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In a parliamentary or semi-presidential system of government, a reserve power is a power that may be exercised by the head of state without the approval of another branch of the government. Unlike in a presidential system of government, the head of state is generally constrained by the cabinet or the legislature in a parliamentary system, and most reserve powers are usable only in certain exceptional circumstances. The reserve powers of the President of Ireland are called discretionary powers.
Heads of state in countries with either an uncodified or partly unwritten constitution (such as the United Kingdom or Canada) or a wholly written constitution that consists of a text augmented by additional conventions, traditions, letters patent, etc. (such as Australia) generally have reserve powers.
Typically these powers are:
There are usually strict constitutional conventions concerning when these powers may be used, and these conventions are enforced by public pressure. Using these powers in contravention of tradition would generally provoke a constitutional crisis.
Some political scientists believe that reserve powers are a good thing in that they allow for a government to handle an unforeseen crisis and that the use of convention to limit the use of reserve powers allows for more gradual and subtle constitutional evolution than is possible through formal amendment of a written constitution. Others believe that reserve powers are vestigial and potentially dangerous parts of a constitution.
Reserve powers often originate in situations in which the head of state begins with vast discretionary powers which over time become more difficult to execute in practice without provoking a constitutional crisis. As a society becomes more democratic, conventions and limitations on the power of the head of state become increasingly established and constitutional evolution occurs by establishing conventions rather than by formal amendment of the constitution. As a result, reserve powers often exist in the context of constitutional monarchies.
Within the Commonwealth realms (or dominions) until the 1920s, most reserve powers were exercised by a governor-general, on the advice of the British government, normally in the form of written instructions issued to him or her when they took office. After a 1926 Imperial Conference decision, however, the governors-general were no longer advised by the British government, but rather, by that of each individual state.
For example, the first Governor-General of the Irish Free State, Tim Healy, was instructed by the British Dominions Office in 1922 to withhold the Royal Assent on any Bill passed by the two houses of the Oireachtas (the Irish parliament) that attempted to change or abolish the Oath of Allegiance. However no such Bill was introduced during Healy's period in office (1922–28). By the time the Oath was abolished, some years later, the Irish Governor-General was formally advised exclusively by the Irish government.
In 1953, prior to Queen Elizabeth II's first royal visit (also the first visit to Australia by its reigning monarch), it was planned for her to take part in various formal processes of her Australian government. However, the government's legal advisors discovered that the Constitution of Australia allowed only the governor-general to employ all of the powers vested in the Queen, with the exception of the power to appoint the governor-general him or herself. The Royal Powers Act 1953 was passed in order to address this, and enabled the Queen, when she was personally present in Australia, to exercise any power defined in an Act of the Australian parliament that is exercisable by her governor-general.
While the reserve power to dismiss a government has not been used in the United Kingdom since 1834, this power has been exercised more recently in Australia, on two occasions:
In both cases an election was held very soon afterwards and, again in both cases, the dismissed government was massively defeated by popular vote.
In Queensland, 1987, during a tense period of leadership succession, the Governor of Queensland, Sir Walter Campbell, exercised reserve power in declining to exercise vice-regal authority on the advice of the Premier, Joh Bjelke-Petersen. Campbell initially refused to redistribute ministerial portfolios on the sole advice of the premier, who lacked the confidence of his cabinet. Subsequently, during a period when Queensland had a “Premier who is not leader” and the governing party had a “Leader who is not Premier”, there was speculation on the potential exercise of vice-regal reserve power by Campbell, in dismissing the premier in the absence of a parliamentary motion of no confidence. Ultimately, Campbell was praised for his handling of the undesirable situation. (For more, see Walter Campbell (judge)#Governor.)
These are amongst several exercises of the reserve powers in Australia in the 20th century at state and federal levels.
The reserve powers in Canada belong specifically to the Queen, as the Constitution Act of 1867 vests all executive power in the country's sovereign. The Letters Patent of 1947 were later issued by King George VI, permitting the governor general "to exercise all powers and authorities lawfully belonging to Us [the Monarch] in respect of Canada."
The reserve power of dismissal has never been used in Canada, although other reserve powers have been used to force the prime minister to resign on two occasions. The first took place in 1896, when the prime minister, Sir Charles Tupper, refused to step down after his party did not win a majority in the House of Commons during the 1896 election, leading the governor general, the Earl of Aberdeen, to no longer recognize Tupper as prime minister and disapprove of several appointments Tupper had recommended. On the second occasion, which took place in 1925 and came to be known as the King-Byng Affair, Prime Minister William Lyon Mackenzie King, facing a non-confidence motion in the House of Commons, advised the governor general, the Viscount Byng of Vimy, to dissolve the new parliament, but Byng refused.
