“Presidents, Prime Ministers and the Arab Spring” by Sujit Choudhry and Richard Stacey

This article was first published on 21 January 2013 in openDemocracy. The original is available here.

After a year of quiet turmoil under Ennahda’s rule, post-revolution Tunisia faces many challenges. Sujit Choudhry and Richard Stacey have had a look at semi-preseidentialism and have been evaluating which political system would be more beneficial to Tunisia’s citizens.

Last November 22, Egyptian President Mohamed Morsi issued a decree conferring broad powers on himself. The move has been widely condemned as anti-democratic, reminiscent of the presidential autocracy that preceded the Arab Spring. In nearby Tunisia, however, the conferral of wide-ranging powers on the president is proceeding quietly and calmly within the context of that country’s constitutional negotiations.

We recently returned from Tunisia, where we discussed executive powers with members of the Tunisian Constituent Assembly. Liberal secular forces in Tunisia advocate a constitutional system called semi-presidentialism to protect their interests as minority parties in a new democracy that could be dominated by Islamists. Central to this system is a strong president acting as a counterweight to parliament. But we think this strategy is fraught with risk, and that better alternatives are available.

Semi-presidentialism blends parliamentary and presidential democracy, combining a directly elected president with a prime minister and a cabinet that governs if it enjoys the support of an elected parliament. For most of the twentieth century, semi-presidentialism has been the odd, rarely-mentioned cousin in the family of democratic systems. Before the ‘third wave’ of democratization towards the end of the twentieth century, only Gaullist France, small Finland, dismally unsuccessful Weimar Germany and pre-civil war Spain fully embraced it. The Republic of Ireland flirted with semi-presidentialism, establishing a largely ceremonial president. But in the last twenty years, semi-presidentialism has flourished. One third of the world’s democratic counties now have semi-presidential governments.

Semi-presidentialism is the main constitutional option on the table in Tunisia, especially for liberal secular parties. Here is why. In principle, there are three options for structuring executive-legislative relations: presidential, parliamentary, and semi-presidential democracy. Presidential democracy is a non-starter, because Arab presidents abused their powers to become dictators and turned legislatures into bodies that rubberstamped their policies. Islamist parties have long favoured parliamentary democracy, because they expect to win the largest number of seats and dominate governments. Indeed, Islamist parties control the most seats in Tunisia’s transitional parliament, as they did in Egypt’s now-dissolved post-revolution Parliament.

Tunisia’s secular and liberal opposition parties agree with this assessment, and have more or less abandoned parliament. Instead, they hope that semi-presidentialism will yield a secular or liberal president who will be a counter-weight to an Islamist-dominated Parliament and Prime Minister.

This strategy is based on two calculations.

First, semi-presidential democracies tend to rely on the French model of Presidential elections, with a second round of voting between the top two candidates in the first round. The winner must win an absolute majority. If an Islamist candidate cannot command an outright majority in the first round, presidential candidates will have the incentive to appeal to liberal secular voters to win.

Second, semi-presidentialism is built around a charismatic figure who rises above party politics and unites the country, like Charles de Gaulle in post-war France. While secular and liberal parties lack the party organization to win dominance in parliament, they think they can field charismatic presidential candidates with broad appeal, like Egypt’s Mohamed ElBaradei.

Liberal secular forces are taking a huge gamble by insisting on semi-presidentialism as a hedge against an Islamist majority. If they lose the presidential election, they lose big. The election of President Morsi in Egypt shows this can easily happen.

There are other problems. For semi-presidentialism to fragment executive power, the constitution must confer significant power on the president. But the costs of a constitutionally powerful president in a semi-presidential system are high. International experience shows that semi-presidential systems with a strong president are more likely to collapse than those where the president is weaker. The tensions between a powerful president and a prime minister supported by parliament mean that government is conflict-ridden, unstable, and usually less effective on any measure of democratic performance.

But if Tunisia – and Egypt, Libya, and perhaps even Syria – is to avoid an executive dominated by a single party while at the same time establishing a stable, democratic, and effective government, what options remain? Is semi-presidentialism the only game in town?

There is another option. Parliamentary democracy can protect liberal secular parties through a variety of mechanisms. A constitutional court modeled on Germany’s, with appointment procedures that grant power to smaller political parties, could serve as a check on a Prime Minister and Parliament. Constitutions could guarantee smaller parties cabinet representation, such as in South Africa’s post-apartheid government of national unity or under Northern Ireland’s Belfast Agreement.

Liberal secular parties could condition approval of the final constitution on electoral systems and political party rules that ensure that electoral competition is free and fair, and on the constitutional entrenchment of the fundamental pillars of multiparty democracy. Before the adoption of a final constitution, liberal secular parties should shape legislation to insulate the intelligence services and law enforcement from partisan abuse by a political majority. Constitutions can provide for special parliamentary committees on police and intelligence oversight and public finance, with a majority of seats reserved for opposition parties, to stem the partisan abuse of public expenditure and of intelligence and police forces.

Finally, the constitution can create independent institutions to oversee the government, like an auditor, public prosecutor, and election commission, and ensure that these institutions report directly to Parliament and are appointed and removed with minority party consent.

A parliamentary system with constitutional safeguards against dominant-party autocracy is a less risky alternative to semi-presidentialism. This is in the interest of Islamists too, who may one day find themselves in the opposition. Checks and balances within a parliamentary framework are in everyone’s long- term interest, especially the peoples of the Arab region.

Professor Sujit Choudhry is the Cecelia Goetz Professor of Law and Faculty Director of the Center for Constitutional Transitions at NYU Law. Richard Stacey is a Fellow at the Center.

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