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Background Paper 12 1997-98
Methods of Choosing a Head of State
(Update of Background Paper No. 12 issued 7 June 1993)
Originally by former staff member Anne Twomey
Law and Bills Digest Group
Updated by Rosemary Bell
Law and Bills Digest Group
23 January 1998
Contents
Introduction
Context in which the decision must be made
Election of a head of state
The Constitutional Conventions of the 1890s
Arguments in favour of election
Arguments against election
Recent commentary
Summary
Methods of nominating a candidate for head of state
Current Australian practice
Non-elective methods of choosing a head of state
Appointment
Lottery
No head of state
Comparison of methods of electing a head of state
in other countries
Popular election of a head of state
Election of a head of state by an electoral college
Collective heads of state
Election of the head of state by Parliament
Nomination procedures
Nominations for popular election
Nominations for election by an electoral college
Nominations for election by Parliament
Qualifications for office
Citizenship, place of birth, residence and right to
vote
Personal qualities
Age
Exclusion of people who have held particular positions
Offices of profit and other incompatible offices
Term of office and eligibility for re-election
Removal of the head of state from office
Removal by the Parliament or the electoral college
Removal by the Parliament and the courts
Removal by the Parliament and the people
Concluding remarks
Endnotes
This paper does not canvass the relative merits of monarchies
and republics. Rather, it considers how an Australian head of state may
be chosen if Australia were to become a republic.
The first part of the paper addresses arguments for and
against the election of a head of state, looking first at the arguments
that were raised in the Constitutional Conventions of the 1890s, and then
at more recent comment. It also briefly addresses alternative methods
of selection of a head of state, which do not involve election.
The second part of the paper is a comparative analysis
of methods used in other countries to select a head of state. It also
covers such related issues as nomination of candidates for head of state,
qualifications of the head of state, term of office and procedures for
the removal of the head of state.
It should be noted that although this paper deals solely
with methods of choosing a head of state and the related aspects described
above, the decision on which method to choose cannot be made in a vacuum.
It is integrally related to other factors such as the nature of the powers
of the head of state. For example, it may be considered that a politically
powerful head of state should be directly elected by the people, whereas
a ceremonial head of state may more appropriately be chosen in a less
direct and partisan manner.
The method of choosing a head of state must also be consistent
with the form of government. If Australia is to maintain its system of
responsible government, in which the Ministry is composed of people elected
to the Parliament and responsible to the Parliament, then it may be considered
inappropriate by some, for the head of state to be directly elected by
the people outside the Parliamentary system.(1)
Finally, the position of the States in the federation
must be taken into account. The States may claim a role in the process
of choosing the head of state, particularly if they were to abolish the
position of State Governor, and the Australian head of state were to represent
the States as well as the Commonwealth.
It is not within the scope of this paper to address all
these issues. This brief is intended to contribute to the debate about
a republic by offering examples from other countries of methods of choosing
a head of state, and some general commentary on the suitability of these
methods in Australia.
Apart from those countries where the head of state is
an hereditary monarch(2), most heads of state in democratic countries
are elected. Methods of election vary between popular election, election
by an electoral college, election by parliament, and ratification of the
Government's nominee by the Parliament. The question arises however, of
whether any form of election of an Australian head of state, would be
consistent with our form of responsible government.
The Constitutional Conventions
of the 1890s
The advisability of electing the Australian Governor-General
was discussed at some length in the Constitutional Convention Debates
of the 1890s. Although many of the arguments raised concerned loyalty
to the Queen and maintaining the links between Australia and Britain,
the arguments concentrated upon here are those which relate to the question
of whether it is appropriate to elect a head of state given our system
of responsible government.
Arguments in favour of
election
The prospect of electing the Governor-General was raised
by Sir George Grey, a representative of New Zealand at the 1891 Sydney
Convention. The argument he presented is one that has been recently revived:
that every Australian should be able to aspire to the achievement of every
office in the country. Sir George argued:
I believe in my own mind that it is essential to
you that every one of your officers should be elected by the people
of this country. Even in the case of your governor-general I believe
the people ought to have the right of choosing who that man shall
be.... They will choose well, they will choose wisely, and no nation
can be perfect-unless an imperial nation-a young offset, as we should
be, of an imperial nation, we should not be perfect, unless the people
had every office open to their ambition, and unless it were known
that the really great and good men of the country could rise to the
highest position, and exercise the highest duties in it.(3)
On 1 April 1891, Sir George Grey pursued this theme by
moving that clause 2 of the draft Constitution be amended to state
that 'there shall be' a Governor-General, thus allowing different methods
for the Governor-General's selection, including election. He considered
that a person who is appointed is 'much less fitted to exercise [social
and political] functions than a governor-general chosen by the people
of the country would be'.(4) He argued that election 'opens paths of distinction
to [every citizen] if they prove themselves great and deserving men'.(5)
Sir George also argued that the people should not be
taxed in order to pay the salary of the Governor-General if they are deprived
of the opportunity of being the Governor-General themselves, or of the
right to vote to elect him.(6) He concluded that the 'great office' of
Governor-General should be 'open at all times to that man in Australia
who is deemed the greatest, and worthiest, and fittest to hold so noble
a post, and to satisfy his fellow citizens that they have wisely chosen
one who will be an honour to the whole community'.(7)
Arguments against election
Sir Samuel Griffith, who was later to become the first
Chief Justice of the High Court (1903-19), sympathised with the view expressed
by Sir George that the office of Governor-General should be open to all
Australians, but he noted, with some prescience, that this would end up
happening anyway, even if the Governor-General were to be appointed by
the monarch.(8)
Alfred Deakin, who was later to become Prime Minister
of Australia (1903-04, 1905-08 and 1909-10), responded to Sir George's
argument by noting that the position of Governor-General would not be
an office to which anyone with leadership ambitions would aspire, because
the position does not hold any independent political power. He drew a
distinction between the role of the Governor-General and that of the President
of the United States:
To make it an object of ambition, you must change
its character altogether, and make it an office like that of the President
of the United States-a high executive office in which a man can carry
out his ideas and give effect to his principles. If you do that, you
must consider his election. We should insist upon it. If he becomes
a personage in the political life of the country, his office must
be elective. We cannot afford to have in our constitution any man
exercising authority, unless he derives it from the people of Australia.
