- Cabinet — Executive independence — Executive power — Parliamentary systems — Absolutism — Monarchy — Presidential systems
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1 Most of the democratic constitutions worldwide implement a collegial body of government at the head of the executive branch, which is commonly called ‘cabinet’ or ‘council of ministers’. As a constitutional institution, the powers and competences of the cabinet depend particularly on the form of government of the respective state. Primarily in states with parliamentary systems, the cabinet appears both in domestic affairs and in foreign relations as a synonym for the complete government of a state. Especially, the term ‘cabinet’ describes the collegial structure of the government, which is enacted to deliberate political issues and to either administer the ensemble of the government’s tasks or to advise the head of state (heads of state and government).
2 In particular, the term is used to describe the meetings and the decision making of the constitutionally established government. When the government sits ‘in cabinet’, this usually refers to the formal meeting of the entirety of its members, both to deliberate political issues and to bring about a decision in the adequate form of an official act. Likewise, the term is used to address the collective character of responsibility embodied by the cabinet. This is the narrow sense of the cabinet as a political body presented in this article. In a wider sense, a cabinet may be understood as any constitutionally established college or collegial body, which is appointed with a mandate, either to deliberate or decide a specific scope of function or a special task. This article does not address this wider notion because it may appear in various contexts which are not directly linked with the government of a state.
B. Origins of the Cabinet as a Part of the Organization of a Government
3 Etymologically, the term ‘cabinet’ describes a private working chamber or a piece of furniture to store art or other articles of value. The beginnings of the cabinet system have to be located in the era of absolutism in Europe. In this sense, the cabinet was a private meeting of the ministers of a monarch who possessed their particular confidence (Keith 84). In some cases, the attribute ‘secret cabinet’ was added to enhance its glory (von Rotteck and Welcker 253). For example, in 1706, King August II called The Strong founded a secret cabinet. Even before the French Revolution, some forms of ‘cabinets’ existed, which performed an advisory function vis-à-vis the monarch. For example, the chief minister of King Louis XIII, Armand Jean du Plessis, had a remarkable influence on the policy of the king (Church 173 et seq). The difference in contrast to modern cabinet systems lies in the power of the absolutist or autocratic ruler to usurp every decision of their advisory cabinet.
4 In democratic systems, the idea that only one person at the head of a government holds the entirety of power of the executive branch or embodies even the summa potestas, the potestas legibus soluta, has come out of date. This idea is connected with autocratic, despotic, or dictatorial systems. However, especially presidential systems and, partly, constitutional monarchies (monarchical constitutions) know the lasting function of a powerful person at the head of the executive branch and, in addition, a mainly advisory cabinet. Alexander Hamilton expressed his reservations about a strong cabinet government concisely: ‘The idea of a council to the executive, which has so generally obtained in the State constitutions, has been derived from that maxim of republican jealousy which considers power as safer in the hands of a number of men than of a single man’ (Federalist Papers No 70).
5 Without a codified, written constitution, the specific type of modern cabinet government emerged in the English system. The roots of this classically ‘Westminster style’ cabinet lie in the committee of the Privy Council, which consisted of the leading public officials (Great Officers of States), in particular the chiefs of the main departments: the Lord High Treasurer, Lord High Admiral as well as the Lord Privy Seal and Lord President of the Council (Friedrich 423). The cabinet owed ‘its unity to its selection by the Prime Minister, who is chosen by the sovereign’ (Keith 1). In the past and the present, the cabinet was and is centred as ‘the core of the British constitutional system’ (Jennings 1). This system has been a model for many constitutional systems, as presented in the following.
C. Constitutional Functions of the Cabinet
1. The Cabinet and the Executive Branch
6 In democratic systems, the cabinet is part of the executive branch and, particularly in parliamentary systems, typically stands at its apex. Conventionally, the executive branch is divided into two main functions: the government and the administration. Both sub-functions of the executive branch are connected by the integration of the administration in the hierarchy of the government (Möllers 96 et seq). The political action of the cabinet differs significantly from the decree of an administrative act by a public official, which is statutorily determined and enjoys only, if at all, a limited discretionary power.
2. The Cabinet in Parliamentary and Presidential Systems
7 The distinction between the two main different forms of government, parliamentary and presidential systems, marks at the same time the most important differentiation with regard to the cabinet. In parliamentary systems, commonly the prime minister who is elected by the parliament appoints the ministers as her or his colleagues, whereas in presidential systems, in general, the President appoints their secretaries who are sometimes called ministers (Verney 45 et seq). The most important difference is the following: in parliamentary systems, the head of government is ‘appointed and dismissible by the legislature’ (Dicey 275), whereas in presidential systems, the President is not or only under certain strict conditions removable from office, eg an impeachment because of an indictment in criminal law. Therefore, in presidential systems, the cabinet regularly does not depend on the legislative branch’s confidence (Dowding and Dumont 3; legislative bodies) whereas it is possible and common that the members of cabinet have to find the consent of the parliament regarding their appointment.
