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.

Poland – The government’s decreasing parliamentary majority and the potential for presidential activism

This post first appeared on www.presidential-power.com on 16 October 2013

In recent months the Civic Platform (PO) of Prime Minister Tusk has experienced a number of defections so that the majority of the coalition government with the Peasants’ Party (PSL) in the 460-deputy Sejm is now reduced to just 232 (for an analysis of these see Aleks Szczerbiak’s Polish Politics Blog). Decreasing parliamentary majorities are nothing unusual for Polish governments but they make governments vulnerable, not least to presidential activism.

Looking back: Decreasing majorities and presidential activism in Poland

Until Tusk’s election victory in 2007 and subsequent re-election in 2011, no Polish government had survived a whole legislative period (in fact, the average cabinet duration was 12 months, and no cabinet was in office longer than 2.5 years). Governments either suffered from mass defections [1] or lost their coalitions partner which also meant losing the majority in parliament. While the remaining parties in government could usually still count on the support of some defectors or their former coalition partners to pass legislation, the fact that presidential vetoes can only be overridden with a relative 3/5 majority (2/3 before 1997) put governments into the mercy of the head of state.

In the past, presidential activism usually increased when the government’s majority decreased. This is best exemplified by the governments of Jerzy Buzek. During the coalition of Buzek’s ‘Electoral Action Solidarity’ (AWS) with the ‘Freedom Union’ (UW) [12/1997-06/2000], the government disposed of 56% of seats in the assembly and President Kwaśwnieski vetoed 0.44 bills per month. However, when the UW left the coalition Buzek’s new cabinet [06/2000-10/2001] held only 40% in parliament. As defections continued, the president vetoed more frequently and now issued 1.2 vetoes per month. Yet as relations between president and government were cohabitational at the time, this case does not allow for drawing inferences about the current situation. More applicable in this respect are the governments under Jerzy Miller and Marek Belka between 2001 and 2005 who – like president Kwaśwnieski – belonged to the ‘Democratic Left Alliance (SLD). As could be expected, president Kwaśwnieski used his formal powers only infrequently. Nevertheless, after the SLD lost the PSL as coalition partner in early 2003 (and thus also the majority in the Sejm) informal pressure on the government mounted. The president could exert sizeable influence over government policy-making as the government would not have been able to oppose his vetoes (even with support of its former coalition partner and other government-‘friendly’ deputies). The president’s high public approval compared to the government’s lack of public support further increased this imbalance of power and amongst others allowed Kwaśwnieski to push through Belka as Miller’s successor in 2004.

Tusk, Komorowski and the potential for ‘friendly fire’

While examples from Poland’s recent political history can illustrate the problems now faced by the government of Prime Minister Tusk, his situation is different in so far as this time the majority is not in danger due to the loss of a coalition partner. In most votes, Tusk can also still rely on the deputies of ‘Your Movement’ (‘Twój Ruch’/TK – previously ‘Ruch Palikota’/Palikot Movement) but these are not enough to overturn a presidential veto. The remaining groups are also unlikely to come to the government’s rescue. Furthermore, president Komorowski’s approval ratings are at an all-time high while the government has continuously lost support since its re-election in October 2011. The president should have no interest to sabotage the government’s agenda and has held back with regard to domestic political debates (he has only vetoed 2 bills so far and none of them in the current legislative term). Nevertheless, the recent remarks about the president’s opposition to parts of the government’s overhaul of the pension system by one of his advisors might be evidence of Komorowski’s attempts to exploit the government’s vulnerability and influence policy decisions already in the drafting stages.


[1] The seat share of Hannah Suchocka’  government (7/1992-10/1993) dropped from 40% to 16% within just fourteen months.

Back at work: Why there could still be hope for the Hungarian presidency

When the Fidesz-led Hungarian government installed Pál Schmitt in the presidential office, many mourned the end of the presidency as an active check-and-balance in the political system. There is no doubt that Schmitt’s successor, János Áder, is as much convinced of the government’s policies as Viktor Órban himself. Nevertheless, he has recently discovered the possibilities of his office giving hope that the Hungarian presidency might once again become independent of parliament and government.

Presidential activism in Hungary, 1990-2012

Presidential activism in Hungary, 1990-2012

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