Powers and organization of the Supreme Court

I suggested already what functions the Supreme Court of the federation should have in an earlier post about overall form of the judicial system of the European federation, now I will synopticly summarize it, will deal also with organization of court's work and add powers of the president of the Supreme Court to it as I wrote above in the previous post.

Powers of the Supreme Court were basically given by me earlier, so I will namely put them into two groups; other will follow. The powers closely related to the constitution will be in the first group, namely resolving conflicts between the federation and the member states, conflicts among highest bodies of the federation's state power, also conflicts between the federation and the associated states (mentioned earlier), conflicts among the member states and finally adjudicating conformity of laws of the Union and of decrees of the Council of Chancellors as well as of constitutions, laws and other directives of the member states with the constitution of the Union.

The second group will include competencies following from position of the Supreme Court as a supreme member of the federal judicial system, namely hearing appeals from federal courts of second degree, constitutional complaints of citizens about violation of rights given by the constitution and also – which I have not mentioned earlier – conflicts about competency of court between the Union and the member states.

The mentioned division of the Supreme Court's competencies in two groups has its function not only in differentiation between constitutional and non-constitutional matters but also in a way of their hearing. The first group of matters – because of their significance – must be heard in the plenum of all 19 judges, collegia of three judges then suffice for matters of the second group. A question of majorities necessary to adopt a decision follows. It is simple at hearing cases in collegia – if there are three judges and unanimity is not required, votes of two judges are an only possible majority. I consider the same majority of two thirds of votes to be appropriate for a plenum vote (if the plenum hears more significant cases, why it should have a smaller majority?), that is concretely 14 votes (why not 13 I explain below). I do not suppose that it is necessary to determine a quorum, mentioned majorities should be valid in whatever number of present judges which means in practice the less judges are present the more unanimous their opinion must be.

There is another question whether proceedings should be public or non-public. I suppose that it is not necessary that they are public but I leave a decision to the judges themselves, concretely at the President of the Supreme Court when a case is heard in the plenum and at the chairman of a collegium if a case is heard in a collegium. To pronounce a verdict is however something else, it has to be pronounced publicly.

The last two provisions which I decided to insert in this section relate to a procedure of judges. According to the first of them, every judge has the right to suggest own proposal at hearing a case and then the obligation to vote for one of all suggested proposals – it makes to abstain from voting impossible. The second provision gives the right to attach their dissenting opinion to the judgment to the judges who disagree with a result of a voting; this should be valid for hearing cases either in the plenum and in collegia.

Now I move to provisions about the President of the Supreme Court. I wrote in the previous post that the President should be an only judge of the Supreme Court elected directly by citizens and his (her) exceptional position in the Supreme Court should be in accordance with it. Organizational powers are naturally above all the point; I tried to determine them in a way that the president has an influence on direction and decision-making of the court though he cannot get round voting of other judges.

That the president will represent the Supreme Court externally is self-evident so I immediately go over to other competencies and they concern hearing in the plenum. The president of the court should have the right to call a session of the plenum, to chair it, to open discussion and to vote as the first and to charge a concrete judge with writing a decision after voting. Because he should not be a member of any collegium he can vote only in the plenum. Here I asked myself a question whether to moderate discussion and to vote in the plenum is a sufficient possibility to influence the court's direction of opinion. Although I will mention more other administrative powers of the president of the court I reached the conclusion that it itself cannot be a sufficient expression of the president of the court's exceptionality against other judges and that I can dare to assign two votes to him at voting – it is not too exaggerated, the president alone this way cannot outvote other judges, it however symbolicly reflects that he unlike other judges was established in his office directly by the people. Then a majority of minimally 14 votes instead of 13 for pronouncing a judgment in the plenum follows from it as I have mentioned above.

Other competencies of the President of the Supreme Court relate to filling the collegia; he should have the right to place the judges to individual collegia and to determine their chairmen in my suggestion. I determined however one restriction so as the president of the court cannot arbitrarily manipulate with things being heard through transferring judges; this should be prevented with a provision that a judge cannot be transferred to another collegium in the time in which he considers a case but only after pronouncing a judgment. I also leave in the president's hands to determine a work plan of the plenum and the collegia, with a condition that it will not be for a period shorter than two weeks. I added one more to powers of the President of the Supreme Court over the collegia, namely a power at discretion to commit a case belonging to a collegium to plenum's hearing. The president's last administrative competence in my suggestion then is to manage ordinary operation of the Supreme Court, to engage employees and determine their job content; a condition was added by me here that employees assigned as judges' assistants must be educated in law of the Union (with detail stipulated by the law).

A question of temporary replacement of the President of the Supreme Court remains. There is no permanent Vice-President of the court in my proposal. By that reason, I added a provision that the president of the court can entrust anyone else judge with execution of his powers in the time of his absence but with one exception, namely the right to vote. As I have already written two votes of the President of the Supreme Court are expression of that he has unlike other judges direct support of citizens, no other judge should therefore have these two votes at his disposal. But there is a question whether the president of the court would schedule a plenum voting for a time of his absence.

I have no other special power for the president, so a statement remains that – except as above stated – all provisions concerning other judges (including matters about which I have not written yet) should relate to the court's president too.

Rules regulating election of the President of the Supreme Court naturally cannot be absent among other provisions concerning him (her). I believe that it is not necessary to invent anything new and that provisions regulating election of the Council of Chancellors (see here) should be used here, that is to say the majority system of two rounds with a requirement of double majority. The only two differences are in requirements for candidates and in number of citizens requisite to enroll a candidate. A candidate for the President of the Supreme Court has to meet criteria for other judges of this court, it is to say age of 40-70 years and activity in law of the Union of at least 10 years. As number of supporting citizens is concerned I decreased it against the corresponding number at election of the Council of Chancellors because experts of law discipline have smaller chance to obtain broader people's support than representatives of executive public functions. So my numbers are in this case 50 000 supporting citizens (a half of the number required to support  candidates for the Council of Chancellors) from at least three member states (or other members of the federation).

Function of judges of the federal Supreme Court

In the previous post I presented my idea that a supreme court of the European federation should have the function of a constitutional court and at the same time a court of last resort on the top of the federal judicial system. Now I will deal with the concrete form of the court, namely with three questions – how many members (judges) the court should have, for how long time the judges should hold their function and in what way they should be installed in their functions.

