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Constitutional Law Attributions and Current Development, in Comparative Perspective Dante Figueroa Workshop: The Evolution of Latin American Presidentialism(s) in Comparative Perspective (Georgetown University, E. Walsh School of Foreign Service) Monday, Nov. 14th, 9-12.45 a.m./ 2-5 p.m. 10.15 – 10.45: Dante Figueroa (Congress Library/ Georgetown Law Center) 1. Introduction First of all, I would like to thank Adrian Albala for his kind invitation to speak about semi-presidentialism in Latin America and France with these distinguished co-panelists. Two disclaimers of rigor are necessary. First, I am not a political scientist but a lawyer. Therefore, with much humility I’ll present a few perspectives on the topic in order to motivate further debate. And second, that all my remarks are my own and do not represent anybody else but myself. During my preparation for this presentation I consulted a number of materials mainly written by experts in political science and one huge perception came from the onset: that there is no consensus in almost all of the issues related to the merits and defects of both presidentialism and parliamentarism, and everything in between. Thus, the specific contours of the concept of semi-presidentialism are totally disputed: 1.1. Concerning the election of the executive 1.1.1. Whether the essence of parliamentarism resides in that the legislature elects the executive, or that the legislature enjoys a power of censorship over the cabinet only. o For example, the case where the legislature can remove only individual cabinet members but not the whole cabinet would not be parliamentarism, as in the case of Chile during the 1891-1925 period 1 1.1.2. Whether party discipline is more desirable, effective, and lasting in either system 1.2. Concerning whether the direct or indirect election of the president makes a system a democratic system 1.2.1. Indirect presidential elections take place in both presidential (United States) and parliamentary (Germany, Italy) systems 1.2.2. Whether frequent changes of ministers tend to occur more in presidential or parliamentary systems and therefore what system presents a better model for democratic governance. 1 Cheibub, at 37. 1

1.3. What system is the ideal system? • In his speech at Bayeux (Normandy) on June 16, 1946, Charles de Gaulle observed that the Greeks asked Solon “What is the best Constitution?, a question that he used to reply: “Tell me first for what people and at what epoch.” 2 2. Definition of Semi-Presidentialism 2.1. Preliminary Remarks • When the Term Was First Used: The term “semi-presidentialism” was first used by the journalist and founder of the Le Monde newspaper, Hubert Beuve-Méry, in 1959, but it was the French Socialist scholar Robert Duverger who in 1970 first used it in the academic context. 3 • The Use of the Prefix: “Semi|: The use of the prefix “semi” implies a connotation of a negative, 4 that is, of something that either is not or that denies the whole of what the suffix represents. It connotes something that is part of something and part of another but that is neither one of the other. 5 The Romans were the first to recognize the limitations of the human imagination to label legal institutions when they acknowledged that certain obligations that did not arise from a contract or a tort were deemed to arise “ex-quasi contracts.” The rationale was simple: on the one hand, the new category, which was represented by the source of an obligation from one subject to another, did not fit in the traditional molds identified by the law: that is, contracts and torts. On the other hand, it defied logic and reasonableness to deny that the new sui generis category did, in fact, exist and that it had to generate legal consequences so that the basic notions of justice and fair dealing were not impaired. An example is the case where a debtor of an unpaid debt whose nonpayment is protected by the statute of limitations voluntarily or involuntarily pays the debt and thus is barred from asking for reimbursement based on the statute of limitations defense. In this case, a quasi- contract is deemed to exist, impeding the debtor to recover what he paid unduly. • A “Pure” Definition: In this context, semi-presidentialism scholars have earnestly attempted to convey a “pure” definition of semi-presidentialism, one that would not borrow its legitimacy from the conceptual definitions of presidentialism or parliamentarism. 6 Simply stated, the same seems to occur with the notion of “semi” (or “quasi”) presidentialism. That is, a political system that is defined by what it is not: it is not presidentialism, and it is not parliamentarism. Since the 2 Ezra N. Suleiman, Presidentialism and Political Stability in France, in The Failure of Presidential Democracy. Comparative Perspectives (Linz & Valenzuela, Eds. The Johns Hopkins University Press, 1994), at 137. 3 Elgie, at 1. 4 Elgie, at 6 (“prefix ‘semi’ is the Latin for ‘half.’”). 5 Elgie, at 7. 6 Elgie, at 8. 2

