Constitutional Law Attributions and Current Development, in - - PDF document

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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

• nly.
• 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 period1 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.

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1.3. What system is the ideal system?

• In his speech at Bayeux (Normandy) on June 16, 1946, Charles de Gaulle
• bserved 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
• f 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

• f 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

• f 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.

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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

• Presidentialism exists where the legislature lacks the power to remove

the president.

• Parliamentarism when only the legislature has the power to remove the

president.

• 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.

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(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:
• “Majority power does not exist in the United States, where

bipartisanism is almost permanent, because none of the parties practices discipline of vote.”16

• Even though the U.S. President acts as the “chief legislator,” Congress

rejects 52% of presidential legislative initiatives.17

• 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:
• “The election of the President through universal suffrage is the

cohesion factor essential to the majority of the National Assembly.”19

• Another interpretation is that the French semi-presidential system “is a

truly mixed system based on a flexible dual authority structure.”20

• 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 Parliament22

• 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.

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• Duverger Recanted:
• In 1974, Duverger altered the definition substituting the power of the

President to dissolve parliament for element (b).25 Later in 1980 he reverted his definition to the original and this became the standard English-language definition of semi-presidentialism.26

• This definition has a number of implications: for example, that

systems with weak presidents may not be classified as semi- presidential (e.g. Austria).27

• 3. A Glance at Recent French History

3.1. From 1852 to 1958 3.1.1. “Too Democratic” and Tree Solutions

• France has had fifteen constitutions since 1789. Before the Revolution, France

had “fundamental laws and above all customs,” but not constitutions.28 France’s struggle to achieve a truly democratic system has been long and painful. The Vichy regime suppressed the Constitution of 1875 because it was “too democratic,”29 a charge rejected by the Résistance.30 These forces collided with General de Gaulle who was uncompromisingly a promoter of a presidential regime, of one inspired in the American system.31 In his press conference of June 3, 1946, de Gaulle explained that there were three solutions to the constitutional problems France was facing in the Post-War Period:32

• To make the same errors of the past and elect separately a Chamber and a

Senate and then gather them in Versailles as a National Assembly that would amend the Constitution of 1875, or

• To declare the Constitution of 1875 dead and elect a constituent assembly

in charge of writing a new constitution; or

• Convoke a referendum to ask the French people whether:
• They wanted that the elected assembly be a constituent assembly?

and;

• If yes, whether they wanted that the public powers be organized in

accordance with the draft bill written in the reverse of the ballot?

25 Elgie, at 3. 26 Elgie, at 3. 27 Elgie, at 4. 28 Jacques Godechot, Les Constitutions de la France depuis 1789 (Garnier-Flammarion, 1970), at 1. 29 Godechot, at 357. 30 Godechot, at 357. 31 Godechot, at 358. 32 Godechot, at 359.

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3.1.2. No Multipartism

• Charles de Gaulle deplored the multipartism regime that was unable to give

France a stable government.33 Internally divided political parties were subjected to assaults from the extreme Left and the extreme Right.34 “Parliamentary sovereignty was a phrase to mask the unlimited power of political parties, that is,

• f party leaders (Debré).”35

3.1.3. The Making of the 1946 Constitution:

• De Gaulle resigned pressured unable to reach an agreement with the communists

and socialists. The draft constitution prepared by these forces consecrated a parliamentary system in which the National Assembly elected the President of the Republic, the President of the Council of Ministers, and the Ministers. Under that draft constitution, the President did not direct the government.36 Voters rejected this constitutional mold based on their “repugnance” of the Assembly mode.37 Thus, a second constituent assembly was elected. De Gaulle pronounced a discourse on June 2, 1946 highlighting the factors that would cause a Constitution for the French people to last: three powers separated but balanced; preponderance

• f the executive playing an “arbiter’s role” [see how this role has been taken over

by constitutional tribunals in Latin America in recent history] in order to secure the continuity of national politics and to direct the government.38 The Left prepared a draft that did not include a strong executive and which was opposed by De Gaulle who said that the draft “contained a confusion among powers and responsibilities even worst than that that brought the previous regime to disaster and abdication.”39 New changes occurred after further negotiations between De Gaulle and the Left, and the final draft was approved by 36% of the voters.

• The 1946 Constitution contained a reenvoi to the Declaration of the Rights of

Man of 1789, and also included a long bill of rights of its own.

