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Bogdan Dima – The Romanian Presidency and the Constitutional Court

This is a guest post by Dr Bogdan Dima, Lecturer in the Faculty of Law, University of Bucharest

Note: The first two sections of this study are part of a larger paper presented at the 5th Semi- presidentialism and Democracy International Conference: Constitutional Development: A Dialogue between Asia and Europe, held on May 17th, 2014, in Kaohsiung, Taiwan. The paper will be published in a volume at Wunan Publishing House, Taiwan. The full text was published in Manuel Gutan, Bianca Selejan Gutan (eds.), Judicial Culture and Europeanization in Contemporary Democracies (Bucharest: Hamangiu, 2014).

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Shaping the Role of the President: The Influence of the Romanian Constitutional Court’s Jurisprudence

1. The primary intentions of the Romanian constitutional legislator

Caught between the fears of the past and the fears of an unknown process of democratization, the emergent political forces of the new post-communist regime achieved in the end a hard negotiated compromise: a President with a relevant symbolic role, but with diminished formal powers. It was a negotiated compromise between the supporters of a strong President (the political majority of the 1990 and 1991) and the partisans of parliamentarism (the opposition of the 1990 and 1991).

The classic opinion regarding specific characteristics of the Romanian system of government was firstly articulated at the beginning of the nineties by two experts involved in drafting the post-communist Fundamental Law. They were Florin Vasilescu and Antonie Iorgovan[i]. The Romanian system of government is a mild semi-presidentialism or parliamentarized semi-presidentialism, in contrast with the French system of government, which has a strong and influential President.

The President’s constitutional prerogatives are limited in comparison to other presidents` prerogatives in various European states (e.g., France, Finland, and Poland). Most presidential powers are subject to the control of other institutions, such as the Government and the Parliament. As such, not all formal presidential powers regulated by the Constitution can be freely carried out by the chief of state. As a consequence, the role of President within the political system depends not only on the number of his prerogatives, but also on the effective and independent/exclusive use of these powers.

I shall present 10 arguments in favor of the mild semi-presidentialism, most of them of a normative nature, as they were proposed by the Romanian doctrine[ii]:

  1. Both the Parliament and President are elected in direct universal elections, and they are representative authorities at the national level. Nevertheless, only the Parliament is the “supreme representative body of the Romanian people” according to Art. 61 (1) of the Romanian Constitution.
  2. The President’s power to dissolve the Parliament implies the achievement of six preliminary conditions, which make this prerogative almost impossible to be effectively used in practice (Art. 89 of the Constitution).
  3. The Constitution regulates for two types of President`s responsibility: political responsibility for grave acts infringing upon constitutional provisions (Art. 95), and a special criminal responsibility for high treason (Art. 96).
  4. Even though initiated and finalized by the President, the procedure for appointing a Government implies a vote of confidence from the parliamentary majority. Hence, it is the political majority within the Parliament which is essential for the birth of a new Government, not the formal prerogative of the President to appoint a candidate for the PM’s office.
  5. According to Art. 109 (1) of the Romanian Constitution, the Government and each member of the cabinet are only politically and jointly liable for their activity in front of a parliamentary majority.
  6. Not only the President, but each Chamber of Parliament, may demand legal proceedings to be taken against members of the Government for acts committed in the exercise of their office. Moreover, the President may suspend these ministers from office if criminal proceedings are undertaken against them – according to Art. 109 (2) of the Romanian Constitution (see also Decision of the Constitutional Court no. 270/2008).
  7. The President does not have the authority to initiate draft laws. Only the Government, members of Parliament, and a certain number of citizens have this authority according to Art. 74 (1) of the Romanian Constitution.
  8. The right of the President to refuse the promulgation of a law adopted by Parliament can be exercised only once after the law is received from Parliament (Art. 77 (1) and (2) of the Romanian Constitution).
  9. The most important presidential powers in foreign affairs are submitted to governmental or parliamentary control (Art. 92 and 93 of the Romanian Constitution).
  10. Presidential decrees (President`s official acts) adopted by the President in order to exercise his most important constitutional prerogatives are countersigned by the Prime Minister according to Art. 100 of the Romanian Constitution.

All of the above mentioned arguments are viable considering their normative logic. Nevertheless, the main problem is to find out if these arguments remain viable when analyzed from the perspective of political and institutional practice of the last quarter of a century. Vasilescu and Iorgovan`s opinion regarding the Romanian system of government is not enthusiastically shared by all scholars. For example, Tudor Drăganu makes a strong case arguing that the constitutional provisions and the institutional post-communist practice have created rather a classic semi-presidential system than a mild or parliamentarized one.

First, the President holds significant powers which are exercised without the Prime Minister`s or other ministers’ consent (for example, the appointment of civil servants).

Second, regardless of whether or not they are countersigned by the Prime Minister, the President is liable for his decrees: “Thus, following the logic of the 1991 Constitution, the decrees for which the Prime Minister’s countersignature is not necessary and those for which a counter-signature is mandatory directly engage the liability of the President; hence, one can say today, in our country, the principle according to which the chief of state reigns but does not govern has been changed with this rule stating that the President reigns and governs (my translation, B.D.)”[iii].

Third, because he is elected directly by the people, the President exercises from the beginning of his mandate a higher authority than the Prime Minister’s. The latter owes his office to political negotiations and compromise between leaders of the parliamentary majority and the chief of state.

Fourth, when parliamentary elections overlap with presidential elections, the key elements of the electoral campaigns focus on the presidential candidates` personalities and their political programs. Basically, the electoral interests of the members of Parliament are subordinated to the major electoral interests of the presidential elections.

Finally, the President represents the Romanian state according to Art. 80 (1) of the Constitution. He meets with other heads of state at official international conferences and reunions. This constitutional provision provides significant symbolic authority to the President (see also the Constitutional Court decision no. 683/2012).

2. The practice of Romanian semi-presidentialism

The practice of semi-presidentialism in Romania shows that the Romanian President played and plays a relevant role within the political system. Even though his formal powers are limited, the President exercises a lot of political influence. The symbolic and formal powers of the President create an independent institution, scrutinizing and controlling the political action flow of other institutions.

In Romania, from a normative perspective, we have a mild semi-presidentialism, but from the political practice perspective, we developed a true semi-presidential system, with a strong chief of state and with many intra-executive conflicts and also conflicts between the legislative and executive branches of government.

The institutional system regulated by the 1991 Romanian Constitution created relative stability for the political regime following the collapse of communism; even so, there were political struggles between the opposition and those in power; struggles within the legislative and governmental coalitions were often harsh and ruthless. There are at least two kinds of factors explaining the stability of the new democratic regime. On one hand, there are factors related to the political party system and extra-normative relations between political actors; on the other hand, there are factors related to the institutional matrix regulated by the Constitution, laws, and the jurisprudence of the Constitutional Court.

In the logic of the Romanian system of government, the dissolution of Parliament is constitutionally restricted to the point of being nearly impossible. Nevertheless, in a certain political context, the President might threaten with dissolution procedures, hence influencing the decisions of the parliamentary majority. At the same time, the President cannot be dismissed by the Parliament; he is dismissed only by the citizens via a referendum or by the High Court of Justice and Cassation for high treason. The Parliament can sanction the President by suspending his term in office (art. 95), or it can decide to impeach the chief of state for high treason, the final decision being taken by the High Court of Justice and Cassation (art. 96). From this perspective, the Romanian constitutional architecture seems closely related to a presidential system, with a more rigid separation of powers between the President and Parliament, or a mutual independence, according to Stepan and Skach.

Because the post-communist presidents could not dissolve Parliament, they were also unable to fully and directly control parliamentary majorities. Hence, they searched for alternative means for exercising political control over these parliamentary majorities. One solution was to maximize their political influence within the process of Government appointments, regardless of whether or not they were held at the same time as the presidential elections. The symbolic prerogative of designating a candidate for the Prime Minister’s office became an extremely powerful weapon in the hands of post-communist presidents, who used it to its full capacity in order to create or demolish parliamentary majorities.

I shall make an inventory of several explanatory factors emphasizing the President`s political influence within the Romanian post-communist constitutional system. Of course, institutional practice and the extensive research of the archives could bring to the table other explanatory factors and even invalidate the ones identified in this study.

The extra-normative factors influencing the power relations between the chief of state and other political actors are numerous and heterogeneous. They include personality, style, psychological profile of any incumbent President or Prime Minister, the political strategy of each chief of state or Government leader, and also their public messages. In fact, the political messages construct the public perception regarding the persons occupying high state offices and their personal political projects. The public perception is measured via different sociological methods, and the results of these studies generate political support or rejection of a politician or political party.

The selection process of the presidential candidates is a highly important factor which might have a relevant influence on the power relations between the chief of state, the Prime Minister, and the Parliament. Generally, in the former communist states from Central and Eastern Europe, those winning the presidential office were the most important and visible leaders of major political parties. The Romanian post-communist presidents (Ion Iliescu in 1990, Emil Constantinescu in 1996, Ion Iliescu in 2000, Traian Băsescu in 2004) were strongly mediatized public personalities, they ruled over strong political parties or electoral alliances, and maintained a strong influence over the political structures of their parties long after they won the presidential elections.

The political leaders managing the transition process from a communist non-democratic regime to a post-communist democratic regime were massively trusted by the electorate. As leaders of the transition, their popular legitimacy was huge and well consolidated before the drafting of the first democratic constitutions (the case of Czech Republic, Romania, Poland, and Hungary). Some of these leaders maintained their initial political influence over the institutional system, and transformed the President’s office in the nervous central system of the national politics (e.g., Romania, Poland, and Bulgaria cases).

In Romania, the institutional building process of the new democratic regime was influenced by the first institutional power structures of the 1989 Revolution. The relevant factor was the political parliamentary majority concentrated around the most influential political leader, also legitimized by the first free democratic elections of the new regime. This political leader became the chief of state; hence, from the beginnings of the Romanian post-communist democracy, the presidential office was perceived by the people and political actors as more important and influential than the Prime Minister’s office.

Since presidential term lengths were modified from 4 to 5 years in the constitutional revision process of 2003, different cohabitation periods have emerged between a chief of state with certain political views and a parliamentary majority supporting a Prime Minister with different political views. In such circumstances, the influence of the President over the decision making bodies (the Government and the Parliament) was diminished, yet not eliminated.

