Volume 11 Number 3

Summer 2002

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

Yugoslavia - The political scene in Belgrade fractured even further in recent months, with a full-blown political war between Serbian prime minister Zoran Djindjic and federal president Vojislav Kostunica. The two have been at odds for some time since coming to power as members of the Democratic Opposition of Serbia (DOS); in recent months, however, the squabbling has increased, now threatening the coalition's very existence and raising the possibility of early elections, something Djindjic wants to avoid, fearing that his party and its allies would be unable to obtain a majority. (Although Kostunica's Democratic Party of Serbia [DePS] was originally part of the coalition, it has since withdrawn its members from the government and often votes with the opposition in parliament.)

On May 24, the battle intensified when DOS announced it would replace 50 deputies from the DOS list, claiming absenteeism by those deputies had blocked parliament's work. Although the deputies identified for ouster were from several parties, DePS lost 21 mandates altogether-the largest single loss for one party. With this, Djindjic could both do away with Kostunica's rebellious deputies and also bolster his majority. Djindjic claimed that since the DePS members were elected from the coalition's list, the coalition-not DePS-would be able to replace those deputies from any of its many parties, not just DePS. However, the expulsion and replacement of these deputies would seem to violate Art. 88 of the electoral law, which gives the reasons why a mandate may be revoked and does not list irregular attendance.

DePS immediately vowed to bring the matter to the federal Constitutional Court. Although the issue presumably would be within the purview of the Serbian Constitutional Court, since it has to do with deputies in the republican parliament, the party seemed to prefer the federal Court, thinking it would be more likely to rule in its favor, given the leanings of some federal justices. In addition, the Serbian Constitutional Court, which had been inoperative for more than a year due to a lack of judges, was unable to act on the matter at that time. Some days later, on June 21, the Serbian parliament finally appointed the six missing members of the Court. Before this, of course, court appointments had been held up in parliament, with deputies unable to agree on candidates. Without DePS in parliament, Djindjic and his allies were able to get their candidates through, presumably stocking the Court with members to their liking.

DePS's inclinations were correct, and, on July 26, the Court announced that the move had been unconstitutional, prompting criticism of the Court from both DOS and the Serbian Court, which stated that only it had jurisdiction in the matter, adding that it would rule on the case in the early fall. Djindjic and DOS stormed ahead with efforts to oust Kostunica from the political scene, voting, on that same day, to expel DePS from the DOS coalition. This paved the way for a decision, on July 29, to strip all DePS deputies of their mandates. The decision was made by a parliamentary administrative committee, formed just days earlier, and, according to critics, stacked with Djindjic loyalists; the committee stated that because the deputies were no longer members of the coalition under whose aegis they were elected, they could no longer hold their seats. This is not the first time the federal Court has issued a controversial ruling that has been ignored by Djindjic's government. On June 28, during the Milosevic extradition drama, the federal Court suspended all extradition proceedings pending its decision concerning the decree the government had issued to facilitate the extradition. The government simply ignored the Court and sent Milosevic to The Hague. (See Yugoslavia Update, EECR, Vol. 10, Nos. 2/3, Spring/Summer 2001.) In
this recent case, however, Djindjic was abiding by the Court decision, in some sense. Since the Court ruled the first removal of mandates unconstitutional, Djindjic resorted to a different method for stripping them of their mandates, although going even further, this time, totally ousting the party from parliament.

Djindjic's strong-arm tactics, however, have created some fissures in the DOS bloc, with some parties expressing opposition, along with increasing calls for early elections. Elections are currently slated for December 2004, although most agree the current majority will not last until then. At this point, it is unclear what would happen in an upcoming ballot. Recent polls have had varied results, some showing Djindjic's DP with slightly more support than Kostunica's DePS; others give DePS the edge. In any case, both parties have somewhere around 20 percent. All DOS parties together command 48 percent. G17 Plus, an independent think tank, which enjoys much respect from the public and with which many prominent government officials are affiliated, including many from DP, also could be a force in the elections. Although the organization has not said it would run affiliated candidates in the race, it enjoys a 10 percent level of support when included in opinion polls. For now, it is uncertain if the organization would support Djindjic in a ballot or run its own candidates.

