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Referendum on Early Elections in Slovakia: Constitutional Challenges in Times of Crisis

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Referendum on Early Elections in Slovakia: Constitutional Challenges in Times of Crisis Referendum on early elections in Slovakia: Constitutional challenges in times of crisis Marek Domin Abstract In 2020, the tenth democratic and free elections after the fall of the communist regime in Slovakia resulted in a broad coalition government, which obtained its mandate mainly to fight corruption. However, the global pandemic of COVID-19 has fundamentally changed priorities. Indeed, growing dissatisfaction with the governance of the state in early 2021 has led to the organization of a referendum on early parliamentary elections. The article draws attention to the constitutional problems associated with holding such a referendum in the conditions of the Slovak Republic, not only in general, but also, and especially, in times of crisis. Keywords: constitutionality – COVID-19 – early elections – elections – referendum – Slovakia. CONTENTS: 1. Introduction. 2. Parliamentary elections and national referendum in Slovakia. 3. Problems of a referendum on early elections in general. 4. Problems of a referendum on early elections in times of crisis. 5. Conclusions. Associate professor of Constitutional Law at the Comenius University in Bratislava, Slovakia. External advisor of the Constitutional Court of the Slovak Republic. The article was peer-reviewed by the Editorial Board. Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società 1. Introduction In 2020, the tenth democratic and free elections after the fall of the communist regime in Slovakia resulted in a broad coalition Government (four very different political parties, including conservatives, liberals and also populists)1, which obtained its mandate mainly to fight corruption. Although the governing coalition appears to have achieved some success in that field, the global pandemic of COVID-19 has fundamentally changed priorities. After a relatively mild beginning, the pandemic situation in Slovakia deteriorated significantly, especially at the turn of 2020 and 2021, which resulted in Slovak hospitals reaching full capacity. Therefore, not only opposition forces, political parties Smer – Sociálna demokracia (Direction – Social Democracy) and Hlas – Sociálna demokracia (Voice – Social Democracy), but also experts and the general public had started to rebuke the Government of the Slovak Republic (hereinafter referred to as the ‘Government’) for failing to manage the State in times of crisis. The problem was not only the poor communication of restrictive measures, but also selection and frequent changes thereof, which often gave an impression that the Government was working by the method of trial and error. Also, other problems were raised up, such as cases concerning doubts about the authenticity of the final university theses of both Boris Kollár, the Speaker of the National Council of the Slovak Republic (hereinafter the ‘National Council’ or the ‘Slovak Parliament’) and Igor Matovič2, the Prime Minister himself. Growing dissatisfaction with the administration of the Country during the crisis in early 2021 resulted in efforts of the two most relevant opposition political parties3 to hold early parliamentary elections. Instead of elections in 2024, they demanded that elections take place in the autumn of 2021. As the bill proposing a constitutional act which would shorten the Slovak Parliament’s running term- did not pass, the opposition came up with an initiative to reach early parliamentary elections by a referendum. The referendum on shortening the parliamentary term leading to early elections is nothing new in Slovakia, despite the fact that the Constitution does not explicitly mention that possibility. Since the establishment of an independent State in 1993, two such referendums have been held. The first in 2000, the second in 2004. However, none 1 Namely, Obyčajní ľudia a nezávislé osobnosti (Ordinary people and independent personalities); Sme Rodina (We are the family), Sloboda a solidarita (Freedom and solidarity) and Za ľudí (For the people). 2 On 1 April 2021, Igor Matovič was replaced as Prime Minister by Eduard Heger, former Minister of Finance. 