Australian Republic: Education, Information and Discussion

Background sketch.

During the WWII France was led by Marshall Petain’s Government who headed the so-called Vichy Government, an Administration that ruled essentially by decree and collaborated with the Nazis, who occupied much of France in 1940.

The first years following WWII were marred by considerable instability and economic hardship in France. The Fourth Republic (1946) came to an end in 1958 after several elections and Coalition changes. The Fifth Republic was largely the creation of General Charles de Gaulle who was its first President.  De Gaulle was leader of the Free French in WWII, who prepared for liberation during WWII together with Churchill and Roosevelt. De Gaulle certainly was a man with a vision and a national mission, though regarded as arrogant and idiosyncratic by many. He moved from London to Brazzaville (then French Equatorial Africa), later to Algiers (then also a French colony). He led a provisional Government in Algiers before re-entering France in the South at the head of the Liberation Force, in the second half of 1944.  By November 1944 the German forces had vacated France and De Gaulle, back in Paris, asked the French people if they wanted to go back to the Constitution of the Third Republic, which had been force since 1875. In a referendum the people declared that they wanted a new Republican Constitution. A Constitutional Committee delivered that Constitution for the Fourth Republic. By early 1946 De Gaulle withdrew from politics declaring that he disagreed with the new Constitution because its executive would not be strong enough to counter the anarchistic tendencies of several French political parties and the system as a whole.  It was not until the end of the Fourth Republic, 12 years later, that De Gaulle re-entered politics. There was a destabilising civil war in Algeria where a settler regime was strongly opposed to reforms and decolonisation.

De Gaulle managed to placate and control these tendencies once he was given a mandate to develop a new Constitution.  In it provision was made for the representation of French nationals in the overseas territories.  Most of the French colonies accepted that deal and representation was arranged in the Senate. Many of their representatives have been indigenous politicians of the former colonies. The Constitution of October 1958 did also create domestic stability and survived a quite dramatic domestic political upheaval in 1968 when the New Left presented its program. This Alliance of students and trade unions forced De Gaulle out of office but the Fifth Republican Constitution remained intact.

The current President is Nicolas Zarkozy (Segolene Royal opponent). Former President

Jaques Chirac

La Constitution Francaise (in English here).

In the Preamble the French people “solemnly proclaim their attachment to the Rights of Man and the principles of national sovereignty as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946.” There is also a statement about the virtue of these principles in relation to the self-determination of peoples in French overseas territories: “the Republic offers to the overseas territories that express the will to adhere to them new institutions founded on the common ideal of liberty, equality and fraternity and conceived with a view to their democratic development”

Article 1 stands by itself: “France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs.”

In Title 1 (Section 1) there are three Articles stating basic democratic rights and values as well providing clear recognition for the political parties in the system. After that, in Section 2, the President’s function and powers are outlined in detail. This in itself suggests the importance of the role of the President in the French Constitution.

Title (Section) II - The President of the Republic.

Art. 5

The President of the Republic shall see that the Constitution is observed. He shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the state  (emphasis added)

Art. 6

The President of the Republic shall be elected for seven years by direct universal suffrage. The manner of implementation of these articles shall be determined by an Institutional Act.

Art. 7 (part of)

The President of the Republic shall be elected by an absolute majority of the votes cast. If such a majority is not obtained on the first ballot, a second ballot shall take place on the second following Sunday. Only the two candidates who received the greatest vote in the first ballot, account being taken of any withdrawal of candidates with more votes, may stand in the second ballot.

Art. 8

The President of the Republic shall appoint the Prime Minister. He shall terminate the appointment of the Prime Minister when the latter tenders the resignation of the Government. On the proposal of the Prime Minister, he shall appoint the other members of the Government.

Art. 9

The President of the Republic shall preside over the Council of Ministers

Art 10

The President of the Republic shall promulgate Acts of Parliament within fifteen days following the final adoption of an Act and its transmission to the Government. He may, before expiry of this time limit, ask Parliament to reconsider the Act or sections of the Act. Reconsideration shall not be refused.

Art 11 (part of)

The President ...may, on a proposal from the Government when Parliament is in session or on a joint motion of the two assemblies, published in the Journal Officiel, submit to a referendum any government bill which deals with the organisation of public authorities, or with reforms relating to economic or social policy of the nation and to the public services contributing thereto, or which provides for the authorisation to ratify a treaty that, although not contrary to the Constitution, would affect the functioning of the institutions.

Art 12  provides for the dissolution of the National Assembly by the President, after consulting the Prime Minister and the Presidents of the (two) Assemblies.  After the general election has been held “no further dissolution shall take place within a year following this election” (parliamentary terms are not fixed). However, Art 16 states that “the National Assembly shall not be dissolved during the exercise of emergency powers”

Art. 13 states that the President shall sign the ordinances and decrees deliberated upon in the Council of Ministers. It also entitles him to make a number of high-level appointments of senior civil servants, ambassadors and government representatives in the overseas territories. The President is the commander-in-chief of the armed forces (Art. 15); he has the right to grant pardons (Art 17); he can send messages to the assemblies, which shall be read but not debated, and outside a session. Parliament shall be convened especially for this purpose  (Art. 18).

Title (Section)  III: The Role, Functions and Powers of the Government are described (part of)

Art 20

The Government shall determine and conduct the policy of the Nation. I shall have at its disposal the civil service and the armed forces. It shall be responsible to Parliament in accordance with the terms and procedures set out in art. 49 and 50.

Art. 21 (part of)

The Prime Minister shall direct the operation of the Government. He shall be responsible for national defence. He shall ensure the implementation of the legislation. Subject to Art. 13 he shall have the power to make regulations and shall make appointment to civil and military posts.

AUSTRIA

"Austria is a democratic Republic. Legislative power is in the hands of the people” according to Article 1 of the Federal Constitution.  The system of parliamentary democracy in Austria had been annulled in March, 1933. From March, 1938 onward Austria was occupied by Nazi Germany and thus prevented from existing as a sovereign nation. Up to April 1945 it was part of the “Third Reich”.  The Second Republic was established “by the political parties”, after the liberation of Austria in April 1945.

The “First Republic” was established in 1920. Its  Federal Constitution is to a great extent the work of Hans Kelsen, and expert on political and international law who defined democracy as “the closest possible approximation to the idea of freedom with the framework of social realities”. After the 1945 occupation the three major political parties agreed on a provisional government (headed by Karl Renner), which proclaimed Austria’s independence (April, 1945). The declaration contains the following two clauses:

Art. I: “The Democratic Republic of Austria is restored and is to be re-established in the spirit of the Constitution of 1920.

Art. II: “The annexation imposed upon the people of Austria in 1938 is declared null and void” (known as the “Anschluss”)

The symbolic head of the Austrian state is the Federal President. In May, 1992, the diplomat Thomas Klestil, candidate of the Austrian People's Party , was elected head of state and confirmed in office in the presidential elections of April, 1998. He succeeded Kurt Waldheim (1986 - 1992), a former junior SS Officer during the Nazi period, later Secretary-General of the United Nations.  The revelation of Waldheim’s wartime activities, in the latter period of his Presidency, was an obvious embarrassment to the UN and Austria. However, he was not forced out of office.

Since 1951 the head of state has been elected directly by the people. Voting in the presidential election is compulsory in those provinces, which have enacted legislation to this effect. The head of state holds office for six years. Re-election for a consecutive term of office is admissible only once.

The Federal President represents the Republic internationally; he/she convokes and prorogues Parliament and, subject to certain conditions, he/she can dissolve the Nationalrat (House of Representatives), although not more than once for the same reason. He/she appoints the Federal Chancellor, usually the leader of the strongest party, and, at the latter's suggestion (emphasis added), the members of the government. No one can become a member of the government unless he/she has the approval of the President.  Among the presidential duties are the signing of treaties, the swearing in of provincial governors and the verification of laws passed by Parliament. The head of state is also commander-in-chief of the Austrian Armed Forces. The President has mostly symbolic functions though and is expected to act on the advice of the Government.

In the event of any violation of the constitution the President is held legally responsible and he may be deposed by referendum upon the request of Parliament before his term of office expires.

