The Constitutional Court of the Republic of Slovenia rejected the initiative of the mayor of Radenci, Roman Leljak, to assess the referendum question on the totalitarian content, which will lead to a referendum on Titova cesta in Radenci. The majority of the constitutional judges based their decision to reject the initiative on the grounds that there was a lack of legal interest. Three constitutional judges, Dunja Jadek Pensa, Marko Šorli and Klemen Jaklič were against the referendum, and the latter in his dissenting opinion, which is also signed by Šorli, categorically rejects the majority’s argument and claims that the initiator’s legal interest is indisputable.
After the Constitutional Court overwhelmingly rejected the initiative of the mayor of Radenci, Roman Leljak, to assess the content of the referendum question, which he claimed was totalitarian, saying that he had not shown legal interest, constitutional judge Ddr. Klemen Jaklič challenges the justification of the majority in a separate opinion.
Jaklič begins his dissenting separate opinion with a description of Leljak’s initiative and says that the initiator is challenging the Act on calling an advisory referendum on the renaming of Titova cesta in Radenci. He claims that this is an issue about which citizens should not decide on in a referendum, as naming a street after Tito and confirming such a name are unconstitutionally infringing on human rights and fundamental freedoms and are inconsistent with the constitutional order of a democratic state. He continues with the decision of the court or the majority of the constitutional judges, which, with the exception of three judges, rejected the initiative because it did not show legal interest. The initiator emphasized that he was filing the initiative as a citizen and a voter, not as the mayor.
The legal interest is undeniable
Constitutional Judge Jaklič emphasizes that he does not agree with the decision of the majority and that, given what has been explained, it is obvious that the initiator has a legal interest. Such a referendum means that if he wants to actively influence the formation of the political will of the majority of citizens regarding the issue of renaming or preserving Titova cesta, he will have to participate in the referendum. It is also a publicly known fact that the initiator has clearly expressed views on this issue. It can also be deduced from this that if a referendum takes place and he wants to influence the decision himself, he will have to actively speak out on this issue in such a referendum. And even if he did not attend it himself and, for example, boycott it, the decision of the political majority in the referendum on this issue could have consequences for him as a citizen.
About the advisory referendum
Jaklič believes that, although it is not legally formally binding, it nevertheless represents an important indication of the political will of the citizens and as such is not an insignificant direction to the Municipal Council and local authorities about the will of the local citizens or voters. A local political authority that chooses not to abide by the decision of the majority of citizens takes on the risk that it may not be elected in the next election. Advisory referendum is intended for precisely this kind of political influence and it is indisputable that such referendum has its influence and its power. Otherwise, it would make no sense at all for the legislature to provide for it in the law.
Taking all the above facts into account, as the constitutional judges should, Jaklič writes that it is completely indisputable that every citizen, including Leljak, has a direct legal interest in filing an initiative to challenge such a referendum on the grounds that its content could be contrary to the constitution. There is no other legal forum that can ban a referendum if its content and issue are unconstitutional. So how is it possible to write, as even the majority of judges did on the assembly line, that the initiator has no direct legal interest? Any serious answer, Jaklič adds somewhat cynically, will be sought in vain.
The Constitutional Court has not yet ruled in such a case
He further disputes the statement in the reasoning of the decision that the Constitutional Court has already ruled on such a case once in the past, as it says that in case no. U-I-133/09 – which the majority refers to – was an advisory referendum on the co-incineration of waste at the Lafarge cement plant, d. d., Trbovlje. At that time, the Constitutional Court justifiably rejected Lafarge, which opposed the referendum “solely” on the grounds that it allegedly interfered with its good name in the market and in the public interest. The company could only challenge a subsequent legal act that might follow the referendum will and might interfere with its rights and/or obligations. However, if the company considered that the referendum had already encroached on its good name, it had the opportunity to pursue such an intervention and its possible comprehensive remediation, including any lost profits, in a regular civil court, which means that the initiative at the Constitutional Court, had no direct legal interest.
This is exactly the opposite of the referendum on Titova cesta, which we are deciding on today. In today’s case, the call for a referendum with an unconstitutional content is the one that represents an interference, against which the initiator has no other legal remedy. Thus, it cannot protect its rights and possible unconstitutional use of public authority (the caller of a referendum with an unconstitutional issue is the Municipal Council) and public institutes (advisory referendum on constitutionally prohibited content) other than before the Constitutional Court. The immediacy of his legal interest is undeniable. Most turn a blind eye here; Of course, not because – Jaklič is again a bit cynical – because he is the “wrong” complainant and this is the “wrong” content of the initiative, which would be good to get off the table as quickly as possible to avoid problems and substantive discussions.
The Constitutional Court should assess the content
Jaklič concludes his dissenting opinion with the conclusion that a direct legal interest was expressed in this case and that the substance of the initiative should be assessed. With regard to this part of the assessment, he expressed his conviction that public authority, which in this case is the Municipal Council, and public institutes, which in this case is an advisory referendum, cannot be used in a free democratic society for the purposes of glorifying totalitarian content as they represent a denial of the very essence of a free democratic society.
With the referendum confirmation of the majority of citizens in the constitutionally mandated free democratic society that some totalitarian content should be officially glorified, say a crime against humanity, or some personality that is a symbol of one of the totalitarianisms (reaffirmation of the street name is such a glorification), this same majority – knowingly or unknowingly – abolishes the otherwise constitutionally mandated regulation of this society as a free democratic society.
However, as long as the constitution of a free democratic society (and such is the Constitution of the Republic of Slovenia) is valid, this cannot be legally valid. Similarly, it would not be legally permissible or constitutionally compliant if any other forums of public authority, e.g. the celebration of Statehood Day, who officially, as an expression of public authority and in the name of that public authority, used it to glorify symbols that are inconsistent with the free democratic society or even directly opposite to it. This principle of constitutional incompatibility of the use of public authority and public forums or institutes to glorify unconstitutional content, in itself, of course, does not prevent something else: the glorification of such totalitarian symbols and personalities by private individuals, their societies and the alike. But this is something quite different from the use of public authority and its authoritarian forums and institutes to glorify such undemocratic, illiberal and inconsistent with human dignity content. The latter is incompatible with the constitutional order of a free democratic society. If it were allowed, it would represent its denial and de facto change, even through a level that is hierarchically below the constitutional level, Constitutional Judge Klemen Jaklič concludes its dissenting separate opinion.