The Constitution of the Czechoslovak Republic/The definitive Constitution of the Czechoslovak Republic
THE DEFINITIVE CONSTITUTION OF THE CZECHOSLOVAK REPUBLIC.
(By Dr. JIŘÍ HOETZEL)
The National Assembly of the Czechoslovak Republic—a body which was the product of the Revolution—determined, by an enactment dated 29th February 1920, on the definitive Constitution of the land. Conditions resulting from the War prevented this Constitution being elaborated with the parliamentary co-operation of non-Czech citizens of the Republic (i. e. Germans and Magyars), particularly as the frontiers of our state had not at all points as yet been finally determined upon. The National Assembly, with due regard to this fact, endeavoured to elaborate a Constitution which should be both just and impartial, so that our state might in all honour defend it against criticism however severe—a criticism taking just account of all attendant circumstances.
The Charter of the Constitution expressly declares the Czechoslovak Republic to be a democratic republic. It is a unified, not a federative state. Only the territory of Russinia (Podkarpatská Rus) enjoys a special position in regard of public rights, defined in par. 3. of the Charter. By these provisions, the Treaty of St. Germain-en-Laye (articles 10—13) made on September 10th 1919 between the Allied and Associated Powers of the one part and the Czechoslovak Republic of the other part, has been carried into effect within the state itself. The Czechoslovak Republic, it is true, was under no obligation according to article 1 of the said treaty, to declare the articles 10—13 as fundamental (constitutional) articles. By doing so in par. 3 of the Charter the Republic clearly shows that she desires fully to guarantee the autonomic existence of the territory of Russinia. Our Republic has done more than its international duty, not only formally but also de facto, in admitting the members of the National Assembly (deputies and senators) elected in Russinia, to full rights of discussion, of voting and participation in all acts of the National Assembly, although article 13 of the Treaty of St. Germain lays down:„Toutefois ces deputés ne jouiront pas du droit de vote dans la Diète Tchécoslovaque en toutes matières législatives du même ordre que celle attribuées à la Diète ruthène."
The organisation of the territory of Russinia is being carried out and is facilitated by section 8 of par. 3 of the Constitutional Charter. The unity of our State recognized inter alia in article 10 of the Treaty of St. Germain, is emphasized in par. 4, according to which, citizenship of the Republic is one and uniform.
At the head of the Charter of the Constitution stands the principle that: "The people is the sole fountain of state authority in the Czechoslovak Republic."
The Charter does not treat this principle as a mere formula but endeavours to give constitutional life to it, limiting its application only in cases where the integrity and security of the state catagorically demand restrictive stipulations.
Legislative power is unified—the autonomic diet of Russia of course forms an exception. Our little state could not permit the different provincial diets, previously existing, to continue their functions. Par. 7, therefore, of the Charter declares the legislative, and executive powers of the diets of Bohemia, Moravia and Silesia at an end. The legislative body (National Assembly) is composed of two chambers: the House of Deputies and the Senate. Both chambers are elected by direct ballot on the basis of democratic rules of suffrage which recognize the absolute equality of both sexes (par. 8—17 of the Charter). The elections take place on the principles of proportional representation carefully worked out to the minutest details. A second and a third scrutiny secure as perfect a representation as is possible to the weaker political parties. The Rules of Franchise both for the House of Deputies as for the Senate draw no distinctions in regard of race or religion: they are equally just to all. It has been the earnest endeavour of our state of apply, in all its consequences, the principle expressed in Sect. 1 of Article 7 of the Treaty of St. Germain (§ 128. Sec. 1 of the Constitutional Charter). Our State has also conscientiously applied this principle in drawing up the Rules of Franchise.
It is important to note, too, that our Rules of Franchise are totally devoid of all that electoral trickery so characteristic of the Austrian franchise. A proportionately large number of seats has been, it is true, given to the constituency of Prague, but this is explained by the fact on the one hand this electoral district contains the capital of the Republic with its enormous possibilities of development and that on the other hand, the district was purposely neglected by the Austro-German governments. It is absolutely certain that the large influx of population continually going on will result in a large increase in the number of inhabitants. The Rules of Franchise, calculated to cover a long period of time, had to be adapted to these facts and circumstances. As to the technical aspect of electoral procedure great care has been taken to secure that every elector may record his vote without suffering from any outside constraint whatsoever. Here too all persons are treated exactly alike no regard being paid to difference of race or religion.
