When members of Parliament of the Slovenian Democratic Party (Slovenska demokratska stranka – SDS) and the New Slovenia party (Nova Slovenija – NSi) submitted a request to the Constitutional Court for an assessment of the constitutionality and legality of the decision on the recognition of Palestine, in which they accused the coalition of violating the Constitution and the Rules of Procedure of the National Assembly of the Republic of Slovenia, it was, of course, known in advance how the “depoliticised” Constitutional Court would rule, or how the five political activists, who reliably push the button in favour of the left-wing government, would rule. Nevertheless, in the long run, this is good news for Slovenia and the current opposition, which will be the future coalition.
The majority of the Constitutional Court did not rule on the substance at all, but laconically ruled that the Constitutional Court had no jurisdiction to review the Decision on the recognition of the independence and sovereignty of the State of Palestine. The “conscience of the court,” represented lately only by judges Klemen Jaklič and Rok Svetlič, has once again held up a mirror to the other constitutional judges and shown that their responsibility goes beyond washing their hands by claiming that this is out of their jurisdiction.
The rule of law is about political will being subordinate to the law
In his separate dissenting opinion, judge Jaklič acknowledged that both the political will to recognise Palestine and the will to hold a referendum are legitimate, but pointed out that we should also stay within the framework of the rule of law, as we even have explicit and pre-established provisions in the Rules of Procedure of the National Assembly for such a case. These provide that a proposal for a consultative referendum shall be placed on the agenda of the first following session of the National Assembly if it is tabled no later than 30 days before such a session.
Jaklič also noted that the 30-day time limit would, of course, have extended the process of the National Assembly reaching its decision on recognition of Palestine by a shorter period, which is not unreasonably long, but he also noted what was really at stake in the rejection of the referendum: the shorter extension was not in line with the political preferences of the Speaker of the National Assembly and the coalition majority, and they, therefore, consciously chose not to follow this explicit and clear rule from the law.
“The essence of the rule of law is that it creates a state in which political will is subordinated to pre-determined law, and not the other way around. No longer is the will of the king above all, as was once the case, but even the latter, like any other form of political power, is ruled by pre-established law in a state governed by the rule of law. Conversely, a state in which this principle is turned upside down, and in which the political will therefore reigns supreme over pre-ordained law, is not a state governed by the rule of law,” judge Svetlič pointed out, thus diagnosing the current state of Slovenian parliamentary democracy.
The Constitutional Court will stand idly by as each successive politician tramples on the foundations of the rule of law
It is frightening for anyone who is aware of this essence of the rule of law and its importance for a state that such deliberate violations by the leadership of the National Assembly and the coalition political majority that follows the leadership are even repeated on a regular basis – Jaklič mentioned several cases where the current coalition has explicitly violated the Rules of Procedure of the National Assembly and even the decisions of the Constitutional Court. It seems like the Constitutional Court will stand idly by while every new political set tramples on the foundations of the rule of law in front of its eyes. Is that really what we want to make of our country, about which we boldly wrote into the Constitution thirty years ago that it “is a state governed by the rule of law” (more realistically, it is at least true that that is what we would like to become one day)?
Two powers that the Constitutional Court is forgetting
Jaklič acknowledged that the Constitutional Court Act lists the competencies of the Constitutional Court within which it may exercise jurisdiction, and that the abstract review of the constitutionality of specific acts is not among them, and that the decision on the recognition of Palestine is a specific, not a general legal act. But, as he pointed out, the majority of the Constitutional Court judges seem to “forget” in the same breath that this same Constitutional Court Act lists, among the powers mentioned, at least two others which, in the present case, constitute a perfectly correct legal basis for a precedent which could easily protect the rule of law from abuse in several such cases of abuse by any political party.
