Khaitan’s Moderated Parliamentarism: Competing Principles and Constitutional Design Choices

Oran Doyle

Trinity College

Introduction 

Tarunabh Khaitan has provided us with a rich and multi-layered account of key questions in constitutional design. Early constitutional responses to concerns over democratic backsliding often focused on institutions and mechanisms to check the potentially backsliding activities of elected governments: protections for constitutional courts, unconstitutional constitutional amendment doctrines, heightened thresholds for constitutional amendment, etc. Ultimately, these may be little more than speed bumps, although important ones at that. More recently, greater attention has been paid to the quality of elected institutions as distinct from the effectiveness of the checking institutions. Relatedly, the importance of political parties in constitutional structures has come into focus. Khaitan’s article makes a wider contribution to the theory of constitutional design, but is also relevant to the contemporary debates over backsliding. 

Khaitan identifies four key constitutional principles in relation to political parties: purposive autonomy of parties as a means of keeping democratic costs low; the party optimality principle (likelihood that every salient voter will have a party to represent them); the party-state separation principle; and the anti-faction principle. His argument is that moderated parliamentarism combines the benefits of different regime types and electoral systems in a way that optimises these four principles. Moderated parliamentarism, in short, entails a strong bicameral legislature in which the two chambers have equal legislative powers, but one has a confidence function and the other has a checking and appointment function. The confidence and opposition chamber should be elected on a modified majoritarian basis; the appointment and checking chamber on a proportional model. 

Khaitan’s integration of electoral design and institutional design allows for new analytical insight and also provides better guidance for constitutional designers. In this short comment, I cannot do full justice to the breadth and sophistication of his arguments. But I wish to explore two aspects that remain somewhat underdeveloped, before raising one concern over method. 

Parliamentary Terms 

In his version of moderated parliamentarism, the confidence chamber has a shorter maximum term (four to six years) with its members all being elected at one time, as opposed to the appointment and checking chamber (six to 10 years) where members would be elected on a staggered basis. In his view, holding elections for the two chambers largely asynchronously is likely to increase the levels of moderation in the system. In my view, however, another design feature somewhat militates against this expectation of moderation: the confidence chamber can both fire and be fired by the premier. It follows that there is no fixed schedule for elections to that chamber. If the premier has an unfettered power to dissolve the confidence chamber—which appears to be the case although is not explicitly stated—then she can use this power opportunistically to try to align elections to the confidence chamber with elections to the other chamber where her own party has a greater opportunity to pick up seats. Such an outcome could be avoided by a fixed term requirement for the confidence chamber, but recent events in the UK have shown the difficulties of maintaining a commitment to fixed terms. Khaitan might reasonably consider that fixed terms for the confidence chamber are inappropriate, but it would be interesting to learn more about the trade-offs. 

Finance  

Khaitan does not specify whether there is any distinctive treatment for financial powers. The two chambers have equal legislative powers and therefore appear equally capable of denying the executive the funds it needs to run the country. Khaitan provides a general defence of the possibility for stalemate between the two chambers, on the basis that it will encourage compromise in the political institutions, as the executive needs to build support for its legislative programme in the checking and appointment chamber. Moreover, he considers that the staggered elections will ensure that there is never a legitimacy tie between the two chambers, so that the checking and appointment chamber will not ultimately overstep its role. 

It is arguable, however, that financial supply is tantamount to confidence and should not be open to obstruction from the checking and appointment chamber. To illustrate this, I will refer to two features of the Irish Constitution. I mention these not to suggest that they should be followed, but rather on the basis that they at least illustrate that there is an important issue here to be addressed.  

Article 17.2 prevents the lower House from approving the appropriation of revenue without the prior authorisation of the Premier. While the Upper House does not have equal legislative powers with the Lower House, its powers over financial legislation are reduced even further. Money bills can only be initiated in the Lower House. The Upper House can only consider such bills for 21 days and can only make recommendations for amendment. 

