Dismantling Checks and Balances

News of Lilijana Kozlovič resigning as minister of justice earlier today, or to be precise, the reason for her resignation is yet another proof of what is euphemistically put as “democratic backsliding” in Slovenia. Better described as an increasingly authoritarian rule, the waste Marshal Twito is laying to the system of checks and balances is massive. It will also likely outlast his regime.

Clip-art bearing likeness to Janez Janša, giving finger to the system of checks and balances.
A clip-art bearing suspicious likeness to PM Janša (source)

Given enough time, many fuck-ups of Janez Janša’s third government will be reversed or corrected. The economy will pick up. Various health, social, and educational sub-systems will pull back from the brink. But over the past year or so, the entire system of democratic norms and institutions was put under immense strain, both in terms of baseline behaviour as well as shifting the legal balance of power. If either of these stay the norm – and chances are, they will – Muddy Hollows will be in deep shit regarding the future of its democracy.

Broadly, there are two aspects to this: one overt and brazen, the other more hidden and insidious. The former mostly takes the form of attacking the media, bullying adversaries (political and otherwise) and blatantly ignoring basic democratic decencies. The latter, however, consists of sustained attempts to redraw the basic rules of governing.

Starting with the latest development, the resignation of justice minister Lilijana Kozlovič (SMC) can only be a surprise if you have been living under a rock that actively blocked internet coverage. The only real question is what the fuck took her so long.

European public prosecutors, derailed

To put a long story short, Kozlovič nominated a pair of prosecutors for the post of European delegated prosecutors. Essentially, these people will serve as the local arm of the newly-formed European Public Prosecutor’s Office. Apparently, PM Janša did not like Kozlovič’s picks for the post and refused for months on end to even put it on the government’s agenda, pressuring Kozlovič to make a different choice.

This brazen disregard for basic democratic concepts such as prosecutorial independence has led to all kinds of shit flying. Mostly in the direction of the Glorious Leader. It further cemented his reputation as an illiberal fellow traveler to the likes of Jarosław Kaczyński and the Hungarian Óverlord.

Marshal Twito never publicly gave a reason for nixing what would under normal circumstances be a mere formality. The speculation is that he holds personal grudges against the two nominees. Because it is only natural that the prime minister should abuse the power of his office to wage personal vendettas. Or something.

But while Kozlovič refused to budge, she also refused to be proactive in getting the nominees appointed. This provided for some grotesque TV moments, where Kozlovič literally ran out of text when asked what she intends to do about the entire shituation.

But trampling all over the principle of the prosecution’s independence is only part of this particular story. The other is if and when the Glorious Leader intends to nominate Kozlovič’s replacement.

Ignoring the parliament

Janša’s is a minority government right now. And even though he only needs a plurality of votes to appoint a minister, the opposition can plausibly frustrate that effort. That would force Marshal Twito would to spend a considerable amount of political capital (which he sorely lacks as it is), to fill the void.

This begs the question whether try and pull the same shit he did about a year ago with minister Hojs.

(UPDATE: Janša already asked SMC boss Počivalšek to come up with a nominee. No doubt, the PM will suggest a name or two. Be that as it may, this makes the above scenario slightly less likely)

A refresher for both readers readers of this blog. Back in July last year, minister of interior Aleš Hojs tendered his unconditional resignation. But PM Janša decided to ignore it and never formally appraised the parliament of the resignation. As if it was the Glorious Leader and not the parliament who appointed Hojs in the first place.

This sort of procedural ratfuckery has become par for the course under the third Janša government. When minister of health Tomaž Gantar resigned, Marshal Twito had the temerity to float the idea of “rotating” this portfolio between remaining ministers in three-month intervals.

In the end someone apparently explained to him that a stunt like that is a direct breach of the constitution. That, however, is obvious even to a drunk first-year student at a privately-owned Slovenian law faculty.

