[404] [405] In France the prerogative of the monarch was abolished in the French Revolution of 1789 and the legislative power based on the will of the people (“souverainete du peuple”)3 and the sovereignty lastly rests in the nation (“la nation”)?2 After the restoration in 1814 the legislative power was divided between the monarch and the chambers (Pairs and Deputies of Departments) manifesting a system of dual legitimation of constitutionalmonarchy.[406] The constitutions of the 4th and 5th Republic were characterized by a strong parliamentarism (“Regime des Assemblees”) where the transfer of legislation was prohibited;[407] but this was modified in the French constitution of 1958 where a parliamentary reservation for certain matters has expressly been entrenched (art. 34); the evolution in France thus reveals an interesting experience for drafting constitutional norms on parliamentary/statutory reservations and their subsequent interpretation by courts.[408] The evolution of the delimitation of legislative powers follows similar patterns in other countries in Europe where the royal prerogative was gradually reduced due the increasing powers of representative assemblies in constitutional monarchies (e.g.
Norway, Denmark, Sweden, Belgium, Germany in state constitutions in nineteenth century; Spain after 1978) or parliamentary republics (Italy, Middle and Eastern European countries). The constitutional reservation for parliaments to legislate in all or at least essential matters must be defined by the constituent assemblies or its subsequent amending texts and cannot be left to the discretion of the ordinary legislator or the courts alone even if they play an important role in its further evolution.
The overview thus comprises two major aspects:
1. How do constitutions circumscribe or define the legislative competences appertaining solely to the parliaments? (Table 6.7).
2. How do constitutions regulate the delegation of legislative matters in specific circumstances which normally originate in the legislative area of parliaments (“delegated legislation”: Table 6.8)?
The control of delegated legislation may principally occur in two forms: ex ante control by authorisation or ex post control by approval/revocation.
6.6.2 Parliamentary Reservation
“Parliamentary reservation” is not necessarily identical with “legal” or “statutory” reservation because parliamentary reservations may comprise various forms of enactments including resolutions, recommendations and other forms of manifestations. However, in the following the term is used for statutory reservation,
i. e. if the legislative function is reserved to the Parliament in forms of laws in a narrower sense (statutes). The statutory reservation may also be rooted in constitutional criteria developed by Courts, e.g. in order to protect fundamental rights[409] or guarantee the participation of citizens in essential matters.[410] In this sense the “statutory” reservation has evolved to a parliamentary reservation in a wider sense if specific concretizations of the parliamentary competences are lacking.[411]
Table 6.7 comprises an overview of constitutionally entrenched statutory reservations, but mainly leaves the interpretation by the courts for further research and interest to the reader.
6.6.3 Remarks
The comparative overview (without being exhaustive at all) suggests essentially three types of parliamentary/statutory reservation anchored in constitutional texts:
1. General reference to the “principle of legality” or the “rule of law” (e.g. Austria, Germany, Switzerland, Pakistan; Czech Republic, South Africa). Even if the principle of statutory reservation is not expressly mentioned constitutional jurisprudence may fill textual lacunae either by reference to the rule of law, fundamental rights guarantees or the essentiality (“essence”) of the subject matter for democracy (Italy, Germany, Spain).
2. Apparently frequent are textual guarantees of statutory reservations for fundamental rights in general or for specific rights (“fundamental rights statutory reservation”); these may take the form of a general limitation clause (e.g. Poland, Slovakia, Spain, Czech Republic) but specific human rights statutory reservations are by far more numerous. A detailed enquiry will focus on this aspect in Vol. II (Fundamental Rights, sub limitations of Fundamental Rights).
3. A third type originates in the demarcation of legislative competences between the Parliament and the Executive especially in semi-presidential systems where the presidential “decree power” is limited to ordinances, regulations or—more rarely—to delegated legislation (see infra Sect. 6.6.4). The delimitation of the legislative and the executive sphere is of predominant importance for these systems as the executives may permanently intervene into the parliamentary sphere by the legislative initiative, veto powers or the dependence of the cabinet from the president. Thus the enumeration of specific legislative matters belonging to the Parliament mainly appears as a safeguard against the presidential powers but it implies by its very nature that certain subject matters can only be legislated by Parliament and consequently by law (“statute”). Insofar the “parliamentary” reservation (in a reverse sense than mentioned above) reveals itself as statutory reservation and a strong bulwark against presidential powers.