3. The jurisprudence of the Constitutional Court

The Constitutional Court not only protected, but also enforced the role of the President. It is not clear if the Court has taken upon itself this mission in order to assure a more rigid separation of power between the executive and the legislative branches of power or it has just adjudicated from case to case, influenced by the political context, the specific facts of the case, and the constitutional doctrine.

In the same time, there are couple of Constitutional Court’s decisions which did not favor the President or enforce his role; moreover, some of these decisions have the potential to significantly change the relations between the President and the parliamentary majority in the years to come.

3.1 A key decision

A key piece of Constitutional Court’s jurisprudence regarding the Romanian system of government is Decision no. 683/2012. The incumbent chief of state asked the Court to judge a legal dispute of constitutional nature between the President and the Government, represented by the Prime minister. The substance of the conflict referred to a sensitive matter, meaning who had the right to represent the Romanian state at the European Council Summit on 26-28 of June 2012: the President, who is representing the state according to art. 80 (1) of the Constitution or the Prime minister, head of the Government, who is implementing the foreign policy of the country, according to art. 103 (1) of the Constitution?

Judging this case, the Court expressed its view about the Romanian system of government, invoking Duverger’s definition of the semi-presidential system of government and the French Fifth Republic’s Constitution as a source of inspiration for the Romanian constitutional legislator in 1991.

According to the Court, the role of the President regarding the foreign policy of the state, the position of chief commander of the armed forces, president of the Supreme Council of National Defense, the competence to return the law to the Parliament for reconsideration, the competence to ask the Constitutional Court for a judgment, the competence to designate the candidate for the Prime Minister`s office, the competence to appoint an interim Prime Minister, the competence to appoint ministers, the competence to demand criminal proceedings for the members of the Government, the competence to consult the population of the country via referendum, the competence to appoint civil servants for public offices, the competence to grant individual pardons are all relevant arguments to qualify the political regime regulated by the Romanian Constitution as semi-presidential.

Following this logic, the Court ruled in favor of the chief of state, recognizing his essential role for conducting and engaging the State`s foreign affairs policies. Art. 80 (1) of the Constitution enables the President to design the main guidelines for the State`s foreign policy, thus determining the general direction of the foreign relations, always taking into consideration the national interest. Such an interpretation was based on the representative character of the presidential office, the chief of state being elected by the citizens via universal, equal, direct and freely expressed vote.

The Prime Minister, as representative of the Government, has the right to implement the country’s foreign policy, meaning that the Government will adequately implement the obligations engaged at state level. Therefore, the role of the Government in such matters is more technical than strategic.

Moreover, in regard to the participation at European Council meetings, the Court stated that the President could delegate the representation of the state to the Prime Minister when the former finds it necessary.

In two recent decisions, the Court tries to develop this argument and states that the President`s discretionary power to delegate the representation of the state to the Prime Minister is not unlimited and arbitrary; the chief of state has to take into consideration from case to case the following objective criteria: (i) which is the public authority better equipped to understand the topics debated in the European Council`s meeting; (ii) the opinion of the President or of the Prime Minister regarding such topics should be legitimized by a point of view of the Parliament consistent with the one expressed by the executive authorities; (iii) the difficulties generated by the obligation to implement the decisions of the European Council. Therefore, the President’s decision to delegate the representation of the state to the Prime Minister has to take into consideration all these criteria in order to construct a consensus among the authorities and also to take into consideration the constitutional principle of loyalty (see also Decision no. 441/2014).

Moreover, following Duverger’s definition of the semi-presidential system of government, the Court stated also that its previous jurisprudence has favored the recognition of significant powers for the President:

  • Decision no. 375/2005: the Court recognizes that the President could refuse only once, by reasoned decision, the appointment of a magistrate at the proposal of the Superior Council of Magistracy; otherwise, the presidential power to appoint a judge or a prosecutor would have been symbolic, void of any content, and this was not the intention of the constitutional legislator.
  • Decision no. 384/2006: the Court states that the President grants the ranks of Marshall, General and Admiral without any constraint or limitation provisioned by the law (see art. 94 of the Constitution).
  • Decision no. 98/2008: the Court states that the President could refuse once, by reasoned decision, the proposal of the Prime Minister to appoint a person for a vacant ministerial office. The Prime Minister is constrained to nominate another person and the President cannot refuse his/hers appointment as minister.
  • Decision no. 799/2011: the Court recognizes the need to amend the current constitutional provision of art. 85 (2) so that the Prime Minister could consult with the President before the former asks the latter to appoint or revoke one the Government’s members.

3.2 Other decisions favouring the president

In the Advisory opinions nos. 1/2007 and 1/2012, the Court states that not any acts infringing upon constitutional provisions are “grave acts” triggering the suspension of the President’s mandate. The seriousness of an act infringing upon constitutional provisions is appreciated by taking into consideration couple of factors: (i) the social value which was harmed, (ii) the already established or potential damages, (iii) the person of the offender, (iv) the scope of the action. The Court considers that “grave acts infringing upon constitutional provisions” refers only to the President`s avoidance of carrying out certain mandatory decisions, hence preventing the good functioning of the state authorities, restricting the rights and liberties of the citizens, disturbing the constitutional order or pursuing the changing of the constitutional order and other acts generating similar effects. Such an argument aims at restraining the discretionary power of the Parliament when deciding upon the suspension of the President`s mandate.

In the Advisory opinion no. 1/2007 the Court shows that the constitutional provisions as also the democratic legitimacy bestowed by the direct elections of the people “impose” an active role for the President, a vivid presence in the political life. His activity cannot resume to a symbolic role. Therefore, the President can express political opinions and options, criticize the performance of the public authorities and their representatives, and propose specific reforms and measures relevant for the national interest. Nevertheless, the President`s opinions, observations or demands do not have a decisional character; hence they do not produce legal effects. The public authorities are free to acquire or reject the President`s opinions. In any case, according to the Constitutional Court`s jurisprudence, “[…] the practicing of an active role by the President in the political and social life of the state cannot be characterized as a behavior contrary to the Constitution”. The same arguments are also used in Decision no. 53/2005 and in Decision no. 284/2014. In fact, in the latter, the Court states that the President`s right to express political opinions in accordance with his political program or to militate in order to materialize these opinions is not contrary to the constitutional interdiction regarding the membership of a political party.

In the Decision no. 682/2012, the Court considers that a referendum, regardless of its decisional or facultative nature, represents a mechanism through which national sovereignty is expressed. Therefore, even though the law does not specify a procedure for implementing the results of a consultative referendum, this type of referendum produces effects. In a democratic society, it should not be acceptable for the popular will expressed with a vast majority to be ignored by the elected representatives. The will of the people expressed both in consultative and decisional referendums cannot be ignored by the elected representatives, mainly because the referendum is the expression of the national sovereignty.

In Decision no. 80/2014, the Court rejects as unconstitutional the amendment modifying art. 103 of the Constitution, regarding the appointment procedure of the Government. According to the constitutional draft law adopted by the Special Committee for the revision of the Constitution in February 2014, the discretionary power of the President to nominate a candidate for the Prime Minister`s office was eliminated, hence cutting off the most important prerogative of the chief of state. In the Court’s opinion, the President does not play the role of a decision-maker within the procedure of appointing a new Government, but the role of a moderator between the parliamentary political forces. Nevertheless, the Court says nothing about the influence that a President could have on the outcome of the political negotiations between the parliamentary parties due to the fact that the decision to nominate a candidate for the Prime Minister`s office remains within the fully discretionary power of the chief of state.

3.3 Decisions limiting the influence of the president

Even though in its previous jurisprudence the Court established a quorum of participation of at least 50% plus one of the total number of the electors in order to validate a referendum for the dismissal of the President, the same Court agreed in 2013 that a quorum of participation of 30% of the total number of electors for all referendums (including the one for the President’s dismissal) was constitutional, but the law on referendum would enter into force one year from the date of its publication in the Official Journal (see Decision no. 471/2013). The Decision no. 471/2013 sets up the basis for a new relation between future Presidents and parliamentary political majorities; as it would be easier for an anti-presidential parliamentary majority to suspend the President and force his dismissal by referendum.

This is a clear case of politically contextualized judgment on behalf of the Court. I do not address here the issue of rightness or wrongness from a political point of view. I just say that the Court should be clearer and more decisive in its judgments. This totally different judgments of the Court offers no predictability and makes no service to the Court`s credibility.

In the Decision no. 270/2008, the Court makes it clear that the General Prosecutor will address the President to demand criminal proceedings to be taken only against those members of the Government which are not members of the Parliament. The General Prosecutor will address the Chamber of Deputy or the Senate to demand criminal proceedings to be taken only against those members of the Government which are also members of the Parliament. Such a decision diminished one of the most important prerogatives of the President, as most of the members of the Government are also deputies or senators.

At last but not least, in the Decision no. 285/2014, the Court establishes that the Prime Minister can refuse to countersign the presidential decrees conferring decorations and titles of honor. The countersignature engages the political responsibility of the Prime Minister as chief of the Government in front of the Parliament for the content of the presidential decree. According to the Court, in the absence of the Prime Minister`s countersignature, these presidential decrees cannot generate legal effects.

4. Conclusions

The practice of semi-presidentialism strayed from the initial intentions of the 1991 and 2003 constitutional legislator. From a normative perspective, the Romanian Constitution established a mild semi-presidential system of government. From an institutional practice perspective, the Romanian system of government is a classical semi-presidentialism, with a strong and influent President.

One key factor to fully understand the dynamics of the power relations between the Parliament, President and Government is the Constitutional Court`s jurisprudence. The Court was influenced by the political pressures within specific contexts, and also by the French doctrine regarding the Fifth Republic`s semi-presidentialism. As a result, our constitutional judges recognized and legitimized an influential role for the Romanian President within the constitutional architecture; hence enforcing the presidential features of an otherwise mild semi-presidentialism.

Due to the fact that the President`s role was enforced by the Court, a more rigid separation of powers was generated between the President, on one hand, the Parliament and the Government, on the other hand. Basically, no political institution gathered all the political and state power in its hands. Metaphorically speaking, the Romanian system of government looks like a broken mirror, so that no political actor could see the full reflection of his face.

