Presidential Incapacity in Slovakia

While the political reaction to the hospitalisation[1] of the Czech head of state reaches a dramatic crescendo, observers at home might wonder, what happens in case of presidential incapacity in Slovakia? Who acts instead of the president if she is unable to assume duties of her office.

The Slovak Constitution codifies a relatively comprehensive set of rules governing presidential incapacity and the interim presidency. Likely because of the overreach by former acting president Vladimír Mečiar, who almost singlehandedly appointed the whole Constitutional Court in 1993, despite protest from the opposition and later abused the pardon and amnesty powers to protect his cronies from prosecution for the forceful disappearance of Michal Kováč Jr in 1998.

A prime minister acting as an interim president today would not be able to do either of those things. The pardon and amnesty power became non-transferable in 2001, even in the case of presidential incapacity or death, and the power to appoint constitutional court judges would pass to the speaker of the parliament instead of the prime minister. Slovak constitutional law has often developed in response to a transgression or breach of political morality. To paraphrase the American judge Oliver Wendel Holmes, the life of the law is experience, bad or good.

Divided Powers

Be that as it may, Article 105 of the Constitution provides, among other things, that if the office of the president is vacant, or the president is unable to discharge her office for serious reasons (chiefly illness), the whole of presidential powers is divided and passed temporarily to the government and the speaker of the parliament.

Under the terms of the Constitution, whenever the president is incapacitated, the government assumes representative powers and the authority to negotiate, ratify, and litigate international treaties, the power to appoint and recall diplomats, call a referendum, and veto legislation. The government can exercise all or some of these powers collectively or delegate their exercise to the prime minister. The prime minister, however, assumes the sole command of armed forces.

The speaker of the parliament, on the other hand, assumes the power to convene the opening session of the parliament, appoint and remove members of the cabinet, other officials, and senior judges, the power to declare war and mobilise the military. This division operates a delicate balance. It will perform best under the conditions of a coalition or minority government when the PM and the parliament speaker can meaningfully check one another. But if both of these actors belong to a single-party government, the division largely loses its meaning.

Aside from these powers, a portion of presidential powers remains with the head of state, even if she is unable to discharge them in the interim. These powers are colloquially known as non-transferable powers and include, for example, the power to dissolve the parliament, award state honours, pardon and amnesty powers. Even if the head of state dies, these powers remain unattended until the president-elect assumes office.

Seamless Transfer of Power?

For how long will these important powers remain unattended (discounting death)? That depends on the condition of the head of state. For example, suppose the president comes down with a severe case of Covid-19, has to be intubated and potentially induced into a coma. In this scenario, the president cannot discharge her powers "due to serious reasons" under Article 105 of the Constitution, at least while in a coma, potentially longer. Her powers consequently pass down to the government and speaker of the parliament by default.  

That is the theory. In practice, the transfer of powers does not have to be quite so seamless. Presidential incapacity involves legal as well as ethical considerations. As Zuzana Vikárska observed in the case of Czechia, when the health and life of the head of state are at stake, "everyone seems to be very respectful of this delicate situation."[2] The designated actors may hesitate to assume presidential powers in order not to appear too forceful. The relative support of the president vis-a-vis the government and the speaker of the house might also play a role.

Thus, when President Schuster was in critical condition after surgery and had to be put into an induced coma in 2000, the government hesitated and did not assume presidential powers until three weeks after Schuster first fell ill. The government's slow response received criticism from domestic observers and led to delays in the legislative process.[3] One reason for the delayed response might have been the fact that there was no formal procedure for the transfer of powers from the president in the event of incapacity. As a result, the prime minister and the house speaker improvised an act to signify the transfer of presidential powers into their hands, opting for a co-signed emergency declaration.^[4]

Removal from Office

While the initial transfer of presidential powers relies on the government's initiative, the Constitution sets a clear time limit to the president's incapacity. Originally, the Constitution provided that the incapacity of the head of state cannot last more than a year. An amendment to the Constitution in 1999 reduced this time limit to a maximum of six months. Therefore, if the head of state cannot assume the powers of her office within six months of first falling ill, the Constitutional Court has the power to "declare that the post of president has become vacant."

It is unclear how would be this limit calculated if the president had short lucid moments during a prolonged incapacity or if the president was incapacitated for six months but regained total capacity during the case for her removal from office. Either way, if the Court finds grounds for removal, the president's office is terminated, and a new election is called shortly (within 67 days at the latest).

The proceedings to remove the president are based on medical records and require non-judicial expertise. Some comparative constitutions, like the 2003 Constitution of Rwanda (Article 105), require that the decision to remove the head of state be certified by a panel of medical experts rather than judges. Even if that is not the case of the Slovak Constitution, the Court could ask doctors for their opinion through the vehicle of an amicus curiae brief if such a case ever makes it into its docket.

---

[1] Robert Tait, "Czech hospital angered by unauthorised visit to see ailing president" (The Guardian, 15 October 2021) <https://www.theguardian.com/world/2021/oct/15/czech-hospital-unauthorised-visit-see-ailing-president-milos-zeman>

[2] Vikarská, Zuzana, "Post-Electoral Changes in Czechia with a Hospitalised Head of State" (VerfBlog, 11 October 2021) <https://verfassungsblog.de/post-electoral-changes-in-czechia-with-a-hospitalised-head-of-state/>

[3] Daniel Domanovský, "Minister quits after Schuster fiasco" (The Slovak Spectator, 10 July 2000) <https://spectator.sme.sk/c/20008398/minister-quits-after-schuster-fiasco.html>

[4] See generally, A Political Chronology of Europe (Routledge 2003) 233

Suggested citation: Šimon Drugda, "Presidential Incapacity in Slovakia" (slovakconlaw, 22 October 2021) <https://slovakconlaw.blogspot.com/2020/07/key-policies-from-slovak-govt-manifesto.html>