December, 2011 | SLEEPING WITH PENGOVSKY

Constitutional Court OKs Referendum on Family Code

The day many have dreaded, finally arrived: pengovsky is blogging again… 😉 No, seriously, this is bad news. The Constitutional Court finally ruled on the bid to disallow the referendum on the recently passed Family Code which – among other things – allowed same-sex weddings and adoption. In a 5-4 ruling, the court decided to allow the referendum bid to continue as potential defeat of the new code on the referendum would not create an unconstitutional situation.

Constitutional judges, an archive photo (source)

Obviously, all hell broke loose on the internets. The question of same-sex marriages and adoption is one of tolerance, diversity and general advance of civilisation. It is also a question of the general principle of rights of a minority being decided by a majority. Indeed, the debate on the issue in Slovenia is no different than anywhere else in the world. Or, if it is different, it’s only even more primitive, supremacist and laden with flawed reasoning and common sense, based on the elusive notion of “natural laws”. In short: the question at hand is why on earth should the majority decide on how and why should people love each other and have a family.

What the fuck happened?

On the other hand, we have the rule of law, the notion that constitutional rights can be executed under (more or less) the same standard and that all people will be treated more or less equally in similar legal situations. In this case, the question at hand was whether the referendum on the Family Code should be allowed or not. And the only way the court would ban the said referendum was for the government (which initiated took the case to the court) to show that the success of the referendum bid (i.e.: the rejection of the Family Code) would create unconstitutional consequences. It failed to do so.

It is all painfully simple, actually: What we had here, was not the question of a majority deciding on the rights of a minority. The legal right of same sex couples to marry and adopt children does not yet exist. One could argue that same sex couples have this right per se, but in terms of legal definitions, these rights are yet to be established when (if) the new Family Code comes into force. It is these future rights which were pitted against the existing constitutional right of the people to have a referendum on (almost) any given issue, provided they collect 40.000 signatures.

The catch

And ever since the whole question boiled down to this dilemma, the decision was more or less a foregone conclusion. Even more so, when it transpired (pengovsky failed to notice this) that the new code were to come into force a year after it would be published in the Official Gazette. Why this provision was put into the legislation in the first place, is beyond me. But fact of the matter is that a rejection of the law on a referendum only means that the parliament can not pass the same decision within a year. So, the government shot down its only potentially valid argument, because even if a “no” vote would somehow create an unconstitutional situation, it would only do so for a year. A year in which the provisions of the Family Code would not be operative one way of the other.

Furthermore, since the rights of same-sex couples to marry and adopt children were yet to be established, whereas the right to a referendum already exists, it is against the concept of the rule of law to suppress an existing right in order to establish a new one. Yes, this one is counter-intuitive, especially if – as the theme goes – all men and women are created equal and other than sheer narrow-mindedness, stubborn traditionalism and homophobia there is no reason why same-sex couples should not enjoy absolutely equal rights than their heterosexual counterparts. In fact, one could argue that the Family Code as a whole resolved an inherently unconstitutional situation, where same-sex couples were denied equal rights. But no one did that. Instead the government argued that a potential rejection of the Family Code would create (and not perpetuate) an unconstitutional situation. An even if it claimed “perpetuation”, the government would probably be overruled, as – technically – under certain circumstances, the court can allow same-sex adoptions under existing legislation.

Justice vs. Rule of law

Make no mistake. The backlash will be ominous. The “no” campaign spearheaded by Aleš Primc and his band of homphobic astroturf twats will naturally claim that this proves them right all the way and that the Family Code was declared unconstitutional. Various gods will be praised (for it was not only the Catholic Church which went against the Family Code. Luteran and Muslim clerics pitched in their two cents as well), politicians will once again take to the barricades of the clash of cultures and in terms of rhetoric we’ll be back in Medieval times before you know it.

But as long as we – as a society – adhere to the rule of law as the basic principle which governs interactions of our various rights, this is it. We may be unhappy about it (I sure am), but calling Constitutional Court names for upholding the rule of law (rather than bending it, as it – this must be said – did a couple of times), will get us nowhere.

Very recently, just prior to elections, the political right wing spearheaded by Janez Janša‘s SDS tried to differentiate between justice and the rule of all. In this, it came dangerously close to ideologies of various white supremacist groups in Slovenia (pengovsky has yet to write this up). At that a lot of people – yours truly included – went out on a limb to show just how dangerous and destructive a sentiment this was. And yet, here we are, a month or so later, with the more fervent elements of the left wing doing almost exactly the same. Just because you (me, we, whathaveyou) don’t like the decision of the court, it does not mean that it is inherently wrong. It’s just not what we would like it to be. Period.