[i] Mihai Constantinescu, Ion Deleanu, Antonie Iorgovan, Ioan Muraru, Florin Vasilescu, Ioan Vida, Constituţia României – comentată şi adnotată [The Romanian Constitution – analyzed and annotated] (Bucureşti: Regia Autonomă Monitorul Oficial, 1992), p. 184.

[ii] Antonie Iorgovan, Tratat de drept administrativ, vol. I [Treaty of Administrative Law, vol. I] (Bucureşti: All Beck, 2005), p. 295.

[iii]Tudor Drăganu, Drept constituțional și instituții politice, vol. I [Constitutional Law and Political Institutions, vol. I] (București: Lumina Lex, 1998), p. 228.

Bogdan Dima is a Doctor of Law of the Faculty of Law, University of Bucharest, where he is also teaching Administrative Law since 2007. He is a graduate of the same Faculty and has Bachelor and Master Degrees in European Law from Collège Juridique Franco-Roumain d’Etudes Européennes de Bucarest, Université Paris 1 Panthéon-Sorbonne. His extra-academic background and expertise are highly diversified focusing mainly on strategic communication, political and electoral strategies, legislative analysis and institutional building processes. He is currently working as a counselor for the Presidential Administration in Romania, within the Institutional and Constitutional Reform Department.

Aleks Szczerbiak – Has Polish President Andrzej Duda’s first year been a success?

This is a guest post by Aleks Szczerbiak, Professor of Politics and Contemporary European Studies at the University of Sussex. An earlier version appeared on his blog.

Aleks Szczerbiak

In the year since he was sworn in as President Andrzej Duda has become Poland’s most popular politician and appears increasingly confident in his international role. But he still has to build up his authority within the ruling party if he is to become a significant independent player on the political scene.

Forced to take sides

Last May, in one of the biggest electoral upsets in post-communist Polish politics Andrzej Duda – the candidate of the right-wing Law and Justice (PiS) party, the then main opposition grouping – defeated incumbent President and odds-on favourite Bronisław Komorowski, backed by the ruling centrist Civic Platform (PO), by 51.6% to 48.5%. His success paved the way for Law and Justice’s stunning victory in the October parliamentary election when it was the first political grouping in post-1989 Poland to secure an outright majority, and Mr Duda’s campaign manager, party deputy leader Beata Szydło, became prime minister.

Although careful not to support Law and Justice overtly, Mr Duda used the various political and constitutional instruments at his disposal to promote the party’s programme of so-called ‘good change’ (dobra zmiana) in the run-up to the October poll. For example, in his first major initiative as President he proposed holding a referendum on the same day as the election on one of Law and Justice’s key campaign pledges: reversing the outgoing government’s extremely unpopular pension reforms, that raised the retirement age to 67 from 60 for women and 65 for men (although the referendum proposal was voted down by the Civic Platform-dominated Senate).

Almost immediately after Law and Justice took office, Mr Duda was forced to take sides in an extremely controversial and polarising political dispute over the membership of the constitutional tribunal, a powerful body that rules on the constitutionality of Polish laws. The new government annulled the appointment of five judges elected by the previous parliament to the 15-member body. Earlier these judges were unable to assume their posts because Mr Duda did not accept their oaths of office. However, the tribunal itself ruled that while the appointment of the two judges replacing those whose terms of office expired in December was unconstitutional the other three were nominated legally. Government supporters, in turn, argued that the tribunal did not have the right to make judgements about the constitutionality of parliamentary appointments, and Mr Duda swore in five judges nominated by the new parliament instead

The move met with widespread criticism from most of the opposition and legal establishment, who accused the government and President of violating judicial independence and undermining the fundamentals of democracy and the rule of law. As a consequence, thousands of Poles participated in demonstrations organised by the Committee for the Defence of Democracy (KOD), an anti-Law and Justice civic movement. The government’s supporters, however, placed the blame for the crisis squarely on the outgoing administration, which they argued tried to appoint five judges illegally just before the election to pack the tribunal with Law and Justice opponents. More broadly they defended these actions as necessary to restore pluralism and balance to the tribunal, which they said had been expropriated by supporters of the previous governing party, and claimed that opposition was being orchestrated by well-entrenched, and often deeply corrupt, post-communist elites.

Mr Duda paid a high political price for his unswerving support for the government on this issue. Apart from having to expend much time and political capital explaining his actions, by bringing the presidency into the epicentre of party conflict the crisis made it increasingly difficult for Mr Duda to build bridges with milieu not necessarily naturally sympathetic to Law and Justice, one of his greatest achievements during the presidential election campaign. In fact, the problem was as much the way in which the decisions were taken as their substance: four of the Law and Justice-nominated judges were sworn-in at a ceremony held literally in the middle of the night before the tribunal was due to rule on the constitutionality of the earlier appointments. Opinion surveys conducted by the CBOS polling agency found a 20% increase (to 40%) in negative evaluations of the President between November and December, while the number who did not trust Mr Duda rose from 19% to 30%.

Struggling to carve out an independent profile

More broadly, Mr Duda has struggled to carve out an independent profile for himself in his first year as President. The presidency has a particular position in the Polish political system. It is not simply a ceremonial role and, in addition to a strong electoral mandate, retains some important constitutional powers such as: the right to initiate legislation, refer bills to the constitutional tribunal, and, perhaps most significantly, a suspensive veto that requires a three-fifths parliamentary majority to over-turn. However, Mr Duda has quickly signed all of the Law and Justice government’s bills into law. Indeed, a December 2015 survey by the IBRiS agency found that by a majority of respondents (54% to 35%) felt that he did not take his decisions independently of Law and Justice leader Jarosław Kaczyński who, although he does not hold any formal state positions, exercises a powerful behind-the-scenes influence in determining the government’s programmatic and strategic priorities.

Moreover, the President’s competencies are much less significant than those of, say, his French counterpart and real executive power lies with the prime minister. So it is difficult for him to carve out a distinctive role in the domestic political sphere, especially when a presidential term coincides with that of a government led by his political grouping. As soon as the Law and Justice government was elected, therefore, Mr Duda’s promises went on the back-burner and attention shifted to the new administration’s legislative programme. For example, the government’s priority during its first months in office was introducing its costly but generous (and extremely popular) ‘500 plus’ child subsidy programme, which Mr Duda supported but in most citizens’ minds was associated primarily with the Szydło administration. Mr Duda’s two flagship campaign pledges, lowering the retirement age and increasing tax allowances, languished in parliament for several months and, although the government has promised to bring forward legislation in the autumn, it is still not clear when they will be implemented. Moreover, when it appeared to threaten the stability of the financial sector, the President was forced to row back from his key election pledge to help the country’s half-a-million foreign currency (mainly Swiss franc) mortgage holders (who had lost out as a result of the depreciation of the Polish currency in recent years) by forcing banks to convert their loans to złoties.

It is naïve to expect Mr Duda to distance himself from policies which are almost identical to the ones on which he was also elected. Everything suggests that he shares Mr Kaczyński’s political philosophy and perspectives on most issues and personally supports most if not all of the government’s decisions. At the same time, refusing to sign one of the government’s flagship bills would be incomprehensible to Mr Duda’s political base, and while it might draw some short-term praise from Law and Justice opponents they would quickly revert to criticising him again. Mr Duda is also a relatively young politician and may have future ambitions to take over the Law and Justice leadership when Mr Kaczyński eventually stands down, so it is not in his long-term interests either to alienate the party’s core supporters.

Prioritising defence and foreign policy

However, Mr Duda is aware that in order to secure the 50% of the votes that he needs for re-election he also has to appeal to more centrist voters beyond the Law and Justice hard core. Consequently, he has been trying to steadily carve out a more independent political role for himself. The first clear indication of this came in April during the sixth anniversary of the Smoleńsk tragedy, a plane crash in which the then Law and Justice-backed President Lech Kaczyński, Jarosław’s twin brother, and 95 others were killed while on their way to commemorate the 1940 Soviet massacre of Polish officers in the Katyń forest in western Russia. The air disaster is still an open wound for Law and Justice, and Mr Kaczyński and some party leaders have not only accused the former Civic Platform-led government of negligence in planning the flight and mishandling its aftermath but also appeared to countenance assassination as a possible cause of the crash. In his speech at the commemorations, Mr Duda made a symbolic appeal for national unity and mutual forgiveness, prompting Mr Kaczyński to respond that forgiveness was needed but only after those guilty of causing the tragedy were brought to justice.

At the same time, Mr Duda has marked out foreign affairs and defence policy as his main field of activity and appears increasingly confident in this role. Although foreign policy lies within the government’s domain, the Polish Constitution gives the President an informal oversight and co-ordinating role. He can also exercise a powerful informal influence through his foreign visits and high profile speeches on international issues. During last year’s elections Law and Justice made the sharpening of policy towards Russia a crucial test of its effectiveness in ensuring national security, and called for the July NATO summit in Warsaw to strengthen Poland’s defence infrastructure by securing a greater (and preferably permanent) Alliance military presence in the country. Mr Duda visited a large number of NATO member capitals to mobilise political support for Poland’s demands and, in the event, the summit agreed to strengthen the Alliance’s Eastern flank and confirmed the deployment of a 1,000-strong international battalion on a rotational basis on Polish territory.

The summit’s success no doubt contributed to Mr Duda’s steadily increasing popularity, together with the fact that as President he has demonstrated a more open style and greater ability to connect with ordinary Poles than the stereotypical Law and Justice politician. In spite of opposition attempts to portray him as a ‘partisan President’, July CBOS polls found that Mr Duda enjoyed a 56% approval rating (32% disapproval) and remained Poland’s most popular politician with 62% saying that they trusted him (24% did not). However, although he remains unswervingly loyal to the Law and Justice leader, Mr Duda’s attempts to develop a more independent profile also appear to have led to a cooling of relations with Mr Kaczyński, who some commentators argue has been distancing himself from the head of state. For example, the Law and Justice leader appeared to snub Mr Duda when he failed to include the President among those he listed as responsible for the NATO summit’s success; although he quickly corrected himself saying that this was a mistake. Nonetheless, Mr Kaczyński appears to treat not just Mr Duda but the whole government as the implementers rather than creators of policy and leaves little doubt that the party’s most important decision making centre remains the leader’s office.

