Ján Mazák: 'We all feel the need' to amend Constitution

Košice-born Ján Mazák is Slovakia's new Constitutional Court Chief Justice, scheduled to take office on January 22. Only 45, he was nominated to the post by outgoing chief justice Milan Čič and confirmed by his former colleague in the Party of Civil Understanding, current President Rudolf Schuster.
Mazák is a step removed from the sober, severe image cut by senior judicial figures the world over. Although he extols the work of Russian novelist Dostojevsky, he also has a taste for the teen rock band Offspring. He's a swimming enthusiast who loves Prague and Slovakia's Low Tatra mountains. He's a respected legal professional who believes that political nominees bring authority to the work of top courts.

Mazák (right) was nominated for the job by Čič (left) and confirmed by former SOP party mate Schuster.
photo. TASR

Košice-born Ján Mazák is Slovakia's new Constitutional Court Chief Justice, scheduled to take office on January 22. Only 45, he was nominated to the post by outgoing chief justice Milan Čič and confirmed by his former colleague in the Party of Civil Understanding, current President Rudolf Schuster.

Mazák is a step removed from the sober, severe image cut by senior judicial figures the world over. Although he extols the work of Russian novelist Dostojevsky, he also has a taste for the teen rock band Offspring. He's a swimming enthusiast who loves Prague and Slovakia's Low Tatra mountains. He's a respected legal professional who believes that political nominees bring authority to the work of top courts.

The Slovak Spectator caught up with Mazák on January 12, his last day as Slovakia's Deputy Justice Minister before leaving for his new post.

The Slovak Spectator (TSS): You have said you had humble origins. What path did you take to the head of Slovakia's highest court?

Ján Mazák (JM): I was born to a family of common people in Košice. My father was a tram driver. My original ambition was to study medicine or genetics. But from the very beginning I was impressed by law, and I made a last-minute decision to study law at university [P.J. Šafárik in Košice], and after I learned more about old Roman law, no power could have made me leave the faculty.

Mazák says the court will put its decisions on the Internet.
photo: TASR

I was so impressed with the Roman legal system that I was determined to stay at the university and teach there after graduating. Unfortunately, that didn't happen, so I became a junior judge at the regional court in Košice. I worked as a judge for three years and then I became deputy head of the criminal law section at the city court; as of 1987 I was deputy head of the civil law section. In 1990 I became chief justice of the local Košice court and I also started practice as a private lawyer.

From 1989 I held lectures in civil trial law at the Košice Law Faculty, and in 1998 I became an associate professor in civil law. I have written or co-authored over 10 monographs and over 100 studies, articles and reviews in the fields of constitutional, civil and criminal law.

In 1993 I also began in an advisory capacity at the Constitutional Court. I worked there until 1998 when I was named to the post of Deputy Justice Minister and deputy head of the legislative council of the Slovak government.

TSS: How did you respond to the November 1989 revolution?

JM: At that time I was at Charles University in Prague. It was very exciting to see so many people united by the shared idea of changing a regime which had become obsolete, which did not work and which defended the values of non-functional 'real socialism'. I was happy about the changes, but I did not know then what I know today. Our most important work still lies ahead of us - the stability of the state, the political scene, creating a correct economic environment without corruption scandals, without clientelism, and without hatred between political rivals. Ten years after the revolution I prefer to ask how Slovakia will look ten years from now.

TSS: What role has politics played in your life? Were you a member of the communist party before 1989?

JM: Yes, I was, from 1984 to 1989. I would say I was an example of the 'grey zone' theory. I loved my work and I did not see anything special in becoming a communist. I was not a functionary in the party, just a regular member.

When I was offered membership in the Party of Civil Understanding [SOP, founded in February 1998 by current President Schuster], I took it as a chance to fulfill my ambitions. I entered the party in August 1998 and served one month as first vice chairman. The ideas of this party were close to me, as was the former head of the party, Rudolf Schuster. I see politics as a way of helping society, something which is possible only if the right ideas are defended.

