Irfan Yusuf has an interesting article on Liberal factionalism . Which raises the question, does party organisation at a state and national level, induce factionalism within the party? Might be one for Scrymarch's government design patterns . It also appears that Liberal and Labor now have identical political organizations that are dependant upon either the power of government, or a Presidential leader to keep the factions in line.

From the article;

The New Right's major source of strength is the NSW Young Liberal Movement. This was also the main power base of the Group during its days in power. Many of those same young Groupers are current factional warriors in the New Right, holding positions on the NSW Young Liberal executive and the State Executive of the Party.

Irf argues that the Young Liberals have been a major source of on the ground campaigning and warm bodies at election time, and have used that ability to mobilise supporters to punish candidates who were not from their faction.

The extreme factionalism within the Young Liberals has infected the Party and has made it near-impossible for the Party to maintain a hold on many of its own seats, let alone win seats from the ALP and independents. With the retirement of Bob Carr and with the mistakes of his government costing more than a block of flats in Lane Cove, the Liberals should have been able to capitalise on ALP mistakes.

The ALP has been able to organise its factions and manage its internal bickering. Unless the NSW Liberals can do the same, they can look forward to many more terms in opposition and losing many more of its safe seats to independents.

In a previous article, The Cost Of Opposition , I largely blamed the media for ensuring there was the constant perception of inner turmoil in parties, and that only a party in government could fend it off through their control of the executive, and hence control of government, taxpayer money and to an extent by dictating the public agenda and policy.

Irf has a different view. He is arguing that factions in a party out of power are the source of inferior electoral results. But both of us seem to support Judith Brett's thesis from "Australian Liberals and the Moral Middle Class" that a strong leader quells the factions, but only if they can prove they can win elections. The leaders legitimacy amongst factions only comes with the strength and power of control of the Executive Cabinet. This appears to be true for Labor, despite their caucus structure, as much as the Liberals who have traditionally relied on this style of organization.

The problem for Australian democracy is, that while this self-organisation is great for keeping government once elected, it is an inferior form of organization when in opposition. This leads to "drover's dog" elections and "small target" election campaigns where the opposition cannot win government, but only hope that the incumbent will lose it.

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Bruce Schneier 's ideas have been commented about on SSR in the past in relation to security. However in this article titled; Unchecked presidential power he has a look at separation of powers and the aggrandization of the executive branch in times of war.

Schneier argues the greater danger in the recent revelation, even confession, that the Bush Administration instructed the NSA to eavesdrop on American citizens without bothering to go through a FISA issued warrant is in the breaking of separation of powers.

This isn't about the spying, although that's a major issue in itself. This is about the Fourth Amendment protections against illegal search. This is about circumventing a teeny tiny check by the judicial branch, placed there by the legislative branch, placed there 27 years ago -- on the last occasion that the executive branch abused its power so broadly.

Schneier addresses Yoo's justification for the circumventing of judicial approval by the claim that the US is at war with terrorism, and in a time of duress on national security the Executive should be able to do everything they can to ensure the security of the state. Firstly, no war has been declared. Something which the US Constitution is explicit about. The American Founding Fathers required that declaring war be the sole authority of the Legislature, as war itself often only bolsters power to the Executive.

The result is that the president's wartime powers, with its armies, battles, victories, and congressional declarations, now extend to the rhetorical "War on Terror": a war with no fronts, no boundaries, no opposing army, and -- most ominously -- no knowable "victory." Investigations, arrests and trials are not tools of war. But according to the Yoo memo, the president can define war however he chooses, and remain "at war" for as long as he chooses.

This is indefinite dictatorial power. And I don't use that term lightly; the very definition of a dictatorship is a system that puts a ruler above the law. In the weeks after 9/11, while America and the world were grieving, Bush built a legal rationale for a dictatorship. Then he immediately started using it to avoid the law.

Schneier finishes with a warning that separation of powers is a fundamental tenet of liberal democracy;

Laws are what give us security against the actions of the majority and the powerful. If we discard our constitutional protections against tyranny in an attempt to protect us from terrorism, we're all less safe as a result.