I start with the size of the court. What number of judges would be the most suitable for the supreme court of the European federation? The court that I took as an example, the Supreme Court of the United States of America, has nine judges. Such number seems to me however low for purposes of the European federation, especially because a role of European constitutional courts is somewhat broader than the constitutional role of the Supreme Court of the USA. The Federal Supreme Court of Switzerland presents a wholly different number – it has 38 judges (in the present time). This number can seem surprisingly high in view of the size of Switzerland but it is due to the fact that there is not a fully developed federal judicial system of more degrees in Switzerland (the FSC was the only federal court for the long time). The Court of Justice of the European Union which can partially be compared to a constitutional court has 27 judges at present which is the number corresponding to the number of the member states of the community. The constitutional court of Russia has 19 judges which I regard as being in a reasonable range. The number of judges of the supreme court of the European federation must not be to high in order that the most important things can be heard in a plenary session (the number of 27 or even higher would be too high for that) but it must not be also too low in order that a sufficient number of collegia with lower number of judges to hear appeals from federal courts of lower degrees and to deal with constitutional complaints can be made. Finally, I came to the number 19, primarily on the basis of the number of collegia of the lower number of judges. If one of functions of the supreme court of the European federation should be to judge constitutional complaints that every citizen can file as it is common in practice of many European constitutional courts it can be expected that a number of such complaints will not be inconsiderable, so the number of collegia must correspond to it. For that reason I suggest to create six collegia and because the lowest reasonable number of judges of one collegium is three it makes together the resulting number 18. The president of the court should have a special position and should not participate in any collegium, he (she) should (in addition to other duties) only participate in plenary sessions and chair them. Nineteen judges may seem many for plenary decision making but similar numbers are known also from elsewhere (for example, the plenum of the constitutional court of Ukraine numbers 18 judges, the plenum of the supreme court of Finland as well); if we weigh up that nineteen persons can decide whether laws are constitutional that hundreds of millions people will be governed by, it is not a high number at all.

The second question is how long the judges of the supreme court of the European federation should hold their functions. There are two possibilities – lifetime tenure or for a determinate period of time. Appointment for lifetime naturally is also appointment for a limited period, only the period is not delimited in advance and usually is longer than terms determinate in advance. Nonetheless, judges in many states where appointed for lifetime have an obligation to retire after they have achieved a certain age and if a fact is added that a minimal limit of age of a candidate is determined is some states, appointment for lifetime in fact is appointment for a period that must not exceed some concrete number of years. It is better in that case right away to determine a determinate period equal for all judges which I prefer. And how long the period should be? It should represent balance between change and stability. Too long term of mandate of judges could result in enforcing outdated view at organization of society that accords not with changed societal reality, too short term of mandate on the other way could lead to frequent alterations of the Supreme Court's opinions and so to certain legal uncertainty in some measure. I take a period slightly exceeding 10 years for the best for the term of mandate of a judge of the supreme court of the European federation. I chose the term of 13 years, for that ground that the given number overlaps not with election cycle to the Assembly of the Union (4 years) and to the Council of Chancellors (5 years). A question is connected also with this number whether members of the supreme court should have the right to re-installation after their mandate has expired. I believe that it is not suitable, just due to length of the mandate: a mandate for twice 13 years or close to it in fact would be a lifetime mandate.

The last question remains, namely a way of installation of the judges of the supreme court of the European federation in their functions. I was hesitating here long before I decided for the solution. Because the supreme court (in the concept that I write here about) is one of three most important state bodies and if both the House of People of the Assembly of the Union and the Council of Chancellors are directly elected by citizens in my suggestion, I put a question to me whether the third of the most important state bodies should also be directly elected. Popular election of judges is not an unknown thing, it is under way for example in Switzerland in Europe (judges of lower courts), in the United States of America outside Europe (in state level, again mostly judges of lower courts but also of highest courts somewhere). So there are concrete experiences and there is also a long-lasting debate about advantages and disadvantages of popular vote of judges. It is stated as an advantage of popular vote that judges elected this way have greater responsibility to the people and have more respect to public sentiment or that direct election gives a legitimacy to the judges to be self-confident counterweight to other components of the state power; it is stated as an disadvantage that people are not able to consider quality of candidates and tend to choose according to partisan or secondary criteria or that directly elected judges can be influenced in their decision making by pressures of those who supported them in the election campaign (with money). Both kinds of arguments are weighty and do not facilitate a simple, prompt decision. There is an objection against popular vote of judges that it is purposeless because judges anyway must judge a thing by correct interpretation of law and there is no place for subjective beliefs in it. But it is not true; so why courts of highest levels judge in collegia (senates) and decide by voting if law can be applied only in sole way? I will introduce two examples of subjective (and most likely unconstitutional) decisions of the constitutional court of the Czech Republic which made me to ponder popular election of judges of the supreme court of the European federation.

