About constitutional democracy in Slovenia and how three law professors feared without a cause

By: Peter Jambrek

Three professors of constitutional law, Samo Bardutzky, Bojan Bugarič, and Saša Zagorc (hereinafter “BBZ”), raised an issue of hard constitutional hardball, you could also say hard and uncompromising constitutional game, disruptive moves, illiberal democracy, autocratic conceptions, political transitions, and some other elevated aspects of comprehensive changes in Slovenia in an article “Slovenian Constitutional Hardball” published in Verfassungsblog on April 1^st, 2021.

I must say from the beginning that I find the BBZ’s essay encouraging and useful to the educated and interested reader. I thank the colleagues of my former Alma Mater, Faculty of Law, University of Ljubljana, where I spent four decades, for an open and direct presentation of their mostly political and properly personalised hopes and fears about the origin and direction of the situation and development of the Slovenian national state. The article itself, at least in my opinion, is not scientifically relevant for sociological research or for a broader understanding of empirical social science (according to its methodological and theoretical aspects, my academic path was focused on sociology from 1965 to 1990), nor for Slovene and European constitutional law (my judicial and academic career from 1990 to the present). However, it has some interesting connections with political psychology, such as those studied by Lloyd Etheredge (1979) or Nicolo Macciavelli (1532). In my opinion, and in a positive sense, this is a personal testimony that defends the views of the Slovene post-communist left from the point of view of the current Slovene opposition, which informally presents itself as KUL, i.e. the Coalition of the Constitutional Arc. I deliberately use the term “post-communist” to denote the difference between the Western European left of the Socialists, Social Democrats, the center-left, the Liberals and the far left on the one hand, and the “left” as we know it in Slovenia on the other hand.

The sociological content of the Slovene post-communist left can be better understood if we consider that it is a bunch of conservative, even reactionary parties that represent (not necessarily their voters) the upper and middle bureaucratic social classes, which very effectively appropriate, exploit, and destroy the surpluses created by the Slovene working and entrepreneurial classes. They thrive on this because of business-administrative incompetence, with the tools of political corruption, and on the basis of monopolies that impede competition and meritocracy. However, I myself do not suggest replacing the terms, so that in the Slovenian context we would label the right as the left and the left as the right. This would be conceptually too demanding for most readers accustomed to using common labels in the European West.

Here a fleeting legal-sociological note is appropriate: Communist Slovenia from 1945 to 1990 was not a classless society as it was officially declared. It was vertically stratified, which cannot surprise a student of Pitirim Sorokin, but I can more or less agree with the findings of Milovan Đilas published in his book The New Class, in accordance with the study of The Power Elite by C. Wright Mills. Irrespective of this then known and current research, we wrote a new Slovenian constitution in Slovenia from 1987 to the end of 1991, which we must without a doubt consider modern and liberal. On its foundations, we even formed a new legal order, which we tried to protect with the robust powers of the Constitutional Court. The emerging normative system actually transformed from its totalitarian predecessor into a constitutional democracy based on Western European models.

So far so good. However – those occupied with the construction of the constitutional foundations of the Slovenian state have forgotten, neglected, or naively expected that the constitutional orientation will be followed by the class structure, economic institutions, and sets of state bureaucracy. Well, it was not. Thirty years after the liberal constitutional revolution, all major subsystems of the state remained virtually the same. Most of the time, they have changed precisely so that nothing would really change. Political parties changed names and programmes, public discourse on constitutional ideology changed from Marxist to liberal, and socialist working self-management flourished into a pseudo-competitive, i.e. closed system of monopolies in the economy and public services – concubines of the state that remained their (co-)owner and supervisor.

With a delay and after thirty years, we now finally hope to face the unresolved issue of the disrupted systemic balance, the disequilibrium that also prevails at the national level. The main systemic stress was, of course, created by the democratic and constitutional revolution during the condensed historical time of the crucial two years – 1990 and 1991, and in the next few years. All further changes towards European normalcy have taken place with little deliberate action and mostly at a very slow pace. This was partly influenced by the multifaceted, peaceful, consensual, and non-violent founding revolution, the new European Union standards, the vitality of private small and medium-sized export-oriented companies, and changes in social stratification driven by the influx of meritocratic younger generations.

