WEBINAR 6: EUROPE (OVERVIEW) - Crises and Constitutional Courts: Lessons from Slovakia
Max STEUER & Sascha KNEIP
20 November 2020
Despite its independent operation since 1993, the Slovak Constitutional Court (SCC) presently has limited ideational resources to build on in responding to constitutional crises and can be expected to face formidable challenges in its jurisprudence after the pandemic. Slovakia’s case shows that constitutional courts may benefit from developing robust understandings of democracy before crises to be able to mitigate them once they arise.
Slovakia is one of the countries of the Visegrad Four, presently a rather infamous grouping for constitutionalists given Hungary’s and Poland’s turn to illiberalism. The SCC comes across as one of the more successful institutions in the region as (1) it managed to resist court-packing efforts; (2) it carries a legacy or resistance to autocratization when it stood up against the regime of Vladimír Mečiar in the 1990s, a prototype for Zakaria’s concept of ‘illiberal democracy’; and (3) it remains a formally powerful institution, endowed with the competences of constitutional review and abstract constitutional interpretation. Although at one moment the risk of an overhaul of the appointment procedure for constitutional judges towards one controlled by the parliamentary majority was imminent, political actors have generally respected the SCC’s decisions.
So far so good. Yet, amidst a global pandemic crisis, surveying the SCC’s case law on crises shows limited ideational resources for the Court to mitigate or respond to some of them. The Slovak case indicates that understandings of democracy developed over time may provide constitutional courts with a resource to cope with crisis situations that at some point inevitably attain a constitutional dimension. Deferentialism, where the CCs give up (or never develop) a consistent framing of democracy beyond unrestrained majority rule, weakens their crisis-mitigating capacity. This has happened in Slovakia, where the Court has advanced its human rights jurisprudence but has had limited results in strengthening checks and balances.
Crises and Democracy
Conceptual discussions on crises in international constitutional scholarship are not widespread. In the USA, Keith Whittington highlighted that constitutional crises as a subtype of crises do not occur only in cases where the US Constitution appears silent or unclear on a fundamental question of political significance. Crises are also tied to core actors’ rejection of ‘constitutional fidelity’. Although discussion persists as to what extent such rejection should be terms constitutional crisis, the phenomenon is not to be underestimated.
In Central Europe, one published volume on constitutional crises considered one of the indicators of constitutional crisis to be ‘a gradual deterioration of the guarantees of fundamental rights and a lack of effective checks and balances’ (p. vi). Hence, constitutional crises are connected to the deterioration of principles of democracy. Conceptualizing constitutional crises as pivotal moments when curtailments of rights and concentration of power occur, the constitutional courts’ treatment of democracy contributes to their capacity to mitigate them.
As everyone who tried to put out a fire without proper tools available knows, the mitigation process must start before the event in question. Hence, to understand a constitutional court’s crisis-mitigating capacity, we propose a nine-dimensional framework adopted from the ‘Democracy Barometer’, a set of indicators of democracy that are suitable for examining constitutional courts’ understandings of the phenomenon in the broad terms of safeguarding fundamental rights and checks and balances. To apply the framework to the SCC, we have identified cases in which it explicitly made a reference to crisis and then situated these references in the broader case law identified by the Court itself as significant in its collection of findings and rulings, thereby giving it the benefit of the doubt and trying to interpret its case law in the ‘best light’.
The Slovak Story: The Pitfalls of Strategic Deferentialism
After the earthquake elections in 2020 (these witnessed the defeat of the political party Smer-SD that had been virtually unchallenged since 2006), Slovakia has adopted a democratic, pro-EU attitude in its foreign policy, with the country’s President serving as a broadly recognized voice for democracy. The SCC has now settled in its fourth term, with all judicial seats being occupied. Our analysis looks back at the SCC’s previous (third) term (2007-2019), which saw a series of crises in the EU with visible jurisprudential aspects, as well as tumultuous domestic transformations including in the aftermath of the murder of a journalist. This period can now be studied in full and serves to identify the current resources the SCC possesses to mitigate future crises.
Explicit references to crises
Between 2007-2019, extensive ‘crisis talk’ was observable in Europe. However, unlike with other constitutional courts in the region, it barely reached the SCC. In economic terms, the Court invoked a reference to crises only in relation to judicial salaries (including salaries of the constitutional judges themselves). In two decisions (PL. ÚS 27/2015, 25, PL. ÚS 8/2017, 39), it struck down the freezing of judicial salaries, claiming that despite the freezing being a response to the financial crisis, it violated judicial independence and the peaceful enjoyment of property by constitutional actors. The decisions fueled an impression of an intra-judicial solidarity ignorant of broader-scale developments in the economy.
The SCC also referred to crisis in the context of inter-institutional struggles surrounding the selection processes of constitutional judges. The issue arose after President Andrej Kiska refused to select three judges out of six nominees put forward to him by the National Council, referring to the lack of expertise of five of the six, all approved by a single-party parliamentary majority. In response to the President’s action that, the SCC’s first senate decided that a new ‘constitutional crisis’ between the head of state and the legislature be avoided (I. ÚS 575/2016, p. 85): it ordered the President to indeed select from the nominations put forward to him, even if that required him go against his understanding of the substantive characteristics a constitutional judge should meet.
Summarizing this brief survey, the Court’s core engagements with ‘crisis talk’ were inward-looking, addressing its own composition and the financial security of its judges in constitutional terms. When seen through the lens of the policy priorities of the key political party at the time, the picture of standing up for the institutions’ independence blurs with the picture of deferring to the interests of the dominant party. Such deference risks the self-marginalization of the Court as an influential institution capable to stand up against the governing majority.
