Qualification and Oath

7.1.1 Overview of the Presidential Qualifications and Oath

7.1.1.1 Definitions

This chapter focuses on qualifications and requirements to become President of a country. In this chapter, the term “president” is used for any kind of Head of state; it includes the Head of State of a monarchy (king, queen, monarch etc.) as well as the Head of State of a republic (president).

It is important to consider the differences between a monarchy and a republic when discussing presidential qualifications. Whereas in a hereditary monarchy the monarch is born into office (other than in electoral monarchies such as the Holy Roman Empire), a President of a republic must generally be elected or appointed to take office. Therefore, primarily the qualifications and requirements to become President of a republic are discussed in this chapter as the qualifications to become the monarch are predetermined by descent.

Secondly, this chapter reviews the presidential oath. To take office, presidents are inaugurated. This procedure usually includes the new President to take an oath of

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W. Babeck (*)

Sydney, Australia

e-mail: wbabeck@writingconstitutions.com

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office. An oath of office contains a statement of loyalty to a constitution. In a monarchy, handing over power is followed by a coronation which also includes taking the coronation oath.

7.1.1.2 Historical Context

The constitution of the United States of America stated three requirements to become president, when it came into force in 1789: firstly, the President had to be at least 35 years old, secondly, he had to be born in the United States of America and thirdly, he had to be a resident for at least 14 years.^[416] Those requirements in the constitution of the United States of America have not been amended until today.

In monarchies, succession to the throne has always been a question of descent. Women were often excluded from succession to the throne. As an example, the constitution of France from September 1791 excluded women from becoming king of the French Kingdom “on a permanent basis”.^[417] Nevertheless, one of the first female regnant back in history was Berenice III, who ruled as Queen of Egypt from 81 to 80 BC.^[418] Queen Elizabeth II. has in the meantime been one of the oldest monarchs in office.^[419]

7.1.1.3 Qualification Clause

The requirements to become President of a state play an important role in a constitution. The President is the representative of his country. The presidential office is a more or less powerful political office, depending on the political system.

A presidential qualification clause should encompass both requirements and restrictions to the presidential office. On the one hand, one important function of a presidential clause is to grant equal access to the office of president. Everyone should be able to be a part of politics and participate politically. Everyone should have a chance to get nominated for president, no matter what race, gender, origin or cultural and social background. On the other hand, the office of President has to be protected. The President of a country does not only have significant political powers but he or she also represents and leads his or her country and therefore carries a lot of responsibility for the country and its people. Hence, the presidential clause also has the function to restrict access. It is a national concern to ensure that only a person who fulfils some basic requirements can be president. Stating certain requirements to protect the presidential office is therefore necessary. However, those restrictions should not lead to a ruling of political or social elites.

The legal nature of the qualification clause can be classified as a mandatory clause as the presidential candidate has to fulfil the qualifications to run for office.

7.1.1.4 Oath

The oath of office is less significant. It forms part of the formal process of inaugura­tion and therefore constitutes a public act to welcome the new President to office. However, a constitution should always contain an oath as the wording of the oath contains the presidential duty to execute his office in accordance with the wording of the oath.

The legal character of a clause of oath can be classified as a declaratory norm. Usually, an oath is idiosyncratic and often contains cultural elements of a country.

7.1.1.5 Potential of Misuse

Presidential qualification clauses should not be misused to prevent certain (groups of) people to run for the office. Therefore it is recommended to keep presidential qualifications neutral and not to link them to personal or private characteristics, such as religious beliefs or sexual bias. History is full of examples of how to manipulate presidential qualifications.^[420]

Another potential danger is that some presidential qualifications are governed by ordinary law. Usually, amendments of ordinary law do not require a qualified majority of the Parliament but only a simple majority. Therefore, ordinary law can be amended more easily than constitutional law. However, it is not possible and not recommended to govern every detail on constitutional level.

In particular authoritarian regimes^[421] are being carefully watched.^[422] Possible solutions and limitations to prevent misuse will now be outlined.

