Professional Documents
Culture Documents
Constitutional Tools
to Preserve Democracy
TABLE OF CONTENTS
ACKNOWLEDGEMENTS
PREFACE
ii
EXECUTIVE SUMMARY
INTRODUCTION
RECALL/VOTE OF NO CONFIDENCE
IMPEACHMENT
12
SUCCESSION
15
CRIMINALIZING COUPS
19
SLIDES
23
PRESIDENTIAL RECALL:
THE CASE OF VENEZUELA
28
PRESIDENTIAL IMPEACHMENT:
THE CASE OF KOREA
43
PRESIDENTIAL SUCCESSION:
THE CASE OF ARGENTINA
56
69
ARGENTINA
69
CANADA
76
KOREA
83
NIGERIA
89
ROMANIA
96
RUSSIA
104
SOUTH AFRICA
113
SPAIN
121
THAILAND
129
VENEZUELA
138
APPENDIX
ABOUT THE DEMOCRACY COALITION
PROJECT
148
LIST OF REVIEWERS
151
17
Presidential
Argentina
Constitutional
Monarchy/
Parliamentary
Canada
Presidential
Nigeria
Mixed
Romania
Presidential 1
Russia
Parliamentary
South
Africa
Presidential
South
Korea
System of
Government
Impeachment
Provisions3
Recall
Provisions /
Motion of No
Confidence
for Chief
Executives2
Succession
Provision4
Constitutional
Monarchy/
Parliamentary
Spain
Constitutional
Monarchy/
Parliamentary
Thailand
Presidential
Venezuela
X
X
1 The Russian system of government has elements of a mixed system, but in practice is considered a presidential system.
2 The Argentine, Russian, South Korean and Venezuelan constitutions all include some features in their presidential systems that serve the function of a minino confidence motion, for example, allowing the legislature to remove at least one member of the presidents administration on a motion of no confidence.
3 While Canada and Spain allow prosecution of their prime ministers for criminal violations, the only means to remove the prime minister from office is a vote
of no confidence.
4 Canada and Thailand do not have constitutional provisions to identify an immediate successor to act as interim prime minister, though they do have
processes to choose a new permanent prime minister. Spains succession provisions can be found in the basic law of government, rather than the
constitution.
23
Constitutional
Monarchy/Parl
Canada
Motion of No
Confidence
Mixed
Romania
Motion of No
Confidence
Parliamentary
South Africa
Motion of No
Confidence
Constitutional
Monarchy/Parl
Spain
Motion of No
Confidence
Constitutional
Monarchy/Parl
Thailand
Recall
Presidential
Venezuela
System of
Government
Motion of No
Confidence
A petition may be
filed once during a
term in office.
Total number of
votes cast must be
25% of the total
number of
registered voters.
20% of registered
voters must sign
petition for a
referendum.
Mechanism
No confidence
motions proposed
due to alleged
impeachable offenses
must be referred to
the Senate for
impeachment first.
Majority of all
members of the
House required for
passage.
Motion must be
proposed by 40% of
the House of
Representatives. It
must also include a
candidate to replace
the prime minister.
Vote of confidence
in Cabinet may be
inclusive or
exclusive of the
president.
Majority of all
members required
for passage.
Five-day waiting
period required
before vote.
Motion must be
proposed by 25% of
the total number of
deputies and
senators.
Debate begins three
days after motion
initiated.
Majority of all
deputies and
senators required for
passage.
If confidence is
withdrawn and the
Assembly cannot
choose a new
president within 30
days, new
parliamentary
elections are called.
Majority of
members of the
National Assembly
required for
passage.
Motion must by
proposed by 10% of
the Congress. It
must also include a
candidate to
replace the prime
minister.
Requirements
New parliamentary
elections are not
called if confidence
withdrawn, unless a
new prime minister
cannot be agreed
upon within 60 days.
If vote does not pass,
a new one may not
be held in same
parliamentary
session.
