"Quick fix" for the constitutional crisis: what is wrong with the MP’s initiative

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Currently, all the political players are searching for possible ways out of the situation, caused by the decision of the Constitutional Court (CC) on the e-declaration system. Yesterday, MPs from "Sluha Narodu", "Holos" and "Dovira" group introduced the bill #4311, which, in their opinion, can become a quick but temporary safeguard from any further negative decisions of the CC. 

In our analysis of the possible solutions for the constitutional crisis, we expressed the opinion that the easiest way, which complies with the Constitution, is to increase the quorum (i.e. how many judges should participate in a hearing) and the number of votes, required for the adoption of decision (i.e. how many judges should vote for the decision). Such steps can make the process of adoption of the CC decisions more complicated and can increase the influence of trustworthy judges. Here we explain what exactly is proposed by the MPs and what risks such decisions may pose. 

As of now, the composition of the CC comprises 15 judges, and the quorum is 12 judges. The decision is adopted by at least 10 votes of the judges. In our proposal on establishing quick safeguard from adopting the ignorant decisions, we suggested increasing the quorum to 15 judges. Moreover, we believe that it is necessary to raise the number of votes, necessary for the adoption of decisions to 15, at least until the majority of the CC judges will be trustworthy judges, appointed under the new procedure. 

However, the bill #4311 addresses different issues – instead of increasing the quorum and the number of votes for adopting decisions, MPs suggest amending the provisions of the Law on Constitutional Court, which determine the authority of the latter. The bill envisages that the CC possesses authority only if it consists of at least 17 judges. 

This means that if the number of judges of the CC is lower than 17 (currently there are only 15 judges), the CC will not be able to review any case. This prevents the CC from adopting other unconstitutional decisions, however, it also brings a threat that until all vacancies in the CC are filled, the President, the Parliament or the Cabinet may adopt any unconstitutional decisions as well. In spite of the recent questionable decision of the CC, its current composition justly reversed numerous unconstitutional initiatives of the government. We underscored this possible threat in our analysis. 

Even if the new judges are appointed to the CC, the latter will have an opportunity to adopt any decision as the requirements to the quorum remain the same (and the bill #4311 does not amend them). In this case, the trustworthy judges will not be able to block unconstitutional decisions. This will bring us back to the starting point of the current crisis. 

Some of the members of the Parliamentary Legal Committee have already stated that they are drafting another bill, which will amend the requirements to the quorum. This means that the problems of the bill #4311 are well-known. At the same time, it is very concerning that none of the public officials raises the idea that the new judges should be selected according to the new transparent procedure. 

The implementation of the new procedure is the only way to prevent a similar crisis in future. We hope that the reform of the CC will not be finished after the adoption of "quick fixes". We will follow the situation and inform you of any further developments.