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Saturday, June 26, 2004

Designing the state: systems of government

Male’, Maldives, June 25 -- Below is the full text of the speech by Professor Yash Ghai at the UNDP-assisted Law Society of Maldives lecture on “Systems of Government” held Wednesday at Tajudin School:  (source : HNS www.haveeru.com.mv )

INTRODUCTORY REMARKS

Perhaps the most important decision in making a constitution is the system of government. The system of government is fundamental to the design of the state, particularly the structures of state and the allocation of powers among them. It determines the composition and powers of state institutions and the manner of the exercise of these powers. It also regulates the relationship between the organs of state, and between them and the people. Because state power is deployed through the organs of government, access to and control of these organs becomes a critical issue in governance. Politicians in particular take great interest in the system of government, and the issue can also easily become controversial. There is also considerable debate among academics on the theories and relative merits of different systems.

Today there are three or four systems of government. But there are differences even within each principal type, producing a great variety of systems. In one or more countries, each of these systems has worked well. So it is hard to say that one system works better than another. Much depends on the context. The context itself is determined by traditions and history, how society has been governed over long periods of time (and therefore familiarity), the influence of colonial or similar experience, etc. The context is also constituted by a country’s socio-economic situation, ethnic diversities, demographic and even geographical factors. A powerful influence in recent decades has been the global context, in which the paradigm of the modern state is replacing traditional modes of governance. The modern state has its own logic and dynamics (e.g., the concentration of power and force, the consequent need for safeguards, the hardening of state borders, the marketisation of the economy, and new modes of decision making and participation across communities and vast geographical distances, etc), apart from the membership of international and regional organisations and the pressure to conform to global norms.

In this, somewhat abstract paper, I aim to sketch out a number of considerations and models in the hope that they might assist those who have to review or prepare constitutions. Since constitutions are still primarily concerned with the state, the first step might be to identify the responsibilities and tasks of the state.

IDENTIFYING THE TASKS OF THE STATE

In deciding how the powers of the state are to be allocated and exercised, it is useful to identity the most important of these powers:

• In the modern state, one of the most important powers is to make laws. In older societies, law making was not so important: tradition was strong and change slow, and the role of law was to maintain stability. In the modern state, on the other hand, economic development and social change are emphasised, and the role of law is to establish the framework for policies and institutions to promote change and development.
• Laws are made after appropriate policies have been made; policy making and the implementation of policies are key functions of the state;
• Another key function is the management of the economy; the modern economy, whether based on central planning or the market, is infinitely more complex than the pre-colonial. Many factors go into the making and managing of the modern economy—production of goods, the capital and labour necessary to generate production, relations between employers and employees, management of resources and marketing, the provision and guarantees of sound currency, banking and insurance services, transport and other infrastructure, a fair and effective legal system, education and training, relations with other economies and international economic institutions, etc. In a market economy many of these tasks are performed by individuals and companies, but the state has to provide the constitutional, legal and institutional framework for the market to function, and to ensure the proper co-ordination of the various components of the economy;
• A primary responsibility of the state is to ensure law and order, security of its residents, and the defence of the republic against external attacks. It has to ensure the recruitment, training, and discipline of the police and armed forces to assist in these tasks. It has to provide and enforce laws which protect people’s lives, families and property. It must safeguard national resources, not only for the present but increasingly for future generations.
• In a modern state and society there are many disputes about a variety of matters, between: members of a family, manufacturers and consumers, trading partners, employers and employees, citizens and public authorities, landlords and tenants, etc. The satisfactory resolution of these disputes is essential to the security, stability and economic and social development of society. It is the ultimate responsibility of the state to ensure mechanisms and procedures for the resolution of disputes;
• The state has also ultimately the responsibility for ensuring national unity and social cohesion, to fostering a sense of public responsibility and commitment to the public good. Many states do this by ensuring fair distribution of resources across the country and social classes, providing symbols of the unity of the nation, civic education in schools and other institutions, and honest government which is responsive to the needs of all citizens and communities. In multi-ethnic societies, the state should also ensure that all communities are fairly treated, and that they benefit equally from laws and state policies, and even in societies that are relatively homogenous it may be necessary to take positive steps to ensure fairness to all.

