legislator and the Constitutional Court: Steps forwards and steps backwards
Introduction
Even without the province of Kosovo (which, mostly populated by ethnic Albanians, uni-laterally declared independence in 2008), the Republic of Serbia (hereinafter, Serbia) is still a multiethnic state. Around 15% of the total Serbian population belongs to various autoch-thonous national minorities. Hungarians make up the biggest national minority group in Serbia. They live almost exclusively in the Autonomous Province of Vojvodina and around number 253,000 (3.53% of the total population). The second largest national minority group is the Roma, who live dispersed throughout Serbia and number around 147,000 (2.05%), followed by the Bosniaks. This group is concentrated in the Sandžak/Raška region, and they number around 145,000 (2.02%) (Statistical Office of the Republic of Serbia, 2011). Fur-thermore, the country is populated by large numbers of Croats, Slovaks, Albanians, Montene-grins, Vlachs, Romanians, Macedonians, Bulgarians, Bunjevci, and Rusyns, primarily living in Vojvodina.
National minorities’ collective right for self-governance/non-territorial autonomy (NTA) by way of elected national minority councils (NMCs) was introduced into the legal system of Serbia (then the Federal Republic of Yugoslavia) in 2002 with the Law on the Protection of the Rights and Freedoms of National Minorities (LPNM). The legalisation of NMCs in Serbia has been influenced by various factors, notably the political demands and activities of Hungarian political organisations in Serbia and international efforts for the recognition of
‘post-Milošević’ Serbia (Đurić, 2019).
The continuous evolution of the relevant legal framework over the last 18 years – which has been influenced, among other factors, by the interventions of the Constitutional Court of Serbia (CCS), the experience of democratic elections and the functioning of the NMCs – pro-vides an opportunity for analysing NTA in Serbia and drawing some significant conclusions.
This paper is divided into four sections. First, the legislative framework of NTA will be presented, with particular emphasis on the amendments made to it, such as those relating to the functioning of NMCs. Second, the relevant decisions of the CCS on NTA will be present-ed and analyspresent-ed. The third section highlights the most important unresolvpresent-ed issues around NTA in Serbia, while in the closing section, some conclusions will be formulated.
Tamás Korhecz
184
The evolving legal framework of NTA and the functioning of NMCs in Serbia
The legal framework of NTA
In the last 18 years, the legal framework of NTA in Serbia has been retailored and amended several times in the context of various state formations. It was introduced into the legal system during the years of the Federal Republic of Yugoslavia (established in 1992 and composed of two states: the Republic of Serbia and the Republic of Montenegro), constitutionalised during the state union of Serbia and Montenegro (established in 2003 as a loose federation of the Republic of Serbia and the Republic of Montenegro) and definitively shaped after the split of Montenegro and Serbia within the independent unitary state of the Republic of Serbia.
Two stages within this 18-year period can be distinguished. The first began with the legislative act of the Yugoslav LPNM in 2002, which established and recognised the collective right of national minorities to self-governance by the way of elected NMCs (Zakon o zaštiti prava i sloboda nacionalnih manjina, 2002). This first period lasted until the enactment of the Law on National Councils of the National Minorities (LNCNM) in 2009, a legislative act that comprehensively regulated the internal organisation, registration, competences, election and financing of NMCs. In the meantime, NTA and the NMCs were constitutionalised: in 2003, they became part of the Charter on Human and Minority Rights of Serbia and Mon-tenegro, and after the secession of MonMon-tenegro, provisions on NTA were included in the new Constitution of Serbia in 2006. The second stage began with the enactment of the LNCNM in 2009 and includes, first, the major intervention of the CCS in January 2014, which de-clared many LNCNM provisions to be unconstitutional and, second, two legislative acts of the National Assembly, which amended dozens of LNCNM articles in 2014 and 2018.
In 2002, the LPNM included only two articles with provisions on NMCs. Article 19 reg-ulated organisational issues (legal personality, registration, number of members), competences and NMCs’ relation to public authorities. The article also stipulated: that people belonging to national minorities elect NMCs in order to enjoy the right to self-governance in areas includ-ing language use, education, information and culture; that NMCs represent the respective national minority in the areas of official language use, education, national minority language information, and culture; and that NMCs participate in the process of decision-making or decide on issues and establish institutions in these areas. Furthermore, Article 19 stipulated that the state can delegate some of its competences to NMCs and provide funding to cover the expenses. According to this article, NMCs are financed from the budget and donations.
