Democracy and the limitation of mandates
Information report
| Doc. 13282
| 05 July 2013
- Committee
- Committee on Political Affairs and Democracy
- Rapporteur :
- Mr Mike HANCOCK,
United Kingdom, ALDE
- Origin
- Reference
to the committee: Doc.
11863, Reference 3596 of 28 September 2009. Information report
approved by the committee on 25 April 2013. 2013 - November Standing Committee
Summary
The report refers to a study on “Democracy, limitation of
mandates and incompatibility of political functions” prepared by
the Venice Commission at the request of the Committee on Political
Affairs and Democracy.
The committee concludes that this study is a valuable source
of information on the constitutional and legal arrangements with
regard to limitations on the number of terms in office for presidents
which exist in Europe and in some other countries.
It recommends the study to national, observer and partner
for democracy delegations to the Parliamentary Assembly of the Council
of Europe, and to their respective parliaments, as food for thought
for their work aimed at improving democracy.
At the same time, taking into account the variety of constitutional
and legislative set-ups across Europe, the report concludes that
it would not be appropriate to submit a draft resolution on this
matter.
1 Introduction
1. A motion entitled “Democracy and the limitation of
mandates” was tabled by Mr João Bosco Mota Amaral in April 2009.
The motion pointed out cases where elected political leaders in
power sought to abrogate, by referenda, constitutional provisions
imposing a limitation on the number of terms of office which one
person may serve in a high executive position.
2. According to the signatories of the motion:
“The limitation of mandates for
top presidential or governmental positions is an effective tool
against the concentration of power in the hands of one person and
his group or political party and therefore should be considered
a guaranty for democracy.
The abolition of any constitutional provision with that
content should be considered as a threat to democracy, strongly
against the principles and values of the Council of Europe.
The Assembly needs to discuss this subject and take appropriate
measures in order to prevent that kind of damage to democracy –
which is expanding in Third World countries – in the member-countries
of the Council of Europe.”
3. The motion was referred to the Committee on Political Affairs
and Democracy, which appointed Mr Hendrik Daems (Belgium, ALDE)
as rapporteur in October 2009. When doing so, the committee took
note of the rapporteur’s intention to go beyond the narrow scope
set out by the motion, namely the limitation of consecutive terms
of office for the highest officials of the executive branch, and
also to cover any similar limitations for elected representatives
at various levels, as well as the limitation of the possibility
to simultaneously hold mandates at different levels of power.
4. In November 2010, Mr Daems left the Assembly. I was appointed
as new rapporteur in January 2011. In October 2011, the committee
held a preliminary exchange of views on the issue and agreed that
the European Commission for Democracy through Law (Venice Commission)
should be consulted on this matter.
5. In December 2012, the Venice Commission adopted a report on
“Democracy, limitation of mandates and incompatibility of political
functions”.
Note In
March 2013, the Committee on Political Affairs and Democracy heard an
oral presentation of the main findings of the report by Mr Thomas
Markert, Secretary of the Venice Commission, and considered an option
to present an information report.
2 Overview
of the Venice Commission’s report
6. The report adopted by the Venice Commission provides
general notions on democracy and representation (Section II), and
a theoretical reference to the limitation of mandates and the right
to re-election of the holders of political functions (Section III).
It also traces the historical evolution of the limitation of mandates
(Section IV).
7. In Section V, the report provides a comparative overview of
the constitutional and legal aspects of the limitation of presidential
mandates in a number of Council of Europe member States, as well
as in some non-European countries (for example Brazil, Israel, Korea,
Mexico, the United States, etc.). Section VI mentions the main arguments
both in favour and against the limitation of the mandates of the
holders of political functions.
8. Sections VII to IX deal with various aspects of the limitation
of the possibility to simultaneously hold different political functions
or offices. Reference is made to the constitutional and legal provisions
of a number of countries.
9. Finally, Section X seeks to sum up the variety of situations
across Europe, and draw some conclusions from the data collected.
It states (paragraph 119) that “[s]een from the constitutional prism
of most of the Council of Europe member countries, the limitation
of the mandate of the president of state is closely linked to the
right to only two consecutive mandates”.
10. The report further concludes (same paragraph 119) that “[w]hen
it comes to the function of members of parliament, however, the
situation is very different, since there are in general no constitutional
limitations here, not in the Council of Europe states, nor beyond,
with regard to the right to (re)election, like there are for the presidential
function”.
11. With respect to the incompatibility of political functions,
the report also finds that constitutional practice is quite diverse
(paragraph 120).
12. In general, the report concludes (paragraph 122) that “[t]he
limitation of mandates aims at strengthening democracy as does the
incompatibility principle between different political functions”.
13. This conclusion, however, needs to be read in conjunction
with the observation (paragraph 117) that “[t]he effects of the
principles of limitation of mandates and incompatibility of political
functions in a given country widely depend not only on their constitutional
and legal dimension but mainly on the model of separation of powers
in that country”.
3 Conclusions
14. The Committee on Political Affairs and Democracy
is of the opinion that the comparative study prepared by the Venice
Commission is a valuable source of information on the constitutional
and legal arrangements with regard to limitations on the number
of terms in office for presidents which exist in Europe and in some
other countries.
15. It therefore recommends the study to national, observer and
partner for democracy delegations to the Parliamentary Assembly
of the Council of Europe, and to their respective parliaments, as
food for thought for their work aimed at improving democracy.
16. At the same time, the committee does not find it appropriate
to submit to the Assembly, at this stage, a draft resolution on
this matter. Indeed, the study clearly shows that there are no best
practices in the fields covered which would be applicable to all
Council of Europe member States. Further discussions are needed to
find out to what extent common standards would be possible, feasible
and useful.
17. Under these circumstances, and also taking into account the
variety of constitutional and legislative set-ups across Europe,
it does not seem likely that a one-fits-all Assembly resolution
would be of any practical use.
18. In addition, the committee believes that recent tendencies
in a number of Council of Europe member States towards the limitation
of the number of terms of office for parliamentarians need to be
carefully analysed. The regular Assembly debates on the state of
democracy in Europe could offer an appropriate framework for this.
19. The committee thanks the Venice Commission for its valuable
contribution and looks forward to further co-operation with it.