24
No
No
Two-thirds
of both the
House of
Deputies
and the
Senate
Misconduct
or crimes
Argentina
Impeachment
Scope of
Activities that
Can Trigger
Impeachment
Legislative
Action
Required
Action
Required by
nonLegislative
Body
Prohibitions
on Seeking
Office
Canada
Criminal
violations
No
confidence
motion
required to
remove
Standard
criminal
investigation
No
Nigeria
Grave
violation or
breach of
the
constitution,
or gross
misconduct
1/3 of the
members of
the
Assembly to
initiate
2/3 of both
houses to
investigate
2/3 of both
houses to
remove the
president on
findings of
investigation
Chief
Justice must
name
independent
panel to
investigate
allegations
No
Romania*
Grave
infringement
s of the
constitution
High
treason
One-third of
members of
parliament
to initiate
Majority of
MPs to
suspend
from office
Two-thirds
of MPs to
impeach
Referendum
within 30
days of
suspension
to remove
Trial before
Supreme
Court of
Justice
No
Yes
High
treason or
grave
crimes
Russia
South Africa
An act
violating the
constitution
South Korea
Spain
Thailand
Venezuela
Yes
(five-year
ban)
NCCC
investigatio
n upon
initiation of
process
50,000
signatures
may also
initiate
Commission
(NCCC)
investigation
Three-fifths
of the
Senate to
remove
upon
National
Counter
Corruption
One-fourth
of the
House to
initiate
Failure to
comply with
or enforce
the
constitution,
or breaking
laws
Trial before
criminal
section of the
Supreme
Court
No confidence
motion
required to
remove
Absolute
majority of
Congress to
pass
One-fourth of
Congress
required to
initiate
investigation
of treason,
etc.
Wealth
indicative
of
corruption
or
intentionall
y violating
the
constitution
or law
Constitution
al Court
must
adjudicate
impeachme
nt
No
Yes
Trial before
STJ
Attorney
General
independent
by
Charges filed
Legislature
may stop
the
Supreme
Tribunal of
Justice
(STJ) from
considering
an
impeachme
nt charge
Criminal
violations,
including
treason or
other offenses
against the
security of the
State
May appeal
to
Constitution
al Court to
adjudicate
the process
No
Two-thirds
of the
National
Assembly
Yes
Two-thirds
of the
National
Assembly
Serious
violations of
constitution
or law,
serious
misconduct,
or inability to
perform
functions of
the office
Approval of
Duma
commission
Two-thirds
of both
Duma and
Federation
Council
Supreme
Court to
verify crime
Constitution
al Court to
certify
appropriate
procedure
No
*Romania has two separate processes to impeach its president, which are listed here. Its prime minister can be prosecuted for criminal offences upon the request of the
president, the Chamber of Deputies, or the Senate. However, only a no confidence motion can remove him or her from office.
25
Nigeria
Romania
Russia
South
Africa
South
Korea
Spain
Thailand
Executive
Vice
President
Venezuela
Canada
Successor
chosen by
King
Argentina
First Vice
President
Member of
the Cabinet
Prime
Minister
Member of
the State
Council
If within 1st
four years of
presidents
term, new
elections
within
30 days
N/A
Yes
Yes
N/A
N/A
Deputy
President
Member of
the Cabinet
N/A
Yes
Assembly
Speaker
No
Prime
Minister
For PM:
Interim PM
chosen by
President
Yes
For
President:
New
elections
within
3 months
No
Vice
President
Vice
President
Successor
formally
chosen by
Governor
General;
party in
power
designates
new leader
Yes
Senate
President
Subsequen
t
successors
chosen by
the
legislature
N/A
For
President:
Senate
President
Chamber of
Deputies
President
Yes
Succession
Line of
Succession
First in Line
Elected?
If vice
president,
remainder of
presidents
term.
If vice
president,
remainder of
presidents
term.
No
N/A
Until new
Government
is chosen
Yes
N/A
New
elections
within
60 days
Yes
Yes
Assembly
must
choose new
president
within
30 days
No
Yes
New
elections
within
3 months
No
Yes
For PM:
Until new
Government
is formed
Yes
Yes
If Senate
President,
elections
held within 3
months.
N/A
Yes
Length of
Interim Chief
Executives
Term
By custom,
Gov.
General
appoints
acting PM
who serves
until
replacement
chosen by
majority
party
Yes
N/A
If after the
fourth year,
successor
serves out
remainder of
presidents
term
Interim Chief
Executive
Wields Full
Power
Yes
Other
successors
can fulfill the
term or
serve until
the
legislature
declares
new
elections.
