2005/06/22 - Pl. ÚS 13/05: Role of the Senate

22 June 2005

HEADNOTES

The

act governing elections to representative bodies of municipalities or

regions must be considered an election act under Art. 40 of the

Constitution.

In

the Constitution itself the position of the Senate is postulated on a

not insignificant level; the Senate is not only a ceremonial House of

Parliament. In fact, the position of the Senate, in the system of the

highest bodies of state power, precisely in terms of the role of a

restraint, preventing excesses which could endanger the very foundations

of a democratic law-based state, is irreplaceable, naturally except for

the possibility that the framers of the constitution could (newly)

decided to inclined toward the previously considered but not accepted

concept of unicameralism, where, however, the restraints, balances, and

checks on individual state powers would have to be set completely

differently than in the existing Constitution.

If the Senate is to fulfill its stabilizing role, there are no

reasonable grounds why it should fulfill this role in the creation of

election rules only in relation to parliamentary elections, and not in

the creation of laws governing elections to those bodies which

independently govern municipalities and regions. It is not only how the

Houses of Parliament are elected that is important for a stable

democracy, but also how citizens elect their representatives at the

level of local government; one can not conclude, on a constitutional

level, that – despite the different scope of authority of Parliament and

local governments – that parliamentary elections are more important for

maintaining and developing democracy than elections to local government

representative bodies of municipalities and regions. Democracy, if it

is to be a true government of a sovereign people, by the people and for

the people, can not be, even indirectly, distributed from the Parliament

down, but, on the contrary, must grow as the product of a civil society

from the bottom up to the highest bodies of state power, naturally

including the legislative and constitution-framing power. If it is

desirable for the election rules for parliamentary elections not to be

subject to constant changes and for them to be stabilized, as much as

possible, including through a more difficult procedure for passing them,

it is equally desirable for the rules for elections to representative

bodies of regions and municipalities to be subject to such stabilization

with the help of a stricter legislative regime. This requirement is the

more distinct in that the election system for these elections is not

constitutionally regulated.

The Senate is not entitled, under Art. 33 par. 2 of the Constitution,

to pass statutory measures in the matter of election acts governing

elections to both Houses of Parliament, to representative bodies of

municipalities and regions, and to the European Parliament.

If the draft of a law contains parts which require different procedures

for approval, the strictest of those procedures must be required for

constitutional enactment of that law.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Plenum of the Constitutional Court, composed of justices složení 

Stanislav Balík,  František Duchoň,  Vojen Güttler,  Pavel Holländer, 

Dagmar Lastovecká,  Jiří Mucha,  Jan Musil,  Jiří Nykodým,  Pavel

Rychetský,  Miloslav Výborný,  Eliška Wagnerová a  Michaela Židlická,

decided on 22 June 2005 on a petition from a group of senators of the

Parliament of the Czech Republic, represented by Prof. JUDr. A. G.,

CSc., attorney, seeking the annulment of Act no. 96/2005 Coll., which

amends Act no. 238/1992 Coll., on Certain Measures Related to the

Protection of the Public Interest and on the Incompatibility of Certain

Offices (the Conflict of Interest Act), as amended by later regulations,

with the participation of 1) the Chamber of Deputies of the Parliament

of the Czech Republic, 2) the Senate of the Parliament of the Czech

Republic, as parties to the proceedings, and, as a secondary party, a

group of senators of the Parliament of the Czech Republic, represented

by Prof. JUDr. A. G., CSc., attorney, as follows:

Act

no. 96/2005 Coll., which amends Act no. 238/1992 Coll., on Certain

Measures Related to the Protection of the Public Interest and on the

Incompatibility of Certain Offices (the Conflict of Interest Act), as

amended by later regulations, is annulled as of the day this judgment is

promulgated.


REASONING


I.


On

14 March 2005 the Constitutional Court received a petition from a group

of 53 senators (the “petitioner”) to annul Act no. 96/2005 Coll., which

amends Act no. 238/1992 Coll., on Certain Measures Related to the

Protection of the Public Interest and on the Incompatibility of Certain

Offices (the Conflict of Interest Act), as amended by later regulations,

with the claim that passing the law in conflict with the

constitutionally prescribed procedure violated Art. 40 of the

Constitution of the Czech Republic.
 

The

petitioner states that the draft act was discussed in the Chamber of

Deputies and approved in the third reading at its 38th session, held on

24 November 2004. On 6 December 2004 the draft act was passed on to the

Senate, which rejected it on 28 January 2005. Nevertheless, the act was

delivered to the President of the republic for signature on 28 January

2005, but he used his right under Art. 50 of the Constitution and on 10

February 2005 returned it to the Chamber of Deputies. The President

considered disputable the interpretation of Art. 40 of the Constitution,

specifically whether the term “election act” used in that provision

also includes the act on elections to representative bodies of

municipalities or regions, or whether it concerns only on the act on

elections to the Parliament of the Czech Republic. The Chamber of

Deputies maintained its position that the Senate did not discuss the

draft act by the 30 day deadline provided by the Constitution, and that

by the passing of the deadline the act should have passed under Art. 46

par. 3 of the Constitution, and on 22 February 2005 it approved the act

again with 112 votes out of 120 deputies present. The act was published

in the Collection of Laws on 28 February 2005 as no. 96/2005 Coll., and,

with the exception of point 16 [§ 8 par. 2 let. b)], went into effect

on 1 March 2005.
 

The

petitioner points to Art. 40 of the Constitution, under which the

approval of both Houses of Parliament is necessary to pass an election

act, an act on the principles of dealings and contact of the two Houses

with each other and externally, or an act on the rules of procedure of

the senate. Thus, if these acts require the express consent of both

Houses, the situation foreseen by Art. 46 par. 3 of the Constitution,

under which a draft act is passed if the Senate does not discuss it by

the specified deadline of thirty days, can not arise. According to the

petitioner, two questions pose a problem of interpretation in this

matter. One is the interpretation of the concept “election act” under

Art. 40 of the Constitution, but there is also the question whether the

contested act is an election act, because it primarily amends Act no.

238/1992 Coll. and only in point 43 does it add into Act no. 238/1992

Coll. Part Three, which concerns amendment of Act no. 491/2001 Coll., on

Elections to Representative Bodies of Municipalities, and Part Four,

which amends Act no. 130/2000 Coll., on Elections to Representative

Bodies of Regions.
 

The

petitioner believes that despite the unusual legislative technical

method (instead of directly supplementing Act no. 491/2001 Coll. and Act

no. 130/2000 Coll. it is Act no. 238/1992 Coll. which is supplemented

with new section which are then amended by the cited acts) the contested

act can be considered an election act based on its content, because

every amendment of existing acts regulating elections, even to a small

extent, can change the fundamental parameters of the election system. In

this regard it points to Constitutional Court judgment file no. Pl. ÚS

21/01 published as no. 95/2002 Coll., applicable by analogy in the

present matter, in which the Constitutional Court supported the

material, that is content-based review and related categorization of

statues.
 

The petitioner

answers the question of whether the contested act is an election act

under Art. 40 of the Constitution in the affirmative, and argues on the

basis of linguistic, systematic, and teleological interpretation. He

states that the very fact that the Constitution uses the expression

election act in the singular can not be used to conclude that this

should (must) mean a single act, and points to, e.g. Art. 11, Art. 52,

Art. 63 par. 2, and Art. 105 of the Constitution, from which it is

evident that there can be several acts which govern a particular issue,

not just a single act. It follows from this that formulation used in

Art. 40 of the Constitution does not lead to the conclusion that this

means only the Act on Elections to the Parliament of the Czech Republic;

on the contrary, one can conclude that this means any act with

election-related content. Thus, this is a general designation, whereas

the two other instances involve determining the name of the act. In the

petitioner’s opinion, linguistic interpretation must be completed with

systematic interpretation. This analytical method leads to the

conclusion that if the legislature intended to limit the reach of the

expression “election act” used in Art. 40 of the Constitution only to

the Act on Elections to the Parliament of the Czech Republic, it would

surely have made the content of that election act more precise, e.g. as

it did in Art. 107 of the Constitution, where it used the expression

“Act on Elections to the Senate.” Applying teleological interpretation,

the petitioner then also argues that Art. 40 of the Constitution sets a

stricter regime for passing certain acts. The stricter legislative

procedure is evident in the need for both chambers to approve the draft

act. Whereas in the case of an act on the principles of contacts of both

chambers between themselves and externally, and the Act on the Senate

Rules of Procedure, that requirement is undoubtedly justified by the

need for not only the Chamber of Deputies but also the Senate to approve

an act which will affect its position and functioning, in the case of

an election act the decisive reason is the fundamental importance of

elections in order for a democratic society to function. The role of the

Senate as legislative and democratic check in the legislative process

can be implemented precisely by setting the parameters of the elections

systems, not only to the legislature, but to all representative

assemblies.
 

