Pl. US 14/01

     The  Plenum of the Constitutional Court decided  on  26
June  2001 in a proceeding pursuant to Art. 87 para. 1, lit.
k)  of  the Czech Constitution and § 120 of Act No. 182/1993
Sb.,  on  the  Constitutional Court, as amended (hereinafter
Court  Act), on the proposal of the Prime Minister  and  the
government of the Czech Republic seeking a judgment that the
29  November 2000 decision of the President of the Republic,
in  which  he  appointed  Zdenek Tuma  Governor,  and  Ludek
Niedermayer  Vice-Governor,  of  the  Czech  National  Bank,
required for its validity the countersignature either of the
Prime Minister or of a member of the government entrusted by
him with that task, decided:

           The petition is rejected on the merits.
                              
                         Reasoning:

     On  20 April 2001, the Constitutional Court received  a
petition  initiating  a  proceeding,  in  which  the   Prime
Minister  and the government of the Czech Republic sought  a
judgment  declaring that the President's  29  November  2000
decision  appointing the Governor and Vice-Governor  of  the
Czech  National  Bank  (hereinafter CNB)  required  for  its
validity the countersignature of the Prime Minister, or of a
designated   member   of   the  government.    By   way   of
introduction, the petition stated that, by his  29  November
2000  decision, President Václav Havel appointed the  Zdenek
Tuma  Governor of the CNB and Ludek Niedermayer the CNB Vice
Governor,   without  requesting  that  the  Prime   Minister
countersign this decision, as meant in Art. 63  para.  3  of
the  Constitution, and without previously  recalling  Zdenek
Tuma   from  the  office  of  CNB  Vice-Governor  or   Ludek
Niedermayer  from his office as a member  of  the  CNB  Bank
Council . . .

                             II.
. . . . .
The  petition initiating the procedure rests upon  arguments
under four headings:
     on  an argument concerning „monocratic“ elements in the
status of the CNB Governor
     on  a  comparative interpretation of other  appointment
powers pursuant to Art. 62 of the Constitution
     on  the  interpretation of intent  of  the  constituent
assembly  or  legislature and ties to  the  preceding  legal
regime
     by   reference   to  principles  of  the  parliamentary
democracy form of constitutional state.


1.    The appointment of members of the Bank Council to  the
office of CNB Governor is effected by means of a single  act
of  appointment.  Even the petitioners proceed on the  basis
of  this  fact  (p.  4  of the Reply),  well  aware  of  the
unforeseeable   complications  and  potential  dysfunctional
consequences  which  two  separate  and  distinct  acts   of
appointment  would bring about, both to the members  of  the
Bank Council and to the CNB Governor or Vice-Governors, even
more  so  in the situation when no legal obligation is  laid
down  –  as is the case with the Constitutional Court  –  to
select these three officials of the Bank Council from  among
the  ranks  of  already appointed members of  that  Council.
Despite  the  fact that an additional act of appointment  is
not  concerned, and thus, in that sense, not even a separate
power  as  meant  by  Art.  63  of  the  Constitution,   the
petitioners nonetheless take the position that the status of
the CNB Governor diverges from that of the other members  of
the  Bank  Council  to such an extent, that  the  Governor’s
authority, which arises from statute, justifies the  use  of
the  appointment procedure pursuant to Art. 63 para.  2  and
not that pursuant to Art. 62 of the Constitution.

     According to the petitioners, although the statute (§ 5
of the Act on the CNB) acknowledges the position of the „the
supreme directive body of the Czech National Bank“, the Bank
Council,  its  exclusive competence  is,  however,  „defined
merely by way of example, an enumeration of matters of basic
significance.  The Act on the CNB makes nearly no  reference
to  the issue of who is authorized to act and take decisions
in  other  matters“ (p. 6 of the Petition) and according  to
the  petitioners  it  is thus possible  to  judge  that  the
supreme  instance  is  precisely  the  Governor,  who  is  a
monocratic  organ  with independent competences  and  powers
which  significantly exceed the authorities and  competences
resulting  from membership in the Bank Council, a  collegial
body (p. 4 of the Reply).

     Neither  assertion  is, however,  in  accord  with  the
facts.  First of all, the Act on the CNB does not define the
competences of the Bank Council „merely by way of  example“,
rather § 5 para. 1 formulates the main function of the  Bank
Council; moreover it designates the Bank Council as a  whole
as  the  „Supreme directive organ of the CNB“.   The  second
paragraph  then introduces the enumeration of a further  set
of   Bank   Council  powers  with  the  words  „further   in
particular“.  These words were not intended to restrict  the
competence of the Bank Council, on the contrary they  raised
the  possibility  of including within its competencies  also
other,  unenumerated matters.  The purpose of this provision
is  thus not to restrict, rather to expand the scope of  the
Bank Council’s decision-making capacity.

     This  legal rule/regulation alone generally calls  into
question  the  status of the CNB Governor as  a  „monocratic
organ with independent decision-making power“.  However, not
even  the  petitioners’ specific references to the statutory
powers  of the Governor, meant to substantiate the arguments
in favor of his monocratic position, do not hold water.

     If  we  proceed from the assumption that  a  monocratic
organ  is  embodied by a person who himself or herself  acts
and takes decisions as an organ, while a representative of a
collegial  body acts only in the name of that  body  and  is
entirely bound by its decisions, that any effort to conceive
of  the  CNB  Governor  as  some  sort  of  an  independent,
monocratic organ does not pass muster.  The CNB Governor  is
one  of  the  members of the Bank Council, as  the  CNB  Act
provides  that the Bank Council is composed of the Governor,
two   Vice-Governors,  and  four  additional   leading   CNB
employees  (§  6 para. 1 of the CNB Act).  By  statute,  the
Bank  Council  acting as a collegiate  body  is  the  Bank's
supreme directive body, thus individual Bank Council members
are  not endowed with decision-making power.  As far as  the
Governor is concerned, his status differs from that  of  the
other  members by the fact that either he, himself, presides
over  the  Bank Council, or the Vice-Governor designated  by
him  (§  7  of  the  CNB Act), further  the  CNB's  external
relations is conducted on its behalf, either by the Governor
himself or the Vice-Governor he designates (§ 8), and he  is
authorized  to participate, with the right to vote,  in  the
government's consultative meetings (§ 11).  Not even in this
fact can one spot any component of a monocratic status vis-a-
vis  the  Bank  Council, if he is obliged to  repsect  their
views  and convey their positions, not to mention  the  fact
that  in  this case decision-making power is not  concerned,
only a consultative function.  Both the petitioners, as well
as  others,  acknowledge  to the Governor  only  the  status
within  the Bank Council of the first among equals.  As  far
as  concerns additional powers of the Governor, in the whole
of the CNB Act, one can find only § 50, which provides that,
in  the  public  interest,  the  Governor  may  relieve  CNB
employees  of  the  duty  to  maintain  confidentiality   in
official Bank matters.  This provision is the sole exception
in  favor  of the Governor, whereas the CNB Act  contains  a
long series of provisions which conceive of that, which  the
petitioners designate "other matters", as powers of the Bank
Council as as a collegiate body.

