Vote of No Confidence Clause
10.5.1 Overview of the Vote of No Confidence Clause
10.5.1.1 Definition
A vote of no confidence[720] is a parliamentary vote reflecting that the majority does not support the policy of a Government, head of Government or an individual minister.
It demonstrates that the elected Parliament does no longer trust one or more members of the appointed Government. The vote of no confidence is often encountered in two variations:The ordinary vote of no confidence merely aims to remove the current Government and does not require Parliament to name a replacement.
In contrast, the constructive vote of no confidence enables Parliament to remove the Government only if a majority agrees on an alternative head of Government who replaces the previous leader.
10.5.1.2 Purpose and Function of the Rule
Similar to the vote of confidence, the vote of no confidence is usually only prominent in parliamentary systems where Government is dependent on Parliament and accountable to Parliament. Whereas a vote of confidence is initiated by the heads of Government themselves (usually in order to discipline dissident parliamentarians), the vote of no confidence is initiated by Parliament in order to remove the Government. If a constitution contains both instruments—which is not often the case (see Table 10.12)—the possibility of a vote of no confidence often leads to the pre-emptive use of the vote of confidence: the head of Government reacts to political pressure by inducing a vote of confidence.
The significance of the vote of no confidence depends on the system of government that is in place. Whereas the no confidence vote is one of the most important control mechanisms in parliamentary systems, the instrument is rarely used and only of symbolic character in presidential systems. First, presidential systems often do not
Table 10.12 | Legal provisions of a vote of no confidence
| Legal nature | Clause | Countries |
| No existence of a vote of no confidence | E.g. Benin, Brazil, Chile, China, Cuba, Dominican Republic, Ecuador, El Salvador, Eritrea, Ghana, Guatemala, Guinea, Guinea-Bissau, Guyana, Honduras, North Korea, Libya, Malawi, Mexico, Nicaragua, Nigeria, Oman, Philippines, Qatar, Saudi Arabia, Sierra Leone, Switzerland, Turkmenistan, United Arab Emirates, USA, Uzbekistan, Zambia (often non-parliamentarian systems) | |
| Existence of a vote of no confidence | Constitution | E.g. Germany, Spain, Greece, Lebanon, France, Pakistan etc. |
have Prime Minsiters leading the cabinet even though there are of course exeptions.[721] Secondly, Presidents themselves are subject to another procedure: a President can unsually only be removed from office by impeachment. Contrary to a motion of no confidence, impeachment is reserved for criminal conduct or major ethical violations (for details see supra 9.2.1). In semi-presidential systems (e.g. in South Africa) the head of Government can also be subject of a vote of no confidence, as the head of Government is also responsible to parliament.
Motions of no confidence are more common in multi-party systems than in two-party democracies where party discipline usually prevents the majority party from a motion of no confidence.[722] Instances, in which a vote of no confidence was successful, however, are generally those in which the governing party’s scarce majority has been eliminated by by-elections or defections.[723]
The aim of a vote of no confidence is to achieve a swift removal or transition of Government. Therefore, time is a very important factor in the process (for details see below Sect. 10.5.2.4).
Further, the instrument is shaped by its inherent tension between ensuring stability and enabling Parliament to exercise its democratic control over Government. In order to ensure stability, passing a no confidence vote should not be too easy because this would lead to an abusive and irresponsible use of the instru- ment.[724] In turn, democratic control can only be maintained if the process is not too difficult either.
Attempts to make the procedure more difficult or nearly impossible to succeed should always be examined critically as officeholders often intend to undermine democratic control under the pretext of securing political stability.10.5.1.3 Norm Addressee
As the vote of no confidence is a vote that allows Parliament to withdraw confidence from the head of Government, the norm addresses members of Parliament or Parliament as a whole.
10.5.1.4 Legal Nature/Character
In some countries, such as Switzerland and Cyprus, neither a vote of confidence nor a vote of no confidence exists.[725]
To regulate this procedure only in ordinary law or to establish it by convention cannot be recommended because such an important instrument which can bring down the Government should be embedded in the constitution in detail (Table 10.12).
10.5.1.5 Historical Context
The roots of the vote of no confidence date back to the year 1782, when the British were defeated at Yorktown in the American Revolutionary War. For the first time, the Parliament of Great Britain voted that they “can no longer repose confidence in the present ministers”. After that, the leading Prime Minister Lord North successfully asked King George III to accept his resignation. It was the first recorded collective resignation of a Government in history. From then on, especially European countries such as the UK, the German Weimar Republic, and the French Fourth Republic implemented constitutional provisions providing for a no confidence motion.
During the time of the Weimar Republic, the vote of no confidence clause played a significant role in the destabilisation of the German state prior to the nationalsocialist takeover.[726] According to art. 54 of the constitution of the Weimar Republic, Parliament could remove the chancellor as well as any individual minister by passing a vote of no confidence. Presenting a successor who has a majority in Parliament was not a requirement.
