2009/09/10 - PL. ÚS 27/09: CONSTITUTIONAL ACT ON
SHORTENING THE TERM OF OFFICE OF THE CHAMBER OF
DEPUTIES
HEADNOTES
1) In its case law, the Constitutional Court emphatically made clear the need to
protect the material focus of the constitutional order, and, partly abstractly
and partly casuistically, indicated its structure, as well as the fact that its
consequences apply not only to the democratic legislature, but to the
Constitutional Court itself.
Insofar as the Constitutional Court articulates the need to include the category
of constitutional acts within the term “statute” in Art. 87 par. 1 let. a) of the
Constitution, in terms of reviewing them for consistency with Art. 9 par. 2 of
the Constitution, with direct derogative consequences, it does so in connection
to its case law, beginning with the key judgment file no. Pl. ÚS 19/93, and does
so in accordance with the values and principles that guide constitutional
systems in democratic countries. Protection of the material core of the
Constitution, i.e. the imperative that the essential requirements for a
democratic state governed by the rule of law, under Art. 9 par. 2 of the
Constitution, are non-changeable, is not a mere slogan or proclamation, but a
constitutional provision with normative consequences. In No. 78 of The
Federalist Papers, Alexander Hamilton wrote that “the courts were designed to
be an intermediate body between the people and the legislature, in order,
among other things, to keep the latter within the limits assigned to their
authority.” Without the projection of Art. 9 par. 2 of the Constitution into
interpretation of Art. 87 par. 1 let. a) of the Constitution, the non-changeability
of the essential requirements for a democratic state governed by the rule of
law would lose its normative nature and remain merely a political, or moral
challenge.
2) An ad hoc constitutional act (for an individual instance) is not a supplement
or amendment to the Constitution. In content, a constitutional act for an
individual instance can take two forms – either it involves time-limited
suspension of the Constitution, or a substantive, or personal, exception from
the general validity of the constitutional framework.
A supplement to the constitution can be characterized by the fact that the
supplemented constitutional provision does not change, and the supplemented
and supplementing provisions are not inconsistent. An amendment to the
constitution means that a particular constitutional provision is annulled or
partly annulled and perhaps (not necessarily) a new provision is established. In
a breach, the constitution is not annulled, but the breached (in this case,
suspended) provision and the breaching (in this case, suspending) provision are
inconsistent.
Constitutional Act no. 195/2009 Coll. is a constitutional act only in form, but
not in substance. In substance it is an individual legal act affecting not a
generally defined circle of addressees and situations, but a specifically
designated subject (the Chamber of Deputies of the Parliament of the Czech
Republic elected in 2006) and a specific situation (ending its term of office on
the day of elections, which are to be held by 15 October 2009, and shortening
deadlines under the Act on Elections to the Parliament of the Czech Republic
and under the Administrative Procedure Code, only for this instance). This fact
is expressly stated not only in Art. 1 of this constitutional Act, but also in Art. 2
(which is a direct amendment to statutes implemented by the constitutional
act!), which contains the express formulation concerning the shortening of
deadlines, “for this instance.”
The original constitutional framers, in Art. 9 par. 2 of the Constitution, placed
the democratic principle and the principle of a law-based state on the same
level among the principles that fundamentally identify the constitutional system
of the Czech Republic. As the Constitutional Court’s case law indicates,
violating the principle of generality of laws falls within the realm of
impermissible interference with a law-based state. Possible exceptions are
either cases of accepting application of law in the form of a statute (e.g. an act
on the state budget), or cases of express authorization to issue an ad hoc
statute (e.g. constitutional acts issued under Art. 11 and Art. 100 par. 3 of the
Constitution) or ad hoc statutes whose issuance is supported by exceptional
reasons that meet the condition of the proportionality test (e.g. restitution acts
containing lists).
In the absence of a constitutional authorization to issue constitutional acts ad
hoc, the constitutional conformity of a constitutional act adopted inconsistently
with the constitutionally defined scope of the competence of Parliament could
be established only by protection of the material core under Art. 9 par. 2 of the
Constitution. In other words, protection of the democratic state governed by
the rule of law by adopting an ad hoc constitutional act could be accepted in
absolutely exceptional circumstances (such as a state of war or natural
catastrophe that are not addressed by either the Constitution or by
constitutional Act no. 110/1998 Coll., on the Security of the Czech Republic, as
amended by constitutional Act no. 300/2000 Coll.), but that procedure would
have to meet the requirements that follow from the principle of
proportionality.
3) In addition to the principle that it is impermissible to hold elections in time
periods that exceed the term of office, Art. 21 par. 2 of the Charter also
enshrines the principle of regular terms of office (regular exercise of voting
rights). The ad hoc constitutional act on shortening the term of office is
inconsistent with the constitutional imperative of regular election periods, only
for one instance, not generally for the future; it sets an exception to Art. 16
par. 1 of the Constitution.
4) There is a fundamental difference in the framework shortening the term of
office of the Czech National council by constitutional Act no. 64/1990 Coll., on
the one hand, and shortening the term of office of the Chamber of Deputies of
the Parliament of the Czech Republic by constitutional Acts no. 69/1998 Coll.
and no. 195/2009 Coll., on the other hand. The first of the three cited
constitutional acts was adopted before elections were held and a representative
assembly constituted, and the two others were adopted afterwards. Thus, they
retroactively set the conditions for exercising voting rights (active and passive),
The presumptions on the basis of which the voters decided in the elections to
the Chamber of Deputies were changed with retroactive effect.
The Constitutional Court considers such circumvention of fundamental
constitutional principles to be incompatible with the principle of the prohibition
on retroactivity, in connection with the principles of protecting justified
confidence by the citizens in the law and the right to vote freely, i.e. – among
other things – the right to vote with knowledge of the conditions for creating
the democratic public authorities resulting from the elections, including
knowledge of their term of office. The Constitutional Court considers violation
of these constitutional principles arising from Art. 1 par. 1 of the Constitution
to be interference with the essential requirements for a democratic state
governed by the rule of law, enshrined in Art. 9 par. 2 of the Constitution.
CZECH REPUBLIC
CONSTITUTIONAL COURT
JUDGMENT
IN THE NAME OF THE REPUBLIC
On 10 September 2009, the plenum of the Constitutional Court, consisting of
Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel
Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,
Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and Michaela
Židlická, ruled in the matter of a petition from Miloš Melčák, residing at Obeciny
IX/3617, 760 01 Zlín, represented by Jan Kalvoda, attorney, with his registered
office at Bělohorská 35,160 00 Prague 6, seeking the annulment of constitutional
Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the Chamber of
Deputies, filed under § 74 of Act no. 182/1993 Coll., on the Constitutional Court, as
amended by later regulations, as follows:
I. Constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office
of the Chamber of Deputies, is annulled as of 10 September 2009.
II. The Decision of the President of the Republic no. 207/2009 Coll., on Calling
Elections to the Chamber of Deputies of the Parliament of the Czech Republic,
countersigned by the Prime Minister, ceases to have legal effect simultaneously
with Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the
Chamber of Deputies.
REASONING
I.
Description of the Matter and Recapitulation of the Petition
In his constitutional complaint, delivered to the Constitutional Court on 26 August
2009, the complainant seeks the annulment of the Decision of the President of the
Republic no. 207/2009 Coll., on Calling Elections to the Chamber of Deputies of the
Czech Republic, countersigned by the Prime Minister. At the same time, under § 74
of Act no. 182/1993 Coll., on the Constitutional Court, as amended by later
regulations, together with the constitutional complaint, he is filing a petition
seeking the annulment of constitutional Act no. 195/2009 Coll., on shortening the
Fifth Term of Office of the Chamber of Deputies. He feels injured by the cited
decision of the president, in particular as regards his fundamental right arising
from Art. 21 par. 4 of the Charter of Fundamental Rights and Freedoms (the
“Charter”), which, according to the Constitutional Court’s case law (file no. Pl. ÚS
73/04) also gives rise to the right to uninterrupted exercise of a public office. He
believes this fundamental right has been violated, not by the unconstitutional
manner in which the legal order was applied and interpreted in the Decision of the
President of the Republic contested by the constitutional complaint, but by its
legal basis, constitutional Act no. 195/2009 Coll., which he considers to be
inconsistent with Art. 21 par. 2 and 4, Art. 22 of the Charter and with Art. 9 par. 2,
Art. 16 par. 1 and Art. 17 par. 1 of the Constitution.
By resolution of 1 September 2009 ref. no. Pl. ÚS 24/09-16, the Constitutional
Court postponed the enforceability of Decision of the President of the Republic no.
207/2009 Coll., on Calling Elections to the Chamber of Deputies of the Parliament
of the Czech Republic. Subsequently, by resolution of 2 September 2009 ref. no. Pl.
ÚS 24/09-20 proceedings in the matter of the constitutional complaint from the
complainant Miloš Melčák, conducted as file no. Pl. ÚS 24/09, were interrupted and
the petition to annul constitutional Act no. 195/2009 Coll., on Shortening the Fifth
Term of Office of the Chamber of Deputies, was passed on for a decision under Art.
87 par. 1 let. a) of the Constitution.
In the reasoning of his petition, the complainant states that constitutional Act no.
195/2009 Coll. is a constitutional act only formally, but substantively it
contravenes the constitutional order, and in fact suspends the constitutional order
– ad hoc, for one term of office, suspends its effect for a period arbitrarily chosen
by the momentary qualified majority of deputies and senators, due to which, in
this sense it is not an act that supplements or amends the Constitution (under Art.
9 par. 1 of the Constitution). He considers the contested constitutional act to be
inconsistent with the constitutional order in the sense that it changes an essential
requirement for a democratic state governed by the rule of law, which, under Art.
9 par. 2 of the Constitution cannot be changed. That requirement is that the free
competition among political forces be subject to the same rules, and, especially,
to rules set in advance.
The petitioner then presents the following arguments in support of the
Constitutional Court’s competence to review the constitutionality of the
constitutional act in question: He considers untenable a literal interpretation of
Art. 87 par. 1 let. a) of the Constitution, which would lead to absurd consequences
– to the ability to use a constitutional act to codify anything, outside the scope of
constitutional review. From that point of view he does not find a relevant
difference between shortening the term of office of the president or parliamentary
deputies and, for example, extending their mandates for life, again, ad hoc, only
of deputies elected to this term of office; even Art. 21 par. 1 of the Charter, would
not be an obstacle to this “logic,” because any later constitutional act has the
same legal force as the Charter. According to the petitioner, formalistic insistence
on classifying the contested act as a constitutional act, only on the basis that it
was passed by a qualified majority is inconsistent with a substantive conception of
a state governed by the rule of law, with the fact that the Constitution of the
Czech Republic is not neutral in terms of values; it is founded on the inalienability
of fundamental human and civil rights and also on the presumption that the
“fundamental requirements for a democratic state governed by the rule of law”
cannot be changed. In this sense, the petitioner considers as part of the
constitutional order not only a statute passed by a qualified majority of
Parliament, but one that simultaneously “not opposing the – unchangeable –
essential requirements for a democratic state governed by the rule of law.” He
states his belief that the contested “constitutional” act does not meet these
conditions, and is therefore not part of the constitutional order. In his opinion, this
conclusion also follows from the statute’s departure from the framework of Art. 9
par. 1 of the Constitution, because the contested “constitutional” act does not
amend or supplement the Constitution, but suspends a certain provision in it (on
the length of the term of office) for a particular term of office, and does so
retroactively. In other words, it replaces the suspended constitutional framework,
for this term of office only, with an ad hoc rule based on an agreement between
certain political forces. He is of the opinion that removing or postponing the
enforceability of a particular constitutional provision for a certain time is
appropriate for exceptional situations in the history of the state, such as threats to
its integrity, a state of war, or natural disasters; however, even such procedures
cannot be used arbitrarily, but only on the basis of constitutional authorization. He
states his belief that, however, the unwillingness of the majority of political forces
to comply with constitutional procedures in establishing a new government during a
particular term of office, is not such a situation.
The petition goes on to analyze in detail the significance and meaning of Art. 9 par.