According to the

petitioner, other arguments support rejecting a narrow interpretation

of the term “election act.” The first is the fact that the present

individual election acts, although they are formally independent, are

mutually linked and refer to each other regarding certain election

institutions, e.g. election districts, permanent voter lists, the State

Election Commission, etc.. Thus, it is evident that amending one of the

other election acts can change, indirectly amend the Act on Elections to

the Parliament of the Czech Republic, which is an argument for stricter

legislative procedure as regards all acts containing electoral subject

matter. The second argument is the possibility of regulating elections

to all representative assemblies by one act, an “election codex,” which

the Ministry of the Interior has already prepared, which testifies to

the fact that the central administrative office in election matters

considers the issue so interconnected that it can be regulated in one

statute. In conclusion the petitioner also pointed out the historical

aspect, as the background report to the Constitution stated that “Art.

40 defines the circle of cases where the consent of both Houses is

necessary, otherwise a statute will not be passed,” from which one can

conclude that the intention was to introduce such legislative procedure

rules for a certain limited circle of laws, as will ensure the equal

position of the Senate in relation to the Chamber of Deputies.
 

From

a more general viewpoint, with reference to judgment Pl. ÚS 14/01,

published as no. 285/2001 Coll., the petitioner believes that the steps

taken by the Chamber of Deputies in passing the contested act was not

correct, also because it did not follow the accepted practice, which

could already be considered a constitutional custom. It pointed to the

procedure in discussion the Act on Elections to the European Parliament,

which the Chamber of Deputies passed to the Senate on 6 December 2002,

the Senate discussed 9 January 2003 (i.e. after the thirty day deadline)

and on 15 January 2003 returned to the Chamber of Deputies with

amending proposals. The Chamber of Deputies voted on the act again, and

passed it with the Senate amendments. If it had proceeded the same way

as in the case of the contested act, it would have had to consider the

Act on Elections to the European Parliament to have been passed when the

thirty day deadline expired.
 

The

petitioner joined to the petition to annul the contested act a petition

for priority review, under § 39 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations (the “Act on the

Constitutional Court”), on the grounds that tightening the rules for

conflict of interest between offices has a direct effect on a number of

person who must act according to the contested statute.
 


II.
II. a
 

The

Senate of the Parliament of the Czech Republic, in its statement on the

petition, on 14 April 2005, signed by its Chairman, Přemysl Sobotka,

said that the contested amendment to the Act on Conflict of Interest was

passed to the Senate on 6 December 2004. From the beginning of

discussions the Senate had no doubts that the draft of the act

containing amendments to election acts was to be discussed under the

regime of “equal powers” in both Houses, and that it had to be approved

by both Houses in order to pass. The correctness of this procedural

regime was confirmed by the conduct of the proposers of the draft,

deputies assigned by the Chamber of Deputies to provide justification

for the amendment in the Senate bodies, who took part in meetings of

Senate committees and the full Senate held after 5 January 2005, the

date when the deadline for discussion of an ordinary statute by the

Senate would have passed. The Senate began discussion of the draft

amendment at its 3rd session on 28 January 2005, and after

recommendations to reject the draft from the constitutional law

committee, the committee for education, science, culture, human rights

and petitions, the committee for territorial development, public

administration and the environment and the mandate and immunity

committee and after discussion and voting in the full Senate it passed

resolution no. 55, which rejected the draft amendment to the Act on

Conflict of Interest. During discussions in the full Senate, the Senate

was informed that the Chairman of the Chamber of Deputies, with the

support of the Chamber of Deputies organization committee, interpreted

Art. 40 of the Constitution so that the Act on Elections to

Representative Bodies of Municipalities and the Act on Elections to

Representative Bodies of Regions are not election acts under that

provision, and that the Chairman of the Chamber of Deputies was, on 8

January 2005, passing the act amending the Conflict of Interest Act, to

the President for further proceedings under the Constitution. The Senate

objected against this step, but did not pass any procedural motion. By

letter of 1 February 2005, the Chairman of the Senate informed the

president that the procedure followed by the Chamber of Deputies in this

matter were fundamentally inconsistent with the legislative procedure

followed in the Senate, and expressed justified doubts about the

constitutionality of the procedure followed by the Chairman of the

Chamber of Deputies.
 

As

regards the matter itself, the Senate pointed to the fact that its

long-term settled approach is that it understands the term “election

act” in Art. 40 of the Constitution in its literal interpretation, to

include all statutes containing rules for constituting constitutionally

defined representative assemblies which are created by election, and

similar also the complements of national representative assemblies in

the area of delegated authority under Art. 10a of the Constitution. The

Senate’s position is based on the argument that election acts are,

besides the normative acts of the constitutional order, the most

important source of constitutional law, and their primary purpose is to

provide content to fill in the skeleton of the constitutional system. In

the constitutional order of a number of European states, election acts

are, because of their creative function, included among “organic” laws,

which serve to implement important constitutional authorizations for the

construction of the state and local organization of the country, and in

these constitutional systems they are subject to a qualified process

for passing them. The Senate pointed out that the background report says

nothing regarding the term “election act” in Art. 40 of the

Constitution; nevertheless, it is known that during discussion on the

draft Constitution the nature of the acts subject to the regime of this

provision changed, and there was a trend toward strengthening the

position of the Senate. The government also does not assign art. 40 of

the Constitution the function of “protecting one House from the other,”

which is documented by the Prime Minister’s declaration when presenting

the Act on Elections to the European Parliament in the Chamber of

Deputies, the declaration of the Minister of Justice when the Chamber of

Deputies voted on the President’s veto of the amendment to the Act on

Conflict of Interest, and the government draft of the amendment to the

Constitution (Chamber of Deputies publication no. 349 from the fourth

term of office, 2003) with the new wording of Art. 40 containing an

exhaustive list of statues where it is necessary that both Houses of

Parliament approve them in order for them to be passed; the list also

includes the Act on Elections to Municipal and Regional Representative

Bodies.
 

The Senate

emphasized that its majority has consistently shared the opinion that

interpretation of the term “election act” is dynamic. Besides elections

to representative bodies, it newly classifies under this term the Act on

Elections to the European Parliament, and in the event that direct

elections of the president were instituted, it would also include the

implementing statute on election of the head of state. It appears to be

lawful that with the process of the Senate’s activity the controlling

and stabilizing function of the Senate, which was not accented and

confirmed until its de facto beginning to function in 1996, is reflected

in the interpretation of a number of terms an relationships governed by

the Constitution. The Senate pointed to the relatively spare expert

legal commentaries on Art. 40 of the Constitution, where, according to

some, the term “election act” includes both elections to both Houses of

the Parliament of the Czech Republic, and acts on elections to local

government bodies (Pavlíček, V. - Hřebejk, J. Ústava a ústavní řád of

the Czech Republic, Komentář [The Constitution and Constitutional Order

of the Czech Republic, Commentary], part 1, Linde, Prague 1998), and

according to others it is only a statutory regulation for elections to

the Parliament of the Czech Republic, where this term is first used in

the same (protective) sense in Art. 33 par. 2 of the Constitution

(Hendrych, D., Svoboda, C. a kol., Ústava of the Czech Republic,

Komentář [the Constitution of the Czech Republic, Commentary], C.H.

Beck, Prague 1997). The Senate also mentioned the content of the

president’s veto of the amendment to the Act on Conflict of Interest,

addressed to the Chamber of Deputies.
 

In

the conclusion of its statement, the Senate said that its long-term

approaches to this matter are generally in agreement with the

petitioner’s arguments, with the exception of the consideration of an

established constitutional custom. In the period of its existence, the

Senate has discussed statutes or amendments of statutes [on elections]

to representative bodies of municipalities, regions or the European

Parliament several times, but it always either spontaneously reached its

legislative decision on these laws within thirty days, or the law being

discussed also contained amendments to the Act on Elections to the

Parliament of the Czech Republic, or another convergence of

circumstances due to which application of procedures under Art. 40 of

the Constitution was evident, or was undisputed according to the

position of the Chamber of Deputies. It is only the Senate decision on

the amendment to the Act on Conflict of Interest, with attached

amendments of Acts on Elections to Representative Bodies of

Municipalities and Regions, which it made after more than 30 days (53

days) from receiving it, and also without its decision also being about

the Act on Elections to of the Parliament of the Czech Republic, which

is a matter of precedent in this regard.
 

The

Senate concluded that it discussed the amendment to the Act on Conflict

of Interest and voted on it with a majority belief that it was doing so

within the bounds of constitutionally provided jurisdiction and in a

constitutionally provided manner, and that its decision to reject this

act meant that it had not been passed. Therefore, it leaves it up to the

Constitutional Court to evaluate the constitutionality of the contested

act and made a decision in the matter.
 


II. b
 

The

Chamber of Deputies of the Parliament of the Czech Republic, in its

statement on the petition of 18 April 2005, signed by its Chairman,

Lubomír Zaorálek, briefly recapitulated the legislative process which

began upon receipt of the draft amendment, which was presented by a

group of deputies on 18 December 2003.
 