At the present time we say that the governor-general exercises no
such authority.(9)
While Deakin was arguing that it would only be necessary
to elect the Governor-General if his or her office were one in which true
authority were to be exercised, Sir John Downer argued the other side
of the coin. He considered that the mere fact of election might be sufficient
to transform the office of Governor-General into a powerful one which
would compete with the role of Prime Minister. He suggested that there
might have been some merit in a proposal to dispense with the Governor-General
and Governors altogether, as some consider them mere 'baubles', but he
would not countenance the election of the Governor-General. Sir John considered
that the very fact of election would mean that the Governor-General would
'speak with authority, and assume a dominion over the commonwealth, which
we are certainly not prepared to concede'. He concluded:
...we are not prepared to interfere with the cardinal
principle of our constitution, and that is, that the nominal head
of the government should be only the nominal head of the executive,
and not become a real, substantial, legislative force in the community.(10)
Sir George Grey's motion, which would have allowed the
election of the Governor-General, was lost by a majority of 35 to 3.
When the issue arose again at the Adelaide Constitutional
Convention of 1897, Edmund Barton, who was also subsequently Prime Minister
of Australia (1901-03) and a Justice of the High Court (1903-20), raised
the point that election of the Governor-General would make the position
partisan, and that this might lead to a conflict with the principles of
responsible government. He warned:
If we are to elect our Governor-General, and to appoint
the man who looms large in party politics in our own country, we shall
be placing in the position a man, who by necessities of the case,
and by the facts of his career, must be a partisan. I think if we
continue under the system of responsible government... and yet elect
our Governor-General-it will follow that by electing a man from one
side, we shall be electing a man who may have a strong temptation
to the thwarting of one Ministry and unfairly assisting another.(11)
Similar problems were raised by Charles Kingston. He
was concerned that election would afford the Governor or Governor-General
greater democratic legitimacy than Ministers. He argued:
The working of a system of popular election of our
Governor in connection with our responsible government would raise
many difficulties. It would be difficult to keep the Governor so elected
in his proper place, and induce him to take the advice of his constitutional
advisers with that humility which is proper in the discharge of his
vice-regal duties. He would say that his position was somewhat superior
to that of his ministers-elected by constituencies and removable by
a vote of the House of Representatives-in view of his election by
the people throughout the colony; and, under the circumstances, I
am not in favour of an elective Governor.(12)
Recent commentary
Former South Australian Premier Don Dunstan has reiterated
the point that election would make the position of Governor or Governor-General
more overtly political. He also noted that popular election is an expensive
means of selecting a head of state.(13) He stated:
I personally doubt that there are any advantages
in proceeding to hold an election. Inevitably, in an election [for]
the position of Head of State, who should be and claim to act in a
manner independent of partisan considerations..., politics would colour
the election and the public's view of and confidence in the office.
(It would also be an expensive way of making the decision.)(14)
The late Sir Garfield Barwick also concentrated upon
the 'political' nature of an elected head of state. He asked:
Can a head of state who emerges from an electoral
struggle be 'above the battle'? No matter how substantial the majority
by which he or she was elected, anyone familiar with electoral response
will realise that today's majority may wane and disappear tomorrow,
perhaps for reasons which have little logical justification. In any
case, even if the majority remains, there must always be a distinct
proportion of the population which does not favour the person chosen
and which may be ready to exploit any situation which seems likely
to discredit the successful candidate.(15)
Donald Horne, in his recent book The Coming Republic,
concentrated more on the argument that an elected president may consider
that he or she has sufficient democratic legitimacy to exercise independent
power and challenge the role of the Prime Minister. He noted:
A president who was chosen directly by the people
could have a glow of legitimacy that, in an ambitious president, would
be likely to make it irresistible to butt into what the government
was doing. A president of that kind could not be given the very great
powers of a governor-general.(16)
Horne observed that one method of dealing with this problem
is to strictly define and limit the powers of the president to ensure
that there is no opportunity for the president to stray beyond his or
her traditional and ceremonial role. However, Horne noted that there are
still legitimate arguments against the popular election of a president:
Partly because this might demean the position, and
turn it into a senselessly factionalistic battle between the established
political parties (although an outsider could always come through
and win). Partly because direct election would, inevitably, place
a president in potential confrontation with a prime minister-because
although prime ministers are elected to parliament, and depend on
an elected parliament to stay in office, they are not directly elected
by the people.(17)
Horne suggested two preferable methods of selecting a
president. The first method is to convene a Federal Assembly, comprising
the members of the House of Representatives, and an equal number of members
of the lower houses of the States and Territories, chosen on a proportional
basis. He suggested that no discussion should be undertaken at the Assembly,
and that election should be by secret ballot, requiring two-thirds majority
approval in order to reduce the dominance of party numbers. No indication
is given of who may be nominated as a candidate and how they may be nominated.
The alternative method proposed by Horne is to allow
the Commonwealth Parliament to elect the president, in such a manner as
would require cross-party support. He also noted that one method of reducing
the politicisation of the role of the president would be to make former
members of Parliament ineligible to be elected president.(18)
In October 1994, in a lecture entitled 'Reflections
on an Australian Republic', a former Governor-General, Sir Zelman
Cowen, called an elected Presidency 'an appalling outcome' and 'unacceptable'
if Australia wished to retain its current system of government.(19) On
1 June 1995, in the Williamson Community Leadership lecture, Sir Zelman
added that:
the President must not be the only directly elected
executive officer in the system, posing a potential challenge to a
Prime Minister who does not have such a base...I believe that direct
election carries an assumption that the President should have-at least
in reserve-large powers and that, I believe, is unacceptable, certainly
if, as is likely, we wish to retain an effective Westminster system.
Suggesting that popular election may not attract suitable
candidates, Sir Zelman added that a person like himself, or another former
Governor-General, Sir Ninian Stephen, 'would not have the resources or
inclination to contest such an election'.(20)
On 7 June 1995, the Prime Minister, Hon Paul Keating,
responded to the options paper prepared by the Republican Advisory Committee
which described the minimum constitutional changes necessary to create
a federal republic of Australia. In this speech, Mr Keating outlined his
Government's preferred method of appointing an Australian head of state.
Under this proposal the Australian head of state would be appointed by
a two-thirds majority of a joint sitting of both houses of the Commonwealth
Parliament, with the Prime Minister submitting a single nomination to
the Parliament. Such a process would oblige the Government to nominate
non-partisan candidates. It would require consultation with non-Government
parties to ensure that the candidate had the blessing of all the major
parties. It would avoid any possibility of disagreement between the houses
of Parliament and avoid parliamentary debate on the relative merits of
competing candidates, debate which could discourage appropriate candidates
from accepting nomination.
