Competencies of the President

8.1.1 Overview and Structural Approach

The functions of the Head of State either monarchical or republican can only be described as diverse. Historically they derive from constitutional monarchies on the European continent in England (seventeenth to nineteenth centuries), France and Germany during the nineteenth century.

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

Section 8.1: Albrecht Weber; Wolfgang Babeck: Sections 8.2 and 8.3.

¹See Fix-Fierro and Salazar-Ugarte (2012), pp. 629, 634ss.

Fig. 8.1 Structural approach regarding presidential functions

Primarily the integration function arises from the position of the Head of State being principally above state powers whether expressly stated in the state constitu­tion or not.

The function of representation is partially reflected by aspects of guaranteeing and mediation functions, but also expressed in the strict sense of representing the state vis a vis other states (external representation) and in official acts of the state in its internal affairs (internal representation).

As representations are a constitutional normality the following surveys will only focus on the above mentioned guardian and guarantee function (1), arbitral and mediation function (2) and executive function (3) (Fig. 8.1).

8.1.2 Various Functions of the President

8.1.2.1 Guardian and Guarantee Functions

Constitutions frequently describe the special role of the Head of State in regard of the continuity of state institutions, security and independence, unity of the nation and surveillance of the constitutionality of state action. Whether the Head of State can function as a “neutral custodian”^[520] is dependent on various factors. Among them come the range of competences in a parliamentarian or presidential system, the personality of the President in mediating conflicts in the political process, the depth of crisis in external or internal matters.

In the following the guardian and guarantee function will focus on two aspects: control of constitutionality of state action and guarantee functions in times of crisis.

8.1.2.2 Control of Constitutionality of State Action

If an organ of the state does not appear to adhere to the constitution, most constitu­tion have enshrined preventative mechanisms so that constitutional provisions are not violated, see Table 8.1.

8.1.2.3 Remarks

The control of constitutionality of state action by the President normally takes the form of preventive control against legislative or executive acts in order to prevent the respective act to enter into legal force. Though the President is not the final arbiter of the constitutionality of state acts which in a constitutional democracy is left to the Constitutional or Supreme Court he exercises an important function as “guardian of the constitution” insofar as he is not directly involved in the initiating process. The constitutional normativity is not always unambiguous as to the control of constitu­tionality of parliamentary acts and leaves a certain discretion to the presidential veto or objections against legislative acts which could only be evaluated by empirical studies of the constitutional practice. As far as recognizable all constitutions provide only for a “suspensive veto” which can be overturned either by absolute majorities of the members or the respective chambers or predominantly by 2/3 majorities follow­ing the example of the US constitution. It represents a fair balance of powers between the executive and legislative branches in presidential systems and secures the role of national legislatures. There appear to be many “shades of grey” in constitutional reality which cannot be easily attributed to a single model.

Insofar as parliamentary systems are concerned the role of the Head of State seems to be reduced and limited to a prima facie control of constitutionality before giving assent and signing the law.

But even in mixed presidential-parliamentary systems the control of constitution­ality is largely transferred to the Constitutional Court as the preventive control of norms (“abstract review a priori”) in France illustrates. There appear to be several constitutions which oblige the President to transfer the conflict to another organ (Conseil d’Etat or Constitutional Court) if no consensus between Parliament and the Head of State is reached (see supra e.g. Namibia, South Africa, Ghana, Gabon et al).^[521]

In any case the President plays an important part in initiating constitutional review either in the form of control “a posteriori” or “a priori” as many constitutions or organic laws give the President a “locus standing” or legitimation in his role as active participant in a constitutional dispute. The guardian function justifies his

Table 8.1 | Control of constitutionality of state action

^a For more details see Sect. 8.3

^b This will be explained in more detail Chap. 6, Sect. 6.2.1

^c Similar “vetoing powers” are to be found in Albania, Bulgaria, Czech Republic, Estonia, Croatia, Hungary, Lithuania, Latvia, Poland, Slovenia, Slovakia

