The limits of the power of judges

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The limits of the power of judges

Zdenиk Koudelka

Ales Vвna

Abstract

transcendental lawgiver judge

The text is devoted to an attempt of judges, especially of the constitutional courts, to seize the right to disturb the constitutional laws and to create through the theory of transcendental source of law their own standards, often with a kind of transcendental support. Article stands on the position that the only transcendental legislator is God and everything else is the work of human hands, therefore changeable by people.

Key words: Judges, Power of Law.

1. Crisis of the elected democratic representation in Bohemia, Moravia and Silesia

In the last decade there has been a parliamentary crisis of the elected democratic representation. The reason is partly the election system usually producing governments mostly based on wide unstable coalition. A government's average lifespan is less than two years Since 1992, when the four-year parliamentary term and the subsequent governmental term was established, there have been 15 governments -- the first government of Vaclav Klaus between 1992-96 the second government of Vaclav Klaus between 1996-98, the government of Josef Tosovsky in 1998, of Milos Zeman between 1998-2002, of Vladimir Spidla between 2002-04, of Stanislav Gross between 2004-05, of Jin Paroubek between 2005-06, the first government of Mirek Topolanek between 2006-07, the second government of Mirek Topoloanek between 2007-09, of Jan Fischer between 2009-10, of Petr Necas between 2010-13, of Jin Rusnok between 2013-14 of Bohuslav Sobotka between 2014-17, the first government of Andrej Babis between 2017-18, and the second government of Andrej Babis from 2018 until now. However only two governments governed the 4 years anticipated by the Constitution -- the first government of Vaclav Klaus and the government of Milos Zeman..

Petr Fiala sees the only solution in the change of the election system aiming at creating stable political government: «If we do not do it… we should not wonder and be offended by the political performance (of both the government and the parliament), since it is simply not possible to do it much better in the existing system.» [I]. In 2013, President Vaclav Klaus said: «Not the power abuse, but weak governance has become the main problem of the Czech politics in the last more than fifteen years… The sticking point is also the election system contributing to the existence of weak governments… The system of proportional representation creates fragile and politically heterogenous coalitions that are exposed to permanent crises.» [2].

Another fact is the permanent growth of medializing everything relating with politics. Politicians have come under such scrutiny of media that only the very strong individuals realize their political visions. Others are trying to hide behind somebody else not to be seen. This pressure is purposefully aimed at the elected politicians. If a politician gets drunks, it is in the news immediately. If a judge does the same, it usually remains without notice or the affair quickly fades away. Judges are not the subject of such media pressure as politicians are. Let me give you an example. Number of people in the academic sphere in Bohemia, Moravia and Silesia acquired associate professorship or professorship in Slovakia. If a judge from highest courts or the Constitutional Court obtained this title that way, it is not the subject of public debate. If this title is acquired by an academician, who is also a politician, immediately there are speculations as to whether it is a proper title. Of course, it is. It is usually the consequence of not good relations in the domestic workplace.

The afore-mentioned leads to the loss of authority of the elected representation in public sphere, that is to say of the parliament and the government, and to the passage of authority to courts, namely administrative courts and the Constitutional Court. This trend is supported by the weak political representation itself by taking the disputes over political direction, which should have been and should be decided primarily by the ballot boxes, to courtrooms, because the opposition regularly takes its loss in the Parliament to the Constitutional Court. An activist Constitutional Court does not hesitate to grasp the offered opportunity and under cover of constitutionality protection it enters the political arena of the opposition against the coalition.

Lenin's words about the seizure of power by the Bolsheviks can be used here - Power was lying on the street, so we picked it up. It is now picked up by the constitutional courts. The Constitutional Court is however only one of the state authorities with an indirect bond to the people as the source of power in a democratic state. Democracy may be weakened, but the government of elected forms its essence. And I see nothing better that democracy, at least for now.

