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The presidential refusal to appoint a minister in comparative perspective – similar constitutional provisions but different interpretations

woensdag 20 juni 2018, analyse van mw Hoai-Thu Nguyen

Op 27 mei blokkeerde president Mattarella van Italië de benoeming van de eurosceptische Paolo Savona als minister van Economische Zaken. In Duitsland en Frankrijk gelden vergelijkbare wetten als het gaat om de benoeming van ministers. Toch worden de rechten van de president in deze landen anders geïnterpreteerd. Het recht van de president op benoemingen te blokkeren hangt niet alleen af van de wet, maar ook van het politieke stelsel van een land en de context waarin de wet is opgenomen.

On 27 May 2018 Italy was thrown into a post-election political and constitutional turmoil when Italian President Sergio Mattarella refused to appoint the designated Minister of Economy and Finance, Paolo Savona, proposed by the Five Star Movement and the League. While not the first time that an Italian President has vetoed the proposed composition of government, it was the first time that he did so on political grounds – in this case because of Savona’s opposition to the single currency. Whether or not such a refusal was politically inopportune or legitimate has been discussed in many newspaper articles and scholarly blogs; this piece will instead look at the presidential right to refuse the appointment of a minister in a comparative perspective and examine how such a right is interpreted under the German and French Constitutions in comparison with the Italian Constitution.

Despite heavy criticisms against his decision and calls for his impeachment by the the Five Star Movement and the League, Mattarella’s refusal to appoint Savano was in accordance with the provisions of the Italian Constitution. Article 92 of the Italian Constitution states that “[t]he President of the Republic appoints the President of the Council of Ministers and, on his proposal, the Ministers.” This rather vague wording has generally been interpreted to mean that the Italian President is not legally bound by the proposal of the Prime Minister. Past instances, where an Italian President has refused the appointment of a designated minister were, for example, in 1994 when President Scalfaro refused to appoint Berlusconi’s lawyer as Minister of Justice and, more recently, in 2004 when President Napolitano refused the appointment of a judge as Minister of Justice, arguing that such an appointment would blur the lines between judiciary and the executive.

What is interesting to note is that the German Basic Law and the French Constitution have similar wordings to those of the Italian Constitution when it comes to the appointment of ministers by the President, but that these respective provisions are interpreted rather differently. Article 64(1) of the German Basic Law thus states that “Federal Ministers shall be appointed and dismissed by the Federal President upon the proposal of the Federal Chancellor“, while article 8 of the French Constitution provides that “[o]n the recommendation of the Prime Minister, [the President] shall appoint the other members of the Government and terminate their appointments.”

Even though equally vague as its Italian counterpart, the consensus on the German article 64(1) GG is a different one: namely that the Federal President may, in fact, not refuse the appointment of ministers proposed by the Federal Chancellor (except where the proposed minister does not fulfill the formal criteria for his post) as this would go against the spirit of the Basic Law. According to article 65 GG, it is the Federal Chancellor – elected by the German parliament, under certain circumstances even without a presidential nomination (see article 63 GG) – that determines the governmental policy guidelines and that bears responsibility for it. This must necessarily also include a right to choose her ministers, and a presidential right to object to her choice of minister would be in contradiction to the Federal Chancellor’s Richtlinenkompetenz – in particular in light of the purely representative functions of the Federal President under the German Basic Law.

This is different in the semi-presidential system of France. Under article 8 of the French Constitution, the President does not only appoint the members of government upon proposal of the Prime Minister but he also appoints the Prime Minister according to his own preferences. Different than in Germany the appointment of the French Prime Minister is not conditional upon parliamentary investiture. According to article 21 of the French Constitution, and similar to Germany, it is the Prime Minister who directs the action of government in France but in a situation of cohabitation – where the President and the Prime Minister belong to different political parties – this task shifts to the President. But also where there is no cohabitation the French President is heavily involved in the choice and the appointment of ministers; this is also shown by the fact that the current government in France is often called ‘Macron’s cabinet’ rather than ‘Philippe’s cabinet’ – whereas in Germany it is always ‘Merkel’s government’ and never ‘Steinmeier’s government’.

Thus, even though the three constitutions have very similar wordings with regard to the right of the President to refuse the appointment of a minister, the interpretation thereof differs from one country to the next. How such a right is interpreted depends not only on the respective political traditions and the system of government that is in place in the respective country, but also on the spirit of the Constitution and the contextual framework in which such a right is embedded.

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