>British voters: Václav Klaus needs you!
>As in all the best action thrillers, it comes down to this: one man holds the fate of Europe in his hands. Unfortunately – or for those of a certain ideological disposition, fortunately – that man is not Arnie Schwarzenegger or Claude van Damme, but Václav Klaus.
But still, the Czech President’s willingness (or unwillingness) to pick up a pen is (or soon will be) all that stands between final EU-wide ratification of the LisbonTreaty. Of course, as a dyed-in-the-wool opponent of Lisbon and the ill-fated Constitutional Treaty, Mr Klaus understandably does not want to pick up his.
But surely, sooner or later he has to? The Treaty was, after all, duly ratified in both houses of the Czech parliament several months ago, after all, and Klaus is merely an indirectly elected head of state of a small country with pretty every EU government (including his own) against him.
Constitutionally and politically, Mr Klaus – whose favourite metaphor for politics was for a long time that of an unfolding game of chess – still has a strong defensive position and few good moves left to make
On ordinary domestic legislation, the Czech president does not have strong powers. He has a weak veto on parliamentary legislation, which can be overturned by a simple majority vote of the lower house. His executive powers are also limited. Appointing judges and central bankers and choosing a Prime Minister designate to form a government after election is about the size of it.
However, when we come to international treaties things are bit different. Article 631b of the Czech Constitution states that the President “negotiates and ratifies international treaties”. But no one is quite sure if this means the President must sign treaties approved by parliament (directly or as with EU accession by delegating it powers to a referendum) or that he must to do for treaties to be ratified but may not if he chooses. Indeed, a lively debate on the subject has ensued in Czech legal blogs (see here, for example). Some have suggested that were the first interpretation to be followed, a refusal to sign would result in the Treaty passing into law anyway, but that would have to be tested out in the Constitutional Court with the certainty only of a long, complex and controversial case.
Point blank refusal is, however, neither legally nor politically necessary for Klaus to hold up the Treaty There seem, however, to be a consensus that the President can (and indeed should delay) signing a treaty if he thinks it needs further examination or it constitutionality needs testing out. How long can he reasonably do so? How long is piece of string?
Statesmanlike as every Mr Klaus has gone straight for this strategy of seeking minor (but, of course politically unfeasible) amendments to the Treaty in the fundamental interests of the Czech state: specifically he is concern that the Charter of Fundamenal Rights might allow could enable the European Court of Justice to revise the 1945 Beneš Decrees under which the post-war Czechoslovak government stripped its ethnic German citizens of property and citizenship. This demand is a clever move combining the President’s widely recognised but informal constitutional role of guardianship of the state role with a totemic and sensivity issue connected with national identity and demand which, viewed superficially, asks for no more than the kind of opt-out that old member states like the UK feel amply entitled to as a matter of course.
The country’s politicians and major parties could, in theory, cut through the Gordian Knot by curtailing the President’s powers, or indeed remove Klaus directly through some special constitional law or more indirectly by re-making the nature of the Czech presidency altogether through a constitutional amendment (as the Greens seem to suggest). However, given the present non-partisian caretaker government, which rests on a not altogether solid political agreement between the two major Czech parties, divisions in ODS and the unpredictable but Lisbon-unfriendly position of the Communists this seems unlikely. It might also be problematic constitutionally given that the Constitutional Court has akready rapped politicians’ knuckles for attempting similar jiggery-pokery with the Constitution to allow early elections. Article 65(2) of the Constitution also allows the indictment (and possible removal) of the President for high treason in the Constitutional Court following a Senate vote but, I suspect, even the most ardent europhile might balk at equating Klaus’s opposition to the Lisbon Treaty with this.
But is there any kind of end game available to Klaus? Even if he could, if he wished, lay into the current caretaker government’s lack of legitimacy (Who voted for Fischer or Fule?), even in the Czech context the indirectly elected Klaus lacks either the public backing or the political legitimacy to block the will of an elected parliament for ever and a day.
Help, however, is happily at hand in the form of the those old ideological confreres the British Tories, even if Klaus has been fairly contemptuous in the past of the touchy-feely, bluey-green conservatism of Dave Cameron and co. Trying to fudge the issue of Lisbon without facing down his party’s eurosceptics or re-open a very internally divisive issue, Cameron promised a British referendum on Lisbon (which would almost certainly reject it) – as a extra to the Treaty’s existing ratification by the British Parliament – if and only if the Treaty was still unratified elsewhere and so not in force.
So, all Mr Klaus has to do is string out his questioning of the Treaty another six months and fend off a disunited Czech political class and a government of technocrats until (as seems likely) the British Conservatives win a May 2010 election, hold the promised referendum and let the people speak. The will Brits democratically derail the Treaty, while Mr Klaus say innocently, but with some satisfaction as he did after the Dutch and French referendums rejecting the original Constitutional Treaty, that he knew it would all end in tears when the voters got in on the act, but all he was doing was acting presidential and thoughtfully examining the Treaty and watching out for Czech national interests like a responsible head of state
Dave must be delighted at the prospect.