Thus, the strong radical forces on the left and on the right could cooperate in overthrowing the Government without providing a viable alternative. This led to obstruction and destabilisation.As a reaction to those historical experiences, Germany modified the vote of no confidence clause in its basic law of 1949. In art. 67 of the German constitution, the so-called constructive vote of no confidence[727] was introduced which requires an immediate replacement by a new chancellor. The aim was to safeguard the state’s operability and avoid a power vacuum by ensuring that the Government would stay in office (as a minority Government[728]) until Parliament has agreed on an alternative.
| 1. | Initiation of the vote | f |
| 2. | Subject of the vote | f |
| 3. | Voting rule | f |
| 4. | Outcome | f |
Fig. 10.4 Procedure of a vote of no confidence
After Germany introduced the constructive vote of no confidence in 1949, the clause served as a role model for other countries.
Some recent examples include Austria which used the instrument of the no confidence vote e.g. on 27 May 2019 to dismiss Chancellor Sebastian Kurz after the chancellor’s right wing coalition partner was caught in the Ibiza affair[729] The Rumanian Parliament dismissed Prime Minsiter Dancila in November 2019 and her successor L. Orban also lost the confidence of the Rumanian Parliament in February 2020, but was then reconfirmed after forming a new cabinet. Prime Minister Sandu of Moldavia was dismissed in November 2019. Prime Minister Tsipras of Greece narrowly survived a vote of no confidence early in 2019. Prime Minister Conte of Italy avoided a vote of no confidence initiated by his right-wing coalition partner in August 2019 who wanted to outmanoeuvre him by resigning and was able to form a new coalition with the former opposition under the guidance of Italian President Mattarella.
It becomes obvious, that the vote of no confidence is a highly political instrument with an often uncertain outcome.10.5.1.6 Procedural Questions
The four procedural elements shown in Fig. 10.4 should be included in a vote of no confidence clause.
In general, vote of no confidence clauses deal with the right of initiation, the subject of the vote, the voting rule and the consequences.
10.5.1.7 Structural Approach and Guiding Questions
When drafting a vote of no confidence clause various questions must be answered, see Fig. 10.5.
| 1. | Who has the right to initiate a vote of no confidence? | Scope of empowerment | 4 |
| 2. | Who is subject to the vote of no confidence? | Material qualification | 4 |
| 3. | What are the procedural criteria of the vote? | Procedural qualification | 4 |
| 4. | What are the time limits of the vote? | Temporal qualification | 4 |
| 5. | How does third power intervention verify the vote of no confidence? | Third power involvement | 4 |
| 6. | What are the consequences of a vote of no confidence? | Outcome | 4 |
Fig. 10.5 Procedural questions for a vote of no confidence clause
10.5.2 Details of the Clause
10.5.2.1 How Is the Vote of No Confidence Initiated?
To initiate a vote of no confidence a certain majority is needed, see Table 10.13.
The majority required to initiate a vote of no confidence ranges from a single representative (Lebanon), to 1/10 (e.g.
France), an absolute number (Czech Republic, Poland) to 2/5 (Georgia) of the absolute number of members of the Parliament.The requirement of a certain number or proportion of parliamentarians to initiate a vote of no confidence ensures that the instrument is not used inflationary by very small minorities for the mere purpose of obstructing Parliament with motions that have no prospect of success. A very low absolute number or proportion of deputies does not prevent an inflationary use and is therefore not recommended.
However, introducing motions of no confidence can also serve as a tool for the opposition to voice their criticism and to ignite a debate about the Government’s work—regardless of the outcome of the actual vote of no confidence. Further, it is important to give the opposition a chance to convince a majority of Parliament of their motion. Therefore, the hurdle to initiate a vote of no confidence should not be too high either.
A requirement of 1/4 of parliamentarians seems to strike the right balance between excluding inflationary use and allowing the opposition to question the Government’s work in an effective way.
10.5.2.2 Who Is Subject to the Vote of No Confidence?
The vote of no confidence is either directed against Government as a whole, the head of Government (which usually entails the dismissal of the entire Government because of the ministers’ accountability to the head of Government), against an individual minister or in some instances even against subjects outside of Government, see Table 10.14.