8 The function of a cabinet is, for example, clearly demonstrated by Article 61(2) of the Constitution of the Republic of Mauritius: 12 March 1968 (as Amended to 2015) (Mauritius): the ‘functions of the Cabinet shall be to advise the President in the Government of Mauritius and the Cabinet shall be collectively responsible to the Assembly for any advice given to the President by or under the general authority of the Cabinet and for all things done by or under the authority of any Minister in execution of his office.’ Article 88 of the Constitution of the Republic of Zimbabwe: 22 May 2013 (Zim) describes the function of a cabinet: the executive authority ‘vests in the President who exercises it, subject to this Constitution, through the Cabinet’. This description shows the twofold task of the cabinet in presidential systems: Both to advise the President and to be responsible collectively to the parliament for the acts of the executive branch.
3. The Cabinet in Constitutional Monarchies
9 Until today, the originally advisory function of a cabinet is shown by the constitutional provisions of (constitutional) monarchies. For example, Article 12 of the Constitution of the Kingdom of Norway: 17 May 1814 (as Amended to 29 October 2004) (Nor) states that ‘the King himself chooses a Council from among Norwegian citizens who are entitled to vote. This Council shall consist of a Prime Minister and at least seven other Members.’ In systems establishing a constitutional or a hereditary monarchy, the cabinet is commonly under the direction or supervision of the monarch. For example, according to Article 43 of the Constitution of the Principality of Monaco: 17 December 1962 (as Amended to 2 April 2002) (Monaco), ‘government is exercised, under the gracious authority of the Prince, by a Minister of State, assisted by a Government Council.’ In this constitutional setting of an ‘assistant cabinet’, according to Article 44 of the Constitution of Monaco, the Minister of State represents the Prince and oversees the executive services, having for example the police force at their command.
10 In systems establishing a constitutional monarchy, the function of a Prime Minister is the essential link between the monarch as head of state and the cabinet as the apex of the executive branch. According to the informal codification of the conventions of cabinet government in the UK by the Cabinet Manual (Blick 70 et seq, 119 et seq), it ‘is for the Prime Minister to advise the Sovereign on the exercise of the Royal Prerogative powers in relation to government, such as the appointment, dismissal and acceptance of resignation of other ministers and certain statutory powers’ (Cabinet Manual, No. 3.4; royal prerogative). As it is historically handed down, for example the first king of the Hanover dynasty, George I (in office 1714–27) did not participate in the negotiations and proceedings of his cabinet, so that the cabinet was chaired by a leading cabinet member, for instance Sir Robert Walpole, the First Lord of the Treasury (Loewenstein 16). Until today, this function of the Prime Minister as chairman of the cabinet in constitutional monarchies can be found in some constitutions (infra ‘Chairmanship of the Cabinet’).
4. The Cabinet as the Collegial Body of Government
11 Particularly in parliamentary systems, the cabinet holds the executive power (executive powers) and therefore finds its place at the top of the executive branch. For example, Article 65 of the Constitution of Japan: 3 November 1946 (Japan) states: ‘Executive power shall be vested in the Cabinet.’ Likewise, Article 72(2) of the Constitution of the Principality of Andorra: 14 March 1993 (Andorra) says that the cabinet ‘conducts the State administration and is vested with statutory powers.’ In a similar way, Article 67 of the Constitution of the Czech Republic: 16 December 1992 (as Amended to 14 November 2002) (Czech) states that the ‘government is the highest body of executive power’. Expressly, Article 95(1) of the Constitution of the Republic of Cuba: 24 February 1976 (as Amended to 26 June 2002) (Cuba) states that the ‘Council of Ministers is the highest-ranking executive and administrative organ and constitutes the Government of the Republic.’
12 In presidential and especially in semi-presidential systems, some constitutions underline the cabinet as an important part of the executive power besides the president. The presidential power is reduced if a constitution establishes a ‘semi-presidential’ system. According to Duverger’s established definition, a political system is considered as semi-presidential if the constitution ‘combines three elements: (1) the President of the republic is elected by universal suffrage; (2) he possesses quite considerable powers; (3) he has opposite him, however, a Prime Minister and ministers who possess executive and governmental power and can stay in office only if the parliament does not show its opposition to them’ (Duverger 166). This hybrid form of governmental organization unifies elements of the presidential and the parliamentary system.
13 For example, Article 97 of the Constitution of the Republic of Rwanda: 26 May 2003 (as Amended to 17 June 2010) (Rwanda) states that the executive power ‘is vested in the President of the Republic and in Cabinet’. In the same way, Article 27(2) of the Constitution of the Republic of Namibia: 21 March 1990 (as Amended to 13 October 2014) (Namib) states that the ‘executive power of the Republic of Namibia shall vest in the President and the Cabinet.’ This dual concept of executive power reflects the character of semi-presidential systems which know both a powerful presidential and a cabinet policy-making power. These systems are established in Austria, Bulgaria, Finland, France, Iceland, Lithuania, Poland, Republic of Ireland, Romania, Russia, Slovenia, and Ukraine as well as in Armenia, Azerbaijan, Georgia, Kazakhstan, and Kyrgyzstan (see the collections by Elgie; Elgie and Moestrup). In post-colonial African states, some constitutional systems shifted from a presidential to a semi-presidential system, for example in Nigeria.
