Legislative Initiative
6.2.1 Detailed Provisions
The right of legislative initiative is defined as the power provided by the constitution to propose a new bill. After projecting laws in governmental cabinets, in parliamentary groups or by single deputies it is the very beginning of the process of legislation.
Its purpose is to empower the initiator to actively shape laws in a general and abstract manner concerning everyone and not just a single group, individual or specific entity.[379]The legislative initiative in parliamentary systems is normally divided between Parliament and the executive, but may also be allocated to other organs or institutions, e.g. to the president, the citizens (“people’s initiative”),[380] rarely to parliamentary committees,[381] organisations[382] or the courts in specific cases.[383]
As far as parliaments are concerned the right of initiative may belong to single chambers in bicameral systems; single deputies or—more regularly—to a group of deputies representing a political party (“fraction”); the right may explicitly be laid down in the constitutional text but often is left to the Standing Orders. Thus, an overall realistic picture can only be gained by evaluating autonomous statutory law[384] and the potential preponderance of the governments introducing bills in parliamentary systems[385] (Table 6.1).
Table 6.2 provides an overview over the Government as actor and also People’s Initiative. People’s initiatives are also covered in Chap. 17 (Referendum) and in particular in Table 17.2.
Several countries have excluded certain groups from initiating bills with respect to certain content. A spectrum is listed in Table 6.3.
6.2.2 Remarks
In parliamentary systems the legislative initiative regularly originates in the governments (cabinets) where a draft proposal of a bill is prepared by the different branches of the executive.
The ministries usually have much more staff than Parliament to prepare draft bills. The Government as origin of the initiative often is not expressly mentioned in classical parliamentary models where a strong British influence is recognizable (e.g. Canada, Australia, India) relying on constitutional custom and is regulated in more detail in Standing Orders (see Tables 6.1 and 6.2).In presidential or semi-presidential systems the initiative is mostly divided between the Executive and Parliament (e.g. France, Russia, Egypt, Argentina, Brazil, Chile); but several countries reserve the right to initiate legislation in special matters to the President which concern political divisions or budget matters (e.g. Brazil, Chile). The “executive” initiative may be split between the Government and the President (e.g. Poland, Ukraine). Presidential/semi-presidential systems do not necessarily transfer the right of initiative to the President (e.g. USA, France) but
Table 6.1 | Actors of an initiative: Parliaments
| Chambers | Parliamentary groups | Deputies | Countries |
| “Federal Council” (“Bundesrat”): art. 41 par. 1 B-VG | Single deputies of Parliament (“National Council”); 1/3 of members of Federal Council: art. 42 par. 2 B-VG | Austria | |
| Both chambers: deputies and Senate: art. 75, 81 | Deputies (Rules of procedure) | Belgium | |
| Members of Folketing: § 41 par. 1 | Denmark | ||
| Members of parliament: art. 39 par. 1; but restrictions if proposals will lead to a diminution of public revenues or increase of public expenditure (art. 40) | France | ||
| Plenum of Parliament/Diet (“Bundestag”); Federal Council “Bundesrat”): art. 76 par. 1 BL | Parliamentary fraction (§ 76 Standing Orders) | 5% of MPs (§ 76 Standing Orders) | Germany |
| Every member of both chambers: art. 71 par. 1 | Italy | ||
| Both chambers of “Oireachtas”: Parliament and Senate: art. 20 | Ireland | ||
| Second chamber; also Plenary Assembly of States General: art. 82 | Single members of 2nd Chamber or Plenary Assembly: art. 82 par. 3 | Netherlands | |
| Government bills by majority party | “Private Member Bill” e.g. SO 13 | United Kingdom | |
