Tag: Constitutional Court

Janez Janša Walks Out Of Prison. But Is He In The Clear?

Janez Janša walked out of prison earlier today. This followed an injuction by the constitutional court which suspended execution of his two-year prison sentence pending final ruling in the Patria Affair. The court unanimously agreed that – in a nutshell – it’s Janša’s MP status which would have been impeded beyond repair should the final ruling be made in Janša’s favour. Should, however, the court in the end rule against Janša, the leader of the SDS will continue to serve the remainder of his sentence.

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Free Ivan (source)

Now, immediately after the injunction was announced, all hell broke loose and (as per usual) Slovenia was all of a sudden teeming with legal experts. Obviously, most of the interpretations were and still are wildly off the mark. Among the disappointed crowd, the story was being spinned as if Janša was released from prison because he is a politician.

Among the faithful, on the other hand, Janša out of was prison akin to quashing the prison sentence against Janša, confirmation of their belief that Janša is a “political prisoner” and prompting them to call for the heads of most of Slovene judiciary, starting with president of the Supreme Court Branko Masleša.

All of the above is painfully wrong.

Janša was released from prison (possibly only temporarily) not because he is a politician but because he is an MP. Now, whether we like it or not, the constitution states that every single MP is the representative of the entire people. While the MPs debated Janša’s ejection from the parliament, his posse kept on babbling about how the rights of his 6000+ voters are being hindered if he is barred from serving as MP while in prison.

The constitutional court, however, took it one step further, but not necessarily in the direction Janša and his crew wanted. Namely, it had stated that it was representation of the people of Slovenia that was at stake. Not just JJ’s 6000 voters. However, the said representation was only at stake if the man is innocent (i.e.: is found to have not been tried fairly).

Meaning that the court en passant confirmed the controversial decision of the parliament to deny MP status to a convict, but had not yet decided if Janša was convicted fairly.

This of course opens up a plethora of other constitutional and political loopholes which the parliament knew existed for years if not decades, but was unwilling to plug them.

So, what at first seems like good news for Janša, really may turn out to be not-so-good news. Because Janša is out only because he is a serving MP. It is this particular specific situation which makes his case different from that of his co-convicts, Ivan Črnkovič and Brigadier (Ret.) Tone Krkovič. The trio was convicted simultaneously, but only Janša gets to walk out. Because he is an MP and not because the constitutional court would imply the final outcome of the ruling.

In fact, in the text of the injuction (Slovene only) the judges make an extended effort to press this exact point: the injunction does in no way, shape or form preclude the final ruling in the matter.

And that is all there is to it. Representation of the people matters most. The court recognises a possibility, however remote, that a serving MP was convicted unjustly and set him free to execute his mandate until final decision. Should that decision be reached in favour of the plaintiff all hell will break loose, possibly forcing early elections. But if the judges find against Janša et al., the leader of the opposition simply continues in prison where he left off today.

Related articles across the web

    The Line Of Succession, Just A Heartbeat Away

    Gregor Virant officially resigned as President of the National Assembly (the parliament) yesterday and took his Citizens’ List (DL) across the aisle (in a manner of speaking) and joined the opposition. For the time being, at least, until a new coalition is formed, a part of which the DL will surely be. That or snap elections. Or both. Anyhoo. Fact of the matter is that the National Assembly is now sans sans president which opened a nice little constitutional problem. Namely, the line of succession.

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    Jakob Presečnik, the Veep. Sort of. (original images here and here)

    Technically, it goes like this: The President of the republic is the head of state. Should the president be incapacitated or otherwise unable to perform his or her duties, the president of the parliament takes over. This includes signing bills into laws, appointing ambassadors and commanding the armed forces. Now, until yesterday, pengovsky was convinced the line of succession was taken care of and that the president of the Constitutional Court was next in line.

