Kysela: The key person in the selection of constitutional judges was Mynář – Nauzal

For the first time, the President clashed with his candidate for constitutional judge at the Senate. The senators did not approve the nomination of Pavel Simon. The president immediately lamented that they are stricter on his candidates than before. Does he choose his candidates well?

Guest I’m asking Jan Kysela was a constitutional lawyer and advisor to the president for legal issues and the constitution.

The Senate did not support Pavel Simon’s candidacy for constitutional judge. 23 legislators out of 73 present voted for him. Simon thus became the first of President Petr Pavel’s nominees who failed in the upper chamber. The result was not unexpected. The senators decided in accordance with the recommendation of both of their committees that discussed the candidacy.

Simon has faced criticism for his decision-making but also for his off-court activities. Specifically, because of the joint venture with his wife and the fact that, in the case of Chinese Qigong exercise courses, he only uses the Dr. variant instead of a full academic degree.

It didn’t help that the president personally came to the Senate to defend him. “Judge Simon belongs to those whom I consider restrained,” said Pavel. And he pondered what was behind the detailed vetting of candidates, which was not common in the past: “Is this a message? Where is the line of public interest?’

The President has already appointed five of his candidates for constitutional judges as constitutional judges with the approval of the Senate. He should nominate two more candidates this year.

Are senators tougher on presidential candidates than they used to be? And according to what criteria will Peter Paul decide on the granting of graces?

You can play the entire interview in an audio player, in your favorite podcast app or in a video.

What was said in the conversation?

1:00 Did you take the Senate’s disapproval of Judge Simon as somewhat of a defeat or a loss for you by heading the advisory panel that helps the president select nominees? – I did not take it as a personal defeat or loss, which does not mean that it made me happy. It certainly didn’t make me happy. But first of all, he is the candidate of the president of the republic, and not mine, secondly, the panel is a collective body, and again it is not me. And thirdly, it was quite clear from the beginning of our negotiations that just as Dr. Simon has indisputable advantages, he also has certain areas in which some people see rather disadvantages. The constitutional mechanism is based on the fact that the President of the Republic chooses, the Senate agrees or disagrees. In this case, he disagreed.

2:40 In that context, you already said that you perceived the debate as relatively sharp. – It’s about what part of the debate we’re talking about. If it is the public debate that took place a lot in the newspapers, or if it is the senate debate. In any case, the fact that this takes place partly in committees, in plenary sessions, in clubs, some of it is public, some of it is not public, so it seems to me that the degree of impact on the candidate’s personality or reputation is not particularly important.

3:30 In any case, when you embark on such an enterprise, such as a nomination to the Constitutional Court, you must assume some degree of interest. Although if you were based on that past experience, then this level of interest of the senators themselves may surprise you. But the main difference is the amount of media attention that used to be very little. About a fous higher for some candidates because the media evaluated them as controversial because they knew them, but many were not talked about much. And here is the question, to what extent and why it has changed, and whether this part of the discussion does not seem more contentious, more sensitive, or perhaps more potentially destructive to the reputation of some of them. Because the question is whether what we saw with Mr. Dr. Fremr, with Mr. Dr. Simon, is a certain reaching of the terrain in a way that was not quite common before. Or if this is supposed to be the norm. And depending on how it turns out, that may or may not translate into someone’s willingness to submit to it.

5:30 Haven’t you talked to Mr. Fremr ex post yet? If he doesn’t regret the whole thing, the whole nomination, or if he wouldn’t do it again? – We last spoke the day Dr. Fremr resigned. I don’t know, but I daresay it’s pretty unlikely he’d be interested in going through it again, because why would he. He is still a person in the legal community with a great reputation. And I feel that he could have had that reputation without any blemish, shadow or blemish if he hadn’t gone through the nomination process with the collateral damage. And it can be very similar with Dr. Simon. Moreover, I know for a fact that if he were now deciding whether to do it or not, and he knew what was going to happen to him, he would definitely say, “No, thank you.”

7:00 Where did the greater level of attention in the Senate come from? – This is a difficult thing that will have a number of different factors. The first factor may be that you have a different president compared to Miloš Zeman and Václav Klaus, each of whom at a certain time had a relatively solid background in the Senate. So you have some a priori intercessors. President Pavel probably has no a priori intercessors. That might be the first thing. The second thing may be related to the fact that he may be perceived as politically inexperienced. (…) I read an interview with the Deputy President of the Supreme Court Petr Šuk at the beginning of September, who talks about the fact that in the past presidents consulted informally with the leadership of the highest courts and that he assumed that this practice would continue. And she is most likely not continuing, because the president of the republic chose some other path. And you can take note of that, or it can bother you and you can show it.

