2001/06/20 - Pl. ÚS 14/01: Czech National Bank

20 June 2001

HEADNOTES

In its judgment, the Constitutional Court ascertained that the

interpretations of the Constitution upon which the government relies is

not in harmony with the Constitution.

In particular, the

government position deduces from an interpretation of an ordinary

statute the conclusion that the President of the Republic has the

authority to appoint three members ot the CNB Bank Council (the Governor

and the Vice-Governors) only with the Prime Minister's assent (or that

of the delegated minister) and that these three become Bank Council

members directly by virtue of the Act on the CNB (without the President

of the Republic appointing them Bank Council members). In addition, it

infers that the President's authority to appoint Bank Council members

without contrasignature, as laid down in Article 62, lit. k) of the

Constitution,1) relates solely to the four remaining Bank Council

members.

The Constitutional Court found this construction to be

in conflict with the Constitution in both mentioned respects.  Firstly,

pursuant to Article 62, lit. k) of the Constitution, 1)  the President

appoints not merely four but all seven Bank Council members without the

need for ministerial contrasignature.  Limitations on the President's

power of appointment to merely four of them cannot be attained merely by

interpretation of an ordinary statute, as the Constitution may be

modified solely by means of a constitutional act. Precisely in this

respect must it be emphasized that, under the present Constitution,

membership in the CNB Bank Council cannot arise other than by

presidential appointment on the basis of Article 62, lit. k) of the

Constitution. 1)  If the Constitution founds membership in the Bank

Council exclusively on the basis of appointment by the President, then

pursuant to the Constitution nobody may become a Bank Council member 

merely ex lege, as asserted by the government.  As a legal act of the

highest legal force, the Constitution cannot be re-interpreted on the

basis of an ordinary statute, rather an ordinary statute must always be

interpreted in conformity with the Constitution.

The

Constitutional Court further stated that a long-practiced constitutional

course of action which corresponds to a specific value and

institutional consensus on the part of constitutional bodies and which

has repeatedly confirmed a certain interpretation of a constitutional

provision, must be understood as a constitutional convention, which

cannot be disregarded in construing the Constitution.



CZECH REPUBLIC

CONSTIRTUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court decided on 26 June 2001 in a

proceeding pursuant to Art. 87 para. 1, lit. k) of the Czech

Constitution 2) and § 120 of Act No. 182/1993 Coll., on the

Constitutional Court, 3)  as amended (hereinafter Court Act), on the

proposal of the Prime Minister and the government of the Czech Republic

seeking a judgment that the 29 November 2000 decision of the President

of the Republic, in which he appointed Zdeněk Tůma Governor, and Luďek

Niedermayer Vice-Governor, of the Czech National Bank, required for its

validity the countersignature either of the Prime Minister or of a

member of the government entrusted by him with that task, decided: The

petition is rejected on the merits.
 



REASONING
 

On

20 April 2001, the Constitutional Court received a petition initiating a

proceeding, in which the Prime Minister and the government of the Czech

Republic sought a judgment declaring that the President's 29 November

2000 decision appointing the Governor and Vice-Governor of the Czech

National Bank (hereinafter CNB) required for its validity the

countersignature of the Prime Minister, or of a designated member of the

government.  By way of introduction, the petition stated that, by his

29 November 2000 decision, President Václav Havel appointed the Zdeněk

Tůma Governor of the CNB and Luďek Niedermayer the CNB Vice Governor,

without requesting that the Prime Minister countersign this decision, as

meant in Art. 63 para. 3 of the Constitution, 4)  and without

previously recalling Zdeněk Tůma from the office of CNB Vice-Governor or

Luďek Niedermayer from his office as a member of the CNB Bank Council .

. .
 


II.
 

. . . . .
 The petition initiating the procedure rests upon arguments under four headings:
on an argument concerning „monocratic“ elements in the status of the CNB Governor
on a comparative interpretation of other appointment powers pursuant to Art. 62 of the Constitution
on the interpretation of intent of the constituent assembly or legislature and ties to the preceding legal regime
by reference to principles of the parliamentary democracy form of constitutional state.


1.  

The appointment of members of the Bank Council to the office of CNB

Governor is effected by means of a single act of appointment.  Even the

petitioners proceed on the basis of this fact (p. 4 of the Reply), well

aware of the unforeseeable complications and potential dysfunctional

consequences which two separate and distinct acts of appointment would

bring about, both to the members of the Bank Council and to the CNB

Governor or Vice-Governors, even more so in the situation when no legal

obligation is laid down – as is the case with the Constitutional Court –

to select these three officials of the Bank Council from among the

ranks of already appointed members of that Council.  Despite the fact

that an additional act of appointment is not concerned, and thus, in

that sense, not even a separate power as meant by Art. 63 of the

Constitution, 4) the petitioners nonetheless take the position that the

status of the CNB Governor diverges from that of the other members of

the Bank Council to such an extent, that the Governor’s authority, which

arises from statute, justifies the use of the appointment procedure

pursuant to Art. 63 para. 2 4)  and not that pursuant to Art. 62 of the

Constitution.1)

According to the petitioners, although the

statute (§ 5 of the Act on the CNB) acknowledges the position of the

„the supreme directive body of the Czech National Bank“, the Bank

Council, its exclusive competence is, however, „defined merely by way of

example, an enumeration of matters of basic significance.  The Act on

the CNB makes nearly no reference to the issue of who is authorized to

act and take decisions in other matters“ (p. 6 of the Petition) and

according to the petitioners it is thus possible to judge that the

supreme instance is precisely the Governor, who is a monocratic organ

with independent competences and powers which significantly exceed the

authorities and competences resulting from membership in the Bank

Council, a collegial body (p. 4 of the Reply).

Neither assertion

is, however, in accord with the facts.  First of all, the Act on the

CNB does not define the competences of the Bank Council „merely by way

of example“, rather § 5 para. 1 formulates the main function of the Bank

Council; moreover it designates the Bank Council as a whole as the

„Supreme directive organ of the CNB“.  The second paragraph then

introduces the enumeration of a further set of Bank Council powers with

the words „further in particular“.  These words were not intended to

restrict the competence of the Bank Council, on the contrary they raised

the possibility of including within its competencies also other,

unenumerated matters.  The purpose of this provision is thus not to

restrict, rather to expand the scope of the Bank Council’s

decision-making capacity.

