Volume 10 Number 4

Fall 2001

Constitutional Watch
     A country-by-country update on constitutional politics in Eastern Europe and the ex-USSR

Yugoslavia - In the aftermath of Slobodan Milosevic's extradition, the federal government seems to have held together. However, political infighting between the federal president, Vojislav Kostunica, and the Serbian prime minister, Zoran Djindjic, continued, threatening the government's stability and interfering with the implementation of the reforms necessary to improve economic conditions. Although the government has introduced some of these measures, the economic outlook for the country remains bleak. Unemployment stands at nearly 30 percent; from 30 to 40 percent of the population lives below the poverty line; and the annual GDP is $10 billion, a third of what it was in 1989 and $2 billion less than the foreign debt.

After the resignation of the federal prime minister, Zoran Zizic, over the extradition, the Democratic Opposition of Serbia (DOS) and the Montenegrin Together for Yugoslavia coalition-which rule together on the federal level-began talks on forming a new government. On July 13, the two coalitions signed a draft agreement granting five of the nine ministries, all told, to DOS and four plus the prime ministership to the Montenegrin coalition. On July 16, the Socialist People's Party (SPP), the largest party in the Montenegrin coalition, proposed Dragisa Pesic for the post of federal prime minister. Many objected, claiming that Pesic was a weak and uninspiring figure and that his selection would clearly indicate that no one takes the federal government seriously. Nevertheless, the new government was approved on July 24, and Pesic committed it to pursuing two goals: first, Yugoslavia's reintegration into the international community and, second, improved relations between Serbia and Montenegro. That the federal government would manage to survive intact was not at all a foregone conclusion. Many feared it would collapse in the wake of Milosevic's transfer to The Hague, when the Montenegrin parties in the ruling federal coalition pulled out of the government.

With a cooling of tensions within the federal government, attention has shifted to Belgrade. The Milosevic extradition served to highlight the differences between President Kostunica, who opposed Milosevic's transfer and is less open to cooperation with The Hague Tribunal, and Serbia's prime minister, Zoran Djindjic, who supported and effected the transfer. Although policy differences between the two do exist, the tension is mainly a power struggle. The crisis exploded this summer in the wake of the assassination, on August 3, of Momir Gavrilovic, a former police officer who had worked for the Milosevic-era secret police but had been dismissed in 1999. According to an article published in the daily newspaper Blic, Gavrilovic had met with Kostunica just before his murder and discussed the involvement of high-ranking government officials in corrupt and criminal activities as well as their links to mafia bosses. The Blic editor-in-chief alleged that he had received the information from a Kostunica adviser. Many observers surmised that the information had been deliberately leaked to discredit Djindjic and his government who, in turn, immediately demanded that the journalist reveal his sources.

The crisis escalated on August 17, when Kostunica's Democratic Party of Serbia (DePS) announced the withdrawal of its two ministers from Djindjic's government. A few weeks later, the party declared its willingness to rejoin the governing coalition, on the condition that it take specific steps to address corruption. Ultimately, the DePS ministers did not rejoin the government, and the party did not rejoin the coalition.

The political conflict took a dangerous turn in mid-November, when a paramilitary unit of the state-security forces, the Red Berets, blockaded a main road into Belgrade with armored vehicles. They were protesting the extradition of two Bosnian Serbs, twins, accused of murder and torture, to The Hague Tribunal. They were especially incensed by the involvement of some from their own ranks in the arrest of the brothers, claiming that they had been tricked into participation by being told the two men were common criminals. The Red Berets demanded the resignation of Interior Minister Dusan Mihajlovic and declared that any extraditions to The Hague would be illegal. Kostunica supported this position, adding that cooperation with The Hague would require special legislation.

This position had been bolstered a week earlier, on November 6, when a Constitutional Court ruling held that a government decree "on procedures of cooperation with the international criminal tribunal" was "not in accordance with the Constitution of the Federal Republic of Yugoslavia and with the law on criminal procedure." (See Yugoslavia Update, EECR, Vol. 10, Nos. 2/3, Spring/Summer 2001.) Djindjic ignored this latest ruling, claiming that the court was stacked with Milosevic appointees, and insisted that no additional legislation would be required to cooperate with The Hague, since a UN mandate takes precedence over Yugoslav law. Djindjic also managed to assert his control over the rogue paramilitary unit, forcefully declaring that security forces should stay out of politics. He refused the resignation of Interior Minister Mihajlovic and transferred the Red Berets from the security forces to the civilian police, under the direct supervision of the interior ministry. There was widespread speculation that the reason for the Red Beret opposition to The Hague Tribunal stemmed from the fact that some of their own people would be indicted. The crisis is likely to intensify as The Hague Tribunal steps up its investigations and demands for access and extraditions.

