The constitution is not a Demiurge, as opposed to what the constitutionalists
are sometimes want to believe,
it need not be an unstable and precarious mirror surface of society in motion,
as opposed to what some politicians would wish.
- 2 The Constitution of the Republic of Croatia, OG 56/1990.
- 3 Smerdel & Sokol 2008: 89: “It should be mentioned that it was Smiljko Sokol and Vladimir Šeks who c (...)
- 4 Sokol & Smerdel 1992: 151.
1The starting point for the study of Croatia’s constitutional democracy is the adoption of the Constitution of the Republic of Croatia of 22 December 1990.2 The final draft of the Proposal for the Constitution of the Republic of Croatia (1990) was prepared by the “Drafting Group” bringing together Smiljko Sokol, Zdravko Tomac and Vladimir Šeks.3 The first constitutional law textbook in the democratic Croatian state defines the form of government as set out in the Constitution of the Republic of Croatia (1990) as semi-presidential.4 We have to ask ourselves whether the myth of the semi-presidential system, the weapon of all the innovators and reformers of the Croatian constitutional system, is essentially, intentionally or not, equal to mystification or deception. If mystification exists today, it consists in the use of a dubious political-science concept of the semi-presidential system within the framework of the struggle for power, in determining the meaning and weight it does not have.
- 5 Duverger 1980: 166. The English text is as follows: “A political regime is considered as semi-presi (...)
2 The features of the semi-presidential system are defined by the authors of the Croatian Constitution according to the concept of M. Duverger5 who says that the constitutional system of the French Fifth Republic is not unique but shared by a group of states whose head of state is elected directly and has considerable powers, while the Government is accountable to Parliament: Austria, Finland, Portugal, Ireland, Iceland, the Weimar Republic.
3 At the workshop entitled What remains today of Maurice Duverger’s work? held at the 2009 Congress the French Political Science Association found that M. Duverger, formerly the embodiment of public law and political science, had sunk into oblivion in today’s France. The most recent reference and tribute to him date from as long ago as 1987, the year the book Mélanges Duverger was published.6
- 7 Pfersmann 2009: 275–286. The Fifth Republic has a parliamentary system of government but that does (...)
4 In qualifying the Fifth Republic Otto Pfersmann distances himself from the use of the concept “semi-presidential”:7
What we principally have here is an ideological instrument for justifying the permanent violation of the Constitution by the President of the Republic and the voluntary enslavement of the political and juridical personnel which says it adheres to this “reading” of the text.
5Legally its system of government is nothing but the parliamentary system and its application is to a large extent unconstitutional. A constitutional revision intending to transform a system of government into the “French” system of government risks producing completely different outcomes because a violation of the Constitution cannot be framed by the Constitution.
- 8 For more see: Duverger 1978.
- 9 Elgie 2004: 314–330. As one of the possibilities of study R. Elgie offers the following: “We may ch (...)
- 10 Elgie 2004. The author states: Alfred & Skach 1993: 9; Sartori 1997: 126. Sartori excludes Ireland (...)
6 For M. Duverger the said features of the semi-presidential system are not sufficient for the system to be classified into a group and he cannot explain the classification solely by means of these features. Therefore in his first paper written in English he briefly defines the model, whereupon in a more extensive presentation he outlines the differences between the political systems of the mentioned states and describes figurative presidency (Austria, Iceland, Ireland), superior presidency (France) and balanced presidency and government (Finland, Portugal and the Weimar Republic). He considers the constitutional powers of state authorities and the conditions for the establishment of a system. He explains that presidential powers depend on the existence and nature of the parliamentary majority and on whether the parliamentary majority supports or opposes the president.8 The author shapes the concept by taking into account both constitutional powers and the actual functioning of government. For a system to be classified into the group of semi-presidential systems the direct election of the President of the State is a necessary but not a sufficient condition since the directly elected President also needs to be a relatively strong figure. R. Elgie points out that such a logic of establishing classification criteria necessarily introduces subjectivity into the process and includes the making of the judgment as to how much the President of the State is or can be superior, which prompts different authors to classify states into different groups.9 He notes that in 1993 only France and Portugal were identified as semi-presidential systems by Stepan and Skach, while the same authors described Austria, Iceland and Ireland as parliamentary systems because their Presidents, although elected directly, are weak. Sartori adopted the same approach. In 1997 he stated that Austria and Iceland are not semi-presidential systems because their presidents, having been deprived of constitutional powers by the actual constitution, are “strong only on paper”.10 The price to be paid for adopting this approach is that of distancing ourselves from the set rules of discussion on the forms of government.
7 In his 1989 work Classifications in Constitutional Law that looks into the scholarly value of classifications outside the traditional dichotomy between the presidential and parliamentary systems Michel Troper states the following:11
The success of the comparison depends on whether the classes have been fully compared. /.../ Thus if we take as the criterion one feature, the first class has to be defined by this feature and the other by its opposite, i.e. by the inexistence of this feature. This rule is no more than the implementation of the principle of non-contradiction. However, in the case of political systems two forms – the parliamentary and the presidential – are depicted as strictly opposite or pure. Indeed they are such if, as we have said, the presidential system has direct presidential elections and lacks political responsibility and the parliamentary system has political responsibility and lacks direct presidential elections. By contract, a “mixed” system would contain contradictory features: direct presidential elections and the inexistence of direct elections, political responsibility and the lack of political responsibility, which, of course, would be absurd.
- 12 Hamon & Troper 2007: 104–121 and 477.