Fig.

7.1.2 Structural Approach and Guiding Questions

and Qualifications

Qualifications can be divided into personal and formal qualifications. An age limit is a formal qualification as the candidate cannot influence such. A personal qualifica­tion could be a certain level of education or religious beliefs.

Several presidential qualifications should be considered when drafting a presi­dential qualification clause, see Fig. 7.1.

7.1.2.1 Age Restrictions

A constitution that provided an upper age limit was the constitution of Uganda. According to their constitution, the age limit for the Ugandan President used to be 75 years of age.^[423] In December 2017 the Ugandan Parliament voted in favour of an amendment, lifting the presidential upper age limit.^[424] The amendment was highly controversial, as it straightened the way for President Museveni to become a “lifelong” president. Mr Museveni was already in his fifth presidential term.^[425] It is criticized that the vote was more about Museveni’s ego and appetite for power than about age. As Museveni was 73 years of age he could have again stood for President in the 2021 election.

Table 7.1 shows the age requirements of different countries for presidents.

In conclusion it is advisable for a constitution to state a minimum age for presidential candidates. To set an optimal minimal age, the political system should be considered. However, the minimum age ought to be 18 years of age, as for most countries this is the legal age. Moreover, taking into consideration the amount of responsibilities and the high level of reputation the presidential office is regarded with, a high level of life experience and maturity is required for the presidential office. Therefore, the recommendation for a minimum age of President is 35 years.

Table 7.1 | | Age requirements of Presidents

It is worth considering an upper age limit for a constitution. As the above example of Uganda indicates, presidents that are in power sometimes try to maintain that power endlessly. In Africa, the average age of presidents is around 70 years.^[426] This makes it difficult to bring political changes to a country. Also, the general abilities start decreasing once a person has reached a certain age. The average legal age for retirement in Europe is 65 years.^[427] It should be considered to have a “retirement age” for presidential candidates as well. 80 years of age could serve as a maximum age for a presidential candidate as the general physical and cognitive abilities usually fade year by year, albeit some countries would consider such a threshold as a discrimina­tion based on age.

One example for a relatively young President is Theodore Roosevelt, former President of the United States of America. He is the youngest President in American history, being 42 years of age when he became president. Emanuelle Macron was declared President of France at the age of 39. Everywhere in the world it is difficult for young people to obtain high level political positions.

The abuse of political power can also be prevented by setting limits for the re-election of presidents.^[428]

7.1.2.2 Citizenship

7.1.2.2.1 Citizenship Requirements

Citizenship is a matter of ordinary law. One way to become a citizen of a state is by birth, also referred to as “birthright citizenship” or “ius soli”.^[429] Anyone born within the territory of a state automatically acquires citizenship. This rule is common across the Americas. In the United States of America, the Fourteenth Amendment defines that “all persons born [...] in the United States [...] are citizens of the United States [...]”.^[430]

Another way to become a citizen is by right of blood, also referred to as “ius sanguinis”. Most countries in Europe, Asia, Africa and Oceania grant citizenship in that way. It means that citizenship is inherited through parents and not granted by the place of birth.^[431]

Finally, citizenship can be granted via naturalization, by an act issued by the country. The legal requirements depend on the country’s nationality laws.

A further important aspect about citizenship is dual citizenship. Some nationality laws do not allow for dual citizenship. Dual citizenship could question the loyalty to one country or the other. In Austria, Iran and Japan, one will lose citizenship when he or she voluntarily accepts a foreign citizenship.^[432] Most European countries however accept dual citizenship.^[433]

Citizenship plays an important role with respect to presidential qualifications. The purpose of such restriction is to ensure a special bond between the presidential candidate and the country and to strengthen the national loyalty of the future president.

Table 7.2 sets out the different national requirements. Some constitutions not only require citizenship but moreover only admit natural-born citizens. Others do not admit presidential candidates with dual citizenship.