Firstly, the Constitutional Court Act states that the Constitutional Court shall also review “the unconstitutionality of acts and actions of political parties” and that “anyone may initiate such a review of the conduct of political parties.” Jaklič wondered why, then, this request by members of the National Assembly should not be regarded as an initiative to review the conduct (i.e. concrete action) of political parties which, for their own political preferences, have consciously decided within their own groups in the National Assembly to violate clearly and not unreasonably pre-established law.
Secondly, and perhaps even more simply, the Constitutional Court Act also explicitly provides that the Constitutional Court may also review specific acts in the constitutional complaint procedure and adjudicate “on constitutional complaints for violations of human rights and fundamental freedoms by individual acts.” Since the decision on the recognition of Palestine is a concrete legal act of the political authority (whether it is called a sui generis political and legal act or otherwise does not change the fact that it is a concrete act of the authority), it is therefore also capable of violating human rights and fundamental freedoms. And that is precisely the point.
The right of every citizen to a functioning foundation of the rule of law is, in the concrete case, also exercised through the right of opposition Members of Parliament to perform their role as opposition Members of Parliament effectively and freely in accordance with pre-established law. It is precisely this right that has been denied to opposition Members in the present case, despite the fact that it was even expressly protected for them by the pre-established Rules of Procedure of the National Assembly. Their function of opposition activity has been infringed in a concrete case by a concrete legal-political act of authority, and thus their – and consequently our – right to respect for the very essence of the functioning of the rule of law, which is, after all, also a fundamental right in a democratic state governed by the rule of law, has also been infringed. This is a right of both Members of Parliament, as well as all of us citizens.
The precedent that could really effectively prevent the conscious subversion of the rule of law by the top of one of the hierarchically equivalent three branches of power can only come through a decision of the hierarchically equivalent top of the judiciary, the Constitutional Court, as the final arbiter, Jaklič concluded.
Svetlič: The National Assembly is completely free to break its own rules
Svetlič also admitted in his opinion that the Constitutional Court cannot decide which entity the National Assembly decides to recognise as a sovereign state. However, as he pointed out, we must bear in mind that the recognition of a state is not without legal and political consequences and represents the position of the Republic of Slovenia as such, and therefore respect for due process in the adoption of a decision on the recognition of a state cannot be separated a priori from the question of respect for the principles of constitutional democracy. The constitutional review is not only concerned with the content of acts adopted by the National Assembly. The procedure by which an act with a certain content was adopted is also an independent aspect of the review. If an act is adopted in violation of the prescribed procedure, this may also lead to the conclusion that the act is unconstitutional.
The review of decisions (e.g. on recognition of states) is not listed among the powers of the Constitutional Court. This rule was followed by the Constitutional Court in the present case. It found that the contested decision was not a general and abstract act and that, consequently, the Court was not competent to review it, and thus dismissed the petition. However, by this decision, which is correct from a formal point of view, the Constitutional Court is also sending a message: that the National Assembly is placed in a kind of constitutional law exterritorial space, where it is completely free to commit future violations of its own procedures. If such violations are repeated, if the mechanisms for controlling the authorities are loosened, then the violation of the Rules of Procedure becomes a violation of the fundamental principles of constitutional democracy.
The creators of the Constitution did not envisage the current coalition
In Svetlič’s opinion, the creators of the Constitution probably did not imagine that the functioning of the National Assembly of a democratic republic could be characterised by a practice of violating internal acts and weakening the control of power in this way. But it is even more difficult to imagine that the creators of the Constitution wanted the Constitutional Court to stand idly by in the name of respect for the law if a pathology of democracy developed in a key democratic institution.
A literal interpretation of the Constitution is no guarantee of respect for the rule of law
Svetlič also made the crucial point that a literal interpretation of the Constitution is NOT always a guarantee of respect for the “constitutionality of legality”. It can be quite the opposite. The Constitutional Court has recognised this on several occasions in the past and has broken through the literal interpretation of the provisions of the Constitution before. If it were to do something similar in this case, it would interpret the Constitution in the best possible way in the concrete situation – all it would be asking is that the National Assembly respects the democratic rules that it itself has adopted.
I. K.
