By: Dr Matevž Tomšič
The ruling coalition has recently submitted a legislative package to parliament under which a clean criminal record would become a requirement for holding any elected office, both at the national and local level. This is an extension of the youth wing of the largest governing party’s campaign, tellingly titled “A criminal should not be a politician.” In this way, they aim to introduce greater political hygiene, which is expected to consequently strengthen public trust in the institutions of the system.
This is a move that seems appealing and at first glance justified. Criminals really do not belong in politics, do they? But that is only at first glance. As is often the case, the devil is in the details. Behind the lofty words lie intentions that are problematic from the perspective of democracy, since they infringe upon one of its main postulates – the freedom of electoral choice.
The first problem is of a principled nature. Democracy is based on universal suffrage – both active and passive. Put simply, this means the right to vote and to be elected. The latter implies that every legally competent citizen can run for office under equal conditions. Sometimes additional requirements are prescribed for certain functions, such as an age limit. But in principle, access to all political positions is open to everyone regardless of their personal circumstances. Some countries do recognise the institution of a ban on holding office as an accompanying sanction for perpetrators of certain crimes. Yet such a sanction is time‑limited, usually to a period of a few years.
We may ask whether someone who once – say in early youth – committed a (possibly relatively minor) offense, for which they were sentenced to prison, should be deprived of the possibility to run for election. The question of whether someone is suitable for a position must be decided by the voters, not by the state pre‑emptively excluding certain candidates. If people elect someone with the burden of a criminal record, we can conclude that they judged the person to have changed and redeemed themselves for the acts they committed.
It is especially dangerous to introduce such “transparency” in environments with weak democratic traditions, where institutions of the rule of law are not independent but subject to ruling politics and other centres of power. There, the clean‑record requirement can quickly turn into a tool for eliminating political opponents. Even in established democracies such as France, convictions of certain political figures – François Fillon, Marine Le Pen, Nicolas Sarkozy – have been suspected of political bias. (Is it really a coincidence that all were from the right side of the political spectrum?) In autocratic regimes that nevertheless hold elections to appear legitimate, such as Russia and Venezuela, abuses of law and justice to deal with the opposition, by preventing its most important representatives from participating in elections, are among the most common practices.
In today’s Slovenia one cannot speak of an independent judiciary. After independence it failed to sever ties with the former communist regime, when it was one of the main instruments for persecuting critics of the social order. People who had demonstrably violated human rights in the past were appointed to the highest positions. There are many examples of biased conduct by judicial authorities. The pinnacle of political instrumentalization was the ruling in the Patria case, where the court sent former Prime Minister Janez Janša and co‑defendants to prison on the basis of non‑existent evidence. True, the Constitutional Court annulled this, but the judges who had clearly abused the law suffered no consequences. Therefore there is always the danger that such excesses will occur again – that the left, which controls the judiciary, will use it to eliminate its rivals.