—Simon Drugda, PhD Candidate at the University of Copenhagen
For the fourth time since February, the Slovak Parliament failed to select candidates to replace constitutional judges whose term of office has expired. Only seven judges remain to run the most powerful court in the country. What is more, as the Parliament enters summer recess, the next round of hearings will not begin until mid-September.
The new President of the Constitutional Court (PCC), Ivan Fiačan, has kept a low profile during the controversy. When the Parliament resumes its business, however, the PCC should be prepared to defend his Court. Two senates of the Court are now defunct because there are not enough judges to staff them. The Court has been overrun with unassigned cases and a terrible backlog.
The PCC has two potent statutory and one informal power that allow him to put pressure on the Parliament and contribute to the selection process: 1) the power to nominate candidates for constitutional judges; 2) to attend parliamentary sessions; and 3) the exclusive power to speak for the Court. In this contribution, I examine these three powers that have great defensive potential.
Nomination Power
The selection and appointment process for constitutional judges proceeds in three steps. At the entry-level, nominators present individual candidates for consideration to the parliamentary Constitutional Committee. The Committee then holds live hearings to interview the candidates. At the intermediate level, the debate and selection vote in the Parliament take place. Finally, there is the output level of the presidential appointment, which concludes the process.
The nomination power is generally limited to heads of several prominent state bodies, MPs, and law faculties, all of which should have an interest in meritorious appointments to the Constitutional Court. The PCC also has the power to make nominations to the Constitutional Committee and the character of that power changes in the hands of the Court President based on the time that remains to the end of her term. In the hands of a retiring PCC, the nomination power turns into a tool to select successors. Such a PCC can thus influence the jurisprudence of the Curt beyond her own term of office. To a newly appointed PCC, on the other hand, this power gives the opportunity to hand-pick colleagues with whom to work.
Let us next examine the historical record to see whether PCCs have used the nomination power effectively. In Slovakia, we refer to four “generations” of constitutional judges that correspond in time to the leadership of the four presidents of the Court since its establishment in 1993. I limit my analysis to the first two PCCs who contributed to the appointment of the second and third-generation Constitutional Court. The first PCC Milan Čič used the nomination power only four times but to a great effect. Two of his nominees were successfully appointed to the Court (one as its new President). The second PCC Ján Mazák exercised the nomination power even more frequently. Mazák, and on one occasion his Vice-President, made ten nominations to the Parliament. Five of the ten were successfully appointed to the Court.[1]
The aggregate data for appointments in the observed period 1997-2006 further shows that PCC nominations have a nominally higher success rate at both mid- and output level of the selection process. The following probabilities are not adjusted for each selection and can thus only serve as crude estimates but the average rate of success for a nominee to become a constitutional judge is 17 percent (133 nominees for 23 positions). In comparison, PCC nominations as a subgroup have on average 50 percent success rate (7 judges appointed out of 14 nominees). The nomination power thus can and in the past did influence the selection process.
Power to Attend Parliamentary Sessions
The PCC can also exert indirect influence in the intermediate stage of the selection vote in the Parliament by attending that specific parliamentary session. According to Article 20(1) of the parliamentary Rules of Procedure, the PCC may attend a session of the Parliament she chooses and “cannot be excluded” from attendance by the Chairman of the Parliament. Admittedly this power has only limited effect. The attendance of a parliamentary session does not give the PCC a direct means to force the Parliament to act without undue delay in selecting constitutional judges. However, because the attendance power has never been used before, it would likely attract high media attention and change the incentive structure for the Parliament. It would arguably cause reputational damage to the Parliament if it ignored its constitutional obligations to the face of the PCC.
Power to Speak for the Court
Finally, there is one informal power that the PCC has, but is not based on a statutory rule. The plenary session of the Constitutional Court has adopted an internal practice order, whereby the PCC has the exclusive authority to represent and speak for the Court in public.[2] No other judge is allowed to give interviews, comment on cases or judicial matters. The only exception from this blanket prohibition on extrajudicial speech is the academic and artistic activity of judges. The PCC is thus the single voice that can defend the Court against attacks from the political branches, and equally the only one to criticize the politicians if they fail to fulfill their constitutional obligation to the detriment of the Court.
