Direct Democracy PDF

Direct Democracy International IDEA Constitution-Building Primer 3 Elliot Bulmer 1. Introduction 1. Introduction Direct democracy describes those rules, institutions and processes that enable the public to vote directly on a proposed constitutional amendment, law, treaty or policy decision. The...

Direct Democracy International IDEA Constitution-Building Primer 3 Elliot Bulmer 1. Introduction 1. Introduction Direct democracy describes those rules, institutions and processes that enable the public to vote directly on a proposed constitutional amendment, law, treaty or policy decision. The most important forms of direct democracy covered in this Primer are referendums and initiatives. Advantages and risks Direct democracy enables people to vote on important issues that may be excluded from, or cut across, representative party politics. The decision of the popular majority can be expressed beyond representative processes that are potentially distorted and elitist. However, mechanisms of direct democracy may become tools of majoritarian populism, by which leaders are able to bypass and weaken representative processes by appealing directly to the people. They raise questions of voter competence and governability, and run the risk of polarizing political opinions. There are also considerations of cost, time and logistics. Where is direct democracy used? Referendums are occasionally used throughout the world as an extraordinary measure, most often to ratify or amend a constitution or to decide on questions of statehood. Some democracies make more extensive and regular use of referendums and initiatives, making these instruments complementary to representative democracy. International IDEA 3  Direct Democracy 2. What is the issue? Democracy means rule by the people. In most modern countries, however, the population is too large to be constantly engaged in decision-making. For this reason, modern democratic states are almost universally based on principles of representative government. This means that, although the people do not govern themselves directly, they do decide who should govern—and, critically, who should be removed from government—through free, fair, regular and competitive elections. However, there are several reasons why a representative assembly might not provide a faithful and accurate reflection of the people’s views on every particular issue: In almost all democratic societies, elected representatives are typically drawn from the higher social classes, whose wealth, education or status differentiates them from the average citizen. Throughout the world, representative bodies usually under-represent women, marginalized minorities and those who stand outside of party politics. Representatives are chosen for their general stance across a range of policy issues, not all of which are equally important to the voters. Factors such as their record in office, character, local connections and competence can also influence election outcomes. It is therefore possible that a legislative majority elected, say, on its handling of the economy, may not necessarily be in agreement with the popular view on, say, a particular social- or foreign-policy decision. Representatives are typically chosen for a term of several years, and new issues may emerge that did not feature in previous election campaigns. The 4 International IDEA 2. What is the issue? public’s view of issues may also change between elections, such that the legislative majority and popular majority differ with respect to those issues. Representatives living in the capital and enjoying a privileged position can easily be influenced by special interests. They live in a world of expense accounts, foreign travel, official cars and high society—they can easily ignore the everyday needs and interests of those who elected them. Constitution-makers may therefore wish to consider mechanisms of direct and participatory democracy that have been developed to complement the representative process. International IDEA 5  Direct Democracy 3. Forms of direct democracy In this Primer, the term ‘direct democracy’ is used to designate mechanisms that enable the electorate to vote on a specific law, treaty, constitutional amendment, policy or other public decision. The main forms of direct democracy are referendums (the alternative plural form ‘referenda’ is also widely used) and citizens’ initiatives. 1. Referendums give the people a direct vote, which may be binding or advisory, on a specific political, constitutional or legislative issue that is referred to them by governing institutions (presidents, cabinets, parliaments etc.). The people’s role is usually limited to ratifying or repealing decisions that have already been taken by such institutions or to accepting or rejecting propositions that these governing institutions have put forward. 2. Citizen's initiatives give the electorate a direct vote, which may be binding or advisory, on a specific political, constitutional or legislative issue that is initiated by the people. They precede the decisions of governing institutions, and in some jurisdictions may even enable new laws or constitutional amendments to be adopted without the consent of the elected legislature. They are typically proposed by a petition with a certain number of signatures. Some mechanisms are difficult to classify. For example, the abrogative referendum in Italy has many characteristics of an initiative, in that it can be triggered by a public petition, but it is usually classed as a referendum because 6 International IDEA 3. Forms of direct democracy new laws cannot be proposed; it only allows people to vote retrospectively on repealing a law that has been enacted by parliament. The terminology for direct-democracy mechanisms is not standardized. Different terms are used in different counties to describe similar institutions and processes. Citizens’ initiatives are sometimes also known as ballot propositions or citizen-initiated referendums, depending on the jurisdiction and context. Referendums conducted at the discretion of the government have often been called plebiscites, a term that may have negative connotations in some contexts. For clarity, this Primer uses the terminology set out in Direct Democracy: The International IDEA Handbook (2008). Another mechanism that is frequently referred to as a form of direct democracy is the recall vote, which enables citizens, usually following a petition signed by a certain number of constituents, to vote on the removal from office of a representative or elected official. Recall does not, however, enable people to vote on a substantive legislative or policy decision, so it is best considered as a variation on the rules of a representative democracy; as such, it is not covered in this Primer. Think Point 1 What problems of representative democracy are evident in your country? Do political elites effectively serve and represent the people, or do they pursue their own personal or partisan interests? Are the majority of the people apathetic or disaffected from public life? How would direct democracy help citizens overcome these problems? Could it make them worse or create new ones? Institutions of direct democracy are found in a majority of the world’s constitutions. Referendums, in particular, have become widely accepted and increasingly frequent instruments of government in many parts of the world, and it is now unusual for a new constitution to be drafted without at least some provision for direct democracy. Think Point 2 How democratic should democracy be? Is it democratic—or even safe—to leave policymaking and legislation to specialized elites such as full-time politicians, civil servants and judges? What role should the citizens play in a democracy? How often, and by what means, should citizens take decisions? Is there such a thing as too much democracy? International IDEA 7  Direct Democracy 4. Direct democracy: advantages and disadvantages Arguments in favour of direct democracy Promoting participation Many theorists see public participation in democratic politics as an intrinsic good that is essential to human flourishing. Others argue that participation has great instrumental value, in helping to protect democracy from public apathy. Either way, the experience of meaningful participation in public decisions helps people to transcend personal concerns and encourages citizens to take care of the public good. It has been argued that the mere act of choosing representatives every few years provides insufficient engagement in political decision-making to develop the qualities of good citizenship. More frequent and direct participation would enable citizens to become more engaged in public life. Popular sovereignty Direct democracy is an expression of popular sovereignty—the right of the citizenry to decide on matters of fundamental importance, directly and authoritatively, without mediation by their representatives. This may be symbolically important, or may it be necessary for the legitimation of key decisions, such as establishing a new state or constitution. Giving voice and control to ordinary citizens Elected representatives may, once in office, put the interests of privileged elites before those of ordinary citizens, treating their position as a personal entitlement rather than a public office. Representatives from different parties may collude to 8 International IDEA 4. Direct democracy: advantages and disadvantages protect elite and incumbent interests at the expense of broader public interests. Direct democracy mechanisms have been adopted, in part, to counteract these tendencies. Depending on the precise rules adopted, referendums and initiatives may give direct voice to ordinary citizens, enabling the citizenry to protect general interests from betrayal by political elites. In Iceland in 2010, for example, a law on debt repayments that had been passed by parliament was referred to the people in a referendum and was defeated, with 98.1 per cent of the electorate voting against the measure. Unpacking the range of choices offered by parties Parties competing in elections typically put forward manifestos or platforms that set out their priorities for government, specific policy commitments or at least their general approaches to political questions. The winners of elections then claim a mandate to govern in accordance with these commitments. In most cases, however, voters can only choose between parties as a package, with little scope for influencing the content of this bundle of policy options. A party might win an election on the basis of its economic policy, but its manifesto may contain a particular measure that is deeply unpopular. Referendums and initiatives potentially enable citizens to separate out their preferences, voting on particular measures on their own merits, decoupled from election manifestos. They therefore provide an additional channel of public control over decision-making, and can ensure that legislation and public policy conform more closely to citizens’ preferences. Forcing incumbents to confront difficult issues Minority-triggered referendums or citizens’ initiatives may provide a way of forcing onto the political agenda an issue that the incumbent government or legislative majority would prefer not to confront. Resolving unexpected questions, authorizing changes in direction The election manifestos or platforms of political parties cannot provide for unexpected circumstances that may require new policies or drastic changes of political direction. A representative system gives incumbents broad latitude to respond to such unexpected circumstances, subject to their responsibility at the next election. However, if a government has to deviate substantially from its manifesto commitments or undertake a new and controversial policy without explicit electoral endorsement, this may result in a