European Western Balkans

How Serbia violated Venice Commission standards by lowering electoral threshold

Election day in Serbia; Photo: Tanjug

The long-awaited reform of the electoral system in Ukraine was finally adopted in mid-2019. In line with its obligations under the Association Agreement with the EU, citizens are going to be able to vote directly for MPs on on open electoral lists, which was one way to resolve widespread practice of purchasing the mandates from the parties. Start of application: December 2023.

When it comes to the EU, a major reform of the electoral system within a Member State took place in Hungary in 2011. Although the government of Viktor Orbán has been repeatedly accused in the coming years by international organizations and institutions of the European Union of collapsing electoral conditions and the rule of law, in this case the parties in power and the opposition had a full three years to adapt to new circumstances, as the regular parliamentary elections were held in the spring of 2014.

“It is important that the rules are known in advance so that all electoral actors can align their behavior and strategies with the incentives provided by an electoral arrangement. Comparative analyses show that different institutional frameworks require different behavior from actors”, Dušan Vučićević, an Assistant Professor at the Faculty of Political Science in Belgrade and an expert in electoral systems, tells our portal.

That is why, he says, it is a good democratic practice that a change of key electoral institutes does not happen in an election year, and if it does, it should be the result of a broad consensus of all relevant electoral actors. The recent lowering of electoral threshold in Serbia does not fulfill any of these conditions.

Fastest in Europe

The chronology of lowering the electoral threshold in Serbia is quite short: on 10 January, Politika daily, citing a source from “top authorities,” reported that for the first time since 1992, the electoral threshold would not be 5% but 3%; on 21 January, the draft law was already in the process and the voting was finalised on 8 February, in less than a month.

It is true that the adoption of this law was preceded by public debate on the elections – but nobody ever spoke of lowering the threshold, as confirmed by numerous participants. Since the regular parliamentary elections have been announced for 26 April, the change of this element of the electoral system was finalised exactly 78 before going to the polls, both at the state and local level. In comparison, citizens of Ukraine will have more than four years to prepare for the new conditions.

Justification for the lowering of the electoral threshold was formulated by the MPs of the ruling Serbian Progressive Party in the following way: “…this will allow for the electoral will of the citizens to be more adequately reflected on the new parliament and enable that the electoral will of the citizens which is not overwhelming still be politically articulated and represented appropriately in the National Assembly, which raises the level of democracy of the electoral process itself”.

And in yesterday’s article for EURACTIV, President of Serbia and Serbian Progressive Party Aleksandar Vučić stressed that the goal of the bill was to increase the representation of a wider range of political parties, stressing that it would only hurt his own party.

However, the breakneck speed in which the threshold was lowered has already sparked numerous comments by opposition politicians and analysts, all of whom have pointed out the same – that the aim was to mitigate the effects of the boycott by allowing smaller parties less critical of the government to enter parliament.

Read also: Return of the mediators: What is the state of electoral reforms in Serbia?

Thus, political scientist Boban Stojanović described the move as a “desperate attempt of the government” in the context of the boycott, while the boycotting Alliance for Serbia and Free Citizens Movement assessed that this was intended for the “satellites of the government” to enter parliament and ensure its legitimacy.

Regardless of the motives, the way the reform was implemented violated the standards of good practice, Researcher of the Center for Research, Transparency and Accountability (CRTA) Tara Tepavac told European Western Balkans.

“Changing the basic preferences of the electoral system just before the election is by no means in line with international standards of good practice. For example, the Code of Good Practice in the Venice Commission Elections explicitly states that no major changes should be made to the election rules in the year in which the elections are held”, Tepavac points out.

She adds that these changes concern the rules that have not been discussed at all in the dialogue between the government and the opposition over the past few months, in which her organisation has also participated, thus undermining the certainty and security of the electoral process, deepening the tension and the crisis of confidence.

What the Venice Commission says about changes to the electoral system

A body of the Council of Europe made up of legal experts dealing with democracy, the rule of law and human rights, known in the media as the Venice Commission, adopted an opinion on good practice as early as 2002, together with the recommendations for its implementation.

