Tag Archives: Cohabitation

Timor-Leste – Cohabitation: the tug-of-war continues

After the early elections of last May, a period of formal cohabitation was initiated between the first partisan president (Fretilin’s chairman, Lu Olo) and a government supported by the winning coalition (Xanana’s CNRT, Taur Matan Ruak’s PLP and KHUNTO), which has an absolute majority in the House, but not of a two-thirds super majority.

The president appointed Taur Matan Ruak as prime minister in June and, according to the constitution, the prime minister submitted his proposal of 42 government members. Lu Olo initially objected to 12 of those members. One case was solved by bureaucratic means, as the presidential objections related to the need to clear the proposed minister’s earlier position as deputy chief of the armed forces; two were also sidestepped when the candidates were replaced by names acceptable to the president; but as for nine others, neither the president nor the prime minister has shown signs of changing positions. Three other suggested ministers refused to be sworn in in solidarity with their vetoed colleagues, one of them (Xanana Gusmão) indicating that he preferred to stay out of government for good. At the time of writing, almost three months have elapsed and the government still has no minister for finance, health or natural resources, and is thus in a formally weak position to discharge its functions. Nonetheless, in this period, the government was still able to present some critical documents including the state budget for the current year (which had not been possible to pass due to the political crisis of 2017 that eventually led to the early elections). As things stand, no clear sign is discernible as to the solution for the impasse. It seems that formal institutions are suffering the challenge of a kind of a shadow theatre in which decisions are made outside the boundaries of the council of ministers.

Angry with what he regards as a break with the platform on which the president was elected with his support, Xanana Gusmão announced last month that he would “wait another ten days” for Lu Olo to accept the government members before he would “take action” and formally accuse him of “usurpation of functions”. No action has yet been taken. The tug of war continues without a solution in sight.

For the benefit of comparative purposes, the present situation calls for a discussion of the role of the president in the Timorese political system. Two aspects should be considered. First, what is the power of presidents regarding the appointment of governments? Second, what kind of protection does the constitution award to presidents against moves to challenge his authority and eventually bring him before the courts?

Section 107 of the Constitution of the Democratic Republic of Timor-Leste (CRDTL) states that “the Government shall be accountable to the President of the Republic and to the National Parliament for conducting and executing the domestic and foreign policy in accordance with the Constitution and the law.” This is a clear indication that presidents can play an active roles in their relation with the government. For each new government, two steps have to be taken. First, according to section 85d (including all competencies exclusively incumbent upon the president), presidents “appoint and swear in the Prime Minister designated by the party or alliance of parties with parliamentary majority after consultation with political parties sitting in the National Parliament”. Although this section seems to restrict presidential powers, it fact it allows significant room for discretion, namely in cases when there is no pre-electoral majority in parliament (as it happened in 2007, 2012 and 2017). Also, constitutionalist Pedro Bacelar de Vasconcelos noted that this formulation “expresses the double responsibility of the government” before the president and the assembly.[i]

The second step is the appointment of government members. According to section 86h (including competencies in regard to other organs of sovereignty), it is a presidential competence “to appoint, swear in and remove Government Members from office, following a proposal by the Prime-Minister, in accordance with item 2, Section 106”, which in turn stipulates that “the remaining members of the Government shall be appointed by the President of the Republic following proposal by the Prime Minister”. It seems very clear that the president does not dispose of a power of initiative in the appointment of ministers, depending on a proposal by the prime minister; but conversely, it seems equally clear that the prime minister does not possess more than a competence to propose names without obliging the president to accept them. Previous presidents have used the power of rejection at least on two counts: José Ramos-Horta privately opposed some names proposed by the prime minister in 2007, and Taur Matan Ruak did the same with public knowledge in 2012. These are precedents that did not raise any objections at the time they took place, and what is more relevant, in one of those instances the current prime minister was then the president and is thus morally bound by his early attitude. In an interview given to me a few years ago, president Ramos-Horta expressed the following understanding of his powers regarding the nomination of ministers proposed by the prime minister:

“If I am the Head of State in charge of guaranteeing peace and security, if I must nominate ministers, I need to be confident not only of the prime minister’s capacities, but also of the ministers I am empowering. I bestow my authority behind each of them individually. So, I rejected two names proposed by the prime minster”[ii]

Concluding this section, the double dependency of the government on the president and the assembly offers the head of state the competence to have a decisive word on the appointment of the prime minister and above all, of his ministers. The present position of president Lu Olo seems thus to be solidly anchored in the country’s constitution and political conventions. But what if it was not? What could be done?

CRDTL devotes one full section (79) to “criminal liability and constitutional obligations” where it stipulates (in number 2) that “the President of the Republic shall be answerable before the Supreme Court of Justice for crimes committed in the exercise of his or her functions and for clear and serious violation of his or her constitutional obligations”. For a complaint to be brought before the justice, however, the process must begin in parliament, where a qualified majority of two-thirds of its members is required to allow the move to reach the Supreme Court (number 3). This means that there is a strong political rather than institutional factor at play in any process to formally accuse the president of foregoing his constitutional obligations or abuse his powers. At the moment, the president’s party, Fretilin, controls 23 of the parliament’s 65 seats and is thus in a position to block any move destined to challenge the president’s position.

To a substantial extent, the actual presidential powers depend on the political conditions of the moment as on the institutional definition of his competences. The constitutional text defines very broad limits to the presidential powers, which will be more or less used according to the political conjuncture. Timor-Leste had three consecutive “independent” presidents, not affiliated with any political party, which rendered the articulation between the president and the assembly more open to variable geometries, and prevented the systematic opposition between presidential and parliamentary majorities. Now, with the first partisan president, things are significantly different. Even if one cannot presume that Fretilin and the other parties not represented in the executive will always vote against the government (as the recent vote on the state budget showed, the government which controls 34 seats obtained 42 votes in favour, several abstentions and only 9 votes against – the opposition parties having failed to adopt a common position and showing internal splits in the final vote), the likelihood that they can use their capacity to bloc any vote requiring qualified majority is strong. This circumstance contributes to reinforce the presidential influence, as he disposes of veto powers over every law or decree-law (CRDTL section 88). In the case of decree-laws, the president’s word is final; in the case of parliamentary laws, a qualified majority is required to overturn those that address fundamental issues (as stipulated in section 95), including budgetary issues as well as the fundamental laws of social security, health, education, defence and security, electoral laws, and more. That’s to say: an absolute majority in parliament  does not entail a free hand in the definition of policies, as the president may force a qualified majority in order to allow for the implementation of the government’s program. In this light, the comparative strength of the president is a key element in the Timorese political landscape.

In this context, president Lu Olo is comfortable in his position, and his powers, articulated with his link to a party that controls more than one third of the seats in the House, are a serious challenge to the government’s simple majority. Certainly not by chance, several voices in Dili are predicting that Xanana Gusmão, leader of the largest party in the government coalition, would welcome the dissolution of parliament once again in order to try and take away from Fretilin two seats that would substantially change the nature of the presidential room for intervention. However, this would be a high risk strategy that may not be sympathetic to the prime minister, who has shown signs of “understanding” for the presidential opposition to cabinet members proposed by Xanana’s party. In any case, this would only be possible after six months have elapsed from the last election in early May.

Timor-Leste is thus living under uncertainty, and the economic performance has echoed the adverse conditions with a significant fall in its growth rate and a paralysis of most of the non-oil sector – and this economic slow down is not conducive to easy electoral victories. The state budget for 2018 was drawn to reverse the situation, although its effect will be limited in the short term (it has still not been approved by the president); and the 2019 budget will probably be in the same vein – in spite of being drawn by a government that has no finance minister. The one fact that has emerged with some accrued stability is the resilience of the presidency and its critical role in the politics of the country. How much longer will the president accept that the government continues to work in the absence of critical ministers before he can argue that the regular functioning of institutions is not being met, and that he may step up his intervention?

