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STATE DECORATION AS PRESIDENT’S SIGN OF OFFICE

Автор Доклада: 
Stipre S.
Награда: 
STATE DECORATION AS PRESIDENT’S SIGN OF OFFICE

STATE DECORATION AS PRESIDENT’S SIGN OF OFFICE

Stipre Sintija, Mg.iur., postgraduate
School of Business Administration „Tur?ba”

There exist a number of studies on the rights and duties of the President of State and the impact thereof on public administration from the point of view of constitutional law. However, the symbols of office of a head of state are not studied – what those are today, what their meaning is that determines the legal status of symbols of office. In this report the author analyses one of the symbols of the President’s office – an Order. The author compares the rights of the President of Latvia to receive the highest state decorations with the practice in other European Union member states. Only the countries with the political system of a republic have been analysed , because monarchies have a different system of state honours. The theoretical part of the report deals with legislation and literary sources, but the empirical part is built upon the author’s experience of working at the Ministry of Foreign Affairs. The aim of the study is to develop a scientific theory on the significance of an order as a sign of office of the President of State and the use of this sign both during the tenure and after. Till this time no similar research has been performed on this topic in legal science, and the author hopes that the present report will encourage lawyers to take forward a discussion on symbols of office of a head of state, their meaning and legal regulation.
Keywords: symbols of office of the President, state awards, decorations, orders

In the accepted contemporary system of honours, orders are the highest sign of recognition conferred by the state. The author divides orders in two basic groups on the basis of their purpose:
1) orders of merit awarded to a person for outstanding merits for the benefit of the state and society;
2) the so called “protocolar orders” awarded in accordance with:
a) the principle of reciprocity – to ambassadors upon their completing their diplomatic tenure in the receiving state, if the sending state and the receiving state have concluded a respective agreement;
b) as the sign of office – to pay homage to the position held by the person at a definite time (conferred within the frameworks of state visits, upon the President when he/ she assumes the office).
It is important to note that “protocolar orders” are awarded only to foreign nationals. The only exception is the President who, when assuming the office, under the provisions of law is “automatically” entitled to the highest decoration of own state. Such a state decoration is not regarded as an order for merit but “a protocolar order” conferred ex officio as a sign of office.
Why does a state decoration become one of the signs of office to the President of the State? This is deeply rooted in centuries-old customs and the system of honours established in the state. According to historical sources, a new chevalier could be accepted into an order of knighthood only by the Grand Master of the Order – its founder or a successor in office. Thus the custom rose that a decoration could be conferred upon a person only by a person who is a bearer of the order himself. This custom is symbolically applied also these days: when starting his/ her office, the President is recognized as the Grand Master of the Collar Class of the highest state award of his own country and simultaneously, the Chancellor of the Council of Orders (terms may differ), to be entitled to confer awards on other persons (for instance, in Finland, France, Italy).
If the President is not the Chancellor of the Council of Orders, he/ she holds no voting rights at the Council's sessions in matters of awarding state honours. A classic example is the Law on State Awards of Lithuania, Article 9, paragraph 5 of which states the following: “If the President attends a meeting of the Council for the Awards, he shall preside over this meeting, but shall not vote”. However, the right to confer state honours can be guaranteed to the President by the Constitution. For instance, the Constitution of the Republic of Lithuania (Article 84, paragraph 22), the Constitution of the Republic of Bulgaria (Article 98, paragraph 8), the Constitution of the Republic of Estonia (Article 78, paragraph 15) and the Constitution of the Republic of Cyprus (Article 37, paragraph “d”) state that “the President of the Republic shall confer State awards“.
For its part, Article 40, paragraph 2 of the Constitution of Ireland adopted on 1 July 1937 states: "Titles of nobility shall not be conferred by the State (..)”. Ireland is currently the only member state of the European Union that has no decorations of its own. Notwithstanding a number of attempts in the end of 20th century to establish a state award, those initiatives did not win any support.
