Would electing a Czech president directly be a fatal mistake?

Constitutional law specialist Jan Kysela worries directly electing a president would create a new power base and further weaken the gov’t

Vedoucí katedry politologie a sociologie Právnické fakulty UK Jan Kysela pochybuje o účelnosti přímé volby prezidenta podle novely zákona, kterou má nyní v rukou Senát. | na serveru Lidovky.cz | aktuální zprávy Vedoucí katedry politologie a sociologie Právnické fakulty UK Jan Kysela pochybuje o účelnosti přímé volby prezidenta podle novely zákona, kterou má nyní v rukou Senát. | foto: © ČESKÁ POZICE, Jan KunderaČeská pozice
Vedoucí katedry politologie a sociologie Právnické fakulty UK Jan Kysela pochybuje o účelnosti přímé volby prezidenta podle novely zákona, kterou má nyní v rukou Senát.

The lower house of the Czech Parliament (Chamber of Deputies) voted on Dec. 14 in favor of a constitutional bill to introduce direct presidential elections for the first time in the history of the Czech Republic as an independent state. Is President Václav Klaus right when he claims that the move is a “fatal error”? Jan Kysela, an expert in constitutional law, believes that a change to the way that the president is elected will not restore voters’ belief in politics. On the contrary, it might create a new power base at the Castle that could weaken still further the position of the Czech government.

“My image of the president of the republic is of someone with an oilcan who pours oil into the political mechanism so that it operates more smoothly. I am worried that direct elections will throw up someone who does not carry an oilcan but a handful of sand,” Jan Kysela says in an interview for Czech Position.

Q: It is well know that you are no fan of direct elections of the president. Why not?

Basically I see no structural argument in the debate, i.e. an argument stating that we want direct elections because we aren’t satisfied with the form of government in the Czech Republic and we want to modify it. But nobody has such an argument.

Q: What are the risks associated with direct elections of the president within the context of the Czech political system?

The risks are associated with the public’s expectations regarding the office of president. This has a long tradition stretching back to President [Tomáš Garrigue] Masaryk and maintained by both President Václav Havel and President Václav Klaus. I would characterize these expectations by quoting the song by Jaromír Nohavica: ‘Mr President, you understand everything, you will protect us, you understand us.’ Of course, at the moment when the public’s expectations are combined with the significant competences of the president and then you add the legitimacy created by direct elections, there is the possibility that a new power base will be created. And this cannot have a positive impact.

A directly elected president will have no possibility of implementing a positive programme. All that will remain is the possibility of “not doing something”.

A directly elected president will have no possibility of implementing a positive program. For instance, he will not have any lawmaking initiative. And so all that will remain is the possibility of “not doing something”, i.e. not appointing an ambassador, not ratifying a treaty, or postponing the appointment of ministers. And then such a president could demand something in return for breaking this impasse. But basically the president’s actions will be aimed against the government. An already weak government will be weakened still further by conflict. I am not saying that this has necessarily to take place. But I think that it could take place and that it is not at all improbable. There has to be some positive compensation, though I can’t see any sign of it.

Q: Other countries have directly elected presidents. Aren’t your concerns slightly exaggerated?   

In Austria presidents are elected directly. However, no Austrian president felt that he had to be ‘master of the house.’ On the contrary, quite a few Czech presidents did feel this and might well feel it in the future. The attempt to rule could be intensified at the moment the president has the impression that the expectations of five billion voters are concentrated in his person (while the 281 MPs and Senators will still form an amorphous group which nobody knows). The result of direct elections will be derived from the personality of the president. A personality such as Petr Pithart or Jan Sokol is not likely to want to govern. But I think it is extremely unlikely that someone like that would be elected in direct elections.

Q: You believe there is a risk that authority would be abused by virtue of the president refusing to act, i.e. by not appointing chancellors, ambassadors, professors, not signing treaties. But this risk already exists at present.

