Elected prime ministerial government in Kiribati

This post was inspired by JD’s comment on a recent post, which said that “There is an executive type (which to my knowledge has only ever existed in Israel, from 1996 to 2002), which allows the assembly to remove both the *elected* chief executive and his cabinet, by majority vote, which automatically triggers an election – elected prime-ministerial.” However, this is not the case. There is one country that not only uses this form of government, and has done so since independence: the small Pacific island of Kiribati.

Under the Kiribati Constitution, the office of Beretiteni (President) is directly elected, using first-past-the-post. The President appoints ministers from the unicameral legislature (elected using the two-round system), which does not require parliamentary approval. Not unusually for the Pacific Islands, the Attorney-General has a specifically defined role in the Constitution, and I believe holds a legislative seat automatically because of his office.

However, section 2 of article 33 states 

(2) The Beretitenti shall cease to be Beretitenti-

(a) if he resigns his office, by notice in writing addressed to the Speaker; 

(b) if a motion of no confidence in the Beretitenti or the Government is supported in the Maneaba ni Maungatabu by the votes of a majority of all the members of the Maneaba; 

(c) if, in respect of any matter before the Maneaba, the Beretitenti notifies the Speaker that a vote on that matter raises an issue of confidence, and in a subsequent vote on that matter it is rejected by a majority of all the members of the Maneaba;

 (d) if he ceases to be a member of the Maneaba otherwise than by reason of a dissolution of the Maneaba

If, under the provisions of 2a, the Beretiteni is removed from office, the Council of State (a body consisting of the Chairman of the Public Service Commission, the Speaker of the legislature, and the Chief Justice) takes office. 

This is where article 78 kicks in.
78. (1) The Maneaba ni Maungatabu (legislature) shall stand dissolved- 

(a) if a motion of no confidence in the Beretitenti or the Government is supported in the Maneaba by the votes of a majority of all the members of the Maneaba; or

(b) if, in respect of any matter before the Maneaba, the Beretitenti notifies the Speaker that a vote on that matter raises an issue of confidence, and in a subsequent vote on that matter it is rejected by a majority of all the members of the Maneaba. 

As I read it, this would rule out a change in government as a result of a no-confidence vote, as such a vote would automatically dissolve the legislature.

Following a general election, a ballot for Beretiteni is automatically scheduled. The Constitution stipulates that

The Maneaba (legislature) shall after the election of the Speaker nominate, from among members of the Maneaba, not less than 3 nor more than 4 candidates for election as Beretitenti, and no other person may be a candidate

Ordinary legislation is used to govern this election. As far as I can tell, the Borda count was used up to 2002, with voters being allowed to number only four candidates. However, in 2002, the legislation was amended (due to Borda being “complicated” and easy to manipulate)  to have a rather unusual variant of the two-round system. In the first round, the two candidates with the most votes are declared nominated for the Presidency, while in the second round all other candidates are voted on; the top two of these are also declared nominated.

Kiribati is unusually stable for a Pacific Island country. Since independence in 1979, there have been only five Beretitenis (excluding leaders of the Council of State who took an interim role in government) compared to eleven Prime Ministers of Vanuatu since 1980 and eight Prime Ministers of Fiji since 1983.

It also has a party system, though it is fairly weak. The Elections Ordinance makes no mention of political parties (except in a section prohibiting advertising from parties in a perimeter around the polling station); however, election results suggest that a substantial number of MPs are affiliated with political parties, as are Presidential candidates. What is confusing about the parties is that the literature I have read suggests that they nominated multiple candidates for the Presidency, which seems like very odd behaviour for a political party.

The first President to lose the confidence of the legislature was Ieremia Tabai. He was re-elected as President in 1982, but without a legislative majority aligned to him. By making a minor bill a matter of confidence, he was able to dissolve the legislature, with opposition MPs apparently going along unsure of the consequences. The result was Tabai’s re-election, and a much more compliant legislature.

Tabai’s successors, Teato Teannaki, was removed by a vote of no-confidence, and did not run in the 1994 election. His successor, Teburoto Tito, lasted longer, winning three elections, but a poor result by his party in the legislative elections of 2002 meant that his narrow 2003 victory was swiftly followed by a no-confidence vote. In the elections held later in 2003, the Pillars of Truth party won 16 out of 41 seats, to 14 for the Protect the Maneaba. The remaining seats were won by candidates not affiliated to one of the parties. The following Presidential elections saw Pillars of Truth candidate Anote Tong win, narrowly.

Tong was elected two more times, serving his full term both times. His Pillars of Truth party was the largest party in both elections, though without a majority. However, the fairly fluid party system meant that he was able to avoid no-confidence votes.

At the last election, Tong was term-limited (only three terms are allowed), and he was replaced by Taneti Maamau. He is a member of the Tobwaan Kiribati Party. I am not sure how the legislative seats were distributed; the Inter-Parliamentary Union site gives this group 19 seats to 26 for Pillars of Truth; however, this figure looks like it redistributed independents to the two parties. Either way, the figure suggests that Maamau does not have especially strong support in the legislature.

So, where does this odd constitutional arrangement come from? Well, in preparation for independence, the colonial governor of Kiribati arranged a Constitutional Convention, comprised of 165 members from different parts of the county which he appointed, in order to design a more appropriate constitution. While this was met with protest within certain circles of the British colonial administration, most of the decisions of the convention were adapted in the constitution.