     The petitioners further argue that, pursuant to § 4  of
Act  No.  309/1999 Sb., on the Collection of  Laws  and  the
Collection  of International Treaties, the CNB Governor  has
the  power  to sign legal enactments issued by the  CNB  and
promulgated in the Collection of Laws.  Not even this  power
can  be  interpreted  as  an expression  of  the  monocratic
character  of  the  CNB  Governor's  decision-making  power,
since,  just as in the case of the promulgation of statutes,
the Constitution prescribes the group of persons who are  to
sign  statutes,  in  this case as well, the  CNB  Governor's
signature has no constitutive significance.  It is his  duty
to sign the promulgated norm, and his refusal to sign cannot
be deemed as an obstacle to the norm's validity.
     
. . . . .

     For  the given reasons, the Constitutional Court cannot
agree with the petitionors, for these statutes do not assign
the  President any further powers, nor do the  positions  of
the  Governor  and  Vice-Governors within the  Bank  Council
exceed, in comparison to the other members, the framework of
the Bank Council to such an extent that it would be possible
to  conceive  of  them  as  separate  offices,  requiring  a
separate appointment by the President.  The CNB Act does not
expand the President's right of appointment to include a new
appointment  power, for the Constitution provides  that  the
President appoints all members of the Bank Council,  without
the  Constitution specifying their particular  designations.
In  contrast  to other instances of appointment pursuant  to
Art.  62, the Constitution does not need to state in  detail
how  many  members  there are and how they  are  designated.
This  is done only in the CNB Act, which provides that there
shall  be  a  Governor, two Vice-Governors, and  four  other
members.   Therefore, it specifies the  composition  of  the
Bank Council.  Since the CNB Act was promulgated a mere  day
after the Constitution itself and its text was known at  the
time  the Constitution was adopted, it can be presumed  that
those  adopting the Constitution would have formulated  Art.
62,  lit. k) in a different manner had they had in mind  the
introduction  of a manner of appointing the  Governor  which
diverged from that of the other members.

2.   The Constitutional Court also made a comparison of  the
modes  of  appointment  procedures  in  each  case  of   the
President’s  powers under Art. 62 of the  Constitution.   It
did  so in view of the petitioners’ objection that, Art.  62
lit.  k)  of  the  Constitution  provides  merely  that  the
President  appoints  members of the  Bank  Council,  whereas
under  lit. e) of that article it is stated that he appoints
not  only the Justices of the Constitutional Court, but also
its  Chairperson  and Vice-Chairpersons,  despite  the  fact
that,   in  the  latter  case,  the  Chairperson  and  Vice-
Chairpersons are also Justices, and thus also members of the
Constitutional Court Plenum.  According to the  petitioners’
conception,  the Constitution so provides due  to  the  fact
that   the   Chairperson  and  Vice-Chairpersons  have,   in
addition, further special competencies tied to their  office
(p.  4  of  the Petition).  The petition does not,  however,
indicate why the Constitution does not proceed in a  similar
fashion  also in the case of the CNB Governor, to  whom  the
petitioners also attribute further special competencies tied
to his office.  If that were truly the case, then, according
to  the petitioners’ conceptions, the Constitution would, in
this case as well, have had to mention explicitly the office
of CNB Governor, which, however, it did not do.

     It  is  the Constitutional Court’s view that the reason
for  the use of divergent appointing formula in Art. 62 must
be  looked  for elsewhere.  The reason why, in  contrast  to
Art.  62, lit. k), there are different rules for appointment
in Art. 62, lit. e) in the case of the Constitutional Court,
as  well  as in Art. 62, lit. j) in the case of the  Supreme
Auditing Office, and Art. 62, lit. a) for the appointment of
the   Prime  Minister  and  of  the  other  members  of  the
government, is found primarily in the fact that in all three
of  the  above-mentioned cases it was necessary to designate
specially the person appointed to be the head of that  body,
seeing  as their appointment was governed by a method  which
differed from that of other members of that body.   It  must
also  be  added that, in order to name the members of  these
bodies,  the  consenting actions of  another  body  (Senate,
Assembly  of  Deputies, Prime Minister)  is  also  required.
Thus, for example, in the case of lit. a), the rules for the
appointment and recall of the Prime Minister and  those  for
other  members  of the government differ.   As  regards  the
other members of the government, pursuant to Art. 68 para. 2
of the Constitution, they may be appointed and recalled only
on  the proposal of the Prime Minister.  The same applies in
respect  of  the members of the Constitutional  Court  [lit.
e)]:     the    Chairperson   and   Vice-Chairpersons    are
differentiated  because – in contrast to the appointment  of
other  Justices –  their appointment from among the Justices
of  the Constitutional Court does not require the consent of
the  Senate  (Art.  84  para. 2 of  the  Constitution).   As
concerns lit. j), it speaks explicitly of the President  and
Vice-President of the Supreme Auditing Office, since Art. 97
para.  2  states  that these persons are  appointed  by  the
President of the Republic on the proposal of the Assembly of
Deputies, whereas other members are elected by the  Assembly
of  Deputies on the proposal of the President of the Supreme
Auditing  Office.  It is precisely due to the fact that  the
manner of appointing the Governor and the Vice-Governors  in
no way differs from that of all members of the Bank Council,
that  the text of Art. 62, lit. k) was limited to the  brief
formulation:  „appoints the members of the Bank  Council  of
the Czech National Bank.“