8A classification may only be formal, it has no other operative value than that of classifying systems according to whether their constitution has an even or an odd number of articles. The author criticizes any attempt at classification, he states that no causal relationship can exist between constitutional structures and the actual political system and adds that classifications of systems is devoid of any scientific value.12
9 M. Kasapović states the following:13
Duverger’s original designation of any new political system has become the subject matter of constant theoretical disputes that focus on three questions. First, are the stated main features sufficient for constituting a new system of government, i.e. a new political regime? Second, what is to be understood under ‘considerable powers’ of the President of the State and how is this syntagma to be differentiated into specific constitutional powers? Third, how are we to treat the analytical approaches, namely the constitutional and the empirical one, which Duverger adopted in order to classify semi-presidential systems and which produce different results?
- 14 Thus in referring to the background to the drafting of Croatia’s Constitution in the Glas Slavonije(...)
- 15 Burdeau, Hamon & Troper 1997: 433. The authors state the following: “If one were to want unconditio (...)
10 The authors of the Croatian Constitution state that their model was the Constitution of the Fifth Republic14. However, French constitutional law professors G. Burdeau, M. Troper and F. Hamon15 note that its institutional system incorporates the main features of the parliamentary system, namely dualistic executive power, political accountability of Government to Parliament, the right to dissolve Parliament and, to some extent, the institution of the Government countersigning the acts of the Head of State. They point out that ever since the referendum on the direct election of the President of the Republic (1962) popular sovereignty is expressed not only at parliamentary but also at presidential elections. They state that this is an instance of a new institutional form of the parliamentary system but they neither want to dub it in any particular way nor refer to the opinion of some other author.
- 16 Propositions pour une révision de la Constitution 15 février 1993, La Doc. française, Paris, 1993.
11In 1993, D. Maus, J.-C. Colliard, O. Duhamel, L. Favoureu and F. Luchaire, forming under the chairmanship of G. Vedel the Advisory Constitutional Committee Charged with Amending the French Constitution (1958), viewed the maintenance of the Government’s political accountability to the Parliament of the Fifth Republic as proof that the parliamentary system exists and dismissed any further discussion on whether this system falls outside the traditional dichotomy between the presidential and parliamentary systems and on whether a mix of these two systems exists.16
12In 2002, M.-A. Cohendet stated that the Fifth Republic had remained parliamentary, with a form of government in which the Government is accountable to Parliament. Although at the outset the system had been monorepresentative, since the 1962 amendments to the Constitution it has been birepresentative:17
Frequently a system is questionably designated as ‘semi-presidential’, which is a denomination devoid of logic. We cannot at one and the same time designate as a parliamentary system a system in which the Government is accountable to Parliament and state that a system in which the Government is accountable to Parliament is not a parliamentary system. That is exactly what M. Duverger did.
- 18 Canelas Rapaz 2009: 10.
- 19 Canelaz Rapaz 2009. The title of a chapter of the author's paper Echec et mat au concept par le man (...)
13P. J. Canelas Rapaz discards both the designation of Portugal’s constitutional system as semi-presidential and the remaining of Portugal in the company of “Duverger’s six Titanesses, the daughters of Gaia and Uranus, Mother Earth and Father Heaven”.18 Duverger’s concept of the semi-presidential system is checkmated as a result of the weaknesses of its criteria and the deficiencies in its elaboration. The absolute and universal answer to the question of whether Portugal’s system is semi-presidential has in fact become trivial since the only answer that can be given is that “the semi-presidential system does not exist”.19
14S. Daly states that the classification of modern constitutional systems outside the traditional parliamentary/presidential dichotomy runs into undesirable tendencies: provincialism, procedural errors, conceptual stretchability and degreeism.20
- 21 Kasapović 2007: 27–54. The first part of the paper: 1.2. Contesting the semi-presidential system as (...)
15M. Kasapović lists the authors that contest the sui generis character of the semi-presidential system: e.g., Winfried Steffani, Karl Loewenstein, Anton Pelinka, Pierre Avril, Jean Claude Colliard and Jean-Luis Quermonne hold that this is a parliamentary system, another group of scholars classify it as the presidential system, and yet another as various subtypes of parliamentary and presidential systems.21
16In the late 1980's M. Duverger's concept was discarded in France, the system of government of the Fifth Republic was not re-interpreted, a version of the parliamentary system thus continuing to exist.
17 In his 1992 paper The Semi-Presidential System and Parliamentarianism S. Sokol says that in terms of its constitutional-law features the Croatian semi-presidential system is very similar to, although not absolutely identical with the contemporary French constitutional model of government. When comparing the actual instances of the Croatian and the French semi-presidential systems, he estimates that the Croatian semi-presidential system is closest to the French instance of pure Gaullist parliamentarianism as it existed in the period from 1962 to 1969.22
- 23 A comparison of the texts of the first Proposal for the Draft Constitution of the Republic of Croat (...)
18The acknowledgement by the authors of the Croatian constitutional text of their source of inspiration and the similarities existing between certain constitutional mechanisms in the two texts is not sufficient to conclude that French constitutional law served as the source of inspiration. It is necessary both to determine what elements were actually imported and to go back to studying the documents of 1990 concerning the drafting of the Constitution of the Republic of Croatia.23
19 B. Smerdel explains that the decision on the adoption of the semi-presidential system in the Republic of Croatia was taken as a result of Franjo Tuđman's political conception of state governance, the non-existence of the democratic tradition, the prevailing tendency of the new political elites towards the system of concentration and personalisation of power, and the assessment of the framers of the Constitution that the future will bring such problems and threats which require the centralisation of political decision-making.24
20 What was instrumental in choosing the constitutional model of government in Croatia was, on the one hand, the good repute of institutions which was based on the exceptional efficacy of the French system of government and, on the other, the prestige of the first president of the Fifth Republic, General de Gaulle, the symbol of Free France. We hold that the authors of the Croatian Constitution (1990) were inspired not only by the constitutional text but also by de Gaulle's actual governance. Since a straightforward adoption of the constitutional norms on the position and powers of the French President of the Republic would not guarantee a desirable manner of government, the drafters of the Constitution went beyond the limits of the original French constitutional text. What was constitutionalised and in essence constitutionally reproduced was the functioning of the French government during General de Gaulle's presidency of the Republic (from 8 January 1959 to 28 April 1969).
