Constitutional Lawyer: Grounds for Clemency Go Against Fundamental Principles of Rule of Law iROZHLAS

The head of the Lány forest administration, Miloš Balák, who was sentenced to three years for influencing a public contract in the Lány game reserve, will be pardoned by President Miloš Zeman. According to the president, the nature of the act was probably not decisive for the condemnation of Balák, but the place where he works. “The reasoning goes against the fundamental principles of the rule of law or the rule of law,” Jan Kysela, a constitutional lawyer at Charles University Law School, told Radiožurnál in an interview.




Conversation
prague

Share on Facebook




Share on Twitter


Share on LinkedIn


Impression



Copy URL address




Abbreviated address





Close




Jan Kysela, Head of Department of Political Science and Sociology, Faculty of Law, Charles University Photo: Věra Luptáková Source: Czech Radio

How do you perceive the reasoning put forward by Miloš Zeman, namely that the nature of the act was probably not decisive for Balák’s conviction, but where he works?
It’s such a pretty word. The word sounds chucpe, which seems quite right to me. If we were to describe it, the reasoning is shocking. If I have to describe it even further, it is reasoning that fundamentally goes against the fundamental principles of the rule of law or the rule of law, which assume that no one is above the law , that we are all equal before the law. And the moment you create a structure, in this case the Office of the President of the Republic, or the district of the President of the Republic, which can commit crimes because he is convicted of these crimes and then pardoned by the from the middle of this structure, it is then difficult to perceive it other than as contrary to the fundamental principles of the rule of law.

Listen to an interview with Jan Kysela, Constitutional Lawyer at Charles University School of Law

If the courts were to rule as the president suggests, depending on where the defendant works and with whom he interacts. What would that mean for law and justice in this country?
It would mean about as much as when Andrej Babiš had been implying for years that his prosecution was not at all related to what he had or hadn’t done, but that Andrej Babiš and everyone else, starting with various structures in the Czech Republic, court, the OLAF Court of Auditors, conspired to oust him.

At a time when a public figure, a politician, invokes such arguments in his procedural defence, he cannot logically undermine the authority of the rule of law, because that gives ordinary citizens the impression that all this is different from what I seem to at first glance. That all this is only an appearance, an illusion, because in fact personal and political ties decide how one likes or dislikes whom.

These are exactly the things senior government officials do they do not have To commit. It seems to me that it is a relatively widespread custom in the world that they do not commit them, that at the moment when significant suspicions adhere to them, they leave the public service in order to be able to defend themselves freely. While, of course, defending yourself and occupying this public office is a suspicion that you are distorting the exercise of public power by being able to influence those who must investigate or even convict you.

The president has the power to pardon anyone and does not have to justify it. But does the law also say that he must not abuse this institute?
The law does not speak, you will not find it in the Constitution or elsewhere. In general, there is probably some institute of abuse of rights, which is nevertheless quite gradually affected by the doctrine, both in the field of public law and private law. Instead, we should probably use more general principles, which we would hide in the notion of a democratic state governed by the rule of law, which the Czech Republic declares in Article 1 of the Constitution. Among other things, the prohibition of arbitrariness derives from the principles of a democratic state governed by the rule of law. And we would probably get there somewhere.


Thanks only to the terminally ill. It’s a feudal relic, Zeman said of his powers in the past

Read the article


An arbitrary exercise of power is one where you don’t really know if it is governed solely by the whims of the executor of that public power. And if we are in a democratic state governed by the rule of law and for public power, these individual actors are responsible for the exercise of public power, whether legally or politically, so they should show the public what considerations they guided why they appointed or did not appoint someone. Why they did or did not veto laws. In short, it must be transparent and well organized, because this is where the democratic rule of law differs from authoritarian regimes, for which the arbitrary, the arbitrary, is a fairly typical defining trait.

If the president defied justice in this way, can justice defend itself?
That’s what I’m afraid of. Probably with the exception of some encroachments on the presidents of the highest courts, the president of the Judicial Union, the president of the Prosecutors’ Union – in short, in a way it is probably possible. Otherwise, it’s probably hard to find a way to achieve this. If that were the case when the President of the Republic forgives himself or the Prime Minister countersigns and the police forgives himself with the help of the President of the Republic, it seems to me that it could be such an excess of public power that we might be able to seek atypical means. I don’t know if we’ll find them here, because it’s terrible, but I don’t think it’s as extreme as being forgiven by the President of the Republic.

Emergency extension

Another event on Tuesday. Throughout the day, MEPs discussed extending the state of emergency. This is the case in the Czech Republic due to the wave of migration from Ukraine. The government coalition wanted to extend it until August 31, the opposition YES for only one month. In addition, the negotiations have been accompanied by disputes over whether the law allows the state of emergency to be extended for more than 30 days. It is possible or not to extend the state of emergency for more than 30 days. There is a clear answer.
It is obvious, at least if you watch the meeting today (Tuesday), that opinions differ. It seems to me that according to the interpretation of the text of the constitutional law on security in the world of common practice and in the light of the object that it has, it seems to me that these 30 days are very easy to read, because if you had these 30 days available lead to undesirable consequences such as the principle of unlimited duration of an emergency with a weakened role of the Chamber of Deputies. So it seems to me that if the government decides on 30 days, then it seems to me that the government should decide on 30 days even after the Chamber of Deputies has given its agreement to this extension. In short, the 30-day rhythm is predefined in the Constitutional Security Act.


It is a demonstration of protectionism. He circumvented democratic principles, politicians criticize Zeman’s mercy

Read the article


It occurred to me that there had been no dispute over this for the past two years. This is why the government has repeatedly asked for an extension of the state of emergency, thus giving the House and the opposition the opportunity to monitor it, to discuss, to present arguments as to why the state should or should not be used or expanded. In this case, it is not a question of knowing whose relation to the Ukrainian crisis is. In this case, it is the procedural construction that can be used for the next time by another government, another chamber, for a completely different purpose.

Does this mean that it is a matter of establishing a narrower?
If we feel that the constitutional infinity law offers more interpretations, which I’m not sure of, and that the current interpretation was based on consistent practice, then as soon as you break it, you can hardly go there refer next time. First, the government will not have enough of these two months, which is quite obvious, so it will still have to come back to the House. So that’s roughly how many months she says, if she feels like she actually has no limits, and if she feels like she has a slanted house, which, for example , will approve it 3, 4, 5, 6, year, hard to say.

But as I say, this is not about someone who liked or disliked the government, liked or disliked the House, he had such and such a relationship with the Ukrainian crisis, but he is about what the Constitutional Security Act implies for today and from how we deal with it today will have consequences and consequences for the future.

Věra Štechrová, zuj

Share on Facebook




Share on Twitter


Share on LinkedIn


Impression



Copy URL address




Abbreviated address





Close




Leave a Comment