Article 24 contained provisional rules on the (first) election of NMCs. It stipulated that elections should be organised on the principles of voluntary participation, proportionality and democracy, but not through direct elections. Instead, NMCs would be elected by electoral assemblies composed of deputies belonging to the respective national minorities and electors delegated by a group or organisation of the respective national minority. The provisions of the LPNM on NTA, described above, legalised and made possible the establishment of NMCs and subsequently served as the basis for the comprehensive legislative regulation and consti-tutionalisation of NTA.
After years of delay, the enactment of the LNCNM by the National Assembly in 2009 comprehensively regulated NTA in Serbia (Zakon o nacionalnim savetima nacionalnih
Evolving the legal framework of non-territorial autonomy in Serbia
185 manjina, 2009). Unlike the LPNM in 2002, the LNCNM was not enacted with consent in the National Assembly but exclusively with the votes of the ruling coalition, led by the central-leftist Democratic Party. Comprised of 139 articles, the LNCNM gave NTA concrete content, making NMCs operational. The most important new content was the definitive and precise provisions on the competences of NMCs, such as new electoral rules on the direct election of NMCs. Although the LNCNM represented a real breakthrough in the legal regu-lation of NTA in Serbia, critics highlighted the slow drafting of provisions and their conflict with provisions in other laws in areas such as education, culture, media and official language use (Council of Europe, 2013).
Probably the most significant issue related to NMCs is that of competences, that is, the delegated public powers that enable NMCs to self-govern or at least to participate in deci-sion-making processes in the areas of official language use, native language education, culture and information. The idea behind the 2009 law was to involve NMCs in the decision-making process of central, provincial or local authorities. Most often, this took place in the form of giving opinions through consultation with authorities deciding issues in merits (Korhecz, 2019). For example, Article 15, paragraph 1, point 3 of the LNCNM stipulates that NMCs give opinions on the process used to determine the number of places for pupils in secondary schools that teach in a minority language. In other cases, the involvement of NMCs in deci-sion-making is more significant, such as when NMCs are empowered to propose their own draft decision or when they have consent (veto) power concerning a decision (Đurić, 2019;
Korhecz, 2015). For example, Article 13, paragraph 1, point 1 of the LNCNM stipulates that NMCs propose the curriculum to the Ministry for Education in the case of subjects that are closely related to the minority national identity, like native language, history, fine arts and music. Furthermore, in a few cases, NMCs can make autonomous decisions. For example, Article 22, paragraph 1, point 1 of the LNCNM stipulates that NMCs are empowered to de-termine the official names of settlements in minority languages in areas where the language of the respective national minority is in official use. Most of these competences are related to the management of public educational and cultural institutions that are essential to the identity of the respective national minority (kindergartens, elementary and secondary schools, theatres, libraries, museums, etc.) as well as involvement in decision-making related to school curricula, textbooks, school enrolment plans and so on. It is also important to note that the provisions of NMC competences permitted the right to found public schools and cultural institutions (established by the state, province and local municipalities) to be partly or completely trans-ferred to the NMC on the initiative of the respective national councils.
The second aspect of the LNCNM to provide important developments was related to the election rules. The LNCNM stipulated that NMCs must have 15 to 35 elected members, depending on the size of the represented national minority. The law regulated the procedure for electing NMC members in detail. There are two systems for NMC elections. The first and primary system is the direct election of NMCs by the members of the national minority registered on a separate voting register of minority voters. If the number of registered minority voters is less than 50% of the total number of persons belonging to a minority eligible to vote (in accordance with the latest census), provisions stipulate that elections will be held indirectly by electors nominated by 100 minority voters. According to the relevant provisions, members of NMCs are elected through a proportional electoral system with nominated lists of candi-dates. Lists of candidates can be proposed by organisations of national minorities (political parties and NGOs) and groups of citizens (belonging to the respective national minority)
Tamás Korhecz
186
on the condition that their nomination is supported by 1% of the voters registered with the voting register for the respective national minority. After voting, all lists receive seats in NMCs proportionate to the number of votes they won.
As of 2021, the comprehensive legal framework established in 2009, LNCNM, has been altered and retailored three times. First, the decision of the Constitutional Court in January 2014 declared unconstitutional and invalidated various provisions of the LNCNM in a total of ten articles (Odluka, 2010). (The analyses of the Constitutional Court decision will follow in the second section of this paper.) The second intervention occurred in 2014 with a law amending the LNCNM (Zakon o izmenama i dopunama, 2014), while the third occurred in 2018, with another law amending the LNCNM (Zakon o izmenama i dopunama, 2018).
