By: Sara Bertoncelj
The legal opinion states that the right to a referendum in connection with the Act on the Provision of Funds for Investments in the Slovenian Armed Forces does not exist. Namely, the act meets all the demands for a constitutionally permissible ban on the referendum. The amended constitutional regulation envisages four legal areas or laws, on which a referendum cannot be called, and the Act on the Provision of Funds for Investments in the Slovenian Armed Forces falls under the first category, which states that a referendum on acts on emergency measures to ensure state defence and security or to eliminate the consequences of natural disasters, is not allowed.
On Friday, the National Assembly of the Republic of Slovenia adopted a proposal for the Act on the Provision of Funds for Investments in the Slovenian Armed Forces in the years 2021 to 2026 (“Zakon o zagotavljanju sredstev za investicije v Slovenski vojski v letih 2021 do 2026” – referred to as ZZSISV). The opposition parties have previously already opposed the adoption of the act, citing misleading reasons for it. To this end, the SD party even launched a campaign, part of which was a drawing with the inscription “780 million for tanks? No, thanks!” A tank was, of course, drawn next to the inscription, despite the fact that the new act does not provide for the purchase of a single tank. “The Act on the Provision of Funds for Investments in the Slovenian Armed Forces does not provide for the purchase of tanks, but for the purchase of modern vehicles for the transport of units, with a high level of protection, that will protect the lives of soldiers,” the Ministry of Defence replied to the SD party. In reality, only one percent of the GDP will be spent on the most necessary investments, namely, for appropriate equipment, the decent construction of barracks, purchase of transport helicopters, a transport aircraft and armoured vehicles, which will contribute to greater security and survival of Slovenian soldiers on missions.
The opposition parties are also well aware of the rules of the game regarding the referendums, so it is not entirely clear why the Levica party set up a stand on the Adamič-Lundrovo nabrežje yesterday, to collect signatures for the subsequent legislative referendum. “It is outrageous for the government to purchase weapons for 780 million euros in the midst of the biggest crisis,” said the coordinator of the Levica party, Luka Mesec. Well, what is even more outrageous, is misleading the public and deliberately attracting crowds of people during an epidemic, when this is not even allowed.
The referendum initiative does not stand a chance before the Constitutional Court
Dejan Levanič from the SD party has also announced that they had started collecting signatures, and said that, as always, people were calling them from all over Slovenia. However, he probably forgot to tell those calling that the Referendum and Popular Initiative Act clearly stipulates in the fifth paragraph of Article 21.a, that any voter may file a request for an assessment of the constitutionality of a law, due to a violation of the second paragraph of Article 90 of the Constitution. Every voter, and not the initiator of a referendum, is actively legitimised before the Constitutional Court, in order to initiate the proceedings. In the case of a ban of the referendums on urgent laws from the first point of the second paragraph of Article 90 of the Constitution, which is procedurally regulated by Article 21.a of the Referendum and Popular Initiative Act, the Constitutional Court cannot assess the constitutionality of a decision on the inadmissibility of a referendum. In other words, the signatures are completely unnecessary, and both the Levica party, as well as the SD party, are very much aware of this. “It is irresponsible to use lies to try to collect some signatures, and above all, to promise people something that will not happen,” Tonin commented on the situation, stressing: “There will be no referendum.”
Despite the fact that the Social Democrats have been caught in a lie, they are sticking with their story – as they usually do. They are continuing to try and convince the public that the government will spend 780 million euros on weapons, instead of on healthcare, jobs and care for the elderly. They also conveniently forget to add that the investments are spread over the next six years. The opposition is talking about the situation in a way that makes it seem as if all of the money will be taken out of the budget tomorrow, and the healthcare system will run out of money right now, in the middle of the health crisis, at the expense of “weapons.” We have already reported on the fact that the Minister of Defence Matej Tonin told our media outlet that this is a very low political campaign, with which the left wants to upset people and bring more ire into society, especially with their demagogic depictions of how there is no money for one thing, but there is money for another.
Calling a subsequent referendum would be constitutionally inadmissible
Matej Tonin pointed out that calling a subsequent referendum on the Act on the Provision of Funds for Investments in the Slovenian Armed Forces in the years 2021 to 2026 would be constitutionally inadmissible. The Ministry of Defence explained: “As part of the debate on the act, the National Assembly rejected the proposal of the Levica party to call a consultative referendum on this act, at the end of October. The mentioned party also announced the possibility of initiating procedures for calling a subsequent legislative referendum. On the 23rd of September this year, the Government of the Republic of Slovenia proposed the adoption of a resolution, stating that calling a subsequent legislative referendum on the issue of investments and the modernisation of the Slovenian Armed Forces would be constitutionally inadmissible, to the National Assembly. “
The legal opinion on the inadmissibility of calling a legislative referendum
The Ministry of Defence addressed a request to the Constitutional Law Institute, to prepare a legal opinion, which would answer the question of whether a referendum on the said act is admissible, in accordance with the Constitution of the Republic of Slovenia. The legal opinion was prepared by professor Matej Avbelj, Ph.D., and professor Igor Kaučič, Ph.D., and consists of five parts. The second part examines the procedural possibilities of a constitutionally permissible ban on a referendum, and the third part performs a substantive analysis that answers the legal question regarding the above legal premise, which determines the substantive legal conditions for a constitutionally permissible ban on a referendum. You can view the entire document or the explanation of the opinion at this link.