(Quasi) Federal Government

The Nationalrat and the Bundesrat, the two houses of the Austrian Parliament, are the main legislative bodies of the Republic.  The Nationalrat approves federal legislation and also any newly formed government. A vote of no confidence on the part of the Nationalrat may mean the dismissal of the government or of individual members of the cabinet.

Along with the nine provincial legislatures and governments, the Bundesrat, in which representation is by province, reflects the federal element of the Austrian system of government. Virtually every draft law approved by the lower house must also be presented to the upper house. The Bundesrat can object to draft legislation by the Nationalrat and can send it back for review, but if the Nationalrat once again carries its original resolution, then the Bundesrat has to approve it (thus it cannot block it indefinitely).

The Nationalrat is elected for a four-year term by Proportional Representation on a basis of equal, direct, secret and personal suffrage. New legislation governing procedures for national elections came into effect in 1993. It provides for a three-tiered system for translating votes into parliamentary seats, retaining the proportional representation principle, and introduces a 4 % hurdle nationwide to avoid excessive political fragmentation. The goal of the new electoral law is to strengthen personal contact between voters and candidates by reducing the size of regional constituencies, and to enhance the voter's scope for influencing the actual composition of Parliament by means on an extended system of preference votes. The Nationalrat (lower house) comprises 183 delegates. The delegates of the Bundesrat (upper house) are sent by the legislatures of the individual provinces. The Bundesrat currently comprises 64 members. The number of delegates sent by each province depends on the size of its population.

Any Austrian entitled to vote has the right to initiate legislative proceedings by starting a referendum. Any total revision of the constitution must be submitted to a referendum by the entire nation. Most of the Basic rights and freedoms guaranteed by the present Austrian Constitution is based on the principles set out in the United Nations Declarations of Human Rights of 1948. However, extensive rights already existed in the 1920 Constitution and even before that in the Basic Law passed in 1867 under the Austro-Hungarian monarchy.

The Federal Government is headed by the Chancellor, who, along with the Vice Chancellor and the cabinet ministers, conducts all government affairs, which are not the responsibility of the President.  Austria has a quasi-federal system of government, which is deeply rooted in the country’s history. Each of the nine federal provinces has acquired its own specific character. Each province is administered by its own government, headed by a governor elected by the provincial legislature. Provincial elections are guided by the same principles as those for the Nationalrat.

Current President: Heinz Fischer (since 2004)

ICELAND

Background

The governmental and constitutional history of Iceland until the establishment of the Iceland Republic in 1944 can be divided into three periods:

1. The Settlement Period 874 - 930

2. The Free State 930 - 1262

3. The Period of Monarchy 1262 - 1944

The Settlement Period did not know a formal system of central government. Public administration was in the hands of local leaders or chieftain called godar (from godi), 39 in all, each one invested with limited secular and religious power. People were free to ally themselves with any godi. During the Free State period the population increased and a system of general or central government became more apparent. The first General Assembly was established in 930 called the Althingi, both a legislative and judicial body, lacking an executive branch.  This became its downfall and in the late 13th century the people of Iceland turned to the King of Norway to resolve their disputes.

In 1380 Norway and Denmark united under the Danish Crown and Iceland became part of the Kingdom, on condition that Iceland would have its own laws. However, this period ended in 1662 when a period of royal absolutism began and the Althingi’s legislative authority was usurped by the royals. In the early 19th century nationalism and liberalism spread over Europe. Many Icelanders were inspired by these ideas (as were the Danes!) and the campaign for independence was launched eventually ending with the establishment of the Iceland Republic in 1944.

The Constitution of 1944 has been amended five times, in 1959, 1968, 1984, 1991 and 1995. The historical roots can be traced back to the Danish Constitution of 1849, very much the product of the liberal ideas of the early 19th century and the renewal of Republicanism across Europe in 1848 particularly.  Roughly the Icelandic Constitution consists of two sorts of provisions, respectively describing the system of Government of the Republic and dealing with the fundamental rights of citizens. To the Icelandic mind the Constitution has three basic meanings:

1. A symbol of the nations full independence

2. Instrument securing basic human rights

3. Highest source of law

Some Articles will now be stated to understand the political system and the Role and Functions of the President.

Art. 1 states that Iceland is a Republic with a parliamentary government

Art. 2 states that “Althingi (Parliament) and the president of Iceland exercise jointly legislative power. The President and other governmental authorities in accordance with this Constitution and other laws exercise executive power. Judges exercise judicial power”

Art. 3  The President of Iceland shall be elected by the people.

Art. 4  Any person who is thirty-five years of age and fulfils the requirements necessary to vote in elections to Althingi, with the exception of the residence requirement, is eligible to be elected President

Articles 5 -  30 provide further provisions for the Presidency and the President suggesting that the President plays a significant, active role in the political system.

Art. 5 lays down that the President shall be elected by direct, secret ballot of those who are eligible to for vote in to Althingi. A Presidential candidate shall be proposed by not less that 1500 and not more than 3000 voters. The candidate who receives the most votes is duly elected.

Art. 6 states that the Presidential term is four years.

Art. 9 states that the President cannot be a member of Althingi or accept salaried employment.

Art. 11 states that “the President ,....is not responsible for executive acts ...and may not be prosecuted on a criminal charge except with the consent of Althingi. He/she can re be removed from office by a majority vote in a plebiscite called pursuant to a resolution by 3/4 of the Members of Althingi”.

Art. 13 states that “the President entrusts his authority to Ministers and the seat of Government is in Reykjavik”

Art. 14 states “that Ministers are responsible for all executive acts. The responsibility of Ministers is established by law”.

Art. 15:  The President appoints Ministers and discharges them.

Art. 16 (part of): The State Council is composed of the President of the Republic and the Ministers and is presided over by the President

However, in Art. 18 and 19 the necessity for signatures on “measures” and legislation of both the President and a responsible Minister is stated as a requirement.

Art. 21 deals with the Presidential power re. treaties with other states - but these also have to be approved by Althingi.

Art. 25 states that “the President may have bills and draft resolutions submitted to Althingi” (power of legislative initiative)

Art. 28 also provides for emergency (provisional) laws which the President can initiate but these have to be approved with six weeks by Althingi

In Chapter 3 of the Constitution details of the uni-cameral Althingi are provided.

There are 63 members elected by secret ballot on the basis of Proportional Representation. The Parliament is elected for four years. Most of the human rights are described in a very elaborate Chapter 7.

Current President: Olafur Ragnar Grimsson (ssince 1996, fourth term)

INDONESIA

1945 Indonesian Constitution + many amendments (relevant parts of).

Preamble (victory over colonialism explained and celebrated)

THE CONSTITUTION

CHAPTER  I   FORM OF STATE AND SOVEREIGNTY

Article 1

(1). The State of Indonesia shall be a unitary state in the form of a republic.

(2). Sovereignty shall be in the hands of the people and shall be fully exercised by the People's Consultative Assembly (MPR).

CHAPTER II 

THE PEOPLE'S CONSULTATIVE ASSEMBLY

Article 2

(1). The People's Consultative Assembly shall consist of members of the House of Representatives (DPR) augmented by delegates from regional territories and functional groups, in accordance with statutory regulations.

(2). The People's Consultative Assembly shall sit at least once every five years in the capital of the state.

(3). All decisions of the People's Consultative Assembly shall be taken by majority vote.

Article 3

The People's Consultative Assembly shall determine the Constitution and the State Policy Guidelines.

CHAPTER III

THE EXECUTIVE POWERS OF THE STATE

Article 4

(1). The president of the Republic of Indonesia shall hold the power of government in accordance with the Constitution.

(2) In exercising his duties, the president shall be assisted by a vice president.

Article 5

(1). The president shall hold the power to make statutes in agreement with the House of Representatives.

(2). The president shall determine government regulations necessary to implement the statutes.

