2009/09/10 - Pl. ÚS 27/09: Constitutional Act on Shortening the Term of Office of the Chamber of Deputies

10 September 2009

Petition from Miloš Melčák, Member of Parliament, seeking the annulment of constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the Chamber of Deputies.

German version

Summary - Press release

HEADNOTES

1)

In its case law, the Constitutional Court emphatically made clear the

need to protect the material focus of the constitutional order, and,

partly abstractly and partly casuistically, indicated its structure, as

well as the fact that its consequences apply not only to the democratic

legislature, but to the Constitutional Court itself.

Insofar

as the Constitutional Court articulates the need to include the

category of constitutional acts within the term “statute” in Art. 87

par. 1 let. a) of the Constitution, in terms of reviewing them for

consistency with Art. 9 par. 2 of the Constitution, with direct

derogative consequences, it does so in connection to its case law,

beginning with the key judgment file no. Pl. ÚS 19/93, and does so in

accordance with the values and principles that guide constitutional

systems in democratic countries. Protection of the material core of the

Constitution, i.e. the imperative that the essential requirements for a

democratic state governed by the rule of law, under Art. 9 par. 2 of the

Constitution, are non-changeable, is not a mere slogan or proclamation,

but a constitutional provision with normative consequences. In No. 78

of The Federalist Papers, Alexander Hamilton wrote that “the courts were

designed to be an intermediate body between the people and the

legislature, in order, among other things, to keep the latter within the

limits assigned to their authority.” Without the projection of Art. 9

par. 2 of the Constitution into interpretation of Art. 87 par. 1 let. a)

of the Constitution, the non-changeability of the essential

requirements for a democratic state governed by the rule of law would

lose its normative nature and remain merely a political, or moral

challenge.

2)

An ad hoc constitutional act (for an individual instance) is not a

supplement or amendment to the Constitution. In content, a

constitutional act for an individual instance can take two forms –

either it involves time-limited suspension of the Constitution, or a

substantive, or personal, exception from the general validity of the

constitutional framework.

A

supplement to the constitution can be characterized by the fact that

the supplemented constitutional provision does not change, and the

supplemented and supplementing provisions are not inconsistent. An

amendment to the constitution means that a particular constitutional

provision is annulled or partly annulled and perhaps (not necessarily) a

new provision is established. In a breach, the constitution is not

annulled, but the breached (in this case, suspended) provision and the

breaching (in this case, suspending) provision are inconsistent.
Constitutional

Act no. 195/2009 Coll. is a constitutional act only in form, but not in

substance. In substance it is an individual legal act affecting not a

generally defined circle of addressees and situations, but a

specifically designated subject (the Chamber of Deputies of the

Parliament of the Czech Republic elected in 2006) and a specific

situation (ending its term of office on the day of elections, which are

to be held by 15 October 2009, and shortening deadlines under the Act on

Elections to the Parliament of the Czech Republic and under the

Administrative Procedure Code, only for this instance). This fact is

expressly stated not only in Art. 1 of this constitutional Act, but also

in Art. 2 (which is a direct amendment to statutes implemented by the

constitutional act!), which contains the express formulation concerning

the shortening of deadlines, “for this instance.”

The

original constitutional framers, in Art. 9 par. 2 of the Constitution,

placed the democratic principle and the principle of a law-based state

on the same level among the principles that fundamentally identify the

constitutional system of the Czech Republic. As the Constitutional

Court’s case law indicates, violating the principle of generality of

laws falls within the realm of impermissible interference with a

law-based state. Possible exceptions are either cases of accepting

application of law in the form of a statute (e.g. an act on the state

budget), or cases of express authorization to issue an ad hoc statute

(e.g. constitutional acts issued under Art. 11 and Art. 100 par. 3 of

the Constitution) or ad hoc statutes whose issuance is supported by

exceptional reasons that meet the condition of the proportionality test

(e.g. restitution acts containing lists).

In

the absence of a constitutional authorization to issue constitutional

acts ad hoc, the constitutional conformity of a constitutional act

adopted inconsistently with the constitutionally defined scope of the

competence of Parliament could be established only by protection of the

material core under Art. 9 par. 2 of the Constitution. In other words,

protection of the democratic state governed by the rule of law by

adopting an ad hoc constitutional act could be accepted in absolutely

exceptional circumstances (such as a state of war or natural catastrophe

that are not addressed by either the Constitution or by constitutional

Act no. 110/1998 Coll., on the Security of the Czech Republic, as

amended by constitutional Act no. 300/2000 Coll.), but that procedure

would have to meet the requirements that follow from the principle of

proportionality.

3)

In addition to the principle that it is impermissible to hold elections

in time periods that exceed the term of office, Art. 21 par. 2 of the

Charter also enshrines the principle of regular terms of office (regular

exercise of voting rights). The ad hoc constitutional act on shortening

the term of office is inconsistent with the constitutional imperative

of regular election periods, only for one instance, not generally for

the future; it sets an exception to Art. 16 par. 1 of the Constitution.

4)

There is a fundamental difference in the framework shortening the term

of office of the Czech National council by constitutional Act no.

64/1990 Coll., on the one hand, and shortening the term of office of the

Chamber of Deputies of the Parliament of the Czech Republic by

constitutional Acts no. 69/1998 Coll. and no. 195/2009 Coll., on the

other hand. The first of the three cited constitutional acts was adopted

before elections were held and a representative assembly constituted,

and the two others were adopted afterwards. Thus, they retroactively set

the conditions for exercising voting rights (active and passive), The

presumptions on the basis of which the voters decided in the elections

to the Chamber of Deputies were changed with retroactive effect.

The

Constitutional Court considers such circumvention of fundamental

constitutional principles to be incompatible with the principle of the

prohibition on retroactivity, in connection with the principles of

protecting justified confidence by the citizens in the law and the right

to vote freely, i.e. – among other things – the right to vote with

knowledge of the conditions for creating the democratic public

authorities resulting from the elections, including knowledge of their

term of office. The Constitutional Court considers violation of these

constitutional principles arising from Art. 1 par. 1 of the Constitution

to be interference with the essential requirements for a democratic

state governed by the rule of law, enshrined in Art. 9 par. 2 of the

Constitution.

 

 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT

 

IN THE NAME OF THE REPUBLIC

 

On

10 September 2009, the plenum of the Constitutional Court, consisting

of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler,

Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří

Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,

Eliška Wagnerová and Michaela Židlická, ruled in the matter of a

petition from Miloš Melčák, residing at Obeciny IX/3617, 760 01 Zlín,

represented by Jan Kalvoda, attorney, with his registered office at

Bělohorská 35,160 00 Prague 6, seeking the annulment of constitutional

Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the

Chamber of Deputies, filed under § 74 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, as follows:

 

I.

Constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of

Office of the Chamber of Deputies, is annulled as of 10 September 2009.

 

II.

The Decision of the President of the Republic no. 207/2009 Coll., on

Calling Elections to the Chamber of Deputies of the Parliament of the

Czech Republic, countersigned by the Prime Minister, ceases to have

legal effect simultaneously with Act no. 195/2009 Coll., on Shortening

the Fifth Term of Office of the Chamber of Deputies.

 

 

REASONING

 

I.

Description of the Matter and Recapitulation of the Petition

 

In

his constitutional complaint, delivered to the Constitutional Court on

26 August 2009, the complainant seeks the annulment of the Decision of

the President of the Republic no. 207/2009 Coll., on Calling Elections

to the Chamber of Deputies of the Czech Republic, countersigned by the

Prime Minister. At the same time, under § 74 of Act no. 182/1993 Coll.,

on the Constitutional Court, as amended by later regulations, together

with the constitutional complaint, he is filing a petition seeking the

annulment of constitutional Act no. 195/2009 Coll., on shortening the

Fifth Term of Office of the Chamber of Deputies. He feels injured by the

cited decision of the president, in particular as regards his

fundamental right arising from Art. 21 par. 4 of the Charter of

Fundamental Rights and Freedoms (the “Charter”), which, according to the

Constitutional Court’s case law (file no. Pl. ÚS 73/04) also gives rise

to the right to uninterrupted exercise of a public office. He believes

this fundamental right has been violated, not by the unconstitutional

manner in which the legal order was applied and interpreted in the

Decision of the President of the Republic contested by the

constitutional complaint, but by its legal basis, constitutional Act no.

195/2009 Coll., which he considers to be inconsistent with Art. 21 par.

2 and 4, Art. 22 of the Charter and with Art. 9 par. 2, Art. 16 par. 1

and Art. 17 par. 1 of the Constitution.

 

By

resolution of 1 September 2009 ref. no. Pl. ÚS 24/09-16, the

Constitutional Court postponed the enforceability of Decision of the

President of the Republic no. 207/2009 Coll., on Calling Elections to

the Chamber of Deputies of the Parliament of the Czech Republic.

Subsequently, by resolution of 2 September 2009 ref. no. Pl. ÚS 24/09-20

proceedings in the matter of the constitutional complaint from the

complainant Miloš Melčák, conducted as file no. Pl. ÚS 24/09, were

interrupted and the petition to annul constitutional Act no. 195/2009

Coll., on Shortening the Fifth Term of Office of the Chamber of

Deputies, was passed on for a decision under Art. 87 par. 1 let. a) of

the Constitution.

 

In

the reasoning of his petition, the complainant states that

constitutional Act no. 195/2009 Coll. is a constitutional act only

formally, but substantively it contravenes the constitutional order, and

in fact suspends the constitutional order – ad hoc, for one term of

office, suspends its effect for a period arbitrarily chosen by the

momentary qualified majority of deputies and senators, due to which, in

this sense it is not an act that supplements or amends the Constitution

(under Art. 9 par. 1 of the Constitution). He considers the contested

constitutional act to be inconsistent with the constitutional order in

the sense that it changes an essential requirement for a democratic

state governed by the rule of law, which, under Art. 9 par. 2 of the

Constitution cannot be changed. That requirement is that the free

competition among political forces be subject to the same rules, and,

especially, to rules set in advance.

 

The

petitioner then presents the following arguments in support of the

Constitutional Court’s competence to review the constitutionality of the

constitutional act in question: He considers untenable a literal

interpretation of Art. 87 par. 1 let. a) of the Constitution, which

would lead to absurd consequences – to the ability to use a

constitutional act to codify anything, outside the scope of

constitutional review. From that point of view he does not find a

relevant difference between shortening the term of office of the

president or parliamentary deputies and, for example, extending their

mandates for life, again, ad hoc, only of deputies elected to this term

of office; even Art. 21 par. 1 of the Charter, would not be an obstacle

to this “logic,” because any later constitutional act has the same legal

force as the Charter. According to the petitioner, formalistic

insistence on classifying the contested act as a constitutional act,

only on the basis that it was passed by a qualified majority is

inconsistent with a substantive conception of a state governed by the

rule of law, with the fact that the Constitution of the Czech Republic

is not neutral in terms of values; it is founded on the inalienability

of fundamental human and civil rights and also on the presumption that

the “fundamental requirements for a democratic state governed by the

rule of law” cannot be changed. In this sense, the petitioner considers

as part of the constitutional order not only a statute passed by a

qualified majority of Parliament, but one that simultaneously “not

opposing the – unchangeable – essential requirements for a democratic

state governed by the rule of law.” He states his belief that the

contested “constitutional” act does not meet these conditions, and is

therefore not part of the constitutional order. In his opinion, this

conclusion also follows from the statute’s departure from the framework

of Art. 9 par. 1 of the Constitution, because the contested

“constitutional” act does not amend or supplement the Constitution, but

suspends a certain provision in it (on the length of the term of office)

for a particular term of office, and does so retroactively. In other

words, it replaces the suspended constitutional framework, for this term

of office only, with an ad hoc rule based on an agreement between

certain political forces. He is of the opinion that removing or

postponing the enforceability of a particular constitutional provision

for a certain time is appropriate for exceptional situations in the

history of the state, such as threats to its integrity, a state of war,

or natural disasters; however, even such procedures cannot be used

arbitrarily, but only on the basis of constitutional authorization. He

states his belief that, however, the unwillingness of the majority of

political forces to comply with constitutional procedures in

establishing a new government during a particular term of office, is not

such a situation.

