SUBMISSION OF PAPER TO THE WORLD CONGRESS FOR CONSTITUTIONAL

LAW 2014
NAME: Roxan Venter (Ms)
INSTITUTION: University of Johannesburg, South Africa
CONTACT DETAILS:
EMAIL: rventer@uj.ac.za
WORK TEL: +27 (0)11 559 4468
FOR SUBMISSION TO WORKSHOP 15: THE TRANSFORMATION OF THE
PRINCIPLE OF THE SEPARATION OF POWERS

TITLE: MOTIONS OF NO CONFIDENCE AND THE SEPARATION OF POWERS:

A COMPARATIVE PERSPECTIVE

1 Introduction
Most states recognise the need for a system of separation of powers between the legislative,
executive and judicial authority to counter over-concentration of power and therefore to avoid
abuse of powers. Likewise most states usually place some emphasis on the other important
aspect related to the separation of powers, namely the creation of a system of checks and
balances to ensure that legislative, executive and judicial organs act in a way that is consistent
with the constitutions and the legal rules of those states, while also ensuring accountability
and transparency of these organs. It is therefore inevitable that a state’s legislative, executive
or judicial authority will, at some time or another, be called upon to scrutinise the exercise of
authority by another government organ. This means that these organs will necessarily have to
reconcile their scrutiny with the principle of separation of powers. Reconciling these
seemingly conflicting principles could however raise some difficult constitutional questions
and lead to the proverbial “constitutional minefield”. This not only occurs in parliamentary
systems, which is the focus of this paper, but also in non-parliamentary systems such as the
United States of America. 1 What degree of overlapping between these organs would or would
not be an acceptable deviation from the separation of powers? For example, if a state
authorises its courts to act as a check on the legislature by scrutinising the internal rules and
1
See Masterman The Separation of Powers in the Contemporary Constitution: Judicial Competence and
Independence in the United Kingdom (2011) 12-13; James Madison also regarded the separation of powers in
the American context to provide a “double security” to the people where powers are separated and performed by
different organs which, in turn, also control each other. However this also sometimes causes tension between the
separation of powers and the system of checks and balances (Tushnet The Constitution of the United States of
America: A Contextual Analysis (2009) 15-17, 83-84).

1
procedures of parliament with regard to motions of no confidence, it runs the risk of
encroaching on the legislature’s privilege to determine its own procedure and in doing so,
offends the doctrine of separation of powers. On the other hand, if the same court refuses to
scrutinise an unfair parliamentary procedure it would be shirking its responsibilities in terms
of the system of checks and balances and possibly also its duties in terms of the state’s
constitution. The duty placed on a court in such a case is therefore twofold: not only to
consider its own duty as a check on the legislature, but also to consider and enforce the duty
of the members of parliament as a check on the executive. Furthermore, as in the case of
judicial scrutiny, a state’s legislature will also have to reconcile its control function over the
members of the executive with the principle of separation of powers. In the chess game that is
multi-party politics a motion of no confidence adopted against a state’s national executive is
not only an important manoeuvre up the sleeve of any member of the legislature in most
parliamentary systems, but it is also one of the most important legislative control mechanisms
to ensure accountability of the executive to the legislature as well as giving effect to the
constitutional principle of majority support which underlies most parliamentary systems. If
the legislature were however to neglect its duty to scrutinise the actions of members of the
executive, or failed to create mechanisms to make such scrutiny possible, the legislature
would not be fulfilling its duty as a check on the executive.

This paper therefore strives to indicate how the principle of separation of powers may be
reconciled with a system of checks and balances in the context of motions of no confidence.
This is done by comparing the legal position in three very different states with regard to
motions of no confidence and by indicating how these states reconcile their judicial scrutiny
of parliamentary rules and procedures and the control by the legislature over members of the
executive with the principle of separation of powers. This is followed by some concluding
remarks on the ideal balance between separation of powers and a system of checks and
balances in the context of motions of no confidence.

2 The position in South Africa

Separation of powers is a principle recognised by the Constitution of the Republic of South
Africa of 1996. Sections 43(a), 85(1) and 165(1) of the Constitution entrenches the separation
of powers between the legislative, executive and judicial authority respectively, while section
1(c) of the Constitution lists the “supremacy of the Constitution and the rule of law” as a
value that underlies the Republic. The South African Constitution also contains the following

2
provisions: section 2 provides that “[t]his Constitution is the supreme law of the Republic;
law or conduct inconsistent with it is invalid, and any obligations imposed by it must be
fulfilled”; section 172(1)(a) provides that “a court must declare that any law or conduct that
is inconsistent with the Constitution is invalid”; while section 55(2)(a) of the Constitution
provides that “[t]he National Assembly must provide for mechanisms to ensure that all
executive organs of state in the national sphere of government are accountable to it”.
Together these provisions create a system of checks and balances that ensure that the
legislative as well as the executive authority remain accountable and that their actions
conform to the provisions of the supreme Constitution. Undoubtedly this leads to some
overlapping between the exercise of legislative, executive and judicial authority, which in
turn blurs the separation of powers between these organs to a certain extent. However the
South African Constitutional Court has ruled on numerous occasions, most notably in
Glenister v President of the Republic of South Africa, that since a system of checks and
balances necessarily presupposes intrusions of one branch of government on the terrain of
another, there can never be a complete separation of powers. 2 It is against this backdrop that
control mechanisms by the legislature over executive organs as well as judicial scrutiny of
motions of no confidence should be understood in the South African context.

