Czech Courts challenge election results

A recent ruling by the Supreme Court invalidating a Senate election in a Brno district and another ruling by a Prague court declaring that municipal elections in a Prague district were manipulated have set new precedents for Czech democracy. The Supreme Court declared the Brno election invalid because a Czech newspaper and Czech TV violated the rule under which no campaigning is allowed 48 hours prior to elections. The other case involved tampering with ballots and possibly electoral fraud.

The Prague case is more complicated as far as setting the facts straight is concerned, but the invalidated Senate race in Brno is more interesting. It poses a number of questions and tests the limits of Czech democracy. What seems to be clear is that the candidate who won the electoral race in Brno--Dagmar Lastovecka of the Civic Democratic Party (ODS)--herself did not violate any electoral rules. She is merely paying the price for the failure of two media organizations to adhere to the letter of law in the 48-hour period preceding the elections.

ODS Chairman Vaclav Klaus immediately criticized the Supreme Court's ruling as a discreditation of the elections. He argued that the ruling undermined the role of democratic elections as the main pillar of democracy. The ODS appealed to the Constitutional Court. The fact the ODS is not happy with the ruling is not surprising. However, the fact the ODS Chairman, who is also Chairman of the parliament's lower camber, has challenged the authority of the Supreme Court in this fashion is disturbing.

The main problem in the whole affair is not the Supreme Court. Clearly, courts are institutions of humans and as such can make mistakes. That is why, like in any other democracy, a court ruling can be appealed--in this case at the Constitutional Court. The main problem is the current electoral law. In banning any campaigning in the last 48 hours before the elections, it makes all candidates extremely vulnerable to irresponsible acts of the media or to cases of premeditated subversion of the electoral process.

The ruling of the Supreme Court has uncovered an important problem: institutions or individuals, whose actions are beyond the control of candidates can mar electoral results by campaigning on behalf of a candidate in the the last 48 hours before elections. It is clear that even penalizing such institutions or individuals, or punishing them under the criminal law, may not be a solution. A more reasonable solution seems to be abolishing the 48-hour ban on campaigning. After all, in most Western countries no such ban on campaigning exists.

The Supreme Court should not be criticized for doing its job. Rather, its ruling should be seen as a challenge to deal with a flawed electoral law. The ruling is healthy also because it has stirred a very useful, though emotional, debate among top politicians and experts. In that sense, it does not weaken democracy but, rather, strengthens it. Yet, some commentators have declared democracy in the Czech Republic dead following the ruling.

Such statements betray, more than anything else, that Czech democracy is still immature to a degree. Another sign of immaturity are attacks on the Supreme Court, following the ruling. But despite such manifestations of weaknesses of Czech democracy, the democratic system is certain to prevail and "digest" the whole affair without major problems.

From the constitutional point of view it seems that Supreme Court's ruling may be questioned mainly because the Constitution does not explicitly say the Supreme Court can invalidate an electoral result. Ii seems the court should only rule that electoral law was violated. The decision to invalidate the electoral result itself should be then made by other institutions. But even this aspect of the affair is not entirely clear, and it is now up to the Constitutional Court to clarify the matter. Things may be complicated by the fact that Dagmar Lastovecka is the daughter of Constitutional Court Chairman Zdenek Kessler. Bu, once again, even this fact should be seen as a test of Czech democracy, rather a reason for launching yet another round of political accusations.

Reuters - 9. 12. 1998