Pl. ÚS 24/01

The  establishment  of  the  Electoral  Committee  consistently
followed the principle of proportional representation,  by  the
application of which the Chamber of Deputies itself is  formed.
It can then justifiably be expected from this fact that, within
the bounds of its competence, even the Electoral Committee when
electing  members  of  the Council of  Czech  Television,  will
decide in a manner which respects the distribution of political
forces   in   the  lead  of  the  Chamber  of  Deputies.    The
establishment of the Electoral Committee (the introduction of §
46a  into the Standing Orders of the Chamber of Deputies by Act
No.  39/2001 Coll.) is then evidently motivated exactly by  the
intention to select an appropriate number of candidates of  the
Council  of Czech Television in such a way that in the election
of  the  members themselves of the Council of Czech Television,
the  Chamber of Deputies had sufficient room for discussion and
careful consideration, relating to individual candidates, which
alone   can  lead  to  rational  conclusions  justifying  their
election.   In  view  of the foregoing, then,  there  is  in  a
certain  sense  what is termed a „pre-selection“ of  candidates
for  the  Council of Czech Television, but one made by  a  body
which has been created by the Chamber of Deputies in the manner
described  above.  This manner cannot, in its final outcome  be
designated  as unconstitutional, not even from the  perspective
of  the  objected  Art. 21 para. 1 of the Charter,  which  when
respected even in the smallest degree is certainly an important
principle, that „Citizens have the right to participate in  the
administration of public affairs either directly or through the
free  election  of  their representatives.“   In  view  of  the
foregoing, therefore, the Constitutional Court has come to  the
conclusion  that  the  manner  of  constituting  the  electoral
commission    does    not   bear   the    characteristics    of
unconstitutionality so that it merely remains to  consider  the
objections raised in the indicated respects as unfounded.
    
     In view of the foregoing and in consequence of the respect
for   the  principle  of  proportional  representation  in  the
constitution of the Electoral Committee, one cannot come to the
conclusion  that  Art.  21  para. 4 of  the  Charter  has  been
violated nor that citizens have been denied access, on an equal
basis,  to any elective and other public office (membership  in
the  Council  of  Czech Television).  Once  again  the  evident
intention  of the Chamber of Deputies should be reiterated,  to
form  its  body (while respecting the principle of proportional
representation),  which evidently created  the  conditions  for
making more effective the Chamber of Deputies‘ activities  when
electing  members  of  the Council of  Czech  Television.   The
maintenance of equal conditions for citizens in terms of access
to  any  elective or other public office can be found in  their
equal  opportunity, by proposing qualified persons, to  compete
for  the  office of member of the Council of Czech  Television,
and  that  from the perspective of the existence and competence
of  the  Electoral  Committee established  by  the  Chamber  of
Deputies   on  the  basis  of  the  principle  of  proportional
representation.


On 30 April 2002, the Plenum of the Constitutional Court in the
matter  of  the petition of a group of Senators  of  the  Czech
Parliament proposing the annulment of § 46a of Act No.  90/1995
Coll., on the Standing Orders of the Chamber of Deputies of the
Parliament  of  the  Czech Republic, as  amended  by  Acts  No.
47/2000 Coll. and No. č. 39/2001 Coll., decided
                               
                          as follows:
                               
           The petition is rejected on the merits .
                               
                               
                           Reasoning

                              I.

