Karel Schelle[1]
The outline of the constitutional
development of Czech Republic
The outset of the Czech statehood reaches all the way back to the ninth
century. Since then, the Czech state has gone through difficult development –
from feudal patrimonial state, through attempts of its integration into wider
state units (the Habsburg monarchy), to its today’s modern shape.
The origination of the modern constitutional system which is now in place
in the territory of the today’s Czech Republic is intertwined with the
revolutionary year 1848.
By looking at the past of the state units which existed in the territory
of the modern Czech Republic since 1848, we can distinguish three fundamental
phases of the constitutional development:
1.the period 1848 – 1918 – the Habsburg monarchy
2.the period 1919 – 1992 – the Czechoslovakian
statehood
3.since January 1, 1993 – the independent Czech
Republic
The revolutionary
events of 1848 led to the collapse of the absolutistic system of the Austrian
monarchy. Under the pressure of a wide petitionary movement, the very first
Austrian constitution – the so-called Pillersdorf’s April Constitution – was
sanctioned on April 25, 1848. On the grounds of this constitution, the Imperial
Congress was called together and its main purpose was to elaborate and pass new
constitution.
Even the
political representatives of the Czech nation - František Palacký
and František Ladislav Rieger – participated in the Congress. Especially
the Rieger’s proposal of wording of the third article of the new constitution,
which says: “All the state power shall derive from people and shall be carried
out in the manner stated in the constitution”, is very famous.
The Imperial
Congress, which was being held as of July 10, 1848 – firstly in Vienna and
later in Kroměříž, was dissolved on March 7, 1849 by
means of Emperor’s order. This order introduced two more documents – the
Constitution of the Austrian Empire, which was dated March 4, 1849, and the
Patent on Fundamental Rights of Citizens, none of which, however, entered into
force in its full wording and they were revoked in 1851.
The second
Austrian Constitution – the so-called Stadion’s March Constitution – was based
on the idea of uniform territory of the state and anchored the concept of
hereditary monarchy led by Emperor, who was not responsible to anybody for
carrying out his powers. Emperor was supposed to carry out legislative power
together with bicameral Imperial Congress, whose lower chamber was supposed to
be elected and the upper chamber established by land assemblies or elected out
of the richest noblemen. The executive branch was given only to Emperor, who
carried it out through his respective ministers. Next to these measures,
Emperor’s Council (Reichsrat) was established as an advisory body of Emperor,
who was in charge of appointing its members. The judiciary branch was granted
to courts, which were given independence by declaration stating that judges
could not be removed or recalled. The Constitution banned all kinds of serfdom
and, further, it stated the fundamental liberal rights and freedoms. It also
established village self-government and powers of lands and the Empire itself.
Further, the Imperial Court was established. Its purpose was to deal with
constitutional disputes. However, this Constitution had never been practiced
and got repealed. The constitutional system was replaced by an absolutistic
system led by Alexander Bach – the so-called Bach’s absolutism.
On February 26,
1861, the third Austrian constitution – the so-called Schmerling’s February
Constitution – was sanctioned. This Constitution established Parliament – the
so-called Imperial Board – which consisted of two chambers: the Chamber of Representatives, which was
supposed to be elected by Land Assemblies, and the Chamber of Nobles, which was
to be appointed by Emperor. The Constitution did not contain provisions on
civil rights and did not state anything about the principle of responsibility
of cabinet (ministers) to Parliament. Hence, the executive branch was still
kept by Emperor.
The parliamentary
activities aimed mainly at ensuring fundamental rights of citizens (the Press
Act; the Act on Personal Freedom; the Act on Home Freedom; and the Acts on
Freedom to Associate and Assemble.
