Abstract
Academics usually look for constitutional conventions in Westminster-style democracies, such as the United Kingdom, Canada, or Australia. Nevertheless, growing evidence from practice shows that constitutional conventions are similarly essential attributes of even substantially different political regimes. This article is the first paper to systematically deal with constitutional conventions in the Czech Republic. To be more specific, I identify eight existing constitutional conventions there: (1) respect for the parliamentary majority, (2) institution of a formateur, (3) simultaneous existence of two prime ministers, (4) new cabinet’s statement of policy, (5) delegation of negotiation and ratification of international treaties, (6) appointment of a (vice-)governor of the Czech National Bank without a countersignature, (7) missing signature of the president under laws, and (8) single vice-chairperson of the Supreme Court. On one hand, the scrutiny shows that constitutional conventions play an already established and important role even in a Central European democracy. On the other hand, the lack of political respect for unwritten rules and the relative immaturity of Czech democracy confirm that constitutional conventions are as fragile (or as strong) as political actors allow. Thanks to these facts, the study of constitutional conventions in the post-communist country is a precious laboratory with universal findings even for long-existing democracies.
Introduction
The phenomenon of constitutional conventions was first described in Westminster-style democracies, such as the United Kingdom, Canada, and Australia. In recent years, the question of constitutional conventions’ existence even in other countries has drawn attention. Nonetheless, these debates have still revolved mainly around long-lasting Western democracies, for instance, the United States or Germany. Today, the first pioneering scholars start to focus on the existence of constitutional conventions even in relatively new democratic regimes, for instance, in Central and Eastern Europe (CEE). This should not be surprising since human interactions often create some habits and conventions of behaviour. Still, we are missing systematic analyses of constitutional conventions in some of the aforementioned countries.
To be more specific, the Czech Republic proves to be an interesting yet unresearched case. In 2013, after the fall of Petr Nečas’ cabinet, Czech President Miloš Zeman named a caretaker prime minister, Jiří Rusnok, regardless of a declared majority in the Chamber of Deputies. Zeman explained that it was his right to select a new prime minister and that the constitutional conventions respecting the majority were “idiotic.” 1 Zeman clarified his move as follows: “The president, although directly elected, cannot change the Constitution, but of course has the sacred right to change conventions that are not enshrined in the Constitution.” 2 However, the president of the Constitutional Court Pavel Rychetský opposed this view, saying that “constitutional conventions are like the wife of detective Columbo, we are always looking for them.” 3
The two statements present evidence of the existence as well as the complicated position of constitutional conventions in post-communist countries compared to Westminster-style democracies. Constitutional conventions are hard to define due to their unwritten and changeable nature, even in long-standing states. Although this applies to every regime, the revelation of constitutional conventions in CEE post-communist democracies is even more complicated as they have existed for “only” three decades. Consequently, respect for unwritten rules of behaviour has a long tradition in Western European countries compared to CEE. As a result, constitutional conventions here arise and exist within a specific political environment. These qualities make the Czech case highly informative from the perspective of not only other CEE countries but also long-existing democracies.
This article delivers the very first systematic analysis of constitutional conventions in the Czech Republic. To be more specific, I identify and elaborate on eight established constitutional conventions. Overall, the article delivers three important conclusions. First, the basic identification of the constitutional conventions in the Czech Republic is an essential discovery in an as yet under-researched region. Second, political practice demonstrates that constitutional conventions already play an established and important role even in a CEE democracy. Third, recent events in the Czech Republic are the best evidence that constitutional conventions are as fragile (or as strong) as political actors allow. Importantly, this attribute of constitutional conventions has been predominantly described in theory. Nonetheless, it is a constant practice in the Czech Republic due to institutional clashes and the lack of political respect for unwritten rules typical of a relatively young democracy.
The article is separated into four parts. First, I describe the theory of identifying constitutional conventions. Second, I summarise the existing knowledge about constitutional conventions in the Czech Republic. Third, I delineate eight already existing constitutional conventions in the country. Finally, I discuss the patterns of the constitutional conventions and reveal generally valid conclusions.
Identification of Constitutional Conventions
The concept of constitutional conventions originated in the United Kingdom. For centuries, the country has relied on an uncodified constitution, and its institutions have operated within an environment of written laws together with customs and precedents. Therefore, it is not surprising that the groundbreaking study on constitutional law in the United Kingdom, written by Albert Venn Dicey, 4 also introduced the very concept of constitutional conventions.
The idea was built upon an earlier observed difference between legal (statutory) and non-legal (informal) rules. 5 It is noteworthy that early scholars gave predominantly positive impressions of the concept. For instance, John Locke 6 claimed that the discretionary powers of the monarch should be exercised on trust. After a hundred years, Edmund Burke 7 added that “the constituent parts of a state are obliged to hold their public faith with each other.” John Stuart Mill 8 later claimed that the unwritten maxims of the Constitution were “the positive political morality of the country.” Based on these views, Dicey 9 coined the term “constitutional conventions” as he differentiated between laws enforceable by courts and “conventions of the constitutions,” which were not enforced by the courts. Still, he understood both laws and constitutional conventions as positive limits in ruling society.
