Unamendability Preserved in Slovakia, but only as a Last Resort

On January 30, 2019, the Slovak Constitutional Court invalidated a constitutional amendment for breaking the implicit material core of the Constitution. It 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. This is a critical distinction, because the stickiness of the unamendability doctrine, or any new doctrinal development, depends on domestic normative sources justifying such a development as well as the power of the court, its popular support and the acquiescence of the losing party (often the legislature or executive).

The amending actors in Slovakia did not acquiesce, however, nor did they hesitate to adopt a new constitutional amendment rejecting judicial review of constitutional change in retaliation. The opposition challenged this action arguing that a judicially enforced doctrine of unamendability is a necessary component of a modern-day liberal democracy.

Then at the end of May 2022, the Constitutional Court finally had its say. The Court opted for a passive-aggressive approach, issuing what is colloquially known as a quasi-meritorious judgment. The court rejected the petition in a procedural ruling but supplied it with the reasoning that would fit better with a meritorious decision. A quasi-meritorious decision indicates that the Court wants to speak on the subject but for whatever reason cannot. In this case, the Court rejected the petition because the amendment it was supposed to review, prevented it from reviewing constitutional amendments.

In the decision, the Courts confirmed its previous position that the Constitution, or at least its core, is unamendable and those core principles may in the extreme require judicial protection. The Court continues to maintain that the amending actors are not the absolute sovereign and are in fact limited in the exercise of great power by the basic constitutional framework delimited by The People at the moment of founding.

In the view of the Court, the Constitution is not value-neutral: "Although every legal norm is fundamentally changeable and revocable, from the point of view of the Constitution adopted in 1992, the basic principles of a democratic and rule of law (even without such explicit wording) are immutable." These values express the essence of the constitutional law posited by the sovereign (but identified by the Court through its case law), which can be further articulated by the amending actors to the extent the values are not broken.

The Court held that with the adoption of the constitution, the "unlimited sovereignty of the citizens was transformed into the sovereignty of the state on its territory, exercised by a system of the delegated powers." The three delegated powers are limited in competence and ought to be exercised to, among other things, protect democracy retrogressions. So the amending actors can do wrong, but the Court will generally exercise restraint when it comes to constitutional change. The Court accepted that the Court itself is too a limited power, which means that it cannot, in the time of ordinary politics review a constitutional amendment.

The Court essentially found that absent extraordinary circumstances, functional judicial review of constitutional change is not part of the material core. In extreme cases, however, of a core violation that has the intensity to change the character of the Slovak Republic as a democratic state based on the principle of the rule of law, the Court must intervene as the "constitutional guardian." If the amending actors were to overreach, the interpretation of the Constitutional Court's own competences would have to be extensively adapted to it to ensure the integrity of the founding document.