Ljubljana – On the occasion of Constitution Day, Constitutional Court president Rajko Knez has told the STA in an interview that the country’s top court has also been affected by the Covid-19 epidemic in terms of caseload. He warned against the overburdening of the Constitutional Court with additional tasks in general as this may weaken the institution.
Knez noted that the court had received more than 130 appeals to review the government’s decrees on Covid-19 restrictive measures, the infectious diseases act and legislative stimulus measures for the economy and certain groups of citizens.
The court’s work in other fields has not been suspended, nevertheless, but Knez warns against an additional burden, as this could only weaken the institution.
“Covid-related cases have been defined an absolute priority. Decisions have been made so far on slightly more than 100 cases,” he noted, adding that focus had been on issues that are important from the aspect of constitutional law.
The court decided at one of the recent sessions to address these cases as soon as possible and issue “decisions that will provide certain guidelines or show how the Constitutional Court perceives the measures taken so far”.
When it comes to the court’s decisions taken so far, Knez notes that, in his opinion, a majority of judges “have taken a somewhat reserved stance, because it is hard to take a position on measures that are said to be based on expert opinions.”
“When we see, though, that an excessive encroachment onto human rights is being made, then we need to react, including by temporarily staying the measure is necessary,” he added.
Already in April, the court ordered the government to check on the weekly basis whether the ban on travel between municipalities is warranted. “The longer the measure lasts, the more invasive it is,” Knez said.
Government decrees may change quickly, and expire even before the court manages to take a decision on them. But they may repeat, so the court will deal with important issues despite the fact that related decrees may no longer be in force.
Knez also discussed the recent warning by the Constitutional Court that revealed that the government had not been properly announcing its decrees, for instance in relation to distance learning, as they were not published in the Official Gazette.
“It is not only a formality that decisions on measures are properly published. This is required by the Constitution and this serves the predictability of the legal order, Knez said.
Other communication channels cannot replace the rule that general acts need to be published in the Official Gazette. “We did not want to be harsh, but we had to make a statement that measures for the second wave are not being properly published.”
Due to the large number of incoming epidemic-related cases, the court this year decided on as many as eleven proposals to stay a piece of legislation. “This is not a small number,” said Knez, noting that an unusually high number of extraordinary sessions had been held this year.
For this reason, he warned against overloading the court and against changing legislation so that the Constitutional Court would have to decide on all cases, even those where legal interest no longer exists. He noted that legal interest is a filter for caseload.
“The wider you leave the door open, the more cases the Constitutional Court will need to decide on, and it is already overburdened. The legislator must be aware of this, because if you want to have a weak Constitutional Court, you overburden it.”
Also opening the door wide open is the change to the referendum law that gives every voter a right to a constitutional challenge.
“We will certainly collide with this article as we decide on the constitutionality of the act on investment in the Slovenian army, a legislative referendum on which has been declared inadmissible by the National Assembly.”
As many as 17 of the court’s decisions remain unimplemented, including the one that ruled part of electoral legislation unconstitutional. The legislator has been given two years to rework electoral districts to eliminate the major difference in their size.
Knez noted that this is a violation of the principles of the rule of law and division of power, adding that the legislator had been even given more time than usual, “all with the purpose of the decision being eventually honoured.”
He said that, while the efforts by President Borut Pahor for the decision to be implemented had started almost immediately, a political agreement could not be reached as other interests had prevailed, which he said was “very worrying.”
Knez understands that the number of decisions that have not been implemented is rising as the lawmaker has had other priorities this year, but nevertheless notes that “we have never been at such a high number.”
As for the decision on the electoral districts, he said that “the question of legitimacy of the [next] elections will certainly be raised, which is why the non-implementation of this decision from this aspect is not equal to other cases.”
The Constitutional Court is still waiting for replacement for Dunja Jadek Pensa, whose term expired in July, but who remains on the court after two unsuccessful attempts in the National Assembly to appoint a new Constitutional Court judge.
Knez commented on this by saying that the matter of success or lack thereof was only how an elected judge contributes to the court’s work, adding that judges did not decide politically, but by law.
Even if decisions had political implications, this does not mean that judges should be sought solely under the criteria of possible political affiliation.
“I would rather see support being expressed to a candidate in whom expertise is by far in the forefront, including the required skills – for example, knowing about the interaction between the Constitution and laws.”
What is also important is comprehensive assessment as a person. “If political affiliation is the only filter, many candidates who would perhaps be very good constitutional judges, but do not want to go through such a selection procedure, would stay behind.”
Knez spoke to the STA on the occasion of Constitution Day, marked on 23 December, the day in 1991 when the Constitution of the Republic of Slovenia was adopted by the National Assembly.