“The stability of the laws is crucial to the credibility of the electoral process,” the Venice Commission stated, pointing out that, if this is not respected, the voters can conclude, “that electoral law is simply a tool in the hands of the powerful and that their own votes hold little weight when it comes to election results”.

Changing electoral systems is not a bad thing in itself – they can also be improved – but it is harmful to change them frequently or on the eve of (less than one year before) elections, the Commission is clear.

“Even when there was no intention to manipulate, the changes will appear to be conditioned by the immediate interests of the political parties,” experts said.

The electoral system, of which the electoral threshold is a crucial part, is one of three elements that are often considered to be decisive factors in electoral conditions, and which must be paid attention to in order to avoid manipulation in favor of a party in power, recommended this body of the Council of Europe, to which Serbia has belonged since 2003.

Other international organisations focused on democracy and elections will also hardly be able to ignore these developments. As Dusan Vučićević reminds, in the last thirty years, there has been an increasing number of such specialized international organisations and institutions that are closely following the electoral reform processes and do not favour the hasty, reckless and unilateral changes to the electoral rules, especially just before the elections themselves.

In addition, Serbia is, of course, also a candidate for EU membership, which means that the functioning of democracy is closely monitored and reported on in European Commission’s annual documents.

Last year’s EC Report, which drew attention with a more critical tone towards the authorities, dealt with non-compliance with OSCE recommendations in the election campaign, as well as pressures on voters for which, according to the document, there are “credible allegations”.

It is expected that this year’s Report, on the basis of which Brussels officials make further decisions regarding Serbia’s European integrations, will include a section on lowering the threshold because, as even Enlargement Commissioner Olivér Várhelyi had said during his visit to Belgrade, it is not advisable to do so “unless there is a wide consensus”. In a parliament that has been boycotted by the majority of the opposition at the time of lowering the electoral threshold, it is difficult to talk about such a thing.

Ruling parties want greater representation – with more than 30 parties in the current parliament

Not only did the ruling party violate the recommendations of the Venice Commission on good electoral practice by speedily changing the law – the mere justification of the Serbian Progressive Party, that it wanted better representation in parliament, did not convince the experts.

“Reducing the electoral threshold alone is not enough to overcome this problem. The illusion of pluralism in the plenum that would be created by the entry of even more parties into parliament, under contested election conditions, will in no way contribute to a better representation of citizens”, says Tara Tepavac.

She points out that if Serbia wants to substantially improve the representativeness of parliament, comprehensive changes to the electoral system and the attitude of MPs towards citizens are needed. This raises the question of the type of electoral rolls, the number of constituencies, the number of signatures required for candidacy and other aspects.

It is helpful to point out that, in the 2016 parliamentary elections, 28 parties entered the National Assembly through twelve electoral rolls, and this number has increased in the meantime by MPs switching their party allegiances. Far from the need for additional representation, many analysts have been talking about the “hyper-representativity” of the Serbian parliament for a long period of time, and one of the proposed solutions has been to offer greater threshold for coalitions.

The problem, Tara Tepavac believes, is not in the number of parties, but in the gap that exists between citizens and MPs.

“Surveys of CRTA show that over 65% of citizens believe that MPs care more about the interests of their political parties than about the interests of citizens”, she says.

There is a growing trend in democratic countries around the world to bridge this gap, as indicated by Dušan Vučićević.

“Changing the electoral rules is more frequent, but it is mostly about fine-tuning individual electoral institutes that aim to increase the power of citizens in electing representatives, and the trend in recent decades is that reforms are moving towards different types of opening electoral lists. So, changes do not have to be comprehensive and most often they are not, but when changing certain elements of the electoral system, the interests of citizens, not political elites, should be put to the forefront”, he concludes.

Opening of electoral lists, something that Ukraine is currently going through and that has already been implemented by Croatia and Slovenia, from the current perspective of Serbia, looks like a distant future. If it does happen, it is most advisable to complete the reform process at least one year before the next election.

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