This post first appeared on presidential-power.com on 30 June 2015
In a post last year I discussed Slovak president Andrej Kiska’s first three months in office and in particular his activism in the area of judicial reform. Since then, the conflict over the appointment of constitutional court judges between Kiska and the government has taken a number of unexpected turns which have opened a new chapter in the complicated relationship between presidents, governments and the judiciary in Slovakia.
On 18 June, Andrej Kiska celebrated his first year in the presidential office. Having beaten Prime Minister Robert Fico, Kiska is the country’s first truly non-partisan president yet given his centre-right policy positions has found himself in cohabitation with the government since his inauguration. While minor conflicts over health care reform and other legislation as well as foreign policy emerged appeared throughout the first year, the most controversial issue has been Kiska’s decision from last July to only appoint one of the six candidates for constitutional court judges proposed by parliament. The Slovak Constitution stipulates that the president chooses candidates from a set proposed by parliament (which is always twice the number of open positions) but offers no guidance on how to proceed if the president fails to do so or by which criteria s/he is allowed to ask parliament for more/other nominees. Since last year, two seats of the constitutional court have thus been left vacant.
After being denied appointment, all three of the judges filed complaints against Kiska in the constitutional court, claiming that his refusal to appoint them had violated their right to take up public office under equal conditions. In March this year, the court’s third Senate ruled in favour of three of the judges, yet apart from determination of guilt and ruling on compensation, it did not issue any further guidance on how the president should proceed (or should have proceeded) – an issue of which some hoped that it would be discussed in the judgement of the other Senate dealing with the separate complaint of the two candidates. However, during the last weeks the two remaining judges have withdrawn their complaint and the court subsequently seized any proceedings in the matter.
The court’s decision in March – although making clear that the president overstepped his boundaries in rejecting five out of six candidates – has unfortunately not brought political actors closer to resolving the issue much closer than a year ago. This is mostly because Kiska and his advisors still question the legitimacy of the ruling. The third Senate includes Jana Baricová -the only judge Kiska appointed last year – who Kiska accuses of being biased as she was involved in the nomination procedure. Nevertheless, a formal complaint and request to hear Baricová as a witness (which would have disqualified her from acting as a judge on the case) was rejected. Yet, eventually a single vote made the difference in the court’s decision which Kiska and his advisors interpret as supporting their claim of bias. These arguments notwithstanding, there are also some problems with the content of the decision as it only insufficiently discusses the way in which the candidates’ rights were violated and failed to spell out criteria under which a rejection would have been lawful (although it should be added that Kiska, too, failed to spell out why exactly he only appointed Baricová). Constitutional experts are currently at a loss of what should be done and by whom. Some argue that Kiska now has to appoint two of the five rejected candidates while others assert that parliament should present four new candidates (i.e. twice the number of open positions) or would only need to present one more candidate as the three nominees from the March decision were still eligible while the remaining two had disqualified themselves by withdrawing their complaint.
The tug-of-war between president and parliament/government over constitutional court appointments is thus likely to continue. Due to the fact that the term of constitutional court judges runs for twelve years and an increasing number of political conflicts is fought in the court, both sides are engaged in a high-stakes game in which one wrong move could have long-lasting consequences. At first sight, Prime Minister Fico and his government appear to be at an advantage given the court’s ruling in March as well as their strong majority in parliament which lets them control all subsequent nominations. However, with general elections approaching (scheduled for March 2016) Fico and his SMER party will be wary to seek a legislative solution (e.g. by changing the constitution or passing a law specifying the nomination procedures to their advantage) which could backfire in the next legislature. Kiska on the other hand needs to make sure that he does not become too active on this issue, thus spoiling his chances to affect policy change in other areas. Yet as the positions of all constitutional judges are up for renewal during Kiska’s term, he may well try to hold out and wait whether parliament will eventually give in to his demands, thus creating a precedent which would significantly increase his power.