Table 7.2 | | Citizenship requirements for presidential candidates

7.1.2.2.2 Controversy "Natural-Born"

As the citizenship Table 7.2 demonstrates, some countries require their presidential candidate to be a natural-born or native-born citizen. To fulfil this requirement, one has to be born within the territory of the country. This is an additional requirement to citizenship. It is a formal requirement as the candidate has no impact on his or her place of birth.

The United States of America have had several controversies about the require­ment of natural birth. The issue arises, as the term “natural-born” was neither defined by the Founding Fathers of the constitution nor by a decision of the Supreme Court. Most legal experts in the USA interpret the term “natural-born” as meaning born in the US or having one parent who is a US citizen.^[434] The second interpretation is much broader, whereas the first interpretation is more restrictive. When John McCain ran for office as presidential candidate, there was a discussion because McCain was born in Panama on a military basis the USA held sovereignty over. To end the discussion, the US Senate voted for a nonbinding resolution recognizing that McCain is a natural born citizen.^[435] When Barack Obama became presidential candidate in 2008, a conspiratorial movement called “Birther” claimed that Barack Obama could not run for presidency as he was allegedly born in Kenya and not on Hawaii. When Ted Cruz became presidential nominee for the Republicans in 2016, the issue arose as Cruz was born in Calgary, Canada. The discussion stopped because Cruz did not become president. As the controversy in the USA demonstrates, a precise definition, ideally at constitutional level would end manoeuvring and conflicts discussions.

The requirement of natural birth excludes citizens from becoming President that were born outside the national territory. This requirement is highly selective. The benefits of such a clause are negligible. The function of the requirement of citizen­ship can also be achieved by excluding foreign citizens only. The requirement of natural birth goes beyond the necessary and is therefore not recommended.

7.1.2.2.3 Term Citizenship “By Origin”

As shown in the Table 7.2, some countries require the presidential candidate to be of national “origin”. In Angola, citizenship by origin is granted to anyone who is the “child of a father or mother with Angolan nationality, born in Angola or abroad”.^[436] To be of national origin, one of the parents of the candidate has to be a citizen; the place of birth does not matter. The Algerian constitution does not define the term “native Algerian”, but governs that citizenship is defined by an act of parliament.^[437] The Algerian Nationality Law states that anyone is a native Algerian, whose mother or father is Algerian.^[438] In Albania, everyone who was born of at least one parent with Albanian citizenship is an Albanian citizen by birth.^[439]

These requirements are easier to fulfil than the requirement of natural birth. It is still restrictive to request a candidate’s parents to hold a certain citizenship. It prevents all people from becoming a presidential candidate who attained citizenship via naturalization. Such a restriction is not advisable. A constitution should not request a certain type of citizenship for the presidential candidate. Any kind of citizenship should be sufficient since origin or place of birth are facts that a person has no impact on. Additionally, federal nationality laws contain sufficient restrictions for foreign citizens to gain citizenship. Everyone who gains citizenship has passed the legal requirements and is therefore entitled to be a citizen.

7.1.2.2.4 Citizenship Requirements for Relatives

Some countries even regulate beyond the above listed requirements. Their constitutions do not only set strict requirements for the presidential candidate, but also for his or her relatives (Table 7.3).

The listed constitutions require both of the parents of the presidential candidate to be a holder of the national citizenship. Those requirements make it harder to find a suitable candidate and impossible for people with a different national background to run for presidency. In Algeria, the requirements also have an effect on the personal

Table 7.3 | | Citizenship requirements for relatives of presidential candidates

life of the potential candidate as their partner has to be Algerian as well. Such a restriction is not recommended as it is random and very selective. But also the requirement of having parents with national citizenship is too restrictive. Any requirement that goes beyond the person of the presidential candidate is not recommended.

7.1.2.3 Residence

Residence within the territory of the country where a candidate runs for presidential office for is another qualification to consider.

Most countries require the presidential candidate to having resided within the territory prior to the election or candidature for a certain time period. This time period differs from country to country, as Table 7.4 sets out.