    Well, guess what. He isn’t. In fact, it is not at all clear, who – if anyone – takes over presidential duties if both President of the Republic and President of the Parliament are absent. Now, Article 20 of parliamentary Rules and Procedures does stipulate that “if the President ceases to hold office, he is substituted for by the oldest Vice-President.“.

    In accordance with this, Jakob Presečnik of SLS was appointed Vice-President-in-Charge yesterday. But Article 106 of the constitution stipulates that only President of the National Assembly can take over for President of the Republic. Which seems to rule out Presečnik. He himself said as much yesterday on state television.

    OK, Slovenia is not the United States and the “presidency being just a heartbeat away” doesn’t have the same ring to it. But this is not the first time this has happened and one could argue that parliamentary Vice-President-in-Charge could extend his/her duties to stand in for President of the Republic as well. But this is far from certain. And lines of succession need a large degree of certainty. Therefore, you can be sure a legal conundrum will ensue if – Bob forbid – anything goes wrong at the presidential palace.

    Bottom line: we’re only an ear infection away from a constitutional chain-of-command crisis.

     

     

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    Patriot Act: Constitutional Court Gives Goverment Carte Blanche

    Earlier today the Constitutional Court nixed referendums on laws on state holding company and bad bank. Brainchildren of finance minister Janez Šušteršič, these are perhaps the most crucial pieces of legislation the government of Janez Janša pushed through the legislative procedure so far. Or will have pushed at all. However, regardless of one’s take on this particular set of laws, it is the ruling of the constitutional court that will go down in history. Namely, in its drive to prevent referendums on these to laws, the court – willingly or by chance – gave this (and every other) government a carte blanche. Allow me to elucidate with references to specifics…

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    The sa(i)d ruling. Full text here

    Normally, pengovsky would go apeshit over denied referendums. After all, that same court in that same composition allowed a referendums on pension reform and the family code. In the latter cases judges defended the right to vote at all costs, while this time around they liberally applied “values before rights” approach. Specifically, they said that the right to a referendum must give way to values of a functional state including creating conditions for economic growth, human rights, including social and labour security and freedom of enterprise, fulfilling international obligations and effectively enforce EU legislation in Slovenia.

    The last item was the usual mantra of every government in the history of this country. “It’s the EU” was the trump card which effectively ended every debate. The fact that the Constitutional Court succumbed to it leaves a sour taste in one’s mouth. Ditto for “fulfilling international obligations”. Both items mean that any government can make whatever deal anywhere in the world, be it Berlin, Brussels or Washington, ratify a treaty and have a referendum bid killed almost instantly.

    The second item, about human rights and social security is pure cynicism, the likes of which we’ve come to expect from Janša’s government but not from the supreme defender of the constitution. Allowing referenda on pension reform and family code a year ago, knowing full well both laws will be rejected and thus making sure life got no better for a lot of people, the very same constitutional court denies the right to a referendum on how to manage state (that is taxpayers’) property.

    However, all of the above pales in comparison with the first item. Functional state including creating conditions for economic growth is nothing short of a “State Protection Act” or, to use its international moniker, The Patriot Act. As of today, the government can do whatever the fuck it pleases. Traffic fines. Education. The budget. Bad bank. Voting system. You name it. Anything can fall in the “functional state” category. With this, democracy is no longer a system but a random act of benevolence of the powers that be.

    In the final analysis, the people of Slovenia are no longer the sovereign of this country. Instead, they’ve been relegated to status of “consultation body” which the government may ask a thing or two from time to time, but whenever the people would want to question decisions of their elected representatives, the need for a functional state” card can (and will) be played.

    Not buying it? Try this on for size. When this same constitutional court nixed Tito Street in Ljubljana, again citing various values, it made it clear that was a one-off decision, although the court’s rulings are usually taken as precedents. This time, however, there is no such clause. This is it. Functionality of the country comes first, our rights as citizens be damned.

    If you don’t agree with it, you can take it up with the Constitutional Court. Oh, wait..

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