9:00 It can also be one level who the president is. It could be that the president has a communist past. If someone has a communist past, he is always a communist. When he’s always a communist, he does things more wrong than right. Well, then you can continue further until you get to those individual candidates. And every candidate has some advantages, otherwise they would not be proposed. And every candidate has some disadvantages, otherwise they wouldn’t be human. It’s how you consider them, and that just transforms.

11:00 Do you think it would help the success or smoothness of the process if the president “pre-consulted” his nominees with senators? – It would undoubtedly help, but it probably wasn’t really done, I don’t know about it. President Pavel said how he intends to do it. These are the people with whom I will consult in this way, in the spring he called a meeting with the president of the Senate, with the presidents of the senatorial clubs, the presidents of the two committees, he described to them how he intends to do it, he described the criteria, he announced another meeting, it will most likely take place in November. So I feel that compared to the previous presidents, where it wasn’t really clear how it was done and who exactly had an influence on the selection of the candidates, because it was quite obvious that the presidents themselves probably don’t do it, so it seems to me that this is some kind of qualitative shift.

15:00 Has anyone on that list turned you down now that we’ve been watching that they just don’t want to be a part of it? – Most of those negotiations took place in the spring, now there were fewer of them in the autumn. One person approached refused, I don’t think it had anything to do with this, but she simply refused. With one, it was evident that she hesitated significantly more than she would have if it hadn’t been for the case of Mr. Dr. Fremr. I would say that it is especially a women’s problem. The women I’ve had the chance to talk to since the spring are less willing to think about it. Either because it’s a change or because it’s too prestigious, they’re less confident. And at the moment when some factor of this type enters your thinking or hesitation, that you would go for it, but it is still connected with the risk of venting something that you would like to be spared not only you, but especially your family, then I it appears that the level of hesitation may be greater than it was in the spring.

17:00 The president should now come up with two more names, when will that be? – It must be a matter of days. – Is it possible to specify who it will be? Without asking for specific names, but will it be a representative of the courts, a lawyer, an academic? – No one said, not the panel, not me, and certainly not the president of the republic, that he would not want to send a lawyer to the Constitutional Court. They should all be there. I can probably say that if nothing has changed, one of the pair is a lawyer.

21:00 Criticism is sometimes directed towards your panel that you did not check the candidates enough, that you did not find out much about them, how come you did not know this. as far as I know, so it is a voluntary activity for the vast majority of participants in that panel. You don’t have any camera at hand. So how does it actually work? – My ambition was to change the way the late Miloš Zeman operated, when I believed that the key person in the selection of candidates was Chancellor Mynář. And it seemed to me that if I replace Chancellor Mynář with a total of seven credible people with this kind of life or professional experience, that in itself is a move in a better direction. Because who did those previous presidents vet? Did they send BISka to someone, search the archives? Did the senators do it, did the public expect it? At the moment when you basically consider this to be an established practice, you are trying to move it towards some conceptual direction. I’m the only one with a work contract, everyone else works for free. We are not part of the Office of the President of the Republic, so we are not a state body. It is definitely not us who can request anything from the ÚSTR, the Archives of the Capital City of Prague, much less from the Security Information Service. In short, based on what we know, based on who we talk to, we collect positive and negative references.

29:00 The President wants to once again decide on the granting of pardons by himself from January 1 next year. Do you think it is right for the president to take this authority back into his hands? – I think it is correct, because it seems to me that the legal regulation in the criminal code is constitutionally questionable. The criminal code is set up in such a way that the Minister of Justice, instead of the President, when empowered by the President, can reject, cannot positively grant pardons. The question is whether, if you say no, it is not, in a way, also a decision on the pardon, which, however, belongs to the president.

30:00 What will the criteria be? – The problem is that there are thousands of applications for pardon, you have to check it. (…) From the short conversation I had with Mr. President on the subject, it seemed to me that in addition to the reasons that President Zeman talked about, that is, a serious illness or some fundamental humanitarian reasons, some social reasons could also be considered or a combination of them, which can be the care of, for example, minor children.

31:00 It is evident that this is an important agenda, that is why it should be connected with four people, and that is why it should be connected with the fact that the four people from Prague Castle should be able to look at the registers. Because otherwise it would be on the water, and if it were on the water, then you can’t get into that decision. Because you do it and the next moment someone beats you on the head for pardoning someone you shouldn’t have.