In his article "A Constitutional Anomaly in the Czech Republic?" (EECR, 
Vol. 4, No. 1, Spring 1995), Cass R. Sunstein raises some questions 
about the status of constitutional rights in the Czech Republic. He is 
right in stating that in some postcommunist countries "it is far from 
certain that leaders will deem themselves bound by constitutional 
provisions that they find inconvenient or that they dislike." In my 
opinion, this view is correct in general, but it does not characterize 
the situation in the Czech Republic accurately. On the contrary, this 
country can be cited as an example of the successful transition to the 
rule of law. 
	The Charter of Fundamental Rights and Freedoms, adopted by the 
parliament of the Czech and Slovak Federal Republic on January 9, 1991, 
has been a landmark in this process. After the dissolution of the 
federation in December 1922, the Czech Republic adopted a new 
constitution. This constitution does not contain any guarantees of basic 
rights; however Art. 3 provides that the Charter is "a part of the 
constitutional order of the Czech Republic." Referring to this passage, 
Cass Sunstein doubts whether the Charter has the same legal quality as 
the constitution itself. This point finally leads to the question of 
whether parliament and government are bound by the basic rights included 
in the Charter. 
	In my opinion these considerations are rather theoretical ones. In 
the constitutional history of Czechoslovakia, as well as in some 
European countries like Austria, one can find the category of 
"constitutional laws." These laws are not a formal part of the 
constitution itself, but they often share its legal status. Furthermore, 
the Czech constitution expresses "the respect for the rights and 
freedoms of the individual and the citizen" in its first article. 
	Basic rights are one of the most important elements of 
constitutional regulation and even of the constitutional judiciary. If 
parliament or the executive branch of government exceeds the scope of 
its powers and violates basic rights, each Czech citizen is entitled to 
complain against this act in the Constitutional Court. Art. 87.1 of the 
Constitution literally expresses the right of the Constitutional Court 
to decide complaints "against interferences with fundamental rights and 
freedoms guaranteed by the constitution." In some of its decisions, the 
Czech Constitutional Court rescinded laws because they violated the 
Charter of Fundamental Rights and Freedoms. 
	In his article, Cass Sunstein also expresses his critical attitude 
towards the embodiment of positive rights in the Charter. Indeed, this 
is a very serious problem. It concerns not only the Czech Republic, but 
post-communist countries in general. Positive rights have been a typical 
but not an exclusive feature of communist constitutions. Traditional 
basic rights protect the individual citizen against the power of state 
authorities. Positive rights, mostly concerning the social and economic 
sphere of life, have another function. Obviously, such rights were easy 
to guarantee under the conditions of a state-run economy, since the 
state itself owned all the necessary facilities. However, in a liberal 
state that promotes and requires private initiative and functions in the 
context of a market economy, this is not the case anymore. 
	Although the ideas of a market economy are deeply rooted in Czech 
public opinion, positive rights still seem to be fairly popular as well. 
The second notion is common to all post-communist societies. However, in 
contrast to the constitutions of other countries (e.g., Russia), the 
Czech Charter embodies a clear and quite elegant solution. It includes 
social and economic guarantees (Art. 26 to Art. 35), but Art. 41.1 
provides that the enlisted positive rights are effective only under the 
provisions of specific legal rules. The authors of the Charter made it 
clear, that they considered social and economic interests, while at the 
same time coming to terms with the necessities of a market economy and a 
liberal state. 
				        Joachim Lippott
				       University of Cologne