To some extent, these limitations reflect the fact that the Upper House in the Irish Constitution has much lower electoral legitimacy than Khaitan envisages for the appointment and checking procedure in moderated parliamentarism. But there is, I think, a broader point about the role of financial supply to the balance between legislative and executive powers. Under Khaitan’s model, it would appear possible for the Executive to retain the confidence of the confidence chamber, while being starved of funds by the appointment and checking chamber. It would continue in office, but not in power. While the Premier could trigger elections to the confidence chamber, there would be no way to adjust the electoral schedule for the appointment and checking chamber. Khaitan might respond, consistent with his general view on equal legislative powers, that the appointment and checking chamber would not believe that it had the legitimacy to refuse financial supply. But this raises the question as to why we would introduce very specific constitutional rules to minimise some risks, while relying on the legitimacy perceptions of constitutional actors to reduce other risks. This balancing of risks is central to an assessment of whether Khaitan has achieved his ambition to optimise his four constitutional principles for the treatment of political parties. 

From Principles to Choices 

Khaitan is somewhat equivocal about the ambitions of his article. At one point, he seeks to defend moderated parliamentarism ‘as an attractive way to optimize our four constitutional principles’, not ‘the only defensible way’ as that would require a consideration of all possibilities. Later he states, ‘other things being equal, moderated parliamentarism is likely to better optimise all four of the constitutional principles.’ This suggests an implicit comparator (better than what?) but there is a further concern with the claim for optimisation, which implies the best realisation of the four principles, not just an adequate realisation.  

Khaitan accepts that the four principles are ‘sometimes conflicting’. There are also tensions within each principle. The first principle is that constitutions should guarantee maximum autonomy for the organisation, etc., of parties, but moderated by the restrictions necessitated by their purpose of winning state power. The second principle is that the party system should broadly represent every major ‘voter type’, but not at the cost of making information costs too high. The fourth principle is that constitutions should discourage factionalisation of parties. 

The potential for conflict within and between these principles is clear. Although there may be a valid distinction between parties that cater for major voter types and parties that cater for factions, regulations to control this probably need to risk either over-inclusion or under-inclusion of potentially factional parties. These tensions are not of themselves problematic; nor do they deprive Khaitan’s principles of analytical utility. But they do suggest caution about any claim that a particular system optimises the principles. I am not convinced that it is possible to optimise – as distinct from reasonably instantiate – a set of principles that are internally and mutually competitive. 

These tensions, it seems to me, reflect the broader tension between the desire for a governing system to be equipped with political powers adequate to respond to citizens’ preferences and concerns, and the fear that such a system may allow for dangerous concentration of political power. My brief account of finances above perhaps suggests that Khaitan fears the concentration of power over the lack of responsiveness. Writing generally about the need for legislative compromise, Khaitan comments: 

Mixed bicameralism therefore incentivises policy-based shifting alliances between parties necessitated by the need for a majority in the checking chamber, forcing the ruling party to take at least a part of the opposition along on most legislative issues. 

In his view, the greater legitimacy of the confidence chamber, achieved through differing electoral terms, secures ‘systemic moderation’ rather than gridlock. But if one prioritised responsiveness to citizen concerns, one might not be content to rely on perceptions of legitimacy to avoid the risk of gridlock. One might choose to ‘optimise’ the principles in a slightly different way that increased executive responsiveness, albeit at the risk of some power-concentration. Khaitan’s ground-breaking article provides an analytical and normative framework that compellingly highlights these choices but does not resolve them. 

 Oran Doyle, Professor in Law, Trinity College Dublin. 

Suggested Citation: Oran Doyle, ‘Khaitan’s Moderated Parliamentarism: Competing Principles and Constitutional Design Choices’ IACL-AIDC Blog (25 May 2021) https://blog-iacl-aidc.org/workshop-my-paper/2021/05/25khaitans-moderated-parliamentarism-competing-principles-and-constitutional-design-choices.