Pl. ÚS 25/96

On the Principles of the Electoral System of the Czech
Republic

     The requirement that elections be direct is fulfilled
even if, on the basis of the five-percent clause, a
particular party acquires the right to an additional seat
or seats in excess of what strictly proportional
representation would allow.  Even in this case, however,
seats must be filled by those candidates whom their
political party duly inscribed on the list and who the
voters could expect when voting might possibly gain a seat
if the party, for which the candidates stood, acquires the
right to an additional seat as a result of other parties'
failure to meet the five-percent requirement.  This manner
of allocating seats cannot rightly be denominated as
administrative, as it is not the product of a body's total
discretion and decision, rather the direct result of the
selection made by the voters under certain circumstances,
under the conditions of the said clause, and with
knowledge of the foreseeable results of the legally-
prescribed electoral system.

     As   regards  a  party’s  equal  claim  to  be  given
commensurate  (proportionate)  consideration  during   the
allocation  of  seats,  a  certain  limitation  upon   the
differentiation during seat allocation is inevitable  and,
therefore,  permissible.  While the purpose of voting  is,
undoubtedly, the differentiation of the voter corps,   the
aim of the elections is not a mere expression of political
will by individual voters and the simple acquisition of  a
differentiated  mirror  image  of  the  voters'  political
attitudes.
     
     The principle of differentiation and the principle of
integration  must come into conflict at the stage  of  the
electoral  process  where  seats  are  allocated,  if  the
elections  are  to result in an Assembly of  Deputies  the
composition of which enables to attainment of a  political
majority  capable of forming a government as  well  as  of
engaging  in legislative activities, the tasks  which  the
Constitution  entrusts to the Assembly.   Therefore,  from
the   point   of  view  the  principle  of  representative
democracy,  it  is  acceptable  to  incorporate  into  the
electoral  mechanism  itself certain integrative  stimuli,
where serious reasons for them exist, in particular, under
the  supposition that an unrestricted proportional  system
would  result in the fragmentation of votes among a  large
number   of   political  parties,  the  boundless   “over-
generation” of political parties, thereby threatening  the
parliamentary system’s capacity to function and  to  adopt
measures,  as well as its continuity.  On the other  hand,
it  is  not  permitted, by raising the  threshold  of  the
limitation clause, to jeopardize the democratic  substance
of  elections.   It  must always be  gauged  whether  this
limitation  of  the  equal right to vote  is  the  minimum
measure  necessary in order to muster the majority  needed
for  the  adoption  of decisions and the  formation  of  a
government.  The limitation clause is also subject to  the
principle  of the minimum state interference in proportion
to the prescribed goal.

     Pursuant to § 86 of Act No 182/1993 Sb., an oral
hearing shall always be held in a remedial action before
the Constitutional Court against a decision certifying the
election of a Deputy or Senator.  The principle of
personal participation, as well as of holding a public and
oral hearing in a case, is guaranteed for a proceeding
which, since it is a proceeding on a remedial action, may
not be separated from the contested matter and which is
required to fulfil the constitutional guarantee of Article
96 para. 2 of the Constitution (proceedings before courts
shall be oral and public).  As a consequence thereof, it
can be considered that the requirement of oral and public
proceedings is preserved for this type of court proceeding
in all cases where any of the parties would feel that the
lack thereof in the proceeding before the Supreme Court is
to his detriment.


                   Judgment

of the Plenum of the Constitutional Court of 2 April 1997,
sp. zn. Pl. ÚS 25/96, in the matter of the petition of the
political party, DU, submitted in conjunction with its
constitutional complaint, proposing the annulment of § 49
paras. 2, 3 & 4, a part of § 50 para. 1, and a part of §
51 para. 2 of Act No. 247/1995 Sb., on Elections to the
Parliament of the Czech Republic and on Amendment of and
Supplements to some other Acts, and of the petition
proposing the annulment of a part of § 200n, para. 1 of
Act No. 99/1963 Sb., Civil Procedure Code, as subsequently
amended (the judgment was published as No. 88/1997 Sb.).


I.  STATEMENT

               The petition is rejected on the merits.


