How powerful should the next Czech President be?

Constitutional lawyer Marek Antoš suggests how to bring transparency to party funding cash flows and reorganize the election system

 | na serveru Lidovky.cz | aktuální zprávy foto: © ČESKÁ POZICE, Richard Cortés, iPad2Česká pozice

The answers given by Marek Antoš, who lectures on constitutional law and politics at the Law Faculty of Charles University in Prague, went far beyond the original subject of the interview. Czech Position asked about how to regulate funding of presidential campaigns and about the scope of the President’s competency. We arrived, however, apparently inevitably, at considerations regarding political funding in general, organization of the political and electoral system and ideas for its reform. The issue of direct presidential election opened up these themes.

Marek Antoš studied political science at Charles University Faculty of Social Sciences and its Law Faculty, where he lectures on Constitutional law and politics. He has become known to a wider public than legal circles through the internet and online media, in which he has been professionally engaged since the 1990s.In 1998 he founded his own company, Internet Info, and in April that year launched his “Magnifying Glass” server Lupa.cz.

Q: Critics of direct election fear, among other things,that candidates would be puppets in the hands of financial groups. A colleague of yours, the constitutional lawyer Jan Kysela, recently even mentioned that he fears the immunity of prosecution of financial groups due to the President’s power to issue pardons. Do you agree?

A: I would regard that risk as of less importance. I don’t think that the President would hand out pardons to cooperating business groups. It can’t be ruled out, but we would be suspecting Presidential candidates of behavior too calculated and dishonest. And also we would be underestimating the voters too much. These are transparent powers of office. Even though Respekt weekly hinted at corruption in connection with the issuing of presidential pardons, in general it is an area that is very closely scrutinized. If a directly elected President were to grant a pardon to the CEO of some financial group that was being investigated by the Police or that had contributed to his campaign, it would certainly arouse a very negative reaction from the electorate. What’s more, such suspicions would certainly activate politicians to vote that the President must in future issue pardons with a counter-signature.

On funding of campaigns, as well as parties

Q: What kind of controls should there be of funding Presidential campaigns?

A: In the United States, for example, they have been dealing with this issue for fifty years. Even so, they haven’t yet found an ultimate solution. The issue of funding here isn’t specific to the Presidential elections, but is addressed generally with regard to political parties too, where it is equally important. The fundamental question iswhether the state should restrict campaign costs or, as the case may be, campaign resources. It would be possible to stipulate that an individual may contribute a maximum amount of say CZK 50,000. When a candidate wants to acquire enough money,he would have to address a large number of people. This is a method that has been developed in America, for instance.

Of course, there are also good reasons for not setting such a limit.  On the one hand, it’s terribly hard to keep an eye on; it’s always possible to donate cash via go-betweens. What’s more, if you limit the total resources for a campaign, it’s possible to get around it through PR agencies, for example, which officially charge you a lower price, so that you remain below the limit.

Alongside this, in the US it is typical that although the candidate adheres to the limit, some civic group is also lobbying for his election and these are not affected by the limits. Apart from this, there are also other ways. It's enough to remember the case when the KSČM (Communist Party) had a donor who did not want to be named, and so the party proposed that he send the money as an advertisement in the newspaper Haló.  The advertisement was printed and the party got its income. It’s possible to get around every ban. So you’re back where you started.

Q: How should party funding be reformed?

A: I believe that greater transparency would definitely help. The political parties have to submit a report on their finances every year, but that is highly schematic. There are no details, especially on the side of costs. You see that the costs exist, but you don’t see what the money was spent on. The report is stuck in a closet in the library of Parliament, where you can go and take a look at it twice a year. It’s an absurd system. It would definitely help if the reports were on the internet, so that anyone can take a look at them. The report should also be in more detail. If it concerns a campaign, then it should be seen who received a specific sum. This would help journalists in particular to draw attention to dishonesty or lack of clarity surrounding funding. Although transparency in itself doesn’t enable the state to prosecute dishonesty, it does inform the public, which can then say that something stinks here.

Although transparency in itself doesn’t enable the state to prosecute dishonesty, it does inform the public, which can then say that something stinks here. And next time around they won’t vote for the party or Presidential candidate. Some experts call for the creation of a special authority that would control funding of political parties or Presidential campaigns. Personally, though, I regard such a system as ineffective and prone to abuse.

