A written legal system, comprehensible to literate citizens and protected by the armed power of the state, is one of the most precious legacies of ancient Rome. The body of Roman law, from the Lex duodecim tabularum of the 5th century BC to the Corpus iuris civilis of the 6th century AD, is a major source of the centuries-long development of European legal culture. What we expect from a legal order is a clear description of the limits within which the state exercises its executive power, the permissible ways in which it does so and the guarantees that these limits and ways will not be exceeded. This establishes the predictability of the state’s behaviour, which enables individual citizens to plan their lives wisely and to allocate their own initiative and creative powers over time. It can therefore be concluded without further ado that a properly constructed legal system is a prerequisite for the successful development of society.
The Constitution of the Czech Republic declares in its first article and in its first paragraph that the Czech Republic is a sovereign, unified and democratic state governed by the rule of law based on respect for the rights and freedoms of man and of the citizen. The extent to which we are aware of these facts in our daily lives certainly corresponds to the extent to which our constitutional order is organically linked to the real life of society.
The Preamble to the Constitution also upholds „the spirit of the inviolable values of human dignity and freedom“, and refers to our state as the homeland of equal and free citizens. It is only with a true and full awareness of the inviolability of human dignity, equality and freedom of citizens, which is not subjected to attempts to revise them, that the topics of constitutionalism, statehood and all others that flow from them can be discussed.
But how to distinguish a properly constructed legal order from a defective one? The prerequisite is that the legislative body is a domestic sovereign, be it the legislature or another organ of the state, which first and foremost looks after the interests of its country and its population, builds the legal system judiciously and in small steps, in accordance with the principle of organic growth and with respect for domestic legal tradition, customs and usages. To be a sovereign is to realise the supremacy of one’s own law over foreign legal norms in one’s own territory. This phenomenon is now the hallmark of a superpower. Just as in antiquity only Roman law applied to a Roman wherever he was in the world at the time, today only citizens of global powers enjoy this privilege. Furthermore, the situation of the Czech Republic as a current member of the European Union is specific in that, as part of our membership of this organisation, we have voluntarily transferred a substantial part of our rights and competences to this supranational level.
To have a state does not automatically equal to having a statehood. It is manifested by the ability to govern independently within the territory defined by state borders. It is a fact distinct from the institution of the state itself. The state may be limited in its basic functions – whether legislative, executive or judicial – by being subject to foreign power in these areas, and hence lacks the quality of statehood. Therefore, statehood is fully present only in a sovereign state which is not subject to any higher governmental authority, is a subject of international law and can enter into relations with other states at its own discretion.
Statehood is, by definition, a value category. It denotes a political, legal and cultural value that has emerged historically as the sum of the state authority, symbols and customs associated with it. They express the distinctiveness of a particular state and its people. It is therefore an irreproducible historical phenomenon, which reflects both the contingencies of history and the necessary (natural) structure of social existence.
The opposite is the situation where the legislator is only an imagined sovereign who submits to powerful foreign forces and interests in all essential respects. In such a case, the first casualty tends to be the predictability of the environment, thereby removing the most valuable thing that the legal order is supposed to provide. This manifests itself outwardly in symptoms that we are familiar with from our present reality. First, there is the hypertrophy of law. The number of norms and regulations is growing at such a dizzying pace that the citizen prefers to resign on knowing them. He then moves through his own life like a blind man going down memory lane, using his previous experiences. Then there is the rapidity of change, the permanent ‚legislative whirlwind‘, where amendment follows amendment, so that even a lawyer sometimes finds it difficult to find out what actually applies. Finally, it is also the constant effort to redefine institutions that have been established for a long time, are alive, and whose new or different definition is not needed by society as a whole.
In the context of constitutionalism, the protection of statehood, or the protection of fundamental values, in addition to the issues of sovereignty and sovereignty, questions arise about the so-called juristocracy, the limits of representative democracy and the timeless governance of the state, including in the international environment. Moreover, the postmodern world often poses obstacles to traditional democratic modes of state governance and its development based on traditional values. In a world of conflicting interests, tendencies of globalism, pan-globalism or universalism, it is relatively easy to forget our Constitution, the Charter of Fundamental Rights and Freedoms and other constitutional laws, and what is more, to forget the values from which these supreme laws spring, and without which they would be mere soulless, self-serving rules.
