Appointment and Dismissal of Government

10.3.1 Overview

Westminster constitutions and those who originated from that concept such as Australia,^[657] Ireland or Malta demand that ministers and among them Prime Ministers necessarily be elected members of Parliament to ensure a close proximity between the parliamentary majority and Government.

This section will focus on the appointment of the Prime Minister and what mechanisms countries have developed to overcome and impass if Government cannot easily be formed in the absence of clear majorities. Countries have had to endure lengthy periods when polititians were unable to form Governments.^[659]

This section also opens the opportunity (under Sect. 10.3.2.2) to take a closer look at semi-presidential systems and in particular the possibility to dismiss a Govern­ment or even individual ministers of a Government by the President.

10.3.1.1 Historical Context

Appointment and dismissal of cabinet members was vested in the monarch for many centuries. The eighteenth century saw the rise of powerful Prime Ministers, such as Fleury, Choiseul, Turgot, Vergennes in France, Walpole in Newcastle and William Pitt the elder in England, Tannuci in Naples, Kaunitz in Austria, von Stadion in Mainz, Munchhausen in Hannover, Bruhl in Saxonia or Bernstorff in Denmark.^[660] Up until the end of the nineteenth century however, Government was always appointed and dismissed by the monarch.

Fig.

10.3.1.2 Structural Approach and Guiding Questions

The questions in Fig. 10.1 arise with regard to the design of constitutional clauses on the appointment and dismissal of the Head of Government and cabinet members.

10.3.2 Details of the Clauses

10.3.2.1 Appointment of the Head of Government

The majority of presidential systems work without a Prime Minister, however some as e.g. Azerbaijan, Kazakhstan, Uzbekistan, Tajikistan or Belarus have or used to have a Prime Minister next to the President, who is entitled to appoint the Prime Minister. In parliamentary and also semi-presidential systems it is often the Head of State who jointly with Parliament makes the appointment. The exact mechanism however is important to determine the distribution of power between President and Parliament. (Table 10.1).

When countries move from presidential or semi-presidential systems to more parliamentarian systems the appointment clause plays a major role. Change e.g. occurred in the Republic of Georgia^[664] or in the Ukraine which was concerned about electoral fraud in the past: In the context of the Orange Revolution^[665] in 2004 the Parliament of the Ukraine passed a law^[666] amending the constitution which weakened the power of the President of Ukraine. As a result of the new law, which came into force in 2006, the President lost the power to nominate the Prime Minister of Ukraine. Instead of the President, the Parliament was now solely responsible for the nomination. However, these changes were not in force for long as the Constitutional Court of Ukraine overturned the 2004 amendments in October

Table 10.1 | Appointment of head of Government

Table 10.1 (continued)

Table 10.2 | Dismissal of Government/single ministers in semi-presidential systems

2010, considering them ‘unconstitutional’. In the light of the Euromaidan protests,^[667] the Ukrainian Parliament decided in February 2014 to reintroduce the 2004 amendments.

The examples in Table 10.2 stretch from exclusive parliamentary dealings in Sweden where the speaker of Parliament takes the coordinating role to Presidential only appointments. In practice it is of utmost importance which actor has authority to nominate the candidate for the Prime Minister. The greater the role that Parliament plays in this process the more the system is leaning to a parliamentarian democracy.

10.3.2.2 Dismissal of the Head of Government and of Individual Ministers

Usually the authority to dismiss the head of Government is vested in the organisation which has appointed the office holder, e.g. art. 109 j. of the 2019 Cuban constitu­tion.^[668] However in some countries this again is only possible upon proposal of the counterbalancing organisation.^[669] Instruments in parliamentarian systems such as the vote of confidence and the vote of non-confidence are discussed in Sects. 10.4 and 10.5. In semi-presidential and presidential systems it is usually the President which dismisses the head of Government, even though, e.g. the French President is not entitled to do so. The French President, may name the Prime Minister but cannot dismiss him or her unless Prime Ministers offers their resignation.^[670]

It is worth to take a closer look at the question of dismissal in semi-presidential systems^[671] as this allows drawing a conclusion about the distribution of power between President, Head of Government and Parliament.

