Peter Jambrek in response to the text of Bardutzky, Bugarič and Zagorc to the editor of Verfassungsblog Steinbeis: The house of cards of the heirs of socialism, their system of social position, political status, and the economic privilege will fall apart.

»BBZ’s narrative and conclusions, for example, though impossible to prove right or wrong in terms they are phrased, are welcome, given that they frankly and in a nutshell expose fears and hopes of the Slovenian vanishing post-communist left. The vanishing part hopefully leaving behind its present left, liberal or right elements for novel development – freed from their post-communist respects. Here the famous Party vanguard hate of domestic and foreign class enemies, put into the cradle of the Slovenian post-communist left, seems one of the heaviest backpacks on its alleged road to democratic normality. Instead of the vanguard hate as rationalization for the ultimate goal of party power, specific designs for the improvement of the state of the nation should be of interest,« wrote Peter Jambrek, former president of the Constitutional Court of the Republic of Slovenia, in a letter to Maximilian Steinbeis, editor of the Verfassungsblog.

Jambrek’s letter is a response to a post by constitutional law professors Samo Bardutzky, Bojan Bugarič and Saša Zagorec on the German portal Verfassungsblog, which deals with constitutional law (HERE). Peter Jambrek asks Steinbeis to publish his letter as well.

We publish the letter in full:

“COSTITUTIONAL DEMOCRACY IN SLOVENIA 2021

Second opinion on the origin and direction of system’s strain in Slovenia 2020-2021 as seen  by the authors of »Slovenian Constitutional Hardball« Samo Bardutzky, Bojan Bugarič and Saša Zagorc, published on Verfassungsblog on 01 April 2021

Three constitutional law professors, Samo Bardutzky, Bojan Bugarič and Saša Zagorc (infra »BBZ«) raised issues of constitutional hardball, disruptive moves, illiberal democracy, autocratic design, political transition, and some other rather elevated aspects of the overall change  in Slovenia.

I should state from the outset that I find BBZ’s essay stimulating and rewarding for an educated and interested reader. I thank colleagues from my former Alma Mater of the Ljubljana University Law School, where I spent on and off four decades (enrolled in 1958 and exited in 1998) for their frank and straightforward exposition of their mostly political and duly personalized hopes and fears on the origin and the direction of the state and change of the nation. Their post, at least to me, appears of no consequence for the research in sociology or even wider empirical social science, either in terms of method or theory (my academic career centered around sociology from 1965-1990), nor for the Slovenian and European constitutional law (my judicial and academic career from 1990 till present). It has though some interesting bearings on political psychology of the kind entertained by Lloyd Etheredge (1979) or Nicolo Macciavelli (1532). It is in my view, and in the affirmative sense, a personal testimonial endorsing the view of the Slovenian post-communist left, represented by the current Slovenian opposition informally self-presented as KUL, i.e., in English translation Coalition of the Constitutional Bow (March 2020 – present). I am using the term »post-communist« deliberately to mark the difference between the western European left of its socialist, social-democrat, center, liberal or far left kinds on the one side, and the »left« I observe, experience and know in Slovenia.

Sociological content of the Slovenian post-communist left would in my view be better caught by considering it a conservative, even a reactionary bunch of parties, representing (of course not also being exclusively voted for by) the upper and middle bureaucratic social classes with a high extractive capacity to gain and destroy surplus from the Slovenian working and entrepreneurial classes by way of administrative mis-management, political corruption, and profit, secured by a monopoly rather than competitive merit. Nor do I suggest turning the tables and substituting, within the Slovenian context, the left for the right, and the right for the left, given that it would be conceptually too farfetched for most readers used to terms established in the West.

A quick legal-sociological note is in place here: Communist Slovenia 1945-1990 was not a classless society as officially proclaimed. It was vertically stratified to no surprise of a Pitirim Sorokin’s student, and I could more or less agree with Milovan Djilas’ findings in his The New Class, in line with C. Wright Mills’ The Power Elite. Nonetheless we worked from 1987 till the end of 1991 on the new Constitution for Slovenia which I would, beyond any doubt, classify as modern and liberal. We even shaped the new legal order respectively and aimed to protect it by the Constitutional Court with its robust competencies. Indeed, the ensuing normative system was transformed from its totalitarian predecessor to a western shaped constitutional democracy.

