Steuer, Max David

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The First Live-Broadcast Hearings ofCandidates for Constitutional Judgesin Slovakia: Five LessonsMax Steuer 2019-02-05T08:59:19In 2019, Slovakia selects nine out of thirteen constitutional court (SCC) judges. Theselection process takes place a few weeks before the election of the president, whois the key figure in appointing the justices.As reported earlier, the constitutional reform of the appointment model largely failedin the fall of 2018. However, the nuts and bolts of the process ultimately bore fruit viathe approval of a new Act on the Constitutional Court (314/2018 Coll.) that amendeda few provisions of the Act on the Rules of Procedure of the National Council(350/1996 Coll.) as well. One novelty of this legislative piece is the requirement ofpublicly broadcast hearings of the candidates for the nominees for the vacant seatsbefore the Committee on Constitutional Affairs (CCA) of the Slovak National Council(§ 116a secs. 3, 6). Additionally, all MPs (not only the members of the CCA) as wellas nominees of the Slovak President have the right to ask questions.These provisions set the stage for hearings of forty candidates nominated by eligibleinstitutions that covered three full days and more than thirty hours of footage. Thetransparency and publicity of the hearings was clearly improved by this move; yet,the atmosphere of the hearings and the overall context of the 2019 appointmentprocess yield at least five, and not that optimistic, lessons.One: Partisan background conducive to the level ofattention paid to the candidatesThe pool of candidates is diverse – it includes a former judge of the EuropeanCourt of Human Rights (ECtHR), a judge of the SCC in the 1990s (who can avoidthe prohibition of re-election introduced by the constitutional amendment in 2001),an active coalition MP (who sat on the CCA until his voluntary recusal at thebeginning of the hearings), a former MP and political party leader, the President ofthe Supreme Court, several judges of general courts, associate professors of law,counsellors or external advisors of the SCC, attorneys, an executor or a director of astate agency.Yet, by far the most attention was granted to the longest-serving Prime Ministerin the country’s history, Robert Fico, who lost his seat after a myriad of scandalslast year, and who now attempts to become the President of the SCC. The othercandidates with current or former partisan background received disproportionatemedia attention as well even though a major daily newspaper prepared short profilesof each candidate. Other candidates with partisan ties outperformed those without- 1 -them in media attention as well – just another reason for avoiding the concentrationof selection for many vacant seats (a proposal that did not even make it to theunsuccessful constitutional amendment last fall).Two: Unclear or formalistic procedures underminingthe legitimacy of the outcomesThe emphasis on observing the formal procedures is essential in a democracy.However, a fundamental constitutional principle requires adopting an equal and non-discriminative approach to the applicants for the same position. The CCA had anuneasy task where (1) the Constitution stipulates a requirement of fifteen years oflegal practice (Art. 134 sec. 3), (2) there exists a resolution (pp. 36-37) of the CCAfrom 2006 that defines as legal practice only such forms of employments or servicethat require exclusively a graduate degree in law, (3) Dr. Fico, the most partisancandidate, did not demonstrate the qualification defined this way, and (4) one ofthe candidates did not appear before the CCA sending a confirmation about herhospitalization. An additional complication emerged with one of the CCA membershaving recused himself due to his own candidature, bringing the number of votingCCA members to an even one (12).This setting was destined to produce contentious situations as the oppositionmembers of the CCA demanded the exclusion of Robert Fico who had notdemonstrated exactly fifteen or more years of legal practice, interpreted through thelens of the 2006 CCA resolution. Given that the number of coalition and oppositionmembers was the same, the CCA did not approve any resolution with respect toDr. Fico’s eligibility albeit it was required to do so, spurring a new debate amongpolicymakers and constitutional lawyers alike, while delaying the vote on thecandidates in the plenum (while the term of the judges in office expires on 15February).Furthermore, the CCA approved by 12 votes to 0 the eligibility of all other 39candidates, including the one who did not appear at the hearings. By approvingthe absent candidate instead of at least requiring an additional hearing, the CCAsent a signal of the hearings not at all being important for its decision-making. TheCCA’s formalistic attitude in Dr. Fico’s case combined with one considerate to thecandidate’s personal circumstances in the case of the absentee (a regional courtjudge with several at least questionable decisions while in the position of a districtcourt president) is bound to challenge the legitimacy of the CCA’s decisions.Three: An inductive approach to questioning thattells little about candidates’ legal philosophiesSeveral media outlets used the phrase of ‘grilling’ the candidates during the CCAhearings. On the one hand, there is clearly an improvement from the earlier hearingswhich received very little attention. On the other hand, most of the questions couldeither have been expected by the candidates because they were linked to those of- 2 -their activities that made at least some headlines, or they appealed to those areasof their expertise that they possessed. For