The 2014 amendments to the LNCNM focused primarily on the provisions on NMC elec-tions (the amendments tackled more than 60 articles of the LNCNM). The basic elements of the electoral system remained the same (direct elections based on a separate voting register, lists of candidates, proportional distribution of seats in NMCs and the electoral system as an alternative way of election), but the provisions were refined and complemented at various points. The most important development was that the periodic NMC elections would later be organised not by the ministry responsible for minority rights but by the Republic’s Electoral Commission, a public authority responsible for organising and monitoring all parliamentary and presidential elections in Serbia.
The last legislative intervention to the LNCNM occurred in June 2018. As in 2014, the 2018 legislative reform was significant mostly in a quantitative sense, as changes involved provisions in around 50 articles. Most changes were related to the competences of NMCs and status issues. At least declaratory, these changes were mainly answers to and reflections on the conclusions of the Constitutional Court in decision IUz-882/2010 from 16 January 2014.
In most cases, the LNCNM provisions aligned with equivalent legal provisions in areas of education, culture and media. Furthermore, the reform defined some preconditions necessary for an NMC to declare a public cultural or educational institution as an institution of partic-ular interest for a national minority. Other amendments sought to regulate the monitoring powers of state authorities towards NMCs in detail, and they provided strict rules and proce-dures for the financing of NMCs. Articles 113, 115 and 117 stipulated new, stricter obliga-tions and restricobliga-tions for NMCs in financial planning and spending. Finally, amendments also complemented and specified provisions regulating the status and responsibility of members of and functionaries in NMCs. According to Article 127, NMCs and their presidents can be charged for misdemeanours in certain cases if they fail to fulfil some duties prescribed in various provisions of the LNCNM. For example, if they fail to properly publish the decisions of the NMC, or if they do not deliver their own documents on the request of administrative authorities. The 2018 amendments can be described as serving mainly to develop state mech-anisms for monitoring and controlling the activities of NMCs, while mostly reducing – and only exceptionally specifying or broadening – their competences.
The functioning of NMCs
In accordance with the 2002 LPNM, the members of the Hungarian minority were the first to elect their NMC in September 2002. By 2008, 13 other national minorities had done the same (Korhecz, 2019). Electoral assemblies were organised by the Ministry of Human and Minority Rights. In 2009, the LNCNM made it possible for minority groups to elect
Evolving the legal framework of non-territorial autonomy in Serbia
187 NMCs democratically and directly via a separate voting register of citizens belonging to each national minority. The second (and the first direct) elections for NMCs were organised on 6 June 2010. Altogether, members of 19 national minorities elected their NMCs – 16 by direct elections using secret ballots and three by an assembly of electors. In the case of the 16 minori-ties who directly elected their NMCs, more than 436,000 voters were registered on separate voting registers and more than 230,000 cast their vote for the competing lists of candidates with a turnout of 54.5% (for the results of the 2010 elections, see Table 1).
The third NMC elections took place on 24 October 2014. Seventeen NMCs were elect-ed directly, while three were electelect-ed by assemblies of electors. Altogether, 456,444 voters of national minorities were registered in direct elections. While 171,799 registered voters cast their votes, the turnout had declined in comparison to 2010, falling under 38% (for the results of the 2014 elections, see Table 2). 17 NMCs were elected directly, and three by the assembly of electors.
The fourth and most recent NMC elections were held on 4 November 2018. Eighteen NMCs were elected directly, while four were elected by the assemblies of electors. The num-ber of registered national minority voters directly electing NMCs climbed to over 467,000, while 208,570 people voted. The turnout was 44% (for the results of the 2018 elections, see Table 3). All three direct elections for NMCs can be qualified as legal, reaching minimal democratic standards and without significant irregularities that might put the whole electoral process into question. All relevant actors, including the participants, agreed that, overall, the Republic’s Electoral Commission organised the last two elections lawfully and professionally.
Even reports that were critical of independent monitoring NGOs confirmed the regularity of the electoral process (Center for Free Elections and Democracy, 2018).
The Constitutional Court of Serbia and NTA
Wojciech Sadurski concluded that eastern and central European Constitutional Courts have been neither intellectually equipped nor morally and politically prepared to interpret mi-nority rights in an expansive, generous manner, and thus that these courts have not played a significant role in shaping the ‘toleration regimes’ (Sadurski, 2014). This statement seems generally valid for the Constitutional Courts of both the Federal Republic of Yugoslavia and Serbia. However, some decisions concerning NTA need further analysis and commentary.
