Czech Republic – National and international dimensions of president Zeman’s controversies

This post first appeared on presidential-power.com on 3 November 2016

Czech president Milos Zeman has not shied away from controversy since taking office in spring 2013. Starting with the appointment of the Rusnok government which lacked support in parliament from the start and threatening interference in the formation of the current government, Zeman has drawn criticism for expletive-laden radio interviews, his support for Vladimir Putin and his comments on the refugee crisis. Especially the latter has put an international spotlight on the president so that gaffes and conflicts with the government increasingly create not only national controversies but also international repercussions.

Czech president Milos Zeman | photo via hrad.cz

Czech president Milos Zeman | photo via hrad.cz

President Zeman has long been a vocal opponent to accepting any of the refugees who have been coming into Europe during the last years. Although he is not alone in his general position among the presidents of the Visegrad group (Czech Republic, Hungary, Poland and Slovakia), his recent proposal to send refugees to uninhabited Greek islands and send back all s-called ‘economic migrants’ was met with such international backlash that the Czech foreign minister saw itself forced to publicly state that these remarks did not represent the country’s policy.

Zeman has so far largely ignored the constitutional provisions and practice that put the government, rather than the president, in charge of foreign policy and has shown little tact on both the national and international stage. In a latest gaffe, Zeman prematurely announced Hynek Kmonicek as the new Czech ambassador to the United States. Kmonicek, who currently still serves as Zeman’s foreign policy advisor, had however not been approved by the United States yet. Zeman is already engaged in a personal feud with the US ambassador to the Czech Republic, Robert Shapiro, since Shapiro criticised the president’s pro-Putin stance (Zeman subsequently failed to invite the ambassador to a number of events at the presidential palace). Given that the current administration also disapproves of Zeman’s blanket criticism of the EU and most likely does not look favourably upon his openly voiced support for presidential candidates Donald Trump in the US and far-right Norbert Hofer in Austria, the president’s actions have put the entire appointment process in jeopardy. Zeman similarly revealed the name of yet another of his aides poised to become ambassador (Jindrich Forejt as Czech representative in the Vatican; yet given the Czech Republic’s reputation as [one of] the most atheist country in Europe this caused less friction internationally).

In another controversy, Zeman decided not to award a medal to Holocaust survivor and remembrance campaigner George Brady after his nephew, Culture Minister Daniel Herman, met with the Dalai Lama. The official position of the Czech Republic is to accept China’s claims on Tibet, but no punitive action has ever been taken against public officials who met with the Tibetan leader. Zeman on the other hand, has been an avid support of Chinese investment in the country and seems to have taken matters into his own hands after he was unsatisfied with the government’s response – in fact, it was the presidential office that released a statement distancing the government from minister Herman – who Zeman had previously personally requested not to meet with the Dalai Lama.

Both the (potential) appointment of a Zeman allies to ambassadorial positions and the passivity in the Dalai Lama-episode highlights that the government does not possess the power to curb the president’s activism. After a slump in public opinion in late 2014, the Zeman has once again gained in popularity (not the least due to his populist stance in the refugee crisis) while the government’s support has been stagnant. Furthermore, a survey showed that following losses in local elections, many members of the main governing party CSSD look to Zeman (who was its chairman 1993-2001) for leadership rather than to Prime Minister Sobotka. Nevertheless, until now Zeman’s support base in the party is limited to grassroots members, rather than members of parliament so that his influence is still limited to some degree. Yet particularly looking forward to the next parliamentary elections in 2017 (to be held half a year before Zeman’s first term in office runs out) and the taking into account that Zeman has no official partisan representation in parliament, attempts to influence CSSD policy and strategy may increase and Zeman could try to use his popularity with CSSD members as leverage to assume an unofficial co-leadership role in the future and make sure the party supports his re-election bid in 2018.

Estonia – Parliament elects first female president following electoral college failure

This post first appeared on presidential-power.com on 4 October 2016

On Monday, 3 October, the Estonian Riigikogu elected Kersti Kaljulaid as the country’s new and first female president. Kaljulaid’s election comes after both parliament’s and subsequently the electoral college’s failure to elect a candidate with the required majority. Kaljulaid, although supported by five out of six parliamentary parties, entered the race as a dark horse – it is yet unclear how she will fill her new role but the long way to her election is likely to prompt a change to the mode of presidential election in Estonia.

Estonian president-elect Kersti Kaljulaid | photo via riigikogu.ee

Estonian president-elect Kersti Kaljulaid (centre)| photo via riigikogu.ee

The failure of both parliament and electoral college to elect a president in five rounds of voting was an unprecedented event in Estonian political history. Politicians from all parties – having faced wide-spread criticism over their inability to agree on a candidate – were quick to call for a joint, preferably non-partisan candidate to end the election fiasco. The Riigikogu Council of Elders (meeting of the six party faction leaders) was unofficially tasked with finding a new president (all previous six candidates were considered ‘burned’ through the unsuccessful election process) and soon narrowed down their selection to two people: Kersti Kaljulaid, former Estonian Auditor at the European Court of Auditors and one-time economic adviser to the Prime Minister, and Jüri Luik, the Estonian ambassador to Russia and a former minister of foreign affairs and defence. Eventually, the Council endorsed Kaljulaid and five of the six parliamentary groups followed by expressing support. Overall, 90 out of 101 MPs signed Kaljulaid’s nomination form – the eleven MPs refusing to sign being all seven deputies of the Conservative People’s Party (ERKE) and four Centre Party deputies. As a candidate needs 21 signatures from MPs to be nominated and an MP cannot support two nominations at the same time, no other candidate was nominated. In the end, Kaljulaid was elected with 81 votes and 17 abstentions (three MPs did not attend the vote). While this is lower than the number of MPs who supported her nomination, it is technically the strongest mandate given to a president so far – Toomas Hendrik Ilves was re-elected in 2011 with 72. However, Ilves was elected in the first round of voting in parliament.

