May, 2012 | SLEEPING WITH PENGOVSKY

Administrative Reform Packages, pt. 4: On Referendum

Aaaand we’re back. Well, shit is going down and Ljubljana mayor Zoran Janković seems to be in quite a lot of hot water as of today, but we’ll leave that for another day (i.e.: next week), while we take a look at yet another proposal to change the constitution which was floated earlier this week and which is yet another example of systemic changes aimed at “resolving” very specific issues: the legislation on referendums.

What we’re dealing here with is of course a reflex reaction. You’ll remember that moves to change the legal provisions for calling a referendum have been floated before, most notably by the now-non-parliamentary Zares, but this time around the impetus for yet another round of changes to the constitution came as a result of the policemen’s union collection enough signatures to start referendum procedures on the austerity legislation which the Parliament passed about two weeks ago and which more or less cuts public sector expenditures, mostly by reducing the public employees’ pay checks. Given that Slovenian cops are not all that well paid (basic salary of a beat cop reportedly starts at a measly € 860) it it little wonder that the copper’s unions went all out and wanted to call a referendum on the issue. This seemed to have sobered up the ruling coalition which immediately floated the idea of changing the provisions for a referendum and which seems to have gotten the sympathetic ear of the opposition.

The problem is that it’s mostly bollocks.

Namely, this particular attempt at changing the constitution was concocted by none other than the president of the parliament Gregor Virant and provides for some pretty harsh limitations on who can call a referendum and for what purpose. Thus Virant proposes that the referendum procedures can only be initiated by 40.000 votes signing a petition (up from 2500we today), a majority in the parliament (up from a third of MPs,) that the National Council be stripped of the authority to call a referendum and – last but not least – disallowing a referendum on fiscal, monetary and human rights matters. Also, a 40% quorum for the validity of the referendum is proposed. Well, let’s take them apart one at the time:

Disallowing the referendum

Very fancy and in the current political climate where referendums appear to be a dime a dozen also very likeable. However, also mostly ineffective. You see, constitutional provisions all carry the same weight. Sure, there are differences in importance, interpretation and especially execution. For example, Chapter Two of the constitution, covering human rights and personal liberties is executed based directly on the constitution, while numerous other provisions require a legal framework to become effective. But on the whole it is not as if some constitutional provisions are more constitutional than others. Therefore, even if the parliament were to disallow a referendum on certain issues, there’s no guarantee that the said referendum will not be held as the constitutional court will always have to decide if the new constitutional provision is not denigrating some other provision.

Case in point being the idea of “forbidding referendums on human rights”. I’m sure Virant meant well, but it really is bullshit. Referedums on human rights can not be held as it is, I mean, the constitution doesn’t say that anywhere specifically, but since human rights are executed based directly on the constitution, you cannot change or limit them with a mere law. You may very well ask what then of the Family Code (basically a human rights issue), which – as you’ll remember – was defeated on the referendum. Well, take a look at this post. It was about future rights of same sex couples (to form civil unions and adopt children of their partners) against existing rights of petitioners for the referendum (to, well, call a referendum).

Things would be marginally better in case of preventing referendums on financial matters, but – again – such a provision would inevitably be pitted against other constitutional provisions.

Emasculating the National Council

Yes, pengovsky likes the sound of that as well 🙂 In fact, this is not a bad idea, but only a week or so ago Gregor Virant went ga-ga over abolishing the National Council altogether so he really should make up his mind. But taken at face value this is not really such a bad idea. As pengovsky explained in the previous instalment of this primer, the National Council is nothing but a conglomerate of special interest which has precious little to do with popular representation. Hence stripping it of the power to call a referendum is the least that could be done.

