Category Archives: Asia

Rui Graça Feijó – Timor-Leste upcoming presidential elections: Snow White and the Seven Dwarfs?

Rui Graça Feijó is Lecturer at CES/UCoimbra and IHC/UNLisboa

Timor-Leste will hold its fourth presidential elections on March 20. In spite of the lack of opinion polls, it is possible to suggest that they will reveal a new political landscape, the extent of whose novelty is still to be decided. To start with, these elections will confirm the Timorese “rule” that no incumbent succeeds in obtaining a second term in office

The field of candidates is composed of 8 individuals who submitted at least 5,000 endorsements with a regional distribution of at least 100 in each of the country’s 213 districts. This is the same number as in 2007, and 5 less than in 2012. Underneath the “normality” of this picture, a major change is occurring: there is a very strong candidate alongside seven others with little or no chance of actually fighting for anything more than a modest result, at best an honourable second. The presidential elections will thus fulfil two purposes: one is the official task of choosing a president; the other is to help contenders ascertain their hold on popular vote and their chances in the legislative elections scheduled for June, allowing for tactical decisions. On top of that, internal party struggles, a show of personal vanity, and access to the generous public support to candidates (at least US$ 10,000 per candidate regardless of their electoral score) will play a minor part in the circus.

FRETILIN proposed Lu Olo, its chairman (not its leader, the secretary-general Mari Alkatiri), as it had done in 2007 and 2012. Both times Lu Olo came first on the initial round only to see all other candidates rally against him in the decisive one. He has now received the formal backing of the largest parliamentary party, CNRT, and most of all, of the charismatic leader of the young nation, Xanana Gusmão. He is “Snow White” surrounded by seven dwarfs.

The main rival seems to be António Conceição. He is a member of Partido Democrático, a party that suffered a heavy blow with the death of its historical leader Fernando Lasama de Araújo (2015), followed by internal strife. The party as such ceased to be part of the governmental coalition, although his ministers were allowed to remain in functions as “independent”. António Conceição is one of those, and his bid at the presidency is partly a test for a presumed bid for the party leadership. He may have the backing of a new party, Partido da Libertação do Povo, inspired by the outgoing president Taur Matan Ruak, who declined to seek re-election and is widely believed to be preparing a bid for the premiership (if the presidential elections allow for such presumption).

Former minister José Luis Guterres, whose party Frenti-Mudança is the smaller one in the governmental coalition, has also declared his intention to run.

Two non-parliamentary parties have also fielded candidates. Partido Trabalhista supports its leader, Angela Freitas, and Partido Socialista Timorense backs António Maher Lopes. Although PST has no MP, its leader, Avelino Coelho, holds an important position in government.

A former deputy commissioner in the Anti-Corruption Commission, José Neves, is among those who seek the popular vote without party support – a circumstance that in the past has been critical in winning the second ballot, as candidates in these circumstances were able to build coalitions of all the defeated runners against the “danger” of a partisan candidate. Two others fall in this category: Amorim Vieira, of whom very little is known apart from the fact that he lived in Scotland where he joined SNP; and Luis Tilman, a virtually unknown individual who also presents himself as “independent”.

A few things emerge from this picture. Against what is expectable in two-round elections in fragmented party systems (Timor has 4 parliamentary parties, about 30 legal ones, and the 2012 elections had 21 parties or coalitions running), which induce the presentation of candidates on an identity affirmation basis in view of a negotiation for the second ballot (as was the case in Timor in 2007 and 2012), this time the two largest parties negotiated a common candidate before the first round, significantly increasing the likelihood that he will be elected on March 20.

It thus highly probable that Timor-Leste will have for the first time a president who is a member of a political party. The experience of three non-partisan presidents comes to an end not because the rules of the game have been changed, but rather because the political scenario has moved considerably. Back in 2015, a government of “national inclusion” replaced the one led by Xanana with the backing of all parties in the House, even if FRETILIN, who offered one of its members for the premiership, still claims to be “in the opposition”.  The move has been called by a senior minister “a transformation of belligerent democracy into consensus democracy”. Although the outgoing president is supposed to have facilitated this development, he soon turned sides and became a bitter and very outspoken critic of Rui Maria de Araújo’s executive and the political entente that sustains it.

Now the two major partners of the entente agreed to go together to the presidential elections, signalling that they wish to continue the current government formula after this year’s cycle of elections (even if the place of smaller parties in the coalition is not secure, and a question mark hangs above the score that the new opposition PLP may obtain). More than this, they assume that the role of the president has somehow changed from being the guarantor of impartiality discharging a “neutral” function as “president of all Timorese” to be a player in the partisan game, throwing his political and institutional support behind the government coalition.

A question emerges when one considers that CNRT is the largest party in the House, and that it has relinquished the right to appoint the prime minister (who is a member of FRETILIN acting in an “individual capacity”) and now forfeits the chance of securing the presidency, offering it to its rival/partner. Will it maintain this low-key attitude after the parliamentary elections if it remains the largest party?

The CNRT/FRETILIN entente suggests that Timorese politics lives in a double stage: the official one with state officers discharging their functions, and the one behind the curtains where de facto Xanana (who is simply a minister) and Mari Alkatiri (who holds a leading position in a regional development entity) tend retain the reins of actual power. In this light, public efforts to promote the “gerasaun foun” (younger generation) in lieu of the “gerasaun tuan” (the old guard that was already present back in 1975) by offering the premiership and other jobs to those who are relatively younger needs to be carefully hold in check.