21 In this way they not only went beyond the Constitution of the Fifth Republic but also denatured the original constitutional text and changed the characteristics of the French constitutional model. The way French constitutional law was imported in 1990 was not neutral, it did not constitute a mere translation of constitutional norms but constitutional science teaches us that neither the legal transplantation of the constitutional text of another state guarantees a functioning identical to that in the parent state. French constitutional norms needed to be instrumentalised, interpreted and legally adapted to the desirable political goal, namely the establishment of an effective governmental power in which the superiority of the President of the Republic would be asserted over both the Government and the legislative power.
22 Out of the original French constitutional text were taken institutional obstacles, constitutional institutions serving to offer resistance to the will of the President of the Republic, constitutional-law conditions for the Prime Minister's primacy in the political system in case of co-habitation, and discrepancies between the parliamentary majority and the presidential majority. Constitutional norms unknown to the original were built into the text. And this despite professor Arsen Bačić's warning at the 5th session of the Parliament's Commission for Constitutional Issues (22 November 1990) that
the competences of the legislative power, preserved by means of traditional principles, have been limited in favour of the interventionist role of the executive. Primarily the supremacy over the armed forces, the right to appoint ministers, proclamation of the state of war, decisions on state intervention, proposals for constitutional amendments
and in view of this constitutional evolution some amendments to the Proposal for the Constitution need to be made and the role of the Croatian Parliament25 and the parliamentary system accentuated. In the Croatian constitutional text the strategic goal was achieved by strengthening the powers of the President of the Republic and legitimising the achieved imbalance of power.
- 26 de Jouvenel 1964: 1053.
- 27 Quermonne & Chagnolland 1991: 84. For the transcript of the speech of 31 January 1964 see: Maus 199 (...)
- 28 Duverger 1986: 7.
- 29 It was only in the November 1962 elections that the Gaullist UNR, polling 42% of the votes cast, wo (...)
23 The evolution of the political system characterised by the personalisation of power in the period of de Gaulle's presidency of the Republic (1959-1969) is compared with the principate, a general concept used for denoting all contemporary systems in which the political body is ruled by one person.26 According to Jean-Louis Quermonne, in his speech of 31 January 1964 de Gaulle presented a conception of government in which the President of the Republic is the source and the holder of power, a guarantor of the future of both France and the Republic, indivisible governmental power has been delegated to him by the people, no other authority can exist unless he has conferred or held it.27 De Gaulle confirmed that the manner of government at the time of his holding presidential office deviated from the constitutional text. Before the 1967 parliamentary elections, which he feared would bring victory to the opposition, he stated: “Actually it will be fun to see how one can govern with the Constitution”.28 From de Gaulle's investiture as the last Prime Minister of the Fourth Republic on 1 June 1958 to the first parliamentary elections (18 and 25 November 1962), after the referendum on the direct election of the President of the Republic in the Fifth Republic (28 October 1962), there was no majority phenomenon in France, France did not know of a stable parliamentary majority identical with the presidential political majority and therefore the establishment of supremacy of the President of the Republic was not the result of the threefold political consensus. Instead, it was the Algerian war that played the most important role in this.29
- 30 de Courcel 1988: 9–10.
- 31 Minutes of the National Assembly session of 2 February 1960.
- 32 Traditional political forces opposed the direct election and requested “a speedy restoration of rep (...)
24 The Algerian war directly contributed to the widening of the powers of the President of the Republic to the detriment of those of the Prime Minister. For example, on 13 February 1960 the first Council of Algerian Affairs was set up under the exclusive control of the Head of State. That served as a precedent to the customary acceptance of the institution by which the Head of State is given the authority to decide with respect to a number of areas that are regularly within the competence of the Government. The initial period of the Fifth Republic marked by the Algerian War led to the system's presidentialisation. From de Gaulle's entry into the Elysée (8 January 1959) to the spring of 1962 presidential power exerted a crucial influence on the resolution of the Algerian crisis. The use of constitutional procedures and institutions during the said period left a lasting mark on the balance of power in the Fifth Republic. Already from the very outset it was clear that all the relevant decisions concerning Algeria would be taken by de Gaulle independently. The Council of Algerian Affairs, chaired by the President of the Republic and made up of the Prime Minister and the responsible ministers and officers, placed all the responsible persons directly under the leadership of the President. This was the first instance of the institutionalisation of a government body under the chairmanship of the President of the Republic and outside the Council of Ministers. By appointing, on 22 January 1960, L. Joxe the Minister of Algerian Affairs de Gaulle showed that he was willing to be directly in charge of the negotiations with Algeria. Convinced that only de Gaulle could indeed resolve the Algerian crisis, the Prime Minister did not oppose this decision.30 Being of a similar view, on 4 February 1960 the members of Parliament passed, due to the Algerian crisis, the Law on the Powers of the Government31 which provided for the passing of ordinances (Art. 38 of the Constitution of France) and specified that in order to come into force these ordinances had to be signed by the President of the Republic General de Gaulle. An addition to this Law, i.e. that the ordinances had to be signed by de Gaulle, spelled in legal terms the end to special powers in case a new President of the Republic took office! It is difficult even to imagine a provision so at odds with the French parliamentary tradition. De Gaulle was thus given not only constitutional powers but also the task of resolving the Algerian crisis. Algeria was what triggered the establishment of a direct link between de Gaulle and the people, via referenda the people lent almost unanimous support to the presidential policy. Four months after the end of the Algerian crisis the most important constitutional institutional consequence of the war took place, namely the referendum on the direct election of the President of the Republic (28 October 1962).32
- 33 President Franjo Tuđman expressed a similar opinion on the referendum – an instrument of the head o (...)
