PEOPLE VS POWER / TNP SUMMER 2011 What Can be Changed? The introduction of direct presidential elections is, from the perspective of standard constitutional engineering, a tool for solving or achieving something. Typically, it could be a reform of the governing system, in which the president s role will be amended and strengthened, creating a presidentarbitrator who solves disputes between constitutional organizations. In this case, the president ought to have the right to dismiss the parliament in more circumstances than is presently allowed. It is also possible that the point of direct presidential elections is merely direct presidential elections the path and the aim are the same. In this case we must minimize the risks connected with direct presidential elections. The power to grant individual pardons should be approved by other people in government and the appointment of the council of the Czech National Bank should always be approved by the Senate, as a body not connected with the government and as a body uninterested in a specific form of authority at the National Bank. The president should be legally responsible for more than just treason (for example, severe breach of constitutional order). Additionally, we should consider his potential dismissal due to political dissatisfaction. Again, this brings us back to the question: what sort of a president do we want, and what do we want him for?
PEOPLE VS POWER / TNP SUMMER 2011 Direct Presidential Elections in Slovakia An Inspiration for the Czech Republic? Petr Just In the past few months direct presidential elections have again appeared on the Czech political agenda. As when discussed in the past, Slovakia is cited as an example of good practice. Slovakia switched to a direct system more than ten years ago. Let us put aside the advantages and disadvantages of directly elected presidents and let us focus on the specific case of Slovakia. The need to introduce direct presidential elections was not based on a mere desire to strengthen direct democracy. The change was motivated purely by pragmatics in response to the political disorder Slovakia experienced in 1994-1998, which was especially apparent during the presidential elections in 1998. The Slovak experience can be a useful addition to the political discourse regarding direct presidential elections in the Czech Republic. The Struggle for Direct Elections The first Slovak president, Michal Kováč, elected by the parliament at the beginning of 1993 as a candidate for the governing HZDS (The People s Party, Ľudová strana Hnutie za demokratické Slovensko), left the presidential palace on 2 March 1998. The political situation left behind was tense and tumultuous, aggravated by a series of ineffective or cancelled referendums regarding the future selection of Slovakia s
head of state. At this time, Kováč was one of the biggest supporters of direct presidential elections. He, however, saw it as a tool to weaken, or perhaps even remove, the then current Prime Minister Vladimír Mečiar from power. His support for direct elections was most apparent during his last year as president, when he spoke about the benefits of direct elections on a regular basis in the media. I would like to emphasize that it is essential for our country and our future to strengthen the independence of the president by allowing the public to elect him directly, Kováč said during his New Years speech in 1997. At this time, disputes between him and Mečiar were commonplace. Kováč was worried that he would have to pass his presidential authority to Mečiar, who would, according to the constitution, become the head of state until the office was again filled. Direct elections will ensure that once the president s term is over, the position will be immediately filled again, Kováč explained during the same speech. Kováč prophesized that following his departure, the parliament would fail to chose a president, and as it turned out he was right: As we know, the current set-up of the parliament, the permanent inability of the coalition and opposition to agree on anything simply does not guarantee that the president will be elected by the parliament on time. In 1998, a 3/5 constitutional majority of all parliament members (90 votes) was necessary to elect the president of Slovakia. The two most successful candidates continued to the second round, and again 3/5 of all votes were needed to select the winner. The governing coalition only had a simple majority and as President Kováč predicted, the coalition and opposition failed to agree on a candidate. The combination of a strict Slovak President Kováč. This image is in the public domain. constitutional condition, practical separation of