The judiciary in a democratic state should not become a political tool in the sense of implementation of the objectives of power of its representatives. If that happens it is owing to the judicial activism, so to say owing to the judges alone.

These are constitutionally conforming tools of strengthening the power of judges. There will always be power in the state. If the power of the parliament and the government, either formally or informally, weakens, it is transferred somewhere else - to the judges and central bank councils, which are the bodies not primarily established by elections.

Even the New Testament contains the skeptical relationship to judges in the Gospel according to Luke in Jesus's words: «In a certain town there was a judge who neitherfeared God nor cared about men. And there was a widow in that town who kept coming to him with the plea: «Grant me just against my adversary.» For some time, he refused. But finally, he said to himself: «Even though I do not fear God or care about men, yet because this widow keeps bothering me, I will see that she gets justice, so that she will not eventually wear me out with her coming!» [3]. It is a picture of a judge who acts well only to set himself free from a party in the dispute.

2. Material core of the Constitution and cancellation of constitutional laws as an uncontrollable source of judicial power

However, a new element joined the game - theory of the material core of the Constitution and attempts of some judicial courts at seizing the cancellation of constitutional laws without the explicit constitution authorization. Even with the great factual power the judges in the continental law were considered as interpreters not establishers of the law. The truth is that an interpretation may be very extensive, but the judges were not those who grasped the roles of constitutional establishers. Material core of the law alone is nothing new. In the past the states expressly recognised the priority of right of God which is still binding for the believers nowadays. The contents of the right of God has been obvious for millennia and its interpretation cannot today be arbitrary. It is possible not to obey it, but then it is obvious that it is not obeyed. Even the pope as the Christ's deputy on Earth, although there were the popes with great powers, is only an interpreter, never the creator of the right of God. That is his limit, restriction of his power. If a pope does something bad, his position as the pope does not change the nature of the deed. even Alexander VI, the famous Rodrigo Borgia, could commit sins against the right of God, but he did not have the power to pronounce his sins the right - he was not the creator of the right of God as the material core or the transcendental source of the human right.

However, the theory of the material core independent of the right of God in newly applied, whereas it is factually created with reference to unchangeable and perpetual provisions of the constitution by the judges. Especially the judges of the constitutional courts through appropriation of the power to cancel the constitutional act [4]. This way they react to the fact that the human right may anytime be changed by the people and they search for its new transcendental basis. In the words of Ernst-Wolfgang Bцckenfцrd: «A free, secularized state lives from the presumptions that it is not able to guarantee.» [5]. In the words of Petr Hajek: «…a person who lost God is left to the mercy of - a person» [6].

The creator of a rule is the lord of the rule, it is depending on them. A rule created by the people may always be changed by the people, although it pronounces itself to be eternal. A transcendental rule may only come from a transcendental legislator. If the transcendental source (creator) of a right is God, the judge is subject to it. If it is another material core (focus) of the constitution, it is created by the judge and the judge is superior to it, he plays the God himself. An attempt at a transcendental and thus unchangeable rule without God is an attempt at the third path in law. From the viewpoint of Christianity and Judaism it is an idol, since there is no God than the God, there is no other transcendental legislator [7].

Power is tasty and its tastiness was described by Ladislav Mnacko, a famous Slovakian and Moravian writer born in Valasskй Klobouky in Moravia. The judges enjoy it, too. Thus they have higher responsibility to prevent themselves from unlimited disposal of this power, prevent themselves in the gradual process of connecting the power to interpret the law with the power to create constitutional rules by making themselves superior to the democratic constitution-maker.

3. Democratic point of view

There is no other legitimacy in secularized democracy than is the consensus of the majority. Although the government of the majority has its problem points as any other government, it is the essence of democracy that cannot be removed without the state losing its democratic regime. In democracy a citizen is the subject and object of the power. He/she is subject to the power, but he/she can wilfully co-create it, since he/she elects the one, who co-decide. During deciding by constitutional courts, central banks and similar institutions a citizen is the object of the power, its vassal. He/she cannot participate in the decision-making.

