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Slovakia:
Problems of Democratic Consolidation
and the Struggle for the Rules of the Game

Sona Szomolányi and John Gould, editors

New York

Columbia International Affairs Online

1997

Bibliographic Data

7. The Development Of Constitutionalism In Slovakia

Katarína Zavacká

Introduction

Citizens should feel that a state constitution is stable over time. Every change of a constitution results in a consequent alteration of the legal system of the state; it starts a chain reaction which eventually directly influences citizens. Constitutional stability can enhance the stability of citizens' legal guarantees. Under communism, however, legal experts learned that the constitution must be flexible. The Communist Party subordinated constitutional provisions to political and ideological principles such as the leading role of the Party and protection of the interests of the worker class. The concept of a durable, stable constitution - superior to political requisites - is relatively new in post-communist societies.

November 1989 heralded a new era in the constitutional development of Czechoslovakia, but it has not necessarily brought constitutional stability. Before the break-up of the federal republic and creation of an independent Slovakia, 46 new constitutional laws fundamentally changed the federal constitutional system. 1 Lawmakers drafted a new Slovak Constitution following the June 1992 decision to break up the Czechoslovak federal state. However, in the process of writing the Constitution, political expedience took precedence over a systematic and extended discussion by the professional legal community. Many legal experts made a number of serious objections to the new document which were not taken into account by the constitutional lawmakers. Nor did these experts have an opportunity to review or critique the final version before it took effect on January 1, 1993, the day the new Slovak state came into existence.

The ill-considered process of constitution writing complicated the task of establishing the principle of constitutional stability in post-communist, post-independence Slovakia. Surveying the yet-to-be tested Slovak Constitution in mid-1992, the leading candidate for chairman of the Slovak Constitutional Court, M. Èiè, warned, ,,The Constitution is not a perfect work... if the National Council adopts it as proposed, we will not be able to avoid corrections when life asks them from us. Maybe after a few months, it will even be necessary to make corrections and revise laws" (Èiè, M. Národná Obroda,  August 3, 1992). At the same time, opponents to the new Slovak Constitution voiced a number of specific objections. The main concern was over the separation of powers. Constitutional provisions determining the distribution of responsibilities between the Slovak National Council, 2 the President, government and courts are frequently inadequate and risk placing inappropriate concentrations of executive power with the government. In practice, the current government of Prime Minister Vladimír Meèiar and his parliamentary majority have an established track record of taking advantage of ambiguities in the Constitution when possible and ignoring constitutional postulates when convenient. They are limited only by a weakened President and an embattled court. On balance, the battle has tilted slightly in favor of the government and this, in turn, has undermined the guarantee and enforcement of basic human rights and liberties.

The following paper explores constitutional weaknesses and a number of areas where the application of constitutional provisions has been inadequate. It concludes that flaws in the Constitution, and the subsequent rough and tumble of politics in coping with these flaws have enabled the ruling coalition to obfuscate or simply violate rule of law in order to ensure their political hegemony. Moreover, the ruling coalition seems to flout constitutional provisions in a remarkable number of the laws it has passed. This has weakened constitutional stability; The consolidation of democracy in Slovakia continues to be shaped by controversy over how or whether the state will honor constitutional guarantees and protect citizens' rights and liberties.

1. Constitutional Ambiguities On The Separation Of Powers

As P. Kresák noted in January 1993, the current Constitution creates tension and conflict between the President and the Prime-Minister (Kresák, Notes to the Government of the SR , p. 8). Constitutional scholar O. Oveèková warned that it was unclear whether, "during one election period, the government will be able to take steps which won't be corrected by society" (Oveèková, Constitutionalism , p. 108). This question is important for two reasons: First, while democratic forms of government are generally based on majority rule, a well-balanced democratic political system should also seek to establish "coexistence with plurality and equality, respecting and protecting minorities." It is therefore necessary, the analyst concludes, "to watch from [a] legislative and executive perspective how coexistence is created, developed and constrained. If the majority principle alone is dominant, [the political system] no longer has much in common with democracy, it becomes only a dictatorship of several cliques in power" (Oveèková, Podpora ústavnosti , p. 2). Slovak politics, however, is characterized by what one analyst calls, a "tendency to glorify the majority principle" (Kresák, Notes , p. 9). The lack of respect for the principle of coexistence in Slovakia is partially founded in a popular legal culture--shared by citizens and many parliamentarians alike--that dates back to the totalitarian conception of parliament as the executor of the political will of one party (Marx-Leninist Theory of State and Law , passim). Perhaps as importantly, the Constitution does not specify procedures or principles of parliamentary behavior that might prevent the ruling majority from completely excluding the minority from any relevant input into the legislative and decision-making process (Kresák, Notes , p. 13). Yet, since independence, the ruling coalitions of Prime Minister Vladimír Meèiar have exacerbated these tendencies by frequently asserting that the majority principle in itself creates a democracy.