The goal of having an elected President appears to have been to create a figure above parochial local politics, a worthy aim, especially in the Pacific. No-confidence votes leading to elections also might give MPs pause for thought, and lead them to consider negotiation before toppling the President. While I am unsure to what extent Kiribati’s constitutional model has led to its relative stability, it is certainly worth a look for other Pacific states.

Note: Information for this post was sourced from the second volume of Nohlen’s Elections in Asia and the Pacific as well as Atoll Politics: The Republic  of Kiribati edited by Howard Van Trease and Politics in Kiribati edited by Taomati Iuta.

51 thoughts on “Elected prime ministerial government in Kiribati

  1. Thanks for this post, Henry. The strong connectedness of constituents with their elected members really struck me when I was in Vanuatu, outback Tanna island. From our room at night, we heard singing nearby, with children’s voices mixed in. On exploring, we found about 20 local village children with adults, singing their hearts out! We were invited to join: “we do four part harmony, which part will you sing?” The main song had been written by the son of the village chief in praise of their newly elected parliamentarian, the first for the region. Many, many verses, which they sang over and over, radiating pride. I cannot imagine this ever happening in Australia and it was heartening to read your post pondering mechanisms for stability in a Pacific Island nation, given that the electorate is so much ‘closer’ to their representatives than here.

  2. Would it really be an elected “prime minister” if the head of government is also head of state and called “president” in English?

    This seems to be a hybrid of the Israeli and Cape Town systems (though obviously predating both).

    • For our purposes I think it’s more useful to differentiate between a leader who can be removed by majority vote in the assembly (‘prime minister’) and one who is elected directly and cannot (‘president’). Hence Kiribati’s Beretitenti and South Africa’s President are both technically prime ministers.

    • It’s a fair question, but I would say yes. If the head of government is responsible to the parliamentary majority, I think of that official as a “prime minister” regardless of whether there is a separate head of state or not.

      (I guess I could have just responded with, “what JD said”.)

  3. And yet the head of government is specifically not responsible to the parliamentary majority in Kiribati.

    The effect of a vote of no confidence is not the formation of a new government that has confidence, but an immediate dissolution. S78.1 The presidency passes into the hands of the council of state until a new presidential election can be held after the legislative election. The council of state is somewhat unusual:

    1. There shall be a Council of State, which shall consist of the persons for the time being holding or acting in the offices of Chairman of the Public Service Commission, who shall be Chairman, Chief Justice and Speaker.

    2. In the event of the Beretitenti ceasing to hold office in the circumstances specified in paragraph (b) or (c) of section 33(2) of this Constitution, the Council of State shall perform the functions of the Beretitenti and the other executive functions of the Government until the person elected at the next election of Beretitenti following a general election assumes office.

    Iceland and Ireland have collective interim presidencies but the chair of the public service commission is most definitely not a member, let alone the chair.

    There is no mechanism for the Maneaba to enforce confidence on the president as there is, for example, in South Africa. Repeated votes of no confidence would only ensure that the government stayed in caretaker mode under the council of state for extended periods. I suppose a newly elected Maneaba could block the old president from running by declining to nominate them, but that would be extremely difficult under the existing arrangements for nominating candidates to the presidency and could well have serious repercussions at the subsequent election. There have been some quite long periods of rule by the council of state, most notably 24 May 94-1 October 94.

    Kiribati seems to me an exotic fruit that deserves its own separate bed.

    NB ‘Beretitenti’ is how you transliterate ‘president’ into a language where most syllables must end in a vowel and there is no P.

    Intergovernmental bodies like the Pacific Forum and Pacific foreign ministries tend to refer to the Beretitenti as president. Governor-General of Australia Dame Quentin Bryce began her speech at a state reception in Bairiki on 28 March 2012 with: ‘Thank you Your Excellency, President Tong, and First Lady, Madam Tong, for so graciously hosting this reception today.’

    ‘ice-cream’ is famously transliterated ‘aihikirimi’ in the distantly related Malayo-Polynesian language of te reo Māori.

    • And “Nu Tirani” was the older version of rendering “New Zealand” into Maori. Of course “Aotearoa” is now the preferred Maori translation of the concept as opposed to the English (well, English-Dutch) word.

    • Alan, I’m afraid I don’t quite know what you mean. The Prime Minister cannot be replaced by a majority of the legislature, but he can be removed and new elections called for the legislature and for his position. That is how an elected prime ministerial system of government works.

    • Alan, in a regime where the prime minister is directly elected, a new election for PM is the (first step of) the formation of a new government. This step does not ensure that the incoming PM enjoys confidence, but that is an inherent feature of the system. Now, if the problem is the parliamentary dissolution, I would point out that this feature was included in Shugart and Carey’s (1992) description of the elected prime-ministerial model, and also existed in Israel (with the exception of a motion enjoying the support of 2/3) as a rule meant to increase stability, and conforms with the usual practice in many, though certainly not all, parliamentary systems (where the PM may either resign or call an election, but virtually always chooses the latter). Maybe it is not a necessary criterion – a system where the PM were elected and could be dismissed by the assembly without this resulting in the latter’s dissolution as well could almost certainly also be described as ‘elected prime ministerial’ – but seeing as it was included in that early definition, I can’t see how this very characteristic could exclude it.

      • Since Bagehot, who gave us the useful distinction between dignified and effective machinery of state, wrote in 1867 it’s been accepted the prime minister is appointed by the parliament:

        In this essay I made many remarks on the American Constitution, in comparison with the English; and as to the American Constitution we have had a whole world of experience since I first wrote. My great object was to contrast the office of President as an executive officer and to compare it with that of a Prime Minister; and I devoted much space to showing that in one principal respect the English system is by far the best. The English Premier being appointed by the selection, and being removable at the pleasure, of the preponderant Legislative Assembly, is sure to be able to rely on that Assembly.

