Tag Archives: constitutional amendment

Constitutional Reforms in East Asia, Part I: Progress and Possibility in the Philippines

Talks of constitutional reforms appear to be sweeping across the presidential and semi-presidential systems in East Asia: the Philippines, South Korea, and Taiwan. Constitutions capture the principles – some say, the most sacred principles – around which institutions, legislation, rules, and processes of a country are built.[1] Constitutional reforms, then, are generally significant and painstaking undertakings, often requiring supermajorities in the legislature or the electorate or both to ratify. And, this may be rightfully so: if they are to amend or revise principles that underpin the political, economic, and social structures of a country, the process should not be based on changeable and changing attitudes. Given the significance, the concomitant grip of constitutional reforms across several of the East Asian with a president as head or co-head of government is interesting, if not curious. What level of public support is there for these reforms? And, how likely are these reforms to pass?

President Duterte entered office in the Philippines with a pledge to adopt constitutional reforms to change the country’s unitary system into a federalism, with some powers devolved to the local governments for a more responsive government. Constitutional revisions have been proposed under previous governments: for instance, under President Benigno “Noynoy” Aquino III, talks of constitutional revisions to repeal the term-limited, single, six-year non-re-electable presidential term-of-office surfaced towards the end of the popular executive, while former President Arroyo pushed hard for a change to a unicameral parliamentary system following an impeachment effort against the President for possible electoral irregularities in the 2004 presidential elections.[2] A marked difference between this constitutional reform effort and its predecessors is: President Duterte is hugely popular; as a contrast, President Arroyo was pre-empting protests and demonstrations as she pushed for her reforms.

Does this mean that there is wide public support for the federalist revision? That is less clear: on the one hand, the President was elected into office with federalism as one of his platform promises; on the other hand, Duterte was elected into office with a plurality of 36.7 percent of the total votes cast.[3] Polls report economic progress remains a key concern among survey respondents, so that a key consideration for public support is likely whether federalism will address economic development as promised.

How likely is the constitutional reform to pass? The Constitution provides for revisions in one of three ways: through a vote of three-fourths of the members of Congress; a constitutional convention; or direct petition by the people of at least 12 percent of the total registered voters, and of which every legislative district has three percent signatories. All revisions must then be ratified by a majority of the votes cast between 60 and 90 days of the approval of the amendment. In these processes, President Duterte seems largely unfettered: in particular, he enjoys the support of a super-majority in the legislature, and has high trust ratings that have only recently fallen. Even the Supreme Court has refused to limit the President’s martial law powers in Mindanao. Indeed, President Duterte has already moved to a constitutional assembly so that lawmakers will draft and approve the changes, rather than use a constitutional convention. The constitutional assembly is expected to convene after the national budget for 2017 is passed; the Speaker of the House anticipates that the amendments may be finalized by the end of 2017. If the amendments remain limited to the federalist structure, this is one constitutional revision effort that may fly.

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[1] Strauss, David. 2010. The Living Constitution. New York: Oxford University Press

[2] Hedman, Eva-Lotta. 2006. “The Philippines in 2005: Old Dynamics, New Conjuncture.” Asian Survey vol 46 no 1: 187-193

[3] Election Guide, International Foundation for Electoral Systems. Washington, D.C.

Georgia – Constitutional reform: From semi-presidentialism to parliamentarism

More than 20 years since the adoption of the constitution of Georgia, governments are still thinking about constitutional reform. Typically, authorities have done so as a way of strengthening their powers.

Thorough constitutional reform has already been carried out twice. First, fundamental changes were adopted in 2004 after the Rose Revolution. A semi-presidential model was introduced, but in fact, it was a super-presidential system where the president’s powers were further strengthened by the presidential majority in parliament. Second, in 2010 the direct election of the president was maintained, but the powers of the president were significantly weakened, bringing Georgia closer to the parliamentary model. President Saakashvili, who was term-limited, wanted to remain in the power as prime minister, and this constitutional amendment was designed to serve this purpose. However, Saakashvili’s party lost the 2012 parliamentary elections and an electoral coalition of six parties led by Georgian billionaire Bidzina Ivanishvili came to power. After a year of tense cohabitation, power was fully transferred to the Georgian Dream coalition after the 2013 presidential election.

Today, Georgia faces a third major constitutional revision. Prior to the 2012 election, the Georgian Dream coalition promised to amend the constitution and move to a parliamentary system. Not all parties in the coalition shared this opinion at the time, but in 2016 the coalition was dissolved in the run up to the parliamentary elections. At the 2016 election, Georgian Dream participated independently, winning 48.67% of the proportional vote and 44 seats in the legislature, and 70 of the 73 seats in the majoritarian constituencies. So, with less than 50% of the vote, the party won a super majority in the parliament. To change the constitution, a party currently needs more than 115 of the 150 seats in the legislature.

On December 15, 2016, parliament created the State Constitutional Commission to revise the constitution[1]. The main goal of the Commission was to draw up the draft law on the revision of the Constitution of Georgia[2]. On April 22, 2017, the State Constitutional Commission adopted the Draft of Revision of the Constitution.[3]

The State Constitutional Commission comprised 72 members, including representatives of both the parliamentary majority and the minority, constitutional bodies, experts, NGOs, and representatives of political parties who received at least 3% of the vote in the last parliamentary elections. The ruling party held a majority on the commission. The presidential administration refused to work with the Commission, because in the president’s opinion, the procedure for setting up the Commission lacked political legitimacy and was not based on a wide consensus.[4]

Two days before the vote on the constitutional draft, the opposition parties left the Commission. Fifteen opposition parties announced that the ruling majority had not considered any of their proposals and accsued the ruling party of amending the constitution to suit themselves. The Commission’s work was criticized and was not supported by the Public Defender’s Office and representatives of leading NGOs. The ruling party commented that the Commission’s legitimacy was not endangered by the boycott of the opposition, as the people would legitimize the draft constitution during public hearings. Although the constitution of Georgia does not require the adoption of the constitution by a referendum, public discussions are important, but previous practice shows that such discussions are not very effective.

