Introduction
II.A Motivation and Goals of Demokracie
II.1 Liberty and Justice
II.B Rules of Mutual Behavior
II.2 Mutual Respect
II.3 Human Rights
II.4 Corruption
II.C Subject Matter of Democracy
II.5 Subject Matter of Democracy
II.6 Institutions of Democracy
II.D Constitution
II.7 Constitution
II.8 Flaws of the Czech Constitution
Democracy is a way of public administration in which the decision-making remains in the hands of the citizens. The principles which frame such a way of public administration may be considered as the basic principles of democracy.
We distinguish three groups of such principles:
The principles of the first two groups are basically philosophical, the principles of the last group are practical.
The main goals of democracy have, already since ancient Greece where democracy in our sense of the concept has first been described, been citizens' liberty and justice in the society. The purpose of the efforts to establish democracy is to form such an administration in a society which would be just, would provide adequate freedom for the citizens and would leave the responsibility for the administration in the hands of the citizens.
All the while, a society can only be just and free when its members behave with respect to one another. This is a general prerequisite of a good life of any society and of any other human community, as documented by the experience of mankind and of civilizations all over the world.
The task of public administration in democracy is to provide for the citizens services which they cannot secure by themselves. Democratic public administration may provide even services which the citizens could secure by themselves, but the citizens ought to be careful with such decisions – public services are costly and comfort is addictive. Democratic public administration has no tasks which do not have the nature of a service.
It is crucially important to be aware that the task of democratic public service is not to govern, nor, of course, to rule. The decision-making in a democracy rests with the citizens, all citizens, so there is nobody else around to be governed. The concept of government belongs to the principles of authoritarian administration. In democracy the citizens' representatives do not possess power. Power acts arbitrarily, whereas democratic representatives and officials act according to the citizens' authorization. They are entrusted with various appropriate authorities to act in designated positions in the administration to secure defined services for the citizens.
The main principles of democratic communities ought to be codified in their fundamental documents. Such a fundamental codex – in ancient Greece it used to be the “city order”, “politeia” – is now usually called a “constitution.”
The historical moment for the creation of democracy used to be the toppling of a government which had become intolerable for the citizens. The immediate goal of such a civic revolt always was the liberation from dictators, and a deeper goal was the desire for a better organization of public administration, and in particular for more justice in the society.
The revolt against an unwanted dictatorship may have various forms. But its legitimate motivation has always been and remains to gain freedom and reform public administration so that it would respect the natural universal rules of mutual behavior among people. People perceive injustice keenly and naturally desire a correction – this must have been so always. Already Aristotle distinguished proper government, taking care of the needs of all citizens, and perverted government caring only or primarily for its own interests.
Freedom and justice are then the immediate goals of democracy.
The desire for freedom is natural. It has been viewed as the main goal of democracy already by Aristotle, and is seen as such also in modern political science.
John Locke, one of the thinkers who most inspired the fathers of modern democracy, considered freedom among the most important assets of human life: „The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions.”(1) The right to liberty, life and possessions was here expressed in the language of the Old Testament, that is the language of obligations to others. Later, these rights were incorporated into the American Declaration of Independence, but already in the language of claims, as God-given and inalienable rights to life, liberty and pursuit of happiness.
The thinking of the enlightenment of the 18th century reaffirmed and, intellectually, carried through the right to individual liberty. Politically, however, the struggle for liberty has continued and, in many ways, remains undecided.
In the middle of the 19th century John Stuart Mill, the English political philosopher, designated liberty as the key political goal – according to him the task of government was securing space for the free development of every individual.(2) J.S.Mill is considered to be the founder of “classical” liberalism. At the same time, however, other trains of thought developed pointing out that in practical experience pure freedom leads to the growth of wealth of those who are more aggressive and unscrupulous, to the detriment of the others. These thoughts found a powerful expression in the American Civil War and the statement of President Lincoln about “freedom for all”: „Without the Constitution and the Union, we could not have attained the result; but even these are not the primary cause of our great prosperity. There is something back of these, entwining itself more closely about the human heart. That something, is the principle of “Liberty to all” – the principle that clears the path for all – gives hope to all – and, by consequence, enterprise, and industry to all.” Lincoln's principle of “freedom for all” can be seen as the essence of American left-wing liberalism.
We see that it is necessary to treat liberty with caution. Some people tend to ignore the obligation of justice and attempt to grab more freedom for themselves than appropriate. When they succeed, they squeeze the living space and liberty of other citizens. The society then heads again towards the divisions between unjustly rich and powerful, and unjustly poor and powerless – that is back again to the state which incited the democratic revolt. It shows how democracy is fragile from its beginnings, and if the citizens wish to preserve it they must take care of it very conscientiously.
Contemplation of liberty has led us to the realization that freedom must not overstep the limits of justice, and that in a free world no person should fall into subservience to another person, or into the workings of anyone's power. Liberty is an inalienable right, but there are limits to it – these limits are given by respect to the environment, to all living creatures as well as to inanimate nature and the spiritual principles of life.
In essence, justice is equality of people with regard to natural moral principles, and hence equality with regard to law. So, in our considerations of democracy, we can conclude:
The motivation and goals of democracy are liberty, inseparably intertwined with justice.
Considering justice we repeatedly come across the idea of equality; already Aristotle found himself led to speculating about the equal access to official functions in democracy, and then later, starting in renaissance, we find equality in some guise at almost all political thinkers. John Locke, in the quoted statement, meant equality before God – the equality which corresponds with the concept of justice, equality with regard to law, equality of opportunity.
We come, however, also across considerations of equality of using wealth, the equality of consumption; such considerations do not have support in the natural universal principles of mutual behavior among people. Moreover, as a political program they are dangerous – regularly they hide power strategies aimed at winning election votes, rather than being an expression of an effort to help the disadvantaged which they usually purport to be. Their factual erring is well expressed by the proverb “no Pain, no gain.” Where these ideas are allowed to be implemented, too often they lead to a redistribution in the society by force. Some well-considered redistribution in a human society is natural, but if it is to succeed and the society remain comfortable, it must be a result of agreement.
In our own historical experience, forcible redistribution was linked primarily with Stalinist Communism with its perverse effort to clear away and squeeze down everything that could endanger its rule. It is used, however, by many other political manipulators, mostly on the political left, even if sometimes possibly without being properly aware of the consequences of their ideologies and actions.
Every person must carry the responsibility for their own life themselves; the society can, in accordance with the authentic leftist liberal thinking expressed in the maxim “liberty for all,” care that life's conditions of all of its citizens be liberal and just, and “equal” for all in this sense. This may entail help for the weaker, but such help ought always to stay within the bounds of helping to ensure conditions for sovereign free life. As soon as the help steps beyond such boundaries and turns into handouts, it leads to forming dependencies, to the loss of human dignity of the recipients of the help, and so ultimately to an enfeeblement of the society.
The second group of the basic principles of democracy are the principles regulating the mutual behavior of the citizens, and the relations between the citizens and the institutions of public service.
The natural requirement of justice by people who shake off a dictatorship is a part of the general requirement of moral behavior, which, in fact, means the requirement of mutual respect among people. This requirement is valid for every healthy community – without mutual respect no community can successfully prosper.
Mutual respect is the foundation of relations among people in our civilization at the latest since the Ten Commandments of the Old Testament were written. The need for mutual respect is embedded also in the basic documents of the European Union. For example, the Introduction to the Charter of Paris for a New Europe of 1990 states:
“Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person.
Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law, and justice administered impartially. In democracy, no one will be above the law. ...”(3)
The Czech society has also affirmed these moral principles by its Constitution. The Preamble of the Czech Constitution says:
“We, the citizens of the Czech Republic … determined to build … the Czech Republic in the spirit of the inalienable values of human dignity and liberty, as a homeland of free citizens equal in their rights, who are aware of their obligations to the others and their responsibility with respect to the whole ...”
The natural obligation of mutual respect is present also in other civilizations. So, for example, the Chinese dissident, philosopher and democrat Wei Jingsheng said during a conference in Prague in 2005 that “the most important values, like mutual respect among people, are universal.”
A community in which the rules of mutual behavior cease to be observed tends to be overtaken by disorder, the more unscrupulous individuals usurp unjust privileges, and so the life of the community is disrupted. In every common or collective activity some order must be observed if it is to proceed successfully, even in every simple sporting game – when the players violate the rules the umpire whistles. All the more so this holds for the mutual behavior of members of human communities. The order of human communities is mutual respect, the moral order.
