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Map: Legal Mechanisms for Removing a Head of State for Incapacity (PDF, 292KB)

Jurisdictions Surveyed: Argentina | Azerbaijan | Egypt | Estonia | Finland | France | Guyana | Indonesia | Italy | Liberia | Mexico | Nicaragua | Nigeria | Portugal | Russian Federation | United Kingdom | Vietnam

Comparative Summary

Rules applicable to the removal of officials who hold real executive powers differ depending on the type of government system applicable in each country. In parliamentary systems, prime ministers are typically elected based on their party’s proportional representation in the parliament. They may be removed by internal party proceedings or based on parliamentary decisions of nonconfidence.

In presidential systems, the chief executive is typically elected directly. Challenges exist in such systems regarding the means to ensure that elected officials will not be removed from office based on unsubstantiated claims of mental or physical incapacity driven by political motivations. Such means include the adoption of specific criteria and evidentiary requirements under the laws of several countries for proof of incapacity to fulfill the duties of office. Some countries require a judicial determination of incapacity by their respective constitutional or supreme courts, where others have instituted parliamentary or nonpartisan procedures, as allowable under their laws.  

The countries surveyed also differed in regard to the order of succession in the event of a president’s incapacity. While some countries allow for succession to take place until the end of the presidential term, others provide for early elections and reduced presidential authority for interim presidents.

I. Introduction

This report analyzes the legal mechanisms for temporary or permanent removal of heads of state on the ground of incapacity. In this context, “head of state” has been interpreted as the person who holds the highest position in a national government and who has real executive powers, excluding ceremonial positions such as those of monarchs. Among others, the report identifies ways by which a determination of incapacity may be made, procedures for removal, and rules of succession in cases where removal is authorized.  

Removal proceedings in parliamentary systems appear to differ from those applicable to presidential systems where the government’s chief executive is elected by the voters.

II. Parliamentary Systems

In this report, the term “parliamentary systems” will refer to those where members of the executive are typically drawn from the legislature. These include systems “in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government, its leader becoming prime minister or chancellor. Executive functions are exercised by members of the parliament appointed by the prime minister to the cabinet.”[1]

In parliamentary systems such as the United Kingdom, prime ministers (PMs) lead the government and are typically elected not individually but based on their party gaining the most seats in the parliament. They may be removed by internal party proceedings or based on a parliamentary decision of nonconfidence.

Estonia has a parliamentary type of government system where the president is elected by the Riigikogu (parliament). The president serves as the head of state and the supreme commander of national defense of Estonia. Although the procedure for removal of the president based on incapacity involves a determination of incapacity by the Supreme Court, ultimately, the parliament has the power to elect a new president of the republic to replace the one removed.

Similarly, in Vietnam, the president is elected by the national assembly and may be removed by that body based on any reason, including incapacity.

Under Italy’s parliamentary system, the president of the Council of Ministers holds executive power, while the president of the republic is considered the head of state. Both officials are elected by a parliamentary majority, and their tenure depends on parliamentary confidence, which may be revoked at any time. Similar to a vote of no confidence, permanent incapacity may be determined based on a parliamentary majority vote and will lead to an election.

In Finland’s parliamentary system, the PM is formally appointed by the president, who is elected through popular election. The president will appoint a PM based on an agreement reached by the political parties represented in the parliament.

The Finnish PM is the head of the cabinet and the executive government. The PM’s tenure must be supported by a majority in parliament, enabling the PM’s removal by a vote of nonconfidence in the parliament. The Finnish president’s removal is based on the PM’s determination that the president is permanently unable to execute the presidential duties, followed by a general presidential election. The president’s removal, however, will not affect the tenure of the cabinet or the PM in the absence of a parliamentary vote of no confidence.

III. Presidential Systems

Unlike parliamentary systems of government, where members of the executive are typically drawn from the legislature, presidential systems in this report refers to systems that “maintain a clear division of power between the two branches. In presidential systems, the bulk, if not all the executive power vests in the single person of the president.”[2]

Removal procedures were identified in a number of countries surveyed, including Argentina, Azerbaijan, Egypt, France, Guyana, Indonesia, Italy, Liberia, Nicaragua, Nigeria, and Portugal. In Russia, these procedures are not prescribed by law, although they were the subject of a rejected legislative proposal and of judicial interpretation.  

A. Criteria and Proof of Incapacity

Physical or mental incapacity, “stable inability because of health reasons,” “complete inability,” or general “impediment” (hereafter incapacity) to carry out presidential duties are some of the terms used as criteria for removal in the countries surveyed. Definitions for such criteria were located in the laws of a number of countries.   

