Tag Archives: President’s appointment power

Slovakia – Continuing a legacy? President Kiska’s first 3 months in office and the battleground of judicial appointments

The first three months of the presidency of Slovakia’s self-styled ‘first independent president’ (he has not held membership in any political party at any point in his life) Andrej Kiska have been far from inactive, despite the political low season that usually occurs during parliament’s summer recess. Thereby, the issue of judicial appointments has once again returned to the political agenda. While the reform of the judiciary was part of Kiska’s electoral manifesto, it also shows that this is one of the few areas in which the Slovak presidency might still be able to exert decisive influence.

Slovak president Andrej Kiska | photo via prezident.sk

Right from the start of his presidency, Andrej Kiska was thrown in the deep end. Apart from a number of inaugural visits abroad, he had to deal with an invitation to the 70th anniversary of the Slovak National Uprising that his predecessor had extended to Vladimir Putin without consulting the government or the new president-elect. He also had to decide on proclaiming a controversial referendum on issues surrounding same-sex partnerships initiated by a citizens (he opted to ask the Constitutional Court to review the proposed questions) and most recently attended that NATO summit in Wales. While his promise to station NATO troops in the country was met with great opposition by the government and is likely to lead to more conflict in the future, Kiska picked his first fight with government parliament on an issue that already created conflict between these institutions and his predecessor, i.e. the judiciary.

During his first week in office, Andrej Kiska was faced with the decision of whom to appoint as new judges to the country’s Constitutional Court. Parliament had already delivered a list of six nominations to his predecessor (who chose not to concern himself with the issue during his last days in office) from which Kiska – according to Art. 134 II of the constitution – was to appoint three. However, Kiska only appointed one candidate and subsequently demanded that parliament resent him with new candidates, citing their lack of experience with regards to constitutional law and justifying his actions by his oath of office. Naturally, the request was rejected by parliament and government and – partly due to parliament’s summer recess – no further actions have been taken from either side. Only two weeks later, Kiska used his first veto on a bill that among others foresaw to make elections in the Judicial Council (self-governance of the judiciary in Slovakia) secret and later rejected the appointment of a judge due to alleged irregularities in the selection process.

Kiska’s activity in this area thereby does not seem to be solely motivated by his wish to implement his electoral promises, some of which (e.g. the donation of his salary to families in need) he has already been able to implement with publicity effect. The judiciary also presents one of the few areas in which the Slovak president is still be able to exert decisive influence. The president does not have mentionable power over government formation and censure (while presidents can theoretically reject candidates, they have not done so since 1993) or over substantive legislation as their veto of such bills is almost always overridden. Due to the very frequent use of vetoes by Kiska’s predecessors Schuster and Gašparovič, the power has also largely lost its potential to be used as a clear signal to voters.

In contrast, there is only little constitutional practice on president’s discretion in judicial appointments and the precedent case of Ivan Gašparovič’s refusal to appoint a new public prosecutor has shown that Kiska might be able to force his preferences and otherwise has to fear little consequences. Given that Kiska will remain in opposition with the government for the next two years (or even longer should the party of the centre-right continue to fail at uniting against the SMER party of Prime Minister Fico), having well-disposed judges on the constitutional court would certainly strengthen Kiska’s otherwise rather weak position.

Thus, although Kiska’s activism regarding the judiciary may partly be motivated by his wish to fulfill the promises of judiciary reform and fighting corruption on whose basis he was elected, it could not only help to secure his re-election but also strengthen his position vis-a-vis parliament and government. This would particularly be true if he actually plans to remain completely independent politically (i.e. not even form an informal affiliation with one of the centre-right parties) and lets the cohabitation with the government – irrespective of its party composition – continue.

Kosovo – Still awaiting a new government and presidential choice(s) for the prime minister post

Three months after a snap parliamentary election was held in Kosovo on 8 June, the country’s parliament has not started to work and a new government is yet to be formed. Meanwhile, the Constitutional Court has been called upon twice to rule over who should be nominated as prime minister and what is the correct procedure for the election of the speaker of parliament.