10.5.2.2.1 A. Government as a Whole or the Head of Government
A vote of no confidence against Government as a whole is the most important and most common form of the no confidence vote. In systems of collective ministerial responsibility, a vote of no confidence against the head of Government has an
Table 10.13 I I Majority needed to initiate a vote of no confidence
| Nature/Main feature | Clause | Countries |
| Every Member of Parliament | Every Deputy has the absolute right to raise the question of no confidence in the Government during ordinary or extraordinary sessions. (art. 37, Lebanon) | E.g. Lebanon |
| Small minorities | 1/10 of the total members of MP | E.g. France (art. 49 No. 2), Spain (art. 113 No. 2), Haiti (At least 5 members of the two houses, art. 129-3) |
| Relative number of the total members | 1/5 of the total numbers of MP | E.g. Albania (art. 105 No. 1), Bulgaria (art. 89 No. 1), Estonia (art. 97 No. 2), Hungary (art. 39 No. 2), Pakistan (art. 95 No. 1), Greece (1/6, art. 38 No. 2), Nepal (1/4, art. 100 No. 4), Comoros (1/4, art. 28), Belarus (1/3, art. 97 No. 7), Central Africa Republic (1/3, art. 48), Georgia (2/5, art. 81 No. 1) |
| Total number of members | The Assembly of Deputies may debate proposed resolution of no confidence in the government only if it has been submitted in writing by at least fifty Deputies. (art. 72.2, Czech Republic) | Czech Republic (50 deputies, art. 72 No. 2), Poland (46 deputies or 69 deputies if the motion is directed against an individual minister (artt. 158, 159); there are 460 deputies in the Polish parliament) |
identical effect: With the vote against the head of Government, the minsters are removed as well. Not every constitution even distinguishes between the two forms.
10.5.2.2.2 B. Individual Ministers
At first sight, the possibility of a motion of no confidence against an individual minister seems to ensure a comprehensive democratic control of the Government by Parliament It might also strenghten the minister’s independence and interest of profiling.[730] However, ministers are generally chosen and supervised by the head of Government whom an individual minister is primarily responsible to. The choice of ministers should be considered as an internal affair within Government. Thus, the removal of an individual minister by Parliament is an interference which is problematic regarding the principle of separation of powers. In that context, the Venice Commission rightly criticised the new draft constitution of Iceland in 2013 which contained the possibility of a vote of no confidence against individual ministers. The Commission pointed out that the ministers would become subject to a double responsibility: they are accountable to Parliament and to the head of Government
Table 10.14 I I Subject of the vote of no confidence
| The Parliament against... | Clause | Countries |
| Head of government | ...members of Assembly are entitled to present for voting to the Assembly a motion of no confidence towards the incumbent Prime Minister... | E.g. Albania (art. 105), Argentinia (art. 101), South Korea (art. 63) |
| Individual minister only | The House of People, on the proposal of twenty percent of all its members, shall make inquiries from each Minister. If the explanations given are not satisfactory, the House of People shall consider the issue of a no-confidence vote. The no-confidence vote on a Minister shall be explicit, direct, as well as based on convincing reasons. | E.g. Bhutan, Colombia (art. 135 No. 9), South Sudan (art. 118 No. 1), Afghanistan (art. 92), Gambia (art. 75 No.1), Thailand (art. 158), Panama (art. 155 No. 7), Venezuela (art. 187 No. 10, art. 240, 246), Vietnam (art. 84) |
| Both head of government and individual ministers = government as a whole | E.g. Austria (art. 74 No. 1), Poland (art. 158, 159), Croatia (art. 115 No. 7), Estonia (art. 97 No. 1), Finland (art. 20 No. 1), Greece, Haiti (art. 129-2), Luxemburg, Netherlands | |
| Subjects outside of government | E.g. Lithuania, Serbia |
at the same time.[731] This contravenes the principle of collective responsibility of the Government and might prove detrimental to stability.
Further, a vote of no confidence against individual ministers involves the risk that the majorities required for the dismissal of the head of Government are circumvented in case the requirements to topple a minister are lower than those for a Government. If the majorities for dismissing the head of Government cannot be obtained, it should not be possible to dismiss single ministers instead and thereby bring down Government. This risk of bypassing the legal preconditions depends on the specific constitution and can only be evaluated by considering the entire framework. The procedure may again have its place in case of a presidential system.[732]
A vote of no confidence directed against individual ministers is an interference with internal governmental affairs and contravenes the principle of separation of powers. Therefore, it is generally not recommended or should at least be an absolut exception with the appropriate limitations expressed in the constitution.
However, there should always be the opportunity for Parliament to voice their criticism or disapproval of an individual minister’s work through non-binding ordinary resolutions.
10.5.2.2.3 C. Other Subjects
In some countries, a vote of no confidence against subjects outside of Government exists. That constitutes an even more significant infringement of the principle of separation of powers, especially if the vote of no confidence is directed against institutions that should be independent.
For instance, in 2017 Serbia planned to introduce a vote of confidence and a vote of no confidence against the so-called High Judicial Council (HJC). The council is composed of the president of the Supreme Court of Cassation, the Justice Minister and the Chairman. The Venice Commission strongly opposed the introduction of such an instrument.[733] It argued that the vote of no confidence should be limited to political institutions which are under parliamentary control. Members of independent institutions are usually in office for a fixed term which ensures their independence. If there is an option for Parliament to remove them early, their independence is severely compromised.
Lithuania’s constitution contains a no confidence vote also against the nominations for the State Controller[734] and the Chairman of the Board of the Bank of Lithuania, if the President submits.[735] This is also very problematic as the vote of no confidence is not directed against an institution which should be under direct parliamentarian control.