The aspect of residence is often misused by countries. By depriving a presidential candidate from residence in the country, e.g. by cancelling the candidate’s passport, the candidate could be excluded from the election. In the exampled outlined in the table this would e.g. be possible in Argentina, Armenia, Mexico and the Philippines as all these provisions require a presence in the year preceding the election. It is instead recommended to consider a long period of time during which the presidential candidate has spent some years in the country, such as Singapore. Otherwise it is too easy to ban the presidential candidate. A further benefit of such rule is that it allows a member of a Government in exile to run for the presidency. A requirement to have spent some period of time in the country in the past prevents candidates from becoming President who have just recently entered the country and are not familiar with the country-specific characteristics.

A residential requirement strengthens the bond between the presidential candidate and the country. Residing in a country allows familiarizing with the current political and social problems and issues. Residence within the territory of the country ensures that the candidate is both socially included and familiar with the country-specific way of living. In modern times it is however easily possible to stay very well informed about a country’s affairs with electronic media from abroad.

Generally it is recommended to foresee precise wording in the constitution which is not subject to alteration by the Government of the day.

7.1.2.4 Right to Vote and Eligibility

Certain civil rights are often required for a presidential candidate. That general term usually refers to the (active) right to vote and the eligibility (passive right to vote).

Table 7.4 | | Residential requirements for presidential candidates

The German constitution requires that the President is “entitled to vote in Bundestag elections”^[440] (apart from other presidential qualifications). Entitled to vote in Bundestag elections are all persons that have “attained the age of eighteen”.^[441] The constitution refers to a federal law that regulates the details of the right to vote in Bundestag elections.^[442] This federal law is the Federal Election Code which regulates the right to vote in detail in paragraph 12. In some constitutions, this requirement is also referred to as “full civil rights” or “full political rights” (Table 7.5).

The right to vote as a presidential qualification is a widespread and rather uncontroversial feature in constitutions, which is safe to recommend. However, the exact definition of the term “civil” or “political rights” or the right to vote is often governed by national laws that have a lower norm hierarchy than the constitution. The right to vote is often linked to citizenship, residence and age.^[443] Those

Table 7.5 ? Right to vote of presidential candidates

requirements were already discussed in Sects. 7.1.2.1 and 7.1.2.2 of this chapter. Therefore, the right to vote does not necessarily need any repetition in a model clause for presidential qualifications. The counterpart the eligibility, is also defined by national laws. A citizen is usually eligible, when he or she has passed a certain age and holds citizenship.^[444]

Only in exceptional cases, the right to vote and eligibility are excluded. In accordance with German law for example, a citizen loses his right to vote and thus his eligibility (a) subsequently to a judgement, (b) if he or she is under legal guardiancy or (c) if he or she is in psychiatry in accordance with criminal law.^[445] Since the right to vote and eligibility are only non-existing in exceptional cases, these aspects should be considered as incompatibilities. This aspect will be further discussed under Sect. 7.1.2.6 in this chapter.

It is therefore optional to list civil rights in a constitution as a positive presidential requirement. The other option would be to set it out as an incompatibility if a person is ineligible or lost his or her right to vote.

7.1.2.5 Education and Religion

7.1.2.5.1 An Issue in Poor and Religious Countries

Especially in African states it has been discussed whether a presidential candidate requires a certain level of higher education or not. When Jacob Zuma became President of South Africa in 2009, it was criticized that he does not have any formal education and was thus not fit to rule. In one essay, Zuma was compared to other leaders of the BRICS (Brazil, Russia, India, China, South Africa) nations who all have a formal education.^[446]

In that context, it should be mentioned that the presidents of the leading nations in the world are often highly educated. Barack Obama, former US president, graduated from Harvard Law School. Emmanuel Macron, current President of France, graduated from Sciences Po, a highly selective French university. Vladimir Putin, the current Russian president, has a law degree from Saint Petersburg State Univer­sity. It would be hard in Europe to find a nation’s leader without a higher education.