The Table 10.2 displays the different nuances of distribution of power between the three institutions (President, Parliament, Head of Government) within different semi-presidential systems as far as the dismissal of (members of) Government is concerned. In some countries, like Russia, the President is extremely powerful in that matter (see on top of the table); in others, like France, Poland, Tunisia or Romania, the President does not have a right of initiate the dismissal (see at the bottom of the table).

More precisely, in Russia, the President is in that respect nearly as powerful as in a presidential systems: Not only can he decide upon the resignation of Government as a whole (art. 83), which President Putin e.g. exercised in January 2020. He can also overrule the expression of no-confidence of the State Duma, which can ulti­mately lead to the dissolution of the State Duma itself (art. 117.3). Despite President Putin’s intention to strengthen the rights of the State Council in January 2020, according to his constitutional amendment proposal finally tabled the State Duma shall have the right to appoint ministers except for the so-called “ministries of power” (interior, defence, foreign affairs, justice and emergencies), which shall exclusively be appointed by the President.^[672] This does not include the dismissal of the cabinet altogether, which is left to the Prime Minister.^[673]

It is also worth noting that some constitutions distinguish between the affected ministerial departments (see above: President Putin’s proposal to give Parliament the right to appoint Ministers except for Interior, Defence, Foreign Affairs, Justice and Emergencies). In Egypt, the President has the right to choose the Ministers of Justice, Interior, and Defence under specific political circumstances (art. 146).) In Tunisia, the Head of Government must consult the President only if he aims to dismiss the minister of foreign affairs or defence (art. 92). This accredits these ministries a higher relevance, although the used term “consult” provides both Head of Government and President with a lot of political scope in praxi.

In other semi-presidential systems, a closer look is necessary to uncover the power of the President: In Namibia, the President has the power to appoint ministers. They can explicitly only be dismissed by a vote of no confidence by the Parliament. However, it is commonly agreed and constitutionally practice that the power to appoint ministers includes the power to dismiss them.^[674] In Burkina Faso, presiden­tial power regarding that matter is weaker: Article 46 provides that the President can only terminate the function of Ministers on proposal of the Prime Minister. How­ever, article 46 also states that the President has the right to dismiss the Prime Minister any time. In context with article 69, that clarifies that any vacancy of the post of Prime Minister automatically terminates the functions of the other members of the Government; the President can dismiss Government without action of Prime Minister, but not single Ministers. Apart from that, Parliament can initiate a motion of no confidence aimed at the Head of Government.

In some systems, the President has a right of initiative regarding this matter, but requires approval of either Parliament (e.g. Egypt, art. 147) or the Head of Govern­ment (e.g. Peru, art. 122).

In other semi-presidential systems Prime Minister and Parliament are traditionally more powerful: In France for example, contrary to the in-general powerful image of the President, the President’s hands are tied with respect to individual ministers and can only terminate the appointment of a single minister after proposition by the Prime Minister. Also, the dismissal of Government can only take place after its resignation by the Prime Minister or after a resolution of no-confidence (see in this Sect. 10.4, Table 10.12) by the National Assembly. This mechanism of checks and balances, where the initiative has to come from the Head of Government or Parlia­ment, has often been adopted by other semi-presidential francophone countries (e.g. Tunisia) and other nations (e.g. Poland, Peru). In Romania the system is almost identical, although art. 109 points out that Government is politically accountable only to Parliament, which strengthens its independence from the President.^[675]

In these systems, the President is only needed for the formal act of resignation. The fact that Government is depending on Parliament to stay in office is likely to provide more political stability. However, in France it was customary law that Government resigns shortly after a presidential election or an election of the National Assembly at a time where elections did not coincide and a cohabitation was possible.^[676] This was to ensure that the President, who was then not elected at the same time as the National Assembly, can nominate a Prime Ministers he could hopefully productively work with.