So now we are where we are: On a fragile turning point, when the dominance of the former regime’s entrenched monopolies is weakened and often unprotected, even hampered and broken. Even the informal network of the ruling elite, which replaced the power of the Central Committee of the Communist Party after 1990, has fewer and fewer tools of power with which, until recently, it comprehensively and effectively protected its survival strategies. The chains of command to central media editors, managers of state corporations, and the current network of parties in the service of political transmission seem increasingly blocked and inefficient. However, even at this point the BBZ is mistaken: The actual origins and levers of the hard constitutional game in Slovenia are located and operating from the bottom up. Destructive factors are endemic because they are driven by systemic change itself, while dismantling existing institutional monopolies with their own invisible hands of economy, demography, and social structure. The Slovene democratic center-right forces, the successors of the intellectual and political elite of 1990, which swam to the surface during the tide of the democratic spring (Slovene Spring 1987-1990), cannot help but to happily follow the path of their predecessors, who had hoped for it decades before.

After all that has just been said, I turn to the essential question: Is a hard and uncompromising constitutional game – hardball – perceptible in Slovenia as well, and if so, where is its origin, what approaches are typical for it, and what are its goals?

After the then Prime Minister Marjan Šarec gave power to Janez Janša in March 2020, the current center-right government coalition, according to the BBZ, has supposedly carried out at least five cases of hard constitutional game and appropriate destructive moves:

1. Government delay in appointing national and European public prosecutors.
2. One week of government delays in approving calls for university study programmes.
3. Dispute between the Government Office of Communication and the Slovenian Public Press Agency (STA) regarding funding.
4. Examples of the Constitutional and Court of Audit.
5. Government appointments of officials of public institutions and law enforcement agencies.

In my opinion, none of the above cases raises relevant and resolvable constitutional-judicial issues. Government actions are based on substantive law and legal powers, including public appointments. And the case of the STA is in the potential jurisdiction of regular judicial review in the event of a conflict of interest.

However, I really do not understand the accusation of the destructiveness in the case of the higher education – how should an informed, constructive and long-lasting discussion of all stakeholders in Slovenian higher education with the Prime Minister be described as a hard and uncompromising constitutional game? On the contrary, the Prime Minister raised the issue of enrolment quotas decided by his cabinet, from a bureaucratic routine to the level of a public question on how to establish a sustainable system of adapting the needs and requirements of the Slovenian economy and state to the number and study areas of university graduates within enrolment quotas financed by taxpayers’ money. After the public debate, the academic guests of the Prime Minister agreed on a quick and consensual decision on the current issue and that the discussion should be continued at future annual meetings. Otherwise, the event, which was a disturbing example of a hard constitutional game for BBZ, led to an increase in the number of publicly funded places to study at the medical faculties of the University of Ljubljana and the University of Maribor.

As far as the Constitutional Court is concerned, I do not know of any serious or severe attacks by the government on this judicial body. The only legal and legitimate way of influencing the Constitutional Court is its possible proposal to amend the Constitutional Court Act, amend the constitutional provisions on the Constitutional Court, and the general personnel proposing competence of the government coalition regarding the composition of the Constitutional Court. Of course, I have come across public criticism of professors of constitutional law due to alleged violations of the standards of constitutional law, which are supposedly becoming frequent and characteristic of the practice of the current composition of the Slovenian Constitutional Court. At this point, the BBZ refers to an expert public debate, which was also attended in person by two constitutional judges. I do not take sided myself regarding this issue and at this point, because these are professional factual and legal issues, which by their nature are outside any “hard constitutional game”. Otherwise, it is interesting to know that the court is currently heavily packed in a ratio of 7:2 in favour of the Slovenian post-communist left, which is a consequence of the appointments of previous time-dominating government sets.

It is even more difficult to understand the case of the Court of Audit, of which main contentious issue is the conflict of interests of the president of the court, due to his contractual employment with FIFA with more than a quarter of a million euros annual salary, i.e. several times his salary in Slovenia. And Fifa, has been classified as a for-profit organisation by the Luxembourg court of the EU – see the case of Laurent Piau, T-193/02, paragraphs 69-70. The same president was criticised even by the left wing, central daily newspaper Delo for abusing its position during the public presentation of the Court of Audit’s draft report and its timing disclosure in the case of the purchase of medical and protective equipment. Otherwise, there is no need for government action in this case: the term of office of the President of the Court of Audit expired ex lege three months after a conflict of interest was not officially declared.