In 2008, the right-wing government of the Czech Republic consisting of political parties loaded in favour of influential business groups and connected with them through corruption introduced (through the parliament) limitations (“ceilings”) on levies in the system of public pension and medical insurance for highest income groups (including great firms). These changes caused a loss in amount of (in conversion) 1,46 milliard euro in the public health system only in the first year of the respective law's force and the health system went further down in next years (the government called it a result of the global economic crisis). In order that the health system collapsed not the government introduced (through the parliament) charges for a visit to a doctor, for a hospital stay and extra charges to medicines to compensate the loss mentioned above (the official governmental justification was that people excessively use health care and waste medicines). It was in fact a transfer of (part of) tax duty from the richest to the middle classes and the poor (a typical neoliberal agenda known Europe-wide). The opposition termed it breaking the constitutional article which says that“ citizens shall have the right, on the basis of public insurance, to free medical care and to medical aids under conditions provided for by law”. Medical charges then came to the constitutional court which decided by close majority of votes that they are in conformity with the constitution. A core of its decision was that amount of the charges was not set so high that anybody would be kept from access to the public health care. The judgment even insinuated that free health care relates to the totalitarian communist regime (in which it really started – one of paradoxes of that age) as if it should be restricted in a democratic regime and acceptability of medical charges justified by reference to Hammurabi's code of law of ancient Babylon (!) that prescribed to pay for medical care as if no social progress could occur since than. The constitutional court itself thus by its own judgment (strangely justified in addition) authorized violation of the constitutional article which access to free medical care conditions only by paying public health insurance. In addition, the assertion of the court that amount of medical charges is no obstacle to access to health care proved to be untruth because the charges appreciably afflicted in particular old people who need health care in a higher degree and even mainstream mass media (which constantly uncritically favour whatever right-wing government and which after pronouncing the judgment predominantly exulted that the left-wing opposition succeeded not at the constitutional court) from time to time bring news about pensioners who reduce purchase of foodstuff to be able to afford medicine charges (that increase after their introduction which the constitutional court “could not” anticipate) or even visit not a doctor in the case of health inconveniences because they presume not to be able to afford to buy medicines that the doctor would prescribe to them. The constitutional court of the Czech republic gave another similar ruling recently. A right-wing government (other than in 2008 but corrupted even more) in 2012, in defiance of opinion of most citizens, pressed donation of public landed property in value of approximately 2,9 milliards euro to the catholic church with official substantiation that it is a remedy of injuries of the communist totalitarian regime (the public believes that it is only a pretext and that this property at least in part should be thieved by influential business groups connected to the government parties). The respective law (adopted by manipulating voting procedures in both chambers of the parliament and by bribing some deputies) came to the constitutional court which confirmed it as adopted in conformity with the constitution and not opposing it. One of the judges of the constitutional court attacked the decision of the court in his dissenting opinion writing that the constitutional court disregarded unlawfulness and immorality of the manner in which the respective law was pressed in the parliament, further the fact that the government conceals what concrete property should be given, that a principle of equality was violated because the catholic church should be more than abundantly compensated while others damaged in the age of the totalitarian regime received only small or even no restitution and that donation of immense property to the catholic church will appreciably raise its influence in the society which endangers religious neutrality of the state. The public feels this decision of the constitutional court unfair, there are voices that the constitutional court does not the job for which it was established.

Two mentioned examples of low-quality judgments of the court that should protect constitutional rights of the citizens but does it not can be attributed to low level of the society in the Czech Republic (as in other post-communist countries) but I believe that there can be a danger also in western Europe that courts guarding constitutionality may not put the proper accent to the rights of the citizens. From this point of view the argument supporting popular election of judges seems to me fully legitimate that says that judges elected this way will more observe interests of the people. In spite of it, I am not sure that it is possible to hold elections of 19 judges of the Supreme Court in a Europe-wide frame so that it has the effect that I have mentioned. After all, judges stand not in the main focus of mass media and it is more difficult to get information about all candidates for citizens in a wider European extent if no pan-European mass media exist. It would be also an organizational problem – how many candidates would have to run if 19 of them should be elected? Therefore I believe that especially in the very beginning of the European federation, it would be a problem to satisfactorily choose 19 judges by popular election so I decided for traditional appointment though I rejected the popular vote not entirely. In the end, there is one problem yet connected with appointment – namely whether appointment of the judges of the Supreme Court should be committed to the executive power with ratification of the legislative power as it is common in many states. The problem is that I wrote earlier that both chambers of the European federal parliament should be fully equal and it would follow from it that both chambers would have to deal with candidates proposed by the Council of Chancellors – and it would be complicated and lengthy. It would be also possible to use a joint session (as in Switzerland) but thus the principle of their equipollent status would be gone because of their different size. Finally I decided to divide appointment among three components of the state power – one third of judges appointed by the Council of Chancellors, one third by the House of the People and last third by the House of States. Altogether it is 18 judges and the last, just the president of the court would be chosen in mentioned popular election. Significance of the court's president (his/her competencies) should be in accordance to the fact that he, unlike other judges, was elected directly by the citizens, nevertheless I will get on to it in another post.

Federal judiciary - general overview

It is left to me now to discuss the remaining component of the principal state powers of the European federation, the judicial power. Before I start describing (in the next post) concrete questions, it is necessary to think about a general form of the judicial power of the European federation. Two questions that are mutually connected have to be answered – how many courts and what types of courts should to execute the judicial power of the federation and what connection should be between the federal judiciary and courts of the member states. There are two choices in principle: either the European federation will have one supreme court whose content will be to resolve questions of jurisdiction between the federation and the member states and among supreme bodies of the federation (or possibly in addition to it several specialized courts, as for patent matters for example) and remaining disputable matters following from federal law will judge the member states courts (as in the present EU) or federal law will be interpreted and judged solely by a fully developed system of federal courts without participation of courts of the member states. Let us see first how the situation in (mainly) European federations looks.

I start with the greatest European federation, Germany. There are both courts of the member states and federal ones. There are six mutually equipollent courts on the top of the federal judicial system, the federal constitutional court and five courts for criminal, civil and patent, administrative, financial, social and labour matters. Save for the constitutional court these courts are the last appellate instance for courts of lower degrees. These lower courts are however not only federal courts but also courts of the states and so entire system of German courts is in fact interconnected in one complex. For example whatever criminal case initiated at state courts can in appellate procedure end at the Federal Court of Justice. It is for that reason that almost all important law passes the federation under concurrent legislation and state courts therefore in fact (predominantly) arbitrate according federal law. The state courts decide also state matters according to state law but its sphere is relatively narrow.

Situation in neighbouring Austria is very similar; the role of the federation there is fortified by the fact that entirely judicial system is only federal. On its top, there is the constitutional court and three specialized courts for criminal and civil, administrative matters and of asylum; there are no courts of the member states. These states (or provinces) have the right to pass own laws but in very narrow sphere like in Germany and federal courts so judge also questions coming out from modest law of states – it is actually wholly opposite to how applying law of the European Union works.

Situation in Belgium, another European federation, is basically similar to that one in Austria. All judicial system is only federal (though it is not called so) which is caused by the fact that it underwent not organizational change since when Belgium was a unitary state. There is naturally the Constitutional Court for the whole state, otherwise in the federal level the Court of Cassation as a supreme instance for extra-constitutional matters.

There is a separate state (cantonal) and federal judicial system in Swiss federation. The federal judiciary comprises of three courts, the Federal Supreme Court, the Federal Criminal Court and the Federal Administrative Court. Not all federal law is however judged only at these courts, some questions are judged according to federal law also by the state (cantonal) courts and vice versa the federal courts are an appellate instance for some matters coming under the state level (as matters of municipal autonomy). Generally however separation of state and federal judicial system in Switzerland is noticeably greater than in Germany.

