Doc. 9667

22 January 2003

Amendments to the Constitution of Liechtenstein proposed

by the Princely House of Liechtenstein

Statement of the Government of the Principality of Liechtenstein

to the Parliamentary Assembly of the Council of Europe

on the Constitutional Initiative of H.S.H. the Reigning Prince and

H.S.H. the Hereditary Prince of Liechtenstein

Vaduz, 21 January 2003

On 30 January 2003, the Parliamentary Assembly of the Council of Europe is to examine an ongoing constitutional revision initiated by popular initiative. The Parliamentary Assembly will do so following the request of a number of Liechtenstein citizens to the Council of Europe and the adoption of an opinion by the European Commission for Democracy through Law (Venice Commission) on this matter¹. Before an evaluation of the constitutional initiative under consideration is undertaken, the question should first be asked what the discussion is actually about and in which context the Council of Europe is acting.

The core of the substantive discussion is the question of democracy and the rule of law. This question is raised in a European environment shaped by cultural, social, and not least governmental diversity. This diversity requires mutual recognition and respect, which means no less than that Europe itself – in whatever manifestation – must be characterized by a fundamentally democratic attitude. This also includes a differentiated examination of the individual European democracies, whether these democracies are integrated into a republic or a monarchy. This further includes the recognition that there are no uniform standards for “democracy”, whether in Europe or globally. Is it a republic in which strong parliamentarianism reigns, but direct-democratic rights are largely lacking? Or is it a monarchy in which these direct-democratic rights are guaranteed? Or are both of these forms democratically equivalent in their own way and with regard to their respective circumstances (e.g., size, population, historically developed political system), even though they are so different?

Building on these ideas and in view of the possible debate of the Parliamentary Assembly on 30 January 2003, the essential features of the governmental and political system of Liechtenstein and the position of the Government of the Principality of Liechtenstein on the substance of the matter will be presented below. At the meeting of the Parliamentary Assembly of the Council of Europe in Strasbourg on 30 January 2003, Foreign Minister Dr. Ernst Walch will represent the Government and

explain its position regarding the popular initiative undertaken by H.S.H. the Reigning Prince Hans-

Adam II of Liechtenstein and H.S.H. the Hereditary Prince Alois of Liechtenstein to amend the constitution of the Principality of Liechtenstein, in view of the opinion of the Commission for Democracy through Law (Venice Commission) in this regard.

The Principality of Liechtenstein is “a constitutional hereditary monarchy on a democratic and parliamentary basis” (article 2 of the Liechtenstein Constitution) and accordingly a modern democratic state based on the rule of law. Liechtenstein citizens also enjoy extremely extensive direct-democratic rights which, to this extent, may hardly be found in any other state.

The Constitution of 1921 currently in force is based on a consensus reached by the then Reigning Prince and the people of Liechtenstein and builds on the idea of dualism of the Prince and the people. The power of the state is vested in the Prince and the people according to article 2 of the Constitution and is exercised by both in accordance with the Constitution. This dualism entails that the Constitution assigns authority necessary for the exercise of the power of the state to the Prince and the people – or the Parliament as the representative organ of the people – in a measure roughly ensuring balance of power between the two. Moreover, the principle of consensus inherent in the dual structure of the state entails that the most important functions of the state can only be exercised on the basis of agreement and in collaboration between the Prince and the people or Parliament. In particular, neither the Prince alone nor the people or Parliament alone can enact legislation; both are necessary. The Prince also has no executive powers allowing him to rule without the Government.

In the context of the accession of Liechtenstein to the Council of Europe, it was determined that Liechtenstein fulfills the conditions necessary for membership on the basis of the Constitution of 1921. Accordingly, the organizational principles of the state enshrined in the Liechtenstein Constitution were recognized and removed from debate. In the view of the Government, the popular initiative of the Reigning Prince and the Hereditary Prince changes nothing in this regard, as the following comparison of the current Constitution with the constitutional initiative will show, focusing on the essential points:

a)       Immunity of the Reigning Prince and countersignature of the Prime Minister

