Constructive vote of no confidence

The constructive vote of no confidence (in German: konstruktives Misstrauensvotum) is a variation on the motion of no confidence which allows a parliament to withdraw confidence from a head of government only if there is a positive majority for a prospective successor. The concept was invented in Germany, but is today also used in other nations, such as Spain, Hungary, Slovenia, Poland and Lesotho.

Germany

While Carlo Schmid is generally considered to be the main contributor to this constitutional innovation, the concept actually originated in the Free State of Prussia in the aftermath of World War I^{[citation needed]}.

Governments in the 1919 Weimar Republic were usually very unstable. One factor was that a Chancellor (or Reichskanzler as he was then called) would frequently be voted out of office without his successor having sufficient backing in parliament. This led to quick succession of many Chancellors in office^[1] and finally to the imposition of cabinets that were dependent on the confidence of President, Von Hindenburg. This instability was helped by and seen as contributing to the rise of the Nazi Party under Adolf Hitler.

To overcome this problem, two provisions were included in the 1949 German constitution, the Grundgesetz (Basic Law). It is provided that the Bundeskanzler may be removed from office by majority vote of the Bundestag (parliament) only if a prospective successor also has the support of a majority. The relevant provisions are as follows:

Article 67. (1) The Bundestag can express its lack of confidence in the Federal Chancellor only by electing a successor with the majority of its members and by requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.

(2) Forty-eight hours must elapse between the motion and the election.

Article 68. (1) If a motion of a Federal Chancellor for a vote of confidence is not assented to by the majority of the members of the Bundestag, the Federal President may, upon the proposal of the Federal Chancellor, dissolve the Bundestag within twenty-one days. The right to dissolve shall lapse as soon as the Bundestag with the majority of its members elects another Federal Chancellor.

(2) Forty-eight hours must elapse between the motion and the vote thereon.

As a result, the failure of a motion of confidence does not automatically force either the resignation of the cabinet or a new election. Rather, the cabinet may continue as a minority government if the opposition is unable to agree to a successor via a constructive vote of no confidence.

Also, the Federal President may dissolve the legislature only after the failure of a motion of confidence, and the legislature may not dissolve itself either. This provision is intended to limit the power of the President, which was also considered a weakness in the Weimar Republic. One consequence of this is that in contrast to many other parliamentary democracies, the German Chancellor does not petition the head of state to dissolve the legislature. Rather, in the past, the Federal Chancellor has proposed a motion of confidence that he intentionally loses. However, this practice has been restricted by the Federal Constitutional Court since the election of Helmut Kohl in 1982.

History of use

Since 1949, only two constructive votes of no confidence have been attempted, and only one has been successful.

Date	Opposition candidate (party)	Chancellor (party)	Yes	No	Abstention	absent/invalid	Vote successful?
April 27, 1972	Rainer Barzel (CDU)	Willy Brandt (SPD)	247	10	3	236	no
October 1, 1982	Helmut Kohl (CDU)	Helmut Schmidt (SPD)	256	235	4	2	yes

1972 (failed vote)

On April 27, 1972, an attempt to vote Chancellor Willy Brandt (SPD) out of office in favor of opposition leader Rainer Barzel (CDU) failed by a margin of only two votes. This came as a surprise, since it was known that several members of the SPD-FDP coalition strongly opposed Brandt's Ostpolitik and the government no longer had a clear majority after several deputies had switched over to the opposition. Mathematically, the opposition should have had a majority of 250 votes compared to 246 left for the coalition. It needed 249 for bringing down Brandt.

The vote was highly influenced by tactics; although being secret, the voting of the CDU was exposed by the coalition mostly abstaining from the vote. In the end, only 260 votes were cast: 247 with yes, 10 with no, and 3 abstentions from voting. It was thus clear that the missing votes had to be looked for within the CDU faction. In June 1973, CDU member Julius Steiner admitted to Der Spiegel magazine to have abstained from voting. Later, he claimed to have received 50 000 DM in return from one of the leading SPD figures, Karl Wienand. Leo Wagner of the CSU was suspected to have received a bribe as well, but conclusive evidence could not be found. After the 1990 German reunification, it became clear that the bribe money that was offered to several CDU politicians came from the East-German Stasi (secret police) who at the time saw a need for Brandt to stay in power. This is somewhat ironic because Brandt's Ostpolitik is today seen as one of the major steps that eventually led to the implosion of the communist states after 1989.

However, as the government was no longer backed by a majority in parliament, on September 22 Chancellor Brandt proposed a Motion of confidence to the Bundestag, which he lost intentionally to make way for the West German federal election, 1972.

1982 (successful vote)

On October 1, 1982, Helmut Schmidt was successfully voted out of office in favor of Helmut Kohl, marking the end of the SPD-FDP coalition. The vote was not as tricky, technically, as the earlier one since it was clear this time that the FDP wanted to switch over to a coalition with the CDU and was already in negotiations at the time the vote happened. The FDP was no longer content with SPD economic policy, and at the same time, the SPD was internally divided over NATO stationing of nuclear missiles in Germany. Still, the vote succeeded with a slim majority of only seven votes.

