Friday, March 10, 2017

The Russian proposal for a new Syrian constituition

As the conflict in Syria continues, the various parties in the conflict have continued to debate and disagree upon a means of resolution. Recently, the Russian Foreign Ministry presented a proposal for a new Constitution for post-war Syria, which you can find here.

Most of my readers will be aware of Russia's support for the government of Bashar al-Assad in the Syrian Civil War. While Syria under Mr Assad's rule has had a constitution, up until 2012 the document entrenched the rule of Mr Assad's Baathist Party, which controlled the National Assembly and presented a single candidate to the electorate to be accepted or rejected in a referendum (these referendums generally resulted in 98-100% 'victories' for the Baathist candidate).

It was only in 2012, once the civil war had started, that Mr Assad amended the document through another referendum, which secured a claimed 89% approval but was boycotted by rebel and opposition groups and condemned by Western leaders. No mention is now made of the Baathist Party, and the Presidency is now directly elected for a seven year term, renewable once, from amongst candidates who receive the nomination of 35 members of the 250-member People's Council.

Opposition members and Western leaders have claimed that this is merely window-dressing, and no candidates with the support of the armed domestic opposition contested the 2014 presidential election, which was won by Mr Assad with 88.7% of the vote, a poll condemned by the West and called into question on statistical grounds.

It's clear, then, that it won't just be institutions that will have to change for the conflict to be resolved in a way acceptable to the armed opposition: nominally democratic institutions can clearly be subverted, and there needs to be a spirit of good faith amongst the various participants for institutions to work. Nonetheless, institutions matter, and it is worth looking at the Russian proposal to see what its effects might be.

Rights, Freedoms, and Devolution

As is now the norm, the draft constitution contains a list of 'Basic Principles', which in very general terms outline the roles the Syrian government is expected to play, and a later list of Rights and Freedoms. These promise freedom of religion, freedom of economic activity, a ban on discrimination based on gender and origin, freedom of speech (excluding "social, racial, national or religious hatred or hostility"), the right to privacy, and various others. Some more specific economic rights are included, such as the right to work in safe conditions and the right to medical care.

However, more interesting in this section is the provisions regarding decentralisation and language. The north-east of the country, a region known as Rojava, is dominated by the Kurdish ethnic group. This region is currently controlled by the 'Syrian Democratic Forces', a Kurdish-led group which has introduced a unique and relatively democratic form of government. The Kurds will want to keep some of this separate status in a post-conflict Syria.

In relation to this, the proposal promises that government agencies of the "Kurdish cultural autonomy", a term which is left to be defined by law, shall use Kurdish and Arabic in equal amounts. Syrians are also granted the right to educate their children in their "native language", and regions are granted the right, subject to approval by a referendum, to use another "majority language in addition to the official language".

It is also stated that "Syria consists of constituent parts" and that "the organisation of local authorities is based on applying the principle of decentralisation of authorities and responsibilities". Nonetheless, this is undermined by the fact that all of the powers for these local authorities, as well as their boundaries, are dependent upon national law. The lack of any explicit guarantee over the status of these authorities would likely represent a sticking point for Rojava, which may want to hold onto its autonomous status.

Structure of Government

The proposal calls for a bicameral legislature. The lower house, named the "People's Assembly", is directly elected for a four-year term: details such as the electoral system are left to legislation. It has the exclusive power to ratify treaties.

The upper house, named the "Constituent Assembly" (at least in this translation: normally such a name is used for bodies that draw up constitutions) is to consist of "representatives of the constituent parts (the regions)". Its composition and term lengths are left to legislation. It appoints judges of the highest court (the Supreme Constitutional Court), as well as the chairman of the National Bank.

In terms of passage of legislation, both houses and the President have the authority to introduce legislation, but legislation is to be first examined in the People's Assembly. If the law receives majority approval (note that it appears to require the majority of the legislature, not merely the majority of those present), it then proceeds to the Constituent Assembly. Again, it requires majority approval of the entire Assembly.

If this is denied, a committee of the two houses may look at the legislation. Failure for this to get the legislation approved by both houses means that the People's Assembly, by a two-thirds majority, may send the legislation to the President's desk; otherwise, the legislation fails.

The Executive

Executive power, under the document, is shared between the President and the Government. The President is elected by the two-round system for a seven-year term, renewable once (it has been speculated that this is in place to allow Mr. Assad to hold power for an extra fourteen years). Candidates will still require the support of 35 members of either the Constituent or People's Assemblies. Oddly enough, there is no fixed date for presidential elections; the date is chosen by the People's Assembly, but must be within a certain window of the expiry of the incumbent President's term.

