Pitfalls of the Constitutional Treaty Ratification in the Czech Republic

The debate on the ratification of the Constitutional Treaty in the
Czech Republic shows several interesting aspects. This article,
written by David Král and published
by Europeum, will briefly strive at summing
up and analysing them.

First point which should be mentioned is the current uncertainty
about the ratification method. The Czech Constitution counts
pursuant to its Article 10a on a classical way of Parliamentary
assent of both chambers of the Czech parliament by three fifths of
their members. As the example of the Treaty of Accession shows, the
political representation may decide for the case of an obligatory
referendum, whose positive outcome directly ratifies the treaty. As
there is no framework law regulating a nationwide referendum in the
Czech legal system, it was necessary to adopt a special
constitutional act. Pursuant to Article 2 paragraph 2 of the
Constitution, only a constitutional act can regulate when and how
the people exercise the power directly. 

In case of the EU Constitutional Treaty, it seems that there is
a general consensus on the Czech political scene that the
referendum is the way to proceed. However, while some of the member
states have already ratified the Constitution or at least have a
very specific idea when and how the ratification will be held, the
Czech politicians have not even started to discuss the draft
constitutional act that would regulate this process. The difference
between the largest coalition and opposition parties rests with a
different attitude to the institute of referendum as such. The
Social Democratic Party (CSSD) conditioned holding of a referendum
on the adoption on a general framework act enabling to call for a
popular vote on other issues as well. The Civic Democratic Party
(ODS) does not support this as generally it is opposed to direct
democracy. It claims, though, that the citizens should decide on
the Constitutional Treaty as it is a next important step in
European integration sacrificing yet more national sovereignty to
Brussels. Regarding the fact that the ruling coalition does not
have sufficient support in either of the houses of Parliament to
adopt the constitutional act as it would wish, it will have to make
a deal with the opposition. This means that another ad hoc act is
likely to be passed, regulating thus the conditions for holding a
referendum on the EU Constitution. At the moment, an ODS proposal
is on the table (not submitted to the parliament deliberations yet)
which reckons on having a referendum practically under the same
conditions as in the case of EU accession, including non-existence
of a quorum for the validity of the vote. 

Another problematic point is the date of a possible referendum.
Prime minister Stanislav Gross announced already in the autumn of
2004 that he would like to join the referendum with the forthcoming
election into the Chamber of Deputies due to take place in June
2006. On the contrary, ODS wants to have the referendum earlier,
preferably within five months or so. These statements can be in
case of both major parties explained by different motives. The
Social Democrats hope that the popular vote – if having a positive
outcome – will limit its defeat generally expected in the next
parliamentary elections. Higher participation when the referendum
is held along with the election of deputies could potentially
attract a higher percentage of “yes” voters. Apart from that, CSSD
in a rather populist way argues with saving the taxpayers money,
but it is unlikely to get her any political points. The motives for
ODS advocating an earlier date can be seen largely in the fact that
this party is not interested in having an in-depth and extensive
debate on the Constitution. This is because it uses largely
superficial and populist arguments in her rhetoric that could be
turned down in a more profound debate. Another motive is that ODS
which refuses the Treaty as such relies on its capacity to convince
the votes to say no. If the referendum is held as late as June
2006, ODS risks that the Czech Republic could be the last (and
perhaps the only) country that will refuse the Constitution. This
would clearly lead the country and its new government (whose leader
is almost certainly going to be ODS) in a very uncomfortable
position and under pressure that even the Civic Democrats do not
dare to risk. 

Late vote on the European Constitution however brings yet
another subtle but potentially even more serious risk. The
Constitutional Court Act envisages the possibility of a review of
compatibility of international treaties (under which regime the EU
Constitution still falls) with the Czech constitution. This
procedure can be initiated by either of the houses of parliament or
a group of deputies or senators at the time when the treaty is
submitted to the parliament to give its assent with ratification.
Furthermore, this can be referred to the Constitutional Court by
the president. And it can happen even after a “yes” vote in a
referendum, before the treaty is ratified. This means that the
review process can be started at a very late stage, in summer 2006
at earliest. Although the Constitutional Court is likely to give
preference to this cause, the ruling will still take weeks or
months. The Czech Republic can again find itself in a precarious
situation as the term for the ratification expires in October 2006.
The Czech Constitutional Court Act does not provide for a
preliminary reference to the Constitutional Court by the Government
which is awkward regarding the fact that the government who
negotiated the treaty should have a pre-eminent interest in making
sure that the Constitutional Treaty complies with the Czech
constitution. Apart from that, the government is automatically part
to this proceedings but cannot initiate it. The Government should
have the possibility to refer the case to the Constitutional Court
at this stage already, thus ensuring that the ratification can
proceed, as was the case in Spain for instance. 

The situation will get even more complicated if the ruling of
the Constitutional Court is negative. In that case the Czech
Republic could not ratify the Constitutional Treaty until
respective constitutional changes are undertaken. Taking into
account the political constellation it cannot be assumed that such
changes amendments can be passed, especially if the opposition
gains substantially in the next elections to the Lower chamber. The
Czech Republic can easily find itself in a situation where it
cannot ratify the Treaty despite a positive outcome of the
referendum and where the major battlefield where the ratification
duel takes place will be the Constitutional Court. 

In case of a positive outcome of the referendum, it is unlikely
that either of the chambers or a group of deputies or senators will
take the risk of running against the will of a majority of Czech
voters and refer the case to the Constitutional Court which could
subsequently slow down or block the process. In case of the
president Vaclav Klaus it is not sure that he will use his power
and will still ask the Constitutional Court to review the
compatibility of the Constitutional Treaty with the Czech
Constitution. 

An important element is also a high polarisation of the Czech
political scene on the EU Constitution issue. This will definitely
be reflected in the public debate which will fully take off at the
moment of a definite decision on the mode and date of ratification.
The first signs in this respect were borne by the recent European
Parliament resolution where 17 out of 24 Czech MEPs voted against
the document. President Klaus during the European Forum in Berlin
expressed himself that he is “hundred per cent” against the
Constitution. Apart from the aforementioned ODS the Constitutional
Treaty is refused also by the Communist Party of Moravia and
Silesia (KSCM) which is the third strongest party in the Chamber of
Deputies. This implies that the parliamentary ratification is
almost impossible at the moment. Thus in a way referendum remains
the only feasible way of getting the Treaty approved by the Czech
Republic. It cannot be, however, assumed that this will be as easy
a process as in case of the accession referendum. It seems that in
case of argumentation, the opponents are well ahead. It is not so
much that the arguments would sound so much more convincingly, it
is rather because their activity in the media is much more
vociferous. One of the main arguments put forward by the opponents
is that in case the Czech Republic says “no”, nothing much will
happen as the system based on the Treaty of Nice will remain in
place. 

The advocates of the Constitutional Treaty, especially the
current ruling coalition, are pushed to a reactive position. If the
Treaty is to be ratified in a referendum, the Government as the
main advocate of EU Constitution will be faced with an uneasy task
of persuading the voters to vote “yes”. But the issue should be put
in a broader perspective and to point out to possible serious
political consequences of a negative vote, including a possible
marginalisation of the Czech Republic in the European
decision-making. If the government succeeds in explaining that the
referendum will practically mean another referendum on EU
membership, it is likely that a sufficient support will be
mobilised. This applies also to other countries where the outcome
of a popular vote seems highly uncertain. 

For more analyses, visit the Europeum website.