POLITICS AND THE LAW
Speech by the President of the Reublic milan Kucan at Conference of Slovenian Lawyers

Portoroz, 10 October 2002


Ladies and Gentlemen,
Colleagues,

It is a matter of great personal satisfaction to once more have the opportunity to address this prestigious gathering of Slovenian lawyers. Eight years ago I also spoke on the subject of politics and the law. At that time Slovenia had been an independent state for three years, implementing its own legal regime on the basis of the Constitution from December 1991. It already had experience of securing a social state governed by the rule of law. Eight years ago I expressly advocated consistent respect for the principles of constitutionality and legality that form the very foundations of democracy and a state based on the rule of law. These very principles legitimised Slovenia’s entry into the international community and established its position within it.

At the birth of the Slovenian state, the world had already taken on a somewhat different appearance to that we had previously expected to see. Today its global nature and complex interconnections have been recognised, with both positives and negatives in which all its shortcomings are laid bare. These shortcomings include a lack of global responsibility. Global responsibility means that states should be accountable for their behaviour not only to their own citizens – in accordance with the principle of national sovereignty – but also to other states and the entire international community. This kind of accountability requires the modern, globalised world to be regulated so that its contradictions do not grow into unmanageable conflicts and violence. And these ideas demand a critical examination of the existing system of international relations and international law, which no longer provides complete solutions to the challenges of the modern world. We are only just beginning to shape the ethical, political and especially legal rules to deal with all the actors – that is, the states, inter-state, universal or regional organisations, commercial corporations, civil movements and others – that will make a contribution to administering the world at the global level and that will take responsibility for it.

The existing system of international relations and its legal regulation has been in place for a considerable time and has, in its time, secured the relative security and stability of those relations. This means that any critical examination will require great sensitivity and tact. The development of that system has been based on the logic of the traditional nation state and an interpretation of sovereignty modified to that logic, according to which states themselves define the boundaries of their sovereignty. Sovereignty is the highest value, protected by the entire system of international relations and further sanctioned by the principle of non-involvement in the internal affairs of sovereign states. This understanding of sovereignty is less and less in accord with today’s world, given the need and urgency for international cooperation to combat the negative phenomena of global interdependence and to develop its positive elements. It is particularly out of step with the trend towards the universal validation of human rights as the legal and ethical basis for relations in the world regardless of a person’s association with a state, nation, religion, race or civilisation. The traditional understanding of sovereignty is also at odds with the acknowledged and vital need to update international law, international mechanisms and international institutions which have already evolved, even within that traditional framework. This can be seen for example in the acceptance of humanitarian intervention in cases of systematic human rights violations through state-sponsored violence, international criminal tribunals and the concept of an international court for human rights. These developments, which cry out for the legal definition of these new relations and institutions, represent a certain level of legal constraint on national sovereignty. This means that the scope, character and meaning of sovereignty as the exclusive competence of the nation states are already narrowing and changing.

Slovenia’s entry into the European Union and the adoption of EU law gives us additional cause to reflect on such matters. EU law, as a synonym for a united Europe, stands for a community of equal European nations and states linked by common cultural roots and a similar basic understanding of the world and of the place that people and human life and dignity have within that world. The concept of the individual is the most widely recognised characteristic of European culture and civilisation. It is from this starting point that a united Europe is joining common creative efforts to influence events in a globalised world, to shape relations within that world, and to take on its share of responsibility for the world and its global management. It is within this context that one must understand and evaluate the existence of the common body of European law that encroaches on national sovereignty as traditionally understood, and that undoubtedly represents a unique renunciation of national self-interest. The alternative is clear and, sooner or later, every European state must decide whether it is capable – while protecting its own characteristics and diversity – of finding and affirming common values with which to secure its position in the world, or whether national self-interest will prevent the unification Europe from continuing. A unified European legal system and institutions could be an important step towards the revitalisation of Europe’s influence in a globalised world.

The law of a modern democratic state – within circumstances that increasingly transcend the difference between national and international law – has in its very nature and content already become a constituent part of a legal order that reaches beyond the borders of individual sovereign states. According to the Slovenian Constitution, all laws and other regulations must be in compliance with the general principles of international law and the international treaties to which Slovenia is party. On gaining membership of the Council of Europe in 1993 and with ratification of the European Convention on Human Rights, Slovenia accepted the jurisdiction of the-then European Commission for Human Rights and the European Court of Human Rights – bodies reorganised as the unified European Court of Human Rights. Last year Slovenia also ratified the Rome Statute on the new International Criminal Court. Developments in protecting human rights in the international community, from the Nuremberg trials and the International Criminal Tribunals for the Former Yugoslavia and for Rwanda right up to the newly created International Criminal Court have been the product of new understanding and a general recognition of the principle of the universality of human rights and the need to protect those rights via the institutions of international justice. Slovenia’s legal order is therefore being harmonised and integrated into the international environment. In this manner Slovenia is contributing to the creation of the legal order of a united Europe based on the exercise of human rights.