        Shugart (2016 at 09:19) wrote:

        If the head of government is responsible to the parliamentary majority…

        The Bagehotian and Shugartian definitions are identical and clearly they apply to the South African presidency. It is not so clear that they apply to the i-Kiribati presidency which is not appointed by the legislature and is not clearly, as is the South African president, removable at their pleasure. The difference is emphasised by the new president holding, as noted elsewhere, for the moment at least, only a minority of the seats in the legislature.

        In Kiribati a new government is formed immediately a vote of no confidence occurs, but the parliamentary majority has no control over the council of state and only limited control over who becomes the next president in several months’ time.Nu contrast if the South African national assembly voted no confidence in Zuma tomorrow their next step would be to elect a new president themselves.

        In the recent Brazilian impeachment thread there was discussion of a presidential model that incorporated early elections at the call of the elgifsialture or the executive. How would one distinguish that system from Kiribati?

      • Alan, the system used in Kiribati is near-identical to the system used in Israel, which I have mostly seen described as ‘elected prime ministerial’ (Gallagher and Mitchell 2005, Shugart and Carey 1992 IIRC, and Gangof 2012). Perhaps new terminology is needed, but when I was writing the post I wanted to make it clear exactly what I was talking about. The South African example was purely for the purpose of demonstrating that just calling a leader ‘President’ does not make them a President in the traditional sense of being elected for a fixed term, without parliamentary confidence.

        In the case that Brazil allowed elections for the Presidency to be held at the behest of the majority of the legislature and vice versa, I would call that ‘elected prime ministerial’.

      • Henry

        Were the two models identical we would need then to explain why the direct election model led to such different results in Israel and Kiribati.

        I suspect the difference between the Kiribati model and the Israeli direct election model is the absence of investiture votes in Kiribati. Israel has always practiced a very high degree of positive parliamentarism where a new prime minister requires Knesset approval for themselves, their cabinet list and their general program. That practice continued during the direct election period. By contrast, a newly-elected i-Kiribati president simply appoints a cabinet and presumably has a brief chat with the members of the council of state. There is no investiture vote of any kind.

        I agree that we probably need a better terminology.

        On a sidenote, I follow the South African media quite closely and I don’t believe I’ve ever seen any post-apartheid president referred to as anything but ‘president’. After the spectacular defeat Zuma suffered recently in the constitutional court the universal term for the parliamentary attempts to remove him was ‘impeachment’, even that though the word does not appear in the South African constitution.

      • Think of it as a Venn diagram with two big circles, A and B, that overlap.
        Big circle A on the left: “Legislature can explicitly or impliedly [*] select a new Executive.”
        Big circle B on the right: “Legislature is dissolved if it votes against the Executive on some serious matter of confidence.”
        The overlap area is quite large and includes almost all parliamentary democracies.
        Among the very few cases that are in Circle A but not Circle B are Switzerland and Norway.
        Kiribati must be pretty much the only case that is in Circle B but not Circle A.
        [* The legislature “explicitly selects” the Executive if it elects the Head of Government by ballot, as in Germany (federal and most States), Ireland, Japan, Papua New Guinea, Scotland, and South Africa. The legislature “impliedly selects” the Executive if it can veto the Head of State’s nomination or appointment of Ministers, or can force their resignation, through an investiture vote, a no-confidence vote, or removal of supply, and if it is widely considered politically legitimate for it to use this power to insist on one lot of Cabinet personnel rather than another. Thus, in Britain, Canada and Australia, it is considered legitimate for the legislature to tell the Monarch “Kindly dismiss ABC as Prime Minister and appoint XYZ instead, or else we won’t pass Supply next May”; but in the USA or Brazil it is not considered legitimate for the legislature to tell the President “kindly withdraw ABC’s nomination for Secretary of Defense and put forward XYZ instead, because we won’t vote to confirm the former, only the latter.”
        [Ironically, of the only two cases two my knowledge where the legislature can select the Executive but cannot be dissolved, in Switzerland the legislature can explicitly elect Cabinet Ministers, but can’t vote them out: in Norway, the legislature can vote out Cabinet Ministers, but only the King can actually appoint them]

      • I think we need to separate ‘selection’ from ‘removal’. The French prime minister is appointed by the president but removable by the assembly. In the Weimar Republic, the prime minister* was appointed by the president and removable by either the president or the assembly. Often, ‘removable by’ is denoted by the expression ‘responsible to’, and the distinction between the two regimes is expressed by saying that the one was responsible to both the president and the assembly, and the other is only responsible to the assembly. That is what I understand by it, how I use it, and I think the same goes for our host, MSS, which is why he seems to agree that the definition DOES apply to Kitibati and the former Israeli system. (Alan, I don’t know how the quotes above confirm that the ‘Bagehotian and Shugartian definitions are identical’; if anything, taken in context it shows they probably differ by whether or not they require selection as well as removability by the assembly.)

        Therefore I say that the Kiribati ‘President’ (and formerly the Israeli prime minister) is ‘responsible to’ the assembly: the people choose the president, who is removable by the assembly. After removal, the President is once more chosen by the electorate, who hold the power of selection, and originally chose the President who was just removed. The fact that the assembly does not have the power to choose the President does not mean the President is not ‘responsible’ to it, as the powers of selection and removal are separate – and if the assembly was able to remove the President and ALSO then select a new one, the system would not be what MSS (with Carey 1992, and then Samuels 2010) call ‘elected prime-ministerial’, but parliamentary. The direct election of the prime minister is the whole distinction between the two.

