By: Andrej Žitnik (Nova24tv.si)
Dr Matej Avbelj wrote for the IUS-INFO portal about mistakes and manipulations during the temporary suspension of the ZRTVS-1 amendment by the Constitutional Court. According to his legal interpretation, the process of establishing new management, leadership and control bodies cannot be completed. Therefore, the current situation of the execution of current transactions by the subjects, which the ex lege amendment beheaded, is maintained. We publish his opinion in full.
“As is appropriate in a plural society, the decision was accompanied by different reactions in the public. As is the custom in Slovenia, these responses, and this is regrettable, practically completely lacked legal arguments. They were not the most convincing even in the decision of the Constitutional Court, and the disapproving separate opinions are a chapter in themselves,” said Matej Avbelj.
Thus, it seems that the proposer of the amendment and all his supporters in this matter continue to try to achieve victory not with legal arguments, but with the preservation of the dominant political narrative, supported by the media’s construction of reality and with a considerable degree of manipulation. All this, however, is light years away from what is normal in a well-ordered constitutional democracy.
In the following, he drew attention to some obvious anomalies or pathologies in public and professional discourse, which in a normal country, in which the media space would actually be plural and professional, and the legal profession is also committed to knowledge and professional integrity, would undoubtedly find themselves exclusively on the edge of public space.
Between the rule of law and the rule of lawlessness
He warned that his response in this matter is not impartial. From the very beginning, it is clear that he is the author of the initiative for the review of constitutionality, which was published in its entirety on January 19th, 2023, in Pravna praksa with the aim of opening the widest possible public, especially professional, legal debate.
As he pointed out, he did not write this initiative as a lawyer for the parties, but as a university professor of law, editor-in-chief of the Commentary on the Constitution of the Republic of Slovenia, because this mission obliges him to speak out when the authorities act in blatant contradiction with the fundamental postulates of constitutional democracy. This advertising is all the more important when such governmental behaviour is supported, if I am only slightly exaggerating, by the plebiscite consent of the legislative and executive branches of government, the dominant civil society, and the media.
Already Radbruch taught that “only what is right benefits the people”. Otherwise, it can quickly happen that “the self-interest of the rulers [becomes] general benefit. Thus […] equating the law and the supposed or imagined national welfare turns […] the state of law into a state of lawlessness”. And that is exactly what this case is all about, the thin dividing line between the rule of law and lawlessness.
Everything else is either manipulation or a reflection of ignorance and misunderstanding, or which is of course the worst, all three together. With the magical seven below, I point out some of the most egregious examples of this.
Magical 7 in case U-I-479/22
- The essence of case U-I-479/22 is a systemic, institutional constitutional question, which reads: “Is it in accordance with the constitution and European constitutional law, if the legislator, supported by the popular will, expressed in the referendum, and the dominant civil society, with abuse of the necessary legislative procedure, without citing any objectively verifiable, let alone convincing, legal arguments in the constitutionally permissible public interest, by the law itself, ex lege, immediately terminates the mandates of management and control of public radio and television with the aim of depoliticising specific individuals, and by transferring democratic control over RTV from the hands of the parliament to the hands of corporatist organisations, for the selection of which the law does not specify any criteria?”
- In this matter, therefore, it is not a question of any kind of protection of the privileges or acquired rights of officials, as is falsely stated in the public. If you do not believe, read the initiative. It is about protecting the institutional independence of public radio and television as a presupposition of the right to freedom of expression, the function of which are the mandates of management, leadership, and control at RTVS. The first four petitioners are therefore primarily not suing in their own, personal capacity, but in the capacity of holders of institutional positions protected by the constitution and the European constitutional legal order.
- At the same time, the Slovenian lay, and professional public completely overlooked that RTV itself was the initiator. Above all, this fact proves that the constitutional claim from the initiative is of an objective nature and far exceeds the interests of the current leaders and management. RTV, as an institution, claims that the amendment is unconstitutional in itself, objectively, by the nature of things, due to the new management structure, regardless of who is, in a subjective sense, the current member of the programme board or who is the director today.
- That is why the unconstitutionality of the amendment cannot be remedied by determining compensation for those who were unconstitutionally dismissed, otherwise, as is completely frivolously proposed by the opposing participant in the proceedings. The core of the initiative is not the material compensation of individuals, but rather its essence is the objective protection of rights from Article 39 of the Constitution in connection with all the safeguards of the rule of law.
- In this context, the position of the National Assembly that the petitioners, whose mandates have already been taken away by the law itself, no longer has any legal interest in exercising judicial protection is completely wrong, in fact terrifying. The same applies to dissenting separate opinions, which insist that mandates can no longer be constitutionally returned, or this would only be possible if the suspension of the law occurred at a non-existent point in time between its adoption and enforcement. So never.
- The last dilemma is simply resolved by Article 44 of the Constitutional Court Act, which constitutional judges should be familiar with; but the first one is at odds with a minimal sense of justice and right, and thus has nothing in common with law in a state governed by the rule of law. Denying the petitioners, a legal interest in this case, because their mandates have already been revoked, is like a policeman telling a victim who ran to him, claiming that a thief had stolen a gold ring, that he could no longer legally help her, because the thief already has the ring on his hand.
- Handwringing in disapproving separate opinions that the temporary suspension will now cause even greater damage to RTV, because the Constitutional Court will take a very long time to decide, is placed directly in the section It is not true, but it is! The one on whom the adoption of a decision solely depends on cannot credibly complain about himself, saying that damage will occur because he is slow, even if in accordance with the right to a trial within a reasonable time, which in this case is really short, it should not be.
An easy example
“In short, if the law spoke in a given case, and not deception, manipulation, political tensions; mind-boggling salti mortalis with positions that certain experts have represented in the past; if they did not look for the blame for the failure even in the tyranny of the male gender over the female gender in the constitutional court, we would find that we actually have a very simple legal problem in front of us,” noted Avbelj.
Avbelj is convinced that this point of view also finds its way into the majority opinion of constitutional judges, whom he believes, as Professor Rajko Knez lucidly pointed out in his separate opinion, will be able to distinguish between systemic, institutional issues and objectively verifiable facts on the one hand, and subjective desires and conflicts of interest conditioned by such a human factor, which our public RTV and the country as a whole have at their disposal.
“If the Constitutional Court will act in this way – it cannot do otherwise in accordance with the constitutional law – then there really can be no doubt about the final result in this notorious case. As there is no doubt that precisely because of this, political nervousness in our country will continue to be at the highest possible speeds in the coming weeks. And with it also errors and manipulations,” concluded Avbelj.