Popular but lacking a clear role

One year is too soon for a proper evaluation of Mr Duda. For sure, it has been difficult for him to realise his concept of an ‘open’ presidency at a time when the political scene is so deeply polarised around bitter conflicts such as the constitutional tribunal crisis. However, although the crisis damaged Mr Duda’s ability to develop links with certain milieu, the opposition’s attempts to dub him a ‘partisan President’ do not appear to have harmed his approval ratings to any significant extent. Indeed, he remains one of Law and Justice’s greatest political assets with a significantly broader base of support than the party or any of its other leaders. Mr Duda’s main problem is that he has not yet found a clear role for himself and needs to build up his authority within the ruling party if he is to become a significant independent player on the Polish political scene.

Jorge M. Fernandes and Carlos Jalali – Portuguese Semi-Presidentialism after the 2016 Elections

This is a guest post by Jorge M. Fernandes (University of Bamberg, Germany) and Carlos Jalali (University of Aveiro, Portugal)

The famous dictum attributed to former British PM Harold Macmillan, ‘events, dear boy, events’, helps explain the evolution of Portuguese semi-presidentialism during President Cavaco Silva’s second term in office (2011-2016). In a recently published article in South European Society and Politics, we make an an appraisal of the evolution of semi-presidentialism in Portugal over the ten years of Cavaco’s tenure in power and shed some light on the election of his successor – Marcelo Rebelo de Sousa.

After being comfortably reelected in January 2011, with a 30 percentage point advantage over the second most-voted candidate, the political and economic situation of the country presented Cavaco with a difficult conundrum. The EU/ECB/IMF bailout that lasted from April 2011 until May 2014 placed important constraints on policy-making in Portugal. On the one hand, the president could give vent to popular dissatisfaction with the bailout’s austerity – and use his formal and informal powers to voice bottom-up disagreement with the government’s policies. However, this risked introducing difficulties into the implementation of the Memorandum of Understanding (MoU), which could spark the wrath of the international creditors. On the other other hand, by staying idle, Cavaco faced the risk of unpopularity in public opinion.

Cavaco’s decision to give his tacit support to the implementation of the MoU had an important negative impact in his popularity, which, in turn, curbed his political influence. In the final months of his second mandate he was a lame-duck president, with increasing difficulties to use his non-formal powers. For example, in the turbulent government formation process following the October general elections, Cavaco Silva’s influence, or lack thereof, curtailed his capacities to liaise a deal between the two main parties, the Socialists and the Social Democrats, to form a grand coalition. Rather, a sub-optimal solution, from Cavaco’s perspective, was reached: a Socialist minority government with the tacit support of the extreme-left Communists and Left-Bloc.

Typically, Presidents have been the most popular political figures in Portugal, enjoying support levels above party leaders and other office-holders. Figure 1 depicts Cavaco popularity between 2011 and 2016. In January 2012, a sharp drop in popularity hurt Cavaco’s political influence after his public statements on how austerity would have a negative effect on his personal finances and how difficult it would be for him to pay for his personal expenses. Overall, at the end of his mandate, the institutional figure of the Presidency had its prestige and influence severely eroded due to Cavaco’s unpopularity in office.

Figure 1: Evaluation of President Cavaco Silva’s performance, 2011-2016 (balance between positive and negative evaluations)

Picture1

The 2016 presidential election took place against this backdrop. In addition, the months leading to the presidential election had witnessed the unfolding of some of the most dramatic events in Portuguese democracy, with a difficult government formation process. The presidential election had 10 candidates, an unprecedented figure since Portugal held presidential free and fair elections in 1976.

Marcelo Rebelo de Sousa, the right-wing candidate supported by the Social Democrats and the Christian Democrats, seemed poised to win the election, with his high levels of popularity garnered over decades as a political pundit in a popular television show. On the left, a myriad of candidates was trailing Marcelo’s lead in the polls, fighting for an opportunity in the second round. Sampaio da Nóvoa, a highly respected academic figure, earned the support of some of the founding fathers of Portuguese democracy in the Socialist Party. The candidate lacked, however, name recognition by median voters, which would have a negative impact on his result. Maria de Belém, a former Socialist minister, launched her bid to the presidency urged by a faction within the Socialist party. The Socialist party and the Prime Minister chose not to endorse any of the candidates. The Communists presented Edgar Silva, a former priest with low public visibility, while the Left Bloc put forth Marisa Matias, an MEP and a rising star in the party. In addition to the mainstream candidates, there were five independent candidates, looking to build upon the anti-party sentiment and to surf the discontent wave grassing in Portugal.

The campaign had a remarkably low mobilization. The hollowing of the presidential campaign resulted from the perception of the irrelevance of the president’s role, ensuing Cavaco’s choice not to help mitigate austerity and to give his (at least) tacit support to the bail-out measures. For all its problems, the role of the president in the political system was not debated during the campaign. Instead, candidates chose to have a personalized campaign, depoliticizing most of their campaign actions, focusing on personal contact with the population and in making a character judgment of the candidates. Marcelo Rebelo de Sousa, the leading candidate in the polls, followed this strategy strictly in the hope that this would deflate the importance of the elections, allowing him to be elected in the first round.

On January 24th, 48.66 per cent of registered voters went to the polls to elect a new president, the lowest turnout in odd-numbered presidential elections, which have traditionally been more competitive for their importance in selecting a non-incumbent president. Marcelo Rebelo de Sousa won 52 per cent of vote, with a catch-all coalition. To be sure, his score surpassed the aggregate score of his supporting parties (PSD and CSD), just three months before, by adding 15.1 to the share of those two parties. Sampaio da Nóvoa came second with 22.9 per cent of the votes, falling just 2 percentage points short of forcing Marcelo into a second round, a remarkable feat for an unknown academic figure. Marisa Matias came third, with 10.1 per cent of the votes, yielding the best presidential score in the history of the Left Bloc. In contrast, the Communists had a grim electoral result, with their worst result ever, with just 3.9 per cent. Maria de Belém, the other candidate from the Socialist area, scored just 4.2 per cent, an extremely bad result for the former Health minister. Surprisingly, for all Portugal’s economic woes, anti-system candidates had very modest scores, totaling 6.84 per cent of the vote for 5 candidates.

What can we expect from a Marcelo presidency? On the surface, President Marcelo differs little from his predecessor. Both Marcelo and Cavaco Silva were previous leaders of the PSD; both had the backing of the PSD and the CDS; and both won their presidential elections on the first round with a margin of 30 percentage points over the second-placed candidate. Yet his first months in office suggest that Marcelo is trying to distance himself as much as possible from his predecessor’s legacy. Indeed, in this initial period President Marcelo has actively courted public opinion, cultivated a supra-partisan stance and avoided tensions with the Socialist government of António Costa. This contrasts sharply with how Cavaco Silva’s presidency ended: an increasingly withdrawn and unpopular political figure, perceived by the left as a partisan president and unable to forge the consensus he sought between PSD, PS and CDS – most notably, in the aftermath of the 2015 legislative elections. President Marcelo thus appears to seek to re-establish the presidency after a period of hollowing out of the presidency which also shaped the presidential elections of 2016.

However, the end of Cavaco Silva’s presidency does not solely differ from the initial Marcelo presidency: it also stands in stark contrast from the initial period of Cavaco Silva’s own presidency. Then, just as with Marcelo, Cavaco Silva was an overwhelmingly popular president (with an average balance between positive and negative evaluations of +52.8 per cent throughout 2006) who maintained an ‘above party’ stance and avoided friction with a Socialist government – indeed, so much so that prime minister Sócrates told President Cavaco in December 2006 that ‘we like working with you’. Cavaco’s undoing was largely the result of a deteriorating economic, social and political situation that culminated in a bailout. Marcelo – who is widely reputed as a master political tactician – will need all his tactical nous to avoid repeating Cavaco’s fate, not least as Portugal’s economic, social and political situation remains uncertain and precarious.

Executive-Legislative Relations and Constitutional Politics in Central and Eastern Europe

This is a post by Anna Fruhstorfer, Postdoc at Humboldt University Berlin, who – together with her colleague Michael Hein – is the editor of the new book Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems, published by Springer VS.

With its changes in the political and economic realm, 1989 to many citizens in Central and Eastern Europe marked a spark of great hope for the establishment of a western-style political, legal, and economic order. The aim of the new elite was the introduction of democracy and the rule of law. One important tool to achieve these goals was that of constitutions. The post-1989 constitution-making processes have also been widely discussed in political science research (Arato 2000; Elster 1993; Elster, Offe & Preuß 1998; Holmes & Sunstein 1995; Kitschelt 1994; Sartori 1997). However, since then it has become apparent that the different countries’ pathways do not fulfill the great hopes referred to above. Either the pathways were longer than initially expected or they reached an impasse due to (semi‑)authoritarianism and a poverty trap. These only partially fulfilled hopes also apply to the development of the constitutional systems (see also Rosenfeld, Sadurski & Toniatti 2015).

Against this background, we analyze constitutional politics in 20 post-socialist countries from two perspectives. We focus on constitutional politics following the implementation of the first post-soviet constitution after 1989 and examine all successful amendments and unsuccessful draft amendments, including failed attempts to establish a new constitution, up until 2015.[1] Thus, we considerably broaden the perspective on constitutional studies, since failed amendment initiatives have hardly ever been studied[2], even though such a “success-oriented” angle significantly narrows the data and information on constitutional processes (see Mahoney & Thelen 2010). We focus on three main research questions: How do democratization or autocratization processes influence constitutional politics and vice versa? Do external actors exert a significant influence on constitutional politics? And: Is the ‘transition paradigm’ still applicable to Central and Eastern Europe?

Constitutional politics after the enactment of the first post-socialist constitutions in Central and Eastern Europe – here used in the narrow sense of constitution-making, constitutional amendments, and the national discourse about the constitution and its changes – have dealt with a broad spectrum of topics. In our analysis of 20 Central and Eastern European countries, we find that there is virtually no individual constitutional subfield that has not been the target of amendments or amendment initiatives in at least one of these countries. With this perspective, the variety of topics has led us to assume that certain patterns of constitutional politics might be distinguished.

Most certainly, we can observe problems of path dependence and action constraints. These have particularly emerged with regard to the democracy-autocracy divide. In particular, Belarus and Russia present a case of a thorough autocratization[3], whereas e.g. in Bulgaria, Lithuania, and Moldova certain constitutional provisions ultimately led to democratic deficits or were not helpful in preventing them. However, we can also see the light at the end of the tunnel, i.e. countries in which constitutional politics can actually make a positive difference. The constitutional amendments pursued in Poland solved severe inter-institutional conflicts, and in Croatia and Slovakia semi-autocratic structures were actually replaced with a democratic constitutional arrangement.

