Constructive vote of no confidence
The constructive vote of no confidence (in German: konstruktives Misstrauensvotum, in Spanish: moción de censura constructiva) is a variation on the motion of no confidence that allows a parliament to withdraw confidence from a head of government only if there is a positive majority for a prospective successor. The principle is intended to ensure that a replacement head of government has enough parliamentary support to govern.
Governments in the 1919 Weimar Republic were usually very unstable. As there was no election threshold for getting a seat in the Reichstag, it was possible to get a seat with as little as 0.4 percent of the vote. This resulted in a large number of parties getting seats, making it very difficult for a government to retain a majority. Under the Weimar Constitution, a Chancellor (or Reichskanzler as he was then called) would frequently be voted out of office without his successor having sufficient backing to govern. This led to a quick succession of many Chancellors in office. Many of these chancellors were forced to rely on the emergency provisions of Article 48 just to conduct the basic business of government. In the latter years of the Weimar era, this frequently led to the imposition of cabinets that were dependent on the confidence of the President, Paul 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 Basic Law (Grundgesetz). They stipulate that the Chancellor, or Bundeskanzler (Federal Chancellor) as he is now called, may be removed from office by majority vote of the Bundestag ("Federal Diet", the lower chamber/house of the German Federal 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 there is not a positive majority for a prospective successor.
For a successful motion of no confidence, a majority of the members of Bundestag is needed to elect a new chancellor. This means that not participating in the vote or abstaining has the same effect as voting no. This was of specific importance in the first (unsuccessful) use of this instrument.
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. One consequence of this is that in contrast to many other parliamentary democracies, the Chancellor does not petition the President to dissolve the legislature. Rather, in the past, the Chancellor deliberately loses a motion of confidence. However, this practice has been restricted by the Federal Constitutional Court since the election of Helmut Kohl in 1982.
While Carlo Schmid is generally considered to be the main contributor to this constitutional innovation, the concept was actually first introduced after World War I in the Free State of Prussia. Its existence was a major reason why that state was governed by a centre-left coalition without interruption from 1919 to 1932.
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?|
|27 April 1972||Rainer Barzel (CDU)||Willy Brandt (SPD)||247||10||3||236||no|
|1 October 1982||Helmut Kohl (CDU)||Helmut Schmidt (SPD)||256||235||4||2||yes|
1972 (failed vote)
On 27 April 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 either switched over to the opposition or announced they would vote for the no-confidence motion. The numerous defections theoretically dropped the coalition to just 246 votes. The opposition nominally had 250 votes, just one vote over the 249 needed to topple Brandt.
The vote was highly influenced by tactics. To hamper their deputies from voting for Barzel in the secret ballot, the leadership of the governing parties urged its deputies not to participate in the vote; as a majority of deputies was needed for a successful vote, not participating meant in fact voting no. Only the members of government and a few deputies of the governing parties voted, the first to ensure that dissenting deputies from CDU might remain secret.
Despite this, Brandt believed he was finished, and the SPD had girded itself to be consigned to opposition. A number of unions went on strike in anticipation of Brandt's defeat. In the end, only 260 votes were cast: 247 with yes, 10 with no, 3 abstaining, and 236 either absent or invalid. It was thus clear that the missing votes were 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. That is somewhat ironic since Brandt's Ostpolitik is today seen as one of the major steps that eventually led to the implosion of East Germany in 1989.
However, as the government was no longer backed by a majority in parliament, on 22 September, Chancellor Brandt proposed a Motion of confidence to the Bundestag. He lost intentionally to make way for the West German federal election, 1972.
1982 (successful vote)
On 1 October 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 much easier than the earlier one since it was clear that the FDP wanted to switch over to a coalition with the CDU. Indeed, the FDP 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 by a 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 triggered an appeal to the Federal Constitutional Court, which, in a somewhat helpless ruling, upheld the move but set 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.
Gerhard Schröder's 2005 motion of confidence
On 22 May 2005, after the SPD lost to the Christian Democrats (CDU) in the state (land) elections in North Rhine-Westphalia, Chancellor Gerhard Schröder announced he would call federal elections "as soon as possible". Constructive vote of no confidence were not used (Article 67), instead a motion of confidence (Article 68) in Chancellor Schröder was subsequently defeated in the Bundestag on 1 July 2005 by 151 to 296 (with 148 abstaining), after Schröder urged members not to vote for his government in order to trigger new elections. The Federal Constitutional Court, once again, allowed such motion of confidence, and the Federal President dissolved the Bundestag according to the Article 68, Par. 2 of the Basic Law. The German federal elections, 2005 were held on 18 September. After the elections, neither Schröder's SPD-Green coalition nor the alliance between CDU/CSU and the FDP led by Angela Merkel achieved a majority in parliament. On October 10, it was announced that the parties had agreed to form a grand coalition. Schröder agreed to cede the chancellorship to Merkel, but the SPD would hold the majority of government posts and retain considerable control of government policy. Merkel was elected Chancellor on 22 November.