To

justify its procedures, the Chamber of Deputies pointed to the

background report to the draft of the Constitution (publication 152,

seventh term of office of the Czech National Council), according to

which Art. 40 of the Constitution is meant to “ensure that both Houses

will be able to function alongside each other without endangering the

legislative process. The dealings of both Houses in their mutual

relationships must be functional. The Houses may not act completely

independently and without being interconnected.” According to the

Chamber of Deputies, the strengthening of the position of the Senate, or

setting Senate on the level of the Chamber of Deputies under this

article lies in ensuring its position vis-à-vis the Chamber of Deputies,

and not in making the Senate the guardian of all election processes in

the Czech Republic, even if they do not directly affect it and in no way

endanger its position in the bicameral structure. As regards elections

to the Senate or the Chamber of Deputies, the strengthening of the

Senate and simultaneous limitation of the Chamber of Deputies is meant

to achieve a situation where the Chamber of Deputies can not

unilaterally regulation the conditions of elections to and the creation

of the Senate or the Chamber of Deputies, even against its will. Other

norms cited in Art. 40 of the Constitution also correspond to this

approach, i.e. the Act on the Senate Rules of Procedure and the

“contacts” act. These are norms where the dominance of the Chamber of

Deputies could weaken the position of the Senate in the relationship

between the tow Houses, or, in an extreme cases, lead to making the

Senate superfluous. However, this connection, as well as possible

influence on the position of the Senate in relation to the Chamber of

Deputies, do not exist in the case of elections to regional and

municipal representative bodies; these laws do not affect the position

of the Senate, and do not put either House at a disadvantage vis-à-vis

the other. The Chamber of Deputies pointed out that the law in question

does not concern election content itself, it does not change the course

of elections, the rules for determining election results, or the

opportunity to participate in elections. According to the Chamber of

Deputies, the petitioner has completely omitted the context in which the

term “election act” was used in Art. 40 of the Constitution. According

to the Chamber of Deputies, this context can be found in the

interconnectedness of Art. 40 with Art. 33 par. 2 of the Constitution,

under which an election act is understood to also mean the Act on

Elections to the Houses of Parliament of the Czech Republic, and not

laws concerning elections to other bodies, including the representative

bodies of regions and municipalities (the purpose of these provisions is

to prevent the Senate, at a time when the Chamber of Deputies has been

dissolved, from changing the manner in which it is created, and not to

prevent the Senate from passing statutory provisions concerning

elections to the representative bodies of regions and municipalities).
 

The

Chamber of Deputies also argued on the basis of the systematic division

of the Constitution, where Art. 40 is included in Chapter Two of the

Constitution, which regulates the legislative power, and is directly

related to Art. 18 of the Constitution, which regulates the principles

of the right to vote for members of both Houses the Parliament of the

Czech Republic and principles of the election system, and also with Art.

20 of the Constitution, under which a statute shall set other

conditions for the exercise of the right to vote. According to the

Chamber of Deputies, one can conclude that in Art. 40 of the

Constitution, the legislature had in mind an election act governing only

elections to the Parliament of the Czech Republic, not elections to the

representative bodies of regions and municipalities, which are

regulation in Chapter Seven, Art. 102 of the Constitution. Unlike the

petitioner, the Chamber of Deputies holds the opinion that any detailing

in words of the term “election act” Art. 40 of the Constitution would

be superfluous. However, in Art. 107 of the Constitution such detailing

was necessary (the “Act on Elections to the Senate”), so that it would

be undisputed that this concerned only an election act under Art. 40 of

the Constitution, because this relationship would not be evident without

closer definition either on the basis of the heading of Chapter Eight

of the Constitution, or from the related provisions in that chapter. The

Chamber of Deputies rejected the opinion that if the legislature had

intended to apply Art. 40 of the Constitution only to the Act on

Elections to of the Parliament of the Czech Republic, it would

undoubtedly have used a reference to Art. 20 of the Constitution.

However, the Chamber of Deputies believes that internal references can

be used only in the event that the internal connections are not fully

clear, and it is not possible to infer them from the internal system of a

statute and the interconnectedness of its individual provisions. As

regards the use of the term “election act” in the singular, the Chamber

of Deputies argued completely contrary to the petitioner, completely

rejected its argument derived from literal linguistic interpretation,

and emphasized that every provision of the Constitution must be

evaluated independently and in context with other provisions. In this

case, an inadmissibly generalizing approach can not be accepted.
 

The

Chamber of Deputies also objected to the petitioner’s criticism that it

had previously acted differently in analogous cases. It said that the

Act on Elections to the European Parliament (Act no. 62/2003 Coll.) was

subject to the approval regime under Art. 40 of the Constitution because

§ 71 in part two contained a direct amendment of Act no. 247/1995

Coll., on Elections to the Parliament of the Czech Republic. As regards

the case which the president used as an argument claiming its previous

different approach the Chamber of Deputies clarified that this concerned

the Act on Elections to Representative Bodies of Municipalities (II

term of the Chamber of Deputies, publication 383), which the Senate

rejected on 11 June 1998, within the thirty day deadline. In the

President’s opinion, the Chamber of Deputies then recognized the opinion

that the Act required the consent of the Senate, because it did not

vote on the rejected act again at its last session before the end of the

term on 18 June 1998. The Chamber of Deputies does not consider this

opinion to correspond to the relevant legal framework under Act no.

90/1995 Coll., on the Rules of Procedure of the Chamber of Deputies. The

Act could have been submitted to the Chamber of Deputies for a repeat

vote after a ten-day period (§97 par. 3 of the Act), which would have

been on 22 June 1998 at the earliest. Elections to the Chamber of

Deputies were held on 19 and 20 June 1998, and in accordance with § 121

par. 1 of the Act it was not possible to discuss proposals in the new

term of the Chamber of Deputies, which had not been discussed and

decided in the previous term. Thus, this case does not involve the

Chamber of Deputies acting differently from previous cases, but it is

the first case where a difference of opinion arises between the Chamber

of Deputies and the Senate on how to handle the matter. The Chamber of

Deputies pointed out that it made the maximum effort to evaluate the

matter and verify it in all the contexts which could be taken into

consideration, including determining whether an analogous case had

already occurred in the past and had been addressed in some way.

However, it was the Senate which unilaterally and without any

consultation whatsoever with the Chamber of Deputies announced, in a

letter from its Chairman of 6 January 2005, that this was a proposed act

under Art. 40 of the Constitution because it contained amendments to

election acts, and for that reason the Senate did not discuss it within

the thirty day deadline.
 

In

the closing of its statement the Chamber of Deputies expressed the

belief that the procedure followed in passing the contested act was

consistent with the Constitution, the constitutional order, and the

legal order of the Czech Republic. It left it up to the Constitutional

Court to evaluate and decide the matter, but posed the question whether

the petitioner should not have, in view of legal certainty and

minimizing interference, sought annulment only of those parts of the act

which concerned the Acts on Elections to Representative Bodies of

Municipalities and Regions, as other parts of the Act on Conflicts of

Interest are unquestionably not subject to the regime of Art. 40 of the

Constitution, and their annulment should be sought in a separate

petition.
 

The Chamber of

Deputies attached to its statement a letter from its Chairman of 2

February 2005, addressed to the President, in which the Chairman of the

Chamber of Deputies responded to the president’s doubts about the

correctness of the procedure followed by the Chamber of Deputies in

approving and promulgation the law which amends the Act on Conflict of

Interest. The Chairman of the Chamber of Deputies expressed the belief

that Art. 40 of the Constitution did not apply to this case, because,

with reference to the background report to the Constitution, the purpose

of this article is to ensure that both Houses can function side by side

without endangering the legislative process. Thus, the point is the

proper function of the tow Houses within the bicameral system, with the

dominance of the Chamber of Deputies, where the strengthening of the

Senate’s position consists of ensuring its position in relation to the

Chamber of Deputies, not of giving it the role of a guard of all

election process in the country. According to the Chairman of the

Chamber of Deputies this position also corresponds to other norms

provided in Art. 40 of the Constitution, where, during their

preparation, the dominance of the Chamber of Deputies could weaken the

position of the Senate in their relationship. However, the Acts on

Elections to Municipal and Regional Representative Bodies are not of

such a nature; their potential influence on the position of the Senate

in relation to the Chamber of Deputies is not evident. The amendment of

the Act on Conflict of Interest does not affect the subject matter of

elections, so the Senate’s legal opinion is purely of a formal nature.

In the closing of his letter, the Chairman of the Chamber of Deputies

took the position that the Senate’s opinion in this matter was not

correct. If the Senate did not act on the draft act within the 30 day

deadline, it was necessary to proceed according to Art. 46 par. 3 of the

Constitution, under which the act is considered to have been passed by

the Senate.
 


II.c
 

The

Constitutional Court informed the President, Václav Klaus, about the

petition from the group of senators to annul Act no. 96/2005 Coll., and

left it to his discretion whether to make a statement on the petition.