The President has substantial power under this proposal. They are given the authority to represent Syria in international relations, to declare states of emergency with approval of the Constituent Assembly and to approve or reject legislation passed by the legislature (which may override rejection by a two-thirds majority in a joint sitting of both houses). The President can be removed from office after being charged with high treason or another grave crime by the People's Assembly through a two-thirds vote, the approval of the charges by the Supreme Constitutional Court, and a two-thirds vote of the Constituent Assembly to remove the President.

A semi-presidential system is proposed, which appears to be of the president-parliamentary subtype. This means that the President appoints and dismisses the Prime Minister and ministers: this government must be appointed "based on the proportionate representation of all ethnic and religious groups". The government is also responsible to the legislature, that is to say, it can be removed by a no-confidence vote of the legislature in joint sitting.

However, the balance is tilted in favour of the Government and President by a provision requiring that no-confidence motions be signed by one-third of the members of either the Constituent or the People's Assemblies: if the motion fails, none of those members may sign another no-confidence motion. No no-confidence motion may be carried during a state of emergency.

In the book Presidents, Parties and Prime Ministers, David Samuels and Matthew Shugart show how under the president-parliamentary subtype, factors relating to the legislature (inter and intra-party conflict and legislative election loss) account for 43% of changes in the Prime Ministership in their sample of countries, compared to 76% for cases of the premier-presidential subtype (where only the legislature may remove the Prime Minister and cabinet). This shows that the President would have a key role in government appointment under this system.

Another key presidential power is the authority to unilaterally call binding referendums on "important issues which affect the higher interests of the country". Laws carried at such referendums are immune from constitutional review. This is a seemingly rare and extraordinary power for the President.

Miscellaneous Issues

A Supreme Constitutional Court is established, with judges chosen by the Constituent Assembly for renewable four-year terms. These terms are fairly short by international standards (France and Italy has nine-year terms, retirement at 70 for Australia and 75 in Canada, and judges of the US Supreme Court have life terms). Removal of judges can also be regulated by law, while it is more common for super-majorities of the legislature or other special procedures to be laid down for these judges.

The implementation of laws and the determination of policy is somewhat confusingly divided between the President (who "issues decrees, edicts and instructions in accordance with the Constitution and the law") and the Government (which "guides the work of ministries and public bodies" and "issues decisions and regulations").

Amendment of the Constitution can be done with 75% approval of both houses of the legislature and approval by the President. However, given that referendums initiated by the President are immune from constitutional review, this would appear to be the path of least resistance for de facto constitutional change.

Prospects for success

To say the least, the proposal has not been well-received by the existing armed opposition. It appears flawed in various ways for a post-conflict nation, but the key issue is its majoritarianism. No guarantee of regional autonomy is provided; it is still technically in the gift of the central government. 

More disconcertingly, the Constituent Assembly's composition is left entirely to law. Even were it to be initially chosen by elected regional governments, one party winning the Presidency and a majority in both houses could create weak, appointed regional government bodies and stack the Constituent Assembly (by legislating that it be appointed for long terms by the President, like the South African National Party did in 1955). The likelihood of such an occurrence would depend to some extent on the electoral system: the existing system is the multiple non-transferable vote, which can be highly majoritarian.

This proposal is an interesting contribution by the Russian Foreign Ministry to discussions for Syria's future. However, the document has the potential to create a top-heavy, powerful presidency, potentially filled by Mr Assad, which could create dissatisfaction amongst opponents of him and lead to future armed conflict. A better design for a post-conflict constitution would provide for more checks on this executive, such as a change to a premier-presidential system, entrenched power for regional governments, and a clearer outline for the composition of the Constituent Assembly.

Thursday, February 9, 2017

France Presidency 2017

France is scheduled to hold the first round of elections to the Presidency on the 23rd of April; if no candidate receives a majority of votes in this round, a second round will be held, between the top two candidates in the first round, on the 7th of May. Elections to the National Assembly, the popularly elected and most powerful house of the bicameral legislature, are also scheduled to take place in June, roughly one month after the likely second round of the presidential election.

I've written before about France's electoral system, but it is worth summarising the nation's constitutional arrangements at present. France has a semi-presidential system of government, with both a directly-elected President for a five-year term and a Prime Minister responsible to the lower house of the bicameral legislature (the National Assembly). The system is of the premier-presidential sub-type, meaning that the Prime Minister cannot be removed by the President, though they may appoint a Prime Minister.

