The Cornerstone Case of the CCS on Minority Rights

The above-mentioned decision (IUz-880/2010 from January 16, 2014) deserves particu-lar attention in the analysis of the case law for several reasons. In late 2009 the Demo-cratic Party led Serbian National Assembly enacted the Law on the National Councils of National Minorities. It was considered as long-awaited and the most important piece of legislation in Serbia ever enacted in the area of minority rights. This complex law regu-lated in detail the status, registration, competencies and budgetary financing of national councils, and as such it opened the door for direct democratic elections of the members of national councils upon separate voting registers of persons belonging to each national mi-nority.¹¹⁰ This law made possible the exercise of the collective right of national minorities to self-governance in areas of culture, education, information and official language use.

The law was enacted with consensual support of national minority organizations, but it was mainly opposed by Serb nationalist organizations, opposition political parties which claimed that the law empowered national minorities and their elected councils with too much power.¹¹¹ Consequently, in 2010 and 2011, eight initiatives were brought before the CCS contesting primarily the competences of these minority councils in various areas, but also challenging the possibility of direct elections of these bodies. The initiators con-tested various provisions in contained in 37 out of the 139 articles of the law. The large number of initiatives and contested provisions, the innovative character of the law and the poor jurisprudence of the CCS related to minority rights, particularly regarding minority self-government, all spurred the CCS to strive to produce a well elaborated decision with solid doctrinaire foundations. Furthermore, the fall of the Boris Tadić led Democrats in

108 Decision IUz-52/2008 from 21. April 2010.

109 Decision IUp-42/2008 from 14. April 2011 110 k^orhecz 2019, p.120.

111 Katinka BereTka: Fluid Borders of National-Cultural Autonomy: The Legal Status of National Minority Councils in Serbia. In: Nationalities Papers 2019/2, pp. 273-288, at p. 276.

May 2012 liberated the CCS from its traditionally present deference, culture of restraint towards the ruling political majority. In other words, the new political majority after 2012 had no sympathy towards this legislative act, making it possible for the CCS to decide freely upon its own considerations, and demonstrate strong judicial activism. With a high degree of certainty one can claim that this decision primarily reflected the opinion of judges voting for the decision.

In January 2013 with its decisive order, the CCS rejected as ill-founded initiatives related to the majority of contested provisions addressing separate voting registers, the electoral process, competences in areas of culture and the official use of languages. However, it did decide that the challenged provisions in 14 Articles merited further adjudication.¹¹² Final-ly, a year later, in its decision the CCS declared unconstitutional two articles of the law in their totality and several provisions in another eight articles. In the case of four articles, the CCS confirmed the constitutionality of the contested provisions.

Almost all of the invalidated provisions were related to the competences of national mi-nority councils in the area of education and information (media) and their competences and relations towards state and local bodies in protecting minority rights.¹¹³

The specificity of this decision, which further contributes to the magnitude of its signifi-cance, is that its reasoning contains many important general statements of the CCS on the protection of national minorities and minority rights. On the one hand, the CCS stressed the necessity of guaranteeing group specific (additional) rights to national minorities based on the grounds that without them full and effective equality between members of the ethnic majority and national minorities is not possible, equal rights and non-discrim-ination are not enough for effective equality.¹¹⁴ On the other hand, the at times general nature of their response was not without serious shortcomings. It omitted several impor-tant sources and offered no clear answers to some basic questions regarding the definition and legal nature of national councils,¹¹⁵ such as what is the purpose of guaranteeing the collective rights for self-governance?

The initiators contested ardently those provisions of the law which empowered respec-tive national minority councils to take part in the decision making processes and in the management of public educational institutions with instruction in minority languages and, furthermore, to become co-founders or founders of these public educational insti-tutions, primarily on the grounds that such powers are in violation of the equality of all citizens,¹¹⁶ as well as the provision in Article 79 of the constitution stipulating that the right to mother tongue education would be implemented in public educational facilities.

The CCS confirmed the constitutionality of these provisions of the law in general on the grounds that the powers of national councils regarding public educational institutions, including the right to become a founder of such institutions, are based on the collective

112 Order IUz-882/2010 from 17. January 2013.

113 k^orhecz 2015, pp. 81-82.

114 Decision IUz-882/2010, from 16 January 2014, Part V, 31.

115 B^ereTka 2019, p. 277.

116 According to the initiatives, persons not belonging to national minorities have no opportunity to influence the decision-making procedure in these public educational institutions; only representatives in national councils.

right to self-governance in Article 75 paragraph 2 on constitutional empowerment and in Article 21 paragraph 4 on the affirmative measures necessary to achieve full equality of persons in substantially unequal positions and on the assumption that the right to mother tongue education cannot be implemented with the exclusion of the representatives of the respective national minority; rather, they declared that their inclusion is essential in decision-making.¹¹⁷ It is interesting that the CCS supported its own arguments regarding the founding rights of public educational institutions of national minority councils by invoking the practice in Hungary concerning the position of Serb minority educational institutions.

Despite the fact that the CCS upheld the constitutionality of the general concept of the law, it found many of its contested provisions unconstitutional on various grounds.