On December 21,
1867, the December Constitution was passed. It was done by passing a collection
of laws which established the state and political changes in the Habsburg
monarchy, i.e. the origination of dualistic constitutional monarchy of
parliamentary type. The Constitution was an outcome of Austro-Hungarian
Compromise of 1867. The governmental power was divided into two state units –
Austria and Hungary, which were connected by Emperor, who was supposed to
become Austrian Emperor and Hungarian King. Moreover, these two state units
were to have common foreign policy and defense. The Constitution granted
general rights to all citizens living in Cisleithania, which were to ensure
their spiritual freedom, e.g. freedom of education and science; freedom of
conscience and religion; freedom to associate; personal freedom; freedom to
assemble; and freedom of speech; next, it ensure their economic freedom, e.g.
freedom to move; freedom to choose an occupation; and freedom of trade;
further, it ensured nationality freedoms, such as equal protection of languages
in schools and in governmental offices; right of members of a nation to be
educated in their mother tongue. Moreover, the Constitution also stated that
judges shall be independent and it renewed trials by jury.
After the
Constitution had been passed, the right to vote got widened due to the gradual
reforms that took place in 1873, 1882, 1896 and 1907. Finally, general, equal, direct and secret ballot to the Chamber
of Deputies was originated. All men of at least twenty-four years of age were
given right to vote and all men older than thirty could run for the office. Yet
women and members of armed forces were not allowed to vote.[2]
2.
The Constitutional
Development in the Period 1918 – 1992 – the Czechoslovakian Statehood
2.1 The Constitutional Development in Czechoslovakia in
1918 - 1948
The
World War One sharpened the disputes in the Habsburg monarchy. During that war,
the ideas and projects of the Czech statehood were taking their shape and these
ideas later resulted into a requirement of originating an independent
Czechoslovakian state.
The
Czechoslovakian National Council, which was established in February 1916, and
which was led by T. G. Masaryk, Dr. E. Beneš and Dr. M. R.
Štefánik, was the very first body that represented the idea of
independent Czechoslovakia together with the National Committee, which was
established in November and which was supposed to be a representative body of
the Czech political parties – Slovaks were not taking part in it. On July 13,
1918, the National Committee was reorganized and become a general multinational
body – the Czechoslovakian National Committee.
The
declaration of an independent Czechoslovakian state took place on October 28,
1918 at the meeting of the National Committee in Prague. The declaration of
independence of the Czechoslovakian state started as follows: “Czechoslovakian
People! Your old-aged dream has become reality. The Czechoslovakian state has
joined the independent, free and cultural states of the world today.”
The
Act NO 11/1918 Coll. on Founding the Independent Czechoslovakian State was
passed on the very same day as the first Czechoslovakian act. This Act –
sometimes called “reception norm” – meant a complex legal continuity of the
newly established state with the then present Habsburg monarchy. In other
words, the Austrian and Hungarian system of laws was adapted together with the
system of public administration. However, there was a discontinuity with the
central Habsburgian power.[3]
The
National Committee had been in charge of leading the state until November 13,
1918, when it accomplished its mission by passing the so-called Provisional
Constitution, which contemplated origination of the supreme bodies of
government: the Revolutionary National Assembly, President and Cabinet.
The
Revolutionary National Assembly was composed of 256 representatives and got
formed by widening the then present National Committee. The RNA was unicameral
and was granted legislative powers. It was able to pass resolutions if there
was at least one third of representatives present and if supported by majority
of them. Yet certain issues, such as vote on change of the Provisional
Constitution, election of President, etc., had to be supported by two thirds of
present representatives of at least two thirds of all the representatives.
President,
who was understood to be a head of the state, was elected by the RNA and his
powers were limited. They had to be approved (countersigned) by a responsible
member of cabinet. President was not responsible for his acts.
The
executive branch was represented by Cabinet (government in the strict sense)
and the members of cabinet were to be elected by the RNA. Thus, Cabinet was
responsible to the RNA. The activities of the unelected RNA culminated on
February 29, 1920 when the Czechoslovakian Constitution was passed.
The
Czechoslovakian Constitution was based on the ground of the so-called December
Constitution of 1867, the Constitution of the French Third Republic of 1875
(especially the concept of parliamentarism), the American Constitution of
September 1787 (the preamble) and there a number of provisions adapted from
peace treaties (protection of minorities and position of Carpathian Ruthenia.
The
Czechoslovakian Constitution consisted of its preamble, ten articles of the
introductory Act NO 121/1920 Coll. and the text of the Constitution itself.