The most important constitutional subfields are legislative-executive relations, national identity and minority rights, and aspects related to EU accession. In this post we focus primarily on the findings concerning the relationship between presidents and cabinets within the executive. We particularly expected to find draft amendments in this realm in countries with conflict-prone constitutional specifications, such as Albania, Croatia, Moldova, Poland, Romania, and Ukraine. And indeed, the question of presidential power, the agent-principal relation between president and prime minister, and questions of negative or positive parliamentarism dominated both constitutional discourses and politics in a number of countries (in particular in Albania, Croatia, Moldova, Poland, Romania, and Ukraine). Whereas in two of those cases the respective problems in the institutional design were solved by means of a thorough constitutional reform (in Croatia) or a new constitution (in Poland), in the other four cases constitutional reforms did not lead to an enduring pacification of institutional conflicts or a higher efficiency of governance. Not surprisingly, Albania, Moldova, Romania, and Ukraine are the countries in our group of 20 cases that witnessed the most serious crises at the heart of their governmental systems.

We believe that these crises, or sometimes even shifts between authoritarianism and democracy, are closely related to constitutional politics. Constitutions can provide the context within which a democracy can thrive (e.g. Bulgaria, Estonia, Latvia, Lithuania, Poland, and Slovenia). However, sometimes constitutional politics also contribute to a failed democratization (Belarus after 1994, Croatia and Serbia until 2000/2001). We see that autocratization virtually appears as constitutional choice by design, in particular by establishing over-powerful presidential institutions (e.g. Albania, especially until 1998, or Belarus). Furthermore, constitutional choices concerning executive-legislative relations can also become a ‘political battlefield’, such as in Moldova or Ukraine, where executive-legislative relations, or in particular the choice between a premier-presidentialism or presidential-parliamentarism, were vigorously debated. Yet, constitutional amendments have not necessarily advanced the countries’ democratic development (as exemplified by the ‘ping-pong game’ in Ukraine or the constitutional and political stalemate 2009–2012 in Moldova). Thus, some of the country studies suggest that not only the degree of democratic quality, but also the direction of democratic development can be represented in a constitution. Aleksandr Lukašenko, Slobodan Milošević, Franjo Tuđman, and Vladimir Putin did not gain their powerful positions only – if at all – by breaking the constitution. The constitutional choices made during early post-socialist transition have instead featured as a necessary condition for their successes. And although the type of governmental system certainly has no clear causal effect on the success or failure of democracy (see in particular, and representative for the debate, Cheibub 2007), the constitutional crises in these countries did center around the question of legislative-executive relations, thus making the type of governmental system the focal point of the constitutional debate regarding the success of democratization in Central and Eastern Europe.

References
Arato, Andrew 2000. Civil society, constitution, and legitimacy: Rowman & Littlefield Publishers.
Cheibub, José A. 2007. Presidentialism, parliamentarism, and democracy: Cambridge University Press.
Elster, Jon 1993. Constitution-making in Eastern Europe: Rebuilding the boat in the open sea. Public Administration 71(1-2), 169–217.
Elster, Jon, Offe, Claus & Preuß, Ulrich K. 1998. Institutional Design in Post-communist Societies. Rebuilding the Ship at Sea. Cambridge: Cambridge Univ. Press.
Fruhstorfer, Anna & Hein, Michael 2016. Constitutional Politics in Central and Eastern Europe. From Post-Socialist Transition to the Reform of Political Systems. Wiesbaden. Springer VS.
Holmes, Stephen & Sunstein, Cass 1995. The politics of constitutional revision in Eastern Europe, in Levinson, Sanford (Hg.): Responding to imperfection: the theory and practice of constitutional amendment: Princeton University Press, 275–306.
Kitschelt, Herbert 1994. Rationale Verfassungswahl? Zum Design von Regierungssystemen in neuen Konkurrenzdemokratien. URL: http://edoc.hu-berlin.de/documents/ovl/kitschelt-herbert/PDF/Kitschelt.pdf [Stand 2010-07-28].
Köppl, Stefan 2003. Vergebliches Bemühen um Veränderung: Gescheiterte Anläufe zur Reform der italienischen Verfassung. Zeitschrift für Parlamentsfragen, 310–329.
Lutz, Donald S. 1994. Toward a theory of constitutional amendment. American Political Science Review, 355–370.
Mahoney, James & Thelen, Kathleen 2010. Explaining Institutional Change. Ambiguity, Agency, and Power, in Mahoney, James & Thelen, Kathleen (Hg.): Explaining Institutional Change. Ambiguity, Agency, and Power. Cambridge [u.a.]: Cambridge Univ. Press, 1–37.
Rasch, Bjørn E. & Congleton, Roger D. 2006. 12. Amendment Procedures and Constitutional Stability. URL: http://rdc1.net/forthcoming/DCD%20(Chap%2012,%20Amendment%20Procedures,%20Congleton%20and%20Rausch).pdf [Stand 2016-06-21].
Rosenfeld, Michel, Sadurski, Wojciech & Toniatti, Roberto 2015. Central and Eastern European constitutionalism a quarter century after the fall of the Berlin Wall: Introduction to the Symposium. International Journal of Constitutional Law 13(1), 119–123.
Sartori, Giovanni 1997. Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes. Houndsmills, Basingstoke, Hampshire and London: Macmillan Press Ltd.

[1]  The selection criterion here is that such attempts have at least gone through the formal amendment procedure as outlined by the valid constitution.
[2]  The rare exceptions are Köppl (2003), Rasch and Congleton (2006), and Lutz (1994).
[3]  All references to individual countries refer to the analysis in the respective country chapters in the edited volume (Fruhstorfer and Hein 2016).

São Tomé and Principe – Election Commission annuls election results, opens door to second round vote

Initial election results indicated that Evaristo Carvalho, candidate of the ruling ADI party, won the presidential election held on 17 July. Carvalho defeated incumbent President Pinto da Costa. Yet, on 22 July, the Election Commission (CEN) cancelled the election results. The Constitutional Court has recently decided that a second round of voting will take place on 7 August.

According to provisional data, Carvalho won 50.1% (34,629) of the votes, incumbent President Manuel Pinto da Costa who ran as an independent garnered 24.8% (17.121), and Maria das Neves of the Movement for the Liberation of São Tomé and Príncipe/Social Democratic Party (MSTP-PSD) managed to win 24.1% (16,638). Two other candidates, Hélder Barros and Manuel do Rosário, won 0.3% (194) and 0.7% (488) of the votes respectively. Roughly 70,000 people voted and the abstention rate was 35.91%.[1] President Pinto da Costa and Maria das Neves contested the election results before the country’s Constitutional Court.

In São Tomé and Príncipe the presidential term is five years, and is limited to two consecutive terms. The electoral system for presidential elections is based on the majority principle where the winning candidate is required to obtain an absolute majority (a minimum of 50% plus one vote) of the votes. A second election is organised if none of the candidates receives an absolute majority. In the second round, only the two top candidates are allowed to contest.

The CEN cancelled the election results because of changes in the provisional results affected by vote counts from the diaspora (Portugal, Angola, Gabon, Equatorial Guinea) and because voting had been delayed in one district. According to the Election Commission, no candidate managed to get more than half the votes validly cast. On 22 July, the Constitutional Court decided that a second round between President Pinto da Costa and Carvalho will take place on 7 August.

Both presidential candidates are experienced politicians. President Pinto da Costa, 79, was the first president after independence (1975-1991) and was co-founder of the opposition party, the Movement for the Liberation of São Tomé and Príncipe/Social Democratic Party (MLSTP/PSD). Since 2011, he is again president of São Tomé and Príncipe. Pinto da Costa ran three times for president (1994, 2001 and 2011). Yet, his presidential bid was only successful in 2011 when he ran as an independent candidate. Carvalho, 74, was chief of staff to President Pinto da Costa. He was defence minister in 1992 and headed a ‘government of presidential initiative’ in 1994 and in 2001. From 2010 to 2012 Carvalho was the speaker of parliament and became vice-president of the ADI after the 2014 parliamentary elections. This is the second time Carvalho has run for president on the ADI ticket. In 2011, he was defeated by President Pinto da Costa by 47.1% to 52.9%. Yet, it is unclear if President da Costa will beat Carvalho again. For one thing, the incumbent president wants the President of the Election Commission Alberto Pereira to resign and has threatened to withdraw from the presidential elections if he refuses to do so.

If Carvalho becomes president, PM Trovoada’s government may well be the first to finish its four-year term. Under São Tomé and Príncipe’s semi-presidential system, the president can dismiss the prime minister, albeit under circumscribed conditions. Presidents have actively used this power: President Miguel Trovoada (1991-2001) dismissed two prime ministers in his time, while his successor, President Fradique de Menezes (2001-2011) dismissed three.[2] Since 1991 when the first multiparty elections were held in São Tomé and Príncipe, there have been 17 different governments.

Should Carvalho win the elections, intra-executive conflict is unlikely because he is from the same party as the prime minister. The ADI won an absolute majority (33 of the 55 seats) in the 2014 parliamentary election, which resulted into the formation of a single-party government led by PM Trovoada. If President Pinto da Costa were reelected, intra-executive tensions may continue but not escalate. The president’s relationship with the prime minister has not been marked by conflict, but rather distance and non-interference.

Notes

[1] See data published online by the Election Commission (CEN): http://cen.st/index.php/publicacoes/noticias/item/212-resultados-geral-das-eleicoes-presidenciais-2016.

[2] In 2006, constitutional changes reduced the presidency’s executive powers in the areas of defence and foreign affairs and made it harder for the head of state to dismiss the PM and dissolve the 55-member National Assembly. For a detailed description of São Tomé and Príncipe’s semi-presidential system, see: SEIBERT, G. 2009. Instabilidade política e revisão constitucional: semipresidencialismo em São Tomé e Príncipe. In: LOBO, M. C. & NETO, O. A. (eds.) O Semipresidencialismo nos Países de Língua Portuguesa. Lisbon: ICS.

