Switzerland – The difficulties of speaking with one voice: intra-executive coordination in a collegial presidency

Our blog only rarely covers Switzerland – in fact, it has been only been covered in four of our over 1000 blog posts to date (three of which were cross-country comparisons). This is largely due to the fact that the Swiss presidency differs considerably from the other presidencies discussed here. Rather than the incumbent of a unipersonal office, the Swiss president is the chairperson ‘Federal Council’ – a seven-person collegial executive elected for a fixed four-year term in a joint session of the houses of parliament – and rotates annually among the members of the council.[1] As first among equals, Swiss presidents are effectively the country’s highest representative; yet, they have no authority over their fellow councillors. Given that the Federal Council is a voluntary all-party/grand coalition (its party composition is determined by a largely stable ‘magic formula’) and acts ‘in corpore’ (as one body), it is often presented as a unitary actor. However, a range of issues and discussion have highlighted a very interesting phenomenon in this respect – the lack of coordination between different councillors and the difficulties of the collegial presidency to speak with one voice.

Official portrait of the Swiss Federal Council © Schweizerische Bundeskanzlei 2019

Newly elected Federal Council president Ueli Maurer irritated national and audiences at the World Economic Forum in Davos two weeks ago when he remarked that the Swiss government had “long since dealt with the Khashoggi case. We have agreed to resume the financial dialogue and to normalise relations [with Saudi Arabia].” This assessment was however not shared by his fellow councillors, and particularly those leading the foreign relations and trade departments were quick to stress that relations had all but normalised (and that trade restrictions remain in place). At the same time, the finance department, led by Maurer himself, is continuing its ‘finance dialogue’ with Saudia Arabia. Thus, Maurer’s remarks not only highlight a lack of coordination within departments, but also between the council and its highest representative.

A similar pattern emerged with regard to the new framework treaty between Switzerland and the European Union. The results of five-year long negotiations had been presented in December 2018, eliciting contradictory comments from federal councillors – while Ingazio Cassis (heading the foreign affairs department) praised the draft agreement, his colleagues criticised the deal and the Federal Council failed to present a common position (this had already been an issue in early 2018 during before the last phase of negotiations). Eventually, Maurer called for re-negotiations, despite clear signals from the EU commission that there would be no leeway to renegotiate the current agreement.

Last, parliamentarians have increasingly voiced their discontent with the lack of coordination among councillors and their government departments in important areas. Most recently, this was illustrated the lack of a common political and economic strategy on investments from and engagement with China – although promised over ten years ago, policy differs greatly among the departments which hold various responsibilities in this regard.

These examples show the problems of coordination in a collegial presidency in which there is only a first among equals, yet none above (primus inter pares vs primus supra pares). Nevertheless, none of these is (yet) sufficient to change the council’s modus operandi. Nevertheless, the new EU treaty may force councillors to adopt a more cooperative approach – both among each other as well as between the Federal Council and parliament. To date, such questions as well as that of political leadership of Federal Councillors has yet received little scholarly attention. Although the Swiss presidency is relatively unique (the closest comparable example are the Captains Regent in San Marino), the above examples demand further investigation and could well mirror patterns of intra-executive conflict in other regime types.


[1] Although the president is formally elected by parliament, the order of rotation is strictly based on the length of time that councillors served on the Federal Council.

This post first appeared on presidential-power.com on 4 February 2019

Poland – The president as legislator

On 20 November, Polish president Duda submitted another bill proposal the Sejm (lower chamber of parliament), this time aimed at creating local social services centres. Although presidents have frequently used this prerogative in the past (to the same degree as vetoes and requests for judicial review), Duda has been particularly active and proposed over two dozen separate bills so far. However, the Polish president is only one of four European presidents vested with the power to propose ordinary legislation – interestingly, the other three countries are also from Central and Eastern Europe (i.e. Hungary, Latvia, and Lithuania).

Polish president Duda presents the act amending the law on legal aid and education that resulted from his initiative, 30 July 2018 / ® Polish Presidential Office 2018

The president’s right to propose legislation has been included in all Polish constitutions since the fall of Communism, including the heavily amended Communist constitution (it was not, however, part of the Polish interwar constitutions). As the Polish president only possesses a block veto, the provision partly compensates for the lack of agenda-setting power through amendatory observations (as is the case in most other post-communist systems). Nevertheless, parliament is not obliged to consider presidential initiatives and can – once they have received by the appropriate committee – be abandoned without fearing any consequences. Furthermore, as presidents do not have any reserved policy areas for their initiatives, the usefulness of the power depends very much on the composition of parliament and government. If presidents have a majority (or at least strong presence) in parliament and/or government, bills are more likely to be accepted. Presidents without significant partisan support in other institutions should have little chance of seeing their bills become law. Accordingly, when Polish presidents made use their prerogative, they did so with varying frequency and varying degrees of success (see Table 1 below).