Kaljulaid is still largely unknown to the Estonian public as she has not held any front-line role in politics so far. Other than her two last predecessors who were party members when they were elected, she is non-partisan (according to the state broadcaster ERR she was nevertheless a member of the predecessor of the Pro Patria and Res Publica Union – IRL – in 2001-2004). In the run-up to yesterday’s election, it also emerged that she had been approached about a potential candidacy for president over the summer but declined. Her political views are generally considered to be liberal on social matters and more conservative economically, yet do not clearly align with any political party. In her first interview after her election, Kaljulaid stressed her commitment to equal treatment of Estonia’s sizeable number of ethnic Russians as well as her support for upholding economic sanctions against Russia. Previously, she also mentioned issues such as the gender pay gap and women’s role in society as well as corruption as issues she would like to address. While she has acknowledged the Estonian presidency’s limited formal powers and direct influence over day-to-day policy-making, Kaljulaid is unlikely to be a comfortable president for government and opposition parties alike. Her eloquence and outsider status will likely help her to quickly garner greater public recognition and support so that she can effectively use speeches and other non-formal ways of activism to become an active check-and-balance vis-a-vis other institutions. This becomes even more a possibility given the overall similarity of her election to that of Latvian president Vaira Vike-Freiberga in 1999 – first presented as a compromise candidate after several failed rounds of election, the non-partisan Vike-Freiberga who also lacked significant political experience (she was previously a psychology professor in Canada) soon became arguably one of the most prominent politicians in the country.

Irrespective of how Kaljulaid will interpret her new role once she is inaugurated on 10 October, the long way towards her election will have consequences for how Estonian presidents are election. Before her election on Monday, 31 MPs presented a motion to speaker Eiki Nestor to introduce popular presidential elections. Such initiatives – the last one was submitted by the Centre Party in 2013 and subsequently rejected – are however unlikely to succeed. A more likely solution will be to lower the majority required in the last round of election in the electoral college (i.e. a relative rather than an absolute majority) which is already common practice in most other parliamentary republics (e.g. Germany or Hungary). The electoral college itself could also be reformed and potentially reduced to give parties greater planning certainty or at least establish a parity between parliamentary and local council representatives. Nevertheless, for now it appears that there is no cross-party consensus on the matter and a solution might very well only come after the parliamentary election of 2019 where the presidential election debacle of 2016 will surely feature in campaigns.

Estonia – Politicians enter uncharted waters as electoral college fails to elect new president

This post first appeared on presidential-power.com on 27 September 2016

On Saturday 24 September, Estonia entered yet uncharted waters as the electoral college – following three unsuccessful votes in parliament – failed to elect a president. The term of president Toomas Hendrik Ilves, first elected in 2006 and re-elected in 2011, ends on 8 October 2016, so that politicians need to act fast if they want to find a successor in time. As voting now returns to parliament, deputies continue to face the difficulty of finding a candidate that appeals beyond individual parties.

The Estonia Kontserdisaal - meeting place of the Estonian electoral college | photo via visittallinn.ee

The Estonia Kontserdisaal – meeting place of the Estonian electoral college | photo via visittallinn.ee

Estonia is one of the many parliamentary democracies which have chosen to elect their president indirectly. The first democratic presidential election following the country’s independence from the Soviet Union in 1992 was still held under a special system in which the first round was held by popular vote and a runoff between the front-runners took place in parliament. Since 1996 however, the president is elected entirely indirectly. The first three rounds of voting are held in parliament and a candidate needs an absolute majority of 68 votes (i.e. 2/3 of members) in any round to be elected outright. If no candidate is elected during the first two rounds, a runoff is held between the front-runners of the second round, yet the majority requirement remains. If parliament fails to elect a president, the vote passes to an electoral college consisting of all 101 members of parliament and currently 234 representatives of local government councils (the number of electors is based on the size of the municipality and thus varies, yet only few municipalities send more than one elector). In the electoral college, candidates need an absolute majority to be elected; while the participants of the last round in parliament enter the voting in the electoral college automatically, new candidates can also be nominated. If no candidate achieves a majority in the first round, the second round (fifth round overall) is a runoff between the two front-runners.

In the 4 presidential elections between 1996 and 2011 it was necessary to convene the electoral college on all but one occasion (i.e. the re-election of presidents Ilves) as parliament regularly failed to elect a candidate. In 1996 and 2001, the electoral college needed two rounds to elect a new president and only in 2006 a single round was sufficient. The current situation in Estonia is thus both unprecedented and unexpected.

estonian-presidential-election-results-2016_rounds-1-to-5

The first two rounds of voting in parliament were very much dominated by the tactics of two of the governing parties. The Social Democrats (SDE) had very much hoped that Prime Minister Taavi Rõivas (Reform Party – RE) would concede the presidency to them (as the RE had done in the case of president Ilves who was a SDE member at the time of his election). Nevertheless, despite the chance of nominating non-partisan foreign secretary Marina Kaljurand who enjoyed great public support, RE leadership eventually decided to only support SDE candidate, veteran politician and speaker Eiki Nestor, for the first and round and then put forward former Prime Minister and EU commissioner Siim Kallas in the second round, calling on solidarity from its coalition partner. Kallas had already been set to become Prime Minister instead of Rõivas after the resignation of Andrus Ansip in 2014 but withdrew following allegations concerning his time as director of the Estonian Central Bank in the 1990s. It thus seems that Rõivas’ support for Kallas’ candidacy is thus a way to install him in another high-ranking political post – particularly because it was not fully supported by all RE deputies. The third coalition party, Pro Patria and Res Publica (IRL), on the other hand decided to support former Chancellor of Justice Allar Jõks (non-partisan) together with the conservative Free Party (EV). The Centre Party (KE) – the first party to agree on a candidate – somewhat suprisingly did not nominate long-time party leader Edgar Savisaar but its deputy leader and former minister of education Mailis Reps (who is part of a competing faction within the party). While the Conservative People’s Party (ERKE) designated their leader Mart Helme as their candidate, they failed to gather a sufficient number of MPs to support him.