As to the transparency of the Commission, it should be noted that no social networks were used in the process. In terms of inclusiveness, it was almost the same process as when the United National Movement had previously used its constitutional majority to adopt constitutional amendments without considering the opposition’s opinions. It should also be noted that these fundamental constitutional amendments were prepared within a period of only 3 months. No international experts were invited to be part of the process of preparing the amendments. The president of the Venice Commission, Gianni Buquicchio, said during his visit to Georgia in 2013 that a good Constitution should be based on the widest consensus possible between all the political parties and society.[5]

On May 8, 2017, the draft of the constitutional amendments was submitted to the Venice Commission. Georgian Dream expected to receive a positive report. The government announced that it would not accept any constitutional amendments which were negatively evaluated by the Venice Commission and would unconditionally share all the legal recommendations expressed by the Commission. In fact, the ruling party did accept some of the Venice Commission’s recommendations, but the issue of introducing a fully proportional electoral system for the 2020 parliamentary election was not accepted.

As noted above, the main goal of the reform is to introduce a parliamentary republic. The commonly heard argument of those behind the reform is that parliamentarism is more democratic, that it better represents the interests of the people, and that it is present in a majority of European countries. However, there are no clear reasons to suggest either that presidential or semi-presidential systems are less democratic or that they do not fit the situation in Georgia. The main issue for both the Commission and the ruling party is the ending of direct presidential elections.

According to the draft, the president of Georgia will be elected by an electoral college without a debate for a 5-year term. The Electoral College will comprise 300 members, including all Members of Parliament and all members of Supreme Councils of the Autonomous Republics of Abkhazia and Adjara. The other members will be named by political parties from representatives of local councils. It must be noted that the ruling party has a majority In the Supreme Council of the Autonomous Republic of Adjara and in local government. These governments do not have independent financial and economic means and are completely depended on government support. Georgia does not have a decentralised territorial state structure and the country still operates like the Soviet system. Governors (representatives of executive) in the regions are appointed by the executive[6]. They are loyal to the parliamentary majority.

The majority of citizens and political parties do not favour the cancellation of direct presidential elections. Significant parts of society consider the direct election of the president as a way of exercising their voice and as the only mechanism for balancing the executive[7].

According to the draft constitution, the president’s powers will also be restricted. The president will carry out a number of powers in agreement with the government or at the government’s proposal. The ruling party thinks that the president should not be an active, charismatic leader and should be more of an experienced academic person. The President cannot be a member of a party and the age of candidates will be increased from 35 to 40. The National Security Council will be abolished and a Council of Defense will be created, which will operate only during martial law. The National Security Council was the subject of controversy between the presidency and the government after the 2012 parliamentary elections. The Prime Minister did not attend Security Council meetings convened by the President. Later, Parliament adopted a special law on the State Security and Crisis Management Council and created such a council in the executive. According to the draft constitution, the President of Georgia will remain the Commander-in-Chief of the Armed Forces, but he will appoint and dismiss the Head of the Military Forces on the recommendation of the Government.

One of the significant issues of this constitutional reform is an electoral system which has become a source of disagreement between the ruling party, the opposition and the President of Georgia. The opposition demanded a fully proportional parliamentary election during last elections. At the start of the work of Constitutional Commission, the ruling party suported this proposal, but then proposed a 5 percent threshold with undistributed votes below the threshold being allocated to the winning party. At the same time, the draft banned electoral blocs. With weak party structures and financial resources, the opposition fear that the election process will not be equal, given they will have to compete against the Georgian Dream, which is backed by billionaire Bidzina Ivanishvili. The percentage of undistributed votes could range from 20% to 60%, meaning that the first-place party is likely to receive a bonus of 30 or more seats in parliament. It seems that after abolition of the majoritarian system, the ruling party still hopes to create a majority in the parliament using these amendments. This is indisputably an unfair electoral system and will most likely create a strong one-party majority in the future.

The amendments relating to the electoral system were strongly criticized by international organizations, Georgian NGOs and the Venice Commission. The Venice Commission noted that “The replacement of the current proportional/majoritarian election system by a proportional election system is, without doubt, a positive step forward aiming at increasing pluralism in Parliament. However, this positive step forward is limited by three mechanisms: the 5% threshold rule in legislative elections is maintained; the undistributed votes below the 5% threshold are allocated to the winning party and, electoral coalitions (party blocks) are abolished. While the 5% threshold is perfectly in line with European standards and does not as such expose itself to criticism, taken together, these three mechanisms limit the effects of the proportional system to the detriment of smaller parties and pluralism and deviate from the principles of fair representation and electoral equality to a larger extent than seems justified by the need to ensure stability”.[8]

Parliament adopted the constitutional amendments at its second reading in an extraordinary session on June 23. Only the Georgian Dream supported them. The President, the opposition and the NGO sector called on the ruling party to resume the dialogue on constitutional change, sending their remarks to the Venice Commission. On September 26, 2017, Parliament approved the amendments to the Constitution at the third reading supported by 117 votes, while 2 MPs voted against.

The amendments will come into force after the 2018 presidential election. In 2018 the president will be directly elected for a six-year term. The proportional electoral system will begin in 2024, while the 2020 elections will still be held under the existing mixed electoral system and with a one-time 3% election barrier. Thus, the reform process ended with the rejection of a fully proportional electoral system for 2020 parliamentary election, which was the main demand of the opposition political parties.

On the second day after the final adoption of the constitutional amendments in parliament, the speaker of the parliament suggested that the president use his veto power in relation to the bonus system and the abolition of electoral blocs. This is the first that the parliamentary majority has asked to the president to veto constitutional amendments. It must be noted that parliamentary majority did not consider these changes during earlier stages of the parliamentary process, despite strong criticism from all political groups, president and international organizations.