A motion of no confidence is an important feature of the parliamentary procedures of the

South African parliament. Section 102 the Constitution of the Republic of South Africa of
1996 makes provision for motions of no confidence:
“(1) If the National assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the Cabinet excluding the President, the President must
reconstitute the Cabinet.
(2) If the National assembly, by a vote supported by a majority of its members, passes a
motion of no confidence in the President, the President and the other members of the
Cabinet and any Deputy Ministers must resign.”

When a motion of no confidence has been adopted by the majority of parliament, the
members of the executive must resign immediately – this ensures that the no confidence
motion remains an imminent mechanism that keeps the government accountable to the
legislature and ultimately the electorate. Section 50(2)(b) and section 86(3) of the

2
2009 1 SA 287 (CC) paras 29-32; also see In re: Certification of the Constitution of the Republic of South
Africa 1996 1996 4 SA 744 (CC) paras 106-113.

3
Constitution also provide that if a new President could not be elected within thirty days after
the resignation of the President and the cabinet, the parliament must dissolve for a general
election. If a new President is elected within the thirty day period, he or she must appoint a
new cabinet from the members of parliament. It is nevertheless clear from section 102 that in
South African law a motion of no confidence not only acts as a check on the executive but is
also the only way that the legislature can remove an unpopular government before its term
expires.

In South African law, there has recently been renewed interest in the mechanism of motions
of no confidence following the Constitutional Court decision in Mazibuko v Sisulu. 3 The
constitutional minefield in the Mazibuko case was a particularly treacherous one for the court.
Not only did the court have to reconcile its duties as a check on the rules and procedures of
parliament with the doctrine of separation of powers, but it also had to consider the effect that
its decision would have on the control function of the legislature over the members of the
national executive.

Briefly the facts of the case were as follows. The leader of the official opposition in the
national assembly, Ms Mazibuko, gave notice of a motion of no confidence in the President
by tabling the motion in parliament. 4 However, the parliamentary committee tasked with the
scheduling of motions (i.e. the programme committee) failed to reach consensus on the
scheduling of the motion – with the result that the motion was not scheduled for debate in the
assembly. 5 Mazibuko brought an urgent application in the High Court for “final interdictory
relief” in the form of an order directing the speaker to take the steps necessary for the motion
to be scheduled for debate and a vote in the assembly. 6 Although the High Court conceded
the importance of the applicant’s right to move a motion of no confidence, the court
dismissed the application. 7 Mazibuko subsequently brought an application in the
Constitutional Court for leave to appeal directly against the judgment of the High Court, or in
the alternative, an application for direct access to the court for a declaratory order that the

3
2013 6 SA 249 (CC); also see De Vos and Freedman (eds) South African Constitutional Law in Context (2014)
145-146.
4
Mazibuko (n 3) par 7, 96.
5
Mazibuko (n 3) par 10.
6
Mazibuko (n 3) par 13.
7
Mazibuko v Sisulu 2013 4 SA 243 (WCC) 255; see Mazibuko (n 3) par 16-17

4
rules relating to the tabling of motions of no confidence are inconsistent with the
Constitution. 8

The Constitutional Court stated that the importance of motions of no confidence entailed that
such a motion “cannot be left to the whim of the majority or minority in the programme
committee or any other committee of the assembly”, that this would detract from the “vital
purpose of section 102(2)” and that scheduling of the motion should therefore be decided by
the assembly itself. 9 The court in Mazibuko therefore concluded that the rules where indeed
inconsistent with the Constitution, and therefore invalid, to the extent that neither the rules,
nor the actual practice followed by the programme committee, provided for effective
decision-making or for deadlock-breaking mechanisms with regard to the scheduling of
motions of no confidence. 10 The absence of such mechanisms therefore infringed the exercise
of the powers of members of the assembly in relation to the scheduling, debating and voting
on motions of no confidence. 11 Consequently the court ordered that its declaration of
invalidity be suspended for six months to allow the assembly to correct the lacuna in the
rules. 12 This approach is consistent with an earlier judgment of the court in Oriani-Ambrosini
v Sisulu, Speaker of the National Assembly where Mogoeng CJ, writing for the majority on
the validity of rules of the assembly that allegedly inhibited an individual member’s power to
initiate legislation, stated: “The validity of the rules depends on whether they recognise and
facilitate the exercise of the individual member’s powers …”. 13

With regard to the principle of separation of powers, the speaker contended that, because the
assembly was in the process of amending the rules regarding motions of no confidence, the
court need not make on order in this regard, since any determination by the court would
infringe the separation of powers “in light of the ongoing negotiations within the
assembly”. 14 The court, however, indicated that the speaker was directed to furnish the court
with a report on the progress made with the negotiations and the amendment of the rules
relating to motions of no confidence before the trial, and although two reports were furnished
before the commencement of the trial, it was clear from the reports that no consensus has

8
Mazibuko (n 3) par 5.
9
Mazibuko (n 3) par 57, 58.
10
Mazibuko (n 3) par 61-62.
11
Mazibuko (n 3) par 61-62.
12
Mazibuko (n 3) par 72.
13
2012 6 SA 588 (CC); see Mazibuko (n 3) par 66.
14
Mazibuko (n 3) par 67.

