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 popular sovereignty and the principle of separation of powers into the legislative, executive and judicial branches of government. With the prevailing conception of constitution as a social contract, binding on everyone in state, there was no dispute over the fact that each such contract presupposed not only an agreement at its inception, but also a possible conflict. Therefore it was essential for there to be some body authorized to deal with such disputes and decide them definitively.
Alexander Hamilton, one of the framers of the Constitution of the United States of America, is generally considered to be the founder of a concept which assigns to the judiciary the role of a 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 weak in comparison with the other two branches of government, is not capable, through the instruments of power, of usurping authority. Thus it was considered the most competent to serve as an intermediary between the citizen and the legislature. The conviction that a 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 based on similar ideas but with rather different materialization – that of creating specialized constitutional courts which stand apart from the ordinary court systems and which are often entrusted with other powers as well. Nevertheless, the roles and tasks of these courts still demonstrate the generally held view that democracy is unthinkable without a constitutional judiciary. In the words of a 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 justice developed largely after the Second World War, as a natural reaction to the brutal trampling, by Nazi and fascist dictatorships, upon the rule of law and system of democratic values and principles. The constitutional judiciary in the Czech Republic is also based upon the same principles and upon similar historical experience with the injustice of the Nazi and Communist regimes.
The First Czechoslovak Republic
The history of the constitutional judiciary in our country began 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. Three Justices of this seven-member body were appointed by the President of the Republic (including the President of the Court), two Justices were delegated by and from the Supreme Court and two Justices by and from the Supreme Administrative Court. The Justices had a ten-year tenure. The first group of Justices of the Constitutional Court of the Czechoslovak Republic was appointed on 7 November 1921. Among them Karel Baxa (who became the President of the Court), Antonín Bílý (Vice-President), Konstantin Petrovič Mačík, Josef Bohuslav, Václav Vlasák, František Vážný and Bedřich Bobek. After the term of office of the Court‘s first members had expired, new Justices were appointed only in 1938 with Jaroslav Krejčí as the President of the Court. During the Second World War, the Court did not meet, and after the war its work was not resumed. The work and functioning of the First Republic’s Constitutional Court was for a long time a subject of little interest since and it was not considered a topic 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 for each of the two republics. None of these courts was ever established, however, even though the unimplemented constitutional provision 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 the genuinely-operating Constitutional Court of the Czech and Slovak Federal Republic (ČSFR) was established pursuant to a federal Constitutional Act (44 KB, PDF) of 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 the City of Brno. Ernest Valko was appointed President of the Constitutional Court of the ČSFR, and Vlastimil Ševčík became its Vice-President. 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 decision-making, followed the Federal Court‘s legal views in a number of cases.
The First Period of the Constitutional Court of the Czech Republic (1993 – 2003)
After 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 newly established Constitutional Court of the Czech Republic began its work on 15 July 1993. On that day, Václav Havel, the then 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 House of Deputies of the Parliament due to the fact that the Senate did not yet exist. This occurred a mere month after the House 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 the 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, an important time when the new state was still being formed. Therefore, it is appropriate to recall the initial composition of the Constitutional Court of the Czech Republic.
Zdeněk Kessler became the first President of the Constitutional Court of the Czech Republic a carried out his duties until February 2003, when, for health reasons, resigned from his position. Miloš Holeček served as the first Vice-President and following Zdeněk Kessler’s resignation assumed the role of President of the Court for the remainder of his tenure. 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 supplemented in November 1993 with the appointment of Ivana Janů, who became the second Vice-President, and of Eva Zarembová. The fifteenth Justice, Pavel Varvařovský, was named at the end of March 1994.
The Constitutional Court continued to sit in this composition until 8 December 1999, when Iva Brožová resigned from her position. Jiří Malenovský (whose nomination was the first one 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 (ICTY), Ivana Janů resigned on 9 February 2002 from the position of Justice and Vice-President of the Constitutional Court. On 20 March of the same year Eliška Wagnerová was appointed to her seat of Justice and Vice-President. 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 (on 12 February 2003), Miloslav Výborný was named a Constitutional Court Justice on 3 June 2003.