Notes

[i]Pedro Bacelar de Vasconcelos, Constituição Anotada da Republica Democrática de Timor-Leste, Braga: Direitos Humanos – Centro de Investigação Interdisciplinar, 2011: 288

[ii]Jose Ramos-Horta, “O modelo semi-presidencial que temos é adequado à realidade timorense” in R. G. Feijó (ed), O Semi-presidencialismo Timorense, Coimbra: CES/Almedina, 2014: 77-78

Timor-Leste – “Belligerent cohabitation” at work

One week after the parliamentary elections that returned an absolute majority for the AMP coalition (comprising former president Xanana Gusmão’s CNRT, former president Taur Matan Ruak’s PLP and a youth-oriented KHUNTO) but awarded the current president’s Fretilin the largest bloc of seats in the House (the party being unable to capitalize on its five percentage points increase in the number of votes due to a different composition of running parties), president Lu Olo addressed the nation on the occasion of the 16thanniversary of the restoration of independence (and the first of his assuming the presidency). In his speech, Lu Olo made three very important points

  1. He claimed he would discharge his functions as “president of all Timorese” but would not give up his position as chairman of his own party. This was no more than the confirmation that for the first time Timor-Leste would have a president who is aligned with one specific party, all his predecessors having been “independent” without party ties (although two of them did form their own parties after stepping down, in order to run for the seemingly more powerful premiership);
  2. He stated he would be particularly attentive to “the national interest” of which he argued the president is the highest and more authoritative interpreter;
  3. He reaffirmed is willingness to use all the constitutional powers at his disposal, contradicting those who expected that after a significant political defeat (he called early elections that did not change the nature of the distribution of power among competing parties and his own party failed to secure the bases to form or integrate the new government) he would assume a lower profile

In brief: Lu Olo made it plainly clear his would be a very active presidency not shying away from confrontations when he would feel it necessary to intervene. He was comforted by the fact that a substantial number of cases to overturn a presidential veto require a two-thirds majority  – and his party had more than one third of the parliamentary seats. Cohabitation was emerging under the sign of “belligerent democracy”. A sign of this general attitude was Fretilin´s decision to threaten with expulsion any militant who might be tempted to accept a place in government in a “personal and technical capacity” as had been current in the country for over a decade. A new era is definitively making itself present, eventually making political decisions more transparent and in line with normal expectations on parties’ behaviour.

The first serious confrontation occurred with the formation of the VIII Constitutional Government. Contrary to early expectations (based on declarations in the aftermath of the elections), Xanana declined to assume the premiership, entrusting the job to Taur Matan Ruak (TMR), leader of a much smaller party (8 seats versus 21), and reserved for himself the role of “state minister councillor to the prime minister”. TMR was sworn in as prime minister and proposed to the president a cabinet with 41 full ministers and junior ministers. Lu Olo rejected 12 of those names. One of them was personally close to the new prime-minister, and the refusal was explained on strict bureaucratic terms: as he was serving in the high command of the armed forces, he would need his resignation from the previous post to go through the necessary legal steps. In due course, he was appointed to serve as minister for defence. As for the other 11 – all of whom belonged to Xanana’s CNRT, the only party in the coalition with government experience – the reason given was that two of them had not “the right moral profile” and the others were supposedly under investigation by the judicial authorities on corruption charges.

Although the president denied that he had vetoed names, but only “called the attention of the prime minister” to situations that might harm the public opinion on the government, he also claimed he “was intent on reinforcing the judicial system” by not granting immunity to some politicians that had, in the past, benefitted from their status to avoid immediate prosecution (an allegation directed at Xanana who, as prime minister, had asked parliament to keep some of his ministers under conditions of immunity till the end of their terms). Regarding the use of his powers, he said: “The choice of ministers belongs to the majority in the House. The president may not say that this one is more capable than the other. He has to wait and see, only later can he interfere”. But at some point, he can actually interfere by refusing to appoint ministers.

Lu Olo’s interference in the composition of government generated a first moment of tension within the coalition. The prime minister seems to have accepted the president’s opposition to empowering individuals tainted with corruption charges in a country where this is a critical issue as constitutionally and politically warranted, and showed signs of pressing his coalition partner to propose new names.  TMR was also prisoner of his own public rejection of a minister when the V Government was formed soon after his election for the presidency back in 2012, and thus very limited in his capacity to deny Lu Olo the power to reject some of his ministers. Xanana, on the other hand, received the news as a personal attack, and reacted angrily: he and few other ministers from his party failed to take the oath, leaving the government with sensitive portfolios without their ministers. Besides the strong portfolio entrusted to Xanana, the minister for finances is among those remaining vacant due to presidential opposition. In parallel, he mounted an attack on the president. On the one hand, he claimed he had received undue payments from the state related to his presidential campaign – an accusation that failed to gain traction; on the other, he claimed that not only was the president disregarding the principle of presumption of innocence, but that he had acted in a completely different manner when Mari Alkatiri presented the composition of the VII Government in which four members were also under judicial investigation. He also made public statements from judicial authorities allegedly denying the basis for the president’s attitude.

In the meantime, arguing the inconvenience of the absence of the president from the country at a time when there was only “half a government”, the National Parliament denied the president’s request to undertake a state visit to Portugal which had been scheduled for quite a while. This move was openly criticized by the commander in chief of the armed forces, a move that does not bode well for the neutrality they are supposed to keep, and add a new player to an already confusing situation

The VIII Constitutional government, which is ruling under the provisions of the 2017 state budget in 1/12 monthly instalments, approved a piece of emergency legislation destined to raise funds from the Petroleum Fund in order to meet its financial obligations. However, the sum in question is above the Estimated Sustainable Income of the fund, and expectations are high that the president might use his veto power to put additional pressure on the government, which might be unable to meet its monthly obligations (and therefore suffer in its level of popularity)

At the time of writing, time is ticking for the government to present its program before the House, which must occur within thirty days of the appointment of the prime minister (22 June). Devoid of key ministers, the prime minister has conducted cabinet meetings open to those who have been rejected by the president to help with drafting the program. It is not clear what will happen if the deadline is broken, but grounds might emerge for the president to consider that political institutions are not performing adequately – a case allowing for the dismissal of the prime minister

The tension between the president of the republic and the leader of the winning coalition is unprecedented. It rests to be seen whether Lu Olo and his party are not attempting a political move to break the coalition between Xanana and TMR, who appears to be more sensitive to the president’s arguments on corruption, and suggest a change of horses: Fretilin might be prepared to switch the leadership of the opposition with CNRT. In Dili, voices are heard calling for yet another dissolution of parliament and fresh elections, which in any case could not be decided before mid-November to be held in 2019.

The present situation in Timor-Leste has revealed that presidential powers, even though they may be dormant for a while, do not lapse by virtue of not being exercised. And presidential powers in the country are superior to what much of the literature has argued so far. Critically, the dual responsibility of the government before the parliament and the president of the republic (stated in section 107 of the Constitution), and the ways in which this prescription can legitimately be understood by a proactive president, require new consideration. Ultimately, the scope of effective powers of the president may be regarded as the reason for the current instability, much as the argument has been made for president-parliamentary systems.

The fact that Lu Olo seems to be adopting a proactive role should not be isolated from the fact that he is the first president who discharges his functions at the same time that he holds a high position in a political party – Fretilin – which is not represented in TMR’s government. The effective experience of cohabitation in its formal sense is a novelty, as the first three presidents were “independent”. Their terms were comparably more stable that the early part of Lu Olo’s term (disregarding the case of the 2006 crisis which had deeper roots), adding weight to the suggestion that the political wisdom of choosing non-partisan presidents reduced the prospects and the scope of confrontation that the constitutional model of dual responsibility of the executive might facilitate. With the decision to move away from the legacy of the previous experience, Timor-Leste is now confronted with a much more unstable situation.

Rui Graça Feijó – Timor-Leste after the parliamentary elections: Cohabitation in sight

This is a guest post by Rui Graça Feijó of the Institute for Contemporary History, New University of Lisboa

In March 2017, breaking with the established conventions following the first three elections in independent Timor-Leste (2002, 2007, 2012), voters returned a president, Francisco Guterres (known as Lú-Olo), who was affiliated with a political party – Fretilin. Guterres was chairman of the party, which is an honorary position rather than an executive one, reserved for the secretary-general. Although President Guterres claimed in his inauguration speech that he would serve as “the president of all the Timorese”, like his predecessors, he did not relinquish his position in his party.

