Veto Powers
8.3.1 Overview of the Presidential Veto Powers
The right of veto is part of an integrated constitutional system of checks and balances. However, attributed to the Head of State, it represents an intervention in the separation of powers and should therefore be treated with extreme caution.
On the one hand, the possibility of preventing in enactment of laws, at least temporarily, and thus maintaining the status quo, can be an important constitutional instrument for controlling the legislative power. The exercise of the right of veto can prevent unconstitutional, unfavourable or rushed laws from coming into force and therefore serve the common good. On the other hand, a strong veto power can significantly influence the legislative process by the executive power.
| Table 8.11 | Executive powers | ||
| Prerogative | Clause | Countries |
| Citizenship | Countersignature shall not be required for the legal acts of the President of Georgia that relate to: [...] granting and termination of citizenship (Georgia, art. 73-1) | e.g. Poland (art. 137, 144) |
| Appointment of Constitutional Court members | Three of the members [of the High Constitutional Court] are appointed by the President of the Republic, two are elected by the National Assembly, two by the Senate, and two are elected by the Supreme Council of the Magistrate. (Madagascar, art. 62, 114) | e.g. Morocco (art. 57, 42) |
Due to this strong influence on the legislation process and the legislature as such, the conditions for the exercise and, in particular, the possibilities and consequences of parliamentary overcoming should be precisely regulated in the constitution.
8.3.1.1 Definition
The veto power can be considered as the constitutional right attributed to the Head of State to refuse, at least temporarily, to assent to a legislative bill passed by the legislative power but not yet finally entered into force.[551] In general, one can distinguish between an, absolute’ and a, suspensive’ right of veto. Whereas in the first (rarer) case the entry into force of a draft law is ultimately prevented, the suspensive veto only has a postponing effect. The right of veto generally represents a constitutional instrument for maintaining the status quo while at the same time preventing a change.[552]
8.3.1.2 Purpose and Function of the Rule
The purpose of the right of veto varies according to the form of the President’s role[553] in the constitutional system.
In general, a President is not empowered to intervene actively in the legislative process other than the initiating a bill in some jurisdictions.
In constitutional systems in which the position of the Head of State is limited to a more representative and passive role, the purpose of the veto is to protect the constitution as such. This political instrument of final examination and promulgation attributed to the Head of State can also contribute to the protection of constitutional efficacy.[554]
By refusing to assent to a law passed by the Parliament, the President may protect the public from laws that he regards as non-compliant to the constitution. In this way he embodies his role as a “constitutional guardian” whose function is to subject the law to an executive, not a jurisdictional, review. The benefit of such review in contrast to the review of the judiciary is that the intervention occurs prior to the enactment of then law which then may never occur.
On the other hand, the veto right also offers the President the opportunity to assume the function of a moral authority, quasi as an advocate of the general interest.
This can prevent the legislative power from being guided in its legislation by special interests, such as individual representatives or lobby groups. This provides the President with a weapon in the fight against corruption and opens the door to presidential discretion regarding the qualification of objectionable laws.However, in presidential systems such as in the United States of America, the right of veto can also be abused as a tool for a confrontation President that gives strong influence over legislation and the legislature, who does not enjoy the majority of Parliament (lame duck). The presidential system which historically often leads to confrontations between Parliament and President. If these two institutions are unable to resolve the confrontation often third parties as armed forces or a people’s revolution[555] take control—often outside of the parameters, the constitution provides. A presidential veto, in particular if combined with emergency powers[556] can therefore become a destabilising instrument.
8.3.1.3 Historical Context
The first traces of the right of veto can already be found in medieval Europe. At that time, the king was granted an unquestionable power to reject parliamentary proposals and requests. His judgment as “guardian of justice and the common good” was superior to the special interests of the feudal lords.[557] The king’s right of veto can still be found in the constitutions of the monarchies today. However, these days it is probably more of a symbolic right, as the role of the king often only reflects a representative function (e.g. Denmark, Cambodia, Japan, Spain, Belgium, Luxembourg).
Two relatively recent cases in Luxembourg and Belgium approve that the king’s influence on legislation, once important and undeniable, is now only marginal and can easily be overridden by parliament. In 2009, a law on euthanasia was the subject of parliamentary discussion in Luxembourg. The Grand Duke of Luxembourg signalled that he would not be in a position to promulgate the law once passed.
