The Powers of a Government without Confidence: The MiG-29 Case from Slovakia

Marek Domin

Comenius University

The essence of the parliamentary form of government lies in the need of the executive to obtain the confidence of the parliament to exercise its powers. As a rule, the executive is not directly elected, but derives its legitimacy from the parliament elected by the people. The stated basic principles are also valid in Slovakia, where the executive is led by the Government of the Slovak Republic, which is formed after the elections to the National Council of the Slovak Republic, the parliament. The President of the Republic appoints the Prime Minister and, upon their proposal, other members of the Government, respecting the results of the elections to the National Council. However, the process of creation of the executive ends only when the appointed Government submits its program to the National Council and asks it for a vote of confidence.

Vote of No Confidence and the Events that Followed

In recent years, Slovaks have witnessed a political crisis, which was caused mainly by the political style of former Prime Minister Igor Matovič, the leader of the strongest political party after the 2020 elections, the OĽaNO party. This crisis culminated in December 2022, when the National Council passed a vote of no confidence in the coalition Government, at that time presided over by Prime Minister Eduard Heger (until then a loyal vice-president of Matovičʼs party). The other political party, the SaS party, which had previously left the Government coalition and joined the opposition, helped significantly to pass a successful vote of no confidence.

The Constitution of the Slovak Republic prescribes that the consequence of a successful vote of no confidence is the dismissal of the Government. However, in order to preserve  the functionality of the executive, the Constitution simultaneously commands the President of the Republic to entrust the dismissed Government with the performance of its functions until the appointment of a new government. Thus, the President of the Republic dismissed the Government and also temporarily appointed it to continue performing its function at least up until 30 September 2023, when early parliamentary elections will be held.

The Constitution does not specify the length of time for which the dismissed and temporarily-appointed Government functions. Therefore, in principle it is up to the President of the Republic to decide whether she will let the Government rule until next elections or appoint a new government earlier. Yet, the problem is that any new government would also need the confidence of the parliament, and that is almost unimaginable with the current distribution of political forces in the National Council. 

The appointment of a so-called bureaucratic government, i.e. a government without ties to parliamentary political parties, had been mentioned by politicians and political commentators as one of other possibilities. Although the appointment of a bureaucratic government initially appeared to be a problem, especially given the predictable opposition of the parliament, the decision to appoint such a government was nonetheless eventually made. After a scandal involving the Minister of Agriculture broke out, Prime Minister Eduard Heger finally asked the President of the Republic to be relieved of his duties. On 7 May 2023, the President of the Republic announced that she would shortly appoint a bureaucratic government headed by the current vice-governor of central bank of Slovakia, Ľudovít Ódor. 

Powers of a Government without Confidence

A dismissed and temporarily appointed Government, as a result of a vote of no confidence, has a specific status and powers. The Constitution, after amendment in 2011, divides the powers of the Government without confidence into three groups (article 115 read with article 119).

The first group of powers that a Government without confidence can exercise include, for example, passing resolutions on draft laws (which are subsequently submitted for approval by the National Council), adopting its own governmental regulations executing laws of the parliament or negotiating international treaties.

The second group of powers are those that a Government without confidence cannot exercise. These include fundamental issues of domestic economy and social policy and foreign policy. Unfortunately, the Constitution does not specify what a fundamental issue of domestic or foreign policy is. The problem of defining a fundamental issue of domestic or foreign policy has not arisen before, as there has not been a Government without confidence since the 2011 constitutional amendment. A Government without confidence also cannot decide to ask the National Council for a vote of confidence. Thus, confidence once lost cannot be restored.

The third group of powers are those that a Government without confidence can exercise only with the prior approval of the President of the Republic. These include the appointment and dismissal of state officials and all powers that are entrusted to the Government not directly by the Constitution but by an ordinary law. This category includes, for example, the approval of foreign work trips for individual ministers. Because of this third group of powers, some Slovak constitutional law scholars claim that when a Government without confidence exists, the form of government in Slovakia changes from a parliamentary form to a semi-presidential form. It should not be forgotten that the President of the Republic is elected directly by Slovak citizens, which is one of the typical features of a semi-presidential system.

