Seeking Revenge

Following the breakthrough verdict of the Constitutional Court on 10 September concerning the now-cancelled early elections, politicians are increasingly and more fiercely calling for the tribunal's powers to be curbed. They are already hatching their first plans.

"The moment when it becomes necessary to adopt a new definition of the Constitutional Court's authority is nearing," President Václav Klaus said of the court's verdict immediately after it was made public. ČSSD chairman Jiří Paroubek opined along the same lines. The matter is not a trivial one, though. Given that political influence has engulfed other institutions such as the Supreme Audit Office and the antimonopoly office, tribunals – the Constitutional Court, in particular – represent the last barrier against the spread of partisan sway.

According to Respekt's sources, politicians are considering three alternatives for revanche against the constitution's keepers: tightening the court's authority, making its job substantially harder and enthroning their own kind to rule the tribunal. It's not yet clear which path of the three they will head down. They would nevertheless like to implement the "winning version" after a few months, once the buzz around the recent verdict subsides.

"It would be primitive to deal with it now: Everyone would see it as revenge,"

said ČSSD MP

Zdeněk Jičínský

, a loud critic of the Constitutional Court.

Perhaps the most complicated – and most volatile with the public – is the option of directly tightening the court's powers. To do so, MPs would have to approve an amendment to the constitution that would specifically state that the Constitutional Court cannot under any circumstances evaluate constitutional law, with the exception of norms.

This way, politicians would block judges' authority to shorten or extend the MPs' and the president's terms of office. But this isn't all as politicians' resourcefulness knows no limits. They could label every law approved by the majority as constitutional: the expropriation of land around highways, for instance, as absurd as that sounds. In practice, this would mean the death of the Constitutional Court.

As far as making judges' jobs more difficult, politicians are also considering cutting the justices' CZK 80 million budget. This would strongly affect the running of the court. The tribunal would, for instance, lack the resources to pay the judges' assistants, who substantially help out during the preparations of court decisions: They carry out research, process background materials and handle the less-important agenda. With a tightened budget, the court would have to let them go, which would notably slow down the process. Politicians could then argue that the court is "dysfunctional" and go on to justify the need to curb its powers – in their favour, of course.

And then there's yet a third alternative: taking over the court. Today, the Constitutional Court has 15 judges. Politicians are considering doubling this number and, with the president's help, appointing loyal party-liners or the closest of colleagues to the judiciary's ranks. This way, they would assume a majority within the court and could influence its rulings from the inside.

The score
Nevertheless, it won't be easy for politicians to assume control of the Constitutional Court once they actually decide to. Restraints to the court's powers might quickly crumble into similar constitutional complaints such as Miloš Melčák's, which succeeded in annulling the early elections. All it takes is for someone to attack such an attempt with a complaint, and the Constitutional Court will need to deal with it. Given its recent ruling on the elections, it's predictable that the tribunal would rule the attempt as unconstitutional on the basis of violating the division of power as designated by law.

The takeover of the court may not necessarily succeed either. Most of its current judges were selected by Klaus to comply with him. But nothing of the sort occurred in the end as the initially loyal candidates of the "honourable" institution turned into strong-headed keepers of the constitution who don't favour their former parties or even the president. A similar scenario could take place with newly appointed judges (although the ČNB's case stands as a warning as the central bank changed beyond recognition after Klaus injected his people into its ranks). The easiest intervention might then be budget cuts. Were this to happen, judges' decisions would most likely not be constrained anyway.

The political takeover of the Constitutional Court is further complicated by the fact that small parties such as the Greens, KDU-ČSL and TOP 09 publicly oppose the coup. The crusade against the court is, then, not monolithic, which in turn weakens the pressure headed by Klaus.

It's tough to predict how the relationship between politicians and the Constitutional Court will unfold from here. One thing is for sure: Both the options of handcuffing the court as well as that of respecting it – and subsequently bolstering the rule of law – are still in the running. Legal experts say that it will now chiefly depend on the interest of media and the public; the more the two express their resentment to the coup, the bigger the chances that politicians won't, in the end, find the courage.