145
Direct election of the president
and its constitutional and political consequences
Jan Wintr, Marek Antoš, Jan Kysela
Abstract:
The introduction of direct presidential elections in the Czech Republic was
motivated mainly by the bad experience associated with the last indirect
election in 2008 and efforts to respond to the long-standing desire of the
Czech public for election of the president by popular vote. The intention of
the constitution-maker was not a transition to a semi-presidential system,
but rather to maintain the existing parliamentary form of government. The
key factor for the constitutional position of the president remains the
provisions of the Constitution stating that the president is not accountable
for the discharge of his office and that the government is accountable for the
majority of the head of state’s decisions. Many specific restrictions of the
presidency follow from constitutional conventions created over the course
of the last 20 years of the independent existence of the Czech Republic and
partially relate to rules existing in other parliamentary systems. President
Miloš Zeman, vested with stronger legitimacy as a result of direct election, in
some cases attempted to change these constitutional conventions and to
interpret his powers in an expansive manner.
Keywords:
Direct election; head of state; constitutional conventions; parliamentary
system; semi-presidentialism
1. President of the Czech Republic in a parliamentary form of
government
The Constitution of the year 1992 established the Czech Republic as a
parliamentary democracy.1
Our constitutional system stems from the first
Czechoslovak Republic of 1918–1938, also a parliamentary democracy, as
well as from the Third Republic in France of 1871–1940, which was the
model used for the constitution of the first Czechoslovak Republic.
In a parliamentary form of government (a parliamentary democracy),
political power belongs to the parliament and the government. The head of
1
According to the explanatory report on the government proposal of the Constitution
(Czech National Council print Ref. 152 of 1992) “it (the Czech Republic) is a
parliamentary democracy” where “the parliament dominates over executive power, in
particular the government, which is accountable to the Parliament for its acts” which
“relates to the traditions of the first republic” (Czech National Council 1992).
2016 | Vol. 8 | No. 2
146
state is the representative of the state, guarantor of order, and mediator of
political disputes, but it is not the role of the head of state to implement its
own policy. This fact is respected by the Constitution, which explicitly states
that the president is not accountable for the discharge of his office (Article
54, paragraph 3), where the government is accountable for the majority of
the decisions of the president (Article 63, paragraph 4). With the exception
of a limited group of exclusive presidential powers (certain powers granted
by Article 62 of the Constitution), in order to be able to exercise power the
president requires a countersignature of the prime minister or a member of
the government authorised by the prime minister. This is the case for
presidential powers under Article 63, paragraph 1 of the Constitution as well
as for powers arising from ordinary laws. A presidential act that has not been
countersigned is not valid. The government is accountable for countersigned
presidential acts. The government is politically accountable: an inappropriate
countersignature may result in a vote of no confidence in the Chamber of
Deputies (the lower house of Parliament). The criminal liability of the
countersigning member of government is also conceivable.
The president cannot make a valid act under Article 63 without the
countersignature of the prime minister (or a member of the government
authorised by the prime minister); issues arise, however, when the
government wishes the countersigned act to be passed but the president
fails to act. It may be inferred that if the government is accountable for the
exercise of a certain power, it is at the same time accountable for the failure
to exercise the power; it applies generally in law that harm may result not
only from acting but also from failing to act (omission). Some authors infer
that a president that is not accountable is, in these cases, basically bound by
the will of the government with which the president shares such
competence. Thus the president has a duty to approve the proposal of the
government to make a certain decision, unless it is an exceptional case, for
example if the president justifies withholding his decision by claiming that
the act is unlawful (Antoš 2011: 32). In cases when the president decides
about the public rights of individuals, the administrative courts inferred their
competence to review the presidential decisions as well as a possible failure
to act.2
The president plays an important role in the division of government into
branches and system of checks and balances. The limitation of presidential
power – which may briefly be referred to as the principle of a nonaccountable
head of state – is evident from the principle of government by
the people and specifically the principle of representative democracy. This
characteristic is not affected by the change in the manner of election of the
president introduced by Constitutional Act No. 71/2012 Sb., replacing
2
This was specifically the case when then President Václav Klaus ignored some
governmental candidates for judgeships without issuing an explicit rejecting decision.
The administrative courts decided that this was an illegal failure to act (Supreme
Administrative Court 2008).
Direct election of the president and its constitutional and political consequences
147
election of the president by both houses of parliament (the Chamber of
Deputies and the Senate) with direct election (the Constitutional
amendment became effective on 1 October 2012; the first direct
presidential election was held in January 2013).
This conclusion is based on four arguments (Wintr 2015: 68): (a) the
government, accountable to the Chamber of Deputies rather than to the
President, is still the supreme body of the executive power under the
Constitution; (b) it follows from the provisions of the Constitution stipulating
that the Czech Republic is a democratic state respecting the rule of law
(Article 1, paragraph 1 of the Constitution) and that the government serves
all citizens (Article 2, paragraph 3), that authority is connected with
accountability, and the Constitution still explicitly states that the president is
not accountable and that the government is accountable for the majority of
presidential acts; (c) the explanatory report on the Constitutional Act No.
71/2012 Sb., as well as the parliamentary debate at the time when the act
was adopted, clearly show that the will of the legislature was to maintain the
principle of representative government; and (d) also in the opinion of the
Constitutional Court expressed after this change of the Constitution, “the
constitutional system of the Czech Republic is based on the system of
representative democracy (Article 2, paragraph 1 of the Constitution) and the
representative form of government, and this is not affected by the
introduction of the direct election of the president” (Constitutional Court
2013).