On  14  August  2001,  the Constitutional  Court  received  the
petition  of  a group of 23 Senators of the Parliament  of  the
Czech  Republic  proposing the annulment of § 46a  of  Act  No.
90/1995  Coll.,  on  the  Standing Orders  of  the  Chamber  of
Deputies, as subsequently amended, with the reasoning that,  in
their view the provision in question is in conflict with Art. 4
para.  3  and  Art.  21  paras. 1  and  4  of  the  Charter  of
Fundamental  Rights and Basic Freedoms (hereinafter "Charter").
The   petition  presents  the  following  arguments:   Act  No.
483/1991 Coll., on Czech Television (as subsequently amended by
Acts No. 36/1993 Coll., No. 253/1994 Coll., No. 301/1995 Coll.,
and  No. 39/2001, hereinafter "Act on Czech Television ")  lays
down  the  conditions,  as  well as  the  procedures,  for  the
election  of the Council of Czech Television, that is,  a  body
which  is  elected  by citizens (in fact,  by  the  Chamber  of
Deputies  of  the  Parliament of the Czech  Republic)  for  the
purpose  of  supervising the activities  of  Czech  Television.
Pursuant  to  §  4  para.  2  of the Act  on  Czech  Television
candidates are elected from among citizens on the basis of  the
proposals   of   organizations  and  associations  representing
cultural,  regional, social, trade-union, employer,  religious,
educational,  scientific,  ecological,  and  ethnic  interests.
Proposals shall be submitted to the Chamber of Deputies of  the
Parliament  of  the  Czech  Republic (hereinafter  "Chamber  of
Deputies"),  which according to the Act on Czech Television  is
authorized  to  elect  and  recall individual  members  of  the
Council  of Czech Television.  Everybody who meets the criteria
in  the Act on Czech Television can be elected a member of  the
Council  of  Czech Television, that is, anyone  who  has  legal
capacity,  has  permanent residence in the Czech Republic,  and
has  a faultless character, as is laid down in § 4 para.  3  of
the  Act on Czech Television.  Part Three, Article IV, point  2
of  Act  No.  39/2001  Coll., which amends  the  Act  on  Czech
Television,  as amended by subsequent enactments,  and  on  the
amendment  to other acts, also amended (supplemented)  Act  No.
90/1995  Coll.,  on  the  Standing Orders  of  the  Chamber  of
Deputies,  as amended by Act. No. 47/2000 Coll., to the  effect
that  an  Electoral Committee shall be created for the purposes
of  the election of members of the Council of Czech Television.
In  harmony  with § 46a of the Act on the Standing Orders,  the
Electoral Committee of the Chamber of Deputies is then  obliged
to select, from among the candidates proposed for membership in
the  Council  of Czech Television, three times  the  designated
number  of members in the Council of Czech Television,  on  the
assumption that the number of candidates proposed by authorized
organizations and associations, meeting the requirements  under
the  Act  on Czech Television, is more than three times  higher
than  the  number  that should be elected  as  members  of  the
Council   of   Czech  Television.   The  group   of   Senators,
petitioners,  found that the current version of  the  contested
provisions  of § 46a of the Act on the Standing Orders  are  in
conflict with:
  
  a.   with  Art.  21  para.  1 of the  Charter,  which  reads:
  „Citizens   have   the   right   to   participate   in    the
  administration of public affairs either directly  or  through
  the free election of their representatives.“
  b.   with  Art.  21  para.  4 of the  Charter,  which  reads:
  „Citizens  shall  have  access, on an  equal  basis,  to  any
  elective and other public office.“
  c.   with  Art. 4 para. 3 of the Charter, which reads:   „Any
  statutory  limitation upon the fundamental rights  and  basic
  freedoms  must apply in the same way to all cases which  meet
  the specified conditions.“

