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The 1948 Constitution

Some of the political and legal steps undertaken during the Second World War were crucial for the Czechoslovak post-war constitutional development. Despite the reservations of the British diplomacy, Edvard Beneš - the president of the Czechoslovak exile establishment – travelled to Moscow at the end of 1943 and signed a bilateral treaty on friendship, mutual assistance and post-war cooperation between the Czechoslovakian Republic and the Soviet Union (the treaty was published as no. 11/1946 Coll.). It was the first treaty of this kind concluded by the Soviet Union and its future satellite state. In Moscow Beneš negotiated with Soviets and with the Czech communists about the nationalization of the larger Czechoslovak industry, about mutual military cooperation between the two countries and also about the displacement of the Germans. The Soviet orientation of the Czech non-communist political representation is regularly explained in the context of the so called Munich complex, i.e. the betrayal of the western allies related to signing the Munich Agreement.[1] Another act, which confirmed the position of the Soviet Union as a dominant power for the future Czechoslovakia, was the adoption of the Košice government programme on 5 April 1945.[2] According to this document the Soviet Red Army should become a model for the new Czechoslovak army, the Czechoslovak foreign policy should be oriented mainly at the Soviet Union. Moreover, the creation of the National Committees partly inspired by the soviets, redistribution of lands, and imposition of administration on the large undertakings were concluded. The Košice government programme emphasized the importance of social rights to the detriment of political rights and liberties.

Soon after the Second World War it became clear that the 1920 Constitution did not reflect the actual existing situation, the mentioned foreign policy development nor the international constellation (the regulation of issues related to national minorities turned out to be obsolete after the displacement of Germans, the Zakarpattia region became a part of the Soviet Union, and thus there was no need to regulate its autonomy within the Czechoslovak constitution, etc.). The new constitution or at least constitutional amendment was supposed to reflect the recent political development (e.g. the Košice government programme) and new legal issues (the question of constitutional conformity of Beneš decrees, continuity and discontinuity of legal acts adopted in the period of Nazi occupation). After the 1946 election an important question was whether the works on the new constitution would turn into the communists' instrument of social change. In October 1946 the Act no. 197/1946 Coll., on the constitutional committee of the constituent National Assembly, established the committee composed proportionally of the representatives of parliamentary political parties. In the same time, however, there was also a council of legal experts consisting of the elite lawyers from the First Republic era such as Weyr, Hobza, Hoetzel, Kubeš, Neubauer or Peška. The conceptual disputes concerned the issue of integration of exile president's legal acts and dealing with the undemocratic period. The substantial issues concerned the constitutional solution of relations between the Czechs and the Slovaks, conception of territorial government and self-government (national committees), nationalization and the guarantees of private property, conception of civil rights and the structure of highest public bodies. Most often, the text satisfying the communist deputies was enacted. The draft of the constitution was subject to major changes after the February coup in 1948. The conceptual differences are the most visible when comparing the (later enacted) communists' draft of the constitution (their most important expert was Vladimír Procházka) on the one hand, and the National Social Party's draft (usually linked with Vladimír Kubeš) on the other hand.[3]

The explanatory report to the Constitution puts emphasis on the core principles of the new constitution, i.e. the principle of unitary people's power and refusal of the separation of powers doctrine; changing the judiciary, local governance and economy in order to serve to the people's interest by introducing unitary economic plan, land-use change and nationalization of property; changing the relations between the Czech and Slovak brotherly nations. The new Constitution is the people's democratic constitution different from the western states' constitutions. The constitution contains the guarantees of fundamental rights and liberties stating that these rights can only be developed when the social rights are secured (there is no equality of capitalists and workers; personal freedom and inviolability of home of an unemployed worker who cannot find a job and whose family is dying of malnutrition does not mean much). Social rights would be an empty phrase if the economic system remained capitalist. A new social role of the law emerged – it moved from rather conservative element towards a tool of social changes, the legal opinion of the people became crucial for the legal interpretation.

