Prime Minister M. Topolánek's address, 'Reforming the Czech Judicial System,' given at the Law Faculty of the University of West Bohemia in Plzeň
The topic of my lecture today is judicial reform. Of course it would be more than presumptuous of me if I were to speak to you about specific changes and specific paragraphs. Undoubtedly you know far more about it than I do. Justice Minister Jiří Pospíšil is even an alumnus of your faculty. The authors of fundamental codes are your other teachers. Professor Karel Eliáš with the civic code. Professor Pavel Šámal with the criminal code. Doctor Bohumil Havel with the business and insolvency codes. And others who work in expert recodification commissions.
For this reason, I would rather talk about the goals of reform instead of its specific content, about the ethos of reform, about the philosophy of the relationship between the judiciary and society. If I were to concisely summarise the content of those gigantic sums of work on judicial reform and the new codes into a single phrase – which is something I would like to thank your teachers for on behalf of my ministers – it would be be: Protection of the individual, protection of his rights and freedoms. We want for nothing less than the fulfillment of the commitments of the Charter of Fundamental Rights and Basic Freedoms. The individual has inalienable rights, including the right to a judge that will defend them.
When all else fails, judicial power is the last instance, the last possibility to defend the individual's rights and freedoms. What is necessary so that this last instance, this last barrier between law and injustice, does not fail as well? Of course a simple answer must occur immediately to everyone: Good laws. But we're making those. You're making those. The effort to rehabilitate and strengthen the rights of the individual runs like a red thread through all the fundamental codes. Strengthening private law at the expense of public law. To strengthen the protection of citizens' life, health, property and privacy.
Nearly 20 years after the fall of the Iron Curtain, we are finally cutting ourselves free of the era of communist law. A radical transformation of the fundamental codes is finally coming, and it is not merely a cosmetic amendment. In the first decade after the fall of totalitarianism, we rehabilitated the market as well as economic and political freedoms. But these societal and economic movements did not find an adequate reflection in the transformation of the law. The judicial system lagged behind economic reforms. Cases were tried according to a lightly-adapted communist code, and in some cases an appropriate legal adaptation was missing altogether.
As a result of this deficit, newly-gained rights and freedoms did not have adequate protection. That last instance could not function well. A dangerous gap emerged between a dynamically developing society and the institutions intended to protect it, intended to ensure the rule of law. In the second half of the decade, a new power decided to fulfill things its way. An authoritarian state returned, and public law again strengthened; political orders put the judicial system under pressure. This clearly ideological direction was further strengthened by the fact that at this time, European legislation was being implemented, which was an immense package of public law.
Our basic freedoms returned to us in the first decade after the fall of communism, but they were not adequately secured institutionally. The protection of civil rights and freedoms were not helped in the second decade; on the contrary, they were pared down and regulated "just to be sure." And this frequently occurred under the false pretense that "this is how Europe wants it." So the task of ensuring citizens with adequate judicial guarantees of their rights remained with us.
But new codes only make up part of this major task. You are all well aware that the technical conditions for judicial work is just as important as good laws. For this reason, part of the judicial reforms include organizational changes, the creation of mini-teams and the removal of unnecessary bureaucracy which leads judges away from the essence of their work. Courts have also been better equipped, and eJustice is coming; it will ease workloads for courts and at the same time make their decision-making more transparent. Improved information transfer will save time and will help both judges and trial participants.
We have here two pillars, which the judicial guarantees of our rights and freedoms are built upon. Quality laws and technical infrastructure. But aren't we still missing something? Aren't we missing the third pillar? Just as we know that three points determine a flat surface, there are three points that are the guarantee of our system's stability. We also have three powers in the state. And it is the standing of judicial power, its limits and the philosophy of its function that I want to discuss more extensively. This third pillar is the responsibility of judges themselves.
One of the priorities of reforms is of course to strengthen judicial responsibility. Strengthening the court chairman's managerial responsibility for results as well as strengthening individual judges' responsibility for their own work. An important element increasing responsibility is the makeup of the disciplinary senate; now it will not only be made up of judges themselves, but also state prosecutors and lawyers. Emphasis on judges' professional education will also play a role. Without it, the gap between societal development and the development of the law would be filled only on paper, but not in practice.
These all are parameters that bring important feedback into the system. Parameters that increase judges' personal performance and professionality. But the judges themselves have the final word. They have enormous power. It is a power that is essentially aristocratic. The right to administer justice always belonged to kings and princes. The judiciary's power, founded on individual decisions, is a counterweight to the majority's democratic power.
We do not have a system of jury courts, which combine both types of power. But that is somewhat on the periphery, and I definitely do not intend to get into legal explanations of the advantages and disadvantages of both systems. Let's move from specific arrangements to the basic philosophical question that all democratic and legal states regardless of their national specificities. You've probably already guessed how it will sound: How to ensure balance between all three state powers? Because only a balance between the legislative, executive and judicial powers gives citizens guarantees of the optimal protection of their rights and freedoms.
