Pl. ÚS 41/23
The Constitutional Court ruled on “Lex Babiš II,” an amendment tightening rules regarding media ownership by politicians and the receipt of subsidies by government members and their business entities. The Court annulled the amendment to the extent that it was affected by the unconstitutional rider introduced by deputy Jakub Michálek. The decisive factor was a constitutionally significant procedural error in the legislative process. This ruling is significant as it protects not only the rights of the current opposition but also those of all potential political minorities in the future.
The movant, a group of 70 members of the Chamber of Deputies represented by Alena Schillerová, challenged the process of adopting the amendment, specifically Act No 253/2023 Sb., amending Act No 424/1991 Sb., on association in political parties and movements, as amended, and other related acts. According to the movant, the original bill was intended only to amend the organisational structure and governance of the Office for the Supervision of Political Parties and Political Movements (the Office). However, an amendment proposal by deputy Jakub Michálek incorporated into the amendment a stricter prohibition on media ownership by politicians and the receipt of subsidies and investment incentives in the Conflict of Interests Act, including similar changes in two other acts. The movant argued that this amendment proposal constituted an unconstitutional rider. They also claimed that parliamentary debate was unconstitutionally curtailed, as the discussion in the third reading was closed even though there were still registered speakers left.
The Plenum of the Constitutional Court (Justice Rapporteur David Uhlíř) upheld the opposition deputies’ motion. The Constitutional Court annulled the amendment in provisions resulting from the unconstitutional rider. This derogation will revive the original legal provisions of the Conflict of Interests Act. However, the Court did not agree with the claim that the parliamentary debate in the third reading was unconstitutionally restricted.
A rider, in general terms, is an amendment that lacks a close connection to either the purpose or content of the original bill and does not achieve broad consensus in the Chamber of Deputies. For such riders, it is necessary to assess the extent to which they infringe constitutional rules and principles, which may vary between cases. The Constitutional Court then evaluates whether other, opposing constitutional values outweigh the violated rules and principles, justifying a decision not to annul the law in question.
The specific amendment proposed by deputy Jakub Michálek (Document of the Chamber No 312/3) constituted an unconstitutional rider. The amendment lacked a close connection to either the purpose or the content (subject matter) of the original bill, and no broad consensus in favour of its adoption was achieved in the Chamber of Deputies. The substantive changes introduced by the amendment were not closely related to the content of the original bill, which concerned the reorganisation of the internal structure of the Office. While the original bill aimed to reorganise the Office and introduced one (essentially marginal) new competence to publish reports on the activities of the administrative authority, the amendment proposal neither sought to enhance the Office’s internal efficiency nor to improve public awareness of its activities. Instead, the amendment proposal aimed to establish oversight of media ownership by politically active individuals, their relatives, legal persons, and businesspersons. Of the 154 deputies present, 83 voted in favour of the amendment proposal, while 80 voted against. In the final vote on the bill as a whole, 86 deputies out of 165 present voted in favour, while 65 opposed it. Therefore, a qualified majority was not achieved.
The rider violated the requirements for transparency, clarity, and rationality in the legislative process, principles derived from the democratic rule of law [Article 1(1) of the Constitution]. It represented an abuse of the right to submit amendment proposals in order to circumvent the legislative initiative process [Article 41(2) of the Constitution]. The aim of the amendment proposal was to insert into the government’s bill provisions that should have been presented as a standalone legislative proposal, which, at the time, had indeed already been submitted to the Chamber of Deputies as a separate bill (Document of the Chamber No 110). Furthermore, it was revealed during the oral hearing before the Constitutional Court that the submitting deputy had used the amendment with the intention of surprising the opposition and limiting its ability to respond effectively.
At the same time, the Constitutional Court did not find that any conflicting constitutional rules and principles outweighed those violated in this case. The Court specifically addressed the argument raised by deputy Jakub Michálek that the opposition had been determined to obstruct the consideration of the proposal until the end of the electoral term, leaving the issue of accumulating media and political power unresolved. According to the Constitutional Court, obstruction should not lead to the paralysis of the legislative activities of the Chamber of Deputies, as this would prevent the majority from expressing its will through free voting. If the activities of the Chamber of Deputies are already being blocked, unlimited obstruction can be constitutionally terminated at any stage of the legislative process, even if such an option is not explicitly provided for in the Rules of Procedure. Paralysing obstruction constitutes an abuse of rights by a political minority, which is not protected by constitutional law. Despite the difficulties that obstruction by a political minority may cause for the functioning of the Chamber of Deputies, the use of riders is not an appropriate means of addressing such issues. The parliamentary majority has other constitutionally compliant tools to ensure that the Chamber’s activities are not obstructed.
The protection of legal certainty did not outweigh the reasons for annulling the amendment in the parts that resulted from the unconstitutional rider. The amendment was challenged before the Constitutional Court shortly (less than a month) after its promulgation in the Collection of Laws and International Treaties. The annulment of the contested provisions is not in conflict with the values of the material rule of law, legal certainty, or the effective protection of constitutionality. Even the government acknowledged during the oral hearing that the legislative process concerning the rider was flawed. The Constitutional Court found that this flaw was of a constitutional nature.
The Constitutional Court emphasised that the current state of the Rules of Procedure of the Chamber of Deputies and their application is unsustainable in the long term. Therefore, in its ruling, it called on deputies across the political spectrum to work towards reforming the Rules of Procedure to ensure that the proceedings of the Chamber of Deputies comply with constitutional principles, namely the principle of majority decision-making through free voting and the principle of minority protection.
Public trust in laws is partially built on trust in the legislative process, which must involve open, transparent, and unambiguous procedures. A law must be the result of discourse conducted across the political spectrum. A proper legislative process is one that enables open discussion between proponents of competing views, including minority opinions. The Constitutional Court oversees adherence to the legislative process.
Today’s decision by the Constitutional Court protects not only the rights of the current opposition but also those of all potential political minorities in the future.
The joint dissenting opinion (disagreement with the verdict and the reasoning) was filed by Justices Milan Hulmák, Veronika Křesťanová, Tomáš Langášek, Kateřina Ronovská, Jan Wintr and Daniela Zemanová.