Countersigning
8.2.1 Overview
A countersignature is a constitutional requirement requesting the Prime Minister or a Minister to sign an official act already signed by a Head of state, who by signing assumes political and legal responsibility for this act.
Acts of a Head of State that do not require a countersignature are so called prerogatives. The decision which acts are subject to countersigning and which acts are exempted from this obligation is important for the constitutional and political position of a Head of State and determines the relation between the President and the Government to a large degree and in particular the need of interaction.8.2.1.1 Definition
Countersigning means adding a signature to a document already signed by another
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person.
8.2.1.2 Purpose
A countersignature is one of the determinants of the governmental system. The purpose of this system is to enhance cooperation between the Head of State and the Government and to shift responsibility away from the Head of State by relocating it upon the Prime Minister and (or) ministers.[542] [543] 8.2.1.3 Historical Context Historically countersigning is an instrument of the constitutional monarchies, as it was therefore possible to make the ministers responsible for acts. The monarch was traditionally inviolable and not responsible (“the King can do no wrong”). He could not be held responsible or incriminated for his acts. In the constitutional system the monarch therefore had to appoint responsible ministers to countersign his acts. 19), Germany (art. 58), Greece (art. 35), Norway (art. 31), Spain (art. 64) Fig. 8.2 Structural approach of a countersigning clause Because of this countersignature, the ministers could be held responsible for the act instead of the monarch. The opposition of the Parliament was therefore able to criticize the minister without assaulting the monarch.[544] (Table 8.4) 8.2.1.4 Structural Approach and Guiding Questions The structural approach in Fig. 8.2 first deals with the question whether the clause itself is of a positive or a negative legal nature. It then examines the person who countersigns before addressing the issue of a missing but mandatory countersignature. 8.2.2 Details of the Clause 8.2.2.1 Does the Article Feature a Positive or Negative Nature? The primary decision that needs to be made is whether the article on countersigning should be structured in a positive or negative way. The first one means enumerating acts of the President that require a countersignature, whereas a negative approach Table 8.5 | | Authority to countersign 94), Netherlands (art. 48), Norway (art. 31), Rwanda (art. 120), Senegal (art. 43) 58), Luxembourg (art. 45) means enumerating acts that are exempt from countersigning, while all other acts are required to be countersigned. As in most of the constitutions the acts that do not need to be countersigned are clearly outnumbered by the acts that do need a countersignature, it is recommended to use the negative form. This structure provides more flexibility to adjust the list of acts that do or do not need to be countersigned in the future. It also limits the power of the President and ensures that he cannot bypass the requirement of countersignature. The prerogatives can be enumerated with reference to the number of their articles or the subject. 8.2.2.2 Who Is the Person to Countersign? Four basic templates can be found in existing constitutions, see Table 8.5. Some constitutions provide that (only) the Prime Minister’s countersignature is required in any case that needs a countersignature whereas others always demand both the Prime Minister’s and the competent minister’s countersignature. Yet again, other constitutions exclusively ask for the competent minister’s countersignature. The most effective way to secure the cooperation between the President and the Government on the one hand and not slow down the whole process of making presidential acts valid on the other hand is to make the Prime Minister or a competent minister responsible for countersigning. A competent minister is usually better qualified to make a decision concerning his area of expertise so the Prime Minister would have to revert to him for advice. To prevent this often time-consuming detour it is therefore best to authorize both. 8.2.2.3 What Are the Consequences of No Countersignature? The consequences of a missing countersignature on an act that the constitution stipulates to be countersigned are only regulated by law in a few constitutions (Table 8.6). For clarification it is recommended to include a short clause stating that otherwise the act of the President will not be valid. 8.2.2.4 What Are the Exceptions from Countersignature? Usually, several acts of a Head of State do not require a countersignature, the so-called prerogatives. The decision which acts are subject to countersigning and which acts are exempted from this obligation is important for the position of a Head of State and their scope to operate. Many of those presidential functions have been described above under Sect. 8.1.2. 