The Constitutional Court found No. 80 / 2011 Coll.
The Constitutional Court found of 1 March 2011 sp. zn.
Valid
Contents
I.
I. A) Ústavní normy a principy ovládající legislativní proces
I. B) Proces přijímání napadeného zákona a jeho ústavní vady
I. B.a) Zneužití legislativní nouze
I. B.b) Nepředvídatelné svolání mimořádné schůze Poslanecké sněmovny
I. B.c) Neodůvodněné odepření obecné rozpravy
I. B.d) Odepření práva hlasovat zvoleným senátorům
I. C) Popis okolností legislativní procedury přijímání napadeného zákona
I. D) Shrnutí
II.
III.
IV.
V.
V. A) Prameny parlamentního práva a demokratické principy legislativního procesu
V. B) Role parlamentní opozice v legislativním procesu
V. C) Ústavní kritéria pro vyhlášení stavu legislativní nouze a projednání návrhu zákona ve zkráceném jednání podle § 99 JŘPS
VI.
VII.
80
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under sp. zn. Pl. ÚS 55 / 10 on 1 March 2011 in plenary composed of Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krórek, Dagmar Lastovická, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner (Judge of the Rapporteur) and Michaela Židlická, on the proposal of the Group of Members of the Parliament of the Czech Republic, represented by MEP Mgr. Bohuslav Sobotka, with the seat ka, with the seat of the Czech Parliament of the Czech Republic, on the annulment of Law No. 347 / 2010 Coll.
as follows:
Act No. 347 / 2010 Coll., amending certain laws relating to austerity measures under the jurisdiction of the Ministry of Labour and Social Affairs, shall be repealed with effect from 31 December 2011.
Reasons
Recital of the proposal
1. A group of 45 Members of the Chamber of Deputies of the Parliament of the Czech Republic with a proper proposal [cf. Article 87 (1) (a) of the Constitution of the Czech Republic and Article 64 (1) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court], received by the Constitutional Court on 9 December 2010, called for the repeal of Act No. 347 / 2010 Coll., amending certain laws relating to austerity measures under the jurisdiction of the Ministry of Labour and Social Affairs (hereinafter referred to as "the contested Act").
2. The appellants themselves summarised the substance of the objections in such a way that the contested law was not adopted in a constitutional manner. Each individual government majority procedure in the Chamber of Deputies and the Senate, namely (a) abuse of the legislative emergency institute, (b) an unforeseeable call for an extraordinary meeting of the Chamber of Deputies, (c) an unjustified omission of the general debate and (d) a refusal to vote for elected Senators, in the view of the appellants, in a disproportionate, insufficiently reasoned and arbitrary manner, infringes fundamental rights, constitutional principles and values, namely Article 1 (1), Article 2 (3), Article 5, 6, 26 and 36 of the Constitution of the Czech Republic and Articles 4 (1) and Article 22 of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter '). The raison of such interference in these fundamental rights and principles is, according to the applicants, all the more serious that this was done in the framework of the adoption of a law which itself significantly interferes with the sphere of fundamental rights of individuals, in particular social rights. First of all, the appellants focused their argument on the general definition of the principles governing the legislative process, with which they subsequently confronted a specific one, in a proposal detailed in the manner and circumstances of the process of adopting the contested law, which they considered unconstitutional, and therefore sought its annulment.
3. In the general definition of the fundamental principles and values governing the legislative process, the appellants based both on the knowledge of the legal theory and on the conclusions drawn from the case-law of the Constitutional Court or foreign courts. In particular, they cite the conclusions reached by the Constitutional Court in the judgment of the Constitutional Court in Case 77 / 06 ÚS of 15 February 2007 (N 30 / 44 SbNU 349; 37 / 2007 Coll.), where the Constitutional Court clearly defined the claims and minimum requirements imposed by the current democratic rule of law on parliamentary consideration of draft laws. In particular, the appellants referred to the presence of a public contradictory parliamentary debate as a fundamental principle, since the legislature should have the character of a rational legal discourse in which "(...) all participants were given the opportunity to get to know the material in question in detail and to express their views in an informed manner. It is therefore appropriate to have a process that allows for an open debate between competitors, including minority opinions." (cf. quoted find sp. zn. Pl. ÚS 77 / 06, paragraph 38).
4. The appellants, by referring to the knowledge of legal theory, have put forward the view that parliamentary debates and parliamentary debates fulfil at least a dual function, a creative function and a legitimacy function. The credit function is based on the assumption that a political decision is made through a debate or at least a debate allows such a decision. The political decision therefore arises in the confrontation of arguments and counter arguments in the parliamentary debate, which in this way also allows for the settlement or compromise of competing interests. Although a government coalition with a relatively significant majority of the House is currently able to promote the political decisions made in the Chamber of Deputies in reality and outside Parliament, the draftsmen say that the minimum requirement arising from Article 15 of the Constitution of the Czech Republic should be understood as a real (even time) possibility of preparing the opposition and submitting amendments to the government's draft laws. That is the only way the opposition can live up to its functions in a democratic political system.
5. However, in the context of constitutional review, the parliamentary debate is even more important, according to the applicants. Even if a real political decision was taken outside Parliament, the purpose of the parliamentary debate remains legitimacy, i.e. to make public arguments for and against which the political decision played a role. The public is thus informed and confronted with the essential aspects of the decision, which enables it to make its own judgment on the matter, to take or reject the arguments put forward and to adapt the outcome accordingly to its future behaviour - whether in elections or other form of political participation. Thus, the debate does not lead to a decision in its legitimacy function, but it justifies and legitimises the decision already taken, making the decision's supporters and opponents transparent. Interpreting the intention of the legislature and the purpose of the parliamentary debate is also important for the legal consciousness of the citizens and helping legal certainty as one of the principles of the rule of law, which protects Article 1 (1) of the Constitution of the Czech Republic. The applicants re-supported their claims by the conclusions of the cited finding, sp. zn.
6. In addition, in the way the contested law was adopted, the appellants found the failure to be quoted by the sp. zn.
7. In the light of the foregoing, according to the appellants, the provisions of Act No. 90 / 1995 Coll., on the Rules of Procedure of the Chamber of Deputies, as amended, (hereinafter referred to as "JŘPS ') and of Act No. 107 / 1999 Coll., on the Rules of Procedure of the Senate, as amended, (hereinafter referred to as" JŘS'), which were used in the proceedings of the draft contested law, the appellants stated that the detailed circumstances of acceptance and the legislative process of the contested law were undoubtedly contrary to the above-mentioned constitutional principles and values. This contradiction was specifically seen by the appellants (a) in the abuse of the Institute of Legislative Emergency (see I.B.a)], (b) in the unforeseeable calling of an extraordinary meeting of the Chamber of Deputies (see I.B.b)], (c) in the unjustified denial of a general debate [see I.B.c)] and (d) in the denial of the right to vote for elected senators (see I.B.d). For all these procedures, the appellants found the intervention to be disproportionate, the lack of justification and the characteristics of arbitrary. In the appellants' view, the above-mentioned steps in the decision to declare a legislative emergency should also be passed through the three-stage proportionality test used by the Constitutional Court to assess the conflict of constitutional protected values during its duration. The state of legislative emergency and abridged action are designed to prevent threats to the fundamental rights and freedoms of citizens, threats to the security of the state or to significant economic damage (legitimate objective), but this makes interference with the above rights of the House minority (damaged value). Such intervention is constitutionally only possible if it is also appropriate, necessary and proportionate.
8. In relation to the Institute of Legislative Absence and the conditions for its declaration under Paragraph 99 (1) of the JRC, the appellants argued that the declaration of legislative emergency and abrupt conduct without fulfilling the conditions under Paragraph 99 (1) of the JRC would not only be a violation of the law, but also a significant improvement in the constitutionally protected freedom of parliamentary debate and the right of the Member to make amendments, and thus his right to exercise his elected office as well as the equality of Members, as the government Members are clearly benefiting. In this context they referred to the part of the finding of the Constitutional Court sp. zn. Pl. ÚS 12 / 10 of 7.9.2010 (269 / 2010 Coll.; paragraphs 17 and 18), in which the Constitutional Court considered also the general preconditions for declaring and fulfilling a state of legislative emergency. In the view of the Constitutional Court, the appellants believe that they understand the decision on legislative emergency to a large extent as a political decision, but they warn against using it as a tool to reduce the rights of the House minority. In this case, the appellants consider that it is possible to have serious doubts as to whether the declaration of a state of legislative emergency and abridged conduct was capable of preventing significant economic damage to the State; In contrast to previous cases of a legislative emergency, the Government failed to convince opposition Members of the need to approve the amendments related to the adoption of the State Budget Act in order to take effect no later than 1 January 2011. It did not convince the opposition that the declared saving of under CZK 24 billion, which represents about 2% of the planned budget expenditure, was the essence of the proposal rather than the fundamental political decisions to limit certain social rights.
9. At the level of necessity, that is to say, finding out whether it really was a minimum intervention in the freedom of parliamentary debate and the rights of Members, necessary to achieve the objective pursued to avoid significant economic damage to the State, it is to be seen by the appellants that the government had an alternative approach at its disposal, in particular, it could have achieved that objective by submitting a draft law in a timely manner. But, from the sequence of government majority steps, it can be imported to pursue parallel political objectives: first, the unpopular bill to the plenary of the Chamber of Deputies before the municipal and Senate elections, and then to discuss the Senate bill before the demise of the mandates of the senators elected six years ago. However, these objectives, of which the latter in particular effectively obstructs participation in decision-making by the newly elected Senators, cannot be considered legitimate. The need for a state of legislative emergency to prevent significant economic damage to the State can therefore also be doubted by the applicants.
10. Similarly, the appellants questioned the proportionality of the declaration itself of a state of legislative emergency and abridged action. While the level of risk of significant economic damage is quite questionable, the degree to which Parliament's freedom of debate and the rights of Members are curtailed is indisputable. In a state of legislative emergency, which allows the bill to be passed in the Chamber of Deputies within a single day, the Member cannot properly study the bill and make a sound comment on it. It does not have time to prepare amendments; by consulting experts, it cannot obtain more precise knowledge of the content of the draft law and its diverse implications, and it cannot also convey the views of its constituents and, where appropriate, of legitimate interest groups, which can only be heard by the mouth of Members on parliamentary ground. In addition to reducing the rights of Members, the right of citizens to hear the arguments for and against the law adopted are reduced and the legal scope of social rights is reduced, at least in the form of a reduction in the rate of sickness, the abolition of the social bonus, the reduction of the care allowance, the reduction of unemployment benefit for certain groups or the withdrawal of the majority of childbearing families with a newly born child.
11. The above-mentioned three-stage proportionality test was also submitted by the appellants to the way in which an extraordinary meeting of the Chamber of Deputies was convened, where there was also a conflict of rights or protected values. On the one hand, there is an interest in the urgent discussion of the draft law on account of the considerable economic damage, on the other hand, the aforementioned freedom of parliamentary debate, the right of Members and citizens to participate in the administration of public affairs, and, moreover, in the extreme short term, the right of Members to attend at all meetings of the Chamber of Deputies.
12. Under Rule 51 (6) of the JRC, Members must be notified at least five days in advance to convene a meeting of the House. If this deadline has not been complied with, the Member may propose a postponement of the hearing, when the House decides on such a proposal by voting without debate. The law therefore links only the right to propose a postponement of the proceedings, which will then be decided by the House, with failure to respect the five-day period. The House's majority will enforce such an extraordinary meeting even if the legal deadline is not respected. However, the appellants believe that the provisions of Paragraph 51 (6) of the JSPS need to be interpreted in the light of constitutional principles and values and within the meaning of Article 22 of the Charter, according to which the legal regulation of all political rights and freedoms and its interpretation and application must enable and protect the free competition of political forces in a democratic society. The five-day time limit, according to the applicants in Section 51 (6) of the JJPS, serves to enable Members to become familiar with the proposed agenda and prepare for its points, and to learn, in an extreme case (for example, if they are doing their duty as Members on a business trip, but they certainly want to take part in the discussion of the draft of the contested law), about the meeting. With the consent of the Chamber of Deputies, the law allows this deadline to be shortened, undoubtedly in order to respond promptly and effectively to the current political situation. However, the appellants would consider it arbitrary if the five-day period were to be reduced without stating the reason, the shorter the time between the meeting and the start of the meeting, the more serious reasons must be for such a shortening, but there was no argument or reason at the meeting of the Chamber of Deputies for such a quick meeting.
13. In the first step, in the suitability test, the applicants referred to the above. If the adoption of the Act by 1 January 2011 prevents significant economic damage from being encountered, the rapid call of an extraordinary meeting of the Chamber of Deputies is a suitable instrument to avert them.
14. However, in the need test, the applicants say that a quick meeting of the Chamber of Deputies will no longer stand. The same objective would have been achieved by discussing draft law on 3 November, 4 November or 5 November 2010, without the need to convene an extraordinary meeting in 40 minutes. Such an intervention, namely the discussion and approval of the bill at such a doubtful meeting, is, according to the appellants, already the arbitrary stepping on the political rights of opposition Members under Article 21 (1) and (4) of the Charter and the citizens under Article 21 (1) of the Charter. Such a rush appears to be needed only in view of another possible objective pursued, namely to discuss the adopted bill in the Senate by 13 November 2010, the date of expiry of the mandate of the senators elected six years ago. However, this objective, excluding the Senate's participation in the decisions already chosen by the Senators, is considered illegitimate by the applicants.
15. As the Assembly of Deputies' meeting is clearly failing the need test, it is no longer necessary to deal with the proportionality test. However, the appellants also stressed that interference with rights and protected values is enormous here. In particular, Members who were duly excused from the meeting of the Seventh Meeting of the Chamber of Deputies on 2 November 2010 were trampled on their legitimate expectation that the four bills, including the defendant, would not be dealt with that day. But this legitimate expectation was also affected by Members who had already been familiar with, consulted and prepared amendments to the draft laws already in distress. The call for an extraordinary meeting with a deadline of 40 minutes, contrary to the practice and meaning of Section 51 (6) of the JŘPS, has thus significantly exacerbated the effects of the state of legislative emergency itself and, as a result, only four days have elapsed between the submission of the bill and its approval, of which two work days have elapsed. Moreover, this four-day discussion of the bill was not predictable at the beginning of the fourth day.
16. The appellants also questioned the way in which the general debate in adopting the contested law was prevented. According to Article 99 (7) of the JRC, the House may decide, in a state of legislative emergency, to refrain from a general debate at second reading. This can reduce any discussion of the bill in plenary of the House to a detailed debate on the second reading and immediately following the third reading, ending with a final vote. In the appellants' view, the provision cited in Section 99 (7) of the JJRC must also be interpreted in the light of the constitutional principles and values and within the meaning of Article 22 of the Charter. It is also necessary to take into account the different functions of the general and detailed debate under paragraphs 93 and 94 of the JRC, when the general debate is understood as an area for political debate and a detailed debate as an area only for the submission of amendments with brief justification. This practice was evidenced by extensive quotes from the statements and speeches of former and current officials presiding over the meetings of the Chamber of Deputies, which prove that they really require a distinction between general and detailed debate. Therefore, the abandonment of the general debate means, according to the appellants, another significant reduction in the freedom of expression of a Member and the freedom of parliamentary debate, because it leads Members (with the exception of Members with a priority right to speak) to speak only in connection with the submission of an amendment or another proposal and to limit their speech to the justification of such a proposal. Otherwise, they are exposed to the intervention of the President of the Chamber of Deputies, as has been the case in the case under consideration, and this occurred just a day after the contested law was adopted by the Chamber of Deputies. The procedure of the House Majority, which has decided to refrain from a general debate at second reading, although the Social Policy Committee has recommended that this bill be discussed at second reading both in the general debate and all in detail, means intervening in the constitutionally guaranteed rights of Members under Article 21 (1) and (4) of the Charter and citizens under Article 21 (1) of the Charter. Therefore, the appellants also tested its suitability, necessity and proportionality.
