With 61 votes in favour and 25 against, MPs recently adopted a decision to initiate the procedure for amending the Constitution, which transfers the power to appoint judges from the National Assembly to the President of the Republic and changes the composition of the Judicial Council. We spoke to former Constitutional Court Judge and current Supreme Court Judge Jan Zobec about the implications of the possible new procedure for appointing judges, and he believes that it will further close down the judiciary, make it even more non-transparent, and at the same time nullify any public scrutiny.
The proposed amendments to the Constitution foresee that judges would no longer be elected by the National Assembly but appointed by the President of the Republic, on the proposal of the Judicial Council. The Judicial Council, which would decide on proposals for the appointment of judges by a two-thirds majority of all its members, would have 15 members instead of the current 11. Seven members would be elected by the National Assembly – by a two-thirds majority of the members present, and they would be selected from among university law professors, lawyers and other established jurists, and eight would be selected from among the judges themselves. The members of the Judicial Council would be elected for a term of six years and would not be eligible for re-election. The President would be elected by the members from among themselves for a term of three years. The Judicial Council would be governed by a special law. Two thirds of the Members of Parliament present at the relevant session would have to vote in favour of the adoption of this law.
The key point, as Supreme Court Judge Jan Zobec pointed out, is that in the current system, the choice of a candidate could be debated or rejected, whereas the envisaged arrangement means that the President of the State will have only a “stamping” function. Zobec believes that it would be advisable to professionalise the office of a member of the Judicial Council, in the sense that, in addition to the above-mentioned office, members of the Judicial Council should not hold the office of lawyer or judge, as this would undermine their credibility and impartiality and would also create a conflict of interests.
“The negative consequence of this is the further strengthening of corporatism in the judiciary, the further strengthening of judicial oligarchies and the closure of the judiciary and the accountability of the judiciary to itself. The judiciary will be even more enclosed in its own bubble, the checks and balances mechanism will be even more weakened or, as it were, will no longer exist, because the point of the separation of powers is not that each power, separated in its own bubble, should be unaccountable to the other, but that the separation of powers is precisely about the fact that they should control each other, be held responsible by each other,” former Constitutional Court Judge Jan Zobec explained in his opening remarks.
Judges elected by the National Assembly have the highest form of legitimacy
Zobec went on to argue that this will reduce the legitimacy of judges, because “judges elected by the National Assembly have the highest possible legitimacy in our legal environment, because the National Assembly is the highest representative body of democracy.” Thirdly, he pointed out that the Judicial Council is a rather non-transparent body, which it should not be. Debates are held behind closed doors and in closed sessions, which eliminates public scrutiny, while candidates with concerns are publicly exposed and become the subject of public discourse. Zobec also added that in this case, the President of the Judicial Council can also refute any concerns. “The discourse takes place in full view of everyone, but that is not the case for the Judicial Council, at least not that we know of.”
The “depoliticisation” will not save the judiciary
According to Zobec, the government wants to “depoliticise” the judiciary. This is the mantra that the Golob government has been repeating since it came to power. The Supreme Court Judge said that when he hears the word “depoliticisation”, he thinks of the Socialist Alliance of Working People of Slovenia (SZDL) and the previous undemocratic regime, where everything was also “depoliticised”, explained Zobec, who believes that even this “magic” word, as he jokingly calls it, will not save the Slovenian judiciary, because the problem of the judiciary, as he explains further, “is not the interference of politicians from the outside, but from within the judiciary, and this is what is ruining the independence of the judiciary.” Zobec also argued that judges are not under pressure from the executive and the legislature, but from judicial oligarchies within the judiciary, which form various lobbies and networks, which in turn exert various pressures in the form of “carrot and stick” mechanisms.
In all cases, the Judicial Council is the key
Zobec believes that the composition of the Judicial Council is influenced by the oligarchic structures in the judiciary, whose candidates “usually get the majority.” They also have a network of their own people who go from judge to judge and persuade them who should be elected, threaten them a little, and so far, they have still managed to shape the Judicial Council in their own way. At the same time, he explained that in both cases, the word of the Judicial Council is crucial, because it is rare for the National Assembly to reject a proposed candidate. But it has happened before, and so far, it has been a possibility. “There was a debate about it, the candidate was discussed, some disputed it, it was done publicly, with arguments, the way things are done in a democracy,” Zobec explained, who also pointed out that the President (if the decision were to be delegated to him or her) will not hold a discussion with him or herself, as this will only be one of their protocol duties.
He believes the solution is the professionalisation of the Judicial Council
“In the current system, there is still something left for the National Assembly, it can also reject a candidate after a debate has taken place, whereas I cannot imagine the President rejecting a candidate,” he said. He sees the solution in the professionalisation of the Judicial Council and believes that it is not right to have “lawyers sitting on the Judicial Council, which is also incompatible when they are serving on the Judicial Council. In the morning, he will sit with a judge in a hearing, and in the afternoon, he will decide on his promotion,” Zobec added.
Tanja Brkić