     In  this connection, the Constitutional Court considers
it  necessary  to emphasis that there is a basic  difference
between  the  way  in which the Constitution  regulates  the
appointment  power  of  the President  of  the  Republic  in
relation  to  the Chairperson and Vice-Chairpersons  of  the
Constitutional  Court and in relation to  the  Governor  and
Vice-Governors of the CNB.  The Constitution lays down  that
the  consent  of  the Senate (Art. 84 para.  2)  is  a  pre-
condition  to  the  appointment  of  all  Justices  of   the
Constitutional Court (thus, even those who are designated in
Art.  62 as the Chairperson and Vice-Chairpersons).  In this
instance,  the Constituent Assembly was aware  that  if,  in
that  case, a differing rule is to be applied and the manner
of appointment set down generally in Art. 62, lit. k) is not
to  govern,  the subsequent appointment of Chairpersons  and
Vice-Chairpersons from among the existing  Justices  of  the
Constitutional  Court had to be laid  down  expressly  in  a
constitutional act, and not in an ordinary statute.

     In contrast to the Constitutional Court, in the case of
the  Bank  Council,  the Constitution makes  no  distinction
among  the  individual members of the Bank Council.   If  in
this  case,  the  Constitution does not  explicitly  make  a
distinction  between the manner of appointing  the  Governor
and  the Vice-Governor from the manner, which it itself lays
down,  for all members of the Bank Council, then unless  the
Constitution itself expressly so permits, a different  means
of  appointment for some members of the Bank Council can not
be  deduced  from  the fact that the terms  of  an  ordinary
statute  provide that, apart from other members of the  Bank
Council, the Governor and Vice-Governors are also members of
the Bank Council.

     In  contrast  to  the Constitutional Court,  where  the
President  of the Republic selects the Chairperson  and  the
Vice-Chairpersons from among the already appointed  Justices
of  the Constitutional Court, in the case of the appointment
of the CNB Governor and Vice-Governors, the President is not
obliged  to  appoint these officers from among the  existing
members  of the Bank Council.  In contrast to its provisions
governing  the  Constitutional  Court,  in  this  case   the
Constitution  does  not  presume two  different  appointment
regimes  for the Governor and Vice-Governor on the one  hand
and  for the other members of the Bank Council on the other.
Even  less can such a conclusion be deduced from an ordinary
statute, not to mention the fact that this conclusion cannot
be  inferred from the mere enumeration (in § 6  of  the  CNB
Act) of the Bank Council members.

     In  addition, there exist rational reasons, within  the
logic  of  the CNB Act, why the appointment of the  Governor
and  Vice-Governors are dealt with  in § 6 paras. 2  and  3,
separately  from  the  appointment of the  other  four  Bank
Council  members.   They consist in the fact  that  the  two
paragraphs contain differing conditions for appointment:  in
contrast to the Governor and Vice-Governors, the other  four
Bank  Council members must be appointed „from the  ranks  of
leading  employees „ of the CNB (it must be noted that  this
constitutionally-questionable restrictive condition has  not
been  contested).  If the Constituent Assembly had  intended
that the Governor and Vice-Governors and the other four Bank
Council members be appointed in two differing ways, or  that
the Governor and Vice-Governors be appointed only after they
had  been named to the Bank Council by a further appointment
decision,  making  reference to their  office  in  the  Bank
Council,  it  would  have  had to  express  this  desire  by
differentiating in the Constitution, in the same way  as  in
other cases of nomination under Art. 62 of the Constitution.

     It  is  an elementary constitutional rule that, if  two
differing  appointment regimes are to be  introduced  in  an
area  of  constitutionally  defined  exclusive  presidential
power,  it  is necessary that these two regimes  be  defined
directly  in  the text of the Constitution.  The fulfillment
of this precondition is a „conditio sine qua non“.

     The  conclusion that there is only a single appointment
decision  in  the  case  of  all  Bank  Council  members  is
evidenced  by the fact that they all have a common  six-year
term of office (§ 6 para. 4 of the Act on the CNB), which is
not altered even in the case that individual members have  a
change of status (for example, the subsequent assumption  by
a  Bank  Council member of the office of Governor).   Should
the  President appoint the Bank Council members on a certain
date, the fact that he subsequently appoints one of them the
Governor  does  not cause that member’s term  of  office  to
begin running anew.

     In  the  view of the Constitutional Court, a comparison
of the modes of appointment procedure pursuant to Art. 62 of
the Constitution does not argue in favor of the government’s
petition either.


3.   The  petitioners also refer to the connections  between
the   CNB  Act  and  its  predecessor  legislation  on   the
Czechoslovak  State  Bank, pursuant to which  the  President
appointed  the  Governor on the proposal of the  government,
and  the  Vice-Governors on the proposal  of  the  Governor,
following consultation with the federal government.   It  is
alleged  that, in a great many respects, this  act  was  the
model for the CNB Act.  In the petitioners’ view, there  are
no  grounds for presupposing that the Constitution  and  the
CNB  Act would be meant to diverge a statutory framework  so
recently  preceding it to such an extent that the government
would  be  entirely excluded from the process of  appointing
the Governor and Vice-Governors.

     Documents  reflecting the genesis of the  CNB  Act  are
not,  however, consistent with the petitioners'  view.   The
Constitutional Court has ascertained that, in the course  of
drafting  the  CNB Act, the Czech National Council  rejected
the  proposal  for the reception of the preceding  statutory
scheme.  As follows from the recording of the Czech National
Council’s  17 December 1992 session, at which the government
bill  on  the  CNB  was  debated, the  assembly  unanimously
adopted  the  view  of  the Constitutional-Legal  Committee,
expressing  the  position that:  „ . .  .  in  none  of  its
provisions  does  the Constitution restrict the  President’s
appointment  power in any manner whatsoever“  (Recording  of
the  11th Session CNC of its VIIth Electoral Term).  In  his
reply to the petition initiating this conflict of competence
proceeding, the President stated, in relation to this issue,
that   this   opinion,  expressed  by  the  then   competent
constitutional  officials,  is  supported  even  by  current
constitutional officials, and he refers, in this regard,  to
the   speech  of  the  current  Deputy  Prime  Minister  for
Legislation made before the Plenum of the Senate on 7 August
2000,  in  which  he characterized the appointment  of  Bank
Council  Members,  i.e., the Governor,  Vice-Governors,  and
other   members,  as  the  „exclusive  competence   of   the
President,  unrestricted  by the need  for  contrasignature“
(stenographic record of the Senate for 7 August 2000).

