Daniel Askari | Charles University Faculty of Law, Prague

Repealing a Derogational Provision of a Statute by a Decision of the Constitutional Court: a critical analysis of case law and an outline of possible future solutions

Jurisprudence 6/2015 Section: Articles Page: 32-38

Keywords: Constitutional Court, repealing decision, repeal of a derogational norm, resuscitation of an act, the negative lawmaker

Abstract: The paper deals with the topic of repealing a derogational provision of a statute by a decision of the Constitutional Court as well as with consequences of such a decision. Firstly, it is argued that, within the Czech legal system, it is not a priori impossible for the Constitutional Court to repeal a derogational norm with the consequence of the previously valid law coming back into force. The second chapter is comprised of a summary of the Constitutional Court’s case-law involving the topic at hand and a critical analysis thereof, pointing out the contradictory and dysfunctional elements of the Court’s jurisprudence. Finally, a coherent theoretical model is outlined, attempting to offer a solution to the problem in question. The model is based on categorising the different kinds of derogational provisions; modalities, in which such provisions can be unconstitutional; and legally sound consequences of their repeal by a decision of the Constitutional Court.