Dr Oliver Nikolić
An Outline of the Constitutional “State
of Affairs” in South East Europe
I.
Crisis
of the Federal Republic of Yugoslavia and Creation of the State Union of Serbia
and Montenegro
Creation
of the union of Serbia and Montenegro, for the fourth time in the last one
hundred years, is an attempt at coming out of a deep crisis of the federation
the Federal Republic of Yugoslavia found itself after the adoption of
amendments in July 2000. However, suspicion concerning the crisis of the rule
of law persists, particularly regarding the last ten years or so. This may be
explained by the fact that the 1992 Constitution of Yugoslavia itself was
legally void (among else because the procedure for changing the Constitution
was violated, and because the federal body that adopted the Constitution lacked
both legality and legitimacy). The constitutions of the member-republics too,
particularly the 1990 Constitution of Serbia and partly the 1992 Constitution
of Montenegro, were never in agreement with the federal Constitution, as well
as several of the acts of the member-republics and the federation, which only
fills up the picture of the situation concerning the rule of law. In the
Republic of Serbia during the preceding period laws were passed in violation of
the basic human rights without any reaction from constitutional courts, which
definitely pointed to the fact that their role was more political than
judicial. The amendments to the Federal Constitution passed in July 2000, have
only aggravated the situation, so that it may be maintained that the Council of
the Republics had lost its federal character weakening somewhat the influence
of Montenegro, which from that moment (and with reason) refused recognition of
the Federal Government and its acts.
Changes
that took place in October 2000 were misdirected from the start, and instead of
abolishing the Federal Constitution and scheduling elections for the Parliament
that would pass a new democratic constitution, the new government decided to
take the 1992 Constitution of the Federal Republic of Yugoslavia, together with
the amendments, as a parameter of legality and legitimacy.
It
is obvious that the new union of Serbia and Montenegro has taken the same
course, the course of illegality, since the procedure for changing the Federal
Constitution was completely disregarded[1].
However, it should not be objected that the process of creation of this new
community was illegitimate, first of all because the creation of such a new
community would really makes possible the promised move towards the European
Union. And instead of accepting the offered chance of the EU and adopting by
urgent procedure the highest legal act of the community, the Constitutional
Charter, this process turned into an endless interpretation of the so-called
Belgrade Agreement[2]. Although
the text of the Constitutional Charter was finally levelled out, admittedly
with a six months delay, it still cannot be definitely asserted how this Union
of Serbia and Montenegro will function in practice. What is first of all meant
here, relates to the conflict of competences between the Union and the
member-republics, as well as to the relevant institutional reforms. The delay
in passing the Constitutional Charter, inevitably causes delay in the process
of adopting the new, i.e. amending the actual constitutions of the republics[3],
which was, according to the Belgrade Agreement, scheduled for December 2002.
Proceeding
Points for the Restructuring of Relations between Serbia and Montenegro
prescribe the procedure for passing the Charter, and its content, leaving to
the future framers of the constitution only the formulation of the text of the
Charter. In addition, since it provides for completely different elements of
the procedure for passing the Constitutional Charter from those prescribed by
the still valid 1992 Constitution, this document may be considered as
unconstitutional. Otherwise, the so-called Belgrade Agreement establishes a
novel, fabricated kind of state union, being neither a federation nor a
confederation, completely unknown in practice and theory of constitutional law,
essentially leading to further disintegration and final dissolution of any kind
of a union between Serbia and Montenegro.
1.
Preamble
and Introductory Provisions to the Charter of Serbia and Montenegro
The
Draft of the Constitutional Charter of the state union of Serbia and Montenegro
contains a Preamble and 27 Articles. Already at first sight it can be noticed
that this draft is extremely short and that it does not deal in sufficient
detail with several elements essential to the existence of a state.
The
Preamble states that the State Union of Serbia and Montenegro is constituted by
the state of Montenegro and the state of Serbia, including the Autonomous
Provinces of Vojvodina and Kosovo and Metohija, regardless of the fact that the
latter is practically not under the jurisdiction of Serbia, but under
international protectorate according to the Resolution 1244 of the Security
Council of the UN. The goals of Serbia and Montenegro include different
activities, without specifying how they shall be practically implemented. It is
obvious that the framers of the Constitution did not have a clear vision of how
such goals, otherwise politically justified and useful, shall be accomplished.
The only thing that can be anticipated from such scanty provisions, is that the
leading idea of the framers of the constitution was integration of the state union
into the European Union.
Impreciseness
and deficiency of the Constitutional Charter reflects itself also in the lack
of a definition of the symbols of state union, which is probably left to be
regulated by some later act of the Parliament of Serbia and Montenegro.