Article 6

(NOTE: Articles 6 and 7 have been changed significantly  in 2001. The president and vice president were indirectly elected by the People's Consultative Assembly by majority vote. The current President Susilo Bambang Yudhoyono was directly elected in September, 2004)

Article 6a (part of)

(1) The President and vice-President shall be elected as a single ticket directly by the people

(2) Each ticket of candidates ….shall be proposed prior to the holding of the general election by the political parties or combination of political parties ……

Article 7 (a. b. and c.)

This article deals with dismissal and termination of office of the President in a detailed manner reflecting troublesome  experiences with a former incumbent

Article 10

The president shall hold the highest authority over the Army, the Navy and the Air Force.

Article 11

It is the president, with the agreement of the House of Representatives, who has the authority to declare war, make peace and conclude treaties with other states.

Article 12

It is the president, with the agreement of the House of Representatives, who has the authority to declare a state of emergency. The conditions governing and the consequences of the state of emergency shall be laid down by law.

CHAPTER IV

THE SUPREME ADVISORY COUNCIL

Article 16

(1). The composition of the Supreme Advisory Council shall be laid down by law.

(2). The council shall submit replies to issues raised by the president and shall have the right to submit proposals to the government.

CHAPTER V

MINISTERS OF THE STATE

Article 17

(1). The president shall be assisted by ministers of the state.

(2). These ministers shall be appointed and dismissed by the president.

(3).  These ministers shall lead the government departments.

THE HOUSE OF REPRESENTATIVES

Article 19

(1).  The structure of the House of Representatives shall be laid down by law.

(2).  The House of Representatives shall sit at least once a year.

Article 20

(1). Every statute shall require the agreement of the House of Representatives.

(2). Should a bill not obtain the agreement of the House of Representatives, that draft may not be submitted again during the same session of the House of Representatives.

Article 21

(1). Members of the House of Representatives shall have the right to submit bills.

(2). Should those bills, although passed by the House of Representatives, not be ratified by the president, they may not be submitted again during the same session of the House of Representatives.

Article 22

(1). Should exigency compel, the president shall have the right to determine government regulations in lieu of statutes.

(2). These government regulations must obtain the agreement of the House of Representatives during its next session.

(3). Should there be no agreement, these government regulations shall be revoked.

First amendment (part of)

(1) The President shall be entitled to submit bills to the DPR.

Article 7

The President and Vice President shall hold office for a term of five years and may subsequently be reelected to the same office for one further term only.

Article 17

(1) The President shall be assisted by State Ministers.

(2) State Ministers shall be appointed and dismissed by the President.

(3) Each State Minister shall be responsible for a particular area of Government activity.

Article 20

(1)  The DPR shall hold the authority to establish laws.

(2) Each bill shall be discussed by the DPR and the President to reach joint approval.

(3)  If a bill fails to reach joint approval, that bill shall not be introduced again in the same DPR term of sessions. 

(4)  The President signs a jointly approved bill to become a law.

Current President: Susilo Banbang Yudhoyono (since 2004), Previous: Megawati Sukarnoputri,

POLAND 

Poland - Constitution { Adopted by National Assembly on: 2 April 1997 }

Background sketch:

The Kingdom of Poland was formed in 1025, and in 1569 it cemented a long association with the Grand Duchy of Lithuania by signing the Union of Lublin, forming the Polish–Lithuanian Commonwealth.

The commonwealth collapsed in 1795, and Poland's territory was partitioned among the Kingdom of Prussia, the Russian Empire, and Austria. Poland regained its independence as the Second Polish Republic in 1918, after World War I, but was later occupied by Nazi Germany and the Soviet Union during World War II. Poland lost over six million citizens in World War II, emerging several years later as the People's Republic of Poland within the Eastern Bloc under Soviet influence.

During the Revolutions of 1989, communist rule was overthrown and Poland became what is constitutionally known as the "Third Polish Republic". Poland is a unitary state, made up of sixteen voivodeships (Polish: województwo). Poland is a member of the European Union, NATO, United Nations, World Trade Organization, and the Organisation for Economic Co-operation and Development (OECD).

Relevant sections of the Constitution and parts thereof.

Chapter I  The Republic

Extensive Preamble (see Richmond Constitution Finder in Links and Resources Page of this website for further details.

Article 1  

The Republic of Poland shall be the common good of all its citizens.

Article 2  

The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.

Article 3  

The Republic of Poland shall be a unitary State. 

Article 4  

(1) Supreme power in the Republic of Poland shall be vested in the Nation.

(2) The Nation shall exercise such power directly or through their representatives.

Article 5  

The Republic of Poland shall safeguard the independence and integrity of its territory and ensure the freedoms and rights of persons and citizens, the security of the citizens, safeguard the national heritage and shall ensure the protection of the natural environment pursuant to the principles of sustainable development.

 Article 6  

(1) The Republic of Poland shall provide conditions for the people's equal access to cultural goods which are the source of the Nation's identity, continuity and development.

(2) The Republic of Poland shall provide assistance to Poles living abroad to maintain their links with the national cultural heritage.

Article 10  

(1) The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers.

(2) Legislative power shall be vested in the House of Representatives (Sejm) and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in  courts and tribunals.

Chapter II  The Freedoms, Rights, and Obligations of Persons and Citizens (Very extensive provisions characterise this Constitution Ed.)

[Section I]  General Principles

Article 30 

The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.

Article 32

(1) All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities.

(2) No one shall be discriminated against in political, social or economic life for any reason whatsoever.

Article 33

(1) Men and women shall have equal rights in family, political, social and economic life in the Republic of Poland.

(2) Men and women shall have equal rights, in particular, regarding education, employment and promotion, and shall have the right to equal compensation for work of similar value, to social security, to hold offices, and to receive public honours and decorations.

Chapter V  The President of the Republic of Poland

Article 126

(1) The President of the Republic of Poland shall be the supreme representative of the Republic of Poland and theguarantor of the continuity of State authority.

(2) The President of the Republic shall ensure observance of the Constitution, safeguard the sovereignty and security of the State as well as the inviolability and integrity of its territory.

(3) The President shall exercise his duties within the scope of and in accordance with the principles specified in the Constitution and statutes.

 Article 127

(1) The President of the Republic shall be elected by the Nation, in universal, equal and direct elections, conducted by secret ballot.

(2) The President of the Republic shall be elected for a 5-year term of office and may be re-elected only for one more term.

(3) Only a Polish citizen who, no later than the day of the elections, has attained 35 years of age and has a full electoral franchise in elections to the House of Representatives (Sejm), may be elected President of the Republic. Any such candidature shall be supported by the signatures of at least 100,000 citizens having the right to vote in elections to the House of Representatives (Sejm).

(4) A candidate who has received more than half of the valid votes shall be considered elected President of the Republic. If none of the candidates has received the required majority of votes, then a repeat ballot shall be held on the 14th day after the first vote.

(5) The two candidates who have received the largest number of votes in the first ballot shall participate in a repeat ballot. If one of the two such candidates withdraws his consent to candidacy, forfeits his electoral rights or dies, he shall be replaced in the repeat ballot by the candidate who received the next highest consecutive number of votes in the first ballot. In such case, the date of the repeat ballot shall be extended by a further 14 days.

(6) The candidate who receives the higher number of votes in the repeat ballot shall be elected President of the Republic.

(7) The principles of and procedure for nominating candidates and conducting the elections, as well as the requirements for validity of the election of the President of the Republic, shall be specified by statute.

 Article 128 

(1) The term of office of the President of the Republic shall commence on the date of his assuming such office.

(2) The election of the President of the Republic shall be ordered by the Marshal of the House of Representatives (Sejm) to be held on a day no sooner than 100 days and no later than 75 days before expiry of the term of office of the serving President of the Republic, and in the event of the office of President of the Republic falling vacant - no later than the 14th day thereafter, specifying the date of the election which shall be on a non-working day and within a period of 60 days of the day of ordering the election.

 Article 129  

(1) The Supreme Court shall adjudicate upon the validity of the election of the President of the Republic.

(2) A voter shall have the right to submit a complaint to the Supreme Court concerning the validity of the election of the President of the Republic in accordance with principles specified by statute.

(3) In the event of the election of the President of the Republic being judged invalid, a new election shall be held in accordance with the principles prescribed in Article 128 (2) in relation to a vacancy in the office of President of the Republic.

