July 25

Fake vote of no confidence

Republican constitutions will often attempt to imitate the highly successful Westminster system which is used in the world’s most successful countries, as measured by the UN Development Index.

This is also the constitutional system of five of the world’s seven oldest continuous democracies.

The other two are republics which do not attempt to imitate the Westminster system, the Untied States and Switzerland, whose record of stability is somewhat tainted by their civil wars.

The first German attempt at a Westminster republic, the inter war Weimar republic is generally assessed a failure. The Weimar republic was marked by serious instability, financial crises and the appointment by President Hindenburg of Adolf Hitler as Chancellor, the German title for prime minister.

So in the post war period, the Germans were faced with the problem of ensuring that the mistakes of the Weimar republic were not repeated.

They saw the need for a president in their parliamentary constitution as a check and balance against the chancellor and the government, who would control a majority in the lower house, the Bundestag.

But equally, they realised that an elected president is another politician. This is so whether he is directly elected by the people, or by a college.

All sorts of college have been devised by the draftsmen of various republican constiutions– indeed this seems to be part of the fun in being a republican, if we can call that fun.

In the years leading up to the 1999 referendum in Australia , the preferred college was a joint sitting of the federal parliament .Under the present German constitution, the president is also elected by a college, the Bundesversammlung. This consists of the Bundestag, the federal lower house, and an equal number of delegates from the states.

The current President, Horst Kohler, was elected on 4 March 2004.He was the candidate chosen by Germany’s conservative and liberal opposition parties. Selected by Angela Merkel’s Christian Democratic Union (CDU), currently Germany’s largest opposition party, he was endorsed by its Bavarian sister party, the Christian Social Union (CSU), as well as by the small liberal party, the Free Democratic Party of Germany (FDP).

As opposition parties controlled a majority of votes in the Bundesversammlung, the result of the vote should have been a foregone conclusion, but turned out closer than expected.

Köhler defeated the Social Democrat candidate Gesine Schwan on the first ballot by 604 votes to 580; 20 votes were cast for minor candidates, while one elector was absent because of a heart attack.

The result would be as if Prime Minister Howard had a Labor President, or Prime Minister Keating had had a Liberal President.

Obviously, if the President had the powers of, say, the Australian Governor-General, this could put the two on a collision course.

This is the problem with Westminster republics .How do you turn a politician into what the Australian Crown provides, a leader above politics?.

In Australia, former politicians have made this conversion on their appointment as Governor-General. This is because they are appointed by, and removable by their Sovereign-whoever recommends the Sovereign act. They know their duty is to The Queen, and through her, the people.

The case of Sir William McKell illustrates this point. His appointment was criticised-he was after all a Labor Premier of NSW.

Sir Robert Menzies, liberal Leader of the Opposition, saw to it that his party’s criticisms terminated after Sir William took office.

When Sir Robert, after satisfying all constitutional conditions sought a double dissolution in 1951, some observers thought Sir William would act politically. They believed he would decline the request and act in the interests of the Labor Party.

It was widely believed that the subsequent election would deliver both houses to the Liberals. But Sir William behaved impeccably, and granted the double dissolution.

His duty, his personal allegiance, was to his Queen , and thus to the people. It was certainly not to the Party of which he had so long been a most loyal member.

There is of course no such superior personal allegiance for a President. Any direct relationship with the nation, or the people is meaningless and unenforceable. So the first step in Westminster republic is to codify the presidents powers-that is write them down. In 1999, the republicans had not thought through their preferred model. They did not even know that to stay in the Commonwealth we had to have no opposition from any one of the other 52 members of the Commonwealth. When we pointed this out we were denounced as liars! But to their embarrassment, the Secretary General of the Commonwealth agreed with us. The republicans then tried to incorporate into their republic an ineffectually and highly flawed preservation of the conventions which presently surround the exercise of the reserve powersby the viceregal representatives of the Crown!

In codifying the president’ powers republicans know the president is a politician and will be inclined to exercise his powers guided by political considerations. One so called solution is to make the president powerless, or almost powerless. Common sense would tell you that power does not exist in vacuum. If the president does not have a power, someone else does-usually the prime minister!

And because of their bad experience with the Weimar republic, when President Hindenburg finally appointed Hitler as Chancellor, the present German constitution grants the president few powers. For example the Bundestag, the lower house elects the Chancellor, or the Prime Minister. The Bundestag can also remove the Chancelolr – all they have to do is elect someone else under article 67. The President must do their bidding. To repeat, the President has no discretion in the appointment or dismissal of the Chancellor, not even where the choice of a Chancellor is not obvious because of say, a hung legislature. This is to prevent a repetition of Hindenburg’s appointment of Hitler. However the President does have one discretion. This is now in play, and relates to the only occasion when a Chancellor may obtain an early election. Article 68 provides that in the event of a vote of no confidence in the Bundestag, the President may order a general election. Wishing to avoid the instability of the Weimar Republic, which had led to the Third Reich, this is the only time when an early election is permissible. One assumes this Article refers to a real vote of no confidence, otherwise it could be too easily circumvented. But the Chancellor, Gerhard Schroeder, on 1 July 2005 actually did just that. He engineered an artificial vote of no confidence against the Schroeder government! The vote of no confidence was passed by 296:151 with 148 abstentions procured by the Chancellor from his allies. The Chancellor then asked the President, Horst Kohler, for an early election, which the Chancellor thinks he can win by reversing voting trends against his party in recent state elections. He is no doubt relying on the few precedents which suggest an early election after a loss of confidence favours the incumbent. The President had 21 days to decide whether to grant an election.ion. On 23 July, the President announced to the nation:” I am convinced the constitutional conditions for dissolving parliament exist”. Of course they did not. The Constitution was designed to prevent this sort of thing. Already a member of the Bundestag announced an appeal to the Constitutional Court.

According to Reuters few German legal experts believe the Court will go against the President. Three of the five French republics were attempts to imitate the Westminster system. They all failed. They now have a system which attempts to mix Westminster with the American system. No wonder during the last disastrous presidential system observers were talking about moving to a sixth republic!

Until next time,

David Flint


Germany, Weimar Republic, Westminster System

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