Die Rolle des Staatsoberhauptes in Deutschland seit 1871 (German Edition)

Federal Law Review

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Dem Bund oblag die Garantie der kant. Sie mussten bundeskonform sein, eine gewisse demokrat. Die in der BV von verankerte staatsrechtl. Organisation hat zu Beginn des Vorbild als Zweikammersystem ausgestaltet: Die beiden Kammern sind gleichberechtigt. Instanz regelte sie Streitigkeiten staatsrechtl.

Das Bundesgericht nahm in der BV von eine sehr schwache Stellung ein. Richtern, sondern wurde nur von Fall zu Fall in wenigen, meist zivilrechtl. Rechtspflege besorgten die Kantone. Die Staatsrechtspflege wurde nahezu ausnahmslos vom Bundesrat wahrgenommen; dessen Entscheide konnten mit Rekurs an die Bundesversammlung weitergezogen werden. Ausserdem konnten sie sich - dies waren die einzigen direktdemokrat. Elemente der neuen BV - infolge des obligator.

Etliche Bestimmungen suchten den Handel sowie den Personenverkehr zwischen den Kantonen zu erleichtern Art. Die in der Verfassung verankerte Kultusfreiheit hob nur die Diskriminierung von Reformierten in kath. In der Volksabstimmung wurde lediglich die Anpassung der Niederlassungsfreiheit und der Rechtsgleichheit Art. In den er Jahren erstarkte die Demokratische Bewegung , die in Opposition zur liberalen Elite, den sog. Bundesbaronen, einen weiteren Ausbau der direktdemokrat.

Nachdem sie die Erneuerung vieler kant. Verfassungen durchgesetzt hatte, strebte sie auch eine Revision der BV an. Unfehlbarkeit zum Dogma erhoben hatte und auch in der Schweiz der Kulturkampf entbrannte. Juristenverein forderte eine Rechtsvereinheitlichung und die Reorganisation des Bundesgerichts.

Bewegung forderte neben einer bundesstaatl. Der Verfassungsentwurf vereinte insgesamt zu viele Postulate; seine Gegner rekrutierten sich aus dem kath. In der Abstimmung vom Es gelang ihnen, die Gegnerschaft auf die Kath. Die neue BV brachte eine Konsolidierung des Bundesstaats. Die Glaubens- und Gewissensfreiheit, die Handels- und Gewerbefreiheit und das Recht auf Ehe wurden erstmals garantiert.

Standes wurden von der Wahl in den Nationalrat ausgeschlossen. Katholizismus bis in die 2. Da die Kantone eine Reihe von Kompetenzen verloren hatten, wurden Bundesgesetze und allgemeinverbindl. Prozess ein, in dessen Verlauf die schweiz. Zahlen bis, ter, quater usw. Die Mehrzahl der Teilrevisionen betraf die Aufgabenteilung zwischen Eidgenossenschaft und Kantonen; dabei verschob sich das Gewicht tendenziell auf den Bund.

Arbeitnehmer, Mieter und Konsumenten zugewiesen. Ausserdem wurden in Bezug auf Raumordnung und Umweltschutz, Verkehrswesen, Wirtschaftspolitik und staatl. Einzelne Initiativen nahmen aber auch die in der Verfassung ebenfalls vorgesehene Form einer allg.

Die Initiative wurde im Als Folge des umstrittenen Gotthardvertrags mit Italien und Deutschland wurde das Staatsvertragsreferendum als weiteres direktdemokrat. Element in der Verfassung verankert. Vertragswerke in der 2. Andere Initiativen, die einen weiteren Ausbau der direktdemokrat. Elemente forderten, lehnte das Volk dagegen ab. So verwarf es z. Erwachsenenstimmrecht fand erst eine Mehrheit Art. Nach einem erfolglosen Versuch von wurde das Stimm- und Wahlrechtsalter von 20 auf 18 gesenkt Art.