5
been reached at that time as to the possible content of any revised rules. 15 The court therefore
found that because of this lack of consensus it was unlikely that the lacuna in the rules will be
resolved if the court did not make a ruling in this regard. 16 Furthermore the court argued that
a declaration of invalidity is not discretionary – once the court has found that certain rules are
indeed unconstitutional it must be declared invalid. 17 The court therefore dismissed the
speaker’s contention that any ruling made by the court in this regard would infringe on the
separation of powers doctrine, since the court would not be imposing rules on the assembly or
interfering with the negotiation process within the assembly, but would rather only be making
an order requiring the assembly to correct the lacuna in its rules which does not effectively
vindicate a member’s entitlement to move a motion of no confidence. 18

How did the court therefore go about reconciling the principle of separation of powers with a
system of checks and balances? If the court in the Mazibuko case had, for example,
prescribed the form and contents of the rules which parliament had to adopt with regard to
motions of no confidence, the court would have descended into the legislative arena – which
it is not allowed to do. On the other hand, if the court simply stated that it is the privilege of
parliament to create its own rules, the problem would probably have persisted and this would
have undermined the control function of the legislature over members of the national
executive as prescribed by section 55(2)(a) of the Constitution. It is submitted that in this
case the Constitutional Court therefore neatly sidestepped the “constitutional minefield” and
maintained just the right balance between the separation of powers and the judicial scrutiny
of parliamentary rules, or in this case the lack thereof, as well as ensuring that the members
of the executive remain accountable to parliament.

In conclusion, as separation of powers is recognised as an important principle in South

African law, the courts should therefore refrain from descending into the legislative arena.
However, this does not mean that the internal rules and actions of the legislature cannot be
scrutinised by South African courts – if such rules or actions undermine the control function
of the legislature over members of the national executive the courts have no alternative but to
intervene. Such intervention in South African law is not however regarded as an unwelcome
intrusion or as an action that seriously undermines the separation of powers, but rather as the

15
Mazibuko (n 3) par 68.
16
Mazibuko (n 3) par 69-70.
17
Mazibuko (n 3) par 70.
18
Mazibuko (n 3) par 71.

6
duty of the courts as determined by the supreme Constitution. In South African law the
deciding factor, when determining the ideal balance between the principle of separation of
powers and the system of checks and balances, would therefore be to give effect to the
control functions and duties placed on state bodies by the supreme Constitution.

3 The position in the United Kingdom

The separation of powers in the United Kingdom has long been regarded as being “relative”
in nature, with a high degree of overlapping between the legislative, executive and judicial
authority. 19 However, with regard to the principle of separation of powers the court in R
(Anderson) v Secretary of State stated:
“Our constitution has never embraced a rigid doctrine of separation of powers. The
relationship between the legislature and executive is close. On the other hand, separation of
powers between the judiciary and the legislative and executive branches of government is a
strong principle of our system of government.” 20

Alder therefore argues that the doctrine of separation of powers has “limited but important
application in the unwritten UK constitution”. 21 Despite the weaker separation of powers
between the executive and the legislature, there seems to be a stronger separation between the
judiciary and the legislative and executive branches of government, especially since the
creation of the Supreme Court which replaced the Appellate Committee of the House of
Lords in 2009 in terms of the Constitutional Reform Act of 2005. 22 Although the British
system recognises the need for control mechanisms over the three branches of government,
the courts cannot scrutinise parliamentary proceedings or give orders to parliament. 23 In
addition, in terms of the doctrine of parliamentary sovereignty and the Human Rights Act of
1998, only a non-binding declaration of inconsistency with the European Convention of
Human Rights and Fundamental Freedoms can be made by a court, it cannot therefore set
aside an act of parliament. 24 Courts also do not have the authority to scrutinise parliamentary
rules or procedures, however, the courts may “decide whether statutory processes have been

19
Rautenbach Rautenbach-Malherbe Constitutional Law (2012) 59-60.
20
[2002] 4 All ER 1089 par 39.
21
Alder Constitutional and Administrative Law (2011) 142; also see Masterman’s description of the UK’s
separation of powers: “Separation of powers in the contemporary constitution is at the very least, therefore, a
dynamic, multidimensional, idea that is reflected in the status of, and interactions between, the institutions of
government within the constitution and in the rules and principles by which those relationships are managed”
(Masterman (n 1) 31).
22
Alder (n 21) 142-143, 148; also see Masterman (n 1) 1-5.
23
Alder (n 21) 156.
24
Alder (n 21) 155.

7
complied with even where they relate to parliamentary processes”. 25 This is important for
purposes of this discussion, especially given the new developments surrounding the statutory
recognition of motions of no confidence.

