Slovakia on its way to Illiberal Democracy: Nullifying the Power of the Constitutional Court to Review Constitutional Amendments

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–Tomáš Ľalík, Associate Professor, Department of Constitutional Law, Comenius University, Bratislava

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On January 30, 2019, the Slovak Constitutional Court (“SCC”) passed its landmark judgment PL. ÚS 21/2014 in which it annulled a part of the constitution. With the constitution silent on the issue, the SCC claimed the power to review constitutional amendments. In the reasoning it adopted the basic structure doctrine developed by the Indian Supreme Court with additional features. On December 9, 2020 the parliament adopted a constitutional amendment banning explicitly the SCC from reviewing the amendments.

This short piece deals with some pitfalls of the amendment in respect of the court’s asserted power. As I try to sketch below, given a great flexibility of the Slovak Constitution, the passing of the amendment in question has made the parliament an unbound constitutional-maker that is neither in line with constitutionalism nor with democracy. Aside from that, the amendment represent a sharp regress in terms of rigidity of the constitution when compared to status quo.n

Flexibility, constitutionalism and democracy

the rigidity of a constitution has an instrumental value. It helps to distinguish the fundamental and structural pillar of constitutionalism, namely the hierarchy between constitution and statutory law. Rigidity underlies the fact that a constitution is the product of the people and binds the state, while statutory law is a result of state organs’ activity and binds the people. Therefore a constitution contains societal goals and ideals and not particular interests of political parties in the power.

On the other hand, too much rigidity is problematic since it prevents an evolution of the document thereby undermining its legitimacy. The optional solution seems to be a regulation allowing an amendment with some hurdles along the amending procedure for an amendment to become valid and legitimate part of a constitution. At the same time Dieter Grimm argues that a proposed amendment should improve a constitution. Unfortunately, none of this is the case with the adopted regulation.

The Slovak Constitution ranks among the most flexible in the world and it is the most flexible among written constitutions in Europe. Ninety MPs alone have the power to pass any amendment in unicameral parliament. Right after its adoption, legal scholars and the SCC attempted to curtail the parliament in its constitutional activity but to no avail. These efforts finally materialised in the judgment PL. ÚS 21/2014, where the SCC (i) declared the existence of the substantive core of the constitution immune from amendment procedure; (ii) partially indicated what lies within the core; (iii) proclaimed judicial review over amendments and (iv) left final word to the people in referendum in the case of an unconstitutional constitutional amendment.

With this bold move, the rigidity of the document suddenly increased since (i) proposed amendments cannot alter or nullify the substantive core and as long as they do, (ii) the SCC may declare such amendment unconstitutional. These two roadblocks are further supplemented by the mechanism involving the people–in the case of unconstitutionality the parliament can hold a referendum where the legitimacy of a change will be put on trial. Even if this solution had been far from perfect, the rigidity improved.

Now, the adopted amendment abolishes these impediments and products of the SCC’s activity. The question is not which institution should have the last word on constitutional amendment or a fight between democracy and judiciary. The pressing question in the Slovak context is to design a constitutional regulation in a way to bring more rigidity and stability to the document and taking it away from political majorities of the day.

In this respect, the amendment fails on full account. To curtail the SCC’s power to review amendments, the parliament negates also the inner constitutional hierarchy that possibly opens up an avenue for future constitutional replacement or complete revision. In addition, the parliament is stripping the people of its power to decide with finality on legitimacy of constitutional amendments. The Slovak Constitution in this vein follows the French tradition of popular sovereignty where the people is the sovereign. It also distinguishes between direct and representative democracy while favoring the former at the expense of later. The sovereignty of parliament à la Commonwealth tradition is completely absent.[1]

With this amendment, the parliament has become the legally unchained sovereign and constitutional legislator. This fact represents a deep regress compared to status quo. What damage can pure majoritarian democracy cause to constitutionalism is evidenced in Slovakia’s neighbourhood – Hungary[2] and Poland. In both countries, the political majorities over time have significantly curbed the powers of constitutional courts leading to unrestricted exercise of power by parliaments and governments respectively. Both are now leading examples of illiberal democracies in the EU.

That something suspicious went on can be evidenced by the following facts: the amendment originally did not contain the regulation banning the SCC to review amendments. This regulation was added only after the interdepartmental stage of the legislative process as a great surprise; the amendment rushed through the parliament in a fast-track legislative procedure due to COVID-19 although it has nothing to do with the pandemic crisis; the regulation was strongly criticised by the President of the SCC in the parliament ,and the amendment was adopted by the tiny qualified majority of MPs (91/150 MPs). No wonder the amendment represents one of the worst examples of constitutional-making in Slovakia.

More than that. The omnipotent parliament and its qualified majority is at odds with contemporary notion of democracy. Nowadays a democratic regime tries to either involve the people at some point in important decision-making activity or make itself subject to external control. How serious the current political majority is with any kind of constitutional control represents a statement by the Minister of Justice, an architect of the amendment. She asserted in an interview one day before the adoption that: “It is not appropriate for the SCC to say to us what the constitution is.” It could not be better explained what the majority thinks about the SCC. She should be reminded that the parliament or other directly elected institutions are not the sole bearers of the people’s will anymore. Firstly, such will is rather dispersed among various institutions including constitutional courts. Secondly, the judicial review is an instrument for contestation of policies and empowers the citizens (minorities) against the government. Sense of acting or empowerment of citizenry has been at the heart of democracy. Although this approach undermines the illusion of unanimous people created by a purely numerical procedures, in the end it strengthens the general trust.[3] To pretend that 90 MPs represent the totality of the people is a complete misunderstanding of contemporary democracy.

Conclusion

There were many options available for fixing the flexibility problem. The improvement will certainly be if the amendment would include some blocks in constitutional legislation such as: obligatory referendum to confirm an amendment; one amendment at a time affecting only one institution or institute; certain time-span between a proposal and confirmation with further participatory mechanisms; dissolution of parliament with the obligation for a new one to confirm the amendment; an escalating structure of constitutional amendment – the more important change, the more complex mechanism for making the change. Accepting even one option would do its job notwithstanding the SCC losing the asserted power.

Unfortunately, nothing happened and constitutionalism in Slovakia got two slaps from both sides: the parliament takes everything while it gives up nothing. The qualified majority (90 MPs) has become legally unbound constitution-maker. Such constitutional change is not only illegitimate but it represents real threat for constitutionalism and moves Slovakia on the brink to join illiberal company of its notorious neighbours. How the story ends is too early to tell. Some MPs are going to challenge the amendment before the SCC. So, India may not be as far away from Slovakia than it appears.

Suggested Citation: Tomáš Ľalík, Slovakia on its way to Illiberal Democracy: Nullifying the Power of the Constitutional Court to Review Constitutional Amendments, Int’l J. Const. L. Blog, Dec. 18, 2020, at: http://www.iconnectblog.com/2020/12/slovakia-on-its-way-to-illiberal-democracy-nullifying-the-power-of-the-constitutional-court-to-review-constitutional-amendments

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[1] The evidence that even in the UK the notion of sovereignty of parliament is not what it used to be represents the judgment of the UK Supreme Court in Miller II.

[2] It is interesting to note that the Hungarian Constitutional Court in fact can review at least procedural aspects of a constitutional amendment process according to Art. 24 (1) and (2) of the 2011 Hungarian Constitution.

[3] See Pierre Rosanvallon, Counter-Democracy. Politics in an Age of Distrust, CUP, 2012, p. 202.