The power to issue passports also remains under the Royal Prerogative in Canada. The terms for the issuing of passports by the Minister of Foreign Affairs on behalf of the Crown are set out in the Canadian Passport Order, issued by the Governor-in-Council under the Royal Prerogative. The Canadian government has used the Royal Prerogative on one occasion to deny a passport to a Canadian citizen who was being held by the Government of the United States. In this case, Abdurahman Khadr was denied a passport by the Canadian government. The Federal Court of Canada, on judicial review, quashed the Minister's refusal of a passport and ordered that the application be re-considered.
New Zealand's early Governors, the predecessors of today's Governors-General, exercised considerable power, with exclusive authority over some matters such as foreign and Maori affairs. They also had a real choice in selecting premiers – parliaments of the period being composed of independent members who formed loose and shifting factions – and were not always obliged to act on the advice of their ministers. As New Zealand's political system matured, the Colonial Office increasingly instructed the Governors to follow the advice of local ministers, and the powers of the office have continually shrunk. Important remnants of these early powers remain. The Governor-General has a number of reserve powers, which he or she uses on behalf of Queen Elizabeth II. Sir Kenneth Keith describes the use of these powers as based on the principle that "The Queen reigns, but the government rules, so long as it has the support of the House of Representatives".
The most visible of these is the power to appoint a Prime Minister, and the related power to accept a Prime Minister's resignation. This power is exercised every time a general election results in a change of government, most recently in 2008. It may also be exercised if a Prime Minister loses the confidence of Parliament and resigns instead of advising a dissolution of Parliament; the last such occasion was in 1912. Finally, it may happen if a Prime Minister is manoeuvred out of his position by his own party, resigns for unrelated reasons, or dies in office. Though the power of appointment is listed among the reserve powers, in fact the Governor-General abides by strict conventions, and has always appointed the leader of the dominant party in the House of Representatives. The Governor-General retains the theoretical power to appoint as Prime Minister a member of the House of Representatives who clearly does not have the support of a majority of MPs, but no Governor-General has sought to use this power since New Zealand gained responsible government, though some cabinets in the 19th century proved extremely short-lived. In earlier times, if a Prime Minister died, became incapacitated, or resigned unexpectedly, a Governor-General might be able to choose a temporary Prime Minister from among several senior ministers, while the governing party decided on a new leader who would then be duly appointed Prime Minister. Today, however, the practice of appointing – on Prime Ministerial advice – a permanent Deputy Prime Minister, who becomes acting Prime Minister when needed, has largely removed even this discretion from the Governor-General.
The remaining reserve powers are the power to dismiss a Prime Minister who has lost confidence of the House of Representatives; the ability to dissolve Parliament and call elections if a Prime Minister has lost the confidence of the House; the power to refuse a Prime Minister's request to dissolve Parliament and hold elections. The power to withhold Royal assent to Bills of Parliament is controversial. Many constitutional commentators believe that the Governor-General (or the Sovereign) does not have the power to refuse Royal assent legislation in New Zealand - former law professor and Prime Minister Sir Geoffrey Palmer and Professor Matthew Palmer argue any refusal of Royal Assent would lead to a constitutional crisis. Others, such as Professor Philip Joseph, believe the Governor-General does retain the power to refuse Royal Assent to Bills in exceptional circumstances - such as the abolition of democracy. There have been a handful of occasions when reserve powers were used, or at least considered.
In the 1890s, Premier John Ballance advised that several new members be appointed to the (since abolished) Legislative Council. Two successive Governors, the Earl of Onslow and the Earl of Glasgow, refused to make the appointments, until the Colonial Office intervened in Ballance's favour. This incident markedly reduced the discretionary powers of the Governor. Though these remained the same in law for the time being, later Governors and governments considered that there would be far fewer scenarios in which their use would be appropriate.
Almost a century later, in 1984, there was a brief constitutional crisis. The outgoing Prime Minister, Sir Robert Muldoon, had just lost an election, but refused to advise the Governor-General, Sir David Beattie, to make urgent regulations desired by both the incoming Prime Minister, David Lange, and by many in Muldoon's own party and cabinet. At the time, the option of Beattie dismissing Muldoon and replacing him, without waiting for a formal resignation, was reportedly discussed. Muldoon eventually relented under pressure from his cabinet, making use of Beattie's reserve powers unnecessary.
