On Thursday, the State Election Commission will be deciding on the shortening of the deadline for the adoption of the report on the outcome of the referendum vote, the Slovenian Press Agency reports. It seems that they want the laws to be enforced as soon as possible – for political reasons. Interestingly, even Dr Igor Kaučič, a constitutional lawyer from the Faculty of Law of the University of Ljubljana, believes that the 47-day deadline should be respected.
In the recent referendum, the majority of voters supported the amendment to the Radio-Television Slovenia Act, the Government Act and the Long-Term Care Act, so the calculation of the rejection quorum is no longer relevant to the outcome of the vote, according to the State Election Commission. We even heard that the State Election Commission would therefore be discussing a draft decision whereby a report on the outcome of the vote could be adopted without waiting for the rejection
quorum to be calculated. According to the proposal, this would be possible when, on the eighth day after the day of voting in the referendum, when the votes from Slovenia and abroad coming via post have also been taken into account, it would be established “that more voters voted in favour than against the amendments and that the number of deaths of citizens with the right to vote from the day the electoral rolls were drawn up until the close of voting could not have had a significant influence on the outcome of the referendum.”
Until now, the practice has been to wait 47 days from the day of the referendum in order to collect data on the number of people who have died between the day the electoral rolls were drawn up, and the day when the voting closed. This practice is also applied when a majority of voters are in favour of the law and not against its implementation. “This in itself is absurd, since in this case the first condition for determining the validity of the referendum result, namely whether the majority of voters who validly voted in the referendum voted against the law or not, is not met,” the proposers of the meeting (members of the commission Miro Pernat and Mojca Dolenc and deputy commission members Iztok Majhenič and Ivana Grgić) pointed out in their explanatory memorandum.
Currently, the State Election Commission has to wait several weeks after the vote for the ministry responsible for the electoral registration to provide the necessary data, determine the result of the referendum and calculate the rejection quorum. In this particular case, the official results would be received by the State Election Commission on the 24th of January, but we need to keep in mind that the Long-Term Care Act is still scheduled to enter into force on the 1st of January 2023. Minister of Labour, Family, Social Affairs and Equal Opportunities Luka Mesec had already made the assessment on Sunday that “the State Election Commission has very clear legal possibilities that, in the event of a result where the quorum is not reached, it is not necessary to count all living citizens with the right to vote from all over the world.” Mesec believes that, in this case, the results should simply be announced as soon as possible.
Those familiar with the matter at hand see a clear political interest in the desire to bring the laws into force as soon as possible. The source further explained that the absolute number of voters is also important in these rejection referendums. In all other elections, it does not really matter how many people were eligible to vote on the day of the vote, how many were alive at the time, because it is the number of votes and the proportion of votes cast that is being determined. “But here, you have to find out the right number of voters who had the right to vote under the Constitution so that you can calculate the 20 percent ratio. This has been established after the referendum on the archives and already after the family referendum, that it is also necessary to wait for the data on the dead who died on the Sunday of the vote. And that takes a little longer,” he explained.
A constitutional problem arises “It has now been suggested that if there are more voters in favour than against the referendum question, and if the number of dead voters would not have a significant impact on the outcome of the referendum, the rule of waiting for the number of dead voters should be ignored. In a referendum, there are two conditions for rejecting a law, both of which must be met: that there are more against it than in favour of it, and
that at least 20 percent of the voters are against it. If there are not more against than in favour, then the law has passed in any case. The two conditions are not met,” explains the expert, pointing out that this raises the constitutional issue of whether the rules can be changed during the procedure itself. Because this is not a question of just any rules – for example, if you can extend the deadline, i.e. if you can allow someone to vote by post, you do not affect the electoral process. This has always been done in advance. What is being established now is the result on the day of the referendum retrospectively, changing not only the rules in the middle of the process, but even retrospectively. The results will be established on Sunday. There is also the question of whether the State Election Commission can determine whether the number of voters would even have a significant impact on the result. The State Election Commission only determines the result, not the outcomes. What is most controversial is that this changes things retrospectively. In other words, this is about adapting the question of when the law is enforced at all to someone’s political will, even though the rules are known in advance,” he was clear. In his opinion, if the situation were reversed, shortening deadlines would not even be considered. The motion calling the agenda for this sitting was also signed by those who have the majority, meaning the profile members from the Left party (Levica), the Social Democrats party (Socialni demokrati – SD) and the Freedom Movement party (Gibanje Svoboda).
Kaučič believes that the right thing to do would be to wait 47 days In light of all of this, it is certainly worth thinking back to the opinion of Dr Igor Kaučič, a constitutional lawyer from the Faculty of Law of the University of Ljubljana, who spoke on the show Odmevi before the outcome of the referendum was announced about the pitfalls of more people voting in favour of the Long-Term Care Act. According to him, the problem is that some of the rights that are supposed to come into force on the 1st of January will not be able to be implemented, as the results of the referendum will have yet to be determined. “Waiting until January sounds a bit strange, but it is a decision that the State Election Commission introduced a few years ago – namely, that after the referendum is over, it should be established how many voters have died in the meantime. The authorities need a bit more time to find this out. Thus, we get to the number of 47 days.” He said that he himself had a different opinion at the time. The law that is in force will remain in force, he says, until the will of the electorate is officially established. On the other hand, it should also be borne in mind that it is somewhat unusual that the will of the electorate cannot be established.
“We have a legal complication where we have to weigh up what takes precedence.” He also pointed out a piece of tried and tested legal wisdom: “Don’t change the rules of the game during the match. Unfortunately, that is exactly what could happen in this case. There could be an appeal, and that could delay the whole thing even further.” Kaučič expressed his belief that it would be right to respect the 47 days. Especially because we have other ways to solve this problem. “I don’t think the matter is very dramatic. There may be some delay in the enforcement of the law itself. It is practically impossible to implement it right on the 1st of January, as the ministries and administrative units need some time to implement it. In the meantime, the problem will disappear on its own,” he added.
Sara Kovač