II.  REASONING


1.  On 18 July 1996, the political party, DU, filed a
constitutional complaint against the resolution of the
Central Electoral Commission, dated 3 June 1996, whereby
the Commission approved the Record on the Tabulation of
Results of the Election to the Assembly of Deputies of the
Czech Parliament, and against the ruling of the Supreme
Court of the Czech Republic, ref. no. Ovs 5/96/Št-24,
dated 12 June 1996, whereby that court rejected a
complaint against the issuance of a certificate of
election to the Assembly of Deputies, filed by the DU
against the twelve Deputies of the Assembly of Deputies of
the Czech Parliament who acquired seats in the “second
scrutinium”.

     A petition proposing the annulment of parts of §§ 49,
50, and 51 of Act No. 247/1995 Sb., on Elections to the
Parliament of the Czech Republic and on Amendment of and
Supplement to some other Acts (hereinafter the "Electoral
Act"), was filed in conjunction with the constitutional
complaint.  Therefore, the panel of the Constitutional
Court, in its ruling of 9 October 1996, suspended the
proceeding and referred the petition to annul the cited
provisions of the Electoral Act to the Constitutional
Court Plenum for its decision.

     In its proposal for an appropriate judgment from the
Constitutional Court, the DU specified its request as
follows:
     
(a) to annul § 49 (2), (3), and (4) of the Electoral Act;

(b) to annul the following phrase in § 50 (1): ". . .
which have qualified for the first scrutinium, . . . ";

(c) to annul § 51 (2), except for part of the last
sentence, so that this section would read:  The list of
candidates for the second scrutinium shall be drawn up by
the Central Electoral Commission according to preference
votes for individual candidates of this political party or
coalition.

     The petitioning party holds the view that the
contested norms of the Electoral Act contravene Articles
18 and 19 of the Czech Constitution and likewise infringe
the constitutionally guaranteed fundamental rights
enshrined in Article 21 para. 4 and Article 21 para. 1 of
the Charter of Fundamental Rights and Basic Freedoms.
Article 18 incorporates the principle of a universal,
equal, and direct right to vote by secret ballot and on
the basis of proportional representation.  Article 19
guarantees the equal right to stand for election to all
citizens of the Czech Republic who have attained 21 years
of age and have the right to vote.  Pursuant to Article 21
para. 4 of the Charter of Fundamental Rights and Basic
Freedoms, citizens have, under equal conditions, access to
any elective or other public office and, on the basis of
Article 21 para. 1 of the Charter of Fundamental Rights
and Basic Freedoms, citizens have the right to participate
in the administration of public affairs either directly or
through the free election of their representatives.

     The constitutional complaint also includes a petition
to amend the procedure for complaints against the issuance
of certificates of election by deleting the words without
a hearing by resolution in § 200n para. 1 of Act No.
99/1963 Sb., the Civil Procedure Code, as amended, on the
grounds that court decisions without a hearing by
resolution is in contravention of Article 38 para. 2 of
the Charter of Fundamental Rights and Basic Freedoms,
pursuant to which everyone has the right to have her case
considered in public, without unnecessary delay, and in
her presence, as well as to express her view on all the
admitted evidence.

     In the reasoning of its constitutional complaint, the
political party, DU, states that it was not allotted any
seats in the most recent election, even though it received
169,796 votes and, according to the principle of
proportional representation, it should have been
represented by five deputies because each seat filled
corresponded on average to 30,296 validly cast votes.  The
seats that were not allotted to DU were given by
administrative allocation to other candidates, candidates
for whom Czech citizens did not cast their votes in the
elections.  This impinged upon the fundamental right of DU
candidates who, despite fulfilling the constitutionally
prescribed requirements, were nonetheless not accorded
their right to stand for election pursuant to Article 21
of the Charter of Fundamental Rights and Basic Freedoms.
By the same token, this system also resulted in an
impingement upon the voting rights of 169,796 citizens,
DU’s voters, who are not represented in the Assembly of
Deputies by freely elected representatives.

     DU further objects that direct election was de facto
replaced by the administrative appointment of the Central
Electoral Commission, which did not take into account the
election results but only confirmed the wishes of the
chairpersons of several political parties.

     It is the understanding of the DU that the cited
violations of fundamental rights are the result of the
peculiar mechanism of the five-percent limitation clause,
which violates the principle of equal voting right as
guaranteed in Article 18 of the Czech Constitution.  Owing
to this mechanism, a certain number of validly cast votes
of some citizens but not of others was sufficient to
obtain a seat.  Clearly the requirement of equal
conditions for access to elective office have been
violated.  In elections defined in this manner, as
reasoned by the DU, what mattered was not the number of
votes received but the nature of the list of candidates in
relation to which the relevant number of votes was
attained.