Certainly. But at present the president is chosen by parliamentary representation, and one assumes that the selection will be the result of a certain degree of forethought, that a certain type of personality will be chosen. Direct elections are much more open from the perspective of possibilities, and therefore more risky.

My image of the president of the republic is that of a person with an oilcan who pours oil into the political mechanism so that it operates more smoothly. I am worried that direct elections will throw up someone who has no oilcan but a handful of sand, someone who thinks that they are expected to impede the political machinery. 

The tendency to look for consensus in politics is waning. Everything is black or white, truth or lies, life or death.

We are living in a more and more polarised world. The desire to seek consensus in politics is waning. Everything is black or white, truth or lie, life or death. Under such circumstances the president could have the impression that everything is at stake. Think of Václav Klaus’ approach to the Lisbon Treaty. If the president is convinced that the Lisbon Treaty means the end for the Czech Republic as an independent political entity, the legitimacy bestowed by direct elections offers him greater space for manoeuvre than a president would have with the same convictions but elected by parliament.

Q: Do you think that direct elections would be the first step on the road to a semi-presidential system?

In my opinion we are already on the way, because the office of the president is occupied by people who want to interfere in politics. But it depends on who is president and whether they are the leader of a political party, a member of an opposition party or an independent. It also depends on who is prime minister. There were substantial differences between Mirek Topolánek [former ODS prime minister] and Stanislav Gross [former ČSSD prime minister]. At the end of his term of office, Gross was so weak that he could have carried the president’s briefcase. This is something that Topolánek could never have done. And these are all variables which make it impossible to say how things will turn out.

Q: In an interview for Czech Television you said that along with your colleague Michal Kubát you had looked for arguments in favour of direct elections. What arguments did you find and what were their weaknesses?

The basic argument used appeals to the wishes of the electorate. However, I believe that respondents should also be asked why they want direct elections of president. It is very possible that the reason is a desire for an impartial president. They want a president who is a leader and is not and cannot be corrupted by political parties. But this is not something which MPs and senators want, and because of this voters could be very disenchanted by direct elections.

The problem of campaign financing is linked to impartiality. It is a question whether candidates would have in the order of tens of millions for a campaign or whether they would find someone to support them. Otherwise it will again be political parties who will select and support candidates, which means that although voters would elect a candidate, they would not choose him.

Q: And other reasons?

It would be rational to boost the arbitrative role of the president so that he could dissolve the Chamber of Deputies

Another reason given is the greater legitimacy bestowed by direct elections. But here it is appropriate to ask what you need this for. It would rational to boost the arbitrative role of the president so that he could dissolve the Chamber of Deputies. Suddenly it would be the president who could hand the floor to the electorate in a conflict between the Chamber of Deputies and the government. But nothing of the kind is being considered.

The last argument involves an international comparison. But this reason is completely groundless. If you lump together countries like Slovakia, Austria, France and Russia, you are comparing the incomparable. The Russian president snaps his fingers and decides whether it’s going to be sunny or not, while the Austrian president is in a completely different situation. The role of president must be understood within the context of each country separately.

Q: The draft bill anticipates an expansion of the liability of the president. He will now be taken before the Constitutional Court not only for treason, but even for a breach of Constitution or constitutional order. How do you rate this change?

The expansion of liability is illusory. Up till now only the Senate has been able to take constitutional action, or rather a simple majority of senators. The draft speaks of a three-fifths majority of senators and a three-fifths majority of MPs in addition. If we bear in mind that it is extremely unlikely that a candidate would be elected who didn’t have the strong support of one of the main parties, the president will be unimpeachable. There will always exist a blocking minority which will say that things are not yet so awful. I believe it is very dangerous that it is to be made even more difficult to unseat the president from office. We don’t know who will be elected president nor what their motives will be or who will finance their campaign and why.

Q: But isn’t the fact that it is not so simple to recall the president a safeguard against his being too dependent on political parties?