The amendment of the electoral system is the cornerstone of this constitutional refom. The Georgian experience shows that a mixed electoral system has returned a strong single party majority in parliament since the adoption of constitution in 1995. Keeping the mixed system for the 2020 parliamentary election could be considered a strategic goal of the ruling party in its attempt to maintain power. Allowing party blocks and reducing the election threshold to 3% was a last-minute change in the face of strong criticism from the international and domestic community. Nonetheless, the Venice commission noted that the postponement of the adoption of a proportional election system to October 2024 is both highly regrettable and a major obstacle to reaching consensus.[9] The ruling party announced that they could not make any fundamental changes to the constitution during its third hearing and that a new draft of the constitutional amendment will be initiated during next parliamentary session. The Venice Commission noted that they expect this step not only to be considered, but immediately adopted.[10]

The draft also changed the constitutional amendment rules. The amendments will be adopted by a two-thirds rather than a three-quarters majority in Parliament. Although amendments will be submitted to the President after their adoption by Parliament, if they are supported by three-quarters of the total number of MPs the president will not have the right to veto them. According the Georgian constitution and legislation, the constitutional court of Georgia is not entitled to consider the constitutionality of constitutional amendments.

In conclusion, it should be noted that there are some positive aspects to the draft constitution. These relate to government formation and accountability, human rights and freedoms, and other technical changes, but the most important aspects are the mechanisms for the democratic functioning of power. Without a democratic political system, any improvements will be a fiction. The constitutional reform confirmed the perils of a single party holding supermajority powers. The unilateral adoption of such important amendments is a threat to the long-term democratic development of the country. No matter how good some of them may be, an acknowledgement of the Georgian context is very important. The draft will most likely establish a one-party majority without the necessary checks and balances.

Notes

[1]  The Resolution of the Parliament of Georgia on Creation of the State Constitutional Commission and Approval of the Charter of the State Constitutional Commission http://constitution.parliament.ge/en-54

[2] The Charter of the State Constitutional Commission, http://constitution.parliament.ge/en-52

[3] The State Constitutional Commission supported the Draft of Revision of the Constitution, http://constitution.parliament.ge/en-88

[4] President’s Administration Boycotts Planned Constitutional Reform Commission, Civil Georgia, Tbilisi / 12 Dec.’16 http://civil.ge/eng/article.php?id=29687

[5] Gianni Buquicchio – Constitution Should not be the Result of Consensus between the Party or Current Majority, http://www.interpressnews.ge/en/politicss/44180-gianni-buquicchio–constitution-should-not-be-the-result-of-consensus-between-the-party-or-current-majority.html?ar=A

[6] Constitution of Georgia, 24 August 1995 https://matsne.gov.ge/en/document/view/30346

[7] Political Ratings and Public Attitudes in IRI-commissioned Poll, Civil Georgia, Tbilisi / 5 Apr.’17, http://www.civil.ge/eng/article.php?id=29995

[8] CDL-AD(2017)013-e Georgia – Opinion on the draft revised Constitution, http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2017)013-e

[9] Draft opinion on the draft Constitution of Georgia as adopted in the second reading in June 2017, Strasbourg, 22 September 2017, Opinion 876 / 2017, CDL-PI(2017)006, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2017)006-e

[10] Draft opinion on the draft Constitution of Georgia as adopted in the second reading in June 2017, Strasbourg, 22 September 2017, Opinion 876 / 2017, CDL-PI(2017)006, http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-PI(2017)006-e

Uganda – Tension rising over push to scrap presidential age limits

NRM MPs last week unveiled a private member’s bill aimed at removing presidential age limits from the Constitution.

Already in power for over 30 years, President Museveni will be 77 by the 2021 elections, making him too old to run for re-election, the constitutional limit being 75.

The age limit question has dominated political debate in Uganda sine the 2016 elections, with NRM leaders considering various options for how and when (not whether) to amend the constitution.

With the private member’s bill now due to be tabled in Parliament, the battle lines have finally been drawn. MPs—and the security forces—are now moving into position.

What is in the bill

Article 102(b) of the 1995 Constitution currently states that a presidential candidate must be between the ages of 35 and 75 to contest.

The private member’s bill proposes to replace this with the simple provision that any registered voter can run for the presidency.

Some proponents of the bill have argued that scrapping the lower as well as upper age limit is a progressive move, creating room for Uganda’s youth to aspire to the presidency as well. On those grounds, various youth groups, such as Kick Age Limits out of the Constitution, are being mobilised to help popularise the amendment.

The bill also proposes several additional amendments, including one to increase the amount of time permitted when filing presidential election petitions and extending the deadline by which the Supreme Court must reach a decision.

Supporters of the bill point to these proposed changes as evidence that they are not only concerned with the age limit, and Museveni’s so-called “life presidency”. Rather, they claim to be responding in good faith to Supreme Court’s recommendations following Mbabazi’s petition of the 2016 presidential results.

Mixing regressive amendments with seemingly more forward-looking ones is a long-standing NRM strategy, as in 2005, the decision to scrap presidential term limits was softened by the move to reintroduce multiparty politics.

Overwhelming support

The Bill, prepared in secret, was revealed at an informal gathering of NRM MPs, at least one of whom rose in protest after learning what the meeting was about.

The group backing the Constitutional (Amendment) Bill included both backbench MPs and several Cabinet ministers.

A small number of NRM MPs have since denounced the legislation and proposed an alternative private motion urging government to constitute a Constitutional Review Commission.

The Cabinet, however, went ahead and endorsed the original private member’s bill. An overwhelming 287 NRM MPs then voted to support the legislation at a formal party caucus meeting. Only six MPs dissented

In total, the Constitutional (Amendment) Bill is estimated to command the support of over 300 MPs in Parliament, which to pass needs the backing of two-thirds of the House or 298 MPs.

Why a private member’s bill

The Ugandan Parliament has a long history of passing controversial and highly significant private member’s bills.

The current move is nevertheless noteworthy.

Previous legislation, such as the Administration of Parliament Bill (1997) and Budget Bill (2000), both of which aimed to strengthen the legislature, met with strong opposition from Government.

Not all past private member’s bills had “progressive” aims. But until the age limit issue came up, they were not generally used as a tool by the executive to push its agenda.

The decision of NRM leaders to opt now for a private member’s bill is indicative of two related trends.

First, the constitutional review process has become increasingly piecemeal and informal.