The French example of the Fifth Republic intending to mark the demarcation between the parliamentary sphere (art. 34) and the governmental decree power (art. 37), Table 6.7 | | Statutory reservations
| General Reservation | Reservation of Fundamental Rights (FR) | Other types of Reservation | Countries |
| Art. 18 B-VG: principle of legality | a | | Austria |
| | Art. 16 par. 1 | | Croatia |
| Detailed enumeration of legislative competences (art. 34) in demarcation to governmental decree power: (art. 37) | Art. 34 par. 1: “Statute (‘la loi’) determines the rules concerning...civic rights and fundamental guarantees accorded to the citizens for the exercise of public freedoms” b | | France |
| No express general statutory reservation, but “rule of law”- principle (art. 20 par. 1) | Statutory reservations in fundamental rights | Case law Fed Const Court concerning “fundamental” questions c | Germany |
| | | | Ireland |
| No express general reservation but “riserva di legge” recognized in jurisprudence d | | | Italy |
| | Chap. VIII, §§ 71 statutory reservations for specific FR | | Denmark |
| | § 80 par. 1, sent. 2: bases of FR only be limited by statutes | | Finland |
| Royal decrees are only valid as far as not inconsistent with parliamentary legislation; art. 17 | Statutory reservation is specific FR: Sec. E: Human Rights | | Norway |
| | Chap. II, §20ss for specific FR | | Sweden |
| | Art. 89 par. 2 for norms including penalties e | | Netherlands |
| | Statutory reservations for FR: Part II., art. 4ss | | Greece |
| | Art. I par. 3 | | Hungary |
| | Art. 31 par. 3 contains a FR reservation based on the wording of reservations of the EHRC: “...if they (limitations) are necessary in a democratic society for” specific rights and values | | Poland |
| | Specific reservations in FR: art. 18 par. 2,3 guaranteeing proportionality and essence | | Portugal |
Table 6.7 (continued)
| General Reservation | Reservation of Fundamental Rights (FR) | Other types of Reservation | Countries |
| | Art. 53 | | Romania |
| Art. 1. “estado de derecho” | Art. 53 par. 2 including fundamentality of FR; reservation in form of organic statute (“ley organica”). art. 81 f | | Spain |
| | Art. 13 par. 3,4 including the guarantee of essence | | Slovakia |
| | Art. 15 par. 2 | | Slovenia |
| Art. 164: commendable statutory reservation comprising various areas: “Allsignificant provisions that establish binding legal rules must be enacted in the form of a federal act: lit.a)- g) | Art. 164 lit.a.-d: political and constitutional rights and duties | Art. 164 lit. e-g: other matters reserved for federal legislation | Switzerland |
| Art. 2 par. 3 Czech Const: “State authority is to serve all citizens and may be asserted only in cases, within the bounds, and in the manner provided by law” | Art. 4 Czech Charter of FR: detailed general regulation of limiting FR | | Czech Republic |
| Art. 104 par. 17 (of Const. Reform Act 2017) can be read as an emanation of a statutory reservation: sent. 3: “No presidential decree shall be issued on matters explicitly regulated by law” | Presidential decree power may not modify FR guaranteed in Chap. 1 & 2 (art. 104 par. 17, Sent. 2) | | Turkey |
| Detailed regulation of exclusive statutory competences: art. 92 No. 1-29 | Human rights and freedoms (art. 92 No. 1) | See list of exclusive statutory competences | Ukraine |
| No general clause recognizable | Statutory reservations for specific FR | | Russia |
| No general reservation recognizable | Statutory reservations for FR; Sec. 13, par. 2 (indirect); sec. 19 par. 2 | | India |
| No general reservation recognizable; President has autonomous regulatory powers for “implementing laws”. art. 5 par. 2 | Statutory reservations for specific FR | | Indonesia |
| No general authorization; art. 73. 6 only refers “to cabinet orders to execute | Statutory reservations are widely used | | Japan |
Table 6.7 (continued)
| General Reservation | Reservation of Fundamental Rights (FR) | Other types of Reservation | Countries |
| the constitution and the laws” | | | |
| Sec. 4(1) may be understood as a general statutory reservation: “To enjoy the protection of law and to be treated in accordance with the law is an inalienable right of every citizen” | Specific reservations for FR | | Pakistan |
