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An Australian Republic - Thinking About the Drafting...

Extracts from the "Four Precedents", Topic 2:
President's Powers, Ministers' Powers, and Ministerial Responsibility to the Legislature


This is one of the supplementary pages to Thinking About the Drafting. The purpose of these pages is explained in Four Precedents - Introduction.

Austria

Chapter III Federal Execution
Part A Administration
Title 1 The Federal President

Article 65 [Functions]

(1) The Federal President represents the Republic internationally, receives and accredits envoys, sanctions the appointment of foreign consuls, appoints the consular representatives of the Republic abroad, and concludes treaties. At the time of conclusion of a treaty not falling under Article 50, he can direct that the treaty in question shall be implemented by the issue of ordinances.

(2) Furthermore, the following powers -- notwithstanding the powers assigned to him by other provisions of this Constitution -- are vested in the President:
a) to appoint federal civil servants, including officers as well as other federal functionaries, and to bestow official titles on them;
b) to create and to bestow professional titles;
c) in individual cases to pardon persons sentenced without further resources of appeal, to mitigate and commute sentences pronounced by the courts, as an act of grace to annul sentences and to grant remission from their legal consequences, and moreover to quash criminal proceedings in actions subject to prosecution ex officio; and
d) on the petition of parents to declare illegitimate children legitimate.

(3) Special laws provide to what extent powers are additionally vested in the Federal President with respect to the grant of honorary privileges, extraordinary gratifications, allowances and pensions, the right to nominate and confirm persons in appointments, and to exercise other powers in personnel matters.

Article 66 [Authorization]

(1) The Federal President can assign to the competent members of the Federal Government the right vested in him to appoint certain categories of federal civil servants.

(2) The Federal President can authorize the Federal Government or the competent members of the Federal Government to conclude certain categories of treaties which do not fall under the terms of Article 50; such an authorization extends also to the power to issue ordinances in accordance with Article 65 (1) second sentence.

Article 67 [Recommendation, Countersignature]

(1) Save as otherwise provided by the Constitution, all official acts of the Federal President shall be based on recommendation by the Federal Government or the Federal Minister authorized by it. The law provides to what extent the Federal Government or the competent Federal Minister is herein dependent on recommendations from other quarters.

(2) Save as otherwise provided by the Constitution, all official acts of the Federal President require for their validity the countersignature of the Federal Chancellor or the competent Federal Minister.

Title 2 The Federal Government

Article 69 [Government]

(1) The Federal Chancellor, the Vice-Chancellor, and the other Federal Ministers are entrusted with the highest administrative business of the Federation in so far as this is not assigned to the Federal President. They constitute as a body the Federal Government under the chairmanship of the Federal Chancellor.

(2) The Vice-Chancellor is entitled to deputize for the Federal Chancellor in his entire sphere of competence. Should the Federal Chancellor and the Vice-Chancellor simultaneously be prevented from the discharge of their responsibilities, the Federal President entrusts a member of the Federal Government to deputize for the Federal Chancellor.

Article 70 [Appointment]

(1) The Federal Chancellor and, on his recommendation, the other members of the Federal Government are appointed by the Federal President. No recommendation is requisite to the dismissal of the Federal Chancellor or the whole Federal Government; the dismissal of individual members of the Federal Government ensues on the recommendation of the Federal Chancellor. The appointment of the Federal Chancellor or the whole Federal Government is countersigned by the newly-appointed Federal Chancellor; dismissal requires no countersignature.

(2) Only persons eligible for the House of Representatives can be appointed Federal Chancellor, Vice-Chancellor, or Federal Minister; members of the Federal Government need not belong to the House of Representatives.

(3) Should a new Federal Government be appointed by the Federal President at a time when the House of Representatives is not in session, he must convoke the House of Representatives for an extraordinary session (Article 28 (2)) to meet within one week for the purpose of introducing the new Federal Government.

Article 71 [Interim Government]

Should the Federal Government have left office, the Federal President shall entrust members of the outgoing Government or senior civil servants of the Federal departments with continuation of the administration and one of them with the chairmanship of the provisional Federal Government until the formation of the new Federal Government. This provision applies analogously if individual members of the Federal Government have left office.

Article 72 [Affirmation]

(1) Before assuming office, the members of the Federal Government render an affirmation to the Federal President. The addition of a religious assertion is admissible.

(2) The instruments of appointment for the Federal Chancellor, the Vice-Chancellor, and the other Federal Ministers are executed by the Federal President on the day of the affirmation and are countersigned by the newly appointed Federal Chancellor.