The amended constitutional regulation envisages four legal areas or laws on which a referendum may not be called. The second paragraph of Article 90 of the Constitution stipulates that a referendum may not be called: First, on laws on urgent measures to ensure the defence of the state, the security or the elimination of the consequences of natural disasters; secondly, on the laws on taxes, customs and other obligatory duties, and on the law, adopted for the implementation of the state budget; thirdly, on laws ratifying international treaties, and fourthly, on laws eliminating unconstitutionality in the field of human rights and fundamental freedoms or other unconstitutionality. The Act on the Provision of Funds for Investments in the Slovenian Armed Forces in the years 2021 to 2026 regulates financial issues in terms of content, but according to the goal and purpose it implements, it is a law on emergency measures to ensure the defence and security of the state. Therefore, this is an act which, in accordance with the first point of the second paragraph of Article 90 of the Constitution, is exempt from referendum decision-making. The procedure for assessing the admissibility of a referendum is now being carried out by the National Assembly of the Republic of Slovenia and the Constitutional Court of the Republic of Slovenia. The National Assembly, which is responsible for calling a referendum, must first assess whether a legislative referendum is constitutionally admissible at all (preliminary assessment of the admissibility of a referendum). It must be borne in mind that the National Assembly can only call a referendum on a law if it is convinced of its constitutional admissibility. In the case of a ban on a referendum on urgent laws from the first point of the second paragraph of Article 90 of the Constitution, which is procedurally regulated by Article 21.a of the Referendum and Popular Initiative Act, the legal protection of a referendum is regulated differently, as the Constitutional Court cannot assess the constitutionality of a decision on inadmissibility. It must be borne in mind that, if the constitutional conditions are met, the right to a referendum on these laws does not exist at all. The decision on the inadmissibility of a referendum is therefore published in the Official Gazette together with the law, so a referendum on it is no longer possible. If the National Assembly decides not to call a referendum, the procedure in the National Assembly is finished.
What follows from the conclusion of the legal opinion of both eminent constitutional law experts, is that all three conditions from the first point of the second paragraph of Article 90 of the Constitution of the Republic of Slovenia are met in the case of the Act on the Provision of Funds for Investments in the Slovenian Armed Forces in the years 2021 to 2026, due to which a referendum against the said act is not admissible. These three conditions are:
- a legal regulation must be a law in its form;
- the law must contain necessary measures to ensure certain constitutional values;
- the Constitutional values are: defence of the state, security and elimination of the consequences of natural disasters.
The legal experts believe that it is immediately clear that the first and third conditions are met, as this is an act in the field of the defence and security system of the Republic of Slovenia. With regard to the second condition, they examined whether the legislative measures are necessary, and therefore essential and crucial in their content, meaning that without them, the defence and security cannot be satisfactorily ensured, and if their postponement or non-adoption of the act, in the event of a successful referendum, would cause serious obstruction of the functioning of the state, and the performance of its basic functions, which could lead to the occurrence of consequences that are difficult to correct or could jeopardise the implementation of other constitutional provisions.
The constitutional lawyers believe that the Act on the Provision of Funds for Investments in the Slovenian Armed Forces in the years 2021 to 2026 meets all the conditions for a constitutionally permissible ban on a referendum, including conditions related to the substantive and temporal component of the necessity of statutory measures that are reasonable, and so the National Assembly may constitutionally prohibit the referendum on this act, on the basis of the first point of the second paragraph of Article 90 of the Constitution.
The Constitutional Court would also prohibit such a referendum, which would represent the continuing of maintaining the status quo
The resolution of the legal opinion of the two constitutional lawyers also states that, since the right to a referendum in connection with this law does not exist at all when these conditions are met, there is no need to analyse whether this ban of the referendum would withstand a possible constitutional weighing of competing values under Article 15 of the Constitution. However, given all the circumstances of the case, and given the fact that the situation in the Slovenian Armed Forces has been quite bad for a long time now, which is contrary to both the Slovenian Constitution and the accepted international legal obligations, it can be concluded that the Constitutional Court would also prohibit such a referendum, which would represent the continuing of maintaining the status quo, also on the basis of its case law within the framework of Article 15 of the Constitution, with weighing the competing constitutional values, even in the absence of an explicit legal basis for prohibiting a referendum in the first point of the second paragraph of Article 90 of the Constitution.