Procedure Launched for Constitutional Change: No Concrete Proposals as Yet

Kosovo Talks, Constitutional Change - The Controversy of the Preamble

The Serbian parliament’s Committee on Constitutional Affairs passed on June 14 a proposal for constitutional reform of the judiciary, which the Serbian government forwarded to Parliament late last November. The motion the Committee has deliberated only listed the articles and provisions that needed to be amended, but the text of the new amendments has yet to be submitted. The proposal has been sent to MPs, and if approved by a two-thirds majority, the procedure for constitutional change will be launched, including a public debate and the actual drafting of the amendments.

The change encompasses Article 4 of the Constitution, Articles 142-165, the provisions of Article 99 referring to the authority of the National Assembly, Article 105 (decision-making in the National Assembly) and parts of Article 172 (the election and appointment of the Constitutional Court’s justices). Minister of Justice Nela Kuburovic explained that the amendments arose from Serbia’s duty to strengthen institutions and the rule of law, as provided by national legislation and international laws, and that the country would use the process to carry out necessary reforms in the judiciary, solidify the independence of courts and make them more efficient.

The minister specified that the constitutional reform would cover the position of the judiciary, public prosecutors’ offices, powers of the National Assembly, and its voting procedure, the appointment of justices of the Constitutional Court and the position of the three branches of government in Serbia. “Serbia is required to reduce the influence of legislative and executive branches of government in the process of electing judges, presidents of courts, public prosecutors and their deputies, and members of the High Prosecution Council, and to define accurately the role of the Judicial Academy,” Kuborovic said at the session of the Committee.

It was last year that the Ministry of Justice had a draft of constitutional amendments on the judiciary and prosecution offices ready. The expectation was that the Committee on Constitutional Affairs would have it shortly thereafter, but that didn’t happen. The chairman of the Committee, Djordje Komlenski, of the Movement of Socialists, a member of the ruling coalition, said that together with the motion for constitutional change, the Committee should have received a concrete normative draft. The minister said that the cabinet would not submit draft amendments, because it is not authorized to do so, explaining that it is the Committee’s job to offer the final draft to MPs.

Minister Kuburovic also said that the amendments her ministry had prepared are a working version of sorts the Committee could use as a basis for debate. During the drafting process, the amendments were criticized by professional associations of judges and prosecutors for failing to free the judiciary from political influence, i.e. will not contribute to its independence. The Venice Commission has also discussed the ministry’s amendments, so the work is hardly unlikely to have been in vain. They will quite possibly play an important role in the process.

Amendments and Procedure

According to the working version of the amendments the Ministry of Justice had prepared, the election of five members of the High Judicial Council and four members of the State Prosecutorial Council will require a two-thirds majority in the parliament. Both councils are composed of ten members in total. Five members of the High Judicial Council are elected by the parliament, at the proposal of the competent committee. They are elected from among prominent lawyers, in a public contest, requiring the support of two-thirds of 250 MPs. The other five members of the Council are elected by judges.

The State Prosecutorial Council is expected to have ten members. Four of them are to be elected by public prosecutors and their deputies from among the latter, while the Supreme Public Prosecutor and the Minister of Justice will also hold a seat. The remaining four members are elected by the National Assembly, from among prominent lawyers. The election needs to be supported by a two-thirds majority in the parliament, instead of three-fifths of MPs, as previously provided. The three-fifths majority continues to apply on the election of the Supreme Public Prosecutor.

The Serbian Constitution stipulates that a motion for constitutional change can be submitted by no less than a third of the total number of MPs, the President of the Republic, the Government of the Republic of Serbia and no less than 150,000 voters. The motion is passed by a two-thirds majority of all MPs. If the motion fails to receive the required two-thirds majority support, constitutional change on the issues provided by the rejected amendments cannot be re-launched for another 12 months. If the National Assembly accepts the motion, an act allowing for the constitutional change will be drafted and deliberated.

The National Assembly passes the act based on the support of two-thirds of the total number of MPs, and may rule that the act be confirmed in a referendum. The parliament is obligated to put the act for constitutional change on the referendum if it concerns the preamble to the Constitution, the principles of the Constitution, human and minority rights and freedoms, the structure of the government, proclamation of a war or a state of emergency, derogations of human and minority rights in a war or during a state of emergency, or the procedure for constitutional change.

When an act for constitutional change is put up for confirmation in a referendum, the citizens of Serbia have to vote no later than within 60 days upon the passage of the act. The constitutional change is approved if a majority of the voters taking part in the referendum have supported it. The act confirmed in the referendum goes into force when proclaimed by the National Assembly.