^d The strong position of the President vis a vis the “Grand National Assembly” is even more obvious after the modification of art. 89 par. 2 (2001) where a bill vetoed by the President can be passed by a simple majority, any modification to the President’s veto must be sent back to the President for reconsideration, the text leaves it open if there is no consensus on the modified proposal

^e The “Queens Assent” resembles the assent of the monarch to bills tabled in the House of Commons in UK

^f The vetoing power (objecting power) is exemplarily formulated in sec. 7. It reflects the separation of powers as well as the checks and balances in the legislative process and has obviously served as role model for constitutions with presidential systems around the world

^g See infra Chap. 6, Sect. 6.6.4. Repressive control of norms (a posteriori)

^h See infra Chap. 6, Sect. 6.6.4.

¹ See Chang et al. (2014), p. 330: art. 5 Constitutional Interpretation Procedure Act active role: he is not “above the law” but an integrating part of the constitutional process.

8.1.2.4 Guarantee Function in Times of Crisis

The President usually exercises a special guardian function in times of internal or external crisis.

The need for constitutional regulation has increased since the two world wars, growing international terrorism as well as natural catastrophes. The earlier debate on written “legalized” emergency powers versus unwritten “extralegal” rules in emer­gency situations which was prominently postulated during the Weimar Republic by Carl Schmitt^[522] has been attenuated by increasing consciousness of the necessity of constitutional and/or supralegal regulation of emergency situations.^[523] The most well- known emergency clause of German history empowered the “Reichsprasident” to take the “necessary measures for a restoration of the public security and orded” in the case of a significant disturbance or endangerment (art. 48 par. 2 Weimar Const).

Undoubtedly this clause has played a disreputable role in the process of the weakening and factual dissolution of the Weimar Constitution (“Notverordnungsrecht”).^[524]

A more restrictive clause as art. 48 par. 2 Weimar Const was inserted in art. 16 French Constitution 1958 enabling the President to take measures in the case of serious threats of the institutions, of the Republic, independence of the nation, integrity of the territory or execution of international agreements. However, this clause was only used once during the Algerian war (1961).^[525]

The British monarch can still historically declare war without Parliament, but since 1689 the monarch needs support by the Parliament for the (financial) support of the army. The peace of Westphalia in 1648 first determined for the European mainland that the empire no longer enjoyed all powers which were not expressly removed from the monarch, but only those which were expressly provided to the monarch.^[526]

Constitutions normally differentiate between internal and external emergency situations (Table 8.2). The former comprise natural catastrophes, riots or civil unrest, the latter times of defence and war.^[527]

8.1.2.5 Remarks

Crisis powers of the Head of State generally include internal and external emergency situations. In Nepal the President controversially stepped in in March 2013 relying on a remnant of royal prerogatives at an extraordinary crisis when the Constituent Assembly was already beyond its mandate to pass a new constitution and an impasse occurred.^[528] In July 2021 President Kais Saied of Tunisia granted himself full executive powers, dismissed the prime minister and suspended parliament, mainly on the basis of corruption and with substantial popular support. Whether or not Saied’s interventions were justified by crisis powers vested in a Head of State remains in substantial doubt:^[529] One year later, on 25 July 2022, a referendum approved the expansion of presidential powers in Tunisia. More than 90 percent of the participants voted in favour of a new constitution, but only 30 percent of eligible voters participated. The new constitution centralises power in the hands of the President by giving him the unilateral power to appoint the prime minister and the cabinet. On the same time the judiciary appears to have been deprived of its independence. Importantly the President cannot be impeached^[530] as if it was a monarchy and removing a democratic mechanism superior to a coup d'etat or a revolution.^[531]

