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Semi-Presidential Government in the Post-Authoritarian Context

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Semi-Presidential Government in the Post-Authoritarian Context

Abstract

The semi-presidential system is a form of government in which a directly elected president shares executive power with a prime minister and government appointed by, and serving with the continuing confidence of, a democratically elected legislature. The system is characterized by two sites of executive power, each with a separate electoral mandate. Semi-presidentialism offers a middle ground between “pure” presidential and “pure” parliamentary systems of government. The dual executive structure of the model is a move away from a purely presidential system of government. At the same time, political conditions in democracies emerging from authoritarianism may not be ripe for parliamentary government, especially if party structures are weak and parties have little experience with true electoral and parliamentary democracy. A dual executive structure, therefore, might be especially attractive to new or transitioning democracies. The influence of a country’s historical experience can further influence its choice of post-authoritarian system. Where semi-presidential government precedes the transition to democracy, there is a likelihood that semi-presidential government will emerge after the transition. Historical bias towards a system with which people are familiar may lead to greater support for that system over any other. The architects of a post-authoritarian semi-presidential system have an opportunity to learn from the experiences of authoritarian government under the previous semi-presidential system, and design a system that guards against these risks. This Working Paper considers the options available for structuring the semi-presidential system under three headings: constitutional architecture; the distribution of executive powers; and security and emergency powers.
Center for Constitutional Transitions at NYU Law
SEMI-PRESIDENTIAL GOVERNMENT
IN THE POST-AUTHORITARIAN CONTEXT
Richard Stacey and Sujit Choudhry
Center for Constitutional Transitions at NYU Law
The Center for Constitutional Transitions at NYU Law constitutionaltransitions.org
About the Center for Constitutional Transitions at NYU Law
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1
SEMI-PRESIDENTIAL GOVERNMENT
IN THE POST-AUTHORITARIAN CONTEXT
Richard Stacey* and Sujit Choudhry
* Director of Research, Center for Constitutional Transitions at NYU Law.
Cecelia Goetz Professor of Law and Faculty Director, Center for Constitutional Transitions at NYU Law.
Executive Summary
The semi-presidential system is a form of government
in which a directly elected president shares executive
power with a prime minister and government
appointed by, and serving with the continuing
confidence of, a democratically elected legislature. The
system is characterized by two sites of executive
power, each with a separate electoral mandate.
Semi-presidentialism offers a middle ground between
pure presidential and pure parliamentary systems
of government.
The dual executive structure of the model is a move
away from a purely presidential system of
government. At the same time, political conditions in
democracies emerging from authoritarianism may not
be ripe for parliamentary government, especially if
party structures are weak and parties have little
experience with true electoral and parliamentary
democracy. A dual executive structure, therefore,
might be especially attractive to new or transitioning
democracies.
The influence of a country’s historical experience can
further influence its choice of post-authoritarian
system. Where semi-presidential government precedes
the transition to democracy, there is a likelihood that
semi-presidential government will emerge after the
transition. Historical bias towards a system with which
people are familiar may lead to greater support for
that system over any other. The architects of a post-
authoritarian semi-presidential system have an
opportunity to learn from the experiences of
authoritarian government under the previous semi-
presidential system, and design a system that guards
against these risks.
This Working Paper considers the options available for
structuring the semi-presidential system under three
headings: constitutional architecture; the distribution
of executive powers; and security and emergency
powers.
CONSTITUTIONAL ARCHITECTURE
The basic structural features of a system of
government can be thought of as that system’s
constitutional architecture. In the semi-presidential
system of government, precisely because it blends
features of pure presidential and pure parliamentary
systems, the following features of constitutional
architecture are important:
1. Government formation;
2. Government dismissal;
3. Dissolution of the legislature; and
4. Presidential term limits and mid-term removal of
the president.
DISTRIBUTION OF EXECUTIVE POWER AS A
MECHANISM OF CHECKS AND BALANCES
As a system of government characterized by a dual
executive, the distribution of power between the
president and the prime minister is a key
consideration. Where the balance of power between
the two executive leaders favors one over the other,
there is a danger that the benefits of the system, as a
middle ground between presidentialism and
parliamentarism, will be undermined. Subject areas
where the distribution of power between president and
prime minister is critical to the success of a semi-
presidential system are:
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
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1. Domestic and foreign policy;
2. Decree authority;
3. Appointment of senior officials to the civil
services and bureaucracy;
4. Chairmanship of the cabinet;
5. Veto powers.
SECURITY AND EMERGENCY POWERS
The distribution of security and emergency powers
between the president and prime minister warrants
special attention. Whether a president exercises
control over the security forces, and has the ability to
declare a state of emergency and exercise emergency
powers, will affect the balance of power in a semi-
presidential system. It is important that constitution-
makers carefully consider who holds the following
powers:
1. Commander-in-chief powers such as:
a. Declarations of war and states of emergency;
b. Deployment of the armed forces domestically
and abroad;
2. Powers to appoint the cabinet members
responsible for security and defense; and
3. Powers to appoint senior bureaucrats in the
security and defense infrastructure.
Further, the constitutional rules governing the state of
emergency require special attention. While the rules
that constrain executive powers during emergencies
are important in any system of government, they are
of particular concern in semi-presidential systems
because of the opportunities that emergency powers
may create for one of the two executive leaders
(usually the president) to side-line or undermine the
political interests represented by the executive leader
that is not granted emergency powers (usually the
prime minister). For this reason, rules governing the
following require consideration:
1. Who has the power to declare a state of
emergency?
2. How long can a state of emergency last?
3. Under what conditions can a state of emergency
be declared?
4. What are the substantive limitations on the
exercise of emergency powers?
This Working Paper considers a range of options
available for a semi-presidential system under each of
these three topics of constitutional design. Underlying
the discussion of these options is the recognition that
semi-presidentialism is adopted as a middle ground
between two pureforms of democratic government,
and is intended to avoid risks associated with each of
these pure forms.
Further reading
Brown, Nathan: Constitutions in a Nonconstitutional
World: Arab Basic Laws and the Prospects for
Accountable Government (Albany: SUNY Press, 2002).
Cheibub, José Antônio: Presidentialism,
Parliamentarism, and Democracy (New York:
Cambridge University Press, 2007).
Choudhry, Sujit and Richard Stacey: Semi-
Presidentialisn as Power Sharing: Constitutional
Reform After the Arab Spring (Cairo and New York:
Center for Constitutional Transitions at NYU Law and
International IDEA, 2014), available at
http://constitutionaltransitions.org/publications/semi-
presidentialism-as-power-sharing/.
Choudhry, Sujit and Richard Stacey: Semi-
Presidentialism as a Form of Government: Lessons for
Tunisia, in Zaid Al-Ali and Richard Stacey (eds),
Consolidating the Arab Spring: Constitutional
Transition in Egypt and Tunisia, International IDEA and
the Center for Constitutional Transitions at NYU Law,
June 2013, available at
http://constitutionaltransitions.org/working-paper-
no1/.