- 34 Constitution de 1852, Second Empire, Article 3. - Le président de la République gouverne au moyen d (...)
25 Direct elections would not alter de Gaulle's thoughts on the constitutional role of the President of the Republic, in the 1965 presidential campaign he refused to side with any party or to participate in a duel with the other presidential candidates. That cost him the run-off election which he entered as the representative of the people's unification and the defender of the institutions against the candidates of allied parties that were ready to overthrow the institutional system. Not even after the direct elections did he renounce the use of the referendum, holding this to be the only procedure by which the President's legitimacy can be verified among the people. Direct elections are not sufficient proof of the President's legitimacy, de Gaulle had to verify this legitimacy regularly and that was the reason for his stepping down from power after the negative referendum on the Senate and the regions (27 August 1969), by this act he affirmed his respect for democracy.33 The constitutional reality of the described period can be compared with Article 3 of the 1852 Constitution of the Second Empire: “The President of the Republic governs through the ministers, the State Council, the Senate and the Legislative Body”.34
26 As early as the beginning of 1962 M. Duverger stated that the direct election of the President of the Republic was the only way in which the Gaullistic order could outlive its founder and demanded the introduction of the presidential system. He explained that without direct elections de Gaulle’s successor would finally have to apply the Constitution as opposed to the Gaullist rule: “He is a unique person. I am of the opinion that the Fifth Republic does not exist, that it is a personal consulate”.35 The reality of the Fifth Republic proved Duverger wrong in his estimate that without the introduction of the presidential system, one generals’ putch would be more than enough to destroy the order. Quite to the contrary, the return to the flexible constitutional text of the Constitution of the Fifth Republic rendered political stability possible and did not prevent European unification, or liberal or state-controlled economy, or the functioning of public authorities in times of cohabitation, or for that matter any other challenges that France had to face during the last fifty years.
- 36 Smerdel 2000: 20. The author concludes that the system, especially after the 1997 presidential elec (...)
27 The description of the Gaullistic period can to some extent be compared with the description of Croatia’s constitutional reality in the period from 1990 to 2000. In his work Constitutionalism and Change of Government B. Smerdel noted the following:36
The centre and symbol of the regime became the imperial presidency which from the outset was built on interpretations that were foreign to the spirit and, not infrequently, the letter of the Constitution, in a process in which power, by means of legislation and practice, was concentrated in the person of the President of the Republic, his office and quasi-advisory bodies, of which the most prominent role was played by the National Defence and Security Council (VONS).
28 Should we wish to constitutionalise Gaullist presidentialism, we would not need to draft a new constitutional text, the majority of the provisions could be preserved. We would need to redraft certain articles relating to the President of the Republic and the Government, discard diarchy and introduce unequal dicephalism. However, we would thus be disregarding the huge risk of producing completely different results since a violation of the French Constitution cannot be inserted into the Constitution.
- 37 De Gaulle emphasizes that the referendum was the only procedure for checking presidential legitimac (...)
29 In order to constitutionally reproduce the basic ways in which the French state authorities function it is necessary to replace in the draft political accountability of the Government to Parliament (Art. 20(3) of the French Constitution) with the institution of dual political accountability of the Government to both the President of the Republic and Parliament, to maintain the autonomous power of the President of the Republic to appoint and terminate the appointment of the Prime Minister (Art. 8) as well as his emergency powers (Art. 16), and then to remove the institutional obstacles to the expansion of presidential powers to the detriment of the Prime Minister. The presidential powers of appointing and terminating the appointment of the other members of the Government (Art. 8(2)), presiding over the Council of Ministers (Art. 9), signing ordinances (Art. 38) and decrees (Art. 37) issued by the Council of Ministers, negotiating and concluding international agreements (Art. 52), accrediting and recalling ambassadors (Art. 14), initiating amendments to the Constitution (Art. 89), appointing the most important civil and military figures (Art. 13(2) and (3)), obliging Parliament to reconsider an act of parliament (Art. 10), supreme command over the armed forces and presiding over national defence councils (Art. 15) should be deprived of the Prime Minister’s countersignature which pursuant to Art. 19 of the French Constitution (1958) is required for their exercise. The draft would incorporate new provisions and institutionalise the setting up of a body under the chairmanship and guidance of the President of the Republic and outside the Council of Minister. The draft would reflect a fragmented constitutional imitation of the constitutional model of the Fifth Republic subjected to political subjectivism.37
- 38 Discours de M. Debré devant le Conseil d'Etat le 27 août 1958. Cited from: Maus 1998: 2–8.
30 The study of the original spirit of the French Constitution, of the idea animating it and of the political plan of the framers of the Constitution provides guidance in ambiguous situations. The constitutional thought of the framers of the Constitution of the Fifth Republic is valuewise and institutionally within the framework of the constitutional model of the parliamentary system, the principle of separation of powers is the foundation of the renovated parliamentary system of the Fifth Republic. When presenting the final text of the draft Constitution to the Council of State, the minister M. Debré, the principal drafter of the constitutional text, noted the following:38
The purpose of this /.../ is, first and foremost, to try to establish the authority without which there is neither State nor democracy. /.../ The Government wanted to renovate the parliamentary system. I would even be tempted to say that it wants to establish it, because for many reasons the Republic has never been able to put it in place.
- 39 De Gaulle 1947: 103.
- 40 For more see Tardieu 1934.
- 41 Art. 5(1) of the Constitution of the French Republic reads: “The President of the Republic shall en (...)