Still vividly discussed in Australia today is constitutional crisis of 1975 where the Governor-General Sir John Kerr, the representative of the British monarch in Australia, dismissed the elected Australian Prime Minister Gough Whitlam, when Whitlam did not recommend a dissolution of parliament to the Governor-General Sir John Kerr despite several bills—particularly the crucial supply bill—being blocked in the Senate. The Australian Parliament was paralysed. To resolve this situation without the consent of the Prime Minister, the Governor-General agreed with the opposition leader Fraser to appoint Fraser as Prime Minister on the condition that Fraser immediately declare a double dissolution. In doing so, Sir John Kerr contro­versially obtained the constitutionally required formal statement to achieve the dissolution of Parliament. It was the first and so far only dissolution of Parliament in Australia, which was not initiated by the incumbent Prime Minister.^[532]

Table 8.2 | Crisis powers

Russia (art. 88: only “information” of Government and Duma)

Turkey (arts. 119-121: very detailed regulations of emergency state and administration: President “presides” the National Council)

Table 8.2 (continued)

^a For details see Chap. 15 of Writing Constitutions, also for recent developments Bjprnskov and Voigt (2018), pp. 101-127

^b After the 9/11 attacks Congress issued a Resolution “The Authorization for Use of Military Force”, Pub L No107-40,115, Stat 224 (2001) to “use all necessary and appropriate force against those...”, Dyzenhaus (2012), p. 451, calls this the “compulsion of legality’

^c Brazil’s constitutions contains one of the most detailed prescriptions of the emergency regimes in order to domesticate the Executive Power in situations of internal and external dangers and enumerating all civil rights to be respected regardless

Constitutions like the French constitution of the Fifth Republic (art. 16) only which contain a general clause of a state of emergency encompassing external as well as internal crisis situations (e.g. Francophone states) but circumscribe the participation of other state organs in a very detailed manner. Several constitutions only intend to regulate an emergency, e.g. an armed attack, a violation of the territorial integrity or war (e.g. Thailand, Taiwan or Marocco). Some constitutions are not listed above because the monarch or President is not involved in the process of declaring the state of emergency.

Constitutions in modern times should envisage and regulate internal as well as external crisis situations, at least the general conditions of substantive and procedural aspects.

Many constitutions provide for a parliamentarian control of the declaration of emergency, either a priori or a posteriori.^[533]'¹ There may be cases of external emergency where a prior approval of the Parliament is not feasible because it is hindered to convene in due time; in these cases the decisions of the President should be approved retroactively within a certain timeframe or should be lifted. The state of emergency is often regulated in more detail by specific statute law (e.g. in UK, also in France 1955), and it may be preferable to regulate it in an “organic” law or law with special increased majorities (e.g. 2/3 or 3/4). The state of emergency is addressed in detail in Chap. 14.

8.1.2.6 Arbitral and Mediation Function

The Head of State plays a dominant role in the formation and dismissal of governments which follows from his objective and neutral function. However, there is a decisive difference in the role and impact of the President between presidential systems, mixed presidential-parliamentarian systems and parliamentar­ian systems.

Purely parliamentarian systems whether monarchical or republican do not differ substantially with respect as to the formation “appointment and dismissal of govern­ment”. The President usually is limited to a formal role but in cases where the formation of Government failed he will fulfil in a “reserve function” as to the formation of government, accepting resignation, dissolving Parliament and calling new elections.^[534]

The complex interaction between the President and Parliament in parliamentary systems is dealt with in more detail in the chapters concerning President (Sects. 9.1, 9.2, 10.4, 10.5). The isolated description of the President’s role in the political process would not adequately capture the whole picture of checks and balances between Parliament and the executive.^[535]

In mixed presidential systems like in France (and Francophone countries) the President appoints and dismisses the Prime Minister (art. 8), presides the Council of Ministers (art. 9), may veto legislative proposals (art. 10) and dissolve the National Assembly after consultation with the Prime Minister and the Presidents of both chambers (art. 12). A relatively strong power is also left to the President in Greece when dissolving Parliament (art. 41 par. 1, 2) or to the President in Portugal who may dismiss the minister President on grounds of reason of state (arts. 133 lit.g), 186 par. 5, 195) or dissolve Parliament after consulting the parties and the council of state (arts. 133 lit.a), 172).

