2002/04/30 - Pl. ÚS 24/01: TV Electoral Committee

30 April 2002

HEADNOTES

The

establishment of the Electoral Committee consistently followed the

principle of proportional representation, by the application of which

the Chamber of Deputies itself is formed.  It can then justifiably be

expected from this fact that, within the bounds of its competence, even

the Electoral Committee when electing members of the Council of Czech

Television, will decide in a manner which respects the distribution of

political forces in the lead of the Chamber of Deputies.  The

establishment of the Electoral Committee (the introduction of § 46a into

the Standing Orders of the Chamber of Deputies by Act No. 39/2001

Coll.) is then evidently motivated exactly by the intention to select an

appropriate number of candidates of the Council of Czech Television in

such a way that in the election of the members themselves of the Council

of Czech Television, the Chamber of Deputies had sufficient room for

discussion and careful consideration, relating to individual candidates,

which alone can lead to rational conclusions justifying their

election.  In view of the foregoing, then, there is in a certain sense

what is termed a „pre-selection“ of candidates for the Council of Czech

Television, but one made by a body which has been created by the Chamber

of Deputies in the manner described above.  This manner cannot, in its

final outcome be designated as unconstitutional, not even from the

perspective of the objected Art. 21 para. 1 of the Charter, which when

respected even in the smallest degree is certainly an important

principle, that „Citizens have the right to participate in the

administration of public affairs either directly or through the free

election of their representatives.“  In view of the foregoing,

therefore, the Constitutional Court has come to the conclusion that the

manner of constituting the electoral commission does not bear the

characteristics of unconstitutionality so that it merely remains to

consider the objections raised in the indicated respects as unfounded.

In view of the foregoing and in consequence of the respect for the

principle of proportional representation in the constitution of the

Electoral Committee, one cannot come to the conclusion that Art. 21

para. 4 of the Charter has been violated nor that citizens have been

denied access, on an equal basis, to any elective and other public

office (membership in the Council of Czech Television).  Once again the

evident intention of the Chamber of Deputies should be reiterated, to

form its body (while respecting the principle of proportional

representation), which evidently created the conditions for making more

effective the Chamber of Deputies‘ activities when electing members of

the Council of Czech Television.  The maintenance of equal conditions

for citizens in terms of access to any elective or other public office

can be found in their equal opportunity, by proposing qualified persons,

to compete for the office of member of the Council of Czech Television,

and that from the perspective of the existence and competence of the

Electoral Committee established by the Chamber of Deputies on the basis

of the principle of proportional representation.

 


CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


On

30 April 2002, the Plenum of the Constitutional Court in the matter of

the petition of a group of Senators of the Czech Parliament proposing

the annulment of § 46a of Act No. 90/1995 Coll., on the Standing Orders

of the Chamber of Deputies of the Parliament of the Czech Republic, as

amended by Acts No. 47/2000 Coll. and No. č. 39/2001 Coll., decided as

follows:
 

The petition is rejected on the merits.
 

 


REASONING

I.
 

On

14 August 2001, the Constitutional Court received the petition of a

group of 23 Senators of the Parliament of the Czech Republic proposing

the annulment of § 46a of Act No. 90/1995 Coll., on the Standing Orders

of the Chamber of Deputies, as subsequently amended, with the reasoning

that, in their view the provision in question is in conflict with Art. 4

para. 3 and Art. 21 paras. 1 and 4 of the Charter of Fundamental Rights

and Basic Freedoms (hereinafter "Charter").  The petition presents the

following arguments:  Act No. 483/1991 Coll., on Czech Television (as

subsequently amended by Acts No. 36/1993 Coll., No. 253/1994 Coll., No.

301/1995 Coll., and No. 39/2001, hereinafter "Act on Czech Television ")

