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.

South Africa: No confidence vote looming?

The National Executive Committee (NEC) of the ruling African National Congress (ANC) in South Africa is attempting to get President Jacob Zuma to resign. Media coverage of this (such as a BBC story from 5 Feb.) too often implies that this is a “normal” presidency with a fixed term. However, despite the title, as far as executive survival in office is concerned, South Africa’s head of government is a prime minister. He can be removed by a vote of no confidence.

See the Constitution of South Africa, Article 102(2):

If the National Assembly, by a vote supported by a majority of its members, passes a motion of no confidence in the President, the President and the other members of the Cabinet and any Deputy Ministers must resign.

It could hardly be more clear than that. So if the ANC (which has far more than a majority of assembly seas) wants Zuma out, there’s no question how this will end. Zuma may have his own reasons to want to make the party go through the spectacle of a no-confidence vote, rather than step down “voluntarily”, but he does indeed serve at their pleasure.

It is also not as if is unusual in parliamentary systems for parties to replace their leader and the prime minister before an election. In Presidents, Parties, and Prime Ministers, David Samuels and I show that roughly a third of PMs in parliamentary democracies lose office by an intra-party procedure (rather than by losing a general election or leading a coalition that collapses). We did not note the timing of such removals relative to elections, but there is little doubt that many of the party-initiated removals take place closer to the next election than the preceding one. (In most such systems, the election can be called early on initiative of the new PM. The South African constitution also has a provision for early election, at the initiative of the assembly majority itself–Art. 50.)

Already this past December the ANC’s convention narrowly voted to elect Cyril Ramaphosa as head of the party (over Zuma’s ex-wife). He will lead the party in the campaign for the general election of 2019, whether or not Zuma is still president at the time.

A key difference in South Africa, compared to most other parliamentary systems, is that the prime minister is also the head of state–hence the title, President. In fact, other constitutional provisions in South Africa seem lifted from an actual presidential system (i.e., one in which the head of government is popularly elected for a fixed term). For instance, Article 89 has a provision for impeachment:

  1. The National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of ­

a. a serious violation of the Constitution or the law;

b. serious misconduct; or

c. inability to perform the functions of office.

It is hard to imagine what this is doing in a parliamentary constitution! If, like most parliamentary republics, the head of state (“President”) and the head of government (“Prime Minister”) were separate persons, the presence of both provisions quoted here would make sense. But what purpose does an impeachment clause, requiring a super majority, have in a constitution that lets the assembly remove the combined president/PM by a much simpler procedure?

The pressure is ramping up, the State of the Nation speech has been postponed, and the rumors are running rampant ahead of a special meeting of the NEC. The party leadership body could “recall” him in a manner similar to how Thabo Mbeki’s term ended early in 2008. However, that is a party procedure with no legal standing and thus would not be binding on the President.

Will he resign, or will the ANC need to invoke Art. 102?

 

Bargaining failures in presidential and parliamentary systems

This is just a quick collection of thoughts, mainly due to my having seen on Twitter evidence of misconceptions about how these things work (shocking, I know).

With the US in what is technically a funding gap, colloquially known as a shutdown, some folks have pointed out that parliamentary systems have their own variant of this problem. The reference is, of course, to prolonged situations with “no government” after an election.

This is a false analogy.

Lack of a new government while negotiations are ongoing is nothing at all like a furlough of public employees or the closing of services. Nothing at all!

Failure to form a new government is not common in parliamentary systems. Usually after an election it takes anywhere from days to a couple months (shorter than US administration transitions). There are rare cases when it’s longer, such as Germany right now or the Netherlands for part of 2017.

In the interim, things keep going along as they did before the bargaining impasse (or before the election). Services are delivered, employees are paid, etc. If there is an analogy to situations in the US where bargaining over a new budget fails, it would be to a continuing resolution. The difference is that, whereas a continuing resolution requires the House, Senate, and President to agree to continue current levels of funding, the equivalent in a parliamentary context is automatic.

So does that mean that “unelected bureaucracies” get to “do as they please” while the politicians are trying to sort out their differences? (I saw someone claim that!) No, not at all. That’s the sense in which it is like a continuing resolution. The bureaucrats go on doing what they do, until such time as they have new instructions. The new instructions come in the form of a new government being agreed, which goes about implementing its program (which is generally laid out in a public “coalition agreement”).