As expected, parties failed to unite in support for any candidate and the number of abstentions and spoiled ballots is very telling – several RE deputies seem to have refrained from supporting SDE candidate Nestor in the first round and Siim Kallas only gained 45 votes (the combined seat share of RE and SDE) in the second round. Very much counting on a transferal of the vote to the electoral college a third of all deputies abstained from voting in the third round of voting making it impossible for either Reps or Kallas to be elected.

seat-distribution-in-the-estonian-electoral-college

The vote in the electoral college brought a number of uncertainties for established parties. First and foremost, almost one third of the 335 electors and thus about half of the local government representatives are not members of parties represented in parliament but were elected on the basis of local/independent electoral lists of varying ideological leaning and coherence. The second uncertainty was created by foreign secretary Marina Kaljurand’s decision to resign from her cabinet post and run for president. Having topped public opinion polls for weeks the decision was a strategically excellent move, yet presented a surprise for public and parties alike. In a poll conducted by public broadcaster ERR, Kaljurand had a narrow lead over other candidates among electors and was thus tipped as one of the favourites who likely to go head to head with Siim Kallas in the second round of voting in the electoral college. Several MPs of other parties (including EKRE) had come out in support for Kaljurand’s candidacy and the SDE decided to support her too instead of nominating Nestor again, increasing her chances even more. Third, in contrast to previous elections a third candidate from the rounds in parliament was renominated – Allar Jõks once again received support from IRL and EV meaning that there was another non-partisan candidate with potentially wider appeal in addition to Kaljurand.

These uncertainties produced a surprising result: four of the five candidates (the EKRE finally managed to get enough supporters to nominate Mart Helme) received almost equal support with only 6 votes difference separating front-runner Kallas and the unexpectedly third-placed Kaljurand. KE candidate Mailis Reps on the other hand did surprisingly well with a strong third place even though it was rumoured that party leader Savisaar had tried to convince fellow party members to vote for Kaljurand instead (a move that shows the great divide between the factions led by Savisaar and Kaljurand within the KE). The second round was then held as a runoff between Kallas and Jõks, yet the college eventually failed to elect a new president. Both fell 30 and 34 votes, respectively, short of the required absolute majority. Electors were apparently surprised by the fact that Jõks and not Kaljurand entered the runoff – the high number of blank ballots (60 + 3 invalid votes) shows both their general dissatisfaction with the choices but also the fact that political competition in Estonia, which has been dominated by the Reform Party for the past decade, is changing. New parties have already entered parliament in the last election and current polls see KE and RE head to head – it is not out of the question that the presidential election fiasco will have consequences for the government and end Rõivas’ premiership or party leadership. An additional factor which played out in the electoral college might be the fact that the local administration reform – which will mean that municipalities are merged and therefore must also trigger a change in the presidential election law – is still contested was far from favourably received. The support from primarily local representatives for non-partisan candidates Kaljurand and Jõks as well as the high number of blank ballots could – if they in fact came from local electors – be a protest against the reform bill.

Parliament will reconvene on 3 October to elect a new president and while it is yet unclear who will run for president, politicians and experts agree that all previous candidates are now metaphorically ‘burned’ and new faces are needed if parties want to save face. In case parties fail to elect a president by the end of Ilves term, this will trigger one of the most complicated stipulations for acting presidents in existence: Speaker Eiki Nestor will take over duties as acting president. For this time, however, he will have to give up both the position of speaker and his seat in parliament – subsequently a replacement deputy must be appointed and sworn in and a new speaker must be elected who will then preside over the next rounds of presidential elections. Irrespective of when a new president is elected, a reform of the presidential election law is now inevitable and will invite calls for a popular election of the president once again.

Germany – The headache of choosing a presidential candidate

This post first appeared on presidential-power.com on 26 July 2016

When German Federal President Joachim Gauck declared that he would not run for a second term in February 2017, The Guardian described it as a ‘headache for Merkel‘. Gauck, a former Lutheran pastor best known for his work in overseeing the extensive archives of the former East German secret police 1991-2000, had been elected as a joint candidate of Merkel’s Christian Democrats, the Social Democrats, Green Party and Liberal Democrats (FDP) after his predecessor Christian Wulff resigned amidst allegations of corruption. Many had hoped that Gauck – who still enjoys support from all major parties in the Bundestag except DIE LINKE (successor to the East German communist party) – would run for a second term, thus sparing parties the need to find a new candidate so closely before the next general election due to be held in October 2017. Avoiding a signalling effect for potential post-election coalitions, together with parties’ desire to have their candidate elected by absolute majority in the first or second round (rather than by relative majority in the third and last round of voting) complicates the situation and creates headaches for all party leaders – not only for Chancellor Angela Merkel.

German Federal Convention

The German Federal Convention 2012 meeting in the Reichstag building, Berlin | © bundespraesident.de

Since 2013, Christian Democrats (CDU/CSU) and Social Democrats (SPD) hold a 71% majority in the Bundestag and form a grand coalition. Even though the Federal Convention – the electoral college convened for electing the German president – consists not only of members of the Bundestag but also the same number of delegates from state parliaments, both parties would have no problems to elect a joint candidate. Nevertheless, neither CDU/CSU nor SPD see this as an ideal option. With the exception of Joachim Gauck, first nominated by SPD and Greens in 2010, both parties have not nominated a joint candidate so far (rather, either party occasionally supported the re-election of the other’s incumbent). This time, too, both parties would most likely be happiest with a candidate clearly affiliated with or at least nominated only by them (not excluding support from a minor party). Nevertheless, the seat distribution the Federal Convention (see projection below) leaves little room for manoeuvre if parties want to see their candidate elected in the first two rounds. Neither CDU/CSU+FPD nor SPD+GREENS, who previously held majorities in the Federal Conventions and subsequently saw their candidates elected, hold a majority. Even a left-wing alliance of SPD, GREENS, DIE LINKE and the SSW (Danish Minority) would fall two votes short of an absolute majority.

German parties are generally cautious about who to support in the Federal Convention as the coalition patterns are seen as indicative of future coalitions on the federal level. Thus, a cooperation of the SPD with far-left party DIE LINKE is unlikely because the SPD leadership has so far categorically denied federal-level coalition potential (despite cooperating with DIE LINKE on state level) – not only could it deter SPD voters, but the CDU/CSU would also likely try to use this pairing for their advantage in the electoral campaign. Similarly, the liberal FDP – although having been in coalitions with the SPD in the past – will likely try to avoid supporting a left-wing candidacy as it hopes to re-enter the Bundestag in 2017 by taking away voters from the right-wing/populist Alternative for Germany. Last, the often-floated option of cooperation between CDU/CSU and Greens is out of the question for similar reasons. Overall, a compromise candidate elected by CDU/CSU+SPD thus seems most likely.