From among all 17 European Union states analysed in the report, Latvia is the only one where the President is not a member of the Chapter of Orders, although taking part in the Chapter of Orders sessions with voting rights. Even more – in the cases where the vote by the Chapter members splits evenly, the President casts the decisive vote . Although the President is entitled to the above specified rights under the law, the author believes that the procedures existing in Latvia does not correspond to the accepted practice, and, therefore, the regulation should be changed. The right to decide on conferring state honours, while not being a member of the Chapter of Orders, was provided for the President under the 1938 Law on Orders and Awards. It should still be taken into account, that Latvia in those days was ruled by an authoritarian regime (the state power following the 1934 coup is regarded as illegitimate from a legal point of view) characterised by the “leader’s” desire to take decisions alone, including also those on conferring honours. The author is of the opinion that “exclusive right” of voting at the Chapter of Orders, while not being a Chapter member, granted to the President in the Law of 1938 have been transposed without a deeper analysis into the 2004 Law on State Awards and thus come into a conflict with customary law. Although Article 38 of the Constitution of the Republic of Latvia states that „the office of the President shall not be held concurrently with any other office (..)”, this does not concern the position of the Chancellor of the Chapter of Orders as the function of a member of the Chapter of Order is an honorary duty performed without remuneration. This article of the Constitution refers to paid government jobs, the posts in the public, political or business field, but does not forbid the President to engage in research or creative activities or assume honorary positions unless this is contrary to professional ethics.
It could be argued the opposite that a decision on conferring honours on a person is a political resolution not administrative act as it is devoid of any features characteristic of an administrative act (it does not alter a person's legal status, does not grant any rights to or restrict those by an individual). If a President's decision on conferring honours is a political decision then, according to Article 58 of the Constitution of the Republic of Latvia, “a political responsibility for the fulfilment of presidential duties shall not be borne by the President. All orders of the President shall be jointly signed by the Prime Minister or by the appropriate Minister, who shall thereby assume full responsibility for such orders (..)”. A decision on conferring honours should, however, be viewed in broader meaning, not only within the classification of legal acts. A decision on conferring awards on persons does not have an impact on the economic activity of the country or its security, neither does it undermine the monetary system of the country or the development of a sector. A state award is rather an award of a moral character, a recognition expressed on behalf of the state and conferred by the President. This means that, by signing a decree on awarding certain individuals, the President of Latvia does not transgress the authority granted to him under the Constitution, and thus the decree does not require a countersignature. The President also has the right to hold the post of the Chancellor of the Chapter of Orders, this being an office of honour.
For its part, Article 12, paragraph 1 the Law on the orders and medals of the Republic of Bulgaria stipulates, that “the decrees of the President of the Republic of Bulgaria for the ceremony with medals and decorations shall be countersigned under Art. 102, paragraph 2 of the Constitution of the Republic of Bulgaria”, which means that the President of the State is not entitled to adopt decisions alone on conferring state honours, and his decree must be countersigned by the Prime Minister or the minister concerned corresponding to the principles of the Constitutional right.
The above said demonstrates that on all occasions the President's rights to a state decoration as a sign of office are closely related to his right to confer state honours to other persons. This right has been provided for either by a special law or the Constitution. However, in order to take part the sessions of the Chapter of Orders with voting right, the President should also be a Chancellor of the Chapter of Orders. If this is not the case, the President only has the right to sign a Chapter of Orders resolution on conferring honours to certain individuals. A resolution of the Chapter of Orders comes officially into effect only when signed by the President, and the author equates this procedure to the procedure for the promulgation of a law.
How many orders does a President receive when assuming the office? Having compared the practice in 17 states, the author has singled out five principal trends:
1) a President, upon assuming his office, receives only one of the orders established in the country. This is always the highest decoration in the hierarchy. In certain cases the law defines which of the decorations is the most important in the hierarchy, but, if that has not been specified, the presence of the Collar class of the Order can also indicate at the importance of the decoration. This is the practice followed in Austria, France, Italy, Lithuania, Slovenia and Germany. The principle stipulates: should a person be a holder of the highest state decoration, he or she is entitled to the right of conferring to other persons the decorations on the same level, or lower, in the hierarchy. The author agrees with this provision, but only concerning the cases where the definite hierarchy of honours has been established in a state, either prescribed by law or existing as a custom. If all orders in the country are of the same significance, this principle cannot be applied.