Table 7.6 | | Educational and religious requirements for presidential candidates

^a Art. 28, Constitution of Senegal 2001 (rev. 2009)

^b Constitution of Singapore 1963 (Amendment) Act 2016, No. 28 of 2016, amendment of article 19; it requires that the candidate must have held office for no less than 3 years as (a) Minister Chief Justice, Speaker, Attorney-General, Chairman of the Public Service Commission, Auditor-General, Account-General or Permanent Secretary or (b) chairman of the board of directors or chief executive officer of a company incorporated or registered under the Companies Act with a paid- up capital of at least $100 million or in any similar position of seniority and responsibility in any other organisation or department of equivalent size or complexity in the public or private sector, in accordance with Art. 19 (2) (g), Constitution of Singapore 1963 (rev. 2010)

Another aspect is religion. Especially in Muslim nations that are often not secular, this aspect forms an entry barrier of who can become president.

Table 7.6 shows the different national requirements concerning education and religion.

Singapore sets very strict standards for its president. As set out in the respective table, the constitution contains a high number of detailed presidential qualifications, exceeding the list of presidential qualifications in most other constitutions. To give an example, the constitution states that the President must satisfy “the Presidential Elections Committee that he is a person of integrity, good character and reputa­tion”^[447] and “satisfy the “public sector service requirement in clause (3) or the private sector service requirement in clause (4)”.^[448] To fulfil the public sector requirements, the candidate must have held office as Minister Chief Justice, Speaker, Attorney­General, Chairman of the Public Service Commission, Auditor-General, Account­General or Permanent Secretary or such for a period of no less than 3 years.^[449] To fulfil the private sector requirements, they must have served as chairman of the board of directors or chief executive officer of a company incorporated or registered under the Companies Act with a paid-up capital of at least $100 million or in any similar position of seniority and responsibility in any other organisation or department of equivalent size or complexity in the public or private sector for not less than 3 years.^[450] The public and private sector requirement was adopted to ensure the President has the “technical competence and expertise to discharge the functions and exercise the powers of the Presidency appropriate and effectively”.^[451] In the opinion of the Constitutional Commission, stricter requirements would “temper any politici­zation of the Presidential office and of the election process”. They would “likely reduce the prospect that candidates will target their campaigns at their opponent’s character and qualifications, since each candidate who qualifies would have satisfied the PEC (Presidential Elections Committee) that they possess those traits”.^[452]

However, such restrictions make it hard or even impossible to grant equal access to political positions. They lead to a Government of the established high class and the highly educated elite. Many Singaporeans, especially from the workers class, are disqualified to run for presidency. Basically, the PEC decides who can run for president.

Iran is an example for a country that chooses his President depending on his religious qualities. The religious elites in Iran have in conclusion a very strong impact on politics and are automatically involved in politics. A President with no religion or another religious belief could never rule.

7.1.2.5.2 Recommendation for a Democratic Society

For both aspects, religion and education, it has to be considered, that these aspects affect countries that are defined by low educational standards, poverty, social and religious issues and state religion.

It is not recommended to include religious aspects as requirements to become president. Religion is a highly personal matter. In a modern democratic state, religion should not be a crucial factor for presidency.

The aspect of a certain educational standard can be advisory to include in a constitution. The decision of including this aspect or not depends on the educational standards within the country. Most western countries have a high educational standard and a low rate of an-alphabets. But for countries with high illiterate rates it is recommended to include a clause such as in the constitution of the Philippines or Senegal to ensure a minimum standard of education. However, the standard should not be set too high as in the Turkish constitution, for example. This would enable the higher class to rule and maintain power and restrict equal access to the presidential office. A minimum standard as the ability to read write and speak the national language is crucial to fulfil the presidential duties and lead the country.

7.1.2.6 Incompatibilities

The above-mentioned qualifications can all be classified as positive qualifications or requirements to become presidents. Two main exclusive factors are also to be considered:

7.1.2.6.1 Ineligibility

One exclusive factor that was already mentioned under Sect. 2.1.4 is ineligibility. The conditions of ineligibility are usually governed by ordinary laws that are ranked below the constitution.^[453] One becomes ineligible usually because of a heavy crimi­nal conviction, including crimes against the country,^[454] or lack of legal competence.

