Germany has become the new Belgium now that the Merkel III Ministry, a Grand Coalition of Social Democrats and Christian Democrats that should only have lasted from 2013 to 2017, has become a Belgian-style long-term caretaker government. Caretaker Chancellor Merkel affirmed her commitment in an address on New Year’s Eve to “quickly building a stable government for Germany in the new year” — but this is, of course, not entirely within her control.
Worse still, instead of hastening the demise of this caretaker ministry, Germany’s Basic Law, its codified constitution has, in fact, entrenched and enabled this Belgian-style sclerosis. The constitutional conventions which apply to any Westminster Parliament would have rectified Germany`s peculiar problem, outlined below, months ago, but Continental Parliamentarism depends upon codified constitutions and a civil law tradition. In short, Continental parliaments are prone to litigious absurdity, sometimes because codified constitutions can never cover every contingency, or sometimes because — as in this case — the codified constitution enables deadlock.
The Basic Law and the Limitations of Codifying Constitutional Conventions
Germans elected their 19th Bundestag on 24 September 2017. Under Article 39(2) of the Basic Law, any new Bundestag must convene within 30 days; the 19th Bundestag first sat and elected its Speaker on 24 October 2017, thereby upholding the constitutional requirement. Normally, under Article 69, the convening of the new Bundestag also marks the end of the term of the Chancellor and Ministry.
Article 69 [Deputy Federal Chancellor – Term of office]
(1) The Federal Chancellor shall appoint a Federal Minister as his deputy.
(2) The tenure of office of the Federal Chancellor or of a Federal Minister shall end in any event when a new Bundestag convenes; the tenure of office of a Federal Minister shall also end on any other occasion on which the Federal Chancellor ceases to hold office.
But paragraph 2 depends upon the timing of the inter-party negotiations through which politicians forge coalition governments behind closed doors. If parties fail to negotiate an agreement within 30 days, then the President would invoked Article 69(3) and order the Chancellor and the other ministers to remain in office as a caretaker ministry.
(3) At the request of the Federal President the Federal Chancellor, or at the request of the Federal Chancellor or of the Federal President a Federal Minister, shall be obliged to continue to manage the affairs of his office until a successor is appointed.
In Canada, Australia, and New Zealand, the convening of the new parliament after a general election would bring a swift end to the caretaker period of a minority government or coalition government, because either the incumbent government would win the confidence of the House in the Address-in-Reply within a week, or the incumbent government would lose that vote and almost certainly have to resign. (And a majority government would obviously never have faced the Caretaker Conundrum in the first place). But this is not true in Germany. Convening the 19th Bundestag does not, in and of itself, mark the end of the caretaker government because the Basic Law also mandates procedures for Confirmation Voting under Article 63 — which also leaves the timing of that confirmation vote under the discretion of the President of Germany.
Article 63 [Election of the Federal Chancellor]
(1) The Federal Chancellor shall be elected by the Bundestag without debate on the proposal of the Federal President.
In other words, German parliamentarism still recognizes, in its own mirthless and literal-minded Teutonic way, the principle of continuity of government and that there must always be one ministry in office at any given time. President Steinmeier invoked Article 69(3) and ordered Chancellor Merkel to remain in office, thereby turning the Merkel III Ministry into a caretaker. But, crucially, Steinmeier has also exercised his implied discretion under Article 63 and has simply decided not to propose a Chancellor to the 19th Bundestag at all! Steinmeier would like to delay invoking Article 63 until Merkel’s Christian Democrats resumed negotiations with Martin Schultz’s Social Democrats in early January 2018.
Professor Achim Hurrelmann of Carleton University, an expert on German politics, confirmed that this delay under Article 63 has no precedent since the adoption of the Basic Law in 1949.
But in practical terms, this unprecedented duration of a caretaker ministry only reinforces the fact that the President cannot stall indefinitely and would become unworthy of his office if he allowed Germany to descend into Belgian-like constitutional chaos and dysfunction. Even if the CDU-CSU talks in January 2018 fail, Steinmeier will have to propose a Federal Chancellor for the Bundestag’s confirmation vote, probably within that month — if Article 63 means anything at all and binds the President to a reasonable timetable. This could, in turn, precipitate an early general election under Articles 63, 67, or 68, as I described in this earlier entry.
Reformers in Canada have long promised that codifying constitutional conventions would “democratize the constitution”, “reform Responsible Government” and usher in a new age of accountability and stability. But Germany’s Basic Law shows that confirmation voting, constructive non-confidence, and mandating that a new parliament must convene within 30 days after the general election do not necessarily remove the ambiguities surrounding caretaker governments. In fact, Germany’s Basic Law explicitly creates this bizarre problem that would never happen in a Commonwealth Realm operating under the well-established norms and conventions of Westminster parliamentarism.
Germany has found itself in the unusual situation of having convened a new parliament but not yet having gotten rid of and replaced the incumbent caretaker Merkel III Grand Coalition Ministry. Instead, the President of Germany explicitly created this caretaker ministry and has thus far refused to exercise his authority to initiate the Bundestag`s confirmation vote on the new Chancellor. The Basic Law has suspended the Sword of Damocles over the 19th Bundestag — a body far less powerful than it might at first appear. (Incidentally, this incident should also remove any doubt: parliamentary government does not “fuse” the executive and legislature).
None of this would have happened in Canada. While the gap between the general election and the convening of the new parliament would be longer than one month here, at least the caretaker period would end, at the latest, shortly after the new House of Commons had elected its speaker and voted on the Address in Reply. But more likely, the incumbent government would have resigned before the new parliament met, as occurred in 2006 and 2015.
Our way is better. What is more, codifying constitutional conventions does nothing to prevent the unprecedented from happening spontaneously. Germany shows that codification is an inherently ex post facto endeavour and can only beget more retroactive codification.
- How Early General Federal Elections Can Be Held in Germany
- Formation of Governments in Canada
- The Caretaker Convention