14 The power to represent the government on the international level is regularly assigned to the head of government or the head of state which may be, in presidential systems, the same person. However, in the course of international conferences and treaty negotiations, the ministers or secretaries are often entitled to represent the government as a whole because of their specific expertise in matters of a certain subject. For example, in this sense, Article 78(4) of the Constitution of Georgia: 24 August 1995 (as Amended to 15 October 2010) (Geor) declares that the ‘Prime Minister and ministers shall represent Georgia in foreign relations within their competence’.
5. Cabinet, Governing Caucus, and Opposition in Parliament: The ‘New Dualism’
15 The parliamentary system is, in the words of the English constitutional theorist Walter Bagehot, ‘not an absorption of the executive power by the legislative power; it is a fusion of the two’ (Bagehot 69; legislative powers). In this parliament-centred conception of separation of powers, the cabinet is formed as ‘a committee of the legislative body selected to be the executive body’ (Bagehot 11); that is why Bagehot called the term ‘cabinet’ a ‘new word’ (Bagehot 11). The close union of the majority in parliament and the cabinet, which is continuously supported by the majoritarian caucus (ie the parliamentary group of a party), is a common feature of the governmental structures of parliamentary systems. In modern theory of parliamentary democracy, this interrelation is labelled as ‘new’ or ‘inner-parliamentarian’ dualism between government and parliament (Verney 40 et seq.). In the words of the Federal Constitutional Court of Germany (Bundesverfassungsgericht), the majority caucus of parliament and the cabinet can be understood as a ‘political unity of action’, whereas the opposition in parliament is the ‘native antagonist’ of the cabinet and the majority in parliament (Oppositionsrechte (2016) (Ger)).
D. General Principles of Cabinet Government
1. Composition of the Cabinet
16 Regarding parliamentary systems, an example of a prototypical constitutional provision regarding the composition of the cabinet is Article 59(1) of the Grenada Constitution Order: December 19, 1973 (as Amended to July 10, 1992) (Gren) which states that the cabinet ‘shall consist of the Prime Minister and the other Ministers’. Similarly, according to Article 16(1) of the Constitution of the Republic of Hungary: 18 April 2011 (as Amended to 26 September 2013) (Hung), the ‘members of the Government shall be the Prime Minister and the Ministers.’ Similarly, according to Article 92(1) of the Constitution of the Italian Republic: 22 December 1947 (as Amended to 20 April 2012) (It), the ‘Government of the Republic is made up of the President of the Council and the Ministers who together form the Council of Ministers.’
17 In presidential and semi-presidential systems, the main difference regarding the composition of the cabinet is the participation of the President in the meetings of the cabinet. For example, the Austrian cabinet is part of the executive branch, which consists according to Article 19(1) of the Federal Constitutional Law of the Republic of Austria: 1 October 1920 (as Amended to Federal Act No 65/2012 of 25 July 2012) (Austria) of the ‘Federal President, the Federal Ministers and the State Secretaries, and the members of the Land Governments’. According to Article 110 of the Constitution of the Republic of Slovenia: 23 December 1991 (as Amended to 27 February 2003) (Slovn), the ‘Government is composed of the President and ministers’.
2. Collective Responsibility of the Cabinet
18 Like it is reflected in Bagehot’s view of the cabinet as a ‘committee of the legislative body selected by the executive body’ (Bagehot 11), the constitutions establishing a parliamentary system provide an ‘osmotic’ or ‘symbiotic’ relation between the majority in parliament and the cabinet (Scholz 676, 679). This ‘cooperative’ parliamentary system (Scholz 676) emanates, in general, in the parliament’s right to dismiss the cabinet by a (qualified) vote. This is a first element of the described responsibility. The cabinet members, each with regard to her or his departmental responsibility, have to be at least answerable to the parliament. This political accountability may be expressed by the possibility of a no confidence vote.
19 In presidential and parliamentary systems, many constitutions expressly derive a collective responsibility of the cabinet to the parliament, for example Article 20(7) of the Constitution of the Kingdom of Bhutan: 18 July 2008 (Bhutan), Article 62 of the Constitution of Burkina Faso: 11 June 1991 (as Amended to 5 November 2015) (Burk Faso), Article 60(3) of the Constitution of the Commonwealth of Dominica: 25 July 1978 (as Amended to 1984) (Dominica), Article 91(2) of the Constitution of the Republic of Fiji: 7 September 2013 (Fiji), Article 106(2) of the Constitution of the Cooperative Republic of Guyana Act (No. 2 of 1980): 14 February 1980 (as Amended to 12 December 1995) (Guy), Article 28(4) of the Constitution of Ireland: 29 December 1937 (as Amended to 4 October 2013) (Ir), and several others.
