Power Beyond Constitutions: Presidential Constitutional Conventions in Central Europe (Palgrave Studies in Presidential Politics) 3031342437, 9783031342431

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PALGRAVE STUDIES IN PRESIDENTIAL POLITICS SERIES EDITOR: GIANLUCA PASSARELLI

Power Beyond Constitutions Presidential Constitutional Conventions in Central Europe

Miloš Brunclík · Michal Kubát Attila Vincze · Miluše Kindlová Marek Antoš · Filip Horák Lukáš Hájek

Palgrave Studies in Presidential Politics

Series Editor Gianluca Passarelli, Sapienza University of Rome, Rome, Italy

Palgrave Studies in Presidential Politics publishes books on all aspects of presidential politics. We welcome proposals for monographs, edited volumes and Pivots on topics such as: • • • • • •

Contemporary presidencies and presidential powers Presidential elections and presidential party politics Presidential relations with the legislature The media and presidential communication The administrative presidency and presidential advisers The history of presidential offices and presidential biographies

The series focuses on presidents throughout the world, including both directly elected and indirectly elected presidents, both single-country and comparative studies of presidential politics. It also includes volumes on conceptual or theoretical aspects, such as how to measure presidential power. Moreover, the series considers book projects on the reform of presidential politics, e.g. the reform of presidential elections. For further information on the series and to submit a proposal for consideration, please get in touch with: • Commissioning Editor Ambra Finotello ambra.finotello@palgrave. com • Series Editor Gianluca Passarelli [email protected]

Miloš Brunclík · Michal Kubát · Attila Vincze · Miluše Kindlová · Marek Antoš · Filip Horák · Lukáš Hájek

Power Beyond Constitutions Presidential Constitutional Conventions in Central Europe

Miloš Brunclík Faculty of Social Sciences Charles University Prague, Czech Republic

Michal Kubát Faculty of Social Sciences Charles University Prague, Czech Republic

Attila Vincze Faculty of Law Masaryk University Brno, Czech Republic

Miluše Kindlová Faculty of Law Charles University Prague, Czech Republic

Marek Antoš Faculty of Law Charles University Prague, Czech Republic

Filip Horák Faculty of Law Charles University Prague, Czech Republic

Lukáš Hájek Faculty of Social Sciences Charles University Prague, Czech Republic Palgrave Studies in Presidential Politics ISBN 978-3-031-34243-1 ISBN 978-3-031-34244-8 (eBook) https://doi.org/10.1007/978-3-031-34244-8 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Mateusz Wlodarczyk/NurPhoto/Getty Images This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Foreword

The title of this book is quite surprising. Conventions usually make one think of Anglo-Saxon common law jurisdictions, not of Continental civil law systems. They are certainly not associated with Central Europe with its legacy of socialist legal culture and its ongoing cult of hypertextual interpretation and application of normative texts. With respect to constitutional conventions in the context of parliamentary systems such as the states in Central Europe, one tends to think primarily of the political power organs such as parliaments or governments, but not necessarily of more symbolic institutions like the heads of state. Nevertheless, the study by Miloš Brunclík’s team makes sense. This book does away with the cliché that conventions may be a legitimate tool in common law and perhaps in uncodified fields of law in general, but are dysfunctional where there is written law. It proves that court practice and legal science in Central Europe have been cautiously opening up toward sources of law beyond the classical canon of stateenacted formal norms for quite some time. And its focus on the heads of state draws our attention to an institution that despite its lack of true political power plays a crucial role in the functioning of the political systems and is, at the same time, the focal point for a considerable number of more or less new constitutional conventions. The 4 Central European states—Czech Republic, Hungary, Poland, and Slovakia—each provide a case study of its own. Despite some similarities and parallel traits, the peculiarities of the normative situation, the v

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intellectual and academic heritage, as well as the necessities and requirements of the respective political system after the end of the socialist dictatorship have led to highly different and differentiated solutions in tackling the basic problem: that the constitutional text on the head of state is fraught with imported constitutional tradition and is at the same time vague, incomplete, and in some cases even contradictory. Therefore, 4 elaborate case studies reveal the details of the constitutional and political practices around the heads of state and their behaviour that may be classified as a constitutional convention. The most obvious difference in these case studies is the mere number of constitutional conventions in relation to the head of state. The authors identify 4 such conventions in Slovakia, 5 in Poland, 7 in the Czech Republic, and as many as 9 in Hungary. This provides ample empiric material for a more detailed classification. A closer dogmatic look at the existing conventions reveals that in many cases it is the heads of state themselves who establish a convention by precedent. The majority of conventions fill a lacuna in the constitutional text or create behavioural patterns in fields without any regulation, whereas conventions that interpret existing text are rarer, with the exception of Poland, and conventions that abrogate a positive rule are exceptional, save in Hungary where a certain number of conventions reduce the president’s rather broad explicit powers by establishing conventional rules that the president must not make use of these powers. As for the importance of conventions, the book identifies conventions about rather marginal questions and quotes other conventions that touch the core of the constitutional role of the head of state. Some widen the president’s powers, others tend to curtail them or impose new duties, and another group is neutral to the ambit of presidential powers. Quite unsurprisingly, a central field for constitutional conventions is the president’s powers in relation to the creation and dismissal of the government. First, this is a field where a head of state may exercise real political discretion and, in some constellations, even true political power, and, second, the constitutional texts are not very explicit in this respect in all 4 constitutions, thus leaving room and creating the need for extra-constitutional rules. Even if the conventions add an informal, unwritten, so to speak ‘common law element’ to the Continental constitutional systems of the Visegrád countries, the ‘genius loci’ of Central Europe cannot be completely ignored. Constitutional courts play a considerable role in the acknowledgement, formalisation, and acceptance of conventions around

FOREWORD

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the head of state. This is true for the Czech Republic and Slovakia, but not for Hungary and Poland, where an explicit constitutional text on the enumeration of the sources of law formally bars the Constitutional Courts from taking conventions into account. The courts in Brno and Košice, however, adopt quite divergent positions on the theoretical question of constitutional conventions. The Czech Constitutional Court was first quite open toward the idea but then changed its point of view quite fundamentally whereas its Slovak counterpart was quite reluctant from the beginning. Here again, a seemingly similar setting begets divergent solutions. One of the strong points of this book is that it offers detailed case studies that highlight the legal, judicial, political, and cultural background of each country. The authors adopt a combination of the domestic dogmatics of the 4 states and a comparative perspective that takes into account academic discussions as well as political and judicial practice beyond the 4 Visegrád countries, too. As a consequence, their book shows that a theory on constitutional conventions makes sense in Continental systems as well, even in the Central European systems. Therefore, it not only presents an in-depth analysis of the constitutional practices around the heads of state of the Visegrád 4, but it also enriches the general theory on constitutional conventions with new case studies and new insights. Prof. Dr. Dr. h.c. Herbert Küpper Institute for East European Law, Regensburg German-Speaking Andrássy University Budapest Budapest, Hungary

Acknowledgements

We are grateful to Herbert Küpper and Lubomír Kopeˇcek for their careful reading of the first draft of this book. We also thank Marek Káˇcer for his invaluable comments on those parts specifically concerned with the Slovak constitutional systems and conventions. Finally, we also thank Ladislav Orosz for his numerous answers to our questions regarding various details of the Slovak constitution and constitutional practice. Their comments and suggestions have significantly helped us to improve the text. Of course, we take full responsibility for all potential errors in the book. We would like to thank the Czech Science Foundation, which has generously supported our research project entitled ‘Constitutional Conventions in Central Europe’ (reg. no. 20-05069S).

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Contents

1 9

1

Introduction References

2

What Are Presidential Constitutional Conventions? 2.1 Constitutional Conventions in Anglo-Saxon Scholarship 2.2 Constitutional Conventions in German-Speaking Countries 2.3 Constitutional Conventions in the Legal and Constitutional Context of Central European Countries and in Their Scholarship 2.3.1 Czech Republic 2.3.2 Slovakia 2.3.3 Hungary 2.3.4 Poland 2.3.5 Summary 2.4 Presidential Constitutional Conventions: Definition and Classification 2.4.1 Defining Constitutional Conventions 2.4.2 Classification of Constitutional Conventions References

11 12

Presidents in Constitutions 3.1 Presidents of Parliamentary Democracies 3.2 Czech Republic

89 90 91

3

18

24 26 35 45 53 61 62 63 69 73

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CONTENTS

3.2.1 Position of the Czech President 3.2.2 Constitutional Competences 3.2.3 Constitutional Amendments 3.3 Slovakia 3.3.1 Position of the Slovak President 3.3.2 Constitutional Competences 3.3.3 Constitutional Amendments 3.4 Hungary 3.4.1 Position of the Hungarian President 3.4.2 Constitutional Competences 3.4.3 Constitutional Amendments 3.5 Poland 3.5.1 Position of the Polish President 3.5.2 Constitutional Competences 3.5.3 Constitutional Amendments 3.6 Final Remarks References 4

Presidential Constitutional Conventions in Central Europe 4.1 Presidential Constitutional Conventions in the Czech Republic 4.1.1 Relationship with Government 4.1.2 Relationship with the Parliament 4.1.3 Relationship with Judiciary 4.1.4 Classification of Constitutional Conventions 4.1.5 Summary 4.2 Presidential Constitutional Conventions in Slovakia 4.2.1 Relationship with Government 4.2.2 Relationship to the National Council 4.2.3 Relationship with Judiciary 4.2.4 Classification of Constitutional Conventions 4.2.5 Summary 4.3 Presidential Constitutional Conventions in Hungary 4.3.1 Relationships with Government 4.3.2 Relationship to the National Assembly 4.3.3 Relationship to the Judiciary 4.3.4 Classification of Constitutional Conventions 4.3.5 Summary

94 95 99 102 104 106 110 116 118 120 123 124 127 128 132 132 134 145 147 148 168 171 173 179 180 182 199 202 206 212 212 213 220 224 228 231

CONTENTS

5

6

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4.4

Presidential Constitutional Conventions in Poland 4.4.1 Relationship with Government 4.4.2 Relationship with Parliament 4.4.3 Relationship with Judiciary 4.4.4 Other Areas 4.4.5 Classification of Constitutional Conventions 4.4.6 Summary 4.5 Final Remarks References

233 234 240 242 243 244 247 248 252

Constitutional Conventions and Constitutional Courts 5.1 Czech Republic 5.1.1 Opening the Door 5.1.2 Opening the Door Even Wider (but Differently) 5.1.3 Not Entering the Open Door 5.1.4 Supreme Administrative Court Entering the Door Instead? 5.1.5 Summary 5.2 Slovakia 5.2.1 Discovering Constitutional Conventions Step-by-Step 5.2.2 Active Use of Constitutional Conventions in Reasoning 5.2.3 Constitutional Conventions Beyond Appointment Cases? 5.2.4 Summary 5.3 Final Remarks References

267 269 270 274 280

Conclusion References

305 312

Index

283 284 286 287 292 296 298 299 301

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About the Authors

Miloš Brunclík is an Associate Professor of Political Science in the Department of Political Science of the Faculty of Social Sciences of Charles University, Prague. His research is concerned with presidents and cabinets in European parliamentary and semi-presidential regimes, technocratic cabinets, and various themes within Czech politics. He has published a number of articles and book chapters on these topics. Recent examples of these studies include: Constitutional Conventions in Central Europe: Presidents in Government Formation Process. Problems of Post-Communism, 1–13, 2021 (with M. Kubát). Three-Fold Gap: Researching Constitutional Conventions in the Czech Republic. Czech Journal of Political Science, 16(1), 20–36, 2021. Semi-presidentialism, Parliamentarism and Presidents: Presidential Politics in Central Europe. London and New York: Routledge, 2019 (with M. Kubát). How Strong Is the President in Government Formation? A New Classification and the Czech Case. East European Politics & Societies and Cultures, 33(1), 109–134, 2019 (with L. Kopeˇcek). When Are Technocratic Cabinets Formed? Comparative European Politics, 17(5), 759–777, 2019 (with M. Parízek). The Rise of Technocratic Cabinets—What We Know, and What We Should Like to Know. Austrian Journal of Political Science, 44(3), 1–11, 2015.

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Michal Kubát is a Professor of Political Science at the Institute of International Studies of the Faculty of Social Science, Charles University. He has published several monographs in Czech, English, Polish, and German. In his recent research, he focuses on comparative politics (especially democratic and non-democratic regimes), the social science methodology of Giovanni Sartori, and the political systems of Central Europe, especially the Czech Republic and Poland. Few examples of recent publications: The Priest and the State: Clerical Fascism in Slovakia and Theory. Nations and Nationalism, online first, 2020 (with H. Kubátová). Giovanni Sartori: Challenging Political Science. ECPR Press/Rowman & Littlefield, 2019 (co-edited with M. Mejstˇrík). Semi-presidentialism, Parliamentarism and Presidents: Presidential Politics in Central Europe. Routledge, 2019 (with M. Brunclík). Were There ‘Bystanders’ in Topoˇlˇcany? On Concept Formation and the Ladder of Abstraction. Contemporary European History, 27(4), 562–581, 2018 (with H. Kubátová). Undemokratische Regime: Theoretische Verortung und Fallbeispiele. Barbara Budrich, 2015 (with S. Balík).

Attila Vincze is a Senior Lecturer at the Judicial Studies Institute of the Masaryk University of Brno. He studied law in Budapest and Heidelberg and obtained his JD in Budapest in 2003, and an LL.M. in German Law from the Ludwig-Maximilians University of Munich in 2005, where he was also awarded a doctorate in law in 2009. He defended his professorial thesis (Habilitation) at the Vienna University of Economics and Business in 2017. His research focuses on European and comparative public law and constitutional theory. Few examples of recent publications: Hundert Jahre österreichisches Bundes-Verfassungsgesetz. Jan Sramek, 2021 (coedited with A. Balthasar). Talking Past Each Other: On Common Misperceptions in the Rule of Law Debate. In A. Lorenz & L. H. Anders, Illiberal Trends and Anti-EU Politics in East Central Europe (pp. 209–233), Palgrave-Macmillan, 2021. Hungary. In S. Griller, National Constitutions and EU Integration (pp. 433– 459), Hart Publishing, 2021 (with P. Sonnevend & A. Jakab). Die Beziehungen zwischen der Verfassungsgerichtsbarkeit und den Obergerichten in Mitteleuropa. Eine vergleichende Analyse. Jahrbuch des Öffentlichen Rechts der Gegenwart, Neue Folge, 2019 (with H. Küpper & C. Fuchs).

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Verfassungsgerichte und Obergerichte in Mitteleuropa. Peter Lang, 2018 (coedited with H. Küpper). Hungary: Regulatory Bodies in an Illiberal Democracy. In B. Iancu et al., Governance and Constitutionalism: Law, Politics and Institutional Neutrality (pp. 119–133), Routledge, 2018. Unionsrecht und Verwaltungsrecht. 2016 (Baden-Baden: Nomos).

Miluše Kindlová is an Assistant Professor in the Department of Constitutional Law of the Faculty of Law, Charles University, Prague. She studied Law at Charles University (JUDr, Ph.D.) and the University of Oxford (MJur). In 2017–2019, she worked as a clerk to a constitutional judge at the Constitutional Court of the Czech Republic. In her recent research, she has focused on general topics in the theory of state and comparative constitutional law, especially on citizenship studies and human rights. Few examples of recent publications: Instruments and Elements of Particularism in the Context of Constitutional Identity: the Czech Constitutional Court. In K. Kovács, The Jurisprudence of Particularism. National Identity Claims in Central Europe (pp. 105–125), Bloomsbury Publishing, 2023. Conscientious Objection to Compulsory Vaccination? Lessons from the CaseLaw of the European Court of Human Rights and a Test Employed by the Czech Constitutional Court. ICL Journal, 16(4), 447–469, 2022 (with O. Preuss). Sebeomezení Ústavního soudu, státní obˇcanství a bezpeˇcnost státu [Self-Restraint of the Constitutional Court, Citizenship and the Security of the State]. In J. ˇ strážce ústavy nad politikou nebo Ondˇrejková, J. Malíˇr et al., Ústavní soud CR: v politice? [Constitutional Court of the CR: the Guardian of the Constitution Above or In Politics?] (pp. 163–176), Leges, 2020. Ústavní pˇrezkum právní úpravy financování politických stran v kontextu cˇ l. 5 Ústavy a dalších ústavních principu˚ [Constitutional Review of the Legal Regulation of Political Parties Funding in the Context of Art. 5 of the Constitution ˇ and Other Constitutional Principles]. In V. Šimíˇcek, 25 let Ústavy Ceské republiky [25 Years of the Constitution of the Czech Republic] (pp. 137–158), Leges, 2019 (with J. Ondˇrejková). Obyvatelstvo, jednotlivec a stát & Lidská práva a jejich ochrana [Population, Individual and State & Human Rights and Their Protection]. In J. Reschová, M. Kindlová, J. Grinc, O. Preuss, M. Antoš, Státovˇeda. Stát. Jednotlivec. Konstitucionalismus [Theory of State. State. Individual. Constitutionalism] (pp. 78–163), Wolters Kluwer, 2019. Formal and Informal Constitutional Amendment in the Czech Republic. The Lawyer Quarterly, 8(4), 514–527, 2018.

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Marek Antoš is an Associate Professor in the Department of Constitutional Law of the Faculty of Law, Charles University, Prague. He earned his master’s degrees in politics, law (Charles University), and comparative constitutional law (Central European University) as well as his Ph.D. in public law (Charles University). In addition, he also has expertise in Internet governance and Internet media. His research is concerned with a wide range of topics at the intersection of constitutional law and politics, such as elections and electoral law, constitutional systems, socio-economic rights, or fiscal constitutionalism. Few examples of recent publications: Proportionality Means Proportionality: Czech Constitutional Court, 2 February 2021, Pl. ÚS 44/17. European Constitutional Law Review, 17(3), 538–552, 2021 (with F. Horák). Direct Election of the President and Its Constitutional and Political Consequences. Acta Politologica, 8(2), 145–163, 2016 (with J. Wintr & J. Kysela). Czech Constitutional Court: Twists and Turns of Recent Judgments of the Highest Courts in Cases of Parliamentary Immunity. Vienna Journal of Constitutional Law, 11(2), 301–314, 2017 (with J. Kysela). Fiscal Stability Rules in Central European Constitutions. In M. Adams, F. Fabbrini, & P. Larouche, The Constitutionalization of European Budgetary Constraints (pp. 205–222), Hart Publishing, 2014. Souˇcasné ústavní soudnictví: nepravý dˇedic Hanse Kelsena? [Contemporary Constitutional Justice: False Heir of Hans Kelsen?]. Jurisprudence, 2017(2), 36–41, 2017. Pˇretahovaná o složení vlády: cˇ eské zkušenosti v mezinárodním srovnání [Tugof-war over Composition of Government: Czech Experience in International ˇ [25 years of Czech ConstituComparison]. In V. Šimíˇcek, 25 let Ústavy CR tion] (pp. 71–88), Leges, 2019.

Filip Horák is an Assistant Professor of Constitutional Law in the Department of Constitutional Law of the Faculty of Law, Charles University, Prague. He studied constitutional law (Ph.D.) and political science (Mgr.) at Charles University. In his research, he focuses on values and axioms in legal argumentation, the interdisciplinary constructs such as legal consciousness and the rule of law and (recently also) the electoral law and electoral systems.

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Few examples of recent publications: Horák, F. (2022). Human Dignity in Legal Argumentation: A Functional Perspective. European Constitutional Law Review, 18(2), 237–263. https:/ /doi.org/10.1017/S1574019622000141. Horák, F., Lacko, D. (2022). Triangulation of Theoretical and Empirical Conceptualizations Related to the Rule of Law. Hague Journal on the Rule of Law. https://doi.org/10.1007/s40803-022-00181-x. Antoš, M., Horák, F. (2021). Proportionality Means Proportionality: Czech Constitutional Court, 2 February 2021, Pl. ÚS 44/17. European Constitutional Law Review, 17(3), 538–552. https://doi.org/10.1017/S15740196 21000328. Horák, F., Lacko, D., Klocek, A. (2021). Legal consciousness: A systematic review of its conceptualization and measurement methods. Anuario de Psicología Jurídica, 31(1), 9–34. https://doi.org/10.5093/apj2021a2.

Lukáš Hájek is an Assistant Professor of Political Science in the Department of Political Science of the Faculty of Social Sciences, Charles University, Prague. In his research, he is interested in party systems, parliamentarism, legislative behaviour, and the politics of the Czech Republic. Few examples of recent publications: Idiotic or Columbo’s Wife? Constitutional Conventions in the Czech Republic. East European Politics and Societies and Cultures (online). Legislative Behaviour of MPs in the Czech Republic in Times of Covid-19 Pandemic. Parliamentary Affairs, 76(2), 401–420, 2021. West Side Story in a Post-Communist Parliament: Effect of Gender on Legislative Behaviour of MPs. Przegl˛ad Politologiczny, 25(2), 21–43, 2020. Dynamic Roll Call Analysis of Parties’ Ideological Positions in the Czech Republic. The Journal of Legislative Studies, 26(1), 133–157, 2020. Voting Dissent of MPs in the Czech Republic. Czech Journal of Political Science, 27(1), 21–44, 2020.

Abbreviations

BLH BVerGE CCR ˇ CNB CRP CSR ˇ CSSD FIDESZ HZDS LSNS MDF ODS

Basic (Fundamental) Law of Hungary Federal Constitutional Court (Bundesverfassungsgericht ), Germany Constitution of the Czech Republic ˇ Czech National Bank (Ceská národní banka) Constitution of the Republic of Poland Constitution of the Slovak Republic ˇ Czech Social Democratic Party (Ceská strana sociálnˇe demokratická) The Alliance of Young Democrats (Fiatal Demokraták Szövetsége), Hungary Movement for a Democratic Slovakia (Hnutie za demokratické Slovensko) ˇ Kotleba—Peoples’ Party Our Slovakia (Kotlebovci—Ludová strana Naše Slovensko) The Hungarian Democratic Forum (Magyar Demokrata Fórum) Civic Democratic Party (Obˇcanská demokratická strana), Czech Republic

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List of Tables

Table 4.1 Table 4.2 Table Table Table Table Table Table Table

4.3 4.4 4.5 4.6 4.7 4.8 4.9

Prime ministers alternation in the Czech Republic Presidential constitutional conventions in the Czech Republic Government formation in Slovakia Presidential constitutional conventions in Slovakia Presidential constitutional conventions in Hungary Prime ministers and parties in Poland Polish presidents in the legislative process Presidential constitutional conventions in Poland Constitutional conventions in the Central European countries

158 178 191 211 232 237 241 246 251

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CHAPTER 1

Introduction

The findings, arguments, and conclusions of the book are based on 4 major pillars. First, the book authors rely on the texts of the constitutions and a couple of laws directly related to the presidents of the Central European countries. Second, the authors come from hitherto scholarly literature on the concept of the constitutional convention. The authors also conducted 46 semi-structured interviews with country experts to learn more about (1) the concept, (2) specific constitutional conventions in the region, and (3) their role in adjudication. Third, the authors have studied the actual behaviour of key constitutional actors. Fourth, the authors have studied decisions by the Constitutional Courts of the Central European countries. The concept of constitutional conventions is completely idiotic, because if they were really constitutional conventions, they would somehow be enshrined in the constitution. They are just conventions. The president, even if directly elected, cannot change the constitution, but of course, he has the sacred right to change conventions that are not enshrined in the constitution. (Miloš Zeman, president of the Czech Republic, July 2013) Constitutional conventions are a relevant source of constitutional law (even if only subsidiary and apparently not formal) even in states whose legal order is based on the continental system of law, whereas in our opinion, they have a certain (not negligible) influence on the interpretation and © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_1

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M. BRUNCLÍK ET AL.

application of the constitution and, ultimately, also for possible changes to the constitutional text. (Ladislav Orosz and Vladimír Volˇcko, Slovak legal experts, 2013) The sources of universally binding law of the Republic of Poland shall be: the Constitution, statutes, ratified international agreements, and regulations. (art. 87, Constitution of the Republic of Poland) Public power can only be based on law. There can be no lacuna in this area because that would contradict the idea of constitutionality. The Constitution cannot be interpreted by memoranda of understanding hammered out in practice by public office holders. (Constitutional Court of Hungary, November 1991)

This collective monograph examines presidential constitutional conventions and the role they play in the political systems of 4 Central European countries (the Czech Republic, Slovakia, Hungary, and Poland), which are also commonly referred to as Visegrad countries.1 We started systematically working on this theme in 2020, but we occasionally touched upon the issue much earlier. Indeed, we repeatedly came across constitutional conventions acting as important factors affecting the operation of political regimes in the region and beyond. Thus, the concept of constitutional conventions was far from unfamiliar, yet it was difficult to employ the concept in our analyses since we found it difficult to properly grasp the concept. We felt that this somewhat inconspicuous concept had become increasingly important for politics in the region, but without a concentrated effort to understand and conceptualise the term, we would fail to utilise it in our research. In other words, given the importance of the concept as well as the great deal of ambiguity surrounding the concept, we decided to open a new venue for our research by focusing

1 Even though the term ‘Visegrad countries’ is unequivocal, in contrast to the term Central Europe, we stick to the latter since it is more common and generally used by both scholars and the general public in the region. Even though the range of countries that fall in this category varies by study, by the term we denote the 4 countries under scrutiny. The term Visegrad countries (Visegrad group) originated in the summit meetings of leaders from Czechoslovakia (from 1993, the Czech and Slovak Republics), Hungary, and Poland, held in the Hungarian town of Visegrád in 1991. Visegrád was deliberately chosen as the location for the 1991 meeting as an intentional allusion to the mediaeval Visegrad meeting in 1335 between the Kings of Bohemia, Hungary, and Poland.

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INTRODUCTION

3

on the concept as an important tool for studying presidential politics (and more) in the region. Alongside this reason to immerse ourselves in this theme, a peculiar paradox has encouraged us to elaborate on the book. On the one hand, very little has been written about constitutional conventions in the region. Politicians, who are in fact the makers of constitutional conventions, rarely speak about such rules. With a few exceptions, Constitutional Courts in the region have proven quite hesitant, reluctant, and even averse to the notion of constitutional conventions. As a result, constitutional conventions have largely been neglected and/or disregarded both by politicians2 and by experts. On the other hand, despite the above adverse conditions, some constitutional conventions have emerged in Central European countries. Not only this, constitutional conventions in general and presidential constitutional conventions in particular have significant political implications. In all the countries under scrutiny, the constitutional practice of the president differs somewhat from its formal constitutional positioning. Hence, there is a varying degree of divergence between formal (constitutional) rules and actual constitutional practice. We believe that alongside the formal (constitutional) provisions, we have to study the inconspicuous rules (i.e., constitutional conventions) that matter and co-shape both the everyday operation and the character of regimes. To sum up, despite their importance, constitutional conventions have not been sufficiently studied and analysed in the region. No systematic work has yet been published that would focus on the Central European countries (Czechia, Slovakia, Hungary, and Poland). Along with this, the scholarship on (presidential) constitutional conventions rarely examines the implications that these conventions have on the political system. Only a couple of articles on constitutional conventions in the region have been written recently, mostly being by the authors of this book (for the literature review, see Chapter 2). This book aims to fill in these gaps in the literature. Since the concept of constitutional conventions originated in the English-speaking world, in particular in the UK, most works on constitutional conventions deal with Anglo-Saxon countries, especially those following the Westminster system (Cooray, 1979; Dicey, 1885; Galligan & Brenton, 2015; 2 An extreme example of this ignoring of or even highly negative approach to constitutional conventions can be exemplified by the Czech President Miloš Zeman (see the quote in the opening of this chapter).

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Heard, 1991, 2012; Jennings, 1959; Killey, 2014; Marshall, 2001; Plaxton, 2016; Twomey, 2011)3 ; it is only natural that we start this book with a literature review and conceptual analysis as the first step on our way to presenting our own definition of the constitutional conventions that fits the Central European region. Our case selection results from 5 factors. First, despite the fact that all the Central European countries can be classified as parliamentary regimes and all the presidents play a similar role in their countries, a more detailed look may reveal striking differences as regard the formal powers of the president and actual constitutional practice. In the Czech Republic, Poland, and Slovakia, the president’s authority may exceed their formal constitutional powers. In contrast, the actual performance of the Hungarian president is weaker in comparison with his/her formal constitutional powers. In the book, we argue that the existence of constitutional conventions can at least partially explain the divergence between formal constitutional powers and actual constitutional practice.4 Second, and connected to our first point, these countries have also witnessed significant political and scholarly discussions on presidential activism and the appropriate role presidents should play in the respective political systems. We claim that the issue of presidential constitutional conventions is an integral part of these discussions. Third, presidents are elected through direct general elections, with the exception of Hungary. Despite not being popularly elected, the Hungarian president has many aspects in common with other presidents in the region; therefore, the Hungarian head of state is compared to and contrasted with other presidents in the region. In some cases, popular elections strengthened the position of the president or served as an argument for strengthening presidential power beyond those competences laid out in the respective constitutional framework. With the introduction of direct general elections, particularly in the Czech Republic after 2012, the significance of debate on presidential constitutional conventions has

3 One can also find studies that examine other Western countries (for France, see, e.g., Avril & Gicquel, 1989; Bell, 1992; for Germany, e.g., Hatschek, 1909; Taylor, 2014; for Austria, e.g., Tiefenthaler, 2012; Welan & Neisser, 1971; Wielinger, 1984; or for the Netherlands, e.g., Vetzo, 2018). 4 However, as we show elsewhere (Brunclík & Kubát, 2019), the informal authority of the presidents and their activism (or restraint) may result from other factors than purely from constitutional conventions.

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grown. In connection with this, the role of such conventions in both political and academic debates has intensified. Fourth, all countries were part of the former Communist bloc, and all experienced democratic consolidation after 1989, a process in which their respective presidents played a major role. What is more, Central European presidents are influential actors, whether by fuelling or slowing down the rise of illiberalism and/or populism. This further underlines our argument: in order to assess the actual power of presidents, we have to look beyond the formal role prescribed to them in the constitution. Finally, despite having a great deal in common, the countries vary on some important issues (e.g., different historical trajectories, varying democracy scores, and varying scores of presidential power). Such differences between these cases represent the region and provide a good opportunity to present a significant contribution to the comparative study of Central European politics. As far as the broader aims of the monograph, we seek to bridge the research gap indicated above and elaborate a systematic comparative analysis of presidential constitutional conventions in the region. This analysis has 2 major parts. First, since the concept is not firmly established in the scholarly literature on the region, following a literature review, a review of constitutional systems, and the historical legal background, we formulate a working definition of constitutional conventions that serves as the basis for our analysis of presidential constitutional conventions in Central European countries. Second, an empirical analysis follows with the aim of identifying those patterns of behaviour that meet our definition of constitutional conventions. We seek not only to describe but also compare and classify the presidential constitutional conventions. We study how these rules were established, how they are utilised in practice, and how they shape the overall power of the president. Furthermore, the book studies how constitutional conventions are treated by Constitutional Courts and what relevance and importance they ascribe to constitutional conventions. We also pay attention to patterns of behaviour that cannot be classified as constitutional conventions, though they still might become the germs of future constitutional conventions. As for the approach to the research topic, which is truly interdisciplinary,5 the collective of authors includes both political scientists and 5 Indeed, as James Wilson argued, ‘the notion of conventions also creates a bridge between law and political science…’ (1992, p. 653).

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experts on constitutional law. We believe the topic of this monograph requires experts from both areas. To date, we have seen very little comparative work on the form and role of (presidential) constitutional conventions, notably in political science. This is surprising given the fact that (presidential) constitutional conventions are put in place by political actors for political actors. In other words, they present a form of the political arrangement. In this sense, the herein presented book responds to the words of A. V. Dicey, the founding father of the study of constitutional conventions, from 1885: ‘As a lawyer, I find these matters [the conventions] too high for me. Their practical solution must be left to the profound wisdom of Members of Parliament; their speculative solution belongs to the province of political theorists’ (Dicey, 1885, p. cxxxix). The findings, arguments, and conclusions of the book are based on 4 major pillars, as exemplified by the 4 statements. First, we delve into the constitutional texts and a couple of laws directly related to the position and powers of the presidents of Central European countries. Second, we do our best to carefully explore and present the scholarly literature. We started with leading experts on the concept of constitutional conventions in Anglo-Saxon countries. We also rely on critical readings of the literature elaborated by experts on Central European constitutional systems. Moreover, since the literature proved limited, we conducted 46 semi-structured interviews with country experts.6 To be more specific, we asked them about (1) the conceptualisation of the term, (2) specific constitutional conventions, and (3) their role in adjudication. Overall, combining knowledge from the literature and interviews with the experts creates a unique basis for our research that, therefore, offers novel findings and conclusions. Third, we study the actual behaviour of key constitutional actors who are central to the concept of constitutional conventions as they can create and consolidate constitutional conventions, yet they can also breach and destroy them. Fourth, we study decisions by the Constitutional Courts of Central European countries. These institutions may further directly influence the fate of constitutional conventions. The courts may help enlarge or narrow the area for constitutional conventions, or they may help consolidate constitutional conventions or work against them.

6 In total, we addressed 92 scholars in all 4 countries, and we interviewed 46 of them between 2020 and 2021.

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As far as the structure of the book is concerned, this text is divided into 6 chapters. The introduction (i.e., the present chapter) is the first chapter. The second chapter dwells on the concept of constitutional conventions associated with presidents. The literature review is introduced against the backdrop of a brief introduction to general legal and constitutional contexts. The rationale behind this is to explore the relevance that respective constitutional systems attribute to constitutional conventions and what approach is taken toward these informal rules of constitutional practice by pertinent actors, such as constitutional authorities (including Constitutional Courts and their rulings) and leading scholars or other experts. In this way, the chapter introduces the theoretical and conceptual framework of this book. Building on Anglo-Saxon literature, where constitutional conventions have been scrutinised in depth ever since Albert Venn Dicey’s, 1885 seminal work (Dicey, 1885), while also reviewing the scholarship of German-speaking countries and works published in Czech, Slovak, Hungarian, and Polish (e.g., Bárány, 2014; Horváth, 2009; Kindlová, 2008; Kysela, 2008; Neumann, 2019; Píša, 2014; Szomszéd, 2005; Wieciech, 2011), we present a working definition of presidential constitutional conventions. For the purposes of Chapter 4, which analyses and compares constitutional conventions in the region, we also offer a classification of presidential constitutional conventions based on their origin, relation to the constitutional text, effect on the real power of the president, degree of presidential discretion, and type (based on the overall importance of the convention for the constitutional system) (see Heard, 1989; Jennings, 1959; Taylor, 2014). In Chapter 3, we introduce the formal constitutional framework, which creates the potential space for constitutional conventions. We are specifically concerned with the general position of presidents within their constitutional systems as well as their legislative and non-legislative powers. We also focus on constitutional amendments affecting the position and powers of the president since we believe that constitutional changes negatively affect the rise and consolidation of constitutional conventions. The aim of the fourth chapter, which is central to the book, is to identify presidential constitutional conventions. They are further distinguished in relation to various institutional relations, which follow the division of responsibilities into distinct branches of the political system:

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president-government relations (e.g., cabinet formation, cabinet resignation, appointments where both actors are involved, etc.), presidentparliament relations (e.g., presidential veto, parliamentary speeches, etc.), and relations between the president and judiciary. This structure is kept for all 4 countries. In addition, we also debate several other areas for individual countries where the notion of constitutional conventions appears relevant. Alongside the classification of conventions according to these areas, we apply the classification of constitutional conventions outlined in Chapter 2. Chapter 4 additionally focuses on those practices and rules that are not yet conventions (or ceased to be so). In other words, we seek to take account of the ‘grey zone’ of the theme to debate emerging conventions that have the potential to become full constitutional conventions in the future. The aim of Chapter 5 is to analyse the way in which constitutional conventions are dealt with by Constitutional Courts. First, we inquire about the general manner that the courts approach the unwritten rules of their respective constitutional systems, including constitutional conventions. Second, we specifically focus on those cases in which presidential constitutional conventions were involved. In this vein, this chapter is further interested in how Constitutional Courts encourage/inhibit the rise and consolidation of constitutional conventions. However, since the Polish and Hungarian Constitutional Courts are basically silent about the concept (we make an effort to comment on this point in Chapter 2 by analysing the historical legal background of each country), Chapter 5 is concerned with the Czech and Slovak cases only. The final chapter of the book is a conclusion. Given the fact that each book chapter is concluded with a summary, we do not consider it necessary to systematically repeat partial summaries in the conclusion, although we get back to some of the key points we made in respective book chapters. The conclusion is meant as a pool of our thoughts indicating venues for future research revolving around the concept of constitutional conventions. We believe this book brings forward a range of new empirical data and comparative findings on presidential constitutional conventions in Central European countries. By focusing on the often-overlooked region of Central Europe, this work subsequently sheds light on the patterns of presidential politics in the Czech Republic, Poland, Hungary, and Slovakia. It also provides the classification of presidential constitutional conventions, which is aimed at serving further comparative work on the

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informal powers of presidents. As a result, the book delivers a precious opportunity to learn more about the understudied aspects of Central European politics thanks to the unique analysis of the literature, the behaviour of political actors, and the perspective of experts.

References Avril, P., & Gicquel, J. (1989). Droit parlementaire. Montchrestien. Bárány, E. (Ed.). (2014). Zmena práva. Ústav štátu a práva SAV. Bell, J. (1992). French Constitutional Law. Oxford University Press. Brunclík, M., & Kubát, M. (2019). Parliamentarism, Semi-Presidentialism and Presidents. Presidential Politics in Central Europe. Routledge. Cooray, L. M. (1979). Conventions, the Australian Constitution and the Future. Legal Book Company. Dicey, A. V. (1885). Lectures Introductory to the Study of the Law of the Constitution. Macmillan. Galligan, B., & Brenton, S. (Eds.). (2015). Constitutional Conventions in Westminster Systems. Cambridge University Press. Hatschek, J. (1909). Konventionalregeln oder über die Grenzen der naturwissenschaftlichen Begriffsbildung im öffentlichen Recht. Jahrbuch Des Öffentlichen Rechts Der Gegenwart, 3, 1–67. Heard, A. (1989). Recognizing the Variety Among Constitutional Conventions. Canadian Journal of Political Science, 22(1), 63–81. Heard, A. (1991). Canadian Constitutional Conventions: The Marriage of Law and Politics. Oxford University Press. Heard, A. (2012). Constitutional Conventions: The Heart of the Living Constitution. Journal of Parliamentary and Political Law, 6, 319–338. Horváth, P. (2009). Az elismerési szabály foglya.az allamf˝ o szerepe a kormanyalakításban. Politikatudományi Szemle, 18(3), 91–111. Jennings, I. (1959). The Law and the Constitution. University of London Press. Killey, I. (2014). Constitutional Conventions in Australia. An Introduction to the Unwritten Rules of Australia’s Constitutions. Anthem Press. Kindlová, M. (2008). Ústavní zvyklosti jako souˇcást ústavy (komparace commonˇ wealthského pˇrístupu a judikatury Ústavního soudu CR). In K. Klíma & J. ˇ ek. Jirásek, Pocta Jánu Gronskému (pp. 300–317). Aleš Cenˇ Kysela, J. (2008). Ústavní principy, ústavní konvence a ústavní inženýrství. In K. ˇ ek. Klíma & J. Jirásek, Pocta Jánu Gronskému (pp. 121–136). Aleš Cenˇ Marshall, G. (2001). Constitutional Conventions: The Rules and Forms of Political Accountability. Clarendon Press. Neumann, J. (2019). Ústavné zvyklosti – kritika, kontext, reflexie. Právny obzor: teoretický cˇasopis pre otázky štátu a práva, 102(6), 470–482.

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Orosz, L., & Volˇcko, V. (2013). Ústavné zvyklosti a ich vplyv na interpretáciu, aplikáciu a zmenu práva. In E. Bárány, Zmena práva (pp. 114–126). Ústav štátu a práva SAV. Píša, R. (2014). Ústavní konvence komparativnˇe. In J. Wintr & M. Antoš (Eds.), Ústavní právo v mezinárodním kontextu (pp. 17–26). Univerzita Karlova v Praze. Plaxton, M. (2016). The Caretaker Convention and Supreme Court Appointments. Supreme Court Law Review, 72, 449–477. Szomszéd, O. (2005). Államf˝ oi jogkörök alkalmazása, a gyakorlatban. Politikatudományi Szemle, 14(3–4), 131–147. Taylor, G. (2014). Convention by Consensus: Constitutional Conventions in Germany. International Journal of Constitutional Law, 12(2), 303–329. Tiefenthaler, V. (2012). Gewohnheit und Verfassung. Nomos. Twomey, A. (2011). Changing the Leader—The Constitutional Conventions Concerning the Resignation of Prime Ministers and Premiers. Federal Law Review, 39(3), 329–360. Vetzo, M. (2018). The Legal Relevance of Constitutional Conventions in the United Kingdom and the Netherlands. Utrecht Law Review, 14(1), 143–156. Welan, M., & Neisser, H. (1971). Der Bundeskanzler im österreichischen Verfassungsgefüge. Hollinek. Wieciech, T. (2011). Konwenanse konstytucyjne. Wydawnictwo Uniwersytetu Jagiellonskiego. ´ Wielinger, G. (1984). Politische Konventionen als Bedingungen einer funktionierenden Demokratie. In W. Krawietz et al., Theorie der Normen: Festgabe für Ota Weinberger zum 65. Geburtstag (pp. 211–222). Duncker & Humblot. Wilson, J. G. (1992). American Constitutional Conventions: The Judicially Unenforceable Rules That Combine with Judicial Doctrine and Public Opinion to Regulate Political Behavior. Buffalo Law Review, 40(3), 645–738.

CHAPTER 2

What Are Presidential Constitutional Conventions?

Since this book deals with presidential constitutional conventions in yet unresearched Central European countries (the Czech Republic, Slovakia, Hungary, Poland), a conceptualisation of the issue is the first necessary step. Thus, the main aim of this chapter is to provide a working definition of presidential constitutional conventions that shall be used in subsequent chapters. Before suggesting a definition, we need to provide an overview of the existing scholarship as we believe it will shed light on the purposes of this chapter. The literature review is introduced against a backdrop of the general legal and constitutional contexts in which constitutional conventions operate. The rationale behind this is to explore how much room and importance the relevant constitutional systems attribute to constitutional conventions and what approach toward these informal rules of constitutional practice is taken by relevant actors, such as constitutional authorities (including constitutional courts—see Chapter 5 of this book) and leading scholars or other experts. The review of available literature and an overview of relevant legal and constitutional contexts are divided into 3 major parts. First, we look into how Anglo-Saxon scholarship, which is surely the most voluminous, deals with constitutional conventions and why we particularly find the phenomenon so widely present in the Anglo-Saxon countries of the world. Afterwards, we focus on the situation of German-language scholarship, again after an analysis of the wider legal and constitutional © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_2

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milieu, explaining why far less attention has been given to the subject of constitutional conventions in German-speaking countries. The rationale behind our choice to compare these 2 major systems is straightforward. In their own way, both have substantially influenced the general legal and constitutional thinking of the 4 Central European countries as well as the understanding of conventions in their own scholarly literature. Third and finally, we set out to explore the pertinent scholarship in individual Central European countries, in each case again after exposing the fundamentals of their legal and constitutional situations forming the background against which such conventions must be assessed. The amount of their domestic academic literature is relatively limited, though it has grown in recent years; we believe that we have managed to comprise the overwhelming majority of all the studies concerned with constitutional conventions in these countries. On the basis of the above-described sections, we proceed to the main objective of the chapter: formulating our definition of constitutional conventions and presenting their further classification as it is understood and used in subsequent chapters.

2.1 Constitutional Conventions in Anglo-Saxon Scholarship Constitutional conventions and the question of how much interest constitutional and political theory scholarship has paid to them are predominantly linked to the Anglo-Saxon world. Originally, the reason seems to have lied in English and later UK constitutional history, which subsequently influenced some other Anglo-Saxon constitutional systems. In England, the Glorious Revolution of 1688 firmly established the fundamental constitutional principle of the kingdom as the doctrine of parliamentary sovereignty. The doctrine holds that Parliament is the supreme law-giver, and no one, not even the courts, may set aside an Act of Parliament.1 Even though possessing the quality of a ‘constitutional moment’ (Ackerman, 1991, 1998), this event was not accompanied 1 The term Parliament with capital P denotes the English and later British and UK parliament. According to A. V. Dicey, ‘The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament … has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the

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by the adoption of a codified (formal) constitution2 that would determine the competences of various governmental authorities and accord parliament supreme legislative power (Elliott, 2019a, p. 73). Thus, the fundamental principle of parliamentary sovereignty has been based on its political and also judicial acceptance rather than on a codified constitution. Later on, some very far-reaching constitutional events, such as the establishment of Great Britain and later the United Kingdom, did not result in the adoption of a codified (formal) constitution either (see Loughlin, 2016). This is one of the reasons why the English and later UK constitution has at times been called a ‘political constitution’ rather than a ‘legal constitution’ (Elliott, 2019a, pp. 72–76; critically Munro, 2005, pp. 8–14).3 Among other reasons for this claim, one is particularly

legislation of Parliament’ (Dicey, 1885, pp. 39–40). A current analysis of this principle appears in, e.g. (Jowell & O’Cinneide, 2019, pp. 29–57). 2 By the codified constitution, we understand one piece of legislation (or a set of pieces of legislation) determining the basic characteristics of the state, its main constitutional authorities, and their powers and the position of individuals in the state. An uncodified constitution denotes a constitution in which the regulation of these matters is scattered among legislation, customs, conventions, etc. In the United Kingdom, courts have acknowledged a category of ‘constitutional statutes’, in relation to which the doctrine of implied repeal (a later Act of Parliament is considered as repealing prior inconsistent legislation by implication, to the extent that the inconsistency) does not apply and an express repeal (amendment) provision must be included (e.g., Thoburn v Sunderland City Council [2002] EWHC 195 (Admin)). However, even this judicial development has not changed the fundamentally uncodified nature of the UK constitution. A formal constitution denotes a piece of legislation (or a set of pieces of legislation) adopted in a special manner, usually in a legislative procedure more difficult than in the case of ordinary legislation (a rigid constitution), with a special title determining that the legislation regulates matters of constitutional importance (typically ‘constitutional act or statute’) and usually with a higher legal force than the rest of the legislation. An informal constitution is one in which even substantively constitutionally relevant matters are regulated in ordinary legislation adopted via a regular legislative process. As regards the UK, we can call its constitution both uncodified and informal. The gist of this was nicely put by the UK Supreme Court in Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5 (the Miller I case): ‘Unlike most countries, the United Kingdom does not have a constitution in the sense of a single coherent code of fundamental law which prevails over all other sources of law. Our constitutional arrangements have developed over time in a pragmatic as much as in a principled way, through a combination of statutes, events, conventions, academic writings and judicial decisions’ (para. 40). 3 It should be recalled, however, that especially in R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland ([2019] UKSC 41) (the Miller II case), the UK Supreme Court stressed the power of fundamental legal ‘constitutional principles

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important for our purposes. In the absence of a codified constitution, the activities of constitutional bodies are regulated by legal sources—esp. legislation, royal prerogative, and judge-made law—but a large part of constitutional practice is governed by politically established, unwritten, non-legal4 constitutional rules: constitutional conventions. As Jennings observed, ‘The legal structure of the constitution is everywhere penetrated, transformed and given efficiency by conventions’ (Jennings, 1959, p. 81). The historical situation surrounding the establishment of the UK’s constitutional system has in turn impacted some other Anglo-Saxon constitutional systems, especially those in the Commonwealth. These systems feature either an uncodified constitution like the UK (and New Zealand) or a (partly) codified constitution (e.g., Australia and Canada); this leaves some relevant aspects concerning how such systems work with uncodified rules binding the conduct of constitutional bodies (cf., Galligan & Brenton, 2015). As to the character of the legal system per se, most of these countries belong to the family based on the Anglo-Saxon legal tradition (Kischel, 2015). Since the twentieth century, these systems, originally based on the clear dominance of unwritten law (customary law and judge-made law), have substantially changed, and written law (codified constitutions if applicable, primary and secondary legislation) has become crucial in many areas of legal regulation. Nevertheless, unwritten legal sources, among them judge-made law, still represent a crucial component of these legal systems (Bobek et al., 2013, pp. 44–45; Goodrich, 1986, p. 40). Thus, this tradition stands in marked contrast to the situation in the

developed by the common law’ and the responsibility of courts to uphold them. The court, in particular, observed that the UK constitution ‘includes numerous principles of law, which are enforceable by the courts in the same way as other legal principles. In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective. It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise of power has transgressed those limits. The court cannot shirk that responsibility merely on the ground that the question raised is political in tone or context’ (para. 39). In other words, 2 fundamental constitutional principles were dealt with in the case: parliamentary sovereignty and executive accountability to Parliament. 4 However, some recent scholarship challenges the non-legal nature of constitutional conventions and stresses the artificiality of a strict separation between law and conventions (e.g., Barber, 2009, see also Sect. 2.4.2).

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Germanic legal tradition analysed below, which in principle overwhelmingly relies on written sources of law and the all-encompassing character of codified constitutions and parliamentary legislation; yet, these AngloSaxon systems are based on the understanding that written legal sources are but one part of the constitutional system, that unwritten law plays an important role in the system too, and that even non-legal (political) constitutional rules substantially determine the practical way in which the constitution works. Working with unwritten sources of law on the one hand and experiencing how constitutional rules in the form of conventions determine important parts of their respective governmental systems on the other, these 2 factors undoubtedly influenced the amount of attention scholars (and legal practitioners, etc.) gave to the concept of constitutional conventions as unwritten components of the constitution. The scholarly research in Anglo-Saxon countries into this phenomenon dates back at least to the second half of the nineteenth century, which has beefed up a long and voluminous tradition of scholarly research to date. Most of it seems to deal with countries following the Westminster political system, such as the UK (e.g., Chand, 1938; Dicey, 1885; Marshall, 2001), Australia (e.g., Cooray, 1979; Killey, 2014; Twomey, 2011), or Canada (e.g., Dodek, 2011; Forsey, 1984; Heard, 1991, 2012; Plaxton, 2016; Sossin & Dodek, 2009).5 Also, these systems have a much longer and uninterrupted tradition of constitutionalism (for more on this term, see Rosenfeld & Sajó, 2012; Sartori, 1962). Although the phenomenon of constitutional conventions has traditionally been related to Albert Venn Dicey’s seminal work, first published in 1885 (Dicey, 1885), it was already recognised by his predecessors (Phillips, 1966). Dicey juxtaposed 2 sets of rules6 : laws that are enforced by courts and ‘conventions of the constitutions’ which are neither 5 Some attention is given to constitutional conventions in the USA as well, which is not, however, a Commonwealth state and which does not follow the Westminster system either. Moreover, there are studies that inquire into conventions in some other non-Anglo-Saxon countries, such as France (Avril, 1997; Avril & Gicquel, 1989; Bell, 1992; Lemaire, 1998; Mény, 1989; for further references and the overview of the French scholarship, see Giba, 2020a), Germany (Taylor, 2014), or the Netherlands, where conventions are increasingly more relevant (see Vetzo, 2018). 6 However, the idea of a difference between legal (statutory) rules and non-legal (informal) rules is much older (for an overview of the academic heritage in this particular area of research, see Phillips, 1966).

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enforced nor recognised by the courts (Dicey, 1885, pp. cxl–cxli, 277). As for the second type of rules, he refers to ‘conventions, understandings, habits, or practices which… regulate the conduct of the several members of the sovereign power, of the Ministry, or of other officials…’. Dicey also refers to these rules as ‘constitutional morality’ (Dicey, 1885, p. cxli). Even though Dicey’s understanding of constitutional conventions continues to remain highly influential, scholarship concerned with constitutional conventions has fostered very rich and diverse approaches, at times in agreement in principle with Dicey and at other times contradicting him. The voluminous and diversified literature thus needs to be differentiated between various understandings and concepts of constitutional conventions. In this regard, Andrew Heard provides a useful distinction of 3 major ways in which conventions are understood in scholarly literature. The first (‘orthodox’) approach considers constitutional conventions as binding rules based on historical precedents (e.g., Jennings, 1959, p. 136). The prevailing discourse attributes past events as exerting a binding influence on the political actors of today (Jaconelli, 1999, p. 28). This view received a stamp of approval by the Supreme Court of Canada when it considered constitutional conventions in the Patriation Reference case (1981, 1 S.C.R. 753). It is worth noting that the Supreme Court employed the so-called Jenning’s test to ascertain whether a constitutional convention (one that was central to the legal dispute) existed. Ivor Jennings argued that in order to decide whether a convention has arisen, one should take 3 factors into account: ‘… First, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?’ (Jennings, 1959, p. 136). This approach leads to problems concerning how long a particular practice must last before it can be labelled a convention.7 Consequently, this approach does not practically allow for assuming the existence of constitutional conventions until a few decades have elapsed since the origins of the democratic constitution. This is particularly relevant in the context of Central European countries, whose democratic institutions are still relatively recent as they have been in operation for only 3 decades (for a debate, see also Giba, 2020a; Neumann, 2019).8 7 For a criticism of this approach, see Heard (2012). 8 J. Neumann claims that the attempt at employing the Anglo-Saxon inspiration ‘sug-

gests that the idea of the emergence of constitutional conventions is, given the low age

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The second approach comes from the assumption that conventions are ‘flexible guidelines, which may pose very broad obligations but still permit political actors to explore alternative courses of action; what is conventionally permitted or required is what the attentive public will support or acquiesce to at any given time’ (Heard, 2012, p. 320). This ‘liberal’ approach is more relaxed and does not set strict rules for how conventions emerge. Conventions are understood as useful tools that might help bridge the gap between a brief or unclear constitutional text that does not offer unambiguous instruction and a particular situation in which actors are supposed to act without knowledge of how to act. The conventions offer a smooth way to bridge such a gap. Only the test of public reaction will determine whether actors stick to the convention or act contrary to it (cf., Heard, 2012, p. 329). However, this approach runs the risk of what Giovanni Sartori labelled ‘constitutional stretching’ (Sartori, 1970, pp. 1034–1036) because (1) varying political practices that are not consistently followed and (2) even ceremonies and protocols without any effect on the operation of the constitutional systems are included among constitutional conventions. The third view claims that conventions arise from basic constitutional principles and reflect important constitutional values. For example, the Westminster Parliament is not to use its power of legislation in an oppressive or tyrannical way. Although this convention is vague, it has been a widely accepted rule resting on the principle of constitutionalism and the rule of law (Marshall, 2001, p. 9; for details, see also Heard, 1989). Furthermore, one of the most important questions that are discussed in relation to conventions is the consequences of and sanctions for their breach. Conventions are not commonly enforced by courts (for more on this issue, see Ahmed et al., 2019, p. 9; Barber, 2009; Dicey, 1885, pp. 292–297; Finer, 1956; Plaxton, 2016, and the recent literature on the UK Supreme Court Brexit-related Miller I and Miller II cases9 ). Hence, scholars often delve into a political/ethical debate and discuss the nature of the enforcement of conventions and sanctions for breaches that go beyond the courts (see Heard, 2012, p. 331; Jaconelli, 1999, pp. 43–45; of most countries in the Central European region, rather a utopia’ (Neumann, 2019, p. 477). 9 Fn. no. 8 and 9, e.g., A. Perry (2019) argues that the UK Supreme Court, in Miller II , enforced not only the constitutional principle but also a convention of executive accountability to parliament. An opposite view is presented, e.g., by M. Elliott (2019b).

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Jennings, 1959, p. 136; Waldron, 1990, p. 62). For example, Vermeule claims that the sense of obligation results either from a credible threat of sanctions or from internalised precepts of political morality (Vermeule, 2013, p. 7). The non-legal enforcement is typically executed by the pressure of public opinion and political criticism, and it may involve a loss of office for political (not legal) reasons (cf., Bradley & Ewing, 2007, p. 24; Chand, 1938; Finer, 1956; Killey, 2014; Vermeule, 2013). Several other themes have been largely debated by Anglo-Saxon scholarship: the origins of the conventions (for details, see Bowers, 2005; Chand, 1938; Heard, 1989, pp. 64–67; 2012, p. 330; Jaconelli, 1999; Jennings, 1959; Marshall, 2001, pp. 8–9; Taylor, 2014), the way the conventions are treated by courts (Ahmed et al., 2019; Aroney, 2015; Barber, 2009; Heard, 1991, 2012; Maley, 1985; Sirota, 2011; Vermeule, 2013), compliance with the constitutional text, the impact on the real power of constitutional actors (for details, see Dicey, 1885, p. 285; Hart, 1961; Jaconelli, 1999, p. 27; Sirota, 2011, p. 30; cf., Jaconelli, 2005, p. 152; Marshall, 2001, pp. 7–8), the importance of constitutional conventions for the constitutional system (see Dicey, 1885, pp. 33–34; Heard, 1989, pp. 71–74; Mackintosh, 1977, pp. 20–21; Marshall, 2001, p. 5), the epistemology of constitutional conventions (i.e., the way the conventions are identified) (see Forsey, 1984, p. 13; Killey, 2014, pp. 8– 9), etc. Some of these aspects are further elaborated on in Sect. 2.4 of this chapter since they are used as a basis for the classification of constitutional conventions as detailed in this book.

2.2 Constitutional Conventions in German-Speaking Countries Due to the close historical and cultural proximity, the constitutional tradition of Austria and Germany influenced the evolution of constitutional thinking in Central Europe (Blažková & Chmel, 2017; Jakab, 2007a; Kischel, 2015). Therefore, it is necessary to take a closer look at the scholarship and traditions of constitutional conventions in German-speaking countries, which are much less robust than those of the Anglo-Saxon world. Of course, this is rooted in their legal culture, which is principally built upon codified law essentially acknowledging the validity of positively enacted laws and hence being rather reluctant toward usages, customs, and customary law (Jakab, 2007b; Kischel, 2015, pp. 389–477). Similar to private law codifications, which were understood as a comprehensive

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piece of legislation of that very branch of the law, constitutions are basically assumed to be all-encompassing. However, based on the classical comparative presumption of similarity, this does not necessarily mean that the continental constitutional orders do not have the same challenges to tackle, just like the ones dealt with by constitutional conventions in Anglo-Saxon countries (Michaels, 2011). Specifically, there are 2 questions to be answered: how does the German and Austrian theory minimise the scope of usages and customs in their constitutional law, and what substitutes the function of conventions in these legal orders? The investigation of such questions helps to discover whether Central European countries follow the patterns of the Austrian and German tradition or take common law countries as their example. The modern constitutions of Austria and Germany are codified, which stands in contrast to the British historical and uncodified constitution. Therefore, many questions are directly governed by different provisions of the constitution. Constitutional theory presupposes that a constitutional order was established to control, constrain, and organise the state and its organs.10 These organs are set up and constituted by constitutions, meaning they exist because the constitution says so. In doing so, they execute the powers conferred to them by the constitution. Hence, it would be a theoretical contradiction if constitutional organs were allowed and empowered to set the rules by which they are obliged to follow (the classical opposition of pouvoir constituant and pouvoir constitué). Constitutional rules are, therefore, overwhelmingly written and rather detailed, and in very many cases there is no need for a constitutional convention; for example, the role and involvement of parliament in the conclusion of international treaties is basically governed by written rules; there is no need for a convention like the former so-called Ponsonby convention11 in the United Kingdom; to add another illustration, parliamentary approval of the employment of the armed forces is also governed

10 Especially for English native speakers, the term ‘organ’ might appear unusual. Still, it is a generally recognised term in the context of Central European constitutional systems, and the usage of the term can thus be justified. Unless stated otherwise, we use the terms ‘organ’, ‘authority’, or ‘body’ interchangeably. 11 The rule required that prior to ratification, international treaties had to be laid before the UK parliament for scrutiny. The Ponsonby Convention was codified in the United Kingdom in the Constitutional Reform and Governance Act 2010.

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by written provisions, in contrast to the war power in the UK (McCormack, 2019). Even if the degree of definiteness of the constitution varies between Austria and Germany (in favour of Austria), there are basically written rules precisely because that is the primary function of a constitution. Moreover, the continental legal tradition is also based on an academic interpretation of the written rules (Kischel, 2015), which the courts consult and respect. The academic literature is expected to explain how the constitutional organs should work irrespectively of how they actually work, simply because factuality should not constitute any normativity in essence. Hans Kelsen’s pure theory of law is the most rigid one in this sense, and German constitutional thinking is more sensible to factuality (e.g., Hesse, 1959; Jellinek, 1906). Furthermore, continental constitutional courts (in comparison esp. with their US counterpart) are keener on adjudicating in politically sensitive conflicts of constitutional organs as well (Lechner & Zuck, 2011, pp. 41–45; Maunz & Dürig, 2022, Art. 59, para. 233–239b); hence, there is much less room and need to foster constitutional conventions (Bradley & Morrison, 2013). Because constitutional thinking is more legal than political (Tomkins, 2005), the German Constitutional Court, for instance, is less inclined to self-constrain its jurisdiction and more willing to decide even those politically sensitive issues that are often regarded to be too political by the US Supreme Court. Some of these issues would be the employment of the armed forces (Hufeld, 2019), the rights of the opposition,12 or the ambit of parliamentary enquiries.13 Judicial decisions clarified how to make use of the constitutional powers and prerogatives, which consequently narrowed the necessity for constitutional conventions considerably. Moreover, one cannot oversee how easy it is to amend the German or the Austrian constitutions in comparison with the US one. Precisely 12 E.g., BVerfGE 105, 197 – Minderheitsrechte im Untersuchungsausschuß; BVerfGE 142, 25 – Oppositionsrechte. 13 BVerfGE 124, 78 – BND-Untersuchungsausschuss; BVerfGE 124, 161 – Kleine Anfragen zur geheimdienstlichen Beschaffung, Speicherung und Weitergabe von Informationen über Abgeordnete; BVerfGE 131, 152 – Unterrichtungspflicht in europäischen Angelegenheiten nach Art. 23 GG; BVerfGE 132, 195 – Gebot der völkerrechtlichen Sicherstellung parlamentarischer Informationsrechte BVerfGE 139, 194 – Frage- und Informationsrechte des Bundestags bei Unterstützungseinsätzen der Bundespolizei; BVerfGE 140, 160 – Information und Befassung des Parlaments bei Eileinsätzen der Bundeswehr.

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because the formal amendment of the legal framework is an available tool, it is not necessary to make use of informal constitutional amendments (Masing, 2005). Although German and Austrian constitutional law is overwhelmingly written, there is still some room for unwritten rules. As a binding source of law, customary law (Gewohnheitsrecht ) holds a controversial status. The Austrian tradition is, however, far stricter in this respect; rooted in a pure theory of law, the doctrine does not recognise customary law as a valid source of constitutional law (Adamovich et al., 2011; Muzak, 1998). German public law is more relaxed in this respect and acknowledges customary law, even if its status is subservient to written rules and its role is rather supplementary and explanatory (Tomuschat, 1972). The scholarship German language uses various terms that are not always clearly specified. Alongside customary law, some speak of unwritten constitutional law by which is understood some principles, maxims, and precepts of constitutional law (Wolff, 2000). These are rather doctrinal in nature, but in many cases they quintessentially summarise the earlier practice and tradition going back to the nineteenth (or in some cases even to the eighteenth) century, such as the principle of federal loyalty, Bundestreue (Schröcker, 1966a, 1966b). Unwritten constitutional law embodies some adamantly surviving elements of earlier (sometimes even monarchical) constitutional law that still influence the understanding and interpretation of constitutional law (Blankenagel, 1987). This traditional element of the constitution is not far from the phenomenon of constitutional conventions because they reflect how the constitution has usually been understood, and they are claimed to be normative in nature. They also often go back to some historical precedents. Nonetheless, and in contrast to the classic British understanding of constitutional conventions, they are considered to be legally binding, even if their ambit is imprecise and sometimes contested. The German tradition also recognises informal constitutional change. The so-called Verfassungswandel (Lothar, 2014; Roßnagel, 1983; Voßkuhle, 2004) refers to the phenomenon that the actual meaning of an open-textured expression of the constitution may change as time passes, and this may result in some incongruencies between the originally intended meaning of the given expression and its understanding nowadays. Constitutional conventions have a very similar function as they bridge the gap between the law in books and constitutional law in action.

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Austrian scholarship and practice are more conservative in this respect and observe some kind of (often impractical) originalism, sticking more closely to the constitutional text as it was understood at the time that it was enacted (Versteinerungstheorie); hence, this system prefers formal constitutional amendments. On the other hand, these formal amendments are politicised fairly easily because they have been overwhelmingly governed by large coalitions in Austria since the end of the Second World War, which in most cases means they could tailor-make the wording of the constitution according to their wishes. On the contrary, German scholarship and practice acknowledge the informal constitutional changes that have occurred either by societal changes or by the shifting practice of constitutional organs. One very vivid example is the dissolution of the lower house of the German parliament (Bundestag ), which was originally prohibited by the Basic Law (i.e., the German constitution) due to the adversary experiences made under the Weimar Constitution. Therefore, dissolution has only been allowed if the government loses confidence in the Bundestag. Nonetheless, these provisions may result in lame-duck governments even though new elections could reinvigorate public life and present a stronger government. Therefore, a few chancellors orchestrated no-confidence motions aimed to lose confidence and, by doing so, enable the dissolution of parliament as well as force new elections, which was contrary to the will of the authors of the Basic Law. A loud critique stressed that such manoeuvres are unconstitutional (Herbst, 2006; Klein, 1983; Pieper, 2007; Schlichting, 1984; Winkler, 2006). Nonetheless, the Federal Constitutional Court approved this practice under certain conditions14 and made the impression that state practices may cause a Verfassungswandel ; this would thereby create a new condition on how to make use of the dissolution power. Moreover, there are also some conventions that truly serve to determine how to exercise prerogative powers. Some of these conventions are presupposed by the constitutional text, like proposing the candidate for Chancellorship in Germany. According to Art. 63 of the German Basic Law, the ‘Chancellor shall be elected by the Bundestag without debate’, which logically presupposes that a debate or discussion has to take place before the actual proposal (Maunz & Dürig, 2022; Art. 63, para. 8). Similar to this is the situation with the election of Justices of the 14 BVerfGE 62, 1 – Bundestagsauflösung I; BVerfGE 114, 107 – Bundestagsauflösung II; BVerfGE 114, 121 – Bundestagsauflösung III.

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German Constitutional Court, where the practice has shown a clear divergence from constitutional law (Kischel, 2013). Moreover, and especially in parliamentary affairs, there are a number of rules of social interaction which are observed because they make future behaviour predictable; in doing so, they lower the cost of interaction, and their breach would affect social status negatively (e.g., Taylor, 2014). Therefore, an ongoing practice can be perceived (usus continuus ) in combination with the feeling of necessity to follow the practice (opinio necessitatis ) (Morlok, 2002). Nonetheless, they are not deemed to be legal obligations. Austrian scholarship is clear that the usually observed conventions, like the one proposing a candidate for chancellorship if s/he can command a majority of the National Assembly, are not legally binding (Öhlinger & Eberhard, 2019, para. 514). Otherwise, it would be necessary to acknowledge customary law as a source of the constitution, which would be contrary to the very foundations of continental legal theory. One may come to the conclusion that because continental constitutional systems are more legal and less political, constitutional conventions are less in focus in continental constitutional systems and their scholarship. The codified constitution is the guideline for and yardstick of how the state and politics should work. Usages and customs are therefore less relevant. Constitutional courts are, in line with the concept of a legal constitution, far keener in interpreting and enforcing legal rules set out by the constitution, and there is thus limited room for usages and conventions to evolve in general. Nonetheless, contrary to theoretical opposition, a good deal of informal and unwritten rules can be found, but these are less recognised by constitutional scholarship. Austrian constitutional legal scholarship is more formalistic than the German one and hence more reluctant to acknowledge other sources of law than written ones (Jakab, 2007b, p. 287). Therefore, customary law is only recognised as a source of international law. Even if it is observed for a very long time, its usage is not accepted as binding but only as a non-binding convention (Verfassungskonvention). The German tradition generally understands law less formalistically and acknowledges legally binding customary law and non-binding usages (or so-called informal rules). Nonetheless, there is no clear-cut definition of them, and the usually observed usages are also often called customary law (Gewohnheitsrecht ), whereby the term constitutional conventions comes up very rarely. Sometimes the expression of settled governmental praxis (ständige Staatspraxis ) or that of undisputed praxis (unbeanstandet gebliebene Staatspraxis ) are used, which

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might look familiar to conventions, but, in contrast, the settled practice has an explanatory rather than a normative character, and the Federal Constitutional Court might easily change its attitude toward the earlier undisputedly accepted praxis (cf., the changing attitude toward the legislative conciliation committee, Maunz & Dürig, 2022, Art 77, paras 83–85). Even if a blurry concept of and the distinction between binding and non-binding usages and conventions is known, not too much attention is paid to defining them, especially because of their rather marginal legal significance (Morlok, 2002). Nonetheless, these informal elements of the constitutional system might remind the observers from common law countries of conventions (Taylor, 2014) leading to an interesting result: although conventions are incompatible with the internal logic of the legal system, different labels are found for describing the discrepancies between the existing and written constitutions.

2.3

Constitutional Conventions in the Legal and Constitutional Context of Central European Countries and in Their Scholarship

In this section, we inquire into 2 major issues. First, we are concerned with the general legal and constitutional context of individual Central European countries. We will also briefly deal with some historical traits concerning their legal systems because this continued to influence the legal thinking in these countries even after 1989.15 Second, we focus on the hitherto scholarship on constitutional conventions written in the national languages of these Central European countries. Studying such issues will provide us with important information and valuable insights for our future analytical work on presidential conventions for at least 3 reasons. First, the fact that all the states belong to the tradition of continental law gives us useful insights (Kühn, 2005). These states experienced a decades-long tradition of legal thinking in terms of the exclusivity of written law, so the judicial and academic attention paid to the relevance of unwritten sources of the constitution after 1989 was not a matter of

15 Further historic information in relation to the constitutional position of head of state is presented in Chapter 3.

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fact and has only gradually developed. It became clear that the interpretation of the constitution and other legal documents often required a wider interpretative framework beyond the text of the relevant legal document. Thus, constitutional courts began applying open-textured constitutional principles like democracy, the rule of law, etc., sometimes even explicitly mentioned in the constitution but which allowed for diverse interpretations. At the same time, important practices of constitutional bodies, including those concerning the heads of state, developed without any direct textual support in the codified constitutions (praeter constitutionem), and politicians (as well as scholars) began paying greater attention to them, sometimes already presenting criticism if these practices were not followed in similar situations in the future, e.g., in the sphere of the presidential appointment powers. References to such ‘established practices’ have occasionally appeared in judicial proceedings, including at the level of constitutional courts. This was particularly the case of Slovakia and the Czech Republic, which in turn further promoted the doctrinal interest in the concept of constitutional conventions as unwritten parts of the constitution in these countries. However—as will be clear from the next parts of this chapter—the experiences of the 4 Central European states were not homogenous in this regard. The Hungarian Constitutional Court (fairly under the influence of the German constitutional scholarship) was also rather keen on applying abstract principles like democracy, human dignity, and the rule of law. However, it was reluctant to acknowledge any normative value of usages and conventions. Hungarian constitutional scholarship hence focused on case law and paid less attention to conceptualising conventions based upon actual political behaviour. This less empirical attitude is partially due to German/Austrian influence. A similarly reserved approach can be observed in Poland. Second, the global interest in the methods of formal but also informal constitutional amendments and their compliance with explicit or implied constitutional rules in individual countries (recently Albert, 2019; Roznai, 2017) has provided further impetus into studying how constitutional changes take place and what the role of constitutional conventions in this process may be. Therefore, the basic introduction into the rules of constitutional amendments in the 4 Central European countries will be given because it sheds light on the processes required by the respective constitutional systems if a valid constitutional amendment should take place. At the same time, constitutional texts and/or the case law of constitutional courts stipulate substantive limits on constitutional amendments,

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which may also become relevant for assessing (potential) informal constitutional changes taking place, including via (presidential) constitutional conventions. Last but not least, apart from studying the actual practice of constitutional conventions relevant for the position of presidents in Central European countries and apart from analysing the impact of conventions in the case law of their respective constitutional courts, the third major resource for this monograph’s analysis is in the branch of political science and constitutional scholarship. Thus, a comprehensive overview of the hitherto doctrinal views of constitutional conventions must and will be provided. 2.3.1

Czech Republic

Historical Legal Background Before embarking on a brief description of the legal and constitutional context of the Czech Republic, it is useful to introduce at least some information on what the legal system of Czechoslovakia (1918–1992) looked like. As one of the new states coming into being on the debris of the Austrian-Hungarian monarchy, Czechoslovakia opted for reception of the existing law.16 Therefore, the legal system consisted of former Austrian and Hungarian law in combination with the newly created Czechoslovak law (Hoetzel, 1937, p. 41). In the Czech historical lands of Bohemia, Moravia, and Silesia, written law was the core of the legal system, along the lines of the dominant German-Austrian legal doctrine (Gesetzespositivismus ). The status of customary law established before the end of Austria-Hungary was controversial (Hoetzel, 1937, pp. 46, 48). In Slovakia, formerly a part of Hungary, customary law was recognised as an independent source of law because of the abovementioned legal continuity with Hungarian law (Hoetzel, 1937, p. 48).17 The existence of constitutional conventions as non-legal rules accompanying the constitution was mentioned in some legal doctrinal works (Baxa, 1917, p. 40; 1924, p. 131; Neubauer, 1947, pp. 200–206). 16 By its very first legislative act (No. 11/1918 Coll., on the Establishment of the Independent Czechoslovak State (the ‘Reception Norm’)). 17 However, there were disputes as to the status of the earlier customary law after the adoption of the 1920 Czechoslovak constitution and as to whether and how new customs could become law after this event (Hoetzel, 1937, p. 48; Luby, 1939, p. 21).