Interestingly, the first three Polish presidents (who all experienced longer periods of cohabitation and unified government during their terms) used their powers largely independently of the majority situation in parliament and government. For Lech Walesa, this may largely be explained by the fact that neither the fragmented Sejm, nor the stream of coalition governments had the resources to craft legislation, allowing the president to set the agenda. However, given that less than half of his initiatives were successful, actual implementation of policy can only be part of the reason why he (and his successors) used this power so frequently. On the one hand, we may be able to explain the use of initiatives by presidents’ desire to communicate with voters – more so than ‘reactive powers’ like the veto, legislative initiatives allow presidents to proactively highlight their policy preferences. On the other hand, interviews I conducted with presidential advisors in Poland for my PhD suggest that the presidential legislative initiative can be borne out of cooperation between president and government and provide a shortcut compared to regular parliamentary procedure – presidential bill proposals do not require the same statements or reports from ministries and agencies before they can be discussed (and passed) in parliament. However, the scale of these cases is difficult to ascertain without more detailed knowledge of individual bills.

To date, the use of presidential legislative initiatives outside of presidential systems has hitherto not been subject to much research. Nevertheless, the case of Poland raises a number of interesting questions that go beyond the four European cases mentioned above. First, why would presidents be vested with the power to propose legislation in the first place? Even where they are not formally part of the executive, they are not part of or emanate from the legislature either. Granting presidents proactive legislative prerogatives, particularly in systems where they are not the dominant actor, thus makes little sense. Second, how can we explain the use of this power – especially across varying partisan-political constellations? Furthermore, if bills are more likely to be accepted during friendly/unified relations between president, parliament and government, why would presidents need to propose legislation? After all, their policy preferences should already be implemented. Third, while part of the answer to the last question lies in the publicity potential of the bills, how can we reliably identify those bills that are (informal) collaborations between president and government to circumvent more lengthy parliamentary procedure? The answer to the latter would likely also reveal new information on president-government collaboration in semi-presidential and parliamentary regimes.

This post first appeared on presidential-power.com on 6 December 2018

Historic presidencies and their legacies – Weimar Germany and the German Democratic Republic

No other date in modern Germany is as laden with significance as 9th November. While two events from the darkest chapters of German history – Hitler’s unsuccessful ‘beer hall putsch’ in 1923 and the Reichspogromnacht (often called ‘the night of broken glass’) in 1938 – took place on this date, the day is also associated with the fall of the Berlin wall in 1989 and the proclamation of the first Republic in 1918. In this blog post, I take the recent anniversary of the latter two as the occasion to look more closely at the presidencies of the Weimar Republic and the German Democratic Republic. Political scientists are largely aware of the (powerful) Weimar presidency, not least due to the fact that Maurice Duverger included it as an example of semi-presidentialism in his seminal book and article. However, the fact that the German Democratic Republic likewise had a single-person presidency for the first eleven years of its existence is relatively unknown.

Weimar Republic (1919-1934): The president as an ‘Ersatzkaiser’

The first German president Friedrich Ebert in 1925 / (c) Bundesarchiv

The presidency of the Weimar Republic was the first instance of a non-hereditary head of state in Germany. Thus, the discussions in the constitutional convention focussed among others on the French experience, although it was rather seen as a warning against concentrating too much power in the presidency than genuine inspiration, and other republics. Nevertheless, the convention eventually decided against a collegiate head of state and created a comparatively powerful single-person presidency. In hindsight, it was often seen as too strong and was therefore labelled ‘Ersatzkaiser’ – ‘substitute emperor’. Nevertheless, not all relevant powers are necessarily captured by contemporary approaches to measure presidential power. The president appointed the Reichskanzler (chancellor) and the cabinet ministers, yet these had to step down if the Reichstag (parliament) passed a vote of no-confidence. The constitution clearly gave the chancellor the right to determine the general direction in policy-making, yet presidents also claimed such a right for themselves, especially in foreign and defence policy. The president had no formal veto power (interestingly, the possibility of a particular type of pocket veto existed even then) but could put a bill to a referendum. The president could also dissolve the parliament at any time; however, at least officially this was only possible once for the same reason. Last, the president was able to force individual states to meet their obligations to the federation – even with military force. Shugart and Carey (1992) give the Weimar president an overall score of 16, largely driven by his prerogatives in government formation and dismissal and parliamentary dissolution, which is more than the current Russian presidency (14) but less than the Belarussian one (19).

Package vetoPartial vetoDecreeExcl. intro. LegislationBudgetary powersReferendaTOTALCabinet formationCabinet dismissalCensureDissolutionTOTAL
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The election of the presidency contained a number of additional notable quirks. The first president Friedrich Ebert (Social Democrats) was still elected by the constitutional convention for a seven year term; the following two contests were held by popular vote. Thereby, a candidate needed to win an absolute majority in the first round of voting or, failing that, a relative majority in the second round. The second round was however not a run-off – any candidates from the first round could run again and even new candidates could be proposed. In fact, the second president, Paul von Hindenburg, did not compete in the first round of the 1925 election but was only a nominated by the national-conservative ‘Reichsblock’ after its initial candidate was considered not to be sufficiently appealing to beat out a popular opponent. Contrary to most modern semi-presidential systems, the Reichstag also had the right to initiate a recall referendum to dispose of the president (requiring an absolute 2/3 majority of deputies). However, if the recall failed, the Reichstag was to be dissolved and the president considered elected for another seven year-term.

