U-II-1/15

Reference no.:
U-II-1/15
Objavljeno:
Official Gazette RS, No. 80/2015 and OdlUS XXI, 5 | 28.09.2015
ECLI:
ECLI:SI:USRS:2015:U.II.1.15
Act:
Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (MFRA-D, EPA 257-VII), dated 26 March 2015 (Official Gazette RS, No. 20/15)
Operative provisions:
The Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (MFRA-D, EPA 257-VII), dated 26 March 2015 (Official Gazette RS, No. 20/15) is abrogated.
Abstract:
The wording of the fourth indent of the second paragraph of Article 90 of the Constitution, which refers to the elimination of an unconstitutionality, is to be understood in a manner such that it is not admissible to call a referendum only with regard to laws that eliminate an unconstitutionality that the Constitutional Court has already established by a decision and also with regard to laws eliminating a violation of human rights established by a judgment of the European Court of Human Rights.
 
The fourth indent of the second paragraph of Article 90 of the Constitution cannot be interpreted in such a manner that it is not admissible to call a referendum in cases where the legislature adopts a statutory regulation by which it indirectly, by means of the effects that such statutory regulation produces in other legal fields, eliminates an unconstitutionality that the Constitutional Court or the European Court of Human Rights has already established.
Password:
1.5.51.2.9 - Constitutional Justice - Decisions - Types of decisions of the Constitutional Court - In constitutional-complaint proceedings - Annulment of a challenged act.
4.9.2 - Institutions - Elections and instruments of direct democracy - Referenda and other instruments of direct democracy.
1.5.5.1 - Constitutional Justice - Decisions - Individual opinions of members - Concurring opinions.
1.5.5.2 - Constitutional Justice - Decisions - Individual opinions of members - Dissenting opinions.
Legal basis:
Art. 90, Constitution [CRS]
2nd Para. of Section II of the Constitutional Act amending Articles 90, 97, and 99 of the Constitution RS [UZ90, 97, 99]
Art. 21.1, Referendum and Popular Initiative Act [RPIA]
Document in PDF:
The full text:
U-II-1/15
21 October 2015
 
 
On the basis of the first paragraph of Article 30 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11), the Constitutional Court hereby issues the following
 
 
PRESS RELEASE
 
In proceedings to decide on a dispute on the admissibility of a referendum initiated upon the request of the proposers of the referendum, Metka Zevnik, Kranj, and Aleš Primc, Ljubljana, by Decision No. U-II-1/15, dated 28 September 2015, the Constitutional Court decided that the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (MFRA-D) is abrogated.
 
The Constitutional Court adopted the Decision composed of Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The Decision was adopted by five votes against four. Judges Jadek Pensa, Korpič – Horvat, Pogačar, and Sovdat voted against. Judges Klampfer, Mozetič, Petrič, and Zobec submitted concurring opinions. Judges Jadek Pensa, Korpič – Horvat, Pogačar, and Sovdat submitted dissenting opinions.
 
In the case at issue, the Constitutional Court did not assess whether the Marriage and Family Relations Act that is (still) in force is in conformity with the Constitution, nor did it assess whether the MFRA-D, on which a referendum is to be held, is in conformity with the Constitution. The only subject of decision-making in these Constitutional Court proceedings was the matter in dispute between the National Assembly and the proposers of the referendum, namely whether the referendum on the MFRA-D is admissible.
 
In view of the amended constitutional regulation of the legislative referendum, in particular its restrictions determined by the second paragraph of Article 90 of the Constitution, the Constitutional Court had to assess whether the situation at issue entailed a situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution, i.e. whether the MFRA-D was a law by which the legislature eliminated an unconstitutionality in the field of human rights and fundamental freedoms. The key question raised in such context was what type of unconstitutionality the mentioned constitutional provision refers to and who may establish such unconstitutionality.
 
In the system of the separation of powers (and on the basis of the first paragraph of Article 160 of the Constitution), the body entrusted with the authority to review with finality the constitutionality and legality of the regulations of the other branches of power is the Constitutional Court. Therefore, the wording of the fourth indent of the second paragraph of Article 90 of the Constitution, which refers to the elimination of an unconstitutionality, must be understood in a manner such that it is not admissible to call a referendum only with regard to laws eliminating an unconstitutionality that the Constitutional Court has already established by its decisions (and also with regard to laws eliminating an unconstitutionality that has been established by the European Court of Human Rights).
 
However, such does not entail that the National Assembly may not, at its discretion, amend statutory regulations that it deems inconsistent with the Constitution. In performing the legislative function, it is bound only by the Constitution and in such framework it alone decides which matters it will regulate by law and in what manner. However, the existence of the legislative referendum necessarily entails that the representative body is not the only legislator, since the people, too, are a legislator. The competence of the two bearers of the legislative power is limited when implementation of the decisions of the Constitutional Court and the judgments of the European Court of Human Rights is at issue. The Constitution, the decisions of the Constitutional Court, and the judgments of the European Court of Human Rights are binding not only on the National Assembly as the legislature, but also on the citizens when they exercise power directly by deciding on a particular law in a referendum. In other instances where the National Assembly, at its discretion, eliminates an alleged unconstitutionality in the field of human rights or fundamental freedoms, the will of the representative body cannot outweigh the right of the people to perform the legislative function directly by voting in a referendum. To prevent the possibility of allegedly unconstitutional statutory solutions entering into force on the basis of the will of the people, the Constitution determines another effective mechanism by means of which such solutions can be eliminated from the legal order – namely by a decision of the Constitutional Court in proceedings to review the constitutionality of a regulation.
 
The fourth indent of the second paragraph of Article 90 of the Constitution also cannot be interpreted in such a manner that it is not admissible to call a referendum in cases where the National Assembly adopts a statutory regulation by which it indirectly, by means of the effects such statutory regulation produces in other legal fields, eliminates an unconstitutionality that the Constitutional Court has already established. Namely, such cases concern the regulation of issues that are not directly connected with the established unconstitutionality. In fact, the National Assembly may well autonomously choose how and by which law it will eliminate an unconstitutionality established by the Constitutional Court, but if it does so in an indirect manner by amending a regulation whose unconstitutionality has not been established, such cannot entail grounds for prohibiting a referendum.
 
The only thing directly amended by the MFRA-D was the definition of marriage. In fact, this indeed resulted in the indirect elimination of the unconstitutionality that the Constitutional Court established by Decision No. U-I-425/06 (inheritance by same-sex partners); however, the National Assembly thereby also interfered with a substantial number of sectoral laws (reportedly around 70 laws). Hence, such legislative approach does not entail the direct elimination of the already established unconstitutionality but concerns the regulation of something that significantly exceeds that which was imposed by the mentioned Decision of the Constitutional Court. Namely, the Constitutional Court has never established that the definition of marriage currently in force and the conditions for entering into marriage are unconstitutional.
 
On the basis of the above, the Constitutional Court established that the MFRA-D, the subject of which is a new definition of marriage, is not a law that concerns the legal situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution. Therefore, it abrogated the Order of the National Assembly by which it rejected a request to call a legislative referendum.
 
 
Mag. Miroslav Mozetič
President
 
U-II-1/15
28 September 2015
 
DECISION
 
At a session held on 28 December 2015 in proceedings to decide on a dispute on the admissibility of a referendum initiated upon the request of the proposers of the referendum, Metka Zevnik, Kranj, and Aleš Primc, Ljubljana, the Constitutional Court
 
decided as follows:
 
The Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (MFRA‑D, EPA 257-VII), dated 26 March 2015 (Official Gazette RS, No. 20/15) is abrogated.
 
REASONING
 
1. On 3 March 2015, the National Assembly adopted the Act Amending the Marriage and Family Relations Act (EPA 257-VII, hereinafter referred to as the MFRA-D). On 10 March 2015, Metka Zevnik and Aleš Primc, co-leaders of Koalicija "Za otroke gre!” [the “It’s about the Children!” Coalition], and a group of voters filed a petition to call a subsequent referendum on the MFRA-D. The President of the National Assembly determined 23 March 2015 as the first day of the time period for collecting voters’ signatures in favour of the request to call the referendum and 26 April 2015 as the last (the thirty-fifth) day of this time period. On 26 March 2015, the National Assembly adopted the Order Rejecting the Scheduling of a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (hereinafter referred to as the Order), by which it established that the petition to call the legislative referendum on the MFRA‑D referred to a law concerning which, in accordance with the fourth indent of the second paragraph of Article 90 of the Constitution, a referendum is not admissible, and thus rejected the request to call the referendum. It concurrently decided that, on the basis of mutatis mutandis application of the fourth paragraph of Article 21 of the Referendum and Popular Initiative Act (Official Gazette RS, No. 26/07 – official consolidated text – hereinafter referred to as the RPIA), as of the day of the adoption of the mentioned Order the collecting of voters’ signatures in favour of the request to call the referendum shall be discontinued. The Order was served on Metka Zevnik and Aleš Primc, jointly with a note from the National Assembly, in which it was explained to them that within 7 days of the service of the Order, on the basis of mutatis mutandis application of the first paragraph of Article 21 in conjunction with Article 22 of the RPIA, the proposer of the referendum can initiate proceedings before the Constitutional Court. On 2 April 2015, the petitioners of the request to call the referendum (hereinafter referred to as the petitioners of the referendum) initiated proceedings before the Constitutional Court regarding the admissibility of the referendum on the MFRA-D.
 
2. The petitioners of the referendum allege that the fact that the MFRA-D was adopted in an expedited procedure was contrary to the third and fourth indents of the first paragraph of Article 142 of the Rules of Procedure of the National Assembly (Official Gazette RS, No. 92/07 – official consolidated text, 105/10, and 80/13 – hereinafter referred to as the RoPNA-1), as the amendment did not refer to either proceedings before the Constitutional Court or a decision of the Constitutional Court, nor was it a simple amendment. They allege that the six-month harmonisation time period imposed by Decision No. U-I-425/06, dated 2 July 2009 (Official Gazette RS, No. 55/09, in OdlUS XVIII, 29), has indeed already elapsed, however, as regards the established unconstitutionality, the Constitutional Court decided that, until the Same-Sex Civil Partnership Registration Act (Official Gazette RS, No. 65/05 – hereinafter referred to as the SSCPRA) is harmonised with the Constitution, the same inheritance rules shall apply for inheritance between same-sex partners in registered same-sex partnerships as apply for inheritance between spouses, which entails that de facto there is no longer any unconstitutionality. As regards the assumption that the amendment of the Act is a simple one, they draw attention to the fact that the MFRA-D is not directed merely towards eliminating the mentioned established unconstitutionality in the field of inheritance law, but – for the mere reason that it changes the meaning of the established constitutional term “marriage” – it would have a series of legal consequences in different sectoral laws regarding which no discussion was held in the National Assembly. Allegedly, the adoption of the MFRA-D in an expedited procedure is also inconsistent with the orientation of Article 89 of the Constitution, in accordance with which the legislative procedure is, as a general rule, a multiphase procedure, and the expedited procedure is merely an exception to this rule, which is determined by the RoPNA-1. Furthermore, the MFRA-D was allegedly also drafted and adopted contrary to the provisions of the Resolution on Legislative Regulation (Official Gazette RS, No. 95/09 – hereinafter referred to as the Resolution).
 
3. According to the petitioners of the referendum, the Order is an individual act that regulates a concrete public-law relation; namely, it halts the collection of signatures of voters supporting the request to call the precisely determined referendum. Therefore, if the General Administrative Procedure Act (Official Gazette RS, Nos. 24/06 – official consolidated text, 126/07, 65/08, 8/10, and 82/13) were applied mutatis mutandis, the Order should have contained all the elements of a decision, including legal instructions (regarding an appeal or legal remedy). Since the Order does not contain these elements, the petitioners’ right to legal remedies determined by Article 25 of the Constitution was allegedly violated. According to the petitioners of the referendum, the Order is erroneous, deficient, and unfounded from both the procedural and substantive aspects, which allegedly in itself entails a violation of the constitutional right to the equal protection of rights determined by Article 22 of the Constitution.
 
4. The petitioners of the referendum allege that the National Assembly adopted the Order without an appropriate legal basis that would confer thereon the power to decide in such manner. They opine that neither the Constitution nor any law confer on the National Assembly the power to decide to reject a request to call a legislative referendum by an order or by some other individual and concrete act. In the opinion of the petitioners of the referendum, the interpretation of Article 21 of the RPIA in the sense of creating a legal basis for the National Assembly to adopt a declaratory order is contrary to the fundamental constitutional principle of a state governed by the rule of law determined by Article 2 of the Constitution and Article 153 of the Constitution, and entails a misuse of power. Therefore, Point 1 of the Order concerning the establishment of the unconstitutionality of the regulation of marriage and family relations currently in force is allegedly unconstitutional and illegal. In this respect, the National Assembly refers, allegedly without factually substantiated grounds, to Decisions of the Constitutional Court No. U-I-425/06 and No. U-I-212/10, dated 14 March 2013 (Official Gazette RS, No. 31/13), by which this Court only remedied the unconstitutional situation in a narrow segment of the regulation of property relations, which entails a minor scope of legal entitlements compared with the [aggregate] scope of [all] legal positions that are allegedly regulated by the MFRA-D. Furthermore, it allegedly follows from the mentioned Decisions that the established unconstitutionalities are remedied directly on the basis of the manner of implementation that the Constitutional Court determined in these Decisions. Allegedly, it is thus all the more unusual that the National Assembly refers to cases in which the Constitutional Court established an unconstitutionality of completely other regulations, i.e. of the Inheritance Act (Official Gazette SRS, Nos. 15/76 and 23/78, and Official Gazette RS, No. 67/01 – hereinafter referred to as the IA) and of the SSCPRA, but not of the Marriage and Family Relations Act (Official Gazette RS, No. 69/04 – official consolidated text – hereinafter referred to as the MFRA) as the key grounds for proving that the statutory regulation [of marriage and family relations] in force is unconstitutional as alleged. With regard to the above, it is not possible to concur, in the opinion of the petitioners, with the position of the National Assembly that preventing the entry into force of the MFRA-D remedies an unconstitutional situation in the field regulated by the MFRA [sic].
 
5. Allegedly, contrary to the transitional provision of the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 – hereinafter referred to as UZ90, 97, 99), the National Assembly has thus far not regulated a legal remedy and the procedure on the basis of which the Constitutional Court would be able to decide by clear rules in disputes regarding the admissibility of calling referendums. Similarly, it allegedly failed to regulate the time limit within which it is possible to exercise such legal remedy. The petitioners of the referendum allege that the seven-day time limit prescribed by the RPIA by which the National Assembly must adopt a decision regarding a received request to call a referendum cannot be applied mutatis mutandis to filing a legal remedy by the proposers of a referendum against the decision of the National Assembly. Such a short time limit allegedly cannot entail a time limit within which the proposers of referendums can effectively exercise the right to challenge the decision of the National Assembly. In doing so, the National Assembly allegedly intentionally ex ante prevented the drafting and filing of a request to call a referendum and thus hollowed out the right to participate in the management of public affairs (Article 44 of the Constitution) and the right to a referendum (Article 90 of the Constitution). Allegedly, it thereby violated the principle of a democratic state governed by the rule of law (Articles 1 and 2 of the Constitution) and also acted contrary to the second paragraph of Article 3 of the Constitution. Allegedly, this is also a direct violation of the right to the equal protection of rights determined by Article 22 of the Constitution.
 
6. The petitioners of the referendum allege that the substance of the MFRA-D, i.e. its legal consequences, entail much more than merely remedying the unconstitutionality in the field of human rights established by the [mentioned] two Decisions of the Constitutional Court. Namely, by abolishing the condition that two persons wishing to marry or to become common-law partners must be of different sexes (Articles 1 and 2 of the MFRA-D), and by introducing the possibility that same-sex couples adopt children (e.g. Articles 135 and 138 of the MFRA in conjunction with Articles 1 and 2 of the MFRA-D), the amendment creates legal consequences in numerous fields. They draw attention to the fact that the MFRA-D is in fact not a systemic Act; however, what is at issue is a far-reaching systemic modification that horizontally modifies a series of laws that the National Assembly did not even list in the reasoning of the amendment. It is [allegedly] not clear from the reasoning which provisions of the laws in force are unconstitutional and for which constitutional reasons this is the case, why it is precisely the MFRA-D that remedies the unconstitutionality thereof, and whether the presumed remedying was carried out in a constitutionally consistent manner (Decision of the Constitutional Court No. U-II-3/11, dated 8 December 2011, Official Gazette RS, No. 109/11). Furthermore, [they allege that] there is no need to change the meaning of the term marriage in order to remedy the presumably inadmissible unequal position of same-sex partnerships in different fields of legal regulation. [Allegedly,] the legislature could have remedied the unconstitutionalities that in this field were established by the Constitutional Court, and also other unconstitutionalities that the legislature was able to establish itself (on the basis of appropriate arguments), but in such a manner that would not exclude citizens from the decision-making process. [According to the petitioners,] the constitutional regulation does not allow individual statutory provisions to be subject to deciding in a referendum. By the procedure according to which the legislature entangled constitutionally relevant provisions with constitutionally neutral provisions, and such provisions that it was aware a significant part of civil society opposes, it actually attempted to misuse the fourth indent of the second paragraph of Article 90 of the Constitution. Hence, remedying the concrete unconstitutionalities established by the Decisions of the Constitutional Court cannot entail grounds for prohibiting the referendum on the MFRA-D.
 
7. Allegedly, the National Assembly erroneously understands the amendment of the MFRA, namely as pertaining to the framework of the provision on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms within the meaning of the fourth indent of the second paragraph of Article 90 of the Constitution. In order to interpret this constitutional provision correctly, it is necessary to take into consideration the recent case law of the European Court of Human Rights (hereinafter referred to as the ECtHR), in particular the Judgments in Hämäläinen v. Finland, dated 16 July 2014, and in Schalk and Kopf v. Austria, dated 24 June 2010, from which it follows that, from the viewpoint of the ECtHR, the regulation of marriage and the possibility to adopt children is constitutionally neutral; the legislature has the possibility to grant same-sex couples the right to adopt children or not. However, the petitioners of the referendum believe that, within the framework of the constitutional regulation in the Republic of Slovenia, there are no reasons to grant same-sex couples such a possibility. They allege that there are no constitutional reasons to equalise partnership, i.e. the legally-regulated partnership of two persons of the same sex, and marriage, i.e. the legally-regulated partnership of a man and a woman. They believe that this is a political issue that can be regulated, in accordance with the principle of the separation of powers, by the legislator (i.e. the National Assembly or the people in a referendum), but not by the Constitutional Court.
 
8. The petitioners of the referendum allege that the regulation of family law relations in force, i.e. the institutes of marriage and common-law marriage, is not unconstitutional, as everyone fulfilling the conditions therefor is free to form such [unions] under the same conditions. The petitioners allege that the entry into force of the MFRA-D would either create – in a non-transparent manner and contrary to the allegations of the National Assembly – various new obligations of or limitations on same-sex partners, or unnecessarily create the need to amend numerous laws. They opine that not only is appropriately different treatment of different forms of partnership not unconstitutional, but such an established understanding of the principle of equality, the right to marry and a family, and the possibility to adopt children is in accordance with international law on human rights as follows from the 1948 Universal Declaration of Human Rights (Človekove pravice, Zbirka mednarodnih dokumentov [Human Rights, Collection of International Documents], Vol. I, Univerzalni dokumenti [Universal Documents], Društvo za ZN za Republiko Slovenijo, Ljubljana 1995, p. 1), the International Covenant on Civil and Political Rights (Official Gazette SFRY, No. 7/71, and Official Gazette RS, Nos. 35/92, MP, and 9/92), the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, Nos. 33/94, MP, and 7/94 – hereinafter referred to as the ECHR), and the case law of the ECtHR. They draw attention to the fact that Article 14 of the Constitution is not an independent human right, but it can only be exercised in consideration of one of the human rights and fundamental freedoms that are recognised on the constitutional or European level, which allegedly also follows from Protocol No. 12 to the ECHR (Official Gazette RS, No. 46/10, MP, and 8/10 – hereinafter referred to as Protocol No. 12 to the ECHR). Therefore, it is [allegedly] not possible to allege unequal treatment in the entire field of the legal treatment of partnerships that are in fact different, namely from the viewpoint of all rights and in all legal procedures, e.g. also from the viewpoint of the procedure for the adoption of children. The petitioners of the referendum stress that the element of differentiation between opposite-sex and same-sex partnerships is not sexual orientation but sex as a completely factual and objective circumstance. Also the MFRA‑D does not remedy the possible unjustified unequal legal treatment of individuals as a result of their sexual orientation, but as a result of their sex as an objective circumstance that is important for regulating family relations. They allege that there is no general European consensus on whether the right to marry belongs to two persons of the same sex; the differences between the state signatories of the ECHR still remain significant. The consensus that exists both among the member states of the Council of Europe and also among numerous other states in the international community is above all that the protection of the traditional form of marriage is not an impediment to the protection of the rights, freedoms, and dignity of minorities that are determined by their sexual orientation or gender identity. The petitioners of the referendum draw attention to the fact that, thus far, no national or international court, although they are favourable towards granting rights to same-sex partners, has agreed that the institute of traditional and heterosexual marriage is discriminatory, considering its purpose. The reasons for such fundamental changes in family law as envisaged by the National Assembly and [adopted] in the MFRA-D can thus be, according to the petitioners of the referendum, ideological and political at best, but not of a constitutional nature.
 
9. The petitioners of the referendum allege that from grammatical, logical, and historical interpretations of Article 53 of the Constitution there follows the conception of marriage as a union of a man and a woman. The MFRA-D strives to eliminate the objective and objectively justified reason (i.e. the male and female biological sexes) due to which both types of partnerships [i.e. marriage and common-law marriage] are actually a part of the constitutional subject matter. Such an interference entails an attempt to change the Constitution by a law, which is constitutionally inadmissible. The fact that the MFRA-D is unconstitutional allegedly also follows from the fact that, contrary to the requirements of the Constitution, the MFRA-D gives priority to the freedom of adults instead of the child’s best interests, and raises a series of questions regarding protection of the right to know one’s origin, which is protected by Article 35 of the Constitution. Inter alia, the MFRA-D introduces the possibility that also same-sex couples (either registered or not) adopt children. The petitioners of the referendum opine that this provision is unconstitutional, as it completely disregards the constitutional protected positions of children, with regard to which the provision refers to “mere” equality; however, none of the rights of same-sex partners is the subject of this equality. Not only are the modified institutes of family law in the MFRA-D contrary to the constitutional conception of the protection of family, they in fact can even undermine its essence.
 
10. By introducing the institute of “common-law same-sex partnership”, which is a new legal institute without any positive empirical references whatsoever, the MFRA-D [allegedly] excessively reduces privacy and freedom. Such an institute raises serious doubts from the viewpoint of the protection of the rights to privacy and personality rights (Article 35 of the Constitution) and the constitutional guarantee of freedom of conscience (Article 41 of the Constitution), as it unconstitutionally forces same-sex partners into a cogent regime of legal consequences that the “common-law partnership” institute brings in numerous fields. In such manner, the MFRA-D disproportionally interferes with the freedom and privacy of those who perhaps do not even want to either declare or manifest their sexual orientation, but still want to live it intimately.
 
11. Due to the abstract equalisation of different forms of partnerships, the entry into force of the MFRA-D would introduce substantial uncertainty and non-transparency into the legal order (Article 2 of the Constitution). The National Assembly risks that individual legal consequences will also arise in fields in which it did not envisage them expressly and that individual constitutional provisions will contradict individual statutory provisions.
 
12. In the opinion of the petitioners of the referendum, the entry into force of the MFRA-D would create a situation in which the right to conscientious objection of individuals in certain professions (e.g. civil registry officers or social work centre employees), as determined by Article 46 of the Constitution, could be violated. Allegedly, the fifth paragraph of Article 5 of the MFRA-D entails discrimination against spouses who do not recognise themselves in the new genderless institute of marriage, as it does not provide them the possibility to terminate their marriage. On the other hand, the transitional provision of the fifth paragraph of Article 5 of the MFRA-D [allegedly] creates a legal gap, as there are no provisions on the regulation of property and other mutual relations of same-sex partners immediately after the ex lege cessation of registered same-sex partnerships.
 
13. The petitioners of the referendum opine that the possible rejection of the request to call a referendum also does not pass the test of proportionality. They allege that the protection of a minority group and the public interest, and the prevention of incitement to unequal treatment based on sexual orientation, do not entail legitimate objectives to reject the request to call a referendum. They opine that what is at issue is not the decision-making of the majority on the rights of a minority, but the decision-making of the majority on the protection of helpless children upon the proposal of the weaker party in the political process. They also reject the argument that the referendum is inadmissible due to the fact that, allegedly, the petition to collect signatures for filing a request to call the referendum itself encourages inequality, and that the referendum campaign allegedly encourages incitement of hatred based on sexual orientation.
 
14. In the opinion of the petitioners of the referendum, the rejection of the request to call a referendum is neither an appropriate nor a proportionate measure for protecting the constitutional values that are on the scales in the event the MFRA-D does not enter into force. In the event the MFRA-D is rejected in a referendum, as regards the two established unconstitutionalities in the field of inheritance law (Decisions No. U‑I‑425/06 and No. U-I-212/10), the National Assembly would also not be bound by the one-year prohibition on adopting a decision that would be substantively contrary to the decision of the voters in the referendum, as it is the duty thereof to implement the decisions of the Constitutional Court. In the opinion of the petitioners of the referendum, in the case at issue the voters in the referendum on the MFRA-D would not vote on concrete rights and obligations that would be granted to homosexuals by different laws, but primarily on the elimination of sex as the objective circumstance relevant for regulating family law relations, adoptions of children by homosexual couples, and understanding children’s interests. Therefore, the National Assembly would be able to adopt appropriate statutory provisions that would remedy the possible concretely and precisely established unconstitutionalities in individual sectoral laws even before the expiry of the one-year period after the promulgation of the possible rejection of the MFRA-D in the referendum. However, were Article 25 of the RPIA to be interpreted strictly in the sense that the legislature must not do so within one year of the rejection of the MFRA-D in the referendum, the possible unconstitutionalities would only last six months, as the MFRA-D would only become applicable six months after entering into force. It is not possible to acquiesce to the rejection of decision-making in a referendum and thus to a direct interference with the rights determined by Articles 90 and 44 of the Constitution in order to merely gain six months. Therefore, according to the petitioners of the referendum, priority must be given to the constitutional right to decision-making in a referendum (Article 90 of the Constitution), the right to participation in the management of public affairs (Article 44 of the Constitution), the right to ensuring state protection of the family, motherhood, fatherhood, children, and young people, as well as the form of marriage and common-law marriage (Article 53 of the Constitution), and the right to free expression (Article 39 of the Constitution). Fundamental principles are also on the same side of the scales, namely the principle of a democratic state governed by the rule of law (Articles 1 and 2 of the Constitution) and the principles of the sovereignty of the people and the separation of the legislative, executive, and judicial powers (Article 3 of the Constitution). Additional weight is given by the constitutional value of the child’s best interests within the framework of family and other legal relations, as well as by the international commitment to pursue such interests, the protection of the right to privacy and personality rights (Article 35 of the Constitution), and the right to conscientious objection (Article 46 of the Constitution). They draw attention to the fact that, when reorganising the foundations of family law relations, also public opinion is not insignificant and that referendums on the regulation of family relations are a part of everyday life in constitutional democracies, and that the possible reorganisation of family relations is a matter of political consideration by the legislature and not a constitutional issue that could be followed by a rejection of the request to call a referendum.
 
15. In its reply, the National Assembly alleges that its power to adopt the challenged Order is expressly determined by the second paragraph of Section II of UZ90, 97, 99. [Allegedly,] the National Assembly may adopt an order rejecting a request to call a referendum already during the collection of signatures of voters in favour of the request to call the referendum. The legal basis for such action is provided by the second paragraph of Article 21 of the RPIA, in the interpretation of which it must be taken into consideration that a referendum procedure represents a significant interference with the legislative function of the National Assembly, as it suspends the promulgation, publication, and entry into force of a law adopted by the National Assembly. The need to resolve the disputed issues in the procedure for calling a referendum as soon as possible is pressing also due to the protection of the right of voters, to which the petition is addressed, to decision-making in a referendum (Article 90 of the Constitution) – the voters provide their signatures in bona fide that the request to call the referendum will have sufficient support, therefore it is neither fair, economical, nor reasonable to proceed with the collection of signatures if there is doubt as to unconstitutionality hanging over the proposed referendum. The power of the Constitutional Court to decide on the constitutionality of a proposed referendum already during the collection of signatures in favour of the request to call the referendum allegedly also follows from constitutional case law (Decision of the Constitutional Court No. U-II-2/03, dated 15 May 2003, Official Gazette RS, No. 52/03, and OdlUS XII, 45).
 
16. As regards judicial protection, the National Assembly alleges that the second sentence of the second paragraph of Section II of UZ90, 97, 99 expressly determines the existence and the form of judicial protection against a decision of the National Assembly on the rejection of a request to call a legislative referendum and the mutatis mutandis application of Article 21 of the RPIA. In such manner, the legal basis for constitutional protection is determined already in UZ90, 97, 99. Had the position that this [constitutional protection] is a constitutional complaint held true, UZ90, 97, 99 would determine neither a special power of the Constitutional Court nor mutatis mutandis application of Article 21 of the RPIA. Therefore, the National Assembly opines that this is a special form of constitutional protection that in the part regulated by law excludes other forms of constitutional protection regulated by the Constitution and the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text and 109/12 – hereinafter referred to as the CCA). It alleges that the petitioners of the referendum were informed of the content of the decision and the argumentation, which is important for exercising the right to judicial protection, in such manner that their right to be informed and thus the right to an effective legal remedy are not affected. Upon their request, the National Assembly provided the petitioners an additional explanation regarding the beginning of the time period for filing a legal remedy, thus enabling them to protect their rights. As regards the allegation that there are no legal instructions in the challenged Order, the National Assembly explains that legal instructions were given to the party with active standing for judicial protection. In the assessment of the National Assembly, the legal instructions are correct. In this respect, the National Assembly adds that even possibly erroneous legal instructions cannot be to the detriment of a party. With regard to all of the above, the National Assembly alleges that it did not interfere with the right to legal remedies or the right to judicial protection (Articles 23 and 25 of the Constitution) and also did not violate the right to be heard and the right to the equal protection of rights in the procedure (Article 22 of the Constitution).
 
17. As regards the procedure for adopting the MFRA-D, the National Assembly alleges that the decision on the type of procedure to be applied was not adopted unlawfully, as all the conditions for deciding on the Draft Act in an expedited procedure were fulfilled, i.e. both the substantive and procedural conditions. All the phases of the legislative procedure were carried out in accordance with the RoPNA-1 (the first reading [was deemed to be completed] with the publication of the Draft Act, the second reading was held before the competent working body, and the second and third readings were held at a session of the National Assembly). The National Assembly did not allege that the changes to the Act were “less complex” than alleged by the petitioners of the referendum. During the reading of the MFRA-D it was clearly said a number of times that a modification of the definition of marriage was being proposed by the MFRA-D. In accordance with the provisions of the RoPNA-1, all the possibly interested working bodies also had the possibility to participate in the reading of the Draft Act, however no working body of the National Assembly submitted such request. Hence, in the opinion of the National Assembly, the procedure for adopting the MFRA-D is not inconsistent with Article 89 of the Constitution.
 
18. The National Assembly rejects the allegation of the petitioners of the referendum that the MFRA-D interferes with more than 70 other laws and that the MFRA-D even amends more than 70 other laws. It states that the MFRA-D only interferes with the SSCPRA and the Rules on the Registration of Same-Sex Civil Partnerships (Official Gazette RS, Nos. 55/06 and 91/11 – hereinafter referred to as the Rules), which would cease to be in force if the MFRA-D entered into force, as the provisions thereof and the field of their regulation would no longer be needed. It is logical, however, that, all the rights and obligations that same-sex partners would acquire would be made equivalent to those determined by laws that condition rights and obligations by the existence of a marriage or a common-law marriage. Such a solution, i.e. an amendment of the MFRA, is also consistent with the principles of the concentration and effectiveness of legislative procedure. If one wished to ensure same-sex partners all the rights and obligations regarding which discrimination based on sexual orientation is constitutionally inadmissible in the opinion of the National Assembly, the National Assembly would have to interfere with more than 70 laws to ensure complete equalisation. Similarly, the interpretation of the petitioners of the referendum that the Constitutional Court should separately assess the constitutionality of more than 70 laws is inadmissible. This would entail an unnecessary burden on the individuals whose discriminatory treatment is in the process of regulation, an unnecessary burden on the regular courts due to the requirement of the exhaustion of legal remedies, and an unnecessary burden on the Constitutional Court in the event requests or petitions for a review of constitutionality are filed. It would be equally inadmissible to request from individuals who do not enjoy all rights and duties due to their sexual orientation to fight for their rights without any support from the legislature, which consists precisely of the representatives of the people elected by the citizens. Only in such a manner can consistent and effective decisions of the legislature be achieved, which is what the principle of a state governed by the rule of law determined by Article 2 of the Constitution requires. Such a solution is also consistent with the fundamental purpose of the Resolution. The MFRA-D also includes the criterion of justification, as it is expected that the option chosen to achieve the objective will have the least negative effects on the social field. The adopted amendment namely causes no additional burdens and changes, whereas amending more than 70 sectoral laws would also require all implementing acts adopted on their basis to be amended, as well as a change to all the forms and applications that are used in the procedure for adopting individual rights.
 
19. In the opinion of the National Assembly, it is also not true as alleged that the National Assembly may only remedy unconstitutionalities that have already been established and that the fourth indent of the second paragraph of Article 90 of the Constitution only refers to laws eliminating unconstitutionalities that have already been established. Even prior to the amendment of the Constitution, when the National Assembly was bound by the decision adopted in a referendum, in Decision No. U-II-3/11 the Constitutional Court adopted the position that also within that period of time the National Assembly “must protect human rights and fundamental freedoms, therefore it may always amend legislation that it deems is inconsistent with the Constitution in such a manner so as to harmonise it with the Constitution.” The fact that the intention of the constitution-framers when adopting UZ90, 97, 99 was not only to prevent voting in a referendum on laws eliminating unconstitutionalities that have already been established, but also on laws eliminating unconstitutionalities that have not yet been established by the Constitutional Court, is also evident from documents that were considered within the framework of the proposal to amend the Constitution.
 
20. The National Assembly stresses that the objective pursued by the legislature with the MFRA-D is not only to [remedy] both already established unconstitutionalities but also to comprehensively regulate and equalise all the rights and obligations of same-sex and opposite-sex couples. In instances where the statutorily determined obligations of same-sex couples and opposite-sex couples are [now being] made equivalent, the issue at stake does not concern unconstitutional limitations of the rights of same-sex couples, but about equalising the duties originating in family relations, regarding which a same-sex union and an opposite-sex union are “equal or similar”. In the opinion of the National Assembly, the factual circumstances and situations at stake are equal to those that existed when the Constitutional Court assessed the statutory regulation of inheritance (Decision of the Constitutional Court U-l-426/05), as also other laws grant rights in a manner equivalent to that in the SSCPRA and the IA. The National Assembly claims unconstitutionalities in 19 sectoral laws and mentions another 21 laws that exclude same-sex partners that have not registered their partnerships from being considered to be family members, and some of these laws do not even list registered same-sex partners as family members. In the opinion of the National Assembly, such omission of certain persons that in fact are emotionally connected and live together is damaging to the public interest and at the same time entails a violation of the principle of equality before the law, as well as discriminatory treatment.
 