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With the beginning of the communist dictatorship in Czechoslovakia in 1948, the country experienced a Stalinist-style legal system. On the one hand, there was, in theory, a strict approach toward stressing the exclusivity of sources recognised and sanctioned as law by the authority of the state. On the other hand, in legal practice, law was instrumentally construed or even misinterpreted (if not directly disobeyed) to promote socialism and the Marxism-Leninism ideology in the spirit of abstract principles like the socialist community, the interests of the working people, etc. (Kühn, 2005, pp. 19–52). In the 1960s, the situation gradually changed. With a bit of simplification, even though the rhetoric of the propaganda was generally maintained until 1970–1980s, legal (judicial) culture tended to stick to a formalistic application of legal regulations without the effective use of ideological principles, save in politically sensitive cases and official proclamations. Written law was considered exclusive, and everything else (e.g., customs and conventions) was suspicious because it was out of reach of the centralist regime and thus not under its control (Kühn, 2005, pp. 56–62, 76, 85). Even after the change of the political regime in 1989, this legal thinking, which almost exclusively focused on written law and downplaying other potential sources, influenced the way and speed of the transition to liberal constitutionalism in the Czech Republic; this likewise complicated the internalisation of the convergence of continental and common law traditions visible in the Western world since the twentieth century. As will be apparent below, a major role in transforming the legal culture was played by the Czech Constitutional Court, established in 1993 (taking over the pioneering work of the short-lived Czechoslovak Constitutional Court). Legal and Constitutional Context of the Czech Republic Despite the abovementioned convergence of the 2 legal traditions, many typical features of the continental legal tradition still hold in the Czech Republic. Written sources of law remain the primary and dominant sources of law, including the highest—constitutional—level of the legal system. However, unwritten law, especially unwritten legal principles, have also been considered as sources of law, at least since the late-1990s (Ondˇrejek, 2020, p. 130). Even though the Czech legal system does not recognise the doctrine of precedent as formal common law does, a certain normative role of judicial decisions has been recognised, in line with the development of continental legal systems in general (responding to the

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increasing complexity of legal systems, the adoption of binding human rights catalogues in need of further interpretation, the rise of constitutional review, the trend of the internationalisation and Europeanisation of law, etc.) (Bobek et al., 2013, pp. 28–39). A crucial factor in recognising the status of general legal and constitutional principles in the Czech legal system as well as the gradual acceptance of the abovementioned normative role of judicial decisions has been the case law of the Constitutional Court (Ústavní soud). The court adopted a series of seminal judgements in which it asserted the doctrine of the substantive law-based state (substantive Rechtsstaat —a state governed by law which conforms not only to formal requirements for its adoption, but which adheres to basic constitutional values of the state as well) and value discontinuity with the previous pre-1989 legal regime (Pl. ÚS 19/ 93). The court explicitly recognised that ‘fundamental legal principles and conventions’ form part of the Czech legal system, including its constitutional law (Pl. ÚS 33/97). The latter case was the first one mentioning ‘conventions’, alongside unwritten legal principles, in the decisions of the Constitutional Court. The legal opinion on the position of unwritten legal principles became a matter of debate in legal academia, especially due to the risk of their indeterminacy and abuse (Pavlíˇcek et al., 2011, pp. 359–360) as well as the lack of their explicit approval by parliament. Despite these controversies, the Constitutional Court’s recognition of even employing unwritten legal principles has already found a firm place in constitutional doctrine (e.g., Filip, 2011, pp. 129–132). It seems that the gradual acceptance of unwritten legal principles largely followed from the ‘internalisation’ of the idea of substantive law-based state by legal scholars because it is inextricably connected to viewing the legal system as a system of values as well. The fundamental constitutional framework of the Czech Republic is its poly-legal and rigid constitution: a set of constitutional statutes forming the so-called ‘Constitutional Order’ (the Czech version of bloc de constitutionnalité). Its components are enumerated in Art. 112, para. 1 of the Constitution of the Czech Republic (CCR). Although all parts of the ‘Constitutional Order’ nominally have the highest legal force, the main governmental features of the constitutional system are substantively found in the constitution and the Charter of Fundamental Rights and Freedoms. The constitution includes an ‘Eternity Clause’ in Art. 9, para. 2. Unlike Art. 79, para. 3 of the German Basic Law, for example, Art. 9, para. 2 CCR does not specifically enumerate entrenched principles of

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the constitutional system, but it proclaims ‘the essential requirements of the democratic law-based state’ as unchangeable. These ‘essential requirements’ thus have ‘supra-constitutional’ value in the current constitutional system.18 The main constitutional amendment rules are contained in Art. 9, para. 1 CCR (which stipulates that the ‘Constitutional Order’ can be changed or amended by constitutional statutes), in the Eternity Clause (Art. 9, para. 2 CCR), and in Art. 36, para. 4 CCR, which necessitates the approval of a constitutional statute by qualified constitutional majorities in both chambers of the Czech parliament (the Chamber of Deputies and the Senate). The possibility and occurrence of informal constitutional amendments (change in the sense of the German Verfassungwandel ), i.e., ‘a change in the contents of constitutional norms, without the text of the constitution changing on its face’ (Filip, 2011, p. 78), are also recognised in legal academia (Filip, 2011, pp. 78–79; Holländer, 2003, p. 109; Kindlová, 2018, pp. 520–522; Kysela, 2019, pp. 51–69). Such changes can take various forms (especially changing the powers of constitutional bodies because of entry into the EU or changes effected via the case law of the highest courts). The impact of certain actual practices of constitutional authorities upon the interpretation of written constitutional rules is also studied and accepted, and many of these practical examples concern the position of the president. For instance, the president does not sign statutes to which the presidential veto was applied but was overridden by the Chamber of Deputies; this practice probably contravenes the Constitution’s Art. 51, which states that ‘adopted statutes are signed by … the President of the Republic’ because such statutes lack a presidential signature. According to some commentators, this practice has the features of a constitutional convention (Koudelka, 2012, p. 227; for details see also Sect. 4.1.2 of this book). This is exactly the area in which the position of 18 The legal impact of the Eternity Clause was at the centre of several of the most important cases decided by the Constitutional Court. The court was ready to enforce its legal effect even against parliament acting in its constitution-giving competence. In ruling Pl. ÚS 36/01, the court asserted that no constitutional amendment can be construed in a way diminishing the already attained procedural protection of fundamental rights and effectively included human rights treaties into the ‘Constitutional Order’ (despite the text of Art. 112, para. 1 CCR, which does not mention any treaties). Even more controversial was the ruling in the Melˇcák case (Pl. ÚS 27/09) in which the Constitutional Court asserted its own power to review and strike down constitutional statutes.

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constitutional conventions in the Czech constitutional system and their relationship to other types of constitutional/political practices is of crucial importance since it directly impacts the possibilities of modifying the system without a formal constitutional amendment and thus potentially (and significantly) changes the ‘rules of the game’ among constitutional/ political actors. The role of legal doctrine in explaining and construing legal rules and principles is recognised. The opinions of the legal doctrine are not considered formally binding but may have an important interpretative force. In legal philosophy, one can find the opinion that ‘generally recognised conclusions of legal science’, like settled judicial case law, should be considered a part of law even though it is furthermore accentuated that its normative force must be assessed against the wider institutional framework of the legal system (Ondˇrejek, 2020, pp. 139–140). The Czech Constitutional Court has referred to both domestic and foreign constitutional doctrine, which has played an important, albeit subsidiary, interpretative role in the court’s decision-making, not dissimilar to the role of legal treatises in contemporary common law systems. The writings of legal scholars provide the most information on the concept of constitutional conventions in the Czech Republic. A major impetus in academic research into this concept was the aforementioned Pl. ÚS 33/97 judgement of the Constitutional Court, which explicitly mentioned the constitutional relevance of the concept for the first time (alongside unwritten legal principles). The concept received even greater attention after the Constitutional Court’s Pl. ÚS 14/01 judgement concerning the competences of the president in appointing the chair and vice-chairs of the Bank Board of the Czech National Bank (for details see Sect. 4.1.1 of this book). In both cases, the court either referred to German constitutional theory or practice, always in order to support its own legal opinion on the importance of unwritten sources of the constitution (the inspiration taken from German constitutional jurisprudence has been a typical feature in the Czech Constitutional Court’s case law). In the first case, the application of general principles of time-limits applicable in constitutional matters in Germany was cited; in the second one, the court mentioned the acceptance of a constitutional convention in dealings between the German Bundestag (the parliament of the Federal Republic of Germany) and Bundesrat (the federal council of the Federal Republic of Germany) by the German Bundesverfassungsgericht ’s (Federal Constitutional Court ) judgement BVerfGE 72, 189.

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Judgements by the Czech Constitutional Court concerning the concept of constitutional conventions related to the president are discussed at length in Chapter 5 of this book. For now, it suffices to say that the Constitutional Court supported its ruling via ‘a gradually developed constitutional convention’ in the 2001 case (Pl. ÚS 14/01). The court also claimed that constitutional conventions have ‘great importance’ in that they ‘fill in space among a terse expression of constitutional principles’ (Pl. ÚS 14/01; for a detailed debate, see also Jirásková & Suchánek, 2007, pp. 193–209). The following paragraphs will focus on how the concept of constitutional convention is dealt with in Czech (and, indeed, also Czechoslovak) legal scholarship. Czech Scholarship on Constitutional Conventions The concept of constitutional conventions is far from unknown to current Czech scholars, and it was employed in earlier academic literature too. Indeed, as early as 1917, Czech constitutional expert Bohumil Baxa considered constitutional conventions as non-legal rules that cannot be enforced by the courts. Baxa approached conventions as flexible rules that play a positive role in filling gaps in legislation which need not be amended so often (Baxa, 1917, p. 40). Next, 3 decades later, another Czech scholar, Zdenˇek Neubauer, debated constitutional conventions in a similar way (Neubauer, 1947, pp. 200–206). Even though neither Baxa nor Neubauer explicitly referred to the English literature, their approach resembled the basis of the Anglo-Saxon understanding of the concept. The academic literature published after the end of the era of the communist system of government (1948–1989) mentions the term constitutional convention frequently. Scholars are well aware of the Anglo-Saxon scholarship, and the literature frequently refers to English writers. The scholarship comprises studies on Czech constitutional law (e.g., Filip, 2003, pp. 57, 262–263; Klíma, 1995, p. 65; Klíma et al., 2005a, p. 80; 2005b, pp. 339–340; Kysela, 2008a, 2014; Pavlíˇcek et al., 2001, p. 134; 2015, pp. 359–360; Wintr, 2018; Wintr et al., 2016), comparative constitutional law (Balaš et al., 2011; Klokoˇcka, 1996, pp. 46, 117), and legal history (Seltenreich et al., 2010; Seltenreich & Kuklík, 2011). The major problem of Czech scholarship is that the theme of constitutional conventions is clearly under-researched. Reading through the literature, one can identify little scholarly interest in the issue on the whole. Constitutional conventions are usually mentioned as one of many

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issues in voluminous textbooks on Czech constitutional and comparative law. Conventions are not debated at length. Only a few texts have sought to address the issue in a more comprehensive way, but these still have an introductory character (e.g., Kysela, 2008a, 2014). Only rarely have studies analysed the concept in depth (Kindlová, 2008; Píša, 2014). Also, the scholarly definition of the concept remains unclear, not only because of the varying terminology but also because scholars usually provide rather vague definitions of the concept, not to speak of an operational definition.19 Whereas some scholars usually talk about 2 defining features of conventions—that are likewise traditionally understood as conditions for the rise of customs in both national and international law— usus longaevus (i.e., the long-term usage) and opinio juris/necessitatis (whether actors generally recognise, respect, and comply with the rules) (e.g., Gerloch, 2004, 2017, p. 86; for a debate, see Giba, 2020b; Neumann, 2019; Wagnerová, 2013), some other authors regard constitutional conventions as any regular pattern of constitutional actors’ behaviour not directly and explicitly prescribed by the constitution (cf., Sládeˇcek et al., 2016). The scholarship is also plagued by a variety of terms labelling constitutional conventions. Although most texts use the term constitutional conventions (ústavní zvyklosti), some texts refer to ‘political conventions’ (politické zvyklosti) (Klíma et al., 2005a, p. 80; cf., Klíma et al., 2005b, pp. 339–340) while some texts talk about customs (obyˇceje) that are distinguished from ‘parliamentary conventions’ (parlamentní zvyklosti) (Filip, 2003, pp. 57, 262–263), and yet another group of scholars interchangeably uses both conventions and customs (Pavlíˇcek et al., 2015, p. 839). Moreover, some authors differentiate constitutional conventions from customs. Legal customs are considered as sources of law as they are enforced and their breach is sanctioned by the state (e.g., Gerloch, 2004, pp. 80–88; 2017, p. 86). However, some other authors use both terms synonymously (Sládeˇcek et al., 2007, p. 69). On the one hand, this gap is excusable as the Czech Republic is a younger constitutional system in which the potential of constitutional conventions emerging is naturally smaller than in traditional, older constitutional democracies. Also, the tradition of legal positivism is strong. On the other hand, some 3 decades have elapsed since the fall of communist 19 Some studies do not use the term explicitly but operate with it implicitly in their argumentation (e.g., Filip, 2000).

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dictatorships in the region, and this period of democratic development has created somewhat of a breeding ground for constitutional conventions, which is evident from more recent literature. When it comes to particular issues and areas in which constitutional conventions are debated, the literature is usually concerned with the concept and definition of constitutional conventions. Very often, the texts provide examples of constitutional conventions from Commonwealth countries. As for the substantive areas in which constitutional conventions are discussed, various scholarly pieces mostly deal with the concept of constitutional conventions as such. Some others provide selective examples characteristic for Commonwealth countries. After all, it seems that AngloSaxon scholarship has clearly influenced the Czech understanding of the concept (e.g., Kindlová, 2008). It seems that the reason behind this influence may be relatively easy access to voluminous English-language literary and judicial resources on the subject for Czech scholars and also perhaps the rather intuitively perceived connection of constitutional conventions to primarily uncodified constitutions (the UK) or constitutions of other common law countries (e.g., Canada, Australia). This is an interesting point suggesting that these factors were so strong that they prevailed over potential German inspiration, to which the Czech Constitutional Court referred in its first and most important ‘conventions cases’. Finally, some other works discuss examples of constitutional conventions relevant to the Czech constitutional system. Some constitutional conventions were identified in relation to the work of parliament.20 Other conventions apply to the government.21 Scholars have also studied conventions in which the president is involved, and which are of the utmost importance for this book. In the following account, we only briefly present a sample of rules that might be

20 The automatic adjourning of parliamentary sessions on the basis of a request made by chiefs of parliamentary party clubs, although standing orders assume voting; sending senators to the Chamber of Deputies, where the senators explain why the Senate has rejected or amended bills passed in the Chamber of Deputies (Kysela, 2008a, p. 135). Some conventions might have emerged in the Chamber of Deputies regarding the distribution of seats among parliamentary parties in the presidency of the chamber and the distribution of seats on the committees. 21 For example, a newly appointed cabinet submits its government policy declaration to the Chamber of Deputies. It is assumed that the declaration is important for the Chamber of Deputies to assess whether the cabinet shall be granted confidence or not (cf., Filip, 2011, p. 233; Pavlíˇcek et al., 2015, p. 901).

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discussed in terms of the concept of constitutional conventions (as well as practices that are sometimes regarded as conventions); these are further analysed and debated in Chapter 4. The Czech constitutional provisions regulating government formation are very brief and provide rather broad space for the president to manoeuvre. This fact has led to a number of controversies, with presidents mostly having been criticised for their role in government formations. There have been debates as to who should be appointed as the new prime minister by the president. Should s/he be the leader and/or representative of the largest parliamentary party? Should s/he be the one who can command a majority in the Chamber of Deputies (a chamber of the Czech Parliament)? Even more importantly, is there a convention where the president respects the majority in the Chamber of Deputies in the process of forming a government? (see Bahýlová et al., 2010, p. 840; Kysela, 2008b, p. 247; Pavlíˇcek et al., 2015, pp. 864–865; Šimíˇcek, 2003, p. 163; Sládeˇcek et al., 2016, pp. 597– 598; Wintr, 2018, p. 92). Furthermore, there is also the question as to whether the role of the president should be different in different situations: are there specific rules for government formation directly following the election to the Chamber of Deputies and other rules for the formation of a government during the term of office of the Chamber of Deputies? (Píša, 2014). Another debate that serves as a basis for another convention is related to the practice of ‘formateur’22 (e.g., Jiˇcínský, 2008; Pavlíˇcek et al., 2015, p. 885; Šimíˇcek, 2003, pp. 162–163). Finally, scholars have debated a very striking practice that has surprisingly been respected and followed by constitutional actors: having 2 prime ministers at the same time for a couple of days, or even weeks (for details, see Chapter 4; see also Kysela, 2008a, p. 136; Šimíˇcek, 2003; Vanˇca, 2018). Some constitutional experts have been highly critical of this convention (Gerloch et al., 1999, p. 193; Kysela, 2008a, pp. 247–248), and some scholars have even regarded it as legally unacceptable (Pavlíˇcek & Hˇrebejk, 1998, p. 248; Sládeˇcek et al., 2016, pp. 688–689). Another issue that has given rise

22 The terms ‘informateur’ and ‘formateur’ are borrowed from Belgium and the Netherlands. Given the large difficulties in forming a viable cabinet in the Dutch postwar period, where ‘formateurs’ usually failed to form a cabinet on their first attempt, the monarch resorted to authorising an ‘informateur’ first before formally appointing a new prime minister. As his title implies, the duty of the ‘informateur’ was to inform the monarch ‘as to the viability of various options left open by the election outcome and to advise her on whom to appoint’ (see Andeweg et al., 1980, p. 224).

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to a convention is the prevailing interpretation of the constitution stipulating that the resignation of the prime minister equals the resignation of the entire government (e.g., Kysela, 2008a, p. 136; Pavlíˇcek et al., 2015, p. 866; Wintr & Kysela, 2017), although some scholars opposed this interpretation (Filip, 2005, pp. 28–29; cf., Šimíˇcek, 2003, p. 166). Overall, there are 2 forces contributing to the rise of presidential constitutional conventions in the Czech Republic. Firstly, these are gaps in the constitution, and, secondly, it is an informal strength of the head of state. Importantly, no other institution is affected by the 2 conditions in a similar scope, which makes the president a central point of studying constitutional conventions in the country. In fact, even the summary of the existing knowledge demonstrates that the vast majority of constitutional conventions in the country relate to the position of the head of state. Still, a systematic analysis of the phenomenon in the Czech Republic has been missing so far, which proves the importance of the analysis of presidential constitutional conventions in the country presented in this book. 2.3.2

Slovakia

Historical Legal Background Due to the common history of Slovakia and the Czech Republic during the existence of Czechoslovakia,23 it is possible to refer here to the relevant paragraphs of the ‘Historical Legal Background’ in the Subchapter 2.3.1 on the Czech Republic. Legal and Constitutional Context of Slovakia Like other countries in the region, the Slovak legal system is based on the continental legal tradition, which means that written law, first and foremost generally binding legal regulations, form the cornerstone of the legal system. The debate on the status of unwritten legal sources has primarily focused on the normative position of judicial decisions (Drgonec, 2019, p. 31). The change in legal thinking, which has opened the door to the gradual recognition of the possibility of unwritten sources of law, was 23 The Czechoslovak state existed from 1918 through 1992. However, following the 1938 Munich Treaty and the 1939 rise of the Slovak Republic as well as the Protectorate of Bohemia and Moravia (both controlled by Nazi Germany), the Czechoslovak state was subverted and restored only in 1945.

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inter alia due to the application of the doctrine of substantive law-based state in the interpretation of legal norms (Drgonec, 2019, p. 51), which makes a parallel to the Czech experience (Štiavnický & Steuer, 2020, p. 189). The basic constitutional framework of the legal system is set out in the Constitution of the Slovak Republic (CSR), adopted in September 1992. The constitution can be amended relatively easily because threefifths of all members of the unicameral Slovak parliament (the National Council of the Slovak Republic) can adopt a constitutional amendment or even a new constitution without the participation of any other constitutional body or the people. Through the same procedure, parliament can also pass free-standing constitutional statutes (indirect amendments of the constitution) or ad hoc constitutional statutes, containing onetime regulations diverting from the text of the constitution and usually used for shortening the running electoral period of elected offices (§§ 84, para. 4 and 86a of the CSR). The latter practice of constitutional amendments has been subject to some severe criticism in academia (e.g., Balog, 2007; Drgonec, 2019, pp. 8–20; Prusák, 2005, pp. 136–141). Overall, it can be concluded that, despite the formal rigidity of the Slovak constitution, it is in fact rather flexible and considered one of the most malleable ˇ 2020 referring to Tsebelis, constitutions in the democratic world (Lálik, 2018). Unlike its Czech counterpart, which protects the essential requirements of the democratic law-based state, the Slovak constitution does not contain a version of the ‘Eternity Clause’. Especially when it comes to criticisms regarding the wide array of ways in which the constitution has been amended and being under the influence of comparative constitutional law (including the Czech Constitutional Court’s Pl. ÚS 27/09 Melˇcák case), the debate concerning the potential existence of an implied entrenched ‘substantive core’ of the constitution, i.e., of the very crucial unamendable principles of the entire constitutional system, has taken place since the 2010s (e.g., Balog, 2014; Drgonec, 2018a, pp. 65–83; Procházka, 2011). The debate followed the gradual recognition of implied (unwritten) constitutional norms accompanying the text of the constitution in the case law of the Slovak Constitutional Court (Ústavný súd) (e.g., I. ÚS 74/93, PL. ÚS 16/95, I. ÚS 10/98). In 2014, the court referred to the principles of a democratic and law-based state as forming the ‘substantive core’

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of the Slovak constitution, forming the ‘crucial (constitutional) constitutive values’ of the constitutional system that are ‘untouchable’ (PL. ÚS 7/ 2017, para. 121). The doctrine of the substantive core was strengthened by the court in its seminal PL. ÚS 21/2014 judgement; adopted in 2019, the court not only affirmed the existence of the implied substantive core but also asserted its competence to review the constitutionality of adopted constitutional statutes regarding their compliance with this core (PL. ÚS ˇ 2020). However, the court also noted that a consti21/2014) (Lálík, tutional amendment approved in a referendum would not be subject to review (PL. ÚS 21/2014, para. 177). This development notwithstanding, further recognition of the implied substantive core doctrine, protected by the power of the Constitutional Court to strike down unconstitutional constitutional acts, has been in legal limbo since late 2020. The Slovak parliament responded to the court’s ruling by amending the constitution, which now proclaims that the Constitutional Court ‘does not decide on the compatibility of a constitutional statute with the Constitution’ (Art. 125, para 4 of the CSR). The amendment has been submitted for review by the Constitutional Court. The specific Slovak constitutional development characterised by multiple constitutional amendments (see Chapter 3) has been viewed as problematic because of the risk the various amendments create for the integrity of the entire constitutional system based on the Slovak constitution (Procházka, 2018). At the same time, the possibilities and risks of informal constitutional changes resulting from political practice of constitutional bodies have not escaped the attention of Slovak scholars either, which is directly connected to the issue of whether constitutional conventions exist in Slovakia and what their position in the constitutional system is (e.g., Drgonec, 2019, p. 70; Kanárik, 2009). The Constitutional Court occasionally referred to constitutional conventions in its case law and claims based on the need to allegedly follow a settled practice or ‘constitutional traditions’, which is a tactic appearing in several disputes it has resolved. The cases indicate that the court is prepared to use arguments of longstanding practices as factors influencing the interpretation of the Slovak constitution (e.g., PL. ÚS 95/2011). In judgement I. ÚS 397/2014, the constitutional conventions were mentioned as a possible limit on the discretionary powers of the president. In judgement I. ÚS 575/2016, the court explicitly stated that the construction of the constitution, which had been supported by a

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longstanding and yet to be challenged constitutional convention, cannot be put into doubt by means of some ‘purposely-built misinterpretation’. Slovak Scholarship on Constitutional Conventions Besides the Constitutional Court’s cases referring to constitutional conventions (which will be studied in greater detail in Chapter 5), the most important debates on the position of constitutional conventions in Slovakia appear in legal scholarship. Although the legal doctrine is not considered to be formally binding, its impact on the interpretation of legal—including constitutional—norms is beyond question, and even the Constitutional Court often refers to doctrinal opinions (Drgonec, 2019, p. 100). The earliest remarks on constitutional conventions were already made in late 1990s (e.g., Prusák, 1999, p. 198), but a more intensive and fruitful debate has especially been underway in recent years (e.g., Giba, 2020a; Guniˇc, 2021; Káˇcer, 2018, 2022; Neumann, 2019, 2021; Orosz & Volˇcko, 2013; cf., Drgonec, 2018a, 2019; 66–72). Typically, Slovak scholarship has in general been quite reluctant to recognise conventions as a source of law (e.g., Prusák, 1999, p. 198; cf., Bröstl, 1999, p. 62; Cibulka, 2008), although some (mostly younger generation) authors attribute a much stronger and influential role to conventions than earlier scholarship was willing to concede (see Giba, 2020a; Káˇcer, 2018; Neumann, 2019; cf., Drgonec, 2018a; Krošlák et al., 2016, p. 59). Moreover, Slovak scholars remind us of the fact that the Hungaryoriginated24 customary law was in force in Slovakia until 1950 (Káˇcer, 2018, p. 555; Prusák, 2001, p. 198),25 which indicates that non-written rules have some (even if interrupted) tradition. One can also observe the influence of the Anglo-Saxon understanding of conventions, although its transferability and applicability in the Slovak context is questioned at the same time (e.g., Káˇcer, 2018, pp. 562–563; Neumann, 2019; Orosz & Volˇcko, 2013, p. 2).26

24 Slovakia was a part of Hungary until 1918. 25 Until 1950, for example, civil law was significantly characterised by custom law (Luby,

1939). 26 Marián Giba, who is one of the most vociferous proponents of the concept of constitutional conventions, claims that ‘unwritten constitutional law’ draws heavily on the French scholarship concerned with constitutional conventions (Giba, 2020a).

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Another external influence, which seems to be relatively strong, is Czech academic literature and jurisprudence. Indeed, Slovak scholars also often refer to Czech scholarship on constitutional conventions as well as to decisions issued by the Czech Constitutional Court, which shows that Czech academic debates and jurisprudence have influenced Slovak scholarship (e.g., Giba et al., 2019, p. 87; Káˇcer, 2018, pp. 557–559; Krošlák et al., 2016, p. 59; Neumann, 2019, p. 4; Orosz & Volˇcko, 2013, p. 2). On the whole, key observations and conclusions formulated about Czech literature on constitutional conventions are also applicable to the Slovak case. Although a couple of texts explicitly devoted to the theme have been published over the last decade, the topic has yet to be researched extensively and remains rather neglected (cf., Drgonec, 2015, p. 119). At least indirectly, this can be derived from 3 findings. First, the academic literature is highly limited, and some texts discussing the Slovak constitutional system are even completely silent about constitutional conventions. Typically, even if conventions are mentioned in scholarly literature, scholars only pay a little attention to the concept, which is often used without any definition or explanation (e.g., Bröstl, 2010, pp. 83, 267, 294; Prusák, 2001, p. 135). However, as stated above, more recent texts to which the concept of constitutional conventions became central have been published. It can be said that a more extensive debate was triggered by a single academic paper published by L. Orosz and V. Volˇcko in 2013 (Orosz & Volˇcko, 2013). It is perhaps the first Slovak text that is explicitly focused on constitutional conventions as a central concept. Since then, several papers have engaged in this scholarly debate (e.g., Guniˇc, 2021; Káˇcer, 2018, 2022; Neumann, 2019; see also Drgonec, 2015, pp. 118–122), which has also moved beyond the academic sphere and entered public debate and politics (e.g., Giba, 2018, 2020b; Mazák, 2018).27 Recent scholarship implicitly or explicitly asserts that constitutional conventions are relevant to every constitutional system (irrespective of whether they belong to the continental or Anglo-Saxon legal tradition) (e.g., Giba, 2020a). Moreover, conventions are relevant not only in countries with a solid political and legal culture which is based on ideas, 27 These texts were published in daily presses and entered political debates on particular events of Slovak politics, notably the 2018 political crisis triggered by the murder of a journalist, Ján Kuciak (for details, see Mrvová & Turˇcek, 2018), and also the 2020 government formation process (Giba, 2020b).

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principles, and values crucial for democracy as well as the rule of law; they also matter in transition countries (i.e., those countries that transformed themselves from non-democratic to democratic countries) (Orosz & Volˇcko, 2013, p. 4). Generally speaking, scholars tend to agree that constitutional conventions (the terminology varies—see below) are rules important to the Slovak constitutional system and that the rules should be purposely fostered (cf., Drgonec, 2015, p. 119; Neumann, 2019; Orosz & Volˇcko, 2013). Second, although relevant both to political science and constitutional law, the concept is discussed almost exclusively by experts from the latter discipline, whereas the former tends to ignore the term. Third, the terminology varies. Next to the term constitutional conventions, the literature uses other terms: ‘constitutional tradition’ (ústavná tradícia) (e.g., Balog, 2014, p. 152; Drgonec, 2015, p. 119), ‘constitutional custom’ (ústavná obyˇcaj ) (e.g., Orosz & Volˇcko, 2013), and ‘legal custom’ (právna obyˇcaj ) (e.g., Bröstl, 2013, p. 61; Procházka & Káˇcer, 2013, p. 124). The relationship of these terms to the term ‘constitutional convention’ remains somewhat unclear, partly because authors sometimes use more than one term (e.g., Káˇcer, 2018; Prusák, 2001) and leave these terms (typically constitutional convention) without explanation or definition.28 Also, scholars disagree whether these terms can be used as synonyms or not. On the one hand, some argue that the terms overlap, with legal custom being a more general term whereas constitutional convention is merely a type of it, e.g., a custom that regulates the behaviour of constitutional actors (Káˇcer, 2018). Orosz and Volˇcko argue that constitutional custom and constitutional conventions are synonymous (Orosz & Volˇcko, 2013; see also Giba, 2020b).29 On the other hand, Ján Drgonec claims that, despite some commonalities, both terms (constitutional convention and constitutional custom) should be strictly differentiated (Drgonec, 2018a; Guniˇc, 2021, p. 452).30

28 Whereas the legal customs are described more in detail, constitutional conventions are

used rather as contextual terms without further comments or explanations (e.g., Prusák, 2001). 29 As for other terms, Ján Drgonec claims that ‘constitutional tradition’ and ‘legal custom’ are basically synonymous (Drgonec, 2015, p. 119). 30 One of the differences is that the constitutional customs emerge on the basis of a long-term development, whereas constitutional convention may arise almost instantly.

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How do Slovak scholars understand the term? To begin with, 2 conditions (usus longaevus and opinio iuris )31 that are commonly used as defining features of legal customs (cf., Kluˇcka, 2011, p. 114) are likewise applied to constitutional conventions.32 In other words, only those practices regarding the behaviour of constitutional practice and meeting these 2 conditions allow us to label the practices as a constitutional convention (Káˇcer, 2018, p. 560; see also Giba, 2020b). Given the relatively short time that has elapsed since the Slovak Republic was proclaimed an independent sovereign state, scholars taking account of the time question (usus longaevus ) implicitly or explicitly talk about ‘emerging’ conventions (e.g.,Giba, 2020b; Orosz & Volˇcko, 2013). One of the most recent and explicit reflections of constitutional conventions was offered by Marian Giba, although his understanding is not widely shared. On the one hand, he claims that constitutional conventions are unwritten constitutional norms. He claims that since these are constitutional norms, they have the same legal power as constitutional texts. On the other hand, he sets relatively strict conditions to define constitutional conventions. Giba claims that 2 major requirements should be met in order to speak about a constitutional convention: a material/practical (i.e., corpus ) one and a non-material/psychological (i.e., animus ) one. The material requirement consists of 4 conditions: clarity (it is clear what the practice looks like), repetition (the practice is repeatedly followed), consolidation (the practice is executed in the same way), and a long-term character of the practice. The latter requirement resides in a general conviction that the practice is binding (opinio iuris ), which means that constitutional actors respect and follow the practice in principle. The best way to solidify the practice is for actors to explicitly speak about the practice as a constitutional convention and for them to claim that they might have behaved differently if there had been no such convention,

Also, the breach of the former can be sanctioned by the state, the breach of the latter cannot be sanctioned by the state (Guniˇc, 2021, p. 455). 31 The former term basically refers to a long-term usage of the rule; the latter term is connected to the general consensus of constitutional actors who recognise and comply with the rule. Both terms are debated in detail by J. Neumann (2019, pp. 3–10; see also Drgonec, 2018a; Guniˇc, 2021, p. 456). 32 Again, some others apply the 2 conditions (usus longaevus and opinio iuris/ necessitatis ) only to the legal/constitutional custom, whereas constitutional convention is understood in a different way (Drgonec, 2018a; Guniˇc, 2021, p. 456).

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but with respect to the convention they followed it although respecting the convention may not have been beneficial to them in political terms (Giba, 2020b; for the criteria, see also Giba, 2020a, p. 321; Neumann, 2019; Orosz & Volˇcko, 2013, pp. 3–6). Fourth, there has been a debate on whether constitutional conventions are sources of law in Slovakia. Whereas some scholars argue that conventions are (or at least should be) a source of law (e.g., Giba, 2020a, p. 320; Guniˇc, 2021, p. 454; Káˇcer, 2018, p. 554; Krošlák et al., 2016, p. 59),33 other authors do not include them among the sources of law (e.g., Palúš & Somorová, 2011, p. 17; Posluch & Cibulka, 2008, pp. 134– 136; Svák et al., 2008, pp. 141–171).34 Some scholars claim that only some conventions (referred to as legal customs) may qualify to become a source of law. To be more specific, 2 conditions—mentioned in the previous paragraphs—should be met: a legal custom must be followed and respected for a long time (usus longaevus ), and there should be a general conviction that the custom is biding (opinion necessitates ) (Bröstl, 2013, p. 61; Drgonec, 2018a; Orosz & Volˇcko, 2013, p. 2; see also Guniˇc, 2021, p. 455). Finally, scholars disagree as to how conventions relate to the constitution. Krošlák and his colleagues claim that conventions fill in blank spaces35 in the constitutional system and formulate rules of behaviour praeter constitutionem, whereby ‘stable rules of political practice’ (i.e., rules that are not constitutional conventions) may formulate rules of behaviour beyond the constitutional framework and exist extra constitutionem or even contra constitutionem (Krošlák et al., 2016, pp. 59–60; cf., Orosz & Volˇcko, 2013, p. 6). On the other hand, Marek Káˇcer and other scholars claim that there might exist constitutional conventions

33 This view is also shared by the Slovak Constitutional Court (ÚS 571/2014). Still, Giba et al. (2019, p. 87) claim that constitutional conventions ‘are not a formal source of law’. 34 For example, Posluch and Cibulka write that the ‘working of the constitutional system is significantly affected by constitutional conventions, although they are not a formal source of law’ (Posluch & Cibulka, 2008, p. 136). 35 Here the authors refer to the judgement of the Czech Constitutional Court (Pl. ÚS 14/01), which says that constitutional conventions have great importance in a constitutional state in that ‘they compose the Constitution into a functional whole and fill the space between the plain expression of the Constitution, principles and institutions, and the variability of constitutional situations’.

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that contradict constitutional texts (Giba, 2020a, p. 320; Káˇcer, 2018, p. 558).36 Moving beyond conceptual issues, scholars have also discussed a couple of practices that Slovak scholars consider constitutional conventions. Perhaps the most solid convention is the practice whereby the president commissions a political leader to start negotiations with parliamentary political parties to establish a new government. The convention has been that the person who is first commissioned be a representative of the largest parliamentary party. If this person fails to reach an agreement on a new government, the president shall commission another person, typically the representative of the second largest party, to do so (e.g., Giba, 2020a, pp. 339–341; Giba et al., 2019, pp. 238–241; Krošlák et al., 2016, p. 60; Neumann, 2019, p. 6; Orosz & Volˇcko, 2013, p. 8). This convention is subject to a thorough analysis in Chapter 4. Another convention results from the fact that the Slovak constitution includes no express provision regulating the way the constitution is amended but only a more general provision stating inter alia that the adoption of a constitution, of constitutional changes, and of constitutional statutes requires the approval of at least three-fifths of deputies (Art. 84, para. 4 in connection to Art. 86(a) of the CSR). Hence, scholars have talked about a convention where the constitution is amended through a constitutional statute (cf., Balog, 2014, p. 152; Giba, 2020a, p. 339; Krošlák et al., 2016, p. 61; Orosz, 2013.).37 This practice dates back to the early 1990s, when the Slovak constitution was created and subsequently amended (Guniˇc, 2021, p. 457; see also Orosz & Volˇcko, 2013, pp. 6–7). Whereas this convention is generally perceived as legitimate and correct, scholars are critical of another practice that has also turned into a constitutional convention whereby the parliament changes the constitution indirectly by constitutional statutes that are sometimes doubtful

36 To support his argument, Káˇcer refers to several judges of the Czech Constitutional Court and their dissenting opinion regarding the 2001 judgement of the Czech Constitutional Court (Pl. ÚS 14/01). 37 Orosz and Volˇcko (2013, pp. 6–7) show that next to direct amendments to the constitution, there has been a rather controversial practice of changing the constitution indirectly—by separate constitutional acts that indirectly amended the constitution. This practice has been criticised by scholars although it has not been openly contraconstitutional.

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in terms of conformity with the constitution.38 In particular, single-use constitutional statutes that change the constitution only for a specific occasion that does not repeat are criticised by scholars who argue that these statutes at least ‘by-pass’ the constitutional text (Orosz & Volˇcko, 2013, p. 7; see also Giba et al., 2019, pp. 235–236; Guniˇc, 2021, p. 458) or even contradict the constitution (Balog, 2011, p. 81). A good case in point is how a political crisis following a fall of the government was solved. Following either a collapse or defeat of incumbent coalition cabinets in 1994, 2006, and 2011, a special constitutional amendment was passed to shorten the parliamentary term of office so that early elections could be called.39 In the Czech Republic, where this type of singleuse constitutional statutes gained popularity among politicians given the rigid provision to call early elections, this practice was disallowed by the Constitutional Court in 2009 (Pl. ÚS 27/09). Finally, next to the abovementioned emerging constitutional conventions, we deem it necessary to point out that scholars repeatedly call for other conventions to be established to make the working of the constitutional system more predictable and less conflictual.40 A good example is a desirable rule which would allow opposition parties in the National Council to nominate the Chairman of the Supreme Audit Office, which is elected by the National Council (Orosz & Volˇcko, 2013, p. 8; see also Krošlák et al., 2016, p. 61). Also, scholars sometimes mention the rule whereby chairmanship seats in the National Council are proportionally distributed among ruling and opposition parties. This also applies to the distribution of the chairmen’s seats of parliamentary committees.41 38 For example, Ján Drgonec claims that these indirect changes are ‘the most dubious

interventions’ in the Slovak constitution (Drgonec, 2018b, p. 16; see also Drgonec, 2019, p. 10). 39 For example, such a constitutional act was passed on 13th October 2011. The act contains only 2 short articles saying that ‘term office of the National Council of the Slovak Republic elected in 2010 comes to an end with elections to the National Council of the Slovak Republic. The elections to the National Council of the Slovak Republic shall be held on 10th March 2012’ (Constitutional Act No. 330/2011 Coll.). 40 This perspective is precisely in line with what M. Elliott wrote about constitutional conventions: ‘They tell us what, in fact, usually happens, what should happen, and what is likely to happen’ (Elliott, 2021). 41 This practice was partially broken in 2016 when several political parties rejected the claim by Marián Kotleba’s party (LSNS) for the representation in the parliament’s bodies,

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Hungary

Historical Legal Background The structures of the monarchical Hungarian constitutional law was very similar to the British one: a historical and uncodified constitution in which customs, customary law, conventions, and mediaeval (sometimes religious) doctrines played a crucial role (Gergely & Máthé, 2000; Szabó, 2020). Because the constitution was not enacted but evolved, and hence not every element was codified, customary law was an acknowledged source of law emerging from autonomous self-legislation (Boncz, 1877, p. 22; Ferdinandy, 1911, pp. 24–25). Although several areas of law became codified during the nineteenth century in Hungary as well, several other important ones remain uncodified (like constitutional and private law). Customary law was not enacted, but its existence was perceived by the mere fact that it was observed. It emerged from historical precedents in accordance with the general principles of law (Ferdinandy, 1911, p. 34; Szászy-Schwarz, 1912, p. 66). Customs and conventions could explain the meaning of written rules, substitute them if they did not exist, or even derogate them by applying unwritten rules instead of the written ones (Ferdinandy, 1902, pp. 103–105). These unwritten rules even determined the hierarchy and rank of norms (Ferdinandy, 1902, p. 77). Several elements of customary law were formalised if there were doubts that the informal rules would not be observed (Ferdinandy, 1902, p. 102). This old-fashioned constitutionalism ended with the Second World War. After a temporary period of democratic republicanism until 1947, the Communist Party assumed power, enacted a codified constitution of Hungary in 1949, and introduced a one-party dictatorship for 4 decades. Until the democratic transition of 1989, there was thus no meaningful and long-lasting republican tradition in Hungary to be remembered, honoured, or revitalised. The 4 decades of communist dictatorship also changed the perception and understanding of law. The communist legal system was conceived in the formalistic-textualist legal tradition and interpreted law as an instrument for exercising power; the application of law was meant to obey the black letter of the law. Due to this extremely formalistic attitude, not

because the LSNS party is generally considered an extreme right-wing party (Krošlák et al., 2016, p. 61).

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only morality but also usages and conventions were rooted out. This cast a long shadow on legal thinking in Hungary. The Legal and Constitutional Context of Hungary The constitutional reform of 1989 was hastily cobbled together during round-table talks between the communist government and the opposition, and many elements were not elaborated thoroughly. Therefore, very early on, a question emerged as to whether the gaps in the constitution might be filled and ambiguities might be clarified by customs and conventions. In 1991, some tensions arose between the government and the president regarding the role of commander-in-chief, which should have been performed by the president according to the constitution. In this way, an application for an abstract interpretation of the constitution was submitted to the Constitutional Court (Alkotmánybíróság ) in order to spell out the precise ambit of presidential powers in the constitution. The president himself argued that the ambiguities of the constitution should be clarified by conventions and memoranda between himself and the prime minister, thus expressing his support for employing constitutional conventions. The majority of the Constitutional Court rejected this idea and highlighted that it would contradict the very sense of a constitution if those who are to follow the rules of the constitution would be allowed to construct the precise content of their own obligations. The constitution was deemed to be a closed system of rules, which was to be interpreted solely by the Constitutional Court. Therefore, conventions and customary rules have no place in the Hungarian constitutional system.42 The concurring opinion of Justices Szabó and Zlinszky43 pointed out that conventions and customary rules are not completely to be ruled out, but their normativity requires continuous and undisputed observance for a longer period of time, which was logically not possible shortly after the transition. The then-constitution and the later Basic Law of 2011 have defined the sources of law, so it was understandable that the Constitutional Court decided the case in line with the German-Austrian legal tradition and basically denied any normative role of conventions or customary rules. 42 Decision of the Constitutional Court 48/1991 (IX. 26.) AB, reiterated by the decision of the Constitutional Court 50/1998. (XI. 27.) AB. 43 Decision of the Constitutional Court 48/1991 (IX. 26.) AB concurring opinion of Justices Szabó and Zlinszky.

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In doing so, the Constitutional Court determined the interpretation and role of conventions in Hungarian constitutional scholarship and politics for at least 2 decades in many respects. First, the Constitutional Court was empowered to interpret the constitution abstractly, without any existing substantial controversy warranting judicial intervention. On this point, the Constitutional Court claimed that every constitutional conflict can be resolved by a proper interpretation of the constitution, and the court is more than happy to provide the necessary guidelines. This led to a practice in which political actors sought some guidelines from the Constitutional Court. These interpretative decisions very much shaped the actual operation of the constitution in many cases in terms of informal constitutional changes (Drinóczi, 2020, pp. 76–86). Second, the Constitutional Court has never decided any actual controversies but simply gave an abstract interpretation of the rules, which surely reduced the number of possible courses of action while simultaneously leaving some room for manoeuvring. Third, precisely because the Constitutional Court did not adjudicate upon any disputes and never condemned any of the parties for acting unconstitutionally, political actors became accustomed to the fact that a good deal of political conflicts might be resolved by these authoritative interpretations, and a ‘noble lie’ arose that the constitution was a purely legal construction. Fourth, this excessively legalistic perspective of the Constitutional Court and the lacking tradition of political science in Hungary extremely constricted interest in constitutional conventions, which have received almost no attention from political scientists. Fifth, the Constitutional Court followed the German tradition and emphasised unwritten legal principles and very abstract legal values for interpreting the constitution like democracy, human dignity, and the rule of law; from these, they deduced actual rights and duties. A shining example was the interpretation of the political veto of the president. This included the question as to whether the National Assembly is obliged to discuss the reasons for a presidential veto as well as whether it can simply adopt the bill again and, in doing so, override the veto. According to the Constitutional Court, constitutional organs owe each other a duty of cooperation. Hence, the National Assembly must sincerely consider the reasons of the president and override the veto only after such a debate. This duty follows from the principle of checks and balances (which the constitution did not explicitly contain), and this principle followed from rule of law (which the constitution did contain).

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The Contextualisation of the Case Law If one accepts the reasoning of the Constitutional Court at face value, that the legal system is a closed one, it must precisely describe the powers of the governmental bodies and make predictable which behaviour is legal and which is not. This understanding might sound naive, but it needs to be understood in the post-communist context of socialist legalism, which was quite a euphemism. Legalism in Central and Eastern Europe meant that there were an array of legal provisions enacted, and the administrative bodies could consistently rely on them even though they were not there to empower the citizens. Legislation was accompanied by implementary rules, interpretative guidelines, circulars, instructions, etc., which in practice often went beyond the bounds of guidance and had a de facto legal content. They were ‘formless law’, or informal institutions which took precedence over the promulgated legislation and often undermined their effectiveness; at the end of the day, they hollowed the constitutional rights completely out. The informal rules and institutions of the communist era subverted the primacy of parliamentary legislation and questioned the existence of statute law precisely because they blurred the lines between legislative and non-legislative acts. It was clear that they needed to be rooted out, and the proper role of the Acts of Parliaments needed to be restored.44 Therefore, it would be contradictory to say that some kinds of informal practices are incompatible with the newly established constitutional order established on the rule of law, but others (such as memoranda between the president and the PM) are not. That would indeed be quarrelsome to explain and justify, so the most benevolent explanation is that the concept of the rule of law followed by the Constitutional Court is irreconcilable with the informal institutions, and, therefore, conventions and customary rules have no place in the Hungarian constitutional system.45 The decision of the Constitutional Court denying any normative role of conventions or customary rules was basically in line with the long predominant positivist German-Austrian legal tradition, and hence echoed well in Hungary and fitted into the mainly German education of the majority of the first constitutional justices (Brunner & Küpper, 2005;

44 Decision of the Constitutional Court 60/1992. (XI. 17.) AB. 45 Decision of the Constitutional Court 48/1991 (IX. 26.) AB, reiterated by the

decision of the Constitutional Court 50/1998. (XI. 27.) AB.

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Vincze et al., 2021, 479–481). The deficiencies of this understanding nonetheless became apparent quite soon. Already in 1991, it was necessary to decide a case where the black letter of the law was fairly in line with the constitution, but the judicial construction of it was not.46 With some legal innovation and by transplanting ideas from Italy, the Constitutional Court came up with the concept that the acts are to be reviewed as they are consistently applied by the courts and not as they are printed in the official journal (Sólyom, 2001, pp. 296–299). This approach (probably unwillingly) acknowledged customary law (and even desuetude) and could have addressed the question of the deviations from the legislative blueprint; regardless, it remained a one-off event, and the concept was not applied later. By doing so, only the normative design remained on the radar of the Constitutional Court, and without its interruption, several informal institutions could have been established. Modi operandi came into existence without being acknowledged or even basically perceived by the Constitutional Court. It intervened only very sporadically and only from a normative point of view: either because the applicable legal norm was so badly drafted that it hindered the democratic functioning of the state, like the resignation of the prime minister in 2004 (Vincze, 2004), or the political actors could not resolve their disagreements under the radar, and asked for an authoritative interpretation of the constitution—like the decorations for some former communist functionaries—which again happened without bothering with any conventional rules (Constitutional Court 55/2004. (XII. 13.) AB). Nonetheless, the declaration of informal rules and accords to be legally non-existing and hence non-binding can also be understood as a push for formal rules, precisely because these were the only ones that the Constitutional Court could influence. Informal rules, conventions, and memoranda of understanding could not be subject to constitutional review precisely because of their lacking normativity, so it is also a possible explanation that the Constitutional Court, or at least the president of it, pushed the institution into this direction in order to expand power, and in doing so influence and impact. To prove this account is not easy, yet it is well-known that the first Constitutional Court of Hungary was a rather activist one, and its first president, László Sólyom, described his own activity as a duty to establish and upkeep the modern constitutional

46 Decision of the Constitutional Court 57/1991 (XI. 8.) AB.

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system in an insecure political scene (Vincze, 2009, pp. 1105–1107), which at least shows some motivation to manage the democratic transition. In order to achieve this aim, and to be the cornerstone of the newly established democratic form of government, required expanding the powers of the Constitutional Court. This happened, of course, to the detriment of other branches of government, or other forms of checks and balances, including constitutional conventions, which, as informal and hence legally enforceable rules, were contrary to the ambition of the Constitutional Court. Most likely, all aforementioned factors had some influence on why constitutional conventions were declared to be contrary to the rule of law in Hungary. The positivist education and orientation of the majority of the constitutional justices determined their mind-set, which is reluctant toward informality and conventional rules. Moreover, the experienced reality of the socialist legalism showed them how informality can undermine the effectiveness of written legal rules, and it is therefore more than understandable that there was a (maybe somewhat naive) aspiration to root them out. Furthermore, the formalised norms were to be controlled and interpreted by the Constitutional Court, which enhanced the ambit of its powers; this was surely not against the wishes of its president, who wanted to shape the contours of the new constitutional order. The Illiberal Turn In 2010, the right-wing FIDESZ party47 won the parliamentary election with a two-thirds majority, enabling it to dismantle and reconstruct the constitutional system according to its own preferences and interests; this would become a showcase of democratic backsliding (cf., Bernhard, 2021; Cianetti et al., 2018; Holesch & Kyriazi, 2022). The amendment of the constitution was pretty straightforward, requiring a two-thirds majority in the National Assembly, and there are no unamendable provisions, so the landslide electoral victory created political momentum for cementing the power of that one party and its leader, Viktor Orbán.

47 The party was founded in 1988 as the Alliance of Young Democrats (Fiatal Demokraták Szövetsége) with the acronym FIDESZ. In 1995, it changed its name to Hungarian Civic Party (Magyar Polgári Párt ). In 2003, the party took its current name, FIDESZ—Hungarian Civic Union (Fidesz – Magyar Polgári Szövetség ). For the sake of brevity, we keep the acronym FIDESZ throughout the book.

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The Basic Law of 2011 and its 9 amendments are the product of unilateral constitution-making by the ruling FIDESZ and its satellite, Christian Democratic People’s Party (Kereszténydemokrata Néppárt, KDNP), serving everyday political needs and being perceived as legal tools for political ends. As such, it often lacks the stability and reliability that is necessary for a constitution to fulfil its role as the paramount law of the land. The seventh amendment added a reference in the preamble to the constitutional identity of Hungary, according to which, ‘we profess that the protection of our identity rooted in our historic constitution is a fundamental obligation of the state’. This is reinforced in the operative part of the Basic Law, with a new paragraph added to Art. R obliging all organs of the state to protect the constitutional identity of Hungary. As to whether these provisions and declarations constrain constitutional amendments is everything but clear, and the Constitutional Court has yet refused to review constitutional amendments for other reasons than procedural ones. Since the landslide victory of the FIDESZ in 2010, the whole constitutional system has been reformed. Although the newly enacted Basic Law of 2011 contains many elements of the earlier constitution and implemented a number of elements of case law (Jakab & Sonnevend, 2013; Vincze, 2012), this new constitution was a fresh start in several respects. The two-thirds parliamentary majority was able to make and unmake any laws (including the constitution itself) as well as to appoint whomever to whatever position without the consent of the minority. This of course lowered the need for seeking compromises or for respecting conventions and usages. This culminated in lacking respect for constitutional institutions and a rather instrumental approach to the law, which should work as a tool for achieving political goals. The shining example is the appointment of the new chief justice in 2020, who is on the one hand a professor of law and who gathered work experience as state attorney and constitutional justice but on the other hand has never been a sitting judge before. Although the National Council of Judges pointed out this lacking experience during the evaluation of the properness of the candidate, this was not taken into account because the black letter of the law did not require any such work experience. Interestingly, this lack of respect has not been counterbalanced by any explicit references to historical traditions in the new constitution. The constitutional instruction to interpret the Basic Law in accordance with the achievements of the historic constitution was hollowed out in terms

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of case law and did not revitalise any respect for conventions or habitual usages (Vincze, 2020). Hungarian Scholarship on Constitutional Conventions Although considerable experience was gathered during the first 2 decades of democratic constitutionalism, a robust theoretical underpinning for constitutional conventions is still painfully lacking. The overwhelming majority of published jurisprudential works suffice with a (rather approving and reinforcing) description of the case law of the Constitutional Court. Constitutional legal scholarship did not pay too much attention to practices, usages, or conventions because they were regarded to be simple facts or habits without any normative effect (Petrétei, 2013, pp. 161–162; Sólyom, 2001, pp. 296–299). In this respect, the powerful influence of the positivist legal tradition cannot be overlooked. Conventions or customary law are acknowledged by mainstream scholarship as part of and sources of the international legal order. The concept of constitutional convention is blurry and fuzzy in Hungarian constitutional law: customary law, conventions, usages, and traditions are often used as interchangeable synonyms. However, common to each of these terms is how their binding force is not acknowledged in mainstream literature. It is worth mentioning that a gap between the normative and real or actual constitution has not been examined thoroughly in legal literature; only recently has some empirical research emerged focusing on how institutions actually work (Jakab, 2021), which also engages itself with constitutional conventions and the question of how they influence the actual practice of institutions (Vincze, 2021). This had some obvious shortcomings: the formalistic scholarship became less and less critical and innovative, the constitutional law became more and more legalistic, which easily made the Constitutional Court an ideal subject to court packing. Political scientists have instead focused on practices and policies as evidence for attitudes and approaches, but they have not provided a coherent analysis of conventions either (Horváth, 2009; Kumin, 2013; Pálfi, 2020; Szentpéteri Nagy, 2005; Szomszéd, 2005). The question as to whether those may be binding and, if yes, under which circumstances is not thoroughly examined in the political sciences. The approaches were rather descriptive without conceptualising any normative power of factual behaviour or comparatively trying to identify to which pattern or model the Hungarian one is most similar (Kovács, 2009; Sári, 2002).

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Consequently, there is no clear vocabulary about what conventions in Hungary are. However, there is a distinction between customary law (szokásjog ), usages (szokás ), and conventions (konvenció): customary law is understood as a legally binding rule (which is recognised only in very exceptional cases, e.g., for the promulgation of decrees of local governments), whereby conventions are seen as politically sanctioned and not legally enforceable rules of behaviour. The exact theoretical underpinning is hence painfully missing and poorly researched. This however does not necessarily mean that conventions do not exist in Hungary. The differences between the real and the written constitution is a phenomenon also known in Hungary, and several habitual norms have been established since the democratic transition in 1989. What really lacks is a proper expression for these practices and a reliable description of their working. 2.3.4

Poland

Historical Legal Background Poland was reborn as an independent state in 1918 after the defeat of Germany and the Austrian-Hungarian monarchy in the First World War and in the context of the revolutionary situation in Russia at the time. The history of independent Rzeczpospolita (under military-bureaucratic authoritarianism since 1926) was interrupted by the events of the Second World War and its aftermath. Poland was included into the sphere of Soviet influence, and a communist dictatorship was soon established (Roszkowski, 1992). Regarding the character of the legal system up until 1989, the general tone of information regarding the development in the other 3 Central European countries is applicable to Poland as well. Law and the constitution were understood in terms of the exclusivity of written sources and were considered a revolutionary instrument of the will of the ruling class (Rozmaryn, 1961, p. 42). It should be applied in harmony with the interests of socialism and ‘people’s democratic state’. Especially during the Stalinist era, this meant that judges should go outside of the legislative text and search for the ‘true’ meaning of legislation in light of the ruling ideology (Kühn, 2005, p. 41). After the end of Stalinism, the situation began to change in Poland; despite the persistence of propaganda until the 1970–1980s, legal (judicial) culture tended to a strongly formalistic application of legal regulations without the effective use of ideological principles (with the exception of politically sensitive cases).

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Legal and Constitutional Context of Poland In line with the experiences of the other Central European countries, legislative acts are the primary source of law. However, the Polish situation is unique. In reaction to the lack of order in sources of law and the resulting scope for arbitrariness in the application of law in the communist Polish People’s Republic (Granat & Granat, 2019, p. 40), the Polish Constitution of 1997 explicitly provides for a specific catalogue of constitutionally recognised sources of law (the so-called ‘closed system of sources of law’). They are divided into generally binding sources and those which are only internally binding (for the institution which issued them and for its subordinate institutions). Art. 87 of the constitution lists the generally binding sources: the constitution, statutes, ratified international treaties, ordinances, and acts of local law. As the constitution does not define these notions, they are understood in accordance with their conceptualisation in legal doctrine and practice (Banaszak, 2014, p. 1255). The ‘closed’ nature of the system of legal sources is viewed by the Polish Constitutional Tribunal in 2 respects: first, as regards the forms of acts in which a legal regulation can be proclaimed; second, as regards the list of state authorities which are vested with the power to promulgate them (Banaszak, 2014, p. 1255). Additionally, the Polish Constitutional Tribunal confirmed that other generally binding legal sources may exist beyond the list enumerated in Art. 87, but only if they are based on specific constitutional provisions and not on the basis of statutory law (OTK ZU No. 7/1998, p. 645). This particularly concerns presidential decrees issued during a period of martial law pursuant to Art. 234 of the constitution. The list of internally binding sources in the constitution (Art. 93) is not exhaustive and may be, under certain conditions, complemented by other acts of internal legislation (OTK ZU No. 7/ 1998, p. 645; Banaszak, 2014, p. 1256, Granat & Granat, 2019, p. 41). Concerning the potential recognition of unwritten sources of the constitution, the closed system of legal sources in the text of the constitution fundamentally influences the debate. Because the constitutional text only includes norms adopted by state authorities into the catalogue of sources of law (except for international legal sources), B. Banaszak points out that it ‘in principle ignores sources of law such as natural or customary law. However, it does not exclude expressis verbis other lawmaking facts, e.g., precedents’. The same author then adds natural law and customary law into the group of other sources of law in Poland. As

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regards the former, he claims that it is recognised as a source of law but has a lower rank than the constitution. Customary law may be recognised by statutory law (Banaszak, 2014, pp. 1255, 1262). Indeed, some scholars also argue that customary law or precedents may ‘flow into the system’ (Granat & Granat, 2019, p. 41). Yet, other scholars search for a more nuanced approach (for more details, especially in the context of ‘quasi-legislative’ activities of the Constitutional Tribunal, see Czarny & 2020, p. 171). However, some other authors explicitly state Nalezinski, ´ that ‘de lege lata customary law is not part of them [sources of law]’ (Tuleja, 2019, p. 282) and thus completely rule out such a possibility. The fundamental source of Polish constitutional law is the constitution itself (Constitution of the Republic of Poland of 2 April 1997, Dzu no 79, item 483). Formally, it has been a very stable constitutional text with only 2 amendments that were not really significant in terms of their influence on the powers of constitutional bodies. One of the reasons for this formal stability of the constitution is the relatively stringent amendment process stipulated in the constitution. Its rigid character flows from Art. 235. The legislative initiative rests with at least one-fifth of deputies, the Senate, or the president. The constitution prescribes minimum periods which must be provided for parliamentary debates on the bill, which are longer in the case of bills concerning specific chapters of the constitution (I—on constitutional principles, II—on fundamental rights, and XII—on the amendment procedure). The amendment must be approved in the Sejm by a majority of no less than two-thirds of the votes with a quorum of at least half of the statutory number of deputies; in the Senate, an absolute majority in the presence of at least half of the statutory number of senators is required. The bill must first be agreed to in the Sejm and afterwards, within 60 days, by the Senate. In case of amendments concerning the abovementioned chapters of the constitution, a confirmatory national referendum can be initiated by the same subjects who have the constitutional initiative.48 Once the amendment is approved by parliament (and via the confirmatory referendum if it is called), the speaker of the Sejm presents the adopted amendment to the president for their signature, which must be given within a given period of 21 days with no right of veto. 48 An even stricter process applies to the chambers’ approval of the ratification of international agreements transferring powers of constitutional bodies to an international organisation or institution pursuant to Art. 90 of the constitution.

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The constitution does not contain an express provision on substantive limits of amendment power. However, Art. 30 of the constitution states that human dignity is inviolable, and some authors believe it to be an 2017, p. 208). unamendable provision of the constitution (Bien-Kacala, ´ Regarding informal constitutional amendments, especially during the period following 2015 when the right-wing Law and Justice party became the crucial element of the governmental system, Poland has witnessed a series of acts implementing far-reaching constitutional changes that interfere with constitutionally protected principles of the separation and balance of powers, the independence of the judiciary, the rule of law, and human rights. These changes were managed via ordinary legislative changes, i.e., without formally amending the constitution. As Granat and Granat state, ‘the Constitution … remains the supreme law, despite … being powerless in the face of the attacks of the governing majority’ (Granat & Granat, 2019, p. 225). This situation has provoked some in-depth domestic as well as international research into the nature of 2017; Bodnar & informal constitutional change in Poland (Bien-Kacala, ´ ´ 2021; Matczak, 2020; Ploszka eds., 2020; Drinóczi & Bien-Kacala, Sadurski, 2019). Polish Scholarship on Constitutional Conventions As far as scholarly literature on constitutional conventions is concerned, compared to other Central European countries, Poland is specific in 2 major ways. First, the space for the existence and scope of constitutional conventions is the most restricted, as can be inferred from the paragraphs above on the Polish legal and constitutional system. Some authors even claim that constitutional conventions or customs do not exist in Poland at all (Zi˛eba-Załucka, 2016, p. 50). The consequence of this situation is that constitutional conventions are only a sporadic subject of scholarly and political debate. For example, the concept of a constitutional convention was not mentioned once in the Sejm from 2015 to 2021 (Kubas, 2021). Likewise, we do not find them in some quite comprehensive commentaries on the Polish constitution (e.g., Banaszak, 2009). They do not even appear in the academic syntheses of the political system of Poland (e.g., Antoszewski, 2012; Lisicka, 2005). The concept of a constitutional convention is known to lawyers and political scientists as well as to politicians, but it is almost exclusively associated with Anglo-Saxon countries and not with domestic Polish politics.

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Second, and connected to the previous point, even if the term is accepted, it remains unestablished, and the terminology used is mostly fragmented and varies. Indeed, the basic problem is terminological. The absence of constitutional conventions in Poland does not mean that there are no unwritten rules of the political system. Such rules exist in Poland, although still very rare, yet they are often not referred to as constitutional conventions. The following main concepts can be encountered in Polish scholarly and political debates: ‘constitutional convention’ (konwenans konstytucyjny), ‘constitutional custom’ (zwyczaj konstytucyjny), ‘parliamentary custom’ (zwyczaj parlamentarny), ‘political practice’ (praktyka polityczna), ‘constitutional tradition’ (tradycja konstytucyjna), and ‘settled case law’ (linia/doktryna orzecznicza). The differences between these concepts are often vague and not always precisely distinguished, so the respective question is whether the conception of a constitutional convention is actually possible at all. The constitutional convention (konwenans konstytucyjny) is understood in Poland in full accordance with the Anglo-Saxon tradition (see the respective section above), and we do not find any original or specific ‘Polish’ meaning here (Biskup et al., 2013, p. 593; Górecki, 2012, p. 51; Kaczorowska, 2021; Kosowska-G˛astoł, 2021; Kubas et al., 2007, p. 414; Sarnecki, 2005, pp. 21–22; Wieciech, 2011, pp. 18–20). There are no publications in Polish scholarly legal and political science literature that define constitutional conventions in a ‘Polish’ way or relate them to the Polish constitutional and political system. In other words, the term constitutional convention is not used for the analysis of Polish constitutionalism and politics (Zale´sny, 2021). Conversely, the only Polish book on constitutional conventions deals exclusively with Anglo-Saxon countries respectively; we will not find any single note on Poland in it (see Wieciech, 2011). Probably the only exceptions are Wojciech Sokolewicz’s papers from 1993 and 1996 and the commentary on the Polish constitution edited by Piotr Tuleja from 2019. In the first paper, Sokolewicz used the concept of a constitutional convention in connection with the principle of discontinuity of parliamentary activities after elections (Sokolewicz, 1993, pp. 117–122). In the second article, this happened in connection with the issue of the accountability of the cabinet to parliament and possibly to the president (Sokolewicz, 1996, pp. 34–56). In both cases, however, the author mentioned the constitutional conventions as something that may only be borne in the future, not as an established rule. Interestingly, the author used the terms constitutional

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convention and constitutional custom synonymously (Sokolewicz, 1993, p. 120; 1996, p. 49). The commentary from 2019 on the Polish constitution is similarly cautious. One of the authors, Piotr Czarny, states in his interpretation of Article 154 of the constitution on the appointment of the prime minister and the government that in the expectation that the leader of the winning party or someone whom the leader of the party designates is appointed as prime minister, we could understand ‘at most as some kind of a political custom (or a constitutional convention)’ (Tuleja, 2019, p. 446). As stated above, the difference between constitutional convention and constitutional custom (zwyczaj konstytucyjny) is not always clear. A constitutional custom is an informal and non-binding recurring practice or pattern of behaviour in a given situation, and it is assumed that in the event of a recurrence, the practice will not change. Constitutional custom plays only a complementary and specifying role in the Polish legal system, which facilitates the understanding of rules contained in written legal norms, and its violation is not sanctioned. A custom is not a source of law, does not create legal norms, and is only a supplement to existing norms of constitutional law. It relates to the concrete implementation of constitutional norms (Garlicki, 2012, pp. 48–49; Kruk, 1998, p. 27; ˙ 2021). Sokół, 2021; Zukiewicz, The term ‘custom’ is most often reflected in parliament, so it is also sometimes associated or confused with the term parliamentary custom (zwyczaj parlamentarny), which is related exclusively to the issue of the functioning of parliament. From a material point of view, it is a convention, but it is not constitutional in nature (as it results from the standing orders of the Sejm); thus, it cannot be called a constitutional convention (or constitutional custom). However, some patterns of behaviour and functions of parliament are referred to as constitutional customs and not just as parliamentary customs. Generally, customs, however understood, as well as conventions are most pronounced in the parliament of Poland. The most important and frequently reported case in the literature is the convention/custom/practice of discontinuity of parliamentary activities after elections when the newly elected parliament does not take over the agenda of the last parliament and begins, so to speak, with a clean slate (Dudek, 2021; Florczak-W˛ator, 2020; Garlicki, 1995, p. 45; 1999, pp. 29–31; Kaczorowska, 2021; Leszczynska, ´ 2021; Litwin, 2007, pp. 183–206; Szpringer et al., 2002, pp. 79–107; Tuleja, 2021).

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An even broader concept than constitutional custom is political practice (praktyka polityczna) because it is concerned with those institutions and situations not mentioned in the constitution. A political practice does not specify general constitutional norms but lower-level legal acts ˙ 2021). However, the term political practice is used so loosely (Zukiewicz, in Poland that it is a question of whether it is at all definable for a scientifically applicable concept. Another term mentioned above are constitutional traditions (tradycje konstytucyjne), which refer to written constitutions from the past beginning with the constitution of 3 May 1791. It is a kind of historical heritage, but it only has a symbolic meaning and does not affect ˙ the contemporary Polish constitutional and political system (Zukiewicz, 2021). Probably the most specific term is the judicial line or doctrine (linia/ doktryna orzecznicza),49 which some scholars consider to be a specific form of convention. It is a situation where there is consensus in the case law of the courts regarding the interpretation of a given regulation and its application in specific cases. Judgement line or doctrine is often mentioned in indictments and in the reasoning of court judgements. However, courts are not bound by it, and if other arguments prevail in their assessment of cases and decisions, they may issue a decision that is inconsistent with the judgement line/doctrine; this practice is not ˙ uncommon (Przybylski-Lewandowski, 2005, pp. 167–168; Zukiewicz, 2021). Nevertheless, this issue is already far removed from the original discussion on constitutional conventions or customs as a phenomenon affecting the form and function of the Polish constitutional and political system. When we say that constitutional conventions or customs are rare in Poland, both at the level of professional and political debate, it is similar at the level of the constitutional judiciary. The Polish Constitutional Tribunal (Trybunał Konstytucyjny) does not use the concept of a constitutional convention at all and has never mentioned it, at least since 1997 (Kubas, 2021). Similarly, the specialised literature devoted to the Polish constitutional judiciary does not use the term constitutional convention (see Alberski, 2010; Zubik, 2008). On the other hand, the

49 Established case law.

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notion of constitutional custom appears in the case law of the Constitutional Tribunal, but only sporadically. In addition, the Constitutional Tribunal complements this notion with the notions of practice (praktyka) or precedent (precedens ), thus somewhat diluting its meaning. Finally, let us consider what causes there are for the insignificant (and ambiguous) status of constitutional conventions, or customs, in Poland. The reasons are constitutional and political. The constitutional or general legal reasoning for the absence of constitutional customs in Poland is that Polish constitutionalism is based on a formal, as opposed to material, constitution. It is constitutionalism based on systemic legal formalism. The current Polish Constitution of 1997 is one of the most regulatory constitutions in the world. Its third chapter describes, in detail, the sources of law, and constitutional conventions/customs are not mentioned there at all. There is a belief in the country that all important systemic aspects should be formalised and directly set out in written legal norms. Conversely, what is not regulated by written legal norms is not constitutionally binding. In addition, constitutional conventions/customs are not part of the Polish tradition and the Polish way of interpreting the 2021; Zale´sny, 2021). law (Leszczynska, ´ The political reasons are related to the high polarisation of the Polish party system and the associated sharp, centrifugal political rivalry in the country, which is based on the delegitimisation of political opponents (Bankowicz, 2021; Kubas, 2021). It is a political struggle in the sense of ‘we v. they’, which has been taking place in Poland since the early 1990s, only the representatives of ‘we’ and ‘they’ along with the subject matters under dispute have changed (see Dudek, 2016); regardless, its principles have remained the same. The political enemy (‘they’) is accused of its incompetence or even its very existence threatening the fundamental interests of the state or nation. In addition, in the last few years, we have witnessed the violation of the basic principles of democracy and democratic constitutionality in Poland. In such a political climate, there is no space for the formation of constitutional conventions or customs that require long-term general agreement on the basic form and direction of the country’s political system. There has never been such a consensus in Poland.

