An Australian Republic - Thinking About the Drafting...
Extracts from the "Four Precedents", Topic 5:
Council of State, If Any
This is one of the supplementary pages to Thinking About the Drafting. The purpose of these pages is explained in Four Precedents - Introduction.
Ireland
Article 31.
1 There shall be a Council of State to aid and counsel the President on all matters on which the President may consult the said Council in relation to the exercise and performance by him of such of his powers and functions as are by this Constitution expressed to be exercisable and performable after consultation with the Council of State, and to exercise such other functions as are conferred on the said Council by this Constitution.
2 The Council of State shall consist of the following members:
i As ex-officio members: the Taoiseach, the Tánaiste, the Chief Justice, the President of the High Court, the Chairman of Dáil Éireann, the Chairman of Seanad Éireann, and the Attorney General.
ii Every person able and willing to act as a member of the Council of State who shall have held the office of President, or the office of Taoiseach, or the office of Chief Justice, or the office of President of the Executive Council of Saorstát Éireann.
iii Such other persons, if any, as may be appointed by the President under this Article to be members of the Council of State.
3 The President may at any time and from time to time by warrant under his hand and Seal appoint such other persons as, in his absolute discretion, he may think fit, to be members of the Council of State, but not more than seven persons so appointed shall be members of the Council of State at the same time.
4 Every member of the Council of State shall at the first meeting thereof which he attends as a member take and subscribe a declaration in the following form:
"In the presence of Almighty God I, , do solemnly and sincerely promise and declare that I will faithfully and conscientiously fulfill my duties as a member of the Council of State."
5 Every member of the Council of State appointed by the President, unless he previously dies, resigns, becomes permanently incapacitated, or is removed from office, shall hold office until the successor of the President by whom he was appointed shall have entered upon his office.
6 Any member of the Council of State appointed by the President may resign from office by placing his resignation in the hands of the President.
7 The President may, for reasons which to him seem sufficient, by an order under his hand and Seal, terminate the appointment of any member of the Council of State appointed by him.
8 Meetings of the Council of State may be convened by the President at such times and places as he shall determine.
Article 32.
The President shall not exercise or perform any of the powers or functions which are by this Constitution expressed to be exercisable or performable by him after consultation with the Council of State unless, and on every occasion before so doing, he shall have convened a meeting of the Council of State and the members present at such meeting shall have been heard by him.
[and the things the President may do only "after consultation with the Council of State" are:
Art 13.2.3, convene a meeting of either or both of the Houses of the Oireachtas;
Art 13.7:1, communicate with the Houses of the Oireachtas by message or address on any matter of nation or public importance; [or]
2, address a message to the Nation at any time on any such matter;
Art 22.2.3, appoint a Committee of Privileges to decide whether a Bill is or is not a Money Bill (which has consequences as to how long the Senate (Seanad) may delay it);
Art 24.1, abridge the period in which the Seanad must make its decision on a Bill (normally 90 days) on the grounds that the Bill is urgent; and
Art 26.1, refer a Bill to the Supreme Court for a decision as to whether it is repugnant to the Constitution.]
Article 14
4. The Council of State may by a majority of its members make such provision as to them may seem meet for the exercise and performance of the powers and functions conferred on the President by or under this Constitution in any contingency which is not provided for by the foregoing provisions of this Article.
Portugal
Council of State
Article 141
Definition
The Council of State is the political organ that advises the President of the Republic.
Article 142
Composition
The Council of State shall be presided over by the President of the Republic and is comprised of the following members:
a. The President of the Assembly of the Republic;
b. The Prime Minister;
c. The President of the Constitutional Court;
d. The Ombudsman;
e. The presidents of the regional governments;
f. Former presidents of the Republic elected under this Constitution and not removed from office;
g. 5 citizens appointed by the President of the Republic for the period corresponding to the President's term of office;
h. 5 citizens elected by the Assembly of the Republic, by a system of proportional representation, for the period corresponding to the legislative term.
Article 143
Installation and term of office
1. The installation of the members of the Council of State shall be performed by the President of the Republic.
2. Members of the Council of State specified in Article 142 (a) to (e) shall perform their functions for as long as they hold the specified office.
3. Members of the Council of State specified in Article 142(g) and (h) shall continue to perform their functions until the installation of their replacements.
Article 144
Organisation and operation
1. The Council of State has power to draw up its own Standing Orders.
2. Meetings of the Council of State shall not be public.
Article 145
Powers
The Council of State has powers:
a. To state its opinion on the dissolution of the Assembly of the Republic and of the organs of self-government of the autonomous regions;
b. To state its opinion on the dismissal of the Government in the circumstances specified in Article 195(2);
c. To state its opinion on the appointment and removal from office of the Ministers for the Republic for the autonomous regions;
d. To state its opinion on the declaration of war and the making of peace;
e. To state its opinion on the actions of the interim President of the Republic specified in Article 139;
f. To state its opinion on all other matters as are provided for in this Constitution, and, in general, to advise the President of the Republic on the performance of his or her functions at the request of the President.
Article 146
Statement of opinions
Opinions of the Council of State specified in Article 145(a) to (e) shall be stated at the meeting called for the purpose by the President of the Republic and shall be made public at the time that the actions to which they relate are taken.
Article 133
Powers [of the President] 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;
....
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;
.....
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;
Article 135
Powers in international relations
The President of the Republic has the following powers with respect to international relations:
......
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 139
Powers of an interim President of the Republic
1. An interim President of the Republic does not have any of the powers specified in Articles 133(e) and (n) and 134(c).
2. An interim President of the Republic shall exercise the powers specified in Articles 133 (b), (c), (f), (m) and (p), 134(a) and 135 (a) only after taking the opinion of the Council of State.
Article 195
Dismissal of the Government
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.
Article 230
Minister for the Republic
1. The State shall be represented in each autonomous region by a Minister for the Republic, who shall be appointed and removed from office by the President of the Republic on the recommendation of the Government after the opinion of the Council of State has been given.
Article 234
Dissolution of regional organs
1. The organs of self-government of the autonomous regions may be dissolved by the President of the Republic, after taking the opinion of the Assembly of the Republic and the Council of State, for serious actions contrary to this Constitution.
Article 292
Status of Macao
3. Upon the proposal of either the Legislative Assembly of Macao or the Governor of Macao, who shall take the opinion of the legislative Assembly of Macao, the Assembly of the Republic, which shall take the opinion of the Council of State, may amend or replace that statute. [ie, the statute of the territory of Macao]
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Compiled by John Pyke, with a little help from DiDa!. Posted 24th December 2003.