    In the petitioners' view, the existing text of § 46a of the
Act  on  the Standing Orders unjustifiably restricts  citizens'
inalienable  right  to  participate in  the  administration  of
public  affairs through their representatives,  moreover  in  a
manner  which  enjoys no support (evidently  in  constitutional
acts  or  statutes,  as the petitioners do  not  present  their
thesis  in more precise details).  As a result of the  creation
of  an Electoral Committee, to which was entrusted powers which
the  Act on Czech Television otherwise entrusts to all Deputies
of the Chamber of Deputies, all Deputies who are not members of
the  Electoral Committee are deprived of the right to vote (and
even,  by  their  vote,  to  strive for  re-election  by  their
constituents),  as  a  result of which so  are  as  well  those
citizens  who  are  represented by the  Deputies  who  are  not
members of the Electoral Committee.  In this way, the right  of
these  citizens to participate in the administration of  public
affairs  (in  the  administration of Czech  Television  to  the
extent provided for in the Act on Czech Television, through the
election  of  member of the Council of Czech Television).   The
current  text  of  §  46a  of the Act on  the  Standing  Orders
unjustifiably  restricts citizens' inalienable  right  to  have
access  to  any  elective or other public  office  under  equal
conditions.  No rules (criteria) exist governing the activities
of  this  Electoral  Committee, consisting  in  the  manner  of
assessing  submitted proposals (for candidates for election  to
the  Council of Czech Television) and leading to the  selection
of  only  such  number  of candidates ".  .  .  fulfilling  the
prerequisites  according to this Statute . . ."  in  an  amount
corresponding  to  three times the number  of  members  of  the
Council  of  Czech  Television who should  be  elected  to  the
Council by the Chamber of Deputies.  In this way, a substantial
portion  of  the  candidates are prevented  from  standing  for
election  before that body which is designated by law for  that
purpose, namely the entire Chamber of Deputies, and thereby the
right  to  have  access to any elective or other public  office
under equal conditions.  Although the Electoral Committee  has,
in  order  to implement the contested provisions in  conformity
with § 46a para. 3 of the Act on the Standing Orders, adopted a
resolution detailing the manner in which to proceed (Resolution
No.  1616),  nonetheless  by  adopting  Resolution  No.  8,  it
exceeded  the  bounds  of  its  statutory  empowerment  and  it
restricted  the  right  of  candidates  to  appear  before  the
Electoral Committee of the Chamber (and it alone) to a  certain
portion  of  candidates from among those who otherwise  fulfill
the  preconditions for the election as a member of the  Council
of  Czech  Television.  Moreover, that part of para. 2  of  the
current  text  of the contested § 46a which reads  “from  among
those candidates fulfilling the requirements according to  this
Act,  select for election by the Chamber of Deputies candidates
in an amount corresponding to three times the number of members
who  should be elected to the Council,” is confusing as  it  is
not  unequivocally clear which act is meant  by the formulation
“this  Act”, when the Act on Czech Television is not  cited  in
the  Act  on  the  Standing Orders at all  and,  in  the  given
context, the legislators could not have had in mind the Act  on
the Standing Orders.  The contested provision of the Act on the
Standing  Orders  is  in conflict with the  right  of  citizens
(thus,  candidates  for  membership in  the  Council  of  Czech
Television, as well) that any restrictions on the basic rights,
hence  also the right to have access to any elective  or  other
public office under equal conditions, should apply the same  to
all   cases  which  fulfill  the  prescribed  conditions.   The
disposition  of the contested provision itself rests  upon  the
hypothesis, “. . .  candidates fulfilling the requirements .  .
.”,  however then the restriction on becoming a subject of  the
election applies only to a portion of the candidates (to  those
designated by the Electoral Committee, without the addition  of
any  criteria, hence arbitrarily).  If then the possibility  to
be  “permitted to participate” in the election to membership in
the Council of Czech Television should become a mere object  of
agreement  among  political parties, bargaining,  and  possibly
also   compromises,  moreover  only  among   parties   in   the
Parliament,  then the relevant provision of the  Act  on  Czech
Television  (§  4  para. 2) concerning  who  is  authorized  to
propose  candidates  for membership of the  Council  (precisely
persons  who  are outside of political parties, hence  interest
groups,  professional organizations, and citizens associations)
would  be misguided to the point of being void.  However,  even
from the standpoint of this substantive argument, the contested
provision itself is misguided to the point of being void.  This
conclusion  is  otherwise  supported  by  the  fact  that   the
legislature prescribed a group of subjects for the election  by
a  substantive legal norm (the Act on Czech Television) and the
manner of electing is governed by a procedural norm.

     The petitioners therefore request the Constitutional Court
to  annul the contested part of the statute due to its conflict
with Art. 4 para. 3, and Art. 21 paras. 1 and 4 of the Charter.

                               
                              II.

For its consideration of the petition, the Constitutional Court
requested the views of the Chamber of Deputies and the Senate.
…..
                               
                             III.

Pursuant  to  §  68 para. 2 of Act No. 182/1993 Coll.,  on  the
Constitutional  Court,  as  amended, the  Constitutional  Court
reviewed  whether  the  contested act was  adopted  within  the
bounds  of the powers laid down in the Constitution and in  the
constitutionally  prescribed manner.  The Constitutional  Court
concluded that the designated act was adopted and issued within
the bounds of the constitutionally prescribed powers and in the
constitutionally prescribed manner.


                              IV.

The  manner  of  electing  members  of  the  Council  of  Czech
Television  was newly revised by Act No. 39/2001  Coll.,  which
amends Act No. 483/1991 Coll., on Czech Television, as amended,
and on amendments to certain other acts.

     Pursuant  to § 4 para. 1, third sentence, of  the  Act  on
Czech  Television,  as amended by Act No. 39/2001  Coll.,  “The
Chamber  of  Deputies  of  the  Czech  Parliament  (hereinafter
“Chamber  of  Deputies”)  elects and  recalls  members  of  the
Council such that significant regional, political, social,  and
cultural schools of thought are represented on it.”
    
