Slovak Constitutionalism and the COVID-19 Pandemic: The Implications of State Panic

Max Steuer

Comenius University, Slovakia

At first glance it might look like there is nothing special about the way Slovakia is handling the extraordinary situation of the past few weeks: it has declared a (limited) state of emergency, closed its borders and developed a series of other responses the effectiveness of which remains to be seen. There are, however, three reasons why Slovakia is no ‘ordinary case in extraordinary times’ and the developments underpinning the three reasons have two concerning implications.

Reason 1: Cabinet Change

Firstly, a cabinet change took place in Slovakia on 21 March. At the beginning of the outbreak the cabinet was led by Prime Minister (PM) Peter Pellegrini, from the party Smer-SD, who had been embroiled in corruption scandals including those linked to the murder of the journalist Ján Kuciak and his fiancée. Pellegrini’s cabinet declared a state of emergency for the healthcare sector that can last up to a maximum of 90 days. However, all cabinet decisions after 21 March have been taken by the cabinet of the new PM, Igor Matovič.

Matovič is the leader of the movement OĽaNO (Ordinary Persons and Independent Personalities), which won a decisive victory (taking over 25 % of the general vote) in elections held on 29 February. The focus of the OĽaNO election campaign was on anti-corruption, with limited attention paid to other matters, such as education and foreign policy. Matovič is likely to gain a constitutional majority together with three smaller political parties with very diverse orientations, that, contrary to some media reports, does not warrant its classification as a traditional ‘centre-right’ cabinet. It is, however, undoubtedly entering a period of extraordinary pressure.

Reason 2: Electoral Complaint

Secondly, the February election results have been challenged by the pro-European party coalition of PS-Spolu (Progressive Slovakia/Together). Unlike OĽaNO, which included representatives of other political parties on its party list, PS-Spolu officially ran as a coalition of two parties. This is significant because there are different thresholds for winning parliamentary seats, depending on whether parties run as ‘individual’ parties or as an electoral coalition. An electoral coalition requires 7 % of the vote to receive parliamentary representation, whereas an individual party only needs 5 % of the vote. PS-Spolu paid a heavy price for its decision to officially run as a coalition. It missed the threshold by the narrowest margin in Slovak modern history (receiving 6.96 % of the vote – a difference of 926 votes).

In addition, some voters have reported inaccuracies in their electoral districts (for example, official records for several small districts record zero preferential votes for PS-Spolu candidates, yet some voters claim to have marked these candidates as their preferred candidates). PS-Spolu has filed an electoral complaint in which it has raised a number of issues, including these alleged inaccuracies, and in which it has challenged the constitutional validity of practices that attempt to circumvent the 7 % threshold.

Reason 3: Disproportionate Emergency Measures

Finally, Slovak citizens appear to have accepted the restrictions on their personal lives without much hesitation. At present, there seem to be few blatantly disproportionate restrictions for those staying in Slovakia. One exception might be the so-called ‘lex corona’, legislation that grants the state the competence to use location data of individuals supplied by telecommunication companies. This law is likely to be challenged in the Slovak Constitutional Court (SCC).

However, for Slovak citizens arriving home from other countries, draconian measures have been introduced. Citizens repatriated by the Ministry of Foreign Affairs are required to agree to an indefinite suspension of their rights while in mandatory quarantine in state-owned facilities (ostensibly, for ‘as long as needed’ for testing for the virus to be concluded). Conditions in some of these facilities are far from humane, and initial reports about the treatment of citizens by state agents is even more disturbing. For instance, some citizens claim that for the first seven hours after arriving at these facilities they were denied access to a restroom.

The government’s justification for this comparatively (in a democratic context) unique measure is feeble at best. The government has argued that these measures are justified because there is a ‘greater danger’ of infection being spread by those travelling from abroad, and the repatriation of these citizens is being undertaken at the cost of the state. The former justification is (especially today, with the virus spreading domestically in Slovakia) empirically unfounded. Even if one takes it for granted, however, it does not justify the usage of the poorly equipped state facilities where, due to poor isolation measures, there is high likelihood for the virus to spread from the few who are infected. The latter justification of the costs being incurred by the state obscures the fact that the need for repatriation has arisen largely because the country closed airports and stopped cross-border transport on a scale few other democracies did. In addition, the requirement to undergo testing and get placed under quarantine in state-owned facilities, has subsequently been extended even to citizens returning using private means of transportation.

This policy is a manifestation of ‘state panic’ and its constitutionality is questionable from a proportionality perspective, even under the conditions of a declared emergency. Furthermore, it also has problematic societal implications: some members of the public have jumped on the bandwagon and started to claim Slovak citizens returning from abroad are choosing to endanger other residents (the sentiment being ‘they should have stayed abroad instead of coming here to infect us’). Other citizens have challenged this narrative, on social media and in newspaper op-eds. Still, the way these Slovak citizens have been constructed as the new ‘Other’ that threatens the health of the political community provides limited empirical support to Italian philosopher Giorgio Agamben’s assertion that the current pandemic can trigger a ‘civil war’ between communities who would not fight each other otherwise.

