Constitutional Sources of Party Cohesion: Anti-Defection Laws Around the
World
Csaba Nikolenyi ([email protected]) Department of Political Science Concordia University Paper prepared for delivery at the Oslo-­‐Rome Workshop on Democracy, November 7-­‐9, 2011. Financial support for this research was provided by a Standard Research Grant from the Social Science and Humanities Research Council of Canada. Earlier versions of this paper were presented at the 2010 Midwest, the 2010 Canadian Political Science Association Meetings, and the Halbert Workshop on Canadian and Israeli Political Parties in June 2011. The comparative politics literature on institutional design has focused exclusively on two institutional choices that arguably have the most powerful impact on the way in which a new constitutional regime will operate: the electoral system, which determines the balance of power in an elected legislative body; and the relationship between the legislative and the executive branches of government (Elster, Offe and Pruess 1998; Shugart and Carey 1992). An important part of this literature is the debate on what type of constititonal arrangement is more likely lead to politicaly stable democartic regimes. Critics of presidential systems pointed to the zero-­‐sum nature of presidential politics, the temporal rigidity inherent in fixed executive terms in office, the conflict caused by the competing democratic credentials of the two branches of government, the accessibility of political power by outsiders (Linz 1990a, 1990b). Others have taken a less pessimisitc approach by pointing out that there is variety of constitutional arrangements of presidential authority with different effects on regime survival (Shugart and Carey 1992) and, more recently, noting that it is not presidentialism per se but rather the “authoritarian legacy of states with presidential constitutions that lead to more frequent incidents of demoratic collapse (Cheibub, 2007) Advocates of both presidenital and parliamentary systems recognize the important role that political parties play in the political dynamics that unfold under either of these constitutonal arrangements. However, there are different views about the nature of the causal relationship between political parties and the constitutional design of the political system. Some argue that constitutional design 2 shapes the internal organziation and behaviour of political parties (Huang 1997; Linz 1994; Samuels and Shugart 2010). The central thrust of these argument is that presidenital constitutions create weak and indiscipined political parties relative to those in parliamentary systems. On the other hand, others recognize that it is the nature of political parties that can make a particular constitutional structure work effectively or not. Sartori (1994:94-­‐95) points out that the effectiveness of parliamentary systems require “parliamentary fit” political parties, “that is to say parties that have been socialized (by failure, dura tion, and appropriate incentives) into being relatively cohesive and/or disciplined bodies . …disciplined parties are a necessary condition for the ‘working’ of parliamentary systems” (94). Either way, political parties are never considered as a direct object of constitutional design and engineering; whether parties are weak, or strong; disciplined or incoherent is normally understood to be either the result of incentives generated by other institutional factors, such as the constitutional desing of executive-­‐legislative relations or the electoral system (Carey, 1995), or other non-­‐institutional variables at work. This objective of this paper is to draw attention to an understudied area of constitutional engineering that has direct and immediate bearing on political parties, specifically their behavior and discipline in the legislature. A growing number of states, 40 at present, almost all of them new or semi-­‐democracies, have adopted constitutional clauses that impose penalties on individual deputies if they leave the parliamentary group of the party that elected them to office. In most cases, these penalties are severe and result in the defecting deputies’ loss of current 3 mandate. Such anti-­‐defection clauses have a potentially powerful parliamentarizing effect on the internal organization of political parties by virtue of enforcing party discipline in the legislature In other words, such measures force political parties to become the kinds of parliamentary fit political parties that Sartori considers a precondition for a successful operation of a parliamentary system. On the other hand, anti-­‐defection clauses also strengthen the leadership of political parties vis-­‐a-­‐
vis individual deputies. The threat of disqualification is backed by the credible enforcement mechanism of the constitution, which can tremendously increase the party leader’s autonomy and freedom from party constraints. Through these processes, anti-­‐defection clauses also presidentialize political parties. This paper has two objectives. First, it examines the distribution of these 40 constitutionalized anti-­‐defection measures in terms of four variables: i) geographic concentration; ii) constitutional design of executive-­‐legislative relations; iii) level of democracy and political freedoms; and iv) the electoral system. Second, it introduces the notion that anti-­‐defection provisions that guarantee both party discipline in the legislature and centralized control in the hands of the party leader over deputies, create the necessary institutional conditions for the parliament-­‐
