Tuesday, September 01, 2009

An unexpected constitutional crisis in Czechia

I would bet that the situation will be clarified pretty soon but the news from the Constitutional Court of the Czech Republic whose headquarters are located in the town of Brno, Moravia sounds pretty shocking.

All the big and not-so-big parties have begun the campaign for the early elections on October 9th-10th, 2009. Except that the Constitutional Court has just decided that early elections and all the laws that allow them - and that shorten the mandate of the current Parliament - are unconstitutional, despite the fact that the bill about the early elections has been adopted as a constitutional bill.

What happened?

Mr Miloš Melčák was elected as a deputy for the social democratic party in 2006 except that much like a dozen of similar deputies in recent years, he has "betrayed" the bulk of his party by allowing the center-right government to exist. Obviously, he was kicked out of the social democratic party. The "traitors" are being punished in a straightforward way: the parties won't include them on their list so they will lose their job and feeding troughs right after the following elections.

Of course, Mr Miloš Melčák decided that any new elections that would remove him from the Parliament are bad, so they must be unconstitutional. He sent a complaint to the Constitutional Court. In a stunning development, the court has ruled that Mr Melčák is right today. Congratulations. :-)

We are learning that according to the basic charter of the human rights, Mr Melčák and others who are at risk enjoy the right for an "uninterrupted execution of a public appointment". They can't be removed by anyone, the court claims! ;-) The communist party has used a similarly "uninterrupted" definition of democracy for four decades.

The court believes that the early elections would be an example of an "unacceptable change of the critical attributes of a democratic rule of law" - wow - and it's such an important stuff for the court that the court - except for two "dissenters" - thinks that the early elections can't take place before the court publishes its final verdict about the complaint! ;-) So the elections have been postponed indefinitely.

Now, this is obviously a strong stuff.

On one hand, it's good that the constitutional court is trying to verify things, including the decisions that no one in the Parliament dares to doubt. On the other hand, it's kind of crazy that it considers the early elections a "brutal violation of the basic attributes of democracy" and that it claims to have the right to judge which constitutional bill is more important than the other ones.

Even if there were an inconsistency between the basic charter of human rights and freedoms on one side and the bill that declares the early elections, both of them are constitutional bills and the constitutional court would have to operate within this possibly perceived inconsistency.

I think that it's clear that the Parliament has the "moral" right to dissolve itself, via the expected steps involving the President, and the early elections are the obvious democratic solution (or an attempt for a solution) of the otherwise "unsolvable" situation. The interpretation of the "uninterrupted execution of a public appointment" is bizarre, speculative, reminiscent of the undemocratic regimes, and secondary. But the court is making this strangely interpreted right more important than the right of the citizens - and the bulk of their representatives - to democratically choose a new Parliament which is clearly more important according to basic common-sense understanding of democracy.

It's not clear how they will solve it. The court may try to delay the elections indefinitely - or not. Clearly, the lawmakers should search for a very speedy way to reshuffle the laws so that the complaint will be mute. I am no lawyer but I guess it must be possible to revoke all the laws that were claimed to lead to inconsistencies, cancel or update some paragraphs in the charter that lead to similar inconsistencies, and accept a new bill about the early elections that will be consistent but effectively equivalent to the current one.

Also, I think that the constitution is imperfectly designed if it doesn't allow early elections as a standard procedure. At any rate, the early elections have been considered legitimate for quite some time - and even without a canonical wording in the constitutional "core", we've had some early elections in the past - so the sudden realization that they're unconstitutional is strange.

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