ALLOCATING THE TASKS: DIVISION OF RESPONSIBILITIES BETWEEN DIFFERENT LEVELS OF GOVERNMENT

One of the most important decisions about the design of the state is whether the system of government is to be unitary or federal (or some other form of devolution). Both unitary and federal systems can include different systems of government (such as presidential or parliamentary), but the powers of the central authorities, and to some extent their structure, depend on this decision. My discussion is confined to the structure of the national government, under the assumption largely of a unitary state. However, it is important in archipelagic states like the Maldives not to overlook the fact that governmental and community power and authority are exercised in the outreaches of the state, at vast distance from the ‘centre’, and even in unitary states, they should not be completely subordinated to the centre. The state cannot be democratic if its parts are not, nor can national unity be maintained if ‘distant’ communities feel marginalised. The recognition of these communities can be secured not necessarily by devolving power to them but by facilitating their participation in national processes of policy- and law-making. I can think of the constitution of at least one small archipelagic state in the South Pacific under which the national legislature cannot proceed to the final enactment of a legislative bill before giving its various islands an opportunity to debate and comment on the bill.

ALLOCATING THE TASKS: THE DIVISION OF RESPONSIBILITY BETWEEN THE STATE AND CIVIL SOCIETY

Constitutions generally restrict themselves to allocating these tasks among organs of the state. But it is some times useful to think of these tasks as ‘in a state or political community’ rather than ‘of the state’. In this way we can address the question whether all these tasks should be given to the state or whether they can or should be divided between the state and non-state institutions. We know that in a market economy, many tasks—the provision of health, education, production and exchange, for example—are performed by non-state actors. We also know that the values of moral and civic responsibility are promoted by religious, professional and other civic organisations, and that civil society likewise provides educational, health and other services. Civil society provides opportunities for policy making and people’s participation in public affairs, and plays a formal or informal consultative role in law making, as well as in the implementation of laws or policies. A large number of disputes are settled through civil society institutions—and settled satisfactorily, reducing the load on state institutions. In these ways civil society supplements the efforts of the state. At other times it can provide a counter-balance to state institutions and act as a mechanism for lobbying and accountability of public authorities.

We can therefore think of the relationship between state and civil society as in part complementary and in part ‘competitive’—but conducted within, and with joint commitment to, the values and unity of the political community. Many constitutions assume, but do not expressly provide for, this relationship, although specific laws are increasingly recognising the roles of civil society institutions. The question is whether the constitution should have provisions for the role of civil society and if so, what should they be? We should not think of democracy only in statist terms. People’s participation in public affairs throughout the period from one general elections to another is critical to the deepening of democracy.

ALLOCATING POWERS AMONG STATE ORGANS

Unlike traditional political communities, where many of these powers were concentrated in a single body, such as the monarch, chief, or the council of elders, in a modern state they are usually vested in different organs. It is usual to divide the tasks which are identified above into three broad categories: legislative, executive and judiciary (or the making of laws, the execution of laws, and the interpretation and application of laws) and to vest them in three separate institutions—parliament, the executive and courts respectively (the fact that all three functions are described in terms of laws shows how important law is to and in the modern state). However they do not fully capture the complexity of modern society and the tasks that consequently fall on the state. We need to subdivide powers within each of these broad categories to guide us in the design of fair and effective institutions. But let us first examine why the modern state divides powers in these ways and why they are assigned to different organs of state.

The reasons for dividing powers and allocating them to different institutions include:

• to reduce the burden on any one particular institution, and to distribute the work load
• different powers need different expertise: for example, the skills required to make laws are different from those necessary to interpret the law
• the separation of institutions makes it possible to ensure that each institution is qualified for its functions: thus policy making is pre-eminently a political task and so best done by representatives of the people (hence an elected assembly), the implementation of laws and policies require technical and administrative talents for which a qualified ministers and public service is necessary while the interpretation of law and its impartial administration requires education in and practice of the law
• the separation of powers and institutions limits the power of any one institution and reduces the possibility of the dominance of one institution over other institutions and the people,
• the separation of institutions also facilitates ‘checks and balances’, so that each institution can keep a check on the other, and some key decisions may require the participation of more than one institution (e.g., in the US, the president nominates senior officials and judges, but their appointment requires the consent of the Senate),
• in recent history, in order to ensure that certain key state functions which are necessary for a democratic and accountable society are discharged fairly and without a political bias, these functions are given to expert and independent bodies, which are separate from other main organs of the state. A classical example of this is the courts, but now there are independent electoral commissions, public service commissions, auditor-general, attorney-general, anti-corruption authorities, etc