The president, by letter of 31 March 2005, informed the Constitutional

Court that the contested act contained an amendment to Act no. 491/2001

Coll., on Elections to Representative Bodies of Municipalities, as well

as an amendment to Act no. 130/2000 Coll., on Elections to

Representative Bodies of Regions, which are election acts, and therefore

it was necessary that they be approved under Art. 40 of the

Constitution by the Chamber of Deputies and the Senate. However, the

contested act was approved only by the Chamber of Deputies, and the

Senate expressly rejected it, and therefore he did not consider it to

have been validly passed. The President maintained his position as it

was communicated to the Chamber of Deputies, the text of which he

attached for purposes of proceedings before the Constitutional Court.
 

By

letter of 10 February 2005, addressed to the Chairman of the Chamber of

Deputies, the President returned to the Chamber of Deputies the Act

which amends Act no. 238/1992 Coll., on Certain Measures Related to the

Protection of the Public Interest and on the Incompatibility of Certain

Offices (the Conflict of Interest Act), with the justification that the

Act contains a direct amendment to the Act on Elections to Municipal

Representative Bodies and a direct amendment to the Act on Elections to

Regional representative Bodies, and that an election act must be passed

by both Houses under Art. 40 of the Constitution. In this case the Act

was rejected by the Senate. The President said that the statements from

the Chairman of the Chamber of Deputies and the Chairman of the Senate

indicated that the Chamber of Deputies considers only the Act on

Elections to of the Parliament of the Czech Republic to be an election

act, whereas the Senate considers every act on elections, from municipal

elections to elections to the European Parliament, to be an election

act. Thus, the Chamber of Deputies is of the opinion that the act was

passed by the expiry of the deadline for Senate discussion, i.e. on 6

January 2005; the Senate insists that the act was not passed. In the

interest of avoiding disputes as to whether the act was or was not

validly passed, the president decided to return the amendment of the Act

on Conflict of Interest and make it possible for the Chamber of

Deputies to vote on the act again. The dispute between the two Houses

lies in the interpretation of the words “election act” in Art. 40 of the

Constitution. According to the president, both approaches could be

defended. The Chamber of Deputies approach is a strict interpretation;

the Senate approach comes from the logical interpretation that Articles

40 and 33 of the Constitution are in fact here not only to protect the

position of one House of Parliament vis-à-vis the other, but so that the

cooperation of both Houses will always be necessary for the amendment

of any election rights in the Czech Republic. The President pointed out

that the Chamber of Deputies has not always maintained the strict

interpretation in the past, and on 18 June 1998 it did not vote on the

amendment to the Act on Municipal Elections, which the Senate rejected

on 11 June 1998 within the thirty day deadline. The President also

considered it significant that representatives of the Chamber of

Deputies took part in discussion of the amendment of the Act on Conflict

of Interest in Senate bodies even after January 2005, i.e. after the

act was to have already been passed. Thus, he considers the present

interpretation by the Chamber of Deputies to be completely new, and

taken precisely in relation to this amendment. This fact was for him

also a reason for returning the act.
 

 

III.
III. a
 

On

29 March 2005 the Constitutional Court received a petition from a group

of 53 senators (this is a different petitioner; thirteen senators in

that group are different from those in this matter) to annul § 1 par. 1,

the words “and members of representative bodies of regions, and

representative bodies of municipalities with expanded jurisdiction and

the districts of the city of Prague, which exercise municipal

jurisdiction with expanded jurisdiction (“representative body of region

or town”),” § 2 par. 1 let. b), § 2 par. 6 and 7, § 4, the words “or

regional or town,” § 5 par. 1, first sentence, the words “and member of a

representative body of a region or town,” § 5 par. 1, last sentence,

the words “and member of a representative body of a region or town,” § 5

par. 3, the words “and a member of a representative body of a region or

town to the inspection committee of the same representative body of a

region or town,” § 6 par. 1, the words “with the exception of an

unreleased member of a representative body of a region or municipality,”

§ 6 par. 3, the words “or a region or town,” § 6 par. 4 let. c), § 7

par. 2 let. c), § 8 par. 1, the words “the inspection committee of the

representative body of a region or town,” § 11 par. 1, the words “or

three members of the representative body of a region or town,” § 11 par.

2, fifth sentence, § 11 par. 2, fourth sentence, the words “or members

of representative bodies of regions or towns,” § 11 par. 6, the words

“the president or mayor,” § 11 par. 8, first sentence, the words “the

president or mayor,” and the words “or the representative body of the

region or town, and the last sentence, the words “of the president or

mayor,” and the words “or deputy president or deputy mayor,” § 11 par.

10 and provisions of part three and part four of Act no. 238/1992 Coll.,

on Certain Measures Related to the Protection of the Public Interest

and on the Incompatibility of Certain Offices (the Conflict of Interest

Act), as amended by Act no. 287/1995 Coll., Act no. 228/1997 Coll., Act

no. 15/2002 Coll. and Act no. 96/2005 Coll., i.e. provisions which were

inserted into the Act by Act no. 96/2005 Coll. The petition contained

arguments on the merits, claiming that the contested provisions were

inconsistent with art. 1 of the Constitution of the CR, Art. 1, Art. 3,

Art. 10 par. 2 and 3, Art. 21 par. 4 and Art. 26 of the Charter of

Fundamental Rights and Freedoms (the “Charter”).
 

The

Constitutional Court determined that as of the day proceedings were

opened in this matter, under file no. Pl. ÚS 19/05, i.e. as of 29 March

2005, the Constitutional Court had already addressed a petition to annul

these provisions, in the matter under file no. Pl. ÚS 13/05. Under § 35

par. 2 of the Act on the Constitutional Court a petition is

inadmissible if the Constitutional Court is already addressing the same

matter, but if it was filed by an authorized petitioner, that petitioner

has a right to take part in proceedings on the previously filed

petition as a secondary party. Therefore, the Constitutional Court, by

resolution of 14 April 2005, file no. Pl. ÚS 19/05-13, denied the

petitioner’s petition [§ 35 par. 2 in conjunction with § 43 par. 1 let.

e) and § 43 par. 2 let. b) of the Act on the Constitutional Court], and

stated that this group of senators of the Parliament of the Czech

Republic, was entitled to the position of a secondary party in the

matter file no. Pl. ÚS 13/05.
 


III. b
 

By

a filing of 21 April 2005, the secondary party took advantage of the

fact that it had the same rights an obligations in the proceedings

conducted under file no. Pl. ÚS 13/05 as the parties (§ 32 of the Act on

the Constitutional Court), and, in the event that the Constitutional

Court did not grant the petition to annul Act no. 96/2005 Coll., it

proposed annulment of provisions of Act no. 238/1992 Coll. In the scope

stated in its petition under file no. Pl. ÚS 19/05. It pointed to the

fact that the amendment of the Act on Conflict of Interest imposed on

members of representative bodies of local government units considerable

obligations, which had to be fulfilled in a short period, whereby it

basically changed the conditions for exercise of a public office for

them in the course of a term of office. The consequences of this fact,

together with the circumstances under which Act no. 96/2005 Coll. was

passed, violate the principle of legitimate expectation and the

principle of confidence in the law, which are regulative expressions of

the value of legal certainty arising from the concept of a law based

state under Art. 1 of the Constitution.
 

The

secondary party then justified its substantive objections to the

provisions proposed to be annulled on the basis that they violate the

principle of equality and the prohibition of discrimination (Art. 1 and

Art. 3 of the Charter), because, in contrast to the existing situation,

the amendment of the Act on Conflict of Interest expanded the

obligations imposed by law [the obligation to submit an affidavit on

personal assets, on activities, on income and gifts and on real estate,

and an obligation to refrain from conduct under § 2 par. 1 let. b)] on

members of representative bodies in regions, in the capital city of

Prague, municipalities with expanded jurisdiction, and city districts of

Prague which exercise the jurisdiction of a municipality with expanded

jurisdiction. According to the secondary party, this definition of

person jurisdiction is unconstitutional, as it establishes unjustified

inequality between members of representative bodies of regions and

municipalities with expanded jurisdiction (including the capital city of

Prague and city districts of Prague with expanded jurisdiction) on the

one hand, and on the other hand other municipalities, for which there is

no legitimate and rational reason. This inequality in providing a

certain number of advantages to some at the expense of others also

establishes inequality between members of representative bodies in local

government units in relation to Art. 10 par. 2 and 3 of the Charter

(the right to protection of privacy), because the law imposes on one

group of members of representative bodies an obligation to make public

information about their assets (§ 3, § 4, § 6, and § 7) and certain

activities (§ 5), which obligation also extends to the person’s husband

or wife. The law forbids members of representative bodies from acting in

certain commercial matters vis-à-vis the local government unit in whose

representative body they are members. This partial removal of the right

to conduct business and other economic activity, or the right to obtain

the means for one’s life needs through work, is inconsistent with Art.

