On Wednesday, after intense public pressure and numerous concerns raised by the Legislative and Legal Service of the National Assembly, the government withdrew the controversial bill on temporary salary increases for judges and prosecutors. The law was problematic firstly because it regulated salaries in the judicial system on an ad-hoc basis, following a vehement promise by the Prime Minister, and secondly – even more damagingly – because the authorities wanted to adopt it under the urgent procedure. Since this is not the first time that something like that has happened, we spoke to former Constitutional Court judge and professor of administrative law, Dr Tone Jerovšek, who said that the choice of such procedures shows “the arbitrariness of the authorities,” and that the promise of a raise for judges and prosecutors by the government is an attempt to “ingratiate themselves with the entire repressive apparatus.”
The Golob government first adopted the Radio-Television Slovenia Act under the urgent procedure. The coalition justified the urgency of adopting the bill on the grounds that not doing it would have irreversible consequences for the functioning of the state. They tried to repeat the exercise with the bill on the temporary supplement to the salaries of judges and prosecutors. Again, the consequences for the state would be irreversible, or at least that is what the ruling party tried to make the public believe. A section of the public even argued that the previous government had also adopted laws under the urgent procedure. Therefore, the government of Robert Golob was also entitled to do so.
But the previous government passed laws under the urgent procedure because there were objective reasons for doing so. Namely, there was an epidemic going on. That objective reason no longer exists, but the urgent procedures remain. The objective reasons have been replaced by political reasons. We asked Dr Jerovšek whether adopting such legislation under the urgent procedure is possible, and he told us: “The Rules of Procedure of the National Assembly determine when laws can be adopted under the urgent procedure, but regulating the salary regime, which is what they are trying to do here, is not an urgent procedure. It is a regular procedure, in which positions can be taken, amendments can be tabled and so on. I do not see any valid reason why we should be able to regulate salaries under the urgent procedure. This is not a state of emergency. If a law is adopted under the urgent procedure, there must be a justification for it.”
The conditions for adopting a law under the urgent procedure are clearly set out. The use of the urgent procedure is admissible where the consequences of a natural disaster, the interests of national security or defence, or the prevention of irreparable damage to the functioning of the state are at stake. The question arises whether it is legally possible to stretch the last condition, which has been used by the authorities up to now, to such an extent as to justify regulating the salaries of judges and prosecutors in this way. Jerovšek asked, “what consequences, which are difficult to remedy, could arise from this not being regulated under an urgent procedure?” and explained that there is no obstacle to the law not being adopted under the ordinary procedure.
Removal of the Radio-Television Slovenia leadership and vested interests
As already mentioned, the government of Robert Golob also argued, when adopting the Radio-Television Slovenia Act, that an urgent procedure with a severely limited possibility for debate was necessary, otherwise irreversible consequences for the functioning of the state would arise. Jerovšek believes that in this case, the democratic deficit was at least partially remedied, as the opponents of the law proposed a referendum, which resulted in the adoption of the law. The results of the referendum brought about a petition to initiate the procedure for reviewing the constitutionality of the amendment to the Radio-Television Slovenia Act. The petition was first signed by Dr Peter Gregorčič. The Constitutional Court discussed the petition yesterday but has not yet taken a decision.
All of this naturally raises the question of what the motives might be for adopting any of these laws under the urgent procedure. Why is this government in such a hurry when these laws do not resolve some objective circumstances but, as in the case of the Radio-Television Slovenia Act, even change political relations? Jerovšek replied: “The RTV Law was purely a political decision to remove the RTV leadership and management bodies and take control of RTV. The rationale was that it would be an independent television, but what they have written into the law shows that it will be a completely dependent RTV, which will be sympathetic to those who proposed the law. As for the bill on the temporary allowance for judges and prosecutors, there are vested interests behind this. It is obviously necessary for the government to ingratiate itself with prosecutors and judges or with the entire repressive apparatus. Those who are proposing this already know why. The Prime Minister had no legal basis for promising a 600-euro bonus.”
“The Prime Minister, like an emperor in a forum, proclaimed his decision to the people. Then, post festum, they proposed a law for the promise he made. At first, they probably did not even think that this would have to be regulated by law. Now they wanted to sanitise this behaviour after the fact, and with an illegal emergent procedure,” Jerovšek said, adding that the Legislative and Legal Service of the National Assembly also had serious concerns about the law. “The Legislative and Legal Service does not try to obstruct the work of those in power unless it is really necessary. Unless their decisions directly contradict the Constitution or the rule of law,” he explains.
What kind of democracy is this?
The opposition Slovenian Democratic Party (Slovenska demokratska stranka – SDS) recently sent out a press release to the media saying that the way the government is proceeding, i.e. the way it is tabling bills, is making it impossible for the government coalition to carry out quality parliamentary work. That they simply cannot prepare for sittings, that they cannot have quality debates, because there is simply no time to prepare. The former Constitutional Court judge explained that the opposition party’s complaints are justified because Article 44 of the Constitution speaks of the right to participate in public affairs. It is possible to participate directly, for example, in referendums, or through elected representatives. It further explains that if parliamentary proceedings are conducted in this way, i.e., under the urgent or fast-track procedure, this is contrary to Articles 1 and 2 of the Constitution. “What kind of democracy is this, if the Members of Parliament cannot debate, decide, make motions, comments, amendments, in a procedure that is somehow lawful, as provided for in the Rules of Procedure?” he wondered.
Ruling by law
To the final question of whether such precedents are causing us to slide further from the rule of law to ruling with law, Jerovšek said: “You could say that. It is a kind of autocracy of power that has no regard for any legal rules or rules of procedure, but rather pursues its agenda by bypassing democratic procedures with certain obvious interests.”