TSS: How would you summarise the performance of the Constitutional Court from 1993 to 2000 under the leadership of outgoing chief justice Milan Čič? The court was often criticised for rendering unclear, sometimes even contradictory verdicts.

JM: I think the Constitutional Court managed to fulfil its basic functions during its first term. Led by Milan Čič, the court created a solid base for future development.

Some decisions by the Constitutional Court were accepted with uncertainty. This applies especially to decisions taken this past year, when part of society criticized the decisions of the first senate, then another part of society the decisions of the second senate [the court has two teams of judges, called senates, which render verdicts on different cases - ed. note]. This is of course legitimate, but such situations could have been avoided if some legal mechanism existed allowing the court to take a plenary vote in difficult cases.

That's all I can say. It's a very difficult question - unclear or contradictory verdicts are a natural part of such a difficult area of human activity as are the courts. I was a judge myself for 13 years, and I was present at the Constitutional Court from the very beginning in 1993, so I know how hard it is to express in writing all the elements of a verdict, its effects on people, legal bodies, the state and so on.

TSS: What is your opinion on the quality of the Slovak Constitution? Many legal experts have complained it has major defects and has made it hard for constitutional judges to give clear verdicts.

JM: The constitution is the basic law of a state, and can never be perfect. Indeed, it's not necessary that it be perfect. The Slovak constitution was created in 1992, during the split of the Czechoslovak state. It's natural that the constitution doesn't include solutions to questions which only arose later during the independent Slovak Republic. So let's not speak about the shortcomings of our constitution, but rather about the questions which had not yet been dealt with.

TSS: One of the questions clearly not anticipated by the constitution was what to do if parliament could not agree on a candidate for president, something which resulted in a constitutional amendment and direct presidential elections in May 1999. Are there other questions which remain to be asked and answered, especially about the presidency?

JM: The president should have the right to turn to the Constitutional Court for advice on whether he should or shouldn't sign laws passed by parliament. He should also be able to turn to the court on the constitutionality or legal acceptability of a referendum. This would provide essential protection for constitutionality, something which has a tradition in other European states.

We all feel the need to amend our constitution. The time is ripe to re-consider the three-year limit that a person can be kept in custody, which is a problem [it is too short] for complex investigations, especially in cases of organized crime.

There are also some problems with the general judiciary. We need a new way of appointing judges, one that is used in other countries. Judges should be named by the president but proposed by the highest judicial organs in the country [rather than by parliament, as now happens - ed. note]. Apart from that, the judiciary should be self-administered and independent of executive state bodies. These self-governing organs should be created by judges themselves.

It would also help a lot if the powers of constitutional judges were enlarged by the competence to enforce their decisions, and in certain cases to abolish the decision of another public authority [such as the government].

TSS: The decisions of the Constitutional Court are legally binding only for the future. Is this normal in other countries as well, or is it a specific trait of the Slovak constitution?

JM: Decisions are legally binding from the moment they are delivered, which means that they apply generally to the future. Exceptions exist in specific cases, for example if a referendum is declared invalid by the constitutional court, the referendum is considered to be invalid from its outset. However, if the court is giving an interpretation of constitutional law, it is legally binding only for future cases. This is comparable with other constitutional systems and is not an exclusively Slovak feature.

TSS: Former Constitutional Court judge Ján Drgonec has said publicly that the powers of the Constitutional Court reflect the situation in 1968, when the constitution was a political rather than a legal text, and when judges were under pressure to render the 'correct' verdicts. Do you agree with his view?

JM: That is Mr. Drgonec's opinion, and he has a right to criticise. It is true that when creating the law on the Constitutional Court a certain model was adopted, but it has to be borne in mind that we are only in the process of building our constitutional judiciary. We should give thought to how to make the system better, but we should increase its quality with a sober view of reality, of the powers of the Constitutional Court and its verdicts. We should not adopt foreign models, not because they aren't good, but because a foreign constitutional model would not fit into Slovakia's historical, social, political, legal or economic conditions. We can agree that the American legal system is very good and the French even better, but we have to go our own way.