This trend has been particularly marked under Meèiar's third government which, since it assume power in December 1994, has been congenitally unwilling to communicate or cooperate with the parliamentary and non-parliamentary opposition. In practice, the Meèiar government has systematically excluded opposition parliamentary delegates from a significant number of key parliamentary and government oversight committees. Moreover, ruling delegates defend their unilateral actions in the unapologetic rhetoric of a coalition bent on monopolistic control based on the principle of majority rule, claiming, "democracy is the terror of the majority" (E. Zelenayová, Member of Parliament, HZDS, as cited in, SME , June 7, 1995) and "the winner takes all" (V. Móric, Member of Parliament, SNS, as cited in, PRAVDA,  February 7, 1997).

The analysts' second concern is that, against the background of these fundamentally intolerant and uncompromising political attitudes, the Constitution provides few institutional guarantees that prevent the "reduction of the definition of democracy to the power of the majority." The dominance of the principle of majority rule over the principle of majority-opposition coexistence is permitted by the Slovak constitutional relationship between Parliament, the President and the government cabinet. The potential exists that a single party or coalition of parties to capture most important executive and legislative powers.

Perhaps most importantly, Slovak parliamentarian forms preclude a strong, independent head of state that can serve as a check on parliamentary power. There are a number of limitations on presidential power. First, the Constitution provides that the President is politically responsible to Parliament. According to Article 86, paragraph b (henceforth noted in the form 86/b) and Article 106, Parliament has the power to recall the President from his position for political reasons. Specifically, Article 106 permits a 3/5ths majority of Parliament to recall the President for activities "leading to dissolution or destruction of democratic constitutional system." Meèiar's political formation, Movement for a Democratic Slovakia (HZDS), has attempted to implement this clause on several occasions since the 1994 elections. A second limitation on presidential power is the President's limited veto power. Parliament can override a presidential veto with a 51 percent vote. This reduces the President's veto to a symbolic gesture of political resistance. A third limitation is that the President cannot dissolve Parliament in the case of a political crises. The absence of this power is a totalitarian relict that creates a number of potential problems in the resolution of a serious internal political crisis such as a vote of no confidence in the government or a call for early elections. Finally, while the President has the right to be present at a session of Parliament, he/she cannot address the body unless invited (Article 102/p).

Several other provisions govern Presidential power vis a vis the government cabinet. Again, the government comes out on top. First, the President is constitutionally required to comply should the cabinet ask him to pass an act back to Parliament. The President may also sit in cabinet sessions, chair them and ask cabinet ministers to provide government reports (Article 102/r), yet this provision is not used because there is no legislation compelling the cabinet to comply.

The result of the weakened Presidency is that there is a stronger risk that a monist system, comprising an extremely strong Parliament, will emerge in Slovakia. Where there is only one strong party in Parliament, both Parliament and the government might become centrally controlled by that party and may have little reason to include opposition participants--or even opposition view points--in decision-making (Kresák, Notes , p.9).

Perhaps the greatest problem, however, is the constitutional provision for the election of the president. According to Article 101/3 of the Constitution, a 3/5ths majority of Parliament is required to elect the President in the first round. If no candidate is elected, however, there are no provisions lowering the hurdle in the second round. As one expert notes,

There exists a real possibility of a stalemate in Parliament in which no candidate can be elected. The mechanism of elections gives the decision about the candidate to the strongest [party/coalition] in the parliament, but even the strongest may not be able to elect the president and so this highest state function can become the subject of bargaining over different political agreements and compromises. Even the best independent candidate doesn't have a real chance to become President because this will be strongly dependent on a party, and there is a pre-condition that the President will act [in interest of the party, support of which he needs their interests]. Citizens and smaller state departments do not have a chance to say a word about the process of electing the President. (Kresák, Notes , pp. 10-11)

An impasse over the presidential election may emerge in the next elections scheduled for 1998. The current government coalition has less than the 3/5ths majority needed to elect the President and it is quite likely that the Parliament will be unable to settle on a compromise candidate. There is thus growing anxiety about the possibility that the Slovak Republic could be left without a president. In such a case, presidential powers and functions are transferred to the Prime Minister--including, negotiating and ratifying international agreements, commanding the armed forces, and declaring a state of emergency or a state of war (Article 102). Parliamentary opposition would then be in a painful and awkward position--powerless and static--and would have virtually no power to interfere or influence legislative or executive power.