For his own part, Milosevic continues to resist The Hague proceedings. On August 24, he filed a suit with a local Dutch court claiming that the tribunal was illegal since it had not been established by an international agreement. The court rejected his claims. He then accused the tribunal, during the second status conference before the court on August 30, of being an illegal instrument of NATO and US power. On November 22, the indictment against Milosevic was expanded to include charges of genocide in Bosnia. Until now, he had only been charged with crimes in Kosovo and Croatia.

On May 24, the Serbian police announced they had launched investigations into crimes committed by 66 of their officers during the early days of NATO strikes. The charges included murder, theft, arson, and armed robbery. All 66 had been suspended, except for Sreten Lukic, who was promoted to one of the top positions in the Serbian police force even though previously he had commanded military forces in Kosovo in 1998 and 1999. On July 15, the local court in Prokuplje started proceedings against Sasa Cvijetan and another unnamed defendant, both of whom are charged with the murder of 19 Albanians in March 1999. Very few of the trials that began or were announced in the spring (see Yugoslavia Update, EECR, Vol. 10, Nos. 2/3, Spring/Summer 2001) have made satisfactory progress. The trial of Dragoljub Milanovic, the former head of Serbian television who is charged with willfully allowing 16 employees to be killed in NATO bombing on April 23, 1999, achieved little headway over the summer. On September 14, the trial adjourned because Milanovic's lawyer quit, explaining he was denied access to essential documents. The charges against Rade Markovic, the former state-security boss, initially charged with organizing a murder, were suddenly changed to revealing state secrets. On July 6, he was sentenced to one year in prison.

Both the Serbian and federal constitutional courts, as well as the local courts, remain in shambles. On June 12, yet another judge from the Serbian Constitutional Court retired, leaving only five judges on the nine-member bench. On the same day, the Serbian parliament dismissed a group of judges from the local courts before their tenure had expired. The dismissed judges were shifted to lower courts. One of the most infamous judges dismissed in this shakeout was Milena Arezina, president of the commercial court. The Ministry of Justice had called for her dismissal on the grounds of unprofessional and unethical conduct. On September 20, parliament removed another 87 judges from local and commercial courts, as well as 13 public prosecutors. The legislature also reinstated Slobodan Vucetic, who had been unconstitutionally dismissed by the Milosevic regime in 1999, to the Constitutional Court, and Radovan Conguric to the Supreme Court. On September 6, the federal parliament appointed four new judges to the federal Constitutional Court-two from Montenegro (Veselin Lekic and Milorad Gogic) and two from Serbia (Momcilo Grubac and Aleksandar Simic).

On June 27, parliament adopted a new law on privatization. The law defines two different mechanisms for privatization: the first deals with tender offers for larger firms that are likely to be sold to foreign buyers (Arts. 26-33); and the second with public auctions for smaller firms that will be sold to domestic buyers (Arts. 34-40). Articles 19 and 20 allow for the restructuring of the largest companies-mostly in the automobile and metal industries-which could entail significant layoffs, before selling the companies to foreign buyers. In order to avoid the common scenario, in which buyers immediately strip companies of their assets, the government adopted a policy of selling firms only to strategic partners, who will invest in the firms with the obligation that they continue operations. To this end, parliament created a supervisory body for the privatization process, called the Agency for Privatization. This agency is charged with initiating the privatization process, announcing tenders and public auctions, screening offers from strategic partners, and supervising the entire process (Art. 6). While the law marks a significant step along the path of economic reform, it still leaves the door open to corruption. The agency is to be controlled by the government (Art. 18), which is charged with appointing the agency's members (Art. 12), while parliament is for the most part excluded from the process, with no oversight responsibilities.

The most controversial piece of legislation adopted by parliament recently was the law for the one-off tax on extra profit. The law was adopted, on June 21, to address the question of those people who had used special benefits, such as budget funds, bank loans, privileged and monopoly status in importing and exporting goods, benefits in the black market, and so on, to increase their wealth during the Milosevic era. The taxes range from 30 percent for those whose assets are under $50,000 to 90 percent for those whose assets exceed $5 million (Art. 10). The deadline to report tax liability was August 8. According to the head of the Financial and Economic Abuse Commission, 497 taxpayers reported profits by this date. Criminal proceedings will be launched against those who have failed to do so (Arts. 32 and 33). On September 21, the commission reported that a total of $0.7 million had been paid. The amount to be paid by the end of 2001 is estimated to be $70 million.