presidentialization of political parties. Regardless of the structure of executive -­‐
legislative relations, whether parliamentary or otherwise, anti-­‐defection clauses have the potential of simultaneously strengthening both the parlimentarization and the presidentialization of political parties (Poguntke and Webb, 2005; Samuels and Shugart 2010). 4 The paper will start with an overview of the recent literature on the study of anti-­‐defections laws. This will be followed by the presentation of descriptive data about the different types of anti-­‐defection clauses and their distribution across regions and political regimes. The final section of the paper will outline some of the ways in which anti-­‐defections clauses both parliamentarize and presidentialize political parties why, as a result, these states need to be considered as a separate special group of cases in terms of their institutional design. 1. Theoretical perspectives The study of anti-defection laws grows out of the burgeoning literature on party
laws (Avnon 1995; Biezen 2008; Biezen and Kopecky 2007; Katz and Mair 1995;
Karvonen 2007; Muller 1993; Muller and Sieberer 2006). It has been noted that the
number of states, mostly new or fragile democracies, that are adopting such measures is
steadily increasing (Janda 2007; Malhotra 2006; Miskin 2003). However, apart from a
few studies on individual cases such as South Africa (Booysen 2006), India and Israel
(Nikolenyi and Shenhav 2009a, b), and Papua New Guinea (Reilly 2002), as well as a
couple of broader regional (Goeke and Hartmann 2009; Malhotra 2005) and global
(Janda 2009) overviews, scholarship on the politics of anti-defection laws remains sparse
at best. In this section, I review the ways in which the study of anti-defection laws
connects with three important streams in the parties literature: party laws; parties in
national constitutions; and party cohesion and unity.
5 Party laws
The regulation of political parties by state law has had a long history in Western
democracies. However, until recently such regulation was mostly indirect in nature. As
such, party law used to be understood as "the total body of law that affects political
parties" (Muller and Sieberer 2006: 435) including electoral law, political finance
legislation but also court decisions and administrative rulings (Janda 2005). As the
modern state has increased its regulatory presence in the life of political parties (Biezen
and Kopecky 2007; Katz and Mair 1995; Kopecky 2006; Kopecky and Mair 2003), a new
type of party law defined as "legislation specifically designed to regulate the life of party
organizations' (Muller and Sieberer 2006: 435) has emerged. Accordingly, scholars also
started devoted increasing attention to the politics of these direct party laws. However,
this literature is still relatively small and new (Karvonen 2007; Muller and Sieberer 2006;
Biezen 2008). The purpose of party laws tends to vary across different types of political
regimes: authoritarian regimes may use party laws to limit political competition; new
democracies may adopt them to contain the rise of anti-democratic tendencies,
specifically anti-democratic parties (Carothers 2006); while stable democracies resort to
the use of party laws either to safeguard the democratic fundamentals of political parties
(Avnon 1995), reflecting the legacy of historical concern with earlier instances of
democratic breakdown (e.g. Austria, Germany), or to create the framework for the public
financing and subsidy of political parties (Karvonen 2007; Katz and Mair 1995; Clift and
Fischer 2004; Hopkin 2004; Scarrow 2004).
6 Janda (2005) notes that one of the key areas where party law differs significantly
in old and new democracies is the regulation of party switching and defections. In the
former, such regulation is normally left to the political parties themselves. In the latter,
however, since the “stateness of the party” in general is much more pervasive, it is not
surprising to find that the state plays a stronger role in regulating party cohesion and
discipline. In support of this claim, Janda (2009) finds that only 14% of the 41 states that
report laws, constitutional or not, against party defections and switching, were established
democracies, while 24% were new democracies, the rest being semi- or non-democratic
regimes. Miskin (2003:23) also points out that “dictatorships and fragile democracies”
(2003: 23) use anti-defection measures more often than established democracies, while
Booysen (2006) argues that the institutionalization of the party system and the age of
democracy can account well for the presence of anti-defection laws, both constitutional
and not. According to Miskin (2003), advanced democracies that suffer from high rates
of party defection, such as France or Italy, are more likely to use party statues rather than
formal laws as a way to keep legislators in check. However, instances of such practice are
also reported from new democracies, such as Spain (de Dios 1999). In what remains the
single most comprehensive cross-national overview of anti-defection laws, Malhotra
(2005) reports that the use of anti-defection laws tends to be particularly common
amongst the member states of the British Commonwealth.