Mr Keating rejected the idea that the Australian head
of state should be popularly elected. He argued that if an Australian
head of state were to be elected by popular mandate, 'he or she would
inherit a basis of power that would prove to be fundamentally at odds
with our Westminster-style system of government'. He suggested that there
is a consensus that the head of state should be 'above politics'. However,
popular election would guarantee that the Australian head of state would
be a politician, as the major political parties would undoubtedly run
candidates, and these candidates would be backed by large organisations
with the necessary organisational resources and expertise to run nationwide
campaigns.(21)
In December 1996 the Leader of the Opposition, Hon Kim
Beazley, said that while the Labor Party's preferred position was a republican
model where the head of state was selected by a two-thirds majority of
federal Parliament, the party would support the decision of a joint Parliamentary
Committee set up to discuss and report on the details of constitutional
changes.(22)
Summary
The following arguments have been raised in favour of
the election of the Australian head of state:
- Election is the most appropriate method of selecting a head of state
in a democratic country.
- The position of head of state should be open to the ambition of all
Australians.
- Election is the best method of choosing the most worthy person for
the position of head of state.
The following arguments have been raised against the
election of an Australian head of state:
- Election is not appropriate for a ceremonial position which does not
involve independent political power.
- Election would make the position partisan.
- Election would be inconsistent with responsible government, and the
position of the Prime Minister and the Ministry may be threatened by
the growth in political power of the head of state which the democratic
legitimacy of election would entail.
The concerns raised by those arguing against election
of the head of state may be alleviated to some extent, by the manner in
which the head of state's role is defined and confined in the Constitution.
If the powers of the head of state were to be strictly limited and expressly
specified in the Constitution, and those powers did not allow for the
exercise of independent discretion, then the chance of a head of state
seeking to exercise increased powers based on the legitimacy of direct
election, would be diminished. If it is not considered advisable or possible
to confine the powers of the head of state, then popular election could
be replaced by Parliamentary election, tying the head of state's democratic
legitimacy to the Parliament in the same manner as the Prime Minister.
Other concerns relating to the partisan nature of the
position could be alleviated in the case of election of the head of state
by Parliament or an electoral college, if the necessary majority of approval
was raised to two-thirds or even three-quarters of those who may vote.
This would ensure some kind of cross-party consensus. In the case of popular
election this kind of consensus would be more difficult to establish.
One of the criteria of eligibility of the head of state could be that
he or she had never been a member of a State or Commonwealth Parliament,
and had not been a member of a political party for the past ten years.
Political parties could also be prohibited from nominating or supporting
particular candidates. Whether such provisions would be effective in practice
is very doubtful.
Current Australian practice
The present situation is that the Governor-General is
appointed by the Crown, in practice on the advice of Australian Ministers
of the Crown. The method of appointment was changed as a result of the
1926 and 1930 Imperial Conferences. Appointments prior to 1924 were made
by the Crown on the advice of the Crown's Ministers in the United Kingdom
(the Governor-General being also the representative or agent of the British
Government) in consultation with Australian Ministers. The Balfour Report
stated that the Governor-General should be the representative of the Crown
only, holding the same position in the administration of public affairs
in Australia as the Crown did in the United Kingdom. The 1930 report suggested
certain criteria for the future appointments of Governors-General. Since
then Governors-General have been appointed by the Crown after informal
consultation with and on the formal advice of Australian Prime Ministers.(23)
In The Truth of the Matter, Gough Whitlam, Prime
Minister from 1972 to 1975, describes how he came to choose Sir John Kerr
as Governor-General. When the previous Governor-General, Sir Paul Hasluck
(1969-1974) indicated that he would not accept an extension beyond the
customary five year period, he gave Mr Whitlam a 'handwritten list of
eight persons, all of wide experience, amongst whom he thought I might
choose a successor'. The list of persons that Sir Paul regarded as worthy
included two members of Mr Whitlam's cabinet. Mr Whitlam continued:
I shared his opinion of their worthiness. I doubt
that either would have accepted the job gladly...I approached the
youngest man on the list, who was my own first choice for the office.
He was a leading Melbourne businessman...A week later, he told me
that, for family and business reasons, he did not believe that he
could accept. Then I thought of Chief Justice Kerr, who was also on
Sir Paul Hasluck's list.
Sir John Kerr accepted the post in December 1973 and
Mr Whitlam recommended his appointment to the Queen, who was visiting
Australia, on 27 February 1974 and she agreed. Mr Whitlam then told Mr
Snedden, the Leader of the Opposition.(24) Mr Whitlam's account is consistent
with the view that the choice of Governor-General is a decision for the
Prime Minister rather than the Cabinet or the parliamentary supporters
of the government in a party meeting.
In 1993 the Republican Advisory Committee considered
the nomination process for the head of state. The Committee reported that
while some former, and serving, Governors-General have urged that the
present method of nomination by the Prime Minister be retained, most submissions
received by the Committee advocated a different process. Those who favoured
appointment of the head of state by the Parliament suggested the following
methods of nomination:
- a single nomination by the Prime Minister, reached after negotiation
between the Prime Minister and the Leader of the Opposition to ensure
that the nominee will have the requisite support of Parliament;
- single or multiple nominations made by a bipartisan nominating panel
which might be drawn from outside politics, or may consist of both politicians
and non-politicians;
- nomination by a specified number of members of Parliament.(25)
In responding to the Republican Advisory Committee's
report, Prime Minister Keating indicated that his government favoured
a single nomination made after negotiation between the leaders of the
main political parties. As an additional step to ensure that the office
of the head of state was above politics, Mr Keating proposed that serving
former parliamentarians-Commonwealth, State and Territory-be excluded
from candidature until five years had passed since they left Parliament.(26)
Since 1945 there have been four former politicians appointed
as Governor-General out of twelve holders of the office. Two of them were
Liberals (Richard Casey and Paul Hasluck) appointed by Liberal Prime Ministers,
and two of them Labor (William McKell and Bill Hayden) appointed by Labor
Prime Ministers.
