by Milan MILOSEVIC
At the time this issue is about the hit the presses, if the authorities want to avoid a new circle of legal violence and a new eruption of a political and constitutional crisis, the decision of the Constitutional Court is more likely to confirm two earlier decisions of the Federal Constitutional Court than to counter them.
Namely, last week judges of the Federal Constitutional Court unanimously temporarily suspended the decision of the Administrative Committee of the Parliament of Serbia, which expelled all representatives of the Democratic Party of Serbia (DSS). The Federal Constitutional Court ordered the parliament, until the final decision of the Federal Constitutional Court in this case, to return all 45 representatives of the DSS to the parliament and allow them to participate in the work of the parliament and vote.
Judges Aleksandar Simic and Milorad Gogic were inclined to immediately issue a binding verdict in the case regarding the request bu the DSS to annul the disputed decision of the Administrative Committee because it was made on the basis of erroneous interpretation of the coalition agreement between the members of the DOS and because it violates the Law About Election of Representatives in the Parliament.
However, the court supported the proposal made by the judge rapporteur Veselin Lekic who was of the opinion that it was only necessary to issue an "obligatory executive order" that "allows uninterrupted, legal and legitimate work and functioning of the Parliament with the representatives elected by the citizens of Serbia in the most recent elections, in December 2000".
On July 26, 2002, the Federal Constitutional Court concluded that there were no reasons for the expulsion of 21 representatives of the DSS from the parliament. However, that decision was on the same day, before it was officially announced, brazenly violated at the meeting of the DOS presidency. Then, on July 29, the Administrative Committee of the Parliament of Serbia, sidelined the decision of the Constitutional Court by expelling the DSS from the DOS coalition and expelling all of its representatives from the Parliament. The Administrative Committee then annulled its earlier decision, annulled all the resignations submitted by previously expelled representatives, etc.
The new violation, or at least cheeky sidelining of the decision of the Federal Constitutional Court, came with open public denigration of our formally highest court by senior officials of the ruling coalition [DOS] who only a few months earlier voted to appoint new judges of the Constitutional Court in the Federal Parliament. Even high state officials joined in unseemly attacks on the court.
The Administrative Committee made its decision but then it failed to give it official approval by signing it. A constitutional suit by 45 expelled DSS representatives followed on August 19, addressing the violation of the previously adopted decision regarding the expulsion of 21 DSS representatives from the parliament. In that context we witnessed a lot of legal fog with extremely farfetched interpretations of the disputed decision, from comparison of the case with bankruptcy to claims that punished representatives betrayed reforms and the will of the voters.
In the meantime, the will of the voters was checked twice, in unsuccessful election for the president of Serbia. The presidential candidate of the DSS, Vojislav Kostunica (supported by several parties from the DOS) in the first round of the election won 150,000 votes more than his opponent Miroslac Labus, who represented the government's policies. In the second round Kostunica's advantage was even larger, about 1,000,000 votes. Not surprisingly, the government sought to downplay the fact that Labus ran as its candidate after the lost election.
Legal violence: In that context certain analysts, as for example Slobodan Antonic, opined that Djindjic's government cannot survive without legal violence, since in a democracy a government cannot function without support by the parliament, and if the parliament does not function, the state enters some sort of a state of emergency and the government must fall. Antonic mentioned the joke, these days very popular in Serbia, that apart from Cedomir Jovanovic [zealous official of Djindjic's Democratic Party] no one on the country knows who representatives in the parliament actually are.
When the Democratic Center and the Democratic Alternative sided with Kostunica and supported his run for the president of Serbia, there were some veiled threats and comments that they could also be expelled from the parliament. Naturally, that was jokingly dismissed (by Nebojsa Covic), implying that it was unclear how to get out of the existing chaos.
After the end of the second round of the presidential elections the Federal Constitutional Court concluded that there was no reason for changing its earlier decisions, since neither facts, nor evidence, nor legal-constitutional norms had changed in the meantime. The acting president of the court, professor Momcilo Grubac, recognized and admired in legal circles, repeated that seats in the parliament cannot be taken away and allocated according to plans of certain politicians.
Creation of chaos, spiced up with elements of public persecution (mostly against professor Grubac) continued. At the same time there were announcements that suits for several grave criminal transgressions (forgery, obstruction of justice, etc.) would be filed. President of the Vojvodina Parliament Nenad Canak, who distinguished himself as one of most persistent promoters of the idea that the DSS should be expelled from the parliament, received a group of students from the Novi Sad University, which charged professor Grubac of conflict of interest. Grubac teaches at the Novi Sad University, which other judges have normally done as well, and is convinced that he has the right to do so. Grubac emphasizes that he resigned as a professor of the university when he became the Federal Justice Minister and announces that he will sue those who tried to discredit him by claiming that he received full-time salary at the University.
