Semi-presidentialism, Parliamentarism and Presidents: Presidential Politics in Central Europe [1 ed.] 9781138054714

Table of contents :
Cover
Half title
Title page
Copyright page
Table of contents
List of tables
Acknowledgments
Introduction
1 Theory and concepts: between parliamentarism and semi-residentialism
1.1 Extant scholarship on semi-presidentialism
1.1.1 "The inventor": Maurice Duverger and his concept of semi-presidentialism
1.1.2 "Doubters" and "rejecters" of semi-presidentialism
1.1.3 Duvergerian approach: "advocates" of Duverger's concept of semi-presidentialism
1.1.4 "Post-Duvergerian" approach
1.2 How to understand parliamentarism and semi-presidentialism
1.2.1 Semi-presidentialism as a distinct democratic regime type
1.2.2 The definition
1.3 Presidential powers vs. popular vote in parliamentarism and semi-presidentialism
2 Origins and developments of the Central European regimes' institutional settings
2.1 Czechoslovakia, the Czech Republic and Slovakia
2.1.1 Czechoslovakia and its ambiguous tradition
2.1.2 Controversies of the wartime period and the Communist era
2.1.3 The Velvet Revolution and Velvet Divorce
2.1.4 Making of the 1992 constitutions
2.1.5 Constitutional system and development after 1993
2.1.6 Czech Republic and Slovakia: what tradition and why?
2.2 Poland
2.2.1 First "Rzeczpospolita"
2.2.2 Second Republic
2.2.3 Polish People's Republic
2.2.4 Roundtable Talks and the making of the Third Republic
2.2.5 Constitution of 1997 and discussions on its revision
2.2.6 Poland: what tradition and why?
3 Formal presidential powers
3.1 Central European presidents and separation of powers
3.2 Classifications of presidential powers
3.3 Presidential powers in Central Europe
3.3.1 Independent legislative powers
3.3.2 Contingent legislative powers
3.3.3 Shared legislative powers
3.3.4 Independent non-legislative powers
3.3.5 Contingent non-legislative powers
3.3.6 Shared non-legislative powers
3.4 Measuring presidential powers
4 Presidential powers in practice
4.1 Legislative powers
4.1.1 Czech Republic
4.1.2 Slovakia
4.1.3 Poland
4.2 Non-legislative powers
4.2.1 Czech Republic
4.2.2 Slovakia
4.2.3 Poland
4.3 Other appointments and conflict areas
5 Accountability
5.1 Czech Republic
5.2 Slovakia
5.3 Poland
6 Beyond constitutions – other factors affecting presidential power
6.1 Past legacies
6.1.1 Czech Republic
6.1.2 Slovakia
6.1.3 Poland
6.2 Popularity and expectations
6.2.1 Czech Republic
6.2.2 Slovakia
6.2.3 Poland
6.3 Relationship to parties
6.3.1 Czech Republic
6.3.2 Slovakia
6.3.3 Poland
6.4 Popular election of the president
6.4.1 Poland
6.4.2 Slovakia
6.4.3 Czech Republic
7 Classification of Central European regimes
7.1 How are Central European regimes classified?
7.1.1 Czech, Polish and Slovak view
7.1.2 "Western" views
7.2 How should Central European regimes be classified?
Conclusion
References
Index

Citation preview

Semi-­presidentialism, Parliamentarism and Presidents

The book analyzes the presidencies of three neighboring Central European countries – Poland, the Czech Republic and Slovakia – in the context of their interactions with cabinets (and prime ministers), parliaments and the constitutional courts, all which have proved crucial actors in the region’s political and constitutional battles. Using both institutional and behavioral perspectives along with an innovative definition of semi-­presidentialism, the book argues that presidential powers – rather than the mode of the election of the president – are crucial to the functioning of the regimes and their classification into distinctive regime types. Focusing on intra-­executive conflicts and the interaction of the president with other constitutional players, it argues that, regardless of the mode of the election of the president, regimes have traditionally been very similar not only in their institutional settings, but also in the way they function. Finally, it shows that Poland, the Czech Republic and Slovakia should be classified as parliamentary regimes. This text will be of key interest to scholars and students of Central and East Europe studies/politics, post-­Communist studies, presidential studies and more broadly to political elites and institutions, comparative politics and legislative studies. Miloš Brunclík is Assistant Professor at the Institute of Political Studies, Charles University, Prague, Czech Republic. Michal Kubát is Associate Professor at the Institute of International Studies, Charles University, Prague, Czech Republic.

Routledge Research on Social and Political Elites Series Editors: Keith Dowding and Patrick Dumont Australian National University, Australia

Who are the elites that run the world? This series of books analyses who the elites are, how they rise and fall, the networks in which they operate and the effects they have on our lives. The Selection of Ministers around the World Edited by Keith Dowding and Patrick Dumont Party Members and Activists Edited by Emilie van Haute and Anika Gauja Political Representation Roles, representatives and the represented Edited by Marc Bühlmann and Jan Fivaz Ministerial Survival during Political and Cabinet Change Foreign Affairs, Diplomacy and War Alejandro Quiroz Flores Government Formation and Minister Turnover in Presidential Cabinets Comparative Analysis in the Americas Edited by Marcelo Camerlo and Cecilia Martínez-Gallardo The Selection of Politicians in Times of Crisis Edited by Xavier Coller, Guillermo Cordero, and Antonio M. Jaime-­Castillo National Political Elites, European Integration and the Eurozone Crisis Edited by Nicolò Conti, Borbála Göncz and José Real-­Dato Semi-­presidentialism, Parliamentarism and Presidents Presidential Politics in Central Europe Miloš Brunclík and Michal Kubát

Semi-­presidentialism, Parliamentarism and Presidents

Presidential Politics in Central Europe Miloš Brunclík and Michal Kubát

First published 2019 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Miloš Brunclík and Michal Kubát The right of Miloš Brunclík and Michal Kubát to be identified as authors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilized in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-­in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-­in-Publication Data A catalog record has been requested for this book ISBN: 978-1-138-05471-4 (hbk) ISBN: 978-1-315-16645-2 (ebk) Typeset in Times New Roman by Wearset Ltd, Boldon, Tyne and Wear

Contents



List of tables Acknowledgments



Introduction

1

1

Theory and concepts: between parliamentarism and semi-­presidentialism

6

viii ix

1.1  Extant scholarship on semi-­presidentialism  6 1.1.1  “The inventor”: Maurice Duverger and his concept of semi-­presidentialism  7 1.1.2  “Doubters” and “rejecters” of semi-­presidentialism  8 1.1.3  Duvergerian approach: “advocates” of Duverger’s concept of semi-­presidentialism  10 1.1.4  “Post-­Duvergerian” approach  13 1.2  How to understand parliamentarism and semi-­presidentialism  13 1.2.1  Semi-­presidentialism as a distinct democratic regime type  14 1.2.2  The definition  15 1.3  Presidential powers vs. popular vote in parliamentarism and semi-­presidentialism  17 2

Origins and developments of the Central European regimes’ institutional settings 2.1  Czechoslovakia, the Czech Republic and Slovakia  24 2.1.1  Czechoslovakia and its ambiguous tradition  24 2.1.2  Controversies of the wartime period and the Communist era  26

23

vi   Contents 2.1.3  The Velvet Revolution and Velvet Divorce  28 2.1.4  Making of the 1992 constitutions  30 2.1.5  Constitutional system and development after 1993  34 2.1.6  Czech Republic and Slovakia: what tradition and why?  35 2.2  Poland  36 2.2.1  First “Rzeczpospolita”  37 2.2.2  Second Republic  38 2.2.3  Polish People’s Republic  39 2.2.4  Roundtable Talks and the making of the Third Republic  40 2.2.5  Constitution of 1997 and discussions on its revision  43 2.2.6  Poland: what tradition and why?  44 3

Formal presidential powers

52

3.1  Central European presidents and separation of powers  52 3.2  Classifications of presidential powers  55 3.3  Presidential powers in Central Europe  57 3.3.1  Independent legislative powers  57 3.3.2  Contingent legislative powers  59 3.3.3  Shared legislative powers  60 3.3.4  Independent non-­legislative powers  60 3.3.5  Contingent non-­legislative powers  62 3.3.6  Shared non-­legislative powers  66 3.4  Measuring presidential powers  66 4

Presidential powers in practice

71

4.1  Legislative powers  71 4.1.1  Czech Republic  72 4.1.2  Slovakia  73 4.1.3  Poland  75 4.2  Non-­legislative powers  80 4.2.1  Czech Republic  80 4.2.2  Slovakia  82 4.2.3  Poland  83 4.3  Other appointments and conflict areas  86 5

Accountability 5.1  Czech Republic  93 5.2  Slovakia  95 5.3  Poland  96

93

Contents   vii 6

Beyond constitutions – other factors affecting presidential power

99

6.1  Past legacies  99 6.1.1  Czech Republic  99 6.1.2  Slovakia  102 6.1.3  Poland  102 6.2  Popularity and expectations  104 6.2.1  Czech Republic  104 6.2.2  Slovakia  107 6.2.3  Poland  107 6.3  Relationship to parties  110 6.3.1  Czech Republic  110 6.3.2  Slovakia  113 6.3.3  Poland  116 6.4  Popular election of the president  120 6.4.1  Poland  120 6.4.2  Slovakia  122 6.4.3  Czech Republic  124 7

Classification of Central European regimes

131

7.1  How are Central European regimes classified?  131 7.1.1  Czech, Polish and Slovak view  131 7.1.2  “Western” views  133 7.2  How should Central European regimes be classified?  134

Conclusion

137



References Index

141 165

Tables

1.1 3.1 3.2 4.1 4.2 4.3 4.4 4.5 6.1

Dag Anckar’s typology of regime types Typology of presidential powers Presidential powers in Central Europe Presidential veto and bill submissions to the Constitutional Court in the Czech Republic Presidential veto and bill submissions to the Constitutional Court in Slovakia Referenda in Slovakia Polish presidents in the legislation process Referenda in Poland Evaluation of the performance of the Czech presidents

11 56 67 72 73 76 77 79 106

Acknowledgments

This book was elaborated within the research project no. 15-01907S “Does Direct Election Matter? Analyzing the Effect of Direct Election of President on the Working of the Political Regime in the Czech Republic,” sponsored by the Czech Science Foundation. We would like to thank the following colleagues whose comments helped us improve the text of our book: Vít Hloušek and Lubomír Kopeček, who read through the whole text of the book and provided us with invaluable comments. We would also like to thank Ol’ga Gyárfášová, Jan Kysela, Veronika Oravcová, Marián Sekerák and Peter Spáč, with whom we consulted on various particular issues covered in this book. Special thanks go to Jacob Maze, who proofread the text. While these scholars have saved us from numerous errors, we bear full responsibility for any mistakes found in this book.

Introduction

It has been more than a quarter of a century since the Central European countries covered in this book (i.e., Poland, the Czech Republic and Slovakia) took a turn towards democracy and (re-)established the institution of presidency as the formal head of state. Although three decades is by no means an exceptionally long period of time, at least from the perspective of more experienced, consolidated democracies, this stretch of time has opened up an opportunity to attempt to generalize some trends or patterns of presidential politics in the region. This is precisely what we aim to achieve in this book. However, we were not merely inspired by the time that has elapsed since this transition to democracy. Another source of motivation for putting this book together was a couple of ambiguities and puzzles regarding the presidents of Central Europe. First, from the perspective of a conceptual and theoretical debate surrounding this issue, it is notable that Central European countries are treated as parliamentary regimes by one group of scholars, whereas other authors have come to regard Poland, the Czech Republic and Slovakia as semi-­presidential regimes. This disparity is not a negligible detail in classifying democratic regime types but rather a recurring feature of comparative as well as individual case studies, which has had implications for the conceptualization of parliamentary regimes, including rationalized parliamentarism and semi-­presidentialism, in addition to impacting the significance and effects of the popular elections of presidents in democratic regimes. Hence, among other things, we address this lack of consensus in classifying Central European regimes in this book. Second, although the three countries in question have set up their constitutional frameworks independently, and subsequently modified their constitutional articles in regard to their presidents, since their successful transitions to democracy the regimes of the three countries have worked in a very similar fashion for most of the post-­1989 era once we leave aside the authoritarian tendencies of the Slovak political regime in the 1990s as well as the short-­lived experience of the Polish constitutional system with a powerful president in the early 1990s. Third, Central European presidents are rather weak in their official capacities, as we show in this book. The presidents are definitely not ruling presidents in the sense that they would wield notable executive powers, which are in fact held by the incumbent governments.1 On the other hand, it would be an exaggeration to

2   Introduction argue that they are mere figureheads whose role is comparable to that of constitutional monarchs. The presidents of Central Europe play meaningful roles, exerting significant influence over politics and functioning as considerable agenda-­setters in their countries. In exceptional cases, they have even attempted to become ruling presidents. Thus, we try to address the complexity of the presidential position and to identify major sources of their formal and informal power. Fourth, all the countries discussed here, in a paradoxical way, eventually introduced the popular election2 of the president, which has undoubtedly boosted their legitimacy and potentially increased their overall power. On the other hand, in none of the countries have the constitution makers and political elites responsible for amending the constitutions so far chosen to strengthen the position of the president. In fact, there has never been a politically significant push for a ruling president. Thus, we intend to explain this puzzle by inquiring into the debates that led to the introduction of the direct presidential election in order to identify the major reasons that allowed for this institutional provision. Finally, and more generally, there is a puzzle as to how we are to understand the president in Poland, the Czech Republic and Slovakia. What is their actual and proper position in their respective constitutional systems? This, and other related questions, not only reflects our academic passion but also has practical and political consequences. These Central European countries are no longer nascent democracies. Within a relatively short period of time since 1989 and in light of a number of constitutional conflicts, there remain questions concerning the appropriate role of the president in political systems, the actual scope of their powers and the role of constitutional practices and conventions, all of which are meant to shape constitutional politics. Despite the commonly shared idea that the president should not be chief executive, there is still a lack of consensus on the above questions. This book offers our own evidence-­based and argument-­based conclusions related to these questions with the aim of contributing to the ongoing, mostly latent debates on the appropriate position of the president in the constitutional systems of Central European countries. Our book therefore makes two major contributions. First, it carries on the traditional distinction between semi-­presidential and parliamentary regimes. Although the concept of semi-­presidentialism suffers from some ambiguities, with some scholars even rejecting the concept as such, we contend that the concept is undoubtedly useful. We present an innovative definition of semi-­ presidentialism based on formal constitutional provisions. Our definition, to which the notion of presidential powers is central, seeks to avoid the pitfalls, on the one hand, of minimalist definitions and, on the other hand, of imprecise and confusing definitions. Moreover, we believe that this innovative definition is needed in order to clearly distinguish semi-­presidential regimes from presidential and parliamentary regimes (including the concept of rationalized parliamentarism) due to the fact that the operating logic of semi-­presidential regimes is essentially different from that of parliamentary and/or presidential regimes. We show that none of the countries meet the criteria of our definition of semi-­ presidential regimes. Instead, they reflect the institutional features of parliamentary

Introduction   3 regimes: executive power is carried out by the government, which rests on the confidence or tolerance of the parliamentary majority, whereas the president plays a largely ceremonial, symbolic and balancing role, i.e., checking the powers of the government and other constitutional bodies. They lack the tools to deliver their own policies and enforce executive power in their own countries. Despite the introduction of direct election of presidents, these major features of Central European regimes have remained constant since the early 1990s, whereas the concept of semi-­presidential regime should be reserved for regimes where the president has considerable powers, which falls in line with the Duvergerian tradition of understanding semi-­presidentialism. The second contribution of this book, as indicated above, is in establishing the political position of Central European presidents, who are rather complex and cannot be limited purely to their constitutional powers and treated solely as ceremonial figures, mainly because they occasionally become central political figures in their respective countries. Thus, this book goes beyond a mere description of the president’s constitutional powers by offering a multidimensional picture of the presidencies that overcomes a pure and formalist approach that resulted only from a reading of the constitutional text. We discuss the major historical constitutional legacies and principles that shaped the modern political regimes after 1989. In addition, the book thoroughly investigates the institutional choices that the makers of the constitutions decided upon following the collapse of the Communist regimes, which thereby opened the way for new constitutional settings. In doing so, the book outlines the major developmental features of the three regimes since 1989. The book is further concerned with formal presidential powers, presenting this theme in the context of the official links the president has to other constitutional bodies. By doing so, it shows that a large number of these powers are severely constrained by other constitutional players and/or by specific circumstances under which the president may (or is obliged to) act. Connected to this, we present an innovative approach to understanding formal presidential powers. Our typology is based on (1) the degree of the president’s independence in using these powers and (2) the areas to which these powers are applied. The book subsequently provides a new way of measuring the presidential powers in question. We also explore these presidencies in the context of their interactions with cabinets (and prime ministers), parliaments and – something that has been quite exceptional so far – constitutional courts, which have proven to be relevant actors in the region’s political and constitutional battles. We study how they used presidential powers in practice, shaping (as well as breaking) constitutional practices and conventions. In our analysis of presidential powers in practice, we pay particular attention to key constitutional conflicts arising between the president and other constitutional bodies. We show that only a few of them can be attributed to the direct election of the president, while most of them can only be explained in a context that incorporates a multitude of factors. Moreover, the book goes beyond the description and analysis of formal presidential powers by further analyzing (informal) factors that shape the position of the president. With this strategy in mind, we study the historical legacies,

4   Introduction the path dependency, the popularity of presidents as well as the public’s expectations of the presidency, popular elections and the relationships these presidents have with political parties as crucial factors that overall shape the presidential powers in these countries. All in all, our aim is to provide readers with original findings about both the formal and informal positions that have been taken by the presidents of the Czech Republic, Slovakia and Poland since 1989 in addition to some key insights into the real political and constitutional practices of these three countries in the context of the concept of parliamentarism as well as our innovative concept of semi-­presidentialism. The book is structured as follows. The first chapter debates the concepts of parliamentary and semi-­presidential regimes. Whereas the former concept is largely uncontested, the latter has become exposed to widespread criticism. Thus, the chapter is mostly concerned with semi-­presidentialism and shows the striking differences in approaches to semi-­presidentialism. Claiming that the concept of presidential powers should be central to semi-­presidentialism, we offer our “Duvergerian” definition of semi-­presidentialism, which gives priority to the extent of presidential powers over the mode of the election as a key defining feature. The second chapter focuses on the origins of the constitutional systems in the three countries respectively as well as their subsequent developments, including constitutional amendments that affected the position of presidents and their powers. In this chapter, we show that presidencies were not constructed as completely new institutions; rather, to a greater (the Czech Republic) or lesser (Slovakia) extent, they reflected their historical constitutional legacies. We also show subsequent constitutional amendments and the context in which they were passed. The third chapter presents the formal presidential powers of these Central European countries. Though it does not provide a full list of presidential powers for each country, we instead focus on only the most important powers that are then discussed in terms of our typology of presidential powers. This chapter also provides a measure of scoring presidential powers that shows the Polish president as being the most powerful, though the scores between Central European countries do not differ significantly. The aim of the fourth chapter is to provide a comparative analysis of the extent to which Central European presidents have been capable of using their powers by concentrating on the interactions the president has had with governments (and prime ministers), parliaments and constitutional courts along with the use of presidential discretionary powers in practice. In addition, the presidential powers in practice are explored in the context of constitutional conflicts. We argue that direct elections might contribute to the escalation of constitutional conflicts, but this factor is still far from being the most important and has only led to an intra-­ executive conflict in very select cases. Indeed, we show that even indirectly elected presidents have been quite active and assertive, something which has led them into occasional conflicts with the prime minister and/or their cabinet.

Introduction   5 The fifth chapter is concerned with the issue of presidential accountability through the distinction between political and constitutional accountability. It also provides readers with past attempts to apply both kinds of accountability vis-­àvis the Central European presidents. The sixth chapter explores sources of informal powers that stem from the presidents’ relationships to parliamentary parties, public attitudes towards the presidency and the popular election of the president. In addition, this chapter places a great deal of stress on the historical traditions and the constitutional heritage, which – as we show – are of great importance in understanding the constitutional settings of the considered countries. We argue that these factors are often neglected or are not systematically taken into account in analyses of presidential powers. We further argue that the informal powers of the president deserve a great deal of attention when the objective is to understand the inherent logic of the three Central European regimes. The final chapter of our book connects two major issues: the concepts of parliamentarism and semi-­presidentialism are presented in the first chapter, and the comparative and empirical analysis of Central European regimes are presented in Chapters 2–6. We apply the concept of parliamentarism as well as our concept of semi-­presidentialism to these three regimes (Czech Republic, Slovakia and Poland). In doing so, we argue that the regimes should be classified as parliamentary, not only in line with our definition but also because of other arguments that appear in constitutional theory combined with the constitutional practices of the three countries.

Notes 1 Within the confines of this book, we employ the terms “cabinet” and “government” interchangeably to denote a group of ministers headed by a prime minister. Though this is not the only meaning of government, we have chosen to maintain this convention when discussing specific cabinets that form a government. 2 Unless stated otherwise, we use the terms “popular” and “direct” presidential elections interchangeably, even though popular elections may not necessarily be direct, because the popular will might be mediated through another body of electors (e.g., the USA). Given the fact that none of the countries in Central Europe have seriously considered anything other than direct elections (i.e., citizens elect their president in direct general elections), it is justifiable to use the both terms as synonyms.

1 Theory and concepts Between parliamentarism and semi-­presidentialism

The classification of modern democratic regime types is one of the core issues at play in comparative politics. José Cheibub, Zachary Elkins and Tom Ginsburg (2014: 515) even claim that “the conceptualization of the relationship between executives and legislatures … is central to scholarship on comparative politics, and no categorization is more influential than the tripartite distinction between presidentialism, parliamentarism and semi-­presidentialism.” Conceptual discussions on how particular regime types should be defined are an inseparable part of this classification. Whereas presidentialism and parliamentarism are defined in a relatively clear manner and classic definitions of these regimes (cf. Beyme, 2000; Lijphart, 1999; Linz, 1990, 1994; Sartori, 1994; Strøm, Müller and Bergman, 2003; Verney, 1959) are generally accepted, the same cannot be said about semi-­presidentialism. In this chapter, we focus on some conceptual issues related to parliamentarism and, more importantly, to semi-­presidentialism. Since the latter case is plagued by significant ambiguity, we focus most of our attention on it. First, we give an overview of the approaches and concepts of the semi-­presidential regime, and then we present our understanding of semi-­presidentialism before finally addressing questions pertaining to presidential powers and the method of electing the president in regimes of parliamentarism and semi-­presidentialism, primarily because these two issues play a central role in the concepts of both regimes.

1.1  Extant scholarship on semi-­presidentialism The literature on semi-­presidentialism is full of paradoxes, ambiguities, confusions and disagreements (for details, see Brunclík and Kubát, 2016b). To start to uncover these areas of uncertainty, one should begin with Maurice Duverger, who introduced the concept into political science; the term itself as well as Duverger’s conceptualization of semi-­presidentialism has not been generally accepted however. On the one hand, there are scholars who are either reluctant to use the concept or totally reject it because of its alleged inadequacies. In its place, they prefer to use the traditional distinction between parliamentary and presidential regimes or venture to use other labels. On the

Theory and concepts   7 other hand, there are scholars who have advocated Duverger’s proposal and tried to modify and improve upon his definition. The last group of scholars is nevertheless heterogeneous, especially considering the fact that some have drastically changed Duverger’s definition, in turn leading to further debates on the concept. The following sub-­section discusses the major features of this academic debate. 1.1.1  “The inventor”: Maurice Duverger and his concept of semi-­presidentialism Maurice Duverger was the first to delineate the concept of semi-­presidentialism, though his concept was developed gradually over time. In 1960, he pointed out that the 1958 French Constitution included elements of parliamentary as well as presidential regimes (Duverger, 1960: 686) and argued that the French regime was ultimately a parliamentary one (Duverger, 1960: 633, 679). This could not be deemed surprising as it was not until 1962 that the constitution was amended and the head of state was directly elected through a popular election (see also Martinez, 1999: 10). Duverger also noticed structural similarities between the Fifth Republic of France and the regime that had worked in the Weimar Republic (Duverger, 1966: 492). In 1970, Duverger officially used the term semi-­ presidential (semi-­présidentiel) for the first time (Duverger, 1970: 277; see also Bahro, Bayerlein and Veser, 1998: 202; Lovecy, 1992: 388), which was defined as a regime with a directly elected head of state whose powers are stronger than the powers of a president in a parliamentary regime. According to this concept, the government is headed by a prime minister who – together with their ministers – can be dismissed by parliament (Duverger, 1970: 277). Duverger strictly reserved the term for France, Finland and Austria. However, in 1974 he eventually came to apply it to other countries as well. At that time, he additionally used an altered definition of semi-­presidentialism, which was characterized by (1) a president elected by universal suffrage, (2) a prime minister and ministers who could only govern with parliamentary confidence and (3) the presidential power to dissolve parliament (Duverger, 1974: 121–122). In his 1978 book Échec au roi, Duverger (1978) analyzed the concept in even greater detail. He applied the term to seven countries (Austria, Finland, France, Iceland, Ireland, Portugal and Germany (the Weimar Republic). Duverger’s final definition of semi-­presidentialism was introduced in his 1978 study. It also appeared in his English-­language article (Duverger, 1980) where he defined semi-­presidentialism by  three elements: 1) the president of the republic is elected by universal suffrage, 2) he possesses quite considerable powers; 3) he has opposite him, however, a prime minister and ministers who possess executive and governmental power and can stay in office as long as the parliament does not show its opposition to them. (Duverger, 1980: 166)

8   Theory and concepts Later, he maintained this definition and considered Poland and Romania to be new semi-­presidential systems (e.g., Duverger, 1992). In the end, Duverger’s concept attracted a great deal of scholarly interest and ignited an extensive debate on semi-­presidentialism (Bahro, Bayerlein and Veser, 1998: 202; cf. Elgie, 1999: 2). Since then, there has been a rapid expansion of the literature on semi-­presidentialism, in terms of both theoretical and empirical studies. 1.1.2  “Doubters” and “rejecters” of semi-­presidentialism Nevertheless, there is a group of authors who remain very skeptical towards the concept. Shugart and Carey were originally much less sympathetic towards the term semi-­presidentialism, and they regarded Duverger’s concept as “misleading,” which brought them to replace his label of semi-­presidentialism with their own concept of a “premier-­presidential” system (Shugart and Carey, 1992: 23). Their second concept of “president-­parliamentarism” was an additional distinctive category.1 Under the former, (1) the president is elected by popular vote for a fixed term in office, and (2) the president selects the prime minister who is to head the cabinet, but (3) the authority to dismiss the cabinet rests exclusively with parliament. In the latter system, (1) the president is elected by popular vote for a fixed term in office, (2) the president appoints and dismisses the prime minister and other cabinet ministers, and (3) the prime minister and cabinet ministers are subjected to both parliamentary and presidential confidence (Samuels and Shugart, 2010: 29–31; Shugart, 2005: 334; Shugart and Carey, 1992: 23–24).2 Similarly, Wolfgang Merkel adopted the term “semi-­presidentialism,” but then argued that it should be further divided into two subtypes: “presidential-­ parliamentary” (präsidentiell-parlamentarisches Regierungssystem) and “parliamentary-­presidential” (parlamentarisch-­präsidentiell Regierungssystem). The latter is characterized by a dual executive, constituted by a directly elected president along with a prime minister nominated by the president and elected by parliament. In contrast to the former, the president does not have the power to dismiss the cabinet or the prime minister against the will of parliament (Merkel, 1996: 77–78; Merkel and Stiehl, 1997: 591–592). Nonetheless, some scholars have displayed a hesitant and changing relationship to semi-­presidentialism. Here, we focus on two well-­known scholars, the first of whom is Arend Lijphart. He was originally relatively doubtful towards the usefulness of the concept, but he came to adopt the concept due to its increasing usage. In 1993, Lijphart claimed that when the president is head of government, the system is mainly presidential, but when the prime minister assumes this role, the system shifts to parliamentarism. We are inclined to classify the Fifth Republic as mainly, albeit not fully, presidential. We defer, however, to the prevalent view that it should be labeled as semi-­presidential regime. (Lijphart, Rogowski and Weaver, 1993: 307–308)

Theory and concepts   9 A few years later, in his comments on the concept of semi-­presidentialism, Lijphart claimed that “most systems that appear semi-­presidential can be classified either as mainly presidential or as mainly parliamentary; hence the semi-­ presidential category becomes a nearly empty cell” (Lijphart, 1997: 127). On the other hand, in 1999 Lijphart mentioned his own definition of semi-­ presidentialism as being when the semi-­presidential system is characterized by a popularly elected president and a prime minister dependent on a parliament. As a crucial criterion to classify empirical cases, he uses presidential powers, in which context he poses the question, “Who is the real head of government?” (Lijphart, 1999: 121). Still, most “semi-­presidential” systems (e.g., Portugal, Finland, Austria, Ireland and Iceland) are subsumed under parliamentary systems in his classification of democratic systems (Lijphart, 1999: 119). A clear ambiguity in the usage of the term can be also found in works of the second well-­known scholar, the German academic Klaus von Beyme, who takes the French case as a point of reference. He speaks about a mixed system since the French regime is neither presidential nor parliamentary (Beyme, 1999: 51). In his 1973 book, von Beyme understands semi-­presidentialism as a mixed system (Mischform) somewhere between presidential and parliamentary regimes. He provides the French Fifth Republic along with the Weimar Republic as the two leading examples of this hybrid system (Zwittergebild). On one side, parliament can force the cabinet out of office (through a vote of no confidence) while at the same time the president can dissolve the national assembly, and thus enforce loyalty from the parliamentary majority. At this point, the president can secure a preferred cabinet. Still, the French system approximates the presidential regime in that according to semi-­presidentialism, the president is the chief executive. Also, presidential legitimacy is derived from popular elections. The cabinet is dependent upon both the president and parliament, which may lead to a diverse range of situations (Beyme, 1973: 381; see also Beyme, 1999: 51). However, von Beyme has elsewhere argued that the semi-­presidential system is “basically a sub-­type of parliamentary regimes” (Beyme, 2001: 14–15). Von Beyme claims that despite the efforts of some authors (e.g., Bahro and Veser, 1995) to create an independent type of democratic regime, the French case is “closer to a parliamentary regime than to an authentic presidential system” (Beyme, 2001: 15; see also Beyme, 2000: 11; Steffani, 1995).3 Most other writers confine themselves to the traditional distinction between parliamentary and presidential regimes (e.g., Baranger and Murray, 2013; Easter, 1997; Rockman, 1997; Siaroff, 2003; Strøm, Müller and Bergman, 2003; Taras, 1997). For example, Reestman argues that semi-­presidentialism is merely a subspecies of presidentialism or parliamentarism (Reestman, 2006: 58). In another camp, one group of scholars has suggested that regimes known as semi-­presidential (typically in France) are just variants of parliamentarism (Baranger and Murray, 2013; Bunce, 1997; Kaminski, 1997; Kempf, 1997; Loewenstein, 2000;4 Mettenheim, 1997; Siaroff, 2003). Another group of (mostly French) authors ends to regard semi-­presidentialism as a subtype of presidentialism (e.g., Conac, 1992a, 1992b; Gicquel, 1999; Luchaire and Conac, 1987). Finally, David Bell describes the French system as presidential, given the fact

10   Theory and concepts that the president becomes not only head of state but also head of the executive branch (Bell, 2004: 535; Bell and Criddle, 1986: 477).5 1.1.3  Duvergerian approach: “advocates” of Duverger’s concept of semi-­presidentialism At the same time, there is a large collective of authors who acknowledge the usefulness of Duverger’s concept of semi-­presidentialism, assume it or have modified it in different ways. Some Duvergerian definitions are broad while others are rather narrow, but they all have one thing in common: they (more or less) explicitly include the trait of presidential powers, though conceptualized in manifold forms. For this group of authors, this criterion became crucial to the viability of the concept. Patrick O’Neil understands semi-­presidentialism as a system in which executive power is divided between a president and a prime minister, whereby the president has substantial executive powers (O’Neil, 1993: 197). Scott Mainwaring also maintains that presidential powers are important in semi-­presidential regimes, arguing that in semi-­presidentialism, (1) the president is elected by popular vote, (2) the president names a premier who is head of government, (3) the premier and cabinet depend upon the confidence of the assembly alone, and (4) the president has meaningful political powers, usually including the right to dissolve parliament (Mainwaring, 1993: 202–203; Mainwaring and Shugart, 1993: 3–4). Likewise, Juan Linz implicitly includes the notion of presidential powers in his understanding of semi-­presidentialism, which is defined in terms of a dual executive: a popularly elected president co-­exists with a prime minister, who is appointed by the president but who needs the confidence of parliament. Meanwhile, the president can dissolve parliament (Linz, 1994). According to Gianfranco Pasquino, a system shall be semi-­presidential  if 1) the president of the Republic is directly or indirectly elected by a popular vote; 2) the president of the Republic has the power to appoint a Prime Minister and, within limits, to dissolve Parliament; 3) the Prime Minister is subject to an implicit or explicit confidence vote by Parliament. (Pasquino, 1997: 130) Moreover, Cindy Skach has defined semi-­presidentialism in terms of two key features, the first of which is a dual executive, i.e., “division of the executive into two independently legitimized and constitutionally powerful institutions: an indirectly selected head of government (prime minister) and a popularly elected head of state (president).” Executive powers, such as the power to preside over cabinet meetings and to direct national policy, is shared between these two executive bodies. The second critical feature of semi-­presidentialism  is the unequal legitimacy, accountability, and responsibility of these two executives vis-­à-vis citizens and their elected representatives.… The president

Theory and concepts   11 is, therefore, autonomous relative to the legislature in that she has an independent and popular mandate and can survive without the legislature’s approval. (Colton and Skach, 2004: 5–6; cf. Skach, 2007: 96–97) Another interesting, yet still purely institutional, classification of regime types was offered by a Finnish scholar, Dag Anckar (see Table 1.1). However, his articles were published only in Swedish (Anckar, 1999a, 1999b) and did not garner much attention. Anckar derived his concept of semi-­presidentialism from previous definitions given by Duverger (1980) and Sartori (1994). In order to classify the regimes, he used four criteria. Two of these are related to the presidential powers vis-­à-vis government: powers in the government formation process and powers to act independently of the government. Two further criteria are related to the presidential powers vis-­à-vis parliament: the dissolution power and the legislative veto power. The presidential power over the cabinet can be strong (the president may appoint the cabinet and act independently of it), moderate (the president has at least one of the powers) or weak (the president does not have the powers at all). The same logic holds for presidential powers over parliament. The regime is semi-­presidential if the president has either a moderate or strong position towards the government and parliament (Anckar, 1999a: 258–259).6 Some “Duvergerian” authors combine the institutional features of semi-­ presidentialism with (party) political variables. Presidential powers are operationalized not just in terms of formal constitutional powers but also in terms of the political constellation, especially with regard to the relationship between the president and the parliamentary majority. For example, Giovanni Sartori emphasizes the “dual authority” of the executive (popularly elected president and prime minister, who share the executive power), which is defined by three factors: (1)  “The president is independent from parliament, but is not entitled to govern alone or directly and therefore his will must be conveyed and processed via his government”; (2) “The prime minister and his cabinet are president-­independent in Table 1.1  Dag Anckar’s typology of regime types Presidential position vis-à-vis parliament

Presidential position vis-à-vis government

Strong

Moderate

Weak

Semipresidentialism

Semipresidentialism

“Balanced” regime

Moderate Semipresidentialism

“Balanced” regime

Semiparliamentarism

Weak

SemiSemiparliamentarism parliamentarism

Strong

Source: Anckar (1999a: 258).

“Balanced” regime

12   Theory and concepts that they are parliament-­dependent: they are subject to either parliamentary confidence or non-­confidence (or both), and in either case need the support of a parliamentary majority”; (3) “The dual authority structure of semi-­presidentialism allows for different balances and also for shifting prevalences of power within the executive, under the strict condition that the ‘autonomy potential’ of each component unit of the executive does subsist” (Sartori, 1994: 132; cf. Sartori, 1995: 146).7 Given the fact that we focus on Central European presidents and regimes, it appears necessary to briefly take into account the scholarship of Central European authors. Presidential powers are also emphasized by Polish authors. Jerzy J. Wiatr defines semi-­presidentialism by the fact that the prime minister and the government are subordinated to both a directly elected president and parliament (Wiatr, 2006: 123). Andrzej Antoszewski and Ryszard Herbut define semi-­ presidentialism as follows: a system with a dual executive consisting of a president and a government led by a prime minister. The president is elected by universal suffrage, and is not accountable to parliament. The president has competence not only in domestic affairs but also particularly in foreign policy. On the other hand, the government is weakened and is accountable to both parliament (through a vote of no confidence) and the president (who may recall it) (Antoszewski and Herbut, 2006: 179). Marek Bankowicz emphasizes the overall strength of the whole executive branch, not just that of the president, in his definition of semi-­presidentialism. Bankowicz characterizes semi-­presidentialism by three basic features: the executive prevails over the legislature; the president plays an important political role and participates in the exercise of power; and there are two active bodies of the executive: the popularly elected president and the government headed by the prime minister, who is politically accountable to parliament (Bankowicz, 2013: 31). In the Czech Republic as well, some authors take into account the interplay of constitutional as well as political aspects when discussing semi-­presidentialism. According to Miroslav Novák, semi-­presidentialism is basically nothing more than a “parliamentary regime plus a strengthened president” (Novák, 2008: 9–10). He goes on to argue that in semi-­presidentialism there is a government headed by a prime minister accountable to a parliament. The president is elected directly and has more powers than a president in a parliamentary regime, and these powers are either constitutional or emanate from a political situation in which the president is backed by a parliamentary majority. The issue of the political majority is perceived as being of extreme importance by Vít Hloušek,8 Lubomír Kopeček and Jakub Šedo. According to them, a regime is semi-­ presidential if the president, who is not accountable to parliament, is the head of a powerful political movement (government or opposition) which provides him with a loyal base for enforcing his own policies. If the president cannot rely on such a movement, it is a parliamentary regime with a directly elected president (Hloušek, Kopeček and Šedo, 2011: 114).

Theory and concepts   13 1.1.4  Post-­Duvergerian approach There is another faction of scholars who claim that all of the aforementioned attempts to define semi-­presidentialism with reference to presidential powers fail, given that each author uses a different criterion for presidential powers. Robert Elgie is a leading figure of this group and speaks of a post-­Duvergerian definition (e.g., Elgie, 2015: 4). There is a clear continuity between Duverger and Elgie since the latter advocates the concept of semi-­presidentialism as a useful tool in comparative analyses. Nevertheless, Elgie makes a significant change to the definition by defining semi-­presidentialism as the situation where “a popularly elected fixed-­ term president exists alongside a prime minister and a cabinet, who are responsible to parliament” (Elgie, 1999: 13). Obviously, the original criterion of presidential powers is intentionally left out of the definition (Elgie, 2004: 317). This definition is considered by some (including Elgie himself ) as “standard,” common or universally accepted (e.g., Elgie, 2011a, 2015; Elgie and Moestrup, 2007, 2008; Elgie, Moestrup and Wu, 2011; Schleiter and Morgan-­Jones, 2009, 2010; Uran, 2010). Elgie and his followers were supported by academics approaching semi-­ presidential regimes from a principal‒agent perspective. They illustrate that semi-­ presidential regimes have a distinct formal constitutional structure as well as a specific pattern for the chain of delegation, which “shapes the pattern and scope of potential variation in the de facto control of semi-­presidential governments” ­(Schleiter and Morgan-­Jones, 2009: 877; see also Amorim Neto and Strøm, 2006; Samuels and Shugart, 2010; cf. Magni-­Breton, 2013: 224). In these studies, the criterion of presidential powers is not used as defining but rather as secondary, one that serves to explore variation within an array of semi-­presidential systems (cf. Siaroff, 2003: 292). For example, Elgie distinguishes between highly presidentialized semi-­presidential countries, semi-­ presidential countries with ceremonial presidents in combination with strong prime ministers and semi-­presidential countries with a balance of executive power (Elgie, 2005; see also Elgie, 1999, 2004). Wu has chosen a very similar approach to semi-­presidentialism, which is defined by “dual chains of legitimacy, command, and responsibility.” He even goes beyond this by identifying four subtypes of semi-­presidentialism based on the nature of the interaction between the president and parliament. These subtypes mark distinctions based on the extent to which the president yields to the parliament and whether or not the president faces incongruence with the parliament (Wu, 2006; see also Axford et al., 2007: 350; Tsai, 2008).9

1.2  How to understand parliamentarism and semi-­ presidentialism The literature review given thus far raises two questions. First, should we recognize semi-­presidentialism as an independent type of democratic regime, or should we rather content ourselves with the two “pure” (Cheibub, 2007: 33) types of democratic regimes – parliamentarism and presidentialism? Second, if

14   Theory and concepts we recognize semi-­presidentialism as a separate democratic regime type, how should we define it? 1.2.1  Semi-­presidentialism as a distinct democratic regime type In the previous section, we showed that there are a large number of authors who, for various reasons, do not regard semi-­presidentialism as an independent democratic regime type and are inclined towards the “traditional” division of parliamentarism and presidentialism. For these writers, the regime that Duverger called semi-­presidentialism is simply perceived as a variant of parliamentarism or presidentialism. It should be noted that an indication of such reasoning comes from Duverger himself, who stated that the semi-­presidential regime is an intermediary between parliamentarism and presidentialism (Duverger, 1980: 165). He also reiterated Georges Vedel’s view that semi-­presidentialism is “not a synthesis of the parliamentary and presidential systems, but an alternation between presidential and parliamentary phases” (Duverger, 1980: 186). Similarly, Arend Lijphart argues that the regimes with popularly elected presidents and parliamentary prime ministers, referred to as semi-­presidential (according to Duverger) or premier-­presidential (according to Shugart and Carey), are Austria, Finland, France, Iceland, Ireland and Portugal, most10 of which “operate much like ordinary parliamentary systems” (Lijphart, 1999: 121). Elsewhere, Lijphart regards the French cohabitation as a situation that subsequently leads to an “essentially parliamentary form of government” (Lijphart, 1997: 127). This pattern of argumentation clearly questions the distinctiveness of semi-­ presidentialism as a democratic regime type. In addition, this train of thought concludes that semi-­presidentialism in fact does not exist because it commences as parliamentarism and then becomes presidentialism over time, or vice versa. This account asserts that the semi-­presidential regime lies on a continuum where, under certain circumstances, it becomes a presidential regime: the system is ruled by a president who commands a parliamentary majority and a prime minister who is responsible to parliament and is thus subordinate to the president. Under other circumstances, semi-­presidentialism can become a parliamentary regime; if backed only a parliamentary minority, the president becomes much weaker than the prime minister, who is accountable to a parliamentary majority. Such reasoning has been criticized by Giovanni Sartori, who defends the uniqueness of semi-­presidentialism. According to him, the existence of semi-­ presidentialism cannot be called into question by its internal functional variability for two reasons. First, a stronger position (commanding a parliamentary majority) does not mean that the president rules the country alone, as is the case in presidential regimes. On the contrary, the weaker position of the president (without a parliamentary majority) cannot in fact be classified as a standard (weak) president in parliamentarism. Second, and more importantly, Sartori objects to the “alternation” perspective: 

Theory and concepts   15 To conceive semi-­presidentialism as an alternation among two other specimens quite simply amounts to blowing apart the mixed nature of the system, and indeed asserts that here we do not have a veritable system. I think that this is a wholesale misunderstanding that misses the point conveyed by my notion of “oscillation.” For alternation suggests a passage from one thing to another, while oscillation is a within-­system movement. In oscillating something remains itself. (Sartori, 1994: 124–125) In other words, the oscillating positions of power occupied by the president and prime minister, given by various parliamentary majorities, is not only an entirely natural feature of semi-­presidentialism but is also exactly what makes semi-­ presidentialism a regime sui generis. Neither in parliamentarism (governed only by the government accountable to parliament) nor in presidentialism (where the president functions as the only representative of executive power) can we find such a phenomenon. According to Pasquino, “Presidential systems cannot simply, so to speak, lapse into semi-­presidential systems nor can parliamentary systems jump into semi-­presidential systems” (Pasquino, 1997: 129). They are structurally different. Sartori similarly stresses this point:  My interpretation is, that French semi-­presidentialism has evolved into a truly mixed system based on a flexible dual authority structure, that is to say, a bicephalous executive whose “first head” changes (oscillates) as the majority combination change. With a unified majority the president decisively prevails over the prime minister and the Constitution that applies is the material one (the conventions of the Constitution). Conversely, and alternatively, with a split majority it is the prime minister supported by his own parliamentary majority that prevails, also on account of the fact that the formal Constitution (what is stated in writing) does support his claim to govern on his own right. (Sartori, 1994: 125) For the sake of order, it is necessary to say that Sartori bases this argument on the French example. Be that as it may, if we are to understand the Fifth Republic as a prototype of semi-­presidentialism (e.g., Sartori, 1994: 120; Skach, 2005: 120),11 then Sartori’s arguments can be applied to semi-­presidentialism in general. It is a separate democratic regime type standing next to parliamentarism and presidentialism and not a variant of one or the other. 1.2.2  The definition The constitutional and political relations between three institutions ‒ the parliament, the government and the head of state ‒ are fundamental for the delimitation of parliamentary and semi-­presidential regimes.12 In the case of both regime types, the executive has two components: the head of state and the government

16   Theory and concepts (i.e., a cabinet led by a prime minister).13 In regard to parliamentary regimes, the sovereignty of the legislative authority, i.e., parliament, is the defining characteristic. In addition, the dominant sector of executive power in all parliamentary regimes is the government that has the power to rule as well as to dispose of tools to implement policies, while the head of state, who is often constitutionally unaccountable, mostly plays rather a ceremonial and representative role, although they may have a few considerable powers (e.g., in the government formation process, the dissolution of parliament, etc.). Still, most of these powers are usually not their exclusive or independent powers but are contingent on the initiative or co-­decision of other constitutional bodies, such as the cabinet, the prime minister or parliament. Finally, in parliamentary regimes the appointment and survival of the government depends on the will of parliament (investiture rules, no confidence procedure) (see Beyme, 2000: 10; Strøm, Müller and Bergman, 2003: 10–12; Verney, 1959). In contrast, our definition of semi-­presidentialism, which is purely based on formal constitutional provisions, meets the following criteria: 1 2

3 4 5

The president is elected via popular elections. The executive branch has a dual structure: a president and a cabinet (headed by a prime minister). Both of them may govern. This means that the president, besides being the formal head of state, is a holder of executive power, which is, however, shared with the cabinet and prime minister respectively. The cabinet (and the prime minister) is derived from both the president and parliament, but the cabinet is only accountable to the latter and can therefore only operate with its consent, or at least its tolerance. The president is independent of parliament and not accountable to it. The president has the power to dissolve parliament.