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Summary

If we omit, for the purposes of this summary, the period of blatant law violations and very ideological law interpretations during the earlier years of the communist system, we see that before 1989, all 4 Central European countries experienced a long tradition of the (formal) exclusivity of written law and suspicion to and rejection of other potential unwritten legal sources. Law application was very formalistic, focused on the text of legal regulations. This experience has fundamentally influenced the legal thinking of practitioners as well as academics in Central European states even after the political upheavals of 1989. Changes that occurred in the continental legal system in Western Europe during the twentieth century in terms of a more complex view of the nature and working of legal systems as well as the need to accept a wider interpretative reservoir for the purposes of law application were only absorbed gradually. In this regard, the constitutional courts of all Central European states played a profound role. However, the experiences in all Central European states are not homogenous in this regard. The employment of abstract constitutional principles, sometimes unwritten and sometimes mentioned in the Central European constitutions, enriched constitutional debates on the proper construction of constitutions. In the case of the Czech Republic and Slovakia, the recognition of the relevance of even unwritten constitutional principles also paved the way for some acknowledgement of the existence and normativity of constitutional conventions. Nevertheless, although referred to in the case law of both Czech and Slovak Constitutional Courts, constitutional conventions form a comparatively small part in their general argumentative apparatus. Legal and political scholarship, however, has tried to follow this judicial recognition and pursues further studies into the concept. It must be acknowledged that in the Czech Republic and Slovakia, despite the abovementioned judicial recognition, the concept of constitutional conventions is far from unequivocal in terms of understanding their origins, meaning, normative force, and individual practical examples. In Hungary and Poland, despite the important role of abstract constitutional principles in their case law, constitutional courts have been more reserved in potential references to established constitutional practices; as a result, constitutional conventions have not been recognised

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and internalised as components of these 2 constitutional systems. Nevertheless, both in Hungary and Poland, scholarly interest in constitutional conventions has been on the rise recently. Undoubtedly, this relatively lukewarm acceptance or even direct denial of the existence of conventions has had its origins partly in the historical tradition of focusing on written constitutional sources, which can also be exemplified by the strong influence of the German-Austrian way of conceptualising the legal system. Moreover, the existence of rather detailed codified Central European constitutions has minimised a space that might otherwise be filled by conventions. In addition, even though 30 years that have passed since 1989 (which may not seem too a short period for the establishment of constitutional conventions), it is necessary to keep in mind that in Poland (1997)50 and especially in Hungary (2011), new constitutions were adopted as opposed to earlier constitutions of the Czech Republic and Slovakia (1992). On top of this, both in Poland and Hungary, wide-reaching political and institutional changes took place, which may have made the constitutional terrain less fit for the establishment of conventions. However, some uncertainty regarding the nature and position of constitutional conventions or even the absence of a formal recognition of their existence and normative force do not necessarily entail the actual non-existence of established constitutional practices influencing the operation of the Central European constitutional systems. It is the aim of Chapter 4 to show how these practices—constitutional conventions as defined in the Sub-chapter 2.4—affect the constitutional position of Central European presidents.

2.4 Presidential Constitutional Conventions: Definition and Classification The aim of this subchapter is to suggest a working definition of constitutional conventions. We intend to formulate a definition with a general character, but given our focus on presidents (i.e., heads of states), we can easily infer a definition of presidential constitutional conventions: those rules (practices) that meet its criteria and that are directly related to the president. It should be noted that our aim is neither to impose

50 In 1992, the Interim (Small) Constitution was adopted.

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the concept of constitutional conventions from other countries onto the Central European region nor to develop a new normative definition of constitutional conventions. Instead, our definition takes the Anglo-Saxon (as well as other) scholarship into account and reflects the (more or less) settled patterns and practices of behaviour that have gradually been established in the Central European countries since the fall of the communist regimes. The definition’s purpose is not to change constitutional/ legal theories. Instead, it is instrumental in discussing, describing, and analysing patterns of presidential behaviour that are (or might be) termed as presidential constitutional conventions in Central European countries. Although the concept of constitutional conventions originated in Anglo-Saxon countries, constitutional conventions in their most typical way (i.e., unwritten, informal rules binding constitutional actors) can easily be found in constitutional practice as well as in the scholarship of other countries, including the Central European states. Some scholars even argue that constitutional conventions play a more or less important role in all political and legal systems (Feldman, 2014, p. 93; Giba, 2020a; Jaconelli, 2005, p. 149). Thus, there is an implicit claim that the already existing concept need not be limited to Anglo-Saxon countries but that it has a much larger heuristic and comparative value. Furthermore, creating a brand new conceptual framework to grasp such informal practices and ignoring existing scholarship would be a serious blunder, notably if the existing concept has already been employed and is well-known to Central European scholarship. For these reasons, we believe we can operate with the concept of constitutional conventions in the context of the Central European countries. 2.4.1

Defining Constitutional Conventions

As explained above, our working definition reflects the hitherto scholarship and is based on the understanding that the major defining features of constitutional conventions specified in the scholarship are important for it. However, having reviewed a large volume of literature on constitutional conventions, it would be unwarranted to claim that the scholarship tends to agree on a single understanding of the concept. Indeed, although heavily debated, the concept remains somewhat elusive (Aroney, 2015, p. 25; Forsey, 1984, p. 7), and one can easily identify

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differences in how scholars understand the term.51 Some definitional features are rather uncontroversial and well-accepted, whereas others are not. This might be caused not only by a large volume of academic texts coming from different legal and philosophical schools of thought but also by the fact that the scholarship comes from different countries with their own autonomous constitutional development, including in the field of jurisprudence (e.g., Ahmed et al., 2019; Resolution to amend the Constitution, [1981] 1 S.C.R. 753), which may significantly affect the role of constitutional conventions in their systems. In general, there are at least 3 widely (though not unanimously) used definitional features of constitutional conventions. First, conventions are non-legal rules (e.g., Ahmed et al., 2019, p. 4; Forsey, 1984, p. 11; Killey, 2014, pp. 11–20; Maley, 1985, p. 127). Unlike legislation, constitutional conventions originate in political practice (cf., Dicey, 1885; Killey, 2014; Sirota, 2011, pp. 44–45).52 Second, they are directly relevant to constitutions as they govern relations between constitutional institutions (Heard, 2005, p. 20; Jaconelli, 1999). Third, they are generally recognised and regularly followed although they are not (commonly) enforced by courts (e.g., Bradley & Ewing, 2007, p. 24; Forsey, 1984, p. 12; Galligan & Brenton, 2015, pp. 18–20; Heard, 2005, pp. 19–20; Jennings, 1959, p. 136; Killey, 2014, p. 4). This all being said, our studies of presidential constitutional conventions presented in this book are based on our understanding of constitutional conventions in the following sense: Constitutional conventions are usually unwritten, non-legal, and settled rules of conduct that originate in constitutional practice. They supplement the constitution, bind relevant constitutional actors, and are by legal means unenforceable. Their normative force results from their importance for the proper functioning of the constitutional system; breaches of constitutional conventions, therefore, lead to public criticism or to a political sanction.

51 Andrew Heard’s critique of Ivor Jenning’s concept is a good illustration of this point (see Heard, 2012). 52 Forsey (1984, p. 13) noted the following about constitutional conventions: ‘First and foremost, they are political: political in their birth, political in their growth and decay, and political in their application and sanctions’.

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To explain this definition, we accept that constitutional conventions are considered as non-legal rules, which means that the relevant legal systems do not recognise them as formal sources of law. They are unwritten because, unlike legislation, they are not contained in written constitutional documents. They are not products of the legislative process (or of judicial decision-making). Instead, they result from constitutionalpolitical practice (Forsey, 1984, p. 13; Gerloch, 2008, p. 37; Sirota, 2011, pp. 44–45), which may occasionally lead to the adoption of a written document of political nature, i.e., a political agreement (e.g., Taylor, 2014).53 For these reasons, we employ a condition that constitutional conventions are ‘usually unwritten rules’, but the form (written/ unwritten) is not a fundamental defining feature of the concept. Next, the definition assumes that a continual practice is usually required even though we do not stick to the demand of any specific number of precedents nor the time span of the practice. Still, constitutional conventions have to follow from a practice which determines at least a single precedent together with subsequent repetitions. Such leeway is especially useful for the application of said conventions in the Central European countries, which have had a relatively short democratic tradition and substantial political and legal changes even after 1989. This is the reason why we subscribe to the approach (presented in section one of this chapter) that perceives conventions as arising from basic constitutional principles and reflecting important constitutional values (e.g., Heard, 1989). Instead of waiting decades for conventions to emerge and to recognise them, this approach means that conventions may arise and grow relatively quickly. As time goes on, constitutional conventions consolidate and solidify, and actors also gradually learn to respect such rules. Nonetheless, there needs to be a shared understanding that behind the convention, there is a constitutional value which may not be explicitly described in the constitution and which should guide the conduct of constitutional actors. The definition treats constitutional conventions as being supplementary to the constitution, which means that the legislative text of the constitution, often containing brief and general provisions or even leaving ‘legislative gaps’, is supplemented by constitutional conventions that 53 Some scholars also mention a declaration by political leaders (for more on a debate on the rise of conventions, see Heard, 2012, pp. 333–337; Jaconelli, 1999, pp. 39–40; Maley, 1985, pp. 125–126).

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specify such provisions or fill in these gaps. Hence, constitutional conventions provide constitutions with flexibility and an ability to operate even under new conditions and in new situations. In this regard, our understanding is not different from the understanding of conventions in Anglo-Saxon countries. Indeed, as Ian Killey (inspired by Ivor Jennings) in the Australian context puts it, ‘by using conventions to deal with matters not dealt with by the words in our constitutions, we have given our constitutions the capacity to develop and adjust to deal with new situations, while remaining within a relatively stable framework provided by constitutional texts’ (Killey, 2014, p. 5). Their major function is to clarify the ‘rules of the game’. Conventions minimise or prevent tension between constitutional actors and ‘allow the machine of government to operate with a minimum of stress and conflict’ (Killey, 2014, p. 10). Importantly, the scope for the existence of a constitutional convention arises from the practice and/or the intention of political actors (cf., Forsey, 1984, p. 13). Since constitutional conventions (only) supplement the constitution as non-legal rules, they are usually unenforceable through legal means. Nevertheless, they can be employed by the courts as part of their reasoning and significantly influence the judicial interpretation of constitutional provisions (for more on this point, see Ahmed et al., 2019; Heard, 2012; Vermeule, 2013). Furthermore, conventions are constitutional conventions if they regulate the exercise of powers of constitutional actors.54 This condition differentiates constitutional conventions from other conventions, ceremonies, practices, and customs that have no substantial impact on the powers of constitutional actors and thus on the operation of the constitutional system. In Central European countries, such constitutional actors are, primarily, the president, government (or the prime minister), parliament, and constitutional or other courts of the highest order. The conventions typically regulate patterns of interactions between constitutional actors, but they may also relate to intra-institutional matters. Next, by the normative force of constitutional conventions, we mean that the 54 Dicey wrote about conventions that are mainly governing the exercise of royal prerogatives (Dicey, 1885, p. 281). Nonetheless, Dicey claims that conventions can be found not only in the executive but also in other constitutional bodies, notably parliament (Dicey, 1885, pp. cxli, lxviii). Galligan and Brenton (2015), among other issues, also structure their comparative study on conventions in line with the type of constitutional body in which constitutional conventions exist. The approach can be found also in another study on conventions (Killey, 2014, pp. 9–10).

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relevant constitutional practice is generally recognised and complied with by constitutional actors in pertinent issues because they consider it their duty. This duty follows from the understanding that compliance with the established practice enhances the proper functioning of the constitution. It is in line with general constitutional principles, such as the principle of representative government, executive accountability, or judicial independence, and it supports a stable (because it is foreseeable) constitutional environment. The normative strength of a convention largely depends on its relative solidity, which relies on several factors. First, the length of time the convention is complied with is an important factor. In other words, the longer the convention is observed, the stronger it is. Second, the frequency of the rule’s usage plays a role as well. Hence, a relatively recent constitutional convention might be more solid and established than an earlier constitutional convention since the former has been complied with more times than the latter. Third, recognition by numerous successive office holders needs to be taken into account. Not only are there various politicians who occupy the relevant constitutional position, but they may have different political backgrounds. Fourth, the actors pay respect for the convention even in times of political disadvantage. The convention is complied with even though respecting the rule may not be beneficial for these actors in political terms. In other words, if there were no convention that would prevent a politician from taking a beneficial action, an office holder would behave differently in order to receive the political benefits. Finally, constitutional conventions are binding, which means that there is a general expectation that they will be followed. There is pressure against deviation from a constitutional convention. The breach of a constitutional convention is typically not enforced by the courts. Instead, ‘obedience to the conventional precepts of the constitution is ensured by the force of public opinion’ (Dicey, 1885, p. 295).55 This understanding of conventions has been widely shared by scholars since then. Writers claim that the breach leads to public criticism (by experts and/or the general public) or a political sanction (election loss, drop in popularity, reduced repute, thwarted prospects in a professional career, resignation, condemnation by other political actors, etc.) (e.g., Anson, 1886, p. 383; 55 Dicey went on to argue that the breach ‘will almost immediately bring the offender into conflict with the Courts and the law of the land’ (Dicey, 1885, p. 297). This view has not been shared by many other more recent academic texts.

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Chand, 1938; p. 222–225; Forsey, 1984, p. 12; Killey, 2014, pp. 20– 24).56 In other words, if a rule of conduct is breached without public criticism or political sanctions, it is not essential to the constitutional system and, therefore, cannot be identified as a constitutional convention. It should be noted that like legal norms, constitutional conventions are subject to a continual process of renegotiation and adjustment because circumstances change (Feldman, 2014, p. 7; cf., Heard, 1989, p. 23; Jaconelli, 2005, p. 167; Taylor, 2014, pp. 305–306). It means that the area of conventions is dynamic (Chand, 1938, p. 224). Alongside wellestablished constitutional conventions, there might be conventions that changed or ceased to exist (as they are no longer used), some other conventions that have been codified (turned into a legislative rule or principle), or a new law that is passed which may eliminate a previous convention (cf., Dicey, 1885, pp. lxix–lxxii). Some other practices are just emerging. These are not conventions yet as only time can show whether they will turn into regular practices that are respected by constitutional actors. For these reasons, we are concerned with 2 major groups of patterns. First, we focus on those rules that can be labelled constitutional conventions as they have been (firmly) established in the Central European polities, and there has been a general consensus that these rules are to be respected and complied with by constitutional actors. Second, and no less important, we shall also focus on those rules that are less solid. We call these rules emerging constitutional conventions. These rules have the potential to become full-fledged conventions in the future. However, for the time being, they are not firmly established. Typically, compared to the established constitutional conventions, these rules are (a) of recent origin, (b) their usage (frequency) is lower, and (c) they are subject to political and legal debates as to their contents and character. Some rules might even be disputed given varying interpretations of constitutional practice. Indeed, whereas some relevant actors may cast doubt on the legitimacy and binding nature of these rules, others may claim that the

56 Another political consequence of the breach of a convention is damage to the indi-

vidual’s institution. Such institutions are at risk of a reduction of their powers, notably if the powers were used in a way that was not consistent with a convention. The 1911 Parliament Act (UK) is a good case in point. The act, which curtailed the powers of the House of Lords, was a reaction to the arguably unconventional behaviour of the House of Lords that blocked a money bill in 1909 (Killey, 2014, p. 23).

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rules should be followed. We include this ‘grey zone’ of unwritten rules, some of which may not turn out to be constitutional conventions in the end. Still, these debates are instrumental in our effort to identify presidential constitutional conventions and separate them from practices that do not fully meet our criteria for conventions. Even though we formulate a relatively clear definition of constitutional conventions, one may soon encounter difficulties. For example, the meaning of particular conventions may be difficult to discern because conventions ‘… can, and do, provide ample scope for disagreement between experts’ (Killey, 2014, p. 5) owing to their ‘grey areas and frayed edges’ (Hailsham of St. Marylebone, 1992, p. 13). This fact is well demonstrated in Chapter 4 of the book. It can also be easily discerned from views we collected through semi-structured interviews with country experts. 2.4.2

Classification of Constitutional Conventions

Alongside these definitional differences, the literature is abundant in other aspects of constitutional conventions. However, since these are not defining features, we treat them as variables of conventions that become the basis for our classification of constitutional conventions. The first theme deals with the relevance attributed to conventions by courts. A traditional perspective on conventions traced back to Dicey insisted that conventions are fundamentally distinct from laws; therefore, they are neither enforced nor enforceable by the courts (for a debate, see Jaconelli, 2005; Munro, 2005). However, a more recent approach asserts that there is no water-tight separation between legal rules and conventions and that conventions might (and even should) be enforced by the courts (e.g., Aroney, 2015; Barber, 2009; Heard, 1991; Maley, 1985; Sirota, 2011; see also Vermeule, 2013). Indeed, in practice, courts have employed conventions. Farrah Ahmed and her colleagues (2019) suggested a distinction of how courts may (and in fact often do) engage with constitutional conventions: (1) recognition, which means that courts simply recognise a convention’s existence or its scope; (2) employment, which means that courts use conventions in the act of legal reasoning (e.g., conventions as grounds for interpretation of legal provisions, conventions as grounds for the application of laws); and (3) enforcement, which means that some courts seek the formal judicial enforcement of conventions. This approach is useful in showing various

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degree of binding force courts may attribute to conventions depending on the geographical context or the relevant legal system (for more on court’s engagement of conventions, see Ahmed et al., 2019; Heard, 2012; Vermeule, 2013; the 1981 Patriation Reference case of the Supreme Court of Canada; the Miller I and Miller II cases of the UK Supreme Court) but also on the nature of a particular convention. Second, there is the question of the origin of conventions. This issue was not tackled by Dicey, but it was largely discussed by more recent writers (e.g., Chand, 1938, pp. 225–229; Jennings, 1959). To be more specific, 3 ways in which conventions are established are commonly distinguished (Heard, 1989, pp. 64–65; Marshall, 2001, pp. 8–9). First, there is a precedent that sets the way in which constitutional actors act in the same or similar situations (Forsey, 1984, pp. 13–15; Jennings, 1959, p. 136). Second, there might be an agreement among the actors determined to work in a specific way (see Bowers, 2005; Chand, 1938, pp. 226–228; Taylor, 2014). Finally, conventions are established on the basis of a generally acknowledged principle which is applied to the special circumstances of the case (concretisation) and provides a strong justification for it (e.g., Heard, 1989, pp. 66–67; 2012, p. 330; Jaconelli, 1999, p. 28; Marshall, 2001, pp. 8–9). Third, conventions differ as to the extent to which they deviate from the constitutional text. Scholars usually employ a distinction between interpretative, creative, and contra constitutionem conventions. The interpretative convention refers to a recognised interpretation of constitutional provisions in cases where various potential interpretations may arise from reading the text. The second kind of a convention creates a new rule alongside a constitutional text. Finally, the contra constitutionem conventions stand in clear conflict with a constitutional text (e.g., Avril & Gicquel, 1989, pp. 18–19).57 Fourth, constitutional conventions differ in how they affect the real (de facto) power of constitutional actors. Taking the perspective of the president, one may ask the following: do conventions curb or enhance

57 Similarly, Keith Whittington distinguished between constitutional interpretation,

‘which seeks to faithfully articulate the rules laid down in the fundamental law’ (Whittington, 2013, p. 108) on the one hand, and constitutional construction, which ‘seeks to identify how constitutional meaning and practices are developed in the interstices of the constitutional text’ (Whittington, 2013, p. 101–124; see also Whittington, 1999a, 1999b).

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real presidential power? Since Dicey, it has been argued that conventions constrain the power of the monarch and other institutions in order to prevent tyranny and to decrease the level of arbitrariness in governmental action (Dicey, 1885, p. 285; Jaconelli, 1999, p. 27; Sirota, 2011, p. 30). However, there is no theoretical reason to claim that conventions cannot give the president additional powers. Indeed, as the French political system shows, there are conventions that actually enhance presidential power, making the French president more powerful than it might seem from the constitutional text (Bell, 1992, pp. 58–62; see also Duverger, 1980, pp. 170–172). The same applies for the German president, whose powers to dissolve have been widened by convention (for a debate see: BVerfGE 62, 1 – Bundestagsauflösung I; BVerfGE 114, 107 – Bundestagsauflösung II; VerfGE 114, 121 – Bundestagsauflösung III; Herbst 2006; Klein 1983). To make the set of possibilities complete, we suggest adding a third case: a constitutional convention which has no significant effect on actors’ powers but may perhaps only have symbolic value.58 Fifth, and connected to the issue above, we may distinguish between duty-imposing and power-conferring conventions, the distinction being inferred from Hart’s work (1961). Whereas the former requires actors to do or abstain from taking certain steps, whether they wish to do so or not, the latter give them room for discretion, which in turn may increase their power (cf., Jaconelli, 2005, p. 152; Marshall, 2001, pp. 7–8). The final issue is concerned with the importance of constitutional conventions. Obviously, it would be erroneous to treat all conventions as equally important. Some conventions are vital for the survival of a polity per se, and their violation could lead to a constitutional crisis; meanwhile, some other conventions are of lesser importance. This was clearly shown by Dicey when talking about British constitutional conventions: ‘Some of these maxims are never violated, and are universally admitted to be inviolable. Others, on the other hand, have nothing but a slight amount of custom in their favour, and are of disputable validity’ (cf., Dicey, 1885, pp. 33–34; Marshall, 2001, p. 5).

58 An example could be the abovementioned practice in the Czech constitutional system, sometimes considered as an established constitutional convention: despite the text of the constitution requiring the president’s signature under all statutes adopted by parliament, the president does not sign statutes in relation to which s/he unsuccessfully exercised the suspensive veto power (for details see Sect. 4.1.2).

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This idea was taken further by J. P. Mackintosh, who argued that: ... conventions have different degrees of force. Some are fundamental in that to break them would overturn the basic principles of the constitution ... Some conventions are of considerable force but might conceivably have altered by the year 2000, without totally changing the nature of the constitution ... There are other conventions which are of less importance and merely indicate that certain usages are inadvisable or inappropriate. (Mackintosh, 1977, pp. 20–21)

Consequently, Andrew Heard provides a useful classification (order) of conventions as regards their importance for the constitution and its principles. First, there are fundamental conventions. These conventions ‘… closely embody or buttress vital constitutional principles and are supported by general agreement on the existence and value of the principle involved, as well as on the terms of the rule itself’. Any breach or change of these conventions would ‘produce significant changes in the operation of the constitution’ (Heard, 1989, p. 72). Second, there are meso-conventions which ultimately protect widely accepted constitutional principles but do not necessarily incorporate those principles closely. Both fundamental and meso-conventions share a basic feature in that their total absence would significantly change the operation of the constitution. Unlike fundamental conventions, under specific conditions, meso-conventions can be altered without any drastic change to the operation of the constitution. Third, semi-conventions prescribe a desirable behaviour in the normal course of events. However, the expected behaviour may occasionally be disregarded without any significant impact. The 3 above-described types of conventions have one feature in common: there is general support for the practice, which is seen as legitimate. In contrast, infraconventions (i.e., the fourth category) include those practices which lack general acceptance. Andrew Heard claims that such a practice ‘may be supposed by some actors and authorities to be conventions, but in fact they cannot be viewed objectively as binding rules since they lack sufficient consensual agreement on their existence. Opinion on this group can be deeply divided over the principles involved’ (Heard, 1989, p. 74). The lack of consensus among political actors prevents infra-conventions from becoming definitive rules to be complied with by the politicians.

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Indeed, the existence of these conventions is hotly contested. Infraconventions may also include ‘embryonic rules’ that may be transformed into another type of conventions. Finally, infra-conventions may denote those rules that used to be firmly accepted constitutional conventions that however degenerated and consensus that used to underpin them has eroded (Heard, 1989, pp. 71–74). Although Heard’s classification does not provide us with a fine-grained set of criteria to assess individual conventions, there is no better tool to differentiate among the conventions as regards their importance to constitutional systems to the best of our knowledge. We apply the variables of constitutional conventions introduced above in Chapter 4 of this book.

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Schröcker, S. (1966b). Ungeschriebenes Verfassungsrecht im Bundesstaat: Zum 100. Gründungsjahr Des Deutschen Bundesstaats II. Der Staat, 5(3), 315– 340. Seltenreich, R., et al. (2010). Dˇejiny evropského kontinentálního práva. Leges. Seltenreich, R., & Kuklík, J. (Eds.). (2011). Dˇejiny angloamerického práva. Leges. Šimíˇcek, V. (2003). Ústavnˇeprávní pravidla sestavování vlády po volbách a jeho praxe. In L. Linek (Ed.), Volby do Poslanecké snˇemovny 2002 (pp. 162–168). ˇ Sociologický ústav AV CR. Sirota, L. (2011). Towards a Jurisprudence of Constitutional Conventions. Oxford University Commonwealth Law Journal, 11(1), 29–51. ˇ Sládeˇcek, V., et al. (2007). Ústava Ceské republiky. Komentáˇr . C. H. Beck. ˇ Sládeˇcek, V., et al. (2016). Ústava Ceské republiky. Komentáˇr . C. H. Beck. Sokół, W. (2021, January 30). Semi-Structured Expert Interview. Sokolewicz, W. (1993). Uwagi o konsekwencjach rozwi˛azania Sejmu dla niedokonczonych ´ post˛epowan´ ustawodawczych. Przeglad ˛ Sejmowy, 1(3), 117– 122. Sokolewicz, W. (1996). Pomi˛edzy systemem parlamentarno-gabinetowym a systemem prezydencko-parlamentarnym: Prezydentura ograniczona, lecz aktywna w Polsce i Rumunii. Przeglad ˛ Sejmowy, 3(15), 34–56. Sólyom, L. (2001). Az alkotmánybíráskodás kezdetei Magyarországon. Osiris. Sossin, L., & Dodek, A. (2009). When Silence Isn’t Golden: Constitutional Conventions, Constitutional Culture, and the Governor General. In P. Russel & L. Sossin (Eds.), Parliamentary Democracy in Crisis (pp. 91–104). University of Toronto Press. ˇ & Klíma, K. (2008). Ústavné právo Slovenskej republiky. Svák, J., Cibulka, L., Všeobecná cˇastˇ. Eurokódex – BVŠP. Szabó, I. (2020). Az o ˝si alkotmány – Történeti el˝ ozmények. In L. Csink, B. Schanda, & Z. A. Varga (Eds.), A magyar közjog alapintézményei (pp. 83– 122). Pázmány Press. Szászy-Schwarz, G. (1912). Parerga. Athenaeum. Szentpéteri Nagy, R. (2005). A Parlamentáris Kormányrendszer Államf˝ oje. Politikatudományi Szemle, 14(3–4), 111–129. Szomszéd, O. (2005). Államf˝ oi jogkörök alkalmazása, a gyakorlatban. Politikatudományi Szemle, 14(3–4), 131–147. Szpringer, Z., et al. (2002). Projekt ustawy budzetowej ˙ a zasada dyskontynuacji prac legislacyjnych Sejmu. Przeglad ˛ Sejmowy, 10(1), 79–107. Štiavnický, J., & Steuer, M. (2020). The Constitutional Court of the Slovak Republic: The Many Faces of Law-Making by a Constitutional Court with Extensive Review Powers. In M. Florczak-W˛ator, Judicial Law-Making in European Constitutional Courts (pp. 183–200). Taylor & Francis

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Taylor, G. (2014). Convention by Consensus: Constitutional Conventions in Germany. International Journal of Constitutional Law, 12(2), 303–329. Tomkins, A. (2005). Our Republican Constitution. Hart. Tomuschat, Ch. (1972). Verfassungsgewohnheitsrecht. Mohr Siebeck. Tuleja, P. (Ed). (2019). Konstytucja Rzeczypospolitej Polskiej. Komentarz. Wolters Kluwer. Tuleja, P. (2021, March 15). Semi-Structured Expert Interview. Twomey, A. (2011). Changing the Leader—The Constitutional Conventions Concerning the Resignation of Prime Ministers and Premiers. Federal Law Review, 39(3), 329–360. Vanˇca, M. (2018). Imperátor a gubernátor. Pˇrekryv pusobení ˚ dvou pˇredsedu˚ vlády z hlediska ústavního práva, komparativní politologie a teoretické státovˇedy. Univerzita Karlova. Vermeule, A. (2013). Conventions in Court. Harvard University’s DASH Repository. https://dash.harvard.edu/handle/1/11320606 Vetzo, M. (2018). The Legal Relevance of Constitutional Conventions in the United Kingdom and the Netherlands. Utrecht Law Review, 14(1), 143–156. Vincze, A. (2004). “Kabinet-kérdés”; - A Kormány lemondási kötelezettsége a bizalom megvonása esetén. Magyar Jog, 2004, 339–346. Vincze, A. (2009). Az Alkotmánybíróság. In A. Jakab, Az Alkotmány kommentárja (pp. 1099–1176). Századvég. Vincze, A. (2012). The New Hungarian Constitution: Redrafting, Rebranding or Revolution? Vienna Journal on International Constitutional Law, 6(1), 88–105. Vincze, A. (2020). Die Interpretationsregeln des ungarischen Grundgesetzes: zwischen Konvention, Tradition und Voluntarismus. Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 80(4), 973–988. Vincze, A. (2021). Szokás, szokásjog és konvenció az alkotmányjogban. Közjogi Szemle, 14(1), 1–11. Vincze, A., Jakab, A., & Schweitzer, G. (2021). The Austrian Influence on Hungarian Constitutional and Administrative Law and Scholarly Literature (1920–2020). Zeitschrift für öffentliches Recht, 76(2), 469–490. Voßkuhle, A. (2004). Gibt es und wozu nutzt eine Lehre vom Verfassungswandel? Der Staat, 43(3), 450–459. Wagnerová, E. (2013, April 23). Zeman porušuje ústavní zvyklosti. Kompetenˇcní spor by prohrál. Deník Referendum. https://denikreferendum.cz/clanek/ 15404-wagnerova-zeman-porusuje-ustavni-zvyklosti-kompetencni-spor-byprohral Waldron, J. (1990). The Law. Routledge. Whittington, K. (1999a). Constitutional Construction: Divided Powers and Constitutional Meaning. Harvard University Press.

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Whittington, K. (1999b). Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review. University Press of Kansas. Whittington, K. (2013). The Status of Unwritten Constitutional Conventions in the United States. University of Illinois Law Review, 2013, 101–124. Wieciech, T. (2011). Konwenanse konstytucyjne. Wydawnictwo Uniwersytetu Jagiellonskiego. ´ Winkler, D. (2006). Politik im verfassungsfreien Raum. Zeitschrift Für StaatsUnd Europawissenschaften, 4, 103–119. ˇ ek. Wintr, J. (2018). Principy cˇeského ústavního práva. Aleš Cenˇ Wintr, J., Antoš, M., & Kysela, J. (2016). Direct Election of the President and Its Constitutional and Political Consequences. Acta Politologica, 8(2), 145–163. Wintr, J., & Kysela, J. (2017). Ústavní rozmˇer vládní krize z kvˇetna 2017. Právní Rozhledy, 25(13–14), 457–463. Wolff, H. A. (2000). Ungeschriebenes Verfassungsrecht unter dem Grundgesetz. Mohr Siebeck. Zale´sny, J. (2021, January 17). Semi-Structured Expert Interview. Zi˛eba-Załucka, H. (Ed.). (2016). Organy panstwowe ´ w ustroju konstytucyjnym RP. Wydawnictwo Uniwersytetu Rzeszowskiego. Zubik, M. (Ed.). (2008). Konstytucja III RP w tezach orzeczniczych TK i wybranych sadów. ˛ Wydawnictwo C. H. Beck. ˙ Zukiewicz, P. (2021, January 31). Semi-Structured Expert Interview. Zweigert, K., & Kötz, H. (1998). An Introduction to Comparative Law. Clarendon Press.

Legislation, Other Legal Documents and Case Law Czech Republic Constitutional Act No. 1/1993 Coll. The Constitution of the Czech Republic. Judgement of the Czech Constitutional Court of 12th December. 1993, Pl.ÚS 19/93. Judgement of the Czech Constitutional Court of 17th December 1997, Pl.ÚS 33/97. Judgement of the Czech Constitutional Court of 20th June 2001, Pl.ÚS 14/ 01. Judgement of the Czech Constitutional Court of 25th June 2002, Pl.ÚS 36/ 01. Judgement of the Czech Constitutional Court of 12th September 2007, Pl.ÚS 87/06. Judgement of the Czech Constitutional Court of 10th September 2009, Pl.ÚS 27/09.

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Slovakia Constitutional Act No. 330/2011 Coll., on the shortening of the term of office of the National Council of the Slovak Republic. Constitutional Act No. 460/1992 Coll. The Constitution of the Slovak Republic. Judgement of the Slovak Constitutional Court of 24th May 1995, PL. ÚS 16/ 95. Judgement of the Slovak Constitutional Court of 26th May 1998, I. ÚS 10/98. Judgement of the Slovak Constitutional Court of 5th October 2011, PL. ÚS 95/2011. Judgement of the Slovak Constitutional Court of 4th December 2014, I. ÚS 397/2014. Judgement of the Slovak Constitutional Court of 17th March 2015, III. ÚS 571/2014. Judgement of the Slovak Constitutional Court of 6th December 2016, I. ÚS 575/2016. Judgement of the Slovak Constitutional Court of 31st May 2017, PL. ÚS 7/ 2017. Judgement of the Slovak Constitutional Court of 30th January 2019, PL. ÚS 21/2014. Resolution of the Slovak Constitutional Court of 23rd November 1993, I. ÚS 74/93. Resolution of the Slovak Constitutional Court of 24th October 2012a, PL. ÚS 4/2012. Hungary Decision of the Constitutional Court of Hungary of 26th September 1991, 48/ 1991 (IX. 26.) AB. Decision of the Constitutional Court of Hungary of 27th November 1998, 50/ 1998 (XI. 27.) AB. Poland Judgement of the Polish Constitutional Tribunal of 24th June 2002, K 14/02. Judgement of the Polish Constitutional Tribunal of 24th March 2004, K 37/ 03. Judgement of the Polish Constitutional Tribunal of 8th February 2005, K 17/ 03. Judgement of the Polish Constitutional Tribunal of 17th July 2017, K 9/17. Germany Judgement of the German Federal Constitutional Court of 16th February 1983, BVerfGE 62, 1 – Bundestagsauflösung I. Resolution of the German Federal Constitutional Court of 13th May 1986, BVerfGE 72, 175 – Wohnungsfürsorge.

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Judgement of the German Federal Constitutional Court of 8th April 2002, BVerfGE 105, 197 – Minderheitsrechte im Untersuchungsausschuß. Resolution of the German Federal Constitutional Court of 23rd August 2005, BVerfGE 114, 107 – Bundestagsauflösung II. Judgement of the German Federal Constitutional Court of 25th August 2005, BVerfGE 114, 121 – Bundestagsauflösung III. Resolution of the German Federal Constitutional Court of 17th June 2009, BVerfGE 124, 78 – Untersuchungsausschuss Geheimgefängnisse. Resolution of the German Federal Constitutional Court of 1st July 2009, BVerfGE 124, 161 – Überwachung von Bundestagsabgeordneten. Judgement of the German Federal Constitutional Court of 19th June 2012, BVerfGE 131, 152 – Unterrichtungspflicht. Judgement of the German Federal Constitutional Court of 12th September 2012b, BVerfGE 132, 195 – Europäischer Stabilitätsmechanismus. Judgement of the German Federal Constitutional Court of 2nd June 2015, BVerfGE 139, 194 – Informationsrechte des Bundestags bei Unterstützungseinsätzen der Bundespolizei. Judgement of the German Federal Constitutional Court of 23rd September 2015, BVerfGE 140, 160 – Evakuierung aus Libyen. Judgement of the German Federal Constitutional Court of 3rd May 2016, BVerfGE 142, 25 – Oppositionsrechte. United Kingdom Miller & Anor, R (on the application of) v Secretary of State for Exiting the European Union (Rev 3) [2017] UKSC 5. R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland ([2019] UKSC 41. Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) (Divisional Court, Queen’ s Bench Division). Canada Resolution to amend the Constitution, [1981] 1 S.C.R. 753.

CHAPTER 3

Presidents in Constitutions

The aim of this chapter is to study the formal constitutional position of presidents within the constitutions of Central European countries. We shall inquire into 3 major aspects of the 4 presidencies. First, we shall look into the position of the president within the division of powers. Second, we study their formal competences (powers). In line with most classifications of presidential powers by political scientists,1 we distinguish between legislative and non-legislative powers (cf., Metcalf, 2000; Shugart & Carey, 1992). We focus on (1) the most important competences that define the position of the president in the constitutional system, and (2) competences that are directly related to constitutional conventions, including those conventions that are just emerging. Thus, the chapter does not provide a definite list or analysis of their competences, which has been described elsewhere (e.g., Drgonec, 2015; Kovács, 2009; Petrétei, 2018; Sládeˇcek et al., 2016; Tuleja, 2019). Third, in order to study how much room the constitution provides for conventions to emerge, we present the scope and frequency of constitutional changes that affected the presidency in these constitutional systems.

1 It should be pointed out that constitutional experts and lawyers use a different classification of presidential powers. Still, our approach allows for a comparable account of presidential competences in all the 4 countries.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_3

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3.1

Presidents of Parliamentary Democracies

All Central European countries can be considered parliamentary systems (Antoszewski, 2012, p. 55; Bankowicz, 2010, p. 176; Brunclík & Kubát, 2016; Dobos et al., 2013; Giba, 2011, p. 102; Giba et al., 2019, p. 229; Kopeˇcek, 2006; Kresák, 1996; Wiatr, 2006, p. 154), although Poland used to have a more powerful president that allowed for the classification of Poland as a semi-presidential regime in the early 1990s (Bankowicz, 2013, p. 174; Metcalf, 2000; Millard, 2007; Siaroff, 2003; Goetz & Wollmann, 2001).2 Presidents of Central European countries (except for the Hungarian case) are part of the executive branch. However, the inclusion of presidencies in the executive branch is not generally intended to allow presidents to independently exercise executive powers. The constitutions entrust the prime minister3 and government with the roles of ‘chief-executive’ and major policy-maker. In other words, governments are dominant executive bodies that are far more powerful than presidents. The governments (i.e., prime minister and ministers) are derived from parliament, to which the governments are accountable. In contrast, presidents are generally designed as actors performing a different role than the government. First, they act as ‘arbiters’ within the division of powers, having tools to check and balance the power of the government and parliament. Second, they perform representative, symbolic, and ceremonial roles (cf., Brunclík & Kubát, 2019, pp. 52–53; Giba, 2011, p. 107). The relationship between the ceremonial and active political roles of presidents differs among Central European states, and the Hungarian head of state is the least influential among them. The above-described general logic of how Central European parliamentary regimes operate was not changed with the introduction of popular elections for presidents (Poland in 1990, Slovakia in 1999,

2 We are well aware of the so-called post-Duvergerian conceptualisation of semipresidential regimes that disregard the criterion of presidential powers that is central to Duverger’s original definition (Duverger, 1980, p. 166) and that defines semipresidentialism as a system where ‘a popularly elected fixed term president exists alongside a prime-minister and cabinet, who are responsible to parliament’ (Elgie, 1999, p. 13). This definition allows scholars to define the Czech Republic, Slovakia, and Poland as semipresidential regimes. However, we subscribe to a different concept of semi-presidentialism that clarifies the original concept of semi-presidential by Duverger and keeps the criterion of presidential powers in the definition (Brunclík & Kubát, 2019). 3 The terms prime minister and premier are used interchangeably in this book.

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and Czech Republic in 2012). In general terms, popular elections have made presidents independent of parliament and parliamentary parties, giving them potentially greater powers and increasing the likelihood of a conflict with the government (for a debate, see Baylis, 1996; Tavits, 2009; Sedelius & Ekman, 2010; Raunio & Sedelius, 2020). However, the shift from parliamentary to direct elections was not accompanied by any significant changes in their formal competences. Hence, the overall constitutional architecture of a parliamentary regime was not changed (for more, see Brunclík & Kubát, 2019).

3.2

Czech Republic

The modern history of an independent Czech state started on 1 January 1993, following the peaceful dissolution of Czechoslovakia, the common state of the Czech and Slovak nations (Kipke & Vodiˇcka, 1993; Musil, 1995; Stein, 2000). Despite the fact that the Czech Republic drafted and passed its new constitution in 1992 (the Constitution of the Czech Republic—CCR), a great deal of the Czechoslovak constitutional tradition impacted the 1992 constitution. By far the most important source of inspiration was the 1920 Constitution of Czechoslovakia, ‘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’ (Brunclík & Kubát, 2019, p. 32). This fact is clearly reflected in the preamble of the 1992 constitution: ‘Faithful to all good traditions of the long-existing statehood of the lands of the Bohemian Crown, as well as of Czechoslovak statehood’. The reference to the interwar period is not a mere formality. The 1920 constitution4 as well as constitutional practice, including (but not exclusive to) presidential politics, have all clearly affected the post-1992 period (for more details, see Fawn, 2000, pp. 39–45; Gerloch, Hˇrebejk, & Zoubek, 2002, p. 78; Kopecký, 2001b, p. 336; Marková, 2015, p. 25;

4 As Josef Mlejnek argues, ‘The Czech Constitution was essentially a creative copy of the first Czechoslovak Constitution’ (Mlejnek, 2015, p. 50; for details, see also Marková, 2015). Some scholars argue that the impact of the 1920 constitution has been exaggerated and, instead, that the 1960 constitutional text of communist Czechoslovakia directly affected the wording of the 1992 constitution (for debates see Kudrna, 2013, p. 87).

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Mlsna, 2011, pp. 24–31). The interwar Czechoslovak state was characterised by a real democracy, definitely if compared to other countries in the region. As far as the presidency is concerned, the first president who bore the lion’s share for creating an independent Czechoslovak state, Tomáš Garrigue Masaryk, helped establish the tradition of influential presidents, which has had a high degree of relevance for the analysis of constitutional conventions in the Czech Republic. However, there is a clear paradox: although Masaryk enjoyed great informal authority and respect across the political spectrum and although he was positively inclined toward the American presidency model (Broklová, 2001, p. 34; Kopeˇcek & Mlejnek, 2013, p. 34; Masaryk, 1938, pp. 258, 576–577), the 1920 constitution established a rather standard parliamentary system where the government headed by the prime minister plays the decisive role. In other words, the political and constitutional legacy of interwar Czechoslovakia resides in a formally weak (in terms of constitutional powers) but politically active and influential presidency within the framework of a parliamentary regime (Brunclík & Kubát, 2019, pp. 25–26). The democratic era was followed by the authoritarian system of the Second Czechoslovak Republic (1938–1939), the Germany-controlled Protectorate of Bohemia and Moravia (1939–1945), the semi-democratic regime of the Third Republic (1945–1948), and, finally, the era of the communist non-democratic regime that characterised the Czechoslovak state between 1948 and 1989. These political systems, which were for the most part purely non-democratic, could hardly become legitimate sources of constitutional and political inspiration for the Czech Republic. However, paradoxically enough, the so-called ‘Socialist Constitution’ of 1960 and the era of communist presidents affected the presidency of the Czech Republic in 2 peculiar ways. First, unlike most other communist regimes, which replaced the president with a collective head of state in line with the Soviet model, Czechoslovakia maintained the presidential institution as a single head of state (largely due to the traditionally strong symbolic value attached to the head of state since the establishment of Czechoslovakia). Second, even though the institution of the president was retained in the constitution as an element of continuity with democratic Czechoslovakia and was purely representational (Šimíˇcek & Kysela, 2009, p. 325), the leaders of the Communist Party, who were the real decision-makers, often became president. Hence, this peculiar arrangement actually preserved the tradition of influential presidents

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(Ryantová et al., 2016). In short, communist Czechoslovakia could hardly serve as a constitutional model for the Czech Republic, but ‘it came to instill a certain formal link between the interwar period and the post-1989 period’ (Brunclík & Kubát, 2019, p. 28). Similar to the first president of Czechoslovakia (T. G. Masaryk), the first president of democratic Czechoslovakia (1989–1993) as well as of the Czech Republic (1993–2003), Václav Havel, was originally in favour of a more powerful presidency. In his constitutional draft from March 1991, Havel envisioned a president endowed with the power to dissolve parliament, declare a state of emergency, and call for a referendum. Havel also wished for the president to be popularly elected. Finally, in August 1992, Havel suggested that the president should have the power to appoint a technocratic cabinet if the previous cabinet resigns. Thus, in the case of a government breakdown, the president would be allowed to appoint ‘his’ cabinet, which would not be obliged to win a vote of confidence in parliament (Havel, 2003, pp. 384–385).5 However, it was not Havel but parliamentary parties that controlled the constitution making process, and most of Havel’s ideas were rejected in parliament (for details, see Kopecký, 2001a, pp. 32–35, 2001b, p. 325). The then-largest party, the Civic Democratic Party (Obˇcanská demokratická strana, ODS) led by Prime Minister Václav Klaus, was in favour of limiting presidential powers in the original draft of the constitution to forestall ‘another competing center of executive power’ (Kopeˇcek, 2010, pp. 157–158; for further details, see Filip, 2002; Hendrych, 2013, p. 31). To sum up, although the 1992 constitution provided for a parliamentary regime with an indirectly elected president mostly endowed with representative and ceremonial functions, the Czech presidency has retained a few important powers that allowed her/him to occasionally step into the middle of Czech politics and its political battles. In addition, Czech presidents, starting with Václav Havel, have almost always enjoyed a great deal of popularity and informal authority, which have made them more powerful than might seem from the constitutional text (the colloquial expression for the institution of the head of state is ‘the Castle’, referring to the presidential seat at Prague Castle, the traditional seat of Czech rulers since the Middle Ages).

5 Havel’s original paper was reprinted in a volume edited in 2003.

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3.2.1

Position of the Czech President

The Czech presidency is included in the chapter of the constitution dealing with the executive power. However, the president is not chief executive. The supreme position of executive power rests with the government, headed by the prime minister and accountable to the Chamber of Deputies (the lower house of parliament). The overall distribution of power in the constitutional system and its parliamentary character was not changed with the introduction of direct election for the presidency in 2012. After all, the parliamentary regime is anchored by Czech constitutional law and the jurisprudence of the Constitutional Court (Wintr, 2013, p. 57). In general, the president’s role is described as that of the representative of the state, guarantor of order, and mediator of political disputes (see Wintr, 2018, p. 66). The president is not expected to implement his/her own policies independently of the government. This fact is respected by the constitution, which explicitly states that the president is not accountable for the discharge of his/her office (Art. 54, para. 3 CCR). Although the president may be impeached from the office, the constitutional provisions regulating impeachment are designed to make this difficult (see the Section 3.2.3). The constitution defines 2 major groups of presidential powers.6 First, there are competences enumerated in Art. 62. According to this provision, the president does not need a countersignature of the prime minister or any other member of the government authorised by the prime minister for making decisions in exercising these powers, although cooperation with other constitutional bodies is sometimes required. Second, there are competences listed in Art. 63, paras. 1 and 2 CCR, where presidential decisions are only valid if countersigned by the prime minister or another government member authorised by the prime minister. Also, the government bears responsibility for these decisions (Art. 63, paras. 3 and 4 CCR)—thus, an inappropriate countersignature may result in a vote of no-confidence in the Chamber of Deputies. The legal liability of the countersigning member of the government is also conceivable.

6 Some of the constitutional competences are further specified by ordinary laws. Execution of competences that are not explicitly referred to in the constitution are subject to the countersignature of the prime minister or a minister authorised to do so.

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Constitutional Competences

Legislative Powers As far as legislative competences are concerned, the Czech president may, independently of the government, exercise a legislative veto, which can be applied to all bills except constitutional ones. The veto must be applied within 15 days of the day that the statute was referred to the head of state (Art. 50, para. 1 CCR).7 The presidential veto is of a suspensive character in that it can be overridden by more than half of all members of the Chamber of Deputies.8 The constitution also mentions a rule where the president signs enacted statutes (Art. 62(i) and Art. 51 CCR), whose practical application led to several constitutional problems debated further in this book. The president also enjoys the right to refer statutes to the Constitutional Court for a review of their constitutionality.9 Furthermore, the president may ask the Constitutional Court for a decision about the conformity of international agreements (approved by parliament) with the constitutional order prior to their ratification by the head of state (Arts. 87 and 88 CCR; Act No. 182/1993 Coll., on the Constitutional Court, § 71a). The constitution also vests the president with a right to attend meetings of both parliamentary chambers, including their committees and commissions. Moreover, the president has the right to take the floor whenever s/he asks for it (Art. 64, para. 1 CCR). The president also has powers regarding foreign policy, although the power a) to represent the Czech Republic with respect to other countries and b) to negotiate and ratify international treaties10 (Art. 63, para. 1(a)

7 This provision is important as it led to a dispute over the way the period is counted. Moreover, the Constitutional Court had the final say in the dispute. In its judgement, the Constitutional Court dealt with the role of conventions (see Chapter 5 and judgement Pl. ÚS 33/97). 8 Therefore, the suspensive veto power is relatively weak since, for instance, in Poland,

the presidential veto might be outvoted by three-fifths of MPs at minimum. 9 This power is specified in the Act on the Constitutional Court (Act No. 182/1993, § 64). 10 The constitution allows the president to ‘delegate the negotiation of international treaties to the Government or, subject to the Government’s consent, to its individual members’ (Art. 63, para. 1(b) CCR). Such a delegation took place by way of the Decision

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and (b) CCR) is a shared power, meaning that the president’s decisions issued within these powers require a countersignature. Non-Legislative Competences The president exerts several important powers toward the government. Perhaps the most important and widely discussed one is concerned with the appointment of the prime minister and other ministers. It should be noted that this is the area that generated room for a couple of constitutional conventions, which are discussed in detail in Chapter 4. Exercising this competence, the president enjoys considerable discretion as the respective constitutional articles are relatively brief. The constitution stipulates that the president has the power to appoint the prime minister and, on his/her proposal, the remaining ministers (Art. 62(a) and Art. 68, para. 2 CCR). The considerable discretion of the president in the government formation, however, is constrained by other constitutional provisions. First, since the government is accountable to the Chamber of Deputies (not to the president) (Art. 68, para. 1 CCR), the president is required to take account of a parliamentary majority because the government should reflect the will of the Chamber of Deputies (e.g., Brunclík & Kubát, 2019, p. 64; Šimíˇcek, 2003, p. 163; Sládeˇcek et al., 2016, pp. 597–598). Second, and connected to the first, the government is obliged to ask for confidence in the Chamber of Deputies within 30 days after its appointment. If the government fails to win confidence, the president may appoint yet another cabinet. However, if this cabinet is defeated in the confidence motion in the Chamber of Deputies, the right to appoint the prime minister still formally rests with the president but now must be made on the proposal of the president of the Chamber of Deputies (Art. 68, para. 4 CCR). The degree of presidential discretion is much smaller as far as the appointment of ministers is concerned. The constitution says that the president appoints ministers only upon the prime minister’s proposal (Art. 68, para. 2 CCR) although there might be exceptional situations in which

of the President of the Republic No. 143/1993 Coll. This decision, which concerns lowerranking treaties (those which need no approval in parliament), was taken by the first Czech president, Havel, but all subsequent presidents have followed it so far. In addition, the president also delegates the negotiation of treaties which require parliamentary consent to the government in individual cases.

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the president could refuse to accept nominations.11 This issue has also sparked political and constitutional debates (Wintr et al., 2016, p. 158), including the notion of constitutional conventions. Thus, we shall get back to this question in Chapter 4. A similar perspective can be applied to the presidential power to recall the prime minister and ministers. The president can recall neither the prime minister nor ministers of his/her own volition. In fact, the presidential role is severely limited in this regard. The recall of the government (as a whole) is only possible in certain constitutional situations when the constitution expects the government’s obligatory demise, but the government fails to resign. An obligatory demise is required if the government12 is defeated in the motion of (no) confidence (Art. 73, paras. 2 and 3 CCR) and also at the end of the first (constitutive) meeting of the newly elected Chamber of Deputies. Thus, the power of the president to recall the government in these situations is a check in case the regular process of the government’s demise fails. As for the removal of individual ministers, it is conditioned upon the prior motion of the prime minister addressed to the president (Art. 73, para. 1 and Art. 74 CCR); therefore, the president cannot recall a member of the government of his/her own initiative. However, the actual performance of this function has been subject to debates, including references to constitutional conventions. There is one further power of the president toward the cabinet: the president wields the power to attend cabinet meetings and ‘ask for reports from the government and its members, and to discuss with the government or its members issues that are in their competence’ (Art. 64, para. 2 CCR). When it comes to non-legislative presidential powers toward the Chamber of Deputies, the president convenes the chamber’s sessions (Art. 62(b) CCR) and dissolves the Chamber of Deputies (Art. 62(c) 11 For example, the president could block a person who is in a conflict of interest described by the constitution (Art. 70) or there is a legal barrier to the appointment (Wintr, 2018, p. 93). Second, extremists and other persons posing a threat to a democratic character of the country could also be legitimately rejected by the president (cf., Šimíˇcek, 2003, p. 167). Finally, J. Kysela claims that the president might refuse to appoint those candidates who absolutely lack competence to become ministers, as well as those candidates who are unacceptable due to extremely serious moral deficiencies (cf., Novinky.cz, 2014; Hospodáˇrské noviny, 2019). 12 In contrast to the Czech constitution, the Slovak (Art. 116) and Polish (Art. 157) constitutions allow parliament to express a vote of no-confidence in individual ministers.

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CCR) (the Senate may not be dissolved). In this regard, the power of the president is contingent upon relatively strict conditions. In other words, the competence of the president to dissolve the Chamber of Deputies can hardly be conceived of as a countermeasure against the Chamber of Deputies. Instead, the dissolution power has been designed as a ‘safety valve’ measure to unblock a parliamentary deadlock (Brunclík, 2013; Bureš et al., 2012; Rasch, 2001, p. 32; Wintr, 2015). All in all, the president may (but is not obligated to) dissolve the Chamber of Deputies in 4 rare and specific situations.13 In the event that the Chamber of Deputies passes a motion for ‘self-dissolution’ by a three-fifths majority, the president is obliged to dissolve the chamber (Art. 35, para. 2 CCR). Alongside the above powers, the president wields several others. It is not our intention to introduce all of them since many are of a rather ceremonial nature, which provides little room for conventions (as characterised by their impact on the operation of the constitutional system). However, several appointment powers have led to political and constitutional disputes, involving the notion of conventions. First, the president may appoint members to the Bank Board of the Czech National Bank (Art. 62(k) CCR), which led to a constitutional dispute that was eventually submitted to the Constitutional Court. What is even more interesting is that the Constitutional Court used the concept of constitutional conventions in its ruling (Pl. ÚS 14/01; see also Chapter 5). Furthermore, the president appoints (among others) judges of the Constitutional Court with the Senate’s approval (Art. 62(e) and Art. 84, para. 2 CCR), the chief judge and vice chief judges of the Supreme Court (Art. 62(f) CCR), and the president and the vice president of the Supreme Control Office on the proposal of the Chamber of Deputies (Art. 62(j) and Art. 97, para. 2 CCR).

13 (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 on the basis of a proposal of the president of the Chamber of Deputies. (2) The Chamber of Deputies fails, within 3 months, to reach a decision on a governmental bill with the consideration that 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 3 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 convened to meet (Art. 35, para. 1 CCR). However, the president has so far never got the chance to dissolve the Chamber of Deputies given the very specific conditions under which the president may do so.

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Art. 63 of the constitution, which subjects presidential decisions to a countersignature of the prime minister (or another member of the government authorised to do so by the prime minister), includes further important appointments: judges and ambassadors (in the latter case, including their recall) (Art. 63, para. 1(e) and (i) CCR) where these appointments led to political and legal controversies involving the idea of constitutional conventions. The president may also ‘grant pardons or commute sentences imposed by courts and order that a criminal record be expunged’ (Art. 62(g) CCR) and ‘order that the criminal proceedings not be instituted or if it has been instituted, that it be discontinued’ (Art. 63, para. 1(j) CCR). The president also has the right to issue amnesties (Art. 63, para. 1(k) CCR). Last but not least, the president is the commander-in-chief of the armed forces, and receives heads of diplomatic missions (Art. 63, para. 1(c) and (d) CCR), appoints and promotes generals (Art. 63, para 1(g) CCR), and confers and awards state decorations (Art. 63, para. 1(h) CCR). 3.2.3

Constitutional Amendments

The 1992 constitution has been characterised by a great deal of stability. In total, there have been 8 direct amendments so far. However, the amendments did not result in a major shift in the design and operation of the Czech constitutional system. In 2009, the constitution was amended by a constitutional statute (Constitutional Act No. 319/2009 Coll.) that provided for the possibility of the abovementioned self-dissolution of the Chamber of Deputies by three-fifths of the MPs (Art. 35, para. 2 CCR). Probably the most important and visible change occurred in 2012 when the direct election of the president was introduced (for details, see Antoš, 2011; Wintr et al., 2016). The president was originally elected at a joint session of both chambers of parliament, with the process taking up to 3 rounds. However, the 2008 election of the president by MPs and senators resulted in a scandalous form with repeated election and public threatening to some legislators. Therefore, the public pressure supported the enactment of the direct election in 2012. As of the 2013 presidential election, the president is elected via popular vote (Art. 54, para. 2 CCR) by a two-round system. The constitution stipulates that the candidate who has received more than half of the votes in the first round is elected president. If none of the candidates meet this

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condition, the second round is held 2 weeks later. The second round is a run-off election in which the 2 most successful candidates of the first round participate (Art. 56, paras. 2–4 CCR). The amendment proposed by the government was not intended to strengthen the president in terms of competences. This clearly follows from the government’s report advocating the amendment bill, which states that no change in competences takes place and that ‘the present model established by the Constitution’ is maintained. The report also stated that the amendment shall result in ‘greater participation of citizens in public matters’. The government argued that the Czech general public (in line with opinion polls) favoured direct elections (Chamber of Deputies, 2011a). In the parliamentary debate on the amendment, the then-minister of justice, Jiˇrí Pospíšil, made it clear that the amendment was not supposed to change the operation of the Czech parliamentary regime: The Czech Republic, which is in principle a parliamentary republic, may have a directly elected president without it being necessary to change the powers of individual constitutional bodies of the Czech Republic. This is based in principle on comparative experience, where a similar system of the division of powers as in the Czech Republic works, for example, in Austria, Slovakia, and many other countries that are parliamentary democracies where the president does not have a more significant or let us say dominant position. Therefore, the proposition—that in case of a change of election of the president, in case of the introduction of direct election, there should be an a priori change in powers in order to strengthen the position of the president—does not apply. If this happened, we would shift from a parliamentary democracy to a semi-presidential system, which is by no means the intention of the coalition government. (Chamber of Deputies, 2011b)

Most Czech experts were highly critical of the amendment (e.g., Brunclík & Kubát, 2019). Even long before the constitutional change, the experts were in agreement that initiatives to introduce direct elections would be rather harmful for the Czech parliamentary regime (Kubát, 2003; Kysela, 2008, 2013), and even though all the excesses and conflictual behaviour of President Zeman may stem from multiple causes, the direct election may also be blamed for Zeman’s numerous controversial steps.

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The 2012 amendment has also changed the impeachment procedure (Constitutional Act No. 71/2012 Coll.). The original wording of the constitution only mentioned ‘high treason’ as a cause for the president to be impeached (the definition of high treason was stipulated in the Act on the Constitutional Court). The amended constitutional provision now specifies ‘high treason, gross violation of the Constitution or other part of the constitutional order’ (Art. 65, para. 2 CCR). However, the process of presidential impeachment was amended as well. Whereas originally only the Senate was empowered to initiate the impeachment procedure, the amendment stipulates that the initiative must be supported by the Chamber of Deputies. Finally, whereas the original provision required only a simple majority (of present senators), a three-fifths majority (of present senators and of all members of the Chamber of Deputies) is now needed to approve of the charge (Art. 65, para. 3 CCR). Only after both parliamentary chambers approve the initiative does the Constitutional Court decide over the constitutional charge against the president (Art. 87, para. 1(f) CCR). If the Constitutional Court rules that the president is guilty, the president is removed from office and loses eligibility in regaining this post in the future.14 Also, the amendment includes contradictory provisions. Whereas the popular election has naturally boosted the legitimacy of the president, the head of state remains politically and legally unaccountable for the performance of the presidential office (Art. 54, para. 3 CCR), with the

14 So far, there have only been a select few attempts to remove the president. Some

of the initiatives shipwrecked in the Senate. In 2004, an initiative was directed against President Klaus for jeopardising the proper functioning of the Constitutional Court by refusing to appoint any new constitutional judges. In 2015, the Senate debated an initiative to remove President Zeman for his clearly pro-Russian public statements following the Russian annexation of Crimea (iDNES, 2015). In 2017, the Senate was ready to file a constitutional charge against president Zeman for his earlier attempts to block recalling Andrej Babiš (the then-minister of finance) from the cabinet on the proposal of Prime Minister Bohuslav Sobotka. Zeman eventually recalled Babiš and the Senate did not have to proceed further (Aktualne, 2017). The 2019 initiative to remove President Zeman from office was passed in the Senate, but the Chamber of Deputies turned it down (iDNES, 2019). Only in 2013 did a constitutional charge against the president reach the Constitutional Court. The Senate argued that President Klaus committed high treason by a) refusing to sign 2 European treaties, b) issuing an amnesty decision that halted dozens of fraud prosecutions, and c) refusing to appoint judges. However, the Constitutional Court discontinued the proceedings because there were no grounds to consider the case as Klaus was no longer in office (Pl. ÚS 17/13).

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only exception from legal unaccountability being the impeachment procedure, which, however, is now more complicated and burdensome (Wintr, 2015).

3.3

Slovakia15

Slovakia became an independent country for the first time in 1993.16 However, the Slovak presidency was not created from scratch at that point but carried on the traditions of the Czechoslovak presidency. Slovakia may now draw from a more than a century-long tradition of presidency. All the constitutional provisions that were passed in Slovakia since 1918 put the president at the top of the institutional architecture (Procházka, 2019, p. 16). However, the Slovak presidency is full of contradictions, as the tradition included periods of democracy (1918–1938), a non-democratic quasi-sovereign state (1939–1945), and the communist dictatorships (1948–1989) (Malová, 2001, p. 362; cf., Orosz, 2013, pp. 3–4). The first source of tradition is clearly the interwar period (1918–1939) when Slovakia was a part of the Czechoslovak state (see Giba et al., 2019, pp. 228–229). However, in contrast to the Czech Republic, which proudly refers to the era of interwar Czechoslovak democracy, Slovak political elites and constitution-makers appear far more hesitant toward the Czechoslovak state (cf., Procházka, 2019, p. 15). Whereas the Czech constitution refers to the Czechoslovak state in its preamble, the Slovak constitution (The Constitution of the Slovak Republic, CSR) instead invokes remote historical legends such as that of ‘Great Moravia’,17 which was a blueprint of modern statehood linked to ‘the spiritual bequest of Cyril and Methodius’ (Cibulka, 2008, p. 332; Malová, 2001, p. 355). The constitution-making process in Slovakia was highly influenced by the ideas of an independent Slovak nation (cf., Pešeková, 2011, p. 87). The lukewarm approach of the Slovak political elites to the Czechoslovak state was caused, among other things, by the interwar fiction of one Czechoslovak 15 Some of the following paragraphs have been adopted (and further adapted)

from our previous text (Brunclík & Kubát, 2019). 16 We leave aside the period of 1939–1945, when Slovakia was formally an independent state but was a de facto puppet country subordinated to Nazi Germany (Kamenec, 1992, pp. 37–55). 17 Great Moravia was a state of the Early Middle Ages that existed on the current territory of the Czech Republic, Slovakia, and beyond.

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nation. On the one hand, the fiction allowed Czech political elites to show that the nation greatly outnumbered the other national yet numerous minorities (notably Germans, but also Hungarians, Poles, etc.). On the other hand, the concept prevented the Slovak nation from applying the right of self-determination. As a result, ‘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’ (Mathernova, 1992, p. 474). Second, in 1939, the so-called Second Czechoslovak Republic (1938– 1939), which followed the annexation of some large border territories of Czechoslovakia by (not only) Germany in 1938, came to an end. Consequently, the Protectorate of Bohemia and Moravia was established under Nazi occupation in the contemporary territory of the Czech Republic.18 Slovakia became a formally independent state, but heavily dependent on Germany. The 1939 constitution established the Slovak president ‘as a strong autocratic leader’ (Malová, 2001, p. 362). However, for obvious reasons related to the non-democratic character of the Slovak state, this era (1939–1945) could hardly become a legitimate source of inspiration for democratic Slovakia. Third, the Czechoslovak state was liberated in 1945 and experienced the short-lived, semi-democratic, and so-called Third Czechoslovak Republic (1945–1948). However, the country turned into a communist, non-democratic state in 1948, and the communists retained power in Czechoslovakia until 1989. Although this specific non-democratic era could not be regarded as a completely positive source of inspiration, the 1960 constitution and the Constitutional Act No. 143/1968 Coll. on the Czechoslovak Federation, including their post-1989 amendments, still affected the 1992 Slovak constitution. Slovak authors only differ as to which of the abovementioned documents were more influential: whether the 1920 Czechoslovak Constitution, the 1960 constitution, or the 1968 ˇ c et al., 2012, Constitutional Act on the Czechoslovak Federation (Ciˇ p. 44; Giba, 2011, pp. 101–102; Malová, 2001, p. 348; Orosz, 2013, pp. 3–4). On 1 January 1993, 2 newly independent states were established following the peaceful dissolution of the federal state. Although the first 18 However, significant portions of the territory inhabited by ethnic Germans became parts of Germany.

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drafts of the new Slovak constitution were prepared in 1990–1992, i.e., shortly after the communist dictatorship broke down in November 1989 (Malová, 1994, 2001; Orosz et al., 2009; Orosz, 2012, pp. 37–38), the final version of the Slovak constitution was adopted in September 1992, less than 3 months after Vladimír Meˇciar’s party, Movement for a Democratic Slovakia (Hnutie za demokratické Slovensko, HZDS),19 received an elective victory (Henderson, 2002, p. 42). At that time, Slovakia still was part of the Czechoslovak Federation, but the 1992 election opened the way for the dissolution of the federal state. The Slovak constitution was hastily elaborated by experts of the ruling HZDS without seeking broader political consensus. The quick dissolution of the Czechoslovak Federation, together with the urgent need to adopt a new Slovak constitution, ‘may explain why Constitution makers in Slovakia were poorly prepared’ (De Raadt, 2009, p. 329; cf., Orosz, 2013, p. 4; Procházka, 2018; cf., Giba et al., 2019, p. 229). The Slovak constitution included a number of vague constitutional provisions, some of which pertained to the presidents, which resulted in a number of intraexecutive conflicts (Malová, 2001, p. 362; cf., Horváth, 2014, p. 75). Many Slovak constitutional experts displayed their criticism toward particular constitutional provisions (cf., Kresák, 1994; Nikodým, 2012; Orosz, 2013; Valko, 1994), some of which are analysed below. Most of the imprecise and problematic constitutional provisions were fixed with subsequent constitutional changes (Orosz et al., 2009, pp. 35–116; Tóthová, 2008, p. 51, see Section 3.3.3).20 3.3.1

Position of the Slovak President

The Slovak presidency is included in the executive power. The position was probably Czechoslovak constitution, which became a Slovak and Czech constitutions (Svák &

constitutional chapter on readopted from the 1920 model for both the 1992 Cibulka, 2009, p. 641;

19 HZDS was a Slovak political party that existed between 1991 and 2014. From ˇ 2003, it was labelled as ‘Peoples’ Party—Movement for a Democratic Slovakia; Ludová strana—Hnutie za demokratické Slovensko, LS- HZDS). 20 Criticism of the deficiencies of the Slovak constitution has been widespread. In 2018, at the twenty-fifth anniversary of the Slovak state, a Slovak constitutional expert and politician, Radoslav Procházka commented on the constitution, stating that it ‘has 25 years, but the wounds of a 60-year-old man’ (Procházka, 2018, p. 13).

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Giba et al., 2019, p. 229). The inclusion of the president in the executive branch has often been criticised and debated (Bröstl et al., 2015; Cibulka, 2008; Kresák, 1996; Nikodým, 2012; Giba, 2011; Giba et al., 2019, p. 229; Orosz, 2013; Procházka, 2019; Svák & Cibulka, 2009, pp. 640–641). For example, Kresák (1994, p. 320) points out that from the inclusion of the president in the executive branch, it may be inferred that the president and the government share executive powers and that they are both subject to the control of the National Council in the sense of their accountability.21 Given the fact that presidential powers do not include mere executive powers, some scholars suggest that presidential competences should be developed toward pouvoir neutre (neutral power, resp. president as an arbiter22 ) or even that the presidential position should be delineated in a special constitutional chapter (Orosz & Šimuniˇcová, 1998, p. 59; Svák & Cibulka, 2009, p. 641; cf., Krošlák et al., 2016, p. 513; Procházka, 2019, p. 19). On the other hand, parliamentary regimes have traditionally been characterised by overlap and power-sharing between the executive and legislative branches. Indeed, the role of 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 mutual influence of and coordination between the government and the president (see Orosz, 2009, p. 45, 115–116).23 21 Unfortunately, this kind of interpretation was not solely confined to academic debates. In the first half of the 1990s, Slovak politics was characterised by bitter conflicts between Prime Minister Vladimír Meˇciar (HZDS) and President Michal Kováˇc, who was highly critical of Meˇciar’s illiberal policies that cast doubts on the rule of law and democracy in Slovakia. Even though Meˇciar’s coalition cabinet commanded a parliamentary majority, it lacked the three-fifths majority to impeach the president. Hence, in June 1995, Meˇciar, in a desperate attempt, resorted to a recall of the president through a vote of no-confidence although it had neither constitutional backing nor legal implications (Fisher, 1995). 22 For an analysis of this concept, see Domin (2013). 23 This interpretation was also confirmed by the Slovak Constitutional Court in 1996:

‘Although both parts of the executive in the Slovak Republic (president and government) are separated, they cooperate at the same time and they are mutually interlinked through joint execution of their constitutional competences’ (I. ÚS 7/96). On the other hand, with regard to constant grave political clashes between President Kováˇc and Prime Minister Meˇciar in the 1990s, the above constitutional statement sounds more like a wish than actual political practice (Orosz & Šimuniˇcová, 1998, p. 60).

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The popular election of the president introduced to the Slovak constitution in 1999 made the president independent of parliament, which was entitled to elect the president before the 1999 amendment. Their relationship is not characterised by any type of subordination. Instead, they are equal, which was also confirmed by the Constitutional Court (Pl. ÚS 4/2012). The Slovak constitution includes a peculiar provision that implicitly suggests that the president is politically accountable to parliament.24 The National Council may remove the president by a motion supported by a three-fifths majority (arts. 84 and 106 CSR; Malová, 2001, p. 363). Removing the president, however, is conditioned by a referendum that follows a parliamentary motion. Some scholars are highly critical of these constitutional provisions that make the president politically accountable to the National Council, which is seen as ‘unacceptable in the parliamentary system’ (Valko, 1994, p. 316). Apart from this method of removing the president from office, there are comparatively more common provisions regulating the impeachment process. The president may be prosecuted only for ‘a willful infringement of the Constitution or for treason’ (Art. 107 CSR). The impeachment can be initiated by a three-fifths majority in the National Council. The final say about the president is then in the hands of the Constitutional Court (Art. 107 CSR; see also Cibulka & Domin, 2018, pp. 65–66). None of the procedures to remove the president have ever been initiated to date. 3.3.2

Constitutional Competences

Legislative Powers The Slovak president is not particularly strong in terms of legislative powers. The president is endowed neither with decreeing power nor with the power of legislative initiative. Most of the president’s legislative powers are independent. First, the president has veto power. 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, para. 1(o) and Art. 87 CSR). However, the National Council may override the veto by an absolute majority of all deputies (like in the Czech Republic). 24 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, p. 38).

