Can the vice president, who completes the term of the incumbent president, subsequently be elected for two full presidential terms? This is one of the most commented constitutional law issues since Iliana Yotova assumed the presidential functions. Lawyer Guncho Gunchev spoke to FAKTI on the topic, making a detailed analysis of the provisions of the Constitution, examining the practice of the Constitutional Court and explaining why, in his opinion, completing another's term should not automatically be considered one's own presidential term.
– Lawyer Ganchev, if the vice president completes the term of the incumbent president, is this considered his own presidential term and does it deprive him of the opportunity to subsequently be elected head of state twice more?
- This question has become particularly relevant after Iliana Yotova assumed the presidential functions before the expiration of Rumen Radev's term and declared her intention to run for president. Although at first glance the answer seems obvious, a careful reading of the Constitution shows that the question is not so clear-cut. The Basic Law does not contain an explicit provision as to whether the completion of another's presidential term should be considered his own presidential term in the sense of the restrictions on re-election. It is precisely for this reason that the interpretation of the constitutional texts acquires decisive importance.
– What does the Constitution say on this issue?
– The Constitution speaks of “election“, not of “occupation of office“. The main provision is Art. 95, para. 1 of the Constitution: “The President and the Vice President may be re-elected to the same office for only one more term.“
The legislator uses the terms “elected“ and “re-elected“. It does not use terms such as: “held the office“, “executed the functions of president“, “was president“.
This is not a random linguistic construction. In constitutional law, every word has meaning. Re-election can only occur if there has been an election for the same office before. It is here that the main argument in support of the thesis under consideration is found.
– Why is this important in the case of Iliana Yotova?
– Iliana Yotova has never been elected president. To date, Iliana Yotova has been elected vice president twice. She has never run as a presidential candidate. She has never won a presidential election. Therefore, she has never acquired the presidency through direct election by Bulgarian citizens. This is the essential constitutional distinction.
– How does the Constitution regulate the replacement of the president by the vice president?
– The Constitution clearly distinguishes election from inauguration. Art. 97, para. 3 of the Constitution regulates a completely different hypothesis: “In the event of early termination of the powers of the president, the vice president shall assume the office of president until the end of the term.“
It is striking that the Constitution uses completely different terminology. It does not say: “is elected president“, “is considered elected“, “begins his own term“. On the contrary. The Constitution only uses the expression: “takes office as president until the end of the term“.
Therefore, the legislator clearly distinguishes between two different ways of occupying the presidential post: through direct election by the people and through constitutional replacement. These two grounds cannot automatically be equated. He does not begin a new term, but completes an already begun one.
– What is the strongest argument in support of this thesis?
– The strongest argument is contained in Art. 97 itself. The vice president does not begin his own five-year presidential term. He does not initiate a new constitutional cycle. He only completes the term of the elected president that has already begun. The term remains the same. No new elections are held. No new democratic legitimation arises. No new five-year term begins. Therefore, it is difficult to assume that the completion of the remainder of a foreign mandate constitutes a new independent presidential mandate.
– What does the presidential mandate mean according to the Constitution?
– The presidential mandate arises through the popular vote. The President of the Republic of Bulgaria draws his legitimacy solely from the direct election of the citizens. It is the election that creates the constitutional mandate. The assumption of office under Art. 97 is a constitutional mechanism for ensuring the continuity of state power, but does not create a new mandate arising from the will of the voters. Therefore, the completion of a foreign mandate cannot automatically be equated with a presidential mandate acquired through election.
– How should the restrictions on the right to stand for election be interpreted?
– The restrictions on the right to stand for election are strictly interpreted. There is also another important constitutional argument. The restrictions on the right to stand for election cannot be derived by analogy or through an expansive interpretation. They must be clearly, precisely and unambiguously provided for in the Constitution.
If the constitutional legislator had wanted the completion of another person's term of office to also be considered a presidential term, he could easily have provided for this.
For example, through the text: “A person who has held the office of president cannot be elected more than twice.“ However, there is no such provision. The Constitution speaks only of election and re-election. Therefore, a limitation that is not explicitly introduced cannot be created by interpretation.
– What powers does the President have when he runs for a new term?
– The President does not lose his powers when he runs. The practice of the Constitutional Court also provides important guidelines. By Decision No. 2 of 13 December 1991 in constitutional case No. 24/1991, the Constitutional Court accepted that the powers of the President are not terminated when he runs for election. The President continues to perform all his constitutional functions until the end of his term, unless one of the grounds for early termination of powers expressly provided for in the Constitution occurs. This decision confirms one of the fundamental principles of constitutional law - the continuity of state power. The Constitution does not allow the head of state to fall into temporary institutional impossibility solely because he participates in elections.
Therefore, if the incumbent president runs for a new term, he: does not vacate the office, does not appoint an interim president, continues to exercise all presidential powers.
It should be emphasized that Decision No. 2/1991 does not directly address the issue of term of office. However, it clearly distinguishes the exercise of presidential functions from the emergence and termination of the presidential term, which indirectly supports the distinction between completing another's term and winning one's own term through election.
– Do the president and vice president have the same constitutional status?
– The president and vice president are different constitutional offices. An additional argument is that the Constitution considers the president and vice president as two independent constitutional offices. Although they are elected in a common candidate pair, citizens elect two different individuals for two different functions. The election for vice president does not automatically become an election for president. This is why the Constitution uses different concepts for the two positions.
– What is the logical constitutional result?
– The logical constitutional result is: If the literal, systematic and functional interpretation of the Constitution is adopted, the legal sequence looks like this: Iliana Yotova was elected only as vice president, subsequently she took office as president only to complete someone else's mandate, this period does not constitute a presidential mandate acquired through direct election, if she wins the presidential elections, this will be her first presidential mandate arising from the popular vote; the Constitution allows for one re-election to the same position, therefore, after the expiration of this mandate, she could run once more for a second full presidential mandate.
– But is there also an opposing thesis that every tenure of the presidency should be considered a presidential term?
– Yes. It is possible to maintain the opinion that every tenure of the presidency should be considered a presidential term, regardless of the order in which it occurred. However, this thesis encounters a serious difficulty. It introduces a limitation that the Constitution does not contain. The Basic Law speaks of election and re-election, and not of any actual exercise of presidential functions. Therefore, such a limitation would be the result of an expansive interpretation of the Constitution, which is inadmissible when it comes to limiting the passive right to vote.
– And if we have to summarize, what is the conclusion?
– The Constitution does not provide an explicit answer to the case under consideration, and the Constitutional Court has not yet ruled specifically on this issue. However, the literal, systematic and functional interpretation of Art. 95 and Art. 97 of the Constitution, combined with the principle of strict interpretation of the limitations of the passive right to vote and with the practice of the Constitutional Court on the continuity of the presidential institution (Decision No. 2 of December 13, 1991 under Case No. 24/1991), provides serious legal grounds to assume that the completion of another person's presidential mandate does not constitute one's own presidential mandate acquired through election.
With this understanding, the possible victory of Iliana Yotova in the upcoming presidential elections would represent her first independent presidential mandate, won through direct election of the citizens. The Constitution allows for one re-election to the same position, which is why, under this interpretation, she could subsequently run for another full presidential term. The final answer to this question could only be given by the Constitutional Court in the event of a constitutional dispute. Until such a ruling, however, the text of the Constitution provides stronger arguments in favor of the conclusion that completing another person's term is not equated with one's own presidential term won through direct popular election.