Duverger, Maurice:A New Political System Model:
Semi-presidential Government”, (1980) 8/2 European
Journal of Political Research, 16587.
Elgie, Robert: Semi-presidentialism: Sub-Types and
Democratic Performance (Oxford: Oxford University
Press, 2011).
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
3
Elgie, Robert, Moestrup, Sophia and Wu, Yu-Shan
(eds): Semi-presidentialism and Democracy (New
York: Palgrave-MacMillan, 2011).
Linz, Juan: The Perils of Presidentialism”, (1990) 1/1
Journal of Democracy, 5169.
Linz, Juan J. and Valenzuela, Arturo, (eds): The Failure
of Presidential Democracy Volume 2: The Latin
American Evidence (Baltimore: Johns Hopkins
University Press, 1994).
Lust-Okar, Ellen: Structuring Conflict in the Arab
World: Incumbents, Opponents, and Institutions
(Cambridge: Cambridge University Press, 2005).
Roper, Steven D: Are all Semi-presidential Systems
the Same? A Comparison of Premier-presidential
Regimes”, (2002) 34 Comparative Politics, 25372.
Shugart, Matthew Soberg and Carey, John M:
Presidents and Assemblies: Constitutional Design and
Electoral Dynamics (Cambridge: Cambridge University
Press, 1992).
Skach, Cindy: “The ‘Newest’ Separation of Powers:
Semipresidentialism”, (2007) 5 International Journal of
constitutional Law, 93121.
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
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1. Introduction
Semi-presidentialism is a form of government in which
(i) a president is directly elected by a popular vote to
serve a fixed term as head of state, and (ii) a prime
minister leads a government for as long as it enjoys
the support of a majority of a popularly elected
legislature, and (iii) the president and prime minister
share executive authority. The president is directly
elected by and accountable to the people, while the
prime minister and government hold a governing
mandate from, and are accountable to, the legislature.
The existence of two executive leaders, with different
bases of electoral legitimacy, distinguishes semi-
presidential government from pure presidential
government and from pure parliamentary government.
The attraction of the semi-presidentialism is that the
dual executive model may lower the risk that political
power will become centralized in either the president
or the prime minister, while the dangers of a rapid
move to a pure parliamentary system can be
mitigated. Semi-presidentialism ensures that there is a
site of executive power even if the legislature is less
effective, but splits executive power between the
president and prime minister as a way of reducing the
prospects of the centralization of power in a strong
president.
However, simply establishing a semi-presidential form
of government is not enough to ensure that a new
democracy will avoid the dangers of both centralized
executive power and a chaotic, fractured legislature.
Careful thought must be given to the matters of
institutional design that structure the relationship
between the president, prime minister, and legislature,
and the extent to which specific choices of
constitutional design tend to promote two outcomes:
1. effective yet restrained executive leadership; and
2. an effective and functioning legislature, with the
president able to step in to provide executive
leadership in the event of legislative incapacity.
Three areas of institutional design are important to
constructing an effective semi-presidential system: (1)
the constitutional architecture establishing the semi-
presidential system; (2) mechanisms by which power
is exercised and shared within a semi-presidential
system; and (3) responses to political crises.
2. Constitutional architecture
The constitutional architecture of government is the
institutional and structural framework within which
power is exercised. Different constitutional
architectures offer different incentives to the president
and the prime minister to cooperate and compromise
in the exercise of power, and affect whether power is
likely to become concentrated. There are five specific
questions of constitutional design that constitute this
architecture: government formation (section 3.1);
government dismissal (section 3.2); powers to dissolve
the legislature (section 3.3); presidential term limits
(section 3.4); and impeachment or removal of the
president (section 3.5).
2.1 GOVERNMENT FORMATION
There are three broad options for the appointment of
the prime minister:
1. The president has exclusive authority to appoint
the prime minister;
2. The president appoints a candidate for prime
minister, whom the legislature confirms as prime
minister;
3. The legislature appoints the prime minister, and
the president plays only a ceremonial role.
Where the president dominates the appointment of the
prime minister and the rest of the government, the
president may be able to ensure that the prime
minister and government are loyal to the president or
ideologically aligned with the president’s political
program. The French President has the exclusive
power to appoint the Prime Minister, although the
legislature retains the power to dismiss the Prime
Minister and government through a vote of no
confidence.
In contrast, where the prime minister and the
government are appointed with the consent of the
legislature that is, where the legislature must
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
5
confirm the prime minister and government before
they take office the president and the legislature
must work together in forming the government. This
approach is followed in Russia, Croatia, Belarus, and
Slovenia, among other countries.
There are two distinct advantages to this second
approach. First, it is more likely that the government
will represent political interests that are different to
those the president represents, expanding political
representation in the executive. Second, a government
that is not loyal to or ideologically aligned with the
president is more likely to exercise oversight and
restraint of the president’s exercise of power.
However, there is a danger that the legislature will be
unable to agree on a candidate for prime minister. If
this occurs, the constitution may call for the dissolution
of the legislature and for fresh elections to be held
(see section 2.3).
The third option is closest to the parliamentary model.
The legislature appoints the prime minister with only a
ceremonial role for the president. This approach is
followed in Ireland and Finland, and is rare.
2.2 GOVERNMENT DISMISSAL
There are three reasons it is important to create a
constitutional mechanism for dismissing the
government. First, it ensures that recourse is available
when a government fails to perform. Second, where
the government fails to act as a check on the
president, the legislature can dismiss the government
and demand the formation of a new government.
Similarly, the government can be dismissed when it
exceeds its own powers. Third, when president and the
government are entirely unable to work together, and
effective government has become impossible,
dismissing the government creates an opportunity for
the formation of a new government.
There are two institutional options for dismissing the
prime minister and government together:
Both the president and the legislature may dismiss
the government (president-parliamentary
government).
Only the legislature may dismiss the government
(“premier-presidentialgovernment);
If the president has the power to dismiss the prime
minister (“president-parliamentarygovernment), he
or she can use this power as a threat to coerce the
prime minister to support the president politically. The
president has little incentive to accommodate different
political interests in the legislature, because the
president can simply dismiss a prime minister and
government that do not support the president. In
these circumstances, the president may more easily
centralize political power, with little or no opposition
from the prime minister or government.
Comparative experience and empirical evidence
indicates that premier-presidential systems, where the
president cannot dismiss the government, resist
autocracy, executive dominance, and democratic
dictatorship better than president-parliamentary
regimes. Failures of democracy occur more than ten
times more frequently under president-
parliamentarism than under premier-presidentialism
(Elgie: 2011).