In Dili, I was told that Timorese presidents tend to suffer the “syndrome of the wrong palace”. This expression is meant to convey the idea that they become frustrated with the (allegedly limited) powers bestowed upon them by the constitution, and consider that the legitimacy conferred on them by a two round election that guarantees an absolute majority is sort of “kidnapped”. They are prisoners in their palace. They believe they have the right to determine strategic orientations and cannot find the actual means to implement them. So they look at the premiership in the palace next door. Xanana stepped down from the presidency and launched a party and a successful bid to head government; Taur Matan Ruak is trying to follow suit – but his chances are not deemed so high. If Lu Olo manages to get elected, the sort of relations he is likely to establish with the prime-minister are totally different, as he is compromised with “one majority, one government, one president” – only the president is not likely to be the one who leads. Will this resolve the syndrome issue? Interesting times lay ahead.

Presidential profile – APJ Abdul Kalam, former president of India

Avul Pakir Jainulabdeen Abdul Kalam, commonly known as APJ Abdul Kalam, was sworn in as India’s 11th president on July 25, 2002. A space expert and science administrator by profession, he became the third Muslim (in a predominantly Hindu country) and the first scientist to assume the presidency. He was also the first, and so far, the only person to have stepped into the office without a background in politics.

Presidents in India are indirectly elected by a complex arithmetic of proportional voting. Members of both houses of parliament and all state legislatures are eligible to vote in such elections. Any person aged 35 or more, and eligible to be a member of the lower house of parliament may stand as a candidate. Elections, though, are mostly contested along party lines, and the composition of the electorate and the method of voting mean that the outcomes are often known well in advance.

The center-right Bharatiya Janata Party (“Indian Peoples Party) (BJP) and its National Democratic Alliance, then in power in New Delhi, along with some regional parties nominated Kalam’s candidature on June 10, 2002. A week later, on June 18, 2002, the Congress Party, the principal opposition at the center, also announced its decision to back him. His nomination came months after a state in Western India was rocked by riots along religious lines. Commentators speculated if a Muslim had been nominated to reset India’s (tolerant) image, nationally and beyond.

Kalam, expectedly, won his election by a massive margin, and was sworn in on July 25, 2002. He would remain in office for 5 years.

The Indian presidency, it is often said, is modeled after the British monarchy. At an obvious level, the comparison is misleading. Britain is a monarchy, India is a republic. The president, the head of state, is elected. Indeed, the Indian president is the only nationally, albeit indirectly, elected office under the Constitution. He or she has claim to a degree of constitutional and electoral legitimacy monarchies don’t.

Nonetheless, the Indo-British comparison remains the standard template both in academic and judicial thinking.

Perhaps the most important power of the president is to appoint a prime minister. Ordinarily, this is an easy task. Imported British conventions dictate that the leader of the party with a majority in the lower house of parliament must be invited to form the government. But there are exceptions, and Kalam faced a peculiar challenge two years into his term.

In May 2004, the Congress-led United Progressive Alliance won an upset election victory against the BJP-led National Democratic Alliance. The Congress party elected its leader, the Italian-born Sonia Gandhi, to be the leader of the parliamentary party.

Immediately, protests broke out. Demonstrations and counter demonstrations happened. To many it was a matter of national pride. Adapting from the US Constitution, only naturally born Indian citizens should be prime ministers, they argued. The Indian Constitution, of course, imposes no such limitation.

Kalam had a decision to make. As he weighed his options, some speculated about his reservations in appointing Sonia Gandhi as the prime minister. Ultimately, he didn’t need to decide. Gandhi, enlightened by her “inner voice”, refused the party’s nomination, and instead suggested economist Manmohan Singh as the prime minister. (Singh would hold the prime ministerial reigns for two full terms.) In his account of the presidency, Kalam, for his part, denied claims about his reservations about Sonia Gandhi. He would have appointed the leader of the majority party, whoever that be, he wrote.

President is the head of state, and all decisions are taken in his name. Judicial opinions and academic commentary, once again, interpret the powers of the presidency through a British lens. A president exercises formal powers, it is said; the real powers vest with the council of ministers headed by the prime minister. The latter decides, the president delivers. His discretion is limited, so goes the conventional view.

Presidents may have limited discretion, but they also have endless time in which to decide those matters. And President Kalam demonstrated the enormity of the passive powers of his office. He did so while dealing with mercy petitions of convicts on death row. Ordinarily, mercy petitions are decided by the council of ministers, and passed on to the president for approval.

Kalam, strongly opposed to the death penalty, simply sat on the petitions. He did nothing about them. Of the 21 petitions forwarded to him during his term in office, he sat on all but one.

Occasionally, his inaction attracted controversy, but Kalam remained steadfast. An unequal application of the death penalty (almost all death row convicts were impoverished citizens), he said, was a violation of the Constitution.

Occasionally, his action attracted controversy, too. In India, the central government may dismiss state governments under certain circumstances, impose president’s rule, or dissolve the legislature and initiate new elections. The decision to dismiss a state government is taken by the council of minister but must be approved by the president. In 2005, Kalam signed off on a controversial dismissal by the UPA government, something, he later regretted. He should have studied the matter further, he said, instead of hurrying it. (The dismissal was challenged in the supreme court, and eventually overturned.)