21. The National Assembly claims that there is no human right to marry and that the definition of marriage in force is not inconsistent with the Constitution. It opines, however, that it is not possible to remedy all existing unconstitutionalities due to unjustified differentiation based on a circumstance referred to in Article 14 of the Constitution by a solution different than changing the definition of marriage such as is determined in the MFRA-D. The National Assembly states that, within the framework of the wide margin of appreciation and decision-making it enjoys, it merely selected the most appropriate solution by which the sole objective pursued is effectively achieved, namely to completely eliminate discriminatory treatment of same-sex couples. The National Assembly opines that there exist political, moral, and comparative arguments for opposite-sex couples and same-sex couples to be made equivalent, i.e. regardless of gender and sexual orientation. The equalisation of all rights and obligations is allegedly required by Article 14 of the Constitution and Article 1 of Protocol No. 12 to the ECHR, which the National Assembly interprets in accordance with the case law of the ECtHR [sic]. The National Assembly opines that, as regards the MFRA-D, a referendum is inadmissible precisely because the MFRA-D remedies both the unconstitutionalities that have already been established as well as all existing unconstitutionalities in sectoral legislation that has not yet been subject to constitutional assessment.
 
22. The MFRA-D encompasses a substantive change to only four articles, namely those that refer to the definition of marriage, modifying them in such manner that two persons regardless of their sex can marry. Article 7 of the MFRA clearly determines that adoption entails a special form of raising minors. The National Assembly does not interfere with this article by the amendment of the MFRA. Adoption is not a right, but remains a particular institute for the protection of minors in which the most suitable surrogate parents are found for a minor through an adoption procedure, and not the other way around. On the basis of the MFRA-D, same-sex couples will merely acquire the right to submit a proposal to initiate an adoption procedure, but not the right to adopt as such. Hence, the allegation that same-sex couples will acquire the right to adopt on the basis of the MFRA-D is erroneous. The possibility that also same-sex couples may be candidates in an adoption procedure is merely one of the logical consequences of the full statutory equalisation of same-sex and opposite-sex couples. The MFRA-D provides no basis for the conclusion that the state must ensure its citizens the right to adopt a child. [The National Assembly] cites examples of laws that allow discriminatory treatment of children living in homosexual partnerships and claims that the MFRA-D ensures that also children living in such “families” are ensured equal rights and benefits as children living in families where the parents are married or live in a common-law marriage. Also in this part, consistent respect for the constitutional provision that imposes on the state the obligation to protect the family and in particular the protection of children and young people is ensured. The National Assembly stresses that on the basis of Article 53 of the Constitution, the state is obliged to protect the family and children regardless of whether the parents or foster parents of these children live in a same-sex partnership or in an opposite-sex partnership. Allegedly, such “families” already exist and it is inadmissible that the state does not ensure them the appropriate protection required by the Constitution [sic].
 
23. According to the National Assembly, the MFRA-D and the Order pursue a number of constitutional principles, human rights, and fundamental freedoms. They both respect the principle of a state governed by the rule of law (Article 2 of the Constitution), the right to equal treatment before the law (the first and second paragraphs of Article 14 of the Constitution, Article 14 of the ECHR, Articles 2 and 4 of the United Nations Convention on the Rights of the Child (Official Gazette SFRY, No. 15/1990, the Act on Notification of Succession concerning UN Conventions and Conventions Adopted by the International Agency for Atomic Energy, Official Gazette RS, No. 35/92, MP, No. 9/92) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2 December 2000)), the right to personal dignity and safety (Article 34 of the Constitution), the right to privacy and personality rights (Article 35 of the Constitution), the right to obtain redress for the violation of human rights (the fourth paragraph of Article 15 of the Constitution), the authority of the Constitutional Court and the principle of the separation of powers (Article 2 and the second paragraph of Article 3 of the Constitution), the right to respect for one’s home, family life, care for motherhood, fatherhood, the family and children, marriage, and family (Article 53 of the Constitution and Article 8 of the ECHR), the rights and duties of parents (Article 54 of the Constitution), the right to peaceful enjoyment of property (Article 33 of the Constitution), Article 1 of Protocol No. 1 to the European Convention for the Protection of Human Rights (Official Gazette RS, Nos. 33/94, MP, 7/94), and the prohibition of incitement to discrimination and the prohibition of inflaming hatred and intolerance (Article 63 of the Constitution).
 
24. The National Assembly draws special attention to the fact that the ratification of Protocol No. 12 to the ECHR strengthened and significantly expanded protection from discrimination in the Slovene constitutional system, as it includes statutory rights. The National Assembly refers to the Judgment of the ECtHR in Sejdič and Finci v. Bosnia and Herzegovina, dated 22 December 2009, in which the ECtHR allegedly applied Article 1 of Protocol No. 12 to the ECHR as the assessment criterion.
 
25. Despite the fact that there is no human right to marry, the National Assembly opines that such regulation as proposed in the MFRA-D does not raise any doubt regarding its admissibility. Allegedly, it does not follow from the Constitution that marriage can only be concluded between two persons of opposite sex, however it is determined that “marriage is based on the equality of spouses” and that “marriages shall be solemnised before an empowered state authority.” This constitutional provision was allegedly also complied with following the adoption of the MFRA-D. Also the second paragraph of Article 53 of the Constitution, which determines that “[m]arriage and the legal relations within it and the family, as well as those within an extramarital union [i.e. common-law marriage], shall be regulated by law,” was allegedly complied with. The National Assembly states that, within the framework of Article 53 of the Constitution, the state must protect the family regardless of the circumstances referred to in Article 14 of the Constitution and also has to ensure the protection of the family in instances of same-sex couples. It also stresses that the adopted solution does not interfere in any way with the rights of other individuals or the rights of opposite-sex couples, and in this respect it mentions Decision of the Constitutional Court No. U-l-111/04, dated 8 July 2004 (Official Gazette RS, No. 77/04, and OdlUS XIII, 54). The regulation is not inconsistent with either the Constitution or international acts, and is the only effective solution that consistently remedies all types of discrimination and unequal treatment prohibited by the Constitution. The National Assembly draws attention to the position of the ECtHR in Schalk and Kopf v. Austria, in which the ECtHR did not establish a violation of the right to marry (in accordance with Article 12 of the ECHR), but allegedly nevertheless established that this right is not in all instances limited to the marriage of two persons of opposite sex, therefore it is in principle impossible to completely exclude the applicability of Article 12 of the ECHR [sic]. The National Assembly also does not see a justified reason due to which relationships between same-sex couples or partners would have to be regulated by a different and separate law, and not by the overarching law, which is the only suitable law for such regulation and subject matter.
 
26. The National Assembly also states that the full equalisation of same-sex couples and opposite-sex couples extends not only to regulation of the exercise of rights falling in the public sphere, but also to rights in the private sphere. In the assessment of the National Assembly, the prohibition of discrimination determined by Article 14 of the Constitution refers to both private and public spheres. The need to ensure equal treatment in all fields also follows from the obligations determined by Article 5 of the Constitution. This provision imposes on the state positive obligations, including the obligation to ensure equal treatment as defined by Article 14 of the Constitution and by Protocol No. 12 to the ECHR in both public and private spheres. In the private sphere, individuals namely have at their disposal a range of services, while access to some of these services also depends on a certain person being recognised as a family member. The basis for such argumentation also follows from the Judgment of the European Union in Jürgen Römer v. Freie und Hansestadt Hamburg, C‑147/08, dated 10 May 2011.
 
27. As regards the allegation that the establishment of a “common-law same-sex partnership” excessively limits privacy and freedom, the National Assembly states that the manner of regulation of common-law marriage does not play a significant part, as the purpose of the MFRA-D is to eliminate discrimination against same-sex couples and not to change the regulation of common-law marriage currently in force. As regards the alleged violation of the right to conscientious objection, the National Assembly states that the statutory determination of this right is not a subject of regulation in the MFRA-D, therefore there is no need for a special regulation in the MFRA that would depart from the regulation determined in the Public Servants Act (Official Gazette RS, Nos. 63/07 – official consolidated text and 65/08), in accordance with which civil registry officers also now do not have the right to conscientious objection. A solution that would allow a conscientious objection to be raised only with regard to marriages of same-sex couples could be inappropriate or inadmissible.
 
28. According to the National Assembly, it is evident from all the mentioned arguments and facts that the MFRA-D cannot and must not be the subject of decision-making in a referendum as it falls within the group of laws regarding which the second paragraph of Article 90 of the Constitution determines that a referendum may not be called.
 
29. The Constitutional Court sent the reply of the National Assembly to the petitioners of the referendum, who maintain the allegations contained in the request. They allege that the Koalicija "Za otroke gre!” [the “It’s about the Children!” Coalition] support the regulation of all social rights and duties of same-sex couples that are based on their cohabitation. However, they are opposed to the possibility of same-sex couples adopting children and the right of same-sex couples to decide to have children. They opine that the National Assembly could have regulated the rights of same-sex couples in a different legislative manner, namely by amending the SSCPRA. They supplemented their allegations regarding the unconstitutionality of the MFRA-D with the [argument] that [this Act] was adopted in an expedited procedure and the fact that the definition of marriage in force, i.e. a union between a man and a woman, is not unconstitutional, which also follows from the reply of the National Assembly. The petitioners of the referendum allege that there is no right to a same-sex marriage, therefore the decision whether such partnerships should be recognised or not does not concern human rights or any other unconstitutionalities, but an issue of a political nature. They are opposed to the position of the National Assembly that opposite-sex couples and same-sex couples are in an equal position, as such position is based on denial of the natural fact that only a man and a woman [together] can have biological children. According to the petitioners of the referendum, such an understanding of the principle of equality entails a legally positivistic abolition of [the recognition of] the natural significance of a union between a man and a woman for the birth and development of children, and for raising them. The petitioners of the referendum also allege that the National Assembly failed to regulate the right to conscientious objection in the fields of, for instance, education, marrying, social care, and the judiciary, due to which the right to conscientious objection – in conjunction with the right to freedom of conscience (or freedom of religion) – of individuals in certain professions could be violated. Hence, by [adopting] the MFRA-D, the legislature allegedly created an unconstitutional legal gap in the statutory regulation that is inconsistent with the principle of the precision and predictability of legal regulations (the principles of a state governed by the rule of law determined by Article 2 of the Constitution). As regards the protection of the family in international law, the petitioners of the referendum state that the majority of legal systems recognise the institute of marriage and protect it, in light of the fundamental interest of every society to self-preservation, as the elementary procreative social unit. Also international law is in line with such, and therein the principle that the traditional family based on marriage is the fundamental social unit is accepted as indisputable. According to the petitioners of the referendum, also the constitution-framers followed such doctrine, which recognised the natural institute of marriage in Article 53 of the Constitution.
 
30. The Constitution does not in fact precisely determine that [future spouses] must be of different sexes in order to be able to marry, but in the opinion of the petitioners of the referendum this is self-evident. They state that Article 53 of the Constitution cannot be understood in a manner in which the constitution-framers would leave this question to be regulated by the legislature. They draw particular attention to the fact that also in international legal instruments the opposite-sex character of matrimony is not expressly (expresis verbis) mentioned, which confirms the fact that marriage is a pre-legal institute and that [the condition of being of] opposite sex is self-evident to such an extent that the contracting states never concretely and specifically expressed it, but always implied it in individual legal terms. The opposite-sex character is namely directly indicated by the provisions of conventions that refer to men and women, as well as the provisions regarding spouses, the family, etc. In international instruments, all of these terms are understood in such a manner that they refer to the traditional family. In the opinion of the petitioners of the referendum, also consideration of the rationale and the effects of the international norm regarding the equality of spouses leads to such an understanding of international law. The norm regulating the equality of spouses is namely based on legal equality, which presupposes that the two sexes are different. As soon as homosexual matrimony is introduced, this provision loses its rationale. Also among the state signatories of the ECHR there does not (as yet) exist a sufficient consensus regarding the abolition of [the condition that future spouses] must be of opposite sex as the qualificatory circumstance for entering into a valid marriage.
 
 
B – I
 
31. In accordance with the first sentence of the second paragraph of Article 3 of the Constitution, in Slovenia power is vested in the people. In accordance with the second sentence of the second paragraph of this Article, the people exercise this power directly or [indirectly] through elections, consistent with the principle of the separation of powers. The people exercise this power directly or directly participate in its exercise in the recognised forms of so-called direct democracy, among which the referendum also falls. This is a form of voters’ direct decision-making on the Constitution, a law, some other legal act, or any other issue that is important for the social community. It entails the right of all citizens who have the right to vote in elections or in referendums to decide, by a general vote, on an individual act of (as a general rule) the representative body. From the viewpoint of the functioning of the power of the state, [a referendum] entails a manner of participation of the people in adopting the most important legal and political decisions that otherwise fall within the competence of the representative body.[1] In this case, also the people feature alongside the representative body as the legislator.
 
32. Although in Slovenia the people exercise power indirectly through their representatives in the National Assembly or directly in a legislative referendum, neither of these two types of democratic exercise of power is without limitations. Namely, the Republic of Slovenia is a constitutional democracy, the essence of which is that the values protected by the Constitution prevail also over the democratically adopted decisions of the majority (cf. Decision of the Constitutional Court No. U-I-111/04). All governing power may only be exercised within the confines of the Constitution and every authoritative decision must fall within the ambit of the constitutionally admissible possibilities. For instances where the National Assembly as the general representative body adopts unconstitutional statutory solutions, there is a mechanism determined already in the Constitution by means of which such solutions can be eliminated from the legal order – namely by a decision of the Constitutional Court in proceedings to review the constitutionality of a law (Decision of the Constitutional Court No. U-II-2/09, dated 9 November 2009, Official Gazette RS, No. 91/09, and OdlUS XVIII, 50, Para. 8).
 
33. The Constitution regulates the legislative referendum in Article 90, which was amended by UZ90, 97, 99. In accordance with the first paragraph of Article 90 of the Constitution, the National Assembly calls a referendum on the entry into force of a law if so required by at least forty thousand voters. The second paragraph of Article 90 of the Constitution determines the instances wherein a referendum is inadmissible. Namely, a referendum may not be called:
– on laws on urgent measures to ensure the defence of the state, security, or the elimination of the consequences of natural disasters;
– on laws on taxes, customs duties, and other compulsory charges, and on the law adopted for the implementation of the state budget;
– on laws on the ratification of treaties;
– on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.
In accordance with the third paragraph of Article 90 of the Constitution, the right to vote in a referendum is held by all citizens who are eligible to vote in elections. On the basis of the fourth paragraph of Article 90 of the Constitution, a law is rejected in a referendum if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law (the rejection quorum). In accordance with the fifth paragraph of Article 90 of the Constitution, the regulation of the manner of implementation of the legislative referendum is left to statutory regulation.[2]
 
34. The constitutional amendment requires that the RPIA be harmonised within one year (the first paragraph of Section II of UZ90, 97, 99). Until [the RPIA] is harmonised, in accordance with the second paragraph of Section II of UZ90, 97, 99, Article 21 of the RPIA applies mutatis mutandis such that the Constitutional Court decides on any dispute between the proposer of a referendum and the National Assembly, if the latter rejects a request to call a legislative referendum.
 
35. It follows from the first paragraph of Article 90 of the Constitution that a legislative referendum is called by the National Assembly, that the subject of a referendum is a law in its entirety (and not individual questions relating thereto), that the referendum is a subsequent referendum (i.e. on a law that the National Assembly has already adopted but which has not yet entered into force), and that the question decided on in the referendum is whether the law should enter into force (i.e. it is a so-called suspensive referendum, because the request to call the referendum suspends the entry into force of the law in question until a decision is made in the referendum).
 
36. The regulation of the legislative referendum in force differs in many aspects from the regulation previously in force. Prior to this amendment, the Constitution regulated the legislative referendum such that the National Assembly was able to call a referendum on its own initiative, however it was obliged to call one if so required by at least one third of the deputies, by the National Council, or by forty thousand voters. Compared to the regulation previously in force, the possibility of initiating a referendum is now significantly narrower, as it is only open to voters. Another significant change is the determination of instances in which it is inadmissible to call a referendum. In accordance with the previous regulation, it was admissible to call a referendum on any issue that could be the subject of regulation by law. However, also under the previous regulation the right to request the calling of a legislative referendum was not absolute in the sense that a referendum was always admissible when the conditions for calling a referendum determined by the second paragraph of Article 90 were fulfilled. The Constitutional Court adopted such position already in Decision No. U-I-47/94, dated 19 January 1995 (Official Gazette RS, No. 13/95, and OdlUS IV, 4), in which it proceeded from the fact that, parallel to the right guaranteed by the second paragraph of Article 90 of the Constitution, there can also exist other, equally constitutionally guaranteed, values that have to be ensured constitutional protection; in individual cases, the weight of these constitutional values is so significant that the right to request the calling of a legislative referendum must give way. The first paragraph of Article 21 of the RPIA was also based on such [an understanding], on the basis of which – even if the conditions determined by the second paragraph of Article 90 of the Constitution were fulfilled – a referendum was not carried out if the Constitutional Court assessed that unconstitutional consequences would arise due to the suspension of the entry into force of the law or due to its rejection in a referendum. Contrary to the previous regulation, the second paragraph of Article 90 of the Constitution expressly determines four legislative areas or types of laws regarding which a referendum may not be called. The third significant change is the determination of new conditions for the validity of the decision in a referendum. Namely, on the basis of the fourth paragraph of Article 90 of the Constitution, a law is rejected in a referendum if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law (the rejection quorum).[3] Hence, the rejective post-legislative referendum introduced by the constitution-framers in the last constitutional amendment is a means to prevent the entry into force of a legal act adopted by the representative body that the voters are opposed to (a veto by the people).[4]
 
37. The petitioners of the referendum allege that, considering the wording of the second paragraph of Section II of UZ90, 97, 99, the National Assembly should not have decided on the admissibility of the referendum already in the phase of collecting signatures in favour of the request to call a referendum but only after (if) forty thousand signatures had already been collected and the petitioner of the referendum had become the proposer of the referendum in accordance with the RPIA.
 
38. UZ90, 97, 99 indeed determines that the Constitutional Court shall decide on any dispute between the National Assembly and “the proposer of a referendum”. However, this provision cannot be understood in a manner such that the National Assembly may only decide to reject a request to call a referendum once forty thousand signatures in favour of the request to call a referendum have already been collected and the petitioner of the referendum has become the proposer of the referendum within the meaning of the RPIA. The term “proposer of the referendum” is an autonomous constitutional term that signifies both the petitioner of a referendum and the proposer of a referendum within the meaning of the RPIA. The reason for the admissibility of the possibility of the National Assembly deciding to reject a request to call a referendum already in the phase of collecting signatures follows from the fact that the laws regarding which a referendum is inadmissible in accordance with the second paragraph of Article 90 of the Constitution protect important constitutional values (i.e. the defence of the state, security, or the elimination of the consequences of natural disasters), ensure fundamental tax and financial bases, as well as sources for financing the state, enable the implementation of the state budget, or eliminate unconstitutionalities in the field of human rights and fundamental freedoms or any other unconstitutionalities. As regards the objectives pursued by these laws, it is necessary to enable any doubts regarding the constitutionality of decision-making in a referendum to be resolved as soon as possible, and hence to enable the legislative procedure in the broader sense to be completed as promptly as possible,[5] which leads to the final decision whether a certain law that the National Assembly has already adopted should enter into force.
 
39. Allowing the National Assembly to decide whether to reject a request to call a referendum already in the phase of collecting signatures in favour of the request to call a referendum benefits voters as well. When the President of the National Assembly determines the time period for collecting signatures, the citizens are called upon to decide whether they support the content of the request to call a referendum on a certain law. This question is put to all citizens with the right to vote. The question that is raised in that phase of the procedure for calling a legislative referendum is essentially the same as the question that would be put in a referendum, provided that it obtains the necessary support. In both the first and second instances it is the same target population that is being asked [a question]. Merely because collecting signatures in this phase of the procedure does not yet have the status of a request within the meaning of Article 12 of the RPIA, although this is already a substantively defined request that only needs the support of voters, it is not reasonable to wait for the petition to also formally become a request (and hence to delay the entry into force of the law), if it is manifest already in that phase that subsequently it will not be admissible to put the question at issue to the same target population.[6] Therefore, taking into consideration also the second paragraph of Article 21 of the RPIA, in the new constitutional regulation of the referendum the constitutional term “proposer of a referendum” must be understood in the sense that the National Assembly may decide to reject a request to call a referendum already in the phase of collecting signatures in favour of the request to call the referendum and that also the petitioner of the referendum may initiate proceedings before the Constitutional Court as regards such decision [of the National Assembly].
 
40. By the challenged Order, the National Assembly rejected the request to call a referendum regarding the MFRA-D, as in its view this is a law eliminating an unconstitutionality in the field of human rights and fundamental freedoms. In view of the above, the Constitutional Court must answer the question of whether this concerns the legal situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution. Therefore, it must assess whether the MFRA-D is a law by which the legislature has eliminated an unconstitutionality in the field of human rights and fundamental freedoms.
 
41. In accordance with the fourth indent of the second paragraph of Article 90 of the Constitution, a referendum may not be called on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality. It is a logical imperative that eliminating an unconstitutionality presupposes that such an unconstitutionality has already been established beforehand. It is namely impossible to [intentionally] eliminate something whose existence is completely unknown to the subject eliminating it.
 
42. Hence, the question is which unconstitutionality the fourth indent of the second paragraph of Article 90 of the Constitution refers to and who established the unconstitutionality whose elimination is the subject of the law in question. The second sentence of the second paragraph of Article 3 of the Constitution enshrines the principle of the separation of legislative, executive, and judicial powers. Within the system of the separation of powers, in accordance with the first indent of the first paragraph of Article 160 of the Constitution, the Constitutional Court has the power to assess the constitutionality of regulations adopted by the legislative power.[7] Such entails that the Constitutional Court is entrusted with [the power] to establish unconstitutionalities authoritatively and with finality. Therefore, the wording of the fourth indent of the second paragraph of Article 90 of the Constitution, which refers to the elimination of an unconstitutionality, must be understood in the sense that a referendum may not be called only with regard to laws eliminating an unconstitutionality that the Constitutional Court has already established by a decision and with regard to laws eliminating a violation of a human right that has been established by a judgment of the ECtHR (Article 8 of the Constitution and Article 46 of the ECHR).
 
43. Such an understanding of the fourth indent of the second paragraph of Article 90 of the Constitution follows already from the historic and comparative interpretation of the previous and current regulation of the subsequent legislative referendum. Prior to the amendment of Article 90 of the Constitution, the Constitutional Court decided on the admissibility of referendums on the basis of Article 21 of the RPIA, as the regulation previously in force did not determine the instances in which a referendum would be inadmissible. In fact, even then the right to request the calling of a legislative referendum was not absolute in the sense that a referendum would always be admissible whenever the conditions for calling a referendum determined by the second paragraph of Article 90 were fulfilled. Even if the conditions determined by the second paragraph of Article 90 of the Constitution were fulfilled, on the basis of the first paragraph of Article 21 of the RPIA a referendum was not carried out if the Constitutional Court established that unconstitutional consequences would arise due to the suspension of the entry into force of the law or due to its rejection in a referendum. Hence, the regulation previously in force allowed the Constitutional Court to assess any possible unconstitutionality, even such unconstitutionalities that the Constitutional Court had not already established, and allowed it to balance the right to a referendum, on the one hand, and the weight of the possible unconstitutional consequences of the referendum, on the other (e.g. Decisions of the Constitutional Court No. U-II-1/09, dated 5 May 2009, Official Gazette RS, No. 35/09, and OdlUS XVIII, 20, No. U-II-2/09, and No. U-II-1/12, U-II-2/12, dated 17 December 2012, Official Gazette RS, No. 102/12, and OdlUS XIX, 39).
 
44. On the one hand, such entailed that the Constitutional Court had to form substantive assessment criteria regarding the (in)admissibility of referendums, which it progressively built as its case law developed.[8] This had an impact on the predictability of decision-making and thus on the factual position of petitioners and proposers of referendums. On the other hand, such regulation required assessment of whether an unconstitutional situation exists as the preliminary question in the procedure for decision-making on the admissibility of a referendum, which is a part of the legislative procedure in the broader sense. All of that additionally complicated the legislative procedure and rendered it more difficult, and also delayed the entry into force of laws that the National Assembly had already adopted. Also the constitution-framers were aware of this deficiency.[9] In accordance with the principles of a state governed by the rule of law, in order to ensure in advance the clarity of which referendums are admissible and which are not, in the second paragraph of Article 90 of the Constitution the constitution-framers expressly, clearly, and precisely stated the instances in which a referendum may not be called. They clearly stated that in these exhaustively listed instances the right to a referendum does not even exist.
 
45. The difference between the two regulations is, hence, of crucial importance. Not only does the concept “the possibility that unconstitutional consequences arise” have a broader meaning than the concept “elimination of an unconstitutionality”, but, where the legislature eliminates an unconstitutionality (i.e. it implements a decision of the Constitutional Court or a judgment of the ECtHR), in accordance with the new constitutional regulation of referendums, also the right to a referendum is excluded in advance. In this respect, a balancing of the right to a referendum and other constitutional values that are implemented by a law transposing a decision of the Constitutional Court or a judgment of the ECtHR has already been carried out by the constitution-framers. They gave absolute priority to respect for the decisions of the Constitutional Court, judgments of the ECtHR, and the constitutional values protected by such decisions.
 
46. By expressly listing the instances in which a referendum may not be called, the constitution-framers eliminated the unpredictable and unclear aspects in a sensitive field of (the exercise of) the right to request the calling of a referendum and the right to vote in a referendum. The new regulation ensures a clear, precise, and transparent referendum procedure, creates conditions for completing the legislative procedure in a prompter manner, and makes the referendum procedure predictable, thus improving the position of interested entities (i.e. the possible petitioners and proposers of referendums, including the National Assembly), and, at the same time, by excluding the possibility of a referendum in certain cases determined in advance, effectively protects important constitutional values that would be jeopardised as a result of holding a referendum. Express determination of laws regarding which a referendum may not be called also eliminates the risk of an arbitrary assessment of the admissibility of a referendum, as it imposes clearer criteria for such assessment and at the same time clearly indicates to potential proposers when a referendum may not be called. The clearer and more unambiguous rules are, the fewer unclear aspects there are regarding their interpretation and application, and consequently the fewer disputes as well.
 
47. Naturally, the position according to which the fourth indent of the second paragraph of Article 90 of the Constitution only refers to laws eliminating unconstitutionalities that have already been established by the Constitutional Court or the ECtHR does not entail that the National Assembly may not at its discretion amend statutory regulations that it deems to be inconsistent with the Constitution. Namely, in accordance with the Constitution, the legislature has the duty to ensure that the legal acts it adopts are in conformity with the Constitution (Articles 87 and 153 of the Constitution). As the bearer of the legislative function, the legislature has to respond to the needs in all areas of life in society, which is all the more true if the needs in question concern the foundations of the functioning of the state or the ability to effectively ensure human rights and fundamental freedoms.[10] In performing the legislative function, it is bound only by the Constitution and in such framework it alone decides which matters it will regulate by law and in what manner. However, the first sentence of the second paragraph of Article 3 of the Constitution enshrines the principle of popular sovereignty,[11] in accordance with which all the power in the state stems from the people and belongs to the people, while the bearers of power act as representatives of the people. From the principle of popular sovereignty there follows the principle of a democratic state (Article 1 of the Constitution), within which there exist two manners of exercising popular sovereignty – indirect and direct. The referendum is the most important form of the direct participation of the people in the exercise of power. The existence of a referendum in an individual system necessarily entails that the representative body is not the only legislator, since the people, too, are a legislator.[12]
 
48. In accordance with the Constitution, both the representative body and the people themselves have the freedom to make legislative decisions. However, neither the legislature nor the people have legislative freedom as regards the obligation to implement the decisions of the Constitutional Court or the ECtHR. It would be superfluous to reiterate that the decisions of the Constitutional Court and the judgments of the ECtHR are binding on the National Assembly and that the latter has the duty to implement them within the imposed time limits. Disrespect for such decisions entails a severe violation of the principles of a state governed by the rule of law determined by Article 2 of the Constitution and the principle of the separation of powers determined by the second paragraph of Article 3 of the Constitution.[13] The Constitution, the decisions of the Constitutional Court, and the judgments of the ECtHR are not only binding on the National Assembly as the legislature, but also on citizens when they exercise power directly by voting in a referendum on a particular law.[14]
 
49. This is precisely the reason why in the cases referred to in the fourth indent of the second paragraph of Article 90 of the Constitution the National Assembly has the duty to prevent a referendum. In all the other instances, where the representative body eliminates an alleged unconstitutionality in the field of human rights or fundamental freedoms at its discretion, the will of the representative body cannot outweigh the right of the people to perform the legislative function directly by voting in a referendum. The interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution according to which the elimination of an unconstitutionality only entails the elimination of an unconstitutionality that has already been established by the Constitutional Court or the ECtHR is therefore also in favorem of the right to a referendum. The constitution-framers excluded this right in advance but only as regards a list of narrowly defined situations. For instances where, on the basis of the will of the people, allegedly unconstitutional statutory solutions would enter into force, the Constitution provides effective mechanisms by means of which such provisions can be eliminated from the legal order – namely by a decision of the Constitutional Court in proceedings to review the constitutionality of a law on the basis of a request submitted by the entitled applicants referred to in the first paragraph of Article 23a of the CCA, on the basis of a petition when the petitioners demonstrate legal interest, or in proceedings in accordance with Article 30 and the second paragraph of Article 59 of the CCA.
 
50. In view of the reasons stated above, including the pursued objectives stated in the fourth indent of the second paragraph of Article 90 of the Constitution (see Para. 46 of the reasoning), the intention of the constitution-framers, which is not clearly evident from the text itself and from the regulation as a whole, and which also does not have a clear and unambiguous basis in the file concerning the amendment of the Constitution, is not relevant for the interpretation of this constitutional provision.[15] The legal interpretation of a normative text is namely directed towards the objectively valid rationale of the legal rule and is not limited to assessing the objective that the author of that text possibly had in mind.[16] Furthermore, it follows already from the literal interpretation that the phrase “established unconstitutionality” entails a pleonasm, because (as explained in Para. 41 of the reasoning), by the nature of the matter, only something that the person eliminating it knows already exists can be subject to elimination. Although the constitution-framers did not follow the proposal of the Expert Group of the Constitutional Commission, which proposed the diction “eliminating an established unconstitutionality”, and did not include the word “established”, that does not in and of itself mean that a referendum is also inadmissible when the legislature is eliminating an unconstitutionality it has established itself. Namely, if the adjective “established” had remained in the text, it would still have remained unclear which authority is called upon to establish unconstitutionalities (e.g. the National Assembly, the proposer of the law, the legal profession, expert advisory services together with the proposer of the law, separate opinions of Constitutional Court judges, etc.). Yet, Article 160 of the Constitution provides a clear answer; it is the Constitutional Court that has the power to establish unconstitutionalities with erga omnes effect. However, when rights contained in the ECHR are concerned, it is the ECtHR.
 
51. Hence, in accordance with the fourth indent of the second paragraph of Article 90 of the Constitution, a referendum may not be called on laws eliminating an unconstitutionality in the field of human rights or fundamental freedoms that has already been established by the Constitutional Court or the ECtHR. However, this provision understandably cannot be interpreted in a manner such that a referendum may not be called in cases where the legislature adopts a statutory regulation by which it indirectly, by means of the effects such statutory regulation produces in other legal fields, eliminates an unconstitutionality that the Constitutional Court or the ECtHR have already established. Namely, in such cases the legislature amends the regulation regarding issues that are not directly connected with the established unconstitutionality. It is true, however, that the National Assembly as the legislature may autonomously choose, within the framework of its powers, how and by which law it will eliminate an unconstitutionality established by the Constitutional Court or by the ECtHR. If it does so in an indirect manner by amending other regulations that have not been established to be unconstitutional or regulates anew a certain field, this certainly is an expression of its legislative freedom. However, the same amount of legislative freedom held by the National Assembly is also held by the people. Therefore, such elimination of an established unconstitutionality cannot entail grounds for the inadmissibility of a referendum.
 
 
B – II
 
52. The MFRA-D directly amends the definition of marriage determined by the first paragraph of Article 3 of the MFRA (as well as a few provisions that are directly connected with this provision), and the amendment also indirectly interferes with the regulations in an undefined number of sectoral laws (allegedly around 70 laws), and thereby, inter alia, indirectly eliminates only the unconstitutionality that the Constitutional Court established by Decision No. U-I-425/06[17] and which refers to the regulation of inheritance by same-sex partners in the SSCPRA. Hence, such regulation does not entail the direct elimination of an already established unconstitutionality but concerns the regulation of something other than that which was imposed by the mentioned Decision of the Constitutional Court. Namely, the Constitutional Court has never established that the definition of marriage currently in force and the conditions for entering into marriage are unconstitutional (the first paragraph of Article 3 and Article 16 of the MFRA).
 
53. Hence, the MFRA-D, the subject of which is a new definition of marriage, is not a law that concerns the legal situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution. Therefore, the Constitutional Court abrogated the challenged Order of the National Assembly rejecting the scheduling of a referendum on the MFRA-D. The duty of the National Assembly to implement the two decisions of the Constitutional Court mentioned above will thereby not cease to exist.
 
 
C
 
54. The Constitutional Court adopted this Decision on the basis of the second paragraph of Section II of UZ90, 97, 99, the first paragraph of Article 21 of the RPIA, and the third indent of the second paragraph of Article 46 of the Rules of Procedure of the Constitutional Court (Official Gazette RS, Nos. 86/07, 54/10, and 56/11), composed of: Mag. Miroslav Mozetič, President, and Judges Dr Mitja Deisinger, Dr Dunja Jadek Pensa, Mag. Marta Klampfer, Dr Etelka Korpič – Horvat, Dr Ernest Petrič, Jasna Pogačar, Dr Jadranka Sovdat, and Jan Zobec. The Decision was adopted by five votes against four. Judges Jadek Pensa, Korpič – Horvat, Pogačar, and Sovdat voted against. Judges Klampfer, Mozetič, Petrič, and Zobec submitted concurring opinions. Judges Jadek Pensa, Korpič – Horvat, Pogačar, and Sovdat submitted dissenting opinions.
 
 
Mag. Miroslav Mozetič
President
 
 
[1] Taken from I. Kavčič in: I. Kaučič (Ed.), Zakonodajni referendum [Legislative Referendum], Inštitut za primerjalno pravo, GV Založba, Ljubljana 2010, p. 21.
[2] The fifth paragraph of Article 90 of the Constitution determines that referendums are regulated by a law passed in the National Assembly by a two-thirds majority vote of the deputies present.
[3] Prior to the amendment, the Constitution regulated the so-called subsequent legislative referendum approving an act, by which a draft act was confirmed in a referendum if a majority of those voting cast votes in favour of it.
[4] I. Kaučič, op. cit., p. 24.
[5] The legislative procedure in the broader sense also includes, in addition to the procedure for adopting a law in the National Assembly (the legislative procedure in the narrower sense), the legislative initiative (Article 88 of the Constitution), the suspensive veto of the National Council (the second paragraph of Article 91 of the Constitution), the legislative referendum (Article 90 of the Constitution), the promulgation of the law in question (the first paragraph of Article 91 and the second indent of the first paragraph of Article 107 of the Constitution), and the publication of the law in the Official Gazette of the Republic of Slovenia.
[6] Cf. Decision of the Constitutional Court No. U-I-266/95, dated 20 November 1995 (Official Gazette RS, No. 69/95, and OdlUS IV, 116).
[7] In the system of the separation of powers, the Constitutional Court is in fact an authority falling within the judicial branch of power (Decision No. U-I-163/99, dated 23 September 1999, Official Gazette RS, No. 80/99, and OdlUS VIII, 209); however, in comparison with other courts exercising the judicial function, it has special powers (Articles 160 and 161 of the Constitution). It is the authority of the state that assesses the constitutionality of the regulations of the legislative branch of power and the constitutionality and legality of the regulations of the executive branch of power. In accordance with the first paragraph of Article 1 of the CCA, the Constitutional Court is the highest body of the judicial power for the protection of constitutionality, legality, and human rights and fundamental freedoms.
[8] The last time the Constitutional Court upgraded its assessment criteria was in Decision No. U-II-1/12, U-II-2/12.
[9] See: Report of the Constitutional Commission of the National Assembly on the Preparation of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (EPA 620-VI), dated 29 March 2012 [sic; 2013 is the correct year].
[10] Cf. Decision of the Constitutional Court No. U-II-1/12, U-II-2/12.
[11] The first sentence of the second paragraph of Article 3 of the Constitution determines that in Slovenia power is vested in the people.
[12] I. Kaučič, F. Grad, Ustavna ureditev Slovenije [Constitutional Regulation of Slovenia], GV Založba, Ljubljana 2011, p. 224.
[13] See, e.g., Decisions of the Constitutional Court No. U-II-2/09 and No. U-II-1/10, dated 10 June 2010 (Official Gazette RS, No. 50/10, and OdlUS XIX, 11).
[14] See Order of the Constitutional Court No. U-II-3/03, dated 22 December 2003, OdlUS XII, 101.
[15] In the case at issue, it is evident from the file concerning the amendment of the Constitution that the constitution-framers did not follow the proposal of the expert group to retain in the text the term “established” unconstitutionality. No reason for or intention to omit the word “established” explicitly follows from the file.
[16] Therefore, it is possible to define something that never figured in the conscious mind of the authors of a text as the purpose of or rationale for the legal rule in question. An interpreter can understand the text better than its creators. This objective meaning of a normative text is therefore not always restricted to specific content, but includes the ever-present capacity to find answers to new legal needs and questions by producing new meanings; it cannot be envisioned as a unique mental process of [expressing] the will that created the normative text, but as the changing everlasting will carried by such normative text (G. Radbruch, Filozofija prava [The Philosophy of Law], GV Založba, Ljubljana 2007, pp. 146 and 147).
[17] With the MFRA-D, the legislature indirectly eliminated only the unconstitutionality that the Constitutional Court established by Decision No. U-I-425/06. Namely, the disputed equalisation does not even indirectly remedy the unconstitutionality that the Constitutional Court established by Decision No. U-I-212/10, as the second paragraph of Article 10 of the IA contains its own definition of common-law marriage.
 
