PROF. DR. MIHA RIBARIC: THE INSTITUTION OF THE PRESIDENT OF THE REPUBLIC ON THE 10TH ANNIVERSARY OF THE CONSTITUTION
Portoroz, 4 June 2001
Prof. Dr Miha RIBARIC
Adviser to the President of the Republic of Slovenia
for constitutional law affairs
THE INSTITUTION OF THE PRESIDENT OF THE REPUBLIC
ON THE 10TH ANNIVERSARY OF THE CONSTITUTION
Portoroz, 4 - 6 June 2001
The adoption and promulgation of the Slovene constitution on 23 December 1991 followed quickly on the heels of the declaration of independence of the Republic of Slovenia as a sovereign state on 25 June 1991.
In accordance with the valid constitution, the institution of president of the republic is enshrined in the parliamentary system.
One special feature of Slovenia's constitutional order
is that on the one hand the manner of the president being elected directly strengthens the position and role of this office, while on the other hand the president's actual powers are set out in a very restrictive manner. In a similar way we may point to the fact that the constitutional definition of the position of the government and National Assembly does not express in sufficient measure the principle of division of power into the legislative, executive and judicial branches. This may be seen in the constitutional provisions regarding the manner of forming a government, that is, the appointment of ministers, and regarding the possibility of dissolving the National Assembly.
The office of president
The Slovene constitution differentiates between the office of president of the republic and the president's powers.
The office as defined in the constitution provides that the president of the republic represents the Republic of Slovenia and is the commander-in-chief of its defence forces (Article 102).
Representation
The institution of president of the republic reflects the general awareness around the world that every state needs a figure at the very top of the nation, including republics. The president of the republic is the first representative of the state. The Slovene constitution does not define the substance of this representative function.
The German constitution, for example, expressly provides that the federal president represents the federal republic in international law. According to the Austrian constitution, their federal president represents the republic externally. The Italian constitution provides that the president of the republic is the head of state and represents national unity. According to the Czech constitution, the president of the republic represents the country externally. Under the Polish constitution the president of the republic is the supreme representative of the republic and a guarantor of the continuity of national authority. The Polish constitution also contains a provision whereby the president of the republic ensures respect of the constitution, and protects the sovereignty and security of the country and the inviolability of its territory.
In the Slovene constitution, the function of representing the republic clearly means that the president represents the republic both domestically and externally in international relations. According to the constitution, the president of the republic is the sole body that represents the state. In order to perform this function, the president requires no additional special empowerment. In German literature it is emphasised that the power to represent externally does not grant the federal president any kind of power to autonomously join in the formulation of foreign policy within the state. The federal president is not the empowered bearer of material foreign-policy authority, rather these are the parliament and government. According to this position the German federal president articulates and gives expression to the political will of the federal republic, while it is actually formulated by the government, whereby the dignity of the president's office and the personal touch in the president's performance of this office allow a certain latitude for the articulation of this expression, as well as a certain degree of independence (Schlaich: 571 and sub.). In understanding this position, consideration must be given to the provision of the German constitution, which in the area of foreign policy also grants the president the right to conclude treaties.
The Slovene constitutional order is also governed by the fact that the parliament and government are the empowered bearers of material foreign-policy authority. Yet this does not mean that the role of the president of the republic in the foreign policy arena is reduced merely to the mechanical pronouncement of the national will as formulated by the competent bodies. In practice, prior to any appearance in the foreign policy arena, the president of the republic requests the necessary information and opinion from the foreign ministry and the government. The president of the republic is not formally bound to take such consultation, but in the interest of coordinated and effective implementation of foreign policy it is in the very nature of things essential and useful to be armed with the position of the foreign ministry and government. The basic foreign policy orientation is formulated by the parliament and government, while in performing his office in the foreign policy area the president of the republic has a certain open space and a degree of independence (more on this in Ribariè, 2000: www.up-rs.si).
In fulfilling his representative function in public appearances at home, as president of all the citizens, the president of the republic performs the function of integration. As is the case for the activities of the national presidents of certain other comparable countries with parliamentary democracy, the Slovene president's public speeches and appearances are the most important instrument for fulfilling the presidential assignment of integration. Unless the parliament requires the president of the republic to give an opinion on some matter, the national president is legally not bound to take part in such activities. Undoubtedly, however, every public appearance by the president involves a functioning of the official dimension of his office, and must therefore observe the constitutionally provided framework of that office.
