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Constitutional Act no. 71/2012 Coll.

Constitutional Act no. 71/2012 Coll. represents the longest amendment of the Czech Constitution. Substantially, it puts forward an important change of the Czech constitutional system as it introduces the direct election of the President of the Republic and amends related issues ranging from responsibility of the president to the delimitation of president's competences (e.g. moving some types of presidential pardons into the category of countersigned competences).

According to the original wording of the Czech Constitution (Constitutional Act no. 1/1993 Coll.) the President of the Republic was to be elected indirectly by the Parliament at a joint meeting of both chambers. This option, used for twenty years between 1993 and 2013, was inspired by the classical model of parliamentary republic where the president is not primarily perceived as the head of the executive who would require strong democratic legitimacy independent of a parliament. However, practically all the time since the establishment of the Czech Republic, there were voices calling for the direct election of the president. After all, the Slovakian constitutional system, which has been construed in the same time as the Czech one, opted for the direct presidential election already in 1990s.

Despite rather skeptical reactions of the experts in the field, in 2012 the analyzed constitutional amendment was adopted. The constitutional act laid down that the President of the Republic is elected directly (art. 54 paragraph 2 of the Constitution) and specified the fundamental features of the electoral system (art. 56 of the Constitution: e. g. the electoral system or the right to propose a candidate). Many important issues, however, were not amended (e.g. the passive voting rights). Further details of the electoral process are contained in the Act no. 275/2012 Coll. on the election of the President of the Republic.

The direct election of the Czech president has taken place only once so far (in 2013), but the first election already uncovered some of the problematic features of the new rules. Several well publicized court trials were initiated already in the phase of the candidates' registration. The major question was how to verify that the “popular candidate” submitted the petition supporting his candidature signed by at least 50 000 eligible voters. Number of potential issues is also related to the new concepts of the Czech election law, which were not regulated in this manner in the existing election laws (on the parliamentary elections, European Parliament election and local representative bodies elections), it is especially the regulation of electoral campaigns' financing, limiting the expenditure on campaigns, and the subsequent judicial review of these rules.

Another important change of the constitutional status of the President of the Republic concerned the president's responsibility. The president has not been responsible for the performance of his duties (art. 54 paragraph 3 of the Constitution). Until the adoption of the Constitutional Act no. 71/2012 Coll., the only exception to this general rule was the competence of the majority of Senate to submit the impeachment against the President of the Republic to the Constitutional Court in the case of high treason. The penalty that might have been imposed by the Constitutional Court was the loss of the Presidency and of further eligibility for the office. Constitutional Act no. 71/2012 Coll. has broadened the responsibility of the president (and thus it is questionable whether art. 54 paragraph 3 of the Constitution still makes sense) also to the cases of “gross violation of the Constitution or other part of the constitutional order”. However, the real impact of the broadened responsibility shall not be overestimated as the standing to initiate these types of proceedings before the Constitutional Court has changed. Nowadays the three fifths majority of the present senators is required and, moreover, the consent of the three fifths majority of all deputies is necessary in order to initiate the proceedings. These procedural rules make the president's responsibility rather merely theoretical.

President's responsibility was also affected by the time limitation of his criminal and administrative legal immunity only for the period in office (see a commentary of Constitutional Act no. 98/2013 Coll.).

The introduction of the direct election brought in also more general issues related to the entire design of the Czech constitutional system. A question has arisen as to whether the newly acquired democratic legitimacy of the president might “rewrite” the existing understanding of the president's position within the system of separation of powers (e.g. discretionary powers, relation with the government, the nature of countersignature etc.) and to what extent the existing constitutional conventions and case-law of the