What remains unclear, however, is what the impact will be of two
political factors on constitutional practice: (a) a higher degree of democratic
legitimacy of the president elected directly by the people and therefore
elected by the majority of voters (as opposed to the legitimacy gained in the
past through indirect election by the majority of directly elected members of
Parliament), and (b) the election of a strong personality,3
clearly determined
to act in an activistic manner in the office and to strive for an expansive
interpretation of his powers.4
Constitutional law is not limited to the text of the Constitution and other
laws; to a considerable extent, it is formed by the judgments of the
Constitutional Court in particular, as well as by the practice of constitutional
3
As revealed by comparative studies in the region, the manner of election of the
president is not the key variable determining the strength of the president’s position or
the extent of the president’s conflicts with other political players (cf. e.g. Baylis 1996:
297-323).
4
This determination of President Miloš Zeman is best revealed by his steps after the
resignation of the government of Petr Nečas in June 2013, when he ignored the
demonstrated will of all the political parties represented in the Chamber of Deputies
and appointed a de facto presidential government led by non-party member and exminister
of Zeman’s former government, Jiří Rusnok, whom he later appointed to the
Bank Board of the Czech National Bank.
2016 | Vol. 8 | No. 2
148
bodies which may become constitutional conventions.5
It depends therefore
primarily on the other constitutional bodies (in particular the Chamber of
Deputies, the Senate, the government, and the Constitutional Court) – as to
their attitude towards possible deviations from existing practice or
conventions. If the bodies acquiesce to it, if they do not intervene, the
constitutional position of the president may shift as a result of such practice
of the constitutional bodies without any changes to the text of the
Constitution.6
An alternative model to the parliamentary republic that is most
frequently discussed in this context is a semi-presidential republic (a
presidential republic is out of the question as it is incompatible with the
principle of liability of the government to the Parliament that is enshrined in
the Constitution). In his interesting book entitled Současná česká politika
(Contemporary Czech Politics), political scientist Michal Kubát defines the
semi-presidential system as follows: “In semi-presidentialism, executive
power is two-headed, where both of its components, that is the president
and the government headed by the prime minister, in reality govern the
country. In addition to being the head of state, therefore, the president holds
executive power but must share it with the prime minister. The president and
the prime minister are autonomous of each other, because each of them
relies on a different legitimising basis. The president is independent of
Parliament as he is elected separately from Parliament and is not politically
accountable to it. On the other hand, the prime minister (and the
government) is derived from Parliament and is politically accountable to it.
This means that it may operate only with the consent of the Parliament. The
president may under certain circumstances dissolve the Parliament” (Kubát
2013: 25-26). The author concluded that the Czech Republic clearly remains
a parliamentary system even after the introduction of direct election of the
president, because the president does not have real power. He may exert
influence, but he does not have power, that is the possibility to govern, i.e.
to adopt decisions which someone must submit to. That power rests with
the government, which is accountable to the Chamber of Deputies (Kubát
2013: 62-63).
Giovanni Sartori analyses the semi-presidential system as a system of two
engines in contrast to the parliamentary or presidential system, which have
5
The constitutional conventions are not a source of law and therefore are not legally
binding; however, in the past the Constitutional Court attached certain legal relevance
to the constitutional conventions (Constitutional Court 2001). In the court’s opinion, if
there are several possibilities of interpretation of a certain provision of the Constitution,
as a rule priority is given to the interpretation reflecting long-term practice
(constitutional convention).
6
As aptly stated in this context by J. Elster, the existence of a constitutional convention is
conditional upon the conviction of the political players that if they violated the
convention they would clearly have to face a negative reaction from other players. “If
violating (a constitutional convention) … causes no reaction … it never existed in the first
place” (Elster 2007: 28).
Direct election of the president and its constitutional and political consequences
149
only one engine: When one engine stops working the other may take over;
however, the danger consists in the possibility of both engines working
against each other (Sartori 1997: 153). The president in a semi-presidential
system is not only a representative, guarantor, and mediator, but also one of
the policymakers.
It cannot be excluded that the Czech constitutional system will tend to
shift towards a semi-presidential form of government. This is indicated by
strong respect for the office of the president since the times of the so-called
“President-Liberator” T. G. Masaryk, who was the first Czechoslovak
president (1918–1935), the combination of the charismatic revolutionary
leadership of V. Havel with the office of the president (1989–2003), the
repeated election of distinctive characters of Czech politics for the office of
head of state, long-term tolerance for a rather expansive interpretation of
the powers of individual presidents by their institutional milieu and the
general public (disputes over discretionary powers or the time limit to act,
frequent foreign-policy activities deviating from the government line)
(Kysela, Kühn 2007), certain crises of the parliamentary system (inter alia
eight governments over the course of 10 years between 2003 and 2013,
often supported by shaky or no majorities at all), as well as the already
mentioned combination of direct election of the president and the activistic
attitude of the first winner of such an election. The appointment of the
“presidential cabinet” headed by Jiří Rusnok in July 2013 was certainly a step
in that direction on the part of President Zeman. In an interview for a
prominent Czech daily, he reacted to the objection that by doing so he had
breached the existing constitutional conventions by saying that “the notion
of constitutional conventions is totally idiotic, because if they really were
constitutional, then they would be somehow enshrined in the Constitution.
They are only conventions. The president, despite being directly elected,
cannot change the Constitution; however, he certainly has an inviolate right
to change conventions that are not enshrined in the Constitution” (Právo
2013). Future developments of the system thus, as mentioned above, in fact
depend on the reaction of other constitutional bodies and political players.