17. The abandonment of the general debate is, in the opinion of the appellants, capable of speeding up the House's negotiations, but again rather in relation to the interest of discussing the bill by the "old" Senate, because in relation to the entry into force of the Act on 1 January 2011, the time savings thus obtained are absolutely marginal. However, the procedure of the House majority fails the need test, according to the applicants. The limitation of parliamentary debate by abandoning the general debate seems completely unfounded, since the conduct of the general debate did not in any way jeopardise the achievement of the stated objective, namely the entry into force of the Act on 1 January 2011, in order to avoid significant economic damage. On the other hand, the appellants noted that the opposition Members did not give cause to the government's articulated fears that they would resort to obstruction, that is to say, to delaying or preventing parliamentary action. Thus, any concern about the obstruction of today's opposition has been unfounded.
18. Last but not least, the appellants argued that, by virtue of the use of the abbreviated act under Section 118 of the JŘS on a proposal from the Government and the decision of the Senate majority not to allow the postponement and drawing the remaining 21 days out of the 30-day period provided for in Article 46 (1) of the Constitution of the Czech Republic, the draft of the contested law was already discussed in the Senate on 12 November 2010, in the meantime between the Senate elections in which the mandate of the new Senators was established and the moment of the termination of the mandate of the senators elected six years ago. Although one Senate meeting was usually held (only in 1998 and 2004) during the previous periods of office, and according to the practice and knowledge of the newly elected Senators' legal teaching at such meetings, the promoters considered that the Senate's second meeting in that period had already been held, on 12 November 2010, that is, on the penultimate day of the mandate of the Senators elected in 2004, they already had the characteristics of a government majority that had the right to vote in favour of the newly elected Senators, or to hold a vote at the last possible time when the Senate government camp had a majority.
19. According to the appellants, the shortened conduct under Section 118 of the JŘS must be seen in the context of the above-mentioned shortcomings in the legislative process of the contested law. Were it not for the accumulation of non-standard government majority procedures, that is to say, the declaration of a state of legislative emergency without consensus and convincing justification, to convene an extraordinary meeting of the Chamber of Deputies with a drastic reduction of the five-day period and to discuss the bill without a general debate in the evening, it would not be possible to discuss the bill in the Senate before the end of the mandate of the senators elected in 2004. From the sequence of government and government majority steps in the Chamber of Deputies and the Senate, the main objective of the draftsmen seems to be to prevent the proper negotiation of the Senate proposal, which could already be attended by newly elected senators, or where the government camp would no longer have a majority. However, according to the appellants, this procedure interferes with the constitutional right of the Senator to exercise his mandate, which is already due to election. This right of the Senator must be measured in this constellation with contradictory constitutional values, which are, on the one hand, the possibility for the Senate to comment on the draft law in the Constitution of the Czech Republic, set by a 30-day deadline, and, on the other hand, an interest in the indisputability of the Senate resolution by any decision of the Supreme Administrative Court on the nullity of the election. In this regard, the practice of a single Senate meeting in a given period, at which draft laws are being discussed, which will expire 30 days before the first meeting of the new term of office, is, in the opinion of the appellants, a sensible and balanced solution to this conflict.
20. On the contrary, at the 25th Senate meeting on 12 November 2010, the appellants considered the discussion of the draft of the contested law as an obvious interference with the Senator's right to exercise his mandate unhindered, without prima facie showing reasonable reasons for such action. The appellants also submitted to the above-mentioned proportionality test, concluding that the only declared legitimate objective could once again be to prevent the significant economic damage alleged to have occurred if the law had not taken effect by 1 January 2011 at the latest. In the level of appropriateness, the appellants admitted that the examination of the draft contested law pursuant to Article 118 of the JŘS was already eligible to speed up the legislative process on 12 November 2010.
21. However, in the appellants' view, the need test for such an accelerated Senate discussion of the draft of the contested law is already failing. This was also demonstrated by the appellants at the beginning of the incriminated meeting by the Vice-President of the Senate, Mr Pithart: "It is not true that, if we do not proceed with the abridged negotiations, the proposed amendments to the laws cannot enter into force from the first day of next year. They can. Only further steps must be taken by all those expected to do so before the final conclusion of the legal period. Democracy is becoming emptied when the majority government, corrected for the protection of minorities and individual rights, becomes the majority government." In this context, the appellants recalled that the Senate's 30-day deadline for discussing the draft contested law ended on 3 December 2010. At that time, the newly elected Senators could have taken part in the negotiations and a proper debate could have been held which they could prepare for. If the Senate rejected or returned the bill with amendments up to 3 December 2010, the Chamber of Deputies could renegotiate it in due course (i.e. without a legislative emergency) after 10 days (cf. § 97 (3) or (4) of the JRC), i.e. already in the week since 13 December 2010. In view of the public statements of the President of the Republic, the appellants' possible use of his veto in accordance with Article 50 of the Constitution of the Czech Republic seemed quite unlikely and the expectation that the contested law would soon be signed by the President was fulfilled when it did so the fourth day after it was referred to him. The announcement of the law before the end of the year would not, according to the appellants, stand in the way even if it were discussed by the Senate and then by the Chamber of Deputies a few days later, allowing the Senate to fulfil its role and opposition to the effective exercise of its rights in the legislative process. Thus, according to the applicants, the way in which the contested law was discussed and adopted in the Senate is a disproportionate interference in the law of the Senators elected in 2010 to exercise their mandate under Article 21 (4) of the Charter in conjunction with Article 4 (4) of the Charter; The Senator can carry out his mandate only by making a promise, but the deliberate and arbitrary shift of a fundamental political decision against parliamentary practices before the moment of possible composition of the promise does not conserve the substance and meaning of such a restriction on the performance of the Senator's mandate. As a result of such an artificially preserved government Senate majority, approval was made easier after a general debate (Section 108 (2) of the JRC), so opposition Senators could not submit amendments at all (unlike Members who just did not have adequate time to prepare them).
22. The claims set out in the draft Constitutional Court also confronted the stenograms of the proceedings of the Chamber of Deputies, the Senate and their committees, and their resolutions and parliamentary prints freely available in the digital library on the website of the Chamber of Deputies and the Senate of the Parliament of the Czech Republic at www.psp.cz and www.senat.cz.
23. On 5 October 2010, the Government submitted to the Chamber of Deputies a draft law amending certain laws in the context of austerity measures under the responsibility of the Ministry of Labour and Social Affairs, approved by Government Resolution 672 of 22 September 2010, proposing the consideration of a draft law so that the Chamber of Deputies can agree to it at first reading (Section 90 (2) of the JSPS). This proposal was circulated on 8 October 2010 to Members as House Press No. 120 / 0 - Vl. in connection with the austerity measures of the MPSV. The bill on 26 pages amended 18 other laws, with an explanatory note of 80 pages. On 14 October 2010, the Organising Committee recommended the discussion of the draft law, designated the rapporteur and proposed to order the Committee on Social Policy (Resolution No 32). The first reading was started at 16.00 on 26 October 2010 at the 7th meeting where the proposal was discussed in the general debate. During its course, the Chamber of Deputies did not agree to the discussion so that it could agree to the bill at the first reading, and after information about the forthcoming government proposal for a legislative emergency appeared in the press, the CSPD asked for a break at 17.20 hours. This request was granted and the hearing was suspended until 9: 00 on 27 October 2010. Indeed, on the basis of Resolution No 758 of 26 October 2010, the Government withdrew this bill (together with three other government bills) on 27 October 2010 during the first reading. The 7th meeting of the Chamber of Deputies continued until 14: 02 on 29 October 2010, when it was interrupted until 2 November 2010 until 14: 00.
24. In the meantime, on the basis of Resolution No 759 of 26 October 2010, the Government proposed to the President of the Chamber of Deputies to declare a legislative emergency for the period from 1 November to 5 November 2010 for the discussion of the same Government Bill (together with the three Government Proposals), on the one hand, asking the President of the Chamber of Deputies to decide that those Government Proposals will be dealt with in a brief act in the context of the declared state of legislative emergency, and the President of the Senate to discuss those Government Proposals in a brief act. At the same time, she mandated the Prime Minister to re-submit those government bills to the President of the Chamber of Deputies for further consideration, as well as those adopted on the basis of the Government's quoted resolution.
25. The Government's proposal for the contested Act was therefore re-submitted by the Government on 29 October 2010 to the Chamber of Deputies and was distributed on the same day to Members as the House of Press No. 155 / 0 - Vl. in connection with the austerity measures under the jurisdiction of MPSV (as well as the remaining three government bills - House Prints No. 156 to 158).
26. Subsequently, the President of the Chamber of Deputies, on the basis of the above-mentioned proposal by the Government, by Decision No 7 of 29 October 2010, declared a legislative emergency in accordance with Paragraph 99 (1) of the JRC for the period from 1 November to 15 November 2010. In the decision, it stated, inter alia, that Prime Minister P. Netime's request was justified by the "threat of significant economic damage." Immediately thereafter, by decision No 8 of the Chamber of Deputies of the same day, the President of the Chamber of Deputies decided, in accordance with Paragraph 99 (2) of the JRC, that the government bill in question (together with the other three) would be dealt with in an abridged hearing (without first reading) and, pursuant to Paragraph 99 (3) of the JRC, the House Press No. 155 of the Social Policy Committee had ordered, for its consideration, "an inexcusable deadline for the submission of the resolution by 12.00 (2) 2010)."
27. On 2. 11. 2010 at 2: 02 pm, the 7. Meeting of the Chamber of Deputies was opened, where the Chamber of Deputies first decided to consider whether the conditions for a legislative emergency continue to apply. It is clear from the statements of the appellants and from the stenograms of the meeting that, in the general debate against this procedure, the President of the Chamber of Deputies argued that it was a violation of the JRC, since according to Article 99 (4) of the JRC, The Chamber of Deputies is to assess the duration of the legislative emergency always "before discussing the draft agenda," with the programme of the 7th meeting of the Chamber of Deputies on 26 October 2010 being approved, and House Press 155 was not (nor could it be) included. On the contrary, the President of the ODS Club, P. Bumper, announced in the course of the meeting (at 3: 19 p.m.) that he had submitted a proposal by the coalition Members to convene the so-called extraordinary meeting of the Chamber of Deputies and recommended that this meeting be convened on the same day as 4: 00 p.m. The President of the Chamber of Deputies immediately agreed to this proposal (at 3: 20 p.m.) and suspended the meeting of the 7th meeting by 4: 00 a.m., when the 8th meeting of the Chamber of Deputies will be opened. As the appellants pointed out, 40 minutes have elapsed between the interruption of the 7th meeting and the launch of the 8th meeting of the Chamber of Deputies so called.
28. 8. The meeting convened by the President of the Chamber of Deputies pursuant to Rule 51 (4) of the JRC, at the request of 108 Members, was opened at 16.01. In this context, the appellants pointed out that the President of the Chamber of Deputies did not respect the JŘPS, which in the provision of Paragraph 51 (6) requires it to inform all Members of the meeting of the Chamber of Deputies at least 5 days in advance, which was objected to by Mr V. Filip. According to the appellants, the invitation to the 8th meeting of the Chamber of Deputies was circulated electronically to Members just 7 minutes before the meeting was called and the opposition did not only have the opportunity to prepare for this meeting, but some of the opposition Members did not have the opportunity to attend it. In accordance with the same provision of the JRC, the President of the ČSSD also responded to the non-compliance with the deadline by submitting a motion to postpone the hearing until the second day, i.e. before 3 November 2010 until 9: 00 p.m., which was justified in order for all Members to prepare themselves properly for this meeting. This proposal was not adopted (see vote 2).
29. After the opening of the 8th session of the Chamber of Deputies again in the debate, opposition Members who pointed out that the conditions for declaring a state of legislative emergency were not met, or that this institute was abused by a government majority against the rights of a political minority. The Chairman of the ČSSD Parliamentary Club then requested a two-hour recess in the plenary meeting for the purpose of consulting the ČSSD Parliamentary Club. This request was rejected (vote 3). Subsequently, the President of the ODS Parliamentary Club submitted a procedural proposal "that the Chamber of Deputies should act and vote on the laws after the 19th, 21st and 10th hours tomorrow." The Chamber of Deputies approved this proposal in vote 4 and agreed to consider whether the conditions for the state of legislative emergency remain in place to discuss Parliament's press releases 155 to 158, with resolution 111 confirming the duration of the legislative emergency (vote 5, in proportion to the votes: from 151 Members to 105, against 46). Subsequently, the agenda of the 8th meeting (vote 6) was approved and could therefore be accessed to discuss the individual items of the agenda.
30. Before discussing the draft of the contested law itself, the Chamber of Deputies examined whether the conditions for discussing the draft of the contested law were laid down in the abridged act, while the Chamber of Deputies adopted Resolution No 112, which stated that the conditions for discussing the draft of the contested law still existed in the abridged act (vote No 7 in proportion to the votes: of the 134 Members in favour of the vote 90, against 39). Thus, the draft of the contested law could have been considered at second reading. In this context, the appellants pointed out that only four days had elapsed since the submission of the draft law to the opening of its proceedings in the Chamber of Deputies, i.e. from 29.10.2010 (Friday), including Saturday and Sunday, and the discussion of the draft law was not sufficiently predictable for opposition Members, but three other bills were not given the opportunity to make their views known in detail and to make their views known in an informed manner, particularly in view of the fact that not only the draft of the contested law was included and discussed in the manner described above, but three other draft laws (Parliamentary Prints Nos 156 to 158).
31. On the basis of the above-mentioned decision of the President of the Chamber of Deputies No 8, the designated Committee on Social Policy discussed the bill and on 2 November 2010 issued a resolution to Members as Press No 155 / 1 (Amendments), in which it recommended, on the one hand, the Chamber of Deputies to discuss the proposal 'in a general debate; discussed all its parts in detail in the debate, by Friday 5 November 2010 until 4: 00 p.m.'; On the other hand, the Chamber of Deputies recommended approving the bill with those supplements. As the appellants pointed out, despite this fact, it was decided, on the basis of vote 8, not to hold a general debate in the context of the second reading of the adoption of the draft of the contested law, and a detailed debate was immediately opened, in which six Members and Minister J. Drábek, as rapporteur, spoke. Immediately thereafter, a third reading of the draft contested law was launched within the meaning of Article 99 (7) of the JJPS, where it was first put to the vote on amendments by the rapporteur of the committee and certain Members, and subsequently put to the vote on the proposal for the contested law itself, as amended by the approved amendments, with the motion for the contested law being adopted (Resolution No 113) after the Chamber of Deputies had given its assent to it, when 108 Members and Members in favour of the proposal were put to the vote, against 47 (vote 17 at 20.45 hours).
