COMMENTARY by Miroslav 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.
Moreover, it’s necessary to realize that we live in a time when a reference in the Constitution means hardly anything. The Supreme Administrative Court was similarly referred in it and it took ten years before anyone bothered to carry out the letter of the Constitution, and set it up. Why couldn’t something similar happen with the president? Maybe it would suit many people, and not only lawyers would glean enjoyment from such a situation. Why did we actually introduce a direct presidential election? I’ve yet to hear one meaningful explanation.
In theory, the alternative could be considered. The Senate, at the time of dissolving the lower house, can adopt legal measures instead of laws, if they concern an urgent matter. It would be an unusual solution; I can’t think of when the Senate assented to it, but why not? The condition of urgency would clearly be met. However, the Constitution expressly prohibits the Senate from adopting such legal measures in matters of “electoral law.” And although in this case it would be a specific vote, the Constitution does not distinguish in this respect.
Not one of the variants appears too applicable and it is really difficult to say what would happen in such a case. Apart from one certainty: lawyers would not be wanting for work. Even if the law on electing a president is approved in time, there is no lack of work. Five electoral laws are to be concluded — besides the law on parliamentary elections, the regional elections, the local elections and the elections to the European Parliament all have a special law. The government initially intended to prepare an electoral code that would unite them all, but it didn’t manage to do so. And who, other than lawyers, will be able to search for, compare, and interpret the differences between them?
Let’s go back to the basic question: Why did we actually introduce a direct presidential election? I’ve yet to hear one meaningful explanation. And since the Constitution has already been amended, nor am I likely to. Apart from the obligatory phrases that citizens want direct elections to provide them with more room to express their will. But is that really the case? What real powers does the president have?
According to the President of the Constitutional Court, Pavel Rychetský, very few. And there is already talk of severely limiting some of them in the future. The proposal that the president could only appoint members to the Czech National Bank (ČNB) Board with the approval of the Senate, has not been passed, but discussion continues. The above-mentioned constitutional amendment not only limits the president’s immunity but also his right to suspend criminal prosecution. Above all, however, the grounds upon which the Senate, with the consent of the Lower House, can lodge constitutional proceedings against the president have been expanded.
And in my opinion, quite unnecessarily. The current options for bringing a suit against the president for treason were quite adequate – for conduct “against the sovereignty and integrity of the Republic” or “against its democratic order.” Extending it to “gross violation of the Constitution, or other components of the constitutional order” is partly political theatre and partly an attempt to obtain a tool to force the President’s hand, for instance, to accelerate the signing of international treaties, because otherwise his conduct will be taken as a gross violation of the Constitution.
Gray mouse or Golden Nightingale?
So the president will be elected directly, while we gradually erode his powers? And we’ll call it strengthening citizens’ influence in running the state? Is this not a scam on the voters? The preliminary bill looks to be more than half a billion, and that’s just the direct costs.
An unbiased observer could easily get the impression that rather than the form of the election, the assessment of each president after his term is more important. We legitimize the fact that he was a merit to the state. Preferably in memoriam, so he cannot defend himself. Similarly as in the case of Václav Havel, so it was with presidents Masaryk, Beneš, and even M.R. Štefánik. In the case of Masaryk, it even had a charming postscript: “Let the eternal memory of this statement be carved in stone in both houses of the National Assembly.” One of the benefits of direct elections would allegedly be a weakening of political parties’ influence.
One of the benefits of direct elections would allegedly be a weakening of political parties’ influence. Apparently so the election becomes a “struggle of ideas and proposals.” However, instead of the parties, doesn’t a direct election strengthen the influence of big business groups that are already “pushing” one of “their” candidates into the media? Limiting the costs of the campaign is —without irony — a commendable idea. Paradoxically, however, won’t this lead to the fact that candidates will, on the contrary, need the support of the political parties for their success?
By the way, looking at the current polls on some of the potential candidates’ chances, it seems that it might be cheaper (and for all intents and purposes equally sufficient) to make the Golden Nightingale survey official, rather than have the intensive preparations for direct elections. In the current bizarre political situation, it wouldn’t surprise anyone. In my opinion, it wouldn’t go against the principles of direct elections contained in the Constitution, and anyway we still haven’t got the implementing law on direct elections. With the Golden Nightingale there would certainly be no threat of a gray mouse, albeit some political commentators see this as the right step.