Projection_Seat distribution in the German Federal Convention 2016

1260 seats total; 631 votes required in first and second round, relative majority in third and final round; for more information see http://www.wahlrecht.de/lexikon/bundesversammlung.html

Analysts have highlighted over the last months that parties, particularly the CDU/CSU, would like to see a ‘professional politician’ in the presidential office – although Joachim Gauck has not opposed the government in a major way, some MPs have criticised him for contradicting government positions and even went so far as to investigate means to ‘muzzle’ the president. The CDU/CSU also still lament the resignation of Horst Köhler in 2010 following public criticism of his statements regarding German military deployment which was put down party due to him not having a sufficiently think skin to withstand conflicts of this kind. Foreign Secretary Frank-Walter Steinmeier (SPD) has been mentioned most consistently (even before Gauck’s announcement) as a potential candidate. Despite having been the SPD’s candidate for Chancellor in 2009 and serving as deputy party chairman, he is seen as a relatively party-neutral choice – the fact that he is by far the most popular German politican (71% approval) adds to his suitability. Interestingly, the second most popular politician, veteran politician and finance minister Wolfgang Schäuble (CDU), is also frequently named as a potential candidate. Nevertheless, his hard line on Greek state debt makes him less presentable on an international level. Also, Schäuble is already 73 years old would thus also likely be unavailable for a second term in office. Defence minister Ursula von der Leyen (CDU) has a number of supporters across the political spectrum, yet is likely more keen to succeed Angela Merkel as Chancellor than become Germany’s first female president. Last, some social democrats have suggested social science professor Jutta Allmendinger (SPD member), director of the prestigious Berlin Social Science Centre, as a candidate. Nevertheless, the SPD previously failed to see a similar candidate elected on two occasions. On suggestion of then Chancellor Gerhard Schröder, the SPD nominated professor Gesine Schwan, president of the Viadrina European University in Frankfurt (Oder), for president in 2005 and 2009. Nevertheless, she failed to win and was involved in a number of controversies resulting in several SPD and Green electors refusing to cast their vote for her.

Until now, only the Free Voters – represented only in the state parliament of Bavaria and projected to send a mere 10 electors to Berlin next February – have officially nominated a candidate: Alexander Hold, a judge who gained national prominence by appearing in court room shows on German private TV station SAT 1, currently serving a local councillor and party faction leader for the Free Voters in the town of Kempten. There is little chance that Hold will gain more than the 10 votes of his party colleagues, but the nomination has already produced some headlines which might benefit the party. It would not be the first time that a party nominates a candidate know for their work on TV – in 2009 DIE LINKE nominated actor Peter Sodann as their candidate for president (he received 91 votes – two more than the total number of DIE LINKE delegates – in the first and only round of elections).

The race for president thus still remains open. In contrast to Estonia – where political leaders find themselves in a similar situation – however, there is still sufficient time for parties to find a candidate. On the other hand, a timely decision could mitigate the election’s signalling effect for the next Bundestag election and give parties more time to focus on their campaign. It is without question that all of them do not want to live with a headache for too long.

Estonia – Six weeks before the presidential elections, there is no clear front-runner

This post first appeared on presidential-power.com on 19 July 2016

The date for Estonia’s next presidential election has been set for 29 August 2016, with 24 September determined as a possible follow-up date should voting in parliament prove inconclusive. Incumbent Toomas Hendrik Ilves is not allowed to run again, having served two consecutive terms from 2006-2011 and 2011-2016. Over the last year, a field of potential candidates has blossomed, yet until now the it is still difficult to tell the wheat from the weeds or to speculate who will become Ilves’ successor.

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

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

The Estonian president is elected by parliament and except for the 1992 election – when the first round was exceptionally held by popular vote with a runoff held in parliament – parliament has three attempts to elect a candidate with a two-thirds majority of its members, i.e. 68 out of 101 members. If parliament fails to elect a candidate, the election passes on to an electoral college consisting of all members of parliament and roughly two-and-a-half times as many representatives from local parliaments and city councils (the number of representatives is based on population size – in 2016 there will be 234 local representatives). In the electoral college, only an absolute majority is necessary to elect a candidate in two rounds of voting. New candidates can be suggested in the first and second round of voting in parliament and in the first round of voting in the electoral college, making it possible for surprise candidates to emerge (and in the case of Arnold Rüütel, president 2001-2006, even win) at a relative late stage.

Parties, candidates and the public

Until now, there is only one confirmed candidate for the presidency: The Centre Party has nominated Mailis Reps, a 41-year old former minister of education and deputy chairman of the party who supports popular presidential elections. Interestingly, Reps beat long-time party leader and one-time Prime Minister Edgar Savisaar in the party internal ballot for the nomination by a 90:78 margin. The Centre Party however remains an outcast in the Estonian parliament – despite its continuous electoral success – and is eyed with suspicion by other parties due to its close links with the Russian minority and contacts to Vladimir Putin’s ‘United Russia’. Thus, it is unlikely that Reps will eventually take the presidency.

The names of several other candidates have been mentioned over the last year, yet as 21 members of parliament are needed to receive a nomination, only the Reform Party of Prime Minister Taavi Roivas would be able to formally nominate another candidate of their own accord (the internal nomination of Mart Helme by the ‘Conservative People’s Party’ which holds only seven seats in the Riigikogu is thus largely inconsequential). Roivas on the other hand will likely not try to claim the presidential office for his own party but give it to either of the junior coalition partners, the Social Democrats or the Pro Patria and Res Publica Union. The Social Democrats have informally nominated Riigikogu speaker and veteran politician Eiki Nestor as their own candidate, while the Pro Patria and Res Publica Union want to put forward former Chancellor of Justice, Allar Jõks. Public opinion however still complicates the situation for the coalition. Despite having never been formally nominated or endorsed, foreign secretary Marina Kaljurand (independent; nominated to the cabinet by the Reform Party) has topped opinion polls for months as the public’s preferred president. Former Prime Minister and EU Commissioner as well as Reform Party co-founder Siim Kallas has also declared his willingness to be a presidential candidate but has not received any endorsement from the party so far. A joint candidate of Reform Party, Social Democrats and Pro Patria and Res Publica seems to be the most likely outcome of the election, yet it will likely only be decided in the electoral college (until now, Ilves’ reelection in 2011 was the only time that the Riigikogu elected a president without the help of the college).