Appointment
At present, the Governor-General is appointed by the
Queen, upon the advice of the Prime Minister.(27) It is argued by some
that a republic should formalise the current system by
providing that the Prime Minister shall appoint the head
of state. Such a method may be considered unacceptably partisan by many,
once the figure of a nominally independent monarch is removed from the
scene, even though its results would be no different from current practice.
Former Senator Michael Tate (ALP, Tasmania, 1978-93)
noted, in a paper distributed to members of the State and Federal Parliaments,(28)
that although there is much to be said for the current system of Prime
Ministerial patronage, there is a risk to the stability of our political
process where the Governor-General and the Prime Minister both have the
power to appoint and dismiss each other. Senator Tate suggested that the
head of state should be appointed jointly by the Speaker of the House
of Representatives and the President of the Senate. As both the Speaker
and the President are responsible to democratically elected Parliamentarians,
their choice of head of state would have to be acceptable to their respective
Houses, or they could lose office. This system would also break the circularity
of powers to appoint and dismiss, because the head of state would have
no power to appoint or dismiss the Speaker of the House or Representatives
or the President of the Senate.(29)
A proposal by Hon Tim Fischer, Deputy Prime Minister
and Leader of the National Party, put forward for consideration by a special
National Party council meeting on 1 March 1997 to discuss the Constitution,
was for the Chief Justice of the High Court to replace the Queen in the
Constitution, with the power to appoint and dismiss the head of state
on advice from the Prime Minister. Mr Fischer's constitutional model was
rejected by both the republican and monarchist movements as unworkable
and unconstitutional. Others commented that the proposal seemed at odds
with the independence of the judiciary from the political arm of government,
and indicated that the constitutional implications were more far reaching
than just the simple substitution of the Chief Justice for the monarch.(30)
In late 1997 the former Governor of Victoria, Hon Richard
McGarvie, proposed a Constitutional Council comprising three eminent Australians
automatically selected by a constitutional formula, to appoint (and if
necessary dismiss) the head of state on prime ministerial advice. According
to the 'McGarvie model', the monarch's remaining powers would be transferred
to the governor-general, who will become the actual, instead of the de
facto head of state.(31)
Lottery
In several of the city-states of Ancient Greece, public
officials were chosen by lot, in a system known as sortition. This system
was considered to be more consistent with the principle of equality of
citizens,(32) than elections which may favour those from privileged backgrounds.
Only those who nominated themselves as candidates could be selected in
the lottery. While representative positions were filled by lot, other
positions, such as military leaders, which required special skills, were
chosen by election in order to ensure that the best person was chosen
for the position. Executive functions were also divided amongst annual
boards of ten members who were chosen by lot, as a means of separating
powers and preventing tyranny.
In Australia, lottery methods have been advocated as
a means of reducing the partisan nature of choosing a head of state, rather
than as the implementation of principles of equality. W.C. Wentworth,
a former Liberal Minister, has suggested that one method of making the
appointment of the head of state free from political bias would be to
require the Prime Minister and Leader of the Opposition to nominate a
panel of four or five people who would be acceptable to them both, and
to make the final selection by lot. He observed that to ensure that the
lottery is not tainted by fraud, a panel of ecclesiastical delegates could
preside over it.(33)
One of the issues considered by the Republican Advisory
Committee in 1993 was whether Australia needs a head of state. Almost
all nations have a public official who fulfils the role of head of state.
In some, such as the United States and South Africa, the roles of head
of state and head of government are combined. However most, including
Australia, have a head of state who fulfils a largely ceremonial and representational
role, leaving the business of administering the Government to an elected
official, the head of government. The Australian Capital Territory is
an example of a form of government without a 'head of state' equivalent
which has weathered political crisis and change of government without
apparent difficulty.(34)
The report of the Republican Advisory Committee identified
three categories of functions performed by the Governor-General-ceremonial,
governmental, and that of 'constitutional umpire'. Several submissions
to the Committee argued that the ceremonial and governmental functions
could readily be fulfilled by other officials or through other constitutional
arrangements. The third area of the Governor-General's responsibility,
which is to act as a 'constitutional umpire' in times of crisis, could
not readily be fulfilled by another official. The Committee suggested
that the only practical way of dealing with this area would be to amend
the Constitution so as to remove any need for such a discretion to be
exercised.(35)
The Committee reported that it was impressed by the almost
complete lack of support for dispensing with a head of state. A separate
head of state was seen as part of the checks and balances inherent in
the system of government, preventing too great an accumulation of power,
or even prestige, in the hands of the Prime Minister or the Executive.
A separate head of state was valued for his or her distance from politics,
enabling certain civic duties to be kept free of any political taint;
who can, in the words of former Governor-General, Sir Ninian Stephen,
'represent...the Australian nation to the people of Australia'.(36)
Popular election of a
head of state
Popular election of the head of state is a feature usually
associated with a presidential system, where the head of state is also
the head of government, and there is a complete separation of powers between
the executive and the legislature. The election of the head of state under
this system is essential to democratic government, as the head of state
exercises significant executive powers.
However, in some countries where executive power is shared
between the head of state and the head of government, or where the role
of the head of state is primarily ceremonial, the head of state is still
elected by universal suffrage. Such countries include Austria, Finland,
France, Ireland, Portugal, Sri Lanka and Zambia.
One of the problems involved in popular election is that
where there are several candidates, it may be difficult to obtain an absolute
majority in favour of one candidate. This problem may be resolved in several
ways.
In Austria, France, and Portugal, if no candidate achieves
an absolute majority of votes cast, a second ballot is held between the
two candidates who received the highest number of votes in the earlier
poll.(38) In Austria, it is possible for each of the two groups of nominators
who put up the two candidates, to nominate another person in place of
the original candidate for the second ballot. Also in Austria, if only
one candidate runs in the election, the election must still be carried
out in the form of a referendum.(39)
Another method of achieving majority approval is through
the allocation of voting preferences. In Ireland the voting system is
one of proportional representation by means of a single transferable vote.(40)
The Australian electorate is familiar with the preferential system and
such a method of election would probably be attractive to most voters.
In the Philippines an absolute majority is not necessary.
The candidate with the highest number of votes is elected President. However,
if two or more candidates all receive the same highest number of votes
cast, then the candidate elected by a majority of the members of both
Houses of the Congress, voting separately, becomes President.(41)
Election of a head of
state by an electoral college
In Germany, India, Indonesia and Italy, the President
is elected by an electoral college comprising members of Parliament of
the central government and of the state or regional governments.