This legal rule/regulation alone

generally calls into question the status of the CNB Governor as a

„monocratic organ with independent decision-making power“.  However, not

even the petitioners’ specific references to the statutory powers of

the Governor, meant to substantiate the arguments in favor of his

monocratic position, do not hold water.

If we proceed from the

assumption that a monocratic organ is embodied by a person who himself

or herself acts and takes decisions as an organ, while a representative

of a collegial body acts only in the name of that body and is entirely

bound by its decisions, that any effort to conceive of the CNB Governor

as some sort of an independent, monocratic organ does not pass muster. 

The CNB Governor is one of the members of the Bank Council, as the CNB

Act provides that the Bank Council is composed of the Governor, two

Vice-Governors, and four additional leading CNB employees (§ 6 para. 1

of the CNB Act) 5) By statute, the Bank Council acting as a collegiate

body is the Bank's supreme directive body, thus individual Bank Council

members are not endowed with decision-making power.  As far as the

Governor is concerned, his status differs from that of the other members

by the fact that either he, himself, presides over the Bank Council, or

the Vice-Governor designated by him (§ 7 of the CNB Act), further the

CNB's external relations is conducted on its behalf, either by the

Governor himself or the Vice-Governor he designates (§ 8), and he is

authorized to participate, with the right to vote, in the government's

consultative meetings (§ 11).  Not even in this fact can one spot any

component of a monocratic status vis-a-vis the Bank Council, if he is

obliged to respect their views and convey their positions, s the fact

that in this case decision-making power is not concerned, only a

consultative function.  Both the petitioners, as well as others,

acknowledge to the Governor only the status within the Bank Council of

the first among equals.  As far as concerns additional powers of the

Governor, in the whole of the CNB Act, one can find only § 50, which

provides that, in the public interest, the Governor may relieve CNB

employees of the duty to maintain confidentiality in official Bank

matters.  This provision is the sole exception in favor of the Governor,

whereas the CNB Act contains a long series of provisions which conceive

of that, which the petitioners designate "other matters", as powers of

the Bank Council as as a collegiate body.

The petitioners further

argue that, pursuant to § 4 of Act No. 309/1999 Coll., on the

Collection of Laws and the Collection of International Treaties, the CNB

Governor has the power to sign legal enactments issued by the CNB and

promulgated in the Collection of Laws.  Not even this power can be

interpreted as an expression of the monocratic character of the CNB

Governor's decision-making power, since, just as in the case of the

promulgation of statutes, the Constitution prescribes the group of

persons who are to sign statutes, in this case as well, the CNB

Governor's signature has no constitutive significance.  It is his duty

to sign the promulgated norm, and his refusal to sign cannot be deemed

as an obstacle to the norm's validity.

. . . . .
For the

given reasons, the Constitutional Court cannot agree with the

petitionors, for these statutes do not assign the President any further

powers, nor do the positions of the Governor and Vice-Governors within

the Bank Council exceed, in comparison to the other members, the

framework of the Bank Council to such an extent that it would be

possible to conceive of them as separate offices, requiring a separate

appointment by the President.  The CNB Act does not expand the

President's right of appointment to include a new appointment power, for

the Constitution provides that the President appoints all members of

the Bank Council, without the Constitution specifying their particular

designations.  In contrast to other instances of appointment pursuant to

Art. 62, the Constitution does not need to state in detail how many

members there are and how they are designated.  This is done only in the

CNB Act, which provides that there shall be a Governor, two

Vice-Governors, and four other members.  Therefore, it specifies the

composition of the Bank Council.  Since the CNB Act was promulgated a

mere day after the Constitution itself and its text was known at the

time the Constitution was adopted, it can be presumed that those

adopting the Constitution would have formulated Art. 62, lit. k) 1) in a

different manner had they had in mind the introduction of a manner of

appointing the Governor which diverged from that of the other members.

2. 

The Constitutional Court also made a comparison of the modes of

appointment procedures in each case of the President’s powers under Art.

62 of the Constitution. It did so in view of the petitioners’ objection

that, Art. 62 lit. k) of the Constitution1)  provides merely that the

President appoints members of the Bank Council, whereas under lit. e) of

that Article it is stated that he appoints not only the Justices of the

Constitutional Court, but also its Chairperson and Vice-Chairpersons,

despite the fact that, in the latter case, the Chairperson and

Vice-Chairpersons are also Justices, and thus also members of the

Constitutional Court Plenum.  According to the petitioners’ conception,

the Constitution so provides due to the fact that the Chairperson and

Vice-Chairpersons have, in addition, further special competencies tied

to their office (p. 4 of the Petition).  The petition does not, however,

indicate why the Constitution does not proceed in a similar fashion

also in the case of the CNB Governor, to whom the petitioners also

attribute further special competencies tied to his office.  If that were

truly the case, then, according to the petitioners’ conceptions, the

Constitution would, in this case as well, have had to mention explicitly

the office of CNB Governor, which, however, it did not do.

It

is the Constitutional Court’s view that the reason for the use of

divergent appointing formula in Art. 62 must be looked for elsewhere. 