2) several state decorations have been established in the country, and the President, upon assuming the office, receives several of those, but not all. This practice is followed in Poland, where six (6) orders have been established: the Order of the White Eagle, the Virtuti Military Order, the Order of Poland Reborn, the Order of Merit of the Republic of Poland, the Military Cross and the Order of the Cross of Independence, as well as a number of decorations of a lower category – orders and medals of merit, awarded for outstanding accomplishments in military service or in life-saving, for a long-term commitment to civil service or specialised state services, and even for a long marital life (an award to those who had spent 50 years in marriage). In the article 23, paragraph 2 and article 25, paragraph 2, the Act on Medals and Decorations of the Republic of Poland stipulates that the President, having assumed the office, also becomes a knight of the Order of White Eagle and the Order of Poland Reborn (First Class), Grand Master of both Orders, and the Chair of both Chapters. Although the Act on Medals and Decorations does not establish a mutual hierarchy of honours, article 10, paragraph 1 defines the Order of White Eagle as the highest decoration of Poland. Upon completing his/ her tenure, the President of Poland automatically forfeits his/ her status as Grand Master of Order. Thus also the President of Poland receives state honours only as a sign of office for the duration of his tenure.
3) the President upon assuming the office receives the highest classes of all the orders established in the country. This is the practice in the Czech Republic, Latvia and Finland. In the author’s opinion, this principle is followed in the countries where all orders are equal in significance and their mutual hierarchy has not been established. In Latvia, three orders have been established, and following the taking of the solemn presidential oath at the Saeima (Parliament), the President is ceremonially presented with the Order of Three Stars (First Class and the collar), the First Class of Cross of Recognition and the Order of Viesturs. Presidents of Latvia Guntis Ulmanis, Valdis Zatlers and Andris B?rzi?? do not wear the orders on ceremonial occasions, as the etiquette requires that an order be worn only with white tie attire. President Vaira V??e-Freiberga, for her part, wore only the Order of Three Stars, First Class, with sash and star on her floor-length evening gown; however, she did not wear the collar of the Order. The Chief of Protocol of the Foreign Ministry of Finland indicates that on ceremonial occasions the President of Finland Tarja Halonen simultaneously wears all three orders awarded to her.
4) the President, upon assuming the office, receives a special order devised for this purpose – a symbol of office. Currently, only Estonia has this practice. The Law on the State Awards of Estonia in Article 4, paragraph 2 states: “The President of the Republic is the holder of the collar class Order of the National Coat of Arms. The Collar of the Order is passed on together with the office of President of the Republic”. Likewise, also judges and city mayors are holders of the collar of office only during their tenure. The Chief of Protocol of the Republic of Estonia indicates that there is only one set of the Order of the National Coat of Arms in use, which the President, upon relinquishing his position, leaves on the desk of his office together with a copy of the Constitution as a sign of office for the incoming President. The author believes that this principle can be applied in the cases when the Law provides for a special decoration for the President as a badge of office.