The
Preamble proclaimed unity of the Czechoslovakian nation and it referred to
history of this nation and to modern principles, such as – self-determination,
education, peace-keeping, democracy and progressiveness.
The
introductory act was, among other purposes, important for an establishment of
the Constitutional Court.
The
Constitution was structured into six chapters having 134 sections: I. General
Provisions; II. The Legislative Branch; Structure and Powers of the National
Assembly; III. The Executive Branch; IV. The Judiciary Branch; V. Rights and
Freedoms and Citizens’ Duties; VI. Protection of Minorities – National,
Religious and Racial.
The
Legislative Branch was represented by the bicameral National Assembly, which
was composed of Chamber of Deputies (300 members; citizens over 21 have a right
to vote and citizens over 30 have a right to be elected; 22 election districts;
six years term) and Senate (150 members; citizens over 26 have a right to vote
and citizens over 45 have a right to be elected; 12 election districts; eight
year term). Both of the Chambers were elected in general and direct polls.
Only
the Chamber of Deputies was given the power to vote non-confidence in
government (Cabinet) and it even had a bigger importance in the process of
lawmaking. Senate was construed as a reviewing institution of professionals,
which was not given direct political influence.
Even
though that the Czechoslovakia Constitution stated that representatives and
senators are not bound by orders of the political parties they belong to, they
were often ordered on which resolutions to vote for. This practice was being
carried out by means of so-called “electoral bond”.
President
was the head of state and was elected at joint session of both of the chambers
of the National Assembly for a period of seven years. Under the Czechoslovakian
Constitution, no one was allowed to be elected President for more than two
consecutive electoral terms. However, these provisions did not apply to first
President of Czechoslovakia. Presidential Candidate had to be at least 35 years
of age and President was not responsible to anybody for his acts. Even the
National Assembly was not granted power to recall President out of his office.
Any act of President regarding the power granted to executive branch had to be
countersigned by a member of cabinet who would be responsible for such act.
President
represented state in foreign relations, was accepting and entrusting diplomats,
was declaring war state and was in charge of negotiating peace. Moreover,
President was given a right to veto the passed bills. Nevertheless, the last
word belonged to National Assembly anyway (so-called suspensive veto). Next,
President was entitled to call together and end sessions of chambers, dissolve
National Assembly. Under the Constitution, President had to inform National
Assembly about conditions of the republic. Further, he was in charge of
appointing and letting go Chairman of cabinet and its other ministers,
university professors, judges and some top state officials. He was granting
honorary gifts and pensions and was chief commander of armed forces and had the
power to grant pardons. These duties and entitlement could be performed by
members of cabinet if President was not able to hold his office.
Cabinet
(government in strict sense), which consisted of its Chairman and other
members, was, however, was a body that had the greatest deal of powers of the
executive branch and governmental power was exercised especially by means of
decisions of Cabinet. Under the Constitution, Cabinet was responsible to
Chamber of Deputies, which was entitled to vote non-confidence in Cabinet. This
principle shall be understood as one of the decisive characteristics of
parliamentary system. Resignation of Cabinet was to be sent to President.
The
Czechoslovakian Constitution also contained basic provisions regarding
Ministries and lower administrative offices.
The
Czechoslovakia system of courts was organized as follows:
-
the Constitutional Court, whose
purpose was to check whether laws comply with the Constitution
-
the Electoral Court, which was a
general court for issues regarding elections
-
the Supreme Administrative Court,
which was in charge of checking on legality of decisions made by administrative
bodies; it also dealt with all kinds of competence conflicts
-
the system of civil and criminal
courts contained district courts, county courts, upper courts (main courts in
Slovakia) and the Supreme Court, which was seated in Brno
-
extraordinary civil courts, which
were especially labor courts and arbitration courts
-
the State Court, which was a court
whose purpose was to deal with some of the most terrible crimes
-
military courts, which were
organized in an own system.
The
Constitution proclaimed that judges were independent and were bound only by
law. Further, judges were appointed for an unlimited period of time.
