Performance of regular duties by the Prime Minister and ministers in accordance with Article 115 of the Constitution of the Republic of Slovenia
The term of office of the Prime Minister or an individual minister or multiple ministers can cease in any of several ways, including and in particular due to a vote of no confidence in the government (Article 116 of the Constitution), a failed vote of confidence in the government (Article 117 of the Constitution), resignation or impeachment, and such cessation regularly takes place when the new sitting of the National Assembly is formed after an election. In Article 115, the Constitution stipulates the power and obligation of the Prime Minister and ministers to "perform their regular duties" until the election of a new Prime Minister or the appointment of new ministers. As the Constitution does not define the term of performance of regular duties in more detail, this constitutional provision should be interpreted in the spirit of its meaning, especially with regard to the main functions that, in accordance with the Constitution and legislation, belong to the holders of these functions.
It is necessary to define the concept of regular duties in individual segments for which the government or ministers are responsible:
1. Projects of new laws and draft laws that had already been in the National Assembly at the time when duties became limited to regular duties.
One of the key duties of the government, and within it of individual competent ministers or ministries, is also the drafting of proposals of new laws or amendments to the existing laws. Proposing new laws (the same applies to substantial interventions in the existing laws) and forwarding them to the National Assembly undoubtedly goes beyond the concept and content of performance of regular duties in accordance with Article 115 of the Constitution. With its legislative proposals, the government implements the political guidelines of the government and at the same time of the administration it governs which, in accordance with the Constitution, is undoubtedly the duty and power of the government that cannot be performed under the restriction that it may only perform regular duties. It clearly follows from this that the government cannot, in principle, adopt and submit new legislative projects to the National Assembly for further legislative procedure when performing regular duties. An exception is listed below.
In performing regular duties, the government may propose new laws in matters which, by their nature, can in no way be defined as the implementation of any policy in terms of party programmes, but which are inherently urgent, such as may be proposed in the event of natural disasters or other similar instances that also require prompt and urgent intervention in terms of adoption of legislative proposals. The Rules of Procedure of the National Assembly give special priority to such urgently required laws. Based on the above, we believe that the current government, which performs regular duties, must do everything necessary to prevent irreparable or difficult-to-correct consequences for the functioning of the state. In this context, in our opinion, there should be no obstacles for the government to intervene with proposals of laws in order to prevent the above-mentioned consequences. In our opinion, the same applies to changes to a budget that is already valid, if the changed situation requires such action to avert the irreparable consequences for the functioning of the state. However, it is necessary to examine beforehand whether the changed situation could not be dealt with in a different way within the possibilities provided by public finance regulations.
A little less restrictive approach could be taken when it comes to the laws needed to bring our legislation in line with European Union law. In our opinion, the government can propose laws to the National Assembly that are absolutely necessary for the timely transposition of European Union law into the legislation of the Republic of Slovenia or are necessary for the timely and correct implementation of European Union law. However, the latter should not open up content that is not related to the above and should not further redesign projects that would also interfere with the creation of policy in a particular field.
Regarding proposals of laws that had already been in the National Assembly at the time when duties were limited to regular duties, it should be noted that they were adopted at a time when the government was still performing its function without the limitation on the performance of regular duties. This means that the government and ministers, as its representatives, can present and interpret a legislative proposal that had previously been adopted and proposed by the government, i.e. in this sense "advocate" something that had been previously adopted before the competent bodies of the National Assembly and the National Assembly itself. Such work, and especially highly professional work, for which substantive decisions were formed before such a situation occurred, does not exceed the framework of performance of regular duties in accordance with the Constitution.
A special question in relation to such legislative projects is that of the submission of amendments by the government. The same should reasonably apply to these as to the proposing or non-proposing of new legislative projects.
2. Adoption and issuance of implementing regulations (ministers and government)
Implementing regulations, which due to their legal nature in accordance with the Constitution cannot be issued without a legal basis for the issuance of an implementing regulation in a law, and certainly not outside these legal conditions and frameworks, should be divided into two groups in the context of the constitutional provision on performance of regular duties:
- a) regulations, the issuance of which is already explicitly provided for and determined in an individual law, so that their issuance means for the body responsible for it (government, minister) a pre-determined duty to fulfil the law (explicit authorisation in the law);
- b) regulations issued by the competent body (government, minister) at its own discretion, when it deems in a specific case that this is necessary for a law to be implemented (general authorisation from the Government of the Republic of Slovenia Act and the State Administration Act).
