Monthly Archives: May 2015

Romania – President’s veto on Forestry Code sparks first conflict with prime minister

In the first five months of his term, President Iohannis has asked parliament to re-examine eight bills. This is by no means an unusual level of presidential activism during a period of cohabitation, as the bar was set high by his predecessor. However, the president’s veto on the Forestry Code stands out because it triggered not only one of the first serious clashes with the prime minister, but also a strong public reaction and a change in the president’s approach of publicising the way in which he uses the formal power to either promulgate or return laws to parliament.

One of the first bills President Iohannis sent to parliament for re-examination in late March 2015 was the Forestry Code. One of the provisions singled out for reconsideration regarded the introduction of a 30% threshold on the amount of a certain type of wood that single companies can process. According to the president’s re-examination request, the new bill ran counter to European Union competition law as it aimed to limit the economic activities of some companies. However, the decision to veto this law was not accompanied by a public statement or motivation, in spite of a vigorous and years-long public debate in Romania about massive deforestation and foreign lobbying in the forestry industry.

As it happened, the Austrian-based Holzindustrie Schweighofer, one of the largest wood processing companies in Romania, had been lobbying against the new Forestry Code using the same arguments. Several weeks after the president returned the bill to the parliament, the Environmental Investigation Agency (EIA) accused Schweighofer officials of accepting illegally harvested wood and promising bonuses to the sellers. The revelations prompted country-wide protests against both the government, for allowing foreign companies to destroy Romania’s forests, and the president for delaying the enforcement of a bill that aimed to prevent foreign monopoly over the forestry industry.

A public spat soon erupted between the prime minister and the president as well, after the former claimed that the decision to veto the forestry bill had been influenced by Liberal leaders after private meetings with the Austrian company. President Iohannis was uncharacteristically vehement in his reaction, as he asked the chief of the Romanian Intelligence Service (SRI) to check the premier’s statements and threatened legal action if they proved wrong.  Soon afterwards, both of them took steps to put illegal logging at the top of the political agenda: the premier announced an emergency decree to temporarily ban exports of unprocessed wood, while the president tabled an analysis of illegal deforestation in the next meeting of the Supreme Council of National Defence (CSAT).

Interestingly, the controversial association between the president’s veto and foreign lobbying in the forestry industry has also led to a reconsideration of the way in which the head of state informs the public about his actions. In a press conference called shortly after three parliamentary committees rejected his re-examination request, President Iohannis announced that in the future he will explain publicly decisions to promulgate, veto, or challenge the legality of important bills. He also clarified that the decision to return the Forestry Code to parliament was motivated by a formal notice from the Competition Council, adding that he was not planning to ask a Constitutional Court ruling on the bill.

Moreover, apart from discussing other bills he promulgated or was prepared to challenge, the president also spoke about bills he would veto if passed by parliament in current form. Specifically, President Iohannis warned that he would not promulgate amendments to the Criminal Code that protected MPs from investigation and was ready to challenge the law at the Constitutional Court.

In the future it will be interesting to follow if such warnings of imminent veto power use and public justifications of re-examination accompanied by amendment suggestions have a better change of increasing the president’s influence over the legislative process.

Constitutional Reform in Ukraine: Past and Present

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On Friday, May 15th, the newly established Constitutional Commission of Ukraine held its fourth plenary meeting. The Commission has been working on a very tight schedule since it was established by the President in March. Despite a number of ceasefire agreements, the military conflict in the East of the country is on going. The hopes of ending it any time soon rest in large part on the constitutional reform. The law on decentralisation will also need to be ready and approved by Parliament in time for the upcoming local election currently scheduled for October 2015.

The Commission is headed by the Chairman of the Parliament of Ukraine, Volodymyr Groysman. It also includes 59 representatives of the Academy, the Judiciary, political actors and civil society organisations as well as 13 representatives of international organisations such as the UN, EU, Council of Europe and OSCE.

The work of the Constitutional Commission is divided into thematic areas, each assigned to a separate Working Group. The three themes are (1) Decentralization and division of powers, (2) Judiciary, and (3) Fundamental Rights and Freedoms. Following the forth meeting on May 15th, the head of the Commission announced that the draft amendments on the decentralisation of power were 70% ready. This suggests that the commission is considering each area consecutively rather than discussing all amendments as a single package.

In recent months Ukraine has been working particularly closely with Poland, especially in the area of decentralization of power. Ukraine is not a stranger to considering foreign constitutional models. During the drafting of the 1996 Constitution, members of the Constitutional Commission were quite vocal about borrowing constitutional provisions from abroad. In fact, the references were so frequent that the Commission instituted a rule that required speakers who reference a specific country to detail its legal provision and cite the precise article from the law in question [1].

In our working paper on diffusion of constitutional provisions, Zachary Elkins and I find that Ukrainian delegates referred to foreign countries at a rate of 10.3 per ten thousand words. How should we think about the magnitude of these quantities? Our calculations show that references to foreign countries were about as common as references to central principles such as “democracy” and “freedom,” which were mentioned 9.6 and 3.6 times per ten thousand words, respectively.

Ten thousand words is about the length of a typical scholarly article, but still, word counts can be hard to intuit. According to our calculations, if one were in attendance at these meetings, one could expect to hear a reference to a foreign country a bit more than five times per hour [2].

How closely the currently discussed constitutional amendments will resemble any given foreign model remains to be seen. But the currently released information offers some further preliminary support for the theories of constitutional diffusion. We, of course, eagerly await whether and when the transcripts of the meetings of the current constitutional deliberations will be made public to see if and how any other foreign constitutional models have been discussed.

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[1] Golovatyj, Sergij. 1995-1998. Constitution of Independent Ukraine. Kyiv: Ukrainian Legal Foundation.

[2] Chernykh, Svitlana and Zachary Elkins. 2015. “Endorsements, Warnings, and Diffusion: References to Foreign Experience in Constitutional Deliberation.” Working Paper.

