Constitutional Reform: What Can Kazakhstan Learn From International Experience?
President Nursultan Nazarbayev recently announced Kazakhstan will pursue constitutional reforms. The reforms will give more powers to the parliament and the government while the President will look after national security, defence and foreign policy and will serve as an arbiter. This model of government is referred to as a semi-presidential government, similar to that of France.
We will examine the experience of other countries that adopted the French model of government. There are 34 countries in the world that adopted variations of the French model, including Russia, Taiwan and Ukraine, among others.
We will answer six questions. What are the advantages of a semi-presidential model as against pure presidential and pure parliamentary models? How is the government formed? How is the government dismissed? How is the parliament dissolved? What are the limits of the Presidency? How should power be distributed between the Presidency and the Prime Minister / Cabinet / Parliament?
What are the advantages of a semi-presidential model? The main advantage of this model is that it ensures more government stability than parliamentary systems and more flexibility than presidential systems. This is so because when the President’s party controls a majority of seats the President appoints as prime minister a fellow party member, while when the President’s party fails to win a majority of parliamentary seats, the President appoints as prime minister the leader of the party that controls a parliamentary majority. Hence, the government has always a working parliamentary majority and does not experience the gridlock that presidential systems experience when the Presidency and the legislatures are controlled by different parties. Furthermore, one of the advantages of semi-presidential form of government is that in addition to preventing gridlock, it is in charge of some important policy areas, such as foreign affairs and acts decisively in time of national crises. In other words, under semi-presidentialism the president focuses on strategic issues while the prime minister and cabinet focus on domestic and day to day running of government. This leads to two or three horses pulling the wagon together to deal with complex matters of governance.
How is the government formed? There are three options on how the government is formed under a semi-presidential model. First, the President has exclusive authority to appoint the prime minister who will then appoint the Cabinet. In France, Article 23 of the 1958 constitution establishes that members of the parliament cannot simultaneously serve on the government or, to put it the other way around, cabinet ministers cannot simultaneously be members of parliament. Hence, if the prime minister selects a minister from among the members of parliament, the newly appointed minister has to give up his or her parliamentary seat. An organic law regulates how such members of parliament can be replaced.
Russia represents a second model of semi-presidentialism. The peculiarity of the Russian semi-presidential government is that the President nominates the prime minister while the parliament has the right to confirm or reject the nomination. The main advantage of the Russian model of semi-presidentialism is that by providing parliament with an opportunity to ratify or reject the prime minister indicated by the President, the prime minister and his or her government explicitly enjoy the confidence of a majority of parliamentarians and this could help preventing crises in executive-legislative relations, gridlocks and stalemates not only when the President’s party control the executive and the legislative branch of the government but also when different parties control different branches.
Austria and Ireland are formally, but not substantively semi-presidential because while the President in these countries is directly elected as in all the semi-presidential countries, the President simply performs a ceremonial function as head of state but lacks the substantive powers usually assigned to the Presidency in semi-presidential settings.
How is the government dismissed? There are two ways in which the government can be dismissed. One way in a semi-presidential system is through a motion/vote of no confidence. In France, for example, Article 50 of the constitution establishes that when the legislature approves a motion of no confidence, the prime minister is bound to hand in his (and his government’s) resignation and the President is bound to accept this resignation (Articles 8 and 50). In this case, the dismissal of the government is initiated by the legislature and effectively ratified by the President. In other cases, however, the dismissal of the government can be initiated either by the resignation of the prime minister or by a vote of no confidence in the parliament. Regardless of how it is initiated, the dismissal of the government is ratified by the President. There is a third group of semi-presidential countries, such as Gabon, in which the President either by his or her own initiative or as a result of a confidence/no confidence vote can dismiss a prime minister.
While giving parliaments the opportunity to hire and fire governments may be an effective way to solve conflicts between the executive and the legislative branch, it may create the conditions for excessive government instability and for a loss of government effectiveness. The solution, first introduced by German Basic law, is represented by the constructive vote of no confidence, which means that if the parliament wishes to dismiss a government, it needs to ensure that the perspective government will enjoy the support of a majority of legislators, so that the government formation process will not be too terribly time consuming and the government effectiveness will not be compromised.
Alternatively, and a better solution, there can be a constructive vote of no confidence in which the parliament appoints a replacement prime minister first before dismissing the current prime minister. Also, there can be a provision in the constitution that allows the government to voluntarily resign under certain conditions. For instance, these conditions include the following: when government fails to perform, when the government fails to act as a check on the President, when government exceeds / abuses its powers and when the president and government unable to work together. In Russia, two successive rounds of a vote of no confidence are grounds for government dismissal.
How is the parliament dismissed? There are two possible options, both exercised by the President. The first is discretionary dismissal while the other is mandatory. Discretionary dismissal cannot provide credible checks and balances because a parliament constantly threatened with dismissal will not challenge the President. Grounds for discretionary dismissal need to be crafted carefully. First, it should be triggered by events, such as failure to pass a budget. Second, dismissal should be prohibited in times of emergency/war so as to avoid a power vacuum. Third, parliament should not be dismissed during a process of impeachment; otherwise the president would have incentive to do so. Fourth, there should be no dismissal shortly after an election when an opposition partly becomes the ruling party. Finally, the frequency of dismissing the parliament should be defined and limited, to no more than once during its term of office. The purpose of these rules is to stabilise the system.
How is the President restrained? There are several ways to restrain the President.. First, is through term limits. In Russia, there is a prohibition against two consecutive terms but there is no prohibition on total number of terms. In China, the President can have a maximum of two terms for a total of 10 years. They also have age limits. Another common restrain on the President is through the process of impeachment for high crimes. This usually requires a super majority vote to foil frivolous attempts to impeach the President.
Finally, there is the crucial question of how to divide the powers between the President and the prime minister and parliament? While President Nazarbayev has stipulated that the President will assume the roles for defence, foreign affairs and national security and as an arbiter while domestic policy is transferred to government and parliament, there remains important questions in the separation of powers. First, to what extent can the President issue Presidential decrees? The proposed constitutional amendments will eliminate the possibility of adopting the Presidential decrees that have the force of law. President Nazarbayev in his address to the people of Kazakhstan stated that legislative powers were granted to the President in difficult times of early state-building and now this norm has lost its relevance.
Likewise, who has the residual powers in government (undefined powers) – the President, parliament or prime minister? Too much residual powers by the President will weaken the law-making powers of the parliament. Should the President’s residual powers be confined to the areas of/under its competence? Similarly, can the prime minister issue executive orders to give it enough authority to effectively govern and not be stymied by parliament? Or should the President counter-sign, like they do in France? Should the president still preside over cabinet meetings to set the directions of government? How much veto powers should the government have – line / amendatory powers with override by super majority or line / amendatory override by legislative majority or straight up and down veto with override by supermajority?
Kazakhstan is at an important point of its young history. Changing the constitution would have long term and very important consequences for the country. Asking these questions and learning from the experience of others is a necessary step to ensuring that appropriate constitutional choices are made.
BY EDUARDO ARARAL, RICCARDO PELIZZO, AZIZ BURKHANOV AND SERIK ORAZGALIYEV
Eduardo Araral is Vice Dean of Research at Lee Kuan Yew School of Public Policy and also visiting Professor at the Graduate School of Public Policy Nazarbayev University. Riccardo Pelizzo, Aziz Burkhanov and Serik Orazgaliyev are all faculty members of the Graduate School of Public Policy Nazarbayev University. The views expressed in this article are their personal views alone.