Parties in the constitution
A particularly significant area of the growing literature on party laws is the study
of the constitutionalization of political parties, an increasingly prevalent practice in newer
7 democracies around the world. The constitutional recognition of political parties entails
three principal forms: i) the definition of democracy in terms of political parties; ii) the
definition of key political institutions in terms of political parties; iii) the constitutional
prescription or prohibition of particular “activities or organizational characteristics” of
political parties (Biezen and Kopecky 2007: 246-47). This phenomenon started in Europe
and Latin America during the Second Wave of global democratization, after the Second
World, (Biezen 2008; Bogdanor 2004) and has continued in Eastern and Southern Europe
in the Third Wave (Biezen 2008; Biezen and Kopecky 2007; Muller and Sieberer 2006).
Biezen and Kopecky (2007) note that while all but one of the 33 Third Wave
democracies of Eastern Europe, Latin America and Africa have given political parties
some form of constitutional recognition (the exception being Latvia), only about half of
the established democracies have done so. Clearly, there are significant differences across
new and old democracies with respect to the patterns of party law in general, and the
constitutionalization of political parties in particular. With regard to anti-defection and
anti-switching laws, Janda (2009:3) finds that most states that constitutionalize such
measures can be found in the developing world. His list of examples includes Belize,
Namibia, Nepal, Nigeria, Seychelles, Sierra Leone, Singapore and Zimbabwe.
Party cohesion and unity
The study of anti-defection laws also connects with the literature on the unity,
cohesion, and discipline of legislative parties (see for example, Bowler, Farrell and Katz
1999; Becher and Sieberer 2008; Carey 2007; Desposato 2006; Grofman, Evald and
Taagepera 2000; Hazan 2003; Heller and Mershon 2008, 2005; Hix 2004; Kam 2009;
8 Mershon and Shvetsova 2008; Montgomery 1999; Nokken and Poole 2004; Ozbudun
1970; Sieberer 2006). Since this scholarship is primarily concerned with the behavior of
individual legislative representatives and their party groups, it looks at political
institutions as independent variables that shape the level of legislative party unity.
Institutional accounts of what causes variation in legislative party unity have stressed the
role of constitutional factors, the electoral and the party system. However, the effect of
anti-defection and anti-switching laws has not yet been studied in this field of inquiry.
With regard to constitutional structures, the conventional argument is that
parliamentary systems of government promote greater party cohesion and unity than
presidential ones (Bowler, Farrell and Katz 1999; Huber 1996; Mayhew 1974; Samuels
and Shugart 2010; Shugart and Carey 1992; Tsebelis 2002; Hix, Noury and Roland 2005)
although there is evidence suggesting that this dichotomization may be overdrawn
(Gaines and Garrett 1993). As for the impact of electoral systems, legislative party unity
is promoted by voting rules that encourage the development of a party-as opposed to a
candidate-oriented vote (Carey and Shugart 1995), such as a closed-list proportional
representation (PR) system versus open list PR (Haspel, Remington and Smith 1998;
Kunicova and Remington 2008). Where deputies depend on their party for their reelection prospects, they will be less likely to break their allegiance. However, low
barriers to parliamentary entry provide an exception to this rule. If the electoral system is
highly proportional and affords even very small parties a reasonable chance to get
parliamentary representation, then deputies might be attracted to defect from their
nominating party in the hope of re-entering under the permissive electoral rule. Electoral
system components that lead to a lowering of entry barriers include large district
9 magnitudes, low nominal and effective thresholds, and easy or no restrictions on
apparentement, i.e. the formation of joint lists as electoral cartels for the purposes of seat
allocation (Lijphart 1994).
A third set of institutional explanations of party unity focus on the dynamics of
the party system, namely its competitiveness and polarization. In an early work
Golobiewski found that ‘party cohesion is a direct function of the degree of competition
between political parties” (1958: 501): he reported weak degrees of party cohesion in
most one-party American states, but strong ones in states with two-party competition.
Similarly to competitiveness, ideological polarization among parties is also reported to
have a direct negative effect on party cohesion (Epstein 1956). The logic of this argument
holds that would-be defectors are discouraged from crossing the floor when the party that
they would, or could, join is ideologically far from their parent party. Conversely, when
parties are located closer to each other in the ideological space, their legislators would
find it easier to cross over the party lines. Castle and Fett (1996) note that cross-pressured
legislators who are situated near the centre of the space, on the ideological margins of
their parties, are indeed much more likely to switch than their co-partisans who are
farther from the centre.
