Presentation (appointment)
Under presentation one was appointment procedure understood, consisting of a binding proposal to a competent corporative body can only accept or reject. The presentation process was historically extremely important and can be seen as the forerunner of today's republican-democratic electoral process.
In canon law , the presentation is binding. Holders of the right of presentation can make suggestions for filling positions that can only be rejected for specified reasons.
Historical examples
In the imperial election in the Holy Roman Empire of the Kurspruch followed electors the coronation ceremony in Frankfurt , the question to the people (symbolized later only by a choir) which included whether it agreed with the choice of what plummeted to a mere symbolic form .
Remains of the presentation were found in the Dogenwahl in the Republic of Venice : At the installation ceremony in St. Mark's Basilica , the question belonged to the people, whether it wished to have (by the councils preselected) candidates Doge, which at least since the early Middle Ages regularly by acclamation "Sia ! Sia! ”(Eng .: 'Let it be!') Was confirmed; According to the sources, however, it seems that rejection has occasionally occurred in older times, so it was a real confirmation and not just an empty form.
For a long time, the German judiciary also knew the right to present judges . Often this right of proposal was used as compensation for former sovereigns for the loss of autonomous jurisdiction with the mediatization through the Reichsdeputationshauptschluss 1803. These national presentation rights ceased to exist with the entry into force of the Courts Constitution Act on October 1, 1879.
Governing Law
Canon Law
The right to present ecclesiastical offices very often lies in the same hands as the patronage right (protective and supervisory right) over a church and has its historical roots in the church's own system .
Roman Catholic canon law , along with various other types of transfer of office, recognizes the establishment of a binding presentation (Canon 147). It must be expressly provided for by law. In the absence of deviating regulations, the holder of the right of presentation must propose the new office holder within three months of becoming aware of the vacancy. Nobody can present themselves; the presentation cannot be made against the will of the proposed person. A legally presented person found suitable must be appointed to the office (canons 158 ff.). If the presenter is found unsuitable, the holder of the presentation right can present a second within one month. If he is found to be unsuitable again, the right of presentation for this occupation expires and the authority can freely transfer the office (Canon 161 f. CIC). The Protestant church law also has a right of presentation for the patron in patronage parishes.
The bishops of the Roman Catholic dioceses of Strasbourg and Metz in Alsace-Lorraine , for example, are determined by a presentation by the French President .
In the Church of England , the respective British monarch has a right of presentation for all higher ecclesiastical offices (cathedral provosts and diocesan bishops). The candidates are presented to the cathedral chapter concerned in a letter for election, which must be done within 30 days.
State law
Today, free choice prevails in most states and, following their example, also in private law organizations , but there are still significant examples of presentation procedures:
- The President of the United States , while binding appointments to most senior officials, requires the approval of the Senate, which can accept or reject candidates. Rejection also happens again and again. The number of rejections by the Senate is not limited, so this is a pure presentation. If the position of Vice President becomes vacant, the President also proposes a candidate, but in this case requires the approval not only of the Senate but also of the House of Representatives.
- The German Federal Chancellor is proposed to the Bundestag by the Federal President ; the Bundestag can accept or reject this proposal. Only if the Bundestag rejects the proposed candidate can it elect a Chancellor with a majority in free elections. In the history of the Federal Republic of Germany up to now, no proposal by the Federal President has been rejected, so all ordinary elections for Chancellor were not held as elections but as presentations (the only exception is the appointment of a Federal Chancellor by means of a constructive vote of no confidence ).
- The head of government of Sweden (Minister of State) is also determined by a presentation: The President of the Parliament (President of the Reichstag) proposes a candidate that Parliament (the Reichstag) can accept or reject. If the Reichstag rejects four proposals in a row, it must be re-elected.
- In some dictatorships or authoritarian states, the heads of state or government are not appointed by free elections, but by a yes-no vote on their administration, i.e. by presentation. Up until a few years ago, for example, the President of Egypt was determined by presentation: Parliament decided on a proposal that the people could only accept or reject. Sometimes the parliaments of such states are also determined by unit lists that can only be approved or deleted, which in fact has the same effect as a presentation procedure.