 

The

petition goes on to analyze in detail the significance and meaning of

Art. 9 par. 2 of the Constitution, in connection with the guarantees of

democratic, free competition among political forces. It refers to the

Constitutional Court’s legal opinion stated in judgment file no. Pl. ÚS

53/2000 that “Free competition among political forces is based above all

on the fact that all political subjects are governed by the same rules

specified, defined in advance, which are based on these basic

principles. … At the same time, its decision-making may not be

arbitrary, but must respect the constitutional principles that are part

of the basic principles of the constitutionally guaranteed political

system. If the risk of arbitrariness were not ruled out, and even mere

circumvention of these regulations were possible, this would undoubtedly

always lead to violation of constitutional order, its purpose and

meaning, and this would force the intervention of the Constitutional

Court, which is, under Art. 83 and 87, the judicial organ for protection

of constitutionality and lawfulness.” The petitioner considers it a

defining element of a legal norm, including a constitution, essential to

the understanding of a substantive law-based state, that it is binding

for the future, in the same manner, on all who find themselves in a

situation that arises in the future. In his opinion, the idea that

statutorily provided rules could be suspended in a self-serving manner,

and only for a particular instance, would mean accepting arbitrariness

and violating the principle of the rule of law. At this point he also

refers to the Constitutional Court’s legal opinion in judgment file no.

Pl. ÚS 24/04.

 

According

to the petitioner, the contested constitutional act violated the

constitutional prohibition on retroactivity, by retroactively adjusting a

term of office while it was running – the term of office began as a

four-year term (Art. 16 par. 1 of the Constitution) and was

retroactively adjusted (shortened). The petitioner considers this

retroactive effect to be true retroactivity, which is also inconsistent

with the principle of legitimate expectation, and he points to the fact

that the exceptional acceptance of true retroactivity in public law in

the period after World War II was limited to issues of dealing with the

totalitarian past, an example of which is the act on illegality of the

communist regime or restitution legislation. In this matter, however,

similar reasons that would justify true retroactivity do not exist.

 

The

petitioner emphasizes the exceptional significance of the relationship

between elections and the functioning of a democratic law-based state;

he considers a pre-defined term of office to be important for applying

the principles of the sovereignty of the people, equal opportunity, open

political competition, the right of a deputy to uninterrupted exercise

of a mandate during a pre-determined period, and especially for ensuring

protection of the rights of a parliamentary minority. In his opinion, a

possible breach of these principles can be allowed only on the basis of

the Constitution, under conditions generally provided by the

Constitution (those being the conditions of dissolving the Chamber of

Deputies). In this regard he refers to a number of decisions in which

the Constitutional Court spoke on protection of the cited principles

(file no. II. ÚS 275/96, Pl. ÚS 24/04, Pl. ÚS 73/04). Insofar as the

Constitutional Court, in judgment file no. Pl. ÚS 73/04, derives the

limits of the judicial branch’s ability to annul elections due to

election offenses, on the grounds that it is impermissible to change the

will of the sovereign by a decision by the judicial branch, then,

according to the petitioner, it is all the less permissible for the

legislative branch.

 

The

petitioner rejects the argument that the constitution can codify

everything that receives a constitutional majority, regardless of the

provision that the essential requirements for a democratic state

governed by the rule of law cannot be changed. He states his belief that

these requirements must also include the predictability of the law,

which comes from it being general, as well as the opinion that the

Constitutional Court already stated this thesis in judgment file no. Pl.

ÚS 77/06: “In a substantive law-based state, a statute in the formal

sense cannot be understood as a mere repository of a wide variety of

changes made throughout the legal order. On the contrary, the

substantive conception of the law-based state requires that a statute

be, both in terms of form and substance, a predictable, consistent

source of law.” He also points out, again with reference to the

Constitutional Court’s case law (file no. Pl. ÚS 73/04) – the importance

of fair conditions for political competition. Here he stresses the

difference between shortening the term of office of the Chamber of

Deputies for one instance, and the general rule for dissolving it. He is

aware that in the world’s democratic countries there are various

constitutional models for dissolving parliaments and calling early

elections. In his opinion, in terms of Art. 9 par. 2 of the

Constitution, it is possible to enshrine such a model through a general

amendment to the Constitution, but it is not possible to rely on the

democratic character of a state, proceed formally within the framework

of its constitution, and simultaneously suspend the essential,

substantive requirements that guarantee its democratic and law-based

character.

 

The

petitioner analyzes the purpose of the mechanism for dissolving the

Chamber of Deputies, tied to a vote of no confidence in the government

(or a refusal to give a vote of confidence), as it is enshrined in the

Constitution; he states that this mechanism makes the fall of the

government conditional on a seriously intended decision by the

opposition to form a government, that it aims to rule out demonstrative,

non-serious attempts to destabilize the government, that it lays a

precisely weighed responsibility on the participants in political

competition.

 

In

his opinion, circumventing this procedure by shortening the term of

office of the Chamber of Deputies makes political competition unequal,

and preserves the existing circle of competitors, because new political

parties or movements will necessarily find themselves under time

pressure, if they were aiming their involvement in the contest toward

the regular date of elections. He emphasizes that, in terms of political

competition, the time when elections to the representative body are

held is not politically neutral – in the case of early elections, the

only legitimate date is one that arises from procedures described in

advance by the Constitution. Therefore, he considers that the contested

constitutional act has violated the principle of equal opportunity in

political competition (which he supports by reference to the

Constitutional Court’s legal opinion stated in judgment file no. Pl. ÚS

53/2000). He expressly states in this regard: “The modus operandi of

constitutional offenders lies in the fact that the Constitution, or its

essential requirements guaranteeing the rules of political competition,

are not annulled for a particular time, but are ignored, suspended. Yet,

nothing prevents the momentary constitutional majority from amending or

supplementing the Constitution – it can codify any easy manner of

calling early elections for the next time. A new constitutional rule

would be established, to replace the existing one, the next time, and it

would mean free (equal and open) competition between political forces

in the future, it would conform to the constitutional order, i.e. the

essential requirements for a democratic state governed by the rule of

law. However, the majority does not do that; for the next time it again

returns to the rigid procedure of calling new elections; until such time

as the momentary majority again decides that it is politically suitable

– for it – to ignore the constitutional procedure again and get out of

political competition through an ad hoc statute.”

 

From

a historic viewpoint the petitioner points out that the contested

constitutional law is identical in content with the one adopted in 1998,

and the political circumstances are also analogous. He considers the

argument of “constitutional habit” established by the procedure in 1998

to be unacceptable, and outlines the political-cultural consequences of

breaching constitutional principles.

 

In

his opinion, constitutional Act no. 195/2009 Coll., because it changes

the rules of free, equal and open political competition, which is among

the essential requirements of a democratic, law-based state, by

suspending the Constitution for one instance, retroactively and in a

manner that limits the sovereignty of the people, is thus inconsistent

with Art. 21 par. 2 and 4, Art. 22 of the Charter a Art. 9 par. 2, Art.

16 par. 1 and Art. 17 par. 1 of the Constitution. For all these reasons,

thus presented, he proposes that constitutional Act no. 195/2009 Coll.,

on Shortening the Fifth Term of Office of the Chamber of Deputies, be

annulled.

 

 

II.

Recapitulation of the Essential Parts of Responses from the Parties to the Proceeding

 

Under

§ 42 par. 4 and § 69 of Act no. 182/1993 Coll., on the Constitutional

Court, as amended by later regulations, the Constitutional Court sent

the petition to the Chamber of Deputies. In his response, delivered to

the Constitutional Court on 4 September 2009, the Chairman of the

Chamber of Deputies of the Parliament of the Czech Republic, Ing.

Miloslav Vlček, states that in debate on the bill of the adjudicated

constitutional act the question of adopting a special constitutional act

was discussed in detail, alternatives for resolving the current

political situations were raised, the reservations that certain experts

and politicians had to the proposed practical solution were raised and

discussed, and the possibility of a general constitutional amendment to

the rules for dissolving the Chamber of Deputies was considered. The

need to respect the essential requirements for a democratic, law-based

state was emphasized.

 

With

reference to the Constitutional Court’s opinion on the function of a

party’s response in a proceeding on review of norms (file no. Pl. ÚS

24/07), over and above the routine response from the chamber, the

Chairman of the Chamber of Deputies states that constitutional Act no.

195/2009 Coll. was adopted on the basis of wide political consensus,

both chambers of Parliament consented to it in a constitutionally

prescribed manner, it was signed by the appropriate constitutional

authorities, and duly promulgated. In his opinion, the content of the

cited constitutional act does not conflict with the substantive

requirements of the democratic legal order, because the shortening of

the term of office of the Chamber of Deputies is tied to holding new

elections to the Chamber of Deputies. Shortening the term of office of

the Chamber of Deputies does not violate the principle of the

sovereignty of the people; on the contrary it leads to the need for

members of the legislative assembly to give an accounting to the

citizens earlier, which does not conflict with the requirements of

democracy or of a law-based state. The present constitutional act

changes nothing about the fact that the legislative assembly is

constituted on the basis of duly held elections, and regularly answers

to the citizens, in elections, for its activities.

 

The

response also contains the personal opinion of the Chairman of the

Chamber of Deputies, that the Constitutional Court, under the valid

wording of the Constitution, is not competent to review the

“constitutionality” of constitutional acts and to annul constitutional

acts. If the Constitutional Court adopted such authority, it would set

itself above the constitutional framers. It is the obligation of the

constitutional framers to ensure that adopted constitutional acts do not

deviate from what is, under Art. 9 par. 2 of the Constitution,

compatible with democracy and with a state governed by the rule of law.

 

Under

§ 42 par. 4 and § 69 of Act no. 182/1993 Coll., as amended by later

regulations, the Constitutional Court also sent the petition to the

Senate of the Parliament of the Czech Republic. In the introduction of

the Senate’s response, delivered to the Constitutional Court on 4

September 2009, its chairman, MUDr. Přemysl Sobotka, recapitulates the

course of debate of the constitutional act in the Senate, and in

particular recapitulates the arguments for and against adopting it.

 

Among

the former, he cites the opinion that although the one-time

constitutional act displays some non-systematic features, but that

defect is not of such intensity that adopting the act could endanger or

violate the principles of a democratic law-based state. A one-time

shortening of the term of office of the Chamber of Deputies is not a new

institution in our legal order, because it was already “used

successfully” once in constitutional Act no. 69/1998 Coll., and

therefore, there is no reason why the Parliament could not now choose

the same path for shortening the fifth term of office of the Chamber of

Deputies, because this solution can speedily open the path to early

parliamentary elections and thus end a period of political instability.

 

Among

the criticisms of the adopted law, the response refers to the statement

from the Senate Permanent Commission for the Constitution of the Czech

Republic and Parliamentary Procedure, adopted at its 6th meeting, held

on 27 May 2009, in which the Commission concluded that the proposed

constitutional act goes against the purpose of the Constitution as a

system of general rules of governing, known in advance, interferes in

the relationship between the deputies and the citizens, as well as in

the competence of the Senate, and adopting it is certainly not the only

way to arrange early elections to the Chamber of Deputies.

 

In

conclusion, the Chairman of the Senate states that the Senate discussed

the draft constitutional act within the bounds of constitutionally

specified competence and in a constitutionally prescribed manner, and

approved the contested constitutional framework by a majority, with the

knowledge that its substance was not inconsistent with Art. 9 par. 2 of

the Constitution or with other norms that are part of the constitutional

order; he leaves the evaluation of the petitioner’s objections fully in

the Constitutional Court’s discretion.

 

In

view of the exceptional urgency of the matter, the Constitutional Court

shortened the deadline under § 69 par. 1 of Act no. 182/1993 Coll. and

simultaneously notified both chambers of the Parliament of the CR of

their opportunity to state, immediately after receiving the petition for

a response, that they consider the time given by the deadline to be

insufficient. The party to the proceeding accepted the Constitutional

Court’s actions and sent the response to the petition by the deadline

specified.

 

 

III.

Hearing

 

At

the hearing, no proposals were made to supplement the evidence, and no

new facts beyond the framework of the petition and written responses to

it arose from the testimony of the parties to the proceeding or their

responses to the judges’ questions.

 

 

IV.

The

Imperative of the Non-changeability of the Material Core of the

Constitution of the Czech Republic (Art. 9 par. 2 of the Constitution)

and its Impact on Art. 87 par. 1 let. a) of the Constitution

 

In

its first judgment in a proceeding on review of norms, in the matter of

the constitutionality of Act no. 198/1993 Coll., on the Illegality of

the Communist Regime and on Resistance to It, file no. Pl. ÚS 19/93, the

Constitutional Court formulated fundamental these for the

interpretation and understanding of the imperative of the

non-changeability of the material core of the Constitution: “In its

later development, the legal positivism tradition … revealed … its

weaknesses several times. Constitutions constructed on these foundations

are neutral as to values: they form an institutional and procedural

framework, which can be filled with very different political content,

because observing the jurisdictional and procedural framework of

constitutional institutions and procedures, i.e. criteria of a formally

rational nature, becomes the criterion for constitutionality. … The

awareness that injustice must remain injustice, even if it is wrapped in

the cloak of the law, was reflected in the constitution of post-war

Germany, and at present also in the Constitution of the Czech Republic.

