[Editor’s Note: This is the fifth and final entry in our symposium on “The Slovak Constitutional Court Appointments Case.” The introduction to the symposium is available here, Part I is available here, Part II is available here and Part III is available here.]
—Tomáš Ľalík, Associate Professor at the Comenius University in Bratislava
Father Christmas or Ježiško (the Baby Jesus in Slovak) usually comes on time but at least as far as the Slovak constitutional law is concerned, Christmas came early this year. The incumbent President Andrej Kiska gave us a reason to celebrate ahead of the holiday when he finally surrender to the judgment I. ÚS 575/2016[1] of the Slovak Constitutional Court (‘SCC’) in the saga over judicial appointments to the Court.[2] His “gift” were three new judges (out of seven possible candidates), sworn in to the office on December 14.[3] The constitutional crisis involving legal, political and media battle is over after three and a half years; and the SCC is again at full strength. This short comment will first answer two critiques raised against the judgment and then foreshadow some long-term implications of the decision.
The Judgment and its Critics
The most prominent criticism of the judgment concerns an alleged legal violation of the constitutional complaint procedure by the I. Senate. Two of the seven candidates sent in a roster to the president did not challenge the decision of the President not to appoint them. Since they did not lodge a constitutional complaint, they should not have been considered by the judgment. The SCC can not remedy an absent will of two applicants.
This argument is based on a formalistic reading of the locus standi and does not consider the context of the case: (i) the extraordinary nature of the case and the absolute necessity to resolve it in terms of objective constitutional law (to ensure the proper functioning of the SCC),[4] rather than uncritically observe the autonomy of applicants to pursue their case; (ii) the factual and legal equality of all candidates regardless of their will to challenge the presidential decision; (iii) effort of the Senate to provide the President with the largest pool of available candidates; (iv) respect for the dicta in PL. ÚS 45/2015 by which two candidates who dropped complaints were already brought back into the appointment process; and finally (v) the precedence of the rule of law principles (axiological arguments) over strict formality of the legal process.
The second line of critique aims at the overly political candidates, whom were selected by a single political party: SMER-SD. The political party may continue to influence the decision-making of the SCC for years through its nominees, the argument goes.
The SCC attempted to clarify the relationship between independence and the law on one end hand and politics on the other. Invoking reputed scholars in this area (e.g. W. Sadurski, M. Shapiro or Ch. Möllers), the SCC opined that a constitutional court is not only a judicial body, but an important political actor too. Courts are not an objective arbiter when confronted with different and often conflicting abstract and indeterminate constitutional values. In-built constitutional constrains, such as a non-renewable term of office, collective decision-making, legal clerks, and the habitus of the institution and the office are meant to prevent a single political, legal or ideological view to prevail on the Court; but its decision cannot be apolitical (neutral). Tracking political leanings of a court is a very complex issue but has not been decisive for the case-law of the SCC, which remains stable over time: declaring less than four statutes unconstitutional per year on average. With the view to 2019 when nine SCC judges are due to leave all at the same time, it is more important to ensure an effective functioning of the Court than who its judges turn to be.[5] But something else was also at stake in this case: the institutional respect for the SCC.
The Moment to Remember
The judgment or the swearing-in of new judges is not what makes up the glory of the day. The criticism against the decision may persist, and both the Parliament and the President could have picked better judges. Nevertheless, this is a moment to celebrate. Until now, it was impossible not to notice the culture of political dominance in the constitutional landscape over all attempts of the SCC to tame it. When resolving sensitive political issues, some of the SCC’s judgments were ignored (e.g. I. ÚS 8/97, II. ÚS 48/97), swiftly rejected, modified or overcame by factual or legal means (e.g. PL. ÚS 6/04, PL. ÚS 17/08, PL. ÚS 29/05) thereby negating their binding nature regardless of dominant political force or composition of the bench. This case was the first in 25 years when a political leader gave way to a SCC decision by doing exactly what was ordered.
The winner of this particularly long and exhaustive battle are, therefore, future judges of the Court. The SCC has gained momentum to resolve nation’s most pressing issues in a binding way. To be sure, there will always be losers and winners after every case. However, this case shows that even the most potent losers need to succumb to an unfavourable ruling. The precedent was set, and from now on, the politicians no matter how sincere their intentions are must respect the role of the SCC in legal and political conflicts. To me, this is the moment to celebrate as the birth of effective judicial review in Slovakia. The moment to remember.
Suggested Citation: Tomáš Ľalík, Symposium on “The Slovak Constitutional Court Appointments Case”—Born is the King: The Day When Effective Judicial Review Arrived, Int’l J. Const. L. Blog, Jan. 27, 2018, at: http://www.iconnectblog.com/2018/01/symposium-slovak-appointments-case-lalik
The author works as a law clerk for one of the judges of the I. Senate. The usual disclaimer applies.
[1] The judgment is available in Slovak at: https://www.ustavnysud.sk/ussr-intranet-portlet/docDownload/90ef4513-52c9-4203-8464-9cc2c952ce0b/Rozhodnutie%20-%20N%C3%A1lez%20I.%20%C3%9AS%20575_2016.pdf
[2] See my earlier comment on this blog. Constitutional Court Crisis in Slovakia: Still Far Away from Resolution, at: http://www.iconnectblog.com/2016/08/constitutional-court-crisis-in-slovakia-still-far-away-from-resolution
[3] See https://spectator.sme.sk/c/20718766/president-appoints-missing-constitutional-court-judges.html
[4] The SCC noted that its work capacity dropped one quarter and proceedings in general prolonged from 9,02 to 11,87 months because of the missing judges.
[5] Political debates about a new institutional mechanism and qualitative criteria for the selection of SCC judges have begun.
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