lack of legitimacy. Holding a referendum allows a government to seek popular endorsement and thus to legitimate a response to such changed circumstances. In Canada, for example, the Liberal government of Mackenzie King made an election promise in 1940 not to introduce military conscription, but later came under increasing military pressure International IDEA 9  Direct Democracy to do so. A referendum was held in 1942 to release the government from its commitments and to authorize the introduction of conscription. Settling controversy Referendums and citizens’ initiatives enable the people to express their clear will on a controversial matter. In so doing, they may settle the issue: once the people have spoken, debate can move on to other topics. Even if the first referendum on a given topic does not settle an issue, a second referendum usually will. For example, the referendums on abortion in Portugal (1998 and 2007) and on electoral reform in Ireland (1958 and 1968) were able to settle these issues in an authoritative way. Arguments critical of direct democracy Citizen information and competence Direct democracy demands from citizens a relatively high level of knowledge of issues that are sometimes complex. Concerns are often expressed that voters may not always have the capacity or necessary information to make well- informed decisions about the issue at stake. These objections, however, could arguably be made against all forms of democracy, not just direct democracy. In a democracy, people need to be informed about, and interested in, public affairs. Voter irrationality Although direct democracy lets the people speak, it is not always clear what they are trying to say. Referendums and citizens’ initiatives both address a particular question and are usually intended to settle that question in a clear and decisive way, but people do not always vote with that question alone in mind. Many unrelated factors, such as the standing of the political parties or their leaders, can have an influence on outcomes. For example, a 2011 referendum on electoral reform in the United Kingdom was defeated by a large majority, in part because many voters associated the proposed reform with the leader of the junior coalition partner, who was widely perceived to have lost the trust of the public. Voter fatigue If direct democracy mechanisms are used too often, and in particular if they are used to decide relatively complex and technical issues rather than important matters of principle, there is a risk of voter fatigue. Many voters, having neither the time nor the knowledge to make so many decisions for themselves, may disengage from the political process. Even in Switzerland, which has a very deep tradition of participatory democracy, it is rare for more than half of eligible voters to cast a ballot in referendums and initiatives; those with no strong view on an issue will typically abstain. This leaves decisions in the hands of the small (but 10 International IDEA 4. Direct democracy: advantages and disadvantages intense) minorities who turn out to vote. Voter fatigue can be mitigated by holding direct democracy ballots at the same time as other elections and (up to a point) by effective public information campaigns, but it is also worth considering turnout quotas (see below) in order to prevent situations where an intense minority can decide on behalf of the majority. Shifting or avoiding responsibility Politicians may use referendums to avoid responsibility for deciding difficult issues, especially issues on which the governing party or coalition is internally divided. By referring such matters to the people, politicians may seek to absolve themselves both from the obligation to provide leadership and from public accountability for the consequences of decisions taken. This may be criticized as a lack of principled leadership. Short-term versus long-term policies Direct democracy expresses public opinion on one issue at a particular time. It does not require voters to consider issues holistically, judging a party or coalition by its record over a course of several years. Excessive reliance on direct democracy may therefore encourage policies that are popular in the short term (e.g. tax cuts) to the detriment of long-term goals (e.g. reducing the public debt or investing in public services), as California’s experience has demonstrated. Governability and policy coherence Frequent use of direct democracy mechanisms may overload the political system, increasing expectations and placing more demands upon the state than it is able to respond to, thus weakening the legitimacy of the democratic system as a whole. If the people make a series of mutually incompatible decisions, it may also lead to policy incoherence. It is important therefore to consider the capacity of the state and the need for coherent policies in determining who can initiate a referendum and on which subjects a referendum can be held. Lobbying and special interests Referendums and citizens’ initiatives may sometimes be proposed by rich and powerful interests, acting to promote their own financial or social interests at the expense of the common good. The process of holding a referendum or citizens’ initiative may also unduly favour those with the money and resources needed to mount a strong campaign. In the United States, in particular, a growing literature is critical of California-style initiatives because of concerns regarding distortion of the process by well-funded, well-organized special interests. In order to mitigate this tendency, careful consideration needs to be given to the rules surrounding the use of referendums and initiatives, particularly those regarding signature gathering and campaign financing. International IDEA 11  Direct Democracy Conservative bias Some scholars have argued that referendums and citizens’ initiatives disproportionately favour conservative policies over progressive ones. Non-elite citizens are typically less educated and less cosmopolitan than elites, and may maintain more traditional or even reactionary values: transferring decision- making from (relatively elite) politicians to ordinary citizens can therefore hinder progressive reforms. Moreover, in a referendum campaign, the ‘no’ side, favouring the status quo, typically has a structural advantage over those who are advocating change (the ‘yes’ side is usually seen as having the burden of proof). Evidence for the regressive tendency of direct democracy is, however, disputed, as popular majorities have in many cases embraced progressive change at the ballot box. Authoritarian and populist abuse Historically, authoritarian rulers such as Napoleon in France, Franco in Spain, Pinochet in Chile, Marcos in the Philippines and Park Chung Hee in South Korea have used uncompetitive referendums to create a false veneer of democratic legitimacy. Referendums may also enable populist leaders to bypass legislative, judicial or constitutional restraints on their power by appealing to the masses. Referendums have been used in this way to justify a so-called self-coup, to marginalize domestic political opposition or to overturn constitutional prohibitions on re-election. Sometimes, however, the authoritarian abuse of referendums can backfire. In 1988, for example, Pinochet unexpectedly lost a referendum to extend his term of office, and his regime collapsed shortly thereafter. Cost and logistics Holding a poll is expensive. It can place considerable logistical burdens on electoral management bodies, local authorities, security services and other state agencies. It also demands a lot in terms of civic education and engagement from political parties and campaign groups. In developing countries, where resources are scarce, and where voting may be prone to violence, frequent reliance on direct democracy may be impracticable. Social conflict and minority rights Referendums and initiatives, particularly with a simple-majority adoption requirement, may deepen divisions in society, threaten the rights of minorities and increase racial, ethnic, linguistic or religious tensions. In 2012, for example, Latvia held a citizens’ initiative to amend the constitution to recognize the linguistic rights of the country’s Russian-speaking minority. The campaign further increased tensions between the Latvian-speaking and Russian-speaking 12 International IDEA 4. Direct democracy: advantages and disadvantages sections of the population. In a fragmented and weakly consolidated democracy, or in situations where a constitutional settlement involves delicately balanced compromises, the majoritarian effect of referendums could undermine agreements and undermine attempts to promote inclusive arrangements. Rules requiring supermajorities (e.g. a two-thirds majority of votes cast for a valid decision) or double majorities (e.g. a majority of votes cast overall, plus a majority of votes cast in a required number of constituent units) may, in some circumstances, help to overcome such concerns. Another approach is to constitutionally entrench minority rights and to exclude them from the scope of direct democracy, e.g. a proposed referendum might have to be certified by the Constitutional Court to ensure it does not violate minority rights before being voted upon. Polarization Direct democracy mechanisms usually require people to vote yes or no to a specific and often very controversial issue. Once the question has been set and the options have been decided upon, nuance may be lost, and opportunities for compromise may be limited. As such, direct democracy can polarize debate, exacerbate political divisions and increase the potential for destabilizing reactions such as boycotts or violence. Kenya’s constitutional referendum of 2005 is an example of a vote that had such a polarizing and damaging effect. Think Point 3 How might direct democracy affect expected policy outcomes? Who stands to gain? Can direct democracy lead to better policy decisions in the long term or hinder them? Direct democracy in the political system: occasional supplement or regular feature? In most jurisdictions, direct democracy provides an occasional supplement or corrective to a system of representative government. For example, Luxembourg has held only four referendums since 1919. In Sweden, only six referendums have been held in 80 years. In some countries, however, direct democracy has become a more integral part of the political system, enabling the citizens to share policymaking with their representatives on a much more frequent basis. Switzerland, to cite the most famous example, has held well over 100 national referendums and citizens’ initiatives in the last century, and it is not uncommon for several national, cantonal and local referendums and initiatives to be held at International IDEA 13  Direct Democracy stated intervals throughout each year. Likewise, the US State of California makes regular use of referendums and citizens’ initiatives, and it is not unusual for Californians to vote on 10 or more propositions each year. Between these extremes, there are several countries where mechanisms of direct democracy are neither very rare nor very frequent. Italy has held around 20 referendums since the restoration of democracy in 1946; Ireland has held almost 40 referendums since independence in 1922. A key question for constitution builders to consider, therefore, is whether direct democracy is intended to be an occasional supplement and complement to representative democracy, or whether it is intended to be used as a regular part of ordinary policymaking and legislation. The answer to this question will determine the approach to the subsequent constitutional-design questions, such as who can trigger a direct vote, the issues on which a direct vote may or must be held, whether the results are advisory or binding and much else besides. 