Presidential elements in government: The Czech Republic

European Constitutional Law Review

Volumn 3, Issue 1, 2007, Pages 91-113

  Kysela, Jan ^a   Kühn, Zdeněk ^a  

^a CHARLES UNIVERSITY   (Czech Republic)

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EID: 34247490331     PISSN: 15740196     EISSN: 17445515     Source Type: Journal    
DOI: 10.1017/S1574019607000910     Document Type: Article

References (90)

1. The Preamble, Czech Const., reads, inter alia, 'We the citizens of the Czech Republic ... Faithful to all good traditions of ... Czechoslovak statehood ...' The English translation of the Constitution is available at the website of the Czech Constitutional Court, . The authors of this article have used this text.
2. E. Stein, 'Out of the Ashes of a Federation. Two New Constitutions', 45 American Journal of Comparative Law (1997) p. 45. The article provides a wonderful English introduction into the drafting the Czech Constitution by a renowned American scholar of Czech origin who spent much of 1992 in what was then Czechoslovakia.
3. See for more details E. Stein, Czechol/Slovakia. Ethnic Conflict. Constitutional Fissure. Negotiated Breakup (Ann Arbor, UM Press 1997) (hereinafter 'Stein, Czecho/Slovakia').
4. On Masaryk see in English R.B. Pynsent (ed.), T.G. Masaryk (1850-1937) (Basingstoke, Hampshire, Macmillan 1989).
5. P.S. Green, 'Farewell for "Good Czech Who Sacrificed Himself"', NY Times, 3 Feb. 2003, Section A, p. 8.
6. Best described in Havel's speech in the U.S. Congress, 21 Feb. 1990: 'The last time they arrested me, on October 27 of last year, I didn't know whether it was for two days or two years. Exactly one month later, when rock musician Michael Kocab told me that I would probably be proposed as a Presidential candidate, I thought it was one of his usual jokes. On the 10th of December 1989, when my actor friend Jiri Bartoska, in the name of the Civic Forum, nominated me as a candidate for the office of the President of the republic, I thought it was out of the question that the Parliament we had inherited from the previous regime would elect me. Twelve days later, when I was unanimously elected President of my country, I had no idea that in two months I would be speaking in front of this famous and powerful assembly, and that I would be heard by millions of people who have never heard of me and that hundreds of politicians and political scientists would study every word I say. When they arrested me on October 27, I was living in a country ruled by the most conservative Communist government in Europe, and our society slumbered beneath the pall of a totalitarian system. Today, less than four months later, I am speaking to you as the representative of a country which has complete freedom of speech, which is preparing for free elections, and which seeks to establish a prosperous market economy and its own foreign policy. It is all very extraordinary indeed.' English translation as available at (all papers at visited 19 May 2006).
7. In this context, P. Kopecký mentions the unsuccessful attempt to institutionalise Havel's charisma. See P. Kopecký, Parliaments in the Czech and Slovak Republics. Party Competition and Parliamentary Institutionalization (Ashgate, Aldershot 2001) p. 213.
8. In English see Stein, Czechol/Slovakia, supra n. 2, p. 282-297.
9. Stein, supra n. 2, p. 60-61
10. Stein, Czecho/Slovakia, supra n. 2, p. 288.
11. The proclamation of V. Havel on his Presidential nomination of 16 Nov. 1992, available in Czech at .
12. See Art. 5 5 and Art. 57 (2) Czech Const.
13. Stein, supra n. 2, p. 60-61
14. and Stein, Czechol/Slovakia, supra n. 2, p. 288. V. Havel remained consistent in this approach and repeated his preference for direct election of the President many times.
15. See, e.g., the article from the end of his Presidency, V. Havel, 'Jak volit mého nästupce? Přímo!' [How to elect my successor? Directly!], MF DNES, 30 Jan. 2002, available at .
16. Art. 54(2) Czech Const.
17. In this way, the President differs from the government, which depends for its existence on the confidence of the Lower House of the Parliament and has only limited relations to the Senate. Cf. Stein, Czecho/ Slovakia, supra n. 2, p. 288 (in note 69 quoting Havel who emphasized that the election by both chambers adds 'a certain different character to the political position of the President').
18. K. von Beyme thinks that a President elected by parliament represents the weakest form of the modern Head of State. As opposed to monarchies, he is not even the 'dignified part' of government. See K. von Beyme, Die Parlamentarische Demokratie. Entstehung und Funktionsweise 1789-1999 3rd edn. (Wiesbaden 1999) p. 317.
