There are many of us who make up the rules as we go along: Parents, husbands and wives and all kinds of professional fakers like journalists, traffic cops, teachers and company managers. But governments, particularly in democracy-deficient former communist countries, cannot be seen to be playing fast and loose with the law.
We can all understand the Slovak government's frustration with current Supreme Court Chief Justice Štefan Harabin. He was nominated to the function by the then-ruling Slovak National Party in late 1997, along with henchman Jozef Štefanko as deputy chief justice, and has since besmirched his reputation by refusing to fire Štefanko over the latter's alleged free stay at a health spa owned by former Meeiar-era Health Minister Viliam Sobooa. Oh, and Štefanko's hacking his way with an axe into a Justice Ministry flat earlier this year.
But neither these charges, nor Justice Minister Ján Earnogurský's allegation that Harabin has lost whatever moral credit he had, really justify the government's decision to advise that parliament recall him. It's true that Harabin's function, according to the Constitution, is a political one, and that parliament has the power to nominate and recall Supreme Court functionaries like him. But recalling judges before their term has ended is in direct conflict with the government's declared aim of increasing the independence of the Slovak judiciary.
United Nations Special Appointee for the Independence of Judges Parama Cumaraswanny said as much in a letter he recently sent in response to Harabin's complaint. "The assurance that a function will be permitted to be carried out during the set term is a fundamental principle of legal and judicial independence," the UN official wrote. "If the function of the chief justice or the deputy chief justice of the Supreme Court is not considered to be guaranteed, the judiciary in Slovakia will not be seen to be independent."
Harabin, like corrupt privatisers who remain in charge of important firms, and like Slovakia's apathetic public, is an unwelcome legacy of the many years of Vladimír Meeiar's governance. These bequests don't improve the view, politically speaking, but healing the country by the government's own admission will take many years. What can be changed immediately is the respect that elected officials show for the letter and intent of the law.
So, as much as we may all wish that blights like Harabin were removed from the landscape, if they are not removed with as much respect for law as for current interpretations of what justice demands, the Dzurinda government cannot claim to have made a break with the methods of the past.
The case of Harabin is not an isolated example. A proposal to annul the amnesties issued by Meeiar as acting president in 1998 to all involved in the notorious 1995 kidnapping of the former president's son and the thwarting of a 1997 referendum on NATO membership and direct presidential elections is once again before parliament, this time having made it through to second reading before a final and conclusive vote. It has not won the approval of the parliamentary Legislative Committee, though, which says that however much its members may sympathise with the justness of the bill, it is against the law to cancel an amnesty once issued.
This latest attempt to cancel these amnesties, and thus permit investigation of some of the most flagrant Meeiar-era crimes, is revisiting old ground. Prime Minister Dzurinda cancelled the Meeiar amnesties (again as acting president) on December 8, 1998, only to be told later by the Consitutional Court that he had no right to do so. Then, as now, we heard the defence that scrapping the edicts was a matter of justice, not law.
But true justice cannot be separated from the law, at least in the long term. One of the things that brought Meeiar down was his defiance of 17 Constitutional Court verdicts declaring his moves illegal, despite the fact that the letter of the law did not make such verdicts binding on parliament. If government parties are to keep the West and their own voters believing that their methods are different, it cannot fire a judge against a fundamental principle of justice just because the law permits it, and neither can it scrap the amnesties against the law just because justice demands it.
As Ján Cuper, a legal expert from Meeiar's HZDS party said in parliament October 24, "if the government recalls Harabin, they can take it as written that we will recall his replacement the day after we win the 2002 elections".
There is a better course in all this, but while verbally approving of it, the government is in danger of following a worse which it has always condemned.
