Power Beyond Constitutions: Presidential Constitutional Conventions in Central Europe (Palgrave Studies in Presidential Politics)

This research monograph examines presidential constitutional conventions and the role they play in the political systems of four Central European countries – the Czech Republic, Slovakia, Hungary, and Poland. As primarily unwritten rules of constitutional practice, constitutional conventions represent political arrangements and as such are political in origin. Not only this, constitutional conventions, in general, and presidential constitutional conventions, in particular, have significant political implications. They shape both the everyday operation and character of regimes. Central Europe represents a particularly useful example on which this role of constitutional conventions can be studied and assessed. Foreword 6 Acknowledgements 9 Contents 10 About the Authors 13 Abbreviations 18 List of Tables 19 1 Introduction 20 References 28 2 What Are Presidential Constitutional Conventions? 30 2.1 Constitutional Conventions in Anglo-Saxon Scholarship 31 2.2 Constitutional Conventions in German-Speaking Countries 37 2.3 Constitutional Conventions in the Legal and Constitutional Context of Central European Countries and in Their Scholarship 43 2.3.1 Czech Republic 45 Historical Legal Background 45 Legal and Constitutional Context of the Czech Republic 45 Czech Scholarship on Constitutional Conventions 45 2.3.2 Slovakia 54 Historical Legal Background 54 Legal and Constitutional Context of Slovakia 54 Slovak Scholarship on Constitutional Conventions 54 2.3.3 Hungary 64 Historical Legal Background 64 The Legal and Constitutional Context of Hungary 64 The Contextualisation of the Case Law 64 The Illiberal Turn 64 Hungarian Scholarship on Constitutional Conventions 64 2.3.4 Poland 72 Historical Legal Background 72 Legal and Constitutional Context of Poland 72 Polish Scholarship on Constitutional Conventions 72 2.3.5 Summary 80 2.4 Presidential Constitutional Conventions: Definition and Classification 81 2.4.1 Defining Constitutional Conventions 82 2.4.2 Classification of Constitutional Conventions 88 References 92 3 Presidents in Constitutions 107 3.1 Presidents of Parliamentary Democracies 107 3.2 Czech Republic 109 3.2.1 Position of the Czech President 112 3.2.2 Constitutional Competences 113 Legislative Powers 113 Non-Legislative Competences 113 3.2.3 Constitutional Amendments 117 3.3 Slovakia 120 3.3.1 Position of the Slovak President 122 3.3.2 Constitutional Competences 124 Legislative Powers 124 Non-Legislative Powers 124 3.3.3 Constitutional Amendments 128 3.4 Hungary 134 3.4.1 Position of the Hungarian President 136 3.4.2 Constitutional Competences 138 Legislative Powers 138 Non-Legislative Powers 138 3.4.3 Constitutional Amendments 141 3.5 Poland 142 3.5.1 Position of the Polish President 145 3.5.2 Constitutional Competences 146 Legislative Powers 146 Non-Legislative Powers 146 3.5.3 Constitutional Amendments 150 3.6 Final Remarks 150 References 152 4 Presidential Constitutional Conventions in Central Europe 162 4.1 Presidential Constitutional Conventions in the Czech Republic 163 4.1.1 Relationship with Government 165 Respect for a Parliamentary Majority 165 The President Commissions a Formateur After a Legislative Election 165 Two Prime Ministers at the Same Time 165 Negotiation and Ratification of International Treaties 165 Appointment of a (Vice-)governor of the Czech National Bank 165 The Grey Zone of Constitutional Conventions 165 4.1.2 Relationship with the Parliament 185 Missing Signature of the President Under Laws 185 4.1.3 Relationship with Judiciary 188 Single Vice-Chairperson of the Supreme Court 188 4.1.4 Classification of Constitutional Conventions 190 4.1.5 Summary 196 4.2 Presidential Constitutional Conventions in Slovakia 197 4.2.1 Relationship with Government 199 Respect for a Parliamentary Majority 199 Formateur 199 Timing of Appointment of Prime Minister and Ministers 199 Grey Zone of Constitutional Conventions 199 Is There a Convention that the President Appoints a Representative/leader of the Largest Party as Prime Minister? 199 Is the President Obliged to Commission a Representative of an Extremist Party to Form a Cabinet If It Has Received the Largest Number of Votes/Seats? 199 Is the President Obligated to Appoint Ministers as Proposed by the Prime Minister? 199 4.2.2 Relationship to the National Council 216 4.2.3 Relationship with Judiciary 219 Appointment of General Prosecutor 219 Appointment of the Judges of the Constitutional Court 219 4.2.4 Classification of Constitutional Conventions 223 4.2.5 Summary 229 4.3 Presidential Constitutional Conventions in Hungary 229 4.3.1 Relationships with Government 230 The Appointment of Prime Minister 230 Appointment of Ministers 230 Dissolution of the Cabinet 230 Decorations and Awards 230 4.3.2 Relationship to the National Assembly 237 Initiating Legislation 237 Veto 237 Initiating Referenda 237 Nomination and a Duty to Consult 237 4.3.3 Relationship to the Judiciary 241 Nomination of the President of the Supreme Court 241 Appointment of the Rank and File Judges 241 Mercy 241 4.3.4 Classification of Constitutional Conventions 245 4.3.5 Summary 248 4.4 Presidential Constitutional Conventions in Poland 250 4.4.1 Relationship with Government 251 Appointment of the Prime Minister and the Government 251 Dismissing the Prime Minister and the Government 251 Appointment and Dismissal of Ministers 251 Participation of the President in Government Meetings 251 Unclear or Shared Powers 251 4.4.2 Relationship with Parliament 257 4.4.3 Relationship with Judiciary 259 4.4.4 Other Areas 260 4.4.5 Classification of Constitutional Conventions 261 4.4.6 Summary 264 4.5 Final Remarks 265 References 269 5 Constitutional Conventions and Constitutional Courts 284 5.1 Czech Republic 286 5.1.1 Opening the Door 287 5.1.2 Opening the Door Even Wider (but Differently) 291 5.1.3 Not Entering the Open Door 297 5.1.4 Supreme Administrative Court Entering the Door Instead? 300 5.1.5 Summary 301 5.2 Slovakia 302 5.2.1 Discovering Constitutional Conventions Step-by-Step 304 5.2.2 Active Use of Constitutional Conventions in Reasoning 309 5.2.3 Constitutional Conventions Beyond Appointment Cases? 313 5.2.4 Summary 315 5.3 Final Remarks 316 References 318 6 Conclusion 322 References 329 Index 330