Nr. 17 – Klinkers, October 2012

In Paper no. 17 Klinkers says – unreservedly – 'yes' in answer to Tombeur's question as to whether a federal Europe should have an elected President. He clarifies his position by referring to the strength of America's system of checks and balances, and by pointing out the failures of parliamentary democracy in many European countries. Formally, these Parliaments may have the last word, but in practice the legislative branch of each parliamentary democracy is strangled by the executive branch. According to Klinkers, the representative democracy could best be served by giving Parliament as well as the President a democratic mandate of their own. Following the thoughts of Frank Ankersmit – with Klinkers member of the Dutch National Convention in 2006, advising on the deficiencies (among others) of the Constitution in the Netherlands – he elaborates on the representative democracy's perils.

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

In Paper no. 15 you asked me whether the Presidential right to veto draft laws made by Congress would suit a federal European Constitution as well. My answer was that this right of veto is subject to the fact that the Houses of Congress can overrule a presidential veto with a two thirds majority vote. Thus, that right of veto is by no means a legally based legitimization for dictatorial behavior, as is the case (especially in taking measures to fight the current Euro crisis) within the European Council when one of the Government leaders prioritizes national interests above common European interest.

For a considerable number of years I have been a convinced proponent of a Presidential system. Why? This question can only be answered through the elaboration of three different concepts: that of a parliamentary democracy, a representative democracy and a Presidential system.

Firstly: what is a Presidential system actually? Well, that is easy to explain: the President is elected by the people, as is the House of Representatives. Both have a democratic mandate. However, one party is entitled to decide about the matters ranging from a to p and the other party about the matters ranging from q to z. They keep each other in balance through a well-thought system of consent, veto or majority votes. Within the trias politica this is the previously mentioned ingenious system of checks and balances, preventing one of the three branches from ruling structurally over the other. However, there is one disadvantage: the possibility that due to a conflict between Parliament and President a stalemate occurs, for a while. Yet it is preferable to now and again have a stalemate – always solved through negotiations and compromises – above a system in which one of the parties is always the boss, as is the case in a parliamentary democracy. In a presidential system the President is not responsible and accountable before Parliament. Nor vice versa. Both are responsible and accountable before the people. Just as it should be.

Why I am no longer a proponent of parliamentary democracy? Because actual parliamentary democracy no longer corresponds with its formal constitutional description. A parliamentary democracy means that Parliament appoints the Government, which implies that it can send the Government away when it deems this necessary. When we look at parliamentary democracies in European countries we see – to varying degrees – that the legislative branch slowly becomes swallowed up by the executive branch: the executing Government rules, with Parliaments running hopelessly behind them. In all these countries, to varying degrees, a process of departmentalization has taken place; a process of specializing, linked to the administrative agenda of ministries. Thus a process of ‘officialization’ of parliamentary decision making has taken place. Nowhere do we find the political agenda being determined by the representative body. Through coalition covenants or similar agreements, designed by small groups of people who usually thereafter occupy the executive seats, Parliaments find themselves outside of the decision-making game, only able to co-govern with Government; or to send the Government away – since it is not possible for Parliament itself to determine and adjust the political agenda, except when the coalition wants it. The highly praised parliamentary democracy is a pacifier. It does not stand for Parliament, nor for Democracy. The executive power decides, and that is final.

In my view this is contrary to the constitutional goals of a parliamentary democracy. That is why I reject, on the basis of unwritten constitutional law, the legitimacy to rule by coalition covenants. That is a perfidious instrument. A parliamentary majority agrees once on that coalition covenant and then Parliament can go home. The opposition is left desperately searching for holes in the covenant to apply some leverage. In a presidential system, however, a coalition covenant is not necessary. Parliament itself decides on its political agenda, the President executes Parliament’s decisions and can execute his own agenda next to that of Parliament – provided that he acts within this specific system of checks and balances controlling the relation between Parliament and the President.

My dissatisfaction with the structural shortcomings of a parliamentary democracy have increased through the years. But I did not see a solution until I had the privilege, in 2006, to become a year-long member of the so-called National Convention of the Netherlands. A group of fourteen people, appointed by the Cabinet, and assigned with, among others, the task of detecting defects in the relations between Government and Parliament. During our debates in the National Convention it was Frank Ankersmit particularly, now emeritus Professor in the Philosophy of History, who denounced mercilessly the deficiencies of ministerial responsibility within the parliamentary democracy. With well-put arguments he demonstrated that this unblessed state of affairs can only be stopped by electing the Prime Minister. Thus granting to this functionary his own set of powers, based on his own legitimization by having a democratic mandate. Ankersmit’s reasoning eliminates the shortcomings of a parliamentary democracy, which is formally entitled to hold the Government responsible, but which in fact can be pushed to either side by that Government. Which is why I do not understand that James Kennedy, Professor in History, writes in NRC Handelsblad of November 3rd, 2012, under the title ‘Grootmacht drijft lui op de stroom’ (‘Big power floating lazily on the water’), that in his opinion the federal organization of the USA is outdated in this century. He says, among other things: “It is no wonder that most democracies in the world have opted for a parliamentary rather than a presidential form of government.” It seems to me unjust praise for parliamentary democracy. For many years this system has not worked.