20 As an additional element of the responsibility, numerous constitutions establish the possibility of an impeachment of the cabinet’s members (removal of officials). For example, the Constitution of the Republic of Iceland: 17 June 1944 (as Amended to 24 June 1999) (Ice), determines in its Article 14: ‘Althingi [the parliament of Iceland] may impeach Ministers on account of their official acts.’ This instrument shows the historic fact that the cabinet shall be responsible for the actions of government whereas the monarch was free from any responsibility. The person of the monarch was inviolable while their ministers were responsible vis-à-vis the parliament (von Gerber 184 et seq). The liberal French philosopher Benjamin Constant presented an ideal concept or scheme of such a system in a constitutional monarchy, in which a council of ministers is entitled to be responsible vis-à-vis the parliament. In systems with a parliamentary monarchy, this rule is established until today: Article 42(2) of the Constitution of the Kingdom of the Netherlands: 17 February 1983 (as Amended to 2002) (Neth) states: ‘The Ministers, and not the King, shall be responsible for acts of government.’ In contrast to this, presidential systems do not indemnify the President in any case from a responsibility vis-à-vis the parliament. The President may be discharged solely via an impeachment procedure which is, in presidential systems, typically the only way to recall her/him from office. This system finds its prominent example in the US constitutional system (Art. 1, section 3 of the Constitution of the United States of America: September 17, 1787 (as Amended to May 7, 1992, see Sunstein). The same is true for semi-presidential systems, as stated by Article 60(1) of the Constitution of the Lebanese Republic: 23 May 1926 (as Amended to 4 September 2004) (Leb): ‘While performing his functions, the President of the Republic cannot be accountable except in his violation of the Constitution, or in case of high treason.’
21 The collective responsibility is part of the three major principles characterizing the cabinet’s tasks described during a famous address before the House of Commons by Lord North on 3 March 1779: its collective responsibility vis-à-vis the parliament, the resulting principle of cabinet unity, and the principle of cabinet secrecy as cited by Cobbett (at 197). These principles have been widely established by positive constitutional law until today, but are supplemented by other important principles.
3. Collegial Unity of the Cabinet and the Principle of Departmental Responsibility
22 It is a general rule that a cabinet has to act homogenously. A unifying feature of the multitude of constitutional systems is the general support of the cabinet operations by each of its members, in other words: the ideal of a ‘common sense’ of the cabinet members, regardless of their respective portfolio. As they are collectively responsible for the action of the cabinet, they have to publicly support every governmental decision made in cabinet. As Woodrow Wilson pointed out with reference to the US system, the head of government ‘must continue to be anxious to surround himself with cabinet officers who shall always substantially agree with him on all political questions’ (Wilson 161). The cabinet ‘has no dissenting opinions and no minority party’ (Campbell 26). In consequence of this collective responsibility, dissenting ministers should either concur or resign. Many constitutional provisions expressly state a collective responsibility, for example, Article 72 of the Bahamas Independence Order 1973 (SI 1973/1080): June 20, 1973 (as Amended to March 8, 2002) (Bah), Article 44(2) of the Constitution of Belize: 20 September 1981 (as Amended to 25 October 2011) (Belize), Article 17(2) of the Constitution of the Republic of Nauru: 29 January 1968 (as Amended to 17 May 1968) (Nauru), Article 75 of the Constitution of the Republic of Trinidad and Tobago Act (Act No 4 of 1976): 29 March 1976 (Trin & Tobago) or Article 42(2) of the Constitution of the Democratic Socialist Republic of Sri Lanka: 31 August 1978 (as Amended to 15 May 2015) (Sri Lanka).
23 In turn, every minister or secretary is in charge to lead and supervise her or his department or ministry. According to Article 108(3) of the Constitution of the Republic of Bulgaria: 12 July 1991 (as Amended to 6 February 2007) (Bulg), each ‘member of the Council of Ministers shall head a ministry, except when the National Assembly resolves otherwise. Each minister shall account for his own activity.’ Article 5 lit c of the Israeli Basic Law: The Government, January 28, 2003 (Isr) states that a ‘Minister shall be in charge of a Ministry; there may be Ministers without Portfolio.’ Article 81–2(2) of the Constitution of Georgia orders that a ‘ministry shall be headed by a minister who adopts decisions independently on the matters falling within his/her competence’. Article 149(1) of the Constitution of the Republic of Poland: 2 April 1997 (Pol) expresses that Ministers shall direct a particular branch of government administration or perform tasks allocated to them by the Prime Minister. A parallel responsibility both of the cabinet in its entirety and every member of the cabinet is for example established by Article 119 of the Political Constitution of the Republic of Peru: 31 October 1993 (as Amended to 5 April 2005) (Peru), which states that the ‘administration and management of public services are entrusted to the Cabinet and to each minister in the matters of his portfolio’. The ‘portfolio approach’ is a widely implemented principle of cabinet organization.
