By: Sara Bertoncelj
In addition to the fact that the Constitutional Court does not even have jurisdiction to decide on this matter, the constitutional judge Klemen Jaklič explained in his dissenting opinion that if the Decree does not contain the date when the measure expires, it does not interfere with the Gazette. The old regulation which has been published in the Gazette is simply valid until it is replaced by another regulation, which is also published in the Gazette instead of the old one. If the Government thus decides to keep the old Decree in force, it does not have to publish anything in the Gazette. “On the contrary, if it published something, it would mean that the Decree is no longer valid and that a new decree is valid from then on,” wrote Jaklič.
“In this matter, the majority of the Constitutional Court decided, among other things, that the Government’s decisions to extend the measures from the Decree on the temporary ban on gathering of people in educational institutions and universities did not come into force because they were not published in the Gazette. I could not endorse such a decision by majority, because, in my view, its reasoning is based on rather obvious professional errors or at least major explanatory imperfections, and because the majority, with the aim of an immediate, sudden decision, did not ensure that in obtaining and examining the arguments of the opposite party, these errors could have been overlooked and avoided. In my opinion, the majority decided in this matter prematurely and too hastily by publishing it practically on the same day just like the decision was quickly proposed,” wrote Judge Klemen Jaklič in his dissenting opinion on the Constitutional Court’s decision, that the agreements for regulations, which must be published in the Gazette, otherwise are not valid.
In the continuation of his dissenting opinion, Jaklič wrote that the Constitutional Court, despite having had the initiative with it for three weeks, did not obtain the position of the opposite party, i.e. the Government or its legislative service, regarding the issue of non-publication in the Gazette, which was otherwise the main reason for making such a decision. Similarly, the majority did not face another obvious counter-argument in their decision, which is substantively related to the subsequently expressed position of the government’s legislative service, but still different, he emphasised. “It is about that the Constitution in the explicit provision of the second paragraph of Article 157 in such circumstances confers decision-making power first on the Administrative and not Constitutional Court, which is why the initiative should be rejected at this stage, unless they violate an explicit provision of the Constitution, and the parties should first turn to the Administrative Court,” Judge Jaklič pointed out the fact that the Constitutional Court does not even have jurisdiction for decision-making on this matter, and added that despite not rejecting this obvious counter-argument, the majority decided otherwise, which is not in line with the minimum standards of legal argumentation and legal decision-making. “Similarly, in favour of a hasty decision, the majority rejected my further proposal to describe aforementioned shortcomings in a separate opinion within a suitably shortened overnight period until the morning hours, when a comprehensive decision could then be made public, together with a separate opinion and counter-arguments, as usually,” warned Jaklič.
The majority of the Constitutional Court in decision no. U-I-83/20 on April 16th, 2020, did decide that the Government should on the basis of an expert opinion check every seven days whether the measures introduced are still necessary to achieve the objectives, and while considering professional reasons extend, amend, or abolish them, about this they must also inform the public. But how is the validity of a published regulation extended in the legal system? One possibility is that the regulation itself (in our case the Decree) does not have a set deadline for the automatic termination of such regulation and that the Government decided every so often on the basis of expert grounds whether to maintain such a Decree or amend or abolish it. If it decided to keep it in force, the Government does not need to adopt a special new identical regulation within the framework of this technique and publish it in the Gazette instead of the (still valid) old one. The old regulation which has been published in the Gazette is simply valid until it is replace by another regulation which is also published in the Gazette in the place of the old one. Therefore, if the Government decides to keep the old Decree in force, it does not have to publish anything in the Gazette itself. On the contrary, to publish something would mean that the Decree is no longer in force and that a new Decree becomes valid. This, however, is not an extension of the old regulation, but the replacement of the old Decree with a new one. Therefore, if the Government wants to “extend” the validity of the old Decree, which is one of the possibilities envisaged by the Constitutional Court in resolution no. U-I.83/20, it simply should not publish any new Decree in the Gazette and implements its decision, which is not a regulation, by adequately supporting it with the views of the profession, and with resolution no. U-I-83/20 in detail informs the public about them (and the consequent fact of further validity of the Decree from Gazette).
The case of the Government Decree was an obvious example of the first and not the second technique of extending the validity of regulations
All the above applies because within the framework of this legal technique, the Decree did not contain an explicit date of automatic termination, and therefore it can only be amended or replaced by publishing a new one in the Gazette, and its validity can be extended by not interfering with the Gazette. The second possibility or legal technique of extending regulations (in our case the Decree) is such that the Government determines in the Decree itself that the latter is valid only until a specific date, additionally explained Jaklič. In the context of this technique the decree would, for example, contain a provision that is valid only for seven days from its publication in the Gazette. In this case, and only with this renewal technique, the Government should adopt a new regulation every seven days, even if it is identical in substance to the old one, and publish it in the Gazette. It is therefore clear from what has been described where the majority of the Constitutional Court made a mistake. In too much haste or perhaps excessive desire – the latter would be immeasurably worse according to Jaklič, they too quickly assumed that the validity of regulations could be extended only through the second, and not the first, legal technique. “But this is not true. On the contrary, the first technique is quite common and recognised in legal systems. The case of the Government Decree was obviously an example of the first and not the second technique of extending the validity regulations, as it did not contain any deadline in its provision at which it would automatically expire,” the constitutional judge criticised the Constitutional Court’s decision.
