On the brink

The Constitutional Court decided last week to suspend early parliamentary elections until the court rules on a complaint by Deputy Miloš Melčák. He claims a special constitutional amendment adopted by Parliament several months ago is, in fact, unconstitutional and violates his right to be elected for the entire electoral term.

Some politicians and legal experts immediately challenged Melčák's arguments when they pointed out that a constitutional amendment, approved with the required constitutional majority, cannot be - by definition - unconstitutional, and that the Constitutional Court cannot suspend constitutional amendments. If it did so, we could possibly face an absurd situation one day, when the Constitutional Court abolished a constitutional amendment abolishing the Constitutional Court.

Melčák and his lawyer, Jan Kalvoda, argue, however, that the one-time amendment calling for early elections violates the spirit of the Constitution, because the Constitution can be lawfully amended only by amendments that establish a legal framework for permanent use. Since the Constitution already describes three possibilities for dissolving the Chamber of Deputies early, Melčák would not have lodged a complaint, had one of those reasons been used as justification. A special amendment supposedly circumvents the Constitution and, in doing so, violates Melčák's rights.

Leaders of major political parties and President Václav Klaus reacted to the court's temporary suspension of the elections with strong statements. Klaus called the decision "unprecedented" and "a manifestation of activism." The main argument used against the court was that it possibly exceeded its powers and ignored public interests.

The court, in fact, merely did what is fully in its right: It announced that it will take up Melčák's complaint and, in doing so, will need time to study and prepare its ruling. Later, the court announced it will rule on the complaint most likely Sept. 10, after a public hearing.

In other words, the brewing constitutional crisis was caused predominantly by politicians who, several months ago, opted for an amendment for one use only, rather than adopting an amendment that would supplement the three existing rationales for dissolving the Chamber of Deputies early, and could be used in the future. They did so despite the fact that constitutional experts had expressed strong reservations about what they saw as a travesty of the Constitution, when the political elite used the same constitutional procedure to reach early elections in 1998.

Political parties are justifiably worried about a possible postponement of the early elections, since they have already invested millions of crowns into their electoral campaigns. If the elections were, in the end, postponed by just a few days, financial losses would not be huge. However, if the early elections, planned for Oct. 9-10, were completely canceled and the process leading to early elections started anew, small parties, in particular, could be financially devastated, as some of them took out large loans from banks to finance their campaigns.

Although politicians spoke about public interests when they criticized the Constitutional Court ruling, they were equally concerned about the impact of a possible postponement of the election on party finances. This is one of the reasons the leaders of the largest political parties - who are rarely able to agree on anything of substance - quickly reached an agreement during a meeting with Klaus, held only one day after the court's ruling, that they would try to prepare a new constitutional amendment that would anchor in the Constitution permanently a new way of dissolving the Chamber of Deputies and calling early elections.

Legal experts representing the largest parties were given a few days to work out details; however, the contours of the new amendment are already clear. They are based on the existing draft constitutional amendment that was prepared a few years back by the Senate and which politicians decided to ignore a few months ago when they opted for the solution that is now challenged in the Constitutional Court. Under the Senate proposal, the Chamber of Deputies could ask the president to dissolve it early and call early elections if three-fifths of deputies support the motion.

In order to be capable of organizing the early elections either Oct. 9-10 - or a few weeks later, at worst - the party leaders and the president agreed that a new constitutional amendment should be passed within a week or so.

This decision, however, has angered some constitutional experts, including the lawyer representing Melčák, who said that he would undoubtedly lodge a new complaint with the Constitutional Court. Although he could probably not claim this new constitutional amendment is unconstitutional, Kalvoda is prepared to argue it violates the spirit of the Constitution by shortening the discussion about the new amendment to a mere week.

Two aspects of the current political crisis appear as the most worrisome. First, given the weakness of Czech political elites, there is some potential for the political tug-of-war that erupted after the court's decision to escalate into a full-blown constitutional crisis. This could happen, for example, if the Constitutional Court rules the constitutional amendment challenged by Melčák is unconstitutional, at which point leading politicians would refuse to respect the court's decision. Alternatively, a real crisis could erupt if politicians accepted the court's ruling on the one-time amendment, but would oppose a challenge that Melčák's lawyer promised to launch against a new constitutional amendment that politicians are hastily trying to pass.

Second, in reacting to the Constitutional Court's ruling, politicians showed almost no respect for the division of powers in a democratic state. This does set a good precedent.

Moreover, some politicians do not mind manifesting double standards. When Klaus accuses the Constitutional Court of activism and unprecedented decision-making, he conveniently forgets his own, rather unprecedented, activism in refusing to ratify the Lisbon Treaty.

While the Constitutional Court so far merely suspended the preparations for elections by 10 days so that it could prepare arguments against or in favor of Melčák's complaint, the president refuses to ratify the Lisbon Treaty partly because he has been for several months allegedly waiting not only for the results of the repeated referendum in Ireland but also for the Constitutional Court's ruling on a constitutional challenge to the Lisbon Treaty by a group of senators from the Civic Democratic Party - which, however, has not even yet been formulated.

In this context, one can argue the looming constitutional crisis may have some positive aspects, as well. It may clarify the limits of politicians' power vis-a-vis the judiciary. And, in the end, it may set a useful precedent, which will warn politicians in the future against treating the Constitution as a mere piece of paper that can be changed at will to suit the monetary needs of the most powerful political leaders in the country.

- The author is the former chief political adviser to President Václav Havel. He is now director of New York University in Prague.

Jiří Pehe can be reached at
features@praguepost.com