The calls to change this document substantially are stronger from day to day; therefore an explanation of this curious contradiction seems to be necessary--not only because of its political importance, but also because of the constitution-making occasion created by it.

First we will compare some circumstances in the making the present constitution in Slovakia to the original constitution-making process in the USA and France, and to the constitution-making processes in the neighboring countries after 1989, to determine the Slovak differences.

Constitutional differences

A country's constitution is a symbol of the country's sovereignty. It signals the capability of the people of a given country to create their own political system. The different authors assume the achievement or maintenance of sovereignty of the USA or France not only independently of the will of other countries, but also against the will of some of them. That is not the case of the Slovak Constitution and Slovak constitutionalism at all. None of the previous constitutions was formulated and adopted independently of the will of other stronger countries. And this was also not the case of the previous one.

We can document this claim with several statements by Vladimir Meciar, the Slovak prime minister at the time this constitution was written. After passing the constitution, he signalled many times that the government had to formulate a constitution that could be used to achieve international recognition for the newly independent country. That was not necessary in the USA or France, nor in Poland, Hungary and the Czech Republic after 1989, where the new constitutions or amended old ones were created mainly by the revolutionary forces, sometimes consensually with the soft-liners of the old regime.

The basic question of the sovereignty in constitution-making is the form in which the sovereignty of the people expressed by formulating the basic rights and the power structures of the state or otherwise, which forms of expression are more or less legitimate. Is it the general will or political pluralism? But that was not, and to some extent is not, the Slovak case.

The French and US constitutions were created by persons wanting to achieve a freer political system than the previous one. They were revolutionaries, fighting against feudalism, colonization etc. But the "founding fathers" of the present Slovak constitution were those who acted against the revolution, wanting to stop privatization, end decentralization of power structures of the state, and strengthen nationalism. It was the revolutionary forces themselves which were excluded from the writing of the constitution in Slovakia. It was not a constitution coming out of the revolution--much less so than the amended old one--but the constitution of a partial restoration. This constitution has no revolutionary legitimization. And this was also not the case in the other countries, in the USA and France and the other countries of V-4.

The third difference in comparison with the constitution-making process in the USA and France is that in Slovakia, the people were not involved in the process. The text was formulated and adopted within a few weeks, without any public discussion of the principles and structure of the constitution, or of constitutionalism at all, before it was adopted by the parliament. To clarify this "no Federalist Papers situation," we need to analyze the constitutional traditions of the country.

The fourth difference is this constitutional tradition. There have been many constitutions in Slovak history, but none has been interpreted by the great majority of the present population of the country as a just one. This claim contains two important constitutional traditions.

The first one is the large number of constitutions. There were two in the first Czechoslovak Republic, one in the clerical autocratic Slovak state during Word War Two, one immediately after World War Two, two during the communist period, an amended one after the revolution in 1989, and the present one. We can also add to these constitutions some documents which had a direct influence on the later constitutions . These are declarations about the Slovak nation from the nineteenth century and threaties on Slovak and Czech emigration before the end of World War One.

We can see that in all political systems, every political regime made his own constitution and changed or replaced it if wanted to rule in a partially different way. Under these circumstances, contitutionalism cannot mean stability in the classical sense of constitutitonalism. Every new power elite wanted to create its own constitution to strengthen its power, and recreated it if the given elite wanted to strenghten its power in a somewhat different way. Stability in this sense means only the stabilization of the positions of a given ruling elite.

If the present Slovak constitution was made without the support of the majority of the people, without a consensus of the elite of the country, and by the anti revolutionary groups of the elite, we must explain the contradiction that the present Slovak constitution is interpreted as a more or less democratic one, despite the anti-democratic goals of its founding fathers. Why is it defended mainly by those who didn't support it originally, and why is it amended by its founding fathers?