| Legislative assembly of autonomous region: art. 167 | Fractions: art. 180 lit. g) | Deputies: art. 156 lit. b) | Portugal |
| Congress of deputies and Senate: art. 87 par. 1; also assemblies of Communities (“Comunidades autonomas”): art. 87 par. 2 | Spain | ||
| Parliamentary Committees of Assembly: art. 6 par. 1 | Any member of parliament: art. 6 par. 1 | Hungary | |
| Senate: art. 118 par. 1 | MP’s: art. 118 par. 1 | Poland | |
| Senate: art. 73 | Any MP | Romania | |
| Any MP of Parliament (“Rijksdag”): Chap. IV, § 4 | Sweden | ||
| Any canton: art. 161 par. 2 | Parliamentary commissions, fractions: art. 160 | Deputies of both Chambers: art. 160 | Switzerland |
Table 6.1 (continued)
| Chambers | Parliamentary groups | Deputies | Countries |
| MP’s: art. 68 par. 1 (as well as parliamentary committees, in Estonia parliamentary groups or individual members, Weber, 2019, p. 90) | Lithuania | ||
| Parliamentary factions; committees art. 45 par. 1 | MP’s | Georgia | |
| Deputies: art. 93 par. 1 Deputies: art. 88 par. 1 | Ukraine Turkey | ||
| Federal Council; legislative organs of subjects of Russian Federation: art. 104 (The highest Courts also have the right to initiate bills) | Members of Federal Council; deputies of “State Duma” (unitary representation): art. 104 | Russia | |
| Bills may originate in both houses of Congress: Art. I, sec. VII (except money bills only in House of Representatives) | Any member of House of Representatives or Senate | USA | |
| Bills may originate in House of Commons or Senate; money bills only in House of Commons: art. 53 | Private member and Senator bills | Canada | |
| Bills may originate in House of Representatives or Senate (except money bills): Part V, art. 53 | Private member and Senator bills | Australia | |
| Bills may originate in both Houses: House of the People (“Lok Sabha”) or Council of State (“Rajya Sabha”): except money bills: art. 107 par. 1 | Private member bills | India | |
| Bill can originate in either house: Sec. 70 par. 1 | Private member bills | Pakistan | |
| Bills originate either in Diet or government | Private members of Diet or Senate (“House of Councillors”); Diet committees | Japan | |
| Bills originate in National Assembly or Government: art. 52 | Members of National Assembly; also committees | South Korea | |
| 20 members of House of Representatives; for organic laws 1/10 of members: Sec. 131 par. 1; 133 | Thailand |
Table 6.1 (continued)
| Chambers | Parliamentary groups | Deputies | Countries |
| Bills may originate from Government or in both chambers: art. 52 (except tax laws) | Members of House of deputies or Senate may propose bills: art. 77 par. 1 | Argentina | |
| Bills may originate from executive, members of chambers; Supr Court or autonomous organs: art. 162 | Members of both chambers: House of Deputies or Senate: art. 162 | Bolivia | |
| Bills may originate from parliament; president; citizens or Supr courts: art. 69 | Members of both chambers, National Congress | Brazil | |
| Bills may originate in both chambers; by President: art. 65; except tax laws (only from Chamber of Deputies) | On motion of not more than 10 deputies or 5 senators: art. 65 par. 1 | Chile | |
| Bills may originate in both houses of Congress (“congreso”), from President, state legislature or citizens: 71 par. 1, I-IV | Members of House of Deputies or Senate: art. 71 par. 1, II | Mexico | |
| Bills may originate in both Houses of Parliament or by Government: art. 122, 136 | 20 deputies from People’s National Assembly or 20 members of National Council: art. 136 par. 1, 2 | Algeria | |
| Bills can originate from President, cabinet or MPs: art. 122 par. 1 | Every member of House of Representatives | Egypt | |
| Bills can originate from Government or from members in both Chambers: art. 25 | Private members bills: art. 29 | Cameroon | |
| Bills may originate from Government or Mp’s of both chambers: art. 143 | Members of National Assembly or Senate; more regulation in Standing Orders | Republic of Congo | |