Communities which fail to protect themselves against violations of their moral rules are ill. Life in such communities falls under the influence of the violators, becomes unpleasant and unsatisfactory. Eventually, the wealth and culture of such communities also declines because people cannot be creative in the resulting atmosphere of uncertainty. The wealth of a community can only grow when its members are satisfied and secure in the expectation that the fruits of their labors will be preserved.
The opposite of moral order is chaos. When moral rules cease to be observed, the influence of rough power ascends and unscrupulous people prevail. Subversion of the moral order is thus the principal threat to every community and society.
Natural law is derived from the natural principles of mutual behavior, from mutual respect, from morality. When a human community grows to such an extent that the authority of the community's elders and shame before neighbors do not suffice to preserve mutual respect, the need arises to codify some of the moral rules, to “carve them into stone.” This is the origin of “law.” The purpose of law, of a legal order, as much as the purpose of a moral order, is securing mutual respect, and thus securing justice, the fundamental civic and democratic requirement.
We possess excellent evidence of the efforts of our ancestors to enforce mutual respect and natural law. A superb example of the early appreciation of natural law in our Mediterranean civilization are the Ten Commandments of the Old Testament. From the fifth through the tenth commandment each of the commandments expresses some aspect of the obligation of respect to the others. There is also Cicero's defense of natural law, in his speech on the commonwealth: “True law is right reason, consonant with nature, spread through all people. It is constant and eternal; it summons to duty by its orders, it deters from crime by its prohibitions. Its orders and prohibitions to good people are never given in vain; but it does not move the wicked by these orders or prohibitions. It is wrong to pass laws obviating this law; it is not permitted to abrogate any of it; it cannot be totally repealed. … all nations at all times will be bound by this one eternal and unchangeable law ...” (50 B.C.)
Some politicians and philosophers question the existence of natural law. They argue that the moral rules from which the natural law is derived cannot be logically proved. This they indeed cannot: moral principles are primary, similarly as axioms of mathematics or physical laws, and can only be perceived by intuition, and then verified by experience. This does not mean, however, that they do not exist, and are not binding. Human experience, expressed, for example, in the Old Testament commandments, demonstrates convincingly that natural rules of proper mutual behavior exist.
Legal positivists assert that laws are always written by men and are always pragmatic, and so are not derived from any independently existing and valid natural rules. This attitude is, in our opinion, wrong. Moreover, it is dangerous, because it opens the way to creating laws on purpose, premeditated to provide undeserved advantages for some individuals or interest groups. This we have repeatedly seen in modern history, e.g. in the Nazi Nuremberg laws or in the Stalinist legislation under the Soviet regime. In many cases this corrupt approach to legislation appears also in the present democracies, when special interest groups push through their intentions into legislation.
The legislative attitude of dictatorships is always legal positivism – dictatorships use legislation to secure their otherwise unjustifiable continuation, and their suppression of the liberty of their citizens.
The term “positive law” describes written laws whose validity has been approved by some manner accepted in the community or society. Positive law thus does not need to be a creation of legal positivism, it can also be the result of efforts to give legal form to natural law.
No written positive law can cover all morality, everything which is considered right in the mutual behavior in a society. Written law is a way out of need in situations when the traditional unwritten rules do not suffice to enforce correct mutual behavior. Yet, even today's large multi-million societies rely to a large extent on the unwritten moral and civilizational awareness, traditions and customs, prevailingly known even to those who violate them. The healthier the society is, the larger is this share of what does not need to be written. Failing to observe the unwritten rules of respectful behavior is, on the contrary, a sign of social decay.
Today, the rules of mutual behavior are usually put into “bills of rights.” This is an indirect way of enforcing mutual respect: it does not prescribe how people ought to behave, but prescribes to everybody to behave in such a way that the “human rights” of all the others are respected. Starting at the latest by the English Magna Carta the bills of rights are basically lists of demands of some citizens with regard to the others. The quality of demand betrays the attitude of legal positivism. This is also confirmed by the inclusion of the so called “positive rights” in most of these bills – rights which require for its fulfillment contributions or expenses by others. Some of these claims, much as some of the pragmatic laws of legal positivism, are difficult to justify.
The concept of human rights has developed in the process of the gradual winning of more decent attitudes to citizens by those in power. It is thus a broadening of the already achieved freedom from oppression.
In Europe, the idea of human rights apparently originated in the efforts of the nobility to gain certain privileges from the sovereigns – such efforts led to the approval of the famous Magna Carta in England in the 13th century. In the same spirit, as a protection of citizens against the government, the American Constitution was expanded by the Bill of Rights, a protection now of all citizens.
The signing of the Universal Declaration of Human Rights of the UN in 1948, however, expanded the concept of human rights beyond the protection of citizens against governments to include active contribution by governments to the well-being of the citizens. This unwise step has since led to the weakening of the age-old concept of moral obligations, which had been traditional in our Mediterranean and other civilizations, and has been the foundation of their strength. The Declaration established rights of citizens to demand help from the society, and expanded the atmosphere of claiming rights even into private relationships. As a result, the claiming of rights gradually weakened, or even replaced, the tradition of the obligation to respect moral principles.
The substitution, and ensuing suppression, of the obligation to uphold moral commandments by the protection and claiming of rights is a serious threat to the societies of today's democracies, and is one of the main reasons of their present decline, if not the main such reason. In the regimes which cannot be called democratic, such as China, Russia, Turkey and a number of others, such claims are suppressed and are not legally enforceable – but these regimes do not uphold the obligation to respect universal moral rules either, at least not for their rulers and their fellow travelers.
A sharp criticism of the claiming of rights was voiced several years ago by the now deceased ruler of Singapore and political philosopher Lee Kuan Yew. His criticism is so apt that we will quote a longer part of a report published about it in the Czech magazine Reflex:
“ … according to Lee Kuan Yew it is a trap to glorify personal rights to the detriment of personal responsibility. He is convinced that in the West rights have got out of control, and a real cult of rights and claims has developed, unchecked by the sense of obligations. The sociologists imposed on the people of the West the idea that their failures are not the result of their own mistakes, but a failure of the economic and social systems. “When welfare becomes a right,” the father of the Singaporean miracle observed, “the stigma of living off alms, the stigma of parasitism and the shame of accepting government handouts disappears. As a result, sooner or later the cost of these claims far exceed the resources of government budgets. Living on debt then becomes the way of life, and it will have to be repaid by the next generations.” …
Lee Kuan Yew admires Europe of the past, dynamic, entrepreneurial and certain about its principles, Europe of liberty and initiative. Present Europe passed into retirement, and its democracy expires by creeping socialism.
A democracy incapable of securing economic success is condemned to extinction. Universal elections force politicians to ceaselessly corrupt voters and the growing commitments of the states to the citizens hinder the economic growth similarly as the steel ball at the ankle of a galley slave. The Singaporean thinker believes that the relay stick of positive changes Europe used to hold has been taken over by the Middle Kingdom. China is Europe of today.”(6)
Speaking about the failure of the economic and social systems Lee Kuan Yew meant the “positive rights,” claiming for individuals contributions from the society, like the right to work or even right to “such quality of life which secures for the individual his health and welfare, and the health and welfare of his family, including particularly food, clothing, housing and health care, as well as the necessary social provisions …”(7) His assessment appears to have been correct – we can see in the whole Western democratic world that the “social state” that has grown by enforcing these rights leads to deep state indebtedness and is not economically sustainable.
The social state brings with it another, even if unwanted, consequence – it results in ever growing groups of people who lose the ability to take care of themselves and are dependent on the help from the other members of their societies, provided impersonally by the governments. Gradually, these people lose their human dignity – despite their also having a right to it according to the codices and laws of rights … The lives of the poorer and weaker people tend to be uprooted, as they lose the sense of responsibility for their own lives and the lives of their families, and expect or even demand handouts from governments. In this way, however, they can never reach satisfaction in their lives. Additionally, breeding grounds of crime develop in their environments, and whole societies affected by such developments then become sick. The shift from the traditional charitable help for the weaker to the present right of everybody to receive help from society is thus proving to be very unfortunate.
The attitude of claiming rights is generally improper – not just in the case of the positive social rights. It tends to overshadow the obligation to uphold the moral commandments traditional in the Western civilization, and their replacement by the “cult of rights” mentioned above. There are more reasons why the emphasis on rights, instead of obligations, is inappropriate.
Primarily, the concept of rights is secondary, derived from the concept of moral obligations: one can only have a right to something which is proper, right, to something which is in accordance with the fundamental principle of mutual behavior – mutual respect. Thus, human rights, if they are to be justifiable, must be in agreement with the traditional moral commandments of our civilization.
