Ministerial responsibility
The term ministerial responsibility (also: ministerial or ministerial responsibility) discusses and regulates the relationship between a minister and the monarch , the law or the representative body . The term belongs to the time of constitutionalism , especially in the 19th century ; an attempt was made to reconcile the monarchical principle with the modern representative constitution . On the one hand, the monarch was considered inviolable and could not be prosecuted for his actions, on the other hand, the power of his government should be limited under the supervision of the people's representatives.
The (historical) constitutional law differentiates between different forms of ministerial responsibility, especially the legal (criminal) from the parliamentary (political). The first is primarily about whether a minister can be convicted by a court for breaking the law , and the second is about whether the parliament could influence the minister's activities.
Depending on the country and epoch, there are again major differences in what exactly is meant by ministerial responsibility and how it is implemented in reality. The question of ministerial responsibility also arises in parliamentary democracies; there, the parliament can ensure that a minister is replaced, both in the case of legal misconduct, personal misconduct and because of different political views. All government action is subject to parliamentary control , so this more modern term is more comprehensive than traditional ministerial responsibility.
Starting position
In the European monarchies before about 1800, the executive was determined exclusively by the monarch. The monarch decided who to appoint to the government and what members of the government could do. These members of the government were the ministers , which originally meant "servants". Later their cooperation as a cabinet was regulated more formally, one also spoke of the "ministry" or "council of ministers" and meant all ministers. In addition to them, the monarch was also part of the government.
In premodern times, ministers had more freedom of action, but in critical situations they were in danger of the monarch executing them or taking away the wealth and life of the entire family. No distinction was made between political errors, offenses against the constitution and offenses as a private person.
In the years around 1800, before, during and after the French Revolution , there was a dispute about the role of the people in the state. Even if the sovereignty of the people has not yet been assumed, according to the opinion of liberals and moderate conservatives, a constitution should exist. According to a representative constitution, the people, or more precisely the rich or educated, should be able to vote for a representative body, i.e. a parliament . Depending on the country, the parliament had more or less influence on legislation and the state budget.
A problem arose from this: the monarch had been "inviolable" or irresponsible since absolutism ; he could not commit an injustice. So he couldn't be held responsible for his actions in court. Hence the monarchical government still had great power, even if there was already a constitution.
Ministerial accountability was a means of reconciling the principle of the inviolable monarch with the principle of constitutionalism. Accordingly, the actions of the monarch were countersigned by the responsible minister. With this " contraseign " the minister took responsibility for the action. If the minister violated the law, he could be prosecuted for it, while the monarch remained inviolable.
Legal ministerial responsibility
Criminal or legal ministerial responsibility was defined as the fact that an office holder was responsible under criminal or civil law if he performed his office incorrectly, perhaps even culpably, in a specific case. Political or moral considerations were not yet taken into account.
This legal ministerial responsibility only had its real meaning when the minister actually had to fear a ministerial charge and its consequences. The exact rules for this depended on the respective country; some constitutions stipulated ministerial indictments only for breaches of the constitution or certain constitutional breaches, others also for other violations of the law, others in turn for corruption or treason.
Legal ministerial responsibility indirectly strengthened the position of ministers. The monarch could still dismiss them, but they could plead their responsibility to him; they were no longer purely executive servants. Adolf Samuely expressed this idea in 1869 as follows:
- “On the other hand, it is just as natural to entrust the responsible ministers with the autonomous and independent exercise of the executive, because it would be contrary to all principles of justice and equity to hold a passive instrument responsible while the actually active organ, the commanding one, is responsible Sovereign, would have to declare irresponsible. According to this theory, the ministers appear as the independent bearers of the executive, as the representatives of the king who are independent in their sphere and who only have the right to dismiss the organs of the executive at will, in accordance with his rights to dissolve the parliament. "
The new meaning of the ministers was also due to the fact that the administrations were expanded. After these partial modernizations there was an increased need for coordination of the hierarchical levels, the communication possibilities of the old colleges were missing. Central power was given to specialist ministers who belonged to a council of ministers under a prime minister. No longer the personal closeness to the monarch, unlike in the favoritism system, was decisive, but the right to be present when the specialist ministers presented the monarch.