 
U-II-1/15
19 October 2015
 
Dissenting Opinion of Judge Dr Dunja Jadek Pensa
 
                                                 I                                                                  
 
In this opinion I will focus on the main reason for the majority decision: the interpretation of the phrase “to eliminate an unconstitutionality” in the text of the fourth indent of the second paragraph of Article 90 of the Constitution. I opine that the adopted interpretation exceeds the literal interpretation of this constitutional provision and that there is no basis therefor in the intention of the norm. I understand that the purpose of the fourth indent of the second paragraph of Article 90 of the Constitution is to draw attention – on account of the previously created possibility of voters to decide in a referendum – inter alia, to the protection of the values incorporated in the constitutional provisions on human rights and fundamental freedoms, and thus constitutional democracy in relation to direct democracy.[1] [2] Such purpose does not substantiate the need to “tighten” the literal meaning of the phrase “to eliminate an unconstitutionality.” I would opine that the contrary is true. Therefore, I was unable to concur with the interpretation in accordance with which this phrase must be understood in a manner such that it is not admissible to call a referendum only with regard to laws eliminating an unconstitutionality that the Constitutional Court has already established by a decision or with regard to laws eliminating an unconstitutionality that has been established by the European Court of Human Rights (hereinafter referred to as the ECtHR, cf. paragraph 42 of the reasoning of the majority decision). It seems obvious to me that the adopted interpretation collides with the constitutional requirement that the state protect human rights and fundamental freedoms on its territory (Article 5 of the Constitution). It restricts this requirement. In doing so, as far as I understand, it devalues the essence of the recent constitutional changes. The adopted interpretation namely states that a subsequent legislative referendum is admissible even if the law at issue eliminates an unconstitutionality in the field of human rights and fundamental freedoms. This entails that the possible rejection of a law that eliminates an unconstitutionality in the field of human rights and fundamental freedoms is allowed, and thus that an unconstitutional situation would continue. Naturally, I concur with the majority that the adopted interpretation is in favorem of “the right to a referendum” (cf. Paragraph 49 of the reasoning of the majority decision); however, the result of the exercise of this right may lead to a situation that is constitutionally untenable. And preventing such a situation is the rationale for the recent constitutional amendment. It is unfortunate that in fact it was precisely the reference to the constitutionally determined power of the Constitutional Court to review the constitutionality of regulations (cf. Paragraph 42 of the reasoning of the majority decision) that denied the Constitutional Court the competence to answer the question of the constitutionality of the existing legal order in this delicate case from the viewpoint of constitutionally inadmissible discrimination on grounds of sexual orientation, which the Act Amending the Marriage and Family Relations Act (MFRA-D, EPA 257-VII) should eliminate. In contrast to the majority, I failed to find reasons of a formal nature that prevented a substantive review of the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the MFRA-D, dated 26 March 2015 (Official Gazette RS, No. 20/15).
 
 
II
 
1. The first paragraph of Article 90 of the Constitution previously in force allowed the possibility of a referendum on any issue that is the subject of regulation by law. Obviously, by such a definition the Constitution enabled open access to a referendum, and thereby a wide field of possibilities to exercise direct democracy. Confronting the dilemma of the relationship between the constitutional requirement to protect human rights (Article 5 of the Constitution) and the values incorporated in the catalogue of human rights and fundamental freedoms in the Constitution, on the one hand, and the possibility to decide in a referendum, on the other, was inevitable due to the evident collision of two constitutional values. As far as I understand it, the second paragraph of Article 90 of the Constitution resolves precisely this dilemma. Namely, the fourth paragraph (inter alia) of the second paragraph of Article 90 of the Constitution excludes the possibility of a subsequent rejective referendum regarding laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms. I can deduce two things by comparing the constitutional regulation of deciding in a referendum previously in force with the current regulation. First or all, that the rationale of the constitutional amendment was to limit the possibility to decide in a subsequent rejective referendum, inter alia, as regards content by which laws eliminate an unconstitutionality in the field of human rights that exists in the legal order. And second, that on the lawmaking level, the choice was made between two colliding values. The fact that a choice was made between two values colliding in the Constitution expresses that the protection of human rights and fundamental freedoms is the protected value, namely to the detriment of the possibility to decide in a referendum, otherwise, there would be no constitutional requirement that there shall not be the possibility to decide in a subsequent (rejective) referendum if the law eliminates an unconstitutionality in the field of human rights and fundamental freedoms. The Constitution thereby narrows the possibility to exercise direct democracy. Hence, following the entry into force of the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia,[3] this possibility is essentially different; the change is not in favorem of the possibility to decide in a subsequent (rejective) referendum, provided, of course, that the law in question regulates matters listed in the second paragraph of Article 90 of the Constitution.
 
2. In the case at hand, the Constitutional Court was faced for the first time with the question of decision-making on the admissibility of a referendum following the entry into force of UZ90, 97, 99. For the first time, the Constitutional Court was challenged with interpreting the new provisions of the Constitution that significantly modify the previous constitutional regulation of the possibility to decide in a subsequent rejective legislative referendum (cf. above); concretely, the interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution was at issue. Such entails that the content of the norm incorporated in the text of this constitutional provision had not yet been carved from the wording of the norm in the form of the reasons on which decisions of the Constitutional Court would be based. Hence, in the constitutional case law there had been no experience of interpreting gaps between the elements in the wording of this provision of the Constitution and their true (legal) meaning.
 
3. It appears to me that precisely due to this reason it was necessary that the Constitutional Court first pay attention to the wording of the fourth indent of the second paragraph of Article 90 of the Constitution as it is.[4] It is not the literal interpretation in its pure form that I have in mind, but the contextual understanding of the subject of interpretation.[5] [6] I find this analysis to be lacking in the majority Decision. Since it is always necessary to touch the surface in order to reach deeper, I opine that the majority Decision is deficient, and that the meaning of other applied interpretative approaches is devoid of the understanding offered by the basic and fundamental level of understanding of the wording that is the subject of interpretation. Why is that so?
 
4. The question raised at the beginning of Paragraph 42 of the majority Decision, i.e. “[...] which unconstitutionality the fourth indent of the second paragraph of Article 90 of the Constitution refers to and who is the one who has established the unconstitutionality the elimination of which is the subject of the law in question,” follows, as I understand it, from premises as if they are (were) given in advance and are naturally known to the interpreter. The question in the majority Decision namely presupposes: (1) that the entirety that is characterised by an unconstitutionality in the context of the norm that is interpreted falls to pieces, which are constitutionally significantly differentiated by another characteristic; (2) that within the context of the fourth indent of the second paragraph of Article 90 of the Constitution the differentia specifica is the subject who established that certain content in a law in force is contrary to the Constitution – hence it is unconstitutional; and (3) that merely this requires that the subject carrying out the interpretation perform, in order to learn the true content of the wording, a selection of the content from the entirety, content that is differentiated by another characteristic. Such an approach seemed disputable to me. Firstly because it does not question the usual meaning of the word unconstitutionality, the meaning that this word has within the context of the norm that is subject to interpretation, but secondly also because it does not question whether the given wording within the context of the fourth indent of the second paragraph of Article 90 of the Constitution even allows the interpreter to analyse the totality characterised by being unconstitutional in such a manner that the entity carrying out the interpretation is then even challenged to carry out the selection with respect to the additional characteristic that the entity itself defined. It is all the more disputable because in such a manner an added (additional) characteristic not included in the text has become crucially important to defining the framework of the content that in accordance with the Constitution excludes the possibility of decision-making in a subsequent rejective referendum. Thus, this concerns a question of a principled nature.
 
5. The (legal) meaning of the word unconstitutionality as defined in the Slovar slovenskega knjižnega jezika [Dictionary of Slovene Literary Language][7] does not address content that has the characteristic of unconstitutionality, i.e. that is contrary to the Constitution. Understandably. It suffices that the meaning of the word is explained therein. The Constitution, on the other hand, in view of the rationale of the amendment, deals precisely with content in the existing legal order in the field of human rights and fundamental freedoms characterised by an unconstitutionality that is the subject of regulation by the law eliminating this unconstitutionality. Why is that so? Because the Constitution requires that a law with such content shall not be the subject of decision-making in a subsequent rejective legislative referendum. Hence, the Constitution compromises by characterising the totality that is constitutionally important thereto merely with the word unconstitutionality, with regard to which – let me note again – the word unconstitutionality denotes that which has the characteristic of unconstitutionality. So, what should be the meaning of the succinct expression condensed in the prerequisite of the elimination of an unconstitutionality within the context of the fourth indent of the second paragraph of Article 90 of the Constitution and within the context of the Constitution as a whole?
 
6. Considering the fact that the characteristic of unconstitutionality in the text of the fourth indent of the second paragraph of Article 90 of the Constitution refers to one item, I believe that this concerns the totality of all content that is connected precisely by this unique characteristic, i.e. the characteristic of unconstitutionality. Therefore, I cannot find a reason in the text to not proceed from the open interpretation of the content denoted by this characteristic. Therefore, in my opinion, all content in the existing legal order characterised by an unconstitutionality (in the field of human rights and fundamental freedoms) and subject to regulation by a law is encompassed. Precisely because the Constitution compromised by defining only one single essential characteristic, a characteristic common to them all. Therefore, it seems to me that it needs to be taken into consideration that an unconstitutionality applies to both content that has been found unconstitutional by a decision of the Constitutional Court or by a judgment of the ECtHR, and content of the legal order that has not (yet) been subject to a substantive review by the Constitutional Court or the ECtHR but is inconsistent with the Constitution. The presumption of the conformity of legal acts of a lower rank (i.e. laws) with those of a higher rank (i.e. the Constitution) is only valid in an ideal world, but not in the real world. 
 
7. Therefore, I understood that the characteristic of unconstitutionality in the context of the fourth indent of the second paragraph of Article 90 of the Constitution applies (1) to instances in which an inconsistency in the legal order with the Constitution has already been established by a decision of the Constitutional Court (the first indent of the first paragraph of Article 160 of the Constitution) or by a judgment of the ECtHR, and (2) to instances where the two courts have not yet ruled on certain content of the existing legal order and the inconsistency of the legal order with the Constitution has been established by an entity that considers certain content unconstitutional. The second situation concerns a presumed unconstitutionality. The first situation concerns an authoritative position of the Constitutional Court or the ECtHR that (i) a certain concrete statutory regulation or (ii) the lack thereof (i.e. an unconstitutional legal gap) is inconsistent with the Constitution or the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – hereinafter referred to as the ECHR), which on the basis of the fifth paragraph of Article 15 of the Constitution is binding if [thereunder] the protection of human rights and fundamental freedoms is wider than that under the Constitution. Not everything that is unconstitutional in a legal order is found to be inconsistent with the Constitution in decisions or judgments of courts.
 
8. The wording of the Constitution (without taking into consideration the provision that is the subject of interpretation) does not restrict the meaning of the word unconstitutionality in the sense that it only means the first situation. It namely seems clear to me that the prohibition on inciting inequality and intolerance and the prohibition on inciting violence and war referred to in Article 63 of the Constitution extends to such expression, regardless whether the Constitutional Court has already established that a certain concrete expression is prohibited on the basis of Article 63 of the Constitution and is as such unconstitutional. The same applies to the unconstitutionality of the acts of political parties, which the Constitutional Court has the power to decide on, in accordance with the tenth indent of the first paragraph of Article 160 of the Constitution. It would be absurd to interpret the meaning of the word unconstitutionality in this provision of the Constitution as only covering the first situation. The power of the Constitutional Court to decide on the unconstitutionality of the acts and functioning of political parties is based on allegations that in a concrete case substantiate the unconstitutionality of an act or the functioning of political parties, and not on an already existing authoritative decision or judgment of a court. The word unconstitutionality is used as a part of the general and abstract norms – Article 63 and the tenth indent of the first paragraph of Article 160 of the Constitution – in the sense of an indeterminate legal term; this term has to be given meaning in each concrete case. Understandably, instances in which the legal term unconstitutionality has already been concretised by a decision or a judgment of a court are not excluded in practice. It is in the nature of constitutional decision-making that decisions contain judgments declaring that concrete content is inconsistent with the Constitution, whereas it is in the nature of the abstract and general norms of the Constitution that the term unconstitutionality is used therein in a manner such that it applies to an indeterminate number of analogous situations.
 
9. The legislature, stemming from the realisation that there exist difficulties when answering the questions that arise again an again in real-life situations, purposefully uses indeterminate legal terms, with the awareness that their meaning is not precisely defined, while concurrently counting on the fact that the addressees will understand its intention and therefore will interpret the words and norms with a feeling for actualising this intention. Like a painter, the legislature only has to outline the basic lines, in accordance with its work.[8] This is a characteristic of the legislature, which is inherent in the choices it makes on an abstract and general level and which precisely for this reason presupposes [that there is] a process of further normative concretisation, i.e. bringing the abstract state of the facts closer to the concrete state of the facts, which in turn will enable, for instance, the application of an abstract constitutional prohibition in a concrete case. This requirement stems from the general nature of abstract norms and indeterminate legal terms used therein, with regard to which the method of further normative concretisation is not disputable in legal theory and is established in the case law of the Constitutional Court. All of this is a principle that I believe is widely accepted in law. Precisely for this reason it should have been taken into account in the interpretation of the Constitution, concretely when seeking an answer to the question of what the totality of what is unconstitutional encompasses within the context of the fourth indent of the second paragraph of Article 90 of the Constitution. Was it? I think not.
 
10. Establishing by an authoritative decision of the Constitutional Court or a judgment of the ECtHR that there is an inconsistency between the legal order and the Constitution presupposes a concretisation of this inconsistency. Therefore, as I understand it, the requirement stated in the majority position of the prior concretisation in a decision of the Constitutional Court or in a judgment of the ECtHR of content that is inconsistent with the Constitution eo ipso reduces the content encompassed in the meaning of the word unconstitutionality within the context of the fourth indent of the second paragraph of Article 90 of the Constitution to content that is already concretely determined. This requirement merges the general and abstract act (i.e. the Constitution) with an individual act (i.e. a decision of the Constitutional Court, a judgment of the ECtHR) and thus neglects the quality division of legal rules, the general nature of abstract norms, the meaning of the indeterminate legal terms that figure therein, and the generally accepted principles of further (i.e. not yet carried out) normative concretisation stemming therefrom. For such reason, I cannot rid myself of the impression that the principal majority position exceeds the literal meaning of the fourth indent of the second paragraph of Article 90 of the Constitution. It exceeds the meaning because it adds to the given text a presumption that changes the literal meaning of what is written.
 
11. Exceeding the literal meaning could perhaps be substantiated by the intention to modify the regulation in the Constitution of the possibility to decide in a subsequent rejective referendum. However, I failed to find any such reasons in the majority decision, as I understand it. Striving for the clarity of the definitions of abstractly prescribed prerequisites that in the new regulation determine the relationship between the possibility to decide in a subsequent rejective referendum and the protection of human rights and fundamental freedoms was probably not in itself the ratio legis for amending the Constitution. Hence, striving for the clarity of the definition of one of the prerequisites contained in the fourth indent of the second paragraph of Article 90 of the Constitution is in my opinion not an argument that substantiates the need to further itemise the totality of content that in accordance with the Constitution is characterised by an unconstitutionality. I am not attempting to answer the question of how one should consider the meaning of the historical interpretation in its narrower meaning (i.e. genetic interpretation) in the process of seeking an answer to the question of the true meaning of the wording of the Constitution. However, I cannot concur with the majority assessment that the intention of the constitution-framers lacks clear support in the constitutional file. In my opinion, it has such support. Furthermore, this file – as I understand it – even expressly excludes the possible understanding that, following the amendment, a subsequent rejective referendum is only prohibited in instances concerning a law eliminating an unconstitutionality by the implementation of a decision of the Constitutional Court or a judgment of the ECtHR. From the reasoning of the Draft Constitutional Act Amending Articles 90, 97, and 99of the Constitution, concretely from the reasoning of the fourth indent of the second paragraph of Article 90 of the Constitution: “[...] Decision-making in a referendum can be limited if such is necessary in order to protect another constitutional value regarding which there already exists a violation that has to be eliminated by the new statutory regulation, as well as if the statutory regulation in force is unconstitutional, and the adopted law eliminates such unconstitutionality in a constitutionally consistent manner. Such reason for the inadmissibility of calling a referendum would in particular apply in the event individual provisions of the law were unconstitutional, which would be established by the Constitutional Court [...].[9] 
 
12. If I may itemise (and simplify) the supporting position, the Constitutional Court decided (by a majority) to deny decision-making in the dispute on the prohibition of a referendum as to the unconstitutionality of the situation in the existing legal order because, in accordance with the Constitution, the Constitutional Court and the ECtHR are the only two authorities competent to make (an authoritative) decision thereon, and, if I may also add the time dimension, because they have not yet ruled thereon. Allow me to point out here that in the first phase of the procedure, UZ90, 97, 99 entrusted decision-making regarding the admissibility of a referendum in accordance with the second paragraph of Article 90 of the Constitution to the National Assembly, and left decision-making in a dispute between the proposer of the referendum and the National Assembly,[10] i.e. in the event the National Assembly rejects the calling of a referendum, to the Constitutional Court. As I understand it, in such a regulation of the procedure, the position of the Constitutional Court as determined in the Constitution is fully observed. The Constitutional Court is namely entrusted – in fact only within the framework of the assessment of the prerequisite of the elimination of unconstitutionalities in the field of human rights and fundamental freedoms – to decide on the existence of unconstitutional content in the existing legal order. From the viewpoint of the regulation of the powers of the Constitutional Court referred to in Article 160 of the Constitution, it seems that such power should not be disputable. Furthermore, this is not the only instance in which the Constitutional Court is authorised to decide on the constitutionality of acts prior to their entry into force.[11] In the context of the fourth indent of the second paragraph of Article 90 of the Constitution, which provides the substantive framework of constitutional and direct democracy, and thus, inevitably, also the limitation of the possibility to decide in a subsequent rejective referendum, the argument of the separation of powers thus remains completely alien to me. Unfortunately, I am unable to find reasons substantiating the connection between the field of the separation of powers and the provision of the second paragraph of Article 90 of the Constitution, and thus the departure from the field of the constitutional prohibition of decision-making in a subsequent legislative referendum to the field of the separation of powers. Non sequitur.
 
13. In short. I cannot rid myself of the impression that the supporting position of the majority decision exceeds the literal meaning of the disputed provision of the Constitution by adding a (positive) presumption to the text of the Constitution. This exceeding that I refer to is not without a principled problem. The exceeding of the meaning of words that on an abstract level define content that in accordance with the Constitution are not suitable [for a decision thereon] in a referendum namely inevitably codetermines the constitutionally admissible framework of the possibility to decide in a referendum. Namely, in such a manner so as to widen the meaning precisely to the degree to which the meaning of the term unconstitutionality is “narrowed” in the context of the fourth indent of the second paragraph of Article 90 of the Constitution. This exceeding of the literal meaning of the disputed constitutional provision could perhaps be substantiated by an argument as to the intention of the amendment of the Constitution. However, unfortunately, I failed to find convincing reasons therefor in the majority decision. I would opine that the contrary is true. Therefore, I doubt that the adopted interpretation of the Constitution falls within the latitude of assessment given by the Constitution to the interpreter of the norm – i.e. the Constitutional Court. I was unable to concur with such interpretation, regarding which I have doubts due to this principled reason.
 
 
III
 
14. I advocated the idea that the Constitutional Court should substantively assess the challenged order of the National Assembly on the rejection of the calling of the legislative referendum. I opined that the allegation of the National Assembly that the definition of marriage in the provisions of the Marriage and Family Relations Act (Official Gazette RS, No. 69/04 – official consolidated text – hereinafter referred to as the MFRA) in force is not inconsistent with the Constitution, although this is precisely what the law that is the subject of decision-making in the subsequent legislative referendum changed (as well as the definition of a common-law marriage), should not be decisive. There are several reasons due to which I was unable to focus my decision merely on reproaching the National Assembly for eliminating an unconstitutionality that it essentially denied. Allow me to only state at this point that the National Assembly warned of the general prohibition of discrimination based on personal circumstances in accordance with Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms,[12] Article 53 of the Constitution; the fact that this provision does not mention heterosexuality among the requirements that in the Constitution define marriage; that the current statutory regulation is inconsistent with the requirements of the right determined by Article 14 of the Constitution; and that it stressed that it eliminated the inadmissible systemic discrimination of homosexual couples based on their sexual orientation. In light of such allegations, I had doubts as to the correctness of the word-for-word understanding of its allegation that the existing definition of marriage is not contrary to the Constitution. When there is a gap between protected constitutional values and the valid (statutory) legal structure, the existing statutory regulation is contrary to the Constitution not because of the content of the law but because of the missing content. In other words, the allegation that the legal order is inconsistent with the Constitution is based on the fact that the legal order is missing certain content; for this reason alone, the regulated content is not in and of itself inconsistent with the Constitution. And as I understand it, the National Assembly drew attention to the existing unconstitutional situation in the legal order precisely due to the alleged unconstitutional legal gap and its duty to eliminate it. It seems self-evident to me that the National Assembly cannot “safeguard” human rights and fundamental freedoms that are not (yet) included in the structure of the statutory legal order in any other way than by adopting a law that regulates these rights on an abstract level. Article 5 of the Constitution already binds it to do so.
 
 
IV
 
15. Within the framework of the substantive review regarding the challenged order, a question would then arise in light of the fourth indent of the second paragraph of Article 90 of the Constitution, namely the question of (1) when a law eliminates an unconstitutionality in the field of human rights and fundamental freedoms, and the connected (2) further question as to the conception of the alleged systemic discrimination in the field of human rights and fundamental freedoms in the existing legal order of the state and the reasons therefor.
 
16. The search for an answer to the first question entails searching for the external borders of the substantive framework of the field of human rights and fundamental freedoms. This might be a difficult and complex process. However, I opine that in the case at issue this is not so.
 
17. In the chapter on human rights and fundamental freedoms, the Constitution obliges the legislature to regulate two partnerships, namely marriage and common-law marriage (Article 53 of the Constitution). The rationale of this constitutional requirement (i.e. the positive obligation, which only the positive legislature can realise) is to allow individuals to live in these two types of partnerships. As far as I understand it, the Constitution thereby clearly expresses the constitutional meaning thereof in the state. Merely by regulating them, the state at the same time differentiates them from all other forms of partnerships that it does not regulate. The formation and existence of these legal partnerships in the life of adults can, in accordance with the Constitution, only be enabled by a law that has entered into force in the legal order. In real life, only such a law enables adults to “choose” life in a legally regulated partnership called marriage or common-law marriage. Understandably, by prescribing the conditions for the formation of the constitutionally envisaged partnerships of adults, the law concurrently essentially defines them. In such a manner, the law can “allow” certain persons to enter into marriage (or the creation of a common-law marriage) and does not allow others to do the same. In my opinion, ensuring the possibility to live in a constitutionally envisaged partnership is thus a question par excellence in the field of human rights and fundamental freedoms.[13] The same holds true as regard questions connected with (1) the constitutional prohibition of discrimination based on a personal circumstance when the exercise of human rights and fundamental freedoms is at issue, (2) the general prohibition of discrimination when statutory rights stemming from Protocol No. 12 to the ECtHR are at issue, or (3) the constitutional requirement of equal treatment under the law (the second paragraph of Article 14 of the Constitution).
 
18. Considering my starting points and understanding of the form of discrimination in the existing legal structure that is discussed here, it seemed even obvious to me that the MFRA-D is a law in the field of human rights and fundamental freedoms. Therefore, I opined that in the case at issue the Constitutional Court should have answered the question of whether the existing regulation is in conformity with the Constitution, namely from the viewpoint of Articles 53 and 14 of the Constitution and Protocol No. 12 to the ECHR.
 
19. Already in my separate opinion to Decision of the Constitutional Court No. U-I-212/10, dated 14 March 2013 (Official Gazette RS, No. 31/13), I drew attention to the inadmissible unequal treatment in the field of the regulation of the legal consequences of the long-lasting partnerships of persons of the same sex for the period they live together. I opined that the Constitutional Court should therefore proceed from the already established position that it is characteristic of partnerships of same-sex couples, the same as for partnerships of opposite-sex couples, that they are loving and lasting, and [thus it should] assess the consequences thereof already during the lifetime of the partners. Persons of the same sex who live in a long-term partnership that is founded on mutual emotional attachment, mutual respect, understanding, trust, and mutual assistance are in an essentially similar position as a man and a woman who live in a relationship as defined by Article 12 of the MFRA, as their relationship is founded on essentially similar interpersonal values as a relationship of persons of different sexes. Different treatment of something that is essentially equal must always be justified. This is the essence of the constitutional right to equal treatment. Inadmissible discrimination in the field of inheritance was in my opinion rooted in inadmissible discrimination during the lifetime of partners in same-sex partnerships. My position as to the occurrence of indirect discrimination was not convincing. Decision of the Constitutional Court No. U-I-212/10 focuses on unconstitutional consequences only in the field of inheritance law. Taking into account the manner of execution determined by Point 3 of the operative provisions of this Decision, the meaning of a same-sex partnership in the Slovene legal order is thus only recognised after the death of one partner.
 
20. As I understand, it is actually the family meaning of the partnership that is thereby recognised[14] (with regard to which, the recognition of this meaning is reserved only in the event of death). In the field of inheritance law, the legislature (or the Constitutional Court in its place) protects the traditional core of the institute of inheritance, which is characterised by the principles of inheritance, among which also falls, in addition to the freedom of testation, the principle of inheritance within the family.[15] And in Decision of the Constitutional Court No. U-I-212/10 the question at issue concerned legal inheritance. I am convinced that it would not be possible to recognise a partner in a same-sex partnership the legal right of inheritance if the relationship was not at the same time defined as a family relationship during the time the partners live together. It is namely necessary to take into consideration that, in conformity with the principle of inheritance within the family, legal inheritance does not give persons who were not connected with the decedent as a family the right of inheritance. The surviving partner is entitled to the right of inheritance exclusively because the legal order recognises the family meaning of such partnership during the time of its existence. The current situation in the legal order in the state is such that, except for the manner of execution of the cited constitutional provision, the family meaning of partnerships of same-sex couples who have not registered their partnerships does not exist; even if the legal meaning of a certain type of partnership that defines the position of an adult in primary, family, relations has already been recognised. Such entails that a same-sex couple who lives in such a partnership neither benefits from the privileges nor are the family obligations imposed upon it that the legal order in general associates with this type of partnership when an opposite-sex couple is concerned. I sense both the basis of the fundamental order that has changed in law with the instalment of this type of partnership in this order and, at the same time, a gap in the legal order and consequently in the remaining structure of legal norms. Let me stress that the integration of individuals in society is characterised, from their perspective, by the possibility to access different categories of rights necessary for the development of one’s personality in private and social spheres; the overcoming of the argument of heterosexuality as a characteristic that is a precondition for institutes that regulate relations between adults thus widens the social integration of the minority.[16] If I consider the situation from this point of view, I can understand the endeavour to ensure the equal treatment of persons characterised by a homosexual orientation even at the expense of the freedom to choose the type of partnership.[17]
 
21. It seems obvious to me that an individual’s inclusion in society is characterised by the possibility to access different categories of rights necessary for the development of one’s personality in private and social spheres. The legal possibility to live in one of the constitutionally defined partnerships is (merely) one possibility. But it is crucial, as it entails the basis of the primary social order. This is precisely the reason why the existence of these partnerships permeates the legal order. They form the focal point, because they express and support that quality of interpersonal relations that is accepted and thus respected, also within the structure of the legal order. I understand that only a concluded marriage and the statutorily determined legal consequences of a common-law marriage in the family field [of law] substantiate the special legal position of partners in numerous other legal fields because the legal order respects and supports the content of interpersonal relations in primary relationships. These rights do not belong to the spouses or partners in a common-law marriage merely because they refer to the two mentioned institutes, although if they do not refer thereto they do not obtain these rights. These rights belong to them because the mentioned partnerships justify them in the first place; while respect for and consideration of the interpersonal relations characteristic thereof demand the realisation of humaneness in the law, the maintenance of the level of rights to social security and health care, the [appropriate] attitude of the state with respect to repression when sensitive relations between them are at issue, and the formation of numerous and very diverse situations that are important for civil law. Therefore, in the MFRA-D I do not see merely a simplification of the elimination of the alleged systemic discrimination, which understandably it would be possible to eliminate with corrections of individual laws. It does not merely concern striving for the reflexive effect of legal definitions or a drafting solution because, as I understand it, it is not only one legal definition that is concerned among many others which merely make legal expression in laws easier. It is two legal partnerships that have a special position in the Constitution that are concerned, and also the privileges or obligations that are justified, or obligations imposed due to the recognition of the special position of these two partnerships for the life of individuals in a family, and their relation to the state when relations connected with primary, family, relations, and society at large are at issue.
 
22. Sex is, of course, an objective circumstance. However, in the MFRA the difference between the sexes is a condition for the possibility to conclude a marriage (or for a common-law marriage to come into existence). The choice carried out by the legislature presupposes that the value of heterosexuality is legally determined. Therefore, this characteristic is not value-neutral. Care for the constitutionally protected situations of children must lead to extreme and incessant vigilance, which should enable the sensitive perception of numerous deprivations of children, even in forms thus far unknown, which can occur as a result of the actions of adults. However, as I understand it, the MFRA-D does not regulate the position of children, and the adoption of children is not a right in the Slovene legal order. Such entails that an individual, or two individuals, provided that they are spouses, do not have available a claim by which they could enforce the adoption of a child. In an adoption procedure it is exclusively the interest of the child that is at the forefront, and not the interest of the possible future adoptive parents. It does not seem to me that the regulation in the MFRA-D interferes with this fundamental principle of adoption.[18] The legally regulated life of a couple supports and protects the family and the life therein. This is the rationale of the legal regulation in the field of family [law] and in numerous other fields that support such partnerships.
 
Conclusion. The Constitutional Court has already stressed that in today’s society there is no longer a division of opinions as to the fact that same-sex couples create loving and lasting partnerships in the same way heterosexual couples do.[19] Furthermore, it has adopted the position that the situations of the compared two groups of couples (same-sex and opposite-sex) are essentially similar, as they are characterised by a stable relationship of two persons who are close and who assist, respect, support, and trust each other similarly as a woman and a man in a partnership.[20] The two positions of the Constitutional Court concerning the similarity of the compared positions are based – as I understand it – on the characteristics of interpersonal relations that develop in primary, family, relations. Unfortunately, the majority decision lacks an answer to the question of whether there perhaps exist reasons in favour of a different position as to the similarity of the compared situations.[21] The same holds true regarding the reasons that perhaps could substantiate the constitutional admissibility of the different treatment of the compared groups on the basis of sexual orientation, in particular when the legal framework of primary, family, relations is concerned. It seems clear to me that only a concurring answer by the Constitutional Court to these fundamental constitutional questions, which on the basis of the Constitution and due to constitutional democracy make the possibility to decide in a referendum ever more distant, would eliminate doubt as to the existence of the alleged unconstitutionality of the existing legal order in the state in this field and thus concurrently (in the event the MFRA-D is rejected in a referendum) as to the continuation of the constitutionally inadmissible different treatment of people on grounds of sexual orientation. The abrogation of the challenged Order without substantive answers to the questions raised herein cannot eliminate doubt as to either the possibility of the continuation of the violation of the constitutional prohibition of discrimination on grounds of personal circumstances or receding from the ideal of justice, which gives sense to this constitutional prohibition. Therefore, I was unable to vote in favour of the abrogation of the challenged Order.
 