So the mere idea of pulling shit like that hints that the Glorious Leader and the concept of democracy don’t really have a close relationship.

National Council practically self-abolishes

As if that wasn’t enough, early in the pandemic the National Council, the would-be second chamber of the Slovenian parliament forfeited its constitutional power to deploy a “deferral veto”. This way, the Glorious Leader has a free pass on whatever legislation he rams through the National Assembly (colloquially referred to as “the parliament”).

Pengovsky has a long history of calling for abolishing of the National Council. Its pandemic-induced dereliction of constitutional duty only reiterates the point. Doubly so since the constitutional court stepped in and threw out some of the more excessive provisions enacted by the Janša administration.

The current neither-here-nor-there situation provides the worst of both worlds. The National Council doesn’t do what it was supposed to do. In this, it is failing to provide what little check it has on the parliament rubber-stamping the government decisions. And yet, the body still exists, in a zombie-like state, to be revived whenever someone (presumably the Glorious Leader) feels like it.

Media as the enemy

And speaking of not-so-close relationships,Janša’s war with the media has now been widely documented. Be it domestic or international, outlets and specific journalists who were even mildly critical of Janša’s politics have been subjected to the vitriol of the Glorious Leader and his minions.

This, of course, is nothing compared to the frontal assault the government is making against the Slovenian Press Agency (STA). The public press agency has actually had to resort to crowdfunding to maintain operations, while the government refuses to fork over the money it is required to pay up. Not only that, one of the PKPs (see below) even specifies the government’s financial obligations as stipulated in the Law on STA are to be honoured forthwith.

You read that correctly. The parliament had to pass a law stipulating that the government must respect an existing law. That was six months ago. And still the defunding continues. How’s that for destroying democratic standards?

This, of course, is just a very outrageous tip of a huge motherfucker of an iceberg. It includes attempts at defunding the national public broadcaster RTVSLO, accusing journalists of spreading the coronavirus, and – lately – even of being accomplices to murder.

When it comes to attacking the media and debasing public discourse, nothing is beyond the pale anymore.

The same goes for repeated attempts to dislodge numerous NGOs from a half-derelict government building. Attempting to thwart protests by imposing undue restriction and slapping protesters (even underage) with heavy fines. Railing against the judiciary and at the same time avoiding courtroom appearances or even refusing to pick-up official court mail.

Executive power-grab

All of this has a directly observable effect on democratic standards. Debasing the public discourse in ways that would make Marjorie Taylor Greene and Matt Gaetz squeal with delight is bad enough. But wreaking havoc with the legislative and legal framework of the state is about a gazillion times worse.

To wit, a little more than a year Janša’s regime attempted to infringe on basic human rights and tried to legalise police searches without a warrant and tracking the citizens via a mandatory app. Both moves came early in the pandemic and were probably one of two main reasons why subsequent attempts to introduce a much less problematic contact-tracing app largely failed.

Not to mention the infamous Article 37a and the attempts to activate it with increasingly wild arguments. These moves also gravely wounded the people’s trust in their elected representatives.

The fact these representatives failed to follow the strict social distancing and masking rules it imposed on the people, pretty much killed that trust for good. Since then, just about everything the government did to fight the pandemic, was met with suspicion.

With some justification, as it turned out.

To hell with parliamentary procedure

Enter the PKPs, the “anti-corona” legislative packages. To date, there were seven of those. Eevery single one of them was passed using the emergency legislative procedure. As a result, there was precious little time for parliamentary scrutiny and debate.

Even so, the government made repeated attempts at curbing parliamentary oversight even further.

It often submitted time-sensitive draft legislation at the very last moment. It then pressured MPs into further shortening the debate and/or forcing late-night sessions. This created a deadline pressure and added to the sense of urgency.

But the real one-two blow to the head of democratic standards was the re-introduction of omnibus legislation and liberal use of referendum bans.

While used frequently in the United States, omnibus legislation was pioneered in Muddy Hollows during the short-lived Janša 2.0 government (2012-2013).

