End of an era for Czech Constitutional Court?

The vice-president of the Czech Constitutional Court, and one of its most distinct judges, Eliška Wagnerová retired on Tuesday as her ten-year term expired. Dubbed the Queen of Dissent, Justice Wagnerová left a deep mark on the top Czech court. She was behind some of the court’s crucial rulings, including that on the EU’s Lisbon treaty, and unwaveringly stood up to political pressure. Radio Prague asked Prof. Jiří Přibáň from Cardiff Law School whether her departure marks the end of an era for the highest court in the land.

Eliška Wagnerová, photo: CTK

“Eliška Wagnerová definitely was one of the most robust judges on the Constitutional Court. She did not shy away from pressing her own views, and these were often inspired by EU and US jurisprudence. She definitely was one of the most influential justices of the court. We must not forget she was appointed by President Václav Havel and with her, the Havel legacy is disappearing from the court.”

The Constitutional Court came under criticism for being too activist, with one of its most prominent critics being the current president, Václav Klaus. Is that a fair observation in your opinion?

“I think we have to differentiate between two issues here. President Klaus certainly waged his own war not just against the Constitutional Court but against the whole system of justice which he tried to corrupt. So let’s leave these political aspects aside.

Václav Klaus, photo: archive of the Czech Government

“Speaking of judicial activism: indeed, all post-communist constitutional courts were activists in some way. But the special activism of the Czech Constitutional Court consisted in its robust doctrine of the legitimacy of the democratic rule of law and the constitutional order. So I think its activism was perfectly justified by the needs of the Czech Republic in its democratic transition.”

President Václav Klaus has come up with two nominations to replace the outgoing Justice Wagnerová but they were both rejected by the Senate. What is Mr Klaus’ approach to the court? What changes can we expect?

“The story of President Klaus’ appointees being rejected by the Senate goes way back. Ever since Mr Klaus assumed office, he has tried to push through his appointees to the dismay of the Senate so the most recent examples are just part of his attempt to have politically loyal people appointed to the court.

The Constitutional Court

“However, even the ‘second’ Constitutional Court, which was headed by Pavel Rychetský as its president, declared its independence and certainly acted independently and in the interest of Czech constitutionalism rather than in the narrow interest of the political elites, either in the government or in the lower house of Parliament.”