I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

constitutions. Thus, these two countries are barely distinguishable from two Group 2 countries (Canada and New Zealand) which, while having adopted Constitution Acts, recognise that the full constitution is incomplete without a number of other statutes, as well as conventions.

Moreover, the ease with which a constitution can be changed varies. For example, the United States has amended its Constitution only 27 times in over 200 years, whereas Germany has amended its Constitution nearly 50 times in less than 60 years. Denmark has never changed its 1953 Constitution. Thus, for countries whose constitutions contain a number of budget-related constraints, it may be difficult to introduce budget reform by law since constitutional change may be required.

Comparative international studies in constitutional law usually focus either on the differing constitutional rights of citizens or the differing political arrangements between countries. Although most countries accept the principle of parliamentary supremacy over the “power of the public purse”, there is a dearth of international studies on comparative constitutional provisions for budget preparation, adoption, execution and reporting. Part II attempts to fill this gap.

4.3. Hierarchy within primary law also partly explains differences in budget-related laws

In a country with a strong emphasis on a hierarchical system of law, the budget system is primarily “determined” by the country’s written constitution and any high-level law(s). The following discussion focuses on legal systems in which “organic” laws are an integral part and those in which “framework” laws are present. These distinctions are made in constitutions. Such constitutional provisions provide some explanation as to why the legal frameworks of the budget systems in some countries are dominated by “higher” primary law.

First, in some countries, constitutions require laws and regulations to be established according to a strict hierarchy (e.g. Spain, see Box I.3), under which laws of lower jurisdictions cannot conflict with laws of higher jurisdictions. A specific type of primary law – an “organic” law – is required by the written constitutions of France12 and Spain. The main characteristics of organic laws are:

●They are more difficult to change than ordinary laws (e.g. in France, organic laws have to be adopted by both houses of Parliament on identical terms and require an absolute majority – a supermajority is not needed for their adoption).

●In the case of conflict with ordinary laws, organic laws take precedence, even if the ordinary law is adopted at a point later in time than the organic law.

I.COMPARATIVE LAW, CONSTITUTIONS, POLITICS AND BUDGET SYSTEMS

Box I.3. Hierarchy of laws: The example of Spain

The rank, from higher to lower level, is:

●The Constitution, which lays out the various types of laws, as follows.

●Organic laws. These are a specific type of statute regulated by the Constitution. They differ from ordinary legislation in two ways:

The subject matter which they regulate is either specified in the Constitution (e.g. Statutes of Autonomy, the electoral system) or required in specific articles of the Constitution (e.g. organic laws are needed to establish the Council of State and the Constitutional Court).

The requirements for their approval, modification or repeal. Organic laws require an absolute majority of the Congress of Deputies in a final vote on the entire bill.

●European Union legislation. Any conflicts between domestic legislation and European legislation must be resolved according to the principle of the supremacy of Community law.

●Ordinary laws. These are laws whose subject matter is not reserved to organic laws by the Constitution. They require a simple majority of the Congress of Deputies and the Senate, with the Congress adopting the final decision.

●Decree-Laws. These are provisional legislative decisions that the government may issue for urgent matters. They rank as laws, but must be ratified by the Congress of Deputies within a period of 30 days.

●Legislative decrees. These are dispositions of the government containing delegated legislation. They also rank as laws. The delegation of power under which they are made must be granted by law.

●Regulations. These are lower status rules. The Constitution provides the government with regulatory power. However, other constitutional organs of the State, including the Congress of Deputies, the Senate and the Constitutional Court, also have regulatory powers. There are three main types of regulation:

Decrees from the Council of Ministers.

Orders from ministers or delegated commissions.

Instructions and orders of regulation from inferior authorities and public administration bodies.

Source: Cabrero (2002).