Raising the bar for MPs

As things stand now, thirty MPs can call a referendum. A third of the parliament usually (but not necessarily) means MPs of more than one political party, which means at least minimal level of coordination between the parties. Technically, this is an instrument allowing a substantial minority of MPs to force a nation-wide check of the parliamentary majority‘s decision. Raising the bar to a majority of MPs (press reports do not specify whether Virant meant an absolute or relative majority) therefore defies the point. If you can muster a majority of votes to call a referendum, why not simply change the law in question? Or prevent it from being passed in the first place.

This provision does not make sense. In fact, pengovsky suspects that it is only a thinly veiled attempt at stripping MPs of the right to call a referendum as well. Which is wrong. I know it sounds nice and squishy and there isn’t a government in the world which wouldn’t love to have a toothless opposition. But should this provision be adopted it will backfire with a clusterfuck of epic proportions.

The parliament is the representative body of the sovereign, i.e. the people. Therefore it must have all the powers the people have. Including the possibility for a substantial (note the adjective, it will become important later on) minority to call a referendum. In order to avoid the possibility of a tyrannical majority, the minority must have instruments at its disposal. I know these tend to get abused, but if this democracy thing is to work, such instruments simply must be in place. And – truth be told – not all that many referendums were called by the thirty MPs in the first place. Most were called via petitions, most of them party sponsored.

Increasing the required number of signatures on a referendum petition

OK, so the parliament passes a stupid law and the opposition will not or can not do anything about it. What do you do? Start a petition and collect signatures. If you collect enough, the law in question is put on hold while you get your thirty days to collect 40,000 verified signatures, deposited ad one of the 53 administrative units throughout the country. The thing is that to initiate this procedures you only need 2500 non-verified signatures which you can collect anywhere and just present them to the president of the parliament. These signatures are then compared to the national database of residents and if all checks out, you get your thirty days. Easy. In fact, it’s too easy.

Which is why of the entire poppycock proposal this particular provision makes the most sense. Collecting 40.000 signatures is marginally more difficult than getting just 2500 of them. As things stand now, plenty of organisations are rumoured to have these signatures collected “just in case” and use them whenever they see fit. Raising the bar to 40.000 non-verified signatures would alter the game just enough to deter some of the more crackpot referendums we’ve had in the past twenty years.

And while we’re at it, why not raise the number of verified signatures needed as well? I mean, getting 40.000 people to come to the administrative unit, fill out a form, present a proof of identity and submit to a computer check is a lot. But still, it’s only 2,5 percent of eligible voters. Not really a substantial majority, no? Pengovsky sees no harm done if the bar would be raised to 5% or 80.000 verified signatures. Hey, if you want to derail a legislative process, you might as well work hard for it.

Instituting a 40% quorum

And now the trickiest of them all. Virant again floated the idea of quorum for the validity of the referendum. Meaning that the result of a referendum would be valid only if the turnout was at least 40%, the idea being that all the crackpot referendums such as the one on the law on returning monies people invested themselves into building telecommunication infrastructure (don’t ask). Again, this looks very appealing at first sight. But the idea is inherently wrong and could even in the short term do more harm than good. And for four reasons:

One: in a democracy, you’re allowed to vote. In fact, you’re encouraged to do so. Be an active citizen (at least every now and then). But you don’t have to. Your decision not to cast a vote and therefore leave the decision to others is perfectly legitimate. Sure, there are consequences one way or another and it is always better to vote than not to, but you don’t have to. However, by setting up a quorum, people who don’t vote are in a position to passively deny people who do to have their vote count. They are the ones who went to the trouble of casting the vote and if only thirty percent do so. Why should those who choose to remain passive be allowed to decide the fate of the law in question. Why should, in fact, their non-vote count more than the vote of those who actually cast it?