     The Constitutional Court first verified whether the
formal prerequisites and the conditions prescribed for
petitions to annul provisions of a statute have been met.
The Court concluded that the petition meets all formal
requirements and fulfils the conditions of § 74 of Act No.
182/1993 Sb., on the Constitutional Court.  Pursuant to
this Act a complainant may submit, together with his
constitutional complaint, a petition to annul a statute or
some other enactment, or individual provisions thereof,
the application of which resulted in the situation which
is the subject of the constitutional complaint, if the
complainant alleges it to be inconsistent with a
constitutional act or an Article 10 Treaty, or with a
statute, if the petition concerns some other enactment.

     The fact that DU did not receive any seat in the
Assembly of Deputies in the most recent election despite
receiving 170,000 votes can undoubtedly be ascribed to the
direct effect of the Electoral Act provision concerning
the five-percent closing clause as a result of which the
candidates from the lists of candidates who, having failed
to receive at least five-percent of the overall vote lose
the claim to act as a representative.  Since neither the
Central Electoral Commission nor the Czech Supreme Court
could act in contravention of the Electoral Act’s five-
percent clause, the DU turned to the Constitutional Court,
pursuant to § 64 para. 1, lit. d) of Act No. 182/1993 Sb.,
with its objection that the relevant provisions of the
Electoral Act are unconstitutional.
     
     After the Constitutional Court found that the
constitutional complaint met the conditions prescribed by
law, it requested a written statement of views from the
Czech Parliament’s Assembly of Deputies.  The Assembly of
Deputies’ statement, dated 5 December 1996 and signed by
its Chairman ing. M. Z., states that the Electoral Act was
approved by the required majority of Deputies, signed by
the appropriate constitutional officials, and duly
promulgated in the conviction that it is in conformity
with the constitutional order of the Czech Republic.  As
the contents of its statement makes clear, the Assembly of
Deputies rejects the DU’s petition with reference, in
particular, to the following arguments:

     First, in the Assembly of Deputies’ opinion, the
Constitution does not specify the form of the proportional
system for elections to the Assembly of Deputies and
provides the legislature with rather wide authority to
designate in the Electoral Act both the number and size of
electoral districts and the electoral method whereby the
votes cast shall be converted into seats.  Considering
this broad authorization, therefore, it is also permitted,
in the Electoral Act, to limit the principle of
proportional representation by a “closing” clause, which
should serve to avoid the presence in the Assembly of
Deputies of many political parties with a very low number
of seats, a situation which could considerably encumber
its functioning and complicate the formation of a stable
Government.  Furthermore, in the Assembly of Deputies’
view, the principle of the equal voting right is not
violated, because that right consists in the fact that in
elections every voter has one vote and that his vote has
the same value as the votes of other voters.  Seats are
allocated to the electoral regions in accordance with the
number of votes cast in each one of them.  Neither does
the closing clause violate citizens’ constitutional right
to participate in the administration of public affairs
through the free election of their representatives.  This
right does not guarantee citizens that the candidates for
whom they voted will, in fact, be elected.  Nor has the
citizens’ right, guaranteed by the Constitution, to have
access under equal conditions to elective office been
breached, since this right does not guarantee every
citizen the right to be elected.  A citizen may be elected
only if she has met all the conditions laid down in the
Electoral Act, one of which is the requirement to gain a
certain number of votes.  According to the opinion of the
Assembly of Deputies, the Electoral Act also does not
violate the principle of the direct voting right, which
means that a citizen elects her representatives directly
and not through another person.  The voter chooses the set
of candidates included in the candidates list, the order
of which is determined by the political parties or
coalitions of them.  In this system, the voter must take
into account the possibility that his vote may be credited
as well to candidates other than those he chose, in the
order known to the voter in advance.  As to the objections
against the procedure of the court while deciding on the
complaint directed against the issuance of certificates of
election as a Deputy or Senator, the Assembly of Deputies
holds the view that the matter at issue is an exception to
the principle that court hearings should be oral and
public, which exception is justified by the need for a
Deputy or Senator duly to perform her duties.  An oral
hearing on such complaints would unduly prolong the whole
process, thus casting doubts on the validity of the
Deputy’s or Senator’s election over an extended period of
time.