- 42 Art. 20(1) of the Constitution of the French Republic (1958) reads: “The Government shall determine (...)
31 The constitutional thought of the framers of the Constitution proceeds from the criticism of the parliamentarianism of the Third Republic in which the Parliament, besides fulfilling the legislative and the supervisory function, took over the executive power, for which reason de Gaulle's conception of separation of powers is utterly opposed to the interpretations of the constitutional doctrine of the previous Republics. De Gaulle defines the principle of separation of powers as the prohibition to concentrate all powers in the hands of one body, the executive and the legislative powers must be effectively separated. By characterising the separation of powers in negative terms, he wants to prevent the confusion of the legislative and the executive powers in the state,39 which would result in anarchic powerlessness and the unaccountability of governmental power.40 With the theory of the separation of powers he wants to limit the destructive influence of the Parliament of the Third Republic whose perilous inability to carry out state policies led to the weakening of governmental power, anarchy and the collapse of the Republic in the Second World War. The President of the Republic became the central institution of the renovated parliamentary system, he was conferred constitutional powers for ordinary states of affairs and states of emergency in the state, and was ensured independence from members of Parliament.41 At the same time, for the first time in the constitutional history of France the task of the Government was constitutionally determined.42
- 43 Art. 20(3) of the Constitution of the French Republic (1958) states: “It shall be accountable to Pa (...)
- 44 Discours de M. Debré devant le Conseil d'Etat le 27 août 1958. Cited from: Maus 1998: 2–8.
32 Under the constitutional model of the Fifth Republic the Government is appointed by the President of the Republic and is politically accountable to the National Assembly.43 This clearly confirms that the nature of the new French system is parliamentary and not presidential. It was precisely this provision which made it possible that the President of the Republic be not only the head of parliamentary majority but also, during periods of cohabitation, of the opposition. According to M. Debré:44
This principle is the basic characteristic of the parliamentary system which the draft Constitution wants to establish. /.../ Nor does the accountability of the Government signify that it may be called into question in an unlimited manner as a daily occurrence /.../ The accountability of the Government is established according to procedures that need to prevent the risk of instability.
33At the 11th session of the Consultative Constitutional Committee for the Drafting of the Constitution held on 8 August 1958 its president Paul Reynaud put the following question to de Gaulle: “If the Prime Minister is appointed by the President of the Republic, can the latter also terminate his appointment?”45
34 De Gaulle confirmed that the President of the Republic could not terminate the appointment of the Prime Minister:46
[B]ecause, were it otherwise, he would not be able to rule with a free spirit [avec l’esprit libre]. The Prime Minister is accountable to Parliament and not to the Head of State, an impartial person that need not meddle in the current political situation but whose basic function is to take care of the regular functioning of the public authorities. He appoints the Prime Minister as was the case under the 1875 Constitution, which leaves out investiture without thereby in any way discarding the application of the issue of confidence. /.../ If the Prime Minister asks for the termination of appointment of one of his ministers, the President of the Republic signs the decision, but cannot take the decision on his own initiative. Were it not so, the balance of power would be compromised.
35J.-L. Debré pointed out that the said interpretation of the political accountability of the Government rejects dualistic parliamentarianism in which the Government is politically accountable to both the Parliament and the Head of State (the Orleans parliamentarianism). Consequently Paul Reynaud, appeased, suggested to the Consultative Committee that the text of Article 8 on the Government's appointment be accepted without amendments. The reality of the initial period (1958-1966) of the Fifth Republic reveals that all de Gaulle's Governments requested a vote of confidence in the National Assembly.
- 47 Maus 1995: 211. Following the appointment of M. Debré's Government, the National Assembly convened, (...)
36On 16 January 1959, the Prime Minister M. Debré noted the following in the National Assembly:47
Our new Constitution determines that the Government is appointed by the President of the Republic and the second article authorises the Government to put forward, if necessary, the question of accountability in relation to its programme. Although the Constitution does not explicitly state that the Government has to do this at the moment of its appointment, the spirit of the Constitution is clear and we intend to observe it. The appointed Government goes before the Houses, before the directly elected House it presents its programme and asks for approval. /.../ This is necessary. /.../ Parliamentary government is a government subjected to the supervision of the Houses.
- 48 Maus 1998: 222–223.
- 49 See: Debré 1974: 238–239. Discussion at the Council of State on 25 August 1958.
37The Prime Minister, after deliberation by the Council of Ministers, makes the Government's programme or general policy statement an issue of a vote of confidence before the National Assembly (Art. 49(1) of the Constitution). G. Pompidou's third Government having failed to do so, on 18 April 1967 François Mitterrand said before the National Assembly: “Mr. Prime Minister, you do not have to ask us for investiture, but you have to get our confidence. ... Your Government is starting its mandate unconstitutionally“.48 F. Mitterrand explained that at a session of the Consultative Constitutional Committee for the Drafting of the Constitution General de Gaulle had clearly differentiated the Government's investiture from the issue of confidence, Article 49(1) was then amended and instead of the text “the Prime Minister may call for a vote of confidence in the Government” the final text read “the Prime Minister calls for a vote of confidence in the Government”.49
- 50 Art. 8 of the French Constitution. “The President of the Republic shall appoint the Prime Minister. (...)
- 51 Pactet & Mélin-Soucramanien 2004: 436.
