All contemporary democracies are based on the principle of popular sovereignty. Within a democratic state, popular sovereignty can be exercised directly or indirectly. Among the various forms of direct democracy provided by the Slovenian Constitution, the referendum certainly has the highest legal and political weight as it allows the voters to decide on the most important social issues, thereby limiting the power of the parliament.
By means of a legislative referendum, voters give final decision on an act adopted by the legislature. Due to its importance and complexity, the institute of the legislative referendum is associated with as many as three rights protected at the constitutional level, namely the right of initiative of the voters to call a referendum, the right to demand the calling of a referendum and the right to vote in a referendum. Effective protection of referendum rights is a prerequisite for a fair conduct of the referendum process and a legitimate referendum decision. In order to ensure the effective protection of individual referendum rights, the constitutional review of the legislative referendum is a necessary element of any referendum arrangement.
The constitutional review of the legislative referendum is a collective denomination for all forms of legal review carried out by the constitutional or other courts or bodies which are competent in each country for the review of the constitutionality of regulations, procedures and decisions in connection with the institute of the legislative referendum. In terms of the content of the review, the constitutional review of the legislative referendum is abstract and concrete. The abstract constitutional review of the legislative referendum comprises the assessment of the constitutionality and legality of all the regulations governing the legislative referendum and in practice constitute the basis for the implementation of a concrete referendum. The concrete review of the legislative referendum is the review of the constitutionality and legality of the acts, referendum process, actions and decisions of the competent authorities, issued in connection with a particular legislative referendum on a particular act. Everything that applies to the process of assessing the constitutionality and legality of the regulations in constitutional courts applies also to the abstract constitutional review, with the exception that the subject matter of the assessment is the regulation governing the legislative referendum. Due to the large number of forms of constitutional review of the legislative referendum and the various effects of this review, the concrete constitutional review of the legislative referendum is far more complex than abstract review. The interface of all forms of constitutional review of the legislative referendum is the fundamental principles which need to be taken into account both in the normative regulation and in the implementation of the constitutional review of the legislative referendum in practice. The fundamental principles of constitutional review of the legislative referendum thus include the general and procedural principles of the constitutional review of the legislative referendum and the material principle of constitutional democracy.
In the broadest sense, all forms of constitutional review of the legislative referendum have a common goal, namely to strengthen the confidence of voters in the fair conduct of the referendum. In the narrower sense, there are several objectives of the constitutional review of the legislative referendum, namely to ensure the effective exercise of referendum rights, to prevent the referendum from being called if all the conditions have not been met, to ensure compliance with the rules of the referendum process and to ensure the credibility and fairness of the referendum outcome.
The constitutional review of the legislative referendum in Slovenia, in consideration of the implementation periods, is carried out as preliminary review, as review of the process during the implementation of the referendum and as a follow-up review. Within the framework of the preliminary review, the right of initiative of the of the voters to call for a referendum and the right to demand the calling of a referendum are protected; within the context of review during the referendum, in particular, the right to vote in a referendum is protected. Within the framework of the protection of the right to demand the calling of a legislative referendum, we also include the assessment of the admissibility of referendum decision-making. The reason for this inclusion is that the right to demand the calling of a referendum is already very limited at the outset due to the constitutionally established prohibitions and restrictions of referendum decision-making.
All forms of constitutional review of the referendum in Slovenia are discussed in detail in the doctoral dissertation and proposals for solutions, which represent the de lege ferenda basis for a more appropriate regulation of constitutional review, are given. These proposals have been designed taking into account the regulatory framework and the practice of applying concrete constitutional review of the referendum in some foreign countries. The deficient, in certain instances vague and inconsistent regulation of the constitutional review of the legislative referendum in Slovenia is one of the major weaknesses in our referendum arrangement and, at the same time, it has been a reason for the constant problems of the National Assembly and the Constitutional Court in the course of every legislative referendum. The arrangement of the constitutional review of the legislative referendum at the legislative level should therefore be fundamentally changed, while it is essential that the Constitution gives the legislator plenty of room to regulate this matter. The legislator will have to alter some of the provisions of the Referendum and Popular Initiative Act in order to comply with the amendment of the Constitution of 2013, while also having the opportunity to amend and improve the regulation of the constitutional review of the legislative referendum.
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