However, it is important that the concern with the separation, limitation and accountability of powers should not undermine the effectiveness of state organs. The model of separation and limitation is based on a concept of the state which performs a strictly small number of tasks, and leaves most decision making to private actors, especially in a private and decentralised economy. Such a concept is not very realistic today, even in the west. State organs needs a sufficiency of powers and effectiveness for many reasons, particularly to:

• promote economic, social and cultural development
• equalise or redistribute economic wealth and opportunities so that every citizen has access to basic need
• manage and co-ordinate the framework of the economy, an urgent task in a globalising economy when the frontiers of all national economies are being dismantled
• protect the environment without jeopardising industrial development
• manage and resolve ethnic and other conflicts
• provide relief during natural and human made disasters

The challenge therefore is to marry the separation and limitation of powers with the effectiveness of state organs. Fortunately, giving wide powers to state institutions need not mean abuse of powers if there are enough safeguards and power is exercised responsibly, transparently and in accordance with legal and administrative procedures. Thus the greater the power of an organ, the greater the need for safeguards and accountability.

CRITERIA FOR ASSESSING SYSTEMS OF GOVERNMENT AND INSTITUTIONS

It is thus clear that there are no simple or clear criteria for assessing the worthiness of systems or institutions, but require the balancing of the following values and goals:

• democracy and representation
• participatory
• accountability
• transparency and honesty
• inclusive and consensual
• stability
• professionalism
• effectiveness

SYSTEMS OF GOVERNMENT

Systems of government are determined by:

• the powers and functions of principal organs of state;
• the structure of these organs; and
• the relationship between them.

The principal organs are the legislature, the executive (which in turn can be divided between the political executive and the public service) and the judiciary. There is wide consensus on the functions, structure and composition of the judiciary, but less so on the other aspects of the systems of government. Here I examine the legislature and the executive. The nature of the executive and the legislature is determined by supporting institutions, like the electoral system, the role of political parties, and the existence and operation of independent institutions. (To give an example, parliamentary systems which have the single member constituency in first past the post electoral system, as in Britain or Canada, which lead to two major parties, can work in strikingly different ways from similarly structured European parliamentary systems which conduct elections on a proportional representation system that produce multiple parties). Now we look briefly at the functions of the legislature and the executive.

THE LEGISLATURE

The functions of a legislature in a representative democracy are:

• to represent the people
• to make laws
• to oversee and hold the executive accountable by:
o passing laws, or amending or rejecting those presented by the government
o parliamentary questions and motions
o the vote of no-confidence (this role is seldom available in presidential systems), and
o exercising the power of the purse by determining budgetary appropriations and ensuring the legality, honesty and efficiency in the use of public revenue
• to provide a forum for debating and resolving national issues.

FUNCTIONS OF THE EXECUTIVE

Functions of the executive include:

• to carry on the work of the government;
• to make and implement policies (policies have to be compatible with the law, but normally there is wide discretion for making policy)
• to prepare and present bills for making laws to the legislature
• to enact subsidiary laws, that is, regulations which are made under the authority of a law
• to facilitate the operation of the economy
• to manage state revenue
• ensure internal and external security
• enforce the law
• conduct foreign relations
• provide services

CATEGORIES OF SYSTEMS

Most modern systems of government in the world can be classified into three categories:

• parliamentary
• presidential
• mixed.

THE PARLIAMENTARY SYSTEM

In a parliamentary system the head of state is separate from the head of government (although in recent years the two posts have been combined in a parliamentary system in a few countries, such as South Africa and Kiribati). The head of state in a parliamentary system is either a monarch as in Britain or a President as in India, the latter normally elected by the legislature. The head of government is the prime minister. The prime minister and the cabinet have to be appointed from among the members of Parliament.