2 of the Constitution, in connection with the guarantees of democratic, free
competition among political forces. It refers to the Constitutional Court’s legal
opinion stated in judgment file no. Pl. ÚS 53/2000 that “Free competition among
political forces is based above all on the fact that all political subjects are
governed by the same rules specified, defined in advance, which are based on
these basic principles. … At the same time, its decision-making may not be
arbitrary, but must respect the constitutional principles that are part of the basic
principles of the constitutionally guaranteed political system. If the risk of
arbitrariness were not ruled out, and even mere circumvention of these regulations
were possible, this would undoubtedly always lead to violation of constitutional
order, its purpose and meaning, and this would force the intervention of the
Constitutional Court, which is, under Art. 83 and 87, the judicial organ for
protection of constitutionality and lawfulness.” The petitioner considers it a
defining element of a legal norm, including a constitution, essential to the
understanding of a substantive law-based state, that it is binding for the future, in
the same manner, on all who find themselves in a situation that arises in the
future. In his opinion, the idea that statutorily provided rules could be suspended
in a self-serving manner, and only for a particular instance, would mean accepting
arbitrariness and violating the principle of the rule of law. At this point he also
refers to the Constitutional Court’s legal opinion in judgment file no. Pl. ÚS 24/04.
According to the petitioner, the contested constitutional act violated the
constitutional prohibition on retroactivity, by retroactively adjusting a term of
office while it was running – the term of office began as a four-year term (Art. 16
par. 1 of the Constitution) and was retroactively adjusted (shortened). The
petitioner considers this retroactive effect to be true retroactivity, which is also
inconsistent with the principle of legitimate expectation, and he points to the fact
that the exceptional acceptance of true retroactivity in public law in the period
after World War II was limited to issues of dealing with the totalitarian past, an
example of which is the act on illegality of the communist regime or restitution
legislation. In this matter, however, similar reasons that would justify true
retroactivity do not exist.
The petitioner emphasizes the exceptional significance of the relationship between
elections and the functioning of a democratic law-based state; he considers a predefined
term of office to be important for applying the principles of the
sovereignty of the people, equal opportunity, open political competition, the right
of a deputy to uninterrupted exercise of a mandate during a pre-determined
period, and especially for ensuring protection of the rights of a parliamentary
minority. In his opinion, a possible breach of these principles can be allowed only
on the basis of the Constitution, under conditions generally provided by the
Constitution (those being the conditions of dissolving the Chamber of Deputies). In
this regard he refers to a number of decisions in which the Constitutional Court
spoke on protection of the cited principles (file no. II. ÚS 275/96, Pl. ÚS 24/04, Pl.
ÚS 73/04). Insofar as the Constitutional Court, in judgment file no. Pl. ÚS 73/04,
derives the limits of the judicial branch’s ability to annul elections due to election
offenses, on the grounds that it is impermissible to change the will of the sovereign
by a decision by the judicial branch, then, according to the petitioner, it is all the
less permissible for the legislative branch.
The petitioner rejects the argument that the constitution can codify everything
that receives a constitutional majority, regardless of the provision that the
essential requirements for a democratic state governed by the rule of law cannot
be changed. He states his belief that these requirements must also include the
predictability of the law, which comes from it being general, as well as the opinion
that the Constitutional Court already stated this thesis in judgment file no. Pl. ÚS
77/06: “In a substantive law-based state, a statute in the formal sense cannot be
understood as a mere repository of a wide variety of changes made throughout the
legal order. On the contrary, the substantive conception of the law-based state
requires that a statute be, both in terms of form and substance, a predictable,
consistent source of law.” He also points out, again with reference to the
Constitutional Court’s case law (file no. Pl. ÚS 73/04) – the importance of fair
conditions for political competition. Here he stresses the difference between
shortening the term of office of the Chamber of Deputies for one instance, and the
general rule for dissolving it. He is aware that in the world’s democratic countries
there are various constitutional models for dissolving parliaments and calling early
elections. In his opinion, in terms of Art. 9 par. 2 of the Constitution, it is possible
to enshrine such a model through a general amendment to the Constitution, but it
is not possible to rely on the democratic character of a state, proceed formally
within the framework of its constitution, and simultaneously suspend the essential,
substantive requirements that guarantee its democratic and law-based character.
The petitioner analyzes the purpose of the mechanism for dissolving the Chamber
of Deputies, tied to a vote of no confidence in the government (or a refusal to give
a vote of confidence), as it is enshrined in the Constitution; he states that this
mechanism makes the fall of the government conditional on a seriously intended
decision by the opposition to form a government, that it aims to rule out
demonstrative, non-serious attempts to destabilize the government, that it lays a
precisely weighed responsibility on the participants in political competition.
In his opinion, circumventing this procedure by shortening the term of office of the
Chamber of Deputies makes political competition unequal, and preserves the
existing circle of competitors, because new political parties or movements will
necessarily find themselves under time pressure, if they were aiming their
involvement in the contest toward the regular date of elections. He emphasizes
that, in terms of political competition, the time when elections to the
representative body are held is not politically neutral – in the case of early
elections, the only legitimate date is one that arises from procedures described in
advance by the Constitution. Therefore, he considers that the contested
constitutional act has violated the principle of equal opportunity in political
competition (which he supports by reference to the Constitutional Court’s legal
opinion stated in judgment file no. Pl. ÚS 53/2000). He expressly states in this
regard: “The modus operandi of constitutional offenders lies in the fact that the
Constitution, or its essential requirements guaranteeing the rules of political
competition, are not annulled for a particular time, but are ignored, suspended.
Yet, nothing prevents the momentary constitutional majority from amending or
supplementing the Constitution – it can codify any easy manner of calling early
elections for the next time. A new constitutional rule would be established, to
replace the existing one, the next time, and it would mean free (equal and open)
competition between political forces in the future, it would conform to the
constitutional order, i.e. the essential requirements for a democratic state
governed by the rule of law. However, the majority does not do that; for the next
time it again returns to the rigid procedure of calling new elections; until such time
as the momentary majority again decides that it is politically suitable – for it – to
ignore the constitutional procedure again and get out of political competition
through an ad hoc statute.”
From a historic viewpoint the petitioner points out that the contested
constitutional law is identical in content with the one adopted in 1998, and the
political circumstances are also analogous. He considers the argument of
“constitutional habit” established by the procedure in 1998 to be unacceptable,
and outlines the political-cultural consequences of breaching constitutional
principles.
In his opinion, constitutional Act no. 195/2009 Coll., because it changes the rules
of free, equal and open political competition, which is among the essential
requirements of a democratic, law-based state, by suspending the Constitution for
one instance, retroactively and in a manner that limits the sovereignty of the
people, is thus inconsistent with Art. 21 par. 2 and 4, Art. 22 of the Charter a Art.
9 par. 2, Art. 16 par. 1 and Art. 17 par. 1 of the Constitution. For all these reasons,
thus presented, he proposes that constitutional Act no. 195/2009 Coll., on
Shortening the Fifth Term of Office of the Chamber of Deputies, be annulled.
II.
Recapitulation of the Essential Parts of Responses from the Parties to the
Proceeding
Under § 42 par. 4 and § 69 of Act no. 182/1993 Coll., on the Constitutional Court,
as amended by later regulations, the Constitutional Court sent the petition to the
Chamber of Deputies. In his response, delivered to the Constitutional Court on 4
September 2009, the Chairman of the Chamber of Deputies of the Parliament of
the Czech Republic, Ing. Miloslav Vlček, states that in debate on the bill of the
adjudicated constitutional act the question of adopting a special constitutional act
was discussed in detail, alternatives for resolving the current political situations
were raised, the reservations that certain experts and politicians had to the
proposed practical solution were raised and discussed, and the possibility of a
general constitutional amendment to the rules for dissolving the Chamber of
Deputies was considered. The need to respect the essential requirements for a
democratic, law-based state was emphasized.
With reference to the Constitutional Court’s opinion on the function of a party’s
response in a proceeding on review of norms (file no. Pl. ÚS 24/07), over and above
the routine response from the chamber, the Chairman of the Chamber of Deputies
states that constitutional Act no. 195/2009 Coll. was adopted on the basis of wide
political consensus, both chambers of Parliament consented to it in a
constitutionally prescribed manner, it was signed by the appropriate constitutional
authorities, and duly promulgated. In his opinion, the content of the cited
constitutional act does not conflict with the substantive requirements of the
democratic legal order, because the shortening of the term of office of the
Chamber of Deputies is tied to holding new elections to the Chamber of Deputies.
Shortening the term of office of the Chamber of Deputies does not violate the
principle of the sovereignty of the people; on the contrary it leads to the need for
members of the legislative assembly to give an accounting to the citizens earlier,
which does not conflict with the requirements of democracy or of a law-based
state. The present constitutional act changes nothing about the fact that the
legislative assembly is constituted on the basis of duly held elections, and regularly
answers to the citizens, in elections, for its activities.
The response also contains the personal opinion of the Chairman of the Chamber of
Deputies, that the Constitutional Court, under the valid wording of the
Constitution, is not competent to review the “constitutionality” of constitutional
acts and to annul constitutional acts. If the Constitutional Court adopted such
authority, it would set itself above the constitutional framers. It is the obligation of
the constitutional framers to ensure that adopted constitutional acts do not
deviate from what is, under Art. 9 par. 2 of the Constitution, compatible with
democracy and with a state governed by the rule of law.
Under § 42 par. 4 and § 69 of Act no. 182/1993 Coll., as amended by later
regulations, the Constitutional Court also sent the petition to the Senate of the
Parliament of the Czech Republic. In the introduction of the Senate’s response,
delivered to the Constitutional Court on 4 September 2009, its chairman, MUDr.
Přemysl Sobotka, recapitulates the course of debate of the constitutional act in the
Senate, and in particular recapitulates the arguments for and against adopting it.
Among the former, he cites the opinion that although the one-time constitutional
act displays some non-systematic features, but that defect is not of such intensity
that adopting the act could endanger or violate the principles of a democratic lawbased
state. A one-time shortening of the term of office of the Chamber of
Deputies is not a new institution in our legal order, because it was already “used
successfully” once in constitutional Act no. 69/1998 Coll., and therefore, there is
no reason why the Parliament could not now choose the same path for shortening
the fifth term of office of the Chamber of Deputies, because this solution can
speedily open the path to early parliamentary elections and thus end a period of
political instability.
Among the criticisms of the adopted law, the response refers to the statement
from the Senate Permanent Commission for the Constitution of the Czech Republic
and Parliamentary Procedure, adopted at its 6th meeting, held on 27 May 2009, in
which the Commission concluded that the proposed constitutional act goes against
the purpose of the Constitution as a system of general rules of governing, known in
advance, interferes in the relationship between the deputies and the citizens, as
well as in the competence of the Senate, and adopting it is certainly not the only
way to arrange early elections to the Chamber of Deputies.
In conclusion, the Chairman of the Senate states that the Senate discussed the
draft constitutional act within the bounds of constitutionally specified competence
and in a constitutionally prescribed manner, and approved the contested
constitutional framework by a majority, with the knowledge that its substance was
not inconsistent with Art. 9 par. 2 of the Constitution or with other norms that are
part of the constitutional order; he leaves the evaluation of the petitioner’s
objections fully in the Constitutional Court’s discretion.
In view of the exceptional urgency of the matter, the Constitutional Court
shortened the deadline under § 69 par. 1 of Act no. 182/1993 Coll. and
simultaneously notified both chambers of the Parliament of the CR of their
opportunity to state, immediately after receiving the petition for a response, that
they consider the time given by the deadline to be insufficient. The party to the
proceeding accepted the Constitutional Court’s actions and sent the response to
the petition by the deadline specified.
III.
Hearing
At the hearing, no proposals were made to supplement the evidence, and no new
facts beyond the framework of the petition and written responses to it arose from
the testimony of the parties to the proceeding or their responses to the judges’
questions.
IV.
The Imperative of the Non-changeability of the Material Core of the Constitution of
the Czech Republic (Art. 9 par. 2 of the Constitution) and its Impact on Art. 87 par.