24 In principle, the ministers are, among each other, equally ranking. They all pari passu have a department to lead and their vote carries the same legal weight as each of the other members of cabinet. This own weight of the portfolios fluctuates depending on the weight of the departmental tasks. Despite this, the head of government has to carry out the interconnection and coordination of the departments to realize the unity of the cabinet. In parliamentary systems with a system of proportional vote, the strength of the parties in parliament (their caucus or faction) is mirrored by the strength of the departments, which are sent out by the political parties (political parties or fractions in legislative body).
4. Chairmanship of the Cabinet
25 In presidential systems, the President regularly presides over the cabinet. Article 71 of the Constitution of the Islamic Republic of Afghanistan: 3 January 2004 (Afg) states that the government shall be comprised of ‘ministers who work under the chairmanship of the President’. Article 55 of the Constitution of the Republic of Bénin (Law No 90-32): 2 December 1990 (Benin); rules that the ‘President of the Republic shall preside over the Council of Ministers’. Comparably, Article 199 of the Constitution of the Republic of Panama: 11 October 1972 (as Amended to 27 July 2004) (Pan) states that the ‘Cabinet Council is the meeting of the President of the Republic, who shall chair it, or of the Acting President with the Vice-President of the Republic and the Ministers of State’. Similar provisions can be found in Article 134(2) of the Constitution of the Republic of Angola: 21 January 2010 (Angl), Article 108(1) of the Constitution of the Republic of Bulgaria, Article 10(1) of the Constitution of the Republic of Cameroon: 2 June 1972 (as Amended to 14 April 2008) (Cameroon).
26 In other presidential systems, as for example according to Article 67(1) of the Constitution of the Republic of Seychelles (SI 38 of 1993): 21 June 1993 (as Amended to 12 July 2011) (Sey), the cabinet consists ‘of the Vice-President and Ministers’, but, according to Article 67(2) of the same constitution, the ‘President or, in the absence of the President for any reason, the Vice-President shall preside at meetings of the Cabinet’. According to Article 98(2) of the Constitution of the Kingdom of Spain: 6 December 1978 (as Amended to 27 September 2011) (Spain), ‘the President shall direct the Governments’ action and coordinate the functions of the other members thereof, without prejudice to the competence and direct responsibility of the latter in the discharge of their duties’. This links the cabinet responsibility vis-à-vis the Parliament with the institutional predominance of the President in domestic and foreign policy.
27 In parliamentary and semi-parliamentary systems, commonly the Prime Minister or chancellor presides the sessions of the cabinet. She or he takes the chair in the regular meetings of the council of ministers. This regulation of the chairmanship of the Prime Minister can be found ubiquitously: Article 20(2) of the Constitution of the Kingdom of Bhutan says that the ‘Executive Power shall be vested in the Lhengye Zhungtshog which shall consist of the Ministers headed by the Prime Minister’. Article 118 of the Constitution of the Kingdom of Cambodia: 21 September 1993 (as Amended to January 2008) (Cambodia) states that the ‘Council of Ministers shall be led by one Prime Minister assisted by Deputy Prime Ministers, and by Senior Ministers, Ministers and Secretaries of State as members’. Article 90 of the Constitution of the Democratic Republic of the Congo: 13 May 2005 (Dem Rep Congo) says that the cabinet ‘is directed by the Prime Minister, the Head of the Government’. Article 163(2) of the Constitution of the Arab Republic of Egypt: 18 January 2014 (Egypt) states that the ‘Prime Minister heads the government, oversees its work, and directs it in the performance of its functions.’ Similar rules are established by Article 91(1) of the Constitution of the Republic of Fiji, Article 79(1) of the Constitution of Georgia, Article 45(2) of the Constitution of the Kingdom of the Netherlands, Article 66(1) of the Constitution of Japan, Article 97(2) of the Constitution of the Democratic Republic of São Tomé and Príncipe (Law No 7/90): 5 November 1975 (as Amended to 20 September 1990) (São Tomé and Príncipe), and Article 85 of the Constitution of the Republic of South Africa: 11 October 1996 (S Afr).
28 In constitutional or hereditary monarchies, the monarch in some cases presides over the cabinet. For example, according to Article 48(1) of the Constitution of the Kingdom of Morocco: 1 July 2011 (Morocco), the ‘King presides over the Council of Ministers composed of the Head of Government and of the ministers’. In contrast to this, Article 44 of the Constitution of the Principality of Monaco states that the Minister of State ‘chairs the Government Council with a casting vote’.
