By: Sara Bertocelj
The constitutional opinion states that the right to a referendum in connection with the Act on the Provision of Investments in the Slovenian Armed Forces does not exist. Namely, the law fulfils all the conditions for a constitutionally permissible ban on a referendum. The amended constitutional regulation envisages four legal areas or laws on which a referendum cannot be called and ZZSISV falls under the first point, which says that a referendum on laws on emergency measures to ensure state defence, security or eliminate the consequences of natural disasters, a referendum is not allowed.
On Friday, the National Assembly of the Republic of Slovenia adopted a proposal for the Investment in the Slovenian Army Act (ZZSISV) from 2021 to 2026. Opposition parties have previously opposed the adoption of the law, citing misleading reasons. To this end, the SD party 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, although the law does not provide for the purchase of a single tank. “The Investment in the Slovenian Army Act does not provide for the purchase of tanks, but modern wheeled 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, one percent of GDP will be spent on the most necessary investments, namely for appropriate equipment, decent construction of barracks, purchase of transport helicopters, transport aircraft and armoured vehicles, which will contribute to greater security and survival of Slovenian soldiers on missions.
Opposition parties are also well aware of the rules of the game regarding the referendum, so it is not entirely clear why Levica set up a stand on Adamič-Lundrov nabrežje yesterday to collect signatures for the subsequent legislative referendum. “It is unheard of for the government to purchase weapons for 780 million euros in the midst of the biggest crisis,” said the coordinator of Levica, Luka Mesec. Well, even more outrageous is misleading the public and deliberately gathering crowds of people during an epidemic when it is not even allowed.
A referendum initiative has no chance before the Constitutional Court
Dejan Levanič from the SD party also announced that they had started collecting signatures, and said that, as always, they were calling from all over Slovenia. However, he probably did not tell the callers that the ZRLI stipulates in the fifth paragraph of Article 21a 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 legitimized to initiate proceedings before the Constitutional Court. In the case of a ban on a referendum on urgent laws from the first indent of the second paragraph of Article 90 of the Constitution, which is procedurally regulated by Article 21a of the ZRLI, the Constitutional Court cannot assess the constitutionality of a decision on the inadmissibility of a referendum. In other words, signatures are completely unnecessary and both Levica and the SD are very well 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, stressing: “There will be no referendum.
Despite the fact that the Social Democrats have lied, they – as they usually do – insist on their own. They continue to convince the public that the government will spend 780 million on weapons, not on health, jobs and care for the elderly. They also forget to add that the investments are spread over the next six years. In the opposition, they talk as if all the money will be taken out of the budget pocket tomorrow, and the health care system will run out of money for health care, right now in the middle of the health crisis, at the expense of “weapons”. Yesterday we reported that the Minister of Defence Matej Tonin told our media that this is a very grounded political campaign, with which the left wants to excite people and bring more anger into society, especially with demagogic depictions of how there is no money for something, but there is money for other things.
Calling a subsequent referendum would be constitutionally inadmissible
Matej Tonin pointed out that calling a subsequent referendum on the law on investments in the Slovenian Armed Forces until 2026 would be constitutionally inadmissible. The Ministry of Defence explained: “As part of the debate on the law, the National Assembly at the end of October rejected the proposal of the Levica Party to call a consultative referendum on this law. The mentioned party also announces the possibility of initiating procedures for calling a subsequent legislative referendum. On September 23rd this year, the Government of the Republic of Slovenia proposed to the National Assembly the adoption of a resolution that calling a subsequent legislative referendum on the issue of investments and the modernisation of the Slovenian Armed Forces would be constitutionally inadmissible. “
Constitutional opinion on the inadmissibility of calling a legislative referendum
The Ministry of Defence addressed a request to the Institute of Constitutional Law to prepare a legal opinion to answer the question of whether a referendum on the said law is admissible in accordance with the Constitution of the Republic of Slovenia. The legal opinion was prepared by prof. Dr. Matej Avbelj and prof. Dr. Igor Kaučič, 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, 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. ZZSISV 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, for a law which, in accordance with the first indent 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 it can call a referendum on a law only if it is convinced of its constitutional admissibility. In the case of a ban on a referendum on urgent laws from the first indent of the second paragraph of Article 90 of the Constitution, which is procedurally regulated by Article 21.a of the ZRLI, 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 over.
It follows from the conclusion of the legal opinion of both eminent constitutional law experts that all three conditions from the first indent of the second paragraph of Article 90 of the Constitution of the Republic of Slovenia are met at ZZSISV, due to which a referendum against the said law 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;
- Constitutional values are: defence of the state, security and elimination of the consequences of natural disasters.
Legal experts believe that the first and third conditions are met at first sight, as this is a bill 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, therefore essential and crucial in their content, so that without them defence and security cannot be satisfactorily ensured. In terms of time, their postponement, or even non-acceptance in the event of a successful referendum, must seriously impede the functioning of the state to perform its basic functions, which could lead to irreparable consequences or jeopardize the implementation of other constitutional provisions.
Constitutional lawyers believe that ZZSISV 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, so the National Assembly may constitutionally prohibit calling a referendum on this Act the second paragraph of Article 90 of the Constitution.
The Constitutional Court would also prohibit such a referendum, which would mean continuing to maintain the status quo
The resolution of the constitutional opinion 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 on a referendum would withstand a possible constitutional weighing of competing values under Article 15 of the Constitution. However, given all the circumstances of the case, given the fact that the situation in the Slovenian Armed Forces has lasted for a long time, which is contrary to both the Slovenian Constitution and the accepted international legal obligations, it can be concluded that the Constitutional Court would prohibit such a referendum, which would mean maintaining the status quo, on the basis of its case law within the framework of Article 15 of the Constitution, weighing competing constitutional values, even in the absence of an explicit legal basis for prohibiting a referendum in the first indent of the second paragraph of Article 90 of the Constitution.