Two: quorum is thought to ensure the legitimacy of the vote. I.e.: if enough people cast their vote, than the legitimacy of the decision is ensured. But why forty percent? Why should a referendum with a 40% turnout be any more legitimate than a referendum with, say 39% turnout? Even more: what if (and this is not an impossible scenario) in a 40% turnout the yes/no vote is split 55/45 and in a 39% turnout the split is 80/20? In the first case, about 375,000 people (the 55%) voted in favour, whereas in the second case as much as 530,000 voted in favour. But under the “quorum rule” the first result is valid while the second is not, although in terms of absolute numbers, many more people voted in favour in the second referendum. OK, so these are hypothetical borderline scenarios, but it is exactly these kinds of situation which test the functionality of any given system.

Three: quorum is suppose to prevent abuse of referendums for political reasons. In fact, it would encourage those very abuses. Namely, more often than not a referendum bid became the tool of last resort aimed at disrupting government policies. Sometimes is enough just to call a referendum to derail or at least severely impede policy making and execution. With a quorum, referendums could be called en masse just to derail a law in question while the petitioners need not really care about the result itself. Enacting a quorum is akin to giving various attention seekers and miscretants a sandbox, inviting them to fool around with the very basics of popular democracy and at the same time insulating them from political, legal or public-opinion consequences, because, hey!, the turnout just wasn’t there. Since the average cost of a referendum held is about four million euro, that’s a pretty expensive sandbox. And who wouldn’t want to play in such a sandbox?

And, finally, four: proponents of the quorum idea say that even the parliament needs a quorum for its vote to be valid. Which is true. Before casting the vote, MPs check in and only then are they able to vote and the vote is only held if more than half of the MPs are present. They can also abstain and still maintain the quorum. But if you want to draw the comparison with popular vote, you soon realise, that the voters are always present, therefore the quorum of the people is always achieved. the moment an inviation to the polling station is sent out the state electoral commission, this the equivalent of the voters checking in and it is for them to decide whether they vote yes or no or whether they’ll abstain.

Get rid of it. Expeditiously.

Thus, setting up a quorum for validity of a referendum instead of clearing it, muddles the picture even more than it already is. With all of this in mind, one comes to a conclusion that it would be better if this idea were scrapped altogether, since the only sensible proposal this particular “reform package” is the one on raising the bar for the number of signatures needed to call a referendum. Everything else will do more harm than good.

How Borut Pahor Is Turning Into A Slovenian Joe Lieberman

Slovenian Social Democrats are up for a long-overdue post-election convention on 2 June and all signs point to a bloodbath. Borut Pahor is facing multiple challengers and the next two weeks will probably see precious few punched being pulled. Of the three, Pahor’s main rival is Igor Lukšič, party heavyweight and ideologue who used to be the brains behind Pahor’s rise to power and served as minister of education in the previous government. Lukšič was removed from Pahor’s inner circle quite unexpectedly in a small scale party purge soon after the 2008 election victory and little love was lost between the two since then.

Borut Pahor never really came to terms with the results od 2011 parliamentary elections. What by any measure was a defeat of epic proportions, he strove and still strives to present it as a “good enough” result, saying that the SD got 10 percent even though some pre-election polls showed as little as three-point support. But fact of the matter is that the SD would score in the vicinity of ten percent even if it were led by a ventriloquist’s puppet Which, incidentally, is how many people see Pahor in the first place.

Pahor was not a bad Prime Minister. In fact, he and his government had the right instincts and addressed the correct issues. The arbitration agreement with Croatia alone is enough to give the man a Medal of Honour. The fact that he tried to offset the first onslaught of the worldwide economic meltdown by raising the minimum wage while the business sector cried murder was a gutsy move. And to his credit, his government came up with a set of sweeping labour market and pension reforms, which – as both of you readers know full well – went down the drain courtesy of the unholy alliance between the right-wing opposition and the labour unions. But good ideas are a dime a dozen and after suffering the traumatising defeat on the super-referendum vote, Borut Pahor was never able to recognise that the buck stops with him and never took responsibility. Yes, the unions fucked him over (paying dearly for it under current Janša administration). Yes, the then-opposition went to epic lengths to undermine any and all policies he came up with and relentlessly beat the drums on various cockamamie scandals which turned out to be nothing but elaborate character assassinations. But at the end of the day, it was Borut Pahor who was at the helm of the country and he counted on everyone else to help him steer the ship while he was running out of ideas on what to do next. And this is where he reached the point of no return.