26 par. 1 and 3 of the Charter. The secondary party believes that the

increased level of citizen review over the conduct of their elected

representatives is basically positive, but it considers changing the

rules in the course of a term of office to be decisive and its results

unacceptable. If the obligations imposed by law applied to the members

of all representative bodies from the first elections held after the day

the law went into effect, the secondary party’s objections would lose

their basis. The secondary party also claims that passing the amendment

to the Act on Conflict of Interest also violated Art. 21 par. 4 of the

Charter, which guarantees citizens the right to access to elected (and

other public) office under equal conditions, which, in their opinion,

includes not only the right to access to the offices as such, but also

the right to hold them. With reference to the case law of the

Constitutional Court and the European Court of Human Rights on the need

to set reasonable and objective grounds justifying the different

positions of persons affected by a legal norm, the secondary party

repeatedly pointed to the lack of such grounds in this matter.
 

As

regards the provisions of § 2 par. 6 and 7 of the Act on Conflict of

Interest, distinguishing between released and unreleased members of

representative bodies of regions or municipalities with expanded

jurisdiction (including the capital city of Prague and its city

districts) in terms of the right to payment of compensation for

performance of the office of a member of a directing, supervisory or

inspection body of a legal entity which is founded by that region or

town, or in which the region or town has majority ownership or majority

voting rights, the secondary part states that this provision creates an

impermissible inequality between the individual members of the

representative bodies. The provisions of § 2 par. 6 of the Act takes

away from released members of representative bodies the right to

compensation for an office they perform, that is, the right to obtain

means for their life needs through work (Art. 26 par. 3 of the Charter),

which is discriminatory in relation to unreleased members of

representative bodies. This also violates the right to hold a public

office under equal conditions (Art. 21 par. 4 of the Charter).
 

The

secondary party’s objections to parts three and four of the Act on

Conflict of Interest are considerably similar to the objections set

forth above. These parts of the Act supplement the Act on Elections to

Representative Bodies of Municipalities and the Act on Elections to

Representative Bodies of Municipalities by setting additional cases

where the position of a member of a representative body is incompatible

with certain activities. According to the secondary party, this action

by the legislature is inconsistent with the principle of legitimate

expectation and confidence in the law. The supplemented provisions of

both election acts will lead to the termination of the mandates of

members of representative bodies of municipalities and regions, which

will also violate the right of those members to hold the public office

to which they were duly elected in accordance with the law. The

effectiveness of these provisions should be postponed until the

elections to representative bodies in the local government units, when

each candidate could weigh whether he intends to run for office under

such conditions for holding elected office.
 


III. c
 

The

Senate of the Parliament of the Czech Republic, in its statement of 16

May2005 concerning the petition of the secondary party, signed by its

Chairman Přemysl Sobotka, recapitulated the chronology of the discussion

of the draft of Act no. 96/2005 Coll. and the results of the vote in

which the Senate rejected the draft amendment to the Act on Conflict of

Interest. In the general context of the existing regulation of conflicts

of interest and is expected expansion into local government, the

majority of the Senate was skeptical about its effectiveness, because

the variety of relationships in conducting municipal government appeared

to most senators as something which simply subordinating to the

regulation of parliamentary context of conflicts of interest can hardly

handle in such a way as to have a successful outcome. The Senate pointed

out that the proposed amendment shifts regulation of conflicts of

interest from political responsibility to a typo of administrative

criminal liability, without deadline with the substance of the existing

long-term problem, which is that representatives, deputies and senators

function in the bodies of legal entities which do business.
 

The

Senate’s specific criticisms were directed at a number of legislative

legal problems, such as violation of the equality of representatives in

their position (the so-called released and unreleased representatives),

division of representatives in terms of the right to compensation for

performing offices in the body of a legal entity in which they represent

the municipality, or expanding the circle of offices which are

incompatible with the office of a representative. The system of

penalties for the offence was viewed negatively, and there was sharp

criticism of the fact that expending the circle of incompatible

activities went into effect in the middle of the terms of office of

representative bodies, so that a number of representatives were in

practice forced to resign before their mandate expired, which, in a

certain sense, alters election results.
 

In

the closing of its statement, the Senate agreed with the secondary

party’s petition, and stated that it is up to the constitutional Court

to evaluate the constitutionality of the contested provisions of the Act

on Conflict of Interest and made a decision in the matter.
 


III. d
 

The

Chamber of Deputies of the Parliament of the Czech Republic, in its

statement of 17 May2005 on the petition of the secondary party, signed

by its Chairman Lubomír Zaorálek, summarized the objections presented in

three groups.
 

The first

concerns those provisions of the Act on Conflict of Interest which,

briefly, expand the personal jurisdiction of the Act on Conflict of

Interest, to members of representative bodies of certain local

government units. According to the Chamber of Deputies, there was

criticism of the speed with which the amendment to the Act on Conflict

of Interest was passed without a transitional period caused by the

increasing public pressure on preventing the possibility of corrupt

behavior in public reaction, which, however, does not mean that it has

retroactive effect. Likewise, distinguish various subjects of public

administration does not create discrimination and violation of the

principle of equality. Public administration can not be based on the

absolute equality of all affected subjects. Municipalities differ from

each other, in particular in their different material base, budget, and

scope of jurisdiction and powers, whether within the exercise of state

government or local government. In determining the subjects of public

government, to which it extended the personal jurisdiction of the Act on

Conflict of Interest, the legislature was guided by the consideration

that with the widening scope of jurisdiction of public administration

bodies the opportunity for corrupt behavior can also grow, and vice

versa. The Chamber of Deputies rejected the proposition that the

affected provisions of the Act on Conflict of Interest conflict with the

constitutional principle of the right to protection of privacy, citing

the Act on Protection of Personal Information.
 

As

regards the second area of objections criticizing the differing

regulation of the position of a released or unreleased member of a

representative body of a local government unit, the Chamber of Deputies

stated that in the case of a released member of a representative body

there may be a higher probability of corrupt behavior that with a

released member. The legislature tried to prevent such conduct by

passing the statutory regulation.
 

The

third area of objections is aimed at the amendment of the Acts on

Elections to Representative Bodies of Municipalities and Regions, which

provided that certain offices are incompatible with the office of a

member of a representative body. As regards the argument on the basis of

changing conditions during the period of a mandate, the Chamber of

Deputies stated that it is not aware of this being a violation of the

constitutional order of the Czech Republic.

 

In

its closing position, the Chamber of Deputies repeated its belief that

the legislature acted in accordance with the Constitution, the

constitutional order, and the legal order.
 


III. e
 

The

statements submitted regarding the secondary party’s petition by the

Chamber of Deputies and the Senate were communicated to both Houses of

Parliament for any responses. The chairman of the Chamber of Deputies,

by letter of 21 June 2005, added that in his opinion the petition is

incorrectly aimed only at Act no. 96/2005 Coll., and not, correctly,

against individual and already effective provisions of the Act on

Conflict of Interest itself. The Senate did not submit a response.
 


III. f
 

As

documentation for its decision, the Constitutional Court also obtained a

number of stenographic records, resolutions, and chamber of deputies

publications, freely available in the Joint Czech-Slovak digital

parliamentary library at www.psp.cz.
 


IV.
 

The

Constitutional Court ordered oral proceedings for discussing the

matter. In them, the petitioner and the secondary party referred to

their petitions and the arguments contained in them; they rejected the

opinion of the chairman of the Chamber of Deputies stated in his

response of 21 June 2005 as incorrect and inconsistent with the existing

Constitutional Court case law .
 

The

Senate, as a party to the proceedings, represented in oral proceedings

by its Chairman, Přemysl Sobotka, also referred to the statements it

submitted regarding both petitions.
 

The

Chamber of Deputies, by letter of 21 June 2005, signed by its Chairman,

Lubomír Zaorálek, informed the Constitutional Court that it can not

send a representative to the Constitutional Court proceedings due to the

session of the Chamber of Deputies being in progress, and asked to be

excused, which the Constitutional Court accepted.
 


V.
 

The

Constitutional Court, under § 68 par. 2 of the Act on the

Constitutional Court, first reviewed whether Act no. 96/2005 Coll.,

which amends Act no. 238/1992 Coll., on Certain Measures Related to the

Protection of the Public Interest and on the Incompatibility of Certain

Offices (the Conflict of Interest Act), as amended by later regulations,

was passed within the bounds of constitutionally provided jurisdiction

and in a constitutionally prescribed manner.
 

Based

on the statements of both Houses of Parliament, attachments and

documents available electronically (stenographic protocol from a meeting

of the Senate on 28 January 2005, record of the 44th voting of the 3rd

meeting of the Senate on 28 January 2005, Senate resolution no. 55 from

the 3rd meeting on 28 January 2005, stenographic protocols from relevant

meetings of the Chamber of Deputies and records of the 122nd voting of

the 38th meeting of the Chamber of Deputies on 24 November 2004 and the

442nd voting of the 41st meeting of the Chamber of Deputies on 22

February 2005), the Constitutional Court determined that the draft of

the contested Act was submitted to the Chamber of Deputies by a group of

deputies (Chamber of Deputies publication no. 550/0). After the draft

act was submitted to the government of the CR, it went through three

readings in the Chamber of Deputies (the first reading on 31 March 2004

at the 30th meeting of the fourth term of office, the second reading on

12 October 2004 at the 36th meeting and the third reading on 24 November

2004 at the 38th meeting), which agreed with it on 24 November 2004,

when, out of 169 deputies present, 113 voted in favor of the draft, 36

were against, and 20 abstained.
 