 Article 130 

The President of the Republic shall assume office upon taking the following oath in the presence of the National Assembly:

"Assuming, by the will of the Nation, the office of President of the Republic of Poland, I do solemnly swear to be faithful to the provisions of the Constitution; I pledge that I shall steadfastly safeguard the dignity of the Nation, the independence and security of the State, and also that the good of the Homeland and the prosperity of its citizens shall forever remain my supreme obligation."

The oath may also be taken with the additional sentence "So help me, God."

Article 133

(1) The President of the Republic, as representative of the State in foreign affairs, shall:

1) ratify and renounce international agreements, and shall notify the House of Representatives (Sejm) and the Senate thereof;

2) appoint and recall the plenipotentiary representatives of the Republic of Poland to other states and to international organizations;

3) receive the Letters of Credence and recall of diplomatic representatives of other states and international organizationsaccredited to him.

(2) The President of the Republic, before ratifying an international agreement may refer it to the Constitutional Tribunal with a request to adjudicate upon its conformity to the Constitution.

(3) The President of the Republic shall cooperate with the Prime Minister and the appropriate minister in respect of foreign policy.

Article 134 

(1) The President of the Republic shall be the Supreme Commander of the Armed Forces of the Republic of Poland.

(2) The President of the Republic, in times of peace, shall exercise command over the Armed Forces through the Minister of National Defence.

(3) The President of the Republic shall appoint, for a specified period of time, the Chief of the General Staff and commanders of branches of the Armed Forces. The duration of their term of office, the procedure for and terms of their dismissal before the end thereof, shall be specified by statute.

(4) The President of the Republic, for a period of war, shall appoint the Commander-in-Chief of the Armed Forces on request of the Prime Minister. He may dismiss the Commander-in-Chief of the Armed Forces in accordance with the same procedure. The authority of the Commander-in-Chief of the Armed Forces, as well as the principle of his subordination to the constitutional organs of the Republic of Poland, shall be specified by statute.

(5) The President of the Republic, on request of the Minister of National Defence, shall confer military ranks as specified by statute.

(6) The authority of the President of the Republic, regarding his supreme command of the Armed Forces, shall be specified in detail by statute.

 Article 135

The advisory organ to the President of the Republic regarding internal and external security of the State shall be the National Security Council.

 Article 136

In the event of a direct external threat to the State, the President of the Republic shall, on request of the Prime Minister, order a general or partial mobilization and deployment of the Armed Forces in defence of the Republic of Poland.

 Article 144 

(1) The President of the Republic, exercising his constitutional and statutory authority, shall issue Official Acts.

(2) Official Acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts responsibility therefor to the House of Representatives (Sejm).

(3) The provisions of (2) above shall not relate to:

1) proclaiming elections to the House of Representatives (Sejm) and to the Senate;

2) summoning the first sitting of a newly elected House of Representatives (Sejm) and Senate;

3) shortening of the term of office of the House of Representatives (Sejm) in the instances specified in the Constitution;

4) introducing legislation;

5) proclaiming the holding of a nationwide referendum;

6) signing or refusing to sign a bill;

7) ordering the promulgation of a statute or an international agreement in the Journal of Laws of the Republic of Poland (Dziennik Ustaw);

8) delivering a Message to the House of Representatives (Sejm), to the Senate or to the National Assembly;

9) making a referral to the Constitutional Tribunal;

10) requesting to the Supreme Chamber of Control to carry out an audit;

11) nominating and appointing the Prime Minister;

12) accepting resignation of the Council of Ministers and obliging it to temporarily continue with its duties;

13) applying to the House of Representatives (Sejm) to bring a member of the Council of Ministers to responsibility before the Tribunal of State;

14) dismissing a minister in whom the House of Representatives (Sejm) has passed a vote of no confidence;

15) convening the Cabinet Council;

The restoration of parliamentary democracy in Italy, following the surrender of Mussolini’s Fascists, began in mid-1945. It took more than two years to work out a very democratic Constitution in which the human, political, social and economic rights of individuals, workers, women and ethnic minorities are laid down in considerable detail. The creation of regional governments was also outlined although the actual implementation of the regionalisation of Italy had to wait until 1972. Italy has a bi-cameral system of National Government and a Presidency which is symbolic. The President is elected by politicians of both houses of parliament, plus a number of regional representatives. Any citizen over 50 can be a candidate for the Presidency. The Constitution does not detail the nomination process however Italian Presidents have invariably been well known citizens of stature who have served with distinction in public life.  Until quite recently Italy has elected its parliamentarians on the basis of proportional representation which, in a series of referendums has been modified and partly replaced by a first-past-the-post voting system. The instability of Italian Governments since 1947 (and prior to Mussolini) has been proverbial and it was hoped that a 1999 change to the electoral system would rectify this.  However, many informed commentators are of the view that this instability was not primarily due to the electoral system, if at all. Below follow relevant sections of the December, 1947 Constitution, as amended. Although the President of the Republic has significant symbolic powers, the business of Government is carried out by the Council of Ministers headed by the President of the Council (the Prime Minister) and the Parliament.

Part II: Organization of the Republic

Title II  - The President of the Republic

Article 83 (Election of the President)

(1) The President of the Republic shall be elected by Parliament in joint session of its members.

2) Three delegates from every Region shall take part in the election; they shall be elected by each Regional council in such a manner as to ensure the representation of minorities. Valle d'Aosta shall be represented by only one delegate.

(3) The election of the President shall take place by secret ballot with a majority of two-thirds of the assembly. After the third ballot a majority of the members of the assembly shall be sufficient.

Article 84 (Eligibility, Incompatibility, Allowance)

(1) Any citizen past fifty years of age who enjoys civil and political rights may be elected President of the Republic.

(2) The office of President of the Republic is incompatible with any other.

(3) Allowance and endowments of the President are established by law.

Article 85 (Presidential Term)

(1) The Presidential term shall be seven years.

Article 87 (Presidential Duties) (part of)

(1) The President of the Republic is the head of the State and represents the unity of the Nation.

(2) The President may send messages to Parliament.

(3) He shall call the elections of the two Chambers and fix the date of their first meeting.

(4) He shall authorize the submission to Parliament of bills proposed by the Government.

(5) He shall promulgate laws and issue decrees having the value of law, and Government regulations.

(6) He shall call a referendum in such cases as are laid down by the Constitution.

Article 88 (Dissolution of the Chambers)

(1) The President of the Republic may dissolve one or both Chambers having consulted their Speakers.

(2) He may not exercise this power during the last six months of his term of office, unless these six months coincide entirely or in part with the last six months of the term of office of either Chamber or both.

Article 89 (Countersignature)

(1) No act of the President shall be valid unless it is countersigned by the Ministers who have submitted it and who assume responsibility for it.

(2) Acts having the value of law and such other acts as are laid down by law shall be further countersigned by the President of the Council of Ministers.

Title III : The Government

Section I:  The Council of Ministers

Article 92 (Executive Power)

(1) The Government of the Republic consists of the President of the Council (Prime Minister) and of the ministers, which jointly constitute the Council of ministers.

(2) The President of the Republic appoints the President of the Council and, on his advice, the ministers.

Article 95 (Responsibilities)

(1) The President of the Council shall conduct the general policy of the Government and shall be responsible for it. He shall ensure the unity of general political and administrative policies, promoting and coordinating the activities of the ministers.

(2) Ministers shall be jointly responsible for the decisions of the Council of ministers, and individually for those of their own ministries.

(3) The law shall establish the regulations concerning the functioning of the Presidency of the Council and fix the number, responsibilities and organization of the ministries.

