WashProfile

Gideon Maltz, an associate of the international law firm Hogan & Hartson

Question: How do governments usually explain the need for constitutional reform with regard to either eliminating or extending the presidential term limits?

Maltz: To start, there is a distinction between eliminating term limits and extending them. When it comes to extending term limits, where that has been done the most has been in Latin America. They moved from one term of five years to two terms of four years, for a total of eight years. The government said, look we just don’t have enough time, one term is absurd and we need two terms. I think moving from a singe term to two terms is justified.

With respect to eliminating term limits, the justification is usually an attack on term limits themselves. If we have a great president why should we be constrained? Surely a country in difficult times, whether it’s economic difficulties or national security difficulties needs a strong leader? Generally those sorts of arguments, and most of the time it seems like it’s not a very vigorous debate. On one side you have the government with all the power saying we should eliminate term limits, on the other side you have the opposition which is putting forward a more formed argument. The government is not so much putting forward an argument, as much as an excuse to justify what it wants to do. It doesn’t always work, whether it works or not depends on the power of the opposition and the power of civil society than it does on the strength of the intellectual argument.

Question: How do the official explanations given by governments compare to the actual motives for changing the presidential term limits and under what circumstances do governments usually decide to change them?

Maltz: This is a tricky question because there is always going to be an arbitrary cover. One can always argue that eight years is arbitrary, so why not make it ten? At a certain point it becomes absurd. Every consolidated democracy in the world has presidential term limits. The very vast majority of them have two terms with a maximum term limit of about five years. While that is something of an arbitrary cut off, I think that a consensus has emerged, which is roughly around two terms of four to five years. Of the forty eight electoral democracies that have presidents with even moderate powers or direct election; the median duration of a two term presidency is ten years and the average duration is eight years. The only three countries that are in excess of ten years are Sri Lanka, Austria and Finland. The bottom line is that two terms of six years is at, and barely within, the outer limit of the international norm.

With regard to the Latin American situation where they had a tradition of a one term presidency, there is a credible argument that can be made that one term isn’t enough, and that moving from one term to two terms is legitimate. I think moving beyond that, eliminating or moving from two terms to three terms, or extending the duration, at that point I don’t see a very strong principled reason for that. My suspicion is that in most of those cases they just want more time in power.

In almost every situation I can think of, the timing has always been driven by the end of the incumbents’ tenure. So it’s almost always one or two years out, sometimes a bit further out; like Chavez in Venezuela, his term is going to end in three or four years, but earlier this year he actually undertook a step in an attempt to extend it. Most of the time and especially in a young democracy, it’s two years left and the members of the government start saying, we don’t want to see this president go, we should really keep him on, and if there is some sort of economic or national security crisis, then they may use it for justification. But the actual reason is because the term is coming to an end.

Question: What is your opinion regarding the current situation in Russia, where the government is trying to extend the presidential term from four to six years?

Maltz: The Russian situation is very unusual. First, the next presidential election is far out, second, I can’t think of a situation where it’s being done for the next president. At the same time, the politics there are far more sophisticated than let’s say Zambia, so it’s not shocking that they might have more foresight and they might be a bit more subtle about how they go about doing it. The other thing that is interesting about Russia, and several countries like it, is that they are clearly trying to think of ways to go around the term limits, but at the same time they do feel obliged to pay lip service to the constitution. Governments in some countries simply say; we don’t like these so we are getting rid of them. The Russian situation is somewhere in-between, because it’s not eliminating them but it’s going beyond what most countries have in terms of the duration. There was a school of thought which said that Putin in one or two years before he finished would say “presidential term limits are a western invention, and we don’t need them, so let’s get rig of them.” It’s interesting that despite his power and popularity, Putin didn’t feel like he had the legitimacy to do that. He felt the need to step down and now they are sort of doing things in a way that complies with the constitutional process and they are going to a tremendous depth to make it appear to be consistent with democratic norms.

Question: What effect does the extension or reduction of presidential term limits have on the effectiveness of the government, domestically and internationally?