Dicey’s differentiation of constitutional conventions was not exhaustive, but we lack a universally accepted understanding of the concept even today. 10 Although constitutional conventions were initially discovered in the United Kingdom, they have been later identified even in other countries. Consequently, the concept has been gradually elaborated by scholars and constitutional courts from countries with different traditions of jurisprudence and philosophical schools. This has resulted in a mix of understandings and analytical approaches.
After the United Kingdom, constitutional conventions were first discovered in other Westminster-style democracies, such as Canada or Australia. 11 Interestingly, while some of these Commonwealth states employ uncodified constitutions (e.g., Canada or New Zealand), others codified their constitutions (e.g., Australia or India). Still, constitutional conventions were identified even in the latter, and they proved to play an even more significant role compared to what was seen in the former. 12 The rationale assumes that “the greater the degree of constitutional rigidity, the greater is the need for the benefits of informal adaptation which conventions bring.” 13
Based on this finding, scholars started to discover the importance of constitutional conventions in other Anglo-Saxon states, even outside the Commonwealth region. For instance, Keith E. Whittington 14 focused on the status of constitutional conventions in the United States. Later, the existence of constitutional conventions was described even in non-Anglo-Saxon countries, such as Germany, 15 Hungary, 16 or Slovakia. 17
Importantly, the cases from continental Europe directly open the door to the scrutiny of the Czech Republic. The Czech Republic and Germany are not only neighbours, but the former also adopted the approach of German civil law almost perfectly. 18 Therefore, given there are constitutional conventions in Germany, it would be a surprising fact if none were revealed in the Czech Republic. Moreover, the Czech Republic shares with Hungary and Slovakia not only a similar history but also patterns in its present-day political system. Thus, we have another hint that constitutional conventions exist even in the Czech Republic.
Nonetheless, to reveal specific constitutional conventions in the Czech Republic, a definition is needed. Therefore, although a single shared conceptualisation is missing, I summarise three definitional features that are at least widely accepted:
Constitutional conventions are non-legal rules (which differentiate them from laws). 19
They affect relations between constitutional institutions (which differentiates them from other conventions). 20
They are generally binding rules with a specific reason for existence, and the breaching of these rules leads to criticism and pressure to conform (which differentiates them from habits and customs). 21
Besides these shared definitional features, there are also several disputable ones. To be more specific, experts are not in agreement about the relationship between constitutional conventions and constitutions. While some scholars claim that constitutional conventions can only fill in blank spaces in the constitutional system (praeter constitutionem) or formulate rules of behaviour beyond the constitutional framework (extra constitutionem), other experts argue that constitutional conventions can even contradict constitutions (contra constitutionem). 22
Furthermore, the role of precedent within the origin of constitutional conventions is another object of dispute. The orthodox view employs precedents as a definitional feature since precedents are understood as a source of bindingness. 23 Another approach does not treat precedents as a necessary source of constitutional conventions’ origin since actors follow them, especially based on a public reaction. 24 Last but not least, the third view argues that constitutional conventions arise from basic constitutional principles by reflecting important constitutional values. 25
Finally, there are also substantial differences seen in the enforcement of constitutional conventions. 26 Although Dicey 27 understood non-legal enforcement as a definitional criterion of constitutional conventions, the present understanding has changed significantly. First, courts might recognise only the conventions’ existence or scope. Second, courts might make use of constitutional conventions for the purposes of legal reasoning. Third, courts might seek the enforcement of conventions.
Constitutional Conventions in the Czech Republic
A study focused exclusively on constitutional conventions in the Czech Republic is yet to be written. Nonetheless, the concept is not unknown to Czech scholars. More than a century ago, Czech constitutional expert Bohumil Baxa 28 described constitutional conventions in a positive manner as flexible rules that fill gaps in legislation instead of amendments. Later, Zdeněk Neubauer 29 also did not omit the relevance of constitutional conventions. Importantly, the early (positive) mentions of constitutional conventions in Czechoslovak politics were influenced by Anglo-Saxon literature. 30
Until today, several other scholars have worked with the term constitutional conventions. 31 Nevertheless, the mentions are predominantly scarce and superficial. Although at least some of the texts systematically deal with constitutional conventions, they focus mainly on examples from Commonwealth countries relevant to the Czech reality. 32 Furthermore, the texts often use terms such as “constitutional conventions,” “political conventions,” and “parliamentary conventions” interchangeably. 33 Interestingly, these experts are all constitutional lawyers—political scientists usually do not employ the concept at all.
Thus, it should not be surprising that the definition remains unclear, and a list of specific constitutional conventions in the country is missing. Nonetheless, the effects of informal institutions in the Czech Republic are not unknown. Recent scholarship has focused especially on the head of state that enjoys more political influence than the Constitution expects. 34 The experts suggest that this is caused by the traditionally high authority of the president, eminent individuals holding the office in the past, and the presidents’ will to interpret their competences extensively, which has often been passively tolerated by other political actors. 35 Lately, such conditions were intensified by the popular vote of the president enacted in 2012 and the performance of the first directly elected head of state Miloš Zeman. As a result, the Czech president enjoys large moral and political powers despite a relatively weaker executive position.
