The Constitution
of Czechia
A Contextual Analysis
David Kosař
and
Ladislav Vyhnánek
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1 See Eric Stein, Czecho/Slovakia: Ethnic Conﬂict, Constitutional Fissure, Negotiated
Breakup (Ann Arbor, MI: Michigan University Press, 1997).
2 The importance of the years ending with ‘eight’ is generally accepted in Czech popular
literature, see eg František Emmert, Osudové osmičky v našich dějinách (Prague: Computer
Press, 2008). Other authors have warned against over-emphasising and over-symbolising
the years ending with ‘eight’ (see eg František Šulc, ‘Osudové české osmičky’, Lidovky.cz,
29 December 2007).
3 See the Munich Agreement (30 September 1938) – the settlement reached by Germany,
Great Britain, France and Italy that permitted German annexation of the Sudetenland in
western Czechoslovakia.
Introduction
Central Europe – Czechoslovakia – Czechia – European Union – Historical
Narratives – Constitutional Identity – Sociological Constitutionalism –
Constitutional Sentiments – Populism – Democratic Careening
M
ODERN CZECHIA IS still a young state, as it came into being
only after the dissolution of Czechoslovakia in 1993. However,
most Czechs have considered Czechoslovakia to be their
own state1 and viewed Czechia as a continuation of the Czechoslovak
statehood and its natural successor. In order to understand Czech constitutionalism
it is thus important to engage with key constitutional
moments of Czechoslovak statehood.
Czechoslovakia gained independence from Austria-Hungary in the
wake of World War I in 1918. Therefore, in 2018 Czechia celebrated a
century since Czechoslovakia came into being. In fact, the number ‘eight’
has a special place in Czech history.2 In 1938 the Western powers (France,
Britain and Italy) met Hitler in Munich and eventually consented to the
annexation of Czechoslovakia’s Sudetenland (mostly border regions
in Bohemia) by Hitler’s Germany.3 A few days later, German troops
marched into the Sudetenland, which became ofﬁcially a part of the
Third Reich. This marked an end of democratic statehood in the Czech
lands for almost 50 years, as in February 1948 the Communist Party
successfully completed a coup d’état. In 1968, when the Czechs wanted to
liberalise their communist regime, the Soviet Union and its allies invaded
Czechoslovakia and put an abrupt end to the Prague Spring. All of these
events left a deep imprint on Czech constitutionalism.
2 Introduction
The three national and constitutional catastrophes (1938, 1948 and
1968), each in its own way, eroded trust of the Czech people in constitutionalism
and its practical capability to counter the rise of or relapse
into totalitarian regime. These events also remind us that the Czech
constitutionalism has its dark side that includes collaboration of key
constitutional actors with the Nazi and communist regimes, long periods
of lawlessness under both the Nazi and the Communist rule, and also
some highly controversial policies of pro-Western post-World War  II
elites such as the decrees of President Edvard Beneš that led to deportation
of roughly 2.4 million ethnic Germans from the Czechoslovak
territory in 1945–1946.
What is perhaps even more important is the popular interpretation
of these historical events that informs Czech constitutional identity. The
prevailing Czech narrative about the Czech history is that Czechs were
usually victims of forces beyond their control, and everything wrong
came from the outside. In this narrative, just the identity of the ‘bad
guys’ changed – the Habsburgs, the Nazis and then the Soviets. The reality
was always signiﬁcantly more complicated. The Bohemian nobility
itself elected a zealous catholic, Ferdinand II, to the Bohemian throne,
three years before losing to him at the Battle of White Mountain. During
the First Czechoslovak Republic, Czechs failed to reﬂect Slovak calls for
greater autonomy and then, during the Protectorate, helped Nazis to get
rid of Jews and Roma people. An even less well-known fact is that the
Communist Party won the parliamentary elections in Czechia in 1946,
which paved the way to the 1948 communist coup d’état. Hence, Czechs,
unlike Slovaks and actually unlike any other Central European country,
voted the Communists to power in relatively free elections.
Such issues, including mainly the core question of victim mentality
and the complicated relationship with international and supranational
entities, thus were arguably key determinants of the Czech statehood
and its reﬂection by the Czech elites and the general population. As we
argue throughout this book, we think that this continues to be the case.
The growing Euroscepticism in Czechia, the inherent tension between
competing accounts of Czech constitutional identity, and the very understanding
of Czech national interest seem to be informed by these past
events.
