2002/10/02 - Pl. ÚS 5/02: Legislative Process

02 October 2002

HEADNOTES

The

legislature’s aims, if they are not expressed in an appropriate form

and scope in the legal norm (statute) itself, as the motives for the

legislature’s actions, have no influence on its content and validity

(effectiveness) and can not be (independently) evaluated in connection

with them; more precisely, exculpatory reasons for violation of

procedural rules (principles), if such violation occurred during the

legislative process, cannot be derived from the legislature’s aims,

regardless of whether defects in the statute determined ex post were

caused by the legislature’s inattentiveness during voting or its

inadequate knowledge of the material connected with discussion of the

bill.

A

repeat vote, regardless of whether it is on an amending proposal or on a

resolution to approve the bill as a whole, is thus limited by two

conditions, namely a directly raised objection by a deputy and an

affirmative decision by the Chamber of Deputies about it, and these

conditions can only be applied to defects (errors) in the voting itself,

that is, basically, to the technique of voting or determining its

result, not, however, to the merits of the bill under discussion

(substantive incorrectness).


The legislative process, in the phase in which a draft resolution is

presented to the plenum of the Chamber of Deputies, which, by being

voted on, is to approve a bill as a whole (§ 95 para. 3 al. 2 of Act no.

90/1995 Coll.), is only the conclusion of the decision making process,

where a deputy no longer has any options other than to vote in favor or

against (or not vote at all), because during the previous phases of the

process he had sufficient time and opportunities to apply his proposals

(express his political positions), for his vote, generally, but

especially in this closing phase, to be an expression (consequence) of

his own political decision; subsequently, in that process this decision,

as a resulting whole (compromise) arises from the will of the majority

expressed in a free vote (Art. 6 sentence 1 of Const. Act no. 1/1993

Coll.).


Therefore, a Chamber of Deputies resolution approving a bill, must be

seen as a decision containing (in the given procedural phase) a verdict

of final validity, whereby the legislative process in the Chamber of

Deputies ends; the statutory requirement that the (Chamber of Deputies)

approved bill be sent by the chairman of the Chamber of Deputies to the

Senate without undue delay (§ 97 para. 1 of Act no. 90/1995 Coll.), has

neither a substantive nor a time connection with the Chamber of Deputies

decision making process itself, and actually, as an instruction of a

technical nature, which is to avoid administrative delays between the

(completed) legislative process in the Chamber of Deputies and the

decision making powers of the Senate (§ 97 para. 2 to 4 of Act no.

90/1995 Coll.), it has no influence on the Chamber of Deputies decision

making process itself, all the less so could it renew the process.

In the legislative process, the foremost requirement is that legal acts

on which the state governed by the rule of law, and accordingly the

life of citizens in it, rests, be stable, convincing and necessary;

however, such acts and the attainment of the necessary authority of

legislative bodies can not be achieved otherwise than by respect for the

rules (fundamentals of legislative activity), which, in any case, the

Chamber of Deputies itself, as a significant bearer of the legislative

power, provided by statue for its own activity.

 

CZECH REPUBLIC

CONSTITUTIONAL COURT
JUDGMENT

IN THE NAME OF THE REPUBLIC

 

 

The

Plenum of the Constitutional Court decided, on 2 October 2002, in the

matter of a petition from a group of senators to annul Act no. 501/2001

Coll., which amends Act no. 513/1991 Coll., the Commercial Code, as

amended by later regulations, Act no. 40/1964 Coll., the Civil Code, as

amended by later regulations, Act no. 99/1963 Coll., the Civil Procedure

Code, as amended by later regulations, Act no. 591/1992 Coll., on

Securities, as amended by later regulations, Act no. 358/1992 Coll., on

Notaries and their activities (the Notarial Procedure Code), as amended

by later regulations, Act no. 370/2000 Coll., which amends Act no.