Die BV von enthielt die sog. Neu formuliert wurde das Dringlichkeitsrecht Art. Weltkriegs, der Wirtschaftskrise in den er Jahren und des 2. So wurde in jener Zeit z. Soziale Grundrechte hatten es besonders schwer; auf Ablehnung stiessen z. Um begann das Bundesgericht, die in der BV formulierten Grundrechte durch sog. Jura zustimmten, was eine Anpassung der Art. Vellerat von Bern zum Jura , unterlagen jeweils dem eidg. Verfassungsreferendum, da die Kantonsterritorien im Art. However, a professor of constitutional law would hardly have failed to notice this point — so we may take it that this statement was actually an oblique means of indicating which course he thought preferable, in which case it is easy to understand his view.

There are in addition two cases in which the Premier of Bavaria — who assents to State laws for lack of any supra-party figurehead at State level equivalent to an Australian State Governor — has also refused to assent to a Bill because he doubted its constitutionality.

Bundesverfassung (BV)

In the first case, in , the State Premier in a letter which suggests strongly that he had had legal advice stated that a proposed State law amending the law reconstituting courts with financial jurisdiction had not received his assent because it either attempted to alter a law which had since been deemed [79] to have become a federal statute and was thus not within State power, or because it would be inconsistent with a provision of the Basic Law itself. There was no discussion in the published announcements of the refusals to assent of the extent to which the legal opinions received permitted doubts about the conclusions they reached.

It was not suggested that serious doubts existed. I have not found any references to any such action in any other State. It is possible that further incidents along those lines might have occurred, as State constitutional law is not always well documented, but these two Bavarian cases are curiosities and may be unique. Refusals of assent by State Premiers are likely to be extremely rare, as the State Premier is almost always also in command of a majority in the State legislature. All State legislatures now have one chamber, although at that point Bavaria still had two.

In some other States, sometimes other officers are entrusted with the task, [82] but they too are likely to be closely connected with the majority party in the legislature. Scholars have attempted to impose some order on the data just summarised and to interpret the wording of art 82 under which the Federal President's assent is required, but have been far from unanimous.

The question on which scholars traditionally divide is whether procedural errors are the only errors that may be taken into account, or there is something further besides. The narrow view is that there is not. The broad view is that there is no restriction to procedural errors only.

Under this view, the Federal President can refuse to sign Bills in all other cases of constitutional invalidity, such as when the charter of rights is breached. A middle view is that all non-material defects other than the content-based restrictions of the charter of rights can be a ground for non-assent; this includes not merely parliamentary procedure but also the existence of legislative competence in the federation as distinct from the States cases 4, 5 and 9 and stand-alone restrictions such as those in cases 7 and 8.

Deutsches Reich / – Wikipedia

Supporters of all views agree that errors in legislative procedure justify non-assent if the resulting statute would be invalid because of the error. This conclusion is based on the reference in art 82 1 of the Basic Law [85] to the certification of laws that have been enacted 'in accordance with the provisions of this Basic Law ', and the prescription in art 78 of the ways in which the legislative process within Parliament operates. Supporters of the narrow view assume this reference exhausts the concept of certification, [87] while supporters of the broad view say that it is not clear enough to achieve that result.

The generally accepted definition of procedural errors in legislation which the Federal President may take into account as part of this process includes situations in which it is uncertain whether the consent of the Bundesrat to a Bill is required and it has not in fact been granted. As the rules about when the Bundesrat must consent can be quite complicated, this is an important point. What has been said in the preceding two paragraphs exhausts the agreement among scholars. The courts have never dealt with the question whether the broad, middle or narrow view is correct, and thus there is no relevant case law [89] to speak of.

The drafters of any of the constitutions in which the word ausgefertigt or its noun Ausfertigung is used simply did not debate the question of its meaning publicly. As far as the federal constitutional structure is concerned, it is notable that it expressly confers the function of judicial review on the Federal Constitutional Court art 93 1 4a.

The text also states that other courts may not declare laws invalid art 1. However, it does not extend this prohibition to other constitutional organs. After all, questions relating to whether a statute is valid, especially under value-laden provisions such as a charter of rights, can be very dependent on individual assessments, so that it is necessary to have one authoritative voice.