When Pahor Met Merkozy

When his tenure was nearing the terminal stage, he liked to use the phrase “Franco-German train” which was suppose to mean that Slovenia should follow France and Germany in their economic policies. In fact, he’d often say “either we’re on that train or we are no more”. This Franco-German railway arrangement soon thereafter became known throughout Europe as Merkozy, shorthand for hardcore austerity and an all-out neoliberal agenda. Which is what Pahor bought into as the lack of vision on his part settled in completely and he became preoccupied with his legacy and immediate political future. Bottom line: No matter how often he quoted Churchill, unlike the old English fart Borut Pahor was not a PM fit for a time of crisis.

This became painfully obvious just prior to elections, when (against many an advice) Zoran Janković went national and the obviously-outgoing PM went ballistic, concocting a phrase “behind-the-scenes uncles” which supposedly handled Janković, instructing him to take over the reins of the political left-wing from Pahor. This line of reasoning conveniently forgot to take two things into account: a) that Pahor never really steered the left wing (although he wanted to) and b) that by that time Janković was way beyond anyone’s control including that of former president Milan Kučan who (pengovsky has it on good authority) privately advised Janković not to enter national politics. Such reasoning pushed Pahor ever more towards Janez Janša and – augmented by his chronic and notorious need for compromise – played a key part in him not lifting a finger when Janković was tripping over his own legs trying to clinch the PM post (and failing miserably).

Step by step, inch by inch, Borut Pahor was nearing a position where his positions were becoming very similar to those of Janez Janša and his government. Most notably on the fiscal rule, which apparently was the straw that broke the camel’s back and caused a very public rift within the party and its parliamentary group. As a result. the constitutional amendment enacting the fiscal rule does not have the necessary 60 votes in the parliament, but staying true to his reality-denying self, Pahor maintains that eventually he’ll deliver the necessary votes, allowing the government of Janez Janša to pass the amendment.

Falling Down: “I’m the bad guy?!”

Now, whether or not this is just a matter of political physics (distancing from one object inevitably draws you nearer to another object) or a carefully executed masterplan remains to be seen. With Pahor’s modus operandi to date, this would indeed seem more like an accident and I can totally see him as Michael Douglas in Falling Down, when he finally realises what he’s done and says “You mean, I’m the bad guy!?” But he’s not there yes. In fact if one were to draw a parallel, one could compare Borut Pahor to Senator Joe Lieberman, who – as you’ll remember, used to be the next Vice-President of the United States, but then gradually gravitated towards the Republican party, at one point actually addressing the GOP convention in 2008, supporting John McCain against Barack Obama. Interestingly enough, Pahor did in fact make several appearances at various right-wing pow-wows but thus far limiting it to addressing think tanks and affiliate organisations. Why?

Well, our why-can’t-we-all-just-get-along-and-love-me top-tier politician is widely expected to run for President of the Republic in the upcoming election. Which is somewhat weird, given that the incumbent Danilo Türk is of left-wing provenance and was more than once a target of a smear campaign, case in point being Archivegate concocted by the SDS. Given that Janez Janša already put forward his candidate Milan Zver, MEP, Pahor running for the highest office in the country seems illogical. But then again, nobody ever accused him of being logical.

You Want Me In That Office. You Need Me In That Office!

You see, Pahor was on the brink of running for that very same office in 2007 and went through a very tragicomic and very Pahor-like episode of public soul-searching including admitting on live television that he simply doesn’t know what to do. He was eventually persuaded by his inner circle to take a pass and go for the PM spot a year later. Which he did and succeeded. But his overtures to the political right wing, provided that there is at least a tiny bit of logic behind them suggest, that he wants a crack at the job and he wants it now. Which is why he is reluctant to criticise Janša with anything harsher than “we don’t always see eye to eye”. This would also imply that he has (or thinks he has) some sort of a deal with Janša on this issue.