According to the Charter, Serbia and Montenegro have no capital city, but only
the administrative centre situated in Belgrade, also the seat of the Parliament
and the Council of Ministers, while the Court of Serbia and Montenegro is
dislocated to Podgorica.
Protection
of human and minority rights and civil liberties is regulated by a special
charter, a constituent part of the Constitutional Charter. If protection of
some of the rights enumerated is not ensured by the member states, this shall
be undertaken by the Union of Serbia and Montenegro.
The
strongest state attribute of Serbia and Montenegro is her international
personality. Serbia and Montenegro is a member of the world and regional
organisations, has the right to establishing of international relations with
other states and international organisations and to make international treaties
and agreements. What is positive in the Constitutional Charter is the fact that
it does not abandon the former provision of the Constitution of the Federal Republic
of Yugoslavia (Article 16) which provides that a ratified and published
international agreements shall become integral part of the national legal
system, and that such acts shall have primacy over the law of Serbia and
Montenegro, i.e. the law of the member states.
2.
Institutions
of the State Union of Serbia and Montenegro
The
Constitutional Charter establishes five common institutions of the state union,
i.e. the Parliament of Serbia and Montenegro, President of Serbia and
Montenegro, Council of Ministers of Serbia and Montenegro, the Court of Serbia
and Montenegro and the Armed Forces of Serbia and Montenegro.
1. Parliament of Serbia and Montenegro. Parliament is the highest organ
of the state union. It is unicameral, in contrast to the Parliament of the
Federal Republic of Yugoslavia, which was bicameral. The Charter states that
the Parliament consists of 126 members, 91 being from Serbia and 35 from
Montenegro, without explaining how it has arrived at such numbers. It is clear
that the substantially greater number of electors in Serbia was taken into
account, but positive discrimination concerning the number of the members from
Montenegro is also visible. The rationale of such a provision, also, should be
looked for in the strict observation of the Belgrade Agreement which guarantees
the mechanism of protection against outvoting of one of the member state by the
other. Such protection is also employed in regarding the way of decision-making
by the Parliament, where the majority of all the members is required, as well
as the majority from both the member states separately. This method of election
for the Parliament of Serbia and Montenegro is interesting also for the reason
that it points to an obvious political compromise of the ruling parties in the
assemblies of Serbia and of Montenegro. In the first two years following the
adoption of the Charter, members of Parliament shall be elected indirectly,
proportionally to the number of seats their parties have in the assemblies of
the republics, and after the expiry of this period, at direct elections.
However, if within next two years parliamentary elections should take place in
Serbia or Montenegro, the structure of the Parliament of Serbia and Montenegro
shall be altered proportionally. Whether such elections conform to the European
and democratic standards, as it is claimed by the Charter, is to be answered by
the creators of such provisions.
The
Parliament has competences in all the fields related to international
personality of the state[4],
identification of borders, declaration and lifting of a state of war, issues
related to standardisation, intellectual property, measurements and precious
metals, statistics, policies of immigration and asylum, visa system, free
movement of goods, services, people and capital within the territory of Serbia
and Montenegro, and the like.
2. President of Serbia and Montenegro. One of the organs of the new
state union is the President of Serbia and Montenegro, bringing together the
former functions of the President of the Federal Republic of Yugoslavia and the
Prime Minister of the Federal Republic of Yugoslavia. A candidate for this
office shall be proposed by the Speaker and the Deputy Speaker of the
Parliament, and shall be elected by the Parliament by a necessary majority of
votes. This is an essential issue since the consequence of a repeated
non-election of the proposed candidate for the office of the President of the
state union means dissolution of the Parliament, a perplexity remains as to the
required majority of votes. This article explicitly states that the President
of the State Union and the Speaker of the Parliament shall not be from the same
member-state, as well as that persons from the same member-state may not be
elected to this office for two consecutive terms lasting for four years. The
President of Serbia and Montenegro, among else, represents the State Union in
the country and abroad, presides over and administers the Council of Ministers,
proposes and recalls ministers, is a member of the Supreme Defence Council, and
performs protocolar and other similar functions.
3. Council of Ministers. This institution is the authority of executive of
Serbia and Montenegro and consists, in addition to the President of Serbia and
Montenegro, of five ministers. The ministries surviving at the level of the
state union are the following: Ministry of Foreign Affairs, Ministry of
Defence, Ministry for International Economic Cooperation, Ministry for Internal
Economic Cooperation and Ministry for Human and Minority Rights. Proportional
representation, according to the spirit of the Charter, of both the
member-states in the Council of Minister has consistently been carried out so
that three of the ministers have to be from one of the member-states, and two
ministers and the President of Serbia and Montenegro from the other. This
principle applies also to deputy ministers, while the Minister of Foreign
Affairs and the Minister of Defence and shall switch their roles with their
deputies after two years. The list of candidates for the Council of Ministers
shall be proposed by the President, and they shall be elected by the
Parliament. If the list does not receive the required majority of votes on
three separate occasions, the Parliament shall be dissolved and new elections
called. The Council of Ministers shall be competent in making and implementing
the policy of Serbia and Montenegro in line with the common policy and
interests of the member states, to propose to the Parliament of Serbia and
Montenegro laws and other acts, to coordinate the work of Ministries, to
appoint and dismiss the heads of diplomatic and consular missions of Serbia and
Montenegro and other officials, to adopting by-laws, decisions and other
general acts, and in to discharge other executive functions.