In public speeches the president of the republic links together the citizens in their affiliation to the community organised as a state. In his public appearances he promotes the fundamental values of a civilised society, which in first place are respect of human rights and basic freedoms, affirming an awareness of national belonging and belonging to the international community, the principle of democracy, a state based on the rule of law and on social welfare, solidarity, he stands in support of the possibility of education and vocational training accessible to all, of respect of diversity and of tolerance between people. The role of president of the republic as a factor of national integration finds expression in the public position the president takes on individual important issues, such as a commitment to incorporation into the European Union and Nato, a commitment to putting behind us the divisions of the past and to national reconciliation, cautioning over the phenomenon of “party-ocracy”, over the need for court proceedings to be concluded in reasonable time frames and the need to speed up the denationalisation process. On the vote of no confidence passed in the government in spring 2000 the president of the republic adopted the position that he would not propose a new prime minister, since there was no realistic prospect for the formation of a stable government, in other words, one which would enjoy sufficient support in parliament, and that it would be better to leave it to the electorate to decide on a new parliament and consequently on a new government, and he therefore supported the dissolving of the National Assembly and early elections.
In relations with other constitutional bodies such as the government and National Assembly, to highlight these two bodies, the directly elected president of the republic enjoys political weight and respect, something that depends primarily on how they receive his communications, his ideas and his opinions given in public. The position held by the president of the republic in public, his public opinion rating, depends to a lesser extent on his formal office as such and on the specific powers granted to him by the constitution, and more, indeed primarily, on what substance he injects into his activities and in what manner he performs them.
Being directly elected gives the president of the republic special political weight, and the separation within the political arena offers broader possibilities for his role as mediator. The role of mediator played by what was at the time the president of the presidency, in effect the collective president of the republic, found practical expression for example in the achievement of political consensus on the manner of holding the plebiscite on the independence of the Republic of Slovenia in 1990. Consensus was reached on the decision that the Republic of Slovenia would become an independent state being passed if a majority of all those eligible to vote, voted in favour. A further example of this mediating role of the president of the republic can be seen in his recommendation to parliament that it adopt the decision on associate membership of the European Union in May 1997.
The role of the president of the republic can also be seen in the part played in creating political consensus prior to the submission of personnel proposals to the National Assembly, including judges for the Constitutional Court and the European Court of Human Rights, the human rights ombudsman, members of the Court of Auditors, the governor of the Bank of Slovenia and members of the Bank Council, and members of the Judicial Council.
Protocol position
The function of representation performed by the president of the republic should not be equated with the president's protocol position. According to protocol, the president of the republic comes before all other bodies, in other words in first place. The protocol position of the president of the republic should not be equated with his functions, tasks and powers. The concept of protocol is not a synonym for the concept of representation.
Commander-in-chief
According to the constitution the president of the republic is commander-in-chief of the country's defence forces (Article 102). The constitution provides that the area of defence is regulated in more detail by a law adopted by the National Assembly by a two-thirds majority vote of deputies present (Article 124). The Zakon o obrambi / Defence Act (Official Journal of the Republic of Slovenia, nos. 82/1994, 44/1997, 87/1997, 13/1998, 33/2000) does not go into the function of the commander-in-chief. The provision on command sets out that the president of the republic is the commander-in-chief of the Slovene armed forces, and that military command through subordinate commands, units and institutions is in the competence of the chief of staff and other commanders (Article 43). According to the provision on managing the armed forces, the minister decrees via the chiefs of staff the necessary developmental, organisational, technical and other measures and orientations, which are fulfilled by the chief of staff and subordinate commanders. The commanders are answerable for implementing these measures and orientations via their superiors to the responsible minister (Article 42). The command chain from the commander-in-chief down is not defined. The Defence Act does not deal in any detail with the constitutional function of the president of the republic as commander-in-chief. Nevertheless the act does contain a provision whereby on the proposal of the government the president of the republic declares a state of emergency or war, and passes decrees with the force of law in the area of defence, and decides on the use of the Slovene armed forces, the introduction of co-opting labour and materials and general mobilisation, and on a state of emergency if the National Assembly cannot meet (Article 83). So this therefore does not involve the powers of the commander-in-chief, but the president of the republic, which are in any case already set out in the constitution, either explicitly or in more general provisions (articles 92 and 108), and these powers are exercised by the president of the republic in place of the National Assembly whenever it cannot meet in session. At the same time, the Defence Act provides that the minister, after obtaining the prior opinion of the president of the republic, determines for the chiefs of staff as a rule the annual guidelines for planning the operational, material and organisational preparations for the use of the armed forces (Article 42).