Back then, such legislation was considered an abomination and was rammed through the parliament on the account of “a national economic emergency”.

Naturally, the Janša 3.0 government revisited the approach, citing “a national health emergency”.

New-and-improved omnibus bills

This time, however, these new-and-improved omnibus bills no longer only dealt with the subject matter. Suddenly, they were chock-full of various other provisions that had absolutely nothing to do with the pandemic.

Sure, things didn’t always go smoothly for Team Janša. Especially once the opposition pulled their collective heads out of their collective arses and started, you know, opposing. But for the most part, the Glorious Leader got his way.

But there’s more. As soon as the pandemic started ebbing a bit, the regime promptly did what it swore it would never do. That is, it continued with omnibus legislation, any pretense of fighting the virus now gone.

Let’s look at an example at random. The draft law on cutting red tape had a preamble. And that preamble stated the omnibus approach proved effective in changing large swaths of legislation with a single stroke.

Effective? Of course it was fucking effective. If by effective you mean opaque and intentionally hard for the legislative branch and its legal services to parse, making it easier to shove it down the parliament’s throat.

And when the said anti-red-tape draft law was scrutinised it turned out to be a steaming heap of rhinocerous excrement no-one would touch with a ten-foot pole.

In fact, the whole text was so bad that the authors tried to hide it from the government’s legal service. And when the lawyers did get a look-see, they proceeded to shred it to pieces.

Strategic councils for making an end-run around parliamentary scrutiny

This omnibus legislation clusterfuck lead to another seemingly small change that can have enormous repercussions down the road.

Namely, at some point in early 2021, the government quietly changed its rules and procedures, allowing heads of “government strategic councils” to table any and all motions (in the non-US sense of the term) that fall within their purview.

This, of course, creates an inherent jurisdiction conflict. Until this change ministers and state secretaries were the ones empowered to put forward things for the entire government to consider.

It makes sense, too. The ministers are parliament-appointed and ultimately answer to the legislative body, either individually or collectively.

Strategic councils, however,are appointed by prime-ministerial fiat, without any input from the parliament. The moment they were given the power to propose decisions to the government, their mere existence became problematic.

The thing is that the government technically decides by a majority vote. And when a single party holds a majority of portfolios – which happens to be the case with this government – this opens the path to do an end-run around an uncooperative minister or even an entire coalition partner.

Therefore, it is no coincidence that the Glorious Leader is churning out all sorts of strategic councils these days. He already appointed one on debureacratisation, on digitalisation and on social policies.

Careful observers will note these portfolios fall within the purview of SMC and NSi, the junior coalition parties. Careful observers can also do the math for themselves.

Forcing Janša’s hand

If there is one thing Lilijana Kozlovič’s resignation is good for it is the fact that is somewhat forces Marshal Twito’s hand. He will now have to move forward with a procedure he will own politically.

With only a minority in the parliament and what not, the Glorious Leader can stumble into a goverment collapse. This would, for example, happen if the parliament doesn’t appoint a new justice minister in time.

But failing that, be on the lookout for the Glorious Leader appointing yet another strategic council. This one, obviously, on judicial matters.

You know, just in case the replacement justice minister should think about not following the Party line.

Things are, of course, bad enough as they are. But the real problem is that this debasing of democratic standard is setting a formal and informal precedent that will be hard for any future government to resist.

The real problem

Other than their own sense of propriety, what is to stop a future largest government party from pacifying their coalition partners with numerous strategic councils that can produce competing draft bills?

Or, what is to stop any future coalition from ramming through a legislative upheaval with little or no scrutiny? Or exert pressure on public media by ways of withdrawing funding?

Destroying democratic standards is fairly easy. But (re)creating them, that’s going to take a lot of wisdom, patience and political capital. Sadly none of these are in high supply these days.

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Agent provocateur and an occasional scribe.