The reason why, in contrast to Art. 62, lit. k), 1)  there are different

rules for appointment in Art. 62, lit. e) 7) in the case of the

Constitutional Court, as well as in Art. 62, lit. j) 7) in the case of

the Supreme Auditing Office, and Art. 62, lit. a) 7) for the appointment

of the Prime Minister and of the other members of the government, is

found primarily in the fact that in all three of the above-mentioned

cases it was necessary to designate specially the person appointed to be

the head of that body, seeing as their appointment was governed by a

method which differed from that of other members of that body.  It must

also be added that, in order to name the members of these bodies, the

consenting actions of another body (Senate, Assembly of Deputies, Prime

Minister) is also required.  Thus, for example, in the case of lit. a),

the rules for the appointment and recall of the Prime Minister and those

for other members of the government differ.  As regards the other

members of the government, pursuant to Art. 68 para. 2 of the

Constitution, 8)  they may be appointed and recalled only on the

proposal of the Prime Minister.  The same applies in respect of the

members of the Constitutional Court [lit. e)]:  the Chairperson and

Vice-Chairpersons are differentiated because – in contrast to the

appointment of other Justices –  their appointment from among the

Justices of the Constitutional Court does not require the consent of the

Senate (Art. 84 para. 2 of the Constitution).  As concerns lit. j), it

speaks explicitly of the President and Vice-President of the Supreme

Auditing Office, since Art. 97 para. 2 states that these persons are

appointed by the President of the Republic on the proposal of the

Assembly of Deputies, whereas other members are elected by the Assembly

of Deputies on the proposal of the President of the Supreme Auditing

Office.  It is precisely due to the fact that the manner of appointing

the Governor and the Vice-Governors in no way differs from that of all

members of the Bank Council, that the text of Art. 62, lit. k) 1)  was

limited to the brief formulation:  „appoints the members of the Bank

Council of the Czech National Bank.“

In this connection, the

Constitutional Court considers it necessary to emphasis that there is a

basic difference between the way in which the Constitution regulates the

appointment power of the President of the Republic in relation to the

Chairperson and Vice-Chairpersons of the Constitutional Court and in

relation to the Governor and Vice-Governors of the CNB.  The

Constitution lays down that the consent of the Senate (Art. 84 para. 2)

is a pre-condition to the appointment of all Justices of the

Constitutional Court (thus, even those who are designated in Art. 62 as

the Chairperson and Vice-Chairpersons).  In this instance, the

Constituent Assembly was aware that if, in that case, a differing rule

is to be applied and the manner of appointment set down generally in

Art. 62, lit. k) 1)  is not to govern, the subsequent appointment of

Chairpersons and Vice-Chairpersons from among the existing Justices of

the Constitutional Court had to be laid down expressly in a

constitutional act, and not in an ordinary statute.

In contrast

to the Constitutional Court, in the case of the Bank Council, the

Constitution makes no distinction among the individual members of the

Bank Council.  If in this case, the Constitution does not explicitly

make a distinction between the manner of appointing the Governor and the

Vice-Governor from the manner, which it itself lays down, for all

members of the Bank Council, then unless the Constitution itself

expressly so permits, a different means of appointment for some members

of the Bank Council can not be deduced from the fact that the terms of

an ordinary statute provide that, apart from other members of the Bank

Council, the Governor and Vice-Governors are also members of the Bank

Council.

In contrast to the Constitutional Court, where the

President of the Republic selects the Chairperson and the

Vice-Chairpersons from among the already appointed Justices of the

Constitutional Court, in the case of the appointment of the CNB Governor

and Vice-Governors, the President is not obliged to appoint these

officers from among the existing members of the Bank Council.  In

contrast to its provisions governing the Constitutional Court, in this

case the Constitution does not presume two different appointment regimes

for the Governor and Vice-Governor on the one hand and for the other

members of the Bank Council on the other.  Even less can such a

conclusion be deduced from an ordinary statute, not to mention the fact

that this conclusion cannot be inferred from the mere enumeration (in § 6

of the CNB Act) of the Bank Council members.

In addition, there

exist rational reasons, within the logic of the CNB Act, why the

appointment of the Governor and Vice-Governors are dealt with  in § 6

paras. 2 and 3, separately from the appointment of the other four Bank

Council members.  They consist in the fact that the two paragraphs

contain differing conditions for appointment:  in contrast to the

Governor and Vice-Governors, the other four Bank Council members must be

appointed „from the ranks of leading employees „ of the CNB (it must be

noted that this constitutionally-questionable restrictive condition has

not been contested).  If the Constituent Assembly had intended that the

Governor and Vice-Governors and the other four Bank Council members be

appointed in two differing ways, or that the Governor and Vice-Governors

be appointed only after they had been named to the Bank Council by a

further appointment decision, making reference to their office in the

Bank Council, it would have had to express this desire by

differentiating in the Constitution, in the same way as in other cases

of nomination under Art. 62 of the Constitution.

It is an

elementary constitutional rule that, if two differing appointment

regimes are to be introduced in an area of constitutionally defined

exclusive presidential power, it is necessary that these two regimes be

defined directly in the text of the Constitution.  The fulfillment of

this precondition is a „conditio sine qua non“.

The conclusion

that there is only a single appointment decision in the case of all Bank

Council members is evidenced by the fact that they all have a common

six-year term of office (§ 6 para. 4 of the Act on the CNB), which is

not altered even in the case that individual members have a change of

status (for example, the subsequent assumption by a Bank Council member

of the office of Governor).  Should the President appoint the Bank

Council members on a certain date, the fact that he subsequently

appoints one of them the Governor does not cause that member’s term of

office to begin running anew.

In the view of the Constitutional

Court, a comparison of the modes of appointment procedure pursuant to

Art. 62 of the Constitution does not argue in favor of the government’s

petition either.


3.  The petitioners also refer to the

connections between the CNB Act and its predecessor legislation on the

Czechoslovak State Bank, pursuant to which the President appointed the

Governor on the proposal of the government, and the Vice-Governors on

the proposal of the Governor, following consultation with the federal

government.  It is alleged that, in a great many respects, this act was

the model for the CNB Act.  In the petitioners’ view, there are no

grounds for presupposing that the Constitution and the CNB Act would be

meant to diverge a statutory framework so recently preceding it to such

an extent that the government would be entirely excluded from the

process of appointing the Governor and Vice-Governors.

Documents

reflecting the genesis of the CNB Act are not, however, consistent with

the petitioners' view.  The Constitutional Court has ascertained that,

in the course of drafting the CNB Act, the Czech National Council

rejected the proposal for the reception of the preceding statutory

scheme.  As follows from the recording of the Czech National Council’s

17 December 1992 session, at which the government bill on the CNB was

debated, the assembly unanimously adopted the view of the

Constitutional-Legal Committee, expressing the position that:  „ . . .

in none of its provisions does the Constitution restrict the President’s

appointment power in any manner whatsoever“ (Recording of the 11th

Session CNC of its VIIth Electoral Term).  In his reply to the petition

initiating this conflict of competence proceeding, the President stated,

in relation to this issue, that this opinion, expressed by the then

competent constitutional officials, is supported even by current

constitutional officials, and he refers, in this regard, to the speech

of the current Deputy Prime Minister for Legislation made before the

Plenum of the Senate on 7 August 2000, in which he characterized the

appointment of Bank Council Members, i.e., the Governor, Vice-Governors,

and other members, as the „exclusive competence of the President,

unrestricted by the need for contrasignature“ (stenographic record of

the Senate for 7 August 2000).