Marina Kaljurand (middle) with Prime Minister Taavi Roivas (l.) and president Toomas Hendrik Ilves (r.) | © president.ee

Marina Kaljurand (middle) with Prime Minister Taavi Roivas (l.) and president Toomas Hendrik Ilves (r.) | © president.ee

The future of the presidency: Popular elections unlikely

President Ilves, although not always unequivocally liked by parties and citizens, leaves large foot steps to follow. He is an internationally renowned expert of cyber security and as a former foreign minister and ambassador to the United States brought a great deal of diplomatic skill to the role which helped him to make the country considerably more visible. The discussion about a future president is very much influenced by that role, with Prime Minister Roivas and others stressing that any potential candidate would need to have international experience and know their way around issue of foreign and defence policy (especially the latter has been rising in importance for the small Baltic nation in the wake of the Ukraine crisis and disputes with Russia over borders). In turn, Mailis Reps, who already as a education minister was criticised for lack of experience, has little to offer in this regard and thus stressed that in her view the president should be more active in domestic politics – a view not shared by the majority of politicians and very much counter to the development of constitutional practice over the last 20 years as my own research showed. Reps proposal to introduce popular presidential elections, a change equally favoured by Mart Helme of the ‘Conservative People’s Party’ is thus also unlikely to be implemented – previous projects for constitutional amendments proposed by the Centre Party as well as the first presidents, Lennart Meri, were all unsuccessful.

Czech Republic – President Zeman and the ‘Czexit’ referendum question

This post first appeared on presidential-power.com on 12 July 2016

The result of the ‘Brexit’ referendum in the United Kingdom on 23 June has created waves across and beyond the British Isles and the European continent. As many still tried to come to terms with the UK’s (almost) inevitable withdrawal from the European Union, several representatives of populist and fringe parties across Europe already called for similar ‘exit’ referenda for their own countries. The Czech Republic is particularly interesting in this regard as it was Prime Minister Bohuslav Sobotka who was first credited with floating the possibility of a ‘Czexit’ in February this year but then publicly distanced himself from the possibility. Now, president Miloš Zeman has reignited the debate by calling for a public vote on EU (and NATO) membership of the country.

President Miloš Zeman (left) meets Martin Schulz, president of the European Parliament | © hrad.cz

President Miloš Zeman (left) meets Martin Schulz, president of the European Parliament | © 2013 by hrad.cz

The UK referendum on EU membership has given rise to many calls for a similar votes in other countries. Far-right and populist leaders and presidential hopefuls, such as Marine Le Pen, have already called for a ‘Frexit‘ referendum in France and other variations of ‘-xit’ referenda in their countries. Although the anti-EU sentiment is most strongly represented in parties of the (far) right, demand for referenda has also come from the left and ideologically less defined populist actors, most prominently from Czech president Milos Zeman.

Shortly after the results of the UK vote broke, Zeman declared that – although in favour of EU membership – he would do everything for citizens feeling otherwise ‘to express themselves’, also with regard to NATO membership (a demand already made in February 2016 but quickly forgotten). Support for EU membership and trust in the EU institutions in the Czech Republic tends to be below average in comparison to other member states, yet is far from ranking lowest in the table. In the last year, criticism of and dissatisfaction with the EU has primarily been associated with the refugee crisis and the EU’s decision to impose quotas on its member states. The populist movement ‘Dawn’ recently submitted a motion to debate the possibility of a Czexit referendum in parliament and the election of an MEP of the eurosceptic fringe Party of Free Citizens (SSO) in 2014 indicates that there is a part of the electorate that responds to anti-EU rhetoric.

Nevertheless, the Czech president does not possess any power to call referenda at will (a power reserved for only few presidents around the world) – the Czech constitution also only mentions referenda in a clause inserted to allow for the EU accession referendum in 2003 (in which case a special organic law was passed to allow for the referendum – the only one held in the Czech Republic to date). Furthermore, the government has made it clear that it opposes any public vote on EU membership. A Czexit or even a referendum on the Czech Republic leaving the European Union thus seems unlikely. Nevertheless,  EU membership (and to a lesser degree NATO) membership presents a political cleavage which could be successfully mobilised in the upcoming parliamentary and presidential elections (2017 and 2018, respectively), particularly in conjunction with the refugee crisis. After Zeman’s approval had dropped sharply a year ago due to his position in the Ukraine crisis and a series of gaffes, his ratings have since improved and stabilised once again around 57-58% over the last months. By calling for a EU referendum yet supporting membership at the same time, Zeman could thus try to dance at two weddings at once – attract Eurosceptic voters (who will probably vote for a fringe candidate in the first round but could prove decisive in a potential runoff) while not losing too many mainstream voters.

The do-over the Austrian presidential election might provide a first test of how such a tactic might work out. Far-right presidential candidate Norbert Hofer initially suggested that the Austrian people should be given a say over further EU integration and in his campaign greatly benefited from anti-EU sentiment related to the refugee crisis. Following statements by his decidely pro-EU challenger, Alexander Van der Bellen (independent/Greens), last week he was however forced to acknowledge that it would disastrous for Austria if the country left the EU. In order to maintain the momentum of his campaign and keep the anti-establishment vote, Hofer must nevertheless try to balance pro- and anti-EU voters which could – if successful – provide a template for Zeman and the Czexit referendum question.

Poland – Judicial independence in jeopardy? President Duda refuses appointment of ten further judges

This post first appeared on presidential-power.com on 5 July 2016

The controversy over Poland’s constitutional court triggered by president Duda’s refusal to appoint judges nominated by the outgoing Sejm and passage of legislation to legitimise his and the new government’s behaviour has so far dominated the presidency of Andrzej Duda (for a summary see Aleks Szczerbiak’s post here). Now, Duda is once again in the line of fire following his refusal to appoint ten out of thirteen judges from lower-level courts to higher positions. Thus, although the individuals put forward by the National Judiciary Council (a committee formed of 17 judges, the minister of judges and 5 political nominees) are far from uncontroversial, the relatively unchecked power of the president in the area of judicial appointments and the government’s plan to reform the judiciary continue to be the most prominent battlefields of Polish politics today.