• In this scheme, the Parliament takes a central role in the constitutional allocation
• f powers, and is composed by the National Assembly and the Council of the

Republic.40 It consecrated the exclusive and non-delegable power to legislate in the National Assembly, thus abolishing the previous practice of decree-laws in the Third Republic. The Council of the Republic retains a mere consultative role as it is conceived as a “chamber of reflection.”41

33 Suleiman, at 141. 34 Suleiman, at 141. 35 Suleiman, at 142. 36 Godechot, at 361. 37 Godechot, at 362. 38 Godechot, at 362 & 363. 39 Godechot, at 363. 40 Godechot, at 364. 41 Godechot, at 365.

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• The National Assembly is the source of executive power.42 Ministerial crises are

addressed in length in the 1946 Constitution through the power of censorship of the Cabinet. In order to counteract the effects of ministerial crises, the Constitution gives the President the power to dissolve the National Assembly. But all the precautions could not avoid the fact that in 12 years of existence there were 25 governments. The reason is to be found in the proportional electoral system in which no political party may reach absolute majority, and not even a substantial relative majority.43 The system was founded upon the omnipotence of political parties: communist, socialist, and popular republican.44 3.1.4. Crisis of the 1946 Constitution:

• By the end of the 1950s, it became absolutely evident that certain key aspects of

the Constitution had to be revised45 as the constitutional mold was facing immense challenges:

• The reconstruction of France after World War II
• The War in Indochina and Algeria (1954-1958) and the problems of de-

colonization

• Convinced many that a strong executive authority was necessary46
• A strong executive was not possible if it depended on parliamentary

majorities.47

• Constitutional challenges:
• Deposit of laws and propositions of laws
• States of emergency
• Formation of the Cabinet
• Ministerial crises
• Parliamentary immunity
• Duration of the ordinary period of the National Assembly
• Extraordinary session of the National Assembly
• The most important: concerning the dissolution of the National

Assembly

• When this happened in the original text, the President of the

National Assembly became automatically the President of the Council of Ministers, with the power to appoint a new minister

• f the interior, in accord with the bureau of the Assembly
• As in this way the Communists could access the Council of

Ministers, the President hesitated to dissolve the Assembly thus perpetuating the deadlock of the government

42 Godechot, at 365. 43 Godechot, at 366. 44 Godechot, at 366. 45 Godechot, at 367. 46 Suleiman, at 138. 47 Suleiman, at 144.

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3.1.5. Re-emergence of De Gaulle

• Internal dissents concerning the Algerian War in France and nationalist Gaullists

fighting in Algeria caused the inability of any government to survive.48 In this context, the President of the Republic appointed De Gaulle as President of the Council of Ministers. The National Assembly gave De Gaulle “full powers” for six months, with the right to revise the Constitution, much as it happened with the Roman Dictatorship model.49 A new constitutional law authorized the government to produce a new draft Constitution to be subject to a referendum: thus the Fourth Republic was dead and the Fifth Republic born.50

• A brief glance at French constitutional history shows a good deal of soul-

searching for a stable constitutional model, but it inevitably oscillates between presidentialism and parliamentarism. 3.2. The Constitution of 1958 3.2.1. Priority of Treatment of the Branches of Government in French Constitutionalism

• The French Constitution of 1848, for example, created a legislative branch

composed by the National Assembly whose 750 members (art. 20) were elected every 3 years. The President, in turn, was to be elected in universal suffrage for a single period of 4 years.

• The “imperial” Constitution of 1852, instead (Emperor Louis Napoleon)

stipulated an absolutely presidential system, where the president was assisted by the Cabinet, the Council of State, the Senate, and a Legislative Body (art. 2). The Senate, which was composed by 50 senators for life (arts. 19, 20) on a non- remunerated basis, acted as a guardian of the Constitution and public liberties. It had the power to amend the Constitution and to declare the unconstitutionality of

• laws. All public officers were required to swear “obedience to the Constitution

and loyalty to the president” (art. 14).

• The Constitution of 1875 passed after the war with Germany established the

supremacy of the National Assembly, which was composed by the House and Senate, with the power to appoint the President (art. 1, Law of February 25, 1875). The Senate was composed by 300 members (art. 1, law of February 24, 1875), with 75 elected by the National Assembly and the rest by the departments and the colonies.

