Volume 8 Number 3

Summer 1999

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Czech Republic - Czechs are presently considering revisions to the Constitution that would increase the likelihood of stable parliamentary majorities and would grant the government greater decree powers. Two successive, minority governments have presided over a deepening economic malaise, convincing many that the republic needs an electoral formula that yields stability. The economic malaise, however, is much more the result of bad policy than of minority government. Reform of the electoral system was a key element of the opposition agreement, signed in July 1998 by the Czech Social Democratic Party (CSDP) and the Civic Democratic Party (CDP). Meanwhile, the government's failure to propose and implement the necessary legislation for European integration has compelled it to consider using decree powers to implement the acquis communautaire the mass of regulations all EU member states must incorporate into their domestic laws. Quick passage of the acquis would provide some damage control to the Czech Republic's reputation as the laggard among the five states seeking admission to the EU. Of course, integrating EU legislation into domestic Czech law will neither restructure enterprises nor reform the public administration.

While these two issues are at the center of Czech constitutional politics, several other dilemmas leave the impression that the current government, dependent on a parliamentary minority, is quite overwhelmed with governing and is too weak to act. These issues include continuing pleas by local officials in Usti nad Labem to build a wall around a Romany apartment complex, the ongoing dispute with Austria over the construction of the Temelin nuclear reactor, and disagreement over reform of the public-administration system. Discussions of a change of government abound as Czechs look for a way out of the current reform stalemate.

Between 1996 and 1998, the political weakness of the CDP-led minority government intensified the economic crisis that erupted in 1997. CSDP now leads a similarly incapacitated, center-left minority government. Many Czechs believe that animating the economy requires a government with greater support in parliament. But the various political parties are locked in a struggle for political power, and several party alliances are simply considered inconceivable by parliamentarians. CSDP will not ally with the Communist Party of Bohemia and Moravia (CPBM), because one wing of CSDP refused, as did many of the CSDP voters. CPBM opposes Czech membership in NATO and the EU and includes in its ranks many former communist hardliners. But its popularity rating has reached 15 percent, mostly on the strength of defections from CSDP. The public, to be sure, has grown tired of Zeman and Klaus dividing the spoils of power between them while making no headway on improving the economy. In addition, no right-wing party, clearly, will ally with the Communists (CPBM) or the Social Democrats. The only party on the right willing even to consider an alliance with the Social Democrats, the Christian Democratic Union People's Party (CDUÐPP), elected a new leader in May, Jan Kasal, who wants his party to remain firmly on the right.

In late May 1999, the leading parties CSDP and CDP agreed to consider separately and simultaneously a set of proposals to amend the electoral law to favor larger parties. These proposals are now under review by the leadership of both parties and their parliamentary groups. Because the public chafed at the idea of increasing the electoral threshold for parliamentary representation from 5 to 10 percent, expanding the number of districts is being considered. At present, the Czech Republic is divided into eight electoral districts, with 25 deputies chosen in each district. One new idea would increase the number of districts while reducing the number of deputies elected in each district, thus requiring more votes in each district to elect a single representative. If the number of districts were increased to 36, as proposed, with five or six representatives per district, a party would have to win between 17 and 18 percent of the vote in at least one district to gain representation in parliament. If the total number of deputies in the 200-member parliament were further reduced to 162, as has been proposed, then capturing 20 percent of the vote would be required. Absent any party mergers, such an electoral formula would effectively eliminate representation for the smaller right-wing parties, including Freedom Union (FU), CDUÐPP, Civic Democratic Alliance (CDA), and Democratic Union (DU). The big winners would be the two largest parties and the Communists. CDP would pick up a large proportion of the voters on the right, but CSDP would probably be weakened because of its inability to ally with the Communists. Strangely, CSDP leader and prime minister Milos Zeman supports the plan. Only the deputy chair of parliament, Petra Buzkova, has had the sense to call for a smaller increase in the number of districts, to 14, to correspond with the number of new local administrative regions, which will be created next year. The final outcome of this debate remains uncertain.

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The government's incapacity not only has harmed the economy but also has stalled progress toward EU accession. Deputy Premier Egon Lansky, in charge of overseeing the harmonization process, has offered to resign if the EU issues another negative report on Czech progress, as it did in October of last year. The government simply cannot muster the votes in parliament to pass accession legislation. Neither can its ministries prepare such legislation on schedule. The accession process is, therefore, moving slowly: in June, talks on transport and industry entered the final stages, and the government delivered to the EU its national plan of preparation for accession and harmonization by 2003. But this was not enough to overcome the backlog of legislation threatened by Euroskeptic deputies from CSDP, CDP, and CPBM.

In a striking example of the depth of the political frustration, in June, the CSDP government proposed a constitutional law that would have allowed the government to pass EU accession legislation by decree. (According to Art. 9, the Constitution may be amended or altered solely by constitutional laws. Article 78 of the Constitution permits the government to pass decrees but only for the execution of a law and within its limits.) The law also would have allowed the government to send Czech soldiers abroad without consulting parliament and unambiguously placed EU legislation and international agreements above Czech sovereignty. The law won support from 116 deputies of 183 present, just four votes shy of the two-thirds majority needed to pass a constitutional law (Art. 39). The opposition CDP lobbied vigorously against the legislation and won. President Havel noted that the government did not really want to submit the law and would try other means. But the whole episode did not speak well of Czech democracy, or at the least its efficiency. Havel echoed the general sentiment when he later called for a self-confident majority government.