3 These opposition political parties are Smer – Sociálna demokracia (Direction – Social Democracy), led by former Prime Minister Robert Fico (Prime Minister in 2006-2010, 2012-2016 and 2016- 2018), and Hlas – Sociálna demokracia (Voice – Social Democracy), led by other former Prime Minister Peter Pellegrini (Prime Minister from 2018 to 2020), which was created only in September 2020 by the split of the first of mentioned parties. n. 1/2021 ISSN 2612-6672 | DOI 10.13130/2612-6672/15465 | 198 Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società of these referendums was successful, whereby, as we explain below, the validity of the vote presupposes the participation of an absolute majority of all eligible voters4. From the Constitution of the Slovak Republic (hereinafter referred to as the ‘Constitution’) point of view5, the referendum on early elections is more than problematic, despite the fact that it has already taken place twice. In addition, holding a referendum and consequently parliamentary elections in the time of crisis caused by the pandemic raises further constitutional issues. Therefore, the aim of this article is to briefly draw attention to the constitutional problems associated with holding a referendum on early elections in the conditions of the Slovak Republic, not only in general, but also in times of crisis specifically. 2. Parliamentary elections and national referendum in Slovakia Before addressing the problematic aspects of the referendum on early elections, it is appropriate to provide the non-Slovak reader with basic information about constitutional and legal regulation of parliamentary elections and national referendum in Slovakia. The foundations of the constitutional regulation of parliamentary elections, elections to the National Council, can be found in the first section of the fifth chapter of the Constitution (Articles 73 to 92) devoted to legislative power. The National Council is the supreme representative and sole legislative body of the Slovak Republic consisting of 150 deputies elected for a four-year term. All citizens of the Slovak Republic older than 18 years have the right to elect Members of the National Council. The right to be elected belongs to citizens older than 21 years of age with a permanent residence in the Country. Details on obstacles to exercise the right to vote and the right to be elected are governed6, on the basis of a constitutional blanket norm, by the Electoral Act7. The Electoral Act regulates electoral system too, as the Constitution remains silent on this issue. Members of the Slovak Parliament are elected through a proportional electoral system with bound candidates’ lists. Candidates’ list can only be submitted by registered political parties or their coalitions, and only by parties or coalitions that payed an election deposit of EUR 17,000 and meet the minimum number of members. All 150 seats in the National Council are distributed in a single national constituency. An electoral quota system, namely the Hagenbach-Bischoff electoral quota, is used for the distribution. 4 The 2000 referendum was attended by 20.03% of citizens entitled to vote. Participation in the second referendum was slightly higher, namely 35.86%. The slightly higher turnout in the second referendum was probably because it took place on the same day as the first round of election of the President of the Slovak Republic. 5 Constitution of the Slovak Republic, no. 460/1992 Coll. as amended till date. 6 For more details on obstacles in exercising the right to vote in Slovakia as one of the persistent problems of the right to vote, see M. Domin, Thirty Years of Democratic and Free Elections in Slovakia: Can really Everyone Vote?, in Acta Universitatis Danubius, Vol. 16 No. 3, 2020, pp. 7- 20, https://dj.univ-danubius.ro/index.php/AUDJ/article/view/590/921. 7 Act no. 180/2014 Coll. on the Conditions for Exercising the Right to Vote, as amended till date. n. 1/2021 ISSN 2612-6672 | DOI 10.13130/2612-6672/15465 | 199 Nuovi Autoritarismi e Democrazie: Diritto, Istituzioni, Società As regards the referendum, the Constitution envisages several types thereof. In addition to the referendum at the municipality level and another one at the self- governing region level, the Constitution refers to a national referendum regulated in the second section of the fifth chapter (Articles 93 to 100). Involving a national referendum in the part of the Constitution regulating legislative power suggests that this referendum is considered, in addition to the activities of the National Council, to be the second possible way of exercising legislative power8. All citizens of the Slovak Republic who have the right to elect Members of the National Council are eligible to participate in the national referendum. Organizational details are left to the Electoral Act. However, the Constitution governs the subject of the referendum and who and under what conditions can call it. In accordance with Art. 93 par. 2, a referendum may decide on important issues of public interest9. However, the following paragraph 3 adds that «No issues of fundamental rights and freedoms, taxes, levies and the State budget may be decided by a referendum». The referendum is called by the President of the Slovak Republic (hereinafter referred to as the ‘President of the Republic’). Nevertheless, the President of the Republic can only do so, if the National Council or a group of at least 350,000 citizens ask them to call a referendum.
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