 
Dr Dunja Jadek Pensa
Judge
 

[1] “The proposed grounds for excluding a referendum would enable restricting decision-making in referendums in cases where the possible rejection of the entry into force would prevent the elimination of an unconstitutional situation, which also includes the elimination of a violation of human rights and fundamental freedoms. Decision-making in a referendum can be limited if such is necessary in order to protect another constitutional value regarding which there already exists a violation that has to be eliminated by the new statutory regulation, as well as if the statutory regulation in force is unconstitutional, and the adopted law eliminates such unconstitutionality in a constitutionally consistent manner.” From the reasoning of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution, concretely from the reasoning of the fourth indent of the second paragraph of Article 90 of the Constitution, p. 15, EPA 620-VI.
[2] “[…] the fourth group of laws is excluded from decision-making in a referendum due to the prevention of the rejection of a law that is in conformity with the Constitution. The intention is to prevent voters from adopting a decision in a referendum that would render impossible the elimination of an unconstitutional statutory regulation. […] The rejection in a referendum of a law eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality would entail the continuation of the unconstitutional situation and would be constitutionally untenable.” Taken from I. Kaučič, Ustavne omejitve in prepovedi zakonodajnega referenduma [Constitutional Limitations and Prohibitions of a Legislative Referendum], Zbornik znanstvenih razprav, LXXIV, 2014, p. 77.
[3] Official Gazette RS, No. 47/13, hereinafter referred to as UZ90, 97, 99. Date of promulgation: 31 May 2013.
[4] If the Supreme Court of the United States of America encounters a new field, it almost inevitably commences with the text. Taken from M. Tushnet, The United States: Eclecticism in Service of Pragmatism, in: J. Goldsworthy (Ed.), Interpreting Constitutions: A Comparative Study, Oxford University Press, Oxford 2006, p. 48.
[5] For more on this subject, see M. Pavčnik, Teorija prava [The Theory of Law], GV Založba, Ljubljana 2007, p. 486 et seq.
[6] The first rule in Germany as to the literal interpretation of the Constitution is that words mean what they express. Sometimes, words and phrases have a narrow legal meaning, one that corresponds to the technical requirements of law (for instance, criminal law). In other instances, the usual meaning is relevant, which must be distinguished from the word-for-word meaning. The meaning of words is determined according to the context, both textual and social. Words and phrases are usually interpreted in light of the presumed intention. Taken from D. P. Kommers, Germany: Balancing Rights and Duties, in: J. Goldsworthy (Ed.), op. cit, p. 197.
[7] Slovenian Academy of Sciences and Arts, Slovar slovenskega knjižnega jezika [Dictionary of Slovene Literary Language], DZS, Ljubljana, 1994, p. 1089.
[8] Platon, Zakoni [Laws], Beogradski izdavačko-grafički zavod, Beograd 1990, p. 380.
[9] Emphasis by DJP.
[10] The second paragraph of Point II. UZ90, 97, 99.
[11] At this point, I draw attention to Article 70 of the Constitutional Court Act (Official Gazette RS, Nos. 64/07 – official consolidated text and 109/12), which reads as follows: “In the process of ratifying a treaty, the Constitutional Court, on the proposal of the President of the Republic, the Government, or a third of the deputies of the National Assembly, issues an opinion on the conformity of such treaty with the Constitution. The Constitutional Court adopts such opinion at a closed session.”
[12] The Act Ratifying Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Official Gazette RS, No. 46/10, MP, No. 8/10 – hereinafter referred to as Protocol No. 12 to the ECHR.
[13] In Judgment Obergefell et al. v. Hodges, Director, Ohio Department of Health, et al., dated 26 June 2015, the Supreme Court of the USA recognised, in the 14th  Amendment, concretely in the constitutional requirement to respect an individual’s freedom, the constitutionally protected right to marry and the unconstitutionality in the legal order because this right is not granted to same-sex couples as well.
            The Court of Appeal for Ontario decided that the traditional definition of marriage unconstitutionally violates the right to equality determined by the Canadian Charter of Rights and Freedoms, that the prohibition of homosexual couples marrying is based on the conception that homosexual couples are not capable of creating loving and lasting relationships, and that they are not worthy of equal respect and recognition as heterosexual couples, as well as that the dignity of persons in homosexual relations is thus affected. From Halpem v. Canada [2003], O. J. 2268, dated 10 June 2003.
When answering the question of whether the inclusion of homosexual couples in the new definition of marriage is in conformity with the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada adopted the position that the intention of this legislation not only does not violate the Charter, but that it follows therefrom that the legalisation of [homosexual couples] marrying does not violate in any manner any of the constitutional rights included in the Charter. Reference re Same-Sex Marriage [2004] 3 S. C. R. 698, 2004 SCC 79, dated 9 December 2004.
[14] The ECtHR includes the cohabitation of homosexual couples within the meaning of family life determined by Article 8 of the ECHR; cf. the ECtHR judgment in Schalk and Kopf v. Austria, dated 24 June 2010.
[15] Cf. Para. 14 of the reasoning of Decision of the Constitutional Court No. U-I-212/10.
[16] Cf. in this respect A. J. Moreira, We Are Family! Legal Recognition of Same-Sex Unions in Brazil, American Journal of Comparative Law, Vol. 60, No. 4 (2012), pp. 1003–1042.
[17] From my separate opinion to Decision of the Constitutional Court No. U-I-212/10.
[18] When the Constitutional Council of France assessed the constitutionality of the law that enabled same-sex partners to marry, it held that the challenged law cannot be interpreted in a manner that does not specifically verify whether adoption is in the interest of the child when the adoptive parents are a same-sex couple (Decision No. 2013-669 DC, dated 17 May 2013).
In the judgment in the cases 1 BvL1/11, 1 BvR 3247/09, dated 19 February 2013, the German Federal Constitutional Court adopted the position that the prohibition of a registered partner adopting the children adopted by his or her partner cannot be justified with the argument that growing up in a same-sex partnership would harm children, as this had not been proven. Furthermore, the challenged measure could not even prevent the possible harmful effects, as the prohibition on adopting a child does not prevent a child from living in such a community. The adoption would in fact entail a benefit for the child, as his or her position would thus improve. Furthermore, one should not expect that the adoption would harm the child, as special verification is carried out prior to each adoption that includes an assessment of possible negative consequences.
[19] From Decision of the Constitutional Court No. U-I-212/10.
[20] Cf. Decision of the Constitutional Court No. U-I-425/06, dated 2 July 2009 (Official Gazette RS, No. 55/09, and OdlUS XVIII, 29), and Decision No. U-I-212/10.
[21] In Judgment No. 159/2004, dated 20 October 2004, the Constitutional Court of Belgium adopted the position that the determination of procreation as the purpose of marriage has been overcome in today’s society and that, today, marriage is considered to be the ideal basis for a lasting partnership of two persons. In Decision No. 121/2010, dated 8 April 2010, the Constitutional Court of Portugal adopted the same position regarding procreation as the purpose of marriage.
 
 
U-II-1/15
19 October 2015
 
Concurring Opinion of Judge Mag. Marta Klampfer
 
1. I voted in favour of the Decision of the Constitutional Court because I concur with the reasons substantiating the assessment of the Constitutional Court in the present case. The Constitutional Court abrogated the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations (EPA 257-VII, hereinafter referred to as the MFRA-D), dated 26 March 2015 (Official Gazette RS, No. 20/15), because, contrary to the National Assembly, it interpreted the fourth indent of the second paragraph of Article 90 of the Constitution narrowly and adopted a position in accordance with which this indent only refers to laws eliminating unconstitutionalities that have already been established by the Constitutional Court or the European Court of Human Rights (hereinafter referred to as the ECtHR).
 
2. In the case at issue, the Constitutional Court first had to assess whether the MFRA‑D is a law by which the legislature eliminated an unconstitutionality in the field of human rights and fundamental freedoms, i.e. whether it entails a legal situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution, with regard to which a referendum is inadmissible. In its assessment, the Constitutional Court did not substantively address the elimination of systemic discrimination against same-sex couples.
 
3. The principal message of the Decision is that a referendum may not be called only with regard to laws eliminating an unconstitutionality that the Constitutional Court has already established beforehand by its decisions and with regard to laws eliminating a violation of a human right that has been established by a judgment of the ECtHR. I concur with the mentioned decision, as it eliminates the possibility of different interpretations regarding the somewhat unclear or porous provision of the fourth indent of the second paragraph of Article 90 of the Constitution. Furthermore, an extensive interpretation of this provision would completely nullify the right to a referendum, which in the Slovene Constitution and constitutional case law is defined as a human right. In practice, this would mean that referendums would no longer exist.
 
4. I concur with such position in particular in order for a clear message to be conveyed already at the beginning of [the application of] the new regulation of referendums, so that there will not be any such dilemmas as the Constitutional Court was faced with in the past. Below, I would like to touch upon some of the dilemmas I have encountered during my term of office (eight referendum petitions, this one is the ninth, but the first following the adoption of the new constitutional regulation) with regard to virtually every instance of decision-making as to whether to allow a referendum. These are also the reasons why I voted for a clear determination of when the Constitutional Court will allow a referendum in conformity with the fourth indent of the second paragraph of Article 90 of the Constitution. I am positive that there will be no more dilemmas such as those the Constitutional Court encountered in the past when interpreting Article 21 of the Referendum and Popular Initiative Act (Official Gazette RS, No. 26/07 – official consolidated text – hereinafter referred to as the RPIA).
 
5. The RPIA (Official Gazette RS, No. 15/94), which was adopted in 1994, expressly determined when a legislative referendum may not be called. Article 10 thereof determined three groups of laws regarding which it was not admissible to call a legislative referendum. Such referendum was not admissible as regards laws adopted in an expedited procedure, when such was required due to the extraordinary needs of the state, reasons concerning the defence of the state, or natural disasters (the first indent of Article 10 of the RPIA); laws on which the implementation of the adopted budget of the state directly depended (the second indent of Article 10 of the RPIA); and laws that were adopted in order to implement ratified treaties (the third indent of Article 10 of the RPIA). Furthermore, the first paragraph of Article 16 of that Act determined that the Constitutional Court had the power to assess, at the request of the National Assembly, whether the content of the request to call a referendum was inconsistent with the Constitution. By Decision No. U-I-47/94, dated 19 January 1995 (Official Gazette RS, No. 13/95, and OdlUS IV, 4), the Constitutional Court abrogated that Article and established the unconstitutionality of Article 15 of the RPIA because it did not ensure appropriate judicial protection against a decision of the National Assembly to not call a referendum. In the reasoning, the Constitutional Court stated: “Since Article 90 entails the constitutional implementation of the constitutional right to direct decision-making by citizens determined by Article 44 of the Constitution, and also because the right of 40,000 voters to request the holding of a referendum included therein can be deemed to be a ‘human right’, which is subject to the legal regime determined by Article 15 of the Constitution, the provisions of the second and third paragraphs of Article 15 of the Constitution also apply to the possible statutory interferences with the provisions thereof (insofar as they relate to this constitutional right).” On such basis, it decided that the statutory exclusion of certain legislative referendums is a measure that is not necessary. Namely, the same objective can be achieved by applying a measure entailing a milder interference with the constitutional right referred to in Articles 44 and 90 of the Constitution, namely by applying the mechanism envisaged in Article 16 of the RPIA. The Constitutional Court considered that a milder measure could be that in every concrete case the Constitutional Court would assess “whether really, due to the postponement of the entry into force of that law or it not entering into force as a result of the referendum, such important constitutional rights would be affected that, because of it – after balancing the affected constitutional values – it would be admissible to interfere with the constitutional right to referendum decision-making.” Hence, the Constitutional Court decided that the right to referendum decision-making – i.e. the right to vote in a referendum required by the entitled proposers referred to in the second paragraph of Article 90 of the Constitution – is a human right, which the Constitutional Court has taken into account in its numerous subsequent decisions.[1]
 
6. As a result of Decision of the Constitutional Court No. U-l-47/94, the RPIA (Official Gazette RS, No. 139/06) was amended, and in Article 21 conferred on the Constitutional Court the power to decide whether the postponement of the entry into force of a law or the rejection thereof would cause unconstitutional consequences. In numerous cases, during the assessment on the basis of the power granted by Article 21 of the RPIA, the Constitutional Court addressed the issue of the constitutional admissibility of legislative referendums. The judges expressed the position that the Constitutional Court’s decision-making based on Article 21 of the RPIA entails a constitutionally questionable interference with the legislative procedure, which could be disputable from the viewpoint of the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution).[2] In fact, such regulation did not determine instances in which referendums would be inadmissible, but nevertheless allowed very different interpretations. Even if the conditions determined by the second paragraph of Article 90 of the Constitution were fulfilled, on the basis of the first paragraph of Article 21 of the RPIA, a referendum was not carried out if the Constitutional Court established that due to the suspension of the entry into force of the law or due to its rejection in a referendum unconstitutional consequences would have arisen. On the basis of this provision, which entails a limitation of people’s democracy by constitutional democracy, the Constitutional Court assessed, at the request of the National Assembly, whether unconstitutional consequences could arise as a result of the postponement of the entry into force of a law or its rejection in a referendum that would justify a limitation of the constitutional right to referendum decision-making. Hence, the RPIA allowed the Constitutional Court to assess the possibility of any unconstitutionality arising, even such that the Constitutional Court had not yet established beforehand, thus allowing it to balance the right to a referendum and the weight of the possible unconstitutional consequences of a referendum. By Decision No. U-II-2/09, dated 9 November 2009 (Official Gazette RS, No. 91/09, and OdlUS XVIII, 50), the Constitutional Court interpreted the wording of the first paragraph of Article 21 of the RPIA in such a manner that embedded therein is the balancing between the right to a referendum, which is protected as a human right, and the constitutional values that reflect the purpose of the statutory provision at issue.[3] In the constitutional case law, the most problematic issue was the legal standard of “unconstitutional consequences”. Also when deciding on a referendum as regards the Family Code (Decision No. U-II-3/11), the Constitutional Court adopted a position as regards the term ‘unconstitutional consequences’. In that decision, it expressly stated that unconstitutional consequences are an indefinite legal term that the Constitutional Court gives substance to by positions adopted in proceedings for assessing the constitutional admissibility of the legislative referendum. In his concurring opinion to Decision U-II-1/11, Constitutional Court Judge Jan Zobec drew attention to the normative concretisation of the legal standard “unconstitutional consequences”, which in his opinion is of “key importance for the orientation of work, considering, researching, and, finally, assessing whether to grant the request of the National Assembly to ‘prohibit’ the referendum or not.” This becomes a problem especially when the possibility that unconstitutional consequences would arise is not so obvious. In his opinion, in such cases in particular, the openly defined standard of “unconstitutional consequences” must be interpreted narrowly – in favour of the constitutional value of referendums. The substantive openness of this term enables such, while a constitutionally consistent, teleological, and systematic interpretation even require such.[4] Although the interpretation of the term ‘unconstitutional consequences’ and the criteria for the assessment thereof is still being developed, the Constitutional Court has already formulated certain assessment criteria in this respect. The criteria established thus far in the interpretation of the term ‘unconstitutional consequences’ are notably evident from Decisions No. U-II-2/09, No. U-II-1/10, and No. U-II-1/11. Acting on the basis of the first paragraph of Article 21 of the RPIA, the Constitutional Court adopted the position that “it cannot address the assessment of the constitutionality of the entirety of the established statutory regulation in force” precisely in the Decision regarding the referendum on the Family Code. Therefore, in a request for the Constitutional Court to assess the admissibility of a referendum, the National Assembly must clearly and precisely state which provisions of the law in force are [allegedly] unconstitutional and on what constitutional grounds. The National Assembly has the same duty to substantiate its request with respect to allegations that the adopted law “eliminates existing unconstitutionalities in a constitutionally consistent manner.” The Constitutional Court in particular emphasised that the above-stated is even truer as regards laws that comprehensively regulate a certain broader field (i.e. systemic laws). Hence, the power of the Constitutional Court conferred thereon by Article 21 of the RPIA must be understood in the sense that the Constitutional Court can establish whether unconstitutional consequences have arisen due to the rejection of a law in a referendum if the allegations of the National Assembly demonstrate a manifest existing unconstitutionality due to which the immediate elimination thereof is necessary in order to safeguard constitutional values that are so important that they have to be given priority over the constitutional right of voters to decide on the law at issue in a referendum.[5]
 
7. The constitution-framers were also well aware of all the above-mentioned and described dilemmas and issues that the Constitutional Court has faced as regards decision-making in a referendum, namely with regard to the interpretation of Article 21 of the RPIA, in particular as regards the term “unconstitutional consequences”. In accordance with the principles of a state governed by the rule of law, in order to ensure prior clarity as to which referendums are admissible and which are not, in contrast to the regulation previously in force, the constitution-framers expressly, clearly, and precisely stated the instances in which a referendum may not be called in the second paragraph of Article 90 of the Constitution. Hence, following the amendment of the Constitution in 2013, a referendum may not be called:
– on laws on urgent measures to ensure the defence of the state, security, or the elimination of the consequences of natural disasters;
– on laws on taxes, customs duties, and other compulsory charges, and on the law adopted for the implementation of the state budget;
– on laws on the ratification of treaties;
– on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.
 
8. The first three indents are entirely clear and do not allow for the possibility of different legal interpretations, which unfortunately does not apply to the fourth indent. Also the constitution-framers were aware of that. Therefore, they attempted to clearly communicate which laws are those that eliminate an unconstitutionality in the field of human rights regarding which a referendum may not be called. In my assessment, they unfortunately failed to do so. Although they did not follow the proposal of the Expert Group of the Constitutional Commission, which proposed the diction “eliminating an established unconstitutionality,” and excluded the word “established”, they failed to clearly define what kind of unconstitutionality a law eliminates. Therefore, I completely concur with what the Constitutional Court stated, namely that excluding the word “established” from the text does not in and of itself mean that a referendum is also inadmissible when the legislature is eliminating an unconstitutionality it has established itself. Namely, if the adjective “established” had remained in the text, it would have still remained unclear which authority is called upon to establish unconstitutionalities (e.g. the National Assembly, the proposer of the law, legal professionals, advisory departments, separate opinions of Constitutional Court judges, etc.). Yet, Article 160 of the Constitution provides a clear answer; it is the Constitutional Court that has the power to establish unconstitutionalities with erga omnes effect. However, when rights contained in the ECHR are concerned, it is the ECtHR (Paragraph 50 of the reasoning of the Decision).
 
9. In view of the described muddle as regards the interpretation of Article 21 of the RPIA, amending the Constitution was a welcome solution [intended] to clearly define the grounds that exclude a legislative referendum. Unfortunately, also this regulation required that the Constitutional Court intervene, which clearly and precisely adopted the position that a referendum may not be called only as regards laws eliminating an unconstitutionality that has been established by the Constitutional Court or the ECtHR. This is the entirety of what the Constitutional Court decided on in the case at issue. I completely concur with the narrow interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution, as otherwise the referendum would no longer exist in the Slovene legal regulation. Furthermore, in my view, the MFRA‑D, whose subject is a new definition of marriage, is not a law that concerns the legal situation referred to in the fourth indent of the second paragraph of Article 90 of the Constitution.
 
10. In the case at issue, the Constitutional Court only decided on whether to allow a referendum or not. It did not substantively assess the MFRA-D, which directly changes the definition of marriage contained in Article 3 of the MFRA. Irrespective of the above, however, it seems just and fair to me that the people express their position on whether the traditional notion of a family should be preserved in the family law legislation and that they do so in a referendum. The law in question regulates the field of family law, and hence touches upon questions that affect the fundamental interpersonal relationships that concern virtually every individual. It is certain that the fundamental and deeply-rooted institutes of family law cannot be amended so “easily” as was done by the amendment of the Marriage and Family Relations Act, which has been in force since 1976 and regarding which the Constitutional Court has never established that the definition of marriage in force and the conditions for entering into one are unconstitutional.
 
 
                                                                                       Mag. Marta Klampfer
                                                                                                 Judge
 
 
[1] See Decisions No. U-I-47/94 and No. U-II-1/10, dated 10 June 2010 (Official Gazette RS, No. 50/10, and OdlUS XIX, 11).
[2] Dissenting Opinion of Judge Dr Ernest Petrič to Decisions of the Constitutional Court No. U-II-3/11, dated 8 December 2011, Official Gazette RS, No. 109/11 (Family Code), No. U-II-1/11, dated 10 March 2011, Official Gazette RS, No. 20/11 (retirement legislation), and No. U-II-2/11, dated 14 April 2011, Official Gazette RS, No. 30/11 (archival material).
[3] Para. 19 of the reasoning of Decision of the Constitutional Court No. U-II-2/09.
[4] Paras. 1 and 4 of the reasoning of the Concurring Opinion of Judge Jan Zobec to Decision of the Constitutional Court No. U-II-1/11.
[5] Paras. 16 and 17 of the reasoning of Decision of the Constitutional Court No. U-II-3/11.
 
 
U-II-1/15 
19 October 2015
 
Dissenting Opinion of Judge Dr Etelka Korpič – Horvat
 
The fundamental reasons due to which I did not concur with the Decision are presented below.
 
 
1. The question that the Constitutional Court had to answer in the case at issue is whether the referendum regarding the Act Amending the Marriage and Family Relations Act (EPA 257-VII, hereinafter referred to as the MFRA-D) is admissible in accordance with the fourth indent of the second paragraph of Article 90 of the Constitution. This indent of the second paragraph of Article 90 of the Constitution determines that a referendum may not be called “on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.” With respect to the fact that the question regarding the interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution was raised for the first time here, the answer of the Constitutional Court to this question is of particular importance due to its precedential character.
 
2. The Constitutional Court abrogated the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the MFRA-D, dated 26 March 2015 (Official Gazette RS, No. 20/15), and based its decision on the interpretation of the term unconstitutionality. It held that the fourth indent of the second paragraph of Article 90 of the Constitution must be interpreted so that it only refers to unconstitutionalities that have been previously (i.e. before the dispute regarding the calling of a referendum between the proposer and the National Assembly arose) established by the Constitutional Court or the European Court of Human Rights (the ECtHR).
 
3. In this decision-making, the Constitutional Court raised two questions: 1) which unconstitutionality does the fourth indent of the second paragraph of Article 90 of the Constitution refer to, and 2) who is to establish the unconstitutionality whose elimination is the subject of the law (Paragraph 42 of the reasoning).
 
4. I opine that the interpretation of the Constitutional Court that the elimination of an unconstitutionality only entails the elimination of unconstitutionalities that have been previously established by the Constitutional Court is formalistic, too narrow, and does not follow the methods of legal interpretation. The decision of the Constitutional Court is based on the literal and historically comparative interpretations of the previous and current regulations of the subsequent legislative referendum (Paragraphs 43 and 50 of the reasoning). A great deal has been written in the [legal] literature on methods of interpretation and interpretative conflicts (see, e.g., the works of Savigny, Trufant, Mandić, Larenzo, Rosso, Pavčnik, and others). Despite the different positions of theorists as regards how different interpretative rules should be taken into consideration, their application is not aleatory. Pavčnik states that “literal interpretation is merely the first level, which determines the possible meaning of words of a legal rule, but concurrently the level that determines the outside limit, which the interpreter must not cross.”[1] Pavčnik then opines that “[t]he fundamental orientation [...] is that only the interpretation that remains within [the limits] (no matter how porous) of the possible literal meaning of the legal text [...] is allowed, so that words only have a meaning within the appropriate context.”[2]
 
5. When relying on literal interpretation, the Constitutional Court did not consider the text of the fourth indent of the second paragraph of Article 90 of the Constitution [alone], but added thereto the requirement that such [an unconstitutionality as referred to therein] has been “previously” established by the Constitutional Court, and thus did not remain within the limits of the possible literal meaning of the legal text. It thereby changed the regulation and attributed to it new content. “Previously established” has a substantive meaning, namely that as regards laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality it is necessary that a decision of the Constitutional Court has already been adopted. No method of interpretation allows for such an enlargement of the text of the Constitution – be it literal, teleological, historical, or any other method. Had the constitution-framers opined that a referendum may not be called only as regards laws previously established as unconstitutional by the Constitutional Court, they should have written that expressly. But this is not written in the Constitution. The fourth indent of the second paragraph of Article 90 of the Constitution is only a part of the text (one of several indents) that regulates the prohibition of referendums. The objective of the provision is not in favorem of the right to a referendum but in favorem of the protection of human rights. The adopted interpretation opened the door to confirming laws in referendums very wide, as the Constitutional Court adopts few declaratory decisions by which it establishes that individual statutory provisions are inconsistent with the Constitution, and even fewer decisions by which it establishes that an entire law is inconsistent with the Constitution. Individual provisions thereof may already be obsolete and not in line with the zeitgeist. Therefore, I opine that the literal interpretation of the Constitutional Court overstepped the limits of what is possible.
 
6. In any event, literal interpretation must be verified by other methods of interpretation. To again cite Pavčnik, who wrote in his book Argumentacija v pravu [Argumentation in Law]: “The other orientation (when applying the rules of interpretation, remark by EKH) is that all the major aspects of interpretation have to be verified (i.e. the logical, systematic, historical, and teleological aspects) and [then] the solutions to which they bring us must be ascertained [...]. If the interpreter hesitates between several solutions, it selects the one that is in conformity with the intention of the rule of interpretation. In this sense, teleological interpretation together with literal interpretation is the central guideline for interpretation.”[3] The Constitutional Court did not support its assessment with a teleological interpretation, which is understandable in view of the adopted decision, as it would not contribute to the convincingness of the interpretation. The purpose of constitutional amendments was clear and known in general: to limit the right to decision-making in a referendum. This is also evident from the constitutional file.[4] It is not disputable that the new regulation differs from the previous one, as the objective of the amendment of the Constitution was to determine decision-making in a referendum in more detail and to limit it. Therefore, also the [objective] that the constitution-framers wished to attain by the fourth indent of the second paragraph of Article 90 of the Constitution is not disputable: that people would not decide on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality. Had the constitution-framers desired that referendums only be prohibited in instances where the Constitutional Court has previously established an unconstitutionality, they would have written that clearly. It is not possible to amend a text by interpretation.[5]
 
7. I opine that the Constitutional Court hollowed out the fourth indent of the second paragraph of Article 90 of the Constitution by such a restrictive decision. As already stated, even prior to the amendment of the Constitution it was not disputable that the prohibition of referendums applies to instances where unconstitutionalities were established in decisions adopted by the Constitutional Court, as its decisions are obligatory and have an erga omnes effect, otherwise there would be a violation of the principle of a state governed by the rule of law determined by Article 2 of the Constitution and the principle of the separation of powers determined by the second paragraph of Article 3 of the Constitution. Therefore, in such instances referendums were inadmissible even prior to the amendment of the Constitution. The fourth indent of the second paragraph of Article 90 of the Constitution has become, if I may use the term contained in Paragraph 50 of the decision, a pleonasm, as even without this provision the Constitutional Court would have been able to adopt the same decision.
 
8. The power of the Constitutional Court to authoritatively review the constitutionality of regulations adopted by the legislative branch of power, as well as the constitutionality and legality of regulations adopted by the executive branch of power, is clearly determined by the first indent of the first paragraph of Article 160 of the Constitution and was not, and is not, either disputable or questionable. The only authority that can establish the existence of an unconstitutionality is the Constitutional Court. A certain statutory regulation is deemed to be unconstitutional only when the Constitutional Court establishes that the regulation in that certain law is unconstitutional. Hence, an unconstitutionality legally exists once the Constitutional Court establishes it (hereinafter referred to as an established unconstitutionality). The legislature cannot establish an unconstitutionality with finality. This is not in its power. It can, however, allege that a certain statutory regulation is unconstitutional (hereinafter referred to as alleged unconstitutionality). When adopting an order by which the legislature rejects the calling of a legislative referendum on a certain law, it can rely on either an established unconstitutionality or an alleged unconstitutionality of the statutory regulation.
 
9. The Order of the legislature rejecting a referendum on the MFRA-D is not based on an established unconstitutionality, but merely on an alleged unconstitutionality. Therefore, the Constitutional Court abrogated it without examining the alleged unconstitutionality. The Constitutional Court substantiated its decision by the disputed interpretation of the provision of the fourth indent of the second paragraph of Article 90 of the Constitution. In its interpretation, it first accepted that the constitutional text refers to the elimination of an established unconstitutionality, which is not disputable; namely, as long as an unconstitutionality is not established, it does not exist and it is not necessary to eliminate something that does not exist. At this point, the question that arises is when must an unconstitutionality be established in order to fulfil the constitutional condition for the legislature to adopt an order rejecting the calling of a referendum: does it have to be established prior to the adoption of an order rejecting the calling of a referendum (i.e. a preliminarily established unconstitutionality) or can it also be established following the adoption of the order rejecting the calling of a referendum (i.e. a subsequently established unconstitutionality)?
 
10. Irrespective of the fact that the amended regulation in the Constitution strengthened the role of the National Assembly, as the National Assembly [can now] decide by itself to not call a referendum on a law eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality, in this specific case the Constitutional Court also retains the role of the authority competent to review the constitutionality of a law. Such entails that the Constitutional Court also retains the duty to ascertain the existence of unconstitutionalities. Since decisions of the National Assembly to reject the calling of a referendum are not final, the Constitutional Court must decide in disputes between the proposers of a referendum and the National Assembly if the latter rejects a request to call a legislative referendum, and carry out a review of the constitutionality of the law that, according to the National Assembly, eliminates the unconstitutionality at issue. In order to be able to resolve the dispute regarding the admissibility of a referendum [in the case at issue], I opine that the Constitutional Court should have answered the preliminary question of whether the law at issue is a law eliminating an unconstitutionality, regardless of the fact that prior to this dispute it had not adopted such a decision. The Constitutional Court should have carried out this task during the resolution of the dispute between the proposer of the referendum and the National Assembly, which rejected the calling of a referendum on the [mentioned] act, and in view of the specific case at issue.
 
11. I opine that the National Assembly was allowed to regulate by law the issue of the marriage of same-sex partners (Article 153 of the Constitution). To enter into marriage is a human right and fundamental freedom (Article 53 of the Constitution). Hence, the law at issue is a law that should eliminate an unconstitutionality in the field of human rights and fundamental freedoms. The assessment of whether this is a law that eliminates the mentioned unconstitutionality regarding which a referendum may not be called is left, in accordance with the second paragraph of Section II of the Constitutional Act amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 – hereinafter referred to as the UZ90, 97, 99), to the National Assembly, which may, if it opines that this is a law eliminating an unconstitutionality, reject the calling of a legislative referendum by an order. UZ90, 97, 99 also determines that the Constitutional Court has the power to decide on disputes regarding the calling of a referendum between the proposer and the National Assembly. Therefore, the Constitutional Court should have considered the case on the merits prior to adopting a decision regarding the calling of a referendum. It should have decided whether the admissibility of same-sex marriages eliminates the [mentioned] violation of human rights and fundamental freedoms. The Constitutional Court did not carry out such an assessment, but instead decided on the case by means of a narrow interpretation of the term “unconstitutionality” and thus opened [numerous] possibilities for decision-making in referendums – not only on the MFRA-D, but on all laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.
 
12. Instead of relying on the disputable interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution, the Constitutional Court could also have arrived at the desired abrogation of the Order rejecting a referendum on the MFRA-D via a different path, which is longer, but also less disputable. There was no legal impediment to carrying out a review of the alleged unconstitutionality. Had the review of the alleged unconstitutionality shown that the alleged unconstitutionality does not exist, the Constitutional Court would have declared in the Decision that it did not establish an unconstitutionality and that, therefore, it abrogates the legislature’s order rejecting the calling of a referendum. Perhaps it was the fear that the review of the alleged unconstitutionality would establish an actual unconstitutionality, which does not allow for a referendum, that resulted in the Constitutional Court insisting on the disputed interpretation of the [mentioned] constitutional provision.
 
 
                                                                                   Dr Etelka Korpič – Horvat 
                                                                                                 Judge
 
[1] M. Pavčnik, Teorija prava, Prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], Cankarjeva založba, Ljubljana 1997, p. 356.
[2] M. Pavčnik, Argumentacija v pravu [Argumentation in Law], 2nd Revised Edition, Cankarjeva založba, Ljubljana 2004, pp. 316 and 317.
[3] Ibidem, 2004.
[4] See: Report on the Preparation of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia, EPA 620-VI; Report on the Motion for the Initiation of the Procedure for Amending the Constitution of the Republic of Slovenia with the Draft Constitutional Act Amending the Constitution of the Republic of Slovenia, No. 001-02/12-16, dated 15 January 2013, EPA 620-VI; Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (UZ 90, 97, 99); and other [documents].
[5] See Decision of the Constitutional Court No. U-II-1/11, dated 10 March 2011 (Official Gazette RS, No. 20/11).
 
 
U-II-1/15
19 October 2015
 
     Concurring Opinion of Judge Mag. Miroslav Mozetič
 
1. I voted for the adoption of Decision No. U-II-1/15, dated 28 September 2015. I accept the arguments from the Decision, although I am of the opinion that the Constitutional Court could have interpreted the fourth indent of the second paragraph of Article 90 of the Constitution more broadly. However, even taking into account the broader interpretation, my considerations lead to the same conclusion, namely that, in the case at issue, the referendum (on the concrete law at issue) is admissible. Therefore, I would like to provide additional reasons for the way I voted.
 
2. First of all, let me stress that I absolutely do not concur with the position – which regularly appears in the public – that the majority cannot (i.e. must not) decide on the rights (and duties) of minorities. Understandably, it is the majority that decides, for who else should? The rights and duties of citizens and other persons are determined by the National Assembly and by law (Article 87 of the Constitution). The National Assembly adopts laws by a majority of votes cast by those deputies present, except where a different type of majority is determined by the Constitution or by law (Article 86 of the Constitution). The above mentioned also applies to laws that regulate the manner of exercising human rights, and also to laws that limit (interfere with) human rights. Hence, the legislative procedure and the inclusion of the public therein are extremely important, especially when the regulation of sensitive social relationships is at stake. Therefore, in such cases, a legislative procedure that excludes the public and prevents public discussion is inadmissible and I am convinced that it is also constitutionally disputable. For such reason, it is right that the Slovene Constitution gives the people the opportunity to decide on laws and thus also to supervise the legislature. In view of the regulation in force, a referendum entails in particular the exercise of supervision over the legislature by voters. By holding a referendum, voters prevent the legislature from adopting laws unacceptable to them.  
 
3. But perhaps the above-mentioned position regarding the decision-making of the majority as regards minorities should be understood as if it only applies to decision-making in a referendum. Another argument exists, namely that the people are unable to decide on all questions regulated by law, that they are easy to manipulate, to deceive, that they are reactionary, do not want change, etc. I reject such positions because are they not then also unable to vote (the voters are the people); should it thus be prescribed that the only people who may vote (also in referendums) are those who are “smart, progressive, and who do not let themselves be manipulated,” but certainly not “reactionaries or Catholics”? Fortunately, this is not so. It is admissible to call a referendum as regards any adopted law, including those that regulate human rights and fundamental freedoms, except those regulating the content determined by the second paragraph of Article 90 of the Constitution. And understandably, also in a referendum it is the majority that decides – considering the constitutional provision, a pretty significant majority. A law is rejected in a referendum if a majority of voters who have cast valid votes vote against the law, provided at least one fifth of all qualified voters have voted against the law (the fourth paragraph of Article 90 of the Constitution).
 
4. What is important and binding on both the National Assembly and the people (voters), who by voting in a referendum on a concrete law assume the role of the legislator, is that both of them are bound by the Constitution and that both must adopt laws that are in conformity with the Constitution. 
 
5. Therefore, it is completely undisputable that also voters in a referendum can also decide on laws regulating human rights and fundamental freedoms, with the only exception being that which is determined by the fourth indent of the second paragraph of Article 90 of the Constitution, which reads: a referendum may not be called “on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.”
 
6. Hence, a referendum may not be called on laws eliminating unconstitutionalities in the field of human rights and fundamental freedoms or any other unconstitutionality. This means that a referendum may be called on laws regulating relations in the field of human rights and fundamental freedoms.
 
7. The public also misinterprets the power of the Constitutional Court as regards the procedure for calling a referendum. From the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (UZ90, 97, 99), it clearly follows that the Constitutional Court decides on any dispute between the proposer of a referendum and the National Assembly if the latter rejects a request to call a legislative referendum. In such proceedings, the Constitutional Court does not decide on human rights but on the question of whether the National Assembly justifiably rejected the calling of the referendum.
 
8. The key term in such proceedings is “the elimination of an unconstitutionality.” When speaking of the elimination of an unconstitutionality, the next key question is how we know that a certain regulation is unconstitutional, or, more precisely, who it is that establishes such an unconstitutionality. It is undisputable that, in accordance with the Slovene Constitution, only the Constitutional Court has the power to establish unconstitutionalities. Once the Constitutional Court establishes a certain unconstitutionality, the National Assembly has the duty to eliminate it; in the event of such, it is undisputable that this entails the elimination of an unconstitutionality. In such a case, a referendum is as a general rule not admissible, as the National Assembly has the duty to implement the decision of the Constitutional Court, which is something that even the people cannot prevent by means of a referendum. In view of the above, I was able to concur with the position stated in the Decision that the only instance in which a referendum on a law is inadmissible on the basis of the fourth indent of the second paragraph of Article 90 of the Constitution is one in which the National Assembly eliminates an unconstitutionality that has been established by a decision of the Constitutional Court or where such a duty follows from a judgment of the ECtHR.
 
9. The only reason for amending Article 90 of the Constitution was to determine the laws and statutory content regarding which a referendum is inadmissible. There were no such prohibitions in the regulation previously in force. If the Constitution does not “allow”, which equals “prohibits”, it is undisputable that there is no right or that the “people” waived their right to request the calling of a referendum and to vote in one. Therefore, one would expect from the constitution-framers that such prohibitions, which entail an exception from or waiver of the right to a referendum, would be drafted in a clear and precise manner, in particular because the Constitution gives the right to decide on the admissibility of a referendum to the National Assembly, which prior to that adopted the law that would be decided on in a referendum. It is true that such decision is subject to control by the Constitutional Court, but this draws the Constitutional Court, as a special judicial authority, into the legislative sphere, which, by the nature of the matter, is a political process.
 
10. However, the text of the second paragraph of Article 90 of the Constitution, in particular the fourth indent thereof, is very open-ended and allows for different interpretations.
 
11. One of the possible interpretations is the interpretation stated in the Decision, with which I concur. That [interpretation] limits the possibility to interfere with the right to decision-making in a referendum to the lowest possible degree. A referendum is inadmissible only in instances where the Constitutional Court has already established an unconstitutionality, i.e. where the National Assembly implements a decision of the Constitutional Court, which it has the duty to implement, and operates within the limits of eliminating the established unconstitutionality. Such an interpretation is a narrow one, but in conformity with the principle that exceptions should be interpreted narrowly (i.e. so that the interpretation does not extend exceptions). On the other hand, however, such an interpretation sets in place a fairly clear delineation between an admissible and an inadmissible referendum, and thus also prevents frequent disputes between proposers of referendums and the National Assembly. 
 