Larry Siedentop summarized the bankruptcy of parliamentary democracy on the European level in the following words (Knack, December 21st, 2011): “It began incorrectly with the hasty introduction of direct elections for the European Parliament. These direct elections should have granted the European integration a certain legitimization. (…) But these direct elections for the European Parliament have had the evil result that the national political class, whenever it suits, can dissociate itself from the European project. And that is fateful for both the national and European politics. Because today national parliaments possess legitimacy but no power, the European level possesses little legitimacy, but is drawing all powers to itself. For democracy in Europe this can only have severe consequences.”

Previous Papers have clarified that the thirteen Confederal States – each in its own way – in the eleven years between their independence in 1776 and the Convention of Philadelphia in 1787 attempted to assume the form and content of a State, both on a constitutional and an institutional level. Consequently, as a result of the lack of one leading motive for all Confederal States, an unworkable amount of different systems arose. Particularly the debates about the concept of ‘democracy’ – thus about the question ‘who is the boss in our State’ – created so much unrest within the Confederation that they deemed it wise to organize a Convention which in the end lasted for months. Dozens of fundamental questions were addressed and systematically they were dealt with. With regard to the concept of ‘democracy’ they decided after much wrangling to adopt the ‘Republican form’. In our European terminology: the representative democracy.

This brings me to the elaboration of the concept of a representative democracy. As Europeans, we tend to identify a representative democracy with a parliamentary democracy. However, they are poles apart. The essence of a parliamentary democracy is that Parliament appoints the members of the executive power and holds them responsible for their execution. Under the representative democracy that we see in the American Constitution this is not the case. In 1787 they opted for a draft Constitution which, at the moment of coming into force next to the system of representative democracy (here: representing the people and the States), boasts a full presidential system. That is why in my opinion the representative democracy of the draft federal European Constitution should not be a parliamentary democracy, but a Presidential system. Thus, a Parliament elected by the people, alongside a President also elected by the people.

Once again, the combination of a representative democracy with a presidential system implies that the two Houses of Parliament, as well as the President, possess their own democratic mandate. The people elect the representatives of the legislative branch, but also the leader of the executive. They stand next to each other. No subordination. Once a year the President unfolds his plans before Parliament and has to ask the consent of (one of the) Houses of Parliament for some of his powers, as enumerated limitatively in the Constitution. However, beyond that he can execute his powers as he wishes. Federal parliament cannot demand of him, nor of one of his Ministers, to show up in Parliament in order to be questioned regarding the way in which those powers have been applied.

A Presidential system frees the legislative branch from the stifling grip of the executive branch, which is the case in a parliamentary system. A federal Parliament makes the laws and safeguards therefore by itself, thus on its own initiative and with its own sources of information – but within the range of the federally assigned powers – what is good for the whole Federation. Together with his Cabinet, the President has to carry out these laws, but he can make and execute policies on his own account, except for matters requiring the consent of the Senate. Other than is the case in strict parliamentary democracies the executive branch does not have the means to stifle the legislative branch. The people’s representatives do not need to dance to the tune of the executive branch.

A second aspect in the context of the democracy concept deserves attention. Strictly speaking, according to political theory, true democracy exists nowhere in the world. How is that?

Previous Papers have sufficiently explained how the classical Westphalen concept of ‘sovereignty’ controlled the world order between 1648 and 1945. As of 1945 it gradually lost its constitutional significance within several decades. Nowadays no country in the world is in all respects master in its own house, because almost all are member of one or more intergovernmental systems. By virtue of their membership of international organizations – combined with treaty obligations – these organizations may demand of their members to comply with the decisions, taken above their heads. And if they cause trouble, they can be controlled by ‘blue helmets’, operating under a UN mandate. So much for sovereignty.

Everywhere in the world concepts of sovereignty have been replaced by intergovernmental systems. These systems, however, are stuck between the necessity to cooperate (thus handing in sovereign powers) on the one hand, and a desperate clinging to ‘own interests first’ on the other hand. That is why intergovernmental systems are intrinsically weak. And that is why the European intergovernmental system is clinically dead. I will not repeat the facts and arguments for this statement, but instead will draw your attention to an aspect of ‘democracy’ that has been dominating the discussion for years, and which was discussed thoroughly in the Convention of Philadelphia.

Political theorists claim that ‘democracy’ as such does not exist anywhere in the world. The basis for that claim is a simple linguistic matter. In the documents of the ancient philosophers democracy was a contraction of the Greek words ‘demos’ (people) and ‘kratein’ (to rule). Translated, ‘democracy’ means no more and no less than that the people rule. During the French Revolution and the Confederal phase in North America this concept came up in the word ‘popular sovereignty’. One of the primary political theorists of modern times, Jean Jacques Rousseau, is probably the author of that concept.