The presidency of the GDR

Portrait of GDR president Wilhelm Pieck on a wallhanging commemorating 10 years of the GDR / (c) LEMO

In October 1949, a little less than five months after the establishment of the (West) German Federal Republic, the German Democratic Republic was founded and enacted a new parliamentary constitution that had already been drafted a year earlier. The GDR was a real-socialist people’s republic and thus naturally not a democracy. However, looking at its institutional structure is nonetheless interesting as it diverges from other countries of the Eastern bloc. In particular, until 1960 it was organised as an archetypical parliamentary democracy and surprisingly similar to its new West German counterpart. The president was elected indirectly by the Volkskammer (people’s chamber – lower house) and the Länder Chamber (states’ chamber – upper house) for a four year-term. Only a relative majority was necessary to elect the president, yet an absolute 2/3 majority in both chambers was needed to recall the president. The president appointed members of the government, yet the constitution stipulated that the largest party group in the lower house nominated the minister-president (prime minister), that each party group of at least 40 MPs was part of the government, and that parliament confirmed the government before it took office. The president had no right to veto legislation; however, he was allowed to voice concerns over the constitutionality of acts and ask the lower chamber’s constitutional commission to investigate these concerns. The president could also not dissolve parliament – the constitution only allowed for self-dissolution (or automatic dissolution in case parliament passed a vote of no-confidence in a new government). The fact that all acts of the president required the countersignature of the prime minister or the respective cabinet minister furthermore highlights the presidency’s subordinate position. Thus, when we apply Shugart and Carey’s (1992) scheme to measure presidential power, we only arrive at a score of just 1 (thanks to the stipulation on a constructive vote of no-confidence).

Package vetoPartial vetoDecreeExcl. intro. LegislationBudgetary powersReferendaTOTALCabinet formationCabinet dismissalCensureDissolutionTOTAL
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The legacy of historic presidencies

After the death of Paul von Hindenburg in 1934, Adolf Hitler as Reichskanzler became acting chancellor and merged the functions of chancellor and president – a move confirmed shortly after in an only moderately democratic referendum. The office was only revived for three weeks when Karl Dönitz took over the office after Hitler’s suicide until the German surrender and then ceased to exist. In the GDR, the office of president was similarly abolished with the death of its officeholder – after Wilhelm Pieck, who had held the position of president since 1949, died in 1960, the presidency was transformed into the ‘Staatsrat’ (State Council). The State Council still had a president who acted as de-facto head of state and head of the executive, but it was legally a collegiate organ. Although there were plans to revive the presidency of the GDR after the fall of the Berlin wall, this never happened due to Germany’s reunification in 1990.

The legacy of the Weimar presidency is much stronger, although it largely served as a negative example. During the West German constitutional convention, delegates quickly agreed that the strong and popularly elected presidency of the Weimar republic had been one of its greatest problems. Consequently, they created a weak, indirectly elected office, and placed responsibility for governance in the hands of the chancellor. Even today, calls for the introduction of popular presidential elections are regularly answered by referring to the Weimar experience and the dangers of populism (as such, arguments often resemble Juan Linz’ ‘Perils of presidentialism’). German presidents are now rarely called upon to provide political (rather than moral) leadership; yet, the Weimar experience and reflections at the constitutional convention continue to influence the way in which incumbents interpret and perform their role as head of state.

This post first appeared on presidential-power.com on 19 November 2018

Estonia – Will Kersti Kaljulaid become more political?

It has been a little more than two years since Kersti Kaljulaid was elected as Estonia’s fourth president since the end of the Soviet occupation. While her election was in many ways remarkable – both parliament and the electoral college failed on five occasions to elect a successor for Toomas Hendrik Ilves, triggering a minor constitutional crisis and a reform of the electoral system – she has been considerably less visible in day-to-day politics than her predecessors. As the next parliamentary elections draw closer, it is not clear whether she will choose to pursue a similar (or even more) apolitical stance or show at least some political preferences.

President Kersti Kaljulaid speaking at the opening of the Estonian parliament, 10 September 2018 / image via president.ee © Erik Peinar

During her first year in office, Kaljulaid remained largely passive – she refrained from playing an active part in the formation of the government shortly after her election and shied away from more controversial issues. The latter also applies to her second year: Kaljulaid (successfully) continued to play the role of global ambassador for “E-stonia” (Estonia as a world leader in digital services) and – together with her Baltic colleagues – repeatedly raised the issue of the region’s national security vis-a-vis Russian aggression with Western (NATO) partners. On the other hand, she failed to follow up on some more critical remarks from her first speech at the opening of parliament in September 2017 in actions or (further) words. For instance, she stressed that ethnic Russian residents of the country were just as Estonian as the ethnic Estonian population. However, the only notable initiative in addressing this issue seems to have been a one-month relocation of her office to Narva (a city dominated by the ethnic Russian population).

During the most controversial political discussion in Estonian politics during the last year, she remained remarkedly quiet. In May 2017 (apparently authorised by a resolution dating back to the year 2000), the government launched a consultation to find the most suitable location for a large pulp mill near Tartu (the country’s second largest city). However, the plans were opposed by a great number of environmental NGOs and local resident groups. Eventually, the government decided the shelve the plans in June this year. Thereby, Kaljulaid failed to comment on the debate apart from a few of vacuous remarks.