2.  It is clear from the DU petition that the
Constitutional Court is called upon primarily to assess
the constitutionality of the “five-percent” clause.  As
evidence the clause is unconstitutional, in the conclusion
of its constitutional complaint, the DU compares the
wording of § 8 of the Constitution of 1920 with Article 18
of the current Constitution.  Both texts are, in fact,
identical, in declaring that elections to the Assembly of
Deputies shall be held according to the principle of
proportional representation, and neither contains any
further specification. If the current Electoral Act
introduces a limitation clause to the proportional system,
in the view of DU, there is no support for it in the
Constitution because, in harmony with the Constitution of
the Czechoslovak First Republic, it enshrines the system
of proportional representation without any limitations.

     Undoubtedly, the electoral system to the First
Republic’s Assembly of Deputies was modeled on a purely
proportional system which in fact did not contain any
significant limitation besides a minor deformation of this
principle due to the need for a second scrutinium; a
system of representation that attains absolutely pure
proportionality is practically impossible since seats are
indivisible.

     Due to the manner in which the constitutional
complaint is formulated, the Constitutional Court must
first raise the issue as to whether the constitutional
formulation of the proportional representation principle,
which does not contain any language limiting this
principle, entails an obligation that the implementing
electoral law not contain any provisions limiting
proportional representation in one way or another.  As for
the 1920 Constitution, one can scarcely deduce from it any
binding consequences for the conception of the Electoral
Act, issued on the basis of the Constitution of 1993.  The
period after the World War I was that of a victorious
crusade for proportional representation across Europe.
Only later did the European states gain experience with
the character and function of proportional representation.
At that time a limitation clause was neither conceived of
in theory nor implemented in practice.  Therefore the 1920
Constitution's formulation on proportional representation
is, from this point of view, neutral and does not per
definicionem contain a priori either a limitation clause
or a prohibition thereof.

     It was only the experience of European parliaments
before World War II, and after it as well, that led to the
search for a system that would limit an excessive
splintering of the political spectrum in Parliament.  It
was the experience not only of the Imperial Assembly of
the Weimar Republic or of the Czechoslovak First Republic,
but also of France, quite decidedly in the Fourth Republic
(1946-1958), which confirmed that excessive
diversification in the Assembly's composition and
unrestricted proportional representation may become a tool
of political de-stabilization and an element destructive
of a constitutional state.

     The theoretical re-evaluation of the proportional
representation principle and a change in the political
practice of contemporary representative democracies
confirm the overwhelming opinion that, provided there are
serious reasons therefor, the introduction of certain
measures limiting the scope of the proportional
representation principle is not in contradiction with the
character of the electoral system, referred to in the
Constitution or the Electoral Act, as one of proportional
representation, if and to the extent that such provisions
do not fundamentally limit proportional representation.
Over time democratic states have introduced the
proportional representation system, furnished with a five-
percent or a three-percent clause, without considering
that they thereby devalued the principle of proportional
representation.

     In this respect, the Constitution of the Czech
Republic does not draw upon the 1920 Constitution; rather
upon the theoretical foundation and institutional solution
of contemporary democratic states which make use of
proportional representation in a more or less limited
form.  Therefore, the mere comparison of the texts of both
constitutions does not testify to the specific rules
relating to proportional representation.  The necessity to
have an identical specification of legal provisions on the
electoral system may not be deduced from two identical
constitutional texts that were applicable in two different
historical eras, with varying conceptions of
representative democracy, and, in  fact, in two different
states.

     The DU further objects that the administrative
allocation of seats to candidates who gained them as a
result of the five-percent clause, to the detriment of
parties which were denied representative office,
constitutes an impingement upon the right to vote and to
stand for election and upon the principle of the right to
elect directly (Article 18 of the Czech Constitution), as
well as a violation of Article 19 para. 3 of the
Constitution, pursuant to which a seat is gained by
election.  The DU draws the conclusion that, in the given
case, seats were not gained by election, rather through
administrative allocation; further, as a consequence of the
limitation clause, a situation arose in which portion of
the electorate was deprived of the right to vote and
potential candidates were deprived of the right to stand
for election.

     According to DU, the requirement of direct election
was violated by the allocation of seats to candidates of
parties which did not gain the number of votes necessary
for them to be elected.  To determine this issue, it is
necessary to elucidate the concept, "direct election".
The principle that elections should be direct is meant to
ensure a direct relation between the votes of the
electorate and the resulting filling of seats, a relation
excluding a further decision-maker that would select a
Deputy at its discretion.  An example of just such a
decision-maker would, for example, be electors chosen by
voters with the intention that an electoral college decide
who should fill the elective function.