Political ministerial responsibility
The political responsibility of the ministers is much more complicated and less clearly regulated. What is meant by this is the one that is controlled by the parliament, which is why one also speaks of parliamentary ministerial responsibility. It is a question of what means the constitution or practice gives parliament to exercise control, to obtain information or even to influence the dismissal of a minister.
Common means of control in the history of constitutionalism were:
- A right to quote with which the parliament could oblige a minister to appear in parliament.
- This also means the minister's duty to provide requested information.
- The right of the parliament to set up a committee of inquiry.
- A downright vote of no confidence, in which parliament demanded the resignation of a minister, was still rather unusual. As a rule, it was at most an expression of opinion by parliament, not a state act that would have directly forced the resignation of a minister.
Individual countries
Belgium
The Belgian constitution of 1831 already stated that the king's person is inviolable and that his ministers are responsible (Art. 63, now 88). The king can never be prosecuted or convicted for an offense, whether criminally, civilly or politically. Ministers or MPs may not publicly discuss, criticize or judge the political conduct and actions of the king as head of the executive branch.
According to other articles of the constitution (some of which are considerably younger) the king cannot act alone because of inviolability; the ministers are responsible to the chamber and can be reported. They cannot escape their responsibility by appealing to the king, for example. The king appoints ministers by royal decree, with the appointment of a single minister being co-signed by the prime minister . Ministers are dismissed at their own request or at the request of the prime minister. Since 1993 the constitution (Art. 96) has stipulated that the king must dismiss the government if an absolute majority in the chamber demands this by means of a vote of no confidence. At the same time, such a vote of no confidence brings a new prime minister to the king.
Germany
A ministerial responsibility can already be found in the early constitutions of southern Germany (from 1808). However, there was little regulation about how it should actually take effect. Actual, namely political-parliamentary ministerial responsibility was only provided for by the constitutional orders of the Frankfurt National Assembly in 1848/1849, in which parliament could indict a minister, also for political reasons.
In the North German Confederation and the German Empire (1867–1918) the constitution only stated that the Federal Chancellor or Reich Chancellor was "responsible". There was no provision as to whom and how a member of the government could be held accountable. However, such provisions were also lacking in other constitutions of constitutional monarchies of the time. The implementation of parliamentary governance, in which the parliament ultimately decides on the composition of the government, depended not so much on the constitutional text as on constitutional reality.
It was not until 1917 that parliamentary ministerial responsibility took hold in Germany, and in October 1918 it was formally enshrined in the constitution as a result of the October reforms. The system was similar in the Weimar Republic (1919–1933): the head of state installed the government, but if there was a lack of confidence in the Reichstag, the ministers had to resign. In the Federal Republic of Germany (from 1949) the head of government (and thus the ministers) is elected by parliament and replaced by a successor.
England or Great Britain
When changing from Jakob II. To Wilhelm III. (1689) Parliament in London enforced the Bill of Rights . Unlike in American constitutional history, this does not mean a list of the rights of citizens, but of parliament vis-à-vis the royal government. It made government action dependent on parliament, especially in financial matters. The king owed his title to parliament; the monarchy became parliamentary and constitutional. The sovereign became sovereign-in-parliament.
However, one of the king's still extensive prerogatives was the appointment and dismissal of ministers. In order to carry out the royal policy, however, the ministers had to practice political influence management, since a framework of constitutional rules had to be observed. In the course of the 18th century, at the time of the House of Hanover , the former royal power turned into mere influence. Those who wanted to become ministers could benefit from the king's support, but this was neither sufficient nor necessary. The support of the House of Commons was important.