Interim Chief
Executive is
Eligible to
run for the
Position in
Next
Elections
26
Nigeria
No
Criminalize
s not
informing
about coup
plots
No
Criminalize
s not
informing
about coup
plots
Canada
Criminalizing Coups
Constitution
Criminalizes
Coups
Argentina
Criminal
Code
Criminalizes
Coups
No
Right to
Resist
Nonconstitutio
nal Acts
Whistleblo
wer
Protection
Prohibitions
on Convicted
Coup
Participants
Holding
Public Office
Laws that
Encourage
Resistance to
Coups
(e.g.
denunciation
of plots and
nonparticipation
in illegitimate
government)
Romania
X
Yes
Russia
X
No
South
Africa
X
No
South
Korea
X
No
Spain
Thailand
Venezuela
No
X
N/A
N/A
Yes
Right to
Resist
Nonconstitutio
nal Acts
Criminalize
s not
resisting
coups
27
procedures for counting the vote, the role of international observers, and
whether President Chavez could run again in the election if he were
removed from office.
In the predawn hours of August 16, with initial results projecting a
big 58-42 percent win, President Chavez appeared before thousands of
partisans gathered at the presidential palace to declare victory. Leaders of
the opposition coalition cried foul, claiming this was massive fraud.48
According to news reports, gunmen fired on an opposition demonstration
later the same day, wounding seven people including a woman who later
died.49 Former President Carter and Secretary General Gaviria quickly
announced that their own quick count had confirmed the official results and
urged the National Electoral Council to allow a transparent audit and to
examine any credible concerns raised by the opposition. After two rounds
of audits, and no credible evidence of electoral fraud, the Carter Center
called on all parties to work together to solve the pressing problems of the
country.50
Conclusions
1. Venezuelas popular recall mechanism offers a novel constitutional
avenue for removing an unpopular president. However, the complexity of
any recall process and the strain placed on Venezuelas political discourse
and political institutions may outweigh its advantages.
The Venezuelan constitutions unusual recall mechanism (article
72) has the potential to act as a popular counterbalance to the broad powers
granted to the chief executive. It offers something like a parliamentary
motion of no confidence but is instead directly controlled, in theory, by the
voters. At the same time, article 72s requirement that a recall cannot occur
until halfway through an officials term in office and thresholds for voter
turnout and winning majorities protect against frivolous attempts to
destabilize an elected government. The mechanism has provided both sides
an imperfect, but important, incentive to follow the rule of law to settle their
disputes
48
39
91
98
since the generals had ordered their troops to stay in the barracks, they had
not forced Chavez to resign. The majority portrayed the generals actions as
simply that of filling a power vacuum created by the resignation of the
president. The court, however, did not address the generals active
participation in undermining the constitution, with respect to the
appointment of Carmona and the dissolution of Venezuelas political
institutions, throughout the crisis. Following this ruling, the Attorney
General, Isaias Rodriguez, ended investigations into sixteen other military
officials who had taken part in the coup.
Possibly encouraged by the STJs ruling, members of the military
have taken aggressive public positions against the government in the months
following that decision. In November 2002, a group of military officers,
labeling themselves Comacates, publicly threatened pro-Chavez military
officers. Around the same time, 14 senior officers peacefully assumed
control of a public square and called for the resignation of President Chavez.
The ranks of those who occupy the square include some who took part in
the April coup. The officers have argued that their actions amount to
neither rebellion nor insubordination. They assert under Article 350 of the
constitution that their actions are legitimate.358
Instead of prosecuting anyone directly involved in the coup, in at
least two instances, Venezuelan authorities have stretched the laws aimed at
deterring seizures of power to target members of the opposition. For
example, two leaders of the massive anti-Chavez strikes of 2002-2003,
Carlos Fernandez, leader of the business association Fedecamaras, and
Carlos Ortega, president of the countrys largest labor union, were indicted
on charges of treason, rebellion, and inciting violence for their participation
in the economically-crippling strike.359 Pending an appeal of his case,
Fernandez fled to the United States. Similarly, Ortega has spent a
controversial tenure as a political refugee in Costa Rica. While the STJ
affirmed the indictments of rebellion and instigation of violence, both men
remain abroad.
Conclusion
The Venezuelan constitution has ushered in novel forms of direct
democracy which Chavez has effectively manipulated to centralize power.
It is poorly drafted and vaguely worded, with obscure provisions and
358
Joseph Contreras and Phil Gunson, Division in the Ranks, Newsweek, 4 November
2002.
359
Judge Orders House Arrest for Chavez Foe, Associated Press, 23 February 2003.
145
148
149
150
151
152
153