Thus, in semi-­presidentialism as defined here, there is a dual executive. One of its components is a government appointed by a president. The government is responsible to a parliament, which may at any time get rid of the government through a vote of no confidence. This is the same principle found in the case of a parliamentary regime. However, unlike in parliamentarism, both the president and the government, headed by the prime minister, have executive powers, and both can participate in governing. In actual constitutional practice, however, political conditions may cause the power relations between the president and the prime minister (or the government) to fluctuate in inverse directions: either towards the political strengthening of the position of the president within the political regime, or to its weakening.14 Furthermore, the president is elected by popular vote for a fixed term and cannot be dismissed for political reasons except in cases of gross violation of the constitution, high treason or other exceptional circumstances. In addition, with the actual power to dissolve parliament, the president has a substantial say in the dissolution of the parliament.

Theory and concepts   17 If we compare the two definitions (parliamentarism and semi-­presidentialism), we see two significant differences, the first of which is the position of power occupied by the president. While in parliamentarianism the president is more or less a representative head of state without meaningful executive powers, which are carried out by the government headed by the prime minister, executive power is attributed to the president in semi-­presidentialism but is at the same time shared with the prime minister and the government. The second difference is the method of electing the president. While the definition of a parliamentary regime does not include the mode of election for the head of state, the definition of semi-­presidentialism provides it explicitly. Both aspects of the definition, the mode of election for the president and presidential powers, are controversial points on which to argue. First, the question of the president’s powers is intentionally left out of the so-­called post-­ Duvergerian definition (because it was too vague), whereas Duvergerians emphasize the significance of presidential powers. Second, the question of how the head of state is elected is ambiguous as well. Some countries, especially from East Central Europe, can be understood as either parliamentary or semi-­ presidential regimes depending on the definition of the semi-­presidential regime, yet the regimes may have popularly elected presidents. Therefore, both questions – of presidential powers and of the way the president gets elected – need to be explained further in terms of their suitability for definitions of parliamentary and semi-­presidential regimes.

1.3  Presidential powers vs. popular vote in parliamentarism and semi-­presidentialism The critics of Duverger’s concept of semi-­presidentialism are right in their opinion that the defining feature of the president’s “quite considerable powers” is too general and cryptic. Indeed, this variable is difficult to grasp. Yet we believe it is necessary to continue to incorporate it into the definition of semi-­ presidentialism. What is more, not only is it a key variable for the concept of semi-­presidentialism but also for other democratic regime types; the traditional classification of democratic regimes is based on the way in which power is shared in combination with the issue of who is the chief executive (Decker, 2009: 169–203; Skach, 2007: 95–96; Verney, 1959). In parliamentary regimes, it is the prime minister; in presidential terms, it is the president. We can therefore infer that in the semi-­presidential regime, executive power is divided between the president and the prime minister (Shugart and Carey, 1992: 23; Skach, 2007: 96–97). The importance attached to the positions of power occupied by the president and the prime minister is also crucial because it influences the manner in which democratic regimes operate in practice. Formulating the definition as such makes it possible to distinguish between different types and subtypes of regimes in terms of their functionality. The matter is not just a basic definition of the regime type but also – or perhaps above all – an analysis of whether regimes work or not, or which regimes perform better and which do

18   Theory and concepts worse (see Lijphart, 1998, 2008; Sartori, 1994). Moreover, comparative political science and constitutional law have traditionally used the concept of a rationalized parliamentary regime (Bradley and Pineli, 2012: 655; Mirkine-­Guetzévitch, 1950; Tanchev, 1993: 33–35). The main difference between semi-­presidentialism and rationalized parliamentarism lies in the fact that the former considers the president to be the main, or at least an important, part of executive power while the latter case allocates this function to the prime minister, whereby the head of state’s role is rather formal and ceremonial. Again, the distinction between these two completely different situations rests in the different roles of power occupied by actors in positions of executive power: the president and the prime minister. By removing the president’s power from the definition of semi-­ presidentialism, we may not be able to distinguish it from the republican parliamentary regime because, in both cases, we always find a president co-­existing with a government responsible to parliament. This means that semi-­ presidentialism, defined only through the coexistence of a popularly elected president with a prime minister responsible to parliament, applied to the post-­ Duvergerian approach, i.e., without the variable “presidential power,” will merge with the parliamentary regime, thereby ceasing to be an independent type of democratic regime. That is why the aforementioned argument from Sartori in favor of the uniqueness of semi-­presidentialism as a separate democratic regime type is based on an assessment of the issue of the “power” of the president. If we stick to Sartori for a moment, who is known also for his methodological writings (Collier and Gerring, 2009), we can see that he emphasizes the importance of semantics, or more specifically the semantic accuracy of concepts (Sartori, 1984: 15–16). The word “semi-­presidential” means that this is a situation where the president plays an important role, hence the word “presidential.” Yet simultaneously, the president’s executive power is shared with someone else (namely the prime minister), which therefore constitutes the regime as only “semi” presidential. The second defining feature of semi-­presidentialism is the popular election of the president. However, it is necessary to ask to what extent this element is important or crucial for the definition of democratic regime types, even though this question cannot be answered universally. While the definition of the presidential and semi-­presidential regime usually includes the method of election for the position of president, the definition of the parliamentary regime does not. The popular election of the president is inevitable in a presidential regime, and therefore an integral part of Sartori’s definition whereby the president is in fact the only executive and at the same time is not politically responsible to parliament. It is consequently logical and desirable that the president should be legitimized by universal suffrage because greater power should be linked to a greater degree of democratic legitimacy. In addition, the presidential regime is based on the principle of a strict separation of powers, and the non-­direct (parliamentary) election of the president would distort this principle. In contrast, the only, or at least the dominant, bearer of the executive in a parliamentary regime is the government headed by the prime minister (who is

Theory and concepts   19 accountable to parliament) and not the head of state (who does not need the legitimacy derived from popular elections). In addition, it must be acknowledged that many democratic states with parliamentary regimes are headed by monarchs who are not elected. Therefore, the definition of a parliamentary regime does not include the way the head of state is elected. Not only that, even the head of state can be omitted from the definition altogether (Bradley and Pinelli, 2012; Strøm, 2000: 265).15 For example, a parliamentary regime can be defined as a system of government in which the Prime Minister and his or her cabinet are accountable to any majority of the members of parliament and can be voted out of office by the latter, through an ordinary or constructive vote of no confidence. (Strøm, Müller and Bergman, 2003: 13) Thus, the definition of a parliamentary regime logically affects the role of the government as the sole or dominant component of executive power and its relation to parliament from which it is derived (Shugart, 2005: 324–326). On the contrary, the role of the head of state and the way in which it is elected are not essential for defining the parliamentary regime. The numerous definitions of the semi-­presidential regime, as we have shown above, include the way in which the president is elected, essentially without exception. However, the importance of the method of election of the president can fall into two categories dependent upon the approach chosen. For the Duvergerian approach, the way in which the president is elected is as important as it is in the case of presidentialism. In both cases, we assume that the president is endowed with executive power, from which it is clear that the president should be legitimized by the people, i.e., elected in general elections. However, if the criterion of presidential powers is left out of the definition of semi-­ presidentialism (the post-­Duvergerian approach), the method of election of the president is important for the definition, yet in a uniquely different way. It is, with a certain simplification, the only defining feature of the regime, the reason being that the second definitional trait of semi-­presidentialism (government’s responsibility towards parliament) is also present in the definition of a parliamentary regime. The only definitional difference is the manner of electing a president, the criterion of which is, however, usually missing from definitions of parliamentarism. However, by deriving the definition of semi-­presidentialism from the Duvergerian approach, which takes the executive powers held by the president as its primary defining quality, the way in which the president is elected is somewhat sidelined. This can be exemplified by Munkh-­Erdene’s definition of semi-­ presidentialism: For a system to be semi-­presidential, there must be a popularly elected, fixed-­term president and this president must have institutional authority in the formation and retention of the executive. This means that the presence

20   Theory and concepts of a popularly elected fixed-­term president does not necessarily make a regime semi-­presidential. (Munkh-­Erdene, 2010: 330) This fact is illustrated in this book by states that introduced popular elections for the president without giving him executive powers. The introduction of the popular election of the president was not at all related to considerations about strengthening the presidency in terms of its powers. In line with Duvergerian definitions of semi-­presidentialism, parliamentary regimes are distorted by the general election of the president. This applies to some of the countries in Central and Eastern Europe as well. The general election of the president in Central Eastern Europe after the fall of Communism in 1989 was perceived as a reaction to the previous era of non-­democratic regimes characterized by oppression and also by the absence of (in most cases) individual heads of state. Thus, popularly elected presidents were to represent “the general democratization spirit of the time” (Mlejnek, 2014: 40). We shall discuss this in more detail in Chapter 6, but it suffices here to say that the reasons for the introduction of general presidential elections were often historical and frequently related to (a) the transition to democracy, (b) state independence around 1989 (for example, Poland or Slovenia), (c) the remnant of a former (now not existing) strong (perhaps even authoritarian) president (like Tudjman’s Croatia in the 1990s) or (d) parliament’s failure to elect a president (Slovakia in 1998–1999) and the like (Wiatr, 2016). Nonetheless, this is not just about post-­Communist Europe. Even in Western Europe, we find examples of countries where the general election of the president had nothing to do with the desire for a ruling president. For example, in Ireland the Constitution of 1937 introduced a popularly elected president, but his powers were significantly limited in accordance with the Westminster model. The popular election of the president was introduced as an expression of the country’s independence within the United Kingdom, such that the head of state was to be elected by the Irish citizens themselves (Gallagher, 1999: 106).16 Taking into account all of the abovementioned circumstances, we argue that the way a president is elected should be a defining feature of presidentialism and semi-­presidentialism, but not of parliamentarism.

Notes   1 In 2005, Shugart explicitly classified these two concepts as subtypes of semi-­ presidentialism (Shugart, 2005).   2 Many other scholars adopted this concept (e.g., Bucur, 2017; Morgan-­Jones and ­Schleiter, 2004; Protsyk, 2005; Roper, 2002; Sedelius and Mashtaler, 2013)   3 It is interesting to note that Klaus von Beyme, despite being reluctant to acknowledge semi-­presidentialism as a separate regime category, speaks about the “distinctive features” of semi-­presidential systems, including the popular election of the president, a double executive leadership, presidential prerogatives – notably in defense and foreign policy – a notable influence over the government formation process, the power (de facto or de jure) to dismiss the cabinet, etc. (Beyme, 2000: 11–14; cf. Beyme, 2001: 5).

Theory and concepts   21   4 For example, Loewenstein talks about “tamed parliamentarism” (gebändigter Parlamentarismus) in connection with the Fifth French Republic (Loewenstein, 2000: 94).   5 Some other scholars prefer using various labels to describe the French Fifth Republic as well as other regimes which are often described as semi-­presidential: for instance, “neopresidentialism” (Blahož, Balaš and Klíma, 2003), “republican monarchy” (Mény, 2002) or “mixed” (Cheibub, 2007). Keeler and Schain use the term “hyperpresidentialism” for one of the phases of the French Fifth Republic (Keeler and Schain, 1997: 95–97). For an overview of the French literature, see also (Bahro, Bayerlein and Veser, 1998: 203–204; Pasquino, 2005: 312–313). This situation shows that Maurice Duverger, who introduced the concept of semi-­presidentialism into political science, had very little impact on the French scientific community and was mostly criticized in his home country. Elgie calls this situation “Duverger’s paradox”: “The ideas for which Duverger was internationally famous had very little impact on the research agenda within France” (Elgie, 2011b: 75).   6 In Finland, to which the concept of semi-­presidentialism was also originally applied and which used to have a very powerful president, the concept of semi-­presidentialism is also widely accepted. The nature of the regime was relevant in scholarly articles in relation to several amendments to the 1919 Constitution and especially in relation to the new 2000 Constitution, which confirmed both weaker presidential powers and the popular election of the president – two crucial features of previous constitutional amendments (e.g., Anckar, 1999a; Paloheimo, 2007; Raunio, 2011; Raunio and Wiberg, 2003). In another country often considered to be semi-­presidential, Portugal, the term has been generally accepted by the scientific community as useful to describe the respective political regimes. As Bahro points out, the important book by Duverger, Échec au roi, was translated into Portuguese (in 1979 and again in 1993) but not into English (see Bahro, Bayerlein and Veser, 1998: 202, fn. 3). The concept sparked a political and academic discussion with regard to the 1982 revision of the Portuguese Constitution (e.g., Amorim Neto and Lobo, 2009; Canas, 1998; Lobo, 2005; Miranda, 2003; Sousa, 1992). On the other hand, there are some scholars (e.g., Gomes, 2002) who qualify the Portuguese system as a parliamentary-­presidential mix. Paulo Otero speaks about a parliamentary rationalized system (Otero, 1995: 792).   7 It should be noted that the Sartorian approach prevails in Italy. The French Fifth Republic is taken as a prototype of semi-­presidentialism (Ceccanti, Masari and Pasquino, 1996; Salvi and Fisichella, 1998; Sartori, 1995). Many other systems, which are elsewhere characterized as semi-­presidential, are excluded from the concept.   8 In another study, Vít Hloušek argues that semi-­presidentialism consists of three elements: (1) a directly elected head of state, (2) the government being responsible to the parliament (or more precisely to its lower chamber, the house of deputies, in the Czech case), and (3) the president having a real impact on the composition of the government and its agenda. (Hloušek, 2014: 101)   9 Similarly, Skach divides semi-­presidential systems into three subtypes, which “are electorally generated, because they arise from the interaction of constitutional rules and procedures, on the one hand, with voters’ choices at elections on the other hand” (Skach, 2007: 101). These include a consolidated majority (the president and prime minister enjoy the same majority in parliament), a divided majority (the prime minister has a majority, in contrast to the president) and a divided minority (neither the president nor the prime minister has a majority) (Colton and Skach, 2004: 6; Skach, 2005, 2007). After all, Shugart, Carey and Samuels (Samuels and Shugart, 2010; Shugart, 2005; Shugart and Carey, 1992), whose studies are presented above, differentiate their categories of “premier-­presidential” and “presidential-­parliamentary” systems on the basis of the presidential power to dismiss the cabinet.

22   Theory and concepts 10 France is a special case, whereas Finland can be classified as a parliamentary system (Lijphart, 1999: 122–123). 11 See also note 7. 12 We claim that using these democratic regime types is justifiable only in liberal-­ democratic polities where the key features of constitutionalism (separation of powers, checks and balances, vertical and horizontal accountability) are respected principles, in contrast to various types of non-­democratic or hybrid regimes where these principles are just a façade. 13 As we show in Chapter 2, the head of state is sometimes perceived as a constitutional body sui generis, being outside the executive or legislative powers. 14 As far as the former case is concerned, we can mention France, where President de Gaulle gained a somewhat stronger position for himself and his followers than what explicitly followed from the 1958 Constitution (see Duverger, 1980) and where, until 2002, the president’s and prime minister’s political positions used to shift depending on whether or not the cohabitation occurred. As for the latter case, this is a situation where the president (for many reasons) has not in practice fully used their powers for a long time. Thus, it is formally a semi-­presidential regime, but it works in practice as a parliamentary one. It would become a real semi-­presidential regime if the president began to use the powers and the president’s role in terms of executive power was at least comparable to that of prime minister. Examples include countries such as Iceland and Austria (Duverger, 1980; Kristinsson, 1999; Müller, 1999). Concerning Austria, speculation about the “revival” of presidential powers appeared during the presidential election in 2016 when Norbert Hofer, a presidential candidate, suggested that his position could be significantly different in comparison to previous presidents. However, Hofer was defeated by Alexander Van der Bellen, who remained rather restrained in employing presidential powers. 15 Alternatively, the head of state is mentioned only marginally as a formal component of executive power, which, together with the government, is involved in the dissolution of parliament; nevertheless, the head of the executive is the government headed by the prime minister (Stepan and Skach, 1993: 3). Although Giovanni Sartori assumes the existence of the head of the state in the parliamentary regime, he makes only marginal mention of it; in fact, he does not consider it essential for his definition (Sartori, 1994: 101–117). 16 A similar example is Iceland (Kristinsson, 1999).

2 Origins and developments of the Central European regimes’ institutional settings

The aim of this chapter is not only to air what the institutional architecture of the three democratic polities look like, but also to inquire into why the constitution makers made the choices they did and what were the major sources of inspiration for the new constitutions. We believe that it is of the utmost importance to understand the ideas and arguments that stood behind the new constitutional settings because these thoughts affected the subsequent understandings and interpretations of constitutional provisions as well as constitutional practices (cf. Cheibub, Elkins and Ginsburg, 2014: 514; Mathernova, 1992: 472–473). The importance of this line of argumentation will be fully apparent in the following chapters of this book. Literature on the formation of constitutions offers several approaches (for an overview see, for example, Boulanger, 1999; Marková, 2015: 18–22): rational choice theory-­inspired approaches focusing on the interests of major players in the decision-­making process; theories related to the building of new institutional settings including electoral systems (e.g., Elster, 1995; Negretto, 2008; Renwick, 2010); approaches that take into account a few key principles and ideas that affect the behavior of decision-­makers irrespective of their particular interests (efficient, just and democratic institutions, the separation and balancing of powers, etc.), notably methods concerning transient situations in which none of the actors can be sure that his/her interests take priority (e.g., Benoit and Hayden, 2004; Blais and Massicotte, 1997; Frye, 1997; Przeworski, 1991); approaches that emphasize inspiration from other countries (Elster, Offe and Preuss, 1998) or even path-­dependency approaches that are concerned with the historical heritage that predetermines the choice of future institutional solutions (Alexander, 2001; Kitschelt, 1999; Mahoney, 2000; cf. Wiatr, 1999).1 These strategies can be more or less applied to all of the three countries studied in this text. In the Polish and Slovak cases, we can speak about the path-­ dependency approach and rational choice theory, whereas in the Czech Republic, the path-­dependency approach clearly dominates.2 In contrast, inspiration from abroad can be discerned in the three countries’ constitutions, although the inspiration was rather marginal. Regardless of these similarities, we shall analyze Poland separately. Polish constitutional traditions and trajectories are sharply distinguished from those of the Czech and Slovak Republics. The transition to

24   Origins and developments democracy in 1989 played a key role in the process of devising the new Polish political system. Therefore, we pay significant attention to the transition in Poland, whereas in the Czech and Slovak cases, the transition to democracy is seen to be less important for the new constitutional settings. The Czech and Slovak Republics can be considered close “twins,” not only in terms of their constitutional settings but also because much of their modern political and constitutional history took place within a single common state – the former Czechoslovakia. Therefore, their constitutional frameworks and origins are discussed together, even though the Slovak constitutional changes of the 1990s meant more divergence in the Slovak case than witnessed in that of the Czech Republic.

2.1  Czechoslovakia, the Czech Republic and Slovakia The Czech and Slovak Republics were established on January 1, 1993. Both states arose from their original common state, the former Czechoslovakia, which was peacefully dissolved by the end of 1992. The dissolution of this former federal state was not a spontaneous event but a process prepared for and planned in advance (Kipke and Vodička, 1993; Musil, 1995; Stein, 2000). The end of the federation was marked with a “strong nationalisation of Slovak politics” (Pešeková, 2011: 87). Thus, the dissolution process, to a large extent, overshadowed the making of the constitutional and institutional foundations of the two new states.3 Both successor countries designed and approved their respective constitutions over a short period of time after the parliamentary elections were held in June 1992: Slovakia did so in September 1992, and the Czech Republic made the move in December 1992, although first thoughts and discussions on the new constitutions had appeared much earlier (for details see Fawn, 2000: 28–29; Kopecký, 2001a: 34; Malová, 2001: 350; Orosz et al., 2009: 14). Formally, both republics were entirely new states on the map of Europe, but one could hardly argue that they started from scratch as new states since their constitutions were not authentically new constitutional texts but rather chiefly reflected earlier models. Therefore, it is necessary to discuss the historical roots of the setting for the constitutions of both countries, with a particular emphasis on the First Czechoslovak Republic (1918–1938) (cf. Bröstl et al., 2015: 235–236). 2.1.1  Czechoslovakia and its ambiguous tradition To begin with, the First Republic was a real democracy, especially in comparison to other countries in the region that were either certainly not democratic or their shaky democracies had turned into authoritarian regimes no later than the 1930s. This was one of the reasons why (notably Czech) political elites looked for inspiration mostly in the 1920 Constitution. Although Czechoslovakia became one of the successor states of the Austro-­Hungarian Empire, its constitutional and

Origins and developments   25 political settings were (with a few exceptions ) created deliberately from scratch, i.e., with no connection to the previous Austro-­Hungarian tradition. Indeed, the authors of the constitution sought a sharp break from the previous regime. Czechoslovakia was a republic, not a monarchy. Moreover, the most radical voices demanded that the individual head of state be abolished, though that did not eventually happen, as in neighboring Austria where the individual head of state temporarily disappeared from politics (Kysela, 2008a: 235). On the other hand, the president of the new state enjoyed great authority and respect, partly due to his capacity to carry on the tradition of the respected monarch (see p. 00). The authors of both of the Czechoslovak constitutions – the interim Constitution of 1918 and that of 1920 – drew from various sources. Major inspirations for the Constitution of 1920 were the American and French Third Republic models. While the US Constitution became an important model for the preamble, as well as for sections on the separation of powers and the judiciary, the French Constitution predominantly influenced the nature of the Czechoslovak parliament and the Austrian model was used to formulate civic rights (Broklová, 1992: 22–23; see also Wintr, Antoš and Kysela, 2016). In spite of the fact that the American and French constitutions are significantly different, which stems from them representing very different types of democratic regimes, the Czechoslovak Constitution established republican parliamentarism. A strictly parliamentary, non-­presidential form of government was enshrined in the constitution. The Czechoslovak parliamentary regime was based on the principle of proportionality and consensus,5 though it was marked by a series of specifics, one of which became the special position of the president. Although the US model of presidency was not transferred to the Czechoslovak Constitution, it was nonetheless considered. Even the founder of the First Republic and its first president, Tomáš G. Masaryk, was positively inclined towards the American presidency model (Masaryk, 1938: 258, 576–577) as he did not want to simply be a passive and representative head of state (Broklová, 2001: 34; Kopeček and Mlejnek, 2013: 34).6 However, the final version of the constitution did not provide for the existence of a strong or “ruling” president, who was eventually indirectly elected even though he received some significant powers in relation to the government and parliament. On the other hand, it was primarily a political practice that made him an important and influential figure of Czechoslovak culture, politics and society. For starters, Masaryk, but also the second Czechoslovak president, Edvard Beneš – through their political as well as moral significance – clearly moved beyond the established formal constitutional powers (Bankowicz, 2015; Klimek, 1996). “The President Liberator,” “Daddy Masaryk,” as the first president was commonly nicknamed, significantly contributed to the general image and perception of the president as a “monarchist” or perhaps even almost as a sacred institution seated at Prague Castle – the traditional seat of Czech kings (Pithart, 2014).7 In sum, both interwar Czechoslovak presidents (Tomáš Garrigue Masaryk and Edvard Beneš) established the tradition of formally rather weak, but politically active and influential, presidents. The constitutional and political traditions of the First Republic were therefore 4

26   Origins and developments based on two essentially contradictory elements: parliamentarism on the one hand, and an influential presidency on the other. Taking a closer look at both states, we discover that the degree of inspiration provided by interwar Czechoslovakia did actually differ. Whereas the Czech Republic has openly claimed allegiance (though not exclusively) to the constitutional legacy of the First Czechoslovak Republic (both Czechoslovak presidents were generally accepted as positive figures), the Slovak approach to interwar Czechoslovakia has remained ambiguous. On the one hand, Slovakia adopted a very similar political system to that of the Czech Republic after 1993 given the strong influence of the First Czechoslovak Republic as well as the influence of the Communist constitutions. On the other hand, “Contemporary Slovak politics draws almost no inspiration from it” (Spáč, 2013: 123). One reason was that interwar Czechoslovakia was glued together by the construct of a so-­called “Czechoslovakism” – an artificial creation of the Czechoslovak nation whose goal was to significantly outnumber the German population with “Czechoslovaks” within the Czechoslovak state. Although the idea of this construct was to proclaim the unity of both nations, it actually led to the opposite, and tensions between the two nations were to persist, at least in latent form. In Slovakia, the concept of Czechoslovakism was sidelined, and instead the autonomist political forces that sought greater autonomy or even the independence of the Slovak state dominated (Lupták, 2008: 42). We can summarize this section in the following statement by Peter Spáč:  Throughout the First Republic, the Slovak polity kept its distance from the center in Prague; it featured an independent party subsystem and gradually stepped up its demands for autonomy. Reservations about the First Republic were transferred into post-­1989 Slovak politics. (Spáč, 2013: 123) 2.1.2  Controversies of the wartime period and the Communist era The period of the First Czechoslovak Republic (1918–1938) was followed by an era that contributed to a much more contradictory heritage: the authoritarian system of the Second Czechoslovak Republic (1938–1939), the Nazi Protectorate of Bohemia and Moravia (1939–1945), the Fascist wartime Republic of Slovakia (1939–1945), the semi-­democratic regime of the Third Republic (1945–1948) and, finally, the Communist (quasi-­totalitarian8) regime that held sway between 1948 and 1989. The Second and Third Czechoslovak Republics consisted of short, transient periods. The Protectorate of Bohemia and Moravia was established and fully directed by Nazi Germany, yet from the perspective of Czech/Czechoslovak statehood, the Protectorate itself was a quasi-­state and a completely alien element in the Czech/Czechoslovak political and constitutional tradition.9 From the perspective of continuity/rupture, however, the wartime Republic of Slovakia and Communist Czechoslovakia are much more interesting and relevant.

Origins and developments   27 Wartime Slovakia is an extremely difficult case, as it “is one of the most controversial periods in Slovak history” (Henderson, 2002: 12). It was the first case of Slovak statehood experienced in the history of the Slovak nation. Adversely, it was still a non-­sovereign satellite of Nazi Germany with a clearly non-­ democratic system modeled to a certain extent on Mussolini’s Fascist Italy (Kamenec, 1992; Krawczyk, 2015). Wartime Slovakia did not, of course, become a constitutional model for the Slovak Republic to follow after 1989 (cf. Henderson, 2002: 12–13) but did become the subject of nostalgic veneration in some areas of Slovak politics10 as well as a subject of passionate debates among current Slovak historians (Cohen, 1999). Moreover, sociological surveys conducted in the 1990s display ambivalent views among Slovaks towards this period (see Bútora and Bútorová, 1994: 17–19). This era was perceived both as morally negative yet synchronously as an era when the Slovak nation had an opportunity to demonstrate its ability to run its own state. This period was also characterized by relative economic growth (Henderson, 2002: 11–15). Similarly controversial is the heritage of Communist Czechoslovakia. On the face of it, this period could hardly be an element of constitutional-­political continuity, but the reality of the situation remained much more complex. Generally, the Communist system brought about a major rupture in the development of Czechoslovak political systems, and nearly all ties with the previous period were cut. While the former Communist Constitution of May 1948 still contained the principles of the separation of powers and of the parliamentary regime (e.g., the principles of responsible government, a presidency, etc., which were of course purely a formality of observing principles, as these principles were not even slightly respected in practice), the “Socialist” Constitution of July 1960 enshrined the principle of the unity of state power, the only formal bearers of which were representative bodies. None of these principles were affected by the constitutional law of the Czechoslovak Federation of October 1968, which formally transformed a unitary state into the two-­member federation consisting of the Czech Socialist Republic and the Slovak Socialist Republic. The National Assembly was then transformed into the bicameral Federal Assembly, which was characterized as the highest body of state power.11 Therefore, it was a kind of government by assembly, which was, of course, purely formal because the real holder of power in the state was the Communist Party of Czechoslovakia (KSČ) built on the principle of democratic centralism. Moreover, the party monopoly in the state was constitutionally enshrined (Balík et al., 2003; Šimíček and Kysela, 2009; Teitel, 1994: 168–169).12 However, the political system of Communist Czechoslovakia maintained some of the elements of the First Republic, primarily the institution of the president of the republic. The tradition of the presidency and the symbolic importance of this institution in the public’s eyes was held in such high esteem (Ryantová et al., 2016) that even the Communists, after the February 1948 coup, did not dare replace it with a collective head of state in line with the Soviet model. Thus, Communist Czechoslovakia was the only country of the Eastern Bloc which kept the individual head of state for the entire duration of the Communist regime

28   Origins and developments from 1948 to 1989.13 Even though the institution of the president was retained in the constitution as a formality of continuity with democratic Czechoslovakia, it did not enjoy the constitutionally privileged status in the slightest. The president’s constitutional role was purely representational (Šimíček and Kysela, 2009: 325), though political practice varied. Given the fact that the centre of power in the state resided in the hands of the KSČ leadership and not in formal state institutions, the presidents (Klement Gottwald, Antonín Novotný and Gustáv Husák), who were simultaneously the head of the KSČ, became de facto ruling presidents. Paradoxically, this peculiar and rather distorted arrangement actually preserved the tradition of having an influential president (Ryantová et al., 2016). All in all, Communist Czechoslovakia surely served as a constitutional model for neither the Czech Republic nor the Slovak Republic. Yet it came to instill a certain formal link between the interwar period and the post-­1989 period, for example, as was seen with the case of the presidency. 2.1.3  The Velvet Revolution and Velvet Divorce Communist Czechoslovakia determined the major formal structure of the constitutional system of early post-­1989 Czechoslovakia (1989–1993) due to the fact that the democratizing Czechoslovakia that emerged after the Velvet Revolution in 1989 (Agnew, 2004; see also Kopecký, 2001a: 22–52)14 did not adopt a new constitution, although Civic Forum (OF )15 proposed a new Czechoslovak Constitution in December 1989 (Filip, 2002: 296; Suk, 2003: 256–268). Moreover, another group of experts appointed by the federal parliament and cabinet embarked on drafting a new constitution during the rule of the “Government of National Understanding” between December 1989 and June 1990. Even after the 1990 elections, the first free and fair elections since 1935, the federal parliament established another constitutional committee (Malová, 2001: 349). In addition, both the Slovak National Council as well as the Czech National Council set up their own expert commissions on constitutions in 1990 and subsequently submitted their draft constitutions (Filip, 2002: 296–299). In the end, however, the 1960 Constitution and the 1968 constitutional law on the federation (with several important changes – see p. 29) remained in force until the end of Czechoslovakia. Why did this happen? Several closely linked factors may provide an answer. First, the fall of Communism in 1989 opened the door to a democratic transformation of the political system. Negotiations for political changes held between the ruling Communist elites and an opposition on the rise only began when the regime was in a state of rapid collapse. They were mostly limited to the technical transfer of powers, whereas discussions concerning new political institutions never took place. The only exception to this pattern was a debate over the mode of election of the president. The opposition rejected the idea fostered by the Communist Party to introduce the popular election of the president (for details see Kopecký, 2001b: 322).

Origins and developments   29 Second, the democratic era allowed for an upsurge of nationalist demands. The relationship between the Czechs and Slovaks within one state came into question and eventually overshadowed the other political issues of the new democratic polity (cf. Filip, 2002: 295–297; Lupták, 2008: 44). Third, the newly democratizing polity as well as the issue of settling the relationship between the Czech and Slovak Republic being opened brought insurmountable obstacles and frustrations to the task of drafting a new Czechoslovak Constitution. The constitutional debates were “difficult, controversial and politicized,” and “confirmed that giving the new parliaments the double role of drafting Constitutions and carrying out regular legislative functions adversely affected the constitution-­making process” (Malová, 2001: 349). As a result, the institutional structure of the democratizing Czechoslovakia remained largely unchanged. Of course, necessary amendments to the Socialist Constitution, particularly the removal of constitutional articles on the leading role of the Communist Party of Czechoslovakia, on the National Front as the official umbrella organization ruling the country and on Marxism-­Leninism as the official state ideology, were adopted (Kopecký, 2001a: 36; Orosz, 2012: 36). Further institutional changes like the adoption of a proportional electoral system and the terms of office were discussed only among the new political elites (Marková, 2015: 22–23; Suk, 2003). To sum up, the political system developed largely in a spontaneous fashion,16 primarily considering that the main themes of the period were the development of political pluralism, free elections, decommunization issues, economic transformation (especially the privatization of state property) and also, or perhaps above all, discussions on the relations between the Czech and Slovak parts of the federation. This last component subsequently resulted in debates on the division of Czechoslovakia – the “Velvet Divorce” (Agnew, 2004), which finally occurred in 1992. These issues proved far more urgent and essential than adopting a new constitution for Czechoslovakia in the early 1990s, although the Federal Assembly, the Czech National Council and the Slovak National Council, all drawing their legitimacy from the 1990 elections (or the first free and fair elections after half a century), were supposed to design a new constitutional text by 1992 when their terms of office were set to expire (cf. Filip, 1999: 23).17 Given the fact that the political elites were unable to strike a deal on a functional arrangement of the relationship between the Czech and Slovak Republics under a common state, the debates on the future constitutions of the Czech Republic and the Slovak Republic eventually became increasingly more relevant than the debates on the Czechoslovak Constitution. Thus, it was not until July 1992 that politicians started working on the new constitutional text (Kysela, 2008a: 236; Marková, 2015: 24; Orosz, 2012: 36). As a result, somewhat paradoxically but in fact naturally, the short period of the “post-­November” Czechoslovakia (1989–1992) did not provide much inspiration for the constitutional systems of the successor republics.18

30   Origins and developments 2.1.4  Making of the 1992 constitutions As mentioned above, the first drafts of the Czech and Slovak constitutions emerged during the election period of 1990–1992.19 Yet the work on constitutional drafts that led directly to the final versions of the constitutions of both countries were launched much later in the Czech Republic than in the case of the Slovak Republic (Kopecký, 2001b: 331; Stein, 2000). From the perspective of this book, it is important to mention that Václav Havel was originally supportive of a more powerful presidency. In his constitutional draft from March 1991, the president had the power to dissolve parliament, to declare a state of emergency and to call for a referendum. In addition, the president’s legitimacy was strengthened through direct elections. Havel also advocated the power to appoint a caretaker cabinet in the event of a government crisis. The president was allowed to appoint such a cabinet, which was not obliged to win a vote of confidence in parliament, for the period of about one year (Havel, 2003: 384–385). However, most of his constitutional drafts and amendments, proposed in 1991–1992, failed to receive parliamentary support (for details see Kopecký, 2001a: 32–35, 2001b: 325). The work on the Czech constitutions was only launched after the 1992 elections, whose results opened up an avenue for the Velvet Divorce and caused national political representatives to face the need to expound on the basis for a new constitution. This effort began in the middle of July 1992. As Dušan Hendrych, one of the authors of the Czech Constitution, reminds us, one of the key factors that affected the final version of the constitution was the extremely limited time frame at its makers’ disposal. Two commissions were tasked with developing the constitution: the government commission and the parliamentary commission (Benda, 2013). The former became more prominent and influential as its draft comprised the core of the final version of the constitution (Filip, 2002; Hendrych, 2013).20 Throughout this process, several key issues were central to the debates revolving around the Czech Constitution, e.g., the quorum for passing constitutional laws, the scope of presidential powers, the structure of the parliament, the territorial division of the republic and whether or not to include the Charter of Fundamental Rights and Freedoms (Kopecký, 2001b: 332). It is important to mention that Czech Prime Minister Václav Klaus had a significant impact on the original draft of the constitution, notably in terms of curtailing presidential powers. Klaus limited presidential powers in three pivotal areas: the presidential veto applied only to constitutional bills (the original draft allowed the president to veto any bill); the president lost his power to negotiate international treaties; and the president was no longer able to ask for reports from cabinet ministers. Supported by his Civic Democratic Party (ODS), which opposed “another competing center of executive power” (Kopeček, 2010: 157–158), Klaus’s initiative to curb presidential powers (including his rejection of the direct presidential election) was clearly influenced by Havel’s earlier ideas regarding a more powerful presidency as well as by a latent rivalry between the two politicians. At the same time, Havel still maintained a considerable influence

Origins and developments   31 on both coalition and opposition politicians, eventually enabling him to push through some of his ideas on presidential powers; the esteem in which he was held can be exemplified by the fact that Klaus’s threefold limitation of presidential powers mentioned above did not appear in the final version of the constitution, which was approved by parliament on December 16, 1992 (Filip, 2002; Hendrych, 2013: 31).21 Given the fact that adoption of the constitution was conditioned by a three-­fifths majority of the national parliament, the ruling coalition led by Václav Klaus needed at least 15 votes from the opposition. Thus, the final version of the constitution was a compromise between the ruling and opposition parties (Kopeček, 2010: 161). When it comes to the making of the Slovak Constitution, the first wave of preparations took place during the 1990–1992 election period (Malová, 1994; 2001; Orosz et al., 2009). Within this period, seven drafts of the constitution were prepared by parliamentary parties as well as by a common commission of parliament and the government (Orosz, 2012: 37–38).22 In order to consolidate and unite these proposals, the Commission of the Slovak National Council was established and its draft was presented for public debate in December 1991. However, key parts of the draft constitution offered alternatives and failed to give clear answers on a number of issues. Unsurprisingly, the draft did not consequently result in a constitutional text, and the Slovak National Council left the task of designing the new constitution to the soon to be elected parliament, which was set to take office after the 1992 elections. It was amidst the background of negotiations on the future of Czech‒Slovak relations that the preparations for the new Slovak Constitution were resumed after the 1992 elections. In July 1992, the draft of the constitution was formulated by a group of experts from the Movement for Democratic Slovakia (HZDS) led by Milan Čič, at which point it was submitted to the government and subsequently to parliament. Since it was supported by a government majority and therefore had its necessary political backing, the ruling HZDS (in contrast to its Czech counterpart, ODS) did not seek a general political consensus among the major political parties (cf. Orosz, 2012: 40).23 This proposal notably differed from its predecessors in that it pertained to an independent Slovakia, whereas previous drafts were designed for the structure of a Slovak Republic within the Czechoslovak federation. On September 1, 1992, this version of the draft constitution was finally passed in the National Council by a large majority (114 of the present 134 deputies), less than three months after Vladimír Mečiar’s elective victory (Henderson, 2002: 42).24 The two republics’ “Velvet,” but nonetheless quick, divorce and the urgent need to adopt a constitution for the new Slovak state “may explain why Constitution makers in Slovakia were poorly prepared” (Raadt, 2009: 329; cf. Orosz, 2013: 4). As a result of this speedy solution, vague constitutional provisions including, but not limited to, presidential powers resulted in a number of (particularly) intra-­executive conflicts (Malová, 2001: 362; cf. Horváth, 2014: 75). Scholars themselves have therefore had a unique relationship with the text, not being critical of the constitution on the whole but taking issue with a number

32   Origins and developments of particular constitutional provisions (cf. Kresák, 1994; Nikodým, 2012; Orosz, 2013; Valko, 1994), some of which are discussed below.25 Although subsequent constitutional changes aimed at improving the constitutional text mostly achieved the desired effects (Tóthová, 2008: 51), some have unfortunately brought with them further complications when dealing with it (Orosz et al., 2009: 35–116). As far as major sources of inspiration are concerned, there have been significant disparities between the two countries even though they share a great deal of constitutional tradition due to the establishment of a common Czechoslovak state in 1918. As for the Czech Republic, the only suitable historical heritage when it came to finding a political precedent to follow were the constitutional and political traditions of the First Czechoslovak Republic, which is generally perceived as a basis for the modern Czech liberal-­democratic state to which politicians as well as the general public claim allegiance.26 Unlike the Slovak Constitution, the Czech Constitution explicitly refers to the traditions of both Czech and Czechoslovak statehood (Kopecký, 2001a: 43). As an excerpt from the preamble puts it, “Faithful to all good traditions of the long-­existing statehood of the lands of the Czech Crown, as well as of Czechoslovak statehood” (Constitution of the Czech Republic). The interwar tradition set the general framework for the new constitution and eventually became the major point of departure for the Czech constitution makers, who often explicitly referred to the 1920 Constitution in debates on the future constitution (for more details see Fawn, 2000: 39–45; Gerloch, Hřebejk and Zoubek, 2002: 78; Kopecký, 2001b: 336; Marková, 2015: 25, Mlsna, 2011: 24–31). As Czech scholar Josef Mlejnek (2015: 50) argues, “The Czech Constitution was essentially a creative copy of the first Czechoslovak Constitution,” with of course a number of novelties and features that reflected political and personal interests (for details see Marková, 2015).27 Despite the fact that the discussion on the Czech Constitution concerned many and varied features, most of the constitution makers considered the new constitution to be within the framework of parliamentary republicanism, which included the dominance of a bicameral parliament over the executive branch and a weak president. Another idea present in these debates and worth mentioning involves the inspiration of a German-­style rationalized parliamentarism, made up of the constructive vote of no confidence and proposed by Daniel Kroupa from the right-­oriented political party Civic Democratic Alliance (ODA) (Marková, 2015: 28). The ODA also advocated Hayek’s idea of a bicameral parliament: one chamber would deal with private law, whereas the other would be in charge of public law (Hendrych, 2013: 34; Kysela, 2004: 418). Both ideas put forward by the ODA failed, though the new constitution introduced the Senate (as the second parliamentary chamber), elected for a different term as well as by a different (majoritarian) electoral system and endowed with far weaker overall competences than the Chamber of Deputies. However, some exclusive powers absent altogether from the Chamber of Deputies came to exist in the Senate; for instance, the role of selecting new judges for the Constitutional Court rests entirely with the Senate and the president.