     As   regards  the  issue  of  the  connection  to   the
previously  existing rules, the Constitutional  Court  notes
that,  in  drafting the Czech Act on the CNB, without  doubt
the  legislature  proceeded from a different  constitutional
situation,  for the Act on the Czechoslovak State  Bank  was
adopted   previously   as  a  kind  of  quasi-constitutional
regulation, comparable to an organic law and above all in  a
federal state, in which the cooperation of a collegial body,
i.e.,  a government formed from representatives of both  the
Czech   and   Slovak  sides,  represented  an  institutional
counterweight to the appointment power of the  President  of
the  Republic,  the  sole independent (of  party  influence)
person.   When  the CNB statute was being drafted  following
the  collapse  of the federation, these considerations  lost
all  significance,  or  at  least  were  deprived  of  their
original weight.

     The  interpretation of Art. 62, to the effect  that  it
grants  the  President of the Republic the right to  appoint
all  members  of  the  Bank Council  without  the  need  for
contrasignature, has been respected and followed in practice
without  interruption since 1993 until the  debate,  in  the
year   2000,  on  the  act  amending  the  CNB  Act.    This
interpretation  has been confirmed, and  is  even  gradually
developing  into a constitutional custom.  It is well  known
that  in  a  constitutional state constitutional  customs  –
conventions – have great significance precisely due  to  the
fact  that  they create from the constitution  a  functional
whole  and  bridge  the gap between the mere  expression  of
constitutional   principles   and   institutions   and   the
variability  of constitutional situations.  In a  democratic
law-based  state, it is scarcely imagineable  to  call  into
doubt,  by the expedient of a distorted interpretation,  the
interpretation   of  the  constitution  and   constitutional
customs corresponding thereto, respected and uncontested the
entire time from the inception of the Constitution, and with
them  the  whole  existing practice,  including  a  host  of
decisions which had never until that time been attacked.

     It  is not essential to verify the extent to which  the
formal  requirements  for the formation  of  “constitutional
customs”  have been met, rather the mere circumstance  that,
for  a  period of more that eight years on the  basis  of  a
value  and  institutional consensus  on  the  constitutional
plane, one means of proceeding has been adopted in practice,
which  without  the resistance of any of the  constitutional
bodies,  has  repeatedly  and unequivocally  confirmed  that
interpretation of Art. 62, lit. k) of the Constitution which
accords to the President the exclusive power to appoint  the
Governor  and the Vice-Governors of the CNB, hence  a  power
not requiring the Prime Minister’s contrasignature.

     Of  no  less  importance is the circumstance  that,  in
spite of the legal reservations to the procedure, which  led
the Prime Minister and the government to bring the matter to
the  Constitutional  Court only on 20 December  2000,  these
institutions  de  facto recognized and at the  present  time
continue  to  recognize a situation which is,  according  to
their assertion, in conflict with the competencies laid down
in  the Constitution.  This aspect is reflected in the  fact
that  the petitioners contested only the appointment of  the
Governor  and  that  of  one  of the  Vice-Governors,  while
overlooking the appointment of the second Vice-Governor, and
this despite the fact that his appointment, according to the
petitioners’  position, was also effected in a manner  which
they designate as unconstitutional and invalid.  If then the
government,  by its other actions as well, acknowledged  the
contested  appointments, which fact  follows,  for  example,
from  the  correspondence of the Prime Minister himself,  of
the  deputy  prime  ministers, and of individual  ministers,
from invitations to take part in meetings of the government,
as   well  as  from  further  acts  evincing  agreement,  an
undesirable  condition  of uncertainty  of  legal  relations
arises,  the risks of which, to a decisive degree,  are  not
borne  by the parties to this dispute, rather by individuals
and  legal  persons  whose  rights  have  been  affected  by
decisions,  not  to mention the uncertainty  concerning  the
status  of  persons  occupying  particular  offices  to  the
domestic  public in general, but especially  in  respect  of
foreign relations.

     Despite  the fact that the Prime Minister and 12  other
members of the government unanimously decided, in Government
Resolution No. 1210 of 28 November 2000, that “they  do  not
consent  to the Prime Minister contrasigning the President’s
decision  appointing  Zdenek  Tuma  Governor  of  the  Czech
National  Bank  and Ludek Niedermayer Vice-Governer  of  the
Czech  National  Bank”,  the Prime Minister  and  the  other
members of the government continue to deal with Zdenek  Tuma
as  the  CNB  Governor.  Thus, in his letter of 28  February
2001,  for  example,  Prime Minister  Miloš  Zeman  informed
Governor Zdenek Tuma that “as Governor of the Czech National
Bank”  he will be informed of meetings and invited  to  take
part therein.  From this follows as well the recognition  of
the  Governor in certain of his duties, such as in  relation
to the CNB's emission duties, hence also Zdenek Tuma’s right
to  sign newly issued banknotes, even despite the fact that,
by its refusal to consent to his appointment, the government
has  cast doubt upon the legal validity of that, as well  as
others  of  his  acts, even in the case  that  the  duty  of
contrasignature was recognized as constitutional.

     Not  only  the  practice up till  then,  but  also  the
subsequent formulation of the amendment to the CNB Act,  No.
442/2000  Sb.,  clearly  testifies  to  the  fact  that  the
legislature was not proceeding from the assumption that  the
acts  appointing the CNB Governor and Vice-Governors require
contrasignature.    The  petitioners'  argument   that   the
President has a duty to submit the named appointment act  to
the  Prime Minister for his contrasignature is substantiated
by deducing that duty from the wording of § 6 para. 2 of the
CNB  Act, which provides that the President appoints the CNB
Governor and Vice-Governors.  It must be pointed out that  §
6  para.  2  of  the amendment to the CNB Act contained  the
exact   same   formulation,  from  which  the   government's
interpretation  would  lead  to  the  conclusion  that   the
contrasignature requirement continues to apply  pursuant  to
the new wording as well.  On the other hand, however, in § 6
para. 3 as amended, the legislature newly provided that  the
government  should propose the candidates for  Governor  and
Vice-Governors.   It is inconceivable that the  legislature,
while  tying  the  President's decision to the  government's
preceding proposal, would still insist on the Prime Minister
subsequently   contrasigning  the  act  of  appointment,   a
conclusion   which  would  necessarily   follow   from   the
government interpretation of § 6 para. 2.  It is thus  clear
that the legislature conceived and conceives of § 6 para.  2
merely as an enumeration and designation of the persons  who
are members of the Bank Council.