| No general statutory reservation recognizable | Special FR reservations, see e.g. art. 12 par. 1; 21 par. 3 | | South Korea |
| Specific reservation of legislative matters to Congress: art. 75 No. 1-23 | Specific reservations for FR (e.g. Art. 14, 37) | | Argentina |
| Reservation of parliamentary competences: art. 48ss g | FR reservations in Title II, Chap. I | | Brazil |
| General and specific statutory reservations: art. 63 par. 1; 2 No. 1-20 | FR reservations | | Chile |
| Legislative reservation for specific subject matters: art. 73 h | | | Mexico |
| No general statutory reservation nor enumeration of legislative competences i | Some specific reservations for FR | | Egypt |
| No general statutory reservation | - | | Cameroon |
| Delimitation between parliamentary statutory and presidential regulatory power follows French example: art. 125 specifies in detail the legislative matters, whereas all other matters pertain to the executive; art. 126 | FR reservations for specific rights | | Congo |
| No express statutory reservation but all state power subject to the “rule of law” which implies the principle of legality: Chap. 1 Sec. 1 | | | South Africa |
a Statutory reservation is mainly understood as basic rights reservation; doctrine distinguishes also between reservation concerning interferences and formulations and applies the guarantee of essence, Weber (2019), p. 79
Table 6.7 (continued)
b Earlier emanations of this type in French Declaration of Human Rights 1789 (art. 4); 1791; 1840 c See e.g. Kalkar decision concerning a nuclear plant BVerfGE, 126: “It falls to be determined according to the same standards whether the legislator, as constitutional law statutory reservation further requires (BVerfG 34, 165), has itself, by the norm referred to examination, laid down the essential normative foundations of the legal regime to be regulated and has not, for instance, left this for action by the administration... The normative decision for or against the legal permissibility of the peaceful use of atomic energy... is... a fundamental and significant decision in the sense of the statutory reservation. Only the legislator is qualified to make it”
d The Constitutional Court (“Corte Costituzionale”) describes the statutory reservation as monopoly of the legislature from which the legislature cannot resile, CC Sent 383/1998; doctrine even differentiates between various statutory reservations, de Vergottini (2019), p. 184
e However, there is an implicit assumption of a FR reservation, see Hooge Raad of 22 July 1973— fluoridering; Weber (2019), p. 81 with further references
f The Constitutional Court (“Tribunal Constitutional”) has clearly demarcated the distinction between statute (“ley”) and regulation (“reglamento”) in 1984: TC83/1984
g It is not quite clear whether this amounts also to a statutory reservation for specific legal matters or envisages more the division between federal and state competences
h The text is not unambigiuous as the legislative procedure for bills also comprises “decrees”
1 However, art. 94 par. 2 (“rule of law”) may be interpreted a submission for legal reservation
complemented by delegated legislation (art. 38) and its subsequent interpretation by jurisprudence of the “Conseil Constitutionnel” is of great interest. The listing up of legislative matters therefore is mainly found in semi-presidential systems (e.g. Ukraine, Argentina, Brazil, Mexico, Congo, South Africa for “federal” and state competences) but is not necessarily limited to these (e.g. Switzerland. art. 164).
The enumeration of legislative competences in a catalogue fulfils correspondingly the function of a “statutory reservation” and may only be modified by “delegated” (secondary or subordinate) legislation.
The entrenchment of statutory reservations may arise from different traditions and “systemic” origins. However, it should expressly be guaranteed in the constitutional texts, either in the form of the principle of legality (rule of law) and fundamental rights reservations and (or) enumeration of legislative competences. The degree of detail will depend from the country’s own traditions and needs, established jurisprudence and also comparative experiences.