Our new constitution is not established on neutrality of values, it is

not merely a definition of institutions and processes, but incorporates

in its text certain regulatory ideas, expressing the basic untouchable

values of a democratic society. … Czech law is not based on the

supremacy of laws. The fact that statutes are superior to lower legal

norms does not yet mean that they are sovereign. Even in the sense of

the scope of legislative competence within a constitutional state, one

cannot speak of the sovereignty of laws. In the concept of a

constitutional state on which the Czech Constitution is based, law and

justice are not subject to the discretion of the legislature, and thus

of laws, because the legislature is bound by certain fundamental values

that the Constitution declares to be untouchable. For example, the Czech

Constitution provides in Art. 9 par. 2 that ‘any change in the

essential requirements for a democratic state governed by the rule of

law is impermissible.’ This places the constitutive principles of a

democratic society, within this constitution, above legislative

competence, and thus ‘ultra vires’ of Parliament. A constitutional state

stands and falls with these principles. Removal of one of these

principles, by anyone, even by a majority or unanimous decision of

Parliament, could not be interpreted otherwise than as removal of this

constitutional state as such.”

 

In

judgment file no. Pl. ÚS 36/01 the Constitutional Court applied Art. 9

par. 2 of the Constitution in the position of a basic rule for

interpretation of the Constitution and amendments to it: “The

constitutional maxim in Art. 9 par. 2 of the Constitution has

consequences not only for the framers of the constitution, but also for

the Constitutional Court. The inadmissibility of changing the

substantive requirements of a democratic state based on the rule of law

also contains an instruction to the Constitutional Court, that no

amendment to the Constitution can be interpreted in such a way that it

would result in limiting an already achieved procedural level of

protection for fundamental rights and freedoms.” In this connection, we

must also mention judgment file no. Pl. ÚS 11/02, in which the Court

also included in Art. 9 par. 2 of the Constitution the guarantee of

ruling out arbitrariness in its own interpretation of the constitutional

order: “If the Constitutional Court itself, as a constitutional body,

i.e. a public authority, is not to act arbitrarily, the Constitutional

Court also being subject to the prohibition on arbitrary conduct,

because it too, or it especially, is required to respect the framework

of the constitutional state, in which arbitrary conduct by public

authorities is strictly forbidden, it must feel bound by its own

decisions, and can depart from them through its case law only under

certain circumstances. This postulate can be described as an essential

requirement for a democratic state governed by the rule of law (Art. 1

par. 1, in connection with Art. 9, par. 2 of the Constitution.)”

 

In

a number of its decisions the Constitutional Court also outlined the

meaning of the term “essential requirements for a democratic state

governed by the rule of law” under Art. 9 par. 2 of the Constitution. In

judgment file no. III. ÚS 31/97 it stated: “The concept of a democratic

state under Art. 9 par. 2 of the Constitution is interpreted by the

Constitutional Court, as well as by doctrine. In its decision in the

matter file no. Pl. ÚS 19/93, the Constitutional Court included in this

concept a substantive, not a formal, understanding of a state governed

by the rule of law.” The court also referred to doctrinaire positions,

according to which the essential requirements for a democratic state

governed by the rule of law under Art. 9 par. 2 and 3 of the

Constitution include “above all the sovereignty of the people and the

principles contained in Art. 5 and 6 of the Constitution and the natural

law provisions of the Charter of Fundamental Rights and Freedoms, which

establish a constitutional right to resistance (Art. 23 of the

Charter)“ , or, in other words, these requirements are “concentrated in

several articles of Chapter I of the Constitution and in Chapter I and V

of the Charter, and ceremonially declared in the Preamble to the

Constitution“ . From a comparative perspective, the Constitutional Court

also pointed to Art. 79 par. 3 of the Grundgesetz of Germany, Art. 110

par. 1 of the Constitution of the Greek Republic, and Art. 288 of the

Constitution of the Portuguese Republic.

 

The

Constitutional Court also included in the material focus of the legal

order – consistently with the doctrinaire opinion – the fundamental

principles of election law (judgment file no. Pl. ÚS 42/2000).

 

We

can draw several general conclusions from these decisions: in its case

law, the Constitutional Court emphatically made clear the need to

protect the material focus of the constitutional order, and, partly

abstractly and partly casuistically, indicated its structure, as well as

the fact that its consequences apply not only to the democratic

legislature, but to the Constitutional Court itself. When (file no. Pl.

ÚS 36/01) it was faced with a constitutional act (amending and

supplementing the Constitution) that the Court considered to be

inconsistent with the material focus of the Constitution (Art. 9 par.

2), it then proceeded using a method of interpretation that conformed to

the safeguards arising from Art. 9 par. 2 (i.e. by analogy, with the

principle of giving priority to a consistent interpretation over

derogation). It maintained this legal opinion in its further case law

(file no. Pl. ÚS 44/02 and I. ÚS 752/02).

 

Where

the Constitutional Court, in judgment file no. Pl. ÚS 21/01, departed

from previous settled case law, this legal opinion was not part of the

essential grounds for that decision, and was stated only as obiter

dictum. In this regard, democratic constitutional law theory agrees that

it is relevant to the binding nature of a precedent to distinguish the

importance of ratio decidendi and obiter dicta: “the written opinion of

the precedent-setting court is not binding in its entirety; only the

grounds for the decision, the ratio decidendi, are binding.”

 

The

constitutional development in the Czech Republic is in line with the

constitutional development of European democracies in the protection of

the constitutive principles of a democratic society.

 

The

authors of the German Grundgesetz (Fundamental Law) of 1949 responded

to German history of 1919-1945 by, among other things, removing the

“material focus of the Constitution” from the discretion of the

constitutional framers; in other words, by enshrining the “imperative of

non-changeability” (Ewigkeitsklausel). Under it, amendment to the

Grundgesetz concerning the fundamental principles of federal

organization, the basic principles of protection of human rights, a

law-based state, the sovereignty of the people, and the right to civil

disobedience is impermissible (Art. 79 par. 3 of the Grundgesetz).

According to the doctrine and case law of the German Constitutional

Court, the consequence of this framework of non-changeability of the

“material core” of the Constitution is a procedure where the German

Constitutional Court would rule, with final effect, on the inconsistency

of a constitutional act with the material core of the constitution;

this includes the possibility that it would declare the amendment to the

Grundgesetz invalid. The doctrinaire opinion that the German

Constitutional Court is competent to rule that a constitutional act

amending the Grundgesetz inconsistently with Art. 79 par. 3 is invalid,

became accepted when the Grundgesetz went into effect, and was

subsequently confirmed by the case law of the German Constitutional

Court (BVerfGE, 30, 1/24).

 

The

Constitution of the Austrian Republic defines procedural limitations on

the constitutional framers for the Constitution’s material focus, and

also establishes the competence of the Constitutional Court in that

regard. In Austrian constitutional law theory, “land and federal

statutes, both ordinary and constitutional acts, are within the review

competence of the Constitutional Court.” This competence is derived, out

of the group of federal constitutional acts, from Art. 140 of the

Federal Constitution, which establishes the general competence of the

Court in reviewing norms, in connection with Art. 44 par. 3 of the

Federal Constitution, under which a complete revision of the

Constitution, or a partial revision, if one third of members of the

National Council Federal Council request it, must be approved by a

referendum. Doctrinaire opinion is that it is up to the Constitutional

Court to review, including through an a posteriori review of norms,

whether this procedure has been observed in terms of an amending

intervention by the constitutional framers in the “material focus of the

Constitution.” It includes among the components of that focus, a

representative democracy, federal organization, a liberal law-based

state and the separation of powers. This opinion is also based on the

legal opinion of the Austrian Constitutional Court, stated in decisions

VfSlg. 11.584, 11.756, 11.827, 11.916, 11.918, 11.927, 11.972. Starting

from the criticism that legislative practice circumvents the authority

of the Constitutional Court by adopting constitutional acts in areas of

simple law, the Court concludes that the constitutional framers cannot,

in this manner “head toward” breaching the fundamental principles of the

Federal Constitution.

 

This

line of decisions was also confirmed by the Court’s other case law. The

decision of 11 November 2001 VfGH 16.327 reviewed the constitutionality

of a statutory provision to which the Parliament ascribed the force of a

constitutional provision, § 126a of the Act on Public Procurements,

under which “provisions of land statutes valid as of 1 January 2001,

concerning the organization and competence of bodies that are

responsible for legal protection concerning public procurement, are

deemed to be not inconsistent with the Federal Constitution.” The

Constitutional Court previously distinguished simple and qualified

constitutional law (i.e. constitutional law that forms the material core

of the Constitution under Art. 44 par. 3). It stated that, for the

purpose of protecting “the existing core of the Constitution,” the

constitutional framers of simple constitutional law are not permitted to

completely suspend the binding nature of the Federal Constitution for a

component field of the legal order (regardless of the importance of

that component field). In this regard, the Constitutional Court did not

consider it necessary to review whether proceedings under Art. 44 par. 3

of the Federal Constitution came into consideration. It stated that

suspending the Constitution is inconsistent with the principles of

democracy and with a law-based state, and is not within the discretion

of the constitutional framers under Art. 44 par. 1 of the Federal

Constitution. On the basis of these arguments, and although, under the

literal wording of Art. 140 par. 1 of the Federal Constitution, the

Constitutional Court decides “on the unconstitutionality of federal and

land statutes, the Constitutional Court annulled § 126a of the Act on

Public Procurement, described by the constitutional framers as a

provision of a constitutional act and adopted by a procedure under Art.

44 par. 1 of the Federal Constitution.

 

The

development of democratic constitutionality in democratic countries at

present emphasizes the protection of values that identify the

constitutional system of freedom and democracy, which includes the

possibility of judicial review of constitutional amendments.

 

Just

as in Germany Art. 79 par. 3 of the Grundgesetz is a reaction to the

undemocratic developments and Nazi despotism in the period before 1945

(and analogously, Art. 44 par. 3 of the Federal Constitution of the

Austrian Republic), Art. 9 par. 2 of the Constitution is the result of

experience with the decline of legal culture and suppression of

fundamental rights during the forty-year rule of the communist regime in

Czechoslovakia. Therefore, as a result of this analogy, interpretation

of Art. 79 par. 3 of the Grundgesetz by the German Federal

Constitutional Court and similar steps in other democratic countries are

deeply inspiring for the Constitutional Court of the Czech Republic.

 

Insofar

as the Constitutional Court articulates the need to include the

category of constitutional acts within the term “statute” in Art. 87

par. 1 let. a) of the Constitution, in terms of reviewing them for

consistency with Art. 9 par. 2 of the Constitution, with direct

derogative consequences, it does so in connection to its case law,

beginning with the key judgment file no. Pl. ÚS 19/93, and does so in

accordance with the values and principles that guide constitutional

systems in democratic countries. Protection of the material core of the

Constitution, i.e. the imperative that the essential requirements for a

democratic state governed by the rule of law, under Art. 9 par. 2 of the

Constitution, are non-changeable, is not a mere slogan or proclamation,

but a constitutional provision with normative consequences. In No. 78

of The Federalist Papers, Alexander Hamilton wrote that “the courts were

designed to be an intermediate body between the people and the

legislature, in order, among other things, to keep the latter within the

limits assigned to their authority.” Without the projection of Art. 9

par. 2 of the Constitution into interpretation of Art. 87 par. 1 let. a)

of the Constitution, the non-changeability of the essential

requirements for a democratic state governed by the rule of law would

lose its normative nature and remain merely a political, or moral

challenge.

 

The

Constitutional Court notes, only secondarily, that for those situations

where the category of constitutional acts needs to be excluded from the

term “statute,” the wording of the Constitution expressly enshrines

this fact [see Art. 50 par. 1, Art. 62 let. h) of the Constitution].

 

 

V.

Constitutional Conformity of the Legislative Process

 

Starting

with the interpretation of Art. 87 par. 1 let. a) of the Constitution

thus presented, the Constitutional Court, in accordance with § 68 par. 2

of Act no. 182/1993 Coll., as amended by later regulations, as is the

rule in proceedings on the review of norms, in this matter too is

required to evaluate whether the contested constitutional act was

adopted and issued within the bounds of constitutionally prescribed

competence and in a constitutionally prescribed manner.

 

Chamber

of Deputies publications and stenographic records, as well as the

response to the party to the proceeding, the Parliament of the Czech

Republic, showed that the Chamber of Deputies approved the draft of the

act in question, i.e. constitutional Act no. 195/2009 Coll., on

Shortening the Fifth Term of Office of the Chamber of Deputies, in the

third reading at its 56th session on 13 May 2009 by resolution no. 1207,

when out of 189 deputies present, 172 deputies voted in favor, and 9

were against.