Most of the democratic states introduced the rigidity of the fundamental legal rules called constitutional. Thus, for their creation and change is not enough to have simple majority, but qualified majority. That secures a wider consensus of the society over constitutional rules in comparison with the lower consensus necessary for the adoption of ordinary acts. This wider consensus is accompanied by higher stability of constitutional rules. Nevertheless, the determination of constitutional rules remains in the hands of the parliament as a representative group elected by the people or is decided directly by the people in a referendum or there are various combinations possible. Everything remains within democracy, which of its essence does not and cannot have a different basis of the sovereign power than the people.

Democracy is based on trust in people, which is fully expressed in the words of Tomas Garrigue Masaryk: «…democracy is an opinion of life, it lies in trust in people, humanity and humanness, and there is not trust without love and no love without trust.» [8]. The quality of a democratic government is dependent on the quality of the majority, who gave the power to govern to the power holders [9]. This quality either exists or does not exist, but the consent of the majority as the source of government in democracy cannot be replaced. Other sources of government are possible, but not in democracy.

If we accept the existence of a legally undefined material core of the constitution and thus the possibility of cancelling constitutional acts by the Constitutional Court for other reasons than is the defective procedure of their adoption, than in reality the superior state body becomes the Constitutional Court who takes off people s sovereignty and seizes it by itself. Constitutional judge Jan Musil said: adopted solution (cancellation of the constitutional act - author's note), in my opinion, violates the subtle balance between the principles of democratic nature and lawfulness to the harm of the principle of democratic nature.» Then he continues: «This trend is the expression of the elitist conception of the «law interpretation key holders», which has regularly repeated itself in human history. In my opinion it is a destructive conception not leading to good endings.» He also reminds of Churchill's sentence of democracy as the best of all bad governing models. The constitutional court gains the rule in the state, its sovereignty [10].

The extent of performance of the power based on the material core of the constitution depends only on the self-limitation of the Constitutional Court. That is in the situation, when it is secured by the material core of the constitution, however without its express defining by the constitution-maker, which leads to uncertainty as to the understanding of this concept by the Constitutional Court. The rule factually applies to each uncontrollable power holder. It can cancel whatever and explain it with the interpretation of the material core of constitutionality. Although at first each power holder argues with the necessity of a correct result before the correct process, it is only a question of time, when the result is arbitrariness. Radoslav Prochazka talks about a «gospel over freedom, the protection of which stops being, in the regime of a preferred correct result before the correct process, perceived as the first and the fundamental reason of existence of a state» [11]. American judge Learned Hand says the to the desire of some judges to be superior to the parliament: «I would have hopeless feeling, if I was to be ruled by a group of Platonic guards, even if I knew how to select them well, which I definitely do not know. If they were making decisions, I would lack the impulse contained in the possibility to live in the society, in which I at least have a theoretical participation in the administration ofpublic affairs.» [12].

Pavel Hasenkopf sees the doctrine of the material core of the constitution as deeply undemocratic: «The doctrine of the material core of the constitution itself is very problematic… This vague basis can be used to reason basically everything regarded by the Constitutional court as incorrect, and any time it is given opportunity to do so. This doctrine is deeply undemocratic, in its very essence… In other words, the judicial power exceeds the borders of its own powers to the harm of the constitution - holder…. And it is up to the responsibility of other state bodies not to make this approach, completely denying legal safeguards, a common method of legal interpretation.» [13].

The popularity of the theory of material core of the constitution may also be supported by the disappointment from the practice of parliamentary democracy and party politics, as well as the efforts at attaching to some other non-elected human authority - Constitutional Court. However, there is only the people and the God above constitution-maker in democracy. If somebody refuses God, only the people remain. If we replace the people with the Constitutional Court, we are replacing democracy with another regime. Trust in courts may lead to disillusion just as in the case of party politics. The people - judges are as good or bad as the people - deputies.

