Faculty of Law of the Comenius University in Bratislava (Slovakia).
The first half of 2017 saw several developments in Slovak constitutional law. Among other things there were three direct constitutional amendments and two fundamental decisions of the Constitutional Court. However, the most important development would undoubtedly be the success of a several years of effort to find legal solution to the problems posed by the so-called Mečiar’s amnesties. In the following post I will briefly summarize this issue, which undoubtedly goes beyond Slovak borders
The ‘Mečiar’s Amnesties’ and the Constitutional Framework of the Power to Grant an Amnesty
The president of Slovakia had the power to remit and mitigate criminal sentences and grant individual pardons or amnesties. From a comparative point of view, it is similar to a prerogative associated with a status of the head of state. This presidential power has been a part of the original text of the Constitution but has recently been amended. The important difference is that before 1999 the Prime Minister could exercise these powers if the President had not been elected.
When Slovakia was without an elected President (March 3, 1998 – June 14, 1999), the Prime Minister Vladimír Mečiar used this power twice. The first time was only one day after the presidential term had passed and the second decision corrected the erroneously formulated text of the first one. These decisions (following which the term ‘Mečiar’s amnesties’ was coined) have amnestied two acts. The first one is related to a preparation and performance of the 1997 referendum. The second act related to kidnapping of Michal Kováč Jr., the son of then President of Slovakia.
Both events which the Mečiar’s amnesties are related to were serious, and prompted significant social backlash. In the first case, the President had declared a referendum with four questions. However, as a result of the Government` decision, the ballot papers were not printed with the fourth question concerning the issue of direct elections of the President. The second amnesty related to the fact that the responsibility for the kidnapping of Michal Kováč Jr. had been attributed to the intelligence agency allegedly acting on instructions of Prime Minister Mečiar. These events were a part of a wider power struggle between the Prime Minister Mečiar and the President Kováč, between 1994 and 1998.
The dispute between Mečiar and Kováč, two former political allies, started in 1994 by Presidential Address of the state of the Slovak Republic. The President Kováč, who was nominated to the office by Mečiar, in this Address criticized Mečiar`s confrontational governance style which was considered to be one of reasons of unfavorable economic situation. Mečiar, at that time, had led the Slovakian Government since 1992. The above-mentioned address lead to a snap election (general elections were scheduled for 1996) after which Mečiar again became the Prime Minister, with the support of two minor political parties. He continued his confrontational style of governance and in addition to amnesties in question, introduced new electoral laws just before parliamentary elections of 1998 which had as a goal the prevention of the victory of forming opposition coalition.
From Attempts to Abolish Amnesties to the Amendment to the Constitution
After Mečiar was replaced as Prime Minister several attempts to abolish his amnesties were made. The proponents have argued, that these amnesties arose out of an abuse of power where the powers were used to pardon representatives of Mečiar’s. These amnesties prevented punishment of offenders of amnestied acts.
The initial attempts to abolish the Mečiar’s amnesties were primarily in the form of constitutional drafts with the only content being the abolition of Prime Minister’s powers to grant amnesty. However, the legal problem was that the Constitution did not recognize such possibility. Another important problem was that an ex post abolition of amnesty would interfere with the legal certainty of persons whose acts were amnestied, and deny the nature of the amnesty itself. The attempts to abolish the Mečiar’s amnesties had divided the Slovak legal community into two camps. The first one asked for the abolition of amnesties arguing not only by their amorality but also by their contradiction with material concept of the Rule of Law. The second camp warned against the danger for the constitutional system which would be caused by the abolition of amnesty by parliament as a precedent.
Efforts to abolish the Mečiar’s amnesties culminated in the spring of 2017, perhaps thanks to a successful movie with a similar theme. However, in the end another solution was chosen. Instead of a separate constitutional act, a direct amendment to the Constitution was adopted. This amendment gave a new power to the Slovak parliament. Parliament was given the opportunity to abolish the presidential decision on amnesty or individual pardon providing that this decision is in contradiction with the principle of the democratic state and with the Rule of Law. A prerequisite for a valid parliamentary resolution is three-fifths majority of all Members of the Parliament. Slovak parliament has used its new power immediately after the approval of the amendment and adopted a resolution on abolition of the Mečiar’s amnesties. The abovementioned parliamentary resolution included also the abolition of individual pardon issued by the President Kováč in 1997, which concerned the prosecution of his own son. The argument for that solution was “to treat alike“ all the decisions issued in the controversial 1990s.
Abolition of the Amnesties and the Review by the Constitutional Court`s Review
Following the effort to satisfy the camp disputing the constitutionality of the chosen solution, as a compromise, the amendment to the Constitution in question simultaneously has given the Constitutional Court the power to review the constitutionality of a parliamentary resolution abolishing an amnesty.
After the Constitutional Court proceedings, a Plenary Session of the court declared that the parliamentary resolution on the abolition of the Mečiar’s amnesties conformed with the Constitution. This conclusion has consequently meant the unconstitutionality of abolished amnesties. The Constitutional Court, held that the amnesties contradicted the constitutional prohibition of arbitrariness and other principles of democracy and the Rule of Law.
Optimistic conclusions? Or maybe not.
The abolition of amnesties by the parliament has been accepted and evaluated positively by a majority of the population. The abolition of amnesties will allow closure of the question that has traumatized Slovak society for more than twenty years. Regardless of the content of the Mečiar’s amnesties, we have to ask an important question as to what these events could mean for the future of Slovak constitutional system. Several parts of the public, are concerned about what could happen in the future by accepting the abolition of presidential decision by the parliament.
The manner in which the Mečiar’s amnesties were abolished raises important questions. What will prevent the parliamentary majority from changing the Constitution in the future because it does not agree with a decision of another public authority. If a subjective or arbitrary evaluation of the current parliamentary majority becomes the only criteria for what the parliament can change in the Constitution, the constitutional system probably does not have “bright tomorrows” as a gradual and purposeful removal of the constitutional system can be expected.
I would like to express my gratitude to Lenka Sabová, MA. for help with translation to English.
Marek Domin holds a PhD in Constitutional Law and is an assistant professor in Constitutional Law at the Faculty of Law of the Comenius University in Bratislava (Slovakia).