On

6 December 2004 the draft act was passed to the Senate (Senate

publication 465/0), which rejected it on 28 January 2005 at its 3rd

meeting of the 5th term of office, by the votes of 52 senators out of 72

present; 14 were against and 6 abstained.
 

The

Act was delivered to the President, who used his right under the

Constitutional in Art. 50 par. 1 and returned the act to the Chamber of

Deputies, stating his reservations, on 10 February 2005. At the 41st

meeting on 22 February 2005 out of 120 deputies present (with a quorum

being 101), 112 voted to override the veto, and 2 were against. The act

was promulgated as no. 96/2005 Coll. in part 29, distributed on 28

February 2005. The act went into effect on 1 March 2005, with the

exception of point 16. [§ 8 par. 2 let. b)], which is to go into effect

on 1 January 2006.
 


VI.
 

The

contested Act amended provisions of the Act on Conflict of Interest

(no. 238/1992 Coll. as amended by later regulations) and provisions of

the Act on Elections to Representative Bodies of Municipalities (no.

491/2001 Coll. as amended by later regulations) and the Act on Elections

to Representative Bodies of Regions (no. 130/2000 Coll. as amended by

later regulations). Whereas with “ordinary” laws rejection by the Senate

can not be overridden by a new vote in the Chamber of Deputies, this is

not possible with an election act. Therefore, it is evident in the

present matter that the fundamental issue for the Constitutional Court

to decide is the interpretation of the term “election act” in Art. 40 of

the Constitution. While the petitioner, the Senate, and the President,

consider an election act under that article of the Constitution to mean

every act which regulates the rules of elections to all representative

bodies, the Chamber of Deputies believes that such an act must be

understood to mean only an act on parliamentary elections. In terms of

jurisprudence, various opinions have been published, including contrary

ones (cf., e.g., Pavlíček, V., Hřebejk, J.: Ústava a ústavní řád České

republiky, svazek I: Ústava České republiky [The Constitutiona and

Constitutional Order of the Czech Republic, vol. I: The Constitution of

the Czech Republic], Linde Praha, 1994, Hendrych, D., Svoboda, C. and a

collective of authors: Ústava České republiky, Komentář [The

Constitution of the Czech Republic, Commentary], Praha, C. H. Beck,

1997, Kysela, J.: K výkladu pojmu volební zákon v legislativní praxi

Senátu, [On the Interpretation of the Term Election Act in the Senate’s

Legislative Practice], Parlamentní zpravodaj [Parliamentary Gazette],

year 2001, no. 2, Filip J.: Postup při schvalování "volebního zákona"

podle čl. 40 ÚstavyČR [The Procedure of Approving an “Election Act”

under art. 40 of the Constitution of the CR], Časopis pro právní vědu a

praxi [Journal of Legal Knowledge and Practice], year 2005, no. 1).
 

The

legislative process concerning the contested act indicates that if the

legal opinion of the Chamber of Deputies were accepted, nothing about

the constitutional procedure proceedings the passage of the contested

act could be criticized; on the contrary, accepting the petitioner’s

opinion would necessary lead to the conclusion that the contested act

was not passed in a constitutional manner (because the Senate rejected

the draft), so that, if, despite that, after the president’s veto was

overridden by the Chamber of Deputies, it was promulgated, then the

Constitutional Court must act to annul it. In addressing the issue thus

posed, the Constitutional Court deliberated as follows.
 

The

separation of powers in legislative activity between the Chamber of

Deputies and the Senate is governed by the Constitution in Art. 39 par.

4, Art. 40, Art. 42 par. 1 and Art. 45 to 48. In them, the framers of

the constitution established a total of three different law-creating

procedures for various types of laws.

1) The framers of the

constitution placed the passing of laws on the state budget (Art. 42

par. 1 of the Constitution) under the exclusive jurisdiction of the

Chamber of Deputies. The purpose of this constitutional rule is evident.

The state budget, passed in a statute (only in a formal, not material,

sense) is the fundamental instrument and framework for implementation of

government policy. In view of the fact that the government is, in terms

of its creation and existed, tied to the majority will of only the

Chamber of Deputies, the entry of the Senate into the process of

approving the act on the state budget would be a dysfunctional element

for the function of not only the government, but also the state,

especially, not only in the hypothetical situation of the two Houses of

Parliament having a completely different political composition. The

purpose of the Senate is not to directly influence either the creation

or the activity of the government; its mission lies in other influences

(the background report to the draft Constitution states this in the

brief sentence, “the Senate has a review and stabilizing function.”).

2)

Most laws are subject to the legislative procedure described in Art. 45

to 48 of the Constitution. In this procedure, the Senate may, but need

not, enter the legislative process, it is also bound by a deadline by

which it must vote on a draft statue, and finally, it’s position,

vis-à-vis that of the Chamber of Deputies, is considerably weaker. The

Chamber of Deputies need not accept the Senate’s opinion, and may pass a

draft act (by a simple majority of all deputies) in the version which

was passed to the Senate. The reason for weakening the Senate can be

found, as in the previous case, in the need to ensure that political

decisions arising from the will of the majority, expressed by a free

vote (see Art. 6 of the Constitution) can be passed. In other words, so

that the opinion of the House which is not directly related to the

government can not block the legislative process, when it is a minority

position compared to the will of the Chamber of Deputies.

3) The

framers of the Constitution separated other sub-groups from statues

which are also discussed by the Senate in Art. 39 par. 4 and Art. 40 of

the Constitution. The strictest form of the legislative process,

prescribed here, is marked primarily by the requirement of consent from

both Houses of Parliament, which have equal standing in terms of

influence on the final text of the statute. In this type of legislative

(and constitution-forming) procedure, the Senate must discuss a draft

statute, but is not bound by a deadline, which the Constitution does not

expressly say, but which has now been stabilized in traditional

parliamentary practice, i.e. by the existing constitutional custom,

which, from a constitutional viewpoint, there are no grounds to object

against. The conclusion that the Senate is not bound by a deadline for

discussing a draft statute in this procedure is based on a

constitutional interpretation under which Art. 39 par. 4 and Art. 40 of

the Constitution are a special regulation.
 

The

framers of the constitution separated the statutes subject to the more

rigid approval process according to legal force (the consent of the

Chamber of Deputies and of the Senate is necessary for all

constitutional acts) and – with ordinary laws – according to the subject

matter they govern.

     Article 40 of the Constitution set a stricter process in a definitive list for these statutes:
- an election act,
- an act on the fundamentals of conduct and contact of the two Houses between themselves and externally,
- an act on the rules of procedure of the Senate.
 

While

the purpose of the legislative procedure described in 1) and 2) is

quite easy to discern, the reasons for the obligatory consent of both

Houses of Parliament with all constitutional acts and enumerated

ordinary laws are considerably more difficult to interpret, because

there are various reasons and it is difficult to compare them with each

other.
 

As regards

constitutional acts, in this connection it is enough to refer to the

generally accepted opinion that it is desirable for constitutional

procedure to be subject to a stricter regime than ordinary legislative

activity, in view of the need to change the fundamental laws of the

state only infrequently if possible, and only upon achieving greater

consensus than usual.
 

Revealing

the reasons which led the framers of the constitution to assign the

enumerated ordinary laws to the stricter legislative procedure comes

from the following deliberations.
 

It

is easiest to answer the question why the act on the Senate rules of

procedure was included in the enumeration of laws in Art. 40 of the

Constitution. We accept without reservation the opinion that this is out

of a certain “legislative politeness,” as it would not be right for the

rules which govern the internal relationships of one of the Houses of

Parliament be forced onto that House against the will of its majority by

the other House. De constitutione lata it is then superfluous to

analyze the fact that this legislative politeness remained only partial,

because there are also laws other than the rules of procedure which can

also considerably affect the internal relationships of the Senate and

the relationships of senators.
 

The

reason why the act on principles of dealings and contacts between the

two Houses and externally is also subject to the stricter regime of Art.

40 of the Constitution is similar as with the Act on the Rules of

Procedure of the Senate, but it is not the only reason. From a

constitutional viewpoint, the contents of this “contact” law (not yet

enacted) can be formulated not only relatively concisely, and so as to

limit it to the regulation of intra-parliamentary contacts, but also in a

wider manner; it could regulate not only the internal activities of

Parliament, but also the handling of fundamental issues related to

obligations arising from the Czech Republic’s membership in an

international organization or institution provided in Art. 10a par. 1 of

the Constitution; the Constitution presumes the possibility that the

“contacts” act will entrust the exercise of the jurisdiction of the

chambers to state positions on pending decisions of that international

organization to a bi-cameral body (see Art. 10b of the Constitution).