But those in favour of the middle or broad views of the Federal President's powers point to other constitutional provisions. For example, references are made to the Federal President's oath to defend the Basic Law , [94] or the possibility of his being accused of neglect of his duties under art 61 for signing a Bill that in fact should not have been signed. The difficulty with this type of argument is that it assumes that which is to be proved, namely that the Federal President does in fact have the duty not to assent to Bills if they conflict with the Basic Law in any respect, rather than leaving the matter to the Court.

This is untenable because it begs the question or, as is often said, because it would turn provisions reinforcing existing duties into provisions creating new duties , [95] a fact which has been realised by most of the supporters of the middle and broad views who have more or less abandoned this argument. Some supporters of the broad view, however, still refer to the binding nature of rules of the constitutional system including the charter of rights on all constitutional organs, as declared in arts 1 3 and 20 3 of the Basic Law , as the basis for a duty in the Federal President, a constitutional organ, to determine whether Bills are in accordance with the Basic Law.

Thus, reference to such provisions does not advance the case for the broad view at all, but merely re-phrases the question: In fact the provisions mentioned retard the case for all but the narrowest view: Rather, the fidelity to law which a Rechtsstaat demands does not exclude the possibility that an organ of the constitution must participate in an activity which it considers unlawful if the law appoints another exclusive means of resolving the question.

We should expect that judge nevertheless to bow to the final contrary decision of the question by the highest court and exercise that jurisdiction anyway. Furthermore, the blunderbuss view that giving assent to an invalid law is ipso facto a breach of presidential duty is not well adapted for cases in which only one part of a Bill is thought to be invalid. As there is no power to assent to part only of a Bill, [] many supporters of the middle and broad views state that the Federal President can refuse to sign a Bill only if it is wholly invalid, [] while some others say that it depends on things like the proportion of valid to invalid portions and the seriousness of the breach.

The Basic Law , if a coherent system of constitutional norms, cannot mean to put the Federal President in the position of being 'damned if he does and damned if he doesn't'. Surprisingly enough, however, the 'principal argument' [] for the broad view is none of those considered so far. It is based on the Jesuitical view that there is no distinction between errors relating to legislative procedure and other errors. The argument which was first formulated at the time of the Weimar Republic [] starts with the proposition that a law which infringes the other parts of the Basic Law , apparently unrelated to legislative procedures, is a law which must necessarily also contain an error relating to legislative procedure.

This is because art 79 1 requires all laws altering the Basic Law to state expressly an intention to alter the constitution.

This is unconvincing, because that is not the intention of the Bill at all. A Bill's proponents will not argue, and given the prohibition of implied amendments could not rationally argue, that they are putting forward a Bill inconsistent with the Basic Law. Their case will not be that they forgot to ensure that a provision for express amendment of the Basic Law was needed; their case is rather that no such provision is needed at all, because the law is not inconsistent with the Basic Law and should therefore receive assent in its present form. The argument therefore confuses the real defect in the Bill assuming that there is one with the means by which it might be fixed — which are not the same thing precisely because of the prohibition on implied amendments.

Rather, they are entirely prohibited, and that is for substantive reasons, namely their misuse under the Weimar Constitution ; any law which would otherwise achieve an implied amendment suffers from a substantive and not a procedural defect. Sometimes it is also argued that procedural and non-procedural matters are inextricably mixed because different procedures are prescribed for different types of laws: A Bill's categorisation depends on its contents. Thus, it is said, it is not possible to determine the correct procedure for any Bill without looking beyond procedural matters, and the distinction is lost.

It is certainly true that procedures vary according to content, but this does not mean that there is no such thing as a 'purely' procedural error. There is surely still a difference between not seeking the consent of the Bundesrat because of a mistaken view about whether that is required — even a mistaken view based on a view about the content of the proposed law — and carrying out the procedures flawlessly for a Bill that infringes a basic right. Determining the correct procedure is as much a matter relating to legislative procedure, even if the classification of the Bill based on its content is a criterion, as following the correct procedure once it is determined what that is.