The semi-presidential system would hardly be feasible in the Czech
Republic without changing the Constitution. The Czech president does not
have powers as does for example the French president: he can neither
dissolve Parliament7
of his own accord nor bypass it by means of a
7
The president may dissolve the Chamber of Deputies only under conditions that are
difficult to fulfil and the exhaustive list thereof is provided in Article 35 of the
Constitution. Since the formation of the Czech Republic there have been three serious
political crises that resulted in a snap election. In all of these cases, however, the
deputies decided on dissolution (or reduction of the term of office), as the Constitution
does not provide the president with sufficient authority to dissolve Parliament. After
the amendment of the Constitution in 2009, the most practicable path towards a new
election is provided by Article 35, paragraph 2 of the Constitution, under which the
president dissolves the Chamber of Deputies upon the proposal of three-fifths of the
deputies.
2016 | Vol. 8 | No. 2
150
referendum. And it is totally out of question for him to issue decrees.
Appointment of the government irrespective of the Chamber of Deputies
therefore has potential to create problems rather than to solve them; in
order to be able to govern efficiently, the government needs to enforce
laws, and this cannot be done against the will of the Chamber of Deputies.
The system would be blocked and fall into intractable conflicts. It is
important to remember that even a strong French president appoints a
prime minister from the opposing political camp if the latter has a majority
in Parliament (so-called cohabitation8
).
The parliamentary system and the semi-presidential system are of course
only theoretical models, and constitutional and political reality may be
anywhere between them or outside those two models. However, they are
proven, elaborate, and functioning systems providing a certain guarantee of
stability and foresee ability for the running of the state and politics in
general. Based on the above-mentioned, we conclude that (a) the Czech
Republic remains a parliamentary republic rather than a semi-presidential
one, and (b) a semi-presidential system could not work well in the Czech
Republic without further significant changes to the Constitution to
strengthen the power of the president (Kubát 2013: 78).
2. Reasons for the introduction of direct election, the form of
constitutional change, and the course of the first presidential
election
The story of direct election of the Czech president probably began on 8
February 2008 in the Spanish Hall of Prague Castle. This is not to say that
there had not been any proposals to change the manner of presidential
election before;9
rather it was the scandalous course of the last
parliamentary election of the president that created the environment in
which the proposal to introduce direct election succeeded.
The first day of that election was marked by procedural disputes as to
whether a secret ballot or recorded vote should be used in the election.
Between eight and nine in the evening, there was a nervous recorded vote
for a president by a show of hands, in the course of which the television
microphones in the hall recorded various vulgarisms that echoed for a long
time among the public. There was also information about threats or
blackmailing. The president was not elected in the first two rounds of the
election on 8 February 2008, nor in the third round held on the following
day, a Saturday. Václav Klaus was elected for his second term of office in the
third round of the second election on 15 February 2008.10
8
Such a situation occurred in France in the years 1986–1988, 1993–1995, and 1997–
2002.
9
For an overview of such proposals c.f. e.g. Kysela 2008; Kudrna 2011.
10
For a detailed description see Wintr 2010: 389-398.
Direct election of the president and its constitutional and political consequences
151
The government of Petr Nečas on 30 June 2011 submitted a proposal to
introduce direct election of the president, and on 20September 2011 the
proposal was introduced to the Chamber of Deputies by Minister of Justice
Jiří Pospíšil (Civic Democratic Party; Občanská demokratická strana - ODS).
His speech is interesting for its complete absence of reasons for changing the
manner of election of the president; according to Pospíšil, the government
submitted the proposal “in accordance with the government’s policy
statement”. The minister went into more detail only on the issue as to
whether the proposed change to the Constitution should result in
strengthening of the president: “The Czech Republic, which is in principle a
parliamentary republic, may have a directly elected president without it
being necessary to change the powers of individual constitutional bodies of
the Czech Republic. This is based in principle on comparative experience,
where a similar system of division of government as in the Czech Republic
works, for example, in Austria, Slovakia, and many other countries that are
parliamentary democracies where the president does not have a more
significant or let us say dominant position. Therefore, the proposition – that
in case of a change of election of the president, in case of the introduction of
direct election, there should be a priori a change in powers in order to
strengthen the position of the president – does not apply. If this happened,
we would shift from a parliamentary democracy to a semi-presidential
system, which is by no means the intention of the coalition government”
(Chamber of Deputies 2011a).
None of the deputies and senators supported abandoning the principle of
parliamentary government. On the contrary, the constitutional amendment
resulted in a partial weakening of the powers of the president (the power to
discontinue prosecution and to order that prosecution not be commenced
was transferred from independent powers to countersigned powers).
Furthermore, all motions to amend that were submitted by the opposition
(in particular by deputies of the Czech Social Democratic Party (Česká strana
sociálně demokratická - ČSSD) and the Constitutional Law Committee of the
Senate) were directed at weakening rather than strengthening the powers of
the president.
The government bill amending the Constitution (amended by the Prime
Minister Bohuslav Sobotka (ČSSD) in relation to presidential pardon and
immunity) was adopted on 14 December 2011 by the Chamber of Deputies
by 159 votes out of 192 deputies present (Chamber of Deputies 2011b). The
Senate passed the amendment of the Constitution by 49 votes out of 75
senators present on 8 February 2012.
In the meantime, the government started drafting the implementing
statute to regulate the election of the president. It was submitted to the
Chamber of Deputies on 27 February 2012. The Chamber of Deputies passed
it on 13 June and the Senate adopted it on 18 July. However, Act No.