 

Poland – Incumbent Komorowski loses second round of presidential elections to opposition party challenger

On Sunday, 25 May, Poland held the second round of presidential elections and elected Andrzej Duda, a 42-year old MEP from the right-wing ‘Law and Justice’ party (PiS), thus ousting incumbent president Komorowski. Although Komorowski had gone into the presidential race as the clear favourite he was only the runner-up in the first round two weeks ago and failed regain sufficient ground in the run-off. The election of Duda hails a new phase cohabitation with the government of Ewa Kopacz (Civic Platform – PO) and is likely to influence to outcome of the parliamentary elections in October this year.

Election winner Andrzej Duda (PiS) celebrates with his family | © andrzejduda.pl

The victory of Andrzej Duda in the first round was a hard blow for incumbent Komorowski who left his election party (together with Prime Minister Ewa Kopacz and other VIPs) shortly after the announcement of the first exit poll. While his challenger Duda celebrated and immediately returned to his campaign on the ground by giving out coffee to commuters in Warsaw the next morning, Komorowski – whose camp was visibly unprepared for the result – waited until later in the day to pick up his campaign. He initiated a referendum on the introduction of single-member electoral districts – which had been one of the key propositions of third-placed candidate Pawel Kukiz – and the abolition of party financing by the state as well as the interpretation of tax law to the taxpayer’s benefit. Although presidential activism for campaign purposes not unheard of – some authors have suggested that part of presidents’ incumbency advantage stems from their ability to affect or avert policy change – the initiation of such a step almost immediately before the run-off appears to be unprecedented in Europe. Overall, the referendum (now likely to be held in early September this year) together with the following negative campaigning were evidence of desperation on the part of Komorowski’s team.

In another (somewhat surprising) turn, however, Komorowski emerged as the winner of the two TV debates held between him and Duda on 17 and 24 May. Yet the president eventually failed to sway voters and grant him another term. On the evening of the election, the publication of exit polls and results was delayed by 90 minutes after a polling station had to be momentarily closed following the (natural death) of an 80-year old woman and the voting time for the 600-odd voters in the district was extended. [1] Duda eventually received 51.55% of the vote (increasing total votes from 5,179,092 to 8,630,627) and Komorowski 48.5% (increase of total votes from 5,031,060 to 8,112,311) at a turnout of 55.5%, slightly up from the 2010 election. The results of the exit poll suggest that Duda not only managed to receive the majority of votes from third-placed candidate Kukiz and other right-wing candidates, but also from those who voted for the PSL (which has been the PO’s junior coalition partner since 2007) in the last parliamentary elections.

presidential elections in poland 2015 - result 2nd round

Duda’s election is the beginning of another phase of cohabitation between president and government. Duda has shown himself to be significantly more critical towards the EU and neighbour Germany (although German-Polish relations have flourished since Duda’s party left the government in 2007) as well as more hawkish towards Russia. Given the president’s role in international affairs, this may well lead to conflicts with the government. During the election campaign, Duda also promised to reverse the increase in the retirement age, yet while he can suggest legislation to parliament, such a bill would be unlikely to pass. Nevertheless, given that Duda will only be inaugurated in August, there will be little time for conflict before the parliamentary elections scheduled for October.

Current polls still see Prime Minister Kopacz’s PO and Duda’s PiS neck-to-neck with a third of the vote (these numbers have however been fluctuating with PiS seemingly pulling forward in the last weeks). Duda’s victory has now given a boost to his party which – after only a brief stint in government between 2005 and 2007 – has spent most of its existence in opposition and could now get into office on its presidential tailcoats. However, there are still two major unknown factors in this equation. First, it is not clear which role a potential political movement led by third-placed presidential candidate Pawel Kukiz will play – some polls suggest a potential of up to 20% of the vote (equivalent to his first round vote share) and unless the political left manages to join forces, might receive most if not all of the sizeable protest vote. Second, a PiS spokesperson announced that Jaroslaw Kaczynski would be PiS candidate for Prime Minister. Kaczynski – PiS Prime Minister 2006-2007, twin brother of the late president Lech Kacynski and presidential candidate in 2010 – is an icon of the political right, yet also one of Poland’s least popular politicians. In the end, his candidacy for Prime Minister might therefore do more to mobilise his opponents than his supporters.

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[1] This is normal practice in Poland and similar delays (albeit due to the lack of a sufficient number of ballot papers) have happened in parliamentary elections before.

Full results can be found on the website of the Polish Electoral Commission (in Polish):
http://prezydent2015.pkw.gov.pl/325_Ponowne_glosowanie

Detailed results of the exit polls can be found here (in Polish):
http://www.tvn24.pl/wybory-prezydenckie-2015,117,m

Gary Murphy – Referendum on the minimum age of the President of Ireland

This is a guest post by Professor Gary Murphy of the School of Law and Government, Dublin City University, Ireland

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The decision by the Irish people to overwhelmingly endorse same-sex marriage in the referendum on 22 May 2015 generated headlines all across the world and induced extraordinary scenes of celebration rarely seen in democracies after popular votes whether at general elections or referendums. As the first country to introduce same sex marriage by dint of popular vote in a referendum that meant so much to so many, Ireland took a decision after a robust debate where both political parties and civil society groups ran vigorous campaigns. The result was a citizenry which took an informed vote.

If only the same could be said for the other referendum. How the Irish people ended up voting to change the age of eligibility for running for president from 35 to 21 will go down in history as one of the great mysteries of Irish politics. And yet when in future years those assessing this referendum analyse it, they will note that the turnout at 60.51 per cent was extremely high for referendums; the eleventh highest of the thirty five referendums that have taken place since the constitution was introduced in 1937. There is one simple answer for this high turnout and that is that it was held in conjunction with same-sex marriage referendum which itself had a turnout of 60.52 per cent. 1,949,725 voted in the same-sex marriage referendum and 1,949,438 people voted in the presidential age referendum. High turnout, however, should not be mistaken for high interest.