Nevertheless, until the end of the 18th century, ministers were only considered advisors. If the king had made a decision, a minister had to follow it. After George III. had to appoint the younger Pitt as prime minister, the king was defeated in the ensuing power struggle: After a dissolution of parliament, Pitt achieved an electoral victory that could be understood as the refusal of voters against the king's course. George III kept Pitt in office, as otherwise it would have come to a prime minister whom he feared even more. The system of government at the time is less of a modern cabinet government than a partnership between the king and the prime minister he has appointed. In the broadest sense, they were responsible to parliament and the electorate, both of which, however, were also under the influence of the king (including through voter bribery).
Since 1717 the king has taken part in cabinet meetings less and less, and not at all since 1837. His place was taken by a minister who later became prime minister. This, and less so the king, began to determine the basic lines of politics. Consequently, the king should no longer be held responsible for politics. Palmerston put it this way in 1859:
“It is the principle of the British Constitution that the sovereign cannot do wrong, but that does not mean that royal authority cannot do wrong; it means that if something wrong is done, the public servant who advised the act must be held responsible for the wrong act. "
It is often assumed that England has had a parliamentary government since the 18th century. But the assertion of the journalist Walter Bagehot that the king no longer had any power and could only give advice to the government was still a political and philosophical ideal in the middle of the 19th century. The cabinets only became dependent on a parliamentary majority between the first and second Reform Acts (1832–1867), and it was not until the 20th century that the king left all government acts to the ministers in practice. The development of ministerial responsibility was therefore very gradual.
France
In the French Revolution from 1789 onwards, the Declaration of Human and Citizens' Rights stipulated that society could demand accountability from public officials for the exercise of their office (Art. 15). However, the constituent assembly followed Montesquieu's view that, in the interests of the separation of powers, ministerial responsibility was only a compensation for the king's lack of responsibility. Therefore the constitution of 1791 only provided for criminal, not political (parliamentary) responsibility. Parliament had no powers over against and was only allowed to decide whether a minister was to be tried before the State Court. Reasons could be violations of the law and waste of money. The constitution of 1793 (which did not come into force) recognized the right to quote.
In practice, even in subsequent constitutions, the ministers remained responsible only to the king or later to Napoleon. In the renewed kingdom from 1814 onwards, parliament endeavored, for example, to require government reports on budget law and thus to exercise control. Committees of inquiry were set up, and from 1831 the National Assembly was granted a right of interpellation. However, the government often refused to respond with reference to interests of secrecy. It remained the exception that ministers carry back due to an initiative of parliament.
Napoleon's constitution of January 1852 tailored the system of government entirely to the head of state. The ministers were only responsible to him, there was no separate head of government, the parliament could neither ask questions nor control the ministers.
Only after the fall of Napoleon in 1870 did the Loi Rivet of 1871 provide that ministers were responsible before parliament. Even so, there were still no precise rules on how accountability could be enforced in practice. The constitution of 1875 was the first to expressly state parliamentary responsibility. The scope of responsibility grew, and Parliament made ministers responsible for acts of subordinates and acts of the President that they had countersigned. There was more parliamentary intervention, especially after 1879. The law of interpellation, which had existed since 1869 and was mainly used for local and individual problems, proved to be less effective. Parliamentary committees of inquiry were a widely used control tool.
The authoritarian state under Marshal Pétain , the Vichy regime , again made the ministers responsible only to the head of state. Paradoxically, according to Wuttke, the parliament's vote of no confidence was officially introduced just now. However, after a successful vote of no confidence, the head of state was allowed to dissolve parliament, and in the authoritarian state the regulations were more of a theory anyway. The 1946 constitution reintroduced parliamentary ministerial responsibility and maintained the vote of no confidence.
