By Paul T.Shipale
IT is reported that government is planning to amend the constitution in order to have a Vice-President and a Vice-Chief Justice while at the same time increasing the number of members of parliament from the current 72 and stripping regional councillors and the National Council of some powers. The question is – what are the constitutional implications with regard to the current semi-presidential system adopted by the Constituent Assembly on the 9th of February 1990?
Since it was first proposed by Maurice Duverger, the notion of a democratic regime type that can be characterized as semi-presidential has become well established.
Adapting from Duverger’s (1980) original and influential definition, semi-presidentialism may be defined by three features: A president who is popularly elected; the president has considerable constitutional authority; there exists also a Prime Minister and Cabinet, subject to the confidence of the Assembly Majority.
These features define a dual executive (Blondel 1984), in that the elected President is not merely a head of state who lacks political authority, but also is not clearly the “Chief Executive”, because of the existence of a Prime Minister who may not be strictly a subordinate of the President. The precise relationship of the President to the Prime Minister (and cabinet), and of the latter to the assembly fit the basic Duvergerian conception of semi-presidentialism.
By virtue of its being called semi-presidential, the regime type in question is clearly identified as a hybrid that is neither presidential nor parliamentary. If we consider ‘presidential’ and ‘parliamentary’ to be terms denoting pure types, from both of which semi-presidentialism draws certain characteristics, we need clear benchmarks as to the features of the pure types.
A “pure” parliamentary democracy should be understood to mean a regime that can be defined by the following two basic features: Executive authority, consisting of a Prime Minister and Cabinet, arises out of the Legislative Assembly; the executive is at all times subject to potential dismissal via a vote of “No Confidence” by a majority of the legislative assembly. (A non-exhaustive list of recent works in this subfield just in the past would include von Mettenheim 1997; Frye 1997, 2002; Taras 1997, 2003; Metcalf 2000; Siaroff 20030. As is the President of Ireland, for example; also Finland since 2000 (Nousiainen 2001). These two criteria express a hierarchical relationship of executive to legislative authority, whereby the executive arises from and is responsible to the majority of the Assembly.
Presidential democracy, on the other hand, is defined by the following three basic features: The executive is headed by a popularly elected president who serves as the “Chief Executive”; the terms of the Chief Executive and the Legislative Assembly are fixed, and not subject to mutual confidence; the President names and directs the Cabinet and has some constitutionally granted lawmaking authority. The defining characteristics of parliamentary and presidential democracy, then, speak first to the question of the origin and survival of the executive and legislative branches (Shugart and Carey 1992).
In a parliamentary system, executive authority originates from the assembly. As for a system to be parliamentary, the process of forming a government must fall to the majority party, if there is one. If there is not, it must derive from bargaining among those politicians with an elective mandate from the most recent assembly elections. Once formed, the government survives in office only so long as it does not lose the ‘confidence’ of the majority.
In a Presidential system, on the other hand, the origin and survival of executive and legislative authority are separate. The first criterion of the definition of presidentialism contrasts starkly with that for parliamentarism, in that it denotes the existence of a chief executive whose authority originates with the electorate. The second criterion specifies that, unlike in a parliamentary system, the chief executive is not subject to dismissal by a legislative majority. Furthermore, neither is the assembly subject to early dissolution by the President. Both branches thus survive in office independent of one another.
The addition of the third criterion, regarding the president’s authority, is important for establishing the independence of the president not only in terms of origin and survival, but also in the executive function, for it sets out that the cabinet derives its authority from the President and not from Parliament. It further stipulates that the President has some legislative authority, and thus is not “merely” the executive. It is the fact of separate origin and survival combined with shared lawmaking powers that generate the necessity for the executive and legislature to bargain with one another, such that legislative change is a joint product of both elected branches.
The basic theoretical underpinning of presidentialism has its origins in The Federalist Papers, the theory of constitutional design propounded by James Madison on how political systems channel political ambition. Like contemporary rational-choice institutionalists, Madison took it as axiomatic that political actors are motivated by personal gain. He accepted selfish motivation as inevitable and sought to harness it for the greater good. Doing so, he argued, entailed establishing a system of institutions that structure and check that ambition. Thus, Madison wrote in Federalist 51, the design of government “consists in giving to those who administer each department [i.e. branch] the necessary constitutional means and personal motives to resist encroachments of the others” (Hamilton, Madison, and Jay 1787/1937: 337).