14 International IDEA 5. Institutional choices and design considerations 5. Institutional choices and design considerations Mandatory referendums A mandatory referendum is a vote of the electorate that is called automatically under particular circumstances. Most typically, mandatory referendums are required to approve some or all constitutional amendments (e.g. in Australia, Botswana, Denmark, Ghana and Ireland). Other examples of mandatory referendums can be limited to very specific issues. In Iceland, for example, a mandatory referendum must be held on any proposal to change the established status of the Lutheran Church. Mandatory referendums may also arise from certain situations or decisions. In Latvia, for example, a referendum must be held if the president orders the dissolution of parliament (the decision being that either parliament is dissolved or the president is dismissed). About half of all countries have provisions for mandatory referendums of some sort (International IDEA 2008: 42). Optional referendums An optional referendum is a vote of the electorate that does not have to be held under a mandatory rule but that can be initiated at the option of political actors —most usually by the executive or legislature. The Constitution of Spain, for example, allows the government, with the consent of the lower house of parliament, to call a consultative referendum on any ‘political decision of special importance’. The explicit constitutional provision for optional referendums may be minimal. International IDEA 15  Direct Democracy For example, the Constitution of Luxembourg states simply: ‘The electors may be requested to pronounce themselves by way of a referendum in cases and under conditions to be determined by law.’ Countries whose constitutions make no special provision for direct democracy may nevertheless hold optional referendums under ordinary legislation. For example, Norway’s Constitution makes no mention of referendums, but several referendums have been held under ordinary law. A characteristic of optional referendums is that they are usually held only when it suits the government to do so, although governments may use this to beneficial effect, either to legitimize controversial policies or to settle a politically divisive issue. An example would be the 1992 referendum in South Africa, which enabled the government to show public approval for ending apartheid. Who can call a referendum or initiative? Although most optional referendums are called by the government, there are also some jurisdictions in which a legislative minority of a sufficient size may demand a popular vote on an issue. In Denmark, one-third of the members of the Folketing (parliament) can demand a referendum on an issue, even when it has already been decided by a majority of the assembly. In Iceland, the decision to call a referendum rests with the (non-executive) president, who does not necessarily reflect the government’s view. The number of signatures required for a citizens’ initiative or petition-triggered referendum can vary considerably from one jurisdiction to another. Setting a high minimum will make it more difficult for the process to be used, and will give disproportionate influence to those campaigns with effective signature-gathering power. A lower threshold, in contrast, is likely to result in more initiative votes or recalls being held, but it does not ensure that such efforts will be successful. Generally, the threshold should be low enough for the process to be accessible to citizens but sufficiently high to discourage their frivolous use. In Latvia, for example, the threshold is set at 10 per cent of electors. This figure would be very high in a large jurisdiction, but in a country the size of Latvia it allows about 100,000 people to initiate a referendum. In California, the threshold is 5 per cent of the votes cast at the latest gubernatorial election. Owing to California’s large population, this means that more than half a million signatures must be gathered—a figure that is difficult to reach without professional signature-gatherers. This has led to the complaint that California’s system favours rich and well-organized interests who can afford to pay for professional canvassers (Smith 2009). 16 International IDEA 5. Institutional choices and design considerations Rejective (veto) or abrogative The process by which a referendum or citizens’ initiative might be held varies according to whether the issue in question has already been passed into law. If a referendum is held on pending legislation, it is a rejective or veto referendum (in these cases, citizens are usually given an opportunity within a certain period of time to reject a law, after which, if they do not reject it, it comes into force). Where a referendum is held to repeal a law that has already come into force, it is known as an abrogative referendum. Binding or advisory The result of a referendum or citizens’ initiative may be legally binding, as determined by the law or constitution under which it is called, or it may be used by the authorities for advisory purposes only. In practice, advisory referendums are usually treated as politically, if not legally, binding, especially if the result is decisive, as governments will not wish to be seen to oppose the will of the people. Exclusion of certain subjects Certain subjects may be constitutionally or legally excluded from being the subject of a referendum. In Uruguay, direct democracy instruments cannot be used in relation to laws concerning fiscal policy or laws applicable to the executive power (e.g. pension laws for civil servants). In Italy, tax and budget laws, amnesties and pardons, and international treaties cannot be submitted to a popular vote, and the Constitutional Court is empowered to determine whether a request for such a vote is legal. The purpose of these restrictions is to protect the financial integrity of the state (in particular, with respect to the interests of its creditors and the responsibility of the government for management of the budget), to protect the state’s reputation in foreign relations or to uphold due process in the determination of individual rights. Moreover, budgets require complex trade-offs and carefully negotiated bargains between various state and societal interests: the general public is incapable of meaningful participation in these trade-offs. Turnout quotas A turnout quota is a rule specifying that the result of a referendum is not valid, binding or affirmative unless at least a minimum percentage of those entitled to vote in the referendum actually vote or unless the votes cast amount to a certain percentage of those entitled to vote. Turnout quotas exist in many jurisdictions. International IDEA 17  Direct Democracy In Denmark, for example, referendums on constitutional change require approval by a majority of votes cast and at least 40 per cent of the electorate. Turnout quotas can prevent intense minorities (small groups who care very strongly about an issue, and who are therefore highly motivated to vote) from imposing their will on silent majorities (who, feeling less passionate about the issue, are less inclined to vote). As such, turnout quotas may increase the legitimacy of the result. However, a very high turnout quota (e.g. above 50 per cent) may make it unduly difficult to change the status quo. Referendum provisions in federal constitutions Countries with federal, regionalized or highly decentralized constitutional systems may have additional referendum requirements that reflect the theory of dual sovereignty between the people of the country as a whole and the people of the constituent states or provinces. In Switzerland, for example, national constitutional proposals must be supported by a majority of citizens nationally and by a majority of the cantons in order to be successful. In Australia, likewise, a referendum on a constitutional amendment is passed only if it achieves an overall majority of the national vote and a majority in at least four of the six Australian states. Referendums may also be required to confirm any change in state boundaries (e.g. the Baden-Wurttemberg boundary vote in Germany in 1951) or to change any special privileges given to particular jurisdictions (e.g. changes to the Statutes of Autonomy in Spain). Federations can also permit considerable variation in the scope of direct democracy at the federal and state/ provincial level. German provincial constitutions and US state constitutions, for example, often make extensive provision for direct democracy at the state and local level despite the absence of federal referendums. Durability of the outcome Whether binding or advisory, it is not always clear for how long the result of a referendum is considered valid and applicable. Swedish voters rejected a proposal to switch from driving on the left-hand side of the road to the right-hand side in a 1955 referendum; in 1963, however, the Swedish Parliament passed a law that enacted this change without a further referendum. A related question concerns how often a proposal can be put to the people. It is not uncommon for referendums on the same issue to be held two or more times. Portugal voted twice on very similar abortion law proposals (1998, failed; 2007, passed). Scotland voted twice on the creation of a devolved legislature (1979, failed; 1997, passed). In Palau, a referendum on an agreement with the United States was voted upon seven times between 1983 and 1990 before being 18 International IDEA Government Formation and Removal Mechanisms International IDEA Constitution-Building Primer 17 Elliot Bulmer Contents 1. Introduction............................................................................................................. 3 Advantages and risks................................................................................................ 4 2. Content and scope.................................................................................................. 5 Applicability of this Primer to semi-presidential systems.......................................... 5 3. What is the issue?................................................................................................... 7 Principles of parliamentary democracy..................................................................... 7 Origins and development of parliamentary constitutionalism................................. 11 General consideration for constitutional designers.................................................. 12 4. Basic design options............................................................................................ 15 Minimal parliamentarism....................................................................................... 15 Negative parliamentarism....................................................................................... 17 Positive parliamentarism........................................................................................ 19 Further design issues in relation to government formation rules............................. 23 Further rules for government removal.................................................................... 27 5. Additional design considerations....................................................................... 31 Prime-ministerial term limits.................................................................................. 31 Appointment of ministers...................................................................................... 32 Should ministers be members of parliament?.......................................................... 32  Number of ministers.............................................................................................. 35 Communal representation in cabinet..................................................................... 35 Gender inclusion.................................................................................................... 