Thus, a no confidence vote against subjects outside of Government is not advisable.
10.5.2.3 What Are the Procedural Criteria of the Vote?
Several procedural requirements for the vote exist. They can be divided into formal requirements of the vote (A.), majority required for the vote of no confidence (B.), and further procedural requirements (C.).
10.5.2.3.1 A. Formal Requirements of the Vote
Most clauses include certain formal requirements for the vote (Table 10.15).
Table 10.15 | | Formal requirements of a vote of no confidence
| Character of further procedural criteria (form) | Clause | Countries |
| Written motion | By the presentation of a written motion (Estonia) | E.g. Nepal, Estonia (art. 97 No. 2), Hungary (art. 39 A No. 1) |
| Secret ballot | By secret ballot | E.g. Lithuania (art. 101 No. 2), Central African Republic (art. 47 S. 4) |
| Public ballot | In public ballot | E.g. Senegal (art. 86), Italy (art. 126 No. 2) |
| Possibility of the Government to respond to the proposal | The Government may present a statement or report | E.g. Finland |
In contrast to a public ballot, the secret ballot ensures that the parliamentarians can cast their vote without being pressured by party’s influence. This strengthens democratic control and is therefore highly recommended.
The possibility for Government to respond gives them the opportunity to explain and defend their decisions and is an important precondition for an informed vote by the parliamentarians. If no time limits exist, this will also lengthen the process itself.
10.5.2.3.2 B. Majority Required for the Vote of No Confidence
Normally, the parliament votes on the no confidence motion. In two-chamber systems usually only the chamber of deputies is entitled to vote. An exemption exists in Italy and Romania, where both chambers must vote (Table 10.16).
A simple majority, as required e.g. in Latvia or Romania,[736] increases the prospects of success, but it does not seem appropriate for such an important vote because it does not provide sufficient democratic legitimisation. It also bears the risk of a power vacuum and subsequent destabilisation because the head of Government could be dismissed very easily whereas the election of a new head of state usually requires an absolute majority.
A qualified majority of 2/3, such as Algeria requires, is supposed to achieve greater stability but on the expense democratic control. It poses an unnecessarily high hurdle and prevents Parliament from fulfilling its control function.
An absolute majority, as required e.g. in Serbia or Slovenia,[737] seems to strike the right balance and is therefore recommended.
It must also be taken into account that the deputies risk losing their own position in case of a successful vote of no confidence and might therefore be reluctant to cast their vote in favour of the motion. Furthermore, in case of a public ballot, the deputies might be pressured by their party to vote in the party’s interest. The success of a vote of no confidence usually requires a considerable amount of mistrust that exceeds these consequences.
Table 10.16 | | Majority required for a vote of no confidence
| Character of the majority | Clause | Countries |
| Simple majority | Majority of the votes cast | E.g. Austria (art. 74 No. 2), Latvia, Ukraine, Romania |
| Absolute majority | Majority of the total number of members of Parliament | E.g. Albania (art. 105 No. 2), Bulgaria (art. 89 No. 1), Czech Republic (art. 72 No. 2), Greece (art. 84 No. 6), Italy, Kenya (art. 59 No.3), Serbia, Slovenia, South Africa |
| Qualified majority | 2/3 of all Parliament members | E.g. South Sudan (art. 118 No. 1), Algeria (art. 137 No. 2), Burundi (art. 203), Cambodia (art. 98), Kazakhstan (art. 53 No. 7), Kyrgyzstan |
10.5.2.3.3 C. Further Procedural Requirements of the Vote/Exclusion Criteria Often further procedural requirements of the vote can be found, see Table 10.17.
As the table illustrates, many constitutions establish strict limitation periods which exclude the submission of a new vote of no confidence for a certain period of time after a no confidence vote was rejected or even after a motion was submitted. Such restrictions aim to achieve political stability and to prevent the abusive or obstructive use of the no confidence motion.[738] However, limitation periods severely limit parliamentary control. Parliament can only fulfil its control function if it is able to react to governmental misconduct at all times. With such a limitation period in place, a relatively trivial matter might exclude a vote for the next urgent and superior matter. Further, an abusive or obstructive use of the vote can be prevented by other means, such as general requirements for the initiation of the vote, so that time limitations are not necessary for those purposes either. The longer the limitation period, the more severe is the restriction of democratic control. Thus, such limitation periods should be reduced to a minimum of 3 or 6 months only.
A limitation period commencing after the appointment of a head of Government aims to grant Government a period of time to prove itself and is supposed to ensure political stability. As severe misconduct can also occur during the first months of an administration, this version of a limitation period is equally problematic because it deprives Parliament of its control over Government.
