National Assembly of Serbia is set to meet early next week, more than 40 days since the state of emergency was announced. It is expected to retroactively approve all measures enacted in the meantime, including the introduction of state of emergency itself.
Only a small number of citizens were unnerved by the lack of parliamentary during this period, even though it is assumed that limitations of the constitutionally guaranteed rights and freedoms, as well as the extraordinary spending of huge sums of money, should be debated by MPs who are to, now more than ever, hold the Government to account.
According to our interlocutors, the decision not to hold a parliamentary session so far is a political one, not a legal one, as no adequate explanation for why the National Assembly could not meet has been provided, especially considering that other parliaments on the continent continued their work. And if it can meet, the role of the National Assembly in a state of emergency is clear – vote on its imposition and control the executive.
However, the fact is that nobody was shocked by what has happened in recent weeks points towards the long process of the collapse of parliamentary democracy in Serbia, which is not over.
No formal explanation for why the Assembly could not declare the state of emergency in March
Since the first case of Coronavirus disease (COVID-19) in Serbia was registered on 6 March and a pandemic declared by the World Health Organization (WHO) six days later, the Ministry of Defense submitted the assessment of security risks and threats to the Republic of Serbia and its citizens to the President of the Republic Aleksandar Vučić on 14 March, in accordance with the Article 88 of the Law on Defense of the Republic of Serbia.
“The President received the Ministry of Defense’s assessment tonight, and it is up to him to decide how and will he use his constitutional powers and put into service all the security services in our country to preserve the life and health of all Serbian citizens”, Defense Minister Aleksandar Vulin said at the time.
The next step was for the Prime Minister Ana Brnabić, to whom the Ministry of Defense’s assessment was also addressed, and the President Vučić to jointly submit a proposal for a declaration of a state of emergency to the National Assembly, which has the primary authority to declare a state of emergency, based on Article 105 of the Constitution.
Instead, acting upon the Article 200 of the Constitution, which alternatively allows the President of the Republic, the Speaker of the National Assembly and the Prime Minister to decide on a state of emergency, if the National Assembly is “unable to meet”, a state of emergency is declared in the territory of the Republic of Serbia 15 March.
Why the highest representative body of the citizens, who are the sole holders of sovereignty in the country, was unable to meet, the public found out later, at the request of a group of eight opposition MPs, who demanded the scheduling of the National Assembly session.
In response, National Assembly Speaker Maja Gojković said that, given the epidemiological situation and the recommendation not to convene gatherings of more than 50 people, she suggested that the President, Prime Minister and herself should decide to declare a state of emergency.
In the view of Professor Violeta Beširević, PhD, from the Faculty of Law, Union University, in declaring a state of emergency there was a violation of the constitutional principle of the rule of law, because, as she explains, a safe way could have been found to hold the session in the appropriate open space, as the Government of Serbia sessions have been held outdoors in the past. The session could also have been held in the Assembly building itself with all security measures, with the physical separation of MPs, as was done in France, when the French Parliament met only to declare a state of emergency.
“It should be kept in mind that the Decision on the introduction of a state of emergency did not explain why the state of emergency was introduced or why the National Assembly was not able to meet, which undermines the principle of the rule of law in so far as it is exercised by obeying the Constitution and law (Article 3 of the Constitution). Without justification of the Decision on the State of Emergency, it is impossible to determine exactly why the National Assembly was not able to meet”, concludes Prof. Beširević.
Sofija Mandić, a lawyer and human rights activist at the Center for Judicial Research (CEPRIS), shares a similar opinion. According to her, the National Assembly had to meet to discuss the need to declare a state of emergency, as well as any measures to restrict citizens’ rights.
“It should be kept in mind that, at the time of the announcement of the state of emergency, not even an epidemic was declared on the territory of the Republic of Serbia. That was carried out only five days later – on 20 March”, Mandić said, adding that even if the epidemic had been declared on time, there could have been safe health conditions in which the National Assembly could safely meet, even if outdoors.
Prof. Beširević confirmed for our portal that the Speaker of the National Assembly, following Article 244, paragraph 1, item. 5 of the Rules of Procedure of the Assembly, is authorized to inform the President of the Republic and the Prime Minister that the National Assembly is not able to meet, but it is also of the opinion that a way could have been found for the parliament to confirm this decision.
“If such an assessment is made by the Speaker, the provision of Article 200, paragraph 5 of the Constitution shall apply,” Beširević said, adding that she is of opinion that, with the use of modern technology and communication means, the way to confirm the state of emergency within 48 hours, a preferred deadline in the Constitution, could have been found.
There have been no legal obstacles for the National Assembly to meet
It is this provision of the Constitution which ensures that, although a state of emergency has been declared, the National Assembly has not been “removed from the agenda”, on the contrary. The National Assembly must confirm the decision on a declaration of emergency within 48 hours or when it has the opportunity to meet.
