Austria & Germany – The pocket-veto power of Federal Presidents

This post first appeared on presidential-power.com on 24 July 2014

The majority of European presidents (as well as presidents in most other countries around the world) possess at least some role in the legislative process. Typically, this is the right to veto legislation, i.e. send bills back to parliament (usually with comments/sometimes with proposed amendments) where they are then discussed again. Two prominent exceptions are Austria and Germany where presidents do not formally have the right to refuse their signature.[1] Nevertheless, the interpretation of the respective constitutional stipulations is not clear and it can be argued that they possess a form of pocket veto.

Austrian president Heinz Fischer is the only Austrian president to date who has refused to sign a bill despite having no specific veto power |photo via wikimedia commons

 

At first glance, the stipulations of the Austrian and German constitutions about the final stages of the legislative process appear relatively simple and are almost identical – once a law has been passed it is signed and promulgated by the president (see table below) and the constitution do not foresee a presidential right to refuse the signature. Constitutional scholars in both countries have however argued that presidents may still refuse their signature under certain conditions, although the debate here has not reached a definite conclusion.

Austrian Constitution – Art 47 (1) The adoption of federal laws in accordance with the constitution is authenticated by the signature of the Federal President.
German Basic Law – Art 82 (1) Laws enacted in accordance with the provisions of this Basic Law shall, after countersignature, be certified by the Federal President and promulgated in the Federal Law Gazette.

The main point of contention is hereby the fact that both constitutions do not simply stipulate that presidents sign adopted laws but that they sign laws enacted/adopted in accordance with the respective constitution. For most scholars it is clear that presidents should be allowed to refuse signature to bills (or might pursuant to their oath of office to protect the constitution even have the duty to do so) if there were any procedural errors in any part of the legislative process. This could for instance be that the bill was not passed with the required majority or that the draft did not go through all three readings (correcting such procedural errors is interestingly also a not infrequent reason for ‘ordinary’ presidential vetoes in other European countries).

A significant minority of experts however argues that presidents do not only have the right to check the violation of procedural rules before they sign the bill (and refuse signature if they find any) and assert that the term ‘in accordance with the constitution’ needs to be interpreted more widely. Presidents should therefore also be allowed to review the constitutionality of bills with regard to further stipulations and only sign the bill if there are no ‘obvious’ violations (i.e. presidents and their administration should still not perform an in-depth legal analysis). In Germany, this group of scholars is further divided between a larger group that argues that the president should only check the bill for violations of the ‘fundamental rights‘ and a smaller group supporting an all-encompassing review power. Nonetheless, all scholars agree that presidents cannot refuse to sign bills for political reasons or non-legal objections to the content of legislation.

As there are no provisions that would allow presidents to return the bill to parliament (and for parliament to pass the bill again without introducing it again as a new draft), even the dominant ‘procedural’ interpretation of the respective stipulations can be seen as a form of pocket veto. From 1949 until now, presidents in both countries have only extremely rarely tried to exploit these constitutional ambiguities. German presidents have refused their signature on 6 occasions so far [2] and there has only been one case in Austria. In all cases, the refusal to sign the bills was clearly triggered by very obvious procedural errors or violations of basic constitutional principles. Nevertheless, the practical relevance should not be underestimated.

Although German presidents have only refused their signature under a bill once every ten years, the possibility of the president’s refusal to sign a bill accompanies most debates about controversial legislation, e.g. the recent passage of new regulations on the remuneration of members of the Bundestag. Even by delaying the signature under a bill and speculating about a pocket veto, presidents might able to extract concessions on related legislation in the future. In Austria, incumbent president Heinz Fischer was the first refusing to sign a bill, meaning that even after 60 years of constitutional practice in which presidents routinely played a subordinate role to the government president are able to curb out new powers.  Furthermore, similar to Germany the possibility of a pocket veto has also become part of Austrian debates about legislation.

For now, it is unlikely that parliaments or governments in either country will approach constitutional courts to have presidents’ compentencies clarified as it is possible that the court will provide unfavourable interpretation of the constitution and extend presidential powers. Nevertheless, at the same time the fact that a decision could also be taken in parliaments’ or governments’ favour should ensure that presidents do not use their power more frequently.

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[1] The Slovenian president also has no veto power, yet regulations differ from the Austrian and German examples.
[2] Tavits, Margit. 2008. Presidents and Prime Ministers. Do direct elections matter? Oxford: OPU. p 81.