Finally, the supporters of the middle and broad views refer to the fact that the Federal President can be sued for not assenting, and thus refusal can never prevent the issue coming before the Federal Constitutional Court. Furthermore, proponents of a vetoed law who are serious about its constitutionality, and are not merely prepared to assert its constitutionality to the Federal President as a means of bludgeoning a signature out of him, can 'put their money where their mouth is'. This in itself may well be a good thing, although it does not entail the correctness of the broad view: The decision not to assent is not taken in a political vacuum.

It would hardly be wise for a Federal President to provoke a stream of suits against himself by the government, and this possibility does not equate to a blank cheque to refuse to sign whenever doubts are entertained. Losses before the Court would bring the office into disrepute, and constant refusals, even if unchallenged or unsuccessfully challenged, would make the office appear too political.

Nor would it be fair to politicians to require them to take action against the head of state every time a law may be invalid. There is therefore no good reason to accept the broad view that any error in enacting a Bill which would make the resulting statute invalid justifies a refusal of assent. A writer on this very topic has noted that 'legal scholarship and practical politics traditionally follow rather separate paths in Germany'.

Scholars have increasingly come to realise that it is not so much the source of constitutional error, but the certainty with which it can be stated that an error has indeed occurred that is decisive. Thus we nowadays find passionate scholarly defences of the broad view as the only reasonable one, the view that enjoys the greater number of adherents in academic discussion — as indeed it does [] — and necessary because otherwise a blank cheque will exist for the disregard of constitutional law by the legislature.

This statement however is regularly followed by the somewhat lame qualification that assent should, of course, be refused only when it is quite certain that a constitutional obstacle does in fact exist. Equally, the supporters of the narrow view defend their position on the grounds that the Federal President has no business usurping the functions of the Court, and art 82 1 , properly interpreted, does not permit him to do so because it refers only to errors in legislative procedure — but then they typically also add that of course a refusal to assent should take place only in clear cases, and additionally that, if the free democratic order were ever in real danger, the Federal President would be justified in refusing to assent to a Bill no matter what its subject matter.

Some supporters of the narrow view were no doubt attracted to it by the idea that the existence of procedural errors in Parliament is likely to be less controversial than errors relating to the charter of rights or the distribution of legislative powers. The supporters of this view too therefore tend towards the practical criterion of certainty. A particularly notable case of the shift from category-based arguments to the question whether invalidity is clear is provided by Professor Carstens, the former professor of constitutional law who became Federal President.

As a professor he had expressed himself in favour of the narrow view, but even then he added that there would be an exception for Bills which endangered the free democratic system.

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When it came to the crunch, he based his decision to assent to the State Liability Bill not on category-based grounds, but rather on the grounds that the Bill was arguably constitutional! There are one or two other considerations that might be decisive in borderline or unlikely cases. In summary form, they are: In fact there is no opposition at all between the criterion of obviousness and that of seriousness, but rather an underlying congruence. If the government proposes and the legislature passes legislation which is almost certainly in conflict with the constitution, that is a really serious thing in itself because it jeopardises the sense that even the government and the legislature are bound by constitutional provisions.

In other words, the principle of the rule of law is endangered — not quite as dramatically as democracy would be endangered by a law banning all opposition parties, for example, but rather more insidiously. Now that it has become clear that the principal criterion is that of certainty, it should moreover be explicitly recognised that the power to refuse assent is a discretion to be exercised with sound judgment and in accordance with the individual circumstances of the case, and is not to be confined to one criterion for its exercise. Thus for example in case 3 a substantial delay in reaching an inevitable decision was partly prompted by the imminence of an election, and one also has the feeling in relation to cases of doubtful assent such as the State Liability Bill or the Immigration Bill of that strategic considerations and a desire to avoid controversy played a significant role in the decision to assent.

Nazi Germany

One shudders to think of the controversy that would have enveloped the office of Federal President had its holder in refused assent to the Immigration Bill rather than referring the issue to the courts by granting it. The decision whether or not to assent is partly a political one in the broad sense — not just a legal one. It is easy to imagine political circumstances, perhaps involving an imminent election in which a Bill will be at the centre of attention, when it might be unwise to refuse assent to it because doing so would simply ensure that the office of Federal President would be dragged into political controversy.