The Constitution newly defined the Czechoslovak State as a People's democratic Republic. The Constitution changed the system of highest public bodies – it eliminated separation of powers and the constitutional court, because no public body could have been supreme over the National Assembly. The Parliament had only one chamber, unlike the first-republic one. The Czechoslovakia abandoned the first-republic model of parliamentary republic and opted for the assembly form of government. Parliament was constitutionally defined as the supreme organ of legislative power; the preamble stressed that the people not only make the laws through their representatives, but also carry them into effect through their representatives. The Presidium of the National Assembly strengthened notably – it played the role of the Permanent Committee as known from the 1920 Constitution and of the constitutional court as it was charged with the abstract review of constitutional conformity of legislation (this competence, however, was not used). In the periods when the National Assembly was not in session (the constitution established two regular sessions per year), most of its powers were exercised by The Presidium of the National Assembly including the power to take urgent measures, including such measures as would otherwise require an Act. Unanimous adoption of laws was typical for the subsequent functioning of the National Assembly. However, there was a decrease in the number of laws as the number of governmental and ministerial decrees increased as well as the number of measures adopted by The Presidium of the National Assembly.[4] The real power shifted from the parliament to the executive, more precisely to the Communist Party's leaders. The constitution regulated the immunity of deputies, the deputies' in public or private employment right to leave-of-absence throughout the duration of the mandate, the President's duty to summon the National Assembly for two ordinary sessions in each year, and the fundamentals of legislative procedure.

The constitutional status of the Slovakian organs was atypical as the Constitution laid down neither the federation nor autonomy. The Constitution emphasizes unity and indivisibility of the state territory and defines the Czechoslovak Republic as a unitary State of two Slavic nations possessing equal rights, the Czechs and the Slovaks. The Constitution was supposed to fulfil the promises of equal status of both nations. The reality, however, showed the fears of the Slovaks' political preferences, which were less in favour of the communists than in the Czech part of the state. Therefore, the Constitution established an asymmetrical system in which the organs for the entire state existed (such as the National Assembly and the Government) as well as the organs for the Slovakian part of the state (the Slovak National Council, the Board of Commissioners), which would posses rather limited competences. Yet, there was no equivalent of the Slovak National Organs in the Czech part of the state. The Constitutional Act no. 33/1956 Coll. on the Slovak National Organs, which came into effect on 1 August 1954, changed the structure of the Slovak Organs and amended the whole chapter five of the Constitution. Henceforth, the National Committees possessed the state power in municipalities, districts and regions. The Constitution defined the National Committees as the organs of the Uniform People's Administration which would lean on the direct participation and initiative of the People and were subject to control by the People.

The Constitution stressed judicial independence, however, laid down that the judge was bound (unlike in the 1920 Constitution) by the whole legal order of the People's democracy, i.e. not only by the laws but also by the secondary legislation. The Constitution contains provisions concerning judicial independence, right to a lawful judge, public and oral hearings and the rights of the defence. This part of the Constitution was in fact amended by the Constitutional Act no. 64/1952 Coll. on Courts and the Prosecution Service which stated that the judges were elected (according to the related act the national committees elected the judges for three years long mandates; completed legal studies were not a condition of taking up the function of the judge). In the same time, the amendment charged the General Attorney, responsible to the Government, with the supervision of law enforcement by all the state organs.  