Who’s in charge when the president is gone? Acting presidents in European republics

This post first appeared on presidential-power.com on 27 June 2014

The premature termination of a presidential term – be it by impeachment, resignation or death of the incumbent – is generally a rare phenomenon so that the respective regulations belong the constitutional provisions that are applied least often in political practice. Nevertheless, in recent years a number of European republics had to activate these stipulations, often for the first time. This post compares the regulations on acting presidents in European republics and discusses the consequences for the separation of powers and potential for conflict.

Acting German Federal President, Speaker of the Federal Council and Minister-President of Bavaria Horst Seehofer in 2012 | © German Presidential Office

The resignations of German Federal Presidents Horst Köhler in 2010 and Christian Wulff in 2012 presented the first instances in which speakers of the Bundesrat had to take over presidential duties. Similarly, the tragic death of Polish President Lech Kaczyński in 2010 was the first event in post-1989 Poland that required the Sejm Marshal (speaker of the lower house) to temporarily fulfil the role of president. In Romania, the two impeachment attempts against president Traian Basescu in 2007 and 2012 also meant that the speaker of the Senate acted as president while the population was consulted in referenda. On the other hand, when Slovak president Schuster needed to receive specialist treatment in an Austrian hospital in 2000, the speaker of parliament and Prime Minister fulfilled his duties in tandem.

The above examples show that European republics show a great variation in who becomes acting president. In fact, Bulgaria and Switzerland are the only European republics with a functioning vice-presidency (although due to the collegial nature of the Swiss executive its position/relevance differs significantly) [1] and In the remaining countries it is not always obvious who takes over presidential duties in the case of presidential impeachment, resignation or death. The default option is to temporarily devolve the function to a representative of parliament (in all but Bulgaria, Finland and Switzerland representatives of parliament are involved), yet even here differences exist that have consequences for the division of power.

In France, Germany, Italy and Romania the speaker of the second chamber of parliament. As – except for Italy – the government is not responsible to the second chamber this arrangement guarantees a mutual independence of acting president and other institutions. Even though Austria and Poland also have bicameral system, presidential duties here are performed by the speakers of the first chamber and thus by politicians that are more prominent in everyday politics and usually belong to the governing party. In Austria this is partly mitigated by the fact that the speaker and the two deputy speakers perform this role together, yet in Poland the stipulation proved to be controversial – not only because the generally more political role of the Polish Sejm Marshal but also because of the fact that acting president Komorowski was the government’s candidate in the presidential elections. In the Czech Republic, likewise a bicameral system, presidential duties are also fulfilled by the speaker of the first chamber, yet in cooperation with the Prime Minister.

 

Countries with unicameral systems cannot generally choose a more independent political candidate, yet as the examples of Iceland and Ireland show it is still possible to create less political alternative by pairing them (among others) with the Chairman of the Supreme Court in multi-member committees that jointly fulfil the position of acting president. Estonia shows another way of ensuring independence of the speaker of parliament as acting president in a unicameral system. The constitution foresees that speaker of parliament temporarily gives up their function to act as president and a new speaker is elected for that period to maintain a clear separation of powers.[2] Last, only Finland and Malta place the role of acting president in the hands of the Prime Minister which is even more exceptional when considering the great differences between the two political systems.

The comparison above has shown that variations in who becomes acting president do not vary according to the mode of presidential election or presidential powers and their origin often predate the current political system. An example for this are the regulations in the Czech Republic and Slovakia which both based their regulations on constitutional drafts that still were still designed for the countries’ functioning within a federal Czechoslovakia. Once the break-up was agreed and quick adoption of new constitutions was needed, the presidency was merely added and the actors that previously represented the republic at federation level became the designated acting presidents (Slovakia only introduced a co-role for the speaker of parliament in 1998 as it turned out that the constitution did not transfer enough power to the Prime Minister as acting president to maintain a functioning state after parliament failed to elect a new president).

The question of who is in charge when the president is gone might appear relatively insignificant at first glance given the rarity of early terminations of presidential terms or long-term absence of presidents during their term. Nevertheless, the different stipulations strongly affect the degree to which the presidency can or is likely to still fulfil its function as check-and-balance on other institutions while it is vacant. While this becomes more relevant the longer there is a vacancy in the presidential office, it still changes the balance of power within a political system already in the short term and therefore merits attention. For instance, during the one month that Slovak president Rudolf Schuster spent in hospital in Austria in 2000, Prime Minister Dzurinda and National Council speaker used their position as acting presidents to veto three bills to which Schuster had previously declared his opposition. Only shortly afterwards, the government majority passed the bills again and thus made sure that Schuster could no longer veto the bills or request a review before the constitutional court.