     Pursuant to § 4 para. 2 of the Act on Czech Television, as
amended by Act No. 39/2001 Coll., “Proposals for candidates  to
be  members of the Council shall be submitted to the Chamber of
Deputies   by   organizations  and  associations   representing
cultural,  regional, social, trade-union, employer,  religious,
educational,  ecological, and ethnic interests.  Proposals  may
be  submitted  within 15 days of the day the  request  for  the
submission  of  proposals is made public by the Chairperson  of
the  Chamber of Deputies in the manner laid down by  resolution
of the Chamber of Deputies.”

    Provision of § 46a of the Act on the Standing Orders of the
Chamber of Deputies, as amended by Act No. 39/2001, provides:
  1)  For the purpose of election of members of the Council  of
Czech  Television  (hereinafter  "Council"),  the  Chamber   of
Deputies shall establish an Electoral Committee, the members of
which shall be elected from among Deputies on the basis of  the
principle of proportional representation.
  2)  Should  the  number of candidates proposed by  authorized
organizations and associations exceed by more than three  times
the number of members who should be elected to the Council, the
Electoral Committee shall consider the submitted proposals and,
from   among   those  candidates  fulfilling  the  requirements
according  to this Act, select for election by the  Chamber  of
Deputies  candidates in an amount corresponding to three  times
the number of members who should be elected to the Council.  If
the  number  of candidates proposed by authorized organizations
and  associations does not exceed by more than three times  the
members  who  should be elected to the Council,  the  Electoral
Committee should submit to the Chamber of Deputies for election
all  proposed candidates who fulfill the requirements according
to this Act.
  3)   Details on the means of proceeding shall be laid down in
a  resolution of the Chamber of Deputies, which shall designate
the  extent  to which the electoral code (Annex  No.  2)  shall
apply for the purposes of the procedure under paras. 1 & 2.

    By its resolution No. 1492 from the 34th meeting of 2 March
2001, the Chamber of Deputies, pursuant to § 46a para. 3 of the
Act  on the Standing Orders, laid down more detailed procedures
for  the Electoral Committee to follow in selecting candidates.
In that resolution, it was provided that:
   1. the call to submit proposed candidates for membership  in
the  Council of Czech Television by the statutorily  prescribed
15-day  deadline  (§ 4 para. 2 of the Act on Czech  Television)
shall be sent by the Chairperson of the Chamber of Deputies for
publication by the Czech Press Office;
   2.  in  conformity  with § 4 and § 5 of  the  Act  on  Czech
Television,  authorized  organizations and  associations  shall
submit  proposals for candidates as members of the  Council  of
Czech  Television to the Electoral Committee of the Chamber  of
Deputies by the statutorily defined deadline;
    3.   the  Electoral  Committee  shall  assess  whether  the
candidates  as members of the Council of Czech Television  were
submitted  by  authorized organizations  and  associations  and
whether  the proposed candidates fulfill the requirements  laid
down in the cited act;
   4.  the Electoral Committee shall submit the candidates  for
the Council of Czech Television to the Electoral Commission  of
the  Chamber  of Deputies and shall simultaneously  notify  the
Chairperson of the Chamber of Deputies of this fact.   Art.  6,
point  2  of  the  Annex to the Chamber of  Deputies’  Standing
Orders shall not apply.  Other provisions of Annex No. 2 to the
Chamber  of Deputies’ Standing Orders do apply to the  election
of the Council of Czech Television.  The mentioned Annex No.  2
is  the  Electoral Orders for elections held by the Chamber  of
Deputies, whereas, pursuant to Art. 6 point 2, proposals  shall
be  submitted  to the Electoral Commission of  the  Chamber  of
Deputies ten days before the election at the latest.

      Further,  the  following  resolutions  of  the  Electoral
Committee have been submitted to the Constitutional Court:
  - resolution no. 6 of the 2nd meeting of 5 April 2001,
  - resolution no. 8 of the 3rd meeting of 24 April 2001
  - resolution no. 11 of the 4th meeting of 15 May 2001
  - resolution no. 16 of the 5th meeting of 22 May 2001, and
  - resolution no. 21 of the 5th meeting of 24 May 2001.

