Scotland Referendum: Notes From An Independent Country

The first time pengovsky really went abroad (yearly summer migration to Croatia notwithstanding) was Scotland. Looking back, I can’t believe how lucky I was, catching the last train from Prestwick to Glasgow on account of Ryanass flight being late and then walking alone in the middle of the night down the streets of Glasgow, map in hand and two backpacks on me, looking for a hostel which seemed pretty close on the map, but really wasn’t… Well, let’s just say I could have been an easy target. But instead this guy Ian came up to me, moderately inebriated, and asked me if I was lost. Since he was satisfied that I wasn’t, he proceeded to ask me where I was from. And upon hearing my country of origin, he broke into wild cheers of “SLOVENIA! ZAHOVIC!” and then decided my hostel of choice was “shite” and personally took me to “this other place”, which was cheaper and nearer. And sure enough it was. Run by Iggy Pop‘s long lost twin brother (or so it seemed), it was a shabby place which could only provide a mattress for the night, but since I was off to Edinburgh the next morning, it didn’t really matter. And I got a discount. But I digress. Point is, my first encounter with Scotland was bizarrely pleasant which is why the whole Scottish Independence Referendum Thing perks more than just my political sciences side.

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In the words of John Oliver: Nothing screams Scottish freedom more than a millionaire Australian anti-Semite on horseback (source)

Just so there’s no misunderstanding, freedom has no price. That much should be taken for granted. And in a few hours you, the good people of Scotland, will decide. There is no wrong answer here. But living in a country that did in fact pull off a relatively smooth independence (especially when one takes into account the bloodbath that followed in ex-Yugoslavia), pengovsky feels he is in a position to give some qualified unsolicited advice, should tomorrow come to a “yes” vote.

Borders

First thing you will notice once the will of the people is enacted for real is the border. There hasn’t been a proper land border in your area for the last three hundred and seven years and I’m sure none of you remember how it was before then. And I can tell you it will be much more of a hassle than you ever imagined. Especially if you commute regularly from Scotland to England (or vice-versa, for that matter).

Now, I’m sure that should you vote in favour of independence, both countries will try to make border crossings as painless as possible. But some hassle is unavoidable. And whenever there’s a terrorist scare or even a problematic football match, borders tend to become much more tightly guarded. Really, if you’re not used to it, it’s not pretty. And since England or “rest of the UK“, as Whitehall apparently calls it, will probably join the EU Schengen border agreement on the Saint of Never, you’ll be pretty much stuck with that for the forseeable future. And just to give you an idea of how much that sucks: after Slovenia entered the Schengen system and we started thinking of our borders with Italy and Austria and most EU airports as glorified toll-booths, it came as a real shock to me when, visiting the US for the first time, I had to stand in line for two hours just to get past customs.

Majority

Second, and I sort of hate to bring this up since it is much too late in the game, is the legitimacy of your decision. Again, whatever you do decide is fine, but you might take a moment and a deep breath, because you’re not just fulfilling a dream of a generation(s) of Scots but also setting the environment for your children and your children’s children. And I was startled to learn that only a simple majority is required for a “yes” vote to win. In real life this means that in an eighty percent turnout, a fifty-one percent vote in favour of independence would actually mean that minority of Scots voted “yes”. Somehow, that don’t really fly, don’t you think?

You see, when Slovenia was putting together its rules for the independence referendum, the issue of a majority was a tricky one, too. Most of the right-wing wanted a simple majority rule, while most of the left-wing wanted a qualified majority of all eligible voters. The argument being that if you can’t trust your own people to support you, who can you trust, then. And the argument prevailed. Not only did more than half of Slovenians of voting age vote in favour of independence, the “yes” vote gathered as much as 88,5 percent support. Which is about as unanimous as you can get in a democracy. Henceforth legitimacy of Slovenian independence was not a question anymore. It was only a matter of convincing others of that fact and, well, executing it.

Because once you go for it, there’s a shitload of stuff that needs to be done. Take currency. I take it you’ve realised by now the English will not let you keep the pound. Which means you’ll have to issue your own and back it up. Now, having your own currency is expensive. Although it is probably even more expensive (as things stand now, at least) to adopt the euro, which you’ll have to do if you decide to join the EU. So that kind of sucks.

President Salmond?

Next up it’s the constitution. You might think it is simply a matter of upgrading current legislation, but it is much more than that. With the constitution, everything is up for grabs. You can do what ever the fuck you like. But since I doubt Bonnie Prince Charlie has any legitimate successors and any claims to the Scottish throne will in all likelihood be fake, you’ll probably form a republic. Will you be a parliamentary republic or will you go for a more presidential system? Does the PM appoint ministers or does the parliament do it? You see, Slovenia was sort of in the rush when we adopted our constitution and just copy/pasted some silly German provision which haunts us every time a new government is being formed. So don’t make the same mistakes we did.

Then there’s the army. I know you guys have a long and proud military tradition and I know you want those nuclear missiles gone. But you’re not maintaining your army directly. And that’s one fucking expensive toy, I tell you. But you can’t really afford not to have an army. Sure, no-one expects Norwegian raiding parties to land on your shores, but you’re probably not want to throw away all those regiments or worse, give them to the English.

Patriotism

And trust me, there aren’t going to be any more jobs just because you got independent. Slovenia may be an extreme case since we lost about 90% of our market once Yugoslavia fell apart, but any way you look at it things are bound to go pretty bad pretty quick. And while patriotism may make you forget you’re hungry it won’t put bread on your table. Slovenians learned this the hard way. Looking back, in my opinion it was still worth it, but ours was an alternative of a Balkan carnage and/or an autocratic regime, so the choice wasn’t really hard.