Changing the constitution in any democracy is a serious business and theoretically speaking the Irish coalition government of Fine Gael and Labour went through a very deliberative process before deciding to propose that the Irish Constitution be amended. The reality is completely different.

The proposal to reduce the age of eligibility for President from 35 to 21 was one of 19 recommendations that came from the Constitutional Convention. This convention was charged by the government with considering a variety of aspects of the constitution to ensure that it best reflected Ireland in the twenty first century and with making recommendations to the Oireachtas on future amendments to be put to the people in referendums.

The convention was an initiative of the government whereby in 2012 it established a decision-making forum of 100 people, made up of 66 citizens, randomly selected and broadly representative of Irish society, 33 parliamentarians, and the independent chairman. It heard evidence from a range of experts and engaged in serious debate on nine specific issues mandated by the government. None of these included the age of eligibility for president, although the convention did also have the power to debate other potential constitutional amendments. On the presidency the convention was asked to initially discuss whether the president’s term should be reduced from seven years to five. It ultimately decided to reject such a view by 57 votes to 43. It also overwhelmingly rejected the idea of a one-term presidency, but it did substantially endorse a proposal that citizens should be able to nominate presidential candidates.

Currently the situation whereby candidates can get on to the presidential ballot is rather byzantine and is dominated by the political parties. A candidate must either get the backing of twenty member of the Oireachtas, which consists of 166 members of Dáil Eireann (the lower house) and 60 members of Seanad Eireann (the upper house), or four of the country’s 31 city and county councils. On the proposal that eventually found its way on to the ballot paper of reducing the age of eligibility from 35 to 21 the convention voted 50 to 47 to endorse such a position. Given the narrowness of this vote the question must be asked as to why the government then decided to put this question to the people above others which were overwhelmingly approved by the convention. For instance the government initially agreed to put the convention’s proposal that the voting age in general elections be reduced from 18 to 16 to a referendum in but later reversed this decision arguing that other referendums should take priority.

And these priorities seemingly included the referendum that even the constitutional convention itself was pretty much split on. Giving citizens who are resident outside the State the right to vote in presidential elections was one of the nine priorities suggested by Dáil Éireann when it approved the establishment of the constitutional convention to consider various reforms to the then seventy five year old document. But once the convention did indeed suggest that Irish citizens resident outside the state should be given the right to vote in presidential elections, it was reckoned by the government to be too radical and so instead it plumped for the rather innocuous proposal to reduce the eligibility age of the presidency.

In comparative terms the Irish presidency is essentially a weak office. Presidents have very few constitutional powers of which to avail and so limited are these powers that a president has essentially no room for independent action. In that context reducing the age of eligibility was deemed by the government as being the perfect referendum accompaniment to the controversial same-sex marriage proposal; a safe proposal dressed up as a significant reform where the government could frame the change in the constitution as being indicative of inclusion and equality for a younger generation. Thus the proposal to amend the constitution, one of the gravest decisions a government can make, was decided upon by the Irish government who then decided not to bother campaigning on it.

The Tánaiste and leader of the Labour party, the junior partner in the coalition government, Joan Burton suggested during what campaign there actually was that the referendum was the result of a recommendation from the constitutional convention which had delivered its final report in March 2014. This of course was not only incorrect but also highly misleading. It was the government which decided to have this referendum. The Labour party then took the even more bizarre decision to declare it was staying neutral on the issue and would not campaign on it which was to in effect treat the constitution with disdain and contempt.

The major coalition party Fine Gael ran a campaign so desultory that it can hardly even be described as that and none of the opposition parties did anything beyond make the most rudimentary appeals to their supporters to vote yes. Ultimately the only real campaigning on a government proposal to amend the constitution was done by a number of youth advocacy groups. There was no real organised opposition to the proposal. A number of individuals were vocal on the issue but taking to Twitter to complain about the paucity of the campaign as a whole, one ‘no’ advocate, the public affairs consultant Gerard Howlin, was forced into asking whether only he and two others could be bothered to advocate a ‘no’ vote. One of those two others was my Dublin City University colleague Prof Colum Kenny who enthusiastically campaigned for a ‘no’ vote issuing no fewer than 37 press releases to the media and making numerous appearances in the print and broadcast media. And yet despite the individual nature of the ‘no’ campaign the proposed amendment was defeated by 73.06 per cent to 26.94 per cent with all 43 geographical constituencies voting no; the largest defeat for a referendum proposal since the constitution was introduced in 1937.

Writing just a day after the results were declared it is difficult to offer anything but the considered view that the reason 1,412,602 people voted against the proposal was simply because no convincing case was made that they should change their constitution. The Irish people are on the whole quite protective of their constitution. They are not opposed to changing it and doing so quite dramatically as in the same-sex marriage vote. They do need persuading, however, that it needs changing. Since 2002 they have twice rejected European treaties and in 2013 they rejected a populist proposal to abolish the second Oireachtas chamber, the Seanad, when the government again failed to make the case that it was necessary. On the same day that the Irish gave an overwhelming yes to same-sex marriage they also reminded their government that they know that changing the constitution is an important matter. It is something their government certainly needs reminding of.

Gary Murphy is Professor of Politics at Dublin City University where he has worked for the past two decades. He has published extensively on the politics of modern Ireland. His latest book, a major reinterpretation of modern Ireland, entitled A brief history of continuity: Ireland since 1987 will be published by Manchester University Press later this year. He is a prominent contributor to political debates in Ireland in the print and broadcast media.