The USA example clearly shows how the Highest Court restricted the rights of the people and supported slavery in the 19th century. This issue was decided by the people to the disadvantage of the court in the civil war of the North against the South subsequently. But even then, the Highest Court promoted the preservation of racial segregation. In 1857, the U.S. Highest Court used the case of Scott, the slave, to determine that slaves are not parts of the people and citizens who have the right to freedom and cannot claim any rights whatsoever, including court protection. In addition it proclaimed unconstitutional the laws of the Congress, which forbade slavery in some states, which was the second case of applying the court's possibility to proclaim the act unconstitutional and annul it after the first case in 1803 (Marbury v. Madison) [14]. After the war of the North against the South, constitutional amendments were adopted - the thirteenth amendment in 1865 forbidding slavery and serfdom, the fourteenth amendment in 1868 of equality of citizens and a regular court process, and the fifteenth amendment in 1870 forbidding election discrimination based on the race. In 1875, the Congress adopted an act on civil rights containing a ban on discrimination. A part of this act was proclaimed unconstitutional by the Highest Court, when the court admitted that a black man might be refused a job in public accommodation. In its following decisions it also admitted racial segregation in the education system, transport and other services. Its conception of equality was based on the statement that if there is segregation on railway, both the blacks and the whites must have the same services available, albeit separated first classes and sleeping cars [15]. The decisions of the U.S. Highest Court made in the 19th century show that judges may fight with the democratic parliament based on the principles that we today see as unacceptable. Some anti-segregation decisions of the U.S. Highest Court from the second half of the 20th century are only remedies of the preceding undemocratic acts of this institution. And it was the U.S. Highest Court, who sanctified the mass internment of American citizens of Japanese origin during World War II for the reasons of their origin [16].

The desire of those who are not able or willing to enforce their ideas by a regular change in the law and by defending their issues in elections, but only use their power regardless of the law, is aptly characterized by the statement of the Nazi legal theoretician Carl Schmitt: «We are changing the comprehension of legal concepts… We are on the side of future things.» [17]. In other words, if I lack democratic majority to properly change a legal rule in the parliament, I give it new contents through the court. But what are those future things? And do we want them all or only a certain group of us?

An example is the introduction of same-sex marriages. Sometimes the advocates of their legalization take the road of a political fight through parliaments and referendums. This road led to success in catholic Ireland on the 22nd May 2015, when the referendum accepted the possibility of a marriage of two people regardless of their sex, or in Finland, where this requirement was legalized in February 2015. Somewhere else these efforts are taken by a court fight. When the defenders of this understanding of marriage lost in their fight through political tools, they are trying to recover the change as their constitutional right [18]. The courts then change the comprehension of legal concepts. In 2015, the U.S. Highest Court pronounced the prohibition of homosexual marriages practiced in some states of the American union as unconstitutional [19]. Thus its close majority of 5 to 4 accepted the new conception of marriage as a union of two women or two men. I am positive that the originators of the American constitution in the 18th century would be surprised about what they are being told by the Highest Court in the 21st century. In those times, other marriage than bond of a man and woman was unthinkable. And are 5 people superior to the thousands of members of U.S. congresses and the member states, who have a constitutional right to a constitutional change? And do the judges stop here? Certainly not. It is only a question of time, when somebody wants to recover polygamy. After all, USA have experience with the polygamy of the Mormons. The fundamental life questions should be decided by a sovereign. Even some judges realize so. The Chief Justice John G. Roberts as the member of a disagreeing minority of judges stated to the advocates of the change: «They are not celebrating the Constitution. It does not have to do with it. (…) This court is not legislature. Whether a homosexual marriage is a good idea should not be our interest.» [20]. Judge Antonin Scalia wrote: «Today's decision means that my ruler and the ruler of 320 million Americans from one coastline to another is the majority of nine lawyers of the Highest Court. This standpoint expands the court powers in such a manner, of which the Constitution or the amendments did not even think. The practice of such constitutional revision of the unelected committee of nine, always supported by a great appraisal of freedom, robs people of the most important freedom enforced in the Declaration of Independence and won in the revolution of1776 - the freedom to be their own rulers.» [21].