     It  results from these materials that, in the sense of the
above-mentioned  resolutions of the Chamber  of  Deputies,  the
Electoral  Committee reviewed exclusively  the  fulfillment  of
conditions  and  requirements laid down by  the  Act  on  Czech
Television.   Above  all it ascertained whether  the  proposals
were  submitted by organizations and associations such  as  are
laid  down  in  §  4  para. 2 of the Act on  Czech  Television.
Toward  this end, on the basis of Resolution No. 6,  it  called
upon  these  subjects to show, in an appropriate  manner,  that
they  meet  the prescribed conditions for submitting petitions.
Then,  by its Resolution No. 11, it excluded from the selection
process  those  candidates who were proposed  by  subjects  who
either did not meet the conditions under § 4 para. 2 of the Act
on  Czech  Television, or by subjects who did  not  demonstrate
their  authorization to submit proposals as prescribed  by  the
cited  provisions.   It  was further seen  from  the  submitted
materials  that  the Electoral Committee reviewed  whether  the
proposed  candidates met the requirements  prescribed  in  §  4
para. 3 of the Act on Czech Television.  Resolution No. 6  gave
the  Chairperson of the Electoral Committee the duty to request
from  the  proposers  documents  showing  that  their  proposed
candidates  meet  the  prescribed requirements.   The  required
documents  were  precisely defined in the same resolution.   It
followed   unambiguously  from  further  resolutions   of   the
Electoral  Committee that, from the total  number  of  proposed
candidates,  only  those were excluded  who  were  proposed  by
unauthorized  subjects  or who did not fulfill  the  prescribed
requirements.   Then  the  Electoral  Committee  selected   the
designated  number of candidates (triple the number of  members
of  the  Council of Czech Television) by secret ballot pursuant
to  the  rules  resulting from Annex No. 2 of the  Act  on  the
Standing Orders and from Resolution No. 8.
                               
                               
                              V.

Pursuant  to  44  para.  2 of Act No. 182/1993  Coll.,  on  the
Constitutional Court, the Constitutional Court  may,  with  the
consent  of  the  parties, dispense with  an  oral  hearing  if
further   clarification  of  the  matter  cannot  be   expected
therefrom.   In  view  of  the fact that  the  parties  to  the
proceeding  gave their consent (the petitioner by a  submission
of  20  March 2002, the Chamber of Deputies by a submission  on
the  same  day, and the Senate by its submission  of  19  March
2002)  and of the fact that the Constitutional Court is of  the
opinion  that  further clarification of the  matter  cannot  be
expected  from  an oral hearing, an oral hearing was  dispensed
with in this case.

     There  are  two objections at the heart of  the  group  of
Senators‘  petition proposing the annulment  of  the  indicated
provisions  of  the Act on the Standing Orders:   an  objection
relating to the constitution of the Electoral Committee  itself
and  an  objection relating to the restriction on the right  of
citizens to have access, on an equal basis, to any elective  or
other public office.
    
     The  essence  of the objection directed against  the  very
constitution  of  the  Electoral  Committee  consists  in   the
petitioners‘  conviction  that,  in  the  formation   of   this
committee, every Deputy who was not included in this  committee
was  excluded  from  a  share  in the  decision-making  in  the
election  of  members to the Council of Czech  Television.   In
consequence  of  this  exclusion from the Electoral  Committee,
then,  the Deputies not included were unable to represent their
voters in this area, in consequence of which the right of their
voters  to participate in the administration of public  affairs
is restricted.
    
    In considering this objection, the Constitutional Court was
inclined  to  accept  the views expressed  in  the  Chamber  of
Deputies'  pleading, according to which the Act  regulates  the
creation of an Electoral Committee and its activities with  the
proviso that the detailed procedures of the Committee are  left
to  be  regulated by a resolution of the Chamber  of  Deputies.
This  rule  is  entirely in conformity with the  constitutional
order  of  the  Czech  Republic as  the  Constitution  directly
provides  that both chambers of Parliament shall have authority
to  create committees and commissions as their internal bodies,
without  the Constitution designating which specific committees
should be created.  If the individual chambers can create their
own  committees by internal resolution, then this is an example
of  the power of a parliamentary chamber to create its internal
bodies   in  an  autonomous  manner.   In  the  view   of   the
Constitutional  Court, this corresponds  to  the  principle  of
representative  democracy, for it applies that  the  Parliament
which  resulted from free elections adopts, as  the  bearer  of
power  within  the bounds of its competence as defined  by  the
Constitution, a decision which expresses the will of the people
in  the  sense of Article 2 para. 1 of the Constitution of  the
Czech  Republic.   Parliament's  independence  as  regards  its
competence,  as  well as its internal organizational  autonomy,
are  thus  indisputable characteristics of a body  representing
the sovereign will of the people.
    
