European Western Balkans

Serbia’s constitutional reform: Professionalisation of judiciary trapped by politics

Constitution of Serbia; Photo: European Movement in Serbia

BELGRADE – The constitutional reform process in the area of the judiciary should bring more independence to the judiciary and the prosecution, and bring Serbia closer to the EU standards. However, the reform process so far has only brought more conflict between experts and politicians. While professional associations have accused the government of wanting to undermine the independence of the third branch of government, the government said the allegations were malicious. The new Parliament, following the 2020 election, will make the final decision, said Minister of Justice Nela Kuburović.

Svetlana Nenadić, Member of the Presidency of the Prosecutors Association of Serbia, explains that the process of amending the Constitution is stemming from Serbia’s commitment to the EU, as it is formulated in the Action Plan for Chapter 23. Nenadić believes that the biggest objections are that the reform process started late and without a desire for a substantive public debate.

“The public hearing was brief and blank. It was organised in a form that did not allow for a serious legal and professional argumentation. The media, with few exceptions, were not interested in reporting and exploring the subject of amending the Constitution. The general public was hardly aware that the Constitution is being changed or what the reasons for the change were. Also, the public debate regarding the amendment of the Constitution took place in the so-called “acrimonious environment” as described by the Venice Commission in its opinion. If we are amending the Constitution under the circumstances described, the question arises as to what we can expect from the Constitution, because the Constitution, as the supreme legal act of a state, is not only determined by its content, but also by the manner of its adoption,” says Nenadić.

The current constitution was adopted in 2006 in a two-day referendum and was supported by the three strongest political parties at the time – the Democratic Party, the Democratic Party of Serbia and the Serbian Radical Party. Serbia still had not signed the Stabilization and Association Agreement by then.

Svetlana Nenadić says that, 13 years later, the Constitution needs to be amended for two reasons.

“The first concerns the fact that the EU, in the accession process, requires Serbia to reduce its political influence on the judiciary, which is reflected in the way judges and prosecutors are elected. This request was formulated in the Action Plan of Chapter 23 which stipulates that the procedure for the election of judges and prosecutors should be detached from the Government and the National Assembly. The second reason is similar to the first one, related to Serbia’s need to improve the quality of the judiciary by reducing possible sources of political influence on judges and prosecutors,” Nenadić said.

Minister Kuburović dismissed all criticisms of the politicization of the judiciary through the constitutional reform as malicious.

However, Svetlana Nenadić stresses that it remains to be seen whether the constituent body will recognize the essence of the EU’s demand for depoliticization and the benefits that Serbia can derive from that.

“The worst-case scenario that may occur in the process of amending the Constitution is to miss the unique opportunity to improve the quality of the judiciary through a substantive depoliticization. There is a concern that we are on this path. We should not dismiss the possibility that changing the Constitution, will not only fail to lead to the depoliticization of the judiciary but on the contrary, it can lead to an even stronger covert political influence. As the Constitution seeks to be permanent, that is, it should not change frequently, the impact of bad constitutional amendments can take decades. In that case, the consequences for society, economy, civil and human rights can be painful,” Nenadić notes.

The non-parliamentary parties were against the 2006 Constitution at the time, and the experts are carrying on with primarily negative assessments.

The current “Mitrovdan” Constitution was adopted quickly, and lawyer Rodoljub Šabić says that even then it was clear that numerous objections could be made to the text of the Constitution, so there were numerous reasons to change it, but only one is sufficient – to strengthen the independence of the judiciary from politics.

Contrary to the political-European-technocratic mainstream conducting Serbia’s EU negotiations, Šabić argues that changing the constitution will not affect the EU accession process.

“Progress in the integration process must be sought in the real, factual sphere, in real changes visible, recognizable in the life of society and the state. Progress will not be able to be achieved by adopting various strategies, action plans or “cosmetic” changes in the legal system, adopting legal acts that are “excellent” but “just” not implemented. And especially not by adopting and implementing acts that, as much as they are accompanied by progress declarations, are retrograde, backward steps,” says Šabić.

And the battle for constitutional change has also had a media dimension, in addition to expert one. There was not much interest of the citizens nor the media.

Aleksandar Stankov, journalist and editor of Južne vesti sees transparency and lack of public information about such an essential topic as the change of the most important document of this country as the main objection to the constitutional process.

However, Stankov detects tabloids as interested in the whole process, all in the service of daily politics and diversion.

“In addition to being non-transparent, this process is also politicized. The professional associations had different ideas in comparison to the proposals of the authorities, but as usual, there was no common language. Instead of continuing the dialogue and finding a common and best solution, we have come to the situation where those who advocate the opposite view are dragged through the tabloids. The various labels and affairs are tagged on them. That draws everyone’s attention from the main points, which are better constitutional changes,” says Stankov.

And these changes are also important for the accession process, as Stankov thinks constitutional changes will nevertheless bring Serbia closer to the EU.

“Given the idea of Serbia becoming part of the EU someday, it is logical to harmonize the laws as well. However, the question is whether this will happen, and it depends first and foremost on the will of the ruling majority and their desire to truly reform society. Judging by the disagreements with professional associations and other political actors, it seems that this will be a difficult path,” Stankov said.

Svetlana Nenadic emphasizes that Chapter 23 envisages an obligation for the constitutional change, but, as she says, the chapter provides guidelines, but not the text of future amendments.

“Serbia, as a sovereign state, has the right to change the Constitution in the way it wants to, but if it wants to enter the EU, the changes should be in accordance with the guidelines in the Chapter 23.”