The motion of no confidence in British law was, until recently, firmly rooted in convention.
Cabinet government during the eighteenth and nineteenth centuries was said to rely on three
principles, namely that the cabinet should be composed of ministers who enjoy political
unanimity; that the ministers should subordinate themselves to the prime minister; and that
they should be collectively responsible to parliament. 26 The last principle is particularly
important for purposes of this discussion. Once royal interference in parliament was finally
excluded in the latter half of the eighteenth century, the way was open for collective
responsibility of ministers to come into its own and seems to have become recognised in both
constitutional principle and practice by 1801. 27 Prosser and Sharp therefore conclude with
regard to the collective responsibility of ministers:
“It will be seen that the convention that the whole Cabinet should retire when defeated in
Parliament has, in effect, taken the place of the older and clumsier method of impeachment.
No longer is it necessary to prosecute the authors of an unpopular policy; they tacitly assent,
upon entering office, to surrender their power on what amounts to a resolution of ‘No
Confidence’ if their measures are defeated in Parliament.” 28

The ratio behind this development is obvious: in the British parliamentary system, the
executive can govern only in accordance with the measures approved by parliament. Should
parliament lose confidence in the executive and reject the measures proposed by the
executive, the executive cannot continue to govern, and has no choice but to vacate office. In
later years, governments losing majority support in parliament claimed the prerogative not to
resign, but chose to advise the monarch to call an early election in order for the electorate to
speak the final word. This seems to have become the practice during the twentieth century.
The most recent examples of instances where the government suffered defeats on a no

25
Alder (n 21) 145; also see R (Jackson) v A-G [2005] 4 All ER 1253.
26
Prosser and Sharp A Short Constitutional History of England (1938) 189.
27
Prosser and Sharp (n 26) 193.
28
Prosser and Sharp (n 26) 193.

8
confidence motion were on 8 October 1924 and 28 March 1979. In both instances the
government sought the dissolution of parliament for an election rather than resignation. 29

Since the enactment of the Fixed-Term Parliaments Act of 2011, however, motions of no
confidence in British law are no longer regulated by convention. The act gives effect to the
commitment of the coalition government to establish five-year fixed term parliaments and to
determine the date for all elections at the first Thursday of May every five years. 30 The
reasoning behind this measure is said to be that the Prime Minister will no longer be allowed
to “play cat and mouse games” with the electorate and that the measure will also lead to a
“more democratic, constitutional, accountable and fair system”. 31 Since section 1 of the act
provides for general elections at five yearly intervals, it therefore limits the prime minister’s
authority to seek the dissolution of parliament for an early election. The act sets out two
exceptions to this rule: first, if a motion for an early election is adopted by at least a two-
thirds majority in the house of commons; or second, when a motion of no confidence has
been passed and no alternative government has been confirmed by the house of commons
within fourteen days by means of a confidence motion. 32 It is therefore no longer possible for
the government to simply choose between immediate resignation and dissolution of
parliament for an election after suffering a successful motion of no confidence. The act
therefore more or less abolishes the traditional approach to motions of no confidence and
adopts instead the notion of the so-called constructive motion of no confidence one finds in
Germany.

Fairclough argues that the constitutional effect of the act could be both positive and negative.
On the one hand these measures ensure that election timing is now much more transparent:
“the electorate knows when the next election is supposed to be, and, perhaps more
importantly, so does the opposition and the other political parties”. 33 On the other hand
Fairclough argues that, although these measures ensure a greater degree of transparency, it

29
Kelly and Powell Confidence Motions, House of Commons Library, Standard Note SN/PC/2873
http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-02873.pdf (03-12-2013) par 2.1 and
2.4; Alder (n 21) 331-332.
30
Gay and Maer Fixed-Term Parliaments, House of Commons Library, Standard Note SN/PC/831
http://www.parliament.uk/documents/commons/lib/research/briefings/snpc-0831.pdf (13-02-2014); also see
Samuels “End of term?” 2011 New Law Journal 1439-1440.
31
Samuels (n 30) 1439.
32
Section 2 of the Act; Kelly and Powell (n 29) par 1.
33
Fairclough “The Fixed-Term Parliaments Act 2011: Any constitutional significance?” (2011)
www.academia.edu 4. http://www.academia.edu/4210043/The_Fixed-
term_Parliaments_Act_2011_any_constitutional_significance (13-02-2014).

9
could also make the government less accountable since “the average length of a Parliament
since 1945 has been less than four years” and the electorate will now only be called on to
vote every five years – giving rise to governments with much longer terms of office than was
previously the norm. 34 A more important point, however, is that this act changes the
relationship between the legislature and the executive. If the prime minister’s power to
choose between dissolution of parliament for an election or immediate resignation after a
successful motion of no confidence is transferred to the legislature this could very well
strengthen democracy and the separation of powers, 35 but could also limit the effect of
motions of no confidence as a prominent parliamentary control mechanism over members of
the executive. Nevertheless, Young argues that democracy could only be further enhanced by
the codification of rules pertaining to motions of no confidence and that the requirement that
a new government must be approved with a vote of confidence can “give an extra layer of
democratic legitimacy when the leadership of a political party changes”. 36