Countries that adopt (or adopted) the president-
parliamentary approach include Belarus, Burkina Faso,
Central African Republic, Croatia (1991-2000), Iceland,
Madagascar, Mozambique, Niger, Peru, Portugal
(1976-1982), Russia, Senegal, Sri Lanka, Taiwan, and
the Weimar Republic.
Countries that adopt (or adopted) the premier-
presidential approach include Bulgaria, Cape Verde,
Croatia (2000-), Finland, France, Georgia (2013-),
Ireland, Lithuania, Macedonia, Mali, Moldova,
Mongolia, Namibia, Poland, Portugal, Romania, and
Slovakia and Slovenia.
Russia’s experience stands as a warning against
empowering the president to dismiss the government.
From 1993 to 2001, the President’s party did not have
a majority in the Duma, which made conditions ripe for
power sharing yet no power sharing occurred. The
President dismissed six different Prime Ministers during
this eight-year period. Five Prime Ministers served with
President Boris Yeltsin between 1998 and 1999 alone.
These dismissals largely served Yeltsin’s own quest for
power. Partly due to these repeated dismissals, Russia
was frequently without a sitting government for a
period of months. The ensuing political instability
harmed both the transitioning democracy and the
economy.
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In the premier-presidential system, the president does
not have the power to dismiss the prime minister and
the government, and the prime minister and president
can become coequal executives. Furthermore, the
prime minister and government remain accountable to
the legislature only, ensuring that the president cannot
unduly influence the government’s program. Finally,
the legislature can act as a more effective check on the
prime minister and government when the government
is accountable only to the legislature and not to the
president in addition.
The danger of empowering only the legislature to
dismiss the prime minister and government is that
when the legislature is fractured or divided, it may be
unable to muster the majorities needed to support a
vote to dismiss the government or to agree on a new
government. However, the risk that the legislature will
not be able to dismiss an underperforming government
must be weighed against the risk that the president
will be able to dominate the prime minister and
government through the threat of dismissal.
In both premier-presidential and president-
parliamentary systems, the mechanism by which the
legislature dismisses the prime minister and
government is the vote of no confidence. There are
different procedural options for the vote of no
confidence. A new semi-presidential system may
consider the following procedural safeguards to ensure
that the no confidence mechanism is not abused:
1. Tabling a motion of no confidence: A motion of
no confidence may only be tabled for vote if
supported by a significant minority of members:
e.g. 25 per cent or one third of the members of
the legislature.
2. Passing the motion of no confidence: The
constitution may require that the motion of no
confidence be passed by a majority of the
members present, by a majority of members
present and voting, or by an absolute majority
of all of the members of the legislature. The
higher the voting threshold for the passing of a
vote of no confidence, the more secure a
government will be. The benefits of easily
dismissing a government through no confidence
procedures must be balanced against the risk of
unstable government where the government is
easily dismissed.
3. Constructive vote of no confidence: The
constitution may require the legislature to
approve a new prime minister before the existing
prime minister is dismissed. This ensures that
there is no power vacuum once the government
is dismissed.
In addition to dismissal by the legislature, most semi-
presidential systems provide that the prime minister
may resign, thereby automatically dismissing the
entire government. The prime minister is usually
empowered to dismiss and replace individual members
of the government.
2.3 DISSOLUTION OF THE LEGISLATURE
Dissolution of the legislature by the president is a
drastic move, but one that is sometimes necessary
when the legislature is incapacitated or where the
president and the government are so opposed that
they cannot effectively govern together. Since the
government’s term of office comes to a natural end
when the legislature’s term ends, dissolving the
legislature and calling for new elections allows the
president to reset the political landscape. The new
legislature may be constituted differently, to reflect
changing political preferences in the country. This new
legislature will in turn support a new government,
which may prove more capable of working with the
president and more effective in pursuing a policy
program acceptable to the legislature.
Legislative dissolution carries significant costs and
consequences, however: new elections must be
organized, and there may be a vacuum of executive
power as a result of the dismissal of the prime minister
and government. There are some ways that a
constitution can guard against these risks.
It is necessary at the outset of the discussion to
distinguish between discretionary dissolution, where
the president chooses to dissolve the legislature for a
specific reason, and automatic or mandatory
dissolution, which happens by operation of law when
the legislature cannot form a government within a
specified period after legislative elections.
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
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2.3.1 Discretionary dissolution
A legislature under the ever-present threat of
dissolution will not provide effective or credible checks
on the exercise of executive power. Kuwait provides a
good example of the dangers of unconstrained
dissolution power, where the Emir dissolved the
legislature five times between 2006 and 2012.
However, a legislature that is divided and beset by
conflict between a number of parties with weak
representation in the chamber may struggle to produce
legislation necessary for the functioning of a
government (such as a budget law). It may be
necessary in these situations to dissolve the ineffective
legislature and call for new elections.
In Russia’s semi-presidential system, the President
may dissolve the legislature (the Duma) when the
legislature passes two successive votes of no
confidence in the government within three months. A
deadlocked legislature that cannot support a
government breeds political instability. The legislature
must be able to agree on a government, or the semi-
presidential system will be left without an effective
government, functioning effectively as a presidential
system. In Russia, this power is open to abuse because
the President dominates the appointment of the Prime
Minister: the threat of dissolution coerces the
legislature to accept the President’s preferred Prime
Minister.
Where a president does not appoint the prime minister
unilaterally, the threat of abuse by the president is
reduced. Frequent and rapid dismissal of the
government by the legislature may indicate that the
legislature is too fractured to function effectively, and
should be dissolved in order to hold fresh elections and
allow the selection of a new and more stable
government.
There are a number of options to ensure that the
president’s power of discretionary legislative
dissolution does not lead to a situation in which the
prime minister and government are dominated by and
subservient to a strong president.
First, the dissolution power could be triggered only by
specific events, such as the failure to pass a budget
law after a set number of votes, or the successive
dismissal of two governments by a vote of no
confidence within a specified time period (e.g. three
months).
Second, the risks that a president may be able to
abuse the dissolution power to strengthen his or her
position against the legislature and government are
greater under certain conditions, such as during states
of emergency or war (where the holding of fresh
elections may be impossible); where the legislature
has begun impeachment or removal proceedings
against the president (where dissolution of the
legislature would allow the president to escape
impeachment or removal); or shortly after the election
of a new legislature, e.g. six months (during which
time the president may seek to dissolve the legislature
if electoral results are not favorable to him or her).
One way of limiting these risks is by prohibiting
dissolution during these periods.
Third, the frequency of dissolution can be limited, for
example with a prohibition on more than one
dissolution within a certain period (e.g. 12 months), or
a prohibition on the successive dissolution of two
separate legislatures for the same reason.
Finally, the procedural rules for dissolution can help to
minimize the risks of dissolution, for example by
requiring that new legislative elections be held within
40 or 50 days of the dissolution, failing which the
previous legislature is reinstated, and prohibiting
changes to the electoral law after the legislature has
been dissolved but before fresh elections are held.