Although the results of a prospective election are unclear at the moment, one point seems certain enough-the public is tiring of the constant political battle, and both DP and DePS have seen their popularity wane. In a poll conducted in late July, 71 percent of those questioned stated that the political war was merely an attempt to distract the public's attention from the real problems facing the country; 60 percent of the population claim they are living in poverty. In addition, a mere 14 percent stated that the government was doing a good job, while 60 percent asserted that no political party could help the country out of its current crisis. According to recent statistics, the average monthly salary is 150 euros, and unemployment stands at 27.9 percent.

The recent increased conflict between Djindjic and Kostunica is also a function of the run-up to the Serbian presidential election, which will be held on September 29. Although the mandate of Serbian President Milan Milutinovic expires in December 2002, DOS has called for the election early in hopes of keeping Kostunica out of the race. Kostunica is currently federal president, a post that holds little formal power and will soon be irrelevant, given the reorganization of the federal state (see below). DOS had hoped that by holding the election early, Kostunica would be unable to run since he will be in the post of federal president until Serbia and Montenegro iron out the specifics of their new federal arrangement, a process that has been dragging on with no immediate end in sight. Kostunica, however, claims that he can run for Serbian president and would merely serve as president-elect until his federal position ceases to exist, at which point he would assume his republican role. A recent poll shows Djindjic ally Deputy Prime Minister Miroljub Labus and Kostunica are neck and neck with 22 percent each. The upcoming ballot has also brought out some of the weaknesses in DOS-several parties from the coalition have stated that they will run their own candidates in the presidential race, while others have been slow to back Labus.

With regard to another issue that has long dominated the political landscape, on April 11-after a long dispute within the DOS coalition-the federal parliament adopted the Law on Cooperation with The Hague Tribunal. Although the law enabled the swift extradition of Yugoslav citizens charged with war crimes, it still received considerable criticism from the international community, specifically Art. 39, which allows for the extradition only of those indicted prior to the law's enactment. The law also generated angry criticism from the Serbian public, especially among the members of the previous regime. Vlajko Stojiljkovic, former minister of interior in the Serbian government who was charged with war crimes in Kosovo, killed himself on the steps of the federal parliament the day the law went into effect. On April 17, the federal government announced that it would name 23 indicted citizens who should turn themselves over to The Hague, stating that it would only extradite those who refused to do so within a three-day period. The government also declined to deal with Milutinovic, current Serbian president, who was named in the Kosovo indictment, stating any action should take place only after his mandate has expired. By April 23, only six people had voluntarily left for The Hague: Dragoljub Ojdanic, Milan Martic, Mile Mrksic, Vladimir Kovacevic, Momcilo Gruban, and Nikola Sainovic. On May 7, the federal Ministry of Justice gave the Belgrade district court a list of 18 war-crimes indictees for whom extradition procedures should be initiated. To date, however, no indictee has been extradited; only those who have turned themselves over voluntarily are in The Hague.

In addition to criticizing the law's failure to address future indictments, the international community and Carla del Ponte, the Tribunal's chief prosecutor, continued to press the government for greater cooperation. The Hague specifically asked the government to yield to its demands for blanket access to confidential documents for use in the Milosevic prosecution, and to extradite Radovan Karadzic and Ratko Mladic. The government has refused to grant full access, insisting instead that it will view requests on a case-by-case basis. On May 24, the federal Ministry of Interior announced that it had agreed to 14 of 18 requests for documents. There have also been allegations that Kostunica has blocked access to some federal army materials. In addition, many documents have been destroyed. Although remaining critical of what it viewed as the federal government's intransigence, on May 21, the US government freed up $40 million in aid, which had been frozen since March 31, pending the adoption of a cooperation law.