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[1] The Cypriot constitution also institutes a vice-presidency which is reserved for a Turkish Cypriot while the post of president is to be held by a Greek Cypriot. Initially a Turkish Cypriot vice-president served alongside a Greek Cypriot president, yet the vice-presidency has been vacant for about 50-40 years. The start date of the vacancy is difficult to establish – while Turkish Cypriots have not participated in government or parliament since the 1963 crisis, the title of vice-president appears to have been used by Turkish Cypriot leaders until the coup d’état in 1974.
[2] Estonian members of government are also required to give up their place in parliament upon appointment and another MP enters parliament in their place for the time of their appointment.

Kiss of death? – The failure of president-endorsed parties in Central and Eastern Europe

This post first appeared on presidential-power.com on 6 November 2013

In a recent article in the Prague Post titled ‘Presidents give parties “kiss of death”’ Daniel Bardsley draws attention to the fact that parties backed by former or current Czech presidents failed to succeed in parliamentary elections (president Zeman’s ‘Party of Citizens’ Rights – the Zemanites (SPOZ)’ only received 1.51% and the ‘Heads up’ party backed by former president Václav Klaus 0.41%). Motivated by the subsequent discussion between Seán Hanley, Robert Elgie and me on Twitter (click here to read) this post looks at the success and failure of parties affiliated with current and former presidents in Central and Eastern Europe.

This post will be the first post in an irregular series in which the contributors to this blog explore the relationship between presidents and their parties.

A seemingly common phenomenon
At first glance, the failure of parties affiliated with former or current presidents to gain significant electoral support appears to be a common phenomenon across Central Eastern Europe and the Baltic states. In addition to the Czech Republic (where one might additionally refer to Václav Havel’s half-hearted and subsequently unsuccessful backing of the Green Party), there are several other cases. In neighbouring Slovakia, the newly-formed ‘Party for Citizens’ Understanding’ (SOP) led by Rudolf Schuster won 8% in the 1998 elected, entered the government and saw its chairman elected president in the country’s first popular presidential elections. However, already four years later the party did not run again and dissolved a year later. The ‘Movement for Democracy’ (HZD) of Schuster’s successor, Ivan Gašparovič, fared even worse. Founded in 2002, the party never gained parliamentary representation, yet was surprisingly able to have its chairman elected president. While Gašparovič’s re-election campaign in 2009 was successful (not the least thanks to the support from the parties of the government coalition), HZD did not run again in the 2010 and 2012 parliamentary elections and recommended to vote for SMER-SD instead. In Poland, the ‘Non-partisan bloc for Support of Reforms’ (BBWR) founded to create a parliamentary representation for president Lech Wałęsa gained only 5.41% in the 1993 elections and received barely more than 1% of votes in 1997 (admittedly, Wałęsa’s presidency had ended in 1995 and he had no involvement in the subsequent campaigns). Further north in Latvia, there is another example of a failed president endorsed-party. Having served as president from 1993 to 1997, Guntis Ulmanis returned to politics in 2010 as chairman of the party alliance ‘For a Good Latvia’. The alliance won only 8% seats in the 2010 parliamentary elections and dissolved before the 2011 snap elections. One of the constituent parties ran again yet failed to win any seats.

Common problems?
Concluding that presidents are the key factor in causing a party’s demise based on the examples above would certainly not be a good idea. We have not yet looked at the successful examples of president-endorsed parties (more on these below) – or for parties not endorsed by presidents for that matter – and there is thus no variation on independent and dependent variables. But already a closer look at the mentioned cases shows that presidential endorsement is hardly the reason for the parties’ lack of success. In the case of the recent Czech parliamentary elections, the failure of SPOZ and ‘Heads up’ to succeed was interesting but – given previous opinion polls – not too surprising. Even though in existence since 2006 and having run under different names, ‘Heads up’ had never been a successful party (in fact, they failed to win seats in all national and European elections in which they participated). In addition, opinion polls never suggested that there was a chance for the party to succeed and reported it under the ‘other’ column. SPOZ on the other hand had had a greater chance of entering parliament (polls still showed it at 7.2% in August 2013) but only had a very limited policy programme (its most important point – the introduction of popular elections – had already been realised in 2012/2013). Similarly in Latvia, Guntis Ulmanis’ ‘For a good Latvia’ consisted of parties that already did not fare well in public opinion so that the meagre result in the 2010 elections and the subsequent failure to gain representation in 2011 (at this point Ulmanis had also already declared that he would not run for parliament again) was no surprise.