5) the President, on assuming the office, does not receive any state decorations. There may be two reasons to that: first, the Constitution of Ireland stipulates that the state does not award its citizens with any signs of recognition, and no orders have been established in the country. The second approach is illustrated by the practice of Greece and Hungary. The Greek Law of 1975 on orders and decorations states that in Greece there are four state decorations: the Order of the Redeemer, the Order of Honour, the Order of Phoenix and the Order of Beneficence. Article 1, paragraph 3 of the Law lays down lays down that "the incumbent President of the Republic is the Master of all the Orders", which is manifested in the following ways: the President has the right to accept persons to orders and confer respective decorations by a decree drawn up and signed by him or herself, upon a recommendation from the Minister for Foreign Affairs. The law, however, does not provide for any awards of the Greek state to be conferred on the President and the right to wear those during his/ her tenure. This is also confirmed by the Head of the Protocol Department of the Ministry of Foreign Affairs of Greece who said that the President, on assuming his position, does not de facto receive any state honours. Thus the President of Greece, during his/ her tenure, fulfils only a legal function in regard to state honours: he signs decrees on conferring awards on persons. A similar practice is pursued in Hungary, where the President does not “automatically” receive any decorations of his state either during or after his/ her tenure. The author has analysed this group of countries and concluded that the President has to be a bearer of the order de iure (in order to be able to award others), but need not bear an order de facto, as a corporeal thing. A practical aspect also should be considered: the etiquette of wearing decorations stipulates that an order is worn only with white tie. This dress code for ceremonial occasions is characteristic of monarchies and very seldom – of republics. If the state decoration cannot be worn by showing it due respect, the conferring of this decoration as a de facto sign of office loses sense. The author has also noticed that in the course of the last decade the formality of diplomatic ceremonies is being reduced in the diplomatic environment: the ceremonies become shorter, simpler and more democratic (also as concerns the dress code and rules of behaviour). Unlike in monarchies, white tie and decorations as signs of President’s office are used increasingly less in protocolar ceremonies in countries where the political framework is a republic.
Is the President, upon leaving his office, entitled to keep in possession the order (orders) that was his sign of office during presidency? Having compared the practice in the European Union member states, the author outlines three different approaches in addressing this matter:
1) the President is entitled to an order as a sign of office only during his/ her tenure, while, upon relinquishing his office, the President also loses the right to the order (Estonia). This concerns both the order as a corporeal object and the title of Grand Master of the Order in cases when the order is not presented de facto to the President as a sign of office during his/ her tenure, but he or she has been de iure declared Grand Master of Order (Greece, Hungary, Poland);
2) upon completing his/ her tenure, the President retains the right to the order only in cases when both chambers of the Parliament have voted positive (Czech Republic). This is related to the principle that the state decorations of the Czech Republic are orders of merit and, should the Parliament recognise that the President had gained merits in service to the state and the people during his time in office, the President is entitled to keep these decorations after his/ her tenure, not as a sign of office but as a state award for merits;
3) upon completing the tenure, the President “automatically” retains the right to the order for life (Austria, France).
The author believes that the first two models comply with the principles of a democratic state, because a decoration awarded to persons for their outstanding merits before the state and the people cannot be “automatically” conferred upon the President for the rest of his life after the completion of his/ her tenure. The use of an order of merit for protocolar purposes can significantly devaluate the substance of such an order, notably in the cases where the highest classes of an order are ex officio conferred upon state dignitaries while residents of that country receive merely the orders of lower classes, or medals of merit for their lifetime work. This is particularly risky in the cases where society holds a negative opinion about the President’s personal reputation (not his professional performance).
The author concludes that in the majority of the countries reviewed in the report the law does not regulate the President’s rights to retain the order, either as a sign of office or not, after the end of his/ her tenure. In practice the Head of State keeps the decorations awarded to him or her; still – is this not contrary to the legislation and customary law? Is the law being applied correctly?
Unlike the orders awarded for merit, an order as a President’s sign of office is characterised by three criteria: 1) the President of the State is entitled to the order and (or) receives one pursuant to the law; 2) there is no decision by the Council of the Order on the fact of awarding; 3) the President, upon assuming office, does not receive a document confirming the fact of awarding – the Diploma of the Order. If an order is also a sign of office conferred on the President ex offcio when assuming office, this means that after leaving office, the President also loses the right to bear symbols pertaining to this office (for instance, the State seal, the Standard of the President, and others. Similarly, also judges lose their right of bearing the collar of office upon completing their tenure.