29 A specific distribution of tasks is settled by the Lebanese constitutional system, which is based on a compromise of the religious heterogeneity of the state. The so-called Taif Agreement of 1989 ended the Civil War and established the principle of a mutual coexistence of the different religions and sects (Salamey 14 et seq, 127 et seq). In this system of a form of confessionalism, the constitution demands a religion-orientated partition of constitutional tasks: in the former system, the President had to be a Maronite, the Prime Minister a Sunni Muslim, and the Speaker of the Parliament a Shi’ite (Deeb 75). This is a constitutional practice until today. Whereas the President presides over the council of ministers, whenever they wish, without participating in the vote (Art. 53(1) of the Constitution), the Prime Minister presides over the council of ministers regularly (Art. 64(1)).
5. Confidentiality and Secrecy of the Cabinet
30 Whereas parliamentary and judicial deliberation are, in general, public, the sessions of the cabinet as part of the executive branch are commonly confidential. ‘The meetings are not only secret in theory, but secret in reality’ (Bagehot 13). The solidarity, confidentiality and secrecy of the cabinet is necessary to ensure the principle of executive unity (König 63; von Beyme 325). Whereas only some constitutions expressly provide this requirement (Art. 47 of the Constitution of the State of Bahrain: 14 February 2002 (Bahr), Art. 77 of the Constitution of Sudan (Interim National Constitution of the Republic of Sudan): 6 July 2005 (Sudan), Art. 111 of the Constitution of the Republic of South Sudan: 9 July 2011 (as Amended to 1 March 2013) (S Sudan)), most of the reviewed constitutions abstain from a regulation. By-laws or the internal rules of the government may expressly enact the confidentiality of the cabinet, or it may be only an informal practice. Because of this quite arcane nature of deliberation, the rules of negotiation are less formal than for example in parliament where the deliberation of the political agenda and lawmaking is coram publico et pleno.
6. Self-Organization of the Cabinet
31 The determination of the necessary portfolios is part of the self-organization and institutional autonomy of the cabinet. Besides the classical or traditional portfolios (treasury, foreign office, domestic affairs), political, social, economic, ecologic, regional, or any other specific tasks may lead to separate portfolios, for example the Minister of Textiles in the Indian cabinet, the Minister for Mining in the cabinet of Papua New Guinea or the Department of Pontifical Villas of the Vatican City State. In most of the cases, the head of government possesses this right to organize the internal structure of the cabinet and its departmental formation.
32 The autonomy of the cabinet may be limited by legislative action. For example, according to Article 184(2) of the Constitution of the Portuguese Republic (Sixth Revision): April 2, 1976 (as Amended to July 24, 2004), ‘the law may create specialized Councils of Ministers with responsibility for specific matters.’ Article 95 of the Constitution of the Republic of Cuba says that the ‘number, denomination and functions of the ministries and central agencies making up the Council of Ministers are determined by law.’ In presidential systems, there may also be a right of the President to supervise the internal rule of the cabinet, as for example according to Article 134(5) of the Constitution of the Republic of Angola: ‘The Rules of Procedure for the Council of Ministers shall be approved by Presidential decree’.
7. Permanency of the Cabinet
33 A state has to have a permanent government ‘because there is not always need of new Laws to be made, but always need of Execution of the Laws that are made’ as already John Locke stated (Locke No 153). Whereas the parliament commonly underlies the principle of discontinuity, the cabinet has to secure its permanent decision making and the conduct of the departmental action. Very exceptionally, this continuity of government may be interrupted by a government ‘shutdown’ which has the aim to discipline the legislature or the President to pass an appropriation bill (public finance). To avoid the time of an ‘absent’ government, many constitutions provide for an interim competence of a cabinet which has lost its parliamentary support or whose term of office has expired.
E. Formation of the Cabinet
1. Elections and Coalition Bargaining
34 The formation of the cabinet is one of the principal tasks regarding the governmental organization subsequent to elections. Typically, an inter-branch procedure between the legislative and the executive branch arranges the composition of the cabinet, which is a key question that most constitutions adjudicate in a densely formalized manner. Hence, in parliamentary systems, the creation of the cabinet is initially subject to the democratic processes following up an election, which lead to the formation of a newly composed government. Commonly, these informal processes are called ‘coalition bargaining’ (Strøm et al., Maor 110 et seq). The term is not to be understood in a pejorative way because the run-up to the formation of the cabinet is part of the democratic balancing of interests in the aftermath of an election. A major role in this process is regularly attributed to the political parties and their representatives, which try to coordinate and implement their policy with the aim of forming a new government.
2. Selection of the Head of Cabinet
35 In parliamentary, semi-presidential systems and systems establishing a constitutional monarchy, the head of government is commonly called Prime Minister. This expression underlines that she or he is part of the cabinet (‘minister’), but regularly has a specified right to lead the collegial structure of the cabinet and to determine the guidelines of policy. Other denominations for this office are Chancellor, First Minister or President of the Council of Ministers.