12. I reflected upon it and can also accept the broader interpretation of the mentioned indent. Not only is a referendum inadmissible in cases where an unconstitutionality established by a decision of the Constitutional Court is being eliminated, but also where what is at issue is an unconstitutionality that has not been established by a decision of the Constitutional Court but it is the National Assembly that claims and demonstrates that the purpose of the adopted law was to eliminate certain concrete unconstitutionalities.
 
13. However, I believe that one has to be careful as regards this broader interpretation. In fact, there is a risk that it can nullify the right to a referendum as regards such laws as are referred to in the fourth indent of the second paragraph of Article 90 of the Constitution. Namely, it can lead to the conclusion that a referendum regarding a law that in any manner regulates issues (relations) concerning human rights and fundamental freedoms (or hints at human rights) or that collides with another constitutional provision is inadmissible. So broad an interpretation, in my opinion, is not even based on the text itself, as otherwise the term “regulates” should have been applied, and not “eliminates”. However, it is also a matter of understanding and interpretation as to what is regulation and what is elimination. Hence, I think that the broader interpretation raises numerous questions and would cause frequent discord and disputes between the proposers of referendums and the National Assembly. Such an interpretation is disputable also from the viewpoint of the function of voters’ supervision over the legislature. In such a manner the legislature can completely avoid supervision by voters.
 
14. If we concede, for the purpose of the application of the fourth indent of the second paragraph of Article 90 of the Constitution, that it suffices that the National Assembly claims that it is eliminating an unconstitutionality, then it is also imperative to impose on the National Assembly certain limitations or requirements. In this respect, also the relationship between the National Assembly and voters must be clarified (the relationship between the legislature and the supervisors thereof). Firstly, if the National Assembly claims that it is eliminating an unconstitutionality by the adopted law, then it must substantiate such claim. In the legislative file that accompanies the draft act it must be clearly stated that the purpose (i.e. objective) of the law is to eliminate an unconstitutionality, which unconstitutionality exists, the grounds justifying the claim of the National Assembly regarding the existence of the unconstitutionality, the manner of eliminating such, whether there exist different constitutional means to do such, the grounds for choosing the concrete manner of eliminating such unconstitutionality, and which provisions are to eliminate the unconstitutionality at issue. Hence, from the draft act it must be clearly evident that what is at issue is the “elimination of an unconstitutionality” within the meaning of the fourth indent of the second paragraph of Article 90 of the Constitution. The interference with the right to a referendum necessitates strict requirements that the National Assembly must fulfil as regards identifying the unconstitutionality and the substantiation thereof. If this right is excluded, also the supervision of voters over the National Assembly as the legislature is excluded. The exclusion of the right to a referendum must be based on a clearly identified unconstitutionality. The unconstitutionality must be clear and precise. Doubt as to conformity with the Constitution does not suffice. Otherwise, it is likely that this constitutional provision would be misused, and the right to a referendum circumvented.
 
15. Also the manner of resolving a dispute between the proposer of a referendum and the National Assembly before the Constitutional Court requires such strictness. In this dispute, the Constitutional Court assesses whether the decision of the National assembly to not allow a referendum is in conformity with the Constitution. A short time limit is determined for decision-making; the request suspends the entry into force of the law, the possible referendum is a part of the legislative procedure, as whether the law will enter into force or not depends on the outcome of the referendum. I opine that in this dispute we cannot expect the Constitutional Court to carry out an assessment of whether the claimed unconstitutionality really exists or that it will carry out an assessment of the “challenged” regulations that the National Assembly claims are unconstitutional and that the National Assembly would eliminate such an unconstitutionality by the adopted law. This would put the Constitutional Court in an impossible position, especially if significant systemic amendments were at issue. Therefore, the Constitutional Court can only assess whether the allegations of the National Assembly regarding the existence of the unconstitutionalities it claims to eliminate are demonstrated to such a degree of probability that they do not allow serious doubt regarding their veracity. Otherwise, the Constitutional Court would have to carry out a “standard” assessment of the laws claimed to be unconstitutional. If we adopted the position that such strictness is unnecessary and that the mere doubt of the National Assembly regarding the constitutionality of the regulation suffices, then we would put the Constitutional Court in the position of having to carry out a “full” review of constitutionality. In a sense, this consideration regarding the broader interpretation leads me to the conclusion that in any event it is the Constitutional Court that assesses whether what is at issue is indeed the elimination of an unconstitutionality by first establishing the existence of the unconstitutionality. In accordance with the narrower interpretation (adopted by the majority in the Decision), an unconstitutionality must be established by a decision of the Constitutional Court, whereas in accordance with the broader interpretation, the Constitutional Court establishes the existence of an unconstitutionality in proceedings to decide in a dispute between the proposer of a referendum and the National Assembly. Ultimately, also this consideration reinforces my conviction that the interpretation adopted in the Decision is correct. Perhaps certain considerations that are apparent in certain published papers are correct, namely that the constitution-framers wished to limit as far as possible the right of voters to decide, in a referendum, on adopted laws regulating an issue relating to human rights and fundamental freedoms (i.e. to virtually prohibit all such referendums), but settled for a compromise solution that was possible at the time, so that now it is expected that the Constitutional Court, by interpreting the Constitution, would achieve the objective that the constitution-framers could not. Also some pre-emptive attacks (even prior to the Decision being published) on some Constitutional Court judges point in this direction. It is not difficult to imagine what will happen once the Decision is published. 
 
16. In addition to strict requirements regarding substantiating the alleged unconstitutionalities that are allegedly subject to elimination, also the manner in which they are to be eliminated is important in my opinion. What I have in mind in this respect is the generally recognised principle of the legislature’s autonomy. It is the legislature that selects the manner by which [an unconstitutionality] will be eliminated, and, to this end, it has at its disposition several constitutionally consistent manners of elimination, or it can select the law by [whose amendment] it will realise such elimination. This autonomy of the legislature is indisputable; however, I believe that one needs to differentiate between the relationship between the National Assembly (the legislature) and the Constitutional Court, on the one hand, and the relationship between the National Assembly (the legislature) and the people, on the other. The Constitutional Court only has the power to assess the constitutionality of statutory solutions, but not the appropriateness of a regulation, the manner of regulation, or the selection of the law enacting the regulation. Understandably, the Constitutional Court does not address such questions and must not assess them. I am convinced, however, that such does not apply in the relationship between the National Assembly and the people. In this relationship, the people have the role of some sort of supervisor over the National Assembly, i.e. over its representatives, which they elected and on which they conferred a mandate to adopt laws; therefore, the people can interfere with the legislative process. For such reason, it is very important for the National Assembly to include the public in the debate, in particular in the statutory regulation of sensitive social interactions. The National Assembly must convince the people that the statutory regulation it proposes is appropriate, or else it risks popular supervision in the form of a referendum. In my opinion, considering the regulation of Article 90 of the Constitution currently in force, the Constitutional Court cannot prevent such supervision. 
 
17. The proposer of the Act first established that the legislature regulates three types of partnerships, namely marriage, common-law marriage, and a registered same-sex partnership. It also established (and alleges) that the Slovene legal order does not confer rights on [persons in] registered same-sex partnerships and that it does not recognise factual [i.e. non-registered] same-sex partnerships. Registered same-sex partnerships are regulated by the Same-Sex Civil Partnership Registration Act (SSCPRA). The proposer of the Act alleges that the current legislation regulates same-sex partnerships in a deficient, non-transparent, and unconstitutional manner. Although the two opposite-sex partnerships and the “two” same-sex “partnerships” are essentially the same in the sense that the partners are in a committed relationship, close to each other, and mutually assist and support each other, the legislation currently in force treats them differently, which is discriminatory. Such an unconstitutional situation requires a comprehensive and systemic solution. The proposer of the Act claims that the proposed statutory amendment (i.e. the MFRA-D) remedies [the unconstitutionality] in an effective and simple manner, and thus fully implements the constitutional principle of equality.
 
18. The stated objectives and principles of the MFRA-D are the following: “The Draft Act has one single objective and principle, namely to eliminate provisions that determine that marriage is a partnership of two persons of opposite sex, thus determining sex and sexual orientation as the personal circumstances that the acquisition of individual rights is dependent on. Such a provision is contrary to Article 14 of the Constitution. The Draft Act thus introduces a new concept of marriage and common-law marriage, which can come into existence and continue to exist regardless of the sex of the two partners.” Below, two decisions of the Constitutional Court are stated that do not refer to the MFRA, but to the SSCPRA. The National Assembly adopted the proposed Act.
 
19. Although I do not deny the need, necessity even, for the National Assembly to regulate a series of issues relating to stable (lasting) same-sex partnerships, I cannot concur with the position that in the case at issue the Constitutional Court should uphold the Order of the National Assembly declaring that the referendum is inadmissible. In fact, the Act extensively interferes with the existing (traditional) regulation of marriage and common-law marriage, which is not unconstitutional. In only states in a generalised manner which unconstitutionalities exist and that it wishes to eliminate, with regard to which the allegation that the MFRA is unconstitutional is completely erroneous and not true. By no means did the National Assembly substantiate its allegations, and least of all did it state the reasons why it was interfering with a law that is in conformity with the Constitution. As I have stated above, I do not deny the need to regulate a number of unregulated issues in the field of same-sex partnerships. The National Assembly had at its disposal different options and methods to do so. It would not be unconstitutional for these relations to be regulated by separate regulations and it is not necessary for them to be regulated in a manner that is completely identical to the regulation of marriage in the MFRA. The choice of the method falls within the competence of the legislature. Whether it has chosen the right and appropriate method is something that does not concern the Constitutional Court. However, as I have stated above, in doing so, the National Assembly cannot deny voters the right to a referendum. Voters can oppose its choice and demand that they themselves decide on the matter in a referendum.
 
20. Finally, allow me reiterate what I have stated a number of times already. It is imperative – and this is also required by the principle of democracy, the principle of the separation of powers, and the right of citizens to participate in the management of public affairs – that the National Assembly conduct legislative procedures transparently and enable the public to participate in these procedures, in particular when significant systemic amendments that regulate sensitive social relations are at issue.
 
 
Mag. Miroslav Mozetič
Judge
 
 
U-II-1/15
19 October 2015
 
Concurring Opinion of Judge Dr Ernest Petrič
 
1. The present Decision of the Constitutional Court (No. U-II-1/15) concerns decision-making on the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the Act Amending the Marriage and Family Relations Act (MFRA-D, EPA 257-VII), dated 26 March 2015 (Official Gazette RS, No. 20/15). The Constitutional Court abrogated the Order of the National Assembly by a majority of votes. I concur with the Decision and the arguments therein. However, I would like to add certain considerations that led me to support the decision.
 
2. Similarly as I already stated in my Dissenting Opinion to Decision No. U-II-3/11, dated 8 December 2011 (Official Gazette RS, No. 109/11), wherein on the basis of Article 21 of the Referendum and Popular Initiative Act (Official Gazette RS, No. 26/07 – official consolidated text – hereinafter referred to as the RPIA) the Constitutional Court only assessed whether a referendum should not be allowed because the possible rejection of the law at issue would cause unconstitutional consequences to arise, also the assessment at issue does not concern the conformity of the content of the Act Amending the Marriage and Family Relations Act (EPA 257-VII – hereinafter referred to as the MFRA-D) with the Constitution. Hence, what is at issue is not a substantive assessment of the conformity of the new statutory regulation of family relations with the Constitution, but a decision in a dispute on the admissibility of a referendum.
 
3. It is the first decision of the Constitutional Court on the admissibility of a referendum based on the new constitutional regulation of referendums as determined by the amended Article 90 of the Constitution. This regulation differs in many aspects from the regulation previously in force, regarding which, insofar as the RPIA was concerned, in particular Article 21 thereof, I wrote extensively in five separate opinions (Decisions No. U-II-1/11, dated 10 March 2011, Official Gazette RS, No. 20/11; No. U-II-2/11, dated 14 April 2011, Official Gazette RS, No. 30/11; No. U-II-3/11; and No. U-II-1/12, U-II-2/12, dated 17 December 2012, Official Gazette RS, No. 102/12, and OdlUS XIX, 39). The crux of my position at the time, which does not need to be presented in more detail at this point, was that the regulation of referendums in force at the time, which included the Constitutional Court deciding on the admissibility of a referendum on the basis of Article 21 of the RPIA, entailed a constitutionally disputable interference of the Constitutional Court with the legislative procedure, which was, I believe, disputable from the principle of the separation of powers (Article 3 of the Constitution).
 
4. The new regulation of referendums determined by the amendment of Article 90 of the Constitution introduced, inter alia, two modifications that are essential for the decision-making of the Constitutional Court in the case at issue and also for the future decision-making thereof on the admissibility of a referendum, namely that, contrary to the regulation previously in force, which did not determine the instances in which referendums are inadmissible, the constitution-framers now precisely enumerated the instances in which a referendum may not be called in the second paragraph of Article 90 of the Constitution. In such instances the right to a referendum does not even exist. Furthermore, in the amendment the constitution-framers determined that in the referendum procedure, which is a part of the legislative procedure in the broader sense, the Constitutional Court has the power to decide on a dispute on the admissibility of a referendum, namely by mutatis mutandis application of Article 21 of the RPIA.
 
5. The difference between the regulation previously in force and the current regulation is crucial. The latter eliminates the deficiencies, i.e. the constitutional reservations, that I expressed in the separate opinions mentioned above, as it establishes the constitutional basis and framework for the decision-making of the Constitutional Court on the admissibility of a referendum. This far-reaching authorisation conferred on the Constitutional Court to interfere with the legislative procedure and assess whether “unconstitutional consequences could arise” (Article 90 of the Constitution previously in force) and prohibit a referendum was previously conferred by law, namely by Article 21 of the RPIA, and not by the Constitution. The previous Article 90 of the Constitution determined that referendums are regulated by law, which does not mean, however, that a law also determines when referendums are admissible. Since the right to a referendum, i.e. to direct democratic decision-making, is a constitutional right, only the Constitution may limit it if such limitation is to be in conformity with the Constitution, unless the Constitution confers an express authorisation on the legislature for such. This is now regulated by the amendment of Article 90 of the Constitution.
 
6. However, there remains an open question that is relevant for the decision-making of the Constitutional Court in the case at issue, namely as to how far this power of the Constitutional Court can extend. In the mentioned separate opinions, I extensively substantiated the position that the decision-making of the Constitutional Court on the admissibility of a referendum on the basis of Article 21 of the RPIA by an assessment of whether “unconstitutional consequences would arise” as a result of the rejection of a law in a referendum, hence an assessment of this possibility, which, in fact, is hypothetical, and the consequent prohibition of a referendum, entails a constitutionally disputable interference by the judicial branch of power with the legislative branch, i.e. with the legislative procedure. However, in at least two separate opinions, when substantiating the need for a review of the constitutionality of Article 21 of the RPIA, i.e. on the admissibility of an interference by the Constitutional Court with the referendum procedure or legislative procedure, I wrote that I can prima facie concur with the opinion that when what is at issue is the prohibition of a referendum on a law that eliminates an unconstitutionality that has already been established, the “intrusion” of the Constitutional Court into the legislative sphere by deciding on [the admissibility of] a referendum is not constitutionally questionable.
 
7. I am referring to this part (i.e. Paragraph 12 of my Dissenting Opinion to Decision No. U-II-2/11) of the separate opinion I wrote four years ago because it matches nearly word for word the diction of the fourth indent of the second paragraph of the amended Article 90 of the Constitution, and certainly matches the underlying logic thereof. It is precisely this fourth indent of the second paragraph of Article 90 of the Constitution that is crucial for the assessment at issue. In the fourth indent of the second paragraph of Article 90 of the Constitution, the constitution-framers expressly gave the National Assembly the power to prohibit referendums “on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.” It is interesting to compare my constitutional remarks as regards the regulation previously in force with the approach of the legislature regarding the amendment of Article 90 of the Constitution. This time, in exhaustively enumerated instances, the constitution-framers nullified the right to a referendum, which falls within their competence. They also exempted laws “eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality” from decision-making in a referendum. Thus, “eliminating” [is the focus].
 
8. Under the regulation currently in force, which is a transitional regulation in force until the RPIA is harmonised with the new constitutional regulation contained in Article 90 of the Constitution, in accordance with the second paragraph of Section II of the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (Official Gazette RS, No. 47/13 – UZ90, 97, 99), Article 21 of the RPIA applies mutatis mutandis, such that the Constitutional Court decides on any dispute between the proposer of a referendum and the National Assembly if the latter rejects a request to call a legislative referendum. By harmonising [the RPIA], which is already past due, the National Assembly has the option to define with even more precision the role of the Constitutional Court in disputes on the admissibility of a referendum. The Constitutional Court, however, is sine dubio the one and only institution that decides on such disputes. In the case at issue, such also applies to the Order of the National Assembly Rejecting a Request to Call a Legislative Referendum on the MFRA-D, dated 26 March 2015.
 
9. By the challenged Order, the National Assembly rejected a request to call a referendum regarding the MFRA-D, as in its view this is a law eliminating an unconstitutionality in the field of human rights and fundamental freedoms. For such reason, the Constitutional Court had to assess whether the MFRA-D is a law by which the legislature eliminated an unconstitutionality in the field of human rights and fundamental freedoms, and hence concerns the legal situation determined by the fourth indent of the second paragraph of Article 90 of the Constitution, regarding which a referendum is inadmissible.
 
10. I concur with the majority position in the Decision that the literal interpretation is the central basis for the interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution or for the interpretation of the phrase “elimination of an unconstitutionality.” It is only possible to [intentionally] eliminate something whose existence is known to the subject eliminating it. Since it is a logical imperative that eliminating an unconstitutionality presupposes that such an unconstitutionality has already been established beforehand, it had to be established, by means of a systemic interpretation, which subject can establish such an unconstitutionality. The answer to this dilemma lies in the principle of the separation of powers, in accordance with which it is the Constitutional Court that, on the basis of the first paragraph of Article 160 of the Constitution, has the power to assess the conformity of regulations with the Constitution. The power to establish unconstitutionalities with finality and in an authoritative manner is only conferred on the Constitutional Court.
 
11. A narrow understanding of the fourth indent of the second paragraph of Article 90 of the Constitution is also in conformity with the principle of popular sovereignty determined by the first sentence of the second paragraph of Article 3 of the Constitution, in accordance with which in Slovenia power is vested in the people, who can also exercise it directly. Referendums in which people decide directly by voting whether a certain law should enter into force or not are the most important form of the direct exercise of power. Hence, the right to request the calling of a legislative referendum determined by the first paragraph of Article 90 of the Constitution is an important constitutional right. The right to vote in a referendum determined by the third paragraph of Article 90 of the Constitution is constitutionally protected as a human right by Article 44 of the Constitution. A decision to not allow the calling of a referendum deprives the people of these two rights; therefore the instances in which such can occur must be interpreted narrowly and as an exception to the general recognition of the people’s right to directly participate in the exercise of legislative power by voting in a referendum.
 
12. In the procedure for drafting a law, it is true that the new constitutional regulation, as opposed to the previous one, envisages an interference by the judicial branch of power with this procedure, namely decision-making by the Constitutional Court in a dispute on the admissibility of a referendum. However, also in accordance with the new constitutional regulation, due to the principle of the separation of powers and the recognition of the right of the people – as the highest bearer of power – to also directly participate in the exercise of the legislative function, such an interference must be as minimal as possible. The interpretation of the constitutional provisions that enable the revocation of the right to a referendum must be narrow and restrictive.
 
13. As I stated in the above-mentioned separate opinions, decision-making by the Constitutional Court on the admissibility of a referendum entails an interference with the legislative procedure and thus with the legislative function, which in accordance with the Constitution is exercised by the National Assembly and the people in a referendum. Although now this power is determined by a constitutional act, it still entails an interference with the legislative procedure, even under the new constitutional regulation.
 
14. Due to the mentioned reasons, which I have already stated in the cited separate opinions and which are also relevant under the circumstances of the new constitutional regulation of referendums, I concur with the majority position of the Constitutional Court that the wording of the fourth indent of the second paragraph of Article 90 of the Constitution must be understood restrictively, such that a referendum may not be called only with regard to laws eliminating an unconstitutionality that the Constitutional Court has previously established by a decision, or in cases involving a violation of a right determined by the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94) established by the European Court of Human Rights.
 
15. I would like to add a few considerations to the above-mentioned reasons, without any intention to interfere with the substantive discussion regarding marriage. In accordance with the new regulation of referendums determined by Article 90 of the Constitution, the possibility of the people to decide directly in a referendum in the legislative procedure is significantly limited and narrowed compared to the previous regulation. Relatively strict, demanding conditions are determined; in addition to the express prohibition of a referendum in the first through third indents of the second paragraph of Article 90 of the Constitution, it is, inter alia, also determined that referendums on laws eliminating an unconstitutionality are inadmissible.
 
16. The case at issue concerns the MFRA-D, which in three articles essentially determines that marriage is “a partnership of two persons” and no longer “a partnership of a man and a woman.” In fact, the legislature claims that by this change it indirectly eliminates discrimination between heterosexual and homosexual couples in various fields of life; however, this is something that it could have done directly. In particular, it should have eliminated those unconstitutionalities that the Constitutional Court has already established.
 
17. Marriage, namely a partnership between a man and a woman based on law such as has been known for centuries in Europe, is naturally not unconstitutional; this is also what the legislature itself stated in the procedure for adopting the MFRA-D. Hence, by modifying marriage, the MFRA-D does not eliminate an unconstitutionality but extends “marriage” from “a partnership of a man and a woman” to “a partnership of two persons.” This is certainly a reflection of modern social trends in this part of the world and is understandably not unconstitutional.
 
18. Sine dubio, it can be claimed that also marriage as a partnership of two (homosexual) persons in our constitutional democracy, which is a part of the modern and democratic world based on respect for human dignity and the prohibition of any discrimination, including sexual orientation, cannot be unconstitutional. The legislature was entitled to enact such a regulation and this is what it did by means of the MFRA‑D. I will refrain from considerations regarding the reasonableness and appropriateness of such a decision. This falls within the legislature’s discretion.
 
19. In light of the above, neither the hitherto regulation of marriage as a heterosexual partnership nor the new regulation, which also regulates homosexual marriage, are unconstitutional. Hence, strictu sensu, this is not a constitutional issue, but the legislative regulation of marriage that is in line with social trends and the needs of modern life. It is the people who decide, either through their representatives in the National Assembly or directly in a referendum under the conditions determined by the Constitution, what kind of partnerships regulated by law shall exist. From the viewpoint of the Constitution, this is simply indisputable!
 
20. By adopting the Order Rejecting a Request to Call a Legislative Referendum on the MFRA-D, and claiming that the MFRA-D eliminates an unconstitutionality, the National Assembly raised the issue of the relationship between marriage as a partnership of a “man and a woman” and marriage as a partnership of “two persons” to the level of constitutional assessment, although even the National Assembly itself does not claim that the hitherto regulation of marriage is unconstitutional, and at the same time it would be absurd to claim that the regulation introduced by the MFRA-D, i.e. the marriage of “two persons”, is unconstitutional.
 
21. Thus, the question is raised as to whether in the case at issue, which does not even concern a constitutional issue, it is actually justified to prohibit a referendum on the basis of the fourth indent of the second paragraph of Article 90 of the Constitution, which expressly limits the right to a referendum only as regards laws “eliminating an unconstitutionality.” Had the Constitutional Court upheld the Order of the National Assembly adopted on the basis of the fourth indent of the second paragraph of Article 90 of the Constitution, it would have actually communicated that the hitherto regulation of marriage was unconstitutional.
 
22. I definitely concur with the position that in a constitutional democracy, such as the Republic of Slovenia, all authorities, in particular the National Assembly, are obliged to operate within the framework of the Constitution and to ensure that within their powers they adopt regulations that are in conformity with the Constitution. Within this framework there also falls the duty of the legislature to follow the development of constitutional values and human rights in modern society, to broaden the circle of human rights, and to narrow the possibility of any kind of discrimination. In this sense, I support the intention of the National Assembly to adapt the legislation regarding marriage and family relations to the current needs and so as to ensure respect for everyone’s equality and human dignity. I support these efforts. However, as this does not concern the elimination of an unconstitutionality, I do not see constitutional reasons for excluding a referendum, i.e. the directly expressed will of the people as regards these efforts.
 
23. Stemming from the current constitutional regulation de lege lata, as was introduced in particular by the amended Article 90 of the Constitution, namely the prohibition of a referendum in relation to the “elimination of an unconstitutionality,” and Article 160 of the Constitution stating that the Constitutional Court has the power to decide erga omnes and with finality on “consistency with the Constitution,” and because the people also have the right to decide directly in a referendum, which can only be limited by the Constitution and in a precise (lex certa) and restrictive manner, as a limitation of this right is merely an exception, I have to concur with the proposed decision of the majority of Constitutional Court judges to abrogate the challenged Order of the National Assembly.
 
24. Since in Slovenia decisions of the Constitutional Court are often subject to lay assessments, commentaries, and disqualifications in the media and the public, without the authors thereof having even read the reasoning delivered by the Court, yet alone the separate opinions of the judges, let me summarise in lay terms what I have stated in my separate opinion:
 
a) In the case at issue, the Constitutional Court did not adopt a position as to the constitutionality of the marriage of “two persons”.
 
b) The Constitutional Court only decided on whether to uphold the prohibition of a referendum, i.e. a prohibition on the people expressing their will directly in the case at hand.
 
c) The hitherto regulation of marriage as a partnership of a man and a woman is not unconstitutional.
 
d) The new regulation, which would deem a partnership of “two persons” to be a marriage is also not unconstitutional.
 
e) Since the new regulation of marriage does not eliminate an unconstitutionality, it is impossible, in accordance with the constitutional regulation in force, to exclude direct voting by voters from the legislative procedure if they collect the number of signatures required by the Constitution for the calling of a referendum.
 
 
                                                                                                          Dr Ernest Petrič
                                                                                                                  Judge
 
 
U-II-1/15
19 October 2015
 
Dissenting Opinion of Judge Jasna Pogačar
 
1. I do not concur with the interpretation that the grounds for excluding [a referendum] determined by the fourth indent of the second paragraph of Article 90 of the Constitution only refer to laws eliminating an unconstitutionality that has already been established by the Constitutional Court or by the European Court of Human Rights (ECtHR). In my view, such an interpretation is not convincing and has no basis in the Constitution.    
 
2. In order for a legal interpretation of the meaning of a legal rule to be convincing, it has to be comprehensive and based on arguments that follow established methods of interpretation. These methods are in fact different, but they complement each other, because they pursue the same objective, i.e. finding the true meaning of an already formed legal rule. The subject or the basis of legal interpretation is the text of a legal rule; therefore, first, a literal interpretation should be applied. A literal interpretation is grounded in the linguistic framework, whereas the interpretation on which the decision of the Constitutional Court is based is focused on answering the question of who established an unconstitutionality whose elimination is the subject of the law regarding which the calling of a legislative referendum has been proposed. It was stated that it is a logical imperative that eliminating an unconstitutionality presupposes that such an unconstitutionality has already been established beforehand, as it is impossible to eliminate something whose existence is completely unknown to the subject eliminating it. According to the interpretation on which the decision of the Constitutional Court is based, the legislature only eliminates an unconstitutionality in cases where a decision of the Constitutional Court or a judgment of the ECtHR directly binds it to do so.
 
3. The following text forms the literal framework for the interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution:
“A referendum may not be called on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.”
 
The constitution-framers used the general term unconstitutionality, which, in view of its definition in the Slovar slovenskega knjižnega jezika [Dictionary of Slovene Literary Language], is used to designate both the characteristics of (e.g. of a regulation) and the state of affairs in a certain field. In the legal terminology, this term also denotes a situation entailing an inconsistency with the Constitution, be it either a subject matter that is already regulated or a question that, in accordance with the Constitution, should have been regulated by law, but is not. The latter case entails an unconstitutional legal gap. In my view, from the wording of the fourth indent of the second paragraph of Article 90 of the Constitution as a whole, it is not possible to conclude that the grounds for excluding [a referendum] contained therein only refer to the elimination of an unconstitutionality that has already been established by the Constitutional Court or by the ECtHR. However, it is possible to understand that the question of who established an unconstitutionality whose elimination is the subject of the law regarding which the calling of a legislative referendum is proposed is irrelevant. If the sole rationale of the mentioned grounds for excluding [a referendum] was the elimination of unconstitutionalities that have already been established by a decision, the constitution-framers would have undoubtedly drafted the wording differently and would have precisely expressed that they were merely trying to ensure that, in referendums, voters do not adopt positions regarding the content of decisions of the Constitutional Court or judgments of the ECtHR.
 
4. The Constitutional Court has the competence to decide on the conformity of laws with the Constitution; however, this competence is intended for the application and development of the Constitution, as well as for strengthening constitutionality, legality, and the exercise of human rights and fundamental freedoms. By the nature of the matter, it cannot be concluded that an unconstitutionality only exists if it has been established beforehand by a decision of the Constitutional Court. The Constitutional Court is indeed the highest body of the judicial power in the field of the protection of constitutionality, legality, and human rights and fundamental freedoms, but it is not the only authority that applies the Constitution or ensures its application. By its decisions, the Constitutional Court communicates its positions as to the manner in which the Constitution must be interpreted and applied, draws attention to the established unconstitutionalities and illegalities or violations of human rights and fundamental freedoms, and imposes the obligation that they be eliminated. Decisions of the Constitutional Court have the effect of a general legal act,[1] meaning that they are binding on everyone. This extends to the obligation of the legislature to act in accordance therewith. However, this does not entail that they restrict the legislature in applying the Constitution. The Constitution confers on the Constitutional Court only the power to decide in a dispute that is initiated by the filing of a request or petition. Namely, for constitutional decision-making regarding the conformity of laws with the Constitution, it is essential that there exist grounds for taking action, namely the existence of a disputed relation that has to be resolved within the framework of the protection of the Constitution. Only in such a dispute is there conferred on the Constitutional Court the power to establish unconstitutionalities with finality and in an authoritative manner. Consequently, I cannot find grounds in the Constitution for the position that an unconstitutionality can only exist if such is established beforehand by a decision of the Constitutional Court.
 
5. In my opinion, from the wording of the fourth indent of the second paragraph of Article 90 of the Constitution it is unambiguously clear that in order to understand the phrase “eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality” it is irrelevant whether the unconstitutionality in question has been established beforehand by a decision of the Constitutional Court or a judgment of the ECtHR. What is important is that the legislature substantiate the existence of an unconstitutionality and the manner of its elimination; however, in the event of a dispute, it is of course the Constitutional Court that has the final say, namely within its competences and in the role of the final interpreter of the Constitution. The arguments of the historical and comparative interpretation of the previous and current regulation of the subsequent legislative referendum also cannot provide confirmation of the rationale of the grounds for excluding [a referendum] determined by the fourth indent of the second paragraph of Article 90 of the Constitution that the Constitutional Court supports in its Decision. The comparison of the role of the Constitutional Court in a procedure for the calling of a legislative referendum, as well as the assessment by which the constitution-framers substantiated that the regulation previously in force was inappropriate, with regard to which they also referred to unpredictability and a lack of clarity in exercising the right to request the calling of a legislature referendum, and to the danger that the Constitutional Court could carry out an arbitrary assessment in deciding on the question of whether unconstitutional consequences would arise due to the postponement of the entry into force of a law or its rejection in a referendum, are not arguments that would provide the fourth indent of the second paragraph of Article 90 of the Constitution a meaning in that the implementation of the decisions of the Constitutional Court or the judgments of the ECtHR is ensured. In discussions regarding the amendment of Article 90 of the Constitution, various positions were in fact expressed regarding the drafting of the content of the mentioned grounds for excluding [a referendum], also those that the Constitutional Court included in its Decision; however, only the positions of the constitution-framers are important for the Constitutional Court’s decision-making in the dispute regarding the calling of a legislative referendum. These are not positions that would explain the intention of the formulator of a new legal rule, but are positions that guided the constitution-framers towards making the decision to include in the legal order a new rule that will fulfil its purpose by its outward functioning. Of course, the objective meaning of a normative text is not always limited to a certain content; it is also possible that the interpreter determines something that was not present at the time when the normative text was drafted as the meaning of the legal rule. However, such does not hold true when the interpreter seeks the rationale for the specific placement of a new legal rule in the legal order and questions the rationale for drafting it, but does hold true in the event the interpreter questions whether a legal rule may also be applied in circumstances of modified social relations, thus giving it, by such application, a meaning that was not present at the time it was drafted.
 
6. The content of the fourth indent of the second paragraph of Article 90 of the Constitution is a part of the new constitutional regulation of the legislative referendum, therefore its true meaning can only be understood within the framework of understanding the entirety thereof. The new constitutional regulation in certain instances prohibited the calling of legislative referendums, which entails that in those cases there is no right to request the calling of a legislative referendum, nor is there a right to participate in the management of public affairs. The prohibition extends to four legislative fields. According to the reasoning written in the Draft Act of the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia, which the Constitutional Commission of the National Assembly proposed for adoption by the National Assembly,[2] the constitution-framers followed the model of comparable European regulations, which exclude the calling of a legislative referendum with regard to laws regulating matters that due to their nature are not suited to direct decision-making by voters. It explained that the state must function promptly and effectively, that a fundamental taxation and fiscal basis must be ensured for its functioning, that it is reasonable that second thoughts as regards the content of treaties be resolved prior to the procedure for ratifying the given treaty, and that decision-making in a referendum must also be limited in instances where the possible rejection of the entry into force of the law would prevent the elimination of an unconstitutional situation, which also includes the elimination of a violation of human rights and fundamental freedoms. As regards the grounds for excluding a referendum referred to in the fourth indent of the second paragraph of Article 90 of the Constitution, the constitution-framers explained that decision-making in a referendum can be limited if such is necessary in order to protect another constitutional value regarding which there already exists a violation that needs to be eliminated by a new statutory regulation, as well as if the statutory regulation is unconstitutional and the adopted law eliminates the unconstitutionality in a constitutionally consistent manner.[3] Hence, in the event there exist grounds for excluding a referendum as determined by the fourth indent of the second paragraph of Article 90 of the Constitution, the constitution-framers decided by themselves that the elimination of the unconstitutionality (or of an unconstitutional situation that arose as a result of either a violation in the field of human rights and fundamental freedoms or another violation of the Constitution) is a constitutional value that is more important than the right to request the calling of a legislative referendum, because the possible rejection of the entry into force of the law in a referendum would prevent the elimination of the unconstitutional situation. The new constitutional regulation eliminated the possibility to request the calling of a legislative referendum on any question or any subject matter regulated by law. Thereby, the possibility of voters’ direct decision-making was narrowed. Voters do not have such freedom of legislative decision-making as is enjoyed by the representative body. If there is an unconstitutionality that the law eliminates in a constitutionally consistent manner, voters cannot decide on this subject matter in a referendum. Namely, the question of whether the unconstitutionality should be eliminated or not cannot depend on the volition of voters. The purpose of legislative referendums in a constitutional democracy is also not that voters decide whether the Constitution should be applied or how it should be applied.
 
7. Under the new constitutional regulation, the Constitutional Court is still involved in deciding whether the calling of a legislative referendum is admissible. The Constitutional Court decides in a dispute between the proposer and the National Assembly on the question of whether what is at issue is a law or a subject matter regarding which a legislative referendum may not be called (the second paragraph of Section II of Article 3 of the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia). When deciding, the Constitutional Court applies the Constitution directly, and solves procedural questions by mutatis mutandis application of the Referendum and Popular Initiative Act (RPIA). During the decision-making process, first the subject matter regulated by the law regarding which the calling of a legislative referendum is proposed must be interpreted, and then the question of whether the law eliminates an unconstitutionality must be answered, and also, if the answer thereto is affirmative, whether the law eliminates such an unconstitutionality in a constitutionally consistent manner. Namely, it is only inadmissible to call a legislative referendum if the possible rejection of the law in a referendum would prevent the elimination of the unconstitutionality and thus the unconstitutional situation would persist.
 