Generally it is assumed that even in constitutions which do not contain an original right to dismiss Government the President can separately build up political pressure upon the Head of Government to resign due to his supreme position.^[677]

New democracies deriving from authoritarian systems at times opt for the semi- presidential system as they are uncertain whether a parliamentary system will initially be accepted by a country which has been focused on leadership structures.^[678] Many former Soviet Republics have done so in the nineties. The semi-presidential system bears the risks that the accountability for actions by the executive is not clearly defined as practically two heads of the executive rival for power. Semi- presidential systems differ significantly in how power is separated. However, the overwhelming practice and the one also established by the original model of the semi-presidential system, the French constitution, is as follows: The President is entitled to appoint the Prime Minister, however cannot meddle in the composition of the cabinet. This is the competence of the Prime Minister who has to operate with his ministerial colleagues on a day-by-day basis. Consequently, the President cannot and should not be entitled to dismiss individual members of the cabinet. Loyalty of all ministers must strictly remain with the Prime Minister and not be additionally owed to the President. In addition, a distinction between certain ministries (e.g. “ministries of power” in Russia, see above) cannot be recommended, as this grants some ministries a higher importance than others and thereby undermines the Government’s collegiality principle.

10.3.2.3 Separation of Appointment from Selection of Candidate

In many countries the power of the head of state is limited to the formal act of appointment and the selection of the candidate is made by other constitutional institutions (e.g. Japan). In the United Kingdom as a constitutional monarchy the Prime Minister is officially appointed by the Monarch as head of state but his or her role is purely constitutional since the leader of the party with the majority of seats will be appointed.

In the Westminster tradition of some common law countries the appointment of a new Prime Minister in between elections only occurs at the caucus of the majority party in power as e.g. it was frequently the case in Australia.^[679] The new Prime Minister is then directly appointed by the Australian Governor-General without a prior vote by Parliament. This can usually only work in countries without multi-party coalition governments. In any case it is recommended to have the entire Parliament

officially elect its new leader to ensure that all parties can voice their position on the proposed new Prime Minister.

The question of separation is therefore actually a question of the allocation of competences and the involvement of different bodies (as a safeguard mechanism). As long as the power lies with only one constitutional actor, there is always the danger of a concentration of power followed by abuse. On the other hand, the division of authority leads to fact that the entire electoral process is much more extensive, because the more actors involved, the greater the risk of disagreement and conflict.

10.3.2.4 Forming Government in Case of Uncertain Majorities

Belgium is a country exemplifying the need to establish mechanisms for forming Governments in case that a majority cannot be achieved after elections. Other countries have in contrast established various mechanisms to steer out of the crisis as Table 10.3 demonstrates.

Some countries attempt to avoid a situation of disagreement by setting the conditions for rejection of the nominated candidate very high. In Sweden, where the whole process of the selection and appointment of the Prime Minister is exclusively in the hands of the legislature, the Parliament can reject the election of the Speaker. Only if an absolute majority of the members vote “no” the nomination is rejected; otherwise, it is confirmed.^[680] Because the Riksdag can agree to a Prime Minister without obtaining any confirmatory votes and only rely on abstentions, the Speaker must consult the representatives of the various party groups and confer with the Deputy Speaker prior to placing the proposal.^[681]

Other constitutions envisage that the threat of a repetition of the election will force the parties to come closer together, find an agreement and resolve the situation themselves. The German constitution focuses on the will of Parliament and stipulates several ballots as a first step: If the President’s nominee is not elected, the Parliament can agree on a different candidate as Chancellor in the following 14 days, but they still need the majority of its members. If a candidate was elected with an absolute majority of votes (regardless in which period of voting), the President then has to appoint that person and since he is not in the position to refuse, the disagreement is dissolved.^[682] The correlations between the executive and the legislative are particu­larly evident whenever the Parliament cannot agree on a candidate with an absolute majority. The Parliament then has to vote again and the person who receives the most votes is then elected (simple majority). Once this has happened, the President has to decide to either appoint the candidate within seven days or dissolve the Parliament.^[683] Although the will of Parliament is therefore in the foreground, the President’s right of dissolution provides a safety mechanism to ultimately guarantee

