Top Court Clears Way For New RTVSLO Law. Kind Of.

The Constitutional Court on Friday lifted the stay of execution of the new RTVSLO legislation. Thus it put out the flaming bag of dogshit it created with the February decision. As a result, despite the court not yet ruling on the substance of the complaint, new RTVSLO management and oversight bodies can take over. They can then finally stop the political clown-car that has been running the public broadcaster into the ground for the last eighteen months.

The Boy with the flute, the RTVSLO symbol, superimposed on a Constitutional Court plaque, combined with a green traffic light.
Constitutional Court green-lit new RTVSLO legislation (picture by Capt. Obvious)

That said, the Court also ended up with quite an egg on it face. Mostly for reasons pengovsky pointed out back in February. The court desperately tried to avoid a political fallout. Yet it achieved exactly the opposite and cooked up a clusterfuck of epic proportions in the process. Among other things, it allowed dismantling of RTVSLO to continue unabated, thus failing its own “lesser or two evils” test. It also rendered itself inoperative on this issue. Which is why the top judicial body had to resort to some pretty messy lawyering to sort out this shit out. Kind of.

If the court had not stayed the law three months ago, the redesign of RTVSLO management would have come into effect. This would have made the case before them moot, as the three plaintiffs would have lost what dubious legal standing they had. And even though those same three plaintiffs are the clown-car that is laying waste to RTVSLO, on the mere face of it, they kinda-sorta-maybe-possibly had a point. -ish. In their infinite impartial wisdom, the majority at the court chose to go with it.

Legal acrobatics

So they did some pretty impressive legal acrobatics to put the kibosh on the new law back in February, promising to resolve the matter on substance tout de suite. And in all fairness, the court did its level best. It just couldn’t get there. Which was probably the plan, anyway. Or at least plan B, for that matter.

Namely, the plaintiffs and the Glorious Leader for whom they so faithfully carried water, seem to have made the same mistake the Big Bird and his flock made prior to the stay of execution. They assumed that a ruling in their favour was a foregone conclusion.

But that conclusion failed to materialise. And when news leaked that a majority may be forming to sustain the law, the Party affiliates utilised a crude-but-effective tactic. They tried to have judges excluded from the proceedings.

Judge Čeferin (thought to be firmly in favour of constitutionality of the new law) had recused himself at the outset of this shitshow. And when judge Kogovšek Šalamon bowed to pressure and recused herself, too, a possible majority in favour of the law all but evaporated.

Which, to be honest, is no small feat in a nine-member court with only three conservative justices. This was the point where Janša and the Three Stooges Plaintiffs probably thought they had bagged the case.


Curiously, Kogovšek Šalamon was not the only judge pressured to refuse themselves. The plaintiffs were also gunning for Matej Accetto, the judge presiding over the case (and the person though to supply the crucial fifth vote to stay the law), while the government side was desperate to get judge Jaklič off the case.

The argument against Accetto was spurious at best. But Kogovšek Šalamon previously did work for an NGO that partook in drafting of the new RTVSLO legislation. But by that same token, Jaklič (who never hid his staunch pro-Janša beliefs) should have excluded himself as well, as he was involved in drafting the existing law, which the plaintiffs were ultimately hoping to preserve.

In came as a surprise to a grand total of zero people that Jaklič wouldn’t be caught dead recursing himself. So, the SDS clown-car, unbelievably, secured yet another tactical advantage in this slow-moving train-wreck.

Legal purgatory

From their point of view, a worst-case-scenario of a 6-3 ruling to uphold the new law, this was now reduced to a 4-3 majority, with two members of the majority having supported the stay of execution. What’s not to like?

A lot, apparently.

No matter how hard the conservative trio (Jaklič, Svetlič and Šorli) tried, the two liberal-but-pro-stay judges (Accetto and Knez) weren’t buying what the trio were selling.

In fact, it would seem that once Accetto took over as the presiding judge, a majority decision was briefly adopted. But then someone had a change of heart and a repeat vote again showed no majority either way.

The February stay of execution was explicitly meant as a short-term stop-gap, allowing the court to rule on merit. But now, the measure was keeping the case in some sort of legal purgatory, neither explicitly unconstitutional nor undoubtedly constitutional.

Admiral Ackbar would like a word

Which was just fine with the plaintiffs. As long as the law was on hold, they were free to pillage and burn what was left of RTVSLO, keeping the Audience of One happy.

Presumably, this was when judge Accetto’s internal Admiral Ackbar woke up and realised what sort of a trap he walked into back then.

With two recused judges, no majority was possible, one way or another. That meant there was no way the court could honour its explicit pledge to rule on the matter swiftly.