Thus, while the exclusive reason for including the Act on the Rules of

Procedure of the Senate into Article 40 of the Constitution is the need

felt by the framers of the constitution not to regulate the rules of

procedure of the Senate by a decision forced upon it by the Chamber of

Deputies, with the act on principles of dealings and contact between the

two Houses and externally this reason – as with constitutional acts –

may also be joined by the need to subject it to a stricter approval

process due to its importance for the Czech Republic’s obligations

vis-à-vis an international organization (institution) to which certain

powers of bodies of the Czech Republic were transferred.
 

The

Election Act cited first in Art. 40 of the Constitution has not been

exhaustively named here for the same reason why the Act on the Rules of

Procedure of the Senate appears in the last place here, unless it was

concluded that Art. 40 of the Constitution lists exclusively those laws

which concern the activities (and creation) of the Senate. Of course,

then it would be necessary to consider an election act under that art.

of the Constitution to be only the Act on Elections to the Senate, and

not the act governing elections to the Chamber of Deputies. However,

such a conclusion would conflict both with what has been said in

relation to the contacts act, and with the stable constitutional custom,

under which both Houses of Parliament consider the Act on Elections to

the Parliament to indisputably be an election act under Art. 40 of the

Constitution. Moreover, the Constitution uses the term “the Act on

Elections to the Senate,” (Art. 107 par. 1), so if the framers of the

constitution meant “election act” under Art. 40 of the Constitution to

be precisely and only an act governing senate elections, it would have

no reasonable grounds to choose different terms for the same thing in

different articles of the Constitution.
 

The

term “election act” under Art. 40 of the Constitution can be

interpreted in completely different ways – from a strictly narrow

interpretation to a widely expansive one. However, for the reasons

explained above, the most narrow interpretation must be rejected. In

seeking an answer to the question of what is the purpose of classifying

an “election act” under the stricter discussion regime and which

election acts are subject to the discussion procedure provided by Art.

40 of the Constitution, the Constitutional Court concluded that an

answer can not be reached through linguistic or systematic

interpretation.
 

A purely

linguistic (fundamental in terms of interpretational principles, but

nevertheless the roughest) interpretation of Art. 40 of the Constitution

permits interpreting that provision in a way which leads to absurd

conclusions (e.g. that in this provision the framers of the constitution

prescribed an obligation to create a single election codex – of course,

again without answering the question which elections such a codex is

supposed to regulate) or to conclusions which include in the term

“election act” any law (or part thereof) which regulates election

procedure, regardless of whether that procedure creates assemblies which

are part of the legislative branch and local government or where by the

Czech republic’s representatives in the European Parliament are

election (or the president would be elected – as the Senate points in

its statement de constitutione et de lege ferenda), but also bodies of

legislative and local government assemblies, so that then such acts

would quite inconsistently also include the Act on the Rules of

Procedure of the Chamber of Deputies, the Act on Regions and the Act on

Municipalities; mere linguistic interpretation might even lead to the

conclusion that this also includes laws governing elections to other

bodies of public power and to bodies of professional self-governing

associations or bodies of private legal entities. Also in favor of

giving less weight to linguistic interpretation is the fact that none of

the laws governing elections to the Houses of the National Assembly in

the First Republic, or the Federal Assembly or Czech National Council

after 1990, used the legislative abbreviation “election act,” so in

terms of linguistic usage one can not claim that the legal context

automatically connected that expression with elections to the Houses of

Parliament. Moreover, the use of the singular rather than the plural

everywhere where it is possible is a completely usual legislative

technique, and in legal theory there is no dispute about the fact that a

concept described in the singular – here an election act – does not

rule out the possibility of several laws forming the framework thus

described.
 

A systematic

interpretation in this matter also does not provide a reasonable

solution. As is evident from the petition, the petitioner argues on the

basis of such interpretation – among other things – in favor of its

conclusions, whereas the Chamber of Deputies, in its statement, also

presents a systematic interpretation – different from the petitioner’s –

to support its legal opinion, which, is completely opposition to the

opinion of the petitioner (and of the Senate and the president).

However, if two contrary systematic interpretation of a legal norm are

possible, it follows that a mere systematic interpretation can not be

sufficient for a constitutional interpretation.
 

In

the Constitutional Court’s opinion, to evaluate this part of Art. 40 of

the Constitution it is necessary to start with a wider view, one

reflecting the value allocated by the framers of the constitution to the

Senate within the entire system governing the exercise of the state

power, as well as the relevance of laws governing elections for the

purpose of ensuring the foundations of the Czech Republic, which

proclaims itself in the constitution to be a democratic law-based state.
 

As

was already stated above, the background report to the draft of the

Constitution describes the Senate as a parliamentary chamber with an

inspecting and stabilizing function. During the creation of the

Constitution these Senate functions were considerably strengthened in

contrast to the government draft of the Constitution; in relation to the

president, the power to file a complaint for treason was shifted from

the Chamber of Deputies to the Senate, and in relation to the

Constitutional Court, from the original outline, anticipating the naming

of six Constitutional Court judges by the President (without the

countersignature of that decision by the Prime Minister) and six

Constitutional Court judges by the Senate, the power to appoint was

shifted exclusively to the president, but conditioned on the consent of

the Senate with the appointment of all Constitutional Court judges.

Thus, in the Constitution itself the position of the Senate is

postulated on a not insignificant level; the Senate is not only a

ceremonial House of Parliament. In fact, the position of the Senate, in

the system of the highest bodies of state power, precisely in terms of

the role of a restraint, preventing excesses which could endanger the

very foundations of a democratic law-based state, is irreplaceable,

naturally except for the possibility that the framers of the

constitution could (newly) decided to inclined toward the previously

considered but not accepted concept of unicameralism, where, however,

the restraints, balances, and checks on individual state powers would

have to be set completely differently than in the existing Constitution.
 

The

Constitutional Court has in the past stated the opinion that “in a

situation where there is a dispute between entities applying the

Constitution concerning the interpretation of a particular provision,

that dispute must be resolved to the benefit of the possibility of

applying the constitutional powers which that provision concerns, that

is, in terms of the meaning and purpose of the affected constitutional

institution” (see judgment Pl. ÚS 33/97 published as no. 30/1998 Coll.).

In the present matter too there is no reason to diverge from that

conclusion. Thus, the Constitutional Court had to reject the attempt by

the Chamber of Deputies unilaterally to reduce the role of the Senate,

which is obligated, together with other constitutional institutions, to

guard the foundations of statehood (not limited merely to the senate

powers in the constitution-framing and legislative areas).
 

The

Constitutional Court relies not only on the described subjective

interpretation of the intent of the framers of the constitution in

relation to the position of the Senate, in its not merely norm creating

activity, but also on the deliberations presented below.
 

For

a constitutional interpretation of the words “election act” contained

in Art. 40 of the Constitution, one can not overlook the context

enshrined in the fundamental provisions of the Constitution, in chapter

seven of the Constitution and in Art. 21 of the Charter.
 

The

government of territorial local government units is constitutionally

guaranteed by one of the fundamental provisions of the Constitution

(Art. 8). The right of citizens to self-government, in other words to

the independent management of municipalities and regions through

representative bodies whose members are elected by a secret ballot on

the basis of a general, equal, and direct right to vote, is

constitutionally secured and defined in Chapter Seven of the

Constitution, which, at a constitutional level, describes in more detail

the right of citizens to participate, through electing representatives,

in the administration of public matters (Art. 21 par. 1 of the Charter)

or to participate in this administration as members of representative

bodies, because they have a right to seek elected office in them under

equal conditions (Art. 21 par. 4 of the Charter).
 

Free

elections are a condition sine qua non of a democratic state. In the

administration of public matters, this condition can not be limited only

to creation of the legislative power, that is to the election of

deputies and senators, but it must also be applied to the election of

members of representative bodies which govern public matters at the

level of local government. If the Senate is to fulfill its stabilizing

role, there are no reasonable grounds why it should fulfill this role in

the creation of election rules only in relation to parliamentary

elections, and not in the creation of laws governing elections to those

bodies which independently govern municipalities and regions. It is not

only how the Houses of Parliament are elected that is important for a

stable democracy, but also how citizens elect their representatives at

the level of local government; one can not conclude, on a constitutional

level, that – despite the different scope of authority of Parliament

and local governments – that parliamentary elections are more important

for maintaining and developing democracy than elections to local

government representative bodies of municipalities and regions.

Democracy, if it is to be a true government of a sovereign people, by

the people and for the people, can not be, even indirectly, distributed

from the Parliament down, but, on the contrary, must grow as the product

of a civil society from the bottom up to the highest bodies of state

power, naturally including the legislative and constitution-framing

power. If it is desirable for the election rules for parliamentary

elections not to be subject to constant changes and for them to be

stabilized, as much as possible, including through a more difficult

procedure for passing them, it is equally desirable for the rules for

elections to representative bodies of regions and municipalities to be

subject to such stabilization with the help of a stricter legislative

regime. This requirement is the more distinct, if one considers that,

unlike elections to the Senate and the Chamber of Deputies, for which

the election system is constitutionally prescribed, elections of members

of representative bodies are subject by law only to the constitutional

regulation contained in Article 102 par. 1 of the Constitution; the

election system for these elections is not constitutionally regulated.
 

