Governmental Leadership and Organisation
Beyond the governmental functions and competences, the role of the leader of the Government as collegiate organ and its composition requires a particular mention. This is not only relevant if the political system adheres to the parliamentary model but also for semi-presidential systems where the competences between President and Government are divided (e.g.
art. 20 ss French constitution). Government is a composite constitutional organ. Its components may additionally attain constitutional status (Prime Minister/Minister-President/Chancellor, Cabinet, Minister/Sec- retary of State, Undersecretaries or Councils).[632]The role of the Prime Minister/Minister-President/Chancellor as Head of the collegiate organ “Cabinet” is of primary importance in parliamentary governments backed by a strong majority in Parliament where—as in the British western parliamentary tradition—the leader of the parliamentary majority is usually nominated by the Head of State to serve as Prime Minister/Minister-President. But even in coalition governments consisting of two or more coalition parties the leader of Government has a predominant role in negotiating the governmental program, giving general policy directives and guidelines as well as representing the Government in foreign affairs. The role of the Head of Government may be attenuated by the inherent necessity for consensus based on coalition agreements but the constitution can assign him/her a primordial role of leadership (“primus inter pares”) among the ministers or cabinet.[633]
As the textually entrenched principles of organisation and composition of the Government as a collegiate organ rarely reflect the constitutional reality in toto, only some indications on the role of the Prime Minister/Chancellor and the collegial/ departemental principle as outlined below may suffice.
10.2.1 Prime Minister/Minister-President/Chancellor
The chairperson of the Government assumes a leading role in any parliamentary democracy. However, this predominant role is not confined to purely parliamentary governments.[634]
In Germany for example the elevated position of the Federal Chancellor (“Bundeskanzler”') is embedded in the Basic Law (art. 65 sent 1) whereas the departmental principle and collegiate principle (art. 65 sent 2 and 3) are vested in a separate provision against this.[635] A similar elevated position in Italy is assigned to the Minister-President (“Presidente del Consiglio”) where the leadership and coordination role are formulated in the constitutional text (art. 95).[636] Such an elevated position is also recognizable in Spain for the President of Government (“Presidente del Gobierno”: art. 98 par. 2), Baltic states (Lithuania: art. 96 par. 3; Latvia: art. 56; Estonia: § 93) or Middle-Eastern European States (Czech Republic: art. 76, 77; Poland art. 148, 149; Hungary: art. 18. But even if the role of the Head of Government is not expressly pronounced or regulated in the constitutional text as in some Nordic states (Denmark, Norway and Sweden) or Benelux countries (Belgium, Netherlands and Luxemburg), the leading role of the Minister-Presidents arises out of their function of presiding the Council of ministers even if they may formally not be superior to their cabinet colleagues.[637]
Comparable textual formulations may be found in other parliamentary regimes (e.g. Japan: art. 65-68) or more detailed in the British tradition (Israel: Basic Law Government, 1992).
As mentioned above, the pre-eminent role of the leader of Government is not restricted to parliamentary regimes but extends in particular to semi-presidential regimes. The French constitution 1958 explicitly emphasizes the leading role vis a vis the cabinet[638] besides regulatory powers (regulations deliberated in Council of Ministers and simple regulations: art.
13, 21) and competences of proposal (dissolution of Parliament and budget). Because of the colleagiate principle, the Prime Minister of France can therefore not resign, but only declare the resignation of the Government. (art. 8 I 2)[639] More detailed regulations are also found e.g. in Portugal (art. 182),[640] Russia (art. 110 par. 1), South Korea (art. 86) and several Francophone African States.[641]10.2.2 Principles of Organisation: Departmental-Collegiate Principle
Governmental organisation mainly follows two principles: (a) The responsibility of the single minister/state secretary of the “council of ministers” for his ministry/ department and (b) the collective responsibility of the whole Government (council of ministers/cabinet). The “responsibility” of the ministerial activity for the department vis a vis the Prime Minister or Government and the responsibility of the whole Government as a collegiate body has to be discerned from the political responsibility (“accountability”) versus Parliament or the Head of state. “Accountability” means the subjection to and control by another organ being directly legitimated by the will of the people, either by democratic elections to a representative assembly (parliament) or by direct elections of the President.[642] In parliamentary democracies the leader of Government (but eventually also single ministers) are directly accountable to parliament[643]: motion of confidence, motion of no confidence, constructive vote of no confidence, interpellation and inquisitorial rights. In semi-presidential systems accountability occurs versus the President who can nominate and dismiss the Head of Government but also versus Parliament to gain and hold confidence of the parliamentarian majority for the political and legislative agenda of Government.[644]
As accountability is being discussed in the next chapters (10.3. ss.), the following remarks only concern the governmental organisation.
The constitutional texts usually refer to the composition of the Government (Prime Minister, Minister-President, cabinet, minister and secretaries of state) but less frequently to the internal division of responsibilities (departemental-collegiate principle, chancellor or prime-ministerial prerogative).