The 1995 Constitution was adopted following several years of nation-wide consultations, a careful drafting process by a constitutional commission, and 18 months of debate by the elected Constituent Assembly. The new Constitution was then held up as evidence that Uganda had turned a page in its troubled history, that it was moving towards a consolidated democracy.

Since then, the Constitution has been gradually weakened, most notably with the 2005 scrapping of presidential term limits. All constitutional amendments up to now nevertheless came from Government and followed some pretence of a constitutional review process.

This time, though, Ministers were frank in stating that their chief concern was to push through the changes as quickly as possible. “If you don’t bring this amendment early enough to allow damage control and explanations, it will be difficult”, advised the NRM Chief Whip at a parliamentary caucus meeting on Wednesday.

Discussing what it meant to amend the supreme law of the land, another Minister declared that Article 102(b) on age limits was “disorganized” and that the aim was to “organize” it.

Under the circumstances, it is not surprising that critical MPs have suggested people start referring to the Constitution of Uganda as “the Constitution of NRM and Museveni”.

The informal approach to constitutional amendments aside, the second reason for the use of a private member’s bill relates to Museveni’s dependence on the NRM parliamentary caucus as a support base.

It was an MP who, at a parliamentary caucus retreat in 2014, got down on her knees to move a motion endorsing Museveni as the sole presidential candidate for the 2016 polls. This came amidst rumours that then Prime Minister Mbabazi was planning to run against him. NRM MPs were later sent to mobilise in support of the sole candidacy motion, each receiving Shs300,000 per constituency meeting.

NRM legislators do resist the President at times, a recent example being their rejection (at least for now) of a proposed constitutional amendment on land. But when it comes to defending Museveni’s presidency, they fall into line. A mix of ambition and patronage can also turn what were independent MPs into loyal cadres.

The MP tasked with tabling the age limit bill in Parliament, one Raphael Magyezi, is a case in point. After first being elected to Parliament in 2011, Magyezi was identified with a small group of “rebel” NRM MPs who, among other things, denounced Museveni’s long stay in power. He later turned, though, and lost his independent reputation.

The choice of Magyezi to table the age limit bill is also interesting in that it may help sway the one person who could pose an obstacle, the sometimes-independent Speaker Rebecca Kadaga. Magyezi was the chairman of the special taskforce that Kadaga assembled to spearhead her hard-fought campaign for re-election as Speaker.

While it is unlikely that Kadaga would interfere with the age limit amendment, having a strong supporter as the face of the bill certainly can’t hurt as a precautionary measure.

Where to from here

The plan was to table the bill in Parliament yesterday.

This coincided with a security crackdown in Kampala and in some regional towns. Police raided NGO offices, the Kampala Mayor was arrested along with journalists, the headquarters of two opposition parties were sealed off, groups of protesters across the capital city were shot at with rubber bullets and teargas, their leaders were arrested, a police helicopter circled the city centre, Parliament was surrounded by police and soldiers, and some oppositional MPs were reportedly blocked by police from entering the building.

The US Embassy in Kampala issued a statement expressing concern “that recent arrests and raids stifle the Ugandan people’s right to free expression.” Government spokesperson Ofwondo Opondo later responded that government “wont’ take unqualified lectures from foreign agents.”

The tension in the streets did not stop MPs from attending Parliament. They packed the Chamber, an unusual event given that House debates often go ahead without quorum. One anti-age limit MP showed up in a yellow VW Bug and dressed from leather shoes to baseball cap in the same official NRM colour. An opposition MP, meanwhile, came in a red track suit, declaring that if the constitution could be changed, she could change her dress code.

The debate was a non-starter, though, after Deputy Speaker Oulanyah failed to secure order in the House amidst loud whistling and singing of the national anthem by opposition MPs. He eventually adjourned Parliament till next week, giving him time to consult with Speaker Kadaga on the way forward.

While it is unclear exactly how events will unfold, Parliament will likely soon enact the age limit bill. The real question is what happens after that.

Many Ugandans on social media yesterday likened the general drift of President Museveni’s regime with the administration of former President Milton Obote in the 1960s. One MP recalled the “constitutional trickery” that took place in 1966 and culminated with the adoption of the “pigeon-hole” constitution, so called because MPs found it ready-drafted in their mail while the parliamentary building was surrounded by armed soldiers.

Certainly, Museveni’s own one-time assertion that he would break with the past, letting “people of presidential calibre and capacity” take over, has not aged well. Some of his most ardent supporters have also abandoned all pretences, warning, “They should know that we are the party in power, we have the support of the maggye [army], you cannot tell us Togikwatako [don’t touch it, article 102(b)].”

There is clearly cause for concern not only about next week’s parliamentary session but, more fundamentally, about what a post-Museveni Uganda might look like. The pre-Museveni period does not offer much positive inspiration, but with no clear succession plan and a strong—but factionally divided—security force, it is understandable that people are looking to Uganda’s history to make sense of its current path.

Turkey – Erdoğan is closer than ever to his dream of a hyper-presidential system

On January 21 the Turkish parliament passed a constitutional reform package introducing a presidential system. the reform was passed with 339 votes in favour, slightly more than the minimum threshold of 330 votes. The ruling AKP party had the support of Devlet Bahçeli, the leader of the pro- nationalist MHP (Nationalist Movement Party) and some of his party’s MPs, despite the fact that considerable number of the MPs and party supporters opposed the proposal. Now the reform bill is going to be sent to the President Erdoğan’s Beştepe Palace  for promulgation. He has two choices, either send it back to the Grand National Assembly for reconsideration, or refer it to a referendum. It is expected that he will refer it to a referendum, which will take place in April.

The reform package has no provisions enhancing basic rights or correcting the defective Turkish democracy. The constitutional amendment has two important and interconnected intentions; one is to change the current semi-presidential system into a hyper-presidential system and the other is to reform the judiciary so that the president can have a major role in the formation of judicial supervisory body, the Council of Judges and Public Prosecutors.

