Category Archives: premier-presidentialism

Moldova – Cohabitation as an inter-executive struggle with dashes of judicialization

By the end of September, the President of the Republic of Moldova was again the center of a political standoff that has been the bane of the country for quite some time. For the fourth time since October 2017, the constitutional court suspended the President (Igor Dodon from the PSRM, Party of Socialist of the Republic of Moldova) temporarily. Three of these four times were due to the refusal by the President to appoint ministers elected by parliament. This newly found instrument of temporarily getting rid of the president as a veto player has profound institutional and legal ramifications and questions the power of this directly-elected president. To address these issues, this post presents the constitutional court’s involvement as a case of “judicialization” (see e.g., Hirschl 2008) of core political questions. This form of judicialization is not necessarily comparable to judicialization under democracy, as it only emphasizes the involvement of the court in “key political issues” (Mazmanyan 2015, 200) and not a transfer of power from parliament to the court. The refusal of the President to appoint a cabinet member is, at its core, a decision of checks and balances and should not be influenced by the judiciary. In the following, I will describe the constitutional background and process of suspending the president with its most recent recurrence in September 2018 as well as the short and long-term implications arising from this power struggle.

The 1994 Moldovan constitution established a semi-presidential system, more specifically a premier-presidential system. The presidency enjoys an array of de jure power tools and also ceremonial responsibilities. Among the important instruments to discipline the fragmented parliamentary parties is the president’s right to dissolve parliament after two failed investiture attempts. Furthermore, and this is of importance here, the president appoints the cabinet after a parliamentary vote of confidence and also after a cabinet reshuffle upon the proposal of the prime minister (Art. 98) (see Fruhstorfer 2016). This provision is particularly important, as it was initially introduced as part of the 2000 constitutional amendment that formed a parliamentary system. Parts of this amendment (in particular the election of the president) were declared unconstitutional in 2016. The original 1994 constitution allowed the president much less involvement in the process by only being able to accept the oath of newly elected cabinet members. Thus, the 2000 amendment clarified and increased the power of the president, a provision that was not changed in the process of declaring parts of the 2000 amendment unconstitutional. There was no specific constitutional provision that stipulated how many times the president can refuse the appointment. Yet the January 2018 ruling of the Constitutional Court de facto amended the constitution. In their ruling on the second temporary suspension, the court specified that the president can only decline a proposal for a cabinet appointment once and must appoint a possible second candidate. Failing to do so is a violation of presidential duties (Constitutional Court 2018). Failing to fulfill these duties is then the justification for a temporary suspension. And indeed, the constitution envisions this occurrence, but the procedure of including the constitutional court is highly unusual, as it is the sole prerogative of parliament (Art. 89).

The way temporal suspension was and is used in Moldova comes close to the observation Mazmanyan (2015, 208) offers for the post-soviet area in general: “The record of judicial involvement in post-Soviet politics shows that higher courts get meaningfully activated only in situations witnessing a true political competition and uncertainty about the winner in the competition.” This form of judicialization is however a new trend in Moldova, the constitutional court was until recently the example of a non-politicized court among the countries in the post-soviet region. With the now fourth decision of temporally suspending the president – in case he does not follow suit – the court embraces a trend of incidental decision making (Mazmanyan 2015, 208) in competitive political situations. This intervention exposes the court to the danger of being exploited and manipulated by political forces and facing the challenging time when “judicial involvement in politics is more often than not a byproduct of political pressure or manipulation of constitutional law and of the constitutional judiciary” (Mazmanyan 2015, 200). It is unclear whether the often claimed “direct political instruction” of political forces (read Vlad Plahotniuc, chairman of the PDM, Democratic Party of Moldova) applies in Moldova. In any case, the decisions made by the constitutional court since March 2016 indicate a problematic politicization of the judiciary that decides on political issues and uses its rulings to overcome political competition. This was seriously criticized in the most recent report of the Bertelsmann Transformation Index (BTI 2018).

What seems like an “inter-institutional deadlock” (Popșoi 2017) in a period of cohabitation was long rumored to be only a sham to disguise how Vlad Plahotniuc and President Igor Dodon have consolidated their power with the help of each other. Yet, the political standoff between the government and the constitutional court on one side and the president – at least superficially – on the other side, seems to be a mundane power struggle. Yet, mundane does not make it any less dangerous. The court’s involvement in this power struggle and the following judicialization of key issues of the competition inherent to a premier-presidential system are seriously damaging the political institutions and does not bode well for the future democratic development.

Literature

BTI (2018): Country Report Moldova, in: https://www.bti-project.org/fileadmin/files/BTI/Downloads/Reports/2018/pdf/BTI_2018_Moldova.pdf [last accessed October 8, 2018]

Constitutional Court (2018): Press Release. The President of Moldova may only once decline PM’s proposal of Cabinet reshuffle, in: http://constcourt.md/libview.php?l=en&idc=7&id=938&t=/Media/Noutati/The-President-of-Moldova-may-only-once-decline-PMs-proposal-of-Cabinet-reshuffle/ [last accessed October 8, 2018]

Fruhstorfer, Anna. (2016). Moldova. In Constitutional Politics in Central and Eastern Europe (pp. 359-387). Springer VS, Wiesbaden.

