Wednesday, October 19, 2016

The Butler-Palmer proposal for a New Zealand constitution

Unlike most nations of the world, New Zealand does not have a written constitution. The process of how its government is appointed is governed by ordinary legislation; specifically, the Constitution Act 1986. However, unlike most constitutions, this legislation is not specially entrenched; nor can courts check the validity of legislation against it, since Parliament is considered the supreme body for national legislation. This system is inherited from the United Kingdom, which has a similar constitutional system.

Some opponents of this system claim that it provides little protection for individual liberties (New Zealand's 'Bill of Rights Act' has no validity in the courts), and that it makes the Constitution difficult for ordinary citizens to understand. It was these reasons in particular that appear to have encouraged former Labour Prime Minister Geoffrey Palmer and constitutional lawyer Dr. Andrew Butler to write a draft of a potential New Zealand entrenched Constitution. The document is available here.

The Constitution contains some interesting ideas, though it is mostly relatively gradual change from New Zealand's current constitutional system. At the moment, New Zealand has a unicameral parliament, elected by mixed-member proportional representation. A government is chosen by, and responsible to, this Parliament. All of these features would be preserved, and strengthened in the case of the electoral system. Nonetheless, changes are made to some parts of the nation's constitutional structure. The largest one of these is the abolition of the monarchy.

Republic of New Zealand

The first parts of the Constitution lay out the most immediate and substantial change; the replacement of the monarchy, with the Queen of New Zealand (who, coincidentally, is also the Queen of the United Kingdom, Canada, Australia, Jamaica...) represented by the Governor-General with a Republic. Under the current system, the Queen appoints a Governor-General (by convention, the Governor-General is a non-partisan figure appointed on the advice of the Prime Minister of the day) who then appoints a Prime Minister (generally the leader of the party or parties with majority support in the Parliament).

Under the new system, the Parliament would elect, every five years, a 'Head of State'. It is specifically stated that MPs would have a free vote on this matter, though MPs may still follow party lines on this matter in the hope of gaining a more influential position within the party. This Head of State has the formal power to appoint a Prime Minister, though under the new system they can only appoint the candidate elected by Parliament. They appoint Ministers, though this is on the advice of the Prime Minister only. The same condition applies to the Head of State's power to issue writs for parliamentary elections, to appoint ambassadors, and to promulgate legislation.

Regardless of what my readers may think about the virtues of republicanism, one potentially concerning issue exists with the manner in which legislation is promulgated. Laws passed by the House go to the Head of State for signature. In deciding whether to give approval to legislation, the Head of State must act "on advice from the Prime Minister and Attorney-General". This could potentially mean that Parliament's ability to legislate over the head of the Government could be jeopardised, given that the Prime Minister could simply advise the Head of State to veto legislation that Parliament had passed without his support.

This could be more of an issue in New Zealand's political system. Mixed-member proportional representation means that one party has never had an absolute majority in the House, and as such governments are dependent on support from other parties, perhaps with different ideologies. Were these other parties to disagree with the policies of the government, and were they to attempt to vote with the opposition on a bill, the senior government party, with a minority of seats, could simply veto that bill.

Of course, the general response would be that while New Zealand's (and Australia's) Governors-General have had authority to refuse assent to legislation, they have never done so by convention. This is true, but the Australian Constitution and the New Zealand 'Constitution'  do not include the requirement for the Governor-General to act on the advice of the Prime Minister, and thus the convention would be changed.

A better way of putting this would be to either give the power of promulgating legislation to the Speaker of the House  (as in Papua New Guinea), or to allow the Parliament to override the decision of the Head of State by simple majority and either require them to assent to the legislation (as in Morocco) or allow the Speaker of the House to do so (as in the former Kingdom of Laos). The Head of State could also be simply required to sign the legislation. Any one of these solutions would work just as well as the other, but one should be adopted to ensure Parliament is able to act as a law-making body.

Choosing a Government

The present system of choosing a Prime Minister by the Governor-General appointing the person who has the confidence of the House would be replaced under the new Constitution. Under the new system, the Parliament elects a Prime Minister from amongst its members. The Prime Minister must have majority support from the Parliament, which I take to mean that the Prime Minister would be elected by exhaustive ballot (MPs vote for candidates, the candidate with the lowest number of votes is excluded, a further round takes place amongst the remaining candidates. This process repeats until one candidate has a majority. The candidate who has a majority is then appointed by the Head of State as Prime Minister.