The reform package abolishes the dual executive and replaces it with a president who is the sole executive authority. He appoints all ministers, undersecretaries, and bureaucrats without the approval of the assembly. He has the power of legislative decree. He may regulate any issues that are not enacted by the assembly in detail, except individual and political rights, and he may do so without an enabling law or any prior conditions, such as necessity or urgency. When it comes to issues enacted by the assembly, the president may claim that the parliamentary act is not detailed enough or that his decree is covering another aspect of the issue. There is no retrospective examination of decrees by the assembly either. This type of regulation is always likely to create legal chaos. The constitutional court has the power of judicial review over presidential decrees. However, the president’s power to appoint 12 of the 15 court members for a 1- year term creates certain doubts that the court may not be independent enough to actually challenge the presidential will.

Furthermore, the president may create or abolish any public legal entity, regulate the duties, powers and the structure of ministerial bodies from top to bottom, and change the whole administrative structure by decrees without needing a parliamentary act. This means that he may reorder the main principles of administrative law without a parliamentary act. This is a big change in Turkish administrative law, since one of its main principles is that administrative law has to be enacted by parliament (the legality principle). If the reform is accepted in the referendum, the person who makes the rule will be the same person who implements that rule. There will be no external oversight of the administration, making administrative courts meaningless.

In addition to above-mentioned powers, the president will also have the power to declare a state of emergency and issue emergency decrees which may infringe or suspend all constitutional rights without any judicial review. Such a powerful legislative decree authority is hard to find in any Latin American Constitutions, even though almost all the current Latin American constitutions give presidents the power of legislative decree. In this region, they either require prior enabling laws (Chilean Constitution art. 32/3), or they can only be issued if the usual law-making procedures in parliament are not working properly and when there is an urgent need for such decrees (Argentinian Constitution art.99/3, Brazilian Constitution art.62). Such power also comes with retrospective control exercised by the assemblies, which is not the case for ordinary decrees (only for emergency decrees) in the current Turkish constitutional reform proposals.

The president is also responsible for determining and implementing national security policies as well as having the power to decide to use the army. Under the current constitution, this type of decision making traditionally involved chiefs of staff, the council of ministers, and the parliamentary assembly.

In addition, the president also has the power of parliamentary dissolution, again without any prior conditions or time limits attached. The parliament would mean that an early presidential election is held as well, since the two elections have to be held concurrently to help guarantee that the party led by the president can also win a majority of parliamentary seats. The parliament may also decide to call an early election, but this would require a three-fifths majority of the whole members (360 of 600). Clearly, a single person is more likely to make such a decision than an extraordinary majority. The president may dissolve the legislature if there is a conflict with the majority, or when he is about to be impeached and right before the decision to send the case before the constitutional court, or simply at a convenient time. Dissolution power is quite rare in presidential systems. However, it is often seen in competitive or electoral authoritarian presidential systems such as Pinochet Chile before 1989, Venezuela, Syria, Guinea.

This amendment also alters one of the main principles regarding presidents, namely that they cannot lead a political party. Instead, they need to be impartial towards all political parties. With this change, presidents are no longer required to be neutral. They can be the chairman of a political party and lead this party’s parliamentary majority. Traditionally, Turkish parties are leader-oriented, and internal democracy is quite weak. The party leader decides who gets to be nominated.

As for the structure of the Council of Judges and Public Prosecutors, which is responsible for overseeing the appointment, promotion, discipline, and dismissal of judges and public prosecutors, six of the thirteen members of the Council will be appointed by the president; the rest will be selected by the parliamentary majority. Since the president will be the head of a political party, he may lead the parliamentary majority. In the light of the current conditions in Turkish politics, the president is highly likely to control the parliamentary majority, which would make him indirectly involved in the selection process of the other members of the Council of Judges and Public Prosecutors.

The council selects the members of the High Court of Appeal (yargıtay) and three-quarters of the Council of State (the rest are appointed by the president). Their term of office is four years and they can be re-elected. The head of the council is the minister of Justice and his undersecretary is a permanent member. As pointed out above, the president also appoints a majority of the members of the Constitutional Court. In short, the President may shape all the high courts and the Council which control all the courts. This would potentially affect the independence of the courts from executive authority. Article 6 of the ECHR and Art. 38 of the current constitution state that there is the right to a fair trial, which includes being tried by an independent and impartial tribunal. Independence requires being free from the executive’s influence. The European Court of Human Rights uses four criteria to define independence; “the manner of appointment, term of office, existence of guarantees against outside pressures, and appearance of independence”. Under this amendment, none of these criteria are fulfilled. Without independent judiciary there is no fair trial for anyone and no rule of law. Furthermore, the manner in which the constitutional court judges are appointed by the president breaches a universal principle in law, whereby “no one can choose her judge” as the court is responsible for impeachment trials as well as examining decrees the president issues.

Overall, the reform package creates a very strong presidency without any checks and balances. It also supports the fact that in competitive authoritarian regimes presidents opt for new constitutions that consolidate their power, such as Venezuela (1999), Bolivia (2009), and Ecuador (2008). Currently, Turkey shows the signs of being a competitive authoritarian system. There is no free and fair competition among parties. It is a clientelistic and patronal system, which punishes the opposition (tax law, criminal law, etc) and rewards political loyalty by using state wealth and facilities. Selahattin Demirtaş and Figen Yüksekdağ, the co-leaders of HDP, the third largest party as well as many MPs of the same party are currently in jail; the main opposition, CHP, works under constant treats and some of its members are in jail too. Under the state of emergency the opposition faces especially tough constraints. Organising demonstrations and rallies are severely restricted.

Despite these facts, the AKP leaders still needs the support of MHP voter in the upcoming referendum according to the latest polls. If the right is unified, possibly with the help of a highly populist discourse, the reform package is likely to be accepted by the popular vote. However, “the no front” is getting ready for a tough struggle. It is going to be very tense three months in Turkish politics.

Ignacio Arana – Does it matter who the president is?

This is a guest post from Ignacio Arana of the Pontificia Universidad Católica de Chile.

No other human beings in any Western democracy attract more attention than the country’s presidents. Presidents are the most powerful politicians in presidential systems and their decisions have relevant political, social, economic and symbolic consequences. Given the vast amounts of scholarly literature dedicated to understand presidential behavior and performance, one would expect that many relevant questions have been responded. However, despite the rivers of ink that have run on the study of presidents and presidencies, we still cannot answer confidently two fundamental questions: does it matter who the president is? If so, how does it matter?