A relation between federal and state judicial system in Bosnia and Herzegovina is similar to the Swiss one. The federal judiciary comprises of three courts, the Constitutional Court of Bosnia and Herzegovina, the State Court of Bosnia and Herzegovina and the Human Rights Chamber for Bosnia and Herzegovina. Authority of the constitutional court is clear and accord with that of constitutional courts of other federations; the last mentioned court is a local uniqueness responding to the war in former Yugoslavia. Competence of the State Court of Bosnia and Herzegovina comes out from federal law and its content is to judge cases of organized crime and economic criminality if they go beyond the scope of the states (called entities here) or if they endanger integrity and independence of Bosnia and Herzegovina or may cause economic damages exceeding boundaries of the states (entities); this court judges not appeals from state (entities) courts. It can be said that separation of judicial system of the federation and of the member states is the greatest in Bosnia and Herzegovina among all European federations.

Because the United States of America are strong inspiration for political unification of Europe I will present also the judicial system of the United States. The federal judicial system and courts of the member states are separate in the United States, they basically act according to different law (federal or of the respective state) in either this level in which this system is similar to that of Switzerland or Bosnia and Herzegovina and on the contrary dissimilar to Austrian, Belgian and in fact German one. But the federal judicial system in the United States is, unlike the federal judiciary in whatever European federation, extensive and has several degrees. The Supreme Court stands on the top of the judicial system and acts partly as a constitutional court, partly as a court of last resort with appellate jurisdiction over federal courts of lower degrees. The second degree is comprised partly of twelve appellate courts on geographic basis, partly of appellate courts for some special matters and, in the end, of an appellate court for the armed forces. The lowest degree of the federal courts is most large, district courts that are at least one in every member state fall here first of all, then four specialized courts for tax, economic questions and of foreign intelligence agents; moreover a bankruptcy court is affiliated to each district court and also courts of the armed forces complete the system of the lowest degree courts.

There is a question now which of the mentioned systems is most suitable for the European federation. First of all, it is necessary to answer whether interpretation of federal law should be committed to the member states courts – extent of the federal judicial system then will be dependent on it. There are two choices: 1) judicial proceeding in questions of federal law will be initiated at the member states courts (which will so function as intrastate courts following interstate law for one thing and as federal courts following federal law for another thing) and only possible appellate proceedings will take place at the courts of the federation; the most important constitutional questions will be heard exclusively at federal courts; 2) judicial proceedings in questions coming under federal law will in all degrees take place in the system of federal courts separate from judiciary of the member states. The first model is on principle a model of Germany and Austria and of the present European Union (which is logical because it – despite its name – is basically an international organization), the second model is in essence that of Switzerland, of Bosnia and Herzegovina and of the United States of America. No inexorable logic of functioning of the federation as such requires one concrete solution, so the choice depends on subjective perception of relation between the federation and the member states or rather of position of the member states. It is about a conception whether the member states will take a share in exercising powers of the federation or whether they will exercise only their internal matters. My opinion is that activity of either level should be separate as much as possible; for each level has own sphere of functions and activities and should decide on them independently. Just distribution of public affairs between two levels is essence of the federation and if we wanted to leave execution of common affairs to the member states, we would have no need of a federation, an international organization like the present European Union would suffice. The federal level is established to exercise common affairs, it is its purpose – so let it do it. It is necessary to emphasize that common affairs (which are content of activity of the federal level) require uniform arrangement equal for all involved ones. To adopt uniform rules common for all in the federal level and then to exercise them differently according to nature of the respective member states in the state level makes no sense. If it is necessary to exercise a public affair according to conventions of a given state, that affair should fall in the state level, not in the federal one (some states can have a belief that they must absolutely all execute themselves according to own conventions and that therefore cannot accept any federation, but it is another question). Two reasons why to want to (partially) exercise powers of the federation by member states organs occur to me: 1) a state can have a strong tradition of efficient public administration and believe that it can better exercise decisions of the federation than the administration of the federation would do it; 2) fear of growth of bureaucracy by creating new (e.g. federal) authorities besides the existing state ones. But in the first case, desirable solution is to strive for high-quality federal administration, in the second case, it is necessary to realize that quantity of functions of state organs will decrease by creating the federal level, so doubling of organs for execution of the same matters will not occur. A rule should be in force in my opinion: in what level a decision was passed, in that level it should be executed. This should be generally valid, it means in the sphere of judiciary that exclusively a system of federal courts separate from state courts should interpret federal law.

A form of the judicial system of the European federation is thus predetermined in a large extent. A court holding a function of the constitutional court must naturally be on the top but it is about how the rest of the system will look. If we start with axiom of separate federal judiciary, the European federation cannot make do with for example three courts as in the Swiss case. Whereas Switzerland is relatively small (eight millions inhabitants) the European federation will probably comprise a significant part of Europe with great population some day (though it may start as a relatively small state comprising of only few member states). It will require a more extensive judicial system, like in the USA. Also the European federation in my opinion should have a system of three degrees, with courts of original jurisdiction, appellate courts in the second degree and a supreme court on the top of the system.

Questions are left to answer whether original and appellate judicial proceeding should take place only at ordinary courts of the first and second degree or whether some spheres of affairs should be judged at specialized courts in either this degree and in addition whether a separate constitutional court there should be on the top of the system or whether the constitutional authority should pertain to the supreme appellate court. If we look at specialized courts of the mentioned federations, we can see that they are not identical and so it looks that it depends on specific needs in the given federation. I am not able to say something about specific need of the future European federation and besides, I think that it is only organizational thing whether some matters of federal law will be judged by a general system or they will be separated to courts specialized in certain subjects. Therefore I believe that it will be more understandable for the public and more simple if all questions of federal law will be heard at general courts, each of them having several departments for separate spheres of matters.

As far as separation of a constitutional court is concerned I prefer that constitutional questions are heard by the supreme court as in the United States. Because it seems to me suitable that one court is on the top of the federal judicial system and functions as its keystone. All judicial system of the European federation would so have a form of a pyramid – courts of first degree with original jurisdiction at the bottom, appellate courts of the second degree over them and all on the top would be the supreme court. All this pyramid should be entirely separate from the member state courts and all matters coming under federal law should be judged only at the federal courts.

This is my general idea for now, next time I will deal with a form (composition) of the supreme court.