We could find the answer to the first question in the mentioned difference. We can also document this claim with several statements by the prime minister Vladimir Meciar, who has explained many times that the present structure of division of power and human rights was created to achieve international recognition for the newly established country. Probably the most important document containing this issue is his secret speech made in "Zlata Idka" at a secret session of the executive commitee of his party.

To summarize the claim, in case of a newly emerging small country the character of the constitution depends not only on the will of the people or the constitutional inheritance, but also on the expectations or supposed expectations of countries on which the given country is strongly dependent. This rule is valid also in the case that the ruling elite, or the majority of the people, don't want to accept the constitutional rules necessary to recognize because of dependency. In other words, if the material constitution of the country is substantially different from the formal adopted one. This situation of course holds a hidden tension between the material and formal constitution. If the country's dependence is weakened, for example, it is still recognized and achieves enough guarantees of its existence, the hidden tension will turn into an open one. That is the case in the present Slovakia.

The answer to the second question follows from the first one. A constitution made under the supposed pressure of states whose political system was the goal of the Slovak opposition, is much more acceptable t them than an amended or totally changed one by the original constitution makers. Therefore its defense means the defense of their own original goals in a changed situation.

And now about the public. In the case of dependence the argumentation during the struggle about the character of the constitution is also different from the discussions in the USA and France in one important sense. There aren't mainly discussed the most important constitutional questions publicly but the supposed consequences of the new constitution.. It is supposed, that the majority of the citizens will accept basically different constitutions supported by the same political forces. That means other issues are more important for the public as the most of the constitutional ones are, therefore the public will not punish the changing some constitutional rules, by maintaining the more important non constitutional ones. In this case the public without a sense for constitutionalism in the reality need not to be recognized by the constitution-making elite as the main source of the given constitution. Their question isn't how to achieve public recognition for the main principles of the new constitution or amendment, but how to achieve acceptation of it's supposed consequences. Therefore will be discussed mainly the consequences of constitutional changes. The public will judge the different possible consequences for the independence of the country , and the basic constitutional questions will remain unclear from him. It will not punish the declaration to change the parliamentary system to a presidential one, the recentralisation of the economical power, the limiting of the freedom of the press and the rule of law, the plans to take away the deputy status from some members of the parliament, achieving an absolute control over the state security police and using it for criminal acts against the head of the state and during this things in the some time. The public will not punish the activities for changing the political system from a basically democratic to a non-democratic one. The public opinion pools are giving the verification of this supposition.

The message

The preamble of the Constitution of the Slovak Republic:

"We, the Slovak nation, mindful of the political and cultural heritage of our forebears, and of the centuries of experience from the struggle for national existence and our own statehood , in sense of the spiritual heritage of Cyril and Methodius and the historical legacy of the Great Moravian Empire, proceeding from the natural right of nations to self-determination, together with members of national minorities and ethnic groups living on the territory of the Slovak Republic, in the interest of lasting peaceful cooperation with other democratic states, seeking the application of the democratic form of government and the guaranties of a free life and the development of spiritual culture and economic prosperity, that is, we citizens of the Slovak Republic, adopt through our representatives the following constitution: "

" in the sense of the spiritual heritage of Cyril and Metodius" is the second uneasy interpretable part of the sentence. What is the spiritual heritage of two persons from the age of the early Christianity? It could be different thighs, but concretely is no one mentioned. So we can only deduct from the next part of the sentence, which one declares the natural right of nations to self-determination, after demonstrating the existence of a protofeudal state. We can find a hidden message in this statement. Namely, that those Slovaks who don't share this cultural and spiritual heritage in the way the preamble declares it, cannot be equal al members of the state creator nation and if the don't the could be also anty national-national enemies of this state.

The following part of the sentence is declares that the Slovak nation want to realize the following parts of the preamble "with the members of the national minorities and ethnic groups living on the territory of the Slovak Republic" . This statement could have an interpretation of inclusion of national minorities as minorities into the political system and an other one, that the national minorities and ethnic groups are not the holders of the inherited national spirit which is crucial in the new state. The are only "living on the territory of the Slovak Republic" and so they couldn't be equal. Therefore they could be potentially dangerous for this state.

