The Federal President

In 1920 the Federal Constitution had provided that the Federal President should be elected by the Federal Assembly and the Federal Government by the National Council. This gave Parliament a particularly strong position, which was sharply criticised by many.

A Constitutional Amendment gave more power to the Executive in 1929: The highest office in the state was endowed with new rights such as popular election and the right to appoint and dismiss the Federal Government and dissolve the National Council.

Since the constitutional reform of 1929, the Federal President has had the power to appoint the Federal Government. But it is essential that the Federal Government has the support of a National Council majority in order to realise its projects and not to constantly face the threat of being toppled by a vote of no confidence.

It is therefore standard practice for the Federal President to entrust, after a National Council election, the chairperson of the party that has obtained the most votes with forming the Government. For appointing the Federal Chancellor the Federal President need not rely on any proposals from whatever source, while the other Members of Government are appointed upon the Federal Chancellor’s proposal. The Federal President can dismiss the Federal Government - or only the Federal Chancellor – if s/he so decides, but individual Government members can only be dismissed if the Federal Chancellor so proposes.

The Federal President can dissolve the National Council upon the Federal Government’s proposal, but only once for the same reason. This provision paves the way for new elections in times of political crisis. In such cases the newly elected National Council has to convene on the 100th day after dissolution at the latest.

To date, the National Council has only once been dissolved by the Federal President: this was in 1930, when Federal President Wilhelm Miklas complied with the request of the Federal Government to obviate a vote of no confidence that was threatening the minority government he had previously appointed.

The Federal President is responsible to the people, and the people might depose him/her by referendum. The decision to hold such a referendum lies with the Federal Assembly (which, for its part, can only be convened by the National Council). If the voters decide not to depose the Federal President, however, the National Council is therewith dissolved.

As it is, the Federal President is immune to public prosecution. However, the National Council can convene the National Assembly for the purpose of approving public prosecution of the Federal President. If the Head of State violates the Constitution in his official capacity, the Federal Assembly can bring charges against him/her before the Constitutional Court. These provisions are, however, only meant to cover exceptional situations and have not so far had any practical importance in the Second Republic.

The Federal President regularly convenes the National Council sessions – once a year for the ordinary session, and extraordinary sessions whenever requested by the Federal Government, one third of the Members of the National Council, or the Federal Council. This is done in the form of a written Presidential Resolution.

The Federal President confirms that the laws “have been passed in accordance with the Constitution“ before they are made public. This formula has repeatedly been under fire, because “in accordance with the Constitution“ is not entirely clear – is it that the rules of the legislative procedure have been formally complied with, or can the Federal President also harbour, and voice, concerns of a substantive nature?

There is a clear-cut answer: the Federal President has no right to reject a law for political reasons – no veto the way the President of the United States has. His/her power is limited to a purely legal assessment, and refers first and foremost to the legislative process. The Constitutional Court, on the other hand, puts the laws to the test in a most detailed process that may sometimes take more than a year and in the course of which it painstakingly examines the contents of the law.

So far, there has been only one case (in January 2008) in which the Federal President has refused to authenticate a proposed law. The reason was that an amendment of the Trade Regulations contained a retroactive punitive passage - a thing expressly forbidden by the Constitution.

The Federal President can decree the holding of a plebiscite concerning a federal law or a federal constitutional law for three reasons: if the National Council so decides; in response to a demand by Members of the National or Federal Council seconded by a sufficient number of members; or on the basis of a change of the Federal Constitution as a whole.

The Federal President cannot decide on his/her own accord that a plebiscite be held.

The Federal President has special powers in exceptional situations – for instance natural disasters or war: in strictly defined circumstances s/he can modify laws and order certain measures to be taken by emergency decree, and s/he can decide to move the seat of the chief organs of the state and the National Council to a different location.

If the National Council cannot meet – for instance in the case of disasters – the Federal President can, on the Federal Government’s proposal, change the law by decree. Such emergency decrees have to be submitted to the National Council at the earliest possible time, when the National Council adopts a law in accordance with the decree or repeals the latter.

Whenever the Federal President takes action as the highest organ of the Administration, s/he can issue decrees or regulations; the latter are officially called “resolutions" (or “general resolutions“). S/he can also move the seat of the chief organs of the state and the National Council to a different location.

If the Head of State is prevented from exercising his/her duties the Federal Chancellor steps in for him or her, but only for the first twenty days.

In the case of his/her absence for a longer period or if his/her office falls vacant (e.g. by his/her death, demission or loss of office, e.g. following a judgment of the Constitutional Court), his/her duties are taken care of by the three Presidents of the National Council.

After each census the Federal President determines, on the basis of the number of citizens registered, how many representatives each federal province is to have in the Federal Council. This is promulgated in the form of a presidential resolution published in the Federal Law Gazette.

The Federal Council shares the right to demand that the Federal Assembly be convened to decide on whether to bring charges against the Federal President for a suspected violation of the Federal Constitution.

When requested by the Federal Government, the Federal President may dissolve a Provincial Diet, but only once for the same reason. Such dissolution must be approved by the Federal Council by a two-thirds majority of the votes cast in the presence of at least half of its members. Representatives of the province whose diet is to be dissolved must not participate in the vote.