Electing the President - Alternative Models

by John Pyke, Queensland candidate for the Constitutional Convention

In Powers and Functions of the President I propose Constitutional amendments to ensure that there is no confusion about the President's role. I suggest, there, that this should take some of the heat out of the debate about how the President should be selected - but we do still have to choose one method over another. What are the alternatives - and why might one be better than others?

The Selection Criteria

First, what sort of a person do we want for President? It seems to me that the selection criteria for a non-executive President can be stated pretty easily. We want a person who is capable of acting in an absolutely unbiased way as between the political parties. That is, though s/he may have a private political preference for greater collectivist State action or for leaving everything to the free market, his/her decisions as President should be totally unaffected by that preference. When a crisis arises - an election producing a "hung" Parliament, for example - the President should apply the same rules whether Labor has been in power and the conservatives are claiming a chance to form government, or the positions of the parties are reversed. That is, s/he should have the same impartiality as we hope for from a referee in sport - hence my description of the job in Powers and Functions as National Referee.

At the same time s/he should be absolutely biased in favour of fairness, democracy and constitutionalism as against absolute rule, abuse of power and political cheating, and be prepared to intervene when necessary to enforce this "bias". S/he should also - again like a referee - have considerable knowledge of the workings of the political system and the "rules of the game".

So, How Should S/he Be Chosen?

The Alternatives

Three main alternative have been suggested:

Analysis of Some of the Arguments About the Selection of the President

The notion of a Constitutional Council can probably be ignored for the pragmatic reason that it is not getting a lot of support. Also, it seems to involve a lot of trouble in setting up an extra body which would really have very little to do. If we require a smaller body than the whole of the people to act as an electoral college, there is already such a body - Parliament. If election by Parliament can be set up so that an impartial person should be chosen (and it can be - see below) then that is as good as a Constitutional Council - and another body does not have to be added to our complex constitutional structure.

So I will concentrate below on the debate between those who want election by the people at large (popular election) and election by the Parliament (Parliamentary election).

One of the Arguments Against Popular Election can be Sidestepped by Proper Amendments to Section 61

As I have remarked in Powers and Functions of the President, the reason why Mr Keating, Mr Howard, and other authoritarians - and, until recently, the ARM - are so horrified by the thought that the people might elect the President, seems to be that they are taking it for granted that all amendments will be "minimal" - and a minimally-amended section 61 will appear to vest executive power in the President. In this case there does seem to be a possibility that a President would say "Look at the Constitution - it says I exercise executive power and the Ministers merely advise me. Further, I have a mandate arising out of my election by the people. I am going to start to run this place." Mr Howard has warned that popular election "could create two power centres" - it seems to be for this reason that he is "violently and passionately" opposed to it (though it could just be that it's too democratic for him).

Even this possibility is, I think, exaggerated - just as all our Governors-General have been perfectly aware that they are not the real Boss, so we could expect the Presidents to be aware that we have constitutional conventions as well as the written Constitution, even if section 61 continued the myth of the President as Supreme Boss.

But why tempt fate? The assumption that section 61 should only have minimal amendment is just another aspect of the culture of hierarchy that leads people to support the monarchy, or to support a republic only if a small elite can appoint the President. The same mind-set, I suspect, leads people to actually prefer a section in the Constitution that purports to vest all executive power in one great figurehead, even if it's not true. But we don't have to perpetuate monarchical fairy-stories in the Constitution - we can just as easily have a group of sections that set up a Presidency and give it some limited functions, and some other sections that define the executive government realistically - other countries have done it, and I have shown how we could do it in Powers and Functions of the President. As long as we do that, one of the scary arguments against popular election collapses.

And Some of the Arguments Against Popular Election are Nonsense

Another argument against popular election is that it might turn into a popularity contest - we might elect a sports star or a "soapie" star. Now the average Aussie may not be an intellectual giant (in fact the average Aussie has an IQ of 100 - that's how IQs are defined) but most Aussies do have a good deal of common sense. I simply cannot believe that most Aussies will ignore the "selection criteria" that I have listed above when they are voting for a President - they will be looking for someone with some political savvy and a track-record of fairness before they give him/her their votes. In the Irish Presidential election on 31st October, the pop-singer candidate got only 9% of the vote, coming far behind a law professor supported by the government parties, and a politician supported by the opposition. Our elitist PM and ex-PM seem to think that Aussie voters would be far more superficial - but I just don't believe that. I'm sorry, Catriona and Jo-Beth, and I'm sorry, footy stars - I don't think you're ever going to be President.

But Still, There is One Real Worry

However, one of the criticisms of popular election may have some force. It may not give us a President who best meets the selection criteria. This is another place where the sporting analogy is appropriate - consider the choice of a referee for a match between the Canberra Raiders and the Brisbane Broncos. (Fans of sports other than Super League substitute any teams you like - or, better, one you like and one you don't like.) Imagine that referees were elected by all the members of the two clubs, or everyone interested in the match - how many of you can truthfully say that you would vote for the most impartial, and technically competent, ref? The election would depend on which team had the most supporters - and you would get a biased referee who favoured that team at every opportunity.

If the President is elected by a national vote, the only people who will have the resources to run a national campaign will be multi-millionaires and candidates who are supported by political parties. Can we trust the parties to remember the selection criteria, and nominate someone who is capable of being neutral - or will each party submit to the temptation to nominate someone who will be likely to favour that party in time of crisis? And if we, the voters, are faced with a choice between someone who is likely to be biased towards Labor and someone likely to be biased towards the conservatives, what can we do except vote according to our usual party preference - even if we mutter, as we do it, "this is not the way it should be - there should be a more neutral candidate with a real chance of winning"?

