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

CCCU Expert Comment: The deterioration of Poland’s democracy

Following the announcement of Polish President Andrzej Duda to veto two bills that are part of the governments controversial plans to reform the judiciary, I wrote a brief commentary for the CCCU Expert Comment blog. You can find the whole text below:

THE DETERIORATION OF POLAND’S DEMOCRACY

Dr Philipp Köker explains that the President’s veto is unlikely to stop the deterioration of Poland’s democracy.

The Polish president, Andrzej Duda, has announced that he will veto two highly controversial bills aimed at reshaping the country’s judicial system.

At first glance, this may appear as a success for thousands of Poles who protested for weeks across the country and abroad. However, even though the president’s veto can only be overridden by a 3/5 majority in the Lower House of parliament, the veto alone is unlikely to stop the deterioration of Polish democracy.

Since taking office, the Law and Justice Party – whose leader Jarosław Kaczyński has publicly expressed his admiration for the policies of Hungarian Prime Minister Viktor Orbán – has taken it upon themselves to reshape the country’s political system by bringing state media and judiciary under their control.

Shortly after their election in 2015, their government overruled nominations for five constitutional judges that had still been made by the last parliament and later refused to publish a ruling of the Constitutional Court that demanded three of these had to be sworn in by president Duda. Yet Duda, a member of Law and Justice himself, refused.

Subsequently, the government effectively cleansed state media of critical editors and journalists who the party had long accused of biased coverage.

Since then, objective coverage and commentary has been largely absent from public channels. The reform of the judiciary, already at the heart of the party’s programme during its first government in 2005-2007, is now a further step towards an ‘illiberal state’ modelled on the Hungarian example.

One of the two bills now vetoed by the president would have given the justice minister the right to fire the heads of lower courts, while the other would have allowed the government to replace all Supreme Court judges.

President Duda has been complicit in all these changes and so far failed to provide an effective check-and-balance on the government. However, presidential action was inevitable after it emerged over the weekend that the Polish Senate had passed bills in different versions than the lower chamber. Nevertheless, the veto alone is unlikely to put a halt to the Poland’s descent into illiberalism.

The president has only temporarily halted a reform that will inevitably be implemented unless other countries stand together and oppose this attack on democracy.

The EU, which has already threatened Poland with a suspension of its voting rights, will thereby play a key role. However, individual states and their parties also have an important role to play. Although the UK is headed for Brexit, Theresa May must not be indifferent to these developments – in particular because both the Conservatives as well as the DUP have a long history of cooperation with Law and Justice in the European Parliament.

Dr Philipp Köker is Senior Research Fellow in Politics and International Relations at Canterbury Christ Church University. He is an award-winning expert on presidential politics in European democracies. His new book ‘Presidential Activism and Veto Power in Central and Eastern Europe’ has just been published with Palgrave Macmillan.

Hungary – Prime Minister Orbán re-elected, Fidesz government will hold 2/3 majority in parliament

This post first appeared on presidential-power.com on 8 April 2014

On Sunday Hungary held the first parliamentary elections since its new constitution came into force on 1 January 2012. Contrary to previous elections, the size of parliament has been reduced from 386 to 199 deputies and the elections took place under a new electoral system. As expected, the governing Fidesz-KDNP won the elections by a large margin and will (very likely) once again hold a 2/3 majority in the assembly.

Preliminary results of the Hungarian parliamentary elections, 6 April 2014 (turnout: 60.48%)preliminary results - Hungary elections 2014

From 1990 until 2010, voters elected 386 deputies using a two-tier mixed member system. In this election, the number of deputies was reduced to 199 and the run-off for single-member electoral districts (SMDs) abolished. Furthermore, for the first time Hungarian citizens living abroad were allowed to vote (albeit only for the party lists) and members of ethnic minorities could vote for their own representatives. Especially the latter was heavily criticised as registering as a minority voter prevented people from voting from the other party lists (no minority representative won a seat under the new system). The government was also accused of gerrymandering when it re-drew the boarders of the now larger SMDs – even from the otherwise ideologically largely aligned far-right party Jobbik.

According to the preliminary results – votes in one SMD are still being recounted and might costs Fidesz its 2/3 majority – Prime Minister Orbán’s Fidesz (in an electoral alliance with the Christian-Democratic KDNP) won 96 out of 106 direct mandates and 37 of 93 seats from electoral lists. The centre-left Unity alliance (MSZP-EGYUTT-DK-MLP) had struggled to come together since its inception and were thus unable to effectively campaign against the government parties – they only won 10 direct mandates and 26% of the list vote. The far-right Jobbik party which has repeatedly made headlines for their xenophobic and specifically anti-Roma rethoric could slightly improve on its 2010 electoral result yet still holds only 12% in parliament. Last, the Green Party LMP lost support and now only holds 2.5% of seats (4.15% in 2010).

The clear victory for Prime Minister Viktor Orbán come as no surprise, yet will likely affect Hungary’s position in dealing with other countries in the EU which have previously criticised Orbán’s style of governing and several policies that have limited press freedom (several government-critical journalists were also denied access to the government parties’ election party). The election results have also further strengthened the position of Prime Minister Viktor Orbán and have  ensured the re-election of president János Ader (also Fidesz) in 2017. However, a more prominent role of the Prime Minister together with his party colleague as head of state will inevitably lead to a further marginalisation of the role of the president as a check-and-balance – a development that could already be seen during Orbán’s last four years in office.

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For more information on the results of the Hungarian parliamentary elections see:
Saltman, Erin Marie. 2014. ‘Fidesz have won a clear victory in Hungary’s elections, but their supermajority hangs in the balance’. LSE EUROPP Blog 7 April 2014.
http://blogs.lse.ac.uk/europpblog/2014/04/07/fidesz-have-won-a-clear-victory-in-hungarys-elections-but-their-supermajority-hangs-in-the-balance/