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The Slovak president is allowed to independently refer statutes to the Constitutional Court (Art. 125(a) CSR). The head of state is also endowed with the power to ask the Constitutional Court for a decision on the conformity (to the constitution or to a constitutional statute) of a negotiated international treaty (Art. 102 , para. 1(b) CSR). As of 2001, the Slovak president has the power to ask the Constitutional Court to decide on whether the subject-matter of a referendum is in conformity with the constitution or a constitutional statute (Art. 95 CSR). Furthermore, in line with the Slovak constitution, the president represents Slovakia externally, and the head of state has the right to negotiate and ratify international treaties.25 The president may transfer the power to negotiate international treaties to the government (Art. 102, para. 1(a) CSR), which the Slovak president (Schuster) actually did in 2001, and this decision has been valid until the present day (Procházka, 2019, p. 41). There is yet another legislative power: the president may declare a referendum (Art. 102, para. 1(n) CSR). However, the discretion is severely limited by the fact that the president may 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 CSR). Non-Legislative Powers As far as non-legislative competences are concerned, the president makes a number of appointments. By far the most important competence regarding appointments is related to the government formation process. The respective constitutional provision is very brief, as it stipulates that the president ‘appoints and recalls the prime minister and other members of the Government of the Slovak Republic, entrusts them with the management of ministries and accepts their resignation’ (Art. 102, para. 1(g) CSR). As we will discuss in Chapter 4, this constitutional provision helped create one of the most solid constitutional conventions in the Central European region. It should be noted that the president is not formally and explicitly constrained in performing this appointment. Still, there are 3 other particular constitutional provisions that limit presidential discretion and force the president to follow the parliamentary rules of the game.

25 The Czech president has almost precisely the same power, but this is a shared power as the countersignature of a government member is required (Art. 63, para. 1(b) and para. 3 CCR).

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First, the president is required to ‘ensure the regular operation of constitutional bodies by his/her decisions’ (Art. 101, para. 1 CSR).26 Second, the government which has been appointed by the president is obliged to present itself to the National Council, submit its government programme, and ask the National Council for confidence within 30 days of its appointment (Art. 113 CSR). Third, the government is collectively responsible to the National Council, which may remove the government anytime through a vote of no-confidence (Art. 114 CSR). The president also recalls the prime minister and other ministers (Art. 102, para. 1(g), Art. 115 and Art. 116 CSR). Here, the degree of presidential discretion is much more limited in comparison to appointments of a premier and ministers. The president is obliged to recall the government if the National Council defeats the cabinet in a motion of (no) confidence (Art. 115 and Art. 116, para. 6 CSR). The cabinet is expected to remain in office, and 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, para. 2 CSR); however, the remit of such a government is constrained, and the cabinet may execute its powers only upon the president’s approval in some areas (Art. 115, para. 3 CSR). The president is also obliged to recall a minister to whom the National Council has expressed no-confidence (Art. 116, para. 3 CSR). The president also recalls ministers as suggested by the prime minister (Art. 116, para. 4 CSR). If a minister has been recalled, the president can decide which minister will temporarily be in charge of matters previously administered by the recalled minister (Art. 116, para. 7 CSR). The president possesses one more power which is directly related to the government—‘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, para. 1(r) CSR). The president further has the power to dissolve the National Council. However, the president does so only in specific cases.27 In addition, the

26 Interestingly enough, this provision resembles the wording of the French constitution, which provides that the president ‘shall ensure, by his arbitration, the proper functioning of the public authorities and the continuity of the State’ (Art. 5, Constitution of the French Republic). 27 The president may dissolve the National Council if (1) the government programme submitted to the Council has not been approved within 6 months after its appointment, (2) the National Council ‘failed to pass within three months a government bill that the

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president is not allowed to use this power ‘during the last six months of his term, during war, state of war, or martial law’ (Art. 102, para. 1(e) CSR). The president has a shared non-legislative competence that was subject to long debates that even included conventions. The head of state may grant amnesty and individual pardons (Art. 102, para. 1(j) CSR). To execute these powers, the president needs approval from the prime minister or a minister (Art. 102, para. 2 CSR). The president also plays an important role in a number of appointments, which are generally designed as a shared power since the president needs to cooperate with other bodies. One of the most debated presidential appointments28 (alongside the government formation) was related to the constitutional provision that allows the president to appoint and recall judges of the Constitutional Court, regular judges, chief justices and vice-chief justices of the Supreme Court of the Slovak Republic, General Prosecutors, and 3 members of the Judicial Council (Art. 102, para. 1(s) and (t) CSR). The Constitutional Court consists of 13 judges appointed for a 12year term (Art. 134, paras. 1 and 2 CSR). The president appoints the judges from among candidates elected by the National Council, which is obliged to elect several candidates whose number is twice as big as the number of the judges that are to be appointed (Art. 134, para. 2 CSR). This constitutional provision also stipulates that if the National Council fails to elect the required number of candidates within 2 months from the expiry of the term of office of the previous judges or within 6 months from the end of the term of the previous judges for other reasons, the president may appoint new judges. Another appointment in which a constitutional convention was subject to debate was concerned with the General Prosecutor. The constitution government tied with a vote of confidence’, (3) the National Council ‘was incapacitated to make decisions for more than three months, although the session was not interrupted and during that time it was repeatedly called for sessions’, and, (4) the session of the National Council ‘was interrupted for more than permitted by the Constitution’. Finally, the president shall dissolve the National Council if the voters reject the impeachment of the president in a referendum (Art. 102, para. 1(e) CSR). 28 Here, we leave aside the power to appoint and recall ‘the heads of central bodies and higher-level state officials and other officials in cases laid down by statutes’, the power to ‘appoint and recall university rectors, the power to appoint university professors and to appoint and promote generals’ (Art. 102, para. 1(h) CSR).

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only stipulates that the General Prosecutor is appointed and recalled by the president on the proposal of the National Council (Art. 150 CSR). Further details are specified in Act No. 153/2001 Coll. on Public Prosecution, which states that the general prosecutor is elected for 7 years. The same person cannot serve for more than one term in office (Act no. 153/ 2001, s. 7, para. 2). Some of the key appointments related to the notion of constitutional conventions were subject to the scrutiny of the Slovak Constitutional Court (see Chapter 5). 3.3.3

Constitutional Amendments

As mentioned above, a number of imprecise provisions and structural problems of the 1992 constitution (e.g., Orosz & Šimuniˇcová, 1998, p. 59; Horváth & Juhás, 2012, p. 115) led to constitutional amendments that were intended to fix the problems and blind spots of the constitutional text, particularly in several places that provided no clear guidelines on how to proceed. Also, many of these amendments, to a large extent, were a reaction to the previous era of illiberal democracy in Slovakia in the 1990s (cf., Bútora et al., 1999; Szomolányi, 1999). In total, Slovakia’s constitution has been amended 20 times so far (for the overview of some ˇ c et al., 2012, p. 44; Giba, 2011; Orosz, 2012, of the amendments, see Ciˇ pp. 41–46; Drgonec, 2019, pp. 1276–1278), but only 5 amendments are relevant for the position of the president (1998, 1999, 2001, 2011, and 2020). The position of president was after all subject to most changes out of all other constitutional bodies (Horváth & Juhás, 2012, p. 115). Still, despite the amendments, scholars are still critical to numerous constitutional provisions allowing for various interpretations and subsequently are conducive to constitutional conflicts (cf., Giba et al., 2019, p. 231). The 1998 amendment (Constitutional Act No. 244/1998 Coll.) affected the president only marginally. It added a provision that the president may be elected on the proposal of at least 8 deputies (at that time, the president was elected by the National Council, i.e., parliament) into the original constitutional text. The second change of the 1998 amendment transferred some of the presidential competences29 to the speaker of the National Council in the event that the presidential office was vacant 29 To appoint and recall a prime minister and other members of the government; to appoint and recall high state officials; to appoint professors and rectors of universities; to appoint and promote generals (Art. 102, para. 1(f) and (g) CSR).

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(Art. 105, para. 1 CSR). This amendment was adopted following the National Council’s repeated failure to elect a new president. The failure created a risky scenario where some presidential competences could not be performed at all, which might have led to a constitutional deadlock (Giba, 2011, p. 108; cf., Spáˇc, 2013, p. 125). The second amendment passed in 1999 (Constitutional Act No. 9/ 1999) is much more significant from the perspective of the president (for details, see Giba, 2011). The amendment has been designed to fix some of the weak points of the original constitutional text by clarifying the relationship between the president and other constitutional institutions. The authors of the amendment argued that the original constitution deviated from a standard parliamentary regime in several ways, and the amendment was seen as a tool to approximate the Slovak constitutional system to the model of a parliamentary democracy (National Council, 1998, p. 2). They further argued that the original constitution left room for constitutional conflicts between the president and prime minister and made the election of the president too rigid (the National Council was required to elect the president by a three-fifths majority), as exemplified by the fact that immediately after the first Slovak president, Michal Kováˇc, left office, the National Council repeatedly failed to elect a new president. As a result, the presidential office was vacant for more than a year (from early March 1998 until June 1999) (cf., Spáˇc, 2013, p. 125; Cibulka & Domin, 2018, pp. 51–52). They also argued that the parliamentary election of the president made the president more likely to be a central figure in the political battles between parliamentary parties. Hence, they claimed that the inevitable condition for an appropriate president is his ‘above-partisan position and lack of political accountability’ (National Council, 1998, p. 2; cf., Giba, 2011, p. 109). Interestingly enough, supporters of the amendment hoped that the popular election together with other changes to the constitution would yield a politically neutral (above-partisan) president, who is expected to facilitate the smooth working of the Slovak parliamentary regime (see also Giba, 2011, p. 112). So how was the constitution changed with the 1999 amendment? The most visible one provided for the popular election of the president. The president is now elected in a direct popular election by a two-round system where the winning candidate is required to receive more than half of the votes (Art. 101 CSR). Again, this change was not conceived of as a way to make a more powerful president, but it was instead a reaction

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to the overly rigid constitutional provision that made the election of the president difficult under the previous system (Giba, 2011, pp. 102–104; National Council, 1998). So far, it seems that the increased legitimacy of the president has not led to a more active and stronger position of the president in Slovak politics. Second, the amendment incorporated the idea that the president ‘through his decisions ensures due performance of constitutional bodies’ (Art. 101, para. 1 CSR). Third, given the disputes over whether the president is obliged to appoint and recall cabinet members or is allowed to refuse to appoint them, Art. 111 of the constitution was changed. However, this change may not be easy to notice as the change only affected the linguistic (perfective/imperfective) aspect of the respective verbs of the provision. The original wording of the provision included the term ‘vymenúva a odvoláva’ (appoints and recalls) in reference to cabinet members on the proposal of the prime minister, which is an imperfective aspect of the 2 verbs. Many observers and politicians interpreted this as the president being able to reject the prime minister’s proposal to change cabinet members. Moreover, diverging interpretations of the provision led to a conflict between President Kováˇc and Prime Minister Meˇciar over recalling Minister of Foreign Affairs Milan Knˇ ažko (see Janˇcura, 2014; Cibulka & Domin, 2018, p. 58). The conflict was even submitted to the Constitutional Court for a resolution (I. ÚS 39/93). The 1999 provision changed the aspect from imperfective to perfective. The current constitution says that the president ‘vymenuje a odvolá’ (appoints and recalls) cabinet members on the proposal of the prime minister. Thus, the amendment was meant to limit the degree of presidential discretion, and most scholars now argue that the president is obliged to comply with the prime minister’s request to recall government members (Kanárik, 2009, p. 237; Orosz et al., 2009, p. 118; for a critical view of this interpretation see Giba et al., 2019, p. 241–242). The amendment can also be seen as a way to meet the conclusions of the 1993 Constitutional Court resolution (I. ÚS 39/93). Fourth, the legal regulation of applying the presidential veto was subject to change. Originally, the president was allowed to veto not only ordinary but also constitutional statutes (Bröstl et al., 2015, p. 252; Cibulka & Domin, 2018, p. 57). The latter veto could be overridden by an at least 60 per cent majority. This threshold was not set by the constitution but was part of the National Council’s standing orders (Horváth, 2005, p. 19). In addition, the president was obliged to veto a bill at

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the government’s request (Orosz & Šimuniˇcová, 1998, p. 58; Cibulka & Domin, 2018, p. 57).30 The 1999 constitutional amendment removed this provision from the constitution as well as the right of the president to veto constitutional bills (cf., Giba, 2011, p. 108). Fifth, the amendment eliminated a non-systematic provision from the constitution that allowed the president to be present at meetings of the National Council (Art. 102 CSR), to submit draft bills and proposals for other measures (Bröstl et al., 2015, p. 271), and to attend as well as preside over cabinet meetings, which was, according to the argumentation of the proponents of the amendment, ‘a potential source of a constitutional crisis and disputes between the prime minister and the president’ as well as ‘in direct contradiction with the set of major constitutional relations among supreme state bodies in the parliamentary form of government’ (National Council, 1998; cf., Giba, 2011, p. 108). Sixth, the amendment enlarged the range of situations in which the president may dissolve the National Assembly (see above).31 This change was not designed to give the president a greater role in the dissolution process. Instead, the dissolution provisions are understood as safety valves to unblock a deadlock situation and facilitate early elections (cf., Rasch, 2001, p. 32; Giba, 2011, p. 108; Brunclík, 2013). Seventh, the amendment also made it more difficult to recall the president. Whereas the original provisions of the 1992 constitution prescribed that the National Council can remove the president from office by a threefifths majority, the 1999 change requires that the parliamentary motion must be supported by more than half of legitimate voters in a referendum in order for the president to be recalled (Art. 84, para. 4 and Art. 106, paras. 1 and 2 CSR). Finally, the amendment introduced the new concept of a countersignature for some presidential decisions (Art. 102, para. 2 CSR) by the prime minister or a government minister. This concept is deemed to underline

30 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, p. 316). 31 The original provision allowed the president to dissolve the National Council only if the government policy declaration had not been approved 3 times within 6 months after the elections. The president was also obliged to consult the chairman of the National Council prior to the dissolution of the National Council (Art. 102 CSR).

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the idea of the lack of presidential responsibility because, in these areas,32 the responsibility for presidential decisions is borne by the government (for an analysis see Drgonec, 2019, p. 1278). In some respects, the position of the president was strengthened by the 1999 amendment (shifting from parliamentary to popular elections for the president, who receives direct democratic legitimacy). However, the president was weakened by the limitation of presidential competences in some other areas (veto powers, attendance at cabinet meetings, countersignature). The overall position of the president did not change principally as the purpose of the amendment was not to change powers of the president but rather to give more precision to several constitutional provisions and eliminate some problematic and potentially conflict-ridden situations that might occur. The third amendment was adopted in 2001 (Constitutional Act No. 90/2001 Coll.). One of the changes affected the question of the relationship between the president and the government because the original Slovak constitution was unclear in this regard (Kanárik, 2009, p. 232). Originally, the government was defined as ‘the highest body of executive power’ (Kresák, 1994, p. 320). This adjective caused interpretational difficulties in Slovakia (cf., Orosz & Šimuniˇcová, 1998, p. 59; Svák & Cibulka, 2009, p. 641),33 and thus the original term ‘highest’ was replaced with ‘supreme’ in the 2001 amendment (Art. 108 CSR). The president was given the right to appoint judges for an unlimited term in office on the proposal of the Judiciary Council, a newly established body whose 3 members the president was allowed to appoint as well as to recall (Art. 141a, para. 2(d) CSR). Furthermore, the amendment affected the process of the presidential appointment of judges to the Constitutional Court. However, this particular constitutional provision caused disputes and was amended 9 years later. Therefore, we discuss 32 The president ‘shall receive, appoint and recall heads of diplomatic missions’, grant amnesty, and ‘shall be the commander in chief of the armed forces’ (Art. 102, para. 1(c), (j) and (k) CSR). 33 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 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 … the 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’ (I. ÚS 39/93).

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both amendments below. The 2001 amendment also regulated situations in which the presidential office became vacant (for details, see Fridrich, 2008, pp. 229–234; Art. 105 CSR). The presidential competences are now divided into 3 groups: competences executed by the prime minister, competences executed by the speaker of the National Council, and competences that are not transferred, which means that they cannot be executed if the presidential office is vacant (see also Giba, 2011, p. 109). The 2011 amendment provides guidelines for a situation where the government is defeated by the National Council, either in a motion of no-confidence or a motion of confidence. The original wording of the Slovak constitution was unclear and caused interpretational difficulties. Thus, the 2011 amendment was intended to fill in this gap. However, the way the original problem was solved actually created yet another loophole (see Giba, 2011, pp. 109–112). In the event that the government fails a motion of (no-) confidence, it is authorised by the president to execute its functions until a new government is formed. However, some of the powers of the government may only be exercised with the approval of the president. This new provision might be subject to criticism as it incorporates a new type of relationship between the government and president which is inconsistent with the hitherto logic of these relationships. Whereas the president is not politically responsible for his actions (cf., Posluch & Cibulka, 2008, pp. 28–29; Giba, 2011, pp. 110–111), which is after all underlined by the countersignature provision in the constitution, the new provision provides for an ‘inverse’ countersignature because the politically unaccountable president is expected to provide approval for the government’s policy in several areas (Art. 115, para. 3 CSR). If the president does not provide his consent, the government is not allowed to act even if the National Council supports such steps.34 In addition, the amendment has 34 Another question that seems unanswered is who bears responsibility for steps taken by the caretaker government (which resigned) when their decision was approved by the unaccountable president. Furthermore, the government may not act in situations which would require quick action: the government, with a limited scope of action, is not allowed to make decisions about important economic and social policy issues (Art. 119(d)) as well as about important domestic and foreign policy issues (Art. 119(i)). There is yet another weak point in the amendment: can the government with a limited scope of action execute its functions for which it needs the approval of the president when the presidential office becomes vacant (for a debate see Giba, 2011, pp. 111–112)?

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led scholars to consider a highly unlikely, yet still feasible, situation in which the president appoints ‘a presidential cabinet’, i.e., the cabinet that originates with the president, lacks support of the National Council, but it performs its functions (see Zelenajová, 2016; cf., Domin, 2020, pp. 147– 150). However, scholars claim that such cabinets are not in line with the Slovak constitution (Drgonec, 2018, pp. 337–340). The 2020 amendment affected the position of the president in a very limited way. The amendment made yet another change to the process of appointing judges to the Constitutional Court. The original provision (Art. 134 CSR) provided for 10 judges of the Constitutional Court to be appointed by the president for a seven-year term in office from among 20 nominees approved by the National Council. The 2001 amendment (Constitutional Act No. 90/2001 Coll.) increased the number of judges by 3, and the term of office was then set to 12 years. Also, the 2001 amendment stipulated that the National Council ‘proposes twice as many candidates for judges’ as the president is to appoint (Art. 134, para. 2 CSR; Constitutional Act No. 90/2001). However, given interpretational problems and disputes over the application of this provision (see also Chapters 4 and 5), the constitution was changed once more in 2020 (Constitutional Act No. 422/2020 Coll.). The amendment specified that the National Council votes on the candidates by public ballot after hearing the candidates. If the National Council does not elect a sufficient number of candidates, the president may appoint judges of the Constitutional Court from among those candidates elected by the National Council (Art. 134, para. 2 CSR). All in all, the most important constitutional amendments were not marked by a systematic effort to change the position of the president in the Slovak constitutional systems. Whereas some changes increased presidential powers, some other changes work in the opposite direction (Drgonec, 2019, p. 1277; Procházka, 2019, p. 104).

3.4

Hungary

Aside from some short periods, Hungary was not a republic until 1989. Even after the dissolution of the Habsburg Empire, which was replaced not only in Czechoslovakia and Poland but also in Austria by a republic, Hungary formally remained a monarchy (Law No. XLVII. of 1921); in this respect, it revived its uncodified historical constitution relying on mediaeval and religious-legal doctrines. Although a new king was never

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crowned and the powers of the head of state were exercised by a regent, all formalities of a monarchy lingered until the end of the Second World War (cf., Dobos et al., 2013, p. 78). On 20 February 1946, a republic was proclaimed by the so-called ‘Small Constitution’ with Act I of 1946 concerning the form of the state of Hungary (Föglein, 1994; Horváth, 2017; Schweitzer, 2017). However, the powers and the status of the president were the result of political calculations rather than of a rational constitutional discussion. Due to the popular support of the Independent Smallholders’ Party, its leader Zoltán Tildy was expected to be elected as president; consequently, the Communist Party was adamant to curtail the powers of the presidents and preferred them to have a fairly representative status (Föglein, 2005). Although the achieved compromise gave preference to the interests of the Communist Party, the president nonetheless kept some of the classic powers of the monarchical tradition, primarily the appointment of the prime minister. Moreover, the president, at least formally, exercised executive power via the cabinet being responsible to the National Assembly, which also meant that the president was the head of the executive branch (Varga et al., 2015, p. 155). This period was short-lived, and there was thus a meagre amount of time and practical experience with the new institutions: the president vetoed a legislative act only once and likewise granted a pardon also only once (Föglein, 2005). In line with other Central European countries, Hungary transferred to a one-party communist state in 1947/1948 (Westad, 2017, 71–98). Tildy was forced to retire on 31 July 1948, and a new Stalinist constitution was enacted in 1949. Defining Hungary as a ‘people’s republic’ and copying the Presidium of the Supreme Soviet, a new form of government was introduced with a collective head of state (cf., Dobos et al., 2013, p. 78). During the round-table talks in 1989, the presidency was fiercely struggled over. Although the Act of 1946 proclaiming the republican form of the state was seen as a common baseline, the actual negotiations were not conducted behind a veil of ignorance. The parties preferred a strong or weak president according to their chances of getting into the position. As with many other cases, this led to formal compromises, and the precise contours of this role had to be determined by the Constitutional Court over the subsequent years (see Dobos et al., 2013; Varga et al., 2015, pp. 156–157). Due to these interpretations, the position of the president was weakened, eventually leading to an informal constitutional change.

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Most of these changes were formalised when the Basic (or Fundamental) Law of Hungary (BLH) was enacted in 2011. 3.4.1

Position of the Hungarian President

The Hungarian president—contrary to the constitutional tradition of Hungary as well as in contrast to the Czech, Slovak, and Polish constitutions—is not part of the executive branch (or any other branch) but is instead understood as a neutral power (Dezs˝ o et al., 2010, p. 192; cf., Dobos et al., 2013, p. 79; Kovács, 2001).35 The president’s main duty is to ensure and guard the democratic functioning of the state organisation (Art. 9, para. 1 BLH). However, as the Constitutional Court clarified at the beginning of the 1990s, guarding the democratic functioning of the state is not a standalone or general power, contrary to the position of the French president, for example, who (according to Art. 5 of the French Constitution) ensures due respect for the constitution. The function of guardianship of the constitution is exercised by the president through the use of specific constitutional powers (of appointment, confirmation, or proposal). Therefore, being a guardian of the constitution is rather a yardstick for exercising those specific powers than a further source of power (Varga et al., 2015, pp. 156–157). In this way, the president may refuse an appointment or a confirmation if the proposed person would put the democratic functioning of the state in peril, but s/he cannot invoke this function to extend her/his constitutionally enumerated powers. The refusal is restricted to extremely exceptional cases (decision of the Constitutional Court 47/2007 (VII. 3.) AB; Petrétei, 2010; Petrétei, 2011). The same is true for the president’s position as the commander-in-chief of the Hungarian defence forces (art. 9, para. 2 BLH), which is not to be confused with the president actually holding any rank or post in the armed forces nor that the head of state would be an actual commanding officer. The president stays outside of the armed forces, and all the

35 As early as 1991, the Constitutional Court ruled that the president ‘stands outside

the executive power and has independent presidential powers. It cannot be derived from the Constitution that the Government and the President of the Republic hold executive power jointly and that they mutually monitor and counterbalance each other or come to consensual decisions’ (Decision of the Constitutional Court 48/1991 (IX. 26.) AB, part A, chapter IV).

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powers regarding the defence forces are of a very formal nature. They are specifically nominated in the Basic Law, like the power of appointing and promoting generals or the president’s membership on the National Defence Council.36 The president of Hungary is inviolable (Art. 12, para. 1 BLH), which means that the president is basically not accountable politically nor legally. The countersignature traditionally serves to assume accountability, and this is also the reason why most of the powers of the president require it. Legal accountability is reduced to a complicated impeachment procedure. In accordance with the earlier constitutional provisions, this can be proposed by one-fifth of the members of the National Assembly if the president intentionally violates the Fundamental Law or, in connection with their performance in office, any statute (Art. 13, para. 2 BLH). The actual procedure is opened if two-thirds of the members of the National Assembly vote for it (Art. 13, para. 2 BLH), and it is conducted by the Constitutional Court (Art. 13, para. 5 BLH). In this way, the Hungarian Basic Law of 2011 (in accordance with the earlier constitutional practice based on the constitution of 1989) does not entail general or all-encompassing powers of the president (contrary to the French constitution) but specifies presidential powers and enumerates them. Moreover, these are interpreted restrictively, and most of the powers require a countersignature from the cabinet (in some cases—like pardoning—even a motion from the cabinet or the Public Prosecutor and a countersignature eradicating the role of the president to the minimum). All in all, the legal status of the president, including presidential powers, has remained almost unchanged since 1990. Several key presidential competences were clarified by the rulings of the Hungarian Constitutional Court, which reacted to a number of constitutional disputes and which interpreted presidential competences in a very restricted way. The 2011 constitution has largely confirmed the weak position of the Hungarian president (cf., Dobos et al., 2013, pp. 84–85).

36 After all, the Constitutional Court ruled in 1991 that ‘this supreme command function was a constitutional one and did not thereby give him a rank or post in the Hungarian armed forces. Since the commander-in-chief was outside the structure of the forces, being its leader but not chief commanding officer, he therefore did not act as superior officer in respect of the armed forces since the commands (...) were issued by the commander of the Hungarian Army’ (Decision of the Constitutional Court 48/1991 (IX.26.) AB, part A).

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3.4.2

Constitutional Competences

Legislative Powers The most general power regarding legislation is the possibility of attending and addressing the sittings of the National Assembly (Art. 9, para. 3(b) BLH) and, in doing so, influencing debates and discussions regarding initiatives of the utmost importance, which happens very rarely; since the illiberal turn of 2010, the president has been rather passive. Moreover, and rather atypical for a head of state, the president may also initiate bills (Art. 6, para. 1 BLH) and (what is even more atypical) amendments of the Basic Law (Petrétei, 2015a, pp. 13–16; Szomszéd, 2005, pp. 132–133). Besides the 5 bills submitted during the first presidential term of 1990–1995 (Szomszéd, 2005, pp. 132–133), none of these powers has been exercised, even if they might have been quite influential and powerful tools in the hands of an active president. It became a consistent practice not to make use of this power, which seems to have turned into a convention, or more precisely a constitutional desuetude (cf., Albert, 2014). The president also signs statutes and orders their promulgation (Art. 6, para. 3 BLH; Petrétei, 2015a, pp. 16–29). Nonetheless, if the president disagrees with an adopted statute s/he vetoes it. There are 2 kinds of vetoes: a political one and a constitutional one (Petrétei, 2015b). The political veto means that the president sends the adopted statute back to parliament for reconsideration. The president and parliament have an obligation to cooperate, which practically means that the president must present her/his reasons in a way that is suitable for starting and conducting the process of reconsidering the statute. By the same token, parliament must deal with the president’s comments seriously and consider them in good faith. However, the reconsideration does not require it to accept the comments of the president or to amend the statute. Nonetheless, if parliament fails to discuss the comments and objections of the president seriously and simply recasts the votes, the statute is invalid because of formal irregularities (decision of the Constitutional Court 62/2003 (XII. 15.) AB.). In respect to this political veto, the right of the president to participate in and speak at sittings of parliament may achieve special importance because the president, due to this right, may further elaborate the reasons and potentially persuade parliament.

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The so-called constitutional veto is an ex-ante constitutional review (Art. 6, para. 3 BLH), which enables the president to initiate a preliminary constitutional review of an adopted but not yet promulgated statute (see also Dobos et al., 2013, pp. 83–84). The president may also combine these 2 kinds of veto power and, for example, request a constitutional review after a successful political veto or raise a political veto after a decision of the Constitutional Court. The delineation of these 2 kinds of veto has not always been clear, and choosing one or the other has to some extent been a question of policy. Legal questions can be disguised as political questions if the president is not sure that (s)he could be successful at the Constitutional Court, and political questions can in turn be presented as legal ones. Personal and professional background, rivalry, trust between parliament and the president, or between the Constitutional Court and the president can influence which kind of veto is exercised. President Sólyom could be more trusting of the Constitutional Court, which he had earlier presided over (1989–1998), than parliament, which was tricked a little bit into electing him based on a hitch in the parliamentary voting rules; as an outsider, he was only elected thanks to a shrewd exploitation of the tensions between the parties of the ruling coalition. Nonetheless, the constitutional veto is much more robust than the political one, but it is a discretionary decision of the president to make use of it. Moreover, the president may also veto an amendment to the Basic Law if s/he doubts whether the procedural requirements of amending the Fundamental Law were observed. In this case, the president also may initiate a constitutional review (Art. S, para. 3 and Art. 6, para. 9 BLH). The veto power does not require any countersignature. The president may also indirectly influence the legislation by initiating national referenda, the result of which is binding for parliament. The initiative does not require a countersignature, but an actual referendum depends on whether the National Assembly endorses the president’s initiative and approves of holding the referendum (Art. 9, para. 4(d) and Art. 8, para. 1 BLH). Non-Legislative Powers The most important non-legislative power of the president is the appointment or proposal of some key constitutional officials of Hungary. Therefore, the president merely proposes a candidate for the office of prime minister, and parliament elects prime minister with an absolute majority

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(Art. 16, para. 4 BLH). In this regard, the president does not appoint the prime minister, which is actually contrary to the constitutional tradition of Hungary (Térey, 2020). Furthermore, the president also proposes the president of the Supreme Court (Art. 26, para. 3 BLH), the president of the National Office for the Judiciary (Art. 25, para. 6 BLH), and the General Prosecutor (Art. 29, para. 4 BLH), each of whom is elected for 9 years by a two-thirds majority of the National Assembly. Furthermore, the president also proposes the Commissioner for Fundamental Rights, who is elected for 6 years by a two-thirds majority of the National Assembly (Art. 30, para. 3 BLH). These proposals do not require a countersignature. The president (overwhelmingly acting on a proposal) also appoints several further functionaries—for instance, ministers are appointed and dismissed by the president on the proposal of the prime minister (Art. 16, para. 7 BLH), and the governor and vice-governors of the Hungarian National Bank are appointed by the president for 6 years. The president also confirms the president of the Hungarian Academy of Sciences and the president of the Hungarian Academy of Arts. The president of the Fiscal Council (Art. 44, para. 4 BLH) is also appointed by the president but without a proposal from a third party. Appointments require a countersignature of the cabinet. Furthermore, the president appoints the heads of independent regulatory bodies, professional judges, university professors, and generals while also accrediting and receiving ambassadors and envoys and assigning university rectors. In these cases, the president refuses to act if the legal prerequisites of the appointment are not met or if the president has wellfounded reasons to conclude that the appointment would lead to a serious disorder to the democratic functioning of the state organisation. These appointments also require a countersignature of the cabinet. The president additionally sets the date for the general election of the National Assembly, local council members and mayors, and European Parliament elections as well as national referenda. The head of state also convenes the constitutive sitting of the National Assembly within 30 days of the date of the election (Art. 3, para. 1 BLH). These powers do not require a countersignature. The president also has the power, but not the duty, to dissolve the National Assembly in 2 cases: (a) the National Assembly fails to elect the person proposed for prime minister by the president within 40 days after the first proposal was made, or (b) the National Assembly fails to adopt

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the central budget for the year in question by 31 March (Art. 3, para. 3 (a) and (b) BLH). The president has yet to dissolve parliament. The president awards decorations, prizes, and titles. The head of state may refuse to grant this if a proposal violates the values enshrined in the Fundamental Law. The president grants individual pardons. However, the president cannot exercise this power of their own initiative; any such decision always requires a recommendation by the minister of justice or the General Prosecutor. Although the president is not obliged to give reasons for granting or denying a pardon, the decision nonetheless requires a countersignature for it to enter into force, which narrows the powers of the president extremely as it is not being exercised independently of the executive. Furthermore, the president may represent Hungary internationally, has several important competences in case of an emergency, and some other powers of a rather administrative nature (declaring towns to be cities or granting citizenship). Nonetheless, all these powers are of rather ceremonial nature, so (s)he always acts on a motion of the government and strictly in line with governmental policy. 3.4.3

Constitutional Amendments

The transitory constitution of 1989/1990 set out the legal framework regarding the presidency. Between 1990 and 2011, there were no major formal amendments of the provisions regarding the president. In 2002, presidential powers concerning elections needed to be modified because of Hungary’s upcoming membership in the European Union and thus the elections to the European Parliament (Act LXI/2002); since 2006, state secretaries did not need to be appointed by the president (Act LIV/2006). These formal amendments essentially did not change the constitutional position of the president. The formal amendments were not needed precisely because the Constitutional Court interpreted the powers of the president very intensively, shaped the true face of the institution, and established the relationship between the executive branch and the presidency (Varga et al., 2015, p. 156). The veto power was explained in 2003 (62/2003. (XII. 15.) AB.), the demise of the prime minister in 2004 (55/2004 (XII.13) AB.), and the competences regarding awards and decorations in 2007 (47/2007 (VII. 3.) AB.), which was rightly qualified as an informal constitutional amendment (Drinóczi, 2020, pp. 77–85).

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In 2011, as the new Basic Law of Hungary was enacted, the provisions about the president were amended, but these amendments brought about nothing that was substantially new; rather, they reflected and summarised the constitutional case law of the previous 2 decades. The Basic Law has simply formalised the earlier informal constitutional changes.

3.5

Poland

The tradition of the Polish presidency dates back to the Second Republic (II Rzeczpospolita). The president appeared in the March Constitution of 1921 and started to operate in January 1922, when the first term in office of the president, who replaced the chief of state (Naczelnik Panstwa), ´ began. The position of the president has fluctuated over the years depending on some constitutional changes, but it has mainly been altered due to the changing political situation. The March Constitution introduced a parliamentary regime. According to the constitution, the president headed the executive branch, and presidential nominal powers were considerable, but all the president’s acts had to be countersigned by the government, making the head of state a constitutional body completely dependent on the government and therefore weak (Ajnenkiel, 2001, pp. 154–179; Kallas, 2003, pp. 298–316). On 12–15 May 1926, the so-called May coup took place in Poland, and democracy collapsed as a result. From here, the country embarked on a path of authoritarianism. After the coup, an amendment to the March Constitution was adopted that strengthened the executive (including the president) at the expense of the legislature. The president was given the opportunity (with a proposal from the government) to dissolve parliament and could, with certain restrictions, issue decrees with the force of law. All these changes were not far-reaching and, in essence, did not violate the main principles of the parliamentary regime from the point of view of the constitution. Nevertheless, more important were the changes of a practical nature. In fact, Marshal Józef Piłsudski, the initiator of the coup, ruled, and his will was decisive even though he did not initially hold any constitutional office (Ajnenkiel, 2001, pp. 193–198; Kallas, 2003, pp. 317–319; Roszkowski, 1992, pp. 52–55, 57–59, 63–69). In 1935, a new so-called April Constitution was adopted, which fully codified the existing authoritarianism. According to the new constitution,

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the president became the holder of all state powers (branches). The president was not politically or constitutionally accountable. Almost unlimited power was concentrated in the hands of the presidency. The head of state acquired legislative, executive, and control competences, and all constitutional bodies were subordinated to the president. Most of the president’s competences were not subject to countersignature by the government (Ajnenkiel, 2001, pp. 214–231; Kallas, 2003, pp. 320–327). In short, the April Constitution of 1935 established a dictatorship in the presidency. However, political practice differed from the constitutional text. ´ In fact, the true ruler of the country became Edward Rydz-Smigły, who replaced Piłsudski after his death in 1935 (Roszkowski, 1992, pp. 73–76). After the invasion of Poland by Germany and the Soviet Union in 1939, constitutional bodies, including the president, did not cease to exist but emigrated. The role of the president was limited in favour of the government and prime minister. The president ceased to be the source of all power, and the sovereignty of the nation became enshrined in the state. The Polish state system thus lost its authoritative essence under specific circumstances. As a result of the communists’ victorious rise to power, which began during Second World War, the emigrant president of the republic was not ‘abolished’ and was active until 1990, but this role gradually lost its relevance (Ajnenkiel, 1991, pp. 75–96; Górecki, 2002). In the post-war ‘People’s’ Poland, we can also find the president, but only for a short time. The president became the strongest figure in the political system because President Bolesław Bierut was simultaneously the leader of the Polish communist party. In 1952, a new ‘Soviet’ constitution was adopted, which introduced a collective head of state—the Council of State—and thus abolished the single head of state (Kallas & Litynski, ´ 2000). On the basis of Round-Table Negotiations, the parliament approved the so-called April amendment to the 1952 constitution, which was only to apply for a transitional period, on 7 April 1989. Among other things, this amendment abolished the Council of State and replaced it with the president as a single-headed institution with relatively extensive powers. The president could dissolve the Sejm if—within a period of 3 months—it (a) did not form a government, (b) did not approve the budget, or (c) passed a law or resolution preventing the president from exercising his constitutional powers. The third condition was formulated so enigmatically that it gave the impression that it was a purely political matter aimed at the anti-communist opposition such that it could not exceed its role

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(Bankowicz, 2000, p. 26; Mojak, 1995). According to the round-table agreements, the president was to represent the interests of the outgoing communist power (Dudek, 2004, p. 260). There was no change in the position of the president until 1992, when the so-called Small Constitution was adopted on 17 October 1992. In terms of the organisation of the highest state institutions, the Small Constitution favoured the executive branch. Not only this, the Small Constitution of 1992, as the first constitutional legislation in the history of Poland, disrupted the tradition of the Sejm’s constitutional supremacy in the country’s political system. An important figure in the executive was the president, elected in direct and general elections by an absolute majority electoral system (double ballot) for a 5-year term with the possibility of one re-election. According to the Small Constitution, the president was part of the executive branch together with the government, and his position was strengthened by both the aforementioned popular elections and her/his somewhat enigmatic constitutional definition, which gave the president room to actively pursue her/his own policies (Ciapała, 1999). The powers of the president were quite extensive and can be divided into 6 main areas: (1) functions belonging to the head of state (including the role of arbitrator in the political system), (2) competences in specific areas (this particularly applies to foreign and security policy), (3) oversight of legislative acts of government (in case the Sejm authorised the government to issue decree-laws, the president could veto them), (4) participation in the operation of other constitutional institutions (participation in the legislative process and powers in relation to parliament, including the power of dissolving the Sejm), (5) overseeing the constitutionality of statutes (the president could refer a statute to the Constitutional Tribunal to assess its constitutionality), and (6) creative (nomination) competences (including influence on the composition of the government, proposing to the Sejm candidates for a number of positions) (Czajowski, 1993, p. 49). Importantly, the catalogue of presidential prerogatives, i.e., competences not subject to countersignature by the government, was relatively broad (cf., Czajowski, 1993, pp. 70–71). In short, the president had real executive power, which he used to varying degrees (Dudek, 2016, pp. 141–332). The president was not politically accountable (only constitutionally; political accountability was borne only by the government in relation to the Sejm).

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Position of the Polish President

The Small Constitution of 1992 was provisional as well as temporary, and, from the beginning, it was expected that a new, ‘proper’ constitution would be adopted in due course. This happened only after several years in 1997. This constitution (the Constitution of the Republic of Poland, CRP) is still in force today. According to this constitution, the president is a part of the executive branch (together with the government). The head of state is elected in direct and general elections for a 5-year term by an absolute majority electoral system in a two-round variant (there is the possibility of one re-election). However, the president no longer has real executive powers, and most presidential acts must be countersigned by the prime minister or a relevant minister who thus take political responsibility for the president’s decision. The position of the president was significantly limited by the 1997 constitution compared to the previous period. Although direct and general elections have been maintained, which strengthens the president’s democratic legitimacy, the head of state in reality occupies a secondary position in the political system, whereby the president’s political position is only formal and representative. Although the president is conceived of as an institution supervising constitutionality (Szczurowski, 2016), this is not so in practice, and the president is not a political arbiter either. The constitution makes the president a kind of a notary of the state (Bankowicz, 2016, p. 81), but certainly not an active part of the executive (Dudek, 2013, p. 30). The president is constitutionally accountable to the Tribunal of State. The president may be tried for violating the constitution or a statute or for committing a crime of a financial nature. The process of impeachment is initiated by the National Assembly (both chambers of parliament). The initiative must be supported by at least 140 members of the Assembly, and the indictment must be supported by at least two-thirds of the Assembly (i.e., 374 deputies and senators). The adoption of constitutional action against the president means that the president is temporarily suspended from office (Art. 145 CRP). The Act on the Tribunal of State (Ustawa z dnia 26 marca 1982 r. o Trybunale Stanu) provides that if the Tribunal of State confirms the president’s guilt, the president loses the office (Art. 25), and new presidential elections are called. This procedure has never been put into practice in the post-communist era.

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3.5.2

Constitutional Competences

Legislative Powers There are 6 significant legislative powers of the Polish president. First, the president may independently submit bills to parliament (Art. 144 CRP). This power has been embedded in the Polish constitutions since 1989. Second, the president has the power to veto a statute (Art. 144, para. 3 CRP). This power appeared in 1989 as well, but the quorum needed to overturn a presidential veto was changed. While the previous constitutional norms (1989, 1992) provided 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 in the presence of at least half of the deputies is required to defeat a veto (Art. 122, para. 5 CRP), which makes the implementation of such a step very difficult in practice. In addition, the president is not allowed to veto a statute on the state budget. Third, the president may refer statutes adopted by parliament to the Constitutional Tribunal, which is to assess the constitutionality of the respective legislation. This power has not changed over time. Fourthly, the president has the power to address parliament (both chambers) with speeches that, however, are not subject to parliamentary debates (Art. 140 CRP). This power appeared in the Small Constitution of 1992 and was also included in the current constitution of 1997. Fifth, the president has (very limited) decree power. The president, at the proposal of the government, may issue decrees with the power of a statute, but only under 2 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, para. 1 CRP). This power was incorporated into the constitution of 1997, but it is a specific power that cannot be added to the ordinary powers of the president since a war is not a situation where ‘normal’ constitutionality and politics work. Sixth, the president has powers concerning the ratification, or denouncement, of international treaties (Art. 133, para. 1 CRP). This power is exercised with the countersignature of the prime minister. This power has remained unchanged and enshrined in all constitutional norms after 1989. Finally, the president has the right to order a nationwide referendum. The referendum may be ordered by the president with the consent of an absolute majority of senators (Art. 125, para. 2 CRP). This

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provision appeared in the Small Constitution of 1992 and was readopted in the 1997 constitution. Non-Legislative Powers The non-legislative powers of the Polish president are as follows. 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 emphasised that, according to Art. 141, para. 2 of the constitution, the Cabinet Council does not assume the competences of the government. It 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, p. 84). This power was conferred on the Polish president earlier: pursuant to Art. 32(f) of the April amendment to the constitution of 1989 and also under Art. 38 of the 1992 Small Constitution, the president could convene a government meeting and preside over it. The president could de facto temporarily assume the role of prime minister, yet the current constitution of 1997 significantly weakened the president’s capacities in this manner. The president may accept or reject the prime minister’s resignation, i.e., a resignation that does not result from a successful motion of noconfidence in the government (in which case, the president is obliged to accept the resignation). Here, in comparison to previous constitutional provisions, the position of the president was strengthened. Art. 162, para. 4 of the 1997 constitution explicitly states that the president may refuse the resignation of the prime minister. On the contrary, the 1992 Small Constitution obliged the president to accept the resignation in this case (Art. 65, para. 1). The president appoints 3 (out of 9) members of the Monetary Policy Council, which is a body of the National Bank of Poland (Art. 227, para. 5 CRP). The power to appoint a third of the members of the Monetary Policy Council was only introduced in 1998 when the Monetary Policy Council was established. The president appoints the prime minister. However, the president is not allowed to appoint the premier at will because the president must obey the unambiguous procedure laid down in the constitution (Art. 154 and Art. 155 CRP) and take political realities 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

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a maximum of 3 steps: (1) the president designates the prime minister, who proposes the composition of the government, (2) the president, within 14 days of the first session of the Sejm after the election or of receiving the demise of the previous prime minister, appoints a new prime minister and a government nominated by him, or (3) the prime minister, within 14 days following his appointment, is obliged to submit a government policy programme to the Sejm together with a motion requiring a vote of confidence (Art. 154 CRP). 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 a new 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 again appoints a new prime minister within 14 days and, at his request, the government. Within 14 days, the Sejm decides on its confidence in the government. However, now only a simple majority is enough, with at least half of all deputies present to pass the motion of confidence. If the government fails to receive confidence for the third time, the president dissolves the Sejm and calls for new elections (Art. 154 CRP). The constitutional provisions regulating the government formation process have gone through various developments over the years. According to the somewhat vague April amendment of the 1989 constitution, the president proposed a prime minister to the Sejm; in agreement with the president, the prime minister proposed the entire government to the Sejm for approval. The Small 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, only the Sejm had more time to act at its disposal: 21 days. The third step was also the same as at present. In addition, the Small 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 confidence, step 5 followed: the president could either dissolve the Sejm or independently appoint the government, but only for 6 months. If the Sejm refused to pass a motion of confidence for the government within 6 months, the president dissolved the Sejm and called new elections. If we compare the 1992 and 1997 provisions, we see that the procedure is very strict and gives the president very little space for manoeuvring. In no situation can the government appointed by the president do

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without parliamentary confidence. In essence, it is not possible to appoint a presidential government. There was only one theoretical exception: in the fifth step according to the 1992 Small Constitution, but this has yet to happen. The president is not allowed to recall the prime minister. The president is only obliged to accept the latter’s resignation if the prime minister fails to gain confidence or, conversely, the Sejm passes a successful motion of no-confidence. As has already been said, if the prime minister submits a resignation of his own will, the president is allowed to refuse it. Previously, in line with the April 1989 amendment, the president could propose a recall of the prime minister to the Sejm, but this power appeared neither in the 1992 Small Constitution nor in the 1997 constitution. The president appoints and removes members of the government at the proposal of the prime minister. The president may neither appoint nor dismiss government ministers at will. The entire matter is in the hands of the prime minister. In the past, it was the same, only the 1992 Small Constitution stipulated that the appointment of foreign affairs, defence, 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, p. 24). The president may (but is not required to) dissolve parliament in the event of a failure to approve the state budget within 4 months of submitting the draft budget to the Sejm. This power was also enshrined in the 1992 Small Constitution, but there was a shorter deadline of 3 months. The president dissolves parliament if the Sejm fails to pass a vote of confidence for the new cabinet in line with the precise procedure regulating the government formation process (arts. 154 and 155 CRP) as described above. In addition, the president may dissolve parliament if it fails to approve the state budget within 4 months. It should be noted that the president had more opportunities to dissolve parliament earlier. Under the April 1989 amendment, the president could also dissolve parliament if the Sejm passed a piece of legislation or a resolution that prevented the president from exercising his office. Such a special arrangement was the consequence of Poland’s post-transition political situation. The Small Constitution of 1992 did not contain this specific provision. On the other hand, beyond the abovementioned possibilities of dissolving parliament (the failed government formation process or failure to pass the state budget), it allowed for one more option: the president could dissolve

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parliament if the Sejm passed a vote of no-confidence in the government but did not elect a new prime minister. 3.5.3

Constitutional Amendments

The constitution of 1997 is still in force, and it has remained almost unchanged. Only 2 changes were adopted in 2006 and 2009, respectively. The first introduced the possibility of applying European arrest warrants into the constitutional order (Art. 55 CRP), and the second restricted passive suffrage for elections to parliament with the condition of a clean criminal record (Chru´sciak, 2015, p. 213). This means that there were no changes related to the president.

3.6

Final Remarks

Although one can easily identify varying trajectories of presidencies in the 4 countries in the past, the Central European countries’ presidents now have similar presidents in terms of formal constitutional competences as well as regard constitutional practice. All the heads of state are presidents of parliamentary republics where most executive powers are vested in the government led by the prime minister, regardless of whether presidents are part of the executive (Czech Republic, Slovakia, and Poland) or not (Hungary); moreover, they play a rather minor role in the power structure of the respective political systems. Perhaps the most robust and solid bases of the presidential office can be found in the Czech Republic, which carries on the tradition of the interwar democratic presidents of Czechoslovakia not only in symbolic but also in practical terms; these presidents enjoyed exceptionally high authority despite lacking enough competences that would make them dominant figures of the executive. In contrast, Hungary introduced the presidency to its constitutional system only after 1989 (leaving aside the short-lived post-war era). The Slovak presidency is full of controversies as the Czechoslovak period is not so warmly embraced as in the Czech Republic. Also, the era of the Slovak State (1939–1945) as well as the era of the presidents of communist Czechoslovakia (which is surely part of the political legacy in the Czech Republic as well) cannot be portrayed in positive and trouble-free terms. The history of Polish presidents can be also characterised by a mixture of more or less intricate periods,

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including the interwar dictatorship, the era of a collective head of state, and discussions about the position of president in 1989–1997. The position and powers of the presidents in all countries under scrutiny became subject to political battles following the 1989 fall of communist regimes in the region. Even though ideas of more powerful presidents were on the agenda, all the countries (including Poland after 1997) opted for limited presidential competences, and presidents are not expected to play a major role in daily politics nor perform major policies, pushing political reforms, or the like. Their position has essentially been stable since 1989 (since 1997 in Poland), and the constitutional amendments that were adopted did not affect the presidents in a principal way even though the amendments have been especially frequent and significant in Slovakia. The presidents of the Central European countries are endowed with a standard set of legislative and non-legislative powers, many of which are designed as shared powers where the countersignature of a prime minister (or another minister authorised by the prime minister) is required. The presidents may intervene in the legislative process through their veto power as well as through the power to refer bills or already adopted statutes to constitutional courts. In Hungary and Poland, presidents may also initiate legislation. Presidents may also dissolve national parliaments (or the lower chamber in the Czech Republic and Poland) although the dissolution power is severely constrained by various conditions; in line with B. E. Rasch, the power can be conceived of as only a ‘safety valve’ (Rasch, 2001, p. 32) to unblock political deadlocks but not as a power tool that the president can use in politics. The presidents are endowed with powers to appoint various state officials. In particular, presidents play a very important role in the government formation process and the selection of a prime minister. Despite the fact that the scope and degree of action of presidents is framed by the rules of a parliamentary regime and presidents are expected to be rather reserved in executing their powers, presidents have occasionally become more active and even received the position of kingmakers, which in turn may trigger debates about the proper role of presidents in their constitutional systems and also about rules they should follow, including constitutional conventions and their interpretation.

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CHAPTER 4

Presidential Constitutional Conventions in Central Europe

The aim of this chapter, which is central to the book, is to identify presidential constitutional conventions in Central European countries.1 In addition, this chapter focuses on practices and rules that are not conventions yet (or ceased to be conventions). We label this area a ‘grey zone’ that comprises various practices, which, for various reasons (e.g., unsettled rules, lack of clarity, diverging views of constitutional actors), cannot be considered constitutional conventions. The grey zone is only discussed for the Czech and Slovak cases, whereas Polish and Hungarian cases are quite different given the almost non-existence of the concept of constitutional conventions in the narratives of key constitutional actors as well as academia.

1 This chapter shows that the identification of particular patterns of constitutional behaviour and labelling them as constitutional conventions appear to be difficult. Despite extensive expert knowledge of the constitutional text and actual constitutional practices, a great deal of ambiguity may remain in place. A specific rule may be labelled as a constitutional convention because it meets all definitional criteria. However, one could argue that the rule is not primarily set by a constitutional convention but instead directly results from the constitutional text or from a systematic reading of the constitution. In addition, in an effort to reconcile both views, another argument could be that the particular interpretation of the constitution is reinforced by a constitutional practice that hardened into a constitutional convention. All in all, in many cases, we faced difficulties in determining whether a specific rule is or is not a constitutional convention, greatly depending on our understanding (often loaded with a degree of subjectivity) of the case.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_4

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Our analysis is based on 3 major sources of information on constitutional conventions. First, we come from our own expertise on the issue, including analyses of patterns of the presidential competences that have been exercised in the 4 countries. Second, we have carefully examined the hitherto literature on the Central European countries’ presidents and consulted nearly all relevant literature in the field. Third, we use the information we gained from 46 interviews, conducted by the research team in 2020–2021, with experts on political science and constitutional law from all Central European countries. The chapter is structured as follows. We provide a special subchapter for each country, each examining presidential constitutional conventions according to the following areas of presidential competences: (1) relationship with government,2 (2) relationship with parliament, and (3) relationship with justice. To be more specific, we shall be concerned with these particular areas: (1) cabinet, including appointments of prime minister and ministers, (2) parliament, (3) appointments and nominations apart from the cabinet, and (4) further areas. We opted for a different structuring of the chapter than that presented in Chapter 3, where we discuss presidential competences as divided into legislative and non-legislative powers. We believe that both ways of dividing presidential competences are legitimate, having their strengths and weaknesses. For the purposes of analysing particular constitutional conventions, we prefer the division of presidential powers into the 4 categories presented above as we believe it brings more clarity and a better arrangement in this particular area of research than the division of powers into legislative and non-legislative competences, which proved useful in Chapter 3. Alongside the classification of conventions according to these areas, we apply the classification of constitutional conventions outlined in Chapter 2. The chapter is concluded with a comparative summary where we distil the major common traits and differences from the 4 sub-chapters dealing with constitutional conventions.

2 Presidents’ relationship with government (i.e., prime minister and his/her cabinet)

is central to our understanding of democratic regime types (parliamentary and semipresidential ones) and justifiably attract both media and scholarly attention (Baylis, 1996; Protsyk, 2005; Sedelius & Mashtaler, 2013). Notably, the government formation process has been subject to both empirical scrutiny and theoretical scrutiny (e.g., Brunclík & Kubát, 2021; Köker, 2017; Kopeˇcek & Brunclík, 2019; Tavits, 2009).

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4.1 Presidential Constitutional Conventions in the Czech Republic As described in Chapter 3, the Czech Republic is classified as a parliamentary regime with asymmetric bicameralism (Brunclík & Kubát, 2016). In this system, the cabinet is the highest body of executive power (Art. 67 of the Constitution of the Czech Republic—from now on CCR), which is responsible to the Chamber of Deputies (Art. 68 CCR). Nevertheless, it does not mean that the president plays a trivial role—the opposite is true as the president is head of state and enjoys several influential powers related to appointments, legislative vetoes, or pardons.3 Importantly, there are 2 sources of power that determine the strength of the president in the Czech Republic. Firstly, formal legal documents, especially the constitution together with specific laws, suggest that the president is predominantly endowed with standard powers and duties expected from a parliamentary regime. However, experts point out that the constitution as the most crucial set of rules includes some blind spots and leeway for interpretations and the creativity of (but not only of) the president (e.g., Šimíˇcek, 2019, p. 7; Suchánek, 2011, pp. 102–105). Secondly, it is not possible to fully understand the president’s role without taking informal aspects into account. To explain this, the president is in practice a more influential figure than one would expect from reading the constitution. To be more specific, there are 3 main sources that explain this discrepancy. The first one originates from the Czechoslovak Republic established in 1918 and mainly from its first president, Tomáš Garigue Masaryk. Since he promoted the president having an extraordinarily strong position and enjoyed the aura of being one of the founding fathers of the new republic, he managed to impress his concept onto the office for decades (Balík et al., 2004, pp. 61–67; Broklová, 2001, pp. 33–35; Brunclík & Kubát, 2019, pp. 25–26, Koudelka, 2018, p. 20).4 The second one specifically relates to Václav Havel, Václav Klaus, 3 Pardons were especially important in the Czech Republic and Slovakia as in both states the presidents issued controversial clemency decisions that were discussed before or even reviewed by the Czech (see Pl.ÚS 4/13; Pl.ÚS 36/17) and Slovak (see PL. ÚS 7/2017) Constitutional Courts. Moreover, 2 of the mentioned decisions are also, to a certain degree, connected with constitutional conventions (for details, see Chapter 5). 4 For instance, Czechoslovakia was the only republic in the Communist bloc of countries that maintained the position of the president for the entire period of Communist rule. In contrast, the institution was cancelled in most other countries and replaced by leading

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and Miloš Zeman as the 3 presidents that held the office between 1993 and 2023. As all 3 politicians have had both ambitions and abilities that played an influential role in the public arena, they have succeeded in attaining more informal powers (Suchánek et al., 2009, p. 153). Finally, the third source emerged in 2012 when direct presidential elections were enacted. Since then, the president has naturally enjoyed a stronger political position and greater popular legitimacy since they are (as of 2013) popularly elected by more voters than any other political actor (Suchánek et al., 2009, p. 153). Together, gaps in the constitution and the informal strength of the president have created a wide amount of space for constitutional conventions to emerge. Interestingly, the 2 above sources of power do not fully apply to any other institution aside from the presidency, which makes the president a central point when studying constitutional conventions in the Czech Republic. In fact, even a preliminary analysis of the existing knowledge shows that the vast majority of constitutional conventions in the country relate to the position of the president. Still, a systematic analysis of the phenomenon in the Czech Republic has been missing so far. Therefore, the following paragraphs identify specific constitutional conventions related to the president together with several potential conventions hidden in the ‘grey zone’ described above. 4.1.1

Relationship with Government

In the Czech Republic, the president and the government have 2 essential things in common. First, both institutions form the executive power of the state. Second, they are endowed with crucial powers for the working of the state. Thus, it should not be surprising that the roles of the president and the government often meet or even clash. As a result, it is possible to identify 5 presidential constitutional conventions affecting the relationship with the government. Besides these, there are 2 rules that may turn into constitutional conventions that are worth discussion. Respect for a Parliamentary Majority The president’s course of actions related to the appointment of a new cabinet substantially affects the politics of the country. The constitution positions within communist parties. The exceptionalism of Czechoslovakia demonstrates a specific position of the president in the country.

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does not establish a set of detailed rules for selecting a new prime minister and cabinet members. To be more specific, the text only states that the president ‘shall appoint the Prime Minister and, on the basis of the Prime Minister’s proposal, the other members of the government and entrust them with the management of the ministries or other offices’ (Art. 68, para. 2 CCR). Still, a helpful clue is mentioned in the following paragraph, which says that the newly appointed government has to ask the Chamber of Deputies for a vote of confidence within 30 days of its appointment (Art. 68, para. 3 CCR). Therefore, the president is motivated to appoint the cabinet likely to win the confidence of the lower parliamentary chamber. If the cabinet fails to convince deputies, the president has a second chance to appoint the government (Art. 68, para. 4 CCR). If necessary (i.e., the appointed government fails to win the confidence of the Chamber of Deputies), the third attempt rests in the hands of the president of the Chamber of Deputies, who nominates the person who is then appointed as prime minister by the president of the republic. Finally, if the third try fails, the president can dissolve the lower parliamentary chamber, which results in new legislative elections (Art. 35, para. 1(a) CCR). In other words, the constitution indicates that the president should respect a parliamentary majority during the cabinet appointment process. This is suggested by the investiture vote and the third appointment attempt relying on the role of the president of the chamber, whose position is grounded in a parliamentary majority. Nonetheless, presidents know that the process preceding the potential third attempt is extraordinarily long and complicated, which lowers their respect for the parliamentary majority compared to the expectations of the constitution. Furthermore, as the constitutional text is not specific, only the president’s actions5 in practice (and its non/acceptance by other political

5 After all, the brief wording of the constitution left space for so-called presidential cabinets, even though it is highly unlikely that constitution-makers considered this possibility desirable. How can a presidential cabinet arise in the Czech Republic? Once the president appoints the prime minister and his/her cabinet, the government may take office. There are no limitations as far as its actions are concerned, and the government may use its authority to take various steps in policy areas, public contracts, or personal reshuffles in the state apparatus. Even if the government fails to win the confidence of the Chamber of Deputies and resigns, the president may authorise the government to carry out its functions until a new cabinet is formed (Art. 62(d) CCR). As the constitution does not set any specific deadlines as to when a new prime minister is to be appointed, the president

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actors) delineate a constitutional convention of respecting a parliamentary majority. Initially, the constitutional convention was often framed by presidents as respect for election winners.6 Nonetheless, in practice, the parliamentary majority has been a more decisive factor than debates on who the election winner is. To be more specific, the first election after the state’s independence, which took place in 1996, resulted in a minority government being formed by the winning, right-wing Civic Democratic Party (ODS).7 Similarly, in 1998, the Czech Social Democratic Party

may not rush to take this step and keep ‘her/his’ cabinet in power, trying to convince parliamentary parties to support his cabinet and its legislative proposals. This is not just a theoretical possibility. Indeed, President Zeman appointed a government composed of his close allies in 2013 despite the will of the parliamentary majority. Zeman faced fierce criticism, but the cabinet still survived several months in office despite having lost a vote of confidence (for details, see Brunclík, 2016, pp. 19–20). Even though Zeman’s attempt to change the rules of the game failed, it shows that the constitution is flexible enough to allow for different (albeit doubtful) scenarios. 6 Importantly, there are several different interpretations of the election winner. This might be (1) the party with the highest number of votes, (2) the party with the highest number of deputy mandates, or even (3) the party that composes the government based on the parliamentary majority. Usually, the first 2 positions are employed as media, scholars, and politicians identify the election winner instantly after the election. Furthermore, another dimension of the debate is whether the election winner should be a single party or potentially an electoral coalition of several parties. Since the constitutional convention in the Czech Republic rests on respect for the parliamentary majority, the debate on specifying election winners has not even been initiated. Still, the issue reflects the practice. For instance, in 2021, although the electoral coalition SPOLU received the highest number of votes, ANO 2011 got more mandates concerning their number of members of parliament. Furthermore, President Zeman earlier declared that the election winner could not be an electoral coalition but only a single running party. Since the parliamentary majority mattered the most after the 2021 legislative election, and the largest party had no chance of forming a majority cabinet, its leader did not even claim to be commissioned to form a cabinet, proving that not even this interesting situation could conclude the discussion. As a result, the understanding of the election winner remains unanswered, which, nonetheless, is not a substantial problem in the Czech Republic since the constitutional convention is linked to a parliamentary majority. However, the issue of identifying election winners is more essential in other states, which are described below. 7 In post-communist Czechoslovakia, the first free election took place in 1990. The elec-

tions were dominated at all levels by the democratic movements Civic Forum (Obˇcanské fórum, OF) and Public Against Violence (Verejnostˇ proti násiliu, VPN), which were also commissioned to form the Czechoslovak and both the Czech and the Slovak governments. In 1992, the elections were won by ODS, who also composed cabinets. Therefore, the constitutional convention can be traced back to the Czechoslovak post-communist

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ˇ ˇ (Ceská strana sociálnˇe demokratická, CSSD) composed the minority leftwing cabinet as the winner of the snap legislative election. However, in both cases, the minority cabinets were supported or tolerated by the majority of members of parliament, which proves the president’s respect for parliamentary majorities in the first place. ˇ In 2002, CSSD won the election again, but with a coalition majority. Importantly, even though they replaced their prime minister twice in 2004 and 2005, and despite the fact that the ruling coalition held only a narrow majority (101 out of 200 MPs), President Klaus respected their right to form a cabinet as the largest party in the chamber with a ˇ 2005). Thus, the process resulted in a strengthdeclared majority (CTK, ened constitutional convention that referred to the parliamentary majority (although the role of the parliamentary party’s group size was also mentioned). After the 2006 legislative election, this constitutional convention played a crucial role. The election resulted in a hung parliament composed of 100 right-wing deputies and 100 left-wing members of parliament with little prospect of finding the necessary majority. Therefore, the president had to employ a different logic in appointing the governing election winner, which resulted in the single-party minority cabinet of ODS. Although Prime Minister Mirek Topolánek did not receive the chamber’s confidence, he was again appointed leader of the cabinet as the nominee with the strongest party. The president likened the decision to the repeated appointment of the Social Democratic prime ministers in the previous term: ‘Following the same logic, I have now given the same opportunity to the winner of the parliamentary elections, even though ˇ 2006c). After that, the first attempt to form a government failed’ (CTK, the second cabinet of Mirek Topolánek (newly composed as a coalition of 3 parties) received the confidence of the members of parliament thanks to the votes of 2 defectors from the Social Democrats. In 2009, the convention could return to the initial position. The fragile coalition broke up, and the cabinet lost a vote of no confidence in the Chamber of Deputies. Interestingly, even though Mirek Topolánek expected to be given another attempt to form a cabinet as ˇ 2009). To explain this, the election winner, the president refused (CTK, era. To the contrary, the first Czechoslovak republic did not always follow the constitutional convention of respecting the election winner as the primary candidate for cabinet formation.

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according to President Klaus, the vote of no confidence showed that the right-wing coalition did not have the necessary majority in the chamber. Therefore, the president appointed the technocratic government of Jan ˇ Fischer, resting on an agreement of the 2 largest parties, CSSD and ODS (see Brunclík, 2016, pp. 17–18; Hloušek & Kopeˇcek, 2014, pp. 1339– 1344). As a result, the constitutional convention shifted back from solely respecting the election winner to first taking a parliamentary majority into consideration. This interpretation continued after the 2010 legislative election. ˇ Although CSSD won the election, they could not compose a majority coalition. On the contrary, as the second largest party, ODS was able to build the right-wing coalition cabinet of parties declaring their will to cooperate. Therefore, the Social Democratic leader Jiˇrí Paroubek did not even demand a chance to form the cabinet, and President Klaus appointed Petr Neˇcas, leader of ODS, prime minister. As a result, the constitutional convention was interestingly confirmed as respect for the parliamentary majority. The situation after the 2010 legislative election demonstrates the advantage of a process regulated by constitutional convention rather than a formal constitutional law. To be more specific, if the constitution had specified that the leader of the winning party should have been appointed prime minister, the first attempt to form a cabinet would have resulted in a necessary failure. In contrast, since the process was based on a constitutional convention, it was simple to alter the procedure based on the post-election reality.8 Soon, this constitutional convention proved to be staunchly defended by political actors in the case of its breach. In 2013, the cabinet of Petr Neˇcas resigned due to a series of scandals. Importantly, even though ODS secured a coalition with a declared majority in the chamber, President Zeman appointed the technocratic cabinet of Jiˇrí Rusnok. However, politicians and media denounced the president’s actions as ‘Zemanocracy’, declaring war not only on the coalition but also on the whole parliaˇ 2013). Political scientists and constitutional lawyers were in ment (CT24, agreement that Zeman appointed a ‘presidential cabinet’ in an attempt to establish a semi-presidential regime (Brunclík, 2016, pp. 19–21; Hloušek, 2014). The president replied that the term ‘constitutional convention’ 8 In 1999, ODS and CSSD ˇ proposed a constitutional amendment that sought to oblige the president to act in line with the abovementioned imperative (for details, see Chamber of Deputies, 1999).

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was ‘completely idiotic, because if they were really constitutional convenˇ tions, they would somehow be enshrined in the Constitution’ (CT24, 2013). It should not be surprising that the technocratic cabinet did not get the deputies’ confidence, which resulted in a snap election later that year as the deputies assembled enough votes to dissolve the chamber. Since 2013, the convention has been respected by the president. Nonetheless, in 2021, Zeman declared that after the upcoming legislative election, he would appoint a leader of the winning party (!) as prime minister, regardless of a parliamentary majority. To explain this, the president supported Andrej Babiš’s ANO 2011,9 the likely winner of the elections. Nonetheless, Babiš’s party competed with 2 electoral coalitions for the electoral victory. With his announcement, President Zeman did not only try to shift the constitutional convention to the ‘electionwinner form’, but he also limited the interpretation to single parties. Still, Zeman’s interpretation led to public criticism (Seznam Zprávy, 2021). However, since ANO 2011 was the most successful as a single party but the 2 coalitions gained a majority in the chamber, Babiš refused the appointment to the post of prime minister. Therefore, the constitutional convention was not breached in practice. To summarise, the constitutional convention has been repeatedly employed and respected by political actors as respect for a parliamentary majority. Moreover, the example of its breach in 2013 demonstrates the convention’s established and strong position. Nevertheless, experts and politicians are not in complete agreement about whether the convention advises the president to respect the election winner or a parliamentary majority. This is probably caused by the fact that presidents publicly defended the convention differently based on the specific political circumstances. Yet still today, respect for a parliamentary majority is based on a more sound justification reflected in the logic of the constitution and how it is used in practice. Nonetheless, it is reasonable to inspect the convention in the future so that we can reflect any potential shifts in its quality. The President Commissions a Formateur After a Legislative Election The previous chapter demonstrates that the constitution is particularly precise about the process of appointing prime ministers. To repeat the 9 The party ANO 2011 follows from a civic association called ‘Action of Unsatisfied Citizens’ (Akce nespokojených obˇcanu, ˚ ANO). ANO literally means ‘yes’.

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most crucial provisions, the president has 2 attempts to appoint the prime minister of his own choice, who is able to receive the confidence of the Chamber of Deputies (Art. 68 CCR). Nonetheless, Czech presidents had soon established another institution of a formateur that is not present in the constitution. Because of its applicability in countries like the Czech Republic or Slovakia (cf., Horváth, 2022, p. 305), we borrow this term from Belgium and the Netherlands (see Andeweg et al., 1980, p. 224; De Winter & Dumont, 2003, p. 261), even though the term as such is not used in the Czech Republic. Instead, terms such as a ‘designated’10 or ‘commissioned’11 prime minister are commonly used. To be more specific, before appointing the prime minister, the president commissions a formateur that should hold talks on the cabinet formation. Only after these debates are successful is the formateur appointed as prime minister. As a result, the president ensures that a limited number of formal (i.e., constitutional) attempts to appoint the prime minister will result in success. The constitutional convention was first employed in 1996 when the very first election after the state’s independence took place.12 On 6 June, the leader of the winning ODS, Václav Klaus, was commissioned with the task of forming the government; his cabinet was appointed on 7 July. President Havel continued the practice after the 1998 and 2002 legislative elections. Importantly, the constitutional convention was even respected by Havel’s successors. President Klaus employed the institution of a formateur after legislative elections in 2006 and 2010. Similarly, President Zeman also named a formateur after the 2013, 2017, and 2021 legislative elections. On average, after legislative elections, formateurs were commissioned to form a coalition 36 days before they were appointed prime ministers. Interestingly, both extremes (described below) demonstrate the relevance of the constitutional convention. On the one hand, in 2006, Mirek Topolánek held talks on the cabinet formation as a formateur for 72 days

10 See, for instance (Vláda CR, ˇ 2021). 11 See, for instance (iDNES, 2010). 12 The convention already has roots in the short Czechoslovak post-communist era. In

ˇ 1990, Marián Calfa was named a formateur more than a week before his prime minister appointment. In 1992, Jan Stráský was commissioned to form a cabinet a day before his appointment to prime minister.

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before his appointment to the post of prime minister. Since the legislative election resulted in a hung parliament, the institution of a formateur allowed the president to save the first attempt to select prime minister in the event that Topolánek was not successful, despite his electoral victory.13 On the other hand, in 2021, Fiala was named a formateur only 19 days before his appointment to the position of prime minister. For context, President Zeman was hospitalised with severe health problems at the time of the post-election debates. Therefore, the majority coalition of 5 parties had already been arranged well before the president was capable of acting. Still, Zeman utilised the institution of a formateur even though the success of coalition talks and government formation was almost certain at the time. Therefore, it is no surprise that Zeman appointed Fiala as prime minister relatively quickly after commissioning him to form a new cabinet. In other words, the latest application of the practice demonstrates the strong tradition of the constitutional convention as it was employed even if it could not affect the course of government formation. This constitutional convention only applies, unconditionally, to cabinet formation after legislative elections. Nonetheless, a change of the prime minister during a legislative term might take place even without utilising the institution of a formateur. To be more specific, all 3 prime ministers of technocratic cabinets (Josef Tošovský, Jan Fischer, and Jiˇrí Rusnok) were appointed without priorly being named formateurs. Besides this, President Klaus did not commission a formateur in the 2005 change of the Social Democratic prime ministers nor in the 2006 second chance of Topolánek (ODS) to form the cabinet. On the contrary, Stanislav Gross ˇ (CSSD) was commissioned as a formateur in 2004 more than a month before his appointment to the position of the prime minister. Last but not least, the course of actions before forming the cabinet of Josef Tošovský in 1997 should be scrutinised in more detail. On 8 December 1997, President Havel commissioned Josef Lux, the leader of 14 to hold talks on the formation ˇ the Christian Democrats (KDU-CSL), of the government after the resignation of Klaus’ cabinet. Nonetheless, the president announced that Lux did not necessarily need to become 13 Furthermore, the president explicitly commissioned Topolánek with negotiations for, ˇ not a formation of, the next government (CTK, 2006a, 2006b). 14 The Christian and Democratic Union—Czechoslovak People’s Party, KDU-CSL ˇ ˇ (Kˇrestˇanská a demokratická unie – Ceskoslovenská strana lidová).