That said, the most important constitutional events for understanding
the current Czech constitutional system took place in 1989, when
the Velvet Revolution marked an end of the four-decade-long communist
rule in Czechoslovakia, and in 1993, when Czechoslovakia split into
two independent states. The Czech post-Velvet constitutional project
Introduction 3
4 Petr Kopecký and Cas Mudde, ‘Explaining different paths of democratization: The
Czech and Slovak republics’, Journal of Communist Studies and Transition Politics 16,
no 3 (2000), 63–84.
5 See Tomáš Linek, Zrazení snu? (Prague: SLON, 2010) and Erik Tabery, Vládneme,
nerušit: opoziční smlouva a její dědictví (Prague: Paseka, 2006).
was from the very beginning designed as a liberal democratic one, with
ﬁrm roots in the Western constitutional tradition. After these formative
years, everything looked rosy for some time. With the exception of a few
bumpier years, the Czech economy ﬂourished in the 1990s and especially
in the 2000s – before the worldwide economic crisis. Czechia was represented
abroad primarily by President Václav Havel, a former dissident
and playwright who became internationally visible and well-known for
his support of human rights, liberal values and global responsibility. In
1999, Czechia joined NATO. Four years later, Czechs decided in its so
far only constitutional referendum to accede to the European Union.
Czechia ofﬁcially became an EU Member State in 2004. It seemed that a
bright future lay ahead.
This optimistic view was not just an internal one. At this point
Czechia was generally viewed as a role model for successful transformation
into a democracy and a counterpoint to the sceptics who viewed an
export of western democracy and liberal democratic values to the east as
a naive endeavour.4 However, this seemingly smooth and direct transition
to liberal democracy has turned into a winding road.
Since the 2010s, signs of crises of conﬁdence in the post-1989 development
and traditional political parties have started showing more visibly
and Havel’s humanistic tradition, liberal values and support for supranational
engagement have been increasingly challenged. To be sure, the
ﬁrst disillusionment with the traditional political parties had taken place
in 1998, when the two dominant political parties and natural ideological
opponents, Social Democrats and the centrist Civic Democratic Party,
signed the so-called Opposition Agreement, according to which they
divided the state power in exchange for tacit support of the governing
Social Democrats by the Civic Democratic Party.5 Yet the political system
witnessed real turmoil only in the wake of the corruption scandals and
the ﬁnancial crisis of 2007–08, which reopened existing wounds as they
affected the Czech people unevenly. As a result, the Czech people are
deeply divided. The four major crises of recent years – (1) the ﬁnancial
and later economic crisis of 2007–2008, (2) a series of corruption scandals
in Czech governmental circles, (3) the European migrant crisis, and
(4) the Covid-19 pandemic – have exacerbated this division.
4 Introduction
6 World Inequality Database, ‘Czech Republic’, https://wid.world/country/czech-republic/.
7 Robert Muller, ‘Debt-trapped Czechs excluded as economy grows’, Reuters,
13 December 2018, https://www.reuters.com/article/us-czech-debt-idUSKBN1OC1NM.
8 Hubert Smekal and Katarína Šipulová, ‘DH v Czech Republic Six Years Later: On
the Power of an International Human Rights Court to Push Through Systemic Change’,
Netherlands Quarterly of Human Rights 32, no 3 (2014), 288–321.
The main dividing line follows the different visions of the three Czech
Presidents: Václav Havel on the one hand and the duo of Václav Klaus
and Miloš Zeman on the other. With some degree of simpliﬁcation, there
is the Havelian ‘truth and love’ bloc with emphasis on universal moral
values, liberal democratic values, human rights, and a thick concept
of the rule of law and the civic society. In contrast, the Klaus-Zeman
bloc stresses a more ‘realistic’, nation-state-based understanding of the
Czech political-constitutional project and shares a more cynical stance
as regards those ‘Havelian’ universal values and idealism. More recently,
Prime Minister and billionaire Andrej Babiš, who left his business and
entered politics in 2011, has joined the Klaus-Zeman camp.
Supporters of current President Miloš Zeman (2013–now) in particular
are often disillusioned by the current form of Czech democracy
and the growing inequality gap in highly egalitarian society.6 They
call for a change to the current system and prefer short-term ﬁxes
rather than addressing complex problems’. However, their views are
not laughable nor without any support. At the end of 2017, 863,000
Czechs – nearly 10 per cent of the adult population – faced at least one
seizure order, meaning their income above a legal minimum could be
redirected to cover debts and fees.7 Half of them faced four or more
orders. These ‘debt traps’ are the result of poor ﬁnancial awareness,
years of loose regulation of lenders, costly repossessions, and tough
laws on bankruptcy, and help fuel support for extremist politicians
in poorer areas. This is further exacerbated by the opaque education
system, unreformed since the Austrian era, worrying divergence in the
quality of public schools and discrimination towards Roma children in
schooling.8 Many Czechs, who have been traditionally liberal towards
the LGBTQ movement and were the ﬁrst Central European country to
adopt a same-sex union law in 2006, have even recently started to question
the rights of transsexuals.