19. M. Ameller, Parliaments. A Comparative Study on the Structure and Functioning of Representative Institutions in Fifty-Five Countries, 2nd edn. (London, 1966) p. 267.
20. See, e.g., D.P. Conradt, The German Polity 6th edn. (White Plains, Longman 1996) p. 182-183.
21. See Art. 58 Czech Const.
22. D. Hendrych, Správní věda. Teorie veřejné správy [Administrative Science. Theory of Public Administration], (Praha, ASPI 2003) p. 14 et seq. The original author of this concept was O. Mayer, an important German scholar of the 19th century.
23. Cf. on the concept of pouvoir neuter, e.g., J.J. Sheehan, German History, 1770-1866 (Clarendon, Oxford University Press 1989) p. 430-433 (analyzing Hegel's Philosophy of Rights)
24. A. Sajó, Limiting Government. An Introduction to Constitutionalism (Budapest, CEU Press 1999) p. 177.
25. See Art. 62 and Art. 63 Czech Constitution. Professor Filip links this with the Presidential roles of arbitrator and moderator, J. Filip, Vybrané kapitoly ke studiu üstavního práva [Selected Chapters on Constitutional Law] (Brno, Masarykova univerzita 2001) p. 312. Professor Pavlíček explains that this concept is a result of combining parts of the 1920 Constitution (which required the counter-signing of 'government and executive' acts of the non-responsible President) with parts of the Socialist Constitution of 1960 (the communist Presidents were responsible to the National Assembly and therefore were allowed to exercise their powers without a countersignature)
26. V. Pavliček, 'Teoretická koncepce Üstavy ČR (Několik úvah k 10. výročí jejího přijetí)' [Theoretical Concept of the Constitution of the Czech republic - Several Considerations on the Occasion of the 10th Anniversary of Its Adoption], in J. Kysela (ed.), Deset let Üstavy Çeské republiky: východiska, stav, perspektivy [Ten Years of the Czech Constitution: Fundaments, Present, Perspectives] (Praha, Eurolex Bohemia 2003) p. 86-87.
27. Art. 62 Czech Const. (the letters correspond to the paragraphs of Art. 62).
28. This has happened by the President's decision published in Official Gazette as 144/1993. Now a new decision relating to EU treaties is being prepared.
29. Art. 63(1) Czech Const.
30. See Art. 73 the act 111/1998 Sb. i Official Gazette].
31. Cf. in English the information provided by the Czech Radio (visited 30 May 2006).
32. See the text accompanying nn. 48-52 infra.
33. Art. 35 (1) Czech Const.: The President shall dissolve the Lower House if (a) the Lower House does not adopt a resolution of confidence in a newly appointed government, despite the fact that all the possibilities to appoint the Premier are exhausted; (b) the Lower House fails, within three months, to reach decision on a governmental bill with the consideration of which the government has joined the issue of confidence; (c) a session of the Lower House has been adjourned for a longer period than is permissible; (d) for a period of more than three months, the Lower House has not formed a quorum, even though its session has not been adjourned and it has, during this period, been repeatedly summoned to a meeting. In fact, facing these strict conditions, it is very difficult to call for the early elections in the Czech Republic. There have been some proposals to extend the conditions to dissolve the Chamber of Deputies but (by the end of 2006) none has been successful.
34. Pavliček, supra n. 20, p. 87. As a result of the absence of any responsibility, Pavliček considers all these powers to be autocratic. In his opinion, the President of the former Czechoslovak Federation was more powerful than the President of the First Czechoslovak Republic because in a parliamentary republic the role of the Head of State is assessed not on the basis of the scope of his powers, but on the constitutional and political responsibility.
35. Art. 62(a) Czech Const.
36. Art. 68(4) Czech Const. In the history of the Czech Republic this has never happened.
37. Art. 62(h) Czech Const.
38. See Stein, supra n. 2, p. 61 (in note 79 quoting Havel's article from 18 November 1992, where the former Czechoslovak and soon-to-be Czech President claimed that without such a right the President 'would be cut off from the legislative process'. (in Czech original see Lidove Noviny, 18 Nov. 1992, p. 3).
39. The same text can be found in Stein, Czecho/Slovakia, supra n. 2, p. 289, note 74.
40. See also the text accompanying nn. 65-67 infra.
41. Art. 62(k) Czech Const.