The requirement of proper behavior, fully expressed by the principle of mutual respect, is thus primary. The priority in the attitude to other people ought to be to act properly, with respect, and teaching this attitude ought also to be the core of education, particularly in families and in schools. This approach has, however, has more or less faded out of our societies – people do not ask what behavior is proper, what is the right thing to do. Instead of seeking right answers, right solutions and acting according to the answers thus reached, people have been learning to look for pragmatic answers and solutions leading to benefits and advantages. The Czech Constitution also reverses the natural relation between moral obligations and rights: According to Art. 4 of its Charter of Human Rights obligations can only be “prescribed on the basis of law and in its limits, and only while upholding basic rights and liberties.” This is an unfortunate reversal because, as already observed, laws written by men can never capture all moral obligations, and can, on the contrary, open space for immoral behavior, or even order such behavior, as we have seen repeatedly throughout history.
It follows from the principle of mutual respect, and the obligation to behave properly to all others which follows from it, that in a healthy society observing this principle one can also expect such behavior from others. Such a healthy society is then also permeated by an atmosphere of mutual trust, which is the fundamental prerequisite of successful development and satisfactory life of a society in all its aspects.
In a society in which mutual trust prevails the need to raise claims on others does not arise. Raising claims, formulating rights and promoting them are all symptoms of unhealthy relationships. In healthy communities of all kinds, from families to nations or states, raising claims is seen as improper and is psychologically undesirable. One is rather expected to trust that others act and will act properly towards him.
Thus, when then the need arose in the middle of the 20th century in our societies to promote rights, to the extent of the UN Declaration, its authors must have been convinced that these societies were deeply unjust, and there was no other possibility than to start an uncompromising struggle for better mutual behavior. Or, there is also the possibility that the authors of the Declaration, with the then prevalent leftist tendencies in Western societies, succumbed to the power goals of the Marxist left and its ideology of class warfare, without thinking through the possible consequences. In any case, beginning with the approval of the Declaration, the basis from which the rules of mutual behavior are derived in Western democratic societies have started becoming the “human rights”, instead of the traditional obligation of mutual respect, instead of proper and moral conduct.
The emphasis on rights has another undesirable aspect in moving the demand of proper behavior from the individual himself to all the others around him. As a result, man ceases to be under the self-preserving pressure to keep one's own behavior proper. By ensuring the protection of rights without requiring the fulfillment of obligations we oblige the desires of man, that which he wants. When we demand the fulfillment of obligations, we tell the person what he must do. Thus, by protecting rights we spoil people, by requiring the fulfillment of obligations we bring him up.
The loss of the awareness that one must behave properly, that is with respect to all the environment, weakens, with people tempted to behave wrongly, the inhibitions against such behavior. Since the society no longer requires morality, mutual respect, it becomes the responsibility of those aggrieved to seek redress to the damages of evil deeds and crime and, as the case may be, seek justice in courts. It is no longer the concern of the guilty party – they also primarily have rights, and will seek to uphold them in the courts. Moral obligations no longer intrude into their conscience, in many cases such conscience has not even been formed by their upbringing.
Ironically, securing the rights established by law for an individual requires the enforcement of abiding by moral obligations and acting with respect to the individual from everybody else. Here we also see a confirmation that the principle of mutual respect and the obligation to act properly is primary. This fundamental truth is being forgotten in invoking “human rights” and people are mostly unaware of it.
Legal positivists argue that it is impossible to say what is right, while to enforce respect for human rights we can use laws. This is a weak argument, however, because laws do not acquire correctness by being approved by men. We have learned this clearly from the experience with the Communist laws and the Nuremberg laws. The only existing confirmation of the validity of the provisions about human rights is the philosophical, intuitive confirmation that this or that right is correct. The correctness of intuitive perception can then be put in doubt, and it can be confirmed or refuted by experience, including, of course, the experiences passed on by scholarship and traditions form our ancestors. Not even legal positivists can evade this fact. All written law, including the charters of rights, are full of concepts which are primary, and thus possible to grasp and accept only philosophically, intuitively. These are, among others, also the concepts of “right,” “liberty,” “order” or “welfare.”
The purpose of setting rules of mutual behavior is to ensure that the members of a given community behave properly to each other, with mutual respect. It is therefore self-evident that the written rules ought to be clear, simply formulated and understandable. The rule that people ought to behave with respect to each other is just such a simple and easily understandable rule. To flesh it out into rules of the type “Thou shall not kill!”, “Thou shall not steal!” and the other commandments of the Old Testament is just as simple and easily understandable.
The attempts to set these rules through the instrument of rights are, however, far from being so simple and understandable. Take, for example, the rule “Thou shall not steal!” In the Czech Charter the corresponding provision could be Article 11 which stipulates that “everybody has the right to own property.” In its next paragraphs Article 11 limits this right by several conditions, but the prohibition of stealing is absent. It is absent from the whole Charter. The UN Declaration, binding for the Czech legislation according to Article 10 of the Constitution, does include such a provision, in a somewhat ambiguous formulation of Article 17: “Nobody may be arbitrarily deprived of his property.” I suspect that an ordinary Czech citizen will not look for this provision, and suspect that a common thief will never learn about this provision of the UN Declaration. The prohibition to steal can be found in the Penal Code, a legal norm of a lower order, but the ordinary citizen will not look for it even there, because he knows that he should not steal anyway. He knows it from his childhood – because, of course, there is the traditional commandment “Thou shall not steal!”
Lawyers may object that it does not matter whether the rules of mutual behavior are derived from obligations or rights, because “there is an obligation corresponding to every right, and vice versa.” This might perhaps be true if the rights enumerated in the charters of rights were formulated in such a way as to express the meaning of the natural obligations of mutual respect or the obligations of the Old Testament commandments. This, however, is not the case. Nowhere in the Czech Charter or the UN Declaration will we find the right to have all other people act towards all others with respect.
The enumeration of rights is precarious in any case. The Charters of rights tend to have many articles and to establish many rights, often narrowly specified. The narrower the specification of the right, however, the more difficult it is for the legislator to express it, and the less precise the formulations are. Often then the legislators helps themselves by transferring responsibility to lower legal norms: “Details will be stipulated by law.” The laws then usually act in the spirit of the tradition and stipulate obligations and prohibitions.
Furthermore, the enumeration of narrowly specified rights, with the absence of a constitutional establishment of obligations, is accompanied by the danger that some obligations will not be covered by the laws, and loopholes will thus be formed which can be used for harmful behavior. The victim of a crime is then obliged to prove that the perpetrator of the crime violated some law, which may prove to be difficult, even if he finds a right in the Charter which was violated – and with the narrow specification of the rights it is far from certain that he would succeed in this. All the while, the offenders have another help in the questionable provision of Art. 2 of the Czech Constitution, as well as Art. 2 of the Charter, stipulating that “every citizen may do what is not prohibited by law.”
The former chairwoman of the Highest Court of the CR complained in an interview for the newspaper Lidove noviny that she is most pained by how many court decisions in the Czech Republic are unjust. The reason is surely not only the absence of the obligation of mutual respect in the Constitution and basing the rules of mutual behavior on rights – its role is also played by errors made by the police and the state attorneys, as well as by corruption. However, the enforcement of justice is certainly not helped by the weakening of the awareness of moral obligations on the part of the citizens and the strengthening of their rights.
Under the existing arrangement, the victims of some crimes must attempt to prove in the courts that their rights have been violated. This can turn out to be a complicated process, legal representation is expensive, and so many victims never even try a defense. Even when they do, they often fail to achieve redress because it is difficult to prove a violation of a constitutionally protected right. The violators also often have good lawyers who know how to exploit the nuances of law. In reality, the rights of the victims are thus often worse protected than the rights of criminals. As a result, dissatisfaction grows in the society as people feel it is futile to call for justice, and, on the other hand, criminality also grows.
Failing to secure justice is a serious flaw of the Czech Constitution. The mistaken attempt to ensure proper mutual behavior through the enumeration of human rights, while keeping silent about justice itself, contributes to the disintegration of the societies of Western civilization.
The deep passivity of citizens of democracies with regard to public affairs should ring alarm bells. Despite tens of rights secured in the charters of rights people do not find in our “political systems” openings to actively seek to implement their “right to participate in the administration of public affairs” (Article 21 of the Czech Charter of Fundamental Rights and Basic Liberties). After they throw their election ballots, the citizens are effectively cut off from public administration.