lays down the conditions, as well as the procedures, for the election

of the Council of Czech Television, that is, a body which is elected by

citizens (in fact, by the Chamber of Deputies of the Parliament of the

Czech Republic) for the purpose of supervising the activities of Czech

Television.  Pursuant to § 4 para. 2 of the Act on Czech Television

candidates are elected from among citizens on the basis of the proposals

of organizations and associations representing cultural, regional,

social, trade-union, employer, religious, educational, scientific,

ecological, and ethnic interests.  Proposals shall be submitted to the

Chamber of Deputies of the Parliament of the Czech Republic (hereinafter

"Chamber of Deputies"), which according to the Act on Czech Television

is authorized to elect and recall individual members of the Council of

Czech Television.  Everybody who meets the criteria in the Act on Czech

Television can be elected a member of the Council of Czech Television,

that is, anyone who has legal capacity, has permanent residence in the

Czech Republic, and has a faultless character, as is laid down in § 4

para. 3 of the Act on Czech Television. Part Three, Article IV, point 2

of Act No. 39/2001 Coll., which amends the Act on Czech Television, as

amended by subsequent enactments, and on the amendment to other acts,

also amended (supplemented) Act No. 90/1995 Coll., on the Standing

Orders of the Chamber of Deputies, as amended by Act. No. 47/2000 Coll.,

to the effect that an Electoral Committee shall be created for the

purposes of the election of members of the Council of Czech Television. 

In harmony with § 46a of the Act on the Standing Orders, the Electoral

Committee of the Chamber of Deputies is then obliged to select, from

among the candidates proposed for membership in the Council of Czech

Television, three times the designated number of members in the Council

of Czech Television, on the assumption that the number of candidates

proposed by authorized organizations and associations, meeting the

requirements under the Act on Czech Television, is more than three times

higher than the number that should be elected as members of the Council

of Czech Television.  The group of Senators, petitioners, found that

the current version of the contested provisions of § 46a of the Act on

the Standing Orders are in conflict with:

a. with Art. 21 para. 1

of the Charter, which reads:  „Citizens have the right to participate

in the administration of public affairs either directly or through the

free election of their representatives.“
b. with Art. 21 para. 4 of

the Charter, which reads:  „Citizens shall have access, on an equal

basis, to any elective and other public office.“
c. with Art. 4 para.

3 of the Charter, which reads:  „Any statutory limitation upon the

fundamental rights and basic freedoms must apply in the same way to all

cases which meet the specified conditions.“

In the petitioners'

view, the existing text of § 46a of the Act on the Standing Orders

unjustifiably restricts citizens' inalienable right to participate in

the administration of public affairs through their representatives,

moreover in a manner which enjoys no support (evidently in

constitutional acts or statutes, as the petitioners do not present their

thesis in more precise details).  As a result of the creation of an

Electoral Committee, to which was entrusted powers which the Act on

Czech Television otherwise entrusts to all Deputies of the Chamber of

Deputies, all Deputies who are not members of the Electoral Committee

are deprived of the right to vote (and even, by their vote, to strive

for re-election by their constituents), as a result of which so are as

well those citizens who are represented by the Deputies who are not

members of the Electoral Committee.  In this way, the right of these

citizens to participate in the administration of public affairs (in the

administration of Czech Television to the extent provided for in the Act

on Czech Television, through the election of member of the Council of

Czech Television).  The current text of § 46a of the Act on the Standing

Orders unjustifiably restricts citizens' inalienable right to have

access to any elective or other public office under equal conditions. 

No rules (criteria) exist governing the activities of this Electoral

Committee, consisting in the manner of assessing submitted proposals

(for candidates for election to the Council of Czech Television) and

leading to the selection of only such number of candidates ". . .