Origins and developments   33 The modern Slovak presidency was categorically influenced by the Czechoslovak past, yet the impact of this past played a remarkably lesser role in the end. Instead, the ideas of the independent Slovak nation and allegiance to it held a far more forceful position in the constitution-­making process (cf. Pešeková, 2011: 87). This difference might be explained by the immensely problematic constitutional history of Slovakia as well as Slovaks’ insecurities regarding its continuity (Beyme, 2001: 10). First of all, Slovaks never had the opportunity to develop inclusive, tolerant narratives of the nation (Boulanger, 1999: 40; cf. Horváth, 2014: 75; Štollová, 2014: 37). Slovakia had to cope with a troublesome past linked to a common history with Czechoslovakia: “Despite the largely positive democratic characteristics of the First Republic, the Slovaks felt that they had merely traded Hungarian domination for Czech domination. They lacked an administrative and political expression of self-­governance” (Matheronova, 1992: 474). Constitution makers in Slovakia had little to gain from the Czechoslovak interwar period (1918–1938) given the tricky concept of Czechoslovakism, not to mention that the legacy of interwar Czechoslovakia did not shape the 1992 Constitution in Slovakia to the extent that it did in the Czech Republic. Slovak constitution makers could not draw purely from the 1920 Constitution, yet nor could they draw much from the country’s own historical legacy because Slovakia’s only period of statehood was that of the Slovak state during World War II, a period in which a puppet regime was established with the assistance of Nazi Germany. In addition, the 1939 Constitution of Slovakia established the president “as a strong autocratic leader” (Malová, 2001: 362). In the process of renewing Czechoslovakia towards the end of World War II, the president was given the right to issue decrees. As a result, the constitutional authority of the Slovak president was crafted according to these controversial traditions (Malová, 2001: 362; cf. Orosz, 2013: 3–4). The past legacy of the presidency in Slovakia became more controversial in terms of personalities. Whereas the Czech political elites and general public could jointly make reference to Tomáš Garrigue Masaryk (whose origin was partially Slovak), Edvard Beneš and Václav Havel (the Czechoslovak federation president from 1989 to 1992), Slovakia lacked such reference points. Whereas the first two Czechoslovak presidents are seen as proponents of the problematic concept of “Czechoslovakism” as well as of the Czech centralist tendencies in interwar Czechoslovakia,28 the two Slovaks, Jozef Tiso (the president of Slovakia in 1939–1945) and Gustáv Husák (the Czechoslovak president in 1975–1989), were strong leaders, but could hardly be taken as models for the presidency of a new democratic state (cf. Bútorová and Gyárfášová, 2008: 249; Pešeková, 2011: 88–89). In contrast to the Czech Constitution, which refers to Czech and Czechoslovak historical traditions, the Slovak Constitution is often seen as a result of the Slovak nation’s desire for its own state. Hence, the Slovak Constitution (its preamble) does not refer to its Czechoslovak roots29 but instead invokes remote historical legends such as that of “Great Moravia,” which was a blueprint of

34   Origins and developments modern statehood linked to “the spiritual bequest of Cyril and Methodius” (Cibulka, 2008: 332; Malová, 2001: 355).30 Given this controversial and complicated constitutional legacy, two major constitutional documents largely came to affect the final text of the 1992 Slovak Constitution. The authors only differ in which document was more influential: the 1920 Czechoslovak Constitution or the 1960 Constitution and the constitutional law no. 143/1968 of the Czechoslovak Federation, including the post-­1989 amendments (Čič et al., 2012: 44; Malová, 2001: 348; Orosz, 2013: 3–4). 2.1.5  Constitutional system and development after 1993 Although the constitutional processes as well as the ways in which the constitutions were eventually passed in both countries differed significantly,31 the Czech and Slovak Constitutions produced very similar institutional regimes. Both republics were established as parliamentary systems of government in which government depends on the support of a parliamentary majority … Presidents … enjoy, at least on paper, largely ceremonial functions. (Kopecký, 2001a: 43) Similar to the 1920 Constitution, the 1992 constitutions of the Czech Republic and Slovakia corresponded in all their main characteristics with the definition of parliamentarism. Hence, like the Czech Republic, Slovakia opted for a parliamentary regime with a weak president in addition to a government functioning as the chief executive responsible to parliament (cf. Kopeček, 2003: 19). Presidents were to be elected by parliament and were meant to operate in a balancing and representative capacity. In both new states, the constitutional courts were established in order to oversee the constitutionality of laws passed by parliaments. The major principles of the Czech and Slovak constitutional systems were originally almost identical, yet later constitutional developments and amendments in 1999–2001 led to both countries somewhat diverging in terms of their constitutional settings. Nowadays, both systems cannot be said to mirror one another but rather can only be regarded as illustrating a resemblance to one another. While both countries are parliamentary republics, each case has been modified in a very specific style. The 1992 Constitution has been amended eight times thus far. Unlike Slovakia, most of these amendments did not result in major impact on the design or operation of the Czech democratic regime, with one exception: the introduction of the direct election of the president in 2012 (and its implementation a year later). While the president was previously elected at a joint session of both chambers of parliament, with the process taking up to three rounds, now the president is elected by popular vote in a two-­round system. The election modality change was not accompanied by any change in presidential competences. The key principle of Czech parliamentarism is that the chief executive – the government headed by the

Origins and developments   35 prime minister – is derived from the parliament, or more precisely from the Chamber of Deputies (not the Senate). The government is politically responsible to the Chamber of Deputies and can only work with the latter’s consent, or tolerance at the very least. Although formally (i.e., in line with the structure of the constitution) part of the executive of power and elected in direct and general elections, giving political influence, the president holds a rather meager amount of executive power (Bureš et al., 2012; Wintr, 2015).32 The Slovak case is strikingly different in some respects. Slovak political developments after 1993 were significantly complicated by the fact that under Prime Minister Vladimír Mečiar, Slovakia’s track towards a standard liberal democracy was derailed and, instead, moved closer to an illiberal democracy (cf. Bútora, Mesežnikov and Bútorová, 1999; Szomolányi, 1999a). Imprecise wording of the original constitution allowed Vladimír Mečiar to circumvent major principles of liberal democracy. Hence, significant constitutional changes were passed when the anti-­Mečiar coalition took power in 1998.33 The changes were intended to fix the problems and blind spots of the original constitutional text.34 Many of these changes were, to a large extent, a reaction to the previous era of illiberal democracy in Slovakia, and most of the imposed amendments that affected the position and powers of the president were adjusted in such a way that the presidency became better suited for the model of a president in a classic parliamentary regime. In contrast, one of the most important constitutional changes introduced the direct election of the president. It was in fact not conceived of as a way to increase presidential power but was actually a reaction to the situation in which the parliament repeatedly failed to elect a new president given the political disputes of 1998 and the strict (and rigid) constitutional conditions regulating the presidential elections. As a result, Slovakia lacked a president for more than a year (from early March 1998 until June 1999) (cf. Spáč, 2013: 125; for details see Chapter 6). Later, a number of constitutional amendments were adopted (see Chapter 3). The aim of these changes was to give further precision to relationships among major bodies of legislative and executive power as well as to make the workings of the Slovak democratic regime more efficient. 2.1.6  Czech Republic and Slovakia: what tradition and why? Although in the twentieth century the Czech Republic and Slovakia were intertwined in a single state for more than six decades, their current constitutional systems are not identical, and they both stem from slightly different constitutional traditions. In the Czech Republic, it is clearly the tradition of the First Czechoslovak Republic, a tradition that manifests itself in both symbolic and real terms. The preamble of the 1992 Constitution clearly recalls the tradition of Czechoslovak statehood. In addition, in their speeches Czech politicians frequently make allusions to the legacy of the First Czechoslovak Republic as a model to adhere to, which does not necessarily equate with them actually behaving according to these admired principles in political practice. Yet the main and most visible element of the Czech

36   Origins and developments constitutional tradition is the position of the president. This tradition is, and always has been, controversial. Having its origins in the Austro-­Hungarian period, the presidency was subsequently strengthened after 1918 and maintained even during the Communist period of 1948–1989. In fact, it has created a discrepancy between form and content, notably in that the Czechoslovak and Czech constitution makers have never constituted the president as a ruling part of the executive. All of the historically relevant constitutions in this respect codified the president as a more or less symbolic head of state whose task was not to govern but to represent the country at home and abroad. In reality, however, Czech presidents have almost always possessed some political and even moral influence, which in turn has allowed them to exceed the regulations as defined by the constitution. This additional political and moral leverage has mostly depended upon political and other pertinent (social, psychological) conditions. We can therefore conclude that the Czech constitutional and political tradition is not only the specific position of the president as such but also the discrepancy between the way in which the constitutional system is constructed and how it works in constitutional and political practice. This pattern has been clearly witnessed in all of the modalities of the state established throughout the twentieth century, including that of the Czech Republic. Other elements of continuity that can be traced in the Czech case are undoubtedly the parliamentary form of government, the consensual (Lijphart) form of the Czech democracy (at least to a certain extent) and the weakness of the executive power in favor of legislative power. These matters are again of “Czechoslovak origin,” but they nevertheless result from Czech political developments after 1989 as well. For example, the “non-­rationalization” of Czech parliamentarianism and the few and unsuccessful efforts to overcome it are clearly the result of the political situation as it has emerged over the past two decades. The Slovak case is different due to the fact that it has been influenced by the complex relationship between Slovaks and their own history (Czechoslovakia, the wartime Slovak Republic, the problematic semi-­democratic period of the 1990s and also other political and social conditions). Generally speaking, Slovakia did not want to build on the Czechoslovak traditions and could not build on the “fascist” tradition of the wartime Slovak Republic, even if some radical political groups would have welcomed it. The current constitutional system of Slovakia is largely determined by an effort to overcome the legacy of Mečiarism. The original “Czechoslovak” parliamentary foundations were modified at the turn of the millennium, and we can say, with a degree of exaggeration, that the Mečiarism of the 1990s eventually contributed to the development of Slovak democracy, and the defeat of Mečiarism helped establish the current form of the Slovak constitutional system.

2.2  Poland History plays an extraordinarily strong role in Polish politics. For example, Polish political scientists and sociologists of politics point to the fact that socio-­ economic issues affecting political partisanship, which are so important in

Origins and developments   37 Western Europe as well as in the Czech Republic and Slovakia, are of much less importance in Poland, in terms of both political parties and their voters. Values-­ based and cultural-­political concepts of the Left‒Right political axis are predominant in Poland (Antoszewski, 2012; Grabowska and Szawiel, 2001; Markowski, 2002). Does this peculiar phenomenon manifest itself at the level of the Polish constitutional and political system? Yes, but it depends on what is meant. 2.2.1  First “Rzeczpospolita” Poland is proud of its great tradition of constitutionalism. It is well-­known, in fact, that Poland was the first country in Europe, and the second in the world after the US, to adopt its own modern constitution on May 3, 1791.35 This constitution was based on Jean J. Rousseau’s ideas of popular sovereignty and Charles L. Montesquieu’s ideas on the separation of powers.36 The constitution introduced a system resembling the contemporary European concept of parliamentary regime and contained a number of elements that came to form integral parts of contemporary parliamentarianism. The authors of the constitution found inspiration mainly in the English constitutional monarchy. Ideologically, it was a compromise between Enlightenment ideals and internal and international political realities, which can be seen as an effort not to irritate neighboring absolutist powers. The constitution was reformist in nature, but moderate and in no way revolutionary. It attracted great national and international attention, being released in the then-­high circulation of tens of thousands of copies. It was read in churches and translated into many languages (Ajnenkiel, 2001: 57). However immediately upon its adoption a dispute flared over its quality and importance, which has essentially lasted until the present day (Bardach, Leśnodorski and Pietrzak, 2001: 317–319; Fiszman, 1997; Graczyk, 1997: 13–17; Grodziski, 1998: 193). The tradition of the Constitution of May 3 is truly impressive. However, its role in the development of Polish democracy and constitutionality after 1989 was basically limited to only a historical and psychological symbol (May 3 is a national holiday in Poland). It became a site of symbolic heritage for the state, which had tried to correct its inefficient political system for the sake of its own salvation even before it fell to occupying powers (Austria, Prussia and Russia) and then disappeared from the map of Europe for more than 100 years (1795–1918). In regard to its specific provisions and form of government, there were almost no possibilities for its implementation after 1989. The constitution was adopted more than 200 years ago and met contemporary conditions that were in no way transferable to the present.37 We could talk about certain traditions of parliamentarism, but then only in general or at a symbolic level, not at the level of specific provisions.38 We could talk about the tradition of some institutions, primarily the Sejm and the Tribunal of State, but again only in symbolic rather than practical terms.39

38   Origins and developments 2.2.2  Second Republic In a similar way, although for other reasons, the Polish constitutional heritage of the Second Republic (1918–1939) presents another problematic situation. In this context, however, we see a dramatic difference between Poland and Czechoslovakia. Unlike interwar Czechoslovakia (1918–1938), which had only two constitutional texts (the provisional 1918 Constitution and the proper 1920 Constitution), Poland was characterized not only by complex constitutional and political transformations (one provisional constitution and two proper constitutions) but also by an entire political system that had been altered from democratic to authoritarian. Whereas there is no doubt that the Czech Republic followed the constitutional traditions of the First Czechoslovak Republic, this pattern was impossible to mimic in Poland because the democratizing state could hardly carry on the tradition of the undemocratic period after 1926. Interwar Poland saw three constitutions: those of 1919, 1921 and 1935. The first so-­called Little Constitution was provisional and truncated. Formally, it was just a resolution passed by the Sejm consisting of only two articles (Uchwała, 1919), yet it established an extreme variant of the parliamentary regime modeled on the Third French Republic (Nałęcz, 1994: 12). It codified the supremacy of the Sejm, with all of the top state bodies accountable to it, i.e., it was the head of the state (the chief of state, Naczelnik Państwa) and of the government headed by the prime minister. It is important to note that political practice differed significantly from the provisions of the Little Constitution. In fact, the position of the Sejm was diminished in favor of the head of state Józef Piłsudski (Kubát, 2006: 44).40 In contrast, the March Constitution of 1921 was already a “normal” constitutional text in terms of both its form and content (Konstytucja, 1921), which is not to say that the constitution was a success. It was certainly “democratic,” “social” and “liberal,” but it was also not effective to any meaningful degree (Graczyk, 1997: 34). The weakness of the executive and the superiority of the Sejm, supplemented by the fragmentation and polarization of the party system, led to the instability and inefficiency of the parliamentary regime as well as of the entire state. After the May Coup (1926), the constitution was amended to strengthen the executive (especially the president) at the expense of the legislative branch (Ustawa, 1926). However, the adoption of this August amendment did not result from any attempt to remedy a dysfunctional parliamentary system but was rather a manifestation of the emerging authoritarianism. The authoritarian system reached its peak in 1935 when the April Constitution, which demonstrated a stark break from its predecessor, was adopted in a format that was as “short and terse as a military order” (Falandysz, 1997: 9). It was a typical product of the then crisis faced by parliamentary democracy in Europe (Wawrzyniak, 1998: 46). In the text, the state was newly understood not as representative of the people but as a tool for the common good of all citizens, which is superior to that of individual persons. The principle of the separation of powers was replaced with the principle of uniformity of state powers, whose

Origins and developments   39 holder ultimately became an unaccountable president (Kulig, 2015); by Article 2, the president was responsible for the fate of the state only “before God and History” (Ustawa Konstytucyjna, 1935), and all constitutional authorities were subordinated to the president. The sovereignty of the people, in the sense of full-­ fledged citizens, was represented by the sovereignty of the president (Kubát, 2006: 59). Nevertheless, this constitution was not respected in practice. According to the constitution, the president was the most powerful man in the regime, whereas in reality he was only the second most powerful because the real power was in the hands of a dictator – the General Inspector of the Armed Forces (First Marshal Józef Piłsudski and later Marshal Edward Rydz-­Śmigły). The president merely exercised the will of the dictator. 2.2.3  Polish People’s Republic Whereas the interwar (and pre-­partition) period has become a source of current political and constitutional inspiration, although only in symbolic and rhetorical terms, this cannot be said to have applied during the period of Communist Poland (1944–1989). At present, the Polish People’s Republic is considered a non-­sovereign state (Paczkowski, 1999) whose constitutional foundations are perceived as alien to Polish traditions. The aforementioned first provisional Little Constitution, adopted in 1947, formally continued the tradition of the democratic constitution of March 1921, while also reflecting the Soviet model (Skrzydło, 1999: 51–52). This constitution confined itself to the functions of supreme state authorities and the relations established among them. At the same time, in purely formal terms, it can be considered as having provided some elements for a parliamentary republic, including the principle of separation of powers (Ustawa Konstytucyjna, 1947); however, such constitutional arrangements remained formalities, with the Sejm being defined as the highest body of state power; this implementation was a direct affront to an actual separation of powers (Czarny, 2007: 62–63). On top of that, such formal clauses were not respected in practice (Kallas, 2003: 425). Through­ out the period from 1944 to 1989, the center of power in the country shifted from constitutional institutions to the Communist Party leadership, especially when we consider that most of the first secretaries, who in fact ruled the country during the Communist era, had no constitutional functions (Mołdawa, 1991: 248–260).41 Whereas the Little Constitution of 1947 was at least conventionally and symbolically traceable to the democratic and constitutional traditions of the 1920s, this was not in the case with the “Stalinist” Constitution of July 1952, which radically broke with all Polish constitutional traditions dating back to 1791. Although its preamble invoked the “traditions of the Polish Nation,” the text was in actuality an ideologically distorted form of the nation – the “working” nation with “progressive” traditions (Słomka, 2015: 14) – clearly copying the Soviet Constitution of 1936 (Wawrzyniak, 1998: 46, 50).42 Based on the Marxist-­ Leninist theory of state and law, the constitution was highly dogmatic, and its

40   Origins and developments guiding principles were rooted in the government of “working people of urban and rural areas,” worker‒peasant unity, the leading role of the Communist Party and the Socialist principle of legality among many others (Skrzydło, 1999: 57–59). Regarding the definite functioning of the constitutional system, the key principle was the uniformity of state power, which was applied in place of the liberal democratic principle of separation of powers. The bearer of all powers was formally the unicameral Sejm, from which other top state institutions were devolved. Following the Soviet model, the individual head of state (president) was replaced with a collective head of state – the State Council. The constitution still preserved the Tribunal of State on paper, though this was not established in practice (Konstytucja, 1952; Kubát, 2008: 25). The Constitution of 1952 was later amended numerous times.43 The most important amendment was passed in 1976; among other things, it proclaimed the victory of Socialism in the country and transformed Poland from a “people’s democracy” into a “Socialist state.” Furthermore, the amendment constitutionalized the leading role of the Communist Party and set the principles of foreign policy based on an alliance with the Soviet Union (Obwieszczenie, 1976). In terms of constitutional institutions, the 1980s amendments are notable. In 1982, the Constitutional Tribunal (Constitutional Court) was incorporated in the constitution, thereby having limited power to assess the constitutionality of laws. In other words, its decisions were not final and could be reversed by the Sejm (Alberski, 2010: 128). Moreover, the “historical” Tribunal of State came to be enshrined in the constitution. The highest government officials were then constitutionally (not politically) accountable to this body. Another amendment, passed in 1987, introduced an element of direct democracy into the Polish constitutional order: referendum. Additionally, in 1987, an ombudsman (not a constitutional body, as it was established merely by an act) was appointed. These constitutional changes of the 1980s, however, did not reflect a democratization of the country. They only amounted to a very limited liberalization of an undemocratic regime. The new institutions began to be fully operational only after 1989 (Garlicki, 2002: 16). 2.2.4  Roundtable Talks and the making of the Third Republic The year 1989 was an important milestone in part because of the development of the constitutional system of Poland. The Polish transition to democracy occurred within a peaceful forum and was based on an understanding between state power and the anti-­Communist opposition. The symbol of this understanding became the Roundtable whose talks were the culmination of a process of transition to democracy and which had deepl-­rooted causes and far-­reaching consequences. At the end of the 1980s, state power gradually saw the situation in the country move beyond its control. Widespread strikes that erupted in the spring and summer of 1988 significantly contributed to the undermining of Communist power. At that point, the highest state officials realized the hopelessness of the situation and began to negotiate with the opposition. The first unofficial contacts between the representatives of the government and the opposition took place in

Origins and developments   41 1988. On the official level, the talks between the government and the opposition began slightly later, in February 1989. Both negotiating groups had completely different ideas in regard to the future direction the political system should take. The aim of the Communists was to reform the Communist system in order to retain power. To achieve this, they attempted to gain legitimacy through a new agreement by which they would involve the opposition in the political system in such a way that the responsibility of governing would be apportioned between the two camps. They assumed gradual changes directed from the top. They primarily proposed the implementation of “non-­confrontational” elections (wybory niekonfrontacyjne) and the formation of a new constitutional position – that of president, who would have to defend their interests and who was supposed to be their representative. In contrast, the opposition did not have a clearly formulated plan when it came to the shape that the political system should have moving forward. It simply refused more or less cosmetic changes to the Socialist model, which would not bring a qualitative breakthrough. Above all, the opposition demanded the reformation of the state from the “bottom up,” through such steps as the introduction of independent courts, the restoration of local governments and so forth. From the viewpoint of the central constitutional institutions, the opposition’s key demand was the formation of the Senate as a second parliamentary chamber, or a chamber meant to counterbalance the “Communist” president (Trembicka, 2003: 49–60).44 The state authorities failed to enforce the idea of “non-­confrontational” parliamentary elections; instead, “semi-­competitive” elections were held in July 1989 (Małkiewicz, 1994). Yet even before that, in April 1989, their parliament passed the April Amendment to the Constitution of 1952 in which both sides managed to implement their ideas relating to the establishment of new constitutional institutions, although in terms of competences, the Communists assuredly achieved a better position. The Senate was created as a second parliamentary chamber, even though its powers were truncated because figures of state power assumed that, in the context of semi-­competitive elections, the newly formed Senate would become the domain of the opposition (unlike the Sejm elections, the Senate elections were fully competitive). In contrast, the president of the Republic, who replaced the State Council in the constitution, was equipped with relatively extensive powers. According to the agreements, the president was elected by both parliamentary chambers. In line with the agreements, Wojciech Jaruzelski, a Communist representative, was elected the first president. The constitutional amendments also affected the government, which was elected and removed by the Sejm and which was politically accountable to the Sejm and the president. The institution of ombudsman was freshly incorporated into the constitution since, in the past, the ombudsman had not been a constitutional body. The Constitutional Tribunal (Constitutional Court), although still not having the last word because its decisions were not final, had the power to interpret legal norms with binding effect (Kruk, 1998: 57–61; Ustawa, 1989a). The April constitutional amendments brought about significant changes in the organization of the supreme state authorities and allowed semi-­competitive

42   Origins and developments parliamentary elections to be held. However, the amendments did not present a major qualitative breakthrough for democracy as the resulting situation was temporary and unsustainable. Political development was inexorably moving forward, and it was necessary to adjust the constitutional framework. This goal was achieved by the December Amendments of 1989, which were more complex than those of April. This time around, the amendments did not take the form of piecemeal changes to the old constitution but rather signaled a fundamental qualitative reconstruction of the entire political system. The state’s name was changed from the Polish People’s Republic to the Republic of Poland, and the country returned to the historical national emblem (a white eagle with a royal crown on a red field). The ideological preamble was completely cut, and an adjustment was made to the constitutional concept of sovereign state for the benefit of the people towards the sense of considering the people as equal citizens (instead of as “working people”). The article on the leading role of the Communist Party was removed, and the rule of law ultimately became the major constitutional principle. The December Amendments additionally introduced full-­fledged political pluralism, put all forms of ownership on an equal basis and guaranteed the freedom of economic activity (Kruk, 1998: 57–61; Ustawa, 1989b). Despite these key changes, the Polish constitutional system was still determined by the hybrid constitutional text (considering the two amendments to the Constitution of 1952) that could hardly compensate for a “normal” democratic constitution. Following the constitutional amendments of 1989, the system combined elements of a political democracy based on the principles of a separation of powers with the remnants of the Communist principle of the uniformity of state power represented only by the Sejm (Bankowicz, 2000: 27). In addition, psychological and symbolic features of the whole constitutional process played an important role, since even after thorough constitutional changes the “Stalinist” Constitution of 1952 was still in force; notably, however, from the point of view of Poland’s political and constitutional traditions, this force was perceived as an alien element. This brings us to a certain paradox in this “alien” constitution that was “surviving” the transition to democracy and becoming an element of continuity between the old and new regimes as well as an of gradual evolutionary, not revolutionary, constitutional changes (Słomka, 2015: 17).45 The semi-­democratic political institutional framework established by the Roundtable agreements was supposed to be in force for six years. In fact, it survived approximately one year, primarily in respect to the political developments. In 1990, “Communist” President Wojciech Jaruzelski resigned. Following this, a constitutional amendment was adopted in September of that year allowing for the holding of direct presidential elections, which resulted in the election of the leader of Solidarity, Lech Wałęsa, as the new president. Wałęsa became a certain counterweight to parliament, which still lacked the legitimacy offered by completely free elections (the first free and competitive Sejm elections were held in 1991). Solidarity collapsed, and a period of fragmentation and polarization of the party system followed. These political circumstances did not allow for the

Origins and developments   43 early adoption of a new constitution, although such plans certainly existed.46 The historical tradition of the Little Constitutions was to become the path out of this situation. The third Little Constitution in the history of Poland was adopted in October 1992. It was the constitutional act on mutual relations between the legislative and executive powers and local government, at least compared to the previous period, that strengthened executive power at the expense of legislative power. This Little Constitution thus undermined the tradition of the constitutional supremacy of the Sejm. Becoming an important player in the executive branch, the president was still elected by direct universal suffrage and, along with the government, was an active part of the executive. The Little Constitution of 1992 also stabilized the executive branch by establishing the constructive vote of no confidence and defining the government formation process precisely and in detail in order to avoid more government crises. The positions of other constitutional institutions did not change (Chruściak, 2007; Czajowski, 1993; Ustawa Konstytucyjna, 1992). 2.2.5  Constitution of 1997 and discussions on its revision The Little Constitution, despite its temporariness, created mechanisms of power that were conducive to the stability and effectiveness of the democratic regime, although this constitutional text could hardly substitute for a formal and full-­ fledged constitution (Bankowicz, 2000: 31). The path to the new constitution, however, was very long, and its eventual approval only came in 1997.47 Poland, the pioneer of democratization in Central and Eastern Europe, paradoxically became one of the last countries in the region to adopt a proper democratic constitution. Discussions on the new constitution were turbulent (as was the debate that broke out throughout civil society), and the negotiations for it were complex. There were five major contentious issues: its value orientation; its design in terms of freedoms and individual rights with an emphasis on social rights; the structure of parliament; the relations between the main constitutional institutions (president/parliament/government); and local administration and self-­government (Gebethner, 1998: 39). Taking the topic from the perspective we are adopting, it is the structure of parliament and the relationships between the main constitutional institutions that come through as the major concerns. In the first case, discussions revolved primarily around whether parliament should be unicameral or bicameral. In the latter case, the debate, simply put, was interested in the question of whether Poland should move towards a French-­style regime with a dominant president within the executive or whether it should aim for a rationalized parliamentarism in which the government headed by the prime minister would play the decisive role (Gebethner, 1998: 54–65). The version strongly advocating asymmetrical bicameralism, in which the Senate was much weaker than the Sejm, eventually won the day. The president, alongside parliament, remained another representative of the people as he was

44   Origins and developments elected by direct universal suffrage. However, compared with the Constitution of 1992, his position was significantly weakened in terms of his competences. In contrast, the government headed by the prime minister retained a strengthened position within the executive and across the whole regime, especially in relation to parliament; meanwhile, the principle of the constructive vote of no confidence remained embedded in the constitution. The Constitutional Tribunal, on the one hand, lost its power to interpret legal norms in a mandatory way, but its decisions nevertheless became final, without the possibility of parliament reversing them (Antoszewski, 2012: 51–100; Konstytucja, 1997).48 The Constitution of 1997 is still in force, and it has remained almost unchanged.49 This does not mean that there are no debates about it. After 1997, a number of proposals for constitutional change were prepared, aiming for either complex or partial modifications. In addition, more or less specific objectives to amend the constitution were presented. In total, six brand new constitutional texts were proposed. Three were partisan – prepared by the League of Polish Families (LPR) Self-­Defense and the Law and Justice (PiS) parties, respectively, in 2004–200550 – and three were prepared by Ombudsman Janusz Kochanowski (in 2009). None of the constitutional texts, however, made it on to the agenda of parliament as a legislative initiative (Chruściak, 2015: 214). The parties’ constitutional drafts did not assume any major institutional transformation of the democratic regime. In contrast, the three Kochanowski proposals can be considered experimental because they presented very different conceptions of the constitutional system. The first proposal envisaged, among other things, a substantial weakening of the directly elected president and locating him/her outside the executive branch. Parliament was to be bicameral, but in a considerably amended form and with powers awarded to the Senate. The second proposal included, among other things, the abolition of the Senate, a significant weakening of the president (elected by parliament for a seven-­year term of office) and the strengthening of the government such that it would be able to issue decrees with the force of law between sessions of the Sejm. The third proposal, in contrast, assumed a government form that came close to a presidential regime with a directly elected president (for up to four years), who would be head of the government. Additionally, parliament was to be unicameral (Chruściak, 2015: 219–222). 2.2.6  Poland: what tradition and why? At the end of this treatise on the origins and development of the Polish constitutional system, we can again assert that, regardless of the lengthy and diverse traditions of Polish constitutionality, it is difficult to pinpoint any real contemporary application. An exception might be the specific (also in terms of international comparison) constitutional institution – the Tribunal of State. Its origins can be found as early as in the Constitution of May 3, 1791, while it reappeared in the Constitution of 1921 and existed until 1939. After World War  II, the Little Constitution of 1947 assumed its existence, but in practice it was not renewed

Origins and developments   45 and the “Stalinist” Constitution of 1952 was silent about it. The current Tribunal of State was reintroduced with the approval of the constitutional amendment in 1982, and it has existed ever since. It is an institution which government officials are accountable to where there is any violation of the constitution or the law in connection with the exercising of their functions. The problem lies in the fact that the Tribunal of State has rarely been active; its real impact is minimal, and its significance is rather symbolic and preventative (see Chapter 5). In no way can it be regarded as an institution that affects the political system (as opposed to the Constitutional Tribunal). The Little Constitutions of 1919, 1947 and 1992 may present another constitutional tradition. However, it is at most a procedural tradition, i.e., amounting to tools to bridge transitional periods, but without influence on the political system of the country. In this context, it is significant that Polish experts on the history of the constitutional and political system do not usually set about comparing all of the three Little Constitutions, and if they do, they rather restrict themselves to the study of their form (Ajnenkiel, 2001: 356–357; Kallas, 2003: 529). Therefore, if we are to talk about historical traditions in Polish constitutionality, it is possible to do so only in symbolic (e.g., the historical term “Sejm”) and declaratory terms. For instance, the current preamble of the Constitution of 1997 refers to “the best traditions of the First and Second Republic.” Yet what are these traditions and how are we to understand them? This is something we cannot learn from the constitution (Słomka, 2015: 15). Moreover, as Roman Graczyk somewhat sarcastically commented during the Polish constitutional debate heard in the 1990s, “Our current constitutional debate is full of appeals to history. It even gives the impression that the less parties can say about the new Constitution of 1997, the more they prefer recalling the history of the Polish Constitution” (Graczyk, 1997: 32–33). As is evident from the foregoing analysis, if we want to look for the real causes of the current form of the Polish constitutional and political system, we must look at events during more recent periods, namely the transition to democracy during 1988–1990 and the political development of the 1990s. It was precisely at that time that the Polish asymmetrical bicameralism, with an extremely weak Senate (as agreed at the Roundtable Talks), was formed. The direct presidential election was the result of a situation where the 1990 parliament was derived from the 1989 semi-­competitive elections, and at the central level there was no freely elected constitutional institution, the “Communist” President Wojciech Jaruzelski resigned and the leader of Solidarity Lech Wałęsa ran for the presidency. Extensive presidential powers were initially pushed through by the Communists because, according to the agreements between the state power and the opposition, it was their representative Wojciech Jaruzelski who was to be president. The Little Constitution of 1992 even strengthened these powers, which, among other things, resulted from the ambitions and pressure of Lech Wałęsa who wanted to be a ruling president. On the contrary, the Constitution of 1997 limited the powers of the president, partly in response to Wałęsa’s controversial presidency. The government, headed

46   Origins and developments by the prime minister, was strengthened (i.e., protected against the parliament) and stabilized by the Little Constitution of 1992 in response to the, politically speaking, extremely unstable, fragmented and polarized period of 1990–1993.51 The Constitution of 1997 retained the strong position of the government and prime minister to prevent such an unstable situation in the future. There are more examples. The foundations of the contemporary Polish democratic regime were thus rooted not in the “ancient” history of the First and Second Republics, and even less in the period of the Polish People’s Republic, but only in the period after 1989. *** A comparison of Poland, the Czech Republic and Slovakia confirms the differences one would expect to find between them. Poland may boast about a longer-­ lasting and richer pool of constitutional and political traditions than the Czech Republic and Slovakia. The Czech Republic and Slovakia are nowadays no longer an example of constitutional “twins,” though their constitutional origins are common; after 1993, Slovakia adopted a number of constitutional amendments that caused the Slovak constitutional system to diverge from the Czech one. Furthermore, the countries also differ in their approach to historical patterns and traditions. Their current constitutional systems, while based on a common parliamentary basis, are not the same. The Czech Republic differs from Poland and Slovakia in its somewhat archaic, “strongly parliamentary” parliamentarism, though it is modified by the specific position of the president, who was also strengthened by the introduction of popular elections in 2012. These findings confirm approaches introduced at the beginning of this chapter. None of the three constitutions is a “copy” of a foreign constitution. Conscious and deliberate designing of the constitutional system, in line with “optimal” constitutional principles guided by the imperative of efficient, just and democratic institutions, is not found in any of the three countries. Of course, this does not mean that foreign experiences have not played any role. Some elements of the rationalization of parliamentarism were naturally adopted from other countries. For example, Poland adopted the constructive vote of no confidence from German Basic Law. Unlike with foreign inspiration, path dependency and rational choice approaches were decisive in making the constitutions of the three countries. The path-­dependency approach is most visible in the Czech case where the Constitution of the First Czechoslovak Republic heavily influenced the current Constitution of 1992. In Poland, there was more or less an equal combination of both approaches. On the one hand, the path dependency approach is discernible in the transition to democracy in 1989, which significantly and factually influenced the Polish regime (historically older constitutional designs were taken symbolically and rhetorically). On the other hand, the constitutional system after 1997 was the result of complex political and professional discussions held in the 1990s. Elements of a rational choice approach can surely be seen in this context. The path dependency approach is probably least traceable in the current constitutional

Origins and developments   47 system of Slovakia. Although the original 1992 Constitution adopted a large number of elements of older constitutional texts, the constitutional amendments adopted after 1998 point to a greater relevance in the rational choice approach for the current constitutional text.

Notes   1 For more on the process of constitution-­making, see among others Beyme, 2001; Elgie and Zielonka, 2001; Elster, Offe and Preuss, 1998; Ludwikovski, 1993; Mathernova, 1992; Morlino, 2001; Teitel, 1994.   2 Yet some other approaches to the study of constitution making could be used as well: for instance, inspiration from abroad (Germany) and the rational choice perspective. As Petr Kopecký puts it, “The Czech Constitution … was a deal between parties with competing views which were informed as much by rational calculations as by the exigencies of the moment” (Kopecký, 2001b: 335). Still, institutional traditions were more influential than models adopted from other countries (Cabada and Štollová, 2014: 9; Kopecký, 2001a: 39; cf. Wiatr, 2016).   3 For example, instead of making a new institutional structure, debates in federal parliament were concerned with the name of the country. As a result, the so-­called “hyphen war” broke out when Slovak leaders demanded that the common state be spelled “Czecho-­Slovakia” instead of “Czechoslovakia” (Malová, 2001: 350).   4 For example, the concept of civil rights was borrowed from the Austrian model (Broklová, 1992: 23).   5 In particular, it was an extremely proportional electoral system that was drawn up for the elections of both parliamentary chambers (Chytilek et al., 2009; Novotná, 2004). The political system of the First Republic was, in Lijphart’s eyes, so “proportional” that he hailed it as one of the typical examples of consociational democracy (Lijphart, 1977: 33).   6 On the other hand, Masaryk held a certain skepticism towards the presidency (i.e., a form of monarchical rule by one man) (Bankowicz, 2015: 139). He feared its presumed incompatibility with democracy, but finally acknowledged its inevitability: “Any form of directorate would be in the letter compatible with democracy, but even if there were more presidents, one of them would inevitably have the greatest influence and authority” (Masaryk, 1938: 576).   7 According to some authors, the roots of this perception can be found in the worship of the Austro-­Hungarian Emperor and King Franz Joseph I (Rak, 2013). Indeed, Jan Kysela claims that Masaryk drew much inspiration from his predecessors – emperors. Notably, Franz Joseph I embodied the multinational state and its identity, and worked on integrating all nations (Kysela, 2008a: 235).   8 Term coined by Gordon Skilling (1970).   9 No matter the numerous Czech collaborative institutions that participated in it (Maršálek, 2002; Pasák, 1999). 10 Former Slovak President Ivan Gašparovič for example, said in an interview in 2004 that the Slovak State was “a proper state with proper government and international acceptance” and that “if the Slovak state had not arisen, Slovakia might have not existed today” (quoted in Mesežnikov, 2005: 41). 11 The Federal Assembly was designed with purely symmetrical bicameralism, where neither of the chambers could outvote the other. In addition, there was a ban on national outvoting, which meant that members of parliament elected in the Czech Republic could not override the MPs elected in the Slovak Republic and vice versa. In practice, however, this did not matter because the Federal Assembly passed its laws unanimously (Šimíček and Kysela, 2009: 318–319).

48   Origins and developments 12 The 1960 Czechoslovak constitution stated that the Communist Party is a “leading force in society and state” (art. 4). 13 In addition to the historical traditions, there were other reasons for maintaining the institution of the presidency. First, the regime sought to symbolically incarnate the leading role of the Communist Party and the state in one person. In other words, the aim of this move was to symbolize the links between the authority of the party and the state. Second, there was a pragmatic interest in appointing the Communist Party chief Klement Gottwald as president. This move was to symbolically accomplish the Communist coup in 1948. Third, the individual ambitions of Communist leaders to become head of state also played a role (Šimíček and Kysela, 2009: 323–324). 14 For more details on the Czech and Slovak history, including their transition to democracy, see Fawn (2000) and Henderson (2002). 15 Civic Forum was the most important nationwide anti-­Communist movement in the Czech part of the federation. It was established in November 1989, and it was later dissolved to open the way for more profiled political parties. 16 The first non-­Communist prime minister of the Czech Republic, Petr Pithart, recalled in his memoirs that he could not obey the federal constitution, which was completely unsuitable for the new democratic system. On the other hand, there was no Czech constitution to define the scope of his duties and abilities. Although he backed the policies of his cabinet, Pithart could hardly influence its composition. This was in line with the still valid constitutional principle of the unity of state power. The prime ministers still depended entirely on the Czech National Council, or rather, its presidium (Pithart, 2015: 283–286). 17 According to the memoirs of President Václav Havel, no one was willing to accept the task of writing a new constitution, so Havel took on the challenge himself (Havel, 2006: 93–94; see section below). 18 Needless to say, this conclusion does not apply to the political system as a whole. For example, the origins of political parties and party systems were laid down at that time. 19 These drafts, however, were not successful. 20 The 1991 draft constitution prepared by the expert team on the Czech National Council still served the 1992 government commission so as to formulate the final version of the Czech constitution, which was passed by the Czech National Council in December 1992. The 1991 draft constitution drew inspiration from constitutions of Germany, Austria, Greece, Spain and Portugal. It comprised some provisions of rationalized parliamentarism including the constructive vote of no confidence. Although the 1991 draft and the final version of the 1992 Constitution included many common features and formulations, it would be unwarranted to argue that the 1991 draft became a basis for the 1992 Constitution. Nevertheless, it seems plausible to say that the former helped speed up the finalization of the latter (for details see Filip, 2002). 21 The constitution was approved by the 200-member Czech Parliament, not by a referendum. All but two MPs were present for the vote. In total, 172 deputies voted in favor, 16 voted against it and 10 abstained from voting (Gerloch, Hřebejk and Zoubek, 2002: 77). 22 For example, as early as March 1990, a group of legal experts led by Juraj Plank composed the first draft of the Slovak Constitution (Malová, 2001: 349). 23 It comes as no surprise that some authors are highly critical of the constitution-­making process in Slovakia, which had not been (and could have not been) preceded by a truly lively public debate on the content and purpose of the constitution. Therefore, the constitution was imposed from above. It was a cabinet preparation of the constitution with “a communist cushioning” (Procházka, 2003: 49; cf. Kopecký, 2001a: 46). 24 MPs representing the Hungarian minority in Slovakia, in a sign of protest, did not participate in voting on the articles of the constitution regulating the rights of national and ethnic minorities (see Orosz, 2012: 38).

Origins and developments   49 25 Some political parties, including the Slovak Democratic Coalition (SDK) and the Party of the Hungarian Coalition (SMK), later favored the formulation of a completely new constitutional text given the fact that a large number of problematic provisions of the 1992 Constitution were not fixed (see Mesežnikov, 1998: 15 and 24). 26 Surprisingly enough, this statement also applies to voters of the Communist Party of Bohemia and Moravia (KSČM), the formal successor to the former Communist Party of Czechoslovakia (KSČ), which had a monopoly on state power from 1948 to 1989. Despite the Communist propaganda during this period, when interwar Czechoslovakia was negatively portrayed as a bourgeois state, the Communist party voters assessed the interwar period as highly positive as well as its first president Masaryk, who got an even better evaluation than Lenin and the Czechoslovak Communist leaders Klement Gottwald and Gustáv Husák (Kunštát, 2013b: 126–132). 27 For the sake of parsimony, it should be noted that Jan Kudrna, who argued that the perception of a strong influence that the 1920 Constitution came to have on the 1992 Constitution was highly exaggerated, challenged this prevailing view on the constitution. He claimed that in comparing the constitutional texts, “We found clear resemblance, but the concepts are not the same. Quite the contrary in many ways a special mixture of the 1920 constitutional text and the 1960 Constitution occurred” (Kudrna, 2013: 87). Kudrna even went further, claiming that it was “a myth that the Constitution of the Czech Republic results from the concept of the 1920 constitutional text. There are so many differences that together they make a completely new constitutional text” (Kudrna, 2013: 88). We argue that these disputes over the extent to which the 1992 Constitution resembles the 1920 Constitution are not essential. It is, however, beyond a doubt that the 1992 Constitution was clearly inspired by the 1920 Constitution. 28 Václav Havel, the Czechoslovak federation’s president (1989–1992), was not as commonly accepted in Slovakia as in the Czech Republic. One should not forget that the federal institutions did not enjoy much trust in Slovakia (Kopeček, 2008: 174–175). 29 The 1920 Constitution used the fiction of the Czechoslovak nation, which did not allow the Slovak nation to apply the right of self-­determination. The Slovak nation was in an unequal position (Cibulka, 2008: 332). 30 The Great Moravia, the state of the Early Middle Ages, existed on the current territory of the Czech Republic, Slovakia and beyond. 31 Petr Kopecký (2001a: 46) claims “circumstances surrounding the bargaining in Slovakia left more question marks as to whether in the future the Constitution will command sufficient respect and support from all political actors.” 32 In addition, there have regularly been (mostly academic) discussions about a potential (and desirable) shift of the Czech parliamentary regime towards a rationalized parliamentary regime that would take after the German model (Kysela, 2008b; Kubát, 2009). The authors of these ideas have sought to strengthen the government at the expense of parliament (the Chamber of Deputies). In this regard, the tool most often used to achieve the mentioned goal was the introduction of the constructive vote of no confidence. These academic ideas came close to political practice in 2012 when Petr Nečas’s cabinet passed a constitutional amendment that was to incorporate this mechanism into the constitution. Although, the amendment did not make it any further in the legislative process (e.g., Brunclík, 2012), discussions on the rationalization of the Czech parliamentary regime have regularly appeared since then (Kubát and Lebeda, 2014). 33 Slovakia’s Constitution has been amended 13 times so far (for the overview of amendments see Čič et al., 2012: 44; Orosz, 2012: 41–46). In addition, there have been numerous initiatives to amend the constitution. For example, an amendment to strip the president of his power to grant amnesty was proposed in 2013 (Drgonec, 2015: 45). 34 For example, the 1998 amendment was a direct reaction to the dilemma that no one existed to appoint a new cabinet or accept its resignation if the presidential office was

50   Origins and developments vacant. This act had to be transferred to another constitutional body. The constitutional amendment of 1998 transferred the power to appoint and accept the resignation of the government to the speaker of parliament (Orosz, 2012; Orosz and Šimuničová, 1998). 35 Here, we have in mind the constitution in the modern sense. Of course, various quasi-­ constitutions appeared earlier 36 It was “the people” who amounted to the bearer of sovereignty in the state. However, the constitution, although having abandoned the concept of people understood merely as the “noble people,” did not present the modern concept of “all the people” as a community of equal citizens. The nobility was still privileged. Only the position of the bourgeoisie improved. In contrast, the principle of the separation of powers was carried out in the classical sense, though not entirely consistently. Legislative power was vested in a bicameral parliament, executive power was placed in the hands of the king and the government, whereas judicial power was vested in courts. The inconsistency mentioned above resided in the fact that the constitution explicitly attributed the superior position to parliament at the expense of other supreme state authorities (Ustawa Rządowa, 1791). 37 In this context, it is useful to compare the 1791 Constitution with the US Constitution of 1787, which was also adopted a long time ago, was influenced by the era of its own origin and is still “alive.” However, unlike the US, Poland cannot exhibit an uninterrupted continuity of existence and development of statehood and democracy. In addition, the May 3 Constitution was in force for only one year (Graczyk, 1997: 34). 38 Just randomly, it is certainly not possible to apply the then conjunction of the head of state and the prime minister in contemporary Poland. It is possible to identify only the individual responsibilities of ministers, and there is consequently an absence of collective responsibility of the government, an absence of the competence of the head of state to veto laws adopted by parliament and an absence of the presidential power to dissolve parliament, etc. (Graczyk, 1997: 33). 39 Poland still uses its traditional name for parliament – the Sejm (the Lower Chamber of Parliament). The Sejm has generally played an important psychological and symbolic role in Polish history because, to a certain extent, it became the embodiment of Poland, of its independence (Ajnenkiel, 1975: 391). 40 Marshal Józef Piłsudski was the chief of state in 1918–1922. He was a specific head of state (not the president) that had the highest executive and legislative power on the basis of the Piłsudski Decree of 22 November 1918. He appointed a government that was accountable to him, and he also had the power to pass laws on a government proposal. The Little Constitution of 1919 formally deprived him of the power and subordinated him to the Sejm, to which he was politically accountable. The “normal” president was introduced by the Constitution of March 1921 (Kallas, 2003: 298–308). The special label of this function is of historical origin and carries on the Kościuszko tradition (Kościuszko was the Leader of the Uprising in 1794) (Ajnenkiel, 1997: 521). 41 The exceptions were Bolesław Bierut, who was president between 1948 and 1952 and prime minister between 1952 and 1954, and Wojciech Jaruzelski, who also served as prime minister between 1981 and 1985 as well as the state council chairman from 1985 to 1989 (Vykoukal, Litera and Tejchman, 2000: 830). 42 In spring 1952, Stalin himself personally brought about around 50 modifications in the draft of the constitution, some of which were factual in nature and some of which were stylistic (Kallas, 2003: 446). 43 Not, however, when martial law was declared in 1981. This “military coup” (Kallas, 2003: 440) or “legal coup” (Paczkowski, 1998: 83) did not alter the constitutional system, and that is why it was not a real coup d’état or even a self-­coup (Bankowicz, 2012: 11), although it dramatically changed the political reality. The self-­proclaimed Military Council of National Salvation, under the chairmanship of party leader and Prime Minister General Wojciech Jaruzelski, took power. “It is unknown how it was

Origins and developments   51 called up” (Friszke, 2003: 405) into action and assembled. The council was not responsible to anyone, and its competences were not clearly identified (Friszke, 2003: 405; Paczkowski, 2006: 40–41). In addition, General Jaruzelski summoned the “semi-­ secret” Directorate. This de facto body replaced the central authorities of the Communist Party (Dudek, 2004: 47; Paczkowski, 2006: 67). Both institutions (and some others) were not backed by any valid legal norm. Formally speaking, therefore, there was a kind of dual power, which resided in the co-­existence of de jure civil institutions and de facto institutions of military power. In practice, however, the soldiers had the upper hand. Martial law was lifted in 1982 and was finally abolished in 1983. 44 The range of outcomes of the Roundtable Talks was far more extensive than the space allows us to examine here, including not only issues concerned with political issues but also with socio-­economic and cultural matters among others (Trembicka, 2003). 45 One could note that Hungary experienced a similar situation. In 1989, the “old” 1948 Communist Constitution was significantly amended, but it was not until 2011 that a completely new constitution was adopted. However, the new constitution was passed under entirely different circumstances, which are not related to the democratic transition. 46 The plan was to purposefully adopt the new constitution on May 3, 1991, i.e., on the 200th anniversary of the first Polish Constitution, adopted in 1791 (Bankowicz, 2000: 30). 47 The constitution was first adopted by the parliament in April 1997, and then a referendum took place in May in which the constitution was approved by a narrow majority of 52.7 percent with the participation of only 42.86 percent of voters (Piasecki, 2005: 27–47). The constitution then took effect in October 1997. 48 Current debates about the Constitutional Tribunal, which relate to the controversial new law on the Constitutional Tribunal adopted in July 2016, are concerned with its internal functioning. The Constitutional Tribunal’s position has nevertheless remained unaltered. www.polityka.pl/tygodnikpolityka/kraj/1667754,1,sejm-­uchwalil-nowa-­ ustawe-o-­trybunale-konstytucyjnym-­oto-10-jej-­najwazniejszych-zalozen.read 49 The only two changes were adopted in 2006 and 2009, respectively. The first introduced the possibility of extradition of Polish citizens to criminal prosecution abroad by incorporating European arrest warrants into the constitutional order (art. 55) and the second restricted passive suffrage for elections to parliament with the condition of a clean criminal record (Chruściak, 2015: 213). 50 Law and Justice introduced another constitutional draft in 2010, which, however, did not differ much from the one presented in 2005. 51 It is worth recalling that in the 1991 Sejm elections, 29 groupings obtained parliamentary seats and the largest party controlled only 12 percent of the votes and 13 percent of the seats (Żukowski, 1992). In 1993, early elections were held. Between 1989 and 1993, Poland had as many as four prime ministers and governments (Kubát, 2005: 63).