Kalam’s most challenging moment arrived in 2006 after both houses of parliament enacted a self-serving piece of legislation. It retroactively removed disqualifications many members of parliament suffered by holding “offices of profit” – something the Constitution bars. Kalam agonized over the Bill at his desk. He found it unprincipled and hasty. He formally returned the Bill to the two houses asking them to reconsider – the first and only time a president in India has done so. The houses didn’t reconsider; they simply reenacted it. Once again, it landed before Kalam. Unwilling to precipitate a constitutional crisis, he eventually gave his assent. In his autobiography, he called this the “toughest” decision of his presidency.

As he neared the end of his term, questions arose about re-nominating him to the presidency. An organic groundswell of support appeared both in print and electronic media. Newspapers carried large numbers of op-eds and letters to editors expressing support for Kalam. Online petitions swelled with support. For a man who never stood for direct elections, Kalam was a home run; he would have swept away any opposition in a direct contest.

The NDA, his original proposer, extended its support. The Sonia Gandhi-led Congress Party, though, refused. We may never know why.

Fali Nariman, India’s preeminent jurist voiced what millions of Indians felt when he wrote of Kalam’s departure: “We will miss him — that unconventional figure who became India’s First Citizen in July 2002. Never pompous, not even ‘presidential’, he walked into the Palace at Raisina Hill with few worldly goods — he now leaves with even fewer … We could have asked him to stay: but we didn’t … Of him it can be said, as Winston Churchill once said about his departed king: ‘He nothing common did, or mean, upon that memorable scene.’ Memorable scenes are rarely re-enacted, but they are always remembered.” (Fail Nariman, “We’ll miss you, Dr Kalam”, Indian Express, July 23, 2007)

From his first days in office, Kalam was massively popular. Old and young, across political lines, identified with him, and endearingly referred to him as the “people’s president”. His simplicity, his infectious, if inchoate, optimism was his strength. India’s only bachelor president, and in his 70s, he was widely popular with students, and often interacted with them.

A lifelong teacher, poet, and the author of many books, Kalam maintained associations with several universities in India and elsewhere after his presidency. Perhaps fittingly, he died (of a heart attack) while lecturing to a group of students at the Indian Institute of Management, Shillong. He lived in the classroom and died there, too.

At least the for the foreseeable future, APJ Abdul Kalam will remain India’s most endearing apolitical politician.

South Korea – The 2017 Presidential Candidates … so far…

 

Presidential elections in South Korea are scheduled for December 2017, but the National Assembly’s impeachment of President Park Geun-hye on Dec 9, 2016, with 234 to 56 votes (with two abstentions and seven invalid), potentially brings the election forward if the Constitutional Court supports the impeachment. The Court has 180 days to decide, and six justices must support the impeachment or it fails. If the Court supports impeachment, then presidential elections must be held within 60 days. Not surprisingly, presidential aspirants are lining up to declare their candidacies in preparation for a shortened primary and election campaign. Perhaps curiously, the prevailing favorites have largely refrained from formal announcements and have only hinted at running.

The contenders who have announced so far are:

  • Gyeonggi Gov Nam Kyung-pil, Barun Party, which is the splinter from the Saenuri party comprising the non-Park faction. Nam was a five-term who has criticized the Park government for its authoritarian-leanings. The governor is also one of the first party heavyweights to quit the Saenuri party in November, 2016, and join the opposition to demand President Park’s impeachment.
  • Yoo Seong-min, Barun Party, is the former Saenuri floor-leader of the non-Park faction who lost that position following a clash with President Park and subsequently also lost the party’s nomination at general elections.[i] Yoo was folded back into the party after he won his seat as an independent. He is one of the 12 members of the crisis management council that included former chair of the Saenuri Party, Representative Kim Moo-sung, to bring party members into supporting President Park’s impeachment.
  • Rhee In-je, a senior Saenuri party leader who was a member of the Supreme Council, and who has declared his candidacy three other times since 1997.
  • South Chungcheong Gov. Ahn Hee-jung, Minjoo Party, who at 52 represents one of the new generation of leaders from the liberal camp seeking higher political office to run the country.
  • Seongnam city Mayor Lee Jae-myung, Minjoo Party, a progressive who has revived the city’s economy and put in place an extensive welfare program in the city. Lee was among the few politicians who took part in the large protest rallies in Seoul against President Park beginning in October.
  • Sim Sang-jeung, leader of the Justice Party, a minority party with six seats in the legislature.
  • Representative Ahn Cheol-soo, 2012 presidential contender, co-founder of the People’s party and former chair. In 2014, Ahn co-founded the NPAD with the Minjoo Party, but then split from the alliance in spectacular fashion in December 2015 to form the People’s Party. Ahn dropped out of the presidential race in favour of Moon Jae-in in 2012 so as not to split the vote for the liberal camp; given the many charged conflicts between the two in the last few years, it will be interesting to see if Ahn – who is polling at fourth place in public opinion surveys – will wrestle for the liberal mantle till the end.