A new attack on the Federal Constitutional Court followed. During that attack the Prime Minister of Serbia even said that the Federal Constitutional Court might even decide that it is capable of organizing the world soccer championship. The DOS representatives in the parliament, in permanent flux, first announced that the pro-government majority would ignore any decisions by the Federal Constitutional Court, deferring instead to the Constitutional Court of Serbia. This statement provoked a heated discussion, but was on the whole condemned. The Democratic Center, whose president Dragoljub Micunovic from the start forcefully opposed all attempts to assail the will of the people, asserted that refusal to respect court decisions was a characteristic of the previous [Milosevic's] regime, which toyed with institutions and ignored the will of the citizens. Micunovic demanded from the Serbian government to respect and implement the decision of the Federal Constitutional Court that ordered that representatives of the DSS return to the Serbian parliament. He emphasized that if authorities continued to oppose and refuse to implement court decisions, we'd have total political instability and collapse of the judicial system in the country.
Jurisdiction: President of the Constitutional Court of Serbia Slobodan Vucetic also stated that the Federal Constitutional Court was wrong to accept this case, because now it turns out that the Serbian Law About Election of Representatives to the Parliament does include a mechanism for judicial protection before the Constitutional Court of Serbia and the Supreme Court of Serbia.
Momcilo Grubac responded with a professorial admonishment: "I doubt that Vucetic is as ignorant as he'd want us believe". Grubac stated that in case of overlapping jurisdiction with the Constitutional Court of Serbia, the Federal Constitutional Court had precedence and that at the time the DSS filed its suit the Constitutional Court of Serbia was not functioning because new judges had not been appointed.
Grubac also specified that the Constitutional Court of Serbia was dealing with the case that was not directly related to the expulsion of the DSS representatives from the parliament, and if the Constitutional Court of Serbia extended the case to include DSS seats in the parliament, the Federal Court might pull out of the case, since it does not intend to enter into a conflict with the state judiciary. On the contrary the goal of the Federal Constitutional Court is to cooperate with the state judiciary.
Grubac dismissed comments that the Federal Constitutional Court will soon be abolished by pointing out that the future state will also have a federal court. The basis for the organization of relations between Serbia and Montenegro signed on March 14, and adopted by the Serbian, Montenegrin and Federal parliaments, envisages a court of Serbia and Montenegro which will have constitutional-legal jurisdiction and will be in charge of securing identical judicial practice in both member-states. All in all, during this scandal the Serbian government clearly demonstrated its vision of the functioning of the future common state.
However, judging by the invitations sent to representatives for the next session of the parliament, which is supposed to debate changes of the Law About Election of the President of the Republic, it turns out that the official in charge, the president of the parliament, Natasa Micic, is already obeying the decision of the Federal Constitutional Court. By that decision she probably somewhat corrected the earlier impression that she was incapable of dealing with the parliamentary crisis. The representatives club DOS-Reforms in that context withdrew its proposal for the changes of the law and the session was postponed indefinitely in order "to wait for the decision of the Constitutional Court of Serbia" and reduce the ignominy. It is obvious that a large portion of representatives within the pro-government majority is convinced that this greed for power will backfire and is seeking a way to get out of the crisis without discrediting themselves too much.
Force makes things easy: In those moments, looking from outside, therefore, it seemed reasonably clear that these seats must be returned and that politicians had a precise idea about what the decision of the Constitutional Court of Serbia may be.
During the previous regime, there were several examples of expulsion of representatives from the parliament, as for example in August 1999, when representatives of the New Democracy were expelled after previously being expelled from the coalition "SPS-JUL-New Democracy-Slobodan Milosevic". At that time courts declared that the case was outside their jurisdiction.
This practice, which turned the institution of the representative in the parliament into a rag isn't, however, well received in Europe. The OSCE Office for Democracy and Human Rights (with headquarters in Warsaw, Poland), for example, as early as April 26, 2001, concluded that the law which prescribes that a representative is expelled if he changes his political party or leaves the coalition on whose list he or she was elected to the parliament, is obviously problematic. The OSCE specified that elected representatives should be responsible to the voters who elected them, rather than to their political party. Then, the OSCE suggested that this stipulation be removed, rather than continue to be "imaginatively" applied and "creatively modified".
Since during the scandal with stolen seats in the parliament the DSS this summer also approached the OSCE, on October 7 the OSCE responded that it had nothing to add to its analysis from April 26, 2001. In that context the OSCE reminds that the Copenhagen document from 1990 sets in its article 7.9 framework European legal mechanism for parliamentary systems and rights of parliamentary representatives. Yugoslavia signed that document, and a series of other documents on November 27, 2000, in Vienna.