1 let. a) of the Constitution
In its first judgment in a proceeding on review of norms, in the matter of the
constitutionality of Act no. 198/1993 Coll., on the Illegality of the Communist
Regime and on Resistance to It, file no. Pl. ÚS 19/93, the Constitutional Court
formulated fundamental these for the interpretation and understanding of the
imperative of the non-changeability of the material core of the Constitution: “In its
later development, the legal positivism tradition … revealed … its weaknesses
several times. Constitutions constructed on these foundations are neutral as to
values: they form an institutional and procedural framework, which can be filled
with very different political content, because observing the jurisdictional and
procedural framework of constitutional institutions and procedures, i.e. criteria of
a formally rational nature, becomes the criterion for constitutionality. … The
awareness that injustice must remain injustice, even if it is wrapped in the cloak of
the law, was reflected in the constitution of post-war Germany, and at present also
in the Constitution of the Czech Republic. Our new constitution is not established
on neutrality of values, it is not merely a definition of institutions and processes,
but incorporates in its text certain regulatory ideas, expressing the basic
untouchable values of a democratic society. … Czech law is not based on the
supremacy of laws. The fact that statutes are superior to lower legal norms does
not yet mean that they are sovereign. Even in the sense of the scope of legislative
competence within a constitutional state, one cannot speak of the sovereignty of
laws. In the concept of a constitutional state on which the Czech Constitution is
based, law and justice are not subject to the discretion of the legislature, and thus
of laws, because the legislature is bound by certain fundamental values that the
Constitution declares to be untouchable. For example, the Czech Constitution
provides in Art. 9 par. 2 that ‘any change in the essential requirements for a
democratic state governed by the rule of law is impermissible.’ This places the
constitutive principles of a democratic society, within this constitution, above
legislative competence, and thus ‘ultra vires’ of Parliament. A constitutional state
stands and falls with these principles. Removal of one of these principles, by
anyone, even by a majority or unanimous decision of Parliament, could not be
interpreted otherwise than as removal of this constitutional state as such.”
In judgment file no. Pl. ÚS 36/01 the Constitutional Court applied Art. 9 par. 2 of
the Constitution in the position of a basic rule for interpretation of the Constitution
and amendments to it: “The constitutional maxim in Art. 9 par. 2 of the
Constitution has consequences not only for the framers of the constitution, but also
for the Constitutional Court. The inadmissibility of changing the substantive
requirements of a democratic state based on the rule of law also contains an
instruction to the Constitutional Court, that no amendment to the Constitution can
be interpreted in such a way that it would result in limiting an already achieved
procedural level of protection for fundamental rights and freedoms.” In this
connection, we must also mention judgment file no. Pl. ÚS 11/02, in which the
Court also included in Art. 9 par. 2 of the Constitution the guarantee of ruling out
arbitrariness in its own interpretation of the constitutional order: “If the
Constitutional Court itself, as a constitutional body, i.e. a public authority, is not
to act arbitrarily, the Constitutional Court also being subject to the prohibition on
arbitrary conduct, because it too, or it especially, is required to respect the
framework of the constitutional state, in which arbitrary conduct by public
authorities is strictly forbidden, it must feel bound by its own decisions, and can
depart from them through its case law only under certain circumstances. This
postulate can be described as an essential requirement for a democratic state
governed by the rule of law (Art. 1 par. 1, in connection with Art. 9, par. 2 of the
Constitution.)”
In a number of its decisions the Constitutional Court also outlined the meaning of
the term “essential requirements for a democratic state governed by the rule of
law” under Art. 9 par. 2 of the Constitution. In judgment file no. III. ÚS 31/97 it
stated: “The concept of a democratic state under Art. 9 par. 2 of the Constitution
is interpreted by the Constitutional Court, as well as by doctrine. In its decision in
the matter file no. Pl. ÚS 19/93, the Constitutional Court included in this concept a
substantive, not a formal, understanding of a state governed by the rule of law.”
The court also referred to doctrinaire positions, according to which the essential
requirements for a democratic state governed by the rule of law under Art. 9 par. 2
and 3 of the Constitution include “above all the sovereignty of the people and the
principles contained in Art. 5 and 6 of the Constitution and the natural law
provisions of the Charter of Fundamental Rights and Freedoms, which establish a
constitutional right to resistance (Art. 23 of the Charter)“ , or, in other words,
these requirements are “concentrated in several articles of Chapter I of the
Constitution and in Chapter I and V of the Charter, and ceremonially declared in
the Preamble to the Constitution“ . From a comparative perspective, the
Constitutional Court also pointed to Art. 79 par. 3 of the Grundgesetz of Germany,
Art. 110 par. 1 of the Constitution of the Greek Republic, and Art. 288 of the
Constitution of the Portuguese Republic.
The Constitutional Court also included in the material focus of the legal order –
consistently with the doctrinaire opinion – the fundamental principles of election
law (judgment file no. Pl. ÚS 42/2000).
We can draw several general conclusions from these decisions: in its case law, the
Constitutional Court emphatically made clear the need to protect the material
focus of the constitutional order, and, partly abstractly and partly casuistically,
indicated its structure, as well as the fact that its consequences apply not only to
the democratic legislature, but to the Constitutional Court itself. When (file no. Pl.
ÚS 36/01) it was faced with a constitutional act (amending and supplementing the
Constitution) that the Court considered to be inconsistent with the material focus
of the Constitution (Art. 9 par. 2), it then proceeded using a method of
interpretation that conformed to the safeguards arising from Art. 9 par. 2 (i.e. by
analogy, with the principle of giving priority to a consistent interpretation over
derogation). It maintained this legal opinion in its further case law (file no. Pl. ÚS
44/02 and I. ÚS 752/02).
Where the Constitutional Court, in judgment file no. Pl. ÚS 21/01, departed from
previous settled case law, this legal opinion was not part of the essential grounds
for that decision, and was stated only as obiter dictum. In this regard, democratic
constitutional law theory agrees that it is relevant to the binding nature of a
precedent to distinguish the importance of ratio decidendi and obiter dicta: “the
written opinion of the precedent-setting court is not binding in its entirety; only
the grounds for the decision, the ratio decidendi, are binding.”
The constitutional development in the Czech Republic is in line with the
constitutional development of European democracies in the protection of the
constitutive principles of a democratic society.
The authors of the German Grundgesetz (Fundamental Law) of 1949 responded to
German history of 1919-1945 by, among other things, removing the “material focus
of the Constitution” from the discretion of the constitutional framers; in other
words, by enshrining the “imperative of non-changeability” (Ewigkeitsklausel).
Under it, amendment to the Grundgesetz concerning the fundamental principles of
federal organization, the basic principles of protection of human rights, a lawbased
state, the sovereignty of the people, and the right to civil disobedience is
impermissible (Art. 79 par. 3 of the Grundgesetz). According to the doctrine and
case law of the German Constitutional Court, the consequence of this framework of
non-changeability of the “material core” of the Constitution is a procedure where
the German Constitutional Court would rule, with final effect, on the inconsistency
of a constitutional act with the material core of the constitution; this includes the
possibility that it would declare the amendment to the Grundgesetz invalid. The
doctrinaire opinion that the German Constitutional Court is competent to rule that
a constitutional act amending the Grundgesetz inconsistently with Art. 79 par. 3 is
invalid, became accepted when the Grundgesetz went into effect, and was
subsequently confirmed by the case law of the German Constitutional Court
(BVerfGE, 30, 1/24).
The Constitution of the Austrian Republic defines procedural limitations on the
constitutional framers for the Constitution’s material focus, and also establishes
the competence of the Constitutional Court in that regard. In Austrian
constitutional law theory, “land and federal statutes, both ordinary and
constitutional acts, are within the review competence of the Constitutional Court.”
This competence is derived, out of the group of federal constitutional acts, from
Art. 140 of the Federal Constitution, which establishes the general competence of
the Court in reviewing norms, in connection with Art. 44 par. 3 of the Federal
Constitution, under which a complete revision of the Constitution, or a partial
revision, if one third of members of the National Council Federal Council request it,
must be approved by a referendum. Doctrinaire opinion is that it is up to the
Constitutional Court to review, including through an a posteriori review of norms,
whether this procedure has been observed in terms of an amending intervention by
the constitutional framers in the “material focus of the Constitution.” It includes
among the components of that focus, a representative democracy, federal
organization, a liberal law-based state and the separation of powers. This opinion
is also based on the legal opinion of the Austrian Constitutional Court, stated in
decisions VfSlg. 11.584, 11.756, 11.827, 11.916, 11.918, 11.927, 11.972. Starting
from the criticism that legislative practice circumvents the authority of the
Constitutional Court by adopting constitutional acts in areas of simple law, the
Court concludes that the constitutional framers cannot, in this manner “head
toward” breaching the fundamental principles of the Federal Constitution.
This line of decisions was also confirmed by the Court’s other case law. The
decision of 11 November 2001 VfGH 16.327 reviewed the constitutionality of a
statutory provision to which the Parliament ascribed the force of a constitutional
provision, § 126a of the Act on Public Procurements, under which “provisions of
land statutes valid as of 1 January 2001, concerning the organization and
competence of bodies that are responsible for legal protection concerning public
procurement, are deemed to be not inconsistent with the Federal Constitution.”
The Constitutional Court previously distinguished simple and qualified
constitutional law (i.e. constitutional law that forms the material core of the
Constitution under Art. 44 par. 3). It stated that, for the purpose of protecting “the
existing core of the Constitution,” the constitutional framers of simple
constitutional law are not permitted to completely suspend the binding nature of
the Federal Constitution for a component field of the legal order (regardless of the
importance of that component field). In this regard, the Constitutional Court did
not consider it necessary to review whether proceedings under Art. 44 par. 3 of the
Federal Constitution came into consideration. It stated that suspending the
Constitution is inconsistent with the principles of democracy and with a law-based
state, and is not within the discretion of the constitutional framers under Art. 44
par. 1 of the Federal Constitution. On the basis of these arguments, and although,
under the literal wording of Art. 140 par. 1 of the Federal Constitution, the
Constitutional Court decides “on the unconstitutionality of federal and land
statutes, the Constitutional Court annulled § 126a of the Act on Public
Procurement, described by the constitutional framers as a provision of a
constitutional act and adopted by a procedure under Art. 44 par. 1 of the Federal
Constitution.
The development of democratic constitutionality in democratic countries at
present emphasizes the protection of values that identify the constitutional system
of freedom and democracy, which includes the possibility of judicial review of
constitutional amendments.
Just as in Germany Art. 79 par. 3 of the Grundgesetz is a reaction to the
undemocratic developments and Nazi despotism in the period before 1945 (and
analogously, Art. 44 par. 3 of the Federal Constitution of the Austrian Republic),
Art. 9 par. 2 of the Constitution is the result of experience with the decline of legal
culture and suppression of fundamental rights during the forty-year rule of the
communist regime in Czechoslovakia. Therefore, as a result of this analogy,
interpretation of Art. 79 par. 3 of the Grundgesetz by the German Federal
Constitutional Court and similar steps in other democratic countries are deeply
inspiring for the Constitutional Court of the Czech Republic.
Insofar as the Constitutional Court articulates the need to include the category of
constitutional acts within the term “statute” in Art. 87 par. 1 let. a) of the
Constitution, in terms of reviewing them for consistency with Art. 9 par. 2 of the
Constitution, with direct derogative consequences, it does so in connection to its
case law, beginning with the key judgment file no. Pl. ÚS 19/93, and does so in
accordance with the values and principles that guide constitutional systems in
democratic countries. Protection of the material core of the Constitution, i.e. the
imperative that the essential requirements for a democratic state governed by the
rule of law, under Art. 9 par. 2 of the Constitution, are non-changeable, is not a
mere slogan or proclamation, but a constitutional provision with normative
consequences. In No. 78 of The Federalist Papers, Alexander Hamilton wrote that
“the courts were designed to be an intermediate body between the people and the
legislature, in order, among other things, to keep the latter within the limits
assigned to their authority.” Without the projection of Art. 9 par. 2 of the
Constitution into interpretation of Art. 87 par. 1 let. a) of the Constitution, the
non-changeability of the essential requirements for a democratic state governed by
the rule of law would lose its normative nature and remain merely a political, or
moral challenge.
The Constitutional Court notes, only secondarily, that for those situations where
the category of constitutional acts needs to be excluded from the term “statute,”
the wording of the Constitution expressly enshrines this fact [see Art. 50 par. 1,
Art. 62 let. h) of the Constitution].
V.
Constitutional Conformity of the Legislative Process
Starting with the interpretation of Art. 87 par. 1 let. a) of the Constitution thus
presented, the Constitutional Court, in accordance with § 68 par. 2 of Act no.
182/1993 Coll., as amended by later regulations, as is the rule in proceedings on
the review of norms, in this matter too is required to evaluate whether the
contested constitutional act was adopted and issued within the bounds of
constitutionally prescribed competence and in a constitutionally prescribed
manner.
Chamber of Deputies publications and stenographic records, as well as the response
to the party to the proceeding, the Parliament of the Czech Republic, showed that
the Chamber of Deputies approved the draft of the act in question, i.e.
constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the
Chamber of Deputies, in the third reading at its 56th session on 13 May 2009 by
resolution no. 1207, when out of 189 deputies present, 172 deputies voted in favor,
and 9 were against.
On 28 May 2009, the plenum of the Senate discussed the draft act at 7th session of
its seventh term of office, and approved the draft act by resolution no. 181. In vote
no. 4, out of 71 senators present, 56 were in favor of the act, 8 were against, and 7
abstained.