Incidentally, the court would have had the obligation to chop fucking chop either way. But they doubled down on it in the February ruling, which put the expediency issue front and centre.

And so the idea was floated to rescind the stay.

Nixing the stay of execution

Unlike a final ruling, nixing a stay would only require a relative majority. Provided a quorum (five judges present) was reached.

Initially, however, even that proved impossible. If news reports are correct, the three conservative judges refused to vote present when a motion to lift the stay came up for a vote. This gummed up the works completely.

So please, tell me again how this was always about merits of the case.

On Friday however, judge Svetlič came about. He voted against lifting the stay, thus providing the crucial fifth vote needed to reach a quorum.

Thoughts and prayers

Janša’s Twittorian Guard were quick to react. They turned on Svetlič and pulverised him online. This, of course, is the same Svetlič whose awkward prose and sophomore understanding of basic civic concepts they hailed as evidence of a great legal mind only a few months ago.

It all goes to show that unflinching loyalty is the only thing that counts for Glorious Leader and his jansheviks. Break ranks once and they will not bat a fucking eyelid dragging you through the online slaughterhouse. That said, one should not feel sorry for Svetlič too much. When you dance with the devil, you don’t decide when the music stops.

And hold the applause for the doctor of legal philosophy, too. His ultimate decision to actually partake in the ruling is the barest of ethic and professional minimums. I mean, it is in the bloody job description. A constitutional judge is literally paid to study legal theory, deliberate and dis/agree with their colleagues. That is kind of the whole point.

Besides, it is quite possible Svetlič did not worry that much about the moral imperative of a constitutional judge, well, judging. Maybe, he simply realised that he’ll have to work with these people for eight more years. Not being a pariah for a better part of a decade is as good a life goal as any.

Sorting out the mess

As for the reputation of the court, writing for the (relative) majority, Accetto did the best he could. Under the circumstances he himself helped create, let’s not forget.

In the end, the court came to the not unreasonable conclusion that their inability to fulfill the pledge of swift resolution is not only undermining the reasoning behind the stay of execution, but is also infringing on the principle of the division of power.

To wit: since the parliament adopted the law (and the people as the sovereign confirmed it on a referendum), the court cannot reverse that decision by judicial fiat. Instead, it needs constitutional grounds to do so. And since no sufficient grounds could be found, the judicial branch was (inadvertently?) pissing in the legislative branch’s pool. Which the court recognised is not cricket.

Unlawfully appointed top brass

Sealing the deal, however, was a somewhat unrelated legal development. Former RTVSLO director general Igor Kadunc sued his former firm in 2021, claiming that successor and member of the current clown-car outfit Andrej Grah Whatmough got the job unlawfully. Somewhat surprisingly, the courts agreed at all levels.

The constitutional court, tangled up six way to Sunday, knew an out when it saw one. It reasoned that RTVSLO with an unlawfully appointed leadership under current law right now is far more damaging than the notion of maybe ruling in favour of the plaintiffs some time in the future. If and when a majority to that effect is able to form, that is. Thus the court concluded the Whatmough case tilted the “lesser of two evil “ test firmly in favour of rescinding the stay.

Batshit crazy

There is, of course, nothing clean and tidy about Friday’s ruling. Recusals, obstruction, name-calling in public and backtracking on staying the law. The court had to pay a huge price for trying to have the political cake and eat it legally, as it were. Which exactly what pengovsky was droning on about back on February.

As a result, Janša and his minions went ballistic. Almost tasting victory against all odds will do that to you.

Among other things, the Glorious Leader demanded the court self -disband, adding the batshit crazy hashtag #drzavljanskavojna (#civilwar). Because nothing spells internecine conflict in Muddy Hollows more than a legal outcome you don’t like.

(As an aside, Janša has been hallucinating about civil war one way or another for a while now. Pengovsky will write that one up soon, just so you know…)

With Marshal Twito setting the tone, the rest of far-right online braniacs followed suit. A short trip down the Party rabbit hole on Twitter brings up a treasure trove of conspiracy theories, calls for boycott and outright slander. It will suck to be a constitutional judge for a while.

They have one job

On the other side, the government and the wider liberal/left camp really shouldn’t celebrate too much. They had a slam-dunk law which enjoyed broad public support and still they almost blew it. This in itself speaks volumes. Instead, they should count their fucking blessing and hope that the public mission of RTVSLO can be salvaged.

Their only job right now is to swiftly enact the law and get the new organisation up and running. The court have them about a week to do so. And when that is done, they need to get the fuck out of RTVSLO.

Failing that, either out of incompetence or malice, they are perfectly capable of finishing Janša’s job for him.

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Agent provocateur and an occasional scribe.