But if that is the case, his clinging to party leadership is all the more illogical. True, it doesn’t say anywhere that a sitting party president can’t be the head of state, but of the few high standards that were set in Slovene politics, a non-party president is one of them. Milan Kučan, Janez Drnovšek and Danilo Türk, the three individuals holding the office to date were either unaffiliated with any party (Tűrk) or relinquished their active party roles prior to or upon assuming office (Kučan and Drnovšek). Pahor, on the other hand, is fighting tooth-and-nail to continue as the top dog of the Social Democrats and it would make little sense to quit the job only months after the convention. Provided of course that he’d keep the party job and then win the presidential election.

None of the two are certain, mind you. OK, his chances of surviving the in-party challenge are marginally better, but a lot can change in the two weeks. Fact of the matter is that the party is split, especially those senior party members who can throw some weight around. The parliamentary group and Borut Pahor more often than not appear to be two different items and the two things that work in Pahor’s favour are the fact that there are three challengers: former minister of education and party ideologue Igor Lukšič, former minister of transport and the “cool guy” of the crowd Patrick Vlačič and a former member of National Council Zlatko Jenko. This of course practically ensures that the opposition vote will split at least two if not three ways.

Challenge For The Challenger

Of the three, Lukšič is the only one who is capable of mounting a serious challenge. He’s an old party hand, knows Pahor inside and out and was with the party through thick and thin. Which buys him quite a lot of clout. He’s also a very harsh critic of austerity measures and recognises that the left as a whole needs to reinvent itself. His problem is that he’s no good at sound-bites and sometimes has trouble getting the message across. Which may be Pahor’s second saving grace. The current SD president has neither the results nor the content to continue in his capacity. But he just might. It’s not that Lukšič doesn’t know the inning and the score, it’s just that he has trouble hitting the home run. And as we’ve seen time and again, “close” doesn’t cut it. We’ll see if Lukšič can get his act together in the next two weeks.

As for his implied presidential ambitions, you can bet your ass that Janša will once again try to screw him over and clinch the office for a right-wing candidate for the first time in history of this country. The scenario is farily simple: First, he’d enjoy seeing Pahor take on Türk, splitting the left-wing vote down the middle, thus increasing chances of Milan Zver making it to the second round, possibly facing Pahor. Should that happen, a lot of left wing voters would probably stay at home in protest during the second round of the vote, practically giving the victory to Zver. And even if Pahor won, Janša would be only marginally worse off, since Pahor would (as per custom) go above and beyond the call of duty to indulge Janša over and over again. And if somehow both Pahor and Türk made it to the second round, Janša would obviously support Pahor, achieving the same result.

In fact, the only situation Janez Janša wishes to avoid in the presidential election this autumn is a face-off between Danilo Türk and Milan Zver, be it in the first or the second round. And Borut Pahor seems to be working hard to prevent that from happening.

P.S.: Many apologies for not posting in over two weeks. Again, things to see and people to do…

Administrative Reform Packages, pt. 3: On National Council

It’s been a while since pengovsky wrote up an instance of the constitutional overhaul the ruling coalition went about more or less from Day 1. You can refresh your memory here, here and here if you need to, but the item on today’s menu is the proposal to abolish the National Council. Funny thing is, pengovsky is about to break into the Mipos Dance of Joy over it, although the big honchos are doing it for all the wrong reasons.

National Council (source)

Namely, Gregor Virant‘s DL (formerly DLGV – they’ve dropped ‘GV’ some weeks ago), chief proponent of the move claims that the National Council is an oboslete institution, adding that the second chamber of the parliament is usually found in federal countries and is as such unncessary in a unitary Slovenia, costing money but adding little of value. Well, I’m sligtly sad to say that on this issue Gregor Virant is full of shit.