Flag of the European federation

In one my previous post dealing with basic data about the European federation I described also state symbols of the European federal state. I took over symbols of the present intergovernmental European Union  without change or only with small changes because the symbols seemed well chosen to me and appropriate also for a future European federation. But I realized later that it will not be so simple. The symbols described by me in the relevant part of the suggested constitution of the European federal state should be connected with a future European federation but they are at the same time already today used as the symbols of the intergovernmental organization called the European Union. And it is just the problem. International organizations work primarily on the basis of governmental diplomacy, a federal state should be grounded on as directly as possible expressed will of its citizens themselves. The symbols of the present intergovernmental European Union so could be used only if the present international organization as its first stage would continuously pass to a federal state. It was indeed so planned in the beginning. Robert Schuman presented in his memorable speech in 1950 among other: The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe. In the first decades, all steps of the unification process certainly followed this final goal but I do not know whether it still stands. Politicians speak about “deepening of integration” but only expanding spheres of the topics that the governments of the member states deal in their “European” meetings with is a case in practice; progress towards true federal arrangement is not visible, not to speak about committing especially essential matters of all-European significance to the hands of the people. Decision making of the European Commission and the Council of the EU is a bit similar to the method of governance in east-European totalitarian states before 1990 – the ruling party organized a congress, a plan for following years adopted at it, the mass media obligatorily exalted it and the rest of the society got the task to apply the plan in its doings; there was a zero scope for activity and decisions of the people. Apart that the people can almost only watch decisions of the present EU, the EU authorities promote more and more such policy that injures citizens of the member states and alienates them from the whole organization. Trust in the present European Union rapidly falls, also in countries traditionally inclined towards unification of Europe.

For we have a crisis and it is necessary to placate the financial markets. Prosperity of banks is more important then lives of citizens and the European Union became an instrument of help for banks and great firms at the expense of citizens of the member states. Also common solidarity rapidly decays, a common objective in followed no more, every state acts almost only at its own; the mark of the European Union is left almost only for Germany that however by means of it also is in pursuit of its own aim, namely preserving of prosperity of the German economy, even at the cost of devastation of lives of other Europeans. I do not wonder at all that hate against the EU grows in Cyprus, Greece, Spain, Portugal and somewhere else where Germany shielded by the name of the EU comes to “cut”.

Especially the euro (currency) crisis shows considerable lack of democracy in the European organization because important economic (and social following them) questions were taken from the power of the member states where their citizens so so could influence them in the European level where they are outside reach of the citizens, especially those from the states that are mostly afflicted by the crisis. Organizations preceding the present European Union were established after the war as first degrees of Europe's unification but the current quasi union demonstrates rather an image of disintegration than unity. Generally, it can be said that the current intergovernmental organization of 27 European states discredit the idea of Europe's unification in minds of many Europeans and the same can be said about its symbols. Therefore I decided that a flag of the European federation that should already now represent the future federation should be different form the flag of the current European Union which ceases to be a symbol of a hope for the future; and just the flag is the most used of all symbols of the current EU, the most known and the most frequent target of dissent to the organization. Simply: let use of the present blue flag with yellow stars indicates only the current international organization (whose heading towards a democratic federation is extremely uncertain) and let use of the flag of the European federation symbolizes solely the European federation and unambiguous heading towards it.

So how should look the flag of the European federation? My first precondition is that the present flag symbolism of the international European Union should not be entirely rejected because some progress on the course towards Europe's unification on the federal basis was achieved also in the intergovernmental field. My second precondition nevertheless proceeds from the fact that explicit heading of the current European Union towards the federal state is unclear, its “leaders” (that is the national politicians) do not speak about it and some of them do everything so that it stays unchanged. Therefore I want to supplement the flag symbol of the present EU with a symbol unequivocally expressing heading to federal arrangement. The only symbol whose interpretation is undoubtedly such as this is according to my knowledge the symbol of Pan-Europa.

A symbol of the Pan-European movement constituted by Richard Coudenhove-Kalergi was slightly transforming during decades. It had only two colours initially, yellow and red arranged in the form of a red cross on a yellow circle. “A sign in which Europeans of all states connect together is a sun cross: a red cross on a golden sun, a symbol of humanity and sense.” (Richard Coudenhove-Kalergi: Pan-Europa).

After having specified these two preconditions I was faced with a question how to combine the named two symbols in one. A first and most natural possibility is to maintain composition of both source symbols, that is the flag of the present EU and the original circular symbol of pan-European movement. Then it is natural to insert the yellow circle with the cross inside the ring of yellow stars in (dark) blue flag.

This symbol is however already in use, it is a current symbol of the pan-European movement.

But that is not only reason why this form not suits me; because it visually too resembles the flag of the current EU with all its mentioned above. I decided therefore to swap the colours in order that yellow prevails in the flag. In that case blue remains represented only in the form of a blue background under the circle of yellow stars (otherwise yellow stars would blend in with the yellow background of the flag). By simple swap of the blue colour for the yellow according to that told above with preservation of composition of the current pan-European movement's flag arises a flag as follows. I selected greater width so that the area of yellow comes to the fore.

This flag can however be further modified in the way that the limbs of the red cross are lengthened from outside the stars circle up to borders of the flag. The modified form actually adjusts the original circle-shaped symbol of Pan-Europa to rectangular shape of a flag whose all area it fills and the blue circle with yellow stars is added like in the previous variant.

In the just presented flag, the blue circle with yellow stars is optically on top and the red cross under it. This optical foreground and background (besides the yellow background of the whole flag itself) can be swapped so that the red cross is optically on top and the blue circle with stars is under it. Four stars however would so end up hidden under the cross, in that case they have to be depicted just in the cross, outside the blue circle.

No other composition crossed my mind, so it remains to select one of these variants now. I prefer from the three presented flags with prevailing yellow flag the two ones in which the red cross along with the yellow background fills the whole area of the flag; and that ground is then completed with yellow stars on a blue circle in two ways. I chose from these two variants only on the basis of an aesthetic impression which is, I admit, subjective. I like more the flag with the blue circle under the red cross; that four stars are outside the blue circle I hold not objectionable.

So the conclusion of my reflection is a flag of the European federal state in the form of a yellow field with a red cross in it and a circle of twelve yellow five-angled stars round the cross' center on a blue circle put under the cross' limbs.