Zeman and Babiš have understood this situation well. They have
responded to changing attitudes and have already announced that they
intend to reform the Czech constitutional system if they are given that
opportunity. Both of them have expressed their desire to abolish the
Introduction 5
9 See eg Jan Jandourek, ‘Babiš chce řídit stat jako ﬁrmu. To asi nepůjde, stát není ﬁrma’,
Reﬂex on-line, 6 September 2013, www.reﬂex.cz/clanek/info-x/51716/babis-chce-ridit-sta
t-jako-ﬁrmu-to-asi-nepujde-stat-neni-ﬁrma.html.
10 See Ondřej Kundra and Andrea Procházková, ‘Mynář se pokusil ovlivnit vysoce
postavené soudce’, Respekt, 6 January 2019, https://www.respekt.cz/politika/mynar-se-
pokusil-ovlivnit-vysoce-postavene-soudce.
11 See eg Paul Blokker, New Democracies in Crisis? A Comparative Constitutional
Study of the Czech Republic, Hungary, Poland, Romania and Slovakia (Abingdon:
Routledge, 2013).
upper chamber of the Parliament, the Senate, because it unnecessarily
complicates the legislative process. Babiš has also pledged to reduce the
number of MPs in the lower chamber and abolish municipal assemblies.
He stresses that he prefers to ‘run the state like a ﬁrm’,9 implying that any
checks and balances as well as complex procedural rules are no more than
a nuisance. None of these threats have materialised. However, there are
visible signs of democratic decay in actions of individual ofﬁce holders
who work with or were elected with the support of Zeman and Babiš. For
instance, one recently elected Ombudsman openly adopts an extremely
narrow concept of discrimination. Even more dangerously, several judges
of the Constitutional Court and the Supreme Administrative Court
have alleged that President Miloš Zeman’s Chancellor had attempted
to persuade the judges of these two courts to decide high-proﬁle political
cases in line with Zeman’s preferences.10 Such events were simply
unheard of in the 1990s and 2000s.
Some authors have claimed11 that these tensions are not surprising
and that the aforementioned crises of conﬁdence are in fact a logical
consequence of the chosen constitutional design: an over-reliance on the
legal aspects of constitutionalism and the ignoring of the constitutional
sentiments of the people and the corresponding necessity to nurture the
social roots of constitutionalism. According to this narrative, the transition
was only successful on the surface and it did not come in hand in
hand with a transition as regards the population’s constitutional values,
which in turn has to lead to tensions and perhaps even constitutional
crises. These obstacles can hardly be overcome without institutional
reform or at least without a focused constitutional-political campaign
aimed at strengthening the position of liberal democratic constitutional
values in Czech society and increasing the post-1989 regime’s legitimacy.
In sum, while the Czech constitutional system still seems to be in a
relatively good shape, we can see the ﬁrst cracks in it, and thus its future
is hard to predict. Even though the Czech constitutional landscape has
not been subject to change and challenge of the same magnitude as some
6 Introduction
12 See eg Valerie Bunce and Sharon Wolchik, ‘The 1998 Elections in Slovakia and the 2000
Elections in Croatia: The Model Solidiﬁes and Is Transferred’, in Valerie Bunce and Sharon
Wolchik (eds), Defeating Authoritarian Leaders in Post-Communist Countries, (New York:
Cambridge University Press, 2011).
13 See eg Renáta Uitz, ‘Can You Tell When an Illiberal Democracy Is in the Making? An
Appeal to Comparative Constitutional Scholarship from Hungary’, International Journal
of Comparative Law 13, no 1 (2015), 279–300.
14 See Wojciech Sadurski, Poland’s Constitutional Breakdown (Oxford: Oxford University
Press, 2019).
15 See Elisabeth Bakke and Nick Sitter, ‘The EU’s Enfants Terribles: Democratic
Backsliding in Central Europe since 2010’, Perspectives on Politics (2020).
of its Visegrad counterparts’ (Slovakia12 in the 1990s and Hungary13 and
Poland14 in the 2010s and early 2020s), there are clear signs of its fragility
and susceptibility to democratic backsliding. We argue in this book
that the reasons for the fragility lie not in the formal structure of the
constitutional system itself, but rather in the social underpinning of the
key constitutional values and deep disagreement within the Czech people
over these values.