One can but imagine whether the citizens would be more active if the Constitution stipulated, for example, that their elected representatives and the institutions of public administration must, in all their public work, endeavor to form opportunities for all citizens to participate meaningfully in public administration, in communication with their representatives and in public debates.
The insufficiency of the constitutional guarantees of proper behavior through the protection of rights is best illustrated by concrete examples.
One of the fundamental principles of democracy is the responsibility of the citizens themselves for public administration. A constitution could ensure the fulfillment of this principle by a simple provision of obliging the elected representatives and the institutions of public administration to adopt measures which would make it possible for the citizens to implement their responsibility. The Czech Constitution instead stipulates in the Charter of Rights, Art. 21, Par. 1, the following right: “ The citizens have the right to participate in the administration of public affairs directly or by the free election of their representatives.” In Par. 3 of the same Article it further stipulates that “the conditions of the exercise of electoral right will be set by law.” The Constitution thus effectively cuts the citizens off from public administration. It narrows the citizens' participation to the participation in elections, for which the “law” ensures the privileged position of political parties and intransparent rich interest groups.
We can see several pitfalls of the attempt to determine the rules of behavior by means of rights. It starts by the difficulty to formulate a right, whereas the formulation of the corresponding obligation is much easier. Ironically, the conditions given by laws for the fulfillment of a right must have the form of obligations anyway. Inept constitutional construction of public administration may provide space for bad and undemocratic arrangement of public administration in both cases – using obligations or rights to set the rules of mutual behavior. But even with very conscientious efforts it is difficult to imagine a right or set of rights with comparable applicability to the above formulated obligation to adopt measures enabling citizens to fulfill their responsibility for their public administration.
An example from the area of private law is protection of property. Art. 11 of the Charter stipulates that “everybody has the right to own property.” This is all – nowhere in the Constitution, nor in the Charter, do we find that the property must not be stolen. To find provisions to this effect we must look to lower-level legal norms, which, however, were not sufficient to prevent the large-scale property frauds in the privatization of the last 25 years.
We also have a law in the Czech legal order that an asset is owned by the person to whom it is ascribed in the property registry, with no regard to how the property was obtained and to the way the inscription was made in the registry. The registry has no obligation to examine whether the agreements about transfers of property are not forgeries. These provisions make it possible that, after a transfer of stolen property is registered, the property is transferred again several times, and the original owner then has practically no chance to regain it.
When the “right to own property” is protected in this manner, it is worthless, and cannot substitute for the constitutionally protected prohibition to steal.
The greatest threat to democracy is corruption: the abuse of delegated public authority the purpose of which is someone's unjustified benefit. For this reason, the necessity to prevent corruption belongs to the basic principles of democracy.
The end benefit of corruption is mostly wealth. The simplest way of corruption is a bribe – money paid for a service which a public official provides while abusing his authority, breaking the rules governing his work. But corruption may also aim for gaining the instruments which make unjustified benefits possible. Such instruments mostly have the character of power.
Elected representatives or other public officials receive from the citizens authority and means to provide public services to the citizens. When these public servants are corrupt, whole networks of corrupt influence can be formed inside public administration, within which the public officials cooperate with private companies, agents of various organizations, domestic or foreign, or generally with persons working for some external interest. In the worst case, such influence networks can be formed and financed by foreign governments which attempt in this way to secure long-term influence over the policies or the economy of the affected country. Such agents of hostile powers may try to penetrate the institutions of public administration, economic enterprises, media, education institutions, anywhere where they can gain usable influence. In the Czechlands we must expect that such hostile influence networks have been formed particularly by the Russian government, as we have been repeatedly warned by the Czech counterintelligence agency BIS, quite likely also by the Chinese government, and possibly even by other powers.
A serious kind of corruption is the abuse of public authority by top politicians and officials in approving laws and providing services which bring benefits to select groups in the society, with the goal of winning their election votes. Such corrupt practices are usually rather primitive, like tax measures to benefit the rich or the poor, or various handouts to the voters. Such handouts may sometimes appear to bring benefits to all or most citizens, like cutting health care fees. Such simple measures can sometimes be seen as detrimental at first sight, but they are always dangerous, because they divide the society and create conflicts.
Corruption in public administration provides benefits to a few individuals, institutions, or even to foreign powers, to the detriment of the majority of citizens. So it is obvious that corruption goes against the interests of the majority of society.
It is also clear that corruption is an expression of disrespect or even scorn towards other citizens at whose expense it is committed. It is thus also a violation of the basic general moral rules
When corruption expands substantially it also leads to considerable differences in wealth between those who take part in the corruption and the rest of the citizens of the country. This is wrong, unjust, and also conspicuous – and so it leads to dissatisfaction in the society. It may also lead to attempts by the powerful to silence critical voices, curb liberty of expression and to move public administration towards dictatorship.
Corruption is thus a major threat to a society – it threatens the liberty as well as the contentment of most citizens. At the same time, it causes suppression of democracy as a way of public administration which is managed by the citizens and for which the citizens bear responsibility. Summing up, in a democracy, as much as in any other kind of public administration, corruption is inadmissible.
Prevention of corruption must be a part of all activities of democratic public service, because the very continuation of democracy depends on it. There are very strong preventive instruments against corruption. These are the instruments which we call “civic instruments of democracy” (see Section III). If implemented, full access to all information about the activities of public administration for all citizens, the obligation for representative administrative bodies to have all decisions examined by public debate and civic control would together have an extremely strong anti-corruption power. The other civic instruments of democracy – civic activity, education about democracy and election of representatives who can be trusted by the citizens – also have considerable anti-corruption potential.
Full access to information and public debate about the acts of public administration, performed obligatorily before the adoption of decisions, along with the obligation to respect the results of public debates, would by themselves practically rule out corruption. Corrupt projects regularly require secrecy – only in exceptional cases can the public and the media be fooled and made to accept a corrupt project in full transparency. Particularly with the more important projects and tasks of public administration it is out of the question that no one would alert the public about the corrupt nature of a project. Once this happened it would be very difficult to push through such a project – and this holds even under the present state of democratic public administrations.
In cases in which anti-corruption protections fail democracy must also have instruments to uncover corruption and punish it. To develop such instruments in a democracy is also the responsibility of the citizens. The citizens must therefore create an efficient control system, or see to it that such a system is formed by their representatives. The penalties for proved corruption ought to be appropriately severe. A representative or official caught in corruption should doubtlessly be expelled from public administration, as the main requirements for this work ought to be honesty and frugality.
Corruption is omnipresent in the Czechlands today, at all levels from the villages to the country government, and from simple bribery to organized networks influenced from abroad. The journalists uncover new cases on a daily basis. Every year the Czech internal intelligence service BIS warns about the corruption threat, including its foreign dimension, particularly from Russia. The political parties are full of promises how they will deal with corruption – but only before elections.
Corrupt networks were formed here already since the beginnings of the privatization process of the early 1990's. Some of them still operate, some have disappeared, and new ones are being formed. The uncovered cases show that high officials of the former Communist regime and former officers of the Communist secret services very often participate in these networks, but also young people who grew up after 1989. Often, these networks are linked to the extensive Russian secret services and influence networks.
Straight and effective organization of public administration has not been the goal of most prominent Czech politicians after 1989, with the possible exception Vaclav Havel and a few others. The goals of present Czech politicians are above all to gain power and keep it. But this is in itself already abuse of the authority delegated to the politicians in the elections by the citizens.
The civic instruments of democracy are weak in the Czechlands, primarily because they are not even properly established. The law about the free access to information about the activities of the public administration is toothless. The politicians and public officials are not obligated to publish the information about what they do – according to law, they are only expected to provide the specific piece of information some active citizens request. But at that point it is usually late, the corrupt act has already been committed. Preliminary public debate about the tasks of public administration is conducted only in very rare very visible cases. Civic control of the public administration is minimal, and practically non-existent at the higher levels of the administration. The citizens are mostly unaware that public administration in democracy is their own, that they are responsible for it, and that their representatives are their employees and not their rulers.
The Czech society will become able to get rid of the described systemic corruption only after a critical part of it will grasp the essence of democracy, will decide to act honestly and will select upright representatives and officials to serve in the public administration. We do have a model which shows that such a goal is not impossible – it is the 19th-century building of Sokol. Its goal was physical proficiency then, but with a list of moral principles attached, and under the ancient rule “mens sana in corpore sano.”
The third group of the principles of democracy relates to the subject matter of the democratic administration of public affairs. This is, quite simply, public service. In a democracy, the citizens are responsible for all public administration, so it follows that the citizens must retain as much decision-making about the administration of public services in their own hands as possible.