4.   The government also made reference in its arguments  to
the  principles  of the law-based state, the principle  that
all  state authority emanates from the people and that state
authority  is  to  serve all citizens, as  well  as  to  the
conception  of  the Constitution grounded  on  the  idea  of
parliamentary   democracy.   It  argued  that   from   these
principles  one  must necessarily draw the  conclusion  that
decision-making   by  state  bodies  that   bear   political
responsibility should take priority over decision-making  by
state  bodies  that  do  not bear responsibility  for  their
decisions.   It  further concludes that, in  case  a  matter
should  be considered controversial, then preference  should
be given to the interpretation that the President’s decision
is  one pursuant to Art. 63 of the Constitution (p. 3 of the
Petition).

     As  a  general matter, these assertions can  be  agreed
with.   Nonetheless one cannot but object that,  even  in  a
democratic  law-based  state with a  parliamentary  form  of
government,  the requirement of governmental contrasignature
may be dispensed with in cases where special reasons justify
the  protection  of an institution which, according  to  the
Constitution,  should, in the main lines of its  activities,
act  independently of the government.  Since the requirement
of   contrasignature  would,  at  the  least,   enable   the
government to decide on the composition of the Bank Council.
One component of the guarantee of the CNB’s independence  is
that  the  power of appointment is in the hands  of  a  non-
partisan  President,  although after consultation,  but  not
directly  dependent  on  the agreement  of  the  government,
formed  of representatives of one or more political parties.
The  independence of the CNB is a constitutional value,  one
which  follows  both  from Article 98  of  the  Constitution
(„interventions  into its affairs shall be permissible  only
on  the  basis of statute“) and from its placement into  the
separate  Chapter Six of the Constitution, as well  as  from
Article 62, lit. k) of the Constitution and from the Act  on
the  CNB,  above  all  from  9 para.  1  of  this  Act  („in
safeguarding its main goals, the CNB shall be independent of
instructions from the government“).

     Without doubt it is possible, while keeping within  the
confines of a democratic, law-based State, to conceive  even
of  such  a formulation of the status of a central  bank  as
would  contain more elements of cooperation and coordination
with  the  government (such as is the case with  the  German
Federal Bank).  Nonetheless, in each country it is a  matter
for the constituent assembly to consider the design of these
relations  in  view of the situation and the  needs  of  its
country,  and the interpretation of the act on the  national
bank  must  also  be subordinate to such  conception  as  is
selected  for  the constitution.  At the  same  time,  in  a
constitutional  state  the canon applies  that  an  ordinary
statute  may  not be of greater force than the constitution.
Should  the constitution lay down a certain rule, exceptions
to  that rule are permitted only on the precondition that it
is  expressly permitted either by the constitution itself or
by  a subsequent constitutional act.  It is not possible, on
the  basis  of  the  provisions of an ordinary  statute,  to
reinterpret  the constitution to a form which it  manifestly
does  not  have.  The interpretive process proceeds  in  the
opposite     direction,    always    from     constitutional
documents/instruments to statutes, unless  the  constitution
itself expressly lays down an exception.

     The  Act  on  the  CNB does not introduce  any  further
presidential   appointment  power  beyond  that   which   is
contained  in  Art.  62, lit. k) of  the  Constitution.   It
merely  declares the composition of the Bank Council as  far
as  concerns  the  number and designation  of  its  members.
Since  the  government’s interpretation does  not  deny  the
President’s  exclusive authority to appoint all  members  of
the   Bank   Council,  the  recognition  of  the  claim   to
contrasignature  when  the Governor and  Vice-Governors  are
appointed would lead to the solution which would enable  the
head of State, on the one hand, to independently appoint all
members of the Bank Council and then the Prime Minister,  on
the  other  hand, to refuse his consent to the Governor  and
Vice-Governor, moreover subsequently, which in and of itself
contains  a  potential  for dysfunction  greater  than,  for
example,  any solution involving appointment on the proposal
of  the  government,  in  which case  prior  discussion  and
agreement would be imperative.  It must be borne in mind  in
this  connection that, pursuant to Art. 62, lit. k)  of  the
Constitution,  the  President of the Republic  appoints  all
members of the Bank Council, and, since pursuant to the  Act
on  the CNB the Bank Council has seven members, that he thus
appoints all seven Bank Council members, and that he is  not
restricted in this respect.  Should the appointment  of  the
Governor and Vice-Governors, to which § 6 para. 2 of the Act
on  the  CNB refers, be understood as appointments  separate
from  that  in  Art.  62, lit. k) of the Constitution,  thus
subject to Art. 63 of the Constitution, it could occur  that
the  government would refuse its consent to the  appointment
as  Governor of certain of the seven Bank Council members or
even  the appointment as Governor of a person who is  not  a
Bank  Council  member  at  all.   Since,  however,  in   the
petitions’  conception,  the  Governor  is  a  Bank  Council
member,  in  such  a  case, certain  of  the  seven  already
appointed  Bank  Council members would have to  leave  their
office,  as,  according to the Act, the Bank  Council  shall
have  seven  members.  Certainly such member  could,  if  he
himself  wished,  free up a place for  the  newly  appointed
Governor.  He could be recalled, however, only if one of the
conditions laid down therefor in § 6 para. 6 of the  Act  on
the CNB is met, which would not ordinarily occur.

     The  conception  proposed by the government  is,  thus,
unacceptable, not only in view of Art. 62, lit.  k)  of  the
Constitution,   which   does  not   provide   for   separate
appointment first as a member and then as Governor or  Vice-
Governor,  but  also  in view of the fact  that  this  is  a
solution    which   conflicts   with   the   principle    of
proportionality  of legal regulation and  the  principle  of
legal   certainty   and,   that  from   the   constitutional
perspective,  these provisions could, due to their  schizoid
components, be potentially dysfunctional.