275/2012 Sb. to regulate the election of the president of the republic had
(and still has) at least two weak points. The first is related to the assessment
2016 | Vol. 8 | No. 2
152
of whether the requirement of 50 000 signatures of citizens supporting the
particular candidate was met; the second consists in the actual impossibility
to efficiently check whether the candidates complied in the election
campaign with the limit of expenditures of 40 million CZK (and 50 million CZK
if they advanced to the second round).
While the latter issue was eventually brushed aside and doubts
concerning the funding of the winner’s campaign in particular have never
been dispelled, the former issue resulted in a scandal, proceedings before
the Supreme Administrative Court, and nearly in postponing the first direct
election.
Under Articles 56 and 57 of the Constitution, a candidate for president
must be a citizen of the Czech Republic, eligible for election to the Senate
and therefore older than 40, and nominated by at least 20 deputies, 10
senators, or a single citizen, “providing that such nomination is supported by
a petition signed by at least 50 000 citizens eligible to vote for the president
of the republic.” The president is elected through a two-round system based
on an absolute majority; if none of the candidates receive an absolute
majority of valid votes, a second round is held within two weeks with the
two most successful candidates and the candidate receiving more valid votes
is elected.
Groups of deputies nominated Karel Schwarzenberg and Přemysl
Sobotka, a group of senators nominated Jiří Dienstbier, and the remaining
candidates submitted to the Ministry of Interior the petition sheets by 6
November 2012.
The Ministry of Interior proceeds in accordance with s. 25 subsections 3
to 6 of the act to regulate the election of the president. The petition must be
signed by at least 50 000 citizens who state their name, surname, date of
birth, and permanent address. The Ministry of Interior first excludes
incomplete details and then verifies the correctness of details on a randomly
selected sample of 8 500 citizens who signed the petition. If incorrect details
are identified in the case of at least 3% of the citizens who signed it, the
Ministry carries out a check of another sample of the same size: “If the
Ministry of Interior finds out that the second sample displays errors in fewer
than 3% of citizens who signed the petition, the Ministry of Interior will not
include citizens of both samples in the total number of citizens who signed
the petition. If the Ministry of Interior finds out that the second sample
displays errors in 3% or more of citizens who signed the petition, it will
reduce the total number of citizens who signed the petition by the number of
citizens corresponding in terms of percentage to the error percentages in
both samples that were checked” (Act No. 275/2012 Sb).
The Ministry of Interior concluded on 23 November that the number of
signatures on the petition sheets of presidential candidates Jan Fischer,
Taťána Fischerová, Vladimír Franz, Zuzana Roithová and Miloš Zeman was
sufficient. The candidatures of Jana Bobošíková (the Ministry accepted 45
428 signatures out of the total 56 191), Vladimír Dlouhý (38 686 signatures
Direct election of the president and its constitutional and political consequences
153
accepted out of 59 165) and Tomio Okamura (35 750 signatures remained
out of 61 966) were rejected. All three turned to the Supreme Administrative
Court.
In the meantime, a fierce media debate began. As early as 23 November,
the media (Klesla, Koděra 2012) began drawing attention to a doubtful
procedure used by the Ministry of Interior, which interpreted s. 25 (6) of the
act in a manner that resulted in combining the percentage error rates of the
first and second samples and reducing the total number of signatures by this
sum rather than an average error rate. In the case of Jana Bobošíková, the
error percentage of the first sample was 7.7% and of the second sample
11.5% (Supreme Administrative Court 2012). The error percentage in both
cases exceeded 3%, and so the Ministry should have reduced the total
number of 56 191 signatures by “a number of citizens corresponding in terms
of percentage to the error percentages in both samples that were checked”.
In the case of Jana Bobošíková, the average identified error percentage in
two samples having 8 500 signatures was 9.6%. After deducting this share,
Jana Bobošíková would still be left with a sufficient 50 810 signatures. The
Ministry of Interior, however, combined both error percentages and by so
doing reduced the total number of signatures for her candidacy by 19.2%,
which meant that she fell below the 50 000 signatures required by the
Constitution.
The Supreme Administrative Court decided in favour of Jana Bobošíková.
However, even the correct calculation did not help Vladimír Dlouhý or Tomio
Okamura overcome the minimum threshold of 50 000 signatures. While
Vladimír Dlouhý acquiesced, Tomio Okamura, a senator, filed a
constitutional complaint on 27 December. The Constitutional Court was put
under time pressure, because the first round of presidential election was
planned to take place as early as 11–12 January.
The Resolution of the Supreme Administrative Court Vol. 11/2012 of 13
December 2012, which was challenged by the constitutional complaint filed
by Tomio Okamura, was remarkable in many respects. It is one of the first
decisions of the Supreme Administrative Court containing a dissenting
opinion; this option has been granted by s. 55a of the Rules of
Administrative Procedure Act since January 2012 to the election panel and
the extended panel of the Supreme Administrative Court. The common
dissenting opinion of three judges revealed that the election panel dismissed
the proposal of Tomio Okamura by a narrow majority of 4 to 3 votes.
The three dissenting judges considered the act to regulate the election of
the president as unconstitutional and preferred the option of suspending the
procedure and filing a motion to the Constitutional Court to cancel the act.
This would almost certainly make it impossible to hold the election on the
planned dates. The main objection against the implementing statute was the
fact that it does not enable checking the authenticity of the signatures; the
check is then limited to checking that a citizen of the name, surname, date of
2016 | Vol. 8 | No. 2
154
birth, and permanent address exists and that such a citizen is not included in
the petition sheets of a particular candidate more than once.
