Appointing a government under the shadow of an institutional controversy over the role of the president

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February 27, 2014

On 29 January at Prague Castle, Bohuslav Sobotka’s government was appointed by President Miloš Zeman. Bohuslav Sobotka, chairman of the ČSSD (Czech Social Democratic Party), is the eleventh prime minister of the independent Czech Republic and heads its thirteenth government, which replaced the “presidential” government of Prime Minister Jiří Rusnok, who was appointed in July 2013. Already at the beginning of his term as prime minister, the Social Democrats’ chairman holds the Czech record for time spent waiting for his appointment – 95 days. This was two days longer than Mirek Topolánek’s 93 days between the date of elections and the appointment of a government. Although this is the longest period between elections and the appointment of a government in the Czech Republic’s history, the processes of forming governments in the neighbouring countries of Austria and Germany, where elections were also held in 2013, were similarly lengthy.

According to the wording of the Czech constitution, it is the president who appoints and dismisses the head of government and ministers. First, the head of state appoints a prime minister, who then recommends to the president specific candidates to head ministries. Once the entire government has been appointed, a period of 30 days begins during which the new government must stand before the Chamber of Deputies and request a vote of confidence. If the government does not win the vote of confidence, it must tender its resignation, and the president will have a second attempt to appoint a prime minister. The duration of the selection period is not specified precisely in the constitution. In the event of a second unsuccessful attempt, a third attempt is placed in the hands of the chairman of the Chamber of Deputies.

The Czech constitution does not address the process of appointing a prime minister and government in greater detail, and thereby creates space for various interpretations. Fundamentally, this always involves a dispute over the character of the office of the president in the Czech political system between a role as the state’s “highest civil servant” and that of an active president with his own autonomy; Czech presidents have always resisted the former role. In the language of political science, we can speak of the difference between the logic of a parliamentary system and that of a semi-presidential one.

Prior to appointing the prime minister, the head of state must make two decisions which are not at all addressed in the constitution and lie in the realm of constitutional customs, since the appointment of a prime minister is preceded by tasking a specific politician with negotiating the formation of a government. According to the constitution, no representative of political parties in the Chamber of Deputies needs to be tasked by the president to negotiate the formation of a government. Nevertheless, this custom is accepted and respected by the head of state and by members of the Chamber of Deputies. In political science, this position is called a formateur. With one exception in 2010, the chairman of the winning party has always been appointed the formateur. The Czech tradition of the right to form a government differs e.g. from the Anglo-Saxon one, according to which this right is enjoyed by the winner of the elections regardless of whether a majority was obtained in Parliament. The rule conferring to the chairman of the winning party the first attempt to form a government can be violated if it is evident that there exists a different majority. This exception occurred in 2010, when the victorious Social Democrats did not have the opportunity to take advantage of the first attempt; this went instead to Petr Nečas, chairman of the ODS (Civic Democratic Party), the second-strongest party. In connection with appointing a prime minister after the early elections in 2013, President Miloš Zeman came up with a new variant – appointing a representative of the winning party, not its chairman. This minor change of two words was widely perceived as opening the possibility of not tasking Bohuslav Sobotka with the role of formateur and subsequently appointing him prime minister.

Despite initial uncertainties, however, Bohuslav Sobotka was ultimately tasked with forming a government at the end of November – nearly a month after the elections. This step was facilitated by a decision on the part of the ČSSD’s Central Executive Committee unequivocally confirming its chairman’s mandate to negotiate the formation of a government and ending disputes among Social Democrats, as well as the unified position of ČSSD, ANO (movement ANO) and KDU-ČSL (Christian Democrats), and the lack of any other majority. As the formateur, Bohuslav Sobotka received from President Zeman the condition of finding a stable majority of more than 101 MPs for his government. Even though the ČSSD and its coalition partners have a comfortable majority of 111 MPs, the condition placed upon Bohuslav Sobotka by the head of state brings us back onto the thin ice of varying interpretations of the constitution. It is questionable whether the president has the right to impose such conditions when under the constitution a simple majority – i.e. 101 votes – is sufficient to obtain a majority in the lower chamber of Parliament. Here, too, President Miloš Zeman is following in his predecessors’ footsteps. In 2004, President Václav Klaus demanded that Stanislav Gross provide 101 signatures of coalition MPs as a guarantee of a majority in the Chamber of Deputies, and in so doing overstepped his authority as head of state.

Just as onerous as the process of tasking the formateur and appointing the prime minister was the selection of individual ministers. Under the Czech constitution, the president appoints ministers upon the recommendation of the prime minister. Here, too, there is no agreement on the president’s role. On one hand we have the president as merely exercising the prime minister’s recommendation. With some exaggeration, constitutional lawyer Jan Kysela muses that is possible to reject a candidate for minister only if he or she is “a cannibal or illiterate”. On the other hand, we have an autonomous decision by the head of state on whether to accept the recommendation. Miloš Zeman’s assertion that “a recommendation isn’t something that you automatically have to accept” is an unequivocal endorsement of the latter – and we may also say traditional – approach taken by Czech presidents. According to his interpretation, the president is even responsible for the final shape of the Cabinet. The appointment of ministers is related to the second condition set by President Zeman: passage of the Service Act in the Chamber of Deputies in the first reading. This condition is linked to the problem of obtaining a negative lustration attestation for Andrej Babiš, who faces accusations of having collaborated with the Communist-era secret police. A court case on this matter is ongoing in Slovakia, and it is not possible to issue a negative lustration attestation to ANO’s chairman. Hitherto, this has been a condition for appointment to the office of minister. Approval of the Service Act, which has been valid for eleven years but has not entered into force due to its postponement, would separate civil service functions from political ones, thereby eliminating the rationale for ministers to have lustration attestations; today, the political function of the minister and the civil service position of head of the ministry are connected. Moreover, the participation of ANO’s chairman was of key importance to ensure support for the government, as ANO had previously announced that a government without the participation of its chairman would be unthinkable. This legally not-too-synoptic situation is related to the absence of the mentioned Service Act and also to the existence of a strict and in the context of Central Europe exceptional Lustration Act.