(Related: It is also worth noting that parliamentary systems typically have nothing like “lame duck” administrations and legislative sessions. A caretaker during the transitional period, before a new government is agreed,  can’t take new initiatives.)

If the parties do not agree to form a new government, it means there is no majority in parliament that prefers some agreed new program over the status quo (the “continuing” part). If the process is protracted–or it becomes clear early that there is not such a majority–there usually can be recourse to an early election to let the voters resolve the deadlock. (If polls suggest the result would be the same, they’ll just keep on continuing till some combination of parties finds a new program it prefers, or the polling shifts enough to suggest the bargaining context would change after an election.)

Let’s go back to the point on bureaucratic agencies. Bureaucratic oversight is a different matter. US bureaucracy is indeed relatively more constrained than its counterparts in most parliamentary systems, but that does not mean that the parliamentary situation–with or without a bargaining impasse–is in any sense one of bureaucrats being powerful and unconstrained.

In many (not all!) parliamentary systems, civil servants within bureaucratic agencies can be given discretion to do their jobs precisely because it’s easier for politicians to rein them in, if necessary. There is only one political principal (again, not always), which we can think of as the parliamentary majority, although in a more immediate sense it is the cabinet. And that means either the caretaker cabinet that continues in the absence of a new government, or the electorally legitimated new government that is formed.

In the US each principal (executive, House, Senate) has to worry that the bureaucracy might follow the other. Plus it is generally harder to change law (three veto gates). So there are both incentive and capacity to bind the bureaucracy ex ante. Whether one form of bureaucratic oversight is “better” isn’t clear. It gets complicated. The main point is that the structure of agencies and the process of oversight and constraint “mirror” the wider institutional set-up and distribution of political power.

Does all this mean that parliamentary government is clearly superior because it is inherent to presidentialism that bargaining failures over spending and policy occur, with no way to resolve them? That is, because there’s no way to get a new government or go to elections? Well, that’s not so clear! A funding gap or shutdown is not actually inherent to presidentialism.

There aren’t any other presidential democracies that I know of where a funding gap could happen. Most such constitutions have either an automatic equivalent of a continuing resolution, or a reversionary point that favors the executive’s proposal.

I would tend to agree that there are lots of reasons to prefer multiparty parliamentary bargaining over the inter-branch kind the US has, or other (pure) presidential systems have. But there are lots of other models, and even the other presidential ones do not have this recurring problem, due to differences in institutional design and budgetary rules.

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.

Poland’s protests–and institutions

Protests in Poland have been making international news. The object of the protests is the government’s plans to undermine the independence of the judiciary. The case illustrates several important points about how political institutions affect policy (and can have potential international repercussions). The escalation of the crisis over these plans in recent days makes the decision some months ago to lead with Poland’s 2015 elections and their aftermath in the forthcoming Votes from Seats look like a good one.

We (Rein Taagepera and I) use the case to demonstrate how seemingly small institutional details can tip outcomes in favor of a party with a strong agenda that might undermine democracy itself. (Yes, the very first example mentioned in the book is the US presidential election of 2016.)

The background is that the Polish ruling party, Law and Justice (PiS) has a majority of seats in the first chamber of the assembly (the Sejm). PiS also holds the presidency. It has a manufactured majority, despite the use of a proportional representation system. In fact, the party won only 37.6% of the votes. This would place the assembly majority on the short list of lowest vote percentages ever turned into a majority by a “proportional” electoral system. Moreover, it was a “honeymoon” election–the assembly was elected about six months after the president.

The manufactured majority was possible due to several factors. One is the use of D’Hondt divisors, which tend to boost the largest party’s overrepresentation, especially when it has a strong lead in votes over the runner up (in this case, Citizen’s Platform, with 24.1%). It is also due to the legal thresholds: 5% for a party and 8% for a pre-electoral alliance. This resulted in substantial wasted votes, particularly with the Democratic Left running as an alliance and getting 7.6% of the vote. Had it become a “party” it would have been represented, and the PiS surely would not have won a majority of seats. Or, obviously, had the alliance won just over 0.4% more votes, it would have won seats.