fulfilling the prerequisites according to this Statute . . ." in an

amount corresponding to three times the number of members of the Council

of Czech Television who should be elected to the Council by the Chamber

of Deputies.  In this way, a substantial portion of the candidates are

prevented from standing for election before that body which is

designated by law for that purpose, namely the entire Chamber of

Deputies, and thereby the right to have access to any elective or other

public office under equal conditions. Although the Electoral Committee

has, in order to implement the contested provisions in conformity with §

46a para. 3 of the Act on the Standing Orders, adopted a resolution

detailing the manner in which to proceed (Resolution No. 1616),

nonetheless by adopting Resolution No. 8, it exceeded the bounds of its

statutory empowerment and it restricted the right of candidates to

appear before the Electoral Committee of the Chamber (and it alone) to a

certain portion of candidates from among those who otherwise fulfill

the preconditions for the election as a member of the Council of Czech

Television.  Moreover, that part of para. 2 of the current text of the

contested § 46a which reads “from among those candidates fulfilling the

requirements according to this Act, select for election by the Chamber

of Deputies candidates in an amount corresponding to three times the

number of members who should be elected to the Council,” is confusing as

it is not unequivocally clear which act is meant  by the formulation

“this Act”, when the Act on Czech Television is not cited in the Act on

the Standing Orders at all and, in the given context, the legislators

could not have had in mind the Act on the Standing Orders.  The

contested provision of the Act on the Standing Orders is in conflict

with the right of citizens (thus, candidates for membership in the

Council of Czech Television, as well) that any restrictions on the basic

rights, hence also the right to have access to any elective or other

public office under equal conditions, should apply the same to all cases

which fulfill the prescribed conditions.  The disposition of the

contested provision itself rests upon the hypothesis, “. . .  candidates

fulfilling the requirements . . .”, however then the restriction on

becoming a subject of the election applies only to a portion of the

candidates (to those designated by the Electoral Committee, without the

addition of any criteria, hence arbitrarily).  If then the possibility

to be “permitted to participate” in the election to membership in the

Council of Czech Television should become a mere object of agreement

among political parties, bargaining, and possibly also compromises,

moreover only among parties in the Parliament, then the relevant

provision of the Act on Czech Television (§ 4 para. 2) concerning who is

authorized to propose candidates for membership of the Council

(precisely persons who are outside of political parties, hence interest

groups, professional organizations, and citizens associations) would be

misguided to the point of being void.  However, even from the standpoint

of this substantive argument, the contested provision itself is

misguided to the point of being void.  This conclusion is otherwise

supported by the fact that the legislature prescribed a group of

subjects for the election by a substantive legal norm (the Act on Czech

Television) and the manner of electing is governed by a procedural norm.

The

petitioners therefore request the Constitutional Court to annul the

contested part of the statute due to its conflict with Art. 4 para. 3,

and Art. 21 paras. 1 and 4 of the Charter.
 


II.
 

For its consideration of the petition, the Constitutional Court requested the views of the Chamber of Deputies and the Senate.
…..
 


III.
 

Pursuant

to § 68 para. 2 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the Constitutional Court reviewed whether the contested act

was adopted within the bounds of the powers laid down in the

Constitution and in the constitutionally prescribed manner.  The

Constitutional Court concluded that the designated act was adopted and

issued within the bounds of the constitutionally prescribed powers and

in the constitutionally prescribed manner.
 


IV.
 

The

manner of electing members of the Council of Czech Television was newly

revised by Act No. 39/2001 Coll., which amends Act No. 483/1991 Coll.,

on Czech Television, as amended, and on amendments to certain other

acts.

Pursuant to § 4 para. 1, third sentence, of the Act on

Czech Television, as amended by Act No. 39/2001 Coll., “The Chamber of

Deputies of the Czech Parliament (hereinafter “Chamber of Deputies”)

elects and recalls members of the Council such that significant

regional, political, social, and cultural schools of thought are

represented on it.”

Pursuant to § 4 para. 2 of the Act on Czech

Television, as amended by Act No. 39/2001 Coll., “Proposals for

candidates to be members of the Council shall be submitted to the

Chamber of Deputies by organizations and associations representing

cultural, regional, social, trade-union, employer, religious,

educational, ecological, and ethnic interests.  Proposals may be

submitted within 15 days of the day the request for the submission of

proposals is made public by the Chairperson of the Chamber of Deputies

in the manner laid down by resolution of the Chamber of Deputies.”

Provision of § 46a of the Act on the Standing Orders of the Chamber of Deputies, as amended by Act No. 39/2001, provides:
1)

For the purpose of election of members of the Council of Czech

Television (hereinafter "Council"), the Chamber of Deputies shall

establish an Electoral Committee, the members of which shall be elected

from among Deputies on the basis of the principle of proportional

representation.
2) Should the number of candidates proposed by

authorized organizations and associations exceed by more than three

times the number of members who should be elected to the Council, the

Electoral Committee shall consider the submitted proposals and, from

among those candidates fulfilling the requirements according to this

Act, select for election by the Chamber of Deputies candidates in an

amount corresponding to three times the number of members who should be

elected to the Council.  If the number of candidates proposed by

authorized organizations and associations does not exceed by more than

three times the members who should be elected to the Council, the

Electoral Committee should submit to the Chamber of Deputies for

election all proposed candidates who fulfill the requirements according

to this Act.
3)  Details on the means of proceeding shall be laid

down in a resolution of the Chamber of Deputies, which shall designate

the extent to which the electoral code (Annex No. 2) shall apply for the

purposes of the procedure under paras. 1 & 2.