     It follows from the general definition of the proportional
representation   principle  that  this  system   of   political
representation that the proportion of assigned  seats  more  or
less  corresponds to the proportion of votes received.   It  is
essential for the application of this principle that the  basic
conditions  be  formed in relatively stabilized  electoral  and
party  relations.   According to general  theory,  among  these
basic conditions must be included above all a settled electoral
mechanism  which has been applied in at least three consecutive
elections.  It is further presupposed that the party system is,
to   a   significant  degree,   permanent  and  is  not  overly
fragmented,  so  that it is possible to determine  the  minimal
measurable  size of the "smallest party".  Theoretical  opinion
itself  has  reached  the conclusion (for  example,  Klíma  M.,
Proportional  "disproportional" electoral system following  the
amendment  to  the  Act on Elections to the Parliament  of  the
Czech Republic, Political Science Magazine, No. 4/2000, p. 349)
that   stabilized   relations  for  the  application   of   the
proportional representation principle have been established  in
the  Czech  Republic,  a  view which the  Constitutional  Court
shares.
    
    In the Constitutional Court's view, from what has been said
it can be deduced that if sufficiently stabilized preconditions
for  the application of the proportional representation  system
have  been  formed during the constitution of  the  Chamber  of
Deputies as a whole, then naturally there can be no doubt that,
in   constituting  the  internal  bodies  of  that  chamber  of
Parliament,  the  proportional representation  principle  is  a
constitutionally  conforming  foundation.   The  Act   on   the
Standing Orders of the Chamber of Deputies then lays down  more
detailed  provisions  as to the manner in which  Deputies  take
part  in  the  Chamber  of  Deputies'  work.   Then,  with  the
exception laid down in § 33 para. 1 of the cited law,  Deputies
can  be  a  member  of  no more than two committees.   And,  as
follows  from  § 46a para. 1 of the cited Act, the proportional
representation  principle is a basic rule for the  constitution
of  the Electoral Committee, which means that the proportion of
Deputies   to   members  of  the  Electoral  Committee   should
correspond  to  the  proportion of  seats  in  the  Chamber  of
Deputies  itself and thus even the proportion of votes obtained
by  political  parties  represented  in  this  chamber  of  the
Parliament.

    In other words it can be said that the establishment of the
Electoral  Committee  consistently followed  the  principle  of
proportional  representation, by the application of  which  the
Chamber  of Deputies itself is formed.  It can then justifiably
be  expected  from  this fact that, within the  bounds  of  its
competence, even the Electoral Committee when electing  members
of  the  Council of Czech Television, will decide in  a  manner
which respects the distribution of political forces in the lead
of the Chamber of Deputies.  The establishment of the Electoral
Committee  (the introduction of § 46a into the Standing  Orders
of  the  Chamber of Deputies by Act No. 39/2001 Coll.) is  then
evidently  motivated  exactly by the  intention  to  select  an
appropriate  number  of  candidates of  the  Council  of  Czech
Television  in such a way that in the election of  the  members
themselves  of the Council of Czech Television, the Chamber  of
Deputies  had  sufficient  room  for  discussion  and   careful
consideration, relating to individual candidates,  which  alone
can lead to rational conclusions justifying their election.  In
view  of the foregoing, then, there is in a certain sense  what
is  termed  a „pre-selection“ of candidates for the Council  of
Czech Television, but one made by a body which has been created
by the Chamber of Deputies in the manner described above.  This
manner   cannot,  in  its  final  outcome  be   designated   as
unconstitutional, not even from the perspective of the objected
Art.21 para. 1 of the Charter, which when respected even in the
smallest  degree  is  certainly an  important  principle,  that
„Citizens  have  the right to participate in the administration
of  public affairs either directly or through the free election
of   their   representatives.“.   In  view  of  the  foregoing,
therefore,  the Constitutional Court has come to the conclusion
that  the manner of constituting the electoral commission  does
not bears the characteristics of unconstitutionality so that it
merely  remains  to  consider  the  objections  raised  in  the
indicated respects as unfounded.