513/1991 Coll., the Commercial Code, as amended by later regulations,

Act no. 358/1992 Coll., on Notaries and their activities (the Notarial

Procedure Code), as amended by later regulations, Act no. 15/1998 Coll.,

on the Securities Commission and amending and supplementing other Acts,

as amended by Act no. 30/2000 Coll., Act no. 200/1990 Coll., on

Administrative Infractions, as amended by later regulations, Act no.

99/1963 Coll., the Civil Procedure Code, as amended by later

regulations, and Act no. 328/1991 Coll., on Bankruptcy and Settlement,

as amended by later regulations, Act no. 219/2000 Coll., on the Property

of the Czech Republic and Its Functioning in Legal Relationships, as

amended by later regulations, and Act no. 455/1991 Coll., on Licensed

Trades (the Trades Licensing Act), as amended by later regulations, as

follows:

1. Act no. 501/2001 Coll., which amends Act no.

513/1991 Coll., the Commercial Code, as amended by later regulations,

Act no. 40/1964 Coll., the Civil Code, as amended by later regulations,

Act no. 99/1963 Coll., the Civil Procedure Code, as amended by later

regulations, Act no. 591/1992 Coll., on Securities, as amended by later

regulations, Act no. 358/1992 Coll., on Notaries and their activities

(the Notarial Procedure Code), as amended by later regulations, Act no.

370/2000 Coll., which amends Act no. 513/1991 Coll., the Commercial

Code, as amended by later regulations, Act no. 358/1992 Coll., on

Notaries and their activities (the Notarial Procedure Code), as amended

by later regulations, Act no. 15/1998 Coll., on the Securities

Commission and amending and supplementing other Acts, as amended by Act

no. 30/2000 Coll., Act no. 200/1990 Coll., on Administrative

Infractions, as amended by later regulations, Act no. 99/1963 Coll., the

Civil Procedure Code, as amended by later regulations, and Act no.

328/1991 Coll., on Bankruptcy and Settlement, as amended by later

regulations, Act no. 219/2000 Coll., on the Property of the Czech

Republic and Its Functioning in Legal Relationships, as amended by later

regulations, and Act no. 455/1991 Coll., on Licensed Trades (the Trades

Licensing Act), as amended by later regulations, are annulled as of 31

March, 2003.

2. The petition to annul § 183b para. 3 let. a) of

Act no. 513/1991 Coll., the Commercial Code, as amended by later

regulations, is denied.

 


REASONING

 

I.
 

The

group of 22 senators, as an entitled petitioner [§ 64 para. 1 let. b)

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

annulment of Act no. 501/2001 Coll., which amends Act no. 513/1991

Coll., the Commercial Code, as amended by later regulations etc.;

according to the reasoning of the petition the procedure by which the

contested Act was passed shows unconstitutional defects, because, after

it was approved as document 824 at the 39th session of the Chamber of

Deputies, in the second reading, with the passed amending proposal from

deputy Pilip [to the formulation of § 183b para. 3 let. a)] and

subsequently passed in the third reading with the passed amending

proposal (by resolution no. 1828) on 31 October, 2001, in the next

session, at the extraordinary 42nd session of the Chamber of Deputies,

the passing resolution was “revoked,” and then – after deletion of

deputy Pilip’s amending proposal – the amended bill was newly approved

on 15 November, 2001 (by resolution no. 1859), and with this resolution,

in the “corrected” (revoked) version, it was given to the Senate.
 

The

Senate of the Parliament of the CR reacted to this procedure, which is

unconstitutional according to the petitioners, at its eleventh session,

on 22 November, 2001, by stating that the bill, (and the resolution

passing it), submitted by the Chamber of Deputies as document no. 150 is

not a “bill under Art. 45 of the Constitution of the CR” and for that

reason did not consider it further.
 

According

to the petitioners, the procedure chosen by the Chamber of Deputies was

justified by an alleged attempt “to prevent serious economic damage

which could occur (due to error by the Chamber of Deputies)”; however,

the petitioners believe that such a procedure, however explained, is “in

conflict with the law.” In the adjudicated matter, this was the

“revocation of a final and substantive resolution of the Chamber of

Deputies,” by which a bill was (definitively) passed, and, in the

version thus passed, was supposed to be given to the Senate, as the

resolution passing it became “perfected in the moment of the approval

vote, which was not directly cast doubt upon.”
 