In Germany, the Federal President is elected by a Federal
Convention, consisting of the members of the Bundestag (the Lower House
of the Federal Parliament) and an equal number of members elected by Land
(State) Parliaments. In order to be elected, a candidate for President
must receive a majority of votes. If no candidate has received a majority
after two ballots, the candidate who receives the largest number of votes
in the third ballot is elected.(42)
In India the electoral college comprises the members
of both Houses of the Parliament and the legislative assemblies of the
States. Voting is weighted by a formula to allow for the population differences
between the States.(43)
In Indonesia the President is elected by a majority vote
of the Majelis Permusyawaratan Rakyat (the People's Consultative Assembly),
which comprises members of the Dewan Perwakilan Rakyat (the House of Representatives)
and delegates of regional territories and such other groups as are prescribed
by statute.(44)
In Italy the President is elected by an electoral college
comprising both Houses of Parliament and 58 regional representatives.
Each region has three representatives, and the Valle d'Aosta has one.
The election takes place by secret ballot, and a majority of two thirds
of the votes is required in order to elect the President. A series of
ballots may be held to achieve this special majority, but after the third
ballot, an absolute majority is sufficient.(45)
In South Africa, under the previous 'apartheid' Constitution,
the President was elected by an electoral college comprising fifty members
from the House of Assembly (representing whites), twenty-five members
of the House of Representatives (representing coloureds) and thirteen
members from the House of Delegates (representing Indians), and the Chief
Justice. A candidate had to achieve a majority of votes in order to be
elected. If the majority was not achieved in the first ballot, further
ballots were held with the person receiving the least number of votes
eliminated after each ballot, until a candidate received an absolute majority
of votes.(46)
In the United States the electoral college is comprised
of members directly elected by the people of the States. The number of
members representing a State is equal to the combined number of Senators
and Members of the House of Representatives who represent the State.(47)
Once elected, these members are in most cases required to vote for the
candidate who has won the majority of support in their State.
Collective heads of state
In Switzerland executive power rests with the seven members
of the Federal Council.(48) The Federal Council is elected by a joint
sitting of the two Houses of Parliament. Not more than one member of the
Federal Council may come from the same Canton. Each year the Federal Council
elects from its number, effectively on a rotation basis, a 'President'.
The title 'President' is largely ceremonial, as the executive power is
held by the Federal Council collectively.
In the former Yugoslavia, until 1992, there was a collective
Presidency consisting of nine members, eight of whom were elected by the
legislatures of the republics and autonomous provinces, and one of whom
represented the League of Communists.(49) A President and Vice President
were elected from their number annually, in what was effectively a rotation
between the various jurisdictions. The constitutional power rested with
the collective.
In Malaysia, the King (the Yang di-Pertuan Agong) is
elected every five years by the Conference of Rulers, from amongst its
members. The Conference of Rulers is comprised of the hereditary rulers
of nine of the thirteen States of Malaysia. The Conference of Rulers may
also remove the Yang di-Pertuan Agong from office.(50)
Election of the head
of state by Parliament
The head of state is elected by the Parliament in Greece,
Israel, Malta, Singapore, South Africa, and was formerly elected in this
manner in Zimbabwe.
In Greece the President is elected by the unicameral
Parliament by secret ballot. The majority required is two-thirds of the
votes. If this is not achieved in the first ballot, a second ballot must
be held after five days. If the majority of two-thirds is not achieved
at the second ballot, a third ballot is to be held after 5 days at which
the required majority is three-fifths of the votes cast. If this majority
is not achieved Parliament is dissolved and an election held. After the
election, a further ballot is to be held. If a majority of three-fifths
is not achieved, another ballot must be held after five days at which
the candidate who receives an absolute majority will be elected. If this
majority is not achieved, a sixth ballot will be held after five days
which is restricted to the two candidates who achieved the highest votes
in the last ballot. The candidate who achieves the highest number of votes
is elected.(51)
In Israel the President is elected by the Knesset by
secret ballot. If an absolute majority is not achieved by a candidate
in the first ballot, further ballots will be held eliminating the candidate
with the smallest number of votes each time, until an absolute majority
is obtained.(52)
In South Africa, under the 1996 Constitution, the President
is elected by the National Assembly from among its members by secret ballot.(53)
If no candidate receives an absolute majority of the votes, the candidate
who receives the lowest number of votes is eliminated and further votes
are taken until an absolute majority is achieved by one candidate.(54)
Nomination procedures
Many countries where a President is elected do not set
out the nomination procedures in their Constitutions, however the following
countries provide a number of different methods.
In Ireland a candidate for President must be nominated
by not less than twenty members of one of the Houses of the Oireachtas
or by the Councils of not less than four administrative Counties. Previous
Presidents may nominate themselves.(55)
In Finland the right to nominate a candidate is vested
in registered political parties which have representation in the Parliament.
A person may also be nominated by a group of 20 000 people who are
entitled to vote at presidential elections.(56)
In Sri Lanka a person may be nominated by a recognised
political party, or if he or she has been an elected member of the legislature,
he or she may be nominated by any registered elector or other political
party.(57)
In Portugal the nomination of a candidate for President
must be sponsored by no less than 7500 and no more than 15 000 citizens
who are entitled to vote.(58) In Iceland, due to a smaller population,
a Presidential candidate must be nominated by not less than 1500 voters
and not more than 3000. There is also a provision that allows further
laws to be passed regarding the method of nomination, including a law
requiring the number of voters nominating a candidate to be in proportion
to the number of voters in each quarter of the country.(59)
Nominations for election
by an electoral college
In South Africa, under the former Constitution, nominations
were called for at the beginning of the meeting of the electoral college.
A nomination had to be signed by two members of the electoral college,
and the nominee.(60)
Nominations for election
by Parliament
In Israel, any ten or more members of the Knesset may
propose a candidate. A member may not nominate more than one candidate.(61)
Citizenship, place of
birth, residence and right to vote
The most common qualification is that a person must be
a citizen of the country in order to become the head of state of that
country. In some countries the qualification of citizenship is further
confined to certain categories of citizens.
In Zimbabwe a person can only be elected President if
he or she is a citizen of Zimbabwe by birth or descent.(62) Similarly,
in Greece only a person who is a descendant of a Greek father and has
been a Greek citizen for at least five years, is eligible to be President.(63)
In Portugal, the President must be 'Portuguese by origin'.(64)
In Indonesia,(65) Finland,(66) the United States of America(67)
and the Philippines(68) a person must be a native-born citizen in order
to be elected President.
