Jan Macháček

Hledání

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Czech Business Weekly

President Klaus claws at the courts’ independence

18. 08. 2008
At the beginning of last week Czech President Václav Klaus signed an amendment to the law on “courts and judges,” which, in line with the constitutional divisions of power, is supposed to specify the relationship between judicial power and executive power.

Without much public and expert discussion, this law quite dramatically strengthens the powers of the president. The president names the chief of the Supreme Court and Supreme Administrative Court. Now he will also name the two vice presidents of the Supreme Court and all the other court bosses, except for those at the very lowest level, the district courts.

Another new feature of the amendment is the creation of penal committees, which are supposed to decide the fate of judges whose behavior is in conflict with the rules and discipline of the professions, for example, if they do not proceed quickly enough with cases, arrive late for work, get drunk at work, do not behave properly in public, drink while driving, shoplift, etc. These acts of, say, “misbehavior” seem clear enough, but there at least two troublesome points with the penal committees. One is that the committees are supposed to follow whether the judge is ruling “according to the law” and if he is working hard to improve his professional education or re-education. These are very flexible, subjective things that can be politically misused against judges who become inconvenient to powerful people.

Powerful gain a new way of punishing judges

The second troublesome matter is connected to the first. The penal committees will consist of judges, lawyers from outside, professors of law, attorneys and defense attorneys. But the new thing is that among those who will a have right to submit a complaint about a particular judge we also find the president. There is a danger that the president—perhaps at the instigation of an influential member of a political party—can frequently complain against a particular judge, whose judgments go against the will of the powerful.

In the U.S., the president also names judges, for example, to federal circuit benches. But the chief of a particular court performs a managerial function, and it would be better if such a person is picked out by a union of judges. It would also be better if judicial power in this country was strengthened, rather than attenuated. Judges should have their own fiscal chapter, for instance. But the opposite is evidently happening.

The new law should be, and hopefully will be, screened by the Constitutional Court. It strengthens the powers of the head of state, and executive power in what is a fragile system for balancing power. The new managers of the courts will stay in their positions for 10 years. This is also not good at all. It should be a much shorter period of time. If someone is a good court manager, he can manage a different court after his tenure expires. We also do not have presidents or prime ministers functioning for 10 years, we do not have such a long electoral cycle. If one is sitting at some post for such a lengthy period of time, there is a high risk that he becomes lazy, too convenient for some and fights with routine-like-behavior.

There is quite a big pool of judges in this country for serving in the managerial posts and the rotation of court chief positions should be much quicker than is currently prescribed by this new legislation. It is also possible to imagine that court chiefs will sit in their positions for 10 years and will then have a chance to be named for another 10 years. In the end these people might be the longest serving constitutional figures in this country. Such people will serve longer than senators, longer than MPs, ombudsmen, indeed longer than anyone in some kind of public office. It is easy to imagine that at the end of their first managerial tenure they will try to behave properly and go to great lengths to serve the wishes of the powerful, in our case, of the president. Therefore, the chances of a second term at a particular court are not a good thing at all.

A chance to remove the likes of Cepl

The powers of the court chiefs over particular judges are quite strong.

They can “ration” judges with a particular agenda or they can take their agenda away. Let us apply a hypothetical example to Judge Vojtěch Cepl Jr., who courageously decided that former chief state attorney Marie Benešová did not have to apologize for using the term “judicial mafia” describing the behavior of powerful people including current chief state attorney Renáta Vesecká. Some potential new boss of the court could decide that Cepl will be switched to being in charge of a different agenda, for instance of something less political, such as standard criminal cases.

What were the motives of the powers behind the accepting of this norm? Paradoxically it was not the need for tuning details connected with constitutional order, but above all the fact that Klaus hates the chief of the Supreme Court, Iva Brožová, and wants her to be replaced by Judge Jaroslav Bureš. Klaus cannot stand how he has repeatedly lost at the Constitutional Court, which has disagreed with his attempts at getting rid of Brožová.

The circumstances under which this new norm has been accepted are certainly shameful. Minister of Justice Jiří Pospíil was afraid of worsening his relationships with judges and their union, so he let this crucial norm (with his silent support) be submitted by Civic Democrat MP Marek Benda. It is a shame that the justice minister does not have the courage to stand up for his wishes and it is also shame that he is such a servant of Klaus, who is obsessed with his illusion that the judges have so much power.

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