This election follows five years of the presidency of Francois Hollande, a Socialist. Mr Hollande was elected to the presidency, defeating the leader of the centre-right UMP (Union for a Popular Movement) after seventeen years of centre-right control of the office. Mr Hollande, however, has struggled with a stagnant economy and high unemployment, and did not choose to seek re-election. He leaves office with low approval ratings, and with a Socialist Party that lost substantial support in local and European elections during his tenure.

Candidates

Benoit Hamon-Socialist Party
The governing Socialist Party held an open primary to determine their presidential candidate. Voters were required to be registered to vote in normal French elections, to donate one euro to the organisation conducting the primary (while only Socialist candidates were likely to win, candidates from minor parties closely affiliated to the Socialists also competed, hence the primary was branded as the "Citizens' Primary"), and to generally accept the values of the left. 1.6 million votes were cast in the first round, a figure which increased to 2 million in the second.

The leading candidates for this primary were Manuel Valls, a former Prime Minister, and Arnaud Montebourg and Benoit Hamon, both former cabinet ministers. Valls, considered a more right-wing candidate than the other two, led in early polls, but the first round of the primary resulted in an unexpected first place for Mr. Hamon, who won 36% to 31% for Mr. Valls and 17% for Mr. Montebourg. No other candidate won more than 7%. Montebourg endorsed Hamon for the second round, who won 58% to 42% for Valls.

Hamon is considered to be on the left of the Socialists, supporting a policy of providing a basic income to all citizens and the legalisation of cannabis.

Francois Fillon-The Republicans
Like the Socialists, the Republicans (a re-brand of the UMP) held an open primary to determine their nominee, in which the general public could vote. The unpopularity of the incumbent Socialist government made it likely that the Republican nominee would have a good chance of victory; hence, there was more interest in the Republican primary. 4.3 million voters turned out in the second round, 4.4 in the second.

Also similar to the Socialists, there were three main candidates in this primary. Former President Nicolas Sarkozy and former Prime Ministers Alain Juppe and Francois Fillon. Mr Juppe was the front-runner, with most expecting the runoff to between him and Mr Sarkozy. However, after a strong debate performance, Fillon surged to 44% in the first round, with Juppe on 29%, Sarkozy on 21% and no other candidate above 3%. With Sarkozy endorsing Fillon, he won an easy victory in the second round with 66% of the vote.

The victory gave Fillon frontrunner status; given the divided nature of the left, it was considered likely that he would face National Front candidate Marine Le Pen in the second round. Ms Le Pen's radical views mean that Fillon would likely win such a runoff comfortably with leftist votes. However, in recent days, he has been beset by a scandal involving his wife being paid for an apparently 'fake job', and his polling has dropped accordingly. It remains to be seen whether he will remain in the race.

Emmanuel Macron-Independent/En Marche!

Emmanuel Macron served as economy minister for two years as a Socialist, but resigned from the position last year, after conflicts with party positions on various matters within his portfolio. He then launched a new political party, En Marche!, and ran for the presidency. He has also signalled his intention to run a slate of candidates for the National Assembly election. 

Initial polls had Macron in third place, behind Le Pen and Fillon. However, following the Fillon scandal, recent polls have shown him catching up to Fillon, and advancing to the second round, where he receives the support of the centre-right and beats Le Pen comfortably. He stands on a platform of economic liberalisation and general social liberalism, to the right of Hamon and perhaps Le Pen economically, but to the left of Fillon and Le Pen on issues like immigration. 

Marine Le Pen-National Front

The National Front are a long-term minor presence on the French political scene. The usage of the two-round system, where the centre-left and right generally team up against National Front candidates in the second round, has generally led to little representation for the party in the National Assembly. The party's most substantial result in the past was Le Pen's father, Jean Le Pen, reaching the second round in the 2002 presidential election, narrowly beating Socialist Lionel Jospin in a fragmented race. Mr Le Pen's opponent in this round, UMP incumbent Jacques Chirac, received the endorsement of Mr Jospin, and much of the left, propelling him to a landslide victory (82-18).

Mainstream opposition to the party comes from distaste of its opposition to immigration and Islam, however, with an increase in concern about terrorism and immigration after the Syrian refugee crisis, the party's stocks have risen. They won the highest number of votes at the 2014 European election, and have performed strongly at lower-level elections throughout Mr Hollande's term. It appears likely that Ms Le Pen will win the highest number of votes in the first round of the election, with roughly 24%; however, most polls have her losing a runoff by twenty points or more to Mr Macron or Fillon.