2.3.2 Mandatory dissolution in case of
deadlock
Where the legislature is unable to form a government,
the business of government cannot go ahead. In a
fragile new democracy, the failure to form a
government may act as an incentive to the president
or even the military to seize power. Where the
legislature cannot form a government within a set
period after elections (e.g. 90 days), the mandatory or
automatic dissolution of the legislature ensures that
fresh elections are held, and that the risks associated
with the inability to form a government are minimized.
Holding fresh elections during a state of emergency or
war will be difficult whether the legislature is dissolved
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
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through mandatory or discretionary dissolution powers.
For this reason, it may be preferable to allow the
legislature to continue to function during a state of
emergency, even though it fails to appoint a
government within 90 days of election. The alternative
is to dissolve the legislature and run the risk of
elections not being feasible, leaving the country
without a legislature during a crisis.
2.4 PRESIDENTIAL TERM LIMITS AND
REMOVAL OR IMPEACHMENT OF THE
PRESIDENT
Limits to the total number of terms a person can serve
as president are widely accepted as elements of
constitutional architecture in semi-presidential as well
as presidential systems. These provisions must be
carefully drafted. In Russia, for example, the
prohibition on two consecutive terms (but the absence
of a prohibition on total terms) allowed President Putin
to serve a third term as President after stepping aside
for a single term. This has allowed President Putin to
consolidate executive power.
In addition to constitutional prohibitions on multiple
terms in office, the ability to remove a president before
the expiry of his or her term office is a significant
mechanism by which the legislature can ensure that
the president adheres to the principles of the
constitution. The threat of removal will dissuade a
president from acting in ways that attract the censure
of the other branches and create an incentive for the
president to consider the wishes of opposition or
coalition parties when exercising presidential powers.
There are two different procedures for removing a
president. The first is impeachment, in which the
president is impeached for crimes he is alleged to have
committed, tried by a specially constituted tribunal or
court, and faces removal upon a guilty verdict. Usually
in semi-presidential systems, a supermajority of the
legislature votes either to charge the president for
alleged crimes or to remove the president from office
following a verdict of guilty. Where only a simple
majority of the legislature (or less) can impeach the
president, a supermajority must vote in favor of
removing the president upon a verdict of guilty.
The second procedure involves removing the president
without a trial or formal charges of misconduct. Since
removal procedures are more flexible, and do not
involve trial-like proceedings, the threshold for voting
to remove the president is usually a supermajority.
The requirement of a supermajority vote minimizes the
opportunities for the legislature to abuse the process
and remove the president for purely partisan reasons.
Removal procedures exist in Burkina Faso (four fifths),
Belarus (two thirds), Lithuania (three fifths) and
Namibia (two thirds). In France, either house of the
legislature may propose the removal of the President
by a two-thirds majority, upon which both houses
meet in a joint sitting to consider the proposal for
removal. A vote supported by two thirds of the
members of the joint houses is required to remove the
President. In Ireland, similarly, either house may
propose the President’s removal for reasons of
misconduct, by a vote supported by a two-thirds
majority. The house that did not propose the removal
of the President must consider the proposal,
investigate the charges of misconduct, and allow the
President an opportunity to address the house. The
President is removed by a vote supported by two thirds
of the members of the second house.
3. The distribution of executive
power in the semi-presidential
system
3.1 DIVISION OF POWER: THE
ARBITER/MANAGER MODEL
In general, semi-presidential constitutions lay out
three different relationships through which the
president and government exercise executive power:
1. the principal/agent model;
2. the figurehead/principal model; and
3. the arbiter/manager model.
Russia is an example of the principal/agent model, in
which the President exercises explicit control over
policy making, while the government is charged with
implementing policy as an agent of the President. This
arrangement can create the risk of a powerful,
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
9
autocratic president, especially if the president holds
the power to dismiss the prime minister and
government and is therefore able to coerce loyalty, or
at least acquiescence, from the government. Indeed,
the principal/agent model is more common in
“president-parliamentary” systems where the president
is empowered to dismiss the government, because the
threat of dismissal discourages the prime minister and
government from challenging the president’s exercise
of executive power.
The figurehead/principal model defers policy-making
and executive powers to the prime minister and
government, with the president acting only as a
ceremonial figurehead. This is the case in Finland and
Ireland, where the Constitution confers relatively little
executive power on the President. Under this
arrangement, the president exercises little influence in
policy making or the exercise of executive power.
The arbiter/manager model gives the prime minister
control over setting the government’s domestic
program and managing the day-to-day functions of
government. The president functions as an arbiter,
weighing in on certain constitutionally defined matters
in defined ways, and holding a limited veto over
legislation. The arbiter/manager model defines clear
roles for the president and the government in the
policy process. It strikes a balance between the pure
presidential system where the president drives the
policy process, and the pure parliamentary system,
where the prime minister and government are alone
responsible for policy and executive authority.
The French Constitution adopts the arbiter-manager
model, granting the government authority over
national policy, specifying that the Prime Minister will
directthe government’s actions, and authorizing the
President to operate as an arbiterand ensure the
efficient functioning of the government. This division in
responsibilities, as complemented by the
countersignature requirements and other procedural
checks (see below), leads to a policy environment in
which the French President can weigh in on (but not
entirely block) the Prime Minister’s direction of
domestic policy.
The discussion in the sections below (sections 3.2, 3.3,
3.4, 3.5, 3.6, and 3.7) consider how these three
relationships between the president and prime minister
would allocate a range of specific executive powers
between the president and prime minister.
Semi-presidential systems of government must pay
particular attention to the distribution of power
between the president and prime minister because the
possibility exists that the two will not represent the
same political party or coalition of political interests.
Where the president and prime minister are opposed in
this way, a situation of co-habitationemerges. While
in several semi-presidential systems, such as France,
co-habitation is viewed as something to be avoided, in
a new democracy where several political interests are
competing for power for the first time, co-habitation
offers an opportunity for shared executive power. A
semi-presidential system that is designed with the
possible power-sharing benefits of co-habitation in
mind can, in fact, help to consolidate democracy.
Cases where the semi-presidential form of government
has been used in a post-conflict situation to bring two
oppositional political forces together in a power sharing
government include Kenya (2008-2013) and Zimbabwe
(2009-2013). In Tunisia following the ousting of Zine
El Abidine Ben Ali during the Arab Spring, President
Moncef Marzouki, of the Congress for the People,
shared power with Prime Ministers from the Ennahda
party. (Note, however, that President Marzouki was
indirectly elected by the constituent assembly rather
than in a popular vote. Popular election by the people
is usually considered a requirement of the semi-
presidential system of government).
3.2 DOMESTIC POLICY
Domestic policy matters include, for example, the
determination of macro-economic policy. Under the
principal/agent model, the president takes the lead on
this and other domestic policy matters, while the prime
minister acts only as the president’s agent in
implementing the president’s decisions. In the
figurehead/principal model, the president plays no role
in domestic policy, leaving it all to the prime minister.