In the July 2017 legislative elections, the president’s party, which had campaigned for the continuation of a broad coalition which included all parliamentary parties to date, topped the poll by a mere 1,000 votes over the country’s historic leader Xanana Gusmão’s CNRT party. Surprisingly, the parties that had created the outgoing “Government of National Inclusion” could not agree to continue it and Lú-Olo appointed the first minority government, composed of Fretilin and Partido Democrático / Democratic Party (PD), who had the support of only 30 of the House 65 seats. The VII Constitutional Government failed to secure its investiture in the National Parliament, and after several months of political confrontation (see my post of January 30), fresh elections were called for 12 May 2018. During this period, Lú-Olo sided openly with his party – first, trying to set up a minority government of which there was no previous experience in Timor-Leste; then, keeping it in power as a caretaker government (i.e., not fully invested) for a long period; and finally, denying the opposition that had formed a majority coalition a chance to form a government, and dissolving the parliament. These were high stakes, and the political status of the president became dependent on the voters’ decisions.

On May 12, voters turned out in very high numbers (officially over 80% voted). Fretilin gained votes, going from 29.7 to 34.2 per cent, but could not improve on its 23 seats. Its ally, PD, suffered a loss from 9.8 to 8 per cent, and reduced its representation from 7 to 5 MPs. The combined vote of the member parties of the Aliança de Mudança para o Progresso / Alliance for a Developmental Change (AMP) increased 46.5 to 49.6 percent, losing one seat but retaining an overall majority of 34. The remaining three seats were won by another coalition of smaller parties, which polled 5.5 per cent. The fact that the number of parties/coalitions on the ballot paper in 2018 fell from 22 to just 8 allowed a group of 4 smaller parties running together to reach the 4% threshold for election. The percentage of votes gained by parties that failed to secure a seat fell from 14.1 to just 6.7 per cent. This had an impact in the overall distribution of seats, and account for why an increase in the vote did not translate into a comparable gain of seats both for Fretilin and AMP.

The campaign was conducted with high passion. Few incidents were registered, though, and international observers returned the verdict of a “free and fair” election. However, a few days after results were officially proclaimed, Fretilin filed a protest with the Court of Appeals, claiming to have proof of “electoral crimes”. This protest may delay the inauguration of the new parliament, and is testimony to the high level of political confrontation that is currently marking the situation in Dili.

Xanana Gusmão, who was president from 2002 to 2007, prime minister from 2007 to 2015, and minister in the “Government of National Inclusion” (2015-2017) is scheduled to return as prime minister of the VIII Constitutional Government. At the time of writing, it is not clear whether this government will be based solely on the three parties that constitute the AMP (Xanana’s CNRT; the previous president Taur Matan Ruak’s Partido da Libertação do Povo / People’s Liberation Party (PLP), and KHUNTO), or whether it will be willing to enlarge its support base in parliament. Fretilin assumed it had lost and would become an opposition party. PD is “considering its position”, but is not certain of being offered a position in government. The same holds for the coalition that secured three seats. In any case, Fretlin with its 23 seats is capable of denying any government the two-thirds majority required to eventually overturn any presidential vetoes (namely on the budget and on basic legislation on education, health and social security, as well as all the items contemplated in section 95 of the constitution).

President Lú-Olo addressed this issue on the occasion of the first anniversary of his election (and the sixteenth of the proclamation on independence), recalling that he had sworn to be faithful to the constitution and exercise the full range of powers invested in him. Moreover, he declared that an overall majority may result in the formation of a new government, but that he would not grant the government a “a blank cheque”. Rather, the government would have to comply with “national interests” of which the president is supposed to be the guarantor and interpreter. In a way, Lú-Olo was responding to Xanana and Taur Matan Ruak who said that “the president must act as the leader of the nation and not as the chairman of Fretilin”. Lú-Olo may be willing to explore the full scope of presidential powers on a scale never witnessed before, while respecting the letter of the constitution.

Xanana is known to favour a generational turnover, and for a long time he was the main force behind the idea of a “Government of National Inclusion”. It is uncertain how he will face his new task as prime minister, whether as one that will engage him for the duration of the legislature, or as a sort of interim solution before the re-composition of political forces has the chance to settle down in a more permanent form. In fact, one of the major features of these elections was the return to the forefront of historical leaders (the Gerasaun Tuan, the old generation) such as Mari Alkatiri and José Ramos-Horta (who campaigned for Fretilin) and Xanana or Taur Matan Ruak (although the letter is perhaps a bridge to the Gerasaun Foun, the younger generation of people who became adults under the Indonesian occupation). Personalities are still powerful political forces, and parties tend to play a secondary role. This makes the political situation less transparent, as the mood among those historical leaders tends to float significantly.

Unless a new, unexpected development takes place, the stage is set for the first formal cohabitation between a president who is member of a political party and is willing to use the full breadth of his constitutional powers, and a prime minister who heads a government in which the president’s party is not present – moreover, a government which considers the president’s party to be the leader of the opposition. The scars of the president’s attitude during the period following the previous elections, when he sided openly with his party and made no openings to the majority opposition are still visible. Lú-Olo played a high-risk game, and electors did not support his view that Fretilin should return to lead the government. Developments after the votes were counted suggest that cohabitation will entail some degree of friction between the president and the new government. The fact that Taur Matan Ruak while serving as president vetoed a budget in 2015, and has kept a critical view of the orientation followed by the “Government of National Inclusion” in which Fretilin discharged critical functions, raises questions as to the platform that will sustain the new government. It is likely to produce a budget that Fretilin will oppose. A major test of the cohabitation between president and government may not be too far away, as the political crisis of last year prevented the approval of the budget for 2018 and this is now a top priority in the country.

For all those who follow the debate on semi-presidentialism and its varieties, and who are interested in the study of presidential power, Timor-Leste is likely to be a crucial case in the coming years.

Senegal – Sall vs. Sall

Senegal is preparing for legislative elections on July 2, 2017. In the country’s semi-presidential system, the prime minister and cabinet are responsible to both the president and the legislature. A legislative majority in opposition to the president can force out the prime minister and cabinet through a vote of no confidence. This could theoretically result in a situation of cohabitation – where a president and prime minister from opposing parties/coalitions have to share executive power.

Senegal has never experienced cohabitation and President Macky Sall surely hopes he will not be the first president to explore this uncharted territory. A new opposition coalition with the participation of Dakar’s mayor Khalifa Sall (no family relation) hopes to the contrary to wrestle away the majority from the presidential coalition in the July elections.

President Sall’s coalition, Benno Bokk Yaakaar (BBY), controls a comfortable majority of 119 seats in the sitting 150-seat unicameral legislature, with the remainder distributed across 12 parties or coalitions. With two years remaining of his first, seven-year term, will Macky Sall be able to maintain control of the National Assembly in the upcoming polls?

The government’s performance record appears at face value to be good. The economy is doing well, with above 6 percent growth in Gross Domestic Product (GDP) over the past two years, a trend the International Monetary Fund (IMF) expects to continue this year. Senegal has become one of Africa’s fastest growing economies, the fiscal deficit is falling, and after Tunisia, Senegal is only the second country in the world to adopt a new national digital currency – the eCFA. According to Transparency International, the fight against corruption has progressed, with the adoption of a number of anti-corruption reforms and the creation of a Ministry for the Promotion of Good Governance Responsible for the Relations with Institutions.

So why is the well-known youth group Y’en a marre in the streets, protesting against Macky Sall in an unlikely alliance with the Parti démocratique sénégalais (PDS), the party of former President Abdoulaye Wade? Y’en a marre was instrumental in mobilizing the youth vote in particular, in opposition to Wade’s attempt at securing a third term in 2012 when he ran against Macky Sall in the presidential run-off. What has happened to turn former friends into foes, and former foes into friends?