With

reference to the principle of political decision making according to

which a substantive decision by an ad hoc established majority, passed

in a particular situation protects this (potentially variable) majority,

and in particular with reference to Art. 6 (in connection with Art. 39

para. 1 and 2) and also to Art. 47 para. 1 and 3 and Art. 50 para. 2 of

the Constitution of the CR, and after analysis of the possibilities

under which the Chamber of Deputies may, within the limits of

constitutional intentions and statutory safeguards, return to a passed

act (in a new vote), the petitioners concluded that the Chamber of

Deputies, by the criticized procedure, violated the “relevant

non-amendability of the passed statute”; thus, by passing the contested

statute the Chamber of Deputies found itself in conflict with the

constitutional order of the republic. Seeking, first of all, annulment

of the entire Act no. 501/2001 Coll., the petitioners, in an alternative

request, proposed, for one thing, annulment of the Act’s § 183b para. 3

let. a), and for another, annulment of other amended provisions, which

they identified precisely in the proposed verdict and whose

unconstitutionality, regardless of the unconstitutional manner in which

they were passed, they derived (without further explanation) from Art. 4

and Art. 11 of the Charter of Fundamental Rights and Freedoms, or Art. 1

para. 1 of the Protocol to the Convention on the Protection of Human

Rights and Fundamental Freedoms and Art. 26 of the International

Covenant on Civil and Political Rights.
 

When

called upon by the Constitutional Court, the Chamber of Deputies and

the Senate, as parties to the proceedings, submitted position statements

on the petition from the group of Senators, under § 69 of Act no.

182/1993 Coll., as amended by later regulations. In view of the nature

of the matter, a position statement was also requested from the

government, under § 48 para. 2 of Act no. 182/1993 Coll., as amended by

later regulations.
 


II.
 

Based

on written materials (Chamber of Deputies documents and stenographic

records of the 39th and 42nd sessions of the Chamber of Deputies) which

were submitted to the Constitutional Court upon its request by the

Office of the Chamber of Deputies, it is evident that
 

1) concerning the 39th session of the Chamber of Deputies:
a)  

 the act under review was discussed at the initiative of a group of

deputies, and, as Chamber of Deputies document no. 824, was sent for

discussion to the economic and constitutional law committees, and was

discussed at the same time by the budget committee, on its own

initiative; according to those who proposed the act, it concerned a

“technical amendment, the core of which consisted of removing technical

legislative errors,”
 

b)  

 a number of amending proposals to the original bill (Chamber of

Deputies documents 824/2 – 5) were discussed both in the abovementioned

committees, and in detailed debate during the second reading in the full

Chamber of Deputies; some of them were passed by vote of the Chamber of

Deputies and some were rejected,
 

c)  

 in the course of the third reading, deputy Pilip raised an objection

concerning the alleged “non-votability” of his amending proposal, passed

in the second reading [this was a change to § 183b para. 3 let. a)],

this was passed as an “acceptance of a technical change,” and his

amending proposal, raised previously in the second reading, was passed

by a vote (number 531; out of 177 present, 97 in favor, 12 against),
d)  

 the resolution by which the Chamber of Deputies “expressed approval of

Chamber of Deputies document 824 as amended by amending proposals,” was

passed under number 1828 by the necessary majority (vote number 532;

out of 177 present, 159 in favor, 2 against); during voting and directly

afterwards none of the deputies raised an objection against the conduct

or result of the voting (§ 76 para. 5 and 6 of Act no. 90/1995 Coll.);