Kaljulaid once again used her speech at the opening of parliament in September this year to express concerns over some government reforms. In particular, this concerned a potential privatisation of health insurance provision and further reduction in the welfare state. However, given last year’s track record, it is unclear whether this will result in any attempts to influence policy or to actively avert a change in the status quo. It is likewise doubtful whether Kaljulaid’s comments can be interpreted as cues to political parties with regard to the upcoming parliamentary elections in March 2019. Over the last months, the Estonian Conservative People’s Party (EKRE) – a national-conservative party that entered parliament for the first time in 2015 – has gained strongly in opinion polls and may emerge as the second largest party.

The Estonian president has two attempts to nominate a candidate for prime minister after elections and can thus have a decisive influence on government formation – especially as electoral results do not always allow the largest party to form a coalition (in about a quarter of governments formed since 1992, the prime minister was not from the largest party). Therefore, we should closely monitor Kaljulaid’s behaviour and statements in the run-up to the parliamentary election. She is unlikely to be as outspoken about her coalition preferences or dislike of particular candidate as her predecessor was in 2010, yet it may still help us to understand how she will work with the next government and whether she will become more active in the future.

This post first appeared on presidential-power.com on 25 October 2018

Poland – 3 years into his presidency, Duda’s role still remains unclear

After three years in office, the position of president Andrzej Duda within the current political situation in Poland continues to be somewhat unclear – swinging between unflinching support for the governing party and legitimising force for its policies, and presenting himself as the defender of the rule of law. With a number of crucial elections coming up over the next year, the way in which he positions himself vis-a-vis the ruling party may be crucial to the success of his (former) party and, in turn, to ensuring his own re-election in 2020.

“3 Years in Office” – Promotional video on the website of the Official Website of the President – prezydent.pl

It has been varied summer for president Duda. In July, his initiative to hold a referendum on a new constitution (the date was to coincide with the centenary of the independence declaration in November) was eventually rejected by the Senate as almost all senators of his own party (Law and Justice – PiS) abstained and the oppositional Civic Platform (PO) voted against the plans. Although Duda’s motivation for the referendum was never particularly clear, the rejection can be seen as a defeat for the president – the cushioning of the rejection through mass abstentions may have been an olive branch extended to the president by the party leadership, but it could also merely have been an attempt to save face and not give the public the impression that parliament and president were actively working against each other.

A few weeks later, Duda experienced a success when he vetoed amendments to the European Parliament election law that would have effectively reduced the number of parties able to win seats to two – the governing PiS and the main opposition party PO. While the government (arguably rightfully) argued that the current system was too complicated, it is clear that it aimed to alter the rules of the game to the degree to its advantage in every possible way. Given that a 3/5 relative majority in the Polish Sejm (lower house) is needed to override the veto, the government will have to come up with a new solution or drop the bill. For Duda, the veto was in any case strategic – while he may not need to fear a strong contender from the left in his fight for re-election, his chances for re-election would be greatly increased if the smaller right-of-centre parties that swept up much of the protest vote in the most recent parliamentary elections (led among others by the surprisingly third-placed presidential candidate Andrzej Kukiz) supported him.

Nevertheless, these incidents stand in contrast to Duda’s other behaviour. After he vetoed parts of the government’s controversial judicial reform last year, he later signed bills after some cosmetic changes that gave him slightly more say in the appointment of judges. Recent events, too, highlight that he is only too happy to continue quietly notarising the changes made by the government. As part of the reforms, the mandatory retirement age for Supreme Court judges was lowered from 65 to 70, sending 40% of judges into retirement. While the legality of immediate retirement of current judges is questionable and still being considered by the European Court of Justice, Duda already announced vacancies for the positions in question. Importantly, this includes the 65 year-old president of the court who – according to the constitution – serves a six year-term that would only end in 2020. On Tuesday, the president then announced that he had approved the applications of five Supreme Court judges to remain in their positions for another three years (a new prerogative given to him) – incidentally, these are those that had previously been positively evaluated by the reconstituted National Judiciary Council and thus close to the regime (even though some of their applications apparently failed to follow conventional standards), while no action was taken on applications of others (they are assumed to be rejected, but this is not entirely clear).

In October and November 2018 Poland will hold local and regional elections, which will provide a first test for the ruling party with regard to the elections to the European Parliament in spring 2019 and the parliamentary election in 2019. It can be expected that Duda, if he is active in the campaigns at all, will support his (former) party – nevertheless, as Duda also needs to start on building momentum for his own re-election campaign, it is quite likely that we will some more occasional disagreements with the government. Such incidents should however be seen as largely strategic – until now, Duda has now shown that he substantially disagrees with the Hungary-style ‘illiberal democracy’ that the government is introducing.

This blog post first appeared on presidential-power.com on 13 September 2018.