Now what?

True, the institutions of the state are there primarily to protect the weak from the strong. In the big picture the weak got the short end of the stick this time around. But there are ways to go around this (albeit huge) setback. One is to change the constitution. This has been done before. Another way is to do your abso-fucking-lutely everything to help the legislation survive the referendum vote in the face of terrible odds. This, too, has been done before.

P.S.: I hate to be an I-told-you-so, but… I did tell you so…

Slovenian Elections: The Janković Upset

In what was described as a shock win by the Beeb, Ljubljana mayor Zoran Janković won yesteday’s early elections in Slovenia. His fledling party Positive Slovenia won 28.5 percent of the vote, narrowly beating Janez Janša and his SDS, which won 26.3 pecent. The turnout was around 65 percent.

The presumptive PM (photo by yours truly)

The upset was only hinted at on the last day of the campaign by the very last result of a tracking poll conducted by Mladina weekly, which did in fact note a slight downward trend for SDS. Every other poll missed by a mile. It wasn’t that Janković’s support surged all that much, but rather that Janša bled just enough votes to push Janković over the top. As it seems that the last few days were crucial, it can be said with a degree of certainty that Janša hurt himself too much by a) fumbling the question of his real estate, b) avoiding the last debate on state television and c) acting as if the election result is a foregone conclusion.

a) Documents

Janša couldn’t help himself. In what was essentially “game over” for Janković, he went on the offensive and pressed Janković (and by extention Pahor and Virant) to disclose their financial and real estate documentation. Borut Pahor and Gregor Virant obliged promptly, Janković – who was already under media pressure on this – dragged his feet, but did produce (almost) complete documentation, challenging Janša to do the same. The SDS leader – unexpectedly – came under fire himself due to somewhat misterious ways of his real estate deals and took much longer than expected to hand over his papers. And even after he did so, it turned out the package is incomplete (he published the complete documentation on his Facebook page early on the last day of the campaign).

More importantly, his party blamed a broken-down scanner for the delay in producing the papers which instantly brought about unpleasant memories of the Archivegate. Voters’ memory is indeed short, but some people seem to remember.

b) Debate avoidance

Both Janša and Pahor canceled their appearance on the last debate on RTVSLO (state television) opting to appear on cable-only Info TV instead. While Pahor’s motives are unclear, it was more than obvious that Janša did not want to face Janković for the third time in a week and in a setting, where he would have to share time with “lesser” candidates. It was a snub both to his fellow candidates as well as to the viewers, who had to settle for Patrick Vlačič (SD) and Zvonko Černač (SDS) instead. While Vlačič was his usual acceptable self, Černač perfomed poorly, being unable to go beyond buzzwords and the general SDS mantra. It was not a good conclusion to the otherwise professionally conducted SDS campaign.

c) Foregone conclusion

Pahor and Janša on Info TV was meant to generate the appearance of the outgoing and the incoming prime minister having a civil chat on the pressing issues, possibly undoing the damage Janša suffered during a mano-a-mano with Janković on the said TV station. This, however, was Janša’s crucial mistake. His demeanor throughout the campaign was one of calmness and composure. Janša was already meeting with labour unions, EU ambassadors and was receiving support from fellow right-wing party leaders throughout Europe (including ill-concieved support from the jailed Julia Timošenko of Ukraine and Victor Orban of Hungary). In the end, it might have done more harm than good, probably convicing some of those who would have otherwise voted for him to support other parties. Either because it seemed game, set and match for Janša, or because the whole thing spilled over into arrogance.

The aftermath

Janković won, Janša lost. But winners (in their own particular way) also include DeSUS (the pensioners’ party) of Karl Erjavec, who seem to be disaster-proof, regardless of the clowning demeanor of the party president and Christian Democratic Nova Slovenija of Ljudmila Novak, which scored the unprecedented success of being the first party in history of Slovenia to make it back into the parliament. There is certain logic to it, as it is against the general order of things not to have the Catholics in the parliament in a country which is nominally 57% Roman Catholic.

The same logic applies to the apparent losers of this elections, both liberal parties, LDS of Katarina Kresal and Zares of Gregor Golobič. Neither of them made it above the 4% treshold. Zares scored a disastrous 0.65 % of the vote, while LDS fared only marginally better with 1.46 %. This, however, will not stand in the long run and I fully expect the liberal/social-liberal option to make it back into the parliament. But we’ll cover that in one of the upcoming posts.