    The  principle  of  direct election ensures  that  the
group of persons elected be directly and without mediation
designated by the votes which the voters cast for them  in
the election.  Therefore, the electoral procedure must  be
adjusted  so  that  every vote cast  may  be  ascribed  to
specific  persons.  The principle of direct election  does
not  bar the election of one candidate dependant upon  the
co-election  of  other candidates, that is,  it  does  not
prohibit election on the basis of mass candidate lists  on
which  the  individual parties put forward at one  time  a
number  of persons listed in a certain order.  An election
employing candidate lists meets the requirements of direct
election because, although the candidates for the upcoming
elections  are  selected by another  decision-making  body
(political  party),  this selection occurs  prior  to  the
elections  themselves.   Thus, the decision  of  political
parties on the composition of candidate lists precedes the
elections  and  can be understood as -  sui  generis  -  a
choice  offered  to  the voters.  As far  then  as  actual
voting by the voters is concerned, for an election  to  be
considered  direct,  it is sufficient  if  the  stipulated
order of candidates is known to the voters in advance  and
if  each  vote  cast can be ascribed to specific,  clearly
identifiable  persons, who are standing as  candidates  to
the elected office.  This condition is met even if, on the
basis  of  the  five-percent clause,  a  particular  party
acquires  the  right to an additional  seat  or  seats  in
excess of what strictly proportional representation  would
allow.   Even in this case, however, seats must be  filled
by  those  candidates  whom  their  political  party  duly
inscribed on the list and who the voters could expect when
voting might possibly gain a seat if the party, for  which
the  candidates stood, acquires the right to an additional
seat  as  a result of other parties' failure to  meet  the
five-percent requirement.  This manner of allocating seats
cannot rightly be denominated as administrative, as it  is
not the product of a body's total discretion and decision,
rather  the  direct result of the selection  made  by  the
voters  under certain circumstances, under the  conditions
of  the said clause, and with knowledge of the foreseeable
results of the legally-prescribed electoral system.

    A common denominator of DU's objections, and at the
same time its most serious objection, is the reference to
the violation of Article 21 para. 4 of the Charter of
Fundamental Rights and Basic Freedoms, pursuant to which
citizens have access, under  equal conditions, to any
elective or other public office, and the reference to the
violation of Article 18 para. 1 of the Czech Constitution,
pursuant to which the elections to the Assembly of
Deputies are held on the basis of the principle of
equality of the voting right.

     The principle of the equality of the voting right can
be considered from two basic perspectives:  the first
consists in the comparison of the numerical weight of
individual votes, that is, the weight of individual votes
during the count and in voting results. The equality of
the voting right requires that in the count all the votes
are of equal value, that is, of the same numerical weight
(quantitative equality) and consequence, so that the count
would enable an exact numerical differentiation of the
electorate, that is, an exact numerical "identification"
of support given to individual candidate lists.

     The second perspective on the equality of the voting
right conceives of the equality of votes in light of the
democratic principle, that is, from the perspective of the
claim of votes cast in favor of various candidate lists to
such degree of electoral success as is commensurate with
the numerical values which these candidate lists achieved
in the election.  It is a claim to such evaluation of the
voting results as is based on an equal approach to the
evaluation of the claim to victory of parties putting up
candidates, thus, a claim to a proportionate number of
seats, that is one corresponding to the proportion of
votes cast.

     The Constitutional Court grasps the weightiness of
DU's arguments and is aware that DU's objections are
substantively well-founded in respect of DU’s assertion
that, in the last elections to the Assembly of Deputies,
it did not obtain any seats despite receiving 169,796
valid votes, which number, from the perspective of
proportional representation, gives rise to the claim to 5
seats, since on average the parties represented in the
Assembly of Deputies need only 30,296 votes to obtain one
seat.  This is a true disproportion which is not, in and
of itself, just and is inconsistent with the exact
equality of the voting right.

     As this disproportion results from the five-percent
limitation clause, affecting small political parties, the
question remains whether and to what extent the five-
percent clause is constitutionally authorized, or to what
extent it is compatible with the general principle of the
equality of voting rights.