These are the main questions I address in my research. I explore how individual differences among presidents have an impact on governance. Research on differential psychology refers to individual differences as how people differ from each other in how they feel, act, think and behave. Most quantitative research in political science that analyzes the presidency treats the unique characteristics of leaders as “residual variance.” My research challenges this approach, building on the literature on differential psychology that has proved that many individual differences are stable and explain a significant part of human behavior. I argue that presidents’ individual differences help explain highly relevant political phenomena, including institutional change and policy outcomes.

My research in this topic is mainly channeled through my current book project, The Quest for Uncontested Power: How Presidents’ Personality Traits Leads to Constitutional Change in the Western Hemisphere. In this project I argue that the individual differences of presidents explain which leaders attempt to change the constitution to increase their powers or extend their terms. Thirty eight presidents of the Americas made such attempts forty eight times between 1945 and 2012. Among the presidents who have tried to consolidate their power via a constitutional change are the most prominent leaders that have emerged in Latin America. Leaders such as Fidel Castro, Augusto Pinochet, Juan Domingo Perón, Hugo Chávez, Getúlio Vargas, José María Velasco Ibarra and Joaquín Balaguer dramatically changed the political paths of Cuba, Chile, Argentina, Venezuela, Brazil, Ecuador and the Dominican Republic, respectively.

To understand why some presidents try to change the constitution to consolidate their power and others do not I conducted semi-structured interviews with 21 former Latin American presidents from eight countries between June 2011 and May 2012. Presidents discussed three types of questions. First, they were asked about their individual differences and whether their personal attributes can be related to their performance in office. Second, they discussed the political context in which they governed. Finally, the leaders were asked about their relation with the constitution, and the reasons they might have had to attempt to change it to consolidate their power.

These interviews served to develop two hypotheses that propose which kind of presidents are more likely to attempt a constitutional change to consolidate their power. First, I claim that the presidents’ individual propensity to take risks influence their decision to attempt to change the country’s legal charter. Risk taking entails the willingness to lose something of value weighted against the potential to gain something of value. Undoubtedly, presidents have much to gain by increasing their powers or extending their term. On the other side, the attempts to change the charter can fail and even mark the end of a government. For instance, Guatemalan President Jorge Serrano was ousted in 1993 due to his attempt to consolidate his power via a self-coup that indefinitely suspended the constitution. Different levels of individual risk taking should explain why some leaders have attempted constitutional changes in risky circumstances, while others have not tried to do so even in promising circumstances. Second, I propose that more assertive presidents are more likely to change the constitution to consolidate their power. Psychologists have proposed different definitions of assertiveness. I follow the operational definition used in the International Personality Item Pool (IPIP; Goldberg 1999; Goldberg et al. 2006). Through eleven statements, the scale captures the characteristics of individuals who are highly motivated to succeed, know how to convince and lead others, feel comfortable taking control of things and do it promptly. This scale fits the profile of leaders who try to change the constitution to consolidate their power. Since a constitutional reform entails a large bargaining process in which presidents need to make a big effort to succeed, the leaders should be strongly oriented toward success. Moreover, presidents need the ability to persuade other political actors that their project to reform the charter is something that they should support. Additionally, presidents who want to increase their powers or extend their terms should feel more comfortable enjoying more responsibilities.

To test the theory I created the Presidential Database of the Americas, a novel dataset of the 315 presidents who governed 19 Latin American countries and the United States between 1945 and 2012. This database integrates information from three sources. Data about presidents’ personality traits comes from an online survey distributed to 911 experts from 26 nationalities. The experts answered standardized psychometric questionnaires and items designed to measure the most important unique characteristics of leaders. Second, researcher assistants coded 13 individual characteristics of presidents taken from biographical data. Finally, the study was enriched with the semi-structured interviews conducted with former presidents.

Through a series of discrete-time duration analyses, my book project shows that risk-prone and assertive presidents are more likely to try to increase their powers. The presidents’ assertiveness also proves to be a relevant cause of their attempts to extend their terms. Interestingly, the individual differences of presidents have a stronger explanatory power than complementary explanations of constitutional change (i.e., institutional and contextual arguments).

A research agenda centered on unearthing how the individual differences of presidents relate to relevant political outcomes will lead to a deeper understanding of how the presidency works. But it also has an important normative implication. Voters and political parties would be better prepared to anticipate some of the consequences of choosing certain types of individuals for office, being able to minimize the problems of representation that arise when voters and organizations feel deceived by the politicians they have supported. Such level of knowledge would resemble an extensive hiring practice in the corporate world. For instance, Beagrie (2005) estimates that two thirds of medium to large organizations use some type of psychological testing in the United States, including aptitude as well as personality, in job applicant screening. The main reason for delivering personality tests is that it contributes to improve employee fit and reduces turnover up to 70% (Wagner, 2000). I argue that such valuable knowledge should be available to voters and organizations that participate in the selection of the most powerful position in the country.

My manuscript is part of a long-term research program for which I have an extensive list of projects. For more information on my professional background and academic projects, please refer to www.ignacioarana.com.

References
Beagrie, S. 2005. “How to… Excel at Psychometric Assessments.” Personnel Today: 25-28.
Goldberg, Lewis R. 1999. “A Broad-Bandwidth, Public Domain, Personality Inventory Measuring the Lower-Level Facets of Several Five-Factor Models.” Personality psychology in Europe 7: 7-28.

Goldberg, Lewis R., John A. Johnson, Herbert W. Eber, Robert Hogan, Michael C. Ashton, C. Robert Cloninger, and Harrison G. Gough. 2006. “The International Personality Item Pool and the Future of Public-Domain Personality Measures.” Journal of Research in Personality 40(1): 84-96.

Wagner, William F. 2000. “All Skill, No Finesse. Personality fit is every bit as important as your new hire’s technical ability.” WORKFORCE-COSTA MESA- 79(6): 108-117.