Hirschl, Ran. (2008). The judicialization of mega-politics and the rise of political courts. Annu. Rev. Polit. Sci., 11, 93-118.

Mazmanyan, Armen. (2015). Judicialization of politics: The post-Soviet way. International Journal of Constitutional Law, 13(1), 200-218.

Popșoi, Mihai. (2017). Moldovan President Igor Dodon Suspended by the Constitutional Court. https://moldovanpolitics.com/2017/10/25/moldovan-president-igor-dodon-suspended-by-the-constitutional-court/ [last accessed January 15, 2018]

On defining regime types (II) Clauses and Conditions

Steffen Ganghof has recently introduced the concept of semi-parliamentarism. For him, parliamentarism is where all the directly elected chambers of the legislature (whether one or two) have the constitutional right to hold the government collectively responsible, whereas semi-parliamentarism is where only one of the directly elected chambers of the legislature can do so. In other words, under semi-parliamentarism there are two directly elected chambers, but one of them (usually the upper house) does not play a part in the collective responsibility of the PM and cabinet. There are currently two semi-parliamentary countries in the world – Australia and Japan.

I like this definition. It allows us to reliably classify a set of countries merely by applying certain rules to publicly available constitutional information.

Two points. First, I understand why Steffen wants to identify semi-parliamentarism as a separate category, but I wonder if it might not be better to think of it as a sub-category of parliamentarism. This allows us still to see the interesting constitutional feature of the Australian and Japanese cases without losing sight of the basic feature of parliamentarism in both, namely the government’s survival in office is not separate from the legislature. If so, we might think of Australia and Japan as being semi-parliamentary parliamentary regimes. (That is not a typo).

Second, it raises the question of how many consequential classificatory clauses we should include when defining regimes. If we stick to the separate origin and survival of the executive and legislature, we get the three standard categories (presidentialism, semi-presidentialism and parliamentarism). We’ve now added a semi-parliamentary clause. Yet, the semi-parliamentary clause also applies to semi-presidential regimes too. So, the Czech Republic could be classed as a semi-parliamentary semi-presidential regime. Actually, though, we might think of the Czech Republic as a semi-parliamentary premier-presidential semi-presidential regime (i.e. a semi-parliamentary sub-type of the premier-presidential sub-type of semi-presidentialism). We could go further still. There are currently only two semi-parliamentary regimes in the world, but there is a potentially important classificatory difference between them. In Japan, the lower house of the legislature can be dissolved early but the upper house cannot, whereas in Australia there can be a double dissolution of the two houses. So – and bear with me – let’s add a classificatory clause and label Japan a semi-fixed regime and Australia a flexible regime. If so, then Japan would be a semi-fixed semi-parliamentary regime or, perhaps, a semi-fixed semi-parliamentary parliamentary regime. Accordingly, the Czech Republic would be a semi-fixed semi-parliamentary premier-presidential semi-presidential regime.

There is a beautifully Linnaean aspect to this exercise that I find extremely attractive. The classification of the Czech Republic as a semi-fixed semi-parliamentary premier-presidential semi-presidential regime is reliable. It is based merely on the application of certain rules to publicly available constitutional information. There’s another aspect to this Linnaean-type classificatory exercise that could also be attractive. It’s not impossible to think that it might have empirical implications. Perhaps the Czech Republic’s combination of constitutional features is consequential relative to countries with a different combination of features. We would need some theories to tell us what we might expect from any particular combination relative to others. But we might end up with some hypotheses that could be empirically tested.

That said, I doubt that the classification of the Czech Republic as a semi-fixed semi-parliamentary premier-presidential semi-presidential regime is going to catch on very soon. More than that, there is no particular reason why we could not add other classificatory clauses too. Last week, I discussed the addition of a super-majority clause to constitutional classifications. It would be easy to think of other clauses that could be added. However, by the time we combine classificatory clauses, we can quickly end up with very small numbers of real-world examples. The number of semi-parliamentary parliamentary regimes in the world is already only two. The number of semi-fixed (and fixed) semi-parliamentary regimes in the world is just one. The number of semi-fixed semi-parliamentary premier-presidential semi-presidential regimes is also only one (I think). This is not empirically helpful.

The only way to reliably classify regimes is through the application of certain rules to publicly available constitutional information. Only by doing so can we avoid subjective, contestable, sometimes even esoteric country classifications. For sure, if we rely on only a small number of classificatory clauses, the resulting regimes can include a very heterogenous set of countries that render empirical application problematic. However, if we add more clauses, then we have a more homogenous set of countries in each category, but we can very quickly end up with the n = 1 problem that also renders empirical application problematic.