By its

resolution No. 1492 from the 34th meeting of 2 March 2001, the Chamber

of Deputies, pursuant to § 46a para. 3 of the Act on the Standing

Orders, laid down more detailed procedures for the Electoral Committee

to follow in selecting candidates.  In that resolution, it was provided

that:
1. the call to submit proposed candidates for membership in

the Council of Czech Television by the statutorily prescribed 15-day

deadline (§ 4 para. 2 of the Act on Czech Television) shall be sent by

the Chairperson of the Chamber of Deputies for publication by the Czech

Press Office;
2. in conformity with § 4 and § 5 of the Act on Czech

Television, authorized organizations and associations shall submit

proposals for candidates as members of the Council of Czech Television

to the Electoral Committee of the Chamber of Deputies by the statutorily

defined deadline;
3. the Electoral Committee shall assess whether

the candidates as members of the Council of Czech Television were

submitted by authorized organizations and associations and whether the

proposed candidates fulfill the requirements laid down in the cited act;

4. the Electoral Committee shall submit the candidates for the Council

of Czech Television to the Electoral Commission of the Chamber of

Deputies and shall simultaneously notify the Chairperson of the Chamber

of Deputies of this fact.  Art. 6, point 2 of the Annex to the Chamber

of Deputies’ Standing Orders shall not apply.  Other provisions of Annex

No. 2 to the Chamber of Deputies’ Standing Orders do apply to the

election of the Council of Czech Television.  The mentioned Annex No. 2

is the Electoral Orders for elections held by the Chamber of Deputies,

whereas, pursuant to Art. 6 point 2, proposals shall be submitted to the

Electoral Commission of the Chamber of Deputies ten days before the

election at the latest.

Further, the following resolutions of the Electoral Committee have been submitted to the Constitutional Court:
- resolution no. 6 of the 2nd meeting of 5 April 2001,
- resolution no. 8 of the 3rd meeting of 24 April 2001
- resolution no. 11 of the 4th meeting of 15 May 2001
- resolution no. 16 of the 5th meeting of 22 May 2001, and
- resolution no. 21 of the 5th meeting of 24 May 2001.

It results from these materials that, in the sense of the

above-mentioned resolutions of the Chamber of Deputies, the Electoral

Committee reviewed exclusively the fulfillment of conditions and

requirements laid down by the Act on Czech Television.  Above all it

ascertained whether the proposals were submitted by organizations and

associations such as are laid down in § 4 para. 2 of the Act on Czech

Television. Toward this end, on the basis of Resolution No. 6, it called

upon these subjects to show, in an appropriate manner, that they meet

the prescribed conditions for submitting petitions.  Then, by its

Resolution No. 11, it excluded from the selection process those

candidates who were proposed by subjects who either did not meet the

conditions under § 4 para. 2 of the Act on Czech Television, or by

subjects who did not demonstrate their authorization to submit proposals

as prescribed by the cited provisions.  It was further seen from the

submitted materials that the Electoral Committee reviewed whether the

proposed candidates met the requirements prescribed in § 4 para. 3 of

the Act on Czech Television. Resolution No. 6 gave the Chairperson of

the Electoral Committee the duty to request from the proposers documents

showing that their proposed candidates meet the prescribed

requirements. The required documents were precisely defined in the same

resolution.  It followed unambiguously from further resolutions of the

Electoral Committee that, from the total number of proposed candidates,

only those were excluded who were proposed by unauthorized subjects or

who did not fulfill the prescribed requirements.  Then the Electoral

Committee selected the designated number of candidates (triple the

number of members of the Council of Czech Television) by secret ballot

pursuant to the rules resulting from Annex No. 2 of the Act on the

Standing Orders and from Resolution No. 8.
 


V.
 

Pursuant

to 44 para. 2 of Act No. 182/1993 Coll., on the Constitutional Court,

the Constitutional Court may, with the consent of the parties, dispense

with an oral hearing if further clarification of the matter cannot be

expected therefrom.  In view of the fact that the parties to the

proceeding gave their consent (the petitioner by a submission of 20

March 2002, the Chamber of Deputies by a submission on the same day, and

the Senate by its submission of 19 March 2002) and of the fact that the

Constitutional Court is of the opinion that further clarification of

the matter cannot be expected from an oral hearing, an oral hearing was

dispensed with in this case.

