge? Is Australia the only country where this term is used?

And for some comparative data context, see this planting from 2010.

There also has been an ongoing conversation about the current case at a planting from 2015. This topic of spills really overflows down under.

Turkey, 2018: Unusual alliance behavior

On 24 June, Turkey has concurrent presidential and assembly elections. These will usher in the new constitution, under which Turkey becomes a presidential system. (The current system is premier-presidential, having changed from parliamentary with the adoption of direct presidential elections.)

The election was called earlier than necessary in an attempt by the president, Recep Tayyip Erdogan, to catch the opposition unprepared. However, unexpectedly, several opposition parties have assembled joint lists an alliance (see clarification below) to contest the assembly elections. Polling suggests that they could win a majority.

The coalition behavior of the opposition is unusual in that it features parties running in a pre-election coalition for assembly elections while running separately for a concurrent presidential election. I know of few cases of major parties behaving this way. It makes sense, however, in that Turkey’s 10% nationwide threshold for assembly seats makes for potentially high disproportionality (so much so that I questioned whether it was “democratic” several years before the crackdown that followed the attempted coup). On the other hand, the presidency is elected by two-round majority, meaning first-round divisions do not necessarily prevent a group of parties eventually getting one of their own elected. (See Chile 2005 for another example of such unusual alliance behavior.; also Taiwan 2012.)

The Peoples Democratic Party (HDP), which counts on Kurdish support, is running separately. It cleared the threshold in both elections of 2015 (a, b), and may do so again.

______________

Zeynep Somer-Topcu clarifies, regarding the assembly alliances:

Ballot had each party and then a larger box for the alliance. You could just stamp anywhere within the box for alliance (if no party preference). Threshold applies to alliance but each party’s MPs enter based on their parties’ vote shares once alliance passes threshold.

(via Twitter, presented here with her OK)

I think it is quite unusual for alliances to work this way, allowing vote pooling across separate lists to help drag smaller parties over a threshold.

Italy “coalition of populists” back on

If Spain this week has shown parliamentary democracy working at its “constructive” best, what can we say about Italy? After it seemed earlier in the week as if an interim “non-political” government would be formed to lead the country until early elections, now the seemingly aborted coalition of “populist” parties is back on.

The president has approved Prime Minister Giuseppe Conte and a cabinet consisting of ministers selected by the Lega and M5s parties.

Aside from what a topsy-turvy week it was, and from the perils of this combination of parties governing, a notable feature of the government the Prime Minister is not actually the head of either party in the coalition. (Each party head will be a Deputy PM and hold other portfolios as well.) I will have to remember to insert the word “usually” into my lectures when I say that in a parliamentary democracy, the PM is the head of one of the parties in parliament. Of course, this is not totally unprecedented in parliamentary democracies, but it is indeed not usual.

I invite the creation of a list of PMs who are not a party head in parliamentary democracies, excluding cases of caretakers or “technical” governments appointed for an interim period (like the one Italy seemed earlier in the week to be getting). Manmohan Singh in a Congress-led government of India in the recent past comes immediately to mind.

Spain, constructively

Earlier today, the Spanish parliament (specifically, the first chamber, known as the Congress) voted to replace Mariano Rajoy (Popular Party) as prime minister with Pedro Sánchez (Socialist). This is the first case of a “constructive” vote of no confidence under Spain’s constitution.

The constructive vote requires an opposition motion proposing removal of the prime minister and cabinet to state who the new prime minister would be. If the motion receives a majority in favor, the proposed replacement takes office, without need of a further investiture vote. Germany and a few other countries have similar provisions.

The vote was 180-169 in the 350-seat chamber. The farther-left Podemos and several regional parties voted in favor, while the Ciudadanos voted with the Rajoy government.

It is remarkable in that the Socialists won just 24% of the seats in the most recent (2016) election. Thus the new government will be a rather extreme minority government. (I am assuming no coalition partners will be brought into the cabinet.)

This is the system working exactly as intended. In fact, I would call this an example of parliamentary government at its best. The now-ousted government was itself a minority government, and it received only a plurality of members (170) voting in favor of its investiture when it was formed (thanks to 68 deputies abstaining). The replacement has now received, as required by the constitution, a majority. This combination of provisions makes it relatively easy* to form a minority government when the bargaining situation in parliament is difficult, as it was following the 2016 election. Yet such a government, once formed, will be quite stable because it is more difficult to vote it out than if no-confidence votes required only a negative vote against the incumbent (with its replacement to be subject to subsequent bargaining).

The new government surely will not have an easy time passing policy. It is not required to pass a new budget, nor does failure to pass a budget necessarily require a government to resign in Spain–another stability-enhancing mechanism. It seems likely that an election will come earlier than the end of a full term (2020), however. In the meantime, it is probably stable in the sense of not likely to be removed by parliament, given that such a vote would require a new majority to prefer someone else as leader.

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* “Easy” here does not mean it might not take quite some time, just that it is not required to get parties comprising a majority to give the government an affirmative mandate. In fact, Rajoy’s minority government was approved just over four months after the June, 2016, election.

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.