In the case of Lech Wałęsa’s BBWR, Schuster’s SOP and Gašparovič’s HZD, the reason for the party’s success seems to be rather neglect than outright endorsement. In Poland, the BBWR had been founded without formal involvement of Wałęsa and – in a very Wałęsa-typical whim – he retracted his official endorsement shortly before the elections (nevertheless, he managed to install two of its representatives in government). Gašparovič and  Schuster both quickly distanced themselves from their parties after their election as president. While Gašparovič remained at least formally faithful to the HZD while building new connections with SMER and a few other parties, Schuster almost immediately abandoned the SOP so that president-government relations from only two years after his election onwards can be described as cohabitational.

Success stories
It appears that the main problem for parties affiliated with presidents is thus that presidents chose to support (or continued to support) parties whose chances were – for whatever reason – already slim or  withdrew their support before the (next) electoral contest. To stay in the ‘kiss of death metaphor’, presidents chose to kiss a party that was already dead or made their exit before it died.

Nevertheless, there are also success stories of parties endorsed by former presidents. In Lithuania, the ‘Liberal Democratic Party’ founded in 2002 by former prime minister Rolandas Paksas not only managed to get Paksas elected president in 2004 but has also since been represented in parliament with a moderate contingent of deputies (2004-2008: 11 seats, 2008-2012: 15 seats, 2012-present: 11 seats) and is currently part of the governing coalition. In Latvia, the ‘Reform Party’ (initially ‘Zatler’s Reform Party’) of former president Valdis Zattlers (2007-2011) won 22 seats in the 2011 parliamentary elections making it the second largest party in the legislature (it has since lost 6 deputies and is only the third largest party group). It also participates in the government coalition.

Nevertheless, both cases also share a similarity that makes the drawing of definite conclusions difficult: by a significant share of voters both Paksas and Zatlers are likely seen as having been unrightfully removed from office. In the case of Paksas – who was impeached in 2004 – this is relatively self-explanatory as the constitutional court later ruled that his removal from office was unconstitutional. Zatlers on the other hand was simply not re-elected for a second term by parliament. Nevertheless, the main reason behind this was that Zatlers had initiated a referendum on the dissolution of parliament after the parliamentary majority refused to lift the immunity of an MP under investigation for corruption. While citizens greatly supported the dissolution (94.5% for dissolution, 44.5% turnout), MPs did subsequently not re-elect Zatlers.

While it is not clear which current and former presidents across the region will lend their support to parties future, at least one interesting case of a president-endorsed party is already on the horizon. Former Polish president Aleksander Kwaśniewski (1995-2005) is currently involved in building a coalition of left-wing parties for the 2014 European parliament elections under the name ‘Europa Plus’.

Austria and Germany – The role of presidents in government formation

This post first appeared on www.presidential-power.com on 7 October 2013.

In the last month both Germany and Austria elected new federal parliaments; however, in neither case did the outcome predicate a particular coalition between political parties. In Germany, the failure of the (economically and socially) liberal Free Democratic Party (FDP) to enter parliament has meant that the clear election winners – Angela Merkel’s Christian Democratic Union (CDU) and its Bavarian sister party, CSU – are left without their previous coalition partner. In Austria, Social Democrats and the People’s Party (ÖVP) received just enough votes to continue the ‘grand coalition’. Nevertheless, the ÖVP’s announcement to also conduct coalition talks with the right-wing Freedom Party (FPÖ) and eurosceptic ‘Team Stronach’has called its continuation – at least temporarily – into question.

Party leaders in both countries are still in the phase of exploratory talks, but Austrian president Heinz Fischer (SPÖ) and his German counterpart Joachim Gauck (non-partisan) have already met with party leaders to discuss the election results and hear about progress in forming a new government. This post will provide a brief comparison of the presidents’ powers in government formation after elections and assess the likeliness of presidential interference.

Formal powers

The powers of the Austrian president in the area of government formation are far-reaching and extend beyond those in other semi-presidential democracies. The constitution stipulates that the president appoints the Chancellor and on the Chancellor’s proposal other members of government. Due to Austria’s ‘negative parliamentarianism’ there is no vote of investiture for but the Chancellor and cabinet members are sworn into office by the president and then have to ‘present themselves’ to parliament within seven days.