2) concerning the 40th session of the Chamber of Deputies, held on 15 November, 2001, the stenographic record indicates that:
a)  

 this session of the Chamber of Deputies was called by the chairman

under § 51 para. 4 of the rules of order, at the request of 41 deputies,

and its conduct was subject to the regime for the legislative process

in a state of legislative emergency (§ 99 of Act no. 90/1995 Coll.),

which was declared for the period from 14 to 21 November, 2001; after

debate the Chamber decided by a vote (no. 4; out of 161 present, 110 in

favor, 48 against), that this regime would continue during this session

(§ 99 para. 4 of Act no. 90/1995 Coll.),
 

b)  

 the second point for discussion on the agenda was the proposal from

the social democratic deputies to revoke Chamber of Deputies resolution

no. 1828 of 31 October 2001,
 

c)  

 the proposal was justified by a representative of the proponents –

briefly summarized – on the grounds that the vote about deputy Pilip’s

“non-votable” amending proposal (to § 183b) for one thing, “within the

process of approving individual amending proposals, violated the rules

of order of the Chamber of Deputies,” and for another – with regard to

all the circumstances under which voting on this proposal occurred – the

Chamber of Deputies was sufficiently confused in its discussions that

“it is evident that it quite clearly did not know which proposal it was

voting on,” whereupon:
 

d)    after discussion, the Chamber of Deputies, by vote
aa)

(number 11; out of 108 present, 84 in favor, 16 against) revoked its

resolution no. 1828 of 31 October 2001, in which it agreed with the

proposal from a group of deputies to issue the adjudicated Act,
bb)

(number 15; out of 110 present, no one in favor, 98 against), did not

pass deputy Pilip’s amending proposal (to § 183b) and then
cc)

(number 16; out of 105 present, 92 in favor, 4 against) passed (as

number 1859) a resolution in which it “approved a proposal from a group

of deputies to issue an act which amends Act no. 513 of 1991 Coll., the

Commercial Code, as amended by later regulations etc., according to

Chamber of Deputies document 824, as amended by the approved amending

proposals,” and
dd) in this newly passed version gave the bill to the

Senate for further proceedings; because the Senate did not address the

substance of the Act, after the prescribed period expired (§ 97 para. 2

of Act no. 90/1995 Coll.) the chairman of the Chamber of Deputies

submitted it to the president for signature (§ 98 para. 1 of Act no.

90/1995 Coll.).

Thus, we can summarize and conclude that the

adjudicated statute went through three phases in the legislative process

in the Chamber of Deputies; in the first phase it was (after amending

proposals were settled) passed by resolution no. 1828 of 31 October

2001, in the second it was revoked on 15 November 2001, and subsequently

(after the previously passed amending proposal from deputy Pilip was

rejected in a new vote) it was again, as a whole, approved by resolution

no. 1859 of 15 November 2001, and that new version (with the deletion

of the text of deputy Pilip’s amending proposal to § 183b) was given to

the Senate and later to the president of the republic for signature; it

was published in the Collection of Laws in part 180 under no. 501 with

the date of distribution of the Collection being 31 December 2001.
 


III.
 

The

opinion of a considerable majority of the Chamber of Deputies is that,

although the Chamber of Deputies approved the adjudicated statute in its

closing vote on 31 October 2001, the legislative process itself was not

ended thereby, because the statute thus passed by the Chamber of

Deputies was not given to the Senate before the day when the 42nd

session was held, nor was it given to the president of the republic for

signature, and because “after discussion the proposal for revoking the

Chamber of Deputies resolution which approved the bill” (more precisely

due to the non-amendability of a resolution passing a bill), neither the

Constitution nor a legal regulation of lesser legal force (Act no.

90/1995 Coll., on the Rules of Order of the Chamber of Deputies) sets a

binding deadline, the road to revoking the passing resolution and newly

discussing the statute is open.”
 

In

contrast, the petitioners, relying on the principle of “relative

non-amendability of an (already validly passed) statute,” with reference

to Art. 6 in connection with Art. 39 para. 1 and 2, Art. 47 para. 1 and

3 and Art. 50 para. 2 of the Constitution of the CR, consider the

proceedings of the Chamber of Deputies contested by them to be

unconstitutional.
 

