Can People Ask for Early Elections? Slovak Constitutional Court Says No

Marek Domin

Comenius University

The top constitutional law topic in Slovakia today, and not only among experts, is the decision of the Constitutional Court of the Slovak Republic (CC) of 7 July 2021 (decision PL. ÚS 7/2021). In it, the CC did not allow a referendum to be conducted on whether early elections to the National Council of the Slovak Republic (National Council), in the Slovak Parliament, could be held. Because of that decision, an unprecedented wave of criticism has hit the CC, especially from politicians. Politicians have argued that the CC decision does not respect the principle of sovereignty of the people and the axiom of democracy. Paradoxically, the failure to hold the referendum on early parliamentary elections has even been criticized by those politicians for whom early elections would certainly not be a desired result. In the following blog post, I will explain the importance of the decision, including its possible consequences.

Facts and what the Constitution Says about Referendum

Letʼs begin with a few facts. In May 2021, the President of the Slovak Republic (the President) received a petition signed by more than 600,000 citizens asking for a referendum in which citizens eligible to vote would be asked whether they agree to shorten the current National Council term. If the answer was in the affirmative (and the results of the referendum valid), parliamentary elections would take place in autumn of 2021, rather than February 2024 as scheduled. After verifying that the requisite number of signatures was met 350,000 or more (the Constitution requires that at least 350,000 citizens must apply for a referendum and the CC emphasized that this requisite is controlled by the President), the President exercised her power vested by the Constitution of the Slovak Republic (Constitution) to refer the matter to the CC for decision. The CC was to determine whether the subject of the referendum was in accordance with the Constitution. Already that decision of the President was the target of criticism, especially by the parliamentary opposition. However, according to Art. 101 par. 1 of the Constitution, the President is obligated to ensure the proper functioning of the constitutional system, and it was therefore appropriate to refer the matter to the CC, although it is notable that the power to make that referral is a discretion, not a duty.

The Constitution regulates referenda in detail. It assumes that the President will call a referendum on the basis of a resolution of the National Council or at the request of citizens. However, the subject of a referendum must be an important issue of public interest and, at the same time, it must not be about fundamental rights and freedoms, the state budget or taxes. The results of a referendum are valid if an absolute majority of all eligible citizens took part in the vote and if an absolute majority of them answered yes or no to the question. Yet, the problem that has troubled Slovak constitutionalists to this day (or at least until the decision PL. ÚS 7/2021) is what to do with the valid results of a referendum. In particular, it is unclear to what extent the results of a referendum bind the National Council and whether a vote or further parliamentary activity should be required to transform the content of referendum results into the law.

The Constitution does not explicitly deal with the question of whether a referendum may concern early parliamentary elections. Practice seems to answer this question in the affirmative, as two such referendums have already taken place, namely in 2000 and 2004. Yet, both were invalid due to the low turnout of eligible voters. However, a substantial part of the Slovak constitutional theory, perhaps even the majority, has long tended to the conclusion that the Constitution does not allow a referendum on early elections. Arguments against this type of referendum were based, among other things, on the idea that such referenda would violate the right of elected MPs to exercise their mandate for four years.

Decision of the Constitutional Court

The CC decision of July 2021 was not the first decision of the Slovak Constitutional Court to assess whether a referendum was constitutionally valid. It first happened in 2014, when the President referred to the CC four questions on the so-called Referendum on the Family. At that time, the CC came to the conclusion (decision PL. ÚS 24/2014) that fundamental rights and freedoms may also be the subject of a referendum (despite the explicit prohibition of Article 93.3 of the Constitution), so long its results do not lead to a lowering of the standard of protection of the fundamental right or freedom in question.

But let's go back to the current decision. The CC, by a majority vote (10 to 3, as three judges presented their dissenting opinions), ruled that the subject of the referendum on early elections to the National Council is in conflict with several provisions of the Constitution. The CC did not allow a referendum on early elections, but it did clarify that results of referenda are legally binding and have the force of a constitutional act. Thus, the CC "cleaned up" its previous case-law on the legal effects of referenda, which had previously been inconsistent to some extent.

The CC saw the referendum on early elections as in conflict with the principle of the rule of law (Article 1 of the Constitution). It emphasized that the direct exercise of power by citizens, which takes place mainly through referenda , is also subject to restrictions arising from the Constitution. The fundamental problem, according to the majority of judges, was that the subject of the referendum in question was in conflict with the requirement for the generality of legal norms, which forms part of the rule of law principle. The referendum on early elections would not adopt a general legal norm, which the CC expects from any referendum, but would only break the rule on the four-year term of the National Council contained in the Constitution. The CC recognized that the election period could be shortened, but only in the manner envisaged by the Constitution (dissolution of the National Council by the President). Therefore, the CC concluded that admitting the referendum on early elections would completely fulfill the principle of sovereignty of the people, but at the same time would completely deny the principle of generality of legal norms, which is an important part of the rule of law.

The CC, unlike the author of this paper, did not consider that admitting a referendum on early elections (without the explicit mention in the Constitution) would interfere with the right to vote as one of the fundamental rights and freedoms. However, in my opinion, allowing a referendum on early elections at any time, simply because of political dissatisfaction of the opposition or a part of the society, would pave the way for a gradual erosion of the importance of the right to vote as such.  If elections were to take place at any time, why would voters attach great importance to the exercise of their right to vote? In the words of the CC in its first 2014 decision on referendum validity, the consequence could be a lowering of the standard of protection of the right to vote.

Options for the Future

At the end of the decision PL. ÚS 7/2021, the CC implied that the only method by which Slovak citizens could request early parliamentary election through a referendum is if  the text of the Constitution was amended to include express mention of that possibility.  Whether such a constitutional arrangement would be appropriate is a topic for another discussion. From the first reactions of political leaders, it seems that the will for such a change in the Constitution might exist. Thought, it is questionable to what extent these reactions are sincere. Observers of Slovak political scene would certainly doubt it.

Another obstacle to the possibility of amending the Constitution, albeit only a short-term one, is the fact that the addition of an express reference to the referendum on early elections was recently proposed by one of the opposition MPs without success. The rules of procedure of the National Council do not allow the same matter to be discussed before six months have elapsed since the proposal was defeated. This means that the amendment of the Constitution in the matter of a possible referendum on early elections could be discussed by the parliament again in half a year. If that six-month rule was to be changed only for the purpose of overcoming the CC decision, this too could give rise to a possible conflict with the rule of law principle. However, such a proposal has not been tabled and is unlikely.

Overall, the CC decision in PL. ÚS 7/2021 has provided clarity for constitutional lawyers, politicians and citizens alike, that the results of referenda are legally binding. However, in refusing to permit this referendum, it has also opened the door to a potential future constitutional amendment that could undermine the importance of the right to vote in the Slovak Republic.

Marek Domin is Associate Professor of Constitutional Law at the Faculty of Law of the Comenius University in Bratislava (Slovakia).

Suggested Citation: Marek Domin, ‘Can People Ask For Early Elections? Slovak Constitutional Court Says No’ IACL-AIDC Blog (2 September 2021) https://blog-iacl-aidc.org/2021-posts/2021/9/2/can-people-ask-for-early-elections-slovak-constitutional-court-says-no.