 

On

28 May 2009, the plenum of the Senate discussed the draft act at 7th

session of its seventh term of office, and approved the draft act by

resolution no. 181. In vote no. 4, out of 71 senators present, 56 were

in favor of the act, 8 were against, and 7 abstained.

 

The

constitutional act was signed by the appropriate constitutional

authorities and was duly promulgated as no. 195/2009 Coll. in part 58 of

the Collection of Laws, which was distributed on 29 June 2009, and

under Art. 3 it went into effect on the day it was promulgated, i.e. on

29 June 2009.

 

 

VI.

Breach

of the Constitution by an Ad Hoc Constitutional Act (a Constitutional

Act for an Individual Instance) and Conflict with the Essential

Requirements for a Democratic State Governed by the Rule of Law

 

The

aims of adopting constitutional Act no. 195/2009 Coll. are expressed in

the background report to the draft constitutional Act on Shortening the

Fifth Term of Office of the Chamber of Deputies, submitted by Deputies

Petr Tluchoř, Bohuslav Sobotka and Přemysl Rabas (Chamber of Deputies

publication 796): “In view of the present distribution of political

parties in the Chamber of Deputies, where, under Art. 68 par. 3 of the

Constitution, the newly appointed government must seek a vote of

confidence within 30 days after it is named, and in view of the fact

that the Chamber of Deputies can be dissolved and new elections called

only when three governments in a row have failed to obtain a vote of

confidence in the Chamber of Deputies [Art. 35 par. 1 let. a) of the

Constitution], the Czech Republic faces the danger of a lengthy period

of instability and political crisis. A constitutionally legitimate means

for resolving this situation is to hold early elections, in which the

citizens can newly express their will, and from which a new Chamber of

Deputies can be formed, able to give the government and the Czech

Republic the political foundations necessary to stabilize the

constitutional, political and economic conditions. … Thus, the proposed

constitutional act proposes a solution that Parliament already selected

in the 1990s in order to hold early elections to the Chamber of Deputies

in 1998. The political representatives of that time (the government and

both chambers of Parliament) also came to an agreement on calling early

elections through a special constitutional act. … Thus, this is a path

to organizing new elections to the Chamber of Deputies that is already

familiar to our constitutional practice. The proposed constitutional act

does not conflict with the essential requirements for a democratic

state governed by the rule of law, which, under Art. 9 par. 2 of the

Constitution, may not be changed. In particular, it respects Art. 21

par. 2 of the Charter of Fundamental Rights and Freedoms, under which

elections must be held by deadlines that do not exceed the regular terms

of office provided by law.”

 

During

parliamentary debate on the proposed constitutional act, arguments were

also heard against adopting it, from various political parties (see,

e.g. the statement by Deputy Cyril Svoboda at the 56th session of the

Chamber of Deputies of the Parliament of the CR on 28 April 2009

[http://www.psp.cz/eknih/2006ps/stenprot/056schuz/s056014.htm], Senators

Tomáš Töpfer, Petr Pithart and Soňa Paukrtová at the 7th session of the

Senate of the Parliament of the CR on 28 May 2009

[http://www.senat.cz/xqw/xervlet/pssenat/hlasovani?action=steno&O=7&IS=4129&T=75#st75]).

 

The

Senate Permanent Commission for the Constitution of the Czech Republic

and Parliamentary Procedure, at its 6th meeting, held on 27 May 2009,

unanimously adopted a position on the draft constitutional Act on

Shortening the Fifth Term of Office of the Chamber of Deputies (Senate

publication 75) in which it said: “The submitted draft constitutional

act is not an amendment to the Constitution in the form of formulation

of a general rule. It takes no notice of constitutional mechanisms –

does not change them, supplement them, or formally annul them, merely,

for this one instance, provides a different way to reach early

elections. The dispute is not about early elections, but about the route

to them – systematic and constitutional on the one hand, or ad hoc on

the other hand. Therefore, referring to the right of the people to

decide who will rule them (see the background report to Chamber of

Deputies publication 796) is not a relevant argument. … The model for

the draft is constitutional Act no. 69/1998 Coll. Unlike in that case,

however, the element of surprise is lacking, because the problem is

known, and solutions have been proposed. If the route of adopting ad hoc

constitutional acts were to become routine, the Constitution would

never change, because it would be unnecessary. In that case, of course,

there is the danger that it will diverge from constitutional and

political reality – it will become a “façade.” At the same time, every

political crisis will turn into a constitutional crisis, because it will

be addressed by a constitutional act. … There are doubts about the

“constitutionality” of this draft act. The Commission recognizes the

possible existence of “unconstitutional constitutional acts,” or maybe

rather only imaginary ones, because they are constitutional acts adopted

outside the competence (ultra vires) of the constitutional framers, if

they are inconsistent with the essential requirements for a democratic

state governed by the rule of law, which Art. 9 par. 2 of the

Constitution declares it is impermissible to change. If this were not

so, the cited provision would have no normative meaning. … The draft

constitutional act goes against the purpose of the Constitution as a

system of general rules of government, known in advance; it interferes

in the relationship between the deputies and the citizens, as well as in

the competence of the Senate. Adopting it is certainly not the only way

to achieve early elections to the Chamber of Deputies, and it will

certainly reduce the pressure for any amendment to the Constitution.

Not, however, to the benefit of its stability, but with the risk of ad

hoc circumvention.”

 

The

petition to annul constitutional Act no. 195/2009 Coll., the response

from the party to the proceeding, as well as the opposing arguments

expressed during parliamentary debate, all raise these fundamental

questions for the Constitutional Court: Under the Constitution, what

definitional, conceptual elements define the category of constitutional

acts? Is an act automatically a constitutional act if it is labeled as

such by the Parliament of the Czech Republic and is adopted by a

procedure under Art. 39 par. 4 of the Constitution? Or must it also meet

other conditions: the condition of competence (authorization) under

Art. 9 par. 1 of the Constitution or another express constitutional

authorization (Art. 2 par. 2, Art. 10a par. 2, Art. 11, Art. 100 par.

3), and the substantive condition provided in Art. 9 par. 2 of the

Constitution?

 

 

VI./a

Generality of a Constitutional Act as an Essential Requirement of a State Governed by the Rule of Law

 

The

constitutional practice of the Weimar Republic in 1919 to 1933 was

marked by regular breaches of the constitution by special constitutional

acts, including for an individual case (which led to the constitution

being poorly organized and unstable). A bitter debate on the

permissibility of breaching the constitution was led by the positivists

(P. Laband, G. Jellinek, G. Anschütz, S. Jaselsohn, W. Jellinek) ane the

substantively (value) oriented constitutionalists (C. Schmitt, G.

Leibholz, C. Bilfinger). Since that time, European constitutional theory

understands breaching the constitution to be the following procedure by

parliament: “In a breach, the constitutional law provision is not

amended, but a deviating directive is made in an individual case – while

leaving it generally valid for other cases. … Such breaches are, by

their nature, measures, and not norms, which is why they are not

statutes in the state-law sense of the word, and as a result are also

not constitutional acts. … The legislature, as a legislature, can only

issue statutes, but it cannot breach them; the question concerns not

legislative activity, but sovereignty.“

 

The

German Grundgesetz of 1949, reacting to the practices of the Weimar

Republic and its outcomes, established a framework under which it can be

changed only by a statute that expressly amends or supplements the text

of the Grundgesetz (Art. 79 par. 1 first sentence of the Grundgesetz).

This constitutional provision rules out, does not permit the possibility

of breaching the Grundgesetz.

 

The

impermissibility of breaching the constitution with an ad hoc

constitutional act (for a single instance) is also emphasized in other

democratic European countries.

 

The

fact that statutes (i.e. fixed legal norms) should be of a general

nature is not an expectation of the civil law-based state developed only

in the 19th century. This idea accompanies all European legal history.

It is found in the maxims of the great Roman lawyers, is lost in the

Middle Ages, and comes to life again in the era of enlightenment and

rationalism. Generality of content is the ideal, typical, and essential

element of a statute, compared to court decisions, or government and

administrative acts. The purpose of dividing state powers into the

legislative, executive and judicial branches is to entrust the general

and primary ruling of the state to the legislature, derivative general

ruling and decision making about individual cases to the administrative

branch, and exclusively only decision making on individual cases to the

judiciary. The requirement that a statute be general is an important

component of the principle of the rule of law and thus also of a state

governed by the rule of law. As F. A. Hayek, one of the most important

20th century theoreticians of the law-based state, says: “[There is] the

belief that so long as all actions of the state are duly authorized by

legislation, the Rule of Law will be preserved. But this is completely

to misconceive the meaning of the Rule of Law. … The Rule of Law thus

implies limits to the scope of legislation: it restricts it to the kind

of general rules known as formal law, and excludes legislation …

directly aimed at particular people….”

 

In

a number of its decisions, the Constitutional Court has repeatedly

spoken on the requirement that a legal regulation be general. In

judgments file no. Pl. ÚS 55/2000 and Pl. ÚS 24/04 it stated the

following: “The fundamental principles of a substantive law-based state

include the maxim that legal regulations must be general (the

requirements that a statute, or legal regulations, be general). The

generality of content is an ideal, typical, and essential element of a

statute (or a legal regulation generally), in relation to judicial

decisions, government and administrative acts. The purpose of dividing

state powers into the legislative, executive and judicial branches is to

entrust the general and primary ruling of the state to the legislature,

derivative ruling and decision making about individual cases to the

administrative branch, and exclusively only decision making on

individual cases to the judiciary. This outline of the definitive

element of the term statute (or legal regulation) then gives rise to the

term statute (legal regulation) in the substantive sense, from which we

must distinguish statutes (legal regulations) in the formal sense. If

statutes, in the formal sense, are the acts of a legislative body

through which it ‘permits, or approves certain specific measures by the

executive bodies (the state budget, national treaties, etc.),’

traditional scholarship believes that in such cases the legislative body

issues – in the form of statutes – administrative acts.’ (F. Weyr,

Československé ústavní právo [Czechoslovak Constitutional Law], Prague

1937, p. 37) ... Although they may be sources of law by their form (a

legal regulation), by their substance they are also application of law.”

 

The

Constitutional Court analyzed the arguments in favor of generality of

legal regulations in judgment file no. Pl. ÚS 12/02, in which it stated:

“However, in this matter these viewpoints must be applied to review of a

statute that governs a unique instance, and which therefore deviates

from one of the fundamental material elements of the term “statute,”

which is generality. Let us point out that the requirements that a

statute be general is an important elements of the principle of the rule

of law and likewise the law-based state. …A special argument against

statutes that govern individual cases is the principle of separation of

powers, i.e. the separation of the legislative, executive and judicial

branches in a democratic, law-based state. Art. I sec. 9 of the

Constitution of the USA said in this regard: ‘No Bill of Attainder or ex

post facto Law shall be passed.’”

 

The

Constitutional Court considered the question of ruling out judicial

review in the case of an individual legal regulation in judgment file

no. Pl. ÚS 40/02, where it stated “An individual regulation contained in

a legal regulation that deprives the addressees of the possibility of

judicial review of the fulfillment of general conditions of the

normative framework by a particular subject, which lacks transparent and

acceptable justification in relation to the possibility of general

regulation, must thus be considered inconsistent with the principle of a

state governed by the rule of law (Art. 1 of the Constitution), in

which the separation of powers and judicial protection of rights are

immanent (Art. 81, Art. 90 of the Constitution).”

 

Thus,

arguments in favor of the generality of law are the separation of

powers, equality, and the right to an independent judge, and the removal

of capriciousness (arbitrariness) in the exercise of state power.

 

Under

Art. 9 par. 1, the Constitution can be supplemented or amended only by

constitutional acts. Moreover, in a number of its provisions the

Constitution expressly authorizes Parliament to issue constitutional

acts that govern a precisely defined subject matter (Art. 2 par. 2, Art.

10a par. 2, Art. 11, Art. 100 par. 3). To evaluate the

constitutionality of respecting competence in issuing constitutional Act

no. 195/2009 Coll. we must also answer the question of whether an ad

hoc constitutional act (for an individual instance) can be included in

the framework of permissible constitutional amendments under Art. 9 par.

1 of the Constitution.

 

An

ad hoc constitutional act (for an individual instance) is not a

supplement or amendment to the Constitution. In content, a

constitutional act for an individual instance can take two forms –

either it involves time-limited suspension of the Constitution, or a

substantive, or personal, exception from the general validity of the

constitutional framework.

 

A

supplement to the constitution can be characterized by the fact that

the supplemented constitutional provision does not change, and the

supplemented and supplementing provisions are not inconsistent. An

amendment to the constitution means that a particular constitutional

provision is annulled or partly annulled and perhaps (not necessarily) a

new provision is established. In a breach, the constitution is not

annulled, but the breached (in this case, suspended) provision and the

breaching (in this case, suspending) provision are inconsistent.