        *Yes, the German prime minister is known as the ‘Chancellor’; I’m just using the technical term here to emphasize the equivalence.

  4. JD and Tom

    Let us stay with Bagehot’s definition of effective and dignified machinery because it makes life so much simpler. Bagehot was fully aware that in Britain the sovereign formally appoints the prime minister. He recounts a number of cases in the 1800s where sovereigns appointed prime ministers who ultimately had to return their commissions because they were unable to form a government. It is in this sense that Bagehot wrote of the ‘preponderant Legislative Assembly’ appointing the prime minister.

    There is no possible reading of the political system in Kiribati by which the assembly appoints the head of government. Merely arguing that selection and removal were different functions in Weimar tells us very little about selection and removal in Kiribati where they are also different functions and where one is explicitly vested in the people and one is explicitly vested in the Maneaba. That was not true of the Israeli direct election model because the ‘elected’ prime minister remained dependent on Knesset approval before forming and maintaining a government. It might be more accurate to refer to that model as popular nomination rather than popular election. As originally, proposed the direct election model would have excluded investiture votes:

    The Knesset diluted the powers of the prime minister that were proposed by the early drafts of the reform bill, by passing two amendments which stipulated that the parliament would approve the appointment of ministers and allow an absolute majority (61 MKs) instead of the more weighted majority of 70 to force the premier’s resignation.

    The Israeli people thus became a dignified part of naming a new prime minister, whose voice, like that of William IV in Britain, could be ignored by the effective part, the Knesset. The appointment remained wth the ‘preponderant Legislative Assembly’. The appointment of a new president in Kiribati does not remain with the Maneaba. The two systems are radically different.

    Let us look at Namibia, a very similar case, although there is no explicit provision for the National Assembly to force an election. They can however, like the Knesset under the direct election model but unlike the Maneaba, prevent the president from forming a government because there are explicit provisions for votes of no confidence in the cabinet and its members.

    1. The National Assembly may be dissolved by the President on the advice of the Cabinet if the Government is unable to govern effectively.
    2. Should the National Assembly be dissolved a national election for a new National Assembly and a new President shall take place within a period of ninety (90) days from the date of such dissolution.

    How do we distinguish Namibia from Kiribati? I say there are a small number of polities that exist almost entirely within Tom’s Circle B and I am not at all sure it is analytically useful to classify those systems as ‘elected prime ministerial’. It may be better to invent a new category of semi-parliamentarism or something. ‘Circle B polities’, with all respect to Tom’s analytical abilities, would probably not be a viable conceit.

    Discussing semi-parliamentarism could become a fairly urgent project if Brazil were to propose early elections as a solution to an interrupted presidency. It may be that an extended argument to distinguish ‘elected’ prime ministers from ‘elected prime ministers’ has limited potential to expand the reach of human knowledge.

    • Alan, “Merely arguing that selection and removal were different functions in Weimar tells us very little about selection and removal in Kiribati”
      Certainly. My argument here was merely about the meaning of the expression ‘responsible to’.

      “That was not true of the Israeli direct election model because the ‘elected’ prime minister remained dependent on Knesset approval before forming and maintaining a government.” The effect of the Knesset failing to vote confidence in an elected prime minister and his government would be the same as Kiribati’s assembly passing a non-confidence against the President: dissolution and early elections for both offices. I thought you argued above that this is what made Kiribati’s President not truly ‘responsible’ to the assembly? But maybe that is no longer part of your argument. I cannot tell.

      “The Israeli people thus became a dignified part of naming a new prime minister, whose voice, like that of William IV in Britain, could be ignored by the effective part, the Knesset.” I don’t know whether or not you still count the Knesset as ‘being able to ignore’ when such a decision entails dissolution. Whether or not you do, I have more to add on the importance (or not) of requiring an investiture vote in different contexts, but I’d like to get this part out of the way first. Alan, according to you, if rejection by the assembly of a just appointed/elected/selected chief executive results in immediate dissolution, can that assembly ‘ignore’ the selection? Is it then still, as you said, ‘preponderant’?

      • Weimar was pretty sui generis, both for the extraordinary degree of power vested in the president and the ability of the Reichstag to set aside the constitution pretty much at pleasure. The Weimar constitution remained in force until the surrender in 1945, although most of its provisions had been suspended by the Ermächtigungsgesetz 1933, because it was such a feeble restraint on the exercise of power. Hindenburg bought Hitler to power largely by refusing to consider any other government. To speak of dual responsibility, to both president and Reichstag, in that context is to speak of something that did not, when push came to shove, prove of any importance. The Reichstag did not meet the Bagehot definition any more than the Maneaba does.

        The parliamentary thresholds faced by a newly ‘elected’ prime minister in Israel were frankly pretty bizarre:

        Follovving the elections, the prime minister-elect has 45 days to present his or her cabinet and receive a confidence vote from the Knesset. The number of ministers, including the prime minister, must not exceed 18 or be less than 8. In addition to the prime minister, at least one half of the ministers must be Knesset members. Should the prime minister-elect not successfully present a government to the Knesset vvithin 45 days, special elections for the prime minister vvill be held within 60 days. If the same candidate is once again elected and fails to present a government vvithin a second 45 days, new elections are to be held once more but that candidate may not stand for election in the third round. The new system also provides that the tenure of the prime minister and the Knesset shall be four years long and they shall be elected simultaneously unless Knesset elections must be repeated (i.e. as a result of faulty elections) or the law calls for a special election of the prime minister.