Under the arbiter/manager model, the president may
be allocated a role to participate in setting domestic
policy in specific functional areas. The president’s
policy-making powers in these specific functional areas
are often curtailed by requirements that the president
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act in consultation with the prime minister, through a
co-decision mechanism such as countersignature.
The countersignature mechanism requires that both
the president and the prime minister consent to a
particular action, by each signing a single order. In
France, the President is empowered to grant pardons,
but the Prime Minister must countersign a presidential
order granting pardons.
The prime minister remains responsible for domestic
policy in all residual functional areas. This power is
usually exercised by the cabinet rather than
exclusively by the prime minister. The president’s role
as an arbiter in cabinet policy meetings can be
provided for by a constitutional rule that allows the
president to call and chair cabinet meetings (see
section 3.6).
3.3 FOREIGN AFFAIRS
Affording the president a role in a country’s foreign
affairs may have three outcomes, depending on the
extent of power conferred on the president.
First, it may allow the president to act a symbol of the
nation. Where the president exercises only ceremonial
functions, with the prime minister and government
exercising all substantive powers of foreign policy, the
president’s role is purely symbolic. This is consistent
with the figurehead/principal model.
If the rationale of giving foreign affairs powers to the
president is to permit the president to represent the
nation symbolically, then the constitution should
distinguish clearly between foreign affairs powers with
a policy-making dimension and those with only
symbolic dimensions. This rationale suggests that the
president be authorized to exercise enumerated
symbolic or ceremonial powers and perform
enumerated symbolic or ceremonial functions, but not
to exercise foreign policy-making power. The president
may, for example, be designated as the state’s
ceremonial representative at international meetings
and organizations. In Iceland, the President represents
the nation at international events, but the Constitution
provides that the President ‘entrusts his authority’,
including authority over foreign policy, to the cabinet.
Second, affording the president a role in a country’s
foreign affairs may allow the president to act as a
symbol of the nation during ordinary times. This may
serve to enhance the president’s status as an
autonomous leader able to rise above politics, offer
leadership, and act as an arbiter in times of crisis, and
if the legislature and government become divided. On
this approach, enumerated foreign affairs powers,
including policy-making powers, can be allocated to
either the president or the government, while un-
enumerated powers can be exercised jointly. This is
the case in Finland, where the Constitution provides
that ‘the foreign policy of Finland is directed by the
President of the Republic in co-operation with the
Government’ (article 93(1)). However, the government
retains authority over decisions regarding the
European Union, which tips control of foreign affairs in
favor of the government (article 93(2)). This balanced
option corresponds to the arbiter/manager option, in
the sense that the government retains control over key
foreign affairs powers, while the President participates
in co-operation with the government in directing other
matters of foreign policy.
Third, affording the president a role in a country’s
foreign affairs may entail granting the president
extensive foreign affairs powers, empowering the
president to lead the nation on the international stage,
for example by negotiating and signing treaties. This is
a significant and substantial policy-making role, which
goes beyond a merely symbolic function or a
leadership role during times of crisis and allows the
president to direct foreign policy through the treaty-
making power. Where this is the case, however,
legislative ratification is often required before a treaty
becomes binding or has domestic effect. This
requirement prevents the president from legislating
via treaty, and thus bypassing the legislative
process. This model has elements of the
principal/agent model. In Russia, the President has
virtually unchecked foreign affairs powers. The Russian
Constitution grants the President the power to
‘supervise control over foreign policy’ (article 86(a))
and charges the government with ‘implementing’ the
foreign policy (article 114).
The drafters of a constitution should have a clear idea
of which of these three outcomes they want to
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achieve, since this will affect the extent of foreign
policy power the constitution confers on the president.
3.4 DECREE POWERS
A decree is a mechanism by which the executive can
issues orders that have the force of law, but are not
necessarily submitted to or approved by the legislature
before they assume the force of law. Presidential
decree powers pose a dilemma, because their exercise
allows a president to sidestep the legislature and pave
the path to autocracy. Yet presidential decree powers
can be necessary at times: they allow for quick,
efficient policy making, which may assist during a
period of constitutional transition, and they may be
necessary if the legislature is dissolved or during a
state of emergency. Giving the president too great a
range of decree powers runs the risk of undermining
the legislature as the principal site of law making. The
danger of presidential decree powers is amply
illustrated by the example of Egypt, where President
Mubarak was able to redraft the electoral law by
decree. The Russian Constitution confers wide decree
powers on the President, with the result that in 1996
alone, for example, President Yeltsin issued over 600
decrees. Semi-presidential constitutions must steer
between giving the president too many and too few
decree powers.
Regardless of how many decree powers are given to
the president, confusion about the proper exercise of
those powers can be minimized if the constitution
enumerates clearly the subject areas in which the
president can issue decrees. Further, a constitution
may empower a president to exercise decree powers
when the legislature cannot effectively legislate, such
as during a state of emergency or legislative
dissolution.
Semi-presidential constitutions often require the prime
minister to countersign or confirm the decree before it
takes legal effect, as a safeguard. This is the case in
France, where the Constitution provides that
presidential decrees on certain subjects must be
countersigned by the prime minister and the cabinet
minister concerned (art. 19).
Because the prime minister and government are
directly accountable to the legislature and subject to
direct legislative oversight, prime ministerial decree
powers raise fewer concerns about power consolidation
and autocracy than presidential decree powers. Prime
ministerial and government regulations are sometimes
necessary to ensure the effective implementation of
legislation.
3.5 APPOINTMENT OF GOVERNMENT
OFFICIALS AND BUREAUCRATS
By appointing their preferred candidates to senior
bureaucratic offices, such as the heads or directors
general of government departments, the president or
the prime minister can capture the bureaucracy. This
may result in the establishment of a partisan
bureaucracy that is dedicated to the policy preferences
of either the president or the prime minister.
This is of particular concern where the president and
prime minister represent different parties, as in a
situation of co-habitation: a partisan bureaucracy may
undermine the power-sharing benefits that co-
habitation holds for a new democracy. Careful
constitutional design of appointments powers can
guard against this possibility.
An important principle for appointment powers is
clarity. Where a constitution expressly identifies the
government officials that the president and prime
minister can respectively appoint and dismiss, the risk
of confusion and conflict can be minimized. A similar
approach is to expressly identify only a handful of
appointments that the president can make, providing
that residual power to appoint and dismiss all other
government officials will be held by the prime minister
(or vice versa).
An alternative precaution is to require that the
appointments made by the president are countersigned
by the prime minister, and that the prime minister’s
appointments are made in cabinet (i.e., collectively by
the entire cabinet and not by the prime minister acting
alone) or countersigned by the president.
For particularly sensitive appointments, such as to the
senior ranks of the security services and military, a
requirement of legislative approval may act as a
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further guard against the president or the prime
minister capturing the bureaucracy through the
appointments process.