6.6.4 Delegated Legislation
Delegated legislation is a meaningful instrument to transfer legislative powers which principally fall within the competence of parliaments to the executive for specific reasons. The transfer of legislative competences regularly implies a suppression of the principle of separation of powers which constitutions, subconstitutional texts or Courts intend to “domesticate” and circumscribe ex ante by substantial or procedural limitations in the constitutional text. Either it authorizes the legislature to exercise an ex ante control under certain conditions or to review ex post the practice of the governmental text (“legislative decree”). The exercise of legislative powers by the executive has strictly to be differentiated from the autonomous regulatory powers of governments which by their very nature come within the governmental sphere (e.g. decrees; ordinances, administrative regulations). The delimitation of normsetting competences between Parliament and Government is a principal issue of a constitutional state based on the rule of law: the law (“statute”) supposes the abstract and general effect of the norm vis a vis the citizen and any infringement of the fundamental rights or the participation in essential political issues must be legitimated by parliamentary legislation (see above Sect. 6.6.2). However, political scientists and constitutionalists will admit that reality does not mirror exactly the legislative separation of powers between Parliament and Government due to the needs of modern policy making realities in presidential, semi-presidential or parliamentary systems. Legislative delegations may arise for several reasons, e.g. time pressures, removing delicate questions to bureaucratic departments or agencies, the legislator's self-interest for campaigning, the general alignment of the Executive with the parliamentary majority.[412] However, generalizing assumptions concerning the practice of delegated legislation could only be made with a case by case study of the constitutional practice of each country which cannot be attained here[413] (Table 6.8).
6.6.5 Remarks
Delegated (“secondary” or “subordinate”) legislation is a dominant phenomenon of political legislative management and occurs in any form of political system. In is not only known in parliamentary democracies where the governing majorities may delegate specific questions to be solved by administrative bureaucracy but also in semi-presidential or presidential forms in various forms and procedures. It has long been established in the UK and eradiated to other Commonwealth Countries (like Canada, Australia, India) or Ireland. Several forms of statutory instruments have been enacted in order to control the delegated powers by Committees reviewing delegated legislation (Canada, Australia, Pakistan, India, South Africa).
Many countries not coming under the influence of the British legal system have entrenched specific norms circumscribing the intent, scope, time limits and repeal of delegating statutes in their constitutional texts (e.g. Germany, France, Italy, Spain,
Table 6.8 I I Delegated legislation
| Ex ante authorization based on constitutional limitations | Ex ante authorization by parliament | Ex post facto control by parliament | Countries |
| “Statutory Instruments Act” 1946 when time pressure; technicality of the issue; also for emergency reasons | Yes a; “affirmative procedures” for some parliamentary resolutions | “Negative procedures”: governmental orders may be annulled within a certain period b | UK |
| | | Ex post-control for emergency regulation in legislative amending decrees: art. 18 par. 3; B-VG; restrictive interpretation by courts | Austria |
| Art. 80 par. 1: general const. Authorisation for legislative decrees of federal government, minister or land governments: “the content, purpose and scope of the authorization conferred shall be specified by law. Each statutory instrument shall contain a statement of its legal basis”; subdelegation only on the basis of statute. | Yes; jurisprudence of art. 80 rather flexible as to content, but restrictive as to limits of the enabling statute c | | Germany |
| Art. 34 enumeration of legislative matters; art. 38 decree-laws (“decrets-lois”) | Art. 38; decrets-lois are debated in Council of Ministers and submitted to Conseil d’Etat; Jurisprudence of Const Council requires for the “loi d’habilitation” the content, purpose and must not violate const principles d | | France |
| Art. 76: “legge di delega” (content, purpose and time limit of statutory instrument | Yes | For emergency decrees art. 77 par. 2 | Italy |
| Art. 165 par. 2: aim. content, extent, period of authorization must be regulated | Yes | Also ex post control of legislative decrees: art. 165 par. 2-5 | Portugal |