36 In parliamentary systems, the head of cabinet is elected by the parliament. She or he depends on the parliament’s confidence expressed by the vote. In many cases, the head of state has to submit a proposal to the parliament. According to Article 80(2) of the constitution of Georgia, the ‘President of Georgia shall, within seven days after the Government’s authority is revoked, nominate a candidate for Prime Minister proposed by the electoral subject having the best results in parliamentary elections’. Comparably, Article 63(1) of the Basic Law of the Federal Republic of Germany: 23 May 1949 (as Amended to 28 March 2019) (Ger), determines that the ‘Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President.’
37 In semi-presidential systems, the President generally selects the head of government. According to Article 92(2) of the constitution of the Republic of Italy, the ‘President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers’. Likewise, according to Article 30 of the constitution of Mauritania, Constitution of the Islamic Republic of Mauritania: July 12, 1991 (as Amended to June 25, 2006), the president ‘appoints the Prime Minister and terminates his functions’. The same is, for example, true for Article 92(1) of the constitution of Lithuania (Constitution of the Republic of Lithuania: October 25, 1992 (as Amended to May 25, 2006)). According to Article 111(1) of the Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014) (Russ), the ‘Chairman of the Government of the Russian Federation shall be appointed by the President of the Russian Federation with the consent of the State Duma,’ the Russian parliament. Article 158 of the Constitution of the Republic of Haiti: 29 March 1987 (as Amended to 19 June 2012) (Haiti) connects the approval by the President with the vote of confidence by the parliament.
38 In (constitutional) monarchies, the monarch appoints the head of cabinet. In the UK, the informal codification by the ‘Cabinet Manual’ provides that the Prime Minister ‘accepts office at a private audience with the Sovereign, at which time the appointment takes effect’ (Cabinet Manuel, No 3.2). In Belgium, the King appoints and displaces the ministers (Art. 96 s 1 of the Coordinated Constitution of the Kingdom of Belgium: February 17, 1994 (as Amended to January 31, 2014)) and the Federal Secretaries of State (Art. 104 s 1 of the Belgian Constitution) who are members of the federal government (Art. 104 s 2 of the Belgian Constitution) but not members of the Council of Ministers (Art. 104 s 3). According to Article 43(1) of the Constitution of Malaysia (Constitution of Malaysia: August 31, 1957 (as Amended to December 27, 2007)), the Yang di-Pertuan Agong (the monarch and head of state of Malaysia) shall appoint a Jemaah Menteri (Cabinet of Ministers) to advise them in the exercise of their functions.
3. Selection of the Further Members of Cabinet
39 In general, the head of government has a particular right to determine her or his secretaries or ministers that surround her or him in the cabinet. Not only in parliamentary, but also in semi-presidential systems, commonly, the Prime Minister is empowered to choose the chiefs of the departments on their own. In this sense, according to Article 55 of the Constitution of the Republic of Latvia: 15 February 1922 (as Amended to 15 November 2005) (Lat), the ministers are chosen by the Prime Minister. Article 87(1) of the Constitution of the Republic of Korea: 12 July 1948 (as Amended to 29 October 1987) (S Kor) states that the ‘members of the State Council shall be appointed by the President on the recommendation of the Prime Minister’. In other parliamentary systems, the Prime Minister is even formally solely responsible to select the members of her/his cabinet. For example, according to Article 79(4) of the Constitution of Georgia, the Prime Minister ‘shall appoint and remove from office other members of the Government.’ The direct appointment of secretaries by the parliament is, in parliamentary systems, comparably rare. For example, Article 112(1) of the Constitution of the Republic of Slovenia says that ministers are ‘appointed and dismissed by the National Assembly on the proposal of the President of the Government’.
40 In presidential systems, the appointment of members of cabinet is, in general, a condominial affair of the President and the parliament. A well-known archetype of this system is the confirmation with ‘advice and consent’ by the Senate laid down in the Appointments Clause of the US constitution (bicameralism). In other presidential systems, the appointment of ministers is not arranged as an inter-branch procedure between the executive and the legislative branch, but remains solely in the hands of the president. For example, according to Article 15 of the Constitution of the Republic of Iceland, the ‘President appoints Ministers and discharges them. He determines their number and assignments.’ Article 46 of the Constitution of the Republic of Zambia: 2 August 1991 (as Amended to 28 May 1996) (Zam) says that there ‘shall be such Ministers as may be appointed by the President’. The same power is given to the President of Venezuela (according to Art. 236 no 3 of the Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (Venez)). An example of a powerful President’s right to select the members of cabinet is the French constitution. According to Article 8(1) of the Constitution of the French Republic: 28 September 1958 (as Amended to 23 July 2008) (Fr), the council of ministers of the Prime Minister is entirely configured by the President.
F. Termination of the Cabinet
41 The termination of the cabinet knows mainly two different procedures: on the one hand, a large number of cabinet terminations results from regular elections causing a change of governmental leadership (Damgaard 305). On the other hand, the dissolution of the cabinet may be initiated by a constitutional action of the President, parliament, or another constitutional institution.
