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Constitutional Court troublingly political

  10:53

The Constitutional Court’s blocking of austerity measures sparks claims it is acting like a ‘third chamber’ of Parliament

Ústavní soud. Ilustrační foto. foto: © IlustraČeská pozice

With the slimmest possible majority of nine votes against six, the Constitutional Court sided with the Social Democrats (ČSSD) on March 14, agreeing to annul a set of austerity measures that from Jan. 1 introduced changes to sickness benefits, child bonuses and social security. Since it did not ascertain whether the content of the law was in accordance with the Constitution, the court annulled it for procedural rather than material reasons. To nullify a law, the court requires a “qualified majority” of nine votes, as opposed to the simple majority of a nine-justice quorum needed for most cases.

The government of Petr Nečas (Civic Democrats, ODS) last autumn pushed 18 amendments through Parliament based on a “state of legislative emergency.” A majority of judges, however, found this was unconstitutional. The Constitutional Court ruling drafted by Court Vice President Eliška Wagnerová is also accompanied by the divergent stances of six constitutional judges, and many of the reservations in their dissents will certainly resonate with those who are of the opinion that the Constitutional Court is acting like a third chamber of Parliament.

Historic reminiscences

A similar opinion was expressed roughly 10 years ago by President Václav Klaus, who was then chairman of the Chamber of Deputies and ODS party leader, when at the instigation of then-President Václav Havel the Constitutional Court sank an amendment to the election law prepared as part of the Opposition Agreement, which let the ČSSD rule with a minority government. The amendment proposal clearly favored the ČSSD and the ODS over smaller parties and would, if adopted, have led to the de facto introduction of a plurality voting system that would be in violation of the constitution.

Klaus’ putting off signing the Lisbon Treaty for as long as possible was also partly due to the Constitutional Court.

“Topolánek’s knapsack,” a collection of more than 40 amendment proposals the government pushed through the Chamber of Deputies on Aug. 21, 2007, as a single package, also ended up at the Constitutional Court and not just once but three times. And the Senate, in which the then-governing coalition of the ODS, the Christian democrats (KDU-ČSL) and the Greens (SZ) formed a majority, did not even discuss the “knapsack” to ensure that the road toward the Castle and the president’s signature would be as quick as possible. Now, talking about Klaus – his putting off signing the EU Lisbon Treaty for as long as possible was also partly due to the Constitutional Court, as it was obliged to look into two complaints put forward by senators of the ODS who feared the treaty was unconstitutional.

And it was the Constitutional Court, which on the basis of a complaint of then-Parliamentary Deputy Miloš Melčák, prevented elections planned for October 2009 from being held, delaying them for six months. During that half year, the ČSSD and the ODS ran out of steam, enabling the TOP 09 and Public Affairs (VV) parties to redraw the country’s political map. And, therefore, despite the Constitutional Court finding it unpleasant to do work on behalf of politicians — as its chairman Pavel Rychetský claims — the venerable institution sometimes indeed becomes a “third chamber of Parliament” because it has to rule on matters that are downright political.

The opinions of the judges

The last time the Constitutional Court was confronted with a political matter was last Monday when it had to rule on a ČSSD complaint accusing the government majority of extreme willfulness with how the austerity package was passed. The first reading of the proposals including the general discussion was held on Oct. 5 last year, which the current center-right coalition of the ODS, Top 09 and VV perceives as adequate. At the end of that month, however, municipal and senate elections were held — and because cuts are never popular, the second debate on the package took place after these elections.

The government coalition is still adamant that it did not abuse the state of legislative emergency.

On Nov 2, the opposition obstructed proceedings prompting the government to withdraw its package only to put the draft before the Chamber of Deputies again, but this time with the request to discuss it during a special chamber session in a state of legislative emergency. The special session was summoned by Chamber of Deputies chairwoman Miroslava Němcová (ODS) on that same day. The package was adopted by the chamber with a majority of 108 coalition votes on Nov. 2 and passed in the Senate (still in its old composition from before the elections — before the ČSSD could assume its current dominant position in the chamber) on Dec. 12.

The government coalition is still adamant that it did not abuse the state of legislative emergency, asserting that if the package was not passed this would have resulted in a financial setback of several billion Czech crowns. Such an interpretation is possible, and some of the six dissenting constitutional judges adopted the government’s stance.

Judge Stanislav Balík is, moreover, of the opinion that where it concerns reviewing economic laws the Constitutional Court should exercise restraint. Judge Vladimír Kůrka, on the other hand, stresses that the Constitutional Court should only in exceptional cases intervene in parliamentary procedures in “materially comprehensible and convincingly indisputable” situations.

And according to Judge Ivana Janů, this rather a matter of a failing legal and political culture and on the human level a matter of plain human decency which concern the government majority as well as the opposition. If we look at the television transmission of the current session of the Chamber of Deputies then I suppose we would perhaps concur with Judge Janů.

The essence of the problem

The essence of the problem is, however, touched upon by the majority ruling of the Constitutional Court, which departs from the premise that in a democratic environment Parliament is not an “organ of the majority.”

First Republic President Tomáš Garrigue Masaryk once said that democracy is discussion.

“[It]  is based on the free exercise of the mandates of all its members, on the equality of its members (as all its members are representatives of the people) further on the freedom of expression of all and on the freedom of parliamentary debate and this irrespective as to which political grouping or current of opinion the individual members belong,” the ruling stated.

First Republic President Tomáš Garrigue Masaryk once said that democracy is discussion. Holding a political debate is naturally more bothersome than, for example, pushing through one’s intentions using a “state of legislative emergency.” This is not just to goad the current government. When current acting ČSSD leader Bohuslav Sobotka wanted to save employee benefits he also abolished the taxation of these benefits in “a state of legislative emergency” on March 2 last year.

It may be worth considering a further specification of the rules of procedure of both chambers of Parliament, if only to make sure that the Constitutional Court does not need to annul laws with immediate effect because of procedural errors. This time around it still made its decision with a merciful reprieve.