THE CASE OF THE FIRST CZECHOSLOVAK REPUBLIC
The First Czechoslovak Republic is an example of the efforts to build a properly constructed legal order. It began with the reception of the Austrian legal system, i.e. complete legal continuity, because the „men of 28 October“ were well aware that it was a quality legal system that had enabled the Czech nation to develop quite extraordinarily in the last half century before the First World War. Subsequently, norms were adopted which were to establish and permanently secure state sovereignty. The Constitution of the Czechoslovak Republic was adopted in February 1920, along with the electoral laws, the language law, and the law on county government[1]. This basic set of laws was agreed upon by the representatives of the sovereign, i.e., the Czechoslovak nation, who formed the revolutionary National Assembly on the basis of pre-war mandates.
This basic set was agreed upon by the representatives of the sovereign, i.e. the Czechoslovak nation, who formed the revolutionary National Assembly on the basis of pre-war mandates. The five Czech parties, supplemented by the Slovak club, were clear that the representatives of the numerous national minorities, especially the Czech Germans, who were not allowed to enter parliamentary life until later, with the first elections in May 1920, must have no influence on the formulation of the Constitution and the three accompanying laws. At the same time, it was clear that the Constitution was the culmination of the 1918 coup d’état, and therefore, even with the three laws, it should be adopted by the agreement of all, not by a momentary majority against a minority, which might not take it at face value and might toy with the idea of its future recodification. This involved painful compromises, but it was achieved – the Socialists had to accept that there would be no separation of church and state, the National Democrats had to accept a softer version of the language law, and the People’s Party had to accept the county system.
In spite of all the above, the February days of 1920 also revealed one unfortunate feature of political thinking which in later decades proved capable of completely engulfing our politics, namely unquestioning loyalty to the great power hegemon of the time. In a bitter clash over the formulation of the language law, the National Democrats failed to establish Czech or Slovak as the „state language“ (which was based on the Austrian legal tradition in which German had the status of a state language alongside other „provincial languages“), and had to come to terms with the entirely new concept of „official language“. Foreign Minister Edvard Beneš based his defence of this new term on the harmony with the language of the Treaty of Saintgermain, which generally demanded the protection of minority languages against the official language. Ferdinand Peroutka, in his “Budování státu” essay ironcially enough wrote: „The agreement (of the victorious power) could be satisfied with a nation that maintained such a respectful loyalty to it and that cared to maintain in everything a connection with the peace treaty that established its independence. Indeed, the leading idea of Czechoslovak policy at that time was to lean in all things on the Agreement, the only present guarantee of the new European order, and to share faithfully with it the bad and the good.“[2] Then, as many times later, the proverbial loyalty to the grave was of no use to us, we did not receive any gratitude. Already five years later, at the Locarno Conference, the powers of the Agreement agreed to the formulation that the French and Belgian borders with Germany were a „national border“, while the Czechoslovak and Polish borders were only and only an „existing border“. The road to our Munich humiliation in 1938 was set.
THE INFLUENCE OF THE SO-CALLED “EURO-AMENDMENT” ON OUR STATEHOOD
Sovereignty is traditionally understood as the ability of the so-called Westphalian state to exercise state power over a defined territory over a defined population. Sovereignty, whether internal, i.e. as the ability of the state through its institutions to govern „its“ population within its own territory, or external sovereignty as the ability to resist various external influences under any form of government, can always be viewed in both directions on the imaginary citizen-state vertical. That is, whether statehood is based on the citizen, the individual, or, conversely, whether statehood and the ability of the state to be a state is a pre-requisite for the ability of the individual to maintain his or her individuality.
It is worth asking within what limits and intentions the Czech Constitution and constitutional laws do not put the primacy of the law on national interests and do not give priority to Czech law, and unfortunately not even the reservation of the fact that Czech interests are decided from here. The so-called Euro-amendment of the Constitution of 18 October 2001 (No. 395/2001 Coll.) has thus certainly resulted in an imaginary opening of the door for the direct influence of international law and institutions on the Czech legal order. It introduced several changes to the Constitution which fundamentally curtailed the sovereignty of the state.
It was the Euronovel that gave the Constitution the new wording of Article 10, respectively 10a and 10b, which have the main effect of:
Although there are correctives that can be applied to certain limitations on these transfers and the primacy of international law (in particular Article 9(2) of the Constitution, which provides that alteration of the essential elements of a democratic state governed by the rule of law is inadmissible), or the jurisprudence of the Constitutional Court in the Sugar Quota ruling[3], it must be acknowledged that at this point our state’s sovereignty, in the sense of its ability to decide its own affairs on its own territory, acquired an inherent legal defect. Since then, the transfer of powers can only be impeded – reversing it is much more difficult. In a situation where international treaties play a dominant role and where the above-mentioned transfer of powers to international organisations and institutions takes place, there is no choice but to gradually untie such treaties or take back powers.
