Dělba moci v ústavě Československé republiky (1920) a v Ústavě České republiky (komparace)

Doc. JUDr. Aleš Gerlach, CSc., compares in his article “The Division of Power in the Constitution of the Czechoslovak Republik (1920) and in the Constitution of the Czech Republic (comparison)” the constitutional system of the Czech Republic with that of the Czechoslovak Republic, as it was created by a Constitutional Charter in 1920, in relation to trends of European constitutional development in the second half of the 20th century. The constitution of the Czech Republic principally took over the framework of the constitutional system encoded within the Constitution of the ČSR in 1920. Its main features are parliamentarism, triad of powers including an inner division within the powers and a proportionate electoral system (in elections to the decisive house of Parliament – the House of Deputies). At the same time it brought about some, not unimportant, shifts and modifications of positions and mutual relations of constitutional bodies. The most important are effective constitutional justice, the envisaged importance of local self-government and restoration of the Senate on principles of majority electoral system, in which one third of the senators is re-elected in a two year period and their powers are at the same time limited. It is also inevitable for the parliamentary form of government to set up a system of constitutional limits. Their purpose is to protect the position of Parliament, so that it does not become too weak with respect to the executive, which could be (and experience from history proves that it indeed was) misused for a change of parliamentary democracy into a system of authoritarian power. That is the reason why the elative weakening of the role of Parliament (not only as a result of constitutional changes formally strengthening the power of executive, but also by means of factual influence of ruling political parties as political powers dominating the law-giving bodies) is balanced in the Western European constitutions adopted after the World War II by a range of provisions whose aim is to prevent unilateral domination by executive power. An integral part of the system of parliamentary democracy is the institution of constitutional justice (constitutional check) whose work is not limited to checking constitutionality in an abstract sense and consequently it does not merely hamper parliament. Finally it is necessary to mention the increasing significance of local self-governments or system of regional autonomy based on the principle of decentralisation of power. ln this sphere the Constitution of the Czech Republic needs completion of legal rules so that they reflect the above mentioned European standards. When compared to its constitutional model, the constitution in force has not much advanced in providing for growing influence of non-governmental social institutions working in a democratic political system, such as political parties, media and pressure groups (lobbying associations). At present a general regulation sets the boundaries and thus also limits of the role of these institutions in the political system. A natural regulating framework of their activity is also a set of universal fundamental legal principles and a constitutional guarantee of rights of individuals and minorities. The constitution, however, cannot regulate their influence and operation in detail and there will always be some space, uncovered by legal rules, left for their real effect. The constitutional system should be constructed in a way which limits the unwanted aspects of the influence and mainly to work against tendencies to covertly monopolize political, economic and ideological power.