## Tuesday, February 23, 2021

### Prague's municipal court endorses a freshman, orders in-person learning to be restarted

Every court must have its opinions about what is legal and constitutional

As "citizen" has pointed out, the Municipal Court in Prague decided against a high school where teachers were getting a salary while not fulfilling their duty to teach a student in person (which is what teachers do at most schools not only in Czechia now, as you know). The freshman T.N. has sued the school and won. The essence of the verdict is the judges' opinion that the state of emergency that was started on February 15th (last Monday) is the same as the previous one and whose extension was vetoed by the lower chamber of the Parliament on February 10th.

Gymnázium Na Zatlance, the high school that lost a lawsuit and was ordered to restore the proper education

Because there is no legally valid state of emergency now, the school has no valid justification for not fulfilling its pedagogical obligations.

Now, the prime minister has used a sleight-of-hand by emphasizing that a "fundamentally new" state of emergency started on November 15th, after the regional governors asked the government to extend the state of emergency (a discussion with zero legal implications) despite the lawmakers' veto (according to the prime minister, the state of emergency was "new" and responding to "new conditions" but this is in no conflict with his assertion that nothing changed about the restrictions between February 14th and 15th). The prime minister wasn't too clear why the state of emergency with the same cause and the same justification would be "new". But he must have believed that simply by saying it was "new", the courts would consider it "new": maybe it is because you never enter the same river twice. To say the least, he wanted 10.7 million Czech citizens to believe a story like that and to behave as if the state of emergency had been lawfully extended. According to the law, the government has the right to declare a "new" state of emergency at any moment. The government has to inform the Parliament and the new state of emergency may be later terminated by the Parliament.

OK, I think it is fair to say that judges must unavoidably have mixed opinions whether this continuation of the state of emergency from last Monday is "new". If you focus on the spirit of the law, the state of emergency is morally the same one that was vetoed, it's the exact same old one that was refused by the lawmakers, the exact same arguments would apply on both sides, the lawmakers' decision would have to be the same, and that's why the state of emergency doesn't legally exist since February 15th. On the other hand, if you focus on the law literally, you may argue that the government has the ability to make the situation "new" just by saying that it is "new" (while changing nothing about the restrictions or their justification), so it can restart the state of emergency at any moment, despite the explicit "No" (expressed for the extension for the precisely identical dates) from the Parliament. ;-) With this literal interpretation, the Parliament would be basically powerless (because the government could overwrite it immediately and at any moment). That is why the municipal court described the behavior of the government as a textbook example of "in fraudem constitutionis", i.e. circumventing of the constitutional order.

Now we know that the set of judges who think that the "new" justification doesn't work and that there is no state of emergency in Czechia right now is non-empty. The Prague's municipal court made a very clear verdict. Another court could adopt the pro-emergency interpretation but it is clear that the government has chosen a risky strategy when it decided to "piss around" the Parliamentary veto and it may face many similar lawsuits which it may lose in very many cases.

Now, the opponents of the verdict – a group that is unsurprisingly similar to the supporters of a lockdown in Czechia – usually claim that the Municipal Court of Prague has no right to publish its opinions on whether the "new" state of emergency is consistent with the constitutional order. They should have waited for the opinion of the Constitutional Court and stuff like that, we hear, otherwise they are activist judges. But if you think about it, this theory is completely ridiculous.

Why? Because the constitution, and also the other laws, are an absolutely obvious prerequisite for the work of any court. Any regular court must know the laws and especially the constitution and take them into account in every single lawsuit. And it is taking place, indeed. If regular courts needed to wait for the Constitutional Court's opinion about "what does the constitution say about this situation", they couldn't work at all because every lawsuit depends on what the constitution (and perhaps other laws) say. So taking the laws (and constitution) into account is the business-as-usual of any regular court at all times, not just the business of the Constitutional Court.

If you read the Czech Wikipedia page about our Constitutional Court, you will see that it didn't really exist much of the time. The Czechoslovak Constitutional Court was created in 1921 but remained almost completely inactive during the interwar years. After May 1945 and February 1948, it wasn't restored and only the new 1969 constitution (which also established the Czechoslovak federal state) reintroduced it, and then it was reintroduced in the democratic form in 1991 (and inherited by the separate Czechia and Slovakia). If an opinion from the Constitutional Court were needed in every lawsuit that touches these fundamental issues, the courts couldn't work at all, especially during the times when the Constitutional Court didn't exist (or effectively didn't exist). Also, the Constitutional Court would be constantly overloaded at the times when it does exist. It's simply obvious that unlike constitutions, constitutional courts are just optional and "modern" additions to the system that aren't existentially needed.