political powers within the parliament, and their inability to cooperate significantly reduced the chances of them ever electing a head of state. The First Attempt at Direct Presidential Elections Many took heed of the president s New Year speech and during the first three months of 1997 the Petition Committee for Direct Elections collected 440 thousand signatures in support of the change. The government issued a referendum on the basis of the petition, but the referendum was purposely spoiled. To create the referendum, Mečiar s cabinet adopted a resolution that ordered Minister of the Interior Gustáv Krajči to print and distribute tickets only with three questions, which asked about Slovakia s admission into NATO. The direct presidential elections question was left out. Ivan Šimko (Member of Parliament (MP) from the Christian Democratic Movement) turned to the constitutional court and questioned the Ministry of the Interior s conduct. President Kováč also asked the constitutional court for an interpretation of the constitution in relation to the government s resolution, which did not address the petition and concerns of the citizens. In both cases the court ruled in favor of the Ministry. The president and a group of opposition MPs asked the head of the National Council of the Slovak Republic, Ivan Gašparovič (HZDS), to declare another referendum. Gašparovič refused to do so stating that the legality of the original petition must be reviewed. As a result the second referendum never took place. In the meantime, Slovak lawmakers prepared for parliamentary elections for the head of state. It was, however, unsuccessful. None of the proposed candidates received the necessary constitutional majority. Otto Tomeček (the HZDS candidate), the former rector of the Matej Bel University, Banska Bystrica, was the closest to being elected during the fifth attempt to elect a president on 9 July 1998. In every round he received 86 votes. The fifth round was also declared the last and no one
was nominated further. Additional rounds were always announced in accordance with the law, but no candidate was proposed in any of them. Instead, all political parties focused on the upcoming parliamentary elections, which could lead to the selection of a head of state either the new parliament would be able to agree on a candidate and actually elect a head of state, or the new parliamentary set-up could make a change in the constitution and therefore change the way the president was elected. Both of these options required a constitutional majority. Parliamentary Election brings Change The strongest political party and formal winner of the 1998 elections HZDS did not mention direct presidential elections in their party platform, even though it supported the change in its previous declarations. The SDL (the Party of the Democratic Left, Strana demokratickej ľavice) also did not have direct presidential elections in their program; although some of its representatives repeatedly stated during the election period that they too supported the change. The SNS (Slovak National Party, Slovenská národná strana) considered the question of direct elections as practically a taboo. On the other hand the Democratic Coalition Party (SDK a group of 5 opposition parties KDH, DS, DÚ, SDSS and SZS) openly declared their desire to change the electoral system. In 1994-1998 it was the politicians from these parties who had attempted to change the electoral system to a direct one. The SOP (Party for Civic Reconciliation) and SMK (Party of the Hungarian Coalition) also declared their desire to change the election of the head of state in their party programs. After the elections a SDK-SDL-SMK-SOP coalition was formed. In a 150 member parliament it had a 93 vote constitutional majority. Therefore, theoretically, it was possible to achieve a constitutional majority and make a change to the constitution. Aside from the SDL, the other coalition parties had direct elections in their party
program. As stated above, the SDL did not reject the idea either. The constitutional majority also allowed the governing coalition to choose its candidate in a parliamentary presidential election. This option was rejected, because the coalition was not 100 percent certain that all the 93 MPs would vote for a common candidate in the anonymous election. Additionally, the smallest coalition partner, the SOP, demanded in the coalition agreement that their party leader, Rudolf Schuster, would be the common presidential candidate of the coalition, which was in turn rejected by the KDH (Christian Democratic Movement) representatives. The governing coalition parties consequently decided that they would introduce direct presidential elections, as promised in their campaign platforms. All 93 coalition parliament members voted in Flag of the President of Slovakia. This image is in the public domain. favor of the proposal to change the constitution on 14 January 1999. Only Ivan Hudec from the HZDS voted against the proposal, 11 opposition MPs abstained and 42 were registered as not present. By comparison with the 1998 parliamentary presidential election, the debate on the constitutional change was surprisingly calm and smooth. Only two opposition MPs joined the discussion Ján Cuper from the HZDS and Josef Prokeš from the SNS. Prokeš proposed that Slovakia abolish the position of the president altogether: The society and the state can exist very well even without a president. His tasks can be easily divided between the head of government and the parliament, he said during the proposal debate.