Other candidates in the race include leftist Jean-Luc Melanchon, running with the support of the Left Front (successor to the Communist Party), though his candidacy is under the name 'Unsubmissive France', Green candidate Yannick Jadot, Nicholas Dupont Aignan (who is attempting to fill the niche between Fillon and Le Pen), and various other irrelevancies. Melanchon is the strongest of this group, polling at around 10%. None of the others is higer than 3%. Centrist Francois Bayrou has not yet stated whether he will stand for the election; polls that include him show him at 5%.

Problems with the two-round system

The two-round system is one of those most commonly used for presidential elections around the world. Much of this is due to many presidential systems (such as those in Senegal and the Central African Republic) being in place due to French influence during colonial times, but the system is used in countries like the Ukraine and Poland because it ensures a candidate will be elected with majority support. 

Nonetheless, the system has a substantial disadvantage in fragmented elections, which we may see demonstrated in this upcoming vote. In a fragmented election, the possibility exists that two candidates can make it to the second round with little initial support. If an ideological group splits itself between too many candidates, the possibility exists that no candidate representing a substantial ideological group is able to enter the second round.

An example of this is shown in the 2002 presidential election. Red candidates represent leftists, blue conservatives, black far-right candidates and cyan centrists. As you can see, Chirac and Le Pen finished first and second, and all voters had to choose between them in the second round. However, 45% of voters, all up, voted for a leftist candidate, compared to 29% for the left and 19% for the far-right. Yet there was no candidate for the leftists in the second round, because of the increased fragmentation of this group.

The problem arises because the two-round system does not necessarily provide great incentives for voters to coalesce around two candidates. Left-inclined voters in 2002 may have felt comfortable knowing that they could cast a ballot for a minor leftist, to signify their support for that particular candidate, thinking that Jospin would certainly enter the second round. A first-past-the-post system would mean voters would coalesce between two candidates, at least in theory; often, this squashes diversity in the party system, or leads to candidates being elected with little support.

While Fillon's woes have made this possibility likely, it could potentially have been the case that the left, with the backing of roughly 40% of the electorate, would have had no representation in the runoff. This particular issue is partially circumvented for National Assembly elections, where candidates can enter the second round if they receive the support of 12.5% of the registered electorate (on average, this represented 21.8% of the vote cast at the last election). However, the Constitution of France specifically entrenches the top-two requirement for presidential elections.

Even so, one of the key advantages of preferential voting for single-member seats (as the Presidency of France is) is demonstrated by this particular alternative; the usage of several rounds of exclusions and transfers results in the candidates in later stages of the count having wider support than their equivalents under the two-round system.

The National Assembly

The President has the right, after 'consultation' with the Prime Minister and Speaker, to dissolve the National Assembly at any time of his choosing. However, the Assembly's maximum term is five years, meaning that an election must be held by the tenth of June this year. 

No doubt, such an election date would serve the victor of the election well. The popularity bump incumbent presidents receive has meant that the last three legislative elections, all held shortly after those for the Presidency, have resulted in majorities for the newly elected President's party, a useful tool given that failure to control the Assembly means the President loses control over the cabinet and becomes less able to pass their agenda.

This will become an especially important point in the case of a victory by Mr. Macron. His 'En Marche!' party, as a cursory examination of its website will show, spends much of its time discussing Macron's statements alone. He has said he will run candidates for all 477 seats, but the  gives the appearance of being a mainly personalistic vehicle, focusing on providing a brand to its lead candidate, far more than any other French party. The Socialist and Republican sites show statements from a variety of other figures, and both parties, despite their weaknesses at this election, do have large legislative caucuses and incumbent members with personal vote factors.

Normal behaviour has been for the centre-left and centre-right to form opposing alliances where they allocate seats to parties within said alliances, with the National Front generally not being able to make the second round in most seats due to this tactic (unlike the presidential elections); in 2012, they only entered the second round in sixty-five seats, and won two. If Macron wins, it may well be the case that he forms an agreement with the existing leftist alliance (Socialists+Greens) that would allow the Socialists to have some influence over the new government, while giving some experience and aforementioned personal vote factors to the President.

It is still largely unpredictable what will happen at these elections. Perhaps reflecting the irrelevance of such polling until the winner of the Presidency is determined, the most recent poll with seat numbers was taken in June 2016. It had the centre-right winning a majority, and the National Front winning around fifty seats (in normal two-round elections, they have never left single digits; this would be their best result for any National Assembly election). Such a result, which seems consistent with general increases in support for the FN at the local and European level (implying it's not just Ms Le Pen's personal support) would provide a clear reminder of that party's growing influence, even if Le Pen loses.