Great care has been bestowed upon the organisation of the body legislative. Tough political fights ended in compromise and the Chamber of Deputies emerged as the political factor par excellence. It is this chamber alone that by a vote of non-confidence can compel the resignation of the Government (par. 75 and 78 of the Charter of the Constitution). The Senate on the other hand exercises rather the functions of amendment and moderation. The limit of age prescribed for eligibility to the Senate (45 years) is a guarantee that this Chamber will be composed of members of experience and judgment. As an offset to this somewhat high passive age-limit, the active franchise is enjoyed by all citizens who have attained the age of 26 years (and not 30 as was proposed in many quarters). The reciprocal relations of the two Chambers in respect of lawmaking—as determined by the Charter of the Constitution after prostracted struggles and discussions—do not follow the lines of those of any other country. In principle the two chambers are in so far equal that they both enjoy the right of initiative, and that even Government bills may be first introduced in either house. Only in the case of Budget and Army Bills must the measures first pass through the House of Deputies. On the whole it may confidently be said that more discipline and conservatism have been introduced into the legislative labours of the new National Assembly and certainly more settled economical and political conditions in Europe generally will contribute also thereto.
It is naturally of the greatest importance to our state that all parliamentary work should take an undisturbed and effective course. Much care has therefore been devoted to the elaboration of Rules of Procedure. It is particularly worthy of notice that these Rules concede to racial minorities within the state the maximum of rights compatible with the practical working of the parliamentary machine. A comparison with the conditions existing in the former parliaments of Vienna and Budapest will shew how infinitely better is the lot of the racial minorities in our Republic than was the lot of the Czechs and Slovaks under the old regime at Vienna and Budapest. At the same time, it was necessary that the Rules of Procedure should keep in check, if not render absolutely impossible, all malicious attempts to frustrate the practical labours of Parliament.
The democratic spirit of our Constitution is likewise shewn in par. 54 of the Charter of the Constitution. This paragraph provides for the setting up of a permanent Committee—two-thirds of the members of which are taken from the House of Deputies and one-third from the Senate—which shall take the place of the National Assembly when the latter is unable to sit. Governmental and executive authority is thus, in principle, devoid of such power as was possessed, for example, by the Government of the former Austrian Empire in virtue of the notorious Article XIV of the law relating to the representation of the Empire. The Charter of the Constitution does not permit the Government of our state to remain for one moment without the control, nor yet without the aid of the legislative body.
The President of the Republic, it is true, has been conceded certain prerogatives in respect of the National Assembly: it is he who convokes, prorogues, terminates. and dissolves parliament; but strict limits have been set, in the interests of parliament, to these prerogatives (par. 28—31 of the Charter of the Constitution). The President is bound to convoke parliament at least twice a year to regular sessions; besides which he may summon it to extraordinary sessions if need be. On the request of a qualified majority of either chamber, both chambers assemble, if necessary automatically, at the summons of their respective presidents, without regard to the wishes of the President of the Republic. The Charter of the Constitution protects in this matter even parliamentary minorities, for they too have the right to demand the convocation of parliament and it the President of the Republic take no steps to this end the parliament meets automatically within a certain period on the summons of its presidents. This provision (par. 28 of the Charter of the Constitution) proves how our State protects a minority in a sphere so sensitive as is that of parliament. A minority has the right to compel the summoning of parliament!
The President of the Republic is entitled to return, with his observation thereon, any law passed by the National Assembly (§ 47 of the Charter of the). In spite of the veto of the President the Assembly may promulgate the law in its original form with the assent of an absolute majority of both houses (or otherwise under the special conditions set out in § 48 of the Charter of the Constitution).
It is appropriate here to point out that the Charter of the Constitution is placed in its entirety under the special and effective protection of a Constitutional Court. It is intended that the Charter of the Constitution be the foundation stone of the whole life of the state, the fountain of the rights of all citizens. An ordinary law may not conflict with the Constitution without becoming null and void. The judgment of the Constitutional Court declaring a law invalid causes it or its defective part to lose its binding force for the future. This institution likewise serves as a protection of the rights of minorities whether racial or religious.
In this connection may be also noted the provision of § 55. of the Charter, stipulating that Government decrees (bye-laws) may be issued only on the basis of a law and within its terms. The power to issue orders “praeter legem“, as exercised, for instance, in France does not exist here. It is the duty of the Courts to see that this principle is duly observed (§ 102. of the Charter of the Constitution) and they have power to declare as null and void every decree or bye-law which does not conform to the law.
GOVERNMENTAL AND EXECUTIVE POWER.
This power in its highest aspects is shared between the President of the Republic and the Government. The election of the President is indirect, that is, he is chosen by the two chambers of Parliament assembled in united session. The President enjoys such governmental and executive power as is expressly assigned to him by the Charter of the Constitution or by other laws of the Republic; all other Governmental and executive power rests in the hands of the Government. The functions of the President as set out in § 64. of the Charter of the Constitution are very comprehensive and effective and enable the President to exercise a great influence on the direction of the affairs of the State, without at the same time hardening him with details. As the President of the Republic is not responsible at law for his political acts (except as set forth in § 67 of the Charter), governmental and executive power has been in principle placed in the hands of the responsible factors, that is, the Government. The Constitution expressly introduces the principle of collective responsibility of the Government (§ 75 and 78 of the Charter). A characteristic feature of our Constitution is the effort to secure that all the more important matters of government he settled in a Council of ministers, a cabinet meeting (§§ 80 and 81 of the Charter of the Constitution), the idea being to render it impossible for an individual minister to abuse his position. This effort, as evidenced by the Charter of the Constitution, to ensure a collective and corporate discussion and action in the affairs of government goes so far as to deny to ministers the right of appointing civil servants of the VII and VIII classes. These provisions, too, of the Constitutional Charter are a protection to minorities and aim at assuring anand responsible conduct of the affairs of government.