Egypt’s law defines mental and psychological disability for the purpose of removal as an imbalance of any of the psychological or mental functions to a degree that limits an individual's adaptation to his or her social environment. While mental disability under general Egyptian law is to be determined by a psychiatrist, neither the Egyptian constitution nor the law on the exercise of political rights provides identification of who has the authority to determine that a president’s condition meets the criteria.

Interpreting Russia’s constitutional requirement of “stable inability because of health reasons,” in 2000, the Constitutional Court of the Russian Federation clarified that such inability applies to a “permanent irrevocable physical or psychiatric dysfunction of the body, which does not allow the President to make decisions required for performing his Constitutional duties.”[3] Another Constitutional Court ruling explained that this definition should also include the inability of a president to voluntarily delegate the presidential duties to another government official.

A determination of incapacity under the laws of Azerbaijan, Estonia,[4] and Portugal requires a decision by the constitutional or Supreme Court, as relevant. Incapacity in Azerbaijan and Estonia is based on a finding of a “complete inability . . .  due to illness” or “an obvious incapacity to perform . . .  due to health reasons.”  While the laws of these countries do not specify what type of evidence must be considered by the courts, a decision of incapacity by the constitutional court of Portugal requires the submission of a medical report by a panel of three medical experts who are appointed by that court.

A medical report is similarly a requirement under Nigeria’s law in support of a decision by a two-thirds majority of all the members of the executive council of the federation “that . . .  the President . . .  is suffering from such infirmity of body or mind as renders him permanently incapable of discharging the functions of his office.” The medical panel must include the personal physician of the president as well as four others appointed by the president of the senate who, in the opinion of the president of the senate, have “attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted. . . . ” 

As in Nigeria, the law of Guyana requires that removal based on presidential incapacity rely on a report issued by a medical board of at least three qualified medical practitioners. To address concerns about politically motivated grounds for submission of a motion for the establishment of a medical board, it is required that the motion be supported by the majority of the National Assembly’s members whose names appeared on the same candidates’ list with the president’s in the prior election.

B. Removal Procedures

Removal procedures are not always expressly prescribed by law, even in countries where incapacity is recognized. For example, under the Constitution of the Russian Federation, a president may be removed based on a determination of “stable inability due to health reasons.” Neither a Constitutional Court decision nor current Russian legislation regulates the procedure under which a president may be forced to stop exercising presidential power. It is not clear, therefore, who can initiate the removal of a president from power or how to determine the condition of a president’s health.

Three types of procedures for removal based on a determination of incapacity were identified in other presidential systems surveyed:

1. Court Determinations of Incapacity

As mentioned above, some countries’ removal procedures involve judicial determinations. Removal of the president in Azerbaijan, for example, requires the National Assembly to request a decision by the constitutional court of that country. A determination of presidential incapacity requires at least six of the nine judges of the court to so find. A determination of incapacity results in the president being considered to have left the position before the end of the term, and a new election must be held within 60 days. 

France’s law requires the cabinet to ask the Conseil constitutionnel (Constitutional Council), France’s high court for constitutional questions, to certify whether a situation of vacancy or impediment exists.  The Constitutional Council’s ruling on such a question must be supported by an absolute majority of its members. If the vacancy or impediment is permanent, elections for a new president must generally be organized at least 20 days but no more than 35 days after the start of the vacancy or the declaration of impediment. 

In Portugal, the attorney general must submit a request to the constitutional court for a declaration of incapacity. The request must be accompanied by relevant evidence. Upon receipt of the request the court will appoint a panel of three medical experts. The panel must present a report on the status of the president within two days of its appointment. The court will make a decision on the president’s incapacity in a plenary meeting the day after the medical report is presented. The president of the Assembly of the Republic should be notified of the decision and will immediately assume the functions of interim president of the republic.

2. Parliamentary Procedures for Removal

In Egypt, the Council of Representatives (parliament) has the authority to announce a presidential vacancy and notify the national elections commission that the president is incapable of resuming presidential powers permanently.

Under the laws in both Nicaragua and Liberia, a declaration of a president’s incapacity requires approval by two thirds of the members of parliament. In Liberia, the issuance of a declaration by the Legislature is in response to an advice by a two-thirds majority of the cabinet that it has “become apparent . . . that the President is unable to discharge the powers and duties of his office.”

In Indonesia, two thirds of the People’s Representative Council must support the submission of a request to the Constitutional Court to declare that a president no longer meets the qualifications for office, which include being “mentally and physically capable” of performing the presidential duties. Upon such a determination by the court, a proposal for removal will be forwarded by the Council to the People’s Consultative Assembly (full parliament), which makes a final determination on impeachment.

Although Argentina’s law does not provide specifics about procedures for involuntary removal due to illness, constitutional scholars have opined that in case of illness, if a president refuses to step down, Congress could declare the incapacity of the president, a decision that may be appealable to the Supreme Court.