instance, the former judge at the ECtHRreceived almost all questions in relation to the jurisprudence and his work at theECtHR; some other candidates received hardly any questions pertaining to theirunderstanding of the case law of the Strasbourg court.Hence, content-wise many questions posed at the hearings were easier thana regular exam in an advanced constitutional law course. Moreover, with a fewexceptions they did little to find out about the candidates’ standing on contentiousconstitutional questions such as the mission of the SCC, the development andoverruling of constitutional doctrines or the conflicts between fundamental rights. Thejustification of one of the CCA members for this technique makes sense: with thelittle known candidates the hearings serve the purpose of learning basic facts abouttheir work, especially if their CVs and motivation letters did not provide many details.At the same time, broader questions asking the candidates, for instance, to identifylegal thinkers who had the greatest influence on their thinking about law and justice,or to discuss their understanding of the relationship between various types of legalinterpretation, could have told us much more about both the candidates’ qualificationand personality without extending the length of the hearings. A holistic approachalso suffered a blow because some of the questions going in this direction that arespected NGO included on a recommended list of questions were largely avoidedby the MPs as well as the Slovak President’s representatives.Four: Hearing of the interlocutors, not just thecandidatesAs the 2019 Slovak example shows, live broadcasts of hearings like this one areinformative with respect to the qualification and expertise not just of those whoanswer but also of those who ask. Opposition MPs dominated the hearings eventhough many candidates could have either been perceived as closer to oppositionparties or as neutral to partisan divides. Normally, it would be expected that coalitionMPs will be active in asking questions from these candidates, if for no other reasonthan to demonstrate their own qualification as CCA members.This did not happen: except for the (coalition) chairman of the committee who askeda few candidates about the material core of the Slovak Constitution, a questiondiscussed in domestic constitutional discourse, coalition MPs remained almostentirely silent. As the CCA usually comprises the legal experts from among the MPs,the hearings painted a public bleak picture about the coalition parties’ capacities toattract such experts (or at least individuals interested in constitutional law questions)among their ranks. By not participating in the questioning, they were ‘outsmarted’even by the representative of the far-right (opposition) party who just kept repeatingquestions about same-sex marriages, Slovak sovereignty and refugee quotasto almost all candidates but still appeared as one of the more active committeemembers.- 3 -Five: Democracy not in the spotlightIndeed, these questions on ‘moral, ethical’ issues, as they were frequently labelledby the MPs who asked them, were among those most telling about the individualprofiles of the candidates. The candidates can be broadly divided into three groups:those who used arguments from constitutional law to justify the evolutionaryconception of human rights, those who avoided a direct answer on these questionsdue to fear of being considered biased as a constitutional judge if such a questionarose, and those who used a mixture of constitutional and ideological reasons todefend various restrictions on family rights and the right to privacy.No candidate could be considered sufficiently qualified just based on the answeron these questions; nevertheless, some of the replies provided an insight of whodoes not have an ability and/or willingness to engage with this subject from theperspective of constitutional law. This is notably the case of Dr. Fico who, instead ofengaging in any substantive reasoning, labelled the adoptions by same-sex couples‘a small perversion’.Ultimately, the shortest questions are sometimes the hardest, but their investigativepower should not be underestimated. Seemingly simple questions asking for thecandidates’ understanding of law as such, of justice, the rule of law, separation ofpowers and, most comprehensively, democracy, could have generated a betterunderstanding of their legal and personal background than some inquiries on specificcases they had dealt with in the course of their career.The hearings are not uselessThis evaluation might seem excessively critical given that this was a ‘first try’of a relatively infrequent practice in a comparative perspective (one that is notused even by the ‘Central European model’ for constitutional courts, the GermanBundesverfassungsgericht). As far as the hearings allow to portray the candidatesfor constitutional judges both as experts and humans with an own understandingof justice, they are beneficial for bringing the SCC closer to the public at large andcan be recommended as best practice in appointment procedures of constitutionaljudges. That said, the suggestions voiced in the Slovak discourse so far centered onthe need to consider time limits for the candidates’ introductions and as such merelyscratched the surface of possibilities for thorough and critical hearings that uncoverthe pillars of the candidates’ legal thinking.- 4 -

The First Live-Broadcast Hearings of Candidates for Constitutional Judges in Slovakia: Five Lessons

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The First Live-Broadcast Hearings of Candidates for Constitutional Judges in Slovakia: Five Lessons

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