Such reality contributed to the debate on whether the Czech political system remains a parliamentary regime or whether it has turned into a semi-presidential one. While CEE political scientists stick to the former classification, English-language scholars often suggest the latter. 36 Still, there are even some Czech experts who admit at least the tendency of movement towards a semi-presidential regime. 37 Despite that, comparative analysis of CEE countries points out that the Czech Republic remains a parliamentary regime. 38 Nonetheless, the strong informal powers especially of the Czech president and related debates on a potential semi-presidentialism make the Czech Republic a highly interesting case study for the existence and roles of constitutional conventions.
Besides the academic literature, the Czech Constitutional Court has referred to constitutional conventions several times. In 1997, the court dealt with the technical issue of counting the days reserved for the presidential veto, and it argued that “basic legal principles and conventions are the source of law in general, including the constitutional law, even in a system of written law.” 39 In 2001, the court addressed the issue of appointing the vice-governor of the Czech National Bank (ČNB). The court claimed that constitutional conventions had “a great importance” as they “fill in a space among a terse expression of constitutional principles.” 40 Thus, although the Constitutional Court openly relied on the concept of constitutional conventions in the rulings, it has never enforced them.
Last but not least, it is beneficial to look also at the public debate on the issue. Figure 1 depicts mentions of the term “constitutional convention” in the four most-read quality press titles in the country (Hospodářské noviny, Lidové noviny, MF DNES, and Právo) since the state’s independence in 1993. Overall, the total frequency was 501 articles mentioning constitutional conventions during a period of twenty-nine years (17.3 articles a year on average). The low frequency shows an inadequate level of public debate on the issue. Besides this, Figure 1 also delineates the speeches at plenary meetings in the Chamber of Deputies that included the term. Nevertheless, the sum of forty-one speeches demonstrates even more lack of interest in the issue.
Monthly frequency of the term “constitutional convention”
The detailed inspection of the public debates shows substantial differences across time. The media deal with constitutional conventions almost solely at times of political crises. To be more specific, in 2006, debates arose after the legislative election had resulted in a hung parliament with a debate on who to name as prime minister. In 2013, President Václav Klaus announced a wide amnesty that started a debate on a convention of countersigning this right.
Still, the most vivid debates on constitutional conventions took place during the first year of Miloš Zeman’s presidency. He clashed with the then Minister of Foreign Affairs, Karel Schwarzenberg, in the case of naming ambassadors in spring 2013. Furthermore, Zeman appointed the previously mentioned caretaker cabinet of Jiří Rusnok in summer 2013 in defiance of the majority in the Chamber of Deputies. Next, Zeman questioned the power of Prime Minister Bohuslav Sobotka in spring 2017 to resign together with the whole cabinet as the president argued that there was the possibility of simply replacing only Sobotka. After the 2017 legislative election, the presidential constitutional conventions were discussed again in the matter of forming a new cabinet. The same applied to the general debate on presidential powers after Zeman’s second inauguration in March 2018. Finally, Zeman questioned the right of Prime Minister Andrej Babiš to remove a minister from office in summer 2019, and the nomination of a potential new minister, Michal Šmarda, came to nothing.
Overall, the scrutiny of the public debate reveals a picture we are already familiar with from the analysis of academic texts as mentions of constitutional conventions are rather occasional. On one hand, that sends an unfortunate message about a society that is usually indifferent to unwritten rules of behaviour. On the other hand, at least in times of crisis, public debate proves an awareness not only of the existence of constitutional conventions but also of their importance to the proper operation of the institutional system.
Specific Constitutional Conventions
Scholars, politicians, and journalists mention quite a lot of candidates when it comes to constitutional conventions. Nonetheless, not all experts agree as there is no universally shared conceptualisation. Thus, based on the three definitional criteria delineated above, I identify eight established constitutional conventions in the Czech Republic.
The President Respects the Parliamentary Majority
In the Czech Republic, the president is the key actor after the election as he or she appoints a new prime minister. According to the Constitution, the president is free to select anyone as the cabinet’s leader, although it should not be an arbitrary selection. 42 To explain this, the new cabinet, appointed on the basis of the prime minister’s proposal, needs to ask the Chamber of Deputies for a vote of confidence within thirty days of its appointment. If the cabinet is not accepted, the president has a second attempt to appoint a prime minister. A potential third attempt belongs to the president of the Chamber of Deputies. Therefore, the president should respect the parliamentary majority if he or she wants to raise the chances of the prime minister winning the deputies’ confidence.
Generally, there is a constitutional convention that the president appoints the leader of the parliamentary majority as the new prime minister. The convention was established after the very first free legislative election held in former Czechoslovakia in 1990. However, the convention manifested clearly only after the 1992 legislative election when a government change took place for the first time.
Although the prime ministers had to be content with minority rule in 1996 and 1998, they still received the confidence of the parliamentary majority. In 2002, the president named the prime minister, who enjoyed the majority. Then, the rule was strengthened in 2004 and 2005 when the ruling Social Democrats changed their prime minister twice. In both cases, President Václav Klaus and other political actors respected the right of the Social Democrats to form a cabinet as the largest party in the chamber with a declared majority.