At first glance it seems that the British system of parliamentary sovereignty excludes the
possibility of judicial scrutiny of motions of no confidence as a control mechanism of
parliament over members of the executive and therefore does not strengthen the state’s
system of checks and balances in this respect. It is however submitted that since courts may
scrutinise compliance with statutory requirements, even on matters related to parliamentary
processes, 37 it seems that this would now include motions of no confidence. Such scrutiny
would however only include the factual compliance with the statutory provisions of the act
and would not include scrutiny of the merits of the motion of no confidence or the
constitutionality of the parliamentary process regarding motions of no confidence. Therefore,
although the powers of the courts are still limited in respect of scrutiny of motions of no
confidence, it seems that it is not as limited as was the case in terms of the convention.
Furthermore it is submitted that, although the Fixed-Term Parliaments Act represents a major
departure from the original Westminster convention regarding motions of no confidence, it
could be argued that it at least strengthens the separation of powers between the legislature
and the national executive while still maintaining, and now also codifying, motions of no
confidence as a measure of control over the executive. The codification of a part of the

34
Fairclough (n 33) 5.
35
Young “Fixed-Term Parliaments and Neurath’s Ship” (2011) www.ukconstitutionallaw.org
(http://ukconstitutionallaw.org/tag/fixed-term-parliaments-act/ (13-02-2014).
36
Young (n 35) www.ukconstitutionallaw.org.
37
See R (Jackson) v A-G (n 25).

10
“living” British constitution is therefore arguably one of the most important consequences of
the act. 38

4 The position in the Federal Republic of Germany

In the Federal Republic of Germany the principle of separation of powers finds recognition in
article 20(2) of the German Constitution which clearly provides for the exercise of state
authority by different legislative, executive and judicial organs. Article 20(3) of the German
Constitution also creates a system of constitutional supremacy by providing that the
Constitution binds all branches of government. Kommers argues that the Federal
Constitutional Court also views the principle of separation of powers as a “system of
reciprocal controls”, and therefore as a system of checks and balances that keeps the branches
of government accountable. 39 The Federal Constitutional Court is also regarded as the highest
of the federal organs since it has the authority to resolve disputes between the other organs of
state or to determine their institutional rights and duties. 40 Such constitutional disputes
between the most important organs of state are referred to as Organstreit proceedings and are
specifically provided for by article 93(1) of the German Constitution. 41 Such proceedings
may be instituted by the president, the Bundestag and the Bundesrat, as well as individual
members of the legislature. 42 However, in Organstreit proceedings there is one proviso, the
Constitutional Court is only authorised to issue a non-binding declaratory order and cannot
therefore invalidate an executive action in such a case. 43 The reasoning behind this
requirement is possibly the sensitive political situation surrounding such disputes and the idea
that courts should not usually be called upon to descend into the political arena and resolve
political disputes. It would however be possible for the Constitutional Court to decide on the
constitutionality of parliamentary rules or procedures, 44 and therefore also rules relating to
motions of no confidence. Here the court would not be limited by the same proviso relating to
Organstreit proceedings since it would not necessarily amount to a dispute between organs of

38
Young (n 35) www.ukconstitutionallaw.org.
39
Kommers The Constitutional Jurisprudence of the Federal Republic of Germany (1997) 115; also see 7
BVerfGE 183, 188 (1957); 9 BVerfGE 268, 280 (1959); and 22 BVerfGE 106, 111 (1967).
40
Kommers (n 39) 115.
41
See Kommers (n 39) 12; see also Gröpl, Windthorst and Von Coelln Grundgesetz: Studienkommentar (2013)
637.
42
See Kommers (n 39) 12; see also Gröpl, Windthorst and Von Coelln (n 41) 639-640.
43
Kommers (n 39) 122.
44
See 80 BVerfGE 188 (1989) where an independent deputy challenged several parliamentary rules which
allegedly limited the rights of independent deputies to be appointed as members of parliamentary committees;
also see Kommers (n 39) 174-177.

11
state but rather the objective determination of constitutionality of the rules or procedures of
parliament.

As one of the checks on members of the executive a motion of no confidence may be moved
and approved by the German Bundestag, but the government is not obliged to step down
unless the motion of no confidence includes a motion of confidence in a new chancellor
(head of government). In a multi-party system characterised by coalition governments, this
makes perfect sense, because it avoids the possibility that the government loses majority
support without a new coalition enjoying majority support being formed. This also ensures
that the country is never without a chancellor in office to perform governmental tasks. 45 This
measure is provided for under article 67 of the German Constitution and is known as a
constructive vote of no confidence (konstruktives Misstrauensvotum). 46 In terms of article 68
of the German Constitution it is also possible for the chancellor to initiate a vote of
confidence himself. 47 It should also be noted that an election is not necessarily triggered by a
successful motion of no confidence as the German Constitution does not readily permit
elections outside the prescribed framework of article 39(1). 48 The only two exceptions to the
rule against elections held contrary to the prescribed framework are: when the chancellor has
initiated a motion of confidence which had subsequently failed and then requests the
president for the dissolution of parliament for a general election (article 68); or when the
Bundestag fails to elect a new chancellor after several ballots (article 63). 49 The German
construction of motions of no confidence therefore creates the possibility of the executive
deliberately “engineering” a failed motion of confidence in order to obtain the dissolution of
parliament for an early election.