Some constitutions contain more detailed provisions which narrow the scope of the limitation period or allow for exceptions. If that is the case, the restrictions of parliamentary control are less severe and might be reasonable. For example, Estonia’s constitution only prohibits a no confidence motion on the same grounds
Table 10.17 | Further procedural requirements of a vote of no confidence
| Character of further procedural criteria | Clause | Countries |
| No further requirements, especially no absolute limitation period | E.g. Albania, Germany (art. 68 No. 2) | |
| Exclusion of another vote of no confidence during the same session | If the motion of censure is not adopted by the congress, its signatories may not submit another during the same period of sessions. (Spain) | E.g. France (art. 49 No. 2, 3), Portugal (art. 194 No. 3), Spain (art. 113 No. 4), Togo (art. 98) |
| Absolute limitation period after appointment | Provided that a no-confidence motion shall not be presented up to first two years of appointment of the Prime Minister (Nepal) The issue of liability of the Government may not be discussed in the course of the year after the approval of the programme of Government policy (Belarus) | E.g. Nepal (2 years, art. 100 No. 4), Belarus (1 year, art. 97 No. 7), Tanzania (6 months, art. 53 No. 2) |
| Limitation period after rejected vote | If a no confidence motion fails, another motion cannot be tabled within a year of its failure. | E.g. Nepal, Estonia (3 months, art. 97 No. 6), Serbia (180 days, art. 130 No. 5), Greece (art. 84 No. 2), Bulgaria (both 6 months, art. 89 No. 3), Papa New Guinea (18 months, art. 145 No. 4), Tanzania (9 months, art. 53 a No. 2 c) |
| Limitation period after submission of a no confidence motion | 3 months | E.g. Poland (art. 158 No. 2) |
| Requirements as to the quality of the misconduct | A motion of no confidence shall not be moved if: either it has no relation with the discharge of the responsibilities of the Prime Minister in accordance with Art. 52 of the constitution or there are no allegations that the Prime Minister has contravened the law concerning the ethics of public leaders (Tanzania) | E.g. Tanzania (art. 53 A No. 2 a) |
| Requirement of two votes of no confidence | No confidence must be expressed twice within one year | E.g. Azerbaijan (art. 98-1 No. 1) |
| Vote on the basis of “well-founded reasons” | E.g. Afghanistan (art. 92 No. 3) |
as the previous one for a period of three months.[739] Greece’s constitution contains an exception according to which a no confidence motion can be submitted within the limitation period if it is supported by an absolute majority of parliament.[740] The exception in Greece effectively just increases the requirements for the initiation of the vote instead of strictly excluding a new vote. Thus, parliamentary control is maintained—at least in extraordinary situations. A similar exception exists in Poland where 115 deputies are required to initiate a vote of no confidence during the limitation period.[741]
Some countries even established substantial requirements for the vote. For Instance, Azerbaijan requires even more than an absolute majority for the vote of no confidence. The President is only entitled to dissolve the Parliament if the Parliament expresses no confidence in the Government twice within 12 months.[742] This is an unnecessary high hurdle which cannot be recommended.
Another example can be found in Afghanistan’s constitution which requires a vote based on “well-founded reasons”.[743] The term “well-founded reasons” does not comply with the principle of legal certainty. As it is the parliament’s function to control Government it should be for the Parliament to decide what reasons suffice to remove Government
10.5.2.4 What Are the Time Limits of the Vote?
Frequently, there are time limits between the proposal of the vote of confidence and the actual vote, see Table 10.18.
The vote of no confidence often aims at a swift transition of power. In broad terms, a vote of no confidence could be characterised as a legal and constitutionally regulated form of a parliamentary coup. Often, it utilises the element of surprise. Deputies are in limbo during the initiation and the execution of the vote of no confidence: on the one hand they ought to be loyal to the incumbent, on the other hand a shift to a new leader is needed to effect change; potentially a very risky period for opinion makers. Some countries such as India by now have established fierce practices which try to ensure party discipline which collide with the free mandate of the Deputy as discussed in Sect. 2.1.2.1 of Writing Constitutions. Others ban Deputies the use of their mobile phones during this time or meet for several weeks in different cities such as it is practiced in Papua New Guinea, which is also not recommended. Instead, time is an important factor and the period between the initiation of the vote and the vote itself can be decisive for the outcome. The shorter the period, the higher the prospects of success. For this reason, very long mandatory
Table 10.18 | | Time limitations in between proposal and vote of no confidence
| Clause | Countries |
| Voting may not take place within 48 hours after the resolution has been tabled (France) | E.g. France (art. 49), Germany (art. 68 No. 2), Poland (regulated a time lapse of 7 days between proposal and vote, art. 158 No. 2) |
| 2-3 days | E.g. Greece (constitutes a time lapse of 2-3 days between the proposal and the vote for both the vote of confidence and the vote of no confidence, art. 84 No. 4) |
| At least 3 days: The vote cannot be held until three days after the introduction of the motion of censure. (Algeria) | E.g. Algeria (art. 136), Moldova (art. No. 2), Morocco (art. 75) |
| Not later than 5 days | E.g. Romania (art. 130 No. 2) |
| 3-8 days: no earlier than three days and no later than eight days from the date of the proposal (Hungary) | E.g. Hungary (art. 39 a No. 2) |
| 3-7 days | E.g. Pakistan (art. 95 No. 2) |
| At least 7 days | E.g. Iraq (art. 58 No. 8), Kenya (art. 59 No. 3) |
| Maximum of 15 days: The interpellation shall be replied to in a plenary session of the Parliament within 15 days of the date when the interpellation was brought to the attention of the Government. (Finland) | E.g. Finland (art. 20 No. 1) |
| 20-25 days: two different time limits are combined: a vote of confidence shall be called within not earlier than 20 and not later than 25 days | E.g. Georgia (art. 81 No. 1) |
periods should be examined critically as they often attempt to reduce the vote’s prospects of success and to weaken democratic control.