Y’en a marre cannot forgive Macky Sall for going back on his word (wax waxeet in Wolof – a bad habit of Senegalese political leaders according to the creators of the wax-waxeet.com monitoring website): Sall had promised during his campaign that he would reduce the length of presidential terms from seven to five years with immediate effect — to include his first term. However, instead of submitting a bill to revise the constitution accordingly for approval by the National Assembly — where it would likely easily have received the required 3/5 of votes to pass without requiring a referendum — Sall waited four years to consult with the constitutional court, in 2016. The court found that changing the duration of an ongoing presidential term would be against the spirit of the constitution and constitutional practice. Sall therefore declared in February 2016 that he would comply with the finding of the constitutional court and serve the full length of his first mandate. Constitutional revisions adopted a month later do include a provision for the reduced term-length, but it is a change that will only be applicable to his next term.

In addition to breaking a promise, Y’en a marre and opposition parties also accuse President Sall of having instigated the arrest of Khalifa Sall in March of this year on trumped up fraud charges. Khalifa Sall is a likely presidential candidate and strong challenger to Macky Sall in 2019. An attempt to dislodge him from his prominent position as mayor in Dakar by President Sall’s party (though the parties of the two Salls both belong to the ruling coalition) failed in 2014 [see earlier blogpost here].

Since his arrest, Khalifa Sall has joined forces with the PDS, the Rewmi party of former Prime Minister Idrissa Seck and others, to form a new coalition, Manko Taxawu Senegaal (Accord to Watch over Senegal), which will field joint lists for the legislative polls.

The legislative election campaign is getting off the ground. The election outcome will be an early indication of the relative popularity of the two Salls, as the 2019 presidential poll approaches.

France – Macron and Cohabitation: Don’t Worry About It

On Sunday, Emmanuel Macron topped the poll at the first round of the French presidential election. This was in line with the polls, but it marked a shift in established French politics. Since 1981, elections have been won by candidates of the mainstream left or the right. These candidates have either immediately dissolved the legislature and returned a supportive majority, or they have won such a majority at the legislative elections that since 2002 have been held a month after the presidential election. The bottom line is that French presidents since 1981 have effectively begun their term in office with majority support in the legislature.

Macron is different because he is a centrist. He is also different because he does not have an established political party backing him. His movement is called en Marche! (or On The Move!). Macron is likely to win the second round of the presidential election. However, he has not yet chosen en Marche! candidates for the legislative elections that take place on 11 and 18 June. There are 577 seats to be elected at these elections. This has led to fears or speculation that Macron will not win a legislative majority in the June elections. Worse, it has led to claims that Macron would immediately be faced with a period of cohabitation. In this context, it is worth thinking a little about what is meant by cohabitation and why Macron is unlikely to have to worry about it.

Cohabitation is defined as the situation where the president and prime minister are from different and opposing parties and where the president’s party is not represented in the cabinet at all. France provides the archetypal examples of cohabitation. Here, it has occurred three times – 1986-88, 1993-95 and 1997-2002. Cohabitation occurs because a party or coalition opposed to the president has an absolute majority in the legislature. This forces the president to appoint a PM and government that has the support of that majority and, therefore, that is also opposed to the president. The president is alone in the Council of Ministers without any supporters.

In this context, it is also worth thinking a little about what cohabitation doesn’t involve. It isn’t the situation where the president has formed a governing coalition that includes his supporters, perhaps including the prime minister, but where relations with the legislative majority are difficult, and where the president is unable to pass legislation in exactly the form that she wants. In other words, a weak, constrained, or even legislatively emasculated president is not necessarily a cohabitation president.

Cohabitation, therefore, is a very specific situation. It is clearly observable. Here is a list of all cohabitations that have ever occurred.

So, assuming Macron is elected president on 7 May, will he face a period of cohabitation six weeks later following the legislative elections? Matthew Shugart has convincingly argued that he will not. I agree. No period of cohabitation has never occurred when a presidential election has been followed by such a quick honeymoon legislative election. (In Portugal, the January 1991 presidential election was followed by the October 1991 legislative election. So, it is questionable whether this was a honeymoon election at all. Also, there was cohabitation prior to the presidential election, after the presidential election, and the legislative election confirmed the period of cohabitation. So, the political context was very different. A similar point applies to the Czech Republic after the January 2013 presidential election.) Cohabitation just doesn’t happen under the circumstances that will soon occur in France. So, don’t worry about it.

This is not to say, though, that any future President Macron will necessarily be supported by an en Marche! majority in the Assembly. French political history suggests various scenarios are possible in this regard.

The 1988 presidential election provides one possible scenario. Then, President Mitterrand dissolved the legislature immediately after his re-election. The Socialist party and their allies were returned with only a relative majority, but the divided opposition meant that the socialists were nonetheless able to govern effectively for the next five years without forming a coalition.

A further scenario is the one that occurred in 1958. This was the founding legislative election of the new Republic. It was before France had direct presidential elections. So, the context was very different. However, it did follow the referendum on the Constitution in September 1958, which was effectively a plebiscite on de Gaulle. At the November 1958 election the gaullist party was returned with only a relative majority. However, other deputies who were returned under a different party label were willing to support de Gaulle. My understanding is that some of these deputies were given the support of the gaullists at the election itself. So, they owed their election at least in part to de Gaulle. The government was a coalition, but the coalition also had the support of other deputies within the Assembly. Macron has promised to stand en Marche! candidates everywhere, but if he is not able to select 577 of them between 7 May and the elections, he may simply endorse existing right and left-wing deputies. With a cohort of en Marche! deputies and the support of these others, he is likely to reach a working majority. Even if he does stand candidates everywhere, he is still likely to endorse candidates of other parties at the second ballot of the legislative election in constituencies where his en Marche! candidates have been defeated. This could be difficult for Macron to manage and maintain, but it will not be cohabitation.

The other scenario is more straightforward. Macron may simply form a coalition with other parties. The Socialist party is likely to splinter after the election. There are also centrist and centre-right parties such as the UDI and Modem. With his en Marche! deputies, Macron may be able to build a coalition along the lines of the one forged by President Giscard d’Estaing in the mid-1970s. This could also be problematic to keep together in the long run, but it is not cohabitation.

So, parliamentary politics after the June legislative elections in France will be interesting and could be difficult for Macron, but commentators should not unduly worry about cohabitation occurring. Certainly, commentators should stop labelling something as cohabitation that isn’t.

Romania – President postpones anti-corruption referendum

Romania’s fourth spell of cohabitation between centre-right President Iohannis and PM Grindeanu of the Social-Democratic Party (PSD) seems to contain all the key ingredients of high inter-executive conflict: a tense relationship between the president, the cabinet and the parliament fuelled by mass anti-government demonstrations, referendum threats, and the ever present warnings of presidential suspension.

For several weeks in January and February 2017, Romania has seen some of the largest anti-government demonstrations since 1989. Thousands of people have taken to the streets to protest government plans to decriminalise official misconduct and commute sentences for some non-violent criminal convictions. The government maintained that the amnesty and pardon measures were necessary in order to get the Criminal Codes in line with recent Constitutional Court rulings, reduce prison overcrowding, and prevent sanctions from the European Court of Human Rights due to the poor quality of detention conditions. However, the avoidance of transparent public debate on such important issues and the use of nearly clandestine means to pass draft decrees were perceived as attempts to reverse the anti-corruption fight led by the country’s national anticorruption directorate (DNA) and its chief prosecutor Laura Codruţa Kövesi.

President Iohannis has played an active role during the protests. Since the beginning of his new cohabitation with a Social-Democratic government, the head of state singled out the continuation of the anti-corruption fight as one of his priorities for the rest of his term. Thus, as soon as the new ministers’ took office in early January, he warned them against trying to pass amnesty and pardon legislation that would potentially undermine Romania’s anti-corruption efforts. Then he prevented the government’s first attempt to pass the draft emergency decree regarding the pardon of certain detainees and the amendments to the Penal Code by showing up unexpectedly at the cabinet meeting held on 18 January. The government’s plan to commute some sentences was also criticised by members of the judiciary, including the General Prosecutor and the Supreme Council of Magistracy (CSM).

On 22 January, the president joined protesters in Bucharest, who demanded that the government abandons the emergency ordinance and other plans to weaken the rule of law. Critics said his involvement in the protests was a flagrant violation of his constitutional role as a mediator between political actors. The following day, the head of state took another step forward in his confrontation with PM Grindeanu’s cabinet and announced his intention to put the government’s amnesty bill to referendum. Under Article 90 of the Romanian Constitution, the president can call a consultative referendum on a “matter of national interest”. The parliament needs to be consulted, but obtaining its approval is not mandatory. However, as the Constitution does not allow organising polls on fiscal matters, amnesty, or pardon, the referendum topic was transformed into the continuation of the fight against corruption and the integrity of the public office.

