While the political
reaction to the hospitalisation
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."
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.
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.