8. The interpretation that the grounds for excluding a referendum determined by the fourth indent of the second paragraph of Article 90 of the Constitution only refer to laws eliminating an unconstitutionality that has already been established by the Constitutional Court or by the ECtHR enabled the Constitutional Court to simply disregard the arguments presented by the National Assembly in the dispute. It did not answer the questions raised that refer to the interpretation and application of the Constitution and the Convention for the Protection of Human Rights and Fundamental Freedoms, but left decision-making as regards whether the right to marry is necessarily limited to persons of different sexes only to voters. It overlooked the positions that it wrote in its Decisions No. U-I-425/06, dated 2 July 2009, and No. U-I-212/10, dated 14 March 2013[4], and, despite having already adopted the position that the factual and legal bases of marriage and registered partnerships [i.e. partnerships between a man and a woman or same-sex partnerships] are essentially equal, it left it to voters to also decide whether there is unequal treatment from the viewpoint of the Constitution. According to the legislature, the Act Amending the Marriage and Family Relations Act (MFRA-D) was adopted with the intention of eliminating differentiation based on sexual orientation, which is a personal circumstance referred to in the first paragraph of Article 14 of the Constitution. In the legislative file, there are no claims that the first paragraph of Article 3 of the Marriage and Family Relations Act (MFRA), which determines that marriage is a legally regulated partnership of a husband and a wife, is inconsistent with the Constitution, but there are claims that same-sex partners are discriminated against if the state does not also provide them the possibility to marry. In such manner, the National Assembly alleges that the MFRA-D is a law that eliminates an inequality before the law in a constitutionally consistent manner, whereas the proposer of the referendum, on the other hand, claims that there is no constitutional requirement that the positions of same-sex and opposite-sex partners be treated equally. Hence, the crux of the dispute is the question of whether there exists an unconstitutional legal gap because same-sex partners are unable to marry and enjoy the rights and obligations stemming from such relationship in the same way as opposite-sex partners. The MFRA-D does not interfere in any way with the possibility to enter into a marriage, i.e. a partnership of a husband and a wife, as it leaves this possibility untouched in all respects; the only thing it adds is the possibility of same-sex partners to also enter into a marriage. Therefore, the fact that the MFRA-D is drafted in such a manner that it modifies the definition of marriage contained in the first paragraph of Article 3 of the MFRA is utterly irrelevant.
 
Jasna Pogačar
     Judge
 
[1] See, e.g., Order of the Constitutional Court No. Up-271/98, dated 28 October 1998.
[2] See Report on the Preparation of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia, dated 29 March 2012, EPA 620-VI, p. 15.
[3] As regards the fourth indent of the second paragraph of Article 90 of the Constitution, the following text was included in the Draft Constitutional Act: 
“The proposed grounds for excluding a referendum would enable restricting decision-making in referendums in cases where the possible rejection of the entry into force of a law would prevent the elimination of an unconstitutional situation, which also includes the elimination of a violation of human rights and fundamental freedoms. Decision-making in a referendum can be limited if such is necessary in order to protect another constitutional value regarding which there already exists a violation that has to be eliminated by the new statutory regulation, as well as if the statutory regulation in force is unconstitutional, and the adopted law eliminates such unconstitutionality in a constitutionally consistent manner. Such reason for the inadmissibility of calling a referendum would only apply in the event individual provisions of the law were unconstitutional, which would be established by the Constitutional Court. The fourth indent of the second paragraph of Article 1 of the Draft Constitutional Act envisages that the new fourth indent of the second paragraph of Article 90 would read as follows: ‘on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.’”
[4] In both Decisions, the Constitutional Court stated the following: “A registered partnership is a relationship substantively similar to marriage or common-law marriage. An essential characteristic also of such partnership is the stable relationship of two persons who are close and who assist and support each other. The ethical and emotional essence of registered partnerships, which is expressed in Article 8 of the Same-Sex Civil Partnership Registration Act and in accordance with which the partners must respect, trust, and help each other, is similar to that of a partnership between a man and a woman.” 
 
U-II-1/15                               
19 October 2015
 
Dissenting Opinion of Judge Dr Jadranka Sovdat
 
I
 
1. As stated in Paragraph 32 of the reasoning, “All governing power may only be exercised within the confines of the Constitution and every authoritative decision must fall within the ambit of the constitutionally admissible possibilities.” I completely concur. This also holds true when the Constitutional Court exercises its power by deciding on the constitutionality of a decision of the National Assembly to not call a legislative referendum. In the case at issue, my view of the constitutional limits differs from the view of the majority. I could not concur with it, as in virtually all of its crucial parts I disagree with the reasons leading to the operative provisions of the Decision. The case at issue concerns a decision on the admissibility of a referendum on the amendment of the Act at issue, whose only objective is “to eliminate provisions that determine that marriage is a partnership of two persons of opposite sex, thus determining sex and sexual orientation as the personal circumstances on which the acquisition of individual rights depends,” which, according to the Constitutional Court, is inconsistent with Article 14 of the Constitution, as stated in the legislative file.[1]
 
2. I cannot concur with the interpretation advocated in the Decision as to the new constitutional regulation of the legislative referendum, in particular as regards the fourth indent of the second paragraph of Article 90 of the Constitution. In my opinion, the adopted interpretation is contrary to the fundamental rules of interpretation of a (constitutional) legal text, and at the same time includes (either explicitly or implicitly) certain constitutionally erroneous positions. The interpretation with which I do not concur is so crucial that I would only be able to vote in favour of the adopted operative provisions of the Decision if I were able to concur with the assumption regarding how, regardless of the above, the inadmissible elimination of an unconstitutionality by means of the effects such a statutory regulation produces in other legal fields in any case decisively affects the admissibility of a referendum, as is stated in Paragraph 51 of the reasoning of the Decision, or if the substantive assessment as a whole led me to the conclusion that what is at issue is not an instance such as is referred to in the fourth indent of the second paragraph of Article 90 of the Constitution. In fact, such an assessment has not even been carried out. Had one been carried out, it would have been necessary to state, inter alia, that it is constitutionally admissible to deny homosexual persons rights, including human rights, on the sole basis of a personal circumstance (such as sex, race, language, religion, etc., all of which are listed in constitutions and international documents in so-called anti-discrimination clauses), with regard to which one would need to close one’s eyes to the unconstitutional legal gaps. I can concur with neither one nor the other.
 
3. I am afraid that on the basis of the majority decision the very human dignity of homosexual persons will be negatively affected. This will be the second time within a period of a few years that, by an authorisation issued by the Constitutional Court in the form of an equally “empty” decision as the first time, the subject of decision-making in a referendum will be whether such persons may actually be fully equal in their rights as those with a different sexual orientation, or whether it suffices that within a period of time of unknown duration such equality will be taken away from them little by little. In the same manner as the first time, the subject of decision-making in the referendum will not be our rights, but we all will decide whether we should even grant them these rights that we enjoy. The subject of decision-making will not be whether such persons and the rest of us are equal in rights, because it is clear that they are not. Clearly, men and women are not equal, yet it goes without saying that, in the legal regulation, men should not be discriminated against compared to women (and vice versa, naturally) on the basis of sex as a personal circumstance. In the case at issue, it seems to go without saying that they should still (to a significant degree) be discriminated against solely on the basis of sexual orientation as a personal circumstance, or that it is the voters who should decide on whether they should be discriminated against. In the same breath, the Constitutional Court states that voters, too, are bound by the Constitution, as is the legislature. Also in the same breath, it states that homosexual persons must in fact enjoy non-discriminatory treatment, due to which the legislature must implement what the Constitutional Court has already imposed thereon by Decisions No. U-I-425/06[2] and No. U-I-212/10,[3] despite the possible rejection of the amendment of the Act in a referendum (Paragraph 53 of the reasoning). We, the Constitutional Court judges, will continue to decide, little by little, on unconstitutional legal gaps that violate their (human) rights.[4] Every serious attempt by the legislature will most probably end in the same manner as the current one, provided that the adopted Act is rejected in a referendum. The decision-making in the referendum at issue concerns a statutory regulation that does not take anything from heterosexual persons, as their legal position remains completely unchanged.[5] On the other hand, the adopted statutory regulation, which has not yet entered into force, grants homosexual persons equal rights, namely to become, as persons – as human beings – equal in their rights and protected as to the very essence of free human beings, their rights, (including human rights, which, in accordance with the Constitution, they are entitled to and which the state has the duty to protect), and the rights of the persons they are closest to.
 
4. By erroneously interpreting the fourth indent of the second paragraph of Article 90 of the Constitution, as follows from the majority Decision, the Constitutional Court set off on a path that also in the future will have to be walked. I am afraid that, sooner or later, it will be necessary to change this interpretation again, just as the Constitutional Court did, after all, by Decision No. U-II-1/12, U-II-2/12, dated 17 December 2012 (Official Gazette RS, No. 102/12, and OdlUS XIX, 39 – hereinafter referred to as Decision No. U-II-1/12), whereby, compared to previous decisions that followed the path of making its assessment stricter,[6] the Constitutional Court established to a significant degree new[7] criteria of decision-making on the constitutional admissibility of referendums in accordance with the regulation previously in force. From the travaux préparatoires for the Constitutional Act it is evident that the constitution-framers attempted to prevent, inter alia, such crucial changes in the positions of the Constitutional Court regarding the interpretation of the norms that concern the admissibility of referendums. At the same time, it is not irrelevant that in modifying the Constitution they in part proceeded precisely from the positions stated in the mentioned Decision regarding the fourth indent of the second paragraph of Article 90 of the Constitution, which will be explained in more detail below.
 
5. In my opinion, decision-making on the admissibility of the referendum at issue is not a decision on a subject that should be entirely political – i.e. on substance that could raise an issue regarding the appropriateness of the regulation, which naturally can always be subject to decision-making in a referendum, provided that it does not fall within the ambit of the second paragraph of Article 90 of the Constitution, and the Constitutional Court must not interfere therewith due to the principle of the separation of powers (the second sentence of the second paragraph of Article 3 of the Constitution). In my view, the decision at hand falls exactly within the constitutionally protected essence of anti-discriminatory treatment on the basis of a precisely determined personal circumstance included in the first paragraph of Article 14 of the Constitution that the Constitutional Court recognised, by Decisions No. U-I-425/06 and No. U-I-212/10, as one on the basis of which discrimination is prohibited.
 
6. Below, I will present in more detail my reasons for disagreeing with the majority decision, namely according to the order of the individual paragraphs of the reasoning of the Decision. 
 
II
 
The Petitioner – Proposer
 
7. According to Paragraph 38 of the reasoning, the phrase “proposer of a referendum” included in the second paragraph of Section II of the Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia[8] is an “autonomous constitutional term” that signifies both the petitioner of a referendum and the proposer of a referendum within the meaning of the Referendum and Popular Initiative Act[9]. If the proposer of a referendum is an autonomous legal term, it cannot be interpreted by means of the provisions of the RPIA, as it is independent thereof, i.e. it is autonomous. Constitutionally speaking, it cannot denote both the petitioner of a referendum and the proposer of a referendum, as there is a significant difference in quality regarding such. [In Slovene,] the second paragraph of Article 162 of the Constitution uses precisely the term “proposer” when referring to the proposers who may initiate, by a request, proceedings to review the constitutionality of a regulation before the Constitutional Court.[10] Otherwise, the Constitution states, multiple times, who has the power to propose whom or what, from which it is clear that, within the constitutional meaning, there also exist other proposers. For instance, the Government, a deputy, or the National Council may propose laws (Article 88 and the first indent of Article 97 of the Constitution), the Government may propose a war or state of emergency (Article 92 of the Constitution), the President of the Republic proposes the President of the Government (the first paragraph of Article 111 of the Constitution) and Constitutional Court judges (the first paragraph of Article 163 of the Constitution), while the Judicial Council proposes judges (Article 130 of the Constitution). Constitutionally speaking, the common point of proposers is that they are entitled to form a proposal that must be decided on by the entity or person to whom they propose something or that someone should be appointed or elected. Hence, they have the constitutional power to request appropriate decision-making after first forming their proposal. This is also crucial for the proposer of a referendum, and in this respect also the fact that the first paragraph of Article 90 of the Constitution does not mention a proposal but that a certain number of voters may require the calling of a referendum does not change this crucial content. The constitutionally determined number of voters have a constitutional right to propose/require that the entry into force of a law that the National Assembly has already adopted shall be decided on in a referendum (provided that the situation referred to in the second paragraph of Article 90 of the Constitution does not exist). Therefore, constitutionally speaking, only (at least) forty thousand voters can be the proposer(s) of a referendum. The petitioners are absolutely not the proposer(s) of a referendum, neither are they equal thereto. 
 
8. However, the above-stated does not entail that the National Assembly has acted unlawfully or even unconstitutionally by interrupting, by its decision, the procedure for collecting signatures for filing a request to call a referendum already in the phase where there only existed the petitioner of a referendum, but not yet the proposer thereof. By the nature of the matter, the constitutionally determined number of voters can only exercise the right to require a referendum in such a manner that all voters exercise it together, according to the procedure and the manner prescribed by law.[11] Such a law must envisage the rules on the basis of which the constitutional right to request the calling of a referendum will even arise. Well, the RPIA has envisaged them. It introduced the right to submit a petition addressed to voters to file a request to call a referendum. This is a precondition for the right to require a referendum to even arise, which will arise in accordance with precisely determined rules in a special procedure for collecting the signatures of voters. In accordance with the regulation in force, the statutorily determined petitioners have the right to formulate a petition, namely any voter, political party, or other association of citizens (the first paragraph of Article 16 of the RPIA). Voters are able to participate in proposing a referendum, whereas political parties or other associations of citizens are not directly able to, as the Constitution only allows a certain number of voters to request the calling of a referendum. Consequently, the proposer of a referendum cannot also denote a petitioner.
 
9. Nevertheless, from a constitutional point of view it is necessary to enable the prevention of the formation of a request to call a referendum, namely due to the reasons that the Constitutional Court already stated in Decision No. U-I-266/95, dated 20 November 1995 (Official Gazette RS, No. 69/95, and OdlUS IV, 116), when the RPIA had not yet regulated this question, which is what the National Assembly expressly draws attention to in the challenged Order. In this respect, the National Assembly refers to the mutatis mutandis application of the second paragraph of Article 21 of the RPIA, which is based on the second paragraph of Section II of UZ90, 97, 99. The National Assembly is right. If on the basis of this provision it was previously possible for the National Assembly to file a request for a review of the constitutional admissibility of a referendum already during the collection of signatures and to thus interrupt the collection of signatures, it now at this stage has, mutatis mutandis, the power to decide on whether a referendum is constitutionally inadmissible. Such justification would have sufficed. But assuming that the Constitutional Court wished to further elaborate or explain the constitutional arguments from Decision No. U-I-266/95, which formed the constitutional basis for such a statutory regulation, this is certainly welcome. However, this cannot be done by erroneously announcing that the proposer of a referendum also means the petitioner of a referendum, by stating that the benefit of the voters is at issue, and by explaining how it is not reasonable to wait for the petition to also formally become a request (Paragraph 39 of the reasoning). What is reasonable is not a constitutional question. Equally, it is not the benefit of the voters that is at issue; constitutionally speaking, what is at issue is respect for their right to the free expression of their will, which is first exercised by signing the request to call a referendum, and, secondly, by casting a vote on the day of the referendum. Since the object of their decision-making is the same, in both cases entailing decision-making on whether the adopted statutory regulation should enter into force it would be perverse to allow voters to freely express their position thereon if the National Assembly is, in advance, of the opinion that such decision-making is constitutionally inadmissible. Not much would remain of their free decision. In my opinion, this is the constitutional argument that prevails and justifies that it is admissible, even before the right arises, to decide on the constitutional admissibility of a referendum. In terms of time, the need to complete the legislative procedure as soon as possible (Paragraph 38 of the reasoning) seems completely secondary to me in this context. In the case at issue, the Constitutional Court itself has to a large degree destroyed it by the duration of its decision-making; therefore it is not most appropriate that the Constitutional Court refer thereto without a need for such. Understandably, in the instances referred to in the first indent of the second paragraph of Article 90 of the Constitution, it would have been attributed a different weight.    
 
 
III
 
The Interpretation of the Second Paragraph of Article 90 of the Constitution
 
10. The second paragraph of Article 90 of the Constitution determines, on the constitutional level, certain limitations of the right to require the calling of a referendum, or, more concisely, the right to require a referendum. As the Constitutional Court already stated in Decision No. U-II-1/12 (Paragraph 31 of the reasoning), this right is still an important constitutional right,[12] because, when implemented, a situation arises in which voters co-decide on whether a law that has already been adopted by the parliament will enter into force or not. The implementation of the right to require a referendum thus creates the right of voters to vote on a law in a referendum. When exercising this right, voters in a referendum, as determined by the Constitution, are not the direct legislator, as they cannot submit “their law” in a referendum, but are only correctors of the legislature’s decision-making through the direct expression of their will. They can either uphold or reject the decision of the parliament. In the regulation currently in force, the limitations of the right to require a referendum are envisaged in the Constitution itself, and are not entirely left to the interpretation of the phrase “unconstitutional consequences would arise.” It is clear, as Prof. Dr Grad states, that this reduces the role and importance of decision-making in a referendum in comparison with the constitutional regulation previously in force, but it would be difficult to say that this in itself is undemocratic, as the principle of democracy is exercised through both direct and indirect democracy.[13] This is logical, because a different position would deny the legitimacy of the representative democracy, and even if a referendum were limited even more, a state with a representative democracy based on free and democratic elections would be a democratic state. In truth, in Slovenia the possibilities to use a referendum and its significance are still significant in comparison with the majority of European states,[14] which, even if they are all based on the principle of popular sovereignty, are no less democratic than Slovenia due to the greater limitation of referendums.
 
11. Four indents listed in the second paragraph of Article 90 of the Constitution determine the limitations of the right to require a referendum, with regard to which constitutional theorists have already discussed whether these limitations are listed exhaustively or non-exhaustively.[15] It was not even necessary for us to address this question in the case at issue because focusing on the interpretation of one of the indents determining limitations sufficed to decide on the case. In spite of the above, the Constitutional Court added the obiter dictum position that the limitations are listed exhaustively, without studying the question in more detail or depth (Paragraph 44 of the reasoning). This is not acceptable to me. I must wonder whether the Constitutional Court would adopt[16] an equal interpretation if today it were faced with, for instance, the law on the implementation of the fiscal rule determined by the third paragraph of Article 148 of the Constitution, i.e. the implementation of the constitutional provision contained in the second paragraph of 148 of the Constitution. The great question is whether the first three indents of the second paragraph of Article 90 of the Constitution form the basis for a prohibition on holding a referendum on such a law (if they do, such basis perhaps only exists in the second indent, provided that the second paragraph is not interpreted as being exhaustive), even though the entry into force of a law certainly entails the elimination of an unconstitutionality, which in truth is directed, like every unconstitutional legal gap, towards the statutory order as such, and not towards a concrete statutory provision, which prior to that, inter alia, also served as the statutory basis for the borrowing of the state. The law on the implementation of the fiscal rule [i.e. the Fiscal Rule Act] has in fact already entered into force, therefore the question is purely hypothetical; however, the answer thereto is equally telling. For instance, an equal question could be raised as regards a law that would entail the implementation of a ratified treaty, i.e. when the question of respect for one of the fundamental principles of international law, i.e. the pacta sunt servanda principle, would be raised. The reasons for the constitutional prohibition of such a referendum are, in my opinion, much stronger (a fortiori) than the reasons for the prohibition of a referendum on a law ratifying a treaty (i.e. approving the ratification of a treaty),[17] which are expressly included in the third indent of the second paragraph of Article 90 of the Constitution. If we are to prohibit referendums as regards laws that incorporate treaties no sooner than when they enter into force, and that are concurrently the basis for the state to actually declare that it is bound by a treaty (the fifth indent of Article 107 of the Constitution), but then allow referendums on laws that entail the implementation of treaties that have already been acceded to, because, as stated, such a prohibition is not exhaustively included in the second paragraph of Article 90 of the Constitution, very little will, in my opinion, remain of the fact that the Constitutional Court is also the guardian of Article 8 of the Constitution and thus the guardian of the observance of international instruments and of the reputation of a state that is to implement the assumed international obligations. This is namely the precise end result that the position as regards the exhaustive character [of the provisions in question] – with an emphasis on how expressly, clearly, and precisely the Constitution henceforth lists the instances in which a referendum may not be called – can unfortunately lead to in passing, without there being a need for the adoption of a position thereon in order to decide on the case at issue.
 
12. The second paragraph of Article 90 of the Constitution needs constitutional interpretation as a whole and according to the individual indents. It brought “firmer support in the Constitution and clearly determined limits[18] [...] as to the decision-making” of the Constitutional Court,[19] but it did not bring decision-making on an exhaustively determined basis[20] or disrespect for the fact that the Constitutional Court has been appointed the guardian of the Constitution in order to protect its values, which can also change over longer periods of time. The Constitution is a living legal instrument and the interpretation thereof that takes this into account is an element that makes it actually possible for constitutions to live and for their text to remain in force for long periods of time despite social changes.[21]
 
 
IV
 
The Interpretation of the Fourth Indent of the Second Paragraph of Article 90 of the Constitution
 
13. The majority decision interprets the fourth indent of the second paragraph of Article 90 of the Constitution in a manner that in my opinion has no basis in the wording of the constitutional provision at issue from the viewpoint of a literal interpretation, and a teleological interpretation also does not uphold it. Hence, in accordance with this provision, a referendum may not be called “on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms” (or any other unconstitutionality). To begin with, what is of key importance is the interpretation of the words “laws eliminating an unconstitutionality,” or even more narrowly, what is “an unconstitutionality” – whether it only concerns an unconstitutionality established by a decision of the Constitutional Court or also an unconstitutionality established by the National Assembly itself, which then adopts a law with a view to eliminating it. The majority decision states that by writing the word “unconstitutionality,” the constitution-framers in fact only intended to write and indeed wrote the following: “an unconstitutionality established by a decision of the Constitutional Court” (Paragraph 42 of the reasoning). In my opinion, they neither intended to write that nor wrote that. In fact, the majority decision narrows the literal interpretation. The mere expression “unconstitutionality” certainly encompasses both types of unconstitutionalities, namely both those established by the Constitutional Court and those established by the legislature. While on the one hand the majority decision narrows the literal interpretation of the constitutional provision, it adds, on the other, also the elimination of violations of human rights established by a judgment of the European Court of Human Rights (hereinafter referred to as the ECtHR). This is something that the literal interpretation of the term “unconstitutionality” actually does not directly allow. Such a meaning can only be derived by means of a further interpretation of the text – an interpretation that is actually not included in the Decision at issue.
 
14. First of all, I will explain what I intended to say regarding the fact that also laws are included by which, on the basis of ECtHR judgments, a regulation is established that enables the elimination of the consequences of already established violations (in pilot judgments), and that above all shall in the future ensure the prevention of violations of a human right established by the ECtHR (which applies at least[22] to all ECtHR judgments in cases against Slovenia by which a violation is established). This understandably applies in instances where the reason for the established violation of a human right lies in the statutory norm itself and not merely the inappropriate interpretation of courts that resulted in the violation of a human right. From a literal point of view, the Decision thereby certainly adds something significant in comparison to the constitutional text – in fact, the constitutional text does not mention this expressly. Personally, I have no substantive reservations regarding achieving the same result by an appropriate interpretation of the constitutional text. It is, however, unusual that the Decision does not contain such interpretation, given the emphasised statement that the instances in which a referendum may not be called are listed exhaustively. Why is it that, in my opinion, the second paragraph of Article 90 of the Constitution nevertheless also includes the implementation of the ECtHR judgments by which the state is, inter alia, found guilty of violating a human right or fundamental freedom and the violation already occurs on the legislative level? It is because the Constitution requires the conformity of laws with international instruments binding on Slovenia (Article 8 of the Constitution) and gives the Constitutional Court the competence to supervise respect therefor in legislating (the second indent of the first paragraph of Article 160 of the Constitution), due to which the second paragraph of Article 22 of the Constitutional Court Act (Official Gazette RS, No. 64/07 – official consolidated text and 109/12 – CCA) stipulates that a review of the constitutionality and legality of laws also extends to a review of the conformity thereof with international instruments. Furthermore, additional reasons are clear from the already-presented arguments regarding the exhaustiveness as well as the content of further arguments as regards the fourth indent of the second paragraph of Article 90 of the Constitution. The essence thereof is namely the substantive elimination of violations of human rights or fundamental freedoms, with regard to which it is irrelevant whether the rights or freedoms are regulated in the Constitution or in international documents, as also all such rights or freedoms regulated in international instruments are constitutionally protected (by the principle of the highest protection of human rights and fundamental freedoms determined by the fifth paragraph of Article 15 of the Constitution). This is all the more true since by such international instruments Slovenia also concurrently subjected itself to the jurisdiction of the international court and bound itself to implement its judgments against the state.
 
15. I will now return to the interpretation of the term “unconstitutionality.” The literal interpretation of the text undoubtedly encompasses all unconstitutionalities. The literal interpretation needs to be tested also by means of other types of interpretation, which in my opinion – contrary to the majority opinion – confirm and not narrow it. This interpretation is confirmed by the teleological interpretation of this provision. Not only did the constitution-framers expressly voice such intention when amending the Constitution two years ago – which is a pretty short period of time, due to which, in my opinion, the historical-comparative interpretation that the Decision refers to in Paragraph 43 cannot lead to a different result – but also such intention appears, to me, to be constitutionally logical.
 
16. From the travaux préparatoires of the Constitutional Act it can first be discerned what the constitution-framers had in mind. In the working draft of the Draft Constitutional Act (6 March 2013), the wording of the fourth indent of the second paragraph of Article 90 of the Constitution was explained by the following text: “The proposed grounds for excluding a referendum would enable the restriction of decision-making in referendums in cases where the possible rejection of the entry into force of a law would prevent the elimination of an unconstitutional situation, which also includes the elimination of a violation of human rights and fundamental freedoms. Decision-making in a referendum can be limited if such is necessary in order to protect another constitutional value regarding which there already exists a violation that has to be eliminated by the new statutory regulation, as well as if the statutory regulation in force is unconstitutional, and the adopted law eliminates such unconstitutionality in a constitutionally consistent manner. Such grounds for the inadmissibility of the calling of a referendum would apply, in particular, in the event individual provisions of the law were unconstitutional, as established by the Constitutional Court.”[23] This proposal was considered at the 7th session of the Constitutional Commission, where one of the members of the Expert Group, namely Prof. Dr Janez Pogorelec, opined that the mentioned provision should be understood in the sense that there has to exist a prior decision of the Constitutional Court, since otherwise “a new (inappropriate) institute of the prior review of constitutionality would arise, which the Constitutional Court would have to carry out under the pressure of deciding on the admissibility of a referendum and the short time-limits connected therewith.[24] However, the members of the Constitutional Commission apparently did not concur. The entire working draft of the Draft Constitutional Act was namely adopted by a two-thirds majority of all members (18 for, 0 against),[25] and then they learned of the reasoning of the constitutional act prepared by the Expert Group and had no remarks with respect to the prepared text.[26] Subsequently, they eliminated the inconsistency of the text as regards the adopted amendment to Article 1 and included the emphases from the discussion, with regard to which the entire text of the reasoning of the Draft Constitutional Act is quoted below.[27] The part of the text from the reasoning of the working draft that I quoted remained completely the same in the reasoning of the Draft Constitutional Act.[28] This text refers to the necessary limitation of decision-making in a referendum 1) if such is necessary in order to protect another constitutional value regarding which there already exists a violation that has to be eliminated by the new statutory regulation, as well as 2) if the statutory regulation in force is unconstitutional, and the adopted law eliminates such unconstitutionality in a constitutionally consistent manner. I understand the first part as an unconstitutionality that is already established by a decision of the Constitutional Court,[29] and the second part as an unconstitutionality that the National Assembly establishes by itself and also eliminates by law.[30] Also the continuation of the text, in accordance with which the instances concerned are in particular those in which an unconstitutionality has been established beforehand by a decision of the Constitutional Court, confirms that such an understanding is correct. Nevertheless, the majority decision states that the instances concerned are exclusively those in which there exists a prior decision of the Constitutional Court.
 
17. Even if the Constitutional Court does not limit [the subject of its assessment] to merely the purpose of this provision as expressed by the constitution-framers in the revision of the Constitution, which is not so distant in time, which is what the travaux préparatoires undoubtedly attest to (contrary to what is stated in Paragraph 50 of the reasoning of the Decision), and ask itself what the general purpose of such a constitutional provision is – i.e. why the purpose, in the objective sense[31], is to eliminate an unconstitutionality as such, irrespective of whether it has already been established by a decision of the Constitutional Court – we arrive at the same result. It is true that also the fourth indent is a component part of the provisions of the second paragraph of Article 90 of the Constitution, which limit the constitutional right to request the calling of a referendum. It is also true that limitations of rights must be interpreted restrictively, which would perhaps even dictate a narrowing of the literal meaning of unconstitutionality. However, here it is impossible to overlook why this limitation of a constitutional right exists. It is due to the necessary protection of other constitutional values, with regard to which we are dealing with human rights and fundamental freedoms on the other side. The limitation of this constitutional right is determined due to other rights that are equally protected by the Constitution and which by their legal nature are human rights or fundamental freedoms. As regards respect therefor, particularly strict principles apply, as determined by Article 15 of the Constitution. Limitations thereof are, inter alia, only admissible if the principle of proportionality is respected, which means that a human right (which is not absolute) can only give way to another right to the degree where the limitation of this right can still be considered proportionate. In the hierarchy of constitutional values, human rights and fundamental freedoms certainly occupy the highest position. Human beings and the dignity and freedom thereof are namely the foundation of a democratic state (Article 1 of the Constitution and appropriate constitutional provisions on human rights, including Article 34 of the Constitution). The Constitution recognises human rights and fundamental freedoms that the state must protect (the first paragraph of Article 5 of the Constitution). The purpose of the fourth indent of the second paragraph of Article 90 of the Constitution is to ensure the protection thereof. The decision regarding whether they have to be protected when they are violated is not left to the free assessment of the legislature and is equally not left to the free will of voters in a referendum. What is at issue is the freedom of neither the former nor the latter, but the constitutional duty to protect human rights and fundamental freedoms. If the legislature does not protect them, it is up to the Constitutional Court to ensure such by carrying out its role as the guardian of the Constitution. Therefore, this must also hold true in relation to voters, as, in accordance with the Constitution, by voting in a referendum they are given the freedom to decide, which is equivalent to legislative freedom. However, as regards the question of whether it is necessary to ensure the elimination of disrespect for or violations of human rights or fundamental freedoms, voters cannot have the freedom to decide, as the Constitution requires that such has to be ensured.[32] By the fourth indent of the second paragraph of Article 90 of the Constitution, the constitution-framers themselves carried out an assessment of the proportionality between the constitutional values at issue – between the constitutional right to request the calling of a referendum, on one hand, and human rights and fundamental freedoms, on the other, when they are violated.
 
18. In this respect, it certainly cannot be the purpose of such a provision to differentiate between human rights and fundamental freedoms and to establish the inequality thereof. Inequality in the sense that the immediate protection thereof would only need to be ensured when such violations have already been established by a decision of the Constitutional Court, while in instances where such violations equally exist but have not yet been considered by the Constitutional Court, one could indefinitely carry out referendums provided that in the period between such referendums the Constitutional Court has not adopted a decision thereon. Even if we close our eyes to the undoubtedly expressed intention of the constitution-framers during the revision of the Constitution, which occurred not long ago, we cannot do so with respect to the purpose of such a constitutional provision, which prohibits referendums regarding laws that eliminate violations (i.e. unconstitutionalities in the field) of human rights or fundamental freedoms, but we must look at it objectively. Hence, the fourth indent of the second paragraph of Article 90 of the Constitution cannot be interpreted in favorem of the right to require a referendum but must be interpreted in favorem of the violated human rights, as a consequence of which such violations must be eliminated.[33] The Constitution provides that a referendum is not admissible in such instances.
 
19. In addition to the above, by limiting unconstitutionalities to those established by a decision of the Constitutional Court, the legislature is put in an unusual position compared to the Constitutional Court. Within the system of state power, the Constitutional Court and the legislature are equal, which has already been stressed.[34] The legislature is the first authority that has to ensure the constitutionality of the statutory regulation, while the Constitutional Court is the authority that is called upon to set constitutional limits and in this respect it must have, in the event of a dispute between the addressees of statutory norms and the legislature on the constitutionality of a statutory regulation, the final say, which the legislature must observe. The principle of the separation of powers is thereby implemented. However, in this principle and in relation thereto there is no basis to deny the legislature the possibility to ensure by itself the observance of human rights and fundamental freedoms without the Constitutional Court binding it to do so by a decision. These constitutional values must namely be constitutionally equally protected, regardless of whether the legislature acts in such a manner following or prior to a decision of the Constitutional Court. In any case, it is the Constitutional Court that will have the final say on whether such values were truly jeopardised and whether the legislature eliminated the unconstitutionality, except that in such an instance this would happen within the framework of the review of the constitutional admissibility of holding a legislative referendum. It is clear that such an assessment as regards the limiting reason that is at issue is always carried out under the presumption that the law will be rejected in the referendum. Were this not so, it would be impossible to prohibit it for this reason; the reason would become irrelevant, and the right to require a referendum would become absolute in this respect. 
 
20. Hence, according to the majority decision, human rights will be protected once the Constitutional Court adopts a decision, because a referendum on a law eliminating an unconstitutionality will be inadmissible. If there exists a completely equivalent unconstitutionality and the Constitutional Court refuses to review it because it has insufficient time (in proceedings for a review of the constitutional admissibility of the continuation of such an unconstitutionality), it could happen that a law would be rejected in a referendum and human rights would not be respected for still quite some time, i.e. until an appropriate decision of the Constitutional Court is adopted. Hence, there exist first-class violations of human rights, i.e. those that have already been established by the Constitutional Court, and second-class violations of human rights, i.e. those that have not yet been established by the Constitutional Court. In my opinion, that is not the way it should be. I posit that all violations of human rights are equal in this respect – they must be eliminated as soon as possible if they have already arisen, because such is required by the Constitution. Not because of the Constitutional Court or the legislature, but because of the people who enjoy these human rights in accordance with the Constitution, which the legislature failed to ensure them. In this respect, it seems to me that all human rights and fundamental freedoms need equal constitutional protection, and the Constitution imposes an equal duty to respect them (the first paragraph of Article 15 of the Constitution). Hence, it cannot be claimed that the fourth indent of the second paragraph of Article 90 of the Constitution does not take that into account. It is equally not possible to claim that the Constitution exonerates the legislature from the duty to establish an unconstitutionality by itself and to eliminate it in order to protect human rights, without it being admissible, as a rule, to hold a referendum on the legislature’s decision, which can nullify this constitutional duty of the legislature.
       
21. In this respect, I can actually concur with the majority that even if in the fourth indent of the second paragraph of Article 90 of the Constitution the word “established” was added (before “unconstitutionality”), this would not by any means affect the meaning of the text. An established unconstitutionality could still be either one established by the Constitutional Court or one that first has to be established by the National Assembly in order for it to adopt a law seeking to eliminate it, regarding which a referendum is inadmissible. In both cases, an unconstitutionality must first be established, which is merely the basis for the adoption of the law eliminating it.
 
22. Teleological interpretation thus entirely confirms the literal interpretation that the Constitution extends to both: an unconstitutionality established by a decision of the Constitutional Court and an unconstitutionality established by the legislature itself that it has to – as also stated by the majority decision – eliminate, without waiting for a decision of the Constitutional Court, since this is a constitutional duty of the legislature. As regards laws, the legislature is actually the first who is called upon to observe the Constitution, while the Constitutional Court only has the final say – both in an ex post review of the constitutionality of laws and in an ex ante review of the constitutional admissibility of a legislative referendum – as to whether the legislature in fact observed it.
 