A very similar 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 (parliaments/assemblies of autonomous communities).
Under the Constitution, the Prime Minister (President of the Government) must resign if he proposes a vote of confidence to the Congress of Deputies (the lower chamber of the Cortes Generales, Spanish parliament) and if he is defeated, or alternatively, if the Congress, on its own initiative, censures the government. However, when a censure motion is introduced, a prospective replacement candidate for Prime Minister must be nominated at the same time. If the censure motion carries, the replacement candidate is deemed to have the confidence of the Congress of Deputies and thus automatically ascends as Prime Minister.
As with the German Basic Law, the term "constructive vote of no confidence" does not actually appear in the Spanish constitution. The relevant provisions are as follows:
- Article 113
1. The Congress of Deputies may require political responsibility from the Government by adopting a motion of censure (no confidence) by overall (absolute) majority of its Members.
2. The motion of censure (no confidence) must be proposed by at least one tenth of the Members of Congress of Deputies and shall include a candidate for the office of the Presidency of the Government.
3. The motion of censure (no confidence) may not be voted until five days after it has been submitted. During the first two days of this period, alternative motions may be submitted.
4. If the motion of censure (no confidence) is not adopted by the Congress of Deputies, its signatories may not submit another during the same period of sessions.
- Article 114
1. If the Congress of Deputies withholds its confidence from the Government, the latter shall submit its resignation to the King, whereafter the President of the Government shall be nominated in accordance with the provisions of Article 99.
2. If the Congress of Deputies adopts a motion of censure (no confidence), 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 for the purposes provided in section 99. The King shall appoint him President of the Government.
Since the enactment of the 1978 Constitution, there have been four attempted constructive votes of no confidence. The first successful vote came on 1 June 2018, when Mariano Rajoy was voted out in favour of Pedro Sánchez.
Article 39A (1) of the constitution provided 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.
Since 2012 new constitution named Fundamental Law has been in force and it has same regulation of the motion of no confidence.
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.
Fundamental Law of Hungary
Current Fundamental Law of Hungary (new Constitution of Hungary adopted in 2011) has similar provisions that allow only constructive vote of no confidence by the absolute majority of the unicameral National Assembly (parliament) members.
- Article 21
(1) One-fifth of the Members of the National Assembly may, together with the designation of a candidate for the office of Prime Minister, submit a written motion of no-confidence against the Prime Minister.
(2) If the National Assembly supports the motion of no-confidence, it thereby expresses its lack of confidence in the Prime Minister and simultaneously elects the person proposed for the office of Prime Minister in the motion of no-confidence. For such decision of the National Assembly, the votes of more than half of the Members of the National Assembly shall be required.
(3) The Prime Minister may put forward a confidence vote. The National Assembly expresses its lack of confidence in the Prime Minister if more than half of the Members of the National Assembly do not support the Prime Minister in the confidence vote proposed by the Prime Minister.
(4) The Prime Minister may propose that the vote on a proposal submitted by the Government be simultaneously a confidence vote. The National Assembly expresses its lack of confidence in the Prime Minister if it does not support the proposal submitted by the Government.
(5) The National Assembly shall decide on the question of confidence after the third day, but no later than eight days following the submission of the motion of no-confidence or of the Prime Minister’s motion pursuant to Paragraphs (3) or (4).
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.
The constructive vote of no confidence has been in place since the direct election of the Prime Minister of Israel was abolished in 2001. By a vote of no confidence the Knesset (parliament) did not elect new prime minister but only proposed a formateur: a presumptive nominee charged with seeking to form a new government. The candidate proposed then might or might not secure a positive vote of confidence before becoming prime minister. The system, therefore, did not guarantee continuity in the same way as the constructive vote of no confidence was used in Germany and elsewhere. Amendment No. I of the Basic Law of Government 2001 removed the formateur, switching to a conventional constructive vote of no confidence. The Basic Law of Government 2001 provides in Section 28 (b):
- An expression of no confidence in the Government shall be done by means of a resolution of the Knesset, adopted by the majority of its Members to express confidence in another Government that announced basic guidelines of its policy, its make-up and the distribution of functions among Ministers, as stated in article 13 (d). The new Government shall be established once the Knesset has expressed confidence in it, and from that time the Ministers shall go into office.