So far so good. Busy with building the constitutional foundations of the Slovenian state we either forgot, neglected or naively expected that the class structure, institutions of the economy, and scope of the state bureaucracy would follow the constitutional lead. They did not. Thirty years after the liberal constitutional revolution all the main subsystems of the nation have remained pretty much the same. They most often changed in order that nothing would really change: Political parties changed their names and programs, public discourse on constitutional ideology changed from Marxist to liberal, and socialist workers’ self-management transformed itself into pseudo competitive closed subsystem of economic and public service monopolies, bedfellows of the state, which remained their (co)owner and supervisor.

With delay and thirty years thereafter we now dare to face the unresolved issue of an over-all disequilibrium in the social system. Major strain happened in 1990 and the years thereafter. All the ensuing changes in the direction of European normality occurred with little deliberate action and mostly in a very slow motion. That was affected partly by the threefold founding revolution in democracy, independence and constitution, partly by the European Union standards, by vitality of private small and medium sized export oriented businesses, and changes in social stratification due to the influx of meritocratic younger generations.  

Here we are: On a delicate threshold where dominance of the entrenched monopolies is weakened and often unprotected, indeed, disrupted. Even informal networks of power elite which after 1990 substituted authority of the Party Central Committee, increasingly lack power instruments to support its survival strategies. Their chains of command to editors of mainstream media, managers of state controlled corporations, and to current network of parties ready for political transmission seem increasingly interrupted and ineffective. BBZ are wrong: Factual hardball in Slovenia comes from the below, the respective disruptive moves are endemic to system’s change.  They tear apart the pre-existing institutional monopolies by their own invisible hands in economy, demography and society. Slovenian democratic center-right forces, in continuity with the 1990 new intellectual and political elite, which swam to the public surface on the tide of the democratic spring movement (the 1987 – 1990 Slovenian Spring),  cannot help but gladly follow the path their predecessors hoped for decades before. 

That being said, I should get to the point: Is there any asymmetric constitutional hardball in Slovenia, and if so, what are its origins, modes and directions?

After the power was handed over as a gift in March 2020 by PM Marjan Šarec for the third term of PM Janez Janša, BBZ report and complain of five examples of constitutional hardball, where the incumbent center-right government coalition implemented the following alleged disruptive moves:

1. Government’s delay in appointment of state and European public prosecutors.
2. Government’s one week long stalling of the approval of calls for applications to university study programs.
3. Dispute between the Government Office of Communications over the financing of the Slovenian public Press Agency.
4. The cases of Constitutional Court and the Court of Auditors.
5. Government appointments in public institutions and law enforcement agencies.

None of the stated cases in my view raises judiciable constitutional issues. Government action in all of them is grounded in substantive law and in legal competencies, including public appointments. It is also subject to judicial scrutiny in case of conflict of interest, including the case of public Press Agency. 

With regard to the higher education “disruption” it is difficult to understand, how an informed, constructive and lengthy discussion between all actors in Slovenian higher education and PM could be labeled hardball or disruptive. On the contrary, PM raised the issue of enrollment quotas to be decided upon by his Cabinet from sheer bureaucratic nuisance to a public issue of permanent adjustment of needs and demands of the Slovenian economy and the state for university graduates within enrollment quotas financed by the taxpayers’ money. PM’s invited guests agreed in a public debate to a swift consensual decision on the current issue, and on the continuation of the debate for the future annual agreements. The debate resulted in an increase of a number of publicly funded places for study at the medical schools of the Ljubljana and Maribor University.

As to the Constitutional Court, I am simply unaware of any »strong attacks by the government« on this judicial body. I did follow, of course, public criticisms by a number of professors of constitutional law over the Slovenian Constitutional Court’s alleged violations of the professional constitutional law standards. Here BBZ refer to the on-going professional public debate as strong attacks, which were decried publicly by two judges of the Court. Myself, I have to restrain, at least here and now, from taking sides on the respective multi-faceted factual and legal issues. Well, it may be of interest to note that the Court is presently packed by the former governments, tilting unmistakingly to the post-communist left by a margin of 7:2.

