We are a state governed by the rule of law; government of the people means government by law. Ensuring our security must be conducted according to established rules. Otherwise, we may find ourselves in a situation where the executive branch undertakes certain actions, only to be prevented by the legislative and judicial branches. The result would be complete inaction.
Our constitutional framework came into existence between 1993 and 1998 under entirely different conditions than those prevailing today. Let us examine it.
Deployment of Military Forces Abroad
The government may deploy armed forces for a maximum of 60 days and only in limited circumstances. Armed forces may be deployed only when fulfilling obligations arising from international treaties on collective defense against attack, or when participating in peacekeeping operations pursuant to decisions of international organizations of which the Czech Republic is a member, with the consent of the receiving state, or finally, when participating in rescue operations during natural disasters, industrial accidents, or ecological catastrophes.
This means that the government cannot deploy soldiers as part of any coalition of the willing or to assist our citizens abroad in other ways, and certainly not preventively to avert potential threats. According to current legal provisions, the government requires consent from other subjects of international law, and particularly the consent of the receiving state, for any deployment. This is highly restrictive. We can do virtually nothing.
Thus, the problem is being resolved in an ad hoc manner. We have even gone so far as to have the President of the Republic award state honors to a fallen Czech citizen in Ukraine, who through his participation in combat formally committed criminal acts under our law.
Only Parliament may deploy armed forces abroad. Parliament is not bound by any constraints. It may send soldiers anywhere and for any duration. However, both chambers must agree to the deployment; one cannot outvote the other. The necessary absolute agreement of both chambers may again present significant difficulties. Finding such consensus on deploying soldiers to areas where actual combat may commence is a major challenge. Moreover, the political composition of the Chamber of Deputies and the Senate may differ. Again, a significant complication.
Declaration of a State of War
Parliament decides on a state of war only if the Czech Republic is attacked, or if it is necessary to fulfill international treaty obligations regarding collective defense. This means we cannot declare a state of war when an attack poses a real threat to us. We must passively wait until someone attacks us. This is too late.
Let us consider the manner in which the Czech Republic might be attacked. It is unlikely that anyone will attack us with conventional military force in the foreseeable future. Most likely, it would take some form of indirect attack. NATO conclusions from the Vilnius summit confirm this. They go furthest, anticipating the possibility of "activation of Article 5 of the Washington Treaty, should this be justified by individual or cumulative sets of malicious cyber activities that could reach the level of an armed attack. This will depend on the specific assessment of individual cases. The heads of state and government of the North Atlantic Alliance anticipate that an attack on the Alliance will most likely not take the form of an armed attack against one of the allies".
Now let us apply our constitutional provisions to the concept of "individual or cumulative sets of malicious cyber activities in cyberspace" as an attack against our country. I do not see how this would be possible. Again, a major complication for decision-making.
State of Emergency
Russia does not need to attack us militarily. It would suffice for the Russians to incite dangerous migration to Europe. After the war, there will be thousands of people in Ukraine who have done nothing but kill others for several years. They have weapons. They know how to kill using "modern technologies." This is already a consequence of the war. Many of them will feel that the West betrayed Ukraine and will turn against us. Russia will encourage massive migration to Ukraine, as there is already a catastrophic shortage of male workforce from the Middle East and Africa. These people – both groups – will not voluntarily stop at Ukraine's borders. If they are in Europe, they will pose a serious security threat.
This brings me to the question of declaring a state of emergency. A state of emergency is declared by both chambers of Parliament by absolute majority on the government's proposal, if the sovereignty of the state or its territorial integrity or its democratic foundations are directly threatened. Can we say that migration in itself threatens the sovereignty of the state or its territorial integrity or its democratic foundations? No. This migration threatens the lives, health, and property of our state's citizens. And we cannot declare a state of emergency. Again, the objection regarding the need for absolute agreement between both chambers of Parliament applies, which is a limiting factor.
Moreover, there is a risk that decisions will need to be made very quickly, which is procedurally almost impossible if members of parliament and senators are to decide.
Solution
What is the way out of this labyrinth? It is simple and straightforward. It suffices to enable the Prime Minister to decide on all these matters in the constitutional framework when there is danger in delay. Intelligence services will assess this for him. Let the government have the right to revoke his decision within hours. Similarly, members of parliament and senators may subsequently revoke it from the government, also within a very short time. This will ensure democratic oversight. Let us remove limiting conditions so that the state may decide responsibly about its armed forces according to the degree of risk.
Therefore, the Result
1. In Case of Extreme Situations
Decisions must be made, sometimes very quickly. For example, if intelligence services learn of preparations for some cyber attack or drone attack.
When there is danger in delay and the security of our state, lives, health, and property of persons are seriously threatened, the Prime Minister must have the right to decide on deploying our armed forces abroad, declaring a state of war, and declaring a state of emergency. The government will immediately review his decision and may revoke the Prime Minister's decision within, say, 24 hours. Subsequently, the Chamber of Deputies and the Senate will review the decision. Both chambers could again revoke the decision within another 24 hours.
2. General Rules
It is necessary to untie the government's hands regarding the deployment of soldiers for 60 days by removing the reasons for which they must be deployed. A state of war must sometimes be declared before an attack is carried out against our country. A state of emergency should be declared by the Prime Minister with subsequent parliamentary oversight when lives and health are also threatened.
Cyril Svoboda