The convention proved to be crucial after the 2006 legislative election, which resulted in a hung parliament. Both the left-wing and right-wing camps secured one hundred seats in the chamber and an equal chance of forming a cabinet. Thus, President Václav Klaus asked Mirek Topolánek, leader of the election winner Civic Democratic Party (ODS), to negotiate a new government. Moreover, although Topolánek failed to win confidence in his first cabinet, the president asked him to make a second attempt, which was later successful as Topolánek secured his parliamentary majority thanks to two turncoats.
In 2009, the then cabinet had to resign after losing a vote of confidence in the chamber. Topolánek expected to be given another attempt to form a cabinet as he was still the leader of the largest parliamentary party. However, Václav Klaus appointed a caretaker cabinet instead since the vote had confirmed that ODS lost its parliamentary majority. Finally, the constitutional convention was specified in a way that the president did not necessarily solely respect the gravitas of the winning party, but also gave weight to the parliamentary majority.
The specification proved to be crucial after the 2010 legislative election. Although the Social Democrats won, their chances of forming a majority coalition cabinet were low. Thus, the Social Democratic leaders themselves made an appeal to the president that a cabinet should be built by a party leader with the highest chance of securing the majority. Subsequently, President Václav Klaus asked Petr Nečas, leader of the second-placed party ODS, to form a right-wing coalition cabinet, which was accepted by all the parties involved.
The example of the 2010 election serves as a demonstration of how beneficial it is that the convention takes the form of a non-legal rule. If there had been a written rule in the Constitution that the president had to appoint the leader of the election-winning political party as prime minister, there would have been a wasteful period in which the Social Democrats conducted fruitless negotiations. 43 In contrast, as the convention is unwritten, the reaction could have been highly flexible as it changed from respect for the election winner to respect for the parliamentary majority.
Nečas’ cabinet fell in 2013, and although the existing coalition published 101 signatures declaring its majority in the chamber, President Miloš Zeman appointed a caretaker cabinet under Jiří Rusnok. The reaction of academics, politicians, and media was deprecatory. The press wrote about “Zemanocracy” as the president declared war not only on the coalition but also on the whole parliament. 44 The president replied that the term “constitutional convention” was “absolutely idiotic because if they were truly constitutional conventions, they would be somehow embodied in the Constitution.” 45
Political scientists and constitutional lawyers agreed that the president’s understanding of constitutional conventions was inconsistent with the perception in Western democracies. 46 Scholars called the caretaker government a “presidential cabinet” 47 on the way to semi-presidentialism. 48 Overall, the episode of the summer of 2013 produced a scenario in which a breach of the convention triggered a massive wave of criticism.
Since then, the convention has been respected. Even President Zeman himself has repeatedly declared that he would appoint the winner of a legislative election as a prime minister. Nonetheless, prior to the 2021 election, he slightly altered this promise to appoint the leader of the winning party (!) as Andrej Babiš’s ANO (Zeman’s ally) was challenged by two electoral coalitions. However, President Zeman later appointed Petr Fiala, the leader of the winning coalition (not the party), who became the prime minister after Andrej Babiš refused to form a cabinet due to his lack of a parliamentary majority.
To summarise, the rule of respecting the parliamentary majority when forming a new cabinet is a constitutional convention. Most importantly, it meets all three definitional criteria as (1) it is a non-legal rule, (2) it governs relations between the constitutional institutions of the president, government, and parliament, and (3) a gratuitous breach of it led to criticism in the past.
The President Entrusts a Formateur after a Legislative Election
The practice of entrusting a formateur with forming a new cabinet after the election has often been mentioned as a constitutional convention. 49 The Constitution says in Article 68 that “The president of the Republic shall appoint the prime minister and, on the basis of the prime minister’s proposal, the other members of the government [. . .].” If the cabinet does not receive a vote of confidence from the Chamber of Deputies within thirty days of its appointment, the president has a second attempt to appoint the prime minister, and the third attempt belongs to the president of the chamber. Therefore, the president often employs the institution of a formateur to pursue his or her two attempts to appoint the prime minister.
The constitutional convention was established after the very first free legislative election in Czechoslovakia in 1990. However, the application was clearer after the 1992 legislative election, when the political representation changed for the first time. To be more specific, President Václav Havel entrusted Jan Stráský with forming the Czechoslovak cabinet a day before he appointed him as the prime minister.
Importantly, the evidence shows that the convention does not take place during legislative terms and in the case of a continuing prime minister. 50 Furthermore, all three prime ministers of technocratic cabinets (Josef Tošovský, 51 Jan Fischer, and Jiří Rusnok) were appointed without prior naming as formateurs. Therefore, President Václav Havel employed the practice after the 1998 and 2002 legislative elections. Importantly, the constitutional convention was respected even by Havel’s successors. President Václav Klaus made use of the institution of a formateur after the legislative elections in 2006 and 2010. Similarly, President Miloš Zeman also named a formateur after the 2013, 2017, and 2021 legislative elections. On average, formateurs were entrusted for thirty-six days before they were appointed as prime ministers.
Interestingly, in 2021, the practice was used even when a coalition backed by the parliamentary majority had already been formed. Back then, President Zeman was unable to name a formateur for a long time due to his hospitalisation. Thus, he named Petr Fiala a formateur, although the ruling coalition had already been established. Although the president would not have been criticised for not utilising the practice under such circumstances, he did utilise it, which demonstrates the tradition of the convention.