8.2.2.4.1 Ceremonial Prerogatives It is within the ceremonial power (see Table 8.7) of the President to appoint as Prime Minister who enjoys the confidence of the majority in Parliament. By nature of the act itself, neither the countersignature of the Prime Minister—who cannot decide on his own behalf—nor the countersignature of any Minister—who cannot be vested with a power to undermine the Parliament’s decision—ought to be necessary. Whilst the President in parliamentary systems ultimately signs the act that dismisses the Prime Minister, he should not have the right to dismiss the Prime Minister on his own authority but only after the Prime Minister’s resignation or the request of the Parliament. After holding consultation with the Prime Minister, the President appoints the Ministers of the Government and terminates their functions. As these acts are initiated by the Prime Minister or the Ministers themselves, they do not need a countersignature. The power of pardon is a legal power of an extraordinary character. Therefore, a requirement to seek opinion from other authorities such as the Minister of Justice can be included or a regulation that forbids particular pardons e.g. for those convicted of a crime of terrorism. Table 8.6 | | Consequences in case of no countersignature Table 8.7 | Ceremonial prerogatives Prime Minister- designate 57, 46) 73), Israel (art. 12), Mali (art. 51, 38), Nicaragua (art. 151), Togo (art. 80, 66) 130 (Benin, art. 60, 54) 62, 58), Mali (art. 45, 51), Senegal (art. 43, 47) To confer national orders and decorations is a typical prerogative for the Head of state. As these acts do not entail any obligations for the nation, a countersignature does not seem to be necessary. Likewise, the accreditation of ambassadors and extraordinary envoys is a typical prerogative for the Head of State as he is the international representative of a country and thus does not necessarily need a countersignature in this respect. The proposal of laws of amnesty is not problematic as long as the President is bound by a proposal made by an independent judicial council or the ministry of justice. The promulgation of the law is usually the last step in the legislative process and only a formal act. For this reason, a countersignature is not necessary. In addition, the principle of the separation of powers requires that an act of the legislative branch cannot solely depend on the will of the executive branch. 8.2.2.4.2 Protector of the State and Constitution The President’s right to return a bill to the National Assembly for further debate is a common power, if performed in a balanced way. If the requirements to overrule the veto are too high (e.g. majority of two-thirds), it could hamper the work of the legislature unnecessarily (Table 8.8). If the President is vested with the power to initiate the revision of the constitution a countersignature is not necessary because the mere initiative does not entail any binding consequences yet. If constitutional amendments strengthening or prolonging the power of high offices of state are proposed, they should have effect only for future holders of the office, not for the incumbent. Herewith it can be assured that the motivation is not the personal power or personal interests of the president, but the improvement of the machinery of government.[545] To exempt the declaration of war and signing of an armistice from countersignature appears to be rather problematic if not risky. It gives the President too much power and should therefore at least require the approval of the Prime Minister or the Parliament. The power to announce a state of emergency should be assessed not in abstracto but in the light of the other powers of the President within the system. The combination of dissolution powers and declaration of states of emergency can provide a strong basis for exceptional rule. It is recommended to consider requiring the approval of another political institution like the lower chamber of Parliament to limit presidential discretionary power.[546] The initiation of a referendum does not need a countersignature as in this stadium, legal consequences do not arise. In order to not circumvent the constitutional process of decision-making, the constitution should provide clear delimitations on what may be the subject of a referendum e.g. not regarding constitutional amendments. Table 8.8 | | Protector of the state and constitution National Assembly for further debate 50, 51), Morocco (art. 42, 59) Niger (art. 77, 67), Senegal (art. 43, 53) 41, 51) Niger (art. 77, 60) Table 8.9 | | Organisation of office Greece (art. 35) 8.2.2.4.3 Organisation of Office The appointment of presidential staff does not entail a countersignature as it pertains to purely organizational issues without any effects to third parties (Table 8.9). To exempt decrees from the requirement to be countersigned appears to be problematic for two reasons: first of all, the term “ordinary decree” itself is very unspecific and therefore ambiguous and secondly, it vests much power to the president.