Cuper suggested two changes. The first asked for the constitution to include a paragraph about the political independence of the head of state, and the second involved lowering the candidate s age from 40 to 35 years. Neither of his proposals was passed. Constitutional Amendment and the Adoption of New Presidental Election Legistlation The change in the method of presidential elections not only affected the individual articles of the constitution, but also required specific legislation related to the election of the head of state by the people, and dismissal of the president by the people as well (legislation no. 46/1999 Sb.). The legislation includes detailed technical and organizational parameters for the application of direct elections (as well as direct dismissal) for the head of state. The parliament passed the proposal on 18 March 1998, two months after the constitutional amendment. Since 1999 the Slovak president is elected by the people in direct anonymous elections. His mandate is for 5 years and no one can be elected for more than two consecutive terms. Candidates can be proposed by groups of 15 or more MPs or by citizens themselves through petitions signed by at least 15 thousand eligible voters. The two-round electoral system with a closed second round was also adopted for the election of the Slovak president, although it has one significant difference in comparison with the election of Czech senators or French or Polish presidents. In the first round, the candidate with the majority of votes from all eligible voters becomes president. But unlike in the Czech senate elections, where only the majority of votes cast is enough for election in the first round, the majority for Slovak president is calculated taking all the people who are eligible to vote on that day into account (not just those that did vote). If no candidate receives the necessary majority, in 14 days another round takes place, which is only entered by the two most successful
candidates from the first round. In the second round the candidate with the most votes wins. If one of the candidates cannot take part in the second round for whatever reason (resignation, death etc.) the third in line takes his place. If there is just one candidate, only one round is necessary for election, provided he receives a majority of the eligible votes. The Slovak president is not only elected by the people, but can also be dismissed by the people. The head of the parliament can propose the people s vote, provided 2/3 of the parliament (at least 90 votes) agrees. If more than half of the eligible voters vote in favor of the dismissal, the mandate of the president is over and new elections are held. Additionally, if the president survives the vote, according to the constitution, he begins a new 5-year term. That means if the people decide to keep the president, it is perceived as a re-election and at the same time expression of noconfidence in the parliament. The amendment to the constitution also included some changes to the president s powers. Since 1999 the president has to name or dismiss a member of the government on the basis of the prime minister s proposal. This particular point was not clear in the constitution previously. The president also needs the prime minister s approval when appointing ambassadors, declaring amnesty and making decisions as the head of the armed forces. Newly, the president has a right to dissolve the parliament in the case that it does not pass legislation proposal related to a vote of no-confidence within three months, or in the case the parliament is unable to assemble for more than three months. Amendments also include the president s ability to return legislation back to the parliament. Since the constitutional change, a majority of all MPs is necessary to overrule a president s veto. Previously, it was a majority of MPs present at the time. Finally, the president lost his right to veto legislation related to the constitution.
Direct Elections in Practice There have been three direct presidential elections in Slovakia in 1999, 2004 and 2009. The first elections in 1999 were based on the de-mečiarisation of Slovak politics. Vladimír Mečiar did, however, enter the election race at the last minute and even advanced to the second round. He was defeated by the coalition candidate, Rudolf Schuster (SOP). The second direct elections in 2004 ended with the surprising advancement of Ivan Gašparovič into the second round together with Vladimír Mečiar. Pre-election polls favored the former foreign minister Eduard Kukan (SDKÚ, the Slovak Democratic and Christian Union), who came in third in the race. However, Gašparovič received support from the SMĚR party (SMĚR, Direction Social Democracy, did not have its own candidate), which turned out to be a major factor in his success. Another factor leading to his election win was his opponent Mečiar a factor Gašparovič was not shy to use during his campaign, as well as his well chosen populist political tagline, I think nationally and I feel socially. The first presidential elections without Mečiar took place in 2009. Gašparovič, again with the support of SMĚR, was challenged by a right wing candidate, Iveta Radičová (SDKÚ). She was defeated by Gašparovič in the second round; however, the presidential election could be viewed as a potential test of cooperation for right wing political parties. The parties that nominated Radičová formed the governing coalition a year later. Coincidently, Radičová became the prime minister. Conclusion The introduction of direct presidential elections in 1999 saved Slovakia from a political deadlock, created by the division of political power and inability of political parties to agree on a suitable presidential candidate. The governments
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