The German Chancellor and the Constructive Vote of No Confidence

Article 81: legislative emergency. Where a confidence motion has failed and the Bundestag has not been dissolved, the President may on the proposal of the Government and with the consent of the Bundesrat declare a state of legislative emergency for a Bill, which may then be enacted without the Bundestag for a limited period. It has never been used.

How the pair works

Article 67 makes the Chancellor almost impossible to remove against his will. Article 68 gives him a route to an election when he wants one, and that route has been used in a way worth knowing: a Chancellor who wants a dissolution arranges to lose a confidence vote, because article 68 gives no other route to an early election. The German President and the Federal Constitutional Court have both had to consider whether such an engineered defeat is legitimate.

The result is a system in which the executive is stable and the legislature's power to remove it is conditioned on a positive alternative. Constructive votes have been attempted twice and succeeded once, in 1982.

A worked example

A coalition breaks up and the Chancellor loses his majority. Four parties are in the Bundestag and no two of them can agree on a successor.

In India the government would fall on a no confidence motion carried by a simple majority, and the President would look for an alternative or dissolve.

In the United Kingdom the same, subject now to the Dissolution and Calling of Parliament Act 2022.

In Germany nothing happens. The motion under article 67 cannot succeed without a majority for a named successor, and there is none. The Chancellor continues in office as a minority government. If he wants an election he must lose a confidence vote deliberately under article 68 and ask the President to dissolve.

That is the design working exactly as intended, and it is also the standing criticism of it: a Chancellor whom a majority opposes remains in office.

The cases

Facts. The Lisbon judgment, 2 BvE 2/08 and others, decided on 30 June 2009, concerned the Act approving the Treaty of Lisbon and the accompanying domestic legislation, challenged as incompatible with the Basic Law and in particular with the democratic principle and the powers of the Bundestag.

Held, by the Second Senate. The Treaty was compatible, but the accompanying domestic legislation was insufficient in so far as it did not give the Bundestag and the Bundesrat adequate rights of participation. The Court reserved to itself an identity review: under article 23(1) third sentence read with article 79(3) it reviews whether the Basic Law's constitutional identity, its inviolable core, is respected, exercising that jurisdiction in accordance with the Basic Law's openness to European integration.

Why it matters here. It shows the Basic Law's central preoccupation, that the elected chamber must retain the substance of decision, applied to a modern problem, and it links the executive chapters to article 79(3).

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian Council of Ministers as responsible to the legislature with a formal head of State.

Held. The real executive power is in the Council of Ministers, responsible to the legislature.

Why it matters here. The Indian rule is unqualified responsibility by simple majority. Article 67 qualifies it, and the comparison is the answer to a question asking how a parliamentary system can be stabilised.

Distinctions

What beginners get wrong

"Germany has no vote of no confidence." It has one, in article 67, and the vote must simultaneously elect a successor.

"The German President is powerful." He is not. Articles 54 to 61 give him a five-year term, election by a Federal Convention, and largely formal functions; his one moment of real discretion is under articles 63 and 68.

"Article 65 makes the Chancellor a president." It gives him the general guidelines of policy, and each minister runs the department independently within them. It is a stronger position than a Prime Minister's in theory and constrained in practice by coalition agreements.

Limits and criticism

Stability at the cost of responsiveness. A Chancellor opposed by a majority stays in office, which is a defect if you think a legislature should be able to end a government.

Article 68 is used artificially. The only route to an early election is a deliberately lost confidence vote, which requires the Chancellor to ask his own supporters to abstain.

Coalition agreements do the real work. The Kanzlerprinzip in article 65 is qualified in practice by written coalition agreements that allocate policy areas among parties, and those agreements are not law at all.

Quick revision

1. Article 63: the Chancellor is elected by the Bundestag on the President's proposal, with a three-stage procedure.
2. Article 64: ministers appointed and dismissed by the President on the Chancellor's proposal.
3. Article 65: Kanzlerprinzip, Ressortprinzip, Kollegialprinzip.
4. Article 67: lack of confidence only by electing a successor by a majority of the members, with forty eight hours' interval.
5. Article 68: a lost confidence motion permits dissolution within twenty one days, and the right lapses if the Bundestag elects another Chancellor.
6. Article 81: legislative emergency, never used.
7. The design answers Weimar, where a negative majority could dismiss a Chancellor without agreeing on a successor.

Test yourself

1. State article 67 and explain the problem it solves. The Bundestag may express its lack of confidence in the Chancellor only by electing a successor by a majority of its members and requesting the President to dismiss him, and the President must comply. It answers the Weimar experience, in which a Reichstag majority existed that was against every possible government and for none, so that governments could be destroyed and none could be formed.

2. How does a German Chancellor obtain an early election? Under article 68. He moves a vote of confidence and it is not supported by a majority of the members; the President may then, on his proposal, dissolve the Bundestag within twenty one days. The right of dissolution lapses if the Bundestag elects another Chancellor by a majority of its members. Because there is no other route, a Chancellor seeking an election must arrange to lose the vote.

3. What are the three principles in article 65? The Chancellor determines and is responsible for the general guidelines of policy; within those guidelines each minister conducts the affairs of his department independently and on his own responsibility; and the Federal Government decides differences of opinion between ministers.

4. Should India adopt the constructive vote of no confidence? The argument for it is stability: India has had governments fall without any alternative being available, and article 67 would prevent that. The argument against is that it entrenches a government a majority opposes, and that India's own answer to instability was different, the Tenth Schedule, which disciplines defection rather than the confidence vote. An answer should give both and note that the German rule would require amending article 75(3), which makes the Council responsible to the House without qualification.