In comparison, the German president’s formal powers are much more limited. The president proposes a candidate for Chancellor to parliament who then has to be elected by an absolute majority. If the president’s candidate is unable to garner support from a majority of deputies, it is parliament’s turn to propose and elect another candidate within the next fourteen days. Even if parliament fails to elect a new Chancellor in this time period, there is a final vote in which a candidate is elected by relative majority. Only then has the German president some leeway in decision-making as s/he can decide whether to appoint a candidate elected by relative majority (any candidate by absolute majority has to be appointed) or dissolve parliament.

The realities of the systems

As most other parliamentary and semi-presidential constitutions, the German Basic Law and the Austrian Federal Constitutional Law do not formally restrict presidents in their choice of candidate for the head of government. Nevertheless, both presidents are limited by the political realities of the systems.

In Austria, parliament can remove the government by the ways of a no-confidence motion at any time and the president thus needs to nominate a formateur who is able to negotiate a majority coalition. While the constitution does not specify a deadline until which the president has to nominate a new Chancellor, a government without a majority would likely be incapable of governing. Except for 1999, Austrian presidents have thus always nominated the representative of the largest party in parliament (although there have been about half a dozen cases where presidents opposed particular candidates for cabinet posts) and no government has had to face a no-confidence motion right after its appointment.

In Germany, presidents have also rather waited for the end of coalition negotiations between parties to then propose the candidate for Chancellor who has a majority behind them. Yet as parliament can elect its own candidate after the rejecting the president’s choice, the nomination is less consequential. Furthermore, the stipulation of a ‘constructive’ vote of no-confidence means that parliament can only dismiss a Chancellor/government by simultaneously electing new one – leaving the president to merely formalise parties’ actions.

Potential for presidential involvement

Without wanting to speculate about the outcome of government formation in Austria and Germany, the role of presidents will likely be equally marginal. While the Austrian constitution gives the president much more leeway in decision-making, the system has developed into a parliamentary one by all but name. President Fischer might stress the international outcry caused by the inclusion of the far-right FPÖ into the government in 1999 and 2003, yet any interference beyond this will be met with resistance from parties and citizens. Due to constitutional constraints and established political practice, President Gauck will also limit his involvement in the formation of a new German government to urging parties to quickly conclude their negotiations and to overcome the differences stressed during the electoral campaign.

More on the results of the German elections and the Austrian elections on the website of The Economist.

Presidents and Paupers: How much do CEE presidents earn?

– You might also be interested in my post on presidents’ salaries in Western Europe –

In times of austerity and crisis freezing or cutting public servants’ and politicians’ salaries has been a popular measure across Europe and presidents are not exempt form this trend (although they usually initiate these cuts themselves). Earlier this year, Finnish president Sauli Niinistö proposed to cut his salary by 25% and then Czech president-elect Milos Zeman announced to cut his own salary in order to lower public debt. The salary of Slovenia’s new president Borut Pahor was also cut (although not on his own initiative) so that he receives 17% less than his predecessor Danilo Türk. Unforgotten is also Ukrainian president Viktor Yanukovych who cut his salary in half.

gasparovic_basescuBut how much do CEE presidents actually earn? And how do their earnings relate to average income and other factors? Find answers to all these question in the figures below.

– You might also be interested in my post on presidents’ salaries in Western Europe –

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Comparing inaugural addresses of CEE presidents: Putting the country first?!

Yesterday, Barack Obama was sworn in for his second term as US president drawing thousands to the West front of the Capitol and his inaugural address (full text here) was awaited by citizens and journalists around the world alike. In CEE inaugural addresses are usually held in parliament (also due to the fact that half of the president are elected there by the deputies and not by popular vote) and while presidents’ words receive their fair share of media attention, it can hardly measure up to American proportions.

Bulgarian President Rosen Plevneliev during his inaugural speech on 19 January 2012 © Office of the President of Bulgaria

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Tweeting politicians in Central and Eastern Europe, Russia & Ukraine – Part 1: Presidents

Tweeting Politicians in Central and Eastern Europe - Part 1: Presidents

Since Barack Obama’s use of twitter and other social media has been cited as one of the reasons for his succesful campaign in 2008, more and more politicians (or their PR advisors) have discovered the power and advantages of delivering short, 140-character messages to their supporters. The digital revolution has also not left politicians in Central and Eastern Europe unaffected. In this two-part series of blog articles I will therefore survey whether and how politicians in CEE use twitter – and who you should follow. Continue reading