The government of Robert Golob is set to change the Constitution. If adopted, the proposed amendments would transfer the power to appoint judges from the National Assembly to the President of the Republic, as proposed by the Judicial Council. Not only that but the composition of the Judicial Council is also set to change. Following the changes in the Constitution, there would be 11 instead of 15 members of the Council, and 8 of them (i.e. the majority) would be appointed by the Judicial Council itself, i.e. by the judges. Both Dr Ernest Petrič and Dr Mitja Deisinger oppose the proposed constitutional changes.
The two former Constitutional Court judges shared their thoughts in a recent episode of the show “Spoznanje več, predsodek manj” (More Knowledge, Less Prejudice) on Radio Ognjišče. Petrič spoke on several topics during the show, but the subject of our interest is the constitutional amendments being prepared by the current authorities. The guest of the programme believes that the proposed amendments do not contribute to depoliticisation nor to politicisation, but introduce a so-called guild approach at a time when the Slovenian judiciary does not enjoy a very high reputation.
“The change in the number of members of the Judicial Council does nothing to politicise or depoliticise the judiciary. The fact that it will no longer be the members of the National Assembly – meaning, the elected representatives voted for by the people, who thus show them their trust, which is the essence of democracy – who will nominate the person to be appointed to the Judicial Council, but it will instead be the President of the Republic who nominates the said person, is not essential either. The President of the Republic is also a politically engaged and thinking person. And there is nothing wrong with being appointed by the President or by the National Assembly. What is essential is who nominates the candidates for the positions of judges,” Dr Petrič initially said.
Introducing a guild approach
On the show, Petrič further explained that the proposed constitutional amendments actually introduce a guild approach, in which the judges’ guild will have the main choice on who the judges will be.
“So, broadly speaking, it follows that the judges themselves will have the main choice as to who the new judges will be. If that is not a guild approach, then I don’t know what a guild approach is. Judges are supposed to make independent decisions, to judge, to enjoy a certain respect, which is a big problem here, because there is nothing worse for a country if the judiciary does not enjoy a certain respect. And here – gentlemen and ladies of the judiciary, and there are many of them, who are doing a splendid job, do not take offence at me saying this – here, the judiciary does not enjoy the respect it should. Why? Probably because of their rulings and their work. And now, we are going to go down the same road. We are supposedly going to depoliticise the judiciary, but the guild-like nature of the Judicial Council, whose work I have also followed as a Constitutional Court judge and as President of the Constitutional Court, the fact that judges will still have the main say in the selection of other, different, new judges, I don’t know if that is a good thing,” said the former diplomat, Constitutional Court judge and professor.
Yet another abuse of the urgent procedure for the adoption of legislation
As a reminder, the government has decided to adopt constitutional amendments under the urgent procedure. This is a parliamentary procedure for adopting laws, which is reserved for three cases: the times of war, a natural disaster, and a serious threat to democracy. However, the adoption of critical laws under the urgent procedure seems to have become the modus operandi of the Robert Golob government, which is being assisted in this endeavour by the opposition New Slovenia party (Nova Slovenija – NSi). This is how they went about adopting the amendment to the Radio-Television Slovenia Act, the act on supplements to the salaries of judicial workers, the amendment to the Long-Term Care Act, and so on.
“What bothers me the most is that this is to be resolved under the urgent procedure, and that is simply unbelievable. I could not believe it, and I still do not believe it. Those of you who are afraid, I am afraid too, if this is going to be an urgent procedure, that this is wrong. The urgent procedure is to be used when war is at the door, when we have just faced a huge catastrophe, or when everything is collapsing. But in the case at hand, we are talking about the election of judges, any judges. This is an extremely important matter that requires deep, deep and, once again, deep reflection. Not just a “quick fix” to depoliticise the judiciary,” warned Dr Petrič.
Petrič then went on to say that these changes will not “depoliticise” anything. “The problem with judges is their independence. This is, in my opinion, our main problem. In our country, as it was said before, when I was still studying law, law is a tool in the hands of the ruling class to ensure its power. This mentality is still present in many places,” Petrič explained. While he doubts that judicial workers receive direct calls from those in power, and he did not receive any when he was a Constitutional Court Judge, this does not mean that judges are not subject to external influences. He believes that there was no external independence in his time and doubts that there is much of it now.
“Some situations, like the Kangler trial in Maribor, may indeed raise some questions, some concerns,” he pointed out.
“Let me also take this opportunity to say this. Whenever our constitutional judges are elected, I am most disturbed by the fact that someone is elected who is clear in advance that he or she is a fighter for a certain cause. For the right of this or that, for the rights of animals… Such a person does not belong in such a court,” said the former Constitutional Court Judge.
Two-thirds majority for the election of judges
The web portal of Radio Ognjišče also shared the opinion of another former Constitutional Court Judge and President of the Supreme Court, Dr Mitja Deisinger. He believes that the power to appoint judges should remain with the National Assembly. However, he would recommend a two-thirds majority for their election, for the very reason that a judge should also receive votes from the opposition. He said, “The most important elections are those in the National Assembly, and here I would suggest that a two-thirds majority is needed in the National Assembly. Why? Because one party, or one party that has a majority in the National Assembly and controls the government and the National Assembly, cannot make decisions on its own. A two-thirds majority in the National Assembly would result in a single entity from both the majority and the opposition voting for the election of judges.”
Ž. K.