The subject matter of democracy is public service, and the responsibility for providing it lies on the citizens.
In today's world, the citizens of countries take it for granted that democratic public administrations provide public services. However, the idea that they themselves should bear responsibility for it is more or less unknown to them.
The absence of citizens in the process of organization and provision of public service is a fundamental flaw in the existing models of democracy. In these models the citizens elect their representatives, but then cede all responsibility to these representatives, and even explicitly, constitutionally, give them decision-making power over public administration. The constitutional framework usually asks no more from the citizens, and even fails to provide space for any further civilian activity beyond the voting for their representatives. The constitutions of democratic countries fail to provide their citizens even with any control authority. We will find little more than the petition right in them. The elected representatives thus receive excessive freedom of action which creates conditions for corrupt temptations. The quality of their public service then corresponds not only to their knowledge and abilities, but very importantly also to their moral integrity.
Democracy becomes possible when, for some reason, the reign of a ruler ends. At this point, there is nobody around but the citizens themselves who can take up the responsibility for what comes next, and particularly for the form of the next public administration.
When the citizens do not take advantage of the moment, soon a new ruler appears, only to the continuation of the citizens' dissatisfaction. If, however, the citizens are ready, they have a chance to establish democracy, and can try to do so well. The prerequisites for a successful establishment of democracy are having a good concept of democracy and then setting up into effect the civic instruments of democracy. The main civic instruments of democracy are
We devote separate space to all these instruments in Section III, Civic instruments of democracy.
All activities of public administration which the citizens may desire have the nature of a service. They are services which the citizens cannot secure themselves but, at the given level of the development of their society, they wish to have them provided. The citizens desire to have roads, schools, hospitals, courts, water supply, electricity and, today, quite a few others. Together they can be described as social infrastructure. They are services to which the citizens are willing to contribute money and their own work to, but which they also wish to have provided in good quality, frugally and justly. They certainly do not wish to have their money wasted by public administration, they do not ask for unnecessarily expensive services, and definitely do not desire their public administrators to invent services which it is uncertain that the citizens need. In a democracy, the decisions about what public service does must be sanctified by the process of democratic decision-making based on public debates, with unlimited opportunity of citizens' participation in such debates. The decisions also must not be corrupt.
State administration provides public services also in dictatorships, but there it additionally and preferentially secures the continuation of the dictatorship. Present-day democracies also suffer from such phenomena. In these models of democracy the powerful rule, to some extent, much like in a dictatorship and seek ways how to ensure the continuation of their rule – by the infiltration of political parties or the establishment of new political parties designed to serve their purposes, by all kinds of sophisticated adjustments of the election laws or the regulation of the flow of information about the work of public administration, by various tactical procedures excluding the citizens from participation in public administration and keeping them passive, by pre-election promises never meant to be fulfilled, and by other manipulative methods. Truly democratic public service must never allow the implementation of any such tricks designed to prolong and expand the influence of the powerful.
We distinguish seven basic spheres of public services which a democratic public service should provide. Five of them are services which are indispensable in democracy:
The remaining two spheres also contain services without which we cannot today imagine good public administration:
All along it must be kept in mind that the decisions which services will the democratic public service provide belong to the citizens, who should make them in the democratic decision-making process through public debates. In this way the citizens should deliver to their representatives and other employees and suppliers their “civic contract.”
In all its work a democratic public service must respect the fundamental principles of democracy: it must take care that the citizens' freedom in their private life is ensured in a just social environment, and must take care that mutual respect is maintained both in its relationship to the citizens and in the relations among the citizens in general. Public service must be fully transparent, and it ought to work smoothly, frugally, without corruption. It should certainly avoid ideological excesses, such as we know in our present models of democracy, which lead to cancellations of the projects of political opponents after the next elections.
Every democratic public service must create many institutions to provide the needed public services – schools, hospitals, police departments, courts, and others. It will, however, be wise, for any democratic public service, to subject all such institutions to thorough checks in public debates, to make sure that they are indeed needed, and how large they need to be. Today's ministries and similar permanent institutions raise serious doubts about their utility for democracy, and also as grounds for organized corruption. The task of creating proposals for the solution of many of the duties of public service, or of assessing such proposals, may be better served by one-time hiring of expert groups. It cannot thus be excluded that it will be advisable to considerably limit the number and size of permanent institutions of public service, while, of course, making sure that their valuable experience, often developed over long periods of time, is retained.
The public service formed by citizens in a democracy must be performed with the help of various institutions. So also, the first modern constitution, the American one, established several basic institutions and thus created the legal entity called the “state.” These basic American institutions were two chambers of Congress as legislative institutions, the office of the president and the government departments as executive institutions, and judicial institutions – the supreme court and lower courts, whose formation was entrusted to the Congress.
The American choice of basic institutions – legislative, executive and judicial – has later been adopted by other democracies. It is, however, a choice which only modifies previous monarchic models. Monarchies, too, had their governments, legislative assemblies and courts. The monarch governed and had decisive executive power – now, in the United States, the country was governed by the president and his government, elected by the citizens. In the monarchies, too, the nobility and later also other more powerful citizens gradually gained various privileges secured by laws, and since the middle ages they met in assemblies wielding some legislative authority. Now, according to the new American Constitution, such assemblies were elected by all the citizens.
The administrative institutions arising from the earlier monarchic patterns do not suffice for democracy, however. Democracy requires the creation of institutions which will correspond to its own principles, and primarily among them to the decisive role of citizens. In a democracy, the concept of government must be replaced by the concept of public service.
The only direct instrument allowing the citizens to establish institutions are elections. The institutions from which the citizens will ask to provide public services for them they will thus have to form with the help of elections. Since the citizens can only secure public services by employing representatives, the first necessary step they must do is to elect bodies of representatives which they will be able to entrust with providing the services. We shall call them executive assemblies.
The immediate next step must be a measure preventing corruption. The American Founding Fathers were also aware of this need. The anti-corruption instrument they chose was to be the separation of the authorities (“magistracies”) which they then considered to be fundamental – the executive, legislative and judicial magistracies. However, in the Constitution they finally approved in 1787 they did not uphold this Madisonian rule, and separated only the executive and legislative authorities. The establishment of the courts they put in the hands of the Congress. Moreover, the Madisonian magistracies became “powers” in the Constitution, thus even more closely copying the monarchic pattern. The European and other later democracies no longer bothered too much with considerations of anti-corruption measures – their constitutions mostly just establish parliaments which then appoint governments. Little then remains of the Madisonian principle of the separation of administrative authorities (“magistracies”) intended to prevent corruption.
Real anti-corruption effect can only be reached by mutual checks of authorities relating to the same activity. When a government assigns an important contract to a bad company in accordance with law, neither the parliament nor the courts can check such a corrupt decision. When a court reaches an unjust decision, which is in accordance with the letter of law, it is similar. And cases where injustice of this kind happens are frequent. The partial disjunction of the responsibilities of the legislative, executive and judicial institutions shows that the mutual control of the institutions of democratic public service ought to be designed differently.
The citizens developing a democracy must therefore look for new ways how to prevent corruption – the abuse of delegated authority in the elected executive assemblies and generally in public administration. Entrusting anti-corruption control of the activities of the assemblies to these bodies themselves, as we see in the present Czech Constitution, and probably most other democratic constitutions – this is as if a construction manager leaves his job for a pub the first thing in the morning. To prevent corruption, the citizens must establish separate institutions, fully independent of the executive assemblies. They possess only one instrument to do this – elections, as we have observed above. So, they must create another elected system of assemblies, parallel with the executive ones, which they will entrust with control and to which they will give the necessary control authority. We shall call them control assemblies.
In the process of providing public services the assemblies at all administrative levels will have to decide which tasks they will take up, look for solutions to these tasks, and decide how they will be implemented. The instrument of democratic decision-making is public debate, and public debates will have to be mediated by the media. In order to carry out the tasks of public service the media will have to provide information about the activities of public service, about the tasks chosen, the proposals of solutions, and also seek new ideas, inspiration and new proposals of solutions, participate in the search for best solutions, independently assess all proposals as well as adopted solutions, watch how are the adopted solutions implemented and how successful they are, inform about it, and perform what is necessary in connection with all these tasks. They will have to be impartial and miss nothing of importance.