Given these completely opposing positions, it was up to the Plenum of the Constitutional court to evaluate and decide whether:
a)  

 one can derive from the existing constitutional order, or from the

area of ordinary law (Act no. 90/1995 Coll.) a time or substantive

deadline beyond which a decision already passed by the Chamber of

Deputies, whereby a bill was approved after a final (closing) vote, can

not be changed, or whether after revoking a resolution passing a statute

the legislative process concerning it can continue and a previously

passed statute can be discussed again and accepted in a new (corrected)

version
b)    if there is such a boundary, what is its significance

in terms of protection of constitutionality and what consequences arise

from exceeding it, in other words, whether the adjudicated Act no.

501/2001 Coll., which amends the Commercial Code, as amended by later

regulations etc., was passed in a constitutionally prescribed manner.

In

the Constitutional Court’s opinion, due to their very nature, all the

previously mentioned claims of the Chamber of Deputies aimed at

clarifying the circumstances under which the adjudicated revocation

occurred, or aimed at the reasons which led the Chamber of Deputies to

the revocation, are excluded from the thus delineated topic for decision

because they are claims which are not decisive from the viewpoint of

evaluating the merits of the matter. In any case, both the statements of

the Chamber of Deputies and the arguments of the government are

directed exclusively at questions connected with the rules of order of

the Chamber of Deputies, and because in both cases they completely

ignore the conditions of the constitutionally prescribed process for

passing laws (§ 68 para. 2 of Act no. 182/1993 Coll., as amended by

later regulations), they are statements without practical significance.
 

The

legislature’s aims, if they are not expressed in an appropriate form

and scope in the legal norm (statute) itself, as the motives for the

legislature’s actions, have no influence on its content and validity

(effectiveness) and can not be (independently) evaluated in connection

with them; more precisely, exculpatory reasons for violation of

procedural rules (principles), if such violation occurred during the

legislative process, cannot be derived from the legislature’s aims,

regardless of whether defects in the statute determined ex post were

caused by the legislature’s inattentiveness during voting or its

inadequate knowledge of the material connected with discussion of the

bill.
 

Therefore, these

circumstances remained outside the Constitutional Court’s focus, just as

it consciously omitted questions connected with the claimed error of

the deputies, reasons for possibly excusing that error and so on,

because the claimed illogic of the amending proposal [from deputy Pilip

to § 183b)], which was passed in the original vote by the plenum of the

Chamber of Deputies, and which subsequently became the apparent reason

for revoking the final resolution to approve the discussed statute,

after which this amending proposal was rejected in a new vote and

deleted from the final, newly approved text of the statute.

 


IV.
 

Although

the legislative process, as governed by the Act on the Rules of Order

of the Chamber of Deputies (Act no. 90/1995 Coll.), is not built on the

principle of the infallibility of the legislators, nevertheless, in

various (theoretically) possible variations of the mechanism of repeated

voting and reasons for it, the currently valid law specifies conditions

so that it reserves to each deputy the right, during a vote or directly

afterwards, that is, after the chairman of the session has, in the

prescribed manner, announced the results of the vote and announced that a

resolution was passed (§ 76 para. 1 of Act no. 90/1995 Coll.), to raise

an objection, either to the course of the voting or the result (ditto

para. 5), and only if the objection thus raised is accepted by the

plenum of the Chamber of Deputies (without revocation of the previous

vote) is it possible to repeat the vote, not, however, to return to a

bill in new discussion.
 