PSD leader and Chamber of Deputies Speaker Liviu Dragnea reacted by announcing that the government also plans to hold two new referendums in spring: one on the definition of traditional family, which would effectively translate into a constitutional ban on same-sex marriage and adoptions by same-sex couples; and the other one on removing immunity for elected officials, including the head of state. Proposals to hold the government and the president’s referendums on the same day were also made.

As it is known, the cabinet went ahead and adopted the controversial emergency ordinance 13 (OUG13) that decriminalised official misconduct in which the financial damage was less than 200,000 lei (€45,000) in a late-night session cabinet meeting on January 31. The decree also reduced penalties for corruption offences such as abuse of office, conflict of interest, and negligence at work. Following a week of mass anti-government protests that took place across the country on an unprecedented scale, the emergency ordinance was repealed on 5 February before it went into effect. Soon afterwards, the justice minister responsible for the decree stepped down as well. Nevertheless, some protests have continued since then because people are not convinced that the government has given up plans to free corrupted officials.

On 7 February, after the joint legal committees of the Chamber of Deputies and the Senate gave a unanimous favourable opinion for the organisation of the referendum, President Iohannis reinforced his commitment to call the referendum as soon as the parliament provided a final response. However, since the parliament approved unanimously the referendum request on 13 February, the president has delayed giving details about the date or the referendum question. More recently, he announced that he has not abandoned the idea of the referendum, but he intends to use it as “insurance policy” in case the government attempts another attack on justice.

The decision to postpone the referendum is motivated by the fact that the street protests alone were successful in forcing the government to repeal the graft decree. In other words, calling the referendum now would be a wasted opportunity to hold the Social-Democrats accountable for an action that has already been reprimanded by the civil society. As the amendment of the Criminal Codes has moved into the parliamentary arena, the referendum threat could be better used as a bargaining tool to ward off future attempts to weaken the criminal law or attack key institutions of the judiciary like the DNA.

There is also the concern that, in the absence of a mobilising question, the referendum could fail because of low voter turnout. The participation threshold for the validation of a referendum has undergone several changes since 2007, when the first referendum to impeach President Băsescu was called. Currently, turnout must surpass 30% of the registered electorate and at least 25% of the votes must be valid for a referendum to be passed by the Constitutional Court.

Recent events suggest that new clashes between the government and the head of state on anti-corruption issues may be imminent. For example, the PSD leader of the legal committee in the Senate proposed several amendments to the pardon draft bill adopted by the Grindeanu cabinet that pardoned corruption crimes like passive and active bribery, influence peddling, and abuse of office. Under pressure from Vice-President of the European Commission Frans Timmermans and his party leader Dragnea, the senator accepted to withdraw the controversial amendments but only after their debate in the committee. Similar attempts to weaken the anti-corruption legislation cannot be ruled out.

The new Justice Minister is also mounting pressure on the DNA chief prosecutor and the general prosecutor. His attack comes after a recent ruling of the Constitutional Court, which found that the DNA had gone beyond its duties in the investigation on how the government drafted and adopted the controversial OUG13. Moreover, according to the Court decision, the DNA disrupted the normal functioning of the Government and the relationships that must exist between the judicial, executive and legislative. Promptly, the Justice Minister promised to evaluate the activity of the anti-corruption directorate and the public ministry, going as far as to suggest that the general prosecutor Augustin Lazăr and the DNA head Codruţa Kövesi should step down before he makes a decision.

However, the removal of the general prosecutor and the DNA head from office cannot be attained without the president’s agreement, who is unlikely to co-operate on the matter. In fact, following the justice minister’s statement, the president declared himself satisfied with the activity of both chief prosecutors. Coincidently, though, a draft bill introduced by the Senate Speaker Călin Popescu-Tăriceanu that aims to change the system of key nominations in the judiciary is now under debate in the legal committee. While currently the head of state appoints and removes chief prosecutors on the proposal of the justice minister and the Superior Council of Magistracy (CSM), under the new law the appointment and removal of top prosecutors would be decided only by the CSM.

The ruling PSD-ALDE coalition might also entertain the option of suspending the president. The possibility was first evoked in December 2016, when President Iohannis turned down PSD’s first nomination of Sevil Shhaideh as prime minister without motivating his decision. Since then, the president recidivated and angered the leaders of the ruling coalition on a number of occasions – for example, when he showed up unexpectedly to chair the cabinet meeting on 18 January;  when he joined anti-government protesters; when he asked the CSM and the Ombudsman to notify the Constitutional Court about the conflict between the government and the judiciary and challenge the constitutionality of OUG13; and when he delivered a harsh speech in parliament on 7 February. Consequently, on 8 March, the parliament adopted a political declaration that accused President Iohannis and the CSM of “abuse of law” and “usurpation” of the parliament’s right to hold the government accountable. Both the president and the CSM had filed complaints to the Constitutional Court about OUG13 that were eventually dismissed by the Court. The parliament’s act does not have any immediate consequences, but it was interpreted as a way of putting pressure on the president and the judiciary and even as a first step towards suspending the president.

Thus, given the multitude of tactics that ruling Social-Democrats can deploy to get their way with passing the controversial changes to corruption laws through parliament, the president might not need to wait a long time before he decides to play the referendum card. The role that the opposition parties will play in this process remains to be seen. The National Liberal Party (PNL) and the Save Romania Union (USR) continue to be divided, searching for strong leaders and a clear vision of how to react to current events. The two parties were only able to co-operate in calling a no-confidence vote against PM Grindeanu’s cabinet, which was easily defeated on 8 February. Both parties will be electing their leadership in the national congresses that will take place in May (USR) and June (PNL). In the meantime, former PM Dacian Cioloş has taken the first step towards establishing a new political party and seems to have abandoned plans to join either PNL or USR.

Burkina Faso – Interesting constitutional innovations

It’s here – Burkina Faso’s new draft constitution. The constitutional review commission presented the results of its deliberations on January 10th. The 92-member commission — with representation from the ruling MPP-party, opposition parties (including the CDP of former President Blaise Compaoré) and civil society (including labor unions and traditional authorities) — was officially seated on September 29, 2016 by President Roch Marc Christian Kaboré. The commission is charged with proposing a new constitution that will institute the country’s Fourth Republic.

So what is in this proposed new constitutional text? What are its key provisions in terms of presidential power, executive-legislative relations and term limits?

First of all, the intent is to keep a semi-presidential regime, with a directly elected president and a prime minister accountable to the legislature. The president must appoint a prime minister “from within the legislative majority,” after consulting with that majority (Article 66). Those provisions are the same as in the current constitution from 1991, last amended in November 2015 by the National Transition Council.

Interestingly, Article 56 of the new draft constitution specifies that in the event that the prime minister is backed by a legislative majority which does not support the president, “both have to determine by consensus major policy orientations in the greater interest of the Nation.” Article 56 continues: “In the absence of consensus, it is the Government [i.e. the prime minister and cabinet] that determines and conducts the policy of the Nation.” This is an innovation compared to the current constitution.

In other words, in the event of a conflictual cohabitation between a president and a prime minister from opposing parties, executive power would swing to the prime minister. On the other hand, the president would retain the power to dismiss the prime minister “in the higher interest of the Nation” (Article 66), as is also currently the case. As in the present constitution, a new prime minister and cabinet would require legislative approval within 30 days of being appointed (Article 87), through a vote on the government’s policy statement.

The president’s power of initiative to dismiss the prime minister would keep Burkina Faso in the camp of president-parliamentary regimes, per Shugart and Carey’s (1992) definition. The president may also dissolve the legislature and call for new elections (Article 70), but cannot do so again till 12 months have passed since the last dissolution (same as today’s constitution). Conversely, it would only take 25 percent of legislators to initiate a censure vote against the government (Article 115), as opposed to 30 percent in the current constitution.