The current two front-runners have not been as forward in their candidacies, to avoid a potential backlash if they are seen as excessive politically ambitious. Still, both have signalled interests in the presidential race:

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[i] O. Fiona Yap, 2015. “South Korea in 2015: Battling to Set the Stage for Elections.” Asian Survey, Vol. 56 No. 1, January/February 2016; (pp. 78-86) DOI: 10.1525/as.2016.56.1.78

South Korea – Impeachment of the President: Critical Citizens and Political Will

On December 9, 2016, the South Korean legislature voted 234 to 56 (with two abstentions and seven invalid votes) to impeach the sitting president, Park Geun-hye. Two-thirds of the legislature – or 200 votes – is required for impeachment to succeed. The opposition and independents added to only 172 votes, so that at least 28 members of the Saenuri Party would have to cross the aisle in order for impeachment to pass. As late as December 2, 2016, it was unclear that there would be enough votes for impeachment: President Park’s offer to resign on November 29 threw a wrench in discussions between the three opposition parties, and within the Saenuri party. Yet, in a week, bolstered by the large and growing protests against the President Park, the opposition pulled together to pass the impeachment vote, the second successful impeachment of a sitting president since Korea’s democratization in 1987. The successful vote, then, offers a useful study of the opposition in the legislature, and the role of the opposition in the electorate in delivering the necessary political will.

The opposition in the legislature comprises three political parties – the main opposition Minjoo Party with 123 seats, the People’s Party with 38 seats, and the Justice Party with 6 seats – and independents; it also includes the non-Park members of the Saenuri Party. The Minjoo Party and the People’s Party had fractured from the former opposition New Politics Alliance for Democracy (NPAD); among the independents, some are disgruntled members of the NPAD while some are the disenfranchised members of the Saenuri Party who left following the candidate-nomination fights for general elections in April, 2016. Among the opposition, then, political hostility reigned high, so that the camaraderie that led to the fragile agreement between the three opposition parties cracked easily, such as when Minjoo Chair Choo Mi-ae attempted to broker a deal for the president’s resignation.

In the Saenuri Party, the non-Park faction had suffered a series of crippling setbacks in standoffs with the President that were generally resolved in favour of the President since 2015.[i] Indeed, even following the surprising electoral trouncing that led the ruling party to lose its majority in the legislature, the non-Park members were stymied in their efforts to build – or revive – a viable alternative to the pro-Park faction. Still, in this political crisis, non-Park members rallied to constitute 12 members of the crisis management council – it includes former chair of the Saenuri Party, Representative Kim Moo-sung, and former floor leader, Representative Yoo Seung-min – to bring party members into supporting impeachment. But, the strength of the President Park’s advocates in the party must be noted: even with the President’s impeachment, the new floor leaders of the Saenuri Party are from the pro-Park faction.

But for the united and expanding opposition in the electorate, the tenuous union of the opposition in the legislature may have crumbled in the face of further compromises from the executive. Critical citizens – citizens who question government authority or adopt unconventional participation, including protests, to influence government policies – have consistently battled to keep their concerns on the political agenda in South Korea.[2] This is no mean feat, given the discord among the opposition in the legislature, and notwithstanding concessions and compromises from the executive. Their steadfastness – hitting a record two million in weekly protests since October – buttressed the resolve of the opposition parties in the legislature, and likely convinced wavering members of the Saenuri Party to support the non-Park vote for impeachment.

Indeed, many predict that this opposition in the electorate will be critical in swaying the mostly-conservative Constitutional Court, which will have the final say in the impeachment process. Six Constitutional Court justices must support impeachment before the President is removed from office; the quorum for binding vote is seven. The Court has 180 days to decide on the impeachment; however, two of the nine justices are scheduled to retire in March 2017, which increases the odds that six of the remaining seven will vote to support impeachment. Still, the opinions of the justices will be made public; this, together with the strong public will against the President, may deliver the impeachment.

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[i] O. Fiona Yap, 2016. “South Korea in 2015: Battling to Set the Stage for Elections.” Asian Survey vol 56 no 1: 78-86

[2] See Norris, P. (2002). Democratic Phoenix. Political Activism Worldwide. New Social Movements, Protest Politics and the Internet: Cambridge: Cambridge University Press; Kim, S. (2010). Public trust in government in Japan and South Korea: Does the rise of critical citizens matter? Public administration review, 70(5), 801-810; Sander, T. H., & Putnam, R. D. (2010). Still bowling alone?: The post-9/11 split. Journal of Democracy, 21(1), 9-16.

 

 

South Korea – President Park in the battle of her career: Lessons for Legislative and Electoral Oppositions around the World

On November 13, 2016, a series of protests culminated into a million-strong demonstration in central Seoul to demand President Park Geun-hye’s resignation. It is the largest protest to hit the country in 30 years, even larger than the pro-democracy demonstrations that ushered the liberalization of the autocratic political system in 1987. And, it was not limited to the capital: smaller-scale protests were held in cities across the country. The immediate trigger to this is the influence of Park’s confidante, Choi Soon-sil, on the President’s personal and state decisions that ranged from outfits to presidential appointments. This is not new: the President – widely considered unconsultative even within her own ruling Saenuri party – has faced criticisms and political challenges resulting from the control and influence of the coterie of friends and advisors who limit access to her since she took office in 2012.[i] What is new is the magnitude and determination of the protests: until now, the fractured opposition – in the legislature and in the electorate – has failed to pose a viable challenge to the government. Clearly, the tide has turned, so that the President – who as Queen of Elections has consistently weathered these influence- and corruption-scandals – is facing considerable odds to hang on to her position. It pays to examine how the opposition in the legislature has failed in the past and how the electorate has stepped up to lead this battle to crest.