Nigeria – Internal divisions emerge in All Progressive Congress as President-elect Buhari prepares to take office

In Nigeria’s March 28 elections, the All Progressive Congress (APC) presidential candidate won an historic victory. Muhammuadu Buhari and his running mate Yemi Osinbajo beat the incumbent candidate Goodluck Jonathan of the People’s Democratic Party (PDP) by a margin of two million votes. The victory heralds the first political transition in Africa’s most populous state since the return to multiparty politics in 1999. The APC further consolidated its gains with a majority of seats in both the House of Representatives and the Senate.

The PDP’s defeat was due in part to the party’s association with rampant corruption, economic turmoil amidst an oil price slump and insecurity in Nigeria’s North East. During his campaign, Buhari positioned himself as a credible candidate both to fight corruption and to reinforce Nigeria’s military offensive against Boko Haram. Immediately after the Independent National Electoral Commission (INEC) declared him winner, Buhari again reaffirmed his intention to pursue an ambitious reform agenda, pledging for instance to restructure Nigeria’s corruption-prone national oil company.

With popular expectations running high, Buhari and his APC will soon be put to the test. Outgoing President Jonathan will dissolve his cabinet on May 28 in preparation for Buhari’s inauguration the following day. The two chambers of the National Assembly will then formally convene in early June.

With the formation of an APC government imminent, the question is whether the party and its President will be able to deliver on their promises, and also avoid the regional and ethnic tensions that have plagued Nigeria’s politics in the past.

There are early signs that Buhari and the APC are facing an uphill battle, notably aggravated by tensions within the party coalition. Ahead of the elections, the APC effectively avoided any major divisions, cementing an alliance between the North and South West through the choice of presidential candidates. Buhari hales from the North West while his running mate Osinbajo comes from the South West and was also backed by the regional Kingmaker, former Lagos governor Tinubu.

This pre-election entente quickly dissipated after the polls. Only days later, regionally-based factions within the APC began jostling over leadership positions, notably within Nigeria’s Senate and House of Representatives. The President of the Senate is the number three position in Nigeria, followed by the Speaker of the House and the deputy positions for each.

In a country where regional differences are a key factor in shaping politics—and the source of manifold political tensions—careful ‘zoning’ or ring-fencing of positions is a common practice; in theory, it  helps settle expectations and avoid controversy. The APC National Executive Committee had, prior to the elections, tentatively agreed to choose its Senate President candidate—to be confirmed through a Senate vote—from among its North Central Senators. This decision set the NEC on a collision course with a majority of its Senators-elect, who are members of regional caucuses each of which proposed its own preferred candidate for the position of Senate President. The Senators have also accused the NEC of trying to use ‘zoning’ to favor specific individuals.

A week away from Buhari’s inauguration date and unable to resolve its internal disagreements, the APC has now opted to have no zoning arrangements in the legislature at all. On Wednesday, May 20, the Chairman of the party, Chief Bisi Akande denounced zoning as a negative legacy of the PDP. He affirmed the APC was not going to repeat the mistakes of its predecessors, mistakes which ‘caused the [PDP] to lose credibility not only among its members but also among Nigerians.’ Instead, ‘In our desire to have the best legislature, we are not considering any zoning arrangements whatsoever.’

Rhetoric aside, it is clear the APC has failed to reach an agreement, a situation made all the more apparent in light of the recently planned retreat for all APC Senators-elect, which is scheduled for May 22-23. Officially labeled as ‘part of efforts being undertaken by the party to ensure that the legislators hit the ground running for the benefit of Nigerians,’ the retreat is more likely a last minute effort to smooth over differences. One concern is that, should the APC fail to agree on a candidate for Senate President, the opposition PDP will take advantage of divisions and thereby influence the outcome of the Senate vote to its advantage.

That fear is perhaps exaggerated, especially given the crisis currently plaguing the PDP. Since their historic loss, PDP leaders have been busy pointing fingers, blaming each other for the defeat. On May 20, both the PDP Chairman, Adamu Mu’azu, and the Chairman of the Board of Trustees of the party, Tony Enenih, resigned. Mu’azu, in particular, was under intense pressure after PDP governors and other top party leaders accused him of siding with the opposition during the election campaigns.

In general, the main challenges facing President Buhari and the APC as they face the realities of government are not external but internal. The question is whether the party—a broad coalition of actors from the across the North, South West and South South—can hold together. It will certainly need to preserve its unity if it is to wage a battle against Nigeria’s entrenched corruption. The outcome of that struggle, more than anything, will determine whether the March 28 elections truly did mark a turning point for Nigeria.

India – The Repromulgation of Ordinances  

On 30 December 2014, the Narendra Modi Government in New Delhi promulgated an ordinance: The Land Acquisition, Rehabilitation and Resettlement Ordinance 2014 (LARRO 2014). The authority to promulgate ordinances comes from Article 123 in India’s Constitution. It says that the President may promulgate ordinances if the Houses of Parliament are not in session and the laws are immediately necessary. Once the Houses of Parliament return to session, such ordinances must be made into legislation by the normal parliamentary procedure. LARRO 2014 did not succeed in Parliament. The Modi Government didn’t have sufficient votes in the Upper House to get it through. In keeping with Article 123, the ordinance should have lapsed. The government though had other ideas. Keen to persist with the law, it repromulgated the ordinance on 31 March 2015; days after Parliament broke for recess during its Budget Session (LARRO 2015). What if the government repeats this endlessly? If permitted, the practice would effectively keep an ordinance in the statute book without subjecting it to a parliamentary vote – or worse, even after Parliament has voted it down. Is repromulgation of ordinances lawful?