42. Cf. on Poland, inter alia, L.L. Garlicki, 'The Presidency in the New Polish Constitution', 6 East European Constitutional Review (1997) available also at , visited 20 May 2006
43. M. Wyrzykowski & A. Cieleń, 'Poland: Semi-presidentialism or 'Rationalised Parliamentarianism'?', 2 EuConst (2006) p. 253.
44. R.L. Maddex, Constitutions of the World (London, Routledge 1995) p. 60.
45. A. Heywood, Political Ideologies: An Introduction 3rd edn. (Palgrave Macmillan 2004) p. 328.
46. For instance, in March 2006 the work of President Klaus was approved by 70% citizens, the government by less than 50% and the legislature by less than 40%. See , visited 1 May 2006.
47. His relationship to the political parties and his support to the civic society brought President Havel closer to Federal President R. von Weizsäcker.
48. Stein, supra n. 2, p. 63
49. Stein, Czecho/Slovakia, supra n. 2, p. 290.
50. For some of his opinions in English, see his personal website .
51. The Social Democratic Party, the strongest governmental party, demonstrated the greatest incongruence. One party faction wanted their former chairman M. Zeman to 'rule the Castle', while another tried to prevent his election. This vote division made it impossible for the ruling coalition to unite behind any of its candidates, thereby increasing the chances of Klaus, the candidate of the opposition.
52. See the speeches of 15 Jan. 2003, 24 Jan. 2003, and 28 Feb. 2003, and his inaugural address of 7 March 2003, all available in Czech (the last one also in English) at , visited 25 May 2006.
53. There were some exceptions: His involvement in the governmental crisis at the end of 1997 and the beginning of 1998 and the public support to the invasion to Iraq at the beginning of 2003. In the first case, the two strongest political parties responded by the conclusion of the so-called party-sharing agreement and filing a motion to amend the Constitution with the aim to limit the range of independent activities of the Head of State. The motion to amend the Constitution was approved by the Chamber of Deputies, but rejected by the Senate. Nevertheless, this was a warning for the (and any) President. It showed that certain political parties were willing to to solve political and institutional disputes with the President by amendments to the Constitution.
54. This difference has been articulated by Klaus himself, who criticized Havel for acting behind the political scene. See, e.g., V. Klaus, 'Václav Havel mýtický i skutečný' [Václav Havel in myths and reality], MF Dnes, 31 Jan. 2003, available at , visited 20 May 2006.
55. The address is available at (visited 30 May 2006). Critical on this concept L. Zaorálek (Social Democrats), a chairman of the Lower House of the Czech Parliament, who claimed that this term does not fit the Czech system of government which is based on parliamentary democracy.
56. See the discussion program 'Sedmička' [Seven], TV NOVA, 24 April 2005, searchable through , visited 14 April 2006.
57. On the concept of the cohabitation generally J.V. Poulard, 'The French Double Executive and the Experience of Cohabitation', 105 Political Science Quarterly (1990) p. 243.
58. See the interview with Rychetský for daily Právo, 'Klaus je v řadě svých postojů bližší soc. demokracii než ODS' [Klaus is in many of his positions closer to the Social Democratic Party than to CDP], Právo, 8 March 2003. Rychetský described the situation after Klaus' election in this way: 'We will simply be in the situation of the so-called cohabitation, i. e. co-existence of the leftist government and the rightist President. It was in the opposite way in France during Mitterrand and did not harm it at all.' [emphasis added].
59. Basic information on the meeting of 7 May 2003 is available at , visited 23 May 2006.
60. This has never been announced by the President publicly but has been publicized by other participants of that meeting. See T. Menschlik, P. Kolář, 'Klaus plní slib, izolace KSČM končí' [Klaus holds his word, the isolation of the Communist Party is over], Lidové noviny, 9 May 2003.
61. Cf., e.g., K. Klíma et al., Komentář k Ústavě a Listině [Commentary on the Constitution and the Bill of Rights] (Plzeň, Aleš Čenňek 2005) p. 318 et seq.
62. See the press statement of the President, as published on 26 May 2005, available at , visited 19 May 2006.
63. Cf. D.A. Spritzer, 'Klaus: Say no to EU constitution', Prague Post 14 April 2005, available at .
64. For an interesting analysis in English see M.J. Stransky, 'Whom does Vaclav Klaus serve? When does a president's personal opinion become public policy?', Prague Post, 12 May 2005, searchable through (visited 20 Feb. 2006).