If it were the case that parliament recalls presidents, then you would have a point. But parliament only takes action before the Constitutional Court. It seems to me that there is already so little rigour that it will be almost impossible to take action.

Q: So what would you propose?

It is very possible that the people will be mistaken in their choice, and they should therefore have the option of recalling the president

In my opinion it would be rational to supplement the legal liability of the president with political liability. This would be in the hands of the electorate. It is completely possible that the people will be mistaken in their choice, and they should therefore have the option of recalling the president. While the Constitutional Court would decide on a breach of the Constitution on the basis of action taken by the Senate, the Chamber of Deputies would have the possibility of initiating a referendum on recalling the president of the republic.

The reason for recalling the president could be inability to perform his function, for instance conduct which is damaging to the Czech Republic. A necessary safeguard would be dissolution of the Chamber of Deputies if the people did not recall the president. This would prevent a situation in which the Chamber of Deputies called a referendum to recall the president on a weekly basis.

Q: There is one argument in favor of direct elections that I have not heard anyone counteract, and that is that direct elections would boost the faith of the electorate in politics.

There is a great risk if people do not trust politicians in the Czech Republic. But such trust is not lacking because the president is elected indirectly. I don’t think that people will have faith in political parties simply because they allow them to elect the president directly. If the political parties are so awful, they will remain awful even after the introduction of direct elections. And if they are so awful, why do we allow them to decide new laws or the creation of government? We would be better occupied in thinking of ways of ensuring that they are not so awful.

Q: Do you have any formula for improving the quality of political parties?  

I have come up with only one idea, namely increasing the number of members of a party. If parties were larger negative effects would be diluted. If you can control the local branch of a large party simply by virtue of the fact that you can muster up the seventy employees of your company, this is a problem. Because when you control a district you have a strong voice in the region. If you have a voice in the region, you are participating on the creation of the list of candidates for elections to the Chamber of Deputies. If a politician had to offer a thousand people, things would not be easy. It would be difficult to bribe everyone. I am not saying that the number of party members would resolve everything, but the problems which we encounter at present would be reduced.

Q: And these problems are what?

The desire for direct elections of the president in the Czech Republic may be related to the feeling that there is a “cork” here which is impeding the revitalisation of political parties

The closed nature of political parties, the creation of clientelism inside parties and the creaming off of money via political parties. These are problems which Brazil and South Korea had to resolve in the eighties. At that time they were authoritarian regimes in which the political class was closed off. In these countries direct elections of the president were motivated by the fact that the people wanted to get rid of the ‘cork’ sealing the political parties. But under these circumstances the president has to be strong, otherwise direct elections in themselves will not suffice. The desire for direct elections of the president in the Czech Republic might be related to the feeling that there is a ‘cork’ here which is impeding the revitalization of political parties. But this cork will not be removed simply by introducing direct elections.

Q: Do you believe that it is possible to change the existing parties, or do you think the future lies in creating new parties?

Personally I don’t much believe in looking for the “new and the good”. People say that the old parties are bad, and then what do you get but the Green Party, Věci Veřejné [Public Affairs], and TOP 09 ... I think we would be more realistic to concentrate on what we already have. But I am not sure how to achieve these changes. People are not rushing to join parties. And even if they were, the local organisations would refuse them. Why would they accept them if things suffice the way they are. Even so I think that if we don’t resolve this problem we won’t get anywhere. We can have any kind of constitutional system we want, with a billion safeguards. But if you appoint political parties you don’t believe in to all the institutions, this system of checks and balances logically cannot work.

Jan Kysela (37)
Jan Kysela is a Czech lawyer and expert in constitutional law. He has worked at the department of legal theory and law studies and at present is head of the Institute of Political Science and Sociology of the Law Faculty of Charles University in Prague. He is secretary of the permanent commission of the Senate of the Czech Parliament for the Constitution of the Czech Republic and Parliamentary Procedures.