23. Hence, in my opinion, the Constitution extends to both of these cases. However, depending on which case the Constitutional Court is dealing with, the difference appears in the procedure for the assessment of the admissibility of a referendum itself. If the Constitutional Court is dealing with a prior decision of the Constitutional Court and there is a legislative response thereto, this will be an already-established fact in proceedings for the review of the constitutionality of the decision of the National Assembly. Decisions of the Constitutional Court on the unconstitutionality of laws have erga omnes effect and are also binding on the Constitutional Court itself. The fact that the Constitutional Court perhaps determined the manner of execution of its decision, and thereby temporarily regulated an individual issue until the legislature responds, is irrelevant in this context. In such case, a referendum against the adopted law would in fact be a referendum against a decision of the Constitutional Court. Even if the legislature chose a different statutory regulation than that determined by the Constitutional Court as to the manner of execution in order to eliminate the unconstitutionality.[35] The condition determined by the fourth indent of the second paragraph of Article 90 of the Constitution, however, states that the unconstitutionality must be eliminated by the adopted law. If there is a case where the legislature establishes an unconstitutionality by itself, the burden of allegation and proof that this is an unconstitutionality will be on the legislature,[36] while the proposer (petitioner) of the referendum will have to challenge that before the Constitutional Court. In this respect, I fully agree with the excellent analysis formulated by Prof. Dr Zagorc and Assist. Prof. Dr Štajnpihler,[37] who also clearly state that in such case, the Constitutional Court must preliminarily answer the question of whether what is at issue is an alleged unconstitutionality.[38]
 
24. Therefore, the Constitutional Court will in any event be the authority that will have the final say as to whether an unconstitutionality is at issue. It will again be put in the role conferred on it in a constitutional democracy in relation to the legislature and the democratic majority. The only exception is that in such a case a decision on a preliminary question will be at issue, as my respected colleagues state, because the latter will be reflected in the decision on the admissibility of a referendum, and not in a true (fully carried out) a priori assessment of the constitutionality of a law that in the end is carried out with authoritative effect (the prohibition of an unconstitutional law entering into force). The essence of both an ex ante and ex post review of the constitutionality of laws is not in the type of effect they create (e.g. the ex ante prohibition of the entry into force of a law, the ex post abrogation of the law) in the legal order, but in the fact that it is the Constitutional Court that has the last say as regards the constitutionality of a law the legislature adopted. Therefore, for the purpose of this procedure, one can speak of the a priori review of the constitutionality of a law within the procedure [for deciding] on the admissibility of a referendum.
 
25. It is worth devoting a bit more attention to the mentioned argument of Prof. Dr Pogorelec on the inappropriateness of an a priori review of the constitutionality of laws and on the inappropriateness of such decision-making on the constitutionality of a law as a preliminary question in these proceedings. The a priori review of the constitutionality of a law is, in my opinion, not inappropriate in these cases, not even if there is a 30-day non-mandatory time limit for the Constitutional Court to decide the case. Rather the opposite. A number of constitutional courts, the most renowned of which is the French Constitutional Court (Conseil constitutionnel), carry out a full a priori review as the standard review of the constitutionality of laws. The regulation thereof was not modified by the last constitutional amendment, despite the introduction of the a posteriori review of the constitutionality of laws. The Conseil constitutionnel must carry it out within 30 days[39] in each individual case separately. From the viewpoint of equality before the law and legal certainty, the a priori review of the constitutionality of laws is even given priority over an ex posteriori judicial review, because it prevents the entry into force of an unconstitutional law. In Slovenia, the a priori review of constitutionality is constitutionally determined within the framework of the constitutionality of treaties,[40] and the law introduces such on the basis of the eleventh indent of the first paragraph of Article 160 of the Constitution. With regard to the question of why this type of constitutional review should be allowed precisely when deciding on the constitutional admissibility of legislative referendums, I think it is right to draw attention to the concurring opinion of Prof. Dr Boštjan M. Zupančič to Decision No. U-I-266/95. Many years later, the Venice Commission adopted the Code of Good Practice on Referendums[41] and expressly recommended therein that a review of the procedural and substantive validity of texts submitted to a referendum be carried out prior to the voting, with regard to which the national legislation should determine whether such review is obligatory or facultative.[42]
 
26. Why should the constitutionality of a law be reviewed in advance, and not subsequently? The first reason is connected to the high constitutional protection of human rights (and other constitutional values), which in this case can be ensured precisely in such manner. The second reason is connected to the further content of the fourth indent of the second paragraph of Article 90 of the Constitution and refers to the “elimination” of an unconstitutionality. Also from this perspective this is nothing but the implementation of an a priori review of the constitutionality of the law that is to be submitted to decision-making in a referendum. The a priori review of the constitutionality is hence in any case inherently embedded in this provision of the Constitution and thus within the competence of the Constitutional Court. The third and most important reason is the already mentioned respect for the free expression of voters’ will. What would remain of their freedom if they were shown in advance that they may indeed vote in favour of the law before them but that they can count on the fact that the Constitutional Court will subsequently abrogate it for being unconstitutional? Under such conditions, can one still speak of freely expressed will? [I think not,] therefore, I cannot concur with the logic of Paragraph 49 of the reasoning of the Decision, in accordance with which there are no obstacles to allegedly unconstitutional laws appearing in a referendum because if voters do not reject them and they therefore enter into force, they might in any case be abrogated by the Constitutional Court. Naturally, this can theoretically happen. It can always happen when the review of the constitutional admissibility of a referendum has not even been requested (and when the National Assembly has not beforehand adopted a decision to reject the calling of a referendum). However, if it is requested and the substance thereof is directed towards precisely such an unconstitutionality, then this is not how it should be. When called (in accordance with rules) to perform its constitutional role as the guardian of the Constitution and in this framework, of respect for human rights and fundamental freedoms in particular, the Constitutional Court has the duty to perform it, albeit within the framework of the a priori review of the constitutionality of a law. 
 
27. According to the position of the majority, also in this respect there is an unequal treatment of human rights and fundamental freedoms. In order for the Constitutional Court to be able to establish whether the adopted law eliminates an unconstitutionality, it must in any case carry out (an a priori) review of the constitutionality of the adopted law[43] – only if the latter is in conformity with the Constitution can we say that it eliminates[44] an unconstitutionality. The Constitutional Court must carry out this review within the framework of decision-making on the admissibility of a referendum. Also in accordance with the majority decision, it will have to carry out this review when the unconstitutionality is established beforehand by a decision of the Constitutional Court. Provided that the legislature will eliminate an unconstitutionality that it established itself, then even if the unconstitutionality is constitutionally substantiated and presented to us as very obvious, first a referendum will be carried out and then, once the law is rejected, only in regular constitutional review proceedings will an unconstitutionality possibly be established. Only after the legislature once again enacts a regulation that is equivalent to the one rejected in a referendum will it be possible for the unconstitutionality to be eliminated; the voters will no longer be allowed to decide whether it must be eliminated. In the interim, human rights and fundamental freedoms will not only be treated unequally, but they will also remain unprotected, which is constitutionally inadmissible. We, the Constitutional Court judges, will close our eyes thereto. In my opinion, this contradicts the purpose of the constitutional provision that we are interpreting. 
 
28. Since I opine that the fourth indent of the second paragraph of Article 90 of the Constitution must be interpreted in such a manner that it also refers to instances wherein the legislature establishes the existence of an unconstitutionality by itself and adopts a law to eliminate it, following such establishment the Constitutional Court should proceed with a substantive review in which it would review the constitutionality of the Order of the National Assembly by which it rejected the calling of the legislative referendum. The two Decisions of the Constitutional Court in which it has already established the inadmissible discrimination of persons on grounds of sexual orientation are extra in this context; however, even with respect thereto I cannot concur with the argumentation of the Constitutional Court.
 
 
V
 
The Constitutionality of the Order of the National Assembly
 
29. This brings us to Paragraphs 51, 52, and 53 of the reasoning of the Decision, which are equally unacceptable to me as almost all the paragraphs before them. In truth, the majority decision in these paragraphs avoided a substantive review of the constitutionality of the challenged Order. But it reproaches the legislature for adopting a statutory regulation by which it “indirectly, by means of the effects such statutory regulation produces in other legal fields, eliminates an unconstitutionality” (thus, nevertheless, it can even eliminate an unconstitutionality?), with regard to which it “amends the regulation regarding issues that are not directly connected with the established unconstitutionality,” due to which, as stated, this does not entail the elimination of an unconstitutionality within the meaning of the [relevant] constitutional provision. This reproach is connected not only with the cases in which the Constitutional Court has already established unconstitutionalities, but obviously in particular with the finding at the end of Paragraph 52 of the reasoning, in accordance with which the Constitutional Court has thus far not established that the definition of marriage in force and the conditions for entering into such are unconstitutional. In this respect, it is stated (Paragraph 51 of the reasoning) that the National Assembly as the legislature may in fact autonomously choose, within the framework of its powers, how and by which law it will eliminate an unconstitutionality (which has been established by either the Constitutional Court or the ECtHR). It is stated that it is an expression of the National Assembly’s freedom if it does so in an indirect manner by amending other regulations that beforehand have not been established as unconstitutional, but that also the people have the same amount of freedom as the National Assembly, due to which such elimination of an unconstitutionality cannot at all constitute grounds for not allowing a referendum. This interpretation of the term “elimination” of an unconstitutionality is not acceptable to me.
 
30. It is hence not important whether the legislature in fact eliminated an unconstitutionality due to a violation of human rights. As if this was not the constitutional essence of the fourth indent of the second paragraph of Article 90 of the Constitution. The decisive element is that it “dared” to do so by amending a law regarding which an unconstitutionality has thus far not been established by a decision of the Constitutional Court. Not only when the regulation of unconstitutional legal gaps is concerned, as in the case at issue, but also otherwise, constitutionally speaking, it is a matter of the legislative freedom (i.e. the assessment of appropriateness) of the legislature to decide in which law it will regulate matters that it has to regulate. If the only question was whether something should be regulated in one law or another, there could also be a referendum held on this matter, although in fact it would be in itself improper to decide on such matter in a referendum, which should be intended for making important social decisions and not for deciding in which law the legislature should regulate what matter. The essence does not lie in this – but in the fact that there exists a substantive unconstitutionality and that the legislature must eliminate the unconstitutionality substantively. As long as the proposer/petitioner of the referendum does not prove that the legislature misused the elimination of an unconstitutionality to avoid a referendum – because this burden of allegation and proof falls thereon and not on the National Assembly – or does not prove that, contrary to the allegations of the National Assembly, the adopted law is unconstitutional, the National Assembly cannot be reproached for eliminating an unconstitutionality in another law. In the case at issue, the legislature also expressly substantiated why it eliminated the unconstitutionalities in precisely such manner. Neither the legislature nor voters are free as regards the obligation to eliminate unconstitutionalities, as I have already mentioned.[45]
 
31. Furthermore, it is not true that in the case at issue the regulations are not directly connected. The National Assembly firstly explained how it understood the constitutional reasons by which the Constitutional Court substantiated the unconstitutionalities in Decisions Nos. U-I-425/06 and U-I-212/10, namely that as regards both homosexual and heterosexual partners, “the essential characteristic of [their] partnerships is the stable connection of two persons who are close to, help, and support each other,” and that [both types of partnerships] “concern the substantively equal factual situation in which two persons are connected as a couple, and their (relatively lasting) relationship is defined by their emotional, moral, spiritual, and sexual attachment on their shared life path.” I presuppose that this argumentation was meant seriously and that therefrom follows the prohibition of discrimination on grounds of a personal circumstance – in this case sexual orientation – also in all other comparable cases. Many years prior to that, the Court of Appeal for Ontario applied completely the same argument in favour of the idea that also homosexual persons should be allowed to marry.[46] It made a direct connection with the dignity of persons in homosexual relations. The crux of the issue – the right to marry and all the rights that individuals are granted in numerous legal fields because they are married – is that marriage is a legally protected position.  
 
32. If one takes a closer look at the unconstitutionalities that figure in the challenged Order of the National Assembly, together with the substantiation of what kind of unconstitutionalities they are, one can quickly ascertain that all these rights are directly connected precisely with the position of a spouse (or a partner in a common-law marriage, to avoid reiterating it below). They namely belong to the other spouse precisely because he or she is a spouse and because what the Constitutional Court stated in its mentioned decisions is characteristic of relations between spouses. In this respect, not recognising some rights as also belonging to homosexual persons inherently also affects the children who live with them and who have to be particularly protected. This also concerns rights that are constitutionally protected as human rights, such as the right to health care, the unconstitutionality regarding which is particularly substantiated by the National Assembly. Even if not all rights are constitutionally protected as such and they are merely statutory rights, in the Republic of Slovenia they are equally constitutionally protected from inadmissible discrimination on grounds of sexual orientation in accordance with the principle of the highest protection of human rights determined by the fifth paragraph of Article 15 of the Constitution, which is also what the National Assembly draws attention to in the challenged Order. Namely, the Republic of Slovenia has ratified Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms,[47] which determines, in Article 1 thereof, the prohibition of discrimination on the basis of a personal circumstance as an independent Convention right[48] also in cases where “merely” statutory rights are concerned.[49] It is true, however, that only 18 states have ratified this Protocol thus far, and only eight of them are EU Member States. Among them are Finland, Luxembourg, the Netherlands, and Spain, which have already enacted homosexual marriage, while Slovenia is in the company of Croatia, Cyprus, and Romania, which have not yet enacted it. Other EU Member States have not yet ratified this Protocol. In this respect, the situation in Slovenia is different than the situation in, e.g., Austria, Germany, and Italy.    
 
33. Since all derived rights are directly connected to the question of whether a person is a spouse (or in an equivalent position), it is in my opinion not possible to speak in this context of the reflexive effects of the elimination of an unconstitutionality. It is not true, as stated in Paragraph 52 of the reasoning, that the legislature did not directly eliminate an already established unconstitutionality but regulated something other than what was imposed thereon by Decision No. U-I-425/06. By that Decision, the Constitutional Court imposed on the National Assembly precisely the obligation to eliminate discrimination on grounds on sexual orientation in a particular field. However, the legislature did not eliminate only this unconstitutionality, but (in view of the statements in the challenged Order) also other unconstitutionalities. So, does this mean that if the legislature had only eliminated the unconstitutionality that the Constitutional Court has already established the referendum would not be admissible, but because it eliminated a range of other unconstitutionalities the referendum is admissible? And, in passing, the Constitutional Court shakes its finger at the legislature to remind it to eliminate the unconstitutionality that the Constitutional Court has already established. It is logical that the National Assembly will eliminate the unconstitutionalities precisely by allowing also these [homosexual] persons to marry, while marriage is protected as a human right by the first and second paragraphs of Article 53 of the Constitution. Precisely the fact that such law also eliminates unconstitutionalities claimed and substantiated by the National Assembly indicates that the matters are directly connected to each other. Were this not the case, it would also have been impossible for the adopted law to eliminate the unconstitutionality. 
 
34. In my view, a regulation whereby two homosexuals are allowed to marry cannot be deemed unconstitutional. If this adopted law is not unconstitutional, then it eliminates an unconstitutionality within the meaning of the fourth indent of the second paragraph of Article 90 of the Constitution. Namely, the Constitution does not prescribe that only a man and a woman can marry. In view of the fact that Slovenia ratified Protocol No. 12 to the ECHR, and the second paragraph of Article 53 of the Constitution leaves the regulation of marriage to statutory regulation, stricter criteria apply to Slovenia than to other states that have not bound themselves to observe this international instrument, although a number of them have already enacted such marriage. Furthermore, the legislature, to whom the Constitution leaves the freedom to regulate this human right with a statutory reservation, must also ensure that it observes the first paragraph of Article 14 of the Constitution when legislating. That article prohibits discrimination on grounds of sexual orientation.
 
35. As a result of the interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution, which does not appear constitutionally convincing to me, the Decision in truth avoids serious constitutional consideration of the constitutionality of the challenged Order of the National Assembly. Therefore, I will stop at this point without providing an in-depth analysis. What is now apparent to me, on the basis of what I have stated above and in the absence of arguments that would convince me otherwise, definitely prevents me from concurring with the operative provisions of the Decision.
 
 
Dr Jadranka Sovdat
Judge
 
                         
 

[1] Draft Act Amending the Marriage and Family Relations Act, EPA 257-VII, dated 15 December 2014, p. 4.
[2] Decision of the Constitutional Court, dated 2 July 2009 (Official Gazette RS, No. 55/09, and OdlUS XVIII, 29).
[3] Decision of the Constitutional Court, dated 14 March 2013 (Official Gazette RS, No. 31/13).
[4] We have been deciding on one such legal gap for almost two years, while in the first such case it took the Court more than two and a half years to decide and in the second almost two and a half years. Case No. U-I-255/13 is unresolved; by a request, the Administrative Court (all requests by courts are considered with absolute priority) has challenged Article 6 of the Same-Sex Civil Partnership Registration Act (Official Gazette RS, No. 65/05 – hereinafter referred to as the SSCPRA), as it does not allow the possibility to conclude a partnership outside of official premises, whereas spouses[‑to‑be] have this possibility, which is allegedly discriminatory.
[5] Namely, my situation cannot be different because due to the prohibition of discrimination on grounds of personal circumstances also other people are recognised equal rights; and also my situation is in no way devalued, as it does not change in any way. In fact, the Constitution and the law still protect it exactly to the same degree as hitherto. Cf. Judgment of the Constitutional Court of Portugal No. 121/2010, dated 8 April 2011.
[6] We have put ever new obstacles before the legislature, which is what I drew attention to in my dissenting separate opinion to Decision No. U-II-2/11, dated 19 April 2011 (accessible on the website of the Constitutional Court).
[7] It would probably be more appropriate to say that to a significant extent we returned to the starting points that were essentially already established by Decision of the Constitutional Court No. U-I-47/94, dated 19 January 1995 (Official Gazette RS, No. 13/95, and OdlUS IV, 4).
[8] Official Gazette RS, No. 47/13 – hereinafter referred to as the UZ90, 97, 99.
[9] Official Gazette RS, No. 26/07 – official consolidated text – hereinafter referred to as the RPIA.
[10] But the Constitution already determines the proposers of the review of the constitutionality of treaties in the second paragraph of Article 160 and courts as the proposer in Article 156, although in the latter provision it does not expressly speak of the proposer, but uses the phrasing from the general provision of the second paragraph of Article 162 of the Constitution – i.e. [who may] initiate proceedings before the Constitutional Court.
[11] For more on this subject, see J. Sovdat, Sodno varstvo referenduma [Judicial Protection of the Referendum], Pravnik, Nos. 9–10 (2013), p. 627.
[12] Since Decision No. U-II-1/11, dated 10 March 2011 (Official Gazette RS, No. 20/11), the Constitutional Court has not spoken of the right to require a referendum as a human right but instead as a constitutional right, with regard to which it has to be taken into consideration that not all constitutional rights (also, e.g., the constitutional right to local self-government) are human rights; see also Decisions No. U-II-3/11, dated 8 December 2011 (Official Gazette RS, No. 109/11) and No. U-II-1/12. I myself raised the issue of the characterisation of this right as a human right already in my concurring opinion to Decision No. U-II-1/10, dated 10 June 2010 (accessible on the website of the Constitutional Court); I opine that the right to require a referendum is a constitutional right and not a human right; for more details on the reasons therefor, see J. Sovdat, op. cit., pp. 630–633.
[13] F. Grad, Ustavna sprememba, ustavna načela in ustavna razmerja [Constitutional Amendments, Constitutional Principles, and Constitutional Relations], Javna uprava, No. 1–2 (2013), p. 31; see also pp. 23–24.
[14] Ibidem, p. 23.
[15] Prof. Dr Kaučič, Head of the Expert Group on Constitutional Amendments Regarding Referendums, opines that the provision does not prevent the Constitutional Court from reviewing and rejecting the calling of a referendum also in some other cases; see I. Kaučič, Zavrnitveni zakonodajni referendum [The Rejective Legislative Referendum], Javna uprava, Nos. 1–2 (2013), p. 44. See also I. Kaučič, Ustavnosodna presoja zakonodajnega referenduma po novem [The Constitutional Review of the Legislative Referendum under the New Regulation], Podjetje in delo, Nos. 6–7 (2015), pp. 1352–1354. I was also pondering this along the same lines; see J. Sovdat, op. cit., pp. 628–629. On the contrary, Prof. Dr Zagorc and Asst. Prof. Dr Štajnpihler opine that the limitations are exhaustively listed; see S. Zagorc, T. Štajnpihler, O ustavni spremembi: pot do odločitve o (ne)dopustnosti razpisa referenduma [Regarding the Constitutional Amendment: The Path to the Decision that It Is (In)admissible to Call a Referendum], Pravna praksa, No. 14 (2015), Appendix, p. III.  
[16] In particular considering the position of the Constitutional Court in Decision No. U‑II-1/12.
[17] For more on this, see J. Sovdat, op. cit., pp. 629–630. 
[18] Emphases in bold text added by J. S.
[19] The Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia, Expert Group for the Legislative Referendum, working draft dated 6 March 2013, p. 7. The working draft was considered at the Constitutional Commission’s 7th session on 21 March 2013; see the Report on the Preparation of the Draft Constitutional Act No. 001-02/12-16, dated 29 March 2013 (in fact, the date 29 March 2012 is indicated in the document, however this is a manifest mistake since the report is from the session held on 21 March 2013 – hereinafter referred to as the Report on the Preparation of the Draft Constitutional Act), p. 5.
[20] The reasoning of the Draft Constitutional Act speaks of the express, but concurrently “exemplificative” determination of laws regarding which a referendum would not be admissible, which is allegedly a more appropriate regulation than the current one, however, bearing in mind that these terms on the constitutional level are open as to their meaning and interpretation and that allegedly they can never be fully and in advance exhaustively defined already on the literal level. See Report on the Preparation of the Draft Constitutional Act, p. 14. Naturally, exemplificative means for illustrative purposes, i.e. so as to explain or to give an example (M. Tavzes, Veliki slovar tujk [The Great Dictionary of Foreignisms], Cankarjeva založba, Ljubljana 2002, p. 260), and not exhaustive, which would entail listing each and every example (ibidem, p. 1133), which is also the way these two words are understood in the legal field.  
[21] Or, as this has already been said in a much nicer way in the judgment in which the regulation that did not allow homosexual persons to marry was found to be unconstitutional: “The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind.” This is how the Judgment of the Appeal Court for Ontario in Halpern and Others v. Canada, [2003] O. J. No. 2268, Para. 42, reads, with reference to the Judgment of the Supreme Court of Canada in Hunter v. Southam Inc., [1984]. 2 S.C.R. 145.
[22] See Decision of the Constitutional Court No. U-I-65/05, dated 22 September 2005 (Official Gazette RS, No. 92/05, and OdlUS XIV, 72).
[23] The working draft of the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia dated 6 March 2013, p. 7. Emphases in bold and underlined text added by J. S.
[24] Report on the Preparation of the Draft Constitutional Act, pp. 7–8.
[25] Ibidem, p. 11.
[26] Ibidem.
[27] Ibidem.
[28] See ibidem, p. 15.
[29] Naturally, it has to be added: either by a judgment of the ECtHR or by a judgment of the Court of Justice of the European Union, which is increasingly becoming a guardian of human (fundamental) rights, which can also necessitate a change in the legislation in a Member State when, e.g., the transposition of directives is at issue (the third paragraph of Article 3a of the Constitution).
[30] Similar was expressly stated also in Decision No. U-II-1/12 (Para. 27 of the reasoning).
[31] As regards the objectivistic interpretation in view of the ratio legis (constitutionis in this case) as discernible from the normative text, see M. Pavčnik, Teorija prava: prispevek k razumevanju prava [Theory of Law: A Contribution to Understanding Law], 4th revised edition, GV Založba, Ljubljana 2011, pp. 383–385.
[32] For this reason, people talk of constitutional democracy, which Asst. Prof. Dr Teršek also characterises as “a democracy of fundamental rights” or “a democracy in which not only the authorities in power but also the people themselves are bound by certain lasting, relatively unchangeable and binding principles and values, which are reflected in the tradition and doctrine of fundamental human rights and freedoms,” for which “[e]mphasis on the quality of constitutionality, constitutionalism and human rights, freedoms and fundamental principles of the rule of law, as well as sociality and democracy, are namely of essential importance, and not perhaps the political will (arbitrariness) of the parliament or the will (arbitrariness) of the majority of people entitled to vote.” A. Teršek, Teorija legitimnosti in sodobno ustavništvo [The Theory of Legitimacy and Modern Constitutionalism], University of Primorska, Scientific and Research Centre, Univerzitetna založba Annales, Koper 2014, pp. 402 and 407–408.
[33] The fourth paragraph of Article 15 of the Constitution; in order to be able to remedy the consequences of violations of human rights or fundamental freedoms, first the violations themselves have to be eliminated.
[34] See Decision of the Constitutional Court No. U-I-159/08, dated 11 December 2008 (Official Gazette RS, No. 120/08, and OdlUS XVII, 71).
[35] See Decision of the Constitutional Court No. U-I-163/99, dated 23 September 1999 (Official Gazette RS, No. 80/99, and OdlUS VIII, 209).
[36] Or, as the Constitutional Court stated in Paragraph 27 of the reasoning of Decision No. U-II-1/12, then it is possible to require the legislature to fulfil the burden of allegation and proof so that it convinces the Constitutional Court of the unconstitutionality of the act in force.
[37] See S. Zagorc, T. Štajnpihler, op. cit., pp. IV and V.
[38] Ibidem, p. VI.
[39] To which the third paragraph of Article 61 of the Constitution of France binds it.
[40] However, the first such review in case No. Rm-1/97 – in which the request was filed on 15 May 1997 and it was necessary to adopt a precedential position regarding competence – was carried out in a very short period of time.
[41] The Code of Good Practice on Referendums, adopted at a session on 16 and 17 March 2007, accessible at   (16 October 2015).
[42] The third indent of Paragraph II 3.3 d of the Code, p. 11.
[43] Which additionally indicates that the argument regarding the introduction of “a new (inappropriate) institute” in this procedure misses the point, as in any case its application is necessary – the only question is whether once or twice in the same procedure.
[44] Therefore, it is not enough that the legislature reacts; the reaction must be such that it eliminates the unconstitutionality.
[45] Had they been, as Prof. Dr Kaučič says, the rejection of such a law in a referendum would entail the continuation of the unconstitutional situation and would be constitutionally unacceptable. See I. Kaučič, op. cit. (2015), p. 1349.
[46] See the Judgment in Halpern and others v. Canada, with which, from the substantive point of view, also the Supreme Court of Canada subsequently concurred in Reference re Same-Sex Marriage [2004] 3 S. C. R. 698, 2004 SCC 79, dated 9 December 2004. Cf. also Judgment No. 159/2004 of the Constitutional Court of Belgium, dated 20 October 2004.
[47] The Act Ratifying Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Official Gazette RS, No. 46/10, MP, No. 8/10 – hereinafter referred to as Protocol No. 12 to the ECHR.
[48] See the Judgment of the Grand Chamber of the ECtHR in Sejdić and Finci v. Bosnia and Herzegovina, dated 22 December 2009.
[49] This is an independent Convention right outside Article 12 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Official Gazette RS, No. 33/94, MP, No. 7/94 – ECHR), regarding which the ECtHR continues to promote the establishment of minimum standards for all Council of Europe Member States, concerning which there also exist severe criticisms. See P. Johnson, “The Choice of Wording Must Be Regarded as Deliberate”: Same-sex Marriage and Article 12 of the European Convention on Human Rights, European Law Review, Year 40, No. 2 (2015), pp. 207–224. 
 
 
U-II-1/15
19 October 2015
 
Concurring Opinion of Judge Jan Zobec
 
 
Foreword
 
1. The purpose of this separate opinion is not to attack the positions on which the decision is based. I concur therewith. I would only like to draw attention to some aspects of the applied methods of interpretation of the new regulation of referendums and to highlight the essential interpretative arguments that led to the conclusion that the challenged Order of the National Assembly to not allow a referendum is inconsistent with the fourth indent of the second paragraph of Article 90 of the Constitution. I will rely on the predominant textual theory of legal exegesis as developed by Aharon Barak in his fascinating monograph Purposive Interpretation in Law,[1] on the one hand, and Antonin Scalia together with Bryan A. Garner in the lucid book Reading Law.[2] Why exactly Barak and Scalia (together with Garner)? For three simple reasons. First, due to the contrast. While the first author is probably the most eminent name supporting the teleological interpretation who attributes weight to both the objective and subjective intention of the author of the normative text but gives priority to the objective intention at the time of interpretation,[3] the second author is the most prominent supporter of textual originalism and an antipurposivist who decisively and unwaveringly rejects any reference to the intent, or, as he states, “[m]en may intend what they will; but it is only the laws they enact that bind us.”[4] [5] Scalia and Garner named their method of interpretation “the fair reading method,” which brings into focus the text and a reasonable and linguistically highly qualified reader (interpreter) who can understand the text at the time it entered into force.[6] The second reason is the global recognisability and repute of both legal eminences [i.e. Barak and Scalia]. They are the indisputable world-class authorities on interpreting legal texts – for both the supporters and opponents of one or the other. And, thirdly, they both pertain to the judiciary – Barak is undoubtedly the first name among the presidents of the Supreme Court of Israel, while Scalia is a long-standing Supreme Court judge and the most prominent justice amongst the current composition of the Supreme Court of the United States.
 
 
The Semantic Starting Point
 
2. The basic, fundamental, and in any interpretative approach, undisputable canon is respect for the semantic limits of the legal text.[7] If the interpretation entails uncovering the normative message that is “captured” by the text, then it is clear that this message can only move within its cage. Hence, the interpreter translates “human” language into “legal” language.[8] The semantic potential of the text, which encompasses the totality of all possible meanings that can be attributed to the vocabulary of the author of the text (when a constitutional or statutory text is at issue the vocabulary of public language is this semantic potential), is therefore always greater than the normative potential. The task of the interpreter is then only one: to choose, from amongst the different semantic possibilities that the text offers (Bedeutungsspielraum),[9] the one that is legally correct. This of course does not entail that a clear, semantically unambiguous, and undisputable text does not have to be interpreted. It definitely has to be interpreted as the realisation of the clarity, unambiguity, and indisputability can (only) be a consequence of interpretation.[10]
 
3. However, the fourth indent of the second paragraph of Article 90 of the Constitution does not fall within this category. Let us take a look at which semantic possibility is offered by this constitutional provision, which reads as follows: “A referendum may not be called on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.”[11] It is true that at first sight and in accordance with linguistic logic, the interpretation is offered that the entity that established an unconstitutionality and the entity eliminating the established unconstitutionality are the same entity. Namely, if someone starts to eliminate something, the person must first have a clear understanding of what he or she is eliminating. However, this holds true for individual human beings – a person will, as a general rule, always know what he or she is eliminating. The situation is different, however, as to collective authorities and abstract legal entities such as the National Assembly, which is a body composed of 90 individuals. It is clear how the National Assembly forms its (legislative) will. But this is clear only because the regulations establish this clarity. It is significantly less clear how this body acquires its knowledge, forms conceptions, opinions, positions, and intentions that are not adopted by voting in the form of a constitutional or legislative text.[12] So, where does the knowledge of a certain 90-member body as regards an unconstitutionality come from? It is a matter of fact that the National Assembly cannot have its own individual and original knowledge such as an individual can have. Therefore, a logical and pertinent question arises at this point, namely who, then, triggered (caused) the knowledge of an unconstitutionality in the National Assembly – was it individual deputies, and if this is so, which ones? Is it the specialist services, the opinions of some experts (who are reputable, influential, exposed in the media, loved by a certain political option), h.M, or is it the Constitutional Court as the highest body of the judicial power for the protection of constitutionality, legality, and human rights and fundamental freedoms, hence the authority that authoritatively and with finality adjudicates on the conformity of legal acts with the Constitution? And whose [voice] is decisive (e.g. if the opinions regarding an unconstitutionality diverge)? The text does not provide an express answer to these questions. If the text provided a semantically unambiguous answer, the interpretation would finish at this first step. However, given that this is not the case, it is necessary to proceed down the legal-hermeneutical path via the following interpretative canons until the point where the arguments favouring one of the linguistically possible interpretations outweigh the others with finality. 
 
 
The Importance of the Context
 
4. The need for further interpretative steps is in truth a consequence of lawyers’ apperception, which in this context significantly affects the perception of the text itself. In and of themselves, words and also strings of words do not possess some real, true meaning and it is also not possible to ascribe one thereto in advance and, which is even worse, even speakers do not have determinable intentions or purposes as to the meaning of their words.[13] Therefore, the context is necessarily included already in the first (semantic) phase of interpretation, i.e. in the understanding of the text[14] (although full and decisive expression only occurs in the following interpretative steps), which transforms the text from a lower (i.e. general, non-filtered) state of matter to a higher conceptional framework and thus already legally assimilates and domesticates it. So, what is the context in the case at issue? And what if several contextual layers are at issue that exclude one another? If this is the case, it needs to be ascertained which of these layers has the decisive meaning for the interpretation of the new regulation of referendums.[15] Concurrently, the conflict between them will also be resolved.
 
5. To begin with, the context cannot be anything other than constitutional. In this respect, the constitutional relation of the context condensed in the fourth indent of the second paragraph of Article 90 of the Constitution is important: [the relation between] constitutional democracy and people’s democracy. In this connection, two elements in particular are essential for the first concept. First, that constitutional democracy entails that all state authorities, including the National Assembly, are bound by the Constitution, an obligation which, insofar as the National Assembly as the legislature is concerned, also includes the duty to ensure the conformity of laws with the Constitution (Article 153 of the Constitution) – both those currently in force and future laws. This also includes the duty of the National Assembly to eliminate unconstitutionalities. On the other hand (and this is “second”), the first and decisive condition of constitutional democracy is the existence of a judicial authority that with finality and unconditionally protects human rights and other constitutional values, which have priority over the democratically adopted decisions of the majority.[16] Therefore, constitutional democracy functions well and is strong to the same degree that the Constitutional Court functions well and is strong – and to the same degree that its decisions are observed and implemented.
 
6. In the Republic of Slovenia it is the Constitutional Court that within the system of the separation of powers adopts final decisions on the conformity of laws with the Constitution and by its orders binds the legislature to eliminate the unconstitutionalities that it established by its decisions. The implementation of such decisions thus has a twofold constitutional weight – in addition to eliminating the unconstitutionality established by such, also the implementation of the decision is a constitutional value in itself. I could also add a third element (which, however, is a consequence of the second element): decisions of the Constitutional Court are authoritative, final and unchangeable, self-evidently binding, and cannot be appealed – neither the highest representative (i.e. legislative) body nor the people’s will (expressed in a referendum) can suspend them. Therefore, as regards what such decisions establish and what obligations they create, there cannot and must not be any doubt, discussion, or commentary by the bearers of power. Everything else is merely non-binding positions and opinions, more or less convincing, which can be subject to doubt or discussed. A decision of the Constitutional Court is absolute, everything else is relative.
 
7. Jointly with the concept of constitutional democracy determined by the fourth indent of the second paragraph of Article 90 of the Constitution, there also exists (perhaps it would be better to say “ekes out a miserable existence”) the concept of people’s democracy. The further (i.e. the fourth) contextual layer that an interpreter cannot ignore is therefore the right to a referendum as an expression of the second paragraph of Article 3 of the Constitution, in accordance with which power in Slovenia is vested in the people, and also of Article 44 of the Constitution, which confers [on citizens] the right to participate in the management of public affairs. Although it is undisputable that in the conflict between these two constitutional concepts – between constitutional democracy and people’s democracy – constitutional democracy is the undisputed winner, the question is raised as to what the path to its victory is and at what price (– so that the victory is not merely pyrrhic in the end).
 