On the other hand, a certain minimum period of time is necessary to allow Government to respond, as well as to ensure a due process and thereby safeguard political stability.
A period of 48 to 72 hours seems to strike the right balance as it is certainly sufficient to ensure a due process while still maintaining good prospects of success.
10.5.2.5 How Does Third Power Intervention Verify the Vote of No Confidence?
The possibility of judicial verification of the vote of no confidence is required by the principle of the rule of law. It is also important because of its preventative effect of ensuring law-abiding behaviour. The details of the third power intervention depend on the respective consequences of the vote of no confidence. Therefore, they are mentioned in the following chapter on legal consequences.
Table 10.19 | | The minister in a vote of no confidence
| Legal nature/character | Clause | Countries |
| Removal of the minister | If the summoned [person] does not attend the respective Chamber, or if it considers his declarations unsatisfactory, both Chambers, by an absolute majority of two-thirds, may emit a vote of censure against him and recommend his removal from the office to the President of the Republic or to his hierarchic superior. (art. 194 No. 1, Paraguay) | E.g. Paraguay, Latvia (art. 59) |
| Replacement | If there is an expression of no confidence in an individual Minister, then the Minister shall resign and another person shall be invited to replace them by the Prime Minister. (art. 59, Latvia) | E.g. Latvia |
| Consequence after rejection/exclusion criteria | If it is rejected, no other motion of censure may be proposed concerning the same issue unless justified by new facts. (art. 135 No. 9, Colombia) ...no other motion may be proposed during that same period of sessions on the same subject with regard to the same minister or official. (art. 194 No. 2, Paraguay) | E.g. Colombia, Paraguay |
10.5.2.6 What Are the Consequences of a Vote of No Confidence?
The consequences after a successful vote of no confidence range from (voluntary) resignation of the Government the removal of the old Government and the simultaneous election of a new head of Government or the dissolution of Parliament by the head of state and call for re-elections.
10.5.2.6.1 A. Consequences of a Successful Vote of No Confidence Against an Individual Minister
If a constitution contains the possibility of a vote of no confidence against individual ministers, it should stipulate binding consequences (see Table 10.19). A lack of binding consequences can lead to legal and political uncertainty. It also results in a lack of democratic pressure and enforceability.
If a constitution establishes the possibility for a vote of no confidence against individual ministers (for arguments against such a vote see above section “B. Individual Ministers”), it is recommended that a new minister should be appointed in the same way as ministers are normally chosen and appointed in the respective state system. Otherwise, there would be an arbitrary breach with how the power is normally divided in the respective constitution. Thus, in most parliamentary systems, the head of Government would choose an alternative minister.
10.5.2.6.2 B. Overview of Consequences After a Successful Vote of No Confidence Against the Government as a Whole or the Head of Government
In Sweden, Finland, Belgium and Ireland the Government usually resigns, but without being forced by the constitution.[744] Similarly, in Indonesia the vote of no confidence is merely symbolic, as it does not have any binding consequences.[745] Other constitutions establish binding consequences, as shown in Table 10.20.
10.5.2.6.3 C. Resignation or Removal of the Government
As the Government depends on Parliament it cannot stay in office permanently without parliament’s consent. Thus, in a parliamentary democracy only the removal or resignation of Government at some point is the appropriate consequence of a successful vote of no confidence. However, if the removal of the Government is the immediate and sole consequence of a successful vote of no confidence, there will be a power vacuum as long as Parliament cannot agree on a new head of state. To avoid such a situation and to ensure a functioning state, it is recommended that the Government will stay in office transitionally until a new Government is formed. Still, the risk remains that a new Government cannot be formed anytime soon.
In Japan, after a no confidence motion has been passed, the entire cabinet must resign unless the Parliament dissolves itself within 10 days.[746]
The situation is different in semi-presidential systems. In Russia, the vote of no confidence can be rejected by the President so that the Government is not removed.[747] Only if Parliament passes a second vote of no confidence within three months, the President must announce the Government’s resignation (or dissolve parliament). This provision is problematic with regard to democratic principles because the President could prevent a transition of Government even if Parliament can agree on an alternative head of Government
According to Tanzania’s constitution, the Prime Minister must resign and the President shall appoint another deputy to be the new Prime Minister.[748] A similar provision can be found in Togo’s constitution.[749] Such provisions evidently shift power unilaterally to the executive because Parliament is not involved in the selection of a new Prime Minister.