The sovereign in democracy is the people, who can decide directly or through its temporarily elected representatives. If the decisions are made by judges not elected by the people, who hold their offices for a lifetime or for a very long time, democratic quality given as the governing of the elected and the governing for time are reduced. Such change in the fundamental characteristics of the state is possible, however must be made by amending the constitution, not by its raping, pro-judicial interpretation of the judges as such.

Conclusion

Judges are people, their legal education does not make them any better. Even the judges are attracted by the power and try to adapt the rules to their advantages. That is corroborated by the President of the Constitutional Court in Brno Pavel Rychetsky, who let himself reappointed not only the judge of the Constitutional Court in 2013, but also its President. This way, his act denied the reasoning of the finding of the Constitutional Court [22] preventing other court Presidents from repeating their functions. Rychetsky's words seem hypocritical after having himself reappointed the President of the Court: «I have been a long-term permanent opponent of the possibility to repeat the mandate of a judge of the Constitutional Court. I reckon it should last longer but should not be repeated.» [23].

The assessment of judges and lawyers may suitably be used in the words of Jan Musil, the judge of the Constitutional Court in Brno: «The idea that lawyers may be those, who in the final instance manage to solve the dispute between the right and the wrong, is absolutely incorrect and rebut in history countless times…. Or did the lawyers prevent totality regimes from existing and working? Did not the judges assist in the crimes offascistic and communistic justice?» [24].

How lawyers, not the law, may fail

«Judicial stated» existed in Bohemia and Moravia in times ofWorld War II, when the state President of the Protectorate of Bohemia and Moravia was the emeritus President of the Highest Administration Court Emil Hacha and the long-term Prime Minister between 194245 was Jaroslav Krejci, who from 1938 and during the Protectorate had held the function of the President of the Constitutional Court. Great lawyers, poor politicians, who remained in their functions even after the Lidice massacre. Regretfully, judges often fight for democracy and human rights in the time, when the state is democratic, not in the time, when it is needed to go to the barricades. How odd are in this relation the words of the President of the Constitutional Court Jaroslav Krejci from the times when he was its secretary, when in reaction to the prevention from a scientific research in Germany and to defend the legality of the Night of the Long Knives by Carl Schmitt [25] he stated: «It is natural that under such circumstances, when objective scientific work may not only be inconvenient, but also dangerous, decent lawyers become silent [26]. Him, and others, did not stay silent as lawyers even after occupation in 1939, and collaborated with the Germans.

References

1. Fiala P. Politika, jaka nema byt. Bmo 2010. P. 18, 26-29, 28.48

2. Klaus V a kol. Ceska republika na rozcesti. Cas rozhodnuti. Praha, 2013. P. 95, 96

3. Luke 18, 2-5

4. Koudelka Z. Zruseni ыstavniho zakona Ustavnim soudem. Stвtni zastupitelstvi 11/2011. P. 9-23

5. Bockenforde E.-W. Recht, Staat, Freiheit. Studienzur Rechtsphilosophie, Staatstheorieund Verfassungsgeschichte. Frankfurt am Main, 2006. S. 112. Hollander P. Ustavni zmeny: Mezi neurozou a surrealismem. Ustavnй pravo 20 rokov po pade komunizmu. Plzen, 2011. P. 8-9

6. Hajek P. Smrt v sametu. Praha, 2012. P. 85

7. Koudelka Z. Transcedentalni pramen prava. Trestniprвvo. 2013. №11-12. S. 10-21

8. Capek K. Hovory s T.G. Masarykem. Praha, 1990. Cast 3. Mysleni a zivot, kapitola Politika, podkapitola Demokracie. P. 328