| Bills may originate from both chambers: senate or House of representatives: art. 58 par. 2 | Private member bills: art. 58 | Nigeria | |
| Bills originate from cabinet; National Assembly or National Council: Sec. 55 (1), b; Sec. 68 (1) b: money bills only from government | Initiative also of committees | Private member bills | South Africa |
Table 6.2 | | Actors: Governments—People’s Initiative
| Executive: governments (including Prime Minister)—Heads of state | People’s initiative | Countries |
| Government: art. 41 par. 1 B-VG | 100,000 voters or 1/6 of voters of 3 “Lander”: art. 41 par. 2 (“popular initiative”—Volksbegehren) | Austria |
| “On initiative of King”: art. 75 par. 2 (“projets de lois”) | Belgium | |
| Government by King (§21) | Denmark | |
| Prime minister: art. 39 par. 1 | France | |
| Government: art. 76 par. 1 | Germany | |
| Government: art. 71 par. 1 | People’s initiative: art. 71 par. 2 “The people may initiate legislation by proposing a bill drawn and signed by at least fifty thousand voters” | Italy |
| Government: art. 20 | Ireland | |
| Government “by and on behalf of the King (art. 83) | People’s initiative: art. 61 par. 2” | Netherlands |
| Special ministry in combination with Cabinet Committee; some bills are introduced in a pre-bill-stage to Parliament (see Weber 2019, p. 91) | United Kingdom | |
| Government: art. 167 par. 1 | People’s initiative: on proposal by group of electors: 167 par. 1 | Portugal |
| Government: art. 87 | People’s initiative on demand of 500,000 voters; not admissible for organic laws; tax and international matters: art. 87 par. 3 | Spain |
| President; government: art. 6 par. 1 | Hungary | |
| President; Council of Ministers: art. 118 par. 2 | People’s initiative by 100,000 voters: art. 118 par. 2 | Poland |
| Government (The initiative between MPs and the Government is also shared in Bulgaria and Albania, see Weber, 2019, p. 91) | People’s initiative by 100,000 voters (This also applies for Albania) | Romania |
| Government: Chap. IV § 4 Regerings form | Sweden | |
| Government | People’s initiative for revision of federal constitution by 100,000 voters: art. 139 | Switzerland |
| Government | People’s initiative by 100,000 voters: art. 68 par. 2 | Lithuania |
| Government: art. 45 par. 1; supreme autonomous bodies of 2 regions | People’s initiative by 25,000 voters | Georgia |
| President or cabinet Ministers: art. 93 par. 1 | Ukraine | |
| Government eliminated after 1917 reform | Turkey | |
| Government | Canada |
Table 6.2 (continued)
| Executive: governments (including Prime Minister)—Heads of state | People’s initiative | Countries |
| Government | Australia | |
| Government | India | |
| Government | Pakistan | |
| Government. art. 52 | South Korea | |
| Council of Ministers upon recommendation of highest Courts for organic laws: Sec. 131 par. 1, 2 | People’s initiative by 10,000 voters: Sec. 133 par. 3 | Thailand |
| Executive | People’s initiative requiring 3% of registered voters representing adequate territorial representation, submitted to the House of deputies: art. 39 par. 1 | Argentina |
| Executive: art. 162 | People’s initiative: art. 162 | Bolivia |
| President; exclusive right for special legislative matters: art. 61.1 | Citizen’s initiative: art. 61 | Brazil |
| Exclusive legislative initiative of President for political and administrative division, financial budget and administration: art. 65 par. 2 | Chile | |
| President: art. 71 | Citizens initiative by at least 0,13 % of registered voters: art. 71 par. 1, IV | Mexico |
| Algeria | ||
| President or cabinet: art. 122 | Egypt | |
| Government: art. 25, 29 | Cameroon | |
| Government: art. 143 | Congo | |
| Government: not expressly mentioned | Nigeria | |
| Cabinet; only cabinet can introduce money bills: Sec. 73 (2) | South Africa |
leave it due to the concept of separation of powers to the Congress (USA: art. 1, sec. 7)[386] or to the Prime Minister (France: art. 39 par. 1).
