Problems of the concept “guarantor of the constitution”

Abstract

The article critically analyses the concept of “guarantor of the constitution”. Briefly describing the history of the emergence of the concept, the author argues that it was originally understood too narrowly – only as a function of ensuring the stable functioning of the state apparatus. This is also how it is understood today. Meanwhile, even if the state apparatus is formally operating legally, this does not always mean that its operation is consistent with constitutional principles and values. The constitution is not simply an act of supreme legal force. It is imbued with constitutionalism, which boils down to the idea and practice of limiting power for the sake of the value of human dignity. In its turn, constitutionalism is secured by a number of principles and values, including pluralism. However, constitutionalism can also suffer from pluralism. The article speaks of two threats on this side: first, large-scale inter-party conflicts (both direct and “disguised” as conflicts between state bodies) and, second, the possibility of a political force aligned against constitutionalism gaining state power. Consequently, guaranteeing the constitution consists not only of ensuring the normal functioning of the institutions of public power, but also of protecting and defending the constitutional principles and values, which together represent constitutionalism. However, practice shows that presidents either neglect this “second part” or use the appeal to constitutional values to strengthen their own power. In the author’s view, this is due to the fallacy of the very model of a mixed (semi-presidential) republic, within which the concept of “guarantor of the constitution” emerged. The institution of the president in this model is positioned by doctrine as politically neutral and therefore above all branches of power. However, the neutrality of the president of a mixed republic is illusory, for he is a more or less active political actor and therefore incapable of fulfilling the role of guarantor of the constitution. The false presumption of presidential neutrality not only makes the institution of the guarantor ineffective, but also contributes to the authoritarian trend of the president.