[547] Vice-presidents are usually elected jointly with the president. The President’s power to appoint vice-presidents is a rare, if not unique, constitutional phenomenon, which increases the President’s position of power even further.[548] 8.2.2.4.4 President as Mediator As each constitution is a complex array of checks and balances, the question whether the President’s proclamation of dissolution of the Parliament ought to be subject to countersignature needs to be examined in view of its merits for the balance of powers as a whole.[549] Discretional dissolution powers in the hands of the Head of State may be dangerous in countries lacking an established democratic tradition because it risks being interpreted as a tool of party politics.[550] A better way to do it is therefore to have an exhaustive list of specific situations for dissolution e.g. inability of Parliament to form a government, vote of non-confidence etc. Please see details under Sect. 8.1.2.6 above. Table 8.10 | | President as mediator 12), Madagascar (art. 60, 62), Mali (art. 42, 51), Senegal (art. 87, 43), Togo (art. 68, 80) Extraordinary sessions of the National Assembly may be opened and closed by decree of the President if the convocation of such sessions depends on a preceding demand of the Prime Minister or a specific number of delegates. The Nigerian constitution provides these requirements in its art. 92 (Table 8.10). 8.2.2.5 Executive Powers The right to grant and terminate citizenship might be better conferred to a special committee rather than to the President. The Appointment of the constitutional judges by different state institutions has the advantage of shielding the appointment of a part of the members from political actors. The participation of a Justice Appointments Council in the preselection of candidates to be appointed by the President would further reduce the risk of politically driven appointments.35 (Table 8.11). 8.3
Table 8.4 E EH Historical context of countersigning Type Clause Countries Positive structure The decrees issued by the President in the exercise of his/her powers laid down in art. 86 par. (2) and art. 87 par. (2), (3), and (4) shall be countersigned by the Prime-Minister (Moldova, art. 94) e.g. Czech Republic (art. 63), Romania (art. 100) Negative structure Save as otherwise provided by the constitution, all official acts of the Federal President require for their validity the countersignature of the Federal Chancellor or the competent Federal Minister (Austria, art. 67 par. 2) e.g. Colombia (art. 115), France (art.
1. Does the article feature a positive or negative design? Material qualification 4 2. Who is the person that countersigns? Scope of empowerment 4 3. What are the consequence in the case of no countersignature? Outcome 4 4. What are the exceptions from countersignature? Detail of regulation 4
Person Clause Countries Exclusively by the Prime Minister The Prime Minister shall countersign legal acts of the President of Georgia, other than the acts issued during martial law and except as provided for by par. 2-4 of this article (Georgia, art. 73) e.g. Cape Verde (art. 219), Liechtenstein (art. 85), Moldova (art. Prime Minister and a competent minister Instruments of the President of the Republic [...] shall be countersigned by the Prime Minister and, where required, by the ministers concerned (France, art. 19) e.g. Lebanon (art. 54), Madagascar (art. 52), Mali (art. 51) Prime Minister or a competent minister The acts of the President of the Republic other than those provided for in [...] are countersigned by the Prime Minister or, the case arising, by the Ministers given the charge of their execution (Togo, art. 80) e.g. Austria (art. 67), Bulgaria (art. 102), Burkina Faso (art. 57), Czech Republic (art. 63), Germany (art. Exclusively by a competent minister No act of the President of the Republic shall be valid nor be executed unless it has been countersigned by the competent Minister [...] (Greece, art. 35) e.g. Benin (art. 54), Colombia (art. 115), Guatemala (art. 119), Iceland (art. 19), Italy (art. 89), Nicaragua (art. 151), Panama (art. 186), Paraguay (art. 238), South Africa (art. 101)
Consequence Clause Countries No value or force Acts of the President of the Republic without ministerial countersignature are null and void (Peru, art. 120) e.g. Colombia (art. 115), Czech Republic (art. 63), Georgia (art. 73), Greece (art. 35), Italy (art. 89), Liechtenstein (art. 65), Norway (art. 31), Panama (art. 186), Peru (art. 120), Spain (art. 56), Venezuela (art. 236)