The constitutional act was signed by the appropriate constitutional authorities and
was duly promulgated as no. 195/2009 Coll. in part 58 of the Collection of Laws,
which was distributed on 29 June 2009, and under Art. 3 it went into effect on the
day it was promulgated, i.e. on 29 June 2009.
VI.
Breach of the Constitution by an Ad Hoc Constitutional Act (a Constitutional Act for
an Individual Instance) and Conflict with the Essential Requirements for a
Democratic State Governed by the Rule of Law
The aims of adopting constitutional Act no. 195/2009 Coll. are expressed in the
background report to the draft constitutional Act on Shortening the Fifth Term of
Office of the Chamber of Deputies, submitted by Deputies Petr Tluchoř, Bohuslav
Sobotka and Přemysl Rabas (Chamber of Deputies publication 796): “In view of the
present distribution of political parties in the Chamber of Deputies, where, under
Art. 68 par. 3 of the Constitution, the newly appointed government must seek a
vote of confidence within 30 days after it is named, and in view of the fact that the
Chamber of Deputies can be dissolved and new elections called only when three
governments in a row have failed to obtain a vote of confidence in the Chamber of
Deputies [Art. 35 par. 1 let. a) of the Constitution], the Czech Republic faces the
danger of a lengthy period of instability and political crisis. A constitutionally
legitimate means for resolving this situation is to hold early elections, in which the
citizens can newly express their will, and from which a new Chamber of Deputies
can be formed, able to give the government and the Czech Republic the political
foundations necessary to stabilize the constitutional, political and economic
conditions. … Thus, the proposed constitutional act proposes a solution that
Parliament already selected in the 1990s in order to hold early elections to the
Chamber of Deputies in 1998. The political representatives of that time (the
government and both chambers of Parliament) also came to an agreement on
calling early elections through a special constitutional act. … Thus, this is a path to
organizing new elections to the Chamber of Deputies that is already familiar to our
constitutional practice. The proposed constitutional act does not conflict with the
essential requirements for a democratic state governed by the rule of law, which,
under Art. 9 par. 2 of the Constitution, may not be changed. In particular, it
respects Art. 21 par. 2 of the Charter of Fundamental Rights and Freedoms, under
which elections must be held by deadlines that do not exceed the regular terms of
office provided by law.”
During parliamentary debate on the proposed constitutional act, arguments were
also heard against adopting it, from various political parties (see, e.g. the
statement by Deputy Cyril Svoboda at the 56th session of the Chamber of Deputies
of the Parliament of the CR on 28 April 2009
[http://www.psp.cz/eknih/2006ps/stenprot/056schuz/s056014.htm], Senators
Tomáš Töpfer, Petr Pithart and Soňa Paukrtová at the 7th session of the Senate of
the Parliament of the CR on 28 May 2009
[http://www.senat.cz/xqw/xervlet/pssenat/hlasovani?action=steno&O=7&IS=4129
&T=75#st75]).
The Senate Permanent Commission for the Constitution of the Czech Republic and
Parliamentary Procedure, at its 6th meeting, held on 27 May 2009, unanimously
adopted a position on the draft constitutional Act on Shortening the Fifth Term of
Office of the Chamber of Deputies (Senate publication 75) in which it said: “The
submitted draft constitutional act is not an amendment to the Constitution in the
form of formulation of a general rule. It takes no notice of constitutional
mechanisms – does not change them, supplement them, or formally annul them,
merely, for this one instance, provides a different way to reach early elections.
The dispute is not about early elections, but about the route to them – systematic
and constitutional on the one hand, or ad hoc on the other hand. Therefore,
referring to the right of the people to decide who will rule them (see the
background report to Chamber of Deputies publication 796) is not a relevant
argument. … The model for the draft is constitutional Act no. 69/1998 Coll. Unlike
in that case, however, the element of surprise is lacking, because the problem is
known, and solutions have been proposed. If the route of adopting ad hoc
constitutional acts were to become routine, the Constitution would never change,
because it would be unnecessary. In that case, of course, there is the danger that
it will diverge from constitutional and political reality – it will become a “façade.”
At the same time, every political crisis will turn into a constitutional crisis, because
it will be addressed by a constitutional act. … There are doubts about the
“constitutionality” of this draft act. The Commission recognizes the possible
existence of “unconstitutional constitutional acts,” or maybe rather only imaginary
ones, because they are constitutional acts adopted outside the competence (ultra
vires) of the constitutional framers, if they are inconsistent with the essential
requirements for a democratic state governed by the rule of law, which Art. 9 par.
2 of the Constitution declares it is impermissible to change. If this were not so, the
cited provision would have no normative meaning. … The draft constitutional act
goes against the purpose of the Constitution as a system of general rules of
government, known in advance; it interferes in the relationship between the
deputies and the citizens, as well as in the competence of the Senate. Adopting it
is certainly not the only way to achieve early elections to the Chamber of Deputies,
and it will certainly reduce the pressure for any amendment to the Constitution.
Not, however, to the benefit of its stability, but with the risk of ad hoc
circumvention.”
The petition to annul constitutional Act no. 195/2009 Coll., the response from the
party to the proceeding, as well as the opposing arguments expressed during
parliamentary debate, all raise these fundamental questions for the Constitutional
Court: Under the Constitution, what definitional, conceptual elements define the
category of constitutional acts? Is an act automatically a constitutional act if it is
labeled as such by the Parliament of the Czech Republic and is adopted by a
procedure under Art. 39 par. 4 of the Constitution? Or must it also meet other
conditions: the condition of competence (authorization) under Art. 9 par. 1 of the
Constitution or another express constitutional authorization (Art. 2 par. 2, Art. 10a
par. 2, Art. 11, Art. 100 par. 3), and the substantive condition provided in Art. 9
par. 2 of the Constitution?
VI./a
Generality of a Constitutional Act as an Essential Requirement of a State Governed
by the Rule of Law
The constitutional practice of the Weimar Republic in 1919 to 1933 was marked by
regular breaches of the constitution by special constitutional acts, including for an
individual case (which led to the constitution being poorly organized and unstable).
A bitter debate on the permissibility of breaching the constitution was led by the
positivists (P. Laband, G. Jellinek, G. Anschütz, S. Jaselsohn, W. Jellinek) ane the
substantively (value) oriented constitutionalists (C. Schmitt, G. Leibholz, C.
Bilfinger). Since that time, European constitutional theory understands breaching
the constitution to be the following procedure by parliament: “In a breach, the
constitutional law provision is not amended, but a deviating directive is made in an
individual case – while leaving it generally valid for other cases. … Such breaches
are, by their nature, measures, and not norms, which is why they are not statutes
in the state-law sense of the word, and as a result are also not constitutional acts.
… The legislature, as a legislature, can only issue statutes, but it cannot breach
them; the question concerns not legislative activity, but sovereignty.“
The German Grundgesetz of 1949, reacting to the practices of the Weimar Republic
and its outcomes, established a framework under which it can be changed only by a
statute that expressly amends or supplements the text of the Grundgesetz (Art. 79
par. 1 first sentence of the Grundgesetz). This constitutional provision rules out,
does not permit the possibility of breaching the Grundgesetz.
The impermissibility of breaching the constitution with an ad hoc constitutional act
(for a single instance) is also emphasized in other democratic European countries.
The fact that statutes (i.e. fixed legal norms) should be of a general nature is not
an expectation of the civil law-based state developed only in the 19th century. This
idea accompanies all European legal history. It is found in the maxims of the great
Roman lawyers, is lost in the Middle Ages, and comes to life again in the era of
enlightenment and rationalism. Generality of content is the ideal, typical, and
essential element of a statute, compared to court decisions, or government and
administrative acts. The purpose of dividing state powers into the legislative,
executive and judicial branches is to entrust the general and primary ruling of the
state to the legislature, derivative general ruling and decision making about
individual cases to the administrative branch, and exclusively only decision making
on individual cases to the judiciary. The requirement that a statute be general is
an important component of the principle of the rule of law and thus also of a state
governed by the rule of law. As F. A. Hayek, one of the most important 20th
century theoreticians of the law-based state, says: “[There is] the belief that so
long as all actions of the state are duly authorized by legislation, the Rule of Law
will be preserved. But this is completely to misconceive the meaning of the Rule of
Law. … The Rule of Law thus implies limits to the scope of legislation: it restricts it
to the kind of general rules known as formal law, and excludes legislation …
directly aimed at particular people….”
In a number of its decisions, the Constitutional Court has repeatedly spoken on the
requirement that a legal regulation be general. In judgments file no. Pl. ÚS
55/2000 and Pl. ÚS 24/04 it stated the following: “The fundamental principles of a
substantive law-based state include the maxim that legal regulations must be
general (the requirements that a statute, or legal regulations, be general). The
generality of content is an ideal, typical, and essential element of a statute (or a
legal regulation generally), in relation to judicial decisions, government and
administrative acts. The purpose of dividing state powers into the legislative,
executive and judicial branches is to entrust the general and primary ruling of the
state to the legislature, derivative ruling and decision making about individual
cases to the administrative branch, and exclusively only decision making on
individual cases to the judiciary. This outline of the definitive element of the term
statute (or legal regulation) then gives rise to the term statute (legal regulation) in
the substantive sense, from which we must distinguish statutes (legal regulations)
in the formal sense. If statutes, in the formal sense, are the acts of a legislative
body through which it ‘permits, or approves certain specific measures by the
executive bodies (the state budget, national treaties, etc.),’ traditional scholarship
believes that in such cases the legislative body issues – in the form of statutes –
administrative acts.’ (F. Weyr, Československé ústavní právo [Czechoslovak
Constitutional Law], Prague 1937, p. 37) ... Although they may be sources of law by
their form (a legal regulation), by their substance they are also application of law.”
The Constitutional Court analyzed the arguments in favor of generality of legal
regulations in judgment file no. Pl. ÚS 12/02, in which it stated: “However, in this
matter these viewpoints must be applied to review of a statute that governs a
unique instance, and which therefore deviates from one of the fundamental
material elements of the term “statute,” which is generality. Let us point out that
the requirements that a statute be general is an important elements of the
principle of the rule of law and likewise the law-based state. …A special argument
against statutes that govern individual cases is the principle of separation of
powers, i.e. the separation of the legislative, executive and judicial branches in a
democratic, law-based state. Art. I sec. 9 of the Constitution of the USA said in this
regard: ‘No Bill of Attainder or ex post facto Law shall be passed.’”
The Constitutional Court considered the question of ruling out judicial review in
the case of an individual legal regulation in judgment file no. Pl. ÚS 40/02, where
it stated “An individual regulation contained in a legal regulation that deprives the
addressees of the possibility of judicial review of the fulfillment of general
conditions of the normative framework by a particular subject, which lacks
transparent and acceptable justification in relation to the possibility of general
regulation, must thus be considered inconsistent with the principle of a state
governed by the rule of law (Art. 1 of the Constitution), in which the separation of
powers and judicial protection of rights are immanent (Art. 81, Art. 90 of the
Constitution).”
Thus, arguments in favor of the generality of law are the separation of powers,
equality, and the right to an independent judge, and the removal of capriciousness
(arbitrariness) in the exercise of state power.
Under Art. 9 par. 1, the Constitution can be supplemented or amended only by
constitutional acts. Moreover, in a number of its provisions the Constitution
expressly authorizes Parliament to issue constitutional acts that govern a precisely
defined subject matter (Art. 2 par. 2, Art. 10a par. 2, Art. 11, Art. 100 par. 3). To
evaluate the constitutionality of respecting competence in issuing constitutional
Act no. 195/2009 Coll. we must also answer the question of whether an ad hoc
constitutional act (for an individual instance) can be included in the framework of
permissible constitutional amendments under Art. 9 par. 1 of the Constitution.
An ad hoc constitutional act (for an individual instance) is not a supplement or
amendment to the Constitution. In content, a constitutional act for an individual
instance can take two forms – either it involves time-limited suspension of the
Constitution, or a substantive, or personal, exception from the general validity of
the constitutional framework.
A supplement to the constitution can be characterized by the fact that the
supplemented constitutional provision does not change, and the supplemented and
supplementing provisions are not inconsistent. An amendment to the constitution
means that a particular constitutional provision is annulled or partly annulled and
perhaps (not necessarily) a new provision is established. In a breach, the
constitution is not annulled, but the breached (in this case, suspended) provision
and the breaching (in this case, suspending) provision are inconsistent.