The majority of four judges of the election panel reviewed the procedure
applied by the Ministry of Interior and concluded that after the correct
application of s. 25 of the act, Tomio Okamura would have 48 859 valid
signatures, which is below the threshold set by the Constitution. The
election panel also mentioned another fact to the disadvantage of Tomio
Okamura: he clearly had the highest error percentage of all candidates
(19.4% in the first sample and almost 23.0% in the second sample).
As mentioned above, Tomio Okamura filed a constitutional complaint on
27 December 2012. In its judgment Pl. ÚS 27/12, the Constitutional Court
dismissed Okamura’s complaint on 10 January 2013, one day before the first
round. It dealt in detail with all the complainant’s objections, including
questioning the constitutionality of the requirement for 50 000 signatures
itself. The Constitutional Court stated: “This number is based on
consideration of the constitution-maker, which clearly reflects the fact that
the constitutional system of the Czech Republic is based on the system of
representative democracy (Article 2, paragraph 1 of the Constitution) and a
parliamentary form of government, and this remains unchanged even after
the introduction of direct election of the president. The specific number of
petitioners reflects the consideration with respect to the minimum sufficient
support of a candidate as an expression of the earnestness of his
candidature. (…) This is why it is not possible to accept the objection of the
complainant that he was discriminated against compared to other
candidates nominated by groups of deputies or senators, because the
relevance of their support for candidature results from the mandate of
deputies and senators, who themselves were elected by a certain number of
voters. This also reflects the principle of a parliamentary form of government
that is preserved despite the introduction of direct election of the president”
(Constitutional Court 2013).
The Constitutional Court also rejected the complainant’s theory that the
Ministry could arbitrarily manipulate the complainant’s sheets. The
Constitutional Court did, on the other hand, concede that the weakness of
the act to regulate the election of the president lies in the impossibility of
authenticating the signatures: “The act to regulate the election of the
president contains a loophole that could be evaluated as unconstitutional, as
it does not require the verification of genuine, unmistakeable, and
individualised demonstration of will of the petitioner, that is authentication
of the signature. If the purpose of the petition is to identify relevant support
and the earnestness of the candidature, it is not possible to do so only by a
manner that leaves it unclear whether the petitioner really provided his own
details and signature or whether he provided the details of his family
members or other persons whose personal details in the scope required by
the act to regulate the election of president are known to him. (...) The
Constitutional Court is convinced that the legislature will remedy this defect
Direct election of the president and its constitutional and political consequences
155
in the act to regulate the election of the president as soon as possible and
will close the loophole in such a manner that authentication of the
demonstration of will of the petitioner is ensured whether a priori during the
collection of signatures or ex post in the course of checking the petition
sheets. While doing so, the legislature also has the opportunity as a
constitution-maker to change the wording of the Constitution and reduce the
required number of supporters” (Constitutional Court 2013).
This is truly a problem for future elections. A reasonable reaction would
be to reduce the required number of signatures for the presidential
candidate from 50 000 to for example 8 000 but to impose the duty to
collect the signatures in a manner that can be authenticated, such as at the
post office or through the so-called data boxes, which is a special system
used in the Czech Republic for authorised and registered on-line
communication between state agencies and individuals.
In any case, this defect of the law was not detrimental to the complainant
because, as stated correctly by the Constitutional Court, an actual check on
the authenticity of the signatures in the petition sheets would rather
definitely deteriorate the position of the complainant.
The first round of the presidential election was held on the planned dates
of 11–12th
January 2013 and Miloš Zeman and Karel Schwarzenberg
advanced to the second round of the election. After a fierce election
campaign between the first and second round, in the end Miloš Zeman was
elected president on 25 January 2013.
3. Powers of the president and the impact of direct election on
the exercise of powers
The powers of the president may be classified into representative,
guarantor, and mediator; some powers have the character of checks in the
division of government (this is an ideal classification, a specific power, such
as calling an election, may have both a representative and a mediating
aspect) (Wintr 2008: 24-34).
Primarily representative in nature is the majority of presidential powers
under Article 63, paragraph 1 of the Constitution (the president represents
the state internationally; concludes and ratifies treaties; is the commanderin-chief
of all armed forces; receives, appoints, and removes ambassadors;
calls a parliamentary election; appoints and promotes generals; confers and
awards honours and distinction; and appoints judges); some powers under
Article 62 (summons the session of the Chamber of Deputies, signs bills into
law); and powers arising from laws (primarily the appointment of professors
and rectors of universities). These are the classic powers of a head of state
as the highest representative of the country, personifying the state internally
and externally, in which the republican heads of state relate to a similar role
of kings. Purely representative powers may be exercised for example by the
president of Parliament (or one of its chambers) or prime minister; however,
they are involved in everyday political conflicts, which makes it more difficult
2016 | Vol. 8 | No. 2
156
for them to fulfil the symbolic role of representatives of the entire country,
of all citizens.
Mediator powers are primarily the power to appoint and remove
members of government and to accept their resignations, and the power to
dissolve the Chamber of Deputies in cases defined by the Constitution. The
text of the Constitution gives the president a certain degree of discretion in
exercising these powers, which may be used by the president to contribute
to the efficient and smooth solution of political disputes. It is assumed that
allowing Parliament to elect and remove the government and its members
directly without involvement of the head of state as a mediator could be
dangerous for political stability as well as for compliance with the principles
of limitation of governance (division of government). This is why the
presidential power to appoint and remove the government and its members
is at the head of Article 62 of the Constitution as well as core to the interest
of the public. However, sometimes the actual exercise of these powers by
the president threatens to be a complication rather than facilitation of the
operation of the system.