Finally, the fourth institutional source of party unity has to do with parties’
candidate selection practices. If the composition of the party’s team of candidates is
controlled exclusively by the national leadership, deputies have an incentive to be loyal to
their party in order to secure their own re-nomination. Alternatively, if a party has an
open and inclusive candidate selection process, such as the American or Israeli primaries,
or if the local branches and caucuses have direct impact on the nomination of the party’s
10 local candidate(s), then deputies’ will want to be responsive to the needs of their
constituents no less than to the expectations of the central party leadership (Gaines and
Garrett 1993; Hazan 2003; Rahat and Hazan 2001).
Compared to these institutional variables, anti-switching and anti-defection laws
ought to exert a far more immediate and direct impact on party unity. For instance, party
unity may be constitutionally guaranteed if party defections are banned outright, as it was
the case in South Africa until recently. Furthermore, while anti-switching laws are
expected to constrain the parliamentary behavior of parties and deputies, these measures
may also have electoral consequences: there is evidence suggesting that strict penalties
for defection and switching may have encouraged candidates and would-be deputies to
form splinter parties during the electoral process thus fragmenting the party competition
in India (Nikolenyi 2010, 2008, 2005a; Subramanian 2008) and Papua New Guinea
(Miskin 2003: 27). 2. Varieties of anti-­‐defection clauses There are currently 40 national constitutions around the world that have adopted some form of an anti-­‐defection provision (for the complete list see the Appendix). With the sole exception of Israel these constitutional anti-­‐defection clauses punish defectors by requiring them to give up their seat in the national legislature. In the case of Israel, the 12th amendment to the Basic Law on the Knesset does not forbid defections but provides that a disloyal deputy cannot run in the next election as a candidate of any party that was represented in the outgoing Knesset unless the deputy’s exit from the parent party took place under the conditions of an 11 official party split as authorized by law. In other words, the Israeli anti-­‐defection clauses postpones the penalty for unauthorized defection until the next election; unless the defection is a result of an official split, a defector cannot run for and enter the next Knesset (Nikolenyi and Shenhav 2009). In all the remaining 39 cases, the constitution calls for the defector’s loss of current parliamentary mandate.1 Anti-­‐defection provisions also vary with in terms of how they distinguish and deal with defections depending on the reason for their occurrence. In almost half of the cases the constitution penalizes only voluntary resignation, while in approximately the same number of instances the constitution also penalizes defection that is caused by the deputy’s expulsion from the party. In the case of India, the initial version of the 1985 constitutional amendment bill covered cases of expulsion, however, it was eventually dropped form the final version that was passed by both house of parliament (Nikolenyi and Shenhav 2009). Where expulsion is treated as defection, constitutions often impose strict conditions that parties have to abide by. For example, the constitution of Fiji requires that any such expulsion must take place in accordance with the “rules of the party relating to party discipline” and the constitution of Panama states the “reasons for the termination of the mandate and the applicable procedure must have been established in the party by-­‐laws”. The Thai constitution even specifies that expulsion can result in a deputy’s loss of mandate only if a resolution to that effect is 1 There are two further instances where the national constitution indirectly implies that defection may be penalized: the constitution of Bhutan states that deputies who belong to one party “shall not defect to the other party either individually or en 12 passed by a qualified ¾ majority of the party’s Executive Committee and its current legislative representatives. In most cases where the constitution imposes a penalty for defection deputies can still exercise their right to a free vote. The prohibition of any imperative mandate is actually enshrined in the constitutions of several states such as Malawi and Niger even though party switching is penalized. There are only 6 states (Guyana, India, Pakistan, Bangladesh, Zimbabwe and Sierra Leone) where the constitution penalizes both defection and voting against the party line. 3. Regional distribution The largest concentration of the states with constitutionally enshrined anti-­‐