• The Constitution of 1946 in turn, also gave priority of authority to the Parliament

(Title II) vis-à-vis the President (Title V). Parliament had ample powers, including the power to elect the President for 7 years renewable once (art. 29), the

48 Godechot, at 368. 49 Godechot, at 369. 50 Godechot, at 369.

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power of the purse (art. 16), exclusive initiative in budgetary issues (art. 17), and the power to grant amnesties (art. 19). 3.2.2. The President as the Dominant Political Figure

• Constitution of 1946 the President enjoyed broad appointment powers including

the power to nominate the president of the Council of Ministers (art. 45), and the

• riginal text of the Constitution mandated the President of the Republic to submit

the political agenda of the Cabinet to the National Assembly. This was later changed for consultation procedures. The President of Council has many powers concerning the implementation of laws, and in defense matters. Cabinet members respond collectively and individually of their acts and decisions to the National

• Assembly. Quorum for censure was later established in absolute majority (Art.

49).

• In some systems it is just a figurehead.51
• 4. The Interactions Between the President and the Parliament in the Constitution of 1958:

the Prime Minister is at the Center of the Real Game 4.1. Election of the President in the Original Constitution of 1958 The original text of the Constitution of 1958 provided for the election of the President by the National Assembly. 4.2. Appointment and Removal of the Prime Minister

• The Constitution of 1848 provided that the National Assembly appoints a Vice-

President from a roster of the candidates presented by the President (art. 70).

• No such power was contemplated in the original text of the 1958 Constitution.
• He is directly accountable to the National Assembly (art. 20)
• The Prime Minister is the Head of Government

4.3. Dissolution of the National Assembly in Recent Constitutional French History

• The Constitution of 1848 expressly denied the President the power to dissolve the

National Assembly (art. 51). It also forbade the President to suspend the Constitution, to dissolve the National Assembly or to impair its function under penalty of high treason.

• The Imperial Constitution of 1852 allowed the President to convoke and dissolve

the Legislative Body, which met for only 3 months a year (art. 46).

51 Robert Elgie, Comparative European Politics, Semi-Presidentialism in Europe (Ed., Oxford University

Press, 1999, reprinted in 2004), at v.

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• The 1875 Constitution permitted the President to dissolve the Chamber with the

consent of the Senate (art. 5).

• The Constitution of 1946 empowered the President with dissolution powers

provided that (i) two ministerial crises occurred within 18 months; (ii) prior

• pinion of the President of the National Assembly; and (iii) when decided by

Council of Ministers (art. 51). This power acted basically as a power of self- dissolution.

• The Constitution of 1958 gave the President almost a blanket discretionary power
• f dissolution over the National Assembly but with the limitation of only once a

year (art. 12).

• Obviously, since the Primer Minister depends of the National Assembly,

he cannot dissolve it.

• The power of dissolution puts the National Assembly in fact in a lower

position than the President.

• 5. A Coup to the System: the 1962 Amendment to the Constitution of 1958

5.1. President Elected by Universal Suffrage:

• The constitutional history of France went to a cataclysmic change in 1962 when

voters allowed the president to be elected by universal suffrage,52 which took place with the opposition from the Left.53 There was an assassination attempt against De Gaulle on August 22, 1962.54

• The referendum that came later that year and approved the constitutional

amendment constituted the birth certificate for the semi-presidential regime,55 thus transforming the President of the Republic in the major political actor of the nation.

• The presence of the Primer Minister created a hierarchical diarchy (or twin-

headed executive system) in France.56

• “The 1962 reform reinforced the already established tendency towards

presidential pre-eminence.”57 This was the point when the “balance was tipped.”58

• After 1962 France “practices a regime with an hegemonic executive.”59

52 Elgie, at 67. 53 Elgie, at 79. 54 Elgie, at 78. 55 Elgie, at 67. 56 Elgie, at 68 & 83. 57 Elgie, at 80. 58 Sartori, at 123. 59 Duverger, Le Système, at 521.

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• The French President has been called “the most powerful chief executive in the

West.”60

• The Constitution of 1958 reserved his sphere of decision to the most important

political areas:61

• The Constitution of 1958 created a complex constitutional architecture of

exclusive and shared governmental powers for the Prime Minister. Its main purpose seems to have been to avoid the installation of a “preeminent, ‘imperial’ president,”62 a “republican monarchy.”63 5.2. Exclusive Powers of the President

• Names the Prime Minister (art. 8)
• Guaranteeing the Existence of the State and the Rule of Law
• One very general prerogative is that is charged with “seeing that the

constitution is respected, with ensuring that by his arbitration, the regular functioning of public authorities and the continuity of the state and with guaranteeing national independence, territorial integrity, and the respect for international treaties.”64

• Foreign Affairs
• Direction of foreign affairs;
• Responsible for negotiating and ratifying treaties (art. 52)
• Direction of European policy.
• The “President is still treated as the main spokesperson for French

interests abroad.”