To summarise, (1) the procedure is a non-legal rule (2) governing relations between the president and the upcoming prime minister. Moreover, (3) there is a specific reason for its existence as the president does not waste his or her precious right to appoint a prime minister. Nevertheless, it is necessary to keep in mind that the convention is strictly employed only after the legislative election as there has been no public criticism of not employing the institution at different stages of legislative terms.
Two Prime Ministers Existing at the Same Time
Cabinet formation in the Czech Republic is a three-step process. First, the sitting cabinet resigns, and the president entrusts the leaving ministers with running their departments until the new government takes office. Second, the president appoints a new prime minister, who then composes a new cabinet. Third, the new cabinet is appointed as a whole, and the members of the previous cabinet finally leave the office. Nonetheless, between the appointment of the new prime minister and the appointment of the new cabinet, the country has two prime ministers. However, from the perspective of legal practice, the previous prime minister still enjoys all the powers, and the incoming prime minister “only” forms the cabinet and proposes new cabinet members.
The Constitution does not specify the process of the alternation besides the resignation of the leaving cabinet and the appointment of the new one. Nonetheless, the precedents have almost always followed the course of having two prime ministers simultaneously. The convention was established after the splitting of Czechoslovakia into two sovereign states—until then, the alternation of prime ministers took place in a single day. To be more specific, the convention started in 1997 when the first change of prime minister in the Czech Republic occurred.
The period of having two prime ministers simultaneously has usually lasted for a week or two. In 2002, the double prime ministership lasted for only four days, the shortest recorded time. In contrast, in 2009, the Czech Republic had two prime ministers for thirty days, which Jan Fischer used to compose his cabinet.
There have been two instances when the convention was not followed. In 2004 and 2005, the change of the prime minister implemented by the Social Democrats involved prime ministers drawn from the very same coalition cabinet, which made the two situations exceptional. Importantly, in both cases, it is understandable that the breach of the convention did not lead to pressures to conform to the rule. Moreover, the two new Social Democratic prime ministers served as members of leaving cabinets. Apart from this, the convention was always followed at the time of the actual political alternation.
The convention has already been debated in the past. 52 Importantly, constitutional experts have been highly critical of it. 53 Furthermore, some academics even called the convention legally unacceptable. 54 Still, the convention took root, and today, it goes unquestioned by all the relevant political actors.
Overall, the constitutional convention meets all three definitional criteria; specifically, (1) it is a non-legal rule as it is not written in the Constitution, and some experts even say that it contradicts the Constitution; (2) it governs relations between constitutional institutions, which are the offices of the president and the two prime ministers in this case; and (3) there is no example of breaching the convention at the time of the actual alternation as it supplements the undescribed procedure of prime minister change.
New Cabinet Asks for MPs’ Confidence Based on a Statement of Policy
The Czech Republic is a parliamentary regime that is based on the responsibility of the cabinet to the lower parliamentary chamber. From the perspective of the newly created cabinet, this characteristic is embodied in Article 68 of the Constitution, stating that “within 30 days of its appointment, the government shall go before the Chamber of Deputies to ask for a vote of confidence.” Interestingly, the Constitution does not specify the process of asking for confidence in more detail. Still, one step has become an essential part of the procedure. After the cabinet is appointed, it prepares a policy statement, including the policy priorities of the new government. The statement is not only published but also sent to all the MPs before the vote of confidence takes place. Therefore, the vote is based not only on a plenary debate but also on the written document.
This procedure is rooted in more than a one-hundred-year-old tradition that the prime minister starts a plenary session on a confidence vote with a speech on the policy priorities of his or her cabinet. The practice was established as early as 1918 and survived until the 1990s, regardless of several regime changes. Nonetheless, in 1998, although incoming Prime Minister Miloš Zeman recognised the existing procedure, he started a new practice:
The government considers it more sensible to send the programme statement to deputies about ten days in advance, because we believe that it is a sacred right for every MP to have any document in advance so that they can study it and possibly consult on this document with experts.
Consequently, Zeman also breached the tradition of reading the statement as MPs had had a chance to study the written document.
Since then, policy statements have been written and sent to the legislators by all cabinets of the Czech Republic. To be more specific, this includes both majority and minority cabinets as well as coalition and single-party governments. Moreover, the technocratic cabinets of Jan Fischer (2009) and Jiří Rusnok (2013) also delivered their policy statements. Furthermore, the procedure was respected not only by the cabinets appointed after the legislative elections but also by the reconstructed cabinets.
Regarding the format, the policy statements of the cabinets before 2010 were approximately ten thousand words in length. Since then, the length has increased to approximately fifteen thousand words. However, the policy statements of all the technocratic cabinets were notable exceptions, with the length running only approximately three thousand words.
Usually, the policy statement was sent less than a week before the vote on confidence. Then, at the plenary session, the prime minister usually addressed MPs with a speech on the main goals of their cabinet. Only a few prime ministers have read out the whole policy statement (Tošovský, Špidla, and Rusnok).
