COMMENTARY byMiroslav Uřičař/So far, the president of the Senate has not set an exact date for the presidential election, so the candidates cannot even start their election campaigns. Despite this, the media have been vying amongst themselves in reports about current preferences. Almost daily, we hear about who’s outdoing who.
Meanwhile, next January or February could be fun. In the current turbulent political situation, with the threat of early elections, it is not at all certain that Czechs will have an implementing act available.
The upcoming Czech presidential election provides an opportunity to highlight not only the presidential candidates, but also politicians. They are currently outdoing one another with their strong words. One senator, Jaroslav Kubera (Civic Democrats, ODS), would get rid of the upper house of parliament, the Senate, on the grounds that, with a directly elected president, we don’t need it any more; another, Constitutional Court chairman Pavel Rychetský, has threatened up to seven million complaints at the courts for an invalid presidential election. It cannot be ruled out that, in the case of early parliamentary elections, a draft law on the presidential election wouldn’t be approved in time.
Meanwhile, the implementing act on the presidential election successfully passed the first reading in the lower house (Chamber of Deputies), and since the draft amendments are submitted in the second reading, Czechs can look forward to the MPs’ creativity – unless early parliamentary elections come first. In such a case, the draft act for a direct presidential election would be swept off the table and the newly elected House would have to discuss it from the beginning again.
Of course, it would take time before new MPs are elected, the lower house meets, and committees are set up. The election itself also requires preparation — printing ballots, putting the candidate list together, and decorating the election rooms. Thus, it cannot be ruled out that, in the case of early parliamentary elections, a draft law on the presidential election wouldn’t be approved in time.
MPs were, however, active and have already changed the Constitution. Thus, next January or February the following situation may arise: The current president's term draws to an end, the Constitution calls for a direct election, but there is no implementing regulation to govern it. What would this mean in practice?
This is purely speculation, but why not give it a go. First off, let’s sum up the facts:
The current president, Václav Klaus, ends his term in office and can no longer stay.
The Constitution has been amended, making it no longer possible for Parliament to elect the president.
The act on direct election has yet to be passed.
What are the various options for development?
The president is elected without the implementing act. Theoretically, it’s possible. Or perhaps even obligatory? The Constitution clearly stipulates that the presidential election takes place in the last 60 days of the incumbent’s term of office (Klaus steps down in March 2013). In the absence of the implementing law, however, the election itself would lack a whole number of rules. Not even the president of the Senate, who, according to the Constitution, announces the presidential election, could set out these rules when announcing the election. Indeed, the Constitution presupposes the existence of a law that regulates the details.
Among them, for example, are the conditions for voting rights. Without such a law, we would not know whether those under 18 could also vote. There would also be anarchy when proposing candidates. It would not be clear what the candidate list would look like and contain, and, above all, who will register it, the manner of doing so, the time limits and what to do if the registrar doesn’t like the list and so on. Not to mention the judicial review – who, where, and in what time-limits can it challenge the registration or reject the candidate list and, in particular, who, when and where it can contest the outcome of the election itself.
An even wilder version
Czechs will be without a president. Under normal conditions, his office would be split between the PM and the Speaker of the House during the transitional period. If at the time, the lower chamber of parliament had been dissolved, because the president had dissolved it before the end of his term of office, then instead of the Speaker of the House it would pass to the Speaker of the Senate.
If you haven’t got completely lost in the chains of legal speculation, consider a sub-variant. In this one, instead of the president the prime minister could dissolve parliament, if the House so requested and if the president would not be in office at the time. It would, moreover, likely be the prime minister who would have handed in the resignation to the Speaker of the House instead of the president. (At this point I can’t express my sorrow that Czech, in contrast to English, has no pluperfect).
How long would such a transitional period last legally? Virtually unlimited. From the beginning of the “transitional” period, however, constitutional experts would have heated discussions, of no interest to the everyday citizen, in which one party would claim that the current situation is a violation of the Constitution, while the second would try to argue that the Constitution foresees a similar situation and counts on it.
It is true that the Constitution enshrines the division of the president’s role described above. It counts with it for situations where his office is vacant and a new president has yet to be elected. One way or another, even if everyone agreed that it is a violation of the Constitution, it would remain without any penalties. After all, there would be no one to penalize.