Road to Early Polls Fraught With Obstacles

Gerhard Schröder set in motion a complex constitutional mechanism when he applied for a vote of confidence in the Bundestag. The chancellor hopes that parliament will reject him, allowing for new elections to take place in the fall. DW-WORLD talked to Christian Pestalozza, a professor of German constitutional law at Berlin's Free University, about the complex and circuitous route Schröder has taken to get his way.

DW-WORLD: For weeks Germany has been arguing about whether Schröder is abusing the concept of a vote of confidence to force new elections. Green party parliamentarian Werner Schulz, for example, has accused Schröder of wanting to bend Germany's constitution as it suits him. What do you think?

Christian Pestalozza: The vote of confidence is regulated in article 68 of the constitution. It refers to an application from the federal chancellor to the Bundestag (the lower house of parliament) to pronounce their confidence in him. The prerequisite is that there's a disruption or dispute between the chancellor and the parliamentary majority. The vote of confidence is meant to create clarity for the chancellor who says: "Now I want to know for sure whether we want to continue or not."

Actually the constitution foresees an application aimed at a positive vote of confidence. The assumption is that the chancellor hopes he will indeed be accorded parliament's confidence. But the constitution doesn't forbid striving for clarification in a negative way. It wouldn't be an abuse.

When would it be an abuse?

One can speak of abuse if the chancellor and the majority of parliament try to establish a lack of confidence although they know for sure that they could continue to work together. If they pronounce a lack of confidence aiming only to cause new elections, it would not be in the spirit of article 68. That would be manipulation.

Do you think there is a genuine lack of confidence?

Where? I can't see it. Criticism has come repeatedly from the parliamentary groups of the governing coalition, but that's not enough. The majority in the Bundestag -- which also requires several members from the government coalition -- must say we cannot work with this chancellor anymore. I haven't seen this situation documented anywhere. It must be verifiable. I only see the usual conflicts. If nothing happens, I can't see how they can use article 68.

Assuming Schröder is successful with his vote of no confidence, what will happen?

The chancellor must then ask the president to dissolve the Bundestag. He has three weeks to decide whether to dissolve it or not. The president must first verify: Is it a serious situation of lack of confidence? Is there really a disruption and is the chancellor's work hamstrung?

The constitutional court has said that in resolving this legal question the president should take the chancellor's assessment as the basis for his decision. If the president goes along with the chancellor's assessment, the question arises: Does he order parliament to be dissolved? Here the president has some discretionary scope. Even if he believes the preconditions of article 68 exist, he isn't obliged to dissolve parliament. He can also say, "You must continue. You (parliament) can elect a new chancellor with the (existing) majority."

Read further to find out why Schröder doesn't just resign.

Many parliamentarians have announced they will appeal to the Constitutional Court because they consider Schröder's actions unconstitutional. Can they win?

These parliamentarians would only be able to start legal action after the president dissolved the Bundestag. In its judgment, the court would certainly refer to its 1983 decision. (Editor's note: Shortly after his election as chancellor by parliament, Helmut Kohl "used" the vote of confidence in January 1983 to have a new Bundestag elected.) It was a similar situation. Then the court drafted guidelines to article 68 and made clear that -- even if everyone wants them -- article 68 is not a suitable route to new elections. The disruption between the parliamentary majority and the chancellor is necessary. If it can't be verified -- and the result of the vote isn't proof since it can be faked -- the Constitutional Court will determine that (the vote of no confidence) was unconstitutional.

How can the rift be verified?

In 1983, the court stuck to things that had been said and written in public. Besides that the president held talks with the party and parliamentary group leaders. Based on the publicized material and these talks, the court gained the impression that, yes, it can't continue.

How does the situation today differ from the situation in 1983?

Then, the situation had already been manipulated and, I think, should not have been allowed to reach dissolution of parliament. The Constitutional Court had set strict guidelines but didn't adhere to them. Then we at least had documented statements from the FDP (the governing coalition partner) that said: "We only want to cooperate with the chancellor, who attained office through a vote of no confidence, for a limited amount of time." The court took that seriously and classified it as a crisis situation. But today the situation is not at all comparable.

What is your view of some ministers' intentions to possibly abstain in the July 1 vote of confidence?

If the vote of no confidence comes through only because the ministers abstain, the supposition of manipulation stands to reason. Of all people the most loyal of the loyal fail, abstain from voting and thus a majority against the chancellor is achieved. That's not a disruption. I can only warn against such a step because it would document that the whole thing was a fake.

Shouldn't Schröder just resign?

I understand why Schröder hasn't chosen the resignation route. Schröder is saying that he'd like to continue but he's unsure as to whether the voters support him. But he cannot ask the voters whether they still want him by resigning. For, resignation doesn't lead directly to new elections. Only if the Bundestag repeatedly fails to elect a new chancellor does the dissolution of parliament become an option. But it's very vague and a complicated and protracted route. If he were to resign, it would mean he gave up.

What do you think would be the best way to bring about fresh elections?

One could initiate the Bundestag's right to self-dissolution. That's an entirely unsuspicious instrument. It envisages that the Bundestag decides on its dissolution with a qualified majority. But strangely there are reservations about employing it. I don't know who's afraid of what.

The former president of the Constitutional Court, Ernst Benda, has criticized the attempt to bring on new elections using the vote of confidence. He says it gives the impression that politicians see the constitution only as a "cumbersome obstacle." What do you think?

I have nothing to add. It doesn't only give that impression; the impression has been made. All parties are now preparing their election campaigns. The opposition's reaction to the chancellor's announcement to bring about new elections was hectic. Instantly, they designated a candidate for chancellor. I think it's ridiculous. This knee-jerk start of the election campaign shows how little the constitution is taken seriously. If the Bundestag isn't dissolved in the end, it will be an incredible disgrace.

Steffen Leidel interviewed Christian Pestalozza (ncy)