TSS: When can we expect changes to the constitution?

JM: Changes can be expected whenever sufficient political will is found in parliament, the only organ empowered to carry out the changes. Making these changes requires more than just expertise.

TSS: What do you think of the quality of your new colleagues on the Constitutional Court [appointed by President Schuster on December 3]?

JM: There is a wide spectrum of experts, ranging from legal theorists to people who worked as attorneys or judges. Their expert knowledge covers all the needs of the Constitutional Court. If we are speaking about their skills, let's take Alexander Brostl as an example. He speaks six languages, including fluent Chinese, and is a very good legal theorist who has an innate sense of justice. Ján Klučka is a top specialist in international public law, and even 10 years ago he was considered the best in Czechoslovakia. Lajos Mésáros was a private lawyer, and for 10 years he has sat on constitutional-legislative committees in parliament, which are the basis of all legislation. I am convinced that the people on the court will do a good job as far as their professional skills are concerned, and can be trusted as far as their moral sense goes too.

TSS: Some legal experts have criticized President Schuster's decision to leave the SOP party's Peter Kresák off the list of new judges. Kresák is highly regarded as an expert on constitutional law - do you think he should have been chosen?

JM: Peter Kresák is my friend, and the fact that the president did not name him is a matter for the president himself. I did not speak to Mr. Schuster about the reasons for his decision. I only know the official reason, that the president did not want to name two candidates who were close to the Party of Civic Understanding. It's the president's business.

TSS: What changes do you intend to make in court procedures during your next seven years as chief justice?

JM: Instead of two [verdict-rendering] senates we will have three, each composed of three members. All basic information about every public plenary session meeting and senate meetings will be made available to the public on the Internet. The same will be true for all decisions taken by the Constitutional Court.

The most important thing for me is the unity of the court's decision-taking process. Our first conference [internal court meeting] will be dedicated to this, under the theme 'Unity and unification of the work of the Constitutional Court'. The word 'unity' sounds like a simple one, but it is a legal phenomenon that is studied by teams of legal experts all over the world. 'Unity' gives a certain amount of security to people who want to submit a complaint at the Constitutional Court. It means that decisions taken in the past by the court can tell you how your case will be judged in the future, if your complaint is similar to those the court has already ruled on. This phenomenon is important at all levels of the judiciary, but it plays a key role in the constitutional judiciary since you cannot appeal against Constitutional Court verdicts.

TSS: Was the principle of unity violated in the December 20 decision of the senate led by Constitutional Court Judge Tibor Šafárik? [Šafárik had upheld a complaint by former secret service officer Jaroslav Svěchota, a suspect in a high-level kidnapping case, and had ruled that Svěchota's constitutional rights had been violated by the government - even though the Constitutional Court had previously dismissed over 30 such complaints].

JM: I have already said that I don't want to comment on the decisions of the former Constitutional Court. I don't think it would be correct of me to give comments on these matters. The verdicts of the Constitutional Court are final and legally binding. Commentaries belong to the media, or other lawyers outside the constitutional court, and to scientific institutions.

Let me return to Mr. Drgonec's claim that in the United States all judges have to defend the decisions they take in front of the media. I would like to note first that this is not quite true, and secondly that all nominations in the US are strictly political. Around the world one finds that Constitutional Courts which are apolitical inevitably lack authority, as is the case in Greece.

TSS: Some critics have said the Svěchota verdict has damaged the credit of the Constitutional Court, which has always been among the country's most trusted institutions. Do you agree?

JM: I accept the [Šafárik] verdict, which has to be respected because it was rendered in a proper constitutional way. If the decision somehow damaged the reputation of Constitutional Court, we have to accept that as well because the lay and legal publics have a right to such an attitude. But they should still respect the decision.

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