defection laws is found in Africa. Of the 40 cases with such provisions 24 are situated in Africa, almost all of them (16/24) are current and former members or candidates for membership in the Commonwealth of Nations.2 The prevalence of legislation against party hoping among the African Commonwealth states is further underscored by the fact that two other states, Lesotho and Cameroon, have incorporated anti-­‐defection provisions in their national electoral laws (Lesotho and Cameroon).3 In total, therefore, there are 18 out of the 21 (85.7%) Commonwealth 2 This number includes Zimbabwe, although the state was expelled from the Commonwealth in 2003, and the new state of Southern Sudan, which applied for Commonwealth membership in 2011. 3 In Lesotho, the 1992 National Assembly Elections Act imposes comparatively mild punishment on defectors who were elected to the legislature from the proportional representation tier of the country’s mixed system. A defector is disqualified upon his/her resignation from the parent party or crossing the floor but not if he /she is expelled. Also, Independents are allowed to join political parties without punishment (Malhotra 84). 13 states in Africa that have some kind of legislation against party switching and defection. The only African Commonwealth member-­‐states that do not currently have any kind of constitutional or other legislated provision against party hopping are Botswana, Mauritus, and Swaziland (Goeke and Hartmann 2009: 273). However, it is worth noting that National Assembly of Botswana considered adopting anti-­‐
defection measures, however, no actual legislation came out of the motions that were passed in 1975 and 1998 respectively (cite on-­‐line sources). The eight African non-­‐Commonwealth states in Africa that have constitutional anti-­‐defection laws are Angola, Burkina Faso, Cape Verde, Congo-­‐
Brazzaville, the DRC, Gabon, Niger and Senegal. Next to Africa, the second largest concentration of states with constitutional provisions against defections is found in the Asia-­‐Pacific. Of the 40 cases 9 are situated in Asia; seven of them are members of the Commonwealth (India, Fiji, Pakistan, Sri Lanka, Bangladesh, Singapore, and Papua New Guinea) while Nepal, and Thailand are not. It is particularly noteworthy that all five states of South Asia (India, Pakistan, Bangladesh, Nepal and Sri Lanka) have such measures in effect (Mufti and Nikolenyi 2010). Although there are only two Pacific states with constitutionalized anti-­‐defection measures (Fiji and Papua New Guinea), there has been a lot of activity in this region in terms of debating and attempting to pass anti-­‐
defection bills and political integrity measures. New Zealand enacted the Electoral Integrity Amendment Act in 2001 with a sunset clause that led to its eventual expiration in 2005 (Miskin). Similarly, Samoa has enacted a non-­‐constitutional piece of legislation in 2005, which disqualifies deputies who resign from their parent 14 party unless they do so before taking the oath of allegiance after the election and if the parent party does not have a minimum of eight seats required to form a parliamentary caucus (Malhotra 2005: 95-­‐8). Australia, Vanuatu and the Solomon Islands have considered adopting similar measures, however, these attempts have failed. It is worth noting that both Fiji and Papua New Guinea as well as the aforementioned three states that tried to incorporate anti-­‐defection clauses in their constitutions are members of the Commonwealth. There are five states with anti-­‐defections articles in the Americas: Antigua and Barbuda, Belize, Guyana, Trinidad and Tobago, and Panama. Similarly to Africa and Asia, the effect of the Commonwealth connection is also quite clear in the Americas: of these five states Panama is the only one that is outside the Commonwealth. In contrast to the other two regions, however, there is a relatively large number of additional Commonwealth states in the Americas and the Caribbean that do not have anti-­‐defection articles in their constitutions. The development of representative forms of government, and liberal democracy, in Europe has been coterminous with the gradual disappearance of the imperative mandate and other forms of restrictions on deputies’ freedom of action (see Fitzsimmons 1994: 33-­‐69; Holden 1930; Lewin 1988: 51-­‐3; Pasquino 2001: 205-­‐22). This European norm was summarized in the 1990 Copenhagen Document of the Conference on Security and Cooperation in Europe, which stated that To ensure that the will of the people serves as the basis of authority of government, the participating States will … ensure that candidates who obtain the necessary number of votes required by law and duly installed in office and are permitted to remain in office until their term expires or is otherwise brought to an end in a manner that is regulate by law in conformity with democratic parliamentary and constitutional procedures (italics added). 15 Similarly, the European Commission of Democracy Through Law (Venice Commission) also emphasized this same point when it rendered its opinion on the Ukrainian anti-­‐defection legislation: Without underestimating the importance of parliamentary groups for a stable and fruitful work, membership of a parliamentary group or bloc does not have the same status as that of deputy elected by the people. This distinction is decisive for a parliament representing the people where deputies comply with their conditions and oath (Venice Commission 2009: 8). Indeed, as of 2010 there was but a single state in Western Europe, Portugal (Leston-­‐Bandeira 2009), and one in the former Soviet bloc, Ukraine, with anti-­‐