The United States has greater separation of powers between the Executive, Legislature and Judicial than Australia's Westminster system does. In the US the Executive is the President and his Executive Cabinet of appointed secretaries, such as the secretary of defence, secretary of state etc. The legislature is the Senate and House of Representatives, also known collectively as Congress. The Judicial is the federal court system which the President nominates candidates for and the Senate approves or rejects.

In summary the Legislature makes laws, the Executive executes those laws, and the Judicial interprets those laws. One of the issues is that Bush made up his own laws when he made an executive order that contravened a law from the legislature, and without judicial oversight. With that executive order he became Executive, Legislature and Judicial all in one person. This is commonly what the old Kings were.

In the Westminster system the Executive is split between the Governor-General [GG] and the Prime Minister [PM]. The Governor-General is the formal Executive but the Constitution limits the GG's power by demanding that the GG only take advice from the Prime Minister.

The Prime Minister is the informal Executive, and the PM's senior ministers make up the Executive Cabinet. For instance the Treasurer, the Foreign Minister, the Health Minister etc. The Legislature is the Senate and House of Representatives which are collectively known as Parliament. The Judicial is the commonwealth court system. Appointments to the Judicial arm are made by the Prime Minister.

One of the problems in the Westminster system is that the power of the Executive is embedded in the Legislature. The Prime Minister not only makes laws, but also executes them. As a consequence the separation of powers is weak in the Westminster system, especially when the one check on the Executive, the Senate, is controlled by the same party as the Prime Minister's.

Separation of powers is supposed to put the tensions between each branch of government in balance, ensuring that one arm cannot crowd out the others and claim all authority to themselves. It is a barrier to tyranny. One that is inherently weak in Australia, and it appears being eroded in the US under the auspices of the national security state.

More information;

• Separation of Powers or Executive Authority?
• Joh Bjelke-Petersen and Unicameral Parliament
• Separation of Powers and Parliamentary Systems

The internet supposedly has a permanent memory, but opinion polls on an Australian Republic are exceptionally difficult to find. The Pandora Archive has some from an archive of the Australian Republican Movement website . But they aren't specific on whether people want to vote for the Head of State or not, and how they want the Head of State to be elected. This is one problem with making the Republic popular, the other is what to do with the powers of the Executive.

So what do people want? Polling is the best means to determine this, and there isn't that much information at our fingertips to see what resonates with public opinion. Do people want to elect the Head of State (I am guessing yes)? What do they want the Head of State called? How do they want the Head of State to perform their duties?

This is the area where public opinion needs to be tapped for the wisest, and most popular outcome.

The other problem, which is probably better done by specialists, is what to do with the Executive. By specialists, I mean *not politicians*, their role in this would be too selfish.

We have several problems in our system. The Constitution is supposed to be a reflection of the will of the people and set the limits on legislative authority. Courtesy of Griffiths, Barton et al, we have crap constitution which has not been able to restrain federal excess, or legislative tyranny.

A Bill of Rights is a necessity in Australia to place legislative limits on the House and Senate.

The other is that we have poor separation of powers. Government is divided into three arms, Executive, Legislative and Judicial. The legislative makes laws, the executive executes or enforces those laws and the judicial interprets the laws.

In Australian Parliament, the executive and legislative are both contained in the House. The Prime Minister can make a tyrannous law, fund the enforcement of that tyrannous law and then oversee its enforcement. Between a weak constitution and poor separation of powers, we have seen parliament abuse their authority blatantly and with devastating social effect in the past.

The question of what to do with the executive, especially if the people want to be actively involved in the process of selection and election of the Head of State are going to have to be answered.

I like the idea of the executive cabinet coming from elected parliamentarians. This allows the people to keep the truly repugnant out of, not only parliament, but also cabinet. Yet in these days of ever-increasing social democracy an officious administrator is needed over a politician to keep the reigns on all the spending and ensure that the intended outcomes are met. Neither of these issues addresses the problem of how to structure the executive so that there is strong separation of powers between the arms of government.

Executive Cabinet

A simple innovation in the current parliamentary systems practised in Australia at the federal and state levels would be limiting the Executive Cabinet to drawing its members from either the House of Representatives or Assembly. This would at least give the upper houses, such as the Senate or Legislative Councils, some focus in acting as a check and balance on the combined power of the Executive and Legislative which is present in the lower house.

