The Czech Constitutional Court, the Unconstitutionality of the Electoral Legislation, and the Possible Constitutional Deadlock
Abstract
The judicial review of electoral legislation is one of the trickiest tasks of constitutional adjudication-because the Court needs to consider the next election when passing its judgement. Two questions are of utmost importance.
First, how close to the election is it still possible to repeal the electoral regulation currently in place, or part thereof, without influencing the upcoming election process or its outcome? And second, how to ensure that the continuity and stability of the constitutional system and its institutions is not hindered by the repeal of the electoral legislation? The present article focuses on the three most prevalent ways of dealing with the above-mentioned problems. The first way is represented by the U.S Supreme Court, the second by the German Federal Constitutional Court, and the third by the Italian Constitutional Court.
The above-mentioned problems are examined through the example of the recent judgement of the Constitutional Court of the Czech Republic, which repealed substantial parts of the Parliamentary Elections Act just eight months before the next election. Moreover, the judgement has made it impossible to hold the election, and therefore creates the risk that the lower chamber of the Parliament of the Czech Republic will forever cease to exist in October, leaving the country in a permanent constitutional deadlock, with the current government in power for life.
The article argues that this "Czech way" is a dangerous gamble with the continuity and stability of the constitutional system, and exerts an unacceptable pressure of the judiciary on the Parliament to pass new electoral legislation under a threat of constitutional deadlock.