37 Changes of government.......................................................................................... 37 6. Contextual considerations................................................................................... 39 Party system and electoral law................................................................................ 39 7. Decision-making questions................................................................................. 41 8. Examples............................................................................................................... 43 Negative parliamentarism....................................................................................... 43 Positive parliamentarism........................................................................................ 44 References................................................................................................................. 50 Annex.......................................................................................................................... 52 About the author.................................................................................................... 52 About International IDEA..................................................................................... 52 About this series..................................................................................................... 53 1. Introduction 1. Introduction Governments in parliamentary democracies are not directly elected by the people. Their democratic legitimacy is dependent on the support of Parliament (in a bicameral system, usually on the basis of support in the lower, or popularly elected, house). Governments are chosen on the basis of parliamentary confidence and will ultimately cease to hold office if they lose parliamentary confidence. A well-functioning parliamentary democracy requires a constructive, cooperative yet balanced relationship between the parliamentary majority and the government which leads, represents and is accountable to that majority. This enables the government to pursue coherent policies with the expectation of legislative support, while remaining responsible, through parliament, to the people. The government formation and removal rules are essential to this relationship. They determine the formal processes by which Parliament’s confidence in the government is expressed or withdrawn. All parliamentary democracies have such rules, but they are not always explicit in the text of the constitution. In some old parliamentary democracies, such as Canada, the Netherlands and New Zealand, the rules exist only as unwritten conventions, or are expressed in sub-constitutional documents such as a Cabinet Manual or in parliamentary standing orders. In more recent parliamentary constitutions, however, there has been a tendency to move towards a more explicit and formal expression of government formation and removal rules in the constitutional text. Such explicit formation and removal rules can be found in most of the constitutions adopted in the Commonwealth during the era of decolonization as well as in the parliamentary constitutions of Europe adopted after World War II or following the fall of the Berlin Wall. International IDEA 3  Government Formation and Removal Mechanisms Advantages and risks Since the government formation and removal rules concern who gains, holds and loses executive power, the stakes are high. There are obvious advantages, therefore, to having clear rules, which are seen to be fair and reasonable, and which avoid as far as possible procedural contests about who has the constitutional authority to govern. In the design of the government formation rules it is also important to consider how they contribute to both the stability and the accountability of the executive: if it is too easy to remove the government, there is a risk of instability; if it is too difficult to remove the government, then a lack of accountability may result. 4 International IDEA 3. What is the issue? 3. What is the issue? Principles of parliamentary democracy To design the government formation and removal procedures in the text of a constitution, it is first necessary to understand the underlying principles and mechanisms of parliamentary democracy. In a parliamentary democracy, the offices of head of state and head of government are separated. The head of state (typically an elected president or hereditary monarch) serves primarily as a ceremonial and civic representative of the authority of the state, who might perhaps have an occasional role as a constitutional guardian or arbiter. Meanwhile, policy leadership is provided by the head of government (typically a prime minister: see Box 3.1), who is, in effect, the chief executive and who leads the cabinet or council of ministers. Box 3.1. The prime minister: a note on terminology The term ‘prime minister’ is the usual English-language designation for the head of government in a parliamentary system, although other terms—such as first minister, chief minister, chancellor, head of government, president of the council (of ministers), minister of state, premier or minister- president—are sometimes applied in various linguistic and cultural contexts. The prime minister is not directly elected by the citizens, but is normally—at least formally—nominated or appointed by the head of state. However, the head of state may not have very much discretion in designating a prime minister, since International IDEA 7  Government Formation and Removal Mechanisms the first principle of parliamentary democracy is that the government must be chosen on the basis of parliamentary confidence. Confidence, used in this context, simply means support. A government is said to enjoy the confidence of parliament when a majority of the members of parliament politically support the government and give consent to its appointment and continuance in office. In bicameral systems, the confidence of the lower house is usually sufficient. A formal expression of this support and consent is known as a vote of confidence. The process of choosing a prime minister, and of selecting the other ministers who make up the government, is known as the government formation process. This typically occurs after the death, resignation or removal of the former prime minister, or following a general parliamentary election. The purpose of the government formation process is to choose and appoint a prime minister and a cabinet who enjoy the confidence of parliament and can govern effectively. The formal mechanism for choosing a prime minister varies. In some cases, the head of state may simply be expected, either by convention (e.g. Canada, Norway) or by explicit constitutional rules (e.g. Bangladesh) to appoint a prime minister who is likely to enjoy the confidence of parliament, leaving it up to the discretion of the head of state to identify and appoint such a person on the basis of parliamentary election results. Alternatively, the head of state may nominate a candidate for prime minister who is required to win the support of parliament in an investiture vote, held either before the appointment is made (e.g. Spain) or within a specified time immediately thereafter (e.g. Italy, Croatia). There are also examples of countries in which parliament may nominate its own preferred prime minister by resolution (e.g. Ireland), or where the prime minister is elected by parliament in a contested election (e.g. Solomon Islands); in these latter cases, the role of the head of state is limited to formally appointing the person who has been chosen by parliament. The ministers other than the prime minister are typically chosen by the prime minister. They are either directly appointed by the prime minister (e.g. Japan) or formally appointed by the head of state upon the nomination of the prime minister (e.g. India). In some cases, ministerial appointments may also require the approval of parliament, either because there is a specific vote to appoint ministers (e.g. Ireland) or because the government as a whole, and not just the prime minister, has to win the support of parliament in a vote of investiture (e.g. Italy). A prime minister who enjoys the confidence of parliament will usually be able to secure parliamentary approval for the appointment of a ministerial team, although the extent to which the prime minister has a free hand in these appointments often depends on whether they lead a single party government or are dependent upon the support and agreement of coalition partners. 8 International IDEA 3. What is the issue? Government formation is an intensely political as well as a legal process, and its nature and outcome can depend as much on political circumstances as on the written (or even unwritten) constitutional rules. Whether or not a formal election or vote of investiture is required, it is expected that the prime minister will usually be the leader, or the designee, of the majority party or coalition in parliament. If one party has the support of an overall majority in parliament, the leader of that party will normally have a rightful claim to be nominated as prime minister, leading to what is known as a majority government. In such cases, the government formation process may be a mere formality that takes only a day or two. If no party has won an overall majority in parliament, government formation may involve complex and protracted negotiations between political parties in an attempt to form a coalition government that enjoys the confidence of parliament. These negotiations may concern the party composition, personnel and policy direction of the government, and may take weeks or even months. The outcome of these negotiations may lead to the signing of a formal coalition agreement, setting out the policy agenda on which the coalition is united. Alternatively, a minority government (a government tolerated by the majority of members of parliament, but actively supported only by a minority) may be formed. This may have the formal backing of one or more other parties, who agree in return for negotiated policy concessions to support the government on votes of confidence and on approval of the budget—a so-called confidence and supply agreement—without entering into a full coalition. In some cases, a situation will arise where a government cannot be formed (leading to the dissolution of parliament and new elections). Once appointed, the government is responsible to parliament. In this technical sense, responsibility is more than just general parliamentary accountability, which is exercised on a regular basis through parliamentary committees, public enquiries, questions for ministers, plenary debates and so forth. It refers instead to the ability of parliament to remove a government by withdrawing confidence. This may be achieved by passing a vote of no confidence (or, in some jurisdictions, a vote of censure: see Box 3.2) or by rejecting a requested vote of confidence. For this reason, parliamentary democracy is sometimes known (especially in countries historically influenced by British traditions) as a system of responsible government. Withdrawal of parliamentary confidence will usually result in either: (a) the resignation or dismissal of the government; or (b) a dissolution of parliament leading to a new election. Which of these outcomes is International IDEA 9  Government Formation and Removal Mechanisms more likely will depend on the political situation and the constitutional rules in effect. Box 3.2. Votes of no confidence and votes of censure In some national constitutional traditions, a distinction is made between a ‘vote of censure’, which implies a parliamentary condemnation for wrongdoing almost akin to an impeachment, and a ‘vote of no confidence’, which simply reflects a change in parliament’s political choice and need not