3.6 CHAIRMANSHIP OF THE CABINET
Under the arbiter/manager model, the prime minister
drives the policy-making process, and the president
acts only as an arbiter during deadlock or in times of
crisis. This model gives greater weight to the prime
minister’s and government’s policy preferences, with
the result that the president’s policy preferences, and
the political interest he or she represents, may be
sidelined. To counteract this problem, and to allow that
the political interests represented by the president are
protected to some degree, the president may be
empowered to chair cabinet meetings. The president
will thus have some influence over the policy agenda of
the government and exert some control over
proceedings of cabinet meetings.
The figurehead/principal model, by contrast, affords
the president no significant role in policy formulation.
The prime minister chairs cabinet meetings and directs
the actions of cabinet without input from the president.
The principal/agent model aims to give the president a
significant role in policy. In this model, the president
chairs cabinet meetings. In addition to the other
powers that the principal/agent model ensures the
president is able to exercise (e.g. decree powers,
appointment powers, domestic and foreign policy
powers), the power to chair and direct cabinet
meetings ensures that the president holds a greater
share of executive power than the prime minister and
government.
3.7 PRESIDENTIAL VETO OVER DRAFT
LEGISLATION
A presidential right to refuse to promulgate, or veto,
legislation duly passed by the legislature acts as a
counterbalance to the prime minister’s power to set
policy and initiate legislation. It is important, however,
that the veto power does not block legislation entirely.
When designed correctly, a presidential veto can
encourage cooperation and negotiation between the
parties or interests that are respectively represented
by the president and prime minister.
There are two main dimensions along which
presidential veto powers vary. The first is the scope of
legislation that is subject to veto. Some veto powers
are limited to a straight up-or-down rejection of a bill,
while more flexible vetoes allow a president to insert
amendments (amendatory veto) or veto specific
provisions of a bill (line-item veto).
Second, the legislative majorities required to override
a veto and pass bills into law despite the president’s
opposition vary (no country has an absolute veto
that cannot be overruled). In some cases, the
legislature may overrule the president’s veto by an
ordinary majority (or by the same majority with which
the legislation was originally passed); in other cases
the legislature may overrule the veto only by passing
the legislation for a second time by a special majority
(usually two-thirds).
In sum, there are four options for designing veto
powers:
Option 1: line-item or amendatory veto that is
subject to supermajority override;
Option 2: line-item or amendatory veto that is
subject to override by the originally required
legislative majority;
Option 3: straight up-or-down veto that is subject
to supermajority override; and
Option 4: straight up-or-down veto that is subject
to override by the originally required legislative
majority (also known as a suspensive veto”).
Option 1 weights the veto in favor of the president: the
president may veto an entire bill, or specific provisions
in a bill, and may propose amendments to the bill that
the legislature must debate. Further, the legislature
can only override the presidents veto or amendments
with a supermajority, making it more difficult to
oppose the president’s wishes than if a simple majority
sufficed.
Option 4, on the other hand, weights the veto in favor
of the legislature: the president may only veto the
entire bill, which is a politically more significant act
that a veto of only specific provisions or proposed
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amendments to specific provisions. The legislature can
override the veto more easily, by simply passing the
legislation again by a simple majority.
The veto arrangements presented by options 2 and 3
distribute power between the president and the
legislature (and by extension the prime minister) in a
balanced fashion. The risk that either the president or
the legislature will dominate the other, through the use
of veto powers or an easy legislative override, is
reduced in these two options. The French Constitution
confers a veto on the President of the kind described in
option 2. The Russian Constitution establishes a
presidential veto of the type described in option 3. It is
perhaps worth pointing out that Russian Presidents
have made extensive use of the veto power. Because
of the supermajority requirements needed to overturn
a presidential veto, the Russian legislature was often
unable to oppose or override the President’s legislative
vetoes. Other countries that adopt option 3 include
Central African Republic (although the Central African
Republic’s Constitution was abrogated by rebel leaders
in March 2013), Mozambique, Senegal, Poland,
Portugal, and Ukraine. While President of Ukraine,
Viktor Yanukovych made frequent use of the veto
power: between November 2010 and January 2012, he
vetoed at least 17 bills.
4. Semi-presidentialism in crisis:
security powers and states of
emergency
The need for effective executive leadership during
times of crisis justifies carving out a role for the
president as an autonomous crisis manager. Where a
weak party system or a fractured and divided
legislature results in a legislature that is incapacitated
(e.g. is unable to meet or agree on legislation), or is
unable to support a government capable of providing
stable executive leadership, the president may need to
step in to restore stability and provide executive
leadership. This is true for all three models of
distributing power between the president and prime
minister, but is most closely consistent with the
arbiter/manager model.
This logic justifies granting the president a primary
role in managing emergencies. It is important,
however, to ensure that the president’s emergency
powers are closely regulated, so that the risks of
backsliding into democratic authoritarianism or
presidential dictatorship are minimized.
This section examines several important elements of
emergency powers.
4.1 APPOINTMENT OF CABINET MEMBERS
RESPONSIBLE FOR SECURITY
In most semi-presidential countries, the appointment
of the cabinet members responsible for the defense
and security portfolios follows the procedure laid out
for the appointment of the rest of the cabinet. This
means that in most semi-presidential countries, the
prime minister appoints cabinet members responsible
for security. This is the case, for example, in France,
Russia, Austria, Croatia, Portugal, Bulgaria, Ireland,
Macedonia, Finland and Slovakia.
In some semi-presidential systems, however, attempts
have been made to share the power to make these
appointments between the president and the prime
minister. These attempts are driven by a desire to
ensure that executive authority to exercise key
security powers is not concentrated in a single
functionary but shared between the dual executive.
There are two mechanisms of shared appointments
power, which are considered here.
4.1.1 Split appointments power
Between 2006 and 2010, under amendments to
Ukraine’s 1996 Constitution, the Prime Minister
appointed the majority of the cabinet while the
President appointed the ministers responsible for
defense and foreign affairs (article 114 of Ukraine’s
200610). This is the only example of a semi-
presidential system in which the president and prime
minister appointed separate members of cabinet, and
indeed, the Constitutional Court reversed these
amendments in 2010 and re-instated the 1996 model,
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under which the Prime Minister appointed the entire
cabinet. The 2014 Egyptian Constitution provides that
the President shall appoint the Ministers of Defense,
Interior, Foreign Affairs and Justice in consultation
with the Prime Minister, but only in circumstances
where the government is chosen from among the party
or coalition holding the majority or highest number of
seats in the legislature (art. 146).
A president empowered to appoint certain cabinet
ministers may be able to carve out an area of influence
that is insulated from the rest of the government.
Moreover, the ministries of defense, security and
foreign affairs together constitute the state’s
machinery of armed and coercive force. Allowing the
president to appoint the ministers of defense and
foreign affairs creates a risk that the president will be
able to capture the machinery of state violence.