GREECE

Greek political history since the beginning of WWII has been quite dramatic, somewhat unstable but certainly colourful. The Greeks had been overrun by the Nazis in 1941. A ruthless occupation regime inflicted starvation and heavy casualties. Towards the end of the war the society had polarised into royalist and communist factions which resulted in a civil war that lasted until 1949.  Further loss of life and widespread homelessness resulted in many Greeks migrating to Australia, the US and Canada, estimated to total around 1 million.  The Monarchy prevailed during the initial post-war period but new instability emerged when it was overthrown by a group of colonels in 1967. The junta proved politically incompetent and maintained a brutal, repressive regime in Greece while also causing a major international dispute with the Turks in Cyprus. Power was handed back to civilians in 1974 and a plebiscite held on the question of the Monarchy in November, 1974. The Greek people voted for a democratic, parliamentary Republic instead with a President as Head of State. The President and Parliament have joint legislative power although both the executive and legislative powers of the President are quite limited. The first Republican election in 1975 brought the right-wing New Democracy party to power but during the 1980s Greece had a social-democratic government under Prime Minister Andreas Papandreou (leader of the Pan-Hellenic Socialist Movement, PASOK) who became embroiled in various scandals.  In 1990 Prime Minister  Mitsotakis attempted to bring in major economic reforms. However, he lost the election of 1993 after which the ageing Papandreou returned with a similar program until his hospitalisation in 1996. He was succeeded by Simitis, another economist who brought in new tough measures to revive an ailing economy. In a constitutional sense Greece appears to have adapted to the Republican style quite well although Papandreou’s cronyism and nepotism was a disturbing feature. However, the long serving former Prime Minister has been cleared of all charges against him.  Below some selected Parts and Articles of the Greek Constitution.

PART THREE: Organisation and Functions of the State

Section I: Structure of the State

Art. 26

1. The legislative powers shall be exercised by the Parliament and the Presidents of the Republic.

2. The executive powers shall be exercised by the President of the Republic and the Government.

Section II: The President of the Republic

Chapter I:  Election of the President

Art. 30 (part only)

1. The President of the Republic shall regulate the function of the institutions of the Republic. He shall be elected by Parliament for a term of five years, as specified in articles 32 and 33.

Art. 31

To be eligible for election to the presidency, a person must be a Greek citizen for at least five years, be of Greek descendence from the father’s line, have attained the age forty and be legally entitled to vote.

Art. 32 (part only)

1. The President shall be elected by the Parliament through vote by roll in a special session called for this purpose by the Speaker, etc.

2.  In all cases, the election of a President shall be made for a full term.

3.& 4. The person receiving a two-thirds majority of the total number of Members of Parliament shall be elected President of the Republic.

Chapter II: Powers and liability from the acts of the President.

Art. 35

1. No act of the President of the Republic shall be valid nor be executed unless it has been countersigned by the competent Minister who, by his signature alone shall be rendered responsible, and unless it has been published in the Government Gazette.

2. By exception, the following acts shall not require countersignature:

a.   The appointment of the Prime Minister.

c.   The dissolution of the Parliament (in specific circumstances)

SWITZERLAND

The Federal Constitution of the Swiss Confederation was originally enacted in May, 1874. It is a very detailed Constitution and one finds many functions of the state and rights of the citizens listed and explained. Many clauses would often not be found in unitary Constitutions and not even in some Federal Constitutions such as in the US, Australia and Germany.  The beginning of the Constitution concentrates on military preparedness to defend the “fatherland” and the maintenance of internal peace between the 23 Cantons. However, for our purposes the institutions and the constitutional organisation of the remarkably viable and industrious Swiss state and, especially, the role of the Federal Council, is the focus of attention here. The annually rotating Presidency is particularly interesting. There are many other unique aspects of the Swiss Constitution, eg. the extensive right of the people to initiative changes, including changes to the constitution,  by petition.  Although called a “Confederacy”, suggesting that the emphasis is on maintaining the sovereignty of the orginal Cantons, federal government experts generally regard Switzerland as a true federation both in the theory and, especially,  the practice of Government  (eg. Wheare, K. C., 1963). Switzerland has a proportional representation system and this is reflected also in the Federal Council, the governing body. It is especially instructive for Australia to consider this arrangement,

 Art. 174 Federal Council

The Federal Council shall be the supreme governing and executive authority of the Confederation.

Art. 175 Composition and election

1 The Federal Council shall have seven members.

2 The members of the Federal Council shall be elected by the Federal Assembly following each general election to the National Council.

3 They shall be elected for a term of office of four years from all the Swiss citizens who are eligible for election to the National Council.1

4 In electing the Federal Council, care must be taken to ensure that the various geographical and language regions of the country are appropriately represented.2

Art 176 Presidency

1 The President of the Confederation shall chair the Federal Council.

2 The President and the Vice-President of the Federal Council shall be elected by the Federal Assembly from the members of the Federal Council for a term of office of one year.

3 Re-election for the following year is not permitted. The President may not be elected Vice-President for the following year.

Art. 177 Principle of collegiality and allocation to departments

1 The Federal Council shall reach its decisions as a collegial body.

2 For the purposes of preparation and implementation, the business of the Federal Council shall be allocated to its individual members according to department.

3 Business may be delegated to and directly dealt with by departments or their subordinate administrative units; in such cases, the right to legal recourse shall be guaranteed.

GERMANY

Background notes

The “Basic Law” for the Federal Republic of (West) Germany was enacted in May, 1949.  It represents a catalogue of fundamental norms setting out the conditions under which the state derives authority; it contains rules organising and determining procedures for the exercise of that authority and recognises individual freedoms as limits to it.  Initially the Basic Law only applied to the Federal Republic of West Germany, the territory occupied by the US, Britain and France following the surrender of the Nazis.  East Germany, the Russian sector, developed its own Constitution for the German Democratic Republic, also in May, 1949. Both states enjoyed only limited sovereignty until 1954. Partial sovereignty was then restored with minor exceptions.  After German reunification, by the Reunification Treaty of September, 1990, full sovereignty returned to Germany. Essentially, the East German state acceded to the Federal Republic and shelved its own Constitution. The German Federal Constitution provides for a two-chamber parliament: The Bundestag (Lower House) fully elected by popular vote, the Bundesrat (Upper House) appointed by the State Governments (Laender) and the Presidency. Furthermore, there are two types of High (Supreme) Courts: a separate Constitutional Court (interpreting the Basic Law) and specialised High Courts in the functional areas of Justice, Administration, Finance, Labor and Social Jurisdiction

The Presidency

Spath (1996), a former high ranking civil servant in the Presidential Office and legal adviser to six Presidents, describes the Presidency as the “weakest of Germany’s five major constitutional entities” and that “it has grown politically weaker, relatively speaking, since 1949”. The position is largely a symbolic one, which is not at all surprising after the Weimar debacle where the sharing of power between the “Reich” President and the “Reich” Chancellor caused serious problems. Furthermore, although 80% of the German voters are now in favour of directly electing their President, in 1949 after the disastrous WWII, the Parliamentary Council preparing the new 

Constitution, and most Germans, did not want to know about that. Spath “the Parliamentary Council opted for indirect election because it was convinced that  abuse of dictatorial power by the “Reich” President during Weimar had been rendered easier by his direct popular election. “

The reason why today’s German voters prefer Direct Election is the result of “widespread, current mistrust of rule by the political parties” as well as satisfaction with the performance of most Presidents. There are calls that the President be given greater constitutional powers. Ironically, it is usually forgotten in the debate on this question that every President had previously held important positions in one of the parties! The Basic Law’s intention was to keep the President out of politics but all Presidents have chafed at the limitations imposed on them by the powerlessness of the office. All have tried to exert some influence on political trends, eg. Heuss (the first), Luebke (the second) and especially von Weisaecker (the sixth). However, this has not resulted in major problems.

The Federal President is elected without debate by a special Federal Convention (Bundesversammlung). This is a unique body which meet once every five years for this particular purpose only. The Convention comprises the 662 directly elected members of the Bundestag (by proportional representation) and the sixteen states (Laender) also send 662 delegates, making a total of 1324 voters. The state parliaments vote for the Convention members nominated by their parliamentary groups. Thus these delegates mirror the party landscape in the state parliaments.  Anyone eligible to be elected to the federal parliament is eligible also to be elected Convention delegate. Spath: “The parties like to include celebrities such as ski and soccer stars, astronauts, actors, writers, philosophers, scientists, businessmen and businesswomen, trade union leaders, etc” (they are in the minority though, most are politicians). Any German eligible to vote for the federal parliament is eligible to also stand for election as Federal President and should be at least 40 years of age. Any Convention member may make a nomination for the Presidency. The person receiving the votes of a simple majority of the total number of Convention members is elected. If no majority is obtained by any candidate on the first two ballots, the candidate who receives a plurality of votes on the third ballot is elected.  Thus a former President, Roman Herzog was elected in 1994 on the third ballot with 696 votes out of 1320 valid votes. Johannes Rau succeeded him, in 1999. The current President Horst Koeler was elected in 2004.