Art. III of the Constitution recognized work for the benefit of the community and participation in the defence of the State as the duty of all. The Constitution granted everyone their freedom of person and expression, and the right to education, the right to work, to a just reward for work done, to leisure after work, to a pension in cases of incapacity for work, and declared to take care that every citizen received the same possibilities and the same opportunities. The bill of rights formed part I of the Constitution titled as “rights and duties of the citizens”. However, this part was emptied shortly after its adoption due to the sub-constitutional legal regulation as described below, although part I of the constitution was never amended during the period of this existence. Especially in this part the Constitution was merely fictional and had no impact on the factual functioning of the state power. Social rights newly became a part of the bill of rights. Beside the standard duties of loyalty towards the state and military conscription, the Constitution laid down also the duty of a citizen to be sensible of the interests of the state in all his actions, the duty to work and to assist in the maintenance and furtherance of the national property and to guard against its being diminished or damaged. The Constitution empowered the state to impose “personal duties” on any citizen.  Under the Constitution, the statements and acts that constituted a threat to the independence, integrity and unity of the State, the Constitution, the Republican form of government and the People’s Democratic Order, were punishable according to law. Furthermore, it was explicitly forbidden to spread, in any manner and in any form whatever, nazism and fascism, racial and religious intolerance, or chauvinism.

According to the Constitution the state was headed by the President of the Republic who was elected by the National Assembly for seven years. The Government, which was accountable to the National Assembly and appointed and dismissed by the president, was the supreme authority within the executive. The provisions of the Constitution regulating the status of the President of the Republic followed the model of the 1920 constitutional charter and were not amended during the whole period of the Constitution's application. The real importance of the president's position in 1950s was related to the coupling of the presidential function with the function of the Czechoslovak Communist Party's leader. Klement Gottwald who held the position of the president between 1948 and 1953 was concurrently the chairman of the Communist Party. His successor Antonín Zápotocký also was a member of the Presidium of the Central Committee. The third president Antonín Novotný served as the highest official of the Communist Party (the First Secretary of the Central Committee) during the whole term of his presidential office.

According to the Constitution, the Government consisted of the Prime Minister, the Deputy Ministers and the other members of the Government (Ministers and State Secretaries). As already noted above, the prevalence of measures adopted by the Presidium of the National Assembly, of the Government orders and ministerial regulations was typical for the 1950s lawmaking. According to the Constitutional Act no. 47/1950 Coll. the Government was entitled to create and abolish the ministries and to specify their scope of action. There was a high number of ministries in the 1950s Czechoslovakia. In 1956 the Government was composed of nearly 40 members; and 22 economically-oriented ministries existed. However, the number of the members of the Ministerial Council in the Soviet Union was even higher – 110 members.  

Art. XII of the Constitution stipulates that the entire national economy of the Czechoslovak Republic shall serve the People and that the state directs all economic activity by a Uniform Economic Plan. Together with the preamble, which states that “we wish to attain to a social order in which exploitation of man by man shall be completely abolished – to socialism”, art. XII of the Constitution served as the basis for extensive nationalization of private property without compensation. That was facilitated by the regulation of freedom of property in § 9 paragraph 2 of the Constitution according to which expropriation shall be possible only on the basis of payment of compensation except in such cases as it is or shall be prescribed by law that no compensation be given.

The Constitution contains a special part (Part VIII) dealing with the economic system. This part reflects political discussions whether and how the nationalization decrees shall be acknowledged by the Constitution. The wording of the Constitution still mentions the plurality of the ownership of the means and instruments of production, however, the form of national property or the property of the People’s Cooperatives already precedes to the private ownership. It also lays down that the nationalized economic assets are the national property, which is regularly the tenure of the state (the communal ownership, which is also mentioned in the Constitution, was emptied by the Act no. 279/1949 Coll. which made the National Committees mere administrators of the national property). The Constitution also governs the role of the national enterprises, the need to bridge the social and cultural gap between town and country, the prohibition of cartels, trusts and syndicates, and the role of the Uniform Economic Plan. The Uniform Economic Plan was adopted as a law and it was everyone's duty to adapt their economic activities to the Uniform Economic Plan.