The president as the head of state also plays an important role of keeper
of values that form the basis of the state; the president is the guarantor of
order. This function of guarantor explains the power of the head of state to
return bills to Parliament and to file motions to repeal laws to the
Constitutional Court. The sense of guarantee may also be attributed to the
right to grant a pardon. The guarantee dimension is also present in some of
the already mentioned powers, primarily in the appointment of members of
the government and accepting their resignation, perhaps also in the
ratification of treaties, as chief command of the armed forces, and in the
appointment of generals; the head of state as the top representative of the
people guarantees that persons will not be appointed nor decisions adopted
that would endanger the sovereignty, integrity, and democratic order of the
republic. The guaranteeing powers of the president represent the guarantee
of order, constitutionality, morality, or national interest. They represent one
more guarantee that may not be necessary but which is certainly beneficial
to have.
The power of the president to appoint judges of the Constitutional Court
and of general courts, to appoint the president and vice-president of the
Supreme Audit Office, and to appoint the members of the Bank Board of the
Czech National Bank does not have only a representation character, but also
plays an important role as a balancing element in the division of
government. It would not be desirable to vest the power to appoint
members of independent bodies of the judicial and executive branch in the
Chamber of Deputies or in the parliamentary government; such a solution
would make the Chamber of Deputies too powerful. This is why these
powers of appointment are either shared by several state bodies, including
the president, or vested in the head of state, who stands outside of the
everyday political arena. The nature of a check in the division of government
Direct election of the president and its constitutional and political consequences
157
is also present in other already discussed powers of the president, in
particular granting pardons, returning bills, and dissolving the Chamber of
Deputies.
4. The role of the president as a key in forming government
The president is vested with important powers in forming the government.
The government is formed after every election to the Chamber of Deputies,
as the government has the duty to resign after every constituting session of
the Chamber of Deputies (Article 73, paragraph 2 of the Constitution). In
such case the president has a duty to accept the resignation and to charge
the government with performance of their offices on a temporary basis until
the new government is appointed (Article 73 paragraph 3 and Article 62 (d)
of the Constitution).
Under the Constitution, the formation of the government commences
with the appointment of the prime minister by the president. The
Constitution does not stipulate who is to be appointed by the president;
however, it should clearly be a person able to (or at least having a chance to)
gain, together with the government, the support of the majority of the
Chamber of Deputies. In most cases, the person identified by the party with
the highest number of mandates in the Chamber of Deputies was
appointed.11
The Constitution does not even state the time limit within which the
president must appoint the prime minister. Nor, in general, does the
Constitution impose any time limits on the procedure of forming the
government; in this way, the Constitution leaves room for political
negotiations of the representatives of parliamentary parties as well as the
president. However, there is a strongly prevailing interpretation that the
president and the prime minister have a duty to take the relevant steps
without undue delay.12
The procedure of President Zeman after the snap
election of the Chamber of Deputies held on 25—26 October 2013 was
questionable. The president delayed the appointment of the prime minister
until the formal signature of the coalition agreement and more than one
week after that, on 17 January 2014 (83 days after election), he appointed
the chairman of the winning Czech Social Democratic Party (ČSSD), Bohuslav
Sobotka. The government was appointed on 29 January 2014, as a result of
which the “presidential cabinet” headed by Jiří Rusnok was in power for
11
This is true of eight cases in the years 1996, 1998, 2002, 2004, 2005, 2006 (twice; the
first Topolánek government failed to gain confidence in the Chamber, the second
coalition government did gain confidence), and 2014. However, in four cases this did
not happen; three times a non-party member was appointed to lead a caretaker
government and once, in 2010, the president appointed the chairman of the party
having second largest number of mandates, who had already agreed on a majority
coalition.
12
Cf. e.g. the opinion of Tomáš Herc in (Rychetský et al. 2015: 583), or Pavel Molek in
(Bahýľová et al. 2010: 840).
2016 | Vol. 8 | No. 2
158
nearly six long months after the cabinet had lost a confidence vote in the
Chamber of Deputies.
The president then appoints other members of the government on the
advice of the prime minister and charges them with the management of
ministries or other offices (Article 68, paragraph 2). The president is
therefore bound by the advice of the prime minister: he cannot appoint as
member of government a person not proposed by the prime minister, and
he cannot charge a member of the government with the management of a
ministry or other office unless advised to do so by the prime minister. The
president may decide not to proceed in line with the prime minister’s advice
and reject his candidate only in very exceptional cases. In the parliamentary
form of government, the prime minister and the government majority in the
Chamber of Deputies, respectively, are politically accountable for the
composition of the government. It is appropriate for the president to delay
the act of appointment in particular if the immediate appointment of a
minister could result in an unconstitutional situation. In this manner, in
November 2005 President Klaus refused to appoint David Rath as Minister of
Health until he resigned from the office of the president of the Czech
Medical Chamber, because “a member of the government must not perform
activities the nature of which contradicts the performance of their office”
(Article 70 of the Constitution).