The cabinet principle and therefore cabinet loyalty and unanimous decision making[645] played an overwhelming role in British governmental tradition where the cabinet can be regarded as the central steering mechanism of the Government. The characterization of the Government as parliamentary government, cabinet government or prime ministerial government largely depends on the personality of the Prime Minister.[646] Government in the United Kingdom consists of cabinet ministers and other ministers. The minister (or state secretary) is politically responsible (accountable) to -Parliament. The transfer of functions between departments is allowed by the “Ministers of Crown Act” (1975).
The underlying tension between the departmental responsibility and the cabinet (collegiate) principle is reflected in the German Basic Law where the minister directs his ministry on his own responsibility within the guidelines of the Federal Chancellor (art. 65 par. 3 BL); the collegial principle is only required to solve disputes or in special cases.[647] Similarly, in Austria the departmental principle is balanced against the principle of collegiality (art. 77 B-VG); certain decisions pertain to the collegial organ.[648] In Italy the collegial principle arises out of the competences allocated to the Council of Ministers (“consiglio dei ministri”) and the ministerial responsibility is relevant for the actions taken within his competences (art. 95 par. 1 and 2).[649] In Spain the departmental principle is mentioned along with the leadership principle of the Minister-President (art. 98 par. 2) with the cabinet principle being embedded in ordinary statute.[650] The tension between departmental and collegiate principle is also evident in the Netherlands (art.
45 par. 3; 46), Portugal (art. 200, 201) and Greece (art. 82 par. 1; 83 par. 1; 85). A well-balanced solution between the prime ministerial principle and the departmental principle was vested in the Hungarian Const 2011 (art. 18).[651]In France the departmental principle is not expressly articulated but arises indirectly from the necessity of countersignature of the relevant acts of the Prime Minister (“contreseing”: art. 22). There are ministers with departmental responsibility and ministers “sans portefeuille”. Secretaries of state are the deputies for the minister and do not participate in the weekly council of ministers (“Conseil des ministres”). Decrees decided in the Council of ministers (“decrets deliberes en conseil des ministres”) to be adopted by the President with the countersignature of the Prime Minister (art. 13) differ from regulations of the Prime Minister to be countersigned by the respective minister (art. 21, 22).[652] In Poland the balance between the cabinet principle (Council of ministers presided by the MinisterPresident: art. 146, 147), departmental principle (art. 149) and the leadership principle of the Minister-President with own regulatory powers (art. 148) appears to be well adjusted.
In several semi-presidential systems in Latin America the organisation of Government appears to be follow the prime ministerial-, cabinet- and departmental principle (Argentina: art. 100; Bolivia: art. 165 par. 2; Brazil: art. 87; Chile: art. 33; Peru: art. 119, 125), the balance of which can only be assessed by a closer look into the governmental practice.[653]
In Asia a functional differentiation between the leader of the Government and the cabinet and his ministers prevails. In Asian parliamentary systems[654] is only vaguely recognisable in India (art. 74 par. 1) and Malaysia (art. 43: cabinet advising the President; 43A and B: deputy ministers, parliamentary and political secretaries). In Thailand’s constitution only the “collective responsibility” (accountability) versus the Parliament is indicated (Sec.
158 par. 1). In some semi-presidential systems, the cabinet principle is mentioned (e.g. Taiwan: art. 54, 58 par. 2; Pakistan: Sec. 91 par. 1 besides the prime ministerial principle in Sec. 90 par. 1, 2). In Indonesia the responsibility of each minister is mentioned (art. 17 par. 3). In South Korea the leading role of the Prime Minister is accentuated besides the President who chairs the council of ministers (“state council”) but also the Prime Minister and the executive ministries enjoy regulatory powers (art. 95). Generally, the collective responsibility (“accountability”) of the Government and/or ministers is orientated versus the Parliament which mirrors the dependence of the Government from the President and Parliament at the same time.In African Francophone states the semi-presidential systems follow largely the French model with enumerated competences of the Head of government, countersignature of governmental acts and own regulatory powers (e.g. Morocco: art. 87-90, 93; Burkina Faso: art. 63, 65, 68;[655] Ivory Coast: art. 81-83; Gabon: art. 28, 31; Togo: art. 78-80; Tunisia: art. 71, 91-94). However, there are some exceptions where the President is Head of a “monistic executive” (e.g. Benin: art. 54 par. 4; 55).
In other semi-presidential systems, the departmental (ministerial) principle is set against the prime ministerial principle (e.g. Egypt: art. 163 par. 2; art. 167-168; Namibia: art. 40 lit. a-k; art. 41 referring to the accountability versus the President and parliament).
Mixed systems like Ethiopia or South Africa (with the President as Head of a monistic executive: Sec. 83)[656] either extensively enumerate the functions and tasks of Government (e.g. art. 51 no 1-21 Ethiop.Const) or indicate the ministerial and cabinet principle (Sec. 91, 92 SAConst).
10.3