Constitutional Act no. 195/2009 Coll. is a constitutional act only in form, but not in
substance. In substance it is an individual legal act affecting not a generally
defined circle of addressees and situations, but a specifically designated subject
(the Chamber of Deputies of the Parliament of the Czech Republic elected in 2006)
and a specific situation (ending its term of office on the day of elections, which are
to be held by 15 October 2009, and shortening deadlines under the Act on Elections
to the Parliament of the Czech Republic and under the Administrative Procedure
Code, only for this instance). This fact is expressly stated not only in Art. 1 of this
constitutional Act, but also in Art. 2 (which is a direct amendment to statutes
implemented by the constitutional act!), which contains the express formulation
concerning the shortening of deadlines, “for this instance.”
If the Constitutional Court is forced to answer the question of whether Art. 9 par. 1
of the Constitution also authorizes Parliament to issue individual legal acts in the
form of constitutional acts (e.g. to issue criminal verdicts against specific persons
for specific actions, to issue administrative decisions on expropriation, to shorten
the term of office of a particular official of a state body, etc.), the answer is – no!
The Constitutional Court also stated the substantive view for reviewing the sources
of law absolutely unambiguously in judgment file no. Pl. ÚS 24/99: “The concept of
a law-based state, which is enshrined in Art. 1 of the Constitution, gives rise to the
principle that neither the legislature nor the executive can deal arbitrarily with the
forms of law, i.e. with the sources of law; but they must be guided by the
viewpoints of the constitutional framers, as well as by other viewpoints, in
particular transparency, accessibility and clarity. In the opinion of the plenum of
the Constitutional Court, classification of the sources of law must be derived, first
of all, from the content of a legal norm.”
The original constitutional framers, in Art. 9 par. 2 of the Constitution, placed the
democratic principle and the principle of a law-based state on the same level
among the principles that fundamentally identify the constitutional system of the
Czech Republic. As the Constitutional Court’s case law indicates, violating the
principle of generality of laws falls within the realm of impermissible interference
with a law-based state. Possible exceptions are either cases of accepting
application of law in the form of a statute (e.g. an act on the state budget), or
cases of express authorization to issue an ad hoc statute (e.g. constitutional acts
issued under Art. 11 and Art. 100 par. 3 of the Constitution) or ad hoc statutes
whose issuance is supported by exceptional reasons that meet the condition of the
proportionality test (e.g. restitution acts containing lists).
In the absence of a constitutional authorization to issue constitutional acts ad hoc,
the constitutional conformity of a constitutional act adopted inconsistently with
the constitutionally defined scope of the competence of Parliament could be
established only by protection of the material core under Art. 9 par. 2 of the
Constitution. In other words, protection of the democratic state governed by the
rule of law by adopting an ad hoc constitutional act could be accepted in
absolutely exceptional circumstances (such as a state of war or natural catastrophe
that are not addressed by either the Constitution or by constitutional Act no.
110/1998 Coll., on the Security of the Czech Republic, as amended by
constitutional Act no. 300/2000 Coll.), but that procedure would have to meet the
requirements that follow from the principle of proportionality.
As the Constitutional Court has ruled in its settled case law (see judgments file no.
Pl. ÚS 4/94, Pl. ÚS 15/96, Pl. ÚS 16/98, Pl. ÚS 41/02 and others), the principle of
proportionality is based, among other things, on analysis of the possible normative
means in relation to the intended aim, and their subsidiarity in terms of limiting
constitutionally protected values – a fundamental right or public good. If the aim
pursued by the legislature (in this case the constitutional framers) can be achieved
by different normative means, then the constitutionally conforming one is the one
that limits the given constitutionally protected value to the smallest extent.
If the aim of passing constitutional Act no. 195/2009 Coll. was to quickly resolve
the governmental (parliamentary) crisis, and accordingly, quickly dissolve the
Chamber of Deputies and call early elections, in the Constitutional Court’s opinion
this aim could also have been achieved by a constitutional process under Art. 35
par. 1 of the Constitution [specifically, a process according to letter b) of that
Article]. Thus, the consequence of adopting the contested statutory provision was
not to resolve the government crisis quickly, but to shift the date until which the
Chamber of Deputies would remain in office until the date of the elections – if the
Chamber of Deputies were dissolved, under Art. 17 par. 2 of the Constitution
elections would be held within sixty days after it was dissolved. This breach of the
constitutional framework contained in Art. 35 of the Constitution also circumvents
the constitutional purpose of the institution of dissolving the Chamber of Deputies,
which is constitutional pressure to have a vote of no confidence in the government
(or a refusal to give a vote of confidence) joined to awareness of the constitutional
consequences, in the event that there is no new parliamentary majority capable of
forming a government. Beyond that, it remains only to emphasize that the most
important public interest arising from Art. 9 par. 2 of the Constitution is the
formation of a legitimate Parliament, based on elections whose legal basis is not
open to constitutional challenge.
For the reasons thus set forth, the Constitutional Court did not find arguments in
favor of not observing the framework of authorization for adopting constitutional
acts, as it is defined in Art. 9 par. 1 of the Constitution.
The Constitutional Court has repeatedly emphasized that it considers the principle
of generality of a constitutional act to be part of the essential requirements for a
law-based state. It points out that generality is not an aim in itself; its aim is to
ensure separation of the legislative, executive and judicial branches, an equal
constitutional framework for analogous situations, and thereby to rule out
arbitrariness in the application of state authority, and enable a guarantee of the
protection of individual rights in the form of a right to judicial protection.
Therefore, the essence and significance of the generality of a constitutional act, as
a conceptual element of the category of a state governed by the rule of law, is
protection of freedom.
An argument made in favor of constitutional conformity of constitutional of Act no.
195/2009 Coll. is that it did not affect Art. 21 par. 2 of the Charter, so the term of
office of the Chamber of Deputies was not lengthened, but shortened, so there was
no limitation of the voting rights of citizens or interference in the legitimacy of
Parliament. A relevant statement supporting this argument was raised in the
parliamentary debate on the draft constitutional Act on Shortening the Term of
office of the Chamber of Deputies in 1998: “the danger of the proposed act lies
primarily in the fact that it creates a precedent of the highest legal force, a
precedent that says that it is possible, for momentary, utilitarian, political reasons,
to change the fundamental law of the land. If that is possible once, it is possible
always. Parliament could, for the same reasons, suspend the powers of the
Constitutional Court if its decisions were not in line with the political will of the
moment; it could, for the same reasons, suspend the powers of the president if
they were inconsistent with the political will of the moment, it could, for the same
reasons, suspend the Charter of Fundamental Rights and Freedoms if it were an
obstacle to achieving political aims. Putting fundamental legal certainties in doubt
for political reasons puts democracy in doubt, and it creates the potential danger
that authoritarianism and totalitarianism will arise. And it is to no avail that the
authors of this precedent did not and do not, as I believe, have anything of the sort
in mind, and through their draft act only want to arrange for early elections to be
held. Political logic does not take account of intent, and those who will next time
go down the path that this precedent opens may have different and much darker
intent. It is precisely for this reason that the Constitution of the CR expressly states
in Art. 9 par. 2, that amendment of the essential requirements for a democratic
state governed by the rule of law is impermissible.” Similarly as in 1998, so in the
process of adopting the constitutional Act on Shortening the Term of Office of the
Chamber of Deputies elected in 2006 the relevant counter arguments were heard
against this argument in favor of it, especially in the widely quoted opinion of the
Senate Permanent Commission for the Constitution of the Czech Republic and
Parliamentary Procedure.
In addition to the principle that it is impermissible to hold elections in time periods
that exceed the term of office, Art. 21 par. 2 of the Charter also enshrines the
principle of regular terms of office (regular exercise of voting rights). The ad hoc
constitutional act on shortening the term of office is inconsistent with the
constitutional imperative of regular election periods, only for on e instance, not
generally for the future; it sets an exception to Art. 16 par. 1 of the Constitution.
The Constitutional Court concludes: even the constitutional framers cannot declare
constitutional an act that lacks the character of a statute, let alone of a
constitutional act. Such a procedure is unconstitutional arbitrariness. Ruling out
review of such acts by the Constitutional Court would completely eliminate its role
as the protector of constitutionality (Art. 83 of the Constitution).
VI./b
The Ban on Retroactivity of a Constitutional Act as and Essential Requirement for a
State Governed by the Rule of Law
The Constitutional Court has already, in judgment file no. Pl. ÚS 21/96, set the
basic viewpoints for evaluating the constitutionality of a retroactive legal
framework (that legal opinion was then confirmed in a series of other decisions,
see file no. Pl. ÚS 35/08, Pl. ÚS-st. 27/09 and others). It stated that “the basic
principles defining a law-based state include the principle of protecting the
confidence of citizens in the law, and the related principle of the prohibition on
retroactivity of legal norms. … Thus, with true retroactivity, a lex posterior annuls
(does not recognize) legal effects at a time when a lex prior was in effect, or calls
forth or connects the rights and obligations of subjects with facts that were not
legal facts when the lex prior was in effect.”
There is a fundamental difference in the framework shortening the term of office
of the Czech National council by constitutional Act no. 64/1990 Coll., on the one
hand, and shortening the term of office of the Chamber of Deputies of the
Parliament of the Czech Republic by constitutional Acts no. 69/1998 Coll. and no.
195/2009 Coll., on the other hand. The first of the three cited constitutional acts
was adopted before elections were held and a representative assembly constituted,
and the two others were adopted afterwards. Thus, they retroactively set the
conditions for exercising voting rights (active and passive), The presumptions on
the basis of which the voters decided in the elections to the Chamber of Deputies
were changed with retroactive effect.
A democratic constitution, which is a fictional social contract, in its most general
form provides the framework of human freedom compatible with the freedom of
others, a set of constitutive values, and finally, the structure of the basic
institutions of public power and authority, through which they become legitimate.
The purpose of these institutions is to guarantee the constitutional framework of
freedom, guarantee domestic peace, as well as other constitutionally foreseen
public benefits. Thus, the constitution is a fundamental document that provides
binding and uncrossable rules, limits and bounds for the creation of the supreme
constitutional bodies of state power, from a substantive and procedural point of
view, as well as the ordinary and extraordinary termination of their mandates.
In this case, the Constitutional Court states that the early termination of the term
of office of the Chamber of Deputies of the Parliament of the Czech Republic is an
institution foreseen and approved by the Constitution (see the framework for
dissolving the Chamber of Deputies and calling early elections enshrined in Art. 35
of the Constitution). However, the Constitution cumulatively provides both
substantive conditions, as well as appropriate procedure, for exercising it, without
a possibility of deviating from them. In this case, the contested constitutional act
completely ignores both. It temporarily ad hoc suspends Article 35, and, outside
the constitutionally prescribed procedure, sets, for this individual instance, a
completely different procedure from the one that the Constitution foresees and
requires, and does so although that procedure is not admissible on the grounds of
exceptional purposes such as those in which, in the foregoing analysis on the
question of public interest, the Constitutional Court included, for example, a state
of war or natural catastrophe.
The Constitutional Court considers such circumvention of fundamental
constitutional principles to be incompatible with the principle of the prohibition on
retroactivity, in connection with the principles of protecting justified confidence
by the citizens in the law and the right to vote freely, i.e. – among other things –
the right to vote with knowledge of the conditions for creating the democratic
public authorities resulting from the elections, including knowledge of their term
of office. The Constitutional Court considers violation of these constitutional
principles arising from Art. 1 par. 1 of the Constitution to be interference with the
essential requirements for a democratic state governed by the rule of law,
enshrined in Art. 9 par. 2 of the Constitution.
VI./c
The Essential Grounds for Derogation of Constitutional Act no. 195/2009 Coll.
These starting points, thus set forth, are the basis for reaching an answer to the
questions formulated above, concerning the defining elements of constitutional
acts, of whether they must meet, in addition to the procedural conditions in Art.
39 par. 4 of the Constitution, also the condition of competence (authorization) in
Art. 9 par. 1 of the Constitution or another express constitutional authorization
(Art. 2 par. 2, Art. 10a par. 2, Art. 11, Art. 100 par. 3), and the substantive
condition set forth in Art. 9 par. 2 of the Constitution. The Constitutional Court’s
position is that the validity of a constitutional act comes from meeting all three of
these conditions: the procedural condition, the competence (authorization)
condition, and the substantive condition (consistency with the non-changeable
principles of a democratic state governed by the rule of law). In the adjudicated
matter, it then concluded that constitutional Act no. 195/2009 Coll., as regards
constitutionality, is unacceptably individual and retroactive, and that it violates
Art. 9 par. 1, Art. 21 par. 2 of the Charter in connection with Art. 16 par. 1 of the
Constitution and Art. 1 par. 1 of the Constitution, with an intensity that results in
interference in Art. 9 par. 2 of the Constitution.
