In the last month in both Germany and New Zealand, new parliaments were elected. In neither case did the outcome predicate a particular coalition between political parties. In Germany, the election winner was Angela Merkel’s Christian Democratic union (CDU) and its Bavarian sister party, CSU. But they are left without their previous ‘grand coalition’ partner. Despite the rise of the Alternative for Germany party there was no question that the CDU was going to lead the negotiations to form a new government. The President of Germany, Frank-Walker Steinmeyer, has already met with party leaders to discuss the election results and hear about progress in forming a new government. In New Zealand, the Governor-General has no apparent role until a clear working government is ready.
The German president’s formal powers are very limited, but not as much as that of the New Zealand Governor General. The German president proposes a candidate for Chancellor to parliament who then has to be elected by an absolute majority. If the president’s candidate is unable to garner support from a majority of deputies, it is the parliament’s turn to propose and elect another candidate within the next fourteen days. Even if parliament fails to elect a new Chancellor in this time period, there is a final vote in which a candidate is elected by relative majority. Only then has the German president some leeway in decisionmaking as they can decide whether to appoint a candidate elected by relative majority (any candidate by absolute majority has to be appointed) or dissolve parliament.
The German Basic Law does not formally restrict the president in their choice of candidate for the head of government. But they are limited by the political realities of the systems. In Germany, presidents have waited for the end of coalition negotiations between parties to then propose the candidate for Chancellor who has a majority behind them. Yet as parliament can elect its own candidate after rejecting the president’s choice, the nomination is less consequential. Further, the stipulation of a ‘constructive’ vote of no confidence means that parliament can only dismiss a Chancellor/government by simultaneously electing a new one – leaving the president to merely formalise parties’ actions.
With the quick rise of the far-right Alternative for Germany Party in Germany this election, it will get much harder for future coalition governments to form without including them. Yet their inclusion will be met with resistance from parties and citizens. With constitutional constraints and established political practice, President Steinmeyer will currently continue to limit his involvement in the formation of a new German government to urging parties to quickly conclude their negotiations and to overcome the differences stressed from the campaign, but in future that will be more tested.
New Zealand’s public in the 2017 elections have been well served by New Zealand First by proposing a short, clear timetable and sticking to it. This has averted any discussion about the role of the Governor-General in appointing a government. However, the protracted negotiations of 1996 show that there is significant risk in continuing without clearer and slightly more activist reserve powers exercised by the Governor-General in coalition formation.
New Zealand would also be very unwise to continue to believe that the rise of highly anti-immigrant politics will not affect our politics as it has in Germany and every other strong democracy. With the continued splintering of the left and centre, it is easy to see coalition formation getting much harder. That will require greater guidance and more formal processes from the Head of State than are currently practised.
New Zealand’s Governor General Dame Pasty Reddy has no background in constitutional or administrative law. But she did do 11 years leading the mergers and acquisitions team for Brierley Investments Ltd, and has tonnes of governance experience. So she knows how to walk away from a deal and how to make one stick, and knows what it takes to put a new entity into the public through sharemarket flotation. The analogy is imperfect but pretty close. In future elections we may not have a politician as disciplined or as experienced in coalition formation as Winston Peters, or a Governor-General as well versed in partnership formation. I think it’s time to plan for that eventuality with some more guidance from the Head of State who will agree to a government being formed.
MMP in New Zealand without active processes to guide coalition formation and without more activated reserve powers from the Head of State is a mess waiting to happen. I don’t think this would take any amendments to the 1986 Constitution Act, or other relevant statutes. In the formation of our government, it is not appropriate for the New Zealand Governor General to act on the advice of the Prime Minister, because the Prime Minister is in a temporary capacity on advice about their own job. A more active independent Governor General would give greater confidence that the parliament can splinter further without concern that governments will get significantly harder to form.