One party no-one will particularly miss are the nationalists of Zmago Jelinčič. Scoring only 1.80 % of the vote they’re down and out. We’ll see if that’s for good, though.

Also, technically Borut Pahor’s Social Democrats must be counted in the ‘losers’ column, since they’re down to 10 seats from previous 28. But given the criminally low ratings Pahor’s government was getting in its last year, the fact that the SD came in third does soften the blow quite a bit.

What happens next?

Obviously, Janković will have to go about forming a coalition government. We already noted the seat-divison for the top three parties. Citizens’ List led by Gregor Virant came in fourth with 8 seats, DeSUS gor six seats, ditto for SLS of Radovan Žerjav, while NSi of Ljudmila Novak got the minimum possible four seats. Two seats are, of course, reserved for MPs representing Italian and Hungarian minotiries.

The PM-presumtive (that be Jay-Z) said time and again that he will not form a coalition with Janez Janša no matter what (as in: he’d rather gnaw his arm off than have to work with the man who snubbed him in every way possible during his 2004-2008 rule). And even though he reportedly initiated talks with SDS as well, that can be – for the time being – regarded more of a good-will gesture than real negotiations. Which leaves Zoki with a couple of options to go by: First (and least likely) is to try to isolate Janša and invite just about everyone and his brother to form a coalition, including the NSi. But since the latter went head-to-head with the new leader of Slovenia on a couple of occasions, including but not limited to Tito Street (where the NSi won the case in the Constitutional Court), odds are NSi will sit this one out.

This leaves Janković (PS) with SD, SLS, DeSUS and Virant’s List (LGV) to choose from. Social Democrats are almost necessary as coalition partners as they bring in ten votes. Additionally, If the PM-presumptive wants to achieve at least some sort of across the isle consensus on reforms, he will have to include at least one of the pro-welfare-reform parties, either Virant’s List of the SLS (both centre-right). If he includes both of them, he already enjoys a comfortable majority of 52 votes (54 if minorities are counted in) in a 90 seat parliament. The other possibility is a Jankovic-Pahor-Virant-Erjavec coalition (again, 52 votes) or a slightly less comfortable PS-SD-DeSUS-SLS combo with 50 votes.

But given DeSUS’ anti-reform stance, the PS-SD-LGV-SLS seems most probable. This would also probably mean (in addition to Janković at the helm) Borut Pahor as foreign minister (a field where Zoki is noticeably lacking both in skills and personnel), Gregor Virant as either minister of justice or of the interior (possibly both, as there is talk of reducing the number of porfolios) and Radovan Žerjav as agriculture or transportation minister (portfolios which SLS usually wants to control).

Timetable

The State Electoral Commission will declare the final official results no later than 16 December, which means that the new parliament will convene for the first time on or around 24 December. After that the President of the Republic Danilo Türk will start consultations with parliamentary groups upon which he will make his nomination for the post of prime minister. While the consultations are a mere formality, they help to establish a clear picture of whether the PM presumptive can secure a necessary majority in the parliament.

And if all goes smoothly, Zoran Janković, a self-made-man of humble origins, born to a Slovene mother and a Serbian father in a backward village in Serbia, who moved to his maternal country at the age of 11 and continues to be mocked on account of his mixed roots to this very day, will be sworn in as the eight Prime Minister of the Republic of Slovenia.

The irony of course is not lost on Janša… If only he hadn’t had Janković removed as CEO of Mercator retail chain in 2005…

Slovenian Elections: Last Call

So, this is it. Election silence commences tonight at midnight and it’s hight time pengovsky wraps things up. This is why today’s tittage was rescheduled but tune in tomorrow (hint, hint :mrgree: ). Virtually all polls predict a decisive victory by Janez Janša‘s Slovene Democratic Party, with Zoran Janković‘s Positive Slovenia coming in second with about 10 percent gap. Further down the ladder, Borut Pahor‘s Social Democrats seem poised to finish third, ahead of Gregor Virant‘s Citizens List.