Among the five briefly discussed cases, the BBZ also mentions government attempts “to insert individual problematic solutions into the so-called anti-corona packages”.

The “extension of the valid accreditation of higher education institutions” was mentioned. Wrong: the extension of accreditation was not legalised, but only the extension of the restrictive measures from December 2016, while all the others, valid since 1993, remained as valid and applicable criteria or conditions for current accreditations.

The following is a discussion of the list of allegedly harsh and disruptive measures that may represent examples of the “hard constitutional game” of the Slovene post-communist left:

1. New techniques of media confrontations from March 2020 onwards, as well as propaganda and agitation of the five main Slovenian media, directed against the current center-right government. Comment: Mass and structural interference with the right to receive information by at least half of the electorate, given the estimated 80-90% control of the post-communist left over the three main daily newspapers and the two main news television channels.
2. Excessive and preferential use of propaganda techniques of character assassination, labelling, stamping, and discrediting opponents, i.e. the government, its ministers, the prime minister and others. Comment: Mass and institutional encroachment on the right to personal dignity, identity, and privacy due to disproportionate media bias (same as under point 1 above).
3. Attempts to overthrow the government immediately after its parliamentary appointment on the basis of persuasion, invitation, and lobbying of individual MPs to change their party and coalition identity. Comment: Disruptive conduct within constitutional frameworks.
4. Vote on constructive no-confidence motion to replace the government. Comment: A constitutional category on the basis of which an attempt is made to subvert the government in the pursuit of power.
5. Interpellations against ministers. Comment: A constitutional measure aimed at overthrowing the installed government.
6. Referendum initiatives. Comment: Legal acts under the supervision of the Constitutional Court.
7. Street protests. Comment: Legitimate events insofar as they respect pandemic containment measures.
8. Hateful and aggressive speech in the context of public discourse against individual public figures. Comment: Possible abuse of the right to freedom of expression, especially in cases of death threats to public office holders. Political hardball par excellence.
9. Constitutional indictment of the Prime Minister. Comment: A constitutionally compliant measure that goes beyond good parliamentary practices in the case of arbitrary and unfounded reasons.
10. Transfer of political confrontation from the “domestic field” to the level of friendly foreign media and European institutions, followed by the import of the transferred back to the domestic left-controlled media. Comment: The legal and constitutional practice of upgrading or replacing domestic techniques of mass persuasion.
11. Raising minor mistakes of center-right politicians and minimising or silencing the corrupt practices of post-communist left politicians. Comment: A specific hardball made possible by the privilege of Party-controlled mainstream media. (At this point and elsewhere in the current polemical response, I use the terms Party, as a shorter name for all political parties of the post-communist left.)
12. Attempts to restrict and violate legal and constitutional rights to education, research, and the very existence of private higher education institutions and research institutes – through measures of the left-controlled Ministry of Higher Education and Science, the Rectors’ Conference, parliamentary measures, and the Accreditation Agency (SQAA). Comment: Unconstitutional and illegal practices according to specific court-relevant circumstances.
13. Opposition to the execution of the ruling of the Constitutional Court on the financing of private primary schools. Comment: Directly unconstitutional practice bordering on a constitutional crisis.
14. The strategic policy of the post-communist left, which aims to excommunicate, politically isolate, and demonise the center-right SDS party and its president Janez Janša in order to monopolise democratic public debate by excluding one of the two main collective political players. Comment: Obviously disruptive and hard political approaches contrary to good parliamentary practice.
15. The use of the Covid 19 health pandemic and the national health crisis for repeated attacks on government measures to contain the crisis in the political interest of the Party. When a lockdown is introduced with anti-corona restrictions, the transitional left raises allegations of violation of the fundamental rights of the individual and of unconstitutional restrictions. Conversely, in response to remedial and relaxation measures, the government is blamed for ineffective management of the health crisis, with the consequent high number of deaths among those infected with the virus. Thus, the post-communist opposition is leading an allegedly win-win uncompromising and hard propaganda game on the political and constitutional floor. Comment: Directly destructive and hard political practices within the limits of constitutional democracy, under the control of voters in the next parliamentary, local and presidential elections in 2022.
16. Stigmatisation of the current Slovenian government and its Prime Minister with comparisons with the Hungarian Prime Minister Victor Orban and other allegedly illiberal, i.e. populist, anti-migration, pro-family, sovereigntist, and anti-EU leaders of some Central European EU Member States. Designation of the Slovenian center-right Prime Minister as an autocrat who destroys democracy, violates human rights and freedoms, interferes with the constitutional principles of the rule of law, division of power, etc. Comment: Stretching the techniques of mass persuasion, propaganda, and agitation beyond the boundaries of fair play in foreign policy. Replacing national interests with the monopoly interests of the Party (that is, the KUL coalition). Hard propaganda game.