Legal provisions regulating the NTA system in Serbia and NMCs were quickly brought before the Constitutional Court of the Federal Republic of Yugoslavia after the enactment of the LPRNM in 2002. Initiatives questioning the constitutionality of NMCs and collective rights were rejected by the Constitutional Court (Odluka, 2002). These initiatives were brought before the court by various civil organisations and mainly challenged the constitutionality of provisional electoral rules for the election of NMC members by electors. Later, after the enactment of the 2006 Constitution of Serbia, many other constitutional disputes related to the NTA were resolved by the CCS. In some cases, initiators claimed that various legislative provisions violated the constitution on the grounds that the laws stipulated competences to NMCs that fell outside constitutional boundaries. In other cases, the representatives of var-ious national minorities, including national councils, claimed that their constitutional and statutory rights for self-governance were violated by provisions of bylaws and other regulations (Korhecz, 2021).
Tamás Korhecz
188
The cornerstone decision of the CCS (IUz-882/2010 from 16 January 2014) on the constitutionality of the LNCNM
Of the many CCS decisions related to the legal framework of NTA in Serbia, the IUz-882/2010 from 16 January 2014 deserves particular attention. In this case, the CCS demon-strated unusual activism, despite the fact that it generally avoids strict scrutiny of laws enacted by the political branches of power, particularly acts relating to the ruling majority (Beširević, 2014; Papić & Djerić, 2019; Tripković, 2011). In 2010 and 2011, a total of eight initia-tives were brought before the CCS. These initiainitia-tives primarily contested the competences of NMCs in various areas, but they also challenged the possibility of direct elections. The initiators contested various provisions contained in 37 of the 139 articles of the law. The large number of initiatives and contested provisions, the innovative nature of the LNCNM and the poor jurisprudence of the CCS related to minority rights, all spurred the CCS to strive to produce a well-elaborated decision with solid doctrinaire foundations. Furthermore, the fall of the Democrats led by Boris Tadić in May 2012 freed the CCS to a certain extent from its traditional deference and culture of restraint towards the ruling political majority.
In January 2013, with its decisive order, the CCS rejected as ill-founded most of the initiatives related to contested provisions addressing separate voting registers, the electoral process, and competences in the areas of culture and the official use of languages. However, it did decide that challenged provisions in 14 articles merited further adjudication (Rešenje, 2013). Finally, a year later, the CCS declared unconstitutional two articles of the law in their totality and several provisions in another eight articles. Almost all the invalidated provisions were related to the competences of NMCs in education and information (media) and their competences and relations with state and local bodies in protecting minority rights (Korhec, 2015).
The unique significance of this decision is that its reasoning contains many important general statements related to the protection of national minorities and minority rights, includ-ing collective rights. On the one hand, the CCS stressed the necessity of guaranteeinclud-ing (addi-tional) group-specific 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; in other words, equal rights and non-discrimination are not enough for effective equality (Odluka, 2014). On the other hand, the CCS omitted several important internation-al documents and offered no clear answers to some basic questions regarding the definition and legal nature of NMCs (Beretka, 2019). For example, what is the purpose of guaranteeing the collective rights for self-governance?
Although 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 directly vio-lated some provisions of the constitution, but because these provisions did not align with so-called sectorial laws regulating the areas of electronic media, administrative procedure, public broadcasting, the educational system, and so on. According to the CCS, such inconsistencies could violate the constitutional principle of the unity of the legal order, Article 4, paragraph 1 of the constitution. By allowing a sectorial law provision to prevail, the CCS could exclude or drastically limit the ability to exercise collective rights guaranteed by Article 75 of the con-stitution (Kartag-Odri, 2018; Teofilović, 2019). In several other cases, the unconcon-stitutionality of provisions was not based on any concrete provision of the constitution but rather on the
Evolving the legal framework of non-territorial autonomy in Serbia
189 CCS’s restrictive interpretation of the scope of minority rights (Beretka, 2019), or, as the CCS put it, the Legislator went outside actions for the implementation of additional rights of persons belonging to national minorities. A suitable example of such a restrictive interpretation is the annulment of the provision in Article 12, paragraph 1, point 5, which stipulated that NMCs are to participate in the appointment of some school directors via preliminary consent (veto) power. The CCS tried to support its argument that participation in decision-making cannot amount to veto power by referring to Article 15 of the Framework Convention for the Pro-tection of National Minorities and the explanatory report attached to this convention. In its argumentation, the CCS neglected to analyse the statements of the advisory committee for monitoring the framework convention, which could suggest a completely different conclusion (Tóth, 2017). Various scholars have argued that the constitution and laws provide an even less solid basis for such a restrictive constitutional interpretation of minority rights. Katinka Beretka, for example, argues that constitutional provision (Article 75, paragraph 2) stipulates both autonomous decision-making and participation in decision-making; therefore, prelimi-nary consent cannot violate the constitution. On the contrary, consultation is the lowest level of participation in decision-making, if it is a form of participation at all (Beretka, 2019; Vara-di, 2013). Kartag-Odri, meanwhile, refers to the Law on Administrative Procedure, which explicitly stipulates preliminary consent as a means of participation in administrative deci-sion-making (Kartag-Odri, 2018).