Germany – The headache of choosing a presidential candidate

When German Federal President Joachim Gauck declared that he would not run for a second term in February 2017, The Guardian described it as a ‘headache for Merkel‘. Gauck, a former Lutheran pastor best known for his work in overseeing the extensive archives of the former East German secret police 1991-2000, had been elected as a joint candidate of Merkel’s Christian Democrats, the Social Democrats, Green Party and Liberal Democrats (FDP) after his predecessor Christian Wulff resigned amidst allegations of corruption. Many had hoped that Gauck – who still enjoys support from all major parties in the Bundestag except DIE LINKE (successor to the East German communist party) – would run for a second term, thus sparing parties the need to find a new candidate so closely before the next general election due to be held in October 2017. Avoiding a signalling effect for potential post-election coalitions, together with parties’ desire to have their candidate elected by absolute majority in the first or second round (rather than by relative majority in the third and last round of voting) complicates the situation and creates headaches for all party leaders – not only for Chancellor Angela Merkel.

German Federal Convention

The German Federal Convention 2012 meeting in the Reichstag building, Berlin | © bundespraesident.de

Since 2013, Christian Democrats (CDU/CSU) and Social Democrats (SPD) hold a 71% majority in the Bundestag and form a grand coalition. Even though the Federal Convention – the electoral college convened for electing the German president – consists not only of members of the Bundestag but also the same number of delegates from state parliaments, both parties would have no problems to elect a joint candidate. Nevertheless, neither CDU/CSU nor SPD see this as an ideal option. With the exception of Joachim Gauck, first nominated by SPD and Greens in 2010, both parties have not nominated a joint candidate so far (rather, either party occasionally supported the re-election of the other’s incumbent). This time, too, both parties would most likely be happiest with a candidate clearly affiliated with or at least nominated only by them (not excluding support from a minor party). Nevertheless, the seat distribution the Federal Convention (see projection below) leaves little room for manoeuvre if parties want to see their candidate elected in the first two rounds. Neither CDU/CSU+FPD nor SPD+GREENS, who previously held majorities in the Federal Conventions and subsequently saw their candidates elected, hold a majority. Even a left-wing alliance of SPD, GREENS, DIE LINKE and the SSW (Danish Minority) would fall two votes short of an absolute majority.

German parties are generally cautious about who to support in the Federal Convention as the coalition patterns are seen as indicative of future coalitions on the federal level. Thus, a cooperation of the SPD with far-left party DIE LINKE is unlikely because the SPD leadership has so far categorically denied federal-level coalition potential (despite cooperating with DIE LINKE on state level) – not only could it deter SPD voters, but the CDU/CSU would also likely try to use this pairing for their advantage in the electoral campaign. Similarly, the liberal FDP – although having been in coalitions with the SPD in the past – will likely try to avoid supporting a left-wing candidacy as it hopes to re-enter the Bundestag in 2017 by taking away voters from the right-wing/populist Alternative for Germany. Last, the often-floated option of cooperation between CDU/CSU and Greens is out of the question for similar reasons. Overall, a compromise candidate elected by CDU/CSU+SPD thus seems most likely.

Projection_Seat distribution in the German Federal Convention 2016

1260 seats total; 631 votes required in first and second round, relative majority in third and final round; for more information see http://www.wahlrecht.de/lexikon/bundesversammlung.html

Analysts have highlighted over the last months that parties, particularly the CDU/CSU, would like to see a ‘professional politician’ in the presidential office – although Joachim Gauck has not opposed the government in a major way, some MPs have criticised him for contradicting government positions and even went so far as to investigate means to ‘muzzle’ the president. The CDU/CSU also still lament the resignation of Horst Köhler in 2010 following public criticism of his statements regarding German military deployment which was put down party due to him not having a sufficiently think skin to withstand conflicts of this kind. Foreign Secretary Frank-Walter Steinmeier (SPD) has been mentioned most consistently (even before Gauck’s announcement) as a potential candidate. Despite having been the SPD’s candidate for Chancellor in 2009 and serving as deputy party chairman, he is seen as a relatively party-neutral choice – the fact that he is by far the most popular German politican (71% approval) adds to his suitability. Interestingly, the second most popular politician, veteran politician and finance minister Wolfgang Schäuble (CDU), is also frequently named as a potential candidate. Nevertheless, his hard line on Greek state debt makes him less presentable on an international level. Also, Schäuble is already 73 years old would thus also likely be unavailable for a second term in office. Defence minister Ursula von der Leyen (CDU) has a number of supporters across the political spectrum, yet is likely more keen to succeed Angela Merkel as Chancellor than become Germany’s first female president. Last, some social democrats have suggested social science professor Jutta Allmendinger (SPD member), director of the prestigious Berlin Social Science Centre, as a candidate. Nevertheless, the SPD previously failed to see a similar candidate elected on two occasions. On suggestion of then Chancellor Gerhard Schröder, the SPD nominated professor Gesine Schwan, president of the Viadrina European University in Frankfurt (Oder), for president in 2005 and 2009. Nevertheless, she failed to win and was involved in a number of controversies resulting in several SPD and Green electors refusing to cast their vote for her.

Until now, only the Free Voters – represented only in the state parliament of Bavaria and projected to send a mere 10 electors to Berlin next February – have officially nominated a candidate: Alexander Hold, a judge who gained national prominence by appearing in court room shows on German private TV station SAT 1, currently serving a local councillor and party faction leader for the Free Voters in the town of Kempten. There is little chance that Hold will gain more than the 10 votes of his party colleagues, but the nomination has already produced some headlines which might benefit the party. It would not be the first time that a party nominates a candidate know for their work on TV – in 2009 DIE LINKE nominated actor Peter Sodann as their candidate for president (he received 91 votes – two more than the total number of DIE LINKE delegates – in the first and only round of elections).

The race for president thus still remains open. In contrast to Estonia – where political leaders find themselves in a similar situation – however, there is still sufficient time for parties to find a candidate. On the other hand, a timely decision could mitigate the election’s signalling effect for the next Bundestag election and give parties more time to focus on their campaign. It is without question that all of them do not want to live with a headache for too long.

Rui Graça Feijó – A New Configuration for Portuguese Semi-Presidentialism?

This is a guest post by Rui Graça Feijó of CES/UCoimbra and IHC/UNLisboa

Recent elections (legislative in October 2015, presidential in January 2016) have changed the political landscape in Portugal. This piece aims to assess their impact upon the configuration of Portuguese semi-presidentialism.

The Portuguese government system has been basically stable since its adoption in 1976. Only once (1982) has there been a constitutional revision that addressed the distribution of powers among state organs. No significant institutional change has occurred since then. Politically, however, the story is more complex.

The 1987 elections returned the first single party majority. This gave the PM a prominent position, which has been characterised as the “presidentialism of prime minister” (Moreira 1989). Marina Costa Lobo (2005) has suggested that the “presidentialization of politics” manifested itself in the enhanced role of a PM who had been anointed with a direct mandate. After 1987, a non-written rule existed whereby the election of parliament was combined with a parallel “election” of the PM, reducing the room for decisions for president and parliament, as if being the leader of the largest party was a sufficient condition for acceding to the premiership. Only one PM failed to meet this criterion (Santana Lopes after Barroso left for Brussels in mid-term), and this was credited with weakening his legitimacy. This rule contrasted with the previous practice (the first parliament saw 4 different PMs). The rationale was that it would counteract the instability of the first years of constitutionalism and offer accrued legitimacy to the leader of the largest party in the context where a new government did not require a positive vote of investiture.

After the 2015 legislative elections President Cavaco appointed a PM who was the leader of the winning (but minority) coalition. The left majority in the House brought this government down. For the first time, the “winner” of an election was defeated in parliament at the beginning of his term. The president reluctantly appointed the leader of the second largest party to form a government with a majority of seats. This was a major novelty. Back in 1982, after PM Balsemão resigned, President Eanes refused to appoint Vitor Crespo who had the support of the majority, and dissolved the House. In 1987, when Cavaco’s minority government was defeated in the House, President Soares refused to appoint the socialist leader, even though he was supported by a majority and called early elections instead. Only in 2004 did President Sampaio accept a new PM without fresh elections – but he made a point of placing the government under special scrutiny and four months later he dissolved parliament. All these instances suggest a critical point in the configuration of Portuguese semi-presidentialism: disposing of majority support in parliament is not a sufficient condition for a PM to be appointed or to remain in office as the notion of “popular election” supposes. It takes the political will of the PR to nominate and maintain the PM in office. This embodies the principle of double responsibility of the PM vis-à-vis parliament and the president (one that is central to president-parliamentary sub-types of semi-presidentialism)

The 2015 elections were held when presidential powers were curtailed as he was serving his last six months in office. Faced with a situation he politically opposed, Cavaco considered alternatives that included keeping the defeated PM as a caretaker until fresh elections could be called, or resurrecting the “governments of presidential initiative” that had been the hallmark of President Eanes’ first term – not unlike solutions found in Italy (Monti) and Greece (Papademos). In the end, he bowed to the parliamentary majority and European pressure on budgetary matters. One of his legal advisers, António de Araujo, claimed that a new configuration of Portuguese semi-presidentialism was emerging: a “parliamentary semi-presidentialism” (2016). However, this may be a hasty conclusion.

For one, Cavaco’s term was coming to an end. If he had still been in office on the day new elections would have taken place, there is no doubt that he would have dissolved the parliament. Secondly, Cavaco imposed strict limits on the government’s programme that were not related to institutional considerations (as President Sampaio had done in 2004), but that related instead to the right-wing agenda he espoused. Finally, the new President, Marcelo Rebelo de Sousa, who was formally supported by PSD and CDS, was elected on a right of centre platform that was politically different from the one espoused by the coalition with the benediction of Cavaco in the previous legislative elections: he has made it known that he intends to exercise all the powers the constitution bestows upon the head of state, distancing himself both from “minimalist” positions that Cavaco is supposed to have upheld and from the conditions he imposed. Even if Marcelo Rebelo de Sousa is not known for the consistency of his positions over time, as far back as 1984 he wrote:

A few months after the constitutional revision the president had the opportunity to exercise three fundamental powers: the power to dismiss the government, the power to refuse the appointment of a prime minister proposed by the parliamentary majority, and the power to dissolve the Assembly of the Republic […] against the opinion of the majority of the Council of State (1984: 57)

This is the view he most certainly still holds of his powers. It came as no surprise that he said he would “review” his support for government in the fall of 2017 when local government elections will be held. This means he has not relinquished any of his prerogatives, including those that refer to the survival of government.