Democratisation among us is not confined to legislative authority; one of our great tasks is the democratisation of the public administration, and to this work the foundations have been laid by § 86 of the Charter where it is laid down that the civic element shall as far as possible be represented in the subordinate offices of State. The law creating special administrative bodies for the counties (župy) and the districts (okresy) represents an effort to put this constitutional principle into practice. It is a bold step towards reorganizing public administration in a more democratic direction. The civic element thus participates in all political administration (interior) in the subordinate offices (ministries are an exception). This participation is particularly conspicuous in the organisation of the administrative Courts (contentieux a priori et a posteriori), where is it a matter of the protection of the rights and interests of citizens. The Czechoslovak Republic has in this way introduced for us a new kind of autonomy, giving even racial and religions minorities the opportunity of collaborating in the management of their own affairs, or indeed of settling the same themselves. Such collaboration or power of settlement will have a great importance for the solution of the problem of minorities generally (§ 133 of the Charter of the Constitution). We have often been asked whether we have not gone too far in our efforts at democratiation. It was necessary, however, to proceed energetically towards the reorganization of the administration as it was bequeathed to us by Austria. Much will depend on the maturity of our people which is now favourably influenced by the fact that all citizens may at last participate in the public administration.
The good quality of administration does not depend only on the good quality of juridical rules: in reality everything depends on the moral and intellectual qualities of those who are charged with the administration. Every state has to take measures which in this respect have a preventive or repressive effect. The most effective measure here is the duty imposed on a state official or on the State itself to make good any damage caused to a citizen through the illegal exercise of public power. In this regard our Republic has had in mind the examples especially of France and England, and has determined this question by special enactments, hoping thus to assure a just application of juridical rules for the benefit of all citizens generally and of minorities in particular. §§ 92 and 93 of the Constitutional Charter form the basis of these measures to which effect will be given as soon as conditions become normal again.
A special section (Part V) of the Charter of the Constitution is devoted to the so-called fundamental rights and liberties of citizens. The enumeration of them is much more comprehensive than is usual in Constitutional Charters and emphasis has been given to certain matters the importance of which was manifest in former Austria. Privileges derived from sex, birth or calling are not recognized; private ownership is inviolable, § 109 of the Charter declaring that private ownership may limited or abolished only by law, that is, not by any mere executive measure. All these rights guaranteed by the Constitution are protected, by the Supreme Administrative Court, a court which, in the technical sense, sees to the legality of the public administration when claims or complaints are advanced from any quarter. Our State is thus fitted out with all the attributes and means of a State, based upon Right. That it is possible in certain cases to limit by an ordinary law the rights and liberties guaranteed by the Constitution or even, in circumstances of some extraordinary nature, to suspend these rights partially or completely, is nothing new. We meet with the same thing in other democratic republics.
Part VI of the Constitutional Charter deals with the protection of racial and religious minorities (section 2 of § 106 and § 122 of the Charter treat also of this matter). Our Constitution has adopted the stipulations of the Treaty of St. Germain relative hereto and has gone further than our international engagements require, in declaring §§ 131 and 132 of the Charter, as fundamental (constitutional) articles, though the Treaty of Saint Germain in no way requires this. Here again our State desired to give a proof of its good will to settle the rights of minorities with perfect equity. This was also the case with regard to the provisions in the Constitution as to the use of languages where our scrupulous desire to fulfil our international engagements went so far as to cause us to adopt the very terminology of the conclusion of art IV of the Treaty of St. Germain, the Czechoslovak language being designated as the state, official language (langue d'Etat, langue officielle).
It is clear to everyobserver that the provisions of the Constitution relating to language are permeated both in letter and in spirit with the idea of perfect justice. The view that the Treaty of St. Germain prohibits the limitation of the language rights of minorities to a certain percentage of those minorities or to a certain area, is not supported by the Treaty of St. Germain itself (art. 7, sect IV). The Charter of the Constitution declares solemnly in its 134th paragraph that every species of forcible denationalisation is strictly forbidden.
To sum up, it may be said that the definitiveof the Czechoslovak Republic aims at being the democratic and just basis of public life in our State. It is a matter then, especially for our minorities, racial and religious, loyally to acknowledge these good traits and aims of our Constitution and to act accordingly.