Ambition is checked, in the Federalists’ design, through the creation of distinct branches with separate agency. That is, in what contemporary social science would recognize as a principal–agent conception of the delegation of authority, Madison, in Federalist, emphasized that any power delegated to representatives has the potential to be turned against the principal. Therefore, Madison argued, multiple competing agents of the citizenry must each be empowered and motivated to check the ambitions of one another. This is an alternative to a model based primarily on hierarchy.
Contemporary scholarship in a neo-Madisonian tradition (Carroll and Shugart 2005) is interested in the organization of government in terms of the hierarchical and transactional authority patterns between institutions. In a hierarchy, one institution is subordinated to another. Hierarchy is thus about vertical relationships, in that one actor is superior to another. Transactional relationships, on the other hand, are among co-equals. Two institutions or actors in a transactional relationship each have independent sources of authority, and must cooperate to accomplish some task, thereby implying a horizontal juxtaposition of co-equals. The neo-Madisonian perspective, specifies the formal hierarchical and transactional juxtaposition of authority between constitutionally defined actors, It then allows for the incorporation of informal or extra-constitutional features that shape the actual behavioral patterns, such as the structure of the party system and the preferences of officeholders, which might temper a formal transaction with elements of hierarchy or vice versa. By analyzing patterns of both formal authority and behavior, we can gain a firmer grasp on which features of regime performance are largely immutable (absent institutional reform) and which are transitory (dependent on election outcomes and leadership).
When it comes to authority patterns in Presidential and Parliamentary Government, because of the fusion of origin and survival discussed above, a parliamentary system makes the executive an agent of the assembly majority, hierarchically inferior to it because the majority in parliament selects the executive and may terminate its authority. A Presidential System, on the other hand, features an assembly and executive that originates and survive separately from one another, and thus must transact, because neither selects the other and neither may terminate the authority of the other.
Indeed, the juxtaposition of an elected president with a cabinet responsible to parliament is the hallmark of a semi-presidential system. This combination was placed in the German Weimar constitution on the advice of the eminent social scientists Hugo Preuss, Robert Redslob, and Max Weber (1917/1978: 1452–3) (Mommsen 1984, Meyerson 1999, Stirk 2002). This notion of separate legitimacy can be seen as a modern echo of Madison’s call for separate agency as a means of keeping each institution in its proper place. Yet the Weimar synthesis retained cabinet responsibility to parliament. Such is the very essence of a semi-presidential system.
Thus in a typical premier-presidential system, the president selects the prime minister who heads the cabinet, but authority to dismiss the cabinet rests exclusively with the Assembly Majority. Once appointed then, a cabinet that enjoys parliamentary confidence is not subordinated to the President but to Parliament, and thus the relationship between President and cabinet is strictly speaking transactional. In a typical president-parliamentary system, on the other hand, the president selects the cabinet and also retains the possibility of dismissal. In this sense, this form of semi-presidentialism is much closer to pure presidentialism and is why the cabinet is place beneath the president, in contrast to the depiction of premier-presidentialism. Namibia is typical president-parliamentary semi-presidential system.
Nonetheless, president-parliamentary and premier-presidentialism systems are semi-presidential because the Assembly Majority may dismiss the Cabinet even if the President would prefer to retain it. Thus the President and Assembly must engage in transactions, not only over policy-making but also over the composition and direction of the Cabinet, brought on by the dual accountability that defines the president-parliamentary subtype. Dissolution is thus parallel to the defining characteristic of semi-presidentialism by which the Assembly may dismiss the head of the executive branch. Here in Namibia, however, when the President dissolves Parliament, he also automatically calls for fresh Presidential elections.
Against this background, to answer our question; the country will still have a president-parliamentary semi-presidential system, albeit with more power given to the executive. The fact that there will be a new position of the Vice-President does not affect the transactional juxtaposition of authority between constitutionally defined actors.
• Disclaimer: The opinions expressed here do not necessarily reflect those of my employer and this newspaper but solely reflect my personal views as a citizen.