4.1.2 Appointment by co-decision
A second option for power sharing in the appointments
process is to require the president and prime minister
to jointly appoint ministers responsible for key
government portfolios. Article 61 of Poland’s Little
Constitution of 1992 provided that the ministers
responsible for foreign affairs, defense, and internal
affairs would be appointed by the Prime Minister after
consultation with the President. The Tunisian
Constitution of 2014 adopts a similar approach,
providing that the prime minister appoint the ministers
of foreign affairs and defense in consultation with the
president.
The Polish provision suffered from a lack of clarity: it
was not clear whether the President or the Prime
Minister could veto the other’s selection of these
ministers, for example, or whether consultation
meant only that the Prime Minister consider the
President’s preferences but could nevertheless appoint
the specified ministers regardless of the President’s
preferences. If adopted as part of a semi-presidential
arrangement, co-decision provisions must be clearly
and unambiguously drafted.
Another option for the appointment to these key
ministries, consistent with the idea that semi-
presidentialism is a middle ground between
presidential and parliamentary systems of government,
requires the legislature to confirm any appointments
that are made to key security portfolios by either the
president or the prime minister.
4.2 APPOINTMENT OF SENIOR SECURITY
SERVICES OFFICIALS
As with appointments to key security portfolios in
cabinet, procedures for appointment to the senior
bureaucracy of the security services can create
opportunities for the president or prime minister to
consolidate a power base in the security services.
Executive leaders can draw strength from the security
services, and abuse then for the purpose of sidelining
political opponents. This may become a particular
concern during periods of co-habitation, where either a
president or prime minister may undermine the
position of the other by using the security services.
A handful of options exist to structure these
appointments powers in a way that minimizes the
opportunities for partisan abuse of the security
services.
First, appointments to senior military, security and
intelligence services can be made by the prime
minister, with the countersignature of the relevant
cabinet minister. This ensures that cabinet is involved
in appointments, and that the prime minister does not
exercise sole control over these appointments.
Alternatively, the president may play a role in
appointing senior bureaucrats, acting jointly with the
prime minister through co-decision procedures. These
may include, for example, appointment by the
president on the proposal of the prime minister;
appointment by the cabinet acting collectively, as
chaired by the president; or appointment by the
president or prime minister, as countersigned by the
other.
A third alternative is to allow the president to make
these appointments, but to require confirmation by a
majority of one or both houses of the legislature.
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4.3 COMMANDER-IN-CHIEF POWERS
Clearly designating a commander-in-chief sets out the
chain of command in the military and authorizes a
single functionary to oversee and assume responsibility
for a country’s military apparatus. It is common in
semi-presidential systems to designate the president
as commander-in-chief of the armed forces, and doing
so is consistent with the president’s role as an
autonomous crisis manager in a semi-presidential
system.
There is a distinction to be drawn between the exercise
of commander-in-chief powers and the power to
formulate security and defense policy, however.
Designating the president as commander-in-chief of
the military does not automatically imply that the
president have primacy in security and defense policy.
Where the prime minister and government retain the
power to set security and defense policy, the
president’s role as commander-in-chief is limited to
executing or implementing the government’s policy.
The president’s power to act as commander-in-chief
may therefore be constrained by that fact that the
prime minister and government remain the primary
drivers of policy. The president’s role as commander-
in-chief may thus be limited to situations of emergency
or crisis.
4.3.1 Declarations of war and states of
emergency
While parliamentary declarations of war or martial law
are the global norm, a semi-presidential constitution
as with a purely presidential or purely parliamentary
system may contemplate less formal mechanisms for
authorizing the use of force in narrowly constrained
and closely regulated situations of imminent threat and
emergency.
The president may be empowered to declare war or
states of emergency only if the legislature is unable to
meet. In all semi-presidential systems, a presidential
declaration must be confirmed by the legislature upon
meeting within a specified period of (e.g. 48 to 72
hours). The declaration of war or state of emergency
lapses if the legislature does not confirm the
declaration within the specified period.
4.3.2 Deployment of the armed forces
domestically or abroad
In order to preserve political stability and the role of
the legislature and opposition in a semi-presidential
system, the deployment of the armed forces should be
subject to strict constitutional rules, both in
circumstances of war or states of emergency and in
emergency situations where no declaration of war or
state of emergency has been made.
These rules can include the following examples.
First, the deployment of the armed forces within or
outside the nation’s territory, upon a declaration of war
or state of emergency, must be authorized by the
legislature after a proposal by the president as
commander-in-chief.
Second, the deployment of the armed forces beyond
the territory of the nation (but not within the nation’s
borders) without a formal declaration of war may be
authorized by the government, or by co-decision of the
president and prime minister, for specific purposes and
for a limited time. The legislature must be immediately
informed of deployment and, after a specified period of
time (for example 48 to 72 hours) must declare war or
withdraw the armed forces.
4.3.3 National defense council
A national defense council is a cooperative body
usually representing the president, the government,
the legislature and opposition parties. It exists in
France, Russia, Ukraine and Portugal, for example. The
idea behind a national defense council is to ensure that
the formulation of defense policy is not dominated by
the prime minister and government. Further, by
including representative of the legislature, a national
defense council can increase legislative oversight of
defense and security policy.
There is a risk that where the composition, functions,
and terms of reference of a national defense council
are not set out clearly in a constitution, the council can
become dominated by either the president or prime
minister, or co-opted by leadership of the security
forces themselves. This risk can be minimized by
ensuring that details regarding the composition,
powers, functions and responsibilities of a national
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defense council are clearly set out in a constitution.
Kenya’s National Security Council established by article
240 of the Constitution of Kenya, 2010, provides an
example of how constitutional provisions can set clear
rules for the composition and functioning of an
institution of this nature.
Further, if the objective of a national defense council is
to ensure that the control of security and defense
powers is not concentrated in a single person or
executive office, it may be necessary to entrench in
the rules for the council that its membership include
the president and representatives of the legislature,
government, and opposition political parties.
4.4 STATES OF EMERGENCY
The power to declare a state of emergency and
assume emergency powers is usually vested in the
president in semi-presidential systems. A state of
emergency allows the president to exit the framework
of normal government and exercise executive power
free from the ordinary constraints that the constitution
puts in place.
However, a constitution can nevertheless impose some
procedural and substantive constraints on the exercise
of emergency powers, which are designed to ensure
that once the crisis or emergency passes, normal
government resumes under an unchanged
constitutional framework.
There are four kinds of constitutional rules that can
limit and constrain the president’s emergency powers.
These are:
1. procedural restrictions on the declaration of
the state of emergency;
2. temporal limitations on the duration of the
state of emergency;
3. substantive conditions that trigger the state of
emergency; and
4. substantive limits on emergency powers.