Conclusion
The powers of the PCC to nominate candidates for constitutional judges, attend parliamentary sessions, and speak for the Court have great defensive potential, but they can also be abused. They overlap with powers of the Parliament in certain respects, and as such should only be used sparsely at times when the Parliament does not fulfill its constitutionally prescribed obligations. I propose that the longer the delay in appointments, the stronger should be the presumption in favor of the PCC to intervene one way or another. The three examined powers make the PCC uniquely equipped to alleviate, if not solve, the problem with appointments of constitutional judges.
Suggested Citation: Simon Drugda, Can the President of the Slovak Constitutional Court Defend It?, Int’l J. Const. L. Blog, July 2, 2019, at:
http://www.iconnectblog.com/2019/06/can-the-president-of-the-slovak-constitutional-court-defend-it?
[1] The practice of the third PCC Ivetta Macejková marks a point of departure. Despite ample opportunities, Macejková used the nomination power only once.
[2] Second sentence of the Appendix No. 1 to the Principles of Media Information on the Decision-Making Activities of the Constitutional Court of the Slovak Republic states: “For the Constitutional Court, only the President of the Constitutional Court, the Vice-President and the spokesman of the Constitutional Court shall provide information to third parties (including print and electronic media).”
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UPDATE:
The President of the Constitutional Court used for the first time on record the power to speak to the Parliament. Before the speech, the Parliament had been unable to select candidates for Constitutional Court judges for several months. There were only 7/13 judges on the Court. Right after the speech of the CC President, the Parliament finally broke the deadlock and selected enough candidates to fill the remaining six vacancies.
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The translated speech of the CC President:
Dear Mr Chairman,
Honourable Members of the Parliament,
As the President of the Constitutional Court of the Slovak Republic, I decided to exercise the right given to me by Artice 28(2) of the Rules of Procedure of the National Council of the Slovak Republic and request the opportunity to address the National Council in a matter that I consider to be extremely important in terms of the effective functioning of the Constitutional Court and ensuring the protection of constitutionality.
At the 49th meeting of the National Council of the Slovak Republic, you will, among other things, vote to select the remaining candidates for judges of the Constitutional Court. I respect the free and independent exercise of the mandate of each Member. By my speech, I do not intend to interfere in any way with this freedom of parliamentary mandate.
I think, however, that the knowledge of the current situation on the Constitutional Court is important for your decision.
The Constitutional Court currently has only 7 out of 13 judges and only two out of the four Senates of the Constitutional Court are fully operational. The 7-member Plenary session of the Court cannot take decisions, as has been made clear, for example, by the inability of the Court to decide in the so-called Lexman case, concerning the European parliamentary election [case of an MEP waiting for a Brexit seat]. The Plenary of the Constitutional Court cannot even effectively govern its own matters, such as changes to the work schedule, because Plenary decisions must be taken unanimously [to reach the constitutionally required quorum of an absolute majority Plenum needs seven votes, the majority requirement does not decrease with Court vacancies].
On February 16, 2019, when the nine Judges of the Constitutional Court left their office, 685 cases were pending. Today, there are nearly 1400 cases pending, and 30 of those cases fall under the jurisdiction of the Plenary session of the Court.
According to the current work schedule, 6/13 of the incoming cases of the Constitutional Court are allocated the so-called “virtual judges” [note: empty placeholder in the electronic docket system of the Court]. To date, there are almost 1000 such unassigned cases, which means that those 1000 files have no Judge-Rapporteur to process them.
In the current situation, the petitioners’ right of access to the Constitutional Court and the right to hear the case before the Constitutional Court within a reasonable time are being significantly violated.
In view of the situation on the Constitutional Court, I would like to appeal to you, to select the necessary number of candidates for constitutional judges at the current session and thus contribute to ensuring that the Court functions properly.
I thank the National Council for allowing me the opportunity to speak and thank you for your attention.
Ivan Fiačan,
President of the Slovak Constitutional Court