A

repeat vote, regardless of whether it is on an amending proposal or on a

resolution to approve the bill as a whole, is thus limited by two

conditions, namely a directly raised objection by a deputy and an

affirmative decision by the Chamber of Deputies about it. Moreover, due

to their nature, these conditions can only be applied to defects

(errors) in the voting itself, that is, basically, to the technique of

voting or determining its result, not, however, to the merits of the

bill under discussion (substantive incorrectness). Other mechanisms are

constitutionally prescribed for removing these errors (Art. 47 para. 2,

Art. 47 para. 1 and 3 and Art. 50 para. 2 of Const. Act no. 1/1993

Coll., as amended by later regulations); through these mechanisms the

Chamber of Deputies, but under different procedural conditions, can

return a previously approved bill, and discuss it again – in connection

with reservations from the Senate or with its amending proposals or with

reservations from the president of the republic – and decide on them by

a repeat vote. In that case, however, this is not a procedure initiated

by the Chamber of Deputies’ own decision, but one which is the

procedural result of the lack of approval of another party in the

legislative process with the bill as passed by the Chamber of Deputies,

and, as that party’s constitutionally defined power, it requires the

Chamber of Deputies to conduct a new vote (new discussion within the

intentions of the disagreement expressed). In relation to the approved

bill, however, the power of the Chamber of Deputies itself, as is

indicated by its rules of order and ultimately also from the nature of

the legislative process as a decision making process in general, is

exhausted by the passage of a resolution in which it approved a bill,

that is, a – procedurally – uncontested announcement of the results of a

vote by the chairman of the session.
 

The

legislative process, in the phase in which a draft resolution is

presented to the plenum of the Chamber of Deputies, which, by being

voted on, is to approve a bill as a whole (§ 95 para. 3 al. 2 of Act no.

90/1995 Coll.), is only the conclusion of the decision making process,

where a deputy no longer has any options other than to vote in favor or

against (or not vote at all), because during the previous phases of the

process he had sufficient time and opportunities to apply his proposals

(express his political positions), for his vote, generally, but

especially in this closing phase, to be an expression (consequence) of

his own political decision; subsequently, in that process this decision,

as a resulting whole (compromise) arises from the will of the majority

expressed in a free vote (Art. 6 sentence 1 of Const. Act no. 1/1993

Coll.).
 

Therefore, a Chamber

of Deputies resolution approving a bill, must be seen as a decision

containing (in the given procedural phase) a verdict of final validity,

whereby the legislative process in the Chamber of Deputies ends; the

statutory requirement that the (Chamber of Deputies) approved bill be

sent by the chairman of the Chamber of Deputies to the Senate without

undue delay (§ 97 para. 1 of Act no. 90/1995 Coll.), has neither a

substantive nor a time connection with the Chamber of Deputies decision

making process itself, and actually, as an instruction of a technical

nature, which is to avoid administrative delays between the (completed)

legislative process in the Chamber of Deputies and the decision making

powers of the Senate (§ 97 para. 2 to 4 of Act no. 90/1995 Coll.), it

has no influence on the Chamber of Deputies decision making process

itself, all the less so could it renew the process. 

 

For

the reasons thus laid out, the Constitutional Court concluded that the

question posed in III let. a) must be answered in the affirmative: it

can be derived, both from the constitutional order of the Czech

republic, and from ordinary law (Act no. 90/1995 Coll.), and from the

nature of the matter, that an uncontested announcement of the results of

a vote on a resolution, in which the Chamber of Deputies expressed

approval with a bill as a whole, is a material and time limit, beyond

which revocation of this resolution and subsequent new discussion of the

bill revoked are not permissible, also because – apart from the reasons

already laid out – in this subsequent new discussion of the adjudicated

act the conditions of a proper legislative process were not fulfilled;

stated more precisely and completely, this process was completely absent

from the constitutional safeguards.
 


V.
 

If

the Chamber of Deputies, under circumstances mentioned previously,

moreover after a period of some time and at a different session,

addressed revocation of its own resolution (of 31 October, number 1828),

in which it approved the draft of the adjudicated statute, and in this

newly opened legislative process again discussed the previously approved

bill and then passed a different version of it, it burdened the

legislative process concerning the bill with a defect which, from the

viewpoint of procedural integrity, cannot be ignored.
 

In

a number of its judgments concerning the review of decision making by

public bodies, the Constitutional Court repeatedly laid out principles

based on which – from the viewpoint of the elements of a state based on

the rule of law, among other things – respect for procedural rules is

essential; in brief: the settled decision making practice of the

Constitutional Court concluded that only in a procedurally flawless

process (a constitutional proceedings) can a legal and constitutional

result (decision) be achieved, and therefore increased attention must be

paid to the procedural integrity of the decision making process

(proceedings) and it must be provided considerable protection.
 