(3) These provisions shall apply analogously to the cases mentioned in Article 71.

Article 74 [Vote of No Confidence]

(1) If the House of Representatives passes an explicit vote of no confidence in the Federal Government or individual members thereof, the Federal Government or the Federal Minister concerned shall be removed from office.

(2) The presence of half of the members of the House of Representatives is required for a vote of no confidence. Voting shall be adjourned until the next working day but one if one fifth of the members present so demands. Another adjournment of the division can ensue only from a decision by the House of Representatives.

(3) Notwithstanding the power otherwise vested in the Federal President in accordance with Article 70 (1), the Federal Government or its individual members shall in the legally specified contingencies or at their own wish be removed from office.

Article 76 [Responsibility]

(1) Pursuant to Article 142, the members of the Federal Government (Articles 69 and 71) are responsible to the House of Representatives.

(2) The presence of more than half the members is required for a motion which proffers a charge pursuant to Article 142.

Article 77 [Federal Ministries]

(1) The Federal Ministries and the authorities subordinate to them shall perform the business of the Federal administration.

(2) The number of the Federal Ministries, their competence, and their internal organization will be prescribed by federal law.
....

Article 80 [Command of the Army]

(1) Commander-in-Chief of the Federal Army is the Federal President.

(2) Save in so far as the Defence Law reserves disposal over the Federal Army to the Federal President, disposal over it lies with the competent Federal Minister within the limits of the authorization conferred on him by the Federal Government.

(3) Supreme command over the Federal Army is exercised by the competent Federal Minister (Article 76 (1)).

Iceland

Article 13

The President entrusts his authority to Ministers.

The seat of Government is in Reykjavik.

Article 14

Ministers are responsible for all executive acts. The responsibility of Ministers is established by law. Althingi may impeach Ministers on account of their official acts. The Court of Impeachment decides such cases.

Article 15

The President appoints Ministers and discharges them. He determines their number and assignments.

Article 16

The State Council is composed of the President of the Republic and the Ministers and is presided over by the President. Laws and important government measures shall be submitted to the President in the State Council.

Article 17

Ministerial meetings shall be held in order to discuss new legislative proposals and important State matters. Furthermore, ministerial meetings shall be held when one of the Ministers wishes to raise a matter there. The meetings shall be presided over by the Minister called upon by the President of the Republic to do so, who is designated Prime Minister.

Article 18

The Minister who has signed a measure shall, as a rule, submit it to the President.

Article 20

The President makes appointments to public offices as provided by law.

No person may hold public office unless he has Icelandic nationality. Each official shall take an oath or pledge to uphold the Constitution.

The President may remove from office any official whom he has appointed.

The President may transfer officials from one office to another on the condition that their official remuneration is not reduced, and that they have an option between such transfer and retirement with a pension, or old-age allowance, as prescribed by law.

Certain categories of officials, in addition to those mentioned in Article 61, may be exempted by law from this provision.

Article 21

The President of the Republic concludes treaties with other States. Unless approved by Althingi, he may not make such treaties if they entail renouncement of, or servitude on, territory or territorial waters, or if they require changes in the State system.

Article 23

The President of the Republic may adjourn sessions of Althingi for a certain period of time, but not for more than two weeks nor more than once a year. Althingi may, however, authorize the President to deviate from this provision. If sessions of Althingi have been adjourned, the President of the Republic may nevertheless convene Althingi if necessary. The President, moreover, is obliged to do so upon request by a majority of the Members of Althingi.

Article 25

The President of the Republic may have bills and draft resolutions submitted to Althingi.

Article 29

The President may decide that the prosecution for an offense be discontinued if there are strong reasons therefor. He grants pardon and amnesty. However, he may not absolve a Minister from prosecution or from a punishment imposed by the Court of Impeachment, unless approved by Althingi.

Article 30

The President grants, either himself or through other government authorities, exemptions from laws in accordance with established practice.

Article 51

Ministers are entitled to a seat in Althingi and, by virtue of their office, have the right to participate in its debates as often as they may desire, but they must observe the rules of procedure. They have the right to vote only if they are at the same time Members of Althingi.

Article 54

Each Member of Althingi may request, subject to the permission of Althingi, information from a Minister or an answer regarding a public matter, by tabling a question or requesting a report.

Ireland

THE PRESIDENT

Article 13.

