As president, Miloš Zeman has repeatedly resisted proposals in the past, which according to standard interpretations of the law should be implemented without hesitation. He was unwilling to name several appointed professors and twice refused to name ministerial candidates for the Social Democrats. Now he wants to follow. According to speculation – which however has not been confirmed by either Zeman, Fiala or any of the proposed ministers – the appointment of Jan Lipavský as Foreign Minister does not suit him.
However, most constitutional experts approached by Czech television are convinced that the president should appoint the proposed candidate. “The president has no responsibility to the government. She is responsible to the Chamber of Deputies. This implies the obligation to appoint a president,” says Marek Antoš, head of the Department of Constitutional Law at the Faculty of law from Charles University. According to Jan Wintr from the same faculty, the president can reject the nominated candidate, but only if “there is a legal impediment to why he cannot be a minister, perhaps due to of a conflict of interest”. So not in the event of a disagreement, as in the case of Lipavsky.
However, Zeman also found support among constitutional law experts. For example, Aleš Gerloch, head of the Department of Legal Theory and Legal Education at the Faculty of Law of Charles University – a lawyer whom the current president unsuccessfully appointed some time ago to the post of constitutional judge – is convinced that there is no clear order for the Head of State to grant the appointment.
“(The President) has independent powers and is limited by the fact that he does not form the government himself, but appoints the Prime Minister completely independently and on his proposal the other members of the government. But he is not not bound by the proposal,” Gerloch said.
The dispute can be decided by the Constitutional Court, it would take weeks
However, the attitudes of the institute’s experts are not binding on politicians. If Fiala and Zeman cannot find common ground, their dispute would have to be resolved by the constitutional judges – if the prime minister takes legal action. However, this would further delay the already protracted change of government.
“If a proposal for jurisdiction was submitted to the Constitutional Court and the Constitutional Court wanted to discuss it on the merits, I believe that they would discuss it on a priority basis. And if the Constitutional Court really approaches this question as a question that deserves examination priority, there is no fundamental reason why it cannot be decided in a few weeks”, underlined the possible time horizon for such a dispute, the constitutionalist Ladislav Vyhnánek of the Department of Constitutional Law and the Faculty of political science law, Masaryk University of Brno.
The political scientist of the CEVRO Institute Petr Sokol – who is also a member of the ODS, that is to say one of the parties of the new coalition – believes that a trial would not be ruled out. “In the long term, it will be good if once and for all – or at least for a longer period – the decision of the Constitutional Court shows what it is. If it was not covid and it was not necessary for the government to change quickly, also because it is politically completely different from the previous one, then it would be logical for it to be done. In this situation, the responsibility will fall to the president, ”said Sokol in the program 90′ ČT24.
He considers that the dispute over the nomination of the proposed candidates for ministers is crucial for the Czech constitutional environment. “What we are describing is the struggle for the character of the Czech political system. “If we move to a semi-presidential system, where the president fundamentally influences the government or has more of a say in foreign policy than the other ministries, or if we stay with the parliamentary republic, where voters determine the government through elections to the Chamber of Deputies,” he said.
However, according to a political scientist from the Faculty of Law of the University of West Bohemia and the University of Newton, Lukáš Valeš, the delay would not have happened even if the dispute had reached the Constitutional Court. He can imagine a government, but it will not be complete. “Based on previous experience, it may happen that the President appoints a government in one name and appoints a member of the government to act as Minister of Foreign Affairs. Then the Prime Minister, Professor Fiala, will likely turn to the Constitutional Court with a jurisdictional trial and wait what happens next,” he stressed.
He does not think that Miloš Zeman wants to delay the change of government. As proof, he considers that the president has appointed a new prime minister and started meeting ministerial candidates, even though he has tested positive for coronavirus and is in isolation. “He doesn’t want to delay the appointment of the government as a whole, he doesn’t want to significantly extend the mandate of Andrei Babis (YES). The president would behave significantly differently,” Valeš believes.
Political scientists believe that Zeman’s objections to Jan Lipavsky – if they are really aimed at him – are not completely unfounded. According to Valeš, Lipavský is “neither charismatic nor too good a rhetorician”, he does not have enough political or professional experience. Petr Sokol remarked that the president “attacks whoever is the weakest in the coalition, it is not necessary there”.
“The president appoints the government on the proposal of the prime minister, there is nothing to discuss”, they said 23 years ago
Although Miloš Zeman is the only president who managed to offer his reservations about the proposed candidates that other people the CSSD had initially requested in 2018 and 2019 sat in the ministries of foreign affairs and culture, he is not the only one to have reservations about the Prime Ministers’ proposals. In 2005, after heated verbal skirmishes, Václav Klaus appointed David Rath to Paroubek’s government, and Václav Havel appointed Zeman’s cabinet in 1998, along with Jan Kavan and Václav Grulich, about whom he had reservations.
Zeman himself clearly denied that this was not the case at the time. “Article 68 of the constitution is very clear: the president appoints the government on the proposal of the prime minister. So I think there is nothing to discuss. In short, the social democrats will decide who will be in the government of social democracy,” he said in an interview with Mladá fronta Dnes towards Havel.
While Zeman’s government was appointed one month and three days after the elections, this year almost two months have passed since the elections won by the SPOLO coalition (ODS, KDU-ČSL and TOP 09) and, with the PirátiSTAN coalition, which won a majority in the Chamber of Deputies. The former YES and CSSD governments are still in power, although they resigned in early November.
Last Sunday in November, the president appointed Petr Fiala as the new prime minister and then began talks with all the ministerial candidates nominated by Fiala. They should end on Friday. Subsequently, Zeman wants to meet Fiala. If they find a solution to the situation around Lipavský, the government as a whole could be appointed and then take power in mid-December.