IMG_0700Ignacio has a PhD in Political Science from the University of Pittsburgh. He currently is a postdoctoral researcher at the Pontificia Universidad Católica de Chile and coordinates Panoramas (http://www.panoramas.pitt.edu), the online forum of the Center for Latin American Studies at the University of Pittsburgh. His research interests center on Latin America and include presidential behavior, constitutional change, judicial politics, informal institutions, and executive-legislative relations. He has published articles in the Journal of Legislative Studies, Latin American Politics and Society, Latin American Perspectives and Política. Before entering the PhD, he worked at the international desks of the newspapers El Mercurio (Chile, 2002-2008) and ABC (Spain, 2008). He can be reached at www.ignacioarana.com.

France – A state of emergency

On Friday 13 November, Paris was attacked by terrorists, who killed 129 people in horrific circumstances. How has President Hollande responded? What are the likely domestic political consequences?

In immediate response to the attacks President Hollande invoked a state of emergency (l’état d’urgence).1 This measure was introduced in 1955 at the time of the war in Algeria. The current application is the sixth. The previous time it was invoked was in 2005 during the riots in parts of Paris. Prior to then it was applied three times in relation to Algeria and once in 1984 with regard to the violence in New Caledonia. It’s a measure that doesn’t so much give the president more power personally. Instead, it gives more powers to the main ministerial and administrative actors in the domestic security context. So, the Minister of Interior gains certain powers as do prefects, who are the representative of the central state in the localities. It has a legal not a constitutional basis, though its constitutionality has been tested and approved by the Constitutional Council.

On Monday 16 November President Hollande followed up this measure with a speech to a Congress of parliament at Versailles. Bringing together the two houses of the legislature, presidential addresses of this sort have only been possible since the 2008 constitutional reform. Prior to that time, in strict adherence with a notion of the separation of powers, the president could only have a message read out to parliament and could not set foot in the institution. This was only the second in-person presidential address since the 2008 reform.

In his speech to Congress, President Hollande talked about extending the state of emergency for three months. He also introduced the idea of rewording Articles 16 and 36 of the 1958 Constitution to give this measure some sort of constitutional footing. At present, Article 16 deals with the president’s emergency powers, which are a step above a state of emergency, while Article 36 refers to the ‘state of siege’, which, again, is different from a state of emergency. As yet, not least because of subsequent events, no measures have been formally introduced.

President Hollande is now in the fourth year of his presidency. While leaders who are faced with severe security threats often benefit from a wave of public sympathy, President Hollande has not been in this position. He continues to record among the lowest satisfaction ratings of any president of the Fifth Republic. Following the terrible Charlie Hebdo attacks in January 2015 there was a wave of national unity that included most of the political class, yet the opinion polls did not rebound in President Hollande’s favour.

It is too early to tell, not least given the events that followed on Wednesday morning in Saint-Denis, whether public opinion will rally around President Hollande in the current circumstances. There is, though, reason to suggest that it will not. The 13 November attacks again met with a wave of national solidarity, but this time party political opinion has quickly divided. President Hollande’s speech at the Congress of parliament was received with dignity. However, little such dignity was in evidence during the questions to the government in the National Assembly on Tuesday 17 November, though this was in the presence of the prime minister rather than the president.

In short, domestic security policy already seems to have become more politicised than it was before the attacks. Needless to say, this issue is related to, or has the potential to be related to, other salient and highly divisive issues, such as the EU’s policy on migrants, the Schengen agreement, welfare policy, and freedom of communication. In this context, the rise of the National Front is salient.2 Their new leader, Marine Le Pen, is trying to ‘de-demonise’ the party, in effect making it electable. The mix of a volatile set of policy issues for which she has some seemingly easy answers and yet a party that is increasingly aiming to present itself as a party of government may well mean that it gains yet more appeal.

There is also the traditional right. The most likely winner of the 2017 presidential election is going to be the candidate of the former UMP, the Republicans (les Republicans). The party’s leader is none other than Nicolas Sarkozy, who has ambitions to return to the presidency. Prior to his election in 2007, he made his name on law and order issues. Therefore, events would seem to be playing into his hands. However, Sarkozy is a very contested figure within the party. Figures such as former PM, Alain Juppé, still have presidential ambitions and the road to the candidacy will be a rocky one.

In the meantime, France is traumatised. There is a certain unity, but there is a tremendous amount of fear. The governing regime, and, indeed, the political class generally, has formal legitimacy, but lacks popular support. An overseas war risks spreading to the streets of the capital and France generally. A state of emergency has been invoked in response. It all sounds eerily familiar, but things have moved on in the last 60 years. A simple change of regime will not alter the underlying issues and there is no saviour figure waiting in the wings. As things stand, then, France is likely to lurch on from crisis to crisis and from president to president.

Notes

  1. There is a nice review of the history of this measure by Sylvie Thénault in Le Movement social, no. 1, (2007), pp. 63-78. It is Open Access.
  2. There is a special issue of French Politics on the recent spike in support for the National Front available here, including free-to-access articles.

Croatia – Presidential election to be decided in runoff between centre-left incumbent Ivo Josipovic and conservative Kolinda Grabar Kitarovic

Presidential elections were held in Croatia on 28 December 2014. Incumbent Ivo Josipovic of the ruling Social Democratic Party ran for re-election and had three challengers. He finished the race almost neck and neck with Kolinda Grabar Kitarovic, the candidate supported by the centre-right Croatian Democratic Union. As none of the candidates passed the 50% threshold, a run-off will be organized on 11 January 2015.

The Croatian Electoral Commission reported a turnout of 47.14%, slightly higher than in 2009, and the following results:

  • Ivo Josipovic (Social Democratic Party, SDP) – 38.46%
  • Kolinda Grabar-Kitarovic (Croatian Democratic Union, HDZ) – 37.22%
  • Ivan-Vilibor Sincic (Zivi Zid) – 16.42%
  • Milan Kujundzic (Croatian DawnPeople’s Party, HZ) – 6.30%

Due to the limited powers of the head of state, the presidential contest was regarded as a key test for political parties before the 2015 general election. A severe economic crisis during which Croatia’s economy shrunk for six consecutive years has dented the popularity of both SDP and President Josipovic. Grabar-Kitarovic – NATO’s Assistant Secretary General for Public Diplomacy since July 2011, a former Ambassador of Croatia to the United States (2008 – 2011) and minister of European Integration (2003-2005) and Foreign Affairs (2005-2008) – has particularly focused her campaign on economic issues and constantly challenged President Josipovic’s ability to deal with the deep economic and social crisis.