To me, the solution is to accept that there is a basic Linnaean-like classificatory exercise. This exercise is purely taxonomic. It does not necessarily generate categories that are empirically useful, but then that is not its purpose. This is how ‘Duverger’ problem was solved 20 years ago when it came to defining semi-presidentialism. It is also to accept, though, that there is a separate empirical exercise. Here, we need to be pragmatic. Sometimes, the Linnaean-like classificatory categories may be useful empirically, but sometimes they may not. So, we have theories whereby it can still make sense for us to compare the effects of presidentialism relative to parliamentarism, as well as premier-presidentialism relative to president-parliamentarism. However, I cannot imagine a theory whereby it would make sense for us to compare the effects of the heterogenous set of semi-presidential countries relative to anything else. Equally, comparing the effects of semi-parliamentary countries relative to others is problematic when currently the n = only 2. That said, we can, for example, compare the effects of semi-presidentialism relative to parliamentarism conditional upon some measure of presidential power. This condition allows us to disaggregate the heterogenous set of semi-presidential countries in a way that doesn’t undermine the Linnaean-Like classificatory exercise and that could still be empirically useful. By the same token, we can certainly have theories that tell us what the relative effect of semi-parliamentarism might be, even if the number of cases is currently so small that valid conclusions about those effects are difficult to reach.

Semi-presidentialism, premier-presidentialism and president-parliamentarism – A new country-years dataset

This new dataset provides time-series, cross-sectional data for the presence of both semi-presidentialism and the two sub-types of semi-presidentialism – premier-presidentialism and president-parliamentarism – since 1900. The dataset uses the same country names, country years, and country ids. as the V-Dem data set, allowing them to be easily merged.

The dataset (v2.0) is available here.

There are two codings of semi-presidentialism in v2.0.

In sp1, semi-presidentialism is defined as the situation where a country’s constitution establishes both a directly (or popularly) elected president and a prime minister and cabinet that are collectively responsible to the legislature (Elgie 2011). This coding includes cases where a constitution requires a super-majority for the dismissal of the prime minister and cabinet by the legislature.

In sp2, semi-presidentialism is defined as the situation where a country’s constitution establishes both a directly (or popularly) elected president and a prime minister and cabinet that are collectively responsible to the legislature by no more than a vote of an absolute majority of one or more houses of the legislature. In other words, this coding excludes cases where the PM and government can be held collectively accountable only through a super-majority vote in the legislature.

In sp1, the following countries are classed as semi-presidential, whereas in sp2 they are not: Algeria (all years), Burkina Faso (1977-80), Burundi (1992-96), Cameroon (all years), Central African Republic (2016), Egypt (2007-11), Kyrgyzstan (1996-2007), Madagascar (all SP years since 1996), Mali (all years), Republic of Congo (2016), Rwanda (all years since 2003), Togo (all years), Tunisia (1989-2001), and Vietnam (all years).

The presence of semi-presidentialism (both sp1 and sp2) is coded as 1, its absence as 0. The start year is the year of the introduction of semi-presidentialism in the constitution if the date is on or before 30 June. If the start date is 1 July or later, then the following year is recorded as the first full year of semi-presidentialism. The end date is recorded for the year that the constitution ceased to be semi-presidential at whatever point in the year it ended. The end of semi-presidentialism is marked by a constitutional change. This can be a constitutional amendment introducing another type of system, or a suspension of the constitution.

This version also codes the premier-presidential and president-parliamentary sub-types of semi-presidentialism. The definitions are:

  • President-parliamentarism is a sub-type of semi-presidentialism where the prime minister and cabinet are collectively responsible to both the legislature and the president.
  • Premier-presidentialism is a sub-type of semi-presidentialism where the prime minister and cabinet are collectively responsible solely to the legislature.

These sub-types were first identified by Matthew Shugart and John Carey. The above definitions are consistent with Shugart and Carey (1992).

In the dataset, pp1 and pp2 code premier-presidentialism as 1 and president-parliamentarism as 2. If a country is not semi-presidential, then the coding is 0. All pp1 codings are based on the definition of semi-presidentialism in sp1. All pp2 codings are based on the definition of semi-presidentialism in sp2.

If there are any mistakes, then please let me know (robert.elgie@dcu.ie). If there are any questions, please contact me at the same email.

Please cite the dataset as:

Robert Elgie (2018), Semi-presidentialism, premier-presidentialism and president-parliamentarism – A new country-years dataset [Blog post, 3 April]. Retrieved from http://presidential-power.com/?p=7869.

References

Elgie, R. (2011), Semi-presidentialism: Sub-Types and Democratic Performance, Oxford: Oxford University Press, 2011.

Shugart, M. S. and J. M. Carey (1992), Presidents and Assemblies. Constitutional Design and Electoral Dynamics, Cambridge: Cambridge University Press.