It is even more difficult to understand the case of the Court of Auditors. Its main issue is the President’s conflict of interest due to his contractual employment with FIFA, amounting to over a quarter of a million EURO’s annual reward for his service to the said for-profit organization, which Luxembourg Court classified as such (case T-193/02 of Laurent Piau, see paras 69-70), exceeding several times his official salary in Slovenia. And yes, the same President was criticized even by the left-leaning mainstream daily Delo newspaper, for the abuse of power in a public communication over the draft Court’ report and timing of its disclosure in the case of procurement of medical and protective equipment. No need here for government action. The term of Court of Auditors President expired ex lege three month after non-reporting and  no-resolution of the said conflict of interest.

To top the five briefly discussed cases, BBZ also mention the government’s attempts “to sneak  individual problematic solutions into the so called ‘anti-corona packages’.” Here they falsely mention »extension of valid accreditation of higher education institutions«. Wrong: no extension of accreditation was legislated, just extension of restrictive measures enacted in December 2016, while all the rest valid from 1993 on stay in place as criteria and conditions for the on-going accreditations. 

Next I turn over to the alleged list of disruptive moves that may be qualified as constitutional hardball dealings exercised by the Slovenian post-communist left:

1. The newly combative techniques of the media propaganda and agitation from March 2020 on, directed by the five mainstream media against the incumbent center-right government. Comment: Mass and structural interference with the right to receive information in view of the estimated 75-80% control of the post-communist left over the three mainstream daily newspapers and two main news reporting TV channels.
2. The excessive and prioritized use of propaganda techniques of character assassination, negative assessment, labeling, stigmatization of the opponents, i.e., the government, its ministers, PM, et al. Comment: Mass and institutional interference with the right to personal dignity, identity and privacy due to the disproportionate media bias (same as supra).
3. Attempts at disrupting the government immediately after its appointment in the parliament by persuading, luring and lobbying the individual MP’s to change their party and coalition identity. Comment: Hardball disruptions within constitutional limits.
4. Constructive no confidence vote to change the government. Comment: Constitutional action in pursuit of power.
5. Submission of interpellations against ministers. Comment: Constitutional action aiming at toppling the incumbent government.
6. Attempts at referenda initiatives. Comment: Legitimate action subject to Constitutional Court control.
7. Street protests. Comment: Lawful action, when within limits of pandemic measures curtailing individual rights.
8. Hostile and aggressive language in public discourse against individual power holders. Comment: Potential abuse of the right to freedom of expression, especially in cases of death threats to incumbent public figures; political hardball par excellence.
9. Impeachment of PM. Comment: Constitutional action transgressing good parliamentary behavior in case of arbitrary and ill-founded arguments.
10. Transfer of domestic party confrontation to the level of friendly foreign media and the European, followed by the import of the said back to the domestic exchange. Comment: Legitimate and constitutional practice of upgrading or substituting domestic techniques of mass persuasion.
11. Scaling up minor flaws of the center-right public officials and scaling down or ignoring major flaws of the post-communist left public officials:. Comment: Specific measure within the potential privilege of Party controlled mainstream media (Here, and also above and below, Party is used as a shortcut name for any election-to-election changing compositions of political parties of the post-communist left.).
12. Attempts at interfering with legal-constitutional rights to teaching, research and sheer existence of the private higher education institutions and private research institutes, as pursued through the left-controlled ministry, the Rector’s Conference, parliamentary actions, and the accreditation agency (NAKVIS). Comment: Unconstitutional and unlawful practices depending on specific judiciable circumstances.
13. Opposition to the enforcement of Constitutional Court judgement on financing of private elementary schools: Straightforward unconstitutional practice, bordering on the constitutional crisis.
14. The strategic policy of the post-communist left to excommunicate, politically isolate and demonize the center-right party of SDS and its leader Janez Janša, with the goal to monopolize the democratic public discourse by excluding one of the two major collective political participants. Comment: Straightforwardly disruptive and hardball political moves, contrary to good parliamentary practice.
15. The utilization of Covid 19 health pandemic and national health crisis for repetitive attacks on the government measures to curb the crisis – for party political gain. When modes of lock-down measures are introduced, accusations of their breach of basic individual rights and constitutionality are raised, while measures of lifting and opening of lock-downs are used to blame the government for inefficient management of the health crisis, resulting in excessive death toll among the virus infected persons. Thereby the post-communist opposition leads an alleged win-win propaganda hardball political and constitutional game. Comment: Straightforwardly disruptive and hardball practices within the limits of constitutional democracy, subject to voters’ scrutiny at the next elections.
16. Stigmatizing the incumbent Slovenian government and its PM by association with Hungarian PM Victor Orban and other allegedly illiberal, i.e., populist, anti-migration, pro-family, soverignist and anti-EU oriented leaderships in some Central European EU member states, branding the Slovenian center-right PM as an autocrat disturbing democracy, breaching humans right and freedoms, transgressing constitutional principles of the rule of law, division of powers, etc. Comment: Stretching techniques of mass persuasion by means of propaganda and agitation beyond limits of fair play  in the conduct foreign policy in pursuit of Party political and monopoly-preserving interests. Psycho-political hardball.