32. The Chamber of Deputies passed on 3 November 2010 a draft of the contested Senate Act, which was ordered by the Organising Committee on the same day as Press No. 363 / 0 by the Health and Social Policy Committee as the Guarantee Committee. The Committee on Health and Social Policy discussed the proposal and adopted Resolution No 76 on 11 November 2010 recommending the Senate to approve the proposal and which was circulated as Press No 363 / 1. The Senate classified this press at its 25th meeting, which was convened by the President of the Senate in accordance with § 118 (3) of the JRC on 12 November 2010. Immediately after its opening, the Government's abovementioned request of 26 October 2010 was put to the vote for the Senate to discuss the draft of the contested law (together with the other three) in an abridged act within the meaning of Article 118 of the JRC, which, on the basis of vote 3, was granted that request by the Government and the draft of the contested act was dealt with in abridged act. At the end of the debate (according to Section 108 of the JRC, no more detailed debate was held with the possibility to table amendments), resolution No 601 was adopted by which the Senate approved the bill as referred to it by the Chamber of Deputies. 42 senators and 77 senators voted in favour of the resolution, against which was 30, abstained 5.
33. The Act was delivered on 19. 11. 2010 to the President of the Republic, who signed it on 23. 11. 2010. The approved law was then delivered to the Prime Minister for signature on 30 November 2010. The Act was published in the Collection of Laws No 347 / 2010 Coll. on 8 December 2010 with effect from 1 January 2011, with the exception of Article XXIX (1), which takes effect on the date of publication of the Act. In this context, the appellants pointed out the contrast between the speed of the legislative process (the draft law was submitted on 29 October 2010, approved by the Chamber of Deputies on 2 November 2010, approved by the Senate on 12 November 2010 and signed by the President of the Republic on 23 November 2010, only 25 days after the draft law was submitted) and the slowness of the announcement of the adopted law in the Collection of Laws (8 December 2010, i.e. 15 days after the President's signature). Although, according to the appellants, the unusual speed of the legislative process was justified by the government by exceptional circumstances where the State is threatened with significant economic damage (Section 99 (1) of the JRC), the publication of the law after its signature by the President took longer than usual. The postponement of the law adopted in this way reduces the legiskation period and thus the possibility for citizens to get to know the new legislation in time, and significantly makes it difficult for them to have a constitutional review, because the appellants consider that the real effects of the unconstitutionally adopted law can be effectively prevented only if the contested law is annulled by the Constitutional Court before the date of its effectiveness. As a result of the procedure of the executive authorities, which led to the publication of Act No. 347 / 2010 Coll. up to 8 December 2010, the proposal for the annulment of the Act could therefore have been submitted only 24 days before its effective date.
34. Finally, the appellants briefly summarised their proposal in such a way that, as a result of the procedures described above, the draft of the contested law was approved by the Chamber of Deputies on the second working day following its submission, and only during that second day did it become apparent that that date would be the last day. Due to the short duration of time, it was not possible to prepare and consult the amendments properly, and due to the accumulation of short time and the launch of the general debate, the possibility of arguing against the draft law in a parliamentary debate in the Chamber of Deputies was significantly hampered. The government coalition also purposely avoided a thorough critical debate in the Senate, the possibility of submitting amendments and the potential use of the powers of the Senate renewed in the elections to reject or return the bill to the Chamber of Deputies. This has been achieved by cumulatively abusing the state of legislative emergency, an unforeseeable call for an extraordinary meeting of the Chamber of Deputies, as well as by shortening the time for discussing the Senate bill for just nine days from the constitutional 30-day deadline. For a law that does not impartially restrict fundamental rights and freedoms, Parliament has therefore completely failed in its constitutional role of legitimacy. The appellants pointed out that they did not challenge all the laws adopted by Parliament in the course of November 2010 in a state of legislative emergency, although most of the following defects can also be noted. However, the adoption of the contested law was accompanied by an extreme insolence of the government majority and, in the wider sense, the promoters saw the continuation of a tendency which was very dangerous for the development of democracy in the Czech Republic. This is a tendency towards marginalisation of Parliament and parliamentary debates, as they also pointed out by reference to the circumstances of the adoption of Act 261 / 2007 Coll., on stabilising public budgets, where the way in which it is adopted, as well as the way in which the contested law is adopted, shows the tendency of the government majority to curtail the possibilities of free debate in both chambers of Parliament. Thus, the parliamentary debate loses its contradictory character so important to the fulfilment of its functions. These are all manifestations of a tendency to demote both chambers of Parliament to a mere voting machine, which is to translate the political decisions of the government majority into the form of an adopted law as quickly as possible without any unnecessary talk. If the contested law is not repealed and so clearly pointed out the unconstitutional nature of such a crowding-out of parliamentary debate, the appellants believe that such a way of adopting fundamental laws, which mean a legal restriction of fundamental rights and freedoms, could very soon be avoided by the rule and by the normal phenomenon which the appellants wanted to prevent.
Recital of the observations of the parties
35. The Constitutional Court pursuant to the provisions of Sections 42 (4) and 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as "the Law on the Constitutional Court") sent the present application for the annulment of the contested provisions to the Chamber of Deputies and the Senate of the Parliament of the Czech Republic.
36. The Chamber of Deputies of the Parliament of the Czech Republic, represented by President Miroslava Nemcová in her observations of 22 December 2010, described in particular in detail the procedure for the adoption of Act No. 347 / 2010 Coll., amending certain laws in connection with austerity measures under the responsibility of the Ministry of Labour and Social Affairs. Finally, it stated that the contested law was adopted after a properly implemented legislative process and it is up to the Constitutional Court to assess its constitutionality.
37. The Senate of the Parliament of the Czech Republic represented by President Milan Štěm in his observations of 22. 12. 2010 also shot a detailed description of the procedure of examination of the contested Act No. 347 / 2010 Coll. By the Senate, accompanied by a copy of the shorthand report from the 25th Senate meeting of 12 November 2010.
38. Moreover, the Senate on the proposal of a group of Members, namely the refusal to vote to the newly elected Senators, has preceded the legal analysis of the issue of the verification of the validity of the Senators' elections, concluding that the Senators newly elected to the Senate in October could not have been granted access and voting (i.e. the exercise of the mandate) at the Senate meeting held during the previous 7-November 2010, because it was not confirmed at that time that their mandate as Senator had actually been established. In fact, the Senate Mandates of Senators elected in October's Senate elections were verified by the Senate Mandate and Immunity Committee only at its meeting held on 24 November 2010, on presentation of their election certificate. On the same day, the first meeting of the Senate began in the new 8th term, at which the newly elected Senators made the required promise by the Constitution of the Czech Republic and began to implement their mandate resulting from the election.
39. By letter dated 18 January 2011, the Constitutional Court requested the Prime Minister, P. Netime, on specific grounds for adopting Government Resolution 759 of 26 October 2010, by which the Government proposed to the President of the Chamber of Deputies of the Parliament of the Czech Republic to declare a state of legislative emergency and, at the same time, asked her to decide that, inter alia, the government's proposal for the contested law will be dealt with in an abridged act in the context of the declared state of legislative emergency (see paragraph 24).
40. Prime Minister P. Netime, in his observations to the Constitutional Court on 28 January 2011, first summarised the circumstances of the legislative procedure for the adoption of the original draft government laws prior to the adoption of the Government Resolution No 759 (see paragraph 23). Subsequently, beyond the requested requirement, you must give your opinion extensively on the issue of declaring a state of legislative emergency in general, on the regulation of this institute and its use in the past. On the very grounds for which the Government has proposed a state of legislative emergency in the present case, the Prime Minister stated that, in the event of failure to adopt those government bills, there would be significant economic damage to the Czech Republic. In addition, he stated that the measures contained in all the reform laws should bring an annual savings of up to CZK 45 billion; on the contrary, their early adoption would lead to significant economic losses of up to CZK tens of billions, as well as tax and accounting problems. In view of the fact that all the aforementioned government bills followed up on the draft State Budget Act, their failure to adopt them would either mean a higher deficit of the state budget, whereby, according to the budgetary provisions of the management itself, the volume of revenue and expenditure of the budget approved for 2010 would be managed or the outlook of the Czech Republic expressed by the share of the government deficit in GDP from 4,6% to 5,5%. Both situations would mean considerable damage to the Czech Republic, the budget commission would be a signal of internal instability and a signal that the government is unable to enforce such reforms to keep the public finances deficit at a tolerable rate, which would reduce the credibility of the government and the whole of the Czech Republic. This would ultimately have an impact on the change in the position of credit rating agencies and market participants in the credit risk assessment of the Czech Republic on the domestic and foreign capital markets, in the view of the Prime Minister, and would result in a significant increase in the cost of operating sovereign debt, which the Prime Minister described in his observations in a concrete example of the development of the rating of the long-term foreign liabilities of the Czech Republic according to the rating agencies. At the end of his speech, the Prime Minister stated that "already at the time the Government approved the reform package at its meeting on 22 September 2010, it was aware that their late acceptance could cause serious economic damage to the Czech Republic and that, as a result of the relatively limited time limit for the adoption of those laws, exceptional circumstances were given, comparable to the exceptional circumstances in which the state of legislative emergency was declared in the past. However, the proposal for a state of legislative emergency was decided by the Government only at the time when it became clear that the use of other procedural instruments provided by the Rules of Procedure of the Chamber of Deputies (in particular the acceptance of the proposal at the first reading or the shortening of the deadline to discuss the proposal in order to ensure the effectiveness of the reform laws at the same time as the Act on the State Budget of the Czech Republic for 2011) cannot be used effectively as a result of the opposition's position. Thus, to use the Institute of Legislative Emergency, the government was effectively forced by the opposition's position" (see page 9 to 10). That is why the Prime Minister concluded his observations by stating that the Government, when deciding on the use of the procedure under Paragraph 99 (1) of the JŘPS, acted fully in accordance with the law on the withdrawal of draft reform laws and the request to declare a state of legislative emergency for the period from 1 November to 5 November 2010 for their consideration.
41. On 4 February 2011, the Constitutional Court received unsolicited personal observations from the President of the Chamber of Deputies of the Parliament of the Czech Republic. In particular, it states that it was its duty to declare a state of legislative emergency under Section 99 of the JRC, with the fact that it was not entitled to review and decide whether the conditions for its publication were given and whether it would declare a state of legislative emergency. Furthermore, the President of the Chamber of Deputies is recalling the process of adopting the law in question, from the stage at which the original draft government law was tabled to the approval of the draft contested law in a legislative emergency at an extraordinary meeting of the Chamber of Deputies. The opposition of the Group of Members of the Parties to the non-compliance with the five-day time limit for the meeting of the Chamber of Deputies is rejected by the President by reference to the part of the sentence of the second after the semicolon section 51 (6) of the JRC, with no minimum time limit to be observed by the JJPS and below which the basic five-day period cannot be reduced. Opposition Members had the opportunity to comment on the draft law and to raise their amendments, as the draft law was discussed by the Social Policy Committee, including the opposition Members, and adopted their amendments to it, which the opposition Members also tabled directly at the meeting of the Chamber of Deputies in the second reading. If the Chamber of Deputies decided to abandon the general debate at second reading, it acted in accordance with Section 99 (7) of the JRC and, moreover, despite the failure to hold the general debate, Members of the opposition were able to express themselves with a preferred right of speech. The President of the Chamber of Deputies rejects the unevenness of the time devoted to the bill in Parliament compared to the time required for its publication in the Collection of Laws. The President of the Chamber of Deputies thus refuses that in the present case there would be an abuse of the legislative emergency institute and that an extraordinary meeting was, in its view, carried out within the framework of legal rules. In its own action and in the process of the Chamber of Deputies, the President does not see the faculties of insolence or failure of the policies of the constitutional legislative process. It also does not agree with the view (but not presented to the appellant) that a significant majority of Members should agree to declare a legislative emergency in order to be able to talk about its compliance with the law, or reject the view that, if the voting ratio is lower, that is to say the actual ratio of political forces in the Chamber of Deputies, it is illegal. It considers that the Constitutional Court should test the proportionality of the case between the alleged violation of the rights of minorities in the Chamber of Deputies and any serious consequences relating to the possible repeal of the law in question, including the principle of minimising its intervention. Finally, the President of the Chamber of Deputies says a wonder that, although four laws were adopted in the context of a legislative emergency, only two of them were attacked by the appellants before the Constitutional Court.
Disclosure from media and public sources
42. In order to ensure a sufficient overview of the political context and circumstances of the declaration of legislative emergency, the Constitutional Court made the following findings out of publicly available sources and media:
■ On 18 October 2010, in the context of the results of the first round of elections to the Senate of 15 and 16 October 2010, Prime Minister P. Intime gave the media an interview in which the issue of the emergence of complications for government reforms in the possible acquisition of the majority of the CSDB in the Senate after the second round of elections (held on 22 and 23 October 2010) stated, inter alia, "(...) although social democracy could not be a state-making opposition, it would mean an enormous destructive complication, as it would cause an extension of the entire legislative process and conflict" (source: People's newspaper, 18. 10. 2010), "(...) social democracy cannot be a state-making opposition, it is a completely negative wave that makes things difficult and it can. The Orange Senate would be a huge negative force that would only increase the potential of political conflicts. This would unnecessarily polarize this company." (source: MF Today, 18. 10. 2010).
■ Immediately after approval of the Government's resolution on the motion to declare a state of legislative emergency to discuss the contested draft government law (even the other three proposals), Prime Minister P. Intime commented as follows: "(...) It could only be done by the way we went. This means their withdrawal and their new mission with a request to declare a legislative emergency. (...) It is clear that these standards, given the obstruction that social democracies do, are incommendable. A high risk of viability until the end of this year so that they are effective from 1 January next year, to which the draft state budget is bound. This means that there is a significant threat to the reputation of the Czech Republic on the financial markets, there is a risk of a deterioration of the rating, there is a risk of an increase in the debt service, there is a risk of an increase in the government deficit and even in some aspects of the risk of tax evasion. All of this creates a danger of great economic damage and in this situation it is the government's duty to prevent great economic damage and declare a state of legislative emergency." (source: ČT 24 - Events, comments, 26. 10. 2010, see also by analogy ČRo Radio Czech Republic - Interview on current topic, 27. 10. 2010). "We had no choice. (...) Given the absolutely obstructive and destructive behaviour of social democracy. (...) Failure to adopt the laws on which the budget for next year is based would cause economic damage to the Czech Republic." (source: "Strings and cuts.") The coalition avalanche wiped out the opposition, "People's newspaper, 3 November 2010).
■ On the grounds of a state of legislative emergency, the President of the ODS P. Thumper also stated: "(...) Well, because the Czech Republic is threatened with major economic damage. A major economic injury should the laws which the Chamber of Deputies had been brought before 1 January not be adopted. It would not be possible to adopt the budget as presented. And from that, there would be a whole series of other steps. We tried, on Monday and Tuesday, to clearly offer it, to discuss the laws in a reasonable standard regime. We offered to cut the deadline to 15 days. On the one hand, this would make it much easier to discuss in committees, on the other hand, it would make it possible to adopt those laws or their effectiveness on 1 January 2011. I mean, I keep talking about the situation where social democracy has shown an absolute blockade in the Senate, when social democracy has decided to block these laws. So the reason is clear." (source: ČRo 1 - Radiožurnál - It happened today, 29. 10. 2010).
