Dissolution of Parliament

9.1.1 Overview of the Dissolution of Parliament

Even in the case it is not exercised, the right to dissolve Parliament is a powerful political instrument capable of influencing the effective functioning of both Parlia­ment and Government.

Depending on its constitutional configuration, the right to dissolve Parliament can easily destabilize the political balance of power between Government and Parlia­ment. The possibility of ending the term of Parliament contains, in principle, advantages and risks for the balance of political power. If this right is granted to the President or Head of Government, it can lead to a concentration of political forces in one hand and, at the same time, it can turn into a dangerous political weapon in political or constitutional crisis opening doors to an autocratic rule.

On the other hand, a strong limitation of the right of dissolution or the existence of a parliamentary right of self-dissolution can reduce strength and stability of the executive force, endangering the effective operability of the government.

If a right of dissolution does not exist at all or only in a very limited way, an insoluble conflict between the various institutions can lead to a total breakdown of

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Sydney, Australia

e-mail: wbabeck@writingconstitutions.com

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the Government machinery.^[572] In certain cases, it may therefore be advisable to refresh the political realities in order to avoid still stand and to guarantee an effective cooperation among the different organs.

The mechanism of dissolving Parliament can be used to renew the political legitimacy of the political mandate and eventuate premature parliamentary elections. In general, however, dissolution of Parliament is an instrument of last resort, an ultima ratio where extraordinarily the executive power can temporarily cease the activities of the legislature.

Strong parliamentary democracies vest the right of dissolution also in Parliament itself to allow to resolve an impass. Austria, after the Ibiza affair in 2019 which led to a dismissal of chancellor Kurz by a successful vote of no confidence saw President van der Bellen form an independent interim Government consisting of expert. The Austrian Parliament then dissolved itself and fresh elections took place in September

2019. ^[573]

At the same time any attempt to shut down Parliament beyond the explicit mechanisms set out in a constitution should be prohibited and internationally despised. They contain the attempt to silence the legislature often in crucial moments. The Supreme Court of the United Kingdom has underlined this in its 2019 decision where Prime Minister Boris Johnston attempted to implement decisions relating to the departure of the United Kingdom from the European Union by bypassing Parliament under the pretext of a required closure of over 4 weeks.^[574] The British Supreme Court ruled that the prorogation was unlawful because it frustrated Parliament’s constitutional functions.

9.1.1.1 Definition

The right to dissolve Parliament may be defined as the power to end the term of office of a Parliament or other legislative assembly when members of the assembly cease holding office and new elections take place.^[575]

9.1.1.2 Purpose and Function of the Rule

As a threat, the power of dissolution can be seen as a mechanism to sustain and preserve the balance of power attributed to the different institutions by the constitu­tion.^[576] However, it can also be regarded as a powerful political instrument to enforce party discipline and strength the executive.^[577] In an executed form the power of dissolution is effecting change.

Fig. 9.1 Procedure when drafting a dissolution clause

Parliament is often complementary to the typical double responsibility of Govern­ment to President and Parliament in semi-presidential systems.^[578]

9.1.1.3 Historical Context

The right to dissolve Parliament can be found in the early monarchical constitution in Europe. This wide royal power was established in many of the earliest written parliamentary constitutions such as the French Constitutional Charter of 1814, the Belgian constitution of 1831, the Romanian constitution of 1866 and the Japanese constitution of 1889.^[579] The dissolution power in the constitutional monarchy tradi­tionally belonged to the Monarch and was at that time generally limited to the dissolution of the first chamber.^[580]

Historically the power of the monarch was subject to no restrictions. The disso­lution of Parliament was at the discretion of the monarch, who could exercise it at will and without providing a specific reason. The royal power of dissolution was in these early monarchical constitutions considered as an “inherently conservative royal check against parliamentary power”.^[581]

Today the right of dissolution in many constitutional systems is vested in the President (e.g. France, Azerbaijan, Bangladesh, Belarus).

9.1.1.4 Procedural Questions

The right to dissolve the Parliament can depend on several procedural obstacles (Fig. 9.1). Some constitutions demand a prior consultation (e.g.