Council of Chancellors - constitutional text

Chapter 2 – Council of Chancellors
Article 36 – Executive power of the Union
1. The executive power of the Union, unless the federal plebiscite determines otherwise, is vested in the Council of Chancellors.
2. The Council of Chancellors comprises of the First Chancellor of the Union and two Chancellors of the Union. Their position is equal except in cases established by the constitution.

Article 37 – Election
1. The members of the Council of Chancellors are elected by the people of the European Union in  general, direct and secret elections.
2. The term of mandate of the Chancellor of the Union is five years. Nobody can be elected the Chancellor of the Union more than twice.
3. Every citizen of the European Union who reached the age of 18 years has the right to elect the Chancellor of the Union.
4. Every citizen of the European Union who completed the age of forty can be elected a Chancellor of the Union.
5. Candidates submit an announcement of their candidature in groups of three persons. Nobody in the respective group can be a citizen of the same member state or other territory of the Union as other members of the same group of candidates.
6. Each group of candidates has to prove itself with approval with its candidature of at least one hundred thousand citizens from at least one sixth of the member states or other territories of the Union legitimate to vote to the House of People of the Assembly of the Union.
7. Candidates of that group which obtains the majority of  votes of citizens and at the same time the majority of votes of states become Chancellors of the Union. Result of voting in the member state, the federal territory of the Union or the Federal Region of Brussels counts as the vote of state.
8. If no group of candidates is elected, the second round is held to which advance two groups of candidates with the highest total of votes of citizens and of portion of votes of states. The second round is held 15 days after the first round is finished.
9. Candidates of the group which obtains the majority of votes of citizens and at the same time the majority of votes of states are elected Chancellors of the Union. If no group of candidates obtains the majorities determined above, the group of candidates is elected which obtains the highest total of portion of votes of citizens and of portion of votes of states.
10. Details of the election is stipulated by the law.

Article 38 – Rights and duties of Chancellors of the Union
1. Nobody is allowed to be a member of the Assembly of the Union and to hold any constitutional or other salaried office of the European Union, of any member state or its autonomous entity or of any other territory of the Union.
2. A member of the Council of Chancellors may not be prosecuted, restricted in his free movement or arrested unless caught while committing a criminal act.
3. A member of the Council of Chancellors may be prosecuted in suspicion of committing a criminal act. At least 25 000 citizens of the Union from at least three member states or at least forty deputies of the House of People or at least twenty deputies of the House of States initiate criminal proceedings.
4. The members of the Council of Chancellors receive a salary paid from means of the Union. To receive other remunerations is inadmissible.
5. The mandate of a member of the Council of Chancellors becomes effective by his election.
6. Every member of the Council of Chancellors takes the oath at the first session of the Council of Chancellors. The oath of the member of the Assembly of the Union reads: “I, … (name of a person), solemnly pledge now to work for welfare of the people of the European Union, to represent it in compliance with my conscience and to fulfill the spirit of the constitution of the Union.”
8. The mandate of a member of the Assembly of the Union expires by
(a) expiration of the term of mandate,
(b) refusing to take the oath or taking the oath with reservations,
(c) resignation,
(d) death,
(e) exercise of an incompatible function,
(f) recall,
(g) imprisonment.
8. The law stipulates details of rights and duties of the members of the Council of Chancellors.

Article 39 – Vacant office of a Chancellor
1. If the office of the Chancellor of the Union becomes vacant, election of the Council of Chancellors is held according to the article 37 within 80 days.
2. Until the Council of Chancellors is elected, duties of an absent Chancellor of the Union exercise the President of the House of People of the Assembly of the Union, the President of the House of States of the Assembly of the Union and the President of the Supreme Court of the Union, in this order.
3. The law stipulates details.

Article 40 – First Chancellor
1. The period for which the Council of Chancellors was elected is divided in three equal parts. Every Chancellor is the First Chancellor in one term determined this way.
2. Order is decided by lot held in the joint session of both chambers of the Assembly of the Union chaired by the President of the House of People.

Article 41 – Sessions of the Council of Chancellors
1. The Council of Chancellors exercises laws of the Union, judgments of the Supreme Court of the Union or other courts of the Union and adopt measures necessary for common good of the Union in the frame of the laws of the Union.
2. Sessions of the Council of Chancellors take place in the Federal Region of Brussels, in the case of extraordinary circumstances in other place of the Union.
3. Sessions of the Council of Chancellors are closed unless the Council determines otherwise.
4. The First Chancellor of the Union, in urgent case other Chancellor of the Union calls and chairs sessions of the Council of Chancellors. Details are stipulated by the law.
5. Approval of at least two Chancellors of the Union is required to adopt a decision of the Council of Chancellors.
6. The Council of Chancellors charges the definite Chancellor of the Union with execution of its decision. The authorized Chancellor of the Union is entitled to issue necessary instructions exercising the decision of the Council of Chancellors.
7. The decision of the Council of Chancellors is inscribed  in the Official Journal of the European Union. It takes effect when it is inscribed in the Official Journal unless urgent necessity requires otherwise. Details are stipulated by the law.
8. Written minutes from each session of the Council of Chancellors must be taken. Their requisites are stipulated by the law.

Article 42 – External relations
1. The First Chancellor of the Union is the highest representative of the Union. He represents the Union internationally unless the Council of Chancellors decides otherwise.
2. The First Chancellor of the Union appoints and recalls diplomatic representatives of the Union on the authority of the Council of Chancellors and receives foreign ambassadors.
3. The Council of Chancellors negotiates and ratifies international treaties. It continuously reports to the Assembly of the Union on progress of negotiation.

Article 43 – Armed forces of the Union
1. The First Chancellor of the Union is Commander in Chief of the armed forces of the Union.
2. The First Chancellor of the Union appoints, promotes, degrades and recalls high officers of the armed forces of the Union and decides upon committing armed forces of the Union.
3. Armed forces of the Union can be dispatched outside the territory of the Union and the associated states of the Union only with consent of the Assembly of the Union.
4. Military operations against an enemy can be done only after formal proclamation of war.
5. The Council of Chancellors can dispatch the armed forces of the Union outside the territory of the Union and the associated states without consent of the Assembly of the Union only for the purpose of averting an imminent military attack or effects of a great natural disaster and only for the time of fifty hours.

Work of Council of Chancellors

The last post devoted to the executive power of the European federation will deal with realization of the executive power by the Council of Chancellors.

