Draft Constitutional Amendment on Slovak Judiciary Made Public

On July 13, the Ministry of Justice (MoJ) of the Slovak Republic submitted a draft constitutional amendment on judicial reform into the interdepartmental review. The bill is an attempt at a comprehensive reform of the general and constitutional judiciary that implements the main theses of the 2020-24 govt proclamation programme. 

The interdepartmental review restricts pathways to legislative and constitutional change by the executive. Unlike MPs, who are legally exempt from the prepublication, the Cabinet and Ministries must first submit every proposed change of the law on the books into the interdepartmental process (under Act No. 400/2015 Coll. on Lawmaking and the Collection of Laws). The process allows the general and professional public, as well as anyone interested, to comment on the bill before it is presented to Parliament. The prepublication of a piece of legislation allows the public to control the exercise of lawmaking and even constitution-making powers. The author of the bill ought to consider the comments and either agree or disagree with the changes or make alternative proposals.

The MoJ seemingly consulted the constitutional amendment bill on judicial reform widely, including the Judicial Council, the Constitutional Court of the Slovak Republic and other stakeholders. It remains to be seen if the proposed reforms will be received well by the general and constitutional judiciary. The bill focuses on these critical items:

• reform of the composition of the Judicial Council;

• review of the property and declared assets of judges;

• reform of the Constitutional Court;

• constitutional review of legislation in complaint proceedings;

• introduction of retirement age for lower court and Constitutional Court judges; and

• the establishment of the Supreme Administrative Court.

According to the explanatory note to the bill, the MoJ has the following opinion of a constitutional amendment: 

A sensible and prudent constitution-maker implements more extensive changes to the text of the Constitution either (i) due to "tectonic" societal change and the consequent need to adapt the text of the Constitution to the new social contract (in which case the amendment is remaking the Constitution to reflect the new identity of the community), or (ii) due to a change of paradigm of understanding and out views on the optimal design of a specific constitutional mechanism, design of govt power or the function of a constitutional body (in which case the amendment corrects specific elements of the constitutional identity of the community). From this point of view, the proposed constitutional amendment falls within the second category of changes to the master-text Constitution [...] 

Let us return to this reform after some time and judge whether the proposed reforms better specific points of constitutional design or instead negatively impact the document's identity.

Suggested citation: Šimon Drugda, "Draft Constitutional Amendment on Slovak Judiciary Made Public" (slovakconlaw, 26 July 2020) <https://slovakconlaw.blogspot.com/2020/07/draft-constitutional-amendment-on.html> 

Key judicial reform policies from Slovak govt manifesto 2020-24

The general election in Slovakia took place on February 29, 2020, just before the outbreak of the Covid-19 pandemic. The election resulted in the most significant change in the executive in the last decade when the party of the three-time PM Robert Fico (SMER-SD) lost to the opposition party OĽANO. After the election, the President, based on a constitutional convention, entrusted the leader of the political party that won the election with the task of forming the government. 

A new government has to draft and submit its Programme Proclamation for a vote in the Parliament (within 30 days of receiving the mandate from the President). The Programme Proclamation is a crucial document for govt coalitions, which delimits the policy agenda of the new govt for the next four years and points of shared interest. Contentious issues and campaign promises are often omitted from the Proclamation in favour of building consensus.

If the majority of the MPs vote in support of the Programme Proclamation, the govt has received the confidence of the Parliament. However, the initial vote of confidence is often a mere formality since the executive and legislature in Slovakia are intimately suffused.

This short post highlights salient constitutional questions in the 2020-24 govt Programme Proclamation, mainly related to the reorganisation of the Constitutional Court and the reintroduction of vetting of lower court judges.

The government will initiate a constitutional and legislative change of the organisation of the judiciary, namely:

Judicial Council

• A reform of the composition of the Judicial Council of the Slovak Republic to provide for regional representation of judges on the Council. The Slovak Judicial Council consists of non-judges appointed by the executive and the legislature, and members elected by judges from their ranks. This latter group of councillors has been perceived as geographically unrepresentative because most elected judges come from two or three high-profile courts.

• A new practice that the legislative and executive power should always nominate non-judges to the Judicial Council. This proposal sought to balance non-judicial and judicial representation on the Council. However, the govt immediately went against its own proposal when a junior member of the govt coalition nominated a judge for the position on the Council against the opposition of the Minister of Justice.

• A proposal that the legislature will appoint members of the Judicial Council through a transparent selection process.

• Govt response to the Constitutional Court of the Slovak Republic in matters of dismissal of members of the Judicial Council of the Slovak Republic, which has been perceived as ultra vires. This controversial decision of the ConCourt denied the executive and legislature the ability to remove their appointments to the Judicial Council before the expiry of their terms of office. The decision effectively erased the provision in the Constitution, which explicit grants the removal power to the legislate and executive in respect of their appointees to the Council.

Vetting of Lower Court Judges

• Reintroduction of judicial vetting by the Judicial Council of lower court judges. The government proposed to reintroduce, in some form, the constitutional amendment on background checks for judges, which had been invalidated by the Constitutional Court in 2019. 

The specific design of the vetting scheme has not been made public yet. However, it seems that the Council will first conduct a thorough review of the financial declarations of all lower court judges, including the property of close family members. The Council holds an annual review of financial statements of judges, but the reliability of the review has been questioned, based on recent revelations after Operation Storm. If the Council finds discrepancies in a judge's declared income and expenses, the judge may need to be vetted.

Constitutional Court 

• A reform of the composition of the Constitutional Court that would prevent delays in the appointment of judges and introduce a staggered term of office to avoid the concentration power due to selection of a majority of judges by one party of govt coalition.

• Abolition of the practice of secret ballot for the appointment of ConCourt judges.

• To curb the power of the Constitutional Court to deny/approve detention of a judge and a prosecutor general. The govt also proposes to remove the decision-making immunity of judges.

• The introduction of age limit for the office of lower court (65 years) and constitutional (70 years) court judges. There are currently three judges of the Constitutional Court who will serve beyond their age cap.

• Additionally, the govt stated that it would examine the possibility of an extension to the power of the ConCourt to review the constitutionality of statutes in constitutional complaint cases as well as ex-ante.

New Supreme Administrative Court

• The establishment of the Supreme Administrative Court, which will also function as a disciplinary court for judges, prosecutors, executors, notaries, administrators and, where appropriate, for other legal professions. The introduction of another specialised court should also ease the workload of the ConCourt.

Suggested citation: Šimon Drugda, "Key judicial reform policies from Slovak govt manifesto 2020-24" (slovakconlaw, 9 July 2020) <https://slovakconlaw.blogspot.com/2020/07/key-policies-from-slovak-govt-manifesto.html>