Germany – President Frank-Walter Steinmeier, the unofficial foreign minister

After more than seven years as Germany’s foreign minister, Frank-Walter Steinmeier stepped down from his cabinet post to become the country’s 12th Federal President in early 2017. Despite his new role and the limited prerogatives of the office, Steinmeier remains the most prominent voice in German foreign policy – almost as if he had never left the foreign ministry.

German Federal President Frank-Walter Steinmeier | © German Presidential Office / Henning Schacht 2018

The constitutionally prescribed role of the German president is generally limited to representative functions, although it affords office-holders with some leeway in times of crisis. The representative function extends to foreign affairs and as head of state the president signs international treaties on behalf of the German Federal Republic. Nevertheless, contrary to other countries the president does not take part in substantive foreign policy decision or represent the country at intergovernmental meetings.

Steinmeier was elected by the outgoing ‘grand coalition’ of Social Democrats and Christian Democrats in early 2017 and it can arguably be credited to his exceptionally strong leadership that parties renewed their coalition following the autumn 2017 legislative elections (in particular, persuading the Social Democratic leadership to make themselves available as junior coalition partner once again). Already shortly after his inauguration, Steinmeier harshly criticised developments surrounding the Central European University in Hungary during his speech to the European Parliament and his criticism of the far-right Alternative for Germany has likely been noted internationally. He furthermore made no efforts to retract or soften any statements he had made during his ministerial tenure (most prominently his assessment of U.S.-president Donald Trump as a hate preacher and danger to democracy).

Having just conceded his post as party leader and designated Social Democratic candidate for chancellor, his immediate successor in the foreign ministry – vice-chancellor Sigmar Gabriel – had a more difficult start and only slowly came into his own. However, Gabriel already lost his post less than a year later in the cabinet reconfiguration following the renewal of the grand coalition. His successor, former minister of justice Heiko Maas, has only formally been in office since March this year and is still trying to make his mark. His open criticism of Vladimir Putin’s re-election and arguments in favour of ongoing sanctions as well as his opposition to tariffs introduced by the U.S. against car imports were widely noted. Nevertheless, he still lacks the reputation and gravitas that enabled Steinmeier to assert German interests on the European and international level.

In contrast, president Steinmeier has been able to maintain a much more influential voice in Germany’s foreign policy. During his recent state visit to the United States (notably yet unsurprisingly lacking an invitation to visit the White House), although once again largely representative in character and not an event that would usually make the front pages of any newspaper, he articulated more clearly than ever his vision of Germany as a leader in promoting democracy and becoming an antipole to the politics of the current U.S. administration.

However, the reason Steinmeier has been able to maintain such a vocal role in Germany foreign policy is not merely the result of his own strength and political opportunity. Appearances by the president are closely coordinated with the Chancellor’s office and the the foreign ministry (a few years ago, government MPs even sought to find legal means to ‘muzzle’ the president with regard to foreign policy). Thus, at least partly Steinmeier is taking an active role because he is allowed to do so. Yet at the same time, the Federal government is currently caught up in discussions about refugee policy (any European solutions are regarded as remit of the Chancellor, so that the foreign ministry does not play a role here) and the respective conflict between Merkel’s Christian Democratic Union and its Bavarian sister party, the Christian Social Union. Coalition parties (including Steinmeier’s own Social Democrats) may thus also benefit from Steinmeier’s activism in foreign policy given that they currently lack the resources to set the tone in this area and the president has not majorly deviated from their preferences. Yet, the more the president is afforded freedom, the more difficult it will be to rein him in once government priorities change. President Frank-Walter Steinmeier has already set a precedent through his active involvement in government formation; he may set one in the formulation of German foreign policy as well.

This post first appeared on presidential-power.com on 28 June 2018

Poland – President Duda pushes forward with constitutional referendum idea

Earlier this month, Polish president Andrzej Duda once again pushed his idea of writing a new constitution and holding a referendum to consult the population on the most important details. Although 10 & 11 November 2018 (centenary of the declaration of the Second Polish Republic) has already been announced as a potential date and Duda has said that the referendum would include ten questions, neither the content of these questions nor his exact strategic motivation for pursuing this idea are known. Furthermore, the PiS government seems to have its own plans for constitutional reform that may clash with the president’s initiative.

President Andrzej Duda (middle) attends a sitting the Polish Senate – image via wikimedia commons

Poland has one of the more complicated recent constitutional histories in comparison with other countries. Following the roundtable negotiations in 1989, the old Communist constitution was first amended in two steps (among others by creating the office of a president and laying the foundations for the first semi-democratic elections). After the drafting of a new constitution was stalled by parliamentary fragmentation and political polarisation, politicians agreed on the so-called “Small Constitution” in 1992 that set out the relations between the major institutions, yet was far from a full-fledged constitutional document. It was only in 1997 that Poland received a full new constitution that lived up to the name. Since then, there have been no major amendments that would have substantively affected the working of the political system.