The president would keep his reserved policy domain, in the area of defense policy. The head of state is the commander in chief and appoints the Chief of Staff of the Armed Forces. The president is thus responsible for determining the strategic orientations of the national defense policy and for chairing the National Defense Council (Article 72). This would be a significant power to retain, in the event of cohabitation.

The proposed constitution maintains presidential term limits at two 5-year terms. It was the attempted removal of this term-limit provision which brought about a popular uprising that led to the fall of former President Compaoré in October 2014. An absolute majority of votes is required to win the election, with a run-off if no candidate is able to secure such a majority in the first round (Article 57). An important innovation is the “locking” (‘verrouillage’) of presidential term limits by including them among those intrinsic democratic elements of the constitution (listed in Article 192) that cannot be changed (along with the republican and lay nature of the state, multipartism, and the integrity of the national territory). Another interesting novelty is the introduction of term limits also for legislators (a maximum of three 5-year terms, Article 101). Furthermore, a deputy may serve a maximum of two terms as president of the national assembly (Article 107).

Finally, changing the constitution without recourse to a referendum would become more challenging: it would require a 4/5 legislative majority of members of parliament (Article 190) to pass changes without the need for a popular vote, compared to 3/4 of the members of the legislature as is currently the case.

Next steps: the draft constitution will be discussed in popular forums to be held in all 13 regions of the country and also shared with the diaspora in countries with a significant concentration of Burkinabe immigrants.  The text will thereafter be given to the president for comment and then finalized by the commission before submission to a popular referendum. It will be interesting to see if the proposed innovations – notably with regards to the division of executive powers in the event of disagreements between president and prime minister from opposing parties – will survive in the final version.

Romania – The politics of the fourth cohabitation

Less than a month after the general election held on December 11, a new government formally took office in Romania. As anticipated, a two-party coalition was formed between the Social Democratic Party (PSD), represented by 221 MPs in the 465-seats bicameral parliament, and the Alliance of Liberals and Democrats for Europe (ALDE), which holds 29 seats. The Hungarian minority party (UDMR), which won 30 seats in the election, signed a parliamentary support agreement with the ruling coalition but decided to stay out of government. Counting in the support of the 17 representatives of the national minorities, the government majority is only 13 seats shy of the two-thirds majority required for a constitutional amendment. The two ruling parties also seized the top legislative posts: PSD’s chairman Liviu Dragnea claimed the leadership of the Chamber of Deputies, while the Senate presidency went to the ALDE leader and former prime minister Călin Popescu-Tăriceanu.

While little time was spent on PSD-ALDE coalition negotiations, President Iohannis’ involvement in government formation delayed the appointment of a new prime minister and came close to triggering a new constitutional crisis. The Constitution grants the head of state some discretion in identifying a prime minister candidate, but the final decision on the approval of a new government rests with the parliament. The president’s actual influence on who gets the PM post depends on political context and is usually limited to situations when either a presidential majority exists in parliament or a deep political crisis opens a window of opportunity for the head of state to put together a “crisis-solving” government. The latter scenario took place in November 2015, when President Iohannis appointed a technocratic government led by former European Commissioner for Agriculture Dacian Cioloş after the then PSD government led by PM Ponta stepped down amid country-wide anti-corruption protests. As the National Liberal Party (PNL) together with the other centre-right groupings barely control 36% of the parliamentary seats in the current legislature, the head of state seemed to have hardly any leeway in the exercise of his PM appointment powers.  However, President Iohannis found a way to hinder PSD’s efforts to dictate the formation of the post-election government.

First, he used a 2001 law that forbids convicted persons to be appointed to government as a legal ground to bar PSD’s leader Liviu Dragnea from becoming prime minister on account of a two-year probation sentence for electoral fraud he received in 2015. Dragnea admitted he was unable to claim the PM post for himself “for the time being”,  but made it clear he had a free hand from the party to make appointments to cabinet and hold the executive accountable for its actions. Consequently, his first nomination for the PM post was Sevil Shhaideh, a PSD member without a personal power base in the party but one of his longstanding collaborators and loyal supporters. President Iohannis rejected Shhaideh’s nomination without formally motivating his decision. Her Syrian husband’s ties with President Bashar al-Assad’s regime was however seen as the main reason for the president’s unprecedented move to turn down a PM nomination. The PSD-ALDE coalition reacted with threats to initiate the proceedings for the president’s impeachment. This episode ended with President Iohannis’ acceptance of the Social Democrats’ second proposal for prime minister. Sorin Grindeanu, a relatively unfamiliar figure for the general public despite having been a minister in the PSD government ousted in November 2015, presented his cabinet and won the parliament’s investiture vote held on January 4 with 295 votes against 133.

PM Grindeanu’s cabinet profile: “politics is made elsewhere”

 Ministerial portfolios in PM Grindeanu’s cabinet are distributed among the two parties in strict proportion with their legislative seat-shares.

While most members in PM Grindeanu’s cabinet have some experience in national or local politics, few of them are high-profile politicians. About half of the ministers, including PM Grindeanu and deputy PM Sevil Shhaideh, have held posts in previous PSD cabinets. They occupy more or less the same portfolios they held before, despite having left few notable traces in their respective domains. Some of them come from local public administration (Sorin Grindeanu and Sevil Shhaideh fit this profile as well). Only half of the ministers were selected from among the sitting parliamentarians and not many of them have been key figures in their party’s national or local organizations. Moreover, despite PSD’s heavy criticism of the previous government’s technocratic nature, three of the cabinet members have no formal political affiliation. Additionally, several ministers are involved in corruption investigations or other controversies. As a matter of fact, PSD’s governing programme does not contain any references to continuing the fight against corruption.

Arguably, the ministers’ lack of personal notoriety makes them more susceptible to direct party control. The prime minister himself is better known as a local politician, due to his recent election as president of the Timiş City Council, despite having been a deputy in the 2012-2016 legislature and a minister in PM Ponta’s last cabinet. Although a longstanding PSD member, Sorin Grindeanu has never held a key position in the party’s national executive. That said, it is not unprecedented for a prime minister not to be a party leader as well. For example, PM Ponta stepped down as PSD leader in July 2015, after prosecutors from the National Anti-Corruption Directorate (DNA) opened a corruption investigation against him (ironically, he was succeeded as party leader by Liviu Dragnea, who had already received a one-year suspended jail sentence for electoral fraud). Even in the French Fifth Republic, where control over the party machinery is often thought a prerequisite for the exercise of key executive roles, Lionel Jospin willingly resigned as leader of the Socialist Party before taking office as prime minister in 1997 (also at the beginning of cohabitation with President Chirac). In these cases, though, the prime ministers’ political authority over their governments’ actions and even on their parties was not questioned. This is hardly the case with PM Grindeanu, who lacks a personal power base in the party. In fact, one might be hard pressed to find another example of a prime minister stating that his cabinet has a purely administrative role, as “politics is made elsewhere”.

All important decisions following the general election have been announced by PSD’s leader Liviu Dragnea, including the formal presentation of PM Grindeanu’s list of ministers. In fact, he repeatedly stated that the government is directly accountable on the party line and that he will personally monitor each minister’s performance. Dragnea has also taken over announcements concerning the steps taken by the government to fulfill the generous promises of the Social-Democratic programme, such as the swift elimination of the income tax for small pensions. Thus, as leader of the main governing party and president of the Chamber of Deputies, Liviu Dragnea possesses all essential tools to control and speed up executive actions, acting as the country’s most powerful politician.

President Iohannis’ role in the fourth cohabitation

Although this is Romania’s fourth spell of cohabitation, it is the first time that a general election brought it about. There are good chances it will also be Romania’s longest cohabitation to date, as the next presidential election is not due before late 2019. Therefore, one can only speculate about the role President Iohannis will choose to play from now on, especially if he intends to run for a second mandate. Granted, it is too early to tell if he will attempt to redefine his role as the leader of the opposition, like his predecessor did in 2007 and 2012. However, there are signs he might be willing to take a more active role in the confrontation with the ruling coalition.

For example, the head of state delivered a tough speech at the government’s swearing-in ceremony on January 4. On this occasion, he picked holes in the governing programme for not specifying how it will manage to keep the budgetary deficit under 3%, while making populist promises to increase salaries and pensions and cut down the VAT. He also hinted at the ministers’ inability to answer basic questions related to the governing programme during the parliamentary hearings, which were cut down to only 30 minutes for each minister.