As regards the issue of the

connection to the previously existing rules, the Constitutional Court

notes that, in drafting the Czech Act on the CNB, without doubt the

legislature proceeded from a different constitutional situation, for the

Act on the Czechoslovak State Bank was adopted previously as a kind of

quasi-constitutional regulation, comparable to an organic law and above

all in a federal state, in which the cooperation of a collegial body,

i.e., a government formed from representatives of both the Czech and

Slovak sides, represented an institutional counterweight to the

appointment power of the President of the Republic, the sole independent

(of party influence) person.  When the CNB statute was being drafted

following the collapse of the federation, these considerations lost all

significance, or at least were deprived of their original weight.

The interpretation of Art. 62, 1)  to the effect that it grants the

President of the Republic the right to appoint all members of the Bank

Council without the need for contrasignature, has been respected and

followed in practice without interruption since 1993 until the debate,

in the year 2000, on the act amending the CNB Act.  This interpretation

has been confirmed, and is even gradually developing into a

constitutional custom.  It is well known that in a constitutional state

constitutional customs – conventions – have great significance precisely

due to the fact that they create from the constitution a functional

whole and bridge the gap between the mere expression of constitutional

principles and institutions and the variability of constitutional

situations.  In a democratic law-based state, it is scarcely imagineable

to call into doubt, by the expedient of a distorted interpretation, the

interpretation of the constitution and constitutional customs

corresponding thereto, respected and uncontested the entire time from

the inception of the Constitution, and with them the whole existing

practice, including a host of decisions which had never until that time

been attacked.

It is not essential to verify the extent to which

the formal requirements for the formation of “constitutional customs”

have been met, rather the mere circumstance that, for a period of more

that eight years on the basis of a value and institutional consensus on

the constitutional plane, one means of proceeding has been adopted in

practice, which without the resistance of any of the constitutional

bodies, has repeatedly and unequivocally confirmed that interpretation

of Art. 62, lit. k) of the Constitution 1) which accords to the

President the exclusive power to appoint the Governor and the

Vice-Governors of the CNB, hence a power not requiring the Prime

Minister’s contrasignature.

Of no less importance is the

circumstance that, in spite of the legal reservations to the procedure,

which led the Prime Minister and the government to bring the matter to

the Constitutional Court only on 20 December 2000, these institutions de

facto recognized and at the present time continue to recognize a

situation which is, according to their assertion, in conflict with the

competencies laid down in the Constitution.  This aspect is reflected in

the fact that the petitioners contested only the appointment of the

Governor and that of one of the Vice-Governors, while overlooking the

appointment of the second Vice-Governor, and this despite the fact that

his appointment, according to the petitioners’ position, was also

effected in a manner which they designate as unconstitutional and

invalid.  If then the government, by its other actions as well,

acknowledged the contested appointments, which fact follows, for

example, from the correspondence of the Prime Minister himself, of the

deputy prime ministers, and of individual ministers, from invitations to

take part in meetings of the government, as well as from further acts

evincing agreement, an undesirable condition of uncertainty of legal

relations arises, the risks of which, to a decisive degree, are not

borne by the parties to this dispute, rather by individuals and legal

persons whose rights have been affected by decisions, not to mention the

uncertainty concerning the status of persons occupying particular

offices to the domestic public in general, but especially in respect of

foreign relations.

Despite the fact that the Prime Minister and

12 other members of the government unanimously decided, in Government

Resolution No. 1210 of 28 November 2000, that “they do not consent to

the Prime Minister contrasigning the President’s decision appointing

Zdeněk Tůma Governor of the Czech National Bank and Luďek Niedermayer

Vice-Governer of the Czech National Bank”, the Prime Minister and the

other members of the government continue to deal with Zdeněk Tůma as the

CNB Governor.  Thus, in his letter of 28 February 2001, for example,

Prime Minister Miloš Zeman informed Governor Zdeněk Tůma that “as

Governor of the Czech National Bank” he will be informed of meetings and

invited to take part therein.  From this follows as well the

recognition of the Governor in certain of his duties, such as in

relation to the CNB's emission duties, hence also Zdeněk Tůma’s right to

sign newly issued banknotes, even despite the fact that, by its refusal

to consent to his appointment, the government has cast doubt upon the

legal validity of that, as well as others of his acts, even in the case

that the duty of contrasignature was recognized as constitutional.

Not only the practice up till then, but also the subsequent formulation

of the amendment to the CNB Act, No. 442/2000 Coll., clearly testifies

to the fact that the legislature was not proceeding from the assumption

that the acts appointing the CNB Governor and Vice-Governors require

contrasignature.  The petitioners' argument that the President has a

duty to submit the named appointment act to the Prime Minister for his

contrasignature is substantiated by deducing that duty from the wording

of § 6 para. 2 of the CNB Act, 5) which provides that the President

appoints the CNB Governor and Vice-Governors.  It must be pointed out

that § 6 para. 2 of the amendment to the CNB Act 5)  contained the exact

same formulation, from which the government's interpretation would lead

to the conclusion that the contrasignature requirement continues to

apply pursuant to the new wording as well.  On the other hand, however,

in § 6 para. 3 5)  as amended, the legislature newly provided that the

government should propose the candidates for Governor and

Vice-Governors.  It is inconceivable that the legislature, while tying

the President's decision to the government's preceding proposal, would

still insist on the Prime Minister subsequently contrasigning the act of

appointment, a conclusion which would necessarily follow from the

government interpretation of § 6 para. 2. 5) It is thus clear that the

legislature conceived and conceives of § 6 para. 2 5) merely as an

enumeration and designation of the persons who are members of the Bank

Council.