In the UK, the Monarch has numerous theoretical personal prerogatives. In practice however, with the exception of the appointment of a prime minister there are few circumstances in modern British government where these could be justifiably exercised; they have rarely been exercised in the last century. The full extent of the Sovereign's prerogatives has never been fully disclosed; however in 2004 the Government made public the following prerogatives in pursuance of trying to be more open and transparent:
These powers could be exercised in an emergency such as a constitutional crisis (such as surrounded the People's Budget of 1909), or in wartime. They would also be very relevant in the event of a hung parliament.
For example, in the hung parliament in 1974, the serving Prime Minister Edward Heath attempted to remain in power but was unable to form a working majority. The Queen then asked Harold Wilson, leader of the Labour Party, which had the largest number of seats in the Commons but not an overall majority, to attempt to form a government. Subsequently Wilson asked that if the government were defeated on the floor of the House of Commons, the Queen would grant a dissolution, which she agreed to.
In Belgium a constitutional provision explicitly states that no act of the Monarch is valid without the signature of (a) member(s) of the government, which thereby becomes solely responsible, hence excluding any reserve power for the crown. In legal terminology, a competence vested in 'the King' thus very often means the government, as opposed to formal laws which require a (sometimes qualified) parliamentary majority.
Constitutional precedence has even established the unwritten but binding rule that the Monarch must give assent to any parliamentary decision, regardless of any other considerations (which can only be advanced in private audience with government members, not imposed), as soon as the government presents it for royal signature and thus assumes full political responsibility.
In 1990, when a law liberalising Belgium's abortion laws was approved by parliament, King Baudouin refused to give his Royal Assent, only the second time in Belgium's history the monarch elected to do so. Instead, he requested that the cabinet declare him unable to reign for a day, which it did, thereby assuming the king's constitutional powers. All members of the government then signed the bill, passing it into law. The government declared that Baudouin was capable of reigning again the next day.
Unlike other constitutional monarchs, the Emperor of Japan has no reserve powers. Following Japan's defeat in World War II, the emperor's role is defined in Chapter I of the 1947 Constitution of Japan, as decided by the foreign powers that had defeated Japan in the war. It states that the sovereignty of Japan rests with the people, not the emperor, and that the emperor is merely the symbol of the State and of the unity of the people.
The Spanish Constitution of 1978 does not specifically grant emergency powers to the government, though does state in Article 56 that the monarch "arbitrates and moderates the regular functioning of the institutions", and invests the monarch with the responsibility of overseeing that the forms of the constitution are observed. It is through this constitutional language that wider "reserve powers" are granted to the monarch. It is through this clause and his position as Commander in Chief of the Spanish Armed Forces that King Juan Carlos undermined the attempted 23-F military coup in 1981.
Title II, Articles 56
The King is Head of State, the symbol of its unity and permanence. He arbitrates and moderates the regular functioning of the institutions, assumes the highest representation of the Spanish State in international relations, especially with the nations of its historical community, and exercises the functions expressly conferred on him by the Constitution and the laws.
Title II, Articles 56
El Rey es el Jefe del Estado, símbolo de su unidad y permanencia, arbitra y modera el funcionamiento regular de las instituciones, asume la más alta representación del Estado español en las relaciones internacionales, especialmente con las naciones de su comunidad histórica, y ejerce las funciones que le atribuyen expresamente la Constitución y las leyes.
The Spanish Constitution of 1978, Title II The Crown, Article 62, delineates the powers of the king, while Title IV Government and Administration, Article 99, defines the king's role in government. Title VI Judicial Power, Article 117, Articles 122 through 124, outlines the king's role in the country's independent judiciary. However, by constitutional convention established by Juan Carlos I, the king exercises his prerogatives having solicited government advice while maintaining a politically non-partisan and independent monarchy. Receiving government advice does not necessarily bind the monarch into executing the advice, except where prescribed by the constitution.
It is incumbent upon the King:
- a. To Sanction and promulgate the laws
- b. To summon and dissolve the Cortes Generales and to call for elections under the terms provided for in the Constitution.
- c. To Call for a referendum in the cases provided for in the Constitution.
- e. To appoint and dismiss members of the Government on the President of the Government's proposal.
- f. To issue the decrees approved in the Council of Ministers, to confer civil and military honours and distinctions in conformity with the law.
- g. To be informed of the affairs of State and, for this purpose, to preside over the meetings of the Council of Ministers whenever, he sees fit, at the President of the Government's request.
- h. To exercise supreme command of the Armed Forces
- i. To exercise the right of clemency in accordance with the law, which may not authorize general pardons.