• Rarely have Presidents taken personal charge of domestic policy-

making.

• Defense
• Control over defense policy issues (arising out of the President’s

responsibility for France’s nuclear deterrent)

• Powers Over the National Assembly
• Can dissolve the National Assembly but not more that once a year (art. 12)
• Legislative Powers
• Can oblige Parliament to reconsider a bill, but only 15 days after its

passage (art. 10)

• Emergency Powers
• Can assume all law-making powers in the case of a national emergency

(art. 16)

• Appointment Powers

60 Elgie, at 72. 61 Elgie, at 69. 62 Sartori, at 122. 63 Michel de Villiers, La V ème République et le Régime Semi-Présidentiel, in La Revue Administrative,

29e Année (Novembre Decembre 1976), at 589. Also, Suleiman, at 143.

64 Elgie, at 76.

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• Appoints a certain number of political and military figures (art. 12)
• Appoints three members of the Constitutional Council including its

president (art. 56)

• Control of Constitutionality of Law
• Can submit a bill to the Constitutional Council for consideration (art. 61)

5.3. Exclusive Powers of the Prime Minister

• Direction of the Government
• Head of the Government
• Primer Minister is also a powerful political actor65
• Head of extensive governmental, administrative, and information

services

• Decides and direct the policy of the nation (art. 20)
• Directs policy-making processes;
• Runs the day-to-day conduct of government business;
• Defends the government’s record in Parliament;
• Closely in contact with the political parties and process
• Administers the armed forces (art. 20)
• Powers Over the National Assembly
• Calls for a vote of confidence in the government (art. 49)
• Requests an extraordinary session of Parliament (art. 29)
• Legislative Powers
• Directs the government's work and oversees the implementation of laws

(arts. 20-21)

• Initiates legislation (art. 39)
• Accelerate the legislative process (art. 38)
• Submits a bill to the Constitutional Council for review of constitutionality

(art. 61), a procedure called “saisine” or referral.66

• Issues decrees in the areas in which Parliament is not permitted to legislate

(arts. 21 & 37)

• Appointment Powers
• Proposes the names of government ministers to the president (art. 8)
• Makes various civilian and military appointments (art. 21)

5.4. Shared Powers between the President and the Prime Minister

• Direction of the Government
• Prime minister is the Head of the Government which decides and directs

the policy of the nation

• But the President chairs the Council of Ministers, which is the French

equivalent of the Cabinet (art. 9)

• Adoption of Executive Action and Reciprocal Veto Powers

65 Elgie, at 69-70. 66 de Villiers, at 592.

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• Prime Minister must countersign all presidential decisions (art. 19) and

has the right to veto all but a few presidential actions, which is particularly important during times of “cohabitation67”

• But the President must sign all decrees that are considered in the Council
• f Ministers (art. 13)
• Prime Minister enjoys the executive and regulatory powers that the

President cannot take away or revoke.68

• During cohabitation the President69
• May refuse to sign an ordinance, but he may not refuse to sign a

law

• Cannot instruct his ministers to adopts policies
• Cannot arbiter conflicts amongst ministers
• So the President moves from being a “near dictator” to a “lame

duck” in a matter of minutes (during the election)

• Bypassing the National Assembly
• President can call a referendum on any bill thus bypassing the National

Assembly

• But only on the proposition of the government collectively (art. 11) or the

Prime Minister personally (art. 89).

• National Defense
• Prime minister is responsible for national defense (art. 21)
• But the President is the head of the armed forces (art. 15)
• Appointment Powers
• President appoints civil and military authorities (art. 13)
• But Prime Minister makes various civilian and military appointments also

(art. 21) 5.5. Powers of Appointment of the French Civil Service System: The Other War

• French civil servants are highly competent, “represent the mythical neutrality of

the State,”70 and are supposed to transcend the administration proper

• However, in France there is a genuine politicization of the administrative

apparatus

• Of the about three million federal civil servants the President names about 2,500

to 3,000 of the most important posts,71 and also other high officers of the nationalized industries, educational and cultural organizations72

67 Elgie, at 76. 68 Maurice Duverger, Le Système Politique Français (Thémis, Presses Universitaires de France, 1985), at

518.