The practice of repromulgating ordinances, especially at the state level, has been around for decades. It was brought to light, ironically, by an economist, Diwan Chand Wadhwa. He stumbled upon a peculiar legal trail while studying land reforms in eastern India. An amendment to the Chota Nagpur Tenancy Act, 1908, he noticed, was being repeatedly promulgated as an ordinance in the State of Bihar. The text never changed; essentially, the same ordinance was being repeated. Doubtful about the constitutionality of the practice, he delved in. A grim picture emerged. Between 1967 and 1983, Bihar had repromulgated as many as 265 ordinances. Of these, 60 ordinances were in effect for a year or less. About 50 were repeatedly promulgated for 5 to 10 years. Astonishingly, 13 had been “kept alive” for as long as 10 to 15 years without subjecting them to a legislative vote. The Assembly didn’t function, except in name only. And by relying on Article 213 the Bihar executive had effectively stepped into the shoes of the legislature. Wadhwa put together his research in a book Repromulgation of Ordinances (1982).

Inspired by the critical acclaim his book received, Wadhwa petitioned the Supreme Court the same year. In D.C. Wadhwa v State of Bihar, the question of repromulgation was squarely before the Court. Repromulgations in Bihar, he argued, were unlawful. And the Supreme Court agreed. Makers of the Constitution intended ordinances to have temporary lives, the judges reasoned. For the executive to prolong them “without going to the Legislature” would tantamount to “usurping the law-making function”. That in turn would subvert the democratic process which lies at the “core of [India’s] constitutional scheme”. Little later in the decision, the Court had a stronger admonishment: To sustain an ordinance by repromulgating it with “substantially the same provisions” is to exercise power colourably; it is a “fraud on the constitution”. Repromulgations are unconstitutional, the Court concluded.

This verdict came in 1986. And yet repromulgation continued unabated in India. Surprisingly, repromulgation at the central level began only in 1992. A trend soon emerged. The 1990s altogether witnessed 53 instances of repromulgation. There were 196 ordinances in all in the 1990s; consequently, almost 25 per cent were repromulgated ones. How could that be? How could a practice declared unconstitutional by the Supreme Court be so common?

That is because the general rule in D. C. Wadhwa came with an exception. Repromulgation is lawful, the judges said, if a government is unable “to introduce and push through” a Bill to convert an ordinance either because “the Legislature [has] too much legislative business” or the time at its disposal is short. The explanation is worth quoting in full.

Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack.

So if the legislature is too busy or a session is too short, repromulgation is justified. That makes little sense. Who after all is to be the judge of busyness or duration?

DC Wadhwa, it must be said, encouraged rather than prohibited repromulgations; the 1990s speak for themselves. Unable to enact legislation properly, minority governments in India took to Article 123 as an alternative. Political expediency, not legislative urgency, motivated these ordinances and their repeat versions. But governments were always careful to claim the “proper” excuse: the Houses were too busy to deal with the ordinances. In Gyanendra Kumar v Union of India, 10 repromulgations of the Narasimha Rao Cabinet (1991-96) were put under the scanner. Two lawyers petitioned the Delhi High Court to pierce the Cabinet veil and see the ordinances for what they were: a “fraud on the Constitution”. The government took refuge in the Wadhwa exception: Because of “heavy and urgent” workload, “the Bills could not be debated upon” in Parliament. Therefore, repromulgations were necessary. The Court bought it. Veracity of those claims remained untested; the judge posed no further questions. Merely uttering the exception, it seems, is sufficient to satisfy the Wadhwa exception.

Notice that the Land Ordinance 2015 was not because of legislative busyness. The government never hid the fact that the repromulgation was made necessary because it didn’t have enough votes in the Upper House. A requisite parliamentary majority, in other words, was lacking. Is that a valid reason to repromulgate? The question is now before the Supreme Court. Whether the Court agrees to hear the petition and render a verdict remains to be seen.

Jean Blondel – The presidential idea

This is a guest post by Professor Jean Blondel, Professor Emeritus, EUI, Florence

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In the course of the last few years, I became increasingly concerned with the apparent contradiction between the rapid development of regimes in which the role of the president is dominant and the impression that these regimes were at least very often giving way, at any rate temporarily, to what is conventionally regarded as ‘usurpation’. The ‘presidential republics’ which had emerged in the newly independent Spanish American countries in the first decade of the nineteenth century could be regarded as providing evidence for the view which was put forward by Linz and Valenzuala in 1994 in their two volume study, namely that, on the whole, ‘presidential democracy’ was a ‘failure’. The case of France’s ‘Second Republic’ of 1848-51 was also an example of such a ‘failure’ as the model was the America: thus only the successful duration of the US Constitution of 1787-9 made it impossible to adopt such a view as a ‘universal’ proposition. As a matter of fact, the fate of subsequent ‘presidential experiments’ in Europe in the interwar period seemed to confirm the validity of ‘pessimistic’ views, Finland having been the only European exception among them.

Yet this state of affairs did not prevent the multiplication of ‘presidential republics’ in Africa from the late 1950s to the 1970s and beyond; there was more reluctance in Asia and indeed in Europe as well, except for the fact that Gaullist France, alone in Western Europe, adopted presidentialism in 1958-62. Indeed, in the 1990s, a further boost for the model of the ‘presidential republic’ resulted from the collapse of the Soviet Union, as Yeltsin adopted the ‘model’ for the new Russia he created, a move which was closely followed by ten of the other eleven ex ’Soviet’ republics which did not join the European Union in 2004. A majority of the countries of the world had come to be presidential as a result (see Table 1 below)!

Table 1

World regimes in 2013 (countries of 100,000 inhabitants or more only)

Region Total Pres Parl. Rep Monarchies Usurp Communist Decentralised Unclassified
West/W. Europe 23 2 9 11 1
E. Europe in EU 11 2 9
E. Europe not in EU 7 3 3 1
Asia 39 11 10 13 1 3 1
Pacific 7 2 3 1 1
Africa 53 45 2 3 3
Amer. (not West) 30 21 1 7 1
Ex Soviet Union 11 11
Total 181 95 36 37 2 4 3 4

Details are given in the volume about the regimes adopted by individual countries in the various parts of the globe.