     It is a more complicated task to judge this issue
than it would be to judge the first aspect of equality of
voting rights, where it is unequivocally the case that,
when counting votes and ascertaining the numerical
election results, the entirely strict equality of votes
applies and that any differentiation in numerical
evaluation of votes cast is impermissible and
unconstitutional.

     As regards a party’s equal claim to be given
commensurate (proportionate) consideration during the
allocation of seats, a certain limitation upon the
differentiation during seat allocation is inevitable and,
therefore, permissible.  Such limitation results, above
all, from the practical impossibility of appropriately
expressing an exact proportion owing to, for instance, the
fact that the technical aspects of electoral
representation do not allow for an "appropriate" split of
seats.

     Nevertheless, there may exist other significant
grounds for placing restrictions upon equality which are
found in the purpose and function of elections in a
democratic society.  While the purpose of voting is,
undoubtedly, to differentiate the electorate,  the
objective of elections is not, however, to obtain a mere
expression of political preference by individual voters
and a mere differentiated mirror image of opinion streams
and the voters' political positions.  Since it is the
people who exercise state power, mainly via parliament,
and since the exercise of state power presupposes the
capacity to adopt decisions, elections and the electoral
system must have regard to the capacity to adopt such
decisions on the basis of the majority's will.  To base
the composition of the Assembly of Deputies on a strict
proportional image of voting results might give rise to a
political representation fragmented into a large number of
small groups promoting diverse interests, which would make
the formation of a majority much more difficult if not
entirely impossible.

     The principle of differentiation and the principle of
integration must come into conflict at the stage of the
electoral process where seats are allocated, since the
elections are meant to result in an Assembly of Deputies
the composition of which enables to attainment of a
political majority capable of forming a government as well
as of engaging in legislative activities, the tasks which
the Constitution entrusts to the Assembly.

     Therefore, from the perspective of the principle of
representative democracy, it is acceptable to incorporate
into the electoral mechanism itself certain integrative
stimuli, where serious reasons for them exist, in
particular, under the supposition that an unrestricted
proportional system would result in the fragmentation of
votes among a large number of political parties, the
boundless “over-generation” of political parties, thereby
threatening the parliamentary system’s capacity to
function and to adopt measures, as well as its continuity.

     After the bad experiences with the excessive
fragmentation of parliamentary composition, the European
states, when applying proportional representation, adopted
as well integrative stimuli, in particular, the limitation
clause, which in most cases is five percent.  It is
generally recognized that the legislature has the right to
make rules for the differentiation of the claim of votes
to successful representation in a proportional election
and, in this way, to treat political parties in a
disparate manner, if such is absolutely necessary to
ensure integration character of elections in the formation
of the people’s political will, in the interest of the
unity of the entire electoral system and so as to ensure
the state's political objectives pursued in the
parliamentary elections.  The existence of the limitation
clause must, in any case, be made conditional on there
being serious grounds therefor, while an increase in the
threshold of the limitation clause is justifiable only if
there are especially momentous reasons therefor.  It must
be noted that any increase in the threshold of the
limitation clause cannot be unlimited, so that, for
example, a ten-percent clause could already be considered
such an intrusion upon the proportional system as to
threaten its democratic substance.  Therefore, it is
always necessary to gauge whether such limitation of the
equality of the voting right is the minimum measure
necessary to ensure such a degree of integration of
political representation as is necessary for the
legislative body to form a majority (or majorities)
required for the adoption of decisions and formation of a
government which enjoys the confidence of parliament.
Consequently, the principle of minimal intervention of the
state in proportion to the prescribed objective applies to
the limitation clause too.  For this reason, even the need
for electoral limitation must be construed strictly.

     From this perspective, no fixed value may be assigned
to the threshold of the limitation clause, rather it is
relative and always must depend on the specific proportion
of forces in the country and on the structure in which
they are differentiated.  In Germany, for instance, some
authors have asserted that, due to stability which the
country has reached over time, the right of smaller,
especially new, parties to obtain seats in the Assembly is
threatened by the clause, to the degree that it has
already lost its indispensable character.  In contrast to
that, the proponents of the clause, who are in the
majority, object that the danger of  fragmentation is
still very real because the current stabilized system is,
in the final analysis, also a result of the clause and
that it is not possible to foresee the consequences that
might come about were the threshold of the limitation
clause to be lowered from five percent to, for example,
three percent.