There are two objections at the

heart of the group of Senators‘ petition proposing the annulment of the

indicated provisions of the Act on the Standing Orders:  an objection

relating to the constitution of the Electoral Committee itself and an

objection relating to the restriction on the right of citizens to have

access, on an equal basis, to any elective or other public office.

The essence of the objection directed against the very constitution of

the Electoral Committee consists in the petitioners‘ conviction that, in

the formation of this committee, every Deputy who was not included in

this committee was excluded from a share in the decision-making in the

election of members to the Council of Czech Television.  In consequence

of this exclusion from the Electoral Committee, then, the Deputies not

included were unable to represent their voters in this area, in

consequence of which the right of their voters to participate in the

administration of public affairs is restricted.

In considering

this objection, the Constitutional Court was inclined to accept the

views expressed in the Chamber of Deputies' pleading, according to which

the Act regulates the creation of an Electoral Committee and its

activities with the proviso that the detailed procedures of the

Committee are left to be regulated by a resolution of the Chamber of

Deputies.  This rule is entirely in conformity with the constitutional

order of the Czech Republic as the Constitution directly provides that

both chambers of Parliament shall have authority to create committees

and commissions as their internal bodies, without the Constitution

designating which specific committees should be created.  If the

individual chambers can create their own committees by internal

resolution, then this is an example of the power of a parliamentary

chamber to create its internal bodies in an autonomous manner.  In the

view of the Constitutional Court, this corresponds to the principle of

representative democracy, for it applies that the Parliament which

resulted from free elections adopts, as  the bearer of power within the

bounds of its competence as defined by the Constitution, a decision

which expresses the will of the people in the sense of Article 2 para. 1

of the Constitution of the Czech Republic.  Parliament's independence

as regards its competence, as well as its internal organizational

autonomy, are thus indisputable characteristics of a body representing

the sovereign will of the people.

It follows from the general

definition of the proportional representation principle that this system

of political representation that the proportion of assigned seats more

or less corresponds to the proportion of votes received.  It is

essential for the application of this principle that the basic

conditions be formed in relatively stabilized electoral and party

relations.  According to general theory, among these basic conditions

must be included above all a settled electoral mechanism which has been

applied in at least three consecutive elections.  It is further

presupposed that the party system is, to a significant degree, permanent

and is not overly fragmented, so that it is possible to determine the

minimal measurable size of the "smallest party".  Theoretical opinion

itself has reached the conclusion (for example, Klíma M., Proportional

"disproportional" electoral system following the amendment to the Act on

Elections to the Parliament of the Czech Republic, Political Science

Magazine, No. 4/2000, p. 349) that stabilized relations for the

application of the proportional representation principle have been

established in the Czech Republic, a view which the Constitutional Court

shares.

In the Constitutional Court's view, from what has been

said it can be deduced that if sufficiently stabilized preconditions for

the application of the proportional representation system have been

formed during the constitution of the Chamber of Deputies as a whole,

then naturally there can be no doubt that, in constituting the internal

bodies of that chamber of Parliament, the proportional representation

principle is a constitutionally conforming foundation.  The Act on the

Standing Orders of the Chamber of Deputies then lays down more detailed

provisions as to the manner in which Deputies take part in the Chamber

of Deputies' work.  Then, with the exception laid down in § 33 para. 1

of the cited law, Deputies can be a member of no more than two

committees.  And, as follows from § 46a para. 1 of the cited Act, the

proportional representation principle is a basic rule for the

constitution of the Electoral Committee, which means that the proportion

of Deputies to members of the Electoral Committee should correspond to

the proportion of seats in the Chamber of Deputies itself and thus even

the proportion of votes obtained by political parties represented in

this chamber of the Parliament.