The opposition in the legislature suffered – and continues to suffer – from a volatility that has challenged its institutionalization. The current legislature has two main opposition parties, the Minjoo Party with a plurality of 123 seats, and the People’s Party with 38 seats. Both parties constituted the New Politics Alliance for Democracy (NPAD) in April 2014; their split on December 13, 2015, was surprising but not unexpected: it underscored the feuds – frequently open – within the alliance, as well as between factions in the Minjoo Party. Still, the alliance split seemed to foreshadow further splits within the Minjoo Party and looked set to hand the electoral advantage to the ruling Saenuri Party. Fortunately for the opposition, and likely unfortunately for the Saenuri Party, the ruling party’s supermajority prospects – in the face of the opposition split – crumbled. In particular, party discord between the pro-Park and the non-Park factions led to candidate-nomination fights and party departures of senior Saenuri party members to run as independents in the elections. In this context of these conditions, the general elections for April 2016, led to the following outcomes: opposition Minjoo Party with the plurality of 123 seats, Saenuri Party with 122 seats, People’s Party with 38 seats, Justice Party with 6, and 11 independents.

Yet the electoral outcomes speak less to the parties than to the electorate. Electoral turnout was close to 60% in April, a low figure that, nevertheless, exceeded previous elections. Importantly, young voters featured prominently in the 2016 polls: 79.5 percent in their 30s, 72.9 percent of those in their 40s and 53.7 percent in their 50s voted for the opposition. Among those over 60, 59.3 percent cast ballots for the ruling party, compared to 35.2 percent for an opposition party.

In democracies, political parties represent an important development where they displace personalistic politics or candidate-centered politics to perform as recurring sources for aggregating voters’ interests into cogent political agendas based on programmatic contestation that undergirds executive-legislative relations. However, party roles are a-changing and not just in the emergent democracies. In the case of South Korea, the current political climate has foisted responsibilities onto the electorate, where a lack of a viable opposition to take aim and provide an electable alternative to the government means that the civil society pressures must persist.[ii]

Korean society has responded to the call: from the large and regular rallies in the aftermath of the Sewol tragedy to maintain public awareness, to the smaller drives against the tax reform debacle of 2015, civil society has pressed the government for accountability at considerable expense. It is this level of public activity and commitment that underpins hopes that substantive changes are in store for the country.

Indeed, but for this public activity, the on-again-off-again liaisons between the different factions within the main opposition party, the Minjoo Party, as well as across opposition parties, may not have materialized: as had occurred often in the past, the divided opposition turned on itself as the newly-minted leader of the Minjoo Party arranged to meet with President Park over the scandal. The leader, Representative Choo Mi-ae, narrowly averted further fallout by cancelling the meeing. Still, the objections to the meeting underline how easily the opposition in the legislature fractures, particularly in the face of President Park’s concessions. And, President Park has expanded efforts to mollify the opposition: she has reversed her previous opposition to constitutional revisions – a key demand of non-Park supporters in her party, as well as among the oppositionand nominated key aides to the late liberal presidents Roh Moh-hyun and Kim Dae-Jung as Prime Minister and chief-of-staff.

Notwithstanding these legislative-executive ebbs and flows, public activity has remained the mainstay that underpins the current resolve to force the President to be accountable. The public activism is fueled from different wellsprings. Still, the opposition parties in the legislature are taking cues off this public resolve to present a rare concerted front. Oppositions across nations may do well to take note. And, take heart.

  1. [i] O. Fiona Yap, 2015, “ South Korea in 2014: A Tragedy Reveals the Country’s Weaknesses
  2. [ii] O. Fiona Yap, 2016, “South Korea in 2015: Battling to Set the Stage for Elections”

Taiwan – Softly, Softly, The President Navigates DPP and Cross-Strait Relations

Presidents who are not ceremonial executives generally come under scrutiny following the first 100-day honeymoon after inauguration, when the policy horizon is no longer paved with unencumbered goodwill from the electorate, legislator, or international community. President Tsai Ing-wen is no exception. Indeed, as the executive with majority party support of the erstwhile opposition Democratic Progressive Party (DPP) in the legislature, the first woman elected to the presidency in Taiwan is likely to be closely watched to see if she is able to implement her policy agenda. That such success evaded the former president elected from the DPP, President Chen Shui-bian, whose agenda was stonewalled by the Pan-Blue majority in the legislature, likely compounds interest and attention on President Tsai. Yet, having a legislative-majority support comes with challenges: in particular, China is keeping close watch on if, when, or how the executive and legislature in Taiwan may adopt policies that veer away from the “one China” 1992 consensus. There is, then, much to appreciate in President Tsai’s ability to maintain her steadfastness that balances the demands of some of the core constituencies of the DPP on the one hand, and the demands and pressures of China on the other.