Unanimous vote – an important feature of the totalitarian state – was present in the Constitution's adopting process as it was enacted unanimously by all the 246 present members of the National Assembly.[5]

Soon after the adoption of the Constitution the legal order underwent a shift towards human rights violations and introduction of political control upon state and self-governing bodies. The most important novelties, however, took place only on the basis of factual exercise of power lacking any legal basis (the Peoples’ Militia Forces, censorship etc.). The factual constitution of the 1950s was rather created by this practice and newly adopted acts and constitutional acts than by the text of the People's Democratic Constitution. The most crucial legislative amendments of the 1950s concerned the status of an individual and the structure and competences of the state organs and national committees. Acts introducing punishments for the opponents of the regime or members of undesirable groups (kulaks, believers, former members of the British Royal Air Force, non-communist intellectuals, or bourgeois) were enacted – e.g. Act no. 231/1948 Coll. on the defence of the People's Democratic Republic, Act no. 247/1948 Coll. on the forced labour camps, and acts abolishing free elections (Constitutional Act no. 26/1954 Coll. on the National Assembly and the Slovak National Council elections). As was previously mentioned, the judiciary's role of the guardian of justice and individual rights was totally destroyed (Act no. 319/1948 Coll. on the People's judiciary and Constitutional Act no. 26/1954 Coll. on the courts and prosecution). According to Ján Grónský, 234 000 people were sentenced during the political trials between 1948 and 1954 and more than 100 000 people were sent to the forced labour camps without a judgment of a court.[6] Freedom of speech, assembly and association also lost their content after the adoption of the Constitution. Freedom of speech was destructed in the spring of 1949 with the Act no. 94/1949 Coll. on publishing and disseminating books, music and other non-periodical publications[7] and Act no. 184/1950 Coll. on publishing journals and on the Union of Czech journalists. However, the practice of the Communist party and the Government was crucial within the control of the media. The control of publications and censorship was performed by the Office for the Press Supervision and, later on, the Main Administration of the Press Supervision. These two bodies initially operated without any legal authorization. The Communist Party and the ministries issued the list of forbidden literature. Act no. 68/1951 Coll. on voluntary organizations and assemblies adopted in June 1951 eliminated the freedom of assembly and association on the level of ordinary legislation. None of the traditional guilds had, however, existed by that time. The social organizations were not free associations of individuals; they served as instruments of the Communist party's policies.      

Act no. 52/1949 Coll. on the evidence of residence, movement and residence authorization for foreigners, implemented the total control upon movement, residence and social contacts among citizens. Act no. 53/1949 Coll. introduced the border closure and the necessity of obtaining the exit permit for any single journey abroad. Act no. 69/1951 Coll. and the Ministry of National Security's regulation no. 70/1951 Coll. on the right of Border Guards' members to use the gun, then legalized the armed actions against unauthorized border-crossings.  The crime of unauthorized leaving of the Republic and disobeying the order to return was introduced already by the Act no. 231/1949 Coll. Act no. 194/1949 Coll. on acquiring and losing the Czechoslovak state citizenship introduced the unilateral revocation of the state citizenship by the Minister of Interior as a consequence of subversive activities, leaving the republic or failing to return to the republic.

Constitutional Acts no. 81/1953 Coll. on the Government's control over the national committees and no. 12/1954 Coll. on the National Committees introduced the principle of democratic centralism (a national committee of a lower level is subordinated and accountable to a national committee of a higher level) and likened the local governance and self-governance to the soviets.

Literature:

Michal Bobek, Pavel Molek, Vojtěch Šimíček (eds.): Komunistické právo v Československu. Kapitoly z dějin bezpráví Masarykova univerzita, Mezinárodní politologický ústav, Brno 2009.

Jan Gronský: Komentované dokumenty k ústavním dějinám Československa, 2. díl, 1945–1960.  Karolinum: Praha, 2005.

Vladimír Kubeš: Dějiny myšlení o státu a právu ve 20. století se zřetelem k Moravě a zvláště Brnu, díl druhý, vydané Masarykovou univerzitou v Brně 1995.

František Weyr: Paměti – Za okupace a po ní (1939–1951). Atlantis: Brno, 2004.