Discussions on the relationship between politics and the law can no longer be limited to legal acts, a legal order that in some manner originated in the Republic of Slovenia, and the relationship of Slovenian politics to that legal order. One must also take into account the fact that enforcement of respect for that legal order no longer lies exclusively within the competence of Slovenian institutions, nor will that be the case in the future, especially after Slovenia’s expected entry into the European Union.

The legal field has also come face to face with the processes of globalisation. This requires the active commitment of Slovenian politics, the Slovenian legislature and Slovenian law in its entirety. Processes aimed at strengthening the universal protection of human rights, the confrontation of legal standards and the different understandings of their ethical bases within large political and economic communities and in relations between those communities and – for Slovenia in particular – integration with the future legal regime of the European Union all represent enormous challenges for political and legal experts, if I may add special emphasis to those two fields. These challenges do not therefore only concern the economy and the scientific and research activities that directly operate at the international level, but every other area of life and work, every national institution and every person that will be either included in world events or affected by them.

I would like to consider two aspects of the relationship between politics and the law: the relationship to the creation of legislation and the relationship to its implementation. It is my conviction that respect for the law should be common to both these aspects. It is the responsibility of the political system, or to be more precise the politicians, to understand and respect the fact that though they create the law, they are subordinate to it, and that criteria such as adequacy or even agreement with established political goals cannot replace the criteria of legality, the rule of law and respect for the principles of constitutionality and lawfulness, if we are to list the relevant synonyms. The arbitrary nature of politics and respect for the law are irreconcilable. The proposer of a legal act or a legislator must be sure that the act is in accordance with valid international law and the Constitution. An interesting question in this regard is what it means if, for example, a government, when preparing an international treaty – whereby it is indisputably bound to act constitutionally – requests constitutional court judgement on the treaty’s constitutionality at the same time as sending the treaty through parliamentary procedure. It is my belief that every state body preparing or adopting an international treaty, a law or any other legal act should take full responsibility for its constitutionality.

Making every government body responsible for constitutionality and legality is in complete harmony with the principle of the separation of powers and consequently the separation of competences between individual bodies. The precondition for the functioning of all three branches of power and of all state bodies is that they are subordinate to the law; the legislature is subordinate to the Constitution, and the executive and the judiciary to the Constitution and the law. The constitutional provision stating that power in Slovenia is vested in the people and that citizens exercise this power directly and through elections means that the state exists for the people and not the people for the state. The rule of law means that a democratic state is subordinate to the law. Relations between all three branches of power and their related bodies are therefore legally regulated to enable reciprocal supervision of and constraints on the performance of their functions. This involves not only parliamentary, judicial and constitutional supervision but also the supervisory role of the democratic public and civil society in general, including the media. This is all intended to enable the responsibilities of government bodies and holders of public authorisations to be enforced in practice. The conditions for enforcing responsibility are clearly defined regulations and the desire and ability to carry out public work. This enables public scrutiny and, perhaps even more importantly, when the conditions for enforcing responsibility have been fulfilled, it also enables the courts and prosecution service, including the Constitutional Court, to function within appropriate time limits. Nor should one overlook the ongoing duty to inform the government and National Assembly if any law is found to be unconstitutional by a Constitutional Court decision. Slowdowns or even deferrals in carrying out these obligations are not positive testimony to the rule of law. For a state governed by the rule of law to function properly, there must be a transparent, clearly defined legal system that is efficiently implemented across all branches of power and within every sphere of society.

Simply proclaiming in the Constitution that your state is governed by the rule of law and verbally pledging allegiance to it are not sufficient in and of themselves. The state is not only expressed in the adoption of regulations but also in how it acts and whether it acts in the manner the law and other regulations prescribe for all, including the state, rather than generating judicial disputes itself, be they the result of failing to act within reasonable time limits or of the unlawful activities of its constituent bodies. Of course, even state bodies cannot completely and permanently avoid mistakes, yet the political sphere does have a responsibility to ensure that the margin for error is reduced and that action is taken to improve the situation.

There is not enough time, nor is today the right occasion, to delve deeper into this issue, so I shall limit myself to what is perhaps the most burning issue for citizens and the international community in implementing the law: a judicial system that permanently functions behind schedule.