9.1.2 Details of the Dissolution Clause

9.1.2.1 Should Parliament be Immune from Dissolution by the Executive?

Various structural possibilities exist for the exercise of the right of dissolution. Before creating an explicit right of dissolution it has to be reviewed whether the constitutional system already contains mechanism which can lead to adequate solutions in the event of conflict between the political institutions. In some constitutions, however, the right of dissolution does not exist at all. The legislative is therefore immune to dissolution by the executive branch (e.g. Argentine, Cuba, Ecuador, Liberia, Paraguay, Norway, San Marino).

Generally, three different approaches of dissolution mechanisms can be found in the constitutional systems.

First a right of self-dissolution can be attributed to the Parliament itself. Such a right reflects a strong position of Parliament in the constitutional system. However, a pure right of self-dissolution remains an exception but does for example exist in the Austrian constitution (art. 29 (2) B-VG).^[582]

Other constitutions do not explicitly include a right to dissolve Parliament. However, other mechanisms exist in these systems which lead to dissolution, for example as a consequence of a vote of no confidence or in the case of a failed budget. The constitution of Estonia, for example, provides that if no-confidence is expressed in the Government or the Prime Minister (art. 97) or if the Parliament has not passed the state budget within 2 months after the beginning of the budgetary year (art. 119), the President may/shall declare extraordinary elections.

Finally, the most serious encroachment on parliamentary rights is the forced dissolution of Parliament by the Head of State such as the President or Prime minister with or without interaction regarding other political institutions or other restrictions.

In some cases, however, the Head of State is granted an unrestricted right of dissolution without formal, substantive or temporal restrictions. In the constitution of Oman, for example, the Head of State can determine at his own discretion and

Fig. 9.2 Structural approach for a dissolution clause

without any restriction in which circumstances the Parliament should be dissolved.^[584] Oman however, does not allow political parties and is not a democracy and therefore not comparable with constitutions of other countries in this review.

The right of dissolution in national constitutional law can however take on a wide variety of forms both in terms of entitlement and procedural requirements.

Before creating a clause including the right of dissolution, certain essential questions need to be answered. First of all, it is important to decide which constitu­tional organ should be able to end the term of parliament. Furthermore, the constitu­tional requirements of the exercise of the right of dissolution must be determined. An important aspect is also the question of whether and how the right of dissolution should be restricted and whether a third power should be involved in the process (Fig. 9.2).

9.1.2.2 Which Organ Should Be Able to Dissolve Parliament?

Depending on the constitutional system of a country, various organs may be empowered to dissolve Parliament. An essential question is whether Parliament should be granted a right to dissolve itself or whether dissolution should be a prerogative of the executive branch to control the legislative (Table 9.1).

The question which organ should be able to dissolve Parliament prematurely, contrary to its democratically legitimized duration, is of elementary importance. By granting this right to the executive power, the distribution of powers in the constitu­tional system is affected. This carries the risk of weakening the democratically elected Parliament. On the other hand, however, it also offers the Head of State the possibility of assuming a conciliation and mediation function in the political process. This instrument can therefore be seen as “a check to sustain and preserve the balance of power that is struck by the constitution”.^[585]

A mixed approach, which grants both the Head of State and the Parliament a right of dissolution, is to be recommended. This leads to an equality of arms between the various powers. Thereby it can be avoided that, regardless of which party, pressure is exerted unilaterally by the threat of dissolution. This can contribute to finding a

Table 9.1 | Organ to dissolve Parliament

consensual solution to the conflict and thus promote interaction between the various institutions. It may however also lead to a stalemate.

Finally a proposed modus operandi which is not at all recommended: In the Ukraine Kuchma pushed in 2000 for the possibility to dismiss Parliament by popular vote by means of a referendum, but the Constitutional Court did not allow this question to proceed as it violated the Ukrainian constitution.^[586]

9.1.2.3 In What Circumstances Should the Right of Dissolution Be Exercised?

The question in which situations and under which conditions dissolution of Parlia­ment may be considered requires detailed examination (Table 9.2). There is, for example, the possibility to leave the dissolution without restriction to the discretion of the Head of state. On the other hand, there may be situations in which dissolution

Table 9.2 | | Conditions for dissolution

can be considered unavoidable. For example, if the Parliament failed to elect the Prime Minister/Government, failed to adopt decisions on the new program of the Government or the Budget or if the existing Government has lost parliamentary confidence.