- j. To exercise the High Patronage of the Royal Academies.
Once a General Election has been announced by the king, political parties nominate their candidates to stand for the presidency of the government.
Following the General Election of the Cortes Generales (Cortes), and other circumstances provided for in the constitution, the king meets with and interviews the political party leaders represented in the Congress of Deputies, and then consults with the Speaker of the Congress of Deputies (officially, Presidente de Congreso de los Diputados de España, who, in this instance, represents the whole of the Cortes Generales) before nominating his candidate for the presidency, according to Section 99 of Title IV. Often minor parties form part of a larger major party, and through that membership it can be said that the king fulfills his constitutional mandate of constulting with party represenitives with Congressional representation.
Title IV Government and Administration Section 99(1) & (2)
- (1) After each renewal of the Congress and the other cases provided for under the Constitution, the King shall, after consultation with the representatives appointed by the political groups with parliamentary representation, and through the Speaker of the Congress, nominate for the Presidency of the Government.
- (2) The candidate nominated in accordance with the provisions of the foregoing subsection shall submit to the Congress the political program of the Government he or she intends to form and shall seek the confidence of the House.
- 1. Después de cada renovación del Congreso de los Diputados, y en los demás supuestos constitucionales en que así proceda, el Rey, previa consulta con los representantes designados por los grupos políticos con representación parlamentaria, y a través del Presidente del Congreso, propondrá un candidato a la Presidencia del Gobierno.
- 2. El candidato propuesto conforme a lo previsto en el apartado anterior expondrá ante el Congreso de los Diputados el programa político del Gobierno que pretenda formar y solicitará la confianza de la Cámara.
The Spanish Constitution of 1978 explicitly says the king is not subject to any responsibility but his acts to be valid must be endorsed by the Government and will not be valid without such an endorsement. The only exception is that the king is free to appoint and remove the members of his private and military advisors (Casa Real).
Title IV of the Constitution invests the sanction (Royal Assent) and promulgation (publication) of the laws with the king, while Title III The Cortes Generals, Chapter 2 Drafting of Bills outlines the method bills are passed. According to Article 91, within fifteen days that a bill has been passed by the Cortes Generales, the king shall give his assent and publish the new law. Article 92 invests the king with the right to call for referendum on the advice of the president and the previous authorization of Congress.
No provision within the constitution invests the king with the ability to veto legislation directly, however no provision prohibits the king from withholding royal assent, effectively a veto. When the media asked King Juan Carlos if he would endorse the bill legalizing gay marriages, he answered "Soy el Rey de España y no el de Bélgica" ("I am the King of Spain, not of Belgium") – a reference to King Baudouin I of Belgium who had refused to sign the Belgian law legalising abortion. The King gave his Royal Assent to Law 13/2005 on 1 July 2005; the law was gazetted in the Boletín Oficial del Estado on 2 July, and came into effect on 3 July 2005.
Reserve powers can also be written into a republican constitution that separates the offices of Head of State and Head of Government. This was the case in Germany under the Weimar Republic, and is still the case in the French Fifth Republic, the Italian republic, and the Republic of Ireland. Reserve powers may include, for instance, the right to issue emergency legislation or regulation bypassing the normal processes. In most states, the head of state's ability to exercise reserve powers is explicitly defined and regulated by the text of the constitution.
The President of Bangladesh must consult with the Prime Minister for all decisions except the appointment of the Prime Minister and the Chief Justice. However, the President has the authority to dissolve the government or parliament, grant pardon to criminals, block bills/budgets by the legislature or declare an emergency.
Article 16 of the Constitution of France allows the President of the Republic to exercise exceptional powers in case of a national emergency. During this time, the President may not use his prerogative to dissolve the National Assembly and call early elections. He must still consult the Prime Minister, the leaders of both houses of Parliament and the Constitutional Council.
The inspiration for this disposition in the Constitution was the institutional chaos and lack of government authority which contributed to the French debacle in the Battle of France in 1940. On a larger scale, this is consistent with a tradition of the Roman Republic (which has always been an inspiration for the successive French Republics), to give six months of dictatorial power to a citizen in case of an imminent danger of invasion.
Article 16 rule has only been exercised once, in 1961, during a crisis related to the Algerian War in which Charles de Gaulle needed those emergency powers to foil a military plot to take over the government. In 1962, the Council of State ruled itself incompetent to judge measures of a legislative nature issued by the President under Article 16.
