Removal of the Slovak Government by a Referendum: Act II of the Drama

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Marek Domin

Comenius University

In September 2021, I wrote about an important decision of the Constitutional Court of the Slovak Republic which held that a referendum cannot shorten the electoral period of the National Council of the Slovak Republic, the Slovak Parliament. In September 2022, the Constitutional Court was again asked to assess the constitutionality of a referendum question. Although the wording of the question, compared to that of 2021, was different, the goal of the referendum remained the same. The aim of initiators of the referendum was to remove the Government of the Slovak Republic. As the Government is always formed on the basis of results of parliamentary elections, a shortening of the National Council term would lead to early parliamentary elections and then to the removal of the Government. I will briefly describe the 2022 Constitutional Court decision, including its consequences and possible next steps of the entire Slovak drama.

Plot Summary of Act I of the Drama

Over the last 20 years, Slovakia has experienced several attempts to hold a referendum on early parliamentary elections. Two of them resulted in an actual referendum, but both were invalidated due to low voter turnout. In order to be valid, a majority of eligible voters must participate in the vote. In 2021, a referendum question related to early parliamentary elections was submitted to the Constitutional Court. The question was sent to the Constitutional Court by the President of the Slovak Republic using the powers granted under the Constitution of the Slovak Republic.

In its decision, PL. ÚS 7/2021 of 7 July 2021, the Constitutional Court held that a nationwide referendum is an exercise of legislative power and therefore its result cannot lead to one-time breaking of a general rule. Since the question aimed to shorten the electoral period of a specific National Council (the eighth National Council elected in 2020) and not the creation of a general rule, the Constitutional Court concluded that the referendum question was unconstitutional. In particular, the referendum question was contrary to the principle of generality of law, which is part of the rule of law. The President therefore did not call the referendum. If she had, she would have violated the Constitution.

However, in the PL. ÚS 7/2021 decision the Constitutional Court indicated how shortening an electoral period of the National Council through a referendum could be possible. It emphasized that a necessary prerequisite for such a possibility is a change in the text of the Constitution. Such a change can occur through legislative activity of the Parliament and through a valid referendum with properly formulated question.

The Second Petition Requesting the President to Call a Referendum

The PL. ÚS 7/2021 decision has received not only appreciation, but also considerable criticism, including by the court itself (three of the thirteen judges dissented). The opposition political party, which led the first referendum initiative (even though de jure it was a civic referendum initiative), soon had collected the number of signatures required by the Constitution for a petition and turned with it to the President again. This time, two questions would to be subject of a referendum. Yet, these two questions were qualitatively different.

The first question, respecting the PL. ÚS 7/2021 decision, aimed at amending the Constitution with a general rule according to which it would be possible to shorten an electoral period of the National Council in the future and thereby achieve early parliamentary elections, both by a referendum and by a resolution of the parliament itself. The second question was completely ignored the the PL. ÚS 7/2021 decision. This second question was an order of the citizens to ask the Government to resign, without delay. The approach of this second question was different from the unconstitutional 2021 referendum, but the pursued goal was the same. That goal was to achieve the removal of the Government earlier than as a result of regular parliamentary elections, expected in 2024.

The President once again asked the Constitutional Court for an advice. She sent only the second question to the Constitutional Court, because the first question, in her opinion, met the conditions formulated by the PL. ÚS 7/2021 decision.

The 2022 Constitutional Court Decision

The Constitutional Court decided on the President's proposal on 26 October 2022. In that 2022 decision (PL. ÚS 11/2022), the Constitutional Court followed up and referred to the PL ÚS 7/2021 decision. As expected by experts, the Constitutional Court ruled that the second referendum question is in conflict with the Constitution.

The Constitutional Court has again criticized the referendum question, finding that it contradicts the principle of generality of law (thus also contradicting principles of the rule of law), because the question was not aimed at creating a general rule, but instead breaking existing constitutional rules governing the end of the Government's term of office. The Constitutional Court added that the proposed question also contradicts the principle of separation of powers, which, like principles of the rule of law, forms a part of the material core of the Slovak Constitution. Although the principle of separation of powers is not expressed explicitly in the Constitution, its indisputable manifestation can be seen in those provisions of the Constitution that regulate relations between individual public bodies, which in this case are the Government and the National Council. The Constitutional Court held that if the referendum was valid and the proposal was adopted, it would interfere with constitutional regulation of relations between the Government and the National Council through a one-time breach of valid constitutional rules.

The President, respecting the PL. ÚS 11/2022 decision, finally called a referendum with only one question, namely the first question aimed at changing general constitutional rules. The second question will not be put towards the electorate. The referendum will be held on 21 January 2023.

Possible Act III of the Drama?

On the penultimate Saturday of January 2023, Slovak voters will be asked to vote in a ninth nationwide referendum. The referendum question will not result in a shortening of the electoral period of the National Council. If the results of the referendum are valid and if majority of its participants answer  'yesʼ to the question asked, the result will only be a change of constitutional rules. Thus, the Slovak Constitution will allow – this time without any doubt – the removal of a Government (by shortening an electoral term) through the use of a referendum.

Of Slovakia’s previous eight referenda, only one met the majority of eligible voters condition. This was the 2003 referendum, in which Slovaks decided that the Slovak Republic would join the European Union. If the Government parties are successful in discouraging voters from participating in the 2023 referendum, the results will not be valid.

If, on the other hand, the January referendum is valid, we can probably expect a petition action in a short period of time, the aim of which would be to call a referendum directly on shortening the electoral period. If members of the petition committee respect the new wording of the Constitution (amended by the January referendum), this time the process leading to a referendum should be straightforward, without the need for consultation with the Constitutional Court.

Should this occur, I stand by the opinion I expressed in my previous blog post. The possibility of shortening an electoral period of the Slovak Parliament through a referendum is dangerous as it could lead to undermining the importance of the right to vote. This would happen if a referendum on early elections would be repeated often, whenever losers of the elections could not accept their defeat.

But, following the current political crisis in Slovakia, I  agree that the National Council should have the possibility to decide on shortening its electoral period and thus holding early elections. Even the National Council will not get this option by means of the January referendum, as there are currently two bills of amendment to the Constitution in the National Council awaiting their next fate. Both count on an amendment to the Constitution, which would introduce a general rule on the possible shortening of an electoral period by the Parliament itself. However, a qualified majority of parliamentary votes (three-fifths) is required to amend the Slovak Constitution. It is questionable whether a sufficient majority will be found in the current difficult political situation. Neither the Government parties nor democratic opposition currently have any majority in the Parliament. On the contrary, they each accuse the other of cooperating with remaining MPs, who more or less openly flirt with fascism.

Stay tuned for Part III of the fate of Slovakia’s Government removal referendum.

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

Suggested Citation: Domin, Marek ‘Removal of the Slovak Government by a Referendum: Act II of the Drama’, IACL-AIDC Blog (1 December 2022) https://blog-iacl-aidc.org/new-blog-3/2022/12/1/removal-of-the-slovak-government-by-a-referendum-act-ii-of-the-drama.