[Editor’s Note: This is the fourth of five parts in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here and Part II is available here.]
—Kamil Baraník, Assistant Professor of Law, Comenius University in Bratislava
With the decision I. ÚS 575/2016, the I. Senate of the Constitutional Court of the Slovak Republic (SCC) ended a highly controversial and heavily politicized SCC justices’ nomination saga. The case originated in 2014 when a single-party parliamentary majority nominated six candidates for three vacant SCC judgeships. The president refused to appoint five of those candidates and claimed a broad discretionary right to that effect, based on a previous generally binding SCC’s constitutional interpretation that settled another prominent struggle over the scope of presidential appointment powers – the General Prosecutor Case, PL. ÚS 4/2012. The questionable quality of the proposed SCC candidates immediately raised eyebrows, as did the evident lack of safeguards against political exploitation of the nomination process.
The president ultimately accepted the SCC I. Senate decision and following its ratio appointed three new SCC justices. The president, however, announced that the struggle over the future of SCC’s appointment process is not over. In such a controversial issue that steadily raised the temperature of the political climate in Slovakia for years, one would expect at least an indication of a conciliatory tone in the SCC’s decision. Instead, the I. Senate resolved this constitutional dispute between president and the legislature by means of “fire and fury.”
The SCC I. Senate not only obliged the president to confirm three candidates, but it also ventured far beyond the proper judicial territory. First, it declared that even the candidates who did not dispute their initial rejections at the hands of the president remain legitimate contenders for the SCC judgeships. The Senate thereby ignored a fundamental principle of the court proceedings (the dispositive autonomy of procedural parties). Second, the I. Senate tried, without the authority, to speak for the whole Court. The Senate unduly extended the limited effects of senate decision that according to the Constitution have no precedential value and replaced them with a new category of objective, i.e. generally binding law. Third, it acted on a pretense of exigency to “protect” the Constitution and based on a hypothetical, expected delays of the president and parliament. The Senate, therefore, effectively restricted the discretion of these bodies and replaced it with its own will. Fourth, the Senate implied that if the president would not follow its decision, he would intentionally breach the Constitution (although only the full SCC presiding over the case of an impeachment has that a power).
Such a controversial amalgam of reasons, breaching several fundamental principles of constitutional proceedings, is unlikely to produce further conciliation. The decision did not balance interests of the involved institutions and provided only one-sided lecturing. It extended the list of candidates to all previous nominees and, thus, prevented any other SCC senate from taking the opposing view. In cases of potential disagreement among senates, the final decision must be taken in plenary session by the majority of all SCC justices. The SCC I. Senate also declared that decision-making procedures cannot be seen through a too formalistic lens and thus, allowed itself to ignore statutory and constitutional substantive and procedural provisions. The Senate used the law, however, in a very formalistic manner when such mechanical jurisprudence fitted its purpose, especially in regard to the presidential powers that were interpreted very narrowly (e.g. pp. 43, 44.1, 44.2, 59, 60.1, 67), in a striking contrast to the conjured powers of the SCC.
One cannot completely ignore reality. Fairly similar nomination case from recent past (the nomination process of General Prosecutor, PL. ÚS 4/2012), was decided in the light of the ultimate position of the president as a guarantor of constructional order. The SCC cannot abandon this interpretation and pen an entirely contradictory decision without appropriate justification. In the present case, the I. Senate cherry-picked doctrines, case law and scholarly articles that only complimented one side of the argument. Much of the scholarship that the Senate used is highly disputed and there exists at least as many distinguished authors and prominent theories arguing the exact opposite. The SCC Senate, however, did not bother to consider other views and seemed to be completely satisfied with the imposition of its worldview on the entire constitutional system, fellow SCC justices, and the president.
The SCC I. Senate confessed that the most difficult part of the case was to choose the “correct” pool of eligible candidates for the SCC judgeship. It admitted that this issue might be perceived as controversial. However, just several lines below, without any hesitation, the Senate declared its power to ignore the procedural rules for the sake of common good and because of the exigency of the situation. It is striking how confidently the SCC I. Senate deconstructed the long-established logic of the SCC proceedings, even though it could not speak for the whole Court, nor had the authority to bind anyone but the parties to this dispute (inter partes review).
When being interviewed at the Senate Judiciary Committee, then-candidate for the vacated spot at the Supreme Court of the US, judge Gorsuch declared: “…a judge who likes every outcome he reaches is probably a pretty bad judge, stretching for the policy results he prefers rather than those the law compels.” The SCC I. Senate made its own day when it delivered this unwieldy decision based on a host of doubtful arguments. The decision joins a line of past SCC cases that have been visibly politically biased and continue to torment the Slovak constitutional law. Moreover, the settlement may prove to be another SCC’s Pyrrhic victory, making its future decision-making less predictable and vulnerable to charges of illegitimacy from different quarters. The case was a missed opportunity to cement the SCC as a neutral law-abiding institution (the SCC I. Senate implicitly declared itself as politically biased; pp. 64-66) that acts to the benefit of entire society and protects the Constitution regardless of the political issues involved.
Suggested Citation: Kamil Baraník, Symposium on “The Slovak Constitutional Court Appointments Case”—Perplexities of the Appointment Process Resolved by Means of “Fire and Fury”, Int’l J. Const. L. Blog, Jan. 26, 2018, at: http://www.iconnectblog.com/2018/01/symposium-slovak-appointments-case-baranik
 Accessible at: https://www.nbcnews.com/news/us-news/here-s-judge-gorsuch-s-full-opening-statement-n735961