The following part of the preamble declares the interest of the new state to peaceful cooperation with other democracies, democratic form of government, free life and development of spiritual culture and economic prosperity. In the correlation with the pervious parts the so called "spiritual culture" is on the first place and the economic prosperity on the second. By the application of the democratic form of government and free life there are not mentioned more important preconditions of democracy. Four fifths of the preamble are dealing with the spirit of the nation and only a single sort part with democracy.

The last part of the preamble is a some kind of on the national contradictions of the preamble. It declares that "we the citizens of the Slovak Republic, adopt through our representatives the following Constitution." The implication of this statement into the preamble was undoubtedly necessary to allow modern form of citizenship in this state. The message of the preamble would be totally against modern citizenship without this part. With this part is only partially against it.

After the critic that the preamble of the constitution is basically nationalistic some of the founding fathers declared that this version is unifying the national and the civic principle. And the same persons attacked the so called "internal enemies" of the nation on the same day.

The realization

The institutional arrangement of the constitution has also two dimensions. The first is the declared one. The constitution formally divides the legislature executive and the judiciary from each other.

Of course in the parliamentary system the parliament elects the judges of the constitutional court and the government depends on the parliamentary majority. Both branches were established in the sense of goals of the government. It was supposed that if the majority of the judges will be nominated from the members and supporters of the largest governmental party, based on their loyalty the government could interpret and amend the constitution in the way he wish. An so by maintaining the formal constitution can realize a quite different material constitution based on the real informal constitution. There fore the constitutional court become relatively powerful.

The constitutional court decides on the compatibility of laws with the Constitution and with constitutional laws,

decrees issued by the Government and generally binding legal regulations issued by ministries and other central bodies of state administration with the Constitution and constitutional and other laws,

generally binding decrees issued by territorial self-administration bodies with the Constitution and laws,

generally binding legal regulations issued by local state administration bodies with the Constitution, laws, and other generally binding legal regulations,

generally binding legal regulations with international treaties promulgated in a manner established for promulgation of laws.

Article 126

The Constitutional Court decides on jurisdiction disputes among central bodies of state administration, unless the law specifies that these disputes are decided by other state body.

Article 127

The Constitutional Court complains filed against legally valid decisions of central state administration bodies, local state administration bodies, and territorial self-administration bodies violating basic rights and liberties of citizens, unless decisions on the protection of these rights and liberties are within the jurisdiction of another court.

Article 128

/1/ The Constitutional Court provides an interpretation of constitutional laws in disputed maters. The conditions will be specified in a law.

/2/ The Constitutional Court does not assume a stand on manners concerning the compatibility of draft laws and drafts of other generally binding legal regulations with the Constitution and constitutional laws.

Article 129

/1/ The Constitutional Court decides on complains against the decision to verify or not verify the mandate of a deputy of the National Council of the Slovak Republic.

/2/ The Constitutional Court decides on the constitutionality and legitimacy of elections to the National Council of the Slovak Republic and territorial self-administration bodies.

/3/ The Constitutional Court decides on complaints filed against referendum results.

/4/ The Constitutional Court decides whether the decision to disband or suspend the activity of a political party or a political movement was in harmony with constitutional or other laws.

/5/ The Constitutional Court decides on high treason charges filed by the National Council of the Slovak Republic against the president of the Slovak Republic.

The same supposition was made by the establishing of the competence's of the president of the state. The head of the state could be by the real parliamentary power balance only a member of the strongest ruling party, so his competence's have to stabilize the positions of his political party even by the lost of the majority in the parliament.

The president is elected by the parliament by secret ballot for a period of five years. The majority of three-fifths of all deputies' votes is required for the president to be elected.