be associated with any specific wrongdoing by the government. In practice, however, these differences can be very slight. In many contexts the terms are often nearly synonymous and are sometimes used interchangeably. The essence of parliamentary democracy is a close relationship of mutual trust and harmonious cooperation, united by party loyalty, between the executive and legislative branches. The government in a parliamentary democracy is usually supported by the political party, or the coalition of political parties, forming the parliamentary majority. The prime minister and ministers are usually leading members of that majority, and the majority is usually content to allow the government to exercise broad discretion in determining the policy agenda and proposing legislation. So, without ignoring the limited but real influence that parliaments may have in shaping policy and amending legislation, the government in a parliamentary system normally expects parliament to support its legislative programme (minority governments, where the support of other parties might have to be won on an issue-by-issue basis, are an exception). However, the government can exercise this policy leadership role only so long as it retains the confidence of parliament. The approval by parliament of a formal vote of no confidence—usually on a motion proposed by the opposition—is a sign of a breakdown in this mutual trust, which will lead to the severing of this relationship. Depending on the rules and practices of the country, and on the political situation, this usually means either that the government must resign or that parliament must be dissolved and new elections held. ‘Refusal of supply’ (the failure of parliament to pass the budget on which the government depends for the supply of funds), or in some cases even the rejection of a piece of high-profile legislation that the government has declared to be a matter of confidence, may also be treated as a vote of no confidence and can also lead to the resignation of the government or to a dissolution of parliament. This system of concentrated but responsible power allows effective and coherent policymaking under the unified leadership of the prime minister to be coupled with clear lines of democratic accountability, through parliament, to the people. 10 International IDEA 3. What is the issue? Origins and development of parliamentary constitutionalism The first generation of parliamentary constitutions, adopted in the 19th century, allowed hereditary monarchs to retain formal executive power, including the right to appoint and dismiss ministers. In practice, as these countries democratized, a set of unwritten rules, known as constitutional conventions (see Box 3.3), developed alongside the formal constitutional rules. These conventions required executive powers to be exercised by a prime minister and cabinet who, although formally appointed and dismissed by the monarch, were in practice selected and retained on the basis of parliamentary confidence. This development happened organically in response to the extension of suffrage and the rise of organized political parties, without formal constitutional amendment. Box 3.3. Constitutional conventions The term ‘constitutional convention’ (lower case) refers to an unwritten but generally accepted constitutional rule of conduct which is politically (but not legally) binding. Note that it is not to be confused with the term ‘Constitutional Convention’ (usually capitalized), which is sometimes used to designate a constitution-making body distinct from the ordinary legislature, such as the Convention which drafted the US Constitution in 1787. By the early 20th century, there was a substantial gap in several parliamentary democracies between the legal wording of the constitution and the established practice of government according to constitutional conventions (with the latter often being more democratic than a formal, literal reading of their constitutional texts would suggest). This discrepancy between legal and conventional constitutionalism is still maintained in some long-established parliamentary democracies, whose written constitutions say very little about the process of government formation and removal. For this reason, older parliamentary constitutions (such as those of Australia, Canada, the Netherlands and Norway) can be misleading. They must be read in their own historical context, with an awareness of how conventional usage interacts with the formal text, and should be used as a model or example for constitution-builders elsewhere only with great caution. With the expansion of parliamentary democracy into newly independent states in the years after World War I (1914–18), new constitutions sought to recognize the principles of parliamentary government with regard to government formation and removal in clear, coherent, legally binding constitutional terms. The International IDEA 11  Government Formation and Removal Mechanisms inclusion of explicit government formation and removal rules in the text of these 20th-century constitutions was an important step forward in constitutional design. It placed parliamentarism on a legal-constitutional rather than merely conventional foundation. The advantages were both practical (in terms of increasing the clarity and certainty of the rules) and symbolic (in terms of proclaiming the democratic principle that the government should be chosen, through parliament, by the people and should be responsible, through parliament, to the people). This development was especially valuable as parliamentary democracy was adopted in countries where the existence of unwritten conventions could not be assumed, or where their content, applicability or authority was likely to be disputed. Therefore, most modern parliamentary constitutions include the rules and processes of government formation and removal, at least to some extent, in explicit terms in the constitutional text. General consideration for constitutional designers Some ways in which these rules can be formulated are discussed in the following sections. First, however, it is necessary to make a few general comments that will help to explain and contextualize those rules. Purposes of the rules The purposes of government formation and removal rules in a parliamentary constitution are: (a) to encourage and facilitate the prompt appointment of a government enjoying the support of parliament wherever this is possible or, where this cannot be achieved, to allow for the formation of a minority government with as much stability as possible; (b) to allow for the removal of a government if it ceases to enjoy the support of parliament. In other words, the rules should enable parliament to confer its confidence on the government and to enforce the responsibility of the government by withdrawing its confidence. Need for clarity and certainty There should never be any doubt about who has the confidence of parliament or about who is legitimately in government. The rules must therefore be unambiguous and must be written to cover all possibilities. This is necessary to avoid dangerous loopholes in the rules that could be exploited by unscrupulous political leaders and to also prevent situations of constitutional crisis in which the rules are unclear, cannot be applied or cease to be relevant. Executive–legislative balance of power If it is relatively easy for parliament to remove a government, this will put parliament as a whole in a position of power in relation to the government; there 12 International IDEA 3. What is the issue? is an increase in democratic responsibility, but perhaps at the cost of stable and effective government. If, on the other hand, it is difficult for parliament to remove a government, this will put the government in a more dominant position in relation to parliament; an increase in stability and effectiveness is likely, but at the cost of weaker democratic responsibility. In practice, much depends on the number of parties (whether the country has, for example, a dominant party, a competitive two-party system or a fragmented multiparty system). This, in turn, may depend on the electoral system. Constitutional designers crafting the rules on government formation and removal have to understand how they are likely to work in the current political situation, and also how they would work if the situation were to change in the future. Role of the head of state Influence over the choice of prime minister is one of the most important potential sources of power for a head of state. If the head of state can freely select and dismiss the prime minister, then policymaking authority is likely to shift into the head of state’s hands, thus making the system of government as a whole less genuinely parliamentary. So, if a parliamentary system in which the head of state plays only a ceremonial and non-political role is desired, it is very important to insulate the head of state from this choice—for example, by having parliament elect the prime minister, or by constitutionally restricting the degree of personal discretion allowed to the head of state in nominating a prime ministerial candidate. Yet even where the head of state’s actual influence on the choice of prime minister is minimal, it is usual for the head of state to retain at least a vestigial, formal and symbolic role in the appointment process (by formally nominating a candidate for parliament’s approval or by formally appointing the candidate nominated by parliament). This act formally confers legitimacy and authority on the prime minister. It should be noted that a small number of democracies (e.g. South Africa, Botswana and Nauru) have hybrid constitutions that are parliamentary in the sense that the government is dependent on parliamentary confidence, but that deviate from parliamentary norms because they are led by a president who is both head of government and head of state. In general, such systems require the formal election of the president by parliament (although it would also be possible for the speaker to play the part of a quasi-head of state in formally appointing the president and in receiving the president’s resignation). If such an arrangement is contemplated, careful thought needs to be given to the symbolic and constitutional consequences of losing the the traditional parliamentary distinction between head of government and head of state. International IDEA 13  Government Formation and Removal Mechanisms Dissolution If removing a government by means of a vote of no confidence risks triggering a dissolution of parliament, then members of parliament will be less likely to push for a vote of no confidence—since to do so may risk their own seats. On the other hand, if the government cannot simply dissolve parliament at will, then parliament will be in a much stronger position, potentially, to remove and replace governments between general elections without risking a premature dissolution. In any case, there must be harmony and internal consistency in the interaction of the government formation and removal rules and the dissolution rules, so that they work together to sustain a constructive, balanced, working relationship between parliament and the government. For more details on dissolution rules, see International IDEA Constitution-Building Primer No. 16, Dissolution of Parliament. 