65. Cf. the Senate's resolution No. 390 of 8th of April 2004 and the press statement of the President's Press Secretary as described in D. Macháček, 'Senát vzkázal Klausovi, at' zrychlí hledání soudců' [The Senate urged Klaus to speed up the nomination of justices], Hospodářské noviny, 9 April 2004, p. 4.
66. The Senator, a Protestant preacher and a former dissident Z. Bárta (Christian Democrats). See, e.g., 'Senátor Bárta: Klaus je velezrádce' [Senator Bárta: Klaus has committed high treason], Právo, 9 April 2004, p. 1. Bárta was not re-elected into the Senate in autumn 2006 elections.
67. See in detail Z. Kühn & J. Kysela, 'Nomination of Constitutional Justices in Post-Communist Countries: Trial, Error, Conflict in the Czech Republic', 2 EuConst (2006) p. 183.
68. The Act No. 192/2003 Sb. i Official Gazette] and Art. X of this Act which states that the requirement of 30 years does not apply to those trainees who were employed by ordinary courts at the moment when the act came in force.
69. Art. 63 Czech Const. states that the President of the Republic appoints judges (1)(e) and makes it a shared power (3) for which exercise the government is responsible.
70. The letter of the President of 16 March 2005 is available at . In it the President also refuses to accept the idea that the exercise of the office of judge is an occupation. In his opinion, it is a constitutional office which cannot be and may not be demanded. The law only stipulates minimum prerequisites for the appointment of judges, however, does not guarantee the appointment as such.
71. Referring to the Havel's Presidency.
72. The judgments of the Supreme Administrative Court of 27 April 2006, sign. 4 Aps 3/2005-35 and 4 Aps 4/2005-42, not yet published, accessible (in Czech) at , visited 20 July 2006.
73. The statement of the Press Secretary of President Klaus, 27 April 2006, is available (in Czech) at .
74. J. Krejčí, Problém právního postavent hlavy státu v demokracii [Problems Connected with the Legal Status of the Head of State in Democracy] (Prague, 1935) p. 56 and p. 68.
75. V. Klokočka, 'Ústava a Klausův sklon vládnout' [The Constitution and Klaus' tendency to rule], Právo, 27 April 2006, p. 8.
76. J. Bárta, 'Profesor Klokočka prosazuje soudcokracii' [Professor Klokočka pushes the government of judges], Právo, 4 May 2006, p. 8, available also at .
77. It is comparable to 1998 when President Havel expressed his reservations to the candidate for the post of foreign minister. Premier Zeman, however, insisted on his choice. The President could not risk blocking the appointment of the cabinet owing to such personal controversy and had to make a concession.
78. Art. 62(h) and Art. 50 Czech Const. For the genesis of this institution see the text accompanying n. 32 supra.
79. V. Klaus, the first round of Presidential elections, 15 Jan. 2003, available in Czech at , visited 22 May 2006.
80. Art. 50(2) Czech Const.
81. The list of vetoes by President Havel is provided in B. Chrastilová, P. Mikeš, Prezident republiky Václav Havel ajeho vliv na československý a český právní řád (Praha, ASPI 2003).
82. The vetoes of President Klaus are listed at .
83. See Art. 50 and Art. 51 Czech Const.
84. G. Sartori, Comparative Constitutional Engineering: An Inquiry into Structures, Incentives and Outcomes (Basingstoke, Macmillan 1994).
85. See J. Kysela, 'Nad jedním z "bezpečnostních aspektů" ústavního pořádku ČR: K výkladu a aplikaci čl. 43 Ústavy' [On one of "security aspects" of the Czech constitutional order: Interpretation of article 43 of the Constitution], Časopis pro právní vědu a praxi (2003), p. 89-107.
86. See, e.g., J. Nousiainen, 'From Semi-presidentialism to Parliamentary Government: Political and Constitutional Developments in Finland', 24 Scandinavian Political Studies (2001) p. 95.
87. Cited from von Beyme, supra n. 14, p. 54-55.
88. K. Klíma, 'Výkonná moc v parlamentním systému ČR (aneb nakolik je forma vlády v ČR ještě parlamentní)?' [Executive Power in the Czech Parliamentary System (Does the CR Still Have a Parliamentary Form of Government?)], in V Hloušek and V. Šimíček (eds.), Výkonná moc v ústavním systému České republiky [Executive Power in the Constitutional System of the Czech Republic] (Brno, International Institute of Political Science 2005) p. 44.
89. K. Vodička, L. Cabada, Politický systém České republiky. Historie a současnost [Political System of the Czech Republic. History and Presence] (Prague, Portál 2003) p. 154.
90. R.L. Maddex places the Czech Republic, together with Portugal, in the category of 'presidential-style parliamentary systems'. See Maddex, supra n. 36, p. 59.