The above list includes four borderline cases of possible interference with the constitutional rights of a political opponent, and five of them fall into the category of hard political game. Together, they represent nine of the sixteen potentially disruptive activities of the Slovene post-communist left in Slovenia, which are also potentially prosecuted.

So how to proceed? Should both Slovenian opposing blocs be advised to stop arguing? Of course not, they must continue their work and compete for public favour and electoral votes. However, they should, for their own good, identify themselves as partners in the same game where verbal and actual attempts to completely remove the opponent are strictly prohibited. Furthermore, a public discourse needs to be established that encourages competition for public favouritism on ideas of national priorities. Occasional cooperation between the two competing camps should not be ruled out. And why should dreams of a balanced starting position for partners in a game where cards – the media, referees, intellectual capital, and others – are shared fairly and proportionately among players not be allowed. Forget the appeal of national reconciliation, think of the future, and respect the good old family upbringing in a spirit of courtesy and justice – honesty, that embraces all ten commandments of God in a single word. I agree with the BBZ that shifting the blame to another is not helpful, and I add that both sides are potential victims of this kind of practice.

The BBZ’s concluding remarks on the effects of the current government’s actions in the light of the 2022 parliamentary, local, and presidential elections are rather pessimistic. According to them, the moves of the current center-right coalition in the coming election year, regardless of whether that coalition wins or loses, will have a devastating effect over the next few years. During this time, however, independent institutions will allegedly be discredited and weakened, and in the worst case, autocratic legalism was said to prevail. Translated into the polemical narrative of the current author, the BBZ fears that the continued dominance of the post-communist left will be threatened in most areas of society. They are probably aware that the current “dominance in all areas” would, as they say, bring an end to the transition if the KUL were left without a clear monopoly on mass persuasion, without control over ombudsmen (such as courts and banks), and increase in freedom of productive forces in the economy and services. The house of cards of the heirs of socialism, their system of social positions, political status and economic privileges, is therefore supposed to collapse. We can agree on what has just been said, only the jargon is different: the BBZ calls this the Judgment Day of autocratic legalism, and I myself understand the present forecast as the beginning of democratic normalcy.

That polemics and disputes such as the current one are possible, and that different forecasts of national systemic changes are about as realistic, is in fact proof of a functioning Slovenian constitutional democracy. The story and conclusions of the BBZ, although unprovable on the basis of the proposed conceptual apparatus, are welcome, at least because they reveal and expose the fears and hopes of the Slovene post-communist left, which is losing its breath. Its disappearing part will, hopefully, leave behind at least the current genuine left, liberal, or right wing elements so that they can develop freely, free from transitional or post-communist burdens. The famous party avant-garde hatred of domestic and foreign class enemies, which was placed in the cradle of the Slovene post-communist left, represents one of the heaviest burdens on the supposed path to democratic normalcy – for the Party’s heirs, then the party of democratic renewal, and for KUL as their final transformation. Instead of avant-garde hatred as a rationalisation to achieve the ultimate goal of the “Party in Power”, we should all first be interested in concrete national programmes.

Let me conclude by acknowledging the personal fascination with the forma mentis of the oldest and once only Department of Constitutional Law in the country, which I have witnessed for the last sixty years or more: Nothing has changed, believe it or not.

Dr Peter Jambrek is a lecturer at the European Law Faculty of the New University, a former Minister of the Interior, and a former constitutional judge.