    The essence of the objection relating to the restriction on
citizens'  right  to  have access, on an equal  basis,  to  any
elective  and  other public office consists in the petitioners'
conviction  that the regulation at issue does not  contain  any
rule  (criteria) for the Electoral Committee's actions such  as
would  consist  in  a designation of the manner  in  which  the
submitted  nominations  are  to be  judged  and  leading  to  a
selection  of  only  such  number  of  candidates  (who   would
otherwise meet the requirements of the Act on Czech Television)
which  corresponds  to  triple the number  of  members  of  the
Council  of  Czech Television.  In the petitioners'  view,  the
application   of  this  provision  results  in   preventing   a
considerable  part  of the nominated candidates  to  stand  for
election before the body that is designated by law to carry out
this  task,  that is the Chamber of Deputies, thus  in  denying
them  access,  on  an  equal basis, to any elective  and  other
public office.
    
     Art.  21 para. 4 of the Charter provides:  „Citizens shall
have  access,  on  an  equal basis, to any elective  and  other
public office.“  This right is closely connected with the power
to participate in the administration of public affairs.  Such a
right  is universal, is held by all citizens without regard  to
gender,  nationality,  religion,  membership  in  any  sort  of
political  group, or any other grounds.  By the  administration
of  public affairs is meant participation in the political life
of  the State, the administration of the State, as well as  the
administration  of  public  issues,  and  also  represents  the
opportunity  to  compete for and hold any  sort  of  office  in
public  life without any sort of discrimination.  The mentioned
provisions of the Charter correspond to Art. 25, let. c) of the
International  Covenant  on Civil and Political  Rights,  which
provides  that  every  citizen shall have  the  right  and  the
opportunity, without any of the distinctions mentioned in  Art.
2  and  without unreasonable restrictions, to have  access,  on
general  terms of equality, to public service in  his  country.
Access,  on an equal basis, to public service in one's  country
means  that the eligibility requirements cannot exclude anybody
from such service on the grounds laid down either in Art. 3  of
the  Charter  or in Art. 2 of the Covenant.  On an equal  basis
also  means  that,  as  far  as  access  to  public  office  is
concerned, the legal enactments of whatever legal force and the
practice  of  state  bodies  cannot  give  preference   to   or
discriminate  in  favor of some groups of citizens  over  other
groups.
    
     As was already stated, the sole criteria which the Act  on
Czech  Television lays down for the election by the Chamber  of
Deputies  to  the  Council  of Czech Television  are  that  the
Council  should  be  elected in  such  a  way  "  .  .  .  that
significant  regional, political, social, and cultural  schools
of thought will be represented on it (§ 4 para. 1 of the Act on
Czech Television), where nomination of candidates are submitted
to  the  Chamber of Deputies by organizations and  associations
representing cultural, regional, social, trade union, employer,
religious,  educational,  scholarly, ecological,  and  national
(ethnic  group)  interests (§ 4 para. 2 of  the  Act  on  Czech
Television).  The eligibility requirements for being elected  a
member of the Council of Czech Television are laid down in §  4
para.  3  of  the  Act on Czech Television  and  include  legal
capacity, permanent residence in the Czech Republic,  and  good
character.
    
     The task of ensuring the stated composition of the Council
of  Czech Television is assigned to the Chamber of Deputies  by
the  Act on Czech Television, but the provision at issue, §  46
para. 2 of the Act on the Standing Orders, is a norm regulating
the  procedure  by which the Chamber of Deputies  fulfills  its
assigned  task.  The Constitutional Court does not view  it  as
unconstitutional that the rules governing the  constitution  of
the Council of Czech Television are divided, as the petitioners
state,  between a legal enactment of a substantive  nature  and
one of a procedural nature, since rules of a substantive nature
-  those  concerning  the  Council  of  Czech  Television,  its
formation, powers, etc. - must be regulated by an enactment  of
a substantive nature (the Act on Czech Television), in contrast
to  which  the substance of the manner in which the Chamber  of
Deputies  goes  about electing the members of  the  Council  of
Czech  Television must be regulated unequivocally in  that  act
which  governs  the  proceedings of the  Chamber  of  Deputies,
therefore  the  Act on the Standing Orders.  If  in  connection
with  the  first objection concerning the constitution  of  the
Electoral   Committee,  the  Constitutional  Court   drew   the
conclusion that the Electoral Committee was established by  the
Chamber of Deputies in a constitutionally conforming manner and
was   entrusted  with  the  authority  to  participate  in  the
elections  of members to the Council of Czech Television,  then
the  actions of the Electoral Committee in electing members  of
the  Council  of  Czech  Television can be  considered  as  the
actions of the Chamber of Deputies itself.
    