4.  The government also made reference in its arguments

to the principles of the law-based state, the principle that all state

authority emanates from the people and that state authority is to serve

all citizens, as well as to the conception of the Constitution grounded

on the idea of parliamentary democracy.  It argued that from these

principles one must necessarily draw the conclusion that decision-making

by state bodies that bear political responsibility should take priority

over decision-making by state bodies that do not bear responsibility

for their decisions.  It further concludes that, in case a matter should

be considered controversial, then preference should be given to the

interpretation that the President’s decision is one pursuant to Art. 63

of the Constitution 4) (p. 3 of the Petition).  

As a general

matter, these assertions can be agreed with.  Nonetheless one cannot but

object that, even in a democratic law-based state with a parliamentary

form of government, the requirement of governmental contrasignature may

be dispensed with in cases where special reasons justify the protection

of an institution which, according to the Constitution, should, in the

main lines of its activities, act independently of the government. 

Since the requirement of contrasignature would, at the least, enable the

government to decide on the composition of the Bank Council.  One

component of the guarantee of the CNB’s independence is that the power

of appointment is in the hands of a non-partisan President, although

after consultation, but not directly dependent on the agreement of the

government, formed of representatives of one or more political parties. 

The independence of the CNB is a constitutional value, one which

follows both from Article 98 of the Constitution 6) („interventions into

its affairs shall be permissible only on the basis of statute“) and

from its placement into the separate Chapter Six of the Constitution, as

well as from Article 62, lit. k) of the Constitution 1) and from the

Act on the CNB, above all from 9 para. 1 of this Act („in safeguarding

its main goals, the CNB shall be independent of instructions from the

government“).

Without doubt it is possible, while keeping within

the confines of a democratic, law-based State, to conceive even of such

a formulation of the status of a central bank as would contain more

elements of cooperation and coordination with the government (such as is

the case with the German Federal Bank).  Nonetheless, in each country

it is a matter for the constituent assembly to consider the design of

these relations in view of the situation and the needs of its country,

and the interpretation of the act on the national bank must also be

subordinate to such conception as is selected for the constitution.  At

the same time, in a constitutional state the canon applies that an

ordinary statute may not be of greater force than the constitution. 

Should the constitution lay down a certain rule, exceptions to that rule

are permitted only on the precondition that it is expressly permitted

either by the constitution itself or by a subsequent constitutional

act.  It is not possible, on the basis of the provisions of an ordinary

statute, to reinterpret the constitution to a form which it manifestly

does not have.  The interpretive process proceeds in the opposite

direction, always from constitutional documents/instruments to statutes,

unless the constitution itself expressly lays down an exception.

The Act on the CNB does not introduce any further presidential

appointment power beyond that which is contained in Art. 62, lit. k) of

the Constitution. 1)   It merely declares the composition of the Bank

Council as far as concerns the number and designation of its members. 

Since the government’s interpretation does not deny the President’s

exclusive authority to appoint all members of the Bank Council, the

recognition of the claim to contrasignature when the Governor and

Vice-Governors are appointed would lead to the solution which would

enable the head of State, on the one hand, to independently appoint all

members of the Bank Council and then the Prime Minister, on the other

hand, to refuse his consent to the Governor and Vice-Governor, moreover

subsequently, which in and of itself contains a potential for

dysfunction greater than, for example, any solution involving

appointment on the proposal of the government, in which case prior

discussion and agreement would be imperative.  It must be borne in mind

in this connection that, pursuant to Art. 62, lit. k) of the

Constitution, 1) the President of the Republic appoints all members of

the Bank Council, and, since pursuant to the Act on the CNB the Bank

Council has seven members, that he thus appoints all seven Bank Council

members, and that he is not restricted in this respect.  Should the

appointment of the Governor and Vice-Governors, to which § 6 para. 2 of

the Act on the CNB 5) refers, be understood as appointments separate

from that in Art. 62, lit. k) of the Constitution, 1) thus subject to

Art. 63 of the Constitution, 4) it could occur that the government would

refuse its consent to the appointment as Governor of certain of the

seven Bank Council members or even the appointment as Governor of a

person who is not a Bank Council member at all.  Since, however, in the

petitions’ conception, the Governor is a Bank Council member, in such a

case, certain of the seven already appointed Bank Council members would

have to leave their office, as, according to the Act, the Bank Council

shall have seven members.  Certainly such member could, if he himself

wished, free up a place for the newly appointed Governor.  He could be

recalled, however, only if one of the conditions laid down therefore in §

6 para. 6 of the Act 10) on the CNB is met, which would not ordinarily

occur.

The conception proposed by the government is, thus,

unacceptable, not only in view of Art. 62, lit. k) of the Constitution,

1) which does not provide for separate appointment first as a member and

then as Governor or Vice-Governor, but also in view of the fact that

this is a solution which conflicts with the principle of proportionality

of legal regulation and the principle of legal certainty and, that from

the constitutional perspective, these provisions could, due to their

schizoid components, be potentially dysfunctional.

Evidently

the petitioners are aware of these circumstances, and they therefore

wish to maintain their conception that the Governor and Vice-Governors,

on the one hand, and the remaining members of the Bank Council on the

other hand, are appointed in a divergent manner, while at the same time

averting the obvious consequences thereof, the appointment of the

Governor and Vice-Governors in a divided (double) manner, first to their

office as the Governor and Vice-Governor and then as members of the

Bank Council.  They accomplish this aim, however, at the expense of an

interpretation which is in conflict with the Constitution.  In the

petitioners’ view, the Governor and Vice-Governors of the CNB should be

appointed with the contrasignature of the Prime Minister (pursuant to

Art.  para. 3, 4 of the Constitution 4)) and that they become members of

the Bank Council „directly on the basis of the statute (ex lege)“,

whereas the other four members of the Bank Council are appointed by the

President of the Republic pursuant to Art. 62, lit. k 1)) (i.e., without

contrasignature).