42 Often, the dissolution of the cabinet by an act of parliament is only possible by replacing the Prime Minister with another candidate instead of only deselecting her or him. For example, according to Article 105(1) of the Constitution of the Republic of Albania: 21 October 1998 (as Amended to 18 September 2012) (Alb), ‘one-fifths of the Members of Assembly is entitled to present for voting to the Assembly a motion of no confidence towards the incumbent Prime Minister, by proposing a new Prime Minister.’ Conventionally, the resignation of office of the Prime Minister enacts the dissolution of the entire cabinet, as for example Article 83(2) of the Constitution of the Republic of Côte d’Ivoire: 23 July 2000 (as Amended to 2004) (Côte d’Ivoire) expressly stipulates.
43 Typically for a semi-presidential system, for example, Article 50 of the Constitution of the French Republic determines: ‘When the National Assembly passes a resolution of no-confidence, or when it fails to endorse the Government programme or general policy statement, the Prime Minister shall tender the resignation of the Government to the President of the Republic.’ According to Article 155 of the Constitution of the People’s Democratic Republic of Algeria: 28 November 1996 (as Amended to 10 April 2002) (Alg), if the motion of censure is approved by a majority of two thirds of the deputies of the People’s National Assembly (Art. 154), the Prime Minister must tender the resignation of his government to the President of the Republic. Like for example in Article 97 of the Constitution of the Republic of Estonia: 28 June 1992 (as Amended to 17 October 2005) (Est), the parliament (the Riigikogu) ‘may, by a resolution carried by a majority of its members, express no confidence in the Government of the Republic, the Prime Minister, or a minister.’ An interim, transitional, or ‘caretaker’ government may rest in office or may be established after the official termination of the cabinet’s term of office, as for example Article 80(1) of the Constitution of Georgia states.
44 Even though a uniform meaning of ‘cabinet’ cannot be established in comparative constitutional law, several common and recurring elements of the governmental structure have been identified by a comparison based on the constitutional texts.
45 The cabinet reflects the broad portfolio of responsibilities, which the government bears. It is an important constitutional institution, which articulates and operates the governmental agenda. The members of cabinet are representatives of the respective government of a state. In parliamentary systems, the cabinet is at the same time a powerful institution forming the executive branch by its hyphenation to the parliament. That is why the term ‘cabinet’ often figures as a synonym of the government. In presidential systems, the cabinet constitutes an essential substructure of the presidential governance to set executive and administrative tasks in action. The form of government as part of the political system is the key element in classifying the powers of a cabinet, without denying that other aspects, as for example the mode of government, eg a federalist (federalism) or centralist state (central government), the voting system, or the system of political parties are significant criteria to determine the functions of the cabinet.
46 The legal analysis has shown that in almost every constitutional system the collegial structure of the cabinet supports a government by discussion and deliberation and enables a basic condition of a democratic state: the compromise. As the main function of a constitution is to interconnect the political and the legal system (Luhmann 176), the different rationales of a political deliberation and a legal decision are regularly intertwined by the institutional policy of the cabinet: on the one hand, the cabinet as a central part of the government is an important constitutional institution to express the political processes. On the other hand, especially in parliamentary systems, the members of the cabinet and the Prime Minister have to decide on fundamental political issues. Given these differences and interrelations, in both major variations of democratic systems the cabinet has the role of an operative centre of the executive branch.
47 Regarding its institutional legitimation, the cabinet relies on the confidence either of the parliament or of the president: in parliamentary systems, the cabinet depends on the confidence of the directly elected legislature whereas in presidential systems, the members of cabinet have to maintain mutual trust to the president. In presidential systems, the distinction of the presidential executive and the separately elected legislature underlines the duality of the democratic legitimation of the two branches of power (Korn 14 et seq). In parliamentary and semi-presidential systems, the Prime Minister as an ‘intermediary’ person connects and conciliates the relations between the legislature and the cabinet. As Walter Bagehot pointed out, the cabinet in almost every case needs a backing of the majority in the parliament to be able to establish an effective government. Therefore, ‘the common concept of a necessary contrast between parliament and government as a requirement of separation of powers is misguided’ (Möllers 113). The relations between executive and legislative are essential to ensure and operate the enforcement of the law.
48 To give a résumé, the observation of Sir Ivor Jennings that the cabinet ‘is the directing body of the national policy’ (Jennings 228), the ‘pivotal point’ that centres the political process (Friedrich 428) can be verified having analysed a large part of the constitutions around the globe. Nevertheless, presidential systems know the executive prerogative of the President in which the executive power is vested. Already the Aristotelian term ‘mixed government’ (Politeia VI, 1316b–1317a) shows that a categorical systematization with distinct lines of differentiation between the systems of government cannot be developed. Furthermore, the normative arrangement may be accompanied by a practice that is not necessarily congruent with the constitutional text. Therefore, a comparative approach to the constitutional law of the executive branch has to know its inherent limits.
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