EU relations have further soured over the Czech government' decision, in May, to go ahead with the final construction of the Temelin nuclear plant, near the border of nuclear-free Austria. The Austrian government responded by drawing up an action plan to prevent construction. Opposition from antinuclear activists, on both sides of the border, continues. Austria has sought to bring EU pressure to bear with some success. The European Parliament recently passed a non binding resolution calling on the Czech Republic to halt construction. While the EU would be hypocritical to hold up Czech membership over the nuclear issue t has its own fair share of nuclear states Temelin is symbolic of the Czech Republic' current vulnerability in international relations.

An even greater problem, and another international scandal, is the wall on Maticni Street in the north Bohemian town of Usti nad Labem. Local authorities have approved construction of a fence that would cordon off an allegedly noisy group of Romany squatters in an apartment complex from their non-Romany neighbors. The wall builders have the explicit support of the respectable right-wing parties at the local level and the tacit support of CDP at the national level. In May, the government made the decision to prevent construction of the wall through an order of the district government. But the district government, as it turns out, does not have authority in this case. Therefore, finding a solution lies with the national parliament. The so-called wall vote is turning into a symbolic issue dividing right and left, with most politicians wishing they did not have to come down on either side. Meanwhile, President Havel has proposed an alternative plan that would involve building a police station in the neighborhood as well as measures that satisfy the concerns of both communities.

Two major reform projects pertaining to the judicial system and regional public administration are also in the works. Justice Minister Pavel Rychetsky has proposed changes that would give greater standing to district-level courts, thus relieving the burden on the regional courts, which currently face large caseloads and long delays. He would also force quicker resolution of debtor proceedings by forcing alleged debtors to respond with evidence, within 30 days, to complaints by plaintiffs. Rychetsky is also planning to propose bankruptcy legislation inspired by the US model. Few of these needed innovations seem likely to pass in the current parliament, however.

Reform of the regional public administration faces similar complications. A 1997 constitutional law, fulfilling a mandate of the Constitution, divided the Czech Republic into 14 administrative regions, effective January 1, 2000. Regional assemblies and governments are scheduled to begin operations on January 1, 2001. Elections are now slated for November 2000, but numerous problems have arisen. First, the opposition has criticized the Ministry of Interior, led by Vaclav Grulich, for moving too slowly in the establishment of regional bodies. Second, 13 bills are still needed to introduce new regional and local governments and to define their relative competencies and functions. The ministry is aiming to prepare such legislation by September, but it, too, seems unlikely to pass easily. Third, increasing the number of regions has drawn criticism from the EU, which favors stronger, more economically and politically viable regions. Former premier Vaclav Klaus, whose government finally approved the public-administration law, opposed strong regions. In fact, he would have preferred to have done away with regions altogether. At this point, the Czech Republic's hobbled administrative reform will go into effect with little public support from any side. The regions, which are too small, will join the ranks of other institutions of diminished legitimacy, the most important example of which is the Senate, whose public- approval rating recently declined to 15 percent.

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On February 3, the Constitutional Court issued decision No. Pl. US 19/98 responding to an appeal submitted by a Supreme Court justice. (According to Art. 95.2 of the Constitution, should a court come to the conclusion that a statute that should be applied in the resolution of a matter is inconsistent with a constitutional act, it shall submit the matter to the Constitutional Court.) The submission requested that the Court review Arts. 269 and 270 of the Criminal Code and Art. 22.1 of the Law on the Military, specifically, the provisions governing the failure to perform obligatory military service. The present legal system grants a person the right to refuse military service if it is contrary to his conscience or religious conviction, in which case the individual must apply for work in the civil service. Articles 269 and 270 of the Criminal Code provide for the prosecution of an illegal refusal to perform military service. Article 269 sets out a punishment for a person who intends permanently to evade service; Art. 270, for a person who unintentionally fails to perform service. Article 22.1 of the military law spells out five possibilities for discharging a person from military service; the crime of evading military service is not mentioned. In his appeal, the Supreme Court justice argued that these provisions do not prevent authorities from repeatedly prosecuting a person for evading military service. However, this issue had been resolved by a number of Constitutional Court decisions where such a practice was declared contrary to the principle ne bis in idem (no repeated punishment for the same crime) and was, therefore, unconstitutional. Thus, a situation has been created where the law in force is contrary to Constitutional Court case law. According to the appeal, the current practice leads to an insecurity about rights and obligations and is thus contrary to basic principles of the rule of law.

In its recent decision, the Constitutional Court held that the provisions mentioned in the submission were not unconstitutional per se. Although the situation created by the above-mentioned legal provisions was less than perfect, there was still enough room for authorities to apply the law in a manner that would not contradict constitutional principles. The Court pointed to its previous case law on this matter and refused to hear the appeal.

The appeal had aimed to terminate the war between the courts, between the Constitutional Court and Ministry of Justice, on one side, and the Supreme Court and ordinary courts, on the other. In five similar cases, the Constitutional Court had issued a prohibition on repeated prosecution, according to Art. 269 of the Criminal Code, arguing that it was contrary to the meaning of the provision that provides for prosecution of those who have refused to enter military service permanently. Logically, if a person once expressed a permanent refusal to enter military service and was then punished for it, any further prosecution of the same individual on the grounds of the article was prohibited. Notwithstanding the Supreme Court and ordinary courts, state and military prosecutors argued that they have to apply valid laws. In a number of cases, the courts stated that as soon as a sentence on the crime of evading military service enters into force, it terminates the committing of a crime. When a person who has already been punished refuses to enter military service, a new crime has been committed and must be punished again. This theory is supported by principles regulating termination of crimes in the Criminal Code and the Code of Criminal Procedure. As a result of this dispute, the Constitutional Court repealed decisions of the competent courts and sent them back for further proceedings. In two of these cases, the Ministry of Justice was involved after submitting a complaint for violation of the law. In reaction, two Supreme Court justices declared that it would be contrary to their conscience to change their previous decision and resigned from the case.

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