     Evidently   the   petitioners  are   aware   of   these
circumstances,  and they therefore wish  to  maintain  their
conception that the Governor and Vice-Governors, on the  one
hand,  and the remaining members of the Bank Council on  the
other  hand, are appointed in a divergent manner,  while  at
the same time averting the obvious consequences thereof, the
appointment of the Governor and Vice-Governors in a  divided
(double)  manner, first to their office as the Governor  and
Vice-Governor and then as members of the Bank Council.  They
accomplish  this  aim,  however,  at  the  expense   of   an
interpretation  which is in conflict with the  Constitution.
In the petitioners’ view, the Governor and Vice-Governors of
the  CNB should be appointed with the contrasignature of the
Prime  Minister  (pursuant to Art. 63  para.  3,  4  of  the
Constitution)  and  that they become  members  of  the  Bank
Council  „directly on the basis of the statute  (ex  lege)“,
whereas  the  other  four members of the  Bank  Council  are
appointed by the President of the Republic pursuant to  Art.
62, lit. k) (i.e., without contrasignature).

     However,  seeing as how the Constitution provides  that
the  President of the Republic appoints all members  of  the
Bank Council without exception, moreover, in the manner laid
down  in Art. 62, lit. k), the Governor is, in fact,  not  a
member of the Bank Council directly on the basis of the  Act
on the CNB, but first and foremost and directly on the basis
of  the  Constitution itself.  Even if the Act  on  the  CNB
provides that the members of the Bank Council shall  be  the
Governor,  the Vice-Governors, and other members, this  does
not  exclude the Governor and both Vice-Governors  from  the
ambit of the President’s appointment power as defined in the
Constitution (such an exception cannot even be  made  by  an
ordinary law).

     The   truth   of  the  matter  is  that   the   present
Constitution makes no provision for membership in  the  Bank
Council which would not arise on the strength of appointment
by  the  President  pursuant to Art.  62,  lit.  k)  of  the
Constitution, but solely and directly on the basis  of  law.
It  is  precisely this conception which is unconstitutional,
the conception according to which, as the petitioners assert
in  their reply, the President of the Republic appoints,  on
the  basis of Art. 62, lit. k) only the other (four) members
of  the  Bank Council who „remain“ following the appointment
of  the Governor and Vice-Governors.  This conception is  in
conflict with the cited Art. 62, lit. k) of the Constitution
according  to  which the President of the Republic  appoint,
without  the  need for contrasignature, not only  some,  but
all, Bank Council members.

     The  petitioners interpret the appointment  power  laid
down in the Constitution as being restricted in three cases,
moreover  by  means  of the interpretation  of  an  ordinary
statute which, in the petitioners’ conception, renders  Art.
62, lit. k) inapplicable for the appointment of the Governor
and  Vice-Governors and applicable only for the „four  other
members  of the Bank Council“.  It should be added  in  this
regard  that  the  spirit  of  Art.  63.  Para.  2  of   the
Constitution is to provide for the possibility of,  and  lay
down  conditions for, the expansion of presidential  powers,
and  not their restriction.  This point is buttressed by the
wording in the text concerning the right of the President to
exercise "also" those, that is to say, further, new  powers,
which  although  not expressly stated in  the  text  of  the
Constitution, are nonetheless introduced in a statute.

     It  should  be  added  that Art.  98  para.  2  of  the
Constitution    also   speaks   against   the   petitioners’
interpretation,  since, as far as concerns  the  President’s
appointment power, it entrusts to an implementing statute on
the  CNB the regulation only of „additional details“.   Such
„additional   details“  can  be,  for   example,   statutory
provisions prescribing that the members of the Bank  Council
shall  be  the Governor, two Vice-Governors, and four  other
members.  The introduction of the requirement that the Prime
Minister  give  his  contrasignature to the  appointment  of
three  of the seven Bank Council members can in no  case  be
considered  as details, rather as considerable  restrictions
on  the  constitutional prerogatives of  the  President,  as
guaranteed  by Art. 62, lit. k) of the Constitution.   Since
Art.  98 para. 2 of the Constitution must, at the same time,
be  understood  as the constitutionally prescribe  framework
which  the implementing statute on the CNB may not overstep,
the  effort to deduce a contrasignature requirement from the
text  of  the  Act  on  the  CNB  can  only  be  branded  as
unconstitutional for it does not concern details,  rather  a
fundamental modification of constitutional dimension.

.  .  .  .  .  .

     Neither   does   the  Constitutional  Court   view   as
meritorious the objection that, prior to appointing them  to
the  offices  of Governor and Vice-Governor,  the  President
should  have recalled both members of the Bank Council  from
the  positions in the Bank Council they held  at  the  time.
This shift in offices occurred during their six-year term as
members of the Bank Council, yet none of the conditions laid
down  in § 6 para. 6 of the CNB Act were met, without  which
the  recall  procedure can in no case be  validly  employed.
The   entire   conception   of   that   Act   confirms   the
Constitution’s  aim to establish the CNB as  an  institution
independent of the government.  Should the requirements  for
recall  be  extended  also to the mentioned  internal  shift
within  the  Bank  Council,  it  would  be  subject  to  the
government’s  consent  and would, as  a  result,  become  an
element  threatening its independence from  the  government.
Therefore, as the Constitution and laws stand at present, we
cannot  but  agree with the manner in which, on 29  November
2000,  the  President appointed Zdenek Tuma, „as a presently
sitting  member of the CNB Bank Council“, as  Governor  with
the  proviso that „on the same day his current office as CNB
Vice-Governor lapses“.  The appointment of Ludek Niedermayer
as Vice-Governor, without recalling him from his office as a
Bank  Council  member, can equally be viewed as  a  solution
that  is  entirely proportionate, both constitutionally  and
legally.   Neither  in his case did a new six-year  term  of
office begin to run as a consequence of his appointment.

