The Third Legislator? The Relationship between the Slovak Constitutional Court and the Slovak Parliament

The Slovak Constitutional Court (SCC) is commonly known as one of the Central European ‘guardians of constitutionalism’ which successfully helped establish democratic standards through the division of power and guarantees of fundamental rights (Schwartz 2000, Malová 2002). Yet, there is a lack of research on its decision making since the accession of Slovakia to the European Union, and the differences between the ‘three constitutional courts’, divided based on its three presidents so far. This paper uses the analytical framework of the ‘negative’ and ‘positive’ legislator to answer whether and why the SCC acted as a legislator during the three court terms. For this purpose, it uses a new dataset (generated within the framework of the JUDICON project) and analyzes the most politically salient cases (ones where there is a clear difference between the political preferences of the petitioner and the coalition governing at the time of the SCC’s decision). Such an approach also helps identify how the SCC has positioned itself vis-à-vis changing legislative majorities between 1993-2015 and whether there has been a period in which it used its legislating capacities beyond the average standard. The analysis shows how the SCC in the 1990s – as confirmed by previous analyzes – stepped in to some of the most significant political conflicts and helped clarify the limits of powers in a democratic regime as well as those stemming from the enshrined guarantees of human rights. Contrary to some of these analyzes, however, the results highlight some areas in which this aim was not achieved by the ‘first’ SCC. While the ‘second’ SCC established itself as a player independent on the then right-wing governments, a notable shift can be observed with the ‘third’ SCC. With the absolute majority of judges assuming office in 2007, selected by a clear-cut majority of the first government of PM Robert Fico and a president declaring himself to be ‘part of [Fico’s] party’, the decisions gradually shifted towards ones favorable to the parliamentary majority and the head of state himself, with a few exceptions. When Fico’s party remained in opposition after 2010, most judges upheld several of his policy measures while striking down others by the center-right coalition. The emptying out of the bench due to the conflict on the president’s competences in the appointment procedures further exacerbated the resignation of the majority on the legislating function of the SCC, and gave rise to some arguably unconstitutional decision-making practices.