This method of appointing a Prime Minister is quite common in the Pacific region. Papua New Guinea, Vanuatu, Fiji, Nauru (though this is for the combined Head of State and Head of Government, titled the President) and Tuvalu all 'elect' their Prime Minister in this way. In theory, the system acts the same as the method used in other Commonwealth countries of appointment by the Sovereign; in both cases, the Prime Minister should have majority support in the parliament. However, it does provide some clarity to the process. Attempts to use the method of appointment by the Sovereign in countries that are more politically fractured, such as Nigeria, resulted in political violence and extended litigation; even in Australia, the dismissal of the Whitlam government in 1975 represented a case where the powers of the Sovereign were used in a controversial manner.

In this case, then, this represents a very minor change to existing practice in New Zealand. Nonetheless, it would appear to be sensible to take powers away from a Head of State who is meant to "endeavour to act as a non-partisan symbol of unity"; even more so when that leader is chosen for a fixed term by a simple majority of Parliament.  As is normal practice, the Head of State would then appoint a Cabinet, on the advice of the Prime Minister.

Fixed terms of Parliament, for four years, are established. Early elections may be held if three-quarters of Parliament vote for them, or if a majority of MPs vote no confidence in the Government and no new government receives a vote of confidence for fourteen days. This does give the option, for a government wishing an early election, of faking a vote of no confidence in itself and using its majority to block formation of a new government. Nonetheless, this tactic could not be effectively blocked without making it impossible for Parliament to be dissolved in case of a severe deadlock.


The Parliament remains unicameral, and most features are again simply the current practice in New Zealand, but codified. The mixed-member proportional representation system is specified as the means by which Parliament is elected, meaning that it cannot be changed without a Constitutional amendment.

Certain parliamentary offices are specified in the Constitution. The Leader of the House, the Opposition Leader, and the Finance Minister are all in the document, with their roles vaguely outlined. This appears to be an attempt not so much to entrench these offices (which have existed in NZ since the evolution of the modern party despite not being in the Constitution) as to make the Constitution more effective in describing how government operates in the country. A committee system is also entrenched. The committees are given the right to propose legislation, and ministers are prohibited from serving on most of them.

Various other financial offices are entrenched, such as the office of the Auditor-General and the Reserve Bank, which is tasked with "formulating and implementing monetary policy designed to promote stability in the general level of prices" and "promoting the maintenance of a sound and efficient financial system".

Rights and Freedoms

Of course, the main goal of this constitution is to create some rights and freedoms against which legislation can be checked. Oddly enough, this section is towards the ending of the document, a rarity when a Constitution has a bill of rights planned out at drafting (the US's rights and freedoms provisions are towards the end, but they were not put in when the Constitution is written); the only example I can immediately think of is Rhodesia, and those were not strictly rights and freedoms (given that they were qualified to the moon, and were not judicially enforceable anyway).

The rights provided are quite broad, including freedom of expression, the right to privacy, freedom from discrimination on a wide variety of bases, freedom of religion, and rights to a fair trial. These rights, however "may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". This gives some leeway for the government to qualify these rights, though is not uncommon in rights and freedoms provisions around the world. It is also obviously stronger than the current wholly unenforceable Bill of Rights.

Some more rights are provided in the economic area. Free education to the secondary level is guaranteed, and the government is also required to protect the environment (this, as far as I can tell, would be enforceable through the courts). A series of principles for economic policy are laid out, including rights to an "adequate standard of living", social security, and satisfactory health and safety conditions in employment. These principles are explicitly not enforceable through the courts.

The police and intelligence agencies are both specifically mentioned in this section. Both set out that activities of these agencies must be limited by law. Information collected by the security agencies must be approved by a warrant from a 'judicial officer'. Precisely why this provision exists when the right "not to be subject to arbitrary or unlawful interference with that person’s privacy, family, home or correspondence" is unclear; one would assume that, were judicial review to be robust, the courts
would establish guidelines for surveillance.

Other sections

Local government is entrenched in the Constitution, though with no specific powers being granted; rather, a series of principles for its organisation are set out. The office of an Ombudsman is mandated, as is a requirement that official information "must be made available to the greatest extent practicable".

Amendment of the Constitution is done by a vote of three-quarters of Parliament; quite a high threshold by international standards. The US requires a two-thirds majority of both houses of Congress (and ratification from three-quarters of the states) and India requires two-thirds of both houses and half the states: closer in the region, Vanuatu requires two-thirds of Parliament, and Papua New Guinea requires two-thirds as well, while Australia requires a majority in both houses and passage at a referendum by a majority of voters both nationwide and in at least four States. Back in NZ, a referendum is then required, with a majority of votes sufficient to pass the referendum (this is how I interpreted the provision; it does not state specifically that both are required, or that only one is).