Currently the Executive Cabinet can be composed of members from both houses. This is not true of Queensland, the Northern Territory or the ACT, who have unicameral systems and lack an upper house. Between factions who can enforce party discipline and the mixing of the houses in the Executive, there is little stopping Executive over-reach.

In the federal system the Executive Council is composed of the Governor-General and the Executive Cabinet. The cabinet is headed by the Prime Minister and is composed of the government's senior ministers. The federal constitution makes no mention of the Prime Minister at all, which is the position of most power in the federal government. The Governor-General is also a ceremonial position and constitutionally must take the advice of the government of the day in how the Governor-General will act.

This is a throw-back to the Australian government's Westminster origins. In the United Kingdom the parliamentarians wanted to keep the King as the ceremonial head of the nation for political, religious and nationalist purposes; but strip the King of any political power in parliament. As a consequence, after King George lost the America's, and parliament became stronger and stronger in defying the King's interventions in politics, the convention became that the Prime Minister would advise the King.

Australia adopted a similar system in 1901 despite the monarch having no power left in the British system. Basically Australia adopted a system that is predicated on a hack to route power away from the monarch and neuter the King's ability to interfere in the process of government.

Executive Function

The goal of separating the Executive from the Legislative is so that one branch of government makes laws (the legislative) and the other implements or executes those laws (the executive). This is to stop one person, or one body of government, making a repugnant law, funding that repugnant law and then enforcing that repugnant law. It is a barrier to tyranny.

With the ever increasing legislation and growth in government function and responsibility the executive cabinet, and its portfolios have grown. In the United States the secretaries to the President are appointed, through Senate agreeance. These have also grown in number since the days when the American republic was first founded. Despite the stronger separation of powers in the US system, there has been no inhibition on the growth of government, nor any increase in ministerial or secretarial accountability. Factions have successfully managed to dampen those effects.

So should Australia adopt a separate executive?

Purity of principle would require it and strong separation of powers remains the best way to deal with the inevitable negative passions of those that seek power. Yet the parliamentary system is relatively stable, and seemingly no more, or less prone to tyranny than a Presidential one. A separate Executive poses the problems of elected vs appointed officials. In the United States some counties and states try to address this by having elections for the Attorney-General and Sheriffs.

Does separating the executive and legislative functions give more positive outcomes? This must be answered yes. The checks and balances which are enabled by separating the two branches of government increase oversight and limit the room for a branch to fall into extremism. There is limited possibility for this in a parliamentary system where the Prime Minister dominates - and coupled with parliamentary discipline, a majority in both houses can mean that a government will guillotine legislation and bills through.

So Parliamentary or Presidential systems both suffer at the hands of factionalism.

Governor-General

The Governor-General is a political eunuch in the Australian system. Because of the inherent weakness in our constitution and its separation of powers, electing a Governor-General will probably force a showdown between the Prime Minister and Governor-General over executive powers. Both will claim mandates from the people to see their policies implemented and enforced.

One way is to get around this is to make the Governor-General represent the constitution and a bill of rights. The Governor-General would be constitutionally required to veto any bill that contravenes the constitution or the bill of rights. This would give the Governor-General a small area of executive and constitutional responsibility that is separate to the executive power of the Prime Minister so they don't try to steal each others executive authority.

This would also be a strong check on tyranny, as candidates for the Governor-General position would compete over who can protect the constitution and the rights of those under the government the best. But veto is a check on legislative power rather then executive power. This would not stop a Prime Minister passing a benign law and then enforcing it in a repugnant manner. The sedition laws are probably a good example of where this could be open to abuse.

The check on executive implementation of laws under a strong separation of powers and checks and balances is by the legislative. Committees and other legislative functions are intended to bring the executives conduct under focus. But again, partisanship and factionalism can destroy that check and balance.

Do we need a Governor-Magistrate? One who can actively institute commissions on the executive branch of government with legislative oversight? Basically the Governor-Magistrate heading a form of ICAC which does not answer to a minister, but is a sub-arm of the executive in the same way that the judicial is.