The President is not part of the Government and is not responsible to parliament either for execution of his official duties or of government policy. The President sometimes plays an independent role as umpire when a new Government is being formed after national elections. An important role is to symbolize and embody the unity of the state. Representing Germany to foreign countries as Head of State has been particularly important for Germany to reestablish links with the international world in the post-WWII era.  Spath regards providing “moral leadership on problems which ...deserve greater attention than is being given by the public, government or parliament” as a third most difficult and most political role for the President. The art is to define issues in such a way that they can be widely understood. While a symbolic President cannot bring about solution in this constitutional system, he or she can hint at them. If he or she picks the topics carefully, the President can have considerable influence. “Von Weisaecker’s May 8, 1985 address to the Bundestag in which he called on his fellow citizens to face their Nazi past unflinchingly, ranks as the greatest and most influential speech in post-war German history. Roman Herzog’s support of federalism and understanding of for the legitimacy of regional differences in German have resonated widely.”

The President’s election, qualifications, functions and role is described in the short Chapter V of the Basic Law.  Article 58 states that “Orders and directions of the Federal President shall require for their validity the countersignature of the Federal Chancellor (the Prime Minister) or of the competent Federal Minister - with the exception of the appointment or dismissal of the Federal Chancellor, and the dissolution of the Bundestag under Art. 63.”

Article 63 provides for the election of the Federal Chancellor as Head of the Government on the proposal by the President. Election and subsequent appointment requires majority support by the Members. If unsuccessful, the Bundestag can organise its own second election. The Basic Law provides for a clear procedure should the proposed candidate not receive a majority. It is possible for the President to appoint a candidate who receives the largest vote in a third ballot, or call for new elections within seven days.  This Article appears to provide a solution for a deadlocked situation.

Articles 67 and 68 also regulate the respective powers of President and Government in a unique way

Article 67 (constructive vote of no confidence)

(1) The Bundestag may express its lack of confidence in the Federal Chancellor only by electing a successor by the vote of a majority of its Members and requesting the Federal President to dismiss the Federal Chancellor. The Federal President must comply with the request and appoint the person elected.

Article 68 (Vote of confidence; dissolution of Bundestag)

(1) If a motion of the Federal Chancellor for a vote of confidence in not supported by the majority of the Members of the Bundestag, the Federal President, upon the proposals of their Federal Chancellor, may dissolve the Bundestag within 21 days. The right of dissolution shall lapse as soon as the Bundestag elects another Federal Chancellor by the vote of the majority of its Members.

__________________________________________________________________________________

Malta: a Unitary State with a Symbolic President.

Czech Republic: Unitary with a strong Executive Presidency?

South Africa: An unusual case - A major Reconstruction after Apartheid. Presidential or not? Federal or unitary?

Hungary: another new Republic. Unitary, with a symbolic President

___________________________________________________________________________________.

MALTA

Background

Malta has a very interesting history. Situated in the Mediterranean, closer to North Africa than to Italy, it is nevertheless very much part of (Southern) Europe. Malta played a heroic part in the War II campaign against the Nazis and Fascists. It escaped occupation and managed to keep the important Dry Docks going for the Allies’ Navies benefit. After the War the entire Island was awarded the George Cross for bravery. Malta suffered serious damage in numerous air raids.  After the WWII many Maltese migrated to Australia. There are now more people of Maltese descent living in Australia than in Malta (around 400,000). There are many signs in Malta that it has strong Australian connections.  The current President is Mr. George Abela

Malta became an Independent country in 1964 and remained a member of the British Commonwealth (many Brits still spent holidays on Malta in the European summer). The popular Labour leader Mintoff was elected as its first Prime Minister. It became a Republic in 1974. Malta adopted the Westminster style of Government and, like Ireland, combined it with a President who performs a similar role as their former Governor-General. It is essentially a symbolic Presidency. Only three clauses in the Constitution are specifically devoted to the Role and Position of the President.  Westminster Constitutional Conventions appear to continue to operate. Malta has a fairly stable two-party system. Malta implemented the Schengen Agreement on December 21, 2007

(borderless zone of now 25 EU countries - started with five in 1985). 

In Chapter V the three clauses are 49, 50 and 51

Section 49 (part of) describes the establishment of the Office of President.

(1) “there shall be a President ...who shall be appointed by Resolution of the House of Representatives”.

(2) A person shall not be qualified if ....

a. he is not a citizen of Malta;

b. holds or has held the office of Chief Justice or other Judge of Superior Courts; or

c. is disqualified for a number other disqualifications explained in the Constitution in other Sections

(3) The term of office is laid down in this sub-clause as five years and the House of Representatives is given the power to remove the President for “infirmity of body” or “misbehaviour”

Section 50 lays down the procedures for an Acting President should the President be abroad or if he Office is temporarily vacant for other reasons.

Section 51 deals with the Oath to be taken by the President when assuming office as “set out in the Second Schedule of the Constitution”, before the House of Representatives.

In Chapter VI the establishment of Parliament is described:

Section 52

There shall be a Parliament of Malta which shall consist of the President and a House of Representatives.

Section 53 describes how the Parliament shall be elected. The electoral system is based on Proportional Representation with electorates returning “not less than five and not more than seven” members.

THE CZECH REPUBLIC

Background

Czechoslovakia split into the Czech Republic and Slovakia after the end of the Cold War and the re-unification of East and West Germany. The Czech Republic came into being when the Czech National Council adopted the Constitution on behalf of the citizens of Bohemia, Moravia and Silesia (1992). Its first President was Dr. Vaclav Havel.  In 1968, the then Czech leader Alexander Dubcek made a name for himself when he challenged the Soviet regime to liberalise communism. This call was knocked on the head by repressive measures, as had been done earlier in Hungary in 1956. Dubcek was “sent to Coventry” but he later played a significant role in the events leading up to the demise of the Soviet occupation and the end of the Cold War. The first  President was Vaclav Klaus. 

In Chapter 1 14 Articles establish the sovereignty of a democratic, unified state, eg.

Art.  2 states that

“all power derives from the people; they exercise this power by means of their legislative, executive and judicial bodies and that “the state’s power serves the citizens” and that “every citizen may do whatever is not forbidden by law and no one may be forced to do what the law does not enjoin”

Art. 3

Part of the constitutional order of the Czech Republic is the Charter of Fundamental Rights and Freedoms.

Art 5

The political system is based on the free and voluntary foundation and free competition of political parties respecting fundamental democratic principles and rejecting force as a means for asserting their interests.

Art. 6

Political decisions shall derive from the will of the majority expressed through free voting. Minorities shall be protected by the majority in decision-making.

In Chapter 2: Legislative power and the organisations of the system are outlined.

Art. 15

(1) Legislative power in the Czech Republic shall be vested in the Parliament

(2) Parliamentary is composed of two chambers, the Chamber of Deputies and the Senate

Art 16

(1) The Chamber of Deputies has 200 deputies, elected for a term of four years.

(2) The Senate has 81 senators, elected for a term of six years. One third of the senators is elected every second year.

Art. 18 (part of)

(1)  Elections to the Chamber of Deputies shall be held on the basis of universal, equal and direct suffrage by secret ballot, according to the principles of proportional representation.

(2)  Elections to the senate shall take place on the basis of universal, equal and direct suffrage by secret ballot, on the basis of the majority system.

In Art. 19 the minimum ages for election are stated: 21 for the lower house and 40 (!) for the senate. The President is mentioned for the first time in Art. 22 which states that the President and some other high office bearers, like judges, cannot be deputies or senators.