The first article of my proposal first deals with a question who will be in the chair of the Council of Chancellors. All Chancellors should have wholly equal position according to my suggestion but a function of a chairman is necessary for practical reason. A question of presidency is unnecessary at the moment of election, nobody of the respective group of candidates should act as a candidate for a president. Because no hierarchy among individual candidates there should be, it is necessary to choice a chairman after the election. It corresponds however not to equality of all chancellors that one of them is appointed a chairman for the whole term of service of the Council of Chancellors whereas the others would be in position of “ordinary” chancellors. The best solution is therefore alternation of presidency similarly as in the case of the Swiss Federal Council. It is elected by the Swiss federal parliament and it also elects a President of the Council from among its members  every year. But it is impossible at the Council of Chancellors for its origin is not derived from the parliament. The only acceptable manner that enters my mind is by drawing lots. The term of service of the Council of Chancellors is divided in three equal periods and each chancellor will be a chairman of the Council (so he (she) will be a First Chancellor in official terminology) in this way determined period of time by which equality of all three chancellors will be preserved. Taking its importance into account, drawing lots should be realized in a public and solemn manner, in the best case along with the obligatory oath. Such suitable public and solemn manner is a joint session of both chambers of the Assembly of the Union. There is only one question there, namely who will be in the chair in such joint session. In most bicameral parliaments is the lower chamber preferred and its president usually chairs the session. In my proposal, both chambers of the European federal parliament are equal but the same is in the case of the Swiss federal parliament whose chambers are constitutionally equal as well and in spite of it their joint session are chaired by the president of the “lower” chamber (the National Council). So I choose the same solution for the European constitution.

Next my suggested article deals already with work of the Council of Chancellors. First, however, it defines purpose of existence of the Council. The purposes are two: to perform decisions of the legislative and judiciary power and, independently on them, to execute measures for the good of citizens of the federation. In the case of the second, it is necessary to emphasize that it must go on in the frame of laws of the federation, otherwise power of the Council of Chancellors would be limitless.

Further, sessions of the Council of Chancellors themselves are described. As in the case of the Assembly of the Union, I determined the Federal Region of Brussels as a place where sessions of the Council should take place; and with a supplement that it can be also another place in the federation in the case of exceptional circumstances.

The next two letters of the text determine that sessions of the Council are non-public, unless the Council determines otherwise and that the First Chancellor calls and chairs sessions of the Council, in urgent cases other Chancellor of the Union.

I wrote about the next item already in the previous post – a decision of the Council of Chancellors is adopted by absolute majority, that is by two of three votes.

As well as in usual governments where a certain minister is charged with performing the decision of the government, also in the Council of Chancellors, a certain chancellor must be charged with the performing a Council's decision. I added a provision that such chancellor has the right to issue necessary decrees performing the decision though it may seem obvious.

Not only laws adopted by the parliament, also decisions of the Council of Chancellors have to meet certain formal requirements to come into force. The main condition is inscription in the Official Journal, although I added a possibility that it is not necessary to wait for inscription in the case of urgent necessity. Details however have to be regulated by a separate law in order that it is not abused.

A compensation for that sessions of the Council of Chancellors can be non-public has to be necessity to make out a written record (minutes) of every session which is after all usual in work of governments.

I devoted the following two suggested articles to two spheres of competencies of the executive power whose relation to Chancellors of the Union should be generally determined in the constitution. The first of them concerns foreign relations, in concrete terms who should represent the European federation externally. A head of state usually represents the state externally in most European states, it is mostly a president or a monarch but my proposal of the constitution of the European federation includes no such function of a president or similar representative person (the function of a president is a republican “remake” of a monarch and I consider it superfluous). In the case of absence of such function, it is possible to consider a collective head of state like (for example) in Switzerland; there is however a practice in Switzerland that the President of (Con)federation, a chairman of the federal government and of the collective head of state at the same time, acts as a head of state abroad. Therefore I included a provision to my constitutional proposal that the First Chancellor is the highest representative of the Union who represents it externally. I reserved however also a possibility that the Council of Chancellors put representation of the Union externally to the hands of other chancellor.

I detached, from acts of representation of the federation externally, matters of diplomatic mission in a separate provision. It is again mainly a task of the First Chancellor and he in my proposal independently can receive credentials of foreign diplomatic representatives. Also formal appointment and recall of ambassadors should be put in his hands but not on the basis of solely his decision, rather on the authority of the Council.

The following provision corresponds to present practice in most present states and should be present also in the constitution of the European federation. The matter is negotiation of international treaties and their ratification. Usually, it has to do with a head of state or with a government and because both of these functions are incorporated in the Council of Chancellors, negotiation and ratification of international treaties must therefore be its responsibility. But the Council cannot be allowed to secretly negotiate whatever, so it has to have an obligation to inform the parliament about progress of negotiation. The last step, by the way, must be according to me acknowledgment by people's vote but the turn of this matter comes later in the respective part of the constitution.

And the second article regulating performing executive power of the federation deals with relation of the Council of Chancellors to military affairs. First: who will be a commander in chief of armed forces of the European federation? The Council as a whole or the First Chancellor are the choices. In Switzerland that has a collective head of state identical with a government, a general (e. g. a soldier) is appointed by the parliament in the post of the commander in chief but under supreme authority of the government. I on the contrary believe that supreme authority over the armed forces of the European federation should hold one person and not (professional) soldier. So I put the authority of a commander in chief in the hands of the First chancellor along with competencies of appointing and recalling high officers of the armed forces and, before all, with the power to decide about use of the armed forces in both peace and war.

The next three provisions put limits on decision of the armed forces of the European federation by the chancellors. The first limit is that the armed forces of the federation can be dispatched outside the territory of the federation and the associated states only with approval of the Assembly of the Union.

But there has to be an exception for cases of urgent need. It however must have strict limitations as a protection against misuse. So the first limitation stipulated by me is an immediately imminent military attack or heavy natural disaster. The second limitation is a period of 50 hours – it is, I hope, a sufficiently long period so that the Assembly of the Union can manage to approve or reject further activities of federal armed forces outside the Union.