1.
1. The President shall, on the nomination of Dáil Éireann, appoint the Taoiseach, that is, the head of the Government or Prime Minister.
2. The President shall, on the nomination of the Taoiseach with the previous approval of Dáil Éireann, appoint the other members of the Government.
3. The President shall, on the advice of the Taoiseach, accept the resignation or terminate the appointment of any member of the Government.
................................................

4 The supreme command of the Defense Forces is hereby vested in the President.

5

1 The exercise of the supreme command of the Defense Forces shall be regulated by law.
2 All commissioned officers of the Defense Forces shall hold their commissions from the President.

6 The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.

7.

1. The President may, after consultation with the Council of State, communicate with the Houses of the Oireachtas by message or address on any matter of national or public importance.
2. The President may, after consultation with the Council of State, address a message to the Nation at any time on any such matter.
3. Every such message or address must, however, have received the approval of the Government.

8.

1. The President shall not be answerable to either House of the Oireachtas or to any court for the exercise and performance of the powers and functions of his office or for any act done or purporting to be done by him in the exercise and performance of these powers and functions.
2. The behaviour of the President may, however, be brought under review in either of the Houses of the Oireachtas for the purposes of section 10 of Article 12 of this Constitution, or by any court, tribunal or body appointed or designated by either of the Houses of the Oireachtas for the investigation of a charge under section 10 of the said Article.

9. The powers and functions conferred on the President by this Constitution shall be exercisable and performable by him only on the advice of the Government, save where it is provided by this Constitution that he shall act in his absolute discretion or after consultation with or in relation to the Council of State, or on the advice or nomination of, or on receipt of any other communication from, any other person or body.

10. Subject to this Constitution, additional powers and functions may be conferred on the President by law.

11. No power or function conferred on the President by law shall be exercisable or performable by him save only on the advice of the Government.

THE GOVERNMENT

Article 28.

1. The Government shall consist of not less than seven and not more than fifteen members who shall be appointed by the President in accordance with the provisions of this Constitution.

2. The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the Government.

3

1. War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann
2. In the case of actual invasion, however, the Government may take whatever steps they may consider necessary for the protection of the State, and Dáil Éireann if not sitting shall be summoned to meet at the earliest practicable date.
3. ....

4

1. The Government shall be responsible to Dáil Éireann.
2. The Government shall meet and act collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.
3. The Government shall prepare Estimates of the Receipts and Estimates of the Expenditure of the State for each financial year, and shall present them to Dáil Éireann for consideration.

5

1. The head of the Government, or Prime Minister, shall be called, and is in this Constitution referred to as, the Taoiseach. [pronounced "Tee-shock"]
2. The Taoiseach shall keep the President generally informed on matters of domestic and international policy.
[6 - The Tanaiste, Deputy Prime Minister]

7

1. The Taoiseach, the Tánaiste and the member of the Government who is in charge of the Department of Finance must be members of Dáil Éireann.
2. The other members of the Government must be members of Dáil Éireann or Seanad Éireann, but not more than two may be members of Seanad Éireann.

8 Every member of the Government shall have the right to attend and be heard in each House of the Oireachtas.

9

1 The Taoiseach may resign from office at any time by placing his resignation in the hands of the President.
2 Any other member of the Government may resign from office by placing his resignation in the hands of the Taoiseach for submission to the President.
3 The President shall accept the resignation of a member of the Government, other than the Taoiseach, if so advised by the Taoiseach.
4 The Taoiseach may at any time, for reasons which to him seem sufficient, request a member of the Government to resign; should the member concerned fail to comply with the request, his appointment shall be terminated by the President if the Taoiseach so advises.

10 The Taoiseach shall resign from office upon his ceasing to retain the support of a majority in Dáil Éireann unless on his advice the President dissolves Dáil Éireann and on the reassembly of Dáil Éireann after the dissolution the Taoiseach secures the support of a majority in Dáil Éireann.

11

1 If the Taoiseach at any time resigns from office the other members of the Government shall be deemed also to have resigned from office, but the Taoiseach and the other members of the Government shall continue to carry on their duties until their successors shall have been appointed.
2 The members of the Government in office at the date of a dissolution of Dáil Éireann shall continue to hold office until their successors shall have been appointed.

12. The following matters shall be regulated in accordance with law, namely, the organization of, and distribution of business amongst, Departments of State, the designation of members of the Government to be the Ministers in charge of the said Departments, the discharge of the functions of the office of a member of the Government during his temporary absence or incapacity, and the remuneration of the members of the Government.

Portugal

PART III
Organisation of political power

SECTION I
General principles

Article 110
Organs with supreme authority

1. The organs with supreme authority are the President of the Republic, the Assembly of the Republic, the Government and the Courts.