It

would be quite inappropriate for the development of democracy, in which

the Constitutional Court considers local government to be an

irreplaceable component (see judgment file no. Pl. ÚS 1/96 published in

the Collection of Decisions of the Constitutional Court, vol. 6 no.

120), to permit changing the election procedure on the basis of which

the representative bodies of local government units are created,

including, for example, the fundamental system components, always based

on a majority, thus guaranteeing a majority in the Chamber of Deputies,

true, a majority of the governing party (parties), but one which may

also be only a minimal majority, and moreover need not be a majority

which exists in both Houses of Parliament. If the opinion of the Chamber

of Deputies were accepted, under which even in the case of discussing

laws regulating elections to representative bodies of regions and

municipalities the position of the Senate would be fully subordinate to a

majority perhaps of only 101 deputies (under Art. 47 par. 1 second

sentence of the Constitution), nothing would prevent the Chamber of

Deputies, against the will of the stabilizing House of the Parliament,

to set quite different election rules for all local and regional

elections, per the current belief of even a slight governing majority,

according to which new election rules would suit that majority. However,

there is no reason why the representative bodies of municipalities and

regions should be elected according to rules which suit the governing

majority.
 

If the two Houses

of Parliament are equal partners in constitution-creating activity, one

can conclude from the foregoing reasons, by interpretation e ratione

legis, that it is useful, appropriate and necessary to set stricter

election procedures under which people choose their representatives in

territorial entities, than for laws which are not a basis for creating

bodies representing the will of the citizens of a municipality or

region. The manner of electing members of representative bodies of

regions and municipalities stands among the foundations of a democratic

state.
 

The foregoing also

indicates (as was already said), that not all laws governing the subject

matter of elections can be considered election acts under Art. 40 of

the Constitution. In particular, these do not include the rules – even

if set by statute – which create various other bodies of public power or

bodies of professional self-governing associations, even if the

legislature (not the framers of the constitution, who enshrined the

right of local government units to govern themselves directly in the

Constitution), transferred to them the exercise of state administration,

and even less so laws regulating the election of bodies of the Houses

of Parliament and representative bodies or other bodies of private legal

entities. This also follows from the fact that elections to the

representative bodies of local government units of the Chamber of

Deputies and of the Senate are generally regulated by the Constitution

itself, as a primary and essential prerequisite for the exercise of

state power by the people (see Art. 2 par. 1 of the Constitution).
 

On

the basis of all the foregoing reasons, the Constitutional Court

concluded that the act governing elections to the representative bodies

of municipalities or regions must be considered an election act under

Art. 40 of the Constitution, so that, in order for that act to be

passed, it had to be approved by the Chamber of Deputies and by the

Senate, and in discussing the act the Senate was not bound by a deadline

of 30 days under Art. 46 par. 1 of the Constitution. From that

conclusion it then followed that the steps taken by the Chamber of

Deputies before promulgation of the contested act were inconsistent with

the constitutionally prescribed procedure, without the defect-free

fulfillment of which a law can not be passed. Therefore, the

Constitutional Court granted the petitioner’s petition, and annulled the

contested act under § 70 par. 1 of the Act on the Constitutional Court.
 

As

obiter dictum, the Constitutional Court agrees with the arguments of

the petitioner and the Senate, under which the Act on Elections to the

European Parliament is also an election act under Art. 40 of the

Constitution, primarily because on the basis of that act the people

elect representatives to a body which participates in the creation of

European law and thereby also the legal order of the Czech Republic.
 

It

also follows from the foregoing that the Senate is not entitled, under

Art. 33 par. 2 of the Constitution, to pass statutory measures in the

matter of election acts governing elections to both Houses of

Parliament, to representative bodies of municipalities and regions, and

to the European Parliament.
 

All

the provisions of Act no. 96/2005 Coll. were annulled, not only parts

three and four, which, in a complicated way, through the Act on Conflict

of Interest, amended certain provisions of the Act on Elections to

Representative Bodies of Municipalities and the Act on Elections to

Representative Bodies of Regions. It is not possible for different

constitutional procedural requirements for duly passing a law apply to

different parts of the same law. In other words, a law must be subject

to a uniform regime for discussion, which can not be simultaneously both

defect-free, and unconstitutional; if the draft of a law contains parts

which require different procedures for approval, the strictest of those

procedures must be required for constitutional enactment of that law.
 

Upon

annulment of Act no. 96/2005 Coll. due to the defective procedure by

the Chamber of Deputies in passing it, grounds ceased to exist for

review of the constitutionality of those provisions of the Act on

Conflict of Interest, which the secondary party sought to have annulled

due to substantive unconstitutionality in the proposed judgment written

in eventum, to be used in the event that the original petition was not

granted.
 

Although the

reasons already stated were quite sufficient for the Constitutional

Court’s decision to grant the petition, the Constitutional Court

considers it useful to respond to the petitioner’s deductions, basing

its request to annul the Act on the constitutional custom which it

claims to exist. In this regard the petitioner pointed to the

legislative process which preceded the passing of the Act on Elections

to the European Parliament. Here the Constitutional Court states that

the petitioner’s arguments are imprecise; we can point to the statements

from the Chamber of Deputies and the Senate, as well as to the

discussion which preceded voting in the Chamber of Deputies on the draft

of the act returned by the Senate, which indicate that the problem now

being addressed did not arise at the time, because the discussed draft

Act on Elections to the European Parliament also included direct

amendment of the Act on Elections to of the Parliament of the Czech

Republic, so after the theoretical presentations by the speakers, the

dispute was closed by the fact that, in view of that direct amendment,

the Senate chose the non-defective procedure. In the Constitutional

Court’s opinion, it would be more appropriate in this regard to point to

the discussion of Chamber of Deputies publication 1160 of the third

term of office (1998 to 2002) of the Chamber of Deputies. This

publication contained a government draft of the Act to Amend and Annul

Certain Acts in Connection with the Termination of Activity of District

Offices, and in the course of discussing it, the Chamber of Deputies, at

the proposal of its constitutional law committee, deleted from the

government draft parts fifty three, sixty one and sixty seven, i.e. the

direct amendments of the Act on Elections to of the Parliament of the

Czech Republic, the Act Elections to Representative Bodies of Regions

and the Act on Elections to Representative Bodies of Municipalities,

which was explained in the 47th meeting of the Chamber of Deputies on

the grounds that election acts are subject to a different constitutional

regime for discussion. The contents of these parts were included in

Chamber of Deputies publication no. 1022 (the Senate draft of the Act

which amends Act no. 247/95 Coll., on Elections to of the Parliament of

the Czech Republic), which was discussed separately by both Houses of

Parliament, and subsequently, including the added amendments to the Act

on Elections to Representative Bodies of Regions and the Act on

Elections to Representative Bodies of Municipalities, was signed by the

President and published as no. 230/2002 Coll. Thus, although the

petitioner’s arguments in that regard are not correct, neither is the

claim of the Chamber of Deputies, which said in its statement that this

case “can not … involve a completely new interpretation by the Chamber

of Deputies ….”
 

As regards

the petitioner’s proposal for priority discussion of the matter, the

Constitutional Court did not consider it necessary to say in a separate

resolution, issued under § 39 of the Act on the Constitutional Court,

that the matter which the petition concerns is urgent. However, even

without such a formal resolution, the Constitutional Court gave the

matter priority, and ordered oral proceedings (which the Chamber of

Deputies declined to waive in its statement on the petition) for 11

May2005, that is, at a time when the deadline by which the Chamber of

Deputies and the Senate had a right to respond to the secondary party’s

petition had not yet expired. The Constitutional Court found grounds to

handle the petition as quickly as possible primarily in the need to not

prolong the state of uncertainty as to whether, as a result of differing

interpretations of one of the constitutional concepts Art. 40 of the

Constitution did or did not result in defective legislative procedure,

on the basis of which a generally binding normative act was passed. It

also applied the petitioner’s arguments point out the direct effects of

the act on a number of persons.
 

Under

§ 58 par. 1 of the Act on the Constitutional Court, judgments in which

the Constitutional Court decided on a petition to annul an act or other

legal regulation or individual provisions thereof under Art. 87 par. 1

let. a) and b) of the Constitution are executable as of the day they are

promulgated in the Collection of Laws, unless the Constitutional Court

decides otherwise. In this case, the Constitutional Court decided that

the judgment goes into effect the day it is announced, because it took

into account the reasons which led to its being given priority. In

conclusion, we can also add that it would be inconsistent with the

principles of a democratic law based state if in the period from the

announcement to the publication of a judgment, § 55 of the Act on

Elections to Representative Bodies of Municipalities, or § 48 of the Act

on Elections to Representative Bodies of Regions, on the termination of

the mandate of a member of a representative body of a municipality or

region could be applied (including by the executive state power – the

director of a regional office or the minister of the interior).

Notice: Decisions of the Constitutional Court cannot be appealed.

Brno, 22 June 2005