A new configuration of Portuguese semi-presidentialism is thus emerging: both directly elected institutions – parliament and president – have their roles enhanced. The “election” of the PM has lost its importance. It is clear that more than depending on direct popular support, the PM responds politically both to the President of the Republic and the Assembly of the Republic, and both organs are keen to exercise their full competences. Without implying an institutional modification, these developments amount to a new model for Portuguese semi-presidentialism, where the PM is no longer the only central figure.

References

Araujo, António. 2016. “Semi-presidencialismo de assembleia”, in Público, 13 January

Lobo, Marina Costa. 2005. “The Presidentialization of Portuguese Democracy?” in Thomas Poguntke and Paul Webb (eds), The Presidentialization of Politics, Oxford, OUP

Moreira, Adriano. 1989. “O regime: presidencialismo do primeiro ministro” in Mario Batista Coelho (ed), Portugal: o sistema politico-constitucional 1974-1987. Lisboa, ICS

Sousa, Marcelo Rebelo. 1984. O Sistema de Governo Português, antes e depois da revisão constitucional. Lisboa, Cognitio (3rd edition)

Haiti – A country on Autopilot

Joseph Michel Martelly’s presidency ended without a successor being directly elected. The interim president, Jocelerme Privert, has not yet been able to fulfil his mandate to organize new elections. Even though political tensions have somewhat abated, the country is still not out the woods. This post offers a brief overview of the political situation since February, with a focus on the behavior and calculations of the principal actors.

On February 14 when Privert was sworn in to lead the interim government the mandate was clear: He had to complete the electoral process in 120 days. The agreement between then outgoing President Martelly and the Presidents of both the Senate and the Chamber of Deputies clearly stipulated that within this timeframe the interim president had to appoint a new government, reconstitute the Electoral Council (CEP in French), put in place the technical recommendations of the Independent Commision of Evaluation of the elections (CIEVE, in French), and organize the second round of the presidential and parliamentary elections.

It was clear both to Privert and to most of the political actors that it would be impossible to respect this deadline. Indeed, Privert was elected seven days after the departure of Martelly, not within the 48 hours set out in the agreement. The new CEP was installed on March 30, nearly a month after the interim President took office. The CIEVE was put in place on April 14 and handed in its recommendations more than a month later on May 29. What is more, the CIEVE recomended not the continuation of the presidential election, but its cancellation altogether.

The first 120 days of interim president Privert’s office have now passed and he has been unable to fullfill the key objective of the transition: handing over the presidential sash to a newly elected president. The CEP has set the first round of the presidential and parliamentary elections for October 9 and the second round for January 8, 2017. Thus, the transition will have lasted almost 365 days, instead of the 120 previously agreed. In this context, the most important question for the principal actors has revolved around what strategy to adopt given this new timetable.

So far the transition has rewarded some actors and punished others. Some are weaker than when the process began. Others are in better position today than before. Others still are looking for a way to reinter the game, after having previously been pushed out by other actors. For simplicity, I will refer to these three groups of actors as pro-Martelly camp, the International Community, and the Opposition during the Martelly government.

The International Community is the group that has lost out the most during this process. From the start, the International Community (namely the United States of America, the European Union, the OAS and the UN) assumed that they could force the opposition to the Martelly government to accept any electoral results independently of their assesment of the fairness and transparency of the process. After the first round of the parliamentary elections on August 2015, while some key actors in the opposition were denouncing widespread fraud, the International Community supported the CEP. The same situation occurred when the results of the first round of the presidential election were published. The opposition parties took to the streets to denounce the results. Meanwhile the International Community was working behind closed doors to force the result to be accepted. When the first Commision of Evaluation put in place by President Martelly recommended a thorough evaluation of the situation and measures to build confidence in the process, the representatives of International Community looked the other way. They were against the idea of interim president and, naturally, are opposed to the most recent recommendations for new presidential elections.

The representatives of the European Union have left the country to signal their opposition. The US Department of the State has made it clear that it will not support new elections financially. It goes without saying that the decision not to fund the CEP will have important repercussions for the already difficult budgetary situation of the Haitian government. But, it means also that the International Community will have less say in the political process.

The decision of the International Community to turn its back on the electoral process has meant that its protegé, the pro-Martelly camp, also has less power to impose an outcome on its adversaries. The various strategies adopted by this group are good example of how they have gauged their strength. At the beginning they were against any concessions to the opposition. Their analysis of the elections converged with that of the International Community. But, once it was clear the second round of the presidential election would not take place, they supported the interim solution agreed between Martelly and the leaders of the two houses of parliament. Their candidate for the new presidential election, Jovenel Moise, has now been chosen.

The most recent strategy of the pro-Martelly camp has been the decision not to permit a vote in the chambers on the continuation of Privert as interim president. The agreement stipulates that if elections were not held in 120 days, legislators should convene and decide what to do. The pro-Martelly group argues that this should mean the end of the Privert government. However, they do not have enough votes to force out the interim president. Consequently they have decided not to participate in parliamentary meetings. This means that since July 14, there is a president without any legitimacy, waiting to be confirmed by the Parliament.

The former opposition to the Martelly government is in a far better situation than it was before the beginning of the transition. In some measure, it has the control of the state apparatus. But it has two formidable opponents in the pro-Martelly camp and the International Community. The new situation has forced them to evolve their strategy from one of trying to derail the system to one that wants to protect the status quo. They are now more interested in keeping Privert in power than any of the other actors.

The future will show how the situation evolves in Haiti. For the moment, with a president without legitimacy, an International actor with less leverage over the key internal actors, and the pro-Martelly group being branded as corrupt, the country is almost literally on automatic pilot.

Nauru – Waqa government re-elected

Nauru went to the polls on 9 July and returned Baron Waqa’s government for another term. The Pacific island nation has a population of roughly 10,000 (around 8000 registered voters) who elect 19 MPs for three-year terms from multi-seat constituencies by majority vote. There is no formal party system with parliament effectively made-up of 19 independent members. Because Nauru’s president is both head of government and head of state Waqa was re-elected to the post on the floor of parliament by 16 MPs.

Two election observer teams – one from the Pacific Islands Forum and another from the Commonwealth Secretariat – declared the election free and fair, and commended the high voter turnout. It was reportedly the first time in more than a decade that Nauruan elections had been monitored by international observers.

One reason for the heightened interest is that much of the media discussion in the lead up to the election centred on the creeping authoritarianism of the Waqa government (see this blog). Opposition MPs had previously been suspended from parliament – those under house arrest claimed their campaigning activities were curtailed – media commentary was sanctioned and foreign journalists effectively prohibited from entering the country due to high visa fees, and amendments to the criminal code made expressions of ‘political hatred’ punishable by up to seven years imprisonment. Some candidates had their employment contracts terminated – a move commonly believed to be government initiated. The fee for candidate nomination was also hiked to a level that made it prohibitive for many aspirant politicians. This latter measure was contested in Nauru’s Supreme Court, leading to the government eventually dropping the fee from $2000 to $500 (it had previously been $100).

The government has been quick to claim the result as a ringing endorsement of their record and plan for Nauru’s future. In the aftermath of the result Justice Minister David Adeang accused the international media of beating up the accusations against his government as a means of undermining the operation of the Australian Government’s offshore asylum seeker processing centre currently housed on the island. Three of the MPs who had been suspended from the last parliament – Former President Sprent Dabwido, Squire Jeremiah and Mathew Batsiua – lost their seats. Another, Roland Kun, chose not to stand – he has since been granted a New Zealand passport on humanitarian grounds (his Nauruan passport had previously been confiscated on the grounds that he had taken part in anti-government protests and had spoken out against the government in the international media).

Despite the government’s triumphalist tone, this story has a long way left to run. The Australian Federal Police confirmed a week after the election that they were still investigating Getax, the Australian phosphate dealer at the heart of an alleged political corruption scandal. Having left Nauru, Kun is said to be a key witness in that investigation. Needless to say, this is an interesting time in Nauruan politics.

 

Jack Tsen-Ta Lee – Singapore’s Elected President: An Office That Is Still Evolving

This is a guest post by Jack Tsen-Ta Lee in the School of Law, Singapore Management University

Changes made to Singapore’s Constitution a quarter of a century ago brought it further away from the traditional Westminster model which the nation inherited from the United Kingdom, the former colonial power. These amendments created a new type of President – not a full executive head of state, but what might be described as a ‘figurehead-plus’. Now, the Government is proposing to tweak the system further.

Before 1991, the office of the President was a purely ceremonial one, and the officeholder was elected by the Parliament. This meant the President was effectively chosen by the People’s Action Party (PAP), as it has been the ruling political party controlling a majority of the seats in Parliament since 1959.

In fact, for 16 years from 1965 when Singapore became an independent republic, the PAP held every single parliamentary seat. The situation only shifted in 1981, when J B Jeyaretnam of the Workers’ Party was returned to Parliament in a by-election. In the following general elections in 1984 and 1988 Jeyaretnam retained his seat, and was joined in the opposition by Chiam See Tong of the Singapore Democratic Party.

In this political climate, the PAP began to introduce constitutional changes to allow more alternative voices to be heard in the legislature. In 1984 it became possible for a certain number of opposition candidates in a general election who were the ‘best losers’ to be deemed elected as Non-constituency Members of Parliament (NCMPs). At present, the number of NCMPs thus elected is nine less the number of opposition candidates successfully contesting the polls in their constituencies. In 1990 the position of Nominated Member of Parliament (NMP) was created. Up to nine NMPs selected from fields such as culture, industry, community service and the labour movement can be appointed by the President upon nominations made by a special select committee of Parliament.

While NCMPs and NMPs are free to participate in parliamentary debates, they cannot vote on certain important issues, including constitutional amendments, financial matters, and votes of no confidence in the Government. Moreover, they are powerless to block the passage of bills they are allowed to vote on. PAP MPs presently outnumber them as the party holds 83 of the 101 seats in Parliament.