One other peculiarity relating to the two cases from also illustrates the relevance of broad political considerations. In that year, as still at the time of writing, what is known as a grand coalition was in power federally. The opposition was therefore unusually weak because it included only the smaller parties. At the time of writing, the largest of the three opposition parties, the Free Democrats, had sixty-one of the seats in the Bundestag , the 'hard' left party fifty-three and the Greens fifty-one. The unusual weakness of the opposition created a particular need for strong extra-parliamentary mechanisms for ensuring the accountability of government.

In defending the Federal President's actions in case 9, Professor Schoch did indeed argue that. In , the previous year in which two Bills were passed but not assented to, the only other grand coalition of the right and left that has existed in post-War German history was also in power. Reference was made in the introduction to a comparable case of refusal for invalidity in Victoria in the s.

The equivalent question first arose in the newly-established Commonwealth of Australia in a case in which even the Attorney-General considered a Bill invalid according to the then-current doctrine of the High Court of Australia — but nevertheless advised the Governor-General to assent to the Bill on the grounds that it was not for him or the Governor-General to determine its validity, but rather for 'the High Court and the High Court alone'.

Four years after the Engineers Case , the Governor of Tasmania yielded to ministerial advice to assent to Bills that had not passed the State's Legislative Council, although that course was almost certainly constitutionally defective. Government House is just not the correct forum in which to urge such objections: Sometimes both in the United Kingdom [] and in Australia [] it is speculated that the Crown would have the right, perhaps even a duty, to refuse assent to legislation which imperilled the very foundations of democracy, and that may well be true as an abstract proposition.

But of course, if such legislation were ever proposed the situation might be like that in Germany in early in which refusal is less of a practical option than even constitutional theory allows. Fortunately we have no practical examples from either the United Kingdom or Australia to guide our speculations in this area.

Given that they are both figureheads, there is a striking difference in behaviour in the area under discussion between the German Federal President and Australian Vice-Regal representatives. The latter have not vetoed Bills for many years, and some writers question nowadays whether they should do so even if in receipt of ministerial advice to that effect.

While therefore both sets of heads of state [] disclaim any policy-based role, [] and the day is probably still far off on which a German Federal President would refuse assent to a Bill for 'mere' reasons of policy — something which would in fact be a breach of the general duty to assent in art 82 1 — the Federal President has created for himself a role as a preliminary check on the constitutionality of legislative proposals alongside that of the Federal Constitutional Court which no Australian Vice-Regal representative would dream of assuming.

It would be unduly simplistic to see this difference as nothing more than a reflection of the fact that the one country is a republic, while the other is a monarchy. No Austrian President has ever vetoed a Bill. Something would of course depend upon the precise arrangements adopted under any proposed republic. A directly elected president might take a more expansive view of his role than an indirectly elected one.

From such a person even objections of policy could not be ruled out, unless perhaps the Constitution clearly provided otherwise. But the directly elected Austrian President has not adopted that course. Nor did the directly elected Weimar Reich Presidents, unless one regards case 1 above — involving the ban on duels and the additional punishment for soldiers to which Reich President von Hindenburg objected — as a case in which a policy objection was camouflaged by tendentious legal arguments. Even in that case there is only one exception in fourteen years, and it is significant that camouflage was felt to be required.

In the dying days of the Weimar Republic, once Hitler had begun to convert the Weimar Republic into a dictatorship using quasi-legal means, there were plenty of opportunities for similar objections which were not taken — although that certainly had something to do with von Hindenburg's precarious health coupled with the obvious failure of the Weimar democracy and a consequent lack of enthusiasm for defending it. A lot clearly depends on factors such as the existence of precedents, other features of the constitutional system and even chance, which vary more or less randomly from one legal order to another.