Attempts to solve the problem of electing the President have been complicated by contradictions and misperceptions regarding the role of referendums in Slovak politics. In Spring 1997, the opposition attempted to solve the Presidential election problem through a referendum calling for direct presidential elections. Article 93, however, does not allow the Constitution to be changed by a referendum, except under a set of poorly-defined cases that involve "an important question of public interest" (Article 93/2). 3 The Constitution is also less than clear on where ultimate sovereignty resides - with Parliament or the people. Article 99, for example, allows the Parliament to change or invalidate the results of a referendum after three years, while Article 72 declares that Parliament, "is the only constitutional and lawmaking body of the Slovak Republic." On the other hand, "the responsibility of Parliament considering basic problems of public life," can also be "transferred to the citizen," in which case, according to Article 98, referendum results "substitute the powers of the NRSR [Parliament]" (Nikodym, p. 273).

Slovak politicians have done little to clarify the role of referendums in Slovak political life. For example, Ján Èarnogursky Chair of the Christian Democratic Movement (KDH), declared in January 1993 that suggestions about holding a referendum on the break-up of Czechoslovakia were nonsense, despite a constitutional article that specifically required a referendum on questions of secession (Èarnogursky, Constitutionalism , p 140). Ironically, in winter 1997 Èarnogursky's KDH initiated the referendum on direct presidential elections despite the fact that the contemporary Slovak Constitution includes no such mechanism for instituting constitutional change.

An additional constitutional ambiguity concerning presidential powers concerns the appointment of judges. On January 14, 1993, Prime Minister Meèiar set a precedent when he appointed judges, including the chairman and vice-chairmen, to the Constitutional Court. The Constitution reserves the right to appoint "higher state officials" to the President, but at the time, Parliament had yet to elect a president, The legality of this act was claimed on the basis of the legal argument that Constitutional Court judges are not "higher state officials," therefore their appointment is not a presidential power (Èiè, Constitutionalism , p.127). Ironically, the new court chairman, M. Èiè--himself a former member of the ruling HZDS - argued both before and after his appointment that the act was constitutional.

2. Constitutional Ambiguities And The Courts' Independence

The Slovak Constitution fails to guarantee the independence of the Slovak Court system. After experiences with "independent courts" in the previous regime, this issue is clearly one of concern. Socialist theory of state and law gave courts the mandate to work according to the laws set by the state to safeguard the interest of the working class or "the people" (Marx-Leninist Theory of State and Law , p. 199). In practice, the Communist Party defined the interest of the working class ad hoc to safeguard the interests of the ruling elite.

The current Constitution contains potential threats to courts' independence. According to Article 145/1 the government proposes judges for election by Parliament for a four year term. After this time the government may propose them for reelection for an unlimited tenure. The reelection of judges exposes them to a potential source of direct political influence. Judges know that when they come up for reelection after their four year terms they may come under heavy political pressure. 4

3. Parliamentary Mandates

Constitutional provisions regarding parliamentary mandates of deputies are a vast improvement over socialist era stipulations, but even here there are weaknesses. Moreover, the Constitution appears recently to have come under direct assault by the party leadership of Vladimír Meèiar's HZDS. Under communism, parliamentarians were bound by party discipline to vote the party line. If they left the Party, they lost their Parliamentary seat. Article 73/2 of the Slovak Constitution guarantees that "members shall be the representatives of the citizens, and shall be elected to exercise their mandates individually and according to their best conscience and conviction. They are bound by no directives." During the fall of 1996, however, HZDS co-founder Frantisek Gaulieder decided to leave HZDS but unambiguously indicated a desire to retain his Parliamentary seat. The ruling coalition, citing a previously-signed resignation letter, subsequently deprived him of his mandate despite his--and the opposition's--vigorous protests. Gaulieder argued that HZDS MPs had been required to sign resignation letters in advance in order to be allowed to be a candidate for Parliament. If true, this would violate Article 73/2. 5

While the purging of Gaulieder from Parliament appears to be a clear violation of the Constitution, the document is not without potentially questionable constitutional means for removing members of Parliament. Article 81/2 terminates a parliamentary mandate if the MP is sentenced for a hard crime. This provision came under greater scrutiny when the Slovak National Party (SNS), one of three major ruling coalition parties, sought to pass a "State Protection Act" which rendered criminal a number of ambiguous forms of "anti-Slovak" speech. Fortunately, another coalition party, the Association of Workers of Slovakia (ZRS) chose to vote against the act in apparent retribution for HZDS actions on the issue of bank control and privatization. Yet the near introduction of political speech crimes reflects the danger of this constitutional provision.