President Duda appoints 'his' nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

President Duda appoints ‘his’ nominee Julia Przyłębska as judge of the Constitutional Tribunal on 9 December 2015| © prezydent.pl 2015

The Polish constitution, like so many others (irrespective of this being intentional or not), remains vague on a number of presidential duties and prerogatives. Article 179 of the 1997 Constitution thus states with regard to appointments of judges that “judges are appointed by the president on the suggestion of the National Judiciary Council” but gives no further instructions on the procedures or an eventual right of the president to refuse such nominations. Constitutional scholars widely agree that presidents may refuse the nomination of any candidate for public office (irrespective of judge, professor or prime minister) on the grounds of a person’s lack of formal and legally required qualification or reasonable doubts about their loyalty to the constitution. While this generally follows from presidents’ inaugural oath to uphold and protect the constitution, the rejection of nominees for political or personal reasons arguably has no legal basis.

Duda’s refusal to appoint the judges met with particular opposition due to the lack of justification for his decision. Before being proposed candidates for judicial promotions are vetted by the National Judicial Council; if their application is denied they can appeal the decision in court. An additional vetting by the president beyond formalities thus appears not only unreasonable but also adds the complication that there is no prescribed legal way to appeal his refusal to appoint a nominee. Many conflicts over constitutional clauses along the lines of “the president appoints/signs/etc” fall into the category of conflict between two constitutional organs and can be adjudicated by the constitutional court by the ways of a standard procedure. Yet as both the National Judicial Council and the rejected nominees lack ‘organ quality’, neither of them can easily challenge the president’s decision. The latter became clear in the only other case judicial promotions at lower courts were refused by the president. In 2007 Duda’s pre-predecessor Lech Kaczynski (the deceased twin-brother of current Law and Justice party leader Jaroslaw Kaczynski), created a precedent for Duda’s actions by declining to appoint nine judges. The nominees’ constitutional complaints were eventually rejected after four years of deliberations as the justification was that the implementation of administrative law by the president does not fall within the remit of the Constitutional Court. The Supreme Administrative Court likewise rejected the complaints and subsequent further constitutional complaints were also rejected so that the case now (still) lies with the European Court of Human Rights (for a longer summary, see the report of the Helsinki foundation here).

Newspapers have speculated on the reasons which led the president to reject the nominations. In fact, some of the nominees are far from uncontroversial. One judge was prominently accused of bribery, another judge controversially dismissed a collective law suit against the financial services provider Amber Gold (which was liquidated following the discovery that is was based on a pyramid scheme), and a third was involved in the widely discussed case of restricting the “parents’ rights” of a couple accused of violence against their children. In addition, one judge was widely criticised for continuously extending the arrest of a football fan for alleged drug-dealing, yet without any verdict being issued over the course of three and a half years. Last, one of the judges whose promotion was denied judged on a case in which Law and Justice party Jaroslaw Kaczynski leader sued fellow legislator Janusz Palikot (then Civic Platform, later founder of ‘Palikot’s Movement’) for insulting him.

None of the above-mentioned controversies would generally justify denial of appointment or other presidential intervention. Thus, it is more likely that they are part of the Law and Justice government’s plan to reform and mould the judiciary in their image. Given that Duda is generally seen as little more than a vicarious agent of Law and Justice leader and Polish politics’ grey eminence (he does not hold any government office) Jaroslaw Kaczynski, it is not unreasonable to assume that the president is now helping to fulfil that plan (while at the same time extending the powers of his office). In a recent proposal made by the government (which was already widely criticised by the Human Rights Ombudsman and NGOs), the National Judiciary Council would have to propose two candidates per vacancy thus considerably increasing the president’s power over judicial nominations. This, together with the conflict over the constitutional court and the government’s decision to once again merge the position of general prosecutor with the minister of justice (the positions were separated by the predecessor government in 2008 and unsuccessfully vetoed by president Lech Kaczynski) highlights the great importance that Law and Justice attaches to judicial reform. Nevertheless, it also shows that judicial independence in Poland might increasingly come under threat – not only, but partially due to president Duda’s activism.

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See also my blog posts on similar conflicts over judicial appointment in Slovakia:
Slovakia – Continuing a legacy? President Kiska’s first 3 months in office and the battleground of judicial appointments
Slovakia – One year on, conflict over president’s refusal to appoint judges remains unsolved

Austria – Complaint against narrow runoff result might lead to partial do-over of election

This post first appeared on presidential-power.com on 16 June 2016

After Alexander Van der Bellen won the runoff with a razor-thin margin, calls for a recount and even accusations of electoral fraud from Norbert Hofer’s (FPÖ) supporters were expected. The FPÖ has now lodged a formal complaint with the Austrian Constitutional Court which could trigger a partial rerun of the second round of presidential elections. It is clear that there were some irregularities in the counting of votes and bodies on various levels failed to follow correct protocol. Unfortunately, Austria’s Ministry of Interior and the respective state electoral bodies have also not done the best job in preventing the emergence of further doubts. Given that the FPÖ has yet to make public its list of suspected violations – which is said to exceed the number of previously publicised cases – it is difficult to establish what the outcome of their complaint will be. In any case, the FPÖ has already succeeded in gnawing off some of the new president’s legitimacy before he has even taken office.

The known cases of electoral violations mainly concern the counting of postal votes, idiosyncratic decisions or errors by local officials, and turnout exceeding 100%. Some of the state-level agencies started counting postal votes (which were eventually decisive for the election) too early and some others at least opened the post vote envelopes already on Sunday instead of Monday morning. Although this was against protocol, there is not indication that there was any manipulation or interference with the ballots. In another case in the town of Helfenberg, there were three ballot papers too many in the box after the end of the day even though all voters had been registered twice before casting their vote. Eventually, the local electoral commission decided to take out three invalid votes to make numbers match – while certainly unusual, this seems like a fair decision in relation to its effect on the outcome. The problem here is that the mayor ripped up the three supernumerary ballot papers – a clear violation of federal law. There was also one case where a women was unable to cast her vote due to an error on the electoral register (where she was listed as a postal voter).

More troubling is the report of the municipality Miesenbach in Lower Austria where apparently a handful of 14 and 15 year-olds where allowed to vote – the general voting age is 16. Overall, fifteen teenagers below the voting age were listed as eligible to vote of which five eventually cast a ballot. The reason seems to be that the local electoral commission mixed up the electoral register for the presidential election with the so-called ‘Wählerevidenz’, a constantly updated list based on the local resident registration database. 380 valid ballots were cast in Miesenback, 258 for Hofer and 122 for Van der Bellen, so that it didn’t have a significant impact. Nevertheless, this is a blunder that cannot be easily justified.