The
Czechoslovakian Constitution also contained a chapter on rights, freedoms and
duties of citizens. It was a collection of fundamental rights and freedoms,
containing especially the principle of equality, personal freedom, freedom to
own a property, home freedom, freedom of press, right to assemble and
associate, petition right, freedom of education and conscience, freedom of
speech, protection of matrimony and family and duty to attend compulsory
service. However, social rights were not included in the collection. These
rights and freedoms were later detailed by laws.
The
protection of national, religious and racial minorities, which was anchored in
the sixth chapter, was in principle an implementation of duties that had been
imposed upon Czechoslovakia by international treaties.
The
Czechoslovakian Constitution of 1920 was a balanced and integral document which
fulfilled the role of a basic law. Thus the Czechoslovakian Constitution was
understood as one of the most progressive documents of that time.
Notwithstanding that the Constitution was usually considered positively on the
account of the principle of democracy which was included in it, the
Constitution contained elements that later became fatal for Czechoslovakia.
The
official approach to national issues in Czechoslovakia was already stated in
the Preamble – the fiction of Czechoslovak nation. The relation between Czech
and Slovakian nations, which was one of the main national problems within the
history of Czechoslovakia, was not dealt with nor even recognized as a problem
in the Constitution.
Autonomy
of the Carpathian Ruthenia, which was one of the four lands of Czechoslovakia,
and which was stated in the Constitution, was never actually carried out.[4]
It
was a fact that in the Twenties and Thirties, there were more Germans than
Slovaks in Czechoslovakia. Further, there were many Hungarians living there
too. The unsolved national relations culminated at the end of the Thirties and
led to a complete collapse of concepts of national issues. In the end, these
problems became the pretenses that were used by Germany.
By
signing the Munich agreement, a number of international pacts, agreements and
unwritten principles of international law were broken. Its constrained
acceptance even violated the Czechoslovakian Constitution, which did not allow
changing state borders without an approval by National Assembly, which had
never been called together to discuss this issue.
The
era of the Second Czechoslovakia applied to the state which took place after
the borderland territories had been detached from Czechoslovakia – in a total
number it was about 41,000 square kilometers. These territories were affixed to
Germany, Hungary and Poland. The remains of Czechoslovakia, which was under
harsh pressure, were roughly interfered and its standard functioning of its
constitutional system was paralyzed and later completely disallowed. The Second
Czechoslovakia existed just for a short period of time; it was just a temporary
state formation, which came to its end on March 14 and 15, 1939 when the Slovak
Republic and the Protectorate of Bohemia and Moravia were formed.
Due
to the Munich agreement and the formation of the Slovak Republic and the
occupation of the historical Czech lands, the Czechoslovakian Constitution got
revoked.[5]
In
the times of all kinds of personal, political and diplomatic disputes, the
exile temporary state order was formed by Dr. E. Beneš in the United
Kingdom in 1940. The temporary state order was represented by President, State
Council and Cabinet (government).
The
Czechoslovakian Constitution was restored by means of constitutional
restitution, i.e. on the grounds of the Presidential Decree NO 11/1944 on
Restoring Legal Order. This Decree was passed in London on August 3, 1944:
“The Constitutional
and other enactments of the Czechoslovakia, which were passed until March 29,
1938, have derived from a free will of Czechoslovakian people and are
considered to be the Czechoslovakian legal order. All the regulations that were
passed during the period when Czechoslovakian people were deprived of their
freedom (the time of oppression) do not make a part of the Czechoslovakian
legal order. The time of oppression started on September 30, 1938 and lasted
until the day which is to be determined by a governmental decree” (i.e. till May 4, 1945).
The
postwar state order of Czechoslovakia was in continuity with the middle-war
Czechoslovakia. However, it was not possible to link directly to the
constitutional system that had been in force prior to September 30, 1938 and it
was needed to find compromises with other subjects of power (or at least the
ones who had an influence on the constitutional order of the postwar
Czechoslovakia).
2.2 The Constitutional Development in 1948 - 1992
In February 1948, the Communist
Party took over power and started to control Czechoslovakia. These “February
events” were carried out by means of combination of constitutional and
unconstitutional methods and in May 1948, a new Constitution of Czechoslovakia
was passed, i.e. the Constitution of May 9, which was announced as the
Constitutional Act NO 150/1948 Coll.
