European Western Balkans

Serbian electoral reform: Improved national minority representation or tactical move against boycott?

National Assembly of Serbia; Photo: Wikimedia Commons

This article was originally written in Serbian

When the Law on the Election of Members of Parliament in Serbia was amended on 8 February 2020, almost all public attention was drawn to the issue of electoral threshold, which was reduced from 5% to 3% of the total number of voters. Almost unnoticed, however, was the fact that the provisions of the law on the representation of national minorities in the National Assembly of the Republic of Serbia were also amended. As the Law on Local Elections was almost identically amended, the changes will have an effect on the representation of minorities in municipal assemblies as well.

Parliamentary representation of national minorities is of great importance for Serbia because of the European integration process. On the one hand, there are obligations arising from the Negotiating Chapter 23, within which the rights of national minorities are an important area. On the other hand, there are bilateral disputes concerning the rights of national minorities that Serbia has with its neighboring EU member states, which can block Serbia’s European path at any point.

In order to open Chapter 23, in 2016 Serbia had to adopt, in addition to the Action Plan for this Chapter, a special Action Plan for the Realization of Rights of National Minorities. Its goal was to addressed the problems identified in the third Opinion of the Council of Europe Advisory Committee on the implementation of the Framework Convention for the Protection of National Minorities.

The seventh chapter of the Action Plan for the Realization of Rights of National Minorities concerns the democratic participation, that is, the political representation of national minorities in the legislative bodies. “It is necessary to review the existing provisions regarding the election of representatives in order to avoid abuses against national minority parties, and to ensure more effective participation of less numerous national minorities in electoral bodies at all levels,” this section of the Action Plan states.

Do the amendments to the law address the most pressing problems?

At first glance, changes to the law seem to be heading in the right direction when it comes to representation of national minorities, as they address two of the biggest problems that the Council of Europe has recognized in this area: the representation of less numerous national minorities and the possibility of abusing the minority status.

Political parties and coalitions of national minorities have so far won seats in the National Assembly owing to the provision that they the 5% threshold does not apply to them in contrast to the other lists, and they need to cross the “natural threshold”, i. e. win around 0,4% of the citizens’ votes.

Amendments to the laws of 8 February stipulate that minority lists now receive additional 35% to the votes won, that is to the quotients when applying the D’Hondt system, making it easier for minority parties and coalitions to cross the natural threshold, but also to win more seats in the National Assembly than was the case previously.

Given the fact that, until now it has taken about 15,000 votes to pass the natural threshold and win a single seat in the National Assembly, it is expected that after these changes, the natural threshold would be around 11,000 votes at the usual turnout rate.

So far, only parties of the Hungarian, Bosniak, Albanian and Roma national minorities have managed to cross the “natural threshold” on their own and win seats in the National Assembly. The only exceptions are the two parties that managed to win seats without a clear minority profile.

The second amended provision concerns the process of determining which political parties and coalitions represent national minorities, which in previous versions of the law was left to the Republic Electoral Commission, provided that the parties are registered in the register of political parties as minority ones. It is now envisaged that the Republic Electoral Commission may also consult the relevant National Council of the national minority when making its decision.

However, experts speaking for EWB express doubt that these changes to the law will be able to adequately address the problem of representation of the minorities in the National Assembly.

According to Ksenija Marković, Research Associate at the Institute of Social Sciences in Belgrade, the biggest obstacle to minority representation remains the need for 10,000 signatures to be submitted, which has not been removed by these amendments.

“This was a requirement in the previous three election cycles and this was the biggest obstacle for the minorities to collect the required number of signatures and run in the elections, not the structure of the electoral system itself,” Marković said.

She recalls that a proportional electoral system is generally considered to favor the political representation of national minorities, as it allows a better reflection of social pluralism in the legislature. However, the experience of other countries with a first-past-the-post electoral system shows that if constituencies are designed to respect the ethnic structure of the population, more minority representatives are elected.

“The current obstacle in the form of collecting 10,000 signatures is not a matter of the election formula or structure of the electoral system, but of the electoral rules prescribed by law, and these rules are much easier to change than the provisions concerning the electoral system,” Marković said.

She does not expect that the adopted amendments will result in a significantly better representation of national minorities in the highest legislative body.

“The outcome can only be speculated about, but given the previous experience, there will be no significant changes, but we will only know this for sure after the elections,” Marković tells EWB.

Jelena Perković, an Associate of the Center for Regionalism, agrees, citing the necessary number of signatures for minority lists as the biggest obstacle to political representation of national minorities in the National Assembly.

“The stumbling block for national minority parties in several election cycles, the signature of 10,000 citizens to register their electoral rolls, remains the barrier to the election race of the most of the national minorities. Namely, the long-standing request to reduce the number of 10,000 signatures for the submission of minority lists has not been accepted”, Perković reminds.

She also questions the solution by which the Republic Electoral Commission determines whether a party is indeed a national minority party and whether its primary objective is to represent the interests of the national minority in question.

“I believe that the Republic Electoral Commission can determine the respect for the prescribed election procedures, but to give it the power to determine the representativeness of minority parties or coalitions is to limit the right to political action for all participants in the electoral process,” says Perković.

In her view, the provision that the REC can consult the relevant National council for this purpose is even more controversial.

“Even stranger is the need for National councils, the powers of which are regulated by law, not to mention limited, in four areas where minority rights are exercised. The introduction of the mechanism of arbitrariness by non-competent “structures” into basic human rights is an obvious threat to that right”, concludes Perković.