69 Suleiman, at 158. 70 Suleiman, at 152. 71 Suleiman, at 152. 72 Suleiman, at 153.

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• Centralism and presidentialism have made of the civil service a “spoils system”73

where in a given presidential election everybody needs to take sides and expect to be rewarded accordingly

• The threat of dissolution of Parliament when a presidential election is lost, and the

infatuation to “change society” when a presidential election is won oftentimes, and then the fear that all will be turned around when the opposite side wins the elections, has worked as an incentive for political parties to avoid unreasonably ambitious programs and to seek compromise74

• As the presidential terms lasts seven years, “losing a presidential election means a

long wait in the opposition”75

• 6. Criticism of the French Semi-Presidential System
• Between Gaullism and Multipartism
• General De Gaulle’s reticence toward political parties did not reflect in the

text of the Constitution of 1958, whose article 4 provides that “political parties and groups concurrent to the expression of suffrage. They are formed and exercise their activities freely. They must respect the principles of national sovereignty and democracy.”

• The Constitution of 1958 was custom-made to fit General de Gaulle.76
• Paradoxically, de Gaulle “who detested parties, created the first great

majority party in the country.”77

• For the Left, the presidential function is simply tolerated, but the real

political power must reside in parliament.78 This explains that the Left accepted the 1962 amendment mandating the election of the President by universal suffrage without enthusiasm.79

• Ambiguity
• “One cannot avoid being struck by the vast amount of ambiguity which is

contained in the Constitution.”80

• Actual and dormant conflicts between l’Elysée and Matignon.
• “Extraordinary complexity in the relations between the head of state and

the head of government.”81 France has seen strong presidencies from both

73 Suleiman, at 153. 74 Suleiman, at 156. 75 Suleiman, at 157. 76 de Villiers, at 590. 77 Suleiman, at 148. 78 de Villiers, at 598. 79 de Villiers, at 598. 80 Elgie, at 77. 81 Elgie, at 70.

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the Right (de Gaulle, 1959-1969), and from the Left (Mitterrand, 1981- 1995).82

• “Competition between the president and the prime minister is still an

essential element”83 of the French semi-presidential system.

• The idea that the President acts as an “arbiter” of national politics is not

credible based on both the text of the constitution that grant him broad government powers, and based on the “republican monarchical” history of France and the preferences of the French people for a strong President.84

• Between them may exist either a “pact of loyalty” or a “pact of interest,”

but not both at the same time85

• The split majority problem “still haunts – if to a far lesser degree [semi-

presidentialism] than in pure presidentialism.”86

• Obviously the most important challenge for the semi-presidential system
• ccurs when the President does not enjoy the support of a political

majority in Parliament.87 In that situation, what occurs is that a “head shifting” takes places, “by reinforcing the authority of whoever obtains the majority.”88 And perhaps “this is the most brilliant, yet unintended, piece

• f constitutional witchcraft.”89
• There is a fundamental contradiction in the semi-presidential regime. On

the one hand, there is a governmental authority different from the presidential authority. On the other, there are two types of legitimacies (two repositories

• f

national sovereignty):90 presidential and parliamentarian, and both elections are not synchronized.91

• The De Facto Constitutional Primacy of the President
• In practice, the primacy of the President is “an unwritten rule.”92
• The French diarchy “has operated to the advantage of the President.”93

82 Elgie, at 71-72. 83 Elgie, at 85. 84 de Villiers, at 594. 85 de Villiers, at 594. 86 Sartori, at 137. 87 Sartori, at 123. 88 Sartori, at 125. 89 Sartori, at 125. 90 de Villiers, at 594. 91 de Villiers, at 590. 92 de Villiers, at 590. 93 Elgie, at 72.