As for you, Scotland, I’m in no position to judge. I just thought you might want some first hand experience from a country that gained its independence relatively recently.

Now go and do you your thing.

    Archive Referendum Results: Nothing To Be Happy About, Regardless

    A few takeaways on yesterday’s archive referendum results. The turnout was a dismal 11.68 percent, with 67.32% against and 32.68% in favor of the new archive law. Since the quorum of 20% of all eligible voters against the law was not reached, the law stands as passed by the parliament.

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    Referendum results (source: dvk-rs.si, graphics via ChartGo)

    Now, the response of the petitioning party (that be Janez Janša‘s SDS) was pathetically predictable: that at least they won “a moral victory“. That the “forces of UDBa are still at work”. That the people don’t appreciate the referendum as they should (clearly a case of pot calling the kettle black).

    On the other hand, the government hailed “a referendum victory” with minister Uroš Grilc adding that Slovenia finally has a modern archive legislation. Incidentally, the last law to have survived voters’ scrutiny (albeit under the old rules) was 2005 referendum on the law on state radio and television RTVSLO. And that law, too, fell under the purview of Ministry of culture. Just so you know 😉

    Now, while the bit about a modern piece of legislation might very well be true, everything else is pure bullshit-meter-breaking material. This is not a victory for the government. It is, at best, a defeat avoided. The feeling of “victory” is relative only to the ginormous foot the Party had just inserted in its own mouth. Namely, the SDS supported changes to the referendum legislation, instituting the “quorum against” which now worked heavily against them.

    Bonus points in the fuckwit category go for Milan Zver MEP who tweeted that two-thirds of Slovenians slapped the government in the face (this by extension meaning that only people who cast their vote on Sunday are true Slovenians). That the turnout on a referendum they campaigned heavily for is comparable to the 2008 fiasco with referendums on regions only adds insult to injury. As does the fact that back then Janez Janša claimed victory as well.

    But the biggest loser here are the people. Not because the law is now enacted (that, at least, is good) but because the SDS continues, even with the “new and improved” referendum restrictions, to abuse what is left of this crucial institute of direct democracy. This was the pattern for the better part of the past two decades and due to no small fault of the Party the word “referendum” is now tarnished beyond repair.

    Under the new rules it is almost impossible for a group of concerned citizens or an NGO to challenge a piece of legislation unless they have access to a well-developed political party network which (by definition) makes them more of an astroturf group rather than a grass-roots movement. With continued abuse, the “almost impossible” will without a doubt become simply “impossible”, as ignoring referendum votes will become not only acceptable, but indeed desirable. The ultimate goal of making voters indifferent to public matters is thus well within reach. Case in point being the general approval the people met with the new referendum rules.

    Citizens’ oversight is a scarce commodity as it is. Abuse of referendum legislation, such as witnessed Sunday last, only depletes it further. Pretty soon, there will be none left.

    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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    Referendum on the Family Code: Aftermath

    The result of Sunday’s referendum on the Family Code left many people disappointed. Also, it left many people happy, especially those who felt that the supporters of YES campaign (including yours truly) were annoying little pains in the asses. But be that as it may, the rejection of the Family Code with a 54% against vote does have a couple of very serious rammifications.

    First and foremost it’s the fact that children who live in same sex families still have only one “legal” parent, whereas their non-biological parent has zero legal relation to the child. True, there are ways around that, but that’s courts recognising legal loop-holes and not having a straight-up legislative solution. Secondly, a wholesome legislation regulating all types of partnership remains a distant prospect. And when I say distant, I mean it literally. Before 2012, the last time the parliament was about to vote on same-sex marriage and rights (although not as comprehensive a law as the Family Code) was way back in 2004. which means that at this pace, the next time Slovenia will decide on this issue will be 2020. Just lovely. :/

    On the upside, however, even though the Code was rejected, the debate surrounding it, sour as it was, did plenty of good. This was the first time for a lot of peolpe to learn that so called “rainbow families” do in fact exist and that their lives are in every way similar to those of “traditional families” except for a set of really painful and awkward complications, such as the non-biological parent being unable to take sick-leave to tend the child.

    So, why was the Code rejected, despite the last poll projecting otherwise? A lot of attempts at explaining it were given: that it was a case of slacktivism; that people don’t give a fuck; that the NO campaign mounted a last-ditch attempt and succeeded; that their lies simply paid off. Well. pengovsky’s take on thing is that for the general population this was a lot to take in as it were. No matter how tollerant people claim to be, they tend to be wary of people who are “different”, especially in an area as intimate as family relations. But even if you cross that brige, you stil have to have the people make a combination of a rational and emotional decision to cast a YES vote. And this is where things ground to a halt in my opinion. Most people were simply unable to make an emotional connection to the kinds of situations the Family Code provided for, even though they may have been able to rationalise into accepting it.

    It would therefore be very benefitial if the effect of the YES campaign would go beyond just bringing out (too little of a) vote. If the momentum of raising and maintaining awarenes is kept, then the whole thing probably was not in vain. If, however, NGOs and other progressive groups which came together on this issue are again scattered wide apart, then… well… cry havoc and let slip the dogs of war… for the backlash of the conservative side will be fast and furious. This wasn’t just about gays and their children. It was about the society as a whole, whether it would continue in a more tolerant way or if it will start sliding back into ages past. On this issue status quo is simply not possible.

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    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…

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