VIA IURIS: A repeated vote should remain public

According to the opinion of VIA IURIS, it follows from the Rules of Procedure of the National Council of the Slovak Republic that the re-election of candidates for judges of the Constitutional Court of the Slovak Republic should remain public.

The amendment to the Rules of Procedure adopted in 2011 laid down a general rule that candidates for constitutional judges should be elected in a public vote. Candidates for constitutional judges can only be selected secretly if the members of the National Council of the Slovak Republic change the public election to a secret one (§ 39 (8)). At the same time, the secret vote was also explicitly deleted from a key provision of the Rules of Procedure concerning the election of candidates for constitutional judges (from § 115 (1)). The explanatory memorandum to the amendment from 2011 to the Rules of Procedure explicitly states that the purpose of the amendment was to declassify the election of candidates for constitutional judges. Under generally accepted rules of interpretation, the law shall be interpreted according to the legislator’s obvious intention – to introduce a public vote of candidates.

On 12 February 2019, the National Council of the Slovak Republic did not approve a proposal for the secret election of candidates for constitutional judges. Therefore, the election of candidates on 12 February 2019 was public.

Despite the formulation, that a secret vote occurs until the required number of candidates is elected, remained in one of the provisions of the Rules of Procedure of the National Council of the Slovak Republic (§ 115 para. 2), this formulation is faulty and shall not be considered.

The Rules of Procedure explicitly foresee re-election takes place before a new election process. Hence, the decision of the National Council of the Slovak Republic to allow a public election in the 1st round equally applies to re-election. The parliament shall commence a new vote only if the re-election fails to select a sufficient number of candidates – this must be preceded by the submission of proposals for candidates and their hearing before the constitutional committee.

Moreover, the wording “secret choice” contained due to a mistake in § 115 para. 2 is not one of the special rules (lex specialis), which would exclude a public vote in the re-election. This is because the wording merely states that secret ballot repeats but does not specify any preceding vote that should be repeated. In case there was a public vote in the first round, there is no secret vote that could be repeated and, in effect, this formulation cannot be used and applied.

Therefore, it is necessary to use the generally applicable interpretation rule ‘lex posterior derogat legi priori’ when interpreting the Rules of Procedure. Article § 39 para. 8 of the Rules of Procedure explicitly states that a public vote of candidates shall be pursued, which was the latest legal standard adopted in 2011. This abolishes the possibility of using the word “secret vote” in § 115 para. 2 of the Rules of Procedure, which is an earlier rule enacted before 2011.

This implies that if the first round of the election of candidates for constitutional judges was public, a public election should also be held for the re-election of candidates.