Given that, the constitution of Luxembourg (art.
34)[558] was amended limiting the power of the Head of State to the simple enactment of the law to preserve his neutrality (‘irresponsabilite politique’).[559] In 1990, the King of Belgium King Baldouin I. refused to countersign an abortion law that was passed against his will. For this reason, the Parliament decided to exercise art. 93 of the constitution[560] and declared the King incapable of governing for one day on which the law was adopted. After the law has passed, the King was reconstituted.[561]The right of veto does not only has a long tradition in Europe. The United States constitution of 1789 also grants the President the power to veto legislation. Article 1 Section 7 gives the President the possibility to highly influence the congressional legislation by exercising or indicating his power of veto. The first veto was exercised by President George Washington on 05 April 1792 and since then it remains a constant political instrument that strongly impacts the legislation in the United States of America.[562] Through the right of veto, the President can affect the content of legislation, even if the President does not exercise it, but only threatens to do so. In order to avoid a confrontation with the Head of state, the Parliament may be willing to change the legislative proposal in the sense of the president. Especially in financial disputes between the executive and legislative branches, the right of veto is a powerful instrument, since a presidential veto against a budgetary law can put the entire country at risk of a shutdown.[563]
8.3.1.4 Procedural Questions
With regard to the exercise of the right of veto, it is necessary to consider the conditions under which it can be made use of. It is also essential to examine the impact of the veto on the proposed legislation. Furthermore, it must also be discussed whether and under what conditions Parliament should be able to override the presidential veto and the consequences of Parliament holding on to the bill against the will of the President (Fig.
8.3).8.3.1.5 Structural Approach and Guiding Questions
The first question that should be asked before considering a veto clause is whether the right to withhold consent to a legislative proposal should apply to all areas of legislation or whether it should only be limited to certain sectors. Furthermore, the right of veto can bear different consequences on the parliamentary bill namely between a final prevention and a referral back to Parliament. Furthermore, the
| 1. | Conditions to the exercise of the veto power | t |
| 2. | Effect of the exercise | t |
| 3. | Legislative overriding procedures | t |
| 4. | Consequence of the parliamentary adherence | t |
Fig. 8.3 Procedure of the presidential veto
| 1. | Which qualification should the veto right have? | Scope of empowerment | t |
| 2. | Which legislation if any should be excluded? | Material qualification | t |
| 3. | What effect does the exercise of the power have and can the legislative proposal be amended? | Material qualification | t |
| 4. | Can Parliament override a presidential veto and the initial legislative proposal be amended? | Procedural qualification | t |
Fig. 8.4 Guiding questions when drafting a veto clause
question arises whether Parliament can alter its original draft which was vetoed by the President.
Another particularly important aspect is the question of whether, and if so in what form and by what majority, Parliament can override the President’s right of veto. Finally, the question arises whether Parliament can alter its original draft which was vetoed by the President (Fig. 8.4).8.3.2 Details of the Clause Relating to the Veto Right
In some countries a veto power is not at all foreseen in the constitution (e.g. Austria, Germany, Bosnia and Herzegovina, Eritrea, Comoros). However, in some of these countries, implicit mechanism can be found. For example, the German (art. 82 (1)) and Austrian (art. 47 (1)) constitutions provide a so-called pocket veto by simply not countersigning the proposed legislation. This enables the Head of State to fulfil his role as guardian of the constitution despite the lack of explicit authorization.[564] Apart from that the Head of State can initiate a constitutional control of the proposed legislation. For example, the Croatian constitution (art. 89 (2))[565] explicitly states that if the President considers that the law is incompatible with the constitution, he shall submit it to the Constitutional Court for review of its constitutionality.