What has prevented the National Assembly to meet, confirm or not confirm the decision to declare a state of emergency and derogation from human and minority rights? Judging by the Constitution and the laws – nothing.
Although the National Assembly was dissolved by the decision of the President Vučić after he called the parliamentary election on 4 March, now that a state of emergency has been declared, its full competence has been re-established, lasting until the end of the state of emergency, judging by Article 109 Of the Constitution. Also, Article 106 of the Constitution of Serbia stipulates that, in a state of emergency, no one needs to convene a National Assembly because upon a declaration of a state of emergency it meets without a call.
In addition to these legal bases, Prof. Beširević points out that in Article 200, paragraph 3 of the Constitution, which states that “during a state of emergency, the National Assembly meets without a special invitation and cannot be dissolved” means that a certain number of MPs or the Government are not required to request a session of the National Assembly Assembly, as in the case of extraordinary sessions, and it can be interpreted that the Speaker of the National Assembly doesn’t need to convene a session under Article 104, paragraph 2 of the Constitution.
“The constitution is vague. It is interesting to note that the Rules of Procedure of the National Assembly, in Article 244, provides that in the event of a state of war or emergency, the Speaker of the National Assembly determines the time and place of the National Assembly session, since it is nevertheless necessary for someone to inform the MPs that the session will take place”, Beširević says.
She concludes that, according to the aforementioned constitutional and legal provisions, the Assembly has the full capacity to decide on the state of emergency.
Mandić notes that the Government and all other executive bodies have been able to meet, while this has not been the case with the National Assembly.
“We see that representative bodies across Europe are finding ways to decide in the conditions of a pandemic, and this is extremely important because of the democratic scrutiny of the introduction of restrictions on citizens’ rights, as well as the public debate on these issues”, she concludes.
However, while there are no obstacles to positive law, there are political obstacles, Mandić says.
“The National Assembly can still meet and review all decisions of the executive branch – those declaring a state of emergency, as well as all others. The reason for the non-participation of the National Assembly lies, I fear, in the party command, rather than the real inability to meet it”, she says, adding that the executive is obliged to submit its decisions on restricting citizens’ rights to the National Assembly for approval, which is expected to happen only next week, more than a month after the restrictions had begun.
All parliaments in the EU have found a way to continue to meet
Our portal has reviewed the work of all 27 parliaments of the EU Member States, and found that all held sessions in the second half of March and/or the first half of April – it is the period after Serbian authorities assessed that its parliament cannot meet due to epidemiological situation. Even in Hungary, which adopted a highly controversial law on Government’s authorities in the state of emergency, a parliamentary session on this draft law was held, and it was adopted by MPs.
In a statement from 10 March, Slovenian parliament simply rejected the possibility of the Government, which at that time had forbidden the gatherings of more than 100 people, limiting its activities.
“The public has expressed concern over the holding of sessions of the National Assembly, since it is possible that there would be more than 100 participants. In that context, we explain that the sessions of the National Assembly are not a public event, but a work of a state body, which this way implements its constitutional authorities”, the statement reads.
On the other hand, news on the website of the Croatian Parliament from the first week of April announced a session to be held in hotel Westin in Zagreb, so that the MPs could respect the distancing measures.
Changing the regular meeting place for a larger room, in which the MPs can hold an appropriate distance, was also implemented in Ireland, where, following the Easter Holidays, the parliament moved to the Dublin Convention Centre.
Since neither the Law on the National Assembly of Serbia nor its Rules of Procedure define a specific place where the sessions must take place, it is unclear why this kind of a solution could not have applied in Serbia.
Some European parliaments simply lowered the quorum needed for discussion and decision making. In Germany, representatives of parliamentary fractions have decided to change the rules of procedure so that the decision making would require the presence of a quarter of MPs, who this way can hold a necessary distance. In Sweden as well, the quorum was lowered to 55 out of total 349 MPs.
Other parliaments have found other ways to meet – rather than lowering the quorum, they lowered the number of MPs which can be present at a plenary hall at the same time. In Denmark, for example, the new rules prescribe that only 7-10 MPs would be simultaneously present when a voting take place. After they vote, they will live the hall, in which new MPs are let in.
Finally, a part of the parliaments on the continent acknowledged the fact that the world is now deep in the 21st century and that information technologies enable the MPs to work and vote remotely. The European Parliament adopted such rules and has so far held two plenary sessions which the majority of MPs were following online. At the time of hardest COVID-19 outbreak, Senate of Spain voted electronically to approve membership of North Macedonia in NATO in the second half of March. Electronic vote has also been introduced in Finland and Romania.
It is true that many parliaments of Europe have cut their schedule in the past month or so. In the Baltic countries, Bulgaria, even in France, the parliaments decide on the laws on emergency measures, while other commitments have been postponed.
