Abstrakt
Chapter 1
The chapter is an introduction to the book on the presidential conventions in 4 Central European countries (the Czech Republic, Slovakia, Hungary, and Poland). The chapter justifies the need to study constitutional conventions in the region by a specific paradox. On the one hand, over the last 3 decades, some constitutional conventions have been established. On the other hand, scholars have so far paid little attention to this phenomenon. In addition, the constitutional conventions are significant to the operation of the Central European parliamentary regimes.
The findings, arguments, and conclusions of the book are based on 4 major pillars. First, the book authors rely on the texts of the constitutions and a couple of laws directly related to the presidents of the Central European countries. Second, the authors come from hitherto scholarly literature on the concept of the constitutional convention. The authors also conducted 46 semi-structured interviews with country experts to learn more about (1) the concept, (2) specific constitutional conventions in the region, and (3) their role in adjudication. Third, the authors have studied the actual behaviour of key constitutional actors. Fourth, the authors have studied decisions by the constitutional courts of the Central European countries.
Chapter 2
The aim of this chapter is to provide a working definition of presidential constitutional conventions that is used in subsequent chapters of the book. Before suggesting the definition, the authors provide an overview of the existing scholarship.
The literature review is introduced against the backdrop of the general legal and constitutional contexts in which constitutional conventions operate. First, the authors look into how Anglo-Saxon scholarship, which is surely the most voluminous, deals with constitutional conventions. Afterward, the authors focus on the situation of German-language scholarship, again after an analysis of the wider legal and constitutional milieu, explaining why far less attention has been given to the subject of constitutional conventions in German-speaking countries. Both major legal systems and scholarships have substantially influenced the general legal, constitutional, and scholarly thinking of the 4 Central European countries. Finally, the authors explore the pertinent scholarship in individual Central European countries, in each case again after exposing the fundamentals of their legal and constitutional situations forming the background against which such conventions must be assessed.
Finally, the authors formulate their definition of constitutional conventions and present their further classification which is applied in subsequent chapters.
Chapter 3
The chapter studies the formal constitutional position of presidents within the constitutions of Central European countries. The chapter is especially concerned with 3 issues. First, the authors look into the position of the president within the system of division of powers. Second, they study their formal competencies (powers), using a standard division of powers into legislative and non-legislative powers. Not all the competences are debated in detail. Instead, the authors analyse 1) the most important competences that define the position of the president, and 2) competences that are directly related to constitutional conventions. Despite the fact that the scope and degree of action of presidents is framed by the rules of a parliamentary regime and presidents are expected to display forbearance in executing their powers, presidents have occasionally become more active and even received the position of king-makers. Third, the authors analyse the scope and frequency of constitutional changes that affected the presidency in the constitutional systems. The 4 Central European countries differ quite significantly in this particular issue.
Chapter 4
Chapter 4 is central to the book as its aim is to identify presidential constitutional conventions in the Central European countries. In total, the authors identify 22 presidential constitutional conventions in the 4 countries. Most of the conventions (16) were found within the relationship between the president and government, notably in the government formation process, which may indicate (1) the area of intensive interaction between the 2 actors, occasionally competing for power, and (2) a high degree of brevity or even ambiguousness of constitutional texts in this particular area, despite frequent efforts to eliminate the 2 phenomena by constitutional amendments and/or by judgements of the constitutional courts in the region.
Despite the relatively limited number of presidential constitutional conventions in the region, there are several other areas that serve as a potential pool for future constitutional conventions. Notably in the Czech Republic and Slovakia there are several areas of presidential politics (appointment powers, government formation process) that are conducive to the emergence of new constitutional conventions, although so far no clear, regularly repeated pattern of behaviour has appeared.
Chapter 5
Chapter 5 analyses how presidential constitutional conventions are used and applied in the case law of (predominantly constitutional) courts in the examined Central European Countries. It first explains that Hungarian and Polish Courts do not apply constitutional conventions because the constitutions of both countries do not allow them to do so. Hence, the chapter focuses on the understanding and development of conventions in the Czech and Slovak case laws. Our findings show that both the Slovak and Czech constitutional courts similarly adopted a rather less stringent approach concerning the requirements for the conventions to be established. Yet, both courts have hitherto recognized presidential conventions related solely to the limited area of the presidents' appointment powers. The most important differences are that the Slovak Constitutional Court included conventions into its reasoning considerably later and in a weaker form than its Czech counterpart. It understands conventions as mere interpretational tools whereas the Czech Constitutional Court did not exclude the possibility of conventions being legally binding sources of constitutional law (which can even be contra constitutionem). However, this "strong" conception suggested by the first generation of Czech constitutional judges during the nineties was abandoned in recent decades.
Chapter 6
Chapter 6 is conceived of as the conclusion of the book, which makes a two-fold contribution. First, the book brings a new perspective on the study of constitutional systems in general and presidential politics in particular. Second, this book has helped to open a relatively new area of research: constitutional conventions in 4 post-communist countries. The book contributes to our understanding of the Central European constitutional systems and their practical operation. Constitutional conventions complete formal (constitutional) rules of the game. Ignoring the constitutional conventions, one may gain an incomplete or even misleading understanding of the constitutional systems and their working in daily constitutional practice.
The chapter also suggests a couple of relevant topics for future research. For example, there is a question of the future of constitutional conventions in times of abusive constitutionalism both in Poland and Hungary. Another promising area of future research is the relationship between the existence and relevance of constitutional conventions and the quality of democracy. Also, it appears interesting to inquire into the awareness of the constitutional conventions among active politicians and analyse how the awareness changes over time and how the politicians actually understand the term constitutional conventions.