Fundamental rights compared to checks and balances: 1:0
The review of the SCC’s case law in the two broad dimensions enhances the findings identified in cases explicitly referring to ‘crisis’. In short, the SCC was able to stand up against executive-legislative actors in cases concerning the scope of protection of fundamental rights but less so in those concerning checks and balances. This stands in contrast to the 1990s when it is believed to have successfully fought off an illiberal regime precisely on the basis of preventing the concentration of governmental power, but advancing less robust protection of fundamental rights.
Thus, from 2007 to early 2019, the Court succeeded to develop ‘mainstream’ democratic jurisprudence on the protection of freedom of expression, electoral rights and procedural rights (legal equality in judicial proceedings). Yet, it did not recognize the needs restraints in the interaction between governmental institutions. The deficit has been particularly strong in relation to the appointment powers of the head of state, which were first strengthened (PL. ÚS 4/2012) and then weakened again (e.g. I. ÚS 575/2016) in correlation with the political profile of the individual who occupied the position. In both instances, the Court sided with the position of the parliamentary majority on the respective issues, showing deference to the majority. Today, the role of the head of state including in the appointment process for constitutional judges remains contested and may breed further (constitutional) crises.
Slovak Lessons for Constitutional Courts: The Relevance of Time and Commitment to Democracy
In his ‘anti-bully theory’ of judicial review, Yaniv Roznai argues that, when faced with political actors equivalent to school bullies, constitutional courts should avoid ‘going down the bunker’ (p. 28) in an appeasement-like manner, when confronted with efforts to undermine them. Yet, they should also avoid ‘direct confrontation’ (p. 27) which could boost the motivation of assaults against them. Making use of this terminology, the SCC, unlike its Hungarian and Polish counterparts, was rarely subject to bullying during its third term. However, the analysis of its ‘crisis jurisprudence’ questions whether it made best use of this time to buttress its resilience both towards bullies and towards crises emerging independently from them.
The variable of time is essential: from the perspective of ‘normal times’ providing the opportunity to build resilience towards future crises, the SCC could have used its twelve years more wisely, avoiding the facilitation of ‘tug-of-wars’ between heads of states and governing majorities and developing a more robust jurisprudence on the balance between judicial independence and accountability. Despite at times exceeding its competences particularly via introducing procedurally unconventional solutions (e.g. in PL. ÚS 45/2015 where it essentially delivered an abstract constitutional interpretation under the guise of a formal refusal of the petition), its key decisions concerning governmental powers were favorable to the governing majority represented, from 2012 to 2020, predominantly by a single political party (Smer-SD).
A more charitable assessment could invoke the Court’s decision providing robust reasons for coming to terms with past wrongdoings of governmental institutions in the ‘Mečiar amnesties’ case (PL. ÚS 7/2017), and the decision invalidating a constitutional amendment that, together with supporting legislation, would have subjected judges to security clearance procedure run by the executive in the first instance (PL. ÚS 21/2014).
The latter decision, also highlighted (pp. 16-17) by Roznai, exemplifies the Court overcoming the shadow of its previous deference, for three reasons. One, the constitutional amendment was adopted by the governing majority led by the Smer-SD party, towards which the Court was favorable in several earlier decisions calibrating checks and balances. Two, the respective majority was still in power at the time of the decision, moreover, with a potential to influence the selection of future constitutional judges. Three, the Court went well beyond the text of the Constitution, taking up the trouble of justifying such a move when, as dissenting judges argued, similar effect could have been achieved by invalidating the ordinary legislation that was necessary to bring the constitutional amendment to life.
Yet, while the decision is not deferential, it also presents a defense of the people as the constituent power, capable of changing the constitution in a referendum that the Court does not have competence to review. As theoretical as the option sounds in light of contemporary developments in Slovakia, it does indicate that the Court embraced an altogether decisionist conception of constituent power that could breed a future constitutional crisis should such a referendum be held, for instance, by an authoritarian populist leader.
The Slovak case shows that when a constitutional court does not face an imminent constitutional crisis, it is wise to prepare as there might be one behind the corner. This includes backlash against the court emerging as a result of its decisions reacting to natural phenomena, such as a pandemic.
The SCC’s Jurisprudence and the Pandemic
The story presented here is one of the past, because the SCC is now in its fourth term with almost all seats on the bench being occupied by recently appointed judges. Yet, it speaks to the present, with the myriad constitutional challenges presented by the COVID-19 pandemic, that epitomizes the concept of ‘crisis’.
The resilience of (not only) Slovak democracy is being tested against the backdrop of the emergency measures adopted by governments to address the pandemic, with checks and balances coming under strain. The SCC is at the center of this struggle, having just recently suspended the effectiveness of portions of emergency legislation until further substantive review (PL. ÚS 13/2020) and endorsed the declaration of a state of emergency ahead of the second wave of the pandemic (Pl. ÚS 22/2020). We expect more ‘crisis talk’ to come, with limited jurisprudential resources for the fourth Court to tap into from its predecessors.
Finally, if political elites’ eagerness to blame the SCC for its pandemic-related case law grows, such as when slowing down emergency measures in support of individual rights considerations, the Court will need to build on its existing ‘canons’ which may turn out to be insufficient for the mission ahead.
Dr. Max Steuer is Assistant Professor at the Jindal Global Law School, O.P. Jindal Global University, India. His research focuses on constitutionalism in the European Union, constitutional courts in Central Europe, freedom of expression and democracy protection and development. He collaborates with the Department of Political Science at the Comenius University in Bratislava, Slovakia, on the Horizon 2020 project EU Differentiation, Dominance and Democracy.
Dr. Sascha Kneip was a researcher in the Department of Democracy and Democratization at the WZB Berlin Social Science Center. His main research areas were legal and constitutional politics and empirical democracy research. Since August 2020 he is a member of the Federal Agency for Civic Education.