The idea of a new constitution is nothing new among politicians of the ruling Law and Justice (PiS) party to which Duda belongs as well. Already in 2005, when the party campaigned on the promise of building a “4th Republic”, a new constitution was proposed but due to the lack of a constitutional majority and fragility of the government this idea was never put into practice. Given the great number of changes to the political and legal system introduced by PiS since they returned to power in late 2015 and the fact that some of these were thwarted by their incompatibility with the current constitution, it is not surprising that this idea has been reactivated. A new constitution (or major changes) would help to both legalise and legitimise the government’s controversial reforms and take wind out of the sails of its critics. Last, both in 2005 and now, the 1997 constitution has been denounced as being the work of “post-communists”, meaning that it was drafted by the Democratic Left Alliance (SLD) as the successor to the Communist party (who PiS, having originated from the Solidarity movement, naturally oppose). Thus, it is relatively clear why PiS politicians want a new constitution. However, it is not entirely clear why the president (not the government) would push this idea. While there are several potential explanations, they are not all mutually exclusive and may only together paint the full picture.

Referenda (or the promise thereof) are a staple in the populist toolbox of political leaders in Europe and beyond. Thus, Duda may simply be preparing for his re-election campaign in early/mid-2020 and use his activism to gain greater supporter among the electorate. By promising a range of 10 questions, this approach differs from that of the government, which has hitherto introduced all changes without consulting the public and rather justified its moves ex-post. Duda may also try to save the position of the presidency within the Polish institutional structure (it has been rumoured that at least one referendum question will concern this issue). The president will be keen to keep the powers of his office, whereas the government is allegedly planning a greater concentration of power in the hands of the Prime Minister (similar to the German system) after consulting with a number constitutional lawyers and academics. Nevertheless, such plans were already mooted under the governments of Donald Tusk (2007-2014) but eventually dropped due to a lack of support among MPs and the public.

The referendum could also be a way for presidency and government to test out public attitudes towards changes without endangering the re-election of the government next year or merely. However, it is difficult to ascertain to what degree they coordinate their actions. Although it is clear that president and government generally agree on the direction of further political reforms, there have been a number of public conflicts that may or may not be genuine.

Irrespective of the fact that using the procedures of a constitution that is portrayed as illegitimate to legitimise a new document is bizarre, president Duda now has to send a request to the Senate (second chamber) and ask for the referendum to be scheduled. The speaker of the Senate and the president’s plenipotentiary for the referendum have already met several times, but it appears that more negotiations need to be completed before the actual request is made. Yet even then it is difficult to predict whether a majority of the public would support any changes to the current constitution. Although the PiS government continues to be relatively popular and the president’s plenipotentiary claims that 80% of Poles want a constitutional referendum, Poles are not particularly keen on politically motivated referenda and may simply not turn up at the ballot box. The last referendum – held on request of then president Komorowski in an attempt to thwart a second-round victory in the presidential elections by Andrzej Duda – concerned the electoral system, political party financing and tax law, but turnout was just 7.8%.

This post first appeared on presidential-power.com on 24 May 2018

Estonia – Reforming the presidential election: A neverending story?

Estonia has debated the way in which the presidency should be elected since its creation by the constitutional convention in 1991-1992, After several unsuccessful initiatives and cosmetic changes throughout the years, the failure to elect a president in 5 rounds of voting in 2016 finally appears to have given the reformers sufficient momentum. Nevertheless, to date neither the new system nor the way it will be introduced is clear and there is still a minor chance the process will come to naught, thus continuing the ‘neverending story’ of presidential election reform in Estonia.

Election of the Estonian president 2006 in the electoral college | © Riigikogu 2006

The Estonian constitutional assembly debated the presidency at length. After many drafts for the new constitution included a powerful and popularly elected presidency, the assembly eventually chose a strongly parliamentarian draft that included an indirect presidential election by parliament and an electoral college. To appease the public and some critics of the constitution, the first presidential election was however held by semi-popular vote: The public voted on candidates in the first round and the Riigikogu (the unicameral parliament) then decided between the two frontrunners. Since 1996, Estonian presidents have been elected through an entirely indirect process. There are three rounds of voting in the Riigikogu in which an absolute two-thirds majority (68/101 deputies) is required to elect a president (n.b. the third round just includes the two frontrunners from the second round). Failing that, the election is handed to the Valimiskogu (electoral college) consisting of the 101 members of the Riigikogu and roughly 2.3 times as many representatives of local councils (sending 1-10 councillors each based on population size). The Valimiskogu then has two rounds to elect a winner with an absolute majority. Thereby, the first round automatically includes the candidates from the third round in the Riigikogu and can include newly nominated candidates; the second round once again only includes the two frontrunners.

Since the constitutional assembly, there has been sizeable support in the Estonian population to introduce popular elections. Former presidents Lennart Meri (1993-2001) and Arnold Rüütel (2001-2006) called for popular elections and proposals were floated again and again. However, they were never supported by a majority of parties and were regularly voted down or shelved given more pressing political problems. One of the most important factors in this appears to be politicians’ idea of Estonia as a parliamentary republic which would be thrown out of balance by introducing a popularly elected president. To date, the only successful change to presidential election procedures happened in 2010, yet had little substantive effect. Up until then, local council did not follow a coherent set of rules when selecting their representatives for the Valimiskogu. The amendment supported by all parties bar the Centre Party (which stood to lose the most) now stipulated that there was only to be a single round of voting on the representatives. Officially, this was to ensure that larger parties would not be able to claim a disproportionate share of electors. Nevertheless, as only the city councils of Tartu and Tallinn send more than two electors (4 and 10, respectively), this was rather an attempt to curb the Centre Party’s traditionally large influence in these councils.