The president

receives and accredits ambassadors,

calls the constituent meeting of the National Council of the Slovak Republic,

may dissolve the National Council of the Slovak Republic if the policy statement of the Government of the Slovak Republic is not approved three times within six months after the elections. Prior to dissolving the National Council of the Slovak Republic, the president is obliged to hear the standpoint of the chairman of the National Council of the Slovak Republic. New elections will be called by the chairman of the National Council of the Slovak Republic within 30 days,

signs laws,

appoints and recalls the prime minister and other members of the Government of the Slovak Republic, entrust them with the management of ministries, and accepts their resignation. Recalls the prime minister and other members of the Government if the National Council passes a vote of non-confidence in the government or in a single member of the government,

appoints and recalls the head of central bodies and higher- level state officials in cases specified by law, appoints university professors and rectors, appoints and promotes generals,

awards distinctions, unless he empowers another body to perform this task,

grants amnesty and pardon, lowers punishments meted out by criminal courts, issues orders not to initiate or not to continue criminal proceedings, and nullified punishments,

acts as supreme commander of the armed forces,

declares martial law at the recommendation of the Government of the Slovak Republic and declares war on the basis of decision of the National Council of the Slovak Republic, if the Slovak Republic is attacked or as a result of commitments from international treaties on common defense against aggression.

declares state emergency on the basis of a constitutional law,

calls referendum,

can return to the National Council of the Slovak Republic constitutional and other laws with comments. He can do so within 15 days their approval,

presents to the National Council of the Slovak Republic reports on the state of the Slovak Republic and on important political issues, submits to it draft laws and proposals for other measures.

has the right to be present at meetings of the National Council of the Slovak Republic,

Has the right to be present at meetings of the Government of the Slovak Republic, to chair them, and to demand reports from the Government or it members.

With this powers the president cannot significantly influence the decisions of the parliament and the government. He cannot veto laws only return them to the parliament. But if the parliament passes the returned law against he is required to sign it. He cannot vote on the meetings of the Government and cannot otherwise directly influence its basic decisions.

But if we suppose an absolute loyalty of the president and the majority of the judges of the constitutional court to the prime minister the political system could be de facto recentralised with the connection of these powers. In this circumstances the president with signing all the new laws passed in the parliament would demonstrate their constitutionality. This political and morel authority would send a message to the Slovak public, which accepted the constitution making by the elite's from above.

On the other side in the political opposition would question the constitutionality of a given decision or law the constitutional court would decide similarly to the other two branches . That means amending the constitution by the prime minister would have only two real limits. The first internal one is the possibility of a new revolution. There is no other way for the opposition to stop constitutional changes. Even an electoral victory without winning a constitutional majority doesn't necessary mean a power change because the constitutional court could question the mandates of deputies of a given party. By the way the government wanted to realize this plan against the depletes of the Democratic Union in order to win a constitutional majority in the parliament.

The government could limit also the power of the local and regional authorities with the support of a loyal constitutional court, and so win a control about the next important space partially controlled by the opposition.

The constitution allows the government to control the judicial system and gives him a large space to control the economy in the process of privatization.

The constitution doesn't anyhow limit the governmental control about the state own broadcast and TV. It allows also a exclusionary governmental decision making about giving new TV and broadcasting licenses or taking the existing licenses away. The freedom of the written press could be also strongly influenced during the privatization process.

The lonely important positions of power which couldn't be directly controlled by the government are the most influential social organizations. In this space is possible only an indirect influence through strengthening the loyal ones and weakening to opposition ones with economical massmedieval and other support or attacks.

On the other hand if the president and the majority of the judges of the constitutional court are not loyal to the prime minister these institutions would strongly limit the change of the constitutional system to an autocratic one. The president could refuse to sign all unconstitutional laws one time and return it to parliament. Of course after passing the law against in the parliament he is required to sign it, but he had demonstrated the unconstitutional goals of the government to the public. After signing the law he can initiate proceeding of the constitutional court.