If

these principles related to the constitutionality of proceedings before

public bodies and to decision issued in them (to the specified

procedure under Art. 36 para. 1 of the Charter of Fundamental Rights and

Freedoms), there are no reasonable grounds to diverge from these

principles in matters of review of the legislative process and statutes

(legal norms) passed in them, because, although the legislative decision

making process differs to a certain degree from decision making

processes in proceedings before other public bodies – and in that sense

it can be understood as a decision making process sui generis – the

guiding principles of decision making in which a final result is reached

are, in both cases, identical. Moreover, one can not lose sight of the

fact that the consequences arising from legislative acts are, due to

their society-wide effect, certainly more significant that in cases of

individual (defective) decisions by other public bodies. Thus, in the

legislative process, the foremost requirement is that legal acts on

which the state governed by the rule of law, and accordingly the life of

citizens in it, rests, be stable, convincing and necessary; however,

such acts and the attainment of the necessary authority of legislative

bodies can not be achieved otherwise than by respect for the rules

(fundamentals of legislative activity), which, in any case, the Chamber

of Deputies itself, as a significant bearer of the legislative power,

provided by statue for its own activity.
 

Taking

that into account, as well as the reasons which were already laid out

in this judgment’s reasoning, the requirement in the rules of order,

aimed at the chairman of the Chamber of Deputies, namely, that a bill

which the Chamber of Deputies has approved be sent to the Senate without

delay (§ 97 para. 1 of Act no. 90/1995 Coll.), or the question of

whether and to what extent that requirement was met in the adjudicated

matter, is, in terms of the protection of constitutionality (Art. 83 of

Const. Act no. 1/1993 Coll.), not decisive in the matter at hand;

likewise the reasons which the Chamber of Deputies cites to support the

claimed permissibility of its revocation will not hold up. Although –

unlike in the previous constitutions (of the Czechoslovak state) – the

content of the rules of order of the Chamber of Deputies is not

constitutionally delineated, there are no reasonable grounds to doubt

that the basic principles for the actions of legislative assemblies, and

also the principles for contact between both chambers (and with the

government) and externally may not exceed the constitutional framework

at all. Likewise the claim that the adjudicated matter concerned a

significantly complicated bill and that in the closing phase of the

legislative process (in the third reading) the Chamber of Deputies was

so confused that it “quite clearly did not know which bill it was voting

on,” is, from the aspect of procedural integrity of the decision making

process, of no significance whatsoever.
 

The

complexity of the materials which the Chamber of Deputies discusses,

the number or variety of amending and other proposals which are raised

concerning a bill in the course of discussions, can not, either by

themselves or in connection with an ex post attempt “to correct an error

and prevent serious economic damage,” justify violation of a

constitutionally protected procedure in the legislative process and the

principles already laid out.
 

It

has already been mentioned that in a parliamentary democracy political

decisions arise from the will of the majority, expressed in a free vote;