| Table 8.12 | Absolute or suspensive veto power | ||
| Nature/ Main feature | Clause | Countries |
| Absolute Veto Right | (...) and send the new resolution to the king who takes the final decisions (Saudi Arabia, art. 17) | e.g. Saudi Arabia (art. 17), Cyprus (art. 50), Swaziland (art.108 (1)) |
| 1. A bill shall not become law unless the King has assented to it (...). (Swaziland, art. 108 (1)) | ||
| Suspensive Veto Right | A bill wholly or partially rejected by the Executive Power shall be returned with its objections to the originating Chamber; (...) If both Chambers pass it by a two-thirds majority, the bill becomes law and goes to the Executive Power for its promulgation. (Argentina, art. 83) | e.g. Argentina (art. 83), France (art. 12), USA (art. 1 S. 7), Estonia, (art. 107), Bulgaria (art. 101) |
8.3.2.1 Absolute or Suspensive Veto Power
Depending on the orientation of the President’s role in the political system, the right of veto can be either absolute or suspensive (Table 8.12). Nowadays, the absolute veto is an exception and remains in only a few constitutions (e.g. Cyprus, Saudi Arabia, Swaziland). The suspensive veto is the regular case and is embedded in many constitutions (e.g. Argentina, France, United States of America, Estonia, Bulgaria.
It is particularly important to decide whether the Head of State should be able to influence the content of the legislation with the right of veto, or whether the mechanism of promulgation should remain merely symbolic. The right of veto lies in the particularly sensitive area of the separation of powers. In other words, it shows the dilemma between strengthening the executive and strengthening the power of parliament.[566] Therefore, it is essential to find a regulation that on the one hand allows the executive branch to govern effectively, but on the other hand does not drastically diminish the rights of the parliament.
To create an effective system of check and balances between the different branches, it is recommendable to provide a constitutional veto power. However, to avoid unbalancing the legislative power, limiting the veto to a suspensive effect with the possibility to override appears to be a preferable option, especially in view of avoiding an autocratic presidential regime.
8.3.2.2 Limitations of the Veto Power
Consideration should also be given to whether and, if so, in what form the right of veto should be limited (Table 8.13). The exercise of the right of veto may, for example, be restricted to individual types of laws or completely excluded for certain
Table 8.13 | | Limitation of the veto power
| Nature/Main feature | Clause |
| Exclusion of the veto right concerning constitutional laws | 1. With the exception of constitutional acts, the President of the Republic has the right to return adopted acts, with a statement of her reasons, within 15 days of the day they were submitted to her. (Czech Republic, art. 50 (1)) |
| Exclusion of the veto right concerning financial laws | 1. When a Bill is presented to the President for assent, the President shall, within 3 ten days,- a. assent to the Bill; or b. in the case of a Bill other than a Money Bill, return the Bill to the Majlis-e-Shoora (Parliament) (...). (Pakistan (art. 75 (1)) |
| Limitation of the absolute veto right | 1. The President (...) shall have the right of final veto on any law or decision of the House of Representatives or any part thereof concerning a. foreign affairs (...) b. the following questions of defence (...) c. the following questions of security (...) (Cyprus, art. 50) |
legislative proposals. The constitution of Cyprus for example provides an absolute veto power restraint to certain issues. It gives the President a final veto right for foreign affairs and certain questions concerning defence and security with no possibility of parliamentary override.
One restriction that has traditionally not been not been enshrined by many constitutions is to ban the President from exercising a veto when the President has a conflict of interest due to prior activities. Thereby the President should not be allowed to veto a law suspending or limiting emergency powers the President has installed or other elements where the constitution of a country foresees a balance legitimately exercised by Parliament.
8.3.2.3 Effects of the Exercise of the Veto
The absolute veto power is a strong constitutional tool that empowers the President to prevent a legislative project definitely without giving the Parliament the opportunity to override the presidential veto.
If the President exercises his suspensive veto right within the time envisaged by the constitution, the bill is in general returned to Parliament for partially or fully reconsideration. The constitutional period of time for exercising the veto right can vary in terms of duration. Mostly a relatively short period is envisaged by the constitution, for example not more than 30 days (e.g. Egypt, Angola, Yemen, Chile, Algeria). However, a longer period of time can be provided for the exercise. The Jordanian constitution for example stipulates, that the President can reject a bill within 6 months of its submission.[567] In principle, such a long period of time is not recommendable, as it does not allow parliamentary work to be promoted.
