The Prague Post Online: Opinion: A delicate balance

November 22nd, 2008

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A delicate balance

President Klaus, courts, battle for control in turf wars over constitutional decisions
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September 19th, 2007 issue

By Mark Gillis

What would happen if the next U.S. president fired Supreme Court Chief Justice John Roberts?

This is a question I put to U.S. law students visiting Prague recently. Not surprisingly, my question was met with uncomprehending silence, as such a move is inconceivable in just about any Western democratic country.

An exception seems to be in the Czech Republic, where President Václav Klaus attempted to remove of Supreme Court Chief Justice Iva Brožová from office in February 2006.

The Constitutional Court subsequently invalidated Klaus’ directive, but he and other politicians are still attempting to unseat her.

The latest attempt was turned aside just last week, when the court ruled Klaus’ attempt to place his chosen successor to Brožová on the Supreme Court illegal.

To find another country where similar steps have been taken against a judicial official of that stature, one has to look to Pakistan. Pakistani President Pervez Musharraf, a man who came to power in a military coup, recently “suspended” the country’s chief justice.

But, even in a military dictatorship, the rule of law prevailed. When the Pakistani Supreme Court ruled that his decision was illegal, Musharraf accepted the ruling.

Not so in the Czech Republic, where the very day the Constitutional Court invalidated the removal of Brožová, Justice Minister Jiří Pospíšil announced that his ministry would propose a new statute allowing for the removal of chief judges by the justice minister, a plan that was blatantly at odds with the constitutional reasoning the court had just announced.

I was reminded of these events when I read the article “Out of balance” (News, Sept. 5–11 issue) in The Prague Post about the Anna Weiszová case.

That article discusses two highly significant issues relating to the Constitutional Court: lack of respect for Constitutional Court judgments, and the proliferation of “reform” schemes to improve the “effectiveness” of courts (with emphasis on granting the executive branch power to remove chief judges of courts).

The two problems are highly intertwined. The executive branch perceives the need to “reform” the judiciary to make it more “effective,” precisely because it makes decisions the executive branch cannot digest. It is hoped that the reform will produce a more compliant judiciary, i.e., one that does not make decisions so offensive to the executive.

Further, one of the key disputes, about which the executive branch repeatedly refuses to accept Constitutional Court judgments, concerns judgments where the court has declared such executive branch interference unconstitutional.

For example, the court ruled in 2002 that it was unconstitutional for executive officials to remove chief judges. The law applied in the Brožová case was adopted in disregard of that ruling.

I agree with Eliška Wagnerová, the Constitutional Court’s deputy chief justice, who commented in “Out of balance” that ordinary courts have grudgingly accepted the need to comply with Constitutional Court judgments.

Nonetheless, the Weizsová case itself, apart from being an example of the executive’s refusal to respect Constitutional Court decisions, also renews the “war of the courts” from the late 1990s in the Czech Republic.

At that time, the Supreme Court refused to accept a Constitutional Court ruling that conscientious objectors could not be prosecuted multiple times.

In the latest case, the Supreme Administrative Court refuses to accept the Constitutional Court’s ruling that Slovak pensioners are entitled to the same level of pension as all other Czech citizens. The reason the Weizsová case was heard twice by the Constitutional Court is that the Supreme Administrative Court refused to respect its first judgment.

Rent control is another issue on which the ordinary courts, Parliament and the executive branch simply refuse to abide by Constitutional Court judgments.

Although the Constitutional Court has repeatedly ruled (beginning in 2000) that the existing rent control system is unconstitutional, the government has continued to adopt regulations keeping it in place. It took Parliament until 2006 to adopt a statute allowing landlords to raise rents.

The Constitutional Court ruled last year that ordinary courts should disregard such unconstitutional limitations on rent and permit landlords to raise the rents.

Still, ordinary courts have generally refused to accept this ruling, arguing that there is no legal basis on which to make such a decision.

Two simple explanations go a long way toward explaining what’s really going on behind the scenes.

First, the type of law the Constitutional Court applies differs from the traditional “ideal of law,” which was that law comprises very detailed and explicit rules that make everything perfectly clear and leave little room for judicial creativity.

In contrast, the Constitutional Court applies broad constitutional principles and ensures that laws and judicial decisions conform to them. Controversy arises when the Constitutional Court rejects clear and explicit rules in favor of general and vague constitutional principles.

So, in the Weizsová case, the Pension Act makes clear that Anna Weizsová is only entitled to a pension from Slovakia, but that violates the principle of equality in pensions.

In the Brožová case, the Act on Courts and Judges provided (before the Constitutional Court invalidated the key provision) that the president could remove the chief justice, but this violates the principle of judicial independence.

In the rent control cases, the rules provide that landlords can only raise rent when, and only to the level, authorized by the government, but this violates the constitutional protection of property rights.

Second, the mere existence of this new type of court invades the turf of other courts and executive officials (not to mention Parliament), as it is making decisions that once were within the full discretion of other officials or branches.

Just as is the case with organ transplants, the body politic has the tendency to reject the “invading” foreign element, the Constitutional Court.

These considerations must be kept in mind when evaluating the claimed need for reform to improve the Constitutional Court’s decision-making process.

A suggestion has been made that the court must be reformed because it is not doing its job properly.

In actuality, the constitutional judiciary is doing its job properly, which annoys the executive branch, because the president and government see the court as intruding on their “turf.”

A court does its job properly by deciding in accordance with the law it is called on to apply. Following rule of law principles means the executive branch must also follow the law: It must respect court rulings that decide what the law requires.

Courts are made to be independent, precisely so that they will be able to decide impartially whether the executive branch has violated the law and to rule accordingly without the fear of reprisals from the most powerful state officials.

With that in mind, it is highly suspect that the justice minister puts forward a reform proposal calling for improvement of the judiciary’s effectiveness, when the centerpiece of the “reform” consists in allowing executive officials to remove chief judges or council members from office.

I find it difficult to see this as anything other than a blatant attempt to gain greater indirect influence over judicial decision-making, which whittles away at judicial independence.

— The author is an American lawyer and adviser to the Czech Constitutional Court on European law.

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