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The Slovak Constitutional Court on Unconstitutional Constitutional Amendment (PL. ÚS 21/2014)

Published online by Cambridge University Press:  06 August 2020

Tomáš Ľalík
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Case Notes
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European Constitutional Law Review , Volume 16 , Issue 2 , June 2020 , pp. 328 - 343
Copyright
© The Author(s), 2020. Published by Cambridge University Press on behalf of European Constitutional Law Review

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Footnotes

*

Associate Professor at the Faculty of Law, Comenius University, Bratislava; email: [email protected]. I am thankful to the editors and an anonymous reviewer for their helpful comments and remarks. The usual disclaimer applies.

References

1 According to reports issued by the European Commission, Slovakia ranks last among EU member states in terms of judicial independence; see e.g. ‘The 2018 EU Justice Scoreboard’, ⟨https://ec.europa.eu/info/sites/info/files/justice_scoreboard_2018_en.pdf⟩, visited 14 July 2020.

2 In the Slovak constitutional system, the Judicial Council is an independent constitutional institution under the judiciary. It promotes the independent status of judicial powers, secures judicial legitimacy and is responsible for the management, administration and transparency of the judiciary. For example the Judicial Council plays a vital role in the process for selecting new judges, elects the President of the Supreme Court, decides when judges are to be transferred or recalled, etc. The Council, however, does not have any disciplinary powers; it can only elect and recall members of disciplinary bodies. Its main powers are enumerated in Art. 141a § 5 of the Slovak Constitution.

3 § 5(7) of the Act No. 385/2000 Coll. on Judges and Lay Judges.

4 The sub-constitutional regulation also forced candidates for judicial service to cooperate with the Judicial Council in verifying qualifications, facilitated the ex lege gathering of information about candidates by the NSA, and detailed the procedure before the Judicial Council and subsequent review by the Constitutional Court. This regulation is, however, rather ancillary in nature; as such, it was not a focal point of the Constitutional Court’s inquiry.

5 In hindsight, this second assertion proved to be correct; the judgment did not provoke a short or long-term backlash of any kind against the Court, except for the fact that it became a topic of debate in the ongoing selection process between MPs and judicial candidates to the Constitutional Court.

6 See, among other authorities, B. Balog, Materiálne jadro Ústavy Slovenskej republiky [Substantive Core of the Constitution of the Slovak Republic] (Eurokódex 2014).

7 It should be noted that the doctrine of unconstitutional constitutional amendment lies at the heart of basic principles of constitutionalism; see M. Kumm, ‘On the Representativeness of Constitutional Courts: How to Strengthen the Legitimacy of Rights Adjudicating Courts without Undermining Their Independence’, in C. Landfried (ed.), Judicial Power: How Constitutional Courts Affect Political Transformations (Cambridge University Press 2019) p. 291.

8 The Court also referred to the wording of the oath taken by judges of the Court and the recent constitutional amendment No. 71/2017 Coll. by which the Court gained the right to perform ex constitutione reviews of the decisions of parliament on abolishing amnesties and pardons.

9 Some commentators noted that by elevating unconstitutional statutory law to the level of the Constitution, thus escaping possible judicial review, the parliament was refusing to engage in a genuine dialogue with the Constitutional Court. Such refusal had to be met with a robust answer. On this, see M. Breichová-Lapčáková, ‘Ústava v ohrození: Zopár zamyslení nad jedným nálezom Ústavného súdu Slovenskej republiky (PL. ÚS 21/2014)’ [The Constitution endangered: Several Reflections upon one Judgment of the Constitutional Court of the Slovak Republic (PL. ÚS 21/2014)], 38 Acta Facultatis Iuridicae Universitatis Comenianae (2019) p. 247.

10 In this regard, the rule of the free evaluation of evidence could not be ensured by either the Judicial Council or the Constitutional Court in subsequent review.

11 In general, the mechanisms for judicial accountability do not work as a result of the fact that the state institutions have not created effective systems for reviewing judges in terms of their work performance, personal matters, and the procedures for holding judges accountable. More recently, efforts have made to resolve the problem by creating a new Supreme Administrative Court that would handle all judicial disciplinary matters.

12 See, on entrenchment scales, R. Albert, ‘Constitutional Handcuffs’, 42 Arizona State Law Journal (2010) p. 671-672.

13 The majority of three-fifths of MPs required for the adoption of a constitutional amendment is an old relic dating back to the Constitutional Charter of 1920 – the first Czechoslovak constitution. From a comparative perspective, the traditional qualified majority of two-thirds was replaced by a majority of three-fifths because, at that time, the Czechoslovak republic was home to a large German and Hungarian minority, which formed approximately a third of the population. As a result, had the traditional majority of two-thirds for a constitutional change prevailed, the change would be subject to approval also by the minorities in the parliament. Such a scenario was deemed impermissible by the political elites of that time.

14 See G. Tsebelis, ‘Constitutional Rigidity Matters: A Veto Players Approach’ (Working Paper 2018) ⟨https://sites.lsa.umich.edu/tsebelis/working-papers/⟩ visited 14 July 2020, in which Slovakia scored 0.61 on a scale of 1.51 (most rigid) – 0.5 (least rigid). Only Jamaica, New Zealand, Thailand, Uruguay, and India have constitutions more flexible than Slovakia.

