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

In September 2009 the Constitutional Court of the Czech Republic abolished a constitutional act although it was enacted in the required procedure of a qualifi ed 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’ confi guration. 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 fi rst 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 justifi cation leads the Czech author to the conclusion that abolition of the constitutional act which was adopted in a correct procedure of a qualifi ed 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 qualifi ed 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.

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