Such work the citizens cannot entrust to private media, and they can neither entrust it to media established by the executive or control assemblies. The work of the media must be completely independent, too, to ensure for the citizens that no information will be concealed by the representatives or officials, and that the decision-making about public service will be performed as reliably as possible. So, we believe it to be indispensable for democracy that the citizens establish one more parallel independent representative system, media assemblies, and entrust it with the organization of civic media. These media ought to secure of full flow of information about the work of public service to all citizens, manage public debates, and, in these respects, contribute to the education about democracy.
In this way democracy will gain three separated systems of institutions of public service, entrusted with three independent sets of administrative authorities, but all three with responsibility for the whole extent of public service, just as Madison might wish. They will be three sets of administrative authorities mutually checking one another, but different from the three sets of authorities arrived at by the political thinkers of the times before the creation of the United States of America. It will be a triplet of administrative authorities informed by the shortcomings and flaws of all the modern democracies that have arisen since then.
The three above-described systems of elected assemblies – executive, control and medial – would then form the framework of the institutions of democratic public service, a democratic state. To implement public service these assemblies would, in mutual cooperation but mutually controlling one another, set up other institutions and assign them the various tasks of public service, such as, for example, schools, police, army, hospitals, and many others, most of which we are already familiar with.
The system of democratic institutions must be formed as simply and frugally as possible, so that also its control will be easy. Complicated structures are easier to abuse for corruption. It is likely that public debate may eventually lead to abolishing some of the now existing institutions – and it is, of course, also possible that some new institutions may be established. It may, for example, turn out that the ossified structures of today's government departments are not suitable for democratic decision-making, as already suggested above.
Some institutions, on the other hand, may require greater permanency to be effective than that provided by the existing system of ever-changing governments with contradictory ideological goals, often oriented more to serve the next election efforts than conscientious public service. In such institutions it will then be prudent to care for the growth of qualification of the employed workers, the forming of an environment of creative freedom and motivation, encouraging of competition of thought, learning from the successes of others, protection against arbitrariness of politicians and superiors or even conflicts of interest, or exploitation of most modern technologies.
All institutions of public service must always respect the basic principles of democracy, in all their work. The creation of democracy may thus become an attractive creative process in which a broad spectrum of citizens with good intentions can participate.
The basic principles analyzed in the preceding chapters ought to be put into the foundations of the legal order of democracies. Under the present conditions this means they should be put into constitutions whose provisions are usually protected against rash changes and so are more durable than ordinary laws.
Democratic constitutions should therefore contain provisions which ensure mutual respect for their citizens, both in their private relationships and in their relations with the institutions of public service. Further, they should also contain provisions ensuring shared responsibility of the citizens for the decision-making about public service, justice and an appropriate extent of freedom.
Beside the basic principles of mutual behavior a democratic constitution should also define the subject matter of democracy – which is public service, and establish the key institutions needed to provide public service, that is establish the democratic state.
Summing up, a democratic constitution ought to include a philosophical part – defining the basic principles of mutual behavior in the society, and a practical part – defining the subject matter of the work of public administration and establishing the most important administrative institutions to implement it, all with a special emphasis on the creation of instruments to prevent, and eventually suppress, corruption.
The considerations of the preceding chapters show how poorly the idea of democracy is thought through. This is reflected in the contents of the Czech Constitution and its shortcomings, some of which are cardinal.
The Czech Constitution was formed on the very simple ground plan of the American Constitution of 1787 – it established some institutions of public administration, and thus the legal subject called state, with the added “Charter of Fundamental Rights and Basic Freedoms” as its inseparable part. It is truly strange that no rethinking of this fundamental concept of a democratic state has occurred in more than 200 years. A certain innovative attempt was the creation of the draft of a European Constitution, which, in the end, was not approved. However, not even this proposal anchored the basic principles of democracy identified in the preceding chapters. To some extent, it only covered the subject matter of the institutions of public administration.
The Czech Constitution thus, in its simplicity, does not anchor the basic principles of democracy and cedes their eventual enactment to the unstable legislative assemblies, usually succumbing to the influence of the power groups taking turns in power. These principles, however, do deserve the stronger constitutional protection and their absence in the Constitution substantially weakens the democratic character of public administration.
We see as the most serious flaws of the Czech Constitution that
Beside these fundamental flaws the Czech Constitution contains a number of other lesser shortcomings.
Every human community must have a code determining the basic rules of mutual behavior valid for the whole community. All ancient societies known by history already had such codes: there is the Hammurabi Code, the Jewish Old Testament with its Ten Commandments taken over by Christendom, the ancient Greeks had their city codes, “politeia”, and the ancient Romans produced a legal order which developed into modern legislation. All this inheritance led to the code of mutual behavior adopted in our Mediterranean civilization with its core in the Commandments of the Old Testament. All these commandments express various aspects of respect among people, or respect to the fundamental spiritual principles. We can thus say that with regard to mutual behavior among people the tradition of our civilization is mutual respect.
It is ironic that the American founders of the new democratic ways of administration of public affairs missed out on putting the obligation of mutual respect into its foundations, even while they were themselves a community of stern protestant morality. Instead they based, in their Constitution, the rules of mutual behavior on the secondary concept of “human rights.” Of course, the rights they enumerated in the first ten amendments to the Constitution, known as the Bill of Rights, are all rights of American citizens in their relations with the institutions of public administration, with the government. Today, ever since the adoption of the Universal Declaration of Human Rights by the UN, the charters of human rights legislated around the world have swelled by a number of “rights” which allow people to demand assistance from their communities – such as rights to work, health care, even welfare.
As noted, mutual respect is the central principle of the rules of mutual behavior in our civilization. In the Czech Constitution, however, the establishment of the obligation of mutual respect is missing. Instead of mutual respect or moral principles the authors of the Czech Constitution also chose the awkward roundabout way of enumeration of human rights in the Charter, being, of course, obligated to do so by the Czechoslovak signature of the UN Declaration.
Nowhere in the Czech Constitution is it established that the citizens must not violate the rules of mutual behavior. On the contrary, it is repeatedly emphasized in the Constitution that the citizens may do everything that is not forbidden by law, that means by a lower legal norm, and “nobody may be pressured to do what is not imposed by law” (Art. 2 of both the Constitution and the Charter, and also Art. 39 of the Charter). It is, however, impossible for any legislature to enumerate all wrongful conduct, so that the Constitution not only refers to lower legal norms but, moreover, it guarantees immunity for all wrongful behavior which the legislators do not manage to include explicitly in the laws. Yet, such situations develop frequently. Repeatedly, citizens become victims of wrong or even intentionally evil behavior without the possibility of appeal, and with no way to achieve redress and compensation for the harm suffered.
Stipulating the obligation of mutual respect in the Constitution would easily correct this shortcoming. This obligation is well and universally known in our society but, since it is missing in the legislature, the individuals who violate it can act with the feeling they are not really guilty. As soon as it would appear in the legislature, it would soon be reinforced by court precedents, and a powerful barrier would be built against unscrupulous behavior. At the same time, the constitutional provision of mutual respect would in no way prevent enumerating various individual prohibitions or rights in the lower level legislature.
Corruption, which we define as abuse of authority delegated by the citizens for somebody's unjustified benefit, is the greatest threat to democracy. It is therefore necessary to place the basic elements of protection against corruption into the country constitution, so that they are better secured. Yet, there are no such provisions in the Czech Constitution! The Czech Constitution does not anchor the civic instruments of democracy (see Section III), which would have enormous preventive anti-corruption effect, nor does it establish any effective anti-corruption institutions. It stipulates no separation of the basic institutions it establishes, considered as anti-corruption measure by the American Founding Fathers – all authority (“powers” in the language of the Czech Constitution) is put into the hands of the lower chamber of the Parliament, the Chamber of Deputies.
The basic institutions established by the Czech Constitution are legislative, executive and judicial, following the model of the American Constitution, but, unlike in the American model, they are not appropriately separated. More seriously, even if they were completely separated they could not have the needed anti-corruption effect because the objects of their authority do not match – as we have pointed out in chapters II.4 and II.6.
Mutual separation, independence, control and balancing of the authority of the institutions established by a constitution which form the core of the state is, however, in general a good idea. So we also consider it wise to use it in the constitutional arrangement of the state. But it is desirable for the basic institutions established by a constitution to cover the same field of responsibility, which ought to be the whole area of democratic public service, as we propose in Chapter II.6. According to this proposal, the three mutually independent basic institutions ought to be the systems of executive, control and media institutions, all elected by the citizens. Only in this way can the mutual control and balancing of such institutions be truly effective.
