Reserve power

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In most countries, a reserve power is a power that may be exercised by the head of state in certain exceptional circumstances. Reserve powers should not be confused with reserved powers, a term used in the United States to denote powers that are delegated to the states, or the people therein, in accordance with the Tenth Amendment to the United States Constitution.

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[edit] Constitutional monarchies

Heads of state in countries with either an uncodified and partly unwritten constitution (such as the United Kingdom) or a wholly written constitution that consists of a text augmented by additional conventions, traditions, Letters Patent, etc. (such as the Commonwealth of Australia) generally have reserve powers.

Typically these powers are:

  1. to dismiss a Prime Minister;
  2. to refuse to dissolve Parliament;
  3. to force a dissolution of Parliament;
  4. to refuse or delay the Royal Assent to legislation. To withhold the Royal Assent amounts to a veto of a Bill. To reserve the Royal Assent in effect amounts to a decision neither to grant or refuse a dissolution, but to delay taking a decision for an undetermined period of time.

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.


[edit] The Commonwealth of Nations

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 when he took office. After a 1927 Commonwealth 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 Oireachtas Éireann (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 (1922-1928). By the time the Oath was abolished, some years later, the Irish Governor-General was formally advised exclusively by the Irish government.


[edit] The United Kingdom

In the UK, The Queen/The King has numerous theoretical personal prerogatives. In practice, however, with the exception of the appointment of a prime minister, which is done with every 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. Her/His Majesty's personal prerogatives are:

  1. The refusal to dissolve Parliament when requested by the Prime Minister. This was last reputedly done in 1910 (but George V later changed his mind);
  2. To dissolve Parliament (and call a new general election) against the wishes of the Prime Minister;
  3. To appoint a Prime Minister of her own choosing. This was last done in Britain in 1963 when Elizabeth II appointed Sir Alec Douglas-Home as Prime Minister.
  4. The dismissal of a Prime Minister and his Government. This was last done in Britain in 1834 by King William IV; and
  5. The refusal of the Royal Assent, last exercised in 1708 by Queen Anne [1].

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. It should also be noted, however, that they would also be very relevant during a hung parliament.

For example, in the most recent hung parliament in 1974, the serving Prime Minister Edward Heath attempted to remain in power but was unable to form a working majority. So the Queen asked Harold Wilson to attempt to form a government (in coalition with the Liberals). Wilson agreed, on condition that if the coalition with the Liberals should break down, the Queen would dissolve parliament and call a new election, rather than give the Liberals the opportunity to form a new coalition with the Conservatives. The Queen agreed, and Wilson formed a government. The Queen used (or agreed to use) several of her prerogative powers in order to break the deadlock.

[edit] The Commonwealth of Australia

It should be noted that The Queen's personal prerogatives can be quite distinct from those of her Governors-General, who may be charged with exercising her prerogatives on her behalf when she is not personally present in a particular territory. 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 vested all of the Queen's statutory powers in the office of her Governor-General, with the exception of the power to appoint the Governor-General himself. The Royal Powers Act 1953 was passed in order to address this anomaly, 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.[1]

While the royal prerogative 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:

  1. On 13th May 1932, when New South Wales Governor Sir Philip Game dismissed the Government of New South Wales.
  2. On 11th November 1975, when the Australian Governor-General Sir John Kerr dismissed the Commonwealth Government.

In both cases an election was held very soon afterwards and, again in both cases, the dismissed government was massively defeated by popular vote.

[edit] Belgium

In 1990, when a law liberalizing 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. The cabinet declared him unable to reign for a day and, conforming to the Belgian Constitution's provision that, if the king is incapable of reigning, the government as a whole will fulfil the role of head of state, all members of the government signed the bill, passing it into law. The government declared that Baudouin was capable of reigning again the next day.

[edit] Republics

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 and the Italian republic. 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.


[edit] France

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 of independence 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.

[edit] Germany

The Basic Law 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 July 1 2005, President Horst Köhler dissolved the Bundestag at the request of Chancellor Gerhard Schröder. Schröder lost the election that followed.

The abuse of sweeping reserve powers by Adolf Hitler, given to him by the frail and easily influenced President Paul von Hindenburg, has often been cited as an important factor in the failure of the Weimar Republic and the rise of Nazism in Germany in the 1930s.

[edit] Italy

The President of the Italian Republic's powers are defined by articles 87 through 90 of the Constitution of Italy. The President:

  • Can send official messages to the chambers of the Italian Parliament;
  • Calls for elections;
  • Has the command of the armed forces and is responsible for declaring the state of war;
  • Is also the President of the High Council of Courts (Consiglio Superiore della Magistratura), the self-government body of the Italian judicial system;
  • Can grant pardons and reduce sentences;
  • Can call for new elections for both or only one of the chambers, except during the last six months of his term;
  • Is not responsible of any actions undertaken while serving his functions, except for high treason and plotting against the Constitution.

The president can refuse to sign laws he deems clearly against the Constitution, while less obvious cases are dealt later on by the Constitutional court. This power is seldom used, because of the tensions it can foster between the ruling powers.

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