Perspectives | Constituion

Toying with the judiciary

By - 26.01.2022

A referendum question with a hidden meaning.

Unlike elections, referendums in Serbia are not a common occurrence. The voting process conducted on January 16 of this year is only the second referendum since Serbia became a wholly independent country again in 2006.

The first referendum was inevitable because, after the dissolution of the state union with Montenegro, it made sense to adopt a new constitution. The opportunity was used to embed a preamble to the Constitution that cemented in place the legal position of Serbia towards Kosovo, stating that “the province of Kosovo and Metohija is a constituent part of Serbia,” and that “state institutions are obligated by the Constitution to represent and protect the state interests of Serbia in Kosovo and Metohija.”

This time the referendum dealt with changes to the Constitution, relating specifically to the justice system.

The proclaimed goal was to harmonize Serbia’s legislation with that of the European Union and thereby lessen the impact of party politics on the judiciary, all to better facilitate Serbia’s accession into the EU.

Key changes affect how judges and prosecutors are selected. In the future, they will not be elected by Serbia’s Parliament but by the High Judicial Council (VSS) and the High Prosecutors’ Council (VST). These are bodies which, on paper, secure and guarantee the independence of the judiciary. The current members of VSS and VST will be chosen again in line with a new procedure.

Although such changes may seem positive, the response among citizens was subdued — a mere 30.1% of registered voters voted. The winning option, “for,” prevailed with 60% of the vote. Only by thinking through the question of why such a small number of people decided to vote on such an important issue — we are talking about a core aspect of the country’s judiciary — do we get a glimpse of the complexity of the problems related to the January referendum.

Unclear referendum question

The first reason for the low turnout was a lack of information. The question posed at a referendum should be clear and unambiguous, formulated in a way that the average citizen can understand and declare if they are for or against it. This time, however, the question was as follows: “Are you in favor of confirming the act on changing the Constitution of the Republic of Serbia?” In other words, it referred to a package of amendments that will change a series of judiciary-related provisions in the Constitution.

In order for anyone to take a stance on the topic, they would need to immerse themselves in 29 typed pages of legal terminology and be knowledgeable about the specialized issues that would be affected by the proposals. For instance, would it be a good or bad thing to legally prevent the same person from being elected twice for president of the Supreme Court? The vast majority of citizens have no relevant information because they are not legal experts, and public debate on the referendum was virtually nonexistent.

President Vučić and Prime Minister Brnabić did not bother to invite people to vote, although they declared that they support the changes.

The second reason for the low turnout was the absence of a campaign. 

This is a result of the ruling Serbian Progressive Party (SNS) which, this time around, didn’t deploy the state budget to flood billboards with calls to vote. Nor did it mobilize its “safe voters” by bribing them with newly paved roads or free groceries. The media, which favors SNS, avoided the topic. President Vučić and Prime Minister Brnabić did not bother to invite people to vote, although they declared that they support the changes. Some of the more prominent members of SNS, such as Vučić’s close associate and longtime member of parliament Vladimir Đukanović, openly opposed the changes.

As expected, the opposition didn’t support the changes, and emphasized that the referendum was announced by an illegitimate and de facto single-party Parliament, with no public debate. The only thing opposition parties didn’t agree on was whether people should vote against the referendum or whether they should boycott the referendum entirely.

But even if we leave these arguments aside, the proposed act contains a slew of issues which render its adoption meaningless.

Under EU pressure

The idea that a government which, according to reports by organizations like Freedom House is degrading the level of democracy in its own country, would consider strengthening the judiciary seems suspicious.

If we look at the proposal up close, we would see the influence of politics will remain preserved, just in a different form. For example, instead of the Parliament selecting judges, they will be selected by the VSS. The catch is that most members of the VSS, six out of 11, are selected by Parliament.

The judiciary is only part of a problem of systemic corruption in Serbia.

Not to mention that the judiciary is only part of a problem of systemic corruption in Serbia — the prosecution and police will remain firmly in the hands of the ruling clique. The result of this is seen in a series of serious scandals in which not a single government minister or high official of the SNS has ever been indicted for corruption. Last year’s European Commission report reiterated a number of unaddressed shortcomings in combating corruption and organized crime.

Even completely independent courts wouldn’t fully fulfill EU requirements, there are more fundamental and harmful problems remaining in the judiciary.

Bearing in mind that the opening of pre-accession chapters is necessary for accessing EU funds, it’s evident why the Serbian government was willing to organize the vote. However, the question arises of why they decided to take such a passive approach. Wouldn’t it have been more logical for them to wholeheartedly support a campaign for the adoption of the constitutional changes?

It’s possible Vučić didn’t even want the changes to be adopted and that the referendum was simply organized due to pressure from the EU.

A second more plausible theory emerges when considering the current political moment in Serbia. Just before announcing the referendum, the Parliament of Serbia adopted changes to the Law on Referendums and the Law on Expropriation, which provoked a wave of demonstrations across the country. The demonstrations were a response to the way that the Law on Expropriation opened up space for the expropriation of property to the benefit of foreign interests, such as the controversial company Rio Tinto that intended to mine lithium in Jadar, on the outskirts of the town of Loznica, with potentially devastating environmental effects.

Recent protests by environmental activists, followed by road blockades, have proved to be more challenging than previous protests. The government didn’t manage to suppress the protests even with the combined force of party thugs, police, misdemeanor reports and the unavoidable tabloid offensive. This is the first time that Vučić has had to back off. He withdrew the Law on Expropriation, though the changes to the Law on Referendums were adapted by removing some of the debatable items, such as a requirement that would have made it onerously expensive for citizens’ initiatives to file petitions with the government.

True change

Part of the changes that remained, however, are more significant than the subsequent referendum itself because they will have consequences for every subsequent referendum held in Serbia.

Namely, a provision has been repealed that requires more than half of the total number of citizens registered as voters to vote in order for a referendum to be valid. Why is this significant?

Dissatisfied with both the government and the opposition, a large part of Serbia’s voters has become utterly apathetic. When the electoral threshold still existed, most of the burden for a referendum’s success fell on those who advocated for it: opponents could simply boycott it and “bring it down” via a low turnout.

Repealing the electoral threshold means that boycotts no longer serve a purpose except to deprive the process of legitimacy. However, to adopt far-reaching changes, such as constitutional changes, it now suffices to get support from the majority of those who voted, even if it’s just a single person.

Vučić thus gives himself more power in relation to the Constitution, which is one of the rare remaining constraints on the government. For instance, a similar set of constitutional changes, packed with legal jargon and stuck among amendments worth voting for, could be used as a vessel to smuggle in changes extending presidential and prime ministerial powers.

On the other hand, if he reasons that it could help him prolong his rule, he could use such a set of changes to modify the famous preamble of the Constitution, which allegedly obliges him to never recognize Kosovo’s independence.

Will this also form part of some future gambit? It may be difficult to imagine such a thing today, but no one ever expected him to play with the judiciary either.

Feature image: Press Office of the President of Serbia.


This article has been produced with the financial support of the “Balkan Trust for Democracy,” a project of the German Marshall Fund of the United States and the Norwegian Ministry of Foreign Affairs. Opinions expressed in this article do not necessarily represent those of the Norwegian Ministry of Foreign Affairs, the Balkan Trust for Democracy, the German Marshall Fund of the United States, or its partners.