Tomio Okamura (SPD) shared a post on Facebook in support of presidential candidate Jaroslav Bašta. According to Okamura, he is the only candidate who will “revoke Fial’s rule” after his election. This is evidenced by the statement of constitutional lawyer Jan Kudrna. The iROZHLAS.cz server contacted the lawyer, but he stated that his statement was taken out of its original context. On the contrary, he agrees with other experts on constitutional law that the president may dismiss the government only in certain cases.
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6:20 am January 4, 2023
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Jaroslav Bašta would like to dismiss the government of Petr Fiala after his election. But according to constitutional lawyers, this is not possible Photo: Zuzana Jarolímková | Source: iROZHLAS collage
“SPD presidential candidate Jaroslav Bašta was the only one to say that if elected, he would dismiss Fial’s government. Support Jaroslav Bašta! None of the other candidates, including Andrej Babiš, wants to dismiss Fial’s government,” MP and chairman of the SPD movement Tomio Okamura wrote on his Facebook profile.
Jaroslav Bašta confirmed to iROZHLAS.cz that he plans to keep his promise. According to him, “his lawyers” confirmed to him that he would have this competence as president. At the same time, he appointed Zdeňko Koudelka, who ran for the Senate in the tricolor coalition of Trikolor, SPD and Moravians, Pavel Hassenkopf or Jan Kudrna.
The nine-year-old statement of the last-named lawyer also supports Okamura’s argument.
The iROZHLAS.cz server contacted the lawyer. According to him, however, the statement is taken out of context and, according to him, it is clear that the president cannot dismiss the government of his own free will.
“It is a power that the president can use only as a last resort. He can’t do it just because he thinks it politically, that he personally doesn’t like a particular prime minister or government,” constitutional lawyer Kudrna Okamura contradicts Okamura’s post, saying that the meaning of his words is distorted.
“If Mr. Bašta says that when he becomes president, he will overthrow the government, he is promising unconstitutional actions. And to such a degree of seriousness that it can be described as something that is at least close to a coup. If a constitutional actor in the role of the president of the republic were to overthrow a government that relies on the will of the House of Representatives, that relies on the will of the voters, how else do you want to describe it?”
Jan Kysela (constitutional lawyer)
However, Okamura did not comment on the fact that Kudrna distanced himself from his interpretation of the quote. He claims that Bašta has the right to take a similar step.
“We are fully convinced that Article 62 of the Constitution speaks very clearly. It is clearly written there that the president appoints and dismisses the chairman and other members of the government,dismisses the government and accepts its resignation. The article speaks quite clearly, it is not conditioned by any reference to those articles that speak about the competences of the government. And from the point of view of the government’s legitimacy, this step is in accordance with the Constitution,” Okamura said, adding that in case of disagreement, those concerned could turn to the Constitutional Court.
‘Promises unconstitutional action’
However, constitutional lawyer Jan Kysela disagrees with this, according to whom the president simply does not have the authority to arbitrarily dismiss the government.
“Article 75 states that the president of the republic will dismiss the government that does not resign, although it was obliged to do so. And thus his authority is exhausted. He does not have the power to dismiss the government in situations other than those described here.”
Marek Antos (constitutional lawyer)
“If Mr. Bašta says that when he becomes president, he will overthrow the government, he is promising unconstitutional actions. And to such a degree of seriousness that it can be described as something that is at least close to a coup. If a constitutional actor in the role of president of the republic were to overthrow a government that relies on the will of the House of Representatives, which relies on the will of the voters, how else do you want to describe it?” he responded to a question from the iROZHLAS.cz server.
As he further explained, the president can only dismiss the government if the government does not submit a so-called “compulsory resignation”. This happens, for example, after parliamentary elections, when new deputies are elected.
“The second type of mandatory resignation occurs when the government has failed in the battle for confidence, i.e. when it asked for confidence and did not receive it or was actively expressed no confidence in it. At the moment when the government does not resign after these two cases, the president of the republic functions as such an unlikely insurance policy, because it is quite unlikely that the government would not do it,” adds Kysela to iROZHLAS.cz.
According to Marko Antoš, head of the Department of Constitutional Law at Charles University, the president cannot arbitrarily dismiss the government.
“It is interesting that even President Zeman led speculation at the beginning of his election period about the extent of his powers and whether he could dismiss the government. And in a kind of arc, it is possible to trace his statement when he was handed a petition for the dismissal of the government and he himself relatively precisely explained to the person handing over the petition why he does not have this authority,” explains Antoš, referring to the September petition of anti-government protesters.
Read the Constitution in its entirety
According to constitutional law experts, it is a fundamental mistake to rely only on Article 62 of the Constitution, where the general competences of the president are enshrined. According to them, on the contrary, the Constitution must be read as a whole, because only other articles determine under what circumstances the president can exercise specific powers.
Jan Kysela is a constitutional lawyer and an expert in the field of political science and political science. He works at the Faculty of Law of Charles University as head of the Department of Political Science and Sociology. He mainly deals with constitutional systems and general political science. In addition to teaching, he works for the Senate Standing Committee on the Constitution of the Czech Republic and parliamentary procedures.
Marek Antos is a constitutional lawyer and also head of the Department of Constitutional Law at Charles University in Prague. He mainly deals with the constitutional problems of the political system, the review of the constitutionality of interventions in social rights, the financing of political parties or elections and the right to vote.
Jan Kudrna is a constitutional lawyer and university teacher. Since 2003, he has been working at the Faculty of Law of Charles University as an assistant professor at the Department of Constitutional Law, and at the same time he also cooperates with the Metropolitan University in Prague.
“Article 62 and 63 is a competence catalog. In order to fully understand what comes from the catalog of competences, you have to leaf through the rest of the Constitution. You will also find there, for example, that the President of the Republic dissolves the Chamber of Deputies, but that does not mean that he dissolves it whenever he says that he does not like the Chamber. You have to turn to article 35, where it is written under what conditions the president can and must dissolve it. And it is the same with the provisions regarding the appointment and dismissal of members of the government,” explains Kysela.
Lawyer Antoš sees the same situation, according to which the powers of the president in appointing and dismissing the government are defined precisely in the section that concerns the government. “Article 75 states that the president of the republic will dismiss the government that does not resign, although it was obliged to do so. And thus his authority is exhausted. He does not have the authority to dismiss the government in situations other than the one described here,” says Antoš.
According to Kysela, a similar “increase” in the powers of the president would lead to a version of a stronger semi-presidential system, which is not in line with the current Czech parliamentary democracy.
“It’s not even in France, only in some African states. The government then depends not only on the parliament, but also on the president. And it is no coincidence that these versions of stronger semi-presidentialism tend to be very unstable, as the president and the parliament can tussle over the government. It leads to various disturbances, coups and coups. From a systemic point of view, it is therefore logical that we do not have it set up this way and that we should not have it this way,” adds Kysela.
Bašta’s candidacy was announced by the SPD movement at the beginning of September, with the fact that he would be nominated by the parliamentary club. He has exactly the necessary twenty legislators, so Bašta had to sign his candidacy himself. Polls so far measure his support below five percent.
Tomas Pika
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