Despite the controversial nature of the presidential conditions and the unusual solution in the form of passage of the Service Act in the first reading, which does not entail its automatic success in the legislative process, all requirements were met. The head of state gradually accepted individual candidates as ministers with various portfolios, and ultimately – despite his previous objections – appointed the government after a record 95 days from the elections on 25 and 26 October 2013. From the date of its appointment, the government has 30 days to secure a vote of confidence in the Chamber of Deputies.

Sobotka’s government is composed of 17 ministers (8 for the ČSSD, 6 for ANO and 3 for the KDU-ČSL). In contrast to previous governments, it includes the posts of Minister for Human Rights, Equal Opportunity and Legislation (Jiří Dienstbier, ČSSD) and Deputy Prime Minister for Science, Research and Innovation (Pavel Bělobrádek, KDU-ČSL). With respect to the representation of men and women, there are 14 men and 3 women in the government (2 for ANO and 1 for the ČSSD). See the table for the proportional representation of parties in the government and in the Chamber of Deputies, including the representation of men and women.

With respect to the period of forming a government after elections, Václav Havel was the fastest at appointing heads of government and ministers – 33 days (1996), 32 days (1998) and 30 days (2002). His successor, Václav Klaus, appointed one government in 2006 after 93 days and one in 2010 after 45 days. The long period of forming a government in 2006 was caused by the absence of a clear majority in the lower house of Parliament. The average is thus 55 days for forming a government, where four processes of forming a government in one to one-and-a-half months are complemented by two longer three-month processes. There have been negotiations on forming more governments since 1996, but negotiating the formation of a government immediately after elections and negotiating the formation of a government after the previous government’s resignation are qualitatively different processes. Governments formed after the previous government’s resignation took shape in 37.5 days on average. The shortest transition between governments was 0 days, when Stanislav Gross’s government resigned and Jiří Paroubek’s government was appointed on the same day. By contrast, Mirek Topolánek needed the greatest number of days to form a government – 90. This was a unique situation, however, because the head of the resigning government and the formateur were the same person. The notional ranking of government formation is led by Mirek Topolánek: in total, 183 days were necessary to form his two governments. If we look at the greatest number of days during which a government was negotiated among European states, the top position is held by Belgium with 541 days following the 2010 elections.

Along with Czech voters, German and Austrian citizens went to the polls in 2013 as well. Both elections resulted in grand coalitions and no-less-lengthy post-election negotiation processes – 78 days in Austria and 86 days in Germany. According to calculations by Philipp Köker [1]these were longer-than-average negotiation periods. The average period needed to form governments in Germany between 1945 and 2009 is just under 40 days; in Austria during the same period this figure is 55 days.

In Germany, Angela Merkel won an almost-absolute majority of seats in the Bundestag, but lost her coalition partner, the FDP, which dropped out of Germany’s lower house altogether. Coalitions were possible with the Greens and with the Social Democratic Party (SPD). The Social Democrats’ initial unwillingness to enter government was caused, among other things, by the inauspicious memory of the grand coalition from 2005 until 2009, after which the party lost more than ten percent of voters. Negotiations on the programme and the staging of a party-internal referendum in the SPD caused the formation of the government to drag on for the already-mentioned 86 days. Under the German constitution, the president recommends a candidate for prime minister to the Bundestag. This has always been the chairman of the winning party. If the Bundestag does not confirm the candidate, it has 14 days to nominate another candidate. If a prime minister is not chosen by absolute majority even then, the head of state has one week to appoint the unsuccessful candidate or to dissolve the chamber. Unlike its Czech counterpart, the German constitution, except for the first nomination, imposes clear time limits. Moreover, the role of the president in appointing the head of government and ministers is very formal and symbolic.

The Austrian elections resulted in a weakening of both traditionally large parties, the Social Democrats and the Christian Democrats, and their worst-ever joint showing of 50 percent. Austria has a long tradition of grand coalitions where the two strongest parties have garnered as much as 90 percent of votes. Despite the fact that under the Austrian constitution the president has more authority then his German counterpart, his role in the process of appointing governments is also predominantly formal. The president appoints a prime minister who has always – with one exception in 1999 – been the chairman of the strongest party, and on the latter’s recommendation ministers. The government then “introduces” itself in Parliament, where, however, there is no vote of confidence as in the Czech Republic, although Parliament may give the government a vote of no confidence during its term of office.

While the periods required to form governments in the three countries did not differ much from one another, the processes themselves were quite different. In contrast to Austria and Germany, the Czech president exercised much greater influence on the formation of the government, and the entire process was clouded by an institutional controversy over the role of the head of state. There is still no broad consensus about the procedure for appointing a head of government and ministers in the Czech Republic, and a process that should be virtually automatic has become the subject of political disputes. In order to explain them, it is necessary to observe the perception of the role of the president by a specific head of state, his relationship with the future prime minister, whether he is a member of the same party and the same fraction within it, as well as the election result and the distribution of seats. Strong and unified governing coalitions will have greater success at implementing their will against the will of the president.

Štěpán Drahokoupil is a doctoral student in the Department of Political Science at Charles University. He graduated in political science from Charles University and his research focus is comparative political science, specifically political systems and the theory of democratic, hybrid and undemocratic regimes.

 

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