No confidence in Westminster republics

Republican constitutions often attempt to imitate the highly successful Westminster system, which is used in what are, according to the UN Development Index, the world’s most successful countries.

Five of the world’s seven oldest continuous democracies are Westminster systems. The other two, the United States and Switzerland, are republics which do not attempt to imitate the Westminster system. Their record of stability is somewhat tainted by their civil wars.

Germany's first attempt at a Westminster republic, the inter-war Weimar republic, is generally assessed as a failure. The Weimar republic was marked by serious instability, financial crises and President Hindenburg's appointment of Adolf Hitler as chancellor.

In the post war period, Germans were faced with the problem of ensuring the mistakes of the Weimar republic were not repeated. They saw their parliamentary constitution needed a president as a check and balance against the chancellor and the government, who would control a majority in the lower house, the Bundestag. But they also realised that an elected president is another politician. This is equally so whether the president is elected directly by the people, or by a college.

The drafters of various republican constitutions have devised all sorts of colleges. Indeed this seems to be part of the fun in being a republican, if we can call that fun.

Under the present German constitution, the president is 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 means of choosing a president is similar to that preferred in Australia in the years leading up to the 1999 referendum in that it too was not a direct election model.

Germany's current president, Horst Köhler, was elected on March 4, 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 the small liberal party, the Free Democratic Party of Germany (FDP).

With opposition parties controlling a majority of votes in the Bundesversammlung, the result of the vote should have been a foregone conclusion. It turned out closer than expected. Köhler defeated Social Democrat candidate Gesine Schwan on the first ballot by 604 votes to 580. There were 20 votes for minor candidates, and one elector was absent because of a heart attack.

The result is comparable to John Howard having a Labor President, or Paul Keating 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 Crown provides - a leader above politics?

In Australia, former politicians have made this conversion on appointment as governor-general. This is because they are appointed by - and removable by - their sovereign, or 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 because he was a Labor Premier of NSW. Sir Robert Menzies, the then Leader of the Opposition, saw to it that his party’s criticisms ceased after Sir William took office. When Menzies, having satisfied all constitutional conditions, sought a double dissolution in 1951, some observers thought McKell would act politically. They believed he would decline the request, and instead act in the interests of the Labor Party. It was widely believed the subsequent election would deliver control of both houses to the Liberals.

But Sir William behaved impeccably, and granted the double dissolution. His duty, his personal allegiance, was to his King, 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 republics is to codify the president's powers - to 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 monarchists pointed this out we were denounced as liars. But to the embarrassment of the republicans, the Secretary General of the Commonwealth agreed with us. The republicans then tried to incorporate into their republic an ineffectual, highly flawed preservation of the conventions which presently surround the exercise of the reserve powers by the vice-regal representatives of the Crown.

In codifying the president’s powers, republicans acknowledge the president is a politician, who may well be guided by political considerations in the exercise of his powers. One so-called solution is to make the president powerless, or almost powerless. Common sense would indicate power does not exist in vacuum. If the president does not have a power, someone else does. Usually the prime minister.

Because of their bad experience with the Weimar republic, the present German constitution grants the president few powers. For example the Bundestag (the lower house) elects the chancellor. The Bundestag can also remove the chancellor - 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, as in the case 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. This is designed to avoid the instability of the Weimar Republic, which led to the Third Reich, and is the only time 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 on July 1, 2005, the Chancellor, Gerhard Schroeder, did just that, engineering an artificial vote of no confidence against the Schroeder Government. The vote of no confidence was passed 296 to 151, with 148 abstentions procured from among the Chancellor's allies. Chancellor Schroeder then asked the President, Horst Kohler, for an early election. Schroeder thinks he can win the election by reversing voting trends against his party in recent state elections. He is no doubt relying on 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. On July 23, the President announced to the nation: “I am convinced the constitutional conditions for dissolving parliament exist.” Which, of course, they did not. The Constitution was designed to prevent this sort of thing. Already a member of the Bundestag has 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. All failed. France now has a system which attempts to mix Westminster with the American system. No wonder observers are talking about moving to a sixth republic.