However, few know that Rousseau – together with other political theorists then and now – indicated clearly that democracy in the sense of popular sovereignty, thus as a mechanism of decision making by the whole people, could not exist. It is organizationally impossible – a conclusion that was also drawn by the members of the Convention of Philadelphia – that a whole community always takes all decisions for that community. This may be feasible in small communities – far away from the world, where it is still customary to decide communally about matters of common interest. However, when a member of such a small community says to his neighbor “I have to go fishing today, otherwise there will be no food tonight, you may vote on my behalf in the communal meeting” the concept of representation arises. What we, for the sake of convenience, call a ‘democracy’ is in the context of political-constitutional principles a ‘representative democracy’.

Well, this has a sour side-effect. Representative democracy is the natural enemy of democracy. Democratic decision-making through representation is no democracy as meant in the context of popular democracy. Therefore the word ‘democracy’ in ‘representative democracy’ is misleading. The essence of democracy is the fact that general decisions (thus decisions taken jointly by everyone) by definition aim at the general interest, even if that decision making would aim at furthering a partial interest. If the whole community takes a decision, actors and interests are identical: they coincide. In the case of popular sovereignty the people are the general interest and the general interests are the people.

This is completely different with respect to a representative democracy. Where democracy – as an evident necessity – has to be organized through representation, actors coincide with groups-interests. In a representative democracy the interests of the group determine the democratic decision making. And since group interests are the natural enemy of general interests, so is representative democracy the natural enemy of democracy in the sense of popular sovereignty.

Of course, the people’s representatives pretend that their decisions aim at furthering the general interest, but that is impossible. How honorable and well-meant their purpose may be, how active and deeply felt their perception of the general interest may be, their decision making is by definition only an interpretation of what they perceive to be the general interest, because a group or a collection of groups cannot coincide with the general interest.

In his farewell lecture as Professor at the University of Groningen (the Netherlands) on April 12th, 2010, Frank Ankersmit labels the collection of representatives an ‘elective aristocracy’. Thus, a group of elected gentility. Ankersmit draws this description from Rousseau. At that time, thus at the end of the 18th century, it was self-evident for Rousseau (champion of popular sovereignty) and for all political theorists after him, that a representation of the people at best could be called an elective aristocracy.

As long as aristocrats honor their name there are no objections. If making decisions for the people necessarily has to be done via representation, one could best be served by aristocrats. Indeed, aristocracy has the connotation of decency, modesty and the presumption of aiming at the general interest, although by definition that is impossible. However, when aristocrats unite in groups, let us call them political parties, and when they, in their undoubtedly sincere endeavor at serving the general interest, try to acquire the post of a representative, they can do this only by promoting the interest of their own group, the political party of which they are a member. Political parties, therefore, are by definition interest-groups who draw their existence and survival from the professional expertise with which they can convince the electorate that their perception of the general interest is best served by opting for that party, and therefore for that interest.

And there begins the problem of a representative democracy. Because it organizes decision making for the people through the medium of interest groups, it is ‘oligarchy prone’. By this I mean that within the elective aristocracy the seed of oligarchy is enclosed. Any representative democracy can deteriorate and become a concentration of power in the hands of a few, an oligarchy. In Ankersmit’s words: “We can try to change our representative democracy in such a way that it becomes a real democracy. The other possibility is that we decide to reconcile ourselves to the fact that our political systems are in fact aristocracies, to do as a next step everything possible to prevent these aristocracies from degenerating into egoistic oligarchies, controlled by cronyism, nepotism, cooptation and self-enrichment. All flaws that [blossom widely] in our present-day political systems, as is well known to any newspaper reader.

Dear Tombeur, does the European Council – compared by you in Paper 7 to the French Directoire (1795-1799) – not nastily resemble what Ankersmit is explaining here?

The representative democracy, as a mechanism of decision making through channeling group-interests, does not only tend to degenerate into oligarchical threats but is often also serving personal interests. By legitimately acquiring a post within the democracy, unpunished, the wrong people can take the democracy hostage and have it functioning favorably to group and personal interests. They hijack democracy with legitimate instruments and keep it hostage for their own benefit.

In full awareness that the potential for degeneration of the representative democracy into an oligarchy can arise in any democracy, I share Ankersmit’s view, and also his reconciliation, that an elective aristocracy is the second-best method of decision making for the people. I quote Ankersmit once more: “One cannot transform an aristocracy – elective or not – into a democracy, like you cannot make a dog from a cat and vice versa. You should not try it.” These are exactly the same considerations as discussed by the members of the Convention of Philadelphia in 1787, which finally resulted in opting for a representative democracy, seen as the only possibility to take decisions in the interests of the people.