4. Basic Human Rights, Liberties And Their Guarantees

The most important part of the Constitution is found in Part II, outlining basic human rights and liberties. Part II safeguards are broader in scope than constitutional Law 23/1991, which adopted the Helsinki "Bill of Rights and Liberties" (1976) into Slovak law. The guarantees contained in the Constitution and Law 23/1991 are relatively adequate and uncontroversial. Significant problems, however, have emerged through poor and often politically motivated government policies which frequently fail to safeguard or enforce constitutional guarantees.

Perhaps most glaringly, the government has failed to repair a number of weaknesses in laws guaranteeing the ability of Slovak citizens to assert their basic human rights and liberties. For example, article 17/2 of the Constitution states that "nobody shall be persecuted or deprived of liberty unless for reasons and by methods set by law." This statement also existed in the socialist Czechoslovak Constitution of 1960. In 1969, Act 58/1969 guaranteed compensation for losses caused by incorrect state institutional decisions or processes. The act is still in effect, although up until now, there have been no further regulations to implement these laws. The result is that a citizen cannot get the compensation to which he is entitled.

The Slovak government also failed to guarantee basic rights during the now-infamous kidnapping case of the President's son, Michal Kováè, Jr. (For a full account of the case, see Prusák pp. 305-306). After having been kidnapped to Austria and then held by an Austrian court pending a decision on how to deal with the politically charged case, Kováè Jr. pointed out several times that he was being deprived of his Article 11 right to enter his own country. He demanded that his government request the return of its citizen to his homeland. When they did not, he argued that the state institutions of the Slovak government, in violation of Ministry of Foreign Affairs Decree 120/1976Zb., failed to ensure adequate enforcement and protection of the law. Indeed, the Constitution and several international agreements on human rights and liberties required some government action. This inaction led one analyst to speculate, "Such behavior is a textbook example and manifestation of the functioning of a police state" (Prusák 1996, pp. 305, 306, 310).

An additional area where the government may failing to maintain its citizens' rights is related to Article 19/1, which stipulates, "every person shall have the right to maintain and protect his or her dignity, honor, reputation and good name." In addition to protecting one's name from abuse, this provision might also be interpreted as ensuring that a citizen can protect one's name from being changed without agreement. If one accepts this interpretation, then two acts, the Register of Births Act 154/1994 and the Language Act 270/1995--in which the Ministry of Culture requires female citizens whose registered birth names do not end in the suffix "-ova," to add the suffix "-ova" to their name in official communication--could be construed to violate the constitutional protection of one's name.

In addition to failing to actively uphold the Slovak Constitution, the ruling coalition has recently passed a number of unconstitutional amendments to otherwise constitutional acts that form serious threats to citizens' legal insurance. Act 370/1994 concerning the privatization of national property, conflicts with the Constitution, especially with constitutional article 12/1, which stipulates that "All human beings are free are equal in dignity and rights. Their fundamental rights and freedoms are inalienable, irrevocable and absolutely perpetual." An act passed in November 1994 by the new electoral majority led by Meèiar's HZDS, canceled a number of the privatization decisions of the previous Moravèík government. At the time, HZDS opponents argued that Act 370 was clearly unconstitutional; a mockery of parliamentarian democracy. Within several months, the Constitutional Court affirmed in 6/1995, PL. US 16/1995 that the act was indeed unconstitutional, violating article 12 cited above, as well as parts of constitutional articles 13 and 20. In response, Meèiar bitterly attacked the Constitutional Court, labeling it "the ill element of the Slovak political scene."

The Constitutional Court has also declared additional Parliament Acts on privatization unconstitutional. Decision number 11/1995, PL. US 33/1995 of the Constitutional Court decided that article 24/10 of Act 190/1995--an act replacing the voucher method of privatization with the bond method by amending Act 92/1991 on large scale privatization--clashes with a number of constitutional provisions. 6

Amended laws concerning property rights also conflict with the Constitution. One anomaly was that Parliament passed an amendment to Act 286/1992 about income taxes before parts of the original Act 286 had taken effect. A second anomaly concerned Act 159/1993 which amended Act 317/1992 to retroactively raise taxes on fixed assets by 25 percent--leading one analyst to question "whether it is just for the state organ to force payment in the case where the citizen refuses or can't meet the new obligations. According to the state legal provisions, law should not only have a regulating function but should also guarantee protection against unfair state processes" (Dobrovièová 1994, pp. 302-303).