4.4.1 Procedural limitations: who declares
the state of emergency?
There are four options for who can declare the state of
emergency. It can be declared by:
1. the president unilaterally,
2. the president acting in consultation with the
prime minister,
3. the prime minister unilaterally; or
4. the legislature, or by the president or prime
minister subject to confirmation by the
legislature.
A unilateral presidential power to declare a state of
emergency is not common among semi-presidential
systems. Only the Presidents of Madagascar and
Senegal can unilaterally declare a state of emergency.
In Armenia, France, Burkina Faso, and Niger the
President can declare a state of emergency only after
consulting with the government and the legislature.
Empowering the executive branch (i.e. president and
prime minister) to declare a state of emergency in
order to act quickly to avert a crisis is justifiable on the
principle of ensuring effective leadership during times
of crisis. In many semi-presidential constitutions,
however, the legislature must confirm the declaration
of a state of emergency within a specified period, or it
lapses (e.g. France, Belarus, Mozambique, Georgia,
Namibia, Romania, Ukraine, Bulgaria, Portugal).
4.4.2 Temporal limitations on the duration of
the state of emergency
In authoritarian countries, states of emergency have
often endured for long periods of time, allowing the
president to accumulate and consolidate executive
power. In Egypt, a state of emergency was in place
from 1967 to 2012, with only one 18-month break.
During these periods, the two Egyptian Presidents
were able to secure their grip on political power.
One way of avoiding the risks that extended periods of
emergency pose is to place one or more limitations on
the length of time that a state of emergency can exist,
or limit the length of time for which a state of
emergency can be renewed. Examples from semi-
presidential constitutions around the world include:
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1. An absolute limit on the duration of the state of
emergency (e.g. six months as in Lithuania);
2. A limit on the length of the period for which the
legislature can extend a state of emergency as
declared by the president (e.g. 30 days,
extendable 3 times, as in Mozambique); or
3. A requirement that legislative renewal of the
state of emergency after each 30-day period be
supported by a two-thirds majority of the
members of the legislature (e.g. Namibia).
4.4.3 Substantive conditions necessary to
trigger the power to declare a state of
emergency
The declaration of a state of emergency is a significant
act that can have significant consequences. It is
important to ensure that a state of emergency can be
declared only if the circumstances warrant it: specific
substantive conditions trigger” the power to declare a
state of emergency. In most semi-presidential
systems, the executive or legislature has no power to
declare a state of emergency in the absence of these
substantive triggers.
Substantive triggers can be enumerated clearly and
narrowly in the constitution, or they can be broadly
defined in order to encompass a range of
circumstances that are not specifically foreseeable.
The Russian Constitution, for example, does not define
the substantive conditions under which an emergency
can be declared, instead leaving this to ordinary law.
Since ordinary legislation can be easily amended by a
legislature, a legislature sympathetic to the president
legislature may to expand the circumstances under
which an emergency can be declared. Egypt’s 1971
Constitution imposed no substantive limitations on the
declaration of the state of emergency, stating only that
the President could declare a state of emergency in
the manner prescribed by law(art. 148).
Examples of the kind of substantive conditions that
trigger the power to declare a state of emergency
include:
1. Actual or imminent aggression by foreign forces;
2. Serious threat to, or disturbance of, the
democratic constitutional order;
3. The interruption of the functioning of public
authorities;
4. Where the fulfillment of international obligations
is impeded; or
5. Natural disaster.
The Portuguese Constitution allows the declaration of
either a state of siege or a state of emergency in cases
of actual or imminent aggression by foreign forces,
serious threat to or disturbance of the democratic
constitutional order, or public calamity. Rather than
narrowly defining the substantive triggers for declaring
a state of emergency, the Constitution provides that
the decision to introduce a state of emergency or a
state of siege (the latter allowing for a greater
restriction of rights and freedoms) should be
influenced by the nature of the crisis. The Constitution
thus requires that the response to the crisis should be
proportional to the severity of the crisis itself.
Mozambique’s constitution establishes a similar model.
4.4.4 Substantive limitations on emergency
powers
Aside from limiting the power to declare a state of
emergency, a constitution can limit the risks that a
state of emergency poses to the long-term stability of
democratic government by narrowly defining the
powers the president or government can exercise
during a state of emergency. Constitutionally
entrenched limitations on the exercise of emergency
powers can help to limit the opportunity for their
abuse.
The following are examples of the kinds of limitations
that can be placed on the exercise of presidential
powers during a state of emergency, drawn from semi-
presidential constitutions around the world:
1. During a state of emergency, there shall be no
discretionary dissolution of the legislature by the
president (e.g. Armenia, Belarus, Burkina Faso,
Cape Verde, France, Mozambique, Niger, Peru,
Poland, Portugal, Romania, Russia and Senegal);
2. During a state of emergency, emergency decrees
must not derogate from fundamental rights,
SEMI-PRESIDENTIAL GOVERNMENT JUNE 2014
18
including those designated by international law
as non-derogable, such as the non-derogable
rights designated by the International Covenant
on Civil and Political Rights (e.g. Armenia,
Bulgaria, Cape Verde, Finland, Georgia, Ireland,
Lithuania, Mongolia, Peru, Russia, Slovakia,
Slovenia and Ukraine); and
3. During a state of emergency, emergency decrees
must be confirmed by the legislature within a
specified time period (e.g. 14 or 15 days, one
month, or six weeks) or else such decrees lose
the force of law (e.g. Senegal, Sri Lanka,
Namibia, Taiwan, and Iceland).
5. Conclusion
Semi-presidentialism has the potential, in countries in
the Middle East and North Africa region and indeed in
all countries making a transition from an authoritarian
past to a democratic future, to offer a system of
government that moves away from the pure
presidential system and reduces the risk that a single
and powerful executive president will be able to
dominate the political process and centralize power.
At the same time, the semi-presidential system guards
against the risks that a pure parliamentary system
poses. In new democracies where there is a risk of a
weak party system and little experience of true
parliamentary politics, there is a danger that
parliaments will be fractured and divided, incapable of
passing legislation or agreeing on a prime minister and
government.
The semi-presidential system offers an option where
the president is not the exclusive site of executive
power while allowing the president to step in to
provide executive leadership where the legislature
might be incapable of supporting a prime minister and
government.
This Working Paper sets out to identify several
important institutions of government, and to describe
how various design choices may advance or undermine
the advantages of semi-presidentialism as a form of
government, and which justify the selection of the
semi-presidential form in the first place.
... As a rule, in constitutional doctrine, "pure" forms of government are associated with the risks of usurpation of power or, at least, its excessive concentration by the heads of state in presidential republics or ruling parties and their leaders in parliamentary ones 13 the introduction of mixed forms of government is seen as a method of avoiding the threats that pure forms potentially carry. Logically, in the conditions of constitutional democracy, they should neutralize the excessive powers of the parliamentary majority or the head of state. ...
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