Niekonstytucyjna ustawa konstytucyjna. O precedensowym wyroku czeskiego Sądu Konstytucyjnego

• Authors: Koudelka Zdeněk

Title variants

EN

Unconstitutional Constitutional Law: a Landmark Decision of the Czech Constitutional Court

• Languages of publication: PL

Abstracts

EN

In September 2009 the Constitutional Court of the Czech Republic abolished a constitutional act although it was enacted in the required procedure of a qualified majority of votes in both chambers of the Czech Parliament. The disputed constitutional act shortened ad hoc the current parliamentary term of the Chamber of Deputies, opening the way to pre-term elections which were to break the impasse in the parliamentary powers’ configuration. The Court held that the constitutional law of such content is in the rule of law system unacceptable although in the past Czech constitutional practice such solution was already adopted. Abolishing for the first time in its history a constitutional act, the Czech Constitutional Court has crossed the Rubicon – has gone beyond the traditionally understood role of the constitutional jurisdiction which is to protect the constitutionality of law at the level of norms of a lower rank than the constitution. The critical analysis of the judgment and its justification leads the Czech author to the conclusion that abolition of the constitutional act which was adopted in a correct procedure of a qualified majority of votes contradicts the principle that Constitutional Court is legally bound by constitutional acts. Invalidation of a constitutional act would be permissible only if there have been some defects in the adoption procedure. The Czech Constitutional Court had no right to invalidate the constitutional act the content of wich opened the way to pre-term elections which would be universal, equal, direct, conducted by secret ballot and would ensure freedom for competition among political parties. Permissibility of abolishing constitutional acts because of their content by Constitutional Court would need to be explicitly regulated in the constitution. Analogically to the requirement of a qualified majority of votes while adopting a constitutional act, the constitution would need to introduce the same requirement while deciding by judges about abolishing such act.

• Publisher: Fundacja „Utriusque Iuris” i Uniwersytet Jagielloński
• Journal: Forum Prawnicze
• Year: 2011
• Issue: 1 (3)
• Pages: 46-55

Contributors

author

Koudelka Zdeněk

• Katedra Prawa Konstytucyjnego i Politologii na Uniwersytecie Masaryka w Brnie