 
The Theoretical Basis of Interpretation
 
8. Which of the two constitutional concepts is decisive for understanding the fourth indent of the second paragraph of Article 90 of the Constitution? Is it the first one, which entails the active commitment of the National Assembly to the Constitution, or the other one, in accordance with which it is the Constitutional Court that has the final say as to an unconstitutionality – while the National Assembly has the obligation mirroring this prerogative to obey the orders of the Constitutional Court? A wider perspective is needed to find an answer, a perspective that includes what Barak calls the outward, extrinsic context, i.e. [it is necessary to] compare the history of the text’s drafting and the legal regulation in force at the time with the current one and the social background. Both are important, the outward and internal contexts, which as the means and the method jointly lead to the realisation of the subjective and objective intentions and through their interplay to the realisation of the final and ultimate intention.[17]
 
9. The approach of Scalia and Garner is different – they decisively oppose any application of outside sources, in particular legislative files (hearings, committee and commission reports, and legislative debates).[18] However, denial of the importance of legislative history for their concept of a “fair reading” does not in any way entail that the history of the law at issue is excluded (changing regulations). The latter is namely important for understanding the context, as prior to the voting on the new regulation the members of the legislative (constitutive) body had in front of them also the [regulation] in force until then (which the new regulation eliminates or amends).[19]
 
10. Also some special rules apply to the interpretation of constitutional texts. First, the rule requiring constitutional completeness and consistency, which is based on the (rebuttable) presumption that constitutional provisions (in whichever constitutional document they appear) exist in mutual unity and conformity; therefore, the interpreter should endeavour to search for the intention that to the greatest degree supports constitutional unity, balance, and harmony, as (constitutional) law is a system whose component parts function and produce effects jointly.[20] Also the principle of respect for continuity in the constitutional case law falls therein. The next rule that is important for interpreting the Constitution is that the objective intention is decisive. The objective intention beats the subjective intention even if the subjective intention is reliably and clearly demonstrated. The latter can only be essential in two instances: in resolving the dichotomies between objective intentions in conflict and when interpreting a young constitutional text – the interpreter will then attribute significant weight to the abstract intention of the formulators of the constitutional text.[21] Finally, a wide-angle lens should be used when interpreting the Constitution, with the right depth of field, such that allows for a panoramic view, one that is, as Barak states, “generous, not legalistic or pedant,”[22] and which encompasses the past, the present, and the future.[23]
 
11. To conclude, the final, ultimate intention of the text of the fourth indent of the second paragraph of Article 90 of the Constitution will be essential for the interpretation of this text. Since the text is “young” and the regulation of referendums is new, one that the Constitutional Court has not yet adopted a position on, also the abstract subjective intention of the author of the text, in addition to the objective intention, will be important. The teleological interpretation requires the establishment and assessment of all data relating to the intention of the text that is the subject of interpretation, and the interpreter’s endeavour to synthesise and coordinate them, with regard to which data regarding the subjective and objective intentions have to be mutually compared and considered with the same degree of abstraction. The teleological interpretation is holistic (it includes both the subjective and objective purposes, i.e. both the intention of the “drafter” of the text and the intention of the “system”) and rejects a one-dimensional view. 
 
Regarding the Subjective Intention (or the Intention of the Author of the Text):
 
12. When searching for the abstract (and not concrete) subjective intention,[24] one searches for the meaning that the text would have if it had been interpreted when it was created (this is an ex tunc interpretation).[25] The most reliable internal source for this interpretation is the constitutional text itself, more precisely in its integrity.[26] The interpretation of the Constitution is a “holistic endeavour”.[27] In the opinion of Barak, also outside sources are important: the social and legal background from which the Constitution (or an amendment thereof) was created, and the history of the drafting of the text, including minutes on the discussions and polemics within the constitution-framing body concerning the drafting of the Constitution.[28] Since the text itself – due to the reasons stated in Paragraph 3 of this opinion – does not provide a reliable message concerning the subjective intention, the context should be taken into consideration, which, as explained in Paragraph 4 of this opinion, reveals the intention ex tunc. Understandably, the context is only recognisable by [taking into account] the totality of the text, while this text can only become known with the assistance of the context. Surely, this is the paradox of the hermeneutic circle. That which is the object of proof proves itself.
 
13. The only possible solution is the following: the totality of the text enables insight into the context, which in turn is only recognisable due to the interpreter’s apperception and his or her prior understanding of law. The interpreter never approaches (and must never approach) the interpretation as a blank sheet of paper, but as a member of the community of lawyers, and is thus “burdened” with the corresponding “baggage” – according to J. F. Herbart, the apperceptive mass, i.e. values, principles, doctrines, positions regarding societal customs, habits, ethics, justice, conventions, and axioms.[29] The context explained in such manner helps make the intention clear, which then in the next step clarifies the realisation of the context, which then sharpens the picture of the intention. This process continues all the way until the final clarification, or, as Gadamer states, until the two horizons join – i.e. the horizon of the author of the text and the horizon of the interpreter of the text (Horizontverschmelzung).[30] In the process of the “merging of horizons” also information on the circumstances that accompanied the drafting of the text can have a clarifying effect, first the history of the legal act, which includes the history before its entry into force,[31] [and also] the events and experiences that motivated and affected the formation of the text, as well as discussions and hearings in the legislative (constitution-framing) body. If the sources oppose each other, the internal source – although rebuttable – has priority over outside sources.[32]
 
Regarding the Objective Intention (or the Intention of the System):
 
14. The objective intention of a legal text is the intention that can be attributed to a reasonable author (i.e. the legislature or constitution-framers), which, however, is naturally ascertained and thus established by the interpreter.[33] This is not the actual (i.e. real, factual) intention of the actual author, and, as opposed to the subjective intention, it cannot be (and it is also not necessary that it would be) confirmed by evidence. It also does not express the “factual” intention of the author; it is a legal construct that reflects the needs of society.[34] At a high level of abstraction, it entails the “intention of the system,”[35] and, at a less abstract level, the intention of a reasonable lawmaker, which is reflected in the right balance of the principles and values of the system.[36] In the same manner as when searching for the subjective intention, also in this context it is not the text that is essential (which is an important point of commonality of both Barak [on one hand] and Scalia and Garner [on the other]). Also here the interpreter is faced with a hermeneutic circle, which it will overcome in the same manner as when searching for the subjective intention, i.e. by lawyers’ apperception, which creates his or her horizon. Then the horizons will approach each other – that of the interpreter and that of the author.
 
15. When uncovering the subjective and objective purposes, the starting point of the semantic convention will be logic and the assumption of a harmonious text. Logic and intellect in their totality, connected with the wording of the text, assist in interpreting the purpose of the normative arrangement that is established in the text.[37] Also here, what is important is a wide view that takes into account the “natural environment,” i.e. the normative regulation within which the interpreted text lives and operates. This applies all the more for interpretation of the Constitution, where the interpreter must – as Barak teaches – strive for “harmony and the connection with the other constitutional provisions,” as “the individual constitutional provision that is the subject of interpretation does not exist alone, but forms a part of the broader constitutional regulation and affects the understanding of the Constitution as a whole – and vice versa, the Constitution as a whole also affects the understanding of the individual provision as an individual part thereof.”[38]
 
16. Also Article 90 of the Constitution was not created in vacuum and the fourth indent of the second paragraph of this Article is not an isolated island, but a part of a vast constitutional continent. Since the constitutional whole participates in the assessment of the objective intention, it often becomes apparent that the interpreted text has different and incompatible intentions, just as there exists an incessant internal conflict between the constitutional values, principles, and starting points from which assumptions follow regarding objective intentions – clashes between assumptions regarding objective intentions are nothing but reflections of inevitable clashes between constitutional values in principles.[39] And how should one resolve these conflicts? The answer is obvious, with logical certainty: the way conflicts between values and principles themselves are resolved. If the reconciliation is not possible (e.g. because the conflict is only ostensible), balancing should be the method of resolution.
 
Regarding the Final and Decisive (Ultimate) Purpose:
 
17. The last hermeneutical act is the synthesis and integration of all realisations regarding the subjective and objective intentions. The interpreter seeks reconciliation between different assumptions regarding the subjective and objective intentions. If the obtained messages contradict each other, the interpreter must strive to reach the subjective goal of the lawmaker, and realise the fundamental values of the system. If the assumptions regarding the factual subjective intention and the objective intention contradict each other, the assumption regarding the objective intention will most often have priority. However, in the majority of cases, all information regarding the subjective and objective intentions will be pointing in the same direction.[40] This holds true also in the case at issue. Let us take a look at why this is so.
  
The Resolution of the Hermeneutical Riddle
 
First, Concerning the Subjective Intention
 
18. Data regarding outside sources that are important for clarifying the subjective intention of the new constitutional regulation of the referendum, in particular the fourth indent of the second paragraph of Article 90 of the Constitution, are scarce and laconic. Nevertheless, some useful information can be extracted from the legislative file. From the Draft Constitutional Act Amending Articles 90, 97, and 99 of the Constitution of the Republic of Slovenia (EPA 620-VI, 2 April 2013) it follows that the advantage of the new regulation is that it is significantly more predictable and that it limits the possibility of an arbitrary assessment of how unconstitutional consequences – as the reason for the constitutional prohibition of a referendum – arose and that this applies notwithstanding the openness of legal terms as to their meaning and interpretation, in particular those on the constitutional level, which are inherently of such nature and can never be defined fully and in advance already at the level of the text. From the legislative file it also follows that the regulation in the Constitution will be such as to provide the Constitutional Court with firmer support and more clearly determined boundaries and limits on its decision-making.[41] The fact that the intention of the constitution-framers was to determine firmer support and more clearly determined boundaries and limits on its decision-making also follows from the two Reports of the Constitutional Commission dated 29 March 2012 and 15 January 2013, which draw attention to the weakness of the past regulation in which the Constitutional Court lacked clear criteria and anchors that it could use as support for its assessment regarding the admissibility of a referendum. This intention cannot be ignored in the interpretation. When applied to the fourth indent of the second paragraph of Article 90 of the Constitution, it entails exactly what is described in Paragraph 46 of the reasoning of the Decision.
 
19. The initial Proposal for the Initiation of Proceedings for Amending the Constitution of the Republic of Slovenia with the Draft Constitutional Act Amending the Constitution of the Republic of Slovenia, dated 13 September 2012 (hereinafter referred to as the Proposal) included the diction that “it is not admissible to call a referendum if human rights and fundamental freedoms could be affected or if other unconstitutional consequences could occur.” On 28 November 2012, the Expert Group of the Constitutional Commission submitted a position regarding the filed Proposal, in which it stated that it has reservations regarding the proposed diction and that in this respect it proceeds “in particular from the decisions of the Constitutional Court in referendum cases.” Due to these reservations, the Expert Group proposed “for consideration that instead of the proposed grounds for excluding [a referendum], the calling of a referendum on laws adopted in order to eliminate an established unconstitutionality should not be allowed.” The constitution-framers followed this proposal, but excluded from the proposed text the word “established.”
 
20. The difference between the original text in the Proposal and the final text is essential and telling. If the initial text had remained, namely that a referendum may not be called whenever human rights and fundamental freedoms could be affected or other unconstitutional consequences could arise, then the Constitutional Court would have significantly broader leeway to review the unconstitutionality than the text of the [mentioned] fourth indent in force confers thereon. It is true that the National Assembly excluded the word “established” from the text and only preserved the diction “on laws eliminating an unconstitutionality in the field of human rights and fundamental freedoms or any other unconstitutionality.” However, it cannot be deduced therefrom that in such a manner the basis for prohibiting a referendum also as regards other laws is provided, laws where there is no prior decision of the Constitutional Court by which an unconstitutionality was established or where there was no judgment of the ECtHR establishing a (systemic) violation of human rights. In Paragraph 41 of the reasoning of the Decision it is explained why in this connection the adjective “established” is semantically redundant. Outside sources indicating the subjective intention that due to the “young age” of the interpreted text occupy a more important role than they would deserve thus point in two (complementary) directions: towards a clear, determinate, transparent, and predictable regulation of referendums that “limits the possibility of an arbitrary assessment of unconstitutional consequences arising as a reason for the constitutional prohibition of a referendum”[42] and towards a narrower interpretation of the fourth indent of the second paragraph of Article 90 (otherwise the text of the fourth indent would remain such as it was in the original Proposal).
 
21. In the next research step, the text is essential. However, not the text of the interpreted provision but the text of the entire new regulation of referendums. Also the previous regulation and the case law of the Constitutional Court referring thereto (the “history of the law,” according to Scalia and Garner) are important. Concurrently, the indication of the subjective intention of the constitution-framers acquired thus far from outside sources must at all times be taken into account. The difference between the previous and the current (new) regulation of referendums is, as explained and concluded in Paragraphs 36, 43, 44, and 45 of the reasoning of the Decision, of essential importance. Why the change occurred is indicated already in the outside sources mentioned in the previous three paragraphs. If also the historical context and the dynamism of the constitutional case law of referendum cases in the last eight years are added thereto (I dare to state that these dynamics reached their peak in Decision No. U-II-1/12, U-II-2/12, dated 17 December 2012, which was virtually the direct incentive to initiate referendum reform),[43] it becomes apparent that the constitution-framers had the intention to exclude referendums (in addition to the instances referred to in the first three indents) only as regards laws that eliminate those unconstitutionalities that the Constitutional Court has previously established in its decisions or which eliminate violations of human rights established by a ECtHR judgment. If the unconstitutionality referred to in the fourth indent referred to any unconstitutionality, i.e. even an unconstitutionality that the National Assembly itself established (or with the assistance of a specialist service thereof, the legal profession, reputable legal scholars, influential lawyers, and similar), the National Assembly would not reach the objective it aimed at. There would still remain space for the possibility of an arbitrary assessment regarding whether “unconstitutional consequences would arise”; the Constitutional Court would still have to carry out a review of the constitutionality of at least two regulations (the existing one, which is allegedly unconstitutional, and the new one, which eliminates the alleged unconstitutionality);[44] there would still exist uncertainty regarding the result of virtually every referendum dispute, and the Constitutional Court would remain without “firmer support and more clearly determined boundaries and limits on its decision-making.” Therefore, I can only say: also the internal sources point to the same subjective intention.  
 
The Objective Intention:
 
22. Everything stated thus far also indicates how to solve the riddle regarding the objective intention. This is namely the key intention of a reasonable author of a text (in the case at issue, the constitution-framers), with regard to which a “normative umbrella” is open above both the entire legal system and the entire interpretative operation, an “umbrella” expressing the idea that every legal text is a creation of its environment. In addition to the direct normative context, this environment encompasses the principles permeating the entire legal system, the fundamental objectives, and basic standards.[45] Therefore, the constitutional context plays a double role in this respect – as the criterion of a reasonable creator of the text and as the intention of the system. As regards the former, virtually everything has been stated in Paragraph 46 of the reasoning of the Decision and in the previous paragraph of this opinion. Due to the “young age” of the interpreted text, the subjective intention necessarily complements the objective intention, which, by applying the criterion of reasonable constitution-framers, points in the same direction. An additional (objective) motive for excluding a referendum only as regards laws that directly implement a decision of the Constitutional Court or eliminate a violation of human rights that was established by a ECtHR judgment is the significant importance of the right to a referendum (and the rule on the restrictive interpretation of limitations and the exclusion of rights that is connected therewith) and of the possibility to abuse the right to require a referendum (regarding which a great deal has already been stated in some of the hitherto decisions on referendum matters).[46]
 
23. Let me add thereto another two arguments that are mutually interconnected. First, decision-making in a referendum dispute is carried out within a wider legislative procedure. Since any (judicial) dispute entails a disturbance and obstacle in the normal development of legal relations, a referendum dispute is no different. Such a disturbance and obstacle in the legislative procedure must thus be eliminated as soon as possible. This puts pressure on the Constitutional Court to decide expeditiously; the law even prescribes a 30-day time limit. Even though the Constitutional Court has not observed this time limit in the majority of cases, this does not entail that it did not work under pressure. Such manner of resolving complex constitutional questions (let me repeat that in the event the unconstitutionality of the existing regulation is not yet established with finality and authoritatively, a review of the constitutionality of as many as two regulations – the existing one and the new one – has to be carried out) is not in conformity with the conception of the Constitutional Court as a body of nine wise persons that slowly, but thoroughly, in depth and persistently, tackles the most complex constitutional questions.[47] Decisions that are adopted quickly and under pressure are of corresponding quality (in accordance with the per substitutionem method) – sloppy, hasty, of sleight of hand, and thus poor.[48] This way it is not excluded already in advance (and this is the second argument) that in a referendum dispute the Constitutional Court could (preliminarily) find that the existing regulation is not unconstitutional and thus would not prevent the holding of the referendum. The people would then reject the new law in the referendum and the old regulation (which the Constitutional Court held is not unconstitutional) remains in force. During a review of the constitutionality of this regulation subsequently (upon a petition or request), when the Constitutional Court takes the time necessary for a review, it would become apparent that the regulation is nevertheless unconstitutional.
 
The Synthesis or the Final (Ultimate) Intention:
 
24. When, as in the case at issue, all the data regarding the subjective and objective intentions point in the same direction, it is not difficult to determine the final intention of the interpreted constitutional text. However, prior to the final decision, also both existing constitutional concepts mentioned in the fourth indent of the second paragraph of Article 90 of the Constitution must be harmonised: constitutional democracy and people’s democracy. The question must be raised as to whether a referendum regarding a law that does not directly eliminate an unconstitutionality previously established by a decision of the Constitutional Court, or a law that eliminates a violation of human rights established by a ECtHR judgment, would jeopardise constitutional democracy and thus governance by human rights. Needless to say, human rights and the protection of constitutionality have priority over people’s democracy – in the end, governance does not pertain to the people but (precisely because of the people) to human rights.[49] In systems with a concentrated review it is constitutional courts that have the final say, and there would be no functional constitutional democracy without them. From this perspective, at first sight it does not matter whether the Constitutional Court adopts a position regarding an unconstitutionality that the National Assembly eliminates by a law regarding which voting in a referendum is required separately and in advance or only during the referendum dispute as a preliminary question. However, if one takes a closer look in the manner explained in the previous paragraph of this opinion, it is not irrelevant.
 
25. On the other hand, there is a small, I dare say only ostensible, probability that the rejection in a referendum of a law that eliminates a presumed unconstitutionality or that does not directly eliminate an unconstitutionality established by a constitutional court but concurrently regulates anew some other fields that are unrelated as to their pertinence would have serious and detrimental consequences for constitutional democracy. First: the existing unconstitutionality is namely at every moment exposed to being challenged by privileged applicants, including the Ombudsman for Human Rights (whose primary task is precisely continuous supervision of the state of constitutionality in the field of human rights), but also by petitioners with legal interest. And if there is a looming threat of difficult to remedy harmful consequences, the Constitutional Court may suspend the implementation of the challenged regulation (Article 39 of the CCA). Second: the elimination of an unconstitutionality established by a decision of the Constitutional Court is possible at any time; moreover, the legislature has a constitutional duty to do so. In this respect, even the one-year time limit determined by Article 25 of the RPIA does not represent an impediment. 
 
26. For such reason, I do not see the values of constitutional democracy as being threatened. One also has to bear in mind the following: the existing circumstances are constitutionally stable. The Constitutional Court successfully and effectively functions and eliminates unconstitutionalities from the legal order. On the other hand, also the expectation and trust that the legislature will not commit some manifest and grave, brutal actually, unconstitutionalities resulting from original constitutional rules is justified. Therefore, the argument that a position could arise where the legislature would enact a certain grave and brutal unconstitutionality (e.g. the death penalty, torture, or segregation), then eliminate it even prior to a decision of the Constitutional Court, and immediately after face a petition or a request for the calling of a referendum on such a law eliminating an unconstitutionality, is ostensible, ad absurdum, and without a reasonable connection to reality, and is unworthy of serious discussion also because it is based on the assumption of extreme mistrust in the legislative power.
 
27. To conclude. The interpretation of the fourth indent of the second paragraph of Article 90 of the Constitution as adopted by the Constitutional Court in the case at issue enables the cohabitation of both constitutional concepts: constitutional democracy, “whose essence is that the values protected by the Constitution, including, in particular, fundamental human rights and freedoms (the Preamble to the Constitution), can prevail over the democratically adopted decisions of the majority,”[50] and the principle in accordance with which in the Republic of Slovenia power is vested in the people, an expression of which is also the right to a referendum. Constitutional democracy requires unconditional respect for the decisions of the Constitutional Court. Also the will of the people has to submit thereto. Therefore, it is logical that the right to a referendum regarding a law that implements a decision of the Constitutional Court in a constitutionally consistent manner and thereby is limited to eliminating the established unconstitutionality, which may only be eliminated in one single manner (and in addition only regulates marginal and technical issues, issues that are “additional parts” by their nature, or issues that are directly connected with the established unconstitutionalities and refer to the same content, and are inextricably connected with the elimination of the unconstitutionality)[51] simply does not exist. The same holds true for the elimination of a violation of a human right established by the ECtHR. However, such does not entail that the legislature could prevent a referendum with the excuse that it eliminates an unconstitutionality, but by a statutory regulation that is not directly connected to the elimination of an unconstitutionality established by a decision of the Constitutional Court or by a ECtHR judgment, or by including in the statutory regulation by which it would want to eliminate a certain unconstitutionality also the regulation of other issues that are not directly connected to the established unconstitutionality. When the legislature eliminates unconstitutionalities, it must namely also observe other constitutional values, including the principle that in the Republic of Slovenia power is vested in the people.
 
 
                                                                                              Jan Zobec
                                                                                                 Judge
 

[1] A. Barak, Purposive Interpretation in Law (translation from Hebrew by S. Bashi), Princeton University Press, Princeton, Oxford 2005.
[2] A. Scalia, B. A. Garner, Reading Law: The Interpretation of Legal Texts, Thomson/West, St. Paul MN 2012.
[3] In truth, the author’s approach is a synthesis of all generally recognised and established methods of interpretation – from literal to teleological and constitutionally consistent interpretation, and from historic to systemic interpretation. A mere look at the table of contents of his book reveals this.
[4] See A. Scalia, A Matter of Interpretation: Federal Courts and the Law, Princeton University Press, Princeton 2007, pp. 16 and 17. See A. Scalia, B. A. Garner, op. cit., pp. 18 et seq.
[5] Robert Bork, who is also one of the most influential and loudest supporters of originalism and judicial restraint (conservatism), described the Supreme Court of Israel, when Barak was its president, as “simply the most activistic and the most undemocratic court in the world.” See R. H. Bork, Coercing Virtue: The Worldwide Rule of Judges, The AEI Press, Washington D.C. 2003, p. 13. Let me add at this point, as a curiosity, that Scalia occupied precisely that Supreme Court judgeship that was initially intended for Bork, but his nomination was rejected by the Senate in 1987. The reason therefor is another story (which is connected to the Watergate scandal).
[6] In contrast to them, “a reasonable legislature” is important for Barak, as will be explained below. The authors also expect from the interpreter aptitude in language, sound judgment, the ability to supress personal preferences, and with older texts, historic linguistic research. Also important is an ability to comprehend the purpose of the text, which is a vital part of its context. See A. Scalia, B. A. Garner, op. cit., p. 33.
[7] Barak, although an intentionalist, repeats and stresses this in numerous places of his monograph, including in the chapter on the interpretation of the constitution. Cf. e.g. op. cit., pp. 102, 103, 145, 148, 175, 382. The fact that Scalia and Garner specifically underline this does not need to be explicitly stated. They are right that even interpreters without textual convictions habitually open their opinions by stating: “We begin with the words of the statute.” The text of a legal norm is like the starting line of a boat race. Everything begins with the text – the question is whether it also ends therewith. For textualists (like Scalia and Garner) it definitely does. See A. Scalia, B. A. Garner, op. cit., p. 16. At this point, the two authors also refer to the Digest of Justinian: "A verbis legis non est recedentum" (From the words of the law there should be no departure) – Digest 32.69 pr. (Marcellus), see A. Scalia, B. A. Garner, op. cit., p. 56. 
[8] See A. Barak, op. cit., p. 6.
[9] See R. Zippelius, Einführung in die Juristische Methodenlehre, Beck, Munich 1971, p. 25; or, as Bydlinski and Begriffshof state it: see F. Bydlinski, Juristische Methodenlehre und Rechtsbegriff, Springer, Vienna, New York 1982, p. 438.
[10] See A. Barak, op. cit., p. 14; A. Scalia, B. A. Garner, op. cit., pp. 53, 54.
[11] Barak convincingly concludes that at this first step of interpretation, when the totality of the semantic meanings of the text must be ascertained, every legal interpreter is at the same time also a linguist – but not every linguist is also a legal interpreter. See A. Barak, op. cit., p. 7. Similar is stated by Scalia in Garner when they discuss the supremacy-of-text principle as one of the fundamental principles of interpretation. See A. Scalia, B. A. Garner, op. cit., p. 57.
[12] In the opinion of some, an individual member of parliament voting has a certain intention, which directs his or her vote, but he or she can also lack such an intention. However, when a (voting) body as a whole is concerned, only the result of the voting has such [an intention]. See F. H. Easterbrook, Statutes' Domains, University of Chicago Law Review, Vol. 50, No. 2 (1983), p. 547 – accessible at: 
The same author at another place: “Take a close look at the minds of legislatures and you will find a hodgepodge.” See A. Scalia, B. A. Garner, op. cit., p. 393. Similar is stated by Scalia and Garner: “The state of the assembly's collective psychology is a hopeless stew of intentions;” see A. Scalia, B. A. Garner, op. cit., pp. 392, 397. This is also expressed very characteristically by Shepsle (cf. K. A. Shepsle, Congress Is a ‘They,’ Not an ‘It’: Legislative Intent as Oxymoron, International Review of Law and Economics, Vol.12, No. 2 (1992), pp. 239 et seq.).
See A. Barak, op. cit., pp. 98, 99, 373. Scalia and Garner conclude that lawyers argue about plain and unambiguous language all the time and that that is precisely their job: to inject doubt when it is in their clients' interest (see A. Scalia, B. A. Garner, op. cit., p. 54).
[14] The central character of the context for interpreting legal texts is the fundamental and most important common characteristic of both interpretative approaches – i.e. Barak’s and the originalistic approach (which is voiced by Scalia and Garner). See A. Barak, op. cit., pp. 101, 102, 111; A. Scalia, B. A. Garner, op. cit., pp. 20, 33, 56, 63, 167 et seq., 252, 356.  
[15] Cf. A. Barak, op. cit., p. 101.
[16] In Decision No. U-I-111/04, dated 8 July 2004, the Constitutional Court held that “[t]he Republic of Slovenia was established as a constitutional democracy, whose essence is that the values protected by the Constitution, including, in particular, fundamental human rights and freedoms (the Preamble to the Constitution), can prevail over the democratically adopted decisions of the majority.”
[17] See A. Barak, op. cit., pp. 101, 102.
[18] See A. Scalia, B. A. Garner, op. cit., pp. 369–390.
[19] See ibidem, p. 256.
[20] See A. Barak, op. cit., pp. 377–379. The above stated of course does not exclude the fact that constitutional values are in eternal mutual conflict, which are resolved by the (constitutional) court, which by its case law establishes internal conformity, balance, and harmony between them, and thus the unity and coherency of the constitutional structu1re. Or, in the words of O. W. Holmes: "[A constitution] is made for people of fundamentally differing views…." See his dissenting opinion in Lochner v. New York, 198 U. S. 45, 76 (1905). Among the contextual canons of interpretation, Scalia and Garner specifically discuss the harmonious-reading canon, whose motto is expressed by the almost 150-year-old wisdom of T. M. Cooley: "[O]ne part is not to be allowed to defeat another, if by any reasonable construction the two can be made to stand together." See A. Scalia, B. A. Garner, op. cit., pp. 180–182.
[21] See A. Barak, op. cit., pp. 94, 190, 191, 204, 385 et seq.
[22] See ibidem, p. 391. Similarly A. Scalia, B. A. Garner, op. cit., pp. 355, 356.
[23] See Barak, op. cit., p. 391.
[24] The difference between the abstract intention and the concrete intention is the following: The abstract intention focuses precisely on the text that is the subject of interpretation, whereas the concrete intention deals with the consequences of a certain interpretation of the text that such interpretation has in the considered concrete life situation, i.e. what the expectations of the author of the text are (or should be) as to the application of this text in the concrete case and the concrete consequences thereof. See A. Barak, op. cit., pp. 126, 127. It is not necessary to specifically substantiate that the application of the concrete intention (the consequentialistic interpretation) would be inconsistent with the principle of the separation of powers.
[25] See ibidem, p. 120. The same in Scalia and Garner – The Fixed-Meaning Canon. See A. Scalia, B. A. Garner, op. cit., pp. 78 et seq.
[26] For an exhaustive treatment of this, see A. Barak, op. cit., pp. 135 et seq.
[27] See A. Scalia, B. A. Garner, op. cit., p. 168. The authors conclude that also the majority of other canons that belong to the contextual group are derived from the whole-text canon. See ibidem.
[28] See A. Barak, op. cit., pp. 376, 377. Scalia and Garner decisively reject these sources, and state convincing arguments therefor. See A. Scalia, B. A., Garner, op. cit., pp. 369 et seq.
[29] Cf. the opinion of judge Mishael Cheshin in the Supreme Court of Israel case H. C. 5503/94 Segel v. Speaker of Knesset, 51(4) P. D. 529, 562, who states: “When we approach a statute of the parliament, we do not come empty-handed. We bring our baggage of language, definitions of language and meanings, social customs and ethics, conventions and axioms, justice and integrity, principles and doctrines.” Taken from A. Barak, p. 136. The same judge is even more expressive in his dissenting opinion in the case F. H. C. 7325/95 Yediot Ahronot Ltd. v. Kraus 52(3) P. D. 1. 72, 73, 74. See A. Barak, op. cit., p. 153.
[30] See H. G. Gadamer, Truth and Method (transl. J. Weinsheimer and D. G. Marshall) Bloomsbury, London, New Delhi, New York, Sydney 2004, p. 537.
[31] Scalia and Garner call this statutory history (as opposed to legislative history, which they decisively reject as a source for recognising the legal meaning of the text). See A. Scalia, B. A. Garner, op. cit., pp. 256, 440.
[32] See A. Barak, op. cit., p. 144. In the opinion of Scalia and Garner, no other sources exist than those that are based on the text. The intention has to be sought in the text and not in the legislative history. See, e.g., A. Scalia, B. A., Garner, op. cit., pp. 370 et seq.
[33] This is in conformity with Radbruch’s wisdom (to which also Barak refers in this connection) that “the will of the legislature [...] is not a source of interpretation, but the goal of interpretation and the result of interpretation, an expression of an a priori necessity of a systematic non-contradictory interpretation of the entire legal order.” Radbruch therefore states that “it is possible to define something that was never present in the conscious will of the authors of a law as the will of the legislature, and concludes: “The interpreter can understand the law better than its creators understood it; a law can be smarter than its authors – it even must be smarter than its authors are.” See G. Radbruch, Filozofija prava [Philosophy of Law] (transl. A. Maček), GV Založba, Ljubljana 2007, p. 147. See A. Barak, op. cit., p. 154. Although Scalia and Garner unconditionally reject any intention of the author of the text and only recognise the intention of the law (see, e.g., A. Scalia, B. A. Garner, op. cit., pp. 397, 398), their positions as to the intention of the law differ little or not at all from those of Barak (and Radbruch). In this connection, they refer, inter alia, to Lord Reid, who stated that judges “are seeking not what Parliament meant but the true meaning of what they said.” Or, as E. Keeton expressed himself: “[T]he search is for the objectively manifested meaning, not for somebody's unexpressed state of mind.” See A. Scalia, B. A. Garner, op. cit., p. 394.
[34] See A. Barak, op. cit., p. 148.
[35] See ibidem, pp. 152, 153. In this connection, the author speaks of the intention of the system and of the “normative umbrella” that expands above every single text in the legal system and which is directed towards the protection of equality, fairness, and justice. See ibidem, p. 149.
[36] See ibidem, p. 151. At the lowest level of abstraction, the interpreter “puts himself in the shoes” of the author of the text and asks himself how he could most reasonably realise the social project that the text establishes, while on the higher, abstract, level, the interpreter asks himself what the hypothetical intention of an ideal author (constitution-framer) is, which reflects the right balance of values and principles of the system, and, [finally,] the highest abstract level is that which states what the fundamental values of the system are. When a constitution is at issue, these [fundamental values] are human rights, the separation of powers, and democracy. See ibidem, pp. 150–153.
[37] See ibidem, pp. 158, 175. Scalia and Garner state something similar as they divide interpretative canons into sematic, syntactic, contextual, and expected-meaning canons.
[38] See ibidem, pp. 159, 160. In this respect, the author also refers to Antonio Lamer, President of the Supreme Court of Canada, who stated the following in relation to the interpretation of the Canadian Constitutional Charter in Dubois v. R. [1985] 2 S. C. R. 350, 365: The “Constitutional Charter must be construed as a system where every component contributes to the meaning as a whole, and the whole gives meaning to its parts.” Also Scalia and Garner share the same narrative when they interpret the related-statues canon: “Any word or phrase that comes before a court for interpretation is part of a whole statute, and its meaning is therefore affected by other provisions of the same statute. It is also, however, part of an entire corpus juris.” (see A. Scalia, B. A. Garner, op. cit., pp. 252, 253).
[39] See A. Barak, op. cit., pp. 172, 173, 176.
[40] See ibidem, pp. 189, 182, 183.
[41] Cf. I. Kaučič, Ustavnosodna presoja zakonodajnega referenduma po novem [Constitutional Review of the Legislative Referendum under the New Regulation], Podjetje in delo, Nos. 6–7 (2015), pp. 1348, 1349.
[42] See ibidem.
[43] It is not irrelevant that this Decision is one of two decisions by which the Constitutional Court prohibited a referendum where the prohibition was not based on the elimination of an unconstitutionality required by a decision of the Constitutional Court. Prior to that occasion, it did the same in only one other case, namely in Decision No. U-II-1/09, dated 5 May 2009, which was, however, adopted by the slimmest majority possible.
[44] See, e.g., Para. 7 of the reasoning of Decision No. U-II-2/09, dated 9 November 2009.
[45] See A. Barak, op. cit., p. 149. The author stresses in numerous places that judges must be able to recognise and express the deep values of society and avoid brief and passing trends. See ibidem, pp. 167, 168. See the author’s opinion in Supreme Court of Israel case H. C. 428/86, Brazilai v. State of Israel, 40(3) P. D. 505, 585.
[46] See, e.g., Para. 7 of the reasoning of Decision of the Constitutional Court No. U-II-2/09; Para. 39 of Decision of the Constitutional Court No. U-II-1/10, dated 10 June 2010; and Para. 24 of Decision of the Constitutional Court No. U-II-1/11, dated 10 March 2011. In the latter Decision, the Constitutional Court inter alia stated: “In fact, in a situation where the legislature implements decisions of the Constitutional Court, it also regulates other important issues that can as well be of systemic nature. One cannot reproach the National Assembly for misusing its legislative function by such behaviour. However, in such an instance it cannot expect that the Constitutional Court will ‘prohibit’ a referendum regarding the new regulation as a whole merely due to this harmonisation.”
[47] On the eastern façade of the palace of the Supreme Court of the United States there are images of a tortoise and a hare carved in the marble, which are contrasting symbols of judicial deliberation; [the tortoise is] slow, thoughtful, firm, and unfaltering.
[48] I already wrote about this in Para. 7 of the concurring opinion to Decision No. U-II-1/11.
[49] Teršek has developed a concept of foundational democracy that at its core is based precisely on this realisation: “Sovereignty as such [...] can no longer be attributed to either individuals or a concrete living population and their institutions. It can only be attributed to norms, fundamental principles, and values, but above all to fundamental human rights and fundamental freedoms, as well as principles such as the rule of law, democracy, a social state, freedom, dignity, and respect, which are directly connected therewith. See A. Teršek, Teorija legitimnosti in sodobno ustavništvo [The Theory of Legitimacy and Modern Constitutionalism], Univerzitetna založba Annales, Koper 2014, pp. 397, 398 et seq.
[50] See Para. 26. of Decision of the Constitutional Court No. U-I-111/04.
[51] Cf. Para. 39. of Decision of the Constitutional Court No. U-II-1/10.
 
Type of procedure:
referendum
Type of act:
individual act
Applicant:
Metka Zevnik, Kranj in Aleš Primc, Ljubljana
Date of application:
03.04.2015
Date of decision:
28.09.2015
Type of decision adopted:
decision
Outcome of proceedings:
annulment or annulment ab initio
Document:
AN03847