Based on these reasons, the Constitutional Court concluded that constitutional Act
no. 195/2009 Coll., on Shortening the Fifth Term of Office of the Chamber of
Deputies, is inconsistent with the essential requirements for a democratic state
governed by the rule of law under Art. 9 par. 2 of the Constitution, wherefore it
annulled it as of 10 September 2009, i.e. the date this judgment is promulgated.
VII.
Derogation under § 70 par. 3 of Act no. 182/1993 Coll.
Under § 70 par. 3 of Act no. 182/1993 Coll., if implementing regulations were
issued to a statute that the Constitutional Court annuls, the Constitutional Court
shall simultaneously state in its judgment which implementing regulations cease to
be valid together with the statute.
In its resolution of 1 September 2009 ref. no. Pl. ÚS 24/09-16 on Deferring the
Enforceability of Decision of the President of the Republic no. 207/2009 Coll., on
Calling Elections to the Chamber of Deputies, the Constitutional Court stated that
this decision is of a mixed nature: it contains elements of a normative legal act,
and at the same it must be considered an act of application of the cited
constitutional act. Therefore, the Constitutional Court concluded that the elements
of a normative legal act (an implementing one) that are contained in this Decision
of the President of the Republic are grounds for the procedure under the cited § 70
par. 3 of Act no. 182/1993 Coll.
VIII.
Obiter Dictum
By annulling constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of
Office of the Chamber of Deputies, the Constitutional Court did not in any way
limit the rights of citizens to exercise their voting rights, because the only
consequence of this step (if Parliament does not adopt another, constitutionally
conforming solution) is that the present, democratically constituted Chamber of
Deputies of the Parliament of the Czech Republic will continue to perform its office
to the end of its regular term of office.
Instruction: Decisions of the Constitutional Court cannot be appealed.
Brno, 10 September 2009
Pavel Rychetský
Chairman of the Constitutional Court
Dissenting opinion of judge Vladimír Kůrka
I.
1. By way of introduction, I will state that, in my opinion, the review of the
constitutionality of Constitutional Act no. 195/2009 Coll. should never have been
opened, because, as I tried to explain in my dissenting opinion to the decision of
the plenum of the Constitutional Court of 1 September 2009, file no. Pl. ÚS 24/09,
the constitutional complaint from representative M. M. should have been rejected
as non-reviewable, whereby the proceeding concerning the petition related to
would have lost its foundation under § 74 of the Act on the Constitutional Court.
However, that is now passé.
II.
2. For purposes of the related review, it is proper to begin with what is a
constitutional act; that is (most generally) an act so designated, adopted in a
special (classified) procedure, and the subject matter it regulates is
“constitutional” material; these conditions have been met.
3. The Constitutional Court is bound by constitutional acts, and therefore they are
fundamentally not subject to its review under § 87 par. 1 let. a) of the
Constitution; however, one can agree (and it is obviously appropriate) that this
does not apply in the case of those “constitutional” acts that affected (violated)
the so-called material focus of the Constitution, as intended by Art. 9 par. 2 of the
Constitution. Of course, that possibility is an obvious exception to the principle.
4. Thus, the question before the Constitutional Court was whether in this case (of
Constitutional Act no. 195/2009 Coll.) there were exceptional grounds – in terms of
Art. 9 par. 2 of the Constitution – for it to to intervene.
5. In my opinion, which I will try to justify presently, such (sufficiently strong, or
persuasive) grounds do not exist here.
III.
6. Above all, however, I do not share the other method to which the majority of
the plenum turned. In simple terms, after it concluded that there was insufficient
“authorization” in Art. 9 par. 1 of the Constitution for issuing this constitutional act
(and thus “sentenced” the act to its review), it evaluated whether it might not
stand after all on the basis of Art. 9 par. 2 of the Constitution; that could give it
exceptional justification but in this matter that is not the situation. Thus, the order
of significance of Art. 9 par. 1 and Art. 9 par. 2 of the Constitution is reversed.
7. The majority of the plenum, to support the inconsistency of the evaluated
constitutional act with Art. 9 par. 1 of the Constitution, puts forth the opinion that
it does not represent either an “amendment” or “supplement” to the Constitution
anticipated by that article, because it is a particular – and impermissible – breach
of the Constitution, which it elucidates by quoting from the work cited in footnote
12, as well as in paragraphs 1 to 5 on page 15 of the reasoning of the judgment.
8. However, upon a closer look, it becomes justifiable that this may be a
“supplement’ to the Constitution after all; even a statute “for one-time use” is a
permanent component of the legal order, and here the fact that after it is applied
(and therefore “exhausted”) it is de facto no longer used (no social relationships,
or legal relationships, can arise under it or be governed by it), is meaningless. Such
a statute supplements the Constitution by even taking precedence over it in a
particular situation; in a certain sense it is in the position of a special law
(attributes such as “suspension,” postponement of the Constitution, etc., are only
forms of expression. If the regime for ending a term of office was formulated in Act
no. 195/2009 Coll. as the basis of a general rule, it would obviously be recognized,
that both this regime and the regimes under Art. 35 par. 1 of the Constitution can
exist side by side; thus, this would be a supplement to the Constitution under Art.
9 par. 1, among other things because it would be difficult to conclude, that they
would be mutually “inconsistent” (see paragraph 3 on page 15 of the reasoning).
9. It follows from this – if the inadequate “supplement” of the Constitution (in the
sense of lack of “authorization” under Art. 9 par. 1 of the Constitution) is not
unquestionable – that it also cannot be a reliable basis for the chosen method,
which, on the basis of Art. 9 par. 1 of the Constitution is aimed at establishing the
competence of the Constitutional Court to the review of a constitutional act (and
thereby, de facto, to derogation, avoidable only exceptionally, if it were to be
protection of the material focus of the Constitution under Art. 9 par. 2).
10. What appears all the riskier is that the inadequate “supplement” of the
Constitution (on the contrary, “breach”) is identified exclusively with the criticism
that it “regulates a unique case” or that it is an “ad hoc” statute, in other words,
that the regulation enshrined is insufficiently general, as in fact it is supposed to
be only a bill of attainder.
11. There is no doubt that statutes that lack the attributes of a general legal
regulation are “defective” statutes, which, as a rule, are in conflict with the
principles of a law-based state, although exceptions are generally known, and the
majority opinion itself mentions some (the Act on the State Budget, certain
enumerated restitution statutes, statutes passed under extraordinary
circumstances, natural catastrophes, or a state of war); certainly not all of them
can be described, as the majority would like, as aiming at protecting the material
core of the Constitution. In any case, there is also a visible difference between
“issuing criminal judgments” or “issuing administrative decisions on expropriation,”
which the majority opinion mentions (page 15, paragraph 5), and the contested
constitutional act, as well as between it (shortening a term of office) and
“shortening the period of holding office” of another state body (ibid.).
12. Of course, the basis for methods chosen by the majority of the plenum not only
becomes more relativized, because what comes into play is individual evaluation of
a particular statue, or its purpose and context when it was issued, but – and also
therefore – it loses persuasive strength and force of arguments in favor of the
exclusively determinative conclusion here, i.e. that the Constitutional Court,
without anything further, has the competence to intervene even if the contested
statute is a constitutional act.
IV.
13. For these reasons, in my opinion, priority should have been given to the method
stated in simplified form under points 1. to 3. above; the fact that there are no
adequate grounds for the Constitutional Court to intervene against the
constitutional act follows from the nature of the firmly maintained condition that a
constitutional act affect the material focus of the Constitution, protected by Art. 9
par. 2.
14. The material focus of the Constitution in Art. 9 par. 2 is defined with the help
of “relatively uncertain” concepts that cannot – in terms of content – be identified
(completely) abstractly, through exhaustive rules; a typical method is a
demonstrative (incomplete) listing of determinative elements, or perhaps
comparison of situations that specifically involve this “focus.” The individual
conclusion, whether there was (or was not) interference, logically cannot be based
on an undisputed contraposition of “yes, yes” versus “no, no,” but at the level of
“likely yes” or “likely no.” It was also stated above that the competence of the
Constitutional Court here is exceptional, and like every exception, must, by the
logic of the matter, be reviewed restrictively; doubts concerning in – in the
particular case – require restraint.
15. The foregoing (particularly points 10 and 11) posit that the inadequate
generality of a statue need not, in and of itself, be interference in Art. 9 par. 2 of
the Constitution, or that a positive finding thereof must be tied to the results of
individual review. This must apply all the more so to constitutional acts, because
the Constitutional Court’s approach to them is exceptionally limited.
16. However, in this review, if it involves a constitutional act, the principle of
proportionality, which the majority of the plenum also considers, necessarily
appears in a different form than with constitutional review of “ordinary” statutes;
the modification is caused by that “firmly maintained condition” (point 13), which
arises both from the exceptionality of the review, and from it being narrowed
solely to the level of Art. 9 par. 2 of the Constitution.
17. The basis of “individual” review consists of evaluating whether the reviewed
“non-general” constitutional act specifically, to a considerable degree, interfered
in the position of those constitutional subjects, which (together with their
relationship) are fundamental for the current constitutional system, and thus, as
the majority of the plenum concludes, is interference in the essential requirements
of a law-based state, the separation of powers and “equality and the right to one’s
own, independent judge.”
18. However, here – in my opinion –such interference (and the correspondingly
necessary intensity) – does not exist.
19. The opposite can be illustrated by example. It would be different in a situation
where a similar “constitutional” statute shortened the term of office
(appointment) of another constitutional body, for example (as the petitioner
states), the president, or Constitutional court judges, etc.; here, however, the
actions of Parliament were directed only at itself (the Chamber of Deputies), and
only to limit itself (shortening, not lengthening its term of office). It would be
appropriate to review shortening of a term of office differently only if the
Constitution enshrined a rule that the term of office of the Chamber of Deputies
cannot be shortened under any circumstances, and laid justified emphasis on
preserving that rule. It is worth pointing out that Art. 21 par. 2 of the Charter of
Fundamental Rights and Freedoms provides that elections must be held (only)
within periods of time not exceeding the regular terms of office provided for by
law, and the principle of regular elections derived therefrom by the majority of the
plenum is already limited anyway (Art. 35 par. 1 of the Constitution).
20. The Constitution anticipates a shortened term of office (Art. 35 par. 1), so one
can dispute only the process leading to it, which the reviewed constitutional act
represents, or which it newly established (added).
21. The only question then is whether this process to end the term of office of the
Chamber of Deputies, as yet unanticipated by the Constitution, could have affected
its – determinative – material focus (point 16).
22. Here we can not only not overlook the fact that the internal process in
Parliament when the contested act was adopted as a constitutional act, is formally
correct, and observes the requirement of voting by a supermajority of deputies; it
is especially important that the political (parliamentary) relationships were
obviously such that this same will of parliament, thus expressed, could also be
used, with the same result, in the indisputably “constitutional” process enshrined
in Art. 35 par. 1 let. a) of the Constitution. The general advantage emphasized by
the majority opinion, the fact that this process strengthens the responsibility of the
“new parliamentary majority” in the formation of the government, does not, in my
opinion, have a constitutional dimension.
23. It is certainly acceptable that the foreseeability of the process of “forming
constitutional bodies” is a constitutional value, as the majority of the plenum
states; however, for the reason just stated, putting forth this principle as a
measure to indicate that the level of the material focus of the Constitution was
reached in this case has limits that cannot be overlooked, if it is not obvious that
the situation resulting from the contested constitutional act (the early termination
of the term of office of the Chamber of Deputies), would be different from the
results of a “constitutional” process.
24. Comparison with the procedure under Art. 35 par. 1 let. a) of the Constitution,
on which the majority opinion relies, is not without importance, including because
achieving the aim it pursues could not be – given the existing distribution of
political parties in the Chamber of deputies, and the political interests they
formulated – anything other than an expression of a process which is externally
consistent with the Constitution, but on the other hand, at the price of applying
(repeatedly) a non-serious, but only pretended, constitutionally relevant will (the
will of the government regarding the call for a confidence vote and of the Chamber
of Deputies regarding voting on it), which obviously also does not correspond to
constitutional principles. The existence of a “true” will for a constitutional law
process is undoubtedly also a constitutional value, and that was necessarily
suppressed.