Some countries require in addition to citizenship, that
a candidate for President must have been resident in the country for a
certain period of time. In both Zimbabwe and Israel, the President can
only be selected from residents of those respective countries.(69) In
the United States, in addition to being born a citizen, a person must
also have been resident in the United States for fourteen years.(70) In
the Philippines, a person is not eligible to be President unless he or
she has been a resident of the Philippines for at least ten years immediately
preceding the election.(71)
Another variation on citizenship is the requirement that
only people who are entitled to vote in the Presidential elections, may
become President. In Italy, it is a qualification for the Presidency that
a candidate must be a citizen enjoying civil and political rights.(72)
In Kenya a candidate for President must be registered as a voter for elections
of the National Assembly.(73) In Germany, a candidate for President must
be entitled to vote at Bundestag elections.(74) In Greece, a person must
be entitled to vote in Parliamentary elections,(75) and in Austria a person
must have the right to vote for the National Council,(76) in order to
become President. In the Philippines,(77) Portugal(78) and Iceland(79)
a person must also be eligible to vote before he or she can become President.
In Switzerland, there is the further rule that a person
is not eligible to be a member of the Federal Council if he or she is
deprived of active rights of citizenship by the Canton in which he or
she resides.(80)
Personal qualities
Most countries state that the President should be a person
of integrity, good character and reputation. Singapore is specific in
requiring that the President has had at least three years experience in
a responsible, senior position in either the public or private sector
which would provide the experience and ability in administering and managing
financial affairs necessary to carry out the functions and duties of the
office effectively.(81)
Age
Another very common restriction on Presidency is age.
In some countries a minimum age is merely set by the requirement that
the President has the right to vote. However, many countries set a higher
minimum age for their President. Countries such as Ireland, Kenya, Iceland,
India, Portugal and Austria require their President to be thirty-five
years old or older. Countries such as Germany, Greece, the Philippines
and Zimbabwe set the minimum age at forty years. Italy has a higher minimum
age of 50 years.
Exclusion of people who
have held particular positions
In Malta, the President must not hold or have held the
office of Chief Justice or of Justice of any of the Superior Courts.(82)
In Austria, 'members of the ruling houses or of such
families which formerly ruled', are prohibited from being President.(83)
Offices of profit and
other incompatible offices
Most countries appear to place specific restrictions
on the activities of the President during his or her term of office. Most
prohibit the President from simultaneously holding a political position
as a member of Parliament, or a public office of profit. Some go further
and prohibit the President from engaging in any sort of trade, profession
or other business activity.
In South Africa where the President is elected by the
National Assembly from among its members. the President then ceases to
be a member of the National Assembly.(84) A similar position is taken
in Ireland, where if a member of either House of the Oireachtas is elected
President, his or her seat is automatically deemed vacant. The President
may not hold any other office or position of emolument.(85)
In Greece it is expressly stated in the Constitution
that the office of President is incompatible with any other office, position
or function.(86) The same provision applies in Italy.(87)
In Germany, the Basic Law(88) is even more specific.
It states that the President may not be a member of the government or
a legislative body of the federation or of a state. Nor may the President
hold any other salaried office, or engage in a trade or occupation, or
practice a profession or belong to the management or the board of directors
of an enterprise carried on for profit.(89) The Constitution of Switzerland
also states that members of the Federal Council may not hold any other
office, nor carry on any other profession or industry.(90)
In the Philippines the Constitution is now extremely
detailed upon this matter. It provides that the President shall not hold
any other office or employment during his or her term of office. The President
shall not directly or indirectly practice any other profession, participate
in any business or be financially interested in any contract with, or
any franchise or special privilege granted by, the Government or any subdivision,
agency, or instrumentality thereof, including government owned or controlled
corporations or their subsidiaries. There is also a provision which restricts
the spouse of the President or relatives within the fourth civil degree
of the President, from being appointed to certain government positions.(91)
In Malaysia, where the head of state is an hereditary
ruler elected from the Conference of Rulers, the Constitution requires
that he and his partner, shall not hold any appointment carrying remuneration,
and shall not actively engage in any commercial enterprise or receive
any emoluments of any kind accruing to him as the ruler of his particular
State.(92)
Former British colonies have adapted the restriction
on members of Parliament being elected while holding an 'office of profit
under the crown,' to the role of the President. In India the President
must not hold any office of profit under the Government of India or of
a State, or under any local or other authority subject to the control
of these governments.(93) In Singapore, the President may not hold any
office of profit and may not actively engage in any commercial enterprise.(94)
In Sri Lanka the President may not hold any other office or place of profit
whatsoever, or any office recognised by the Constitution.(95)
The most common length of a term of office for a head
of state is five years. This is the term of office for the Presidents
of Greece, Israel, Malta, Portugal, South Korea, Germany, India, Indonesia,
and the head of state of Malaysia. Six year terms are held by the Presidents
of Zimbabwe, Finland, the Philippines, Singapore, Sri Lanka and Austria.
Seven year terms apply in Ireland, France and Italy. In the United States
the term of office for the President is four years, and in South Africa
the term of office of the President extends for the term of the National
Assembly which elected him or her.
In several countries a person may only be elected President
for a restricted number of consecutive terms. In Ireland, the United States,
Sri Lanka, Israel, Austria, Portugal, Greece and Germany, a President
may be elected for a maximum of two consecutive terms. In the Philippines
the President is not eligible at all for re-election.
There are several methods by which the head of state
may be removed from office. In some jurisdictions it is solely a matter
for Parliament or the electoral college, in others the process involves
the Parliament and the courts, and in others a vote of the people is required.
Removal by the Parliament
or the electoral college
In Singapore and South Africa, the President may be removed
from office pursuant to a resolution of Parliament supported by the votes
of not less that two-thirds of the total number of members of the Parliament.(96)
In Malta, the President may also be removed by resolution of the Parliament,
on the grounds of inability to perform the functions of President, or
on the grounds of misbehaviour.(97)
In Israel, the President may be removed from office by
the Knesset if it finds that 'he is unworthy of his office owing to conduct
unbecoming his status as President'. Such a complaint must be brought
before the House Committee by at least 20 members of the Knesset and passed
by three-quarters of the Committee before it may be put to the Knesset.