3 Formal presidential powers

In the previous chapter, we provided an overview of the constitutional developments of the Czech Republic, Poland and Slovakia, including the historical traditions that influenced this development. In this chapter, we focus exclusively on the formal powers retained by the presidents in the three countries, i.e., we are concerned with powers that are enshrined in the constitutions1 which thereby create general institutional frameworks in which the presidents may act. We also inquire into constitutional amendments (and factors that led to them) that were designed to eliminate or at least reduce the flaws and ambiguities of the constitutional texts and which in turn affected the position and powers of presidents in the three countries. We examine Central European presidents as part of the executive. Given the complexity of presidential powers, we analyze and quantify them on the basis of our typology of presidential powers. The typology was derived from the earlier works of Shugart and Carey (1992) and Metcalf (2000), but we adapted it to the specifics of the Central European presidency. As a result, we divide the presidential powers on the basis of two criteria: the area in which the powers are applied, which yields two groups of powers (legislative and non-­ legislative); and the degree of independence in using the powers, giving three groups of powers (independent, contingent and shared).

3.1  Central European presidents and separation of powers In all three Central European countries, presidents are an important part of their constitutional systems, which are based on the classic principle of the separation of powers. In all three countries, presidential powers belong to the executive branch. This means that Central European presidents are part of the executive power along with governments headed by prime ministers. In the Polish case, this was not always so after 1989, but according to the current 1997 Constitution, the Polish president is part of the executive power, which will be discussed further below. It should be emphasized that, with the exception of Poland in the early 1990s, presidents have never been recognized by the constitutions as real policy-­makers with enough powers to rule the country. In other words, Central European presidents are parts of, not heads of, executive power. Moreover, the

Formal presidential powers   53 presidents are parts of the executive power in only formal terms from a systemic point of view. This means that the “membership” of the presidents in executive power structures does not imply that presidents generally and independently exercise executive powers. The implementation of executive powers is the task of governments and prime ministers, i.e., the chief executives and major policy-­makers. Presidents are not significantly involved in real power politics and decision-­making on policies, nor are they expected to be. Still, they have two major roles. First, presidents act as “arbiters” within the system of separation of powers, having tools to check and balance the power of the government and parliament. Second, in being heads of state, their role is also representative, symbolic and ceremonial. The very fact that all Central European presidents are a component of the overall scope of executive power does not necessarily mean that their position is the same, just as the development of their constitutional status was not the same, and in certain scenarios, we can see critical discussions about it. As far as the Czech Republic and Slovakia are concerned, the constitutions do not explicitly declare the president to be part of the executive branch, but the president is still formally included in the constitutional chapter regulating executive power. The very fact that the president is included in the constitutional chapter on executive power has often been criticized or questioned, notably in Slovakia (Bröstl et al., 2015; Cibulka, 2008; Kresák, 1996; Nikodým, 2012; Orosz, 2013). The reason for the inclusion of the president in compositions of executive power lies in an effort to highlight the division of power within the constitutional system (Orosz et al., 2009: 115–116). However, parliamentary regimes have traditionally been described with a great deal of overlap between executive and legislative powers (Bagehot, 1867). Kresák (1994: 320) points out that from the inclusion of the president in executive powers, it may be inferred that the president and the government share executive powers and that both are subject to the control of the National Council in the sense of accountability. Orosz (2009: 45, 115–116) argues that the role of the head of state in parliamentary regimes is not exclusively constrained to executive powers. The inclusion of the president in the executive branch of power is usually explained by the idea of the mutual influence and the coordination of the government and the president. This interpretation was also confirmed in one of the rulings by the Slovak Constitutional Court: “Although the both parts of the executive in the Slovak Republic (president and government) are separated, they co-­ operate at the same time and they are mutually interlinked through joint execution of their constitutional competences” (Ústavný súd, 1996a). Another frequently discussed problem, notably in Slovakia, was that the constitution does not establish any form of subordination between the two institutions (Kanárik, 2009: 232), although both constitutions identify the government as the decisive body of the executive. In the Czech Republic, the government is labeled “the highest body of executive power” (art. 67). Similarly, in Slovakia the government was defined as “the highest body of executive

54   Formal presidential powers power” (Kresák, 1994: 320). This adjective caused interpretational difficulties in Slovakia,2 and thus the original term “highest” was replaced with “supreme” in the 2001 amendment (art. 108). The constitutional status of the Polish president underwent a different development than in the case of the Czech Republic and Slovakia, an outcome related to the more complex constitutional development of the country. The president first appeared in the 1989 April Amendment of the Constitution of 1952 when this position replaced the State Council as the collective head of the state formed in line with the Soviet model. However, the inclusion of the president in the system of constitutional institutions has resulted in no significant consequences for the constitutional system because the amendment did not explicitly enshrine the principle of the separation of powers. This principle was gradually emerging in the Polish constitutional system, based on other constitutional amendments and laws (Mojak, 1995: 94). After the April Amendment of the Constitution, the principle of the supremacy of parliament over all other constitutional bodies, namely its first chamber, the Sejm (Wawrzyniak, 1998: 58), was formally maintained. From this point of view, it is pointless to speak of the president as part of the executive branch. In fact, the president took over the position of the former State Council, which also corresponded to his formal inclusion in the list of constitutional institutions, right behind the Sejm, which came first (Ciapała, 1999: 21). The 1989 December Amendment to the 1952 Constitution, unlike the rather “technical” April Amendment, was a real breakthrough for democracy (Kubát, 2006: 142), but it did not significantly affect the position of the president because the structure of the constitution, with the inclusion of the president in the system of constitutional institutions, remained unclear. Indeed, the president was not actually defined as a “state body”, but rather was positioned as “the highest representative of the Polish state in internal and international relations” (art. 32). Hence, some Polish authors infer that the president was to be the “head of the state,” which might consequently lead to deductions on his real (not formal) inclusion in the executive branch of power (Mojak, 1995: 95–96). In any event, in 1989–1992 the institution of the president was “very complex, diverse and unspecified” (Ciapała, 1999: 24) and corresponded neither to a ruling nor to a representative presidency. The institution of the president “was undetermined, underdeveloped and incoherent” (Ciapała, 1999: 26). The situation was only significantly changed by the so-­called Little Constitution of October 1992, whose Article 1 clearly stated that the State organs of legislative power shall be the House of Representatives and the Senate of the Republic of Poland, executive power shall be the President of the Republic of Poland and the Council of Ministers, and judicial power shall be independent courts. Here we can clearly see the principle of separation of powers and the systematic inclusion of the president in the executive branch. In the same way as the April

Formal presidential powers   55 Amendment of the 1989 Constitution, Article 28 stated “The President of the Republic of Poland shall be the supreme representative of the Polish State in internal and international relations,” Article 10 of the Constitution of April 1997 states that 1) the system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. 2) Legislative power shall be vested in the Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and the judicial power shall be vested in courts and tribunals. The president is clearly positioned in the executive branch, but, unlike previous constitutional amendments, his position is weaker because he no longer stands as the highest representative of the state in internal and international affairs. Instead, he is “the supreme representative of the Republic of Poland and the guarantor of the continuity of State authority” (art. 126). This weakening of the president is not only formal but also real, as we show below.

3.2  Classifications of presidential powers Political science literature offers a variety of different classifications of presidential powers (e.g., Frye, 1997; Metcalf, 2000; Shugart and Carey, 1992). Despite a number of inherent problems with these measures, which are themselves plagued by insufficient validity and reliability (Doyle and Elgie, 2016), they are generally accepted and widely used in various comparative studies. In this chapter, we offer our own measurement of presidential powers tailored to presidents in Central Europe. From the very beginning, we wish to emphasize that we consider this and other measures to be only auxiliary tools to analyze and compare presidential powers. We regard them as secondary to a thorough qualitative analysis of presidential powers embedded in the constitution. Our measure, which is strongly influenced by the aforementioned scholars, uses two intersecting criteria: (1) the degree of the president’s independence using their powers and (2) an area to which the competences relate. The first criterion takes account of the fact that carrying out their powers may not always be independent. Quite the contrary, the execution of powers may be highly constrained. Hence, this idea leads us to divide the presidential powers into three types: truly independent powers, shared powers and contingent powers. As far as the first criterion is concerned, truly independent powers are those that (a) do not require a countersignature from the prime minister or any other government minister and (b) are not conditioned by acts of other actors or by the occurrence of specific events in line with other constitutional provisions. This is important to emphasize since, in constitutional terms, presidential powers can be divided into two major formal categories. First, some powers are designed to be

56   Formal presidential powers independent presidential powers, which may be carried out without the countersignature3 of the prime minister or a minister. However, in some cases the president’s independence (discretion) is largely limited by other constitutional articles (as well as by political circumstances). Thus, in practice, these powers are not as truly independent as they might seem from a superficial reading of the constitutional texts. Instead, the act of a president must be preceded by a step (decision) from another body or the president might be limited to only acting under certain circumstances. Hence, we regard these powers as contingent powers, i.e., powers conditioned by other circumstances, which means that presidential independence and discretion is significantly constrained. Second, some presidential powers need to be countersigned by the prime minister or a member of the government authorized by the prime minister. In these scenarios, the government is responsible for presidential acts. Thus, the shared powers are those powers that require the countersignature of the prime minister or a government minister. In this context, presidential freedom is constrained by the government or even by other circumstances. The second criterion is very traditional, and we borrow it from previous ways of measuring presidential powers (Metcalf, 2000; Shugart and Carey, 1992). The criterion divides the presidential powers into two types: legislative and non-­ legislative. By combining the two criteria, we get the following typology: Table 3.1  Typology of presidential powers Independent legislative powers

Independent non-legislative powers

Contingent legislative powers

Contingent non-legislative powers

Shared legislative powers

Shared non-legislative powers

Source: Own typology.

At this point, it is necessary to specify what we mean by “legislative” and “non-­legislative” powers. We present the following list of powers retained by presidents. 1

2

Legislative powers a Veto power b Referring bills to the Constitutional Court c Addressing parliament d Referenda e Ratifying international treaties f Legislative initiative Non-­legislative powers a Appointing prime minister and government ministers b Dismissing prime minister and government ministers c Chairing cabinet meetings d Dissolving parliament

Formal presidential powers   57 e f

Appointing judges of Constitutional Court Appointing members of central bank

It should be noted that our list of powers is not comprehensive. There are other powers which are, however, significantly less relevant from the point of view of the position of power of the president. Other powers relate to the appointment of various state officials as well as to various ceremonial acts and also to rather non-­political acts like the granting of mercy and amnesty, conferring decorations and state awards, the appointment of university professors or army generals, etc. They vary from country to country, and they are not subject to the analysis and measurement of presidential powers. Therefore, we include only those powers that we deem crucial and imperative in the context of the logics of Central European regimes while also referencing the use of these powers in practice (see Chapter 4).4 Legislative powers primarily concern the president’s participation in the legislative process, including announcing a referendum. Non-­legislative powers relate to other constitutional institutions, especially to the government. These powers usually include the appointment of various state officials. One of the most important powers in this area is the appointment and removal of the prime minister and government ministers.

3.3  Presidential powers in Central Europe In this section, we provide an overview of presidential powers in Central Europe in line with the measurement presented above. We provide an overview of the six listed categories of presidential power for each country separately for the predominant reason that, despite similarities (especially between the Czech Republic and Slovakia), each constitution endows its president with a different portfolio of capabilities. As explained above, the following account of presidential powers is far from complete. We discuss only those powers we consider to be significant for the position of the presidents in their constitutional systems. These powers are subject to a measurement of the overall presidential score below.5 3.3.1  Independent legislative powers Czech Republic The most important legislative power of the president is the legislative veto. The president may veto bills, with the exception of constitutional amendments and bills on the state budget, within 15 days of their submission to the president. His veto can be overridden by the absolute majority of all members of the Chamber of Deputies (the Senate is not involved in this matter). The president is obliged to add his comments on the bills that are vetoed (art.  50). Also, the president may independently refer bills to the Constitutional Court. In addition, the president may take part in meetings of both parliamentary chambers, including their committees and commissions. Commissions are

58   Formal presidential powers special parliamentary bodies. The Rules of Procedure of the Chamber of Deputies mention three types of commission the Chamber is allowed to set up: 1 2 3

Commissions established in line with the Rules of Proceedure Commissions established on the basis of laws Commissions established in line with the Constitution (Rules of Procedure, 2018).

He also has the right to speak whenever he submits such a request (art.  64). Finally, the president may ask the Constitutional Court for a decision on the conformity of a negotiated international treaty (art. 87; art. 88; Law, 1993). Slovakia Like the Czech president, the Slovak head of state is rather weak in terms of legislative powers. The president has neither decree powers nor the power of legislative initiative.6 Thus, the most important legislative power of the president is his veto power. In the same scenario as the Czech Republic, the president may veto bills within 15 days of their submission to the president and is supposed to comment on the bills that are vetoed (art. 102, 87). Likewise, the National Council has the power to override the veto by the absolute majority of all MPs. The constitutional provisions regulating the presidential veto were subjected to changes in Slovakia. In the original constitutional text, the president could veto not only ordinary but also constitutional legislation (Bröstl at al., 2015: 252). The presidential veto could be overridden by a majority of present MPs. The presidential veto of constitutional bills could be overridden by the minimum of a 60 percent majority. This threshold did not result from the constitution, but it was a part of the National Council’s standing orders (Horváth, 2005: 19). Besides this, the president was also, interestingly, obliged to veto a bill upon the government’s request. This provision probably appeared in the constitution as compensation for the prime minister, whose veto power was dropped from the government draft of the constitution (Orosz and Šimuničová, 1998: 58).7 The 1999 Constitutional Amendment removed this provision from the constitution, as well as the right of the president to veto constitutional bills. The amendment also requires that in order to override the veto of the president, an absolute majority of all MPs must vote against the veto (art. 84). The Slovak president also has the right to independently refer bills to the Constitutional Court (art. 125). Originally, the Slovak president had the right to be present at meetings of the National Council (art. 102), and he was supposed to present reports on the state of the Slovak Republic and on important political issues to the National Council. Moreover, he had the right to submit draft laws and proposals for other measures. However, the president lost these powers with the 1999 Constitutional Amendment (Bröstl et al., 2015: 271), with the exception

Formal presidential powers   59 of presenting reports on the state of the Slovak Republic to the National Council (art. 102). The president is also endowed with the power to ask the Constitutional Court for a decision on the conformity (to the constitution or to a constitutional law) of a negotiated international treaty (art. 102). In addition, the Slovak president has been able to ask the Constitutional Court to decide on whether the subject of a referendum is in conformity with the constitution or a constitutional law since 2001 (art. 95). Finally, in line with the Slovak Constitution, the president represents Slovakia externally, and he has the right to negotiate and ratify international treaties.8 The president may transfer the power to negotiate international treaties to the government (art. 102). Poland There are four significant independent legislative powers of the Polish president. The first is a legislative initiative that has been embedded in the Polish constitutions since 1989: the president may independently submit proposals to parliament. Second, the president has the power to veto a bill passed by parliament, which is a power that also appeared in 1989; however, the quorum needed to overturn the presidential veto was changed. While the previous constitutional norms (1989, 1992) declared that a majority of two-­thirds of Sejm members was needed to override the veto, the Constitution of 1997 states that a three-­fifths majority of Sejm members, with the presence of at least half of MPs, is required to defeat the veto (art. 122). In addition, the president is not allowed to veto a bill on the state budget. Third, the president may refer a law passed by parliament to the Constitutional Tribunal, which is supposed to assess the constitutionality of the respective law. Uniquely, this power has not changed over time. Fourth, the president has the power to address speeches to (both chambers of ) parliament, which are, however, not subject to parliamentary debate (art.  140). This power appeared in the Little Constitution of 1992 and was also included in the valid Constitution of 1997. 3.3.2  Contingent legislative powers Czech Republic In the Czech Republic, we find no power that would fall within the scope of our typology and which would be subject to measurement. Slovakia There is in fact only one such power: the president may declare a referendum. However, the president shall do so only on the basis of a petition of at least 350,000 citizens or upon a resolution from the National Council (art. 95).

60   Formal presidential powers Poland In Poland, there is only one – very limited – contingent legislative power: the decree. The president may, at the proposal of the government, issue decrees with the power of law, but only under two conditions that must occur simultaneously: in the situation of a declared state of war and when the Sejm is unable to meet. All these decrees must be approved by the Sejm at its next meeting (art.  234). This power was incorporated into the Constitution of 1997. However, it is such a specific power that it cannot be added to the ordinary powers of the president since a war is not a situation where “normal” constitutionality and politics work.9 3.3.3  Shared legislative powers Czech Republic This type of power is above all related to foreign policy. The Czech Constitution describes the presidential powers pertaining to foreign policy as follows: the president represents the state externally and is allowed to negotiate and ratify international treaties. The constitution also allows the president to delegate the power to negotiate international treaties to the government. In all these areas, the president’s decision requires the countersignature of the prime minister or a government minister (art. 63). Slovakia In Slovakia, there is no such power. Poland There are two shared legislative powers of the Polish president that we take into account. First, the president may ratify or denounce international treaties (art.  133). This power is accompanied by the countersignature of the prime minister and has been enshrined in all constitutional norms since 1989. Second, the president has the right to order a nationwide referendum, which may be summoned by the president with the consent of an absolute majority of senators (art.  125). This authority appeared in the Little Constitution of 1992 and was later adopted unchanged in the Constitution of 1997. 3.3.4  Independent non-­legislative powers Czech Republic The Czech president has the power to take part in cabinet meetings, though not to chair them, and to ask for reports from the government and its ministers. He is

Formal presidential powers   61 also allowed to discuss with the government and the ministers those issues that fall within their competences (art.  64). The president may additionally appoint members of the Banking Council of the Czech National Bank (art. 62). Slovakia The original Slovak Constitution allowed the president “to be present at meetings of the Government of the Slovak Republic, to chair them, and to demand reports from the Government or its members” (art.  102). However, following constitutional changes in 1999, the president has become weaker in this regard, and he now only has “the right to request of the Government of the Slovak Republic and of its members information necessary for the accomplishment of his tasks” (art. 102). Poland The independent non-­legislative powers of the Polish president are as follows. First, the president may, if necessary, convene the Cabinet Council (Rada Gabinetowa), which is formed by the government and chaired by the president. However, it should be emphasized that, according to Article 141 of the constitution, the Cabinet Council does not assume the competences of the government. Thus, this is not a government meeting chaired by the president. In fact, the Cabinet Council is rather a “discussion forum within a dualist executive power” or “an auxiliary advisory counseling body” (Bankowicz, 2016: 84). This power had already been conferred on the Polish president earlier: pursuant to Article 32f of the April Amendment to the Constitution of 1989 (Ustawa, 1989a) and also under Article 38 of the 1992 Little Constitution (Ustawa Konstytuyjna, 1992), the president could convene a government meeting and preside over it. The president could moreover temporarily assume the de facto role of prime minister; however the current Constitution of 1997 significantly weakens the president in this respect. Second, the president may accept or reject the prime minister’s resignation, which does not result from a successful motion of no confidence in the government (in which case the president is obliged to accept the resignation). On this subject, in comparison to previous constitutional provisions, the position of the president was strengthened. Article 162 of the 1997 Constitution explicitly states that the president may refuse the resignation of the prime minister. In contrast, the 1992 Little Constitution obliged the president to accept the resignation in this case (art. 65). Third, the president appoints three (out of nine) members of the Monetary Policy Council (RPP), which is a body of the National Bank of Poland (art. 227). The power to appoint part of the RPP members was only introduced in 1998 when the Monetary Policy Council was established.10

62   Formal presidential powers 3.3.5 Contingent non-­legislative powers Czech Republic One of the most important presidential powers in general is the role played in the government formation process, where the president enjoys a large degree of discretion (art.  62 and 68). On the one hand, the president can appoint almost anyone to the post of prime minister because there is no obligation to appoint the leader of the largest parliamentary party, or to consult with parliamentary parties on the steps involved in this process, as is common in some other European constitutions. Moreover, unlike in some other countries (e.g., Poland), the constitution does not specify any period of time within which the president has to appoint the new prime minister. On the other hand, the presidential power to appoint a prime minister is constrained by two factors. First, there has been a constitutional convention which assumes that the president shall consult with parliamentary parties on his procedural decisions in the government formation process and that, in most cases, the prime minister shall be the leader of the largest parliamentary party (Šimíček, 2003: 163; Sládeček et al., 2016: 597–598). Second, the newly appointed cabinet is obliged to receive a vote of confidence in parliament. It must appear within 30 days after its appointment before the Chamber of Deputies and ask for such a vote of confidence.11 These constraints force the president to appoint a cabinet which is in line with the parliamentary majority and which is likely to succeed in this obligatory vote. What is, however, essential for understanding this presidential power in a comprehensive manner is the considerable presidential influence upon the government formation process: immediately after the new government is formed, it can assume and exert its powers. The newly appointed government does not have to wait until the Chamber of Deputies expresses its confidence in the cabinet. Moreover, even if the cabinet does not receive a vote of confidence, the president authorizes this cabinet to execute its office “temporarily until a new Government is appointed” (art.  62). In other words, the president has enough constitutional powers to appoint his own “presidential” cabinet contrary to the will of the parliamentary majority, which may not have confidence in the cabinet, but the president – given no time framework to appoint a new cabinet – may delay the appointment of a new cabinet while his cabinet can work almost undisturbed. In fact, there are no time limits in the whole constitutional procedure of appointing the government, with the exception of the appointed cabinet which is required to ask for a vote of confidence in parliament within 30 days after its appointment. It is only generally expected that “the President and the prime minister have a duty to take the relevant steps without undue delay” (Wintr, Antoš and Kysela, 2016: 157).12 The president also appoints government members (ministers), but he may do  so only upon the prime minister’s proposal (art.  68). It is assumed that the president is generally obliged to accept these proposals since the government is

Formal presidential powers   63 politically accountable to parliament, not to the president. Thus, it is the former who bears responsibility for the personal policy of the government, although there might be exceptional situations in which the president could reject the nominees for government ministers (Wintr, Antoš and Kysela, 2016: 158). There are further contingent non-­legislative powers. First, the president has the power to remove the prime minister and other members of the government. In fact, the president can remove the prime minister and ministers only in specific scenarios that are conditioned by a decision taken by parliament: (a) the parliament passes a motion of no confidence in the government,13 (b) the parliament overrules the government motion for a vote of confidence, (c) the government “voluntarily” submits its resignation as a whole14 or (d) the term of office of the parliament comes to an end. Furthermore, presidents are obliged to accept the individual resignations of ministers proposed by the prime minister (art. 74). Second, the president is involved in the process of the dissolution of the Chamber of Deputies (the Senate may not be dissolved). The power of the president is, however, very constrained. It was not conceived of as real presidential power. Quite the contrary, the dissolution process has always been designed as a “safety valve” measure to unblock a deadlocked parliamentary situation (Brunclík, 2013; Bureš et al., 2012; Wintr, 2015). The president may dissolve the Chamber of Deputies only under very specific and rare circumstances. On the other hand, the constitutional practice showed that the constitutional provisions regulating parliamentary dissolution were not seen as sufficient to overcome a parliamentary or government stalemate. Hence, a special one-­off constitutional law, which shortened the term of office of the Chamber of Deputies and was passed in 1998, allowed for early elections. In 2009, the constitution was amended to allow for the possibility of the self-­ dissolution of the Chamber of Deputies. As a result, there are five situations in which the president may15 (or is obliged to16) dissolve the Chamber of Deputies. Slovakia The Slovak president is endowed with a very similar set of contingent non-­ legislative powers. The description of the role of the Czech president in the government formation process17 as well as in recalling the government18 may be generally applied on the Slovak case too. The president could originally dissolve the National Council, but only if the policy statement of the Government of the Slovak Republic is not approved three times within six months after the elections. Prior to dissolving the National Council of the Slovak Republic, the President is obliged to hear the standpoint of the chairman of the National Council of the Slovak Republic. (Art. 102) The range of situations in which the National Council may be dissolved was later widened,19 and nowadays the list of situations is very similar to the corresponding Czech provision.

64   Formal presidential powers Along with this, the president is obliged to dissolve the National Council, which initiated the recall of the president but was overruled by citizens in a subsequent plebiscite (art. 102). Finally, the president appoints judges of the Constitutional Court on the basis of nominations submitted by the National Council (art. 134). Poland There are comparatively many more non-­legislative contingent powers for the Polish president. First of all, the president appoints the prime minister. However, the president is not allowed to appoint the premier at will because the unambiguous procedure laid down in the constitution must be followed (art. 154 and 155) and the political reality must be taken into account so that the new government can be approved by the Sejm, without whose consent the government cannot work. The government formation process consists of a maximum of three steps: (1) the president designates the prime minister, who proposes the composition of the government; (2) the president appoints a new prime minister and a government within 14 days of the first session of the Sejm after the election or after acceptance of the resignation of the previous prime minister (3) within 14 days following his appointment, the prime minister is obliged to submit a government policy program to the Sejm together with a motion requiring a vote of confidence (art. 154). The Sejm passes a motion of confidence by a majority of all deputies. If this does not happen, the Sejm will elect a new prime minister and government within 14 days, also by a majority of all deputies. The president must then appoint the prime minister (and the entire government). If this procedure fails, the president can again appoint a new prime minister and a government chosen by the prime minister within 14 days. Within 14 days, the Sejm decides on their confidence in the government. However, only a simple majority is enough at this point, with at least half of all deputies present to pass the motion of confidence. If the government fails to receive the vote of confidence for the third time, the president dissolves the Sejm and calls for new elections (art. 154, 155). The constitutional provisions regulating the government formation process have gone through development over the years. According to the somewhat vague April Amendment of the 1989 Constitution, the president proposed a prime minister to the Sejm, at which point the prime minister in agreement with the president proposed to the Sejm the entire government for approval. The Little Constitution of 1992 introduced a very precise government formation process which was longer and more complex than that of the 1997 Constitution. The first step was the same. The second one too, except that the Sejm had more time at its disposal to act: 21 days. The third step was also the same as at present. In addition, the Little Constitution assumed the fourth step, which was the same as the second step, but the deadline was again 21 days. If the government failed to receive the vote of confidence, step five followed: the president could either dissolve the Sejm or independently appoint the government, but only for six

Formal presidential powers   65 months. If the Sejm did not pass a motion of confidence in the government within these six months, the president dissolved the Sejm and called for new elections. If we compare the 1992 and 1997 provisions, we see that the procedure is very strict and gives the president very little room for manoeuver. In no case can the government appointed by the president do without a parliamentary vote of confidence. It is not, in essence, possible to appoint a presidential government. There was only one theoretical exception noted in the fifth step of the 1992 Little Constitution. However, this step was never needed. The president is not allowed to recall the prime minister, but is only obliged to accept the latter’s resignation if the prime minister failed to gain a vote of confidence or, conversely, if the Sejm passed a successful motion of no confidence. As has already been said, if the prime minister’s resignation is submitted voluntarily, the president is allowed to refuse it. Previously, in line with the 1989 April Amendment, the president could propose that the Sejm recall the prime minister, but this power appeared neither in the 1992 Little Constitution nor in the 1997 Constitution. Second, the Polish president appoints and removes members of the government at the proposal of the prime minister; the president may not appoint or dismiss government ministers at will, leaving the entire matter in the hands of the prime minister. In the past it was the same, with the exception of the 1992 Little Constitution, which stipulated that the appointment of the foreign affairs, defense and interior ministers required the agreement of the prime minister and the president (art.  61). Therefore, these ministries were sometimes called “presidential ministries” (Falandysz, 1997: 24). Third, the president can (but may choose not to) dissolve parliament20 in the event of failure to approve the state budget within four months of submitting the draft budget to the Sejm. This power was also enshrined in the 1992 Little Constitution, but there was a shorter deadline of three months. The president also dissolves parliament if the Sejm fails to pass a vote of confidence in the new cabinet in line with the precise procedure regulating the government formation process (art. 154, 155) as described above. It should be noted that the president had a broader opportunity to dissolve parliament in earlier periods. Under the April 1989 Amendment, the president could also dissolve parliament if the Sejm passed a law or a resolution that prevented the president from exercising the abilities of the office. Such a special arrangement was the consequence of Poland’s post-­transition political situation. The Little Constitution of 1992 did not contain this specific provision, yet beyond the abovementioned possibilities of dissolving parliament (failed government formation process and failure to pass the state budget), it did allow for one more option: the president could dissolve parliament if the Sejm passed a vote of no confidence in the government but did not elect a new prime minister.

66   Formal presidential powers 3.3.6  Shared non-­legislative powers We identify only one relevant shared non-­legislative power: the Czech president appoints the judges of the Constitutional Court, but may do so only “with the consent of the Senate” (art. 84).21

3.4  Measuring presidential powers There are a number of ways to measure presidential powers. Among the best known are the methods of Timothy Frye (1997), Matthew Shugart and John Carey (1992) and Lee Metcalf (2000).22 These (and others) have their advantages and disadvantages, but they have become a “standard” tool for measuring presidential powers. In our analysis, we will come out on the side of the basic procedures as they are formulated by Shugart, Carey and Metcalf, at least in the sense that we will divide the powers into legislative and non-­legislative. This basic division of legislative and non-­legislative powers interplays with the division of powers based on the criterion of the president’s degree of independence in exercising their powers. They may exercise their powers truly independently, their powers might be shared with the government or exercising their powers could be conditioned by certain circumstances and acts of the other (constitutional) bodies. This criterion leads to the division of powers being independent, shared (i.e., countersigned) and contingent. The highest values, rated at three points, have independent powers. Shared powers are rated at two points because the president has to share their authority with another constitutional body, which is in most cases the prime minister or a government minister who countersigns the presidential acts. The contingent powers are given one point for the reason that while, in the case of shared powers, the president may influence or put pressure on the prime minister in order to gain approval (and thus eventually assert the presidential will), this is not possible with the powers conditioned by circumstances. The president must abide by restrictive procedures and wait for an event or action by other actors. Thus, the president’s will is severely constrained. Zero is where president has no powers at all. In any case, the measurement of presidential powers is to a certain extent a technical operation based only on formal rules, and therefore it is not particularly appropriate to analyze a democratic regime which further requires taking into account the actual usage and overall functioning of the regime. The role of the measurements in analyzing democratic regimes is thus rather auxiliary in nature as it may help to solve particular issues of an analysis. Looking at the scores of presidential powers in Central Europe, we can infer three things. First, the scores do not significantly differ from each other. Although the Polish president enjoys the highest degree of powers, his score is not essentially greater than that of the Czech and Slovak presidents. Of course, there might be a bias in selection of powers, yet even if we add or eliminate some of presidential powers, the picture would remain largely unaltered as presidents in Central Europe generally tend to score the same amount of points in the

3 3 3*

3 3 3

0 1 2

2 2 2

Referenda Ratification of international treaties

0 0 3

1 1 1

Legislative Appointing initiative prime minister and government ministers 1 1 1

0 0 0**

Dismissal of Chairing prime minister cabinet and meetings government ministers

Non-legislative powers

1 1 1

Parliamentary dissolution

2 1 0

3 0 3***

Appointing Appointing judges of members of Constitutional central bank Court

19 16 22

TOTAL

Notes * Overriding the presidential veto is more difficult to achieve in Poland than in the Czech Republic and Slovakia because a larger majority is needed. ** The Polish Constitution explicitly says that the Cabinet Council, i.e. a cabinet meeting chaired by the president, does not take over the government’s powers and that the Cabinet Council is not a government in the executive sense (see above). *** The Polish president appoints only three out of nine members of the Monetary Policy Council of National Bank of Poland.

3 3 3

Referring bills Address to to Constitutional parliament Court

Source: Own elaboration.

CZ SK PL

Veto

Legislative powers

Table 3.2  Presidential powers in Central Europe

68   Formal presidential powers respective types of presidential power. The scores of presidential powers do not provide reasons to consider whether the Central European polities constitute different regime types. Second, there are in fact only a few independent presidential powers that allow the president to be a central figure in at least some areas of the politics and policies of their countries. In addition, these powers are mostly outweighed by the powers granted to other constitutional bodies (e.g., parliament may override the presidential veto). This all means that the presidential powers are highly constrained or limited. Third, presidential powers are significantly greater in the legislative arena. All three presidents enjoy veto power, and these presidents have another tool to check legislative power: referring bills to the Constitutional Court. However, with the exception of the legislative initiative in Poland, presidents are left with no further legislative powers. Holding speeches in parliament might be politically important, yet in practice it has little effect on legislation and politics in general. Regarding referenda powers, presidents are rather highly constrained, and although they are involved in the process of ratifying international treaties, their role is a rather formal one because the government makes the treaties and they are only meant to confirm them. In the non-­legislative arena, presidents are even more sidelined, and in this scenario only the Czech president enjoys one truly independent power – to appoint members of the Czech Central Bank. In other cases of non-­legislative powers, the presidents are severely constrained by the simple fact that their powers are shared or contingent. As a result, the presidents do not wield any executive power that would allow them to govern; hence, they cannot be treated as presidents of semi-­presidential regimes in the traditional “Duvergerian” understanding of this regime type.

Notes   1 To be sure, not all presidential powers are enshrined in the constitution, as laws define some further powers of presidents. Thus, in a few cases, we also refer to important laws that specify general constitutional provisions.   2 It is interesting to note that in its ruling on the question of whether the president is obliged to comply with the prime minister’s proposal to recall the government members, and in the context of the government formation process and its resignation, the Constitutional Court stated that although the government … is the highest body of the executive … constitutional position of the President … is in fact dominant towards the constitutional position of the government.… A relative, not an absolute dominance of the President toward the government results from this position. (Ústavný súd, 1993)   3 The countersignature is necessary for the act to be valid.   4 Yet some of these powers were relevant neither in terms of constitutional conflicts nor in terms of actual usage of these powers. This fact clearly shows that assessing presidential powers de jure may significantly diverge from presidential powers de facto.   5 For a couple of types of presidential powers, we did not find corresponding powers in one or more Central European countries. This does not necessarily mean that the

Formal presidential powers   69 presidents lack such powers; rather, we solely seek to show that the presidents lack the powers that fit our typology of presidential powers.   6 The government draft of the Slovak Constitution originally included the power of the president to initiate legislation, but it was eventually dropped from the final version (Orosz and Šimuničová, 1998: 58). The original Slovak Constitution included an ambiguous provision in that the right to initiative legislation was vested in the parliament, MPs and the government. The president was also empowered to submit drafts of bills and other measures. The 1999 Constitutional Amendment eliminated this ambiguity (Horváth, 2005: 19).   7 This provision was subject to severe criticism. “This implies that the President is in this case only a ‘postman,’ and decision-­making itself is in the hands of the Government” (Valko, 1994: 316).   8 The Czech president has almost precisely the same power, but this is a shared power, as the countersignature of a government member is required.   9 For these reasons, we do not include decree powers in our measure of presidential powers. Neither the Czech nor the Slovak president has the decree power. 10 The president also proposes a candidate for the post of president of the National Bank of Poland to the Sejm (art. 227). This is where the presidency has been strengthened, as before 1997 this power was vested in the prime minister. 11 There is a slight difference as to the government program. Whereas it is a constitutional convention that the government asking for confidence is obliged to present its policy program in the Czech Republic, the Slovak (art.  113) and Polish (art.  154) Constitutions require that the governments present their programs. 12 These constitutional provisions and expert comments should be borne in mind because we shall get back to this issue in terms of constitutional practice in Chapter 4. 13 Contrary to the Czech Republic, the Slovak (art. 116) and Polish (art. 157) Constitutions allow parliament to express a vote of no confidence in individual ministers. 14 The Czech Constitution does not explicitly say that the resignation of the prime minister equates to the resignation of the government as a whole. This principle has, however, become a constitutional convention. In contrast, the Slovak Constitution clearly states, “In the event of the Prime Minister’s resignation, the whole Government shall resign” (art. 116). In Poland, this relationship between the prime minister and the government is a matter of course. 15 (1) The Chamber of Deputies does not adopt a resolution of confidence in a newly appointed government, the prime minister of which was appointed by the president of the Republic on the basis of a proposal of the president of the Chamber of Deputies. (2) The Chamber of Deputies fails, within three months, to reach a decision on a governmental bill with the consideration of which the government has joined the issue of confidence. (3) A session of the Chamber of Deputies has been adjourned for a longer period than is permissible. (4) For a period of more than three months, the Chamber of Deputies 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 (art. 35). 16 When the Chamber of Deputies proposes its dissolution by a resolution, which was approved by a three-­fifths majority of all deputies (art. 35). 17 There are perhaps only two slight deviations from the Czech provisions. First, whereas it is a constitutional convention that the newly appointed government asking for confidence is obliged to present its policy program in the Czech Republic, the Slovak Constitution requires that the government presents its program (art.  113). Second, in the event that the cabinet fails to gain a vote of confidence, the cabinet may remain in office as the president is obliged to “delegate all powers continuously to be exercised by the former Government until a new Government has been appointed” (art. 115), but the remit of such a government is constrained (art. 115). 18 The Slovak president is slightly more powerful than the Czech president in the situation where the president accepted the resignation of a minister, or has recalled a

70   Formal presidential powers minister. In this case, “The president shall designate another member to be temporarily responsible for fulfilling the duties of the resigning member” (art. 116). This means that the president may be able to decide on a temporal successor, which might be very uncomfortable for the prime minister. 19 The president may now dissolve the National Council in these situations: (1) if the National Council does not approve the program proclamation of a new cabinet within a period of six months from its nomination; (2) if the National Council does not pass a government bill with which the government has connected a vote of confidence, (3)  if the National Council fails to hold a session for longer than three months although its meeting has not been adjourned and it has been repeatedly called for a meeting during this period; (4) if a session of the National Council has been adjourned for a longer time than is allowed by the constitution (art. 102). 20 When the president dissolves the Sejm, it automatically leads to the simultaneous dissolution of the Senate (art. 98). Therefore, the president de facto dissolves the parliament as a whole. 21 In constitutional practices, the president selects candidates for the judges, who are then discussed and either approved or rejected by the Senate. 22 For a debate on these methods, see Doyle and Elgie (2016) and Fortin (2013).

4 Presidential powers in practice

In Chapter 3, we presented the formal powers of the Central European presidents, which stem from their constitutional position. However, the real value of presidential power is a completely different matter, for it is contingent not only on formal constitutional provisions but also to a large extent on other factors (see Chapter 6). This chapter is particularly concerned with the question of how presidents in Central Europe have used their competences in actual constitutional practice. It should be emphasized from the outset that we do not seek to provide a systematic overview of the actual usage of all presidential powers over the past three decades, as this matter goes beyond the scope of this book. Thus, in this chapter, we make a qualified selection of competences that are relevant to constitutional conflicts as well as to those powers which allow the president to increase their overall power, thereby having a real and significant influence on executive and legislative politics. In sum, the structure of this chapter does not perfectly mirror the set of formal presidential powers. We approach this issue from the distinction made in Chapter 3 between legislative and non-­legislative powers. In the context of this chapter in particular, we attempt to make a generalization on the actual usage of the formal presidential competences in order to show which formal powers presidents use to strengthen their real power. We elaborate more on these areas subjected to conflicts between the president and other constitutional bodies (notably governments and parliaments). We also take into account the importance of constitutional conflicts that lie beyond the formal presidential powers analyzed in this book. There have been several such cases in each country, and these are far too important to be ignored in our account of presidential powers and their actual use. On the other hand, we show that in several areas that we delineated in Chapter 3, presidents do not fully use their power or the power is so severely limited by other circumstances that it is in fact of little relevance for the overall capacities of presidential power. Thus, we do not pay much attention when it comes to these areas.

4.1  Legislative powers In this section, we focus on five legislative powers introduced in Chapter 3: veto  powers, referring bills to the Constitutional Court, addressing parliament,

72   Presidential powers in practice referenda powers and legislative initiative.1 It should be noted that the Czech president has no referendum power.2 In addition, neither the Czech nor Slovak president has any legislative initiative. 4.1.1  Czech Republic The presidential veto is a standard way to counterbalance the power of the legislature and is a tool in policy conflicts. The Czech presidents were relatively restrained in using this power. The first president, Václav Havel, was most notably active during the Czech Social Democratic Party (ČSSD) minority cabinet from 1998 to 2002.3 On the other hand, Havel vetoed no bill during the ČSSD cabinet led by Vladimír Špidla in 2002–2004, to which he was relatively positively inclined. It is interesting to note that during that time a number of politicians, including Václav Klaus, claimed that Havel used his veto power far too extensively. However, when Klaus became president, he was much more active than Havel in this regard. His veto activity peaked during the 2003–2006 era of ČSSD cabinets, in terms of both the number and the share of vetoed bills. However, Klaus’s veto activity dropped during the Civic Democratic Party (ODS) cabinet led by Petr Nečas (2010–2013). President Zeman was the least active president in terms of using the legislative veto. The Czech practice shows that presidents are most likely to veto bills once they face an ideologically different government and the relations between the two actors of the executive are rather cold (Table 4.1). When it comes to submissions to the Constitutional Court, presidents have only asked the Constitutional Court for its decision in 14 cases. Václav Havel was by far the most active and successful president: in eight out of 11 cases, the Constitutional Court fully or partially accepted the president’s position (Kopeček and Mlejnek, 2013: 45). One of the most closely followed decisions was a controversial amendment to the electoral law passed in 2000 whose major parts were abolished on the basis of Havel’s complaints. This case should be understood as part of a political battle between two major political camps. On the one hand, there were the then two largest parliamentary parties (ČSSD and ODS), which concluded the so-­called Opposition Agreement. On the other hand, there was the Coalition of Four and the presidency of Havel (Kopeček, 2015). Table 4.1 Presidential veto and bill submissions to the Constitutional Court in the Czech Republic

Václav Havel (1993–2003) Václav Klaus (2003–2013) Miloš Zeman (2013–2017)

Veto

Bill submissions to the Constitutional Court

24 57  7

11  1  2

Sources: Ústavní soud (2017; Poslanecká sněmovna (2017); http://old.hrad.cz/president/Havel/ politika/zakony.html.