The wording of the new Constitution,
which had been prepared already before February 1948, was partially inspired by
the Soviet Constitution of 1936. However, it partially derived from the
Czechoslovakian Constitution of 1920 – especially by the scheme of
constitutional bodies).
The Constitution of May 9 consisted
of the Preamble, 12 articles wherein the fundamental constitutional principles
which were to help while interpreting actual provision were included. Further,
it had 178 sections, which were divided into 10 chapters (1. The Fundamental
Rights and Duties of Citizens; 2. The National Assembly; 3. The President; 4.
The Government; 5. The Slovakian National Bodies; 6. The People’s Committees;
7. The Courts; 8. The Economic Issues; 9. The General Provisions; 10. The Final
and Temporary Provisions). According to its wording, the Constitution of May 9
was understood as democratic one.
In 1960, the Constitution of May 9
was replaced by a new so-called Socialist Constitution (the Constitutional Act
NO 100/1960 Coll.). This new Constitution was passed because of political and
ideological reasons. In comparison with the Constitution of May 9, the new
Constitution was of lower lever in both material and formal aspects.
The Constitution of the Socialist
Czechoslovakia was divided into nine chapters having 112 sections (I. The Order
of Society; II. The Rights and Duties of Citizens; III. The National Assembly;
IV. The President; V. The Government; VI. The Slovakian National Council; VII.
The People’s Committees; VII. The Courts and Prosecution; IX. The General and
Final Provisions).
The original wording of the
Socialist Constitution was in force for only eight years. In 1968, during the
era of political and legal changes, the Constitutional Act NO 143/1968 Coll. on
the Czechoslovak Federation, which replaced the original chapters III. – VI. of
the Socialist Constitution, was passed.
On the grounds of this law, the then
unitary state was transformed into “federative
state of two equal brotherly nations – Czechs and Slovaks” so that the
Socialist Czechoslovakia was later composed of the Czech Socialist Republic and
Slovak Socialist Republic, which were equal.
The Constitutional Act on the
Czechoslovakian Federation consisted of eight chapter having 151 sections (I.
The Basic Provisions; II. The Division of Powers between Federacy and
Republics; III. The Federal Assembly; IV. The President; V. The Government; VI.
The Constitutional Court; VII. The State Bodies of the CSR and the SSR; VIII.
The General, Temporary and Final Provisions.
Hence, during the time of applying
the socialist model of the Czechoslovakian federation, the Czechoslovakian
Constitution was not only one document, but rather a collection of
constitutional documents, standing next to the valid provisions of the
Constitution – this collection of constitutional law was understood as
constitution in broad sense.[6]
September 17, 1989 symbolizes the
collapse of the whole communist regime. The very first changes within the
Czechoslovakian socialist system of law took place shortly after November 17,
1989 in the scope of constitutional law. Next to personnel changes of leaders
of state, it was needed to carry out fundamental changes of the whole system of
law to make it correspondent with all needs of democratic state. November 17,
1989 is understood as a symbol of a collapse of communist regime in
Czechoslovakia and as the beginning of the process of changes striving to
achieve an embodiment of the principle of “rule of law”; protection of
fundamental human rights and freedoms of all citizens of Czechoslovakia;
restoration of political system based on free competition of political parties;
establishment of economic system based on rules and protection of proprietary
rights; freedom of enterprise and values of market economy; gradual limitation
of the role of state and creation of self-government (autonomous) municipal
corporations; and to get Czechoslovakia out of obligations set by the Council
for Mutual Economic Assistance and Warsaw Pact.[7]
The entire process of broad changes
of the old Constitution of the Czechoslovak Socialist Republic of 1960 (the
Constitutional Act NO 100/1960 Coll.) got started by an amendment that changed
two of its articles. This amendment revoked the leading function of the Communist
Party of Czechoslovakia as “the voluntary combat union of the most active and
conscious citizens belonging to workers, farmers and intelligence within
society, who advanced the working class.” Next, the provisions of the Article
Six stating that the Communist Party of Czechoslovakia had leading position in
the National Front were revoked too. Thus the National Front become just a
political union of nations, nationalities, social classes and interest groups,
in which political parties and social and special-interest organization were
free to associate. The next change to be mention was carried out on November
30, 1989. It repealed the provisions stating that the doctrine of
Marxism-Leninism should be exercised within the entire culture policy of Czechoslovakia,
and within the development of education.