Some critics have denounced the NCMP and NMP schemes as a ploy by the PAP Government to dissuade voters from electing opposition MPs, since the schemes ensure a token presence of potentially non-PAP views in the legislature. Nonetheless, NCMP seats have been a platform for opposition politicians to maintain visibility in public life, which may have helped them to win in later general elections. NMPs have also raised a number of important issues for discussion in Parliament.

‘Second key’

These changes to the constitutional order culminated in the Elected Presidency scheme. The PAP described it as a safeguard against a “freak election result” – one in which the PAP no longer forms the Government. In that scenario, the Elected President holds a ‘second key’ over certain significant matters, the ‘first key’ being wielded by the Government. Transforming the office into one directly elected by the people would give the President moral authority to disapprove of government decisions, if need be.

No longer a purely ceremonial head of state, the President has discretionary power to veto attempts by the Government to deplete the nation’s past financial reserves (those built up in previous parliamentary terms); and to effect unsuitable appointments to or dismissals of key public officers such as judges, the Attorney-General, the Chief of Defence Force, and the Commissioner of Police. In addition, the President may authorize the Corrupt Practices Investigation Bureau to conduct investigations in the face of a contrary command by the Prime Minister.

The President also holds a casting vote over whether someone should be detained without trial under the Internal Security Act, or should have a restraining order issued against him or her under the Maintenance of Religious Harmony Act. This vote may only be exercised if there is a difference of opinion between the Minister for Home Affairs who wishes to proceed against the person, and the advisory body appointed to make a recommendation to the President on the matter.

To a degree, some of the President’s discretionary powers only have a signalling effect, serving to highlight to the electorate the Government’s actions. If the President decides to veto such action against the recommendation of the Council of Presidential Advisers, the Constitution authorizes the Government to override the veto with a parliamentary resolution supported by at least two-thirds of all the elected MPs. This override mechanism applies to the President’s fiscal powers and powers over public service appointments and dismissals. Given the PAP’s dominance in Parliament, it is a foregone conclusion that such a resolution would pass. In any case, since the Elected Presidency scheme came into being, no holder of the office has yet exercised his veto.

Further changes

In January this year, Prime Minister Lee Hsien Loong announced in Parliament that he would be appointing a constitutional commission chaired by Chief Justice Sundaresh Menon to consider further changes to the Elected Presidency scheme. In particular, he said the qualifying criteria to be President might need to be more stringent, and that some mechanism might be required to ensure that members of minority communities are elected as President from time to time.

Among the qualifications for being elected President set out in the Constitution is the requirement that a person must have held, for not less than three years, one of several high offices, including that of cabinet minister, Chief Justice, Speaker of Parliament, Attorney-General, or Permanent Secretary of a government ministry. Alternatively, Article 19(2)(g) states that a person is qualified if he or she has held office for the requisite period:

(iii) as chairman of the board of directors or chief executive officer of a company incorporated or registered under the Companies Act (Cap. 50) with a paid-up capital of at least $100 million or its equivalent in foreign currency; or

(iv) in any other similar or comparable position of seniority and responsibility in any other organisation or department of equivalent size or complexity in the public or private sector which, in the opinion of the Presidential Elections Committee, has given him such experience and ability in administering and managing financial affairs as to enable him to carry out effectively the functions and duties of the office of President.

The Prime Minister noted the S$100 million sum was to ensure that Presidents are “people with high senior management competence and experience, as they have to assess and decide on financial proposals involving billions of dollars”, and are able to hold a demanding appointment. However, “over 25 years, our economy has grown, government spending and reserves have increased, and the size and complexity of the organisations subject to the second key of the President have increased many fold”. Thus, he suggested the figure might need upwards adjustment.

The Prime Minister added:

The President is the Head of State, he represents all Singaporeans in our multi-racial society. I think it is important that minorities have a chance to be elected President, and that this happens regularly. […] But in future, when Presidential Elections are more likely to be contested, even hotly contested, I believe it will become much harder for a minority President to get elected.

He therefore submitted there should be a procedure “to ensure that minorities can be periodically elected if we have not had a particular minority as President for some time”.

The Constitutional Commission, only the second to be convened since Singapore’s independence, issued a call for submissions on the matter and held four public hearings in April and May. I was one of those who made a submission and appeared before the Commission, and also attended a number of the hearings. Judging from the questions asked by Commission members, it appears that serious consideration is being given to pushing up the financial criterion, perhaps by several hundred million Singapore dollars; and to having occasional elections reserved for minority candidates if no President from a minority community has been President for a certain number of terms. Quite a few of those appearing before the Commission were asked to comment on the latter suggestion, originally made by Dr Mathew Mathews of the Institute of Policy Studies (IPS).

My own view is that the two main issues the Commission is focusing on pull in opposite directions. Increasing the financial threshold to be President reduces the potential pool of candidates, and might make it harder for minority candidates to qualify. Only senior executives who are Singapore citizens may stand for office, and many will probably not wish to do so anyway. Of the citizens willing to throw their hats into the ring, because almost 75% of Singapore residents are Chinese, only a low percentage are likely to be from the Malay, Indian and other minority communities.

While diversity in institutions of governance is vital, legislating some sort of reserved election might also imply that minority candidates cannot succeed on their own merits without a leg-up, a point made to the Commission by Dr Gillian Koh and Mr Tan Min-Wei, also from the IPS. Perhaps a ‘softly, softly’ approach is warranted, at least for a start. We could experiment with having an independent body reach out to business and professional associations, and other relevant organizations, and encourage minority candidates to participate in presidential elections.

The Constitutional Commission is expected to report in the latter half of the year, and if changes are recommended the Government may seek to implement them before the next presidential election due in 2017. It will be interesting to see how such changes affect the election. Regardless, it seems the office of the Elected President continues to evolve.

Estonia – Six weeks before the presidential elections, there is no clear front-runner

The date for Estonia’s next presidential election has been set for 29 August 2016, with 24 September determined as a possible follow-up date should voting in parliament prove inconclusive. Incumbent Toomas Hendrik Ilves is not allowed to run again, having served two consecutive terms from 2006-2011 and 2011-2016. Over the last year, a field of potential candidates has blossomed, yet until now the it is still difficult to tell the wheat from the weeds or to speculate who will become Ilves’ successor.

Election of the Estonian president 2006 in the electoral college | © Riigikogu 2006

Election of the Estonian president 2006 in the electoral college | © Riigikogu 2006

The Estonian president is elected by parliament and except for the 1992 election – when the first round was exceptionally held by popular vote with a runoff held in parliament – parliament has three attempts to elect a candidate with a two-thirds majority of its members, i.e. 68 out of 101 members. If parliament fails to elect a candidate, the election passes on to an electoral college consisting of all members of parliament and roughly two-and-a-half times as many representatives from local parliaments and city councils (the number of representatives is based on population size – in 2016 there will be 234 local representatives). In the electoral college, only an absolute majority is necessary to elect a candidate in two rounds of voting. New candidates can be suggested in the first and second round of voting in parliament and in the first round of voting in the electoral college, making it possible for surprise candidates to emerge (and in the case of Arnold Rüütel, president 2001-2006, even win) at a relative late stage.

Parties, candidates and the public

Until now, there is only one confirmed candidate for the presidency: The Centre Party has nominated Mailis Reps, a 41-year old former minister of education and deputy chairman of the party who supports popular presidential elections. Interestingly, Reps beat long-time party leader and one-time Prime Minister Edgar Savisaar in the party internal ballot for the nomination by a 90:78 margin. The Centre Party however remains an outcast in the Estonian parliament – despite its continuous electoral success – and is eyed with suspicion by other parties due to its close links with the Russian minority and contacts to Vladimir Putin’s ‘United Russia’. Thus, it is unlikely that Reps will eventually take the presidency.

The names of several other candidates have been mentioned over the last year, yet as 21 members of parliament are needed to receive a nomination, only the Reform Party of Prime Minister Taavi Roivas would be able to formally nominate another candidate of their own accord (the internal nomination of Mart Helme by the ‘Conservative People’s Party’ which holds only seven seats in the Riigikogu is thus largely inconsequential). Roivas on the other hand will likely not try to claim the presidential office for his own party but give it to either of the junior coalition partners, the Social Democrats or the Pro Patria and Res Publica Union. The Social Democrats have informally nominated Riigikogu speaker and veteran politician Eiki Nestor as their own candidate, while the Pro Patria and Res Publica Union want to put forward former Chancellor of Justice, Allar Jõks. Public opinion however still complicates the situation for the coalition. Despite having never been formally nominated or endorsed, foreign secretary Marina Kaljurand (independent; nominated to the cabinet by the Reform Party) has topped opinion polls for months as the public’s preferred president. Former Prime Minister and EU Commissioner as well as Reform Party co-founder Siim Kallas has also declared his willingness to be a presidential candidate but has not received any endorsement from the party so far. A joint candidate of Reform Party, Social Democrats and Pro Patria and Res Publica seems to be the most likely outcome of the election, yet it will likely only be decided in the electoral college (until now, Ilves’ reelection in 2011 was the only time that the Riigikogu elected a president without the help of the college).

Marina Kaljurand (middle) with Prime Minister Taavi Roivas (l.) and president Toomas Hendrik Ilves (r.) | © president.ee

Marina Kaljurand (middle) with Prime Minister Taavi Roivas (l.) and president Toomas Hendrik Ilves (r.) | © president.ee

The future of the presidency: Popular elections unlikely

President Ilves, although not always unequivocally liked by parties and citizens, leaves large foot steps to follow. He is an internationally renowned expert of cyber security and as a former foreign minister and ambassador to the United States brought a great deal of diplomatic skill to the role which helped him to make the country considerably more visible. The discussion about a future president is very much influenced by that role, with Prime Minister Roivas and others stressing that any potential candidate would need to have international experience and know their way around issue of foreign and defence policy (especially the latter has been rising in importance for the small Baltic nation in the wake of the Ukraine crisis and disputes with Russia over borders). In turn, Mailis Reps, who already as a education minister was criticised for lack of experience, has little to offer in this regard and thus stressed that in her view the president should be more active in domestic politics – a view not shared by the majority of politicians and very much counter to the development of constitutional practice over the last 20 years as my own research showed. Reps proposal to introduce popular presidential elections, a change equally favoured by Mart Helme of the ‘Conservative People’s Party’ is thus also unlikely to be implemented – previous projects for constitutional amendments proposed by the Centre Party as well as the first presidents, Lennart Meri, were all unsuccessful.