No parliament in the EU, however, has not completely given up on its control over the executive at the time when, it is presumed, that control is crucial. This was the case in Serbia. Together with North Macedonia, it is the only country in the region whose parliament has not worked this long during the state of emergency – parliaments of Albania, Kosovo and Bosnia and Herzegovina continued to meet, while in Montenegro, the Speaker and the Presidents of the fractions continued to hold regular meetings.
More of a rule than an exception
Renouncement of the control over the executive by the ruling majority in Serbia, nevertheless, is not new. The eleventh parliament since the renewal of multi-party system, elected on 24 April 2016, has established a long trend of playing a supporting role in the power-sharing of Serbia, which is formally divided between three equal branches.
“Parliamentary control over the executive branch in this parliament has been more of a facade than a true opportunity for the public to see how the MPs control the Government. The first three years of this parliament were marked by a sporadic, superficial implementation of the oversight function. The worrying lightness with which the parliament was stepped over in reaching a decision on imposing a state of emergency showcases the low level of its influence, and therefore its ability to control the executive”, the Senior Researcher of the Center for Research, Transparency and Authority (CRTA) Tara Tepavac says for our portal.
Centre for Contemporary Politics has been pointing at the big problems with the functioning of the oversight function of the parliament in its annual publication State of Democracy in Serbia. From November 2017 to October 2018 MPs have asked the Government more than 300 questions, and received an answer to around 10% of them.
Tara Tepavac additionally reminds of the sessions in 2017 and 2018, which were completed with a single public inquiry in each of them, compared to 14 in 2015 and 28 in 2013. And the reports of the independent institutions, such as the Ombudsman and the Commissioner for Information of Public Importance were not discussed in a plenary session four years in a row, from 2014 to 2018.
In May 2019, European Commission assessed in its Report that the practices of the ruling majority have contributed to the boycott of the opposition, adding that the “oversight function of the parliament is still weak”. Soon afterwards, the Speaker announced a “package of measures” for the improvement of the work of the highest representative body.
“We have noticed several improvements since June 2019, when the plenary finally discussed the reports of the independent institutions, the inquiries have been organised much more often, as well as question time sessions. The MPs finally had enough time to prepare for the discussion on the law on the state budget. Space for further improvement is still there, for example in the quality of the discussion on the reports of independent institutions, which, in addition to the absence of the opposition MPs due to boycott of the parliament, have not contributed to the more effective oversight over the executive”, Tara Tepavac says.
She adds that the improvements in the work of the ruling majority cannot be assessed as sustainable before the concrete steps to prevent their appearance in the future are taken.
Will the deterioration of the National Assembly continue?
Apart from the absence of the National Assembly in declaring a state of emergency, another absence is drawing attention – strong public reaction to the fact that this institution has been skipped.
Among the eight MPs who made the request to convene the session, there belong to “Dosta je bilo” (DJB) movement, which continued to hold regular press conferences demanding that the Assembly renews its powers. They also requested the Constitutional Court to suspend the decision on the state of emergency until it was decided on by parliament.
“With the removal of powers from the National Assembly and its de facto suspension, the state in its functioning has gone beyond constitutional framework. DJB is seriously concerned that all control of the state and its resources in a crisis situation of combating Coronavirus is concentrated solely in the hands of the President of the Republic and a small number of people from the Government, which opens opportunities for abuse in the abolition of the constitutionally guaranteed rights and freedoms of citizens during a state of emergency”, reads this request.
In addition to these MPs, this move was condemned by their individual colleagues belonging to the Alliance for Serbia coalition. Ana Stevanović of the Freedom and Justice Party tells our portal that making a decision on a state of emergency is only a logical continuation of the “lethal practice of demolishing and degrading parliament and completely subordinating it to the government.”
“With the consent of the Prime Minister Ana Brnabić and the Speaker of the National Assembly Maja Gojković, the President almost carried out a coup with naive pretext and invoking the decision to ban the meetings of the Assembly. No other country has gone beyond the constitutional framework to fight Coronavirus”, says Stevanović.
However, one does not get the impression that this issue is at the top of the priorities of the public – in recent weeks, the issue of inactivity of the National Assembly has been dealt with more by MEPs, first of all Tanja Fajon and Vladimir Bilčik, than by the citizens of Serbia. Although the debate on the boycott of the forthcoming parliamentary elections by the Alliance for Serbia and the Free Citizens Movement has both pros and cons, one thing is for sure – the boycott will not make parliament more relevant.
The question of whether one should expect the National Assembly to fight for its place in the political system on its own if the citizens do not care enough about it hangs in the air for years. The answer appears to be clear.
Nikola CUCKIĆ and Aleksandar IVKOVIĆ