purpose of this conversation is not to focus on either of these systems, it suffices to say that each is characterized by an unmatched political and constitutional primacy of the president or the parliament, respectively, in the democratic game. • Not “semi-parliamentarism”: In this way, semi-presidentialism –as it is called, and not “semi-parliamentarism” 7 — is but a mitigation or attenuation of presidentialism. Therefore, it is in this conceptual framework that these reflections will be expounded. • Constitutional Monarchies: Semi-presidentialism seems to be a popular form of constitutional monarchies in Western Europe. 8 2.2. Attempting a Definition of Semi-Presidentialism • A Simple Differentiation: A rather simple differentiation of presidentialism, parliamentarism and mixed systems states that: 9 o Presidentialism exists where the legislature lacks the power to remove the president. o Parliamentarism when only the legislature has the power to remove the president. o Mixed when the legislature or the president can remove the government. • Duverger’s Definition: Perhaps the most authoritative scholar on the topic is Duverger. He identified what, in his opinion, are the basic elements for a political regime to be considered as semi-presidential according to its Constitution: (a) A President elected by universal suffrage directly or indirectly rather than nominated by parliament, for a fixed term of office; 10 • However, as the case of Finland and the United States reveals, it is controversial whether an indirect election of the President still makes a system qualify as semi-presidential; 11 • The standard response to this criticism is that “[T]here is indeed just as much diversity amongst parliamentary regimes as semi-presidential regimes.” 12 • The response is what really matters is that whether presidents “wield considerable power;” 13 a factor that leads us to the following requirement below: 7 Elgie, at 5. 8 Robert Elgie, Comparative European Politics, Semi-Presidentialism in Europe (Ed., Oxford University Press, 1999, reprinted in 2004), at iv. 9 Cheibub, at 34. 10 Sartori, at 132. 11 Elgie, at 8. 12 Elgie, at 11. 3

(b) A President with considerable powers that exceed those of a head of state in a normal parliamentary regime; • In order to “preserve the purity” of the notion of semi-presidentialism, some authors have done away with this requirement altogether. 14 • Another perspective is that explaining that semi-presidentialism is “not a synthesis of the parliamentary and presidential systems, but an alternation between presidential and parliamentary phases,” 15 depending on whether the President enjoys a parliamentary majority. • In the case of the United States: o “Majority power does not exist in the United States, where bipartisanism is almost permanent, because none of the parties practices discipline of vote.” 16 o Even though the U.S. President acts as the “chief legislator,” Congress rejects 52% of presidential legislative initiatives. 17 o As the American president lacks dissolution powers, his only solution is to bring the disagreement to the court of public opinion. 18 • In the case of France: o “The election of the President through universal suffrage is the cohesion factor essential to the majority of the National Assembly.” 19 o Another interpretation is that the French semi-presidential system “is a truly mixed system based on a flexible dual authority structure.” 20 o The genius of the Constitution of 1958 resides in that it forces an accord between the President and the parliamentary majority. 21 (c) A Prime Minister and Cabinet who remain in office at the will of Parliament 22 • The Primer Minister and his Cabinet can be dismissed by a parliamentary vote, that is, are subject to parliamentary confidence or no-confidence, or both. 23 • “The Prime Minister must obtain continuous parliamentary support.” 24 13 Elgie, at 11. 14 Elgie, at 13. 15 Sartori, at 123. 16 Duverger, Le Système, at 527. 17 de Villiers, at 595. 18 de Villiers, at 595. 19 de Villiers, at 596. 20 Sartori, at 125. 21 de Villiers, at 596. 22 Elgie, at 2. 23 Sartori, at 132. 24 Giovanni Sartori, Semi-Presidentialism. The French Prototype, in Comparative Constitutional Engineering. An Inquiry into Structures, Incentives and Outcomes (New York University Press, 1994), at 121. 4