The National Assembly’s responses to the CCS decision
The major intervention of the CCS in the provisions of the LNCNM, including its state-ment on and interpretation of constitutional and legislative provisions, in a way pressured the government and National Assembly to draft amendments to LNCNM in accordance with the ‘guidance’ of the CCS. On 3 March 2016, during the EU integration process, the Serbi-an government enacted a special Action PlSerbi-an for the Implementation of National Minority Rights, explicitly referring to amending the LNCNM in accordance with the statements of the CCS. The National Assembly should have taken action on several provisions. First, many provisions in the LNCNM were invalidated because they were not compatible with sectorial laws. The National Assembly should thus have either amended the sectorial laws and reinstat-ed the invalidatreinstat-ed provisions, or replacreinstat-ed the invalidatreinstat-ed provisions with new ones to corre-spond with provisions in the sectorial laws. Second, the provisions ‘saved’ by the interpretive decision of the CCS should have been amended in accordance with the CCS interpretation.
Third, the provisions that were invalidated by the CCS because they went outside actions for the implementation of additional rights of persons belonging to national minorities should have been replaced in an acceptable manner.
After years of drafting, the amendments were finally enacted in June 2018. The results were not surprising. Legislators implemented the CCS decision in a way that generally cur-tailed the NMCs’ powers. Namely, sectorial laws were not amended to enable the restoration of the NMCs’ previous, stronger powers; rather, provisions from the sectorial laws were in-corporated into the LNCNM. No amendments empowered NMCs to make decisions au-tonomously. It is also noteworthy that the LNCNM was bolstered with several provisions sanctioning NMCs and their presidents if they breach the provisions of the LNCNM, while no sanctions were stipulated for authorities and their officials for violating the powers of the NMCs. In sum, the National Assembly operationalised the CCS decision in a way that
Tamás Korhecz
190
further curtailed the powers of NMCs and expanded monitory powers of state authorities towards NMCs. In contrast, some issues and legal controversies remained without a legislative response even after the 2018 amendments, particularly those related to the legal character and status of NMCs.
Unresolved issues around NTA in Serbia
After 18 years of the practical functioning of NTA and evolutions in its legal framework in Serbia, we can identify several chronic problems that prevent NMCs not only from finding a stable place in the state structure and legal order but from decisively contributing to the preservation of ethnic identity and full and effective equality between the ethnic majority and national minorities.
A public or private institution?
The status and position of NMCs are still not properly defined in the relevant legislative acts. Are they democratically elected public institutions with public power/competences and, as such, part of the state organisation, like territorial self-governments (Jovanović, 2013)?
Or are they private corporations, institutions like NGOs, consultative bodies? The current legislative framework is confused, controversial and fluid. For example, budgetary regulations and laws on public property treat NMCs as private associations, while electoral rules treat them as democratic and representative public bodies like the National Assembly or elected local councils (Beretka, 2019). Weak attempts to clarify the legal framework in this respect have failed to shed light on the situation.
Should party politics remain inside or outside NMCs?
The well-known Serbian academic Slobodan Jovanović defined political parties in Serbia at the beginning of the 20th century as companies for the exploitation of political power or machines for acquiring power (Jovanović, 1922). It therefore seems natural for political par-ties to use every opportunity to boost their popularity, power and influence. From the very beginning in 2002, one of the disputed issues of legal regulation was the involvement, and particularly the level of involvement, of party politics in NMCs. The election rules have al-ways allowed ethnic political parties to participate openly in NMC elections; furthermore, through NGOs, elections are also open to other (non-ethnic minority) political parties. NMC elections, particularly in the case of the biggest minority groups, are often a stage for com-petition between ethnic political parties within a national community. Political parties (both ethnic and non-ethnic) competing for seats in NMCs try to demonstrate their influence and support within the minority community. Furthermore, the ruling majority in an NMC can utilise institutions, primarily the media, to support their claims for power in the broader polit-ical arena. As such, NMCs can become useful tools for politpolit-ical parties but less useful as tools for a national minority asserting its rights. In fact, the practical functioning of some NMCs reveals that the ruling majority often uses its power to suppress political opposition in the NMC, and in doing so, suppresses plurality. This is a particularly pertinent issue in the case of minority language media outlets, which are founded and directed by NMCs but receive