In practice, the current state of supremacy of EU Community law over national law means that the nation state has only limited, residual sovereignty. However, only a very small circle of people knows that the doctrine of supremacy of Community law does not derive directly from the primary law of the EU, i.e. from the set of founding and successor treaties, but from the case law of the Court of Justice of the European Communities in Costa v. ENEL(6/64). This is also why we have recently seen a Polish attempt to declare the supremacy of the domestic constitutional order by a decision of the constitutional court there.
SOVEREIGNTY COMES FROM THE INDIVIDUAL, NOT THE OTHER WAY AROUND
I believe that on the imaginary citizen-state vertical described above, one must always start from the individual. Only a citizen who is aware of his or her rights, and who is concerned about them, is capable of forming a sovereign state in conjunction with like-minded citizens. Simply put: sovereign citizens form a sovereign state, not the other way around.
The Constitution in its Article 2(1) provides that it is the people who are the source of all state power. Certainly, in the modern conception of democracy, there are no obstacles to a functionally meaningful and logical conception of representative democracy. Functional meaningfulness, however, pales to the point of disappearing altogether the more various administrative or other practical intermediate links are placed precisely between the people and the law. It can be successfully argued that a people who are governed by „foreign“ law and law are not sovereign, and such a people cannot successfully form a sovereign state.
WHAT RIGHTS DOES A SOVEREIGN INDIVIDUAL HAVE, AND HOW DOES A SOVEREIGN STATE BEHAVE?
The authors of the Constitution approached the drafting of constitutional laws with the knowledge that society changes, opinions age, and preferences change – yet there are values that cannot be described as anything other than fundamental, and that have a durability that transcends not only electoral terms but generations. It is not for nothing that the Constitution of the Czech Republic also contains what constitutional lawyers refer to as the „perpetuity clause“ – Article 9(2) of the Constitution, which states that „it is inadmissible to change the essential elements of a democratic state governed by the rule of law.“
In my view, whenever there is any suggestion of removing, simplifying in practice, or limiting fundamental rights with respect to any emergency situation, it must be remembered that the Constitution of the Czech Republic and the Charter of Fundamental Rights and Freedoms are not laws of supreme normative force for no reason.
I am very critical of the ongoing erosion of fundamental human rights in the Czech Republic, which is clearly an existing and urgent social problem. This is in no way a manifestation of a lack of confidence in the ability of democracy to defend itself or a manifestation of some momentary hysteria. However, in accordance with the preamble to the Constitution, it is necessary to be ‚mindful of the bitter experience of times when human rights and fundamental freedoms have been suppressed in our homeland‘.
For enumerated fundamental rights are not meant to be and are not mere proclamations. Moreover, it turns out that the seemingly least concrete rights are, in the long run, the most important ones. It is only in a situation where the individual is aware of these fundamental rights that he can claim them. A state in which the individual stands up for his fundamental rights can then be a naturally sovereign state.
We speak of constitutional laws as laws of the highest legal force (followed by ordinary laws and subordinate norms such as decrees and regulations, which are laws of lower legal force). Even if we do not find any explicit conflict-of-laws rules in the law, the rule is that „lex superior derogat legi inferiori“ – that is, that a legal norm contained in a higher legal force rule prevails over a norm in a lower legal force rule.
It is therefore correct that amending constitutional laws is more complex than ordinary legislation, and amending them requires a more rigorous procedure – approval by both houses of parliament by qualified majority without the need for presidential consent, and with the possibility of amendment again only by constitutional law. This process is designed to ensure that amendments to constitutional laws are carefully considered and have broad support from the political representation, reflecting their important role in our legal order.
THE ISSUE OF STATES OF EMERGENCY
I believe that the interpretation of fundamental human rights (as described in the Charter) and the Constitution of the Czech Republic are sound and well thought out, and need to be endlessly reminded and instilled in individuals and the imaginary conscience of the state. The more the state is able to put these rules into practice, the more sovereign it is.
It is not for nothing that if we allow the government (more precisely, the state apparatus, the establishment) to break the law during an emergency, the government will next time create an emergency situation that makes it easy to break the law.