        In particular, a bloody-minded Knesset majority could dispose of an ‘elected’ prime minister by forcing two successive elections, knowing the candidate they opposed could not run at a third election. The wonder is not that this model failed but that it ever functioned at all. In Kiribati a new president has zero, zip, nada thresholds to pass and simply assumes office.

      • Bagehot was speaking about the preponderance of the house of commons over the house of lords, not over sovereign, premier or cabinet.

        Nevertheless, it is hard to imagine anything more preponderant than the power of the Knesset to send a newly elected prime minister to a fresh election without the Knesset itself facing election. It should be unnecessary to add that this is a preponderance the Maneaba does not have. Really the interesting question is not how was the Israeli direct election model similar to Kiribati, but, given the preponderance of the differences, why anyone would think them similar.

      • Alan, I’ve just read the 1996 Basic Law on the Government (in the Hebrew original). If it were as you describe it then I would agree with you, at least in theory, but the way your source describes things does not match the way the law is written. The following parts are from the Knesset website’s official translation:

        14. (a) Within 45 days of the publication of the election results the Prime Minister elect will appear before the Knesset, present the Ministers of the Government, announce the division of tasks and the guiding principles of the Government’s policies, and the Prime Minister and the Ministers will begin their service, provided that the provisions of section 33(a) and (b) have been complied with. As soon as possible after that the Prime Minister and the Ministers will make their declarations of allegiance before the Knesset in the version specified in subsection (c).

        There is no formal investiture vote requirement anywhere, certainly not as a requirement to enter office. There is this:

        15. (a) Should the Government not be presented in accordance with the provisions of section 14, special elections will be held.
        [‘special elections’ are defined as being “separate elections will be held for the election of the Prime Minister”]

        The ‘presentation of the government’ mentioned in section 15 refers to section 14, and as the latter does not include an investiture vote, this only includes the formal presentation of the ministers, the government programme and swearing-in. The appointment of additional ministers after the government is formed matches this (section 33(e)), and the presentation of the new minister and swearing-in proceeds without investiture requirement. The Knesset may, however, pass a non confidence vote in the government, but it causes the Knesset to dissolve (here translated literally from Hebrew as ‘disperse’):

        19. (a) The Knesset may by means of a majority of its members adopt an expression of no confidence in the Prime Minister.
        (b) An expression of no confidence in the Prime Minister will be deemed to be a Knesset decision to disperse prior to the completion of its period of service.

        Other means of removal of the prime minister require a 2/3 majority, and may be seen as ‘impeachment’-like proceedings.

      • My references to Weimar should be construed as generic references to the president-parliamentary subtype and was purely illustrative. I might as well have mentioned Austria, Taiwan or Peru.

        Moreover, I am not trying to meet a definition which, as I already states, do not matching my usage – nor do I wish to argue that one definition or other is correct and the other is wrong (that would be a futile discussion) – I only give precedents for my usage. My usage of the term ‘responsible to’ is as a synonym of ‘removable by’, based on the way Shugart and others have used this phrase, and president-parliamentarism is my example for this. Is Bagehot’s definition ‘better’? Maybe. But my definition is hardly unprecedented and it is clearly understood when I give my definition, so I’m perfectly confident to use it without being bothered too much by what Bagehot or any other illustrious 19th-century political scientist had to say on the matter.

    • Basically what JD said. The 1992 Basic Law is here, and Section 14 makes no mention of special elections for the Prime Ministership only if there is a no confidence vote, only if the Prime Minister does not nominate a cabinet at all; removing the Prime Minister without dissolving the Knesset requires a special majority of eighty votes.

      Your own source says that “With the inauguration of direct elections for prime minister, procedures for dissolving the Knesset have been amended. New elections for the Knesset and the prime minister are held when the Knesset rejects the list of ministers proposed by the prime minister; when at least 61 MKs support a vote of no-confidence in the prime minister, when the Knesset fails to adopt the Budget Law within the three months after the beginning of the fiscal year; when the Knesset dissolves itself by passing a special law to that effect, or if the prime minister, after notifying the president, resigns and dissolves the Knesset”.

      • JD

        I disagree with your reading of the law which I did read, although in English, before posting. There is nothing in Section 15 that limits its effect to Section 14 unless ‘as stated’ has a special meaning in Israeli law. Why for example, would you say that Section 15 has no application to Section 3 which appears to provide for an investiture vote on the formation of the government?

        3. (a) The Government is comprised of the Prime Minister and Ministers.

        (b) The Prime Minister serves by virtue of his being elected in the national general elections, to be conducted on a direct, equal, and secret basis in compliance with The Election Law (The Knesset and The Prime Minister).

        (c) The Ministers will be appointed by the Prime Minister; their appointment requires the approval of the Knesset.

        (d) Should the Knesset reject the Prime Minister’s proposal regarding the composition of the Government, it will be regarded as an expression of no confidence in the Prime Minister, and the provisions of section 19(b) will apply.

        Elsewhere the law is quite explicit about when a section is to be read with another section, and it would be strange for one single section that is to be read with another not to state that explicitly. However this is not a statutory construction blog and I don’t plan on going into any great detail about how to read interlocking sections. Your reading of Section 15 is arguable, as is mine.

        Assuming that you accept that Section 3 provides for investiture votes, my position remains that the Israeli direct election model was an example of positive parliamentarism and Kiribati is not.