Best Protection

The best protection from factionalism and government over-reach remains the people. Sheer numbers of people can statistically dampen out the concentrations of factions in government. This should be leveraged to interact with government directly. We have such technologies in use already, for instance a jury is the people deciding on points of law. The jurors are chosen by sortition. This same technology can be used to have large numbers of the population vote or participate in government directly - from bill to bill, audit to audit, or even sit directly in parliament.

These are excerpts from the UK Chambers' Hansard of Gordon Brown's speech on Constitutional Reform.

Brown outlines twelve areas where power will devolve from the executive to the legislative:

The route map seeks to address two fundamental issues: to hold power more accountable and to uphold and enhance the rights and responsibilities of the citizen.

While constitutional change will not be the work of just one Bill or one year or one Parliament, I can today make an immediate start by proposing changes that will transfer power from the Prime Minister and the Executive.

For centuries, they have exercised authority in the name of the monarchy without the people and their elected representatives being consulted, so I now propose that in 12 important areas of our national life the Prime Minister and the Executive should surrender or limit their powers, the exclusive exercise of which by the Government of the day should have no place in a modern democracy.

These are: the power of the Executive to declare war; the power to request the dissolution of Parliament; the power over recall of Parliament; the power of the Executive to ratify international treaties without decision by Parliament; the power to make key public appointments without effective scrutiny; the power to restrict parliamentary oversight of our intelligence services; power to choose bishops; power in the appointment of judges; power to direct prosecutors in individual criminal cases; power over the civil service itself; and the Executive powers to determine the rules governing entitlement to passports and the granting of pardons.

I now propose to surrender or limit these powers to make for a more open 21st-century British democracy which better serves the British people.

He is arguing for checks and balances between the Executive and Legislative. Which is very wise and makes for a more deliberative process. It should be noted that Australia lacks several of these too.

I did not realise that parliament could appoint bishops, surely in a republican system, secularism is the goal and parliament, or politics, should play no role in the appointment of clergy. I am aware that the UK is not a republic, and that the Queen is the head of the church as well as state, but surely it could just be gotten rid of and the church told to deal with it themselves.

It is also interesting to note, particularly with the issues in the US, that Brown wants to devolve power, or oversight for pardons into the legislative. In the Washington system the President has absolute authority in this area. It is supposed to be a check and balance against arbitrary judicial decisions, not a political get out of jail free card.

On the issue of dissolution of parliament, under these reforms there must be a majority for the dissolution rather than just the executive council deciding it. This would probably be better handled by fixed terms. The executive calling the election date gives too much incumbent advantage anyway.

Brown seeks to make the Attorney-general have less political intrusion into cases:

The role of Attorney-General, which combines legal and ministerial functions, needs to change. While we consult on reform, the Attorney-General has herself decided, except if the law or national security requires it, not to make key prosecution decisions in individual criminal cases.

Seems wise. There is also a requirement for the public service to be governed by legislation rather than executive procedures. There is also a decoupling of politics and civil service by not allowing special advisors to give orders to the civil servants.

This has been an issue in Australia and has allowed the "I don't know, no-one told me" type get out of jail free cards to Government Ministers. IIRC Bob Brown tried to pass a private member bill in the Senate seeking to stop this practice in Australia.

Gordon Brown also argues for 'citizen juries':

The first is powers of initiative, extending the right of the British people to intervene with their elected local representatives to ensure action, through a new community right to call for action and new duties on public bodies to involve local people.

The second is new rights for the British people to be consulted through mechanisms such as 'citizens juries' on major decisions affecting their lives. The third is powers of redress, and new rights for the British people to scrutinise and improve the local delivery of services. The fourth is powers to ballot on spending decisions in areas such as neighbourhood budgets and youth budgets, with decisions on finance made by local people themselves.

He is also seeking to reduce the age of enfranchisement to lower than seventeen. Ultimately Brown wants it all wrapped in a written constitution (like Australia, but not like Tasmania or Western Australia):

In Britain we have a largely unwritten constitution. To change that would represent a fundamental and historic shift in our constitutional arrangements. So it is right to involve the public in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties, or for moving towards a written constitution.

