The Constitution of Czechia: A Contextual Analysis

Description

Czechia is an outlier in Central Europe, as it has not witnessed significant democratic backsliding since the fall of the Berlin Wall. Still, it is a fragile democracy that is in the state of democratic careening. The democratic game has changed in decisive ways since the creation of Czechia in 1993, but the Czech democracy neither collapsed nor became more firmly consolidated in the process. This book examines why through the lenses of sociological constitutionalism. It explores not only the Czech pluralist constitution, key constitutional principles, the interaction between the legislature, executive and the judiciary, the role of local governance and application of fundamental rights in practice, but also the morphing of Czech constitutionalism as a result of personal politics, conventions, informal institutions and constitutional narratives and sentiments. It explains broader societal trends that shape a lived constitution, such as implosion of the system of political parties in the 2010s, entrenchment of private interests in the state and in party politics, low trust in the EU, disillusion of ordinary people by the current form of Czech democracy and the growing inequality gap in a highly egalitarian society. Besides providing a contextual and authoritative overview of the principles, doctrines and institutions that underpin the Czech pluralist constitution, this study will allow students and scholars of law and politics to develop an informed view of how it actually works and what its main challenges are. Acknowledgements Contents Abbreviations Table of Cases Table of Legislation Introduction Further Reading 1. The Rise of Czech Constitutionalism: History and Context I. The Rise and Fall of the Kingdom of Bohemia II. Influence of Foreign Legal Cultures III. Czech Constitutional Scholarship and its Changing
Role Over Time IV. Inter-war Czechoslovakia V. The Communist Legacy VI. Democratic Transition and Dealing with the Past VII. The Dissolution of Czechoslovakia VIII. Return to Europe IX. Where are the People? X. Conclusion Further Reading 2. The Challenge of a Pluralist Constitution I. Drafting the 1993 Constitution II. The Pluralist Constitution III. The Eternity Clause IV. International and Supranational Sources V. Super-statutes VI. Constitutional Conventions VII. Judicial Decisions as a Source of Constitutional Law VIII. Conclusion Further Reading 3. Constitutional Principles I. The Democratic Principle II. The Rechtsstaat Principle III. Principle of the Separation of Powers IV. Principle of Sovereignty V. Principle of the Unitary State VI. Protection of Fundamental Rights VII. The Implicit Welfare State Principle VIII. Conclusion Further Reading 4. The Czech Parliament I. Basic Structure: The Chamber of Deputies
and the Senate II. Competences of the Parliament and its Chambers III. The Procedural Limits of Parliamentary Power IV. Parliamentary Elections and the Czech Political
Party System in Turmoil V. Scandals, Corruption and Immunities VI. Conclusion Further Reading 5. The Growing Tension within the Double-Headed Executive I. The Challenge of a Double-Headed Executive II. Over-achieving President and Under-achieving
Governments III. The State of Emergency and the Hidden Powers
of the Executive IV. The Quest to Depoliticise the State Administration V. Conclusion Further Reading 6. Local Governance I. The Centre and the Periphery II. The Structure of Territorial Self-Governance III. Election of Municipal and Regional Bodies IV. Direct Democracy at the Local Level V. The Rise of the Municipal Power VI. It is All About Taxes and Eu Subsidies VII. Local Self-Governance in the Eu VIII. Conclusion: Towards Moderate Decentralisation Further Reading 7. The Judicial Branch I. Setting the Scene: Key Players within Czech Judicial Politics II. Who are the Czech Judges? III. The Constitutional Court IV. Basic Features of the Ordinary Judiciary V. Civil and Criminal Courts VI. Administrative Courts VII. Prohibition of Special Courts and Tribunals VIII. The War(S) of the Courts IX. Czech Courts and European SUPRANATIONAL COURTS: A Complicated Relationship X. Constitutional Politics of the Judicial Branch XI. Conclusion: From the Judicialisation of Politics
to the Politicisation of the Judiciary Further Reading 8. Human Rights Constitutionalism I. The Charter and the Rest: The Pluralist Nature Of Human Rights Protection In Czechia II. How to Challenge the State: Constitutional Review, General Courts, Administrative Review And The Ombudsman III. Human Dignity as a Fundamental Right? IV. Proportionality as a Key Unifying Principle? V. Positive Obligations and the Challenge of Socio-Economic Rights VI. Public/Private Distinction and the Importance of Drittwirkung VII. The Influence of the European Convention on Human Rights VIII. Selective Judicial Activism - Expounding or Expanding Human Rights? IX. Conclusion Further Reading Conclusion: Dynamics of Constitutional Change and the Search for Constitutional Identity I. Formal Amendments in a Rigid System II. Constitutional Interpretation and Informal Amendments
as a Mechanism of Constitutional Change III. The Unconstitutional Constitutional Amendments
Doctrine IV. Conflicting Legacies and the Search for Constitutional Identity V. Concluding Remarks: A Danger of Democratic
Backsliding? Index