     According  to § 32 of the Act on the Standing Orders,  the
Electoral Committee is one of the committees of the Chamber  of
Deputies',  this is to say, it is a body duly provided  for  by
law with defined competencies and proceedings.  The Committee's
activities are governed by Part Six, §§ 32 - 46a of the Act  on
the  Standing  Orders.  It can be concluded unambiguously  from
the rules concerning its proceedings, such as are laid down  in
§  36 and following of the Act on the Standing Orders, that the
Committee's work is governed by the standard rules  that  apply
for  the  proceedings  of  a democratically  established  body.
Members of the Committee are authorized to participate  in  its
meetings, to propose additions or modifications to the  agenda,
make  initiatives, proposals, and comments.  All such proposals
are  then decided upon in the manner precisely regulated by the
Act  on the Standing Orders.  Committees are responsible to the
Chamber of Deputies for all of their activities.
    
     As can be deduced from the documents mentioned in part IV,
in  eliminating candidates the Electoral Committee proceeded in
accordance  with  § 4 paras. 2, 3 of the Act  on  the  Standing
Orders,  thus  it  judged whether the formal requirements  laid
down  by  law  had  been fulfilled (a nomination  submitted  by
authorized  subjects,  fulfillment of eligibility  requirements
for  membership in the Council of Czech Television).  It cannot
be  objected  that  this  manner of  proceeding  constitutes  a
violation  of the principle of equal conditions for  access  to
any elective office.  Nor can a violation of that principle  by
found  in  the  other  way  in which  the  Electoral  Committee
proceeded,  by  which the selection of a restricted  number  of
candidates was then further carried out solely on the basis  of
an  election by secret ballot.  It is entirely clear that  this
manner  of  proceeding allowed for all nominated candidates  to
have the same opportunity for access to this office.

     In view of the foregoing and in consequence of the respect
for   the  principle  of  proportional  representation  in  the
constitution of the Electoral Committee, one cannot come to the
conclusion  that  Art.  21  para. 4 of  the  Charter  has  been
violated,   nor  that citizens have been denied access,  on  an
equal basis, to any elective or other public office (membership
in  the  Council of Czech Television).  Once again the  evident
intention  of the Chamber of Deputies should be reiterated,  to
form  its  body (while respecting the principle of proportional
representation),  which evidently created  the  conditions  for
making more effective the Chamber of Deputies‘ activities  when
electing  members  of  the Council of  Czech  Television.   The
maintenance of equal conditions for citizens in terms of access
to  any  elective or other public office can be found in  their
equal  opportunity, through the proposals of qualified persons,
to  compete  for the office of member of the Council  of  Czech
Television, and that from the perspective of the existence  and
competence  of  the  Electoral  Committee  established  by  the
Chamber   of  Deputies  on  the  basis  of  the  principle   of
proportional representation.

     Finally, the petitioners also object that that portion  of
the  current  text of § 46a para. 2 of the Act on the  Standing
Orders  which  reads  „  .  . . and select  from  the  proposed
candidates who meet the requirements pursuant to this Act  .  .
.“ is defective, as it is not unambiguous which Act is referred
to  by  the formulation „ . . . this Act. . . “, especially  as
the Act on Czech Television is not even cited in the Act on the
Standing  Orders  and,  in the given context,  the  legislature
could not have had the Act on the Standing Orders in mind.  The
Constitutional  Court states in reaction  to  this  observation
that,   although  the  formulation  of  words  chosen  is   not
particularly  suitable,  it  is unambiguously  clear  from  the
overall context of the contested provision, that its §  46a  of
the  Act on the Standing Orders, that it refers to the election
of  members to the Council of Czech Television, and it can thus
be  deduced that the requirements for the performance  of  this
office  are laid down in the Act on Czech Television.  In  this
connection,  the Constitutional Court affirms that the  inexact
formulation is rather of a technical character and that  in  no
case does it render the contested provision unconstitutional.

    In view of the foregoing, the Constitutional Court has come
to the conclusion that the contested provisions do not violated
Art. 21 para. 4 of the Charter.


Notice  :  The judgment of the Constitutional Court may not  be
appealed.

Brno, 30 April 2002