Ineligibility should be included in a clause for presidential qualifications as an exclusive factor. This is strongly recommended as anyone who is not eligible has lost eligibility for a good reason. This reason for exclusion can also be included in a constitution by requiring the presidential candidate to have all political tights or the right to vote (above, Sect. 2.1.4).

It has to be considered that the factor can also be prone to misuse. As ineligibility as well as eligibility are usually governed by ordinary law ranked below the constitution, these codes can more easily be amended prior to an election to prevent an unpopular candidate from becoming president.

7.1.2.6.2 Other Reasons for Incompatibility

It is highly important to ensure the separation of powers and to avoid any misuse of power of the presidential office. Therefore, there are some positions and offices that are deemed incompatible with the presidential office (Table 7.7).

The reasons for incompatibility have to be considered in regard to the political system of a country. In parliamentary systems, the President must not be member of

Table 7.7 | | Incompatibility of presidential candidates

the Government or any executive body. One good example for that is India. In presidential systems reasonable restrictions equally prevail: To reduce misuse of the powers of the presidential office and to guarantee the independence of jurisdiction, the President must not be a member of the judicative. Secondly, the President should not hold any other office of profit, neither in the service of the country nor in a commercial office and must renounce these activities when elected. Thirdly, the aspect of membership in a political party is of importance. In some countries, membership in a political party is not allowed, e.g. in Singapore. In most countries, independent candidates for political offices are rare, as the support of the party is usually required to be competitive. Generally, it is not recommended to prohibit membership in a political party for presidential candidates, however once elected the President should renounce membership to avoid any conflict of interest.

It is important to limit the powers and competencies of the President and ensure a system of checks and balances.^[455]

7.1.2.7 Possible Solutions to Prevent Misuse and Negative List

Misuse of power and equal access to the presidential office are vital for the political system of a democratic society.

This negative list of points of reference can be used when drafting a presidential qualification clause. The list contains points of reference that should not be men­tioned in a constitution as presidential qualifications as they are linked to factors that are strictly personal and sensitive:

• Religion, religious belief, religious practice

• Sexual bias

• Gender

• Race, origin

It should be considered to integrate a subjective right of action for the candidate in case that the negative list is violated. The right of action should contain the possibility to submit a claim to the highest constitutional court of the country. In Europe, it could be considered to submit such claim to the European Court of Human Rights.

7.1.2.8 Clause to Restrict Amendments

Moreover, a clause that prohibits the amendment of a presidential qualification clause prior to elections can be considered as political manoeuvring is often used by rulers afraid of electoral defeat to bar the admission of presidential candidate. Such a clause could either restrict amendments prior to elections at all (option 1) or require a qualified majority (e.g. two thirds of parliament) to make an amendment (option 2). For option 1, amendments should be restricted 2 years prior to the next election. The best way would be a combination of both (option 3). This clause would restrict amendments 2 years prior to elections in general. Outside this time period it would allow amendments to proceed only with a qualified majority. A qualified majority should not be less than two thirds of the competent organ.

7.1.3 Oath

Drafting an oath of office clause is less complex compared to drafting a clause for presidential qualifications and fewer points need to be considered. The main aspect to consider is the wording of the form of oath (Table 7.8).

The oath should refer to defending and preserving the national constitution, the national laws and the wellbeing of the people. Whether the term “affirm” or “swear” is used often depends on the religious addition. The term “swear” is often used for

Table 7.8 | | Wording of presidential oath

religious oaths.^[456] “Affirm” is the neutral term and is thus used when the candidate does not want to take the oath with religious affirmation.^[457]

A religious addition such as “help me God” should be optional, not mandatory. Freedom of religion is a fundamental human right. Any restrictions to it are not recommended for a constitution.

For any breach of the oath and consequences following such, see chapter cover­ing the impeachment.^[458]

7.2