4. The Court of Serbia and Montenegro. It is worth noting that the
Charter does not specify the number of judges constituting this judicial
authority, but only states that it shall include an equal number of judges from
both the member states. The term of office of judges shall be six years with no
possibility of re-election. Jurisdiction of the Court includes settling of
disputes between the institutions of Serbia and Montenegro, or disputes between
the institutions of Serbia and Montenegro and one or both of the member-states,
as well as ruling on petitions of citizens (if no other recourse has been
provided in the event the institutions of Serbia and Montenegro have violated
their rights or freedoms guaranteed by the Constitutional Charter), ruling on
whether the constitutions of the member states are in conformity with the
Constitutional Charter, ruling on whether the laws of Serbia and Montenegro are
in conformity with the Constitutional Charter, i.e. on whether the laws of the
member states are in conformity with the legislation the state union, as well
as ruling on the legality of final administrative acts of the institutions of
the state union. All decisions of the Court of Serbia and Montenegro are
binding, without the right of appeal. The Charter states that the Court is
authorised to invalidate laws, other regulations and enactments of the
institutions of Serbia and Montenegro that are contrary to the Constitutional
Charter and the laws of the state union, while it says nothing of the
constitutions and laws of the member-states that are contrary to the relevant
acts of Serbia and Montenegro, which may suggest that these shall be directed
to the parliaments of the member-states.
5. The Armed Forces of Serbia and Montenegro. One of the
constructive novelties in the Constitutional charter is putting of the armed
forces under civilian and democratic control. The Commander-in-Chief of the
Armed Forces shall be the Supreme Defence Council, consisting of the President
of Serbia and Montenegro and both the presidents of the member-states, and
taking decisions by consensus. The new state union abolishes military courts
and transfers their jurisdiction to the regular courts according to the law.
3. Other Relevant provisions of the
Constitutional Charter of Serbia and Montenegro
Disharmony
between the constitution, laws and other acts of the state union and the
member-states will be a serious problem and will probably affect the
functioning of the common state. This was assumed by the framers of the
constitution, and made them emphasise that all the mentioned acts have to be
harmonised. This kind of provision is usually not inserted in the acts of
constitutional character because it is so obvious that it is taken for granted.
However, the Charter fails to mention until when those acts have to be
harmonised, but having in mind the recent past, as well as the method of
drafting of constitutional and statutory texts in Yugoslavia, this will
certainly not happen in near future.
The
Constitutional Charter has first to be adopted in the National Assembly of the
Republic of Serbia and the Assembly of Montenegro, and in identical texts, i.e.
without the possibility of alteration and making of amendments. After adoption
in the assemblies of the member-republics, the Charter is to be passed on to
the Assembly of the Federal Republic of Yugoslavia, to be adopted and
promulgated. After entering into force of the Constitutional Charter, all the
laws of the Federal Republic of Yugoslavia shall be enforced as the laws of
Serbia and Montenegro if their subject matter remains within the competences of
the state union of Serbia and Montenegro. Other laws of the Federal Republic of
Yugoslavia shall be enforced as the laws of the member-states until new laws
are passed, the assemblies of the member-states being authorised not to enforce
them. But, since the Assembly of Montenegro has as long ago as July 2000, out
of protest against the unconstitutional procedure whereby the Federal
Constitution was amended, declared by a resolution that it does not recognise
anymore the federal authorities and their acts, including the laws passed by
the Federal Parliament, it has begun the legislative activity in the sphere
belonging according to the Constitution of the Federal Republic of Yugoslavia
to exclusive federal competence. The product of such activity were some of the
laws in the economic sphere, such as the Central Bank of Montenegro Act,
Customs Act, Companies Act or Bankruptcy Act.
The
provisions on the property of Serbia and Montenegro are not sufficiently
precise and detailed, leaving it unclear what is to be considered as property
necessary for the operation of the institutions of Serbia and Montenegro. This
imprecision is probably most conspicuous in case of the Armed Forces of Serbia
and Montenegro, where it may reasonably be asked whether the property of the
Armed Forces of the Federal Republic of Yugoslavia remains the property of
Serbia and Montenegro.