        The Israeli direct election model was spectacularly unstable and caused dramatic party fragmentation. The dissolution of the Knesset was not a discipline to small parties who did not contest the prime ministership. Indeed that particular failure of the reform was predicted while the 1992 law was under debate. It would follow that whether Section 15 applied to all failures of government formation or only Section 14 failures of government formation is really neither here nor there.

        The outcomes of the Kiribati model have been the exact reverse to the Israeli experience. I have identified the specific elements that are different: the absence of investiture votes, the role of the council of state, and the absence of a mechanism for the parliamentary majority to enforce confidence. Either identical models have mysteriously different outcomes (in which case we can all go home) or the models are not identical.

      • Alan, as regards section 3d, I suggest that you read 19b, since that states that the Knesset withdrawing confidence in the Prime Minister constitutes a decision by the Knesset to dissolve itself.

      • Henry

        You may care to read my previous comment where I noted I had read the whole document.

      • “Either identical models have mysteriously different outcomes (in which case we can all go home) or the models are not identical.”

        The specific way in which the executive is chosen is not the only variable in developing a country’s politics. Israel had been parliamentary for nearly fifty years before the introduction of an elected Prime Minister, uses a very proportional electoral system and has various religious and ethnic minorities. Kiribati had only had slight experience with democracy before the introduction of this system, uses a disproportional, personality-based electoral system, and is relatively homogeneous. Brazil and Nigeria are both presidential and federal, and yet have different political systems.

      • “Assuming that you accept that Section 3 provides for investiture votes,”
        Yes. I did not see section 3(d).

        “…my position remains that the Israeli direct election model was an example of positive parliamentarism and Kiribati is not.”
        Requiring an investiture vote is the very definition of positive parliamentarism. I suppose Kiribati’s model is negative parliamentarism then?

        “The Israeli direct election model was spectacularly unstable” Yes. But exactly zero elections were triggered by an incoming prime minister not being approved, leading to immediate dissolution and simultaneous elections for prime minister and Knesset. So I suppose the investiture vote was relevant to this differential result in some other way?

        “Either identical models have mysteriously different outcomes (in which case we can all go home) or the models are not identical.” Clearly. But you will find that neither Henry nor I ever described the two systems of identical – indeed there are probably many other relevant differences (such as electoral system) which you did not mention; we said they were very similar. We also posited that they were similar enough to be grouped together based on key characteristics, some of which make them both different enough from the standard definition of parliamentarism to fall under that category. I am not interested in debating whether or not they *are* in fact ‘similar enough’, or ‘different enough’, I merely point out the definitions put forward in the past by MSS and associates, and categorise the cases accordingly.

        Alan, you first seemed to argue that the consequence of immediate dissolution meant that a chief executive would not be responsible to the assembly; this is why I repeatedly brought that up, but my reading of your later comments is that this no longer matters and that Israel’s investiture vote still counts; this despite Kiribati’s non-confidence vote being discounted by you for this very reason. This seems contradictory. Could you please clarify?

  5. > I think we need to separate ‘selection’ from ‘removal’.
    On further reflection, I’d sharpen my terminology to distinguish between:
    (a) “formally electing” the prime minister (by ballot or by resolution), and
    (b) some legal mechanism that allows the assembly to veto the appointment of a prime minister or other ministers, or to bring their time in office to a premature and inglorious end. But this second mechanism has to co-exist with a public perception that it is legitimate for the assembly to use this power for the purpose of nominating or suggesting particular persons as ministers and/or head of government. The legal power alone is not sufficient if it’s merely a legal veto over individual ministers (a fortiori if it’s “just” a legal veto over the budget, which is even more indirect). After all, the US Senate has – if we’re going by written constitutional texts – far more explicit legal control over the selection of Cabinet officials than the Australian House of Representatives does. (Indeed, ironically, the Australian House of Representatives has more explicit legal power over the removal of life-tenured federal judges than it does over the removal of at-pleasure federal ministers). Yet while the US Senate may occasionally play whack-a-mole (“John Sununu’s unsuitable: send us another name and we’ll consider it” or “perhaps Secretary Rumsfeld should announce that he’ll be retiring to spend more time with his family, rather than seeking re-appointment”): and compare the Bork/ Ginsburg/ Kennedy shell game as regards judges), it has never been considered politically legitimate for the Senate to try to *nominate* Cabinet officials, even at times when the president was extremely unpopular and politically weakened (eg Nixon in 1974, Carter in 1980, bush II in 2006-08). (As part of this same “vibe”, in Myers v US, the Supreme Court invalidated a statute attempting to limit the President’s power to remove executive officials).
    In other words, I’d talk about the legislature “nominating” executive officials (Cabinet members, the head of government, or both). Explicit election falls within this category. Some legal power of veto or disallowance may fall within this category, but only if it’s widely viewed as politically legitimate for the assembly to put forward names and to play hardball if the head of state ignores its suggestions.