     A comparison of the limitation clause with the
majority system speaks in favor of the limitation clause.
Constitutional courts unconditionally conceive of the
majority electoral system as democratic, despite the fact
that the political views of a large percent of the voters
are not represented in the parliament at all or not
represented in proportion to the strength of those voters.
In reality, the very nature of the majority electoral
system gives rise to a limitation clause of a sort which
is far higher than is usual in the proportional electoral
system.  It follows from this that solely the votes cast
for the winning candidate represent success whereas the
other votes "fall out of the picture".  In the final
effect of the elections, this significant differentiation
in the composition of the elected ensemble is more or less
balanced out by the diversification of results in
individual districts such that the inequalities in
particular districts are balanced out by the reverse
inequalities in other districts.  While in the majority
electoral system the equality of votes is fully maintained
as far as concerns their numerical weight, however, the
claim of individual votes to success is sharply
diversified: votes given in favor of a successful
candidate concentrate a 100% share in the success, other
votes concentrate no share.
     
     The following conclusion can be drawn from what was
stated above: the five-percent limitation clause may not a
limine be rejected as an unconstitutional limitation of
the equal right to vote. Since in judging this issue the
principle of diversification comes into conflict with the
principle of integration, what remains to be considered is
whether in the case of the Czech Republic the five-percent
clause is the minimal measure which is necessary for the
formation of an Assembly of Deputies which is capable of
debating, adopting decisions, and fulfilling its legal
functions, as well as of forming a majority, from which
the government can draw political support, or whether the
extent of intrusion into the principle of proportional
representation is so high as to jeopardize the democratic
nature of the elections.

     As is well known, the political spectrum of the Czech
Republic is the result of a relatively short development
and is not as yet quite clearly structured or visibly
stabilized.  A characteristic feature of all Czech
parliamentary elections so far, but also of the first
election to the Assembly of Deputies of the Czech
Parliament in 1996, has been the marked splintering of
political forces into a large number of political parties
competing to obtain seats in the Assembly.  Even though
the number of the parties and movements which competed in
the most recent election to the Assembly of Deputies fell
to 20, the election results demonstrate that, were
proportional representation to be respected in full, at
least three other political parties would have had to join
the three presently-governing coalition parties in order
to form a governing coalition representing even a frail
majority.  Nevertheless, a coalition with a different
composition and hue would not be faced with lessor
problems.  Experience with similar coalitions, in
particular, in the fourth French Republic justify fears
and skepticism.  Therefore, if a certain distortion of
proportionality in political representation, resulting
from the five-percent clause, does not in its overall
effect constitute a disproportion which would justify
doubts about the democratic nature of the political
representation, the Constitutional Court has no choice but
to reject DU’s objections.

   In addition to the limitation clause, DU also proposed
the annulment of the words "without a hearing by
resolution" in § 200n (1) of Act No. 99/1963 Sb., so as to
read:  "The court shall decide within ten days on a
complaint against the issuance of a certificate of election
as a Deputy or Senator. "
   
   The Constitutional Court carefully examined the
arguments in favor of and against annulling the words
"without a hearing by resolution".  Undoubtedly, in court
decisions the principle that everyone has the right to have
her case considered in public and in her presence, as well
as and to express her views on all the admitted evidence
(Article 38 para. 2 of the Charter of Fundamental  Rights
and Basic Freedoms) is of the utmost importance.  The
significance of this principle is undeniable despite the
fact that it applies cum grano salis - with a grain of
salt, because Article 96 para. 2 of the Czech Constitution
provides that exceptions to this principle may be
introduced by statute.
   
   The Constitutional Court also takes as its assumption
that a Deputy or Senator can consider the proceedings on
the complaint against the issuance of a certificate of
election as "her case" in the sense meant by Article 38 of
the Charter of Fundamental Rights and Basic Freedoms.  In
this respect, the Court refers to the reasoning in the
Constitutional Court's judgment dated 10 January 1996 and
published in the Collection of Laws as No. 31/1996, whereby
the second paragraph of § 200l of the Civil Procedure Code
was annulled.  The Court's experience with complaints of
this kind has so far revealed that such complaints, to a
large extent, relate to the personal behavior, actions, or
characteristics of the elected persons rather than with the
lack of order in the organization of the elections.  This
fact is also corroborated by the right of persons whose
election is contested to express their views on the
objections in oral proceedings.
   