Very
provocative is the provision on the possibility of withdrawal from the state
union after the expiry of a three years term. A decision on the change of
status both the member-states may make only after holding a referendum. The
Charter points that if Montenegro withdraws from the state union, all the
international documents related to the Federal Republic of Yugoslavia,
including the Resolution 1244, shall pertain and apply fully to Serbia as its
successor. A question remains, however, what would happen to the Resolution
1244 if Serbia decides to change its status, or if both the member-states
decide on such a solution. Finally, the member-state that, according to the
Charter, does not exercises the right of withdrawal shall inherit the right to
international legal personality, and in case both Serbia and Montenegro decide
on independence, the succession procedure shall be carried out as it was the
case with the former Socialist Federal Republic of Yugoslavia.
III.
Concluding
Remarks on the Constitutional Charter of Serbia and Montenegro
Constitutional
Charter is the supreme legal act of the State Union of Serbia and Montenegro,
and it may not be maintained that it was drafted in haste. If we have in mind
that the drafting of the Constitutional Charter of Serbia and Montenegro was
six months overdue, there is no excuse for a substantial number of imprecise,
unclear and illogical provisions. The reason for this should be looked for in
unreadiness of the politicians to make compromises and in their disregard for
the national and state interests in favour of narrow party interests. As a
consequence, we have a constitutional act with little chance of being
implemented soon.
Since
the Constitutional Charter is silent on the question of the majority necessary
for its adoption in the assemblies of the member-republics, as well as in the
Assembly of the Federal Republic of Yugoslavia, and the procedure for amending
the still valid Constitution of the Federal Republic of Yugoslavia has already
been disobeyed, it is irrelevant whether this will be simple or qualified
majority. It would be most suitable that the Constitutional Charter of Serbia
and Montenegro be adopted as soon as possible, in order to enable the new union
to join the European integration trends, i.e. negotiations on the process of
association and stabilisation.
It
also seams that the framers of the constitution have failed to include within
the competences of Serbia and Montenegro matters like frequency control, flight
control, and mutual recognition of school and university diplomas and titles.
Property relations are related to the Article 1 of the Protocol 1 to the
European Convention for the Protection of Human Rights and Fundamental
Liberties, which is expected to be ratified following the admission of this
country to the Council of Europe. As Serbia and Montenegro is the only internationally recognised legal
personality, it would be appropriate to retain the basic property relations
within the competences of the common state, as it was previously the case.
All
the questions, about which the framers of the constitution failed to reach the
agreement, were simply omitted or were very broadly formulated. Removing of
such gaps in the law would only be enabled by passing of new, special laws and
other acts, or possibly by means of authentic interpretation by some authority
of the state union. It is obvious that the framers of the constitution paid
more attention to consistent implementation of the mechanism of equal
representation of the member-state, than to the essential matters concerning
the existence of a functional state union, which often lead to confusions and
loose ends.
The
question of harmonisation of constitutions, laws and other acts of the
member-states with the Constitutional Charter and the laws of Serbia and
Montenegro, as well as the harmonisation of the economic systems of the member-states,
is one of the main problems concerning the functioning of the future union. If
we keep in mind that there are two different foreign trade, customs, tax,
monetary and banking systems, and that the Charter requires the Minister for Internal Economic
Cooperation to institute and provide for undisturbed operation of the common
market, including free movement of persons, goods, services and capital, it is
hard even to speculate on the problems that will confront the implementation of
such constitutional provisions. As regards the property of Serbia and
Montenegro, there remains the question of who is to be authorised to decide
what is the property necessary for operation of the institutions of Serbia and
Montenegro.
When
we are aware of the fact that even before the new state union has started to
exist some are already thinking of its dissolution, it is only to be hoped that
this period is going to be characterise by faster and stronger process of
approaching the European Union.
[1] 1992 Constitution of the Federal republic of Yugoslavia, Articles 139-142
[2] The full title of this document is "Proceeding Points for the Restructuring of Relations between Serbia and Montenegro", it was signed on March 14, 2002 by the President of the Federal republic of Yugoslavia, vice-president of the Federal Government, president of Montenegro, Prime Minister of Montenegro and prime Minister of Serbia, in the presence of the high representative of the European Union for the Common Foreign and Security Policy.
[3] This is an obvious violation of the provisions on amending the Constitution of Serbia (Articles 132-134 of the 1990 Constitution of the Republic of Serbia) and of Montenegro (Articles 117-119 of the 1992 Constitution of the Republic of Montenegro). In Montenegro it is impossible to decide on the change of state status, form of government and change of borders without previously held referendum, so this is also a case of violation of the constitution.
[4] This includes cooperation with international courts, membership of Serbia and Montenegro in international organisations, etc.