Table 10.3 | | Conflict resolution mechanisms in case of uncertain majorities

Table 10.3 (continued)

that the democratic institutions are functioning. Looking at the dismissal clauses, it is noticeable that the German model of a constructive vote of no confidence has the advantage that the function of the state and politics is maintained in any case since the old chancellor can only be voted out if a new chancellor has been agreed on.^[684]

Other constitutions do not rely on the parties involved coming to an agreement on who is going to be nominated, but rather regulate in the constitution itself who is to be nominated. The Greek constitution stipulates a very detailed procedure for such cases: Prime Minister will be the leader of the party with the absolute majority of seats in Parliament. If no party has that absolute majority, an exploratory procedure shall be initiated in which the candidate shall be appointed who enjoys the support of Parliament (next nominee is the leader of the party with a relative majority, after that the leader of the second largest party in Parliament, and if this still proves to be unsuccessful, third largest party in Parliament).

Other countries resolve the case of disagreement by stipulating in the constitution which body has the final word and thus ultimately decides on the candidate if certain efforts to help the parties reach a consensus have not been successful. According to the Japanese constitution, the Head of State (the Emperor) must appoint the person elected by the legislature (National Diet) but it also contains provisions which deal with the case of disagreement within the election process: If the both Houses of Parliament cannot reach an agreement, the House of Representatives decision will become the decision of the Diet.

Some constitutions formally limit the power of the President by determining that the candidate elected by the Parliament becomes Prime Minister ipso jure if the President does not appoint him/her after a certain period of time has passed.^[685]

The Russian constitution follows a decisive approach: the President initially submits a nomination, which the State Duma can reject. However, if the State Duma has rejected the President’s nominations three times, he can appoint his nominated candidate or decide to dissolve the State Duma. Georgia adopted a similar system in 2010-2013. In this circumstance the constitution should clarify whether the President can nominate the same candidate several times.

Ultimately, constitution should foresee a decisive mechanism of how a country can move out of such constitutional crisis. Often it is the President of the country exercising his/her arbiter function to overcome the stalemate.

10.3.2.5 Timeframes When Forming Government

Where several constitutional actors are involved, certain time frames can help to bring the different bodies to a consensus. Otherwise, the risk might arise that the parties will argue without any prospect of an end and with the aim of wearing down the opponent or leading to unrest such as in Irak in 2022. The pressure created by a time frame can therefore help the parties to agree on a compromise. It also makes the procedure more predictable. As can be seen in Table 10.4, many clauses contain specific time components to support the different procedures.

Time frames are in place for the nomination process, for the appointment of the Prime Minister and/or for the agreement process. The time frames usually range from a few days to several weeks.

Table 10.4 has to be read in connection with Table 10.3. It is often the time pressure which forces the parties involved to come to a resolution. However, it is noted that despite the precise time frames outlined in Table 10.4, Angela Merkel needed 171 days or almost half a year in 2017 to be elected chancellor when the so-called Jamaika coalition negotiations failed and a grand coalition between liberals and labour was re-installed in Germany. The time frame therefore needs to be tight from all angles if it shall work.^[686]

10.3.2.6 Detail of Appointment/Dismissal Clauses

The required detail of appointment/dismissal clauses depends on how the distribu­tion of powers is regulated: if the power to appoint /dismiss the Head of Government is solely in the hands of the Head of state, the clause does not require a lengthy sec. for cases of disagreement. If, on the other hand, several constitutional actors are involved in the selection and appointment as well as the dismissal, the clause needs

Table 10.4 | | Timeframes when forming Government

(continued)

Table 10.4 (continued)

to include such provisions, which can set specific time limits or/and stipulate a specific procedure (e.g. multiple ballots).^[687]

10.4