38The President of the Republic appoints the Prime Minister. He terminates the Prime Minister's appointment when the latter tenders the resignation of the Government. On the recommendation of the Prime Minister, the President of the Republic appoints the other members of the Government and terminates their appointments (Art. 8 of the Constitution).50 In order to be able to appoint and terminate the appointments of the other members of the Government, the President of the Republic needs the Prime Minister's countersignature, an agreement between the President of the Republic and the Prime Minister is necessary. P. Pactet explains that the collective resignation of the Government is possible either after the National Assembly passes a vote of no-confidence in the Government (Art. 49) or if the Prime Minister tenders his voluntary resignation to the President of the Republic. The President of the Republic can bring about the Prime Minister's resignation only in cases where they are politically close. Where this is not the case, the President of the Republic is rendered defenceless, there is no question of his requesting the resignation of a Prime Minister that has the support of a majority that is politically opposed to him. A provoked resignation must be a voluntary act.51
- 52 For more see: Government of the Republic of Croatia Act, OG 101/1998:
- 53 Šarin 1997: 323.
39If we compare the Croatian Constitution (Art. 98(3) and (4); 1990): “The President of the Republic shall: - appoint and relieve of duty the Prime Minister of the Republic of Croatia; on the recommendation of the Prime Minister of the Republic of Croatia, appoint and relieve of duty its deputy prime ministers and members” with the above mentioned Art. 8(1) of the French Constitution, we can see that the following text is missing from the Croatian provision: “when the latter tenders the resignation of the Government”.52 The first Proposal for the draft Constitution read: “The Government shall be accountable to the Parliament of Croatia for its work.” (15 August 1990, Art. 120(1)).53 However, in the draft Constitution of the Republic of Croatia (23 November 1990, Art. 113) and the Constitution of the Republic of Croatia (1990) the Government's accountability was extended to also include the President of the Republic.
- 54 Sokol & Smerdel 1992: 153.
- 55 Sokol & Smerdel 1992: 153.
40S. Sokol stated the following: “Dual accountability of the Government to the President of the Republic and the Parliament of Croatia is one of the basic features of the system of government in the new Croatian Constitution.”54 He noted that only two duties of the President of the Republic are specific to the semi-presidential system:55
These are the right to appoint and terminate the appointment of the Prime Minister of the Republic of Croatia and, on the recommendation of the Prime Minister, appoint deputy prime ministers and members of the Government and terminate their appointments. The said two powers of the President of the Republic, when viewed in conjunction with the provision of Article 111 of the Constitution of the Republic of Croatia according to which the Government is accountable to the President of the Republic and the House of Representatives of the Parliament of the Republic of Croatia, constitute one of the basic differences between the constitutional models of the pure parliamentarian system and the semi-presidential system.
- 56 Constitution of Romania (2003).
- 57 Tanasescu 2008: 42.
- 58 Constitution of Romania (1991).
- 59 Art. 109(1) of the Constitution of Romania (2003): The Government is politically responsible for it (...)
- 60 Article 107(2): The President of Romania cannot dismiss the Prime Minister.
41In contrast to the above, the so-called semi-presidential systems of Romania and Portugal feature different constitutional solutions. The Constitution of Romania of 8 December 1991 as amended on 29 October 2003 (amendments adopted at the referendum of 18 and 19 December 2003),56 which having been “semi-presidential or semi-parliamentary at the outset and semi-presidential tending towards presidential today“57 cannot, according to Elena S. Tanasescu, be easily qualified as “pure“, specifies that the Government is accountable solely to Parliament (Article 108(1), Constitution of Romania (1991)58; Article 109(1), Constitution of Romania (2003)).59 The President of the Republic cannot dismiss the Prime Minister (Article 107(2) of the Constitution of Romania (2003)).60
- 61 Decision no. 356/2007, published in M. Of. 322/14.05.2007. With respect to the case when the Presid (...)
42The President of the Republic of Romania designates a candidate to the office of Prime Minister (Art. 103) and appoints the Government after its investiture in Parliament (Art. 85(1)). However, the President of the Republic is not authorised to designate the members of the Government, this decision is left to be made by the candidate for the Prime Minister, while Parliament is to grant them confidence. The President of the Republic decides on the Government's appointment not at the request of the Prime Minister but at the request of the speakers of both Houses of Parliament pursuant to an affirmative vote of confidence by Parliament and the acceptance of the Government's programme and the list of Government members. Since the Government is accountable in solidum, appointments are terminated and new Government members appointed on the proposal of the Prime Minister, while any change in the Government's structure and political composition also requires Parliament's approval of the Prime Minister's proposal for change (Art. 85(2), (3)). In its Decision 356/200761 the Constitutional Court of Romania stated that the President of the Republic does not have decisive powers regarding the appointment of Government members, he is required to appoint them on the recommendation of the Prime Minister.
43The drafters of the Constitution of the Portuguese Republic (2 April 1976) Jorge Miranda and Vital Moreira wanted to move the President of the Republic away from the political running of the country and governmental power and to extricate him from the partisan world.62
- 63 Art. 201 c) of the Constitution of the Portuguese Republic (1976).
- 64 Art. 133 i) of the Constitution of the Portuguese Republic (1976).
- 65 Art. 125(3) of the Constitution of the Portuguese Republic (1976).
44Under the Portuguese Constitution the Prime Minister must inform the President of the Republic about matters concerning the conduct of the Government's domestic and foreign policies,63 which moves the President away from these areas. The President of the Republic is present and chairs the sessions of the Council of Ministers when asked to do so by the Prime Minister.64 Presidential elections take place 100 days after parliamentary elections if the regular date of presidential elections is within the period of 90 days preceding or following the date of parliamentary elections.65 The leaders of political parties are directed to compete for the post of Prime Minister and not the presidency of the state, the presidential campaign is deprived of the programmatic debates of the parliamentary campaign. Parliamentary elections maintain their monopoly over the choice of government policy, their results and voters cannot be influenced by presidential election victory.
- 66 Art. 191(1): The Prime Minister shall be responsible to the President of the Republic and, within t (...)
- 67 The Constitution of the Portuguese Republic, Art 195(2): The President of the Republic may only rem (...)