To summarise, a cabinet asking for the confidence of the Chamber of Deputies based on a policy statement can be classified as a constitutional convention. To explain this, (1) it is a non-legal rule, and (2) it governs the relations between the legislators and the cabinet. Last but also importantly, (3) the existence of the policy statement gives MPs the chance to consider the request for confidence; the convention has never been breached, and such a breach would most likely lead to massive public criticism.
Cabinet Ratifies International Treaties Instead of the President
Article 63 of the Constitution says that the president negotiates and ratifies international treaties. These acts require the countersignature of the prime minister or a designated member of the government, which creates a duality of the cabinet and the president within executive powers. 55 To be more specific, while the president represents the state externally, the government is responsible for foreign policy.
More importantly, the mentioned article also states that the president “may delegate the negotiation of international treaties to the government or, with its consent, to individual members thereof.” In April 1993, soon after the newly established independence of the country, President Václav Havel 56 delegated the negotiation of treaties that did not require the assent of parliament to the government. 57 However, Havel also delegated the ratification of such treaties to the cabinet although the ratification is not mentioned as being delegable by the Constitution. Nevertheless, the government started to negotiate and ratify international treaties that did not require parliamentary assent, although the process contradicted the Constitution. 58
Although Havel’s decision was issued without any temporal limitation, it has remained open to a change or cancellation based on a new presidential decision. 59 However, that has not happened yet, and the delegation has become a solid part of the relationship between the president and the government. Interestingly, Havel’s initial decision was countersigned by the then Prime Minister Václav Klaus. The fact that the latter replaced the former in the president’s office might have contributed to the durability of the decision.
Importantly, the practice of negotiating and ratifying international treaties even goes beyond delegation. The explanation for this is that the negotiation of such treaties is naturally entrusted to the government due to a lack of capacity in the presidential office. In practice, this is the case even if the treaty requires the assent of the Czech parliament and, thus, is not an object of the delegation. 60 However, the essential finding is that the president has not yet breached the delegation of negotiating and ratifying treaties that do not require parliamentary assent.
Overall, the delegation is a constitutional convention as (1) it is a non-legal rule that even contradicts the Constitution. Besides this, (2) it governs relations between the president and the cabinet. Last but not least, (3) the convention has a specific reason for existence as the president does not enjoy enough capacity to delegate and ratify treaties, and there are political reasons for making the government responsible for foreign policy. Finally, different presidents and cabinets have maintained respect for the delegation.
Appointment of a (Vice-)Governor of the ČNB
The constitutional convention on the appointment of a (vice-)governor of the ČNB is based on the decision of the Constitutional Court. To be more specific, in November 2000, President Václav Havel appointed Zdeněk Tůma a governor of ČNB and Luděk Niedermayer a vice-governor. 61 Nonetheless, Prime Minister Miloš Zeman criticised the appointment (among other politicians) as he did not agree with Tůma’s monetary policies. As a result, the cabinet started a competence dispute based on an argument that the presidential appointment should have been countersigned by the prime minister, which was not the case.
To explain this, Article 62 of the Constitution says that the president “shall appoint members of the Banking Council of the Czech National Bank.” Importantly, since the countersigned powers of the president are summarised in Article 63, the former authority does not require a countersignature of a member of the cabinet. Still, the cabinet cited Article 63, paras 2–3 of the Constitution saying that the president “also possesses powers which are not explicitly enumerated in constitutional acts if a statute so provides,” and such decisions “require the countersignature of the prime minister or a member of the government designated by him.” In different words, the cabinet argued that the president was not required to ask for a countersignature in the case of appointing members of the banking council—nonetheless, he needed so to name (vice-)governor as these positions differ from members who are listed among exclusive powers of the president.
The Constitutional Court decided in June 2001. 62 The cabinet’s complaint was rejected as the government tried to restrict the president’s constitutional competence based on ordinary law, which was not justifiable. Interestingly, the judges also said that the head of state had appointed (vice-)governors of ČNB without a countersignature since 1993, which created a constitutional practice used for a long time, so the procedure “must be understood as a constitutional convention that cannot be ignored when interpreting the Constitution.” 63
To summarise, there is a constitutional convention saying that the president appoints (vice-)governor of ČNB without a countersignature of a member of the cabinet. Importantly, (1) the practice is a non-legal rule- and (2) it affects the relationship between the president and the cabinet. Last but not least, (3) the rule is binding since it was confirmed by the Constitutional Court, and it enjoys a specific reason for existence related to the constitutional exclusivity of the president in the case of appointing leading figures of ČNB.
The Law Comes into Effect Despite the Missing Signature of the President
Article 50 of the Constitution says that the president has the right to return adopted bills of law to the Chamber of Deputies with stated reasons within a period of fifteen days. If the chamber reaffirms its approval of the bill with an absolute majority of all deputies, the act shall be promulgated. Otherwise, the act shall be deemed not adopted.