The failure to elect a successor for president Toomas Hendrik Ilves (2006-2016) in five rounds of voting – the election had to be handed back to the Riigikogu after voting in the Valimiskogu remained inconclusive – finally gave reformers sufficient momentum, albeit only in combination with an impending territorial reform that would reduce the number of local councillors by half if the current system was kept. However, two reform attempts were necessary to start the process. An initiative to introduce direct presidential elections with a two-round run-off was proposed by the Centre Party in early 2017 but was withdrawn soon after. Only after further negotiations between government parties were new proposals worked out and are currently debated in coalition working group.

Should a reform in fact take place, then a direct presidential election appears out of the question – despite the Centre Party’s insistence, its coalition partners just cannot be persuaded to even consider the proposal. Likewise, it appears that the ratio of local electors vs Riigikogu deputies will remain the same if not increase (ratios of 2:1 to 3:1 are currently debated). This would of course mean that local municipalities would send more electors than before – likely a minimum of two (instead of one). Furthermore, there seems to be more and more support to transfer the whole election to the Valimiskogu (only one out of five elections was completed in parliament in any case). The latter proposal was already once presented by president Lennart Meri in the late 1990s, yet was torn apart by media and politicians alike. The voting procedure, too, is likely to change – a preliminary draft foresees a maximum of five rounds of voting with the worst performing candidates being consecutively eliminated and a relative majority requirement in the last round (n.b. this is similar to the Latvian system).

These proposals for change go above and beyond the simpler solutions suggested after the 2016 election debacle, e.g. merely removing the absolute majority requirement from the last round of voting in the Riigikogu. Apart from the fact that all proposals are still at a draft stage (and include some controversial changes unrelated to the election procedure, e.g. a limitation of incumbency to a single seven-year term instead of two consecutive five-year terms), there are still some hurdles facing their implementation. An absolute majority of votes is necessary to the change the constitution and it is not guaranteed that the government coalition will be able to persuade the rest of the Riigikogu (including some of its own deputies) of the reform proposals. Furthermore, the presidential election law will need to amended as well. Thus, it remains to be seen whether there will be a substantive change after all or whether this will simply be another chapter in the neverending story that is presidential election reform in Estonia.

This post first appeared on presidential-power.com on 10 May 2018

Hungary – Legislative vetoes by president Áder: Irrelevant activism?

There is no doubt that Hungarian president Janos Áder is a close ally and supporter of Prime Minister Viktor Orbán and his illiberal politics. Interestingly, however, he has used and continues to use his legislative veto power with surprising frequency. Overall, this runs counter to existing explanatory approaches and might thereby shed new light on the functioning of Hungary’s illiberal democracy.

Hungarian president Janos Áder – image via wikimedia commons

When Janos Áder was elected president, he promised to depart from the rubber stamp-attitude to legislation exhibited by his co-partisan precedessor Pál Schmitt (who not only failed to use his veto power during his two years in office, but has also publicly declared he would sign every bill the Fidesz majority in parliament passed). Opposition politicians welcomed (albeit cautiously) his declaration that if parliament passed a hundred good bills he would all sign them into law but if parliament passed a hundred bad bills he would use his veto against all of them. Nevertheless, given that the Hungarian president’s veto can be overridden by simple majority (unless the original bill required a higher majority to be passed, e.g. organic law) and presidents are obliged to sign bills that were passed again (even if changes were introduced during the veto/reconsideration process), it was clear that such activism would need to be amplified by use of the personal ties between Áder and his long-time friend Orbán.

Already early on in his first term, Janos Áder seemed to follow through on his promise – in his first year in office alone, he sent 11 bills back to parliament for reconsideration. Even his predecessor Lászlo Sólyom, who found himself in cohabitation with all governments during his five year-term in office and vetoed almost frantically in comparison to his own predecessors, took almost three years to veto as many bills. Although clearly in friendly relations with the government and parliamentary majority, Áder had vetoed 28 bills by the end of his first term last year (only four less than Sólyom who – as mentioned above – was in cohabitation the whole time) and vetoed three more since his re-election.

These number may not be high in comparison to other presidents in the region, particularly those elected by popular vote, yet they present a challenge to established explanations of presidential activism that others and myself have proposed. If presidential activism is primarily determined by the institutional structure (most prominently direct/indirect elections) and the political environment (the partisan composition and strength of parliament and government vis-a-vis the presidency), we should see comparatively fewer vetoes in the case of Janos Áder.

Additional explanatory variables that I found to be important in the case of president Lászlo Sólyom (2005-2010) also do not seem to apply here. For once, there is no personal antipathy between president and prime minister and more than two thirds of bills vetoed were prepared by ministries (i.e. not private members bills which have typically been of lower quality). Furthermore, after the government initially incorporated changes proposed by Áder into bills as part of the review process, all 12 vetoes issued since the 2014 parliamentary elections were overridden. Thus, presidential vetoes are not (or are no longer) an easy way to let the government fix problems with bills that were previously overlooked.