An extra provision is added for legislation that is invalidated by the courts for incompatibility with the Constitution. This legislation may be 'validated', and hence considered to be in accordance with the Constitution, if a law to that effect is passed by three-quarters of Parliament (but no referendum). For a Constitution where much effort appears to have been put into making it easy to understand, such a provision would seem to hide amendments to the document in hard-to-find pieces of legislation.

One of the most interesting, and as far as I know unique, provisions is the requirement that a Constitutional Commission be held every ten years. This Commission is to be composed of six law officers (the Clerk of Parliament, the Chief Justice, the Ombudsman etc.) and six lucky members of the public. It is tasked with investigating amendments to the Constitution, and reporting to Parliament on the matter.

In general, the Butler-Palmer proposal has substantial merit for protection of human rights, as compared to their current protections, and for making the governing process clear. Nonetheless, in an effort to reach this goal some of the provisions appear too vague, while others seem even redundant. This could lead to difficulties when legislation went before the courts. In order for the document to be effective, clarity and specificity should be placed above educational value. The remainder of the document represents effective codification of current practices, though with some questionable changes involved in the process of transition to a republic.

Wednesday, September 28, 2016

Hong Kong 2016-Electoral systems against political parties

The small city-state of Hong Kong held general elections for their Legislative Council on September 4. Hong Kong, though technically a part of China (PRC), was granted substantial autonomy upon its return to China in 1997 by the British (it had previously been a British colony). The citizens of Hong Kong enjoy civil liberties not held by other Chinese, and, to some extent, they are able to choose how they are governed.

It is this extent that has been one of the key areas of debate in Hong Kong politics ever since the handover, and explains why the state's politics have traditionally been between pro-democratic parties (which support rapid transition towards democratic governance) and pro-Beijing parties (which support either no change towards democratic governance, or more gradual change than the pro-democrats).

Executive government in the region is controlled by the 'Chief Executive', and a cabinet of Secretaries appointed by him. The exact method of selection of this Chief Executive is, at present, by a 1,200 member 'Election Committee', which is indirectly elected and comprised of representatives mostly chosen by business interests. This has led to Chief Executives coming from the pro-Beijing faction of Hong Kong politics, which is usually in an electoral minority.

The Basic Law states that "the ultimate aim is the selection of the Chief Executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures", though no specific timeline is laid down for this process. Last year, I wrote about the proposal for a new way to elect the Chief Executive; direct elections, but with candidates chosen by a somewhat unrepresentative nominating committee, and with the possibility of no candidates from the pro-democratic camp being permitted to contest the election. The change would have required amending Hong Kong's Basic Law, which needs support from two-thirds of the Legislative Council. As the pro-democrats have over a third of the seats, and as they refused to acquiesce to the proposals, the changes were not made.

The Legislative Council's composition is also a bone of contention. Out of the seventy members of the council, thirty are elected from what are known as 'functional constituencies'. These members are elected by people registered as having an interest in certain areas of business, like law, fisheries and banking. Five additional members are elected in a 'super' functional constituency, in which all electors ineligible to vote in one of the other functional constituencies are permitted to vote; only members of local councils may run as candidates in this functional constituency.

On average, each of the Functional Constituencies that went up for election this year had approx. 8,500 voters. This is compared to approx. 62,000 voters per seat elected in a 'geographic' constituency, in which anyone over 18 may vote and stand as a candidate (with the exception of people who refuse to acknowledge Chinese sovereignty over Hong Kong). There is huge variation between the seats, with the largest district (Education) having 482 times the number of voters as the smallest (Agriculture and Fisheries); both elect one member. 

This over-representation of business interests, which tend to support pro-Beijing parties, have ensured a majority for the pro-Beijing faction has prevailed since Hong Kong was returned to China, despite these parties never receiving a majority of the votes in the geographic constituencies. Pro-democratic parties forcefully argue against this, claiming that it is undemocratic, while pro-Beijing parties would argue that given that business makes a large financial contribution to Hong Kong, they should have a large say in governance.

The electoral system for universal suffrage elections

As stated above, however, Hong Kong does allow all voters to choose some members of the Legislative Council. Thirty-five members are chosen in the geographic constituencies; as the name implies, these members are elected from five specific geographic areas. Another five are chosen in the special functional constituency.

The first universal suffrage elections to the Legislative Council took place under British rule in 1991. This was for only eighteen seats, with twenty-one being appointed by the colonial Governor, and another twenty-one being chosen by functional constituencies. These elections took place in nine two-member districts, with voters having two votes for individual candidates. The two candidates with the highest votes would win. 