defection provisions in their national constitutions. In the later part of 2010, however, the Ukrainian constitution was replaced in its entirety by its earlier version, which also meant the automatic repeal of the anti-­‐defection article. A recent report prepared by the Venice Commission notes that representative democracy in the contemporary European legal space is normatively opposed to any legal restriction on the mandate of the individual deputies in parliament. In fact, a number of European democracies, such as France, Germany, Lithuania, Romania and Spain, explicitly forbid in their constitutions any limitation to be placed on the freedom of action by parliamentary representatives. Instead of legal measures, political parties have used other means to keep their parliamentarians loyal such as the Pact against floor crossing in Spain (Venice Commission 2009: 6) or the requirement by Slovakia’s HZDS in 1992 that the party’s deputies would be pre-­‐
committed to paying an exceedingly large sum of money to the party in case of defection (Haughton 2005: 31). 16 The first post-­‐communist state to consider the legalization of the imperative mandate was Russia. In March 1994, the Duma voted on a legislative amendment that would have removed from the legislature any deputy, elected on the party list component of the mixed electoral system that was used in Russia at the time, found in violation of party discipline (Haspel 1998; Smith and Remington 2001: 47-­‐9). Although the vote eventually failed, the imperative mandate was re-­‐introduced in 2006 although not enshrined in the constitution (Sakwa 2008: 125)4. In addition to Russia, the only other post-­‐communist states that inserted anti-­‐defection clauses in their constitutions were Ukraine (between 2004 and 2010) and Serbia. The latter was struck down by the country’s Constitutional Court on May 27, 2003 arguing that “termination of membership in a political party cannot be ground for revoking an elected deputy’s mandate” (Venice Commission 2009: 11, note 18). Nonetheless, Serbia’s 2006 constitution did re-­‐introduce a watered down form of the imperative mandate by stating that “a deputy shall be free to irrevocably put his/her term of office at disposal to the political party upon which proposal he or she has been elected a deputy” (Article 102). The only region that has had fewer instances of constitutionalized anti-­‐
defection laws than Europe is the Middle East, where Israel remains the only state to date with such a constitutional measure in place (Nikolenyi and Shenhav 2009). 4 See Article 7-­‐1 of the Russian Federation Law “On the Status of a Member of the Federation Council and the Status of Deputy of the State Duma of the Russian Federation”. 17 Table 1: Summary of the regional distribution of constitutionalized anti-­‐defection measures Region States with constitutionalized anti-­‐
defection laws Africa 24 (16) Americas 5 (4) Asia 9 (7) Europe 1 Middle East 1 Total 40 (27) Note: The numbers in brackets indicate the number of Commonwealth members in each region. 4. The Political Institutions Form of government The overwhelming majority of the states that have an anti-­‐defection clause in their constitutions have a republican form of government, while four are constitutional monarchies (Antigua and Barbuda, Belize, Papua New Guinea and Thailand). In the 28 republics the head of state is a directly elected President, in the remaining 8 cases the head of state is chosen indirectly. About half of the states with a directly elected president have a presidential system of government (15), 18 however, nearly two-­‐thirds of all the states (25 out of 40) with constitutionalized anti-­‐defection laws have a parliamentary or a semi-­‐presidential system of government. Political freedoms To assess the relationship between democracy the presence of constitutional anti-­‐defection provisions, we rely on the political freedoms scores provided by Freedom House. As of 2010, anti-­‐defection clauses are found most frequently (21) among Partly Free states, followed by Free states (12) and Not Free ones (6). These figures, however, vary significantly across the major geographical regions, see Table 2. In particular, it is worth noting that Africa and the Asia-­‐Pacific are the only regions where states of Partly Free status account for the most instances of anti-­‐