On a general level, the answer isn't complicated. All you have to do is maintain a division of powers in the state as set by the constitution. The parliament creates the laws and marks the playing field for both the government and the judiciary. But it neither manages nor makes judgements. The government manages the state, but it does not create laws and cannot decide in court disputes and trials. The courts are the last instance deciding our rights and freedoms, but cannot themselves choose the shape of the law they are, and cannot change the political decisions of the government and president.
This functions well on paper. But it is sometimes worse in practice. I will pass over attempts by the Chamber of Deputies to take over the government's executive authority because that does not belong here. I will also pass over the possibility that either the cabinet or the parliament would interfere with judicial independence either through laws or government decisions. Because such a violation of the constitution would simply not be passed - and even if it were, judges - in this case the Constitutional Court - would have the final word. If something among our institutions worked and has been working since the 1990s, it is the very strong position of the Constitutional Court, which has simply ruled out any expansion of power by the parliament or governments at the expense of the courts.
Correct me if I am wrong, but the only power in the state that can expand at the expense of others is the power of the judiciary. After November 1989, we justifiably feared the misuse of political power in particular. For this reason, we subordinated the parliament and government not only with strict constitutional limits, but with a moral limit that was no less strict. The public and the media are literally allergic to anything that might possibly carry a whiff of the expansion of political power. This is absolutely fine. What is less fine is that such a strict scale does not apply to judges.
Instead judges are frequently considered the only proper yardstick for standards of not only legality, but morality as well. But just like politicians, they are also only people. People with their errors, prejudices and failures. I can understand that disappointment in politicians leads many people to seek shelter with judges. Or maybe I should say many journalists. Because ordinary citizens have frequently had bad experiences with both groups. This desire for a saviour, a messiah, is just as na?ve and dangerous as when, after November 1989 we connected guarantees of morals with certain politicians. The old rule is that power always corrupts. Absolute power corrupts absolutely.
In our situation, no one can gain absolute power. Nonetheless, a judge can have absolute power, at least in a certain space and time, until an appeals court decides otherwise. The judicial system as a whole, if we count the Constitutional Court in there as well, has absolute power on quite a wide variety of issues. It is well-known that judicial solidarity frequently leads to a situation where judicial power behaves not as a sophisticated collection of appelatory brakes and counterbalances to democratic power, but as an unshakeable monolith.
In contrast to the government, whose decisions are subject to the effective corrections of public opinion, judges enjoy a seemingly-inexhaustible reservoir of moral trust. Especially in relation to democratic power. In this regard, even the strangest decisions don't tend to get much criticism. On the contrary, they are taken as a basis to criticize the government or the president. But there is no "good reason" that is good enough for us to tolerate the creeping deflection of the balance of powers in the state. I do not want to use the strong term 'judiciocracy,' which carries a whiff of a legal coup. But I see a threat here for constitutional balances.
"A government of laws, not of men." Who should honour this basic principle of the legal state more than judges? I have enough reasons to be convinced that in the relationship to the president and the government, some judges are led more by personal wishes than by the constitution and laws. These cases were described in detail in the media and I do not want to return to those on this occasion. But I hope that maybe sometime in a diploma thesis, they will undergo an unbiased analysis.
Otherwise, I do not think that politicians are the sole victims of judicial untouchability, or even its main victims. We know of a number of specific failurs by judges who not only failed to protect citizens' rights, but directly harmed them. These failures went unpunished, because the disciplinary senate evidently honoured professional solidarity and the protection of their colleagues more than the law and protection of citizens' rights. Luckily, we have changed the makeup of the disciplinary senate, expanding it, as I have mentioned.
I cannot serve it with what I have said here today. But I believe that at least the halls of academia create an island of freedom where one can express his opinions without regard to whether or not they are popular. Of course, my opinion is necessarily subjective. But this is just what I am talking about. Everybody decides subjectively. Even judges, who, just like politicians, command great power. Which is lifelong and limited by nothing. We must consider this.
Our reforms represent justicial evolution. They create better legislative and technical conditions for protecting civil rights and freedoms. But true improvements will come gradually and slowly. I do not believe in revolution. I do not believe in quick and easy solutions. I do not believe that waving a magic legislative wand will suddenly remove the mistakes that citizens complain about when they talk about the judicial system. So this is not slowness, but also the unpredictability and illogicality of decisions. Politics cannot correct the judicial system. The opposite is also true, of course. Each of us must perform our constitutional portion of work and not be restrained by thinking we will become entangled in work others should be doing.
In the introduction I posed the question of what is necessary to keep the judicial system, the last barrier between law and injustice, from failing. It was a bit of a trick question. A definitive answer does not exist unless a person turns toward worn-out cliches. The resolution of one problem or set of problems always provokes new questions, as I have tried to show in this lecture as well. But at the beginning there must be an honest effort to seek them out. This, then, is my answer: We must all seek justice over and over again.