■ President of VV K. Kočí stated on the subject that "(...) The state of legislative emergency has been used several times in the Chamber of Deputies in the past, the purpose of which is to allow for faster consideration of draft laws. Of course, I prefer the classic legislative process, but the destructive behaviour of the opposition gave the coalition no choice. (...) We did not want to, and I personally consider the state of legislative emergency to be the ultimate solution. I really wanted us to approve in a classical way. However, last week, the opposition did not allow us to approve these key laws in a short-lived procedure so that we could do it clearly already stated that in the Senate, in which the majority of these Senate elections are held, it will immediately veto and return all those laws, which means it would not really be possible to do so at the proper time by the end of the year. Therefore, the state of legislative emergency." At the same time, she expressed the belief that the draft laws could have gone to the House earlier, and then the state of legislative emergency would not have to be applied. "(...) It is simply the fact that some ministers of this government, whether for the sake of elections or something else, I do not want to say, have completely overslept, but have not passed it on to the Chamber of Deputies." (source: ČT 24, 3. 11. 2010, or "Coachman: they have cornered us. That is why we have reached the legislative emergency," Parliamentary papers, 8 November 2010, available at http: / / www.parlamentnilisty.cz / Parliament / 180705.aspx).
■ In the same spirit, the Vice-President of the Chamber of Deputies, K. Klasnová, said: "(...) however I may think that our coalition partners may have waited until after the October elections to present unpopular cuts, I was sorry to hear the hysteria that the legislative emergency caused."
■ The same belief was based on an open letter from the coalition Members, headed by the chairmen of the coalition political parties' parliamentary clubs, by which they turned to individual government ministers with an appeal to speed up the preparation of reform laws. "(...) In view of the knowledge of the House's deadlines and procedures, we would like to ask the ministers to be able to discuss them in peace at the clubs and to make everything possible from the beginning of 2012 (...) We do not want such fundamental laws to be passed in time, for example in a state of legislative emergency." (source: HN. Ihned.cz, 8. 12. 2010).
Oral proceedings before the Constitutional Court
43. At the oral hearing before the Constitutional Court, held on 8 February 2011, the parties referred in their observations to their views the content of their written submissions before the Constitutional Court. The Senate of the Parliament of the Czech Republic, represented by Vice-President A. Gajdůšková, also stressed the circumstances of the legislative procedure for the adoption of the contested law in the Senate and stated that, if the draft law in question was discussed in the Chamber of Deputies in the shortened negotiations in the context of the declared state of legislative emergency, it clearly follows from the rule of Paragraph 118 of the JŘS the obligation of the Senate to discuss the transferred law in the Chamber of Deputies, i.e. in the shortened negotiations. In other words, the decision of the Chamber of Deputies to discuss the bill in question in the context of a legislative emergency also predefined the nature of the legislative process in the Senate, as well as its outcome.
44. The Constitutional Court called as a witness the Prime Minister of the Czech Republic, P. Netime, to comment on the factual circumstances of the adoption of a government resolution by which the Government proposed to the President of the Chamber of Deputies of the Parliament of the Czech Republic to declare a state of legislative emergency and, at the same time, to ask her to decide that, inter alia, the government proposal of the contested law will be discussed in a brief act in the context of the declared state of legislative emergency. On the question of the President of the Constitutional Court of P. Rychetský, who specifically led the Government to take such a decision, P. Nečas replied that there was a real threat from the opposition's behaviour that the proposed contested law, together with other reform laws, would not be adopted before 1 January 2011, thereby causing significant economic damage to the Czech Republic and would result in a change in the position of credit rating agencies and market participants in the credit risk assessment of the Czech Republic on the domestic and foreign capital markets. On the question of the Vice-President of the Constitutional Court of E. Wagner, whether P. Netime could give an opinion on when, in the event of compliance with the ordinary legislative process in the Parliament of the Czech Republic, the actual approval of the contested bill, P. Netime stated that probably during January or February 2011. On the further question of the Vice-President of the Constitutional Court, Mr Nepas expressed an opinion on the amount (in absolute terms) of the increase in the deficit of the state budget compared to the originally planned budget as a significant economic damage, Mr Neptime, using an analogy with the level of economic damage caused by, for example, floods, indicated an amount of CZK 45 billion. Subsequently, the Vice-President of the Constitutional Court asked whether Mr Netime would be able to quantify in particular the economic damage that would result from the adoption of the contested law under the terms of the ordinary legislative procedure, which he considered would have ended in January or February 2011. In addition, P. Netime stated that there would be economic damage in the range of units of billions of CZK per month. The opinion of the Vice-President of the Constitutional Court confronted the statistical data published by the Czech National Bank as well as by the rating agencies themselves, indicating, for example, that even a significant increase in the government deficit compared to the planned 2009 budget deficit did not in fact mean that the rating reduction and the change in the position of the credit rating agencies in the credit risk assessment of the Czech Republic had been shown. On the question of Judge V. Güttler and his subsequent question by the Vice-President of the Constitutional Court on the government's choice of action, namely why reform laws were adopted only after the adoption of the draft state budget, or why the changes in the form of cuts foreseen by the contested draft law were not adopted in the form of individual amendments to the laws concerned, P. Intime stated that adopting reform proposals and assessing their impact were a very complex and complex process, which must be discussed as a whole, in order to avoid unexpected and unforeseen interventions in its structure. In the same way, Mr Netime responded to the question of Judge S. Package whether the government had considered the possibility and its effects, when the contested draft law would have been adopted in the framework of the ordinary legislative process and the remaining reform laws would have been adopted in the legislative emergency regime. On the questions of the representative of the appellants about certain specific circumstances and reasons for the procedure chosen by the Government (not to announce an extraordinary meeting of the Chamber of Deputies earlier or to know the opposition's position) P. Intime responded in a similar manner to his written observations of 28 January 2010. In order to further question the representative of the appellants, whether the government for its decision to propose to the President of the Chamber of Deputies a state of legislative emergency due to the threat of significant economic damage had some concrete analysis or documentation, P. Intime stated that a number of expert opinions and opinions, of course in the form of forecasts and likely scenarios and estimates. On the question of Judge I. Jana, whether she believed that the Members involved might have had doubts about what they were discussing in the case of the resubmitted draft of the contested law and, or on the basis of which these doubts were refuted, P. Intime stated that she considered that each Member had to have been aware of the specific content of the material under consideration, which was reassured several times by the authors themselves.
45. During the oral hearing, Mr Sobotka, the representative of the appellants, Mr Sobotk, made a proposal to add evidence in the form of an interview of the witness, President of the Chamber of Deputies, Mr Germans. The Constitutional Court suspended the hearing until 22 February 2011 to that end.
46. At the time before the sitting of the oral hearing, the observations of the appellants for the written observations of the President of the Chamber of Deputies of 4 February 2011, and the written observations of Prime Minister P. Nezas of 27 January 2011 and his statement before the Constitutional Court of 8 February 2011 were served on the Constitutional Court of 14 February 2011.
47. In relation to the written observations made by the President of the Chamber of Deputies, the appellants re-launched the argument already put forward in their proposal and confronted it with the concrete statements made by the President of the Chamber of Deputies, in particular, that Members had sufficient time to get acquainted with the proposals under consideration, including in the light of the fact that the government proposals in question were tabled for the second time. In addition, they did not agree with the argument of the President of the Chamber of Deputies that, despite the failure to hold a general debate, Members of the opposition with a preferential right to speak, since the publication of the debate on the draft law was considered discriminatory only to speakers with the right to give the floor, which was also criticised in the cited finding of the Constitutional Court, sp. pl. ÚS 24 / 07. In this context, they also pointed out that, compared to the last parliamentary term, opposition Members have significantly reduced the opportunity to present their positions through persons with the right of priority as a result of a reduction in the number of officials of the Chamber of Deputies. Last but not least, the appellants stressed that the President of the Chamber of Deputies had declared a state of legislative emergency in breach of Article 99 (1) of the JRC, according to which the President of the House would declare a state of legislative emergency on a proposal from the Government for a certain period, as it had declared a state of legislative emergency for the period from 1 November 2010 to 15 November 2010 (not until 5 November 2010 as proposed by the Government).
48. The Prime Minister's written observations were also confronted by the appellants with the arguments already set out in their proposal. In particular, they did not agree with the Prime Minister's statement on the obstructive conduct of the opposition, which seeks to justify the procedure of the Government and of the Government majority in the Chamber of Deputies, for which it refers to the application of an objection under Paragraph 90 (3) of the JRC, preventing the approval of the draft law at first reading, and the objections under Paragraph 91 (2) of the JRC, preventing the shortening of the legal period for the discussion of the draft law in committees by more than 30 days. The appellants believe that the exercise of the rights conferred by the JRC in these two provisions by the House Minority cannot be regarded as an obstruction, namely an abuse of the Rules of Procedure to delay parliamentary proceedings. The purpose of these provisions is to guarantee the House minority a minimum time limit for proper consideration of the draft laws, with the Institute of Law Approval already at first reading (§ 90 (2) - (6) of the JRC) showing that it is intended only for the approval of simple and uncontroversial bills. According to their claim, the applicants submitted an objection pursuant to Article 90 (3) of the JŘPS in order to be able to apply amendments to the proposed legislative proposals, thereby implementing the role of opposition in offering alternatives. The Institute of Law Approval no longer allows the submission of amendments at first reading. The appellants believe that their interest in shortening the 60-day deadline for discussing draft laws in committees by a maximum of 30 days was legitimate in view of the seriousness of the political decisions in the proposals contained, namely the limitation of the legal scope of economic and social rights guaranteed by the Charter. "We believe that our interest in the proper and thorough discussion of the bills submitted was easily predictable and therefore cannot be legitimately used by the Prime Minister as a reason for declaring a state of legislative emergency." (p. 5)
49. Finally, the appellants disputed some of the observations made by the Prime Minister at the oral hearing before the Constitutional Court. In order to argue that the opposition procedure, which vetoed both the procedure under Section 90 of the JRC and the shortening of the deadlines for the committee's proceedings for 15 days, "would have taken place in full second reading, and even in terms of deadlines, the Senate would have discussed this proposal in a new composition," the appellants pointed out that if the Prime Minister had counted on the original draft law that the Senate would have discussed it three weeks later than the original government bill after its withdrawal and re-submission. The appellants also criticised the Prime Minister's response to the impact of the government bill on the state budget and the consequences of its non-adoption, stating that the explanatory report on the draft contested law had already quantified its effects on the state budget for 2011 differently, by decreasing by CZK 11,283 billion on the expenditure side and by CZK 12,22 billion on the revenue side. This amendment has an overall impact of about CZK 23.5 billion until the annual budget balance for 2011. Therefore, if, according to the applicants, the overall impact of the contested law on the annual balance of the state budget is projected to be about CZK 23.5 billion, then in a situation where this law would become effective later than 1 January 2011, the State budget would have an impact on its balance sheet of about CZK 1.96 billion per month. Thus, if the contested law were to take effect until, for example, 1 February 2011, which would be completely realistic in its proper discussion without declaring a state of legislative emergency, it would be reflected in the state budget balance of CZK 1.96 billion, in the effectiveness of the law as of 1 March 2011 in the amount of CZK 3.92 billion, etc. Thus, even such a time delay would certainly not be able to increase the public deficit 'in the order of several tens of billions', as the Prime Minister said. According to the appellants, the President of the Government has stated that the impact of all the laws in question on the State budget by more than a third cannot be considered to be substantiated. The appellants also drew attention to the fact that, according to the Prime Minister, when submitting a request for consideration of the contested bill in a state of legislative emergency, the Government did not have any analysis or other material that was processed by the competent authorities to determine the state of the threat of significant economic damage. She did not have such analysis processed even at the time of preparation of the contested draft law, but the government had in such a situation or could, in the opinion of the appellants, require the processing of such documents, in particular by the Ministry of Finance and the Czech National Bank. Last but not least, the appellants did not agree with the Prime Minister's repeated references to the rating of credit rating agencies because, according to the appellants, the views of the credit rating agencies had no relation to the adoption or non-adoption, or to the way in which the draft law was discussed and thus to the time of its effectiveness, much less to the specific budgetary implications of the measures introduced by them in order to avoid any significant economic damage.
50. Furthermore, on 17 February 2011, the President of the Chamber of Deputies provided the Constitutional Court with an overview of the legislative emergencies declared in the Chamber of Deputies from 1995 to the present day. From this summary, as stated by the Constitutional Court, it is intended to obtain an overview of how many times and in what cases the state of legislative emergency has been declared in the past and in which the laws discussed under this regime have been placed on the agenda of the current meeting of the Chamber of Deputies. It is stated from the overview that in the period in question the state of legislative emergency was declared 23 times.
51. On 22 February 2011, the oral hearing before the Constitutional Court continued by hearing the witness, President of the Chamber of Deputies of the Parliament of the Czech Republic, M. Germans, who was called upon by the Constitutional Court to comment, in particular, on the facts of the adoption of its decisions of 29 October 2010, which complied with the Government's proposals and declared a state of legislative emergency, and at the same time decided to discuss, inter alia, the government's proposal for the contested law in a brief act in the context of the declared state of legislative emergency.
52. The President of the Chamber of Deputies first commented on the questions of the Vice-President of the Constitutional Court, Mr Holländer, on the arguments and reasons which led her specifically to take its decisions, stressing that, on the basis of the verbatim wording of Section 99 (1) of the JŘPS and the practice of the Chamber of Deputies, it is clear that it is not entitled to assess and assess the reasons which led the Government to submit a proposal for a legislative emergency. This view was subsequently confronted by the Vice-President of the Constitutional Court by the fact that, in its Decision No 7 of 29 October 2010, she declared a legislative emergency for a longer period than proposed by the Government, which the President of the Chamber of Deputies once again justified by past practice and also by providing sufficient time for the proper consideration of all government bills in legislative need, consulting with the Legal Department of the Chamber of Deputies and the Legislative Department.
53. On the question of the Vice-President of the Constitutional Court, E. Wagner, whether and how the President of the Chamber of Deputies justified the adoption of his decision to discuss, inter alia, the Government's proposal for the contested law in the abridged act, in the context of the declared state of legislative emergency, adopted pursuant to Paragraph 99 (2) of the JøPS, which provides for a degree of discretion, the President of the Chamber of Deputies stated that it was based on the current conduct of the proceedings in the Chamber of Deputies and on the comments made by the Prime Minister on the possible economic damage which may arise as a result of his early failure to take place, while expressing the opinion that all Members with sufficient knowledge of the content under consideration of the contested law. Its position was then confronted by the Vice-President of the Constitutional Court with the fact that, on the one hand, the facts described above in the circumstances of the adoption of the contested draft law and, on the other hand, the observations of Members of the ODS M. Benda or TOP 09 F. Laudates, mentioned in the media, which responded to the fact that, by adopting the amendment to the Income Tax Act, Members were taxed on functional benefits and thus reduced income, which was not communicated to them in any way or was not clear to them during the hearing. That is why the Vice-President of the Constitutional Court asked again whether the President of the Chamber of Deputies insisted on his opinion on the sufficient awareness and knowledge of all Members of the content now under consideration, undoubtedly more complicated draft law and its possible consequences, while the President of the Chamber of Deputies stressed that it is merely a subjective statement from individual Members. Subsequently, the Vice-President of the Constitutional Court, by referring to Article 68 (1) of the Constitution of the Czech Republic, which underpins the responsibility of the Government of the Chamber of Deputies, questioned the position presented by the President of the Chamber of Deputies on its commitment to the proposals put forward by the Government, which rather suggests that the parliamentary majority is accountable to the Government.