It may well occur in everyday political life that a conflict between the executive and legislative branches arises and that none of the institutions involved is willing to deviate from their opinion. The threat of dissolution of Parliament may be sufficient to promote dialogue between the parties and prevent political stagnation.

In the event of political deadlock, there must be a mechanism to restore the effective functioning of the constitutional bodies. In Australia,^[587] for example, the Governor General on recommendation of the Prime Minister is empowered to dissolve both houses of parliament. This particular “double dissolution mecha­nism”^[588] allows the executive to overcome a legislative deadlock. This is necessary, for example, when the House of Representatives passes the same bill and the Senate has rejected it both times. The right of dissolution is thus not only a tool for the executive to exert pressure on the legislative, but also a mechanism for overcoming disputes within the legislative.

Additionally, dissolution of Parliament can be considered a necessary procedure when there is no longer a relationship of trust between the Government and Parlia­ment and cooperation has become impossible.^[589]

9.1.2.4 Which Limitations and Restrictions Should Be Provided?

Furthermore, a dissolution may be bound to a multitude of limitations and restrictions. In order to ensure an even distribution of political forces, it is advisable to restrict the exercise of the right of dissolution. The clause can include a temporal limitation providing periods of time where the dissolution is prohibited. This exclu­sion may, for example, affect certain periods shortly before the regular end of the Government or Head of State’s term of office. In the same way, after the dissolution of Parliament and new elections have already taken place, a provision in the constitution can prevent the new Parliament from being dissolved again for exactly the same reason.

It is also possible to restrict the frequency of the exercise for the same reason or to exclude the right to dissolution in specific circumstances such as time of war, state of emergency or state of siege (Table 9.3).

The existence of a dissolution mechanism in the constitution certainly contributes to finding a solution to deadlocked conflicts between various constitutional forces. However, it must be noted that an unrestricted right of dissolution can pose a threat to the democratic system. For this reason, it is better to limit the right to dissolution by constitutional requirements. These control mechanisms are intended to prevent unilateral exploitation and to safeguard the political stability.

Parliament’s dissolution should be an emergency solution in the constitutional system, which only in exceptional cases would allow the temporary suspension of legislative power. In order to preserve this exceptional character, the dissolution clause should exactly determine in which circumstances and with which restrictions a dissolution can take place. This applies especially in order to avoid abuse and to comply with the principle of separation of powers. Notably in exceptional situations,^[590] such as state of siege or state of emergency, it is important to exclude the right of dissolution in order to protect fundamental democratic principles and prevent an autocratic system.

9.1.2.5 Which Constitutional Organ(s) Should Be Involved

in the Dissolution?

In addition to the possibility of the Head of State exercising sole power of decision, it is common practice to involve a third power in the dissolution process. This involvement can vary from symbolic consultation to indispensable agreement as a mandatory prerequisite for dissolution (Table 9.4).

In order to maintain a political dialogue between the different institutions, a mixed approach should be taken. The right of dissolution as an extreme encroach­ment on the principle of the separation of powers should not belong to a single constitutional institution. Rather, there should be constitutional provisions requiring the inclusion of a third power. Unless there is an immediate danger to the misfunctioning of the country, a condition which ought to pass high obstacles as Parliament in general is an institution of considerable procedure and not of extreme urgency. Incorporating a third power such as consultation of the Prime Minister or the President of the House of Parliament is a procedural obstacle which may help to find a solution to the conflict and avoid dissolution of Parliament. It also constitutes a mechanism capable of protecting Parliament against unreasonable decisions by the Head of State. Even if the third force should ultimately not be able to prevent dissolution, the involvement nevertheless forms a basis for discussion and communication.

However, in the case of a political deadlock, where decisions must be taken urgently, excessive requirements for the exercise of the right of dissolution can seriously affect political functioning. This is for example the case if the constitution

Table 9.3 | | Limitations of the right to dissolve Parliament

Table 9.3 (continued)

provides that dissolution of Parliament requires a national referendum which will be held several months after the proposal of dissolution (e.g. Latvia, art. 48).

It is therefore advisable to find a compromise which respects the effective functioning of the country and at the same time protects Parliament against unrea­sonable decisions by the Head of State.

Table 9.4 I I Third power involvement during dissolution

9.2