At the same time, Áder’s veto activity does also not quite fit into the pattern (if one can speak of such) of democratic window-dressing in the Polish case. Despite international outcry and serious flaws in bills Áder has not used his veto to stop (at least temporarily) the crackdown on public media, the ‘Lex CEU‘ or legislation that benefitted Fidesz politicians and their associates in other ways. While he used his veto on a number of other bills that were controversially discussed domestically, his opposition appears to be lacking in enthusiasm.

Thus, Áder’s use of presidential vetoes remains somewhat enigmatic. The fact that neither existing explanatory approaches nor the logic of presidential activism visible in other regimes can account for it should prompt a re-examination of how we imagine the functioning of Hungary’s illiberal democracy. Áder’s (ostensibly) irrelevant activism could point towards a further concentration of power in the hands of the prime minister and/or to the fact that his actions are directed towards other constituencies that have yet to be uncovered.

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A full list of presidential vetoes in Hungary is available here (in Hungarian).

This post first appeared on presidential-power.com on 15 March 2018

Poland – Is the presidency going down the Hungarian path?

Over the last years, I have chronicled (and lamented) the descent of the Hungarian presidency  during the Orbán government from promising check-and-balance into political irrelevance. After an initial phase of constructive presidential activism in which incumbent Janos Áder used his powers in an attempt to improve legislation, he subsequently failed to criticise any of the government’s controversial reforms and used his veto power and right to request judicial review on fewer and fewer occasions. Three years after the election of a Law and Justice (PiS) president and government in Poland, it appears that the Polish presidency is going down the Hungarian path. Despite the added legitimacy and independence through a direct electoral mandate, president Andrzej Duda has done little to balance the increasingly illiberal policies of the government. Although he has not remained entirely inactive, his activism is geared towards re-election and democratic window-dressing, rather than becoming a real check-and-balance.

Photo via prezydent.pl

When the 42 year-old MEP Andrzej Duda was elected president in May 2015, it was easy to portray him as little more than a puppet of PiS party leader Jaroslaw Kaczynski. After the parliamentary election in the autumn of the same year produced an absolute majority for PiS (for which Kaczynski has as of yet not taken an official seat on the front bench), Duda was complicit in the unconstitutional appointment of several judges to the Constitutional Tribunal (having previously refused to swear in judges that had been originally – and legally – appointed) and failed to step in when the government subsequently refused to publish the Tribunal’s judgement on the unconstitutionality of these actions. Up until last summer, president Duda failed to condemn any of the reforms of the Polish government, which resulted in the European Union’s decision to trigger Article 7 (a formal warning an possibility of disciplinary procedures) in December 2017.

In July 2017 president Duda vetoed two controversial judicial reforms that would have given the government near complete control over the judiciary. Nevertheless, as I argued at the time, the vetoes were little more than democratic window-dressing and inevitable due to national and international pressure after it emerged that the Senate had passed bills in different versions than the lower chamber. Duda’s vetoes caused friction with the PiS government and then Prime Minister Beata Szydlo as well as a number of other co-partisans accused him of hampering ‚improvements’ to the country’s legal system. Nevertheless, it is without question that these reforms will reappear in other forms and Duda will sign them off. The vetoes can merely be seem as an attempt to ‚save face‘ and means to appease critical voters in a bid to secure re-election in 2020.

President Duda’s signature under the so-called Holocaust bill, a law that seeks to punish those who accuse Poland or Poles of complicity in the mass extermination of jews during WWII with up to three years in prison, shows the same pattern of self-interested activism. Duda signed the bill into law but also submitted the bill to the Constitutional Tribunal at the same time. Signing the bill will appease not only the core electorate of PiS but also a the majority of Poles who rightly object to the phrase ‘Polish death camps‘ that is still frequently used to label Nazi concentration camps in occupied Poland (the country’s embassies still regularly intervene when the phrase is used in the media). Simultaneously sending the law to the Constitutional Tribunal should be seen as a signal to those voters who fear a limitation of free speech. Nevertheless, a decision from the Tribunal could take 1-2 years and with the law in force, the government can already use it to silence its critics – after the cleansing of public media from critical journalists, it becomes another tool to suppress free speech. Interestingly, the same tactic was used by president Lech Kaczynski (the twin brother of party leader and then Prime Minister Jaroslaw) during the PiS governments in 2005-2007 with the exception that the Constitutional Tribunal was not yet staffed with loyal judges (who are unlikely to pronounce the law unconstitutional).

Thus, it appears that the Polish presidency is going down the Hungarian path, albeit with some variation. As Andrzej Duda needs public support to secure his re-election in 2020 he is more active (or at least more visibly) than his Hungarian colleague. Given the greater international attention paid to the situation in Poland compared to the one in Hungary (where the EU clearly failed to step in in time) and stronger domestic opposition, Duda also needs to be active to appease international and national critics. However, overall the Polish presidency is currently failing at its job as a check-and-balance on parliament and government. An altered parliamentary composition following the 2019 legislative elections or even a second term for Duda in 2020 may change the situation, yet for now we may need to declare a ‘presidency lost‘.

This post first appeared on presidential-power.com on 15 February 2018