Netherlands
Historical development
After the Napoleonic era, the Kingdom of the Netherlands was established. King Wilhelm I ruled by the grace of God, in the manner of an enlightened despot, for which the constitution of the time gave him the opportunity. Nevertheless, he was not an absolute monarch, because the constitution on which he swore an oath bound him to the law. Some state activities had to have a formal law, and a law had to be approved by the king and both houses of parliament. Above all it was about taxes, the general budget approved for ten years and provisions in criminal and civil law. Otherwise, William ruled on the basis of royal decrees; in general, foreign and defense policy were the king's domain alone.
The king could appoint and dismiss the ministers who were responsible only to him at his own discretion; the chambers were not allowed to call the king responsible for his policies. The principle that the king was inviolable had been taken so for granted that it was not even included in the constitution.
Members of parliament from what would later become Belgium , who had been influenced by French authors , advocated ministerial responsibility . Since they felt that they were treated worse as the southern Dutch than the northern Dutch, they wanted to control the government through ministerial responsibility. In 1829 they even put their request on the Chamber's agenda, but the king refused - even after the 1830 uprising that was to lead to the secession of Belgium. It was only after the split was recognized that MPs, ministers and greats in the financial world were able to force the king to change course.
Constitutional amendments in 1840 and 1848
In 1840, two major constitutional changes were passed, which Wilhelm took as the reason for his abdication. The ministerial criminal responsibility introduced (Art. 75) stated that ministers were criminally responsible for breaches of the constitution or the law. The ministers' own actions and their involvement in the execution of a royal decree were affected. Art. 76 (today's Art. 47) said that a royal decree ( besluit ) had to be co-signed by a minister ( contraseign ). From this the participation was evident.
During the major constitutional revision in 1983, Art. 75 with criminal liability was abolished. In its place, Art. 119 only contained a regulation on abuse of office (by ministers, among others). The criminal liability of 1840 was not about abuse of office, since it was to be punished anyway, but about government actions that violate the constitution or laws. In the more than a hundred years that this article has been in existence, there has never been a ministerial charge. One explanation for this is the consensus in the Netherlands that tolerated a vulnerable minister until the next election, another is the character of ministerial responsibility, which in other countries is more of a political one.
In 1848, the year of the European revolution, Wilhelm II accepted constitutional amendments that went much further. With regard to the king, Art. 53 (now Art. 42 Section 2) called the king “inviolable” and the ministers “responsible”. Parliament was given (Art. 89, now Art. 68) a right to information. Parliament also became stronger because the King no longer appointed the members of the First Chamber. In the decades that followed, it became generally accepted that the parliament de facto decided on the members of the government, even if the constitution de iure still allowed the monarch to appoint and dismiss the ministers.
Modern constitutional law
In Dutch constitutional law, ministerial responsibility is still considered to be the core of the democratic constitutional state. There are four types of responsibility:
- Responsibility according to civil law is not regulated further, the general provisions apply. The state is a legal person and is therefore responsible for what its organs (such as ministers) do. A minister can also be held personally liable.
- Financial responsibility asks about liability for financial actions when they are not covered by the budget. This, too, is not specifically regulated and of little interest in the literature.
- The ministerial responsibility for criminal law is more of historical significance than a step towards political.
- Politically, the minister is responsible to parliament. The minister is responsible for his own actions and those of his subordinates, but also for those of the Council of Ministers (excluding the government, the monarch).
The concept of ministerial responsibility is not the last to discuss the extent to which the government (or the prime minister) is responsible for the monarch's actions. So it is difficult in reality to differentiate between the king as a private person and the king as an official. If the king says something privately, it can become public and thus be interpreted as an act in his public role. According to one commentator, it is up to the prime minister to make it clear to the king to what extent the king's private conduct affects the interests of the state.
The inviolable king and the responsible ministers form a duality. For the sake of inviolability, what the king and minister discuss must remain secret; one speaks of the secret van Noordeinde (secret of Noordeinde , the royal palace in The Hague). This duty of confidentiality is also protected from the duty of a minister to provide information to parliament. In addition, members of the Chamber, journalists and all other citizens have the practice of not quoting the king at least verbatim.