Presidential powers in practice   73 Addresses to the parliament have not become effective tools to push through potential presidential policies. Perhaps only one speech has had a great impact ‒ Václav Havel’s “Rudolfinum”4 address to both chambers in December 1997 (Havel, 1997). His speech is understood as a comment on numerous problems in Czech society, including the lack of trust towards political parties, the economic troubles and the overall negative social atmosphere. The speech was seen as a sharp critique of Klaus’s government, which had just resigned over scandals related to the unclear financing of the ODS and ODA (Civic Democratic Alliance) parties (Brunclík, 2008a: 289–291; Kopeček and Mlejnek, 2013: 49). 4.1.2  Slovakia Except for the legislative initiative, the Slovak president has all the legislative powers as outlined above. Slovak presidents have generally been more active in using the presidential veto than Czech presidents; moreover, similar to the Czech case, they (perhaps with the exception of Andrej Kiska) have been more likely to veto a bill when they face a politically oppositional government. In comparison to his successors, the first president, Michal Kováč, was relatively restrained in using his legislative veto powers despite his constant conflicts with the Mečiar cabinet. On the other hand, he was more active in resorting to the Constitutional Court as an efficient tool to block Mečiar’s illiberal tendencies. The next president, Rudolf Schuster, was even more active because he “became overwhelmingly engaged in the policy-­making process” (Malíková and Staroňová, 2005: 191). He returned more than 100 bills, many of them of key importance to the Dzurinda cabinets’ policies. President Ivan Gašparovič returned many bills as well. However, his activity significantly varied as it was contingent on whether he was faced with the right-­wing cabinets of Mikuláš Dzurinda (2004–2006) and Iveta Radičová (2010–2012) or with the left-­wing cabinets of Robert Fico (2006–2010 and 2012–2014). His veto activity reached its peak during the Radičová cabinet, of which he was highly critical; meanwhile, he vetoed a much smaller share of bills during the first Fico cabinet and no bills during Robert Fico’s second cabinet. Andrej Kiska has so far used his veto power rather moderately (Table 4.2). The Slovak Constitutional Court has so far issued 13 resolutions following proposals by Slovak presidents to repeal a law. The most active was Michal Table 4.2  Presidential veto and bill submissions to the Constitutional Court in Slovakia

Michal Kováč (1993–1998) Rudolf Schuster (1999–2004) Ivan Gašparovič (2004–2014) Andrej Kiska (2014–2017)

Veto

Bill submissions to the Constitutional Court

  32 103   98   24

7 1 5 0

Sources: Národná rada (2017); Ústavný súd (2017).

74   Presidential powers in practice Kováč. It is important to say that in four cases Kováč attempted (mostly successfully) to block laws, Mečiar’s cabinet hoped to curb presidential powers (e.g., Ústavný súd, 1996a, 1996b). As far as presidential addresses to the parliament are concerned, the power to present reports on the state of the country is designed rather as a duty of the president. However, starting with President Kováč, the Slovak presidents have skillfully used this duty as an effective and vociferous tool to express their opinion, presenting themselves as morally superior and above the authority of parties, notably in criticizing unpopular policies and the failures of government (Mesežnikov, 2006: 29). They have been closely followed by media and have sparked political debates. On the other hand, perhaps with one exception, the reports “had only a very limited impact upon the actual policies of the cabinet” (Malová and Rybář, 2008: 188). President Kováč relied heavily on these reports given the fact that soon after he had taken office he became effectively cut off from all access to public media, which were controlled by the government.5 Perhaps the most important report of the president was presented in 1994, when he enumerated a number of problems of the Slovak Republic for which Vladimír Mečiar’s cabinet was held responsible (Kováč, 1994). The report was eventually instrumental in the fall of the Mečiar cabinet. Following the speech, parliament successfully passed a vote of no confidence in the prime minister, and Mečiar resigned (Henderson, 2002: 43). When it comes to referendum power, its relevance is ambiguous. On the one hand, Slovak presidents have probably been the most active when it comes to using this power for political purposes in Central Europe. The referenda issues, campaigning itself and the political outcomes that ensue were highly critical factors for Slovak politics, although the presidents were not always able to achieve their goals by taking this route. On the other hand, their formal referendum power is highly constrained because the president is not allowed to call a referendum at will but only upon the initiative of another actor. In addition, with the exception of the 2003 referendum in which Slovak citizens approved Slovakia joining the EU, none of the nationwide referenda were valid due to a low turnout. Thus, referenda have not been relevant in terms of reaching a final legal validity but have been when it comes to the political context and the consequences. In the following account, we mention only three cases of referenda in which the president was highly active and used the referendum towards their own political struggles. The most controversial referendum in Slovakia by far, and perhaps in all of the Central European countries in question, was the Slovak 1997 referendum on a direct presidential election.6 The referendum and the matter in question became the object of a constitutional and political battle between the government on one side and the opposition and president on the other. The government effectively marred the referendum as it deleted the question on the popular election from the referendum ballots (Mesežnikov and Bútora, 1997; Michalič, 1997). In protest, Michal Kováč and the opposition appealed to the Constitutional Court, arguing that the will of more than half a million people who petitioned for the referendum

Presidential powers in practice   75 was ignored. The Constitutional Court ruled in favor of Kováč, who called for the referendum once again and set its date for April 1998. However, his term came to an end in March 1998, and Vladimír Mečiar, having assumed some presidential powers, cancelled the referendum (Mesežnikov, 1999: 28–32; Štollová, 2014: 42–43). The struggle over the referendum was only over after the 1999 constitutional amendment that introduced the direct election (Malová, 2001: 367). In 2004, President Schuster attempted to use a referendum as an opportunity to win political support prior to the 2004 presidential elections. At that time, the trade unions and the Smer (“direction”) party petitioned for a referendum that was instrumental in calling early parliamentary elections. The trade unionists asked the president to set the date of both elections on the same day (Oravcová, 2016). Schuster sought to take advantage of the situation by using the Smer party and the trade unions as key supporters for his candidacy. However, the referendum on the early elections was not valid as the turnout did not reach the required 50 percent threshold. Moreover, Schuster’s calculations did not materialize. The Smer party supported Ivan Gašparovič, and the trade unions did not provide citizens with any recommendation for Rudolf Schuster, who then finished fourth in the elections (Kopeček, 2008: 207–208; Spáč, 2013: 134). Moreover, President Gašparovič introduced some obstacles in the case of the referendum initiated by the Freedom and Solidarity (SAS) party in 2010. The referendum included a set of six questions, including reducing the number of members of parliament from 150 to 100 (Hudáčková and Eibl, 2011: 57). He set the date of the referendum for a different term than the parliamentary election, which effectively reduced the turnout in the September 2010 referendum to below the required level (Mesežnikov, 2011: 35) (Table 4.3). 4.1.3  Poland The Polish president disposes all legislative powers as outlined in Chapter 3. The major difference from the Czech and Slovak president is that the Polish president may initiate legislation. The Polish president has been relatively active in the legislation process, but one cannot say that they have used their legislative powers as an opportunity to meddle in governmental and parliamentary politics or to increase their or their allies’ political influence. There is only one exception to this rule, which is President Lech Kaczyński, who was significantly more diligent with these duties at the time when Donald Tusk (2007–2014), leading a politically opposing government, ruled the country. This is in stark contrast to the period when his brother and partisan ally, Prime Minister Jarosław Kaczyński (2006–2007), ruled. The vast majority of legislative initiatives, vetoes and submissions of bills to the Constitutional Tribunal took place in 2008–2010 (Table 4.4). In this context, while taking into account the president’s personality and other circumstances, it is important to note that President Kaczyński understood this activity not as a way to strengthen his own position (he did not aim for this at all) but as a way to

Ban on privatization of strategically important state-owned companies Holding early parliamentary elections

EU membership

Holding early parliamentary elections

Six questions: (1) abolish public TV fees, (2) limit parliamentary immunity, (3) lower the number of MPs from 150 to 100, (4) set a maximum price for limousines used by the government, (5) introduce remote internet voting, (6) change the press law by removing politicians’ automatic right of reply Three questions: (1) reserve the concept of “marriage” solely for the Petition initiated by legal bond between one man and one woman; (2) couples of the same conservative groups sex should not be allowed to adopt and raise children; (3) schools should not require participation of children in the field of sexual education or euthanasia if their parents or the children themselves do not agree with it

1998

2000

2003

2004

2010

Source: Nohlen and Stöver (2010: 1747–1752); http://volby.statistics.sk/.

2015

1997

Turnout (%)

52.2

20.0

21.4

Petition supported by 35.9 SMER and other opposition parties Petition initiated by SAS 22.8 party

Petition initiated by HZDS a SNS Parliament

Parliament (initiative by 20.0 ZRS) Parliament (fourth question   9.5 was initiated by opposition parties) Petition initiated by HZDS 44.3

Retrospective disclosure of the financial details of large-scale privatization Four questions: NATO membership, nuclear weapons in Slovakia, foreign military bases in Slovakia, direct election

1994

Initiator

Topic

Date

Table 4.3  Referenda in Slovakia

Not valid Yes: 90.3–94.5/ No: 4.1–7.3

Not valid Yes: 87.2–95.4/ No: 1.7–22.2

Not valid Yes: 95.9/No: 4.1 Not valid Yes: 72.5–93.7/ No: 6.3–27.5 Not valid Yes: 84.3/No: 15.7 Not valid Yes: 92.7/No: 4.8 Valid: Yes 92.5/No: 6.2 Not valid Yes: 86.8/No: 11.9

Result (%)

 0 28 21 27 46 31 17

Wojciech Jaruzelski (1989–1990) Lech Wałęsa (1990–1995) Aleksander Kwaśniewski (1995–2000) Aleksander Kwaśniewski (2000–2005) Lech Kaczyński (2005–2010) Bronisław Komorowski (2010–2015) Andrzej Duda (2015–2017)*

Note * Data until August 2017. Duda’s term of office is to expire by 2020.

Source: Wawrzyniak (2016: 59); www.prezydent.pl.

Legislative initiative

President

Table 4.4  Polish presidents in the legislative process

 0 17 11 24 18  4  7

Legislative veto

 2  2 15 12 20  6  3

Bill submissions to the Constitutional Tribunal

78   Presidential powers in practice help his brother, who was related to him not only as a sibling but also as a close political ally. In Poland, too, the president’s addresses have been rather of a festive nature and have tended to relate to general or historical questions. On the other hand, this does not mean that presidents have avoided political issues in their speeches. This was particularly true for President Lech Wałęsa, who was more appealing to the public than to parliamentarians in his parliamentary speeches. In the first half of the 1990s, Wałęsa created the impression that he was strengthening authority and rivaling parliament through these statements. In contrast, Lech Kaczyński spoke to parliament in 2005 in a manner that, according to some observers, was reminiscent of the exposition of the prime minister (including a negative definition of the previous period), with critics reprimanding him for not dealing with wider social issues (Glajcar 2006a: 96; Kołodziejczak 2014). Other presidents have had a rather moderate style and, in any case, have not even come close to the famous Rudolfinum Speech given by the Czech president Václav Havel in 1997, which had far-­reaching political consequences (see p. 73). Polish presidents have consequently been unable to influence the political situation in their country through their addresses to the parliament. The importance of referenda for the country as well as for the presidential powers and political position of the president have been rather limited. There have been too few referenda, most of which were not binding due to low turnout, to more comprehensively analyze this aspect (Table 4.5).7 Looking at the referenda, we see that only three of them can be viewed as a manifestation of a political struggle: the first two referenda of 1996, which were formally separated but were de facto a single referendum because the vote took place on the same day; the last one took place in 2015. Both referenda had a pronounced political subtext. Lech Wałęsa’s attempt to call the first privatization referendum was linked to the culminating campaign for the presidential elections in autumn 1995 as well as operating as an attempt to help Solidarity return to the political scene (Dudek, 2016: 357; Piasecki, 2005: 19–20).8 The second “presidential” referendum was a part of the electoral rivalry between the two main Polish parties, the Civic Platform (PO) and the Law and Justice (PiS) party. It was also related to President Komorowski’s re-­election campaign, as is evident from the hastiness in calling the referendum and the final date being set between the presidential (May 2015) and parliamentary (October 2015) elections (Dudek, 2016: 687; Sieklucki, 2016: 152). However, although both presidents sought to achieve some form of political gain, they lost in both cases. The referenda they called for did not reverse the political developments (and both presidents in fact lost in the presidential elections). Nor were they able to attract public attention, especially in 2015, when the referendum was a catastrophe in terms of turnout with only 8 percent. All in all, the Polish political practice shows that the referendum, in terms of both its frequency and its outcome, cannot be understood as a means of strengthening the president’s political position in the country.

Privatization (1 question)

Privatization (4 questions)

Constitution (1 question)

EU accession (1 question)

Various (3 questions: electoral system, political parties and their finance, interpretation of tax law)

18. 2. 1996

18. 2. 1996

25. 5. 1997

7.–8. 6. 2003

6. 9. 2015

Sources: Piasecki (2005); Sieklucki (2016: 150–151); http://pkw.gov.pl.

Issue

Date

Table 4.5  Referenda in Poland

President with the Senate’s approval

President (referendum was compulsory) Sejm

President with the Senate’s approval Sejm

Initiator

  7.8

58.9

42.9

32.4

32.4

Turnout (%)

Not binding Yes: 94.5/No: 5.5 Not binding 4 × yes: 92.9; 93.7; 72.5; 88.3/ No: 7.1; 6.3; 27.5; 11.7 Binding Yes: 53.5/No: 46.6 Binding Yes: 77.5/No: 22.6 Not binding 3 × yes: 78.8; 17.4; 94.5/ No: 21.3; 82.6; 5.5

Result (%)

80   Presidential powers in practice

4.2  Non-­legislative powers In this section, we focus on three areas of power: the appointment of the prime minister and government ministers; the dismissal of the prime minister and government ministers; and other appointments and conflict areas (notably judges of the Constitutional Court and members of the board of the Central Bank). The first two areas are discussed separately. The cases falling within the scope of the third area are discussed jointly in a separate section for the three countries. Considering the wide range of practices as well as the conflicts in the abovementioned areas, we need to make a careful selection of cases that were either illustrative of a broader set of cases or which were highly important in terms of constitutional practices and constitutional conflicts. 4.2.1  Czech Republic We consider the presidential role in the government formation process as one of the most important presidential constitutional powers in the Czech Republic, where the president enjoys considerable discretion, with most of them having demonstrated their willingness to take advantage of the room for maneuver allotted them by the constitution (see Chapter 3). The actual constitutional and political practices of Czech presidents during the government formation process have been rather diverse. In general, the president has adhered to the principle that the government results from the parliamentary majority and that the largest party should get the right to nominate the prime minister. Presidents also respect the fact that it is the prime minister who is responsible for the composition of their cabinet. Therefore, they usually comply with the prime minister’s request to appoint government ministers. On the other hand, the role of the president in the government formation process has not been passive, and all the presidents have proven to be important actors. The president managed to gain some wiggle room in the government formation process through setting some conditions that lay beyond the constitutional requirements. For instance, President Havel invented a special political practice according to which, before appointing the prime minister, which is a clear step towards a new cabinet in line with the constitutional provisions, he would authorize a particular person to establish the new government, which basically means that person is expected to inquire into any possible scenarios regarding the future cabinet. The importance of this practice is that the president does not use their formal power to appoint the new prime minister until it is clear that the candidate for prime minister is able to get enough support for their cabinet. This practice has become useful in times of uncertainty, where there is a lack of a clear parliamentary majority. This convention was established following the 1996 elections, when the ODS-­led coalition lacked enough support to command the parliamentary majority. Havel also practiced this convention in 1997–1998 following the resignation of the right-­wing, three-­party minority coalition led by Václav Klaus. It is interesting that Havel authorized the leader

Presidential powers in practice   81 of one of the minor parliamentary parties, Josef Lux, to inquiry into viable alternatives for the future cabinet. However, it was not Lux who became prime minister but Josef Tošovský, the governor of the Czech National Bank. Tošovský in turn established a technocratic cabinet (Brunclík, 2016: 16–17; Hloušek and Kopeček 2014: 64). Also, in general, Presidents Havel and Klaus effectively sidelined the Communist party from participating in government, whereas Presidents Klaus and Zeman required that at least 101 MPs committed to support a new cabinet prior to the vote of confidence. In several individual cases, presidents have demonstrated an unwillingness to appoint ministers, and in some cases they have even blocked them altogether. It has been common for all presidents to question candidates’ competency, their problematic past, their conflicts of interest or other issues.9 There has been a single case of a presidential cabinet, which contradicts the general pattern of behavior from presidents in the government formation process outlined above. In June 2013, the majority three-­party coalition cabinet led by Petr Nečas (ODS) resigned over a large-­scale scandal related to bribery, money laundering and illegally ordering military intelligence chiefs to spy on the prime minister’s wife. All of the parties shared the view that the solution to the crisis (i.e., a new cabinet) should originate not from Prague Castle, which is the seat of the president, but from the Chamber of Deputies. However, President Zeman felt powerful enough to solve the government crisis independently and, despite the views of all the parliamentary parties, he appointed Jiří Rusnok as the new prime minister, and the first ever presidential (and technocratic) cabinet in the Czech Republic was established. Zeman faced the criticism that he had broken an important constitutional convention: cabinets are formed in line with the will of the parliamentary majority. Zeman rebuffed the critique by saying, “The concept of constitutional conventions is completely idiotic” (Idnes, 2013). The Czech president is formally much weaker as far as dismissal of the prime minister and ministers is concerned. The president is not allowed to recall the prime minister or ministers except under specific situations (see Chapter 3). Yet in several cases the president has been intensively involved in government changes and has had sharp conflicts with the government. The first such conflict emerged in February 2005 when then Prime Minister Stanislav Gross (ČSSD) faced a serious financial scandal. It led to ČSSD’s coalition partners ‒ Christian Democrats (KDU-­ČSL) and Freedom Union ‒ putting pressure on Gross. Three KDU-­ČSL ministers decided to submit their resignations. In line with the constitution, Gross asked the president to accept the resignations of the three ministers, but the president did not comply with his request, which bordered on unconstitutional. Since Gross came under increasing pressure from the coalition parties as well as opposition parties, not to mention the president and the public, he eventually gave up and resigned. The coalition parties agreed on a new coalition acceptable to Klaus, who then appointed a new ČSSD-led three-­party cabinet (Brunclík, 2008a: 293–297). In 2011, Klaus significantly intervened in government matters yet again. Prime Minister Peter Nečas proposed the dismissal of

82   Presidential powers in practice three ministers in his government. However, Klaus successfully blocked the recalling of the three ministers and argued that his intention was to save the country from a governmental crisis (Kopeček and Mlejnek, 2013: 65; Müllerová, 2014: 28). However, the most controversial behavior of the president in recalling government ministers as well as the government as a whole can be attributed to President Zeman, who suggested an approach to the constitution that contradicted prevailing interpretations by constitution makers, the professional community and previous constitutional practice and conventions. Shortly after having been elected president, Zeman made it clear that he could remove the prime minister at will in line with “an extensive interpretation of the Constitution” (Lidovky, 2013a). However, academia as well as key politicians brushed aside this opinion, and Zeman did not attempt to put his notion into practice. In 2017, Zeman made it clear that he would not recall Minister of Finance and Vice-­Premier Andrej Babiš as proposed by Prime Minister Bohuslav Sobotka in line with constitutional provisions. Sobotka reacted with a statement that he would resign, which would have meant the resignation of the whole cabinet; Zeman subsequently said he would accept only Sobotka’s individual resignation, while the rest of the cabinet should remain in power. This procedure, which contradicted the constitution as well as current constitutional practice, was not applied. Sobotka did not resign after all. Instead, he insisted on recalling Andrej Babiš, and Zeman, after a delay, and following a great deal of pressure from the public, accepted Babiš’ resignation (Brunclík and Kubát, 2017; Molek, 2015). 4.2.2  Slovakia In Slovakia, too, presidential non-­legislative powers are constrained. In contrast to the Czech Republic, where the president has been particularly powerful in the government formation process, the Slovak president has been more restrained, although he enjoys a similarly wide discretion in this procedure. Indeed, in Slovakia we have not been able to identify a case of a powerful president pushing their own alternatives onto the government. This holds true even for the period of the 1990s, characterized by the highly escalated and fierce conflicts between President Michal Kováč and Prime Minister Vladimír Mečiar. President Kováč simply respected the fact that his major opponent, Mečiar, was the leader of the largest party in Slovakia and appointed him prime minister following the 1994 elections. On the other hand, Slovak presidents have tried to manifest their power in the appointment of government ministers and in several cases have shown their disagreements with a nominee. Their reluctance was fostered by the fact that the president was not originally constitutionally obliged to comply with the prime minister’s request to appoint ministers, and they could thus gain greater leverage over the composition of the cabinet. President Kováč, for instance, took particular advantage of this fact and could have significantly thwarted Mečiar’s personal policy if he had wished to do so. On the other hand, Kováč rarely used this

Presidential powers in practice   83 power, with the most serious conflict occurring when he refused to appoint Ivan Lexa as the chair of the Slovak secret service (SIS). Kováč reasoned that Lexa “does not fulfil requirements” and “does not enjoy my trust” (Kováč, 2010: 155). When Kováč turned down Lexa as the candidate for the SIS, Mečiar nominated Lexa as the minister for privatization. Kováč rejected Lexa once again; however, in an effort not to escalate the issue further, Kováč did not reject further ministerial appointments in the period of 1994–1998 (Kopeček, 2008). Kováč’s successors in the presidential office have also used their power to block and delay ministerial appointments, but only rarely (Malová and Rybář, 2008: 195; Mesežnikov, 2002: 28 and 32).10 Similar to the Czech Republic, a few conflicts over recalling a government member have materialized. The conflicts started even before Kováč was elected to the presidency. In January 1993, Mečiar got into a dispute with Minister of Foreign Affairs Milan Kňažko. Mečiar called on Kňažko to step down, but the latter replied that the president must accept the resignation. Only after Kováč was elected could Mečiar officially ask the president to recall Kňažko (Jancura, 2014). Nevertheless, given the already discussed constitutional ambiguity, Kováč claimed that the president could not comply with the prime minister’s request. Hence, Kováč asked the Constitutional Court to interpret the respective article. On the other hand, he eventually did recall Kňažko and did not wait for a resolution from the Constitutional Court, which ruled that the president is obliged to deal with the proposal but is not obliged to recall the minister (Ústavný súd, 1993).11 There was one more peculiar conflict over the recalling of government ministers. In March 2012, Gašparovič announced his intention to recall Minister of Finance Ivan Mikloš just few days before the elections. However, there was a double dilemma with this ambition. First, he did so without the prime minister proposing it. Second, Mikloš was a minister in the Radičová cabinet, which had been defeated in a vote of confidence in October 2011 after a dispute on the euro zone bailout. Following the vote, the president authorized Radičová and her cabinet to carry out government functions until early elections in March 2012. Gašparovič argued that he did not need the approval of the cabinet for the removal of the minister because the cabinet was only a caretaker one. The aim of this step was to show that the right-­wing government was dysfunctional and was characterized by failures (Horváth, 2014: 80). 4.2.3  Poland In the Polish case as well, one of the main non-­legislative powers of the president is participation in the government formation process. We are deliberately talking about participation because the government cannot arise without cooperation between the Sejm and the president, who are dependent upon one another. If the Sejm does not endorse the government, eventually the latter must dissolve the former. In contrast to the Czech Republic, the president has no leeway for pushing their “government” against the will of the Sejm (Wawrzyniak,

84   Presidential powers in practice 2016: 84–85). A presidential dependence on the political composition of the Sejm was introduced to the constitution at the commencement of Polish democracy, although the relevant procedures have been altered three times since 1989 (the 1989 April Amendment of the 1952 Constitution, the 1992 Little Constitution and the 1997 Constitution). The Polish president has been severely constrained by the constitutional text, which is rather detailed and gives the president much less room to maneuver in the government formation process; during the transition period, the president had held more power in the procedure. It was the first president, Wojciech Jaruzelski, who made an attempt to push through his own candidate by proposing his collaborator Czesław Kiszczak as the new prime minister in the summer of 1989, but the Sejm rejected him in the end (Dudek, 2004). In addition, political circumstances in fact allowed and required the president to be more active in the government formation process. The very first period of 1989–1992 showed that the political fragmentation of the Sejm gave the president greater leeway in selecting the candidate for prime minister, which was even more clearly demonstrated by the stormy period of 1990–1992 when newly elected President Lech Wałęsa tried to push through his own government; while this technique sometimes went well enough, at other times it did not work at all. The government of Jan Krzysztof Bielecki (January–December 1991), whose composition was strongly influenced by the president, was considered to be almost a “presidential government.” It was named “President Wałęsa’s authorial government” (Mojak, 1995: 237). On the other hand, the president only had a minimal influence on the subsequent government of Jan Olszewski (December 1991–July 1992), yet he then significantly influenced the composition of the government of Hanna Suchocka in July 1992.12 This variation was due to the extremely complex political situation in the country as well as to the fact that the government formation process was unclear according to the constitutional April Amendment of 1989, whose specifications were brought to the Sejm’s Rules of Procedure of July 30, 1992 (Szeliga, 1998: 16). However, as early as autumn 1992, the Little Constitution was adopted, thereby changing and, above all, clarifying the regulations for this procedure. The new procedure for the government formation process was very detailed and precise, and it defined the roles of the individual actors in specific terms (see Chapter 3).13 In addition, the political atmosphere in which this was occurring had shifted as well, further stabilizing the situation. The 1993 early parliamentary elections took place according to an amended electoral system that prevented the fragmentation of the Sejm. Since then, the president has been a more passive actor when it came to his participatory role in the government formation process, largely respecting parliamentary conditions to a greater extent than before. Initially, Lech Wałęsa was yet again an exception to this rule. He interpreted Article 61 of the 1992 Little Constitution14 to say that the president had the power to decide on particular government seats, but President Aleksander Kwaśniewski did not continue this practice when he took office. The Polish

Presidential powers in practice   85 experience with President Wałęsa and his interference in the composition of governments resulted in the 1997 Constitution no longer allowing for such an interpretation. In actuality, the 1997 Constitution more generally brought considerable limitations to the presidential role in the government formation process. The procedure was transformed into such a definite and strict rubric that it no longer permits ambiguities and doubts or any presidential arbitrariness (Kubát, 2009: 135–136). From 1997 onwards, only one prime minister failed to receive a vote of confidence at their first attempt.15 Of course, factors lying beyond the constitution – various political conditions, in particular the ability of the electoral system to create the necessary majority in parliament – have also played an important role. The Polish case shows that, under certain constitutional and political circumstances, it is appropriate to limit the role of the head of state in the government formation process. In Poland, a few notable conflicts over cabinet dismissals have happened too. President Lech Wałęsa proposed recalling the prime minister (in accordance with Article 32f, paragraph 1/6 of the 1989 April Amendment to the Constitution of 1952) to the Sejm. On June 4, 1992, he proposed the dismissal of Prime Minister Jan Olszewski, and the Sejm accepted his proposal, which at least symbolically strengthened the presidency (Glajcar, 2006b: 129–130). After the 1992 Constitution abolished this power, similar attempts ceased altogether. The president has also at times unsuccessfully attempted to remove ministers. Moreover, according to Article 68, the president may accept the prime minister’s proposal to dismiss a government minister. It was again Lech Wałęsa who occasionally used this power, which was, however, virtually removed in the 1997 Constitution. As it stands, his role is purely formal when it comes to changes in the composition of the government, and only the prime minister can decide on such changes in the government.16 The only option left to the president is the possibility of refusing to accept the resignation of the prime minister, if the resignation is voluntary, i.e., not because of a vote of no confidence in the government. Since 1997, the president has refused a resignation only once, when President Aleksander Kwaśniewski rejected a resignation offered by Prime Minister Marek Belka in May 2005 (Dudek, 2016). An important power that can strengthen the president’s influence over the government is the presidential participation in government meetings or even presiding over meetings. Poland opted for an unusual solution, which is absent in the Czech Republic and the Slovak Republic: there is a special institution, the Cabinet Council (a government meeting under the chairmanship of the president), but this body does not take up any of the powers of the government. It is simply a kind of discussion forum. As already stated in Chapter 3, the 1997 Constitution considerably weakened the president. Before 1997, the president could convene a government meeting and chair it in place of the prime minister; the government did not change its status and kept its powers, thus allowing the president to temporarily assume the post of prime minister. It is noteworthy, however, that no president ever used this opportunity between 1989 and 1997 (Glajcar, 2006b: 135). This is particularly surprising with President Lech

86   Presidential powers in practice Wałęsa, who was otherwise a very active president who tried to make the most of all of his powers. The reason is obviously the fact that President Wałęsa had rather bad relations with unstable governments, and the use of this power would have only deepened conflicts instead of strengthening his position within the executive. On the other hand, after the establishment of the Cabinet Council, the president began to engage in this opportunity. Aleksander Kwaśniewski did so for the first time in January 1998 and later during his double term (1995–2005) convened the Cabinet Council nine additional times. Lech Kaczyński (2005–2010) did it four times, Bronisław Komorowski (2010–2015) also did it four times and Andrzej Duda (2015) had not even done it once by 2017.17 As for the president’s participation in the legislative process (see pp. 75–77), we do not even see a rule here that would outline the general nature of the Cabinet Council. The president has convened the council under various circumstances, and the themes of the talks were highly diverse. Again, it cannot be said that foreign or security policy issues dominated, as might be expected, even though these were discussed at Cabinet Council meetings. Overall, however, the president’s influence on the agenda and government decision-­making is almost zero, and the Cabinet Council cannot be understood as a tool to reinforce the president’s minimal influence.

4.3  Other appointments and conflict areas One can easily find a number of other more or less serious conflicts between the president and other constitutional bodies beyond both the legislative and non-­ legislative presidential powers enumerated in Chapter 3. Most of these cases are related to the appointment of various state officials. Although in general the president does not block appointments and seeks to find a consensus on persons to be appointed into an assortment of public functions, in several cases a conflict arose between the president and the government, with a few such conflicts being eventually submitted to the Constitutional Court for an ultimate ruling. In the following account, we show a sample of such conflicts that reasonably illustrate this point. In all three countries, conflicts have appeared in this respect over judicial power, most often over the appointment of judges, most of which were concerned with an alleged incompetence of the judges. In the Czech Republic, President Klaus’s presidential era was notably marked by long-­term difficulties in striking a deal with the Senate over the appointment of the judges to the Constitutional Court. Given the fact that the Senate rejected several of Klaus’s nominees (as they were either not competent or were ethically unsuitable due to their activities as lawyers and politicians), and Klaus did not propose further candidates, the risk of a paralysis within the Constitutional Court increased since the mandates of several of its members were to expire soon (Lidovky, 2013b).18 In Slovakia, a serious debate over the judges in the Constitutional Court likewise emerged. In July 2014, President Kiska refused to appoint five out of the six candidates nominated by parliament to be judges in the Constitutional Court.

Presidential powers in practice   87 Kiska argued that the candidates lacked professional competence (Kiska, 2015; Ústavný súd, 2015a) and asked parliament to nominate other candidates, but the latter declined, arguing it had fulfilled its duty to nominate double the number of candidates for the three vacant positions. However, in 2015 the Constitutional Court cancelled Kiska’s decision not to appoint the judges and ordered him to act (Ústavný súd, 2015a, 2015b). In contrast to previous disputes over the appointment of state officials,19 the Constitutional Court severely limited the president’s discretion as far as the appointment of judges to the Constitutional Court is concerned, as the president is obliged to choose from a pool of candidates selected by parliament (Horváth, 2017: 56–57). Still, Kiska insisted that he had the right to evaluate the quality of the candidates and rejected another two candidates in 2016 (Prezident, 2016). As far as Poland is concerned, there has only been one case in which a sharp dispute came to have a societal and international impact, which concerned the Constitutional Tribunal of 2015–2016 and in 2017. At that time, parliament approved six laws prepared by the ruling Law and Justice party in order to “correct” the position and functioning of the Constitutional Tribunal. However, opponents of these bills argued that they were unconstitutional. However, the affair had no effect on the president’s capabilities regarding the tribunal (the president appoints the president of the Constitutional Tribunal from among the nominees nominated by its members; constitutional judges are elected by the Sejm). On the other hand, the president was involved in the reform and he immediately signed all the controversial bills passed by parliament. President Duda’s behavior contrasts with the steps taken in 2017 when, in the face of mass social protests, he vetoed two of the three controversial bills on judicial reform (the opponents held the bills to be unconstitutional because they violated the principle of the division of power), namely the laws on the Supreme Court of Poland and the National Council of the Judiciary.20 Moreover, there was a conflict over the appointment of members to the board of the central banks in both the Czech Republic and Slovakia. In 2000, Czech President Havel appointed the new governor and vice-­governor of the Czech National Bank. However, Zeman’s cabinet challenged this decision, arguing that the president may only appoint the governor and vice-­governor of the Czech National Bank with the countersignature of a government member, eventually causing them to appeal to the Constitutional Court, which ruled, however, that the president was authorized to appoint the vice-­governor independently, given the practice until then, by which no one had challenged the presidential power to appoint these members (Sládeček et al., 2016: 604–605; Ústavní soud, 2001). In Slovakia, the conflict over appointments to the Slovak National Bank was similarly resolved by a ruling of the Constitutional Court. In June 2006, President Gašparovič ran afoul of the cabinet and parliament when he turned down a proposal from parliament to appoint Vladimír Tvaroška as vice-­governor of the Slovak National Bank (Oravcová, 2016). Dzurinda’s cabinet submitted its request to the Constitutional Court to interpret the respective provision of the constitution and argued that the president had no power to review the competency

88   Presidential powers in practice of the candidate, which was assessed by parliament. The Constitutional Court eventually ruled that the president has the power to reject the candidate if the latter does not meet the conditions for this position required by the law (Ústavný súd, 2009). While there were plenty of conflicts over foreign policy between presidents and governments in all three countries, we mention only two cases here that had constitutional consequences: the Polish case of 2008 and the Czech case of 2005. As far as Poland is concerned, there was a significant and contentious struggle relevant to the position of president as well as for their relations with the prime minister (and the government). The dispute concerned who had the ability to implement the foreign policy of the country, and the symbol of this disagreement orbited around who was a rightful representative of the country at the EU summits. In particular, it was a dispute between President Lech Kaczyński and Prime Minister Donald Tusk over who was the right person to represent Poland at the European Council in October 2008. President Kaczyński expressed his interest in attending the meeting, which was opposed by the government. The whole affair eventually became an undignified scandal about who can use the government aircraft and how to get four (rather than the standard three) places for the Polish delegation. Eventually, the prime minister flew by government aircraft while the president travelled to the meeting in a leased aircraft, and the two Polish constitutional officials attended the Council together.21 Although the whole matter was rather an issue for tabloids (and was a welcome tidbit for the media, which called it “a row about a chair in a plane”) (Dudek, 2016: 604) and lacked merit, it was submitted – at the instigation of Prime Minister Tusk – to the Constitutional Tribunal in May 2009, which decided in the prime minister’s favor in the end. Although the Constitutional Tribunal confirmed that the president had the right to participate in the European Council’s meetings if he so wished, the official position of the country was to be approved by the government and presented by the prime minister at the meetings. The president’s potential participation in the meeting must be preceded by his agreement with the prime minister in order to ensure a unified position on Poland. The Constitutional Tribunal did not exclude the president from implementing the country’s foreign policy in this case, but at the same time it confirmed that the superior qualification belonged to the prime minister (and the government) rather than the president.22 In the Czech Republic, conflicts over foreign policy between the president and the government have been a recurrent feature of politics since the 1990s (e.g., Brunclík, 2008b). However, we only make mention of one that turned into a constitutional issue. President Klaus was a notorious critic of the EU and would systematically cast doubt on the European integration process (Klaus, 2001, 2007, 2011), getting into constant, albeit mostly latent, debates with the ČSSD-led cabinets that were clearly pro-­European. The conflict over the EU issue surfaced in 2005 when Klaus resisted the proposal of the so-­called ­European Constitution. In reaction, Prime Minister Jiří Paroubek threatened to

Presidential powers in practice   89 significantly limit Klaus’s official foreign travels (Brunclík, 2008b: 316–317), but the threat never materialized. One of the most serious constitutional conflicts in Slovakia was related to the appointment of the general prosecutor.23 Iveta Radičová’s cabinet got into a conflict with President Gašparovič, who refused to appoint Jozef Čentéš as the general prosecutor. The government succeeded in pushing through its candidate against the will and the obstruction of the opposition parties in 2011. However, Gašparovič still refused to appoint him, questioning the way the candidate was proposed in parliament. The government finally filed a complaint to the Constitutional Court, which ruled in 2012 that the president is obliged to act. However, the ruling simultaneously allowed the president to reject the proposal if he was able to provide a law-­based rationale for it (Ústavný súd, 2012). In 2013, Gašparovič officially rejected the candidate proposed by the coalition, subsequently announcing that he would not appoint Čentéš (Pravda, 2013), and parliament was forced to nominate another candidate, Jozef Čižnár, whom Gašparovič appointed the same year. In 2014, opposition parties filed a constitutional complaint against Ivan Gašparovič for intentionally violating the constitution. However, the complaint lacked enough support to proceed to the Constitutional Court (Teraz, 2014; Topky, 2014). In 2014, the Constitutional Court abolished the 2012 decision made by Ivan Gašparovič on not appointing Jozef Čentéš as the general prosecutor, arguing that Čentéš’ rights had been violated (Ústavný súd, 2014). *** In contrast to formal presidential capabilities that tend to be constant, the actual constitutional practice, i.e., the actual usage of presidential powers, varies from one incumbent to another. Comparatively, some presidents impose constraints on themselves and may be rather passive by not fully embracing their powers. Others might be much more inclined to use their powers as much as possible, and they might even be tempted to stretch the limits of their powers, even going beyond them at times. There are significant differences in this regard among countries, but also among the presidents of a single country. All in all, Central European presidents have behaved relatively moderately in terms of using legislative powers. A more detailed view of the participation of the presidents in the legislative process shows that there are no persistent ­tendencies in this area. In terms of content, vetoed legislation, initiated bills or bills submitted to the Constitutional Court have been very diverse. Nor can we say (with some exceptions) that the presidents have perceived their participation in the legislative process as their tool, or as their opportunity to meddle in politics in order to increase their or their allies’ political influence. The exceptions to this rule have been several Slovak referenda, some legislative vetoes and some occasional submissions to constitutional courts in all three countries and the legislative initiative in Poland. Presidents in Central Europe have occasionally used their power to deliver speeches to parliament, but again, in most cases,

90   Presidential powers in practice these speeches – although followed by the media with a certain degree of interest – had little actual impact on the government and parliament’s policies. The overall picture of the practice of presidential powers is not significantly different when looking at non-­legislative powers. Generally speaking, the presidents respected parliamentary majorities in the government formation process as well as in the issue of cabinet reshuffles. Only occasionally did Czech presidents and President Wałęsa in Poland make an effort to significantly sway the outcome of the government formation process or the change of government ministers, but usually this occurred at the juncture of a party’s legitimacy crisis. Where a government has an overwhelming majority, the president has accepted the personal policy of the prime minister and has not complicated the process of changing ministers. The generally restrained behavior of Central European presidents can be explained by their constrained formal powers (only a few of them are designed as independent powers) as well as by the barriers erected via other constitutional bodies – notably the government and parliament – that effectively constrain real presidential power. On the other hand, one can identify various constitutional conflicts that were mostly concerned with presidential appointments. The conflicts resulted from a mix of factors ranging from ill-­written constitutional provisions to policy disagreements and personal disputes. In all three countries, the constitutional courts occasionally (in Slovakia frequently) played a highly important role in constitutional and political battles (in which the president was involved), and their rulings significantly shaped the outcomes of these battles.

Notes   1 We do not discuss the issue of ratifying international treaties as Central European presidents impose important constraints on themselves and there has been almost no conflict over the issue. The presidents lack capacities in terms of other formal powers and in terms of personnel to effectively impact the process of the negotiation and ratification of international treaties. Moreover, Central European presidents use their power to delegate this right to the government. We refer here only to the second Czech president, Václav Klaus, who used this power with far-­reaching consequences. Klaus made no secret about his Eurosceptical views and originally refused to sign the Lisbon Treaty. He did so in 2009, but only after a promise of an exception from the EU Charter on Fundamental Rights and after a ruling of the Constitutional Court on this matter (Klaus, 2009; Ústavní soud, 2009).   2 So far, there has been only one nationwide referendum in the Czech Republic. It was held in 2003 on the basis of a one-­off constitutional law that allowed Czech citizens to decide on the Czech accession to the European Union. This law gave the president the power to call the referendum (Law, 2002). However, his power was severely limited by the fact that this competence was designed as a duty. The president could only set the date of the referendum within a certain period.   3 The cabinet, however, was supported by the ODS on the basis of the so-­called Opposition Agreement (Kopeček, 2015). Thus, the ČSSD minority cabinet in fact enjoyed a comfortable legislative majority in areas defined by the Opposition Agreement. Havel resented the Opposition Agreement and considered it to be a power cartel with a plethora of negative consequences for governance, political ethics and democracy in the Czech Republic.

Presidential powers in practice   91   4 Rudolfinum is a palace located in the center of Prague. It serves numerous cultural and political purposes. During the First Czechoslovak Republic, it became the seat of the lower parliamentary chamber.   5 In addition, he elaborated open letters (“Lists to Citizens”) to reach the general public. This was another way that his public expressions sought to bypass the government-­ sponsored blocking of information coming from the president (Spáč, 2013: 130).   6 The referendum originally included four questions apart from the question on direct elections, which was eventually deleted from the ballots: citizens were also supposed to decide on Slovakia’s NATO membership, the deployment of nuclear weapons within Slovak territory and the placement of foreign military bases within Slovak territory (Mesežnikov and Bútora, 1997).   7 More than half of the voters are required to attend the referenda in Poland. The turnout in the 1997 constitutional referendum did not reach this level, but it did not matter because the referendum was held in accordance with a special constitutional law (1992), which did not impose this limitation. It ruled only that the constitution be accepted if a majority of participating citizens endorse the constitution.   8 President Lech Wałęsa called for the referendum to be on November 29, 1995, 10 days after the second round of presidential elections he lost on November 19, 1995. For the presidential decision to call the referendum, see: http://isap.sejm.gov.pl/ Details­Servlet?id=WDU19951380685   9 These cases appeared after the 1998 parliamentary elections won by the ČSSD. At that time, President Havel delayed the appointment of Jan Kavan (minister of foreign affairs) and Václav Grulich (minister of interior). Both of their reputations were somewhat tarnished. Václav Klaus delayed appointments by the ČSSD cabinets between 2002 and 2006. In 2003, he questioned the language competences of one of the ministers. In 2005, he did not want to appoint David Rath as the minister of healthcare given the fact that Rath was at the same time the president of the Czech Medical Chamber, which would lead to a conflict of interest. Only after Rath had resigned from his presidency at the Czech Medical Chamber did Klaus appoint him. Klaus also questioned a few minister candidates of the ODS cabinets. He objected to the nomination of Karel Schwarzenberg for the position of minister of foreign affairs. Later, he took a similar position towards two other government members, but he eventually did not veto any of them. After 2013, President Zeman questioned several nominees for Sobotka’s newly established cabinet. Zeman was talking about lack of publication activities, political experience, managerial skills etc., but he eventually did not block the appointment of any of them (see Brunclík and Kubát, 2017; Kopeček and Mlejnek, 2013; Müllerová, 2014). 10 For example, President Gašparovič delayed the appointment of the new minister of culture in 2005. The president questioned the competence and skills of the candidate and that Prime Minister Dzurinda did not consult on this change with him, but since there was no policy or personal conflict, Gašparovič eventually appointed the candidate (Mesežnikov, 2006: 29–30). 11 Only after the 1999 amendment was adopted was the president from then on obliged to comply with the prime minister’s request to recall government members (Kanárik, 2009: 237; Orosz et al., 2009: 118). 12 For a detailed analysis of the governments of that time, see Jednaka (2004). 13 The 1997 Constitution introduced a similarly coherent procedure. 14 “The Prime Minister shall lay a motion to appoint the Ministers of Foreign Affairs, of National Defense and of Internal Affairs after consultation with the President.” 15 Marek Belka was appointed prime minister on May 2, 2004, and on May 14 he did not win the vote of confidence held by the Sejm. Afterwards, the Sejm did not use the opportunity to elect the prime minister (it did not nominate any candidate at all); therefore, on June 11, the president again named Belka as the prime minister. This time, Belka was successful and received a vote of confidence on June 24 (Dudek, 2016: 504–506; Kubát, 2006: 173).

