The Origins of the Constitutional Judiciary
All modern constitutions which originated at the end of the 18th and the beginning of the 19th century contained, to a varying degree and in various forms, two basic principles – the principle of the sovereignty of the people and the principle of the separation of powers into the legislative, executive and judicial powers. With the prevailing conception of a constitution as a social contract, binding on everyone in the state, there was no dispute over the fact that each such contract presupposed not only agreement at its inception, but also contained within itself the seeds of future conflicts. Therefore it was essential for there to be some body which was authorized to deal with such disputes and decide them with finality.
Alexander Hamilton, one of the framers of the Constitution of the United States of America, is generally considered as the founder of the conception which assigns to the judiciary the role as the guardian of the constitution:
“No legislative act . . . contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principle; that the servant is above his master; that the representatives of the people are superior to the people themselves.”
The judiciary, which is, in terms of power, relatively the weakest of the three existing powers and which is not capable, through the instruments of power, of usurping authority, was thus considered the most competent to serve as an intermediary between the citizen and the legislature. The conviction that discord between the judiciary and the legislative power can never be so extensive as to seriously threaten the whole political system also lead to the view that it is indeed the judiciary which should act as a brake upon the legislature. The classical model of a general or diffuse constitutional judiciary arose upon these principles, that is, that the protection of constitutionalism is carried out by all courts in the judiciary, above all, however, by the U.S. Supreme Court.
The Constitutional Judiciary in Europe
The constitutional judiciary in continental Europe was established on the basis of similar ideas. Although this development came about by the different route of creating specialized constitutional courts which stood apart from their ordinary court systems and which are often entrusted with other powers as well, still their status and tasks demonstrate the generally held view that democracy is unthinkable without a constitutional judiciary. In the words of the great legal thinker and a native of Prague, Hans Kelsen:
“A Constitution which would not establish a constitutional court with the power to annul unconstitutional acts, is a light which does not shine.”
The European tradition of constitutional judiciary developed chiefly after the Second World War, as a natural reaction against the brutal trampling, by Nazi and fascist dictatorships, upon the system of values and democratic principles. The constitutional judiciary in the Czech Republic is also based upon the same principles and upon similar historical experiences with the injustice of the Nazi and Communist systems.
The Czechoslovak First Republic
The history of the constitutional judiciary in our territory begins shortly after the birth of the Czechoslovak Republic when, pursuant to the Constitutional Charter of 1920, a separate Constitutional Court of Czechoslovakia was established in 1921. This seven-member body was formed such that the President of the Republic appointed three Justices, including the Chairman, and a further four were delegated to their office, two from the Supreme Court and two from the Supreme Administrative Court. Justices had a ten-year term of office. The first group of Justices of the Constitutional Court of the Czechoslovak Republic was appointed on 7 November 1921, Karel Baxa becoming its Chief Justice, and Antonín Bílý (Deputy Chief Justice), Konstantin Petrovič Mačík, Josef Bohuslav, Václav Vlasák, František Vážný and Bedřich Bobek its other Justices. After the term of office of the Court‘s first composition had expired, a new contingent of Justices was appointed only in 1938 with Jaroslav Krejčí as its Chief Justice; naturally, it did not hold court during the war period, and at the war’s end its work was not resumed. The work of the First Republic’s Constitutional Court is evaluated as being the subject of little interest and not of great significance.
The Constitutional Judiciary in the Period of the Communist Regime (1948-1989)
The constitutions of 1948 and 1960, which reflected the legal situation of the totalitarian state of that time, no longer called for a constitutional court. An odd situation came about after the state was federalized in 1968, as the Act on the Czechoslovak Federation (36 KB, PDF) not only envisaged the creation of a constitutional court for the federation, but also of a constitutional court for each national republic. None of these courts was ever established, however, even though the unimplemented constitutional directive stayed in effect for more than two decades.
The Constitutional Court of the Czech and Slovak Federal Republic (1991 – 1992)
It was only after the collapse of the Communist regime that a genuinely-operating Constitutional Court of the Czech and Slovak Federal Republic (ČSFR) was established pursuant to a federal constitutional act (44 KB, PDF) from February, 1991. That federal court was a twelve-member body in which each of the Federation’s constituent republics were represented by six Justices, whose term of office was meant to be seven years. The Court’s seat was also in Brno. Ernest Valko was appointed the Chief Justice of the Constitutional Court of the ČSFR, and Vlastimil Ševčík became its Deputy Chief Justice. The members of Panel I were Justices Marián Posluch, Jiří Malenovský, Ivan Trimaj, Antonín Procházka, and Ján Vošček was its substitute member. Panel II comprised Justices Pavel Mates, Peter Kresák, Viera Strážnická, Vojen Güttler, and Zdeněk Kessler was its substitute member. Despite its short existence, the Federal Constitutional Court adjudicated more than one thousand matters, and the Constitutional Court of the Czech Republic has, in its work, followed the federal court‘s legal views in a number of its decisions.