In Cameroon, the Prime Minister shall tender the resignation of the Government to the President, who may dismiss or re-appoint the Prime Minister and ask him to form a new Government.[750] This is typical for a semi-presidential system where the President maintains the ultimate control over Government.
Table 10.20 | | The Prime Minister and Government in a vote of no confidence
| Legal nature/character | Clause | Countries |
| Removal of the head of government | If the National Council passes an explicit vote of no confidence in the Federal Government or individual members thereof, the Federal Government or the Federal Minister concerned shall be removed from office. (Austria) | E.g. Austria (art. 74) |
| Resignation of government Choice of the Government whether it resigns or calls for elections | The Council of Ministers shall resign if at any time there is a vote of no-confidence by the Parliamentary Assembly. (Bosnia and Herzogovina) Where the Folketing passes a vote of no confidence in the Prime Minister, he shall ask for the dismissal of the Ministry unless writs are to be issued for a general election. Where a vote of censure has been passed on a Ministry, or it has asked for its dismissal, it shall continue in office until a new Ministry has been appointed. Ministers who continue in office as aforesaid shall do only what is necessary for the purpose of the uninterrupted conduct of official business. (Denmark) | E.g. Belarus (art. 106), Bulgaria (art. 89 No. 2), Bosnia and Herzogovina (art. V Sec. 4c), Czech Republic (art. 73 No. 2), Denmark (art. 15 No. 2), France (art. 50), Gabon (art. 65), Haiti (art. 129-4), Japan (art. 69), Latvia (art. 59) |
| Government remaining in office as caretaker government | The Prime Minister and the ministers are obligated to stay in office until the appointment of the new Council of Ministers. | E.g. Albania (art. 106), Bulgaria (art. 111 No. 3), Denmark (art. 15 No. 2), Iraq (art. 58 No. 8 d) |
| Dissolution of parliament | [...] the President shall have the right to dissolve Parliament and schedule extraordinary elections within three days. (Georgia) | E.g. Georgia (art. 81 No. 6) |
| Dissolution of parliament with exceptions for certain situations | The chambers may not be dissolved during a state of emergency or martial law, in the last six months of the term of office of the President, in the course of proceedings of both chambers on the | E.g. Belarus (art. 94 No. 3), Poland, Russia (art. 109 No. 3-5), Serbia (art. 131 No.4) |
Table 10.20 (continued)
| Legal nature/character | Clause | Countries |
| premature removal of the President from office. Both chambers may not be dissolved in the course of the first year since the first sittings were held. (Belarus) The State Duma may not be dissolved on the grounds envisaged in Art. 117 of the constitution of the Russian Federation during the year following its election [...] (Russia) | ||
| Fresh elections | E.g. Belarus, Denmark, Estonia (art. 97 No. 4), Georgia (art. 81 No. 6), Mozambique (art. 136 No. 3) | |
| Discretionary competence of the president | In the event the motion for a vote of no confidence in the Prime Minister is supported by a majority of the Members of Parliament, the Speaker shall submit the resolution to the President, and as soon as possible and in any event within two days from the day the National Assembly passed the vote of no confidence in the Prime Minister, the Prime Minister shall be required to resign, and the President shall appoint another Member of Parliament to be Prime Minister. (Tanzania) | E.g. Russia (art. 117 No.3), Belarus, Cameroon (art. 34 No. 1), Hungary, Croatia, Estonia, Lithuania, Tanzania (art. 53 a No. 6), Togo (art. 98) |
| Only notification and discretionary competence of the King | If the Chamber of Deputies approves by a two-thirds majority vote of its membership the motion of inability to cooperate with the prime minister, the matter is submitted to the King for judgment on whether the Prime Minister shall be removed from his post and a new cabinet appointed, or the Chamber of Deputies shall be dissolved. | E.g. Bahrain (art. 67 d) |
Table 10.20 (continued)
| Legal nature/character | Clause | Countries |
| Binding consequence only after second vote with identical majorities (and/or within a certain time limit) | President is empowered to dissolve (the Parliament) if the same convocation of the (Parliament) twice within 12 months (Azerbaijan) | E.g. Azerbaijan, Kyrgyzstan |
| Constructive vote of no confidence, i.e. replacement of the head of government | The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor [...] and requesting the Federal President to dismiss the Federal Chancellor (Germany) | E.g. Albania (art. 105 No. 2), Belgium (art. 96), Germany (art. 67), Lesotho (art. 83 No. 4 b, 5), Nepal (art. 100), Poland (art. 158 No. 1) |
10.5.2.6.4 D. Dissolution of Parliament and Re-Elections
The dissolution of Parliament is a very dramatic measure as it requires new elections and can cause significant political instability and can lead to the people’s loss of trust in the political system. Therefore, the measure is an ultima ratio and should never be the direct consequence of a vote of no confidence. Instead, as a first step the existing Parliament should try to agree on a new head of Government. Thus, it is recommended to include a time limit which provides that a certain period must pass between the vote and the dissolution—such as e.g. Serbia[751] did. If the current Parliament cannot agree on a new head of Government a dissolution and re-elections might be the only way to enable the formation of a new Government. Even in this case it must be considered that the dissolution can cause significant destabilisation. For that reason, in some countries, such as Russia,[752] Parliament cannot be dissolved in case of a state of emergency or other exceptional situations.