In the above list, four are borderline cases in the sense of potential interference with constitutional rights of a political adversary, and five of them seem good examples of hardball politics. Together they amount to nine out of sixteen potentially disruptive dealings of post-communist left in Slovenia, which seem to qualify as at least judiciable.

So, what next? Should the two Slovenian adversarial blocks be advised to stop arguing and fighting with each other? Of course not, they should go on doing their job of competing for public preference and votes. They should, however, to their own good, recognize each other as partners in the same game, where verbal and factual attempts at eliminating the adversary altogether are strictly forbidden. Next, civil discourse must be practiced in order to encourage competition for public approval of ideas on national priorities. Temporal and various modes of collaboration across competitive ideological camps should not be excluded; why not recommended? May also dreams be allowed for a balanced initial position of partners in a game where cards – media, judges, intellectual capital, and others – are distributed in a fair and proportional way among the players. Forget the lures of reconciliation, think of the future, and respect the good old family upbringing in the mood of civility and fairness, in Slovenian poštenje, which in a single word reflects the primordial ten commandments. I would agree with BBZ that shifting the blame serves no good, added that both sides may fall victim to such practice.

Concluding remarks by BBZ on effects of incumbent Government’s moves in view of 2022 parliamentary elections seem rather pessimistic. In their view, whatever the center-right coalition will do during the coming pre-electoral year, and no difference whether it will win or lose, years of disruption are foreseen, independent institutions to be discredited and debilitated, and in the worst-case scenario autocratic legalism will prevail. Translated into the narrative of the present rebuke, BBZ fear that further dominance of the post-communist left will be undermined in most societal domains.  They seem to be aware, that the present “dominance in all domains”, as they phrase it, without KUL’s clear monopoly in media mass persuasion, without control over the guardians of power, such as the courts and the banks are, and with the emerging freedom of production forces in economy and in services, transition may fade away. The house of cards of the heirs of socialism, their system of social position, political status, and the economic privilege will fall apart. Here we both agree, we only differ in jargon: BBZ call it the doomsday of autocratic legalism, where I see the onset of democratic normality.

It is a testimony of the actually existing Slovenian constitutional democracy, that such exchanges and disagreements as the present, are possible, and that outcomes of all predictions on the origin and direction of change in Slovenia remain probable. BBZ’s narrative and conclusions, for example, though impossible to prove right or wrong in terms they are phrased, are welcome, given that they frankly and in a nutshell expose fears and hopes of the Slovenian vanishing post-communist left. The vanishing part hopefully leaving behind its present left, liberal or right elements for novel development – freed from their post-communist respects. Here the famous Party vanguard hate of domestic and foreign class enemies, put into the cradle of the Slovenian post-communist left, seems one of the heaviest backpacks on its alleged road to democratic normality. Instead of the vanguard hate as rationalization for the ultimate goal of party power, specific designs for the improvement of the state of the nation should be of interest.

Let me conclude by expressing also my personal fascination over the result of comparing the formae mentis of the oldest and once the only Department of Constitutional law in the country, as I was able to observe it over the last 60 plus years, privilege also of the present exchange: Nothing has changed, believe it or not. 

At Bled, 3 April, 2021

Peter Jambrek

Professor of Constitutional Law, first President of the Constitutional Court of the Republic of Slovenia, first Slovenian Justice at the ECtHR, Founder and President of the New University.”