Transport strike ban cites wrong precedent: lawyers

Saturday’s decision by the Prague Municipal Court to cancel a nationwide strike by transport unions, forcing unions to reschedule Monday’s planned action to Thursday, albeit on a bigger scale, has highlighted the hazy character of Czech strike law. The main reason for the ruling was that the unions had not given the required three-day warning of the strike action.

In many ways, Saturday’s court decision following a demand for a ruling from Finance Minister Miroslav Kalousek (TOP 09), confirms the old adage that wherever two lawyers meet to discuss an issue, three opinions can be expected. But the preliminary court injunction against the strike called to protest a raft of government reforms does not really go to the heart of the issue of whether the strike was legitimate or not.

Vít Samek, the legal expert for the Czech Republic’s biggest grouping of trades unions, the Czech and Moravian Confederation of Trades Unions (ČMKOS), denied on Czech Television (ČT) on Monday that the strike had a political character and was meant to overthrow the government. He added that the two judges who handed down their ruling on Saturday made some basic mistakes and appeared to side with the Ministry of Finance. That is a pretty serious charge.

The ČMKOS says the judges based their decision on the law concerning collective bargaining, the only piece of legislation concerning strikes, while it says the action is based on the right to strike found in the Czech Republic’s Constitution. The ČMKOS adds that the court decision is in breach of European and international legal rules.

Legal uncertainty

Lawyers contacted by Czech Position concur that Prague’s Municipal Court judges apparently attempted to proceed according to analogy. The problem was that they based their decision on precedents from the collective bargaining law and not the Charter of Fundamental Rights and Freedoms, which contains the right to strike. The charter also says that the conditions for strikes are laid down by law, which in the Czech context is only true for strikes against employers, not for ones against the state. Laws governing other strikes are quite simply missing.

One lawyer reckoned that the judges came to the right verdict although their legal path might hagve been questionable. “I think that the preliminary injunction was proper. If a three-day warning for strikes connected with collective bargaining is in order, then there is no real reason why such a deadline cannot be applied to a broad-based general strike. I think it is unacceptable if anyone can strike without any warning and without regard to the consequences for others. This is not a limitation on the right to strike but a regulation of it,” lawyer Gabriel Achour said.

Other Czech lawyers who did not want to be identified share the same view. “A ban on a strike in the form of a preliminary injunction is in this instance defendable. As an individual, I think this was a bad move by the government and unnecessarily led to a further escalation in a battle for the support of the public, which is already lost,” said one.

Wrong precedent

One well-known Czech lawyer said that the search for legal precedents was questionable and that the basic principle of: ‘What is not forbidden is permitted’ provides a better foundation. Professor and constitution law expert Václav Pavlíček gave a similar opinion to the news server iDnes.cz. “A law was applied that should and cannot apply to this case because it solved disputes between employers and employees, and here we have a dispute between the representatives of union organizations and the state,” Pavlíček said.

A more brutal interpretation is offered by lawyer Ladislav Vostárek, a former song writer for the band Katapult. “This strike has a terroristic character and is in violation of the Constitution. What the left-wing unions want is to de-facto have the right to intervene in the exercise of the electoral rights of the citizens of the state because they are trying to overthrow a freely elected government. When you compare the number of people involved in the unions organizing this strike and the number of voters who took part in elections, you cannot escape the impression that the minority is terrorizing the majority with the expectation of some gain.”

Vostárek added, however, that the government had hardly helped its cause by clearly giving the impression to electors that it is not they who are really running their ministries but their officials and “sponsors.” A government that could no longer demonstrate clearly for whom it was governing should resign, he concluded.