A previous post explained how government formation became a difficult constitutional matter in the aftermath of the general election.

Atifete Jahjaga, the non-partisan head of state elected by the parliament with cross-party support in 2011, had to decide whether to nominate outgoing prime minister Hashim Thaci of the Democratic Party of Kosovo (PDK), which topped the polls and held 37 seats in the 120-seat parliament; or to nominate Ramush Haradinaj of the opposition Alliance for Future of Kosovo (AAK), which signed a post-election coalition agreement with the Democratic League of Kosovo (LDK) and the newly established Initiative for Kosovo (Nisma), and claimed to have secured the support of the parliamentary majority. She asked the Constitutional Court to clarify the president’s role in government formation on 19 June.

The Court decided in favour of the PDK nomination. In its 1 July ruling, the Court argued that the president should nominate for prime minister the candidate proposed by the political party or coalition that was registered in the general election under one name and obtained the highest number of seats in the assembly. Thus, the Court specifically ruled out the possibility of nominating as prime minister a candidate put forward by a post-election coalition and opened the way for Hashim Thaci’s third appointment as prime minister.

In the meantime, the battle between the ruling PDK and the anti-Thaci coalition moved on to the election of the speaker of parliament. Under Article 67.2, “the president of the assembly is proposed by the largest parliamentary group and is elected by a majority vote of all deputies”. While PDK holds 37 seats in the new parliament, the opposition LDK, AAK and Incentive for Kosovo control 47 seats. To ensure that they will be able to propose the speaker of the parliament, the three parties formed a joint parliamentary group on 11 July. However, PDK still argued that the right to nominate the speaker of parliament belongs to the party that won the most votes in the election.

In accordance with Article 66.3, President Jahjaga decided that the parliament should convene on July 17. Following the parliament’s constitutive session and the election of the new leadership, she was also supposed to appoint the new prime minister.

However, things took a different turn. The chair of the first parliamentary session held on 17 July refused to recognize the LDK-AAK-NISMA group. The argument was that parliamentary groups could only be formed after the election of the president and deputy presidents of the assembly. As a result, the opposition parties boycotted the session and left the room when PDK’s proposal for the speaker of parliament was put to vote. In the absence of quorum, the meeting was suspended. However, the opposition returned later on and elected Ifa Mustafa, LDK’s proposal, as President of the Assembly in the absence of PDK. Naturally, PDK contested the election and asked the Court to rule on its constitutionality. President Jahjaga also decided to wait for the Court’s verdict before appointing the prime minister.

In its 22 August ruling, the Court found the election of speaker unconstitutional both procedurally and substantially. On the first ground, the meeting called after the adjournment of the Constitutive Session due to lack of quorum was declared illegal. On the second ground, the Court referred to its previous decision regarding the parties entitled to be consulted first about the appointment of the prime minister. The final ruling was that the Constitution prioritizes election results as a criterion for recognizing the largest party or coalition in the new assembly with the right to nominate the next speaker of parliament.

The constitutive session of the Assembly will be resumed on 12 September. Both the opposition and the ruling PDK are claiming the post of the speaker of parliament and are hoping to form the government. The opposition parties have announced that Self-determination will vote against the PDK nominees and are expecting to elect Ifa Mustafa as president of the assembly once again. The ruling party is counting on the support of the ethnic minorities, who do not want new elections to be called.

President Jahjaga is likely to play an important role in this context. Provided that all four opposition parties vote against Thaci, whom the president is expected to appoint as prime minister first, she will need to make a second nomination within ten days. The Constitution is however silent on whether the president should appoint a second candidate from the same party or not. Nevertheless, if the government fails to win majority support for the second time, the president needs to announce new elections, which should be held within the next forty days (under Article 95.4). In its first ruling, the Constitutional Court acknowledged that the president has full discretion in making the second nomination. In a more peculiar fashion, though, the Court also underlined that the president’s main responsibility is to find a solution that avoids new elections.