defection clauses. In the other three regions every state that has an anti-­‐defection article in the national constitution also has a Free status while Africa is the only region with instances of Not Free states that have constitutionalized anti-­‐defection measure (Angola, Rwanda, Zimbabwe). Table 2. Political freedom in states with anti-­‐defection clauses Regions Free Party Free Not Free Total Africa 4 13 6 23 Americas 5 -­‐ -­‐ 5 Asia-­‐Pacific 1 8 -­‐ 9 Europe 1 -­‐ -­‐ 1 Middle-­‐East 1 -­‐ -­‐ 1 Total 12 21 6 39 Note: Southern Sudan is not included in the calculations because the status of her political freedoms have not yet been assessed by Freedom House. 19 Since the onset of the Third Wave of global democratization in 1973, the average number of years for which the 40 states were Free is a mere 9.3. In fact, there are only four states with more than 30 years political and civil freedoms since 1973: India, Israel, Portugal and Trinidad and Tobago. Table 3 demonstrates the regional variation on this score. It is striking that the 23 African and the 9 Asian states, which together account for 80% of all our cases, have very short single-­‐digit periods with of political freedoms. The Table also shows the regional variation of the average freedom scores since 1973. The overall average score for all 36 states is 3.87 suggesting that the average state with a constitutional anti-­‐defection clause has a “Partly Free” status. 5 While Israel, the three European states and the 10 states in the Americas have an overall Free status, the African and Asia-­‐Pacific states are only Party Free. Table 3: Length and level of political freedoms in states with anti-­‐defection clauses Region Africa (23) Americas (5) Asia-­‐Pacific (9) Europe (1) Middle East (1) Total Years as since 1973 4.16 22 9.88 34 38 9.3 Free Average Freedom score since 1973 4.72 2.51 3.70 1.66 1.99 4.05 5 According to the ranking methodology of Freedom House, a state is Free is its combined political and civil rights scores are between 1 and 2.5; Partly Free if the score is between 3and 5; and Not Free if the score is between 5.5 and 7. 20 Electoral System The majority of the states (22) with anti-­‐defection articles in their constitutions also use an electoral system of the majority/plurality type to choose representatives in the national legislature. All but five of these cases employ the first-­‐past-­‐the-­‐post system; two states use the Alternative Vote (Fiji and Papua New Guinea); another two employ the majority run-­‐off (Gabon and the DRC); and one state uses the party bloc vote systems (Singapore). Table 4 shows that all but three of these electoral systems are found in the states of Africa and the Asia-­‐Pacific. List-­‐
based proportional representation systems are used in almost 1/3 of the states, most of which are also in Africa. Finally, mixed electoral rules account for a small share of the cases. Table 4: Electoral systems in states with anti-­‐defection clauses Africa Americas Asia Europe Majority / 13 3 6 -­‐-­‐ plurality systems List PR 8 1 1 1 Mixed 2 1 2 -­‐-­‐ Total 23 5 9 1 Note: *The numbers do not include Southern Sudan. Middle-­‐
East -­‐-­‐ Total 1 -­‐-­‐ 1 12 5 39* 22 In sum, four main points emerge from this overview of constitutionalized anti-­‐defection provisions. First, most of these state are either former British colonies (in Africa, the Americas or the Asia-­‐Pacific) or current and former members of the Commonwealth. Second, the overwhelming majority of these states are semi-­‐ 21 or full democracies. Third, most of them have a system of government where the legislature commands executive accountability and responsibility. Finally, almost all of these states have electoral systems, either of the majority/plurality or the mixed type, where either all or some of the parliamentary deputies received a personal vote as opposed to a party-­‐oriented list vote. 5. The Parliament-­‐Presidentialization of Parties in Democratic Regimes In a recent work Samuels and Shugart (2010) have developed the argument that the constitutional design of executive-­‐legislative relations fundamentally defines the internal organization and behavior of political parties. They claim that parties mimic constitutional structures as a result of which they become either presidentialized, if the origin and survival of the head of state are separated from those of the legislature, or become parliamentarized, if these are fused. They note that in a parliamentary system the party and the chief executive stand in a principal-­‐
agent relationship. However, in presidential systems this relationship does not hold because the chief executive is more or less independent of and free from party constraints (Samuels and Shugart 2010: 14-­‐8). Although it may be possible for parties in parliamentary systems to become presidentialized as well as for parties in presidential systems to become parliamentarized, Samuels and Shugart (2010) consider these developments as “usually ephemeral, again because of the inescapable logic of these regimes (2010-­‐:18). The incorporation of anti-­‐defection provisions in the national constitution changes this logic considerably. To be sure, the trend toward the presidentialization 22 of political parties has already been noted in the context of established parliamentary democracies (Poguntke and Webb 2005). One of the important characteristics of this trend is the shift in internal party dynamics to benefit the party leadership. However, such presidentialization is normally achieved by non-­‐