The DPP, like most parties, comprises factions, and a core bloc in the party favours independence. President Tsai’s previous run as presidential candidate for the DPP in 2012 drew on this core, and she lost out to former President Ma Jing-yeou in that race. The second time around in the 2016 elections, President Tsai was careful to apply the lessons learned: she has been steadfast in maintaining a cautiously-worded stance regarding relations with China that acknowledges the importance of the 1992 meeting that gave rise to the “one China” consensus but without explicitly recognising the one China principle.

The moderates in her party support the delicate stance: in the July 2016 party congress, a motion was made to remove the objective of Taiwan independence contained in Article 1 of the party’s charter. The new resolution, if passed, will change Article 1 to read: “. . . it is the party’s objective to establish cross-strait status quo. . .” However, at the same congress, the pro-independence faction also moved to change the country’s official title from the Republic of China to Taiwan, with the reminder that the DPP has legislative majority and control of the executive to effect changes. The second motion was also sent up to the DPP Central Executive Committee for review.

Possibilities such as the second motion are concerning to China, and China’s response has been to tighten the diplomatic screws while calling out President Tsai’s failure to acknowledge the 1992 consensus. There are concerns that China may tighten the economic screws, which will hurt Taiwan’s sluggish economy. As an indication, tourists from China have fallen by 30 percent since President Tsai’s inauguration, and that has made an impact on the tourist industry in Taiwan, as protestors highlight.

It is clear that this is no easy path to trudge: Taiwan’s unique standing in the international community is bound in its relations with China, so that cross-strait relations reverberate onto domestic agenda and the government’s policy-effectiveness. China has been very clear on what it needs to see from President Tsai, in order to maintain ongoing political peace and economic stability. Meanwhile, the electorate is beating the drums for a quick economic turnround, but is also resistant to painful reforms that are likely to be part of the turnaround. How well the President’s softly, softly approach, to the factions in her party, to the electorate, and to China, will clearly be tested thoroughly.

India – Of the People, for the People, by the President: The Constitutional Status of the National Capital Territory of Delhi

States and Union Territories of India

India is made up of two types of mega-administrative units: “States” and “Union Territories”. The States are fully functional politico-administrative units. They are endowed with constitutionally entrenched legislative and executive powers. They function through an executive that is responsible to a popularly-elected legislature. Governors formally head these States. Real executive powers, though, vests with the ministerial councils headed by the Chief Ministers. India, it is often said, is a federation – or something akin to it: These States make it so. There are 29 such States in India now, Telangana being the latest one, created in 2014.

Then there are the Union Territories, currently, 7 in all. These units don’t have elected legislatures or a “responsible” executive. They are ruled by the President of India. Article 239 of the Constitution empowers the President to do so: “…. every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.” Article 240 clarifies that the President may make regulations for the “peace, progress and good government of the Union Territories”. If India only had Union Territories, it would unquestionably be a unitary, as opposed to a federal, system.

This neat division between States and Union Territories took some doing. The original Constitution, compelled by colonial realities, drew a complex internal map of India: 4 different types of administrative units were recognized with distinct powers and functions. A simplified map was unveiled in 1956. India was reorganized mostly along linguistic lines, and the current system of States and Union Territories was introduced. At that point in time, India had 14 States and 6 Union Territories.

The National Capital Territory of Delhi: A Mixed Category

The division, though, isn’t neat. Not all Union Territories are the same: Some are more than others. Introduced in 1962, Article 239A authorized Parliament to create legislatures or ministerial councils or both for Union Territories with such powers and functions as it deems fit. Doing so would make a Union Territory more like a State. Parliament exercised its power once: 1987. The former French colony of Pondicherry (now Puducherry) in Southern India was given a legislature and a ministerial council, and it functions through these organs.

A more important change was introduced in 1992. It had to do with Delhi. Article 239AA was inserted into the Constitution amending the status of the Union Territory of Delhi. It would now be called the National Capital Territory of Delhi (NCTD), and would have a Legislative Assembly and a Council of Ministers to “aid and advise” the Lieutenant Governor (LG), the formal head. NCTD was different from Pondicherry. The State-like organs in Pondicherry were created by an Act of Parliament; a constitutional amendment inserting Article 239AA achieved the same for NCTD. Consequently, Delhi has a constitutionally provided for legislative assembly and a Chief Minister-led council.

The Council of Ministers rule their respective States. The President, or his appointed administer, rule the Union Territories. What, then, is Delhi? Who rules it?

In February 2015, a political start-up, Aam Aadmi Party (the Common Man Party), took Delhi by electoral storm. It won 67 of the 70 seats in the Legislative Assembly, and roared into office. With more than 95 percent of the seats won, it created an electoral record of sorts in India. AAP’s victory came as a rude shock to the Bharatiya Janata Party (Indian People’s Party) which currently holds power at the center (the federal government) in New Delhi.

Skirmishes soon broke out. Delhi Chief Minister, Arvind Kejriwal, went about his business. He had the people’s mandate, he said, to implement his manifesto promises. The BJP objected. Soon the central government, through the President, began intervening in the functioning of the NCTD Government. It is a Union Territory, the central government claimed, and, therefore, the President retains overall say and supervision.