So what is the role of the constitutional court? And how does it differ from regular courts? Well, we can read about its powers:

* it can cancel laws that contradict the constitution
* it is employed in arguments that deal with the basic civil rights suppressed by other courts; in these situations, the constitutional court acts as an appeal court that decides after the regular courts have issued their verdicts
* it resolves systemic arguments between various bodies of the government, especially between the regional and central government; about the separation of powers when the organs argue; about the validity of mandates, international treaties, and other things that directly touch the lives of the political VIPs

What the Municipal Court in Prague did today was a verdict about a routine disagreement between a student and his high school ("gymnasium", a traditional liberal arts high school inherited from Austria-Hungary, I also attended one). Neither the student nor the high school were organs of the government or political VIPs so there is no reason to resolve the disagreement in the Constitutional Court because of the identity of the parties; and there is not even a good reason to think that it is about some fundamental civil rights. It's just a mundane disharmony between a kid and a school! Yes, the verdict is derived from an opinion on "whether the government's or Parliament's decision about the state of emergency is more important" but this relationship is indirect and the verdict directly influences the school and the kid, not the government and the Parliament! So it is a textbook example of some stuff that belongs to a regular court. As the judges later emphasized (but legally literate folks like your humble correspondent knew), the verdict only applies to this high school lawsuit and while they touched a more general issue, new lawsuits would be needed to fix the other consequences of the illegitimate state of emergency (e.g. compensations for the shut down shops).

But of course, the school uses the state of emergency in its argumentation which is why the municipal court was obliged to decide whether this justification was correct. And it just wasn't correct according to these judges. These judges have probably had an opinion about the legality of the "new" state of emergency from the very beginning but this was the first time when they were asked and when their opinions mattered! There is absolutely nothing wrong about it. If you wanted to know what judges would say about the state of emergency, you could have asked one earlier. Or you could have asked me: I considered the one-sided extension of the state of emergency to be a farce (which I wouldn't consider as quite legally valid) from the first moment (and I posted comments about that), I just didn't have the courage to sue the government because there could be judges who buy the "new" argumentation.

The court has vindicated my February 14th tweet.

The opponents of this verdict talk about the excessive power given to the regular courts but this is just a pile of BS. This is as ordinary a lawsuit as you can get, one deciding whether or not the school can circumvent its usual pedagogical obligations under certain conditions and with certain excuses. If municipal courts couldn't decide about such matters, they couldn't decide about anything at all!

The actual justification of the opposition against this verdict is completely different. The opponents of this verdict simply don't want the constitution, the normal laws, and the regular courts to affect anything important now (or ever again) because they mentally live in a new system where the authoritarian decisions by the government (and its allied propaganda arms) can trump everything and everyone. The constitution, laws, civil rights, and regular courts no longer play any role for our lives in the understanding of these people. These people have completely abandoned the ideas about the rule of law. Well, the municipal court hasn't. The judges are still doing their work – and they are not just corrupt or mindless servants of the government. They are impartially deciding which side is supported by the laws. Whether there is a legally valid state of emergency in Czechia was a question that mattered for their verdict and their answer was a resounding "no" whether some fans of authoritarianism and of the Covid propaganda like it or not.

Thank God, unlike other countries, Czechia hasn't liquidated its rule of law, the basic constitutional rules and civil rights, and the usual division of powers between the branches of the government yet.

P.S.: This court is on a roll. Soon afterwards, it also canceled some mandatory testing campaigns in senior houses and related things from March 10th etc. (they won't be needed, anyway) which were also derived from the invalid state of emergency. Coronazis are stunned, of course. Note that the Czech Constitutional Court has canceled a government decree that shut down many shops days ago (complaining about the non-existent justification and the arbitrarily list of exceptions; in the proper treatment, they need to actively justify the closure of every type of shop instead), while pointing out that this finding didn't immediately mean that the shops may be opened right now.

P.S. 2: The school that lost the lawsuit tweeted that they won't care about any lawsuit or verdict ordering the restarting of schooling because everyone wants to enjoy 5 more days of vacations and they will only ask their lawyers about the verdict next week. Given the fact that the lawsuit is ultimately about their parasitic behavior and laziness, they have quite some chutzpah to write something so breathtakingly arrogant.