Ghostwriters of the Slovak Constitution’s Material Core: Summary of Findings

On January 30, 2019, the Slovak Constitutional Court struck down a constitutional amendment for breaking the implicit material core of the Constitution.[1] This was a historic first not only for Slovakia but also for the broader region because no other European court had previously founded the doctrine of unconstitutional constitutional amendment without textual support in the constitution.[2] However, three years after the decision, there remains normative disagreement about the legitimacy and implications of the judge-made doctrine of unamendability in Slovakia.

In this blog post, I present a new finding that a significant portion of the decision in the case PL. ÚS 21/2014 exhibits lexical similarity to the academic source material without proper attribution. This finding raises serious questions about the ethics of opinion writing at the Slovak Constitutional Court and the capacity of the Court to deliver high-quality decisions in difficult cases under time- and resource constraints. But this post is just a summary of the main findings. If you want to know more, you have to wait for the paper I am writing!

Main Finding

After examining the opinion in the case PL. ÚS 21/2014 for similarity with external sources, I found that there is a significant overlap between the opinion and at least seven academic sources that are accessible online. The matched source material was all published before the resolution of the case in January 2019. The observed similarity pertains exclusively to the part of the opinion on the material core of the Constitution, which is approximately 66 pages long (roughly 21,000 words). My estimate is that 40 percent of the text exhibit close lexical similarity with the source material.

The two sources with the most overlap are the only book published on unamendability in Slovakia The Material Core of the Constitution of the Slovak Republic (2014) and an article from a special symposium on Security Clearances of Judges (2018). Both of these publications have been authored by one of the clerks working on the case, and neither is cited or referred to in the opinion. This has been noted at least by two other authors, Neuman and Káčer, who in their shared text wrote (in a footnote) that they found an unattributed use of academic text in the opinion.[3] Neuman and Káčer suggested that the Court either plagiarised the source material or outsourced the production of the opinion to an external academic advisor (who self-plagiarised). Either of the two options are plausible and we will not know, which one is true without an official communication from the Court.

The Constitutional Court confirmed, in a response to my FOI request, that the clerk had worked on the case in the year 2018. This is a critical piece of information because the clerk’s contract was not recorded in the central registry of government contracts at the time.[4] 

Other Unattributed Source Use

Additionally, there is a strong correlation between the text of the decision and several academic articles, which were coincidentally authored by another external advisor, and a former Slovak Constitutional Court judge hired to work on the case as well as the academic work of a former head of the Czech Constitutional Court. Both of these individuals qualify as what I call "superclerks." Superclerks are former constitutional judges, who upon retirement take on the position of an external advisor to another judge of the Court. Superclerks conduct their work on vastly different terms from other clerks, because of their reputational capital and the knowledge they had acquired previously in the position they once held, but are now to serve.

The first judge-turned clerk has worked on the case from early 2014 until 2016 when his last contract expired. The contract of this advisor is unique because it is only one of the two external-adviser contracts in the government database that specifies the case file. The contract expressly states that the advisor was hired to work on the case PL. ÚS 21/2014. The second superclerk (former head of the Czech CC) wrote an expert opinion on the subject for the court just one month before the announcement of the final judgment in the case.

The full list of academic literature used in the opinion without attribution is as follows: 

• Boris Balog, Materiálne jadro Ústavy Slovenskej republiky (Eurokódex 2014)
• Boris Balog, "Bezpečnostné previerky sudcov," in Jozef Andraško, JUDr. Juraj Hamuľák (eds), Ústavodarná moc verzus kontrola ústavnosti (Comenius University in Bratislava 2018)
• Ján Drgonec, "Základné práva a slobody a vyvodená pôsobnosť Ústavného súdu SR," in Ladislav Orosz, Tomáš Majerčák (eds), Ochrana ľudských práv a základných slobôd ústavnými súdmi a medzinárodnými súdnymi orgánmi – III. ústavné dni (Pavol Jozef Šafárik University 2014)
• Ján Drgonec, "Neústavnosť ústavných zákonov v podmienkach Slovenskej republiky," (2015) 154 Právnik 8
• Ján Drgonec, "Implikované právne normy v ústavnom poriadku Slovenskej republiky," (2017) Zo súdnej praxe 1
• Pavel Holländer, "Materiální ohnisko ústavy a diskrece ústavodárce," (2005) 144 Právník 4
• Pavel Holländer, "Sean Connery, nominalistická revoluce a koncept moderní demokracie," (2015) 154 Právník 1

Method

The method used to identify the similarity with the text of the opinion was relatively crude because the available English plagiarism checkers do not link to databases and repositories of Slovak academic texts. I had therefore manually checked each paragraph in the opinion for matches through a web search engine for matches with available online sources. The analysis was limited to accessible content, however, which means that the real overlap can be higher.

In this paper, I am primarily interested in the lexical similarity between the court decision and academic sources in the Slovak language, but I also find similarities with two texts published in Czech. Lexical similarity measures the correspondence of texts as the "intersection of word sets of the same or different language." It is possible that a comparison of the court decision to the source material in English or German might discover additional overlap, but such analysis goes beyond the scope of this paper. The Court referred to multiple sources in the field of comparative constitutional change.

After identifying a match, I downloaded the source material to an open similarity analysis software that matched the overlapping text pattern between two texts. The software was imprecise because of the limited functionality of comparing text documents. To match the required format, I converted pdf into text files. Formatting issues due to conversion might have resulted in undetected overlap, which again means that the real similarity can be significantly higher.

Suggested citation: Šimon Drugda, “Ghostwriters of the Slovak Constitution’s Material Core: Summary of Findings” (slovakconlaw, 29 March 2022) <https://slovakconlaw.blogspot.com/2022/03/ghostwriters-material-core.html>

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[1] PL. ÚS 21/2014 <https://www.ustavnysud.sk/ussr-intranet-portlet/docDownload/718890c1-f3f4-43d8-9b76-36332dbd9b96/Rozhodnutie%20-%20N%C3%A1lez.pdf>           

[2] See Michel Hein, ‘The Least Dangerous Branch? Constitutional Review of Constitutional Amendments in Europe’ in Martin Belov (ed), Court, Politics and Constitutional Law: Judicialization of Politics and the Judiciary (2019) 195; also Yaniv Roznai and ‘Lech Garlicki, Introduction: Constitutional Unamendability in Europe’ (2019) 21 European Journal of Law Reform 3, 218

[3] Marek Káčer, Jakub Neumann, MATERIÁLNE JADRO V SLOVENSKOM ÚSTAVNOM PRÁVE Doktrinálny disent proti zrušeniu sudcovských previerok (Leges 2019) 60 (n98)

[4] An alternative explanation is that the clerks or external advisors hired by the Court had access to the draft opinion and used it in their academic work before the final judgment in the case. The publication date of the source material, however, mostly precedes the controversy. This indicates that the alterantive explanation, although theoretically possible does not seem true.