In other words it can be said

that the establishment of the Electoral Committee consistently followed

the principle of proportional representation, by the application of

which the Chamber of Deputies itself is formed.  It can then justifiably

be expected from this fact that, within the bounds of its competence,

even the Electoral Committee when electing members of the Council of

Czech Television, will decide in a manner which respects the

distribution of political forces in the lead of the Chamber of

Deputies.  The establishment of the Electoral Committee (the

introduction of § 46a into the Standing Orders of the Chamber of

Deputies by Act No. 39/2001 Coll.) is then evidently motivated exactly

by the intention to select an appropriate number of candidates of the

Council of Czech Television in such a way that in the election of the

members themselves of the Council of Czech Television, the Chamber of

Deputies had sufficient room for discussion and careful consideration,

relating to individual candidates, which alone can lead to rational

conclusions justifying their election.  In view of the foregoing, then,

there is in a certain sense what is termed a „pre-selection“ of

candidates for the Council of Czech Television, but one made by a body

which has been created by the Chamber of Deputies in the manner

described above.  This manner cannot, in its final outcome be designated

as unconstitutional, not even from the perspective of the objected Art.

21 para. 1 of the Charter, which when respected even in the smallest

degree is certainly an important principle, that „Citizens have the

right to participate in the administration of public affairs either

directly or through the free election of their representatives.“.  In

view of the foregoing, therefore, the Constitutional Court has come to

the conclusion that the manner of constituting the electoral commission

does not bears the characteristics of unconstitutionality so that it

merely remains to consider the objections raised in the indicated

respects as unfounded.

The essence of the objection relating to

the restriction on citizens' right to have access, on an equal basis, to

any elective and other public office consists in the petitioners'

conviction that the regulation at issue does not contain any rule

(criteria) for the Electoral Committee's actions such as would consist

in a designation of the manner in which the submitted nominations are to

be judged and leading to a selection of only such number of candidates

(who would otherwise meet the requirements of the Act on Czech

Television) which corresponds to triple the number of members of the

Council of Czech Television.  In the petitioners' view, the application

of this provision results in preventing a considerable part of the

nominated candidates to stand for election before the body that is

designated by law to carry out this task, that is the Chamber of

Deputies, thus in denying them access, on an equal basis, to any

elective and other public office.

Art. 21 para. 4 of the Charter

provides: „Citizens shall have access, on an equal basis, to any

elective and other public office.“  This right is closely connected with

the power to participate in the administration of public affairs.  Such

a right is universal, is held by all citizens without regard to gender,

nationality, religion, membership in any sort of political group, or

any other grounds.  By the administration of public affairs is meant

participation in the political life of the State, the administration of

the State, as well as the administration of public issues, and also

represents the opportunity to compete for and hold any sort of office in

public life without any sort of discrimination.  The mentioned

provisions of the Charter correspond to Art. 25, let. c) of the

International Covenant on Civil and Political Rights, which provides

that every citizen shall have the right and the opportunity, without any

of the distinctions mentioned in Art. 2 and without unreasonable

restrictions, to have access, on general terms of equality, to public

service in his country.  Access, on an equal basis, to public service in

one's country means that the eligibility requirements cannot exclude

anybody from such service on the grounds laid down either in Art. 3 of

the Charter or in Art. 2 of the Covenant.  On an equal basis also means

that, as far as access to public office is concerned, the legal

enactments of whatever legal force and the practice of state bodies

cannot give preference to or discriminate in favor of some groups of

citizens over other groups.

As was already stated, the sole

criteria which the Act on Czech Television lays down for the election by

the Chamber of Deputies to the Council of Czech Television are that the

Council should be elected in such a way " . . . that significant

regional, political, social, and cultural schools of thought will be

represented on it (§ 4 para. 1 of the Act on Czech Television), where

nomination of candidates are submitted to the Chamber of Deputies by

organizations and associations representing cultural, regional, social,

trade union, employer, religious, educational, scholarly, ecological,

and national (ethnic group) interests (§ 4 para. 2 of the Act on Czech

Television).  The eligibility requirements for being elected a member of

the Council of Czech Television are laid down in § 4 para. 3 of the Act

on Czech Television and include legal capacity, permanent residence in

the Czech Republic, and good character.