Even if many of the countries concerned (except in Europe) were affected by ‘coups’, the fact that the ‘presidential idea’ had spread so widely in the twentieth century in particular suggested that, on the basis of what had been truly an institutional ‘invention’ in the United States in 1789, a new ‘constitutional’ formula was being adopted in a context in which ‘new’ countries emerging from colonialism, with difficulty, admittedly, but with also some successes, particularly over time, as Latin American experience seemed to be showing especially from the 1990s and indeed even in some ‘new’ African countries as well, while there might otherwise have been a universal spread of ‘usurpation’ in the ‘new’ ex-colonised countries which were appearing on the scene.

My new book on the ‘Presidential Republic’ is thus an attempt at mapping out the difficult historical development of the ‘presidential republic’ since it was invented in the United States. The ‘presidential republic’ in its various forms is indeed, it seems to me, a genuine success, once we take into account the fact that decolonisation produced a large number of countries in which the legitimacy of the nation was, to say the least, very limited: what may be the case is that presidents in charge of the executive and in office for a number of years, as the United States constitution stipulated for the first time in the history of mankind, might be gradually the key instrument as a result of which usurpation may no longer periodically prevail.

Jean Blondel is a political scientist in the field of comparative politics. He became Professor of Political Science at the EUI in 1985 and was an External Professor from 1994 to 2000. Prof. Blondel set up the Department of Government at the University of Essex in 1964 and co-founded the European Consortium of Political Research. He was the winner of the Johan Skytte Prize in Political Science 2004. He has been awarded honoris causa doctorates from the University of Salford, the University of Essex, the University of Louvain-la-Neuve, the University of Turku, the University of Macerata (2007) and the University of Siena (2008).

Chile – Major Cabinet Reshuffle

Nearly two weeks ago, the President of Chile, Michelle Bachelet, during an interview with Canal 13, announced somewhat unexpectedly that she had asked her entire 23 member cabinet to resign. Stating that now was “the moment to change the cabinet”, President Bachelet then said that she would consider the position of her former ministers over a 72-hour period.

Those 72 hours are now up and President Bachelet has presented her new cabinet in what amounts to the most significant cabinet reshuffle ever witnessed in contemporary Chile. Five ministers have been completely removed from the cabinet, while four others have received new portfolios. Interpreted as a shift to the centre within the centre-left Concertación, Rodrigo Valdés, an economist trained at MIT, replaced Alberto Arenas as Finance Minister. This is the first time that a sitting Finance Minister has been removed by a Chilean President mid-term since Chile’s return to democracy in 1990.

Jorge Burgos, formerly Defence Minister, replaced Rodrigo Peñailillo as the Minister of the Interior while Alvaro Elizalde, formerly the chief government spokesperson, was replaced by Marcelo Díaz, formerly ambassador to Argentina. In addition, President Bachelet announced new ministers for Defence, Labour, Culture and Social Development. Some key portfolios remained undisturbed: Heraldo Muñoz will continue as Foreign Minister and Nicolás Eyzaguirre, key to the President’s wide-ranging education reforms, will stay as Education Minister.

The cabinet reshuffle can primarily be understood in the context of Michelle Bachelet’s dwindling popularity. Her approval ratings have reaching the nadir of the low thirties, a far cry from the eighty plus rating that she enjoyed towards the end of her first term in office. In turn, this poor support for her administration is largely a product of a number of corruption scandals that have recently engulfed the Chilean body politic, leaving the Chilean electorate generally dissatisfied and unhappy with the political elite and the institutions of the state.

The first of these corruption scandals involves one of Chile’s largest corporate entities, Penta Group, which was allegedly receiving false invoices from politicians in order to allow the company channel illegal campaign donations to political parties, mainly the right-leaning Unión Demócrata Independiente (UDI). A number of Penta executives were jailed, but have since been released and placed under house arrest.

More significantly however, one of the scandals involves the President’s own son, Sebastián Dávalos. Dávalos has been accused of using his political influence to arrange a US$10 million bank loan for his wife’s firm, Caval, which then used the funds to purchase land in central Chile that was promptly resold for a profit. Although the national banking regulator has cleared Dávalos of any wrongdoing, Congress has launched an investigative committee to explore the allegations.

For a previously enormously popular president, who was partly elected due to her harsh critique of staid and corrupt practices among the country’s political elite, these scandals have been disastrous for her administration. President Bachelet denies any wrongdoing, or knowledge of the loan her son received, but the scandals have nonetheless left their mark. The cabinet reshuffle is clearly an attempt to inject new life and untarnished political blood into her damaged administration. We will just have to wait and see if it works.

Kyrgyzstan – Another Year, Another Prime Minister

Temir Sariev, the former Minister of Economics, assumed the post of head of government in Kyrgyzstan on April 30, a week after the resignation of Prime Minister Joomart Otorbaev. Sariev is the fifth prime minister since Kyrgyzstan became a self-styled “parliamentary republic” in June 2010 and the 26th prime minister since the emergence of an independent Kyrgyzstan at the end of 1991. On departing office, Otorbaev noted that the cabinet needed to be “shaken up,” but Sariev will lead a government with only three new members, and they fill existing vacancies in the portfolios for finance, transport and communications, and economics.