Since according to the constitution the president of the republic is responsible for performing the functions of his office in their entirety, such a legal order, or more precisely, non-order regarding the function of the commander-in-chief means that the responsibility of the president of the republic as commander-in-chief remains an open question. I believe that the constitutional provision regarding the function of the president of the republic as commander-in-chief does in fact suffice, but that it is necessary to define in law the powers of the president of the republic as commander-in-chief and the role of the government and the defence minister in this. The requirement for the armed forces to be subordinate to the civilian government demands an entirely unequivocal legal provision regarding who gives orders to the armed forces, while there must be fully elaborated legal provision for control exercised by parliament and its working bodies in the area of defence and the armed forces, there must be clear distinctions drawn between the powers and responsibility of all subjects of decision-making, and safety valves must be built into the legal system which would prevent any holder of public office using the armed forces to act against the valid constitutional order.
In connection with the function of the president of the republic as commander-in-chief of the defence forces, I believe the Defence Council, the advisory body to the president of the republic, is one unresolved issue. According to the constitution, the president of the republic is the commander-in-chief of the defence forces, which means that he commands the armed forces. The function of the commander-in-chief during peacetime and war, and the powers held by the president of the republic whenever the National Assembly is unable to meet owing to a state of emergency or war, in my opinion demands that the constitution envisages a Defence Council which is presided over by the president of the republic and set up in accordance with the law. The Council would be made up, according to position, for example by the prime minister, the president of the National Assembly, the ministers of foreign affairs, defence, the interior, finance and other officials as provided by law, and in the direct threat of war or during war it would also include representatives of all the political parties represented in the National Assembly. I believe that the existing National Security Council, as a consultative and coordinating body of the government, and the national defence operational headquarters, cannot replace the role that must be performed by the advisory body for the president of the republic in performing his function, his competence, powers and in ensuring responsibility. The president’s defence council would provide not simply advice and coordination, but also strong and appropriately balanced control over the president of the republic and the government in exercising their powers in such an important and sensitive area as defence and national security.
Powers
In my opinion the wording of Article 102 of the constitution should distinguish between the office of president of the republic as such and the tasks, powers and areas of competence which that office comprises. An analysis of the use elsewhere in the Slovene constitution of the term “office” (in Slovene: funkcija) indicates that the constitutional term “office” implies a whole range of tasks, powers and competence held by office holders.
The powers of the president of the republic are set out in the constitution and also in certain laws which have no explicit basis in the constitution regarding this question.
In the provisions entitled “Powers of the President of the Republic” (Article 107), in addition to the individual powers set out there is also the general provision that he “performs other duties determined by this Constitution”. So the constitution does not in fact give any indication of specific powers provided by other laws.
The powers that are not explicitly set out in the constitution, or which do not derive directly from constitutional provisions, are granted to the president of the republic by the following laws:
- in compliance with the Foreign Affairs Act he decides on the opening or closure of missions abroad (embassies, missions and permanent representations at international organisations);
- in compliance with the Bank of Slovenia Act he proposes to the National Assembly the appointment of the governor of the Bank of Slovenia and the members of the Bank Council;
- in compliance with the Human Rights Ombudsman Act he proposes to the National Assembly the election of the human rights ombudsman;
- in compliance with the Court of Auditors Act he proposes to the National Assembly the appointment of members of the Court of Auditors, that is, the president and two deputies;
- in compliance with the Constitutional Court Act he proposes to the National Assembly the appointment of candidates from the Republic of Slovenia for the European Court of Human Rights.
From the constitutional aspect the question arises as to whether it would be necessary to set out explicitly in the constitution these powers currently provided by other laws, possibly by supplementing the constitution with the provision that the president of the republic also performs other tasks not specified in this constitution, if so provided by law. For such a law to be passed a qualified majority of deputies could be stipulated, or even a majority such as is required to amend the constitution, that is a two thirds majority vote of all deputies. Such a provision is contained, for example, in the Czech constitution.