According to article 7 paragraph 2 of the Liechtenstein Constitution (Liechtensteinische Verfassung, LV), the Reigning Prince is sacred and inviolable. The immunity and non-responsibility of the Reigning Prince as Head of State is thereby codified. The Prime Minister assumes responsibility through the requirement of countersignature of the acts of the Reigning Prince (article 85 LV)². The reformulation of article 7 paragraph 2 in accordance with the text of the initiative does not result in any substantive modification of the immunity of the Prince. Article 85 (countersignature) is not an object of the constitutional initiative and would therefore remain unchanged if the initiative is adopted by the people. The principle of countersignature of the acts of the Reigning Prince and the related assumption of responsibility by the Prime Minister is and remains fully enshrined in the Constitution.

b)       Sanction requirement for enactment of legislation

As mentioned above, the Liechtenstein governmental system is based on the dualism of Prince and people. This dualism is also expressed when enacting legislation. In order for a proposal to become law and enter into force, it requires the assent of Parliament, if necessary the assent of the people (in case of a referendum), the sanction of the Reigning Prince, and finally the countersignature of the Prime Minister. The sanction of the Reigning Prince is to be understood as a constitutive act of participation in the sense of the dualism described above and as an exercise of his part of the power of the state³.

The sanction of the Reigning Prince for the enactment of legislation is also already provided for in the Constitution of 1921 (article 9 LV) and is not an object of the constitutional initiative. The time limit on granting or explicitly refusing legislative sanction as proposed by the initiative (article 65 paragraph 1) is merely a guarantee of legal certainty in cases where a decision on sanction has not yet been made. Until now, it has not been stipulated what happens to a law that has been adopted by Parliament, but the decision on granting or explicitly refusing sanction has not yet been made. According to the provision proposed by the initiative, the Reigning Prince must be aware that six months of inaction on his part are constitutionally equivalent to refusal of sanction. The Constitution thus creates a definite legal consequence with exactly the same effect as an explicit refusal of sanction. The omission becomes an act by means of a legal fiction (“…is as if…”).

In the constitutional reality of Liechtenstein, the Reigning Prince has, with the exception of a few specific cases, always granted his sanction to laws adopted by Parliament since the entry into force of the Constitution of 1921.

c)       Right to issue emergency decrees

The current Constitution merely provides in article 10 that the Reigning Prince will take necessary precautionary measures in urgent cases for the security and welfare of the state. In order to strengthen the rule of law, the constitutional initiative establishes various limits to the right of emergency decree: Emergency decrees may not suspend provisions of the Constitution, but may merely limit the application of specific provisions temporarily. Moreover, the untouchable and non-derogable rights of the European Convention on Human Rights are explicitly incorporated. Finally, emergency decrees are lifted after at most six months. It is indisputable that emergency decrees also require the countersignature of the Prime Minister in accordance with articles 85 and 86 LV⁴. In Liechtenstein doctrine, the existence of a state or legal emergency is also not subject to controversy. A description in the Constitution is hardly possible due to the theoretically imaginable variety of such situations. Moreover, the rule of law as practiced in Liechtenstein necessitates that emergency decrees be issued according to the principle of proportionality. Accordingly, emergency decrees have so far only been issued under the Constitution of 1921 that, given the circumstances, have been appropriate and absolutely necessary to attain the goals in the predominant public interest.

d)       Appointment of judges

According to the current Constitution, the Reigning Prince has an absolute right to veto the appointment of judges. The Reigning Prince is not required to appoint a judge elected by Parliament. The constitutional initiative aims to accord the nomination of judges to a body composed of representatives of Parliament and the Minister of Justice. The Reigning Prince himself would preside over this body and would be entitled to delegate the same number of representatives to the body as Parliament delegates. This body recommends candidates to Parliament for election. If Parliament elects a candidate, the Prince must appoint the candidate. If Parliament rejects a candidate, and if Parliament and the nominating body are unable to reach an agreement within one month, Parliament shall nominate an opposing candidate and set a date for an election by the people. The Prince must appoint the candidate elected by the people. This initiative would remove the absolute veto of the Prince in the appointment of judges. Although only candidates may be recommended to Parliament who have been approved by the Prince in the nominating body, thereby moving the veto forward, the veto can be broken if Parliament nominates as an opposing candidate the candidate rejected by the Prince.

e)       Status and dismissal of the Government

In accordance with the dual system of the Constitution which vests the power of the state in the Prince and the people, the Government is appointed by the Reigning Prince in mutual agreement with Parliament on the recommendation of Parliament and is responsible both to the Prince and to Parliament (article 78 and 79 LV).