The engineering of an early election through a failed motion of confidence has happened
three times since the adoption of the current German Constitution, but only on two of these
occasions was the Constitutional Court called on to review the president’s decision to

45
Michalowski and Woods German Constitutional Law: The Protection of Civil Liberties (1999) 14.
46
See Gröpl Staatsrecht I: Staatsgrundlagen, Staatsorganisation, Verfassungsprozess mit Einführung in das
juristische Lernen (2012) 319-320; Gröpl, Windthorst and Von Coelln (n 41) 508-510; Jarass and Pieroth
Grundgesetz für die Bundesrepublik Deutschland: Kommentar (2009) 762-763; Hömig (ed) Grundgesetz für die
Bundesrepublik Deutschland (2010) 419-421; also see Dreier (ed) Grundgesetz: Kommentar (2006) 1505-1515.
47
See Kommers (n 39) 117; Gröpl, Windthorst and Von Coelln (n 41) 510-512; Gröpl (n 46) 321-323; Jarass
and Pieroth (n 46) 763-764; Hömig (n 46) 421-423; Dreier (n 46) 1516-1532.
48
See Michalowski and Woods (n 45) 14.
49
See Kommers (n 39) 117; Michalowski and Woods (n 45) 14; see also Gröpel (n 46) 319-320.

12
dissolve parliament. 50 In the first case the chancellor, Helmut Kohl, deliberately engineered a
failed motion of confidence and subsequently requested the president to dissolve parliament
for an early election – which request was granted. Some of the aggrieved members within the
Bundestag however challenged the validity of the decision granting the dissolution and
approached the Constitutional Court according to the Organstreit procedure. 51 Kommers
summarises the court’s decision as follows: “[the court] upheld the dissolution order,
contending, essentially, that the president had reasonably exercised his discretion in light of
the complex political circumstances”. 52 There is of course no doubt that this is a highly
complex political situation, but one cannot help but feel that the chancellor did in fact abuse
the procedure in article 68 for his own ends. In the second case chancellor, Gerhard Schröder,
also intentionally “lost” a vote of confidence in 2005 and requested the president for the
dissolution of parliament – as in the previous case, the request was also granted. A number of
smaller parties, however, protested against the president’s decision and approached the
Constitutional Court for a decision on the matter. 53 In this case the court declared that the
principle of separation of powers as it applies to the dissolution of parliament in terms of
article 68 can only be sensibly maintained if the court respects the assessment of the
prevailing political situation by the other state actors, namely the chancellor and the
president. 54 The court also found that it is nonetheless authorised to examine whether the
limits of the political discretion of the other state actors have been adhered to. 55 Again, as in
the previous case, the majority of the court decided that the chancellor’s and the president’s
political discretion was sensibly exercised and therefore decided in favour of the dissolution
of parliament.

In a dissenting opinion Justice Jentsch however indicated that the reasoning behind the
provision in article 68 of the Constitution is to allow a chancellor to determine his or her
support among the members of parliament and if he or she has indeed lost the support of the
majority of parliament to let the electorate remedy this political instability by means of a

50
The following are the examples of occasions where chancellors deliberately engineered failed motions of
confidence in order to trigger early elections: Willy Brandt, 22 September 1972; Helmut Kohl, 17 December
1982; Gerhard Schröder, 1 July 2005 – the last two instances were reviewed by the Constitutional Court, see 62
BVerfGE 1 (1984) and 114 BVerfGE 121 (2006) (available at http://www.beverfg.de/entscheidungen/
es20050825_2bve000405.html); see Kommers (n 39) 118; Michalowski and Woods (n 45) 14-15.
51
See 62 BVerfGE 1 (1984).
52
Kommers (n 39) 119.
53
See Dreier (n 46) 1524-1525; also see Mahrenholz “Die Vertrauensfrage des Kanzlers nach Art. 68 GG kann
entfallen” 2005 Zeitschrift für Rechtspolitik 245-246.
54
114 BVerfGE 121 (2006) par 153.
55
114 BVerfGE 121 (2006) par 155.

13
general election. 56 Furthermore Justice Jentsch was not at all convinced of the chancellor’s
loss of parliamentary support in this case and further indicated that to allow parliamentary
dissolutions in cases which did not truly amount to a loss of parliamentary support would
pave the way to a parliamentary right of self-dissolution which is foreign to the German
Constitution and the political system that it endeavoured to create and could lead to abuse and
manipulation. 57 It is however submitted that, while Justice Jentsch is correct when indicating
that the engineering of failed motions of confidence in order to obtain a dissolution of
parliament could lead to abuse and manipulation, it does not amount to a parliamentary right
of self-dissolution since it is the president who ultimately decides whether the dissolution
should be granted and not the parliament. Apel, Körber and Wihl therefore correctly indicate
that the purpose of the article 68 of the German Constitution is not to prevent the parliament
from self-dissolution but rather to prevent the arbitrary dissolution of parliament by the
president. 58 Justice Jentsch however also correctly indicates that the “instrumentalisation” of
motions of confidence in this way weakens the position of parliament, because when the
chancellor has complied with the requirement of loss of majority support (regardless of the
way that the chancellor obtained such a loss) the chancellor may request the president for a
dissolution of parliament without recourse to parliament or any other state organ for that
matter. 59