In the case of numerous contested provisions, the CCS invalidated provisions not because they were directly violating some provisions of the Constitution, but because these provi-sions were not in harmony with so-called sectorial laws regulating the area of electronic media, administrative procedure, public broadcasting, the educational system etc. Such inconsistencies may violate the constitutional principle of unity of the legal order, Article 4, paragraph 1 of the Constitution. In many of its decisions on individual provisions, the CCS emphasized that the provision of a law regulating a different subject matter cannot change a rule from a law regulating another area of public life without this explicit pos-sibility provided within the law. The essential problem with the application of this rule regarding the concrete competences of national councils is twofold. Firstly, one can argue that national councils and their competences are in a systematic way regulated by the Law on the National Councils of National Minorities and, therefore, have the standing of a subject matter that cannot be regulated systematically by another law. Secondly, by letting a sectoral law provision prevail, the CCS could exclude or drastically limit the exercise of collective rights guaranteed by Article 75 of the Constitution.¹¹⁸

In several other cases, the unconstitutionality of provisions was not based on any concrete provision of the Constitution, but rather on the restrictive interpretation of the CCS of the scope of minority rights¹¹⁹, or, as the CCS articulated it simply; the “Legislator went out-side actions for the implementation of additional rights of persons belonging to national minorities”.¹²⁰ The problem with this kind of court activism is that the CCS provided very weak, or even a complete lack of, argumentation about the constitutional limits of these minority rights, violated by the National Assembly. One could infer, however, that behind these arguments the constitutional guarantees of the ethnically-based nation state and the interest of the dominant ethnic group were present without it being explicitly mentioned.¹²¹ A suitable example of such a restrictive interpretation is the annulment of the provision in Article 12, par. 1, point 5, which stipulated that national minority councils are to participate in the appointment of some school directors via preliminary consent

117 Decision IUz-882/2010 from 16 January 2014, Part VI, 39, 45.

118 Dissenting Opinion Judge Odri Kartag Agnes, Bilten Ustavnog suda 2012-2016 Knjiga 1 [Bulletin of the Constitutional Court 2012-2016, Book 1]. Službeni glasnik, Beograd, 2018, p. 522.

119 B^ereTka 2019, p. 281.

120 Decision IUz-882/2010, from 16. January 2014, Part VI, 35,.43-45, 57, 68, 70.

121 korhecz 2018, p. 572.

(veto) power. The CCS tried to defend its argument that participation in decision-making cannot amount to veto power by referring to Article 15 of the Framework Convention for the Protection of National Minorities and the Explanatory Report attached to this conven-tion.¹²² In its argumentation the CCS completely neglected to analyse the standings of the Advisory Committee for monitoring the Framework Convention, which could suggest a completely different conclusion.¹²³ According to various scholars, domestic, constitution-al, and legal provisions provide even less of a basis for such a restrictive constitutional interpretation of minority rights. Várady and Beretka argue that constitutional provisions (Article 75, par. 2) stipulate both autonomous decision making and participation in deci-sion making; therefore, preliminary consent cannot violate the constitution – on the con-trary, consultation is the lowest level of participation in decision making, if it is a form of participation at all.¹²⁴ Odri Kartag refers to the Law on Administrative Procedure, which explicitly stipulates preliminary consent as a means of participation in administrative decision-making.¹²⁵

A third group of provisions was invalidated because the CCS made some rather technical omissions in the interpretation of some provisions of various laws.¹²⁶

The unusual activism of the CCS in this cornerstone case can also be seen in the light of the court acting as a positive legislator. In the case of several provisions, the CCS, inter-preted phrases in provisions differently from their literal meaning, and in doing so spared the unconstitutional provision, but under the strict condition that they are interpreted ex-clusively in the manner stated by the CCS.¹²⁷

Although the reasoning lacks any reference to constitutionally protected values, juxta-posed with the constitutionally protected minority rights, one could see in it the tacit de-termination of the CCS to protect the centralized ethnic based nation state from collective minority rights aimed to protect ethnic diversity. In this respect one can find a slightly more direct reference to the protection of the position of the titular nation and nation state in another cornerstone case of the constitutional court, in which the CCS declared

122 Decision IUz-882/2010, from 16. January 2014, Part VI, 43-44

123 Norbert TóTh: A tool for an effective participation in the decision-making process? The case of the na-tional councils of nana-tional minorities. In: Balázs v^ízi – Norbert T^óTh – Edgár d^oBoS (eds.): Beyond Internation-al ConditionInternation-ality: LocInternation-al Variations of Minority Representation in CentrInternation-al and South-Eastern Europe. Nomos, Baden-Baden, 2017, pp. 235-236. k^orhecz 2015, pp. 91-92.

124 Tibor varadi: Mišljenje o ustavnopravnim pitanjima koja je postavljaju povodom osporenih odredaba Zakon o nacionalnim savetima – Izneto na javnoj raspravi pred Ustavnim sudom 2. jula 2013.godine. [Opinion on Constitutional Law Question Related to Disputed Provision of the Law on National Councils – Elaborated on Public Hearing Before the Constitutional Court on 2 July 2013.]. In: Pravni zapisi, 2013/2, pp. 419-435, at pp. 427-428, B^ereTka 2019, p. 281.

125 karTag 2018, p. 520.

126 korhecz 2015, pp. 93-94.

127 Milan s^Tanić: Doprinos unapređenju pravne države kroz mehanizam ustavnosudske kontrole opštih akata u svetlu interpretativnih odluka Ustavnog suda Srbije. [Contribution of the Constitutional Court to the Development of the Rule of Law Principle through the Judicial Review of Legislative Acts in the Light of In-terpretation Decisions of the Constitutional Court]. Bilten Ustavnog suda. Službeni glasnik, Beograd, 2018, pp.

929-934, Decision IUz-882/2010, from 16. January 2014, Part VI, 37, 59.

unconstitutional the majority of the provisions of the Statute of the multi-ethnic Autono-mous Province of Vojvodina.¹²⁸

5.5. Relationship Between Interpretation Methodology, Judicial Activism and