For example, if Federal President Heuss had not vetoed a Bill in the early s case 2 , it may well be that the lack of a precedent for vetoing Bills would have deterred all later Federal Presidents. Pointing out that later cases are by no means the first in German constitutional history is an obvious means by which a veto can be defended to the public. But if the possibility of referring a question of law to the Federal Constitutional Court for an advisory opinion had not existed at the time of case 2, quite possibly Heuss would not have dared to take the step he did and the crucial initial precedent would never have been created.

If this reasoning is correct the provision for reference to the Court lives on long after its abolition in Perhaps this is also why the situation in Austria is different: Similarly, in Australia the first precedent set in the early years after Federation was to assent and refer the issue to the courts, and it has been uniformly followed.

Tradition may also have a role to play in a manner which is non-random and permits some useful systematic comparisons about causes and effects. Thus the position of a republican president, even an indirectly elected one, is different in a number of ways from that of a representative of the Crown, even one whose tenure is not hereditary and who may possibly have some degree of recognition by the public one need only think of people as diverse as Sir William Deane or John Landy.

First, there is the obvious systematic difference that the German Federal President has some security of tenure. Under art 61 of the Basic Law , he cannot be removed except by an elaborate procedure involving an accusation by two-thirds of one House of Parliament that he has deliberately violated the law followed by a judgment to that effect by the Federal Constitutional Court. The tenure of an Australian Governor-General or State Governor, on the other hand, is, as far as the formal law is concerned, extraordinarily weak: Prime Ministers and State Premiers, for a host of good practical and political reasons, have been naturally reluctant to tender advice to Her Majesty to dismiss the Vice-Regal representative for no good reason.

But if push comes to shove, as on several occasions in recent times, [] a contest between the head of government and the Vice-Regal representative is always very likely to be won by the former. Secondly, the Federal President is indirectly elected in Germany and thus has some form of democratic legitimacy. There is a difference with Australian arrangements which is too obvious to require spelling out. However, this point should not be over-stressed, because the Austrian President has, if anything, more democratic legitimacy, being directly elected by the people, so the number of vetoes of Bills is obviously not directly proportional to the number of electors for the post of head of state!

A third level on which tradition and systematics may differ between Germany and Australia is in the more subtle level of 'atmosphere'. In a republic each office-holder has a sphere of responsibility allocated by the constitution and is responsible to the res publica for discharging that responsibility conscientiously. If that requires of the non-party head of state the occasional decision which might be characterised as a rebuke to politicians, then that need must be accepted as part of the system under which all office-holders are mere instruments of the constitution, and servants of the state.

On the other hand, even in Australia, where the mystique of monarchy has been attenuated almost to vanishing point, something still remains of the need to keep the monarchy and the Monarch's representatives completely above political and legal strife, avoiding the expression of any opinion whatsoever in formal constitutional functions such as assenting to laws which is opposed to that of the government in power.

Furthermore, it is not usual to speak of the monarchy's duties to the constitution; rather, we tend to focus on the advice which politicians may constitutionally give to the Crown and leave the Crown entirely out of day-to-day concerns.

It is seen as desirable for the Crown's representative not to engage in disagreements with the elected government even on dry legal questions, and it would hardly be possible to maintain this if occasional outbreaks of disagreement occurred as they have in Germany. In a republic, too, duties to the constitutional order tend to be seen in more black and white terms. Perhaps this tendency is further accentuated by the fact that Germany is a land of codifications. This difference is highlighted when one finds Professor Schoch in case 9 arguing that the Federal President had no discretion at all but was required to refuse assent in that case because the Bill concerned was unconstitutional.

Like Geoffrey Sawer in relation to the crisis of , [] I would insist on speaking of discretions rather than duties; but it is not possible for me to say how much of that is merely my common law training and habits of thought. At any rate, it is hard to imagine an Australian taking a similar black and white view in a case such as case 9, which did not involve the remotest danger to the continued existence of the democratic system itself.

Indeed, the German experience emphasises the dangers of vetoing laws to the good relations that should exist between the non-party head of state and the elected government. Case 9 in particular illustrates the sort of noises a government can make if displeased by a presidential veto on grounds which it considers open to doubt. These stresses and strains can be accommodated in a republic, but no Vice-Regal representative in Australia would be well advised to act in such a way. Even in Germany, the current Federal President is most unlikely to wish to provoke another such confrontation by vetoing further Bills, while for its part the government too will be on its guard in order to avoid an unprecedented third case; no doubt relations between the two parties have suffered and the easy confidence and frankness that we in Australia expect to exist between the head of state and head of government may well have been impaired, at least temporarily, in Germany.