Formation of government
According to the valid constitution the National Assembly does in fact decide twice on the government. It does so first in the procedure for electing the prime minister, and then in a separate procedure for appointing ministers. In this regard I should just repeat my view published in 1997, that such a dual method of forming a government is irrational, weakening the chances of the prime minister elect forming a competent government and taking full responsibility for it, and it also runs counter to the principle of the division of power, thereby impeding the effective performance of the executive and legislative functions (Ribariè, 1997: 121). Constitutionally this issue could be resolved either by using the model of the German constitution, whereby on the proposal of the elected prime minister the president of the republic would appoint ministers, or by the president of the republic appointing the prime minister and upon the latter’s proposal also the ministers, with the government requiring a vote of confidence from parliament, as is the system under the Italian, Austrian and Czech constitutions.
Dissolving the National Assembly
According to the valid constitution, the dissolving of parliament is envisaged where the National Assembly fails to elect a prime minister after a second or third round of voting (Article 111) or where after the National Assembly has not given a vote of confidence in the government, it fails to elect a new prime minister or to provide the incumbent prime minister with a new vote of confidence within the deadline of 30 days (Article 117). The prime minister may also tie the vote of confidence to the adoption of a law or other decision in the National Assembly. If the decision is not adopted, it is deemed that a vote of no confidence is passed in the government. After the German model, the Slovene constitution provides what is termed the constructive vote of no confidence in the government, meaning that the National Assembly may pass a vote of no confidence in the government only in such a way that on the proposal of at least ten deputies it elects a new prime minister (Article 116). According to the Slovene constitution the government has no direct possibility for obtaining the dissolution of parliament, nor indeed does the National Assembly have any explicit constitutional basis and thereby possibility of dissolving itself. In comparison with the German constitution, the Slovene constitution offers less scope for dissolving parliament. In the case of a prime minister elected by a simple majority, that is a majority of votes cast by deputies present in a third round, the Slovene constitution envisages no possibility for dissolving the National Assembly. In the event of a head of government not being elected by a majority of all members of the Bundestag, the German constitution empowers the federal president either to appoint the elected person as head of government or dissolve parliament, within seven days (Article 63 of the German constitution). The other case where the German constitutional order allows the federal president to dissolve the Bundestag is where the head of government at his own request requires a vote of confidence which he does not obtain, in other words the support of a majority of all members of the Bundestag, so the federal president may then on the proposal of the head of government dissolve the Bundestag within 21 days. The right to dissolve the Bundestag ceases as soon as another head of government is elected by a majority of its members (Article 68).
The primary reason for dissolving parliament is that in cases where parliament is not able to function it allows a new parliament to be elected. If parliament reaches a stalemate, there must be constitutional remedies available for resolving the situation. And if there arises a long-term crisis of government, in the form of the government being incapable of performing its basic functions or if there is a paralysing of parliament through obstruction or inability of the parliamentary parties to resolve conflicts in parliamentary procedure in a reasonable time, or if there are conflicts between parliament and the will of the people as expressed in a referendum which cannot be resolved in the existing parliament, and in other crisis situations, it must be possible to resolve the situation by dissolving parliament and electing a new one.
Under the Austrian constitution the federal president can dissolve the Nationalrat on the proposal of the government. And the Nationalrat may also dissolve itself. This indeed happened in the second republic ten times up until the end of 1986. The federal president may only dissolve the Nationalrat once for the same reason (Article 29 of the Austrian constitution).
The Italian constitution provides that the president of the republic may dissolve both chambers of parliament or just one after having listened to the opinion of their presidents. The president of the republic may not, however, exercise this right in the last six months of his term of office (Article 88).
According to the Czech constitution, the president of the republic may dissolve the chamber of deputies if:
- after a third round the newly appointed government does not obtain a vote of confidence;
- the chamber of deputies fails within three months to finish the reading of a government-sponsored bill if the government has tied it to a vote of confidence;
- a session of the chamber of deputies has been interrupted for longer than is permitted (no more than 120 days in one year);
- the chamber of deputies is inquorate for more than three months even though there has been no interruption of session and sittings have been called again in this time.
Under the Czech constitution, however, the chamber of deputies may not be dissolved in the three months running up to the expiry of its term, which is four years.
