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The German constitutional court already examined the legitimacy of a parliamentary vote of confidence in 1983. DW-WORLD looks back to that court ruling and the implications it may have today.
Precipitating his own "downfall" in 1982: Helmut Kohl
In 1982, the Free Democratic Party (FDP) broke up its coalition with the governing Social Democratic Party (SPD) and aligned itself with the opposition Christian Democratic Union (CDU). In a constructive vote of confidence, the parliament withdrew its support for Chancellor Helmut Schmidt (SPD) and elected Helmut Kohl (CDU) as his successor.
Kohl, however, was not entirely satisfied with the outcome. He wanted to seal his legitimacy as the German chancellor in a general election. On Dec. 17, 1982, Kohl posed the question of confidence to the parliament with the intention of losing the vote, which he did with 8 to 218 votes. 248 members of the Christian Social Union (CSU) and FDP abstained from voting.
German President Karl Carstens dissolved the parliament on Jan. 6, paving the way to new elections. The coalition consisting of CDU/CSU and FDP already knew they would win the new elections.
A question of interpretation
The Federal constitutional court in Karlsruhe
Several members of the parliament took the issue to the Federal Constitutional Court in Karlsruhe because of what they considered the "faked" vote of no confidence. The court reached its decision on Feb. 16, 1983, and issued a six to three opinion backing the president's decision to dissolve the parliament.
Today, it seems, however, that the guidelines which the judges attached to their decision made the new elections after the question of no confidence highly dubious from a constitutional point of view.
For example, guideline 6 read: "The chancellor seeking the dissolution of the parliament in accordance with article 68 of the Basic Law (of the Federal Republic of Germany) ought to initiate this procedure only if he no longer has the political warranty of controlling the existing balance of power in the parliament. The political balance of power in the parliament must be interfering with or paralyzing his ability to act to such an extent that he becomes unable to follow a policy which enjoys the steady confidence by the parliament majority."
But there was, in fact, no such disruption between the parliament majority and the chancellor in 1982. Just one day before Kohl asked for a confidence vote, the CDU/CSU - FDP coalition passed the budget with a clear majority.
Should the president listen to the chancellor?
According to the guidelines, the chancellor should not invoke article 68 to ask for "a negative answer to the confidence vote at a moment that seems appropriate to him with the goal of instigating the dissolution of the parliament." According to the Basic Law, even the "exceptional difficulties posed by the tasks in the current election period" do not merit the dissolution. This particular guideline could have an even greater resonance today.
Is losing on purpose actually fair game? It is for judges of the Federal constitutional court to decide
As far as the president is concerned, in his decision to dissolve the parliament, he needs to consider "the chancellor's evaluation and judgment of the situation, unless the evaluation of some other competent instance refusing the dissolution were clearly preferable to the political situation of the chancellor's evaluation." In plain language, that means that even though the president should orient himself towards the chancellor, he is, nonetheless, free to make his own decision whether to dissolve the parliament or not.
Although a sufficient number of concerns were voiced in 1983, the judges rejected the charges brought in by the members of the parliament. The court didn't seem to be willing to oppose the will of the parties and the majority of the population. The noble postulates and high constitutional standards set up in the guidelines were clearly not satisfied.