Unlike the previous two prime ministers, who were technocrats, Temir Sariev is a prominent politician who has served as a parliamentary deputy, minister, deputy prime minister, and founder and head of a political party, Ak Shumkar (White Falcon).   He ran unsuccessfully for the presidency against Kurmanbek Bakiev in 2009. Associated with northern politicians who vigorously opposed Bakiev’s rule–and helped to overthrow it in April 2010–Sariev is one of the few Kyrgyzstani politicians who has sought to build a base of support in the nascent middle class. An entrepreneur who achieved considerable success in business in the 1990s, Sariev combines an understanding of, and degree of sympathy toward, market-based economics with a pro-Russian orientation in foreign affairs. He is also an astute observer of Kyrygzstani politics and the author of one of the best political memoirs of the post-communist era.[i]

Because he was brought in from outside the ranks of the three parties in the ruling parliamentary coalition, and because parliamentary elections are scheduled for October of this year, Sariev had to agree as a condition of his appointment that neither he nor his party would contest the forthcoming elections. Facing a term of less than six months as prime minister, Sariev’s willingness to assume the post may appear puzzling. However, his party, Ak Shumkar, stood little chance of crossing the relatively high threshold of seven percent in national list voting, and a successful stint as prime minister could position Sariev to reclaim the prime minister’s office after the election or to run for the presidency in 2017, when President Atambaev’s single six-year term expires.[ii]

Sariev will certainly have every opportunity to prove his mettle as prime minister in the coming months.[iii] Kyrgyzstan is in the midst of a legal and political battle over Kumtor, the foreign-owned gold mine that provides the country with much of its revenue, and it is on the verge of accession to the Moscow-led Eurasian Economic Union.[iv] Having overseen much of the preparatory work for admission to the Eurasian Economic Union, and having enjoyed good relations with the political leadership in Moscow, Sariev is in many respects a logical choice for the post of prime minister.

Kyrgyzstan’s constitution limits the president’s formal role in government formation to the nomination of the party that seeks to form a ruling coalition, but the politics of Sariev’s appointment provides evidence that Kyrgyzstan’s president exercises a degree of patronage influence not normally associated with a head of state in a “parliamentary republic.” For example, after Prime Minister Otorbaev’s resignation, a leader of the ruling coalition in parliament, Felix Kulov, stated that “the coalition will only propose its [replacement] candidate with the approval of the President.”[v] In fact, both the formal and informal powers of Kyrgyzstan’s president suggest that the country has something closer to a semi-presidential rather than a parliamentary model of government.

Designed by a politician who was opposed to the strong presidencies characteristic of the post-communist world, the 2010 constitution sought to limit the accumulation of presidential power in two primary ways: by making the prime minister’s selection and survival dependent on the parliament and by preventing the creation of a pro-presidential “party of power” that could amass a supermajority capable of amending the constitution. The 2010 constitution’s unusual protections for the opposition included not only a restriction on the number of seats held by any single party–65 out of a total of 120 in the unicameral legislature–but also the allocation of the chairs of the Budget and Law and Order Committees to opposition parties.

The 2010 constitution left in place, however, many of the features of the previous semi-presidential order in Kyrgyzstan. Besides enjoying a direct popular mandate, the president of Kyrgyzstan continues to exercise direct control and appointment authority over the “power bloc” in the cabinet, which includes ministers and their deputies in the fields of defense and national security. An indication of the relative ranking of the offices of president and prime minister in Kyrgyzstan was the decision by an incumbent prime minister, Almazbek Atambaev, to run for the single six-year term as president in the fall of 2011 rather than remain as head of government. Thus, whereas the prime minister is traditionally the center of political gravity in a parliamentary system, in Kyrgyzstan the president continues to be the executive figure that exercises greater pull.

Notes

[i] Temir Sariev, Shakh kyrgyzskoi demokratii (Kyrgyz Democracy under Threat). Bishkek: Salam, 2008. Speaking to me in the summer of 2010, Sariev argued that even under favorable conditions it would take 15-20 years to develop genuine political parties in Kyrgyzstan. Interview with Temir Sariev, Bishkek, 20 July 2010.

[ii] Ak Shumkar received 2.6 percent of the votes of registered voters and 4.7 percent of those voting in the previous parliamentary election, in October 2010. Eugene Huskey and David Hill, “The 2010 Referendum and Parliamentary Elections in Kyrgyzstan,” Electoral Studies, vol. 30, no. 3 (2011). The recent shift of the threshold from five percent of registered voters to seven percent of actual voters seemed unlikely to increase Ak Shumkar’s chances of success in the October 2015 elections.

[iii] An indication of the punishing schedule facing the new prime minister was his comment on assuming office that government officials would be working weekends and holidays. Grigorii Mikhailov, “V Kirgizii–integratsionnyi shok” (The Shock of Integration in Kyrgyzstan), Nezavisimaia gazeta, 13 May 2015, p. 7. http://www.ng.ru/cis/2015-05-13/7_kirgizia.html

[iv] Accession documents for Kyrgyzstan’s entry into the Eurasian Economic Union were signed by the heads of state of member countries in Moscow on 8 May 2015, but formal admission awaits ratification by the parliaments of member states. Kyrgyzstan’s entry into the Union poses serious political, technical, and economic challenges for the country, which has been divided over the move.

[v] “Koalitsiia bol’shinstva predlozhit Atambaevu nazvat’ kandidata v prem’ery” (The Ruling Coalition invites Atambaev to name the candidate for Premier), Vechernyi Bishkek, 24 April 2015. http://www.vb.kg/doc/311246_koaliciia_bolshinstva_predlojit_atambaevy_nazvat_kandidata_v_premery.html

Mauro Tebaldi – The President of the Italian Republic in times of political and economic crisis (2010-2014)

This is a guest post by Mauro Tebaldi, Associate Professor in the Department of Political Sciences, Communication Sciences and Information Technologies, University of Sassari

Foto del 11-05-15 alle 15.10

This post examines the role of the former President of the Italian Republic, Giorgio Napolitano, in times of political and economic crisis, with particular regard to the period 2010- 2014. During this period, Napolitano (the first President of the Italian Republic to have been elected twice, in 2006 and 2013) was a key player in seeking solutions to the economic and institutional emergencies that governmental institutions and political parties were unable to find. This active role of the President of the Republic has been the subject of contrasting assessments, in both political debate and public opinion, as well as in the academic literature. Some consider the behaviour of the Head of State constitutionally legitimate and politically appropriate. Others found it constitutionally illegitimate and politically unwise.