| Art. 82 par. 1, 3; 86: detailed regulation of | Yes | | Spain |
Table 6.8 (continued)
| Ex ante authorization based on constitutional limitations | Ex ante authorization by parliament | Ex post facto control by parliament | Countries |
| delegation for 2 forms of delegated legislation - “‘decretos legislativos” (legislative decrees) - “‘decretos - leyes” (decree-laws) e | | For emergency decrees: (“decretos leyes”): art. 86 | |
| Art. 43 par. 3.4: general legal principles and time period must be regulated in authorization; some subject matters like basic rights or implementing the constitutions are forbidden | Yes | | Greece |
bgcolor=white>Chap. 8; §§ 7-9 circumscribes the subject matters for admissible delegation excluding tax law. | Yes | | Sweden |
| § 80: delegation for president, Government or ministers; except for basic rights or legal reservations in the constitution | Yes | | Finland |
| Art. 15 par. 2: general authorization | Yes f | A joint commission can review decrees: art. 24 par. 1 | Ireland |
| Art. 114: rather general authorization for delegating legislation | Yes | | Bulgaria |
| | Unclear | Art. 76 par. 3: urgency procedures | Romania |
| Art. 153 par. 4: very vague authorization: “pursuant to law” | Yes | | Slovenia |
| Art. 164: statutory reservation, see above 6.10.2.; but delegation possible in Swiss case law and doctrine under certain conditions g | Yes | | Switzerland |
| No express const authorization; but declared constitutional by Courts h | Yes | | Lithuania; Latvia |
Table 6.8 (continued)
| Ex ante authorization based on constitutional limitations | Ex ante authorization by parliament | Ex post facto control by parliament | Countries |
| §§ 87 No. 6; 94 par. 2; general authorization | Yes | | Estonia |
| General const authorization of parliamentary delegation of art. 91 Turk Const (old version) eliminated by 2017 Reform Act | No; but certain restriction for the presidential decree power (see above 6.10.2.) | | Turkey |
| No ex ante authorization recognizable i | - | | Ukraine |
| No ex ante authorization1 | | | Russia |
| No express constitutional authorization of legislative powers to the president | In constitutional practice legislative powers can be delegated by Congress law to the President or Regulatory Commissions k | | USA |
| No express const authorization, but constitutional custom of delegating legislation to Government agencies, boards etc l | | Since 1972 a “Standing Committee for the Scrutiny of Regulations”; since 1985 Committee can revoke delegated act for constitutional or procedural reasons | Canada |
| No express const authorization, but longstanding tradition and Legislative Instruments Act (2003, 2016) m | Wide term of “legislative instruments” | Parliament can modify or disallow subordinate legislation under the conditions of the delegating statute | Australia |
| No general clause but cabinet orders to execute laws permitted; art. 73 par. 3 n | Delegated legislation is widely used, requires concrete and specific authorization; SCt allows wide interpretation of statutory reservation o | | Japan |
| No express general clause; but art. 312 par. 1 is enabling clause for “All-India Service”; delegated legislation is widely practiced and | “All-India service” clause gives wide mandate for governmental statutory delegation for administrative, police and judicial services | “Presidential orders” of urgency loose effectiveness after 6 weeks or if both houses revoke it: art. 123 par. 1 | India |
Table 6.8 (continued)
| Ex ante authorization based on constitutional limitations | Ex ante authorization by parliament | Ex post facto control by parliament | Countries |
| under control of parl. committees | | | |
| No general authorization recognizable | | | Indonesia |
| No general authorization recognizable | Delegated legislation obviously widely practiced; functional control of delegating laws by “Senate Committee on Delegated Legislation” p | | Pakistan |
| General const. authorization for delegated legislation to President: art. 75: “delegated to him by Act with the scope specifically defined and also matters to enforce acts” | | | South Korea |
| Delegation principally prohibited except for administration and public emergency. art. 76 par. 1 | Presidential law-making powers only in exceptional circumstances: (emergency decree powers): art. 99 | | Argentina |
| No express authorization recognizable | President has original decree powers: art. 84 par. VI | | Brazil |
| Express authorization for President to demand subordinate legislative powers from congress for 1 year: art. 64 par. 1 | | | Chile |
| No express authorization recognizable | | | Mexico |
| No express authorization | | Urgent decree power for president; decrees must be approved within 15 days of become invalid: art. 156 | Egypt |
