Decision No 6 of 16 May 2011 on Constitutional Case no 3/2011
Proceedings have been instituted on a petition lodged by 51 Members of Parliament (MPs) in respect of Article 98 of the Rules of Procedure of the General Assembly (last amended and supplemented State Gazette (SG) No 43/2010).
The Members of Parliament allege that the cited provision contravenes the preamble and Articles 4(1), 89 and 112 of the Bulgarian Constitution. The petitioners argue that it is incompatible with the principle of the State based on the rule of law and the constitutional provisions governing the relations and balance between the executive and legislative power in the context of parliamentary democracy as the form of government established by Constitution. The petitioners maintain that the content of the contested provision is unlawful as it fails to distinguish between a no-confidence and a confidence vote, which are distinct legal concepts (Articles 89 and 112 of the Constitution).
The Constitutional Court finds the petition meritorious for the following reasons:
In the motives set out in Judgment No 13/1992 in Case No 27/1992 the Constitutional Court ruled that the grounds on which one-fifth of the Members of Parliament may initiate a no-confidence vote in the Council of Ministers under Article 89 of the Constitution may include a failure of overall government policy, of the government’s programme or another specific reason. On the same grounds the Council of Ministers may request a vote of confidence from Parliament in accordance with the procedure laid down in Article 112 of the Constitution. The consequences of a no-confidence vote acted upon in Parliament and of a rejected confidence vote are the same – the government falls from power. However, this is the only feature that the two procedures have in common according to the Constitution.
In the motives to the abovementioned judgment the Constitutional Court has identified another stand-alone reason for initiating a no-confidence vote under Article 89 of the Constitution – the violation of a law by the Council of Ministers. This is so because Article 105(1) of the Constitution expressly obligates each government to carry out its functions and tasks strictly within the remit of the Constitution and the body of national law. Each violation of this immutable obligation even if it occurs during the interim six-month period between two no-confidence votes initiated on the same grounds (Article 89(3) of the Constitution) may constitute grounds for a subsequent no-confidence vote. When initiated on the grounds of a breach of law, a no-confidence vote may take place at any time.
However, should a no-confidence vote in the Council of Ministers in respect of the government’s overall policy be rejected the interim six-month period becomes operative and another no-confidence vote on the same grounds may be raised only after that period has elapsed. Furthermore, during the period concerned no-confidence votes may not be raised over specific aspects of the government’s policy, i.e. ad hoc no-confidence votes are not allowed (Article 112(1) of the Constitution). It therefore follows that according to the fundamental law “overall policy” is a blanket term that includes “specific reasons or occasions” on the grounds of which a no-confidence vote may be raised.
In the context of the parliamentary democracy as the established form of government the no-confidence vote is an instrument for parliamentary control and ensuring political accountability used by the opposition, i.e. the parliamentary minority or a part of it (at least one-fifth of the Members of Parliament). In the light of modern Parliamentarism the political accountability of a government is not limited solely to the possibility for its mandate to be terminated early when it loses the political support of the majority of the members of the legislative body. A no-confidence vote requested by the opposition is a possibility for problems of major consequence for society, including the policy pursued by the ruling majority, to be placed in the focus of public attention. This act of the minority in opposition is designed to shape certain attitudes in society and formulate opinions conducive to launching a wide debate on developments, processes in society, political actions and decisions taken by the government. In this sense the use of the a no-confidence vote as an instrument is a routine exercise for the opposition even when the government enjoys the comfort of a large and stable parliamentary majority. Although it is often clear that a no-confidence vote has no chance of success it may still ultimately result in a government falling from power. The debates attending each no-confidence vote are a means of exercising the right of political minorities in democratic societies to oppose the official policy line. They are an important instrument for parliamentary control.
At the same time in order to protect the constitutional system from political destabilisation and prevent the work of the executive power being blocked should the opposition abuse its right to raise no-confidence votes, the Constitution envisages certain safeguards that reinforce the position of the Council of Ministers. One of them is the confidence vote (Article 89 of the Constitution), which must be seconded by an absolute majority of the votes of half of the Members of Parliament. The most significant safeguard in this respect is the prohibition to initiate another no-confidence vote on the same grounds for a period of six months following the rejection of the vote even where it is proposed by a different group of MPs. Where a no-confidence vote in the government or the Prime Minister raised by the opposition on the grounds of the overall policy pursued is rejected a six-month period follows during which the opposition is not allowed to raise another no-confidence vote except on the grounds of a purported breach of law by the Council of Ministers.
The vote of confidence is an independent constitutional instrument, which plays a distinct legal and political role. Its similarity to a no-confidence vote insofar as the constitutional grounds on which it may be initiated, does not mean that the two instruments are identical. The constitutional lawmaker intended the confidence vote to be used by the government to consolidate and reinforce parliamentary trust in its policy at a time when the ruling majority becomes fragile under public pressure or due to a restructuring of the political domain; when the government radically departs from its declared political programme or priorities or when other exigent circumstances that require the political responsibility for important decisions to be shared come into play. A no-confidence vote raised by the opposition is a means of attempting to remove a government from power by seeking to engage its political accountability or putting pressure on it to alter pursued policies. Conversely, a vote of confidence sought by the Council of Ministers is an instrument for active protection aiming to enhance the political stability of the executive power and demonstrate the common will of the ruling majority to pursue a chosen policy line.
