Ülle Madise: Government change in light of the Constitution
The letter and spirit of the Constitution are clear when it comes to the prime minister's resignation. However, attempts are made in political debates to attach to provisions of the Constitution meaning that is not there. The first rule of interpreting the Constitution is leaving personal preferences and attitudes at the door, Chancellor of Justice Ülle Madise writes.
We find ourselves in a situation where the prime minister has asked the president to release her coalition partner's ministers from office leaving Estonia with a single-party government. At the same time, the Riigikogu has not expressed loss of confidence in the premier, while several important laws have been passed with a minority government in office. The PM has not presented the president with new ministerial candidates and is trying to form a new coalition.
The letter and spirit of the Constitution are clear when it comes to the prime minister's resignation. What we could debate are constitutional practice in this matter and whether the Constitution should be amended to force the PM to resign every time the ruling coalition changes.
It would no doubt be possible to weaken the position of prime minister in this manner, while we should carefully consider whether it would be a smart move in the long run. It has been suggested for years that the authority of the PM is modest as it is.
Attempts are made in political debates to attach to provisions of the Constitution meaning that is not there. The first rule of interpreting the Constitution is leaving personal preferences and attitudes at the door. The Constitution applies the same, as it should, no matter who sits in the prime minister's chair, the coalition or opposition. Hopefully, it will remain valid for decades and parties to democratic processes have time to play many different roles.
The provisions of the Constitution and the Government of the Republic Act are clear in letter and spirit, explaining their meaning is less than challenging.
"The government as a whole will resign if:
- A new composition of the Riigikogu is convened.
- The prime minister resigns.
- In the event of the prime minister's death.
- If the Riigikogu expresses no confidence in the government or prime minister and the president does not declare extraordinary elections within three days of a proposal by the government.
- If the Riigikogu fails to pass a bill tied to a government confidence vote."
(Government of the Republic Act)
The prime minister must also resign if the number of government members is reduced to two. In the language of the law, "if ministerial resignations or other legal grounds that cause ministers' powers to be terminated render the government unable to make decisions or unable to restore quorum in 21 days since it was lost."
The Riigikogu can immediately express loss of confidence in the government in such a situation and is under no obligation to tolerate an ineffective government for three weeks.
Of course, the prime minister's powers are also terminated in case of a criminal conviction.
This list is exhaustive. Changing coalition partners or even all other ministers is not part of it, nor should it be – the Riigikogu always retains its right to replace the government.
Naturally, the prime minister can resign if and when they feel it is necessary. Estonia has seen both prime ministerial resignations and changes of government when lack of confidence in the government has been expressed. Our Constitution has been wise in governing these situations.
The obligation of the prime minister to resign also cannot be deduced from section 89 of the Constitution as it treats with a situation where the prime minister already has resigned and choosing a new prime minister to form the next government. A prime ministerial candidate chosen by the president will make a presentation to the Riigikogu on grounds for forming a new government and is either given or denied the powers to form it.
The Riigikogu does not approve the government, ministers or the coalition agreement.
Once a prime ministerial candidate has been given authorization to form a government, they will present the president with a list of ministers. The only way to call to order a prime minister who ignores political agreements and refuses to resign is to bring a no-confidence motion.
The situation is the same if the government has been in office for some time. A fine balancing mechanism between the prime minister, other ministers, Riigikogu and the president has been created that has served Estonia well in various different situations.
As mentioned, it would be possible to amend the Constitution and add another basis for the prime minister to resign: dissolution of the ruling coalition. But we should first carefully consider all potential situations where it would be applied. With different political parties imagined in different roles – all could be big or small, decisive or not, in the opposition or coalition, well-funded or not so much.
It should also be asked whether the new basis for the premier's resignation would also take effect if their coalition partner fails to honor agreements, leaves the government or when a minister is replaced against the coalition partner's wishes due to personal differences.
If all of these situations would call for the prime minister's resignation, it would remove the constitutional principle of using parliamentary no-confidence motions to replace governments and also weaken the balancing role of the president, in addition to that of the premier.
The idea that the Riigikogu also approves the coalition agreement by giving the prime minister powers to form a government is elegant only at first glance.
The Constitution makes no mention of the concept of coalition agreement and the practice of including incredibly detailed changes to life in Estonia therein is rather harmful and works to limit the Riigikogu's constitutional role in running life in Estonia. MPs must always have the possibility to introduce changes to bills put forward by the government or to the state budget.
There can never be enough time for comprehensive consideration of all reforms and changes during coalition talks, which fact needs to be acknowledged – the coalition agreement is no substitute for the law.
With the spirit of the Constitution in mind, the coalition agreement could include general reform goals or perhaps changes no party to the coalition would seek once in government together.
When choosing members of the government, the prime minister must always keep in mind that all major and significant matters of state need to be made by the Riigikogu. Money for realizing the government's plans also comes from the Riigikogu. It is true that the latter has reduced its role both in state budget decisions and many other matters. However, fundamental changes and passing the state budget still requires MPs' support, in some cases at least 51 votes.
Estonia is a parliamentary country where the government rules with the confidence of the Riigikogu. This means that the Riigikogu is free to express no confidence in the prime minister, individual ministers or the entire government whenever it sees fit.
To avoid political gambling, the Constitution gives the government the right to request extraordinary elections if a no-confidence motion in the prime minister or the entire government passes. The president will then make the decision [of whether to declare extraordinary elections] based on their oath of office, or what they find is best for Estonia at the time.
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Editor: Marcus Turovski