Because such fundamental change should happen only when there is a settled consensus on whether to proceed, I have asked my right hon. Friend the Secretary of State for Justice to lead a dialogue within Parliament and with people across the United Kingdom by holding a series of hearings, starting in the autumn, in all regions and nations of the country, and we will consult with all the other parties on this process.

This is an important speech, which, ironically, because Australia shares a Westminsterish system and is deficient in many of the same areas, will probably have political ramifications in Australia too.

Very interesting.

x-posted eurotrib

The purpose of the executive having the power to pardon is to stop judicial tyranny. It is a check on the judicature from another branch of government to stop arbitrary judicial decisions. President Bush commuting Libby's sentence was not for this purpose. it was political. There is an argument that there should be some check and balance on the executive's power in this area.

From the Cunning Realist:

We also know now that Congress must find a way to restrict permanently the executive's ability to grant clemency. It won't be easy. But the Libby precedent will make the pardon process little more than a get-out-of-jail-free card for rogues willing to commit crimes involving war and national security with the tacit understanding that, if discovered, they will do less time behind bars than Paris Hilton.

The key, of course, is timing and the executive's lack of accountability. At the very least, the White House's unfettered ability to intervene after a presidential election and before the next administration takes office must be eliminated.

In Australia pardons are within the domain of the executive, but because it is not explicitly spelled out and there is little precedent or convention to guide it, there is a wariness of doing so. As the recent episode of journalists being prosecuted in Victoria showed.

It comes after Victorian Premier Steve Bracks said he would consider such a request, although he warned that pardons were rare, with the last example believed to have been in the 19th century.

"That will be treated on its merits and we usually receive legal advice on those matters," he said.

"Pardons are an extraordinary, rare thing and have occurred very infrequently over the history of this state, but they will be treated on the merits of the case presented to the (Victorian) Attorney-General (Rob Hulls)."

Because the Governor is the one who actually does the pardon, but acts upon the advice of the Executive Council, it would be the political executive asking for it.

I think I prefer the Australian system here, because the judicial system is trusted to pass just sentences within the bounds of legislative requirements.

However, once there is a pardon for political reasons, the executive cabinet will have asserted sovereignty over the pardon process and there will likely be a flood of them for political reasons - especially in an executive that is acting illegally and getting hauled infront of the courts.

The US system is predicated on checks and balances where the Westminster is not - instead 'responsible government' is supposed to suffice. Consequently there is going to have to be some kind of further check on the pardoning power in the US system to stop political pardons and commutations. The obvious choice is to have the Senate approve the pardon.

Another method would be to form a group of sortitionists, a citizen body, which must vote a super majority on each pardon/commutation. Then again, that is what the jury was for a court case (and a jury was who found Libby guilty).

It might be wise for Australia and the States to also institute a similar check and balance; just in case.

Lewis Holden is exploring the issue of what a President would be in a republican New Zealand. He covers the advantages and disadvantages of a ceremonial appointed executive, separate executive and executive elected by parliament.

Any republican system has to be able to explain its choice of executive, especially one that will move from a constitutional monarchy based on a parliamentary system - as Australia and New Zealand are.

Lewis writes that he prefers the parliamentary model :

However, in discussions about deeper constitutional change, such as the separation of the executive from parliament - to prevent the melding of the legislature and the executive and thus protect against potential constitutional abuses by the executive - parliamentary republics still, in my view, stand stronger than presidential systems.

I disagree. I prefer the separate executive of the Washington system. The US system is messy and has massive arguments about separation of powers and checks and balances - arguments that parliaments don't have as those powers which the President and Congress are fighting over are predominantly the domain of the executive in a parliament.

A parliamentary system's calm belies the lack of independent legislative power in it. The Washington system is becoming more dependent upon party machines to provide the checks and balances like the Australian system. This is a recent phenomenon in the US; because of Labor's pledge and block voting in Australia it has always been a part of the Australian political landscape.

The messiness of the US system and its airing of its power struggles between executive and congress in public are a good sign of the deliberative component in liberal democracy.