Notable among the president’s latest actions were also his blasting comments on the Ombudsman’s decision to challenge the law banning convicted persons to join the government to the Constitutional Court. In fact, the Ombudsman’s action is generally seen as a blatant attempt to ease Liviu Dragnea’s future accession to the prime ministership. The president made similar harsh remarks several days later, when he warned the government against attempting to pass a law on amnesty and pardon of convicted or prosecuted politicians. He also pledged support to the DNA’s internationally recognised anti-corruption fight and vowed to use his veto powers against legislative and executive actions directed towards the weakening of anti-corruption legislation.

Whether such pledges can still pay off electorally – a view the latest polls did not seem to support – or have any political effects in the face of PSD’ solid parliamentary majority remains to be seen. For the time being, the PSD-ALDE majority has just engineered the government’s ability to govern through emergency ordinances that do not require the president’s approval while the parliament has convened for an extraordinary session.

Romania – Social Democrats’ landslide victory in parliamentary election brings about another spell of cohabitation

 

One year after country-wide anti-corruption protests forced Victor Ponta’s Social-Democratic government out of office, the PSD won a landslide victory in the general election held on December 11. The Social-Democrats have topped the polls in each general election held since 1990 and formed the government each time a centre-right coalition was too weak or too divided to coalesce around a common leader. This time, though, their historic 46% of the vote might bring along an outright parliamentary majority – a first in Romania’s post-communist electoral history – after the redistribution of unallocated mandates. However, despite the clear election results, a political crisis might still be looming on the horizon. During the electoral campaign, President Iohannis vowed not to nominate a convicted politician as prime minister, a situation which includes the PSD leader, Liviu Dragnea, who received a two-year probation sentence for electoral fraud earlier this year.

Election results

The Social-Democrats are followed by President Iohannis’ National Liberal Party (PNL) with a distant 20%. Since the local elections held in June, the party has lost about 10% of the voters’ preferences. The election outcome is all the more disappointing for the PNL, as one year ago the party could count on 35% of the public support according to opinion polls. However, instead of calling early election when the PSD government was ousted, President Iohannis chose to appoint a technocratic government led by former commissioner Dacian Cioloş. Some of the PNL’s eroding support was captured by the Save Romania Union (USR), a new anti-corruption party set up only six months ago, which won around 9% of the vote.

Apart from the Hungarian minority party (UDMR), two new parties also managed to cross the 5% national threshold: the Alliance of Liberals and Democrats for Europe (ALDE), which is the merger between a PNL faction and the Conservative Party (PC) led by former prime minister Călin Popescu Tăriceanu; and former President Băsescu’s Popular Movement Party (PMP), which broke away from the Liberal Democratic Party (PDL) in 2013 (the other PDL faction merged with PNL in 2014 and supported Klaus Iohannis as a common candidate in the 2014 presidential election).

None of the 44 independent candidates who stood for election across the country’s 42 constituencies managed to obtain an electoral mandate. A couple of newly-formed ethno-nationalist parties also run unsuccessfully, proving that xenophobia and far-right extremism have not found fertile ground in Romania. That said, the election winners were able to capitalise on growing anti-EU sentiments. Turnout to vote was just 39.5%, the lowest on record since 1990. The full allocation of seats in the two parliamentary chambers is yet to be determined.

Chamber of Deputies (330 seats)
Party % Vote share %Vote change
Social Democratic Party (PSD) 45.55 +9.14
National Liberal Party (PNL) 20.04 -4.23
Union Save Romania (USR) 8.83 New
Democratic Alliance of Hungarians in Romania (UDMR) 6.19 +1.82
Alliance of Liberals and Democrats (ALDE) 5.62 New
People’s Movement Party (PMP) 5.34 New
United Romania Party (PRU) 2.79 New
Greater Romania Party (PRM) 1.05 -0.2
Ecology Party 0.91 +0.12
Our Alliance Romania (ANR) 0.87 New
Senate (136 seats)
Party % Vote share % Vote change
Social Democratic Party (PSD) 45.71 +12.19
National Liberal Party (PNL) 20.42 -7.99
Union Save Romania (USR) 8.88 New
Democratic Alliance of Hungarians in Romania (UDMR) 6.25 +1.14
Alliance of Liberals and Democrats (ALDE) 6.0 New
People’s Movement Party (PMP) 5.64 New
United Romania Party (PRU) 2.95 New
Greater Romania Party (PRM) 1.18 -0.29
Ecology Party 1.1 +0.31
Our Alliance Romania (ANR) 0.95 New

The electoral campaign

Several factors contributed to the PSD’s stunning victory. The new electoral legislation, as well as the laws on political parties and campaign financing adopted by the parliament in 2015 played a significant role. A previous post discussed the change in electoral rules, from the mixed-member system used in the 2008 and 2012 elections to the closed-list proportional system with moderately low-magnitude districts, which was employed until 2004. The new law on party financing capped campaign budgets for individual candidates to 60 gross average salaries, severely restricted the range of electioneering activities – such as street advertising and the dissemination of electoral gifts – and increased the parties’ dependence on state budget for campaign spending. These regulations favoured the two big parties, the PSD and the PNL, and limited the ability of newer parties to make themselves known outside the big cities. Under these circumstances, door-to-door canvassing and online campaigning became an essential part of campaign strategies. These techniques were also skilfully used by USR, due to its strong ties with civil society and its popularity among educated voters who are more likely to use the internet for political information.

The depersonalisation of the electoral campaign was another factor that enhanced the Social-Democrats’ chances (or at least prevented them from haemorrhaging support as in 2014, when the centre-right electorate mobilised against Victor Ponta and handed over the presidency to Klaus Iohannis). The campaign lacked the usual debates between party leaders and PM candidates and the clash of political programmes and policy proposals. Learning the lesson of the 2014 presidential election, the PSD refrained from making any nominations for prime minister, although everything pointed to its current leader, Liviu Dragnea, as the party’s first choice for the PM post. As Dragnea received a two-year probation sentence for electoral fraud earlier this year, his endorsement for the prime ministership ahead of the election would have been an easy target for the centre-right parties, which campaigned on an anti-corruption platform.

On their side, PNL and USR chose to associate themselves with the record of the technocratic government, praising its efficiency in the reform of central and local public administration. Both parties tried to lure PM Cioloş into their ranks. When the premier turned down their offer, the two parties ended up endorsing his political platform and nominating him for a second term as head of government. The move backfired for two reasons. On the one hand, it showed that PNL is still in search of leaders for top national positions, a weakness that also cost the party the defeat in the race for the mayor of Bucharest in the June contest. In fact, PM Cioloş was reluctant to even take part actively in the campaign. On the other hand, it allowed the PSD to associate the centre-right parties with the mishaps of the Cioloş government and its refusal to consent to populist public spending measures passed by the PSD parliamentarians in the eve of the electoral campaign. Moreover, just a few days before the general election, PSD presented plans for next year’s budget, which included proposals for a national reindustrialisation programme and consistent wage increases for public sector employees. This generous stance on boosting social spending and tax cuts was contrasted with PM Cioloş’ firm position on containing the budget deficit, despite Romania’s GDP growth by 6% this year.

Although President Iohannis refrained from getting too involved in the campaign, he did make three notable interventions. First, he tried to force PM Cioloş into joining the PNL ranks by announcing that he would not appoint an independent prime minister after the December poll. Faced with the premier’s refusal to join a political party, the president backed down saying that Cioloş could in fact continue in office if political parties endorsed him for a second mandate. The second time President Iohannis showed off his constitutional role in PM appointment, he ruled out designating a criminally prosecuted or convicted politician, regardless of that person’s parliamentary support. Then, less than a fortnight before the election, he prohibited officials with a criminal record to take party in the formal celebrations organised for Romania’s National Day on December 1. As a result, several high-ranking PSD and ALDE politicians, including Liviu Dragnea and former PM Popescu-Tăriceanu, were denied access to high-visibility events organised by the Presidency. Arguably, these interventions anticipated the President’s intention to make active use of his formal powers in government formation and to prevent the PSD leader from taking over as prime minister.