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the prime minister if some other politicians proved to have more support. Therefore, it is possible to identify Lux’s role as an informateur, whose goal was to gather information about possible coalitions that would later be used by a formateur (see Andeweg et al., 1980, p. 224). In fact, Tošovský was later appointed prime minister instead of Lux.15 However, the practice of informateur has not been employed since then. As a result, only the institution of a formateur should be classified as a constitutional convention. Two Prime Ministers at the Same Time In the Czech Republic, the process of cabinet alternation consists of 3 formal steps.16 First, the sitting cabinet resigns. Nonetheless, cabinet members, including the prime minister, stay in office, and the president entrusts them with running their departments until the new government is appointed. Second, the president appoints the new prime minister, who shall then select members of the new cabinet. Third, after the new prime minister officially nominates cabinet members, the president appoints them, and the members of the previous government finally leave office (Art. 62 CCR). Importantly, between the appointment of the new prime minister and the appointment of the whole new government, the country has 2 prime ministers at the same time. To a large extent, on the one hand, this constitutional convention is based on the formal constitutional framework. To be more specific, the constitution specifies that the president ‘shall entrust the government whose resignation he has accepted, or which he has recalled, with the temporary performance of its duties until a new government is appointed’ (Art. 62(f) CCR). Besides this, the constitution clearly states that the president ‘shall appoint the Prime Minister and, on the basis of the Prime Minister’s proposal, the other members of the government’ (Art. 68, para. 2 CCR). Therefore, there is a necessary 2step sequence—the prime minister has to first be named so he/she can then propose other members of the cabinet (see Vanˇca, 2018, pp. 11–12). The convention creates a new situation of 2 coexisting prime ministers, which is not discussed in the constitutional text. 15 For more details on the formation of Tošovský’s cabinet, see (Brunclík, 2016, pp. 16– 17; Hloušek & Kopeˇcek, 2014, pp. 1334–1339). 16 This applies to cabinet alterations after legislative elections as well as cabinet changes within an election term.

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The constitutional convention has clearly been constructed by informal steps from the president. To be more specific, the head of state might appoint the new cabinet members immediately after the appointment of the new prime minister. Then, the period of 2 prime ministers would have been shortened to a few minutes (or hours at most). Certainly, that would be possible only if the incoming prime minister had been informed in advance so that he/she could select cabinet nominees. For instance, this is the case in Slovakia, as shown later in Sect. 4.2.1.17 Nonetheless, in the Czech Republic, presidents have followed a different procedure. The new prime minister is appointed long before the appointment of cabinet members. On the one hand, it provides the incoming prime minister with more political authority during the cabinet formation process. On the other hand, it creates a constitutional convention of 2 prime ministers being in office simultaneously. In practice, the constitutional convention was initially employed during the very first change of prime ministers after the state’s independence.18 To be more specific, on 30 November 1997, the second cabinet of Klaus resigned after a scandal related to the financing of his ODS party. On 17 December 1997, President Havel appointed Tošovský as the new prime minister. However, the new cabinet was not named until 2 January 1998, which ended the period of 2 prime ministers, Klaus and Tošovský, being in office at the same time. Overall, the period lasted for 17 days. The procedure was soon established and has remained in operation until today. Table 4.1 shows that the period of 2 prime ministers lasted for approximately 14 days on average. On the one hand, the longest time between the appointment of the new prime minister and his cabinet took 30 days. To be more specific, Fischer had the whole month to 17 To explain this, the Constitution of the Slovak Republic defines the process of cabinet alteration in a very similar way to the Constitution of the Czech Republic. To be more specific, the president appoints cabinet members by proposal from the prime minister (Art. 111 CSR), and after a cabinet’s resignation, the president delegates all powers to be exercised continuously until a new government is appointed (Art. 115, para. 2 CSR). Nonetheless, Slovak presidents appoint ministers immediately after a new prime minister has been named. Therefore, the constitutional convention of having 2 prime ministers has not been established although the constitutional framework in Slovakia in this particular regard does not principally differ from the Czech one. 18 Earlier, in the Czechoslovak era, this constitutional convention was unknown because, in practice, prime ministers were appointed together with the members of their cabinets. Nonetheless, the simultaneous existence of not only prime ministers but also whole cabinets was possible according to the constitution since 1948 (Vanˇca, 2018, pp. 7–9).

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Table 4.1 Prime ministers alternation in the Czech Republic Prime Minister

Appointment date

Resignation date

Leaving date

Václav Klaus Josef Tošovský Miloš Zeman Vladimír Špidla Stanislav Gross Jiˇrí Paroubek Mirek Topolánek Jan Fischer

2/7/1992 17/12/1997

30/11/1997 17/7/1998

x 17

17/7/1998

12/7/2002

12/7/2002

2/7/2004

2/1/1998 22/7/ 1998 15/7/ 2002 4/8/2004

26/7/2004

25/4/2005

10

25/4/2005

16/8/2006

25/4/ 2005 4/9/2006

16/8/2006

24/3/2009

8/5/2009

20

9/4/2009

25/6/2010

30

Petr Neˇcas

28/6/2010

17/6/2013

Jiˇrí Rusnok

25/6/2013

13/8/2013

Bohuslav 17/1/2014 Sobotka Andrej Babiš 6/12/2017

5/12/2017

13/7/ 2010 13/7/ 2013 29/1/ 2014 13/12/ 2017 17/12/ 2021

Petr Fiala

28/11/2021

11/11/2021

Period of 2 prime ministers (days)

6 4

1

16 19 13 8 20

Note Václav Klaus, Mirek Topolánek, and Andrej Babiš led 2 cabinets, but the table follows their overall prime ministerships Source Own compilation based on various resources

nominate his technocratic cabinet members. On the other hand, the swiftest prime minister alternation took place on 25 April 2005 when Jiˇrí Paroubek replaced Gross as head of the coalition government after a financial scandal ensnared the latter. Importantly, since the coalition remained unchanged, most of the ministers continued in their offices, and all necessary preparations were negotiated in advance; the president appointed new cabinet members less than 3 hours after the appointment of Paroubek. Therefore, this alternation was an exception affected by the specific conditions of this prime minister shift. The application of the convention was blurred from the very beginning. President Havel admitted that the constitution did not acknowledge

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the term ‘designated’ prime minister and that he was aware of the potenˇ 1997). Significantly, Czech scholars described the tial controversy (CTK, risk of a clash between the 2 prime ministers. However, the consensual practice is that the only task of the new prime ministers is to form the new cabinet without any decision-making authority. It is the outgoing prime minister who exercises prime ministerial powers (Chrastilová, 1998, pp. 105–108; Pavlíˇcek et al., 2015, pp. 885–886; Šimíˇcek, 2003, pp. 163– 164).19 Still, the practice of 2 coexisting prime ministers has been met with a disgruntled academia (Gerloch et al., 1999, p. 193). Some scholars even argued that this procedure contradicts the constitution (Koudelka, 1998, p. 6; Pavlíˇcek & Hˇrebejk, 1998, p. 248; Sládeˇcek et al., 2016, pp. 688– 689). In order to eliminate this controversial constitutional practice, some scholars suggest that the president should appoint the new prime minister and ministers simultaneously (Bahýlová et al., 2010, pp. 867–868; Kysela, 2008, p. 248; Sládeˇcek et al., 2016, pp. 688–689), as occurs in Slovakia, where the period of concurrent mandates of both prime ministers lasts only a couple of hours (e.g., Giba, 2020b). However, this Slovak practice, which seems less controversial than the Czech one, was employed only once in 2005. At that time, the new cabinet was only established because the prime minister was replaced, whereas the coalition parties, as well as the ministers, were not changed (Vanˇca, 2018, p. 18). All in all, the peculiarity of 2 prime ministers and the distribution of their roles, quite surprisingly, became a well-established rule respected by different political actors and even accepted by the public. This practice, which has not resulted in political clashes over competences, appears to have gradually turned into a constitutional convention. Nonetheless, there is also the serious uncertainty of a potential breach of the convention. To be more specific, even though the period of 2 prime ministers only lasted for several hours in 2005, there was not any public criticism defending a necessity to appoint the prime minister earlier. Similarly, we cannot be sure that political actors or academics would have protested if any future prime minister had been named together with their cabinet members. 19 The issue is crucial, especially in the case of the prime minister’s countersignatures. Interestingly, this question was already discussed in the First Czechoslovak Republic, with leading political scientist and legal theorist František Weyr (1937, p. 201) stating that ‘according to the current custom, the outgoing prime minister countersigns the dismissal decrees, while the new prime minister signs appointing decrees (including his own)’.

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Since we have to wait for this quality of the convention to be tested, it is possible to call it an emerging constitutional convention. Negotiation and Ratification of International Treaties According to the constitution, the president negotiates and ratifies international treaties (Art. 63, para. 1(b) CCR). Additionally, the constitution specifies that these decisions require the countersignature of the prime minister or a member of the government designated by the leader of the cabinet (Art. 63, para. 3 CCR). As a result, the government is responsible for these acts made by the president (Art. 63, para. 4 CCR). In this specific case, the countersignature demonstrates a duality of the cabinet and the president within executive powers (Koudelka, 2009, p. 2). To be more specific, even though the president represents the state externally, the government is responsible for foreign policy. What is more, the constitution adds that the president ‘may delegate the negotiation of international treaties to the government or, with its consent, to individual members thereof’ (Art. 63, para. 1(b) CCR). The provision was already being utilised in 1993 by President Havel, soon after the split of Czechoslovakia. The president issued a decision delegating the negotiation (unless decided otherwise in individual cases) and approval of bilateral and multilateral international agreements that do not require parliamentary acceptance20 to the government (Decision No. 144/1993 Coll.; Gerloch et al., 2013, p. 176).21 A more detailed inspection of the decision and its subsequent usage reveals the constitutional convention—as the decision also includes the right to approve 20 The constitution specifies that the assent of both chambers of the parliament is required for the ratification of treaties (a) affecting the rights or duties of persons, (b) of alliance, peace, or other political nature, (c) by which the Czech Republic becomes a member of an international organisation, (d) of a general economic nature, and (e) concerning additional matters, the regulation of which is reserved to statute (Art. 49 CCR). 21 Besides this, the decision delegated the negotiating and approving of bilateral and multilateral international agreements, the significance of which does not go beyond the competence of central state administration bodies to a member of the government in charge of managing the relevant ministry or another central state administration body (Decision No. 144/1993). Because of the relatively minor significance of these treaties, the following text regarding the role of the president and the government in the area of treaties concerns only agreements the negotiation and approval of which has been transferred to the government as a whole (‘governmental’ as opposed to ‘departmental’ treaties).

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international treaties, contradicting the constitution’s allowance of only delegating the power to negotiate (Dostál & Borˇcany, 2018, p. 3). As a result, the government started to negotiate and approve international treaties not requiring the assent of parliament. In practice, specifically delegating the negotiation process is understandable because the presidential office does not enjoy as much (professional and personal) capacity to negotiate international treaties compared to the ministry of foreign affairs. Nonetheless, approval is a less demanding process that might be feasible by the presidential office. Still, the approval was also delegated, so the process is in the power of the very same subject that negotiated the treaty (i.e., the government) in the first place. President Havel issued the decision without any temporal limit. Even though Havel’s successors could have changed the original decision, it has remained unchanged until today, which has created a long-existing foundation for the constitutional convention. Importantly, the original decision had been countersigned by then-Prime Minister Klaus, who replaced Havel as the president in 2003. Therefore, this continuity probably contributed to the endurance of the constitutional convention. Importantly, the practice of the delegation goes not only beyond the constitution but the very decision No. 144/1993. Even though the decision only deals with international treaties that do not require parliamentary assent, the government also negotiates international agreements that need to be approved by both chambers of parliament. Again, this procedure is quite justifiable because, if the president’s office lacks the capacity to negotiate international treaties that do not require parliamentary assent, it surely does not have the capacity to negotiate other international agreements either. The only difference is that the ratification of the latter remains a power of the president, exercised after the necessary parliamentary approval. To summarise, the constitutional convention determines that the president does not ratify international treaties that do not require parliamentary assent, which is delegated to the government. Moreover, the head of state additionally does not negotiate international agreements that require parliamentary assent, which is also done by the government. Thus, ratifying international treaties that need parliamentary approval has remained the only involvement of the president in the area.22 22 The importance of such power was mainly demonstrated in 2009. The Treaty of Lisbon, signed in December 2007 in the Portuguese capital, was ratified on 3 November

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Appointment of a (Vice-)governor of the Czech National Bank23 In November 2000, President Havel appointed Zdenˇek Tuma ˚ as ˇ ˇ governor of the Czech National Bank (Ceská národní banka, CNB) and ˇ ˇ 2000). However, Ludˇek Niedermayer as vice-governor of CNB (CNB, the appointment was criticised (among other leading politicians) by Prime Minister Zeman, who disagreed with Tuma’s ˚ monetary policies. Therefore, the government initiated a competence dispute based on the claim that the president’s appointment should have been countersigned by the prime minister, which it was not. To be more specific, the constitution states that the president ‘shall appoint members of the Bank Council of the Czech National Bank’ (Art. 62(k) CCR). This power does not require the countersignature of a cabinet member. On the contrary, the countersigned powers of the president are listed in the following article 63. Nonetheless, the government argued that, according to the constitution, the president ‘also possesses powers which are not explicitly enumerated in constitutional acts if a statute so provides’ (Art. 63, para. 2 CCR) and such decisions ‘require the countersignature of the Prime Minister or a member of the government designated by him’ (Art. 63, para. 3 CCR). As a result, the government argued that the president did not need a countersignature to appoint members of the bank council, but he needed a countersignature to name (vice-)governor since such positions differ from ordinary members listed among the exclusive powers of head of state. The Constitutional Court decided on the matter in June 2001 (Pl. ÚS 14/01). The judges rejected the government’s claim since the cabinet tried to restrictively interpret the president’s constitutionally enshrined appointment competence using the ordinary (i.e., sub-constitutional) law

2009 by the Czech Republic, the very last country in the European Union to do so ˇ (CTK, 2019). On that day, the Constitutional Court first decided that the contract was in accordance with the Czech constitution, and then, the document was signed by President Klaus. He had previously rejected the contract for fear of breaking Beneš’s decrees, but he received a promise from the EU summit that exempted the Czech Republic from the charter of fundamental rights. Importantly, the treaty was already ratified by the Chamber of Deputies in February and by the Senate in May that year. 23 Even though the Czech National Bank is not an executive power of the state, the constitutional convention was established by a relationship between the president and the cabinet. Thus, the appointment of a (vice-)governor of the Czech National Bank belongs to this subchapter.

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as a reference criterion, which is not justifiable. Importantly, the Constitutional Court also stated that the president has named (vice-)governors of the central bank without the countersignature of prime minister since 1993, which created a ‘constitutional procedure practiced for a long time’ (Pl. ÚS 14/01). Therefore, the practice ‘corresponded to a value and institutional consensus on the constitutional plane’ and ‘repeatedly and unequivocally confirmed’ the interpretation of the respective constitutional provision according the president the exclusive power to appoint the governor and vice-governors without any need of countersignature (Pl. ÚS 14/01). Interestingly, the dispute also provoked academic debate. For instance, Filip (2000) stressed the importance of the existing constitutional practice even before the court’s decision. To be more specific, he criticised the cabinet in that it employed an unexpected interpretation contradicting the expectations of the time: ‘In the given matter, none of the actors intentionally acted unconstitutionally, and thus unlawfully from the point of view of the written constitution, but acted defectively from the point of view of unwritten rules, the observance of which is also expected of them, although they cannot be legally enforced’ (Filip, 2000, p. 409). Therefore, it is justifiable to identify the president’s course of actions as a constitutional convention. After all, the Constitutional Court concluded in 2001 that this legal opinion (i.e. the president appoints (vice-) governor of the Czech National Bank without a countersignature of a cabinet member) ‘has been respected and followed in practice without ˇ interruption since 1993 until the debate on the act amending the CNB act. This interpretation has been confirmed gradually developing into a constitutional convention’ (PL. ÚS 14/01).24 The Grey Zone of Constitutional Conventions Besides established constitutional conventions affecting a relationship between the president and the government, there are 2 often discussed practices that can be included in this grey zone. First, President Zeman attempted to establish a previously non-existent interpretation of the constitution in 2017. In April, Prime Minister Sobotka reacted to the conflict of interest of Minister of Finance Babiš

24 Legal aspects of the convention and its identification by the Constitutional Court are discussed in more detail in Chapter 5.

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ˇ with a decision to hand in an abdication of the cabinet (CTK, 2017).25 Sobotka expected that such a demission would result in the end of the entire government, which had been the dominant interpretation until then. However, Zeman argued that he would not consider Sobotka’s demission as the demission of the whole cabinet. Instead, he sought to recall only Sobotka, whereas the rest of the cabinet would remain in office. President Zeman was, on the one hand, a close political ally of Babiš and, on the other hand, in a long-lasting conflict with Sobotka. Therefore, the president’s planned actions should be understood as an attempt to meet his political goals. Furthermore, Zeman’s interpretation was in direct conflict with the prime minister’s declaration of handing in the demission of the entire cabinet. Still, the president’s intention triggered an interesting public debate. The constitution only states, with regard to the government’s resignation, that the prime minister ‘submits his resignation to the President of the Republic’ and that other members of the cabinet ‘submit their resignations to the President of the Republic through the Prime Minister’ (Art. 73, para. 1 CCR). Experts are predominantly in agreement about the interpretation of such provisions (e.g., Gerloch et al., 2013, p. 172; Pavlíˇcek & Hˇrebejk, 1998, p. 255; Syllová & Koláˇr, 2006, p. 6). For instance, Pavlíˇcek and Hˇrebejk (1998, p. 255) argue that ‘the resignation of the prime minister means the resignation of the entire government, as membership in the government depends on whether the members of the government enjoy the confidence of the prime minister’. To the contrary, Filip (2001, p. 324) theorises that there might be a difference between a resignation of the cabinet and a demission of only the prime minister. Nonetheless, Syllová and Koláˇr (2006, p. 6) reply that an individual resignation of the prime minister might end in unconstitutional situations based on some interpretations. For instance, the president could not nominate new cabinet members as the existing ministers had not resigned, or the new prime minister could not even have been appointed as the existing cabinet did not resign either. Therefore, Syllová and Koláˇr (2006, p. 6) summarise that the interpretation of the prime minister’s resignation resulting in the cabinet’s leave is the only possibility.

25 Sobotka explained that if he only removed Babiš from the post of finance minister, ˇ it would allow Babiš to play the role of martyr before the elections (CTK, 2017).

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Therefore, on the one hand, President Zeman was not successful in establishing a new constitutional convention by saying that only the prime minister could be replaced within a cabinet. On the other hand, the opposite, and largely accepted, interpretation that the prime minister’s resignation translates into is that the cabinet’s demission cannot be identified as a constitutional convention either. We can argue that the latter claim is based on a systematic interpretation of the constitutional text, not on a custom respected by political actors and complementing the constitutional text.26 To summarise, while the current practice is not a constitutional convention, the contradictory interpretation with the parameters of a constitutional convention has not been established. Second, heated debates accompany a practice concerning the president’s appointment of cabinet members. To be more specific, the constitution states that on the basis of the prime minister’s proposal, the president shall appoint ‘the other members of the government and entrust them with the management of the ministries or other offices’ (Art. 68, para. 2 CCR). Furthermore, the Constitutional Court already decided in 2009 that, in the absence of precisely defined deadlines in the constitution, it should proceed ‘without unnecessary delay’ (Pl. ÚS 29/09).27 The interpretation can be also applied to the ministerial appointments that are not formally limited by any specific deadline. Based on these provisions, experts are predominantly in agreement that the president should appoint ministers without any political preconditions or unnecessary delays. Such an interpretation respects that the

26 Again, we admit that there might be at least 2 further views of the matter. First, one can argue that the resignation of the prime minister equals the resignation of the cabinet as a whole, which is a constitutional convention as this fact does not clearly result from the constitutional text. Instead, it is a binding rule of constitutional practice that has hardened into a constitutional convention (cf., Kopeˇcek, 2022, pp. 419–420). Second, one can try to reconcile both views (constitutional conventions vs. systematic interpretation of the constitution) and argue that the practice (resignation of the prime minister automatically leads to resignation of the cabinet) flows from a systematic reading of the constitution. In addition, this reading of the constitution is supported by a constitutional convention that tends to reinforce the systemic interpretation. 27 The decision dealt with a compliance of the Treaty of Lisbon amending the Treaty on European Union and the Treaty on the Functioning of the European Union with the constitutional order of the Czech Republic (Pl. ÚS 29/09). Within the debate, the Constitutional Court also discussed the deadline for the signing (ratification) of the international agreement by the president.

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government is responsible to the Chamber of Deputies, and the president should not obstruct the prime minister in selecting his/her team of cabinet members. Still, scholars admit that the president can justifiably refuse to appoint a nominee under very specific conditions (e.g., Antoš, 2021; Kysela, 2021; Wintr, 2015, pp. 92–93, 2021). Nonetheless, this can only be the case if the appointment violates the law, for instance, due to a conflict of interest or a conviction with a prohibition of performing functions within the state administration. Specifically, the constitution states that ministers ‘may not engage in activities which are by their nature incompatible with the performance of a minister’s duties’ as ‘detailed provisions shall be set down in a statute’ (Art. 70 CCR). On the one hand, in 2005, President Klaus refused to appoint David ˇ Rath (CSSD) as the minister of health before resigning from his post as president of the Czech Medical Chamber because the 2 positions were legally incompatible. Only after Rath resigned from the presidency of the Czech Medical Chamber did Klaus appoint him as a cabinet member. On the other hand, there are several examples of all the Czech presidents complicating the appointment process without justifiable cause. For example, President Havel hesitated several weeks to appoint the minister ˇ of industry and trade, Miroslav Grégr (CSSD), to the vacant post of the ˇ 2021). deputy prime minister in 2001 for philosophical reasons28 (CTK, ˇ In 2003, President Klaus did not appoint Milan Urban (CSSD) to the position of the minister of industry and trade until it was confirmed that he spoke at least one world language. In the 2 instances, the presidents wrongfully required further conditions to appoint the ministers. Nonetheless, the appointment process has really been put to the test by President Zeman. To be more specific, the president hesitated in naming several cabinet members without formal justification in 2014 ˇ 2021).29 Similarly, Zeman initially refused to appoint Jan Lipavský (CTK, (Pirate Party) to the position of minister of foreign affairs in 2021 due 28 Havel said, ‘Those reservations are neither personal nor political, they are philosophical. I simply do not agree with his vision, with his concept of the economy, I consider ˇ his “technological zone” to be the destruction of our country’ (CTK, 2021). 29 To be more specific, Zeman had doubts about Milan Chovanec’s (CSSD) ˇ studies ˇ ˇ at the Pilsen law school (CTK, 2021). Moreover, Zeman criticised Jan Mládek (CSSD) due to problems with obtaining a security clearance. Last but not least, the president repeatedly said that he would ask the ministers for a negative lustration certificate, which could be a problem for Babiš who eventually became the minister of finance and later also prime minister.

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to political objections. Nonetheless, the president later backed down, yet this was not the case at other times. In 2018, Zeman refused to ˇ appoint Miroslav Poche (CSSD) to the position of minister of foreign affairs because the president did not agree with Poche’s migrant-friendly ˇ was policy and migration quotas.30 Eventually, Tomáš Petˇríˇcek (CSSD) nominated and appointed. In 2019, Zeman did not name Michal Šmarda ˇ (CSSD) as the minister of culture, allegedly due to a lack of experience ˇ in the field. As a result, Lubomír Zaorálek (CSSD) was nominated and appointed as minister. These cases are not exceptional either, as presidents publicly expressed their hesitant and even reluctant position toward ministerial nominees. Oftentimes, they cast doubts on their professional, managerial, or language competence. They also questioned the candidates on policy grounds, etc. (Lidovky, 2014; Brunclí, forth.). It should consequently be noted that the presidents, especially Zeman, have tried to establish a practice of attributing a more powerful role to the president within the appointment process. There are also some experts who support such a position (e.g., Adamus, 1996, pp. 73–74; Bárta, 2007, pp. 141–142; Koudelka, 2018, pp. 176–177). However, these attempts were predominantly denounced, and the current interpretation says that the president can only refuse to appoint a ministerial nominee due to a very limited number of legal reasons that cannot be political or otherwise purposive. Therefore, the president has yet to succeed in establishing a new constitutional convention that would allow a more powerful role in this process. At the same time, the dominant interpretation (i.e., the president is basically obliged to appoint ministers as proposed by prime minister) cannot be identified as a constitutional convention either.31 The rule that the president should appoint ministers without any political preconditions

30 At last, Poche was not even an official nominee since Prime Minister Babiš (ANO 2011) refused to nominate him due to the president’s disagreement along with other reasons (Deník, 2018). Nonetheless, the president presented his determined intention to reject Poche’s nomination immediately after Poche was presented as a potential nominee ˇ ˇ of CSSD (CTK, 2018). 31 Importantly, for instance, Wintr (2015, pp. 92–93) might call the practice a constitutional convention. However, the interview with Wintr specifies that he does not rigorously distinguish between the binding character of a constitutional convention and a systematic reading of the constitution. Therefore, even his perception does not contradict our interpretation.

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or unnecessary delays is based on a systematic reading of the constitution. It is especially understandable given the fact that the government is responsible to the deputies, not the president. Last but not least, a similar interpretation refers to the resignations of ministers. To explain this, the constitution says that the president ‘recalls the Prime Minister and other members of the government and accepts their resignations, recalls the government and accepts its resignation’ (Art. 62(a) CCR). Similarly, experts are in agreement that the president cannot refuse to accept the resignation under any circumstances. Still, President ˇ Zeman hesitated to accept the resignation of Antonín Stanˇek (CSSD), the ˇ minister of culture, for several weeks in 2019 (CTK, 2021). Nonetheless, the president did not succeed in establishing any convention within this procedure either. 4.1.2

Relationship with the Parliament

The bicameral parliament in the Czech Republic, consisting of the Chamber of Deputies and the Senate, follows several practices (Wintr, 2010).32 Nonetheless, most of the habits do not meet the conditions of constitutional conventions as they concern the inner workings of the chambers. This fact also substantially decreases the number of potential conventions toward the president. Still, there is a presidential constitutional convention related to the parliament in the matter of signing adopted statutes. Missing Signature of the President Under Laws If a bill finishes the legislative process in the parliament, it comes to the desk of the president.33 Then, according to the constitution, the president

32 For instance, plenary sessions of the deputies are suspended based on the request of a chair-person of a parliamentary party group, although there is no such requirement in the rules of procedure (Kysela, 2008). Similarly, it is a habit that senators send a delegation to the lower chamber to communicate senators’ decisions in the case of a rejected bill. 33 In the Czech Republic, bills may be introduced by a deputy, a group of deputies, the Senate, the government, or representative bodies of higher self-governing regions (Art. 41, para. 2 CCR). Bills are introduced to the Chamber of Deputies, which approves them by a simple majority. Then, the senators either adopt it, reject it, return it with proposed amendments, or declare its intention not to deal with the bill, which translates into an adoption (Art. 46, para. 2 CCR). In the case of rejection, the deputies can override it with an absolute majority (Art. 47, para. 1 CCR). In the case of a return with amendments,

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has 2 options. First, he/she can sign the bill, which is a confirmation of their consent with the proposal. Second, the constitution also allows the president ‘to return adopted acts, with reasons given, within fifteen days of the day they were submitted’ (Art. 50, para. 1 CCR).34 This right does not apply to constitutional acts. If the latter is the case, the Chamber of Deputies votes again on the returned act (Art. 50, para. 2 CCR). Provided that deputies reaffirm their approval of the act by an absolute majority of all members of parliament, the act shall be promulgated. Otherwise, the bill shall be deemed to have failed. In other words, the president of the Czech Republic enjoys a suspensive veto power. Still, the constitution states that adopted statutes ‘shall be signed by the President of the Chamber of Deputies, the President of the Republic, and the Prime Minister’ (Art. 51 CCR). Thus, the president should also sign the bills that he/she vetoed earlier (Suchánek et al., 2009, p. 165). Nonetheless, the practice has not followed the constitution since 1994 when President Havel did not sign 2 bills that he had vetoed.35 Furthermore, the Rules of Procedure of the Chamber of Deputies, adopted in 1995, de facto confirmed such procedure formally (Act No. 90/ 1995 Coll., s. 107, para. 3). More precisely, the act says that if the bill ‘is returned by the President of the Republic to the Chamber of Deputies and the Chamber of Deputies persists on it, the President of the Chamber of Deputies shall send it to the Prime Minister for his signature’. As a result, the president does not sign the bill vetoed by him or her (Gerloch et al., 2013, p. 175), which is a constitutional convention that contradicts the constitution (Koudelka, 2018, p. 155; Suchánek et al., 2009, pp. 165–166). To sum up, if the Chamber of Deputies overrides the presidential veto of a bill, the bill becomes a valid law even without a presidential signature

the deputies first might either confirm the Senate version by a simple majority, or, second, the members of parliament confirm the initial version by an absolute majority (Art. 47, paras. 2–3 CCR). 34 However, once signed, a law cannot be vetoed, even if the latter would happen before the deadline of 15 days (Pavlíˇcek & Hˇrebejk, 1998, p. 194; Suchánek et al., 2009, p. 165). 35 These were Act No. 273/1994 Coll. on administrative fees and Act No. 275/1994 Coll. on the exercise of the profession of authorised architects and on the exercise of the profession of authorised engineers and technicians active in construction.

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(as required by the constitution). This counter-constitutional convention was indirectly codified and upheld by the Act No. 90/1995. Aside from this, the convention has one more dimension to be scrutinised. In 2004, the parliament enacted a bill that acknowledged the merits of Czechoslovak President Edvard Beneš (Act No. 292/2004). Nevertheless, President Klaus refused to sign the bill with an explanation that state ˇ 2004).36 Still, decorations are a more suitable tool for such actions (CTK, Klaus did not veto the bill either since he did not want to support other critics of the bill who criticised some of Beneš’s policies.37 As a result, such a procedure allowed the bill to be promulgated. In total, President ˇ 2020). Klaus did not sign or veto the bill 13 times (CT24, Similarly, President Zeman neither signed nor vetoed a bill on tax adjustments in 2020. Since the president confirmed that he did not veto the bill, it came into effect. Nonetheless, a group of senators lodged a complaint with the Constitutional Court based on the argument that the legislative process had not been respected in accordance with a constitutional order. Interestingly, the government of Babiš, which had supported the bill, argued that the course of the president’s actions was in line with an existing constitutional convention (Pl. ÚS 6/21).38 As a result, the court did not abolish the law. On the one hand, constitutional judges confirmed that the president’s step was not in accordance with the constitution, which is supported by the literature (Herc, 2015, p. 504; Kysela, 2009, p. 422; Sládeˇcek et al., 2016, p. 520; Suchánek, 2010, p. 625; Suchánek et al., 2009, p. 165). On the other hand, the court stated that ‘not attaching a signature itself of the president to the adopted law does not reach sufficient intensity to affect (proper) completion of the legislative process’ (Pl. ÚS 6/21, p. 14). Interestingly, even 36 Besides this, Václav Klaus defended the exceptionality of Tomáš Garrigue Masaryk, the first Czchoslovak president, who had been the only head of the state recognised by a specific statute. 37 To be more specific, associations of Sudeten Germans denounced Beneš’s role in the

ˇ displacement of Czechoslovak Germans after the Second World War (CTK, 2004). 38 ‘The government emphasises that the application of the president’s authority to return the adopted proposal is always accompanied by a long-term formal procedure (constitutional convention), the (non-)use of which enables the addressee of the memorandum to clearly know the will of the president, whether he decided to use his right of suspensory veto or not. Listed constitutional convention lies in the long-term strict adherence to the formalised form of expression of the president’s will to veto the adopted law’ (Pl. ÚS 6/21, p. 5).

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though the Constitutional Court did not deal with the question of the existence of the constitutional convention, it confirmed the contradiction of the procedure with the constitutional order, which defines a character of the constitutional convention.39 To summarise, the constitutional convention determines that approved bills come into effect even without the president’s signature. Therefore, the president does not have to sign the previously vetoed bills, or he/she can express soft disagreement with a bill rather than vetoing it. However, the constitutional convention contradicts the formal rules of the legislative process. 4.1.3

Relationship with Judiciary

Presidential powers toward the judicial branch are quite numerous in the Czech Republic. To be more specific, according to the constitution, the president appoints justices, including Justices of the Constitutional Court (Arts. 62–63 CCR). Furthermore, from among judges, the president appoints the chairperson and vice-chairpersons of the Supreme Court. Importantly, the president also has the right to issue amnesties, and he/she may further ‘grant pardons or commute sentences imposed by courts and order that a criminal record be expunged’ and ‘orders that the criminal proceedings not be instituted or if it has been instituted, that it be discontinued’ (Arts. 62–63 CCR). Nonetheless, there is only a single practice of the president that can be classified as a constitutional convention. Single Vice-Chairperson of the Supreme Court In November 2006, President Klaus appointed Jaroslav Bureš as vicechairperson of the Supreme Court. However, the court’s chairperson, Iva Brožová, argued that the act was unconstitutional since Bureš had become the second vice-chairperson. To explain this, Brožová admitted that the president had the formal right to appoint ‘Vice-Chairpersons of 39 Interestingly, President Havel established one more practice related to this field as he signed 19 laws with objection (Suchánek et al., 2009, p. 168). To be more specific, in such cases, he did not utilise the right of a suspensive veto, but he signed the bills together with a letter to the president of the Chamber of Deputies that pointed out shortcomings and recommended swift amendments. Nevertheless, such a practice should not be classified as a constitutional convention since it is only a minor change from the formal procedure without a significant effect on the process.

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the Supreme Court’ according to the constitution (Art. 62(f) CCR).40 However, she also pointed out that there was a contradiction to the law at the time allowing only a single vice-chairperson of the Supreme Court (Act No. 6/2002 Coll., s. 15).41 The president defended his decision by saying that the constitution takes precedence over the law, so he could appoint the second vice-chairperson. To resolve the collision, Brožová filed a lawsuit against President Klaus with the Constitutional Court. She argued that having only a single vicechairperson was a protection against a potential influence on the Supreme Court by appointing further vice-chairpersons by the president. Importantly, she claimed that 13 years of respecting the single vice-chairperson established a constitutional convention (Pl. ÚS 87/06). According to her, the constitutional convention was intentionally breached as a result of a conflict with the president, although such a practice should have been unimaginable in a democratic state based on rule of law.42 Besides this, Brožová argued that President Klaus acted contrary to the law as he did not have the consent of the chairperson to appoint a vice-chairperson (Act No. 6/2002, s. 70). The Constitutional Court decided in September 2007. Brožová succeeded with the lawsuit, and Bureš lost his position of the vicechairperson (Pl. ÚS 87/06). The court agreed that Bureš was not appointed with the consent of the chairperson, which was a necessary condition (Act No. 6/2002, s. 70). However, the Constitutional Court did not decide about the existence of a potential constitutional convention. Moreover, the majority of constitutional judges did not even deal 40 The constitution said that the president ‘shall appoint from among judges the Chairperson and Vice-Chairpersons of the Supreme Court’ (Art. 62(f) CCR). 41 The wording of the law was as follows: ‘The Supreme Court consists of the president of the court, the vice-president of the court, the presidents of the chambers, the presidents of the chambers and other judges’ (Act No. 6/2002, s. 15). 42 The relationship of Klaus, Bureš, and Brožová was full of conflict at the time. In February 2006, President Klaus removed Brožová from office due to an inappropriate operation of the Supreme Court. However, the Constitutional Court left Brožová in office before resolving her complaint against the act based on a lack of reasons given. Meanwhile, Klaus appointed Bureš as judge of the Supreme Court so that he could later replace Brožová as a chairperson. Nonetheless, Brožová even took this appointment to court since Bureš was not accepted by her as a chairperson. By accident, Brožová was hit by a car in May 2006, and President Klaus appointed Bureš as vice-chairperson in November 2006 with an explanation that another vice-chairperson would help the Supreme Court affected by the missing chairperson due to medical reasons.

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with the question of the number of vice-chairpersons since the conflict was resolved based on the missing consent. As a result, a potential existence of the constitutional convention remained an unanswered question. On the one hand, the issue seemed to be resolved in 2008 with a change of the act on courts (Act No. 314/2008, art. 1). Since then, the law has enabled appointment of more than a single vice-chairperson of the Supreme Court, which removed the discrepancy with the constitution. On the other hand, the Supreme Court has kept having only a single vice-chairperson. Therefore, even though legislators confirmed the possibility of the appointment of more vice-chairpersons of the Supreme Court in 2008, presidents have not stopped respecting the initial number of only one vice-chairperson. This can easily be interpreted as a conventionally set boundary between the autonomy of the Supreme Court and the president’s potential will to influence the court by appointing allied vice-chairpersons. Furthermore, it is justifiable to expect that any breach of such a boundary would lead to public criticism. Therefore, since the practice meets all the conditions of the definition, it can be classified as a constitutional convention.43 4.1.4

Classification of Constitutional Conventions

In the previous analysis, 7 presidential constitutional conventions were recognised. These were (1) respect from the president for parliamentary majorities, (2) the institution of a formateur, (3) 2 prime ministers temporarily coexisting, (4) the negotiation and ratification of internaˇ tional treaties, (5) the appointment of a (vice-)governor of the CNB, (6) missing signature of the president on certain laws, and (7) a single vicechairperson of the Supreme Court. Let us now inspect the conventions from a theoretical perspective and classify them according to the variables of the conventions presented in Chapter 2. Firstly, as for the origin of presidential constitutional conventions in the Czech Republic, it is justifiable to conclude that most of them were established by precedent. For instance, such an origin was clearly identified by the Constitutional Court in the case of appointing a (vice-)governor of

43 Legal aspects of the convention and its assessment by the Constitutional Court are discussed in more detail in Chapter 5.

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ˇ the CNB. Mostly, it was an attempt to bridge the lack of clarity in respective constitutional provisions and to provide a particular direction on how to proceed in a specific situation. Respect for election winners within the appointment of the prime minister had already manifested itself in 1996 when the largest party, ODS, composed the minority coalition cabinet. However, the principle has older roots as it represents respect for legislative election results from the very first free election in 1990. Later in 2009 and 2010, the convention transformed again through a precedent for respecting a parliamentary majority. Similarly, President Havel first commissioned a formateur by precedent to form the cabinet of the Czech Republic in 1996. Nonetheless, he had already employed the institution in 1990 and 1992 to form Czechoslovak cabinets. Aside from this, the Czech Republic experienced the simultaneous rule of 2 prime ministers for the first time in 1997 when the very first alternation of the heads of cabinets took place. Since then, the convention has been repeatedly employed based on this precedent. Next, the practice of a single vice-chairperson of the Supreme Court manifested itself from the institution’s establishment in 1993. Importantly, 13 years later, the chairperson of the court even argued that the period of respecting the single vice-chairperson established a precedent at the level of a constitutional convention (Pl. ÚS 87/06). In the case of laws without the president’s signature, the convention that the head of state does not sign vetoed laws was codified by the Rules of Procedure of the Chamber of Deputies in 1995. However, President Havel did not follow the constitution since 1994 when he did not sign 2 bills that he had vetoed. Therefore, it was established by precedent. Similarly, the president’s possibility to neither sign the bill nor veto it was created by a precedent in 2004. This type of origin has not changed, even in 2021 when the Constitutional Court refused to invalidate such laws.44 However, this happened after many repetitions of the convention, so it cannot change the origin based on precedent. To the contrary, the ratification of international treaties by the government was clearly created by an agreement. To be more specific, in 1993, President Havel utilised the constitutional option to delegate the negotiation of international treaties to the cabinet (Art. 63, para. 1(b) CCR). 44 The court stated that ‘not attaching a signature itself of the president to the adopted law does not reach sufficient intensity to affect (proper) completion of the legislative process’ (Pl. ÚS 6/21, p. 14).

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Even though the decision went even further, it does not change the origin of the constitutional convention that lies in the formal change (Decision No. 144/1993). Second, let us focus on the relationship between these constitutional conventions and the constitution. Respect for the election winner or parliamentary majority is an interpretative presidential constitutional convention. To explain this, the convention is based on the relationship of the prime minister appointment with the provision that the new government needs to ask deputies for a vote of confidence (Art. 68, para. 3 CCR). Therefore, the constitutional convention resulted in an interpretation reliant on the investiture vote. Similarly, even though the constitution states that the president has the formal right to appoint ‘ViceChairpersons of the Supreme Court’ (Art. 62(f) CCR), only a single vice-chairperson has been in office at any point to date. Therefore, there is a clear interpretation of the constitutional text limiting the number of vice-chairpersons to a single one. Last but not least, the appointˇ ment of the CNB (vice-)governor is also an interpretative constitutional convention as it specifies the president’s course of actions regarding the appointment process. Along with these, the institution of a formateur is a creative constitutional convention. To explain this, the convention established a practice that is not codified by the constitution at all. Moreover, it creates a special figure with an important role within the government formation process. To some extent, 2 coexisting prime ministers can be classified as a creative convention. The process of the government alternation is not described by the constitution in detail. Furthermore, the simultaneous rule of 2 prime ministers is an invention of the convention, which indicates its creative character.45 The last 2 constitutional conventions without a doubt contradict the constitution. To be more specific, a convention established under Havel delegated the negotiation and approval of bilateral and multilateral international agreements, in the event that they do not require parliamentary acceptance, to the government (Decision No. 144/1993). Nonetheless, the constitution says that the president may only delegate the negotiation of such documents (Art. 63, para. 1(b) CCR). Moreover, the practice 45 However, the simultaneous existence of 2 prime ministers is such a complicated institutional reality, which is not even mentioned by the constitution; thus, it can be classified also as a counter-constitutional convention depending on the interpretation.

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of the delegation goes not only beyond the constitution but beyond the very formal decision as well since the government additionally negotiates international agreements that need to be approved by both chambers of parliament. What is more, the constitution clearly prescribes that adopted statutes ‘shall be signed by the President of the Chamber of Deputies, the President of the Republic, and the Prime Minister’ (Art. 51 CCR). Therefore, the constitutional convention of missing a presidential signature on laws runs counter to the constitution. This classification applies to both not signing the vetoed bills and neither signing nor vetoing bills. Third, as for the effect on real power of the president, 2 constitutional conventions should be classified as rather insignificant. To be more specific, the existence of 2 prime ministers at the same time does not influence the position of the president. The convention only strengthens the position of the incoming cabinet leader, who can then form the government under the official title of prime minister. Similarly, the missing signature of the president under some laws does not limit or strengthen the power of the head of state. The laws come into effect even without the president’s signature, who just do not have to sign the vetoed bills or can demonstrate a resistant position between vetoing and signing a bill. On top of these aforementioned conventions, 3 constitutional conventions limit the power of the president. To be more specific, the expected respect for an election winner or the parliamentary majority substantially restricts the president’s options in selecting a prime minister or a government. Similarly, as the convention delegated the ratification and negotiation of international treaties to the cabinet, the president lost their initial influence on the process. Last but not least, the convention of a single vice-chairperson of the Supreme Court limits the president’s options of affecting the operation of the court by naming more allied vice-chairpersons. Thus, only 2 constitutional conventions enlarge the president’s power. To be more specific, since the president appoints (vice-)governor of the central bank without a signature, it notably empowers the head of state. Additionally, the institution of a formateur opens up some leeway for the head of state when it comes to the limited number of allotted attempts to appoint the prime minister. Instead, the president commissions a formateur to form the cabinet, which does not have any constitutional consequences. On the one hand, when there is a clear parliamentary

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majority and the candidate for the prime-ministership is sure, commissioning a formateur is a rather formal step. The best example of such a situation was naming Fiala as a formateur in 2021, which was at a time when the coalition agreement had already been signed. On the other hand, the authorisation of a formateur allowed President Klaus to manage post-election talks in 2006/2007 without wasting attempts to name a prime minister during a hung parliament. Fourth, 3 constitutional conventions are power-conferring. To be more specific, the possibility that the president would not sign a law gives the head of state more room for discretion. From the perspective of the ˇ president’s appointment of CNB (vice-)governor, it does not require the countersignature of the prime minister. Similarly, as the president employs the institution of formateur, it enlarges their power and opens up some leeway for the head of state. The details of the classification of presidential constitutional conventions are summarised in Table 4.2. The other 4 constitutional conventions are duty-imposing. Respect for an election winner or a parliamentary majority quite strictly determines the course of the president’s actions. The alternation of the government, which results in a situation allotting 2 prime ministers, simultaneously prescribes the president’s steps within the process. The convention on the negotiation and ratification of international treaties transfers the power from the president to the government. Last but not least, the convention on the Supreme Court imposes a limit on vice-chairpersons appointments (Table 4.2). Fifth and finally, as for the types of constitutional conventions, there is a single infra-convention. In essence, there is not a general acceptance toward the president’s ability to not sign a law. On the one hand, Havel, Klaus, and Zeman employed the convention as presidents. On the other hand, constitutional judges confirmed that such a practice contradicts the constitution, which has been supported by experts (Herc, 2015, p. 504; Kysela, 2009, p. 422; Sládeˇcek et al., 2016, p. 520; Suchánek, 2010, p. 625). Therefore, the existence of this convention, to a large extent, remains contested (see Heard, 1989, pp. 71–74). Furthermore, there are 2 semi-conventions that prescribe a desirable course of actions, but the expected behaviour may occasionally be disregarded without substantial repercussions. To be more specific, the appointment of the prime minister long before the rest of the government fits this type of convention. In other words, if the convention of 2 simultaneously coexisting prime ministers had not been followed, it

Creative Creative Counter-constitutional Interpretative Counter-constitutional Interpretative

Precedent

Precedent

Agreement

Precedent

Precedent

Precedent

Source Own analysis

Interpretative

Precedent

Respecting parliamentary majority President commissions a formateur Two prime ministers at the same time Ratification of international treaties ˇ Appointment of CNB (vice-)governor Laws without the president’s signature Single Supreme Court vice-chairperson

Relation to the constitutional text

Origin

Limiting

No significant effect

Enlarging

Limiting

No significant effect

Enlarging

Limiting

Effect on real power of the president

Presidential constitutional conventions in the Czech Republic

Constitutional conventions

Table 4.2

Duty-imposing

Power-conferring

Power-conferring

Duty-imposing

Duty-imposing

Power-conferring

Duty-imposing

Discretion

Meso-convention

Infra-convention

Meso-convention

Meso-convention

Semi-convention

Fundamental convention Semi-convention

Type

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would not affect the process of government alternation. Similarly, we have experienced government formations without commissioning a formateur (although it was mainly the case during the legislative term), which did not even have a minor impact on the cabinet creation. Next, 3 other practices should be classified as meso-conventions that protect widely accepted constitutional principles, even if they do not incorporate those principles closely. The convention of a single vicechairperson of the Supreme Court protects the court from the appointment of more vice-chairpersons who are allied to the president. In general, it is a principle that guards the independence of judicial power. In a similar vein, the negotiation and ratification of international treaties by the government represent the cabinet’s responsibility for foreign policy. Therefore, even though the convention does not protect the principle specifically, it clearly contributes to its proper functioning. Next, the president appoints (vice-)governor of the central bank without the countersignature of a cabinet member so that the bank is protected from potential pressures from the government. Last but not least, the president’s respect for the election winner and a parliamentary majority is an example of a fundamental constitutional convention. Therefore, any breach or change of this convention would ‘produce significant changes in the operation of the constitution’ (Heard, 1989, p. 72). This should not be surprising as the convention not only respects the result of legislative elections and the majority principle of a parliamentary regime, but it also respects the fact that the government is responsible to the Chamber of Deputies. In practice, a major violation of this constitutional convention took place in 2013 when President Zeman appointed the technocratic cabinet of Rusnok despite a publicly declared political parliamentary majority. The action was soon condemned by politicians, experts, and the public (Brunclík, 2016, ˇ 2013; Hloušek, 2014). Such criticism for breaching pp. 19–21; CT24, the convention confirms its fundamental character. 4.1.5

Summary

To summarise, it is quite surprising in retrospect that a systematic analysis of presidential constitutional conventions in the Czech Republic has been missing so far. The analysis proves the existence of the constitutional conventions in the country despite only a 3-decade lifespan as well as the continental (thus, non-Westminster) character of its parliamentary

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regime. Overall, 7 constitutional conventions affecting the powers of the Czech president have been identified. The number is undoubtedly high, which confirms 2 assumptions. First, the Czech presidency enjoys a great deal of informal power based on the historical legacy, and, second, there is some leeway for the conventions within the constitution. As a result, presidential constitutional conventions have become a solid institution of the political system despite their power-conferring or duty-imposing character. Importantly, all 3 presidents since 1993 (Havel, Klaus, and Zeman) were influential politicians that contributed to the formation of constitutional conventions.46 While they established some of the conventions through precedents, they either defended or tried to reject others in public. In all instances, the presidents and their course of actions initiated expert or public debates on constitutional conventions and their role within the political system. Last but not least, other institutions further proved to be essential when establishing constitutional conventions. To explain this, the cabinets, legislators, or representatives of a judicial system did not hesitate to warn the head of state against not following constitutional conventions. What is more, these disputes sometimes even resulted in judicial proceedings in the Constitutional Court. Moreover, constitutional judges did not waver over discussing the existence of constitutional conventions (for details, see Chapter 5).

4.2

Presidential Constitutional Conventions in Slovakia

The Slovak political regime is defined as parliamentary by most Slovak experts (Cibulka & Domin, 2018, p. 57; Giba, 2011, p. 102; Giba et al., 2019, p. 229; Kanárik, 2009, p. 219; Kresák, 1996; Orosz & Šimuniˇcová, 1998, p. 59; Svák & Cibulka, 2009, pp. 639–640; Zelenajová, 2016, p. 1068).47 However, this fact does not necessarily mean that

46 Besides this, Zeman also challenged some of the conventions established by his predecessors, such as respect for a parliamentary majority. 47 In contrast, Ján Drgonec claims that the regime type in Slovakia is ‘unclear’, and he denies that Slovakia is a parliamentary regime (Drgonec, 2018, p. 342). Drgonec goes on to argue that the claim that the Slovak Republic is a parliamentary regime can be ‘one of the greatest mistakes’ disseminated by the Slovak constitutional law doctrine.

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the Slovak president is weak (e.g., Drgonec, 2018, pp. 230–242; Orosz & Šimuniˇcová, 1998, p. 61; cf., Giba, 2018, 2021, pp. 399–400).48 The constitutional provisions regarding presidential competences are often brief and even somewhat vague. Hence, the constitution ‘de facto allows for a quite diverse range of conceptions of how presidential function are performed, from an active political player and actual state policy-maker, through a neutral arbiter, a “counter-balance” towards the governmental power, up to a passive constitutional “notary” who restricts oneself to a more or less ceremonial execution of his functions’ (Giba et al., 2019, pp. 230–231; cf., Brunclík & Kubát, 2021; Kopeˇcek & Brunclík, 2019). In other words, the constitutional text is not entirely clear as far as the degree of presidential discretion where a number of competences are concerned (see also Guniˇc, 2021, p. 459). A great degree of uncertainty is especially relevant for the relationship between the president and the government (Svák & Cibulka, 2009, p. 643) as well as the president’s appointment powers, ranging from appointing the prime minister, ministers, and the judges of the Constitutional Court to the General Prosecutor. As a consequence, the uncertainty regarding some constitutional provisions creates an area where constitutional conventions might play a desirable role in eliminating the ambiguity of constitutional provisions. Yet, as Marián Giba claims, ‘permeated by formalism, the Slovak legal environment is not a priori [italics by Giba] an ideal terrain for the creation of unwritten norms. However, especially with general and framework constitutional regulation [of the president – note by the authors], this possibility does not need to be ruled out either, and precisely in the exercise of some presidential powers the possibility can already be observed now’ (Giba et al., 2019, p. 232). Thus, in the following paragraphs, we seek to look into these areas of ambiguity with the aim of identifying presidential constitutional conventions. We only identify them in the area of the government formation process. We also take account of areas (grey zones) where there is

Instead, Drgonec talks about ‘hybrid’ regime in Slovakia (for details, see Drgonec, 2018, pp. 236–242; cf., Drgonec, 2012, p. 1105; 2019, pp. 1152–1154, 1274, 1279). 48 This claim was confirmed by the Slovak Constitutional Court in 2009. The court argued that, ‘...in relation to the powers of the President, it is impossible to generally infer their notarial character, which is by no means changed by the argument advocated by the government about parliamentary form of government’ (PL. ÚS 14/06-38).

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some room for constitutional conventions, but these rules have not been established (yet). 4.2.1

Relationship with Government

Like in other Central European countries, the Slovak constitution assumes a great degree of interaction between the president and the government. Hence, taking the perspective of potential clashes the president may have with other constitutional bodies, one can argue that the most important institutional relationship of the president is the one with the government (Procházka, 2019, p. 21). In addition, the major pool of constitutional conventions can be looked for in the government formation process, which is only briefly described by the constitution (see also Sect. 3.3.2). Respect for a Parliamentary Majority The same as in the Czech Republic, the crucial constitutional convention that emerged—and that has never been broken in Slovakia—is the president respecting a parliamentary majority when he/she is expected to appoint a new prime minister and, subsequently, a new cabinet. This principle is not explicitly formulated by the constitutional text.49 It instead follows from the actual unequivocal constitutional practice. All governments formed in Slovakia resulted from a parliamentary majority. Unlike the Czech Republic, until May 2023, when the first technocratic cabinet, led by L’udovít Ódor, was established (Reuters 2023), there have

49 However, one could use a reverse argument. Even though the rule (respect for a parliamentary majority) does not directly result from the constitution, the rule can be arrived at and distilled from a systematic interpretation of the constitutional text. First of all, the Slovak Republic is based on the principle of a parliamentary regime. The government is treated as ‘the supreme executive body’ (Art. 108 CSR) and is responsible to the National Council, which may fire the government through a vote of no confidence at any time (Art. 114 CSR). Furthermore, the president is not allowed to act arbitrarily. Instead, he/she is obliged to ‘ensure the regular operation of Constitutional bodies’ (Art. 101, para. 1 CSR). Also, scholars argue that the task of the president is to help to form a cabinet that stands a chance of winning a confidence vote in the Slovak parliament. The president is not expected to be the chief executive, nor the person presiding over cabinet meetings. Despite this way of argumentation, which appears convincing, we subscribe to the view that respect for a parliamentary majority primarily stems from a constitutional convention. Both views may be reconciled by saying that the systematic reading of the constitution is solidified by the parallel constitutional convention.

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been neither technocratic (McDonell & Valbruzzi, 2014) nor presidential (Brunclík, 2016) cabinets that might cast doubts on the solidity of the convention in Slovakia. The constitutional convention was not even breached in cases where the president first commissioned the leader of the largest party to form a cabinet even though he/she had little chance of winning a vote of confidence in the Slovak parliament. Once they proved unable to form a majority cabinet, presidents commissioned another person who was successful in creating a cabinet relying on a parliamentary majority (see below). The 2023 case is special in that one could speculate about the absence of parliamentary majority. Given the inability of parliamentary parties to form a majority cabinet (the Heger cabinet was defeated in no-confidence motion in December 2022), President ˇ Caputová appointed a technocratic cabinet in May 2023. However, even the non-partisan cabinet formed by Ódor failed to win the confidence vote in the National Council in June 2023. Consequently, President ˇ Caputová authorised the defeated cabinet to rule the country until a new ˇ 2023). cabinet is formed (Caputová Formateur Several scholars (e.g., Giba, 2020b; Káˇcer, 2022; Krošlák et al., 2016, pp. 59–62; Orosz & Volˇcko, 2013; Neumann, 2019; Palúš & Somorová, 2011, p. 363) have agreed that there is a relatively well-consolidated constitutional convention that relates to the steps the president takes prior appointing a prime minister. The constitutional convention50 obliges the president to commission the representative51 of the largest party to form

50 Drgonec talks about ‘constitutional tradition’ (Drgonec, 2018, p. 350; see also Drgonec, 2019, p. 1301) and considers the authorisation as a ‘logically inevitable’ step by the president (Drgonec, 2018, p. 350). 51 Following the fall of the Meˇciar cabinet due to a no-confidence vote in 1994, the president did not commission a representative of the largest party but the party itself to set up a cabinet. At that time, Kováˇc said, ‘I want to commission HZDS to try to establish a cabinet led by someone other than V. Meˇciar, because he was forced out of office through the no-confidence vote’ (Leško, 1996, p. 116). Subsequently, the president sent a letter to the leader of HZDS, Meˇciar, in which the president asked the party to form a coalition cabinet. However, the HZDS leader as well as the HZDS presidency declined the offer and decided to become an opposition party (Leško, 1996, p. 116). Even after the 1994 elections (see Fitzmaurice, 1995; Wightman, 1995), President Kováˇc did not commission the leader of the largest party but the party itself (Guniˇc, 2021, p. 460). Since then, a particular person (not a party) has always been commissioned to form a cabinet.

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a cabinet52 before that person is appointed as prime minister. If the representative of the largest party fails to set up a new cabinet, the president can commission another person.53 Although the term ‘formateur’ is not used in Slovakia,54 we shall keep using it55 to indicate the person commissioned by the president to form a cabinet. The ‘authorisation’ is neither presumed nor prohibited by the constitution,56 which merely says that ‘the Prime Minister shall be appointed and recalled by the President of the Slovak Republic’ (Art. 110, para. 1 CSR) and that ‘on a proposal of the Prime Minister of the Government, the President of the Slovak Republic shall appoint and recall other members of the Government’ (Art. 111 CSR). The convention, which filled in an area not precisely defined by the generally formulated constitutional text, has been solidified by several factors. First, all presidents (Michal Kováˇc, Rudolf Schuster, Ivan 52 In fact, 2 versions of this authorisation have been at play. First, the president commissions a person to negotiate about the new cabinet (e.g., Giba, 2020a, p. 340; Krošlák et al., 2016, p. 60; Orosz & Volˇcko, 2013, p. 8). Second, the president commissions a person to set up a new cabinet. In fact, the latter version is more precise as it reflects the wording of the authorisation, which is issued in a written form by the Slovak president ˇ (Caputová, 2020b, 2021; Gašparoviˇc, 2006, 2010, 2012; Kiska, 2016, 2018a; Schuster, 2002). However, there has been no practical difference between the 2 versions, and the authors are not strict in separating the 2 versions in terms of how the convention is usually formulated. For example, Marek Guniˇc uses both formulations in the very same text (Guniˇc, 2021). 53 Only quite recently have scholars begun writing about this practice as a convention (e.g., Kanárik, 2009, p. 236; Orosz & Volˇcko, 2013, p. 8). Only after the practice was repeatedly followed was it turned into a convention. Indeed, as early as in 1998, Orosz did not talk about this practice, which was still taking shape (Orosz & Šimuniˇcová, 1998, p. 100). In 2009, Svák and Cibulka wrote about a convention whereby ‘the prime minister is usually the leader of the winning party’ (Svák & Cibulka, 2009, pp. 652, 688). Still, the authorisation is missing from their account of the practice of government formation. 54 Slovak scholars sometimes use the term ‘designated prime minister’ (dezignovaný predseda vlády) (e.g., Guniˇc, 2021, p. 462; cf., Giba, 2021, p. 389; Procházka, 2019, pp. 26, 28, 152). The term was consistently used by President Gašparoviˇc as well, at least in the formal document through which formateurs were commissioned to form a cabinet (Gašparoviˇc 2006, 2010, 2012). 55 After all, we also used this term in another text related to the government formation in Slovakia (Brunclík & Kubát, 2021). 56 In this regard, we can observe a very similar pattern in the Czech Republic and some other countries in the region of East-Central Europe whose constitutions describe or at least indicate the ‘formateur’ and his/her role, even though none of the constitution use the term ‘formateur’ as such (cf., Horváth, 2022, pp. 302–305).

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ˇ Gašparoviˇc, Andrej Kiska, and Zuzana Caputová) have so far respected the rule, although they differed in terms of their non/partisanship and political views.57 Second, in most cases (the first term of office by Gašparoviˇc is one of the exceptions), the presidents and prime ministers have usually been mutually politically independent and/or were even embroiled in more or less intense conflicts with each other (for details, see Brunclík & Kubát, 2019, pp. 113–116; Kopeˇcek, 2008; Ovádek, 2021). However, despite these positions and times of highly conflictual relations with leaders of the largest parties, presidents did not hesitate to commission the latter with forming a cabinet. Third, in 1998, the presidential office was vacant, and the competence to appoint prime minister was, in line with the constitution (Art. 105 CSR), passed to the president of the National Council (i.e., the unicameral Slovak parliament).58 The then-president of the National Council, Gašparoviˇc, commissioned Ján Smerek (a HZDS representative) to form a new cabinet on 8 October 1998 (HN, 1998; Mališka et al., 2020, p. 14; TASR, 1998). Even though the president of the National Council faced criticism59 57 Kováˇc was a member of the then-largest political party in Slovakia (HZDS), although soon after he was elected to the presidential office he got into a bitter conflict with the HZDS government led by Meˇciar. Schuster was the founder and leader of one of the smaller Slovak parties (Party of Civic Understanding, SOP). Although his party was a member of the then-ruling coalition led by Dzurinda, the president tended to be critical of the Dzurinda cabinet. Gašparoviˇc was originally a HZDS party member, but he left the ˇ party in 2002 and founded the Movement for Democracy (HZD). Kiska and Caputová were elected to the presidential office as non-partisans, although Kiska later (once he left ˇ ). the presidential office in 2019) founded his own party ‘For the People’ (Za ludí 58 The 1998 elections are one of the most important in modern Slovak history. The election results can be interpreted as a victory for democratic forces preventing incumbent Prime Minister Vladimír Meˇciar and his HZDS from turning Slovakia into an authoritarian regime. Despite the fact that the incumbent HZDS took most votes, the party was defeated in practice because it proved unable to create a majority coalition (cf., Bútora et al., 1999). 59 For example, this step was criticised by Dzurinda (who later became prime minister). Dzurinda said, ‘The president of the parliament acts as if he did not notice results of the 1998 parliamentary elections, as if he did not notice information by the leaders of the Slovak democratic coalition (SDK), Party of the Democratic Left (SDL), Party of Civic Understanding (SOP), and the Party of the Hungarian Coalition (SMK) from the meeting of 8th October that these parties are now making a new parliamentary majority’ (HN, 1998).

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for being far from politically neutral and favouring another candidate, his behaviour helped pave the way for the future consolidation of the practice into a constitutional convention. Following HZDS’s failure to form a cabinet, Smerek returned the authorisation to the president of the National Council on 28 October 1998. The day afterwards, the newly elected National Council elected Jozef Migaš as the president of the National Council. Consequently, Migaš commissioned Mikuláš Dzurinda, the leader of the coalition of parties, to form a new cabinet on 30 October 1998. Since Dzurinda was successful in forming a government, he was appointed as prime minister on the same day (i.e., 30 October) (Mališka et al., 2020, p. 14). Fourth, the presidents seem to be well aware of the constitutional convention, and, in some cases, they even explicitly speak about a convention that obligated them to stick to the rule. For example, following the 2010 elections, President Gašparoviˇc commissioned Robert Fico to set up his cabinet and said that ‘it is a tradition which I stick to and which I will not break’ (Nový cˇ as, 2010). Also, before the 2020 election, President ˇ Caputová explicitly spoke about a constitutional convention regarding the ˇ role of the president in the government formation process (Caputová, 2020a). Fifth, the commissioning is formalised. The authorisation has regularly and consistently been issued in written form by the presidents since ˇ 2020b, 2021; Gašparoviˇc, 2006, 2010, 2012; Kiska, 2002 (Caputová, 2016, 2018a; Schuster, 2002). What is more, the written authorisation is given to the formateur in person, keeping a certain ceremony/protocol (Drgonec, 2018, p. 350). However, it appears that the authorisation of L. Ódor that took place in January 2023 was only informal without any ceremony and public attention, because at that time it was not clear whether L. Ódor would be appointed as prime minister. At that time, President ˇ Caputová warned Slovak political elites she would appoint a technocratic cabinet unless political parties are able to agree on snap elections to allow for a functional cabinet and the way out of a political crisis (Aktuality.sk 2023). The crisis triggered by Heger’s cabinet defeat in a no-confidence vote in December 2022 was not attenuated. Instead, it was accelerated by a couple of scandals and resignations from Heger’s caretaker cabinet. As ˇ a result, President Caputová announced her intention to appoint Ódor’s technocratic cabinet in May 2023 (TA3 2023a; 2023b). Coming back to the formal nature of the authorisation, it has never been given to more than one person at the same time. On top of this, if the formateur failed

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to set up a new cabinet, he/she felt it necessary to formally return the authorisation to the president (Giba, 2020a, p. 341; Giba et al., 2019, p. 240). Finally, and perhaps most importantly, constitutional actors have consistently complied with the convention in practice. In Slovakia’s history as an independent country, a prime minister was appointed 12 times (as of June 2023). In all cases, the authorisation took place prior to the appointment. However, in 3 out of 12 cases of government formation, the president did not commission the representative of the largest party. The first exception occurred in 1994 when the very first government formation since Slovakia’s independence in 1993 took place. At that time, the HZDS-led coalition by Meˇciar was defeated in a no-confidence vote (see Leško, 1996, p. 116; Müller-Rommel & Malová, 2001, pp. 73–74). President Kováˇc first recalled the cabinet and entrusted it with execution of its function until a new cabinet was appointed. President Kováˇc asked thenMinister of Finance Július Tóth to be the prime minister of a caretaker cabinet. However, Tóth refused the offer60 as Meˇciar and HZDS deemed the presidential step unconstitutional. Thus, the Slovak Republic had no working government at that time. Given the time pressure, the president could not address the Constitutional Court to provide a binding interpretation of the constitution. Instead, he had to appoint a new cabinet (Orosz & Šimuniˇcová, 1998, p. 101). However, since the ruling and then-largest party, HZDS, was weakened by defections, the situation in the National Council was unclear. Hence, the president probably did not hasten to appoint a new prime minister. Instead, he wanted to get a clearer picture of the situation in the National Council. Thus, he first commissioned Jozef Moravˇcík61 to set up a new cabinet on 14 March; 2 days later, Moravˇcík was appointed prime minister (Fitzmaurice, 1995, p. 205; Leško, 1996, p. 116; Pravda, 2018). The second exception occurred in 2002 when President Schuster did not commission Meˇciar, whose party (HZDS) garnered a victory in the

60 This information was kindly provided by prof. Ladislav Orosz, then-advisor of President Kováˇc. 61 The leader of the Democratic Union (Demokratická únia) that broke from the HZDS in April 1994.

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September elections,62 forming a new cabinet. Instead, he commissioned Dzurinda (the leader of the second largest party) to do the task. One could argue that this was a clear example of the convention being broken. Still, the situation was more complex. Shortly after the elections (on Monday, 23 September), the president met leaders of the parliamentary parties. He granted authorisation to none of the leaders. Instead, he gave them a five-day limit to negotiate. On Friday, he first met Meˇciar, who announced that he had been unable to set up a new government. Schuster then met Dzurinda, whom he appointed formateur (Mališka et al., 2020, p. 14; President.sk, 2002; see also Horváth, 2017, p. 55). All in all, the 2002 case only constitutes a formal deviation from the convention because Meˇciar de facto received the five-day informal mandate to negotiate with other parties about a new cabinet, even though Dzurinda gave a call to the president on Sunday 22 September and informed him that the right-wing parties agreed to form a new ruling majority coalition63 ; that Monday, he presented the president with details of his plans (SME, ˇ 2002). Finally, in May 2023, President Caputová appointed a technocratic (non-partisan) cabinet led by L’udovít Ódor. It should be pointed out that the presidents complied with the constitutional convention even in cases where it was more than clear which party/parties command/s a majority in parliament. The situation following the 2012 election64 is a case in point. At that time, the SMER party65 earned a victory in the elections and commanded a majority (more than 50%) of parliamentary seats so that its leader, Robert Fico, could easily set up a single-party majority cabinet (Topky.sk, 2012). In a way, it would be rational and legitimate had the president appointed Fico as prime minister without making him formateur first. Still, Fico was

62 Similarly, like in 1998, HZDS remained isolated in the Slovak parliament and was unable to form a majority cabinet. For more on the 2002 elections, see (Haughton, 2003). 63 Dzurinda came up with a written declaration of the leaders of the 4 parties, which

demonstrated their will to form a new coalition cabinet (Giba, 2021, p. 401). 64 For more on the 2012 elections, see (Spáˇc, 2014). 65 SMER (literally ‘direction’) is a Slovak political party founded in 1999. Between 2003

and 2005, it was officially labelled ‘Direction - the third way’, i.e., ‘SMER (tretia cesta)’. In 2005, it received a new label: ‘Direction – Slovak Social Democracy’ (Smer – slovenská sociálna demokracia). For brevity, we use ‘SMER’ throughout the book.

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only commissioned with the government formation at first, and he was appointed prime minister within 3 weeks. The constitutional convention has additionally been followed in cases where it was clear (or at least highly likely) that the representative of the largest party would be unable to set up a new cabinet that would win the subsequent vote of confidence in the National Council as prescribed by the constitution (Art. 113 CSR); this was likewise the case in 1998, 2002 (see above), and 2010 (Giba et al., 2019, p. 240), and following their failure, a new formateur had to be commissioned. In 2010, Fico’s SMER obtained an electoral victory, and President Gašparoviˇc appointed Fico as formateur (Nový cˇ as, 2010). Gašparoviˇc said that even though right-wing parties received more votes in the 2010 elections,66 ‘it would be unfair if I did not commission the election winner’ (SME, 2010). However, Fico received only 10 days to form a cabinet. Fico negotiated with parliamentary parties in an effort to convince one of them to support SMER’s cabinet. Speculations that one of the small parties might eventually accept SMER’s invitation to form a coalition cabinet, which largely revolved around KDH, did not turn out to be realistic because none of the parties were willing to make a deal with Fico (Hynˇcica, 2011, p. 95); SMER was eventually forced to give up the task of forming a cabinet, returned the authorisation (Pravda, 2010), and became an opposition party. There is one more issue regarding the formateur role. One may pose the question of whether the formateur rule applies universally or only to the post-election period. So far, 12 cabinets have been appointed in Slovakia since 1993. In 8 cases, the cabinets were appointed following elections, whereas in 1994/1, 2018, and 2021, cabinets were appointed during the mid-term. There has been no significant evidence to argue that presidents behave on the basis of a different logic than that of the immediate post-election situation. In 1994 (Meˇciar), 2018 (Fico), and 2021 (Matoviˇc), cabinets primarily resigned due to problems and scandals with their prime ministers, whereas incumbent parties were determined to keep ruling with another prime minister (see Griffen, 2018, p. 5; Guasti, 2021, p. 98). Thus, in line with the constitutional convention, presidents commissioned a representative of the largest party to form another cabinet. As a result, it can be concluded that hitherto constitutional practice does not allow us to differentiate between an immediate

66 For more on the 2010 elections, see (Haughton et al., 2011; Pink, 2011).

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post-election situation and government formations that do not immediately follow parliamentary election. Thus, the constitutional convention can be understood as follows: whenever the president is about to appoint a new cabinet, he/she shall first commission the representative of the largest party to form a new cabinet. Again, the 2023 technocratic cabinet appointed in a mid-term period deviates from this practice. Timing of Appointment of Prime Minister and Ministers There is an important difference between government formation in the Czech Republic and Slovakia. Neither the Czech nor the Slovak constitution stipulates a precise timing of appointing prime ministers and ministers, but a different practice, growing into a convention in both contexts, has materialised in each country. In the Czech Republic, the constitutional convention clearly separates the timing of appointing prime ministers and ministers, which has led to a situation of 2 coexisting prime ministers (see Gerloch et al., 1999, p. 193; Pavlíˇcek & Hˇrebejk, 1998, p. 248; Sládeˇcek et al., 2016, pp. 688–689; see also Sect. 4.1.1). In Slovakia, a much less controversial timing for appointments took root. The formateur is appointed as prime minister only after it is clear that the person is able to set up the cabinet and that cabinet seats are allocated among specific persons. Immediately afterwards, the president also appoints ministers (as proposed by the prime minister67 ) of the new cabinet. It should be pointed out that this scenario differs from the Czech practice in which, for a couple of weeks, 2 prime ministers (the outgoing and the incoming ones) exist (Giba, 2020a, p. 340; Orosz & Volˇcko, 2013, p. 8). In Slovakia, there is also an overlap of prime ministers’ mandates, but it is only of a technical nature because it lasts only a couple of hours (e.g., Giba, 2020a, p. 340; 2020b; see also Giba et al., 2019, pp. 240–241). To the best of our knowledge, there has been neither scholarly nor political debate about this practice, which at least indirectly implies a general consensus of constitutional actors on this practice that may be regarded as another constitutional convention in Slovakia (Table 4.3).