15 For an overview, see e.g. R. Procházka, Ľud a sudcovia v konštitučnej demokracii [The People and Judges in Constitutional Democracy] (Aleš Čeněk 2011) p. 121 ff.

16 Paras. 66 and 80 of the judgment.

17 For a more detailed analysis, see T. Ľalík, ‘Tracing constitutional changes in Slovakia between 2008-2016’, 58 Hungarian Journal of Legal Studies (2017).

18 In Slovakia, SMER-SD had been the main political power since 2006, with a brief hiatus in 2010-2011. In 2014, SMER-SD was the dominant party, having a majority in parliament. The electoral success of political parties like SMER-SD has consequences for the promotion of judicial independence. According to political theorists, the more electoral success a political party has, the less it cares about judicial independence. SMER-SD’s policies prove this assertion; see M.C. Stephenson, ‘When the Devil Turns…: The Political Foundations of Independent Judicial Review’, 32 The Journal of Legal Studies (2003) p. 72.

19 R. Albert, ‘Constitutional Amendment and Dismemberment’, 43 The Yale Journal of International Law (2018) p. 60 and p. 71.

20 See R. Albert, ‘The State of the Art in Constitutional Amendment’, in R. Albert et al. (eds.), The Foundations and Traditions of Constitutional Amendment (Hart Publishing 2017) p. 10-11; in the American context see A.R. Amar, ‘The Consent of the Governed: Constitutional Amendment outside Article V’, 94 Columbia Law Review (1994) p. 457.

21 Y. Roznai, ‘Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures’, in Albert et al., supra n. 20, p. 37-48.

22 See e.g. S. Gardbaum, ‘What Makes for More or Less Powerful Constitutional Courts’, 29 Duke Journal of Comparative & International Law (2018) p. 12.

23 Albert, supra n. 12, p. 698.

24 E.g. J. Neumann, ‘Ústavný súd SR ako efektívny ochranca ústavnosti pri zásahu do materiálneho jadra ústavy (?)’ [The Constitutional Court as an Effective Protector of the Constitution when breaching the substantive core of the Constitution (?)], 38 Acta Facultatis Iuridicae Universitatis Comenianae (2019) p. 304.

25 D. Grimm, Constitutionalism: Past, Present, and Future (Oxford University Press 2016) p. 238; he noted there that ‘the constitution tends to be a weaker part’ in a constitutional democracy created by democracy and constitutionalism.

26 BVerfG 30 June 2009, 2 BvE 2/08, Lissabon Urteil, para. 217.

27 R. Dixon and D. Landau, ‘Transnational constitutionalism and a limited doctrine of unconstitutional constitutional amendment’, 13 I.CON (2015) p. 627-629.

28 The Court did not explain why it picked these countries in particular (as opposed to others). It can only be assumed that as far as its neighbouring countries are concerned, ie the Czech Republic, Poland, Hungary, and Austria (including Germany), the Court often refers to examples from those countries in its case law.

29 Example given in G. Jacobsohn Constitutional Identity (Harvard University Press 2010) p. 68, fn. 83.

30 Reference re Remuneration of Judges of the Provincial Court (P.E.I.) [1997] 3 S.C.R. 3, para. 83; R. Albert, ‘Theory and Doctrine of Unconstitutional Constitutional Amendment in Canada’, 41 Queen’s Law Journal (2015) p. 171-172.

31 ECtHR Grand Chamber 23 June 2016, No. 20261/12, Baka v Hungary, para. 165; ECtHR 12 March 2019, No. 26374/18, Guđmundur Andri Ástráđsson v Iceland.

32 ECJ 2 August 2019, Case C-619/18, Commission v Poland; ECJ 19 November 2019, Case C-585/18, A. K. v Krajowa Rada Sądownictwa.

33 A. Barak, ‘Unconstitutional Constitutional Amendments’, 44 Israeli Law Review (2011) p. 338.

34 For further reasoning as to why the regulation was unconstitutional, see also the above text.

35 See e.g. B. Balog, ‘Ústavoochranca na temnej strane sily?’ [Protector of the Constitution on the Dark Side of the Power?], 38 Acta Facultatis Iuridicae Universitatis Comenianae (2019); Breichová-Lapčáková, supra n. 9; J. Drgonec, ‘Neústavné ústavné zákony a ochrana ústavnosti SR’ [Unconstitutional Constitutional Amendments and protection of constitutionalism in the Slovak Republic], 24 Zo súdnej praxe (2019).

36 On this last point, see W. Partlett, ‘Dangers of Popular Constitution-Making’, 38 Brooklyn Journal of International Law (2012) p. 234 (claiming that popular participation in the constitution-making process should be avoided in countries with weak institutions). In this regard, Slovakia seems to have relatively stable institutions and there have not been any attempts to undermine them either legally or factually.

37 For an overview, see Y. Roznai, ‘Unconstitutional Constitutional Amendments: The Migration and Success of a Constitutional Idea’, 61 The American Journal of Comparative Law (2013) p. 657.

38 See also R. Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press 2019) p. 151.