In most parliamentary systems the President appoints the prime minister, but must choose the member of Parliament who has the support of the majority of parliamentarians, which usually means the leader of the majority party or of a coalition of parties which together have the support of the majority. Some times the prime minister is appointed by or on the advice of the speaker of the legislature (as in Sweden), and occasionally the prime minister or ‘parliamentary president’ is directly elected by the legislature (as in Papua New Guinea, Solomon Islands, and South Africa). The prime minister appoints the members of the cabinet.

The President may also in some circumstances have the power to remove a government, but otherwise his or her role is mainly ceremonial. The real power of government is vested in the cabinet, acting under the prime minister. The cabinet operates on the principle of collective responsibility, which means that decisions on policy must be made by the entire cabinet and defended by all ministers.

The government is at all times responsible to Parliament and must explain and defend its policy to its members. Parliament can at any time remove a government by passing a vote of no confidence. In many parliamentary systems the prime minister can also ask for and secure the dissolution of Parliament (which results in a general election).

PRESIDENTIAL SYSTEM

In the presidential system, the executive power is vested in the president. There is total separation between the executive, that is, the president, and the legislature. The president is elected directly by the people as is the legislature. Neither the president nor any member of his or her cabinet can be a member of the legislature. The life of the president and the legislature are fixed. The president cannot be removed by the legislature on a vote of no confidence (but may be removed for serious misconduct by a formal process known as impeachment) and the president cannot dissolve the legislature. The president appoints his ministers and senior administrators, although their appointment requires the approval of the legislature. Normally all executive functions are vested in the president, and the role of the cabinet is merely to advise the president. The president and the majority of the legislature are not necessarily from the same political party, and the president has far less control over the legislature than is usually the case in a parliamentary system. But, since all laws, including the adoption of the budget, have to be passed by the legislature, the president has to work with the legislature to ensure that the president’s policies and plans can be carried out.

PARLIAMENTARY AND PRESIDENTIAL SYSTEMS COMPARED

We can summarise the major differences between a parliamentary and a presidential system like this:

• in the parliamentary system there is no sharp separation between the composition of executive and the legislature as there is in the presidential system
• there are more checks and balances in presidential system but there is continuing accountability of government to the legislature in the parliamentary system as the prime minister and ministers sit in Parliament, having constantly to defend their policies, and are subject to a vote of no confidence
• ministers have to be members of Parliament in most parliamentary systems (but not in France), but in a presidential system a member of the legislature cannot become a minister unless s/he resigns from Parliament , but apart from this the President has more choice of ministers
• there will usually be a fixed term for both executive and legislature in a presidential system, producing a kind of stability, but system works more smoothly in the parliamentary, unless there is an acute fragmentation of parties, for the government has a majority in the legislature
• in the parliamentary system there is a separate head of state from head of government
• the head of government is elected directly in presidential systems, but appointed or elected by a small electoral college in parliamentary systems
• the head of government in the parliamentary shares responsibility with the rest of the cabinet, but is sole authority in a presidential system
• the principal form of control and accountability in the parliamentary system is political, although, since the constitution is the supreme law of the land, the courts could declare that laws and policies which violate the constitution unconstitutional and void. In presidential systems there may be more use of the law to deal with political issues
• the parliamentary system is in some ways more suited for accommodating diverse interests/groups; for example the position of head of state can be used to recognise minorities (perhaps by rotating the headship among groups which can never hope to control government) and by the distribution of ministries among different groups.
• On the other hand, in a presidential system where the president is not restricted in his choice of ministers, he can distribute portfolios among political and ethnic groups.
• A major contrast between the two systems lie in the way they deal with deadlock between the executive and legislature. The parliamentary system operates on the continuing support for the executive in the legislature. Deadlocks are resolved in one of two (interconnected) ways: dismissal of the executive through a vote of no confidence (when the legislature in command) or the dissolution of the legislature (when the legislature is weak) (although what route will be taken depends on whether the executive can seek the dissolution of the legislature, and fresh elections, in case of a vote of no confidence). In the presidential system, where the president cannot dissolve the legislature nor can the legislature dismiss the executive, there is no easy way to resolve the deadlock (and prevent immobilisation of the politics and administration) —a good president is one who can flatter, cajole or ‘bribe’ the legislature to secure its co-operation.