Article 35 is concerned solely with some Presidential functions.

(1) The President of the republic can dissolve the Chamber of Deputies if:

a. The Chamber of Deputies passes a vote of non-confidence in a newly appointed government, whose premier was appointed by the President of the republic on the suggestion of the chairman of the Chamber of Deputies.

b. the Chamber of Deputies fails to decide within three months on a government bill with the discussion of which the government links the question of confidence.

c.  a session of the Chamber of Deputies is adjourned for a period longer than admissible.

d. the Chamber of Deputies has not reached a quorum for a period longer than three months, although its session was not adjourned and although it was repeatedly called to session during this period.

(NOTE: These functions are essentially aimed at breaking deadlocks and non-performance of the lower house).

Art. 50 states that the President can return an adopted law, except a constitutional law, giving explanation

within 15 days of the day of its advancement. The Chamber of Deputies shall then vote on the rejected law once again. If the Chamber re-approves by an absolute majority the law is promulgated.

(Note: Thus the  President can delay and persuade not to pass a controversial law, but he/she cannot stop it.

Chapter three of the constitution deals exclusively with Executive Power, starting with the President

(Arts. 54 to 66) suggesting it to be an important Office within the Executive Branch of Government.

Art 54  states that “the President is Head of State; that he/she is elected by Parliament at a joint session of both chambers; and that he/she is not accountable for the discharge of his office.

Art. 55 lays down the term of office: Five years

Art. 57 states that a citizen eligible to the Senate may be elected President; but no one can be elected for  more than two consecutive terms.

Art 58 explains at length the nomination and election process of the President

(1) No less than ten deputies or ten senators are entitled to nominate a candidate.

(2) A candidate who received an absolute majority of votes of all deputies and an absolute majority of votes of all senators is elected president

(3) If no candidate succeeds a second round of election will be held within 14 days.

(4) The candidate with the highest number of votes in the lower house and the candidate with the highest vote in the upper house advance to the second round.

The main point is that the President is elected by Parliament.

Art 62 list most of the functions which are essentially symbolic (emphasis added)

Art 63 outlines the President’s functions in international affairs, appointment of ambassadors, receiving diplomats, negotiating and concluding treaties, granting amnesty. However, all these are also essentially symbolic powers, carried out on behalf of the Government because:

Art. 63 (3) states: Decisions of the President of the republic issues in accordance with Paragraphs 1 & 2 require a signature of the Premier, or a member of the government entrusted by the Premier, to come into effect.

63 (4) The Government is responsible for decisions of the President of the republic which require the signature of the Premier or a member of the government authorised by the Premier.

In a subsequent section of the constitution headed “The Government” this is made clearer:

Art. 67

(1) The government is the supreme body of executive power.

(2) The government is composed of the Premier, the deputy premier and ministers.

Art. 68

(1) The government is accountable to the Chamber of Deputies.

THE NEW SOUTH AFRICA

Background:

The tide against Apartheid turned eventually when in the mid-1980s South African business leaders - under siege - began to talk to the African National Congress (ANC) in Lusaka, Zambia, about alternatives to Apartheid and post-Apartheid arrangements. The end of the Cold War had a bearing on the end of Apartheid as well because the perceived “threat of communism” disappeared. Finally, in 1991 the last Apartheid National Party leader, De Klerk, pulled the plug and freed Mandela and several others after 27 years in prison. A Technical Committee to work out a New Constitution for a Transitional Period was established.  A Multiparty Negotiation Process was begun to that end and a proposal for such a Constitution passed in November, 1993 in Johannesburg.  The final Constitution was adopted, with several amendments, in October, 1996. The New South African Constitution represents a dramatic departure from the previous situation (the Apartheid Republic of 1961 - outside the Commonwealth), the result of systematic oppression and racist domination over a long period of time.  In such a situation a Republic can swing to other extremes but this is not what has happened in South Africa.  To the contrary, the new Constitution has been praised by many constitutional experts and by world opinion generally. The economic, security and health problems (AIDS) that South Africa is experiencing at present cannot be blamed on the Constitution. A large number of representatives participated in the Constitution-making process - described in the explanatory memorandum to the final Constitution as “the largest public participation program ever carried out in South Africa”.

The first president was Nelson Mandela, followed by Thabo Mbeki (recalled by his party), then Jacob Zuma. elected recently in 2009. All representing the A. N. C.

After a moving Preamble, reflecting the multi-ethnic character of South African society, and “recognising past injustices, honouring those who suffered in achieving the freedom in our land”, it is declared that “South Africa belongs to all who live in it, united in our diversity”.

The Preamble also talks about “the need for healing the divisions of the past” - something that was soon to be given practical application by the establishment of the Truth Commission, headed by Bishop Desmond Tutu. A short summary follows:

Chapter 1 explains the Founding Provisions in detail, eg. non-racialism. Some remarkable features: Several languages have been accepted as official languages.

Chapter 2 represents a very extensive, detailed Bill of Rights. It covers Sections 7 to 39.

While Section 37 makes provision for the a State of Emergency being declared by Parliament the Bill of Rights is protected in the sense that strict rules are introduced about the derogation of fundamental rights and a table of “non-derogable rights” is included.

Chapter 3 is entitled “Co-operative Government” .  It covers only one page but emphasises the constitutional requirement to inter-governmental cooperation - between the three tiers. (Note: obstructionism could thus be declared “unconstitutional”), in October 1989

Chapter 4 deals extensively with the organisation, functions and powers of the National Parliament which consists of the National Assembly (lower house) and the National Council of Provinces (the upper house) – (Note: this suggests a (quasi?) federal feature)

The National Assembly is directly elected (by Proportional Representation); it represents the people and is the principal national forum for deliberation and law making.   (Note: It also chooses the President)

Ch 4 (Section. 43, part of) also states that the provincial sphere of Government is vested in the provincial legislatures (as set out in Section 104) (Note: there are nine provinces, of fairly uneven sizes and revenue generating potential).

Section 60 provides for “a single delegation from each province consisting of ten delegates”.

Notes: How the 10 delegates are arrived at is described - there may seem to be a departure of democratic principle here as there is mention of delegates (four appointed by the Premier of the Provincial Government, three other special delegates and six permanent delegates). Each Province has one vote in the National Council. All questions concerning the Provinces (in the National Council) are agreed by all Provinces if at least five vote in favour or against.

The Powers of the National Council in the National Parliament are detailed in 

Section 68.

(a) consider, pass, amend, propose amendments to or reject any legislation before the  Council, in accordance with this Chapter and

(b) initiate or prepare legislation falling with a functional are listed in Schedule 4 or other legislation referred to in Section 76(3), but may not initiate or prepare money bills.

The areas listed there are of a largely regional character. However, altogether the powers of the National Council (90 delegates) would seem to be fairly substantial, suggesting a near-federal organisation. The size of the National Assembly is between 350 and 400 members (total population of SA around 26 million) - it is elected for a period of five years. It cannot be dissolved until after a session of three years (the fixed portion of five years).

In Chapter 5 the role, functions and powers of the President are described.

Section 83: The President

(a)  is the Head of State and Head of the National Executive

(b)  must uphold, defend and respect the Constitution as the supreme law of the Republic; and

(c)  promotes the unity of the nation and that will advance the Republic

Section 84 (2): Powers and Functions (part of)

(a)    assenting to and signing Bills;

(b) referring a Bill back to the National Assembly for reconsideration of the Bill’s constitutionality;

(c)  referring a Bill to the Constitutional Court for a decision on the Bills constitutionality;

(d)    summoning the National Assembly, the National Council of the Provinces or Parliament to an extra-ordinary sitting to conduct special business;

(e)  making any appointments that the Constitution or legislation requires the President to make, other than as head of the national executive;

(f)  appointing commissions of inquiry;

(g)  calling a national referendum;

Section 85

(1)   The executive authority of the Republic is vested in the President;

(2)  The President exercises the executive authority, together with the other members of the Cabinet, by

(a)  implementing national legislation ....;

(b)  developing and implementing national policy;

(c)  co-coordinating the functions of state department and administrations;

(d)  preparing and initiating legislation; and

(e)  performing any other executive function provided for in the Constitution or national legislation

Section 86

Election of President takes places after every general election. Candidates are nominated by politicians and elected by politicians. The Member so elected ceases to be a member of the National Assembly. Terms of office no longer than two terms (max 2 x 5 years) National Assembly can remove the President by 2/3 majority

Section 101 Executive decisions

(1) A decision by the President must be in writing if it :

(a) is taken in terms of legislation

(b) has legal consequences

(2) A written decision by the President must be countersigned by another Cabinet member if that decision concerns a function assigned to that other Cabinet member

HUNGARY

Background

Surprisingly, Hungary is still governed by the Constitution of 1949 (its first constitution), last amended in 1997.