    • And some polities (USA, Argentina, Philippines, currently Brazil) are outside both circles on the Venn diagram.
      In polities in the overlap region, the choice between “legislature nominates new executive” and “legislature is dissolved” as paths to take when “legislature and executive are irreconcilably deadlocked” is typically made by the executive, sometimes without constraint (eg, Japan), sometimes subject to potential veto by a Head of State (most other polities in the overlap region).
      Re legal veto power plus political legitimacy – I should add that, in the older Westminster systems (a group that shrinks by the day and no longer includes NSW, Canada, Queensland, or even the UK itself) there were typically two chambers which each had legal power to block budget measures. That it was the lower and not the Upper House that was meant to enjoy the right to use this power to nominate Ministers was usually alluded to by a requirement that budget measures had to originate in the Lower House, and that the Upper House could not amend them (although of course it had full power to reject them).
      Having said that, the USA has both of these provisions (only Lower House can originate budget measures, but Upper House has full veto) yet of course does not have a Parliamentary system and, to the extent that either chamber plays any legal and political role in the selection of Cabinet members, it’s the Senate rather than the House.
      What I bring away from this is that Constitutional implications/ allusions (“budget measures must originate in the Lower House”) can have some effect on practice, as tiebreakers to determine who gets to nominate the executive, but are trumped (NPI) if (a) the Constitutional text is clear otherwise (“Cabinet personnel must be approved by the Upper House”) and/or (b) the executive itself has its own elective base of legitimacy.
      In other words, it’s a points system of sorts. In the USA, “The President shall be elected separately from the legislature” trumps “money Bills must originate in the Lower House” (especially when allied with “the President’s nominations must be confirmed by the Upper House – not the Lower”), but in Ireland “The President shall be elected separately from the legislature” is trumped in turn by “the Prime Minister shall be nominated by the Lower House” (and by the lack of any power of the Upper House to veto nominations).

      • The English house of commons, by the Financial Resolution of 1678, declared: ‘That all Aids and Supplies, and Aids to his Majesty in Parliament, are the sole Gift of the Commons: And all Bills for the Granting of any such Aids and Supplies ought to begin with the Commons: And that it is the undoubted and sole Right of the Commons, to direct, limit, and appoint, in such Bills, the Ends, Purposes, Considerations, Conditions, Limitations, and Qualifications of such Grants; which ought not to be changed, or altered by the House of Lords.’ Both houses of the English and then Union parliaments observed that rule from 1678 to 1909.

        The British parliament’s joint committee on the constitution recently wrote:

        67. Commons financial privilege considerably pre-dates the other distinctions between the powers and functions of the two Houses; even in the days when the Lords was at least as powerful as the Commons in relation to other legislation, it recognised that it had very limited authority over the grant of supply to the Crown. The Queen’s Speech at the beginning of each session makes it clear that the request for financial provision will be laid before the Commons alone. The Parliament Acts also provide for a special procedure for “Money Bills”, which the Lords may delay for only one month.

        Financially powerful upper houses were unknown at Westminster itself before 1909 and seem to have been a purely colonial invention. Americans, Canadians, New Zealanders and Australians may have thought that the house of lords had financial powers, but I think Jefferson goes into the limits on the house of lords at some length in his Manual. I could be wrong but I’ve looked up enough documents in the last 24 hours.

  6. JD at 3:59

    I may not be very good at it but I will continue to make my own arguments, struggle as I may.

    We are agreed then that investiture votes existed (and exist) in Israel but not Kiribati. Putting aside immediate dissolution for a moment, that is already a major difference between the two models, which were initially described at least by Henry as ‘near-identical’. We can expect very different kinds of outcomes in parliaments with and without investiture votes.

    As MSS wrote on 16 May 06:

    If no investiture were required in Germany today, it is likely that the current government there would be a Social Democratic minority cabinet. However, the investiture requirement would have allowed that only if the Left Party (Linke) and the SPD had been willing to be formally associated in such a vote. Given the constructive no-confidence vote in Germany, such an SPD minority would be quite stable, because it could be voted out only if the Christian Democrats and Left combined to agree on an alternative cabinet–which, of course, they could not.

    If one likes minority governments for combining clarity of responsibility with accountability to legislators representing a majority of voters, then one should prefer a model of parliamentarism in which there is no investiture and in which no-confidence votes must be constructive.

    Immediate dissolution, together with the role of the council of state, means that there is a new government immediately a no confidence vote passes in Kiribati, but it is a government from which MPs are excluded, which is most definitely not responsible to the parliament which does not exist once it is dissolved, and which may rule for an extended time. That is not only a second major difference between Israel and Kiribati, but between almost everywhere and Kiribati.

    My own feeling is that Kiribati is sui generis. If there is any useful analogy at all, the model is much closer to Namibia than to Israel under direct elections.

  7. Having read through both this wonderfully interesting thread and the Israeli Basic Law: The Government, in its former and current forms (in Hebrew), I wish to add a few points:
    1. Before 1996, the Israeli government was responsible to the Knesset both in nomination (through an explicit investiture vote) and in removal (by a non-confidence vote or refusal to pass the budget) – however a non-confidence vote or lack of supply would not result dissolution of the Knesset and new elections but in a new government formation process. So Israel was in circle A but not in circle B (re: Tom at 2:59). A feature of the ’96-’01 system that was retained even after it was repealed is the power of the PM to request the President to dissolve the Knesset if there is “a majority in the Knesset opposing the government” – but in such a situation 61 Knesset members can annul the dissolution by asking the president to appoint another Knesset member to form a new government.
    Note that in Israel, till this day and through all different stages, the Knesset always retained its unique power to dissolve itself with a simple majority act.
    2. Between 1996 and 2001, when direct elections for prime-minister were repealed, there was indeed an investiture vote, failure at which would have resulted in new elections for both Knesset and prime-minister. Only in the odd situation where the newly elected prime minister would not even face the new Knesset would there be new elections for the prime minister alone at that stage. I have no idea why such a provision was inserted when the newly elected prime minister could so clearly have avoided this situation by simply meeting the Knesset and losing the investiture vote. I can only assume (without having checked the original bill as proposed) that this may have been a relic from an earlier version where there was no investiture vote.
    3. Still on the ’96-’01 period – the Knesset had indeed 2 methods to dispose of a prime minister: either have a no-confidence with a vote of 61 Knesset members out of 120 (or reject the proposed budget) and face dissolution; or remove the prime minister at a special 80 Knesset member vote. In addition the Knesset still retained its power to dissolve itself and bring about fresh elections for the PM as well as the Knesset. If I remember correctly it was indeed discussed in 1999, when it was clear that PM Netanyahu lost his favour with a majority of the Knesset members, that “61=80” meaning that if a majority could be found and proven for a non-confidence vote, than the rest of the house would follow to remove the PM in order to avoid dissolution. In the event this did not materialize and the Netanyahu government of the day agreed to have new elections for both Knesset and PM through a simple act of dissolution by the Knesset.
    4. As for the importance of investiture vote in the ’96-’01 period – I am not sure this played a significant role. Both Netanyahu and Barak had no problems presenting a government that passed the investiture vote with flying colours immediately following their direct election as prime ministers. The problems arose with maintaining the coalition – not in building it initially. In this sense I believe the party system fragmentation – which in itself was usually attributed to the direct elections of the PM – was more responsible for the instability involved in the system. It is worth noting that the party system did not wholly recovered even after repeal of the direct elections of the PM and indeed in recent years the instability of governments resumed.