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

For a while the official election website showed 146.9% turnout in Waidhofen/Ybbs

Last but not least, an embarrassing error fuelled accusations of electoral fraud on the day after the election. The official election website on the pages of the Ministry of Interior showed an impossibly high turnout of 146.9% for the district Waidhofen in the city of Ybbs. A screenshot was widely shared across social media, particularly by supporters of Norbert Hofer. The Ministry later traced the error back to the state electoral commission. While the local district had submitted correct data, the state commission made an error during data entry and transmitted the incorrect data to the Ministry. Human error happens in every election but raises questions over the suitability of the IT systems used by Austrian authorities, e.g. why is there not automated checking of improbable values in the systems? In some other districts, turnout even exceeded 200% as a great number of people made use of proxy voters. In addition, the number of distributed ballot papers was slightly lower than votes received in a few more electoral districts. Nevertheless, while this may seem suspicious to international observers, this is simply due to the postal vote system in place in Austria (as well as in the Czech Republic, Slovakia and Germany). Postal voters receive their ballot paper by post and can either send it back by mail or go to any relevant polling station to cast their vote. The latter happens particularly often when people are on holiday and still want to cast their vote in person (in Germany this is limited to SMD districts).

These known cases alone should not be sufficient to trigger a partial re-run of the presidential runoff in the affected districts. However, the FPÖ claims that violations were recorded in 94 of 117 postal voting districts. Given that it was the postal votes that turned the result around and Van der Bellen eventually won with only 31,000 votes (0.6%) difference, such a claim – if it proves true – would definitely require a do-over of some sort. The Federal Returning Officer, Robert Stein, has however expressed doubts that the whole second round would be repeated. In any case, the FPÖ might have found a way to once again mobilise the anti-establishment vote that Norbert Hofer received. From the point of view of a rational observer, a ‘conspiracy’ against the FPÖ by the state (including public TV stations – one of the FPÖ’s recurrent targets during the election campaign) may be out of the question. Nevertheless, it is likely to resonate with the FPÖ’s core electorate which sees the stigmatisation of the far-right party and categorical exclusion from the federal government as an injustice and plot orchestrated by SPÖ and ÖVP. Even if the complaint is entirely unsuccessful, it casts a shadow over Van der Bellen’s election and will give additional ammunition to the FPÖ in the run-up to and after the next parliamentary elections.

Austria – Alexander Van der Bellen wins presidential runoff with razor-thin margin

This post first appeared on presidential-power.com on 24 May 2016

On Sunday, 22 May, Austrian went to the polls for the second round of presidential elections which – for the first time in Austrian history – did not include the candidates of SPÖ and ÖVP. Alexander Van der Bellen (independent/Greens) narrowly beat his opponent, Norbert Hofer (FPÖ), with a razor-thin margin of just 31,000 votes (0.6%) in a neck-and-neck race that was only decided on Monday afternoon after all postal votes had been counted. While a victory of the far-right Hofer, widely feared by international and a majority of national commentators alike, has thus been averted, the election marks without doubt a pivotal moment in Austrian politics. It spells the end of the dominance of SPÖ and ÖVP, the manifestation of ever stronger political divisions between the far-right and the remainder of the political spectrum, and seems to fall within a larger trend in support for right-wing parties and candidates in European politics.

Results of the Austrian presidential elections - Van der Bellen + Hofer

Already the results of the first round had shaken up Austrian politics. First, neither candidate of the governing parties SPÖ and ÖVP – who have dominated the Austrian presidency and government since the end of WWII – made it into the run-off. Both only polled a combined 22.4% of votes – far below their worst combined result yet. Following the election debacle and repeated calls for consequences, Chancellor Faymann (SPÖ) eventually resigned, citing a lack of support in his party. There have not been any consequences yet in the the ÖVP, yet it is likely that the party will, too, try to reinvent itself at least partially before the 2018 parliamentary elections.

Analysts were unsure of whether Van der Bellen, a veteran Green politician (though formally independent), would be able to catch up to Hofer, who serves as one of the speakers of Austria’s federal parliament. Already shortly after the exit polls for the first round had been announced, parties categorically declined to make any kind of recommendations – only the third-placed candidate Irmgard Griss (independent) indirectly came out in support for Alexander Van der Bellen shortly before the second round, saying that she had given him her (postal) vote. The campaign of the two candidates was overshadowed by their widely panned performance during an experimental TV debate in which they went head to head without any TV presenter to moderate the discussion. Regardless, voters turned out in larger numbers to the polls on Saturday – turnout increased by 4% to 72.7% (the highest value since 1998).

During the election night (or afternoon, to be precise) tensions were running high after a first exit poll suggested a victory for Hofer, yet too narrow to exceed the margin of error. Subsequently, projections quickly suggested a stalemate between candidates and it became clear that the race would only be decided after counting the postal vote on Monday. Although Hofer had the majority of votes cast in ballot offices across the country (among these Van der Bellen only received a majority in Vienna and the state of Voralberg), Van der Bellen eventually won the election thanks to an overwhelming majority 61.7% among postal votes (with 746,110 they represented 16.6% of all votes). While some commentators suggested that parties might try to challenge such a narrow victory by either candidates, Hofer acknowledged his defeat on Monday afternoon.

Van der Bellen’s election introduces an unknown intro Austrian politics which – with regard to both chancellery and presidency – has hitherto been dominated by SPÖ and ÖVP. Although Van der Bellen formally ran as an independent, he is still formally a member of the Green party (which also supported his candidacy logistically and financially). While the Green party is part of the parliamentary opposition, it would be incorrect to speak of the advent of a period of cohabitation. Despite his general opposition to the dominance of the two mainstream parties voiced during the campaign, Van der Bellen’s relationship with the government is likely to be neutral and even if not unified at least supportive. Van der Bellen will have to show some moderate activism to please his electorate and while this could be markedly more than his predecessors (who largely refrained from interference in day-to-day politics) it will be far from the dramatic steps promised by his defeated contender Hofer (who signalled he would dismiss the government and dissolve parliament).