However, seeing as how the Constitution

provides that the President of the Republic appoints all members of the

Bank Council without exception, moreover, in the manner laid down in

Art. 62, lit. k), 1)  the Governor is, in fact, not a member of the Bank

Council directly on the basis of the Act on the CNB, but first and

foremost and directly on the basis of the Constitution itself.  Even if

the Act on the CNB provides that the members of the Bank Council shall

be the Governor, the Vice-Governors, and other members, this does not

exclude the Governor and both Vice-Governors from the ambit of the

President’s appointment power as defined in the Constitution (such an

exception cannot even be made by an ordinary law).

The truth of

the matter is that the present Constitution makes no provision for

membership in the Bank Council which would not arise on the strength of

appointment by the President pursuant to Art. 62, lit. k) of the

Constitution, 1)  but solely and directly on the basis of law.  It is

precisely this conception which is unconstitutional, the conception

according to which, as the petitioners assert in their reply, the

President of the Republic appoints, on the basis of Art. 62, lit. k) 1) 

only the other (four) members of the Bank Council who „remain“

following the appointment of the Governor and Vice-Governors.  This

conception is in conflict with the cited Art. 62, lit. k) of the

Constitution1)  according to which the President of the Republic

appoint, without the need for contrasignature, not only some, but all,

Bank Council members.

The petitioners interpret the appointment

power laid down in the Constitution as being restricted in three cases,

moreover by means of the interpretation of an ordinary statute which, in

the petitioners’ conception, renders Art. 62, lit. k) 1) inapplicable

for the appointment of the Governor and Vice-Governors and applicable

only for the „four other members of the Bank Council“.  It should be

added in this regard that the spirit of Art. 63. para. 2 of the

Constitution 4) is to provide for the possibility of, and lay down

conditions for, the expansion of presidential powers, and not their

restriction.  This point is buttressed by the wording in the text

concerning the right of the President to exercise "also" those, that is

to say, further, new powers, which although not expressly stated in the

text of the Constitution, are nonetheless introduced in a statute.

It should be added that Art. 98 para. 2 of the Constitution 6) also

speaks against the petitioners’ interpretation, since, as far as

concerns the President’s appointment power, it entrusts to an

implementing statute on the CNB the regulation only of „additional

details“.  Such „additional details“ can be, for example, statutory

provisions prescribing that the members of the Bank Council shall be the

Governor, two Vice-Governors, and four other members.  The introduction

of the requirement that the Prime Minister give his contrasignature to

the appointment of three of the seven Bank Council members can in no

case be considered as details, rather as considerable restrictions on

the constitutional prerogatives of the President, as guaranteed by Art.

62, lit. k) of the Constitution. 1)   Since Art. 98 para. 2 of the

Constitution 6) must, at the same time, be understood as the

constitutionally prescribe framework which the implementing statute on

the CNB may not overstep, the effort to deduce a contrasignature

requirement from the text of the Act on the CNB can only be branded as

unconstitutional for it does not concern details, rather a fundamental

modification of constitutional dimension.

.  .  .  .  .  .  

Neither does the Constitutional Court view as meritorious the objection

that, prior to appointing them to the offices of Governor and

Vice-Governor, the President should have recalled both members of the

Bank Council from the positions in the Bank Council they held at the

time.  This shift in offices occurred during their six-year term as

members of the Bank Council, yet none of the conditions laid down in § 6

para. 6 of the CNB Act10) were met, without which the recall procedure

can in no case be validly employed.  The entire conception of that Act

confirms the Constitution’s aim to establish the CNB as an institution

independent of the government.  Should the requirements for recall be

extended also to the mentioned internal shift within the Bank Council,

it would be subject to the government’s consent and would, as a result,

become an element threatening its independence from the government. 

Therefore, as the Constitution and laws stand at present, we cannot but

agree with the manner in which, on 29 November 2000, the President

appointed Zdeněk Tůma, „as a presently sitting member of the CNB Bank

Council“, as Governor with the proviso that „on the same day his current

office as CNB Vice-Governor lapses“.  The appointment of Luďek

Niedermayer as Vice-Governor, without recalling him from his office as a

Bank Council member, can equally be viewed as a solution that is

entirely proportionate, both constitutionally and legally.  Neither in

his case did a new six-year term of office begin to run as a consequence

of his appointment.

Art. 62 lit. k) of the Constitution1) is

decisive for the determination of this issue in the sense that it

defines the Bank Council as an undifferentiated collective of all its

members, without more precisely stating any differences in their

status.  It was only a norm of lower legal force, the CNB Act, that

provides that all Bank Council members are appointed for a six-year term

and that there are seven members:  the Governor, two Vice-Governors,

and „four additional members“.  If the Act provides for appointment to

office for a set period of time, i.e., six years altogether, this term

cannot be exceeded.  During this term of office, the Act draws no

distinction among the Bank Council members.  The Bank Council is a

collegial governing body, which decides as a body and in which the

Governor is merely „primus inter pares“.  Should a person be appointed

as Governor who is not as yet a Bank Council Member, this appointment

results in a new, six-year term beginning to run; should, however, a

person be elevated to the position of Governor who is already a Bank

Council member and for whom a part of the six-year term as a member has

already run, his appointment as Governor does not give rise to a claim

to the running of a new, some sort of „gubernatorial“, six-year term of

office nor to the possibility of formal recall in the sense of § 6 para.

6 of the CNB Act, 10) which exhaustively designates the circumstances

in which a member can be recalled from office. . . . .
 

In

consideration of all the above-stated reasons, the Constitutional Court

decided on the basis of § 124 para. 1 of Act No. 182/1993 Coll., on the

Constitutional Court, to the effect that that the President is

competent to issue the decision which he took in this matter, as stated

in the petition initiating the procedure in this conflict of

competence.  Accordingly, it has rejected on the merits the petition of

the Prime Minister and the government.

Brno, 20 June 2001
 

 



Dissenting Opinion
of Justices V. Güttler, M. Holeček, I. Janů, Z. Kessler and J. Malenovský

.  .  .  .  .  .  

It is the relations between the CNB and the government that are

decisive.  After all, in carrying out its duties, the CNB indirectly has

some impact on the government's activities.  The Constitutionimplicitly

and the CNB Act explicitly (§§ 9-11) regulate the forms of cooperation

between the government and the CNB.  Thus, the government has legitimate

interest in ensuring that its work with the CNB runs smoothly.

