7. The distinction between parliamentary and other forms of government is primarily a classification problem which as such has little relevance to constitutional lawyers confronted with issues of positive law. The answer to a specific constitutional question, ie whether parliament has or does not have certain powers, has to be found by interpreting the pertinent constitutional provisions on the distribution of powers between the legislature and the executive, and will only exceptionally be influenced by general considerations on the nature of the governmental system established by the constitution. The other main aspect of the distinction, ie the debate on the respective advantages and disadvantages of parliamentary and presidential government, is of interest mainly to the drafters of constitutional texts who have to decide on the form of government they want to adopt; it concerns issues of political expediency and desirability at least as much as issues of legal coherence or constitutional propriety. There are, however, two general issues which have featured greatly in the debates on the constitutional regulation of parliamentary systems, one of a conceptual and the other of a more practical nature. The first debate concerns the relationship between parliamentary government and the separation of powers, the second concerns the role and effectiveness of constitutional regulation as a means to ensure governmental stability.
1. Separation of Powers
8. One of the keystones of modern constitutional thinking since its formulation by the French enlightenment philosopher Charles de Montesquieu in the eighteenth century, the concept of separation of powers rests on the distinction of three basic functions of the state, defined in very general terms as the lawmaking function (lawmaking and legislation), the function of execution and implementation of laws (implementing legislation), and the function of interpretation of the law and the administration of justice; and their distribution among the corresponding branches of government, ie the legislature, the executive, and the judiciary, in a way which enables them to control and check each other in the exercise of their respective powers (‘le pouvoir arrête le pouvoir’). The principle of separation was also meant to apply—and even primarily so, since the power of the judicial branch in Montesquieu’s view was not really a ‘power’ (‘en quelque facon nulle’, as he put it)—to the relations between the executive and the legislature, which had to be ‘balanced’ to allow the system as a whole to function properly.
9. From this view arose a ‘dualist’ interpretation of the parliamentary system, in which on the one hand the holder of the executive power—the hereditary monarch in the constitutional monarchy and later the elected President in the Republic—and on the other the legislature, acted as checks on each other in the exercise of their respective powers: a dualist view which was the dominant strand in French political thinking in late nineteenth century and staged a comeback following the ignominious collapse of the seemingly ‘unbalanced’ parliamentary regimes of the Third and Fourth Republic. The French Constitution of 1958 goes to great lengths to implement a ‘true’ separation of powers between the executive and the legislature, establishing in the process a hybrid model of government which has proved influential in northern, western, and central Africa, and the Middle East, but also in many parts of Eastern and south-eastern Europe after 1989. It does so by emancipating the government to the largest extent possible from parliament and the parliamentary majority. Membership in the government is incompatible with membership of parliament (Art. 23 French Constitution; incompatibility of office), which means that a French MP has to vacate his parliamentary seat if he/she is appointed as government minister. The government—through the prime minister—has the right not only to initiate legislation to the same extent as members of parliament, it also has the constitutional right to set the parliamentary agenda and determine the order in which legislative bills are discussed in the chambers (Art. 48). Even more draconian, the prime minister may decide at any stage of the proceedings to make the vote of a bill a matter of confidence before the National Assembly. If that happens, the discussion stops and the bill is considered to have passed unless a censure motion against the government is tabled within twenty-four hours and adopted by the majority of members of the house (Art. 49(3)).
10. But the French Constitution does not limit itself to ‘rationalizing’ the legislative procedure and the exercise of parliamentary control powers. In addition, it establishes a popularly elected presidency which through the exercise of its various independent powers shall arbitrate in conflicts between the government and the legislature, especially by using the presidential power to appoint and dismiss the prime minister and other members of the cabinet (Art. 8 French Constitution), and the discretionary competence to dissolve the National Assembly in case of institutional deadlock (Art. 12). In essence, this means that the parliamentary system of the Third and Fourth Republic has been replaced by a semi-presidential or hybrid system which in practice puts the president in a dominant position as long as he or she is supported by a majority in parliament—which has been the rule since 1958, and especially since the synchronization of the presidential and parliamentary terms in 2002. In doing so, the French Constitution has effectively succeeded in giving a new lease of life to older concepts of a ‘balanced’ or ‘dualist’ parliamentary system which had been largely discredited following the dismal failure of the Weimar Republic in Germany in the interwar period.
11. The ‘dualist’ concept of parliamentarianism has been criticized for its lack of understanding of how modern parliamentary systems function. The latter’s defining characteristic is not the strict separation of executive and legislative powers, but close cooperation between the government and the parliamentary majority in the exercise of both executive and legislative powers, on the basis of a competitive multi-party system in which the parties represented in parliament are either part of the government or of the opposition. As Walter Bagehot, who wrote in the second half of the nineteenth century at the height of the Victorian age, pointed out:
The efficient secret of the English constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers … The connecting link is the cabinet. By that word we mean a committee of the legislative body selected to be the executive body … The legislature chosen, in name to make laws, in fact finds its principal business in making and in keeping an executive (Bagehot 9, 10).
