Esohap

Slovenia celebrates today on 23 December 2021 the 30th anniversary of its constitution. It the past months it has been for a second time presiding the Council of the European Union. Slovenia has been in comparative literature lauded as a case textbook example of successful transition from a totalitarian system to a democracy. However, as Matej Avbelj, Gorazd Justinek and myself have argued in our recent book that the influence of European institutions on the democracy and rule of law in Slovenia has been in the last three decades at best partial and piecemeal (Hart Publishing, 2020). Our examination of the state of affairs in the past three decades illustrates that there is a stark contrast between the idealistic normative standards of the rule of law and constitutional democracy and systematic and general failures to implement them in the daily lives of the state institutions and public administration. This post briefly analyses the current state-of-the-art of the Slovenian constitutional democracy. It argues that it is an example of the discrepancies between the high-flying ideals of liberal democracy and post-socialist daily reality.

The rule of law challenges have not been novel in the Slovenian constitutional democracy. They have been omnipresent in the Slovenian environment since the fall of the Communist regime and subsequent creation of the Slovenian state. All three branches of the Slovenian government have in the past three decades struggled to apply the rule of law standards in practice. Such challenges have not been surprising as the Slovenian institutions were versed in the past to work on the basis of the rule by law whereby legal principles and rules have only been used to justify arbitrary decisions of totalitarian regime. As a result, State institutions have been in all three branches in the past decades traditionally weak and subject to both internal and external pressures.

As a rule, the trust of the general public in the functioning of all three branches has been traditionally low. For instance, the Slovenian judiciary often ranks among the EU Member States with the lowest percentage of trust of the general public in the independence in the functioning of courts (EU Justice Scoreboard 2020, p. 41, Fig. 44). The Slovenian judiciary has in the three decades encountered several challenges of how to ensure the effective and equal exercise of the right to fair trial. It has been characterised by the remnants of post-socialist authoritarian mentality, formalisms and conflicts of interests. It has still not opened fully to the public in order to achieve greater legitimacy and credibility of its judicial decision-making. On the contrary, the majority of judgements of ordinary courts (particularly of 1st and 2nd instances) are still not published. Its highest self-governance body, the Judicial Council, still holds sessions behind closed doors. The Slovenian judiciary since its creation in the early 1990 faced systematic challenges concerning ensuring its external and internal independence. Whistle-blowers among judges have not been effectively protected. However, the judicial governance has not only turned a blind eye to their concerns, but also engineered disciplinary proceedings against whistle-blowers. Moreover, in several high-profile cases the judiciary lent support to strong political and economic interest groups, eroding the general trust in Slovenian courts even further.

On the other hand, the legislative and executive branches have in the past shown patterns of the authoritarian legacy. The system of check and balances among different branches has been hardly operational. Out of almost 30 years of formally democratic governance in Slovenia, the post-transitional left has governed the state institution and public administration for two third of time. The position of legislative branch has been particularly weak given the legal nature of the Slovenian parliamentary electoral system that centres on political parties, not on individual candidates. As a result, such an electoral system has diminished almost any accountability link between the voters and political parties. It is a usual practice that new political parties in Slovenia establish two or three month before election, which thereafter end up winning or coming second. In most cases, they disappear after one or at best two mandates of existence in the National Assembly. The democratic legitimacy of the elections to the National Assembly was particularly affected in 2014, when the Slovenian judiciary in the Patria case sentenced the then opposition politician (and the current prime minister) to prison sentence only few weeks before the election date (the Constitutional Court later quashed the judgment and found violation of the right to impartial tribunal).

The European Institutions such as the Council of Europe and the European Union have in the first decades positively contributed to the normative reform of the rule of law and constitutions. Nonetheless, the European institutions have quickly reached the limits of their impact. They have not been able nor willing to propel the reform of legal culture, mentality and business-as-usual in the institutions of the Slovenian state. Their functioning has been characterised in the past by the presence of the post-socialist mentality, the actual and perceived conflicts of interests, nepotism, clientelism and the rise of “nouveau riche” elites and tycoons praying off the Slovenian economy. Most of Slovenian economy, as Gorazd Justinek analyses in our book, has been negatively affected due to the policies of gradualism, national interest and the triumph of the state-owned corporations. Supervisory institutions such the Commission for the Prevention of Corruption and the Court of Auditors have been in the past decades weak and have often struggled themselves with their own challenges on how to ensure prohibition of the actual or perceived conflict of interests in their own institutions. As a rule, they have not been able to provide effective supervision of the rule of law in the main three branches.

The Slovenian media landscape has been a textbook example of the post-Socialist media landscape in Central and Eastern Europe. For instance, several tycoons (that are primarily active in other industry sectors) have in the past decades entered in the ownership structures of the mainstream Slovenian media in order to advance their private vested interests and to influence public opinion. The National Public Broadcaster has been since the 1990s battleground of the different ideological and political forces as its Members of the Programme and Supervisory Boards are directly elected in the National Assembly or nominated by the respective governments. Several civil society groups and commentators have described its news programme as creating parallel realty and often succumbing to partisan interests. In the last decade, several business owners, interests’ groups and political parties have aimed to establish their own online portals mostly to advance their own particular partisan and vested interests. All in all, free and professional media standards have in the past thirty years often succumbed to partisan, ideological and ownership’ interests.

The change in government in March 2020 has triggered an energetic protests and criticism from parts of civil society and institutional elites, which has recently also attracted some international attention. Their criticism is valid particularly concerning the often questionable nature and content of tweets by the incumbent prime minister and its diplomatic relationship with Mr Orban and should be examined by the European Commission in its annual report on the rule of law. Nonetheless, no description and subsequent analysis and debates on the current state-of-the-affairs of the rule of law, constitutional democracy and media landscape in Slovenia will not be complete without diving deep in the sociology of the Slovenian institutions and public administration, universities, trade union, civil society media, etc. Moreover, a full-fledged report on the rule of law in Slovenia will have to contextually examine the ownership structures of its economy and media and will have in particularly study the impact of the institutional and informal networks of Slovenian elites on the current deplorable state of the Slovenian constitutional democracy. As Alenka Kuhelj and Bojan Bugarič submitted in their article on “A Day in the Life of Post-Communist Europe” that “the persistence of certain political practices, personalised structures, which, despite various efforts to introduce rule-bound bureaucracy and formal systems of authority, remain integral to Central and Eastern European political life” (p.184). As a result, the Slovenian constitutional democracy has been since several years located somewhere between ideals and post-socialist mentality. To be sure, Slovenia is no “poster-child” of the rule of law in Central and Eastern Europe. The reform of its constitutional democracy hinges on willingness of the Slovenian people to take ownership of liberal constitutional values and principles such as the rule of law, strong institutions, including independent and impartial judiciary and free and professional media.