Kontrasignace aktů prezidenta republiky

Mgr. Daniel Janek

Master's thesis

Countersignature of the acts of the President of the Republic

Abstract:

Základním úkolem diplomové práce je přiblížit si postavení orgánů výkonné moci ve společnosti a také jejich vzájemné postavení. Následně se zaměřujeme na pozici prezidenta v systému veřejné státní moci, jsou vymezeny jeho pravomoci z pohledu jak ústavní teorie, tak v souvislosti s tím, jak se pravomoci vyvíjejí ve spojitostí s praxí.Dále práce obsahuje zamyšlení nad základními problémy, které jsou spojeny s institutem kontrasignace, v jaké formě a v jakých situacích se s ním setkáváme v naší ústavní úpravě, ale také jak tento institut vznikl historickým politickým vývojem. Nesmíme však zapomenout ani na některé konkrétní problémy, které ve spojitostí s výkonem moci prezidenta vznikly a přiblížíme si problematiku uplatnění kontrasignace v případě jmenování guvernéra a viceguvernéra ČNB, jak o ní rozhodl Ústavní soud ČR a také v diskutované oblasti udělování milosti prezidentem republiky .

Abstract:

If we are supposed to deal with a problem of a performance of the state power, which is closely connected with constructs such as political responsibility, power in a state, political system, we have to define the power itself briefly. The power is actually the ability to enforce your will, make others follow the rules, even against someones will. The power of one man over the others has been existing as long as the mankind itself. It has been following its development and supporting its progress. The whole mankind history is connected with the power of one man or the group over others, and therefore various social disciplines, e.g. psychology, political science, deal with this problem. The society itself has been developing simultaneously with the view of the power in the society. The power is also expressed on the level of the State. The State is an organization, creating a set of rules, which is represented by a certain governmental power, which has the instruments for its asserting in the form of coercive measures, which should be supported by the law. The general power has its own organized system, its institutions, authorities, non-governmental sectors. Among them there are various relationships, both on the vertical and horizontal level. The form of this system is then reflected in the internal form of a State and consequently in a form of the Government. The classical state power division, legislative, executive, judiciary, which control and complete each other, is obvious and not necessary to mention. We are going to focus on the executive power. Both the constitutional and real position of the President in a State is important in judging the particular form of a power. In the Czech Republic the executive is set constitutionally in Chapter three, Article 54 to 80 but we must not forget that the people are the source of all power in the State; they exercise it through bodies of legislative, executive and judiciary power. The executive power is not built on the principle of monocracy but on the duality between the President and the Government. The President authorities are set in Article 54 to 66. The Government authorities are set in Article 67 to 79. Furthermore the Constitution has returned to the necessity of the countersignature in some cases of presidential decisions. We ought to deal with this construct of the countersignature more. This institute, indeed, determines the position of the President in the system of the executive power in the State and defines his status between the bodies of the executive power. We have known this institute for a long time, since the restraints on power of a monarchy ruler, when it was established, until contemporary parliamentary forms of a state. Therefore it is essential to mention the constitutional development in England, a base of the parliamentary system. In the Czech Republic, according to the Constitutions from 1918, 1920 and 1948, the countersignature was required in all presidential acts of the legislative and executive power. The Constitution from 1993 divided the presidential authorities in two groups. One of them does not require the countersignature and these authorities are set in Article 62. The other group requires the countersignature. There have been many discussions about the position of the countersignature in a modern parliamentary republic. Sometimes it is said that the countersignature is necessary when the President is unaccountable, but not appropriate when the President is accountable. The countersignature is also discussed in connection with various possibilities of the presidential elections. However, some particular disagreements have appeared. The most evident was about the presidential authority to appoint members of the Bank Board of the Czech National Bank, cosigned by the Prime Minister. This disagreement between the President and the prime Minister evoked an extensive discussion which had to be arbitrated by the Constitutional Court. It was stat

Abstract:

ed that the countersignature in this case was not necessary. The countersignature was also discussed in public in connection with a pardon, which is granted by the President. We must state that at present granting an individual pardon does not require the countersignature, contrary to the general amnesty. This impossibility of any control over the presidential decision has evoked a lot of controversy and many people demand restraints on this presidential authority.

Keywords

prezident, výkonná moc, kontrasignace, guvernér ČNB, milost, moc, pravomoc, vláda

Language used: Czech

Date on which the thesis was submitted / produced: 4. 4. 2007

Thesis defence

• Date of defence: 9. 5. 2007
• Supervisor: prof. JUDr. Jan Filip, CSc.

Masaryk University

Faculty of Law

Master programme / field:
Law and Legal Science / Law