67 However, the president is informed about the candidates for ministers well before the appointment process. In other words, the president is informed by the formateur about the names of the candidates. In order to fully respect the wording of the constitution, immediately afterwards, the president appoints the prime minister, and the latter officially hands over proposals for ministers to the president.

4

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Table 4.3 Government formation in Slovakia Prime Minister

Authorisation Appointment Formateur Party relation date date period

Jozef 14/3/1994 Moravˇcík Vladimír 31/10/1994 Meˇciar II Mikuláš 30/10/1998 Dzurinda I Mikuláš 27/9/2002 Dzurinda II Robert 20/6/2006 Fico I Iveta 23/6/2010 Radiˇcová Robert 15/3/2012 Fico II Robert 9/3/2016 Fico III Peter 15/3/2018 Pellegrini Igor 4/3/2020 Matoviˇc Eduard 30/3/2021 Heger L’udovít 7/5/2023 Ódor

16/3/1994

2

13/12/ 1994 30/10/ 1998 16/10/ 2002

43

4/7/2006

14

9/7/2010

17

4/4/2012

21

23/9/2016

14

22/3/2018

7

21/3/2020

17

1/4/2021

2

15/5/2023

8

1 19

Number of formateurs

Leader of the second largest party68 Leader of the largest party Leader of the second largest party Leader of the second largest party

1

Leader of the largest party Representative of the second largest party Leader of the largest party Leader of the largest party Representative of the largest party Leader of the largest party Representative of the largest party Technocratic/ non-partisan cabinet

1

1 2 1

2 1 1 1 1 1 1

Source Own compilation based on various resources

Grey Zone of Constitutional Conventions We have only been able to identify the grey zone of constitutional conventions in the Slovak government formation process.69 Generally 68 Strictly speaking, the Democratic Union was established in April 1994, i.e., only after the rise of Moravˇcík’s cabinet in March 1994. 69 Let us very briefly mention one more matter regarding a potential constitutional

convention in Slovakia. Until 1999, the Slovak president was endowed with the power to attend and even preside over cabinet meetings. However, to the best of our knowledge, the president (Kováˇc) only used this power twice. In both cases, the meeting was only formal and ceremonial without any implications for presidential powers overall. First, President Kováˇc was present at the cabinet meeting shortly after he was elected in 1993.

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speaking, the formateur constitutional convention has been relatively well entrenched in the Slovak constitutional system. However, if we analyse the convention in further detail and context, we can find that there are several issues pending clarification. On these issues, one can identify varying degrees of uncertainty. These issues have repeatedly appeared in debates about the proper role of the president in forming the government, and we therefore deem necessary to introduce these issues in a more intricate manner. Is There a Convention that the President Appoints a Representative/ leader of the Largest Party as Prime Minister?70 From the outset, we can assert that there is no convention that would oblige the president to appoint the leader/representative of the largest party as prime minister in Slovakia. The first explanation is a theoretical one. There are no sufficient constitutional and political preconditions for a convention akin to that which took root in the UK and some other Commonwealth countries characterised by a bipartisan system where one of the parties usually controls a parliamentary majority (cf., Galligan & Brenton, 2015). Given the proportional electoral system that is conducive to multipartism in Slovakia, the largest party, as a rule, does not necessarily have enough coalition potential (cf., Sartori, 1994) to form a majority

Second in 1994, Kováˇc visited the newly appointed cabinet led by Moravˇcík (Orosz & Šimuniˇcová, 1998, p. 102). Schuster never used the power, and other presidents did not possess this power at all. However, the practice of not attending cabinet meetings could not be understood as a constitutional convention. President Kováˇc perhaps did not use this power because he was in a bitter conflict with Prime Minister Meˇciar and did not wish to exacerbate the conflict further. Still, the non-usage did not last for a long time and thus did not translate into a convention. Hence, the criteria of a constitutional convention (usus longaevus and opinio iuris ) are not met. Also, to the best of our knowledge, experts did not speak about a constitutional convention in this area either. The 1999 amendment eliminated this presidential power from the constitution because this provision contradicted the parliamentary nature of the Slovak political system. The power might result in further undesirable intra-executive conflicts (cf., National Council, 1998; cf., Giba, 2011, p. 108). 70 As we show in subsequent paragraphs, there has been a debate on who the winner

of the election is and what the largest party is. Unlike in the Czech Republic (as exemplified by the 2021 elections), the party with the largest number of seats in Slovakia also gains the largest number of mandates. As for the election winner, most scholars as well as politicians argue that the election winner is the party with the largest number of votes (mandates).

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cabinet.71 In addition, there is a constitutional provision that works somewhat against the above potential convention, obliging the president to ‘ensure the regular operation of Constitutional bodies by his/her decisions’ (Art. 101, para. 1 CSR). Some scholars claim that this provision encourages the president to appoint, as prime minister, a person who— with regard to the election results—has real prospects of forming a cabinet that would be supported by a parliamentary majority (cf., Drgonec, 2018, p. 350; see also below). By appointing another person, the president would run the risk of being criticised for not fully respecting the abovementioned constitutional provision and for wasting time, which clearly makes the government formation process longer (e.g., Orosz & Volˇcko, 2013, p. 8). The second explanation is empirical. There is too little evidence to suggest that there is a convention that the president appoints the leader/ representative of the largest party as prime minister. Indeed, in 5 out of 12 cases (1994/1, 1998, 2002, 2010, and 2023), the prime minister was neither the leader nor the representative of the largest party. What is more, only in 5 cases did the leader of the largest party become prime minister (1994/2, 2006,72 2012, 2016,73 and 2020). In the remaining 7 cases, the situation was different: in 3 cases (1998, 2002 and 2010), the largest party was unable to form a new cabinet following parliamentary elections. In 2 cases, the cabinet was set up by a representative (but not the leader) of the largest party since the leader of the party was forced to resign due to a scandal (201874 and 2021). In one case (1994/1), the prime minister (Moravˇcík) was derived from a splinter group that separated from the largest party, the then-HZDS led by V. Meˇciar (for details, see Leško, 1996). Finally, in 2023 a technocratic cabinet was appointed. All in all, representatives of the largest parties have generally accepted that they are not automatically appointed

71 Only in 2012 did a single party get more than 50% of the seats in the National Council (Spáˇc, 2014). 72 For more on the 2006 elections, see (Pˇcolinský & Štensová, 2007). 73 For more on the 2016 elections, see (Rybáˇr & Spáˇc, 2017). 74 In February 2018, an investigative journalist, Ján Kuciak, was murdered together

with his fiancee. Kuciak’s investigation identified links between the mafia and employees of the Slovak government. A general conviction about the corrupt establishment, including political elites, became an important precondition for Fico’s fall (see Mrvová & Turˇcek, 2018).

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as prime ministers because the principal precondition for this claim would be the command of the parliamentary majority.75 Is the President Obliged to Commission a Representative of an Extremist Party to Form a Cabinet If It Has Received the Largest Number of Votes/Seats? An interesting political as well as academic debate was triggered in 2020 due to pre-election polls (see SME, 2020) indicating that an extreme right-wing party, LSNS76 (People’s Party Our Slovakia—LSNS, led by Marián Kotleba), might win the 2020 elections in Slovakia (for details, see Haughton et al., 2021; Havlík et al., 2020). From our perspective, a relevant question was raised: is the president obliged to commission the representative of an extremist party which has won a victory in the election? Although the Kotleba party eventually came forth in the election with less than 8% of the vote, scholars have debated whether it would be legitimate to confer the authorisation to form a government on the leader of the largest party given the constitutional convention. Overall, 3 views in the debate, all of them explicitly taking account of the constitutional convention of formateur, can be discerned. The first view comes from the idea of a parliamentary system, where the government results from the parliamentary majority, respectively from the parliamentary elections. In the context of proportional representation and multiparty systems, coalition cabinets are standard patterns of government. Except for the cases when a single party controls more than 50% of the mandates (which only happened in Slovakia in 2012), the primary goal of the president is not to commission the leader of the largest party with forming a cabinet but to commission a person who is most likely to form a majority cabinet and win the subsequent confidence vote in the National Council. This does not necessarily mean that the person is the leader of the largest party (see Guniˇc, 2021, p. 451; cf., Drgonec, 2018,

75 For example, following the 2010 elections, President Gašparoviˇc commissioned Fico to form a new cabinet. However, since the latter failed, he announced on 23 June, ‘I will return to the president the authorization to set up a new cabinet which he gave me last week, because it is impossible to put into operation the idea of the SMER party about a strong, stable two-party coalition. Therefore, the president will have to commission someone else to set up a cabinet’ (Pravda, 2010). 76 The party is officially labelled ‘Kotleba - People’s Party Our Slovakia’ (Kotlebovci ˇ Ludová strana Naše Slovensko). For brevity, we use LSNS throughout the book.

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p. 350; Procházka, 2019, p. 24; Zelenajová, 2016, pp. 1072–1073).77 Such a step can be supported by a constitutional provision which states that the president ‘shall ensure the regular operation of Constitutional bodies by his/her decisions’ (Art. 101, para. 1 CSR). We can go on and consider a situation where the election is won by an extremist party. Marián Giba argues that the president should confer the mandate to a representative from the winning party. However, his task would not be to form a cabinet but to form a parliamentary majority. Only after the respective candidate is able to show that he commands a parliamentary majority would the president commission him/her to form a cabinet. In this context, Giba challenges the conventional understanding of the winner of the election, i.e., the party which receives the largest number of votes/seats in the elections. Given the proportional electoral system, the winner may not necessarily be the party with the highest number of votes/seats but the party (or coalition of parties) that is able to command a majority in parliament. The losers are those who end up in the opposition (Giba, 2020b, 2021, p. 396). This position clearly undermines the hitherto practice whereby presidents first turn to a representative of the largest party, even though so far it has never been an extremist group. On the other hand, Giba’s arguˇ ments have been addressed to President Caputová, who accepted this line of reasoning in 2020. She said she would do everything to avert ˇ 2020a).78 Origiany government which would include LSNS (Caputová, ˇ nally, Caputová ruled out the possibility of meeting the leader of the party, Kotleba. However, later on (as the popularity of the party increased), she admitted that she would meet Kotleba, but only if the party won the election and only out of respect for the winning party. Yet, she would not commission the party to form the cabinet: ‘If this party happens to be the first in the election and if I meet with its representatives, it would only be a gesture of respect for the will of the people. However, that does not mean that I would commission them [LSNS] to form a government’ ˇ 2020a). (Caputová, Even though she explicitly accepted the existence of the constitutional convention, which is generally seen as a positive statement that may, 77 This is a generally accepted position by most experts in the Czech Republic. 78 An extreme step would be to resign from office, but such a possibility was ruled out

ˇ by Caputová because she would abdicate responsibility for her role in the political system ˇ (Caputová, 2020a).

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in turn, facilitate the consolidation of the convention (cf., Neumann, 2021, pp. 385–386), she somewhat shifted the meaning (content) of the convention: ‘So far, the constitutional convention has been that the president at least meets a representative of the party that received the most votes, even though she does not have to commission him to form ˇ 2020a).79 In other words, she claimed that the a cabinet’ (Caputová, convention meant a tradition of a meeting between the president and the representative of the largest party; however, she did not claim that the latter is commissioned to form a cabinet. This position means a clear deviation from the constitutional convention as it was understood before. The second view is put forward by Marek Káˇcer (2022), who appreciates Giba’s effort to isolate extremists. However, he disagrees with his interpretation of the winner of the election given the fact that all presidents have so far commissioned a representative of the largest party to form a cabinet. Káˇcer argues that the constitutional convention should be clarified to exclude extremists. Thus, the convention would oblige the president to commission the representative of the largest party to form a government, but the ‘assignment cannot be granted to a party professing extremist ideology’ (Káˇcer, 2022, pp. 7–8). The third view argues that the president should commission the leader of the largest party even if it is an extremist group. This position is justified by Jakub Neumann (202180 ), who claims that it may be difficult to say that a certain party is extremist. Along with this, the label ‘extremist’ can be abused for political purposes. It may furthermore be difficult for the president to find out which parties command a majority. Again, the president may be blamed for breaching her/his political neutrality and preferring a certain cabinet constellation. Instead, as Neumann argues, the president should be obliged to confer the mandate to form a cabinet on a representative of the largest party. Such a step is clear, predictable, and easy to present and explain publicly. On top of this, it is basically fair toward the largest party, i.e., the winner of the election, who makes a legitimate claim to form a cabinet. Only after the winning party fails to form a cabinet should the president address another candidate that is most likely to form a cabinet and that would enjoy parliamentary confidence.

79 Caputová ˇ argued that since LSNS’s coalition potential is zero, the real winner of the

ˇ election is the one who is able to command a parliamentary majority (Caputová, 2020a). 80 A direct critical reaction to this view is presented by Marián Giba (2021).

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Neumann also claims that the counter-argument, saying that conferring the mandate to form a cabinet to the largest party that clearly stands little chance of succeeding is a waste of time, is not strong enough. By conferring the mandate to the largest party, the president would not bypass the winner, but, at the same time, it would turn out that the winner was unable to form a cabinet (Neumann, 2021, p. 387). It should be pointed out that authorisation of the leader (representative) of the largest party does not automatically presuppose that this candidate will later be appointed as prime minister. Therefore, even if an extremist party’s candidate is commissioned with forming a cabinet, the extremist party is still far from being a ruling party. So far, an extremist party has never won a victory in parliamentary elections. All 3 positions presented above remain relevant for academic as well as political debates, which, however, does not provide the Slovak constitutional doctrine with a clear idea of how to proceed in a situation where extremists become the largest party in the elections. Is the President Obligated to Appoint Ministers as Proposed by the Prime Minister? There are a couple of suitable conditions conducive to the rise of a constitutional convention in the area of appointing cabinet ministers. First, the constitutional text is not entirely clear in this regard and leaves a relatively significant space for political actors. Notably, prior to the 1999 amendment, scholars argued that the president was allowed to reject a candidate proposed by the prime minister (cf., Orosz & Šimuniˇcová, 1998, p. 100). Second, the appointment of ministers is a regular and frequent practice that might facilitate the emergence of a constitutional convention. However, the actual constitutional and political practice has not resulted in unambiguous, clear, or settled patterns of ministerial appointments. Instead, occasional conflicts over (not) appointing/recalling candidates have been in place since 1993.81 In addition, these conflicts have 81 President Kováˇc, who was in a constant political conflict with Prime Minister Meˇciar,

refused to appoint Ivan Lexa as the Chairman of the Slovak Secret Service. Kováˇc argued that Lexa ‘does not fulfill requirements’ and ‘does not enjoy my trust’ (Kováˇc, 2010, p. 155). Meˇciar did not give up his effort to push Lexa through and nominated him as the minister for privatisation. However, Kováˇc rejected Lexa once again. Even though Kováˇc was criticised by HZDS for not having appointed Lexa, this step was not constitutionally questioned (Orosz & Šimuniˇcová, 1998, p. 100), and the president got away with this behaviour. On the other hand, Kováˇc did not reject other ministerial candidates in an

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repeatedly occurred despite the fact that (1) the Constitutional Court ruled in a very similar matter (recalling ministers from cabinet) (I. ÚS 39/ 93) and (2) the 1999 constitutional amendment was supposed to clarify the matter. The 1993 resolution by the Constitutional Court (I. ÚS 39/93) was precipitated by a conflict between President Kováˇc and Prime Minister Meˇciar. In January 1993, Meˇciar found himself in a conflict with Minister of Foreign Affairs Milan Knažko ˇ and tried to get rid of him, asking President Kováˇc to recall him. However, the president claimed he was not obligated to comply with the prime minister’s request to remove Knˇ ažko. Despite the fact that Kováˇc asked the Constitutional Court to resolve the dispute, he eventually recalled Knˇ ažko (Brunclík & Kubát, 2019, p. 83; Procházka, 2019, pp. 120–121). The Constitutional Court concluded that the president was obliged to deal with the proposal to recall a minister, but he was not obliged to recall him/her (I. ÚS 39/ 93).82 Although the Constitutional Court dealt with the problem of recalling a minister, its argumentation can be related to the issue of appointing ministers (for a critical analysis of the ruling, see Giba et al., 2019, pp. 241–244). The 1999 amendment was supposed to eliminate the unclear wording of the constitution (e.g., Kanárik, 2009, p. 237; Krošlák et al., 2016, pp. 538–539; Orosz et al., 2009, p. 118).83 However, this attempt to

effort to not escalate the conflict (Kopeˇcek, 2008). Kováˇc’s successors in the presidential office have also used their power to block and delay ministerial appointments, but only rarely (Malová & Rybáˇr, 2008, p. 195; Mesežnikov, 2002, pp. 28, 32). For example, President Gašparoviˇc delayed the appointment of the new minister of culture in 2005 when he questioned the competence and skills of the candidate which was eventually appointed (Mesežnikov, 2006, pp. 29–30). Another example occurred in 2018 when President Kiska rejected the appointment of Jozef Ráž as the minister of interior in Pellegrini’s cabinet (Denník N, 2018; Procházka, 2019, pp. 151–152; SME, 2018). 82 It should be noted that the Constitutional Court also ruled that ‘although the government…is the highest body of the executive power (Art. 108 CSR), the constitutional position of the president…is in fact dominant towards the constitutional position of the government. Without expression of the presidential will, neither rise, nor fall of the government is possible (Art. 111 CSR). The relative, not absolute, dominance of the president… towards the government results from this position’ (I. ÚS 39/93). 83 The respective constitutional provision was slightly linguistically amended with the aim of limiting presidential discretion in the area and forcing the president to accept candidates. However, despite the amendment, interpretations of the amended provision

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make the constitutional text clearer is doubtful (for details, see Giba et al., 2019, p. 242; see also Chapter 3). Hence, the question of whether the president may reject a candidate for ministerial office as proposed by the prime minister has not definitively been resolved, despite the 1999 amendment that was thought to impose an obligation of the president to appoint ministerial candidates proposed by the prime minister. In addition, scholarly literature is not unambiguous either.84 Even though in most cases presidents complied with nominations by prime ministers, they keep claiming the right to reject these candidates (see Guniˇc, 2021, pp. 462–464). All in all, despite the relatively favourable conditions for the rise of a constitutional convention, the key factors that may give rise to this kind of rule have not been met. Neither has a clear and long-term practice been settled since presidents have occasionally rejected nominations, nor has there been a consensus as to whether the president is obligated to appoint candidate ministers as proposed by the prime minister.85 4.2.2

Relationship to the National Council

Based on the overview of presidential legislative competences presented in Chapter 3, we have been able to identify 2 areas in which certain room exists that allows for the emergence of a constitutional convention. Still,

vary. Hence, Slovak presidents take advantage of the continued ambiguity of the provision and still claim the right to reject the nominees (for details, see Chapter 3). 84 For example, some authors, referring either to the decision of the Constitutional

Court (I. ÚS 39/93) or to the 2018 case when President Kiska refused to appoint Jozef Ráž as minister, argue that the president does not have to appoint the candidates (e.g., ˇ c et al., 2012, p. 587; Drgonec, 2015, p. 1260; Procházka, Bröstl, 2010, pp. 294–295; Ciˇ 2018b, 2019, pp. 28–29; cf., Drgonec, 2007, p. 825; 2012, pp. 1172–1173). Some other scholars point out the ambiguity in this issue and do not take a clear stand on the issue (e.g., Cibulka, 2014, pp. 276–279; Krošlák et al., 2016, pp. 538–539). Yet another group of scholars claim that the president is obliged to appoint the candidates as ministers (Horváth & Juhás, 2012, p. 125; Kanárik, 2009, p. 237; Palúš & Somorová, ˇ c et al., 2012, p. 559). 2011, p. 363; Svák & Cibulka, 2009, p. 687; cf., Ciˇ 85 Procházka expressed highly critical words on the constitutional regulation of govern-

ment formation and resignation: ‘The whole process of appointment, resignation and dismissal of the government, resp. its individual members, is regulated by the constitution so carelessly, cumbersomely, illogically and with such gaps that if the Parliament does not unite the regulation into a coherent system, we will argue about the aspects of this process for another 25 years’ (Procházka, 2018a, 2019, pp. 38–39).

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both belong to the ‘grey zone’ as no clear constitutional convention can be identified in the 2 areas. First, the president has the power to veto an act passed by the National Council. He/she can do so no later than 15 days after it was delivered to the president (Art. 87 CSR; Art. 102(o) CSR; see also Balog, 2007). It is interesting that the deadline in which the president is supposed to sign the act is by no means regulated. It is assumed, however, that the president should either sign or veto the act within the 15-day period. Despite this, doubts have been raised on how precisely the deadline for the veto should be counted if the last day of the deadline falls on a weekend (Giba et al., 2019, p. 234; Svák & Cibulka, 2009, p. 647).86 Originally, there was a question surrounding the nature of an act which is neither vetoed nor signed by the president. In 1993 (from 1 January to 2 March) and also in 1998–1999 (from 2 March 1998 to 15 June 1999), the presidential office was vacant, and during that time, acts were promulgated without president’s signature (cf., Orosz & Šimuniˇcová, 1998, pp. 94–95). The reason for this practice was sponsored by the Constitutional Court (I. ÚS 5/94), which argued that if acts cannot be proclaimed without presidential approval, the president would have an absolute veto; however, this is in direct contrast with the constitution, which gives the president a suspensive veto (i.e., veto that can be overridden). Scholars tend to support the view that the act can still be promulgated without the president’s signature (cf., Balog, 2007; Lipšic, 1998, p. 19).87 The 2001 amendment of the constitution can support this argument. The amendment introduced a provision stating that should the presidential veto be overridden, the president ‘does not sign the act, the act shall be promulgated even without the signature of the President’ (Art. 87, para. 3 CSR; resp. Constitutional Act No. 90/ 2001 Coll.; for a comment, see Procházka, 2019, p. 46; Svák & Cibulka, 2009, p. 646). The amendment was a direct reaction to previous disputes between President Schuster and the National Council about the legal impacts of unsigned acts. The amendment does not directly correspond to the situation in which the president neither vetoes nor signs a bill.

86 Drgonec argues that the time (15-day period) is up after 15 days have elapsed, irrespective of whether the last day falls on weekend, national holiday, or a weekday (Drgonec, 2007, p. 794). 87 For a contrary view, see (Valová, 2000, p. 167).

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Still, the 2001 amendment can substantiate (at least indirectly) the rule that acts not signed by the president can still be promulgated. However, the practice that allowed the promulgation of acts not signed by the president cannot be regarded as a constitutional convention. First, the practice appears extremely rare,88 and the long-term practice is missing as well. Second, the literature is silent about the practice. What appears more relevant is the 2001 amendment and the 1994 ruling of the Constitutional Court (I. ÚS 5/94), although both the amendment and the ruling do not explicitly regulate the question in point. The second area relates to the constitutional provision stating that the president ‘shall inform the National Council of the Slovak Republic of the state of the Slovak Republic and of major political issues’ (Art. 102, para. 1(p) CSR). This is a traditional prerogative of the head of state. However, a few issues have remained unresolved, notably frequency and the form of such reports, which remains unregulated by formal (constitutional or legal) rules (Domin, 2014; Giba et al., 2019, p. 236). Also, it is unclear whether the president is obligated to issue such reports or not. Scholars tend to argue that the presidents may (but are not obliged to) issue the ˇ c et al., 2012, p. 556; Domin, 2014, p. 1057; Giba et al., reports (see Ciˇ 2019, p. 236; Orosz & Šimuniˇcová, 1998, p. 98; Palúš & Somorová, 2011, p. 362; cf., Procházka, 2019, p. 58).89 Looking at the way the constitutional provision was implemented, we can see significant irregularities as far as frequency is concerned (cf., Procházka, 2019, pp. 57–58). President Kováˇc used his presidential competences to report on the state of the republic 3 times in his 5 years in office (cf., Orosz & Šimuniˇcová, 1998, p. 98) and Schuster 4 times (between 1999 and 2004). In contrast, President Gašparoviˇc served for 10 years (i.e., 2 terms in office), but he issued the report only 4 times (for details, see Domin, 2014, pp. 1060– 1062). Kiska had 4 such reports (2015, 2016, 2017, and 2018) and

88 Although we lack precise data on this issue, we can only expect a handful of such cases. Ladislav Orosz only mentions one case. Moreover, a couple of experts that worked either in the presidential office or in the National Council could not find any relevant case. Here, we are grateful to Ladislav Orosz, Marek Káˇcer, Milan Hodas, and their colleagues for help with this particular question. 89 In contrast, Drgonec talks about the duty (Drgonec, 2012, p. 1139; cf., Drgonec, 2018, p. 349; see also Bröstl et al., 2021, p. 279).

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ˇ Caputová also had 4 (as of June 2023).90 All in all, reports are not issued more than once a year. On the other hand, these are not issued regularly (annually), as in 1993, 1997, 1998, 2000, 2004, 2007, 2008, 2010, 2011, 2012, 2013, and 2019 when presidents did not issue any reports on the state of the Slovak Republic. These irregularities have not been subject to a significant degree of criticism. Thus, although there has been room for a constitutional convention to emerge in the area of presidential reports on the state of the Slovak Republic, so far no clear pattern that would be considered binding91 for the president as well as other constitutional actors has emerged (cf., Domin, 2014, p. 1062).92 4.2.3

Relationship with Judiciary

As in the previous section, we cannot identify any constitutional conventions in the area where the president and justice interact. Thus, in the following account, there is no constitutional convention. Even if we admit that there is room for a constitutional convention, we may only speak of the grey zone. Appointment of General Prosecutor93 One of the most contested issues regarding the appointment powers of the president regards the General Prosecutor. As indicated above, the constitution does not provide clear guidelines as far as the degree of presidential discretion is concerned. The wording of the Slovak constitution 90 The reports can be found on the web-page of the Slovak president: https://www. prezident.sk/page/prejavy/. 91 One could at most argue that there is still a constitutional convention in that the report on the state of the nation is a competence, but not an obligation, of the president. Hence, the president has free discretion on whether to issue such a report or not. 92 On the other hand, this conclusion does not imply that this presidential competence is insignificant. Quite to the contrary, for example, the 1994 report by President Kováˇc became a trigger that encouraged the National Council to pass a vote of no-confidence in Meˇciar’s cabinet (e.g., Bröstl et al., 2021, p. 279; Domin, 2014, p. 1060; Orosz & Šimuniˇcová, 1998, pp. 98–99). 93 The General Prosecutor is not included in the same chapter of the constitution as the judiciary. Instead, it is delineated in a separate constitutional chapter. Still, we believe it is practical to discuss this particular area in this section together with the area of judges.

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on the appointment of the General Prosecutor is typical. Art. 102, para. 1(t) and art. 150 merely state that the president shall appoint and recall the General Prosecutor on the proposal of the National Council. Again, it is unclear whether or not the president is obliged to appoint the candidate nominated by the National Council. One may refer here to the decision of the Constitutional Court (PL. ÚS 14/06),94 which confirmed a general rule that the president is always entitled to independently assess whether a candidate meets the legal-material conditions95 necessary for the execution of the office the candidate is nominated for. However, what has become the core of the ambiguity and a source of conflict over the interpretation of the constitution was the question of whether the president may still reject the candidate even if the latter met the legal conditions (see Giba et al., 2019, p. 252; Krošlák et al., 2016, pp. 522–524). The conflict arose between the Radiˇcová government96 and President Gašparoviˇc in 2011–2012 (see Procházka, 2019, pp. 141–145).97 The conflict over the issue was resolved by the Constitutional Court, which ruled that ‘the President…is obliged to deal with the proposal of the National Council…for the appointment of the General prosecutor…pursuant to Art. 150 of the Constitution…, and if he was elected in accordance with legal procedures within a reasonable time, either to appoint the proposed candidate or to notify the National Council … that he will not appoint this candidate’ (PL. ÚS 4/2012). The president was allowed to reject the candidate not only because the latter does not meet

94 The decision was related to the appointment of the vice-governor of the Slovak central bank (see also Procházka, 2019, pp. 56–57). 95 Overall, 3 types of conditions can be discerned: (1) legal-procedural: the president merely verifies that the procedural conditions for appointment set by an act were met (i.e., president as a notary); (2) legal-material: the president verifies that a candidate fulfils the material conditions set by an act (as confirmed by the Constitutional Court PL.ÚS 14/06); (3) non-legal-material: the president may go further and consider other criteria that are not explicitly mentioned in an act (as confirmed by the Constitutional Court in its decision on appointing the General Prosecutor—PL. ÚS 4/2012). 96 Formally speaking, the disputing parties were the president and the National Council, which proposes the candidate for General Prosecutor. 97 In June 2011, Radiˇcová’s cabinet pushed through Jozef Centéš ˇ in the National Council as their candidate for General Prosecutor, but President Gašparoviˇc refused to ˇ ˇ appoint Centeš as General Prosecutor by citing Centéš’s alleged professional failure (for details, see SME, 2014).

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the legal requirements, but also because of ‘a grave fact relating to the person of the candidate, which reasonably calls into question his ability to perform his function’ (PL. ÚS 4/2012). To sum up, the Constitutional Court gave the president a significant degree of discretion, which has allowed him to effectively veto nominees for the General Prosecutor proposed by the National Council. Since 1993, only 7 General Prosecutors have taken office. Since the abovementioned conflict, only 2 General Prosecutors have been appointed. All these facts did not establish the necessary conditions for the rise of a constitutional convention, although after the conflict we may expect a significant degree of discretion from the president, who may feel encouraged by the Constitutional Court to reject the nominees for other than merely formal reasons. We expect that only after other General Prosecutors are appointed may the appointment practice take on a clearer pattern, which could turn into a constitutional convention in the long run. Appointment of the Judges of the Constitutional Court A very similar wording is used by the constitution for the appointment of the judges of the Constitutional Court, which provides that the president appoints the judges for a 12-year term by proposal of the National Council, which is in turn required to ‘propose double the number of candidates for judges’ (Art. 102, para. 1(s) and Art. 134, para. 1 CSR). Until 2014, all presidents had appointed half of the judges from the list of candidates nominated by the National Council. However, 3 seats at the Constitutional Court became vacant in 2014, and President Kiska refused 5 out of 6 candidates proposed by the National Council (Giba et al., 2019, pp. 254–255; Matulník, 2018, p. 84). The previous decision of the Constitutional Court regarding the General Prosecutor (PL. ÚS 4/2012) was instrumental in Kiska’s justification of his decision not to appoint the candidates. Kiska argued that a ‘grave fact’ about the integrity of candidates for the judges of the Constitutional Court undermined their eligibility. In particular, he argued that the candidates are neither known nor important authorities in the area of law. Kiska’s de facto veto over the candidates triggered a dispute over presidential discretion in appointing judges (for details, see Matulník, 2018; Procházka, 2019, pp. 64–69, 154–156; see also Chapter 5). In practice, the dispute meant that for a period of about 3 years, up to 3 seats at the Constitutional Court were vacant.

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The Constitutional Court issued 3 decisions. However, no binding interpretation of the constitution was formulated. When the 5 nominees were rejected by President Kiska, the president asked the National Council to elect 4 new candidates to fill the 2 remaining vacant seats. At the same time, the rejected nominees filed a complaint against the president. It is highly relevant for our study to point out that the suing nominees argued, among other things, that the president violated ‘the long term and established practice…’, whereby he ‘had so far always appointed as judges one half of the candidates, i.e., the number of judges required by the Constitution…’. (III. ÚS 571/2014). This clearly indicates that the notion of a constitutional convention was also at play, even though this was neither the only nor the most important argument against the president (cf., Matulník, 2018, p. 88). The Constitutional Court basically accepted arguments of 3 out of 5 nominees, abolished the presidential decision on not appointing them, and returned the matter to the president, who was supposed to decide again (for details, see Giba et al., 2019, pp. 255). President Kiska asked the National Council to elect the fourth candidate so that he could choose from among a double number of candidates. The National Council refused to do so again. Kiska initiated a procedure on the interpretation of the constitution at the Constitutional Court (Giba et al., 2019, pp. 254–256). He made an effort to find out whether the decision of the Constitutional Court regarding the General Prosecutor (Pl. ÚS 4/2012) may be applied to the appointment of the judges of the Constitutional Court. However, the Constitutional Court basically argued that the decision of the Constitutional Court (Pl. ÚS 4/2012) is not applicable to the appointment of the judges of the Constitutional Court and that the rights of the candidates to the position of the Constitutional Court were violated (see III. ÚS 571/2014; Pl. ÚS 45/2015). In addition, the Constitutional Court, among other arguments, referred to the hitherto constitutional practice which ‘had so far fully respected, i.e., acknowledged, that the president is obliged to appoint as the judges of the Constitutional Court from the double number of the candidates precisely the half of them’ (III. ÚS 571/2014). The dispute culminated in a decision from the Constitutional Court (I. ÚS 575/2016) in December 2017, and it stated that the president— by not appointing the candidates—violated their rights and invalidated 4 of President Kiska’s decisions on the non-appointment of the candidates. In addition, the Constitutional Court ordered the president ‘to act

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again and decide so that from a sufficiently selected number of candidates nominated to him by the National Council …, the president appoints 3 judges of the Constitutional Court…’ (I. ÚS 575/2016). The president respected the decision and appointed the judges to the Constitutional Court in line with the decision (see Cibulka & Domin, 2018, pp. 63–64; Giba et al., 2019, p. 256; for details, see Drgonec, 2018, pp. 357–362; Matulník, 2018). In practice, the position of the Constitutional Court means that the president is not allowed to reject the nominees to the Constitutional Court for reasons other than purely formal ones, and the Constitutional Court urged the president to appoint judges from among the nominees elected by the National Council. Hence, in practice, there is a significant difference between the appointment of the General Prosecutor, where the president enjoys a great deal of discretion, and the appointment of the judges of the Constitutional Court, where discretion is severely limited (Giba et al., 2019, p. 257). This approach, sponsored by the Constitutional Court, was strongly criticised by several Slovak scholars (see Drgonec, 2018, pp. 357–362; Krošlák et al., 2016, pp. 522–524). Although a couple of experts we interviewed regarding constitutional conventions mentioned that there might have been a constitutional convention as far as the appointment of the judges of the Constitutional Court was concerned, no unanimous practice has been settled so far (i.e., as regard the actual number of candidates from which the president may appoint judges). Instead, a significant conflict over the appointments arose, and the Constitutional Court issued 3 decisions that were accepted with little enthusiasm, both among scholars and some politicians. Thus, so far no constitutional convention has emerged in this area despite the judgement by the Constitutional Court (III. ÚS 571/2014) (for details, see Chapter 5) and despite earlier signs of such a rule; only future appointments may show whether the dispute over the appointments was a mere deviation from the rule, which may turn out to be another constitutional convention whose settlement was only decelerated by the constitutional dispute. 4.2.4

Classification of Constitutional Conventions

In the previous analysis, we identified 3 presidential constitutional conventions: (1) the president respects a parliamentary majority, (2) formateur, and (3) almost concurrent timing of appointing the prime

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minister and ministers. Let us now look at the conventions from a theoretical point of view and classify them in line with the variables of the conventions presented in Chapter 2. As for the origins of the conventions, we can say that none of them were established through an explicit agreement. Instead, the practices, which later turned into conventions, emerged from a precedent and as a reasonable and legitimate way the president acts to make sure that the appointed prime minister will be successful in a subsequent confidence vote in the National Council. Hence, the president first commissions a formateur and, only after it is highly likely that her/his cabinet will win a confidence vote and the composition of the cabinet is clear, then appoints this person as prime minister. The first Slovak president, Kováˇc, started this practice in 1994 following the fall of the Meˇciar cabinet, which was defeated in a no-confidence vote (Leško, 1996, p. 116; Pravda, 2018). As for the character of the conventions, the rule that presidents respect the parliamentary majority in the government formation process is an interpretative convention as it results from a specific interpretation of constitutional provisions. The formateur convention is a creative constitutional convention because an additional step (i.e., formateur) in forming a government is created.98 The constitutional convention regulating the timing of the appointments can be labelled as interpretative. Even though the constitution is silent about the precise timing of both appointments, it is clear that the sequence of appointments as regulated by the constitutional convention corresponds to the text of the constitution, which assumes that the president first appoints a prime minister and then—on the latter’s proposal—ministers (Art. 110, para. 1 and Art. 111 CSR). No one has ever seriously challenged the practice of formateur as well as the timing, which by no means contradicts the constitutional text; thus, the conventions cannot be regarded as contra constitutionem but rather as preater constitutionem.

98 One could also argue that it contains an interpretative element because the president

is basically obliged to address a representative of the largest party, which is, in general, most likely to form a cabinet in line with the logic of parliamentary regimes. This expectation results not only from an interpretation of the constitution but also from a general understanding of the term ‘election winner’ (for a debate, see Giba, 2020b; Káˇcer, 2022; Neumann, 2021).

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A crucial issue is the relationship between the constitutional convention and the real (de facto) power of the president. The first convention (president respects the parliamentary majority) clearly weakens the president and imposes a duty to act in a particular direction. His discretion is limited, even though he still has some room for manoeuvring. The formateur case is not easy to interpret in this regard. In general, the government in parliamentary or semi-presidential regimes tends to be ‘the result of negotiation between parliamentary parties (and also among them) and the president’ (Kopeˇcek & Brunclík, 2019, p. 111). Depending on the political circumstances, particular provisions, and also constitutional conventions, the outcome of the government formation process may be closer to the preferences of the president or the preferences of parliament (for a debate, see Brunclík & Kubát, 2021; Kopeˇcek & Brunclík, 2019). The president is formally free to appoint a prime minister because the constitution does not give the president instructions for the government formation process. From this point of view and interpreting art. 110 in isolation from other constitutional provisions, the president is a relatively strong player in the government formation process. However, scholars are in agreement that the degree of presidential discretion in this area is limited given existing constitutional conventions and/or other constitutional provisions. First, the president ‘shall ensure the regular operation of Constitutional bodies by his/her decisions’ (Art. 101, para. 1 CSR). Second, the government is accountable to the National Council, with the former’s duty to ask for confidence in 30 days after appointment (Art. 113 CSR). Hence, the president is, in practice, significantly restricted in the appointment of prime minister. One can take 2 perspectives on the formateur constitutional convention as regard its impact on the real power of the president. The first perspective is based on the argument that the constitutional convention increases the power of the president as it enlarges his/her room to manoeuvre by inserting a special step (authorisation to form a cabinet) in the process of forming a government. The president becomes highly relevant in the government formation process even before a new prime minister is appointed. By commissioning the formateur, the president may keep control over the government formation process. The president may repeatedly determine the person of the formateur. If the formateur fails, he/she designates another formateur. Only once the president can be sure

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the formateur is able to secure a parliamentary majority does the president appoint the prime minister.99 The second perspective emphasises the role of the constitutional convention as limiting the power of the president. In particular, the president is obliged to first address the representative of the largest party. In practice, it means that this person is a clearly defined person who cannot be confused with another person. Thus, the president is forced to act in a very predictable way without much discretion. Perhaps only when the formateur proves unable to set up a new cabinet is the president’s manoeuvring space larger as he/she is no longer obligated to turn to a specific person. The convention does not dictate that he/she must commission the representative of the second largest party. Instead, the president is expected to select the person who is most likely to form a new cabinet (cf., Giba, 2021, p. 403; Neumann, 2021, p. 387; Svák & Cibulka, 2009, p. 652). Still, usually very few other potential formateurs that would not fail are at hand. Indeed, in all 3 cases, when the largest party was unable to form a cabinet (1998, 2002, and 2010), the president could not hire a more appropriate person than the representative of the second largest party. In addition, the president never had to look for a third formateur. Thus, the constitutional convention generally limits the power of the president, whose discretion is significantly curtailed. Connected to the previous point, the constitutional convention regulating the timing of the appointment increases the de facto power of the president. Like the Czech constitution, the Slovak constitutional text does not stipulate whether the appointments of the prime minister and ministers occur within a time period between both constitutional acts, or immediately after one another. The Slovak practice is that the president appoints formateur as prime minister only when it is clear that the potential cabinet shall win a vote of confidence and when all the ministers are nominated. As a result, ‘the cabinet is being set up by a person who is not 99 Especially under specific conditions (i.e., when the government’s legitimacy is undermined despite commanding a parliamentary majority), the president’s position may allow for a stronger leverage. This is precisely what happened in 2018 following Ján Kuciak’s murder. Fico’s cabinet was forced to resign. Instead, the ruling SMER party nominated another candidate for prime minister, Peter Pellegrini. However, President Kiska refused to appoint the Pellegrini cabinet because he could not accept one of the nominees, Jozef Ráž. It was not until Ráž was replaced with another candidate that Kiska appointed the Pellegrini cabinet (Denník N, 2018; SME, 2018). For an analysis of the case, see Giba (2018), or Procházka (2019, pp. 26–27).

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yet a prime minister. The person remains a formateur until having set up a new viable cabinet, pending appointment. From the president’s perspective, this practice is advantageous, because there is no room for disputes as to whether the president is unconditionally obliged to appoint anyone as minister. Candidates for ministers are not proposed by the prime minister, but only by a formateur’ (Brunclík & Kubát, 2021, p. 7).100 In other words, whereas it would be highly conflicting if the president refused to appoint the ministerial candidates proposed by the prime minister, he/ she can relatively easily oppose such nominations because the formateur is not a prime minister yet and thus cannot take advantage of the constitutional role of prime minister in the government formation process (for a debate see Giba, 2018, 2020b).101 On the other hand, even though the formateur is constitutionally weak, the opposite is true in political terms, especially when the formateur enjoys a popular mandate from recent parliamentary elections (Table 4.4). All in all, the formateur convention reduces presidential discretion and consequently his/her de facto power in forming the government. It appears that the (almost unconditional) obligation to address the representative of the largest party curtails the manoeuvring room of the president; in practice, he cannot act at his/her discretion and his/her steps are highly predictable. On the other hand, the convention regulating the timing of appointments tends to increase presidential power, giving him/her tools to effectively block ministerial candidates. As far as the distinction between power-conferring and duty-imposing conventions is concerned, all the conventions can be classified as dutyimposing rules. The formateur constitutional convention dictates that the

100 Technically speaking, immediately after the president appoints the formateur as prime minister, the latter hands over proposals for ministers to the president in order to comply with the constitutional requirement that the ministers are proposed by prime minister, even though the president is informed about the nominated candidates well before the appointment procedure takes place. 101 This point can be illustrated by the 2018 government formation that took place following the fall of the Fico cabinet. President Kiska commissioned another candidate from the largest party, Pellegrini, to form a new cabinet. As a formateur, Pellegrini proposed Ráž as the minister of interior. However, Kiska informed Peter Pellegrini that he would not appoint Ráž. Kiska also published a press release where he publicly explained his position (Kiska, 2018b). It was clear that Kiska rejected Ráž given his close ties to the previous and highly controversial minister of interior, Robert Kalinˇ ák, who was involved in a number of scandals (iDNES, 2018; SME, 2018).

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Table 4.4 Presidential constitutional conventions in Slovakia Constitutional Origin conventions

President respects parliamentary majority Formateur from the largest party Timing of appointment

Relation to the constitutional text

Effect on Discretion real power of the president

Type

Precedent Interpretative Limiting

Dutyimposing

Fundamental convention

Precedent Creative

Dutyimposing

Meso-convention

Dutyimposing

Semi-convention

Limiting

Precedent Interpretative Enlarging

Source Own analysis

president first addresses the representative of the largest party to form a new cabinet. The same logic applies to the other conventions. As far as Heard’s classification of constitutional conventions is concerned, the convention that presidents respect the parliamentary majority is a fundamental convention. By not respecting the rule, the operation of the Slovak political regime would either radically change, and the president might become ‘the chief-executive’, or the regime would run the risk of being dead-locked. The formateur constitutional convention can be classified as a meso-convention as it protects the widely accepted constitutional principle that the government is derived from a parliamentary majority (from parliamentary election). It is an important rule that takes account of the election results, and the president is obliged to comply with a legitimate claim of the largest party to form a cabinet. Even though the convention dictates that the leader (or representative) of the largest party should be commissioned to form a new cabinet, the convention does not obligate the president to appoint him or her prime minister. The timing of appointments can be classified as semi-conventions, defined by prescribing a desirable behaviour in the normal course of events. However, such practice may occasionally be disregarded without any significant impact (Heard, 1989, p. 72).

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4.2.5

Summary

The ambiguity of the Slovak constitution opens up room for potential constitutional conventions that help bridge natural gaps in the constitutional text, clarify its ambiguous provisions, define the precise role of the president in these areas, and establish a settled pattern of behaviour that might gradually turn into a constitutional convention. However, the actual constitutional and political practice did not live up to such expectations. Instead, constitutional ambiguity was conducive to frequent conflicts of presidents with other constitutional actors regarding the presidential appointments. It also led to constitutional amendments (see Chapter 3), which were supposed to eliminate such ambiguities. Also, the imprecise wording of the constitution made the constitutional actors address the Constitutional Court to rule in these matters (for the analysis of its decisions, see Chapter 5 as well as Drgonec, 2018, pp. 354– 362; 2019, pp. 1288–1294). These conflicts and the Constitutional Court’s decisions have triggered numerous academic debates about the degree of presidential discretion in these appointment powers. The lack of consensus of constitutional actors on the desired way the presidential appointment competences should be performed, varying clarity and quality of Constitutional Court rulings, and diverging opinions of Slovak leading experts in several relevant areas have all erected significant barriers for constitutional conventions in most of these areas. Given these limitations, we have been able to identify only 3 presidential constitutional conventions. Alongside the constitutional conventions, there is a ‘grey zone’ in which constitutional conventions are more than desirable, but so far political actors did not find consensus on clear rules. Notably, several presidential appointments fall into this category.

4.3

Presidential Constitutional Conventions in Hungary

The text of Basic Law is quite vague regarding the powers of the Hungarian president, which grants a wide amount of room for various interpretations and hence for conflicts over their precise ambit. As indicated in Chapter 3, many ambiguities were clarified by the Constitutional Court, but not each and every issue could be submitted for constitutional review, either for a lack of interest, time, or awareness of the problem. The nuances of cabinet formation, the appointment of ministers, or the

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consequences of the death of the prime minister were more pressing than to await a decision from the Constitutional Court. In other cases, the strategic ambiguity served the interest of everyone (e.g., the necessity of consultations between the parliamentary parties and the president), so it was not submitted to the authority of the Constitutional Court. Therefore, even if there is considerable case law, not everything is nor could be determined by the judiciary; hence, significant space remained for establishing various usages and habits on how to do things. Some of them were observed continuously, several of them were broken, and others were forgotten. This also means that the purely legal constitutionalism that the Constitutional Court declared to be prevailing was always a kind of noble lie, and several conventions were created under the radar. Nonetheless, the legalistic point of view had the by-effect that the binding force of their decisions was not scrutinised, and their observance gave rise to connotations of good behaviour or manners but with less of an actual obligation. The following lines intend to show how and why conventions emerged under these conditions, how they have been observed, and, of course, due attention will be paid to the question of why they did not evolve. 4.3.1

Relationships with Government

The Appointment of Prime Minister Contrary to the 1946 republican constitution of Hungary, which kept some classic powers of the monarch for the president, foremost the one to appoint (instead of merely propose) prime minister (Föglein, 1994, 2005), the democratic constitution of 1989 and its successor, the Basic Law of 2011, weakened the position of the president in this regard. The president merely proposes a candidate for the premiership, and the parliament votes on that person (Térey, 2020). If parliament does not provide a vote of confidence within 40 days of the first proposal made by the president, the president may dissolve parliament (Art. 3, para. 3(a) BLH). Although this constitutional rule includes some coercive elements in favour of the president, who may threaten parliament with dissolution if the candidate is not accepted, this power only exists in appearance. Parliament may give a vote of confidence for the proposed candidate and initiate a constructive vote of no confidence against the very same person in order to replace him or her with somebody else (Art. 21 BLH). None of these outcomes is optimal, so both sides (the

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parliament and the president) are motivated to find a suitable candidate within 40 days. Nonetheless, as President Mádl expressed, there are no guidelines on whom the president should nominate or how to find the proper person (Horváth, 2009, p. 98), and, strictly legally, the president is allowed to nominate anybody (even a non-partisan candidate, Küpper & Térey, 2009, pp. 1302–1303). This circumstance opens up room for establishing informal rules of cooperation, including constitutional conventions, between constitutional actors in order to secure a smooth functioning of the state. Over the last 3 decades, 2 usages have been established that seem to have hardened into conventions because they are constantly observed. First, the president consults the parliamentary parties in order to find out which party or coalition of parties is capable of building a cabinet. However, this is structured by pre-election coalitions as well as the election results, and the strongest party has the right to be consulted first. Second, it has also been established that the leader of the strongest parliamentary party should be nominated if he/she is capable of commanding the majority of the House. If the president does not observe this rule, his/her nominee will not be elected and would face harsh public critique. This person is basically the formateur; his/her nomination to the post of prime minister presupposes that he/she is capable of forming a cabinet and filling each ministerial post. In most cases, the strongest party was also capable of building a governing coalition or governing alone. Thus, lacunae of the vaguely formulated text did not become apparent until 2002, when the question arose as to whether the strongest party or the strongest parliamentary group has precedence.102 After the elections, the Hungarian Socialist Party [Magyar Szocialista Párt ] had 178 members of parliament though the alliance of 2 right-wing parties, Fidesz and MDF,103 who formed one parliamentary group, had 188 MPs altogether from the then-386 person parliament. Because this latter formation had no further possible coalition partners, and the Socialist Party could form a coalition with the liberals that would be capable of commanding a majority in the House, they got the opportunity to form a government. It needs to be added that if the 2 conservative parties had not built a tactical coalition, Fidesz

102 Similar difficulties arose in the Czech Republic (2021) and Slovakia (e.g., 1998). 103 The Hungarian Democratic Forum (Magyar Demokrata Fórum).

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would have only been the second largest party (Horváth, 2009, p. 98). Consequently, even if there were attempts to circumvent the established rule, these attempts instead showed that the parties were aware of that convention and knew that it had to be observed, hence trying to be seen at least formally as the largest one. It has also been established that parliamentary parties form possible governing coalitions in advance (basically on a common ideological basis), and the strongest among them is the formateur party that leads discussions with the president and claims to be heard first (Horváth, 2014, pp. 201–202). The rule was established after the first free elections in 1990, and the president acknowledged the claim from the party winning the most parliamentary seats to form a coalition. This was easily reinforced in 1994 as the strongest party also got an absolute majority in the National Assembly, and doubts were only raised—somewhat artificially— as 2 parties (FIDESZ and MDF) formed an electoral coalition in order to achieve a larger parliamentary club as a merger of the 2. The appreciation and observance of the formateur party and the claim of its leader to form a government have further led to an unbroken practice since 1990, which ensures that the prime minister is elected on the first attempt (Horváth, 2014, pp. 203–210). The Hungarian party system is rather polarised, and it is therefore very uncommon that (smaller) parties would switch sides and back a coalition with parties of other ideologies.104 On the other hand, this political climate of the Schmittian ‘us versus them’ makes it much easier to determine which parties are or are not capable of forming coalitions. Alongside this, the parliament is always in a position to overturn the government by means of a constructive vote of no confidence. Hence, if the president wants to disregard the parliamentary majority or nominate somebody from outside parliament, the House has retained the possibility of punishing this behaviour (Horváth, 2014, p. 198). The president has considerable power to influence politics for a few weeks, but this power is not unlimited, and he/she cannot overstretch the patience of parliament. Hence, the established cooperation between the president and the parliamentary parties might also be explained by this harsh reality. Nonetheless, the main actors often perceive and refer to this as a constant practice that has hardened into a convention (Horváth, 2014, p. 198). The reason for 104 From this point of view, it is of course very interesting to see the gradual change of the Jobbik party from a radical right orientation to a modest conservative one.

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this perception might be the fact that all nominations for the premiership were successful with the first attempt, and it would be politically embarrassing for the president if his/her nominee did not achieve the necessary majority (Horváth, 2014, pp. 199–201). Legal scholars (in accordance with dogmatic traditions) do not speak of a constitutional convention in regard to the formateur but emphasise that the rejection of the recommended person could lead to the dissolution of parliament, and so to a crisis in state affairs.105 This is to be avoided,106 and the president therefore has a legally binding duty to consider the possible outcome of the election, namely whether his/her candidate can receive the needed majority. This logic subsequently leads to a legal duty of cooperation with the president (Küpper & Térey, 2009, pp. 1302– 1303). The legal scholarship on this matter does not take into account the lacking enforceability of this envisioned duty of cooperation: not observing this duty would not be grounds for impeachment because the black letter of the law grants wide discretion. Quite simply, there would not be enough time nor room for legal proceedings to resolve the conflict between the president and parliament, so it would be futile to start such a debacle. Either parliament would overturn the government with a vote of no confidence, or the president would dissolve parliament for not electing a prime minister within 40 days. These options have a high political cost, and hence, this conventional rule has never been broken. Appointment of Ministers According to Art. 16, para. 7 BLH, the ministers are to be appointed by the president by proposal from the prime minister. At first glance, it is not clear as to whether the president is entitled to veto the candidates proposed by the prime minister, as is the case in the Czech Republic or Slovakia. The extent of this power was scrutinised by the Constitutional Court at the beginning of the 1990s, and it was clarified that the president could reject the appointment if the necessary legal prerequisites (like Hungarian citizenship or legally prescribed professional qualification, age) 105 See the explanatory note of the Act XL of 1990, which expressly states that the right to dissolve parliament is aimed at solving a political standoff resulting in an inability to govern the state. 106 Cf., Decisions of the Constitutional Court 8/1992 (I.30.) AB, 52/1997. (X. 14.) AB, 4/1999. (III. 31.) AB and 24/2000. (VII. 6.).

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were not observed, or if the appointment of the person could seriously endanger the democratic functioning of the State.107 This basically leads to an automatic appointment of ministers without having the right to assess their merits or suitability to the position. This question was clarified in regard to the powers as commander-in-chief,108 but it was also extended to the head of the public broadcaster,109 so it became clear very early on that this was a universal principle and role expected of the president; this was not challenged later and furthermore became the usual practice, reinforcing the interpretation of the Constitutional Court regarding the presidential position. It can be debated as to whether it is a convention or not. The appointment of ministers has never been subject to constitutional review: the president has never questioned the right of the prime minister to establish his/her cabinet, which might indicate some conventional elements. Nonetheless, after the initial decisions regarding presidential powers in 1991 and 1992, it was quite clear to everyone that the same rule would apply to every appointment; hence, no president has felt compelled to test the boundaries of the rule, which again reinforced the abstract interpretation given by the Constitutional Court. The case shows that the delineation between a convention and an abstract interpretation might be quite blurry. Dissolution of the Cabinet Taking into account the idiosyncrasies of the mixed Hungarian electoral system that combines elements of first-past-the-post and proportional electoral systems, which supports the winner with some bonus seats (and since 2010 has been further distorted), the ruling coalitions are mainly stable, meaning there have only been a very few and distinct cases on rebuilding a cabinet during an electoral period. The first was in 1993 after the death of Prime Minister József Antall, who was succeeded by Péter Boross in accordance with the will of the late prime minister and the wishes of the strongest governmental party. This was observed by the president to the fullest extent, which reinvigorated

107 Decisions of the Constitutional Court 48/1991 (IX.26.) and 36/1992 (VI.10.)

AB. 108 Decision of the Constitutional Court 48/1991 (IX.26.). 109 Decision of the Constitutional Court 36/1992 (VI.10.) AB.

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the rather limited role of the president in forming cabinets (Horváth, 2014, pp. 212–213). The second incident happened in 2004 after the socialist then-Prime Minister Péter Medgyessy literally gave a notice of 30 days instead of resigning with immediate effect. After the exposure of his activities as a counterespionage officer during the communist regime and due to further turbulences within the coalition, the then-Prime Minister Medgyessy was forced out of office, but there was a legal controversy around this issue because of the clear contradiction between the then-constitution and an Act of Parliament on the status of members of government. According to the constitution, the mandate of the prime minister (and simultaneously that of the cabinet) terminates at the moment of his/her resignation. The mentioned Act of Parliament (which had lower rank than the constitution) rendered a notice period of 30 days. The prime minister adhered to the black letter of the Act of Parliament (which was later found to be unconstitutional),110 gave notice, and went on holiday. The president also observed the black letter of the law and, actually contrary to the constitution, waited the 30 days out and let the coalition parties come up with a possible candidate for prime minister, whom the president then formally proposed to parliament (he even insisted that he could propose whomever he wanted, see Horváth, 2009, p. 98). The parties of the governing coalition nonetheless made it clear that if the president did not observe the established convention that the candidate of the strongest party is to be nominated, then they would still vote for the nominee but also overturn him or her at the earliest convenience. This passivity of the president and the blind obedience to acts of parliament were perceived as perfectly conforming with the expected role of a weak and rather ceremonial head of state as well as consistent with the rule of law and guarding the democratic functioning of the state (Bitskey & Tordai, 2005), which was only sporadically criticised (Zlinszky, 2005). The third incident happened in 2009 when the very unpopular thenPrime Minister Ferenc Gyurcsány needed to step down, but it was more than questionable as to whether then-President Sólyom would be as passive as his predecessors and accept the role of underdog. This fear was not unfounded because he was famous for not observing earlier 110 Decision of the Constitutional Court 55/2004. (XII. 13.) AB, which was pronounced several months after the actual conflict. The discrepancy between the rules, however, was identified earlier, see (Vincze, 2004).

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established conventions. Hence, he was not offered the opportunity to influence the outcome, and the prime minister was changed—rather atypically—by means of a constructive vote of no confidence of the governing party (Küpper, 2009). Although all these cases differ due to divergent causes of the dissolution of the cabinet (death, resignation, no confidence)—and therefore, a clear conventional rule is hard to establish—an underlying pattern or expected role seems to be formed: parliament does not expect a more active role from the president than in any other cases involving the formation of a new cabinet. The president is expected to be rather passive and wait for the parliamentary majority to come up with a solution. In the case of too much activism, the parties of the parliamentary majority are ready to constrain the president and manage the political process. This was demonstrated in 2004 when the president was threatened that his nominee would not be supported by the majority if he did not consult with the parliamentary parties, and it was illustrated again in 2009 when parliamentary parties circumvented the president. Moreover, the president and the prime minister, in all these cases, were of different political colours, so the passivity was not due to some shared political interests. A proactive role is not expected but sanctioned, which might be seen as a conventional proto-rule. Decorations and Awards State decorations express the appreciation and reverence of the nation. The most significant ones are created by the legislature and awarded by the president, who is supposed to express the unity of the nation. Grammatically, the Basic Law confers a wide range of discretionary power on the president in awarding decorations, prizes, and titles, the only limitation seeming to be that the award requires a countersignature. Contrary to this interpretation, the actual practice narrows the role of the president to a minimum: an award is made based upon a formal proposition submitted by the prime minister, meaning that the president cannot act on his/her own motion (suo moto). In other words, he/ she cannot nominate anyone for a decoration or an award but has to await formal proposals from the government. In order to not completely hollow out the role of the president, which would reduce him or her to a machine-like existence of obeying every wish and motion of the government, he/she is allowed to exceptionally reject a proposal as an emanation of the duty of guarding the basic constitutional values if a decoration

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would infringe those values (Petrétei, 2011a, 2011b).111 The only known controversy arose in 2006 when socialist then-Prime Minister Gyurcsány proposed some key functionaries of the late communist regime for state decorations, but the president at the time did not agree. At the end of the day, he awarded the decoration but did not shake hands with the persons concerned, signalling his discontent. The interpretation of these presidential powers is very narrow and contrary to the text of the Basic Law which—in line with the former constitution—does not mention any quasi-binding proposals of the prime minister (Kovács, 2009, pp. 1045–1047). Moreover, the countersignature makes little sense if the decision requires a proposal, which begs the question of the real ambit of these presidential powers. Nonetheless, this was never challenged, and most presidents accepted their very limited significance during the procedure, which reflects the leitmotif of the weak presidency even if the text would not shackle the presidents so much. Before the formal proposition is submitted, informal suggestions may be made for decorations; at this stage, the president has the opportunity to recommend some persons. His/her suggestions are by and large respected, even if they are not binding. 4.3.2

Relationship to the National Assembly

Initiating Legislation Since the adoption of the communist constitution in 1949, the president, earlier the Presidential Council, had the power to initiate bills (Art. 6, para. 1 BLH) or amendments of the Basic Law (Petrétei, 2015, pp. 13–16; Szomszéd, 2005, pp. 132–133). This institution survived the transition in 1989 and the adoption of the new Basic Law of 2012, even if only the first president submitted a few bills during his first term between 1990 and 1995 (Szomszéd, 2005, pp. 132–133). These bills were never adopted, and the president has also realised that he does not have the institutional capacity to prepare complex pieces of legislation nor the influence to whip them through parliament. Going against the will of parliament would only damage his/her reputation and undermine his authority; hence, this power has not been exercised since 1995, and it became the usual practice to not make use of it, which might be equalled

111 Decision of the Constitutional Court 47/2007 (VII. 3.) AB.

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to a convention, or more precisely a constitutional desuetude or atrophy (cf., Albert, 2014; Vermeule, 2012). It was observed for a long time and served to protect the reputation of the president by avoiding taking sides. Interestingly enough, the power to initiate legislation was also formally upheld after the great constitutional reform in 2011 even though it was one of the ‘zombie provisions’ (Law, 2013, pp. 248–250). At that time, this meant that the rule had not been applied for a long time and was not expected to be applied in the future: on the one hand, the presidents did not have the necessary personnel to prepare bills—apart from short symbolical ones—and, on the other hand, submitting a bill would mean participation in the daily political struggles, which the president is expected to refrain from. Veto Signing a bill into a law is one of the very real powers of the president. The former constitution and the Basic Law enable the president to raise a veto against a bill adopted by parliament and, in doing so, to influence the lawmaking procedure to a great extent (Petrétei, 2005, pp. 131– 150). The president may veto a bill for 2 reasons: because of some alleged unconstitutionality of legislation or because of political disagreements. The first one is basically a request for a preliminary constitutional review; the second one is sending the bill back to the parliament for reconsideration. The relationship of these 2 was clarified in 2003 by the Constitutional Court (Decision 62/2003 XII. 15): the president must choose from one of these 2 options, and, after doing so, he/she essentially cannot apply the other one. Therefore, if the bill has constitutional shortcomings, constitutional review is to be chosen; in case of a political disagreement, it has to be sent back to parliament because a double veto would be considered an obstruction of legislation. Consequently, the president has to carefully consider which type of veto he/she chooses. It further became a custom that opposition parties or the public could suggest or even request the president to veto an act of parliament (Sólyom, 2009), but the decision as to whether the president raises a veto and, if so, which kind remains completely within his/her discretion. This is especially true for borderline cases of unconstitutionality (Pálfi, 2020; Sólyom, 2009). In this respect, the presidents do not always respect the guidelines set out by the Constitutional Court, and if the result of the constitutional review is rather unpredictable, they are also ready to use the so-called political veto to

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put forward legal arguments (Pálfi, 2020; Sólyom, 2009). This flexible handling of powers is tolerated by parliament. If constitutional review (veto on legal grounds) is requested, this process enjoys priority over any other business of the Constitutional Court and is expected to be decided as soon as possible, even if there are no deadlines set. The interpretation of priority treatment relied on the benevolence of the Constitutional Court, which could have easily meant several months. This conventional interpretation was not convenient enough because important pieces of legislation could be left in limbo for a considerable amount of time; hence, the new Act on the Constitutional Court of 2011 set a deadline of 30 days.112 The political veto is not a very strong one because overturning it requires the same threshold as the original bill. As a result, it carries the same weight as the arguments put forward by the president against the bill. The political parties therefore consider the overturning of the veto as a pure formality. For instance, in 2003, the veto was overturned and the contested bill readopted without any debate on the arguments put forward by the president; consequently, the Constitutional Court had to step in. It declared that constitutional organs owe each other a duty of cooperation. Hence, the National Assembly must sincerely consider the reasons given by the president and override the veto only after such a debate.113 This duty follows from the principle of checks and balances (which the constitution did not explicitly contain in 2003), and these were again encompassed in the rule of law (which the constitution did contain). Possible conventions, habits, or usages did not play any role. The Hungarian Constitutional Court, in line with the German constitutional scholarship, yet again showed its preference to apply abstract principles rather than to acknowledge any normative value of usages and conventions or to invoke them for interpretation. Initiating Referenda A further possibility to influence the legislation could be, at least on paper, to initiate referenda, which the Basic Law of Hungary still enables the president to do (Art. 8, para. 1 BLH). Making use of it could have curb

112 Sec 23 para (5) of the Act on the Constitutional Court Nr. CLI of 2011. 113 Decision of the HCC 62/2003 (XII.15). AB.