 

Constitutional

Act no. 195/2009 Coll. is a constitutional act only in form, but not in

substance. In substance it is an individual legal act affecting not a

generally defined circle of addressees and situations, but a

specifically designated subject (the Chamber of Deputies of the

Parliament of the Czech Republic elected in 2006) and a specific

situation (ending its term of office on the day of elections, which are

to be held by 15 October 2009, and shortening deadlines under the Act on

Elections to the Parliament of the Czech Republic and under the

Administrative Procedure Code, only for this instance). This fact is

expressly stated not only in Art. 1 of this constitutional Act, but also

in Art. 2 (which is a direct amendment to statutes implemented by the

constitutional act!), which contains the express formulation concerning

the shortening of deadlines, “for this instance.”

 

If

the Constitutional Court is forced to answer the question of whether

Art. 9 par. 1 of the Constitution also authorizes Parliament to issue

individual legal acts in the form of constitutional acts (e.g. to issue

criminal verdicts against specific persons for specific actions, to

issue administrative decisions on expropriation, to shorten the term of

office of a particular official of a state body, etc.), the answer is –

no! The Constitutional Court also stated the substantive view for

reviewing the sources of law absolutely unambiguously in judgment file

no. Pl. ÚS 24/99: “The concept of a law-based state, which is enshrined

in Art. 1 of the Constitution, gives rise to the principle that neither

the legislature nor the executive can deal arbitrarily with the forms of

law, i.e. with the sources of law; but they must be guided by the

viewpoints of the constitutional framers, as well as by other

viewpoints, in particular transparency, accessibility and clarity. In

the opinion of the plenum of the Constitutional Court, classification of

the sources of law must be derived, first of all, from the content of a

legal norm.”

 

The

original constitutional framers, in Art. 9 par. 2 of the Constitution,

placed the democratic principle and the principle of a law-based state

on the same level among the principles that fundamentally identify the

constitutional system of the Czech Republic. As the Constitutional

Court’s case law indicates, violating the principle of generality of

laws falls within the realm of impermissible interference with a

law-based state. Possible exceptions are either cases of accepting

application of law in the form of a statute (e.g. an act on the state

budget), or cases of express authorization to issue an ad hoc statute

(e.g. constitutional acts issued under Art. 11 and Art. 100 par. 3 of

the Constitution) or ad hoc statutes whose issuance is supported by

exceptional reasons that meet the condition of the proportionality test

(e.g. restitution acts containing lists).

 

In

the absence of a constitutional authorization to issue constitutional

acts ad hoc, the constitutional conformity of a constitutional act

adopted inconsistently with the constitutionally defined scope of the

competence of Parliament could be established only by protection of the

material core under Art. 9 par. 2 of the Constitution. In other words,

protection of the democratic state governed by the rule of law by

adopting an ad hoc constitutional act could be accepted in absolutely

exceptional circumstances (such as a state of war or natural catastrophe

that are not addressed by either the Constitution or by constitutional

Act no. 110/1998 Coll., on the Security of the Czech Republic, as

amended by constitutional Act no. 300/2000 Coll.), but that procedure

would have to meet the requirements that follow from the principle of

proportionality.

 

As

the Constitutional Court has ruled in its settled case law (see

judgments file no. Pl. ÚS 4/94, Pl. ÚS 15/96, Pl. ÚS 16/98, Pl. ÚS 41/02

and others), the principle of proportionality is based, among other

things, on analysis of the possible normative means in relation to the

intended aim, and their subsidiarity in terms of limiting

constitutionally protected values – a fundamental right or public good.

If the aim pursued by the legislature (in this case the constitutional

framers) can be achieved by different normative means, then the

constitutionally conforming one is the one that limits the given

constitutionally protected value to the smallest extent.

 

If

the aim of passing constitutional Act no. 195/2009 Coll. was to quickly

resolve the governmental (parliamentary) crisis, and accordingly,

quickly dissolve the Chamber of Deputies and call early elections, in

the Constitutional Court’s opinion this aim could also have been

achieved by a constitutional process under Art. 35 par. 1 of the

Constitution [specifically, a process according to letter b) of that

Article]. Thus, the consequence of adopting the contested statutory

provision was not to resolve the government crisis quickly, but to shift

the date until which the Chamber of Deputies would remain in office

until the date of the elections – if the Chamber of Deputies were

dissolved, under Art. 17 par. 2 of the Constitution elections would be

held within sixty days after it was dissolved. This breach of the

constitutional framework contained in Art. 35 of the Constitution also

circumvents the constitutional purpose of the institution of dissolving

the Chamber of Deputies, which is constitutional pressure to have a vote

of no confidence in the government (or a refusal to give a vote of

confidence) joined to awareness of the constitutional consequences, in

the event that there is no new parliamentary majority capable of forming

a government. Beyond that, it remains only to emphasize that the most

important public interest arising from Art. 9 par. 2 of the Constitution

is the formation of a legitimate Parliament, based on elections whose

legal basis is not open to constitutional challenge.

 

For

the reasons thus set forth, the Constitutional Court did not find

arguments in favor of not observing the framework of authorization for

adopting constitutional acts, as it is defined in Art. 9 par. 1 of the

Constitution.

 

The

Constitutional Court has repeatedly emphasized that it considers the

principle of generality of a constitutional act to be part of the

essential requirements for a law-based state. It points out that

generality is not an aim in itself; its aim is to ensure separation of

the legislative, executive and judicial branches, an equal

constitutional framework for analogous situations, and thereby to rule

out arbitrariness in the application of state authority, and enable a

guarantee of the protection of individual rights in the form of a right

to judicial protection. Therefore, the essence and significance of the

generality of a constitutional act, as a conceptual element of the

category of a state governed by the rule of law, is protection of

freedom.

 

An

argument made in favor of constitutional conformity of constitutional

of Act no. 195/2009 Coll. is that it did not affect Art. 21 par. 2 of

the Charter, so the term of office of the Chamber of Deputies was not

lengthened, but shortened, so there was no limitation of the voting

rights of citizens or interference in the legitimacy of Parliament. A

relevant statement supporting this argument was raised in the

parliamentary debate on the draft constitutional Act on Shortening the

Term of office of the Chamber of Deputies in 1998: “the danger of the

proposed act lies primarily in the fact that it creates a precedent of

the highest legal force, a precedent that says that it is possible, for

momentary, utilitarian, political reasons, to change the fundamental law

of the land. If that is possible once, it is possible always.

Parliament could, for the same reasons, suspend the powers of the

Constitutional Court if its decisions were not in line with the

political will of the moment; it could, for the same reasons, suspend

the powers of the president if they were inconsistent with the political

will of the moment, it could, for the same reasons, suspend the Charter

of Fundamental Rights and Freedoms if it were an obstacle to achieving

political aims. Putting fundamental legal certainties in doubt for

political reasons puts democracy in doubt, and it creates the potential

danger that authoritarianism and totalitarianism will arise. And it is

to no avail that the authors of this precedent did not and do not, as I

believe, have anything of the sort in mind, and through their draft act

only want to arrange for early elections to be held. Political logic

does not take account of intent, and those who will next time go down

the path that this precedent opens may have different and much darker

intent. It is precisely for this reason that the Constitution of the CR

expressly states in Art. 9 par. 2, that amendment of the essential

requirements for a democratic state governed by the rule of law is

impermissible.” Similarly as in 1998, so in the process of adopting the

constitutional Act on Shortening the Term of Office of the Chamber of

Deputies elected in 2006 the relevant counter arguments were heard

against this argument in favor of it, especially in the widely quoted

opinion of the Senate Permanent Commission for the Constitution of the

Czech Republic and Parliamentary Procedure.

 

In

addition to the principle that it is impermissible to hold elections in

time periods that exceed the term of office, Art. 21 par. 2 of the

Charter also enshrines the principle of regular terms of office (regular

exercise of voting rights). The ad hoc constitutional act on shortening

the term of office is inconsistent with the constitutional imperative

of regular election periods, only for on e instance, not generally for

the future; it sets an exception to Art. 16 par. 1 of the Constitution.

 

The

Constitutional Court concludes: even the constitutional framers cannot

declare constitutional an act that lacks the character of a statute, let

alone of a constitutional act. Such a procedure is unconstitutional

arbitrariness. Ruling out review of such acts by the Constitutional

Court would completely eliminate its role as the protector of

constitutionality (Art. 83 of the Constitution).

 

VI./b

The Ban on Retroactivity of a Constitutional Act as and Essential Requirement for a State Governed by the Rule of Law

 

The

Constitutional Court has already, in judgment file no. Pl. ÚS 21/96,

set the basic viewpoints for evaluating the constitutionality of a

retroactive legal framework (that legal opinion was then confirmed in a

series of other decisions, see file no. Pl. ÚS 35/08, Pl. ÚS-st. 27/09

and others). It stated that “the basic principles defining a law-based

state include the principle of protecting the confidence of citizens in

the law, and the related principle of the prohibition on retroactivity

of legal norms. … Thus, with true retroactivity, a lex posterior annuls

(does not recognize) legal effects at a time when a lex prior was in

effect, or calls forth or connects the rights and obligations of

subjects with facts that were not legal facts when the lex prior was in

effect.”

 

There

is a fundamental difference in the framework shortening the term of

office of the Czech National council by constitutional Act no. 64/1990

Coll., on the one hand, and shortening the term of office of the Chamber

of Deputies of the Parliament of the Czech Republic by constitutional

Acts no. 69/1998 Coll. and no. 195/2009 Coll., on the other hand. The

first of the three cited constitutional acts was adopted before

elections were held and a representative assembly constituted, and the

two others were adopted afterwards. Thus, they retroactively set the

conditions for exercising voting rights (active and passive), The

presumptions on the basis of which the voters decided in the elections

to the Chamber of Deputies were changed with retroactive effect.

 

A

democratic constitution, which is a fictional social contract, in its

most general form provides the framework of human freedom compatible

with the freedom of others, a set of constitutive values, and finally,

the structure of the basic institutions of public power and authority,

through which they become legitimate. The purpose of these institutions

is to guarantee the constitutional framework of freedom, guarantee

domestic peace, as well as other constitutionally foreseen public

benefits. Thus, the constitution is a fundamental document that provides

binding and uncrossable rules, limits and bounds for the creation of

the supreme constitutional bodies of state power, from a substantive and

procedural point of view, as well as the ordinary and extraordinary

termination of their mandates.

 

In

this case, the Constitutional Court states that the early termination

of the term of office of the Chamber of Deputies of the Parliament of

the Czech Republic is an institution foreseen and approved by the

Constitution (see the framework for dissolving the Chamber of Deputies

and calling early elections enshrined in Art. 35 of the Constitution).

However, the Constitution cumulatively provides both substantive

conditions, as well as appropriate procedure, for exercising it, without

a possibility of deviating from them. In this case, the contested

constitutional act completely ignores both. It temporarily ad hoc

suspends Article 35, and, outside the constitutionally prescribed

procedure, sets, for this individual instance, a completely different

procedure from the one that the Constitution foresees and requires, and

does so although that procedure is not admissible on the grounds of

exceptional purposes such as those in which, in the foregoing analysis

on the question of public interest, the Constitutional Court included,

for example, a state of war or natural catastrophe.

 

The

Constitutional Court considers such circumvention of fundamental

constitutional principles to be incompatible with the principle of the

prohibition on retroactivity, in connection with the principles of

protecting justified confidence by the citizens in the law and the right

to vote freely, i.e. – among other things – the right to vote with

knowledge of the conditions for creating the democratic public

authorities resulting from the elections, including knowledge of their

term of office. The Constitutional Court considers violation of these

constitutional principles arising from Art. 1 par. 1 of the Constitution

to be interference with the essential requirements for a democratic

state governed by the rule of law, enshrined in Art. 9 par. 2 of the

Constitution.

 

 

VI./c

The Essential Grounds for Derogation of Constitutional Act no. 195/2009 Coll.

 

These

starting points, thus set forth, are the basis for reaching an answer

to the questions formulated above, concerning the defining elements of

constitutional acts, of whether they must meet, in addition to the

procedural conditions in Art. 39 par. 4 of the Constitution, also the

condition of competence (authorization) in Art. 9 par. 1 of the

Constitution or another express constitutional authorization (Art. 2

par. 2, Art. 10a par. 2, Art. 11, Art. 100 par. 3), and the substantive

condition set forth in Art. 9 par. 2 of the Constitution. The

Constitutional Court’s position is that the validity of a constitutional

act comes from meeting all three of these conditions: the procedural

condition, the competence (authorization) condition, and the substantive

condition (consistency with the non-changeable principles of a

democratic state governed by the rule of law). In the adjudicated

matter, it then concluded that constitutional Act no. 195/2009 Coll., as

regards constitutionality, is unacceptably individual and retroactive,

and that it violates Art. 9 par. 1, Art. 21 par. 2 of the Charter in

connection with Art. 16 par. 1 of the Constitution and Art. 1 par. 1 of

the Constitution, with an intensity that results in interference in Art.