Q: And control of income sources?

A: A law now exists thatrequires that political subjects prove who they receive gifts from. But there is a suspicion — and this relates to perhaps all of the current parliamentary parties — that the real donors have themselves represented by mediators. Unfortunately, I don’t believe it’s possible to compel the parties to disclose their true donors. There is no instrument in place for this. So the only real solution is the good work of journalists. If they draw attention to cases wheresome fellow gave CZK 10 million to a candidate or a political party as a gift, even though he hasn’t earned a single Crown in the past 10 years, there is a chance that the candidate in question will not be elected.

Q: There is also talk that gifts should only be given by individuals and not legal entities. What do you make of that?

A: Without the introduction of further regulations it means nothing. The legal entity can find itself a go-between and provide financial resources through an individual. What’s more, when we look at who is in actual fact donating to the parties here, they are primarily individuals. Actually, it doesn’t really matter that money is donated by a legal entity. What is fundamental is who owns the company and who is behind it. This is a general issue that we talk about with regard to public orders as well. But again, the only corresponding sanction is that someone draws attention to it. It’s the same as in 1997, when the ODS (Civic Democrats) had the scandal with Lajos Bács. It turned out that their alleged sponsor had been dead for 10 years. Even though the state did not impose a fine, the voters said to themselves in the next election that the party was no longer trustworthy for them. It’s the same as in 1997, when the ODS (Civic Democrats) had the scandal with Lajos Bács. It turned out that their alleged sponsor had been dead for 10 years

Q: On the other hand, the scandal didn’t hurt the ODS much in the long term.Why should it be different in the case of Presidential candidates?

A: Because there is a very strong tie between the voters and Presidential candidates. In classic elections the voter composes his decision from various parameters. You have some pros and cons and from these you generate a result. But in the case of a President, where you have a single office and a specific candidate, who in addition is supposed to be the representative of the state, his moral integrity is a very strong argument for you.

Power of office and legitimacy

Q: Let’s return to the President’s powers. The Senate tried to introduce into the Constitutional Amendment alongside direct elections, also inclusion of the Senate in jointly deciding on nominating the Bank Board of the Czech National Bank. The resolution was not passed, though. For many experts this is very problematic.

A: It’s often said that competency and method of election are two different things. But that is not true. A directly elected President willhave the tendency to use his competencieswithout reserve and rather will try to extend his space. I think that together with the change in election of the President, his competencies should also be modified — either expanded or trimmed: either strengthen his position with respect to the government and Parliament — by which we would introduce a certain form of semi-Presidential system — or, on the contrary, link all of the President’s competencies to co-signing by the government or co-deciding of another authority. Unfortunately, neither one nor the other has occurred. You’re right that the nomination of the Bank Board is probably the most high-profile competency, but it’s not the only issue.

Q: What are the others?

A: I am convinced that those of the President’s competencies with which he can slow down the other Constitutional bodies should be more clearly defined. For example, it is stated in the Constitution that the President appoints the Constitutional judges, but it is not in any way regulated when he has to do so by.

It’s enough to remember the years 2003-2005, when the President had a tug-of-war with the Senate over the appointment of Constitutional judges. The President proposed candidates andthe Senate did not approve them. Only then the President did nothing, which led to serious consequences — to the emptying of the Constitutional Court. After a while he began sending candidates one-by-one and played out with the Senate this kind of war: “Senate, if you won’t approve anyone for me, I won’t nominate anyone else. So, Senate, consider whether you want a paralyzed Constitutional Court.” Therefore, it would be better to tie the President to some deadline, which would state by when he must nominate candidates.

It’s a similar situation for international agreements. This is a problem that has appeared in the case of President Klaus. He refused to sign international treaties or wouldn’t reveal when he intended to sign. The interpretation thus far of Constitutional law has been that the President may not act of his own accord, on the very account of restricted legitimacy. If the government, with the approval of Parliament, concludes some international treaty and both houses express consent with ratification, the President does not have the legitimacy to halt the process. This is changing today because this argument fails. It would therefore be more appropriate to write explicitly into the Constitution that he is obliged to sign such a treaty.

On President-Government-Parliament relations

Q: Would you also somehow regulate the President’s relations with government?