Irrespective of the fact that Hofer lost the runoff, he – and his party – will play a much more prominent role in Austrian politics from now on. Since January this year, opinion polls see the FPÖ at 32-34% which would make them the largest party in the next federal election (on overage, SPÖ and ÖVP only poll around 22% each). Hofer’s success also seems to fit in with a larger trend of gains by far-right parties across Europe. While these have partly been able to feed on anti-immigrant sentiments amidst the influx of refugees into (Western) Europe, in Austria the success of the FPÖ also seems attributable to an anti-establishment mood which is not sufficiently and/or successfully articulated by other political parties.

Austria – Political earthquake as candidates of far-right and Greens win first round of presidential elections

This post first appeared on presidential-power.com on 26 April 2016

On Sunday, 24 April, Austrian were called to the polls for the first round of presidential elections. Norbert Hofer, candidate of the far-right Freedom Party (FPÖ), was the surprise winner with 36.4% of votes and thus 15% more than predicted by opinion polls. Hofer will now enter a run-off with Alexander Van der Bellen, a formally independent candidate supported by the Greens. Candidates of the government parties SPÖ and ÖVP which dominated Austrian federal politics since 1949 failed to make an impression on the voters and only polled a combined 22.4%, signalling a potential end to the politics of grand coalitions in Austria.

Results of the first round of presidential elections in Austria, 22 April 2016_presidential-power.com

The latest opinion polls before the election had predicted a relatively secure lead for Alexander Van der Bellen and a closer race for second place between Hofer and independent candidate Griss. Nevertheless, from the beginning of the election it was clear that Hofer had gained significantly more votes than expected and would enter the run-off while Van der Bellen and Griss would compete for second place. Although Van der Bellen eventually finished 2% ahead of Griss, her third place is still remarkable. Griss, a former president of the Austrian Supreme Court, was largely unknown to the Austrian public only a year ago and is not connected to any party (she received some indirect backing from the liberal NEOS party). Her result is also the best ever won by an independent candidate in Austrian presidential elections, surpassing previous record-holder Gertraud Knoll and her 1998 result of 13.6% by almost 2%. As expected, support for Andreas Khol (ÖVP) and Rudolf Hundstorfer (SPÖ) as candidates of the governing parties remained low and both eventually received considerably less votes than predicted. After the combined vote share of SPÖ and ÖVP candidates averaged 89% 1951-2010 and never dropped below 63.4%, their combined vote share of just 22.4% is a clear signal that voters have become tired of the parties’ political dominance. The construction entrepreneur and Viennese socialite Richard Lugner (independent), whose campaign was widely ridiculed (or least not taken seriously), only received 2.3% of the vote – 7.6% less than in his first candidacy in 1998.

votes for candidates by voters' party support in the 2013 parliamentary elections

Source: Austrian Press Agency

A look at voters’ party support in the 2013 parliamentary elections shows the reasons for the weakness of candidates of established parties and the success of others. Both Khol and Hundstorfer were not able to mobilise a significant amount of voters beyond their core electorate and many ÖVP and SPÖ voters instead turned to other candidates. Hofer’s votes, too, mainly relied on the FPÖ electorate; however, he was also able to get votes from a number of other parties. A similar picture emerges for Van der Bellen – although 46% of his votes came from voters who already voted Green in 2013, he otherwise received support from voters of almost all other parties. The distribution of 2013 preferences among the voters of Irmgard Griss underscores her appeal across the political spectrum (despite generally centre-conservative policy positions). Although votes for Lugner also came from voters of a variety of 2013 preferences, he seems to have gathered the non-constructive (because inconsequential) protest vote.

All three front-runners tried hard in their campaigns to present themselves as anti-establishment candidates. For Griss, the success of this strategy is hardly surprising as she lacks a party affiliation and clearly differed from candidates in her rhetoric. It is much more surprising that Hofer, a prominent representative of the FPÖ, was able to make the same strategy work for him. A post-election survey showed that his youth (with just 45 years he is the youngest candidate) played in his favour. Furthermore, the ostracization of his party on the federal (and international) level aided his success. Van der Bellen, too, is a veteran politician and very much part of the political establishment, yet due to the marginal position of the Greens (they have not been part of any municipal, state or federal government so far) this seems to have mattered less for his voters. Van der Bellen also managed to mobilise the greatest absolute number of previous non-voters – 84,000 voters who did not vote in 2013 came out to vote for him while Hofer and Griss only mobilised 49,000 and 44,000 respectively.

After the announcement of results, all parties and candidates who failed to advance to the second round (except Griss who is still consulting with her team) declined to make a voting recommendation for the run-off. SPÖ and ÖVP, clearly shaken by the miserable performance of its candidates, thereby appears to try and keep their options open for a (further) decline in support at the next parliamentary elections in 2018, the strengthening of the FPÖ and the resulting necessity for forming different coalition. Although the possibility of early elections was mentioned regularly during the election night, this seems generally unlikely – a major reshuffle in the cabinet and at the helm of both parties on the other hand will likely take place soon. Neither Hofer nor Van der Bellen can be sure to win the run-off and need to continue campaigning hard.

Last, both candidates promise different ways of how they will behave in office (for a slightly different assessment, see here). Although both will be in cohabitation with the SPÖ-ÖVP government, Hofer is more likely to a more active president and use the formally considerable powers of the office (which includes the right to dismiss the government at will). Particularly in the run-up to the next parliamentary elections, Hofer could try to highlight perceived failings of the coalition parties and openly campaign for his party  – something office-holders have so far refrained from doing. Although analysts highlighted last night that in the past Austrian voters were reluctant to vote for either SPÖ or ÖVP when they already nominated the president (implying a reversed tailcoat effect), the days when voters could make such strategic decisions are now over – electoral fragmentation has risen steadily over the last decade and will most likely continue to do so in 2018. In contrast to Hofer, Van der Bellen is much less likely to be active. First, the electoral potential of the Green party is limited (particularly in rural Austria) and seems to have reached a natural ceiling in the last elections when it gained 12.42%. Second, Van der Bellen is clearly opposed to a strengthening of the FPÖ. While he might decline to swear in a government after the elections that includes the far-right, he would need to be very careful not to lose too much of the ‘independent image’ created during this campaign and become the target of FPÖ’s anti-establishment campaign.