14 International IDEA 5. Additional design considerations 5. Additional design considerations Prime-ministerial term limits In some countries, it is technically incorrect to speak of the prime minister serving ‘terms’ of office; they simply serve from appointment to dismissal, so long as they retain the confidence of parliament, regardless of how many parliamentary elections take place during their tenure. In other jurisdictions—and in particular in those where a prime minister has to be formally elected, approved or invested by parliament after each general election—it does make sense to speak of prime ministers serving for a number of terms, although always with the caveat that a prime minister’s term can be terminated prematurely if parliament passes a vote of no confidence or if parliament is prematurely dissolved. In a very small number of cases, a prime minister may be limited to a certain number of such terms. In the Cayman Islands (article 49), for example, no one may be chosen as premier ‘who has held office as Premier during two consecutive parliamentary terms unless at least one parliamentary term has expired since he or she last held that office’. This means that, in effect, a premier cannot serve for more than eight years, and then would have to be out of office for up to four years. The pros and cons of such restrictions on re-election are beyond the scope of this primer, but it is worth noting that if one wishes to introduce term limits for the prime minister, there is at least one example of how this can be achieved by means of constitutional provisions. International IDEA 31  Government Formation and Removal Mechanisms Appointment of ministers In some countries, parliament’s confidence in the government is centred on the person of the prime minister, and the prime minister appoints and dismisses other ministers without a requirement for parliamentary approval. In Germany, for example, the Bundestag (lower house) elects and can remove the chancellor, but the chancellor can freely appoint and dismiss their other ministers without needing the approval of the Bundestag. Similarly, the Bundestag cannot remove an individual minister; their individual responsibility is only to the chancellor, and they can continue in office as long as they have the chancellor’s confidence. In others, the government as a whole needs parliamentary approval, and confidence is expressed not in the prime minister alone but in the government collectively. In Ireland, for example, ministers can only be appointed after they have received the previous approval of the lower house (article 13.1.2). In Italy, the vote of investiture approves the government—the prime minister and ministers—collectively (article 94). In principle, the former arrangement, as practiced in Germany, implies a more hierarchical, and less collegial, relationship between the prime minister and cabinet. The latter arrangement, exemplified by Ireland and Italy, emphasizes the collegiality of the government. In practice, much depends on the political situation. A loosely agreed coalition government will have to be more responsive to the needs of different parties in the appointment of the government, while a single-party majority government will tend to concentrate powers in the hands of the prime minister. This is because when a prime minister depends on coalition partners to sustain a parliamentary majority, those coalition partners may be in a stronger position to negotiate on the composition of the cabinet. Should ministers be members of parliament? Option 1: Ministers must be members of parliament In some countries, the rule is that all cabinet ministers must be appointed from among members of parliament. This arrangement is common in those countries that were influenced by the British-derived Westminster model, such as Australia, Barbados and Ireland, and many other places. Requiring ministers to be members of parliament emphasizes the closeness of the relationship between the executive and legislature, leadership of both being 32 International IDEA 5. Additional design considerations concentrated in the cabinet. In essence, the cabinet is a sort of executive committee of the legislature, which leads, but at the same time is always responsible to, the parliamentary majority. The recruitment of ministers solely from the ranks of parliamentarians means that governments are always deeply embedded in parliamentary politics. Ministers usually have several years of parliamentary experience before becoming ministers and are therefore thoroughly acculturated to parliamentary norms. This close connection is sustained on a daily basis as ministers attend parliamentary sessions, take part in debates and justify their actions to their peers in parliamentary questions. It also integrates government in parliamentary life, preventing the formation of extra-parliamentary technocratic cabinets and in many cases also requiring ministers, as constituency representatives, to remain in touch with public opinion as expressed in constituency correspondence and casework. In countries following this model, it is also often a rule that persons who were members of parliament immediately prior to dissolution can continue to serve in ministerial office for a limited period, usually ending a few months after the next elections. This prevents difficulties that might otherwise arise if a minister has to be appointed while parliament is dissolved and also enables a government to remain in office in a caretaker capacity, even if its members are defeated in the election, until a new government can be appointed. The disadvantage of having to appoint ministers exclusively from among the members of parliament, however, is that it limits the field from which ministers may be recruited. The available candidates for ministerial office might not be the best, especially since the qualities required to be a successful parliamentarian and good constituency representative are not necessarily those required to be a good minister. Likewise, a competent minister who happens to lose his or her seat will be excluded from office, unless a way can be found (such as by means of a by- election) for that person to re-enter parliament. Moreover, having to juggle ministerial with parliamentary and perhaps also constituency duties places considerable demands on the time, energy and resources of ministers; it has been argued that this distracts ministers from their strategic leadership and policymaking functions, resulting in a less competent government (King and Crewe 2013). Option 2: Ministers cannot be members of parliament In other countries, ministerial office and parliamentary office are mutually exclusive. Ministers may be (and often are) appointed from outside of parliament, and members of parliament who are appointed to ministerial office have to resign their parliamentary seats. This arrangement is found more often in countries that derive their parliamentary institutions from continental European traditions, such as the Netherlands. International IDEA 33  Government Formation and Removal Mechanisms This arrangement means that some partial separation of the legislative and executive powers is maintained. Although the government, in a parliamentary system, must have the confidence of parliament and is responsible to parliament, and although the ties of partisanship that bind ministers to the parliamentary majority may still be strong, the fusion of executive and legislative powers is impeded by the fact that a person cannot be a member of both the government and parliament at the same time. This separation of personnel opens up two alternative career paths for politicians: a ministerial path that involves distancing oneself from parliament to go into executive office, and parliamentary path that involves eschewing ministerial office to concentrate on legislative leadership and committee work. This may cause the legislature to have a stronger collective sense of itself as a separate institution vis-à-vis the executive, with a partial separation of powers notwithstanding the principle of parliamentary confidence. This, in turn, may result, especially when combined with a proportional electoral system, in a more active legislature that is divided less along the rigid lines of government and opposition benches, and that has a stronger role in scrutiny and law-making— although there may be some consequent loss of executive stability. This arrangement also makes the appointment of extra-parliamentary cabinets composed of technocratic ministers without any clear political base of support more feasible. While this may help the state to weather certain political crises, when a government cannot otherwise be formed, there is some risk that over- reliance on technocratic cabinets may undermine the role of parties and thereby destabilize democratic politics in the longer term (Skach 2010). Even though ministers cannot be members of parliament, they may be authorized or required to attend parliament, in a non-voting capacity, to make statements and to answer questions. Option 3: Mixed approaches There are various mixed approaches that a country might adopt. One possibility is to allow ministers to be appointed from among the members of parliament but not to make membership of parliament a requirement. This is potentially a flexible approach, the effect of which is likely to depend on prevailing customs and patterns of ministerial appointment. Another possibility is to allow a certain number of ministers to be appointed from outside of parliament, while others must be chosen from among the rankings of parliamentarians. In Japan, a majority of cabinet ministers must be members of parliament (article 68), with the implication that a minority need not be. In Bangladesh, the Constitution requires that nine-tenths of the ministers be appointed from among the members of parliament, but allows up to one-tenth to be appointed from outside of parliament (article 56). 34 International IDEA 5. Additional design considerations In both examples, the prime minister must be chosen from among the members of parliament. This prevents the formation of entirely technocratic, extra-parliamentary governments and ensure that the government is firmly rooted in a parliamentary party with some democratic legitimacy. However, it also allows for a certain number of non-parliamentarians to be recruited to the government on the basis of specialist skills, qualifications and experience. Number of ministers If ministers can be appointed from among the members of parliament, there is a risk that the government can dominate parliament by appointing a large number of members as ministers. The doctrine of collective responsibility means that ministers cannot vote against the government in parliament (unless, in exceptional circumstances, they are willing to resign from ministerial office). The ‘payroll’ vote, as it is called (because ministers are on the government’s payroll) can be very influential in securing the loyalty and obedience of backbench parliamentarians. Governments may attempt to appoint oversized cabinets, or a large number of junior ministers, to increase the influence of the payroll vote. As well as weakening parliament, this tactic can lead to bloated, inefficient government. To prevent this, some constitutions place limits on the number of ministers that may be appointed and hold office at any time. The Constitution of India (article 75), for example, restricts the number of ministers to 15 per cent of the total number of members of the lower house. The payroll vote is articularly a problem in very small parliaments. The Parliament of Gibraltar, for example, has just 17 members, 10 of whom are ministers. In these conditions, the distinction between legislative and executive functions is lost, and there is no realistic possibility of parliament, as a body, exercising effective control over ministers. In Belize, the Constitution (section 40(2)) seeks to prevent this by limiting the number of Ministers to two-thirds of the number of members of the majority party in the lower house. Communal representation in cabinet If it has been decided to accommodate societal divisions through consociational power-sharing mechanisms, this may have to be reflected in the composition of the cabinet, and therefore in the government formation process. In Belgium, for example, the Constitution mandates that the cabinet include