Court backlogs, which we have been dealing with since the judicial reform of 1994, demonstrate the weaknesses within the judicial system and place a question mark against the constitutionally guaranteed right to judicial protection. If we do not match in practice the constitutional guarantee to all that an independent and impartial court will adjudicate on their rights, duties and any charges against them, then a fundamental democratic principle has been violated; it would be a violation of the Slovenian Constitution and the European Convention on the Protection of Human Rights and Fundamental Freedoms, legal security would be threatened and damage would be done to the confidence that people at home and abroad and commercial companies place in the state. Backlogs raise the question of whether the state is actually capable of enforcing the right to a fair trial within a reasonable period of time. The constitutionally guaranteed independence of judges in the performance of their duties cannot mean that responsibility for the state of justice lies with the judicial branch of power alone. The judiciary’s task is to provide independent and highly professional trials, while the organisational, personnel and material requirements fall under the competence of the legislature and executive. The responsibility of the legislative and executive branches of power to fulfil the regulatory, material and personnel requirements for the courts does not in any manner reduce the judiciary’s responsibility to provide high-quality, efficient work. The competences of the European Court for Human Rights in Strasbourg and the practice of that court already enable and require the viewpoints of judges and other participants in the legal process to transcend national borders, and that trend will only increase in the future. The experience of Slovenian courts also demonstrates that there is a need for more profound study and reflection on the practical consequences of proposed solutions when adopting new regulations, and particularly when amending existing legislation. Although I have already highlighted court backlogs, I certainly do not believe that the issue they form part of can only be solved in the final phase, when a case has already come before the courts. It is a much wider problem, largely related to creating conditions whereby as low a number of disputes as possible end up in court. This means that we must establish suitable conditions and an awareness that operational and other commitments have to be met and that the law has to be enforced. This does not only relate to regulations but also to ethics and morality. It is also extremely important that state bodies provide a practical example in fulfilling legal and other obligations. And for that to happen, it would extremely beneficial to reflect on when and why state bodies themselves become the cause of legal disputes.

It is my view that the relationship between the creation and implementation of legislation should also be taken into consideration when deliberating proposed changes to the Constitution. I am in favour of an exceedingly restrictive approach to constitutional amendments. Amending the Constitution will certainly be necessary as and when Slovenia accedes to the European Union and Nato. With regard to other changes, I think it would be reasonable, within all professions and not just the legal profession, to not only deliberate possible amendments to individual provisions but also to consider all the consequences a constitutional change would have, and in particular – a question that has to be answered – whether that constitutional change will actually achieve its intended objective in practice. In general I would say that that all other legal options must be exhausted before initiating constitutional amendments. The political interests demonstrated by most current proposals for constitutional amendments are extremely pragmatic and short-term in nature and motivation, and are not sufficient to justify constitutional change. The Constitution is the fundamental social document of this state. It is a document that expresses a high level of consensus, the consensus on which the Constitution’s legitimacy rests. That social consensus is such an important value that it most assuredly has to be consolidated and respected.

Politicians and experts are already faced with regulating our future relations with the European Union. The Convention on the Future of the European Union is dealing with this and has opened up a wide range of issues. What form should relations take within the European Union as a community of nations and as a community of citizens; what influence should the governments and parliaments of Member States have and what direct influence should citizens have; what authority should be vested in the bodies of the European Union, particularly its parliament and executive structure; how should the basic status of Member States be maintained, especially for the smaller countries, or for the countries that make the largest financial contributions to joint projects because of their power. I have only mentioned a few of the issues that exist. The starting point for resolving all these and other issues lies on the one hand in the interests of the Member States, and on the other in their capacity to not only define which interests they want realised at the European Union level and how those interests will be realised but also their actual capability and readiness to ensure that this can all function satisfactorily in practice. This complex issue could also be understood as the question of how to resolve the relation between the sovereignty of nation states and the need for the European Union to function effectively, both internally and towards the rest of the world. These issues all arise in the intersection of the interests of the current Member States and the expectations of the countries that want to join. Important issues have been addressed within this discussion – regardless of the expected enlargement – as to how this community should and can be transformed into a political community, particularly into a community that will ensure a common European foreign and security policy and defence.

There are already sufficient challenges for politicians and the legal profession in this regard. I have attempted, above all, to offer my own thoughts, but it may be observed that the relation between politics and your profession is rather complex, not only in Slovenia but also within the international environment. Slovenia can meet all these challenges, but there are some conditions to fulfil: it must continue a policy that demonstrates its responsibility to its citizens and to the international community; this policy must be linked to the professions – not only the legal profession, but the entire expert scientific and research potential that Slovenia has available; it must throw its doors wide open to the world and it is extremely important that it remains capable of providing stable political, economic and social conditions and positive developmental trends; and most importantly of all, it must be capable of uniting political forces on the issues that the future raises.