By: Gal Kovač (Nova24tv.si)
After yesterday’s constitutional-political crime, the first sober assessments of the situation are emerging. The political authority has subjugated the judiciary. The judiciary has abandoned the rule of law and has become nothing more than an extended arm of the authority. Similar to the pre-independence period when, following Ljubo Bavcon, the law existed as a lever for preserving the power of the working class. Well, the current authority has long since abandoned the working class, and today it is all about sinecures. One of the most important among them is the public broadcaster (RTV), which the current authority has subordinated by introducing an amendment to the RTV Act, simultaneously disregarding the lawfully appointed management of RTV, and unlawfully shortening their mandates. The Constitutional Court still maintains that there is something seriously wrong with the law.
Following the decision of the Constitutional Court, various comments have emerged in the public sphere, ranging from spiteful and revengeful to attempts at rationalising the court’s unreasonable decision. One such attempt came from Pavel Gantar, a former politician from the collapsed LDS party, who suggested that the Constitutional Court, because it is unable to rule on the constitutionality of a highly likely unconstitutional law, should allow its validity.
He wrote on the internet, “The decision of the Constitutional Court is the only possible one: if the Constitutional Court is unable to decide on the (un)constitutionality of a law, it must allow its validity.” Boris Tomašič, the host of “Kdo vam laže” (“Who Lies to You”), responded to his statement by explaining through a series of logical statements that such reasoning is actually impossible. In the case of a potential unconstitutionality of a law, the law that regulated the field before the potentially unconstitutional law was adopted should remain in effect.
Boris Tomašič wrote, “The state before the new law was certainly not unconstitutional. According to the opinion of 5 constitutional judges, the new law may be unconstitutional. If the judges are incapable of deciding, it is certainly better for the law that is definitely not unconstitutional to remain in effect. The reason for lifting the suspension should have constitutional and legal arguments. Incapacity to decide is certainly not one. In fact, this is a foolish argument.”
He further stated that it is necessary to find out the actual motives of the constitutional judges Accetto, Knez, and Svetlič, “who enabled this decision harmful to democracy.” Let’s recall that after the President of the Programming Council of RTV, Dr Peter Gregorčič, initiated a review of the constitutionality of the law, the Constitutional Court suspended its implementation. This was followed by a series of highly unusual events, such as the visit of European Commissioner Vera Jourova, a staunch ally of the Slovenian left, as well as direct calls from the Prime Minister for the Court to decide in favour of his controversial amendment. Subsequently, rumours started circulating that the Court might have annulled its own resolution. A series of constitutional law experts have commented on this matter.
“To change the decision on the constitutional provision is not regulated anywhere, neither in the law nor in the rules of procedure. If it is not provided for in the rules of procedure or the law, one would say that perhaps only established constitutional case law could enable it,” commented Dr Jambrek for Dnevnik. Supreme Court Judge Jan Zobec explained that the applicants would be deprived of legal protection if the suspension were lifted: “Their position would be irreversibly worsened, and their mandates would instantly and irrevocably cease. They would be deprived of judicial protection. This would be unheard of – for the Constitutional Court to close its doors to the applicants who have no other judicial protection except for the exclusive initiative. It would set a precedent, and the matter would end up at the ECHR.”
Former judge at the European Court of Human Rights, Boštjan Marija Zupančič, for example, explains that revoking the suspension order of the new law is logically unsustainable: “Interim measures have a simple purpose in all courts, which is to freeze the situation during the consideration of the main issue (in this case, the constitutionality of the law). The suspension order logically had to be adopted at that time because there was a risk of irreparable consequences. Changing or revoking the decision on temporary suspension would be logical and permissible if the risk of serious irreversible consequences had ceased in the meantime. If it has not ceased, it is illogical to suddenly change or revoke the suspension order…”
Significantly, constitutional lawyer Dr Miro Cerar, to whom the President of the Constitutional Court helped write the party’s programme, had already anticipated an unconvincing explanation from the Constitutional Court for its decision prior to yesterday’s ruling. He stated, “I am afraid we cannot expect a truly convincing justification because the main reason for this situation is evidently some internal incapacity, deadlock, or impasse, which certainly cannot be a persuasive reason for such a change of stance as now hinted at as a possibility.” With the statement from the former Prime Minister, we come to the very argumentation offered by the Constitutional Court yesterday.
Self-dissolution of the Constitutional Court?
In its argumentation, the Constitutional Court first summarised the events of the past days and then provided an explanation for why it ultimately decided to revoke the suspension order. The reason? The Constitutional Court cannot make a substantive decision on this matter, nor is it likely to be able to decide if there is a change in the composition of the court. However, as it deems it necessary to decide as soon as possible, it allowed for the implementation of the potentially constitutionally questionable amendment to the law. Investigative journalist Bojan Požar commented on the explanation by stating, “Incredible, but true, they dared to write this in the ruling: that in this composition, the Constitutional Court is incapable of making a substantive decision on this matter. It is unbelievable because this de facto means self-dissolution of the Constitutional Court.”
The argument put forward by the Constitutional Court, that a quick decision needs to be made, actually reveals that it has accepted an absurd argument from the authorities and their activist extensions regarding the “unsustainable state of affairs at RTV,” commented Zupančič, who wrote, “However, courts exist to make decisions; there is no Roman law non liquate. Courts must decide one way or another, and it is normal for judicial mills to grind slowly.” He then continued that judges cannot excuse themselves by saying, “Oh, we are not capable and competent to decide on this…
Police investigation?
The story of how the decision to revoke the suspension order was made is peculiar, possibly even with unlawful undertones. The editor-in-chief of Siol, on his profile, wrote down information that was provided to him by sources. “Judges Jaklič, Šorli, and Svetlič allegedly stood up together and left the courtroom before the vote. However, it was apparently agreed upon that Svetlič would pretend to leave only to return later and ensure the quorum. There are rumours that Judge Svetlič was a target of blackmail before this. He was chosen as the weak link due to his past.” Mayer then adds an article from Odlazek’s Reporter, which describes some of Svetlič’s past positions. The Constitutional Court immediately dispatched the decision before Judges Jaklič and Šorli had a chance to rectify the “prearranged scenario”.
Mayer suggests that if the allegations from two unrelated sources, from which he received the information, are true, then the police should investigate the extortion of Jaklič.