In general, this system would be expected to result in the party or faction with the most votes winning both seats, given that voters for a party would vote for both of that party's candidates. The results seemed to bear this out, with the pro-democracy parties winning sixteen seats (later increased to seventeen after a by-election) of the eighteen, despite only receiving 58.2% of the vote. This clearly had little impact on the government of the city, since the members were outnumbered by the appointed, generally pro-establishment members. 

At the next election, held in 1995, a number of changes were made to the composition of the Council. Twenty members would be directly elected, and they would be elected in single-member districts, though the electoral system would still be plurality (one vote, candidate with the most votes wins). Nine new functional constituencies were added.

These results were a landslide win for the pro-democratic parties in the directly elected seats; they won 17 with 63% of the vote. This landslide, along with relatively strong support in the functional seats, allowed the pro-democrats to win a narrow majority in the Council. This obviously displeased Beijing, which was scheduled to take over the city in 1997.

For the immediate time, Beijing destroyed the pro-democrat majority Legislative Council by appointing their own Elections Committee to choose a Provisional Legislative Council, which took over the role of the provisional Legislative Council.  However, upon the resumption of elections post-Beijing takeover, an important change was made to the electoral law; for the twenty directly elected members of the LegCo, the single-member plurality system was replaced by party-list proportional representation, in districts with an average magnitude of four members.

The results of the 1998 election, the first held after the handover, resulted in the three main pan-democratic parties securing 57% of the vote. This figure does not include independent candidates, some of whom may have been sympathetic to the pan-democrat cause. These three parties were able to secure thirteen out of twenty seats in the direct seats. However, once the results from the thirty seats elected by the functional constituencies and the ten elected by the Elections Committee came in, the narrow pro-democratic win in the directly elected seats were more than balanced out by the massive pro-Beijing majority on these other seats, allowing the pro-Beijing parties to win a majority.

For the most part, the statement made by the Hong Kong Electoral Commission that results with PR would "more accurately reflect the wishes of the electorate" was correct. At the same time, the Legislative Council was not representative as a whole of the electorate of Hong Kong. PR also had its clear advantages to the pro-Beijing political parties. But the advantages for Beijing do not stop with preventing pan-democrat landslides in the elected seats.


The specific party-list electoral system that was used for the geographical constituency elections was the largest-remainder method with the Hare quota. This particular method is notable for, compared to other electoral systems, advantaging small parties. It sounds rather counterintuitive, but for largest-remainder proportional representation systems, higher quotas advantage small parties. The reason for this is that distributing seats by remainder is very advantageous to small parties, given that fewer votes are needed for a seat won by remainder than a seat won by quota. Higher quotas also reduce the remainders for parties that win seats with a quota, but do not do that for parties that reach a quota. If you're more interested in this, I would encourage reading Michael Gallagher's paper on the matter.

Under an electoral system where small parties are advantaged, the rational thing for a large party to do is to transform itself into several small parties. The advantages given to parties that win seats by remainder means that these small parties should aim to win seats by remainder only, thus they should aim for each of these lists to win one seat. If elections are between lists, each trying to elect one member, with the lists with the highest M votes being elected (where M is the number of seats to be elected), the electoral system becomes roughly equivalent to the single non-transferable vote.

This process did not happen immediately after PR was introduced, as can be seen below. However, it is in the last two elections that it has become completely pervasive; all lists elected only one member.
For small parties, with enough support to win one seat in a district, SNTV is an easy electoral system to manage. They run a single candidate, and concentrate all their votes on that candidate. However, for large parties with enough support to win more than one seat, there is substantial difficulty involved in maximising that potential. Run too many candidates, or spread your vote too thinly between those you run, and you run the risk of all these candidates receiving too few votes; run too few, or concentrate your votes on only one, and that candidate could win far more votes than other elected candidates, thus depriving your party of seats.

The advantages that the system gives small parties has led to a more fragmented legislature as the number of lists electing only one member has increased, as can be seen below (the 'effective number of political parties' figure measures, roughly, the number of equal-sized political parties equivalent to the actual makeup of the legislature).
The effect of the electoral system, therefore, appears to have been to stunt the creation of a large party on either side of the major political divide. It would not be unreasonable to say that the possibility of a large, unified anti-Beijing party could be concerning to Beijing's interests. This is why, even as the electoral system appears to hurt the pro-Beijing parties, they may be wary about changing it to reward party consolidation.

Did the electoral system hurt the pro-Beijing parties?