MIXED SYSTEMS

Some countries have tried to combine the strong and stable government which is often associated with the presidential system with the more democratic and accountable system of the parliamentary system. The best known example of this comes from France, which has been copied in its original form, as in Sri Lanka and many African francophone states, or in a modified form as in Portugal and Finland. The French system was established in 1958 to stabilise the political system which was previously parliamentary when France experienced frequent changes of government. In it, the powers of the executive are divided between the President, who is not responsible or accountable to the legislature, and the prime minister and his or her cabinet, who are responsible to the legislature. The president can dissolve the legislature, but only after consultation with the prime minister and the presiding officers of the National Assembly and the Senate and only once in a year. Parliament controls its own time table, but the president can convene extraordinary meetings.
Most powers of government belong to the prime minister and the Council of Ministers, but the president has important (and somewhat vague) powers to defend the integrity of the republic and to safeguard the constitution. The president is elected directly by universal suffrage. The president appoints the prime minister, but effectively the prime minister has to command majority support in the lower house, the National Assembly. The normal rules of the parliamentary rule apply in relation to the cabinet and the legislature, including the powers of the National Assembly to dismiss the government on a vote of no confidence (there is no such power in relation to the president). When the president and the prime minister come from the same party, the system works largely as a presidential system, and when they come from different parties, they frequently disagree and the system does not work well. Whether it operates more like a presidential or parliamentary system depends on the relative political strength of the president or prime minister, but the bias is towards the parliamentary, for despite the intention to create a strong executive, the powers of the president are regarded as exceptional to deal with acute national crisis, while the normal working of government depends on continued support for it in the legislature.

SYSTEM OF POWER SHARING

In both the presidential and parliamentary systems, all the powers of the executive go to the winning side (‘winner takes all’ systems). The losing party has at best the role of the official opposition, its task being to criticise government policies and activities. Both systems are adversarial, that is to say, that the winning and losing parties are locked into a conflict. Some times these systems are criticised for creating or reinforcing political divisions and excluding one group completely from access to power. It is said that such systems may be acceptable in states which are homogeneous, for it is likely that election victories will periodically swing from one party to another, so that the loser has merely to await its turn. However, in a state where people are divided by ethnicity or religion, the minority communities may be perpetually in the opposition and will therefore become dissatisfied and reject the system. In such situations, ways must be found to include all groups in the legislature and the executive, so that no group is left out. Various electoral systems have been proposed to ensure fair representation of minorities—these are discussed later. The typical way to ensure the inclusion of all groups in the executive is power sharing in the cabinet.

Power sharing is often practised when a civil conflict has ended to manage future relations between the ‘warring’ parties. The first government after the end of apartheid in South Africa, as established in its interim constitution, brought into the cabinet all parties which had at least 20% of the membership in the legislature, so that the ANC led by Mandela, the NP led by de Klerk, and Inkatha Party led by Buthelezi became partners in government. The constitution of Bosnia-Herzegovina, in which there are different major ethnic communities, is based on power sharing in all state institutions, including the judiciary. The current scheme for the restoration of democracy and normality in Burundi is based on power sharing, as is the Good Friday agreement for peace in Northern Ireland. The 1997 Fiji constitution provides for power sharing by all parties which have 10% of parliamentary seats. For obvious reasons, power sharing is easier in a parliamentary system than in the presidential, for in the latter power is vested in one person, ministers being advisory. However, power sharing governments are not easy to operate, and may lead to the loss of the accountability of the executive as all leading parties are part of it. South Africa decided not to continue with power sharing when it adopted the final constitution, and serious difficulties have arisen in its operation in Bosnia-Herzegovina, Northern Ireland, and Fiji. It is therefore being suggested that while power sharing is useful, even necessary sometimes, to consolidate peace after the end of conflict, it should be a transitional rather than a permanent feature of the constitution.

 

 

 

 

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