The MiG-29 Case

The problem of the unclear delineation of powers that a Government without confidence can or cannot exercise, manifested itself in the so-called MiG-29 case. The Government of the Slovak Republic, which has long supported Ukraine’s defence against the Russian attack, responded positively to the request from the Ukrainian President to provide Ukraine with MiG-29 fighter aircrafts. These are aircrafts that Slovakia removed from its arsenal in autumn 2022, on the basis that it cannot ensure their service without the cooperation of technicians from Russia. The F-16 aircrafts will replace them, but they will arrive in Slovakia no sooner than in 2024.

In addition to its political and military significance, the MiG-29 case also has a substantial constitutional dimension. Slovak constitutional law scholars have expressed doubts as to whether a Government without confidence can decide on the provision of military aircrafts to Ukraine. Of course, the Constitution does not explicitly say anything about such provision, but it is questionable whether it is or is not a fundamental issue of foreign policy. For determining so, the overall context must be taken into consideration, especially the fact that we are speaking of providing military aircrafts to a neighboring country that is at war.

The former Prime Minister and the Minister of Defence initially stated that Slovakia would give MiG-29 aircrafts to Ukraine only after consulting constitutional law scholars. Despite the fact that several scholars publicly communicated their fundamental doubts about the constitutionality of the possible provision of aircrafts, the former Government ultimately did so. It referred to its own legal analysis, which was never published, and the authors of that analysis are unknown. Thus, the public got the impression that governmental legal analysis does not exist.

The MiG-29 aircrafts were finally provided to Ukraine in March and April 2023 on the basis of an international treaty between the Slovak Republic and Ukraine. The former Government argued that the Constitution allows it to negotiate international treaties even at a time when it does not have the confidence of the National Council. Although this is true according to the words of the Constitution, concerns that the Government is circumventing a constitutional ban on decisions on important issues of foreign policy in this way persisted. In other words, the former Government simply ignored the voices of constitutional law scholars.

Solutions for the Future

Regardless of any political approach to the conflict in Ukraine, in a State founded on principles of the rule of law it is essential that the Government always acts only on the basis of the Constitution and within its limits. Doubts about the constitutionality of the former Government's actions arise not only because of the former Government’s conduct, but also because of imperfect wording of the constitutional text, as amended in 2011. The 2011 constitutional amendment, which divided the powers of a Government without confidence into three categories, was adopted without professional consultation literally in a few minutes as a reaction to the loss of confidence of the then Government presided by Iveta Radičová.

Since a vote of no confidence is commonly used in the environment of the parliamentary form of government, it will probably be necessary to change the text of the Slovak Constitution in order to make clear what powers a Government without no confidence can exercise. A deeper change in the constitutional system is offered as another option. One potential option for reform is to adopt the German model of a constructive vote of no confidence which permits a vote of no confidence only if an alternative government with confidence is nominated at the same time.   If a constructive vote of no confidence applies, it is not enough to find a majority of members of the parliament against the existing Government, but at the same time it is necessary to find a majority that will support the new Government (the new Prime Minister) on the basis of the existing distribution of political forces in the parliament. If this system applied, it is likely that the Government formed after the 2020 elections in Slovakia would not have lost confidence and would rule properly until the regular elections planned for 2024. The majority that provided a vote of no confidence in the Eduard Heger Government would not have agreed on a name of the new Prime Minister at the same time. However, it is up for further discussion whether such a path is the right one for the Slovak Republic.

Marek Domin is Associate Professor and Deputy Head of the Department of Constitutional Law at the Faculty of Law at Comenius University

Suggested Citation: Marek Domin, ‘The Powers of a Government without Confidence: The MiG-29 Case from Slovakia’ IACL-AIDC Blog (16 May 2023) https://blog-iacl-aidc.org/2023-posts/2023/5/16/the-powers-of-a-government-without-confidence-the-mig-29-case-from-slovakia.