The changed constitutional status of the caretaker government in the part of the appointment procedure, which remained in force after the Constitutional Court failed to gather the required majority to declare it invalid, is now visible to the naked eye the problems that are embedded in the clumsy constitutional amendment of art. 99, para. 5.
Problems that we repeatedly warned about, but self-forgetful party self-made people, driven by narrow party and lobbyist interests, lightly ignored. These problems are both constitutional and purely political in nature. The first of these is that an open-ended constitutional procedure was introduced. Any good procedure related to the constitution of a higher state body must provide for a clear algorithm for achieving the intended result. In this case, there is no such algorithm, because the constitutional amendment does not provide for what happens if none of the officials who are exhaustively and restrictively listed in the constitutional provision of Art. 99, para. 5, sentence two, did not accept the appointment as acting Prime Minister. This delusion is loaded with the potential to block the very institution of the caretaker government and make it impossible to form it.
If we are in the hypothesis of a regular government in resignation and the need to appoint an interim cabinet and schedule early parliamentary elections, then what happens if the president finds himself in a de facto inability to appoint an interim cabinet due to the lack of an interim prime minister? By way of interpretation and taking into account the principle of continuity of government, it should be assumed that the regular government in resignation will have to organize the elections. But such a situation radically changes the constitutional intention to organize an early vote by a government that is relatively neutral to the parties.
Another problem is personal. Electing a prime minister does not mean electing an official, nor a narrow specialist, and even less – a person without political experience. It is one of the most political posts in the constitutional system. But now for him, in his official version, mostly people who are detached from politics and have sectoral management competence are admissible. The exception is the Speaker of the National Assembly, but this exception in turn is loaded with other risks – from excessive partisanship and from creating political tension instead of calming the situation.
Along with that, in the legal opinion that I presented in the case against the constitutional changes before the Constitutional Court, I also highlighted a number of arguments for the unconstitutionality of the newly adopted version of Art. 99, para. 5. They should be recalled, with a view to a possible re-application to the Constitutional Court, insofar as it can be considered that using the term “rejects“ and not “rejects“ in the operative part of the decision under the Code of Criminal Procedure No. 1 of 2024, the SC has not definitively barred the way for reconsideration. The doctrinal understanding is that in parliamentary government, the official government with a non-parliamentary source of its powers aims to ensure the continuity of the state government and stabilize the political process in the conditions of a parliamentary crisis, which led to the inability to form a parliamentary majority and broadcast a Council of Ministers from The National Assembly.
This, of course, does not at all mean that the holder of the executive power is moved - from the caretaker government to the President of the Republic, who appoints him. The Constitution provides for neither direct presidential rule nor presidential rule mediated by “straw" official government. In principle, the strengthening of the parliamentary republic, including through a certain “parliamentarization" of the caretaker government, is a legitimate goal. If this goal had found legal expression in competently designed constitutional amendments, it could have had a positive effect, in view of the practice of the last four years, when caretaker governments were often an instrument of direct presidential rule.
But this goal can be fully achieved only by a Great National Assembly, as I have had occasion to justify in scientific publications, in the press, as well as during the public discussion in the Committee on Constitutional Affairs in the 49th National Assembly, which took place on December 5 2023. This is because only the original constituent power can change the status of caretaker government – for example, the manner of his appointment or the transition of the government in resignation, broadcast by the parliament, into a caretaker government regime, which is a widespread model in countries with a Westminster model of parliamentarism, as well as in Spain, Portugal, Israel and etc.
That which the derivative constituent power, viz. the ordinary parliament can change within the framework of its delegated partial constituent powers, is to introduce, for example, a requirement for political consultations of the president with the parliamentary groups before the appointment of a caretaker government, as well as to regulate at the constitutional level express limitations in its powers on the basis of the non-parliamentary source of its powers. Unfortunately, the deputies did not proceed with such type of changes, but limited the presidential discretion to a minimum. The said exhaustive and limiting catalog of senior officials from among whom the president must appoint an acting prime minister was introduced.
On the other hand, the president was excluded from determining the structure and composition of the caretaker government. I maintain that, so worded, this constitutional provision conflicts with the established form of government in its unfolded form outlined in the well-known practice of the Constitutional Court (Decision No. 3 of 2003). The conditioning of the president's political decision by an exhaustive catalog of officials, as well as by a proposal of the caretaker prime minister, have a binding character and limit the freedom of judgment that the Constitution has provided for the head of state in relation to the appointment of a caretaker government. This is not the case with the consultations with the parliamentary groups, which are non-binding in nature and represent an exchange of opinions, information and positions between the head of state and the main political forces, which can only strengthen the principles of parliamentary governance.
Thus, all these problems of a constitutional and political nature were initially clear and easily foreseeable. They are not an unexpected product of a political practice. Today, by virtue of the constitutional change, the institution of caretaker government is becoming rather a generator of a new wave of party confrontation, instead of being filled with the constitutional meaning invested in it by the original constituent power, namely – to restore stability in the “interregnum” (interregnum) until early parliamentary elections. This is so because of the wrong algorithm of the new constitutional procedure for his appointment.