BOTH public and secret ballots are legitimate methods for the Slovak Parliament to use to select the prosecutor general, and are in line with the country’s constitution, according to a ruling by Slovakia’s Constitutional Court. The long-awaited decision should mark the end to a lengthy tug-of-war between opponents and advocates of a change to the parliamentary rules that govern how one of the country’s most powerful positions is filled.
Acting general prosecutor Ladislav Tichý and a group of 35 opposition MPs from the Smer party had challenged the change in the parliamentary discussion order, which was approved by MPs in May this year. Slovak President Ivan Gašparovič has been using the court case as a reason to refuse to formally appoint Jozef Čentéš, who was chosen to serve a seven-year term as general prosecutor by parliament on June 17.
After long-running problems getting its candidate selected via a secret ballot – including a vote in December last year in which several coalition MPs anonymously voted with the opposition, almost bringing down the government – the ruling coalition went to considerable lengths to turn the previously-used secret ballot for choosing general prosecutors into a recorded vote.
Paradoxically, MPs ended up chosing Čentéš using the original secret-ballot method. They did this mainly to avoid complications in the event that the rule change were to be later overturned by the Constitutional Court.
“I hold the legal opinion that there are no legislative barriers in the way of my appointment,” Čentéš commented after the ruling on October 5, as quoted by the SITA newswire.
If Smer returns to power it will change the selection process back to a secret-ballot-only method as the party views this as “more democratic”, Smer leader Robert Fico said in response to the ruling of the Constitutional Court, adding that the court’s decision must be respected nevertheless.
The ruling Slovak Democratic and Christian Union (SDKÚ) said that the court ruling was a defeat for Smer.
Prime Minister Iveta Radičová said she was convinced there was now no reason for President Gašparovič to refuse to appoint Čentéš. In a statement, she noted that the Constitutional Court ruled in September 2009 that the president is not entitled to judge the professional background of nominees because the president is not responsible for their performance in the job. By the act of appointment the president only certifies that during the process of proposing the candidate all of the legal procedural requirements have been met.
President Gašparovič, who must formally appoint the general prosecutor, avoided commenting on the ruling, and suggested he would do so only after he had obtained the court’s written decision.
Political ethics watchdog Fair-Play Alliance (FPA) said that the president now has no choice other than to appoint Čentéš. Its director Zuzana Wienk said that every attempt to delay the appointment was part of a cynical power game aimed at “keeping the prosecution under the control of certain power centres”, SITA reported.
Gašparovič announced immediately after the June 17 vote that he would not appoint Čentéš, who was backed by the ruling coalition, until the Constitutional Court had issued a ruling about the constitutionality of the new selection procedure.
But the court’s subsequent decision to drop any interim objections to the selection procedure – and the fact that Čentéš was in any case chosen using the old procedure – left the president, who has vetoed numerous coalition-backed laws passed by parliament, out on a limb.
The term of the previous general prosecutor, Dobroslav Trnka, expired in February. In the absence of a formally appointed successor, Trnka’s deputy, Tichý, won automatic promotion to the post of acting top prosecutor.
The court looked at whether the rule change was in line with constitutional principles, rights and freedoms. It ruled that no constitutional principles had been violated since the Slovak Constitution does not define such ballots as exclusively secret. According to the court, no real conflict has emerged and the constitutional principle of the secret ballot has not been violated. The court also found that the change to the selection method did not violate the equality of rights or evoke retroactivity.
A majority of the constitutional judges voted for the decision, while the differing opinions of two judges, including court president Ivetta Macejková, were attached to the ruling, Macejková said, as reported by SITA.
In the reasoning, Macejková noted that it was known on June 15 that the Constitutional Court had issued a provisional ruling suspending the validity of the change in the rules of parliamentary order until the court had reached a definitive verdict on the constitutional merits of parliament’s change in the voting procedure.
A court ruling must be officially published in the country’s collection of laws in order to become effective and the ruling coalition, according to the Sme daily, used this time gap to hold the vote on June 17, because the court’s decision had at that time been announced but had not yet been published.
“The failure to respect the decision of the Constitutional Court was argued that the decision was not binding because it had not been published in the country’s collection of laws and thus it was possible to hold the vote even based on the challenged provisions,” Macejková said, as quoted by SITA.
According to the court, the fact that the June 17 vote was secret means that the rules were respected formally and legally, based on both the revised and also the original legislation.
The Constitutional Court on June 29 overturned its own provisional ruling, which had suspended the validity of the parliamentary rule change affecting the way the general prosecutor is selected and also appeared to block any other method of selection.
10. Oct 2011 at 0:00 | Beata Balogová