Importantly, Article 51 of the Constitution states that statutes shall be signed by the president of the Chamber of Deputies, the president of the republic, and the prime minister. Therefore, the president should also sign the bill that he or she previously vetoed. 64 Nonetheless, not only practice since 1994 but also the Rules of Procedure of the Chamber of Deputies (§ 107, Article 4) in 1995 established a convention that the president does not sign a vetoed bill. Therefore, there is a justifiable interpretation as the convention contradicts the constitutional text. 65
Moreover, the convention has an even more interesting dimension to scrutinise. In 2004, President Václav Klaus refused to sign the bill related to former Czechoslovak President Edvard Beneš. 66 At the same time, Klaus did not utilise his right to the presidential veto. That allowed the bill to become law.
Similarly, in 2020, President Miloš Zeman declined to either sign or veto the bill on tax adjustments. Although the bill had come into effect, the procedure that was followed beforehand was later judged by the Constitutional Court, based on a proposal from a group of senators to abolish the law. On one hand, the judges admitted that the procedure was not in agreement with the Constitution since it was the duty of the president to either sign the bill or veto it. On the other hand, the judges point out that “the mere failure to attach the president’s signature to the adopted law does not reach a sufficient intensity to affect the (proper) termination of the legislative process.” 67 Thus, the Constitutional Court refused to abolish the law.
In other words, the first practice was established as early as the 1990s, and it has remained in operation even up until today. The second practice appeared in 2004 as an emerging constitutional convention. Nonetheless, as several other examples of such a procedure have been utilised since then and the ruling of the Constitutional Court still applies today, we can call the procedure an established constitutional convention.
To be more specific, (1) both practices are non-legal rules as they contradict the Constitution. Also, the convention (2) governs relations between the president and other institutions by giving the head of state a new tool to strongly express a political position. Last but not least, (3) there is a reason for the convention’s existence as the president does not sign a bill he or she disagrees with.
The Supreme Court has a Single Vice-Chairperson
In 2006, President Václav Klaus named Jaroslav Bureš as the second vice-chairperson of the Supreme Court. However, the court’s chairperson Iva Brožová argued that the president was not respecting the law because the court should have only a single vice-president. More importantly, Brožová claimed that the law, as followed for thirteen years, created a constitutional convention with the specific purpose that the president cannot seize control of the court in naming their own additional vice-president. The Constitutional Court later cancelled Bureš’s appointment, adding that the president should name a vice-chairperson only with the consent of the Supreme Court’s chairperson. 68
However, the potential existence of the constitutional convention remained an unanswered question. On one hand, the changed act on courts in 2008 enabled the appointment of more vice-chairpersons of the Supreme Court, which removed the discrepancy with the Constitution. On the other hand, the Supreme Court has never exceeded a single vice-chairperson as the presidents have not stopped respecting the initial number of only one chairperson. Therefore, (1) there is a non-legal rule that (2) keeps the boundary between the president and the autonomy of the Supreme Court, (3) which is also the reason for the constitutional convention’s existence.
Grey Zone of Constitutional Conventions
Besides the eight established constitutional conventions, there are some procedures that are often identified or at least discussed as constitutional conventions by experts, politicians, or media. Nonetheless, they do not meet all three criteria for constitutional conventions as described above, or they come from an interpretation of the Constitution, which makes them an inherent part of the written constitutional order. As some of the practices and interpretations may be mistaken for constitutional conventions, it is beneficial to delineate at least some of them in more detail.
The Fall of a Cabinet in Line with the Prime Minister’s Resignation
Until recently, the question of the fall of a cabinet seemed straightforward. The general understanding was that the prime minister’s resignation translated into the demise of the whole cabinet. However, in 2017, President Miloš Zeman offered a different interpretation of the prime minister’s resignation. When Prime Minister Bohuslav Sobotka expressed his intention to resign, the president declared that he would only appoint a new prime minister while keeping the cabinet in the office. Therefore, Zeman argued that the fall of a cabinet as a result of the prime minister’s resignation was a constitutional convention that might be subject to change.
The Constitution states the following in Article 73:
The Prime Minister submits his resignation to the President of the Republic. Other members of the government submit their resignations to the president of the Republic through the Prime Minister.” Besides this, Article 62 of the Constitution states that the president “appoints and recalls the Prime Minister and other members of the government and accepts their resignations, recalls the government and accepts its resignation.
Nevertheless, constitutional lawyer Jan Kysela concedes that the Constitution is not explicit: “It does not say that the resignation of the prime minister equals a cabinet’s resignation. There are indeterminate statements, and we have to infer the meaning of the text from them.” 69 Thus, Jan Kysela presents two reasons why the prime minister’s resignation is directly linked with the cabinet’s fall. 70 First, the role of the prime minister in the Constitution is designed as a focus of the cabinet. Therefore, the cabinet’s destiny is interconnected with the lot of the prime minister. Second, until 2017, the practice was that the prime minister’s abdication was treated as meaning the fall of the cabinet. Another constitutional lawyer, Marek Antoš, asserts that “I would not describe it as a constitutional convention, it rather emerges from a systematic interpretation of the Constitution.” 71
Therefore, it is not possible to describe the rule as a constitutional convention since it does not meet the first definitional attribute as presented above. To be more specific, although the principle is not explicitly written in the Constitution, it is not a non-legal rule either. It is a solid part of the Constitution as it arises from the direct systematic interpretation of it. A single attempt made by a political actor to change this, albeit an attempt by the president, cannot make an integral part of the Constitution a convention. 72
The President Appoints Ministers and Accepts their Resignation Unconditionally
Similar to the previously mentioned rule, there is a constitutional interpretation that the president appoints ministers and accepts their resignation without further conditions or any unnecessary delay. In fact, the core of this rule is a solid part of the Constitution as Article 62 states that the president “appoints and recalls the Prime Minister and other members of the government and accepts their resignations, recalls the government and accepts its resignation.”