The constitutional protection is also fully deserved by the civic instruments of democracy, here treated in Section III, because these instruments would, with proper establishment and arrangement, have enormous preventive effectivity. The basic civic instruments of democracy are
The initial motivation and goals of a democratic revolt are fulfilled when the rules of mutual behavior based on mutual respect are secured in the society, and corruption of the public administration is suppressed. But it will still be useful to give them some separate consideration.
Emotionally, the most pronounced goal of a democratic revolt is liberty. The citizens revolt against the oppression and lack of liberty of a dictatorship (of the ancient Greek “tyranny”). The liberty involved here is liberty from oppression, not liberty of action. Liberty of action, as we have shown in Chapter II.1, cannot, in fact, be limitless – it has its natural limits at the boundaries of the living space of other people and beings, and also at the boundaries of protecting the treasures of inanimate nature and respecting spiritual principles.
The more profound and central requirement of the citizens at the moment of their democratic revolt is the requirement of justice. The citizens understandably require the elimination of the unjust privileges of the dictators and their fellow travelers and puppets, but when they are wise they also require justice in general in all activities of public service and all conduct in the society. When accomplished, such justice would, among other benefits, secure adequate – just! – extent of liberty.
Another key motivation of a democratic revolt, often not fully grasped or articulated, is the takeover of the responsibility for public administration by the citizens. The thinking is: the dictator's conduct is not acceptable, we, the citizens, must take the administration of public affairs into our own hands (“We the People” of the American Declaration of Independence).
The Czech Constitution has not been constructed along these lines. Beside establishing the basic institutions of public administration, it guarantees, also following the model of the American Constitution from the end of the 18th century, a number of rights of the citizens. It establishes also the right to freedom, but without distinguishing freedom from oppression and the general freedom to act arbitrarily. As far as justice and civic responsibility for public administration, the Czech Constitution is silent.
Justice is a deep fundamental human desire not only at the time of democratic revolts but permanently. It is an easily understood principle, which is a part of the yet deeper principle of mutual respect. Providing justice is also one of the most important public services within the area of abiding by the rules of mutual behavior accepted in a society.
The importance of securing justice is underlined by the choice of the judiciary magistracy, later “power,” among the main three administrative authorities already in the considerations of the American Founding Fathers before the approval of the American democratic Constitution of 1787 (see Madison's List of Federalists No.51). At the time, the Founding Fathers were looking for a mechanism to prevent corruption – by the separation and mutual independence of the three administrative authorities (“magistracies”) – executive, legislative and judiciary. Later, in the Constitution itself, the independence of the judiciary authority was not included – the establishment of courts was entrusted to the legislative Congress.
The privileged position of the judiciary “power” next to the executive and legislative “powers” from the 18th century was adopted by the present Czech Constitution, but without any reference to the original intention to suppress corruption, and so also without any mention of justice or public service.
Instead of the obligation to ensure justice the Czech Constitution stipulates, in Art. 1 of its Charter, “the equality in rights,” and then places the rights enumerated in the Charter under the protection of the judiciary power by Art. 4 of the Constitution. These provisions thus give constitutional protection to ensuring justice in cases when citizens claim their rights. The securing of justice is thus moved into the somewhat vague area of protecting rights, which we take up below. Citizens' requests for justice are not directly protected by the Constitution – when the Constitution is looked to as a protection of last resort in seeking justice, the citizens must find a violated right in the Charter, and attempt to prove that the offender did indeed violate this right of theirs. It can quite easily happen that their right is not explicitly formulated in the Charter, but even when it is enumerated and precisely formulated, proving its violation is often complicated and uncertain, while the whole process is lengthy and expensive. Thus, in many cases, the citizens do not even attempt to claim their rights and achieve justice.
The absence of the obligation to secure justice is therefore an essential flaw of the Czech Constitution.
The responsibility of citizens for public administration is a defining element and the foundation of democracy. Yet, in the constitutional arrangement of contemporary democracies it is suppressed. From the moment when the citizens get rid of their dictatorial rulers it is themselves who bear the responsibility for the way of public administration they will adopt – there is nobody else around to do it! It is, however, also a fact that no theory of democracy has so far been available with which the citizens could prepare themselves for the transition to democracy, no usable literature, and so also no education about democracy which could help the citizens with such transition. Another fact is that the power groups which dominate the administration of today's democracies have no interest in letting the citizens to participate in this administration.
No wonder then that we look in vain for the responsibility of citizens even in democratic constitutions. In the Czech Constitution this task is probably to be answered by Art. 21 of the Charter, which stipulates the right of citizens to participate in public administration, “directly or through elected representatives.” This right is void, however, because nowhere in the Constitution nor in further legislation is it fleshed out by following legislation which would facilitate practical implementation. The same is true about the clichés of Art. 1 of the Constitution – “the people is the source of all state power,” and Art. 6 of the Constitution – “political decisions arise from the will of the majority expressed by free voting.” The only participation in public administration that Czech legal order enables are the elections, but they are organized in such a manner that, with the exception local elections in small communities, the citizens have no possibility to elect representatives they know and can trust. (See below and in Chapter III.3.)
The responsibility of citizens for the management of public administration cannot be established as a “right” in a constitution. It is a self-evident matter of course because in a democracy it is the citizens who decide, and there is nobody else from whom such a right could be claimed. A democratic constitution ought to confirm the fact of the responsibility of citizens by a statement of the kind: “The responsibility for democratic public service is born by the citizens themselves.” In addition to such a provision the democratic constitutions should also establish the instruments the citizens can use to manage their public service. (See further in Section III, Civic Instruments of Democracy.)
The fact that the Czech Constitution does not stipulate the responsibility of citizens for public administration, nor does it establish the instruments with which the citizens could fulfill this responsibility, we consider to be another of its cardinal flaws.
The desire for freedom is the primary motivation of democratic revolts – the desire to be freed from the oppression of rulers. In another of its meanings the term “liberty” means freedom to act without limits – but liberty understood with this meaning is not desirable in any human community. As already said above, the fundamental principle of mutual behavior among people is mutual respect, and this respect sets the proper limits to liberty.
The Czech Constitution devotes much space to liberty, in contrast with its silence about justice and citizens' responsibility, and liberty is even put into the title of the Charter. Superfluously, because all liberties enumerated here are also rights. Unfortunately also, the freedom from oppression is not distinguished in its formulations from the freedom to act arbitrarily.
The protection of rights was originally demanded in the thinking of the political philosophers of our civilization against the rulers, against the might that oppressed; in this form it was also added into the U.S. Constitution in 1791.
By their signature of the Universal Declaration of Human Rights of 1948 states, however, pledge to protect a broad collection of “human rights” enumerated in the Declaration, which includes also protection against fellow citizens, and even claims of help from fellow citizens. By this step states have allowed themselves to be led astray towards creating an environment of claiming rights and benefits. In a parallel development, they gradually started forgetting the traditional requirement of all civilizations – observing moral obligations.
The pitfalls of these steps were not apparent at first, but after decades of their influence their consequences are becoming obvious. The fact that some man-written charters give some rights to people does not arouse as firm an awareness, or even conviction, in the consciousness of people that they must respect these rights, the way the moral commandments upheld by religions for centuries have done. Most people do not know the rights enumerated in the charters of rights and only rarely are aware what follows for them from the thus chartered rights of the others. This must have contributed to the striking moral decline, moral relativism has risen, and the attitude of “multiculturalism” has appeared, challenging not only the traditional morality but even the legal order of our societies. (See in more detail in Chapter II.3.)
The Czech Constitution further broadens the opportunities for claims by other provisions: Article 2 of both the Constitution and the Charter stipulates that “every citizen can do what is not forbidden by law and nobody may be pushed to do what is not stipulated by law.” Thus, in addition to all the rights enumerated in the Charter Czech, the citizens also have the right to do everything that the legislators do not manage to forbid by law, regardless of whether such acts are harmful or evil. By this provision the Czech Constitution goes far beyond the corresponding provisions of the Declaration. First of all, the Declaration emphasizes in its preamble freedom from “tyranny and oppression,” and in Art. 29 stipulates that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” This formulation is also imperfect because it only assumes the existence of laws requiring moral conduct – but the meaning of these provisions is obvious. Not so in the Czech Constitution – if the authors of the Czech Constitution intended to adopt this provision of the Declaration, they did so very carelessly.
Similarly, harmful is also another provision of Art. 2 of the Constitution and the Charter, stipulating that the power of the state may be “applied only in cases, within limits and in ways given by law.” Not only that “power” should have no place in democracy (public service ought to be provided on authority delegated by the citizens), but no collection of laws can encompass and stipulate all the necessary activities of the institutions and workers of public administration. This provision, if really implemented, would effectively prevent any creative approaches to public administration. The protection against abuses of the institutions and employees of public administration must be secured by other anti-corruption instruments.