9 par. 2 of the Constitution.

 

Based

on these reasons, the Constitutional Court concluded that

constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of

Office of the Chamber of Deputies, is inconsistent with the essential

requirements for a democratic state governed by the rule of law under

Art. 9 par. 2 of the Constitution, wherefore it annulled it as of 10

September 2009, i.e. the date this judgment is promulgated.

 

 

VII.

Derogation under § 70 par. 3 of Act no. 182/1993 Coll.

 

Under

§ 70 par. 3 of Act no. 182/1993 Coll., if implementing regulations were

issued to a statute that the Constitutional Court annuls, the

Constitutional Court shall simultaneously state in its judgment which

implementing regulations cease to be valid together with the statute.

 

In

its resolution of 1 September 2009 ref. no. Pl. ÚS 24/09-16 on

Deferring the Enforceability of Decision of the President of the

Republic no. 207/2009 Coll., on Calling Elections to the Chamber of

Deputies, the Constitutional Court stated that this decision is of a

mixed nature: it contains elements of a normative legal act, and at the

same it must be considered an act of application of the cited

constitutional act. Therefore, the Constitutional Court concluded that

the elements of a normative legal act (an implementing one) that are

contained in this Decision of the President of the Republic are grounds

for the procedure under the cited § 70 par. 3 of Act no. 182/1993 Coll.

 

 

VIII.

Obiter Dictum

 

By

annulling constitutional Act no. 195/2009 Coll., on Shortening the

Fifth Term of Office of the Chamber of Deputies, the Constitutional

Court did not in any way limit the rights of citizens to exercise their

voting rights, because the only consequence of this step (if Parliament

does not adopt another, constitutionally conforming solution) is that

the present, democratically constituted Chamber of Deputies of the

Parliament of the Czech Republic will continue to perform its office to

the end of its regular term of office.

 

 

Instruction: Decisions of the Constitutional Court cannot be appealed.

 

Brno, 10 September 2009

 

Pavel Rychetský

Chairman of the Constitutional Court

 

 

 

 

Dissenting opinion of judge Vladimír Kůrka

I.

1.

By way of introduction, I will state that, in my opinion, the review of

the constitutionality of Constitutional Act no. 195/2009 Coll. should

never have been opened, because, as I tried to explain in my dissenting

opinion to the decision of the plenum of the Constitutional Court of 1

September 2009, file no. Pl. ÚS 24/09, the constitutional complaint from

representative M. M. should have been rejected as non-reviewable,

whereby the proceeding concerning the petition related to would have

lost its foundation under § 74 of the Act on the Constitutional Court.

However, that is now passé.

II.
2. For purposes of the related

review, it is proper to begin with what is a constitutional act; that

is (most generally) an act so designated, adopted in a special

(classified) procedure, and the subject matter it regulates is

“constitutional” material; these conditions have been met.

3.

The Constitutional Court is bound by constitutional acts, and therefore

they are fundamentally not subject to its review under § 87 par. 1 let.

a) of the Constitution; however, one can agree (and it is obviously

appropriate) that this does not apply in the case of those

“constitutional” acts that affected (violated) the so-called material

focus of the Constitution, as intended by Art. 9 par. 2 of the

Constitution. Of course, that possibility is an obvious exception to the

principle.

4. Thus, the question before the Constitutional

Court was whether in this case (of Constitutional Act no. 195/2009

Coll.) there were exceptional grounds – in terms of Art. 9 par. 2 of the

Constitution – for it to to intervene.

5. In my opinion, which I will try to justify presently, such (sufficiently strong, or persuasive) grounds do not exist here.

III.
6.

Above all, however, I do not share the other method to which the

majority of the plenum turned. In simple terms, after it concluded that

there was insufficient “authorization” in Art. 9 par. 1 of the

Constitution for issuing this constitutional act (and thus “sentenced”

the act to its review), it evaluated whether it might not stand after

all on the basis of Art. 9 par. 2 of the Constitution; that could give

it exceptional justification but in this matter that is not the

situation. Thus, the order of significance of Art. 9 par. 1 and Art. 9

par. 2 of the Constitution is reversed.

7. The majority of the

plenum, to support the inconsistency of the evaluated constitutional act

with Art. 9 par. 1 of the Constitution, puts forth the opinion that it

does not represent either an “amendment” or “supplement” to the

Constitution anticipated by that article, because it is a particular –

and impermissible – breach of the Constitution, which it elucidates by

quoting from the work cited in footnote 12, as well as in paragraphs 1

to 5 on page 15 of the reasoning of the judgment.

8. However,

upon a closer look, it becomes justifiable that this may be a

“supplement’ to the Constitution after all; even a statute “for one-time

use” is a permanent component of the legal order, and here the fact

that after it is applied (and therefore “exhausted”) it is de facto no

longer used (no social relationships, or legal relationships, can arise

under it or be governed by it), is meaningless. Such a statute

supplements the Constitution by even taking precedence over it in a

particular situation; in a certain sense it is in the position of a

special law (attributes such as “suspension,” postponement of the

Constitution, etc., are only forms of expression. If the regime for

ending a term of office was formulated in Act no. 195/2009 Coll. as the

basis of a general rule, it would obviously be recognized, that both

this regime and the regimes under Art. 35 par. 1 of the Constitution can

exist side by side; thus, this would be a supplement to the

Constitution under Art. 9 par. 1, among other things because it would be

difficult to conclude, that they would be mutually “inconsistent” (see

paragraph 3 on page 15 of the reasoning).

9. It follows from

this – if the inadequate “supplement” of the Constitution (in the sense

of lack of “authorization” under Art. 9 par. 1 of the Constitution) is

not unquestionable – that it also cannot be a reliable basis for the

chosen method, which, on the basis of Art. 9 par. 1 of the Constitution

is aimed at establishing the competence of the Constitutional Court to

the review of a constitutional act (and thereby, de facto, to

derogation, avoidable only exceptionally, if it were to be protection of

the material focus of the Constitution under Art. 9 par. 2).

10.

What appears all the riskier is that the inadequate “supplement” of the

Constitution (on the contrary, “breach”) is identified exclusively with

the criticism that it “regulates a unique case” or that it is an “ad

hoc” statute, in other words, that the regulation enshrined is

insufficiently general, as in fact it is supposed to be only a bill of

attainder.

11. There is no doubt that statutes that lack the

attributes of a general legal regulation are “defective” statutes,

which, as a rule, are in conflict with the principles of a law-based

state, although exceptions are generally known, and the majority opinion

itself mentions some (the Act on the State Budget, certain enumerated

restitution statutes, statutes passed under extraordinary circumstances,

natural catastrophes, or a state of war); certainly not all of them can

be described, as the majority would like, as aiming at protecting the

material core of the Constitution. In any case, there is also a visible

difference between “issuing criminal judgments” or “issuing

administrative decisions on expropriation,” which the majority opinion

mentions (page 15, paragraph 5), and the contested constitutional act,

as well as between it (shortening a term of office) and “shortening the

period of holding office” of another state body (ibid.).

12. Of

course, the basis for methods chosen by the majority of the plenum not

only becomes more relativized, because what comes into play is

individual evaluation of a particular statue, or its purpose and context

when it was issued, but – and also therefore – it loses persuasive

strength and force of arguments in favor of the exclusively

determinative conclusion here, i.e. that the Constitutional Court,

without anything further, has the competence to intervene even if the

contested statute is a constitutional act.

IV.
13. For these

reasons, in my opinion, priority should have been given to the method

stated in simplified form under points 1. to 3. above; the fact that

there are no adequate grounds for the Constitutional Court to intervene

against the constitutional act follows from the nature of the firmly

maintained condition that a constitutional act affect the material focus

of the Constitution, protected by Art. 9 par. 2.

14. The

material focus of the Constitution in Art. 9 par. 2 is defined with the

help of “relatively uncertain” concepts that cannot – in terms of

content – be identified (completely) abstractly, through exhaustive

rules; a typical method is a demonstrative (incomplete) listing of

determinative elements, or perhaps comparison of situations that

specifically involve this “focus.” The individual conclusion, whether

there was (or was not) interference, logically cannot be based on an

undisputed contraposition  of “yes, yes” versus “no, no,” but at the

level of “likely yes” or “likely no.” It was also stated above that the

competence of the Constitutional Court here is exceptional, and like

every exception, must, by the logic of the matter, be reviewed

restrictively; doubts concerning in – in the particular case – require

restraint.

15. The foregoing (particularly points 10 and 11)

posit that the inadequate generality of a statue need not, in and of

itself, be interference in Art. 9 par. 2 of the Constitution, or that a

positive finding thereof must be tied to the results of individual

review. This must apply all the more so to constitutional acts, because

the Constitutional Court’s approach to them is exceptionally limited.

16.

However, in this review, if it involves a constitutional act, the

principle of proportionality, which the majority of the plenum also

considers, necessarily appears in a different form than with

constitutional review of “ordinary” statutes; the modification is caused

by that “firmly maintained condition” (point 13), which arises both

from the exceptionality of the review, and from it being narrowed solely

to the level of Art. 9 par. 2 of the Constitution.

17. The

basis of “individual” review consists of evaluating whether the reviewed

“non-general” constitutional act specifically, to a considerable

degree, interfered in the position of those constitutional subjects,

which (together with their relationship) are fundamental for the current

constitutional system, and thus, as the majority of the plenum

concludes, is interference in the essential requirements of a law-based

state, the separation of powers and “equality and the right to one’s

own, independent judge.”

18. However, here – in my opinion –such interference (and the correspondingly necessary intensity) – does not exist.

19.

The opposite can be illustrated by example. It would be different in a

situation where a similar “constitutional” statute shortened the term of

office (appointment) of another constitutional body, for example (as

the petitioner states), the president, or Constitutional court judges,

etc.; here, however, the actions of Parliament were directed only at

itself (the Chamber of Deputies), and only to limit itself (shortening,

not lengthening its term of office). It would be appropriate to review

shortening of a term of office differently only if the Constitution

enshrined a rule that the term of office of the Chamber of Deputies

cannot be shortened under any circumstances, and laid justified emphasis

on preserving that rule. It is worth pointing out that Art. 21 par. 2

of the Charter of Fundamental Rights and Freedoms provides that

elections must be held (only) within periods of time not exceeding the

regular terms of office provided for by law, and the principle of

regular elections derived therefrom by the majority of the plenum is

already limited anyway (Art. 35 par. 1 of the Constitution).

20.

The Constitution anticipates a shortened term of office (Art. 35 par.

1), so one can dispute only the process leading to it, which the

reviewed constitutional act represents, or which it newly established

(added).

21. The only question then is whether this process to

end the term of office of the Chamber of Deputies, as yet unanticipated

by the Constitution, could have affected its – determinative– material

focus (point 16).

22. Here we can not only not overlook the fact

that the internal process in Parliament when the contested act was

adopted as a constitutional act, is formally correct, and observes the

requirement of voting by a supermajority of deputies; it is especially

important that the political (parliamentary) relationships were

obviously such that this same will of parliament, thus expressed, could

also be used, with the same result, in the indisputably “constitutional”

process enshrined in Art. 35 par. 1 let. a) of the Constitution. The

general advantage emphasized by the majority opinion, the fact that this

process strengthens the responsibility of the “new parliamentary

majority” in the formation of the government, does not, in my opinion,

have a constitutional dimension.

23. It is certainly acceptable

that the foreseeability of the process of “forming constitutional

bodies” is a constitutional value, as the majority of the plenum states;

however, for the reason just stated, putting forth this principle as a

measure to indicate that the level of the material focus of the

Constitution was reached in this case has limits that cannot be

overlooked, if it is not obvious that the situation resulting from the

contested constitutional act (the early termination of the term of

office of the Chamber of Deputies), would be different from the results

of a “constitutional” process.

24. Comparison with the procedure

under Art. 35 par. 1 let. a) of the Constitution, on which the majority

opinion relies, is not without importance, including because achieving

the aim it pursues could not be – given the existing distribution of

political parties in the Chamber of deputies, and the political

interests they formulated – anything other than an expression of a

process which is externally consistent with the Constitution, but on the

other hand, at the price of applying (repeatedly) a non-serious, but

only pretended, constitutionally relevant will (the will of the

government regarding the call for a confidence vote and of the Chamber

of Deputies regarding voting on it), which obviously also does not

correspond to constitutional principles. The existence of a “true” will

for a constitutional law process is undoubtedly also a constitutional

value, and that was necessarily suppressed.