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• During times of political and economic crises such as that of 1968

there are problems concerning the distribution of powers and competencies, which require a swift capacity of evaluation and reaction of which “two co-pilots” lack.94 In the absence of a total compromise between the President and the Premier, the only solution is that this latter is forced to resign.95

• On the other hand, since the Primer Minister is the only one who

possesses clear parliamentary legitimacy, he is the one who can muster parliamentary support for governmental initiatives in Parliament and

• btain the number of votes necessary to pass a bill into law.96
• But based on the Constitution, the President may, in fact, remain in

power, against the will of the people.97

• The President should have the last word, and the real arbiter should be

the people through the universal suffrage.98

• In definitive
• In the Fifth Republic alternance in power is only possible by altering the

political regime from presidential to parliamentary or vice-versa.99

• The semi-presidential regime is a permanent debate,100 but in reality the

semi-presidential regime is “not a model.”101

• The Left and the Right agree that the Constitution of 1958 has given

France the political stability it lacked under the Third and Fourth republics.102 Debré (the main author of the 1958 Constitution)103 stated that, “France now is what she is because of General de Gaulle,”104 that is that a strong executive and political stability go hand in hand.105

• 7. Lessons from France: Semi-Presidentialism in Latin America?

7.1. Criticism of the Presidential System

94 de Villiers, at 591. 95 de Villiers, at 591. 96 de Villiers, at 592. 97 de Villiers, at 596. 98 de Villiers, at 598. 99 de Villiers, at 599. 100 de Villiers, at 599. 101 de Villiers, at 600. 102 Suleiman, at 140. 103 Suleiman, at 143. 104 Suleiman, at 140. 105 Suleiman, at 140.

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• It has been extensively documented that “[P]residential systems are largely

ungovernable”106 and that these systems are at “the root of Latin America’s recent ‘failed’ presidencies.”107

• There is no need of accommodation, cooperation, or search for political

coalitions, since presidentialism supersedes legislators’ partial and parochial

• interests. No need of powers to dissolve the legislature and to call for early

elections either. Political candidates need to search for the President’s support to become elected. No incentive for multipartism either since the equation is reduced to two positions: either with or against the ruling president. In parliamentarism the multipartism alternatives are almost endless.

• Therefore, the “President’s survival does not depend on any kind of legislative

support.”108 7.2. Latin American Precedents on Semi-Presidentialism

• Latin American Examples?
• The only example of semi-presidentialism in Latin America that has been
• ffered is that of the Dominican Republic back in 1999.109
• The Constitution of Bolivia of 2009 contains a provision subjecting the

President to removal by Congress.110 However, this provision alone could hardly be considered as a sufficient basis to state that that country possesses a semi-presidential system.

• It has been said that “[L]atin Americans are advised to adopt

parliamentarism, but the French have dismissed it with relish.”111

• The Same System but Different Results
• The question of why countries with the same constitutional semi-presidential

structure produce results that are so different in practice has been tackled by finding the response in four criteria:112

• Political-cultural origins of the regime;
• Selection process for presidential and parliamentary candidates;
• Relationships between presidential and parliamentary electoral

systems; and

106 José Antonio Cheibub, Presidentialism, Parliamentarism and Democracy (U. of Illinois, Cambridge

University Press, 2007), at. 4.

107 Cheibub, at 4. 108 Cheibub, at 8. 109 Elgie, at 14. 110 2009 CONST. OF BOLIVIA arts. 161(7), 171. 111 Sartori, at 135. 112 Elgie, at 15.

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• Relationship between the President and party-system coalition

building.

• Duverger, instead, identified three factors:113
• Constitutional powers of the major political actors
• Events surrounding the formation of the regime
• Nature of the parliamentary majority and the relationship between the

president and the majority

• The bottom-line, says Duverger, is that “constitutional factors remain
• nly ‘secondary compared to the other parameters.’”114

Conclusion

• Constitution of 1958 is definitely ambiguous in the type of regime it creates
• That ambiguity is the result of a lack of consensus amongst the main political

forces of France back in 1958 and today

• That ambiguity has worked in a way that the political regime that exist in a given

moment (whether presidential or parliamentary) oscillates according to the political winds in the country

• The issue of the nature of the political regime remains unsolved in France and is

brought directly to the French people by means of elections of a dissolved National Assembly and a referendum

• The merit of the system is its flexibility and the possibility that the

aforementioned mechanisms give to resort to the French people on a continuous basis, or by mere preemption under the threat by the President of making use of such mechanisms if circumstances are given

• Multipartism has yielded to the formation of coalitions due to the winner-take-all

approach that the presidential system generates, and this consequence has brought the political stability that France lacked during the prior Republics115

• In sum, the unintended effect has been political stability

113 Elgie, at 15-16. 114 Elgie, at 16. 115 Suleiman, at 147.