This makes Czechia a particularly interesting case as it is arguably an
outlier among the backsliding Visegrad countries.15 The Czech constitutional
institutions seem fairly robust and no clear turn along the Polish
or Hungarian lines seems imminent, but we do not know for how long.
We may thus ask what explains the differences between the Visegrad
countries when just 16 years ago, on joining the European Union, they
were seen as a uniﬁed bloc of attentive pupils of democratic transition?
Are the Czech constitutional values rooted deeply enough to withstand a
real earthquake? Will Czechia follow the path that Hungary and Poland
now seem to be taking? Or do the ‘Hungarian’ and ‘Polish’ paradigms
ﬁt Czechia only loosely, as the major challenge lies elsewhere? Are the
recent events in Czechia just a necessary ‘childhood illness’ of the constitutional
system blown out of proportion by observers and does Czechia’s
outlier status as a democratic outpost in Central Europe still hold? What
institutions have been most effective in countering democratic decay?
This book attempts to answer some of these questions. It provides a
condensed contextual look at Czech constitutionalism and its underlying
social development. We show that the Czech constitutional system
has been built on liberal democratic values and on the legacy of the
First Czechoslovak Republic (1918–1938), which has been portrayed
as a success by Czechs. The key institutions and the standard constitutional
design have followed well-tested constitutional patterns and
early experiences with the functioning of the new constitutional system
Introduction 7
16 See Chapter 9.
lent themselves to optimistic interpretations. At the same time, we stress
some dangerous undertones beneath Czech constitutional development
that are often neglected by constitutional law scholars. In sum, we argue
that Czechia is not in the state of ‘democratic careening’, as the democratic
game has changed in decisive ways since the 1990s even though
democracy neither collapsed nor became more ﬁrmly consolidated in the
process.16 More speciﬁcally, the Czech constitutional system is fragile,
but it can be made be made to ﬁt the ‘Hungarian’ or ‘Polish’ paradigm
only very loosely as the major challenge has not been creeping capture of
existing institutions, but rather the entrenchment of private interests in
the state and in party politics.
Here we must add two caveats. First, it is clear that throughout the
book we deﬁne constitutionalism broadly and not merely as the set of
written norms that form the Czech constitutional order, formal institutions
and the Constitutional Court’s case law. Instead, we study the
Czech constitutionalism as a lived experience. By doing so we adopt a
sociological understanding of constitutionalism that incorporates also
narratives, informal institutions and political context. When relevant, we
also address comparative and supranational inﬂuences on Czech constitutionalism,
including the crucial role of EU law. This view is not shared
by many scholars in Czechia, who tend to focus almost exclusively on
Czech law, but it is the only way to understand Czech constitutionalism
in a European and global context.
Second, throughout the book we use the term ‘Czechia’, a new name
approved in 2016 by the Czech Cabinet as the ofﬁcial short name of the
Czech Republic. We use the name Czechia to describe the Czech Republic
(1993–today) and the Czech part of Czechoslovakia (1918–1992) in order
to avoid confusion, as the term ‘Czech Republic’ has meant different
things in Czech modern history. In 1918–1968 the ‘Czech Republic’ did
not ofﬁcially exist and the more common term in that era was ‘Czech
lands’ (České země). After the federalisation of Czechoslovakia, the
term ‘Czech Republic’ referred to the Czech subunit in the federation
(1969–1992) and only after the division of Czechoslovakia did it become
the ofﬁcial title of the independent Czech state. To make things even more
complicated, during the Middle Ages, the Czech lands were referred to
as Bohemia, even though the Kingdom of Bohemia often covered a much
greater territory.
8 Introduction
FURTHER READING
Bakke, Elisabeth and Nick Sitter. ‘The EU’s Enfants Terribles: Democratic
Backsliding in Central Europe since 2010’, Perspectives on Politics (2020).
Biagi, Francesco. European Constitutional Courts and Transitions to Democracy.
Cambridge: Cambridge University Press, 2020.
Blokker, Paul. New Democracies in Crisis? A Comparative Constitutional Study
of the Czech Republic, Hungary, Poland, Romania and Slovakia. Abingdon:
Routledge, 2013.
Pehe, Jiří. ‘Explaining Eastern Europe: Czech Democracy Under Pressure’.
Journal of Democracy 39, no 3 (2018): 65–77.
Rupnik, Jacquw. ‘Is East-Central Europe Backsliding? From Democracy Fatigue
to Populist Backlash’. Journal of Democracy 18, no 4 (2007): 18–25.
Hanley, Sean and Milada Vachudová. ‘Understanding the illiberal turn:
democratic backsliding in the Czech Republic’, East European Politics 34,
no 3 (2018): 276–96.