Poll numbers over the course of the campaign (see note at the bottom)

There are a couple of ways to look at this campaign. First, the fact that Top Four were reduced to Top Three. Gregor Virant crashed and burned early in the game and his Allowancegate was a gift that kept on giving, cutting him down from almost 20% to single digits. He just wasn’t up to it and went from bad to worse, not being able to stop digging even though he was in a deep hole already. In contrast, neither Zoran Janković nor Janez Janša did a particularly good job at explaining discrepancies in their financial and real estate reports but seem to have suffered very little in the polls (until today, that is). This can to an extent be explained by the fact that their voters are rather devoted to their respective political leader, but more likely it has to do with their fierce refusal to admit to have done anything wrong, even though Janković failed to declare a small part of his real estate to the anti-corruption commission (as in: did not tell he owns the wood). Also, he was anything but quick on his feet to disclose his financial obligations, but in the end did just that.

His main opponent, however, got into a lot of hot water demanding everyone else discloses their accounts and property, but then dragged his feet doing so himself. In fact, just before yesterday’s debate on POP TV his party claimed that their scanner broke down. Now that SDS and scanners don’t mix was well demonstrated in the case of creative photocopying and sure enough it turned out that this time too not everything was fine and dandy with Janša’s documents. The whole thing was revolving around how the SDS leader bought, sold and managed his real estate and it turned out that the initial contract, where he sold his existing property and bought an elite apartment in Ljubljana is fishy, with the buyer (a construction company which won many government contracts including construction of defence ministry building during Janša’s days at the ministry) being overly generous to the point of making economically unsound decisions. Re

But today, Mladina weekly, which is conducting a tracking poll over the last week, detected a marked drop in SDS’ ratings, virtually unchanged result for Janković and a rise for Social Democrats. According to this Janković is trailing Janša by only 3,6 percent. And that means that a lot of people will have a nervous 44 hour-wait.

Looking at it from another point of view, a few permanent fixtures are on the brink of dropping out of the parliament. LDS and Zares are registering low single digit percentage points and their only saving grace can be the fact that with such low numbers the margin of error is relatively huge and that it is possible that their voters are simply not detected. We’ll know for sure come Sunday. But even if both parties drop out, this will not last. Just as with Christian Democratic NSi of Ljudmila Novak, which dropped out in 2008 and looks poised to make it back, the (social-) liberal option has its rightful place in the parliament and when the pendulum swings the other way, they will most likely make it back over the 4%. But they are trying very hard to prevent dropping out in the first place. Zares of Gregor Golobič is throwing everything it has into the field (literally, they’re running a grass-roots campaign) while LDS of Katarina Kresal is beating the human-rights drum, reminding people of the 2004-2008 Janša government.

Another point of view is the dichotomy between fluff and stuff. There were some platform points that stood out: emergency financial legislation, TEŠ 6, pension and labour market reforms, some notable successes of the outgoing government (Arbitration Agreement, rectifying the issue of the Erased, Family Code, although pending a decision of the constitutional court) and so on. On the other hand, this was probably one of the most vicious, brutal and personal campaigns in recent history. Families were dragged through the mud, wives were interviewed standing next to their husbands during a debate, names were called and ad hominem attacks were the norm, especially by rank-and-file members. As per usual, journalists (yours truly included) were not spared.

But perhaps the single most defining moment of this campaign was emergence of social media as an important tool in the campaign. For the first time campaign-related tweets were published in near real time during debates (on POP TV) and the inflation of politicians, their supporters and fake accounts generated to create the necessary buzz and hate speech was – well – admirable (in a perverse sort of way). Also, social media – Twitter in particular – offered a rare insight into the campaign mindset. 140 characters are just enough to get the message across without too much spin and one could see how some politicians who usually act normally (even though they might not agree with you) went positively bananas, denouncing everyone who didn’t dance to their tune. God forbid someone actually pointed out basic flaws in their politics. On the other hand some politicians embraced Twitter and are actually using it to broaden the scope of the immediate debate. Then, of course, are also those who block other users to keep a neat and embarrassment-free timeline.

At any rate, the run is over, pengovsky decided on his vote long before the campaign began and all that’s left to do is to go out and vote. Whoever wins will probably go belly-up (politically speaking)relatively soon as the clusterfuck this country and this continent are headed into is worse than anything this generation has ever seen. We’ll probably have another elections in 2014. Provided there will be anything left to vote on.

So, tune in tomorrow for a generous helping of Friday Foxies and expect exit poll results on Sunday, some time after 7 pm local.

N.B.: Graph data is compiled from different polls with different sets of questions and different samples, so it is not directly comparable from a scientific point of view. Data still available as .xls file for download.

P.S.: Commenting is closed for this one until Sunday evening, but you can still place trackbacks and pingbacks to this pots.