54. The question of the President of the Constitutional Court of P. Rychetsky whether, in the present practice of the Chamber of Deputies, there was a similar situation in declaring a state of legislative emergency, i.e. the withdrawal of a government bill during its proper hearing and its re-submission in a state of legislative emergency, as in the present case, the President of the Chamber of Deputies stated that he did not recall such a case.
55. The Judge of the Constitutional Court, Mr Güttler, was referring to the 8th extraordinary meeting that the President of the Chamber of Deputies had convened and to the circumstances of its calling and the course to which the President of the Chamber of Deputies responded by saying that, as regards the very form of its assembly, everything was done in a proper manner, and as regards its programme and the material discussed, for all Members in a sufficiently predictable manner.
56. The President of the Chamber of Deputies asked the President of the Constitutional Court of J. Musil in particular about the subjective motives and reasons by which she, as a Member, justified her consent to the proposed procedure of the Government, and the President of the Chamber of Deputies referred to the arguments of the Government, the petitioners of the draft law in question and the observations of the Prime Minister from the oral proceedings before the Constitutional Court of 8 February 2011, which were decisive to her. In order to ask whether, as President of the Chamber of Deputies, it has provided any technical evidence and opinions (e.g. the CNB) for its decision to declare a state of legislative emergency, it stated that it did not, since the examination and assessment of the reasons which led the Government to submit a proposal for a state of legislative emergency belongs to the Chamber of Deputies as a whole.
57. To ask the Judge of the Constitutional Court, S. Package, whether the Chamber of Deputies or Members have any means of procedure to oppose its decision to refuse to declare a state of legislative emergency or in the event of its failure to act, the President of the Chamber of Deputies stated that such a situation could not occur because, according to the JŘPS, it must act and approve this proposal. Subsequently, Mr Balík asked whether, before discussing the contested law, its proposal to declare a state of legislative emergency was justified by the Government's position, for example, that if a proper legislative procedure had taken place and the law had been adopted only at the end of February, it would not be a loss of approximately CZK 24 billion per year, but only EUR 1.96 billion. The President of the Chamber of Deputies said no.
58. Subsequently, the President of the Chamber of Deputies was faced with a number of questions by a representative of the appellants, B. Sobotka, on the grounds of her decision to convene an extraordinary meeting, on the determination of the committee's inexcusable deadline for submitting an opinion and on the specific procedural decisions in the context of the examination of the contested draft law. The President of the Chamber of Deputies responded consistently to these questions by expressing that it was a standard, previously widely used procedure, which is in line with the Rules of Procedure. Subsequently, the President of the Chamber of Deputies, B. Sobotka, was asked about the circumstances which led to a change of chair before the extraordinary meeting, when Vice-President L. Zaoralek, who had previously, on the same day, presided over the proper 7th session of the Chamber of Deputies, was replaced by her before the beginning of the 8th extraordinary meeting, which the President of the Chamber of Deputies responded to, that it was a matter of "internal" agreement and that it was a normal procedure that was necessary in the present case because the original President of Vice-President of the House of Deputies did not respect the time when it should have been continued after the session of the Chamber of Deputies and did not want to face criticism of Members.
59. Subsequently, the judge of the Constitutional Court of V. Krórek asked the representatives of the applicants whether, when discussing the draft law, which was subsequently adopted and published under No. 120 / 2010 Coll. and concerned the taxation of employee benefits - food supplements (Act No. 120 / 2010 Coll., amending Act No. 235 / 2004 Coll., on Value Added Tax, as amended), which was discussed in the Chamber of Deputies from 26 February 2010 to 2 March 2010 in a state of legislative emergency, and the rapporteur of which was Mr Sobotka himself then voted or otherwise opposed such a procedure and, if not for what reasons. The respondent should have given a specific reason, which is foreseen by Article 99 (1) of the JRC, and in what he saw its fulfilment. The representative of the appellants stated that it had not objected because it was a situation other than the one currently under assessment. The negotiations between the Government and trade union representatives took place for a long time at the time, and there was the possibility of a transport strike which, according to the representatives of the Government, could lead to serious economic damage, and it was also a solution to the extraordinary social conflict between trade union representatives and the Government, when the Government came to the Chamber of Deputies on the basis of this meeting with a proposal for this procedure. The existence of the significant economic damage was not specifically demonstrated by the government and the vote of the question was based solely on the Government's position. This view was confronted by Judge V. Kránek with the case now under discussion and the appellants raised by the objections, i.e. that the government did not substantiate the reasons for declaring a state of legislative emergency and the existence of economic damage in a qualified manner. The representatives of the appellants responded to this again in that they were different situations and, as a promoter of the proposal now under discussion, they were perceived differently, since in the first case an extraordinary social conflict was resolved, whereas in the case under consideration, the state budget for 2011 was prepared as it is prepared every year, so the effects of any decisions of the Chamber of Deputies were clearly quantifiable. In the first case, the damage could not be quantified precisely, as it was not possible to quantify precisely its economic effects at the time of the strike. The question of Judge V. Krórek whether, even at the time, he would have come to the same conclusion - i.e. that the legislative emergency was declared in accordance with the law, even if he had applied those aspects contained in the proposal currently under consideration, the appellants' representatives stated that they did, since there was no such cumulation in the present situation by proposing criticised action by the majority of governments as in this case.
60. The parties subsequently reiterated in their final observations and summarised their views on the content of their written submissions to the Constitutional Court.
Reference aspects for the assessment of the proposal
61. Article 1 (1) of the Constitution of the Czech Republic, which characterises the Czech Republic as a democratic rule of law based on respect for the rights and freedoms of man and citizen, contains the normative principle of a democratic rule of law. Respect for the rights and freedoms of an individual is therefore also one of the principles of the concept of the rule of law adopted by the Constitution of the Czech Republic, or is the purpose of the functioning of the State and of the State. Respect for the same purpose is also reflected in Article 2 (3) of the Constitution of the Czech Republic, according to which state power can only be exercised in cases, within the limits and in the ways laid down by the law. It follows that neither Parliament nor its two chambers can act freely when adopting laws, but are bound by law (constitutional order and in its light accepted and interpreted parliamentary law - see below).
62. The Constitutional Court has in the past addressed in its case-law a number of constitutional aspects which the legislature or other constitutional authorities must comply with at various stages of the legislative process [see for example the finding of sp. zn. Pl. Pl. Pl. ÚS. Pl. In the quoted finding sp. zn. Pl. ÚS 5 / 02 The Constitutional Court has repeatedly interpreted the principles for which, inter alia, as a requirement arising from the concept of the rule of law, respect for procedural (procedural) rules is necessary: "only in a process without error (constitutionally consistent procedure) can a legal and constitutionally consistent outcome (decision) be achieved and therefore the procedural purity of the decision-making process (procedure) must be given greater attention and given strong protection. Where the principles thus recalled relate to the constitutionality of the procedure before and the acts adopted by the public authorities (the procedure provided for in Article 36 (1) of the Charter of Fundamental Rights and Freedoms), there is no reasonable reason to derogate from those principles in matters of the control of the legislative process and the acts adopted therein (the legal standards adopted therein), since, although the decision-making process in the legislative activity differs to a certain extent from the decision-making process in proceedings before other public authorities - and in this sense it can be seen as the sui generis the guiding principle of decision-making in which the final outcome is identical in both cases; Moreover, it cannot be forgotten that the consequences of legislative acts are certainly more important for their social impact than in cases of individual (defective) decisions by other public authorities. It is therefore - in the legislative process - at the forefront of the demand for stability, persuasion and the necessity of the legal acts on which the rule of law and, in parallel, the lives of citizens lie; However, such acts, as well as the necessary authority of the legislature, cannot be achieved except by respect for the rules (the principles of legislative action) which the Chamber of Deputies, as an important bearer of legislative power, has itself established by law for this activity."
63. These rules of the legislative process are contained in various sources of (parliamentary) law, which include the Constitution of the Czech Republic in particular; Furthermore, the Rules of Procedure of the two chambers of Parliament (JJPS and JŘS) interpreted in conformity with it; more detailed rules on the negotiations adopted by the resolution of the various chambers of Parliament under Article 1 (2) of their Rules of Procedure (so-called autonomous resolution); as well as the consistent practice of the parliamentary chamber and its bodies, "which can be regarded as an unwritten part of the legislative procedure due to a long-term repetition, if it can be found to be consistent with higher values of law making, democratic political system, etc. '(see paragraph 38 of the quoted finding of sp. zn.
64. The last three sources of parliamentary law are an expression of the autonomy of Parliament or its chambers, consisting of self-regulation of parliamentary procedures, which is necessary to some extent, since the Constitution of the Czech Republic naturally regulates the rules of the legislative process (the scope and role of the two chambers of Parliament, their basic organisational structure, the quorum and the necessary majority for individual types of resolutions, parliamentary immunity, the basic rules for the conduct of the meetings of both chambers, etc.) only in general and itself envisages the adoption of more detailed rules of the legislative process in the form of the Rules of Procedure of the individual chambers of Parliament. The German Federal Constitutional Court, in one of its decisions (judgment of 21.7.2000, 2 BvH 3 / 91, available in electronic form at http: / / www.bverfg.de / entscheidungen / hs20000721 _ 2bvh000391.html), stated that the creation and regulation of the legislative process, if not contained in the Constitution itself, as well as the function, composition and manner of working of committees, the exercise of the rights of legislative initiative, information and control, also considers the creation and regulation of the rights of political factions and the exercise of parliamentary law of free expression and parliamentary debate. At the same time, the Court stressed that this catalogue containing self-regulation items and parliamentary autonomy instruments was not final. This is because the catalogue must be redefined over and over again in view of changing political circumstances in order to allow for adaptation to changed working conditions. In this way, parliamentary autonomy can gain a new reality over former constitutional epochies through the fact that Parliament and government no longer oppose each other, as the classical theory presupposes, but the border runs across Parliament's plenary, with the government and its supporting parliamentary majority forming political unity against the opposition. Parliament must also respond to the increasing complexity of regulatory needs. That is why the modern parliament must develop strategies to work on the division of coexistence and coordination of political will-making if it loses its ability to act. However, that self-regulatory power of Parliament relating to its own matters must not be without a margin of discretion and subject to constitutional constraints, resulting in particular in claims for the form and interpretation of the Rules of Procedure of the parliamentary chambers [cf. Judge E. Wagner's different position on the finding of the Constitutional Court sp. zn.
65. The fundamental constitutional basis of the parliamentary and legislative procedures was formulated by the Constitutional Court in particular in the appellant of the widely quoted finding sp. zn. Pl. ÚS 77 / 06, where the Constitutional Court reiterated the need for compliance with the rules of the legislative procedure, since the fundamental requirement of the formally understood rule of law is to exclude the benevolence of decision-making by public authorities, when non-compliance with the rules may not only lead to a question of the legitimacy of the decision adopted (law), but also of its legality, which in the present case actually led to the annulment of the contested provisions of the law, in order of the procedure of their adoption with the constitutional principles of a democratic rule of law. "Compliance with the procedural rules contained in those sources of law must be required because, although private persons are not the addressee of these standards, their non-compliance may ultimately significantly affect their fundamental rights' (see paragraph 38).
66. The Constitutional Court thus not only strongly appealed to the Parliament of the Czech Republic in the sense of the need to respect the principles of the creation of a consistent, transparent and predictable law as one of the attributes of a materially understood rule of law, but also to constitutionally justify the need for respect for democratic principles in the legislative process (with the support of Article 1 (1) of the Constitution of the Czech Republic), which must be taken into account both in the regulation and in the actual exercise of the legal procedure. In other words, these principles give rise to certain demands on the form and interpretation of Parliament's Rules of Procedure in particular. These principles need to be found in conjunction with the principle of division of power with the principles and functions of legislative power, in particular in the constitutionally anchored principle of representative democracy, based on the free exercise of the mandate of Members of Parliament, on the equality of Members of Parliament as representatives of the people, in freedom of expression and in free parliamentary debate (Articles 15, 23 (3) and 26 of the Constitution of the Czech Republic).
67. The Constitutional Court, in its cited finding, sp. zn. Pl. ÚS 77 / 06, also described as a fundamental principle of parliamentary decision-making the principle of pluralism, which was based on the principle of free competition of political forces (Article 22 of the Charter) and which, as a characteristic and character of each free society, constitutes one of the essential elements of a democratic rule of law within the meaning of Article 9 (2) of the Constitution of the Czech Republic. "The addressees of legal standards have no doubt the right to legitimately expect that any restrictions on their fundamental rights imposed by law are the result of a discourse conducted across the political spectrum, a discourse in which all participants have been given the opportunity to get to know the material in question in detail and to express their views in an informed manner. The process is therefore appropriate, which allows for an open debate between competitors, including minority views. Therefore, they are at the forefront of procedures ensuring both the hearing of the parties and the formal quality of the legislative work. The legal procedure in this optics becomes" the real source of the legitimacy of the law. "(see paragraph 38).
68. Through rich references to Czech and foreign literature dealing with the issue of parliamentary decision-making, as well as in terms of its comparison with the decision-making of the Constitutional Court in the latter finding, he justified the requirement to exercise legislation in the form of a rational legal discourse. "Parliamentary decision-making concerns general cases; in its favour, the reservation of fundamental decisions taken in the parliamentary procedure, which ensures consideration of the subject matter to be decided on, with the participation of political parties representing the organised interests of the civil public. The law as a result of parliamentary resolutions is a compromise between the interests in which a social consensus is designed, which must be considered a criterion of the law's acceptance. Each of the institutions forming or applying the law shall be defined by formal features, including procedures that serve the purpose of the institution. The procedures also affect the forms of parliamentary proceedings, as well as the division of labour between its institutions, and are intended to guarantee democracy, legitimacy of authority, rationality of legislation, procedural justice (hearing of parties, debate) etc. (Acid, J. Legislative process in the Czech Republic as a form of rational legal discourse?, Lawyer, 2005, no 6). Indeed, parliamentary procedures are also an important element of the completion of the form of division of power and conditions of political competition in the state (Cable, J. From capitalism to socialism and back. Theoretical investigation of the rebirth of Czechoslovakia and the Czech Republic. Praha: Karolinum, 2005, p. 205). (...) Finally, for C. Schmitt, Parliament as a form of government is an open argument debate, in which differences and views are confronted - political power is forced to debate that allows public control (Schmitt, C. The Crisis of Parliamental Democracy, London, 1994, cit. according to Akil, J. Legislative Process in the Czech Republic as a form of rational legal discourse? Lawyer, 2005, No 6). '(see paras 41 and 43).
69. As in judicial decision-making, as in parliamentary decision-making, the idea of a 'fair decision', which is immune to the rule of law, requires that all parties be heard. Transparent hearings of parties representing the public contribute to its identification with the product of the decision-making process, in this case the law. Thus, the principle of the principle of the general public in the negotiation of laws, which goes both inside and outside the parliamentary chamber, should also be regarded as a determining characteristic of parliamentary decision-making. Inward action serves for the free creation of views of members of the parliamentary chamber, outreach activities for the public.
70. Last but not least, the principle of majority decision-making and the inseparable principle of the protection of minorities (Article 6 of the Constitution of the Czech Republic), which is represented by the parliamentary opposition on parliamentary ground, must also be included in the democratic principles of the legislative process. Its basic functions include, in particular, the articulation of minority views, the submission of alternative proposals to majority opinions and decisions, and the control of the ruling majority, all in front of the public, that is, civil society, which also creates and clarifies its opinion in this way. These characteristics are attached to the basic features of the democratic rule of law (see below).