- 68 Art. 140 of the Constitution of the Portuguese Republic (1976) lays down the powers which the Presi (...)
- 69 Presidents of the Republic Mário Soares and Calvaco Silva note that the promulgation of acts of par (...)
45The first amendments (1982) to the Constitution of the Portuguese Republic (1976) dismiss the political accountability of the Prime Minister to the President of the Republic.66 In the norm on the accountability of the Government, the word “political“ in reference to the accountability of the Prime Minister to the President of the Republic is simply deleted, while the political accountability of the Government to Parliament is retained (Art. 191(1) of the Portuguese Constitution). In 1982 a new constitutional provision according to which the President of the Republic may remove the Government only when it becomes necessary to do so in order to ensure the normal functioning of the democratic institutions and after first consulting the Council of State (Art. 195(2)) was added.67 The possibility of removing the Government for reasons relating to the conduct of domestic or foreign policies was excluded, the removal is not a means to be employed against the executive. The President of the Republic appoints the members of the Government and terminates their appointments on the recommendation of the Prime Minister (Art. 133 h) and with the counter-signature of the Prime Minister (Art. 140).68 The President of the Republic may also exercise the right of veto over legislation (Art. 136), in which case a law is to be submitted for reconsideration and Parliament must confirm it by an absolute majority of all its Members (for the re-adoption of organic laws and when certain constitutional areas are concerned a two-thirds majority of the Members present, if greater than the absolute majority of all the Members, is required).69
- 70 Professor Sokol notes the following: “There are only two exceptions to this rule: the Prime Ministe (...)
46S. Sokol states that the dominant position of the President of the Republic is essentially based on the fact that in the semi-presidential system the institution of the countersigning of acts of the President of the Republic by the Prime Minister or the minister concerned in principle does not exist, with the exception of the following two cases, the dissolution of the House of Representatives and the calling of referenda: “In accordance with the accepted model of the semi-presidential system, the Croatian Constitution has not accepted the institution of the countersigning of acts of the President of the Republic by the Prime Minister.”70
47This is most vividly refuted by cohabitation in France, according to F. Mitterrand “the return to the Constitution, the whole Constitution and nothing but the Constitution”, since it prompts us to reconsider the text of the Constitution of the Fifth Republic in order to set the limits to the powers of the President of the Republic. For the first time the game is played by following the rules of the game, the Prime Minister becomes the actual holder of executive power, while the President of the Republic can only count on independent constitutional powers.
48One of these powers is the calling of referenda, on the recommendation of the Government when Parliament is in session or on the joint motion of both Houses, in order to confirm an agreement within the framework of the Community or to authorise the ratification of a treaty which, although not contrary to the Constitution, would affect the functioning of the institutions (Art. 11 of the French Constitution). During the cohabitation of the President of the Republic with a majority opposition in Parliament the calling of a referendum is not contingent on the decision which the President of the Republic takes independently. The only thing the latter can do is prevent the Government from using the institution without his consent. Although the President of the Republic does not need the Prime Minister’s countersignature in order to call a referendum, the said power can only be exercised upon the recommendation of the Government.
49One power which the President of the Republic exercises independently is the power to dissolve the National Assembly (Art. 12 of the French Constitution). However, the political risk that parliamentary election results that led to the cohabitation in the first place would be repeated, whereby the ensuing presidential election would be lost, are too high. The President appoints the Prime Minister and terminates his appointment when the latter tenders the resignation of the Government (Art. 8(1)) but the Government has to enjoy the confidence of Parliament, during its cohabitation with a President of the Republic from the opposite end of the political spectrum.
- 71 Capitant 1971: 419.
- 72 Art. 16(6): Après trente jours d'exercice des pouvoirs exceptionnels, le Conseil constitutionnel pe (...)
50 René Capitant assesses the possibility of the exercise of emergency powers (Art. 16 of the French Constitution) against the will of the people as expressed in parliamentary elections as a monstrous idea which would lead to personal dictatorship.71 The exercise of emergency presidential powers was limited by the 2008 constitutional amendments. After thirty days of exercise of emergency powers, the Constitutional Council may examine, at the request of sixty Members of the National Assembly or sixty Senators, the President of the National Assembly or the President of the Senate, whether the constitutional conditions for their exercise as laid down in Art. 16(1) of the Constitution are still fulfilled. The Constitutional Council makes its decision by public announcement. After sixty days of exercise of emergency powers, the Constitutional Council carries out such an examination as of right (the new paragraph 6 of Art. 16 of the French Constitution).72
51 The President may take the floor before Parliament convened in Congress (Art. 18(2)). This, however, is a pale copy of the power of the US President on the basis of which in January each year the President addresses Congress and citizens by outlining the presidential legislative agenda in the State of the Union Address. Although at the time of the 2008 amendments to the French Constitution the President of the Republic Sarkozy asked for the possibility to directly address Parliament once a year in order to explain his policies and present the results, only a weaker version of the American State of the Union Address was endorsed because the question arose of what, during cohabitation, the President of the Republic would present as actions and results, apart from those relating to defence and foreign affairs.73 Before its promulgation or ratification, the President of the Republic may refer, respectively, a law or an international undertaking to the Constitutional Council which must decide on its conformity with the Constitution (Art. 65 and Art. 54). Following the 2008 constitutional amendments, the appointments of the president of the Constitutional Council, i.e., three members of the Council (Art. 56), members of the High Council of the Judiciary and the Ombudsman must be submitted for consultation to the standing committees of each House of Parliament (Art. 13(4)) which can exercise an absolute veto on the nominations that are desirable to the President. The President of the Republic cannot make an appointment if the committees of the Houses reject the appointment by a three-fifths majority.