Montenegro continues to limp along in its drive toward independence. Parliamentary elections, held in April 2001, showed that the electorate is almost evenly divided over the republic's place in a federal Yugoslavia. The proindependence coalition Victory Belongs to Montenegro, led by President Milo Djukanovic, won a very narrow victory over the profederation Together for Yugoslavia coalition. The minority government is backed by the radically proindependence Liberal Alliance (LA), which holds six seats in parliament. Discussions among the political parties have been dominated by the question of the republic's status. With negotiations at a complete standstill, however, Djukanovic's Democratic Party of Socialists (DPS) coalition and LA have declared that they will hold a referendum on independence in April 2002, although the exact rules for the measure still need to be ironed out. They want the referendum to be decided by a majority of those who turn out to vote. But the pro-Yugoslavia forces insist that a majority of the total electorate should endorse the plebiscite for it to win. In addition, they want all Montenegrins-including those living in Serbia-to take part in the vote. Whether these political forces can reach an agreement is still unclear. Serbian authorities also favor a qualified majority for the referendum. For their part, the Serbian public seems to have tired of the debate, and many now view Montenegro as an impediment to the progress of reform in Serbia. A poll taken in early November showed that just 52 percent of those questioned favor a joint state-a decrease from earlier polls-while 41 percent want independence for the republics.

However, the strongest opposition to the referendum now comes from the European Union. EU officials fear that independence for Montenegro would further destabilize the Balkans by bolstering Kosovo's own drive toward independence. At the end of November, EU foreign policy chief Javier Solana traveled to Belgrade and delivered some harsh words to the Montenegrin independence forces, assuring them that separation from Yugoslavia was not a fast track to EU membership, stating that he supports a "loose federation" between the two republics.

All of the back and forth over the republic's status was played out against the backdrop of an intensifying economic crisis. With Milosevic out of the picture, support for Montenegro has dried up in the international community-and with it, the millions of dollars in aid. Since the government can no longer present itself as the major force for democratic reform in Yugoslavia, many countries have cut their contributions. The government, which has been largely dependent on aid money, now faces a 20 percent shortfall. Although it has launched a few initiatives-such as selling government bonds-to fill the gaps, austerity measures will be necessary, potentially causing social unrest. The government staved off a general strike, called by the largest trade union, by agreeing to increase the minimum wage as of January 2002. However, its ability to do so is questionable. Inflation currently stands at 20 percent, and blackouts are not uncommon. Thousands of state employees have gone unpaid for months, and pension benefits are often delayed.

After years of ethnic violence, Albanians and Serbs voted in Kosovo, on November 17, in the first elections for a new regional assembly. By all accounts, the elections were a resounding success, with no incidents of violence and a reasonably high turnout, even among Serbs. As expected, the major Albanian parties dominated in the polls, with 46.7 percent of the vote and 47 seats going to the Democratic League of Kosovo (DLK), headed by Ibrahim Rugova, and 25.6 percent of the vote and 26 seats to the Democratic Party of Kosovo (DPK). However, somewhat surprisingly, the Serbian Return Coalition had the third best showing, with nearly 11 percent, beating out the fourth place Alliance for the Future of Kosovo (AFK), with its 7.8 percent. In all, 14 parties will be represented in the assembly. However, no single party garnered sufficient votes to control the 61 of 120 seats required to form a government, and so coalition negotiations have begun.

Since 1999, Kosovo has been governed by the Interim Administrative Council (IAC), as provided for in United Nations Security Council Resolution (UNSCR) 1244. Although still technically part of the Federal Republic of Yugoslavia, effectively it has been an international protectorate administered by the United Nations Mission in Kosovo (UNMIK) since the withdrawal of Serbian troops. The elections were held-in accordance with the provisions of the Constitutional Framework (see Yugoslavia Update, EECR, Vol. 10, Nos. 2/3, Spring/Summer 2001) agreed to in May by representatives from Kosovo and officials from UNMIK-using a system of proportional representation where the entire province of Kosovo constitutes a single electoral district. Of the 120 seats in the assembly, only 100 were directly elected, while the remaining 20 were set aside for representatives of ethnic minorities: 10 for Serbians and 10 for the other, smaller minorities, the Roma, Ashkali, Bosniacs, Egyptians, Gorani, and Turks.

As for the actual governing structures, any political formation that achieves a majority in the assembly is charged with forming a government. The government consists of a president, prime minister, and nine ministers, at least one of whom must be Serbian. As provided for in the Constitutional Framework, the president is elected by the assembly, and then appoints a prime minister, who, in turn, selects the nine government ministers. This government presumably will assume the administrative responsibilities of the IAC's international officials, though the logistical details of the transition have not been fully worked out.