A: Certainly. The President hasn’t always acted flexibly with regard to appointing the government. For example after the 2006 elections,which ended with a 100:100 hung vote [in the lower house], it took him quite a while before he appointed a Cabinet after the first attempt failed. If a directly elected President with strengthened legitimacy says to Parliament “You are not capable of coming to an agreement, I will appoint a provisional government for you. Even though you won’t give it your vote of confidence, I’ll let it govern for another half year.” Then there’s nothing you can do. Again, it would be good if it were stipulated that when the government resigns, the President must appoint a new one, say, within three months. The greater the legitimacy the President has, the more he will do. Therefore, it would be good to clarify the President’s competencies, to establish clearly that the PM carries the responsibility for forming the government and the President must respect his opinion.

Another problem is with the dismissal of ministers. If the Prime Minister proposes the dismissal of a minister and the President says it’s a halfway step and that he’ll wait until the Chairman finishes the step and brings him a definitive solution, or even the signatures of 101 deputies, then that obviously weakens the position of the PM. The greater the legitimacy the President has, the more he will do. Therefore, it would be good to clarify the President’s competencies, to establish clearly that the PM carries the responsibility for forming the government and the President must respect his opinion.

Q: On the other hand, in view of the fact that the Czech Republic has a history of weak or minority governments, would it not be better on the contrary to strengthen the President’s powers?

A: This would certainly be a possibility. I think that in this our system is peculiar. Our Parliament is extremely strong and the government extremely weak. Although in a parliamentary republic the government is answerable to Parliament,or rather the lower house (Chamber of Deputies), it has certain instruments against it, typically the possibility of dissolving it. By this means the government can threaten its own deputies, if the do not support a government proposal,with dissolution of Parliament and possible loss of mandate. This is an instrument that the British Prime Minister uses on his MPs.

Q: Would you regard as positive a shift in the center of power from government to the Castle [seat of the Czech Presidency]?

A: I am in favor, but we must also extend the President's powers by corresponding means. For example, that he could dissolve Parliament. He has that power today, but only under fairly improbable circumstances. If we were to compare it with the situation of the French President, the latter is much better equipped in this direction. Parliament knows that if it annoys the President too much, the President will dissolve it and try to get a better majority in Parliament. That would help considerably.

‘Elections once every 10 months’

Q: Do you think the next President will be a victorious candidate of the opposition or the government party, or will he be an independent candidate? And what will that mean for the Czech political system?

A: It’s very likely that the President will be the opposition candidate. The election term for the Chamber of Deputies is four years while the President is elected for five, so the elections will be staggered and not at the same time. The theory of second-stage elections contends that elections held in the middle of the election cycle, which the Presidential election will evidently fall under also, are elections that the voter uses to vent his discontent with the government composition. Therefore, the opposition wins in such elections. This is also evident from the current situation in the Senate or in the regions, where the ČSSD (Social Democrats) have the majority. I don’t give much chance to non-party candidates especially not in the longer-term perspective. Independents can already stand for Senate, and look how many of them there are there.

Of course, a situation where there are opposing camps at Strakova Akademie [seat of government] and the Castle [seat of the presidency] will bring nothing good. The have had a similar experience in France, where they elect the President for a seven-year term and the Parliament for five. This has resulted in periods of so-called “cohabitation,” where the President has had to live with a government propped up by a different political party. Even in France they discovered that it works badly for them and resolved it by synchronizing the Presidential and Parliamentary terms. People therefore have a tendency to elect candidates of the same orientation.

Q: Would you propose synchronizing the Presidential election with the Parliamentary elections?

A: Yes. The thing I most criticize direct presidential election for is that it increases the frequency of elections even more. We already have record-breakers today. I calculated that on average we have here one election per voter every 13 months. That’s an awful lot. Now, with direct presidential election, it will be an average of one every 10 months. I calculated that on average we have here one election per voter every 13 months. That’s an awful lot.

Abroad they are trying to concentrate elections into one term. In the United States, when you go to the pollsyou elect everyone from the local sheriff to Congressmen to the President. Then there is a better chance that people will turn out to the polls. Here, we already have very low participation in elections in comparison with the rest of Europe, and if the frequency of elections is to increase, it will get even worse.

What’s more, we will have permanent campaigns. This means that the government will never take unpopular steps. The government parties will have to worry constantly about the results of upcoming elections. Synchronization and concentration of elections into a single termwould contribute not only to cooperation between the Castle and the government, but also to higher turnout.