One part of the liberal and pro-European public in Serbia often criticizes official Brussels for “rotten compromises” and diplomatic indulgence for Aleksandar Vučić and the ruling Serbian Progressive Party. This political-diplomatic component and the lack of adaptation of institutions are often pointed out by Euro-critics within EU countries.

Nenadić also warns that the EU is a legal but also a political creation.

“Who and how assesses whether the text of the amendment will be in line with the EU requirements? Certainly, it will be up to the EU to decide. The EU’s assessment of whether future amendments will align with the acquis will depend on both the legal argument and the political interest of the EU at the time of the assessment. Therefore, any prediction about how the amendment of the Constitution will be evaluated by the EU is ungrateful, and whether, how and when constitutional changes will contribute to Serbia’s integration into the EU,” Nenadić concludes.

What is wrong and what is right with the changes proposed by the Government?

Who can claim that there is no progress in judicial reform? According to Minister Nela Kuburović, in an interview with Kurir in mid-August, “only someone who intentionally does not want to see this, who is malicious and engages in politics, not facts, can claim it.”

According to the minister, judges and prosecutors are least influenced by the executive branch and much more by colleagues, friends, court presidents or lawyers.

Lawyer Rodoljub Šabić says that what marked the whole process of changing the Constitution is a hypocrisy.

“In various incorrect ways, including by placing false facts about the alleged views of some foreign “relevant” bodies, e.g. the Venice Commission, the inferior views fabricated by the officials of the Ministry of Justice were imposed as the views of the experts. I share the opinion of many that the latest version of the amendment articulated by the Ministry of Justice is not in the line with increasing the independence of the judiciary,” Šabić claims.

He also added that the views of the experts – the Judges’ Association of Serbia and the Prosecutors Association of Serbia – were underestimated and ignored. And the experts stated that amendments are a step back.

“First, the amendments do not guarantee the elimination of the political influence over the judiciary. On the contrary, political influence survives, only its mode of action changes. Thus, political influence is shifted from the Government and the National Assembly to the judicial councils. The amendments foresee a reduction of judges and prosecutors in judicial councils and an increase in so-called prominent lawyers elected by the National Assembly. How prominent lawyers are being selected points to the possibility of political engineering in creating the composition of judicial councils,” states Svetlana Nenadić of the Prosecutors Association of Serbia.

“We have also advocated for the preservation of the existing composition of the judicial councils in which judges and prosecutors elected by colleagues have a majority. Unfortunately, our proposals for amending the Constitution have not been understood, nor have the suggestions that certain provisions of the Constitution should not be changed. Having this in mind, we are convinced that constitutional amendments will not contribute to improving the quality of the judiciary or the independence of the judiciary,” the Prosecutors Association of Serbia emphasizes.

Two bodies of the Council of Europe have pointed out this as well – the Consultative Council of European Judges and the Consultative Council of European Prosecutors.

Rodoljub Šabić states that he supports the views of the Prosecutors Association of Serbia, but does not believe that accepting their proposals would change anything. Namely, the essence of the problem lies not in the normative sphere, says Šabić, but in the dominance of the anachronistic, insidious concept of managing society.

“It is a concept in which politics takes full precedence over law, will over the law,” emphasises a man who defended the independent institution of the Commissioner for Information of Public Importance for a decade and a half.

“Until the awareness that the society needs to function in accordance with the laws enforced by independent institutions becomes dominant in the society, no partial normative changes will be made and things cannot change significantly for the better, even if they are made in areas as important as the judiciary,” points out Šabić.

Kosovo as a “fig leaf” for judicial reform or vice versa?

As long as the debate on constitutional amendments related to the judiciary continues, there is also speculation among some part of the public that the Constitution is being changed because of Kosovo and the preamble, and that “judicial changes” are just an addition.

Goran Ilić, the President of the Prosecutors Association of Serbia, believes that Kosovo in more important to citizens than the independence of the judiciary.

“Unfortunately, citizens have no particular interest in the process of changing the provisions of the Constitution on the judiciary. They only get confused when it is hinted that constitutional changes could also be affected by the preamble to the Constitution, which stipulates that Kosovo and Metohija have the status of a province with essential autonomy,” Ilić said.

Constitutional reform is not hampered by Kosovo, but it is making it difficult, according to journalist Aleksandar Stankov.

“On the one hand, it does not have to be so if nothing about Kosovo changes. But it is clear that some part of the world is seeking a solution to this issue, and any change would have to be constitutionally resolved – whether in terms of amending or omitting the preamble, it will depend on the final solution. Whatever happens and whatever the deal may be, the governing structure will seek the support of the people and call a referendum on the issue of Kosovo, although this is something that they should take responsibility for,” Stankov notes.

The proposal to amend the Constitution must be approved by the National Assembly, by a two-thirds majority of the total number of deputies, followed by the adoption of an act to amend the Constitution – it is also adopted by a two-thirds majority, with the possibility of a referendum.

Whether or not there will be a referendum, Stankov says, depends on the voters’ mood.

“There is also a chance that all constitutional changes, including Kosovo, will be part of a referendum question, and that it will probably depend on the results of opinion polls at the time of the referendum, which should certainly be expected,” Stankov concludes.

This article has been published in the context of the project “Support for independent reporting on European integrations of Serbia with a special emphasis on Chapters 23 and 24”, which is being implemented in cooperation with EUROPEUM Institute for European Policy and with the support of the Ministry of Foreign Affairs of the Czech Republic. The views expressed in this article do not represent those of the EUROPEUM Institute or those of the Ministry of Foreign Affairs of the Czech Republic.

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