2. The formation, composition, powers and operation of the organs with supreme authority are governed by this Constitution.

Article 111
Separation and interdependence

1. The organs with supreme authority shall be separate and interdependent as this Constitution provides.

SECTION II
The President of the Republic

CHAPTER II
Powers

Article 133
Powers with regard to other organs

The President of the Republic has the following powers in relation to other organs:

a. To preside over the Council of State;

b. To fix, in conformity with the electoral law, the dates of the elections for the President of the Republic, the Assembly of the Republic, the European Parliament and the regional legislative assemblies;

c. To convene extraordinary sessions of the Assembly of the Republic;

d. To address messages to the Assembly of the Republic and to the Regional Legislative Assemblies;

e. To dissolve the Assembly of the Republic, subject to the provisions of Article 172, after receiving the opinions of the parties represented in the Assembly and of the Council of State;

f. To appoint the Prime Minister in accordance with Article 187(1);

g. To dismiss the Government in accordance with Article 195(2) and to remove the Prime Minister from office under Article 186(4);

h. To appoint and remove from office members of the Government on the proposal of the Prime Minister;

i. To preside over the Council of Ministers at the request of the Prime Minister;

j. To dissolve the organs of self-government of the autonomous regions, on his or her own initiative or on the proposal of the Government, after receiving the opinions of the Assembly of the Republic and the Council of State;

l. To appoint and remove from office, on the proposal of the Government, the Ministers for the Republic for the autonomous regions, after receiving the opinion of the Council of State;

m. To appoint and remove from office, on the proposal of the Government, the president of the Court of Audit and the Attorney-General;

n. To appoint 5 of the members of the Council of State and 2 of the members of the Superior Council for the Judiciary ;

o. To preside over the Superior Council for National Defence;

p. To appoint and remove from office, on the proposal of the Government, the Chief of the General Staff of the Armed Forces, and, after receiving the opinion of the Chief of the General Staff, the Deputy Chief of the General Staff of the Armed Forces (if any) and the Chiefs of Staff of the three services of the Armed Forces.

Article 134
Personal powers

The President of the Republic has the following personal powers:

a. To perform the functions of Supreme Commander of the Armed Forces;

b. To promulgate and order the publication of laws, decree-laws and regulative decrees, and to sign resolutions of the Assembly of the Republic approving international agreements and the other decrees of Government;

c. To submit appropriate matters of national interest to a referendum under Article 115 as well as those referred to in Art. 232(2) and Article 256(3);

d. To declare a state of siege or a state of emergency, in conformity with the provisions of Articles 19 and 138;

e. To make a statement on all serious emergencies in the life of the Republic;

f. To grant pardons and to commute sentences, after receiving the opinion of the Government;

g. To request the Constitutional Court to undertake an anticipatory review of the constitutionality of provisions of laws, decree-laws and international conventions;

h. To request the Constitutional Court to rule on legal provisions that are unconstitutional or whether unconstitutionality has occurred through omission;

i. To award decorations in accordance with the law and to perform the function of grand-master of Portuguese orders of honour.

Article 135

Powers in international relations The President of the Republic has the following powers with respect to international relations:

a. To appoint ambassadors and envoys extraordinary on the proposal of Government, and to accept the accreditation of foreign diplomatic representatives;

b. To ratify international treaties once they have been duly approved;

c. To declare war in the case of actual or imminent aggression, and to make peace, on the proposal of the Government, after receiving the opinion of the Council of State and with the authorisation of the Assembly of the Republic or, if it is not in session and its immediate recall is not possible, of its Standing Committee.

Article 136
Promulgation and veto

1. Within 20 days after receiving a decree of the Assembly of the Republic for the purpose of its promulgation as law, or after the publication of a ruling of the Constitutional Court that none of the provisions of such a decree are unconstitutional, the President of the Republic shall either promulgate the instrument or exercise the right of veto in the form of a message, based on substantial grounds, requesting its reconsideration.

2. If the Assembly of the Republic confirms its vote by an absolute majority of the Members entitled to vote, the President of the Republic shall promulgate the instrument within 8 days after receiving it.

3. However, a majority of two-thirds of the Deputies present, where that majority exceeds an absolute majority of the Deputies entitled to vote, is required to ratify decrees that are in the form of organic laws or concern any of the following matters:
a. External relations;
b. The boundaries between the public, the private and the co-operative and social sectors, with respect to ownership of the means of production;
c. Regulation of elections provided for in this Constitution, where these do not review the form of organic law.