Towards a new government and another period of cohabitation

Although the allocation of seats has not been officially announced yet, the Social-Democrats and their smaller ally ALDE are likely to reach a sizeable majority. Consequently, the PSD will be granted the first chance in nominating a new prime minister candidate. While so far no official proposals have been made, senior PSD figures have strongly endorsed their party leader for this role. However, not only has President Iohannis vowed to deny appointment to convicted politicians, but a 2001 law also forbids convicted persons to be appointed to government posts. Nevertheless, PSD insists that constitutional provisions, according to which the president must appoint a candidate for the PM post following consultations with the party holding the absolute majority in Parliament, should take precedence in this case. As Liviu Dragnea is unlikely to allow a political rival to capitalise on his electoral success, the conditions for a new constitutional crisis seem in place. Its resolution might once again depend on the decision of the Constitutional Court, or, as several PSD members suggested, could lead to another attempt to impeach the president.

Either way, Romania seems headed towards a new period of cohabitation. It will be interesting to see what role President Iohannis will choose to play in this situation. Will he attempt to become the leader of the opposition, like Traian Băsescu in 2007 and 2012? So far there have been few signs of the president’s willingness to take an active role in the confrontation with political parties. That said, the presidential elections scheduled for 2017 could provide a strong enough incentive to capitalise on the eventual eroding popularity of the centre-left government.

Romania – President Iohannis’ contested performance and a brief assessment of his exercise of constitutional powers

An article recently published in the German weekly Der Spiegel has called into question President Iohannis’ 15-month record as head of state. The verdict is unequivocal: when it comes to saying the right thing or taking the right action, Romania’s new president is a political “dilettante”. What about the use of constitutional powers? Is President Iohannis’ record lagging behind his predecessors’ when it comes to interfering in cabinet affairs, influencing legislative outcomes, and coordinating foreign policy? This post takes stock of the way in which President Iohannis has been using his constitutional powers since he was elected in November 2014.

President Iohannis was elected on an anti-corruption platform. He was widely expected to support the DNA anti-corruption agency after he put pressure on MPs to reject a bill on amnesty and pardons for prosecuted politicians. Nevertheless, his image as a supporter of the anti-corruption fight was dented at the end of 2015, when a final court ruling concluded that one of the several properties he owns in Sibiu was illegally acquired. The negative echoes of this affair continue in 2016, as the president has challenged the court ruling at the Supreme Court.

President Iohannis’ image as a committed supporter of anti-corruption policies suffered another blow in February 2016. This time around, the president criticized the approach taken by tax administration agency ANAF over the eviction of TV stations founded by Dan Voiculescu – a businessman and former leader of the Conservative Party who was sentenced to ten years in jail in August 2014 for fraudulent privatization and money laundering.

One of the president’s latest actions that caused uproar was to strip MEP Laszlo Tokes, the ethnic-Hungarian dissident priest who triggered the 1989 Revolution in Timişoara, of the “Star of Romania” order. In this case, though, the president’s discretion was minimal, as he was following a court ruling that validated the decision taken by the ‘Star of Romania’ National Order to withdraw the distinction granted to Tokes.

Given this wave of negative judgments stirred by President Iohannis’ alleged missteps and having in mind the two major electoral tests scheduled later this year, one might ask about the extent to which the head of state understands to take advantage of the constitutional powers that allow him to influence political outcomes.

Cabinet politics and inter-executive relations

President Iohannis’ first year in office was marked by the cohabitation with the centre-left coalition government led by PM Ponta of the Social Democratic Party (PSD). During most of 2015, the relationship between the president and the prime minister was as conflictual and counter-productive as it had been during President Băsescu’s last two years in office. President Iohannis questioned several key government policies and repeatedly called on the prime minister to resign after a criminal investigation was launched against him. In this context, it is worth remembering that the president can suspend cabinet members from office only when a criminal investigation is launched against them for acts committed in office (article 109). As the charges against PM Ponta dated back to past activities as a lawyer, his continuation in government office could only be decided by the parliamentary majority or his party.

President Iohannis stepped up to his role in government formation when PM Ponta resigned in November 2015 amid mass protests triggered by a tragic accident at a Bucharest nightclub that killed 64 people. The Constitution grants the head of state considerable discretion in identifying a prime minister candidate, who has to face a vote of investiture in parliament (article 85). President Iohannis’ influence was boosted by the delicate context and the fact that most political parties refrained from nominating their own candidates for the prime minister post. Under these circumstances, the president appointed a technocratic government led by former European Commissioner for Agriculture Dacian Cioloş. While a technocratic government was certainly the outcome of negotiations between the president and the main parliamentary parties, the fact remains that non-partisan cabinet ministers and technocratic governments are usually seen, for good or bad reasons, as strong indicators of influential presidents. [1]

Legislative powers

President Iohannis has not refrained from using his legislative veto powers. Between January 2015 and March 2016 he asked Parliament to re-examine 20 bills and forwarded several others to the Constitutional Court. Some of the re-examination requests sparked new conflicts with the government, such as the veto on the Forestry Code and the Fiscal Code. Legislators were also constrained to amend a controversial bill on special pensions for MPs. However, the president was criticised for missing the opportunity to challenge the constitutionality of the amended bill, especially after the Constitutional Court ruled that a similar law on special pensions for local elected officials was unconstitutional.

The institutional dialogue between the presidency and the parliament seems on the rise as well. Since December 2014, President Iohannis has already addressed MPs six times. A marked increase compared with his predecessors – President Constantinescu (1996-2000) addressed MPs only one time, President Iliescu (2000-2004) 5 times, and President Băsescu (2004-2011) 17 times. [2] Certainly, the mere number of presidential speeches in parliament does not say much about their substance and impact. At least occasionally, though, the president has raised important policy issues. For example, as early as February 2015, he asked legislators to consider changing the local elections bill to bring back the two-round voting system for mayors – almost a year before the Liberal Party declared it matter of outmost urgency ahead of the local election scheduled for June 2016.

Foreign policy

One particular area in which President Iohannis seems to have taken a step back is that of foreign affairs. Other commentators have noted the president’s apparent lack of visions and strategies for foreign affairs, which is surprising given the extensive agenda-setting powers that the Romanian constitution grants the head of state in this domain. Other signs point in this direction too. For example, during President Băsescu’s time in office, there were huge disputes between the president and the PM as to who should represent Romania at EU summits. While President Iohannis continued to deny PM Ponta the right to attend EU meetings, he delegated PM Cioloș, a former EU Commissioner, to attend the European Council meeting in Brussels in December 2015. PM Cioloş also attended the EU-Turkey summit and the informal meeting of the European Council members on 7 March, as President Iohannis paid an official visit to Israel and Palestine.

This aerial view on President Iohannis’ record so far suggests that the head of state does not shy away from using his formal powers. Held against the standard of his predecessor, however, he certainly looks less assertive, slow to act, lacking communication skills and willingness to take the extra mile and overall unconvincing of having a long-term political project and leadership strategy. In other words, a dilettante. Here lies a paradox, though, as other commentators have noted – Iohannis is criticised for not talking and acting as his predecessor, President Băsescu, who attracted huge criticism for his personal and political behaviour.

Ultimately, it must be remembered that, as in most other parliamentary and semi-presidential European democracies, the Romanian president’s powers in policy-making are limited. Moreover, the presidential sphere of action shrinks even further in the absence of a supporting majority in parliament – which has not happened in Romania since the onset of cohabitation in 2012. Under these circumstances, it is highly unlikely that the head of state succeeds in overhauling the political system through democratic means. The president and the entire political class are nevertheless bound to face two important tests in 2016, with local and general elections scheduled in June and November respectively.

[1] See Octavio Amorim Neto and Kaare Strøm. 2006. Breaking the Parliamentary Chain of Delegation: Presidents and Non-partisan Cabinet Members in European Democracies. British Journal of Political Science, 36:4, 619–43.

[2] See Mihaela Codrina Levai and Camelia Tomescu. 2012. Atribuţiile Preşedintelui Romȃniei în raport cu Parlamentul – aspecte teoretice şi practice. Revista Transilvană de Ştiinţe Administrative, 30:1, 84–105.