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legislative power, but the president has never used this tool. A combination of the role expectation between passive behaviour and neutrality, the limited resources of the president, and the pointless conflict with political parties could explain why this power also became subject to atrophy. Nonetheless, after more than 3 decades of not being exercised, it would be more than controversial to make use of it and try to thematise political life. The constitutional desuetude—not using of power for a considerably long time—constitutes a conventional prohibition of making use of it in the future. The rationale behind it is also clear for a ceremonial figurehead: staying away from everyday politics. Hence, the elements of a convention—usus longaevus and opinio necessitatis —are undoubtedly to be found here. Nomination and a Duty to Consult Undoubtedly, one of the most influential powers of the president is to appoint or nominate candidates for some key constitutional functionaries of Hungary. The president, however, cannot act independently, and, in many cases, parliament has to vote on his/her candidate. However, the language of the constitution was not clear as to whether the president has any duty to consult other constitutional functionaries or political parties before he/she puts forward a candidate, or whether the president—under the observance of a clear separation of powers—should rather refrain himself or herself from those informal discussions and decide all alone about the nomination. Different presidents have approached this question inconsistently. During the first 3 terms of the presidency (1990–2005), it had been established that the president consults parliamentary parties before he/ she announces any official nomination to a position. The main purpose of consultation was to palpate the probability of the candidate being approved by parliament later on, which made sense taking into account the fragmented political landscape during the transitory years. The conventional nature of the rule showed the moment President Sólyom failed to observe it by not consulting the parliamentary parties regarding the nomination of the ombudspersons or the president of the Supreme Court. The parliamentary parties regarded this behaviour as a breach of an established convention; as punishment, they did not vote for the nominees on several occasions (hvg.hu, 2008; index-mti, 2009). The non-observance of the convention and the punishment for doing so led to further constitutional calamities because the positions were not filled for

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a longer period of time; hence, the duties could not be performed, and only the impacts of this circumstance coerced the parliament to change its attitude. However, this was only a short intermezzo, and after 2010, the practice of consultations and backchanneling before nominating a candidate was restored in a slightly different form. The landslide victory of FIDESZ coincided with the end of office for President Sólyom, and a more obedient personality, Pál Schmitt, was elected; he openly declared his wish to be a motor and not a brake within the newly established constitutional system. After his resignation in 2012 because of plagiarism in his doctoral thesis, János Áder, a leading politician of the ruling FIDESZ party, was elected. For the position of the president of the Kúria, the Attorney General, or the ombudspersons, the Hungarian president has always nominated personalities very close to the governing party, which could not have happened without proper prior consultation with party leadership. 4.3.3

Relationship to the Judiciary

Nomination of the President of the Supreme Court The most important non-legislative power of the president is to appoint or nominate candidates for some key constitutional functionaries of Hungary. However, being a ‘guardian of the democratic functioning of the state’—as the constitution summarises the main duty of the president—could include an implied power of thoroughly vetting the appropriateness of the possible candidates, as the first president, Árpád Göncz, believed; he was ready to carefully examine the nominees of the prime minister to some positions. The main conflict arose around the public broadcaster as the president refused to appoint several nominees of the prime minister to the board. The Constitutional Court—at the request of the prime minister—declared that the guarding of the democratic functioning of the state is no source of any new powers but a yardstick on how to exercise them. Hence, the president can only veto the appointment of a candidate meeting the minimal legal requirements if that would seriously endanger the functioning of the state, which is an extremely high standard.114 This role was accepted quite quickly, which might be explained by the fact that the political orientation of

114 Decision of the HCC 36/1992. (VI. 10.) AB.

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the president and the government overlapped for a considerable time (1994–1998 and 2000–2002). All of this was obviously to consolidate the interpretation given by the Constitutional Court. More telling is the story of the Supreme Court president illustrating the (limited) role of alleged conventions during the nomination processes. The president had the right to nominate the president of the Supreme Court of Hungary (Kúria), but neither the constitution nor the statutory provisions specified the preconditions of a nomination. The law on the judiciary of 1997 only stipulated that the National Judicial Council was to vet candidates, but it did not spell out any details of the applicable yardsticks. Yet, the result of this careful examination was not binding for the president anyway. On paper, basically anybody who could be appointed as a judge was eligible for the position (including all legal professions). Nonetheless, it was a long-standing tradition, even observed during the communist regime, that presidents of the Supreme Court are to be elected from among the sitting judges. The rationale was clear: the new leader must be renowned among his/her equals. The long observance and clear rationale would add up to a convention in the Jenningsian understanding. Although this rule preferred incumbents, insider interests, and the upkeep of the status quo, it was observed until 2008 when thenPresident Sólyom nominated András Baka for president of the Supreme Court of Hungary. He had been a judge of the ECtHR for 16 years, but he had no meaningful experience within the Hungarian judiciary, which was heavily criticised by the then-ruling Hungarian Socialist Party (Magyari, 2008). Even if the seriousness of the arguments of why an international judicial career would not qualify for a senior national judicial status could be questioned, the nominee was declined twice and elected only on the third attempt, and this was only under the pretext that he, in the meantime, had gathered the relevant experience within the domestic judiciary as well. The reasons for not electing András Baka twice and the explanation as to why he could have been elected a year and a half later show that there might have existed a convention for the expected qualifications and experience of the president of the Supreme Court, and the actors respected it (even if there were ambiguities regarding the interpretation of the conventional rule). In 2011, as the complete constitutional system was reconstructed (mainly according to the needs of the then-ruling right-wing FIDESZ party), the requirement of judicial experience for the president of the

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Supreme Court (since 2012 called as Kúria) was reestablished and specified in an Act of Parliament as 5 years spent on national benches. This requirement seemed to reinstate and formalise the earlier unwritten rule, which was probably breached by the president as he nominated András Baka for the first time. After the dismissal of the president of the Supreme Court in 2011 due to constitutional amendments (Kosaˇr & Šipulová, 2018; Vincze, 2015), a new president with the necessary judicial experience was elected for the newly created Kúria (Péter Darák). Nonetheless, as his 9-year term of office neared its end, the law on judiciary was amended again, and the requirement of some experience as a sitting judge was relaxed if substituted by other professional experience (gathered in international judicial organisations or at the Constitutional Court); this obviously showed an abandonment of the convention by formal rules. Taking into account that the nominations to these positions are heavily influenced by the government, the change showed the need for pre-vetted and tested candidates, little respect for judicial independence, and the instrumental use of the law. The election of a new president to the Kúria (András Zs. Varga), one who was earlier a prosecutor and a constitutional justice but never served on the bench in the ordinary judiciary before, took place according to the new rules. The National Judicial Council of Hungary (Országos Bírói Tanács) criticised the nominee—contrary to all former presidents—for lacking judicial experience, highlighting the fact that judges still consider this conventional rule to be binding, even if the statutory provision contradicts it. The president nonetheless obeyed the black letter of the law and not the convention, and so did a two-thirds majority of parliament. Their behaviour has several readings: first, they showed no respect for conventional rules nor for a rather instrumental one. If the convention fitted into the political aims (like the removal of former President Baka), it was evoked; if not, a legal provision was enacted to legitimise deviation from the convention. Second, there is obviously an unspoken primacy of written rules over unwritten ones, and the legislation is allowed to amend or abandon them as it pleases. What is more, non-compliance with them has no effect whatsoever on nominations in a strictly legal sense. Third, the political consequences are enorm albeit often not so quick. The chief justice, who was not supported by the National Judicial Council, has an ongoing conflict with the body regarding the fact that he is an ex officio member of and on several issues, but he has remained a minority, like the Ethical Code of the Judiciary. The chief justice did not take part in the

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discussions, and after it was enacted, he requested its annulment from the Constitutional Court (Mabie, 2022). The new chief justice is perceived as a politically appointed, which again shows that the earlier convention had a clear rationale: namely to gain support from or to be acknowledged by the judiciary, and that the breaking of formally non-binding rules may have long-lasting consequences of lacking support and legitimacy. Appointment of the Rank and File Judges According to Art. 9 para (3) BLH, judges are to be appointed by the president, which seems to be a very broad power not even requiring a countersignature. Only Art. 26 BLH para (2) sets out some further criteria and stipulates that the appointment should happen due to requirements laid down by cardinal law. This practically means that the National Judicial Office opens a call for a judicial position and proposes the most suitable candidate to the president, who can only check as to whether the legal requirements are met; otherwise, he has no discretionary powers, which has limited the space for constitutional conventions emerging to zero. Mercy In line with the former constitutional regime, the Fundamental Law stipulates that the president has the right to grant mercy (Art. 9, para. 4(g) BLH), which also requires a countersignature (Art. 9, para. 5 BLH). Although this provision—again only at first glance—seems to grant wide discretionary powers, these are, however, drastically narrowed by the rules of criminal procedure and sentencing; this not only reduces the scope of mercy, but it also excludes taking action on his/her own motion (suo moto), requiring a recommendation from the minister of justice or the Prosecutor General. The president is not obliged to give reasons for granting or denying a pardon and, in this sense, has far more significant powers than in the case of awarding decorations, where his/her hands are more or less tied. Nonetheless, she still cannot act without a proposal from the ministry of justice or the General Prosecutor, which again is not mentioned in the Basic Law, and the need for a countersignature could easily counterbalance any eventual excesses. The interpretation of presidential powers is very narrow, and one might also suggest that it is unconstitutionally narrow because neither the Basic Law nor the former constitution mentions any proposals from the government or the Prosecutor General, nor does it mention that the details

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might be set out by legislation. Nonetheless, this was never challenged, and the presidents accepted the encroachment into the power of mercy. 4.3.4

Classification of Constitutional Conventions

In the previous analysis, 9 different conventions of diverging importance were identified: (1) respect of the president for the election winner and parliamentary majority, (2) institution of the formateur, (3) dissolution of the cabinet, (4) awarding decorations, (5) not initiating bills or referenda, (6) freedom of choice of the form of veto, (7) duty to consult before nomination, (8) nomination of the president of the Supreme Court from among sitting judges, and (9) mercy. It seems to be convenient to theoretically analyse and classify them based upon the attributes spotted in Chapter 2. First, regarding their origin, it is mainly by precedent, a political event which became habitual practice. This was partially supported by principle. The respect for election winners and the formateur practice were established quite spontaneously after the first free elections of 1990, probably under the influence of Western democratic traditions, and has been respected since then. Legalistic arguments that the constitution gave a discretionary power to the president were not taken seriously, and the political actors were always convinced that the strongest party or coalition and its leader should be commissioned with forming a cabinet. The rapid establishment of the convention was surely supported by the electoral system producing clear winners and a political culture requesting stability and predictability. The convention was never really questioned, and it is hence one of those fundamental conventions determining political reality. The not too active role of the president also determined the dissolution of the cabinet, which happened in 3 different constellations (death, resignation, and change of the person of the prime minister), but in all cases the political actors awaited the president to remain passive and not to meddle with the business of the political parties. Attempts to behave otherwise were not accepted, or they were even sanctioned by completely excluding the president from solving the crisis in 2009. In all these cases, the precedent was interwoven with a role expectation. The limitations of the presidential role in awarding decorations are rooted in a mix of principle and precedents; the principle goes back to a conflict in 2007 as the then-president refused to act according to the role expectations and earlier precedents. The ruling of the Constitutional

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Court mainly reinforced the limited and passive role of the president, which was accepted modus operandi earlier. This role was accepted more or less by all presidents irrespective of their political allegiance; the eventual disagreements were only indicated by symbolic acts (like not shaking hands) but nothing more. Not initiating a bill—although it is expressly stated in the constitution—is a vivid example of a constitutional desuetude relying on the ongoing practice such that nobody expects any president to revive this power. The same applies for referenda, which have never been initiated by a president, and nobody expects this to happen in the future. The atrophy of these powers results in a situation where powers on paper contradict those in reality. Although the Constitutional Court set some limits on how the presidential veto is to be exercised, the president does not really observe them, and parliament scrutinises the question if a president turns down a bill basically because it is easier to overturn the veto than to start a discussion about it. The duty to consult with parliamentary parties before officially nominating a person also goes back to early precedent and the necessity of forging a majority behind the candidate, which was perceived as more than a pure courtesy; the president was sanctioned for not obeying that. The selection of the president of the Supreme Court from among sitting judges—whom the president officially proposes—is very old and was even observed during the communist era. Its conventional nature became apparent in that even an Act of Parliament could not change it, and the judges perceived the election of somebody from outside of the judiciary as a violation of that rule. Curbing the power of mercy to an absolute minimum, which cannot be derived from the text of the constitution, was also accepted by presidents as part of the role expectation, and it has never been questioned. Second, the relationship between constitutional conventions and the constitution is also a mixed bag. Mostly, they are interpretative and counter-constitutional ones. The text of the constitutions empowers the president and entitles him or her to much more than he/she actually does; his/her competences do not match reality, and there are plenty of things he/she could do but has never actually done, or they accepted a very restrictive interpretation of his/her powers. Very early on, the Constitutional Court built up a picture and the expectation of a passive, non-interventionist president fulfilling rather ceremonial roles; this was

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accepted by presidents, political actors, and the scholarship, and this circumstance may explain why most of the conventions are restrictively interpretative or even counter-constitutional, meaning that the actual exercise of the powers cannot be derived from the text at all. The passive attitude is the main driving force or behavioural pattern behind most of the established conventional rules. Third, regarding the effect on the real powers of the president, the main constitutional conventions limit the exercise of his/her powers, restrict his/her behaviour, and make it predictable. It is not expected to be innovative or thematise political life, and the only empowering convention—which enables him or her to choose the form of veto—is not a very significant one because it is used to pinpoint minor legal problems that are not notable enough to be successful before the Constitutional Court. Fourth, and also in line with the expected passive role of the president, most of the conventions in reality impose duties. He/she needs to be predictable, not to be active, and not to meddle with real politics while fulfilling the few expected ceremonial functions. The 2 that can be regarded as power-conferring conventions are of less importance: the choice of the formateur is not important because parliament always has the power to correct the decision of the president through a constructive vote of non-confidence (Art. 21 BLH); therefore, the power is rather illusory and sometimes narrows the pick to one that parliamentary parties would support. The other seemingly power-conferring convention, the choice between the forms of veto, is rather a question of convenience and less a source of real power because parliament can easily overturn any veto. Fifth, as for the type of constitutional conventions, it is necessary to highlight that the constitutional thinking is rather legalistic and can very hardly work with conventions or customary rules. In this sense, the amendment of the prerequisites of the election of the president of the Supreme Court is more than telling: the legislative revisioning and enabling the appointment of ‘outsiders’ (non-sitting judges) have assumed that the legislative power is not bound by any other customary or conventional rule. Therefore, the political actors are obviously convinced that they are allowed to change, amend, and tailor-make the rules if they command the necessary majority. That this can face resistance (as happened in the case of the newly appointed president of the Supreme Court) also tells us that some customary rules have more legitimacy than formalised ones. Nonetheless, only those 2 conventional rules qualified

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as fundamental, which must be observed or else the consequences would be too far-reaching and would ‘produce significant changes in the operation of the constitution’ (Heard, 1989, p. 72). These 2 are respect for the results of elections and not initiating legislation or referenda because they would fundamentally reconceptualise the role of the president in the constitutional architecture. The other rules are far fuzzier. This applies not only to their ambit and meaning but also to their significance. They are mostly observed, and the actors accept them as they are, but some of them have been challenged (dissolution of cabinet, decoration, choosing the formateur, duty to consult); along with this, some were partially constructed contrary to the text of the constitution so that they might and could be amended (mercy or awarding decorations) without drastically rewriting the boundaries between the government and the president. Therefore, the conventions regarding the formateur, the dissolution of the cabinet, or the conventional rules for the nomination of the president of the Supreme Court are classified as meso-conventions because they contribute to the protection of some widely accepted constitutional principles, like the primacy of the parliament or the reputation of the president of the Supreme Court among judges. Their violation especially shows their importance. The choice of vetoing bills qualifies as a semi-conventional rule, especially because they rather show a desired course of action, but there is no real interest to patrol them; hence, the president is rather flexible on how to make use of that power (Table 4.5). 4.3.5

Summary

Despite the purely legalistic approach of the Constitutional Court and the pertinent scholarship, a good deal of conventions has been established in Hungary as well. This mostly happened in those situations and areas where the constitutional adjudication was not available; therefore, the actors needed to set up a modus operandi, which by repetition became the conventional rule, while also fitting into our definition. The duty to consult and the appointment of the president of the Supreme Court from among sitting judges are typically unwritten rules, which, as it was shown, originate in constitutional practice. They clearly supplement the written constitution, creating further procedural or substantial criteria, and, in doing so, filled some lacunae of the text. Their legal unenforceability is quite plausibly shown through the election of the new president of the

Counter-constitutional

Principle

Limiting

Enlarging Limiting Limiting

Limiting Limiting Limiting Limiting

Limiting

Effect on real power of the president

Duty-imposing

Power-conferring Duty-imposing Duty-imposing

Power-conferring Duty-imposing Duty-imposing Duty-imposing

Duty-imposing

Discretion

Meso-convention

Fundamental convention Meso-convention Meso-convention Meso-convention Fundamental convention Semi-convention Meso-convention Meso-convention

Type

Note * Strictly speaking, not using the power does not necessarily imply counter-constitutional conduct. Instead, one may talk about constitutional desuetude Source Own analysis

Counter-constitutional Interpretative Interpretative

Precedent Precedent Precedent

Creative Interpretative Counter-constitutional Counter-constitutional*

Precedent Precedent Principle Precedent

Choosing the form of veto Duty to consult before nomination Nomination of the President of the Supreme Court Mercy

Interpretative

Precedent

Authorisation: respecting election winner Formateur Dissolution of the Cabinet Awarding decorations Not initiating bills or referenda

Relation to the constitutional text

Origin

Presidential constitutional conventions in Hungary

Constitutional conventions

Table 4.5

232 M. BRUNCLÍK ET AL.

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Supreme Court. Nonetheless, the amendment of the conventional rule led to public outcry, criticism not only within national borders but also across Europe, and a ‘pariah’ status of the new president: he has managerial difficulties, ongoing conflicts within the judiciary, and poor legitimacy causing him constant headaches; all of this demonstrates the factual limits of amending conventions against the will of the interested actors. There is also a clear demarcation between the constitutional system before and after the illiberal turn. Beforehand, the conventional rules had carried much more weight: the more pluralistic the political system was, the less it was dominated by one party, leading to the necessary coordination among parties that fostered the observance of conventional rules. They provided some needed guidance on how to behave. The landslide victory in the 2010 elections resulted in a two-thirds majority of the ruling party, enabling it to make and unmake every piece of legislation without the support of the opposition. Because coordination with the opposition is not necessary anymore, the need for observing conventional rules has also faded away. An instrumentalist and voluntarist approach to law prevails, which can also be very picturesquely demonstrated through the election of the president to the Supreme Court, which was redesigned several times according to the current political needs and without observing traditions or conventions.

4.4

Presidential Constitutional Conventions in Poland

Compared to other Central European countries, Poland is specific in that it changed its democratic regime in the 1990s. In the first half of the 1990s, Poland was close to a semi-presidential regime (Antoszewski, 2012; Bankowicz, 2013; Brunclík & Kubát, 2019; Ciapała, 1999; Graczyk, 1997; Jasiewicz, 1997; Kallas, 2003). The constitution of 1997 turned the country toward parliamentarism, or, as often mentioned, a parliamentary-cabinet system (Antoszewski, 2012; Bankowicz, 2010; Brunclík & Kubát, 2019; Raciborski, 2003; Sulowski & Słomka, 2022; Wiatr, 2006). This fact is especially important from the point of view of assessing presidential constitutional conventions because they closely

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relate to the powers of the president.115 There are approaches in comparative political science that downplay presidential powers conceptualising semi-presidentialism (Elgie, 1999, 2005, 2007), but from our point of view on this issue, presidential powers are a key point (Brunclík & Kubát, 2019; further see Duverger, 1980; Sartori, 1994). For this reason, the period from 1989 to 1997 and the period from 1997 to the present must be separated. Given that the first period is very short and, at the same time, politically very diverse to the point of being dramatic, it makes no sense to include it in the analysis of presidential constitutional conventions. After all, the only constitutional convention of that time that is mentioned in Polish literature, even as it might be formed in the future (Sokolewicz, 1996), ultimately did not form and still does not exist.116 The issue of presidential conventions has therefore been primarily analysed since 1997 with occasional references to the period before 1997. 4.4.1

Relationship with Government

Poland is an example of rationalised parliamentarism (Brunclík & Kubát, 2019). The position of the government in the political system of the country, and especially the prime minister in the government itself as well as the entire political system, is very strong. Although the Polish president is part of the executive, he does not have real decision-making powers. Nevertheless, the question arises as to whether the president can somehow influence the composition and policies of the government and whether such a fact would not fulfil the essence of a constitutional convention. This issue can be analysed through 4 questions. First, what is the real role of the president in the process of appointing (and dismissing) the prime minister and the government. Second, what is the real role of the 115 Hence, the time for constitutional conventions to emerge is somewhat shorter than the time in other regional countries. 116 The point was that the government could be accountable to both parliament and the president (Sokolewicz, 1996). However, Polish constitutional and political practice has not known anything like this since at least 1997. Such dual political responsibility of the government was discussed in connection with the style of the presidency of Lech Wał˛esa (1990–1995), who openly tried to influence the composition and activities of the government. However, the next president, Alexander Kwa´sniewski (1995–2005), officially abandoned these attempts, even while the ‘semi-presidential’ Small Constitution of 1992 was still in force (Dudek, 2016).

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president in the process of appointing (and dismissing) individual ministers. Third, whether there are possibilities for the president to interfere in the activities of the government, for example, by participating in its meetings. Fourth, whether the president can take over some powers that are intended for the government or about which it is not clear to whom they belong. Appointment of the Prime Minister and the Government The Polish constitution does not give the president a relevant field for manoeuvring effective interventions in the process of forming a new government. The entire procedure is described very precisely in the constitution. There is no possibility of ‘presidential’ governments in the country, which would depend on the will of the president and not on the will of parliament. At least since the approval of the current 1997 constitution, the president must respect the will of parliament. Attempts to appoint one’s ‘own’ government happened sporadically in the first half of the 1990s. The first attempt was made by President Wojciech Jaruzelski, who wanted to appoint his close collaborator Czesław Kiszczak as prime minister in the summer of 1989. In the end, he failed because Kiszczak was rejected by parliament (Dudek, 2004). President Wał˛esa attempted ‘presidential’ governments in 1990–1992, but he succeeded only once. The government of Prime Minister Jan K. Bielecki (January–December 1991) was understood as the president’s government (Mojak, 1995). However, the subsequent governments of Jan Olszewski (1991–1992) and Hanna Suchocka (1992–1993) did not succeed. Since then, none of the presidents have attempted to impose their own ‘presidential’ government. A constitutional convention that would allow such a fact was not formed in Poland. When appointing a prime minister, the president respects the will of parliament, which must pass a vote of confidence for the new government. Only once has it happened that the appointed prime minister did not gain the confidence of parliament, yet he won it on his second attempt about a month later (Marek Belka in 2004). Although the constitution distinguishes between the designation (desygnuje) of the prime minister and the appointment (powołuje) of the prime minister, this does not cause any problems in practice. The task of the designated prime minister, i.e., the

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de facto formateur, is only to form a government and nothing more.117 A designated prime minister (formateur) always subsequently becomes an appointed prime minister, i.e., a full-fledged prime minister. It all happens very quickly. From 1989 to the present, the longest period from designation to appointment was 15 days. Out of a total of 20 prime ministers, 7 were designated and appointed on the same day. After 1997, that practice was abandoned with one exception, and the periods have become slightly longer but still remain very short (see Table 4.6). Moreover, the president always appoints the government as it is proposed to him. So far, it has not happened that he officially rejected a proposed government or a member of that government and forced the prime minister to propose someone else, as sometimes happens, for example, in the Czech Republic.118 Although the constitution does not explicitly and unequivocally command the president to appoint a proposed government, the text of the constitution suggests this.119 At the same time, the constitutional and political practice is completely unambiguous, not allowing for any doubts on whether the president can or cannot appoint the proposed government: he/she must appoint the proposed government. This applies not only to the formation of the government, but also—with one exception120 —to changes in its personnel composition during its term of office. Everything is in the hands of the prime minister. As a result, we see 4 established practices that could be described as some type of constitutional convention: (1) the president respects the

117 Unlike in the Czech Republic or Slovakia, the authorisation of formateur in Poland

cannot be treated as a constitutional convention. In Poland, formateur and its task is described in the constitutional text. 118 However, behind the scenes, presidents used to put pressure on prime ministers. This mainly concerned President Kwa´sniewski and Prime Minister Leszek Miller as well as President Kaczynski ´ and Prime Minister Tusk. However, presidents usually gave way to prime ministers (Dudek, 2016). 119 The original text of the article of the constitution states the following: ‘Prezydent Rzeczypospolitej desygnuje Prezesa Rady Ministrów, który proponuje skład Rady Ministrów. Prezydent Rzeczypospolitej powołuje Prezesa Rady Ministrów wraz z pozostałymi członkami Rady Ministrów (…)’ (Art. 154 CRP). 120 President Wał˛esa refused to appoint Dariusz Rosati as minister of finance on 29 March 1993, and Rosati did not actually become a minister (Dudek, 2016).

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Table 4.6 Prime ministers and parties in Poland Formateur/ Prime minister Jerzy Buzek (1997–2001) Leszek Miller (2001–2004) Marek Belka I (2004) Marek Belka II (2004–2005) Kazimierz Marcinkiewicz (2005–2006) Jarosław Kaczynski ´ (2006–2007) Donald Tusk I (2007–2011) Donald Tusk II (2011–2014) Ewa Kopacz (2014–2015) Beata Szydło (2015–2017) Mateusz Morawiecki I (2017–2019) Mateusz Morawiecki II (2019–)

From formateur to PM

Party

Strongest parliamentary party

Party leadership

Solidarity Electoral Action Democratic Left Alliance Democratic Left Alliance Democratic Left Alliance Law and Justice

Yes

No

Yes

Yes

Yes

No

Yes

No

Yes

No

10/7–14/7/2006

Law and Justice

Yes

Yes

9/11–16/11/2007

Civic Platform Civic Platform Civic Platform Law and Justice Law and Justice

Yes

Yes

Yes

Yes

Yes

Yes

Yes

No

Yes

No

Law and Justice

Yes

No

17/10–31/10/1997

4/10–19/10/2001 2/5–2/5/2004 11/6–11/6/2004 19/10–31/10/2005

8/11–18/11/2011 15/9–22/9/2014 13/11–16/11/2015 8/2–11/2/2017

14/11–15/11/2019

Source Own compilation based on various resources

parliamentary majority,121 (2) a designated prime minister (formateur) is, without exception, appointed as the proper prime minister, (3) the president does so without delay, and (4) the president accepts the proposed members of the government.

121 Which, however, does not exclude the possibility of a minority government; such was the one-party PiS government of Kazimierz Marcinkiewicz in 2005–2006.

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When it comes to the issue of the appointment of the formateur (and subsequently the prime minister), one can also look at a question that the constitution does not address in any way: his/her political affiliation. Between the adoption of the constitution in 1997 and 2022, 12 governments have been appointed in Poland. The representative of the strongest parliamentary party was always appointed as formateur and prime minister, but in only 5 cases was it the leader of such a party, while in 7 cases it was a representative of such a party. The only established practice in this regard is the fact that the president always appoints representatives of the strongest parliamentary party. This is something we might think of as a constitutional convention. After all, even in Polish literature, one can find a cautious opinion that this fact could be understood as ‘at most as some kind of a political custom (or a constitutional convention)’ (Tuleja, 2019, p. 446), as already stated in Chapter 2. Dismissing the Prime Minister and the Government The Polish president cannot dismiss the prime minister or the government. He only accepts the prime minister’s resignation. In the past, there have been attempts by the president to remove the prime minister, but this was before the approval of the Small Constitution in 1992. In June 1992, Wał˛esa proposed the dismissal of Prime Minister Jan Olszewski, and the Sejm agreed to the proposal, which symbolically strengthened the president’s position vis-à-vis the government (Glajcar, 2006). However, the Small Constitution took away this power from the president, and it did not appear in the 1997 constitution either. The president can only reject the resignation of the prime minister, but this has only happened once, in May 2004, when President Kwa´sniewski rejected Prime Minister Belka’s resignation proposal.122 There is no room for the creation of a constitutional convention here either. Appointment and Dismissal of Ministers The composition of the government and personal changes in the government are fully in the hands of the prime minister. The only exception is 122 However, Belka ultimately did not gain the confidence of the Sejm, and the president therefore had to accept his resignation. Belka was re-appointed prime minister in June 2004 and subsequently won the confidence of the Sejm for the second time (Dudek, 2016).

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a situation where the Sejm would express a lack of confidence in an individual minister, which is possible according to the constitution. However, this does not happen in practice. In all cases, nonetheless, the president’s role is formal, and there is no room for any political action. In the past, the Small Constitution of 1992 knew so-called presidential ministers (Falandysz, 1997, p. 24). They were the ministers of foreign affairs, interior, and defence on which the prime minister had to agree with the president, or the president had to at least express his approval of the nominations. The 1997 constitution no longer foresees anything of the sort. In this context, it is significant that, although according to the constitution there are no longer any ‘presidential ministers’, they could continue to become a practice, i.e., a constitutional convention. Yet, nothing like that happened. The period of validity of the Small Constitution was too short, and, in addition, President Kwa´sniewski did not use many of his powers for political reasons (among other things, because it was the period of the SLD governments, of which Kwa´sniewski was originally the founder and leader) in the years 1995–1997, that is, until the approval of the new constitution. Thus, a constitutional convention that would have allowed for ‘presidential ministers’ did not emerge. Participation of the President in Government Meetings Unlike, for example, the Czech president, the Polish president never participates in government meetings. There is the institution of the Cabinet Council described in Chapter 3, i.e., the meetings of the government under the chairmanship of the president, but the constitution explicitly states that the Cabinet Council does not take over the competences of the government. Its resolutions are not legally binding, so it is just a formality. Of course, it can be the president’s political tool to influence the government, but it does not happen this way in practice. Cabinet councils rarely meet. President Kwa´sniewski convened it 10 times during his 10-year mandate, Lech Kaczynski ´ 4 times in 5 years, Bronisław Komorowski also 4 times in the same period, and Andrzej Duda only once since 2017 (in 2020). Theoretically, a constitutional convention could have arisen here, given the fact that the president regularly convenes the Cabinet Council and through it manages, influences, or controls the government. However, nothing of the sort has happened, and no clear, regular, and binding pattern of behaviour can be identified in this area.

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Unclear or Shared Powers Probably, the best example of the president’s unclear or shared powers with someone else is foreign policy. Although the constitution assigns the conduction of foreign policy to the government (Art. 146, para. 1 CRP), it also gives certain competences in this matter to the president. Article 133, para. 3 of the constitution states that ‘the President of the Republic shall cooperate with the Prime Minister and the appropriate minister in respect of foreign policy’. There is therefore a need for agreement between the president and the government on how the state’s foreign policy will be coordinated. This opens up some space for a constitutional convention that would solve the problem of foreign policy coordination. Nevertheless, nothing like that happened here either. In 2008, a dispute broke out between President Lech Kaczynski ´ and Prime Minister Donald Tusk regarding the representation of the state at EU summits, specifically at the European Council meeting in October 2008. Regardless of the grotesque nature of the dispute (who will fly which plane; Dudek, 2016, p. 604), Prime Minister Tusk conceded the dispute to the Constitutional Tribunal, which decided in his favour (Trybunał Konstytucyjny, 2009). The president can participate in such summits, but only after the approval of the government. The prime minister should be the main representative of the state at such meetings. Therefore, the president must succumb to the prime minister, and that is how it has remained. The president failed to get his way, which could eventually lead to a constitutional convention that would, despite the constitution, increase the president’s role in the state’s foreign policy. The competence dispute was resolved by a onetime jurisprudence of the Constitutional Tribunal and not by a potential constitutional convention. 4.4.2

Relationship with Parliament

Probably, the most important power of the president in relation to the parliament is his right of legislative initiative, legislative veto, and the right to refer the law passed by parliament for consideration to the constitutional tribunal, asking whether it is in accordance with the constitution or not. Polish presidents are relatively active in this matter, or it is primarily a legislative initiative, but the purpose does not appear to be to empower the president. The number of initiated draft laws is either stagnating or slightly increasing, but no constitutional convention can be derived

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from this. This is not about anything that deviates from the constitution. According to the constitution, the president has the right to propose laws, and he does so. Some presidents are more active (mostly President Duda), others less so, depending on the political situation. The number of proposed laws does not correspond in any way to the powerful position of the president in the country. Jaruzelski may be an exception, but he was an interim president at the time of a democratic transition. The same applies to the constitutional power of the president to veto bills passed by parliament and refer them to the Constitutional Tribunal to review whether they are in accordance with the constitution or not (Table 4.7). Another politically significant competence of the president in relation to parliament is the right to deliver a message (or˛edzie). Practice shows that Polish presidents do not use this power to strengthen their position. Their messages are moderate and non-offensive. The exception was President Wał˛esa (1990–1995), who in his messages addressed the nation rather than parliament and tried to present himself as a ruling president. Let us remember, however, that this was a period of a semi-presidential regime. None of the other presidents followed Wał˛esa, and thus, no constitutional convention strengthening the position of the president outside the constitutional framework was created. A highly effective weapon in the hands of the president could be the right to proclaim a nationwide referendum, but that does not work either. Table 4.7 Polish presidents in the legislative process President

Wojciech Jaruzelski (1989–1990) Lech Wał˛esa (1990–1995) Aleksander Kwa´sniewski (1995–2005) Lech Kaczynski ´ (2005–2010) Bronisław Komorowski (2010–2015) Andrzej Duda (2015–2022)

Legislative initiative

Legislative veto

Bill submissions to the Constitutional Tribunal

0

0

2

28 48

17 35

2 27

46 31

18 4

20 6

50

12

11

Note Data is updated until August 2022—Duda’s term of office is to expire in 2025 Source Brunclík and Kubát (2019, p. 77), Wawrzyniak (2016, p. 59), and Prezydent.pl (2022a)

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5 nationwide referenda have been held in Poland since 1989, 3 of which were ‘presidential’, i.e., called by the president. The first from 1996 was about privatisation, the second from 1997 was about the constitution, and the third from 2015 was about a mixture of political issues (3 questions: electoral system, parties and their finance, interpretation of tax law). The 1997 constitutional referendum can be omitted because it was mandatory, and the president’s role in announcing it was purely formal. We can consider the remaining 2 referenda as part of the president’s political struggle related to the presidential and at the same time parliamentary elections, with which the referenda more or less overlapped (Dudek, 2016; Sieklucki, 2016). However, each president was unsuccessful. The referenda failed to influence public opinion or the electoral behaviour of the population. Both presidents lost in the presidential elections, and the parties supported by them also lost in the parliamentary elections. The 2015 referendum turned out to be a disaster, with a voter turnout of just 7.8%. Announcing referenda, or even threats to announce referenda, have not become constitutional conventions through which presidents would strengthen their constitutional position. 4.4.3

Relationship with Judiciary

The president of Poland has several important appointment powers in the judiciary. According to the constitution, he/she appoints judges and some judicial officials (the first president of the Supreme Court, the president and vice president of the Constitutional Tribunal, the president of the Supreme Administrative Court, the president of the Supreme Court, and the vice presidents of the Supreme Administrative Court). These are powers directly given by the constitution that are exercised by Polish presidents by default. The president does not have many options here because he is limited by other circumstances when appointing the representatives of the judiciary. There is no room for the president’s arbitrariness. In the years 2015–2017, there was a judicial crisis in Poland that continues to this day. Parliament adopted several laws that were supposed to reform the position of the Constitutional Tribunal, in particular, and the Supreme Court. According to critics of the changes, this reform limited the independence of the judiciary. President Duda played a certain political role here, especially in the matter of the possible veto of adopted laws. The president signed the first controversial laws concerning the Constitutional Tribunal. Nonetheless, in the face of mass social protests

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in 2017, he vetoed 2 of the 3 laws regulating the position of the Supreme Court and the National Judicial Council (Prezydent.pl, 2022b). In 2022, the Constitutional Tribunal resolved a competence dispute between the president and the Supreme Court (it initiated the dispute) regarding, in simple terms, whether the Supreme Court (or another court) should review the president’s decision to appoint a judge. The Constitutional Tribunal concluded that the power to appoint judges is the president’s exclusive power and not subject to judicial review (Trybunał Konstytucyjny, 2020). All these issues are unrelated to the issue of presidential constitutional conventions. The reason for this is the fact that the entire judicial reform process was initiated and implemented by the ruling PiS party and not by the president. The president did not play an important role in any of the reforms. The second reason is the fact that the reform of the judiciary as such did not aim to change (strengthen) the position of the president vis-à-vis the judiciary. The third reason is the fact that this is a recent and one-off matter that does not meet the defining characteristics of a constitutional convention. 4.4.4

Other Areas

The president has several other appointments and ceremonial powers. However, it is difficult to find constitutional conventions here. If we look at the exercise of all these powers, we will not find any deviations from the (constitutional) norm in the sense of comparing the activities of individual presidents. Sometimes it happens that the president rejects some proposals or at least delays some of his decisions. For example, in January 2022, President Duda refused to appoint 11 judges who were proposed by the National Council of the Judiciary in 2017 and 2018 without giving reasons for such a move (Gazeta Prawna, 2022). The media also noticed that President Duda grants professor titles noticeably less than his predecessors, and that some applicants for a professor title wait too long (many years) for appointment, although the president has never explicitly and officially stated that he is not appointing the person in question as a professor, as Czech president Zeman did in 2019 (Wydarzenia, 2020). In 2017, President Duda refused to appoint 10 generals proposed by defence minister Anotni Macierewicz (Wiadomo´sci, 2017).

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The reasons are apparently political. The unnamed judges were proposed by the National Council of the Judiciary before its controversial reform was implemented. Some professor candidates are known for their critical attitude toward the ruling PiS party. The refusal to appoint generals was the result of a political conflict between the president and the defence minister. Similar things have also happened in the past, for example, to President Lech Kaczynski. ´ However, can the non-appointment to the post of judge (which is the president’s constitutional prerogative), the reluctance to appoint professors, or not appointing generals give rise to a constitutional convention? If we look at the concept of constitutional convention and their typology presented in Chapter 2, then no. 4.4.5

Classification of Constitutional Conventions

In Poland, since the approval of the constitution in 1997, we can identify 5 presidential constitutional conventions. First, the president always respects the will of parliament or a parliamentary majority when appointing prime minister. All governments appointed by the president subsequently won confidence in the Sejm. The only exception was Prime Minister Belka in 2004, who gained confidence only on his second attempt. Second, the prime minister designated by the president (formateur) is always subsequently appointed as the proper prime minister. Third, the president accepts the composition of the government proposed by the formateur (as well as the prime minister’s proposals for personnel changes during the term of office). Fourth, the designated prime minister (formateur) is appointed as the proper prime minister very quickly, without delay. Fifth, the prime minister is always the representative (not necessarily the leader) of the strongest parliamentary party. Now let us try to analyse the identified constitutional conventions from a theoretical point of view and classify them into the typology described in Chapter 2. All the mentioned constitutional conventions arose because of precedent. They did not arise because of any agreement or decision of the Constitutional Tribunal. Although the period from the adoption of the constitution in 1997 is primarily analysed in this text, some constitutional customs were formed right after 1989. All presidential constitutional conventions are interpretative because they are based on a specific interpretation of the constitution. When

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appointing the prime minister, the president respects the will of the parliamentary majority because, according to the constitution, this is necessary to complete the process of forming the government. The fact that the designated prime minister (formateur) subsequently becomes a regular prime minister is also based on the basic logic of the government formation process. The president accepts the proposed composition of the government and personnel changes because the constitution clearly states that the prime minister is the head of the government, so the prime minister determines its policy and composition. It follows from the logic of the functioning of rationalised parliamentarism (Tanchev, 1993) to which Poland adheres. There is a short period or in some cases no delay between designing and appointing the prime minister either. Although the constitution does not specify any time limit between the designation and appointment of prime minister, the time limits are already specified in the following steps and are very short (14 days). The founders of the constitution tried to be precise and speed up the process of government formation as much as possible to avoid any governmental crises. Similarly, the fact that the designated and appointed prime minister comes from the strongest parliamentary party and, therefore, has the best chance of forming a government and obtaining the confidence of parliament corresponds to the basic constitutional logic of the government formation process. Almost all the identified presidential constitutional conventions limit presidents in their political activism. The president’s hands are tied, and there is little room for manoeuvring due to constitutional conventions. Only the convention of a short or even non-existent period between designing and appointing the prime minister is double-edged for the president’s position. On the one hand, it is neutral toward his position because the designated prime minister has no influence on the running of the country, and the president cannot therefore influence state policy through him. On the other hand, the short term is limiting for the president because he does not have time to possibly put pressure on the prime minister regarding the personnel composition of the government. All identified presidential constitutional conventions are duty-imposing because they impose requirements on the president in terms of how to proceed (Table 4.8). Regarding the typology of constitutional conventions, it can be stated that only one of them is fundamental. When appointing the prime minister, the president respects the will of the parliamentary majority.

Interpretative Interpretative Interpretative Interpretative

Precedent Precedent Precedent Precedent

Source Own analysis

Interpretative

Precedent

President respects parliamentary will Formateur is PM Timing between designation and appointment President appoints nominated ministers Formateur/PM from the largest party

Relation to the constitutional text

Origin

Presidential constitutional conventions in Poland

Constitutional conventions

Table 4.8

Limiting

Limiting

Limiting Limiting

Limiting

Effect on real power of the president

Duty-imposing

Duty-imposing

Duty-imposing Duty-imposing

Duty-imposing

Discretion

Meso-convention

Meso-convention

Fundamental convention Meso-convention Semi-convention

Type

246 M. BRUNCLÍK ET AL.

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Failure to do so would mean a violation of the basic principle of parliamentarism, where the government is accountable to parliament and must have parliament’s confidence to establish itself and get to work. If the president did not respect the parliamentary majority and appointed governments that do not have the confidence of parliament, the country’s constitutional and political system would cease to function and ultimately collapse. The 3 presidential constitutional conventions can be characterised as meso-conventions: the formateur becomes prime minister, the president accepts the formateur’s (and later the prime minister’s) government proposal, and the prime minister is the appointed representative of the strongest parliamentary party. If these conventions were not respected, it would seriously complicate the process of forming a government. Despite this, there would still be other ways to proceed, and it would not mean dramatic changes in the functioning of the country’s constitutional and political system. Only one presidential constitutional convention (short periods between designation and appointment, i.e., from formateur to prime minister) is designated as a semi-convention. This is because this convention helps smooth the formation of the government, but its occasional violation would not have a significant impact on the functioning of the government and the entire constitutional-political system. 4.4.6

Summary

In Poland, the conditions are not suitable for the abundant occurrence of presidential or other constitutional conventions. To be more specific, the constitutional and political situation does not favour the rise of constitutional conventions (see Chapters 2 and 3). Nevertheless, we can identify cases and procedures in Polish constitutional and political practice that correspond to our conceptualisation of the constitutional convention (see Chapter 2). It is noteworthy that all of them concern the relationship between the president and the prime minister (and the government). A possible explanation is as follows: Poland is the only Central European country to have drastically changed its democratic regime type from semi-presidential to parliamentary. Moreover, the new parliamentarism is considerably rationalised. Both these types of democratic regime are based on the emphasis placed on executive power. In the semi-presidential

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regime, it is the president; in rationalised parliamentarism, it is the government headed by the prime minister. In this respect, it is the organisation of relations within the executive branch that is key for both types of regimes, both on a formal (constitutional) and on a practical (political) level. It is therefore not surprising that it is here that space opens up for the creation and functioning of constitutional conventions.

4.5

Final Remarks

Let us briefly summarise the results of the above identification and analysis of presidential constitutional conventions in all the Central European countries. Interestingly enough, the weak position of constitutional conventions and their lower relevance in academic writing as well as in judgements of Constitutional Courts in Poland or Hungary does not translate into a lower number (or even lower degree of relevance) of constitutional conventions in the 2 countries. Quite on the contrary, we identified 24 presidential constitutional conventions in total in the countries under scrutiny. However, the majority of the conventions—14 overall, 9 in Hungary and 5 in Poland123 —are identified in the countries whose legal systems and scholarship are more reluctant to accept the existence and relevance of constitutional conventions. All this indicates that despite the unfavourable environment (academia and case law of the Constitutional Courts), constitutional conventions may emerge quite spontaneously. What seems to matter most is the practice formed by the actions of politicians occupying respective constitutional positions. For example, on the one hand, the Hungarian Constitutional Court, which is quite hostile toward constitutional conventions and heavily influenced by legal formalism, made an effort to plug up the constitutional text with an array of decisions in order to eliminate ambiguity and a lack of detailed rules in the constitutional provisions. On the other hand, not every single area of presidential competences could be regulated by the binding interpretation of the Constitutional Court. Instead, in several particular areas that allowed for competing interpretations and that were left untouched by the judgments of the Constitutional Court, constitutional practice quite naturally called for more direct, concrete rules that would help

123 To complete the picture, in the Czech Republic, we identified 6 conventions, whereas in Slovakia we found 4 presidential constitutional conventions.

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constitutional actors take adequate and legitimate steps to overcome the brevity and/or the ambiguity of the constitutional text. In contrast, the conditions for the rise of constitutional conventions in the Czech Republic and Slovakia are more favourable in terms of scholarly literature, jurisprudence, and constitutional actors (i.e., political office holders). On the other hand, relatively frequent disputes concerning the way presidential competences (notably as far as appointments are concerned) should be practised, unclear and inconsistent rulings of the Constitutional Courts (see Chapter 5), and politicians’ inability to set and keep regular patterns of behaviour in respective areas of presidential competences prevent constitutional conventions from emerging in several areas where they are desirable. Let us comparatively summarise the presidential constitutional conventions in the region using the typology used in Chapter 2 and applied in the present chapter. As for the area of presidential constitutional conventions, a clear majority of them (17 out of 24) were found within the relationship between the president and the government. This was notably the case in the government formation process, which may indicate (1) the area of intensive interaction between the 2 actors, occasionally competing for power, and (2) a high degree of brevity of or even ambiguity in constitutional texts in this particular area, despite frequent efforts to eliminate the 2 phenomena by constitutional amendments and/or by judgements of the Constitutional Courts in the region (see Table 4.9). In sum, 4 constitutional conventions were identified regarding the relationship of presidents toward parliament, respectively the presidents’ role in the legislative process. We found 3 constitutional conventions regarding the judiciary (2 in Hungary and one in the Czech Republic). As far as the origin of the presidential constitutional conventions is concerned, an overwhelming majority of these (21 out of 24) emerged from a precedent, i.e., a quite spontaneous action taken by an actor who faced a question of how to proceed in a particular situation but who could not take advantage of previous constitutional practice. Oftentimes, early presidents established patterns of behaviour that have gradually turned into a constitutional convention as his/her successors adhered to the original practice. Only one constitutional convention could be classified as stemming from an agreement (the Czech president does not ratify international treaties) and two come from a principle (the very passive role

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of the Hungarian president in awarding state decorations and granting mercy). As regard the relationship of presidential constitutional conventions to constitutional texts, most of them (14 out of 24) are interpretative, which tends to support the primary role of the constitutional convention as discussed in Chapter 2, i.e., supplementing the constitutional text. Besides this, 4 conventions were identified as creative. The formateur role is a good example of this kind of constitutional convention. Counterconstitutional conventions are not exceptional. In total, we identified 6 such conventions that contradict the constitutional texts in the Czech Republic and, more notably, in Hungary. A very important variable we sought to address was the effect of presidential constitutional conventions on the real power of the president. A clear majority of the conventions (18) tended to limit the power of the president across all Central European countries. The Hungarian example is telling as 8 constitutional conventions can be found that curtail the power of the president, whose position is de facto weaker than his/her position de iure. In 4 cases, we may speak of power-enlarging constitutional conventions. On the other hand, the power enlargement tends to be highly limited, and one cannot speak of a significant effect of the conventions on the power of the president. For example, the Czech president commissions a formateur following parliamentary election so that he can keep controlling the government formation process. Moreover, he is not obligated to select the leader of the largest party. At the same time, his power of discretion is limited by another constitutional convention—the president pays respect to the parliamentary majority. Thus, his manoeuvring space is severely constrained. Also, the Hungarian president may choose the type of a legislative veto, which increases his/her power. Still, the power enlargement is rather symbolic since the parliament may easily override any presidential veto (Table 4.9). Similarly, most of the constitutional conventions (19 out of 24) are duty-imposing, which means that the presidential scope of action is significantly constrained, and the president is obliged to take a predictable step. Only in 5 cases does presidential discretion get wider and presidents may take advantage of a power-conferring constitutional convention. However, greater discretion does not have a significant effect on the overall position of the presidents in their constitutional systems. Perhaps only the Czech constitutional conventions allowing the president to

4

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Table 4.9 Constitutional conventions in the Central European countries Area

Type

Power-conferring / duty-imposing character

Country Total Government Parliament Judiciary Fundamental Meso Semi Infra

Dutyimposing

Power-conferring

HUN

9

4

3

2

2

6

1

0

7

2

POL CZE SVK Total

5 7 3 24

5 5 3 17

0 1 0 4

0 1 0 3

1 1 1 5

3 3 1 13

1 2 1 5

0 1 0 1

5 4 3 19

0 3 0 5

Effect on presidential power Country

Total

Relation to the constitutional text

Origin

Enlarging Neutral Limiting Interpretative Creative Contra Agreement

Precedent

Principle

HUN POL CZE SVK

9 5 7 3

1 0 2 1

0 0 2 0

8 5 3 2

4 5 3 2

1 0 2 1

4 0 2 0

0 0 1 0

7 5 6 3

2 0 0 0

Total

24

4

2

18

14

4

6

1

21

2

appoint the vice-governor of the Czech central bank without the government’s countersignature may be regarded as something that makes the president stronger. As for the types of the constitutional conventions, we identified 5 fundamental conventions, out of which 4 refer to the rule whereby the presidents of the Central European countries are obligated to respect the will of parliament in the government formation process. The fifth fundamental convention refers to the Hungarian president, who is allowed to initiate neither bills nor referenda despite the constitution giving the president such a right. Not respecting the fundamental constitutional conventions would inevitably lead to profound changes in the working of the constitutional systems of the Central European countries. Most of the conventions can be classified as less crucial types of constitutional conventions: meso-conventions (13) or semi-conventions (5). We identified only one infra-convention: approved bills in the Czech Republic come into effect even without the president’s signature, even though formal rules of the legislative process require the presidential signature. The reason for the only infra-convention may reside in the fact that our understanding of constitutional conventions assumes that constitutional conventions are

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generally seen as binding and basically uncontested. Those rules that are often questioned cannot be easily regarded as constitutional conventions. Despite the relatively limited number of presidential constitutional conventions in the region, there are several other areas that serve as a potential pool for future constitutional conventions that might emerge from a grey zone. Notably in the Czech Republic and Slovakia, there are several areas of presidential politics (appointment powers, government formation process) that are conducive to the emergence of new constitutional conventions, although so far no clear, regularly repeated patterns of behaviour have appeared. Hence, the area of constitutional conventions is a dynamic one. Like formal rules, even constitutional conventions may rise or cease to exist, and in the future, we will probably debate a different set of constitutional conventions.

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Najwyzszym. ˙ Trybunał Konstytucyjny. https://trybunal.gov.pl/postepowaniei-orzeczenia/komunikaty-prasowe/komunikaty-po/art/11048 Tuleja, P. (Ed.). (2019). Konstytucja Rzeczypospolitej Polskiej. Komentarz. Wolters Kluwer. Valová, K. (2000). Podpísanie zákona prezidentom. Právný obzor, 104(2), 166– 175. Vanˇca, M. (2018). Imperátor a gubernátor. Pˇrekryv pusobení ˚ dvou pˇredsedu˚ vlády z hlediska ústavního práva, komparativní politologie a teoretické státovˇedy. Univerzita Karlova. Bachelor Thesis (Bc). Supervisor PhDr. Miloš Brunclík, Ph.D. Vermeule, A. (2012). The Atrophy of Constitutional Powers. Oxford Journal of Legal Studies, 32(3), 421–444. Vincze, A. (2004). “Kabinet-kérdés” – A Kormány lemondási kötelezettsége a bizalom megvonása esetén. Magyar Jog, 51, 339–346. Vincze, A. (2015). Dismissal of the President of the Hungarian Supreme Court: ECtHR Judgment ‘Baka v. Hungary’. European Public Law, 21(3), 445–456. ˇ Vláda CR. (2021, November 30). Konˇcící premiér Babiš i nastupující premiér ˇ Fiala spoleˇcnˇe podpoˇrili projekt iniciativy Lékaˇri pomáhají Cesku na urychlení ˇ oˇckování. Vláda Ceské republiky. https://www.vlada.cz/scripts/detail.php?id= 192645&tmplid=50 Wawrzyniak, J. (2016). Sejm a prezydent Rzeczypospolitej Polskiej i Rada Ministrów. Wydawnictwo Sejmowe. ˇ Weyr, F. (1937). Ceskoslovenské právo ústavní. Melantrich. Wiadomo´sci. (2017, November 11). Prezydent blokuje generałów Macierewicza. Wiadomo´sci. https://wiadomosci.onet.pl/tylko-w-onecie/andrzej-duda-blo kuje-generalow-antoniego-macierewicza/h8yw76q Wiatr, J. (2016). Europa pokomunistyczna. Przemiany panstw ´ i społeczenstw ´ po 1989 roku. Wydawnictwo Naukowe Scholar. Wightman, G. (1995). The 1994 Slovak Parliamentary Elections. Journal of Communist: Studies and Transition Politics, 11(4), 384–392. ˇ Wintr, J. (2010). Ceská parlamentní kultura. Auditorium. ˇ ek. Wintr, J. (2015). Principy cˇeského ústavního práva. Aleš Cenˇ Wintr, J. (2021, December 16). Expert: Konflikty s prezidentem neskonˇcí, dokud nezpˇresníme ústavu. Aktuálnˇe.cz. https://zpravy.aktualne.cz/domaci/expertkonflikty-s-prezidentem-neskonci-dokud-nezpresnime-us/r~8d7a8c025e59 11ecbc3f0cc47ab5f122/ Wydarzenia. (2020, February 12). Prezydent niech˛etnie mianuje nowych profesorów. Wydarzenia. https://www.rp.pl/polityka/art890141-prezydent-nieche tnie-mianuje-nowych-profesorow Zelenajová, Z. (2016). Prezidentská vláda alebo aké sú možnosti jej vytvorenia podˇla Ústavy SR. Justiˇcná Revue, 68(10), 1067–1074. Zlinszky, J. (2005). Jogallambol – elegseges. Magyar Jog, 52(2), 91–94.

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Legislation, Other Legal Documents and Case Law Czech Republic Act No. 273/1994 Coll. on administrative fees. Act No. 275/1994 Coll. on the exercise of the profession of authorized architects and on the exercise of the profession of authorized engineers and technicians active in construction. Act No. 314/2008 Coll., amending the Act on Courts and Judges. Act No. 6/2002 Coll., on Courts and Judges. Act No. 292/2004 Coll., on Merit of Edvard Beneš. Chamber of Deputies (1999). Chamber Document No. 359/0. Novela z. – ˇ Ústava Ceské republiky. Decision of the President of the Republic No. 144/1993 Coll., on the negotiation of international agreements. Judgement of the Czech Constitutional Court of 20th June 2001, Pl.ÚS 14/ 01. Judgement of the Czech Constitutional Court of 12th September 2007, Pl.ÚS 87/06. Judgement of the Czech Constitutional Court of 3rd November 2009, Pl.ÚS 29/09. Judgement of the Czech Constitutional Court of 19th June 2018, Pl.ÚS 36/ 17. Judgement of the Czech Constitutional Court of 22nd June 2021, Pl.ÚS 6/21. Resolution of the Czech Constitutional Court of 5th March 2013, Pl.ÚS 4/13. Slovakia Constitutional Act No. 460/1992 Coll., the Constitution of the Slovak Republic. Constitutional Act No. 90/2001 Coll., amending the Constitution of the Slovak Republic. Judgement of the Slovak Constitutional Court of 17th March 2015, III. ÚS 571/2014. Judgement of the Slovak Constitutional Court of 31st May 2017, PL. ÚS 7/ 2017. Judgement of the Slovak Constitutional Court of 6th December 2017, I. ÚS 575/2016. National Council (1998). Návrh skupiny poslancov Národnej rady Slovenskej republiky na vydanie ústavného zákona, ktorým sa mení a dop´lnˇ a Ústava Slovenskej republiky cˇ . 460/1992 Zb. v znení ústavného zákona cˇ . 244/ ˇ 1998 Z. z. Císlo: 1206/1998. Tlaˇc 0058. Resolution of the Slovak Constitutional Court of 2nd June 1993, I. ÚS 39/93. Resolution of the Slovak Constitutional Court of 22nd February 1994, I. ÚS 5/ 94.

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Resolution of the Slovak Constitutional Court of 23rd September 2009, PL. ÚS 14/06. Resolution of the Slovak Constitutional Court of 24th October 2012, PL. ÚS 4/2012. Resolution of the Slovak Constitutional Court of 28th October 2015, PL. ÚS 45/2015. Hungary Act. XXXI. of 1989 on the Constitution of Hungary. Act. XL of 1990 on the Amendment of the Constitution of Hungary. Act on the Constitutional Court Nr. CLI of 2011. Basic Law of Hungary of 2011. Decision of the Constitutional Court of 26th September 1991, 48/1991 (IX.26.) AB. Decision of the Constitutional Court of 30th January 1992, 8/1992 (I.30.) AB. Decision of the Constitutional Court of 10th June 1992, 36/1992 (VI.10.) AB. Decision of the Constitutional Court of 14th October 1997, 52/1997 (X. 14.) AB. Decision of the Constitutional Court of 31st March 1999, 4/1999. (III. 31.) AB. Decision of the Constitutional Court of 6th July 2000, 24/2000. (VII. 6.) AB. Decision of the Constitutional Court of 15th December 2003, 62/2003 (XII. 15) AB. Decision of the Constitutional Court of 13th December 2004, 55/2004. (XII. 13.) AB. Decision of the Constitutional Court of 3rd July 2007, 47/2007 (VII. 3.) AB.

CHAPTER 5

Constitutional Conventions and Constitutional Courts

The aim of this chapter is to analyse the way in which constitutional conventions are dealt with by (predominantly constitutional) courts. Our objectives are, first, to describe and analyse the individual cases in which presidential constitutional conventions were included into courts’ reasoning, and, second, based on this analysis of individual cases, to derive and outline more general conclusion on whether and how the studied courts approach presidential constitutional conventions and whether their approach has changed (or evolved) over time. It is crucial to highlight at the outset that this chapter understands and analyses constitutional conventions in a slightly different way compared to the other chapters. Unlike previous chapters that stuck to our own definition of a ‘constitutional convention’, this chapter has to take the understanding of constitutional conventions provided by the case law of the examined courts into account, which may differ from the provided theoretical definition. In other words, the previous chapters were focused on presidential constitutional conventions in the reality of studied political systems whereas this chapter focuses on these conventions in the normative world that is created by courts’ reasoning within the framework of boundaries that the respective constitutions set for these courts. This can lead to several significant consequences. First, the courts might identify a presidential constitutional convention that does not meet all of the requirements of our theoretical definition. Second, the © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_5

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courts might refuse to acknowledge a presidential constitutional convention that clearly resembles our definition. Taking into account that this chapter analyses the case law on constitutional conventions which are, according to our definition, judicially unenforceable, the mentioned incongruencies are more than possible. Both of these consequences are further elaborated in the analysis of individual countries below. It should also be noted that even though we are not able to rely on our definition, we can still (and in fact did) work with various classifications of constitutional conventions outlined in Chapter 2 in order to contrast the analysed courts’ understandings of constitutional conventions with a theoretical background. Nevertheless, the most important consequence that influenced the structure and the scope of this chapter as such is that 2 of the studied constitutional courts have never used presidential constitutional conventions in their case law, irrespective of whether we identified them within the political reality of the respective state or not. This was the case with constitutional courts in Hungary and Poland. Since this can be somewhat surprising, we decided to explain these findings briefly. It is evident that courts are called upon to interpret and apply the law. However, it may be less evident what ‘the law’, which shall be interpreted and applied by courts, actually is; in other words, what are the sources of law that shall be taken into account by courts when deciding individual cases. The constitutions of the 4 studied states significantly differ in this respect. The constitutions of Hungary (Art. T—from now on BLH) and Poland (Art. 87—from now on CRP) are rather stringent and explicit when it comes to sources of law since they both contain a closed enumeration of these sources. In the case of Poland, this was a deliberate change brought about by the 1997 constitution in order to ‘bring some sense of order to the system of sources of law’, unlike previous constitutions which left the issue open (cf., Granat & Granat, 2019, pp. 40–41). These enumerations work both ways. They not only tell the courts what is normatively relevant for them (i.e., that the sources of law explicitly included in the enumeration have to be taken into account), but also the order that the courts regard everything outside of this enumeration as normatively irrelevant (see, e.g., Tuleja, 2019, p. 282). Since neither the Hungarian nor the Polish constitutions included constitutional conventions in their enumerations, they prevent the courts from taking them into account when deciding individual cases.

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In contrast to the Hungarian and Polish constitutions, their Czech and Slovak counterparts did not provide explicit enumerations of sources of law, leaving significant space for courts to use some discretion when it comes to what shall (or shall not) be normatively relevant for their decision-making. This opened up a window of opportunity for these courts to widen their understanding of relevant constitutional sources. That is why the Hungarian and Polish constitutional courts do not work with presidential constitutional conventions while their Czech and Slovak counterparts do. It also explains why (in contrast to the previous chapters) this chapter provides an in-depth analysis of only 2 out of the 4 countries examined in this book. It remains to be noted that analyses of case law in the Czech Republic and Slovakia are structured chronologically in order to capture the aforementioned eventual changes of the courts’ approaches to presidential constitutional conventions over the past 3 decades of their decisionmaking. The structure is presented below in more detail.

5.1

Czech Republic

Even though the Czech Constitutional Court does not have the power to make general interpretative statements regarding the Constitution of the Czech Republic (CCR), which significantly limits its ability to feature constitutional conventions, it has already mentioned them several times. The constitutional conventions concerning the president, which are at the centre of interest in this book, are mentioned in the following types of Constitutional Court cases: (a) abstract review of statutes (Art. 87, para. 1(a) CCR), (b) competence dispute between state bodies (Art. 87, para. 1(k) CCR), and (c) individual constitutional complaints (Art. 87, para. 1(d) CCR). Another interesting point is that unlike most western countries where legal theorists and scholars identified and analysed the conventions for a significant portion of time before the courts noticed them, it was the Constitutional Court itself that brought the concept of constitutional conventions into the Czech legal environment. It followed from the semi-structured interviews conducted with Czech legal scholars and constitutional lawyers, most of whom only started to think about constitutional conventions after (and because) the Constitutional Court brought them up in the 1990s. What is more, they were very often

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influenced in their thinking by the approach to constitutional conventions taken by the court.1 To sum this point up, in the Czech Republic, it was not the legal scholars who influenced the judiciary concerning constitutional conventions; quite conversely, the scholars learnt about constitutional conventions from the judiciary (and especially the Constitutional Court), which makes the analysis of its reasoning central to understanding constitutional conventions in the Czech Republic. The development of case law featuring presidential constitutional conventions in the Czech Republic can be divided into 4 periods, each described in one of the following subchapters: (a) introduction of the conventions by the Constitutional Court and expressing the possibility of using them (i.e., ‘Opening the door’), (b) further development of the various (and also divergent) ways of using conventions in particular cases (i.e., ‘Opening the door even wider, but differently’), (c) change of course driven by the tendency to avoid using presidential constitutional conventions (i.e., ‘Not entering the open door’), and finally (d) an interesting (but hitherto unique) case by the Supreme Administrative Court of using constitutional conventions as supposed by the Constitutional Court during the first 2 periods (i.e., ‘Supreme Administrative Court entering the door instead?’). Each subchapter analyses relevant judicial decisions belonging to the respective period, describing first the general facts and legal questions of the case and then focusing on the specific role played by the constitutional conventions in the court’s reasoning and/or the argumentation of the parties to the dispute. The final paragraphs of the subchapters usually provide the classification of the observed constitutional conventions according to the categories presented in Chapter 2 of this book. 5.1.1

Opening the Door

Constitutional conventions were first mentioned by the Constitutional Court of the Czech Republic in its judgement Pl. ÚS 33/97 (generally referred to as ‘Suspensive veto of the president of the republic—counting of deadlines according to Article 50, paragraph 1 of the constitution’). 1 Investigating sources of inspiration for the Constitutional Court, it appears that the individual judges were (depending on their language and professional preferences) influenced by either the German or the Anglo-Saxon legal tradition. This is more deeply investigated within the analysis of the individual cases decided by the court.

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The merit of the judgement was the conflict between President Havel and the Chamber of Deputies over the proper way of counting the time within the Czech constitutional order. The president decided to use his power ‘to return adopted acts, with reasons given, within 15 days of the day they were submitted’ (Art. 50, para. 1 CCR) and vetoed the bill novelising Act No. 246/1992 Coll. on the protection of animals against cruelty. The concerned bill came to the president’s table on 13 June 1997, and the president delivered his veto back to the Chamber of Deputies on 30 June 1997. Even though the Chamber of Deputies has the power to overrule the presidential veto with an absolute majority of all 200 deputies (Art. 50, para. 2 CCR), it did not do so and decided to ignore the veto; the bill was promulgated instead since the deputies were convinced that the president missed the 15-day deadline prescribed by Art. 50, para. 1 CCR. The president then proposed the Constitutional Court to quash the concerned act of law for being adopted by a constitutionally deficient legislative procedure. He argued that the veto was delivered in time, and the bill could therefore not be promulgated unless the veto was overruled by an absolute majority of the deputies, which had not happened in this case. Both parties agreed on the length of the deadline (15 days) since Art. 50 para. 1 CCR is sufficiently clear on this point. The conflict, however, concerned the manner of counting the deadline or, more precisely, when exactly the deadline starts and ends. The Chamber of Deputies, on the one hand, argued that since the constitution does not prescribe any particular way of counting deadlines, Art. 50, para. 1 CCR shall be interpreted literally. In other words, 15 means 15, and the deadline for returning the concerned bill was therefore on 27 June 1997. On the other hand, the president referred to ‘the convention being established since the Constitution came into effect’ and argued (a) that according to the mentioned convention, the first day of the deadline means the day after the day when the bill was delivered to him and (b) when the deadline ends on a Saturday, Sunday or holiday, its last day shall be deemed the first forthcoming working day. If such an interpretation is correct, the deadline for returning the concerned bill was indeed on 30 June 1997. In order to solve this interpretational conflict, the Constitutional Court faced the need to analyse the concept of constitutional conventions and their place in the Czech constitutional order for the first time in its history. In its reasoning, the court indeed endorsed both constitutional principles

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and constitutional conventions, stating the following: ‘Linguistic interpretation is only a preliminary approach to the applied legal norm. It is only a starting point for clarification and understanding of its meaning and purpose (which is also used by many other procedures, such as logical and systematic interpretation, interpretation e ratione legis,2 etc.). Mechanical application, whether disregarding the rationale and meaning of the legal intentionally or by ignorance, makes the law an instrument of alienation and absurdity’. Such argumentation by the court corresponds to its more general shift from textual positivism toward a teleological interpretation of the law (cf., Kühn, 2011, p. 201; Holländer, 2003) based not only on the constitutional text but also on fundamental constitutional values and principles (and as we can also derive conventions from judgement Pl. ÚS 33/97). This shift was initiated during the very first year of the court’s existence in its judgement Pl. ÚS 19/93, where the court held the following: ‘Our new constitution is not founded on neutrality with regard to values, it is not simply a mere demarcation of institutions and processes, rather it incorporates into its text also certain governing ideas, expressing the fundamental, inviolable values of a democratic society’. There is, however, one brand new statement in the court’s suspensive veto reasoning which is of the utmost importance for the purposes of this book. The court held that the constitution ‘cannot exist outside of a minimal value and institutional consensus. It follows for the area of law that, even in a system of written law, fundamental legal principles and conventions are sources not only of law in general but also of constitutional law’. It can, therefore, be concluded that the court understood the constitutional conventions as not only instruments of legal argumentation and the interpretation of legal norms but also sources of law themselves. Consequently, the court left the door wide open for the establishment of a very strong (and possibly even formally binding) conception of constitutional conventions in the Czech constitutional system. Concerning the classification by Farrah Ahmed and her colleagues (2019) described in Chapter 2, such an approach by the court would fall under the third option, i.e., enforcement, which means that some courts seek the formal judicial enforcement of conventions.

2 The interpretation e ratione legis is based on the sense or purpose of the interpreted legal text rather than on its linguistic meaning.

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In favour of this very strong conception, it could also be mentioned that 2 elementary conditions for constitutional conventions to emerge, namely (a) ‘a general conviction about the need to observe a general rule of conduct (opinio necessitatis )’ and (b) ‘its observance over a long period of time (usus longaevus , or longa consuetudo)’, were in this case applied to fundamental legal principles as well. From the court’s point of view, the only difference between conventions and fundamental legal principles rests in the degree of their generality. It follows that in the written law system, both conventions and fundamental principles ‘have the character of a separate source of law only praeter legem (that is, unless the written law provides otherwise)’. However, to resolve the dispute between the president and the Chamber of Deputies, the court explicitly recognised and used a specific unwritten principle rather than a constitutional convention in its reasoning, explaining that ‘in a situation where there is a dispute between entities applying the Constitution regarding the interpretation of a certain provision, it must be resolved in favour of the possibility of exercising the constitutional power to which the given provision relates’. Thus, even though this judgement truly opens the door for constitutional conventions in the Czech legal environment, it actually neither recognises nor uses any specific constitutional convention in its ratio decidendi. Nevertheless, even if we do not have any specific constitutional convention by which the distinction between duty-imposing and power-conferring conventions (see Chapter 2; cf., Jaconelli, 2005, p. 152; Marshall, 2001, pp. 7–8) can be applied, it appears that the aforementioned unwritten principle recognised by the court strongly corresponds (at least as far as its purpose is concerned) to the power-conferring category. It follows that the court should have no problems with recognising the power-conferring presidential conventions in future cases since it can base its reasoning in favour of such conventions precisely on the principle found in this judgement. To finalise the analysis of the first judgement of the Czech Constitutional Court, it follows from the already mentioned arguments observed in the reasoning that the court decided in favour of the president and held that, in line with the aforementioned principle, the president returned the concerned bill within the constitutional deadline. As a result, the bill could not be promulgated unless the presidential veto was overruled in the Chamber of Deputies; thus, the act was quashed for being adopted by a constitutionally deficient legislative procedure.

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Given the aforementioned wide-open door for the establishment of judicially enforceable constitutional conventions recognised as sources of constitutional law and limited solely by the fact that they can be legitimately used only praeter constitutionem (and not contra constitutionem), one could expect that the Constitutional Court of the Czech Republic would use the conventions quite frequently in its case law in order to support its own reasoning. Nevertheless, the opposite is true. The court has explicitly used constitutional conventions (concerning the head of state) only once since its pioneering judgement Pl. ÚS 33/97. 5.1.2

Opening the Door Even Wider (but Differently)

In its second judgement working with constitutional conventions (Pl. ÚS 14/01, generally referred to as ‘The dispute over the countersignature of the decision of the president of the republic on the appointment of ˇ the governor and vice-governor of the CNB’), the Constitutional Court ruled on the dispute between the president and the prime minister as well as the government. The core issue here regarded the appointment ˇ of members to the Bank Council of the Czech National Bank (CNB). More precisely, the only trouble was the appointment of 3 members of ˇ the 7-member Bank Council appointed to the offices of CNB governor 3 and vice-governors. As in the previous case, both parties agreed that the president appoints all 7 members of the Bank Council (since it is explicitly stated in Art. 62(k) CCR). Hence, the merit of the dispute was not the president’s power itself but the way it should (or should not) be used. More specifically (as explained in Section 3.3.2), presidential powers in the Czech Republic are divided into 2 separate groups, i.e., those which do not require the countersignature of the prime minister or a member of the government designated by him to be valid (Art. 62 CCR) and those which do (Art. 63 CCR). The first group of powers consists solely of those enumerated in Art. 62(a) to (k) CCR, whereas the second group is composed of those explicitly enumerated in Art. 63, para. 1(a) to (k) CCR and those provided to the president in any other statute (Art. 63, para. 2). Art. 62(k) CCR states that ‘the President of the Republic: (...) shall appoint members of the Bank Council of the Czech National Bank’. It

3 For the specific facts of the case, see Section 4.1.1.

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does not specify, however, how many members the Bank Council should have nor whether all of the members are of equal status and power. That information can be learned from a statute, namely Act of law no. 6/ ˇ 1993 Coll., CNB Act, which states that ‘the Bank Council shall consist of seven members, comprising the Governor of the Czech National Bank, two Vice-Governors of the Czech National Bank, and four other members of the Bank Council of the Czech National Bank’ (Art. 6, s. 1) and that ‘the Governor, Vice-Governors, and other members shall be appointed and relieved from office by the President of the Republic’ (Art. 6, s. 2). President Havel insisted that all 7 members of the Bank Council (including the governor and the vice-governors) are appointed by him according to Art. 62 CCR, which means that the countersignature of the prime minister was not required. Prime Minister Zeman, however, objected that Art. 62 CCR applies only to the appointment of common members of the Bank Council, whereas the power to appoint the governor and vice-governors is given to the president by a statute rather than the CCR itself; consequently, it should follow the rule stated in Art. 63, para. 2 CCR (i.e., the countersignature of the prime minister or another designated member of the government is required in this case). The prime minister, therefore, proposed that the Constitutional Court issue a judgement declaring that the president’s 29 November 2000 decision appointing the governor and vice-governor of the Czech National Bank required the countersignature of the prime minister, or of a designated member of the government, to be valid. It is necessary to highlight that, besides other arguments brought by both parties that are not relevant for the purposes of this book, the court’s reasoning also relied on a constitutional convention. However, the court remained divided on the issue of using a constitutional convention in this case. Thus, 3 different approaches to constitutional conventions can be identified (cf., Kindlová, 2008, pp. 310–315; Kysela, 2008, pp. 134– 135). First of all, we would like to pay attention to the majority opinion, written by Justice Vladimír Klokoˇcka as judge rapporteur, which decided in favour of the president and approached the issue of constitutional conventions as follows: The interpretation of Art. 62 to the effect that it grants the President of the Republic the right to appoint all members of the Bank Council without the need for countersignature, has been respected and followed in practice

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without interruption since 1993 until the debate, in the year 2000, on the ˇ act amending the CNB Act. This interpretation has been confirmed, and is even gradually developing into a constitutional convention.

The constitutional convention (that the president appoints all 7 members of the Bank Council irrespective of their status without countersignature) seems to be used by the majority opinion as an interpretational tool rather than a self-standing legal rule or even a formal source of constitutional law, which suggests that the court changed its approach to conventions compared to the previous case Pl. ÚS 33/97 and moved closer toward the Anglo-Saxon tradition. If we return to the classification by Farrah Ahmed and her colleagues (2019), it seems that the said constitutional convention in this case falls under the second option (i.e., employment) rather than the second option (i.e., enforcement). The court notes the following on this point: It is generally known that constitutional conventions are of great importance in a constitutional state governed by the rule of law precisely because they compose the Constitution into a functional whole and fill the space between the plain expression of the Constitution, principles and institutions, and the variability of constitutional situations.

Thus, the court decided not to enter the wide-open door described above. On the contrary, it appears that the court attempted to slightly close this door by adopting a weaker approach to constitutional conventions. Nevertheless, in line with the principle recognised in the previous case, this convention can be described as power-conferring rather than duty-imposing since it gives the president wider space for discretion when ˇ appointing the Bank Council of the CNB. Another change in the court’s approach can be observed as to the conditions necessary for the constitutional convention to be established. The majority opinion eased the requirements for a constitutional convention to be recognised by the court: ‘It is not essential to verify the extent to which the formal requirements for the formation of “constitutional conventions” have been met, rather the mere circumstance that, for a period of more than eight years on the basis of a value and institutional consensus on the constitutional plane, one means of proceeding has been adopted in practice, which without the resistance of any of the constitutional bodies, has repeatedly and unequivocally confirmed that

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interpretation of Art. 62(k) of the Constitution which accords to the president the exclusive power to appoint the Governor and the Viceˇ Governors of the CNB, hence a power not requiring the Prime Minister’s countersignature’. Thus, according to the majority opinion, the usus longaevus does not need to be ‘that long’ at all, and the opinio necessitatis can simply be supposed from the fact that the convention in question was ‘respected and uncontested the entire time from the inception of the Constitution’ even though it has only been a few years and there have been no opportunities to challenge this specific convention yet since the previous appointments had brought no controversies. The second approach toward constitutional conventions can be found in the concurring opinion of Justices Pavel Holländer and Vladimír Jurka. This concurring opinion eased the requirements for conventions to be recognised by the court even further. Unlike the majority opinion, the concurring judges admitted that during the period of about 8 years, the governors and vice-governors were actually appointed twice by the president with a countersignature, thus interrupting the (already fairly short) usus longaevus . However, the concurring judges did not mind since they considered the 2 exceptions merely as excesses from the otherwise wellestablished practice. They argued that ‘the fact that these are excesses from established practice is proven in particular by the general belief [i.e., opinio necessitatis ] contained in the intention4 of the adopted novelizaˇ tion of the CNB Act’. In other words, the usus longaevus is not entirely necessary for the constitutional convention to be recognised if the opinio necessitatis is sufficiently strong and includes a conviction by the relevant actors that the usus longaevus exists (irrespective of whether it is true or not). Moreover, the concurring judges reiterated the conclusions from the previous case Pl. ÚS 33/97 and insisted that constitutional conventions can be recognised ‘as the sources of constitutional law’. Hence, contrary to the majority opinion, the concurring judges took inspiration from

4 The mentioned novelisation intended to limit the president’s appointment of the ˇ governor and vice-governors of the CNB by the governmental proposal (cf., Act of law no. 442/2000 Coll.), which would be completely unnecessary if the deputies were convinced that the government could control the concerned appointments using countersignatures.