The presidential election also drew attention to the good performance of the new populist parties set up by 25-year-old activist Ivan-Vilibor Sincic and Milan Kujundzic in 2012 and 2013 respectively.

The Croatian presidency is nowadays seen as a largely ceremonial institution, after the 2000 constitutional amendment shifted considerable power from the presidency to the parliament. Under the 1990 Constitution, the head of state had the power to appoint and dismiss the prime minister (Art. 98). Moreover, the government was responsible to both the parliament and the head of state (Art. 111).

Under the 2000 Constitution, the president has been constrained to nominate as candidate for the Prime Minister position the person who enjoys the support of the majority in the parliament after the distribution of seats (Art. 97). Moreover, the cabinet is solely responsible to the legislature (Art. 114). Thus, although the President retains some influence over the process of government formation and may be able to decide on the organization of early elections under certain circumstances (Art. 109-111), the head of state’s involvement in the making and breaking of governments has been considerably diminished.

Thus, among semi-presidential states, Croatia is classified as a president-parliamentary sub-type between 1991 and 2000 and as a premier-presidential sub-type since 2001.

Despite the decrease in the extent of presidential powers, the 2000 Constitution does grant the head of state several prerogatives that are not negligible. Although lacking the power to veto legislation, the President has the right to challenge parliamentary bills to the Constitutional Court before signing them into law (Art. 88). Additionally, he or she has an important say in the formulation and execution of foreign policy (Art. 98), is the commander of the armed forces (Art. 99), and has exceptional powers during the state of war (Art. 100). The president also has the right to initiate constitutional changes, which must be approved by a two-thirds majority of all MPs (Art. 142-144), and to call for a referendum at the government’s proposal and with the counter-signature of the Prime Minster (Art. 86).

Both candidates who will contest the runoff on 11 January promise to increase the influence of the presidency over internal politics. Ivo Josipovic has pledged to initiate a constitutional amendment so that citizens can ask for any subject that is supported by at least 10,000 signatures to be debated in parliament. Additionally, he is supporting the adoption of a mixed electoral system and a territorial reform that would reorganize Croatia’s 20 counties into 5 to 8 regions, for which he would be ready to call for referenda.

While Kolinda Grabar-Kitarovic is against any modification of the Constitution, her presidential programme includes a wide range of social and economic measures. She promises to strengthen the rule of law, to protect the rights of the members of the armed forces and war veterans, to promote economic growth, and to solve the economic crisis for which she holds the centre-left government and President Josipovic responsible. However, she has not indicated the means through which she would be able to push these reforms given the absence of presidential powers over these domains.

Ultimately, the ability of either candidate to enforce their electoral promises after the 11 January poll depends not only on their formal powers but also on their relation with the government and the parliamentary majority. If Kolinda Grabar-Kitarovic wins the presidency, then her influence on the political system might be limited during the period of cohabitation with the SDP-led government that would ensue until at least late 2015, when the next general election is scheduled. However, cohabitation might not be avoided after the next parliamentary election even if Ivo Josipovic wins the presidential runoff, as current polls show SDP losing ground in favour of a new left-wing rival, while HDZ remains the most popular party in the country.

Croatia – Referendum criticised by the president and prime minister passed with large popular support

On December 1, Croatia held a referendum on whether the constitution should include a definition of marriage as a “union between a woman and a man”. Although the president and the government urged the population to vote no, the proposal was supported by almost two-thirds of the people who turned out to vote. As a result, the Croatian Constitution will be amended, effectively banning same-sex marriage.

The referendum was called as a result of a civil initiative and is the first of this type to be organized in Croatia.

According to the Croatian Constitution, the Parliament must call a referendum when so requested by ten percent of all voters (art. 87). A petition signed by 750,000 citizens calling for the organization of a referendum on the amendment of the constitution was presented to the Parliament by a conservative group called “In the Name of the Family” in June 2013. As a result, although the centre-left government enjoys majority support, the parliament voted to organise the referendum on 8 November 2013.

The popular initiative was strongly backed by the Catholic Church and came as a reaction to the centre-left government’s plans to introduce a Life Partnership Act that would grant same-sex couples equal rights to married couples.

President Josipović, a former member of the Social Democratic Party (SDP), actively campaigned against the referendum and expressed his decision to vote against it. He called the referendum unnecessary and urged the population to reject a constitutional amendment that would discriminate against minorities.

Similarly, PM Milanović, the SDP leader, along with other cabinet members advised the population to vote no. The prime minister characterised the referendum as pointless, given the government’s determination to pass the bill on common law partnerships. Thus, the prime minister assured the public opinion that the result of the referendum would not have negative consequences for same-sex couples.

Nevertheless, the constitutional amendment received the support of almost 65 percent of the people who took part in the vote. Although the turnout was less than 38 percent, the referendum was declared valid, as the Constitution does not set a minimum participation threshold. President Josipović confirmed that the Constitution will be amended according to the referendum results. He nevertheless endorsed the government’s plans to introduce legislation that recognises same-sex couples living together as life partners with legal rights.

The results of the referendum may be interpreted as an increase in the support for the centre-right opposition. The Croatian Democratic Union (HDZ), which campaigned for a Yes vote, has been in opposition since 2011, when it lost the general election to the centre-left coalition led by the SDP. However, a public opinion survey conducted in November 2013 showed that SDP maintains its position as the strongest Croatian party. The SDP also controls 61 seats out of the 151-seat parliament. Together with its coalition partners, SDP can count on the support of a 80-seat parliamentary majority to pass the bill on life partnerships. The survey also indicates that, one year before the next presidential election, Ivo Josipović remains the most popular politician in the country.