The Hungarian Parliament in Budapest is housed in a very impressive building, modeled on the Westminster Parliament and completed early in the 20th century, prior to the First World War.  The result of that war reduced the power and size of the Hungarian state considerably though. Earlier it was the centre of an Empire. The present Constitution is still in transition having been amended significantly, in October 1989, after the collapse of the USSR. The following comments on Wikepedia are relevant:

"In 1997 an amendment streamlined the judicial system, while later modifications allowed Hungaryto join the European Union. At first, as the only Communist-era constitution retained in Eastern Europe, Hungary's charter and by extension its political system did not command a great deal of respect. The fact that it was preserved reflected a tradition of gradualism in Hungarian constitutional history; there was no constitutional assembly or referendum to confer additional legitimacy on the new system.[1] And in particular, the enthusiastic Constitutional Court seemed more intent on applying German case law than the Hungarian constitution.

However, it has gained more stature since the early 1990s for three reasons. First, the process of gradual amendments allowed for experimentation that remedied some of its weaknesses. Second, the 1989 document became stable in 1997 when the government abandoned plans for drafting a new constitution. Finally, the Court never disregarded the constitution altogether, indeed remaining acutely aware of its text."

[Preamble]

In order to facilitate a peaceful political transition to a constitutional state, establish a multi-party system, parliamentary democracy and a social market economy, the Parliament of the Republic of Hungary hereby establishes the following text as the Constitution of the Republic of Hungary, until the country's new Constitution is adopted.

Chapter I: General Provisions

Article 1 [Republic]

The State of Hungary is a republic.

Article 2 [Democracy, Rule of Law, Sovereignty]

(1 The Republic of Hungary is an independent, democratic constitutional state.

(2) In the Republic of Hungary supreme power is vested in the people, who exercise their sovereign rights directly and through elected representatives.

(3)   No activity of any social organization, government body, or individual citizen may be directed at the forcible acquisition or exercise of public power, nor at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as permitted by law.

Article 3 [Parties]

(1)  In the Republic of Hungary political parties may be established and may function freely, provided they respect the Constitution and laws established in accordance with the Constitution.

(2)  Political parties shall participate in the development and expression of the popular will.

(3)  Political parties may not exercise public power directly. Accordingly, no single party may exercise exclusive control of a government body. In the interest of ensuring the separation of political parties and public power, the law shall determine those functions and public offices which may not be held by party members or officers.

Article 4 [Unions]

Labor unions and other representative bodies shall protect and represent the interests of employees, members of co-operatives and entrepreneurs.

Article 5 [State Goals]

The State of the Republic of Hungary shall defend the freedom and sovereignty of the people, the independence and territorial integrity of the country, and its national borders as established in international treaties.

Chapter II: The Parliament

Article 19

(1)  The Parliament is the supreme body of State power and popular representation in the Republic of Hungary.

(2)  Exercising its rights based on the sovereignty of the people, the Parliament shall ensure the constitutional order of society and define the organization, orientation and conditions of government.

(3)  Within this sphere of authority, the Parliament shall -

a)  adopt the Constitution of the Republic of Hungary;

b)  pass legislation;

c)  define the country's social and economic policy;

d)  assess the balance of public finances, approve the State Budget and its implementation; e) decide on the Government's program;

f) conclude international treaties of outstanding importance to the foreign relations of the Republic of Hungary;

g)  decide on the declaration of a state of war and on the conclusion of peace;

h)  declare a state of national crisis and establish the National Defense Council, in the case of war, or imminent danger of armed attack by a foreign power (danger of war);

i)  declare a state of emergency, in the case of armed actions aimed at overturning constitutional order or at the acquisition of exclusive control of public power, in the case of acts of violence committed by force of arms or by armed groups which gravely endanger the lives and property of citizens on a mass scale, and in the event of natural or industrial disaster;

j) decide on the use of the armed forces, both abroad and within the country;

k) elect the President of the Republic, the Prime Minister, the members of the Constitutional Court, the Parliamentary Ombudsmen, the President and Vice-Presidents of the State Audit Office, the President of the Supreme Court and the General Prosecutor;

l)  upon recommendation made by the Government, which shall first be submitted to the Constitutional Court for its review, dissolve representative bodies of local government whose actions have been found unconstitutional, decide on the territory of counties, their designation and seat, as well as the declaration of cities with county-level rights and the establishment of the Districts of the Capital;

m)  exercise general amnesty.

(4)  A majority of two-thirds of the votes of the Members of Parliament is required for the decisions specified in points g), h), i) and j) of Paragraph (3).

(5)  The Parliament shall have the right to call a national referendum. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on national referenda.

Chapter III The President of the Republic (part of)

Article 29

(1)  Hungary's Head of State is the President of the Republic, who represents the unity of the nation and monitors the democratic operation of the State.

(2)  The President of the Republic is the Commander in Chief of the armed forces.

Article 29A

(1)  The Parliament shall elect the President of the Republic for a term of five years.

(2)  Any enfranchised citizen who has reached the age of thirty-five prior to the date of election may be elected to the office of President of the Republic.

(3)  The President of the Republic may be re-elected to such office no more than once.

Article 29B (part of)

(1)  The election of the President of the Republic shall be preceded by the nomination of a candidate. The written recommendation of no less than fifty Members of Parliament is required for such a nomination to be valid. The nomination must be submitted to the Speaker of Parliament prior to the announcement of the election. No Member of Parliament may nominate more than one candidate. If a Member of Parliament nominates more than one candidate, all nominations made by the Member shall be invalid.

(2)  The Parliament shall elect the President of the Republic by secret ballot. Voting may be repeated should this prove necessary. The candidate who receives a majority of two-thirds of the votes of the Members of Parliament in the first round of voting is elected President of the Republic.

Article 30 (part of)

(1)  The office of President of the Republic is incompatible with all other public, social and political offices or mandates. The President of the Republic shall not be otherwise gainfully employed and shall not accept remuneration for other activities, with the exception of such activities which fall under the protection of copyright.

(2)  A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the amount of compensation, allowances and reimbursement due to the President of the Republic.

Article 30A (part of)

(1)  The President of the Republic shall -

a) represent the State of Hungary;

b) conclude international treaties in the name of the Republic of Hungary; if the subject of the treaty falls within its legislative competence, prior ratification by the Parliament is necessary for conclusion of the treaty;

c) accredit and receive ambassadors and envoys;

d) announce general parliamentary or local government elections, and the date of the national referendum;

e) have the right to participate and speak at sittings of the Parliament and of its committees;

f) have the right to petition the Parliament to take action;

g) have the right to initiate national referenda;

h) appoint and dismiss State Secretaries, in accordance with regulations specified in a separate law;

i) appoint and dismiss the President and Vice-Presidents of the National Bank of Hungary, and university professors upon the recommendation of persons or organizations specified in a separate law; appoint and dismiss the university rectors; appoint and promote Generals of the armed forces; confirm the President of the Hungarian Academy of Sciences;

j) confer titles, orders, awards and decorations specified by law and authorize the use thereof;

k) exercise the right to grant individual pardons;

l) issue rulings in cases of citizenship;

m) issue rulings in all issues assigned to his sphere of authority on the basis of separate laws.

(2) The counter-signature of the Prime Minister or responsible Minister is required for all of the measures and actions of the President of the Republic listed in Paragraph (1), with the exception of the items specified in Points a), d), e), f) and g)  (emphasis added)

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