25. The rights of

the minority (outvoted) deputies cannot be affected by the reviewed

process, or its expression in a constitutional act (in terms of Art. 9

par. 2 of the Constitution), not only because of the quality of the

applied (statutory) method, but also because there is no

constitutionally guaranteed right for them to exercise their mandate for

a full term of office (Art. 35 par. 1 of the Constitution); in any

case, the petitioner, M. M., stated in the constitutional complaint that

he was concerned exclusively with “the principle,” and he would accept

the end of his mandate under  Art. 35 par. 1 let. a) of the Constitution

(for details, see my dissenting opinion to Constitutional Court

resolution of 1 September 2009, file no. Pl. ÚS 24/09).

26. It

is appropriate to apply this by analogy to what the majority argues is

the violation of “the citizen’s justified confidence in the law and the

right to vote freely,” including the “knowledge … of the term of

office”; for the same reasons, a voter must “be prepared” that he may

vote “earlier.”

27. In my opinion, the constitutional content of

free political competition (Art. 5 of the Constitution), which is also

claimed to be endangered, was also not affected, because the voting of

the competing parties represented in Parliament (in favor of the

contested Act) was the final outcome of this “competition,” not a denial

or limitation of it. The political parties (just like the deputies)

could not assume that the term of office would necessarily be four

years, i.e. that it would not end earlier, and, of course, that also

applies to political parties not represented in parliament. The

procedure of the constitutional act, even if it is “defective” minimizes

the possibility that this led to an extreme deviation from tolerable

limits. Nor is there a factual basis to conclude that this procedure was

guided by arbitrariness, in the sense of intentionally excluding a

minority from political competition.

28. Also, the impermissible

arbitrariness of the political majority does not appear relevant,

because the existence has not been refuted of a comprehensible and

substantive purpose for the constitutional act it adopted, based on the

claim that the act can objectively serve to effectively avert the

existing social-political crisis and the danger of an economic crisis.

29.

In these circumstances even the objection of “changing the rules during

the contest” cannot shift the review of the contested act toward the

material focus of the Constitution.

30. This is also related to

the review – logically with the same result – of the defect in the

constitutional act which the majority of the plenum identifies as

violation of the prohibition on retroactivity. In accordance with the

(here, exclusively relevant) review of the constitutional act in terms

of Art. 9 par. 2 of the Constitution, and the corresponding evaluation

of other defects, namely the lack of generality (see points 15 to 17

above), this objection too must unavoidably be weighed not in its

abstract form (existence), but specifically, in relation to the

individual statute, and we must verify the extent of its actual effect

on rights that were acquired earlier (in public law we can also imagine a

“retroactive” regulation that interferes in the past by providing a

higher standard of protection to entitled subjects).

31.

However, the majority of the plenum is arguing only broadly, by

reference to general principles, and then only by reference to the

abovementioned (addressed in point 26) “justified confidence in the law

and the right to vote freely … with knowledge of conditions …” which

cannot be sufficient to document actual interference in Art. 9 par. 2 of

the Constitution; here the simultaneously presented ideas on ignoring

Art. 35 of the Constitution are – in my opinion – skewed.

V.

32.

I grant that differentiating the two “methods” in parts III. and IV.

may not appear sufficiently clear, because it was subsequently – during

deliberations on the matter by the plenum of the Constitutional Court –

somewhat erased; nevertheless, I find that both were preserved in the

end (for part III. see the second paragraph on page 16 and the fifth

paragraph on page 16 of the reasoning of the judgment; part IV. is tied

to deliberations on the consequences of the statute being insufficiently

general, as well as its retroactivity). As already stated, these

methods differ in their “order” and the function of Art. 9 par. 2 (in

relation to Art. 9 par. 1); in the first case Art. 9 par. 1 is dominant

(see point 6), in the other Art. 9 par. 2 (as sufficient) (see also the

last paragraph on page 18 of the reasoning). The “essential grounds” set

forth clearly attempt to “reconcile” both methods with the conclusion

that Art. 9 par. 1 was violated (after all), but at the same time “at an

intensity establishing interference in Art. 9 par. 2 of the

Constitution.” However, this can be problematic, if the alleged

insufficient authorization to issue a constitutional act, if it is

neither an amendment nor supplement to the Constitution (Art. 9 par. 1),

is – according to the majority’s analysis – apparently in and of itself

a justification of the Constitutional Court’s competence to derogate

from it. The question logically arises what place in establishing that

competence is held by this further element, which rests in the

“intensity” of interference under Art. 9 par. 2, regardless of the fact

that Art. 9 par. 2 is also understood differently in the reasoning, as

not a necessary complement to Art. 9 par. 1, but, in contrast, in the

role of an actor, capable of ruling out its otherwise arising effects.

VI.
33.

Therefore, I summarize, noting the starting points of “review” stated

in points 13 and 14, that in this matter, this constitutional act did

not relevantly interfere in Art. 9 par. 2 of the Constitution, and thus

there are no reliable grounds for the Constitutional Court to intervene

and derogate. Therefore, the petition from Deputy M. M. should have been

denied.

34. Of course, I do not claim, on the other hand, that

the reviewed constitutional act is otherwise not contestable,

defect-free, or constitutionally correct, but in my opinion that is not

the issue.



Dissenting Opinion of Judge Vladimír Kůrka

Dissenting

opinion of Constitutional Court judge Jan Musil to the judgment of the

plenum of the Constitutional Court of 10 September 2009, file no. Pl. ÚS

27/09

I disagree with the verdicts and the reasoning of the

judgment by the plenum of the Constitutional Court of 10 September 2009,

file no. Pl. ÚS 27/09, which annulled Constitutional Act no. 195/2009

Coll., on Shortening the Term of Office of the Chamber of Deputies, and

which annulled the Decision of the President of the Republic no.

207/2009 Coll., on Calling Elections to the Chamber of Deputies of the

Parliament of the Czech Republic.

Pursuant to § 14 of Act no.

182/1993 Coll., on the Constitutional Court, as amended by later

regulations, I am submitting a dissenting opinion, with the following

reasoning:

I. The proceeding on annulling a statute under Article 87 par. 1 let. a) of the Constitution should never have been opened

1.

As I already indicated in my dissenting opinion to the decision by the

plenum of the Constitutional Court of 1 September 2009, file no. Pl. ÚS

24/09, postponing the effectiveness of the Decision of the President of

the Republic, no. 207/2009 Coll., on Calling Elections to the Chamber of

Deputies of the Parliament of the Czech Republic, now, too, I state

that Deputy M. M. is not a person who had standing, to submit, together

with a constitutional complaint against the Decision of the President of

the Republic on Calling Elections to the Chamber of Deputies of the

Parliament of the Czech Republic, a petition to annul a statute, N.B., a

constitutional act.

2. A petition to annul a statute under § 74

of the Act on the Constitutional Court can be joined only with a

constitutional complaint that the complainant has standing to file. The

institution of a constitutional complaint serves to protect the

complainant’s own subjective fundamental rights or freedoms, guaranteed

by the constitutional order [see Art. 87 par. 1 let. d) of the

Constitution of the CR, and § 72 par.1 let. a) of the Act on the

Constitutional Court]. The complainant, as a parliamentary deputy, has

no constitutional right to carry out his parliamentary mandate for a

full term of office under all circumstances; on the contrary, the

Constitution itself assumes that a parliamentary mandate may terminate

earlier for a number of reasons, one of which is the dissolution of the

Chamber of Deputies (Article 25 of the Constitution).

3. M. M.’s

constitutional complaint contested the Decision of the President of the

Republic that set a definite date for elections. There is no way to

conclude how and why the complainant’s subjective rights should be

affected by the fact that the elections are to be held on the specified

dates, 9 and 10 October 2009. It is quite obvious from the content of

the constitutional complaint that its purpose is not really to cast

doubt on the election dates, but to cast doubt on the adoption of

Constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of

Office of the Chamber of Deputies.

4. In my opinion, the

procedure chosen by the complainant, i.e. contesting the constitutional

act by joining this petition to the filed constitutional complaint, de

facto circumvents Article 87 par. 1 let. a) of the Constitution and § 64

par. 1 of the Act on the Constitutional Court, which specifies, in a

definitive list, the circle of persons authorized to submit a petition

to annul a statute.

5. The Constitutional Court’s settled case

law is consistently based on the accessory nature of a petition to annul

a statute, a petition that “shares the fate” of a constitutional

complaint. IN my opinion the submitted constitutional complaint is

impermissible, and therefore it should have been denied under § 43 of

the Act on the Constitutional Court. The joined petition to annul a

statute should have been denied together with it.

6. If the

Constitutional Court accepted a constitutional complaint that should

have been denied as acceptable grounds for opening a proceeding to annul

a statute [under Article 87 par. 1 let. a) of the Constitution], it did

not, in my opinion, respect Article 2 par. 3 of the Constitution, under

which “state authority … may be asserted only in cases, within the

bounds, and in the manner provided for by law” (the Charter of

Fundamental Rights and Freedoms says the same thing in different words

in Article 2 par. 2).

II. The competence of the Constitutional

Court to review constitutional acts is disputed, and declaration of this

competence is not persuasively justified in the judgment

7.

There have been many years of controversial discussion, both in the

Czech Republic and abroad, about whether constitutional courts are

competent to review constitutional acts. The dispute takes place in the

case law of constitutional courts and in legal scholarship; the same is

happening in political science and the political sphere. It appears that

this discussion has not yet been concluded; in fact, one cannot even

say that any trend toward ending the dispute has definitively

crystallized.

8. The Constitutional Court’s judgment assumes

this competence a priori, at least in cases where a constitutional act

is contested on the grounds provided in Article 9 par. 2 of the

Constitution, i.e. due to violation of a prohibition on changing the

essential requirements of a democratic state governed by the rule of

law, or due to violation of Article 9 par. 1 of the Constitution. In a

situation where this competence of the Constitutional Court is not

expressly enshrined directly in the Constitution, it can be derived only

through interpretation, based partly on meta-juristic arguments

(historic, axiological, moral, etc. arguments are also used). Here,

given the nature of the matter, the Constitutional Court is “on thin

ice,” and so its interpretation and arguments must be exceptionally

persuasive.

9. I do not find this thoroughness and general

persuasiveness in the reasoning of the judgment. I make this statement,

even though I myself incline toward a fundamental recognition of the

Constitutional Court’s authority to subject constitutional acts to

review, within the bounds of the criteria provided in Article 9 par. 2

of the Constitution. There is not enough space in a dissenting opinion

to expound in detail on the reasons that lead me to this. However, I

expected (in vain) that they would be set out in detail in the reasoning

of the judgment, which is of a “pioneering” nature in this aspect,

because this is the first time in the practice of the Czech

Constitutional Court that this problem is being decided.

10.

Insofar as part IV. of the reasoning argues that the Constitutional

Court already, in its past case law “outlined the meaning of the term

‘essential requirements for a democratic state governed by the rule of

law,’” that always happened only in connection with a review of

“ordinary” statutes, not constitutional acts.

11. One can

recognize the argument that, if the requirement of observing the

essential requirements of a democratic, law-based state is not to remain

“only a political, or moral challenge,” there should be a guarantor or

arbiter who will watch over the observance of this rule, and who will

also be equipped with procedural rules for review, or even cassation or

other reparatory mechanisms to correct defects. There is no agreement as

to who is to be that guarantor and arbiter, either in constitutional

law scholarship or in the political sphere, in this country or abroad.

There are opinions that, for example, a second chamber of parliament

could be this review entity, or that a referendum could be a suitable

mechanism; there are also skeptical opinions that such a “super-review”

and yet functional mechanism cannot be created at all, because the

pyramid of review mechanisms cannot be built endlessly (the problem

arises “who inspects the inspectors”).

12. As far as I know, the

Constitutional Court has never yet considered arguments that would

persuasively prove that it is the Constitutional Court that should or

must be that guarantor and arbiter who watches over the constitutional

framers to ensure that the substantive requirements of a democratic,

law-based state are observed. The present judgment declares a prior that

the Constitutional Court has this competence, without worrying too much

about persuasive arguments.

13. With a matter so serious,

because it affects a fundamental constitutional principle, the

separation of powers, one can require that this new power of the

Constitutional Court, derived only by interpretation, be applied in

practice with exceptional restraint and restrictiveness. In any case,

the Constitutional Court itself, in a number of its decisions,

repeatedly refers to the rule of restraint in other contexts. Likewise,

those foreign constitutional courts that attempt to promote their

competence to review constitutional statutes proceed with great

restraint. For example, the German Constitutional Court, which in its

case law generally proclaims its competence to also review

constitutional statutes in terms of whether they do not violate the

material core of the Constitution, has not annulled a single

constitutional statute in the entire period of its existence (since

1949). Moreover, Article 79 par. 3 of the German Grundgesetz defines

this material core of the Constitution much more precisely than the

Czech constitutional framers did in Article 9 par. 2 of the

Constitution, so review of whether it is applied properly is easier in

the practice of the German Constitutional Court than it is in this

country. In Austria, as far as I know, the Constitutional Court annulled

a constitutional statute in only one case (VfGH 16.327, 11 November

2001), when it concluded that the contested constitutional statute

violated the material core of the Constitution in an absolutely flagrant

manner.