The Constitution of Poland (1997) states that the Sejm (lower chamber of the National Assembly) may remove the Council of Ministers (cabinet) only by a resolution (adopted by absolute majority of the Sejm members), which specifies the name of the new Prime Minister (President of the Council of Ministers).
- Article 158
The Sejm shall pass a vote of no confidence in the Council of Ministers by a majority of votes of the statutory number of Deputies, on a motion moved by at least 46 Deputies and that shall specify the name of a candidate for Prime Minister. If such a resolution has been passed by the Sejm, the President of the Republic shall accept the resignation of the Council of Ministers and appoint a new Prime Minister as chosen by the Sejm, and, on his application, the other members of the Council of Ministers and accept their oath of office.
A motion to pass a resolution referred to in para. 1 above, may be put to a vote no sooner than 7 days after it has been submitted. A subsequent motion of a like kind may be submitted no sooner than after the end of 3 months from the day the previous motion was submitted.
The Constitution of Albania (1998 as amended in 2008 and 2012) stipulates also that only constructive vote of no confidence may be adopted by the absolute majority of the unicameral Assembly (parliament) deputies.
- Article 104 [Motion of confidence]
1. The Prime Minister has the right to submit to the Assembly a motion of confidence in the Council of Ministers. If the motion of confidence is voted by fewer than half of all the members of the Assembly, within 48 hours from the voting on the motion, the Prime Minister asks the President of the Republic to dissolve the Assembly.
2. The President dissolves the Assembly within 10 days from receipt of the request. A request for a motion of confidence may not be submitted during the period when a motion of no confidence according to article 105 is being examined.
3. The motion may not be voted on unless three days have passed from its submission.
- Article 105 [Motion of no confidence]
1. One fifth of the deputies have the right to submit for voting in the Assembly a motion of no confidence in the Prime Minister in office, proposing a new Prime Minister.
2. The Assembly may vote a motion of no confidence against the Prime Minister only by electing a new Prime Minister with the votes of more than half of all its members.
3. The President of the Republic decrees the discharge of the Prime Minister in office and the appointment of the elected Prime Minister no later than 10 days from the voting on the motion in the Assembly.
According to the Constitution of Slovenia (1991 as amended in 1997, 2000, 2003, 2004, 2006 and 2013) the National Assembly (Državni zbor, lower chamber of the Slovenian parliament) may pass a motion of no confidence in the Government only by constructive vote of no confidence.
- Article 116 [Vote of no confidence]
The National Assembly may pass a vote of no confidence in the Government only by electing a new President of the Government on the proposal of at least ten deputies and by a majority vote of all deputies. The incumbent President of the Government is thereby dismissed, but together with his ministers he must continue to perform his regular duties until the swearing in of a new Government.
No less than forty-eight hours must elapse between the lodging of a proposal to elect a new President of the Government and the vote itself, unless the National Assembly decides otherwise by a two-thirds majority vote of all deputies, or if the country is at war or in a state of emergency.
Where the President of the Government has been elected on the basis of the fourth paragraph of Article 111, a vote of no confidence is expressed in him if on the proposal of at least ten deputies, the National Assembly elects a new President of the Government by a majority of votes cast.
- Article 117 [Vote of confidence]
The President of the Government may require a vote of confidence in the Government. If the Government does not receive the support of a majority vote of all deputies, within thirty days the National Assembly must elect a new President of the Government or in a new vote express its confidence in the incumbent President of the Government, or failing this, the President of the Republic dissolves the National Assembly and calls new elections. The President of the Government may tie the issue of confidence to the adoption of a law or to some other decision in the National Assembly. If such decision is not adopted, it is deemed that a vote of no confidence in the Government has been passed.
No less than forty-eight hours must elapse between the requirement of a vote of confidence and the vote itself.
- Article 46 [Reasons for Dissolution]
(1) The King has only the right to dissolve the Chamber of Representatives if the latter, with the absolute majority of its members:
1) either rejects a motion of confidence in the federal Government and does not propose to the King, within three days from the day of the rejection of the motion, the nomination of a successor to the Prime Minister;
2) or adopts a motion of disapproval (no confidence) with regard to the federal Government and does not simultaneously propose to the King the nomination of a successor to the Prime Minister.
(2) The motions of confidence and disapproval can only be voted on after a delay of forty-eight hours after the introduction of the motion.
(3) Moreover, the King may, in the event of the resignation of the federal Government, dissolve the Chamber of Representatives after having received its agreement expressed by the absolute majority of its members.
(4) The dissolution of the Chamber of Representatives entails the dissolution of the Senate.
(5) The act of dissolution involves the convoking of the electorate within forty days and of the Chambers within two months.
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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?]
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