71. The list of democratic principles of the legislative process and the related claims on the fairness of the application of the rules governing the political will-making process can be placed under the essential requirements of the democratic rule of law, or its essence itself, and, in summary, draw up a picture of the "parliamentary-perceived material, i.e. an institutionalised exchange of views between representatives of the competing groups present in society in order to find a compromise that would satisfy most of the initially considered fragmented society" (cf., cited by the different opinion of the Judge of the Rapporteur on the sp.
72. Although the principle of majority decision-making (Article 6 of the Constitution of the Czech Republic) is one of the fundamental defining features of democracy and democratic decision-making, and the majority of the governments of parliamentary democracies refer precisely to the support (trust) of the parliamentary majority, composed of representatives of one or more political parties represented in Parliament, Parliament is not the body of that majority, but is based on the free exercise of the mandate of all its members, on their equality, as they are all representatives of the people, on the freedom of expression of all and on the freedom of parliamentary debate (Article 15, Article 23 (3), Article 26 and Article 27 (2) of the Constitution of the Czech Republic), regardless of which political faction or of the religious stream of Parliament. However, representatives of the parliamentary opposition, which is composed of representatives of political parties represented in Parliament, who are not directly involved in the exercise of government power and in terms of the number of generally found in the minority, must, in view of the constitutionally guaranteed principle of the protection of minorities (see above), be allowed, within the framework of legislative procedures, the unimpeded exercise of their constitutionally guaranteed rights and must not be arbitrarily prevented from fulfilling, for democracy, the irreplaceable functions of the parliamentary opposition [cf. Resolution of the Parliamentary Assembly of the Council of Europe (PACE) No 1601 (2008), on "Procedural guidelines on the rights and responsibilities of the election in a demorative parliament 'of 23 January 2008]." The presence of the opposition (and the media) also forces a coherent government majority to explain and justify their decisions - thus guaranteeing the principle of consistency, based on free exchange of views and opinions in order to seek greater agreement and, where appropriate, to remedy the shortcomings of the proposed law. This principle is, in fact, an ideological basis for Parliament's action as an exchange of views, persuading opponents about truth and justice, as well as as as negotiating places. Parliament is an attempt at government debate in this sense. "(quoted according to Kyl, J.: Law without parliaments, Prague 2006, p. 23).
73. The most fundamental rights of the parliamentary opposition or its individual members, which should be constitutionally guaranteed in a democratic rule of law, may include, in particular, rights guaranteeing the parliamentary minority participation in parliamentary procedures; rights enabling the parliamentary opposition to exercise oversight and control over the ruling majority and the government itself. Furthermore, these are rights enabling the parliamentary opposition to block or delay decisions taken by a majority, as well as rights enabling the opposition to seek constitutional review by a majority of the decisions taken (laws), and, last but not least, rights protecting the parliamentary opposition and its individual members from the persecution and determination of the majority. The degree (depth) and level of adjustment of the rights of the parliamentary opposition in the system, as well as the extent of the space in which the parliamentary opposition is allowed to fulfil its irreplaceable functions, are not only a sign of the level of political and parliamentary culture of the society, but also a sign of the degree of democracy of the political system. In any event, one of the necessary conditions for sufficient regulation of those rights and the authorisation of the parliamentary opposition or minorities should be to require that those rights be adjusted in such a way that the ruling majority does not prevent them from being disturbed, or is fundamentally changing only on their own discretion, or at least to prevent them from doing so without sufficient time-out from taking power. [cf. Report of the Venice Commission CDL-AD (2010) 025 "Report on the role of the option in a democratic parliament" of 15.11.2010].
74. At European and international level (European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights), the rights of the parliamentary opposition are protected through the protection of the fundamental and political rights of members of parliamentary minorities. For example, their right to free and fair elections, freedom of expression, freedom of association or assembly, etc. The same is true in the Czech Republic. Although the Constitution of the Czech Republic does not explicitly mention the Institute of Parliamentary Opposition and, from the Rules of Procedure, only the JŘPS refers to the parliamentary opposition (under the term "non-governmental political party"), as set out in Section 78 (4). Nevertheless, the above rights of the parliamentary opposition, i.e. the rights of non-governmental parliamentary political factions or individual Members and Senators, are either explicitly expressed in the Constitution of the Czech Republic and in the constitutionally well-interpreted Rules of Procedure of the two parliamentary chambers [see, for example, Article 27, 28, 30 or Article 87 (1) (a) of the Constitution of the Czech Republic, as reflected in Article 64 (1) (b) of the Law on the Constitutional Court], or are also present in the Constitution of the Czech Republic for the legislative effect of the democratic principle. With the help of a constitutionally conformal interpretation of the individual provisions of the Rules of Procedure, in the light of the above-mentioned requirements arising from the application of principles which must be governed by the ordinary legislative process, the current form of the Rules of Procedure of the two chambers may also be recognised as having the purpose of guaranteeing these rights. In this way, they provide sufficient legal support for their performance and thus enable the functions of the opposition as such to be fulfilled.
75. As stated above, only a legislative process that allows rational discourse, the hearing of the parties and an open discussion between the advocates of competing views, including minority views, supported by the possibilities of active participation of participants in its course (cf. It is therefore necessary to define and specify the above-mentioned rights of the parliamentary opposition, which guarantee the parliamentary minority both active and passive participation in parliamentary procedures. This is because their guarantees and implementation are one of the necessary conditions for fulfilling the requirements of a proper and fair democratic legislative process. The quoted resolution of the Parliamentary Assembly of the Council of Europe includes in the heading those rights of the parliamentary opposition which are associated with its participation in legislative procedures, in addition to the guarantee of its simple participation in the parliamentary debate, the right to vote actively in the debate and to comment on the item under discussion, or to interpolate an interested member of the government, as well as the guarantee of the possibility of influencing the actual agenda (programme) of the following parliamentary meeting, which should therefore not be solely in the hands of the ruling majority, including the possibility of causing extraordinary meetings, the inclusion of a new item on the agenda, or, on the contrary, the possibility of blocking or delaying a specific item of the agenda. It is also necessary to include in this list the right of the parliamentary opposition to participate in the committees and control committees of the parliamentary chamber, which will enable the opposition to exercise its supervisory and control functions effectively over the decision of the parliamentary majority and the government. Last but not least, the right of the opposition to participate actively in the fundamental political and organisational decisions of the parliamentary chamber must also be included in this heading.
76. It is always necessary to seek and assess the balance between the legitimate interests of the ruling majority and the parliamentary opposition or minorities when deciding on the level and the extent of the guarantee of any of these rights of the parliamentary opposition, as well as in their performance. On the one hand, not only can the recognition of some of the above rights of the opposition, or the de facto prohibition of their proper and undisturbed performance as a result of the actions of the ruling majority, lead not only to the weakening of the legitimacy of the exercise of power, but to the constant restriction or even violation of fundamental democratic principles, it may also jeopardise the democracy of the political system itself. On the other hand, the excessive degree and extent of guarantee of individual rights of the parliamentary opposition may lead to their frequent abuse and abuse by the opposition, which may result in weakening or hindering the effective exercise of power by the ruling majority (cf. The Venice Commission report). It is therefore essential that the individual rights and the rights guaranteed by the parliamentary opposition also correspond to certain obligations and responsibilities for their execution. In addition to the necessary respect for the rule of law, parliamentary opposition is obliged (not only to its constituents) to fulfil the role of the so-called responsible and constructive opposition. Although it is rather a moral appeal, which depends on the overall level of political culture in the society, it is precisely the fact that it is carried out in a constructive and responsible manner, which corresponds to the legitimate functions of the opposition as a genuine alternative to the majority of governments, or to the functions of supervision and control over the activities of the ruling majority. This requirement is, among other things, an expression of the principle of government at a time when both the current ruling majority and the minority should bear in mind that they do not belong to one or the other group forever and the current ruling majority may soon find themselves in the position of a parliamentary minority and vice versa. Therefore, decisions should not be taken which would in fact make it impossible to exercise the rights guaranteed to one or the other group (the Constitutional Court expressed its views on the subject in its cited finding, in its opinion, on the timescale of the creation of parliamentary majorities and minorities, on the basis of the opinion of Mr Pl. ÚS 21 / 01).
V. C) Ústavní kritéria pro vyhlášení stavu legislativní nouze a projednání návrhu zákona ve zkráceném jednání podle § 99 JŘPS
77. The Institute of State of Legislative Emergency is a legal institute whose purpose is to speed up the discussion of government bills in abridged negotiations in exceptional circumstances. The content or purpose of this Institute shall be to prevent irreversible or difficult to reparable damage to the essential interests of the members of the company or to prevent real material damage to the property (existing or expected) of the State.
78. The procedure for declaring a state of legislative emergency, its reasons and the actual consideration of draft laws in a state of legislative emergency, is governed by Article 99 of the JRC ("Legislative process in a state of legislative emergency '). The state of legislative emergency can be declared" in exceptional circumstances, where fundamental rights and freedoms of citizens are significantly threatened... or where the State is in danger of significant economic damage "(Paragraph 99 (1) of the JRC). A legislative emergency is declared by the President of the Chamber of Deputies on a proposal from the Government. At the same time, at the request of the Government, it may decide that a government bill submitted will be discussed in" abridged negotiations. "In such a case, it shall order the proposal to one of the committees and shall fix an inexcusable time limit for its decision. The Chamber of Deputies shall discuss the draft law directly at second reading, with the right to decide to abandon the general debate and to limit the speaking time to five minutes and, on a proposal from the committee responsible, to limit the detailed debate to only certain parts of the law. The third reading of the bill may take place immediately thereafter. In short, the Chamber of Deputies as a whole has a state of legislative emergency as well as of abridged negotiations in its own hands - it has the right to cancel or decide not to act in abridged negotiations if it considers that the conditions for its publication have expired or the conditions for abridged negotiations are not given. The procedure itself for the adoption of the draft law in the abbreviated act in the context of the declared state of legislative emergency is then detailed in Section 99 (3) to (9) of the JSPS.
79. In view of the fact that it is an institution shortening the procedure for adopting government bills, it is necessary not only to limit or shorten the above-mentioned rights of the parliamentary opposition (in particular, by omitting the first reading and the possibility of omitting the general debate, as well as the possibility of shortening the speaking time to up to 5 minutes, or preventing some procedural proposals from being made in relation to the agenda and its conduct, etc.), but ultimately to disrupt or relatify the level of democratic principles governing the legislative process. This is because, due to the speed of adoption of the proposed government bills, it is impossible to prepare and get acquainted with the material in question and, overall, to limit and shorten parliamentary procedures and debates. Therefore, the constitutional requirement that a legislative procedure governed by the above-mentioned democratic principles "a real source of legitimacy of the law" should become a constitutional requirement, in the context of the declared state of legislative emergency and in the application of the abbreviated discussion of government bills is seriously relativised and disturbed. This is because there is a significant reduction in the necessary parliamentary debate and debate, and the Chamber of Deputies in such a situation can easily become a mere authorising officer of the government of the draft laws submitted without being subjected to thorough examination and reflection, or even without facing criticism or presentation of alternative proposals, not only by the opposition. The lack in question is all the more serious when it comes to so-called reform government bills with implications not only for the state budget, but especially for the impact on the area of fundamental rights and freedoms of the addressees of such adopted law. So, even though it is a purely legal institute, governed by the Rules of Procedure of the Chamber of Deputies only, it is clear that the consequences of its application clearly exceed the legal level.
80. In this context, the Constitutional Court had to take into account the fact that the constitutional order explicitly allows the possibility of discussing a government bill in abridged negotiations only on the basis of Article 8 of Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic, at the time of the state of danger or the state of war. Thus, if constitutional order provides for such an option only in one case, it is clear that in other situations this is generally not possible. This is not a loophole in the Constitution of the Czech Republic, if the constitutional order is aware of the possibility of discussing the draft law in a brief hearing. Only in extreme and emergency situations did the legislator decide to allow this possibility. While it may be accepted that, at the level of the law (Rules of Procedure), other cases where laws can be dealt with in a brief procedure (legislative emergency), but because they are an amendment to the praeter constitutionon and because the purpose of the constitutional legal reglement of the abbreviated procedure is to protect the rights and principles governing the legislative process in a democratic legal state, the use of the legislative emergency institute is only possible if there is a broad consensus in Parliament (aclamation, or at least the majority, which is comparable to the majority required for the adoption of the constitutional law) or (a) only when the type of gravity of situations in which the legislative emergency will be used corresponds to the gravity of the constitutional order for a brief discussion of the bill (state of danger of state of war).
81. The Constitutional Court has dealt with the issues of the adoption of laws in a state of legislative emergency in the sp. zn. Pl. ÚS 12 / 10 of 7. 9. 2010 (269 / 2010 Coll.). The Constitutional Court stated here that it was not the legislator's duty to "measure the fulfilment of the conditions for declaring a state of legislative emergency in the form of imminent significant economic damage, with a draft of a specific law designed to avert the threat of significant economic damage. The decision on whether or not there is a threat of economic damage is not a decision on damage in the legal sense, but it is based on considerations on broader political consequences. The decision whether the State is in danger of significant economic damage within the meaning of Article 99 (1) of the JRC does not need to contain an assessment in relation to the extent to which the draft law submitted has a threat of significant economic damage in an analogy to the provisions of Article 417 (1) of the Civil Code to prevent or reduce any damage." (paragraph 17). In addition, the Constitutional Court added that "in the present case, it cannot be overlooked that, when voting to confirm the state of legislative emergency, the significant majority of Members have always expressed themselves, that, during the negotiations of the Law in the Chamber of Deputies and its committees, there was no significant minority, whose rights may appear to be shortened, and that even when voting at third reading, even when voting after referring the bill to the Senate, it was a Senate for a significant majority of Members. In this particular case, the Constitutional Court, having regard to the principle of minimising intervention, therefore nodded the opinion of the Chamber of Deputies that" it has negotiated the draft law in a state of legislative emergency in compliance with the legal conditions' (paragraph 18).
82. In that finding, the Constitutional Court stressed that the Chamber of Deputies had wide discretion when assessing the question of the rationality of the declaration of a legislative emergency. This level is already determined by the very purpose of this institute, which is to enable the legislator to react directly to a particular exceptional circumstance, which is causing the legal serious consequences for fundamental rights and freedoms, security of the state or property value. The assessment of the nature of the threat of damage is not precisely controllable, its formation and scope are limited to the level of likely trends and requires weighting of a number of facts or contexts - such as the interests of the individual operators concerned, the effects in terms of public finances, interpolitical and foreign policy context. From the nature of the case, it may be necessary to react immediately in a number of cases without knowing all the relevant information, which otherwise could lead to a possible conclusion on the veracity of the adoption of the law in the accelerated procedure. It is in this context that the assessment of these circumstances is entrusted primarily to the Government, whose request is conditional on the declaration of a state of legislative emergency, because it can be assumed that it is the government, having regard to its scope and scope, which is the most appropriate body for it to be able to assess the seriousness of certain circumstances in a sufficient and relatively short period, even in the case of a limited extent of information, and on the basis of these, to assess the justification of the urgent discussion of a draft law in a state of legislative emergency.