Whether a President should have the discretionary competence to decide on dissolution of Parliament is a separate question. Generally, such a competence might lead to a double dependency of Government on Parliament and on the President.[753] Further, as the Venice Commission pointed out in a comment in 2016 on Azerbaijan’s draft modifications to the constitution, the President’s discretionary power to decide on parliament’s dissolution should not be assessed in the abstract but must be viewed in the context of the overall powers a President has in a specific constitutional system.[754] In the case of Azerbaijan, the Commission criticised that the discretionary power to dissolve Parliament would add up to the already strong position of the President so that the balance between executive and legislative powers would become distorted.
Another example is Belarus, where the President has the discretionary power to dissolve Parliament after a successful vote of no confidence.[755] This model cannot be recommended as it enables the President to dissolve Parliament immediately without giving the current Parliament a chance to form a new Government In Russia, the President has the discretionary power to dissolve Parliament after two successful votes of no confidence.[756]
The dissolution of Parliament is a very powerful instrument with an inherent risk of abuse. Therefore, leaving this decision to the President could concentrate too much power in the hands of a single person. Thus, it is generally not recommended. However, there are safeguards, such as time limitations or the involvement of other organs which could cushion that risk. For instance, in Estonia[757] the President can dissolve the Parliament only upon proposal of the government. In some instances, Parliament will self-dissolve to pave way for new elections, so for example the Austrian Parliament after the Ibiza affair.[758]
10.5.2.6.5 E. Constructive Vote of No Confidence
In contrast to the aforementioned destructive consequences of a vote of no confidence, a constructive vote of no confidence requires Parliament to agree on an alternative leader: A constructive vote of no confidence will only be successful if the dismissed head of Government is concurrently replaced by a newly elected head of Government The prime example for this model can be found in the German constitution. The adoption of the constructive vote of no confidence in Germany’s constitution of 1949 must be viewed as a reaction to the fatal misuse of the previous vote of no confidence clause during the German Weimar Republic which is outlined above (see Sect. 10.5.1.5). The German version of the vote of no confidence has proven to ensure stability and to minimise the potential for abuse and therefore has served as a role model for other constitutions, such as Belgium or Slovenia.[759]
The constructive element (i.e. the simultaneous election of a new head of government) prevents a vacuum of power. Whereas a destructive vote of no confidence can be used as an instrument of obstruction by opposing parties forming a negative majority (i. e. without being able to agree on a new head of government), the constructive vote of no confidence prevents the lack of a Government and the
Table 10.21 | Timeframe for consequences following a vote of no confidence
| Nature/ Main feature | Clause | Countries |
| Timeframe of 21 days | [...] within twenty-one days (prev. art. 74, Armenia, now Prime Minister is deemed to have resigned (art. 115)) | E.g. Armenia |
| Timeframe of 10 days | [...] accept the resignation of the Government or dissolve the legislature within ten days (art.106, Belarus) | E.g. Belarus |
| Timeframe of 3 days | [...] the President of the Republic may, on proposal by the Government and within three days, declare early elections (art. 97 No. 4, Estonia) | E.g. Estonia, Serbia (art. 109, 131 No. 4), Kenya (art. 59 No. 3) |
dissolution of Parliament and protects from the political instability which would follow.[760]
The constructive vote of no confidence also strikes the right balance between ensuring political stability and enabling the Parliament to exercise democratic control over the Government. On the one hand, the requirement to safeguard a sufficient majority in order to elect a new head of Government poses a hurdle which rules out that the vote of no confidence is used too hastily and irresponsibly. On the other hand, once a majority of the MPs can agree on an alternative head of Government the vote of no confidence has a real prospect of success.
Thus, it can be concluded that the constructive vote of no confidence minimises the risk of destabilization while ensuring an effective democratic control and is therefore highly recommended.
10.5.2.6.6 F. Timeframe for Consequences
Some constitutions stipulate a timeframe for consequences after a vote of no confidence, see Table 10.21.
In order to give the current Parliament the chance to elect a new head of Government a considerable period of time between the vote and dissolution of Parliament should be allowed for. Three days, as Kenia’s constitution[761] provides, might not be sufficient. Zimbabwe’s solution of 14 days[762] should, however, be enough. On the other hand, the timeframe between the vote and consequences should not be too long both in order to reduce the period of uncertainty and to prevent unnecessary delays. 21 days, as provided by the previous Armenian constitution are considered lenghty.