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Constitutional Charter of the Czechoslovak Republic Act, intoduced by the Act of 29 February 1920 no. 121/1920 Coll.

The constitutional development of the Czecho-Slovak Republic – as one of the successor states to the Austrian-Hungarian monarchy – is characterized by the efforts to establish the democratic bases of the new statehood, and thereby occupy a firm position in the post World War I Europe as fast as possible. The proclamation of independence of 28 October 1918 (the existing legislation continued to apply) was followed by the adoption of the so called Provisional Constitution (Act no. 37/1918 Coll. of 14 November 1918). The Provisional Constitution laid down provisional structure of the organization of state power in the newly established state (the National Assembly as the legislative body, the President of the Republic as the head of the state and the Government as the executive body). The revolutionary body (the National Committee) was extended and turned into the so called Revolutionary National Assembly. This body's composition was derived from the 1911 parliamentary election results (the last election which took place before the First World War) and consisted only of the Czechs and the Slovaks. Other nationalities living on the territory of the new state did not become its members and did not participate on the preparatory works om the final constitution (and did not even want to). This constitution is, therefore, an outcome of the agreement concluded by the main political parties representing the Czechs and the Slovaks (the Constitution, however, mentioned the Czechoslovak nation). The remaining nationalities, especially the Germans and the Hungarians, considered the Constitution to be imposed on them and they would permanently complain about it after entering the parliament after the 1920 elections (see Peroutka, p. 1139 ff.).

The Constitution was enacted on 29 February 1920 as an Act which introduced it under the heading “constitutional charter”. The draft was prepared by the Ministry of the Interior (Professor J. Hoetzel) and then preliminarily discussed with the political parties by the Minister of the Interior Švehla. The final draft was the result of intensive work by the National Assembly's constitutional committee between 8 January and 27 February 1920. The text of the Act no. 121/1920 Coll. begins with the introductory act consisting of 10 articles, out of which the following parts have been historically important: provisions concerning the hierarchy of legal norms, the higher legal force of constitutional acts and especially the establishment of the Constitutional Court which was supposed to rule on the constitutional conformity of ordinary legislation. It was the first constitution which laid down the so called abstract review of constitutional conformity of legislation as the Austrian constitution establishing a similar constitutional court was enacted on 1 October 1920. All the pre-existing constitutional acts were abolished (art. IX).

The introductory act was followed by the “constitutional charter” which became the core of the Czechoslovak constitutional system in the period between 1920 and 1938. It consisted of the preamble, six sections and 134 articles. It shall be added that there were several other constitutional acts adopted and declared to form a part of the constitutional charter (e.g. Act no. 122/1920 Coll. on the principles of the language law, Constitutional Act no. 293/1920 Coll. on the protection of personal liberty, inviolability of home and correspondence). Beside these there were other constitutional acts enacted (e.g. on citizenship, on signing acts and decrees). Therefore, the Czechoslovak constitution was polylegal, such as the prior Austrian-Hungarian one. It was linked to the idea that all the elements of the three-element definition of the state (state territory, state citizenship and state power) should be specified by the constitution or by the constitutional act. Alongside being polylegal, the constitution was also rigid. The three fifths majority of all the members of both chambers of the National Assembly was required in order to amend the constitution; such a change required the act to be explicitly titled as constitutional (art. I paragraph 2 of the introductory act).

Section 1 of the constitutional charter regulated the general constitutional basis concerning the nature and organization of the state power and its relation with the citizens. Czechoslovakia was defined as a democratic republic headed by an elected president. The organization of the state was based on the principle of separation of powers; the people were the sole source of all state power (§ 1 and § 2). The constitutional charter emphasized the unity and indivisibility of the state territory, the frontiers of which might have only been altered by a constitutional act (§ 3). The autonomous territory of Carpathian Russinia should have received the widest measure of self-government compatible with the unity of the Czecho-Slovak Republic. The unitary nature of the state was similarly emphasized by the requirement of single and uniform citizenship (§ 4). The conditions governing the acquisition and termination of citizenship were regulated by other constitutional acts (no. 236/1920 Coll. and no. 152/1926 coll.) as well as by the post-war peace treaties. The constitutional charter anticipated the possibility of referendum, however, only in the exceptional cases when the parliament would have rejected a bill presented by the Government (§ 46).

Section two of the constitutional charter (§ 6 to § 54) followed the parliamentary nature of the state and established the National Assembly as the legislative body. The National Assembly consisted of the Chamber of Deputies (300 members elected for a six year term, right to vote since 21 years of age, right to stand as a candidate since 30 years of age) and the Senate (150 members elected for an eight year term, right to vote since 26 years of age, right to stand as a candidate since 45 years of age). Women had the right to vote since 1919. The electoral system was based on the proportional representation with only minimal disproportionate effects since there were three rounds of scrutinium taking into account the representation of national minorities' political parties. Judicial review of elections was established along the lines of the English system. However, the case-law of the Electoral court unfortunately strengthened the position of political parties and made the representative mandate a fiction. Deputies and senators were given wide immunity – if the respective chamber did not grant consent with criminal or disciplinary prosecution of its member, such prosecution shall became permanently (not only for the period in office) null and void. Both chambers might have been dissolved by the president; the Chamber of Deputies had a stronger position than the Senate. The Government was politically responsible only to the Chamber of Deputies. Beside that, the constitutional charter (§ 79) introduced the legal responsibility of the members of the Government and of the President of the Republic in the form of impeachment modelled after the United States. Neither of the chambers would sit permanently, they were summoned twice a year by the president. During the period when the chambers of the parliament were not in session, the Permanent Committee composed of 16 deputies and 8 senators would fulfil part of the parliament's functions as another democratic element of the constitution. The Permanent Committee was entitled to take urgent measures which would under ordinary circumstances require enactment of legislation, and supervised the governmental and executive power.