    • Tank you for resolving the Great Section 15 Controversy of 2016. I have seen plates of spaghetti that were laid out wth more precision and transparency than that legislation.

      Failure to exercise a power does not neessarily mean either repeal by desuetude (lovely word) or that the power no longer guides what political actors do. An Australian federal ministry was last defeated on the floor of the parliament on 3 October 1941. That does not mean that ministries have acted since as though they were not subject to confidence.

      During the GW Bush administration it was often surprising to read US articles suggesting that prime ministers are overthrown by parliaments at frequent intervals. This belief seems to have left office with that administration.

    • One last note – in late 2000, when it was clear Barak does not enjoy the confidence of the Knesset any more, the country was supposed to have new elections for both Knesset and PM (I think Barak intended to ask the President to dissolve the Knesset). At the last minute Barak decided to resign and thus cause a special elections for PM alone without Knesset elections. I think his intention was to make it harder for a new PM from the rival Likud party to govern with a Knesset where Likud had only 19 Knesset members. Netanyahu indeed backed down from running for this reason – Sharon did not. He won the elections easily. It turned out he had no problem winning the investiture vote and governing the remaining 2.5 years till the Knesset original term expired. So, to sum up the direct election of PM experience, it seems that a consensus emerged that the person elected to the office by the public should be allowed to form a government and therefore those elected had no trouble putting together a coalition and passing the investiture vote, even when the composition of the Knesset did not present options for a homogeneous coalition. In this sense the system did work as it was expected – it gave extra power to the PM over the minor parties, compared to their relative size. But the problem was the”major” parties themselves became not so major at all. Eventually it became impossible for the PMs to maintain the “minor” parties, with their conflicting narrower interests, inside the coalition.

      • “it seems that a consensus emerged that the person elected to the office by the public should be allowed to form a government and therefore those elected had no trouble putting together a coalition and passing the investiture vote, even when the composition of the Knesset did not present options for a homogeneous coalition.”

        Well said, and this shows that “presidentialization” indeed worked.

        “But the problem was the”major” parties themselves became not so major at all.”

        Yes, and thus the retention of a “parliamentarized” component of the hybrid, along with extreme proportional representation, also worked!

  8. The Interpreter article Alan linked to above has brought up something interesting regarding this particular system of government. In 2010, Nauru held a referendum on amending the Constitution as part of a broad reform process. While most of the reforms involved changes to constitutional rights, they also included the direct election of the President, from candidates nominated by the legislature.

    The President would be responsible to the legislature, and a no-confidence motion in the President would lead to the dissolution of the legislature. The proposed amendments would be near-identical to Kiribati, with the President even being temporarily replaced by a ‘Council of State’ following a no-confidence motion. The draft constitution is here.

    • We should probably mention that Nauru is in a fairly grave state, although not because of investiture votes.

      In 2014 the government of Nauru revoked the visa of the chief justice, an Australian, who resigned 2 months later. The chief justice was scathing about the experience. The government then arrested and deported the resident magistrate, also an Australian.

      The government attempted to appoint a new chief justice on a fixed contract of 6 months at a time. That plan failed only because they could not find anyone to accept the office on that basis.

      Five of the 19 MPs have been permanently suspended from the parliament. Criticism of the government has been made punishable by 7 years in jail. New Zealand has cut off aid, but Australia and Fiji have blocked any action in the Pacific Forum.

      Australia relies on Nauru to house a large refugee detention camp. The camp is the country’s largest employer.

      • Would it be illegal, or simply a bad pun, to describe this approach as “batshit crazy”?

      • Tom

        That pun is so bad that MSS should cast you into the outer darkness forever. For the understandably confused, Nauru is a guano island.

      • Guano can come from bats, true. But in Nauru’s case I believe it comes from migrating seabirds who found the islands a convenient resting point. I don’t think bats can make it across the Pacific.
        In most photos of Nauru, the terrain looks like a moonscape. Decades of phosphate mining. Needless to say, no one invested the royalties during the good years. Another Pacific jurisdiction that would have done well to copy Alaska.

      • There are 3 indigenous bat species in New Zealand and the Hawaiian hoary bat is the state land mammal, so bats can cross oceans, but I don’t think we need an intense guanological debate.

      • I doubt many of either lions or unicorns have crossed the English Channel of late, and it’s considerably narrower than the Pacific Ocean.

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