The Constitutional Act NO 46/1990
Coll., which was enacted at the end of February 1990, changed the
characteristic of deputies’ status – their “mandate” was no longer “imperative”
but became so-called “representative”. Further, it re-worded the Article 2 of
the Constitution. The word “working” was deleted out of the sentence: “the
state power is carried out by working people by means of representative bodies
which are elected by people.” Even some of the provisions of the second
important constitutional act – the Constitutional Act on Czechoslovakian
Federation NO 143/1968 Coll. – were changed. Especially the number of elected
deputies was reduced from the original 200 to 150. One of the core objectives
of the first half of 1990 was to hold free elections, which could only be done
if certain legislative changes took place. The Constitutional Act NO 45/1990
Coll. shortened the electoral term of the House of People and the House of
Nations of the Federal Assembly, and of the Czech National Council and Slovak
National Council. The upcoming electoral terms of the House of People and the
House of Nations of the Federal Assembly occupied upon results of the election
of 1990 were supposed to be twenty-four months. At the beginning of 1990, the
new Act on Elections was passed. It laid down a foundation for new political
system. A passage of the Act NO 15/1990 Coll. on Political Parties, which made
it possible for parties to come into existence very easily, meant that plurality
on political scene was restored and the leading position of only one party was
finally ended after forty years.
Other vast changes of the socialist
Constitution of 1960 were made by the Constitutional Act NO 100/1990 Coll.,
which revoked the Pronouncement which was a part of the Constitution. The
Articles 7-15 were reworded, which affected especially the provisions on
economic system, understanding and conception of proprietary rights and
proprietary relationships and their protection.
The new layout of local
self-government was made by the Constitutional Act NO 294/1990 Coll., which
canceled people’s committees and made villages the core units of local
self-government. Villages have become independent associations of its residents
which are entitled to own and manage their property independently.
The National Front, whose purpose
was to associate the Czechoslovakian political parties and social organizations
that had been permitted, and which served as a tool of the totalitarian regime
led by the Communist Party of Czechoslovakia, was canceled by the
Constitutional Act NO 376/1990 Coll., which completed the process of restoring
political plurality. [8]
In the first half of 1990, a whole
bundle of laws that contributed to democratization of the system of law was
enacted. One should not forget to mention especially the Act NO 83/1990 Coll.
on Association of Citizens, the Act NO 84/1990 Coll. on Right to Assemble, and
the Act NO 85/1990 Coll. on Right to Petition.
Many significant changes in the
scheme of the central bodies of the Czechoslovakian federation were done in
1990 when some of the powers were shifted from federation level to particular
republics (the Constitutional Act NO 556/1990 Coll.)
Even though the Constitutional Act
NO 148/1968 Coll. presumed that Constitutional Court would be established, such
court had never been established during the times of socialist era. After
twenty of years of that lack, the court whose purpose is to protect
Constitution was formed in 1991 and its seat was situated in Brno.[9] This federal court consisted of twelve members and each of the
republics had six judges, serving seven years terms. Despite its short
existence, the federal Constitutional Court decided over thousand cases and
made great base for the Constitutional Court of the Czech Republic.[10] In order that a more complex constitutional mechanism in particular
republics was achieved, the Supreme Audit Office of the Czech Republic has been
established via the Constitutional Act NO 481/1991 Coll. It is a controlling
body, independent from government and its bodies and central authorities of
state administration.[11]
The eight chapter of the
Constitution, which had been dealing with courts and Prosecutor’s Offices was
changed in 1991. All the provisions coinciding with the socialist concept of
judiciary and enforcement of judicial acts were repealed. Moreover, courts were
renamed as the courts of the Czech and Slovak Federal Republic and the
provisions on local people’s courts were revoked.