     Art.  62  lit., k) of the Constitution is decisive  for
the determination of this issue in the sense that it defines
the  Bank Council as an undifferentiated collective  of  all
its  members, without more precisely stating any differences
in  their status.  It was only a norm of lower legal  force,
the CNB Act, that provides that all Bank Council members are
appointed  for  a  six-year term and that  there  are  seven
members:   the  Governor,  two  Vice-Governors,  and   „four
additional members“.  If the Act provides for appointment to
office for a set period of time, i.e., six years altogether,
this  term cannot be exceeded.  During this term of  office,
the Act draws no distinction among the Bank Council members.
The  Bank  Council  is  a  collegial governing  body,  which
decides  as  a  body  and in which the  Governor  is  merely
„primus  inter  pares“.   Should a person  be  appointed  as
Governor  who  is  not  as yet a Bank Council  Member,  this
appointment  results in a new, six-year  term  beginning  to
run;  should, however, a person be elevated to the  position
of  Governor  who is already a Bank Council member  and  for
whom  a  part  of the six-year term as a member has  already
run,  his  appointment as Governor does not give rise  to  a
claim to the running of a new, some sort of „gubernatorial“,
six-year  term  of office nor to the possibility  of  formal
recall  in  the sense of § 6 para. 6 of the CNB  Act,  which
exhaustively designates the circumstances in which a  member
can be recalled from office. . . . .
     
     In  consideration of all the above-stated reasons,  the
Constitutional Court decided on the basis of § 124  para.  1
of Act No. 182/1993 Sb., on the Constitutional Court, to the
effect  that  that the President is competent to  issue  the
decision  which  he took in this matter, as  stated  in  the
petition  initiating  the  procedure  in  this  conflict  of
competence.  Accordingly, it has rejected on the merits  the
petition of the Prime Minister and the government.

Brno, 20 June 2001

JUDr. Zdenek Kessler
Chairman of the Constitutional Court Plenum


Dissenting Opinion
of Justices V. Guttler, M. Holecek, I. Janu, Z. Kessler and
J. Malenovsky

.  .  .  .  .  .
     It  is the relations between the CNB and the government
that  are decisive.  After all, in carrying out its  duties,
the  CNB  indirectly  has some impact  on  the  government's
activities.   The  Constitutionimplicitly and  the  CNB  Act
explicitly  (§§  9-11)  regulate the  forms  of  cooperation
between  the  government and the CNB.  Thus, the  government
has  legitimate interest in ensuring that its work with  the
CNB runs smoothly.

     If  follows from the constitutional idea of checks  and
balances  between constitutional organs that, without  more,
one  cannot  deduce from the government's duty to  cooperate
with  the  CNB a further duty on the part of the governmment
to  accetp  as the central partner in this cooperation  just
any  person,  thus even a person whom another constitutional
body  (the  President of of the Republic)  has  unilaterally
designated.   In  the absence of an explicit  constitutional
rule  testifying to the contrary, a relation  of  inequality
between two constitutional organs cannot be presumed.

     It  is  not  decisive  that, in his  relations  to  the
government,  the  Governor is obliged to  respect  the  Bank
Council's views and "to convey its position" as is  asserted
in  the opinion of the Court, but on the contrary, that  the
Governor  is  a  person who enters into  the  realm  of  the
government's  reserved  powers  (he  takes  part  in   their
meetings and has an advisory vote), and who would be imposed
upon  the  government  by  unilateral  decision  of  another
constitutional organ.

     From a certain point of view, the relations between the
government  and the President of the Republic are comparable
to  the  relations between States.  In the latter case,  the
subjects  are  in  principle equal in the  full  sovereignty
which  appertains to them.  In the former  case,  there  are
subjects which are in principle equal in the sense that each
of them is exercising a part of the State's sovereign powers
not  derived from, and independently of, other subjects.   A
parallel  can,  thus, be drawn between these  two  types  of
relations, and an analogia iuris can be looked for.   States
which  maintain  between themselves diplomatic  or  consular
relations (which work together in political or non-political
fields)  are  not  obliged  to  accept  as  the  head  of  a
diplomatic or consular mission (even if just one who conveys
the  attitude of the sending State) just any perons whom the
sending  State would impose upon it.  The sending  State  is
obliged to request separate agrément (exequatur), which  the
receiving  state is entitled to refuse without communicating
the reasons for its refusal.  A person which enters directly
into  the  of power of the second subject, is thus subjected
to  a special regime.  This analogia iuris testifies to  the
presumption  of the necessity for countersignature  for  the
appointment  of  the  CNB  Governor  (Vice-Governor).    The
presumption  of  equality could be overcome by  an  explicit
provision, which, however, is not in the Constitution.

.  .  .  .  .  .

     In  view  especially of the above state arguments,  but
also  in  view  of  the argument that the President  of  the
Republic is not answerable for the performance of his duties
(Art. 54 para. 3 of the Constitution), we consider that  the
President's appointment power under Art. 62 lit. k) must  be
interpreted  restrictively, thus, so as not to  include  the
power  to appoint the CNB Governor and Vice-Governor.   This
power  is  derived  from  the  CNB  Act  and  thus  requires
countersignature.

     Naturely,  the  requirement  that  the  Prime  Minister
countersign  the act appointing the CNB Governor  and  Vice-
Governors does not constitute an intervention into the CNB's
independence in the exercise of its constitutional  function
as  guaranteed by Art. 98 of the Constitution.   After  all,
the initiative for the appointment of the high officials  of
the Bank Council comes from the President, and not the Prime
Minister.   Thus,  a government that is just  entering  into
office, and having a different political orientation, is not
competent to instigate a new appointment process.