In the States, except when specifically provided, governors exercise executive power on the “aid and advise” of ministers; they do not exercise discretion. If NCT is more like a State, then, clearly, the Assembly and the Council of Ministers will govern like they do in other States. But if Delhi, despite its trappings, is no more than a Union Territory, naturally, the President will rule. Which is it? In February 2016, the matter wound up before the Delhi High Court

Characterizing Delhi: The People v. The President

In August 2016, the High Court, in Government of National Capital Territory, Delhi v Union of India (2016) concluded that the NCTD is a Union Territory. Despite the Assembly, Council of Ministers and the people’s mandate that underpins these offices, the President, or his appointed administrator, is the ultimate ruler.

Both States and the NCTD have elected assemblies and responsible governments. In addition, States have Governors while the NCTD has a Lieutenant Governor. But these gubernatorial offices aren’t constitutionally analogous, the High Court held. Governors have limited discretion, and they are specifically enumerated in the Constitution. The LG, however, has much wider discretion: Under Article 239AA (4), his discretion extends to matters on which he must act “by or under any law” in addition to the Constitution. If the ministers and the LG disagree on any matter, the LG shall refer it to the President whose decision has shall be final and binding. And in the interim, the LG has the authority to act contrary to the advice tendered by the Council of Ministers if it is necessary for him to take immediate action. As a result of this verdict, all ministerial decisions must be communicated to the LG, and he is at liberty to accept or reject such decisions.

In arriving at this conclusion, the High Court dug up both precedents and a range of secondary sources including the Balakrishnan Committee Report and parliamentary debates to which responsible government in NCTD owes its origins. The concerns outlined in these secondary sources were many, and not unreasonable. New Delhi is the capital of India; it houses the offices of the national government, the upper echelons of the armed forces, and the Supreme Court. This is in addition to embassies, diplomats and other international bodies that participate in the national life of India in New Delhi. Full statehood would make it impossible for the Central Government to exercise control over the territory in which it is housed, thereby making it harder to govern. Retaining control over the territory is the reasonable thing to do, the secondary sources argued. The High Court agreed.

But the bigger question remains: If all ministerial decisions in NCTD must ultimately meet with presidential concurrence, why have an elaborate government and Assembly? What point does it serve? Either these organs and offices matter, or they don’t. Imposing the President as the constitutional overlord, it is clear, relegates the NCTD to Union Territories that do not have these elaborate trappings. If the Delhi High Court is correct in its reading of Article 239AA, the provision – the offices it creates and the confers it ostensibly confers – is entirely redundant. The people, their mandate, don’t matter; only the President does.

The Philippines – President Duterte Takes Aim … (and Vigilantes Deliver …)

President Rodrigo Duterte’s candidacy when he was campaigning for office was, euphemistically speaking, colourful. Not one to shy from controversy – indeed, he seemed to thrive on generating them – Duterte as presidential candidate likely riled as many voters as he won over. The final election tally showed 16.6 million votes for Duterte, more than 6.5 million higher than the next candidate, Mar Roxas; however, that constitutes only 39 percent of the votes cast. Perhaps as an olive branch to the other 61 percent of the voters, Duterte promised that he would be “presidential” once he takes office, and temper his language, delivery, and modus operandi. That change remains pending, as the recent kerfuffle from President Duterte’s impudent reference to President Obama reveals. Meanwhile, however, the Duterte presidency is on track to deliver on some of the more controversial, and concerning, promises.

Top on that list of the President’s promises are the war on drugs and law-and-order, particularly organized crime. The President pledged in his first State-of-the-Nation address that “we will not stop until the last drug lord, the last financier and the last pusher have surrendered or been put behind bars or are below the ground if they so wish.” As if to make good on that pledge, on August 8, 2016, the President named 159 “narco-officials” – mayors, judges, congress representatives, and police involved in the drug trade – and gave them 24 hours to surrender or be tracked down by security forces; on that cue, police and the military disarmed and relieved those in armed services on that list, and pulled out security escorts for those in government.

Indeed, backed by rewards and the President’s assurance of protection, almost 3000 killings have occurred since the President took office, with about half attributable to vigilantes, the Philippine National Police reported on September 10, 2016. The peril of being gunned down has led an estimated 700,000 to surrender, far exceeding the government’s capacity to rehabilitate or support. Notwithstanding, the President has refused to back away from sanctioning extrajudicial killings; instead, while expressing “cause for concern” regarding the vigilante murders, the Presidential Office has declared the war on drugs a success. And, President Duterte has hit back at the senate inquiry into extrajudicial killings with accusations that the chair, Senator Leila de Lima, is linked to drug syndicates.

On other fronts, President Duterte has also made good on his promise to address corruption in the country, by declaring all appointive offices vacant on August 22, 2016, so that the positions may be staffed with appointments made by the Presidential Management Staff. The move affected thousands, and left in office only those appointed after June 30. The President also followed up on his pledge to work for former President Arroyo’s release from prison: on July 30, the Supreme Court ordered her release on the grounds of insufficient evidence against her. And, President Duterte has approved former President Marcos’ burial at Libingan ng mga Bayani, or “heroes cemetery,” despite protests against that decision. That decision has been put on hold by the Supreme Court, which is hearing arguments on that decision.

The President is largely unfettered: he enjoys the support of a super-majority in the legislature, and has a 91 percent trust rating (by way of contrast, Vice President Leni Robredo has 62 percent). His proposed constitutional change into federalism for the Philippines is unlikely to hit obstacles: to that end, the President has moved towards a constitutional assembly, rather than a constitutional convention, so that lawmakers will draft and approve the changes. The use of a constitutional assembly has ignited concerns that legislators may carve a constitution that will save their jobs rather than the country, but the President has assured the public that there is nothing to worry: he will treat self-serving lawmakers “like drug addicts.” A threat that few have difficulty envisioning, it seems.