A principle of public law stipulates that a public official may perform only the actions delegated to that public official by law. Where the legislation does not prescribe that the President is entitled to keep an order as sign of office after the completion of the tenure, the President, in the author’s opinion, has no legal right to “automatically” keep possession of this symbol of office for the rest of his/ her life.
In the author’s opinion, it would be worthwhile to consider and follow the example of Estonia or the Czech Republic: 1) either a special order is established as a President’s sign of office to be handed over after the end of tenure to the next president; or 2) the Parliament, as the body expressing the will of the people, takes a vote on conferring the highest state honours (originally, the sign of office) on the President after the end of his/ her tenure, thus awarding the President for his/ her merits in the service of the state and the people.

References:

  • 1. Law „Constitution of the Republic of Latvia”/ Adopted by the Constitutional Assembly of Latvia on 15 February 1922; as amended on 8 April 2009
  • 2. Law “Constitution of the Republic of Bulgaria”/ Adopted by the the Seventh Grand National Assembly on 13 July 1991; as amended on 6 February 2007
  • 3. Law „Constitution of the Republic of Lithuania”/ Adopted by citizens of the Republic of Lithuania in the Referendum of 25 October 1992; as amended on 25 April 2006
  • 4. Law “Constitution of the Republic of Estonia”/ Adopted by citizens of the Republic of Estonia in the Referendum of 28 June 1992; as amended on 27 April 2011 
  • 5. Federal Law on the establishment of Honour for Meritorious Service To the Republic of Austria / Adopted by the Parliament of the Republic of Austria on 2 April 1952, as amended on 18 November 2009 (Official Gazette of the Republic of Austria: BGBI No 89/1952)
  • 6. Law on the orders and medals of the Republic of Bulgaria / Adopted by the National Assembly of the Republic of Bulgaria on 29 May 2003, as amended on 19 April 2011
  • 7. The Act on the State Decorations of the Czech Republic (Act No 157/1994 Coll.)/ Adopted by the Parliament of the Czech Republic on 9 July 1994
  • 8. Decorations Act/ Adopted by the Riigikogu of the Republic of Estonia on 19 December 2007, as amended on 1 January 2011 (Official Gazette of the Republic of Estonia RT I 2008, 1, 7)
  • 9. Regulation (747/1942) of the Establishment of the Order of the Lion of Finland/ Adopted by the President of the Republic of Finland and the Prime Minister on 11 September 1942 
  • 10. Law on Legion of Honor, Military medal, National order of Merit (Statutory instruments)/ Adopted by the President of the Republic of France and the Cabinet of Ministers on 3 December 1963, as amended on 5 January 1990
  • 11. Law on titles, orders and decorations/ Adopted by the Bundestag of the Federal Republic of Germany on 26 July 1957; as amended on 19 February 2006 (Official Gazette of the Federal Republic of Germany, volume III, Nr. 1132-1)
  • 12. Law on State Decorations/ Law No 106, Adopted by the Parliament of the Hellenes on 18 August 1975
  • 13. Law on the Order of Merit of the Italian Republic/ Law No. 178, Adopted by the Parliament of the Italian Republic on 3 March 1951; as amended on 30 March 2001
  • 14. Law on State Awards/ Adopted by the Saeima of the Republic of Latvia on 4 March 2004, as amended on 1 May 2010 (Official Gazette of the Republic of Latvia Nr. 46 (2994), 2004)
  • 15. Law on State Awards (No. IX-975)/ Adopted by the Seimas of the Republic of Lithuania on 18 June 2002; as amended on 27 May 2003 (Official Gazette of the Republic of Nr.68-2762, 2002)
  • 16. Act of medals and decorations./ Adopted by the Parliament of the Republic of Poland on 16 October 1992 (Official Gazette of the Republic of Poland No. 90/1992)
  • 17. The decorations of the Republic of Slovenia Act/ Adopted by the Parliament of the Republic of Slovenia on 24 June 2004 (Official Gazette of the Republic of Slovenia No. 69/2004)
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