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, as no other European court had previously established the doctrine of an 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 cannot for whatever reason. 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 that 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 delegated powers." The three delegated
powers are limited in competence and ought to be exercised to, among other things,
protect democracy from retrogression. 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 also 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.
Suggested citation: Šimon Drugda, “Unamendability Preserved in Slovakia, but only as a Last Resort” (slovakconlaw, 16 June 2022) <https://slovakconlaw.blogspot.com/2022/06/unamendability-preserved-in-slovakia.html>