Nonetheless, the process has been the subject of many discussions in the past. For example, President Václav Havel hesitated to appoint Miroslav Grégr as the deputy prime minister because Havel did not agree with Grégr’s views on the economy. Similarly, President Miloš Zeman refused to appoint Miloslav Poche and Michal Šmarda as ministers because of political reasons, and the then cabinet stepped aside in both cases.
Constitutional lawyers are not in agreement about the rightfulness of such practice. 73 On one hand, there are several experts who argue that it is the president’s right to refuse to appoint a candidate. 74 On the other hand, the majority of scholars claim that the president is legally obliged by a proposal for an appointment or that he or she might refuse to appoint a minister only if the appointment is illegal or the candidate refuses to guarantee that he or she will abide by the Constitution. 75 For instance, this was the case in 2005 when President Václav Klaus declined to name David Rath as health minister because the candidate was the president of the Czech Medical Chamber. 76 President Klaus based his decision on Article 70 of the Constitution, which says that “members of the government may not engage in activities which are by their nature incompatible with the performance of a minister’s duties.”
Importantly, in 2009, the Constitutional Court ruled that the president had to ratify the Lisbon Treaty “without any unnecessary delay.” 77 The formulation became an integral part of the constitutional interpretation applied even to other processes, such as the appointment and recall of ministers. Thus, overall, the rule is not a constitutional convention as it does not meet the first condition of being non-legal (similarly to the previously mentioned practice in the fall of a cabinet). On the contrary, the rule is in some aspects written in the Constitution, while other attributes work on direct systematic interpretation and the Constitutional Court’s ruling.
Parliamentary Conventions
There are several conventions affecting the operation of both parliamentary chambers. 78 For instance, Kysela 79 points out that plenary sessions in the Chamber of Deputies are suspended based on a request from chairpersons of parliamentary party groups. Importantly, there is no such provision for this in the rules of procedure. Besides this, if the Senate rejects a bill, the upper chamber sends a delegation to the lower chamber to convey the senators’ decision during a plenary session.
Such parliamentary conventions cannot, however, be identified as constitutional conventions. Although they are non-legal rules that exist for a reason, they do not govern relationships between institutions. Rather, parliamentary conventions affect “only” the inner workings of both parliamentary chambers.
Conclusion
This article is the first paper that systematically deals with constitutional conventions in the Czech Republic. The identification of eight established constitutional conventions proves that this phenomenon exists even in this relatively young, post-communist democracy. Furthermore, the conventions play an essential role as they regulate crucial political processes.
Importantly, constitutional conventions in the Czech Republic face several challenges that are already familiar to democracies with long histories. To be more specific, a universally shared definition and conceptualisation are missing. Consequently, scholars are not in agreement when it comes to the identification of specific constitutional conventions.
The concept is under additional pressure in the relatively young post-communist democracy of the Czech Republic. First, academic, legal, and public debates on constitutional conventions are predominantly scarce and superficial. In other words, constitutional conventions are discussed almost solely at times of crisis, after which the debates usually fall silent again. Second, such instances of pressure are not rare but quite frequent. Some influential political actors, such as President Miloš Zeman, have publicly denounced the very idea of constitutional conventions, which diminishes their role. As a result, although many other politicians and scholars defend these informal institutions, practice shows insufficient political respect for unwritten rules.
To some extent, this might be explained by the relative immaturity of Czech democracy. Since only a few (if any) precedents exist, it opens leeway for political actors to push through their instrumental understanding of specific procedures. Furthermore, fundamental institutional changes, such as the enacted popular presidential election, affect laboriously set principles of the regime in the process. Last but not least, historical discontinuity undoubtedly contributes to the complicated position of constitutional conventions in this post-communist country. To be more specific, conventions usually do not survive across substantially different regimes, and even achieving continuity across democratic phases is difficult.
Generally, the case study of constitutional conventions in the Czech Republic demonstrates that such informal institutions are as fragile (or strong) as the political actors allow. Importantly, the region of post-communist countries in CEE is an interesting laboratory in which the creation of constitutional conventions can be observed together with the constant pressures they face. Given this opportunity, more systematic case studies should be put in place as they are needed to deliver noteworthy findings. The conclusions would be valuable even to long-established democracies that nowadays often fear the erosion of their own regimes.
Footnotes
Acknowledgements
I am grateful to Miloš Brunclík, Marek Antoš, Attila Vincze, Miluše Kindlová, and Michal Kubát for their comments on an early version of this manuscript. I also thank the anonymous reviewer for the careful reading of my manuscript and for many insightful comments and suggestions, which significantly helped improve the text.
Funding
The manuscript was elaborated within the research project titled “Constitutional Conventions in Central Europe” (reg. no. 20-05069S) supported by the Czech Science Foundation.
