• 2022-01-14

Referendum - FOR, AGAINST or Boycott?

Nataša Vučković (Executive Director, Center for Democracy Foundation), author of the text for Novi Magazin weekly newsmagazine

Belgrade, January 13, 2022

The Constitution is the most important democratic, legal, political, and in our country, European, issue. The campaign for the referendum is rather meek, and the information we are voting on in the referendum is incomprehensible to the majority of the citizenry. Contradictory statements of government representatives just serves to confuse, as do the views of opposition parties, some which are for a boycott while others are for voting against. Experts are divided, and civil society organisations have differing views on the nature of constitutional change and the referendum. It is only the position of the professional judges’ and prosecutors’ associations that is clear and this is that the proposed amendments to the Constitution are a step in the right direction in establishing judiciary independence. In a sea of ​​inaccurate, superficial and irresponsible interpretation, in particular, those which appear on social media, news is spreading that the constitutional amendments proposed are in tandem with introducing the recognition of Kosovo's independence. The people are left to decide on things they understand poorly and of which they have little knowledge.

When is it the Right Time for Constitutional Change? 

At this time, when Constitutional change is underway, the current state of democracy is unfavourable. Parliament is a victim of the tyranny of the majority, reality is portrayed completely differently in the state-controlled and independent media, political dialogue has been reduced to tabloids, and the will, knowledge and patience required for quality public dialogue is often lacking. And it is democracy in parliament, free media and public dialogue that guarantee a democratic atmosphere in which constitutional amendment should be discussed. For this reason, many opponents of constitutional amendment find that this is not a good time to impose such change, and it would be better, they believe, to postpone the entire process until after the April elections are over. And, really, is this the right time to change the Constitution? The moment is not ideal, it is downright bad, in fact, but the time has come to change the Constitution in the area of justice: they are, in fact, already four years late!

As soon as the Constitution was adopted in 2006, talk arose of its need for amendment. At the time, the presiding government failed to seek out the opinion of the Venice Commission concerning the final draft of the Constitution, which is why the Monitoring Committee of the Parliamentary Assembly of the Council of Europe (PACe) asked the Venice Commission, as an advisory body to the Council of Europe, to evaluate the new Constitution. (When Serbia became a permanent member of the CoE, it agreed to subject its democratic institutions to the monitoring of the Council of Europe, which continues to this day). Even then, the Venice Commission pointed out the necessity to change the Constitution, inter alia, due to the excessive role of the parliament in judicial appointments, as well as the danger created concerning excessive control of political parties over the judiciary. However, soon after, instead of constitutional reform, judiciary reform began, which ended ingloriously, and was a waste of precious time. After 2012, the new National Strategy for Judicial Reform sets as a strategic goal the preparation of constitutional amendment that would lead to greater independence of the judiciary. Based on the Action Plan for the implementation of the Strategy, a special working group was formed to conduct analysis of all that needs to be changed in the Constitution and in terms of excluding the National Assembly in the process of appointing holders of judicial function. In January 2014, the special working group prepared the Report on Necessary Constitutional Framework Changes.^[1]And the Screening Report: Negotiating Chapter 23, insists on such an analysis and specifies that amendments should address, above all, the issue of the appointment of judges and prosecutors. Next, follows the adoption of the Action Plan for Chapter 23, which plans to adopt constitutional amendment by the end of 2017!

Bearing this set deadline in mind, experts, professional associations and civil society organisations have initiated discussions on the upcoming constitutional amendment, insisting on a broad debate that would include relevant actors and bring the whole process closer to the people. Representatives of all parliamentary political parties, experts and representatives of civic associations and professional organisations participated in the conference Democratic to Constitutional Reform organised by the Center for Democracy Foundation in October 2017.^[2] At the conference, the results of the survey Attitudes of the Citizenry and the Elites on Constitutional Change conducted by IPSOS were presented: it showed that only 4% of citizens believe the judiciary is independent, 34% that it is mostly independent, while 51% believe that the judiciary is completely politicised. Interestingly, although 37% of the population does not know who elects the judges, and 25% think they are elected by the Government, yet 54% of citizens believe that judges should be elected by a special body composed only of representatives of the profession! There is a high degree of agreement among the elite^[3] that stronger constitutional guarantees of judicial independence are needed (89%), just as the majority of the elite (74%) share the view of the citizenry, that they should be elected by representatives of the profession.