52 What finally needs to be considered are the powers which under Article 19 of the French Constitution the President of the Republic exercises with the Prime Minister’s counter-signature. These powers are subject to an agreement between the President of the Republic and the Prime Minister either on the initiative of the President of the Republic: appointments and termination of appointments of members of the Government on the recommendation of the Prime Minister (Art. 8(2)), negotiation and conclusion of treaties (Art. 52), accreditation and recalling of ambassadors and envoys extraordinary to foreign powers (Art. 14), supreme command over the Armed Forces and presidency over national defence councils (Art. 15), promulgation of Acts of Parliament and returning Acts to Parliament for reconsideration (Art. 10), right to grant pardon (Art. 65), or on the initiative of the Prime Minister: presidency over the Council of Ministers (Art. 9), passing of ordinances and decrees in the Council of Ministers (Art. 13(1)), appointment of civil and military officials (Art. 13). Day-to-day decisions relating to joint areas, namely foreign policy and defence, had to be taken by mutual agreement. Incidents in French diplomacy during cohabitation are a reminder that the President of the Republic and the Prime Minister remain rivals while impatiently anticipating the end of cohabitation which restrains both of them. No important international initiative could be launched by either side before the opposing side had first been convinced of the project’s justifiability or had decided to remain neutral with respect to the matter in question. In the case of any disagreement, negotiations had to be conducted. The actual inversion of power within the executive leads to the Prime Minister deciding on whether the policy of the President of the Republic will be carried out, the Prime Minister is the chief decision-maker. However, the President of the Republic does not need to assist the Prime Minister in carrying out a policy he disapproves of.
- 74 The draft Constitution (Art. 98) and the Constitution (Art. 96, 1990) included the following provis (...)
53 The Croatian Constitution has also been supplemented by constitutional norms unfamiliar to the French original.74
54 The function of myths is not to tell the truth but to affect the reality. In the same way the myth about the semi-presidential system in Croatia, “à la française” or “à la croate”, was intended to, on the one hand, animate the democratic political elite that has the permission to constructively criticize the existing order and, on the other hand, offer the voters a mobilising alternative. Likewise, the myth on the semi-presidential system was drawn on at the time of adoption of both the provisions on the system of government in the Croatian Constitution (1990) and amendments to these provisions by the 2000 constitutional amendments.
- 75 Mratović et al. 2000.
- 76 The Constitution of the Republic of Croatia, Consolidated text, including the corrigendum, OG 41/01 (...)
- 77 Smerdel 2010: 33.
55 The goal set in 2000 by constitutional law professors gathered in the Working Group of the President of the Republic for the Drafting of an Expert Basis for Constitutional Amendments,75 namely a system of government based on the principle of separation of powers as understood today, was achieved by means of the constitutional amendments of 2000 and 2001.76 Thus B. Smerdel noted:77
The basic concept and approach to the described task was formulated by the Working Group in the following way. Each one of the three highest-ranking state bodies is formed separately and each acts within its constitutionally set sphere of activity. However, the majority of the most important decisions require, in order to be taken, mutual cooperation, consultations or the consent of other bodies. Instruments such as the countersignature, requesting opinion or consultations, aim at directing, even forcing, the holders of the most important state offices to take part in consultations and, where necessary, reach compromises. On this conception the President of the Republic remains an important factor of the constitutional system, with a notable right of initiative with respect to the most important areas of state activity, but in doing so he has to constantly cooperate with the Government and the Croatian Parliament. Limits to his powers and the supervision of his exercising them are necessary in view of both the highly influential political position which the directly elected President holds and the fact that he is not politically accountable to Parliament.
56A system of parliamentary government characterised primarily by the Government's political accountability to Parliament, combined with the existence of the right to dissolve Parliament, was formed while obstacles to the re-establishment of the system of personalised power in the hands of the President of the Republic (1990-2000) were set up.
- 78 Sokol 2008.
- 79 Sokol 2008.
57 In Croatia new proposals for changing the constitutional system of government, in particular the constitutional position and role of the President of the Republic of Croatia, have been put forward. Eighteen years after the adoption of the Constitution of the Republic of Croatia (1990) and after the 2000 and 2001 constitutional amendments professor S. Sokol also joined the debate. In the column entitled Quater-Presidential or Parliamentary System published by the daily Večernji list he noted that today's relationship between the President of the Republic and the Government is not that of the semi-presidential system since the Government is not politically accountable to the President of the Republic but solely to the Croatian Parliament.78 The contemporary constitutional model characterises as singular a new hybrid of the semi-presidential system, the so-called “quarter-presidential system”, and by instilling insecurity in the form of a possible blockade of the executive and a politico-constitutional crisis of sorts as a result of the existence of constitutional provisions calling for agreement between the President of the Republic and the Government, it requires that for any legal or political act within the spheres of foreign policy and defence the President of the Republic obtain the Prime Minister’s countersignature and that state security be relinquished to the Prime Minister as an area falling within his exclusive competence. Professor Sokol thus argued for a change to the new system of government: “Therefore, since in 2000 we already discarded the semi-presidential system, we may as well take one step further and abandon the quarter-presidential system. Thus Croatia would finally adopt a system of parliamentary government that has been invoked and desired by many for so long”.79 During Ivo Josipović’s presidential term-of-office and after the election of the current President of the Republic Kolinda Grabar-Kitarović in 2015 this proposal has again become topical in the form of the request for the election of the President of the Republic in Parliament.
58The new system has been in existence for more than fifteen years now and one would therefore expect constitutional law science to stop taking an interest in the semi-presidential concept. However, since the very beginning the living myth about the semi-presidential system dominates Croatia's political life, with the same legitimacy politically mobilizes towards the achievement of different purposes depending on the goals of the proposers, and raises more questions than it can answer.