A specific feature of the constitutional charter was a reference to the quadrialist theory of separation of powers as the section three was titled “governmental and executive powers” and specified the status of the president, of the Government and the ministries and lower public administrative bodies. The parliamentary nature of the republic was expressed, first, by the presidential election (president was elected at a joint meeting of both chambers of the National Assembly) and, second, by the dualism of governmental and executive powers reserving all the governmental and executive powers to the government unless it was explicitly ascribed to the president. The president appointed and dismissed the prime minister and members of the Government; he was entitled to ask them for advice and reports and to preside over the meetings of the government.

Section four (§ 94 to § 105) contained the usual safeguards of judicial independence and laid down the organization of the judiciary. Legality of decrees (secondary legislation) was subject to judicial review by ordinary judges. The power of constitutional review of legislation was reserved to the Constitutional Court composed of seven members appointed for 10 years. Judicial review of administrative acts was guaranteed via concentrated administrative judiciary. Section five (§ 106 to § 127) encompassed the traditional list of rights, liberties and duties of the citizens. Unlike in the ordinary 19^th century constitutions, this section applied to everyone residing in the Czecho-Slovak Republic unless a provision explicitly referred exclusively to the state citizens (§ 106). The constitutional charter guaranteed equality of sex and religion which was also uncommon at the time. Beside the traditional freedoms (personal freedom, freedom of speech, press, assembly and association, correspondence and conscience, and inviolability of home) the special protection of freedom of property shall be mentioned - § 109 allowed expropriation even without any compensation if such an option was provided by the law. Finally, the sixth section (§ 128 to 134) regulated protection of national, religious and racial minorities. The Czecho-Slovak Republic was obliged to adopt such regulation with regard to the St. Germain-et-Laye Treaty (no. 508/1921 Coll.) which also concerned the possibility of opting for foreign citizenship. Although the constitutional regulation went beyond the international legal obligations of Czechoslovakia, the question of national minorities in the end led to severe problems which culminated with the Munich Agreement of 29 September 1938, establishment of the Protectorate of Bohemia and Moravia and then after the Second World War.

The idea that the constitutional charter would apply for centuries would prevail during the preparatory works. In fact, it only applied until 1938 when it was fundamentally changed by the Constitutional Act no. 299/1938 Coll. on the autonomy of Slovak country, Constitutional Act no. 328/1938 Coll. on the autonomy of Carpathian Russinia and Constitutional Act no. 330/1938 Coll. on the authorization to amend the constitutional charter and constitutional acts of the Republic of Czecho-Slovakia (also the title and nature of the state changed). Still, the constitutional charter became the fundamental starting point for the constitutional development on the territory of Czechoslovakia, and later on after 1993 on the territory of the Czech Republic. The constitutional charter served as a standard for evaluating the constitutional concepts such as the rule of law, parliamentary democracy, separation of powers, constitutional review, proportional electoral system, judicial review of elections, legal regulation of political parties, public administration and judicial review of administrative acts, fundamental rights, freedoms and duties, rights of national minorities, fundamentals of the militant democracy etc. The constitutional charter was inspired by the constitutions of the United States, Germany, Switzerland, Belgium and it itself became an inspiration for certain other states. In spite of rather short period of its legal validity it continues to serve as a standard and bases of the constitutional development, both in the positive and negative meaning. In the time of the Czechoslovakia's dissolution in 1992 there were even voices calling for re-adoption of the constitutional charter until the adoption of the new final constitution of the Czech Republic. Although a complete constitution was enacted in the end, it followed the 1920 constitutional charter in many aspects.

The constitutional charter (and Czechoslovak constitutional law in general) was influential also internationally. The influence was caused by its democratic nature, guarantees of constitutional and legal protection, and protection of national minorities. Another reason was its moderate style lacking unnecessary manifesto declarations and employing brief and accurate legal language. The ceremonial language was only used in the preamble which was inspired by the United States Constitution's preamble. The importance of the constitutional charter increased with the growing authoritarian and undemocratic tendencies in the neighboring countries (Germany, Austria, Poland, Yugoslavia). The international acquaintance of the constitutional charter was enhanced by the German minority's constitutionalists (Sander, Adler, Schranil, Rauchberg, Hartmann, Prager Juristische Zeitschrift journal) whose often critical texts formed a part of the expert legal and comparative reflection of our constitutionalism, which shall not be ignored.     

References:

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