The decision of the Constitutional Court of Serbia from December 10 of this year, which rejected the request for an assessment of the constitutionality of the Brussels Agreement because it is a political, not a legal issue, reminds of the year 1992. Even 22 years ago, the Constitutional Court did not deal with the legal background, legal framework and legal consequences of important state issues, which directed the destiny of the country and people, with the explanation that it was about political agreements for which it is not competent.
That's how political agreements in Serbia were passed, and they are still passed today, bypassing the Constitution.
In 1992, before the Constitutional Court of Serbia was an initiative to evaluate the constitutionality of the "Principles of the Common State" (the third Yugoslavia composed of Serbia and Montenegro), and an initiative to evaluate the constitutionality of the official proposal of the then Serbian President Slobodan Milosevic to the Greek Prime Minister Konstantin Mitsotakis that the SR Yugoslavia unites with the Republic of Greece in a confederal union.
I know that very well, because I submitted both to the Court. The first on February 20, 1992, and the second in July of the same year. And while today's Constitutional Court needed more than a year to decide (by majority vote), the one back then was more efficient. He answered in two, three months.
POLICY AND LAW: The Court publicly discussed the initiative for constitutional review of the foundation of the Federal Republic of Yugoslavia (FRY) on April 16, 1992, timely - 11 days before the FRY was officially formed as a joint state of the republics of Serbia and Montenegro. There was, however, a theoretical chance that the decision of the Constitutional Court would delay the creation of a new state, although at that time only the naive could believe in such an outcome. Today, when assessing the constitutionality of the Brussels Agreement, even if the Court decided that it was not in accordance with the Constitution and the law, in a situation where the Agreement is already widely applied, the political, legal and social consequences would be almost irreversible. .
The agreement signed by Dacic and Thaci in Brussels on April 19, 2013 provided for, among other things, the formation of a community of Serbian municipalities in the north of Kosovo and Metohija, the abolition of security structures and judicial institutions of Serbia in Kosovo and Metohija. The request that the Agreement be put under the scrutiny of the constitutionality followed both because of the method, because of the content and because of the consequences.
And while here the impression is that Serbia is slowly but surely slipping away (if it hasn't already) part of its territory, in the case of the formation of the FR Yugoslavia from Serbia and Montenegro, the territory of that future state was increased, but in that process there were elements that caused justified suspicion that the procedure, on the Serbian side, was not carried out as foreseen by the highest legal act of the time - the Constitution.
The first question was whether the Serbian delegation that participated in the creation of the "Principles" of the common state (Slobodan Milošević, Aleksandar Bakočević, Radoman Božović, Borisav Jović and Vladan Kutlešić) had a legitimate constitutional mandate of the Serbian people for that work. The initiative to the Constitutional Court of Serbia on this occasion included the following, among other things.
"I do not go into the motives and expediency of the 'Principles of a common state', nor do I deal with the questions of whether, to what extent, and under what conditions it is good for Serbia to continue the state continuity of Avnojev's Yugoslavia, by creating a new, third Yugoslavia by entering into a state union with Montenegro. After all, the Constitutional Court is not competent to assess that. However, I point out to the Court the fact that the representatives of the Republic of Serbia, who signed the 'Principles' on behalf of the Serbian people, did not have the mandate of the Serbian Parliament to do so... The Serbian people did not express their opinion on such an important issue in the referendum, as required by Article 2. of the Constitution... By the opinion of the Constitutional Court of Yugoslavia and its letter to the Assembly of Yugoslavia regarding the unconstitutional and nowhere officially announced decision of the Presidency of the SFRY on the withdrawal of the JNA from the borders of the SFRY in Slovenia, and the release of Slovenians from military service in the JNA from September 1991, established constitutional judicial practice on the treatment of unconstitutional acts of the highest authorities and individuals. Hence the possibility for the Constitutional Court to pronounce on this initiative."
In the light of everything that happened after that 1992, after various political agreements and manipulations, both in Serbia and in the then-ruling, and still in power, the Socialist Party of Serbia (SPS), it was interesting to see the explanation, interpretation or justification of that party, all the same, why is the people in Serbia for the union of Serbia and Montenegro under the name of Yugoslavia, although they were not asked about it: "The Serbian people declared themselves in favor of the Yugoslav option by voting for the SPS in the elections, so there is no need for a referendum"!
The Yugoslav option then implied a state of only Serbs and Montenegrins, in contrast to the Yugoslav vision of King Alexander I Karađorđević the Unifier, who saw Yugoslavia from Triglav to Đevđelia. Voting in the multi-party elections in which the SPS won was declared a referendum surrogate. By the way, a referendum was held in Montenegro on March 1, 1992. To the question "are you in favor of Montenegro as a sovereign republic continuing to live in the common state of Yugoslavia on a completely equal basis with other republics that wish to do so", 95,65 percent of the people who came out said "yes". Although the government at that time did not give the citizens the opportunity to say explicitly whether they were for Yugoslavia or an independent Serbia, the representatives of that government signed the "Principles" of the formation of the new Yugoslavia.