4. Within 40 days after receiving a decree of the Government for the purpose of its promulgation, or after the date of publication of a ruling of the Constitutional Court that none of the provisions of such a decree are unconstitutional, the President of the Republic shall either promulgate the instrument or exercise the right of veto by way of a written communication to the Government containing the reasons for the veto.

5. The President of the Republic also has a right of veto in the circumstances laid down in Articles 278 and 279.

Article 137
Failure to promulgate or sign

Failure by the President of the Republic to promulgate or to sign any measure specified in Article 134 (b) causes the measure to have no legal validity.

Article 138
Declaration of a state of siege or emergency

1. A state of siege or a state of emergency shall not be declared unless the Government has first been consulted and the authorisation obtained of the Assembly of the Republic or, if it is not in session and its recall is not possible, of its Standing Committee.

2. Where the authorisation is given by the Standing Committee of the Assembly, the declaration of a state of siege or a state of emergency shall be confirmed by a plenary sitting of the Assembly as soon as possible after it is in session.

SECTION IV
The Government

CHAPTER I
Function and structure

Article 182
Definition

The Government is the organ for the conduct of the general policy of the country and the superior organ of public administration.

Article 183
Composition

1. The Government comprises the Prime Minister, the Ministers, the Secretaries and the Under-Secretaries of State.

2. The Government may include one or more Deputy Prime Ministers.

3. The number of ministries and secretariats of State, their titles and powers and the mode of coordinating them shall be laid down, as appropriate to the case, in the decrees appointing the holders of the offices or by decree-law.

Formation and responsibility

Article 187
Formation

1. The Prime Minister shall be appointed by the President of the Republic after taking the opinion of the parties represented in the Assembly of the Republic and with due regard for the results of the general election.

2. The other members of the Government shall be appointed by the President of the Republic on the recommendation of the Prime Minister.

Article 188
Programme

The programme of the Government shall state its principal political objectives and the measures to be adopted or proposed in the various fields of governmental activity.

Article 189
Collective responsibility

The members of the Government are bound by the programme of the Government and by the decisions taken in the Council of Ministers.

Article 190
Responsibility of the Government

The Government shall be responsible for its actions to the President of the Republic and to the Assembly of the Republic.

Article 191
Responsibility of members of the Government

1. The Prime Minister shall be responsible to the President of the Republic and, within the terms of the political responsibility of the Government, to the Assembly of the Republic.

2. The Deputy Prime Ministers and the Ministers shall be responsible to the Prime Minister and, within the terms of the political responsibility of the Government, to the Assembly of the Republic.

3. The Secretaries and Under-Secretaries of State shall be responsible to the Prime Minister and to their respective Ministers.

Article 192
Consideration of the programme of the Government by the Assembly of the Republic

1. The programme of the Government shall be tabled before the Assembly of the Republic for consideration, in the form of statement made by the Prime Minister within a maximum of 10 days after appointment.

2. If the Assembly of the Republic is not in session, it must be convened by its President for this purpose.

3. The debate may not exceed 3 days, and until it is closed, any parliamentary group may propose the rejection of the programme and the Government may request the approval of a vote of confidence.

4. A rejection of the Government's programme requires an absolute majority of the Deputies entitled to vote.

Article 193
Request for vote of confidence

The Government may ask the Assembly of the Republic for a vote of confidence on a statement of general policy or on any matter of national interest.

Article 194
Motions of censure

1. The Assembly of the Republic may, on the proposal of one quarter of the Deputies entitled to vote or of any parliamentary group, pass a motion of censure on the Government with respect to the implementation of its programme or any matter of national interest.

2. A motion of censure shall not be considered until 48 hours after it has been tabled; the debate may not exceed 3 days.

3. If a motion of censure is not passed, its signatories shall not table another such motion during the same legislative session.

Article 195 Dismissal of the Government

1. The dismissal of the Government occurs when:
a. A new legislative term begins;
b. The President of the Republic accepts the resignation of the Prime Minister;
c. The Prime Minister dies or is suffering from a permanent physical incapacity;
d. Its programme is rejected;
e. A motion of confidence is not passed;
f. A motion of censure is passed by an absolute majority of the Deputies entitled to vote.

2. The President of the Republic may, after taking the opinion of the Council of State, dismiss the Government when necessary to safeguard the proper functioning of the democratic institutions.


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Compiled by John Pyke, with a little help from DiDa!. Last edited 24th December 2003.