By: Dr Vinko Gorenak
In November 2016, as a member of the National Assembly, I published an article entitled “Judge Karakaš is a victim of the arrogance of the judiciary” on this website. At that time, the Judicial Council proposed to the National Assembly Aleksandar Karakaš, a senior judge in Maribor, for the post of Supreme Judge. The judicial council was extremely arrogant in the sense that “we decide who will be the supreme judge, the task of the MPs is merely formal, to confirm our proposal”.
According to my memory, this was the second rejection of the election of a judge in the National Assembly, the first happened in 2015 with the rejection of the appointment of Anita Dolinšek as a senior judge.
What are the relationships between the judicial and legislative branches of government
Our constitutional legal system is such that the judicial branch of government (the judiciary with the Judicial Council) and the legislative branch of government (the National Assembly) are equal and independent. The courts judge all of us, including the members of parliament and the National Assembly must respect the judgments, while the National Assembly passes laws and the judiciary must implement them. At this point, simply put, there is a wall that neither one nor the other side can cross.
At the same time, the courts can intervene in the National Assembly, so that they also try MPs (the immunity of MPs is a safeguard that the National Assembly has not used for MPs for more than 20 years). At the same time, MPs appoint judges. It is therefore a matter of balancing the exercise of power, whereby one side must respect the decisions of the other and vice versa. The balance is also established in the constitution, as judges are independent in their decisions (Article 125), as are members of parliament (Article 82).
In the case of the appointment of Aleksandar Karakaš to the post of Supreme Judge, we MPs had concerns at the time also because the candidate participated in the sentencing of Franc Kangler, although he was warned of irregularities and illegalities by the current judge of the European Court of Human Rights, Dr Marko Bošnjak, then lawyer Franc Kangler, and by former constitutional judge Dr Ciril Ribičič. This was the reason why we requested additional explanations from the Judicial Council before deciding. And what did we get?
The Judicial Council wrote a real pamphlet of accusations against all MPs, with which it criticised us, Simona Kustec Lipicer from the largest coalition party SMC at the time also called it insulting towards MPs. In this pamphlet, to summarise, the MPs were told that they are the ones who decide on the appointment and evaluation of the candidature and that the task of us MPs is of a purely technical nature, that is, to press the yes button, that we have no right to even ask anything. Any other action is seen as an attack on the independence of the judiciary. But there was also “thunder” from the Judicial Association and from the mouth of Branko Masleša, President of the Supreme Court. He saw a serious constitutional crisis in the possible rejection of the appointment of Aleksandar Karakaš.
The independence of MPs in voting, which is guaranteed, as already stated in Article 82 of the constitution, was of no interest to anyone, not the Judicial Council, not the Association of Judges, and not Branko Masleša. Doing so by all those named is of course not acceptable. Their actions could be compared to an imaginary situation in which the president of the National Assembly would get a request for permission to try two or more of these MPs. Imagine what would happen if he wrote such a pamphlet criticising the judiciary and telling them that this is disrespect for the legislative branch of government, that this is an attack on the legislative branch of government and that we are on the threshold of a constitutional crisis. This is unimaginable. But this is precisely what justice has allowed itself in the opposite sense. Also, or precisely because of this, in 2016, Judge Aleksander Karakaš actually became a victim of justice and not of MPs.
And it happened. The members of the National Assembly have decided. The result of the vote was very telling, only 32 MPs approved the proposal of the Judicial Council, and as many as 36 were against it. Therefore, the candidate was not elected and this with votes against, which were contributed not only by the opposition but also by the then left-wing majority in the National Assembly.
The judicial council does not give up
But the judicial council did not give up, and neither did the candidate. In 2021, the Judicial Council approved the same proposal, proposing Aleksandar Karakaš to be the Supreme Judge. It did not work out the second time either. The candidate lacked one vote and therefore was not elected to the post of Supreme Judge.
And today, on the part of the President of the Judicial Council, Vladimir Horvat, at the Mandatory Election Commission of the National Assembly, we once again listened to the eulogy about the professionalism and suitability of senior judge Aleksandar Karakaš for the position of supreme judge. Not a word, at least in the introductory presentation, about why the candidate was already rejected in the National Assembly in 2016 and 2021. Today’s vote at the Mandate Election Commission of the National Assembly (9 votes for and 6 votes against) clearly showed that the candidate will be elected this time in the National Assembly. If that is the case, then the saying about “third time is the charm” is really true.
In conclusion
Judicial Council. All is well and good. Such an election will also be legal if it takes place, but no one questions how this judge will be able to judge independently. Already in the Kangler case, he proved that he is biased and that he judges politically and not professionally (his decisions were overturned). It is quite clear that he will act in exactly the same way as Supreme Judge in the event of his election to the National Assembly, except that his decisions will be all the more important. Let’s not be mistaken, this is also the goal of the left-wing political option, which has a majority in the current composition of the National Assembly. Judiciary as a system, with such decisions, is sinking more and more into the abyss, more precisely, it will be even more in the role of defender of the left political option.