92   Presidential powers in practice 16 However, it should be recalled that in Poland there is an individual political responsibility of the members of the government towards the Sejm. This means that if the Sejm expresses no confidence by an absolute majority of all deputies in an individual minister, he is obliged to leave his office, regardless of the prime minister’s opinion on the matter. In practice, however, this does not happen; attempts by the opposition to remove ministers through this procedure have not so far been successful. 17 www.prezydent.pl 18 Another constitutional conflict was related to President Klaus’s recalling of the chair of the Supreme Court, Iva Brožová, in 2006. Klaus used the information provided by the Ministry of Justice, which strongly criticized the quality of the court’s work. Brožová was, however, supported by the Constitutional Court, which ruled that the recall was unlawful, and Brožová remained in place (Česká televize, 2015). 19 E.g., the conflict over appointment of the general prosecutor – see p. 89. 20 www.prezydent.pl/prawo/ustawy/zawetowane/ 21 www.polityka.pl/tygodnikpolitka/kraj/270698,1,spor-­premiera-i-­prezydenta-o-­szczyt-ue. read 22 http://trybunal.gov.pl/rozprawy/komunikaty-­prasowe/komunikaty-­po/art/2930-spor-­ kompetencyjny-dotyczacy-­okreslenia-centralnego-­konstytucyjnego-organu-­panstwaktory-­upraw/ 23 The general prosecutor is appointed by the president at the proposal of parliament (art. 150).

5 Accountability

With a few exceptions, presidents of democratic regimes, regardless of type, do not bear political accountability, meaning that it is not possible to recall the president for political reasons. In parliamentary regimes, traditionally with indirectly elected presidents (more recently with directly elected presidents in some cases), the question of their political accountability has been solved by the operation of the countersignature, meaning those who countersign decisions of the president (prime minister or a minister) bear the responsibility for the decisions before parliament. In regimes with directly elected presidents, their political accountability can be additionally exercised through general elections, when voters can either confirm or reject an incumbent president. In this respect, presidents are almost completely politically unaccountable if they do not run for re-­ election or if they are serving their second term of office, when they are not allowed to run for another term. In contrast, presidents tend to be constitutionally accountable, meaning that they are held accountable for any constitutional or lawful violations or in case of committing such acts as (high) treason. In these cases, constitutional accountability is usually exercised by parliament, a court of law (constitutional or supreme court) or a special body designated for it (Dziemidok-­Olszewska, 2012; Stein, 2009). The question of accountability for Central European presidents is interesting and unusual from at least three distinct points of view. First of all, we find a comparatively rare degree of political accountability for the president (Slovakia). Second, we find a special institution to which the president (and other constitutional actors) is constitutionally accountable (Poland). Third, in the Czech Republic, (unsuccessful) attempts to hold presidents constitutionally accountable have become a tool for influencing presidential behavior, notably in providing parliament with a stick either against a lack of activity or against steps taken by the president on certain important issues deemed to be too controversial.

5.1  Czech Republic The president in the Czech Republic is not politically accountable for his acts, with the Czech Constitution stating that the president shall “not be responsible

94   Accountability for the performance of his duties” (art. 54), whereas the government is accountable for the majority of the decisions of the president (art. 63). The Czech Constitution, however, includes a comparatively common procedure of impeachment that allows the polity to get rid of the president. This procedure may be launched only in exceptional cases1 of serious offenses. The Czech Constitution quite generally specifies “high treason, gross violation of the Constitution or other segment of the constitutional order” (art. 65). Impeachment procedures start with a motion in the Senate, which “may, with the consent of the Chamber of Deputies, file a constitutional charge against the president” (art. 65). The constitution requires that the filing of the constitutional charge be supported by at least a three-­fifths majority of present senators. In order for the constitutional charge to reach the Constitutional Court, the Chamber of Deputies must provide their consent by at least a three-­fifths majority of all deputies (art. 65). A successful impeachment means the loss of the presidential post along with any eligibility in regaining this post. This particular provision of the constitution was adopted together with another constitutional amendment (2012) introducing the direct election of the president. On the one hand, the scope of acts for which the president may be prosecuted was slightly enlarged (the original text of the constitution mentioned only “high treason”). On the other hand, filing the charge against the president was made much more difficult to achieve. For starters, the original text of the constitution involved only the Senate, not the Chamber of Deputies, in the impeachment procedure. Second, in contrast to the previous regulation, which required only a simple majority (of present senators), a three-­fifths majority is now needed to approve of the charge. This constitutional change was criticized because the president is now strengthened by a direct election, which naturally boosts the legitimacy of the incumbent; nevertheless, the impeachment of the president has become much more complicated and burdensome (Wintr, 2015). In practice, impeachment procedures have only been initiated a few times, and only in one case did the charges eventually reach the Constitutional Court. Other initiatives to impeach the president were shipwrecked in the Senate. In 2004, Senator Zdeněk Bárta made an effort to gather enough support for his proposal to impeach President Klaus for not proposing a further candidate for judge in the Constitutional Court, thus putting the Constitutional Court in danger of soon becoming unable to pass decisions (Kopeček, 2012: 162–163 and 235; see also section 4.3). Later, there were two initiatives to impeach President Zeman. In 2015, the Senate was petitioned to trigger a process of impeachment against the president for high treason as the petitioners argued that Zeman’s views on EU’s sanctions against Russia for Russia’s annexation of Crimea and its involvement in the war in Ukraine indicated that Zeman “acted in the interest of Vladimir Putin’s regime rather than in the interest of the Czech Republic and its allies” (Lidovky, 2015). Later in 2017, when President Zeman was reluctant to accept Prime Minister Sobotka’s proposal to recall the minister of finance (see Chapter 4), a group of senators elaborated a draft of constitutional complaint against Zeman for breaking

Accountability   95 the constitution (Lidovky, 2017). Before the complaint was submitted to the Constitutional Court, Zeman eventually retreated by accepting Sobotka’s proposal and recalling Babiš from office. However, only the March 2013 initiative to impeach the president found enough support in the Senate for the Constitutional Court to deal with the proposal. In March 2013, the Senate officially filed a constitutional charge against Klaus for high treason. The Senate accused the president of five delicts: (1) inactivity in the process of ratifying the Additional Protocol of the European Social Charter; (2) not accomplishing the ratification process of the Treaty Establishing the European Stability Mechanism; (3) the highly controversial amnesty issued in January 2013; (4) not proposing further candidates for judge in the Constitutional Court; and (5) not respecting a court’s decision to appoint a judge of a district court (Ústavní soud, 2013). However, the Constitutional Court stopped this process, arguing that Klaus’s mandate was already over (Ústavní soud, 2013). This was the only case where the Constitutional Court had to deal with such a charge.

5.2  Slovakia Unlike the Czech Constitution, the Slovak Constitution lacks a precise provision on the accountability of the president, whereas the government is explicitly held responsible for the decisions of the president in cases of shared powers (art. 102). In addition, the constitution includes certain provisions implicitly suggesting the president’s political accountability to parliament. There is a comparatively rare provision that regulates parliament’s power to recall the president (art.  84 and 106; Malová, 2001: 363).2 Recalling the president, however, is conditioned by a plebiscite (art. 106),3 which is triggered by a resolution of parliament adopted by at least a three-­fifths majority of all MPs. This resolution is then submitted to a national plebiscite, according to which the president is finally recalled if an absolute majority of all legitimate voters vote for such a recall. However, if this quorum is not reached, the president dissolves parliament and the mandate is renewed (art. 106). Although this procedure has never been launched, some authors are highly critical of this constitutional provision and consider the model of political accountability of the president to the National Council as “unacceptable in the parliamentary system” (Valko, 1994: 316). As in the Czech Republic, the Slovak president may be recalled through an impeachment procedure, yet only in highly exceptional cases. The Slovak Constitution states that the president may be prosecuted only for “a willful infringement of the Constitution or for treason” (art.  107). Also similar to the Czech Republic, the success of impeachment procedures means the loss of the presidential mandate as well as any further eligibility for office, though the Slovak impeachment procedure is more straightforward than the Czech one. The prosecution may be initiated by parliament, which is required to pass such a motion by a three-­fifths majority of all its members. The decision on the loss of

96   Accountability the presidential mandate is then up to the Constitutional Court (art. 107), which may issue a condemnatory decision. Only in the 1990s were there any attempts, directed at President Kováč, to oust the president from office. However, the ruling coalition lacked the three-­ fifths majority to impeach the president and thus resorted to highly dubious methods to get rid of Kováč. In June 1995, it made a somewhat desperate attempt to recall the president through a vote of no confidence, although it had neither constitutional backing nor legal implications. The move heightened political tensions in the country (Fisher, 1995).

5.3  Poland Poland is a very peculiar case in terms of constitutional provisions regulating constitutional accountability of the president (there is no political accountability of the president in Poland),4 who is constitutionally accountable to a special institution called the Tribunal of State. The constitution clearly states: “The President of the Republic may be held accountable before the Tribunal of State for an infringement of the Constitution or statute or for commission of an offence” (art. 145). The motion for the prosecution of the president must be submitted by at least a quarter of MPs and approved by at least two-­thirds of all members of the National Assembly (the Sejm and the Senate together). If the National Assembly approves the indictment, the president shall be suspended from his office; however, this does not mean that he is recalled from office. In such a case, his powers are temporarily taken over by the marshal (chairman) of the Sejm. That said, this has never happened. There are other constitutional institutions that are constitutionally accountable to the Tribunal of State in the case of a violation of the constitution or a law when carrying out their functions. These are the prime minister and members of the Council of Ministers, the president of the National Bank of Poland, the president of the Supreme Chamber of Control, members of the National Council of Radio Broadcasting and Television, the commander-­in-chief of the Armed Forces and any person to whom the prime minister has granted powers of management over a ministry (art. 198). Members of the Sejm as well as senators are also constitutionally accountable to the Tribunal of State if they break a constitutional provision, which does not permit them “to perform any business activity involving any benefit derived from the property of the State Treasury or local government or to acquire such property” (art. 107). The Tribunal of State may decide to waive active and passive voting rights, prohibit the appointment of senior officials in the state administration, removing all or some of the honors or honorary titles and retract the eligibility for their acquisition. Additionally, the Tribunal of State may decide on the guilt of the president, but it may not impose any penalty. The decision of guilt automatically means a loss of office, including the presidential office, which results in scheduling an early presidential election.

Accountability   97 The Tribunal of State consists of the chairman, two vice-­presidents and 16 members appointed by the Sejm for the period of its term of office. The president of the tribunal is ex officio the president of the Supreme Court. The vice-­ chairmen and at least half of the members must have the qualifications required for the performance of judge. The Tribunal of State is a specific historical institution5 and works only in highly exceptional cases in practice. Its significance rests primarily on its “symbolic-­preventive” role (Majchrowski, 2004: 314). Since 1989, it has only launched its activities four times, but not once in connection with the activities of the president. It issued its ruling only once in 1997 as a result of the so-­ called alcoholic affair (the illegal importation of alcohol, resulting in large-­ scale tax evasion). The Tribunal of State then sentenced former Minister of Foreign Trade Dominik Jastrzębski (1988–1989) and former Head of the Customs Office Jerzy Ćwiek to be stripped of their passive voting rights for presidential, parliamentary and municipal elections for a period of five years and forbade them from holding a leading position in the state administration for the same period (Zaleśny, 2004: 59–145). *** All in all, Central European presidents can be quite sure that they will serve the entirety of their term in office once elected as they may be recalled only for a relatively limited scope of reasons. Also, the formal procedures make successful recall difficult. In practice serious initiatives to recall the president have been very few and far between, and even in the Czech Republic, where several attempts were made to recall Presidents Klaus and Zeman, the initiatives had little chance of succeeding. On the other hand, the importance of the procedures that allow the recall of the president resides in their preventive and symbolic function. In the Czech Republic, it has served as a tool to publicly point out and put a stop to any unacceptable behavior by the president and, consequently, to delineate the scope of the constitutionally acceptable role of the president.

Notes 1 The Czech Constitution explicitly states that the president “may not be taken into detention, criminally prosecuted nor prosecuted for misdemeanors or other administrative offenses while in office” (art. 65). 2 Moreover, the original constitutional proposal included another provision that explicitly stated that the president is accountable to parliament, but this provision was removed from the draft of the constitution in the end (Orosz et al., 2009: 38). 3 Prior to the implementation of direct presidential elections, the president could be impeached by a three-­fifths majority of all the members of the National Council (Horváth, 2005: 11). 4 Some Polish authors speculate about a special type of political accountability for the president in that if an indictment is brought by parliament and is concerned with a ­violation of the constitution, such as the overuse of his abilities, it is a political rather than a criminal question (Dudek, 2013: 71). Such an interpretation is possible but

98   Accountability e­ xaggerated. The purpose of political accountability is to hold an actor responsible for his political activities. However, this fact is unrelated to the problem of violating the constitution or laws. Political decisions that fit into the constitutional framework of the country can vary significantly and can even be contradictory. In this sense, it is necessary to talk about the political responsibility of the government, which can at any time be recalled purely for political reasons, a step for which parliament does not need to justify itself. 5 The Tribunal of State existed in interwar Poland (where it acted only once, in 1929); after World War II, it was not restored. Its re-­establishment only took place in 1982; that is to say, it returned during the Communist period of the Polish People’s Republic.

6 Beyond constitutions Other factors affecting presidential power

It is beyond a doubt that the overall power of presidents rests only partly on formal constitutional powers. Thus, it would not necessarily be misleading, but certainly incomplete and imprecise, to discuss the issue of presidential powers solely in terms of formal constitutional competences. As a result, in this chapter, we pay particular attention to other factors that make the picture of presidential powers (almost) complete. We claim that four factors are relevant to this analysis: past legacies (i.e., historical traditions of the presidency), the popularity of presidents and public expectations from them, the president’s relationship to parties and the popular election of the president.

6.1  Past legacies One of the branches of the so-­called new institutionalism says that institutions and their functioning capacities are heavily influenced by historical developments (Hall and Taylor, 1996; March and Olsen, 1984). This means that if we want to understand the specifics of glance, it seems that this is not of much concern to Central Europe because, an institution, we should take into account how it evolved over time and what historical heritage it proceeds from. At first unlike most Western European countries, there is a lack of an uninterrupted tradition of democracy in the region. The same thing applies to the presidency as a constitutional institution. As is generally known, only Czechoslovakia maintained this institution throughout the twentieth century, since the foundation of Czechoslovakia in 1918. The institution remained in place even at the time of Communist rule when the presidents in East Central Europe were, according to the Soviet model, overwhelmingly superseded by the collective heads of state or state councils (Crampton, 1994; Schöpflin, 1993; Zdobinský et al., 1988). Yet the historical tradition of the presidency exists in Central Europe; not only that, in some cases it has a significant impact on the current position and role of the presidential office (see also Chapter 2). 6.1.1  Czech Republic This is especially true of the Czech Republic, where presidents have traditionally enjoyed extraordinary authority,1 even though they have had little political power

100   Beyond constitutions based in the executive branch. The Czech presidency is heavily influenced by historical, political and cultural circumstances, which can be divided into six interconnected circles: the elite character of the presidential office; the weakness of liberalism; the ceremonial character of the presidential office; the gap between the constitution and constitutional practice; the role of the president during times of crisis; and the constitutional political traditions (cf. Brunclík and Kubát, 2017). First of all, it can be noted that the history of the Czechoslovak and Czech presidency is, in an otherwise rather egalitarian society, an example of “political elites” in the true sense of the word.2 These elites are the result of important historical moments: the Czechoslovak Republic and its founder, President Tomáš G. Masaryk, along with his successor Edvard Beneš,3 General Ludvík Svoboda as a hero of World War II and one of the symbols of the Prague Spring of 1968, Václav Havel as the victor over Czechoslovak Communism and Václav Klaus as the main figure of the transformation of the 1990s. The second circumstance influencing the specific position of the president in the Czech Republic can be considered the weakness of Czech liberalism (Pithart, 2014). It is a bit paradoxical because the Czech Republic (or perhaps the Czech nation) is proud of its liberal and “democratic tradition,” which is associated primarily with the First Republic of Czechoslovakia, the only Central European country that preserved democracy throughout its existence between the two world wars, but also with Austria-­Hungary, where Czechs were supposedly the most democratic nation in the nineteenth century (which was in fact far from reality) (Holý, 2010: 87). Some authors even associate parliamentary democracy – positively, of course – with the Czech mentality (Pehe, 2010: 25). Yet the reality of the situation is strikingly different than such an image would suggest. In the nineteenth century, Czech society was considerably subjugated, which, among other things, manifested itself in the undemocratic internal life of associations and political parties where the cult of the forefathers and their authority prevailed (Podiven, 1991: 540). This can further be translated into the relationship of Czech society with its presidents, whose roots not only consist in the worship of “Daddy” Masaryk but can also be found in the nineteenth century, when Emperor Franz Joseph I was venerated, both by society in general and by the then contemporaneous Czech political representation that did not trust parliamentary procedures and constantly relied on imperial authority in its struggle for Czech national interests (Rak, 2013: 172–175). After the fall of the Austro-­ Hungarian monarchy, President T.  G. Masaryk came to replace the monarch. Again, it must be emphasized that what matters is not just the president’s general popularity but the wider “non-­liberal” political attitude of Czech society. The Czech historian Jiří Rak (2013: 418) drew attention to this phenomenon: “The praising texts on both Franz Josef and Masaryk share ignorance of constitutional political mechanisms. It is suggested to readers that the welfare of the state depends almost exclusively on the personal engagement of the ruler.” Third, the specific character of presidential power emanates from ceremonies related to the execution of the presidential function as well. As Jan Kysela points out, 

Beyond constitutions   101 The President is seated at the royal castle, he has its own standard and military guards, on ceremonial occasions his arrival is heralded by a fanfare of “Libuše”4 … the head of state’s portraits adorn school classrooms and various state’s offices, disgruntled citizens have traditionally sought rectifications of injustices of all sorts at the presidential office … etc. (Kysela, 2006: 14) Probably the most important part of these ceremonies is Prague Castle, which is one of the largest castles in the world as well as assuredly the most important castle in the Czech Republic. It was a traditional seat of Czech princes, kings and emperors. It also became a seat of the emperor of the Holy Roman Empire on two occasions. Later on, it became the symbol of Czech statehood. Moreover, it is located above Prague and became “a generally intelligible symbol, which strengthens and in a way even legitimizes the power of those, who are seated there” (Pithart, 2014: 13; see also Klimek, 1996: 85–86; Kopeček and Mlejnek, 2013: 36).5 Fourth, there has been a contrast between formal presidential powers and de facto constitutional practices. The Czechoslovak constitution makers had never conceived of the head of state as a ruling president with wide executive powers to implement his own political agenda (Kopecký, 2001a: 43; Wintr, 2015: 67). Since 1920, all constitutions have designed the president as a more or less symbolic head of state whose role was not to rule but to represent the state externally and within the political system. However, the constitutional and political practices of presidents since then have become somewhat more complex and, in any case, went beyond the relatively narrow limits defined by constitutional texts.6 The Czechoslovak and Czech presidents often possessed a relatively large amount of political or social authority and influence, allowing them to play a more decisive role in the country’s political system than could be derived from the constitutional texts. Thus, a certain contradiction between constitutional text and political practice had historically existed (Kysela, 2008a; Pithart, 2014). Fifth, interwar Czechoslovakia gave rise to a tradition of the president as an arbiter in times of crisis. Leaving aside the critical and fatal crises that have threatened Czech statehood and national independence, such as the 1938 Munich Treaty, the 1948 government crisis that meant a Communist takeover, or even the Warsaw Pact invasion of Czechoslovakia in 1968, the typical situations implied here were governmental crises. During these periods, the president was often as involved as an important political actor in helping overcome the crisis. Occasionally, the governmental crisis was solved by technocratic cabinets whose tradition dates back to interwar Czechoslovakia (1920–1921, 1926 and 1938) (Brunclík, 2016; Hloušek and Kopeček, 2014). After 1989, the Czech Republic witnessed three technocratic governments: Josef Tošovský (1998), Jan Fischer (2009–2010) and Jiří Rusnok (2013–2014), two of which – Tošovský’s and especially Rusnok’s governments – were appointed under the direct patronage of the Czech president (Brunclík and Kubát, 2017: 95). It is worth mentioning that these “presidential governments” or a “government of experts” often enjoyed

102   Beyond constitutions relatively high public support, higher than party governments (Hanley, 2018; Pospíšilová, 2015). 6.1.2  Slovakia It is noteworthy, though understandable, that the above circumstances relevant for the Czech Republic do not play a role in Slovakia, even though Slovakia formed one country with the Czech Republic throughout the twentieth century.7 The Slovak relationship to the First Czechoslovak Republic is ambivalent, and Slovaks do not share the Czech adoration for interwar Czechoslovakia (Bútorová and Gyárfášová, 2008; see also Chapter 2). In contrast to the Czech Republic, Slovak political elites and the general public lacked a commonly accepted and unambiguous tradition upon which the new state could draw, and the interwar presidents could hardly become worthy of emulation in Slovakia (Bútorová and Gyárfášová, 2008: 249). Masaryk and Beneš were regarded as Czech presidents, symbols of Czech “centralism” during the Czechoslovak era. All in all, there is much less continuity between the Slovak presidency and the Czechoslovak presidency than might initially be expected. Thus, “The position of the Slovak President was largely formulated afresh” (Spáč, 2013: 140). This statement can be taken literally too. Whereas the government and the parliament of Slovakia were transferred from the Slovak bodies within federal institutions, the institution of the Slovak presidency had to be built from scratch, which included the initial problems of securing the staff and locating an office for the president (Kopeček, 2008: 176–177).8 The Slovak Republic did not adopt a highly ceremonial style of presidency. The institution of the presidency has consequently become more “civilian” in nature. The seat of the Slovak president is an illustrative example. The Slovak president was originally based at Bratislava Castle, but his office was located on premises that were owned by parliament. However, when Michal Kováč was elected president in 1993, he almost immediately came into sharp conflict with the Mečiar government, resulting in Kováč leaving Bratislava Castle in December 1993. It was only in 1996 that Kováč finally moved into Grassalkovich Palace in the city center (Kopeček, 2008: 175; Kováč, 2010: 96). It can be added that this palace used to be the seat of President Tiso during the era of the so-­called Slovak State, the puppet-­state of Nazi Germany (Pešeková, 2011: 103). Thus, Slovak presidents cannot boast of a seat of equal importance to the Czechs’ Prague Castle. 6.1.3  Poland The Polish presidency is more akin to the Slovak than to the Czech presidency. The Polish president is also a “common” and civilian institution, lacking the Czech ceremony. However, the historical development of the Polish presidency is complicated and quite different from that of Czechoslovakia. In Poland, there are two opposing traditions. On the one hand, there is the tradition of strongly

Beyond constitutions   103 personalizing politics while, on the other hand, there is the tradition of a weak presidency. The tradition of personalization lies in a reliance on leading figures in difficult times of political crisis, in a state crisis as such or in attempts to overcome the traditional fragmentation of Polish politics. Considering the very different historical and political circumstances, such names as Leader of the Uprising Tadeusz Kościuszko, Chief of State Józef Piłsudski, General Wojciech Jaruzelski or Solidarity leader and President Lech Wałęsa can be mentioned in this context. The second tradition is that of a weak presidency. Since the interwar period, the president has always been a less important component of the political system, irrespective of the changing constitutional and political circumstances. Even in the period of the authoritarian regime (1926–1939), which was systemically built and centered on the institution of the president (mainly after the adoption of the Constitution of 1935), the president’s office was not where decisions were made. The president – albeit formally the most powerful man in the regime, according to the 1935 Constitution – was obedient to the real dictator, who came from the army (Piłsudski, Edward Rydz-­Śmigły). The emigration presidents (1939–1990) as well as the only Communist president (Bolesław Bierut, 1947–1952) did not play a role in shaping the tradition of the presidency due to their specificity. What is more, from 1952 to 1989 the institution of the president did not exist at all (Kubát, 2006). The importance of the presidency after 1989 stems not so much from (essentially non-­existent) historical traditions as from actual and constitutional circumstances. The debate on historical traditions, which could eventually be an argument for strengthening the Polish president’s importance in Poland, did not take place, and President Lech Wałęsa (1990–1995), who was the only president seeking to overcome his own political and constitutional shadow, did not use the historical traditions in his argumentation. If we are to look for leaders in contemporary Polish politics, they are not presidents but rather prime ministers or party leaders, with the best example being Law and Justice (PiS) chairman Jarosław Kaczyński (2003–). However, he rather embodies the first tradition ‒ i.e., the tradition of personalizing politics ‒ and is not in the presidential tradition. *** Comparing Central European presidents through the perspective of past legacies, we see enormous fluctuations. On the one hand, there is the rich Czechoslovak historical tradition of influential presidencies, which, however, has only affected the Czech Republic. Although Slovakia is also a successor state of Czechoslovakia, it does not continue the tradition that is related to an overall negative attitude towards the Czechoslovak historical heritage. The short presidential tradition of the wartime Slovak Republic (1939–1945), for understandable reasons, was not possible to reappropriate after 1993. In contrast, Poland has no such important traditions to follow, and the institution of the president was formed ad hoc in

104   Beyond constitutions 1989, later being further shaped depending on political and constitutional circumstances.

6.2  Popularity and expectations In this section, we explore how the general public in the three countries perceives the president. We also try to infer from this fact some conclusions about the placement of power when it comes to this office. The conclusions are also relevant to the debates on giving the president increased powers. It should be emphasized that our conclusions are tentative because the surveys referred to in this section were elaborated by different national public survey agencies using diverse methodologies including distinct sets of questions. In addition, some of the surveys do not systematically cover the period following the 1989 revolutions in its entirety. Perhaps the most comprehensive set of data can be found for the Czech presidency. The data includes surveys on trust in the presidency as an institution as well as the individual presidents. In addition, there have been surveys evaluating particular presidents and on the appropriate role of the president in the Czech political system. In Poland, surveys have been carried out to measure the level of trust in individual holders of the office but not in the presidency as an institution. Polish surveys are additionally concerned with the issue of public opinion concerning the activities of the president in comparison to other constitutional bodies. In Slovakia, we have relatively complex data on the level of trust in the president as a person holding office only after 1999. To a large extent in the Czech Republic, to some extent in Poland and to a very small extent in Slovakia, we can draw from surveys related to the issue of an ideal of the presidency, i.e., the appropriate political and constitutional role the president is supposed to play and if this role should change in line with the general public’s expectations. Despite the incompatibility of the national surveys, the surveys we use do have a telling value and provide a comprehensive picture of how the presidents in Central Europe are perceived by the general public from different angles. As a basis for tentative comparative conclusions, they are usable and useful. 6.2.1  Czech Republic In the Czech Republic,9 the president has traditionally enjoyed a high level of trust from the general public, and in most cases the level is higher than that of other constitutional institutions (e.g., Kunštát, 2014: 146). Despite occasional fluctuations and downturns, the Czech president has generally and persistently enjoyed a relatively high level of trust among the general public, usually somewhere between 50 percent and 60 percent, and it has occasionally even exceeded 70 percent10 (Červenka, 2017; Horáková, 2004, 2006; Kunštát, 2002). Only Miloš Zeman’s popularity has been somewhat lower over the course of his term (2013–2018), and several times it even dropped below 40 percent (Červenka, 2017: 1–2). His term in office was affected by a number of events. In particular,

Beyond constitutions   105 his popularity suffered due to a number of scandalous, embarrassing or rude statements, and the public’s esteem for him has also taken a hit because of his controversial balancing act on the edge of constitutionality (see Chapter 4). Apart from the surveys on trust in the presidency as an institution, there were also surveys on the amount of trust in individual politicians. It is interesting to note that the presidency as an institution usually scored better than individual presidents’ political personalities. For example, Miloš Zeman as a politician was trusted by about 40 percent of the general public in January 2015 and by about 46 percent in October 2015, whereas the Czech presidency was trusted by 44 percent of respondents in January 2015 and by 51 percent in October 2015 (see Červenka, 2016a, 2016b). There have also been surveys on how citizens evaluate the performance of individual presidents according to various aspects. Here, too, the evaluations have varied over time, most notably during Klaus’s presidency. President Havel was (not surprisingly) the most highly regarded president in terms of representing the country abroad. Klaus performed best in executing constitutional duties, and Zeman was most positively evaluated as a president who was in touch with citizens and understood their problems (for details see Čadová, 2017a). Some of these aspects are summarized in Table 6.1. Apart from the issues of popularity and evaluation, there were surveys on the expected role of the president. A significant part of the general public supports the specific idea of a president who is “above parties.” Some 32 percent of respondents agreed that the president should be non-­partisan and 12 percent of  people said that the president should stay out of politics. Only 2 percent of people thought that the president should be a partisan leader, with 6 percent preferring the president to be a party member. For the rest of the 42 percent of respondents, the question of the partisanship/non-­partisanship of the president was not a crucial feature, and these figures have been quite consistent over the last 15 years (Pilecká, 2017). Another survey made by the same agency showed additional feedback on this subject. Most respondents (74 percent) agreed that the president should solve particular political issues either occasionally or always. Only 18 percent claimed that the president should be devoted to general and moral issues. On the other hand, the Czech public is reluctant to give the president greater powers, with more than 50 percent of respondents stating that presidential powers should not be expanded (Čadová, 2017b). As far as the president’s relationship with the government is concerned, only 13 percent agreed that the president should preside over the government. In contrast, 22 percent claimed that the president should not intervene in the government at all and 59 percent agreed that the president should do so only on a limited basis (Čadová, 2017b). To sum up, the general public wants a directly elected, non-­partisan president who will solve daily political issues, which is an idea that can be traced back to Masaryk. However, the president should not be a ruling president with greater powers. In fact, the general public believes presidential powers should not be changed.

62–70 60–84 53–68

76–82 54–86 33–52

Representing the country abroad 33–56 39–55 39–59

Influencing domestic politics 47–67 64–89 26–48

Upholding the dignity of the presidential office

23–41 21–44 52–70

Being in touch with people

Note The table shows percentages (the lowest and highest values during a period) of people who claimed that the president was doing their job in various respects in a “very good” or “rather good” manner. The figures reflect the years 1997–2002 for Václav Havel, 2004–2013 for Václav Klaus and 2014–2017 for Miloš Zeman.

Source: Čadová (2017a).

Václav Havel Václav Klaus Miloš Zeman

Executing constitutional competences

Table 6.1  Evaluation of the performance of the Czech presidents

Beyond constitutions   107 6.2.2  Slovakia As far as the Slovak presidency is concerned, no systematic data on the credibility of the Slovak president is available prior to 1999 (Gyárfášová and Velšic, 2002: 208–209); we have only limited data for the period before 1999. One of the polls from December 1995 showed that the first Slovak president, Michal Kováč (1993–1998), did not enjoy a high level of trust among the general public. At that time, the public trust in President Kováč was only 16 percent, compared with 22 percent for Prime Minister Vladimír Mečiar (Brown, 1996: 33). This was perhaps because he was constantly embroiled in fierce disagreements over policies with Mečiar (see Chapter 4). Only since May 1999, when the first direct presidential elections took place, have there been more systematic surveys of various constitutional institutions, including the presidency. In general, the presidency has enjoyed considerable authority among the Slovak public.11 In 1999, the presidency became the most trusted constitutional institution with over 60 percent of respondents trusting in the president.12 Similar to the Czech Republic, the degree of trust in the president has consistently been over 60 percent in general and even over 70 percent (2014–2015) in the last decade or so according to surveys by FOCUS (Slosiarik, 2005, 2014, 2015a, 2015b, 2016a, 2016b). However, this figure has plummeted on occasion. For example, it dropped to only 34 percent in the summer of 2001.13 The level of trust rebounded somewhat in 2002 to about 43 percent, and it reached 44 percent in 2004 (Bútorová, Gyárfášová and Velšic, 2004: 195–196; Gyárfášová and Velšic, 2002, 2003: 226).14 A notable period was when President Ivan Gašparovič entered office, which eventually caused the level of trust to increase again to 69 percent (Bútorová, Gyárfášová and Velšic, 2005: 259). This pattern is also visible with current President Andrej Kiska (Slosiarik, 2016a, 2016b). Unfortunately, in contrast to the Czech case, we lack long-­term data on an ideal presidency. We can only provide some results from a single study from the 2014 presidential elections. The analysis shows that one of the most important reasons that voters chose to cast their ballot for Andrej Kiska was that he was perceived as a “non-­partisan” president, not taking the side of any political party. In addition, almost 90 percent of respondents agreed that Kiska fulfilled this characteristic (vs. 20 percent for Fico), even though only 12 percent agreed that Kiska had any political experience (vs. 98 percent for Fico) (Bútorová and Gyárfášová, 2014). Thus it seems the general public strongly favors non-­partisan presidents. 6.2.3  Poland In the Polish case, we can rely on two types of data derived from long-­term opinion polls that have been carried out by the Public Opinion Research Center (CBOS) since the early 1990s.15 First, these surveys have measured the level of satisfaction with the presidency as an institution. These surveys also reveal the general public’s opinions on the activities of other constitutional institutions

108   Beyond constitutions (mainly parliament and government). It is symptomatic that research on the evaluation of the president’s activities is not carried out on its own ‒ the respondents give their opinion not only on the president but also on other constitutional and state institutions. However, this does not concern the much more significant institution wielding executive power, the government, which is subjected to special surveys.16 Second, there are surveys on public trust in politicians, including the president. This approach itself already indicates that the Polish presidency, unlike the Czech presidency (see previous sub-­section), is not perceived as extraordinary in any sense but as an “ordinary” constitutional institution that does not override others, and the president is perceived as a “normal” politician working among other politicians. This presumption is confirmed by the results of the surveys. The first type of survey shows how the president’s role is assessed. In this framework, Presidents Aleksander Kwaśniewski (1995–2005) and Bronisław Komorowski (2010–2015) received the best evaluation, with positive ratings for their activity prevailing over the negative rating in a ratio of about 60–80 percent (positive) to 10–30 percent (negative) (Kwaśniewski) and 50–70 percent (positive) to 15–25 percent (negative) (Komorowski). Meanwhile, President Lech Kaczyński (2005–2010) and Lech Wałęsa (1990–1995) had the worst evaluations. With Kaczyński, the negative assessment prevailed over the positive one in the ratio of 50–70 percent (negative) to 25–40 percent (positive). In the case of Wałęsa, it is necessary to distinguish the initial period of his presidency in 1991 and the later period in 1992–1995. While in the earlier period Wałęsa enjoyed a very positive assessment ratio at around 60 percent (positive) to 10 percent (negative), the situation soon turned sour and the negative assessment prevailed over the positive one to a ratio of 50–70 percent (negative) to 20–40 percent (positive). This downward curve is related to his highly confrontational political behavior and his ambitions for personal power. Current President Andrzej Duda (2015–) has a more balanced score with a positive rating of about 40–60 percent positive to a negative rating of 20–40 percent.17 These values approximately correspond to the second type of data: trust in politicians. Presidents Aleksander Kwaśniewski and Bronisław Komorowski enjoyed the highest levels of trust among all politicians during their times in office. The trust in Kwaśniewski peaked during his second term (2000–2005), when it reached between 70 and 80 percent (in the first term it was somewhat lower, at 60–80 percent). The level of trust in Komorowski was similar, with about a 60–80 percent positive rating. The lowest levels of trust were unsurprisingly for Presidents Lech Wałęsa and Lech Kaczyński, both of whom had an average confidence rating of 30–60 percent. They were not the most trusted politicians of their times Current President Andrzej Duda enjoys a level of trust between 55 and 65 percent. The Polish case shows that presidents who are rather passive, do not possess great ambitions for power and do not take part in many daily political events (Kwaśniewski, Komorowski, Duda) are on average better rated. On the other hand, presidents engaging in contentious political disputes are rated worse and enjoy a lower level of trust. This was the case of Lech Kaczyński, who backed the Law and Justice party that was controlled by his brother Jarosław. President

Beyond constitutions   109 Kaczyński briefly supported the PiS governments under the leadership of Kazimierz Marcinkiewicz (2005–2006) and then later the government of his brother Jarosław, who was prime minister in 2006–2007. In 2007–2010, his conflicting co-­existence with the Civic Platform (PO) under the leadership of Prime Minister Donald Tusk was rather complicated. The inverse relationship between the level of trust and the activity of the president can be even better illustrated by President Wałęsa, who worked under completely different conditions because the Polish regime was at that time semi-­ presidential, in contrast to the period following the adoption of the 1997 Constitution. Therefore, he could use relatively strong executive powers, which he was constantly trying to expand (Ciapała, 1999; Mojak, 1995). In this context, it is interesting to see how respondents evaluated Wałęsa and his position of power as a president. We can rely on four surveys, one carried out at the beginning (1991) and three at the end (1994, 1995) of Wałęsa’s presidency. The first survey shows that the election of Wałęsa to the presidency was welcomed in Poland. In January 1991, Wałęsa was seen as a high-­caliber president (42 percent) or an average president (29 percent), whereas only a tiny fraction of respondents (4 percent) thought that he would be a bad president. However, respondents had contradictory expectations with regard to the political role and the position of power of the president. On the one hand, they said that the president should be more of an impartial authority that would respect the public, connect society and behave moderately (60–80 percent).18 Only a minority (albeit not negligible) of respondents wished for a principally ruling president who would be involved with day-­to-day political affairs (37 percent) or direct the government (45 percent). About half of the respondents (48 percent) preferred a division of executive power between the president and the government. On the other hand, only a few respondents (3 percent) wanted a so-­called “consultative presidency,” which corresponds to the parliamentary form of government, whereas 22 percent of respondents wanted a “strong presidency,” corresponding to presidentialism, and 75 percent preferred the arrangement combining both models (BS/17/4/91). The second survey, carried out in October 1994, showed that 67 percent of respondents thought the government should be fully governed by the prime minister, 14 percent wanted the prime minister to be controlled by the president and 12 percent thought that the government should be directly managed by the president (the rest did not know) (BS/174/153/94). The third survey, from March of the same year, showed that the president had too much power according to 36 percent of respondents, while 29 percent of respondents said the president had enough power and 22 percent said the president had too little (the rest did not know) (BS/53/47/94). Finally, the fourth survey from January 1995 showed that 35 percent of the respondents wished to extend presidential powers vis-­á-vis the government and 40 percent opposed this idea (the rest did not know) (BS/16/12/95). These surveys show that President Wałęsa created opposing opinions and that he rather divided society through his active and confrontational style. ***

110   Beyond constitutions To conclude this section, we can argue that the level of popularity of the president is mainly related to their constitutional-­political position and behavior, rather than the way in which they are elected. The presidents of Central Europe do not have many independent executive powers within the parliamentary regime to intervene in “day-­to-day politics,” so they are not responsible for the exercise of executive power. Nor are they responsible for any controversial or unpopular measures imposed or proposed by the government. Those presidents who kept out of the conflicts arising between politicians from the government and the opposition remained popular and were able to avoid the “dirtiness” of political struggle. In contrast, presidents entering into the open hostilities of “everyday politics,” and on occasions even initiating them, suffered a drop in their popularity and a loss in confidence from the public (cf. Tavits, 2009: 142–143). Finally, the general public in the three countries has preferred rather moderate, “non-­ruling” presidents. Therefore, presidents who became embroiled in power struggles could not lean on the argument that “the people” wished for a more powerful presidency. All in all, despite the relatively high popularity of the presidents, which has given them a large degree of authority (e.g., in public debates), they cannot use it as a vehicle in power struggles, if they choose to engage in them.

6.3  Relationship to parties One of the key factors that affect the overall powers of the president is their relationship to parliamentary political parties (Duverger, 1978). Thus, in this chapter, we explore the Czech, Slovak and Polish presidents after 1989 in terms of their (non-)partisanship and their relation to political parties. We focus specifically on those parties which were supposed to become the president’s background of power. 6.3.1  Czech Republic The crucial idea that shaped the Czech presidency was the notion of a non-­ partisan president who could manage to be “above parties.”19 This idea, which has played a role in Slovakia too, can be traced back to interwar Czechoslovakia. The idea was also underpinned by the logics of the parliamentary elections of the president that remained in place until 2012. The tradition of the presidency in a liberal democratic regime was revived by Václav Havel, who significantly shaped the general understanding and expectations of the presidential office in Czechoslovakia (president between 1989 and 1992) and the Czech Republic (president in 1993–2003). Havel’s approach to political parties was traditionally reserved.20 He never attempted to found his own political party, nor did he attempt to become a partisan leader.21 Havel’s reluctant approach to political parties did not imply that he completely refrained from influencing partisan politics, nor did it imply that he did not look for allies and friends from among partisan politicians. In fact, he always kept around him

Beyond constitutions   111 several such prominent figures in relevant parliamentary political parties ‒ including the Czech Social Democratic Party (ČSSD), Christian Democrats and Freedom Union. Very often, however, Havel expressed support not for individual political parties but rather for individual politicians as well as political ideas and principles (Kysela, 2006: 18). Havel’s relationship to political parties is peculiar in two other regards. First, Havel repeatedly supported small, outsider parties that even lacked parliamentary representation at times. Second, candidates or parties supported by Havel usually failed in the elections. This phenomenon is commonly known as “the kiss of death” (Jandourek, 2010). The second Czech President, Václav Klaus, entered the presidential office as the former prime minister. His previous partisan career was remarkable. He was the chair of the Civic Forum (OF )22 before becoming the founder of the Civic Democratic Party (ODS), the most important political party of the 1990s; finally, he went on to become the first prime minister of the Czech Republic in 1992–1997. When he was elected president in 2003, he was still the honorary chairman of the ODS. He has always been a staunch supporter of “classic,” partisan politics; liberal democracies are based on the competition of various political parties, which he saw as primary and perhaps the most legitimate vehicles for citizen participation in politics. His approach diverged significantly from Havel, who did not deny parties as such but whose views on the role of parties was rather restrained, opting to praise the role of civil society instead. It is therefore natural that President Klaus originally rejected the idea of an “above-­ parties” presidency. Indeed, in his candidacy speech in 2003, he claimed that it was irrational to require an “above-­parties” president (Klaus, 2003), though he eventually embraced the idea; in his candidacy speech shortly before his re-­ election in 2008, he claimed that it was the duty of the president to be “above parties” (Klaus, 2008).23 Klaus also gradually distanced himself from the ODS (he gave up his honorary chairmanship in 2008). Although Klaus’s critics claimed that he was still siding with the ODS, Klaus practically cut himself off from the party and sought to be an “all people’s” president (Kopeček, 2016: 19–20). Paradoxically, Klaus somewhat resembled his predecessor in terms of his relationship to political parties. He became one the best-­known personalities of Czech political life, with a number of supporters in society and in some political parties, yet without his own party’s base. In the second term of his presidency, and immediately after it, he quickly became the distributor of the “kiss of death” when his favorite politicians regularly lost in elections of all sorts.24 Like Václav Klaus, the next Czech president, Miloš Zeman, entered party politics in the 1990s, becoming the chairman of the ČSSD and the country’s prime minister in 1998–2002 before retiring. He eventually returned to politics in 2003 when he ran for president but was defeated by Klaus. The surprisingly low number of votes in parliament clearly showed that many of the ČSSD MPs did not vote for him (Hloušek, 2008: 268), which Zeman never forgave. One of these MPs was Bohuslav Sobotka, who became prime minister in 2013.25 Zeman’s complicated and ultimately even openly hostile relationship with Sobotka probably stems from the 2003 presidential elections, following which Zeman yet again retired.

112   Beyond constitutions He did not directly participate in political affairs but occasionally commented on them. However, he did remain a member of the ČSSD, where he retained some influence and had a number of political friends and supporters. His relationship with ČSSD leaders was still rather cold though, and Zeman eventually left the party in 2007 only to return to party politics in 2009–2010 by founding the Citizens’ Rights Party (SPO), which was based on the previously existing group called Friends of Miloš Zeman. Zeman himself became the chairman of the party in March 2010, and it renamed itself the Citizens’ Rights Party – Zeman’s Followers (SPOZ).26 However, in May of the same year, following the party’s defeat in the parliamentary elections, he resigned as party leader and became its honorary chairman. Zeman was often thought of as a possible candidate for the next president, and he would encourage this option on the condition that the popular election of the president was introduced (Novinky, 2011). Thus, when this finally happened, Zeman was not slow to return to high politics, becoming a candidate of the SPOZ to run for president in 2012. All the while he retained considerable influence within the ČSSD, as is evident by the fact that a part of the ČSSD preferred Zeman to be the ČSSD’s candidate for president despite the fact that Jiří Dienstbier became the official ČSSD presidential candidate in May 2012. In the end, Zeman was elected president in January 2013. Even before he was elected president, Zeman had accepted the idea of an “above-­parties” president whose role would mainly be to moderate dialogue between various political actors and interests. He formulated these ideas in his inaugural speech as follows:  As a president, who is not directly or indirectly associated with any parliamentary party, I offer to political parties, if they wish so, the role of mediator and the role of moderator, but in no case the role of a judge, because this role obviously does not fit the president of the republic. (Zeman, 2013) However, Zeman’s statement sharply contradicts his later attempts to build a party powerbase and to take an interactive role in inter-­party conflicts. First, he relied on the SPOZ. However, the party failed dramatically in the 2013 parliamentary election, winning only 1.51 percent of the vote.27 Thus, he made another attempt to form a parliamentary party loyal to him. Since he still had a number of followers in the ČSSD, which claimed a significant electoral victory in the 2013 elections, he tried to take control of the ČSSD through the so-­called “Lány Putsch”28 (Brunclík and Kubát, 2017: 106), but this pursuit failed as well. Zeman thus became an “above-­parties” president “by default.” In any case, this was the first shot at his sought-­after party presidency, which was necessary for him to match his ambitions and plans for obtaining stronger presidential powers. Still, towards the end of his first term in office, he openly sided with particular politicians within the ČSSD and with Andrej Babiš’ ANO movement in 2011, but there was no room for him to take over the party as Andrej Babiš was the dominant figure of the movement.