The legal nature of the no-confidence vote under Article 89 and of the vote of confidence under Article 112 of the Constitution is similar as regards the subject matter of the “test” to be conducted by putting the motion to the vote of the parliament. In other words, in both cases the vote shows whether a consolidated parliamentary majority exists at Parliament, which supports the executive powers vested in the Council of Ministers. The legal implications of a successful no-confidence vote for the political accountability of the government and the refusal to support a vote of confidence requested by the government are identical. In both cases the government falls from power. At the same time there are considerable differences between the two legal instruments placed at the very core of a parliamentary democracy. Another difference is that a no-confidence vote can be sought by at least one-fifth of the Members of Parliament (Article 89 of the Constitution) whilst a vote of confidence can be sought by the Council of Ministers (Article 112 of the Constitution). The majority required for adopting a decision is also different – an absolute majority (more than half of the votes of all MPs) in the case of a no-confidence vote and an ordinary majority (more than half of the MPs present during the vote) in the case of a vote of confidence. The parliamentary procedures to be followed in each case are also different. According to the Constitution the legal implications of a successful no-confidence vote are identical to an unsuccessful vote of confidence – in either case the government must resign. Where a motion of confidence is successful, respectively a no-confidence vote unsuccessful, the government remains in power but different legal consequences arise. Where a no-confidence vote is rejected by Parliament the government remains in office and enjoys the comfort of a forthcoming period in which its power cannot be challenged by a new vote on the same grounds. This is expressly stipulated in Article 89(3) of the Constitution and the provision concerned applies solely to no-confidence votes.
However, the national Constitution does not envisage a similar safeguard in the case where the government has received parliamentary support following a requested vote of confidence. This conclusion is warranted both by a literal and a systematic interpretation of the provision laid down in Article 112 of the Constitution. It derives from, amongst other things, the general spirit and principles of the parliamentary democracy as a form of government enshrined in Article 1(1) of the Constitution.
The provisions governing a vote of confidence are laid down in Article 112 of the Constitution, which specifies the party that may initiate it, the grounds on which it may be sought and the requisite majority for adopting a decision. The only possible legal implications of a vote of confidence entail the resignation of the government if the vote is rejected by Parliament. The interim safeguard period of six months envisaged in Article 89(3) of the Constitution applies solely to the temporal limitation, i.e. to the period in which MPs may not put forth another no-confidence vote. This safeguard acts to protect the stability of the government against constant and unreasonable attempts to continually raise no-confidence votes. Where a Parliament has seconded a vote of confidence sought by the government, the stipulated six-month interim period is inapplicable from a constitutional standpoint. Hence the provision of Article 98 of the Rules on the organisation and activities of the National Assembly contravenes the principles of the State based on the rule of law and of supremacy of the fundamental law (Articles 4(1) and 5(1) of the Constitution, respectively).
The provision laid down in Article 98 of the Rules on the organisation and activity of the National Assembly according to which a successful vote of confidence sought by the government means that one-fifth of MPs may not raise a no-confidence vote on the same grounds in the following six months unreasonably restricts the rights of the minority to exercise one of the basic functions of a parliamentary opposition within the form of government established by the Constitution. This creates conditions in which the government may abuse its right to seek a confidence vote thus fully blocking the possibilities available to the opposition to put forth motions of no confidence either by challenging the overall policy of the government, its programme or specific actions or policies it pursues.
In effect, the amended Article 98 of the Rules of Procedure of the National Assembly means that theoretically a government could seek a vote of confidence every six months to be seconded by the parliamentary majority, which would deprive the opposition of a possibility to hold the government accountable on its own initiative in line with the interests of voters. This would render the no-confidence vote envisaged in the Constitution meaningless. As it currently stands Article 98 of the Rules of Procedure of the National Assembly allows the opposition to be purposefully deprived of reasonable possibilities to raise discussions and put forth motions of no confidence in the government. This could lead to a dictatorship of the majority and erode political pluralism, which is at the core of political life in Bulgaria (Article 11(1) of the Constitution).
The wording “a seconded vote of confidence” added to Article 98 of the Rules of Procedure of the National Assembly alters the nature of the six-month period envisaged in Article 89(3), which acts as a safeguard and reinforces the stability of the government whilst being a deterrent and having a disciplining effect on the opposition, inasmuch as it expands its scope to incorporate not only the hypothesis of a rejected no-confidence vote but also that of a successful vote of confidence initiated by the government. The remainder of the wording of Article 98 of the Rules of Procedure of the National Assembly literally reproduces the content of Article 89(3) of the Constitution. By adding the text concerned the National Assembly has exceeded the remit of the powers vested in it. According to Article 73 of the Constitution the rules on the organisational arrangements and activity of the National Assembly are to be enacted on the grounds of the Constitution and a set of rules adopted by the Parliament. The rules concerned may apply solely to matters that are not expressly stipulated in the Constitution. The legal implications of a rejected no-confidence vote or a seconded vote of confidence in the government form an essential part of the two instruments envisaged in the Constitution neither of which covers the organisational arrangements or the activity of the National Assembly, which are governed by the express provisions laid down in the fundamental law. Hence it follows that Article 98 of the Rules of Procedure of the National Assembly insofar as it concerns the motions of confidence and no confidence in the government contravene Article 73 in conjunction with Article 5(1) of the Constitution.
Председател: Евгени Танчев