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the German tradition of Gewohnheitsrecht 5 rather than the Anglo-Saxon one, which can also be inferred by the fact that one of them, Justice Holländer, also studied in Germany during the 1990s. The concurring opinion, therefore, opened the door for very strong (and easily established) constitutional conventions even wider than judgement Pl. ÚS 33/ 97. Finally, the third approach was introduced by the dissenting opinion by Justices Vojen Güttler, Miloš Holeˇcek, Ivana Janu, ˚ Zdenˇek Kessler, and Jiˇrí Malenovský. The first (and most important) difference between their approach and the former 2 approaches is that the former approaches considered both interpretations of the written law (i.e., the power to appoint being drawn from Art. 62(k) CCR and the power to appoint being provided by statute and consequently required to be countersigned) as rationally defensible. They thus came to the conclusion that the constitutional convention in question is a convention praeter constitutionem. The 5 dissenting judges were, on the contrary, convinced that the written law can only be interpreted in a way that the countersignature is required for the appointments to be valid. Hence, they argued that the convention in question is in fact contra constitutionem. However, unlike the previous judgement Pl. ÚS 33/97, the dissenting opinion held that even constitutional conventions contra constitutionem cannot be a priori ruled out, as a constitutional convention can be a norm of constitutional law capable of derogating basically any written constitutional rule. The quantity and quality of practice that should lead to the emergence of convention contra constitutionem must, however, be significantly higher than the volume and quality of practice leading to

5 This can be supported by the fact that the concurring opinion explicitly refers to one of the German Federal Constitutional Court’s judgements (BVerfGE, 72, 175), which, according to the concurring judges, ‘accepts constitutional convention in dealings between the German Bundestag and Bundesrat’. It is also interesting that even though the mentioned judgement of the German Constitutional Court works with ‘unbeanstandet gebliebener Staatspraxis ’, the understanding of constitutional conventions by the concurring judges was arguably inspired by German customary law (Gewohnheitsrecht ) rather than undisputed praxis (unbeanstandet gebliebene Staatspraxis ), which resulted in the aforementioned strong conception of conventions (i.e., convention as a source of constitutional law). The similar approach (and thus possibly also the similar source of inspiration) could already be observed in the first analysed judgement, Pl. ÚS 33/97, which, however, did not recognise any particular presidential constitutional convention (see the analysis above). For details on German customary law, see Chapter 2; see also Tomuschat (1972).

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the emergence of convention praeter constitutionem, because conventioncreating practice does not enter a legally indifferent space as a concentrated expression of generally permitted behaviour, which is the case of practice praeter constitutionem, but must overcome the feeling of the bindingness of a constitutionally valid countersignature requirement.

In other words, constitutional conventions contra constitutionem can be constitutionally admissible provided that the general requirements for conventions to be recognised by the court are fulfilled to a higher degree in their case. Hence, we can argue that dissenting judges again opened the door for an even stronger conception of constitutional conventions in the sense that, according to them, the conventions can even overrule written constitutional law under specific circumstances (cf., Avril & Gicquel, 1989, pp. 18–19). This approach to constitutional convention resembles neither the Anglo-Saxon nor the German tradition. However, it appears to be quite similar to the conception of custom in public international law, which makes sense since one of the dissenting judges, Justice Malenovský, is a professor of public international law. The dissenting judges are, however, significantly stricter as far as the general requirements for conventions to be recognised are concerned. As to usus longeavus, they require the constitutional practice to be longstanding, uniform, and continuous, which was not fulfilled in this case. The dissenting judges pointed out that the practice was too short and interrupted twice. In their opinion, The properties of uniformity and longstandingness of practice must be interpreted in such a way that the given convention is created by constitutional bodies, regardless of how their specific composition changes over time. On the contrary, the relevance of the convention is somewhat reduced if only a constitutional body with unchanged composition took part in its alleged creation, and moreover, a monocratic body, as is the case on the part of the President of the Republic.

Thus, it is hard for the dissenting judges to accept that the convention was created by only one president, Havel, before he was even replaced by someone else. Regarding the opinio necessitatis , the dissenting judges argue that the fact that no one has challenged the practice yet is by itself not sufficient because the candidates which the president appointed to the offices of governor and vice-governor of the CNB could be consensual or politically

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advantageous for the government. Consequently, the dissenting judges state, ‘The subjective element of a constitutional convention (conviction of its legal bindingness) is also not fulfilled. Constitutional bodies would have to follow a convention even in situations where it is disadvantageous for them (politically or otherwise)’. To sum the argumentation of dissenting judges up, the degree of fulfilment of usus longaevus and opinio necessitatis requirements was not sufficient for a constitutional convention to be recognised contra constitutionem. We can only speculate whether the dissenting judges would approve of the considered convention if they came to the conclusion that it was actually a convention praeter constitutionem, and the requirements for it to be recognised would thus be lower than in the case of convention contra constitutionem. It was perhaps the disagreement among the constitutional judges leading to 3 different approaches toward constitutional conventions that caused the Constitutional Court to be rather hesitant in using constitutional conventions (at least with respect to the head of the state and its powers) since then. 5.1.3

Not Entering the Open Door

The hesitancy of the Constitutional Court in using constitutional conventions since Pl. ÚS 14/01 could be caused by the fact that, after this judgement, the 10-year term of office of these constitutional judges came to an end, and most of the first (theoretically oriented and influenced by the German tradition of Gewohnheitsrecht ) generation of constitutional judges were replaced. It seems that the second and third generations of constitutional judges did not inherit these positive attitudes toward constitutional conventions from their predecessors. Indeed, there are only 3 relevant judgements from the Constitutional Court that at least mention constitutional conventions with regard to the head of the state after Pl. ÚS 14/01, namely judgement Pl. ÚS 87/06, generally referred to as ‘On the power of the president of the republic to appoint the vice-chairperson of the Supreme Court‘, judgement Pl. ÚS 36/17, generally referred to as ‘Amnesty – deciding on a violation of the amnesty condition’, and judgement Pl. ÚS 6/21, generally referred to as ‘Tax package abolishing the so-called super gross wage and the president’s veto’. In the first judgement, the court decided on a conflict between President Klaus and Chairperson of the Supreme Court Iva Brožová. She

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proposed that the Constitutional Court quash President Klaus’ appointment of the second vice-chairperson to the Supreme Court (for details see also Section 4.1.3). One of her important arguments was that President Klaus overstepped his powers by appointing the second vice-chairperson because, even though the constitution (Art. 62(f) CCR) states that the president appoints vice-chairpersons (in plural) of the Supreme Court, from s. 15 of Act No. 6/2002 Coll. on courts and judges, it is assumed that there is only one vice-chairperson of the Supreme Court at any given time. Chairperson Brožová argued that it was this interpretation of Art. 62(f) CCR that ‘has been respected and adhered to since 1993, making this interpretation and application a constitutional convention’. Even though the Constitutional Court decided in favour of the chairperson of the Supreme Court, the majority opinion as well as most of the dissenting judges avoided using constitutional conventions in their reasoning, instead bringing other arguments based on the separation of powers and the independence of the judiciary. Moreover, Justice Pavel Rychetský held in his dissenting opinion that ‘to review the constitutional act issued by the President of the Republic in accordance with Art. 62 of the Constitution from the point of view of compliance with constitutional conventions and also compliance with sub-constitutional law (…) is a power that was not entrusted to the Constitutional Court by the Constitution’. The only exception in this respect was the dissenting opinion by Justice Eliška Wagnerová, who argued that ‘the President of the Republic is the state body competent to issue a decision on the appointment of the Vice-Chairperson of the Supreme Court, but only in compliance with constitutional conventions and the provisions of the Law on Courts and Judges’. She would, therefore, prefer to recognise the convention suggested by the chairperson of the Supreme Court. Concerning her approach toward constitutional conventions, she referred to the aforementioned concurring opinion of Justices Holländer and Jurka on judgement Pl. ÚS 14/01. The second judgement was even more hesitant. It concerned the question of whether the president (M. Zeman at that time) had the power to decide, by himself, on a violation of conditions set by his predecessor’s amnesty decision. Since the amnesty in question was the first of its kind (i.e., the first which set any conditions under which a person originally benefitting from an amnesty decision ceased to benefit from it because of their violation), the court simply held that the requirements (especially

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usus longaevus ) for the possible constitutional convention to be established and recognised by the court were not (and could not) be fulfilled. The court thus decided the case using entirely different arguments in its reasoning. In the last case, the Constitutional Court rejected a motion by a group of senators to quash Act No. 609/2020 Coll. The senators argued that the act was adopted by a constitutionally deficient legislative procedure since President Zeman neither vetoed6 nor signed it, which is not in accordance with Art. 51 CCR stating that ‘statutes that have been adopted shall be signed by the President of the Chamber of Deputies, the President of the Republic, and the Prime Minister’ (cf. Herc, 2015; Kysela, 2009; Suchánek, 2010; Sládeˇcek et al., 2016; see also Section 4.1.2). The government which defended the act in question also argued their case with reference to a constitutional convention, stating that unless the president returns the bill in a formalised way, with reasons given, and within 15 days, as Art. 50, para. 1 CCR requires, there is nothing preventing the bill from promulgation and entering into force. In other words, the government argued that there is a convention that, among other things, does not require the president to actually sign the bill in order for it to come into force. The Constitutional Court agreed with the government and held that ‘not attaching a signature of the President to the adopted law does not by itself reach sufficient intensity to affect (proper) completion of the legislative process’. However, even though the court de facto recognised the aforementioned constitutional convention, it has never referred to it being a convention. Indeed, the court did not even use the term ‘constitutional convention’ once in its own reasoning, which perfectly resembles the reluctance (or the reserved attitude) concerning constitutional conventions that we have tried to describe in this section.

6 President Zeman sent the bill back to the president of the Chamber of Deputies along with a letter simply stating, ‘I return the said law, dear Mr. President, for further measures’, which does not qualify as a formal presidential veto according to the Art. 50 para. 1 CCR. The president also clarified afterwards that his letter should not have been understood as a presidential veto of the bill.

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Supreme Administrative Court Entering the Door Instead?

Although the Constitutional Court seems hesitant to enter the door it opened itself, the Supreme Administrative Court has used this opportunity at least once in its judgement 4 Ans 9/2007—197, generally referred to as ‘Langer II – the case of court nominees-in-waiting’. This case concerned the power of the president to appoint (or not to appoint) judges (cf., Art. 63, para. 1(i) CCR). More precisely, President Klaus refused to appoint several court nominees-in-waiting to the offices of judge even though they satisfied all legal requirements for being appointed, and the government issued a resolution recommending the prime minister countersign the decision of the president on the appointment of candidates. President Klaus refused the appointment because he believed that no one should be appointed to the office of a judge before she or he turns 30 years of age. However, Act of Law no. 6/2002 Coll. on courts and judges did not require them to be over 30 at that time. As a result, the government issued a resolution including the previously recommended candidates under 30 once again. Nevertheless, the president remained inactive and did not decide on the appointment or refusal to appoint at all. Petr Langer, one of the concerned court nomineesin-waiting, sought the protection of his due process rights against the inactivity of the president before administrative courts. Leaving the other arguments aside, it is of high interest for this book that the Supreme Administrative Court based its judgement in favour of the petitioner on a constitutional convention. The court rejected the president’s argument that ‘the government’s resolution, by which it recommends the Prime Minister to countersign the decision of the President of the Republic on the appointment of candidates, does not have any legal consequences’. To the contrary, with reference to the aforementioned majority opinion in Constitutional Court judgement Pl. ÚS 14/ 01, the court held that ‘the established constitutional convention binds the constitutional actors in a political sense, and serves as an interpretive guide for the interpretation of the Constitution by the Constitutional Court and the ordinary courts’. In this particular case, the Supreme Administrative Court recognised the constitutional convention regarding ‘The reaction of the President of the Republic to the initiative of the (…) Government, by which a set of candidates for the positions of judges is submitted together with accompanying documents. The Supreme Administrative Court emphasises that

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the content of the convention is that the president reacts to the submitted initiative’. The mentioned convention, therefore, gives rise to the legitimate expectation of candidates that their cases will be decided in accordance with the principles of due process (e.g., in a timely manner and on clearly explained grounds). In addition, the convention also obliges the president to respect the legitimate expectation and due process rights of concerned candidates. In other words, the president does not have the legal obligation to appoint all candidates. However, once the president receives the government’s resolution, he is obliged to decide in a timely manner and to provide satisfactory and convincing legal grounds in case of a refusal to appoint any of the candidates on the list. Although the approach to constitutional conventions by the Supreme Administrative Court almost perfectly resembles the approach of the majority opinion of the Constitutional Court in judgement Pl. ÚS 14/ 01, there is still one quite important difference. Unlike both conventions recognised by the Constitutional Court, the present convention is dutyimposing rather than power-conferring. Hence, we can conclude that it was the Supreme Administrative Court that decided to enter the door opened by the Constitutional Court and used a constitutional convention to limit the president’s room for discretion for the very first time in the short history of the constitutional system in the Czech Republic. This is especially important since, as we highlighted in Chapter 2, balancing the power of constitutional actors and limiting the arbitrariness in governmental action is the original purpose of constitutional conventions (see Dicey, 1885, p. 285; Jaconelli, 1999, p. 27; Sirota, 2011, p. 30). 5.1.5

Summary

To conclude this analysis, we can reiterate that presidential constitutional conventions were introduced to the Czech legal environment by the Constitutional Court, which has predominantly drawn its ideas (especially during the first decade after the Velvet Revolution) from Germany (the notion of Gewohnheitsrecht ). Consequently, the initial approach of the court to constitutional conventions significantly favoured a strong conception, understanding conventions as formally binding sources of constitutional law (Pl. ÚS 33/97). However, although

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intensively discussed, such a strong conception of conventions has never been used by the court in its reasoning. Instead, the court divided into 3 separate (and even mutually contradictory) approaches toward conventions in its second relevant judgement (Pl. ÚS 14/01). The judges could not agree on 2 important questions, namely whether conventions are mere interpretational tools (Anglo-Saxon tradition) or sources of constitutional law in and of themselves (German tradition of Gewohnheitsrecht ) and whether it is possible to recognise conventions not only praeter constitutionem but also contra constitutionem (notion of customs in public international law). The majority opinion of the Constitutional Court as well as the Supreme Administrative Court in its later judgement (4 Ans 9/2007—197) favoured conventions praeter constitutionem, understood as interpretational tools, which thus seems to be the dominant approach in the Czech Republic at the moment. It has to be mentioned, however, that we work with significantly limited data since the Constitutional Court changed its proactive attitude toward conventions after replacing the first generation of judges. Since then, the court has avoided using constitutional conventions in its reasoning (cf., Pl. ÚS 87/06, Pl. ÚS 36/17, Pl. ÚS 6/21). Another change in the course of things can be observed as to the type of conventions discussed (either by the court itself or by disputing parties) from power-conferring to duty-imposing. An explanation of this shift can rest in the unique position and personality of Václav Havel (i.e., the former leader of the anti-communist movement and the first democratically elected president after the Velvet Revolution respected by the vast majority of the population irrespective of political orientation), who held the office during the first decade. The latter 2 presidents have not possessed such a privileged position and thus managed to gain majoritarian rather than consensual trust and support throughout the entire society. As leaders of the 2 major political parties in the 1990s and former prime ministers, they were perceived as more or less politically and ideologically anchored presidents, dividing the population and the political representation into 2 groups—their supporters and opponents. Hence, it appears to be reasonable that the other constitutional actors (the Constitutional Court included) tended to restrict their powers rather than strengthen them.

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5.2

Slovakia

In contrast to the Constitutional Court of the Czech Republic, the Slovak Constitutional Court has the power to ‘give an interpretation of the Constitution or constitutional law if the matter is disputable’ (Art. 128 of the Constitution of the Slovak Republic, from now on CSR). Such an ‘interpretation is generally binding from the date of its promulgation’ (Art. 128 CSR). This special power gives the court rather extensive space for featuring issues of constitutional theory, constitutional conventions included. Therefore, it could be expected that the Slovak Constitutional Court would analyse and use constitutional conventions in more detail than its Czech counterpart. However, compared to the Czech legal environment, the recognition and use of constitutional conventions in Slovakia have been (a) significantly delayed, with the first occurrence in 2011 (i.e., almost 14 years after the Czech pioneering judgement Pl. ÚS 33/97) and (b) rather restrained, explicitly rejecting that a constitutional convention could by itself be an enforceable source of constitutional law. Taking into account the aforementioned delay, we believe that the Slovak legal environment could have been inspired by the development of the Czech Constitutional Court’s approach to conventions. This hypothesis can further be supported by the fact that Slovak legal scholars quite frequently referred to both Czech scholarship and the case law of the Czech Constitutional Court (cf., Giba et al., 2019, p. 87; Káˇcer, 2018, pp. 557–559; Neumann, 2019, p. 4; for detail, see the Chapter 2). Interestingly enough, this was rejected by Slovak scholars in the semi-structured interviews that we conducted. Another interesting observation is that out of the 6 decisions by the Slovak Constitutional Court that at least mentioned constitutional conventions regarding the head of the state, the first 5 of them focused solely on the president’s powers to appoint public officials. Hence, in Slovakia, it was the appointment disputes that helped develop the Constitutional Court’s approach to constitutional conventions, and the court has not recognised any constitutional convention beyond this narrow area of the president’s powers yet. Similar to the Czech Republic, the development of case law featuring presidential constitutional conventions in Slovakia can be divided into several periods, each described and analysed in the following separate subchapters: (a) the period of introducing of conventions and disputing the possibilities of using them in the Constitutional Court’s reasoning

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(i.e., ‘Discovering constitutional conventions step-by-step’), (b) active argumentation by constitutional conventions (concerning only the president’s appointment powers) in the court’s reasoning (i.e., ‘Active use of constitutional conventions in reasoning’), and (c) the first (hitherto unsuccessful) attempts by disputing parties to extend the scope of constitutional conventions to other areas than just the appointment powers of the president of the Slovak Republic (i.e., ‘Constitutional conventions beyond appointment cases?’). The structure of the individual subchapters follows the same pattern as in the subchapters analysing Czech case law. A brief description of the facts and legal questions of each relevant case follows the analysis of the role played by constitutional conventions in the court’s reasoning and/or the argumentation of the parties to the dispute. If there is a specific constitutional convention recognised by the court in its reasoning, the analysis is (again) concluded by the classification of the convention using the categories provided in Chapter 2. 5.2.1

Discovering Constitutional Conventions Step-by-Step

The first judgement of the Slovak Constitutional Court that we would like to address only concerns the president indirectly. It is judgement PL. ÚS 95/2011, generally referred to as ‘the public and/or secret ballot of the candidate for the position of the General Prosecutor of the Slovak Republic’. The judgement concerns the president indirectly because, although it is the president who appoints the General Prosecutor and other public officials mentioned in the judgement (Art. 102, para. 1(h), (s), and (t) CSR), the core issue in this case concerned the manner of nominating the candidates rather than their appointment itself. To make the description of this rather introductory judgement brief, we believe that it is sufficient to mention that the court rejected a motion by the First Deputy General Prosecutor and a group of 35 members of the National Council to declare changes made in Act No. 350/1996 Coll. on the rules of procedure of the National Council of the Slovak Republic to be unconstitutional. The changes in question regarded the manner of nominating candidates for the aforementioned public offices (General Prosecutor included). Previously, these candidates were elected by members of the National Council by way of a secret ballot. According to the new act, the secret ballot was no longer obligatory, which was determined to be constitutional in the court’s opinion.

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One could ask why this judgement is of such importance that it has to be mentioned in this book. The answer can be found in one particular sentence that the court used in its reasoning: ‘All those involved should therefore be aware that by their actions they are also co-creating constitutional conventions, which can be legitimately expected to be repetitively followed in the future’. In other words, the Constitutional Court recognised that constitutional actors’ behaviour (the president included) can actually give rise to constitutional conventions that could be legitimately expected to be followed. Even though it took several more years than in the Czech Republic, the Slovak Constitutional Court also introduced constitutional conventions to the Slovak legal environment. However, this does not mean that the Constitutional Court was exclusively formalist until 2011. Similar to the Czech Constitutional Court, the Slovak Constitutional Court continuously worked with the concept of unwritten constitutional norms, principles, and values creating the substantive core of the constitution (cf., I. ÚS 74/93, PL. ÚS 16/95, I. ÚS 10/98, PL. ÚS 7/2017, PL. ÚS 21/2014). What the court’s case law avoided until 2011, however, was explicitly adding constitutional conventions into the mix of relevant unwritten constitutional rules, which consequently makes judgement PL. ÚS 95/2011 an important piece of the puzzle analysed in this book, even though the court actually did not use any specific constitutional convention in its reasoning concerning this case. The previous judgement is closely connected to decision PL. ÚS 4/ 2012, generally referred to as ‘to the power of the president regarding the appointment of the General Prosecutor under Art. 102, para. 1(t) and Art. 150 of the Constitution of the Slovak Republic’ (for a general description of the dispute, see Giba et al., 2019, p. 252; Krošlák et al., 2016, pp. 522–524; see also Section 4.2.3). In this decision, the Constitutional Court interpreted the mentioned provisions of the CSR in a way that the president would be constitutionally required to either appoint the candidate elected by the National Council or reject the appointment. What the court considered unconstitutional was the inactivity of the president (i.e., not issuing a decision at all). President Gašparoviˇc initially argued that his inactivity was primarily caused by waiting for the Constitutional Court’s judgement on the constitutionality of changes adopted to the election procedure in the National Council (i.e., the judgement described above). This argument, however, became obsolete at the moment when judgement PL. ÚS 95/2011 was passed.

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As far as the decision not to appoint the elected candidate, continued the court, the president is restricted solely to the mentioned areas: The grounds that the candidate does not meet the legal requirements for appointment, or due to a grave fact relating to the person of the candidate, which reasonably calls into question his ability to perform his function (...) a dignified way (...), or in a way that does not conflict with the very purpose or the proper functioning of the constitutional body she or he is supposed to manage. (...) The President shall state the reasons for nonappointment, and these must not be arbitrary.

The decision of the Constitutional Court is in some ways similar to the aforementioned judgement of the Czech Supreme Administrative Court 4 Ans 9/2007—197. In both cases, the courts require the presidents to actively decide on the matter of appointments and, in both cases, try to restrict the presidents’ discretionary power concerning grounds for a refusal of appointment. Nevertheless, there are 2 important differences between these 2 judgements. First, the Slovak Constitutional Court seems to leave the president significantly more room for discretion as it allows the president to reject appointments not only because a candidate does not meet the legal requirements for appointment but (unlike the Czech Supreme Administrative Court) also because of serious facts relating to the person of the candidate provided that these (profoundly more subjective) grounds are not arbitrary. This noticeably more open attitude toward the president’s discretion can be caused by a second major difference between both decisions, which is also of higher interest for the purpose of this book. Contrary to the Czech Supreme Administrative Court, the Slovak Constitutional Court did not come to the conclusion that there was a relevant constitutional convention limiting the amount of presidential discretion. Even though the court tried to find such a convention, it ultimately held the following opinion: It should be noted that the mentioned case is the first when the President expressed reservations to the National Council’s proposal for the appointment of the General Prosecutor. From this fact, however, it is not possible to draw a conclusion about a constitutional convention, because, in none of the previous cases of appointment, there was any dispute about the scope of the President’s discretion.

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As to the Constitutional Court’s approach toward constitutional conventions, it appears that the reasoning in question more so resembles the dissenting opinion to judgement of the Czech Constitutional Court Pl.ÚS 14/01 and judgement of the Czech Constitutional Court Pl.ÚS 36/17 rather than the judgement of the Czech Supreme Administrative Court. It corresponds to the dissenting opinion in the sense that both included a conflict that has already taken place and been successfully resolved by the relevant actors as an important part of the opinio necessitatis requirement for the constitutional conventions to be established. The resemblance to judgement Pl.ÚS 36/17 can be observed in the hesitancy of both the Czech and the Slovak Constitutional Courts to recognise a constitutional convention in a situation where relevant facts have hitherto happened only once (first amnesty of its kind in the Czech Republic and first dispute between the president and the National Council on appointment powers in the Slovak case). Consequently, it has to be remembered that neither of the 2 already described decisions of the Slovak Constitutional Court actually used the constitutional convention as one of the relevant and important points in their reasoning. Another step toward establishing constitutional conventions can be observed in judgement I. ÚS 397/2014, generally referred to as ‘The parliamentary form of government as an essential requirement of the Constitution of the Slovak Republic and shared appointment powers of the president of the Slovak Republic and the limits of her of his discretion’. This judgement was another chapter of the story on the appointment of the General Prosecutor (see also Chapter 4). After the aforementioned decision of the Constitutional Court PL. ÚS 4/2012, President Gašparoviˇc issued a decision by which he refused to appoint ˇ the elected candidate, Jozef Centéš, to the office of General Prosecutor ˇ on grounds that, in the opinion of Centéš, exceeded the limits set by ˇ the court and were completely arbitrary. Hence, Centéš decided to file an individual constitutional complaint against the president’s decision. The court held that the president indeed significantly exceeded his room for discretion and consequently violated several fundamental rights of the applicant, namely the right to access elected and public offices under equal conditions (Art. 30, para. 4 CSR, Art. 21, para. 4 Charter of Fundamental Rights and Freedoms) and the right to have access, in general terms of equality, to public service in one’s country (Art. 25(c) International Covenant on Civil and Political Rights).

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However, what is most important for the purposes of this book is the reasoning of the court, which—among other arguments—featured constitutional conventions. From the previous 2 decisions of the Slovak Constitutional Court, we already know that the actions of constitutional actors (the president included) may give rise to constitutional conventions and that the first occurrence of a specific action by the president does not suffice for the establishment of a convention. In the present judgement, the court went one step further: The limits of the President’s discretion in the exercise of his shared creative powers can be established in several ways, which primarily include limits established directly in the Constitution or statutes, but also limits defined in the case law of the Constitutional Court or other (including international) courts, as well as limits deducible not only from the generally accepted constitutional conventions but in principle also based on emerging constitutional conventions based on the level of political and legal culture that can be legitimately demanded from the highest constitutional actors.

This is interesting for 2 reasons. First, it seems that if the court indeed recognised the constitutional convention, it would most probably use such a convention as grounds for its reasoning. Second, constitutional conventions that could potentially be used as arguments in the court’s reasoning do not even have to be fully established. The Constitutional Court in this case created a category of emerging constitutional conventions which requires a lower degree of usus longaevus to be recognised (for deeper analysis, see Chapter 2, cf., Orosz & Volˇcko, 2013; Giba, 2020). These 2 points suggest that there are significant similarities between the way the Slovak Constitutional Court thinks about constitutional conventions and the approach taken by the majority opinion of the Czech Constitutional Court in judgement Pl.ÚS 14/01. However, contrary to the Czech Constitutional Court, the Slovak Constitutional Court did not actually use any constitutional conventions as an important argument in this case since it did not need to. Rather than using constitutional convention, the court relied on its previous (and already analysed) decision PL. ÚS 4/2012, where the limits for the president’s discretion were clearly set. Nevertheless, the court expressed its willingness to use constitutional conventions in its reasoning if appropriate.

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5.2.2

Active Use of Constitutional Conventions in Reasoning

The first judgement where the Slovak Constitutional Court recognised and used a constitutional convention as an argument in its reasoning was III. ÚS 571/2014, generally referred to as ‘to the powers of the president of the Slovak Republic and to the unification of the legal opinions of the Senates of the Constitutional Court of the Slovak Republic’.7 Similar to the previous 3 judgements, this judgement again concerned the appointment of key constitutional officials. This time, however, the officials in question were judges of the Constitutional Court who ‘shall be appointed by the President of the Slovak Republic for a twelve-year term on a proposal of the National Council of the Slovak Republic. The National Council of the Slovak Republic shall propose double the number of candidates for judges that shall be appointed by the President of the Slovak Republic’ (Art. 134, para. 2 CSR, as amended by Constitutional Act No. 90/2001 Coll.). The constitution at that time further stated that ‘in the case, a judge of the Constitutional Court resigns from the office, or s/he is recalled, the President of the Slovak Republic shall appoint another judge for a new term from two nominees presented by the National Council of the Slovak Republic’ (Art. 139 CSR, as amended by the Constitutional Act No. 90/2001 Coll.). In the analysed case, the appointment of 3 new judges of the Constitutional Court was needed. Hence, the National Council proposed 6 candidates to the president. The President Kiska, however, established an advisory expert committee and, upon its recommendation, decided to appoint only one of the proposed candidates. As to the other 5 candidates, President Kiska issued a decision in which he refused their appointment (Matulník, 2018, p. 84; Giba et al., 2019, pp. 254–255). Consequently, 3 of the rejected candidates filed constitutional complaints (Matulník, 2018; Procházka, 2019, pp. 64–69, 154–156) arguing that the president’s decision (again) violated their rights to access elected and public offices under equal conditions (Art. 30, para. 4 CSR, Art. 21, para. 4 Charter of Fundamental Rights and Freedoms) and to have access, in general terms of equality, to public service in one’s country (Art. 25(c) International Covenant on Civil and Political Rights). Surprisingly, both disputing parties (i.e., the complainants and the president) used constitutional conventions to support their respective 7 For the specific facts of the case, see sub-chapter 4.2.

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arguments. The complainants on the one hand argued that ‘according to the long term and established practice of applying Art. 102, para. 1(s) of the Constitution in connection with Art. 134, para. 2 of the Constitution, the President of the Slovak Republic has so far always appointed as judges one half of the candidates, i.e., the number of judges required by the Constitution’. The president, on the other hand, used a constitutional convention to defend his (by complainants disputed) decision to establish an advisory expert committee highlighting that ‘the constitutional practice of the head of the Slovak Republic when appointing judges of the Constitutional Court during the constitutional development after 1989 was also fundamentally based on expert opinions, or recommendations of experts. Hence, such a constitutional practice must be considered a constitutional convention, which is according to the legal theorist a source of constitutional law’. Thus, it was the president who offered the Constitutional Court the very strong conception of constitutional conventions corresponding to the approach of the Constitutional Court of the Czech Republic in its pioneering judgement Pl. ÚS 33/97. The Slovak Constitutional Court, however, did not accept such a strong conception in its reasoning, holding that the president’s argument ‘ignores the fundamental fact, that the basic limit for the president’s actions in rigorous areas related to the threefold separation of state powers, such as the appointment of judges to the Constitutional Court, is the text of the Constitution’. Contrary to the president’s argument, the court accepted the constitutional convention suggested by the complainants: When applying Art. 102, para. 1(s) of the Constitution in conjunction with Art. 134, para. 2 of the Constitution, the President has always proceeded in such a way that he appointed the number of judges of the Constitutional Court required by the Constitution, i.e., appointed half the number of candidates for judges of the Constitutional Court. Thus, the constitutional practice, that the President is obliged to appoint exactly half of the number of candidates as constitutional judges, has always been fully respected.

Although neither complainants nor the Constitutional Court explicitly used the term ‘constitutional convention’, it is quite evident from the context of the reasoning that, besides the argumentation based on the principles of separation of powers and the rule of law, the ‘established constitutional practise’ was one of the relevant arguments leading the

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court toward a judgement in favour of the complainants (cf., Matulník, 2018, p. 88). Hence, judgement III. ÚS 571/2014 can be described as the first decision by the Slovak Constitutional Court recognising and using a specific constitutional convention, i.e., the convention stating that the president must appoint precisely half of the candidates proposed by the National Council to the office of judges of the Constitutional Court. If we are to classify this convention using the categories described and explained in Chapter 2, we can safely say that the convention in question is, first, duty-imposing rather than power-conferring since it does not allow the president to appoint less than half of the candidates proposed by the National Council. Second, the court explicitly rejected the president’s idea that constitutional conventions are sources of law and instead accepted the convention as an interpretational tool that could serve as an argument in the court’s reasoning. Such an approach should fall under the second category (i.e., employment) within the distinction by Farrah Ahmed and her colleagues (2019). Finally, taking into account the text of the relevant aforementioned provisions of the constitution (Art. 134, para. 2 and Art. 139 CSR), it is evident that the recognised convention can be classified as praeter constitutionem rather than contra constitutionem since it only clarifies the meaning of the mentioned constitutional provisions. In the following judgement concerning (once again) the appointment of judges of the Constitutional Court, i.e., judgement I. ÚS 575/2016, generally referred to as ‘The obligation of the president of the Slovak Republic to appoint judges of the Constitutional Court of the Slovak Republic—constitutional convention and the right to access elected offices’, the court made the aforementioned constitutional convention explicit. The core of the dispute, the nature of the constitutional complaints, and the arguments proposed by the complainants were in this case almost the same as in judgement III. ÚS 571/2014. The judgement of the Constitutional Court (again in favour of the complainants), however, used the constitutional convention as the explicit and probably leading argument of its reasoning. More precisely, the court literally copied the reasoning of the already discussed judgement Pl. ÚS 14/01 of the Czech Constitutional Court and held the following: It is generally known that constitutional conventions are of great importance in a constitutional state governed by the rule of law precisely because they compose the Constitution into a functional whole and fill the space

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between the plain expression of the Constitution, principles and institutions, and the variability of constitutional situations. In a democratic state governed by the rule of law, it is hardly conceivable that the interpretation of the Constitution, its corresponding constitutional conventions respected and unchallenged since the creation of the Constitution and the Constitutional Court, and the entire practice of the three Presidents (of which two have already been elected directly by the citizens) and their decisions (in five election periods) regarding the appointment of judges of the Constitutional Court from 1993 to 2014, were all questioned due to a malicious misinterpretation of the Constitution.

It thus appears that it was the Slovak Constitutional Court that ultimately entered the door left opened by its Czech counterpart. We believe that it is not necessary to classify this constitutional convention since it entirely shares its features with the already analysed judgement III. ÚS 571/2014. What is interesting (and also questionable), however, is the inconsistency between the last 2 analysed judgements of the court and its previous decisions concerning the appointment of the General Prosecutor. In the General Prosecutor appointment cases, the court did not recognise any specific convention and consequently came to the conclusion that the president shall be given more space for discretion, significantly exceeding the pure formal check into whether a candidate meets the legal requirements for appointment (cf., PL. ÚS 4/2012). In the judges of the Constitutional Court appointment cases, the specific constitutional convention was recognised and applied, leading the court to a different conclusion that limited the president’s discretion much more significantly. The Court explicitly stated, The conclusions of the Constitutional Court expressed in the judgement PL. ÚS 4/2012 shall not be applied, as this interpretation did not change the wording of the Constitution regarding the requirements for the appointment of a judge of the Constitutional Court (...) this interpretation is not applicable in the case of candidates for judges of the Constitutional Court.

In other words, the court refused to apply the grounds of judgement PL. ÚS 4/2012 to this case even though it stated in judgement I. ÚS 397/2014 that the ‘limits of the President’s discretion derived from decision PL. ÚS 4/2012 (...) are (can be) proportionately applicable to the exercise of other appointment powers of the President’, among which the

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court explicitly included ‘the power to appoint judges of the Constitutional Court, the President and Vice-President of the Supreme Court, as well as judges of general courts, the Governor and Vice-Governor of the National Bank of Slovakia, rectors of universities or university professors’. This inconsistency of the Constitutional Court has already been criticised by Slovak jurisprudence (see Drgonec, 2018, pp. 357–362; Krošlák et al., 2016, pp. 522–524). Moreover, as explained in Chapter 4, this convention (even though explicitly recognised by the court) has not emerged in this area yet since no unambiguous settled practice can be identified so far. It remains to be noted that the recognition of the specific constitutional convention and the consequent narrowing of the president’s discretion managed to overcome both differences between the approaches of the Slovak Constitutional Court and the Czech Supreme Administrative Court discussed above. Hence, the approach of the Slovak Constitutional Court toward the president’s appointment of judges of the Constitutional Court perfectly corresponds to the approach of the Czech Supreme Administrative Court concerning the president’s appointment of the court nominees-in-waiting to the offices of judges (judgement 4 Ans 9/2007—197). 5.2.3

Constitutional Conventions Beyond Appointment Cases?

It is interesting that the Slovak Constitutional Court has only used constitutional conventions concerning the head of the state in the narrow area of appointment powers. The only (unsuccessful) attempt to extend a presidential constitutional convention’s scope outside of this restricted area can be observed in judgement PL. ÚS 7/2017 in which the court had to decide (cf., Art. 129(a) CSR, as amended by Constitutional Act No. 71/2017 Coll.) on the constitutionality of the resolution of the National Council (No. 570) annulling 3 within Slovak society highly controversial clemency decisions (No. 55/1998 Coll., No. 214/1998 Coll. and No. 3573/96-72-2417) that had been adopted by the president and the prime minister in the 1990s.8 According to the constitution, the National 8 One of these decisions was issued by President Kováˇc and the other 2 by Prime Minister Meˇciar, who temporarily held the power to issue clemency decisions after the president’s mandate was over (Art. 105, para. 1 CSR) and the parliament repeatedly failed to elect a new president. The very need for these decisions stemmed from the

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Council is allowed to annul a clemency decision only if it is incompatible with the principles of democracy and rule of law (cf., Art. 86(i) CSR). Arguing that this requirement was satisfied in the present case, the National Council used, among other arguments, the constitutional convention. It claimed that from the principles of democracy and rule of law follows that the president cannot exercise her or his powers arbitrarily. On the contrary, the power to issue amnesties and grant pardons is limited by the presidential oath, part of which reads, ‘I will perform my duties in the interest of citizens, uphold and defend the Constitution and other laws’ (Art. 104, para. 1 CSR). The National Council argued, It is not known from history that any of the previous Presidents used amnesty or a pardon to achieve goals other than those for which these institutions were established and which they pursue in every state governed by the rule of law. Since every amnesty and pardon granted by the President of the Slovak Republic prior to those cancelled by the resolution currently under review more or less respected these principles or at least did not significantly deviate from them, a constitutional convention has been established, limiting the ways and situations suitable for issuing amnesties and pardons in order for them to be in accordance with their original purpose and essence of the democratic state governed by the rule of law.

Since the clemency decisions in question deviated significantly from the mentioned constitutional convention in the sense that they ‘pursued an evidently illegitimate purposes (i.e., preventing prosecution and ensuring

longstanding conflict between the president and the prime minister, which led to several controversial situations. One of these situations was the dispute over the referendum on direct presidential elections. The government argued against this particular question being asked in the referendum and insisted that the constitutionally anchored electoral system should not be amended via referenda. Consequently, Minister of Interior Gustáv Krajˇci (unlawfully abusing his powers) ordered the printing of the referendum ballots without this particular question. In order to prevent prosecution, the prime minister issued a clemency decision in favour of Krajˇci. The second situation regarded the president’s son, Michal Kováˇc Jr., who was prosecuted for fraud (the so-called Technopol case). After an international arrest warrant was issued against Michal Kováˇc Jr., he was kidnapped, transported to Austria, and left by the police station in Hainburg by Slovak Intelligence Agency officers. This situation was again solved by clemency decisions. First the president issued a clemency decision on behalf of his son, and, after the president resigned, the prime minister issued another amnesty decision, this time in favour of the concerned Slovak Intelligence Agency officers (for more details, see judgement PL. ÚS 7/2017).

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impunity for the Prime Minister’s subordinate public officials and perpetrators of state-organised criminal activity and pardoning a President’s close relative)’, concluded the National Council, ‘such clemency decisions are contrary to the principle of legal certainty’. The Constitutional Court agreed that the clemency decisions in question were contrary to the principles of democracy and the rule of law, consequently holding that the resolution by the National Council annulling them was in accordance with the constitution. The court, however, completely avoided the argumentation proposed by the National Council based on the constitutional convention. This judgement is, therefore, comparable to judgement of the Czech Constitutional Court Pl.ÚS 87/06 where the Czech court also decided in favour of the party proposing a constitutional convention without actually featuring the proposed convention in its reasoning. Having in mind the analysed judgement of the Slovak Constitutional Court, we have to conclude that in the Slovak legal environment, constitutional conventions regarding the president have not hitherto gone beyond the narrow area of the president’s powers to appoint public officials. Also, contrary to the Czech Constitutional Court, the Slovak Constitutional Court has so far always rejected the conception of constitutional conventions as enforceable sources of constitutional law. It follows that even if the conventions crossed the borders of the president’s appointment powers in the future, they shall be consistently understood as mere interpretational tools used by courts as arguments in their reasoning. 5.2.4

Summary

To sum our findings up, we can first highlight that compared to its Czech counterpart, the Slovak Constitutional Court began discussing (and also using) presidential constitutional conventions in its reasoning significantly later (i.e., after 2000). Moreover, the first occurrences of the term conventions can be described as abstract discussions about the possibilities of using conventions (i.e., preparing the background and gaining confidence) rather than the actual use of them in the court’s reasoning (cf., PL. ÚS 95/2011, PL. ÚS 4/2012, I. ÚS 397/2014). Hence, the first (and only) proper uses of presidential constitutional conventions by the Slovak Court are of recent date (III. ÚS 571/2014, I. ÚS 575/ 2016).

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In contrast with the Czech Constitutional Court, the Slovak Court was also significantly more restrained in its approach to conventions. The Slovak Court has never even thought of the possibility of understanding conventions as sources of constitutional law or recognising conventions contra constitutionem. Moreover, the court has hitherto only recognised duty-imposing presidential constitutional conventions. This stringency can be explained by the fact that both cases of the recognised and used conventions concerned a dispute over the appointment of constitutional judges, which could jeopardise the functionality and possibly also independence of the Constitutional Court itself. Hence, it appears to be understandable that the court was rather sensitive regarding this issue and tended to restrict the president’s discretion rather than broaden it. The last concluding note concerns the area of presidential powers influenced by the conventions hitherto discussed before the Slovak Constitutional Court. It is quite interesting to point out that even though once proposed to the court (PL. ÚS 7/2017), the Slovak Court has not yet recognised or even seriously discussed any presidential constitutional convention that would go beyond the strictly limited scope of the president’s appointment powers. This observation further illustrates the rather conservative approach of the court, restrained in not only the conception and type of conventions used but also in their scope.

5.3

Final Remarks

There are several important findings worth highlighting. First of all, there is no case law working with presidential constitutional conventions in Hungary and Poland. We believe that it is primarily caused by a textual divergence in constitutions of Hungary and Poland compared to their Czech and Slovak counterparts (see the introduction of this chapter). Another explanation might be the higher level of legal formalism adopted by the Hungarian and Polish judges and legal scholars (see Chapter 2). As far as case law in the Czech Republic and Slovakia is concerned, we would like to stress that even though Czech and Slovak courts have indeed worked with presidential constitutional conventions over the past 3 decades, they have not yet generated a sample of decisions large enough for us to be able to draw any strong conclusions. More specifically, we were restricted to only 6 decisions in the Czech Republic and 6 decisions in Slovakia. Nevertheless, our analysis revealed general trends in the

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case law of both courts and also captured key similarities and differences among the studied decisions in both countries. Regarding the general trends, the Czech Constitutional Court acknowledged the possibility of constitutional conventions in the Czech legal order quite soon. Moreover, it brought the idea that conventions could be understood as sources of constitutional law (Pl. ÚS 33/97). However, this approach was weakened since various (and in some aspects mutually contradictory) understandings of conventions were brought to the table by the key judgement Pl. ÚS 14/01. After the replacement of the first with the second and third generation of judges, the court adopted a much more reserved approach toward conventions, and it seems to have preserved such an approach to date. Hence, the only continuation from the early Constitutional Court’s judgements can be observed in the judgement of the Supreme Administrative Court (4 Ans 9/2007—197). The Slovak Constitutional Court approached presidential constitutional conventions much later than the Czech Court and limited itself to merely theorising about their nature and potential use for quite a long time (see PL. ÚS 95/2011, PL. ÚS 4/2012, I. ÚS 397/2014). This might be explained by the fact that the Slovak constitutional doctrine and judiciary reflect and follow their Czech counterparts with a certain delay. A good demonstration can be the discussion on the power of constitutional courts to quash constitutional acts in the case of being contradictory to the substantive core of the constitution. The Czech Constitutional Court quashed a constitutional act in the ‘Melˇcák’ judgement of 10 September 2009 (Pl. ÚS 27/09). The Slovak Court let itself be inspired and also quashed the constitutional act 10 years later (PL. ÚS 21/2014-96). The mentioned delay is probably caused by the need to first discuss the issues doctrinally and then slowly implement them into the court’s case law. This is even more natural in the case of constitutional conventions needing sufficient time (usus longaevus ) to be established. Hence, it appears to be logical that after a rather slow start, the idea of using a convention as an argument in the court’s reasoning gradually gained strength and resulted in the actual use of them in key judgements III. ÚS 571/2014 and I. ÚS 575/2016. Considering the captured similarities between the examined judgements, it is worth mentioning that the majority of them were thematically restricted to presidential appointment powers. The only exceptions were judgements Pl. ÚS 33/97, Pl. ÚS 36/17, and Pl. ÚS 6/21 in the Czech Republic and judgement PL. ÚS 7/2017 in Slovakia. Moreover,

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the courts did not recognise nor use a specific presidential constitutional convention in any of these exceptions. The only judicially recognised presidential conventions in both countries are thus solely related to the appointment powers of the head of the state. Another similarity is the rather less stringent approach of the courts when it comes to the requirements for conventions to be recognised. This can especially be observed in the majority and concurring opinions in judgement of the Czech Constitutional Court Pl. ÚS 14/01 and judgement of the Slovak Constitutional Court I. ÚS 575/2016. This finding can also explain why the courts can (and did) recognise constitutional conventions, which can be problematic from the perspective of our own theoretical definition. The important differences regarded the general approach of the courts to constitutional conventions. First, the Slovak Court constantly understands conventions as interpretative tools and possible arguments to be used in its reasoning whereas the Czech Court (especially during the first decade) elevated conventions to binding sources of constitutional law. The understanding of the Slovak Court, therefore, is in this respect closer to our own definition of constitutional conventions provided in Chapter 2. Second, unlike the Czech Constitutional Court (in the dissenting opinion to judgement Pl. ÚS 14/01), the Slovak Court has never thought about the possibility of constitutional conventions contra constitutionem. Third, the Slovak Court has only thought about duty-imposing conventions while its Czech counterpart (again, especially during the first decade) also worked with power-conferring conventions. It remains to be noted that, given the rather small sample of the existing court decisions, it would be interesting to conduct a similar analysis a few decades later to support (or falsify) the captured trends, similarities, and differences in Czech and Slovak case law.

References Literature Ahmed, F., Albert, R., & Perry, A. (2019). Judging Constitutional Conventions. International Journal of Constitutional Law, 17 (3), 787–806. Avril, P., & Gicquel, J. (1989). Droit parlementaire. Montchrestien. Dicey, A. V. (1885). Lectures Introductory to the Study of the Law of the Constitution. Macmillan. Drgonec, J. (2018). Ústavné právo hmotné. C. H. Beck.

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Giba, M., et al. (2019). Ústavné právo. Wolters Kluwer. ˇ poradiˇt Giba, M. (2020, January 27). Nepísané ústavné pravidlá a vznik vlády. Co prezidentke? Denník N . https://dennikn.sk/1732624/nepisane-ustavne-pra vidla-a-vznik-vlady-co-poradit-prezidentke/ Granat, M., & Granat, K. (2019). The Constitution of Poland. A Contextual Analysis. Hart Publishing. ˇ 51. In P. Rychetský, et al., Ústava Ceské ˇ Herc, T. (2015). Cl. republiky. Ústavní ˇ zákon o bezpeˇcnosti CR. Komentáˇr (pp. 496–508). Wolters Kluwer. Holländer, P. (2003). Ústavnˇeprávní argumentace. Ohlédnutí po deseti letech Ústavního soudu. Linde. Jaconelli, J. (1999). The Nature of Constitutional Convention. Legal Studies, 19(1), 24–46. Jaconelli, J. (2005). Do Constitutional Conventions Bind? The Cambridge Law Journal, 64(1), 149–176. Káˇcer, M. (2018). Ústavné zvyklosti a moc prezidenta v SR. Právny obzor. Teoretický cˇasopis pre otázky štátu a práva, 101(6), 554–565. Kindlová, M. (2008). Ústavní zvyklosti jako souˇcást ústavy (komparace commonˇ wealthského pˇrístupu a judikatury Ústavního soudu CR). In K. Klíma & J. ˇ ek. Jirásek (Eds.), Pocta Jánu Gronskému (pp. 300–317). Aleš Cenˇ Krošlák, D., et al. (2016). Ústavné právo. Wolters Kluwer. Kühn, Z. (2011). The Judiciary in Central and Eastern Europe: Mechanical Jurisprudence in Transformation? Leiden. Kysela, J. (2008). Ústavní principy, ústavní konvence a ústavní inženýrství. In K. ˇ ek. Klíma & J. Jirásek (Eds.), Pocta Jánu Gronskému (pp. 121–136). Aleš Cenˇ ˇ Kysela, J. (2009). Cl. 51. In K. Klíma, et al. (Eds.), Komentáˇr k Ústavˇe a Listinˇe ˇ ek. (pp. 275–279). Aleš Cenˇ Marshall, G. (2001). Constitutional Conventions: The Rules and Forms of Political Accountability. Clarendon Press. Matulník, M. (2018). K podstate sporu o ústavný súd. Právny obzor: teoretický cˇasopis pre otázky štátu a práva, 101(1), 83–103. Neumann, J. (2019). Ústavné zvyklosti—kritika, kontext, reflexie. Právny obzor: teoretický cˇasopis pre otázky štátu a práva, 102(6), 470–482. Orosz, L., & Volˇcko, V. (2013). Ústavné zvyklosti a ich vplyv na interpretáciu, aplikáciu a zmenu práva. In E. Bárány (Ed.), Zmena práva (pp. 114–126). Ústav štátu a práva SAV. Procházka, R. (2019). Králˇ otec. Od Kováˇca po Kisku alebo naˇco nám je prezident. N Press. Sirota, L. (2011). Towards a Jurisprudence of Constitutional Conventions. Oxford University Commonwealth Law Journal, 11(1), 29–51. ˇ Sládeˇcek, V., et al. (2016). Ústava Ceské republiky. Komentáˇr . C. H. Beck. ˇ 51. In V. Šimíˇcek et al. (Eds.), Ústava Ceské ˇ Suchánek, R. (2010). Cl. republiky. Komentáˇr (pp. 620–628). Linde.

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Tomuschat, C. (1972). Verfassungsgewohnheitsrecht. Mohr Siebeck. Tuleja, P. (Ed). (2019). Konstytucja Rzeczypospolitej Polskiej. Komentarz. Wolters Kluwer.

Legislation, Other Legal Documents and Case Law Czech Republic Constitutional Act No. 1/1993 Coll. The Constitution of the Czech Republic. Act No. 246/1992 Coll., on the protection of animals against cruelty. Act No. 6/1993 Coll., on the Czech National Bank. Act No. 6/2002 Coll., on Courts and Judges.Act No. 609/2020 Coll., amending certain Taxation Acts and certain other Acts. Judgement of the Czech Constitutional Court of 21st December 1993, Pl.ÚS 19/93. Judgement of the Czech Constitutional Court of 17th December 1997, Pl.ÚS 33/97. Judgement of the Czech Constitutional Court of 20th June 2001, Pl.ÚS 14/ 01. Judgement of the Czech Constitutional Court of 12th September 2007, Pl.ÚS 87/06. Judgement of the Czech Constitutional Court of 10th September 2009, Pl. ÚS 27/09. Judgement of the Czech Constitutional Court of 19th June 2018, Pl.ÚS 36/ 17. Judgement of the Czech Constitutional Court of 22nd June 2021, Pl.ÚS 6/21. Judgement of the Supreme Administrative Court of 21st May 2008, 4 Ans 9/ 2007—197.

Slovakia Act No. 350/1996 Coll., on the Rules of Procedure of the National Council of the Slovak Republic. Constitutional Act No. 460/1992 Coll. The Constitution of the Slovak Republic. Constitutional Act No. 90/2001 Coll., amending the Constitution of the Slovak Republic. Constitutional Act No. 71/2017 Coll., amending the Constitution of the Slovak Republic. Decision of the Prime Minister of the Slovak Republic No. 55/1998 Coll. Decision of the Prime Minister of the Slovak Republic No. 214/1998 Coll. Decision of the President of the Slovak Republic of 12th December 1997, No. 3573/96-72-2417.

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Judgement of the Slovak Constitutional Court of 24th May 1995, PL. ÚS 16/ 95. Judgement of the Slovak Constitutional Court of 26th May 1998, I. ÚS 10/98. Judgement of the Slovak Constitutional Court of 31st May 2017, PL. ÚS 7/ 2017. Judgement of the Slovak Constitutional Court of 5th October 2011, PL. ÚS 95/2011. Judgement of the Slovak Constitutional Court of 4th December 2014, I. ÚS 397/2014. Judgement of the Slovak Constitutional Court of 17th March 2015, III. ÚS 571/2014. Judgement of the Slovak Constitutional Court of 6th December 2017, I. ÚS 575/2016. Judgement of the Slovak Constitutional Court of 30th January 2019, PL. ÚS 21/2014. Resolution of the National Council of the Slovak Republic of 5th April 2017, no. 570. Resolution of the Slovak Constitutional Court of 23rd November 1993, I. ÚS 74/93. Resolution of the Slovak Constitutional Court of 24th October 2012, PL. ÚS 4/2012.

Other International Covenant on Civil and political rights, adopted 16th December 1966 by General Assembly resolution 2200A (XXI). Resolution of the German Federal Constitutional Court of 13th May 1986, BVerfGE 72, 175—Wohnungsfürsorge.

CHAPTER 6

Conclusion

This book has been concerned with presidential constitutional conventions in 4 Central European countries. We believe it makes a two-fold contribution. First, the book brings a new perspective on the study of constitutional systems in general and presidential politics in particular, both of which have otherwise long before become well-established and popular topics of comparative research. Second, and perhaps more importantly, this book has opened a relatively new area of research: constitutional conventions in 4 postcommunist countries.1 We believe this book contributes to our understanding of the constitutional systems and their practical operation. In particular, given the binding nature of constitutional conventions, these rules complete the formal (constitutional) rules at play. Ignoring constitutional conventions, one may gain an incomplete or even misleading understanding of constitutional systems and their working in daily constitutional practice. In addition, constitutional conventions help explain the gap between the constitutional text and constitutional practice. Even though this gap is not huge in any of the Central European countries, it cannot be ignored in any of the countries under scrutiny.

1 Even though this book is not the first study to analyse constitutional conventions in the region, it is probably the first book that provides a comparative and systematic analysis of presidential constitutional conventions in the region.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8_6

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The book is opened by an analysis of the historical legal background of each Central European country (Chapter 2) that facilitates understanding the overall context in which constitutional conventions in the region can be studied. Although the 4 scrutinised countries have very similar historical developments rooted in the Habsburg monarchy, their understanding of constitutional conventions is astonishingly divergent. The Kelsenian heritage of describing the legal system as a closed one where each norm derives from another one remained the prevailing ideology in Poland and to a large extent also in Hungary, where constitutional conventions have not been part of the scholarly discussion or constitutional jurisprudence. Some usages and habits have been established, but there are no proper expressions to conceptualise them, their effect or their role in the constitutional system. Contrary to this rather Kelsenian approach, the Czech Constitutional Court introduced constitutional conventions to case law, which then got a footing in scholarly debate, discussing their understanding and position among constitutional rules. Interestingly enough, this was followed by Slovakia, even if less intensively. In Chapter 2, we also analyse the historical legal context of the 4 Central European countries in order to describe the major features of the legal thinking and local scholarship essential for understanding the concept of constitutional conventions in the region. Chapter 2 furthermore provides a review of literature on constitutional conventions. Quite naturally, the review is above all concerned with literature regarding the United Kingdom, where the concept originated. We argue that the concept of the constitutional convention could migrate from a very different legal and political environment (the United Kingdom) to Central European countries, even though the understanding of the concept in the region differs in some aspects from the concept applied in Commonwealth countries. In Chapter 2, we suggest a working definition of the constitutional convention (which was subsequently applied only on those conventions directly connected to the performance of presidential power) that basically reflects most of the key aspects of the concept. By constitutional conventions, we usually mean unwritten, nonlegal, and settled rules of conduct that originate in constitutional practice. They supplement the constitution, bind relevant constitutional actors, and are unenforceable by legal means. Their normative force results from their importance for the proper functioning of the constitutional system; breaches of constitutional conventions, therefore, lead to public criticism or political sanction.

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In Chapter 3, we analyse the formal constitutional position of presidents within the constitutions of the Central European countries, including an analysis of the position of the president within the division of powers, an analysis of their legislative and non-legislative powers (occasionally completed with how these powers were performed in practice), and finally an analysis of the scope and frequency of constitutional amendments that affected the presidency in the constitutional systems. Our definition of constitutional conventions presented in Chapter 2 has subsequently been applied to presidential politics in the 4 Central European countries (Chapter 4), allowing us to identify 24 presidential constitutional conventions in the region. Irrespective of their nature, they make presidential behaviour in specific situations more predictable. Most of the conventions tend to limit presidential power as well as presidential discretion. Notably, we can observe that most of the conventions significantly curtail presidential power in Hungary. Even though it is generally assumed that constitutional conventions are complementary to formal constitutional provisions and usually work as preater constitutionem rules, we found 6 contra constitutionem conventions, which indicates that constitutional conventions may occasionally change and even contradict formal rules of politics. Despite the quite hostile environment (in terms of the case law of the constitutional courts and/or academia) toward the constitutional conventions in Poland and Hungary, these informal rules emerged in both countries. It should be highlighted that constitutional conventions are created by political actors occupying relevant constitutional positions (cf., Forsey, 1984, p. 13). Obviously, politicians do not act deliberately to create and solidify constitutional conventions. Instead, these informal rules emerge as the unintended by-products of political actors’ steps. After all, 21 out of 24 presidential conventions were established by precedent (most likely without even thinking that such a practice might become a constitutional convention in the future) but not by agreement (indicating an effort of key political players to deliberately establish a binding rule). Still, if a specific way of behaviour is generally found as legitimate, correct, and adequate (or it just makes the processes framed by the constitutional text smoother by giving them a precise course), the rule is repeatedly followed, then constitutional conventions may arise. A powerful tool to consolidate emerging constitutional conventions is explicit and public statements from politicians on acting in line with a constitutional convention that they consider binding even though the rule may not bring them

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an immediate political benefit. However, we have rarely seen such an approach to the conventions (some notable exceptions can be found in Slovakia). In Chapter 5, we analysed how presidential constitutional conventions are approached and understood by the (mostly constitutional) courts of these Central European countries. This chapter, therefore, studied conventions from a different perspective. Its main purpose was to examine what practises the courts identified as constitutional conventions and how they worked with such conventions in their reasoning irrespective of whether such practices comply with our definition of constitutional convention or not. The conventions recognised by courts are significantly different from those we identified in Chapter 4. The key finding in Chapter 5 was that the case law of constitutional courts in Hungary and Poland does not contain any presidential constitutional conventions at all. This can be explained not only by the aforementioned Kelsenian heritage but also by the fact that the constitutions of these 2 countries explicitly enumerate what shall (and shall not) be considered a source of law (i.e., what shall and shall not be taken into account by courts in their decision-making). Since neither of the constitutions included constitutional conventions (or any other unwritten rules) in these enumerations, it appears to be evident that the courts, which are bound by the constitution, do not mention the conventions in their case law. Unlike Hungary and Poland, the Czech and Slovak constitutions do not explicitly enumerate sources of law, leaving some leeway for courts to work with unwritten rules, such as constitutional principles and/or constitutional conventions. Our analysis showed that both the Czech and Slovak courts used this opportunity and brought presidential constitutional conventions into their reasoning several times. Their approach to conventions, however, differed and evolved over time. In this respect, the Czech Constitutional Court was more active and had already introduced the idea of constitutional conventions into the Czech legal environment in the 1990s. Furthermore, the first generation of constitutional judges understood the conventions not only as interpretative and argumentative tools but also as self-standing and binding sources of constitutional law. However, the second and third generation of judges adopted a more reserved attitude toward conventions and decided not to enter the door left wide open by their predecessors. Hence, the only active use of presidential constitutional convention after 2001

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can be observed in a judgement of the Supreme Administrative Court, which (to a certain degree) followed the path delineated by the earlier judgements of the Constitutional Court. The Slovak Constitutional Court discovered presidential constitutional conventions later. Since its first inclinations in 2011, the court gradually strengthened the notion of conventions in its reasoning, which resulted in a recognition of them and 2 active usages of constitutional conventions in 2015 and 2017. Contrary to its Czech counterpart, the Slovak Court remained rather conservative in its understanding of conventions. It has never considered them to be anything more than useful interpretative and argumentative tools. As indicated above, we hoped that we opened a new field of comparative and interdisciplinary (law and political science) research for the Central European region. Even though our book provides a couple of answers to important questions regarding presidential constitutional conventions in the region, it has opened several avenues for future research at the same time. For example, there is the puzzle of the difference between Slovakia and the Czech Republic, on the one hand, and Hungary and Poland, on the other. Whereas the former countries appear to be more welcoming to the concept of constitutional conventions, as far as constitutional courts and academia are concerned, the latter countries appear to be far more hostile to the concept. One of the possible explanations for this divergence might just be pure coincidence. The Czech Constitutional Court applied the expression of constitutional conventions without actually explaining what it meant: Were they thought to be constitutional customary law or some kind of settled practice, as the German legal tradition conceptualised them with a different normative force, or were they constitutional conventions according to the Westminster system? In both cases, the legal transplant resulted in something else than a source of inspiration. The word convention is more than mere praxis but less than customary law, so it does not really fit into the German categories; yet, it does not match with the British one either, which traditionally has excluded the application of conventions before the courts. Nonetheless, under the ever expanding influence of common law legal systems in the Czech Republic, the expression became a familiar one and has also been a useful tool for describing the differences between the formal constitution and the real one as it has actually been applied. In Hungary, the first constitutional judges had completely different training

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and probably, therefore, conceptualised the legal system as much more in line with a very formal Kelsenian understanding. The prestige, reputation, and, of course, the knowledge of a given legal system largely determine which institutions are transplanted and which are not (Graziadei, 2019); on the other hand, legal transplants often have their own life and, as legal irritants, cause unintended developments in the legal system (Teubner, 1998), which is also probably the case in the Czech Republic. Going beyond this eventuality, it also requires an explanation of how successful these transplants are, which can be assessed as to whether they are useful and fill an existing gap in the legal system. As described in the second chapter, usages, habits, and customs arise everywhere, but if they are consistently observed, they easily remind us of conventions (Taylor, 2014), which are useful for labelling the existing phenomena of incongruencies between real existing and written constitutions. This is precisely the function of conventions in the Czech Republic: enforcing the informal understanding of how law should work if there is a contradiction between written rules and their handling. On the contrary, this is exactly what is lacking in Hungary: a label or concept of how and why informal practices and habitual rules should be respected. The lack of this instrument also contributed to the confusion on how to handle voluntarist legislation redesigning the conventional understanding of rules like the election of the president to the Supreme Court. Furthermore, it appears interesting to inquire into the awareness of constitutional conventions among active politicians, to analyse how this awareness changes over time, and to grasp how politicians actually understand the term ‘constitutional conventions’. Data gathered from such research might elucidate the point of view of key actors who strengthen/ weaken or create/destroy constitutional conventions. There is the question of the future of constitutional conventions in times of abusive constitutionalism in the region (e.g., Kosaˇr & Šipulová, 2018; Landau, 2013). The constitutional conventions might be eroded as constitutional texts are amended in order to make a state less democratic than it was before. Disregarding or purposefully violating well-established conventions may also have the effect of rallying around the flag because it can make autocratic tendencies more obvious. Connected to the previous point, a related area of research that we consider crucial is the relationship between the existence and relevance of

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constitutional conventions on the one hand and the quality of democracy on the other hand. Analysing democratic decay in the USA and elsewhere, Levitsky and Ziblatt repeatedly mention ‘unwritten democratic norms’ or ‘unwritten political conventions’ as soft democratic ‘guardrails’ (Levitsky & Ziblatt, 2018, pp. 8, 195, 197, 208). Their understanding of unwritten democratic norms is undoubtedly broader than our concept of constitutional conventions here. Still, their claims encourage future research into analysing whether there is a positive relationship between the 2 phenomena. In other words, we assume that countries that are generally considered to be liberal democracies (as measured through various indexes) tend to display a range of important constitutional conventions. These informal rules might be considered indicators of a general willingness to accept and abide by all the rules of the game, regardless of being formal or informal. After all, political actors in democratic countries cannot afford to break constitutional conventions without facing grave difficulties and fierce criticism. Instead, they feel obliged to follow the rules even if they do not enjoy a direct political benefit from complying with the constitutional convention. In contrast, in illiberal democracies, the rules of the game tend to be bent or even broken, and informal rules like constitutional conventions might be the first to be violated, their existence may be negated, or their content may even be distorted. However, these are only tentative thoughts that may only indirectly and inconsistently be derived from our analysis. For example, in Hungary, it seems that constitutional conventions carried more weight before the illiberal turn. Once the political system was dominated by a single party with illiberal tendencies, the original incentives to follow unwritten rules of conduct—to coordinate interaction among various parties and actors checking each other—were undermined. Similarly, like formal rules, constitutional conventions are objects of change, and we may identify newer constitutional conventions in the future while others may cease to exist. Still, we can expect the rise (in terms of the number and relevance) of constitutional conventions oiling the wheels of constitutional systems by providing detailed practical instructions for the behaviour of constitutional actors in specific situations that are not explicitly regulated by constitutional texts.

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References Forsey, E. A. (1984). The Courts and the Conventions of the Constitution. UNBLJ, 33, 11–42. Graziadei, M. (2019). Comparative Law, Transplants, and Receptions. In M. Reimann & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (pp. 442–474). Oxford University Press. Kosaˇr, D., & Šipulová, K. (2018). The Strasbourg Court Meets Abusive Constitutionalism: Baka v. Hungary and the Rule of Law. Hague Journal on the Rule of Law, 10(1), 83–110. Landau, D. (2013). Abusive Constitutionalism. UCDL Rev, 47 , 189–260. Levitsky, S., & Ziblatt, D. (2018). How Democracies Die. Penguin Random House. Taylor, G. (2014). Convention by Consensus: Constitutional Conventions in Germany. International Journal of Constitutional Law, 12(2), 303–329. Teubner, G. (1998). Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences. The Modern Law Review, 61(1), 11–32.

Index

A actors commander-in-chief, 46, 99, 118 Czech National Bank, 274, 275 expert, 6, 7, 9, 11, 34, 67 extremist party, 194, 195, 197 formateur, 34, 156, 186, 190, 228 General Prosecutor, 109, 289 informateur, 156 judge, 230, 231 legislator, 180 majority, 34, 149, 152, 153, 215, 230, 249, 283 public, 17, 159 scholarship, 11, 18, 32, 230, 231 acts amendment, 37, 99, 101, 103, 110, 111, 114–116, 123, 130, 200, 226 amnesty, 280, 281 appointment, 173, 209, 281, 283, 287, 292 award, 123, 219

bill, 168–170, 200, 271 clemency decision, 296, 297 countersignature, 115, 160, 162, 275 decoration, 170, 219, 227, 228 dissolution, 116 government formation, 130, 207, 210 impeachment, 101, 127 international treaty, 107 law, 48, 49, 54, 172, 173, 218, 271, 275, 283 mercy, 227 negotiation, 117, 208 pardon, 117, 227 ratification, 95 veto, 169, 200, 271

C constitution codified, 13–15, 23, 25, 45, 175 uncodified, 14, 19, 33, 45, 116

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 M. Brunclík et al., Power Beyond Constitutions, Palgrave Studies in Presidential Politics, https://doi.org/10.1007/978-3-031-34244-8

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INDEX

convention contra constitutionem, 42, 70, 207, 274, 278–280, 285, 294, 299, 301, 307 counter-constitutional, 170, 178, 229, 232, 250 creative, 70, 175, 207, 250 desuetude, 49, 120, 221, 223, 229, 232 duty-imposing, 71, 177, 180, 210, 245, 250, 273, 276, 284, 285, 294, 299, 301 enlarging, 178, 211, 232, 250, 251 informal constitutional change, 21, 22, 26, 37, 47, 56, 117 infra-convention, 72, 73, 177, 251 interpretative, 30, 70, 175, 178, 207, 211, 229, 232, 244, 246, 250, 251, 301, 308 limiting, 93, 175, 178, 209, 211, 232, 246, 251, 284, 289, 297 meso-convention, 72, 179, 211, 231, 247, 251 Ponsonby convention, 19 power-conferring, 71, 177, 180, 210, 230, 250, 273, 276, 284, 285, 294, 301 praeter constitutionem, 25, 42, 274, 278–280, 285, 294 semi-convention, 72, 177, 211, 247, 251 Verfassungswandel, 21, 22 Versteinerungstheorie, 22 courts Constitutional Court, 294 Czech Republic, 2, 4, 8, 11, 25–28, 30, 32, 35, 44, 61, 62, 91–93, 95, 100, 102, 103, 106, 132, 133, 147, 148, 154, 156–158, 168, 169, 171, 173, 174, 178, 179, 182, 190, 216, 236,

249–251, 269, 270, 274, 284–286, 288, 293, 299, 300, 309 Hungary, 2–4, 8, 11, 26, 45–48, 50, 51, 53, 62, 116–119, 121, 123, 132, 213, 223–225, 231, 232, 248, 250, 268, 299, 306–311 Poland, 2–4, 8, 11, 25, 53–62, 90, 116, 124–126, 131–133, 233–235, 238, 242, 245–248, 268, 299, 306–309 Slovakia, 2–4, 8, 11, 25, 35, 37, 38, 42, 61, 62, 90, 100, 102–104, 107, 110, 114, 132, 133, 154, 157, 159, 182–184, 187, 189, 190, 192, 194, 211, 216, 249, 252, 269, 286, 299, 300, 306, 309 Supreme Administrative Court, 242, 270, 283–285, 289, 290, 296, 300, 309 Supreme Court, 16, 17, 20, 70, 98, 109, 122, 171–177, 179, 223–226, 228–233, 242, 243, 280, 281, 296, 310 J judicial case law, 25, 28, 30, 59, 61, 268, 274 decision, 20, 27, 28, 35, 59, 243, 270 judgement, 59, 300 opinio iuris, 41 opinio necessitatis, 23, 223, 273, 277, 279, 280, 290 precedent, 27 ruling, 53, 225, 243

INDEX

usus longaevus, 32, 41, 42, 223, 273, 277, 280, 282, 291, 300

L legal system Anglo-Saxon, 14, 63 customary law, 14, 26, 309 formalistic, 23, 45, 61 German, 15, 309 positivist, 48, 52

P parliaments Chamber of Deputies, 29, 34, 94–101, 147, 149, 151, 154, 166, 168, 169, 174, 176, 179, 271, 273, 282 National Assembly, 23, 47, 50, 113, 117, 119–122, 127, 215, 220, 222 National Council, 36, 44, 51, 105–113, 115, 116, 185–187, 189, 194, 199–201, 203–208, 243, 244, 287–290, 292, 294, 296–298 Sejm, 55, 56, 58, 126, 128–132, 238, 239, 244 Senate, 29, 55, 98, 101, 168, 292 politicians Áder, János, 224 Babiš, Andrej, 153, 158 ˇ Caputová, Zuzana, 185 Duda, Andrzej, 239, 241 Dzurinda, Mikuláš, 186, 191 Fiala, Petr, 158 Fico, Robert, 186, 188

315

Fischer, Jan, 152, 155, 158 Gašparoviˇc, Ivan, 185 Göncz, Árpád, 224 Grégr, Miroslav, 166 Gross, Stanislav, 155, 158 Havel, Václav, 93, 147, 285 Heger, Eduard, 191 Jaruzelski, Wojciech, 235, 241 Kaczynski, ´ Lech, 239–241, 244 Kiska, Andrej, 185 Klaus, Václav, 93, 147, 158 Knˇ ažko, Milan, 112, 198 Komorowski, Bronisław, 239, 241 Kotleba, Marián, 194 Kováˇc, Michal, 111, 184 Kwa´sniewski, Aleksander, 241 Lexa, Ivan, 197 Lux, Josef, 155 Mádl, Ferenc, 214 Masaryk, Tomáš Garrigue, 92 Matoviˇc, Igor, 191 Moravˇcík, Jozef, 187, 191 Neˇcas, Petr, 152, 158 Paroubek, Jiˇrí, 152, 158 Pellegrini, Peter, 191 Poche, Miroslav, 167 Radiˇcová, Iveta, 191 Rath, David, 166 Rusnok, Jiˇrí, 152, 155, 158 Schmitt, Pál, 224 Schuster, Rudolf, 184 Šmarda, Michal, 167 Sobotka, Bohuslav, 158 Sólyom, László, 49 Topolánek, Mirek, 151, 154, 158 Urban, Milan, 166 Wał˛esa, Lech, 241 Zeman, Miloš, 148