There are certainly also practical difficulties with vetoing laws which may explain the contrary attitude taken in Australia. Obviously, the German practice means that an initial decision is taken in the Federal President's office; staff are employed at public expense to do the job which can almost always be done instead by the Court. Whether or not outside legal advice is sought, as is apparently considered to be unexceptionable [] and is doubtless sometimes necessary if this function is to be discharged properly, the Bill's assessors are anonymous and not subject to anywhere near the same degree of quality control [] or public and professional criticism of their opinions, views and performance as the judges.

The issue is, in other words, shifted from a public arena to a private one with all the disadvantages for open government that that entails. One does wonder whether the Germans really do need to have resort to the 'nuclear option' of veto by the head of state, when perhaps simpler methods of dealing with the problem might suffice. Advisory opinions might be reintroduced. Canadian practice, [] not to mention our own local practice under which Attorneys-General can sue for declarations as to the validity of a law, [] suggests that judgments unattached to any concrete controversy are by no means incompatible with the concept of judicial power.

In fact they are known in Germany too: Certainly an advisory opinion in the Immigration Bill case of would have enabled Federal President Rau neatly to avoid the issue presented to him without endorsing either the Bill and the apparent constitutional breach involved in the Bill's enactment nor yet the opposition's very strongly urged view that the Bill was invalid.

Advisory opinions would certainly be far preferable to the creation of controversy around the office of Federal President whenever there are reasons to doubt the constitutionality of a Bill and a decision whether to assent is expected. Whether or not advisory opinions are re-introduced, if it is thought that standing rules are too narrow to permit a challenge to some Bills — as was suggested in cases 7 and 8 — then perhaps they should be liberalised. At the moment the most commonly applicable rule is that one-third of the members of the Bundestag have standing to challenge legislation.

One might even ask whether there is any reason why any member of Parliament who voted against a Bill should not have standing to challenge it. If standing rules are so restrictive that they shift the pressure to consider arguments about unconstitutionality from the courts to the head of state, they are worse than useless. Thought might also be given to procedural changes designed to reduce the number of occasions on which the veto is required. For example, if more Bills are vetoed because of constitutional difficulties with small parts of them as in case 9, there could be a provision permitting the Federal President to send Bills back to the Bundestag with suggested amendments.

Such provisions already exist in several constitutions. One area in which German rules of constitutional procedure certainly do promote the occasional presidential veto is the capacity to challenge non-assent in court. This difference is another instance of the way in which the monarchical heritage of Australia continues to rule us, if not from its grave, then at least from a retirement home from which it rarely emerges: In the United Kingdom, of course, Her Majesty the Queen could not be sued for refusing to assent to a Bill, and no doubt this immunity attaches to those who exercise federal [] and State [] executive power in her name here.

As far as the common law is concerned, administrative law has made great strides in this area over the last half-century or so, but such high constitutional decisions are certainly still not susceptible to judicial review, [] even if a simple error of law were alleged to be the basis of a Vice-Regal decision. Even an action for a declaration, designed to establish the fact if it were the fact that assent had been refused as a result of misunderstanding the law, would no doubt fail. There would be great difficulty even in identifying a proper plaintiff, particularly if non-assent occurred on ministerial advice, while in other cases the spectacle would be presented of the Vice-Regal office-holder's being dragged through the courts by one of his constitutional advisors, presumably the Attorney-General.

Above all, no-one has a right to have royal assent granted to a Bill which would support a suit for a declaration of right. If the law of this country provided for advisory opinions, that road might be chosen, but of course it does not. A few cases do admittedly exist in which a mere Bill has been brought before the courts for appraisal — Attorney-General NSW v Trethowan [] is the best-known example — but in such cases the question has been whether a Bill might lawfully be presented by Ministers of the Crown for the royal assent despite a 'manner and form' provision apparently preventing that, and whether the provision was effective.