In sports, selection is left to a selection panel - in some codes a panel of referees, and in others a panel with representatives from each of the clubs. This seems to demonstrate that you can actually get a more unbiased choice out of a small group which is "close to the action" than by a wider democratic process - as long as there is something in the institutional design that promotes an unbiased choice. In the proposals for Parliamentary election there is something to promote an unbiased choice - the requirement for a large majority (see below).

But the Experience of Other Countries Suggests It's Not a Big Problem

But then again - under the Irish Constitution the major candidates are generally pushed by the major political parties, and no great constitutional disaster has occurred there, and the voters have shown that they are capable of favouring one party in elections of the Oireachtas (Parliament) and yet not supporting that party's candidate for the Presidency. In last month's election the successful candidate, Mary McAleese, was indeed supported by the government party, but in the previous election Mary Robinson had been supported by the Irish Labour Party - which generally comes a distant third or fourth in elections - and won because of the impression that her own personality made on the electors. Do our elitist leaders think that Aussie voters will be less discriminating than Irish voters?

And Then, One of the Main Arguments Against Parliamentary Election is Nonsense Too

The two main arguments against election by the Parliament seem to be:

The first has some appeal - though I think we have more important rights such as the right to vote for our MPs, and the right to initiate and vote upon proposed changes to the Constitution. As long as we know that we're ultimately in charge, we don't have to vote on everything directly. If we only exercise the right to vote for the President indirectly, through our elected representatives, I don't think we've given up anything terribly important - as long as we, through referendum, have set up a system that ensures they will make a responsible choice.

As to the second argument, there are two things to say in reply. First, several of our former Governors-General - such as Sir William McKell, Lord Casey and Sir Paul Hasluck - have been former politicians, and they have commanded great respect from both sides of politics for the dignified and impartial way in which they have performed the role. Secondly, the argument seems to be based on a total misunderstanding of the proposals - a genuine misunderstanding in some cases, I am sure, but mischievous and feigned in others. It seems to be assumed, by those making the argument, that the MPs will vote by simple majority as they usually do - then, of course, there would be a tendency for the side with the most votes to elect one of their own - and, yes, that would be appalling.

But nobody that I know of has proposed election by a simple majority of politicians - all of the minimalist proposals suggest that a President can only be elected if supported by a two-thirds majority of each House, or of both Houses voting together. The whole point of that is to ensure that the politicians don't just choose someone favoured by one side of politics. In all our political history, no party or coalition has ever been able to command two-thirds of the vote of both Houses, or two-thirds of the total. [I'd like to make even more sure that a partisan choice is impossible by requiring a four-fifths (80%) majority.] This way the politicians are most unlikely to elect one of themselves - unless there is a politician who has enormous respect and trust from both sides of politics. They are, in fact, very likely to elect someone like the people who have been Governors-General over the last five decades - ex-Judges or ex- military leaders (and only one of them ever did anything controversial), and if they break that pattern perhaps people who have been recognised for their community service, or even ex-Professors of politics or law who have studied and taught about the system of government all their life - but, again, only those who are respected by both sides of politics and can be trusted to be neutral.

I read a cynical suggestion the other day that the politicians could not be expected to agree on a candidate because they are so used to arguing on party lines - but in everything that they normally do, a bare majority decision is enough. It will be a new experience for them to have to decide something under a set of rules that forces them to be near-unanimous, and I believe that they will be capable of doing it.

The advantage of the Parliamentary election proposals over popular election is in fact this requirement for a large majority. The requirement of agreement by a large majority could not practicably be imposed on a vote by the People at large, but it can be imposed on a small group meeting in one place. This is the reason for the apparent paradox that there is a stronger guarantee of getting an impartial President from an election by politicians than from an election by all the people - and, to this one member of The People, getting an impartial President is more important than my right to participate in a direct election of the President.

Hybrid Methods - Checks and Balances

Much of the debate so far has been a comparison of extremes. The Parliamentary- election advocates assume that, under popular election, just anybody - sports stars, TV people like Jo-Beth or Tim Shaw, and all - would be able to stand for President. The popular-election people assume that Parliamentary election would effectively mean nomination by the Prime Minister. But in-between methods are possible; some can be found by surveying the Constitutions of other democratic nations, and we can invent our own when other nations fail to inspire. Under the Irish Constitution (read Article 12 for the election procedure) the people eventually vote for the President but candidates have to be nominated by 20 members of parliament or by four of the County (or County Borough) Councils. Under my draft sections for Parliamentary election the Parliament would be expected to make laws laying down a process by which people could nominate candidates, and the Parliament could first rank them before submitting them to the formal vote, in pursuit of the four-fifths majority. If we can't work out something sensible - or some alternatives, all reasonably sensible - then we'd be admitting that we're the stupidest nation on earth, and, despite the odd "Aussie joke" that I've heard from Poms and New Zealanders, I don't believe we are.

Anyway, Let's Leave the Final Choice to the Sovereign People

Although I think that there is a somewhat stronger argument for election by Parliament, I have the firm view that this important issue should be decided directly by the People, either by indicative plebiscite before the drafting is completed, or by putting alternative proposals under a section 128 referendum. There are three reasons in support of this: