By: Metod Berlec
Before the 30th anniversary of the independent state of the Republic of Slovenia, we spoke with one of the main authors of the first Slovenian democratic constitution and the first president of the Constitutional Court of the Republic of Slovenia, Dr Peter Jambrek.
DEMOKRACIJA: Mr. Jambrek, you are one of the authors of the famous 57th issue of Nova revija – Prispevki za slovenski nacionalni program (New magazine – Contributions to the Slovenian national program), which was published in early 1987. What prompted you to decide to publish this very special thematic issue of Nova revija?
Jambrek: The initiative was, of course, given on behalf of the editorial board by editor-in-chief Niko Grafenauer, poet, philosopher and literary critic, and managing editor Dimitrij Rupel, writer, sociologist and professor of world literature. Since the founding of the magazine in the 1980s, I have preferred to publish in Nova revija. I have published professional articles on legal and sociological research elsewhere, and Nova revija was at that time the most prestigious forum for critical discussions on broader and important public issues. The group of authors and editors of Nova revija was also personally connected to the intellectual and moral community, whose members often socialized, debated and curiously read the first concepts or already published texts by friends, their philosophical essays, literary works, critical discussions and polemics. Among other things, we were united by the contempt of the then regime and its officials and the utopian idea of a future free Slovenia. I think that there is no such liberal, free-thinking intellectual circle in Slovenia today, which surprises me and which I also regret. Otherwise, at least my decision to write an article for the national issue of Nova revija was quite simple – editor and friend Dimitrij Rupel invited me for coffee and briefly told me, in general outlines, that a special issue on the topic of the Slovenian national program was planned and that he was inviting me to write an article on this topic. We quickly agreed on the idea in very general and unresolved outlines. However, I remember that Dimitrij, in response to my comment on whether we should also write about the Slovenian state, made a serious comment – of course, also on the division of Yugoslav embassies among the new states. Thus, the elusive generality of the conversation was concretized by some detail, when we found out to our mutual joy that we actually knew exactly what it was all about.
DEMOKRACIJA: You wrote the article »The right to self-determination of the Slovenian nation« for the 57th issue of Nova revija. If I understand correctly, in it you pointed out the universality, permanence, inalienability and repeatability of the nation’s right to self-determination?
Jambrek: In fact, most of the authors in the collection each touched on the issue of self-determination in their own way. Among the sixteen authors, France Bučar and I were the only lawyers, and the editors assigned us a chapter in the proceedings entitled “On the Legal Principles of the Slovenian Nation”. Bučar wrote a discussion on the legal regulation of the position of Slovenians as a nation, and I wrote on the right to self-determination of the Slovenian nation. In writing, I relied mainly on Ernest Petrič’s books and discussions on international legal aspects of self-determination. The common thread I tried to prove throughout the text was the idea that self-determination is not only a valid and binding principle of international law, but that the Slovenian nation is a typical example of the possibility for its real, concrete and current implementation. I emphasized that the right to self-determination and secession of the nation is also regulated and recognized by the current constitutions of Yugoslavia and Slovenia, and at the same time explicitly rejected the then prevailing doctrine that the constitutional right to self-determination in Avnoj Yugoslavia was »consumed«. I referred to all possible authorities, including Kardelj, Petrič, Krek, Lenin, Wilson, etc. In conclusion, I stated that the struggle for national freedom cannot be separated from the struggle for democracy, that is, for greater influence of the people on politics – which a year later became the starting point for the next concrete program ideas on the plebiscite and constitutional independence.
DEMOKRACIJA: In the following year, you played an important role in the preparation and writing of so-called writer’s constitution, which was published as »Material for the Slovenian Constitution« in the Journal for the Critique of Science in April 1988 in Ljubljana. How was that?
Jambrek: Contributions to the Slovenian national program broke the ice. Despite official criticism and threats, they had an exceptional and uncontrollable influence on public opinion in Slovenia at the time. The idea of the national issue of Nova revija was clear, focused and penetrating: Slovenians deserve their own country, which should be democratic and European. From here, concrete programs in the fields of economics, social affairs, universities, culture and more could follow. Unfortunately, there have been no such sequels – except in the area of the Constitution. Immediately after the publication of the 57th issue of Nova revija, the first thoughts, initiatives and concepts for new legal and institutional perspectives of the national program began. The external initiative came from Belgrade, where the Yugoslav political leadership drew up a plan for the re-centralization, nationalization and bureaucratization of the federal state. Amendments to the Yugoslav constitution were intended to give greater powers to the Yugoslav bureaucracy – the party, the state, the government and the army – at the expense of the republics. In Slovenia, this Greater Serbia and party action met with strong resistance and revolt, first in the circles of academic and artistic elites – among writers, philosophers, sociologists and other intellectuals, from where the idea of a more independent, if not completely independent Slovenia began to spread rapidly among people. At the end of the 1980s, the Slovenian Spring emerged as a broad popular movement for democracy and the freedom of the nation in its own country. In this atmosphere, the first texts of concrete chapters of the new Slovenian constitution were written. The complete text was published under the title “Theses for the Slovenian Constitution” in April 1988 in the Journal for the Critique of Science. It was presented at a public tribune in Cankarjev dom.
DEMOKRACIJA: You are still proud of this constitution today. Why?
Jambrek: The writer and friend Jože Snoj insightfully compared the Theses with the yeast needed for the rising of bread, and indeed in the next few years they were the kind of yeast that gave meaning to the establishment of the Slovenian nation-state in the new framework of Western European civilization. The Theses were modeled on international human rights instruments and some current European constitutions. Even today, they are considered to be the text from which the Slovenian constitution emerged; they gave it its current conceptual structure, free-spirited spirit and emphasis on all the basic ideas of the modern state – human rights, the rule of law, the democratic legitimacy of power, sovereignty in the international arena, constitutional safeguards and others. We wrote theses for the Slovenian constitution in the belief that a free human personality must be allowed everything that the law does not explicitly forbid.
DEMOKRACIJA: In your excellent book from 2018, »The Establishment of Slovenia« (Ustanovitev Slovenije), you especially emphasize the period from 1987 to 1990. In your opinion, this is the period when the »national program of constitutional democracy of an independent state« was written …
Jambrek: In this condensed historical time, Slovenia was not only gaining independence, seceding from the federal Yugoslavia, gaining its constitutional and democratic foundations, not only liberating itself, but also establishing itself. This time − say the constitutive five years from 1987 to 1991 − was particularly privileged, elevated and creative in the sense of a complete release of democratic energies and potentials of Slovenians from the decades-old lead of the former undemocratic regime. The repressive institutes of the delegate system, various political alliances – communist, socialist, youth, trade union, bocce and others, workers’ self-government, the proletarian revolution, the avant-garde role of the working class, etc., ad nauseam, were deleted from the constitution, consciousness and vocabulary of the people. In June 1991, Slovenia actually liberated itself from the rule of a country foreign and repressive to Slovenians, from the avant-garde violence of the one and only political party, and from the economically and property-restrictive socio-proprietary economic system.
DEMOKRACIJA: You have given the next chapter in the book the title »Condensed Historical Time of Nation Self-Determination, 1990-1992«. This was the period in which you yourself actively and significantly participated in the decision for the plebiscite at the end of 1990 and in many other important events until the adoption of the first democratic Constitution of the Republic of Slovenia on 23 December 1991 …
Jambrek: Of course, the culmination of creative liberation for Slovenia was the popular vote at the end of December 1990. Slovenians had never before enjoyed such a well-designed and democratically organized implementation of the nation’s right to self-determination throughout its history. In 1945, Slovenian partisan brigades were allowed to cooperate with the Yugoslav and Soviet armies in seizing power over Slovenian territory. However, deliverance from the National Socialist and Fascist occupation forces did not lead to the national, social, economic and political liberation of the Slovenians, but only to the replacement of one foreign country – first the Kingdom of Yugoslavia, then Nazi Germany and Fascist Italy – with another, this time a communist Yugoslav state. Liberation, also in the sense of establishing the constitutional, cultural and economic system of the democratic and sovereign Republic of Slovenia, was achieved only on the basis of the first free elections, plebiscite, declaration of independence, enactment of a new constitution and international recognition in 1990, 1991 and 1992.
DEMOKRACIJA: Well, after democratization and independence and the fall of the Demos government in the spring of 1992, a period of transition began, which in a way still lasts today. In recent years, you have often pointed out that in these three decades we have often witnessed deviations from the »value center of the Slovenian nation«.