If follows from the constitutional idea of checks and balances between

constitutional organs that, without more, one cannot deduce from the

government's duty to cooperate with the CNB a further duty on the part

of the governmment to accetp as the central partner in this cooperation

just any person, thus even a person whom another constitutional body

(the President of of the Republic) has unilaterally designated.  In the

absence of an explicit constitutional rule testifying to the contrary, a

relation of inequality between two constitutional organs cannot be

presumed.

It is not decisive that, in his relations to the

government, the Governor is obliged to respect the Bank Council's views

and "to convey its position" as is asserted in the opinion of the Court,

but on the contrary, that the Governor is a person who enters into the

realm of the government's reserved powers (he takes part in their

meetings and has an advisory vote), and who would be imposed upon the

government by unilateral decision of another constitutional organ.

From a certain point of view, the relations between the government and

the President of the Republic are comparable to the relations between

States.  In the latter case, the subjects are in principle equal in the

full sovereignty which appertains to them.  In the former case, there

are subjects which are in principle equal in the sense that each of them

is exercising a part of the State's sovereign powers not derived from,

and independently of, other subjects.  A parallel can, thus, be drawn

between these two types of relations, and an analogia iuris can be

looked for.  States which maintain between themselves diplomatic or

consular relations (which work together in political or non-political

fields) are not obliged to accept as the head of a diplomatic or

consular mission (even if just one who conveys the attitude of the

sending State) just any perons whom the sending State would impose upon

it.  The sending State is obliged to request separate agrément

(exequatur), which the receiving state is entitled to refuse without

communicating the reasons for its refusal.  A person which enters

directly into the of power of the second subject, is thus subjected to a

special regime.  This analogia iuris testifies to the presumption of

the necessity for countersignature for the appointment of the CNB

Governor (Vice-Governor).  The presumption of equality could be overcome

by an explicit provision, which, however, is not in the Constitution.

.  .  .  .  .  .  

In view especially of the above state arguments, but also in view of

the argument that the President of the Republic is not answerable for

the performance of his duties (Art. 54 para. 3 of the Constitution), we

consider that the President's appointment power under Art. 62 lit. k)

1)  must be interpreted restrictively, thus, so as not to include the

power to appoint the CNB Governor and Vice-Governor.  This power is

derived from the CNB Act and thus requires countersignature.

Naturely, the requirement that the Prime Minister countersign the act

appointing the CNB Governor and Vice-Governors does not constitute an

intervention into the CNB's independence in the exercise of its

constitutional function as guaranteed by Art. 98 of the Constitution. 6)

After all, the initiative for the appointment of the high officials of

the Bank Council comes from the President, and not the Prime Minister. 

Thus, a government that is just entering into office, and having a

different political orientation, is not competent to instigate a new

appointment process.
 

 


Concurring Opinion
of Justices JUDr. Pavel Hollander and JUDr. Vladimir Jurka

. . . .

Inasmuch as two interpretations of the pertinent (concrete) provisions

of the Constitution vie with each other, each with its own ration and

nether of which can be considered as contra constitutionem, clearly then

it is appropriate to lean toward that interpretation which is supported

by constitutional practice, in other words, to respect a constitutional

tradition that has manifestly already been established in this way.

The Constitutional Court decided this case eight and one half years

after the Constitution and the CNB Act came into effect.  In this

connection, one cannot overlook the fact that in all cases up till now

the Governor has been appointed by the President without

contra-signature, which was also the case (with two exceptions) for the

appointment of all Vice-Governors.  Further, one cannot ignore the fact

that, in none of these instances did either the government (or the Prime

Minister) submit to the Constitutional Court a petition initiating a

conflict of competence proceeding against the President concerning the

extent of his competence.  Finally, neither can we disregard the fact

that the sole reason for changing the rules for the appointment of the

CNB Governor and Vice-Governors so as to make it on the proposal of the

government, (as contained in the amended CNB Act and the amendments to

the Constitution, submitted on 17 September 1999 to the Assembly of

Deputies of the Czech Parliament by a group of Deputies - Ivan Langer,

Petra Buzková, Eva Dundáčková, Zdeňek Jičínský, Jitka Kupčová, and Jan

Zahradil) was the conviction, generally then shared by the Deputies

voting on the amended CNB Act and the amendments to the Constitution,

that such contra-signature was not required.

The issue which we

considered fundamental is that whether, in a system of written

constitutional law, constitutional customs praeter constitutionem can

come into being and, if so, which conditions must be fulfilled in order

to declare that they exist.

The Constitutional Court has already

spoken on an issue related to the given problem in its judgment Pl.

33/97, in which it declared the following:  "A modern, democratic,

written constitution is a social contract, by which the people,

representing the constituent power (pouvoir constituant), constitute

themselves in one political (state) body and enshrine the relationship

of the individual to the whole and the system of state institutions.  A

document institutionalizing the set of fundamental, generally-accepted

values and molding the mechanism and process of the formation of

legitimate power decisions cannot exist out of the context of

publicly-accepted values, conceptions of justice, as well as conceptions

of meaning, purpose, and the manner of functioning of democratic

institutions.  In other words, it cannot function without a minimum

consensus with respect to values and institutions.  The conclusion

resulting therefrom for the field of law is that, even in a system of

enacted law, basic legal principles and customs are also sources of

general, as well as of constitutional, law. . . .The acceptance of

further sources of law apart from written law (in particular, general

principles of law) raises the issue of recognizing their existence.  In

other words, it raises the issue whether their formulation is an

arbitrary matter or whether it is possible to lay down means of

proceeding for their formulation which, to a certain degree, can be

objective…    A typical example of the definition of unwritten legal

rules of human conduct can be found in customary law.  In order for a

legal custom to arise, it is required that there be a general conviction

of the need to observe the general rule of conduct (opinio

necessitatis) and, in addition, its continuance over an extended period

(usus longaevus, resp. longa consuetudo)."