The task of ensuring the

stated composition of the Council of Czech Television is assigned to

the Chamber of Deputies by the Act on Czech Television, but the

provision at issue, § 46 para. 2 of the Act on the Standing Orders, is a

norm regulating the procedure by which the Chamber of Deputies fulfills

its assigned task.  The Constitutional Court does not view it as

unconstitutional that the rules governing the constitution of the

Council of Czech Television are divided, as the petitioners state,

between a legal enactment of a substantive nature and one of a

procedural nature, since rules of a substantive nature - those

concerning the Council of Czech Television, its formation, powers, etc. -

must be regulated by an enactment of a substantive nature (the Act on

Czech Television), in contrast to which the substance of the manner in

which the Chamber of Deputies goes about electing the members of the

Council of Czech Television must be regulated unequivocally in that act

which governs the proceedings of the Chamber of Deputies, therefore the

Act on the Standing Orders.  If in connection with the first objection

concerning the constitution of the Electoral Committee, the

Constitutional Court drew the conclusion that the Electoral Committee

was established by the Chamber of Deputies in a constitutionally

conforming manner and was entrusted with the authority to participate in

the elections of members to the Council of Czech Television, then the

actions of the Electoral Committee in electing members of the Council of

Czech Television can be considered as the actions of the Chamber of

Deputies itself.

According to § 32 of the Act on the Standing

Orders, the Electoral Committee is one of the committees of the Chamber

of Deputies', this is to say, it is a body duly provided for by law with

defined competencies and proceedings.  The Committee's activities are

governed by Part Six, §§ 32 - 46a of the Act on the Standing Orders.  It

can be concluded unambiguously from the rules concerning its

proceedings, such as are laid down in § 36 and following of the Act on

the Standing Orders, that the Committee's work is governed by the

standard rules that apply for the proceedings of a democratically

established body.  Members of the Committee are authorized to

participate in its meetings, to propose additions or modifications to

the agenda, make initiatives, proposals, and comments.  All such

proposals are then decided upon in the manner precisely regulated by the

Act on the Standing Orders.  Committees are responsible to the Chamber

of Deputies for all of their activities.

As can be deduced from

the documents mentioned in part IV, in eliminating candidates the

Electoral Committee proceeded in accordance with § 4 paras. 2, 3 of the

Act on the Standing Orders, thus it judged whether the formal

requirements laid down by law had been fulfilled (a nomination submitted

by authorized subjects, fulfillment of eligibility requirements for

membership in the Council of Czech Television).  It cannot be objected

that this manner of proceeding constitutes a violation of the principle

of equal conditions for access to any elective office.  Nor can a

violation of that principle by found in the other way in which the

Electoral Committee proceeded, by which the selection of a restricted

number of candidates was then further carried out solely on the basis of

an election by secret ballot.  It is entirely clear that this manner of

proceeding allowed for all nominated candidates to have the same

opportunity for access to this office.

In view of the foregoing

and in consequence of the respect for the principle of proportional

representation in the constitution of the Electoral Committee, one

cannot come to the conclusion that Art. 21 para. 4 of the Charter has

been violated, nor that citizens have been denied access, on an equal

basis, to any elective or other public office (membership in the Council

of Czech Television).  Once again the evident intention of the Chamber

of Deputies should be reiterated, to form its body (while respecting the

principle of proportional representation), which evidently created the

conditions for making more effective the Chamber of Deputies‘ activities

when electing members of the Council of Czech Television.  The

maintenance of equal conditions for citizens in terms of access to any

elective or other public office can be found in their equal opportunity,

through the proposals of qualified persons, to compete for the office

of member of the Council of Czech Television, and that from the

perspective of the existence and competence of the Electoral Committee

established by the Chamber of Deputies on the basis of the principle of

proportional representation.

Finally, the petitioners also

object that that portion of the current text of § 46a para. 2 of the Act

on the Standing Orders which reads „ . . . and select from the proposed

candidates who meet the requirements pursuant to this Act . . .“ is

defective, as it is not unambiguous which Act is referred to by the

formulation „ . . . this Act. . . “, especially as the Act on Czech

Television is not even cited in the Act on the Standing Orders and, in

the given context, the legislature could not have had the Act on the

Standing Orders in mind.  The Constitutional Court states in reaction to

this observation that, although the formulation of words chosen is not

particularly suitable, it is unambiguously clear from the overall

context of the contested provision, that its § 46a of the Act on the

Standing Orders, that it refers to the election of members to the

Council of Czech Television, and it can thus be deduced that the

requirements for the performance of this office are laid down in the Act

on Czech Television.  In this connection, the Constitutional Court

affirms that the inexact formulation is rather of a technical character

and that in no case does it render the contested provision

unconstitutional.

In view of the foregoing, the Constitutional

Court has come to the conclusion that the contested provisions do not

violated Art. 21 para. 4 of the Charter.

Notice:  The judgment of the Constitutional Court may not be appealed.

Brno, 30 April 2002