And other provision determines one more limitation, very important in my view – military activities against an enemy can be done only after a formal declaration of war (enacted by the parliament). It is my reaction to present abuse of military powers of European states (and before all of the USA). Their constitutions mostly make military actions dependent on a declaration of war, but present governments simply use such Orwellian terms like “preemptive strike”, “protection of civilians”, “searching for terrorists” that allow to pretend that no war is waged and so assent of the parliament is not asked though the same military actions are done as if a regular war was waged. Laws about waging war are evaded now, war is labeled in various other ways in order that own legal rules must not be followed. In the beginning of the 20th century, European states had ministries of war, today their cynical name is “ministry of defence” but wars are waged nothing less than at that time (the only difference is that today, European wars are waged predominantly outside of Europe). I do not want that any future European federation acts like European states today so I added to my proposal of this constitutional article a severe provision saying that any military actions against an enemy can be done only after formal declaration of war (and it by a special law). This provision should at least reduce if not remove excessive military campaigns (above that in good of only few chosen ones like great mining companies) which we can see today.

And that is all relating to the executive power of the European federation that has crossed my mind. The legal wording will follow and then I will come to the judiciary.

Chancellors of the Union and their offices

This my other post dedicated to the executive power of the European federation is only short, it deals with the relation of the Chancellors of the Union to their function. It is an analogy of the respective regulations regarding the deputies of the Assembly of the Union. For that reason most regulations will repeat themselves because I believe that rights and duties of both categories of these supreme official persons should be in principal equal.

So the first article of my proposal regards rights and duties of the Chancellors of the Union. Its first letter determines a principle of incompatibility of functions and it is equal as in the case of deputies of the Assembly of the Union – a Chancellor of the Union must not hold another paid office of the Union or of any member state or any autonomous unit of a member state.

The second as well as the third letter of my proposal deals with criminal prosecution of the chancellor of the Union. My suggestion says first that freedom of movement of the Chancellor of the Union may not be restricted or he may not be taken in custody but only committing a criminal offence or immediately after. The next letter then is more specific about conditions of prosecution of the Chancellor of the Union, regardless whether he was apprehended committing a criminal act or not. It says that the Chancellor of the Union may be prosecuted on suspicion of committing a criminal act and determines who can initiate such prosecution. Because a natural consequence of separation of powers is that one power controls another it is understandable that one of the other sides having this right are in my suggestion members of the Assembly of the Union, that is representatives of both chambers. In order that lodging little justified complaints is prevented it is necessary to demand a certain number of deputies as a condition, not only one deputy but I choose their number rather low so that lodging a complaint against the Chancellor of the Union is on the other hand not too difficult. Therefore I chose the number of 40 deputies of the House of the People and 20 deputies of the House of States. But it ends not with this. In conformity with greater emphasis on occasion of the people to influence working of its constitutional representatives and unlike what is in common constitutions, I give a possibility to the people to initiate prosecution of the Chancellor of the Union. I chose their number also low, namely 25 000 persons, with addition that they must be from at least three member states. It is suitable to realize at these low numbers that it is only about initiation of prosecution, not about condemnation or removing from the office. I have also to point out what somebody maybe realized, namely that I did not mention about similar right of the people to initiate prosecution of deputies of the federal parliament. It may not be a bad idea also in this case but it seems to me not so necessary because every deputy is a part of a great entity and his responsibility as an individual is therefore much less.

The other provision concerns pay remuneration of the Chancellors of the Union and is completely identical with the respective provision about the deputies of the Assembly of the Union (the provision forbids them to accept other remunerations but their regular pay from the means of the federation).

The next letter suggested by me determines what belongs to rise of the mandate of the Chancellor of the Union. As in the case of the deputy of the Assembly of the Union I put its beginning to the moment just after his election. And an oath is alike required so that the mandate comes into effect. I entirely took over its reading from the oath of the deputies, I added however an obligation to protect unity of the federation. For if I wrote in the suggestion of the preamble that the European federation should be an indivisible entity, it should not be an empty declaration and somebody should have effort to preserve unity of the federation as a job description. And who else than a representative of the executive power should be obliged to it.

The last but one paragraph of this suggested article deals with ending of the mandate of the Chancellor of the Union and names again the same reasons as at the deputies of the federal parliament:  expiration of the term of mandate, refusing to take the oath or taking the oath with reservations, resignation, death, exercise of an incompatible function, recall, imprisonment.

Other details about rights and duties of the Chancellors of the Union, like of the deputies of the federal parliament earlier, will be left to a separate law.

The second article, that I will deal with, has no analogy in my earlier suggested provisions about the deputies of the federal parliament. It deals with a question how to proceed if one ore more Chancellors of the Union cease executing his office (for example he resigns, dies, is removed from the office and so on). It is necessary to emphasize first and foremost that so important body as the Council of Chancellors holding the executive power of the federation cannot remain incomplete (let alone entirely vacant) for longer time (unlike in the case of much greater bodies of the individual parliamentary chambers where one or few vacant seats are almost no complication for the parliament). Only that can result from it that it is necessary to complete the Council of Chancellors to full staff of three persons. But there is a question how to do it. I proceed from a basic assumption that a certain group of three chancellors was elected as a whole by the citizens. For that reason, I consider impossible that completion of vacant seats by a compensatory election or a compensatory appointment is chosen a permanent solution for the whole time to the next regular elections. If the citizens elected three specific chancellors as an indivisible group, someone else cannot hold their position as an regular chancellor. For that reason, I see as an only acceptable solution new (“premature”) elections of new three chancellors of the federation. These new elections have to be held in a certain period of time so that the federation is not without the regular executive power for a long time. Because it is necessary that the citizens become acquainted with possible candidates and that some people can at all think about their candidature. On the basis of it, I determined the farthest limit of new election a period of 80 days after any seat of the chancellor becomes vacant. A question however remains unanswered, who will exercise the executive power before new chancellors will be elected. Some provisional solution cannot be avoided here. If a kind of vice-chancellors were elected along with the chancellors, themselves could accede to their empty positions, but what is convenient in the case of one person and its one substitute, would be inconvenient in the case of three persons and three hypothetical substitutes of them. Therefore I select a classical method of taking over the function by other constitutional public figures. They are in particular the President of the House of the People of the Assembly of the Union, the President of the House of States and the President of the Supreme Court and in particular in this order of succession for vacant seats of the Chancellors of the Union. It is necessary to add that for the duration of their substitute exercise of the function of the Chancellor of the Union, these person cannot exercise the function to that they were elected in order that no (partial) fusion of the separated state powers occurs.

The next post will be the last dealing with the topic of the Chancellors of the Union, it will treat rules for working of the Council of Chancellors.