See also
literature
- Herbert Schambeck: The ministerial responsibility . CF Müller, Karlsruhe 1971.
Web links
- Ministerial responsibility on Parlement.com (Dutch)
supporting documents
- ↑ Wolfgang Reinhard: History of State Power. A comparative constitutional history of Europe from the beginning to the present. 3rd edition, CH Beck, Munich 2002 (1999), pp. 179-181.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne [u. a.] 2005 ( International Law - European Law - Constitutional Law 35), p. 8.
- ↑ Adolf Samuely: The principle of ministerial responsibility in the constitutional monarchy. A treatise on constitutional law , published by Julius Springer, Berlin 1869, p. 1.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, p. 7.
- ↑ Adolf Samuely: The principle of ministerial responsibility in the constitutional monarchy. A treatise on constitutional law , published by Julius Springer, Berlin 1869, p. 13.
- ↑ Wolfgang Reinhard: History of State Power. A comparative constitutional history of Europe from the beginning to the present. 3rd edition, CH Beck, Munich 2002 (1999), pp. 179-181.
- ↑ Karel Rimanque: De grondwet toegelicht, gewikt en weighed . Intersentia, Antwerp / Groningen 1999, p. 184.
- ↑ Karel Rimanque: De grondwet toegelicht, gewikt en weighed . Intersentia, Antwerp / Groningen 1999, p. 184.
- ↑ Karel Rimanque: De grondwet toegelicht, gewikt en weighed . Intersentia, Antwerp / Groningen 1999, p. 193.
- ^ Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, pp. 5-7.
- ^ Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, p. 8.
- ^ Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, p. 9.
- ^ Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, pp. 11-13.
- ^ Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, p. 14.
- ↑ "The maxim of the British Constitution is did the Sovereign can do no wrong, but did not does mean did no wrong can be done by Royal authority; it means that if wrong be done, the public servant who advised the act, and not the Sovereign must be held answerable for the wrongdoing. ”Quoted from: Vernon Bogdanor: The Monarchy and the Constitution . Clarendon, Oxford 1995, p. 14.
- ↑ Diederick Slijkerman: Hetkret van de ministeriële verantwoordelijkheid . De verhouding tussen koning, kabinet, Kamer en kiezer, 1848-1905. Bert Bakker: Amsterdam 2011, pp. 14/15.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 25/26.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 26–29.
- ↑ Peter Claus Hartmann: French constitutional history of the modern age: 1450-1980. An overview . Scientific Book Society Darmstadt 1988, p. 96.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, pp. 30/31.
- ^ Julia Wuttke: The responsibility of government members in Germany and France . Carl Heymanns Verlag, Cologne 2005, p. 31/32.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, pp. 16/20.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, p. 16.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, p. 17.
- ↑ Diederick Slijkerman: Hetkret van de ministeriële verantwoordelijkheid . De verhouding tussen koning, kabinet, Kamer en kiezer, 1848-1905. Bert Bakker: Amsterdam 2011, pp. 19/20.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, pp. 17/18.
- ↑ PPT Bovend'Eert: Ministeriële verantwoordelijkheid . Ars Aequi Libri 2002, Nijmegen, p. 23.
- ↑ PPT Bovend'Eert: Ministeriële verantwoordelijkheid . Ars Aequi Libri 2002, Nijmegen, pp. 25/26.
- ↑ Diederick Slijkerman: Hetkret van de ministeriële verantwoordelijkheid . De verhouding tussen koning, kabinet, Kamer en kiezer, 1848-1905. Bert Bakker: Amsterdam 2011, p. 22.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, p. 18.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, pp. 18/19.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, pp. 61/62.
- ↑ PPT Bovend'Eert: Ministeriële verantwoordelijkheid . Ars Aequi Libri 2002, Nijmegen, p. 21.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, pp. 66/67.
- ^ BP Vermeulen: De Koning in het Nederlandse staatsrecht . Ars Aequi Libri, Nijmegen 2005, p. 68.