Concurring Opinion
of Justices JUDr. Pavel Hollander and JUDr. Vladimir Jurka

. . . .
     Inasmuch   as  two  interpretations  of  the  pertinent
(concrete)  provisions  of the Constitution  vie  with  each
other,  each with its own ration and nether of which can  be
considered  as  contra constitutionem, clearly  then  it  is
appropriate  to  lean  toward that interpretation  which  is
supported  by  constitutional practice, in other  words,  to
respect  a  constitutional  tradition  that  has  manifestly
already been established in this way.
     The  Constitutional Court decided this case  eight  and
one  half years after the Constitution and the CNB Act  came
into  effect.   In this connection, one cannot overlook  the
fact  that  in all cases up till now the Governor  has  been
appointed  by the President without contra-signature,  which
was  also the case (with two exceptions) for the appointment
of  all Vice-Governors.  Further, one cannot ignore the fact
that,  in  none of these instances did either the government
(or the Prime Minister) submit to the Constitutional Court a
petition  initiating  a  conflict of  competence  proceeding
against   the  President  concerning  the  extent   of   his
competence.  Finally, neither can we disregard the fact that
the  sole  reason for changing the rules for the appointment
of  the CNB Governor and Vice-Governors so as to make it  on
the proposal of the government, (as contained in the amended
CNB Act and the amendments to the Constitution, submitted on
17  September 1999 to the Assembly of Deputies of the  Czech
Parliament  by  a  group of Deputies -  Ivan  Langer,  Petra
Buzková, Eva Dundáèková, Zdeòek Jièínský, Jitka Kupèová, and
Jan  Zahradil) was the conviction, generally then shared  by
the   Deputies  voting  on  the  amended  CNB  Act  and  the
amendments  to  the Constitution, that such contra-signature
was not required.
     The  issue  which  we  considered fundamental  is  that
whether,   in  a  system  of  written  constitutional   law,
constitutional customs praeter constitutionem can come  into
being  and,  if  so, which conditions must be  fulfilled  in
order to declare that they exist.
     The Constitutional Court has already spoken on an issue
related  to the given problem in its judgment Pl. 33/97,  in
which  it  declared  the following:  "A modern,  democratic,
written  constitution  is a social contract,  by  which  the
people,   representing   the  constituent   power   (pouvoir
constituant), constitute themselves in one political (state)
body and enshrine the relationship of the individual to  the
whole  and  the  system of state institutions.   A  document
institutionalizing   the  set  of  fundamental,   generally-
accepted values and molding the mechanism and process of the
formation of legitimate power decisions cannot exist out  of
the  context  of  publicly-accepted values,  conceptions  of
justice, as well as conceptions of meaning, purpose, and the
manner of functioning of democratic institutions.  In  other
words,  it cannot function without a minimum consensus  with
respect   to   values  and  institutions.   The   conclusion
resulting therefrom for the field of law is that, even in  a
system  of  enacted law, basic legal principles and  customs
are  also  sources of general, as well as of constitutional,
law.  .  .  .The acceptance of further sources of law  apart
from  written law (in particular, general principles of law)
raises  the issue of recognizing their existence.  In  other
words, it raises the issue whether their formulation  is  an
arbitrary matter or whether it is possible to lay down means
of  proceeding  for their formulation which,  to  a  certain
degree, can be objective.  . . .   A typical example of  the
definition of unwritten legal rules of human conduct can  be
found  in  customary law.  In order for a  legal  custom  to
arise, it is required that there be a general conviction  of
the  need  to  observe the general rule of  conduct  (opinio
necessitatis)  and,  in addition, its  continuance  over  an
extended period (usus longaevus, resp. longa consuetudo)."
     We  are of the view that the inception of constitutonal
customs praeter constitutionem is a regular and natural part
of  the  functioning  of  democratic constitutional  systems
within  the  European  continental legal  culture,  that  is
within  the  tradition of written constitutions and  written
law.   This  phenomena  has  also  been  reflected  in   the
jurisprudence of constitutional courts.  An example that may
be  cited  in  this  regard is the judgment  of  the  German
Federal Constitutional Court (BverfGE, 72, 189) in which the
Court  accepted the activism of the joint committee  of  the
Bundestag and the Bundesrat praeter constitutionem, moreover
acknowledging its status as a constitutional custom.
     In the matter under consideration, it must be confirmed
whether   the  constitutive  elements  of  a  constitutional
custom, which are analogous to the constitutive elements  of
general legal customs, have been met.  We consider that  the
general  conviction  (opinio  necessitatis)  concerning  the
President’s  authority to appoint the CNB  Governor  without
constra-signature,  can  be  demonstrated  in  part  by  the
absence,  in  preceeding instances of appointments,  of  any
attempt  on  the part of the government to bring before  the
Constitutional  Court a conflict of competence  against  the
President,  and  in  part  by the intention  motivating  the
adoption  of Act No. 442/2000 Sb., amending Act  No.  6/1993
Sb.,  (similarly the intention behind the amendment  to  the
Constitution  submitted to the Assembly of Deputies  of  the
Czech  Parliament on 17 September 1999 . . . .  ).   Sec.  6
para. 3 of the amended CNB Act limited the President’s power
of  appointing  the  CNB Governor and  Vice-Governors  which
demonstrates  that  the act necessarily proceeded  from  the
assumption  that the President's exercise of this  power  is
not subject to contra-signature.
     In  our  view,  long-term acceptance of a spontaneously
formed   rule  (custom),  i.e.,  the  condition   of   longa
consuetudo, is met in this case, not only due to the  length
of time the existing practice has persisted, but also due to
the  frequency with which appointments were made.   The  two
exceptions  (the two appointments of Vice-Governors)  cannot
change  this  reality.   The  fact  that  these  constituted
exceptions  to  the  established practice  demonstrates  the
general  conviction reflected in the aim of  the  amendments
adopted to the CNB Act, No. 442/2000 Sb.
     Finally,  two  important matters must be  mentioned  in
connection  with  the  acknowledgement  that  constitutional
customs  can  also  be  accorded the status  of  sources  of
constitutional law.  The first is the immense responsibility
of  all  constitutional bodies for their application of  the
constitution,  the necessity for them to  be  aware  of  the
consequences of their conduct, being cognizant not merely of
the  context  in  which  a matter is decided  at  any  given
moment,  but also in view of the formation of the  country’s
constitutional  system.   The  second  is  the  boundary  of
acceptability  of  constitutional  customs,  which   is   in
principle laid down by Article 9.2 of the Constitution.   In
that respect, it cannot be said in the case at hand that the
formation  of  a  constitutional custom  in  the  course  of
appointment  of the CNB Governor and Vice-Governors  affects
any  of the essential requirements of a constitutional  law-
based state.
     For  the  given  reasons, we consider that,  since  the
Constitution came into effect, in constitutional practice  a
constitutional  custom has developed whereby  the  President
appoints  the CNB Governor and Vice-Governor’s  without  the
contra-signature  of  either  the  Prime  Minister  or   his
responsible  minister.   It is our  opinion  that,  at  this
point, changes to the existing constitutional situation  can
be effected solely by decision of the Constitutent Assembly,
that is, by amendment to the Constitution.
.  .  .  .  .