Taking into account individual types of cases, we believe that, within the first group of implementing regulations issued on the basis of an explicit authorisation in law, a distinction should be made between those executive regulations issued anew (regulating matters that have not yet been regulated) and those amending an existing implementing regulation. The first set of regulations represents the statutory obligation of the government or the minister to issue a regulation that was envisaged and enacted when the law was adopted. The issuance of these regulations can therefore be considered the performance of regular duties in the sense of Article 115 of the Constitution. However, if a certain matter is already regulated by an implementing regulation and the legal obligation of the body responsible for the issuance of an individual implementing regulation has already been fulfilled, the amending of such a regulation or the issuance of a new regulation on the same basis is not necessarily a regular duty. In these cases, it would be appropriate to substantially assess whether such a change is necessary from the aspect of undisrupted operation of the state and its subsystems or undisrupted implementation of legislation, or whether this is the introduction of new policies and starting of major and important activities that are not necessary for the functioning of the state. Based on the above, a change of an implementing regulation or issuance of a new implementing regulation that would completely replace a regulation that already regulates the same social relationship may be a regular duty, but in this case an explanation is needed pertaining to the above-mentioned necessity to issue the regulation.
The issuance of other types of implementing regulations, to a certain extent, means independent decision-making, albeit within the framework and on the basis of law, and thus possible relatively free creation of the content of a certain policy, albeit only at the executive level. For these types of regulations, we believe that they should not be admissible in principle in the course of performance of regular duties, while it would be possible and admissible to issue such a regulation if this is clearly dictated and required by the rule of law from the point of view of technical, safety or other implementation of a law with an implementing regulation regarding individual issues. The admissibility of the adoption of that other type of implementing regulation therefore requires that an individual case is specifically and substantively assessed and, in that connection, that it is determined as to whether such a regulation could still be regarded as part of the performance of regular duties.
In our opinion, there should be no obstacles to the government and ministers (with the appropriate legal basis) to issue, during the performance of regular duties, implementing regulations that are necessary for the timely transposition of European Union law into the legal order of the Republic of Slovenia or are necessary for the timely and correct implementation of European Union law.
3. Staffing and other issues
Ministers have the predominant power to propose, while the government has the power to make decisions on staffing issues, appointments, dismissals, replacements, etc. For positions within the staffing competence of ministers and the government, legislation considers as legally relevant the appropriate and prescribed expertise, as well as work experience and similar professional and work references. The limitation to the performance of regular duties should therefore not legally constitute an obstacle to the continued regular performance of all work of the government and ministers related to regulating current personnel issues and filling of individual positions. In accordance with the case law (decision of the Supreme Court of the Republic of Slovenia, ref. No. X Ips 280/2009, of 1 June 2010), the term "regular duties" referred to in the provision of Article 115 of the Constitution is an indefinite constitutional term, which should be understood in such a way that during this time the government or the minister takes only urgent decisions, do not start major or important activities anew, do not take final political decisions, except those that are strictly necessary for the functioning of the state and must be interpreted restrictively. In accordance with case law, in assessing whether the specific case is a current staffing issue it is therefore necessary to consider in particular whether and why the decision in this case is necessary for the needs of the functioning of the state (in the opinion of the service, this includes the state as such, state authorities and other organisations in respect of which the government or the minister has competences in the field of staffing). Based on the above, in the opinion of the service, staffing that ensures the continuous functioning of the state and its organisations or systems, is permissible. A similar conclusion regarding the scope of regular duties, which otherwise related to a different case, also follows from the judgement of the Administrative Court of the Republic of Slovenia, ref. No. I U 606/2013, of 26 September 2013.
The period when the government performs only regular duties should not mean in any case that the regular work of the government and ministries completely stops, but that it should be ensured that the government and the state function completely normally during this time. The essence of the limitations posed by the concept of regular duties is that, during this time, the government should not undertake new legislative projects, introduce new policies and adopt new strategic directions, and engage in activities that could in any way indicate abuse of powers. However, in accordance with the restrictive interpretation of regular duties, it is permitted to perform work that is necessary from the point of view of the undisrupted functioning of the state and its subsystems during the period when the government performs regular duties. However, all activities that deviate from normal daily work should be avoided when performing regular duties.
We propose that the above be considered as a recommendation for assessing the correctness of an individual decision as to whether a matter still falls within the scope of regular duties. When making decisions, the question of whether they are justified must be carefully considered, and they must be explicitly explained from the aspect of the question of whether the matters concerned fall within the scope of regular duties.