Prerogative Clause Countries Appointment of No countersigning shall be required for decrees pertaining to [...] the appointment of a Prime Minister-designate (Bulgaria, art. 120) e.g. Burkina Faso (art. 57, 46), France (art. 19, 8), Georgia (art. 73) Germany (art. 58), Greece (art. 35), Lebanon (art. 54), Mali (art. 51, 38), Morocco, Niger (art. 77, 56), Togo (art. 80, 66) Terminates functions of Prime Minister The President of Faso [...] terminates his [the Prime Minister’s] functions, either on the presentation by him of his resignation, or on his own authority in the superior interest of the Nation (Burkina Faso, art. e.g. France (art. 19, 8), Germany (art. 38), Niger (art. 77, 56), Togo (art. 80, 66) Appointment and termination of members of the government No act of the President, except the appointment and dismissal of ministers and [...] shall have any value or force whatsoever if it is not countersigned and communicated by the minister of the respective office or by the director of the appropriate administrative department who, by virtue thereof, become responsible for same (Colombia art. 115) e.g. Burkina Faso (art. 57, 46), France (art. 19, 8), Georgia (art. Power of pardon The President of the Republic shall have the power of pardon. He shall exercise this right under the conditions defined by art. e.g. Burkina Faso (art. 57, 54), Burundi (art. 113, 107), Georgia (art. 73-1), Madagascar (art. National orders and decorations The President of the Republic confers the national orders and the decorations of the Republic (Burundi, art. 114, 107), e.g. Georgia (art. 73-1), Madagascar (art. 62, 58) Accreditation of ambassadors and extraordinary envoys The President of the Republic accredits the ambassadors and the extraordinary envoys to foreign powers (Niger, art. 61, 77) e.g. Senegal (art. 43, 46) Amnesty The President of the Republic [...] shall propose laws of amnesty (Mali, art. 45, 51) Promulgation of law No countersigning shall be required for decrees pertaining to [...] the promulgation of law (Bulgaria, art. 102) e.g. Georgia (art. 73-1), Madagascar (art. 62, 59)
Prerogative Clause Countries Return of a bill to the No countersigning shall be required for decrees pertaining to [...] return of a bill to the National Assembly for further debate (Bulgaria, art. 102) e.g. Greece (art. 35) Initiative of the revision of the constitution The initiative of the revision of the constitution belongs concurrently to the President of the Republic after consultation with the Government, to the National Assembly or to the Senate deciding respectively with an absolute majority of the members that compose them (Burundi, art. 107, 297) e.g. Morocco (art. 172) Declaration of war and signing of armistice The President of the Republic is the Commander-in-Chief of the Corps of Defense and Security. He declares war and signs the armistice after consultation with the Government, with the Bureaus of the National Assembly and of the Senate and with the National Council of Security (Burundi, art. 107, 110) e.g. Congo (art. 156) State of exception When the institutions of the Republic, the independence of the nation, the integrity of the territory or the execution of its international engagements are threatened in a grave and immediate manner and the regular functioning of the public powers is interrupted, the President of the Republic may proclaim, by decree-law, the state of exception and take all the measures required by these circumstances, after official consultation with the Government, the Offices of the National Assembly and Senate, the National Council of Security and the Constitutional Court (Burundi, art. 107, 115) e.g. Burkina Faso (art. 57, 59), France (art. 19, 16), Mali (art. Initiation of a referendum No countersigning shall be required for decrees pertaining to [...] the scheduling of an election or referendum (Bulgaria, art. 102) e.g. Burkina Faso (art. 49, 57), Burundi (107, 198), Mali (art.
Prerogative Clause Countries Appointment of presidential staff No countersigning shall be required for decrees pertaining to [...] the organization and manner of action of the offices of the Presidency and the appointment of their staff (Bulgaria, art. 102) e.g. Ordinary decrees The acts of the President of the Republic other than those relating [...] to the ordinary [simple] Decrees are countersigned by the Prime Minister and, the case arising, by the Ministers responsible (Chad, art. 91) Appointment and termination of the Vice President The following are attributions and duties of the President of the Republic: [...] To appoint and remove the Executive Vice-President and the Cabinet Ministers (Venezuela, art. 236)
Prerogative Clause Countries Dissolution of the National Assembly/ Parliament No countersigning shall be required for decrees pertaining to [...] dissolution of the National Assembly (Bulgaria, art. 102) e.g. Burkina Faso (art. 50, 57), France (art. 19, 12), Georgia (art. 73-1), Germany (art. 58), Israel (art. Extraordinary sessions of the National Assembly The extraordinary sessions, except in the cases where they take place of plain right, are opened and closed by decree of the President of the Republic (Niger, art. 77, 92)