The Role of the Constitutional Court of Serbia in the Times of Transition

Papić, Tatjana and Đerić, Vladimir (2016) The Role of the Constitutional Court of Serbia in the Times of Transition. Analitika - Center for Social Research ; Beogradski centar za ljudska prava, Sarajevo ; Beograd.

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Abstract

This paper explores the role of the Constitutional Court of Serbia (hereinafter: CC) in the process of democratic transition in Serbia, examining the impact of the CC’s decisions on the development of democratic society. It is written within the framework of the research project ‘Courts as Policy-Makers? Examining the Role of Constitutional Courts as Agents of Change in the Western Balkans’. Specifically, it considers the CC’s impact on democratic transition after the adoption of the 2006 Constitution of Serbia. There are several reasons for choosing this time frame. Although Serbia adopted a new Constitution and held its first multiparty elections in 1990 (as part of the former Yugoslavia), the decade that followed was marked by the authoritarian rule of Slobodan Milošević. Democratic transition started in earnest only when the Milošević regime was deposed on 5 October 2000. The 1990 Constitution was replaced by a new one in 2006. The 2006 Constitution envisaged a constitutional court with a different composition and competences than that under the 1990 Constitution. Although there is institutional continuity between the two constitutional courts, it seems justified to focus on the new court in the light of these changes, particularly because the present study is not only a study of the court’s case-law but also a case study of the court itself. Moreover, in the period between the democratic change of 2000 and 2008 (when the CC was constituted and began to function under the 2006 Constitution), the court had long periods of inactivity. It is also not without significance that, in 2006, Serbia as a state found itself outside the (con)federal frameworks of which it was previously part (the former Socialist Federal Republic of Yugoslavia, Federal Republic of Yugoslavia (Serbia and Montenegro) and the State Union of Serbia and Montenegro). For all these reasons, this paper will primarily focus on the CC formed under the 2006 Constitution and its performance and impact on the still on-going democratic transition in Serbia. In that respect, we are particularly interested to see if and to what extent the CC exercised judicial activism, as set by the joint analytical framework of the research project, which adopts value neutral position towards the notion of judicial activism. Accordingly, the paper relies on the notion of judicial activism suggested by Wojciech Sadurski – as the action in which constitutional courts alter the preferences of the parliamentary majority or depart from the views of the constitution makers in cases that pertain to fundamental political choices on central public issues. Thus, judicial activism implies a setting in which there is a collision between the views of the political majority and the court on the articulation of the meaning of a constitutional provision and a possibility for the court to either uphold or strike down the view of the majority embodied in a legal provision. The paper also follows Sadurski’s criteria for the inquiry into judicial activism: (1) the importance of the invalidated law and (2) the nature of the reasoning leading to such invalidation. These criteria lead us to focus on abstract constitutional review cases before the CC, and for this reason our analysis does not deal in detail with individual constitutional complaint cases. However, we do consider cases concerning the prohibition of associations, because they have raised questions that are important in the context of transitional democracy. This reflects our general approach of focusing on cases that concerned controversial political issues in Serbia, and also raised issues related to the country’s compliance with European standards of parliamentary democracy and human rights, since democratic transition is a process that brings a country in conformity with these standards. Moreover, we considered the impact of internal and external factors on the performance of the CC in general and in the context of the cases we selected for analysis. Broadly speaking, internal factors relate to the institutional design of the CC, in particular its competences and the selection and position of its judges. External factors relate to political and social factors influencing the work of the CC in general and its decisions in the selected cases. The research methodology of this paper is multifaceted. It is based on qualitative analysis of information from the sources relevant for the assessment of the performance of the CC. These sources incorporate constitutional and legal provisions, decisions of the CC and other legal and political documents pertinent to the CC’s rulings. Further, they integrate findings from semi-structured interviews with sixteen relevant actors and observers, academic writings discussing the performance of the CC and media reports on the implementation and reception of the CC’s rulings. The first part of the paper deals with the CC’s institutional structure. It provides an overview of its composition (including the procedure for selection and eligibility criteria for its judges) and competences. This chapter also contains an account of other constitutional and legal provisions relevant for the work of the CC (i.e. those pertaining to guarantees of judicial independence, decision-making and transparency). On the basis of these we will provide a setting in which the internal factors influencing the performance of the CC and its input legitimacy can be assessed. Further, we provide a summary of the output of the court, i.e. the statistics of its work, in order to provide a fuller picture of the extent and nature of its activity. The second part explores how the CC dealt with selected cases that involved thorny constitutional and political issues. It analyses these decisions in an attempt to identify and evaluate the approaches and strategies employed by the CC in deciding the cases under consideration and the quality of the reasoning offered in the decisions. In this part we also try to ascertain the impact, if any, of various factors affecting the role and performance of the CC during democratic transition in Serbia. Finally, we discuss the effects of these CC decisions by assessing their implementation and the reactions they received from the general public, politicians and experts. On the basis of such an analysis, we will be able to assess the legitimacy of the CC in sociological and normative terms. While the former reveals actual respect of the CC by the general public, the latter concerns the independence of judgment, reasonableness and consistency of the CC in the eyes of independent expert observers. Moreover, we provide an insight into the CC’s output legitimacy that pertains to the results of court’s work. These will be evaluated on the basis of the consequences of decisions of the CC in respect to dominant political values in the society. On the basis of this analysis, we hope to be able to provide, in the third part of this article, findings on the positioning, legitimacy, and overall performance of the CC in ‘times of transition’, to be followed by our concluding remarks.

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