Democracy in its modern sense has come to be taken for granted by society, and it does not at all acknowledge the risks of a time in which it ceases to focus on its maintenance. In other words, we have become so sure of the theoretical concept of democracy (as guaranteed by the Czech Constitution) that we do not even admit that it could be eroded in the long term and irreversibly.
Although fundamental rights and freedoms are inalienable, non-barred and irrevocable, this certainly does not mean that they are unlimited in extraordinary and fundamentally threatening situations. Nevertheless, it is true that the limits of fundamental rights and freedoms can only be regulated by law and must apply equally to all cases that meet given, always identical conditions. It is also true that, in applying the provisions on the limits of fundamental rights and freedoms, their substance and meaning must be respected and, lastly, that such limits must not be abused for purposes other than those for which they were established.
In recent times, we have seen attempts to designate a state of emergency so exceptional that the aforementioned fundamental rules, rights and freedoms guaranteed by constitutional law must be set aside for the moment, with the promise that once the state of emergency has passed, they will be so elastic that they will resume their original form. However, this cannot be the case by definition, of which the authors of the Charter were certainly aware – otherwise Article 4(2) of the Charter of Fundamental Rights and Freedoms would be merely a kind of argumentative ornamentation of the legal order. The above becomes more important in a situation where the reasons for states of emergency are external circumstances, originating inherently elsewhere than in the Czech Republic.
THE PRIMACY OF FREEDOM AND EQUALITY IN DIGNITY AND RIGHTS
Article 1 of the Charter of Fundamental Rights and Freedoms states that „Human beings are free and equal in dignity and rights.“ This is in line with the Universal Declaration of Human Rights, which identifies the same as a supreme value. Therefore, any attempts to remove or so-called modern (usually narrow) interpretation of individual fundamental rights should be viewed with particular criticism. This is particularly visible in the area of attempts to restrict freedom of expression, or the freedom to make decisions about one’s health or the inviolability of one’s person.
Under the Charter, no one can subcontract or assign or grant as a pledge his or her rights. Yet so-called states of emergency de facto do. For example, if a health emergency requires the undergoing of a medical procedure and makes either the use of a service contingent upon it, or if there is some form of dehumanization or dehumanization of certain groups of people by the public authorities, then one cannot speak of freedom and equality in dignity and rights.
It is appropriate to stress that fundamental rights and freedoms are guaranteed to all without distinction as to sex, race, colour, language, religion or belief, political or other opinion, national or social origin, membership of a national or ethnic minority, property, birth or other status.
From my point of view, any subtle attempts to remove, deconstruct or revise fundamental rights, even if they may be well intentioned, should be viewed with a highly critical eye, but I doubt that this is the case in most cases. Repeatedly, there is a classification of views into majority and fringe views, on the grounds that these views may in future form moats between different groups in society, despite the fact that the law simply forbids it. What I am talking about here is the ostracisation and dehumanisation of minority views, either generally by public officials or by silencing specific opponents without rational debate. The Charter explicitly states that the state must not bind itself either to an exclusive ideology or to a single religion. Fundamental rights are then guaranteed regardless of worldview.
Therefore, it is unacceptable for someone to become a second-class citizen if they, for example:
It is also unacceptable that fundamental rights should be reduced. For example, that freedom of speech should be manifested only by the fact that, in simple terms, a citizen will not be arrested for exercising it. The essence of freedom of speech should undoubtedly have a higher level of protection than simply being reduced to the existence of imaginary ‚speakers‘ corners‘, as we know them from London’s Hyde Park.
FUNDAMENTAL RIGHTS AND PRIVATE ACTORS
With a certain degree of exaggeration, it can be said that the concepts of fundamental rights operate on a kind of „anti-state“ principle – they set out areas in which the state is forbidden to interfere, or areas in which the state must guarantee something, or areas in which it must respect the free decisions of the individual. These are acts directed mainly towards the state (public authority).
However, the public authority is only one of the actors. Examples include freedom of expression in the age of the internet, social networks, the collection of personal data and the seemingly endless invasion of privacy in the form of monitoring consumer behaviour or other interference with fundamental rights by private actors with significant market power. On the face of it, these entities do not guarantee fundamental rights to anyone.