an equal number of Dutch-speaking and French-speaking ministers (article 99). International IDEA 35  Government Formation and Removal Mechanisms In Bosnia and Herzegovina, the Constitution requires that no more than two-thirds of the cabinet ministers be appointed from one of the country’s two state entities, with the other third being appointed from the other entity (article V.4). In the devolved administration of Northern Ireland, the Assembly elects a first minister and a deputy first minister. These represent different communities: if the first minister comes from the Protestant community, the deputy first minister must come from the Catholic community (and vice versa) (Northern Ireland Act 1998 [UK], section 16A). In the interim constitution of South Africa (1994–96), any party winning at least 5 per cent of the votes was entitled to be included in the cabinet. This was to ensure that the cabinet was representative of all aspects of a racially diverse society, including the white minority (section 88). Such provisions can have disadvantages. For example, they may make forming a government more difficult, since it might be not only necessary to win the support of a parliamentary majority but also to pay attention to the composition of that majority to ensure it represents a sufficiently broad base. Or these provisions may result in such large, heterogeneous coalitions that effective, programmatic government is hindered. There is also the argument that entrenching such communal divisions in the constitution causes these divisions to become more, not less, salient, and prevents the formation of a unified sense of national identity. Of course, these disadvantages may well be worthwhile, given that the alternative could be the break-up of the state or inter-communal violence. Another option that may potentially be open to constitution-makers in such circumstances is to adopt a highly proportional electoral system, with a very low minimum threshold for representation. This means that small minorities can be represented in parliament, but without any constitutional requirement for minority inclusion in the cabinet. This may be effective as a means of flexible (rather than rigidly prescribed) power-sharing, especially in situations where there is no one natural majority and where the lines demarcating different communities are more fluid. In the Netherlands and Israel, for example, this approach has resulted in inclusive, multiparty governments that have bridged religious–secular divisions. However, this may also lead to problems, such as a lack of a clear link between parliamentary election results and the formation of a government (due to the fact that post-election bargaining is the key determinant of government office), long delays between parliamentary elections and the completion of the government formation process, and the excessive fragmentation of parliament— which may lead to immobilism. 36 International IDEA  12 Federalism International IDEA Constitution-Building Primer © 2017 International Institute for Democracy and Electoral Assistance (International IDEA) Second edition First published in 2015 by International IDEA International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. The electronic version of this publication is available under a Creative Commons Attribute-NonCommercial- ShareAlike 3.0 (CC BY-NC-SA 3.0) licence. You are free to copy, distribute and transmit the publication as well as to remix and adapt it, provided it is only for non-commercial purposes, that you appropriately attribute the publication, and that you distribute it under an identical licence. For more information on this licence visit the Creative Commons website: International IDEA Strömsborg SE–103 34 Stockholm Sweden Telephone: +46 8 698 37 00 Email: [email protected] Website: Cover design: International IDEA Cover illustration: © 123RF, Produced using Booktype: ISBN: 978-91-7671-117-0 Contents 1. Introduction............................................................................................................. 3 Advantages and risks................................................................................................ 3 2. What is the issue?................................................................................................... 4 3. Advantages and disadvantages of federalism..................................................... 6 The rationale for federalism...................................................................................... 6 Coming together and holding together..................................................................... 7 Other potential advantages of federalism.................................................................. 9 Potential disadvantages of federalism...................................................................... 10 4. Distribution of powers.......................................................................................... 13 Distribution of legislative powers........................................................................... 13 Distribution of executive powers............................................................................ 15 Which powers should be exercised at which level?.................................................. 16 Socio-economic effects of the distribution of powers.............................................. 18 Development and availability................................................................................. 19 5. Asymmetrical federalism...................................................................................... 21 Symmetry and asymmetry...................................................................................... 21 Government of territories and dependencies.......................................................... 22 6. The boundaries of constituent units................................................................... 24 1. Introduction 1. Introduction Federalism is a constitutional mechanism for dividing power between different levels of government so that federated units can enjoy substantial, constitutionally guaranteed autonomy over certain policy areas while sharing power in accordance with agreed rules over other areas. Thus, federalism combines partial self- government with partial shared government (Elazar 1987). Federal systems are usually associated with culturally diverse or territorially large countries. Notable examples of federal countries (or countries with federal- like characteristics, sometimes referred to as ‘quasi-federations’) include Argentina, Belgium, Brazil, Canada, Germany, India, Malaysia, Nigeria, Pakistan, Spain, South Africa and the United States. Advantages and risks Federalism is a means of ensuring peace, stability and mutual accommodation in countries that have territorially concentrated differences of identity, ethnicity, religion or language. Federalism, especially in large or diverse countries, can also improve service delivery and democratic resilience, ensure decisions are made at the most appropriate level, protect against the over-concentration of power and resources, and create more opportunities for democratic participation. However, while federalism has helped some countries settle conflicts or improve governance, it can also exacerbate existing differences, sometimes leading to deeper conflicts or state failure. Federalism is also a complicated, often legalistic, form of government, which can be expensive and can hinder the coherent development and application of policies. International IDEA 3  Federalism 2. What is the issue? Federalism is a system of government that establishes a constitutionally specified division of powers between different levels of government. There are usually two main levels: (a) a national, central or federal level; and (b) a state, provincial or regional level. In some cases, however, a federal system may prescribe a three-fold distribution of power by recognizing the constitutional powers of local government (e.g. South Africa) or by creating complex forms of overlapping territorial and linguistic federalism (e.g. Belgium). Federalism thereby allows distinct communities, defined by their territorial boundaries, to exercise guaranteed autonomy over certain matters of particular importance to them while being part of a larger federal union through which shared powers and responsibilities are exercised over matters of common concern. To achieve this, the components of a federal system include, in addition to legislative and executive (and sometimes judicial) institutions at each level of government, a relatively rigid constitution that sets out the distribution of powers among the various levels of government and a supreme judicial body that is responsible for adjudicating disputes between them. There are two main contexts in which federalism may be considered. Identity federalism occurs when two or more culturally, linguistically, religiously or otherwise distinct national communities have enough commonality of interest or identity to make them want to live together in one polity, but enough distinctiveness of interest or identity to make them demand substantial autonomy within that polity (e.g. Canada, Switzerland). Efficiency federalism occurs when a culturally homogeneous but geographically large nation wishes to improve democratic representation and accountability by decentralizing power and giving greater control over resources and policies to 4 International IDEA 2. What is the issue? local people while maintaining national unity and the ability to act coherently in matters of national policy (e.g. Germany, Argentina). Federalism attempts to reconcile a desire for unity and communality on certain issues with a desire for diversity and autonomy on others (see Figure 2.1). The question of whether federalism is suitable for a given country (and, if so, what form federal institutions should take and to what extent the federal principle should be applied) therefore depends chiefly on the balance between common interests or identities, on the one hand, and divergent interests or identities, on the other. Figure 2.1. Federalism as unity in diversity International IDEA 5  Federalism 3. Advantages and disadvantages of federalism The rationale for federalism Federalism is offered as an institutional solution to the problems associated with scale and diversity. Scale The origins of democracy can be traced to ancient and medieval city states where citizens were able to participate directly in political life. Historically, it was thought that democracy was possible only in small states, where decisions were made through face-to-face discussions in the town square. The development of representative institutions enabled democracy to be practised on the scale of the nation state, but the problem of scale still remained. Increasing the size of the political unit has a number of consequences. As the geographical distance between the government and the people grows, the more difficult it becomes for the people to make their voices heard, the more elites at the centre begin to dominate the political process and the less likely it becomes that the rulers will understand the needs, aspirations and priorities of the people. This can lead to unpopular, inappropriate and unworkable policies, as well as to a sense of alienation and frustration that can damage the reputation of the political system as a whole. Federalism can help resolve this problem, since it enables substantial powers to be exercised at the state or provincial level, in order to give people greater opportunities to exercise democratic control and to tailor policies to their own needs, while entrusting to the centre only those powers that need to be handled centrally. 