In the context of the principle of separation of powers and the system of checks and balances,
it is submitted that the constructive motion of no confidence measure prescribed by the
German Constitution does somewhat lessen the impact of motions of no confidence as an
imminent check on the executive, although this measure nevertheless strengthens the
separation of powers between the executive and the legislature by protecting the executive
against unnecessary or frivolous motions. Furthermore, due to the provision in article 68 of
the German Constitution, dissolutions brought about by failed motions of confidence that
have been engineered by the chancellor also have an effect on the separation of powers and
the system of checks and balances in the German system. The president’s decision to grant
the dissolution of parliament at the request of the chancellor is reviewable by the Federal
Constitutional Court – giving rise to separation of power issues. However, in such a case the
56
114 BVerfGE 121 (2006) par 196.
57
114 BVerfGE 121 (2006) par 193.
58
Apel, Körber and Wihl “The decision of the German Federal Constitutional Court of 25 August 2005 –
Dissolution of the National Parliament” German Law Journal (2005) 1243, 1253, available at
http://www.germanlawjournal.com/index.php?pageID=11&artID=629 (09-03-2014).
59
114 BVerfGE 121 (2006) par 200-201.

14
special Organstreit procedure must be followed by the aggrieved parties, which essentially
means that the court cannot set aside the decision of the president but can only make a non-
binding declaratory order. 60 Although this does not strengthen the control function of the
judicial authority over the executive, it does however represent a compromise between, on
the one hand, allowing judicial review at all, and on the other hand, allowing judicial
intervention within the realm of the executive. Therefore this measure does not offend the
separation of powers, but nor does it necessarily strengthen the system of checks and
balances. Given the complicated political climate surrounding the review of the president’s
decision to grant the dissolution of parliament, it is not surprising that such a compromise has
been struck. However, given the “trend” created by these two dissolution cases it is uncertain
whether there would ever be any circumstances in which the court would arrive at the
opposite conclusion, and it is even more uncertain what the president’s reaction would be
towards such a decision since he or she is not bound by the court’s judgment in this regard.

On the other hand, although no such case relating to motions of no confidence has been
brought before the Constitutional Court as yet, it would also be possible for the court to
review the constitutionality of rules or procedures of parliament 61 – for instance, those
pertaining to motions of no confidence. In such a case the Constitutional Court would not be
limited to the issuing of a non-binding declaratory order as would be the case in Organstreit
proceedings, but would rather be able to make a binding order as to the validity of the rules or
procedures. The authority of the courts to scrutinise the internal rules and procedures of
parliament in this way may be seen as an infringement of the separation of powers between
the legislature and the judiciary, but this infringement is countered by simultaneously
strengthening the state’s system of checks and balances and upholding the state’s supreme
Constitution as the ultimate authority in the state.

5 Concluding remarks on different approaches to motions of no confidence and the

separation of powers
The three jurisdictions that have been discussed in this paper represent three very distinctive
approaches to the reconciliation of the principle of separation of powers with a system of
checks and balances in the context of motions of no confidence. Each of these states also has
to reconcile its approach with its written (or even unwritten) constitution, historical

60
Kommers (n 39) 121-122; Michalowski and Woods (n 45) 14.
61
See 80 BVerfGE 188 (1989).

15
background and other existing legal rules. However, none of these approaches are without
their own unique challenges, nor is there one magical approach that would work in any given
constitutional system. One could however compare the relative power of each of the three
branches of government in relation to the other branches in each constitutional system and
draw general conclusions from the degree of overlapping that is regarded as permissible in
each system. This could be done in order to determine if an ideal relationship between
separation of powers and a system of checks and balances could be formulated in the context
of motions of no confidence.

It would seem that South African courts not only have the authority to scrutinise
parliamentary rules and procedures relating to motions of no confidence but they also have
the authority to both invalidate such rules and procedures if they are found to be contrary to
the supreme Constitution or to order parliament to provide such rules where they seem to be
lacking – as was decided in the Mazibuko case. This could be seen as a very effective check
on the legislature (and indirectly also the executive) and therefore plays an important role in
enhancing South Africa’s system of checks and balances. However, there is also no doubt
that this blurs the separation of powers between the judiciary and the legislature, but this
overlap is by no means limitless. What the South African courts cannot do is to question the
merits of a motion of no confidence, or to expressly prescribe the rules and procedures that
the legislature should adopt in order to give effect to the provisions of the Constitution in this
regard. This authority vests solely within the realm of the legislature and it would therefore
be contrary to the separation of powers if the courts where to exercise this authority.
Furthermore, the South African construction of motions of no confidence avoids the pitfalls
of a constructive motion of no confidence formulation, and makes sure that these motions
remain an imminent check on the executive. Although this type of control does tend to
weaken the separation of powers, its role in keeping the executive accountable to parliament
is of the utmost importance. However, in the South African context, the imminent nature of
the motion of no confidence could result in frivolous and vexatious motions being tabled in
parliament without any real expectation of success. 62

62
The National Assembly has however proposed a draft rule to limit frivolous motions which provides that the
speaker has a discretion to schedule another motion of no confidence in the same session after having
considered whether during the same session a motion was brought on the same or materially similar grounds and
was rejected by the assembly (footnote 60 Mazibuko (n 3)).