He can also refuse the accreditation some ambassadors if he don't agree with the person. He could signalize with it the wrong way of policy of external affairs and the usability of the given person.

But what is more important the president as the supreme commander of the armed forces has the right to get all police information's.

He can also present to the National Council and that means to the whole public reports on the state on important political issues. Therefore he can take official warnings about centralization of power. Of course it works only in case of sufficient level of constitutional culture of the public.

The constitutional court could be a much higher obstacle of changing the material constitution and of amending the formal one as the president. It could not only decide on the compatibility of laws with the constitution but also on the different decisions of the government, state administration bodies, local authorities etc. But the constitutional court could also not limit the governmental control of the media the state administration and important positions of the judiciary.

The failure of the plan of informal connection of all three branches and the president to one centrally directed power structure with maintaining the formal division of power has probably more than one reason. The fear of the president and more judges of the constitutional court from the prime minister in they in the case of real change of the constitution will loose a lot from their power and so also their political weight is one of the reasons.

They recognized early that there isn't a cooperation with them but giving orders to them which they have to follow.

Secondly they recognized that they will be equally responsible for the consequences of a political system change without having any real control about the changed new political system.

And thirdly there was a pressure from the side of the opposition and from the member countries of the European Union and NATO addressed personally to them.

And fourthly they could be also personal problems between the prime minister on the one side and the president and the

The human rights

The main difference of the human rights chapter to the same chapter of the previous constitution is the formulation of the rights of national minorities. In the sense of the second interpretation of the preamble after list of the minority rights is added the following passage:

"The enactment of the rights of citizens belonging to national minorities and ethnic groups that are guaranteed in this Constitution must not be conductive to jeopardizing the sovereignty and territorial integrity of the Slovak Republic or to discrimination against other inhabitants."

We cannot find a similar passage about the members of the majority nation. Therefore only the realizing of the minority rights could be dangerous for the state, the realizing of the rights of the national majority cannot be.

This passage makes a possible danger for the unity of the state from all minority activities of realization their rights because the text allows this interpretation with leaving a foggy identification of the legal fact.

Conclusions

The main conclusion is that there is a constitutional moment in the present Slovakia. And that not only because of a revolution and regime change similarly to the other countries the V-4 but also because of the main cleavage in the Slovak political field system-parties and any-system parties from the point of view of liberal democracy. The constitutional moment will remain as long as this cleavage will remain the main division of the political field.

Secondly the present Slovakia have significant constitutional differences not only to the countries of the highly developed constitutional culture but also to the other three counties of the V-4.

Therefore the constitutional development in the near future depends on one side from the changes in the constitutional culture of the public or with other words from the effectively of the public policy in case constitutionalism. On the other side it depends on the political and economical pressure of the countries with developed constitutional culture. That was in the whole modern Slovak history recognized by the majority of the Slovak elite.

Public policy

From the point of view of public policy the basic question is how to make a public issue from the main questions of constitutionalism in the present Slovakia. The present situation seems to be suitable for it, because of open attacks on the present constitution of the country. A Slovak version of Federalist Papers would be not only necessary, but also possible in the present. The focusing attention of the public on relatively abstract issues of constitutionalism for a long time /The American discussion about constitution needed several years/ has of course some conditions. The most important are:

1. An agreement of the experts of the country to discuss the topic

2. The involvement of experts from countries with developed culture of constitutionalism

3. An agreement at least the opposition parties to support the discussion

4. The support at least the opposition press

5. And last but not least the support of foundations to the realization of this program.

These conditions could be fulfilled. The present political divisions and dangers increase the interests of every political stream and civic initiative to make more clear the basic values and political structure of the democracy in Slovakia. There interests will of course remain different also inside of the opposition groups. But the moment of making public the issues of constitutionalism is there. a The stake is if the present material constitution will became a formal one or the present formal constitution will step by step change the material one. This moment could be used, but could be also missed.