A dominant role in the political process is allotted to the President in Russia who—besides other functions (e.g. Supreme Commander in Chief)—can appoint the Prime Minister (art. 111), dismiss the Government (arts. 116, 117) or dissolve the Duma (arts. 111 par. 4, 117 par. 3).

The competences delegated to the President thus vary in the constitutional texts and without taking notice of the constitutional practice and conventions it is difficult to define or assign the role of the President to a mixed-presidential system or a more presidential system.

8.1.2.7 Executive Functions

The President exercises several functions which normally may be attributed to his role as highest “representative of the state” (international representation, reception of foreign ambassadors, ratification of treaties, conferring titles and decorations).^[536]

Some of them can be traced back to monarchical prerogatives like the right of pardon or declarations of war, but are also a constant element of republican constitutions, at least in presidential or mixed presidential systems. The right of pardon which in parliamentary systems is largely “legalized” according to statutes or conventions may insofar be regarded as a relic of monarchical-executive functions in earlier times. The declaration of the state of war (state of siege) in its internal aspects can rather be attributed to the “guardian function”^[537] but also reveals executive aspects.

In parliamentary systems the declaration of war vis a vis third states is normally linked to an application of the Government and authorization by Parliament thus revealing a representative function^[538] but this may shift into a more executive function according to the role of the President in a mixed presidential or presidential system. Thus, the distinction between representative and executive functions is more gradual and depends on the concrete role of the President in the constitutional context and practice.

In Table 8.3 the executive functions will be limited to the power of military command, the power to declare war^[539] (despite of a more representative nature) and the appointment of highest officers of state.^[540]

8.1.2.8 Remarks

The competences of the Heads of state comprise a panoply of different functions.

In constitutional monarchies the role of the monarch is largely reduced to a representative function (UK, Netherlands, Sweden, Norway, Spain) but there may

Table 8.3 | | Executive powers

Table 8.3 (continued)

^a Survey at Chang et al. (2014), p. 158: the survey gives an overview of different functions and items

be differences in the role and perception of its role due to the historical and cultural relevance of the monarchy (e.g. Thailand).

In parliamentary systems the role of the President is also predominantly characterized by the representative function (internal and external representation, signature of laws, ratification of treaties, right of pardon, declaring war after approval of parliament), but these competences regularly listed in constitutional texts also mirror to a certain degree executive functions (see sub. 4). However, the representa­tive functions do not preclude the President’s important role as arbiter and guardian of the constitution in the process of forming governments, dismissing the minister President and the cabinet or dissolving parliament. A certain political discretion prevails in the interactive process of Government formation and dismissal; this depends on the role of the vote of no confidence and of the possibility of a constructive vote of confidence in the constitutional context (see Sect. 10.4).

The more the constitutional system is shifting to a mixed presidential- parliamentary system the more the arbiter and guardian function will prevail and the impact on the formation of Government will increase. Furthermore, the President frequently presides the Council of Ministers (e.g. France and Francophone states, Russia^[541] and many constitutions in Latin America). The President can take an active part in the legislative process not only by vetoing rights against legislative proposals of the Parliament, but also by initiating legislative proposals.

In this function the President shares the role with the executive (government, cabinet).

A well conceived more recent example of distinguishing the arbiter and media­tion function from the executive function of the President is written in Chap. 5 South African constitution: “The President and National Executive”. art. 83 reads:

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 which will advance the Republic.

Following is an enumeration of competences largely attributed to the representative and guardian function (art. 84 par. 2 a)-k)) while the more executive functions (art. 85 par. 1: “The executive authority of the Republic is vested in the President”) are shared with the Government (art. 85 par. 2).

8.2