To obtain a clearer majority in the Bundestag (which seemed to be in reach according to the polls), after the vote, Helmut Kohl put up a motion of confidence in which the new CDU-FDP coalition intentionally voted against the Chancellor that it just put into power. This trick allowed for the dissolution of the Bundestag according to Article 68 Grundgesetz (see above). Still, the action prompted for a decision of the German Federal Constitutional Court, which, in a somewhat helpless ruling, upheld the move but put up criteria for such motions in future. After all, the new Bundestag had already been elected in March 1983, yielding a strong majority for the new coalition, which eventually lasted until 1998.

Spain

A very silmilar system to the German one exists in Spain today. It was approved in the new constitution of 1978 for the national Cortes (parliament) and also came into force in territorial assemblies.

The President of the Government (prime minister) must resign if he proposes a vote of confidence to the Congress of Deputies (the lower house) and it is defeated, or if the Congress, on its own initiative, adopts a constructive vote of no confidence. As with the German Basic Law, the term "constructive vote of no confidence" does not actually appear in the Constitution of Spain. The relevant provisions are as follows:

Article 113. (1) The Congress of Deputies may require political responsibility from the Government by means of the adoption by an absolute majority of a motion of censure.

(2) The motion of censure must be proposed by at least one-tenth of the Deputies and must include a candidate to the office of the Presidency of the Government.

(3) The motion of censure cannot be voted on until five days after its presentation. During the first two days of this period, alternative motions may be presented.

(4) If the motion of censure is not approved by the Congress of Deputies, its signatories cannot present another during the same period of sessions.

Article 114.(2) If the House of Representatives adopts a motion of censure, the Government shall present its resignation to the King and the candidate included in it shall be understood to have the confidence of the Chamber ...The King shall appoint him President of the Government.

Hungary

The unicameral National Assembly may not remove the Prime Minister of Hungary except by a constructive vote of no confidence. Article 39A (1) of the constitution provides that:

A motion of no confidence in the Prime Minister may be initiated by a written petition, which includes the nomination for a candidate for the office of Prime Minister, by no less than one-fifth of the Members of the National Assembly. A motion of no-confidence in the Prime Minister is considered a motion of no-confidence in the Government as well. Should, on the basis of this motion, the majority of the Members of the National Assembly withdraw their confidence, then the candidate nominated for Prime Minister in the motion shall be considered to have been elected.

Use

In March 2009 the prime minister, Ferenc Gyurcsány, announced he would hand over his position to a politician with a higher support of the parties of the Hungarian parliament. The Alliance of Free Democrats (SZDSZ) opposed most candidates for the post proposed by the Hungarian Socialist Party (MSZP), but on 30 March 2009, Gordon Bajnai managed to get the backing of both parties. A constructive motion of no confidence against Ferenc Gyurcsány took place on 14 April. Bajnai became Prime Minister.

Lesotho

Subsection (8) of section 87 of the Constitution of Lesotho stipulates that a motion of no confidence in the Prime Minister of Lesotho is of no effect unless the National Assembly nominates one of its members to be appointed prime minister in place of the incumbent:

A resolution of no confidence in the Government of Lesotho shall not be effective for the purposes of subsections (5)(a) and (7)(e) unless it proposes the name of a member of the National Assembly for the King to appoint in the place of the Prime Minister.^[2]

Israel

A variant of the constructive vote of no confidence has been in place since the direct election of the Prime Minister of Israel was abolished in 2001. A vote of no confidence by the Knesset (parliament) does not elect a new prime minister but proposes only a formateur: a presumptive nominee charged with seeking to form a new government. The candidate proposed then may or may not secure a positive vote of confidence before becoming prime minister. The system, therefore, does not seem to guarantee continuity in the same way as the constructive vote of no confidence used in Germany and elsewhere. The Basic Law of 2001 provides in Section 28 (b):

An expression of no confidence in the Government will be by a decision adopted by the majority of the members of Knesset to request that the President assign the task of forming a Government to a certain Knesset member who gave his written consent thereto. Then Knesset member is given 28 days to try to form a government.

Westminster systems

In partisan Westminster systems, a constructive vote of no confidence is normally not required. A prime minister faced with a vote of no confidence must either resign immediately or request a dissolution of parliament and fresh elections. This system is normally stable because strong political parties in the Westminster system ensure a very small number of viable candidates to replace a prime minister, and also ensures frequent and stable majority governments.

However, this was not always the case historically, especially in Westminster systems without clearly defined political parties. In such circumstances, it was often the case that the sitting prime minister would be unpopular with parliamentarians but also might not have a viable successor who could have a better command of the parliament. In such cases, it was informally expected that parliament refrain from a vote of no confidence unless there was a reasonably obvious successor, in which case the prime minister would usually be expected to resign without recourse to fresh elections.

On the other hand, if a prime minister in a nonpartisan Westminster system sustained a vote of no confidence in spite of the lack of an obviously viable successor then depending on the circumstances he might have up to two alternatives to resignation: call fresh elections or attempt to continue governing in spite of the non-confidence vote.^[where?]

See also

• Politics of Germany
• Politics of Spain

References

1. ^ See Chancellor of Germany for a list
2. ^ The Constitution of Lesotho. Accessed on July 21, 2010.

External links

• Barzel congratulates Brandt after the unsuccessful vote