The First Period of the Constitutional Court of the Czech Republic (1993 – 2003)
Following the dissolution of the Czechoslovak federation, the existence of a constitutional court was also provided for in the Constitution of the independent Czech Republic, of 16 December 1992. The first Constitutional Court of the Czech Republic began its work on 15 July 1993. On that day, Václav Havel, then the President of the Republic, appointed twelve of the fifteen Justices of this Court to a ten-year term of office, consent to their appointment being given at that time by the Assembly of Deputies of the Parliament due to the fact that the Senate did not yet exist. This occurred a mere month after the Assembly of Deputies had approved Act No. 182/1993 Sb., on the Constitutional Court, which, with reference to Art. 88 of the Constitution, governed in particular the organization of this Court and proceedings before it, and designated the city of Brno as the Court’s seat.
Thus, with the appointment of the first twelve Justices of the Constitutional Court, a new era for the constitutional judiciary commenced, moreover in a newly forming state. Therefore, it is appropriate to recall the initial composition of the Constitutional Court of the Czech Republic.
Zdeněk Kessler was the Chief Justice of the Constitutional Court until his resignation due to health reasons in February, 2003, and Miloš Holeček was the Deputy Chief Justice (following Zdeněk Kessler’s resignation, the President of the Republic, Václav Klaus, appointed him Chief Justice for the remainder of his term of office). The other Constitutional Court Justices appointed on 15 July 1993 were Iva Brožová, Vojtěch Cepl, Vladimír Čermák, Pavel Holländer, Vojen Güttler, Vladimír Jurka, Vladimír Klokočka, Vladimír Paul, Antonín Procházka and Vlastimil Ševčík. The Court’s bench was further filled in, in November, 1993, with the addition of Ivana Janů, who also became the second Deputy Chief Justice, and of Eva Zarembová, then completed, at the end of March, 1994, when the President of the Republic appointed the fifteenth and final Justice, Pavel Varvařovský.
The Constitutional Court continued to sit in this composition until 8 December 1999, when Iva Brožová resigned her seat. Jiří Malenovský (who was the first Justice to be approved by the Senate of the Parliament) replaced her on 4 April 2000. In connection with her election to be a judge ad litem of the International Criminal Tribunal for the former Yugoslavia, on 9 February 2002 Ivana Janů resigned the office of Justice, thus also the office of Deputy Chief Justice, of the Constitutional Court, and on March 20 of that year Eliška Wagnerová was appointed to her seat. Vladimír Paul, who died on 3 April 2002, was replaced by František Duchoň (appointed on 6 July 2002), and the seat of Vlastimil Ševčík, who died on 15 December 2002, was filled by Jiří Mucha (who was appointed on 28 January 2003). After Zdeněk Kessler‘s resignation (due to health reasons on 12 February 2003) from the office of Chief Justice of the Constitutional Court, the Court’s bench was filled out by the appointment on 3 June 2003 of Miloslav Výborný.
The situation of a full bench did not last long, as on 15 July 2003 the terms of office of Justices Vojtěch Cepl, Vladimír Čermák, Vojen Güttler, Pavel Holländer, Vladimír Jurka, Vladimír Klokočka, Vladimír Paul, and Antonín Procházka expired, as did that of Miloš Holeček, who had been appointed the Chief Justice after the resignation of Zdeněk Kessler. A month later (6 August 2003) Vojen Güttler a Pavel Holländer were appointed to a further term of office, Pavel Holländer being also elevated to the position of Deputy Chief Justice.
The Current Composition of the Constitutional Court
In 6 August 2003, the same day as he reappointed Vojen Güttler and Pavel Holländer, the President of the Republic appointed the current Chief Justice of the Constitutional Court, Pavel Rychetský. Other departing Justices were gradually replaced in the second half of 2003 by Dagmar Lastovecká (29 August 2003), Jan Musil (27 November 2003) and Jiří Nykodým (17 December 2003); the following year brought the appointments of Stanislav Balík (26 May 2004) and Michaela Židlická (16 June 2004), and the reappointment of Ivana Janů (16 September 2004). However, the Court’s bench was still not at full strength, a situation that was aggravated by the departures of further Justices: on 9 November 2003 Eva Zarembová’s term of office expired, as did Pavel Varvařovský’s on 29 March of the following year, and two months later (8 May 2004) Jiří Malenovský resigned as a Justice to become a judge of the Court of Justice of the European Communities in Luxembourg. The Constitutional Court attained a full composition only in December of 2005, after Vlasta Formánková was appointed in 5 August 2005 and Vladimír Kůrka was appointed the fifteenth constitutional Justice (15 December 2005).
Vladimír Kůrka’s appointment brought to an end a turbulent period associated with the periodical rotation of Constitutional Court judges. The Constitutional Court was fully staffed and worked under the chairmanship of Pavel Rychetský up to March 20, 2012 when the mandate of Deputy Chair of the Constitutional Court, Eliška Wagnerová, expired. Her departure marked the beginning of a new cycle of rotation of Constitutional Court judges which will culminate in particular in the second half of 2013: the terms of office of a further nine Constitutional Court judges will expire by the end of 2013.