This post aims to explain: a) why the former President of the Italian Republic tended to expand his powers; b) whether and to what extent the behaviour of the President exceeded his constitutionally prescribed role; and c) whether this presidential behaviour has protected or weakened Italian democracy.

In his capacity as Head of State, the Italian President has a number of powers that are not just symbolic or ceremonial in nature, but also endowed with high political relevance, such as the appointment of the prime minister and the early dissolution of parliament. From its earliest beginnings, the actions of the Italian presidents have shown great versatility and flexibility. They adapted to the different seasons of the Italian political system relying on a laconic constitutional discipline. So, without any substantial changes to the regulatory source from which they drew their legitimacy, Italian presidents have sometimes deeply affected the evolution of the Italian parliamentary system, extending their powers to the highest degree, while on other occasions they have remained on the sidelines of the decision-making arenas. These differences have led some scholars to talk of an ‘accordion’ of presidential powers, which can expand or contract. In certain circumstances and under certain conditions, the poorly defined constitutional powers of the President of the Republic may grow to impose his will on other bodies of the parliamentary circuit – the assemblies and the government – or on other political actors such as the parliamentary majority or the opposition parties. The underlying hypothesis is that the movements of the ‘presidential accordion’ depend on the strength of the party system. The more the party system is able to produce stable and cohesive majorities, the less space there will be for wide and autonomous use of powers by the President of the Republic during times of political crisis. When, on the other hand, the party system produces unstable and conflicting majorities, the President of the Republic will tend to intervene with broader powers and more autonomy in resolving the political crisis.

As we can see from the analysis of Napolitano’s presidencies in 2010-14, the role of the President grew dramatically when the crisis of the political parties made it impossible to form governments capable of dealing with the country’s financial and economic crisis. Napolitano extended his powers at the structural level in the sphere of politics, creating new procedures for government dissolution and formation. Of particular importance was his public announcement of Berlusconi’s resignation before the prime minister himself had announced it. In addition, he appointed Monti as Life Senator immediately before his appointment as prime minister. Still at the level of the political regime, Napolitano strongly defended some fundamental values of the Italian Republic, such as European Union membership.

There was a similar expansion of presidential powers at the level of political process. Examining the sphere of politics, the rise of the Monti government certainly was a procedural innovation, but, above all, it was a substantive choice of prime minister which Napolitano made by himself and forced the political parties to accept. Moreover, as Napolitano has openly acknowledged, the choice of Letta as the next prime minister was also autonomously decided by the president himself, and only weakly conditioned by the parties consulted. With regard to the sphere of policy, Napolitano played an important role constantly proposing institutional, constitutional and economic reforms to the government and political parties.

Apart from acting as a stimulus to the governments and their majorities, Napolitano continuously and personally monitored their work. Napolitano’s supervision of governmental activities and programmes from the end of 2010 until the beginning of 2014 applied to all the governments in power during this period (led by Berlusconi, Monti, Letta). This was necessary, since the domestic political context revealed the weakness of the parties in dealing with the country’s financial crisis and since the international economic institutions and the EU authorities had subjected Italy to very tight restrictions in the choice of its economic policies.

According to the theory of the ‘presidential accordion’, the role of Napolitano expanded when the political power of political parties and the government institution weakened. Eventually, he assumed the role of guardian for the functioning of the Italian parliamentary system. What is even more relevant, due to the constitutional and political sensitivity of the issue, is the analysis of the causal relationship between the Italian parliamentary system and the behaviour of the president.

Indeed, we can hypothesise that under certain conditions the trespassing of the Head of State into the government area may cause changes to the practices and substance of the parliamentary system. For example, this might occur when the majority that elected the Head of State coincides with that supporting the prime minister and his government, and both positions are held by leaders of the same coalition. Specifically, it might determine the transition from a model in which the Head of State and the cabinet are each potential veto players of one another, within a system of ‘separated institutions competing for shared powers’ to another model in which the president and the government merge in a system of ‘joined institutions sharing powers’. In a nutshell, it could give rise to a hybrid form of government, which would be much closer to a semi-presidential government than a parliamentary one.

In this regard, the expansion of the presidential role under Napolitano’s presidencies has been interpreted in different ways. Some authors describe it as a pathology of the Italian political system. For these authors, the behaviour of the president not only exceeds his constitutionally prescribed role, but also represents one of the main anomalies of Italian democracy. It entails some fundamental powers of government being assigned de facto to a guarantee institution, not accountable to the electorate, thereby weakening the quality of democratic government in Italy.

Other scholars emphasise that President Napolitano’s role fits into the physiology of the parliamentary government as designed by the Italian Constitution. Indeed, the flexibility given to the role of the president of the Republic can be regarded as a major instrument to resolve situations of institutional deadlock. From this perspective, the movements of the ‘presidential accordion’ becomes a key feature of Italian parliamentary government, enhancing the quality of democracy in terms of inter-institutional accountability when the weakness of the party system could block the formation of government or its functioning.

Our analysis suggests that President Napolitano acted like other presidents before him when the party system suffered similar issues and expanded his powers within the constitutional limits of the parliamentary form of government. He did so through an active role of stimulation, protection and guarantee towards the restoration of governmental and parliamentary functions. Within these constitutional limits, and with a personal style, Napolitano played a role that the political parties and their leaders could not perform. Rather than changing the features of the Italian parliamentary government and transforming it unlawfully into a semi-presidential government, Napolitano has confirmed that the role of the Head of State, with its capacity for expansion, is a key role strengthening the democratic parliamentary regime in times of grave crisis – particularly when the political system is simultaneously threatened by an exogenous crisis that forces the government to decide and an endogenous crisis that prevents it from taking decisions.

Mauro Tebaldi is an Associate Professor in the Department of Political Sciences, Communication Sciences and Information Technologies, University of Sassari. His main research interests are political institutions, democratic theory and public policies.