III. Constitutional Act no. 195/2009 Coll., on

Shortening the Fifth Term of Office of the Chamber of Deputies does not

violate the fundamental principles of the right to vote

14. Part

IV. of the judgment’s reasoning contains the statement that, “the

Constitutional Court also included in the material focus of the legal

order – consistently with the doctrinaire opinion – the fundamental

principles of election law (judgment file no. Pl. ÚS 42/2000).” Given

that this statement is being reproduced right now, in connection with

review of Constitutional Act no. 195/2009 Coll., it could lead some

readers of the judgment to the interpretation that the subject of the

presently reviewed constitutional statute are the fundamental principles

of voting rights. Therefore, I consider it appropriate to add a

“preventive” note that I would consider such an interpretation

incorrect.

15. The fundamental principles of voting rights must

undoubtedly be considered to include the principles set forth in Article

21 of the Charter (in particular universality, equality, and the secret

ballot). In contrast, the rule that a term of office cannot be

shortened, is not among the fundamental principles of voting rights.

16.

Constitutional Act no. 195/2009 Coll. is also not inconsistent with the

requirement stated in Article 21 par. 2 of the Charter (“Elections must

be held within terms not exceeding the regular electoral terms provided

for by law.”). This rule undoubtedly prohibits only extending an

electoral term, not the possibility of shortening it.

17. For

completeness, one can state that the cited judgment, file no. Pl. ÚS

42/2000, concerned review of the proportional representation model of

elections, i.e. a matter of a completely different nature than

shortening the term of office of the Chamber of Deputies; no analogies

can be drawn with the present case.

IV. Passing Constitutional

Act no. 195/2009 Coll., which does not meet the requirement that a

statute be general, is not a violation of the essential requirements of a

democratic, law-based state

18. Part VI./a of the judgment’s

reasoning contains the statement: “The Constitutional Court has

repeatedly emphasized that it considers the principle of generality of a

constitutional act to be part of the essential requirements for a

law-based state.”

19. This claim does not correspond to reality,

for the simple reason that the Constitutional Court has never yet

reviewed the constitutionality of a constitutional act. It has addressed

the problem of generality only with “ordinary” statutes.

20.

However, even in those cases where the Constitutional Court criticized

the legislature for adopting an “ordinary” statute not containing a

general rule, It did not find a violation of the essential requirements

of a democratic, law-based state, due to which it annulled the statute

as unconstitutional, merely in the lack of generality. It always

emphasized that this form of a “non-general” statute is unconstitutional

in the case of the particular statute because it also endangers or

violates another fundamental constitutional right. For example, in

judgment file no. Pl. ÚS 24/04, it emphasize that the statutory

provision declaring a certain unique structure (the weirs on the Elbe

River) to be a matter of public interest, also interferes in the

executive branch (makes it impossible to evaluate the matter in a

construction proceeding following procedural principles) and limits the

parties’ right to judicial review.

21. I believe that the form of

a “non-general” statute is legislatively technically unsuitable and

undesirable, although it is value-neutral in and of itself. It becomes a

violation of constitutionality only if that form really is capable of

causing danger to, or violation of, fundamental rights in the given

normative subject matter. The requirement that a legal norm be general

is not, in and of itself, part of the essential requirements of a

democratic, law-based state.

22. This is also supported by the

fact that in both Czech and foreign legislation there are dozens of

cases where “ordinary” or even constitutional norms do not meet the

generality requirement and concern a unique matter. As one foreign

example of this we can cite Articles 143b or 143c of the German

Constitution (Grundgesetz). We can also find several cases of unique

statutes, sometimes containing curious formulations like “Mr. X. Y.

served the state” in currently valid Czech law.

23. Deliberating

that such cases involve bills of attainder rather than statutes is an

attractive topic in specialized legal literature, but as a relevant

legal argument for the proposition that they violate the essential

requirements of a democratic law-based state, they fail to convince me.

V. Adoption of Constitutional Act no. 195/2009 Coll. is not a “breach” of the Constitution

24.

I consider less important, though still worth noting, the fact that the

judgment describes the process of adoption of Constitutional Act no.

195/2009 Coll. as a “breach of the constitutional framework,” a term

that could, for the uninitiated reader, call forth a priori negative

connotations (as a brutal, inappropriate procedure). I consider the use

of such expressive terminology to be improper in a situation where the

chosen term is not generally shared by all participants in the debate,

which is still on-going. This manner of conducting a debate, in which,

moreover one of the participants defines the content of a term that is

as yet disputed, is generally criticized. Completely peripherally, and

outside constitutional law argumentation, we can refer to Karel Čapek’s

critical perceptions in his ironic essay, “Twelve Models for Battle by

the Pen, or a Handbook of Written Argument” in the book Marsyas.

VI. No special authorization was needed for the adoption of Constitutional Act no. 195/2009 Coll.

25.

Part VI./c of the reasoning, among the substantive grounds for

derogation of the constitutional act, states: The Constitutional Court’s

position is that the validity of a constitutional act comes from

meeting all three of these conditions: the procedural condition, the

competence (authorization) condition, and the substantive condition

(consistency with the non-changeable principles of a democratic state

governed by the rule of law).

26. The Constitutional court claims

that general authorization to supplement or amend constitutional acts

is provided by Article 9 par. 1 of the Constitution. The Constitutional

Court itself defines what “supplement” and “amend” the Constitution

mean, and concludes that constitutional Act no. 195/2009 Coll. is

neither a supplement nor an amendment, but is something different,

described as “suspending a constitutional norm.”

27. In this case

the Constitutional Court is again itself defining the meaning of

certain terms, without that definition being generally accepted. I

believe that in the case of such fundamental decision making as this,

the Constitutional Court should first test whether its chosen definition

is generally accepted, or is at least convincingly explained. For

example, I myself think that Constitutional Act no. 195/2009 Coll. is

not a “suspension” of the Constitution, but a supplement.

28.

The practice of the German constitutional framers also supports the idea

that a different method of interpreting the term “supplement the

Constitution” is acceptable. It too is authorized, by Article 79 par. 1

of the Grundgesetz, only to “amend or supplement” the express wording of

the constitutional text. Nevertheless, in 1993 and 2006 the German

constitutional framers, without obstacles, adopted completely new

provisions of Articles 143b and 143c, which have no connection to the

previously valid text of the Constitutional. Evidently it considers that

action to be a supplement to the constitutional text. The question

arises: why should such an interpretation not be possible in this

country as well?

29. The judgment’s reasoning allows that it

would be possible, beyond the framework of an allegedly “general norm of

competence,” which it sees in Article 9 par. 1 of the Constitution, to

adopt other constitutional acts that would be neither a “supplement” nor

an “amendment” of the Constitution, but it requires that such cases be

based on special constitutional authorization. The judgment also

enshrines the rule that “in the absence of a constitutional

authorization to issue constitutional acts ad hoc, the constitutional

conformity of a constitutional act adopted inconsistently with the

constitutionally defined scope of the competence of Parliament could be

established only by protection of the material core under Art. 9 par. 2

of the Constitution.”

30. I believe that with these claims the

Constitutional Court is exceeding its role as a negative legislature and

adopting the competence for positive norm creation by creating new

constitutional rules.

31. I do not agree with the opinion that

the legislature (the Parliament) needs special authorization to adopt

any constitutional acts. I also do not agree with the opinion that

Article 9 par. 1 of the Constitution is an authorizing norm.

Parliament’s general legislative (and constitutional framing) powers are

enshrined in Article 15 of the Constitution. Parliament is completely

autonomous in the legislative branch. It may not be limited in any way

in these powers; it is limited constitutionally only procedurally (by

the rules set forth for creating norms) and by material conditions

(maintaining consistency with the immutable principles of a democratic,

law-based state), enshrined in Article 9 par. 2 of the Constitution.

Lest

I be accused of giving the constitutional framework the power to change

winter into summer, I will add, for completeness, that even the

constitutional framers are, naturally, also limited by the laws of

nature and common sense.

32. Parliament’s sovereign and

autonomous status follows from its strong democratic legitimacy, from

the fact that it is the representative of the citizens of the Czech

Republic, who are the highest sovereign in the democratic state. I

consider the requirement that the constitutional framers need general or

special authorization, which it would grant to itself, for the creation

of any constitutional acts, to be illogical nonsense.

VII. The adoption of Constitutional Act no. 195/2009 Coll. was not barred by the prohibition of retroactivity

33.

The judgment contains a categorical claim that Constitutional Act no.

195/2009 Coll. was in consistent with the prohibition on retroactivity.

It sees retroactivity primarily in the fact that this constitutional act

sets a new rule for dissolving the Chamber of Deputies, which did not

exist at the time when the citizens elected their deputies. This

allegedly “retroactively set the conditions for exercising voting rights

(active and passive). The presumptions on the basis of which the voters

decided in the elections to the Chamber of Deputies were changed with

retroactive effect.” (part VI./b of the judgment’s reasoning).

34.

I disagree with this claim. I state that the constitutional law issue

of the retroactivity of laws is immensely complicated, and a dissenting

opinion does not give me sufficient space or time to present

comprehensive arguments. Czech, and especially foreign, specialized

literature contains hundreds, perhaps thousands, of monographs and

treaties on this question, concerning hundreds of cases from general and

constitutional courts. There is no opportunity here to reproduce them,

even briefly.

35. Therefore, I will limit myself merely to a

concise statement: There is no monolithic concept of retroactivity that

would authorize the categorical declaration of universal claims. There

are several kinds of retroactivity (true, false), each of which leads to

different consequences. Applying the prohibition on retroactivity

differs according to the legal area in which the prohibition is applied:

It is different in public law (constitutional, criminal …), different

in private law (civil, commercial), and different in substantive or

procedural law. Today application of this institution is strongly

influenced by the case law of the European Court of Human Rights and the

European Court of Justice.

Numerous exceptions to the prohibition on retroactivity are recognized.

36.

Current theoretical and judicial views of these problems are unsettled

and controversial. Perhaps the least confusion and highest degree of

agreement exist in criminal law, where the impermissibility of

retroactivity in this country is expressly regulated in Article 40 par. 6

of the Charter. However, even here there are exceptions to this

prohibition (e.g., retroactivity is allowed in a situation where it is

more favorable for the perpetrator (retroactivity in mitius)). Even

here, however, there is no agreement on a number of things (e.g.

retroactivity of the period of limitations, etc.). This question is

relatively thoroughly, though far from unambiguously, clarified in civil

law, where the new institution of “legitimate expectations” is

gradually being implemented.

In the area of constitutional law,

the problem of the prohibition on retroactivity has been addressed

relatively little, and it is difficult to reach social consensus on this

area.

Rather ironically, I can raise one curious question:

Could permitting early elections to the Chamber of Deputies be seen as a

thing that is advantageous for the citizens of the Czech Republic?

Could we not allow an exception to the prohibition on retroactivity here

on in mitius grounds?

I believe that this judgment has treated this complicated issue very lightly, which many people will find difficult to tolerate.

37.

It is a question whether the prohibition on retroactivity of norms, as

the judgment relies on it, can be raised above the most fundamental act

of representative democracy – the ability to test the degree of

legitimacy of political representation in democratic elections. Let us

remember that even in the interim the voter remains the decisive

subject, whose will is the only source for the legitimacy of political

power, and not merely an object observing it from the side.

VIII. Closing Comments

38.

I cannot omit a reminder that in this case the Constitutional Court did

not apply the proportionality test, which it otherwise applies

abundantly.

39. One can also pose the question: Will the damage

caused by annulling this constitutional act not be much greater than the

alleged damage that our constitutional system suffered by its adoption?

Can we, in this case, really permit application of the principle fiat

iustitia, pereant mundus (let the world perish, as long as justice

prevails)? Will it not, in this case, be not justice that prevails, but –

lawyers?

40. Did the Constitutional Court think through the fact

that by posing the problem of retroactivity as one of the essential

grounds for annulling this constitutional act will, for the entire term

of office, petrify the existing regulation of the alternatives for

shortening the term of office? I do not wish to raise premature

concerns, but I believe that the Constitutional Court has opened the

door for questioning any future regulation (even if the new regulation

is general) through an individual constitutional complaint, not only for

a deputy, but perhaps even for any voter.

For all these reasons I believe that the petition from Deputy M. M. should have been denied.