The situation of a full bench did not last long, as on 15 July 2003 the tenures of Justices Vojtěch Cepl, Vladimír Čermák, Vojen Güttler, Pavel Holländer, Vladimír Jurka, Vladimír Klokočka, Vladimír Paul, and Antonín Procházka ended, as did that of Miloš Holeček, who had been appointed the President of the Court after the resignation of Zdeněk Kessler.
The Second Period of the Constitutional Court of the Czech Republic (2003 – 2013)
On 6 August 2003 the President of the Republic appointed Pavel Rychetský to the position of Justice and President of the Constitutional Court. The same day Justices Vojen Güttler and Pavel Holländer were reappointed for another 10-year term (Pavel Holländer simultaneously being given the position of a Vice-President of the Court). Other departing Justices were replaced in the second half of 2003, namely by Dagmar Lastovecká (on 29 August 2003), Jan Musil (on 27 November 2003) and Jiří Nykodým (on 17 December 2003). The following year brought the appointments of Stanislav Balík (on 26 May 2004) and Michaela Židlická (on 16 June 2004), and the reappointment of Ivana Janů (on 16 September 2004). However, the Court’s bench was still not at full strength, and that situation 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. Two months later (on 8 May 2004) Jiří Malenovský resigned to become a Judge of the Court of Justice of the European Union in Luxembourg. The Constitutional Court attained a full composition only in December 2005, after Vlasta Formánková and Vladimír Kůrka were appointed the fourteenth and fifteenth Justices of the Constitutional Court (on 5 August 2005 and 15 December 2005 respectively).
Vladimír Kůrka’s appointment brought an end to a turbulent period associated with the periodical rotation of Constitutional Court Justices. The Constitutional Court was fully staffed and worked under the chairmanship of Pavel Rychetský up to March 20, 2012 when mandate of the Vice-President of the Constitutional Court, Eliška Wagnerová, expired. Her departure marked the beginning of a new cycle of rotation of the Constitutional Court Justices, which culminated by the end of 2013 when the terms of office of further nine Constitutional Court Justices had expired: František Duchoň’s on 6 June 2012, Jiří Mucha’s on 28 January 2013, Miloslav Výborný’s on 3 June 2013, Pavel Holländer’s on 6 August 2013, Vojen Güttler’s on 6 August 2013, Pavel Rychetský’s on 6 August 2013, Dagmar Lastovecká’s on 29 August 2013, Jan Musil’s on 27 November 2013 and Jiří Nykodým’s on 17 December 2013.
The Current Composition of the Constitutional Court
By appointment of the President of the Republic made on 3 May 2013 Milada Tomková, Jaroslav Fenyk and Jan Filip became the first three Justices of the so-called “Third Decade” of the Constitutional Court. (Milada Tomková was simultaneously appointed a Vice-President of the Constitutional Court and Jaroslav Fenyk became a Vice-President on 7 August 2013.) They were followed by Vladimír Sládeček (named on 4 June 2013), Ludvík David and Kateřina Šimáčková (both named on 7 August 2013). Pavel Rychetský became President of the Constitutional Court for the second time on 7 August 2013. Radovan Suchánek was appointed a Justice on 26 November 2013, Jiří Zemánek and Jan Musil (for the second term) on 20 January 2014. In 2014 three of the Justices completed their ten-year mandate, namely Stanislav Balík (on 26 May 2014), Michaela Židlická (on 16 June 2014) and Ivana Janů (on 16 September 2014). They were gradually replaced by Vojtěch Šimíček (named on 12 June 2014), Tomáš Lichovník (named on 19 June 2014) and David Uhlíř (named on 10 December 2014). Jaromír Jirsa was appointed on 7 October 2015, assuming the position vacant since 5 August 2015, when the term of office of Justice Vlasta Formánková ended. The last Justice named by President Václav Klaus was Vladimír Kůrka, who completed his mandate on 15 December 2015. Two days later Josef Fiala became the fifteenth sitting Justice. With his appointment the complete rotation of Constitutional Court Justices was concluded.
On 31 January 2019 Justice Jan Musil, serving his second term in office, resigned from his position. Since then the seat of the fifteenth Justice has been vacant.