Given the manner in which the Constitution was adopted in 2006, the Screening Report: Negotiating Chapter 23 emphasised that it is “vital that the mentioned constitutional amendments and law be subject to a wide spectrum of consultations and public debate.” However, contrary to the expected democratic procedure, in 2018, the preparation of constitutional amendments was conducted undemocratically, with a pretend public debate that was cynically and overbearingly led by the Secretary of State of the Ministry of Justice. Relevant professional and civil society organisations refused to participate further in these discussions. The National Assembly was practically excluded from the process of preparing amendments, and the proposals of MPs were rejected, including the signatories of this text, that the Committee on Constitutional Affairs and Legislation and the Committee on European Integration hold public hearings. The Government submitted the text of the amendments to parliament in January 2019 which, from the very first drafts, has been bombarded with criticism. Luckily, under the influence of various factors, everything stopped at the level of the Committee on Constitutional Affairs and Legislation, without a plenary debate and decision, and there were no further steps taken until 2020. Then a new Judicial Development Strategy for 2020-2025 was adopted, which plans to end the process of amending the Constitution, and after a fairly inclusive debate with the participation of professional associations and civil society organisations, a revised Action Plan for Negotiating Chapter 23 was adopted, which set the last quarter of 2021 as a new deadline for the adoption of constitutional amendments! Maybe we rarely respect the deadlines we set for ourselves, maybe in this matter others, above all the EU, hold us to our word, but this constitutional change does take place at the planned and agreed moment. 

The Parliament, Political Dialogue and Constitutional Reform

As we have seen, the attempts made to amend the Constitution in 2018 and 2019 were a kind of mockery of the principle of democratic inclusive dialogue on constitutional reform. However, voluntarily or under duress, the Government learned certain lessons from the criticism it received at that time: in 2020, amendment preparation was properly left to the National Assembly and the Committee on Constitutional Affairs and Legislation; experts and civil societies called for the establishment of a special working group, and the parliamentary Committee formed such a group that included professors of constitutional law and representatives of judges and prosecutors; 11 public hearings were held throughout Serbia, all of which led the Venice Commission to assess that the process was “sufficiently inclusive and transparent”.

One of the often mentioned reasons to oppose constitutional change at this time is that the current composition of the National Assembly was elected via elections boycotted by opposition parties, so that its composition does not represent the Serbian people in the right way, that is, the claim is that the National Assembly “is illegitimate”. We do not know, of course, to what extent the composition of the Assembly would have differed if the opposition parties had not taken the decision to boycott the 2020 elections. As, apart from DS, SDS and Dveri, other new opposition parties (NS, SSP, PSG) failed to participate in any previous elections, thereby it is not possible to assume their strength in the electorate. One thing is for sure, of course, and that is that it would be better if the parliament was not almost completely deprived of the opposition, both when laws are passed and when the Constitution is amended. On the other hand, experience has taught us that an opposition does not in itself guarantee political debate on the topic of the Constitution or its quality, which was best demonstrated both during the adoption of the Constitution in 2006 and the judicial reforms that took place in 2009, and that ‘political will’, no matter whose it is, alone and without the habit of consulting, results in damage that takes years to repair. 

Having in mind the current composition of the parliament, in October 2021, the Venice Commission pointed out that the Government should invite the opposition to participate in the debate on constitutional amendment, but at the same time encouraged "both parliamentary and non-parliamentary opposition to take responsibility, contribute and participate in the process of constitutional reform, including the referendum”. Neither the Government nor the parliamentary majority have called on the opposition for dialogue. But it would be good if the non-parliamentary opposition were to get involved in the public debate on constitutional amendment, in a timely and active manner. Unfortunately, in the past, the political parties failed to participate more actively in discussions concerning constitutional change, with the exception of the Democratic Party, which, in 2017, prepared its alternative proposal relative to the area that regulates the judiciary. In addition to their main role, which is to participate in the elections, political parties should provide the population with political education, and to have an impact on the formation of public opinion through the values and political programmes they offer. A certain amount of responsibility falls on the political parties, mostly on those who are in power, but also on those in opposition, that the people do not understand what they are supposed to be choosing during the referendum, either because they are unable to recognise the mechanisms of separation of power or the judicial system, or because the referendum issue is unclear.

Today, some are calling for a boycott of the referendum, some are agitating for a vote against the proposed amendments. One gets the impression that voting for constitutional change during the referendum is viewed more as voting for or against Vučić. It is possible that the referendum is seen as a chance for the homogenisation of the opposition electorate, or as an opportunity to deprive Vučić and the SNS of the opportunity to gain points before the upcoming elections and, at least before the EU, to emphasise their otherwise unconvincing pro-European rhetoric. Every political action and attitude, even this attitude of the opposition, is justifiable if it springs from the value system and the political programme it stands for. If, however, the separation of power and the independence of the judiciary are important links in the chain where the opposition is concerned in terms of the development of a modern Serbian state and to the rule of law, then it is unclear as to why they see the referendum concerning the amendment of the Constitution more as an opportunity for party struggle and less as an opportunity to represent general interests.

Is the call to vote against in the referendum in line with the general interest to strengthen rule of law, independence of the judiciary, and even progress in the process of European integration, which the majority of this society has been in favour of for two decades already? There is also the idea that perhaps in this way, consciously or unconsciously, one actually contributes to this general goal by contributing to the success of the referendum in that higher turnout is achieved. 

Finally: What Amendments Are Being Made to the Constitution?

The previous issue leads us to the following key question - are the proposed amendments in the general interest or will these constitutional amendments mean the independence of our judiciary system? They won’t on their own, rather, this is just the first step. As "the constitution is the spirit, it is the institutions, it is the practice" (De Gaulle).