I am opposed to impeaching the President of the United States until concrete solid evidence turns up. The only place I can currently see that happening is around the FISA wiretappings. Impeachment is not a process to recall an inept, incompetent or unpopular President. It is a specific legal process that requires proof of "treason, bribery, or other high crimes and misdemeanors".

I was opposed to the recall election in California for the same reasons. Democracy has a morality and that requires that an elected representative or executive has the right to complete their term unless they have committed criminal acts.

It is not enough that they are unpopular to a majority, or a minority. In the case of the recall election in California it was a minority that objected and collected enough signature to recall Grey Davis.

Republicanism requires that the minority accept the majority's will, however they do so secure in their rights as individuals. This does not mean a minority get to gazump an election or an elected position through the collection of 50,000 signatures.

The call for using impeachment as an electoral recall device to take back a 2004 decision is a similar situation. It is more complex with the Bush Administration as the current President has approval ratings that are 1% above Richard Nixon before he resigned.

But this does not detract from the morality inherent in democracy that demands the President complete his term unless discovered to have performed criminal actions. The time to remove the Bush Administration was in 2004 when there was a general election.

While I consider the Bush Administration repugnant, incompetent, inept, dishonest and incapable of good governance; I do not want them impeached unless there is good evidence they committed crimes and misdemeanors. I don't doubt that there has been criminal activity going on, but it can't be a gut feel, it must be proven.

Some of the claims to start impeachment proceedings include that the Administration lied to take American to war. This does not fly as two Senators from the Intelligence Committee voted against the war powers. All it would have taken is for them, despite being gagged on what they had seen, to say, "This is bogus. The intelligence being presented is a lie."

There were many warnings that the Administration was leading with falsehoods. The Knight-Ridder newspapers were exposing it. There were leaks and op-eds on the dishonest nature of the intelligence. There was also the representatives in Congress themselves, who rather than face down a popular President with ratings in the 90% mark, chose to vote for the war. The failure was Congress' as much as the Administration's.

France is one of the few countries that maintains independent intelligence assets that can rival the United States. Most other countries such as Australia, Britain and Germany are dependent on US intelligence.

France was opposed to the war and publicly said that the intelligence the US was presenting was wrong. It was assumed in the US that France was conducting Gaullist foreign policy and trying to counter US hegemony. They were then slurred with the 'freedom fries' and the pouring of French wine down gutters.

France was right. The information, or truth, was out there.

The outing of a CIA agent is another issue. Because of Scooter Libby taking the brunt of that, unless double jepaordy is changed, we will not know if Plame was outed by Cheney. There is also the grey area that the Vice President can declassify intelligence. I doubt it.

There is probably statues or executive orders that force some kind of process to it, but given the US Republican Party Congress of the time and the manner in which President Bush uses executive orders, I am sure that would be quickly changed.

Another issue is torture. This is a good example where the Bush Administration have used the grey areas of convention and precedent to keep the whole process outside of judicial scrutiny. They also used a compliant Congress to pass a bill that allowed the executive to use torturous methods in the McCain bill.

The argument is that this contradicts the UN treaty on it and as such is breaking international law. In the US legal system treaties and statues have equal authority and more recent legislation can over-ride a treaty. Consequently the McCain bill became the authority on torture.

Again this is failure of Congress to act as a check and balance on the Executive. This is a classic symptom of state of exception governance where the legislative gives the executive new opportunities to act arbitrarily and outside of the juridical order.

A common claim is the dereliction of duty when the 911 attacks happened. The image of Bush stupefied in a school classroom with a child's book in his hand for five minutes before he decided to do anything is instructive. But incompetence is not a valid reason for impeachment. It must be criminal.

I am fully in favour of an energetic legislative shaking the executive tree constantly. I also think it is important that the current Congress continue to subpeona and introduce contempt charges when the executive does not comply. It is important that a weak and unpopular executive face a strong legislative with public will behind it to create new precedents should a future George try to push the boundaries of executive authority.

I am fully comfortable with the legislative investigating FISA and any other action by the executive where there is the slightest sniff of criminal behaviour. Once there is proof, then impeachment should begin.

Until then I will be happy with an energetic legislative doing what they should have done four years ago and act as a check and balance on the executive.