A special constitutional and political importance was in Prussia the right of presentation to the Prussian mansion , which determined the constitution of Prussia for the period from 1854 until the revolution in 1918 for some of the crown to acknowledging altadlige, earned by the state and land-owning families. The Prussian kings made only sparing use of the possibility of giving old noble families the right to present. Until the revolution of 1918, only 18 genders were granted this prestigious right.
Demarcation
Presentation in contrast to free choice
As with real free elections, there is a body for presentations, which regularly consists of a majority ( collective , parliament , people's assembly , cathedral chapter , etc.), but it does not have the right to designate a specific person at its own discretion elected applies, but it is a binding nomination of an authority, z. B. of the monarch , which it can only either accept or reject. If it rejects the suggested person, it cannot determine any other person itself, but has to wait for a new proposal, which it can only accept or reject. In order to force the appointment of a certain person, the body concerned must reject all other eligible persons beforehand until only this one remains. Since this is often not easily possible in reality (for example due to a lack of time), there are often regulations that only a certain number of people may be rejected, whereupon the proposal alone is sufficient for appointment. The influence on the selection of the person is therefore limited and cannot be compared with that within a free electoral process .
Because the authority in question introduces its proposed candidate to the committee whose approval it has to obtain, ie "presents", this procedure is called presentation. The right of the proposing authority is also called the right of presentation.
Presentation as opposed to free appointment
Appointment by an authority, e.g. B. President , head of government , superior in a company, happens freely, the nominating person can determine the person to be appointed. The solicitation of suggestions, advice, the request for consent of the subordinates or colleagues of the person to be appointed is voluntary and has no binding effect. In contrast to this, the proposing (presenting) person in the presentation procedure requires the approval of a wider group. This also means that the free appointment brings the appointed person directly into office, while at least two, often even three acts are necessary for the presentation: proposal - approval (- formal appointment).
Properties and dangers of presentation
The presentation is characterized by the fact that there is no free choice on the part of the committee that has to confirm the appointment, but that it can only vote yes or no. So it is not an election, it is a vote. This decisively limits the influence of the relevant committee on the selection of candidates.
Conversely, the authority that presents the candidate receives correspondingly more influence, which means at the same time: more power. As a rule, this distribution of power no longer corresponds to the prevailing view of the democratic structure of states or organizations.
Historically, the introduction of the presentation meant a significant increase in the influence of the people or the circles represented in the targeted body, as opposed to a pure appointment procedure, in which the selection and appointment of the appointed person was solely dependent on the will of the appointing authority. At the same time, the influence of the authorities previously in power was preserved to such an extent that a compromise to which both sides could agree could be found, which can still be clearly seen in the republican history of ancient Rome.
In some cases, however, the fact that a smaller, knowledgeable group or a competent individual can make a better selection of candidates than a large collective of mostly less knowledgeable people speaks in favor of the presentation. This always applies when a position to be awarded requires special knowledge, previous training or skills. In a democratic state these are often the judges' elections. When choosing a court, it also makes sense to make a professionally competent selection, but that the candidates are also checked by a democratically legitimized body that also weights factors such as human suitability, political orientation and the like. The task of professionally competent selection can best be performed by a qualified body such as the Ministry of Justice , a judges' selection committee , a law faculty or even a court itself, while the task of democratic control and legitimation is best performed by a parliament . A procedure that combines a pre-selection by the professionally qualified body with approval by the democratically elected body, i.e. a presentation procedure, seems to make sense.
swell
- ↑ See the description of the coronation in: Hans Haussherr (ed.): The memoirs of the knight of Lang . Koehler, Stuttgart 1957, pp. 114-116.
- ↑ Cf. Reinhard Lebe : When Markus came to Venice. The success story of the Republic of San Marco. Fischer, Frankfurt am Main. 1978, ISBN 3-596-26405-7 , pp. 51 and 152-153.
- ↑ US Constitution , Art. 2, Sect. 2, § 2–3.
- ↑ US Constitution , Amendment 25, Sect. 2.
- ↑ Basic Law for the Federal Republic of Germany , Art. 63, Paragraph 1.
- ↑ Swedish Constitution, Part 1: Form of Government, Chapter 6, §§4–6.
- ↑ Hartwin Spankuch : Das Preußische Herrenhaus, pages 174 ff, Droste Verlag, Düsseldorf, 1998, ISBN 3-7700-5203-X )