5. Minority Rights

Articles 33 and 34 of Part II of the Slovak Constitution deal with minority rights. Current government policies maintain high tensions in this area. One reason is the high pressure placed on the government by nationalist MPs of the coalition and the forceful lobbying of Matica Slovenská, an independent association dedicated to the vigorous preservation and promulgation of Slovak national awareness and culture. Despite a constitutional requirement to pass an act specifying conditions for official use of minority languages in Slovakia, the government has yet to propose a complying law--even though they keep promising compliance to the European Council. Act 270/1995 is the major language law currently in effect on the state language of the Slovak Republic. It is a clear step backwards from the previous ÈSFR Act 428/1990, and unacceptable to Slovakia's significant ethnic minority population. In support of this act, Act 68/1997, passed on February 13, 1997, gave Matica Slovenská a quasi-official status, allowing the state to delegate to it certain state functions and provide it with funds from the state budget. 7 The act received opposition support, minus Hungarian parties, which perhaps explains why it has yet to be submitted to the Constitutional Court for review. However, by privileging one private organization over others, this act is undemocratic; It is also probably unconstitutional and appears strongly nationalistic. Moreover, this act, combined with the State Language Law, seems aimed to achieve the assimilation of Slovak minorities.

Another act, passed on February 14, 1997, determines which émigrés from Slovakia are eligible for the special status of a "Slovak Abroad." At the behest of Matica Slovenská, the Ministry of Culture proposed to base the act on the same racial principle that underlay the Jewish Codex of 1941. Thus, a Slovak abroad is considered one who can provide documentary evidence of their Slovak ethnic  background through at least one grandfather. Proving the Slovak residence or Czechoslovak citizenship of one's grandfather is not enough. The act could thus exclude Slovak minorities living abroad. Non-Hungarian opposition parties also supported the act.

Conclusion

Czechoslovak legislative development from 1989 to 1992 and Slovak developments after January 1, 1993, reveal a number of alarming trends in Slovak legal transformation. First, the original conception of the Slovak Constitution contained a number of flaws and ambiguities. These have subsequently provided the current ruling coalition with the space to achieve many of their political goals--even as they violate the spirit of the Constitution. Second, and perhaps most importantly, Parliament has produced a disquieting body of poorly written and unconstitutional legislation. Whether the cause has been a combination of a government priority on political expedient over legality or simply results from the poor legal work of legislative experts from individual ministries and government, as of March 1997, the President had used his right to veto 25 times and the Constitutional Court had produced numerous damning verdicts and resolutions.

Despite the remarkable efforts of the Court and President in attempting to maintain rule of law, the Meèiar government's disregard for constitutional principles has seriously compromised constitutional development in Slovakia. Moreover it casts doubt upon the future of the Slovak Republic as a lawful state. A state does not become lawful just by declaring it in the Constitution but by the fact that the principles of lawful state are used and kept in public life.

References

Note 1: This does not include the Constitution of the Slovak Republic, passed on September 1, 1992 as Act # 460/1992 included in the laws of The Czech and Slovak Federative Republic but not in the Constitution. Back.

Note 2: Prior to independence, the Slovak parliament was known formally as the National Council of the Slovak Republic (NCSR). Upon independence the formal name became Slovak National Council (SNC). Back.

Note 3: As of this writing, the Constitutional Court is considering whether, and which parts of the Constitution can be changed by referendum. Back.

Note 4: For specific examples and anecdotes, see the following issues of SME , January 17-18-22-24, 1997; February 3-6-11, 1997. Back.

Note 5: Editors' note: Since this writing, the Constitutional Court has ruled that Gaulieder was unconstituionally deprived of his mandate and recommended that Parliament restore his mandate. Back.

Note 6: Particularly, Article 12/1, as well as Articles 13 and 20 of the Constitution. (Zbierka nálezov a uznesení Ústavného súdu SR 1995 , Kosice 1996). For more on the Meèiar government's privatization policy, see Miklos, in this volume. Back.

Note 7: Functions delegated to Matica Slovenská include the duties, "To strengthen Slovak patriotism"; "To raise the national consciousness of Slovaks in linguistically mixed areas of the Slovak Republic"; "To strengthen the relations of cultures of ethnic minority and ethnic groups on the territory of the Slovak Republic with the Slovak national culture"; "To collaborate in the creation of textbooks in selected subjects of humanities for primary schools and secondary." Back.