The ruling of the Constitutional Court Pl. ÚS 38/06 of 6 February 2007, however, states that the one who bears the obligations arising from fundamental rights is not only the public authority, but also the subjects of private law. For example, private entities are not a priori obliged to give each other the space to exercise freedom of expression – if they directly prevent each other from doing so, there is clearly an interference with the fundamental right to freedom of expression. If the majority of social debate shifts to private social networks, then pluralism of opinion and freedom of expression can hardly be guaranteed by the state – unless at the same time private actors are led precisely to respect fundamental rights. This is where the importance of the ability of the courts and public authorities to impose conditions on the functionality of private actors to interfere with citizens‘ rights becomes apparent. For example, although Facebook was ostensibly created as a tool for free communication with friends, today it is primarily engaged in collecting and selling data about its users, marketing to them, and sophisticated ways of restricting arbitrarily selected opinion groups. This group of issues includes the right to be offline, i.e. not to have a social media account. Such accounts are often abused, for example, by large employers who want to keep information about their employees easily accessible, while ostracising those who do not have such accounts.
Similarly with the right to bear and use cash. It is not just a matter of having the choice whether we want to be clothed or naked in front of banks and authorities, or whether we pay with cash or contactless. The very existence of cash also benefits those who do not feel strongly enough the need to protect their privacy and pay generally cashless. For we are all still the real owners of the value that money represents. However, once cash is abolished and we move to virtual currency, we would all be reduced to mere users whose rights to the value in money could be restricted at any time. The physical existence of cash and the possibility of keeping it in a home safe, for example, prevents money from being artificially devalued beyond inflation by negative interest rates, thereby stimulating household consumption.
However, mere acceptance by the state is not enough. Most non-cash transactions and actual cash deposits and withdrawals are made through private banking houses. Therefore, the state should ensure that a citizen does not have to sacrifice all his financial privacy to banks just because he has the residual alternative of paying in cash to a limited extent, or his social privacy to social networks if he wants to use them, just because he has the alternative of going out and discussing. For the state cannot resign its duty to be a guarantor of equality just because many do not take their rights – so it cannot say, „others pay with their privacy – so everyone must.“
CONCLUDING REMARKS
Being a sovereign is not a given for a nation-state, but its hard-won status. Globalization is an objective process, but it does not have to take the form of multiculturalism, which, moreover, has proved to be a dead end. Historically, each state has played a role in global affairs, just as individual organs play their unique role in the human body. And this may continue to be true. In this concept, nation states are a fixed part of the world. Changing the global political order opens an imaginary „window of change“ and it will be up to each state to seize or miss this opportunity.
The natural aspiration of a sovereign state is to give itself back the power to make sovereign decisions within its territory in the interests of its people. And to guarantee its citizens not only their rights, but also to be their bulwark against (often transnational) private entities and foreign state entities.
Indeed, fundamental constitutional norms, including fundamental rights and freedoms, capture the very essence of a free society based on respect for individual freedom and dignity. Those who have respect for individual liberty and confidence in the individual’s ability to decide his or her own affairs can successfully work towards changes that will provide our state with the desired full statehood. Just as the individual must respect his rights and demand freedoms from the state, so must the state demand and respect its rights in the international arena.
Denisa Sudolská
This article was published exclusively for the Society for St. Wenceslas Studies: https://www.ssszs.cz/denisa-sudolska/.
[1] The county system was intended to unify the system of state administration and territorial division of the state in the historical Czech lands and in the former Upper Hungary (Slovakia and Podkarpatska Rus). However, the law became effective only in Slovakia and only briefly. In 1927, the provincial system was restored, with Moravia being united with Silesia.
[2] Ferdinand Peroutka, Budování státu III, Lidové noviny 1991, s. 999.
[3] Pl. ÚS 50/04, Ruling of the Constitutional Court of 08.03.2006: „The delegation of part of the powers of national authorities may continue if these powers are exercised by the EC authorities in a manner compatible with the preservation of the foundations of the state sovereignty of the Czech Republic and in a manner which does not threaten the very essence of the substantive rule of law. The Constitutional Court is called upon to protect constitutionality (Article 83 of the Constitution). Under Article 9(2) of the Constitution, the essential elements of a democratic state governed by the rule of law lie beyond the disposal of the constitution itself.“
Advokátní kancelář AK Sudolská poskytuje právní služby klientům působícím v nejširším spektru oborů podnikání. Vždy na nejvyšší profesionální úrovni a to ve všech oblastech práva se zvláštním zaměřením na oblast práva obchodního.
JUDr. Denisa Sudolská
Italská 1219/2, 120 00 Praha 2
Mobil: (+420) 777 122 208
Tel.: (+420) 273 130 806
E-mail: office@aksudolska.cz
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Handcrafted with love by STUDIO SYNAPSE, 2015