Jambrek: In the condensed historical time of the late 1980s and early 1990s, there was a hierarchy on the one hand, whose power was not democratic, and on the other, a people’s movement and a spiritual community whose view of the future was based on the values of Sloveneness, freedom and Europeanism. We remember the Slovene Spring, in the forefront of which were also personalities who, with their creativity, personal courage and intellectual honesty, together created the spiritual center of the nation, which became the decisive reason for the establishment of a sovereign Slovene state. At that time, we were faced with a world without God, supposedly to be replaced by a superman in the service of communism or Nazism. In the Slovene founding period, the nihilism of the former regime was dismantled by the Slovene national program, the constitutional treaty, the value of dignity and holiness of life, and the belief that Slovenians finally knew what to do with themselves. The center of the nation still coincides with the realm of the sacred, with the moral symbols that establish the nation and its state. In the years of the condensed historical time of the Slovenian Spring, this founding national consensus was confirmed and consolidated directly, in elections, as well as through a plebiscite, a new constitution, military successes and international recognition of the Republic of Slovenia. Thirty years ago, Slovenians and all other citizens of the Republic of Slovenia filled the bowl of sovereign Slovenia with energy and optimism. Although both would be just as urgent today as they were thirty years ago, after three decades of transition under the power and control of post-communist parties and their media and all other transmissions, Slovenia has become an empty and disintegrated state. Transitional resistance to development programs and to free initiatives in the economy and culture has had sad consequences: public health that withered; public higher education, which ranks lower and lower on international quality scales; road, rail and aviation infrastructure that has long failed to meet development needs; the economy, which is not competitive or productive. The transition has culminated in a state already exemplified by the mythological emblem of a snake biting into its own tail. However, the solution to the current problem is the same as during the Slovenian Spring: the energy and optimism of the nation’s original value center must be replenished. The blasphemy of post-communist Slovenian politics – in opposition or in power – is still in an attempt at double oblivion: first, the erasure and suppression of the memory of the unchanging essence of the previous regime − the mass crimes of murder, robbery and fraud that have been established throughout −, and second, the oblivion and devaluation of the central symbols that shaped the modern Slovenian nation during the period of national liberation.
Slovenian transition agencies – the government, media, school and others – who lost their reserves in this risky attempt at double oblivion, found themselves in an empty space, in limbo. Without an active center of values, res publica also lost its meaning. However, blasphemy has always been risky and short-sighted.
DEMOKRACIJA: Finally, in 2016, you wrote a proposal for a new European Constitution, which was later presented internationally through the so-called Ljubljana Initiative. So, how do you see the European Union in the future and thus the role of Slovenia within it?
Jambrek: The Ljubljana Initiative for a new constitutional treaty for the European Union proposes more freedom, justice and security within the Union. In conclusion, it is justified by two conditions: first, that the Union’s external borders are well regulated and effectively protected, and second, that the sovereign power of the State in a small, narrow area under the powers of the Union is exercised democratically, in accordance with the principle that the original bearer is the people, therefore, the European demos. What, then, are those »narrowed areas« or public goods which the Union is supposed to regulate at the constitutional level, either as its exclusive or as shared competences? Public goods at the Union level should be: legal and judicially regulated exchange arrangements in the single market; free movement of goods, services, people and capital; security and defense of the Union’s constitutional territory and external borders; regulation of democratic institutions and processes. The proposed regime assumes that there are fewer core competencies and that they are implemented more legitimately and efficiently than in the current system.
Biography
Peter Jambrek, born in 1940, graduated from the Faculty of Law of the University of Ljubljana and received his doctorate from the Department of Sociology at the University of Chicago (USA). He began his academic career at the Faculty of Law in Ljubljana. He has also worked as a lecturer and researcher in the United States. He was a member of the Scientific Committee of the European Union Agency for Fundamental Rights and a member of the European Commission for Democracy through Law (»Venice Commission«) from 1991 to 2008. He was also a judge (1990−1998) and President (1991−1993) of the Constitutional Court of the Republic of Slovenia and a judge of the European Court of Human Rights (1993−1998). He is a professor of constitutional law and human rights law at the Faculty of State and European Studies and at the Faculty of European Law in Slovenia. He is the author of numerous professional articles and books.