constitutional means, for example changes in intra-­‐party rules that delegate more formal power to the party leader; the party’s ability to forge programmes and attract funds independent of the party organization; the establishment of direct elections for party leader and the personalization of the party leader’s mandate (Poguntke and Webb 2005: 20). In the cases that we have surveyed, the potential for the presidentilization of parliamentary parties is more formal, more credible and more institutionalized because it is backed by the force of the constitution. Anti-­‐defection clauses presidentialize parliamentary parties because they bring about a strong shift in the balance of power in favor of the party leader. As mentioned, anti-­‐defection provisions vary in the degree of penalty that they impose on the disloyal deputies. The stronger the penalties, the stronger the incentive for members of the legislature to abide by the party line and respect party discipline. As a result, stronger penalties will also weaken the ability of political parties to act as genuine principals of the agent they have chosen, i.e. the party leader. This is not to say that the selection of the party leader and the delegation of power by the party would not follow the principal-­‐agent logic that Samuels and Shugart apply to presidential parties. They do. However, because anti-­‐defection clauses stifle internal dissent they in fact reduce the ability of the principal i.e. the party, to monitor the agent’s, the leader, performance and compliance with the mandate it received. In 23 turn, this leads to shirking and growing independence of the agent from the principal. At the same time, anti-­‐defection provisions strengthen the parliamentary feature of political parties by ensuring that they are and remain parliamentary fit (Sartori 1994). It has been well known that political parties in presidential systems suffer from chronic indiscipline. However, several studies have pointed out that political parties have a considerable range of means at their disposal to enforce discipline amongst their deputies who would otherwise be compelled to behave individualistically according to the logic of the implications of the constitutional separation of powers (Cheibub 2007; Cox and McCubbins 1993; Figueriedo and Limongi 2000). In fact, Cheibub (2007: 130) goes so far as to claim that “presidents are not necessarily as distinct from prime ministers as is normally assumed. We have shown that the outcomes usually associated with parliamentarism (e.g. executive success and dominance of legislative output obtained through disciplined parties) can be found even in “hopeless” presidential regimes as Brazil’s.” Anti-­‐
defection clauses in national constitutions make this point louder and clearer. Although there are other ways and means by which parties may become parliamentarized in presidential systems, anti-­‐defection clauses certainly appear to be a necessary, but not necessarily sufficient, condition for this to happen. Such clauses guarantee party discipline, which is the key to the parliamentarization of presidential parties. 24 6. Conclusion The central goal of this paper is to contribute to the slowly growing literature on anti-­‐defection laws. While most of the states that have adopted and incorporated such pieces of legislation in their constitutions are non-­‐democratic, there is a number of new democracies that have also done so. Apart from an overview of the distribution and variation of anti-­‐defection provisions, the paper also mkes three points that are worth reiterating. First, anti-­‐defection clauses make political parties part of the overall constitutional design of the state. Although there are other ways in which parties can and have been constitutionalized, anti-­‐defection clauses do so in a manner that has impact on the organization and behavior of the executive and legislative branches of government. Second, by virtue of “forcing” legislators to be disciplined, anti-­‐defection clauses seek to make for more efficient legislatures and make parties more parliamentary fit. Third, by strengthening the power of the party leadership vis-­‐à-­‐vis individual deputies, anti-­‐defection clauses also have a presidentializing effect on political parties. 25 References (incomplete) Aslund, Anders and Michael MacFaul. 2006. Revolution in Orange : the Origins of
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32 Appendix: List of states with anti-­‐defection clauses in their national constitutions 1. Angola 2. Antigua and Barbuda 3. Bangladesh 4. Belize 5. Bhutan 6. Burkina Faso 7. Cape Verde 8. Congo-­‐Brazzaville 9. Democratic Republic of Congo 10. Fiji 11. Gabon 12. Gambia 13. Ghana 14. Guyana 15. India 16. Israel 17. Kenya 18. Malawi 19. Mozambique 20. Namibia 21. Nepal 22. Niger 23. Nigeria 24. Pakistan 25. Panama 26. Papua New Guinea 27. Portugal 28. Rwanda 29. Senegal 30. Seychelles 31. Sierra Leone 32. Singapore 33. South Africa 34. Sri Lanka 35. Tanzania 36. Thailand 37. Trinidad and Tobago 38. Uganda 39. Zambia 40. Zimbabwe 33