I would reiterate my view that the currently valid provisions of the Slovene constitution on dissolving the National Assembly do not deal in a satisfactory way with the possibility of resolving the situation in the event of the incapacity of the government to perform tasks that are vitally important to the state or incapacity of the National Assembly to perform tasks that are of key importance to the state, and where it is not possible to resolve the situation by reforming the government (Ribariè, 1997: 124). The comparative law review already shown indicates the broad possibilities for the concrete arrangement of this issue. From the very nature of things it follows that a possible constitutional provision that would empower the National Assembly to dissolve itself would not suffice, if it were necessary to resolve a stalemate, paralysis, or incapacity to function of the National Assembly itself. By analogy, for the same reason it would not suffice simply to constitutionally empower the government to propose to the president of the republic the dissolution of the National Assembly. I would lean towards the president of the republic having the right to dissolve parliament after hearing the opinion of the president of the National Assembly, the National Council and the prime minister. A solution along the lines of the Czech constitution, or a combination of various options, would also be a possibility.
Countersignature
The Slovene constitution does not contain the institution of countersignature. According to the German constitution, all decrees and measures issued by the federal president must bear the countersignature of the federal chancellor or the competent federal minister in order to be valid. This does not apply to the appointment and dismissal of the federal chancellor himself, the dissolving of the Bundestag in the case of election of a federal chancellor by a minority of deputies and in the case of the federal president requesting the federal chancellor or a minister to perform their functions until the appointment of a successor (Article 58 of the German constitution).
Under the Italian constitution no measure issued by the president of the republic is valid unless it is also signed by the ministers proposing them, who also assume responsibility. Acts with the force of law, and others for which this is provided by law, must also be signed by the president of the ministerial council (Article 89). The Austrian constitution provides that all acts issued by the federal president, unless otherwise provided by the constitution, are done so on the proposal of the federal government or a federal minister empowered by the government. Unless otherwise provided by the constitution, all acts issued by the federal president require the countersignature of the federal chancellor or the competent federal minister in order to be valid (Article 67). The Czech constitution sets out those decisions of the president of the republic which require the accompanying signature of the prime minister or another authorised member of the government in order to be valid (Article 63).
The institution of countersignature is intended to ensure the unified functioning of the state. This makes it possible for the co-signatory to assume responsibility for all the acts issued by the head of state that require the countersignature of the prime minister or a minister. I believe that the institution of countersignature is in principle not incompatible with the general conception of the Slovene constitution, indeed entirely the opposite, there appears to be no justifiable reason why the constitution has not introduced this.
Immunity
The institution of co-signatories also allows an appropriate definition of the head of state’s answerability. The Slovene constitution does not envisage immunity for the president of the republic. In this regard, too, the Slovene constitution differs from comparable constitutional orders. A comparative review indicates that there is no reason in principle for omitting a provision on immunity of the president of the republic in the Slovene constitution (more on this in Ribariè, 1997: 127 and sub.). Immunity therefore also ranks among those issues which should be reassessed, if and when an amendment to the valid constitution is pursued.
The president of the republic’s personal position and office
The provisions of the Deputies Act regarding the material and other conditions for the work of deputies and their rights upon the expiry of their term are used by example also for the president of the republic. The president of the republic has the right to a salary at a level determined by the Deputies Act for the president of the National Assembly. In view of the importance of the office of president of the republic both at home and in international relations, such a provision is questionable. According to the provisions of the same act, the prime minister and the president of the Constitutional Court receive the same salary as the president of the National Assembly. The human rights ombudsman, according to the act governing that institution, has the right to the same salary as the president of the Constitutional Court, and this same right is held by the president of the Court of Auditors, according to the Court of Auditors Act. The director general of the Agency for Auditing Ownership Transformation has according to the relevant law the right to a salary like that of the president of the Court of Auditors. Meanwhile, the National Council has determined a salary for its president which is in fact the same as that of the president of the National Assembly. Such a system in practice renders equal the salaries of eight state office holders, which is clearly unacceptable, not just in relation to the president of the republic, but is also questionable in terms of the relationships between these office holders themselves.
On the basis of authorisation under the Deputies Act, the president of the republic has determined the organisation and functioning of his own bureaux. These bureaux are managed as the Office of the President of the Republic.