The Head of State can demand a second reading which in the most cases cannot be refused by Parliament (e.g. Benin, art. 57; Central African Republic, art. 27; Gabon, art. 17). The President can reject the bill in total or only partially giving the Parliament his objections. Some constitutions require a written explanation for the rejection.[568] The veto right of the President can be limited to the right to only return a legislative proposal once for parliamentary reconsideration (e.g. Albania, art. 85 (1)).
On the other hand, it is possible that if the President does not reject the bill in time, the legislative proposal is considered law and must be published (e.g. Egypt,[569] El Salvador, Germany). In this case, the bill automatically becomes law, without requiring any further action by the President.[570]
8.3.2.4 Legislative Overriding Procedures
After the President’s rejection, Parliament will discuss the legislative proposal with respect of the president’s objection and decide if the draft law should be revised. The examination of the presidential veto may take place in special sessions, such as joint sessions of both chambers (Brazil e.g. art. 66 (4) or Kazakhstan, art. 53) or plenary sessions (Greece, art. 42). In most cases the Parliament can decide to accept the presidential objections and amend the law accordingly. If, however, Parliament maintains its original legislative proposal, the question arises as to how the President’s veto can be overridden (Table 8.14).
Legislative overriding procedures can be seen as constitutional mechanism “trying to establish equilibrium between parliamentary sovereignty and constitutional review”.[571] The possibilities for overriding the right of veto in Parliament are very diverse. In part a new vote without special requirements is sufficient to circumvent the veto. Other constitutions require a certain majority in Parliament. A new vote can, for example, be carried by simple or absolute majority. It is often the case that a two-third majority is demanded.
Although the President’s veto does represent an intervention by the executive in the legislative process, it also offers the opportunity to amend a law before it comes into force. The presidential veto can encourage political dialogue between constitutional institutions. However, the possibility of overriding a veto is an important mechanism for granting parliamentary functioning. Therefore, the conditions of legislative overriding procedures should be explicitly regulated in the constitution in order to enable Parliament to fulfil its political mandate. Nevertheless, it is advisable to provide the President with a further possibility of verification. In the
Table 8.14 I I Overriding the veto
| Nature/Main feature | Clause | Countries |
| Override by majority vote of all members | (...) If the National Assembly decides on the adoption of the law by a majority of its members, the law shall be promulgated and published (...). (Mauritania, art. 70 (2)) | e.g. Laos (art. 46), Lithuania (art. 72), Albania (art. 85 (2)) |
| Override by absolute majority vote | 2. A Bill sent back to Parliament by the President of the Republic shall be introduced to the Plenum and, if it is passed again by an absolute majority of the total number of members, (...) the President of the Republic is bound to promulgate and publish it within 10 days of the second vote. (Greece, art. 42) | |
| When the President exercises this right, he is not required to promulgate this law until it has been reconsidered and approved by an absolute majority of all the members legally composing the Chamber. (Lebanon, art. 57) | ||
| Override by a two-third majority | (1) The President enjoys the following prerogative rights: 1. to veto (...) laws and other decisions adopted by the National Parliament. The laws or decisions remain in force if two-thirds of the members of the National Parliament do not accept the President’s veto. (Mongolia, art. 33 (1)) | e.g. Angola (art. 69), Algeria (art. 127), Argentine (Sec. 83), Bahrain (art. 35), Belarus (art. 100), Chile (art. 73), Republic of Congo (art. 83), Costa Rica (art. 127), El Salvador (art. 137), Ghana (art. 106 (10)), Guinea (art. 63), Honduras (art. 216), Liberia (art. 35), Mexico (art. 72), Morocco (art. 69), Mozambique (art. 124 (4)) |
| Override by new passage in both houses | This veto may be overridden by the re-passage of such bill (...) of two-thirds of the members in each house. (Liberia, art. 35) | e.g. Burundi (art. 197), Bahrain (art. 35), Belarus (art. 100), Chile (art. 73), Liberia (art. 35), Mexico (art. 72), |
| After a second lecture, the same text may not be promulgated unless it is voted in by a majority of three quarters of deputies and three quarters of senators. (Burundi, art. 197) |
event that the President continues to consider the proposed legislation to be incompatible with the constitution, he should be in a position to initiate a subsequent review of the bill by the constitutional Court to fulfil his role as a guardian of the constitution.