A Constitutional Solution to the Czech Post-Election Conundrum
Lorenzo Berardi 27 October 2021

More than two weeks have passed since the parliamentary elections in the Czech Republic and the country remains without a new government or a new premier-elect. This unprecedented stalemate is due to the sudden hospitalization of the President, Miloš Zeman, who would normally decide the outgoing Andrej Babiš’ heir. The impasse could be broken in the next two weeks, when the Senate and the Chamber of the Czech Parliament meet again, bypassing Zeman’s mandate for health reasons. Meanwhile, it is already certain that the country will not be led by multi-millionaire Babiš, who was dismissed by voters.

The second Babiš government rested on a fragile equilibrium between nine parties in the Prague parliament. ANO, the former PM’s party, was allied with the ČSSD socialists, but could only govern with the external backing of the Communist Party of Bohemia and Moravia (KSČM). This equilibrium was overturned by the elections held on 8 and 9 October. Neither the KSČM or the ČSSD managed to reach the 5% threshold allowing them to stay in parliament, while ANO saw its 2017 result shrink. 108 seats out of 200 in the new Czech parliament were won by two coalitions opposing Babiš: the center-right SPOLU (Together) and the liberal Pirates & Mayors (PaS). The two alliances bring together five parties across a spectrum that includes conservatives, Christian Democrats, ecologists and liberals, now determined to govern together. To do so, however, the response from the ballot box must be followed by tasking their premier-designate, Petr Fiala, leader of the Civic Democratic Party (ODS), with forming a new executive. This would ordinarily depend on Zeman, but since the 10th of October – the day after the polls closed – the President has been in intensive care due to a chronic diabetes flare-up.

To complicate matters, a few hours before being admitted to the Prague Military Hospital, Zeman had met Andrej Babiš in private, confirming that he wanted to entrust him with the job of forming a new government. The President had voiced his intention before the vote, when he described coalitions as “an imbroglio”, promising that the new prime minister would be the leader of the party capable of obtaining the most votes, i.e. Babiš. It was a tempting but insidious offer for the outgoing premier, who quickly rejected it, aware that neither SPOLU or PaS would have any intention to ally with him. This is one of the reasons why relations between Zeman and Babiš, once cordial despite some disagreements on the role of China and Russia, have deteriorated.


The key of Article 66

So the appointment of Fiala requested by the opposition would bring everyone into agreement. Everyone but Zeman and his chief of staff, Vratislav Mynář, who has continued to stall, drawing the attention of the Czech police for possible “crimes against the state”. As Otto Eibl, a political scientist at Jan Masaryk University in Brno, said to ResetDOC: “Mynář insisted that the President was capable of fulfilling his institutional duties, when in fact he was in intensive care.” The Senate president, Miloš Vystrčil, on the other hand, has learned from hospital doctors that Zeman’s health will not allow him to be head of state. “What we have witnessed in the last few days is an attempt by individuals in the presidential entourage to prevent parliament from suspending Zeman’s power and with it theirs,” explained Jiří Pehe, a political scientist from the New York University Center in Prague, speaking to Czech Radio.

Despite his staff’s denials, the President of the Republic is currently out of the game. That’s why the activation of Article 66 of the Constitution, passed in 1993, is now under consideration. This would transfer Zeman’s functions to the outgoing PM, while the decision to appoint a new one would fall to the future President of the Chamber of Deputies. According to Eibl, this is the most likely scenario and the only viable option to break the deadlock. “The new President of the Chamber should be Markéta Pekarová Adamová, leader of Top09, one of the parties belonging to SPOLU,” he adds. In that case, she would give the job to Fiala.

First, however, Article 66 would have to be triggered, something that has never happened before. This would require both the Senate and the Chamber to vote in favor of the provision, but this does not seem to be an obstacle. The next session of the Senate will be on the 5th November, while the new Chamber with a SPOLU and PaS majority will meet three days later. Everything therefore suggests that by November 8 the first Fiala government will be given the green light. “This is a new situation”, acknowledges Eibl, “but the Constitution is clear on how to proceed, despite the unprecedented behaviour of Zeman’s staff”.


The future of Babiš (and Fiala)

So what about Andrej Babiš? Before the elections he said he was ready to leave politics should he be defeated and say goodbye to the premiership. At the close of the vote, despite the victory of SPOLU and PaS, he had initially hoped to be given the task of forming a new government, only to change his mind soon later. He now seems disinclined to lead the ANO and the opposition, partly because he is preoccupied with events outside politics, from the Stork’s Nest and Agrofert scandals to the recent Pandora Papers revelations. “Today Babiš wants to present himself as a statesman. Many Czech journalists and political analysts are convinced that he is gearing up for the next presidential elections,” Eibl points out. The former premier also “needs to maintain immunity to protect himself from his judicial problems, and becoming the new President of the Republic would be the perfect solution.” That would belie the former premier’s stated disinterest in becoming head of state.

Zeman is expected to remain in office until January 2023, but the secrecy surrounding the state of his health raises fears that his presidency’s end date might be brought forward. Should the current head of state pass away, warns Eibl, “the president of the Senate has ten days to call direct presidential elections, which should take place within 90 days. That would leave little time for any independent candidate to collect the 50,000 signatures needed to run for president, and I think they would fail. Only sitting parliamentarians would be left in the race, another reason why I think Babiš will take this route”. A choice not widely welcomed by the Czech people according to a recent poll by public broadcaster Radiožurnál, which found that only a quarter of respondents are ready to support his candidacy.

In the meantime, Babiš is preparing to hand over the baton to 57-year-old Petr Fiala. The Constitution does not set a deadline for forming a new government, but it is likely to be in place by the end of November. Eibl believes that negotiations will be swift as SPOLU and PaS have already agreed on governing together and are counting on a majority in parliament, stressing that “their main goal was to get rid of Babiš and in this they have succeeded, so I think the first steps of the new executive will take place without friction. However, I would not bet on this government lasting for the next four years.”

Among the first moves of the future Czech government we can expect legislation in support of the economy and renewable energy, contrary to Babiš’ attempts to revive nuclear power. Relations will also be mended with Brussels, having soured with the legal troubles of the former PM, accused of misusing European funds and conflicts of interest. In truth, during the election campaign the conservative Fiala made sure to keep Europe in the background, focusing on raising pensions and fighting inflation and public debt. But the PaS coalition that will govern alongside SPOLU has made its pro-EU stance one of its cornerstones and the Czech Republic will certainly not follow Poland and Hungary down the road of confrontation with European institutions.


Cover Photo: The leaders of the ‘SPOLU’ (Together) coalition Markets Pekarová, Petr Fiala and Marian Jurecka (L-R) deliver a speech after the latest Czech parliamentary elections – Prague, October 9, 2021 (Facebook / P. Fiala).

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