16
In contrast the British courts, although enjoying more separation from the legislative and
executive branches than ever before, do not have the authority to invalidate legislation,
parliamentary rules or procedures relating to motions of no confidence, or scrutinise the
merits of motions of no confidence. The only possibility open to British courts is to review
the legislature’s objective compliance with the statutory requirements that have been laid
down by the Fixed-Term Parliaments Act. Although this strengthens the separation of powers
between the judiciary and the legislature this does not enhance the system of checks and
balances. Another problem with this formalistic approach in the context of motions of no
confidence is that it creates the possibility for the prime minister to engineer a failed motion
of confidence in his or her own government in order to obtain an early dissolution of
parliament. In this way the motion cannot be set aside by the courts for non-compliance with
the statutory requirements because the statutory requirements have been met (regardless of
the method that the head of government used to meet those requirements). 63 This problem is
also illustrated clearly in the German system where engineered failed motions of confidence
are also a direct result of using the constructive motion of no confidence formulation. The
new constructive motion of no confidence formulation introduced by the Fixed-Term
Parliaments Act has also lessened the imminent nature of the motion as a check on the
executive, and therefore also lessens its impact in the system of checks and balances.

In the Federal Republic of Germany the Constitutional Court, similar to the South African
Constitutional Court, is authorised to scrutinise and pronounce on the constitutional validity
of parliamentary rules and procedures of motions of no confidence, but not on the merits of
the motion. In cases where individual members of the legislature are however dissatisfied
with a chancellor’s misuse of confidence motions to request an early election from the
president, this would however entail the initiation of Organstreit proceedings in the
Constitutional Court – which only entitles the court to scrutinise whether the chancellor and
the president have exercised their discretion sensibly. According to this procedure the court is
therefore only given the authority to make a non-binding declaratory order in this regard. In
the two cases where the court had the opportunity to pronounce on such engineered failed
motions of confidence, the court decided in favour of the dissolution of parliament in both
instances – strengthening the separation of powers but severely hampering the judiciary as a
check on the members of the executive. Again, as in the case of the British constructive of

63
Gay and Maer (n 30) 11.

17
motion of no confidence, the German motion of no confidence lessens the imminent nature of
the motion to act as a check on the executive (weakening the system of checks and balances),
but on the other hand also limits the use of such motions in a frivolous or vexatious manner –
thereby strengthening the separation of powers.

What could one therefore deduce from these states about the ideal relationship between
separation of powers and a system of checks and balances in the context of motions of no
confidence? This is however not the question we should be asking. The real question is this:
what are the ultimate purposes of motions of no confidence in parliamentary systems and
how can those purposes best be achieved by means of the separation of powers and a system
of checks and balances? What is therefore important is to return to the original purposes of
motions of no confidence – which is, firstly, that the legislature may use these motions as its
ultimate check of the executive and, secondly, that these motions give recognition to the
principle that the executive needs the support of the majority of the legislature to remain in
power.

A state’s separation of power and its system of checks and balances should therefore support
these purposes, taking into account the state’s constitutional framework of either
parliamentary sovereignty or constitutional supremacy. The underlying principles of these
constitutional systems should however not be allowed to undermine the basic purposes of
motions of no confidence. Any constitutional state, whether following a system of
constitutional supremacy or parliamentary sovereignty, should make provision for
parliamentary rules and procedures that enable members of the legislature to have these
motions moved, debated and voted on in parliament. Likewise states should provide for
judicial review of such rules and procedures (or lack thereof), whether the courts are
authorised to make binding determinations or not. Parliamentary rules and procedures or
legislation should also be created to guard against frivolous or vexatious motions and against
the manipulation of motions of no confidence to achieve results contrary to the purposes of
these motions – the dissolution of parliament and obtaining early elections, for example,
through the engineering of failed motions of confidence. Such rules, procedures or legislation
and the legislature’s and the executive’s compliance with such rules or legislation should also
be subject to judicial review (whether binding or not) and special attention should be given
where the constructive motion of no confidence formulation is used so as to give effect to the
substantive content of such motions rather than the formalistic compliance with certain

18
predetermined requirements without taking into account how those requirements were met.
Courts should however neither be allowed to scrutinise the merits of motions of no
confidence nor to prescribe the rules or legislation that the legislature needs to adopt to
facilitate such motions. It is therefore submitted that it is through such a framework that the
purposes of motions of no confidence may best be achieved – if every overlap between the
branches of government is countered by a review of, or predetermined limits on, the nature
and extent of such intrusions on the separation of powers. It is therefore important that every
parliamentary system determines how its unique separation of powers and system of checks
and balances could best achieve the purposes of motions of no confidence. It is only by doing
this that a state could give motions of no confidence its rightful recognition as one of the
most important parliamentary instruments which acts as the legislature’s ultimate check and
checkmate over the executive.

19