"According to the understanding of the Constitutional Court of Serbia, the document 'Fundamentals of the Organization and Functioning of Yugoslavia as a Common State' both in its content and in the manner in which it was adopted represents a political agreement of the highest representatives of Serbia and Montenegro. The Constitutional Court is not competent to assess the constitutionality of such a document," wrote, among other things, and signed by the then President of the Constitutional Court, Balša Špadijer, in a short notice, in case Iy-60/92, which arrived at my home address on April 30, the third on the day of the existence of the fresh, new state of FRY.
FORM AND ESSENCE: That it is not a legal act, and that is why the Court cannot accept the initiative for the evaluation of constitutionality, was the essence of the court's answer regarding Slobodan Milošević's proposal to Mitsotakis, on June 25, 1992, that FR Yugoslavia and Greece become a confederation.
The Serbian president behaved like the president of that truncated Yugoslavia, as some called it at the time. To make it more cheerful, in the announcement of his interview on that occasion, on a Greek television, this potential "state union" was also called the "Serbian-Greek confederation". At the moment when this fantastic idea came to his mind, FR Yugoslavia and Serbia within it were on the threshold of UN sanctions, and Greece was a member of the European Union.
"Milošević usurped the authority of the Assembly of the FRY, causing great damage to Serbia and Montenegro." The Constitutional Court of Serbia is not competent for that, but Milosevic also violated the Constitution of Serbia, whose president he is, because it is not his duty, but the Republic of Serbia's, to regulate and ensure the sovereignty, independence and territorial integrity of Serbia, its international position and relations with other countries. Milošević usurped the jurisdiction of the Assembly of Serbia in the most reckless way and, to put it mildly, with an amateurish, politically frivolous and infantile act, he ended the already catastrophically bad reputation of Serbia and the Serbian people in the international community", it was stated, among other things, in this initiative.
While noting that the Court could declare itself incompetent, the initiative indicated that it is the social obligation of the Court to point out to the Parliament of Serbia, the President of the Republic and the people, who and how is competent to create the future of the country, which would contribute to putting an end to abuse power and the identification of one person with the state and the entire nation.
The Constitutional Court did not indicate anything. Neither to the Parliament nor to the people, and not yet to the president. He rejected the initiative and declared himself incompetent.
As sloppily, both politically and legally, these two stories began and ended. After 11 years, with the Constitutional Charter of 2003, the Federal Republic of Yugoslavia became the Community of Serbia and Montenegro (SCG), and after three years that creation also disintegrated. Milošević's "confederate proposal", as a result of legal usurpation, was not, it soon became clear, even of a political character, but, to put it mildly, humorous. The Greeks, of course, did not take this offer seriously either. No one ever mentioned it again, not even Milosevic himself. The desolate desire was reduced to nothing more than a rumor, and the Constitutional Court of Serbia at the time could not find the strength to say that.
Several important issues are common in the cases of the Brussels Agreement, the way in which Serbia formed the FRY and Milošević's proposal for a confederation with Greece. Whether and to what extent the political form of an agreement or agreement can absolve from responsibility for its legal essence and consequences? Where is the border between politics and rights that permeate everything? Who, if not the Constitutional Court, will give answers to the questions of whether a political agreement, which produces legal consequences, is in accordance with the constitution? Maybe the answers are on one of the 40 pages of explanations of the court's decision on lack of jurisdiction on the Brussels Agreement. We'll see.
If the agreement is a policy, which is not dealt with by the Constitutional Court, then how this policy is reflected in the domestic legal system, and must be entered (as a law, regulation...) is subject to examination as to whether it is in accordance with the Constitution of Serbia and the laws. There may be a catch. Because, in February of this year, the Constitutional Court of Serbia declared unconstitutional and illegal the Regulation on the special way of processing data contained in the land cadastre for AP Kosovo and Metohija, made on the basis of the agreement in Brussels from 2011 between the then heads of the negotiation teams of Serbia and Kosovo, Borislav Stefanović and Edita Tahiri. The Brussels Agreement of April 19, 2013 was accepted by the Government as a conclusion, and it appeared in the Parliament as a report, which was accepted.
The impression is that the Constitutional Court, trying to get to the end as quickly as possible, running away from the beginning, and taking the burden of responsibility off itself, grasps the forms like a drunkard, neglecting the content. If they are at least wrapped up a little, it is not even necessary that it be nice and careful, political agreements have, well, a chance to go past the Constitution and the law in Serbia.
The author is an editor at the Fonet agency