It would make sense to deal with all of this subject matter through a special act governing the material and other conditions for performing the office of president of the republic. Indeed the National Assembly adopted a similar decision some time ago. Yet the possibility should not be ruled out of basic provisions on the president’s remuneration and means for the functioning of his office being inserted into the constitution. The Italian constitution provides, for example, that the president’s remuneration and allowance are determined by a law.
Deputisation
In the event of permanent absence, death, resignation or other cessation of performing the office of president, the president of the National Assembly temporarily performs the duties of the office of president of the republic until the election of a new president of the republic. The president of the National Assembly also temporarily performs the duties of the office of the president of the republic during any absence of the president of the republic (Article 106 of the constitution).
Deputisation represents the assumption of all the powers of president of the republic. Neither the constitution nor any other regulation comes close to defining either permanent or temporary absence, or who is competent to determine whether such a situation has arisen.
The constitution also fails to address the situation where there is not an absence which would require the president of the National Assembly to temporarily perform the office of president of the republic in its entirety and with all pertaining powers, but a deputisation under authorisation or a division of work between the president and his representative. If for example the president of the republic is on a state visit abroad, he is indeed there as a function of his duties. In any event, just the fact of the presence somewhere else of the president of the republic does not necessarily mean an absence which would prevent him from performing his office. The decision to promulgate laws, for example, could in view of modern technical means be made by the president of the republic anywhere. I believe there is no constitutional impediment to a situation where if the president of the republic is performing his office, but is prevented from performing certain necessary official duties at home, he could authorise the president of the National Assembly to perform such duties. In such cases, therefore, the president of the National Assembly would not be performing the office of president of the republic in its entirety, but just performing certain tasks under authorisation. Such authorisation can be specified precisely through the actual citation of the task or tasks, or could be left more general. In each case this would only involve the performing of tasks which need to be done in a prescribed deadline or, in the interest of the state, without delay.
The constitution does not address the responsibility of the president of the National Assembly for violations of the constitution or serious violations of the law while deputising for the president of the republic. If we were to accept the position that it is permissible to file a complaint at the Constitutional Court against the president of the National Assembly for violations of the constitution or law in performing the office of president of the republic, such a complaint could only be filed by the National Assembly itself, which in fact has at its disposal a simpler avenue for dismissing the president of the National Assembly if it so decides.
Again, the constitution does not regulate who, in the event of dismissal or other cessation of office of the president of the National Assembly, or where as a result of permanent or temporary absence the president of the National Assembly could not deputise for the president of the republic, could temporarily perform the office of president of the republic. The deputy presidents of the National Assembly are not a constitutional category, and are provided – to a maximum of three – by the rules of procedure of the National Assembly. If the president of the National Assembly is absent, he is deputised by one of the deputy presidents determined by the president of the National Assembly. I believe that it is not self-evident, and in any event it would be highly controversial, that in temporarily performing the office of president of the republic the president of the National Assembly should be deputised by one of the National Assembly deputy presidents.
It seems necessary to assess whether there is a need to make more precise legal provision for the constitutional system of deputising for the president of the republic, and with what kind of act this might be done.
Being informed
Both for representing the country and for performing other activities as president of the republic, it is important that he be kept properly informed. The provision of information for the president of the republic from the National Assembly is regulated in its rules of procedure, and from the government in its own rules of procedure. The government cooperates with the president of the republic over questions within his competence, and acquaints him with issues that are important for his work. According to the Foreign Affairs Act, the Ministry of Foreign Affairs is bound to draw up expert background information for the needs of the president of the republic in the area of foreign policy. The Defence Act contains provisions regarding the informing of the president of the republic as commander-in-chief, and more particularly the Instructions on fulfilling obligations towards the president of the republic in the area of defence, which were passed by the defence minister upon prior approval of the president of the republic. The Slovene Intelligence and Security Agency Act contains a provision whereby the agency informs the president of the republic of its findings where they involve matters within his competence.
I believe that it would be prudent either to supplement the Government Act, or to incorporate into the President of the Republic Act being drafted, a provision on the informing of the president of the republic on the part of the government and other state bodies. It should be determined in law that the prime minister keeps the president of the republic continuously informed of government policy and the working of individual ministries and offices, by sending him the essential material and written reports on matters of special importance, and if needed by personally familiarising him. For the sake of keeping the president of the republic informed, the secretary general of the Office of the President of the Republic should be regularly invited to government sessions. The rules of procedure for the German government, for example, have just such a provision. By comparison I should mention that according to the provision in the German federal government’s rules of procedure the chancellor keeps the federal president currently informed of policies and the business of individual ministries, by sending him the essential material and written reports on matters of special importance, and where necessary also in person. The head of the federal president’s office regularly participates in government sessions, something that is evident in practice. The rules of procedure for the German federal government are a constitutional category. The German constitution provides that the head of government conducts his business according to rules of procedure adopted by the government and confirmed by the federal president.