However, the 37.6% itself did not come in a vacuum. As noted, this was a honeymoon election: it was six months after the election of the president to a five year term. Based on a formula (purely empirical, but based on theory) in Votes from Seats, we expect an election with 10% of the presidential inter-electoral period elapsed to result in a modest boost for the newly elected president’s party. The formula (shown in an earlier post on the French 2017 elections) suggests what we can expect for the party’s assembly votes, expressed as a ratio to the president’s own votes (in the first round if a runoff system). We call that ratio the “presidential ratio” or RP. For elapsed time of 10%, we expect RP=1.13. Given that the president, Andrzej Duda, had earned 24.8% of the vote, we’d expect the party to get 39.3%. This is barely over what it actually got (37.6%). So, yes, honeymoon elections matter. (By comparison, PiS had 29.9% in the previous assembly election, in 2011.)

It was not even a sure thing that it would be the PiS that would benefit from the honeymoon boost. First it had to win the runoff, and it did so quite narrowly (51.8% to 48.4%).

So, the current crisis could have been averted, most likely, if any one of the following had been true, thereby preventing the PiS majority government:

(1) Duda had lost the runoff;

(2) The assembly election had not been scheduled so soon after the presidential;

(3) The electoral formula was some common proportional method other than D’Hondt;

(4) There was not a high threshold for alliances, or the Left had made itself into one party (or gotten just a small increase in its votes).

So, yes, institutions do matter!

And institutions may yet matter one other way to this story, and in a way relevant to a couple of my earlier co-authored books. The president has a veto that takes 3/5 to override, and Duda has indicated opposition to his own party’s proposals on the judiciary.  He may veto it. Presidents, after all, may help their parties gain power, but they are not beholden to them once in office. Under Poland’s semi-presidential system, the president and prime minister may disagree, even when from the same party. So the story may have at least one other act yet to come.

More parliamentarism in Central Asia

The Venice Commission has published an generally positive opinion on the Georgian government’s proposal for constitutional reforms. The reforms were proposed after the governing Georgian Dream party won 115 seats in the 150 member legislature in elections, slightly more than the three-quarters majority required to amend the document.

Specifically, the amendments propose repealing direct elections to the Presidency, replacing it with election by a 300-member electoral college composed of members of the national legislature and local councillors. In addition, most of the powers of the Presidency are stripped. This creates a parliamentary system, with a Prime Minister only removable through a constructive vote of no confidence.

The previously unicameral legislature will be replaced, nominally, with a bicameral legislature, comprised of a Senate and a Chamber of Deputies. However, the Senate specifically includes members elected from Abkhazia, currently under the control of a separatist government, and is only to be created after “appropriate conditions have been created throughout the territory of Georgia”. This would seem to imply that the chamber can only be created when Abkhazia returns to government control, and the Venice Commission’s report confirms that they understand its creation will be delayed.

In addition, there are changes to the electoral law. The existing mixed-member majoritarian system with a roughly even split between single-member constituencies elected using the two-round system and party-list PR with a 5% threshold will be replaced with a system of list PR only, still with a 5% threshold. While there is little elaboration, the document does specify that seats shall be allocated by the Hare quota, but instead of allocating seats by largest remainders, all remaining seats are allocated to the largest party (a method used in Greece in one of their endless electoral system changes).

The change bears some resemblance to the relatively recent amendments in Armenia. Like Georgia, a semi-presidential system with a legislature elected with a mixed-member system transitioned into a parliamentary one with a legislature elected under a list system with a bonus (though Armenia’s bonus is somewhat more elaborate, and guarantees a majority government in one form or another). While drawing broad conclusions off two examples is obviously bound to be, these two results may suggest that there is a shift away from politics centred around an all-powerful directly elected presidency, and towards more party-based politics.

A more tenuous argument along these lines could be made in relation to the electoral system. In both cases (along with Kyrgyzstan, which actually moved from single-member districts to MMM to party list), a system in which individual candidates were an important part of legislative elections (especially in the years shortly after independence) has been replaced by a system in which parties are the dominant actors. On the other hand, the pendulum has moved the other way elsewhere in the region, in Russia and the Ukraine.

The President, though endorsed by the Georgian Dream party at the 2013 election, does not appear to have been overly enthusiastic about the landslide victory. The Venice Commission did express some concerns about the power of a government with an overwhelming parliamentary majority, but that seems less likely in Georgia than in Armenia, owing to the more proportional system.