Maltz: First, I should add that it’s vanishingly rare for governments to reduce term limits. With respect to the countries that have extended them or eliminated them, there is a theory and there is reality. The reality is that most of the time, although not always, it goes hand in hand with a government that is growing more powerful, a powerful president that is most likely packing the court and challenging the parliament, so it’s really hard to isolate one of those factors. A powerful president might allow for some short term benefits by creating greater stability which might lead to more economic investment, but in the long run it usually leads to a general erosion of democracy, protection for investors and economic freedom. And of course the longer they are in power and the more power they accumulate, when they do eventually leave the greater the fall. Because the more powerful the president is and the longer he has been in charge, the worse the succession battle becomes, and the more infighting there is going to be. Although this can work in democracy’s favor at that point, it can also be very destabilizing. There is always a tradeoff. Yes it’s more stability, yes it’s more experience, but the cost is the negative impact on the democratic process. So two terms of four to five years each, strikes me as a pretty fair balance.

With regard to international diplomacy, a lot has to do with international norms of democracy, which unfortunately are not very well developed. On one side, there is the experience argument. If somebody has been dealing with international affairs for decades, he will probably do better than a novice president. But the flip side of this is how that leader is regarded. There is a consensus that people who stay in power for too long are illegitimate, but exactly when that becomes costly for an international leader is difficult to say. It’s a bit different ostracizing a leader of a very large and powerful country from lets say the leader of Uzbekistan. So I think smaller countries may have a greater normative price to pay.

Question: What effect does changing the presidential term limits have on the average population?

Maltz: There are two main justifications for term limits. One is that it’s always good to get a new leader, but the more important one is regarding the alteration of political parties. When you have real term limits for president, it’s more likely that the opposition is going to take power. There have been surveys conducted in Africa which show that political party alteration is directly related to the level of satisfaction with democracy. These surveys, conducted across twenty countries, found a linear relationship that with each passing year since a political party alteration the percentage of people who lacked confidence in democracy increased. The confidence continued to degrade, until there was a political party alteration, after which it would shoot up again. So having political party alteration really restored people’s faith in democracy. Voting in an election is one thing, but actually seeing that the government can step down and that change can actually happen, really restored people’s faith in it. I believe that political party alteration is crucial for making people understand that democracy can actually affect things.

The other part is the issue of corruption. There was an article which looked at the relationship between political party alteration and corruption in the former Soviet Union. The research showed that corruption was lower in countries with more political party alteration. The explanation was that if you are a big businessman and you are thinking whether or not to pay off the government, if you think that the person in the government is going to be in power for the next ten years, it makes your investment in corruption worthwhile. On the other hand, if you think that this government official might get kicked out next year and that the new people not only would not honor your deal but might even prosecute you, so you think well, maybe I don’t want to go through with this payoff. Also, cleaning out the ship and making the new government start with a blank slate without all of those cronies reduces corruption. The link is an indirect one; both benefits come from a political party alteration and it’s a greater probability of that if you have real presidential terms.

Question: Does globalization diminish the significance of presidential term limits?

Maltz: It’s possible to imagine countries where the multinational actors are so strong that the government is really playing a very small role, but in a country with a strong government and a strong president, globalization has a lesser effect and presidential term limits still matter a great deal. 

Question: In your article you warned about a trend of extending the presidential term limits. What effect might that have on the international norm of adhering to presidential term limits?

In your article you warned about a trend of extending the presidential term limits. What effect might that have on the international norm of adhering to presidential term limits?

Maltz: I believe that what matters in how this norm is developed. First, how important and influential is the country that is extending its term limits? In the case of Russia, it would matter because I think Russia is very influential. Certainly its neighbors and even countries further abroad might think, if they can do it so can we. That matters more than when let’s say Uzbekistan does it. Second, how easily they do it. There are countries where the government managed to get presidential term limits abolished, but did so at a huge cost. For example, in Uganda there was huge opposition to it, and a good reason to believe that there was a wholesale bribing of elected officials. So they got the legislation through, but it was at such a cost that it’s possible that other countries looked at this example and said that we have to really want this for it to happen. Third, how is the rest of the world going to react to it? It’s difficult for governments to anticipate whether it’s going to be easy for them to push through this legislation and how the world is going to react. If it’s easy and the world reacts completely nonchalantly then I believe it would have the effect of making other countries think, oh we should try that as well.

Every single consolidated democracy in the world has term limits. Strong democracies are always going to have it because it is pretty entrenched. The issue is what happens to these semi-democratic countries? They are much more malleable. If they feel like term limits are a core part of what it means to be called a democracy, then there is a good chance that some of them will go along. If they feel, however, that it’s not necessarily part of the definition, then it’s just another constraint that they might be willing to break. That’s where the norms are the most complicated and the most ambiguous. If, you have a bunch of countries move in one direction, it wouldn’t be surprising to see other semi-democratic countries move in the same direction.