6 International IDEA 3. Advantages and disadvantages of federalism Diversity One of the main benefits of federalism is that it provides a framework for the recognition of ethnic, religious, linguistic or other cultural communities, reflecting their desire to be recognized as a people with a distinct identity and particular interests. By guaranteeing substantial autonomy to such groups, federalism can allow them to exercise partial self-government through state, provincial or regional institutions while still sharing certain functions with other communities through federal or national institutions. By satisfying demands for autonomy and recognition, a federal constitution may protect minorities, prevent conflict, increase the legitimacy of democratic institutions and reduce pressure for secession. However, federalism (at least as it has traditionally been understood and practiced) is appropriate only where these communities are territorially concentrated; if ethnic, religious or linguistic communities are not concentrated in particular geographical areas, other ways of combining self-rule with shared rule might be preferable (see section 10 of this Primer on possible alternatives to federalism). Federalism is therefore ‘suitable for some countries, [but] not all’ (Anderson 2008: 12). Small and homogeneous countries, if viable as independent units, will generally have little reason to consider federalism. In a large country, or one with distinct territorially concentrated minorities, federalism is likely to be high on the agenda. Coming together and holding together Historically, small states that were confronted by common enemies or existential challenges would sometimes come together in unions, leagues or confederations that were bound together by a treaty or founding agreement. This would enable these states, without sacrificing autonomy in most aspects of domestic policy, to share certain powers and functions, particularly in relation to foreign affairs, defence and trade. In several respects, however, these early unions were more like today’s intergovernmental organizations than modern federal countries. Their confederal assemblies were conventions of delegates from the states, not truly national parliaments. The United States, under the Articles of Confederation (1781–89), was initially such a loose union. Congress had no direct ability to levy taxes and was dependent upon the state governments to execute its decisions. In response to these shortcomings, the US Constitution created a new type of federation that was able to produce a more cohesive union while still respecting the reserved rights of the states in many domestic matters. Enacted in the name of ‘We the people’ (not ‘We the peoples’), this new Constitution was not a treaty between International IDEA 7  Federalism sovereign states but the constituent act or fundamental law of a new, composite, federal state. The federal government did not derive its powers from the states but directly from the people of the United States as a whole. Under it, US citizens would be subject to two overlapping authorities—the federal and the state governments—each having direct legislative power in their respective constitutionally prescribed spheres of competence. This created the model from which all subsequent federal systems have been (directly or indirectly) derived. Through successive waves of democratization, federalism has spread around the world. Federal systems can now be found in emerging and consolidated democracies; in common- and civil-law jurisdictions; in countries with presidential, semi-presidential and parliamentary executives; and on every inhabited continent. As federalism has spread, and as the number of names by which federalism is known has grown (see Box 3.1), it has increasingly been used as a means by which an existing state can decentralize power and, as such, has become a tool for holding large or diverse countries together in the face of autonomist or secessionist pressures. Thus we see two approaches to federalism: a ‘coming together’ federalism in which formerly independent countries unite into a federal state, and a ‘holding together’ federalism in which a formerly unitary state seeks a federal solution to the problems of scale and diversity. Box 3.1. A note on terminology Federal systems do not always use the term ‘federal’ to describe themselves. The federal level may also be known as a ‘national’, ‘central’ or ‘union’ government. Constituent units may be known by a variety of names, including ‘states’ (Australia, Malaysia, USA), ‘provinces’ (Argentina, Canada, South Africa), ‘regions’ (Belgium, Italy), ‘cantons’ (Switzerland), ‘autonomous communities’ (Spain) or ‘Länder’ (Austria, Germany). These differences in terminology do not necessarily correspond to any particular formal models of federalism or to the substantive distribution of powers. In this Primer, the terms ‘constituent unit’ and ‘subnational unit’ are used interchangeably as a generic descriptor for such entities. Some such entities claim a distinct national identity or have a recognized national status, and the use of the term ‘subnational’ is not to be read as implying a denial of any such claim or recognition. 8 International IDEA 3. Advantages and disadvantages of federalism Other potential advantages of federalism Federal government is rooted in constitutionalism and pluralism Federalism requires power-sharing between federal institutions and those at the subnational level, such that neither level of government has absolute power. A well-functioning federal system is by definition constitutional and pluralist, since it is based on discussion and negotiation between balanced centres of power and the recognition of minorities under a broad framework of agreed constitutional rules. According to Filippov and Shvetsova:... successful federalism requires all of its benefits: well functioning democratic institutions, [a] judicial system, integrated national political parties and appropriate electoral incentives created by democratic political competition. The basic finding of the literature is that only in well functioning democracies can federalism be a stable and effective form of government. And conversely, outside of the democratic context, federalism is ultimately an unstable form, which logically progresses either to territorial disintegration or to becoming a mere constitutional formality (2013: 167). The power-sharing base is broadened Federalism allows political groups that are minorities on the federal or national level to hold office at the state or provincial level. This can have a beneficial effect in promoting political inclusion and a balance of power in countries with a dominant party at the national level. In South Africa, for example, the African National Congress party has won large majorities at every national election since the transition to democracy in the 1990s, but the opposition Democratic Alliance has enjoyed power in the Western Cape Province. The broader base of office- holding at subnational levels may also provide greater opportunities for women, ethnic minorities, poor people and other traditionally under-represented demographics to be elected to office. Innovative and pragmatic approaches to policy development are encouraged By allowing subnational units to develop their own policies to meet their own needs, federalism can promote innovation and experimentation in policymaking, enabling states or provinces to pioneer innovative policies that would not be politically viable at the national level. In 2006, for example, the US state of Massachusetts was able to establish a quasi-public health insurance system that International IDEA 9  Federalism greatly expanded access to medical care for low-income citizens despite the absence of such a provision at the national level. The burden on central authorities is reduced Federalism frees the central government from having to handle much of domestic administration and service delivery, enabling it to focus on strategic challenges and national priorities. Resources are shared across geographical space Federalism is a way of ensuring the wider distribution of public resources through revenue sharing and other forms of fiscal arrangements that guarantee an agreed share of resources to all areas of a country. Federalism may also encourage more geographically diverse economic and social development, in contrast to a unitary state where everything—money, power, culture—gravitates to the capital. Capacities and democratic responsibilities are developed State, provincial or regional institutions provide a useful training ground for citizens, representatives and public officials. In a centralized country, politics takes places in the capital, and those who are far removed from the capital have few opportunities to participate in holding office and making decisions; in a federal country, many more people have the opportunity to participate in public life. Potential disadvantages of federalism Duplication of work and lack of coherence Federalism can duplicate government functions and lead to the delivery of overlapping or contradictory policies at different levels of government. Although constitutions often attempt to specify which level of government has primacy in each area of policy, many policies cut across these functional boundaries or can affect other policies in unpredictable and undesirable ways. As a consequence, the responsibility of each level of government for policy outcomes and service delivery may be hindered by the actions or inactions of other levels of government. It can become difficult for citizens to know where responsibility lies and to use this information to hold public officials to account. Additional operating costs Maintaining multiple levels of government is expensive. More public institutions means higher costs for offices, staff, salaries and allowances, and meeting these costs may place a heavy burden on the treasury of a less economically developed country. 10 International IDEA 3. Advantages and disadvantages of federalism Increasing regional discrepancies of wealth, resources and outcomes Unless an effective mechanism for revenue sharing is in place (requiring richer states or provinces to subsidize poorer ones), federalism can lead to increased inequality between subnational units because of their different natural resources or other revenues or levels of development. Federalism may also cause a widening disparity of outcomes in terms of the provision and quality of public services. Harmful economic competition between subnational units A related point is that if the unit of social and economic regulation is smaller than the unit of free trade and of capital movement (e.g. if working conditions or environmental regulations are determined by subnational units), then a ‘race to the bottom’ might result, as subunits compete to attract capital by lowering wages and costs. This can undermine solidarity and make it more difficult to pursue economically progressive policies. Judicialization of politics A strict constitutional division of power between levels of government may result in an increased political role for the judiciary, as disputes between the competences of national and subnational institutions are resolved in the courts rather than through elected legislatures. In all democratic countries it is necessary to maintain a careful balance between the independence and neutrality of the judiciary, on the one hand, and the responsiveness and inclusivity of the judiciary on the other, but in federal countries striking such a balance is particularly important. Potential exclusion of minorities While federalism can provide opportunities for autonomy and recognition for cultural minorities, it can also expose minorities within constituent units to discrimination and oppression, particularly if states/provinces/regions are established on ethnic, linguistic, cultural or religious lines but contain within them minorities bel