When forming Sobotka’s government, President Zeman indicated that he
might refuse to appoint other members of government also on political
grounds. This opinion, however, was subject to strong criticism from both
politicians and experts. In the end, the president accepted all nominations of
Prime Minister Sobotka and by doing so de facto confirmed the
constitutional convention of the president appointing all nominated
members of government, if there are no legal impediments to their
appointment. President Zeman even appointed as deputy prime minister
and minister of finance Andrej Babiš, the chairman of the ANO movement,
who had failed to submit a negative lustration certificate.13
Government members take charge of their offices at the point when the
deputy prime ministers and ministers are appointed upon nomination of the
prime minister. This is when the resigning government, performing its offices
on a temporary basis, terminates its activities. Within 30 days of
appointment, the government appears in the Chamber of Deputies and
requests the chamber to vote on a matter of confidence. If the government
fails to gain sufficient support of the absolute majority of deputies present, it
fails to gain confidence and thus the government has a duty to resign (Article
73, paragraph 2 of the Constitution). The president accepts the resignation
13
The Lustration Act is still in effect in the Czech Republic, preventing former registered
collaborators of the communist secret police (Státní bezpečnost) from holding offices.
The relevant provisions are not totally clear as to whether they apply also to members
of the government, and in this respect there are various contradictory interpretations.
Traditionally, however, the act applied to government members.
Direct election of the president and its constitutional and political consequences
159
and charges this government with holding its offices until a new government
is appointed. The described procedure is then repeated: the president
appoints the prime minister and then appoints other members of the
government upon his nomination. Within 30 days after the appointment, the
government appears in the Chamber of Deputies requesting the chamber to
vote on a matter of confidence. If even the second government fails to gain
confidence, the president appoints a prime minister of the third government
upon nomination of the Speaker of the Chamber of Deputies (Article 68,
paragraph 4 of the Constitution). If even this third government fails to gain
confidence, the president may dissolve the Chamber of Deputies. After
amendment of the Constitution by the Constitutional Act No. 319/2009 Sb.,
a three-fifths majority of all deputies may also enforce dissolution of the
Chamber of Deputies at any time before the president’s dissolution after a
third failed attempt to form a government.
Up until the year 2013, the formation of the government was in line with
the principle of parliamentary government. After the introduction of direct
election of the president and the election of the activistic President Miloš
Zeman, who after the resignation of Prime Minister Petr Nečas appointed in
July 2013 a de facto presidential cabinet, it became clear that this system is
dysfunctional and endangering to the constitutional principle of
parliamentary government. In particular, the second presidential attempt to
form a government does not make sense. If the president has two attempts
to form a government and decides to act irrespective of the will of the
majority of the Chamber of Deputies, for several weeks or even months
there may be a government in power which relies only on the confidence of
the president rather than of the Chamber of Deputies, which contradicts
Article 68, paragraph 1 of the Constitution. In addition, such a government
without a majority in the Chamber of Deputies cannot govern efficiently,
because the vast majority of ideational political steps are taken through
adopting and amending laws. Such a situation also creates considerable
potential for abuse, among other reasons because it evacuates the purpose
of the countersignature of presidential acts by the prime minister and the
accountability of the government for such acts; if the presidential acts are
countersigned by the prime minster of a government relying solely on the
confidence of the president, the countersignature ceases to be a check
against the wantonness of a constitutionally non-accountable president.
The models of forming government in Poland and Germany are better
suited to the principle of parliamentary democracy. The Polish system is
similar to the Czech one, but is restricted by relatively strict time limits and
already the second attempt to form government is vested in Parliament. The
German system goes even further and does not enable the appointment of a
chancellor who is not elected by the Bundestag. The Polish system thus
leaves room for presidential initiative; the government appointed by the
president, however, cannot govern without the majority in the Sejm for
longer than one month. The German system does not enable solely
2016 | Vol. 8 | No. 2
160
presidential cabinets.14
The government and individual members of it may
resign at any time, the government does so on the basis of a resolution, a
member of the government resigns in writing through the prime minister.
With the exception of for example a mandatory resignation of the
government (in particular, in case of vote of no confidence), the president is
not obliged to accept the resignations. On the contrary, as a mediator of
political disputes the president may, by rejecting a resignation or postponing
its acceptance, leave room for further political negotiations. This option was
used by President Klaus at the beginning of April 2005 when he probably
prevented a fatal disagreement in the government coalition by postponing
the acceptance of the resignation of the Christian Democratic party
ministers and in the end accepted only the resignation of the entire
government of Prime Minister Stanislav Gross, which enabled continuation
of the government coalition even though headed by a different prime
minister. The postponed acceptance of resignation may also be appropriate
in some critical situations for the state. However, it is clearly impossible for
the president to keep a minister who does not want to remain in office as
“forced labour” for a long time by delaying the acceptance of his resignation.
According to the Constitution, the Czech prime minister is the first among
unequals in his government.15
The government is a collegiate body deciding
as a board with the absolute majority of all members of the government
(Article 76 of the Constitution); the prime minister has one vote, just like any
other member of the government. However, the prime minister determines
the composition of his government – chooses all other members of
government (the president appoints them upon nomination by the prime
minister) and, more importantly, may remove any deputy prime minister or
minister. The president has a duty to approve the proposal of the prime
minister to remove a member of the government.16
If the prime minister
resigns, his resignation is deemed the resignation of the entire government
(which was the case with the resignation of Prime Minister Klaus in
November 1997 and in other cases, including the resignation of Prime
Minister Nečas in June 2013). The factual position of the prime minister in
the political system depends on the current political circumstances and on
the political power of the person holding the office of prime minister (in
Czech politics, we could use as a test the question of what happens when
14
In reaction to the negative experience with presidential cabinets in the period of crisis
of the Weimar Republic (1930–1933).
15
Cf. known typology in (Sartori 1997: 102-103).
16
Therefore we may consider unconstitutional the conduct of President Václav Klaus in
April 2011 when he did not approve the proposal of Prime Minister Petr Nečas to
remove Deputy Prime Minister Radek John and Minister of Education Josef Dobeš (he
removed the first one after 10 days and did not remove the second one at all). The text
of Article 74 of the Constitution clearly does not give the president any discretion or the
possibility to delay such removal.