Beyond constitutions   113 To the present, the Czech presidents have probably been the three most distinctive figures of post-­1989 Czech politics. Despite great differences in personalities and policies, they came to accept the notion of a non-­partisan president, although in practice they demonstrated clear sympathies for particular politicians or parties.29 This pattern was most visible with Miloš Zeman, who additionally made at least two unsuccessful bids to increase the presidency’s power, relying on a loyal parliamentary party. 6.3.2  Slovakia In Slovakia, too, there has been a steady flow of presidents that regard and present themselves as a non-­partisan president. The actual practice, however, has continued to be more complicated and their behavior, such as taking sides with certain parliamentary parties, has often undermined this image. Michal Kováč (1993–1998), the first Slovak president, was important in two major respects. First, Kováč to a large extent established the tradition of the modern Slovak president existing as a non-­partisan figure who seeks to function in an “above-­parties” capacity. Second, Kováč proved to be an important check on Prime Minister Mečiar’s power and positioned himself as the guardian of Slovak constitutionality, which in fact significantly complicated his neutrality in party politics. Although Michal Kováč was originally the official candidate (as well as a member) of the Movement for Democratic Slovakia (HZDS) in the 1993 presidential elections, during negotiations with parliamentary parties he presented himself as a consensual and non-­partisan presidential candidate. In reality, this approach to the presidency was enforced by two overarching circumstances. First, the high threshold of a three-­fifths majority of all MPs required for a presidential candidate to get elected in the National Council forced him to appeal to a broader range of parties. Second, since the HZDS was the largest party and sought to occupy a prominent position in the entirety of the political system, some parliamentary parties (notably Party of Democratic Left ‒ SDĽ) feared that the HZDS would predominate in Slovak politics. Thus, in order to succeed in the election, Kováč promised to give up his membership once elected. He also intended to appoint members of his presidential staff from various parties (Kopeček, 2008: 179–180; Kováč, 2010: 74–78). In his speech to the MPs in the National Council, he explicitly talked about the independence of the president: “If I am elected, I want to be a President of all citizens of our country, an independent President, without party affiliation, which stems from the constitutional anchoring of the presidential function” (Kováč, 2010: 79). Kováč met these two pre-­election promises: he gave up his partisanship (Brown, 1996: 32), in addition to assimilating a blend of individuals of various political backgrounds into the staff of his presidential office. On the one hand, Kováč’s strategy of building up his image as a non-­partisan, independent candidate secured his victory in the elections. On the other hand, this strategy soon contributed to fierce struggles with his party, HZDS, and its

114   Beyond constitutions leader Vladimír Mečiar,30 the then dominant figure of Slovak politics (Pešeková, 2011: 95). Kováč was originally expected to be loyal to Prime Minister Mečiar. However, instead of being an HZDS puppet, Kováč gradually but decisively turned against Mečiar (Brown, 1996: 32; Kováč, 2010: 231; Spáč, 2013: 128) and ended up situating himself as the HZDS’s major opponent as well as a symbol of resistance to Mečiar’s authoritarian tendencies (Henderson, 2002: 58–59). Kováč was succeeded by Rudolf Schuster (1999–2004), the first popularly elected president, who was elected as a candidate from the forces that beat HZDS in the 1998 parliamentary elections. He was the leader of the Party of Civic Understanding (SOP), which was founded prior to the 1998 elections with the official aim to contribute to reconciliation in a polarized Slovak society, although the true reason for the foundation of the party probably lies in the fact that Schuster needed a partisan vehicle to support him in the presidential elections (Pešeková, 2011: 101; Spáč, 2013: 131). Schuster thus became the official candidate of the new ruling coalition led by Mikuláš Dzurinda, although he was not accepted unanimously by the coalition parties (Kopeček, 2008: 183). Nevertheless, since Mečiar was running for the office of president alongside him, these skeptical parties eventually fell in line behind Schuster (Štollová, 2014: 49). Carrying on the tradition originated by Michal Kováč, Schuster resigned as the leader of the SOP and suspended his party membership after being elected (Pešeková, 2011: 105). This formal resignation from his party not only isolated him from partisan politics but was later enhanced by other political circumstances, thereby dissociating Schuster from all political parties as he gradually became a president without a party powerbase. The SOP eventually ceased to exist,31 and Schuster gradually distanced himself from the ruling coalition, even frequently criticizing the Dzurinda cabinet and making repeated use of his veto power (Mesežnikov, 2004: 28–29; Spáč, 2013: 132–133). Schuster constantly stressed that he was a non-­partisan president, claiming that he was a “statesman” standing “above politics” (Mesežnikov, 2002: 28–29) and that he was not a president for “the coalition and opposition only, but for all the citizens of Slovakia” (Schuster, 2001). He even tried to play the role of an “above-­parties” president who regularly held meetings with leading politicians, but this initiative failed as party leaders were not willing to participate in such meetings. However, Schuster was unable to keep his non-­partisan profile. His ideas and policies, often quite closely, resembled the policies of the Smer party, where he sought support, and he maintained a critical attitude towards Dzurinda’s social and economic policies (Kopeček, 2008: 186–208; Mesežnikov, 2002: 27). The next president, Ivan Gašparovič, was once a prominent politician of the HZDS. He was Mečiar’s close ally and “heavily involved in the country’s democratic backsliding” (Rybář, 2005: 334) until he later left the party and established the Movement for Democracy (HZD) in 2002. In 2004, he was elected to be the candidate of a bloc of nationalist forces.32 Like Kováč and Schuster, Gašparovič gave up his party membership once he assumed the presidential office (Mesežnikov, 2005: 36), yet in a break from his predecessors, he became the

Beyond constitutions   115 honorary president of the HZD in April 2006, about two months before the parliamentary elections (Malová and Rybář, 2008: 193). Initially, Gašparovič did not particularly side with the parties that had helped him win the elections, but he “most clearly demonstrated his sympathy with nationalist political forces” (Mesežnikov, 2005: 40). During his first two years in office, a time when he was facing the right-­wing cabinet of Mikuláš Dzurinda, Gašparovič regarded himself as “an opposition President,” which he repeatedly mentioned between June 2004 and July 2006 (Mesežnikov, 2007: 30). He was highly critical of the ruling coalition, especially for its socio-­economic policies (Mesežnikov, 2006: 31), but he nonetheless avoided conflicts with the right-­wing cabinet. After the 2006 elections, he became a staunch supporter of the cabinet led by Robert Fico (Mesežnikov, 2008: 29–30). Between 2006 and 2009, his relationship with the Fico cabinet was characterized by loyalty, “a loyalty that has sometimes bordered on subordination” (Spáč, 2013: 135). At the same time, he repeatedly argued that he was an “above-­parties” president and that he would seek re-­election as a “citizens’ candidate” (Mesežnikov, 2009: 94), asserting that, “as the President, I have never been inclined towards any political party. It is true, however, that a part of my election manifesto is close to the government coalition program, notably to Smer’s program” (Hospodárské noviny, 2008). Gašparovič’s close and friendly relations with the Fico government peaked in 2009 when he was seeking re-­election, at which point he openly expressed his partisan sympathies (Gašparovič, 2009a, 2009b). The friendly relations between Gašparovič and Fico were further fostered after Gašparovič’s re-­election, when the latter would frequently support and praise the Fico government (Mesežnikov, 2011: 30). The most recent Slovak president to date, Andrej Kiska was, in contrast to his predecessors, able to remain outside party politics and came very close to the ideal of an “above-­parties” presidency. This could have something to do with the fact that he was the first Slovak president who had been non-­partisan before he was elected and had no political experience, as he was a businessman fully able to finance his own presidential campaign; this largely helped him remain outside party politics. Thus, he has presented himself on many occasions as an independent and “above-­parties” president (Kiska, 2014, 2015, 2016).33 In the beginning, Kiska was a relatively passive president, but the higher level of public trust later emboldened him to be more critical of the Fico coalition government over its various problems and failures. He accentuated several crucial issues shortly before the 2016 parliamentary elections, particularly pushing the predicaments caused by serious problems in healthcare (e.g., Kiska, 2015, 2017a, 2017b) and criticizing Fico’s cabinet for the corruption and scandals in which Minister of Interior Robert Kaliňák was involved (Balázs, 2017; Kiska, 2017b). Fico fought back, and Kiska eventually found himself in a highly discordant relationship with the government.34 All in all, most of the Slovak presidents started as partisan presidents strongly supported by political parties (Horváth, 2014: 78). Although they gave up party membership after their election and tended to be independent of their parties,

116   Beyond constitutions they were not politically neutral actors standing “above parties” “but formed part of the existing party rivalry” (Spáč, 2013: 138–141). The most recent Slovak president, Andrej Kiska, has not been an exception in that he sharply clashed with the government, although he lacked partisan experience as well as the parliamentary allies his predecessors had enjoyed. 6.3.3  Poland The Polish presidency is not so much influenced by the idea of “non-­ partisanship” or “above partisanship” in the way that it is in the Czech Republic and, to a lesser extent, in Slovakia. This means that the relationship between the Polish president and political parties is more intense and straightforward. On the one hand, the president is officially neither a member nor a leader of a political party. Successful candidates for presidential office give up their partisan membership after the elections, so from a formal point of view the Polish presidency is non-­partisan. At the same time, presidential elections are openly partisan in the sense that all major candidates35 formally represent political parties which provide their candidates with material, an organizational apparatus and the personnel for campaigning. The parties and the candidates make no secret about this fact, and they are generally perceived as representatives of their respective parties or at least as representatives of a particular political camp, whereby voters are well aware of which political parties the candidates represent. In addition, the president works to maintain their links to their parties, i.e., the parties that nominated them for presidential elections, even after they have formally renounced their party membership. The first president after the fall of Communism was General Wojciech Jaruzelski (1989–1990), whose presidency was specific and essentially only temporary because he was the only Polish president elected by parliament as part of the negotiated transition to democracy resulting from the Roundtable Talks. In addition, his presidency was constantly questioned by a large section of society (Migalski, 2006: 207). President Jaruzelski was therefore politically restrained and did not interfere with any political party. After the presidential elections, he left his Polish United Workers’ Party (PZPR), though he had been a party member from 1947 and had chaired the party between 1981 and 1989 (Kowal and Cieślik, 2015: 321). The party then dissolved itself in January 1990. Wojciech Jaruzelski thus paradoxically became a non-­partisan president in the true sense of the term. The first directly elected president was Lech Wałęsa (1990–1995), who was also a non-­partisan president but under quite different circumstances and for very different reasons. Wałęsa took part in the presidential election only as a representative of a portion of the Solidarity movement, which – in the wake of the so-­called “War on the Top” (wojna na górze), as Wałęsa called it (Hall, 2011: 166) – broke down in a rather conflictual and haphazard manner. The  presidential election became one of the most visible manifestations of the movement’s disintegration since two Solidarity leaders, Wałęsa and the first

Beyond constitutions   117 non-­Communist prime minister, Tadeusz Mazowiecki, went head-­to-head in the elections. After being elected to office, Wałęsa shed his former political background that was by then plagued with dissent, and he initially did not try to build a new partisan background. His relationship with the post-­Solidarity group was full of conflicts and volatility. Later, in 1993, he initiated the establishment of the Nonpartisan Bloc for the Support of Reforms (BBWR),36 which was supposed to back his policies in parliament (Migalski, Wojtasik and Mazur, 2006: 43–44). However, this failed; the BBWR entered parliament in the 1993 elections but gained a measly 16 deputies and two senators. Disappointed, Wałęsa pulled away from the party, which then led its own independent life (Paszkiewicz, 2000: 14–15).37 Subsequently, with the aim of his re-­election, Wałęsa tried to integrate a fragmented part of the political right, but he did not succeed. He ended up in the same way he began: a non-­partisan president, albeit involuntarily. In the 1995 presidential election, he was eventually supported by several right-­wing parties (including BBWR, whose chairman was Wałęsa’s chief of staff ) and Solidarity (Dudek, 2016: 337–338), but it was not enough to win. The situation of President Aleksander Kwaśniewski (1995–2005) was quite different. He participated in the two presidential elections held in 1995 and 2000 as a candidate for the Alliance of Democratic Left (SLD) and, despite his departure from the SLD,38 he was regarded as its representative throughout his 10-year presidency. He did not seek a partnership with other parties and did not aspire to create a new presidential party. Kwaśniewski’s presidency, in terms of his relationship with his own political party, featured two contradictory tendencies. On the one hand, he publicly presented himself as “the President of all the Poles.” In this vein, he sought the position of a president standing “above” political parties, or rather a president unifying the nation and balancing different currents of opinion. He made a great effort (though not too successfully) to gain sympathy from non-­Communist circles. At the same time, however, as the president, he remained faithful to the SLD at all times and sided with the political left. He even interfered in the inner life of the party, something that became increasingly visible towards the end of his second term. At that time, he was engaged in supporting Wojciech Olejniczak, who was seeking the post of SLD leader. Kwaśniewski also wished Włodzimierz Cimoszewicz would run for president; when Cimoszewicz refused, Kwaśniewski called on voters to vote for the SLD in the 2005 parliamentary elections and in the presidential elections held in the same year while also publicly supporting the SLD candidate Marek Borowski (Migalski, Wojtasik and Mazur, 2006: 231). If Aleksander Kwaśniewski was functioning as a president for the SLD, Lech Kaczyński (2005–2010) was also a clearly partisan candidate. Yet, unlike Kwaśniewski who was a left-­wing partisan, Kaczyński was the candidate of the right-­wing PiS. The 2005 presidential election was affected by the fact that it was held almost parallel to the parliamentary elections for the first time since 1989, and the two elections indeed influenced each other. The presidential

118   Beyond constitutions e­ lection became even more partisan than before, and the parliamentary elections were more “presidentialized.” The voters strongly identified the political parties with their presidential candidates. This fact was further reinforced by the two main political parties, the PO and the PiS, which nominated the best-­known and most popular politicians for the presidential election: Donald Tusk (PO) and Lech Kaczyński (PiS) (Migalski, Wojtasik and Mazur, 2006: 233–234). President Kaczyński never concealed his affiliation with PiS even though he resigned from the party after assuming office and formally became a non-­ partisan president. Similar to Kwaśniewski, he never flirted with any other political party, nor did he try to form his own party during his term. However, Kaczyński’s relationship to his own party was different than Kwasniewski’s. While Kwaśniewski never ceased to be the informal SLD leader and, to a certain extent, the leader of the left, Kaczyński was in a role of subordination to the PiS, which was led by his twin brother Jarosław. The symbolic expression of this was fact became Kaczynski’s famous statement when speaking to the members of his staff after the first election results were published: Finally, I would like to address the chairman of my party, Jarosław Kaczyński. He was the main strategist; he united people, occasionally against my will. Today, I can say to him, Mr. Chairman, I report that the task is done!39 Throughout his presidential term, Kaczyński never escaped the suspicions and accusations that he succumbed to the interests of his brother’s party. To a great extent, this cynicism was justified. We can see a paradoxical situation where the president in fact had an allied party standing behind him which formed no power base for him nor contributed in any way to the strengthening of his influence. On the contrary, the president was weakened by his party for the benefit of its leader (Jarosław Kaczyński). Even Kaczyński’s biographers who were positively drawn towards him, like Piotr Semka (2010: 166–167), noted, “We can risk thinking that after all in most cases the final word belonged to Jarosław.” The presidential election of 2010 was held in the shadow of the Smolensk catastrophe.40 Two major candidates ran in the election: PiS chairman Jarosław Kaczyński, who declared that he was standing to fill the legacy of the deceased president and his brother Lech, and the PO representative Bronisław Komorowski. Komorowski was the president of the Sejm before the election and ex officio temporarily carried out the functions of president after the death of President Kaczyński. This election was a purely partisan struggle from which Bronisław Komorowski emerged victorious and served as president for one term in office until 2015. Komorowski, like his predecessors, formally abandoned his party, but he was still closely tied to the party in practice. He was a very passive president and remained subordinate to the leaders of the PO: first Donald Tusk and later Ewa Kopacz (Dudek, 2016: 652). To date, the most recent presidential election was held in 2015. Although President Komorowski was very popular, he unexpectedly lost to PiS candidate

Beyond constitutions   119 Andrzej Duda. Duda’s victory was mainly determined by the election campaign, which Komorowski had significantly underestimated given his generally expected victory (even in the first round, as some thought). In contrast, Duda’s campaign was dynamic and effective (Dudek, 2016: 670–675). After Duda’s victory, it first seemed that the 2005 scenario would be repeated: a formally non-­partisan president would be an obedient executor of the instructions of PiS chairman Jarosław Kaczyński, whose party had a majority in parliament and hence held control of the government. However, this scenario ceased to work in 2017 when President Duda unexpectedly vetoed PiS laws to reform the Polish judiciary, which had been criticized as limiting the independence of the judiciary. Some PiS officials accused President Duda of betrayal, and relations between the president and PiS have since deteriorated. The Polish case shows a clear trend that has been the same since at least 1995. In the presidential election, all major candidates are partisans. After the elections, the president formally leaves their party, but their ties to the party are not cut and they are still generally perceived as representative of their party or, more broadly, as representative of a political camp. However, the ties with their party do not serve as a tool of power. In some cases, it is the other way around, whereby the parties rather control their presidents and weaken them. Therefore, it is not possible to speak about presidential parties in the true sense of the term. *** To sum up this section, when it comes to the relationship between the president and parties, the actual political practice has varied considerably in the three countries. Yet some commonalities can be identified. First, in most of the cases, the presidents entered office with a remarkable past as a leading partisan politician or even prime minister. Second, however, in all three countries, we can observe a significant amount of self-­constraint on the part of the president as far as their partisanship is concerned. All presidents accepted the general expectation of a non-­partisan or “all-­nation” presidency, although their behavior may not necessarily have met this expectation. In general, the presidency is connected to the idea of a non-­partisan president, which is after all expected by the general public, as we have showed in the previous section. Thus, in the three countries, a presidential convention has been applied: once in office, the presidents cut themselves off from their parties. Whereas in Poland this move has been rather formal and in actuality the ties have remained in place, the president still being perceived as partisan, in the Czech Republic (and to a lesser extent in Slovakia too) the president has tended to become non-­partisan in actual practice as well. Nevertheless, not only in Poland, but also in the Czech Republic and Slovakia, the president – sometimes frequently, sometimes less frequently – clearly sided with particular political parties and occasionally engaged in political conflict despite their promises and rhetoric. Third, none of the presidents established themselves behind a parliamentary party which would be loyal to the president and which would serve as a tool of power in daily politics. This finding, together

120   Beyond constitutions with a lack of independent executive powers, is central to understanding why Central European presidents have never become ruling presidents; they have simply lacked a relevant political party which would form a basis for their informal power. When the presidents attempted to gain a loyal parliamentary party with a significant share of seats (Wałęsa in Poland and Zeman in the Czech Republic), their efforts were in vain.

6.4  Popular election of the president Examining the ways in which the presidents of the three Central European countries are elected, we can see both similarities and differences. All three countries elect their presidents in direct elections, which were introduced following the fall of Communism. Everywhere, the president is initially elected by parliament and only then were direct and general presidential elections introduced: in Poland in 1990, in Slovakia in 1999 and in the Czech Republic in 2012. This difference in timing suggests that the shift took place under different political and constitutional circumstances, and let us add that the shift took place for quite different reasons. The aim of this section is to discuss the reasons that led to the introduction of popular elections and the conditions under which the shift took place. With regard to the thematic focus of our analysis, we can state at the outset that nowhere was the reason for changing the mode of presidential elections motivated by an explicit effort to strengthen the president in terms of adding formal presidential competences. This does not mean that the position of the president has not changed since the shift to popular elections, especially not on the political level when it comes to the legitimacy of the president, but it was an unintended side effect and not a deliberate effort to transform the constitutional position of the president and to strengthen presidential powers. 6.4.1  Poland The first country to move from indirect to direct presidential elections was Poland in 1990. Generally speaking, two main reasons led to this shift. First, the change in the way the president was elected was part of the final state transition to democracy as determined by the Round Table Talks and their implications. Second, this change was further impacted by the complicated break-­up of Solidarity (“War on the Top”), which was mixed up with personnel disputes as well as the presidential aspirations of the main actors in this process. Right from the beginning, it can be said that the second reason prevailed to a certain extent (Ciapała, 1999: 75). The first Polish presidential election took place in July 1989 at the newly established National Assembly (a joint session of the both parliamentary chambers). The Communist leader General Wojciech Jaruzelski was the only candidate in the presidential election. He was elected in an open vote with a margin of one vote.41 The method of election as well as the candidate resulted from the

Beyond constitutions   121 Round Table Talks and related events (see Dudek, 2004: 341–369) symbolized by the famous editor-­in-chief of Gazeta Wyborcza and former dissident Adam Michnik (1989) and his article entitled “Your President, our Prime Minister” (Wasz prezydent, nasz premier). Neither the mode of election nor the elected president was sustainable in the long run. They were only ever meant to operate as provisional solutions to the prevailing political situation. Political events jumped forward at a rapid pace, which in part made Jaruzelski’s presidency politically and socially untenable. The representative of the old regime could hardly hold the presidency for long in a new democracy, despite the fact that his behavior illustrated restraint and he did not take any steps to block the democratization process. Jaruzelski was aware of his provisional position from the outset and assumed that he would not be president for the entire six-­year period. In September 1989, he asked to shorten his term in office (Ciapała, 1999: 78). Similarly, his legitimacy was weak because he was elected by a parliament that was not elected in free elections, but in the only semi-­competitive elections of 1989, which was also one of the provisional outcomes of the Round Table Talks (Małkiewicz, 1994). It should also be noted that at the time Poland did not yet have a new constitution but only the revised Constitution of 1952. This situation was well described by Prime Minister Tadeusz Mazowiecki, who stated that “the next presidential election must be based on a previously adopted Constitution, either in direct and general presidential elections, or by the National Assembly that was elected in free elections” (Hall, 2011: 167). It was therefore necessary to address two questions at once: who would be the new president, and how should this happen? The idea of popular presidential elections first appeared during the Round Table Talks. It was by no means related to the question of the democratic regime type but was instead motivated by political tactics (Ciapała, 1999: 76). It is significant that this motive was decisive for the entirety of the debate about the mode of presidential elections. In other words, debates on the direct elections were not framed by systemic thoughts on a democratic regime as a whole. Rather, the idea of direct presidential elections was instrumental in increasing the chances of particular candidates in the presidential contest. In May 1990, the political party of Jarosław Kaczyński, the Center Agreement (PC), proposed Lech Wałęsa as a presidential candidate and at the same time favored the election of the president through the National Assembly because it assumed that Wałęsa would have no rival in the parliamentary election. Soon, however, the two main figures of the “War on the Top,” Lech Wałęsa and Tadeusz Mazowiecki, thought that they had the greatest chance to win the presidential contest in a popular election and began to promote it publicly (Ciapała, 1999: 77; Dudek, 2016: 113).42 In this way, the popular presidential election dominated debates on the mode of presidential elections. Since then, no one has ever considered a parliamentary election style. Formally, the relevant constitutional amendment was submitted by MPs on September 6, 1990. Three official major reasons were used to support the amendment: (1) the determination to conclude the Round Table Talks era, which was

122   Beyond constitutions linked to the parliamentary election of the president; (2) the assumption that only the directly elected president would be sufficiently legitimized to be able to make decisions that are important for the whole nation; (3) the popular election of the president was thought to stabilize the political situation in the country and also to increase the credibility of the Polish democratic transformations in the view of foreign partners (Ciapała, 1999: 78). The popular election did not raise any dispute in parliamentary debates. Different views were only related to the details of the amendment (e.g., the length of the term of office, the number of electoral signatures required to register the candidate, etc.) (Chruściak, 1999: 49). This was reflected by the support of MPs for the proposal: 325 out of 339 present MPs were in favor of the amendment (Ciapała, 1999: 79). The Polish case unequivocally shows that the mode of presidential elections, respectively its amendment, may not be related at all to presidential competences or, more broadly, to the democratic regime type, even in a situation of democratic transition and building a new democracy. In Poland, the popular presidential election was introduced without deeper reflection on systemic issues. According to the Polish historian Antoni Dudek (2016: 121), It is difficult to find in the latest history of Poland a more obvious example of a decision of fundamental importance for the political system of the state, the decision adopted in a spontaneous way, in order to solve the ongoing personal conflict. 6.4.2  Slovakia The second country to move from an indirect to a direct election of the president was Slovakia in 1999. In this case, specific political circumstances played a role too, but they were of a different kind. The Slovak shift was related neither to the transition from Communism to democracy nor to the subsequent development that immediately followed the democratic transition, as in Poland. Instead, the Slovak change was caused by another transition: from a hybrid regime, the so-­ called “Mečiarism” (Kopeček, 2006: 177–197), to a consolidated democracy at the end of the 1990s. The change of the mode of presidential election was part of this re-­democratization process. In brief, many political developments in the period until 1998 were characterized by the authoritative tendencies of Prime Minister Vladimír Mečiar and his party, the Movement for Democratic Slovakia (Lebovič, 1999: 25–26; Mesežnikov, 1999; Szomolányi, 1999b: 13–14). The struggle over the democratic character of Slovakia was accompanied by fierce conflicts between President Michal Kováč and Mečiar’s government. Since the fragmented opposition was too weak to become a relevant check on the Mečiar government, President Kováč became the leading figure of oppositional forces and also the major target of the Mečiar government’s efforts to suppress its political enemies. Mečiar used almost all conceivable means to oust President Kováč and to curb his powers (Spáč, 2013). In return, the opposition sought to oust, or at least limit, Mečiar’s

Beyond constitutions   123 power and keep presidential powers untouched (Orosz, 2013: 5–6). The direct election of the president eventually became central to this struggle. The failure of Mečiar to oust President Kováč from office, the rising preference for opposition parties and the plummeting international reputation of Slovakia in the eyes of European countries ultimately encouraged opposition parties to launch a counter-­offensive. Direct elections became instrumental to a unified approach of most opposition parties (and President Kováč too) that were seeking to prevent the HZDS from taking control of the presidential office after the end of Kováč’s term (Kopeček, 2008: 180–181; Orosz, 2013: 5–6). In December 1996, the opposition parties submitted a bill to amend the constitution to allow for the direct election of the president, but this bill was rejected by the ruling parties in January 1997. Thus, the opposition tried to by-­ pass the National Council and started collecting signatures for a petition to hold a nationwide referendum on the direct election (Lebovič, 1999: 26), which triggered a lively debate on the matter. Major opposition parties were unanimously in favor of the amendment (Michalič, 1997: 46). Moreover, President Kováč supported the opposition’s initiative and, on the basis of the successful petition, scheduled the referendum for May 1997. In April 1997, the opposition parties issued their common declaration addressed to all Slovak citizens, who were encouraged to participate in the referendum and to vote in favor of the direct election. Once it was clear that the opposition initiative was successful and the government was obliged to hold such a referendum, Mečiar’s government initiated another referendum on the Slovak accession to NATO with the aim of undermining the original initiative (Lebovič, 1999: 26). The referendum was eventually wrecked by the government. Despite the failure of the opposition to push through the direct elections by a constitutional amendment or by a referendum, the theme of direct elections became deeply rooted in public and political debates (Bútora, 1997: 32–33) and was a key issue in the 1998 parliamentary election campaign (Orosz, 2013: 6; Štollová, 2014: 45), which resulted in Mečiar’s defeat and the appointment of a coalition cabinet composed of anti-­ Mečiar parties.43 Most of these parties unambiguously called for direct presidential elections in their election manifestos.44 However, the immediate trigger for the constitutional amendment was the National Council’s repeated failure throughout 1998 to elect Kováč’s successor (for details see Just and Hladká, 2004; Kopeček, 2008: 183). A three-­fifths majority of all MPs was required to elect the president, which was even more difficult to achieve in a fragmented and polarized parliament. As a result, “A successful presidential election required an extraordinary consensus of political parties in parliament to avoid deadlock and constitutional crisis” (Malová and Rybář, 2008: 181–182). Thus, opposition parties as well as outgoing President Kováč feared that the National Council would not be able to elect a new president (Kopeček, 2008: 201),45 which is precisely what happened in 1998. Although the elections repeatedly took place (five times), none of the candidates were able to reach the required three-­fifths majority, and Slovakia had to dispense with the president for about 15 months between March 1998 and June

124   Beyond constitutions 1999 (Kopeček, 2008: 183). As stipulated by the constitution, the presidential competences were supposed to be temporarily taken over by the speaker of the National Council and the prime minister, the authoritarian Vladimír Mečiar, who used these powers in a highly controversial way (see Henderson, 2002: 48). Together with the 1998 parliamentary elections that resulted in Mečiar’s defeat and the appointment of a new coalition cabinet led by Mikuláš Dzurinda, these events opened the way for the constitutional amendment that introduced the popular two-­round election of the president in January 1999.46 The first presidential election regulated by the constitutional amendment took place in May 1999. Rudolf Schuster emerged from the presidential contest as the victor, beating Vladimír Mečiar in the second round (57.2 percent: 42.8 percent) (Kopeček, 2008: 185). To conclude, the importance of the direct election of the president in Slovakia was more than a mere constitutional change. It served as an important tool to consolidate democracy in Slovakia because it helped unite opposition parties and mobilize voters against Mečiar’s ruling collation. The 1999 amendment also revived the presidency, which had been undermined by Kováč’s clashes with Mečiar and which had remained vacant for more than a year between 1998 and 1999 (Malová and Rybář, 2008: 180 and 199). It is also essential to realize that the constitutional amendment was not the only constitutional change that affected the Slovak presidency. The transition from “Mečiarism” to a consolidated democracy was accompanied by other constitutional changes related to the position of the Slovak president in the Slovak constitutional system. Thus, Slovakia was the only Central European country that amended the presidency in a broader way: the mode of the election as well as the presidential competences. These amendments, however, did not strengthen presidential powers in general. In some respects, the president has become stronger, yet in other respects he has become weaker (see Chapter 3). In any case, the shift from parliamentary to popular election was not dictated by an effort to strengthen the power position of the president but was rather a reaction to a complicated political situation in a country struggling to be liberal democratic in character. 6.4.3  Czech Republic The Czech Republic is another case. While in the previous two cases the introduction of popular elections was a result of a particular set of political events and circumstances that directly led to the constitutional change, the situation in the Czech Republic differed in that there was no immediate major factor that directly led to the adoption of popular presidential elections. On the other hand, the idea of a directly elected president has traditionally been present in debates about the Czech constitutional system and has even occasionally surfaced at the top of the political agenda in connection to several events that eventually contributed to the 2012 constitutional amendment. The first time such an initiative appeared was as early as in December 1989 when the Communists argued that the president should be directly elected. At

Beyond constitutions   125 that time, the Communist party sought to take advantage of the relatively high popularity of the last Communist Czechoslovak prime minister, Ladislav Adamec, in the hopes that it would assist in getting a Communist elected instead of Václav Havel, who was still a relatively little known person at the end of 1989. Later, various proposals to introduce the direct election of the president emerged more or less regularly, and always in connection with other similar political demands or interests. Another initiative came about after the 1992 parliamentary elections, when the Civic Movement, which had failed to get any parliamentary seats, feared that Václav Havel would not be elected president of the newly established Czech Republic in the spring of 1993. Therefore, it initiated a petition to support the popular election of the president.47 In 1998, another push for direct elections materialized because the political alliance The Coalition of Four (Čtyřkoalice) feared that parliament could elect Václav Klaus, their political opponent, as president.48 Further debates appeared in connection with the 2003 presidential election in which Václav Havel could not seek re-­election and notably in relation to the 2008 presidential elections when Václav Klaus was re-­elected, but the course of the vote was highly problematic.49 These were all rather specific events that prompted debates about popular presidential elections being introduced in the Czech Republic. Besides that, one could notice a change in the perception of the popular election. From approximately 2000 to 2003, most of the Czech political class shared the view that popular elections must be implemented, not for any particular reason but rather because of the simple fact that popular election was a highly positive, democratic and fair element of the political system. This narrative also included the argument that a lot of other democratic countries voted for their presidents in popular elections. This narrative of fair and democratic presidential elections became difficult to oppose since those politicians who questioned it were accused of blocking the popular will and thus limiting democracy. Thus, the politicians reached a rare agreement on this matter after approximately 25 years, though that is not to say there were no voices against this move. In recent years, prior to the introduction of popular presidential elections, a remarkable debate emerged in the Czech Republic in which supporters of popular elections clashed with their opponents. This debate was notable by the fact that probably over no other systemic question was there such a dramatic contrast in opinion between the political (and also partly journalistic) community on the one side and academia on the other. While the former supported holding direct presidential elections, the latter was largely opposed. The arguments of politicians, if at all consistently expressed, have always been rejected by a vast majority of political scientists and constitutional experts (Charvát, 2013; Hloušek, 2008; Kubát, 2003; Molek, 2015). While supporters of direct elections relied primarily on public opinion, which according to various surveys (e.g., Ďurďovič, 2012) favored introducing the direct and general presidential ­elections that were presented as more “democratic” than indirect elections, opponents

126   Beyond constitutions argued that such a method of electing the president would be detrimental (given the fact that direct election is an alien feature vis-­à-vis the parliamentary nature of the Czech political regime) and that it might significantly distort the Czech democratic regime (Brunclík and Kubát, 2016a; Charvát and Just, 2014; Hloušek, 2008; Kubát, 2003). However, regardless of warning signs against the direct and universal election of the president, politicians approved this constitutional change. Peculiarly, they did so irrespective of their political and ideological differences. The amendment was passed first in the Chamber of Deputies in December 2011, when all parliamentary parties backed the motion except for the Communists who abstained. The amendment was then passed in the Senate in February 2012. In the Senate, the motion was passed by a relatively narrow margin.50 To sum up the Czech case, the arguments for introducing popular elections initially appeared in a similar fashion as in Poland and Slovakia – the arguments were conditioned by particular political events and circumstances that kept the debate on popular elections alive for over two decades. These events gave rise to arguments in favor of popular presidential elections, but these proved to be limited and even narrowly utilitarian in nature. Later, a far more powerful narrative appeared that reinforced the specific arguments with more general and abstract ideas that created a highly positive image of popular election of the president. Finally, it should be emphasized that advocates of popular elections did not wish to change formal presidential competences (e.g., to strengthen presidential powers), and the constitutional amendment did not affect presidential powers at all. *** In Poland and Slovakia, the introduction of popular elections was directly caused by particular sets of factors in each case, which were related to a transition: in Poland, a transition to democracy following the Round Table Talks, and in Slovakia, a transition from the illiberal era of Mečiarism to Slovak democracy. In contrast, the Czech reform was not conditioned by a particular cause but was a result of a general consensus that direct election per se is a positive and desirable feature of the constitutional system. However, in all countries, the issue of popular election was by no means related to the target of giving the president more powers.

Notes   1 Therefore, we pay particular attention to the Czech presidency in this section.   2 We do not just mean that the people at the top of constitutional institutions but also personalities who are endowed with exceptional qualities, abilities, talents, etc. (Sartori, 1987).   3 This fact was reflected in special laws praising Masaryk and Beneš. In 1930, a special law was adopted, saying “T. G. Masaryk had merit in foundation of the state. Let this statement be inscribed in stone forever in both chambers of the National Assembly”

Beyond constitutions   127 (Law, 1930). In 2004, a very similar law was adopted referring to the second Czechoslovak president, Edvard Beneš (Law, 2004). The unique character of the presidents was also reflected by the informal titles ascribed to presidents. The titles were not just meaningless labels, they were reflections of the climate among politicians as well as (or perhaps above all) in society: Masaryk – the President Liberator (Kuchynka, 1947), Beneš – the President Builder (Šmeral, 1946). Moreover, the first Communist president, Klement Gottwald, who was officially propagandized as the President of Unity (Pernes, 2003: 135), attempted to re-­establish this tradition. Nowadays, such anachronistic titles are no longer used.   4 Libuše is an opera composed in 1871–1872 in three acts with music by one of the most famous Czech composers, Bedřich Smetana. Libuše is a legendary ancestor of the Přemyslid dynasty (who established the first Czech state) and the Czech people as a whole. According to the legend, she prophesied and founded the city of Prague in the eighth century. The opera was originally intended for the coronation of Franz Josef I as the Czech king. This did not happen, and Smetana saved Libuše for the opening of the National Theatre in Prague in 1881.   5 Masaryk was well aware of the psychological power of Prague Castle, and he planned to “turn the monarchic castle into a democratic castle” (Čapek, 1937: 181).   6 For example, the first Czechoslovak president, T.  G. Masaryk, did not fully implement his constitutionally granted powers. However, this was compensated for by the moral and political authority of Czechoslovak presidents. In practice, informally – through a network of important persons within key political parties, media and cultural life ‒ he was very influential. This net was called Hrad (literally: Castle).   7 In the case of Austria-­Hungary, however, it must be taken into account that while the Czech lands were part of Cisleithania, i.e., the Austrian part of the empire, Slovakia belonged to Transleithania, i.e., the Hungarian part of the empire. This difference is important because the political conditions in the two parts of the realm varied considerably, reflecting different degrees of political and cultural autonomy, and therefore a different political arrangement of the two countries (Judson, 2016; Kadlec, 1912).   8 In the Czechoslovak federation (1968–1993), there were no presidents of the constituent parts of the federation, in contrast to governments and parliaments. There was only one, i.e., federal, president.   9 We rely on the long-­term surveys carried out by the Public Opinion Research Center of the Institute of Sociology of the Czech Academy of Sciences (CVVM SÚ AV ČR). In addition to surveys on trust in all top constitutional institutions, there exist special surveys related to various questions on the president. All the surveys can be found at https://cvvm.soc.cas.cz/en/ 10 For example, in March 2004, President Václav Klaus was trusted by 77 percent of respondents (Kunštát, 2002). A few years later, he faced at significant drop in popularity following his announcement of the highly controversial amnesty in January 2013. His level of popularity plummeted to an unprecedented 26 percent (Kunštát, 2013a: 1). 11 For the Slovak Republic, we mostly used long-­term data from the FOCUS agency (www.focus-­research.sk/) as well as data from the Institute for Public Affairs (IVO; www.ivo.sk/106/en/home) that was often published within scholarly books and book chapters. In contrast to the Czech Republic, the data on the Slovak president is included in surveys that comprise other constitutional bodies. 12 Once elected, President Schuster’s credibility increased significantly (Bútorová, Gyárfášová and Velšic, 2001: 207). 13 This downturn can be attributed to his several conflicts with journalists as well as to his long vacation in Brazil (Bútorová, Gyárfášová and Velšic, 2001: 205–207). 14 These low numbers are in line with later surveys from 2003 and 2004 when only some 36 percent and 42 percent, respectively, of respondents trusted President Schuster (Čukan, 2004; MO SR, 2003).

128   Beyond constitutions 15 All the CBOS data used in this chapter is available on www.cbos.pl/PL/publikacje/ raporty.php in the original version and on www.cbos.pl/EN/publications/reports.php in English. 16 An exception is the era of the early 1990s when the “semi-­presidential” Constitutions of 1989 and 1992 were in force and Lech Wałęsa, a very active politician, held the office of president. At that time, intensive surveys on the public’s attitudes towards Wałęsa as well as towards the presidency as an institution, particularly concerning presidential powers, were carried out. 17 The data includes the period from August 2015, when he entered office, until August 2017. The surveys are carried out on a monthly basis. Specifically, the results are as follows: 2015 (August to December), 33–43 percent positive and 15–40 percent negative (CBOS 8/2016); 2016, 47–56 percent positive and 32–39 percent negative (CBOS 6/2017); 2017 (January–August), 51–65 percent positive and 34–28 percent negative (CBOS 108/2017). 18 This finding is of a more general nature because it is included in several questions: the president should pay respect to public opinion (85 percent); the president should be above partisan and political conflicts (70 percent); the president should take part in decisions only on the most important questions (59 percent); the president should act moderately (58 percent). There were more questions (BS/17/4/91). 19 It is interesting to note that despite the great prestige of the presidential office, political parties seem to have been restrained in nominating their candidates to the presidential elections as they have probably become aware of the fact that partisans may not be desirable candidates for the generally “non-­partisan” presidency. This does not necessarily mean that parties have always refrained from nominating their own candidates (e.g., Václav Klaus). On the other hand, in the 2013 presidential elections, the parties did not nominate their leading figures but rather secondary partisans. Also, in the 2018 presidential election campaign no major party actually nominated a partisan candidate, and non-­partisan candidates clearly dominated the campaign. 20 Havel was often reproached for being an enemy of political parties as such. He denied such accusations and argued that he was just critical of excessive partisanship as well as the superiority of parties’ central offices, i.e., partitocracy, but he did not oppose partisanship as such (Havel, 2006: 84; for a discussion see Tucker at al., 2000). 21 Formally, he was not even the chairman of the Civic Forum (whose first and only chairman was Václav Klaus). 22 The anti-­Communist movement that eventually defeated the Communist system in Czechoslovakia. 23 Klaus was also very pragmatic in 2003 and 2008 when he was able to persuade some of the MPs of the Communist Party of Bohemia and Moravia (KSČM) to vote for him. Unlike Václav Havel, who did not officially invite KSČM representatives to meetings with parliamentary parties at Prague Castle (Havel, 1998), Klaus broke this pattern. 24 In 2008, for example, Klaus supported the rise of a new Eurosceptic party, the Party of Free Citizens (SSO), which was founded by his close aide Petr Mach. In the 2013 parliamentary elections, he supported the Cheer Up Party (HV) by Jana Bobošíková. 25 This seemingly marginal detail is essential to understanding the nature of later conflicts (some of which had a constitutional character (see Chapter 4) between President Zeman and Prime Minister Sobotka. 26 In 2014, the party restored its original label (SPO). 27 In the 2017 parliamentary elections, it gained only 0.36 percent of votes. 28 Lány is a village close to Prague where the official “summer” residence of the president is located. Zeman invited several loyal leading member of the ČSSD there. Following the meeting, these members attempted to oust Bohuslav Sobotka, the party chairman, whose relationship with Zeman was rather cold.

Beyond constitutions   129 29 However, relations between the presidents and their favored politicians was not solely characterized by sympathies, but also – and perhaps above all – by their pragmatism in forging political alliances. 30 For example, Mečiar regarded Kováč’s ambition to establish a presidential office with people from various political backgrounds as an attempt to pursue an alternative “power center” (Jancura, 2014). 31 The SOP was characterized by an unclear ideological profile; it was plagued by internal disputes, which in turn resulted in a decline of their electoral support, an inner-­party crisis (Kopeček, 2002) and a subsequent merger with the Smer party in 2003. 32 The Confederation of National Forces of Slovakia (KNSS), composed of the HZD and some other parties, nominated him. He was also supported by the largest opposition party, Smer (Mesežnikov, 2006: 27). 33 Despite his non-­partisan approach, he was not absolutely neutral. He also directly criticized the neo-­fascist party Kotleba – People’s Party Our Slovakia, which entered parliament in 2016. 34 Another example might be their clash over the EU’s sanctions against Russia due to the latter’s annexation of Crimea (HN Slovensko, 2017). 35 The presidential elections in Poland have always been attended by a relatively large group of outsider candidates who have had only a slight chance of winning. These have not always been party candidates. 36 The party constructed this title with the heritage of the Nonpartisan Bloc for Cooperation with the Government (BBWR) in mind, which was established in 1927 at the initiative of Marshal Józef Piłsudski in order to support his authoritarian regime (Roszkowski, 1992: 57). 37 In the next parliamentary elections in 1997, the BBWR was part of the Bloc for Poland (BdP) coalition, which gained only 1.36 percent of votes and consequently failed to get into parliament (Piasecki, 2003: 71–73). 38 Aleksander Kwaśniewski was not formally a member of the SLD but the Social Democracy of the Republic of Poland (SdRP) because the SLD was initially a coalition of many groups including the SdRP. In 1999, the SLD was transformed into a political party, and the SdRP disappeared (Sieklucki, 2006: 87–88). 39 https://wpolityce.pl/polityka/219310-panie-­prezesie-melduje-­wykonanie-zadania-­ dziewiec-lat-­temu-lech-­kaczynski-wygral-­wybory-prezydenckie 40 A Polish government aircraft carrying the president and other political, military, religious and cultural figures and personalities of the Polish state crashed in the Smolensk region of Russia during a landing maneuver in April 2010. All passengers died. This tragedy had far-­reaching political consequences for Poland (Dudek, 2016: 618–623). 41 In total, 544 Sejm members and senators participated in the elections. There were 270 votes in favor of the candidate, 233 against and 34 who abstained from voting. The required majority for the successful candidate was 269 (Dudek, 2004: 367). 42 Basically, it was clear from the outset that Wałęsa and Mazowiecki would be the main presidential candidates. Wałęsa announced his candidacy in March 1990, and at the same time Mazowiecki’s close ally Jerzy Ciemniewski proposed Mazowiecki for future president (Brzeziecki, 2015: 444). 43 Mečiar’s HZDS came first in the elections, as it gained 27 percent of votes, but failed to form a cabinet (Kopeček, 2007: 164). 44 Another vociferous advocate of direct elections was President Kováč. In April 1997, Kováč made special addresses to citizens in which he strongly argued in favor of direct election and summarized some major arguments for this shift: (1) the rigid constitutional provisions requiring the three-­fifths majority in the National Council to elect the president may spoil future elections. In other words, Kováč expressed his doubts about the ability of parliamentary parties to strike a deal on his successor; (2)  the shortcomings of the constitution did not foresee the situation in which the

130   Beyond constitutions presidential position was vacant. In this case, there was no one to sign parliamentary bills into laws, to accept the resignation of the cabinet or to appoint a new cabinet; (3)  Kováč claimed that a directly elected president endowed with their own legitimacy was central to the future developments of Slovak democracy. A directly elected president was conceived of as a “correction” of narrow partisan interests; (4) direct election of the president was presented as another chance of citizens to freely affect the democratic polity and choose their own president without the mediating role of the political parties. Direct election was perceived as a trigger for a dialogue among citizens and a greater stability of the political system (Kováč, 1997). 45 The rigidity of this provision is even more apparent given the fact that the constitution did not reckon with a situation in which such a majority is not reached and no candidate is elected president. In this case, there was no one to sign parliamentary bills into law, to accept the resignation of the cabinet or to appoint a new cabinet. Thus, parliament, despite being deeply divided, was able to pass an amendment (in May 1998) that gave this power to the speaker of parliament (Malová and Rybář, 2008: 182–183; Mesežnikov, 1999: 21–22). 46 All 93 government coalition MPs voted for the amendment. Only one MP, Ivan Hudec (HZDS) voted against it, whereas 11 opposition MPs abstained from voting and 42 MPs were registered as absent, although most of them were present in the hall of the National Council (Just and Hladká, 2004). 47 Václav Havel himself also supported a direct presidential election at that time (Kopeček, 2010). 48 The Social Democrats as well as the Communists were also in favor of direct elections. 49 The election was first plagued by procedural disputes as to whether a secret ballot or recorded vote (by an open show of hands) should be used. In addition, information about threats to individual electors as well as blackmail and corruption emerged. Václav Klaus was finally re-­elected in the third round of the second ballot. Despite being eventually successful, the 2008 election left a bitter image of the parliamentary vote (Hloušek, 2008; Kopeček, 2012; Wintr, 2010), which in turn became one of few arguments for the adoption of direct elections in 2012. 50 Out of 192 deputies who were present, 159 voted for the motion while 3 MPs were against it and 30 abstained (the total number of deputies was 200). In the Senate, 75 out of 81 senators participated in the vote: 49 senators passed the motion; 22 voted against it and 4 abstained (Musilová and Šedo, 2013: 32–34).

