15. 2. 2023

Miloš Zeman´s Final Game

With the election of the new president of the Czech Republic, the era of the current president, Miloš Zeman, will soon come to an end. The new president, Mr. Petr Pavel, will take office after taking the oath of office on March 9, 2023. Until then, Mr. Zeman will remain in office and it is expected that he will not leave in silence.

In the past few months, he has already granted some very controversial pardons to friends, colleagues and former state officials without properly justifying these decisions and without consulting the Ministry of Justice, which is the usual procedure. These steps were also highly questionable because Mr. Zeman explicitly promised at the beginning of his first term ten years ago that he would not abuse this power and would only grant pardons in very exceptional cases for serious health or humanitarian reasons, which was not the case here at all. Given that the granting of pardons is an exclusive constitutional power of the president, there is no way to challenge his decisions.

Another important constitutional power of the president is the appointment of Justices of the Constitutional Court, which requires the consent of the Senate, the upper chamber of the Czech Parliament. Once the Justices are appointed, the president appoints the chairperson and vice-chairperson from among them, and this is the exclusive power of the president, which does not require the consent of any other authority. The current chairman of the Constitutional Court is Pavel Rychetský, who will retire in August this year. Therefore, the new chairperson should be appointed by the new president sometime during the summer. However, President Zeman came up with the idea of appointing the new chairperson of the Constitutional Court before his term ends, basically six months in advance. He argues that there is no such provision in the Constitution or any other law that would forbid him to do so, and that the Constitution says that all citizens may do what is not prohibited by law. This is indeed one of the key provisions of the Constitution. However, this is a pure misinterpretation of the Constitution because this provision affects individuals and other non-state entities. On the other hand, the president, in exercising his powers, is a state authority bound by the other key constitutional principle that state authorities are to serve all citizens and may be invoked only in cases, within the limits, and in the manner provided by law.

Despite the fact that the majority of constitutional experts and current Justices of the Constitutional Court, including the chairman Pavel Rychetský, strongly disagree with this idea, arguing that such a step would interfere with the powers of the future president and thus be in direct contradiction with the Constitution, Mr. Zeman keeps repeating that there is nothing that would prevent him from doing so. He also states that he has expert opinions that sanctify this plan of his, but he has refused to make these opinions public or even to name their authors. It is also not entirely clear what the solution would be if he decided to do so. President-elect Pavel says he would appeal to the Supreme Administrative Court to review the appointment. However, constitutional law experts argue that this is not possible and that the Supreme Administrative Court has no power of review in this context. The only option would be to simply ignore the appointment and appoint a new chairperson of the Constitutional Court when the time comes. In any case, the “pre-appointment” would cause considerable chaos and uncertainty and could endanger the stability and credibility of the Constitutional Court as such. And as we know from other Central European countries, attempts to paralyze the Constitutional Courts are always extremely dangerous and should not even be conceivable in a functioning democratic state based on the rule of law.

Latest update: According to the president-elect Pavel and the prime minister Fiala who both met with president Zeman, he should have promised them that he would not appoint the chairmen of the Constitutional Court anymore although he claimed that he was still convinced that he could have done it without breaking the Constitution.

By JUDr. Marie Zámečníková

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