83. However, while the Constitutional Court, particularly by referring to the degree of political consensus in relation to the assessment of the veracity of the declared situation, found no reason to define the limits of such discretion more closely in the case at hand. As has already been stated, although the Institute is an exclusive legal institution for declaring a state of legislative emergency, it must be interpreted by primacy of principles which are deductible from the normative principle of democracy (Article 1 (1) of the Constitution of the Czech Republic) and therefore the conditions for declaring a state of legislative emergency must be interpreted very strictly. The reasons for its application must be undeniably legitimate and constitutional and must be subject to the strictest standards. In order to avoid the insolence (or malice) of the ruling majority, such reasons must be interpreted in detail, properly and revisably, as required by the doctrine of the restriction of fundamental rights and as results from the ideas imposed on fair decision-making. It is also necessary to measure the respect of all the above-mentioned rights and principles governing the legislative process, if the specific reasons for declaring a state of legislative emergency are already considered legitimate and constitutionally acceptable. In particular, because there is a clear reduction in legislative procedures and restrictions on the rights of the parliamentary opposition, as well as relativisation of democratic principles of the ordinary legislative process, and therefore any further reduction or limitation of rights and principles should be considered to be extremely serious as it threatens to deny the rights of the opposition, as well as a democratic principle, which could seriously and permanently affect the quality of democracy at least in its social perception of civil society.
84. In particular, it should be pointed out that the condition of a state of legislative emergency is not only a threat of certain negative consequences, but, above all, the existence of an exceptional circumstance which has the potential to jeopardise fundamental rights and freedoms in a fundamental manner or where a State is in danger of significant economic damage (Section 99 (1) of the JPS). An exceptional circumstance (assessed by the primacy of constitutional principles) can only be regarded as such, which is clearly out of the ordinary course of political processes internal and external, or may be the circumstances posed by natural disasters. It is the exceptional reason for the need for an immediate response by the legislator and the related restrictions on constitutional principles relating to parliamentary procedure. Therefore, the conclusion on the existence of this exceptional circumstance must have a reasonable basis and be supported by facts. Its type severity must be comparable to Article 8 of the Constitutional Law on Security of the Czech Republic.
85. The rationale for declaring a state of legislative emergency must be assessed in the light of the decision-making period and the extent of the information available at that time. It is also necessary to measure the intensity of the reasons for the legislative emergency in relation to the restrictions on the constitutional principles in question, as the interest in preventing or eliminating its consequences should, in the light of the protected values referred to in Article 99 (1) of the JRC in a particular case, outweigh the interest in the proper conduct of the legislative procedure. It must be clear what specific consequences, according to the Government, are for the values defined in this provision, that is to say what justifies the conclusion on the threat of significant economic damage or threat to fundamental rights and freedoms or to the security of the State. These reasons must not be arbitrary, and the specific draft law, which the government proposes in a brief act, must constitute an appropriate means of avoiding the existence or duration of the public interest threat in question.
86. Moreover, it cannot be left unnoticed that, unlike similar institutes, which also shorten legislative procedures (the procedure for approving the draft law at first reading according to Section 90 (2) of the JŽPS or the abbreviated act under Constitutional Act No. 110 / 1998 Coll., on the security of the Czech Republic), they have virtually no possibility of preventing the use of this procedure when using the Institute of Legislative Emergency. It is declared at the request of a government that does so with the knowledge of support from its parliamentary majority. It is addressed to the President of the Chamber of Deputies, elected by the Chamber of Deputies, controlled by the same parliamentary majority, who, by his decision, will comply with such a request (or not) and, if necessary, will directly appoint a committee of guarantee with an inexcusable deadline for a resolution. The existence of the conditions for declaring a state of legislative emergency is then assessed in general and subsequently also in the context of the discussion of the draft law in a short hearing before the individual items of the agenda are discussed by the Chamber of Deputies, again controlled by the parliamentary majority (cf. Syllova, J. et al., Parliament of the Czech Republic, 2nd edition, Prague 2008, p. 244). Any agreement of a significant majority of Members, although it cannot be refuted in relation to the review of the veracity of the state of legislative emergency (cf., the cited finding, sp. zn. The purpose of this institute is to shorten the parliamentary procedure due to the occurrence of exceptional circumstances, not to reach a consensus in Parliament, even if it is achieved across the political spectrum. Thus, only the legal definition of the reasons on the basis of which the state of legislative emergency can be declared, which are undeniably legitimate, constitutionally and verifiable, remains an obstacle to the possible abuse of procedure.
87. Practice However, the Chamber of Deputies is such that the reasons for declaring a state of legislative emergency are formulated very generally and interpreted fairly widely. The legislative emergency itself is certainly not used exceptionally and with respect for both the rights of the opposition and the fundamental democratic principles governing the legislative process [in particular in the second parliamentary term in 1996- 1998 and in the third parliamentary term in 1998- 2002, a number of important bills, such as the amendment of Act No. 247 / 1995 Coll., on the elections to Parliament of the Czech Republic and on the amendment and amendment of certain other laws, as amended, the budget rules of the Republic, the legislation on the state bond programmes, the amendment of Act No. 168 / 1999 Coll., on the insurance of liability for the operation of the vehicle and the amendment of certain related laws (Act on the insurance of liability from the operation of the vehicle), and amendments to the Act No. 483 / 1991 Coll. While the state of the legislative emergency is being declared for a certain period of time, the reason was to adopt such a bill, which was supposed to prevent significant economic damage, or, in the event of non-acceptance, the security of the state [for example, in November 2001, the government thus pushed for the maintenance of the current salary provisions to avoid a budget provisional, with the justification for the security threat in the event of the non-adoption of the budget in the period after 11 September, which was criticised in the plenary of the Chamber of Deputies on 15 November 2001 by a number of opposition Members. For example, the current Minister of Finance, and now a Member of the ruling majority, M. Kalousek, have identified these arguments of the Government as "crossing the limits," "purposeful," "immoral" and hiding "own incompetence (governments)"; The current judge of the Constitutional Court, M. Excellent, pleaded for a thorough justification of the government's proposal to declare a state of legislative emergency - cf. Wintr, J. Czech Parliamentary Culture, Prague 2010, p. 157 or Syllova, J. et al. Parliament of the Czech Republic, 2nd edition, Prague 2008, p. 243].
88. The Institute of Legislative Emergency is not, generally seen, a Czech specificity. Similar institutes are enshrined in the constitutions (!) of the Federal Republic of Germany (Article 81 GG) and Austria (at the federal level in Article 18 (3) to (5) B- VG). When comparing these institutes in the countries concerned, it is quite clear that their purpose, their use, constitutional limits and frequency of application differ significantly from the legislative emergency institute provided for in the JSPS. As stated in the Federal Republic of Germany, the declaration of a state of legislative emergency is laid down in Article 81 GG. It allows the adoption of laws without the need for a proper resolution of the Federal Assembly (Bundesstag, Lower House of Parliament). [The adoption of laws in a state of legislative emergency must be distinguished from the adoption of laws in a state of threat to the State, or a state of defence (Verteidigungsfall) within the meaning of Article 115a-115l of the GG] The state of legislative emergency is announced only by the Federal President on the Federal Government's proposal with the prior approval of the Federal Council (Bundesrat, Upper House of Parliament). However, the President is not obliged to comply with the proposal to declare a state of legislative emergency, he has his own political consideration as the end player. The constitutional and constitutional control of such a decision must then be limited to a review of compliance with the formal requirements for declaring a state of legislative emergency or a review of any abuse of the President's discretion (see Schmidt-Bleibtreu, B., Klein, F. Kommentar zum Grundgesetz, 9. Auflage, Kristel 1999, p. 1251). The state of the legislative emergency shall be limited in time to six months after its publication, and no further state of the legislative emergency may be declared after the expiry of that period, for the duration of the term of office of the Chancellor who requested the publication. Article 81 GG has never been applied in the history of the Federal Republic of Germany, since its application is practically superfluous, given the smooth democratic development in the Federal Republic of Germany, in whose political system the political parties are all in favour of seeking consensus, possibly seeking solutions in the new parliamentary elections [cf. Kunig, P. (Hrsg.): Grundgesetz - Kommentar, Band 3, 3. Auflage, München 1996, p. 311].
89. In Austria, Article 18 (3) to (5) of the Federal Constitutional Law (B- VG) foresees a legislative emergency at federal level. These provisions form the legal basis for dealing with exceptional situations (but do not concern the state's state of danger as referred to in Articles 9a and 79 et seq., B-VG), when the legislature at the federal level is not quorum for various reasons. The state of legislative emergency is defined in Article 18 (3) of the B-VG as a situation where the deterrence of obvious and irreversible damage to society requires the immediate adoption by the Constitution of a resolution of the National Council (Nationalrat, the Upper House of Parliament), which does not sit down at the appropriate time, cannot meet in time to act or prevent it from acting. In such a case, the Federal President, acting on a proposal from the Federal Government, may adopt an interim regulation (Notverordnung), which may amend the law and take measures to avert damage. The Federal Government may submit a proposal for action under the first sentence only with the approval of the Standing Subcommittee of the National Council (as amended by Article 55 (3) B-VG) and such regulation must be co-signed by the Federal Government (cf. Mayer, H. Bundes- Verfassungsrecht. Kurzkommentar. 2. Auflage. Wien 1997, p. 212). Each provisional regulation issued by the Federal Government shall immediately be submitted to the National Council convened by either the Federal President (if the National Council is not sitting) or the President of the National Council (if it is sitting) within eight days of the submission of the provisional Regulation. Within 4 weeks of the submission of the proposal, the National Council shall either adopt the relevant Federal Law instead of the Regulation or, by order, ask the Federal Government to repeal the Regulation immediately. The Federal Government must comply with the cancellation proposal immediately. If the Federal Government withdraws the provisional Regulation, the legal provisions repealed by the Regulation shall enter into force again on the date of the repeal of the Regulation. The constitutional limits of the provisional Regulations are determined by Article 18 (5) B-VG. Provisional Regulations may not amend the provisions of the Federal Constitutional Law and shall not constitute a permanent financial burden on the State, the Länder, the counties or municipalities, or the financial liability of the citizens. Furthermore, they may not concern the disposal of state property, taking action in cases referred to in Article 10 (1) (11) of the B-VG (the field of labour law, social and contract insurance and the labour and employment chambers) or in the field of association law and the protection of tenants. The available sources show that the state of legislative emergency foreseen in Article 18 (3) to (5) of the B-VG in Austria's modern history has never occurred. However, it should be noted that from a constitutional historical point of view, the provisional regulation at the time of the government of Federal Chancellor E. Dollfuße (1933-1934) was used to establish a dictatorship and remove virtually all attributes of the democratic rule of law (see Hoke, R. Österreichische und deutsche Rechtsgeschichte). This appropriation is intended to cover commitments remaining to be settled from previous years.
Own review
90. The Constitutional Court has taken the view that the declaration of a legislative emergency was justified in which the contested draft law was discussed. Decision No 7 of the Chamber of Deputies of 29 October 2010, as well as Government Resolution No 759 of 26 October 2010, justify the declaration of a state of legislative emergency briefly "threat of significant economic damage '. Further justification for the declaration of a legislative emergency can be drawn from Prime Minister P. Netime's observations at the 7th meeting of the Chamber of Deputies on 27 October 2010 and its 8th meeting of 2 November 2010, which are further elaborated in the amount of the President's recap of 27 January 2011. It follows from those observations that the reason for the declaration of a state of legislative emergency was the necessity of adopting all the government bills in question by the end of the year, because the draft law on the Czech State Budget for 2011 was based on the fact that these laws would become effective on 1 January 2011. The threat of significant economic damage to the State should therefore be that the State budget would be based on a non-existent legal situation, which would result in a deepening of the public deficit. This would also have an impact on the assessment of the credibility of the Czech Republic in the financial markets, which would have resulted in a reduction in the rating and in the price of the debt service. The exceptional circumstances were seen in the light of the alleged" obstruction' by the parliamentary opposition, which, in a situation where it was not possible to discuss all the draft government laws in question by a normal procedure to take effect at the latest at the end of the year, did not allow them to be discussed in advance at first reading (Section 90 (2) of the JRC) or at the time of shortening the deadline for hearing them in the relevant committees to 15 days (Section 91 (2) of the JRC). Similarly, the Prime Minister expressed these reasons at the oral hearing on 8 February 2011 (see above), where he was heard as a witness. It follows from his observations that it was in the aforementioned "obstruction" of the parliamentary opposition that the government saw a central reason for which it had to withdraw the original bills and adopt resolutions proposing their renegotiation in a state of legislative emergency in a shortfall.
91. The Constitutional Court dealt mainly with the question of whether the aforementioned "obstruction" of opposition Members can be regarded as an exceptional circumstance within the meaning of Article 99 (1) of the JRC. Under Paragraph 90 (3) of the JJPS, two parliamentary clubs or a group of 50 Members may object to the proposal that the Chamber of Deputies give its consent to the bill at first reading. The application of this objection makes it impossible to discuss the draft law. A similar objection may be made by the same bodies in accordance with Paragraph 91 (2) of the JRC in relation to a proposal to shorten the 60-day period for the consideration of a draft law in a designated committee under paragraph 1 of this provision. Both provisions are an expression of the protection of the rights of the parliamentary opposition (minorities), in this case protection against the fundamental limitation of the structure and duration of the legislative procedure, since the legislation allows such a reduction only for the approval of a significant majority of Members exceeding three quarters of their total number.
92. In the opinion of the Constitutional Court, if objections were raised when the draft of the contested law was dealt with, which were intended only to comply with the proper legislative procedure when the draft law was discussed, no element of extraordinary nature can be seen in such a procedure of the parliamentary opposition. This was the exercise of the right conferred by the Rules of Procedure of the Chamber of Deputies on a qualified minority of Members to protect their rights. This opposition procedure cannot be regarded as an exceptional circumstance even in the context of the fact that the draft law on the state budget of the Czech Republic for 2011, submitted by the Government to the Chamber of Deputies at the same time as the original draft laws, provided for the adoption of all government bills by the end of 2010 at the latest in terms of the structure of its revenue and expenditure. In this context, the Constitutional Court was based on the specificities of the State Budget Act in terms of its content requirements as well as its function within the constitutional and political system. The State Budget Act contains a summary of the expected revenue and estimated expenditure of the State Budget in the financial year. From a content point of view, it is only a law in the formal sense (cf. the finding of 10.9.2009 sp. zn. Pl. ÚS 27 / 09; 318 / 2009 Coll.), since its content cannot be the determination of rights and obligations. In spite of this, this law is of fundamental political importance, as it sets out in a binding manner the structure of State budget expenditure in particular, thereby allowing the government to implement its political priorities through the reallocation of revenue from the state budget (cf. However, even in this respect, the discretion of the Government and the Chamber of Deputies is not unlimited, because when determining the level and structure of the revenue and expenditure of the state budget, it must be based on the legislation in force which lays down rights and obligations affecting the state budget in the form of mandatorial expenditure. As a rule, the implementation of government priorities in the State Budget Act is accompanied by the necessary amendment of special laws to enable the required changes to be made to the revenue or expenditure side of the State Budget.