Direct election of the president and its constitutional and political consequences
161
the prime minister proposes removal of a minister from another coalition
party without the consent of that party).
5. Conclusion
The introduction of direct election of the president in the Czech Republic
was motivated mainly by the bad experience associated with the last indirect
election in 2008 and efforts to respond to the long-standing desire of the
Czech public for election of the president by popular vote. The intention of
the constitution-maker was not a transition to a semi-presidential system,
but rather to maintain the existing parliamentary form of government. This
conclusion is supported by extensive evidence, including the explanatory
report concerning constitutional amendment and the course of debate in
Parliament when the amendment was adopted, and also the contents of the
constitutional amendment, which did not extend the powers of the
president in any manner. The key factor for the constitutional position of the
president remains the provisions of the Constitution stating that the
president is not accountable for the discharge of his office and that the
government is accountable for the majority of his decisions. Many specific
restrictions of the president follow from constitutional conventions created
in the course of the last 20 years of the independent existence of the Czech
Republic and partially relate to rules existing in other parliamentary systems.
President Zeman, vested with stronger legitimacy as a result of direct
election, in some cases attempted to change these constitutional
conventions and to interpret his powers in an expansive manner. There are
no appropriate constitutional grounds for such shift. However, the president
might still succeed unless other political players, in particular the
government and the Chamber of Deputies, keep him within his
constitutional limits.
References
Act No. 275/2012 Sb. to regulate the election of the president of the
republic.
ANTOŠ, Marek (2011). Pravomoci prezidenta republiky po zavedení přímé
volby. AUC Iuridica, no. 4, pp. 27-41.
BAHÝĽOVÁ, Lenka et al. (2010). Ústava České republiky. Komentář. Praha:
Linde.
BAYLIS, Thomas A. (1996). Presidents versus Prime Ministers: Shaping
Executive Authority in Eastern Europe. World Politics. Vol. 48, No. 3, pp. 297-
323.
ELSTER, Jon (2007). Unwritten Constitutional Norms (unpublished
manuscript).
2016 | Vol. 8 | No. 2
162
CHAMBER OF DEPUTIES (2011a). Stenographic record of session of the
Chamber of Deputies, 20 September 2011, [cit. 2016-01-10]. Available at
www.psp.cz/eknih/2010ps/stenprot/023schuz/s023039.htm.
CHAMBER OF DEPUTIES (2011b). Voting record, 14 December 2011, [cit.
2016-01-10]. Available at www.psp.cz/sqw/hlasy.sqw?G=55266.
CZECH NATIONAL COUNCIL (1992). Explanatory report on the government
proposal of the Constitution. Czech National Council print Ref. 152 of 1992.
CONSTITUTION OF THE CZECH REPUBLIC. [cit. 2016-01-10]. Available at
www.psp.cz/en/docs/laws/constitution.html.
CONSTITUTIONAL COURT (2001). Judgment of the Constitutional Court of
20th
June 2001, file ref. Pl. ÚS 14/01.
CONSTITUTIONAL COURT (2013). Judgment of the Constitutional Court of 7
January 2013, file ref. Pl. ÚS 27/12.
KLESLA, Jan, KODĚRA, Petr (2012). Prezidentská blamáž: Vnitro udělalo
chybu ve výpočtu, Bobošíková měla projít, iHned.cz, 23. 11. 2012.
KUBÁT, Michal (2013). Současná česká politika. Co s neefektivním režimem?
Brno: Barrister & Principal.
KUDRNA, Jan (2011). Přímá volba prezidenta. AUC Iuridica, no. 4, pp. 9-23.
KYSELA, Jan (2008). Přímá volba prezidenta republiky jako symptom krize
legitimity ústavního systému. In ŠIMÍČEK, Vojtěch; ed. Postavení prezidenta
v ústavním systému České republiky. Brno: Masarykova univerzita, pp. 42-59.
KYSELA, Jan, KÜHN, Zdeněk (2007). Presidential Elements in Government.
The Czech Republic. European Constitutional Law Review. Vol. 3, no. 1, pp.
91-131.
PRÁVO (2013). Zeman: Koalice se 101 podpisy má určitě naději na pokus o
sestavení vlády. Právo, 11. 7. 2013.
RYCHETSKÝ, Pavel et al. (2015). Ústava České republiky. Ústavní zákon o
bezpečnosti České republiky. Komentář. Praha: Wolters Kluwer.
SARTORI, Giovanni (1997). Comparative Constitutional Engineering. New
York: NYU Press, 2nd
ed.
SUPREME ADMINISTRATIVE COURT (2008). Judgment of the Supreme
Administrative Court of 21 May 2008, Ref. no. 4 Ans 9/2007.
SUPREME ADMINISTRATIVE COURT (2012). Resolution of the Supreme
Administrative Court Vol. 13/2012 of 13 December 2012.
WINTR, Jan (2008). Prezident republiky jako reprezentant státu, garant řádu
a moderátor politických sporů. In ŠIMÍČEK, Vojtěch; ed. Postavení prezidenta
v ústavním systému České republiky. Brno: Masarykova univerzita, pp. 24-34.
WINTR, Jan (2010). Česká parlamentní kultura. Praha: Auditorium.
Direct election of the president and its constitutional and political consequences
163
WINTR, Jan (2015). Principy českého ústavního práva. Plzeň: Aleš Čeněk 3rd
edition.