Protecting constitutionality: how is our constitution protected?

The Constitution is the basic legal document of any democratic state. Its main function is to enshrine the basic principles of the functioning of society, the protection of fundamental human rights and freedoms, and the distribution of power between the various branches of the state. In order to prevent arbitrary changes to the Constitution, we have had to gradually create mechanisms to prevent this from happening. At the same time, it was necessary to establish processes by which the Constitution could be adapted to changing social conditions if necessary.

Who contributes to the protection of constitutionalism in the Czech Republic?

In the Czech Republic, several institutions play a key role in protecting constitutionalism. These institutions ensure that the legal order of the state is in line with constitutional principles and that democratic principles are not compromised.

1. The Constitutional Court

One of the most important guarantors of constitutionality is the Constitutional Court of the Czech Republic. This judicial body has the power to review the constitutionality of laws, government regulations and other legislation. If it finds that a particular law contravenes constitutional principles, it can annul it.

The 2009 decision of the Constitutional Court in the Melčák case (Pl. ÚS 27/09) represents a key moment in the history of Czech constitutional justice. At that time, the Constitutional Court struck down the law on shortening the electoral term of the Chamber of Deputies, which was intended to enable early elections to be held. The Court stated, somewhat simplistically, that even constitutional laws must not interfere with the basic principles of a democratic state. This decision made it clear that this Court has the power to protect the fundamental values of the Constitution even against constitutional laws.

However, this activity is ongoing and most often focuses on specific constitutional review in particular human stories. Most recently, now in mid-2024, for example, the Court has taken up a case involving a declaration of guilt. This involved a defendant who pleaded guilty to theft, not knowing that his plea deprived him of the ability to appeal the court’s decision and, therefore, his sentence. He therefore lodged a constitutional complaint, arguing that he had not been sufficiently advised of the consequences of his guilty plea. The Constitutional Court agreed with him , referring to the right to appeal as part of the right to a fair trial.

2. The President of the Republic

The President of the Republic plays an important role in the protection of constitutionality, primarily through his veto power. The President may refer a law back to Parliament for reconsideration if he has doubts about its constitutionality or its consequences. Although this right does not apply to constitutional laws, it is nevertheless an important tool in the protection of constitutional values.

The President is also the Head of State and his actions and decisions should be in accordance with the Constitution. An example of problematic presidential action in this area is the case of former President Miloš Zeman’s refusal to appoint one of the ministerial candidates proposed by the Prime Minister. This move sparked a constitutional debate on whether the president can interfere with the powers of the government in violation of constitutional rules.

3. Parliament

MPs and Senators are obliged to act in accordance with constitutional values when making laws. If they pass a law that would be unconstitutional, the Constitutional Court can intervene and strike it down. For example, it ruled that an amendment to the electoral law that favoured large political parties was unconstitutional and struck down the relevant parts of the law.

Can the constitution be changed?

Yes, but only under certain conditions. The Constitution of the Czech Republic itself contains a strict procedure for amending it. According to the Constitution of the Czech Republic, constitutional amendments can only be made by constitutional law, which must be approved by a three-fifths majority of all deputies and a three-fifths majority of senators present. This mechanism ensures that changes to the Constitution cannot be made without a broader political consensus, thereby minimising the risk of political power being abused to make expedient changes to the constitutional order.

An important example of constitutional change was the introduction of direct election of the President in 2012, when the Constitution was amended. This step was the result of a long political process, which required reaching a consensus between different political parties.

Do you know the constitutional laws?

In addition to amendments to the constitution itself, constitutional laws can be passed to regulate specific areas. These include, for example, national security or the electoral system. The process for passing constitutional laws is similar to that for constitutional amendments and requires a three-fifths majority in both houses of parliament.

An example of a constitutional law is the Law on Security of the Czech Republic, which regulates the principles of national defence in crisis situations. This law allows for the declaration of states of emergency, such as a state of emergency or a state of war, and sets out how the state should respond to threats to its security.

Some changes are simply not possible

While amending the constitution is possible through a constitutional law, there are certain limits that protect the basic principles of a democratic state from arbitrary interference.

The so-called substantive core of the Constitution includes the basic principles that form the essence of the democratic rule of law. These principles cannot be changed even by a constitutional law. These principles include the protection of fundamental rights and freedoms, the separation of powers, free elections and the rule of law. The Constitutional Court has repeatedly confirmed in its case law that amendments to the Constitution must not affect the substantive core of the Constitution. As an example, again the decision in the Melčák case, where the Court stated that even a constitutional law must not undermine the fundamental principles of a democratic state.

In addition to material limits, there are also formal limitations. These ensure that constitutional amendments are made in accordance with the prescribed procedure. These formal limits include, for example, the requirement for a constitutional amendment to be approved by a three-fifths majority in both houses of parliament, which again ensures that constitutional amendments cannot be implemented without broad political support.

Another important formal limit is the prohibition of retroactivity of constitutional amendments, i.e. the rule that constitutional amendments cannot have retroactive effect. This means that new constitutional norms cannot be applied to events that occurred before their adoption.

How does it work abroad?

In the United States, the process of amending the Constitution is very difficult. To be successful, a proposed constitutional amendment must be approved by two-thirds of both houses of Congress and then by three-quarters of the states. Since 1787, the U.S. Constitution has been amended 27 times, a testament to its stability and rigorous amendment process.

In Germany, on the other hand, the constitution is protected by the so-called “perpetuity clause”, which prohibits any changes to the basic principles of a democratic state. Changes to the constitution require a two-thirds majority in both the Bundestag and the Bundesrat, which ensures a high degree of stability in the German constitutional system.

TheUK does not have a written constitution in the traditional sense. Constitutional principles are enshrined in various statutes, court decisions and conventions. This means that the British legal system is more flexible, but at the same time more vulnerable to interference from political power.

Conclusion

The protection of constitutionalism and processes of constitutional change are key elements of any democratic system. In the Czech Republic, the constitutional system is designed to protect fundamental democratic principles and prevent arbitrary changes to the constitution. The Constitutional Court, the President and the Parliament have key roles in ensuring this protection. Comparisons with other countries show that while the processes of constitutional change may differ from country to country, the aim is always to protect the fundamental values of a democratic state.