The Czech Constitutional Court in times of populism: From judicial activism to judicial self-restraint
Zdenek Kuhn
The legal design of the Czech Constitutional Court and the rise of populism in Czech politics
The Czech Constitutional Court (CCC) is one of the strongest constitutional tribunals anywhere in the world. Its design is framed after the German model of the Federal Constitutional Court. It combines, on the one hand, classical constitutional review (review of the constitutionality of legislation, both concrete, initiated by general courts or the parties, and abstract, initiated by legislators), and on the other hand, a review of the constitutionality of decisions made by public authorities, including general courts (constitutional complaints).
This makes the CCC not only the only Czech court capable of annulling legislation because ofits unconstitutionality, but also a sort of‘super-supreme’ court, standing in /her above the two Czech supreme courts (Supreme Court and Supreme Administrative Court). Although the two supreme courts technically have a final say on the interpretation of the law, the CCC has a final say on the issue of whether or not that interpretation is constitutional. This provides two different avenues for the CCC. Firstly, it has a comfortable way with which it can dispose of the majority of constitutional complaints (by simply saying that the case does not have a constitutional significance and the CCC has no jurisdiction on interpreting the ‘ordinary’ or ‘simple’ law). In this way approximately 95% of constitutional complaints could be resolved. Secondly, there is always the possibility that the CCC would pick up the case and proclaim it to be of constitutional importance. In this way, the CCC is able to confirm or modify the case law of the general courts. What is a constitutional or an unconstitutional interpretation of‘ordinary’ laws is, after all, ambiguous and provides a substantial leeway for the justices of the CCC to pick up those cases they want to decide on.
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Interestingly, this is exactly the reason why the law on the South African Constitutional Court which originally enjoyed similar powers was amended and the difference between the issue of lawfulness (the domain of ordinary courts) and constitutionality (the domain of the constitutional court) was abolished. See Christa Rautenbach and Lourens du Plessis, ‘Constitutional Court of South Africa’ in Andras Jakab, Arthur Dyevre, and Giulio Itzcovich (eds.), Comparative Constitutional Reasoning (Cambridge University Press 2017) 560.
In this chapter, I intend to subject the CCC to an analysis in view of the transformations it has undergone over the three decades of its existence. My aim will be, in particular, to examine to what extent there has been continuity or discontinuity in its decision-making, taking into account an essential institutional issue which the CCC has faced since the very beginning of its existence. The 15 justices of the CCC are appointed by the President of the Czech Republic, subject to the consent of the Senate, for ten years (renewable). Consequently, the constitutional foundations of the CCC already encompass a significant element of discontinuity: the ‘ten-year’ personnel settings of the court. That is why a major proportion of the constitutional judges is replaced at ten-year intervals (1993, 2003, 2013, 2023, etc.).
As a result of this unfortunately conceived ten-year period, which prevented a gradual replacement of the justices - one-third of the court every three years, for example - the CCC has been subject to regular ‘personnel earthquakes’ throughout its existence. Moreover, literally every President of the Republic ‘models’ the Constitutional Court ‘to his liking’ at the beginning of his mandate. In this regard, the Czech situation differs dramatically from its American archetype. While the latter is also characterized by the co-operation between the Senate and the President, justices arc appointed for an indefinite term in the United States. The incumbent U.S. President thus usually gets to appoint two, exceptionally three, justices out of the total number of nine during his one or two terms in presidential office.
One possible way of maintaining at least some continuity is to have a justice re-appointed, but this is basically unheard of in comparative terms as this would impair the judge’s independence towards the end of his/her mandate. Nonetheless, both President Klaus and Zeman used this option - three justices were thus serving a second term in office during the ‘second’ CCC (2003-2013) and two justices during the ‘third’ CCC (2013-2023, including the Chief Justice).
Moreover, this unfortunate design seems to make the court particularly vulnerable to a rapidly changing political climate and fully dependent on the political ideology of the President of the Republic, and these circumstances can be only partially controlled by the Senate. Between 1993 and 2020, the political landscape of the Czech Republic has changed significantly. The strategics and the nature of presidential appointments have differed, depending on the president in question.
Initially, the first ten years of the Court were defined by the Presidency of Vaclav Havel (1993-2003). President Havel appointed all justices within a few months (most in 1993, with two in 1994), having little trouble persuading parliamentarians to approve his nominees. In fact, in the early 1990s nominations of justices to the CCC took place beyond public attention because only a few people then realized the potentially enormous political impact of the CCC. Moreover, one should not forget the consensus of liberal constitutionalism (and, economically speaking, neoliberalism and a minimal state) which prevailed among the elites of the post-communist transitions
The Czech Constitutional Court in times of populism 97 in the 1990s.[1] The CCC emphasized the primacy of an individual over the state. There was a wide consensus that the new democratic constitutions should restrain the parliamentary majority and the executive branch and ensure adherence to the state’s basic law through its counter-majoritarian functions.
In contrast, conservative President Klaus (2003-2013) was very sceptical of a strong judiciary. Elected to the Presidency by the Parliament after the ‘champion’ of Czech liberals, Havel, Klaus tried to change the course of the CCC. So, he adopted a different strategy; he tried to undermine the court by sending people of mediocre quality to the bench. Indeed, some of his nominees were so awkward, to say the least, that many of them were rejected by the Senate. A very painful process followed, when the Court had a number of vacancies and for some time was even unable to sit in full court.
Although President Klaus was a premature messenger of the subsequent Czech populist policies of the 2010s, his effective strength was undermined by the fact that during much of his presidency the Czech political system remained relatively stable. It was only in the second decade of this century that cracks appeared in the system and new populist parties emerged. That is why the only lasting impact President Klaus had on the CCC was that he opened the bench to a much more diverse judicial body. And despite the President’s strong belief in judicial self-restraint, it was ‘his’ judges who took the Court to a peak of judicial activism (as we will see later in this chapter).
