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. LGBTI activists intend to challenge the legislation with the Constitutional Court.

Amid protests by human rights and political ethics watchdogs, 102 deputies of the 128 lawmakers present voted for the legislation, 18 voted against, three abstained and five deputies did not vote. 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. The opposition party Most-Híd voted against the changes.

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.

Fico dubbed the adoption of the constitution’s revision a celebration, as reaching a constitutional majority is incredibly difficult, especially in what he called the fragmented centre-right scene. The prime minister also said the legislation is good news for anyone who has doubts about the judiciary.

“We managed to separate the position of the chairman of the Supreme Court and the Judicial Council and introduce clearances for judges, which provides a significant ground for cleansing the judiciary, which makes me extraordinarily happy,” Fico said, as quoted by the SITA newswire.

The judiciary

The most-widely criticised part of the Smer-style reform is the across-the-board clearances that candidates for judicial posts and already appointed judges will have to pass 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 based on documents provided by the National Security Office (NBÚ), Slovakia’s vetting authority.

The NBÚ, which is controlled by the ruling Smer, will look into the judges’ property conditions, and check for corrupt behaviour, links with the underworld and abuses of narcotic substances, the Sme daily reported.

The decisions of the Judicial Council can be appealed at the Constitutional Court, SITA 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 judges.

According to the legislation, 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 too 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. Currently, 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 Judicial Council.

Based on the revision, judges will lose their immunity from criminal prosecution, according to the TASR newswire.

Concerns

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.

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 examining evidence on judges and voting on their trustworthiness will take place behind closed doors.

The Fair-Play Alliance (FPA) 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 FPA 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.

A lawyer cooperating with the Via Iuris association, Zuzana Čaputová, opined that the amendment was prepared in a very short period of time, without a wider public debate, which harms the whole initiative.

“The focus should have been on reconstruction, i.e. making functional the disciplinary judiciary, which is a standard tool for taking responsibility,” she told SITA, adding that judiciary changes are necessary, but that this amendment implements them with the wrong tools. Čaputová deemed the across-the-board clearances of judges a misstep.

Marriage

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”.

Even if the conservative provision is now in the constitution, the Alliance for Family (AZR) does not seem to be completely happy, suggesting that even if it is a form of progress, “it won’t protect family and marriage in Slovakia from EU rage and court activism”, TASR reported, quoting a statement.

The AZR is now collecting signatures for a petition asking for a referendum on the protection of traditional family.

Yet, LGBTI activist of the Queer Leaders Forum, Romana Schlesinger, called the amendment one of the nastiest barters in politics since independent Slovakia was established, adding that LGBTI activists plan to challenge the amendment with the Constitutional Court.

“The amendment is neither social, nor democratic, nor Christian,” Schlesinger said, adding that it will have a negative economic impact, as it may cause a mass exodus of LGBTI minorities. “I would say it’s one of the most anti-social, anti-democratic, and anti-Christian things that could have happened.”

The KDH

The KDH has come in for criticism for coupling with Smer over the revision. KDH deputy 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 judicial 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 as 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.