The ministries and government offices should be bound by law to keep the president of the republic currently informed through regular and special reports and to supply all other information important for the president’s work.
Election of judges
The constitutional provision on election of judges (Article 130) merits critical appraisal. According to the constitution, judges – but not Constitutional Court judges – are elected by the National Assembly on the proposal of the Judicial Council. Decisions passed in the National Assembly are by the very nature of things essentially political, and this applies also to elections and appointments in general, including election of judges.
The independence of judges must be ensured right from the very manner of their appointment. In order to ensure the independence of judges, that is, their bond in performing the judicial function exclusively to the constitution and the law, exclusion should be effected to the greatest possible extent of political criteria for their appointment and promotion. In some comparable constitutional systems, in appointing judges the parliament participates at least indirectly. A specific but not decisive role played by parliament is rational in order to ensure the democratic process and public control.
I believe that the constitution ought to be amended so that judges are appointed by the president of the republic on the proposal of an appropriately composed judicial council, and with the appropriate participation of the justice minister (more on this in Ribariè, 1997: 126 and sub.).
Promulgation of laws
There is questionable sense in the eight-day deadline provided in the constitution for the promulgation of laws. According to the constitutional provision, laws are promulgated by the president of the republic no later than eight days after they have been passed (Article 91). The constitution also provides that the National Council may within seven days of the passing of a law and prior to its promulgation require the National Assembly to decide again on such law. In observing the right of the National Council, the president of the republic does not in fact promulgate laws no later than eight days after they have been passed, rather the eighth day is the first and last day when the president can and must promulgate a law. Moreover, in compliance with the Referendum and People’s Initiative Act, at least a third of National Assembly deputies and the National Council may lodge a request for the calling of an immediate referendum no later than seven days after the passing of a law, and in the same way, in anticipation of securing the support of at least 40,000 voters, within seven days of the passing of a law the initiator of the request can inform the president of the National Assembly of his intended initiative with a minimum support of just 200 voters. In short, for the promulgation of laws the president of the republic has at his disposal only the eighth day after their passage.
With regard to the promulgation of laws, German literature makes reference to the fact that the federal president has an incontrovertible formal right of verification. Under this we are given to understand that the federal president verifies whether a given law is within the competence of the federal government, whether there was a qualified majority in the Bundestag and Bundesrat for the passage of the law and whether indeed the law was passed by such a majority, whether the consent of the Bundesrat was required and whether this consent was also given. In short the German president is bound to assess whether the law has been passed by the competent body and in the prescribed manner. Here it should be taken into consideration that laws are submitted to the president by the chancellor and competent minister with a countersigned document promulgating the law. If the federal president declines signature, he informs the chancellor of this with an appropriate justification, and if the chancellor does not agree with this, he may initiate proceedings at the constitutional court, which decides on whether the reservations of the federal president are justified or whether he must issue the document promulgating the law. On this there is a continuing debate in German literature over whether in addition to the formal right to verification the federal president also has the material right to verification (consistency with the constitution). The prevailing view is that the federal president does indeed also have this right (Spath: 81 and sub.).
I shall not delve further into this issue in this discussion. I believe that what has been set out above quite rightly brings into question the eight-day deadline provided in the constitution for the promulgation of laws, a time frame which in actual fact is reduced to the eighth day being the first and last day.
References:
- Ribaric Miha (1997): Nekateri vidiki ustavnega polozaja predsednika republike, 3rd professional meeting of lawyers of public law, Portoroz, 3-5 December 1997, Izobrazevanje in usposabljanje v javni upravi 1/1997, Institute for Public Administration.
- Schlaich Klaus (1992): Der Bundespräsident, in Handbuch des Staatsrechts, II, C.F. Müller, Heidelberg.
- Spath Franz (1990): Das Bundespräsidialamt, Droste Verlag Düsseldorf.
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