Yet another scenario is that of President Milos Zeman. In 2013 he was a retired politician (a former Prime Minister of the Social Democratic government from 1998 to 2002) who was elected to the presidential office by running an openly nationalist (anti-Gcrman) and xenophobic campaign in the very first direct election of the President in Czech history. In 2018 he was re-elected, this time running a populist anti-refugee campaign. According to many, he was able to shift the Czech political system to an unprecedented level of populism. The end of the classical Czech political system and the rise of new populism was confirmed by the electoral victory of Andrcj Babis (a billionaire and a leader of the ANO movement) to the House of Representatives, who formed his cabinet in 2017 with the silent approval of the Czech Communist Party.
Interestingly, the impact of this political storm on the CCC was very limited. There are several reasons for this. First, the Senate, the upper house of
the legislature, is more resistant to the populist factions than the House of Representatives. This is due to the different electoral systems operating in the two chambers: senators are elected on the basis of the majoritarian system, representatives through a system of proportional representation. The majoritarian system (the winner takes all) effectively reduces political radicalism in the Senate. Even though the House is a much more powerful body, the Senate has effective veto power over the President’s choices for the CCC. The Senate can also block any constitutional amendments or changes. The second reason is accidental and relates to the originally close relations between the President and the Chief Justice of the CCC. Even though President Zeman was able to create the new Court in 2013 to his liking, he voluntarily delegated the selection of new judges to the team of legal experts (the chief judges of both the Supreme and the Supreme Administrative Courts, the Prosecutor General, and especially the Chief Justice, whom the President reappointed to the CCC in 2013). Thanks to his friendly relations with the Constitutional Court’s Chief Justice, Rychetsky (in office since 2003), the President consulted on most of his nominations in advance with the Chief Justice at the beginning of the President’s mandate (2013 and 2014). It appears that many justices appointed in 2013 and 2014 have been the choices of the Chief Justice rather than the President. The Chief Justice preferred legal wisdom over political ideology. It was only when the President realized that the CCC was not functioning in the way he would like that he interrupted his consultations with the Chief Justice. The President made the few remaining nominations after 2016 according to his own political tastes, trying to find nominees who would deliver his political (populist) message. But in this he faced a hostile Senate which refused one of his nominees in Spring 2019.
As I have said, there has been little methodological or doctrinal impact on the Court’s activity in the last ten years which could be plausibly called the impact of political populism. However, I will argue there is at least one such instance of this. In this chapter I intend to pay particular attention to the degree of activism of the ‘first’ CCC in 1993-2003 and the ‘second’ and the ‘third’ CCC in 2003-2013 and post 2013, respectively. I will do so with regard to the two most important functions of the CCC - its reviewing of the constitutionality of legislation (both general and specific) and its reviewing of the constitutionality of judicial decisions (proceedings on constitutional complaints). My argument will be that rising populism has affected the level of judicial activism vis-à-vis the legislature. Populist policies stress that it is the legislature which makes the law, and the Court should not try to change the people’s will. Moreover, this is also a natural reaction to
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The nomination was that of Ales Gerloch, Professor of the Law School in Prague. Professor Gerloch was criticized by some senators for being too close to the President, for being his political ally or even for being virtually his puppet. Gerloch received only 19 out of 64 votes cast, and his nomination failed. See 'Senate Rejects Ales Gerloch’s Nomination to Constitutional Court’ Prague Daily Monitor, 21 March 2019.
The Czech Constitutional Court in times of populism 99 the overtly activist Court at the end of the first decade of this century (see later in this chapter). In this regard, the ‘third’ CCC is historically the most self-restrained tribunal since 1989. In contrast, the level of activism of the CCC vis-à-vis the general judiciary has remained pretty stable throughout the Court’s existence.
The concepts of judicial activism and self-restraint should therefore be defined at this point. I generally understand judicial self-restraint as a strategy on the part of a judge who tends to accept decisions made by other actors when in doubt in hard cases,[2] whether this relates to laws enacted by the legislature or judicial decisions made by general courts. In this regard, a judge exercising self-restraint will usually give priority to values embraced by those who adopted the decision under review, over his/her own values.
- [1] Adam Sulikowski, ‘Government of Judges and Neoliberal Ideology’ in Rafal Mariko, Cosmin Sebastian Cercel, and Adam Sulikowski (eds.), Law and Critique in Central Europe: Questioning the Past, Resisting the Present (Counterpress 2016) 16-31. 2 For example, Judgment of 18 October 1995, no. Pl. ÚS 26/94. 3 In English, see J. Kiihn and J. Kysela ‘Nomination of Constitutional Justices in PostCommunist Countries: Trial, Error, Conflict in the Czech Republic’ (2006) 2 European Constitutional Law Review 183. 4 Vladimir Naxera and Petr Krcál, “‘This is a Controlled Invasion”: The Czech President Milos Zeman’s Populist Perception of Islam and Immigration as Security Threats’ (2018) 12 Journal of Nationalism, Memory and Language Politics 192-215.
- [2] I stress that these must be hard cases of the application of law where there is no consensus in the relevant legal community as to the correct interpretation of the law. 2 It is possible, of course, that a judge will adopt the strategy of self-restraint only because he/she actually agrees with the values behind the object under review, whether it is a law or a court decision. But if a judge can be seen to exercise self-restraint over the longer term, certain conclusions can already be inferred from his/her decisions because it does not seem likely that such a judge would agree with all or most of the acts being reviewed in terms of the values behind them. 3 It makes little sense to protect laws adopted by a non-democratic legislator on equal terms to laws enacted by a parliament genuinely constituted based on the people’s will.