12. It might seem as if the foregoing definition of the modern parliamentary system can hardly be reconciled with the principle of separation of powers, at least not in its traditional version. However, most political scientists and constitutional scholars agree that separation of powers, understood as checks and balances, also has a role to play in a parliamentary system operating on the basis of close cooperation between the government and the parties forming the majority in parliament. This is uncontroversial with regard to the relations between the political branches and the judiciary, whose independence and impartiality are indispensable prerequisites of a functioning rule of law. But checks and balances also have a useful role to play in the relations between the government and parliament in a parliamentary system. However, in this respect it is important to recognize that a fundamental distinction exists within parliament between the majority, which has as its main political mission the support of the government and its agenda, and the opposition parties whose role consists in monitoring and criticizing the government’s policies and in proposing alternatives. This suggests that one of main challenges of the constitutional regulation of parliamentary government today is the recognition and proper definition of the role and the rights of the opposition, so as to allow it to present its political alternatives freely and to become and remain a credible alternative to the government and its parliamentary majority. The special status and the corresponding rights of the parliamentary opposition are increasingly recognized and explicitly guaranteed in recent constitutional regulation (Art. 10 of the Constitution of Morocco; Art. 18 Constitution of Bhutan).
2. Governmental Stability
13. As the government is dependent on the confidence of the legislature and can in principle be dismissed from office by a vote of censure or no confidence at any point of the legislature, governmental stability raises more difficult problems in parliamentary than in presidential systems where the head of government is elected for a fixed, constitutionally prescribed term and may only be removed from office before the end of term in exceptional circumstances. However, this problem emerged fully only in the twentieth century, as parliamentary systems started to develop in the context of stable constitutional monarchies and in some cases, namely in the British case, enjoyed a gradual and rather smooth transition to a fully democratic system based on majority voting and a stable party system organized around two big parties which could alternate in government. Thus, the British parliamentary system was able to evolve on the basis of uncodified conventions and practices most of which have never been laid down in any statute, but are recorded in treatises and manuals on parliamentary practice, of which Erskine May’s treatise on the ‘Law, Privileges, Proceedings and Usage of Parliament’ has been the most influential, acting as a rule book for parliamentarians.
14. The situation was fundamentally different in countries in continental Europe, which introduced parliamentary forms of government in a context where the stabilizing role of the monarchy had already been weakened or even disappeared totally; starting with France, which experienced chronic governmental instability throughout much of the period from 1870 to 1958. France and other continental countries often used a proportional voting system in parliamentary elections, which resulted in a fragmented party system and unstable multi-party government coalitions which rarely lasted a full legislature. The fragmentation of party systems, sharp ideological polarization, the rise of extremist political parties, and weak coalition governments all contributed to a high degree of political instability and obstructed the smooth functioning of parliamentary government in many places during the interwar period. In response to this disastrous experience, the drafters of the constitutions adopted in Western Europe after World War II have also tried to improve the conditions for the proper functioning of the parliamentary system by means of constitutional regulation. They have included detailed rules on the formation of the government, the position and the prerogatives of the head of government, and the circumstances and procedures in which the principle of ministerial responsibility may be invoked by parliament in the constitutional texts, thereby seeking to ‘rationalize’ the way in which the parliamentary system functions in order to achieve a higher degree of governmental stability. To this end they use several devices, the most important of which are: the strengthening of the position and the powers of the prime minister, detailed rules on the formation of a new government to make sure it enjoys the support of a parliamentary majority, and the introduction of restrictions on parliament’s power to topple a sitting government by (simple) majority vote.
15. The strengthening of the position of the head of government has in many instances led to the express constitutional recognition of his/her leadership role in the cabinet. The prime minister ‘directs the work of the government’ (eg Art. 21(1) French Constitution; Art. 98(2) Spanish Constitution; Art. 55(1) Constitution of Poland; Art. 107(2) Constitution of Romania), and the chancellor ‘determines the general guidelines of policy’ (Art. 65 German Basic Law). Moreover, it is the head of government with whom the final decision rests whether to ask parliament for a vote of confidence and thus to put the government’s existence on the line (Art. 49 French Constitution; Art. 112(1) Spanish Constitution; Art. 68 German Basic Law). If the prime minister resigns, the other members of the government also lose their offices and a new government has to be appointed (Art. 69(2) German Basic Law; Art. 101(1) Spanish Constitution; Art. 70 Constitution of Japan; see also Art. 8(1) French Constitution).