93. If the Government justifies the need to adopt a draft of the contested law in an abridged act with negative consequences resulting from the fact that its draft State Budget Act provides for such amendments, such argument cannot be considered acceptable in view of the legal grounds for declaring a state of legislative emergency. It is the responsibility of each Government to base its draft State Budget Act on the legislation in force and, if it considers it appropriate to make amendments to it, to implement in due time the appropriate draft law in order to achieve the required changes (to that end, the aforementioned statements of some coalition Members). Nor is it an exceptional circumstance where, in view of a particular political context, the State Budget Act itself would not have been adopted before the first day of the financial year. In such a case, until its adoption, the State's management would be governed by the rules of the budget commission within the meaning of Article 9 of Act No. 218 / 2000 Coll., on budgetary rules and amending certain related laws (budgetary rules), as amended. This, too, is a regular process of adopting the state budget and a standard way of enforcing the government's budgetary policy through appropriate legislative changes.
94. Therefore, the opposition's opposition to shortening the procedure does not constitute an element of excellence even in the context of the government's understandable interest in adopting the contested law before the beginning of the financial year. Should the Constitutional Court consider, in the case under consideration, a government-based reason for declaring a state of legislative emergency as constitutionally acceptable, this could have unfortunate consequences in the future, where it would be practically possible to limit (or even exclude) parliamentary debate at any time and thus prevent the draft laws from being discussed in a proper legislative procedure, only with reference to the fact that they own the draft State Budget Act for the next year foresees and is bound by the adoption of these legal standards. Almost every draft law is reflected in the revenue or expenditure of the state budget, so such a procedure would make it impossible for the parliamentary opposition to comment on draft laws and would make it entirely dependent on the will of the parliamentary majority.
95. The above conclusions cannot be interpreted in any way by the Constitutional Court reducing or relativising the legitimate interest of the government in the credibility of the Czech Republic in financial markets, which is reflected in favourable ratings. On the contrary, it is aware of the importance of these facts for the state of public finances as well as for the possibility of the Czech Republic promoting its interests and the interests of its citizens. However, that interest, which has long been reflected in the budgetary and economic policy of individual governments, does not relieve public authorities of the obligation to enforce it under the law and within its limits (Article 2 (3) of the Constitution of the Czech Republic). Questions relating to the reduction or increase of the revenue and expenditure of public budgets, the amount of taxes and levies as well as social benefits or entitlements from the state budget are not and are usually not subject to a social consensus. The search for ways and tools for their solution is always conditional on the political-idea direction of the government or the parliamentary majority. The role of the Constitutional Court is not to assess the contested laws by measuring their effectiveness and thus interfering in political competition. The Constitutional Court is called upon to provide protection for the political competition of democratic forces, as well as others, as set out above in the constitutional principles relating to the procedure laid down for the adoption of draft laws. The Constitutional Court cannot resign from its function of constitutional protection solely because of the general and hypothetical risk, which is not supported by any specific data, that its findings in the standard control procedure could have a negative impact on the evaluation of the Czech Republic by the credit rating agencies, or that it would result in a negative reaction from the financial markets.
96. The Constitutional Court is aware that in the cited finding sp. zn. Pl. ÚS 12 / 10 accepted the adoption of Act No. 418 / 2009 Coll., amending Act No. 236 / 1995 Coll., on the salary and other formalities associated with the performance of the function of representatives of the State Government and of certain state authorities and judges and Members of the European Parliament, as amended, and Act No. 201 / 1997 Coll., on the salary and certain other formalities of the public servants, and on the amendment and addition of Act No. 143 / 1992 Coll., on the remuneration and remuneration for the employment of the budget and in certain other organisations and institutions, as amended, in a state of legislative emergency, although its object, which was reduced the salaries of public officials, also aimed at reducing the expenditure of the state budget. However, this case was significantly different from the present case. Act No. 418 / 2009 Coll., together with Act No. 362 / 2009 Coll., amending certain laws in connection with the draft Act on the State Budget of the Czech Republic for 2010, was adopted in exceptional political circumstances (abrogation of early elections quoted by the finding of sp. zn. Pl. ÚS 27 / 09) and, under the influence of the threat of a major and unplanned increase in the public deficit as a result of the economic crisis, when the urgency of the situation and the need for rapid measures existed, in the light of the ongoing economic crisis, a consensus across the political spectrum, which the Constitutional Court implicitly acknowledged the relevance (cf.
97. After all, the conclusion on the exceptional circumstances justifying the declaration of a legislative emergency in the case under consideration also calls into question the fact that, as the Prime Minister confirmed in his interview, the government's intentions contained in all the four government bills discussed in the shortfall were already well known in advance. In this context, it can be pointed out that the submission of the original government bill took place first on 4 October 2010, with the first reading of the law not until 26 October 2010. The explanatory memorandum to the draft law or the relevant debate at the 7th session of the Chamber of Deputies on 26 October 2010 does not imply that the Government would justify the adoption of the draft law by the existence of exceptional circumstances. On the contrary, the legislator and the representatives of the majority of governments have repeatedly been stressed only by the concern that the legislative process concerning all government bills which were subsequently discussed in a state of legislative emergency will not be completed by the end of 2010.
98. On the basis of the above, the Constitutional Court also concluded that the only reason for the negotiation and approval of the contested law by the Chamber of Deputies in a state of legislative emergency in a short act was to jeopardise its early adoption in order to take effect at the latest by the end of 2010, which was prevented by the opposition procedure under Articles 90 (3) and 91 (2) of the JSPS. However, the reason found cannot be regarded as a legitimate and constitutionally viable reason for declaring a state of legislative emergency in accordance with Article 99 (1) of the JSPS. Therefore, the Constitutional Court concluded that, in the case under consideration, all decisions taken by the authorities of the Chamber of Deputies on the Government's proposal, as well as the very decision on the duration of the legislative emergency and on the duration of the conditions for the hearing of the contested law in an abridged act (when deleting the first reading within the meaning of Paragraph 99 (6) of the JRC - see Resolution 112 of the 8th meeting of the Chamber of Deputies - vote 7), were made in contravention of the above-explained aspects characterising the constitutional democratic principle. It was therefore possible to conclude the constitutional review at this stage by stating that Article 1 (1) and Article 6 of the Constitution of the Czech Republic and Article 22 of the Charter were infringed in the process of adopting the contested law (all the more so in a situation where objections to the content of the law were not made relevant).
99. In this context, there was no need to address other objections to the process already under the conditions of legislative emergency and abridged action. In particular, there was no need to examine the Senate's competence following the composition in which it voted on the contested law. Nevertheless, the Constitutional Court considers it necessary to add, only as an obiter dictum, that the defects of the subsequent process in the Chamber of Deputies were, on the one hand, that it was not only possible to check, in fact, the identity of the draft draft of the Government's proposal for legislative emergency, let alone the details of its content, and thus to assess its possible impact (that it is not only a mere hypothesis, but also the statements of some of the coalition Members presented in the media after the adoption of one of the relevant legislative proposals). In addition, democracy was undoubtedly shortened by the already limited procedure for adopting the contested law by deleting the general debate in the second reading, despite Resolution 16 adopted by the Committee on Social Policy at its 4th meeting of 2 November 2010, which recommended that the Chamber of Deputies discuss the draft of the contested law in the general debate (see paragraph 31).
100. The examination of this matter, as well as the experience of declaring a state of legislative emergency in the past, including consideration of the degree of limitation and reduction of the rights of the current parliamentary opposition, and in particular of intervention in democratic principles controlling the legislative process, lead the Constitutional Court to seriously doubt the constitutionality of the current regulation of the legislative emergency institute. It would only be possible to address the existing legislation provided it is interpreted as strictly, constitutionally and responsibly. However, this has not happened in the present case and often or in the past. The Constitutional Court considers that the Chamber of Deputies should consider amending its Rules of Procedure in the indicated direction to reflect the constitutional principles set out above in the JŘPS.
Annual part of the finding and postponement of enforceability
101. The Constitutional Court has already stated in the past that "a possible assessment (...) of a breach of the principles of the legislative process in the past will link the proportionality test in relation to the principles of the protection of the legitimate trust of citizens in law, legal certainty and acquired rights, possibly in relation to another constitutional order protected by the principles, fundamental rights, freedoms and public goods. '(Opinion of 27.3.2008 sp. zl. ÚS 56 / 05; N 60 / 48 SbNU 873, 257 / 2008 Coll., paragraph 44). In this finding, the Constitutional Court pointed out the need to take into account and consider the consequences of any repeal of the law on other constitutional rules of protected value when assessing procedural errors in the adoption of laws, without at the same time calling into question their material constitutionality. If the Constitutional Court had started to comply with the proposals justified" only for those procedural reasons at the limit of constitutional order and regulated law, there would have been a state of considerable legal uncertainty, in particular where it would not have been possible for the otherwise contested law to be ruled out from the point of view of content' (point 44 of the finding), pointing out that "the formal repeal of legislation... (nothing else would have been considered in the present case) would have meant a danger where the same regulation would not have been re-adopted only if all the requirements of the legislative procedure had been met '(point 45 of the finding).
102. Those legal conclusions should also be taken into account when deciding on the case by the Constitutional Court, but it is necessary to clarify them further. The role of the Constitutional Court in assessing whether a law has been adopted in the legal manner prescribed by law is not to be a final arbitrator in disputes as to whether "only 'the rules of procedure of the two chambers of Parliament or other procedural rules have been infringed. The function of the Constitutional Court is to protect constitutionality and must therefore assess whether, in the process of adopting the law, the requirements laid down by the Constitution of the Czech Republic for the adoption of the law have been complied with (cf. the finding of 18.8.2004 sp. zn. Pl. ÚS 7 / 03; N 113 / 34 SbNU 165; 512 / 2004 Coll.). Thus, the constitutionality is assessed only by procedures, not by the content of the final form of legislation.
103. The logical consequence of the literal taking over of the above conclusions contained in the finding in the sp. zn. Such a conclusion would, however, remove the importance of those constitutional principles that affect the course of the legislative procedure, as this would cease to be a reference criterion for reviewing the constitutionality of legislation. In addition, it would become an obsolent and dysfunctional order from the Constitutional Court to the conclusion of Section 68 of the Constitutional Court Act (to examine whether the laws were adopted in the prescribed manner), and the Constitutional Court has already expressed its views on the review algorithm in the cited finding of point sp. zn. However, this is not acceptable in the light of Article 87 (1) (a) of the Constitution of the Czech Republic, as the provision of the Constitutional Court Act is its implementation. Thus, the Constitutional Court had to deal explicitly with the question of whether certain material restrictions were imposed which, under certain circumstances, would prevent the repeal of the legislation only because of the unconstitutional nature of the legislative procedure. In this context, it is necessary to distinguish between whether the conditions for the adoption of a law (for example because of the absence of the consent of one of the chambers) or the defect which has affected the constitutional order of each party to the legislative process have been met at all (for example because of the absence of the consent of one of the chambers), or whether the rights guaranteed by the parties to the legislative process have been affected by the constitutional order, the use of which is fully in their possession.
104. The Constitutional Court in the present case decides on a proposal by which a group of opposition Members seeks the annulment of the contested law immediately after its adoption on the ground that it has been reduced to its constitutionally guaranteed rights in the legislative process. However, another situation would have occurred if a group of Members had submitted a similar proposal with a longer period of time, i.e. only a few months or even years after the adoption of the law. Such a time span could be seen as (additional, tacitly) the agreement of the Members concerned to the parliamentary majority procedure. At the same time, such a procedure would no longer allow for the real protection of the violated rights of the Members concerned, as Parliament would decide on the draft law under changed circumstances or in a different proportion of force in its chambers. At the same time, the Constitutional Court would have to take much more account of the principle of legitimate trust of citizens in law, legal certainty and the principle of acquired rights (cf. the finding of 2 December 2009 sp. zn. The repeal of such legislation would result from the passage of time on an ever-increasing set of addressees, while its application would not be burdened from a point of view by finding unconstitutionality.
105. For the reasons set out above, the Constitutional Court cannot maintain the verbatim version of the previously stated conclusion that the repeal of the law cannot be accepted solely for reasons of a defective legislative procedure (see sp. zn. It is not even compatible with the settled case-law of the Constitutional Court relating to this issue, which is so strongly formulated. It is not the role of the Constitutional Court to examine whether a draft law would lead to a different outcome (content of the law) from that of a defective procedure. Its task is to protect the constitutional principles that apply to the prescribed procedure (cf. quoted finding sp. zn. Pl. ÚS 5 / 02). However, it is always obliged to take into account other contexts, in particular to take into account possible effects on private persons in terms of respect for the principle of legal certainty and good faith in the validity of the law. However, since, in the present case, a group of Members submitted a motion for annulment of the contested law after it had been published in the Collection of Laws and, in its proposal, raised relevant objections to the course of the legislative procedure, nothing prevented the Constitutional Court from adopting the annulment of the law, for the above described procedural errors of the parliamentary majority reaching constitutional relevance.
106. The Constitutional Court considers it necessary to explain why it has only acceded to the repeal of the amending Act, not to the amended Act, as is the case with its most general practice [cf. sp. zn. Pl. It should be noted that the appellants only made the proposal in relation to the amending law, and the Constitutional Court, as it is known, feels constantly bound by the petition. However, the fact that only the process of adopting the contested law was questioned does not raise any relevant objections to its content. This clearly distinguishes the present case from the cases pending by the Constitutional Court in the past and, with reference to paragraph 98 of this decision, it was not possible to review the provisions amended. However, it should be stressed that the amended provisions in terms of their validity and enforceability share the fate of the amended act currently under consideration.
107. Since the Constitutional Court found a contradiction of the contested law to Article 1 (1), Article 6 of the Constitution of the Czech Republic and Article 22 of the Charter, it decided, in accordance with Article 70 (1) of the Law on the Constitutional Court, to repeal it by 31 December 2011. The Constitutional Court has taken into account the negative consequences that could arise in the event of the annulment of the Act on the date of the publication of a finding in the Collection of Laws, or at the time of its annulment with the effect of ex tunc, both from the point of view of the legal certainty of the addressees of the legislation in question and the impact of such action on the State budget. It should be added, however, that if a new regulation is not adopted before the date of entry into force of the operative part of this finding, the regulation contained in the legal order will be revived on 1 January 2012 before the date of application of Act No. 347 / 2010 Coll., repealed by that finding.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions under Section 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the Judges Stanislav Balík, Ivan of the Janů, Vladimir Krka, Dagmar Lastovecká, Jiří Mucha and Michaela Židlická to decide.
Contents
I.
I. A) Ústavní normy a principy ovládající legislativní proces
I. B) Proces přijímání napadeného zákona a jeho ústavní vady
I. B.a) Zneužití legislativní nouze
I. B.b) Nepředvídatelné svolání mimořádné schůze Poslanecké sněmovny
I. B.c) Neodůvodněné odepření obecné rozpravy
I. B.d) Odepření práva hlasovat zvoleným senátorům
I. C) Popis okolností legislativní procedury přijímání napadeného zákona
I. D) Shrnutí
II.
III.
IV.
V.
V. A) Prameny parlamentního práva a demokratické principy legislativního procesu
V. B) Role parlamentní opozice v legislativním procesu
V. C) Ústavní kritéria pro vyhlášení stavu legislativní nouze a projednání návrhu zákona ve zkráceném jednání podle § 99 JŘPS
VI.
VII.
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Regulation Information
| Citation | The Constitutional Court found No. 80 / 2011 Coll., on the application for annulment of Act No. 347 / 2010 Coll., amending certain laws in connection with austerity measures under the jurisdiction of the Ministry of Labour and Social Affairs |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 25.03.2011 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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