We are of the view

that the inception of constitutonal customs praeter constitutionem is a

regular and natural part of the functioning of democratic constitutional

systems within the European continental legal culture, that is within

the tradition of written constitutions and written law.  This phenomena

has also been reflected in the jurisprudence of constitutional courts. 

An example that may be cited in this regard is the judgment of the

German Federal Constitutional Court (BverfGE, 72, 189) in which the

Court accepted the activism of the joint committee of the Bundestag and

the Bundesrat praeter constitutionem, moreover acknowledging its status

as a constitutional custom.

In the matter under consideration,

it must be confirmed whether the constitutive elements of a

constitutional custom, which are analogous to the constitutive elements

of general legal customs, have been met.  We consider that the general

conviction (opinio necessitatis) concerning the President’s authority to

appoint the CNB Governor without contrasignature, can be demonstrated

in part by the absence, in preceeding instances of appointments, of any

attempt on the part of the government to bring before the Constitutional

Court a conflict of competence against the President, and in part by

the intention motivating the adoption of Act No. 442/2000 Coll.,

amending Act No. 6/1993 Coll., (similarly the intention behind the

amendment to the Constitution submitted to the Assembly of Deputies of

the Czech Parliament on 17 September 1999 . . . . ).  Sec. 6 para. 3 of

the amended CNB Act 5) limited the President’s power of appointing the

CNB Governor and Vice-Governors which demonstrates that the act

necessarily proceeded from the assumption that the President's exercise

of this power is not subject to contra-signature.

In our view,

long-term acceptance of a spontaneously formed rule (custom), i.e., the

condition of longa consuetudo, is met in this case, not only due to the

length of time the existing practice has persisted, but also due to the

frequency with which appointments were made.  The two exceptions (the

two appointments of Vice-Governors) cannot change this reality.  The

fact that these constituted exceptions to the established practice

demonstrates the general conviction reflected in the aim of the

amendments adopted to the CNB Act, No. 442/2000 Coll.

Finally,

two important matters must be mentioned in connection with the

acknowledgement that constitutional customs can also be accorded the

status of sources of constitutional law.  The first is the immense

responsibility of all constitutional bodies for their application of the

constitution, the necessity for them to be aware of the consequences of

their conduct, being cognizant not merely of the context in which a

matter is decided at any given moment, but also in view of the formation

of the country’s constitutional system.  The second is the boundary of

acceptability of constitutional customs, which is in principle laid down

by Article 9.2 of the Constitution.  In that respect, it cannot be said

in the case at hand that the formation of a constitutional custom in

the course of appointment of the CNB Governor and Vice-Governors affects

any of the essential requirements of a constitutional law-based state.
 

For

the given reasons, we consider that, since the Constitution came into

effect, in constitutional practice a constitutional custom has developed

whereby the President appoints the CNB Governor and Vice-Governor’s

without the contra-signature of either the Prime Minister or his

responsible minister.  It is our opinion that, at this point, changes to

the existing constitutional situation can be effected solely by

decision of the Constitutent Assembly, that is, by amendment to the

Constitution.
.  .  .  .  .
 



Pl. US 14/01
Overview of the most important legal regulations

1.  

   Article 62 of the Constitution of the Czech Republic include the

enumeration of presidential powers inclusive letter k) which stipulates

that the President shall appoint members of the Banking council of the

Czech National Bank.
2.      Article 87 para. 1 of the Constitution

of the Czech Republic stipulates under letter k) that the Constitutional

Court has jurisdiction to decide jurisdictional disputes between state

bodies and bodies of self-governing regions, unless that power is given

by statute to another body.
3.      Sections 120 - 125 of the Act

182/1993 Coll, on the Constitutional Court, regulates the procedural

aspects related to the Proceedings on Jurisdictional disputes between

State bodies and the Bodies of Self-Governing Regions.
4.     

Article 63 of the Constitution of the Czech Republic lists another

presidential powers in addition to powers in the Article 62. Para. 2 of

this Article stipulates that the President of the republic also

possesses powers which are not explicitly enumerated in constitutional

acts if a statute so provides. Under para. 3, in order to be valid,

decisions of the President issued pursuant to paragraphs 1 and 2 require

the countersignature of the Prime Minister or a member of the

government designated by him. Para. 4 states that the government is

responsible for the decisions of the President that require the

countersignature of the Prime Minister or a member of the government

designated by him.   
5.      Section 6 para. 1 of the Act 6/1993

Coll. stipulates that the Bank Council shall consist of seven members,

comprising the CNB Governor, two Vice-Governers and four other Bank

Council Members. Pursuant to para. 2, the Governer, Vice-Governors and

other members shall be appointed and relieved by the President of the

Republic. Para. 3 stipulated that the Governor, Vice-Governor and other

members shall be proposed by the government; this paragraph was annulled

on the day of announcement of the judgment Pl. US278/2000 in the

Collection of Laws.  
6.      Article 98 para. 1 of the Constitution

of the Czech Republic states that the Czech National Bank shall be the

state central bank, its primary purpose shall be to maintain the

stability of the currency and intervention into its affairs shall be

permissible only on the basis of the statute. Under para. 2 the bank's

status and powers, as well as more detailed provisions, shall be set

down in a statute.   
7.     Pursuant to Article 62 letter a), the

President of the Republic appoints and recalls the Prime Minister and

other members of the government and accepts, letter e) appoints Justices

of the Constitutional Court, its Chairpersons and Vice-Chairpersons,

letter j) appoints the President and Vice-President of the supreme

Auditing Office.
8.      Article 68 para. 2 of the Constitution of

the Czech Republic stipulates that the President shall appoint the Prime

Minister and, on the basis of her proposal, the other members of the

government and entrust them with the management of the ministries and

other offices.
9.     Article 84 para. 2 of the Constitution of the

Czech Republic stipulates that the justices of the Constitutional Court

shall be appointed by the President with the consent of the Senate.
10.  

 Section 6 para. 6 of the Act 6/1993 Coll., in the wording of later

regulations, enumerates list of exhaustive reasons for the remove of the

Bank Council member, i.e. when he has been convicted of a crime, he

fails to perform his duties according the Bank Council decision, on the

basis of his own request delivered to the bank Council or he performs

the office incompatible with the position of the Bank Council Member.