In regionalized states or federal states the initiative may originate in the second chamber representing the regions or “states” etc (e.g. Italy, Germany, Austria, Poland, USA, Canada), but also a direct initiative from regional entities may be submitted to the parliamentary chambers or federal assemblies (e.g. Italy, Spain, Switzerland, Portugal, Finland,[387] Mexico, Bolivia). The differences of handling the legislative initiative in regionalized or federalized states may result from the constitutional traditions with longstanding practices of a second chamber representing
Table 6.3 | | Exclusive rights when initiating bills
| Nature/Main feature | Clause | Countries |
| Financial Affairs | Proposals for drafting the budget and financial affairs laws shall be made only by the Government. (Afghanistan, art. 95) | e.g. Argentina (art. 39), Belize (art. 77), Bhutan (art. 13), Chile (art. 65), Fiji (art. 47), Ghana (art. 106), Ireland (art. 20), Poland (art. 118), South Africa (art. 55), South Sudan (art. 110) |
| Expenditure | Draft laws the adoption of which may reduce state resources, or increase expenditures may be introduced in the House of Representatives only with the consent of the President or to his assignment by the Government. (Belarus, art. 99) | (Belarus, art. 99) |
| Tax | Parliament shall not, unless the bill is introduced or the motion is introduced by, or on behalf of, the President proceed upon a bill including an amendment to a bill, that, in the opinion of the person presiding, makes provision for any of the following: the imposition of taxation or the alteration of taxation otherwise than by reduction(...). (Ghana, art. 108) | e.g. Argentina (art. 39), Greece (art. 73), Uruguay (art. 133), Yemen (art. 85) |
| Expertise in a certain field | The organs of judicial power may present contributions on matters relating to the organisation of the judiciary, the status of judges and the functioning of the courts. (Angola, art. 167) They have the right to initiative in the formation of the laws: The Central Electoral Board in electoral matters. (Dominican Republic, art. 96) | e.g. Afghanistan (art. 95), Colombia (art. 154), Cuba (art. 164), Ecuador (art. 134), El Salvador (art. 133) |
| Constitutional reform | Bills referring to constitutional reform, international treaties, taxes, the budget and penal matters shall not be the subject of popular initiatives. (Argentina, art. 39) | e.g. Brazil (art. 61), Estonia (art. 103) |
territorial units (e.g. USA, Canada, Germany, Switzerland) or more recent developments of “regionalization” (e.g. Italy and Spain) or “federalisation” (e.g. Belgium).[388] Most constitutions grant the right of initiative to single members of the respective chambers but sometimes require a quorum of members (e.g. Austria, Germany or Algeria) or leave it to the discretion of the autonomous regulation of Parliament (e.g. Italy: Senate).
In parliamentary as in semi-presidential or presidential systems the legislative initiative from members or parliaments may exclude “money bills”, esp. increasing expenditures or cutting taxes (e.g. France) or may reserve the right to the unitary chamber representing the people (e.g. USA, Canada, Australia, India, Argentina, Chile) or even restrict it to the Government (e.g. South Africa) and as outlined in Table 6.3.
If one considers that “money bills” are usually drafted as budget or tax bills and submitted to the chambers parliamentary control will be performed by the debate in the respective committees and the plenary debate which often takes the form of a general debate on governmental policy; private member bills may be required to evaluate the potential costs and expenditure of the draft proposals.
Therefore, no reason is evident, why certain parties are privileged to initiate bills in particular areas as outlined in Table 6.3. The procedure of the legislature involves all parties in a democracy and therefore the content of a bill should not be restricted to a certain state organ, such as the Government. The Government will be able to express its rejection of the bill if it considers it unsuitable.
Equally, no reason prevails why a constitution should a priori exclude the people’s initiative for legislative matters to introduce the bills in the chambers; many countries provide for an initiative of the people in order to strengthen direct democracy and participation of the citizens,[389] however it may be restricted to bills not increasing the annual budget by a certain percentage or prescribing the potential expenditures.
On a different note, some constitutions allow “institutions or organisations” representing groups of citizens to initiate bills such as in Angola (art. 167) or North-Macedonia (art. 71), which is an unusual approach as the representation of citizens is usually reserved to deputies respectively their parties. Generally, parties should be strengthened in democracies as outlined in Chap. 3 so that such extended rights to institutions or organisations may deviate strength from parties.
Finally, surprisingly many countries also allow courts to initiate legislation, e.g. (Afghanistan, art. 95),[390] Azerbaijan (art. 96), Bolivia (art. 162), Brazil (art. 61), Colombia (art. 154), Cuba (art. 164), Dominican Republic (art. 96), El Salvador (art. 133), Uzbekistan (art. 83), Venezuela (art. 204) or Vietnam (art. 84). Often those empowerments are however restricted to bills regulating the judiciary and also have to be routed through Government or Parliament in order to observe the separation of powers.
6.3