7 Classification of Central European regimes

Having discussed the conceptual issues of semi-­presidentialism and parliamentarism as well as having analyzed the origins and constitutional developments of Central European democratic regimes, focusing mainly on formal presidential powers and their usage in actual constitutional and political practice, we now get to the question of how Central European regimes are classified and how they should be classified according to our system of categorization based on our conceptualization of semi-­presidentialism discussed in the first part of the book.

7.1  How are Central European regimes classified? When reviewing scholarly literature on Central European regimes, one cannot overlook the fact that scholars significantly differ in their classification; while some scholars claim that Poland, the Czech Republic and Slovakia are parliamentary regimes, other authors label them as semi-­presidential. With some simplification, we can argue that the former group of scholars includes mostly Central European political scientists and constitutional lawyers. The latter group mostly includes scholars writing in English.1 The classification of the Czech Republic and Slovakia has changed among this group of scholars with the introduction of popular elections in the two countries, whereas on the whole Central European scholars have not changed their assessment of the regimes despite the constitutional amendment. Elsewhere, we show that the key to this disagreement resides in a different theoretical (and also methodological) approach. Scholars writing in English who belong to the traditional post-­Duvergerian study of semi-­presidentialism use minimalist definitions as suggested by Elgie; hence, they tend to classify Central European regimes as semi-­presidential. In contrast, the other group of scholars remains faithful to Duverger’s concept of semi-­presidentialism, which, unlike Elgie and his followers, takes into account presidential powers. Thus, they tend to classify the regimes as parliamentary ones (Brunclík and Kubát, 2016b). 7.1.1  Czech, Polish and Slovak view It is quite typical in Central Europe for the intensity and content (e.g., policies, issues, themes) of debates on Central European regimes to almost always be

132   Classification of Central European regimes closely related to political and constitutional developments. This fact is most obvious in Poland, where a major discussion on the Polish regime was taking place in the 1990s when Poland was going through its complicated constitutional development. The discussion peaked in 1997 when Poland adopted the new constitution. The regime that existed between 1992 and 1997, which was based on the Little Constitution, was often described as “non-­parliamentary.” The “non-­parliamentary” form of government was interpreted in different ways according to which scholars tended to call the regime “semi-­presidential” (Bankowicz, 2013: 174), “mixed,” being “between the model of the Fifth French Republic and parliamentary cabinet model” (Graczyk, 1997: 90), “tending to parliamentary-­presidential system” (Ciapała, 1999: 39), “leaning on the French model” (the Fifth French Republic) (Kallas, 2003: 531), “premier-­presidential” (Jasiewicz, 1997: 147), a “hybrid of rationalized parliamentarism and semi-­ presidentialism” (Antoszewski, 2012: 50), etc. Those researchers not putting the term “parliamentarism” aside spoke about a parliamentarism “with a strengthened President” (Lisicka, 2002: 48), about presidential competences that went beyond the usual patterns of parliamentary regimes or about a regime that was partly parliamentary and partly had “nothing to do with parliamentarism” (Czajowski, 1993: 12–13). In contrast, there has been a clear scholarly consensus on how to classify the Polish regime after 1997, with experts unanimously considering the regime a parliamentary one. It should be noted that the term “parliamentary cabinet regime” had its roots in the Polish debate (Antoszewski, 2012: 55; Bankowicz, 2010: 176; Raciborski, 2003: 89–97; Wiatr, 2006: 154). In the Czech Republic, the discussion was not primarily concerned with the form of government as such but rather with the president, who has been a traditional object of the political science and constitutional law debate that occasionally comprises analyses of the president in the Czechoslovak political regime between 1918 and 1938 (Broklová, 2001; Mlejnek, 2014). In the past, there was almost a unanimous agreement that the Czech Republic was a parliamentary regime, even though the role of the president was very specific (see Chapter 6) (Filip, 2013; Gerloch et al., 2002; Kysela, 2008a; Kysela and Kühn, 2007; Vodička and Cabada, 2003; Wintr, 2006). The debate about the Czech political regime started after 2012, which was when direct election of the president was introduced, and accelerated in 2013 in connection with the first direct election of the president (Kopeček and Mlejnek, 2013). After the 2012 constitutional amendment and the 2013 presidential elections, some scholars indicated that the Czech Republic could move closer to a semi-­presidential model of governing (Kysela, 2013). Such conclusions about the tendency towards semi-­ presidentialism were, however, carefully formulated: “In the long term horizon the possibility even exists of a transformation from a parliamentary to semi-­ presidential regime” (Kopeček and Mlejnek, 2013: 75). Kudrna went even further to argue that the Czech Republic became a semi-­presidential regime (Kudrna, 2013), though such statements are rather rare. So far, most scholars have argued that despite the 2012 constitutional change, the Czech regime is still a parliamentary one (Bureš et al., 2012; Gerloch et al., 2013; Hloušek, 2014;

Classification of Central European regimes   133 Wintr, 2015). At the most, some argue that the direct election of the president “has moved it [the Czech regime] from the ideal form of parliamentarism” (Brunclík, 2014: 77) or that the Czech parliamentary regime is “deformed and dysfunctional” (Kubát, 2014: 55). In Slovakia, the debate has taken on a divergent tone, which has in turn been widely affected by the Slovak semi-­authoritarian regime during the 1990s. The problems involved in the consolidation of democracy in Slovakia became the most pertinent issues, whereas the question of the form of government was secondary. Even if such considerations about the form of government in Slovakia (clearly a parliamentary one) appeared, they were embedded in a formal constitutional context (Kresák, 1996). Furthermore, the introduction of the popular election of the president in 1999 was not driven by an effort to turn the Slovak parliamentary regime into a semi-­presidential one; rather, it was conceived as part and parcel of the democratic consolidation after Prime Minister Mečiar’s fall (Kopeček, 2006). All in all, discussion about the form of government after 1999 has been almost non-­existent. Even though some scholars have touched upon it, they do not view the Slovak regime as semi-­presidential in nature (Horváth, 2005; Spáč, 2013). 7.1.2  “Western” views Let us look at scholars writing in English, i.e., scholars based outside Central Europe and mostly publishing in English. By far the most ambiguities and distinctive conclusions have appeared in discussions on the Polish case. Whereas most scholars considered Poland to be a semi-­presidential regime (Goetz and Wollmann, 2001; Metcalf, 2000; Siaroff, 2003) or “moderate form of semi-­ presidentialism” (Sanford, 2002: 138) before 1997, other authors came to starkly contrasting conclusions, with some regarding Poland as a case of a “limited presidentialism” (Derbyshire and Derbyshire, 1996), whereas Baylis argues that “the parliamentary features of the Polish system appear to date to have dominated” (Baylis, 1996: 300). In 1997, Poland adopted a new constitution that severely limited the presidency and strengthened the cabinet and prime minister. Siaroff puts Poland among “parliamentary systems with a ‘presidential corrective’ ” (Siaroff, 2003: 308), Köker describes Poland as a “parliamentary system” (Köker, 2013) and Sanford views it as “prime ministerial-­parliamentarism” (Sanford, 2002: 138). However, other scholars (Elgie, 2011a; Gwiazda, 2016; Schleiter and Morgan-­Jones, 2009) have come to the opinion that Poland is a semi-­presidential regime, usually having adopted Elgie’s definition. As McMenamin symptomatically put it, “The 1997 Constitution reduced the President’s power to the benefit of the prime minister but most importantly it confirmed the semi-­presidential system in Poland” (McMenamin, 2008: 122). As far as the Czech Republic is concerned, the classification of its regime appeared almost unanimous: the Czech Republic was mostly regarded as a parliamentary regime (Baylis, 1996; Goetz and Wollmann, 2001; Schleiter and Morgan-­Jones, 2009). Only exceptionally has the Czech Republic been classified

134   Classification of Central European regimes instead as a “dual system” (Derbyshire and Derbyshire, 1996). It was not until 2012 (with the newly introduced popular election of the president) that this classification started to change. In line with his own definition of semi-­ presidentialism, Robert Elgie (2015) now considers the Czech Republic to be a semi-­presidential regime. The development among “Western” scholars of assessing the Slovak case has had a similar trajectory. Whereas prior to 1999 Slovakia was unambiguously classified as a parliamentary regime (Baylis, 1996; Derbyshire and Derbyshire, 1996; Easter, 1997), a number of studies published after 1999 have regarded Slovakia as a semi-­presidential regime (Protsyk, 2011), even though some scholars (Schleiter and Morgan-­Jones, 2009) still classify it as a parliamentary regime.

7.2  How should Central European regimes be classified? We argue that Slovakia and the Czech Republic have been parliamentary regimes since 1989, and Poland since 1997. This conclusion does not result only from our conceptualization of semi-­presidentialism (and parliamentarism; see Chapter 1), as we will hereby elaborate upon some additional arguments. First, although none of the constitutions explicitly states the parliamentary nature of the respective political regime, the key features of the parliamentary form of government can be clearly identified in the constitutions, and all countries under scrutiny here work in line with the logics of parliamentary regimes. Czech, Slovak and Polish regimes are based on the principle of separation of powers, which is, however, flexible because the legislative and executive powers are in fact closely aligned. The key principle is the responsibility of the chief executive, i.e., the government, to parliament. The government can work only with the confidence – or at the very least, the tolerance – of parliament, whereas presidents are not endowed with great powers. In addition, the government bears the brunt of responsibility for many presidential acts. Governments (composed of a prime minister and their cabinet members) are chief executives, i.e., executive bodies in charge of all areas of policy-­making. In other words, the governments wield real executive powers. In contrast, irrespective of their mode of elections, the presidency is designed as an institution that checks power rather than one that wields real executive and proactive, constructive power. The president’s primary role is not to formulate policies but to serve as a symbolic head of state with a number of controlling (checking), representative and notary powers, although their legitimacy has been boosted by direct election. Second, the parliamentary nature of the Central European regimes results from the constitutional history of those countries as well. This is particularly relevant for the Czech and Slovak Republics. The constitution makers in both countries deliberately carried on the tradition of the First Czechoslovak Republic, although Slovakia soon diverged from this tradition; regardless, parliamentary features of the Slovak regime remained in place, and were even strengthened in subsequent constitutional amendments. The Polish case is more complicated, but

Classification of Central European regimes   135 even there one can identify clear traditions of parliamentarism which have been respected, at least in a symbolic capacity. Third, explanatory reports on the Czech and Slovak governments’ proposals of the constitutions state that constitution makers intended to establish a parliamentary regime. For example, the explanatory report on the government proposal of the constitution states that 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 ultimately “relates to the traditions of the first republic” (Wintr, Antoš and Kysela, 2016: 145). Ladislav Orosz argues that in 1993, Slovak constitution makers declared their intention to establish a parliamentary form of government, yet they did not endow the president with the powers that are typically included in parliamentary regimes (for example, the Slovak president originally had insufficient powers to carry out the role of arbiter) (Orosz et al., 2009: 116). Thus, the explanatory report on the 1999 amendment that introduced direct presidential elections clearly states that the “changes of the position of the president seek to move his position to a model, which is typical for modern parliamentary democracies” (Orosz, 2013: 8–9). The situation in Poland is more ambiguous because it is not possible to identify a single main draft of the constitution supported by an explanatory report to this draft that would clearly delineate the proposed regime type. Parliamentary work on the new constitution took several years – from 1993 to 1997 – and the relevant parliamentary constitutional commissions had to deal with a large number of constitutional drafts from political parties as well as a civilian proposal, with individual proposals varying considerably (Chruściak, 1997a, 1997b). On the other hand, if we study the course of parliamentary work and discussions on the constitutional drafts, we find that the prevailing opinion was in favor of the idea that the new constitution should bring about a parliamentary, or a parliamentary-­cabinet, regime. Voices calling for some form of “mixed” regime did exist but were only representative of a minority opinion (Chrušciak, 1997c). Fourth, the parliamentary regime is similarly confirmed by constitutional law and by several rulings by the Constitutional Courts. In all three countries discussed, we can find rulings from the constitutional courts which either explicitly or implicitly confirm the parliamentary form of government in the Czech and Slovak cases and the parliamentary-­cabinet regime in the Polish case. In the Czech Republic, even after the introduction of popular election of the president in 2012, the Constitutional Court claimed that the constitutional amendment did not affect the major principles of the Czech parliamentary form of government (see Wintr, 2015: 68; Wintr, Antoš and Kysela, 2016: 146–147). Moreover, in resolving a dispute over the appointment of the attorney general, the Slovak Constitutional Court ruled that the constitution still “undoubtedly comes from the concept of parliamentary form of government,” which is “one of the key features of the Constitution” (Ústavný súd, 2014; cf. Ústavný súd, 2012). The Polish Constitutional Tribunal confirmed the parliamentary-­cabinet form of the Polish regime, among others, in its ruling related to an investigation committee in 2008.2

136   Classification of Central European regimes Fifth, there has traditionally been a strong consensus in academia, as is demonstrated above. In addition, an overwhelming majority of the political representation in all three countries has always been supportive of the parliamentary character of their polities.

Notes 1 By scholars writing in English, we mean those of any nationality who publish mostly in English and who are based in research institutions in Western Europe and the US. In contrast, the Central European scholars are those whose workplace is in one of the Central European countries: Poland, the Czech Republic and Slovakia. They mostly publish in their native languages. 2 http://ipo.trybunal.gov.pl/ipo/Sprawa?cid=1&dokument=4977&sprawa=4551

Conclusion

The general aim of this book has been to explore and assess the major patterns of presidential politics in three Central European countries (Poland, the Czech Republic and Slovakia) almost three decades after they started down the path to democracy. The countries share a similar past of Communist regimes and the post-­1989 trajectory of democratic regimes. These facts create a great opportunity for a comparative study of the constitutional as well as political developments of Central European presidencies. We have adopted several different perspectives in order to get a relatively precise picture of the phenomena. The book begins with a theoretical/conceptual perspective on Central European regimes, showing that they are sometimes classified as parliamentary and sometimes as semi-­presidential regimes (Chapter 1). We are particularly concerned with semi-­presidentialism, which has remained an ambiguous concept. Contrary to the view held by some scholars, who argue that the concept of semi-­presidentialism should be abandoned because of the lack of clarity the concept has to offer (since it is not clear which empirical cases should be subsumed under the concept of semi-­presidentialism), we contend that the concept is relevant and useful for political research. However, unlike a lot of scholars who have adopted the minimalist definition of semi-­presidentialism suggested by Robert Elgie (1999), who eliminated the notion of presidential powers from the original definition given by Duverger, we affirm that presidential powers are essential to understanding semi-­presidentialism. Hence, we have outlined an innovative definition of semi-­ presidentialism that is built on presidential powers and which carries on the Duvergerian tradition in the researching of semi-­presidentialism. Our definition is institutionalist, i.e., based on formal constitutional powers and provisions regulating the position of the president, the government and parliament. We argue that presidential powers and not the mode of presidential elections are crucial to the functioning of the regimes (i.e., actual constitutional practice) and their classification into distinctive regime types. In terms of our conceptualization of semi-­ presidentialism, we argue that none of the regimes properly fit the concept. Instead, we regard all countries discussed here to be parliamentary regimes because they meet only one defining feature of our concept of semi-­presidentialism: direct presidential elections. However, we argue that the mode of the election of the head of state is irrelevant for understanding and defining parliamentary regimes. Thus,

138   Conclusion the direct election – although an atypical feature for classic parliamentary regimes – by no means undermines our conclusion that the Central European regimes, which include directly elected presidents, are parliamentary regimes, which is also corroborated by the constitutional logic of the three regimes as well as by the actual constitutional practice. We believe that by exploring the developments of constitutional systems (with a particular focus on the presidency) as well as various factors, the motivations and the expectations that were connected to these developments and constitutional amendments significantly contribute to the understanding of presidential politics in Central Europe. Thus, the book goes on to analyze the origins and the developments of Central European democratic regimes in Chapter 2. This chapter also discusses an array of constitutional and political legacies related to the presidency which date back to the interwar period at least. This is especially relevant for the Czech and Slovak Republics, where the institution of the presidency was not eliminated from the constitutional system during the Communist era, which was rather exceptional. Although the three countries originally made different constitutional choices (Poland in the early 1990s could notably be regarded as a semi-­presidential regime), all the countries now share a directly elected president without much real power. Chapter 2 is also concerned with why certain constitutional amendments that affected the presidency were adopted. After the analysis of the origins and developments of the three constitutional systems, the book shifts its attention to the formal position of Central European presidents in their individual constitutional systems as well as their formal presidential powers, which is the key to any analysis of presidential politics (Chapter 3). The formal powers are very diverse, not only in terms of the substantial areas the powers are related to but also in terms of the degree of independence presidents enjoy in exercising them. Thus, we structure the analysis of formal presidential powers in two ways. First, we differentiate the degree of independence presidents may use when exercising their powers: independent powers (presidents use these powers completely independently); shared powers (presidents exercise the powers with another constitutional body); and contingent powers (presidents may use them only in certain situations). Second, in line with traditional accounts of presidential powers, we distinguish between legislative and non-­legislative powers. As a result, our analysis of presidential powers is accomplished by a calculated analysis of presidential powers based on the abovementioned criteria. We show that in these purely formal terms, Central European presidents are generally endowed with a very similar set of powers, although the Polish president is slightly more powerful than the Czech and Slovak presidents. Despite the fact that the catalogues of the formal presidential powers of Central European presidents are quite long, we show that few presidential powers are designed to be independent. We also show that our index of presidential powers should be understood only as an auxiliary tool in the analysis of presidential power, which is confirmed in one of the subsequent chapters that deals with the actual usage of presidential powers. The subsequent chapter

Conclusion   139 completes the picture of Central European presidents with the analysis on how presidents have used their powers in practice. We had no ambition to provide a systematic account of the actual usage of the powers. Instead, we have sought to formulate several generalizations based on our observations as a whole during the post-­1989 period. In addition, we have provided a sample of serious constitutional conflicts with other constitutional bodies. These conflicts either illustrate our general points or, in contrast, show notable deviations from prevailing patterns of the execution of the formal powers. This chapter clearly illustrates that presidents are not powerful in formal terms or in real terms. In other words, Central European presidents are not real holders of executive power. This is undoubtedly in the hands of the cabinet and prime minister, and the presidents have respected this fact, although they have occasionally attempted to move beyond the limits of their constitutional powers and have broken constitutional conventions (leading them into conflict with other constitutional players). Perhaps only Czech President Miloš Zeman made a significant effort to become the executive leader in 2013. However, he could only pursue this route indirectly through his political allies in the cabinet or the parliament, given the lack of direct presidential powers that would allow him to effectively deliver his policies. His efforts were not successful in the end. Thus, given the fact that he failed to change the functioning of the key constitutional institutions, the Czech Republic has remained a parliamentary regime not only in formal terms but also in practical political terms. All in all, the presidents of Central Europe work as a check on executive and legislative power because their powers are rather reactive, as they have been constructed with the ability to break but not initiate political actions: their most significant powers are in the legislative process (legislative veto, referring bills to constitutional courts), in relation to the government (they play an important role in the government formation process), as well as in appointing various state officials. However, the presidents lack proactive positive powers that would allow them to formulate policies, and presidents have respected that fact. With the exception of Poland, where the president disposes of the power to initiate legislation, Central European presidents have only indirect tools to affect policy After this, the book enquires into Central European presidents from the perspective of their accountability (Chapter 5) and informal powers and their sources (Chapter 6). We argue that it is essential to take into account four factors that strongly contribute to our understanding of Central European presidencies. First, past political legacies became important factors in legitimizing the behavior of contemporary presidents, and this has been especially relevant to the Czech Republic, whose constitution and political elites make explicit reference to the First Czechoslovak Republic characterized by formally weak, yet in practice highly influential, active and powerful presidential figures. Second, we also explore public attitudes towards presidents in terms of their popularity and the general public’s expectations about the appropriate behavior of the president. As for the former phenomenon, Central European presidents generally enjoy a considerable degree of popularity, at least in comparison to other constitutional

140   Conclusion bodies. At the same time, however, in all listed countries, there has been a strong consensus that the countries shall be based on the rules of the parliamentary regime and that the president – irrespective of the mode of election – is supposed to be neither a ruling president nor a president that effectively participates in executive decision-­making. Third, another highly important source of informal power is the president’s relationship to political parties. Although most of the presidents entered office as former leading partisan figures and even prime ministers, all of them subscribed to the idea of a non-­partisan presidency. As a result, in most cases, presidents lacked a real partisan background, which in turn effectively undermined their overall power. Finally, we discuss the role of the popular election, which, in contrast to our third point, potentially increases overall presidential power. Although direct elections were adopted at different times and under different circumstances in Central European countries, nowhere was it regarded as a tool to strengthen the president, not to mention the notion of establishing a ruling president. Still, some directly elected presidents (e.g., Miloš Zeman in the Czech Republic) have justified their activism by their mandate being derived from direct elections. The last chapter gets back to conceptual issues (Chapter 7). It shows a clear division among scholars as to the way Central European regimes are classified. This chapter argues that this division is led by, on the one hand, Central European scholars and, on the other hand, scholars writing in English. In line with our understanding and conceptualization of semi-­presidentialism, we argue that Poland, the Czech Republic and Slovakia have parliamentary regimes. This argument is further fostered by other evidence, such as rulings of the constitutional courts, the general understanding of these regimes in political as well as academic circles and by historical constitutional legacies of the three countries.

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Index

Page numbers in bold denote tables. accountability/responsibility 13, 22, 40, 45, 51, 53, 70, 96; of the president 5, 10, 12, 16, 18, 38–39, 50, 93–98, 110, 139; of the prime minister (cabinet) 10, 12–14, 16, 18–19, 21, 27, 34–35, 38, 39, 41, 50, 56, 63, 74, 80, 92, 94, 96, 134–135 Adamec, Ladislav 125 Alliance of Democratic Left 117–118, 129 Amendment to the Constitution; April 1989 41–42, 54, 59–61, 64–65, 84–85, 128; December 1989 42, 54, 59–60, 128; Polish 1976 40; Polish 1982 40, 45, 98 Anckar, Dag 11, 11 ANO 112 Antoszewski, Andrzej 12 Austria 7, 9, 14, 22, 25, 37, 48 Austria-Hungary 25, 47, 100, 127 Babiš, Andrej 82, 95, 112 Bahro, Horst 21 Banking Council of the Czech National Bank 61 Bankowicz, Marek 12 Bárta, Zdeněk 94 Belka, Marek 85, 91 Bell, David 9 Bellen van der, Alexander 22 Beneš, Edvard 25, 33, 100, 102, 126–127 Beyme von, Klaus 9, 20 bicameralism: Czech 32; Czechoslovak 27, 47; Polish 43–45, 50 Bielecki, Jan Krzysztof 84 Bierut, Bolesław 50, 103 Bloc for Poland 129 Bobošíková, Jana 128

Borowski, Marek 117 branch: executive 1–4, 6–13, 15–20, 22, 30–32, 34–36, 38, 43–44, 50, 52–55, 61, 68, 71–72, 86, 100–101, 108–110, 120, 134–135, 139–140; judicial 50, 54–55, 86; legislative 6, 16, 22, 35–36, 38, 43, 50, 53–55, 71, 134 Bratislava Castle 102 Brožová, Iva 92 Cabinet Council 61, 67, 85–86 Carey, John M. 8, 21, 52, 66 Center Agreement 121 Čentéš, Jozef 89 Chamber of Deputies of the Parliament of the Czech Republic 21, 32, 35, 49, 57–58, 62–63, 69, 81, 94, 126 Cheer Up Party 128 Chief of State 38, 50, 103 Christian Democratic Union – Czechoslovak People’s Party 81 Čič, Milan 31 Ciemniewski, Jerzy 129 Cimoszewicz, Włodzimierz 117 Cisleithania 127 Citizens’ Rights Party – Zeman’s Followers 112 Citizens’ Rights Party 112, 128 Civic Democratic Alliance 32, 73 Civic Democratic Party 72–73, 80–81, 90–91, 111 Civic Forum 28, 48, 111, 128 Civic Movement 125 Civic Platform 78, 109 Čižnár, Jozef 89 Coalition of Four, The 72, 125 cohabitation 14, 22

166   Index Communist Coup 1948 27, 48, 101 Communist Party of Bohemia and Moravia 49, 81, 126, 128, 130 Communist Party of Czechoslovakia 27–29, 48–49, 125 Communist Party: Czech 49, 81, 126, 128, 130; Czechoslovak 27–29, 48–49, 125; Polish 39–40, 42, 51 Confederation of National Forces of Slovakia 129 consensual democracy 36 consociational democracy 47 consolidated democracy 1, 122, 124, 133 Constitution: Austrian 1867 25, 47; Austrian 1945 48; Czech 1992 24, 30–36, 46–49, 53, 57–58, 60, 62, 69, 80–82, 93–95, 97, 101, 134–135, 139; Czechoslovak 1918 25, 38; Czechoslovak 1920 24–25, 34, 38, 49, 101; Czechoslovak 1948 26–28, 101; Czechoslovak 1960 26–29, 34, 48–49, 101; Czechoslovak 1968 (Constitutional law of the Czechoslovak federation) 26–28, 34, 48, 101; Finnish 1919 21; Finnish 2000 21; French 1875 25; French 1958 7, 22; German 1949 46, 48; Greek 1975 48; Hungarian 1949 51; Hungarian 2011 51; Irish 1937 20; Polish 1791 37, 44, 50–51; Polish 1919 38, 45, 50; Polish 1921 38–39, 44, 50; Polish 1935 38–39, 103; Polish 1947 39, 44–45; Polish 1952 39–40, 42, 45, 50, 121; Polish 1992 43–46, 54, 59–61, 64–65, 84–85, 128, 132; Polish 1997 43–46, 51–52, 55, 59–61, 64–65, 67, 69–70, 84–85, 91, 96–98, 109, 133–134; Portuguese 1982 21, 48; Slovak 1992 24, 30–35, 46–49, 53, 58–59, 61, 69, 87, 89, 95, 123–124, 129–130, 134; Slovak 1939 33; Spanish 1978 48; US 1787 25, 50; USSR 1936 39 constitutional conventions 2–3, 15, 62, 69, 80–82 Constitutional Court/Tribunal: Czech 32, 34, 57–58, 64, 66–68, 71–72, 80, 86–87, 89–90, 92, 94–95, 135, 139–140; Polish 40–41, 44–45, 51, 67­–8, 71, 75, 77, 80, 86–90, 93, 135, 139–140; Slovak 34, 53, 58–59, 67–68, 71, 73–75, 80, 83, 86–90, 96, 135, 139–140 constitution-making 24, 29–31, 33, 40–43, 46–48 constructive vote of no confidence 19, 32, 43–44, 46, 48–49

Crimea 94, 129 Croatia 20 Ćwiek, Jerzy 97 Cyril and Methodius 34 Czech Republic: current (since 1993) 1–2, 4–5, 12, 23–24, 26, 28–29, 32–38, 46–47, 49, 52–54, 57–60, 62, 67, 69, 72, 80–83, 85–88, 90, 93–95, 97, 99–104, 107, 110–111, 116, 119–120, 124–125, 127, 131–140; Socialist (1968–1989) 27; within Czechoslovakia (1989–1992) 24, 29–31, 48–49, 134 Czech Social Democratic Party 72, 111–112, 130 Czechoslovakia: Communist (1948–1989) 26–28, 34–36, 99, 101, 127–128; First Republic (1918–1938) 24–28, 32–33, 36, 38, 46–47, 49, 91, 99–102, 110, 132, 134, 139; Post-November (1989–1993) 24, 28–29, 31, 33, 47, 49, 99, 103, 110, 127; Second Republic (1938–1939) 26, 99, 101; Third Republic (1945–1948) 26, 33, 99 Czechoslovakism 26, 33 democratic centralism 27 democratic transition: Czechoslovak 28–29, 48, 100, 122, 126; Hungarian 51; Polish 40, 42, 45–46, 65, 84, 116, 120, 122, 126 Dienstbier, Jiří 112 Directorate 47, 51 Doyle, David 70 dual executive 8, 10–12, 15–16, 61 Duda, Andrzej 77, 86–87, 108, 119 Dudek, Antoni 122 Duverger, Maurice 3–4, 6–8, 10–11, 13–14, 17–21, 68, 131, 137 Duverger’s paradox 21 Dzurinda, Mikuláš 73, 87, 91, 114–115, 124 elections: parliamentary (Czech 24, 28–31, 80, 91, 112, 125, 128; Polish 41–42, 45, 51, 78, 84, 117, 121, 129; Slovak 24, 28–31, 82–83, 114–115, 123–124, 129); presidential (Czech 111–112, 125, 128, 130, 132; direct 2–5, 30, 34–35, 42, 45, 74–76, 91, 93–94, 97, 120–123, 125–126, 129–130, 132–135, 137–138, 140; indirect (parliamentary) 18, 122, 124–125; Polish 42, 45, 78, 91, 116–120, 129; popular 1–2, 4–5, 7, 9, 16, 18–21, 28, 46, 74, 99, 112, 120–122,

Index   167 124–126, 131, 133–135, 140; Slovak 35, 75, 107, 113–115, 123–124) electoral system: majoritarian 32; proportional 29, 47 Elgie, Robert 13, 21, 131, 133–134, 137 Europe: Central 1–5, 12, 23, 52–53, 55, 57, 66–68, 71, 74, 89–90, 93, 97, 99–100, 103–104, 110, 120, 124, 131–134, 136–140; East Central 1, 17, 20, 43, 99; Eastern 20, 27, 43; Postcommunist 20; Western 20, 37, 99, 136 European Constitution 88 European Council 88 European Social Charter 95 European Union 74, 76, 79, 88, 90, 94, 129

Gross, Stanislav 81 Grulich, Václav 91

Federal Assembly 27, 29, 47 Fico, Robert 73, 107, 115 Finland 7, 9, 14, 21–22 Fischer, Jan 101 FOCUS 107, 127 Fortin, Jessica 70 France: Fifth Republic 7, 9, 14, 21–22, 132; Third Republic 25, 38 Franz Joseph I 47, 100 Freedom and Solidarity 75 Freedom Union 81, 111 Friends of Miloš Zeman 112 Frye, Timothy 66

Iceland 7, 9, 14, 22 Illiberal democracy 35 Impeachment 94–95 Institute for Public Affairs 127 Intra-executive conflict 4, 31 Invasion of Czechoslovakia 1968 101 Ireland 7, 9, 14, 20 Italy: Fascist (1922–1943) 27; First Republic (1948–1992) 21; Second Republic (1992–) 21

Gašparovič, Ivan 47, 73, 75, 83, 87, 89, 91, 107, 114–115 Gaulle de, Charles 22 Gazeta Wyborcza 121 General Inspector of the Armed Forces 39 general prosecutor 89, 92 Germany: Contemporary (1945–) 32, 46–49; Nazi (1933–1945) 26–27, 33, 102; Weimar (1919–1933) 7, 9 Gottwald, Klement 28, 48–49 government formation process 11, 16, 20; Czech 62, 80–81, 90, 139; Polish 43, 64–65, 83–85, 90, 139; Slovak 63, 68, 82, 139 government/cabinet: caretaker 30, 83; Czech 48–49, 72–73, 81–82, 87–88, 90–91, 101; Czechoslovak 28; Polish 41, 50–51, 75, 84–86, 88, 91, 109, 119; presidential 62, 81; Slovak 48, 73–74, 83, 87, 89, 102, 114–115, 122–124, 129; technocratic 81, 101 Graczyk, Roman 45 Great Moravia 33, 49 Greece 48

Havel, Václav 30, 33, 48–49, 72–73, 78, 80–81, 87, 90–91, 100, 105–106, 110–111, 125, 128, 130 Hayek, Friedrich, A. 32 Hendrych, Dušan 30 Herbut, Ryszard 12 Hloušek, Vít 12, 21 Hofer, Norbert 22 Holy Roman Empire 101 Hudec, Ivan 130 Husák, Gustáv 28, 33, 49 Hyphen War 47

Jaruzelski, Wojciech 41–42, 45, 50–51, 77, 84, 103, 116, 120–121 Jastrzębski, Dominik 97 Kaczyński, Jarosław 75, 103, 108–109, 118–119, 121 Kaczyński, Lech 75, 77–78, 86, 88, 108–109, 117–118 Kaliňák, Robert 115 Kavan, Jan 91 Kiska, Andrej 73, 86–87, 107, 115–116 Kiszczak, Czesław 84 Klaus, Václav 30–31, 72–73, 80–82, 86, 88–92, 94–95, 97, 100, 105–106, 111, 125, 127–128, 130 Kňažko, Milan 83 Kochanowski, Janusz 44 Komorowski, Bronisław 77–78, 86, 108, 118–119 Kopacz, Ewa 118 Kopeček, Lubomír 12 Kopecký, Petr 47, 49 Kościuszko, Tadeusz 50, 103 Kotleba – People’s Party Our Slovakia 129 Kováč, Michal 73–75, 82–83, 96, 102, 107, 113–114, 122–124, 129–130 Kroupa, Daniel 32

168   Index Kudrna, Jan 49, 132 Kwaśniewski, Aleksander 77, 84–86, 108, 117–118, 129 Kysela, Jan 47, 100 Lány 128 Lány Putsch 112 Law and Justice 44, 51, 78, 87, 103, 108–109, 117–119 League of Polish Families 44 Lenin, Vladimir I. 49 Lexa, Ivan 83 Lijphart, Arendt 8–9, 14, 36, 47 Linz, Juan 10 Lisbon Treaty 90 Little Constitution 38–39, 43–46, 50, 54, 59–61, 64–65, 84, 132 Loewenstein, Karl 21 Lux, Josef 81 Mach, Petr 128 Mainwaring, Scott 10 Marcinkiewicz, Kazimierz 109 Martial law 1981 50–51 Marxism-Leninism 29, 39 Masaryk, Tomáš Garrigue 25, 33, 47, 49, 100, 102, 105, 126–127 May Coup 1926 38 Mazowiecki, Tadeusz 117, 121, 129 Measuring presidential powers 3–4, 55–57, 66, 69 Mečiar, Vladimír 31, 35, 73–75, 82–83, 102, 107, 113–114, 122–124, 129, 133 Mečiarism 36, 122, 124, 126 Merkel, Wolfgang 8 Metcalf, Lee Kendall 52, 66 Michnik, Adam 121 Mikloš, Ivan 83 Military Council of National Salvation 50 Mlejnek, Josef 32 Monetary Policy Council 61, 67 Montesquieu, Charles L. 37 Movement for Democracy 114 Movement for Democratic Slovakia 31, 76, 113–114, 123, 129–130 Munich Treaty 101 Munkh-Erdene, Lhamsuren 19 Mussolini, Benito 27 National Assembly 9; Czechoslovak 27, 126; Polish 96, 120–121 National Council of Radio Broadcasting and Television 96 National Council of the Judiciary 87

National Council: Czech 28–29, 48; Slovak 28–29, 31, 53, 58–59, 63–64, 70, 95, 97, 113, 123–124, 129–130 National Front 29 National/Central Bank 57, 67, 80; Czech 68, 81, 87; Polish 61, 67, 69, 96; Slovak 87 NATO 76, 91, 123 Nečas, Petr 49, 72, 81 non-confrontational elections 41 Nonpartisan Bloc for Cooperation with the Government 129 Nonpartisan Bloc for the Support of Reforms 117 Novák, Miroslav 12 Novotný, Antonín 28 Olejniczak, Wojciech 117 Olszewski, Jan 84–85 Omudsman 40–41, 44 O’Neil, Patric 10 Opposition Agreement 72, 90 Otero, Paulo 21 Paroubek, Jiří 88 Party of Civic Understanding 114, 129 Party of Democratic Left 113 Party of Free Citizens 128 Party of the Hungarian Coalition 49 Pasquino, Gianfranco 10, 15 path-dependency 23, 46 people’s democracy 40 Piłsudski, Józef 50, 103, 129 Pithart, Petr 48 Plank, Juraj 48 Poland: First Rzeczpospolita (1569–1795) 37; People’s Republic (1944–1989) 39–40, 42, 98; Second Republic (1918–1939) 38, 98; Third Republic (1989–) 1–2, 4–5, 8, 20, 23–24, 36–37, 40, 42–44, 46, 50–52, 54–55, 59–62, 64–65, 67–69, 75, 78–79, 83, 85, 87–93, 96, 102–104, 107, 109, 116, 119–122, 126, 129, 131–140 Polish United Workers’ Party 116 political regime/system: authoritarian 103, 129; dual 134; English 37; French-style 9, 43; hybrid 9, 22, 122, 132; hyperpresidential 21; limited presidential 133; mixed 9, 15, 21, 132, 135; neopresidential 21; parliamentary 1–2, 4–9, 12–20, 22, 25–27, 32, 34–39, 46, 49, 53, 93, 95, 100, 109–110, 131–140 (prime ministerial 133;

Index   169 rationalized 1–2, 18, 21, 32, 43, 46, 48–49, 132; tamed 21); parliamentarypresidential 21, 132; parliamentarycabinet 132, 135; premier-presidential 8, 14, 21, 132; presidential 2, 6–9, 13–15, 17–20, 44, 109; presidentialparliamentary 8, 21; quasi-totalitarian 26; semi-authoritarian 133; semidemocratic 26, 36, 42; semi-presidential 1–22, 68, 109, 127, 131–134, 137–138, 140 (highly-presidentialized 13; with a balance of executive powers 13; with ceremonial president 13); undemocratic 38, 40; Westminster 20 Portugal 14, 21, 48 Prague Castle 25, 81, 101–102, 127–128 Prague Spring 100 president: above-partisan/non-partisan 105, 107, 110, 113–119, 128–129, 140; all-nation 119; Czech 1–5, 12, 20, 30, 32, 34–35, 46, 48, 52–53, 55, 57–58, 60–63, 66–69, 71–73, 80–82, 86–95, 97, 99–106, 110–113, 119–120, 124–126, 128, 130, 132–135, 137–140; Czechoslovak 25–28, 33, 35, 48–49, 99–102, 110, 126–127, 132; Polish 1–5, 12, 20, 38–46, 50, 52–55, 59–61, 64–71, 74–79, 83–93, 96–97, 102–104, 107–110, 116–122, 126, 128–129, 133–134, 137–140; Slovak 1–5, 12, 20, 33–35, 46–47, 52–53, 55, 58–59, 61, 63–64, 66–69, 71–75, 82–83, 86–87, 89–91, 93, 95–97, 102–104, 106–107, 110, 113–116, 119–120, 122–124, 126–127, 129–130, 133–135, 137–140 presidential powers: contingent 16, 52, 55–56, 59–60, 62–64, 66, 68, 138; executive 1, 3, 9–13, 15–20, 22, 35–36, 43, 52–54, 68, 101, 109–110, 120, 134, 139–140; formal 2–4, 11, 25, 52, 71, 80, 89–90, 99, 101, 120, 126, 131, 137–139; independent 16, 52–53, 55–57, 59–61, 66, 68, 90, 110, 120, 138; informal 2–5, 120, 139–140; legislative 22, 35, 52, 56–60, 66–68, 71, 73, 75, 86, 89, 138–139; non-legislative 52, 56–57, 60–64, 66–68, 71, 80, 82–83, 86, 90, 138; shared 16–18, 52, 55–56, 60, 66, 68–69, 95, 138; veto power 11, 30, 50, 56–59, 67–68, 71–73, 75, 77, 87, 89, 91, 114, 119, 139 Protectorate of Bohemia and Moravia 26 Prussia 37 Public Opinion Research Center 107

Public Opinion Research Center of the Institute of Sociology of the Czech Academy of Sciences 127 public opinion surveys 27, 104–105, 107–109, 125, 127–128 Radičová, Iveta 73, 83, 89 Rath, David 91 Reestman, Jan Herman 9 Referendum: Czech 30, 48, 72, 90; Polish 40, 51, 60, 78–79, 91; Slovak 59, 74–75, 91, 123 Romania 8 Roundtable Talks 40, 42, 45, 51, 116 Rousseau, Jean J. 37 Rudolfinum address/speech 73, 78 Rusnok, Jiří 81, 101 Russia 37, 94, 129 Rydz-Śmigły, Edward 39, 103 Samuels, David J. 21 Sartori, Giovanni 11, 14–15, 18, 21–22 Schuster, Rudolf 73, 75, 114, 124, 127 Schwarzenberg, Karel 91 Šedo, Jakub 12 Sejm 37–45, 50–51, 54–55, 59–60, 64–65, 69–70, 79, 83–85, 87, 91–92, 96–97, 118, 129 Self-Defense 44 “semi-competitive” elections 41, 45, 121 Senate: Czech 32, 35, 57, 63, 66, 86, 94–95, 126, 130; Polish 41, 43–45, 54–55, 70, 79, 96 separation of state powers 18, 22–23, 25, 27, 37–40, 42, 50, 52–55, 134 Shugart, Matthew Soberg 8, 14, 20–21, 52, 66 Skach, Cindy 10, 21 Skilling, Gordon 47 Slovak Democratic Coalition 49 Slovak secret service 83 Slovakia: Independent (1993–) 1–2, 4–5, 20, 23–24, 26–31, 33–37, 46–49, 52–54, 57–61, 63, 67, 73–74, 76, 82, 85–91, 93, 95, 102–104, 107, 110, 113–114, 116, 119–120, 122–124, 126–127, 131, 133–138, 140; Socialist (1968–1989) 27; Wartime (1939–1945) 26–27, 33, 36, 102–103; within Czechoslovakia (1918–1939 1948–1989 1989–1993) 26, 29, 31 Slovenia 20 SMER – Social Democracy 75–76, 114–115, 129

170   Index Sobotka, Bohuslav 82, 91, 94–95, 111, 128 Social Democracy of the Republic of Poland 129 Socialism/Socialist state 27, 29, 40–41 solidarity 42, 45, 78, 103, 116–117, 120 Spáč, Peter 26 Spain 48 Špidla, Vladimír 72 State Council 40–41, 50, 54, 99 Suchocka, Hanna 84 Supreme Chamber of Control 96 Supreme Court 87, 92–93, 97 Svoboda, Ludvík 100 Tiso, Jozef 33, 102 Tošovský, Josef 81, 101 Transleithania 127 Treaty Establishing the European Stability Mechanism 95 Tribunal of State 37, 40, 44–45, 96–98 Tudjman, Franjo 20

Tusk, Donald 75, 88, 109, 118 Ukraine 94 Uniformity of state powers 38 Union of Soviet Socialist Republics/Soviet 27, 39, 39–40, 54, 99 United Kingdom 20 United States of America 5, 50 Vedel, Georges 14 Velvet: Divorce 28–31; Revolution 28 Wałęsa, Lech 42, 45, 77–78, 84–86, 90–91, 103, 108–109, 116–117, 120–121, 128–129 War on the Top 116, 120–121 Warsaw Pact 101 Wiatr, Jerzy J. 12 Zeman, Miloš 72, 81–82, 87, 91, 94–95, 97, 104–106, 111–113, 120, 128, 139–140