A resolution to remove the President from office must be passed by a majority
of three-quarters of the Knesset in order to succeed.(98)
In bicameral Parliaments such as Ireland and India, the
process of removing the President requires each House to play a different
role. In both countries a charge of misbehaviour may be brought in either
House of the Parliament, and must be made in writing by a certain number
of members. The resolution for impeachment must be passed in that House
by two-thirds of the total number of members. The other House then investigates
the charge. If the charge is sustained, and a resolution for impeachment
is passed by an absolute majority of two-thirds in the investigating House,
then the President is removed from office.(99)
Similarly, in the Philippines, each House of the Congress
plays a different role. The President may be impeached for culpable violation
of the Constitution, treason, bribery, graft or corruption, other high
crimes or betrayal of public trust. A Member of the House of Representatives,
or a citizen (with the endorsement of a Member), may file a resolution
for impeachment with the House of Representatives. The resolution is then
referred to a Committee. If the majority of the Committee so vote, the
report of the Committee is referred to the House of Representatives. If
a third of the members of the House vote for impeachment, a trial takes
place in the Senate. The Chief Justice of the Supreme Court presides over
the trial, but cannot vote. The President may be impeached by a vote of
two-thirds of the Senate.(100) This system is modelled on the United States
impeachment procedure, which also requires the trial to take place in
the Senate with the Chief Justice presiding.(101)
In South Africa under the previous Constitution, it was
the electoral college, which elected the President, which also impeached
him or her by the vote of a majority of members. However, before the electoral
college could be reconvened, a petition signed by not less than half of
the members of a House of the Parliament must require a parliamentary
committee to be established to investigate the allegations of misconduct.
After considering the committee's report, the House of Parliament could
then call for the electoral college to be reconvened to consider the impeachment
of the President.(102)
Removal by the Parliament
and the courts
In Germany both the Parliament and the Constitutional
Court is involved in the removal of a President from office. The President
may be impeached for wilful violation of the Basic Law or for any other
federal law. The motion for impeachment must be brought by at least one-quarter
of the members of the Bundestag or the Bundesrat, and must be passed by
a majority of two-thirds of the Bundestag or Bundesrat. To succeed, it
must then be prosecuted before the Federal Constitutional Court. If the
Court finds the President guilty, it may declare him or her to have forfeited
the office.(103)
In Sri Lanka the Parliament and the Courts also play
a role in the impeachment of the President. The President may be removed
from office if he or she is guilty of intentional violation of the Constitution,
treason, bribery, misconduct or corruption involving the abuse of the
powers of the office, or any offence, under any law, involving moral turpitude.
Any member of Parliament may give notice of a resolution making such allegations.
It must be signed by not less than two-thirds of the members of Parliament
(or not less than half if the Speaker is satisfied that the allegations
merit inquiry). If the resolution is passed by not less than two-thirds
of the total members of the Parliament, the allegations are referred to
the Supreme Court for inquiry and report. If the Supreme Court reports
that the allegations are sustained, the Parliament may, by resolution
passed by not less than two-thirds of all the members, remove the President
from office.(104)
Removal by the Parliament
and the people
In Iceland, the Constitution provides that the President
shall cease to hold office if this course is approved by a plebiscite
held in accordance with a resolution adopted by three-quarters of the
members of the United Althing. If the resolution is defeated at the plebiscite,
the Althing shall be dissolved and a new election held.(105)
In Austria, the President may be removed by a people's
referendum. Before the referendum may be implemented, the National Council
must vote by a majority of two-thirds to request the Federal Chancellor
to convene the Federal Assembly. The result of the referendum is only
implemented if the Federal Assembly so decides.(106) There is also a procedure
for an indictment to be brought against the President where he or she
has violated the Federal Constitution. The Constitutional Court may declare
the forfeiture of the office.(107)
The adoption of a method of choosing a head of state,
as noted in the introduction to this paper, should be affected by consideration
of the powers and role of the head of state, and the political system
in which that head of state must operate. This paper has raised a number
of methods of choosing a head of state which may be suited to various
different proposals for a republic, but no recommendation can be made
of the most suitable method until these other issues are resolved.
- See comments made by Sir John Downer, Edmund Barton and Charles Kingston,
discussed below.
- Such countries include, Belgium, Bhutan, Brunei, Denmark, Japan, Jordan,
Kuwait, Lesotho, Liechtenstein, Luxembourg, Malaysia, Monaco, Morocco,
Nepal, Netherlands, Norway, Oman, Saudi-Arabia, Spain, Swaziland, Sweden,
Thailand, Tonga, United Kingdom (including Commonwealth countries such
as Australia, Canada and New Zealand) and Western Samoa.
- Official Record of the Debates of the Australasian
Federal Convention Sydney, 9 March 1891, 138.
- Official Record of the Debates of the Australasian
Federal Convention Sydney, 1 April 1891, 561.
- Official Record of the Debates of the Australasian Federal Convention
Sydney, 1 April 1891, 563.
- Official Record of the Debates of the Australasian Federal Convention
Sydney, 1 April 1891, 563.
- Official Record of the Debates of the Australasian Federal Convention
Sydney, 1 April 1891, 563.
- Official Record of the Debates of the Australasian Federal Convention
Sydney, 1 April 1891, 566-67
- Official Record of the Debates of the Australasian
Federal Convention Sydney, 1 April 1891,
570-71.
- Official Record of the Debates of the Australasian
Federal Convention Sydney, 1 April 1891, 572.
- Official Record of the Debates of the Australasian Federal Convention
Adelaide, 23 March 1897, 24.
- Official Record of the Debates of the Australasian Federal Convention
Adelaide, 20 April 1897, 996-67.
- The issue of cost is not dealt with in this paper.
- Dunstan, D., 'The State, the Governors and the Crown', in Dutton,
G. (ed.), Republican Australia?, Sun Books, Melbourne, 1977,
209.
- Barwick, G., The Monarchy in an Independent Australia, Sir
Robert Menzies Lecture Trust, 1982, 18.
- Horne, D., The Coming Republic, Sydney, Sun Australia, 1992,
112.
- Horne, D., The Coming Republic, Sydney, Sun Australia, 1992,
112.
- Horne, D., The Coming Republic, Sydney, Sun Australia, 1992,
113.