3. Certification by Country’s Chancellor

In Guyana, a president’s term is suspended when the prime minister informs the chancellor of a motion to investigate the president’s capacity to fulfill the official duties. Removal of the president from office requires certification by the chancellor based on a report by a medical board. The chancellor may be viewed as impartial, as he or she is appointed by the president with the agreement of the leader of the opposition.

IV. Order of Succession

The countries surveyed have varied orders of succession in the event of the president’s incapacity. While some countries allow for succession to take place until the end of the presidential term, others provide for early elections and provide for reduced presidential authorities to interim presidents. The following are examples of the different rules that apply to succession.

A. Temporary Succession Until Elections

Under Argentina’s law, in the event of the incapacitation of a president, the Congress will determine which public official is to hold the presidency, until the cause of the incapacitation ceases or a new president is elected. Authorities will generally be transferred in accordance with the following order of succession: the vice president, the president of the Senate, the president of the Chamber of Deputies, or the president of the Supreme Court.

In Azerbaijan, until an election of a new president is held, executive power will be transferred in this order: first to the “first vice president,” then to the vice president, next to the PM, and then to the speaker of the National Assembly. If all these individuals are unable to fulfill their duties, the National Assembly will, by resolution, appoint a state official who will assume the duties of acting president.

In France, elections for a new president generally must be organized within 20 days to 35 days after the start of a presidential vacancy or the declaration of an impediment. Presidential authority is transferred temporarily to the president of the Senate, and in his or her absence, to the cabinet as a whole. As in similar countries, the interim president’s powers are reduced, and he or she is not allowed to organize a referendum, to dissolve the National Assembly, or to amend the Constitution.

Similarly, in Egypt, incapacity will lead to elections. Under such circumstances, the chairman of the Council of Representatives assumes presidential powers until a new president is elected. A new president must be elected during a period not exceeding 90 days from the date the office of the president becomes vacant.

Under Portugal’s law, when the president of the republic is temporarily unable to perform the functions of the office, or while the office is vacant and until the new president-elect is installed, presidential functions are performed by the president of the Assembly of the Republic or by a substitute in his or her absence.  

In Russia, presidential incapacity will result in the scheduling of a new presidential election within three months following a vacancy in the presidential office. During this period, the president’s duties will generally be performed by the chairman of the government (PM).

B. Succession Until End of Term of Office

Under Nicaragua’s law, presidential authorities will be transferred to a vice president, and in his or her absence to the president of the National Assembly.

Under the law of Liberia, the vice president will complete the rest of the term in the event of the president’s incapacity. If the vice president’s office becomes vacant, the executive powers will be transferred according to the following line of succession: the speaker of the House of Representatives, the president pro tempore of the Senate, the deputy speaker or members of the cabinet in the order of precedence as established by law.

In Guyana, if the president is unable to hold office due to physical or mental infirmity, the line of succession goes to the PM, and in the PM’s absence or inability to assume responsibilities, to a minister elected by the cabinet for this purpose. If neither the PM nor the minister is available, the chancellor becomes president. 

While Indonesia’s Constitution first lists the vice president as a replacement for a president in a case of incapacity, if that position is vacant, presidential powers will be transferred temporarily to “a joint administration of the Minister of Foreign Affairs, the Minister of Home Affairs, and the Minister of Defence.” Within 30 days following such transfer, both houses of parliament will hold a session to elect a new president and vice president, who will serve for the remainder of the term of office. The positions will be filled from the tickets nominated by the political parties or coalitions of political parties whose tickets won first and second place in the last presidential election.

Specific information on each country’s laws is provided in the attached country surveys.

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Prepared by Ruth Levush
Senior Foreign Law Specialist
October 2020

[1] A parliamentary system refers to a “democratic form of government in which the party (or a coalition of parties) with the greatest representation in the parliament (legislature) forms the government, its leader becoming prime minister or chancellor. Executive functions are exercised by members of the parliament appointed by the prime minister to the cabinet.” Parliamentary System, Encyclopedia Britannica, https://perma.cc/TXR5-RRMU.

[2] See additional information at Kevin YL Tan, Presidential Systems, Oxford Constitutional Law, https://perma.cc/YYT2-DQND.

[3] Citations here and below are from the attached country surveys.

[4] Estonia has a parliamentary system of government. It is included here because a judicial determination of incapacity was found to be a criterion for parliamentary decision on removal.

Source & Note: Susan Taylor, Law Library of Congress. Map reflects results for 23 jurisdictions reviewed in Legal Mechanisms for Removing a Head of State for Incapacity (Law Library of Congress, October 2020).

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Last Updated: 12/31/2020