This post first appeared on presidential-power.com on 17 September 2014
The first three months of the presidency of Slovakia’s self-styled ‘first independent president’ (he has not held membership in any political party at any point in his life) Andrej Kiska have been far from inactive, despite the political low season that usually occurs during parliament’s summer recess. Thereby, the issue of judicial appointments has once again returned to the political agenda. While the reform of the judiciary was part of Kiska’s electoral manifesto, it also shows that this is one of the few areas in which the Slovak presidency might still be able to exert decisive influence.
Right from the start of his presidency, Andrej Kiska was thrown in the deep end. Apart from a number of inaugural visits abroad, he had to deal with an invitation to the 70th anniversary of the Slovak National Uprising that his predecessor had extended to Vladimir Putin without consulting the government or the new president-elect. He also had to decide on proclaiming a controversial referendum on issues surrounding same-sex partnerships initiated by a citizens (he opted to ask the Constitutional Court to review the proposed questions) and most recently attended that NATO summit in Wales. While his promise to station NATO troops in the country was met with great opposition by the government and is likely to lead to more conflict in the future, Kiska picked his first fight with government parliament on an issue that already created conflict between these institutions and his predecessor, i.e. the judiciary.
During his first week in office, Andrej Kiska was faced with the decision of whom to appoint as new judges to the country’s Constitutional Court. Parliament had already delivered a list of six nominations to his predecessor (who chose not to concern himself with the issue during his last days in office) from which Kiska – according to Art. 134 II of the constitution – was to appoint three. However, Kiska only appointed one candidate and subsequently demanded that parliament resent him with new candidates, citing their lack of experience with regards to constitutional law and justifying his actions by his oath of office. Naturally, the request was rejected by parliament and government and – partly due to parliament’s summer recess – no further actions have been taken from either side. Only two weeks later, Kiska used his first veto on a bill that among others foresaw to make elections in the Judicial Council (self-governance of the judiciary in Slovakia) secret and later rejected the appointment of a judge due to alleged irregularities in the selection process.
Kiska’s activity in this area thereby does not seem to be solely motivated by his wish to implement his electoral promises, some of which (e.g. the donation of his salary to families in need) he has already been able to implement with publicity effect. The judiciary also presents one of the few areas in which the Slovak president is still be able to exert decisive influence. The president does not have mentionable power over government formation and censure (while presidents can theoretically reject candidates, they have not done so since 1993) or over substantive legislation as their veto of such bills is almost always overridden. Due to the very frequent use of vetoes by Kiska’s predecessors Schuster and Gašparovič, the power has also largely lost its potential to be used as a clear signal to voters.
In contrast, there is only little constitutional practice on president’s discretion in judicial appointments and the precedent case of Ivan Gašparovič’s refusal to appoint a new public prosecutor has shown that Kiska might be able to force his preferences and otherwise has to fear little consequences. Given that Kiska will remain in opposition with the government for the next two years (or even longer should the party of the centre-right continue to fail at uniting against the SMER party of Prime Minister Fico), having well-disposed judges on the constitutional court would certainly strengthen Kiska’s otherwise rather weak position.
Thus, although Kiska’s activism regarding the judiciary may partly be motivated by his wish to fulfill the promises of judiciary reform and fighting corruption on whose basis he was elected, it could not only help to secure his re-election but also strengthen his position vis-a-vis parliament and government. This would particularly be true if he actually plans to remain completely independent politically (i.e. not even form an informal affiliation with one of the centre-right parties) and lets the cohabitation with the government – irrespective of its party composition – continue.