- Cowen, Z., Reflections on an Australian republic, 1994 Beanland
lecture delivered at Victoria University of Technology, Footscray Campus,
24 October 1994, 25.
- Cowen, Z., Leadership in Australia: the role of the Head of State,
Williamson Community Leadership lecture, Melbourne, 31 May 1995, 16.
- Australia. House of Representatives, Debates, 7 June 1995,
1434-1441.
- Canberra Times, 5 December 1996, 1-2.
- House of Representatives Practice, 3rd ed, edited by L.M. Barlin,
AGPS, Canberra, 1997, 2.
- Whitlam, E.G., The Truth of the Matter, Penguin Books, Melbourne,
1979, 17-27.
- Republican Advisory Committee, An Australian Republic: the options,
Volume 1, The report, AGPS, Canberra, 1993, 68-69.
- Australia, House of Representatives, Debates, 7 June 1995,
1439.
- Section 2 of the Constitution provides that the Governor-General
is appointed by the Queen, although it is a well established constitutional
convention that the Queen acts in this matter upon the advice of the
Australian Prime Minister.
- Reported in The Australian, 4 May 1993 and in The Age,
6 July 1993.
- The power of the head of state to dissolve the Parliament need not
terminate the positions of the Presiding Officers, who could remain
in their positions until a new Parliament meets and elects or re-elects
its Presiding Officers.
- Australian, 3 January 1997, H2.
- The internet site [http://www.chilli.net.au/~mcgarvie] provides details
of the model. The proposal has also been discussed in press articles
including The Adelaide Review, December 1997, 20-21; and Canberra
Times, 1 January 1998, 7.
- Citizenship did not extend to slaves or others considered less than
'equal'.
- Wentworth, W.C., 'Australia and the Monarchy-A Liberal View' in Dutton,
G. (ed.), Republican Australia? Sun Books, Melbourne, 1977, 128.
- Republican Advisory Committee, op. cit., 47.
- ibid., 49.
- ibid., 49-50.
- The following comparison is based upon national Constitutions as found
in Blaustein and Flanz, Constitutions of the Countries of the World
(a service which is periodically updated). Some of these Constitutions
may have been subsequently amended. This paper does not purport to be
a comprehensive statement of the current law in these countries. The
aim of the paper is to give examples of different systems for the selection
of a head of state.
- Federal Constitutional Law of Austria: art. 60(2); Constitution of
France: art. 7; Constitution of the Portuguese Republic: art. 129
- Federal Constitutional Law of Austria, art. 60(1) and 60(2).
- Constitution of Ireland, art. 12(2).
- Constitution of the Republic of the Philippines, art. 7(4).
- The Basic Law of Germany, art. 54.
- Constitution of India, ss. 54 and 55.
- Constitution of the Republic of Indonesia, art. 2(1).
- Constitution of Italy, art. 83.
- Constitution of the Republic of South Africa, ss. 7 and 8.
- Constitution of the United States, 12th amendment.
- Federal Constitution of the Swiss Confederation, art. 95.
- Constitution of the Socialist Federal Republic of Yugoslavia, arts.
313 and 324.
- Federal Constitution of Malaysia, art. 32.
- Constitution of Greece, art. 32.
- Basic Law of Israel: The President of the State, arts. 7 and 8.
- Constitution of the Republic of South Africa, 1996, s.86(1).
- ibid., Schedule 3 Part A ss. 6 & 7.
- Constitution of Ireland, art. 12(4).
- Constitution Act of Finland, art. 23a.
- Constitution of the Democratic Socialist Republic of Sri Lanka, s.
31.
- Constitution of the Portuguese Republic, art. 127.
- Constitution of Iceland, art. 5.
- Constitution of the Republic of South Africa, s. 8.
- Basic Law of Israel: The President of the State, art. 6.
- Constitution of Zimbabwe, s. 28(1).
- Constitution of Greece, art. 31.
- Constitution of the Portuguese Republic, art. 125.
- Constitution of the Republic of Indonesia, art. 6(1).
- Constitution Act of Finland, art. 23.
- Constitution of the United States, art. 2(1).
- Constitution of the Republic of the Philippines, art. 7.
- Constitution of Zimbabwe, s. 28; Basic Law of Israel: The President
of the State, art. 4.
- Constitution of the United States, art. 2(1).
- Constitution of the Republic of the Philippines, art. 7.
- Constitution of Italy, art. 84.
- Constitution of Kenya, s. 5(2).
- Basic Law of Germany, art. 54(1).
- Constitution of Greece, art. 31.
- Federal Constitutional Law of Austria, art. 60(3).
- Constitution of the Republic of the Philippines, art. 7(2).
- Constitution of the Portuguese Republic, art. 125.
- Constitution of Iceland, art. 4.
- Federal Constitution of the Swiss Confederation, arts. 96 and 74.
- Constitution of Singapore, art. 19(2).
- Constitution of Malta, s. 48(2).
- Federal Constitutional Law of Austria, art. 60(3).
- Constitution of the Republic of South Africa, s. 86(1) and s. 87.
- Constitution of Ireland, art. 12(6).
- Constitution of Greece, art. 30(2).
- Constitution of Italy, art. 84.
- Grundgesetz fur die Bundesrepublik Deutschland. Literally 'fundamental
law' or constitution. Constitutions of the Countries of the World,
edited by Blaustein and Flanz uses the term 'Basic Law' as its English
translation.
- Basic Law of Germany, art. 55.
- Federal Constitution of the Swiss Confederation, art. 97.
- Constitution of the Republic of the Philippines, art. 7(13).
- Federal Constitution of Malaysia, s. 34.
- Constitution of India, ss. 58-59.
- Constitution of Singapore, art. 19(3).
- Constitution of the Democratic Socialist Republic of Sri Lanka, art.
32(2).
- Constitution of Singapore, art. 22L(3-7); Constitution of South Africa,
s. 89.
- Constitution of Malta, s. 48(3).
- Basic Law of Israel: The President of the State, art. 20.
- Constitution of Ireland, art. 12(10); and Constitution of India, s.
61.
- Constitution of the Republic of the Philippines, art. 11(2 and 3).
- Constitution of the United States, art. 1(3).
- Constitution of the Republic of South Africa, s. 9(3).
- Basic Law of Germany, art. 61.
- Constitution of the Democratic Socialist Republic of Sri Lanka, art.
38(2).
- Constitution of Iceland, art. 11.
- Federal Constitutional Law of Austria, art. 60(6).
- Federal Constitutional Law of Austria, art. 142.
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