All in all, citizens’ limited concern about human rights protection during the state of emergency is troubling. According to a prominent Slovak sociologist, this ‘obedience’ stems from the historical need for Slovaks to be subordinate to the state for the sake of survival and the avoidance of greater catastrophe, as well as from paternalistic and conformist traditions. While he is careful not to generalize, he does suggest that this lack of objection gives the cabinet a sense that it has public support for extending existing, and introducing further, emergency measures. These developments could have two concerning implications: a rise in populist constitutionalism in Slovakia, and new challenges for the SCC.

Implication 1: A New Impetus for Populism?

Even before the pandemic and the elections, the manifesto of OĽaNO had expressed support for curtailing the SCC’s powers – seeking to explicitly ban review of constitutional amendments. This policy position was adopted in response to a prior decision of the SCC (PL. ÚS 21/2014), in which the Court reviewed the constitutionality of a 2019 constitutional amendment. Furthermore, Matovič is a supporter of introducing more direct democracy, for instance through the lowering of the minimum number of votes needed to make quorum for and, therefore, to validate referenda. He has also looked favourably at the idea of national consultations, which Hungarian PM Viktor Orbán used to cement his electoral support and further undermine the political opposition. 

Matovič’s cabinet will likely be backed by a constitutional majority that will give it the means to carry out such constitutional changes. In addition, the extreme right party of Marian Kotleba is part of the official opposition, and holds enough seats in the parliament that, if it backed a government proposal, that proposal would be passed. Consequently, even if a proposal introduced by Matovič would not win the support of all the coalition parties, the missing votes might be supplied by the extreme right. This scenario is unlikely, but there are no constitutional checks preventing such a development.

In short, the combination of Matovič’s populist rhetoric on constitutional change, the fact that OĽaNO will command a parliamentary majority, the general sense of crisis and Slovak citizens’ complacent attitude toward emergency measures, places Slovak constitutionalism on particularly shaky ground.

Implication 2: The Constitutional Court Adapting to Emergency?

Even without any court-curbing initiative from Matovič, the SCC faces two major challenges (while also needing to deal with practical issues, relating to operating during a lockdown, that other courts have to cope with as well ). The first challenge relates to the constitutionality of the emergency measures. The Court’s powers in this respect arise from the Constitution (Art 129 sec 6), with the corresponding procedure set out in the Act on the Constitutional Court (Part 5, Heading 16).

The Court needs to decide a petition of this nature within ten days of submission. However, the effect of a finding of unconstitutionality of the declaration of a state of emergency are not spelled out. Arguably, an interpretation that pays due respect to the Court’s authority would deem such a declaration as ineffective with immediate effect, while potential human rights violations, perpetrated during the unconstitutional state of emergency, could be dealt with through individual complaints. Still, the lack of explicit authorization of the Court to discontinue the state of emergency could be abused by the cabinet, via relying on arguments about the ‘national interest’ to justify disregarding the Court decision.

Similar issues, concerning the constitutionality of emergency measures, may get on the agenda of other apex courts in the region as well. However, there is a second challenge that few (if any) of these other courts will need to address: deciding on the constitutionality of the recent general elections, based on the electoral complaint of PS-Spolu.

There is no explicit ground for the Court to extend the prescribed period of 90 days for the issuing of a decision on a challenge of this nature. It is, however, also not a timeframe that can be enforced. It seems likely there will be some delay as, during the pandemic, procedures, such as the inspection of records of votes, become exceedingly complicated. However, excessive delays are not feasible either, as the very legitimacy of the current parliamentary majority and, by implication cabinet, is in question.

It is unlikely that the Court would order a recount or, in the extreme, a new election, but should that happen during the state of emergency or while the pandemic is ongoing, it is difficult to see how the Court’s order could be implemented. At the same time, if the Court relies on the extraordinary situation as the sole ground for rejecting the complaint, its decision is likely to be challenged by those who will regard it as a matter of placing ‘politics ahead of principle’. 

Looking Ahead

The danger in a (relatively) standard post-communist constitutional democracy that recently underwent democratic elections deconsolidating due to the pandemic should not be underestimated. Today it is already clear that some countries are moving towards outright authoritarian measures, this includes Slovakia’s neighbour, Hungary, which has implemented indefinitely lasting emergency powers.

Slovakia adopted comparatively more restrictive measures than most other democratic countries. It will therefore be important to see whether the new cabinet will pay attention to the growing costs of the pandemic for individual rights, and ensure counter-measures remain temporary and explained to the public. At this point, except for some members of the cabinet, such as the Minister of Justice who possesses expertise in constitutional and human rights law, there are limited guarantees provided by the expertise of cabinet members. The new PM would do well to repeatedly reassure the public that proportionality in the implementation and adoption of emergency measures remains a key concern, and that he will stop short of any de facto indefinite restrictions, or restrictions that would prevent or jeopardize effective constitutional review against the measures.

Max Steuer is a Research Fellow at the Comenius University in Bratislava, Slovakia and an LL.M. candidate at the University of Cambridge.

Suggested Citation: Max Steuer, ‘Slovak Constitutionalism and the COVID-19 Pandemic: The Implications of State Panic’ IACL-AIDC Blog (9 April 2020) https://blog-iacl-aidc.org/2020-posts/2020/4/9/slovak-constitutionalism-and-the-covid-19-pandemic-the-implications-of-state-panic