There was no review of Vice-Regal objections to a Bill that had already been presented for royal assent, and to which royal assent had been denied. Furthermore, those cases have been declared to be rare exceptions, bordering on indefensible anomalies, [] and they are therefore not likely to provide sound analogies in new situations. Unless some great ingenuity is manifested in the future, there is therefore no way in which Bills can be brought before the courts for a general declaration of their validity until — and unless — royal assent is granted to them.

Assuming therefore that the refusal of a Vice-Regal officer could no more be brought before a court in this country than could a similar refusal by the Queen in the United Kingdom, the law of Germany differs in an important respect from our law. Current German law is also unlike that of the Weimar Republic, [] let alone the Second Reich Monarchy — , [] which did not permit curial challenges to non-assent. This is another interesting example of the manner in which changes in the law can have the opposite result to that which at first sight might be expected.

The potential for a refusal of assent to be reviewed by the courts might, one would expect at first blush, lead to a reduction in the practice of refusal, as heads of state would be fearful of sustaining a loss and losing face. They do not have to listen to meretricious arguments from their governments to the contrary, let alone act on them as the Crown in Australia sometimes has to do. Rather, they can dare them to seek a determination of the question from the ultimate arbiter.

It is nevertheless open to some question whether Germany has gained much as a result of the greater willingness of the head of state to veto legislation. The controversy which attaches in some such cases to the office of Federal President may mean that the game is not worth the candle. It is very hard to see why any of the cases could not have been dealt with by less dramatic means, especially if the standing rules were liberalised. There is a lot to be said for our rule which protects the Crown from making similar decisions. Although our rule may seem an example of institutionalised hypocrisy and unnecessary limitations imposed by a lack of democratic legitimacy and tradition, the most noticeable outcome of what appears at first sight to be the more honest, rational and rule-of-law-respecting German position is the creation of trouble between the head of state and the head of government for no essential purpose.

Some of this might be avoided if art 82 1 were clearer or other amendments made, but more radically, the power to assent — really a remnant of the more or less constitutional monarchy that disappeared in — might be wholly abolished.

Bills passed by Parliament could be published on the authority of the Presidents of each House [] as nothing more than a certification that the Bill has indeed received the assent of the House concerned. This is already the system in some German States [] and the Australian Capital Territory, [] and in Malaysia the King has thirty days to assent, failing which he is deemed to have done so.

In cases of disagreement in Germany about whether the Bundesrat is required to be involved in the legislative procedure, there would of course be a difficulty in determining who should take responsibility for publishing the Bill. An express qualification could be added in very rare cases such as arose in in which the fact of approval by one House of Parliament is open to serious dispute. At best, assent can be defended as having emblematic value: If the power to assent were abolished, final and effective assent to disputed legislation would then be given, in cases of doubt, by a judgment of the Federal Constitutional Court in its favour.

Except in cases in which the entire constitutional order is under threat from proposed legislation, in which the one notorious precedent that exists suggests that Realpolitik pressures will be overwhelming anyway, it is hard to see what real value is added to a republican constitutional system by the power to assent. A symbolic act in a constitutional monarchy, if translated into a republican system, is out of place and can on occasions be mischievous, because it has to be taken seriously by a republican head of state who cannot shelter behind the mystique of a crown.

Warm thanks are also due to Dr Pittrof and the anonymous referees for their comments on a draft; the usual caveat applies. Federal-Provincial Relations in Canada, — Disallowance and reservation for a list of cases see Taylor, 'Two Refusals', above n 1, 87 fn 8 are also merely legal history nowadays: The last Australian example of final refusal of royal assent of which I am aware is recorded in Re Scully 32 Tas LR 3 , 29—30, but note the other cases involving delays or other unusual events, dealt with in the articles mentioned above n 1.

A Study in Canadian Government and Politics See, eg, Rodney Brazier, Constitutional Practice In the newer Commonwealth there are more recent examples of at least hesitation in granting assent, however.

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