The substitution of moral obligations by the protection of human rights by the Charter of rights in the Czech Constitution is thus another of its major flaws, even if derived from the Declaration adopted by the international community.
Beside these fundamental flaws, the protection of the broad spectrum of rights in the spirit of the Declaration has a number of further drawbacks:
The original first democratic constitution, the Constitution of the United States, contained only the establishment of some basic institutions of public administration, legislative and executive. This created a subject we call a “state.” In the next four years the U.S. Congress added the first ten amendments to this Constitution, called the “Bill of Rights,” ratified together in December 1791 – as a compensation of the power given to the government and Congress, and a measure for the protection of citizens mostly against the government.
According to this simple, almost primitive, basic model other constitutions have later been formed for new democracies. Constitutions established the democratic states and, as an addendum, charters of rights were added to them. The Czech Constitution also followed this model.
The framers of the American Constitution were well aware of the danger of corruption to which all the previous congresses of the American colonies succumbed. Protection from corruption was to be secured primarily by the separation of three administrative authorities, legislative, executive and judiciary – called already in the original Constitution “powers.” Other measures included the relatively frequent elections for the House of Representatives, doubling of the legislative chambers of Congress, or the lengthiness of the legislative procedures. All these measures are described by the term “checks and balances.” These measures served the United States of America fairly well for some 200 years. Today it appears, however, that they did not serve well because they are effective, but rather because the American society used to have high moral standards. With the decline of morals corruption started penetrating the U.S. constitutional institutions – until it prevailed, as we could observe watching the U.S. elections of 2016. The American administrative institutions have apparently become dominated by the “establishment,” which is not clearly defined but, as we can read quite openly, is formed by the rich financial circles. “Money talks.”
The Czech Constitution adopted the simple constitutional model of 18th century America, and, additionally, its authors did not bother to incorporate anti-corruption measures. Mainly, they failed to carry over the idea of the separation of the three key “magistracies,” and gave all power to the lower chamber of the Parliament, Chamber of Deputies. Mutual control and balancing of “power” is thus missing from the Czech Constitution, even while it is generally assumed that it is contained there. There are some other balancing elements contained in the Constitution, but they are of secondary importance. The most important among them is the establishment of the Constitutional Court, then certain independence of judges (provided, however, by law, a lower legislative norm), to a lesser extent some measure of independence of the Czech National Bank, then, unintentionally, the multitude of the institutions established by the Constitution with potentially conflicting interests, and occasionally the lengthiness of the administrative processes.
Further, the Czech Constitution, somewhat similarly as the U.S. Constitution, fails to determine the subject matter of the work of the institutions it establishes, and so inserts the element of arbitrariness into the administrative process. On the other hand, it unfortunately provides constitutional anchoring to political parties on whose “free competition” it builds the whole “political system” – in this case unlike its original American model. It also provides wide latitude for the form of elections, and so has facilitated the creation of election laws, which have made it possible for nontransparent power groups to basically take over the state.
The subject matter of democratic public administration is public service. It is not to rule or govern. Keeping in mind what has already been said in previous chapters these assertions are self-evident – but the provisions of the Czech Constitutions do not correspond to them.
The Czech Constitution establishes the “state” and gives it the “state power,” but it gives no attention to what purpose it establishes it for. This is another one of its fundamental flaws. It fails to stipulate that the sole task and subject matter of the institutions of public administration of the state is public service. It also fails to specify what is public service.
Public service is the only thing the citizens need from their public administration. This fact should naturally be anchored in a democratic constitution. Democratic constitutions should stipulate that the only task of citizens' representatives and of the administrative institutions is to provide public services. The basic sectors of public service should then also be determined in the constitutions. They are
Democratic public service must be performed by representation, and institutions of public service must be created for this purpose. The representative assemblies must be established by constitutions and further institutions of public service can either also be established by the constitutions or can be formed by decisions of the representative assemblies.
The aggregate of the institutions of public administration – in proper democracy institutions of public service – is called “state.” The institutions of democratic public service ought to have their delegated authority determined by the citizens at the time of their commencement. The delegated authority must not mean power – the authority of democratic public service institutions remains limited by their establishment, and the institutions must not expand nor reduce their authority, and must not add any new authority. The decision-making in a democracy must remain, to the largest extent possible, in the hands of the citizens. A democratic state thus has not power, it only has the authority delegated by the citizens, as it is defined in the constitution or in democratically approved laws. The difference between delegated authority and state power corresponds to the difference between democracy and dictatorship.
With regard to the establishment of the basic institutions of public administration the Czech Constitution contains one of its worst flaws. In Art. 2 it hands over “state power” to “the bodies of the legislative, executive and judiciary power.” In paragraph 3 of this article it limits thus submitted power by the condition that it may by applied only “in cases, limits and ways prescribed by law,” but the laws are determined by the state power itself. The Constitution does not take into account any responsibility of the citizens – the phrase “the people is the source of all state power” of Par.1, Art. 2 of the Constitution is but a sop to the desire of democratic appearance with no practical impact. In practice, this arrangement, combined with the other provisions of this Constitution, helps to give power to the groups which control the political parties. The only limitation of thus gained power is the possible personal decency of the elected representatives and the necessity for the political parties to cultivate the electorate.
The sole content of the U.S. Constitution of 1787 is the establishment of the basic institution of public administration. This Constitution has then become the model for all later democratic constitutions. Despite the conscious efforts to limit the power of those institutions by mutual separation already this first democratic constitution incorporates the mistake of handing over of power to these institutions. The Czech Constitution repeated this mistake, while its authors completely ignored the need to limit the danger of corruption of these institutions provided with “state power” at least by their separation and mutual control.
The purpose of the activities of political parties is believed to be the promotion of ideas about how to carry out public administration. Ever since the American beginnings of modern democracy, however, the political parties promoted mainly their group interests, in those days particularly in connection with the problem of Southern slavery. The Federalists of the northern states hoped that with the help of the federal government they will succeed to abolish slavery, while the Republicans of the southern states insisted on preserving enough independence for the individual states of the Union to be able to keep slavery.
The constitutions and the associated election and other laws of the present democracies are mostly written in such a way that only political parties can apply for participation in the representative assemblies responsible for public administration. At the same time, the election campaigns are so costly that the political parties have become tools of rich power groups. Any potential individual candidates must then have comparably strong financial base to succeed. And nobody seems to worry about such supremacy of the rich and powerful! All the rest of the citizens are, under these circumstances, excluded from participation in the “democratic” public administration.(8)
In fact, even the idea that political parties can play a useful role by promoting ideological currents of thought is wrong. Democratic public service ought to seek such solutions of its tasks which would suit as many citizens as possible. This is in direct conflict with promoting any currents of thought or ideologies, because they always express the interests of only a part of the society.
The only benefit of the existence of political parties can then be the enrichment of public debates about individual problems of public administration, similarly as the contributions of other non-government organizations do. When, however, the constitutional and legal arrangement of a country enables the political parties to obtain influence in public administration, it is a misfortune for the society.
The Czech Constitution puts the whole Czech “political system” into the hands of political parties – according to Art. 5 of the Constitution the Czech political system is based on the “free competition of political parties.” At the same time, the Czech political parties, with their narrow membership bases, have very strongly the character of corrupt interest groups. This provision is therefore one of the gravest flaws of the Constitution.
Another serious flaw of the Czech Constitution is the absence of definitions of the terms used and the ambiguity of its formulations.
Key provisions of the Constitution are ambiguous or even fail to convey any meaning – when they use undefined terms like “people,” “power,” “liberty,” “right,” “democracy,” and others. This vagueness of terms only assists the intentions of the ruling power groups, which gladly pass it into further legislation.
The ambiguity of formulations also has harmful consequences, because high constitutional officials can misuse it for detrimental activity. This has so far proven to be the case mainly in the acts of presidents Klaus and Zeman. In some cases, like the provision about the appointment of the Prime Minister or the dissolution of the Chamber of Deputies, such misuse can have very serious consequences.
(8) The problem is not exclusively Czech: „Logrolling, handouts, and party discipline in smoke-filled rooms far from the public’s view almost always will be enough to pass new laws. But the price of this productivity is that it transforms our republic from one devoted to justice and the general good into a government of the special interests, by the special interests, and for the special interests.“ (James Wallner, Vice President, Heritage Foundation, 2016