   On the other hand, the Constitutional Court also
considered the arguments for retaining the current
provisions of the Civil Procedure Code.  The Constitutional
Court's decision concerning § 200l of the Civil Procedure
Code itself contains elements which testify against
deleting the words "without a hearing by resolution" from §
200n of the Civil Procedure Code.  Thus, the Constitutional
Court annulled only paragraph 2 of § 200l, which stipulated
that only the petitioner, that is the person who filed the
complaint, is a party to the proceedings.  The Court
referred to the provision of § 200n of the Civil Procedure
Code, pursuant to which in similar proceedings the person
whose election is contested (the Deputy or Senator) is also
a party to the proceeding.  The current provisions of §
200l authorizes a regional court to decide on a complaint
without an oral hearing and without permitting an appeal
against it.
   
   From the perspective of constitutional law, it is a
completely different matter in the case of § 200n of the
Civil Procedure Code.  The Constitution introduced the
Constitutional Court into the procedure on the
certification of a Deputy or a Senator's election and
understands its role in matters under Article 87 para. 1,
lit. e) - as well as § 85 of the Act on the Constitutional
Court – is conceived of as a decision in a remedial action
against a decision on the certification of the election of
a Deputy or Senator.  A remedial action may be filed by the
Deputy or Senator, or the party for which he stood as a
candidate in the elections, against a decision  that he was
not validly elected, and further by a person whose
electoral complaint pursuant to the Electoral Act was
granted, against the decision of the relevant chamber of
the Parliament or one of its bodies certifying the validity
of the Deputy or Senator's election.  From the perspective
of the Constitution, a Supreme Court decision on a
complaint against the issuance of a certificate of election
as a Deputy can also be considered a matter which relates
to the certification of a Deputy's election. According to §
86 of Act No 182/1993 Sb., on the Constitutional Court, an
oral hearing shall always be held in such remedial actions.
The principle of personal participation, as well as of
holding a public and oral hearing in a case, is guaranteed
for proceedings before the Constitutional Court which,
since it is a proceeding on a remedial action, may not be
separated from the contested matter and which is required
to fulfil the constitutional guarantee of Article 96 para.
2 of the Constitution (proceedings before courts shall be
oral and public).  As a consequence thereof, it can be
considered that the requirement of oral and public
proceedings is preserved for this type of court proceeding
in all cases where any of the parties would feel that the
lack thereof in the proceeding before the Supreme Court is
to his detriment.
   
   If the requirement of oral, public hearings already
before the Supreme Court had been introduced, it can be
expected that the proceedings would be substantially slowed
down.  The DU petition would leave the Supreme Court a ten
day period in which to decide on a complaint.  It appears
to the Constitutional Court that, should it adopt this
proposed solution, the time-limit could not be adhered to.
The DU probably did not take into consideration the time
required for individual tasks related to an oral hearing.
The fact that the said time-limit cannot be adhered to
would introduce into the proceedings itself an element of
legal uncertainty, in the awareness that ultra vires nemo
posse tenetur [Translator’s note: what is beyond
possibility cannot exist].  In addition, it can be
presumed, with a probability bordering on certainty, that
Deputies and Senators, against the election of whom a
complaint was successfully lodged before the Supreme Court,
would undoubtedly bring their case to the Constitutional
Court.  All this justifies the conclusion that the whole
proceeding would become disproportionately drawn out.  It
would give rise to some sort of a "three-instance"
procedure:  certification of election by the Assembly of
Deputies, proceedings before the Supreme Court, including a
full oral hearing, and similarly even proceedings before
the Constitutional Court.  In comparable European states
with a parliamentary system and a constitutional court
(Germany and Austria), the certification of election is a
matter for the assembly, and a complaint is admissible to
one court only, to wit the constitutional court.  In such
cases in Germany, the Constitutional Court does not even
have to hold an oral hearing in every case.
   
After having compared the arguments for and against, the
current statutory provisions appear to the Constitutional Court
to be more suitable.  Since the Constitutional Court has found
that the provisions contravene neither Article 96 of the
Constitution, nor Article 38 para. 2 of the Charter of
Fundamental Rights and Basic Freedoms, nor the European
Convention for the Protection of Human Rights and Fundamental
Freedoms (Article 6 para. 1), it does not see any grounds for
changing § 200n (1) of Act No. 99/1963 Sb., as amended.
Therefore, the Constitutional Court has rejected on the merits
this petition from DU as well.