Basically, the relationship between the three branches of government is changing, primarily the relationship between legislative and executive government towards the judiciary, primarily in that the direct political influence of the legislative and executive government on the appointment of judges and prosecutors is waning and the institutional power of the High Judicial Council and the High Prosecutorial Council is increasing. The National Assembly will no longer appoint either the President of the Supreme Court or the Presidents of the courts - this function has been taken over by the High Judicial Council. The High Judicial Council will have a majority of 6 judges who are elected by judges and from whose ranks the President of the Supreme Judicial Council is appointed, who is also a member of the Council, but is deprived of the right to be its president. The Assembly elects four members of the HJC from among prominent lawyers by a two-thirds majority vote, which indirectly maintains its influence over the HJC.

The Supreme Public Prosecutor will be appointed in the Assembly, no longer at the proposal of the Government, but on the proposal of the High Prosecutorial Council. The High Prosecutorial Council (HPC) will consist of 5 public prosecutors appointed by the prosecutors themselves, but the Supreme Public Prosecutor (without the possibility of being the president of the HPC) and the Minister of Justice will remain within this Council, which is justified by the fact that the prosecutor's office does not have the same level of independence as the judiciary. Here, too, the National Assembly elects four lawyers for HPC Members. The objection that this decision reduced the number of prosecutors in the HPC in comparison to the currently applicable Constitution is fully justified.

The most important and serious objection refers to the solution that is applied when it is not possible to reach a two-thirds majority for the appointment of prominent lawyers, regardless of whether the parliamentary majority is lacking in number, or an agreement between the majority and the opposition cannot be reached. If the deadline for their appointment expires, a commission whose par excellence nature is political - it consists of the President of the Assembly, the President of the Constitutional Court, the President of the Supreme Court, the Supreme Public Prosecutor and the Ombudsman. It is this provision that leads us to the slippery slope that is our parliamentary practices, possible manipulation and, ultimately, the implementation of direct political will in the selection of prominent lawyers. However, judges make up the majority in the HJC, so lawyers influence need not be decisive. The situation differs in the HPC, where prosecutors are in the minority, if the Supreme Public Prosecutor is not taken into account.

Of course, this brings us to the issues of what these changes will look like in practice. The first challenge are the laws required for these changes to ‘take hold’. If there is no political and public dialogue concerning these changes, and, if the laws do not follow the set line of strengthening judiciary independence, amendments to the Constitution will remain without effect. However, even if the laws are sound, the independence of the judiciary will depend even more on the political actions of the Government and deputies, to the degree that they wish to and are able to refrain from manipulating the National Assembly and the judiciary and to allow them a constitutional role in the power-sharing system. Because full respect of the independence of the judiciary also means refraining from commenting on court decisions, budget independence, not to mention to what degree the police influence the results of the work of the prosecution, especially in combatting corruption and organised crime, whose tentacles reach various government structures. This will, of course, also depend on the judges and prosecutors. 

The EU and Our Constitution

Amending Serbia’s Constitution is also a European issue because rule of law is a key condition for further progress in accession negotiations. Yet, the Constitution will not be amended as a result of EU demands, but because we want our society and our country to conform to the best models that exist in the EU. It is fortunate that we, unaccustomed to division of power and without historical experience, neither in terms of parliamentary democracy nor judiciary independence, are being encouraged along this path by the Council of Europe and the European Commission. It is clear why government officials rarely discuss the link between constitutional changes in the judiciary, referendums and progress in accession negotiations - as their electorate is largely indifferent to European integration. It is surprising, however, that those who are not in favour of these changes, and are recognised by our public as advocates of Serbia's European path, do not see that postponing constitutional changes for a ‘more favourable’ time will further slow accession negotiations. Even more worrisome is the growing relativisation of the importance of the accession process, which has recently, and often during constitutional reform debate, emerged through a narrative, if not anti-European, then at least a Euro-sceptical or Euro-indifferent narrative toward Serbia's European integration process. This sends a bad message that Serbia's European future should be abandoned, due to, as it is argued, the Union cares not for Serbian democracy and rule of law, but also because of the current EU crisis and the uncertainty of enlargement dynamics at the moment, and therefore postponing this process (if constitutional change is delayed) is not particularly harmful. Such an approach may give Aleksandar Vučić exactly what he wants - to be left with the political space that allows him to remain the only representative of the idea of ​​a European Serbia!

These constitutional amendments are not perfect, they are not great even, but they are a step forward when compared to the current Constitution. Most participants in public debate generally agree on this. And in everyday life, and especially in political and state issues, we are usually left to decide between what is ‘evil’ and what is a ‘lesser evil’. That is why I am convinced that by voting for constitutional amendment, we demonstrate our civic responsibility toward the building up of the institutions, strengthening the role and importance of judges and prosecutors in our society, thereby ensuring a better platform from which we are able to exercise our rights. 

Nataša Vučković, Executive Director, Center for Democracy Foundation