16. Secondly, constitutional provisions on the formation of the government are much more explicit with regard to the level of parliamentary support needed for a new cabinet to enter office, thus stressing the link which in a functioning parliamentary system ties the government to its parliamentary majority. This is reflected in constitutional regulation in two ways: at the procedural level, the constitution may require the person in charge of proposing/appointing the prime minister—normally the head of state, in some cases the speaker of parliament—to consult with the parties represented in parliament before he/she exercises the right of appointment (eg Art. 99(1) Constitution of Spain; Art. 187(1) Constitution of Portugal; Art. 61(2) Constitution of Finland). The constitution may also explicitly limit the discretion of the head of state by asking him to appoint the candidate of the party or the coalition of parties with a majority in parliament (eg Art. 76(1) Constitution of Nepal; Section 37(2) Constitution of Belize). Moreover, the constitutional provisions frequently require a formal vote of parliament demonstrating its support for the new government, either in the form of the election of the designated candidate for the office of prime minister or chancellor, by the directly elected chamber as a necessary condition for its appointment (Art. 61(1) Constitution of Finland; Art. 63 German Basic Law), or in the form of a parliamentary confirmation vote on the government and/or its political program immediately following its appointment (Art. 154(2) Constitution of Poland; Art. 103(2) Romanian Constitution). Some constitutions go to great lengths to ensure that the new government disposes of a stable majority in Parliament: the election or conformation vote must take place by absolute majority, and only if several attempts to elect or to confirm a new head of government by absolute majority have failed may the election or confirmation proceed with a relative majority of votes (Art. 63 German Basic Law; Art. 61 Constitution of Finland; Arts 153 and 154 Constitution of Poland).
17. By contrast, Swedish constitutional regulation reveals a more relaxed attitude towards minority governments which is often referred to as ‘negative parliamentarianism’. It is in the rules governing the appointment and the dismissal of the government that the principle of negative parliamentarianism is most visible. According to Chapter 6, Article 4 of the Instrument of Government, the Speaker summons for consultation representatives from each party group and confers with the deputy speakers before placing a proposal before Parliament which shall then proceed to vote on the proposal within four days, without consultation of any parliamentary committee. If more than half of the MPs (ie 175) vote against the proposal, it is rejected; in the opposite case, it is deemed to have been adopted. This means that from a strictly constitutional viewpoint no positive vote in favour of the prime ministerial candidate is needed, provided more than 174 MPs vote against him. Typically, this procedure takes place after a parliamentary election, but it is applicable also on other occasions on which a vacancy in the office of Prime Minister occurs. In essence this means that, in Sweden, a government must not necessarily enjoy the support of more than half of the MPs, as long as the majority of the MPs (ie 175) is not going to vote against it. Swedish authors see in this internationally unusual kind of parliamentary regulation the core of the modern Swedish parliamentary system (Nergelius 72).
18. Finally, contemporary constitutions try to make it more difficult for opposition parties to bring down a government before the end of the parliamentary term by formalizing the procedures in which the principle of governmental or ministerial responsibility may be invoked. Whereas in the early stages of the history of parliamentary government such questions were largely left to parliamentary practice and the rules of procedure adopted by the respective parliamentary assembly, the conditions in which parliament may withdraw its confidence from the government is now often subject to strict constitutional regulation. The head of government normally has a wide discretion in deciding whether, and on which issue, to ask the parliamentary assembly for a vote of confidence. By contrast, the confidence or censure motions brought by members of parliament are subject to a number of strict procedural requirements: they must be signed by a minimum number of MPs to be admissible; a vote on the motion may not take place immediately, but only after a ‘cooling off’ period’ has lapsed, which allows MPs to reflect properly on the potential consequences of their decision, for themselves, and the country; confidence can only be withdrawn from the government by qualified majority vote (absolute majority of the house membership). Additionally, some constitutions prescribe that for a censure motion to proceed, it must contain the name of the person which shall replace the incumbent head of government, so that it is not possible to turf out one government without naming its replacement (constructive vote of no confidence, see Art. 96(2) Constitution of Belgium; Art. 67(1) German Basic Law). MPs that have signed a censure motion which has been rejected may be barred from bringing a new one before the end of a constitutionally prescribed waiting period (Art. 49(2) French Constitution).
19. In addition to the above-mentioned constitutional reforms which were introduced after World War II to improve the functioning of parliamentary regimes and to enhance governmental stability, other measures have been taken by way of constitutional legislation with the aim of curbing parliamentary malpractices and their negative effects on stable government. These include the so-called anti-defection laws which are particularly popular in South Asia (Tenth Schedule to the Constitution of India; Art. 63-A Constitution of Pakistan; Art. 98(e) Constitution of Nepal) but have also been embraced by other parliamentary regimes old and new. Under these provisions, MPs are barred from switching their party loyalty during the legislative term: if they opt to leave the party on whose list they were elected and/or switch to another party, they automatically lose their parliamentary seat. In the Indian and other cases, the relevant constitutional provisions go even further. If a direction is issued by the leadership of the parliamentary party to vote in a particular manner on a matter before the assembly, the party member is under a constitutional duty to comply with the direction of the leadership. If the MP abstains or votes contrary to the instruction given by the leadership, he/she may be expelled from the party and lose his/her parliamentary seat. While these measures are designed to combat rampant horse-trading and corruption in daily parliamentary life, they also strengthen the hand of the party leadership in the enforcement of party discipline, and thus reduce the risk to government stability resulting from ‘fleeting’ parliamentary majorities (Khanna and Shah 105). However, they do so at significant cost, calling into question the principle of free speech of the individual members of parliament, which is one of the cornerstones on which parliamentary democracy was originally built.