conditions which, under the safeguards expressly stated by the

Constitution, ensure the constitutional legitimacy and the legality of a

decision, and which form the relevant majority during the legislative

process, are, of course, diverse, and virtually always not only attach

to the material which is the subject of discussion and subsequent

decision, but are themselves influenced, in the creation of a majority

ad hoc, by the given time, or the circumstances which arise from it. The

majorities thus established relevant to making a decision (approving a

bill), of course are (may be) variable, not infrequently so much so,

that over time, in the cited situation they can (could) lose their

numerical relevance and become a minority, which would, however, be

exposed to the danger of reversal of a previously accepted decision. The

protection of majorities thus created, more precisely their previously

accepted decision, is therefore necessary not only in terms of the

stability of legal acts, but, as the result of agreement reached at a

given time (a compromise of political will), are also one of the

guarantees of constitutionally which prevents arbitrariness in decision

making, arbitrariness for which, naturally, there is no room. In other

words: the fact that an approved bill has not yet been sent to the

Senate by the chairman of the Chamber of Deputies does not create

grounds for the Chamber of Deputies to renew the already completed

decision making process on the bill and return to it in new decision

making on the merits. Therefore, the moment when the decision making

process in a given phase of the legislative process irreversibly ended

by the making of a decision is sufficiently significant, not only for

the legality of the decision made, but also for its stability, that the

limit set by it can not be constitutionally crossed, and as such, in its

essence is supposed to prevent the potential danger of usurpation of a

power which does not belong to the Chamber of Deputies. The opposing

majority opinion of the Chamber of Deputies is erroneous also because,

in a state governed by the rule of law, “State authority is to serve all

citizens and may be asserted only in cases, within the bounds, and in

the manner provided for by law.” (Art. 2 para. 3 of Const. Act no.

1/1993 Coll., as amended by later regulations); thus, not every wish of a

parliamentary body, but only such as respects the law, whether

constitutional or ordinary (its rules of order) and is based on its

limitations, can become law.
 

Therefore,

the Constitutional Court concluded that the second question posed above

under III let. b) must also be answered in the affirmative: exceeding

the bounds of non-amendability of an accepted decision (a resolution

which approved the statute under discussion) and the principles laid out

above is a violation of the constitutionality of the legislative

process; therefore, the adjudicated Act no. 501/2001 Coll., which amends

Act no. 513/1991 Coll., the Commercial Code, as amended by later

regulations etc., was not passed by the Chamber of Deputies in a

constitutionally prescribed manner.
 

This

conclusion, in and of itself, makes redundant review of the

constitutionality of the adjudicated statute’s individual provisions,

which the petitioners identify as unconstitutional in their alternative

request, and therefore it was not necessarily to review them as

individual matters.
 


VI.
 

In

its deliberations, the Constitutional Court did not ignore the position

statement of the government which, although it is not a party to these

proceedings, according to the statement provided as requested, believes

that because of possible considerable problems, for example in the

capital markets, and because of error in the conduct of a critical

session of the Chamber of Deputies, in which the adjudicated statute was

first passed, “it would be appropriate to tolerate even a relatively

problematic revocation, especially if it occurred in the interest of

creating an opportunity for the deputies to consciously express their

will. Although the government’s reminder must be taken with all

seriousness, and although there is no doubt that the amendment of the

Commercial Code brings a number of desirable changes, these facts can

not outweigh the fundamental postulate of constitutionality, that is,

that laws be passed by the legislative bodies of Parliament in a

constitutionally prescribed manner (Art. 1, Art. 2 para. 3, Art. 45 of

Const. Act no. 1/1993 Coll., as amended by later regulations).
 

Because

the disputed issues in § 183b para. 3 let. a) of the adjudicated

statute, against which the petitioners’ substantive reservations are

primarily aimed, can not be separated from the other material, as the

Chamber of Deputies, by resolution of 15 November 2001 (no. 1859)

revoked its previous resolution of 31 October 2001 (no. 1828), which

approved this statute as a whole, there was no alternative but to annul

Act no. 501/2001 Coll., which amends Act no. 513/1991 Coll., the

Commercial Code, as amended by later regulations etc., for not having

being passed in a constitutionally prescribed manner, in view of the

circumstances described by the government, as of the day evident from

the verdict of this judgment (§ 70 para. 1 of Act no. 182/1993 Coll., as

amended by later regulations).
 

The

negative verdict concerning the petition to annul § 183b para. 3 let.

a) of Act no. 513/1991 Coll., the Commercial Code, as amended by later

regulations, is supported by the fact that a formally and substantively

identical petition was filed with the Constitutional Court on 13

December 2001 and is being considered independently under file no. Pl.

ÚS 38/01; thus, that verdict is justified by the obstacle of lis pendens

(§ 35 para. 2 of Act no. 182/1993 Coll., as amended by later

regulations).

Notice: Decisions of the Constitutional

Court can not be appealed (§ 54 para. 2 of Act no. 182/1993 Coll., as

amended by later regulations).

Brno, 2 October 2002