Contribution to the resolution of bilateral disputes?

The issue of representation of national minorities in the National Assembly is an important issue for Serbia’s European integration, also because of the bilateral agreements on the protection of national minorities that Serbia has with neighboring EU Member States, Croatia, Romania and Hungary. All these countries are interested in the issue of representing “their” minorities in Serbia and are able to put obstacles on Serbia’s progress towards the EU.

Particularly important is the bilateral dispute that Serbia has with Croatia regarding the protection of the rights of national minorities, which in part relates to the representation of the Croatian minority in Serbian legislative bodies. The Agreement on the Protection of the Rights of the Serb and Montenegrin Minorities in the Republic of Croatia and the Croatian Minorities in Serbia and Montenegro obliges both parties to “ensure” the representation of national minorities in representative bodies at all levels, which Croatia interprets as an obligation to guarantee parliamentary seats.

This dispute already had negative consequences, as it represented one of the reasons Croatia blocked the opening of Chapters 23 and 24 with Serbia in 2016. As Member States have a mechanism at any time to block negotiations over bilateral disputes, this issue may become relevant in the future.

Former President of the National Council of the Croatian national minority in Serbia Slaven Bačić tells EWB that Croatia insists on implementing a bilateral agreement that clearly defines the issue and believes that Croatia’s position remains unchanged.

“Croatia wants the full implementation of the agreement, that is, the word “secure” in Article 9 of the agreement does not mean the abolition of the census, the natural threshold, the increase of the electoral quotient and the like, but guaranteed seats in representative bodies of all levels, as implemented in Croatia. Although Croatia has been persisting on this issue, the authorities in Serbia have so far not shown their willingness to implement this part of the agreement”, Bačić said.

Jelena Perković agrees with this assessment, believing that, while Croatia still had no official statements, it can be assumed that it will continue to insist on the implementation of Article 9 of the bilateral agreement related to this issue.

“Countries in the region with which bilateral agreements on the protection of the rights of national minorities have been signed, Croatia, Hungary and Romania, have already expressed dissatisfaction at the meetings of the Intergovernmental joint commission when it comes to the political representation of their minorities at all three levels of government,” says Perković.

She reminds that members of the Hungarian minority in Serbia do not have a problem with political representation in the parliamentary life of Serbia, but that the Croatian community constantly expresses its dissatisfaction with political participation, as it is the fourth largest in Serbia, but with marked territorial dispersion, forced to enter electoral coalitions with other parties.

“All three countries in their parliaments have a model of ‘guaranteed mandates’ for members of national minorities, and accordingly, there is an expectation that Serbia incorporates such a model of political representation into its political practice, which, in the opinion of experts, requires far-reaching changes in Serbia’s political structure and, above all, the Constitution”, Perković said.

Ksenija Marković also does not expect that these changes will satisfy those countries that have a dispute with Serbia regarding the representation of national minorities, and especially not Croatia as a country with which this issue is particularly sensitive.

“Croatia was clear: they want a reserved seat in the parliament for their minority, and this is not that measure. Representatives of the Croatian minority are still in the National Assembly – Tomislav Žigmanov (Democratic Alliance of Croats in Vojvodina) has joined a coalition with the majority party, as he did before. Despite that, they explicitly demanded this measure again”, Marković recalls.

A well thought out strategy or response to the boycott?

The fact that the law on the election of deputies was passed without a public debate just two months before the regular parliamentary elections raises the question of how well those changes concerning national minorities are well thought out, and how much the attempt is made to exercise the direct interests of the authorities in anticipating the boycott of the elections by the majority of the opposition.

Through the Action Plan for the Exercise of National Minority Rights, Serbia has committed itself to conducting a comparative legal analysis of practices in the EU, identifying the best models for Serbia and then putting them in place. Based on the latest available report on the implementation of the Action Plan of December 2019, none of these activities has been fully implemented, giving the impression that the latest changes were introduced outside the agenda established by the Action Plan.

According to Jelena Perković, the changes to the law were made because of the threat of boycott, and the speed with which they were approached will be proportionate to the dissatisfaction that would accompany its implementation by both majority and minority parties.

“The expressed political will to amend the law is guided by months of announcements of the boycott of the elections and seeking a way out of the possible illegitimacy of the future election result. Therefore, it is not surprising that there is no broader political debate about the underlying mechanisms that determine election results”, Perković said.

Ksenija Marković also does not believe that changes to the provisions of the law regarding national minorities represent any well-thought-out strategy and reminds that lowering the census from 5% to 3% was a response to the boycott.

“I don’t know if there were any agreements, but I know that there was no public debate and there was no public debate about this,” Marković says.

Slaven Bačić shares a similar position, seeing a connection between this change and the announced boycott of the opposition.

“It seems to me that this was just a piece of the pre-election strategy of preventing the boycott of elections and securing the formal legitimacy of the new parliament, which in this case concerns national minorities”, Bačić concludes.

As the holding of the elections scheduled for April 26 is postponed due to the introduction of the state of emergency on March 15, we will likely see the implementation of new measures in practice in the second half of the year.

It remains to be seen whether the opposition’s decision to boycott parliamentary and local elections will remain in force, and whether one of the effects of the legislative changes will be a greater representation of national minorities in the National Assembly of Serbia and in municipal assemblies. This could benefit the minorities themselves and the European integration process, but also help the Serbian authorities in the short term by reducing the boycott effect.

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