A relationship between the Czech and
Slovak nation has not been definitely solved since 1918. The years of 1990 -
1992 might be described as years of increasing crisis of mutual relationship of
the two nations. These issues were shown for example on the dispute over the
new name of the republic, which has been called the “hyphen war”. Since it was
not allowed that deputies of one of the two countries could outvote the others
(so-called ban on “majorization”), it was needed to get support of both the
Czech and Slovak deputies for any constitutional change. In March 1990, the
Czechoslovak Socialist Republic was renamed to the Czechoslovakian Federal
Republic by means of the Constitutional Act NO 81/1990 Coll. However, the
Slovak form of the Collection of Laws adapted name the Czech-slovak Federal
Republic. This dispute over name of the republic was finally solved be the
Constitutional Act NO 101/1990 Coll., which made a compromise and brought the
name as follows – the Czech and Slovak Federal Republic. At the end of 1990,
the so-called “competence law” (the Constitutional Act NO 556/1990 Coll.) was
passed. This law limited the powers that used to be on the federal level and
strengthened the authorities of particular republics. Hence the federation lost
its control over the two republics. In 1991, intensive discussions on future
order of the Czechoslovakian state were being led. Due to the Constitutional
Act NO 327/1991, the only way for the republics to withdraw from the federation
was to held public referendum. Yet such referendum has never taken place, for
the end of the federation was construed as an abolishment of federation and not
as withdrawal of any of the republics. Thus the end of common state was
negotiated by politicians.[12] In November 1992, after long discussions, the Constitutional Act on
Dividing Property of the Czech and Slovak Federal Republic (NO 541/1992 Coll.)
was passed. This Act was based on territorial principle, which meant that
property belonged to that state whose territory it was in. Moreover, the other
principle that was used was one which considered number of residents of the
Czech Republic and the Slovak Republic and thus divided property at the rate of
two to one. On November 25, 1992, the Federal Assembly passed the
Constitutional Act on Dissolution of the Czech and Slovak Federal Republic,
whereby the federation got abolished as of December 31, 1992. The successors of
the federation have been the Czech Republic and the Slovak Republic.[13]
In 1991, the constitutional
conception of human rights and freedoms, which had been regulated by Chapter II
of the old socialist Constitution of 1960, and which was called Rights and
Duties of Citizens, was replaced by the newly enacted Charter on Fundamental
Rights and Freedoms (the Constitutional Act NO 23/1991 Coll.). This new
enactment became a part of the constitutional order of the federation. All the
laws in force had to be put in compliance with the Charter before December 31,
1991. As of this date, all the statutory provisions that did not comply with
the Charter on Fundamental Human Rights and Freedoms ceased all effects.
[1] Doc. JUDr. Karel Schelle, CSc., Faculty
of Law, Masaryk University, 611 80 Brno, Veveří 70, Czech Republic,
email: karel.schelle@schelle.cz,
phone: 603205759
[2] See: Kadlec,
K.: Z ústavního vývoje habsburského
mocnářství, Praha 1912; Schelle, K.: Význam roku 1848 pro vytvoření
moderního státního aparátu. Ostrava, KEY Publishing
2008
[3] Schelle, K.: Vznik Československé
republiky 1918. Ostrava, KEY Publishing 2008.
[4] See: Schelle, K.: Organizace
československého státu (1918 – 1938). Praha, Eurolex
Bohemia 2006.
[5] See: Maršálek, P.:
Protektorát Čechy a Morava, Praha 2002
[6] See:Vojáček, L.
– Schelle, K. -Knoll V.:
České právní dějiny. Plzeň, Aleš
Čeněk 2008
[7] Zelenka, P. Vybrané
kapitoly z ústavního práva. 4th Edition. Praha: Armex
Publishing, 2008, p. 29.
[8] Zimek, J. Ústavnost a
český ústavní vývoj. Brno: Masarykova Univerzita,
2003, p. 171.
[9] The
Constitutional Court of the Czechoslovakian Federation has been established by
means of the Constitutional Act NO 91/1991 Coll.
[11] Gerloch, A., Hřebejk, J., Zoubek,
V. Ústavní systém České republiky.
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