25. The rights of the minority (outvoted) deputies cannot be affected by the
reviewed process, or its expression in a constitutional act (in terms of Art. 9 par. 2
of the Constitution), not only because of the quality of the applied (statutory)
method, but also because there is no constitutionally guaranteed right for them to
exercise their mandate for a full term of office (Art. 35 par. 1 of the Constitution);
in any case, the petitioner, M. M., stated in the constitutional complaint that he
was concerned exclusively with “the principle,” and he would accept the end of his
mandate under Art. 35 par. 1 let. a) of the Constitution (for details, see my
dissenting opinion to Constitutional Court resolution of 1 September 2009, file no.
Pl. ÚS 24/09).
26. It is appropriate to apply this by analogy to what the majority argues is the
violation of “the citizen’s justified confidence in the law and the right to vote
freely,” including the “knowledge … of the term of office”; for the same reasons, a
voter must “be prepared” that he may vote “earlier.”
27. In my opinion, the constitutional content of free political competition (Art. 5 of
the Constitution), which is also claimed to be endangered, was also not affected,
because the voting of the competing parties represented in Parliament (in favor of
the contested Act) was the final outcome of this “competition,” not a denial or
limitation of it. The political parties (just like the deputies) could not assume that
the term of office would necessarily be four years, i.e. that it would not end
earlier, and, of course, that also applies to political parties not represented in
parliament. The procedure of the constitutional act, even if it is “defective”
minimizes the possibility that this led to an extreme deviation from tolerable
limits. Nor is there a factual basis to conclude that this procedure was guided by
arbitrariness, in the sense of intentionally excluding a minority from political
competition.
28. Also, the impermissible arbitrariness of the political majority does not appear
relevant, because the existence has not been refuted of a comprehensible and
substantive purpose for the constitutional act it adopted, based on the claim that
the act can objectively serve to effectively avert the existing social-political crisis
and the danger of an economic crisis.
29. In these circumstances even the objection of “changing the rules during the
contest” cannot shift the review of the contested act toward the material focus of
the Constitution.
30. This is also related to the review – logically with the same result – of the defect
in the constitutional act which the majority of the plenum identifies as violation of
the prohibition on retroactivity. In accordance with the (here, exclusively relevant)
review of the constitutional act in terms of Art. 9 par. 2 of the Constitution, and
the corresponding evaluation of other defects, namely the lack of generality (see
points 15 to 17 above), this objection too must unavoidably be weighed not in its
abstract form (existence), but specifically, in relation to the individual statute, and
we must verify the extent of its actual effect on rights that were acquired earlier
(in public law we can also imagine a “retroactive” regulation that interferes in the
past by providing a higher standard of protection to entitled subjects).
31. However, the majority of the plenum is arguing only broadly, by reference to
general principles, and then only by reference to the abovementioned (addressed
in point 26) “justified confidence in the law and the right to vote freely … with
knowledge of conditions …” which cannot be sufficient to document actual
interference in Art. 9 par. 2 of the Constitution; here the simultaneously presented
ideas on ignoring Art. 35 of the Constitution are – in my opinion – skewed.
V.
32. I grant that differentiating the two “methods” in parts III. and IV. may not
appear sufficiently clear, because it was subsequently – during deliberations on the
matter by the plenum of the Constitutional Court – somewhat erased; nevertheless,
I find that both were preserved in the end (for part III. see the second paragraph on
page 16 and the fifth paragraph on page 16 of the reasoning of the judgment; part
IV. is tied to deliberations on the consequences of the statute being insufficiently
general, as well as its retroactivity). As already stated, these methods differ in
their “order” and the function of Art. 9 par. 2 (in relation to Art. 9 par. 1); in the
first case Art. 9 par. 1 is dominant (see point 6), in the other Art. 9 par. 2 (as
sufficient) (see also the last paragraph on page 18 of the reasoning). The “essential
grounds” set forth clearly attempt to “reconcile” both methods with the conclusion
that Art. 9 par. 1 was violated (after all), but at the same time “at an intensity
establishing interference in Art. 9 par. 2 of the Constitution.” However, this can be
problematic, if the alleged insufficient authorization to issue a constitutional act,
if it is neither an amendment nor supplement to the Constitution (Art. 9 par. 1), is
– according to the majority’s analysis – apparently in and of itself a justification of
the Constitutional Court’s competence to derogate from it. The question logically
arises what place in establishing that competence is held by this further element,
which rests in the “intensity” of interference under Art. 9 par. 2, regardless of the
fact that Art. 9 par. 2 is also understood differently in the reasoning, as not a
necessary complement to Art. 9 par. 1, but, in contrast, in the role of an actor,
capable of ruling out its otherwise arising effects.
VI.
33. Therefore, I summarize, noting the starting points of “review” stated in points
13 and 14, that in this matter, this constitutional act did not relevantly interfere in
Art. 9 par. 2 of the Constitution, and thus there are no reliable grounds for the
Constitutional Court to intervene and derogate. Therefore, the petition from
Deputy M. M. should have been denied.
34. Of course, I do not claim, on the other hand, that the reviewed constitutional
act is otherwise not contestable, defect-free, or constitutionally correct, but in my
opinion that is not the issue.
Dissenting opinion of Constitutional Court judge Jan Musil to the judgment of the
plenum of the Constitutional Court of 10 September 2009, file no. Pl. ÚS 27/09
I disagree with the verdicts and the reasoning of the judgment by the plenum of
the Constitutional Court of 10 September 2009, file no. Pl. ÚS 27/09, which
annulled Constitutional Act no. 195/2009 Coll., on Shortening the Term of Office of
the Chamber of Deputies, and which annulled the Decision of the President of the
Republic no. 207/2009 Coll., on Calling Elections to the Chamber of Deputies of the
Parliament of the Czech Republic.
Pursuant to § 14 of Act no. 182/1993 Coll., on the Constitutional Court, as amended
by later regulations, I am submitting a dissenting opinion, with the following
reasoning:
I. The proceeding on annulling a statute under Article 87 par. 1 let. a) of the
Constitution should never have been opened
1. As I already indicated in my dissenting opinion to the decision by the plenum of
the Constitutional Court of 1 September 2009, file no. Pl. ÚS 24/09, postponing the
effectiveness of the Decision of the President of the Republic, no. 207/2009 Coll.,
on Calling Elections to the Chamber of Deputies of the Parliament of the Czech
Republic, now, too, I state that Deputy M. M. is not a person who had standing, to
submit, together with a constitutional complaint against the Decision of the
President of the Republic on Calling Elections to the Chamber of Deputies of the
Parliament of the Czech Republic, a petition to annul a statute, N.B., a
constitutional act.
2. A petition to annul a statute under § 74 of the Act on the Constitutional Court
can be joined only with a constitutional complaint that the complainant has
standing to file. The institution of a constitutional complaint serves to protect the
complainant’s own subjective fundamental rights or freedoms, guaranteed by the
constitutional order [see Art. 87 par. 1 let. d) of the Constitution of the CR, and §
72 par.1 let. a) of the Act on the Constitutional Court]. The complainant, as a
parliamentary deputy, has no constitutional right to carry out his parliamentary
mandate for a full term of office under all circumstances; on the contrary, the
Constitution itself assumes that a parliamentary mandate may terminate earlier for
a number of reasons, one of which is the dissolution of the Chamber of Deputies
(Article 25 of the Constitution).
3. M. M.’s constitutional complaint contested the Decision of the President of the
Republic that set a definite date for elections. There is no way to conclude how
and why the complainant’s subjective rights should be affected by the fact that the
elections are to be held on the specified dates, 9 and 10 October 2009. It is quite
obvious from the content of the constitutional complaint that its purpose is not
really to cast doubt on the election dates, but to cast doubt on the adoption of
Constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of the
Chamber of Deputies.
4. In my opinion, the procedure chosen by the complainant, i.e. contesting the
constitutional act by joining this petition to the filed constitutional complaint, de
facto circumvents Article 87 par. 1 let. a) of the Constitution and § 64 par. 1 of the
Act on the Constitutional Court, which specifies, in a definitive list, the circle of
persons authorized to submit a petition to annul a statute.
5. The Constitutional Court’s settled case law is consistently based on the
accessory nature of a petition to annul a statute, a petition that “shares the fate”
of a constitutional complaint. IN my opinion the submitted constitutional complaint
is impermissible, and therefore it should have been denied under § 43 of the Act on
the Constitutional Court. The joined petition to annul a statute should have been
denied together with it.
6. If the Constitutional Court accepted a constitutional complaint that should have
been denied as acceptable grounds for opening a proceeding to annul a statute
[under Article 87 par. 1 let. a) of the Constitution], it did not, in my opinion,
respect Article 2 par. 3 of the Constitution, under which “state authority … may be
asserted only in cases, within the bounds, and in the manner provided for by law”
(the Charter of Fundamental Rights and Freedoms says the same thing in different
words in Article 2 par. 2).
II. The competence of the Constitutional Court to review constitutional acts is
disputed, and declaration of this competence is not persuasively justified in the
judgment
7. There have been many years of controversial discussion, both in the Czech
Republic and abroad, about whether constitutional courts are competent to review
constitutional acts. The dispute takes place in the case law of constitutional courts
and in legal scholarship; the same is happening in political science and the political
sphere. It appears that this discussion has not yet been concluded; in fact, one
cannot even say that any trend toward ending the dispute has definitively
crystallized.
8. The Constitutional Court’s judgment assumes this competence a priori, at least
in cases where a constitutional act is contested on the grounds provided in Article 9
par. 2 of the Constitution, i.e. due to violation of a prohibition on changing the
essential requirements of a democratic state governed by the rule of law, or due to
violation of Article 9 par. 1 of the Constitution. In a situation where this
competence of the Constitutional Court is not expressly enshrined directly in the
Constitution, it can be derived only through interpretation, based partly on metajuristic
arguments (historic, axiological, moral, etc. arguments are also used).
Here, given the nature of the matter, the Constitutional Court is “on thin ice,” and
so its interpretation and arguments must be exceptionally persuasive.
9. I do not find this thoroughness and general persuasiveness in the reasoning of
the judgment. I make this statement, even though I myself incline toward a
fundamental recognition of the Constitutional Court’s authority to subject
constitutional acts to review, within the bounds of the criteria provided in Article 9
par. 2 of the Constitution. There is not enough space in a dissenting opinion to
expound in detail on the reasons that lead me to this. However, I expected (in
vain) that they would be set out in detail in the reasoning of the judgment, which
is of a “pioneering” nature in this aspect, because this is the first time in the
practice of the Czech Constitutional Court that this problem is being decided.
10. Insofar as part IV. of the reasoning argues that the Constitutional Court
already, in its past case law “outlined the meaning of the term ‘essential
requirements for a democratic state governed by the rule of law,’” that always
happened only in connection with a review of “ordinary” statutes, not
constitutional acts.
11. One can recognize the argument that, if the requirement of observing the
essential requirements of a democratic, law-based state is not to remain “only a
political, or moral challenge,” there should be a guarantor or arbiter who will
watch over the observance of this rule, and who will also be equipped with
procedural rules for review, or even cassation or other reparatory mechanisms to
correct defects. There is no agreement as to who is to be that guarantor and
arbiter, either in constitutional law scholarship or in the political sphere, in this
country or abroad. There are opinions that, for example, a second chamber of
parliament could be this review entity, or that a referendum could be a suitable
mechanism; there are also skeptical opinions that such a “super-review” and yet
functional mechanism cannot be created at all, because the pyramid of review
mechanisms cannot be built endlessly (the problem arises “who inspects the
inspectors”).
12. As far as I know, the Constitutional Court has never yet considered arguments
that would persuasively prove that it is the Constitutional Court that should or must
be that guarantor and arbiter who watches over the constitutional framers to
ensure that the substantive requirements of a democratic, law-based state are
observed. The present judgment declares a prior that the Constitutional Court has
this competence, without worrying too much about persuasive arguments.
13. With a matter so serious, because it affects a fundamental constitutional
principle, the separation of powers, one can require that this new power of the
Constitutional Court, derived only by interpretation, be applied in practice with
exceptional restraint and restrictiveness. In any case, the Constitutional Court
itself, in a number of its decisions, repeatedly refers to the rule of restraint in
other contexts. Likewise, those foreign constitutional courts that attempt to
promote their competence to review constitutional statutes proceed with great
restraint. For example, the German Constitutional Court, which in its case law
generally proclaims its competence to also review constitutional statutes in terms
of whether they do not violate the material core of the Constitution, has not
annulled a single constitutional statute in the entire period of its existence (since
1949). Moreover, Article 79 par. 3 of the German Grundgesetz defines this material
core of the Constitution much more precisely than the Czech constitutional framers
did in Article 9 par. 2 of the Constitution, so review of whether it is applied
properly is easier in the practice of the German Constitutional Court than it is in
this country. In Austria, as far as I know, the Constitutional Court annulled a
constitutional statute in only one case (VfGH 16.327, 11 November 2001), when it
concluded that the contested constitutional statute violated the material core of
the Constitution in an absolutely flagrant manner.
