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Disputed revision to constitution sails through parliamentDefinition of marriage makes it to Slovakia’s supreme law
4 Jun 2014 Beata Balogová Politics & Society
BORN from a peculiar union between the ruling Smer and the opposition Christian Democratic Movement (KDH), a revision to the country’s constitution sailed through parliament on June 4, defining marriage as a “unique bond between a man and a woman” and introducing the ruling party’s remedies for the judiciary, including the disputed clearances for judges.
Amid protests by human rights and political ethics watchdogs, 102 deputies of the 128 lawmakers present voted for the legislation. Smer, assisted by KDH members as well as a couple of Slovak Democratic and Christian Union (SDKÚ) and Ordinary People and Independent Personality (OĽaNO) MPs, voted for the constitutional changes, which join two completely unrelated issues: changes to the country’s judiciary and a traditionalist definition of marriage.
Criticism however poured in over both the content of the revision as well as Smer’s rush to have it adopted with what political transparency organisations called a lack of public debate. Originally slated for discussion at June’s session, Smer squeezed the draft amendment into the May session, leaving the media to ponder the reasons behind such a move.
The Smer-KDH union to amend the constitution emerged during the presidential campaign, which saw Smer boss Robert Fico and one-time KDH head Pavol Hrušovský running for the top state post and both failing to get elected, with Hrušovský suffering a rather overwhelming defeat, picking up only 3.3 percent of the vote.
The most-widely criticised part of the Smer-style reform are clearances that candidates for judicial posts and already appointed judges will have to pass in order to become eligible for the job. While the original version submitted to parliament by the KDH and Smer did not include such a provision, it was later inserted by Smer through an amending proposal.
According to the law, the Judicial Council, the top judicial body overseeing the operation of the courts in Slovakia, will have a say over whether judges meet the conditions for performing their job, while a disciplinary senate will withdraw the eligibility of judges in the event of violations. The Judicial Council will perform the screening based on documents provided by the National Security Office (NBÚ), Slovakia’s vetting authority. The decisions of the Judicial Council can be appealed at the Constitutional Court, the SITA newswire reported.
SDKÚ deputy Ľudovít Kaník stepped into the game by proposing that the country’s president should have the last say in the appointment of the judges.
According to the draft, the president will continue to appoint three members of the judicial council, though the original draft by Smer stripped the president of this authority. The government will appoint three members of the Judicial Council and three members will be appointed by parliament. Nine members will be elected by the judges. However, the president of the Supreme Court will no longer serve as head of the Judicial Council, SITA reported. Current Supreme Court President Štefan Harabin holds both positions.
Meanwhile, an amending proposal, submitted by KDH chairman Ján Figeľ and Speaker of Parliament Pavol Paška of Smer, would not allow the Supreme Court president to automatically become a member of the Judiciary Council.
Based on the revision, the judges will lose their criminal immunity, according to the TASR newswire.
The judiciary reform pursued by Smer and the KDH through a revision to the constitution is at odds with international standards, said the European Association of Judges (EAJ), with its President Christophe Regnard calling on Justice Minister Tomáš Borec in a letter to try to rectify the situation. The EAJ learned about the revision, including the widely criticised clearances, from the Association of Judges of Slovakia. The organisation claimed that a political and media campaign has been waged against judges in Slovakia, SITA wrote.
Opposition Most-Híd MP Lucia Žitňanská has been critical of the Smer-KDH initiative from its inception, saying that the proposed changes will stop the judiciary from opening up to public control, a tendency which she as a minister under the government of Iveta Radičová introduced and which recently allowed, for instance, the public to put pressure on the Judicial Council and eventually prevent Harabin from getting re-elected into the top justice post.
“The amendment goes against the concept of an open judiciary,” Žitňanská told a press briefing on the morning of May 28, explaining that the most important measure that the amendment introduces, security clearances for judges, means that evidence on judges and voting on their trustworthiness will take place behind closed doors.
The Fair-Play Alliance also expressed concern that the security clearances for judges might be easily abused.
“Besides, their trustworthiness is questionable due to the fact that Štefan Harabin, too, has clearance,” Zuzana Wienk of the Fair-Play Alliance told the media.
Borec does not share these concerns.
“I’m convinced there are respective assurances to make sure abuse does not occur,” Borec said, as quoted by SITA, explaining that a judge who is not deemed eligible for the judicial post will be able to appeal to the Constitutional Court.
The KDH has harvested criticism for coupling with Smer over the revision. KDH deputy Pavol Hrušovský, one of the authors of the revision, claims that the legislation should not harm anyone.
“The goal is to remove the bad and keep the good ones [judges],” Hrušovský said when commenting on the controversial clearances, adding that risks cannot ever be 100 percent eliminated.
Hrušovský denied that his party manufactured deals with Smer, arguing that the KDH wanted to include the definition of traditional marriage in the constitution, but could not have done it alone.
Hrušovský said he is aware that if a systemic change is in question, it might instil a sense of unease in the environment of the 1,400 judges. However, he considers the clearances a way to determine whether a judge appointed by the president is worthy of being a judge.
“I cannot exclude the influence of this mafia on the bodies that will perform the clearances,” said Hrušovský.
The KDH’s pet provision introduces into the constitution the words that “marriage is a unique bond of a man and a woman. The Slovak Republic thoroughly protects marriage and pursues its good”.
LGBTI rights organisations and other NGOs voiced protests against the definition of marriage that the KDH endorsed as part of the joint draft amendment.
Shortly after the amendment was passed, Martin Macko of the LGBTI rights organisation Iniciatíva Inakosť wrote in a release that it is “an extraordinarily sad report on the state of democracy in Slovakia”, when the deputies are making an effort to protect from the imagined threat coming from a small minority by de facto declaring all families not established through marriage not worthy of protection.
Chairwoman of Amnesty International Slovensko Jela Dobošová argued that the agreement over the deputy proposal of what she called a “constitutional ban of same sex marriages” happened behind closed doors without any debate.
“The change of a fundamental law of the country was handled without a wide societal debate, without the presence of those whom it will concern the most,” Dobošová said in a release on May 28, adding that human rights became a subject of bargaining between two political parties, which might lead to a change in the constitution and, thus, “discrimination based on sexual orientation”.
On May 28, when parliament started debating the amendment, critics organised a protest in front of the parliament building, voicing their concerns that such an arrangement would turn non-traditional families (single parent families, divorced families, etc) into second-class families.
On May 22, the government’s advisory bodies, the Labour Ministry’s Gender Equality Committee and the government’s Human Rights Council, debated the proposed amendment.
The committee expressed concerns that the proposed definition of marriage is not in accordance with one of the main principles of the Family Law, which secures protection to all forms of families. The committee believes that such a provision in the law could seriously threaten the already existing pro-family policies of the state, including those which protect single parents or divorced parents and their children, its deputy chair Adriana Mesochoritisová wrote.More from Politics & Society
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