The issue of whether the SNTV system hurt the pro-Beijing political parties is somewhat important, given that these parties have authority to amend the electoral law if they so desire. At the 2012 election, there were a number of cases where the pro-democracy parties made nomination errors. This was especially substantial for the Civic Party, which decided to run one list in the New Territories West and Hong Kong Island seats with two incumbents, and encourage all their voters to cast a vote for this particular list.

The strategy backfired quite substantially. In New Territories West, the Civic list received 14.5% of the vote. The quota was 11.1% of the votes, as there were nine seats. As a result, the Civic Party was allocated one seat for their full quota, and then had 3.4% of the votes left as a remainder. This was not enough to beat the other parties; the last seat went to a pro-Beijing list with 6.8% of the vote. Had Civic successfully divided their vote into two, they could have beaten the bottom list and won two seats. Nomination errors along similar lines occurred in other Civic districts.

The usage of functional seats means that the contest in the geographic seats cannot be meaningfully considered important for overall control of the Council. However, given that a two-thirds majority is needed to amend the Basic Law (which entrenches many of the civil liberties given to Hong Kongers), the pro-democrats need to do relatively well in the elected seats in order to ensure that this law cannot be amended without consultation with them.

At this election, however, a substantial fragmenting factor appeared on the pro-democratic side. Localist candidates, supportive of increased autonomy and in some cases independence for Hong Kong, ran for election. These candidates appear to have taken most of their support from existing pan-democrats, which fragmented the anti-Beijing vote. Fragmentation, however, can be an advantage under this electoral system; as stated above, vote division that is a consequence of fragmentation can be useful to parties under SNTV. On the other hand, there were only three large pro-Beijing parties running, and they would have to make difficult internal tactical decisions about how to win the most seats.

So, did the SNTV system advantage the anti-Beijing parties? In order to calculate this, I compared the SNTV results to results using the D'Hondt system and party vote figures. The D'Hondt system with party vote figures is equivalent to what the SNTV system would look like if parties nominated the exact number of candidates as seats they can win, and then divided these votes perfectly between these candidates. This represents what the result would look like if vote distribution were not a factor.

The results of the analysis were that the pro-Beijing parties would gain two extra seats out of thirty-five elected seats. In both of these seats, the seats were lost due to an overly conservative nomination strategy; the party nominated too few lists to win the number of seats that they are entitled to. For example, in the Kowloon West seat, the pro-Beijing Democratic Alliance's one list received 18.8% of the vote, above the 16.7% quota. Under largest-remainder, this list's remainder of 2.1% was not nearly enough to win a seat. However, under D'Hondt, the party's vote was divided by two, meaning that the 9.4% left after the first seat was enough to beat the localist 'Youngspiration' candidate, with 7.4% to the last seat.

If the results of this election are anything to go by, then, it may be in the political interests of Hong Kong's pro-Beijing parties to introduce a system, potentially like D'Hondt, that rewards consolidated parties. However, as stated above, this could conflict with broader political goals in Beijing to encourage the pro-democratic parties to be fragmented and to have internal arguments.

A pattern? Macau's electoral system

Macau is another one of the territories returned to China by Portugal where China's political system does not fully operate. Like Hong Kong, Macau has a Legislative Council which is partially elected directly and partially elected through 'functional constituencies', though there are also seven members appointed by the Chief Executive. The Chief Executive, who performs a similar function to the identically named leader of Hong Kong, and is chosen by a similar, not directly elected, Elections Committee.

In Macau, only 14 of 33 members of the Legislative Council are directly elected, so there is a much smaller risk to the government of the pro-democratic parties winning a large number of seats. However, the electoral system used for those elected seats is uniquely designed to produce party fragmentation.

The electoral system for the elected seats is a variant of the highest averages method, like the D'Hondt method described above. However, when seats are calculated, the list of numbers used starts with one, and then are multiplied by the next number; the list goes 1, 2, 4, 8, 16.... A formula for a party's divisor would be 2^n, where n is the number of seats the party has already won. 

The effect of this is to very heavily penalise large parties, since their vote is divided into much smaller groups as they win more seats. The below chart shows how a party with 1000 votes would have their vote go down to 2 under the Macanese system after ten seats, compared to 100 under standard D'Hondt.

The effects of an electoral system that disadvantages large parties is, obviously, to encourage small parties, or to encourage large political factions to form small parties. This is certainly the case in Macau, where the largest party at the last election had merely 18% of the vote.

While there are only two regions to sample from, it would certainly not seem inconceivable that Beijing would have a political interest in keeping political organisations in the areas that are democratic divided. Electoral systems can have a substantial impact on political party systems, and the two chosen for these regions, by pro-Beijing political parties, encourage small, divided political parties.