III. Constitutional Act no. 195/2009 Coll., on Shortening the Fifth Term of Office of
the Chamber of Deputies does not violate the fundamental principles of the right to
vote
14. Part IV. of the judgment’s reasoning contains the statement that, “the
Constitutional Court also included in the material focus of the legal order –
consistently with the doctrinaire opinion – the fundamental principles of election
law (judgment file no. Pl. ÚS 42/2000).” Given that this statement is being
reproduced right now, in connection with review of Constitutional Act no.
195/2009 Coll., it could lead some readers of the judgment to the interpretation
that the subject of the presently reviewed constitutional statute are the
fundamental principles of voting rights. Therefore, I consider it appropriate to add
a “preventive” note that I would consider such an interpretation incorrect.
15. The fundamental principles of voting rights must undoubtedly be considered to
include the principles set forth in Article 21 of the Charter (in particular
universality, equality, and the secret ballot). In contrast, the rule that a term of
office cannot be shortened, is not among the fundamental principles of voting
rights.
16. Constitutional Act no. 195/2009 Coll. is also not inconsistent with the
requirement stated in Article 21 par. 2 of the Charter (“Elections must be held
within terms not exceeding the regular electoral terms provided for by law.”). This
rule undoubtedly prohibits only extending an electoral term, not the possibility of
shortening it.
17. For completeness, one can state that the cited judgment, file no. Pl. ÚS
42/2000, concerned review of the proportional representation model of elections,
i.e. a matter of a completely different nature than shortening the term of office of
the Chamber of Deputies; no analogies can be drawn with the present case.
IV. Passing Constitutional Act no. 195/2009 Coll., which does not meet the
requirement that a statute be general, is not a violation of the essential
requirements of a democratic, law-based state
18. Part VI./a of the judgment’s reasoning contains the statement: “The
Constitutional Court has repeatedly emphasized that it considers the principle of
generality of a constitutional act to be part of the essential requirements for a lawbased
state.”
19. This claim does not correspond to reality, for the simple reason that the
Constitutional Court has never yet reviewed the constitutionality of a constitutional
act. It has addressed the problem of generality only with “ordinary” statutes.
20. However, even in those cases where the Constitutional Court criticized the
legislature for adopting an “ordinary” statute not containing a general rule, It did
not find a violation of the essential requirements of a democratic, law-based state,
due to which it annulled the statute as unconstitutional, merely in the lack of
generality. It always emphasized that this form of a “non-general” statute is
unconstitutional in the case of the particular statute because it also endangers or
violates another fundamental constitutional right. For example, in judgment file
no. Pl. ÚS 24/04, it emphasize that the statutory provision declaring a certain
unique structure (the weirs on the Elbe River) to be a matter of public interest,
also interferes in the executive branch (makes it impossible to evaluate the matter
in a construction proceeding following procedural principles) and limits the parties’
right to judicial review.
21. I believe that the form of a “non-general” statute is legislatively technically
unsuitable and undesirable, although it is value-neutral in and of itself. It becomes
a violation of constitutionality only if that form really is capable of causing danger
to, or violation of, fundamental rights in the given normative subject matter. The
requirement that a legal norm be general is not, in and of itself, part of the
essential requirements of a democratic, law-based state.
22. This is also supported by the fact that in both Czech and foreign legislation
there are dozens of cases where “ordinary” or even constitutional norms do not
meet the generality requirement and concern a unique matter. As one foreign
example of this we can cite Articles 143b or 143c of the German Constitution
(Grundgesetz). We can also find several cases of unique statutes, sometimes
containing curious formulations like “Mr. X. Y. served the state” in currently valid
Czech law.
23. Deliberating that such cases involve bills of attainder rather than statutes is an
attractive topic in specialized legal literature, but as a relevant legal argument for
the proposition that they violate the essential requirements of a democratic lawbased
state, they fail to convince me.
V. Adoption of Constitutional Act no. 195/2009 Coll. is not a “breach” of the
Constitution
24. I consider less important, though still worth noting, the fact that the judgment
describes the process of adoption of Constitutional Act no. 195/2009 Coll. as a
“breach of the constitutional framework,” a term that could, for the uninitiated
reader, call forth a priori negative connotations (as a brutal, inappropriate
procedure). I consider the use of such expressive terminology to be improper in a
situation where the chosen term is not generally shared by all participants in the
debate, which is still on-going. This manner of conducting a debate, in which,
moreover one of the participants defines the content of a term that is as yet
disputed, is generally criticized. Completely peripherally, and outside
constitutional law argumentation, we can refer to Karel Čapek’s critical
perceptions in his ironic essay, “Twelve Models for Battle by the Pen, or a
Handbook of Written Argument” in the book Marsyas.
VI. No special authorization was needed for the adoption of Constitutional Act no.
195/2009 Coll.
25. Part VI./c of the reasoning, among the substantive grounds for derogation of
the constitutional act, states: The Constitutional Court’s position is that the
validity of a constitutional act comes from meeting all three of these conditions:
the procedural condition, the competence (authorization) condition, and the
substantive condition (consistency with the non-changeable principles of a
democratic state governed by the rule of law).
26. The Constitutional court claims that general authorization to supplement or
amend constitutional acts is provided by Article 9 par. 1 of the Constitution. The
Constitutional Court itself defines what “supplement” and “amend” the
Constitution mean, and concludes that constitutional Act no. 195/2009 Coll. is
neither a supplement nor an amendment, but is something different, described as
“suspending a constitutional norm.”
27. In this case the Constitutional Court is again itself defining the meaning of
certain terms, without that definition being generally accepted. I believe that in
the case of such fundamental decision making as this, the Constitutional Court
should first test whether its chosen definition is generally accepted, or is at least
convincingly explained. For example, I myself think that Constitutional Act no.
195/2009 Coll. is not a “suspension” of the Constitution, but a supplement.
28. The practice of the German constitutional framers also supports the idea that a
different method of interpreting the term “supplement the Constitution” is
acceptable. It too is authorized, by Article 79 par. 1 of the Grundgesetz, only to
“amend or supplement” the express wording of the constitutional text.
Nevertheless, in 1993 and 2006 the German constitutional framers, without
obstacles, adopted completely new provisions of Articles 143b and 143c, which
have no connection to the previously valid text of the Constitutional. Evidently it
considers that action to be a supplement to the constitutional text. The question
arises: why should such an interpretation not be possible in this country as well?
29. The judgment’s reasoning allows that it would be possible, beyond the
framework of an allegedly “general norm of competence,” which it sees in Article 9
par. 1 of the Constitution, to adopt other constitutional acts that would be neither
a “supplement” nor an “amendment” of the Constitution, but it requires that such
cases be based on special constitutional authorization. The judgment also enshrines
the rule that “in the absence of a constitutional authorization to issue
constitutional acts ad hoc, the constitutional conformity of a constitutional act
adopted inconsistently with the constitutionally defined scope of the competence
of Parliament could be established only by protection of the material core under
Art. 9 par. 2 of the Constitution.”
30. I believe that with these claims the Constitutional Court is exceeding its role as
a negative legislature and adopting the competence for positive norm creation by
creating new constitutional rules.
31. I do not agree with the opinion that the legislature (the Parliament) needs
special authorization to adopt any constitutional acts. I also do not agree with the
opinion that Article 9 par. 1 of the Constitution is an authorizing norm.
Parliament’s general legislative (and constitutional framing) powers are enshrined
in Article 15 of the Constitution. Parliament is completely autonomous in the
legislative branch. It may not be limited in any way in these powers; it is limited
constitutionally only procedurally (by the rules set forth for creating norms) and by
material conditions (maintaining consistency with the immutable principles of a
democratic, law-based state), enshrined in Article 9 par. 2 of the Constitution.
Lest I be accused of giving the constitutional framework the power to change
winter into summer, I will add, for completeness, that even the constitutional
framers are, naturally, also limited by the laws of nature and common sense.
32. Parliament’s sovereign and autonomous status follows from its strong
democratic legitimacy, from the fact that it is the representative of the citizens of
the Czech Republic, who are the highest sovereign in the democratic state. I
consider the requirement that the constitutional framers need general or special
authorization, which it would grant to itself, for the creation of any constitutional
acts, to be illogical nonsense.
VII. The adoption of Constitutional Act no. 195/2009 Coll. was not barred by the
prohibition of retroactivity
33. The judgment contains a categorical claim that Constitutional Act no. 195/2009
Coll. was in consistent with the prohibition on retroactivity. It sees retroactivity
primarily in the fact that this constitutional act sets a new rule for dissolving the
Chamber of Deputies, which did not exist at the time when the citizens elected
their deputies. This allegedly “retroactively set the conditions for exercising voting
rights (active and passive). The presumptions on the basis of which the voters
decided in the elections to the Chamber of Deputies were changed with retroactive
effect.” (part VI./b of the judgment’s reasoning).
34. I disagree with this claim. I state that the constitutional law issue of the
retroactivity of laws is immensely complicated, and a dissenting opinion does not
give me sufficient space or time to present comprehensive arguments. Czech, and
especially foreign, specialized literature contains hundreds, perhaps thousands, of
monographs and treaties on this question, concerning hundreds of cases from
general and constitutional courts. There is no opportunity here to reproduce them,
even briefly.
35. Therefore, I will limit myself merely to a concise statement: There is no
monolithic concept of retroactivity that would authorize the categorical
declaration of universal claims. There are several kinds of retroactivity (true,
false), each of which leads to different consequences. Applying the prohibition on
retroactivity differs according to the legal area in which the prohibition is applied:
It is different in public law (constitutional, criminal …), different in private law
(civil, commercial), and different in substantive or procedural law. Today
application of this institution is strongly influenced by the case law of the European
Court of Human Rights and the European Court of Justice.
Numerous exceptions to the prohibition on retroaktivity are recognized.
36. Current theoretical and judicial views of these problems are unsettled and
controversial. Perhaps the least confusion and highest degree of agreement exist in
criminal law, where the impermissibility of retroactivity in this country is expressly
regulated in Article 40 par. 6 of the Charter. However, even here there are
exceptions to this prohibition (e.g., retroactivity is allowed in a situation where it
is more favorable for the perpetrator (retroactivity in mitius)). Even here,
however, there is no agreement on a number of things (e.g. retroactivity of the
period of limitations, etc.). This question is relatively thoroughly, though far from
unambiguously, clarified in civil law, where the new institution of “legitimate
expectations” is gradually being implemented.
In the area of constitutional law, the problem of the prohibition on retroactivity
has been addressed relatively little, and it is difficult to reach social consensus on
this area.
Rather ironically, I can raise one curious question: Could permitting early elections
to the Chamber of Deputies be seen as a thing that is advantageous for the citizens
of the Czech Republic? Could we not allow an exception to the prohibition on
retroaktivity here on in mitius grounds?
I believe that this judgment has treated this complicated issue very lightly, which
many people will find difficult to tolerate.
37. It is a question whether the prohibition on retroactivity of norms, as the
judgment relies on it, can be raised above the most fundamental act of
representative democracy – the ability to test the degree of legitimacy of political
representation in democratic elections. Let us remember that even in the interim
the voter remains the decisive subject, whose will is the only source for the
legitimacy of political power, and not merely an object observing it from the side.
VIII. Closing Comments
38. I cannot omit a reminder that in this case the Constitutional Court did not apply
the proportionality test, which it otherwise applies abundantly.
39. One can also pose the question: Will the damage caused by annulling this
constitutional act not be much greater than the alleged damage that our
constitutional system suffered by its adoption? Can we, in this case, really permit
application of the principle fiat iustitia, pereant mundus (let the world perish, as
long as justice prevails)? Will it not, in this case, be not justice that prevails, but –
lawyers?
40. Did the Constitutional Court think through the fact that by posing the problem
of retroactivity as one of the essential grounds for annulling this constitutional act
will, for the entire term of office, petrify the existing regulation of the alternatives
for shortening the term of office? I do not wish to raise premature concerns, but I
believe that the Constitutional Court has opened the door for questioning any
future regulation (even if the new regulation is general) through an individual
constitutional complaint, not only for a deputy, but perhaps even for any voter.
For all these reasons I believe that the petition from Deputy M. M. should have
been denied.