The current president of the parliament, former minister for public affairs, former state secretary (right-hand man) to the minister of the interior and a professor with the Faculty for Administration know full well that the National Council is not some cockamamie piss-pot institution but a virtually unckecked bastard of an instituion which weild a rather hefty arsenal of powers for which it has no clear mandate. Never has and never will. Among others, the National Council can use the so-called “deffering veto”, by which it can send a law back for another vote in the National Assebly (parliament propper) where it needs an absolute majority (46 votes) to be confirmed, even if it needed only a relative majority the first time round. But even more importantly, the National Council can call a referendum on a law with a simple majority of 21 counclimen (out of 40).

The problem is that none of the councilmen are elected representatives of the people. Rather, they represent special interests. No, really. They literally represent speical interests. Four representatives of employers, four of employees, ditto for farmers, crafts and trades, and independent professions, six councilmen representing non-commercial fields and twenty-two (22!) representatives of local interests. Need I say more? I do? OK…

As with most old democracies (and in this respect, Slovenian democracy is aging fast), the decision making process is ever more initiated and to an extent controlled by some sort of special interest and ever less by the general public. This in it self in not necesarily good or bad. As basic relations in a society are settled, for the time being, at least, other, more specific questions arise, where general public is less keen to take interest (a great manifestation of not-in-my-back-yard-syndrome). Thus special interests come to the forefront, be they local, regional, business, industrial, whathaveyou. The problem is, however, that – when left unchecked – special interest can not only act to bypass the common good (the interest of the public, if you will) but can also act squarely against it. A classic example of this would be drilling for oil in Alaska. Or, if you want sometihng closer to home, liquid gas storages in the Gulf of Trieste, just off the Slovenian Adriatic coast.

Ideally, the parliament acts to limit these particulars or find common ground between special and public interest. Now, we all know that is seldom the case, especially with specific pieces of legislation (case in point being the shooting-down of the media law near the end of the previous term, courtesy of a would-be media baron). But the point is that the parliament can and should act in the public interest. The thing is that in case of Slovenia, the legislative process can be (and often is) plagued by special interest not just at the bottom (during drafting period) but also at the top, after the parliament has passed a law and is up to the National Council whether to confirm it or enact the “deffering veto”. In short, under current system, special interest squeezes public interest from both sides, which is a) undemocratic and b) totaly unhealthy in the long run. Not to mention the fact that over the course of the last twenty years, sucessive National Councils and especially their presidents have tried ever so hard to win the status of a full-blown second chamber of the parliament, if not in theory, surely in practice.

Thus, the National Council is a far cry from an obsolete and unimportant institution as claimed by Gregor Virant and politically icreasingly lonely leader of Social Democrats Borut Pahor. Rather, it is a residual element of a corporativistic mindset which Slovenia (let’s be honest here) has never completely done away with, no matter the political option in power. As such, the National Council is in fact a long-term threat to democracy of this country. It is because of that that it must be abolished sooner rather than later. Sure, the current government (with the notable exception of Radovan Žerjav and his SLS who oppose the move) is trying very hard not to mention the elephant in the room and is making sorry-ass excuses as it goes along, but right now the problem is with the opposition. Unfortunately, Positive Slovenia of Zoran Janković is trying to have the cake and eat it by proposing modification to the role of the Council, but stops short of supporting complete abolishment. Thus one of the few constitutional changes which would have made sense (and there really are only a few of those) both in long- and short-term (I’m sure no-one would mind one less possibility for calling a referendum) looks dead on delivery.

BTW: if Slovenia ever gets around to establishing regions as the definitive layer of local self-government (stripping municipalities of much of their powers), we might consider the parliament getting a second, regional chamber. But we’ll cross that bridge if an when we get to it.