With regard to dismissal of the Government (article 80 LV), an interpretation of the Constitution was agreed upon by Parliament, the Government and the Reigning Prince in 1965, according to which the Government always requires dual confidence, namely of the Prince and of Parliament. If the Government loses the confidence of either the Prince or Parliament, the Government is to be dismissed. The provision proposed by the constitutional initiative corresponds to the status of the Government in the dual constitutional system and is the constitutional codification of the interpretation of article 80 LV reached by all sides in 1965⁵. Furthermore, the initiative now envisions that the Prince must immediately appoint an interim government responsible to Parliament and subject to a vote of confidence in Parliament within four months. With this provision, the current danger of a period without a Government and therefore of a possibly ensuing emergency situation is eliminated.

f)       Supremacy of law

Regardless of the question of the division of authority between the Prince and the people and the individual powers of the two sovereigns, the rule of law and therefore the supremacy of law are guaranteed by the Liechtenstein Constitution.

According to article 7 paragraph 1 LV, the Reigning Prince is bound by the provisions of the Constitution and of laws when exercising his right to the power of the state. His immunity changes nothing in this regard.

The position of the Reigning Prince as Head of State, his immunity, and the fact that his sovereign acts, in accordance with his authority, are of a highly political nature entail the principle of non-justiciability of these sovereign acts.

This principle is however broken by the constitutional jurisdiction of the Constitutional Court, comprehensively enshrined in Liechtenstein by article 104 LV. Every person who believes his or her constitutionally guaranteed rights to have been infringed upon by an act of the Reigning Prince may turn to the Constitutional Court in this regard by means of a constitutional complaint. Moreover, the Constitutional Court has comprehensive authority of judicial review. This entails that the Constitutional Court may annul an unconstitutional law, even though it has been sanctioned by the Reigning Prince.

Conclusions:

The draft amendments to the Constitution in accordance with the popular initiative of H.S.H. the Reigning Prince and H.S.H. the Hereditary Prince of Liechtenstein do not change the balance of power established by the Constitution of 1921. Rather, direct-democratic rights are expanded in some areas and the rule of law is strengthened. The supremacy of law is and remains guaranteed.

The initiative of H.S.H. the Reigning Prince and H.S.H. the Hereditary Prince of Liechtenstein has been signed by 37% of the citizens of Liechtenstein who are entitled to vote and this initiative, together with the initiative called “Verfassungsfrieden” which has been signed by 11% of the citizens of Liechtenstein who are entitled to vote, will be put to a public vote on the weekend of 14-16 March 2003, according to mandatory legal provisions.

If the current Constitution of 1921, as it was in force at the time Liechtenstein joined the Council of Europe, complies with the rules and standards of the Council of Europe, then this must also be true at least to the same extent of the amendments proposed by the initiative.

An evaluation of the Liechtenstein monarchy on the basis of democratic criteria, as with other European monarchies, must begin with the constitutional reality. This reality shows that Liechtenstein is a living democracy based on the rule of law. The monarch, who certainly enjoys a strong position, faces a strong people endowed with extremely extensive direct-democratic rights and protected in its constitutionally guaranteed rights by the rule of law.

¹ “Opinion on the Amendments to the Constitution of Liechtenstein proposed by the Princely House of Liechtenstein”, no. 227/2002, adopted on 16 December 2002, CDL-AD(2002)32

² The opinion of the Venice Commission consistently ignores the principle of countersignature enshrined in Liechtenstein.

³ The opinion of the Venice Commission misjudges this by referring to a “veto” (cf. paragraph 21). Moreover, the example of Belgium given by the Commission shows that the sanction requirement enshrined in the Belgian Constitution definitely does play a role in the constitutional reality, otherwise the steps described would not have been necessary.

⁴ Contrary to the evident assumption of the Venice Commission (paragraph 32).

⁵ Contrary to the opinion of the Venice Commission (paragraphs 18 and 19), nothing therefore changes compared to the current provisions concerning dismissal of the Government. However, article 80 paragraph 2 as proposed in the text of the initiative would now require agreement between the Prince and Parliament to dismiss individual Ministers, which would strengthen the position in particular of the Prime Minister relative to the Prince.