Since the adoption of the Constitution in 2006, the need for constitutional revision was discussed. There was even a popular initiative on the subject. Given that the country is on the European integration path, the harmonization of national law with the acquis communautaire requires, among other things, a reform in the field of justice. Hence, on December 4th 2020 the Serbian Government submitted a Constitutional Amendment Proposal, which refers to the regulation of the judiciary and the constitutional provisions in that regard.
On May 6th 2021, the Committee on Constitutional Issues and Legislation determined that the proposal was submitted by an authorized proposer. Except by the Government, this proposal can be submitted by 150,000 citizens, one third of MPs and the President of the Republic. The constitutional amendment proposal was presented to the National Assembly on June 7th, which decided with a two-thirds majority to proceed with the change of the Constitution. This is the first phase in the constitutional revision procedure, because the Constitutional Amendment Act is yet to be considered, adopted and drafted. The Government's proposal should be distinguished from the Constitutional Amendment Act because the latter is based on that proposal and precisely formulates the amendment subject. This act is drafted by the Committee on Constitutional Issues and Legislation. However, on this occasion, the Committee formed a Work Group to draft it. At its first meeting, the Work Group stated that they will go beyond the Government’s proposal and consider the conclusions made at the public hearings held by the Committee after the constitutional revision procedure began. The expert public took a critical stance on judicial reform solutions even during the preparation of the Government's proposal, so it is to be expected that the Work Group will take these opinions into account as well.
The question may arise here as to whether the public hearings, organized after the initiation of the procedure, are sufficient to meet the objectives of the public debate on the constitutional revision. Although the importance of public hearings should not be diminished, a public hearing will fulfill its purpose only if citizens and the expert public are given the opportunity to express their views on the act they’re supposed to decide on. Hence, the public debate should be organized after the Assembly Committee drafts the Constitutional Amendment Act. During the same phase, this act should be sent to the Venice Commission, for expert evaluation. Although there was talk that the Venice Commission was aware of the content during the preparation of the Government's proposal to change the Constitution (that is, that it noted the proposal), the fact is that the Constitutional Amendment Act that citizens will decide on was not officially considered by this advisory body. Moreover, the Government's proposal and the Constitutional Amendment Act do not necessarily have to coincide. The National Assembly does decide on the change of those constitutional provisions initiated by the proposer, but as the Assembly is the holder of the constitutional power, it can draft the act independently.
After the completion of all the aforementioned actions, the National Assembly will discuss in the plenum and make a decision on the Constitutional Amendment Act by a two-thirds majority of all MPs. However, the constitutional revision procedure does not end here. The provisions in question regulate government organization and therefore must be put to a constitutional referendum.
The constitutional referendum is regulated in a relaxed manner. The reason for that can be found in the revision procedure of the previous Constitution (1990), which could be changed in a referendum only by a majority of half of all citizens registered to vote. This rigid condition led to the referendum for the adoption of the Constitution in 2006 lasting two days in order to secure the necessary referendum majority. From the very beginning, cracks were starting to show in the legitimacy foundation of the highest general legal act of the first independent Republic. It is not common for a referendum to last more than one day - especially in a country with a relatively small number of voters and a territory that does not require special technical conditions for voting stages.
In order to prevent the difficulties caused by the rigid procedure of the previous Constitution, the new Constitution (2006) not only reduced the referendum majority, but also omitted the so-called referendum quorum. The decision on the constitutional amendment is made by the majority of citizens who vote for the amending act, regardless of the number of voters that went to the referendum. Therefore, in the national law of Serbia, the constitutional referendum will be legally valid even if the majority of registered voters do not participate, which raises the question of the legitimacy of the highest general legal act in case of low turnout. In the formal sense, for a positive referendum decision, it is enough to get a larger number of votes that support the Amendment Act compared to those who voted against. The decision will be made regardless of the size of the majority in relation to the total number of citizens with the right to vote (for example, one half or one quarter of the registered voters is not required).
Given this constitutional rule, citizens should be active in the referendum process. For those who do not agree with the amendments, it is not enough to abstain and not respond to the referendum call. When there is no mandatory turnout threshold for a referendum to be successful, it is pivotal for citizens to express their views with an explicit answer if they oppose a constitutional revision.
It remains to be seen how big the turnout will be and how will that affect the legitimacy of the Constitutional Amendment Act. The short Serbian constitutional history since introducing the multi-party system in the nineties is filled with constitutional acts that were disputed because of lack of legitimacy. Such was the case of the 1990 Constitution of Serbia adopted by the socialist Assembly just before the first multi-party elections were held, then the Constitution of the Federal Republic of Yugoslavia in 1992, adopted by the Federal Assembly of the socialist Federation without quorum because the delegations of self-proclaimed republics have previously withdrawn from it, all to the current Constitution adopted in 2006 without a public hearing on a referendum that lasted for two days.
Irena Pejić, phd
Tenured professor at Faculty of Law, University of Niš