 

Rui Graça Feijó – Timor-Leste’s upcoming elections and the prospects for semi-presidentialism

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

Timor-Leste is preparing for next year’s elections (presidentials in March/April, legislative in July). To a large extent, these will be centred around the president’s opposition to the ruling majority as from late 2015.

In 2012, Taur Matan Ruak (TMR) – the last leader of the guerrilla and Chief of Staff of the armed forces – ran as an “independent supported by Xanana’s party, ousting the incumbent Ramos-Horta in the first round and defeating Fretilin’s Lu Olo in the second. In preparation for those elections, some members of Fretilin were inclined to give TMR their support based on his track record of good relations with the party. The party’s leadership chose otherwise, but the seed for cooperation was there. It came as no surprise then that the major political event of TMR’s presidency was a broad parliamentary agreement that opened up the doors for Fretilin to join the government. In February 2015, Rui Maria de Araujo, a member of Fretilin acting in a non-party capacity, was sworn in a PM of the 6th Government – a government of “national inclusion”. For the first time since independence, all parliamentary parties had a seat in government[1]. TMR is widely credited with this development, and he came out in favour of it when he said:

“How does a democracy work without opposition? Democracy is not an end to Timor, it is a means. Between a classical form of democracy and another one consisting of reinforcing social and political cohesion, we have chosen the latter.”[2]

However, the president kept his “independent” persona: he toured more than 350 of the country’s 440-odd sukus (villages), thus decentralising contact with citizens (“It is incredible what I see there. The government has done its job. But people always want more.”), and made sure his channels of communication via the media were kept open (and thus opposed as much as he could alterations to the freedom of the press bill).

By the end of 2015 the political scenario had evolved. Parliament passed a bill making it more difficult to register new political parties. The president held back the law until a party widely tipped to be his own creation had the chance to register under the old rules. A few weeks later, he vetoed the 2016 state budget that had been passed by a unanimous vote in the House, and appealed to parliamentarians to introduce substantial changes, arguing for his vision of the country based on contacts with the population. They took a blind eye to the president’s recommendations and insisted on the very same budget. The rupture between the president and the government majority was consummated. In hindsight, it is possible that the president believed the change of government also meant a new political orientation that never materialized.

Last February, using his constitutional powers, the government proposed to extend the mandate of the Chief of Staff of the armed forces, who had been TMR’s second in command. The president disagreed – a decision within his powers. However, he went two steps further: he dismissed the military commander and appointed a new one without consultation with government – and this was not within his constitutional powers. A serious conflict ensued, the result of which is still pending. The president stepped back from the dismissal and the new appointment, but has thus far not resolved the issue in spite of lengthy negotiations.

More recently, the parliamentary majority enacted a law on the composition of the National Electoral Commission which met with TMR’s opposition, but which he was again forced to sign after a second parliamentary vote. TMR expressed the hope that the new body would not be implemented before the next round of elections – as the Commission is dependent on the government and parliament, excluding civil society from its composition, thus being prone to manipulation by those who already have seats – but it seems the old members have been notified of the termination of their term in office.

TMR has made it known that he would not seek re-election, creating a situation in which none of the first three presidents was elected for a second consecutive term. It is believed he will follow Xanana’s example of creating his own political party and fight the legislative elections after he steps down. An “executive syndrome” seems to have struck again in a country whose president is entrusted with significant but not executive powers.

In spite of serious confrontations between the president and the government (after the 2006 crisis), including in prominent place the definition of the president’s competences in matters of national defence and security that Lydia M. Beuman (2016) considered the “Achiles heel” of semipresidentialism in young democracies, but which have extended to other realms, there is no sign that the Timorese will place a revision of their constitutional system on the agenda for the upcoming elections. The debate will continue on the profile of presidential powers (Beuman 2016, Strating 2016) which, in my view, are quite considerable but lack executive competences. In a way, the “pouvoir d’empêcher” overweighs the competences for initiative, which nevertheless are present in the array of his powers (Feijo, 2016).

After having elected three “independent” presidents, entertaining the idea that there was a clear difference between the realm of presidential powers and that of government, the 2017 elections could finally see the election of a party candidate, as Fretilin seems to insist that it is now “Lu Olo’s turn”. However, it may also be that a strong “independent” candidate may emerge (rumours have it that former president Ramos-Horta is considering his bid). Without constitutional changes, the upcoming elections may bring substantial innovations nonetheless.

References

Beuman, Lydia M., 2016. Political Institutions in East Timor. Semi-presidentialism and Democratisation. London & New York, Routledge

Feijó, Rui Graça, 2016. Dynamics of Democracy in Timor-Leste. The birth of a democratic nation, 1999-2012. Amsterdam, Amsterdam University Press

Strating. Rebecca, 2016. Social Democracy in East Timor. London & New York, Routledge

[1] Later, PD would be removed from the governing coalition.

[2] http://www.rtp.pt/noticias/mundo/timorenses-tem-estado-a-aprender-fazendo-afirma-taur-matan-ruak_n874728 accessed July 8, 2016

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.