In his book, Le Coup d'État permanent (The Permanent Coup), François Mitterrand criticized Article 16 for allowing an ambitious politician the opportunity to become a dictator. However, he made no move to put away his reserve powers after he himself became President.
The Basic Law (i.e. the German constitution) of the Federal Republic of Germany strictly limits the reserve powers available to the President to prevent the situation in which the executive could effectively rule without legislative approval, which was the case in the Weimar Republic. In particular, he cannot rule by decree and he can only dissolve the Bundestag (parliament) if the Chancellor loses a motion of confidence and asks the President to do so.
The German President has exercised this right three times since the founding of the Federal Republic in 1949. President Gustav Heinemann dissolved the Bundestag at the request of Chancellor Willy Brandt in 1972, and in 1982 President Karl Carstens did so at the request of Chancellor Helmut Kohl. Both Brandt and Kohl were reelected with larger majorities. Most recently, on 1 July 2005, President Horst Köhler dissolved the Bundestag at the request of Chancellor Gerhard Schröder. Schröder expectedly lost the election that followed and thus made way for a new government.
The wide use of sweeping reserve powers by Adolf Hitler, contained in Article 48 of the Weimar Constitution, has often been cited as an important factor in the failure of the Weimar Republic and the decisive attainment of totalitarian power by Nazism in Germany in the 1930s.
The German President has the right to refuse his signature to laws passed by the parliament in certain circumstances. These may be formal errors in the law-making process or violations of the Basic Law inherent to the new law. This reserve power has been used 8 times till the end of 2008.
The German President nominates the first candidate for Chancellor put to vote in the Bundestag. However, the President thus far has always nominated the candidate of the winning party.
The German President has the right to pardon criminals for federal crimes with the countersignature of a member of the cabinet. The refusal of a pardon does not need a countersignature.
The president can refuse to sign laws he deems clearly against the Constitution, while less obvious cases are dealt with later on by the Constitutional Court. If the rejected law is passed again by a majority in the parliament, however, the president must sign it.
The President of Ireland does not possess executive powers: executive powers are held by the Government, which is headed by a Taoiseach (Prime Minister), who is chosen by and accountable to Dáil Éireann (House of Representatives).
The President's powers are principally defined by Article 13 of the Constitution of Ireland. For the most part, these ceremonial duties may be performed only on the authority, and with the binding advice, of the Government.
However, the President has certain reserve powers, also known as "discretionary powers" in Ireland, which can be exercised by the President at his or her discretion - without, or even contrary to, the Government's advice.
The two most politically important discretionary powers are:
(i) Refusing to dissolve the Dáil on the advice of a Taoiseach who has lost the confidence of the Dáil.
(ii) Referring legislation to the Supreme Court.
The first of these means that a Taoiseach who has been defeated by a vote of no-confidence cannot automatically expect to appeal to the people by calling a general election. The question of whether or not the Taoiseach has lost the confidence of the Dáil could be a discretionary matter for the President to decide - in principle, the President could refuse to dissolve the Dáil on the advice of a Taoiseach who has not yet been defeated in a vote of no-confidence, but who appears likely to be defeated were such a vote to be held. This power has not so far been used, but it could be a crucial power in the event of the collapse of a governing coalition.
By the second of these powers, the President may refuse to assent to legislation passed by Parliament when he or she considers it to be unconstitutional. The President refers the matter to the Supreme Court, which makes the final decision. This power has been used several times by various Presidents.
In addition to these powers, the President has various other discretionary powers in the Constitution, which are of lesser political significance (in normal circumstances). The President may decide to call a referendum on legislation "of great national significance". This power, granted by Article 27 of the Constitution, has not so far been used. The President cannot initiate a referendum, but must wait for an application by a majority of the Seanad (Senate) and one-third of the Dáil. Generally, owing to the way in which the Seanad is elected, the Government's coalition controls a majority of the seats, and strong party discipline means that Senators rarely go against their own party, so getting Seanad support for a referendum is difficult. If the Seanad were to be reformed, this power could potentially become much more significant. Similarly, the President has a latent role in resolving disputes between the Dáil and the Seanad. The President may convene a special committee to resolve questions of privilege between the Dáil and the Seanad with regard to Money Bills, and with regard to speeding the passage of urgent bills through the Seanad. Again, owing to the method by which the Seanad is elected, disputes of this nature tend not to emerge in practice.
The exercise of these powers is entirely at the President's discretion, for which the President is neither legally nor politically responsible. However, prior to their exercise, the President is bound, in most cases, to consult the Council of State, an advisory body consisting of a mixture of senior ex-officio and nominated members.