9. Prochazka R. Eud a sudcovia v konstitucnej demokracii. Plzen, 2011. P. 55

10. Musil J. points 13, 17, 20 of part III. Zmena paradigmatu demokratickйho a pravrnho statu of his dissent standpoint to resolution of the Constitutional Court dated September 15, 2009, no. PLUS 24/09 in the matter of constitutional complaint against reduction of the term of Chamber of Deputies by a constitutional act

11. Prochazka R. Lud a sudcovia v konstitucnej demokracii. Plzen, 2011. P. 7

12. Learned hand: The Contributionsofan Independent Judiciary to Civilization. The Spirit of Liberty. New York 1952. P. 73-74. Prochazka R. Lud a sudcovia v konstitucnej demokracii. P. 98-99, 105

13. Hasenkopf P. Jak to bylo s ratifikad Rrmskйho statutu Mezinarodrnho trestnlho soudu. Prаvni rozhledy. 2009. Vol. 20. P. 732

14. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Petruv H. Kruh americkй koncepce rovnosti (Od diskriminace mensin k diskriminaci vetsiny). Pravrnk. 2008. №10. P. 1085-1086. Prochazka R. Lud a sudcovia v konstitucnej demokracii. P. 5-6

15. The Civil Richts Cases, 109 U.S. 3 (1883). Plessy v. Ferguson, 163 U.S. 537 (1896). Mc. Cabe v. Atchison, Topeka& Santa FeRailway, 235 U.S. 151 (1914). Petruv H. Kruh americkй koncepce rovnosti (Od diskriminace mensin k diskriminaci vetsiny). Prаvmk. 2008. №10. P. 1089-1093

16. Korematsu v. United States 323 U.S. 214 (1944)

17. Schmitt C. Nationalsozialistisches Rechtsdenken. Deutsches Recht. 1934. P. 229

18. Banaszkiewicz B. Nova vlna zajmu o manzelstvi v щstavrnm pravu (щvahy o stredoevropskych zkusnostech). Prindpy konstitucionalizmu. Plzen, 2015. S. 219-288

19. Decision of the U.S. Highest Court from the 26 th June 2015. James Obergefell, et al., Petitioners v. Richard Hodges, Director, Ohio Department of Health, et al

20. Introduction of the dissent standpoint of the Chief Justice John G. Roberts, p. 2. URL: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

21. Introduction of the dissent standpoints of the judges Antonio Scalia and Clarence Thomas, p. 2. URL: http://www. supremecourt.gov/opinions/14pdf/14-556_3204.pdf

22. Cast IV vyroku a cast Ve, bod 65 of the reasoning of the finding no 294/2010 Coll. (Pl.ЬS 39/08). Koudelka Z. Funkcionari justice a щstavnost. Trestrn pravo. 2013. №2. P. 4-9

23. Rychetsky J. Sйf Ьstavmho soudu Rychetsky o soumraku civilizace a Zemanovi. Parlamentnilisty. 2013. Cz 30. 10. URL: http://www.parlamentnilisty. cz/arena/rozhovory/Sef-Ustavniho-soudu-Rychetsky-o-soumraku-civilizace-a - Zemanovi-291453

24. Musil J. Zmena paradigmatu demokratickйho a pravmho statu. Bod 23, cast III of his dissent standpoint to resolution of the Constitutional Court dated September 15, 2009, no. Pl.ЬS 24/09 in the matter of constitutional complaint against reduction of the term of Chamber of Deputies by a constitutional act

25. Schmitt C. Der Fьrer schьtzt das Recht. Deutche Juristen-Zeitung. 1934. №15. P. 945. 26. Krejci J. Problйm prвvrnho postavern hlavy statu v demokracii. Praha, 1935. P. 7.

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