Ustavnopravne meje referendumske demokracije. Ob odločbi US RS št. U-I-111/04-21 in "Primeru džamija"

slovenian

2005

IUS SOFTWARE d.o.o.
(Obvezni izvod spletne publikacije)

Author, who also prepared a constitutional study on the constitutionality of the referendum concerning the construction of the Islamic religious center in Ljubljana, the capital of the Republic of Slovenia, and to which seven (out of eight) judges of the Slovenian Constitutional Court consented in the Court's majority decision, as a scholar continues his work in this article and makes commentary and analysis of the latest Court's decision. He starts with the argumentation on constitutional reasons why the Court was able to consider the substantial constitutionality of the referendum over the constitutional evaluation of the city government ordinance about the notice of the referendum. He emphasizes the fact that there is no other way established by laws for the local government to initiate constitutional review in such cases. And the Court agreed. Author analyses the substantive aspect of the referendum initiative, also with the use of the comparative constitutional law. He asserts the uncon-stitutionality of such referendum, considering all of the circumstances in the present case. In the center of this referendum initiative was the written opinion of its submitters that by establishing more oratories, which in real life look as reconstructed flats and basements, the State sufficiently fulfils constitutional standards and responds to its constitutional duties concerning the religious freedom of the Muslims living in Slovenia. Submitters also believed that voters should decideby a majority vote on appropriateness and sufficiency as far as performing of worshiping of God for Muslims is concerned. There were undisputed evidence presented to the Court that voters have given their signature to the referendum initiative in accordance with their believes that they are opposing the construction of Islamic religious center and not to the enforcement of some technical city ordinance. Author and the Court agreed that this kind of reasoning and legal logic is unconstitutional. Article gives theoretical constitutional analysis of the problem of purpose, goal or causa, being followed by a certain lawmaking act, either made by a regular lawmaking body or by voters as ad hoc lawmakers through referendum. In presented case, such purpose or goal was unconstitutional and the Court used strict scrutiny test when deciding on constitutional rights of the Muslims as members of the religious minority. The author also gives his constitutional evaluation of the relationship between Islamic religious minority and the public majority from the aspect of the constitutional provisions on equality of religious groups, freedom of consciousness, freedom of religion, protection of human dignity etc. At the end of article he represents the key elements of the Court's reasoning why this referendum initiative was unconstitutional and he emphasizes his consent with the Court's majority decision.

26.01.2021