Although these elections were held in order to establish self-governing institutions for Kosovo, as directed by UNSCR 1244, these institutions are constrained from having any authority in matters related to Kosovo's independence from Yugoslavia, which remains within the purview of UNMIK. In addition, UNMIK reserves the right to dissolve the assembly if it acts outside the parameters established in UNSCR 1244 and to give or withhold final approval of the budget. It continues to bear responsibility for the province's external relations. Furthermore, the president's role, which will be narrowly circumscribed, will be largely symbolic and ceremonial, lacking any formal power to represent Kosovo in international relations. There is a danger that the precarious balance between self-government and international custodianship under UNMIK will prove impossible to strike, with Serbs seeking to undermine the new self-governing institutions and Albanians seeing them as anticipating independence.

In spite of the limitations imposed by UNSCR 1244, the issue of independence looms large in the political landscape of Kosovo. The three major Albanian parties are all vehemently in favor of immediate independence. Indeed, the day after his party won a large plurality in the elections, DLK's Rugova announced that his first priority would be to seek independence for the province. The issue is of equal importance for Serbs, who fear that the elections might be a first step toward a final break with Yugoslavia, which would leave them an isolated and despised minority in an independent Kosovo. They now constitute only about 5 percent of the population, down from more than 10 percent before 1999, and are concentrated in isolated enclaves under the protection of KFOR troops.

Indeed, up until two weeks prior to the vote, the Serb minority in Kosovo was threatening to boycott the elections, thereby denying them legitimacy. Only after aggressive lobbying by the Special Representative of the Secretary-General, Hans Haekkerup, and the negotiation of an agreement between Haekkerup and Belgrade, did Serbian leaders call for Kosovo Serbs to participate in the voting. The agreement was signed, on November 5, by Haekkerup and the Serbian Deputy Prime Minister Nebojsa Covic, who is Belgrade's point person in Kosovo, and offered guarantees that the newly elected government of Kosovo would not exercise formal sovereignty and would not be allowed to move toward independence. Although the agreement did not actually include anything not already established in UNSCR 1244, the Serbs hailed it as an advance in their cause to prevent permanently Kosovo's independence. The agreement, which was reached without consulting Albanian representatives, incensed the politicians of the main Albanian parties, who see any involvement by Belgrade in the affairs of Kosovo as a step backward.

In the end, 63 percent of the population of registered voters turned out to vote, including 46 percent of the Serb population. This was down substantially from the 78 percent turnout in the municipal elections in October 2000, though experts point out that many more voters were registered for the recent elections and so the absolute number of voters was far higher. For one thing, the Serbs boycotted the past municipal elections and were not counted at all among the registered voters. In the recent elections, Serbs voted in unexpected numbers in spite of reports of intimidation and obstruction, especially in the northern Kosovo town of Mitrovica, by those Serbs still insisting on the boycott. Apparently, there was a surge in voting by Serbs late in the day, after dark, so that voters could preserve their anonymity. In any event, the Serb turnout was sufficient to win 22 seats, including the 10 set aside for them. Had they voted in force, they could have secured more than 25 seats. But even with 22 seats, they are in position to be a strong force in the assembly.

Of the three main Albanian parties, DLK is the oldest and has the greatest support. It derives its popularity from its leadership role in the campaign of nonviolent resistance to Serb rule throughout the 1990s. It established and administered the parallel institutional system of schools and hospitals on which this resistance was based. Although uncompromising in its support for independence, it has also generally evinced a greater willingness to cooperate with both Belgrade and the international community. Its nearly 47 percent showing in recent elections is considered a bit of a disappointment, following its 58 percent showing in the October 2000 municipal elections. However, it is still the dominant player in the new assembly, and Rugova will almost surely be elected president. The second place DPK, led by Hashim Thaci, who represented the Kosovo Liberation Army (KLA) at the Rambouillet negotiations in 1999, was formed in September 1999 and is considered the political successor to the KLA. However, it has tried to reinvent itself in these elections as a moderate and responsible force, selecting as its presidential candidate Flora Brovina, a human-rights activist and former political prisoner in Serbia. The DPK narrowed the gap with the DLK in these elections, increasing its share of the Albanian vote since the municipal elections. The third major Albanian party, the AFK, was founded in May 2000 under the leadership of Ramush Haradinaj, who was also a prominent KLA commander. Like the DPK, however, the AFK ran in the recent elections on a centrist, pragmatic line with the slogan "Neither left, nor right, but straight."

There are many possible coalition configurations among the four major parliamentary formations, though the initial negotiations in early December seem to have been between DLK and AFK. The Serbian Return Coalition has ruled out in advance the possibility of a coalition with either DPK or AFK, though it held out the possibility of cooperating with the more moderate DLK. Furthermore, the Serbs oppose any cabinet posts for either Thaci or Haradinaj on the grounds that they perpetrated unspecified "terrorist acts" during the 1999 conflict. The first session of the newly elected assembly was held on December 10.

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