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Referendum taken to court: Quo, quo, scelesti ruitis?

So, the referendum plot thickens - a group of ruling coalition MPs has appealed to the Constitutional Court to deliver a ruling on whether or not the November 11 referendum on early elections is in conflict with the law. As the Roman poet Seneca asked so long ago, "Whither are you hastening, fools?"
It's become a fad in recent years among Slovak politicians to appeal to the constitution whenever a politically sensitive issue is discussed. This point was made by the Justice Ministry's Daniel Lipšic recently - the recent treaty concluded between Slovakia and the Vatican is 'unconstitutional' for the former communist SDĽ party; the government's intention to recall Supreme Court Chief Justice Štefan Harabin is equally 'unconstitutional' for the political opposition parties which appointed him, while those who have little reason to fight corruption also seek refuge in the constitution against an ambitious law to fight money laundering.

So, the referendum plot thickens - a group of ruling coalition MPs has appealed to the Constitutional Court to deliver a ruling on whether or not the November 11 referendum on early elections is in conflict with the law. As the Roman poet Seneca asked so long ago, "Whither are you hastening, fools?"

It's become a fad in recent years among Slovak politicians to appeal to the constitution whenever a politically sensitive issue is discussed. This point was made by the Justice Ministry's Daniel Lipšic recently - the recent treaty concluded between Slovakia and the Vatican is 'unconstitutional' for the former communist SDĽ party; the government's intention to recall Supreme Court Chief Justice Štefan Harabin is equally 'unconstitutional' for the political opposition parties which appointed him, while those who have little reason to fight corruption also seek refuge in the constitution against an ambitious law to fight money laundering. And so it goes, with the country's most important legal document being invoked whenever someone feels a law or a decision hurts his interests.

This trend seems to have continued with the fall referendum, which will ask citizens to decide if the term of the current parliament should be shortened from its standard four years. If more than 50% of voters take part, and more than half of those vote in favour, then it means early elections and an end for the Dzurinda government.

It's understandable, of course, that the government doesn't want to see this happen. The coming referendum is already having an effect on nervous money markets, and if early elections were to take place, they could deal a death-blow to investment, to EU and NATO hopes, and might mean that the two years of economic pain citizens have endured would be all for naught, assuming a new government would scrap many of the current coalition's programmes. The referendum, in a word, is bad - but that doesn't mean it's unconstitutional.

At issue in the appeal presented to the Court by government MPs and supported by such leading legal lights as Ernest Valko, former head of the Czechoslovak Constitutional Court, and (self-) heralded legal expert Peter Kresák, is the conviction that the referendum question is illegal. According to Article 93, paragraph 3 of the constitution, "no issue of fundamental rights, freedoms, taxes, duties or national budgetary matters may be decided by a public referendum." The appealing MPs argue that a referendum on early elections in fact does affect one of the fundamental rights and freedoms listed in Part 2 of the constitution - the right (Article 30, paragraph 4) in which "all citizens shall have equal access to elected or public offices."

The argument is as follows - Article 30 Para. 4 assumes that everyone should be given access to the same or equivalent public offices, and that by cutting short the current MPs'mandates, the referendum would be discriminating against them by allowing them only two rather than four years. Ergo the referendum question concerns a basic right and is unconstitutional.

Lipšic, a constitutional expert himself, pointed out that the assumption made here is wrong. Article 30 Para. 4 guarantees equal access to public office, but says nothing about whether the terms of this office have also to be equivalent. If this interpretation were to hold water, he wrote, we would have to agree that the thwarted 1997 referendum on direct presidential elections was invalid as well, since it proposed to make the president elected by the people rather than parliament, meaning that an MP's mandate would henceforth be 'weaker' for not having the power to elect the president.

He argued further that on matters where the constitution is not absolutely clear, Slovakia should follow the advice of US constitutional expert Robert Bork - that where the constitution doesn't state otherwise, we should in all cases follow the wishes of the majority. In other words, if the referendum brings back a valid and pro-elections result, politicians should obey the popular will and not monkey about with interpretations of the constitution.

But this sober advice doesn't cut the mustard with our enthusiastic government litigators, who are still hoping to get a verdict from the court's Chief Justice Ján Mazák before November 11. Why they're in such a hurry is not clear - even if the court rules the referendum is illegal, the plebiscite has to go ahead, since no one has the right to scrap a referendum once the president has called it. Furthermore, the court's ruling has only a pro futuro character, meaning that even if Mazák says the question interferes with a basic right, he can only prevent a similar referendum from being held in the future - not invalidate the results of this one.

Oh, and a few more uncertainties - even if the question is ruled legal, the referendum is valid and the answer is yes, let's have new elections - parliament has to approve its result by a two thirds majority. The constitution says nothing about what happens if they don't approve it, or if they approve it with moderations - but it does say MPs must "exercise their mandates... according to their best conscience and conviction. They are bound by no directives."

On the whole, then, it would be most satisfactory all round if the referendum didn't attract the necessary number of voters. That would relieve the government of the need to secure a court verdict damning the plebiscite as illegal, thus justifying in advance its refusal to accede to the wishes of citizens. It might also make for one fewer pointless court case in the future - for it's a cinch that the opposition is bound to regard any resistance to the referendum as not only bad, but - you guessed it - unconstitutional.

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