| General authorization by parliament: art. 28 q | Yes, (but Fn81) | | Cameroon |
| | Yes; President can demand authorization | | Congo |
Table 6.8 (continued)
| Ex ante authorization based on constitutional limitations | Ex ante authorization by parliament | Ex post facto control by parliament | Countries |
| Detailed clause of ex ante authorization: art. 132 | from Parliament for a decree within a limited time | | |
| Subordinate legislation expressly mentioned in 101(3) and 140(3) SAConst; delegating bills must be tabled and approved in legislatures | “Joint Committee on Delegated Legislation” supervises subordinate legislation r | | South Africa |
a However, there are constitutional doubts as to retroactive delegation, ultra-vires-control or the “Henry Vlll-clause”; see Weber (2019), p. 81 with further references
b Bradley et al. (2017), p. 656
c Weber (2019), p. 82; e.g. BVerfGE 51, 166/173
d See e.g. Decision Conseil Constituionnel: 46/207-DC
e For the distinction of delegated powers see e.g. Constitutional Court, STC 209/1987
f See also the flexible interpretation by High Court in City View Press limited & others v. An Chomhairle Oiluna & others (1980), IR 381
g See Weber (2019), p. 82
h Lithuania, judgements of 26/9/1995, 23/8/2005; Latvia: Judgments 1/5/2006, 3/4/2010
i However, art. 106 par. 3 regulates the competences of President and mentions the power to issue decrees and directives
j Wide presidential powers to issue decrees and executive orders, art. 90 par. 1-3
k See for the flexible interpretation of the Supr. Ct. e.g. INS v. Chada 462 US 919 (1983); for the “regulatory state” see Rose-Ackerman, pp. 671, 676ss; see also Patrono (1974)
l For more information see at Canada House of Commons (www.ourcommons.ca): delegated legislation
m For more details see Parliament of Australia: Delegated legislation (aph.gov.au)
n It is widely assumed that art. 73 par. 6 presupposes delegated legislation, Oda (2019), sub 4
o E.g. regarding the dismissal of a post employee according to a governmental decree implementing the Employments Act, see at Oda (2009), fn 35
p See Senate of Pakistan, July 4, 2018, at www.asianet.pakistan.com (accessed on 30 July 2021) q In practice the President rules by decree powers without a priori authorization of parliament; see Fish and Kroenig (2011), p. 118 (sub 11)
r SAConst Court (CC) has confirmed the precedent practice of subordinate legislation but differentiated between statutory authorization for a specific purpose and plenary authorization to a governmental body, see Executive Council of the Western Cape Legislature & others v. President of Rep.SA & others, (SCT 27/95)
Portugal, Greece, Sweden, South Korea, Congo) or leave it to the review of committees (e.g. South Africa after 1994).[414]
Table 6.9 | | Judicial review relating to referendums
| Judicial review | Clause | Country |
| Judicial review relates (also) to the procedure of a referendum | The Constitutional Council shall ensure the proper conduct of referendum proceedings (France, art. 60) | e.g. Austria (§ 14 VAbstG), France (art. 60), Greece (art. 100), Egypt (art. 210), Morocco (art. 132) |
The delegation of legislative powers is necessarily predetermined in cases of urgency or emergency situations when Parliament cannot convene or is out of sessions. In these cases (which have only selectively been reported above) the constitutional ex ante authorization is evident and is normally regulated in the constitutional texts or organic laws in various forms and procedures (see for more details Chap. 14: emergency regimes[415]). Emergency delegation supposes an a priori—constitutional enabling clause or at least a reference to a law with qualified majorities; it cannot be easily equated with the “ordinary” delegation of legislative competences.
Many countries provide the option for judicial review (Table 6.9). Mostly, the jurisdiction concerns the question whether or not to submit a matter to referendum. Often this relates to the question of the subject-matters put to referendum being in conformity with the constitution. The Constitutional Court or Supreme Court will usually have jurisdiction to review the referendum with respect to the respective issue. It is significant to establish an independent review mechanism in order to secure a fair procedure in accordance with fundamental rights. Furthermore, to ensure that the instrument of the referendum is not abused, to the extent possible. Therefore, it is recommended to give the Constitutional Court jurisdiction to review the decision on whether or not to submit a matter to referendum in the first place and jurisdiction to scrutinize the referendum’s result. Suitable examples are the constitutions of France and Portugal. The issues are further covered in Chaps. 11 and 17 of Writing Constitutions.