In other Tribunal matters, on July 26, the trial of Slobodan Milosevic was adjourned for a month-long summer recess. The prosecution's trial strategy-which began by focusing on the 1999 Kosovo conflict and is scheduled to shift in mid-September to the 1991-95 wars in Bosnia and Croatia, before resting its case on May 16, 2003-has sparked criticism. Its aim in the Kosovo part of the case was to establish Milosevic's "command responsibility" for crimes committed by forces under his control. Although there has been more than sufficient evidence that atrocities were committed, Milosevic's direct responsibility has yet to be clearly shown, and prosecutors have failed to discover a "smoking gun."

So far, the prosecution has put three types of witnesses on the stand: people who actually saw the crimes, Albanian politicians, and so-called insiders. The first group consisted of Albanians who helped establish that war crimes had taken place. The second group basically made the same point. The key insider witness from the Milosevic police structure was Ratomir Tanic, a turncoat in the state-security service and a member of New Democracy, a party that formed a coalition with Milosevic's Socialist Party of Serbia (SPS) from 1994-98. He began to testify on May 14, but, after a couple of gaffes, the credibility of this protected witness was disputed even by Judge Richard May himself. In August, Rade Markovic, a former head of the Serbian state-security service testified but failed to provide the direct link between Milosevic and the atrocities for which the prosecutors had been hoping. "I never got any order, nor did I hear about any order or plan, to expel Albanians [from Kosovo]," he told the court. Perhaps the most convincing testimony so far has been given by German NATO general Klaus Nauman, who, on June 13, stated that Milosevic told him in October 1998 that he "intends to round up lots of Albanians and execute them" in order to reduce the number of Albanians in Kosovo.

The trial, which has taken a toll on the health of the 60-year-old Milosevic, who suffers from a heart condition, has been adjourned three times for related reasons. Milosevic spends hours preparing for the trial, which runs five days a week, and in which he represents himself, having refused a lawyer. In spite of his participation, he continues to deny the legitimacy of the Tribunal. His cross-examination of over 100 witnesses has often proven devastating, and he misses few opportunities to grandstand. Milosevic faces 66 criminal counts, any of which can carry life imprisonment.

Meanwhile, Milosevic continues to play a role in the domestic scene although SPS has started to show some cracks. In early spring, Branislav Ivkovic and a group of dissatisfied SPS members came out in favor of electing a new president and sending Milosevic into political retirement. In early June, more than one-third of the local SPS branches called for an early party congress, presumably to oust Milosevic. The SPS leadership rebuked the rebellious members, but the congress nevertheless took place on June 23, and the rebellious wing elected Ivkovic as its own president, keeping Milosevic as its "honored president."

Nonetheless, Milosevic remains the president of the entire party, which wanted to name him as its candidate for the upcoming presidential elections. In early August, however, Serbia's election commission ruled that Milosevic is constitutionally barred from running since he has already served as Serbian president for two terms, from 1990 to 1997, before becoming federal president. The party vowed to challenge the ruling and began gathering the signatures needed for nomination. On August 13, however, SPS announced it had received a message from Milosevic naming Vojislav Seselj, leader of the ultranationalist Serbian Radical Party, as the two parties' joint candidate. Some observers have stated that Seselj's possible candidacy could help Labus in the race since it would draw nationalist voters away from Kostunica, for whom they would probably vote if Seselj was not a candidate.

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In a chain of events related to police and military structures that began with the killing of Momir Gavrilovic last summer, two more episodes shook Serbian politics this spring. The first was the so-called Perisic affair. Momcilo Perisic, vice president of the Serbian government, was detained by military police on March 14, who announced that he would be charged with spying for the American secret service. Since then, however, Perisic has not been indicted. Djindjic initially protected Perisic and demanded that the chief of the military secret service step down. Kostunica, who legally controls the Yugoslav military, protected the military secret service and demanded, instead, that Perisic resign, which he did on March 19. To date, the facts of the case have not been made public, and no one really knows the actual story behind the spying scandal.

Kostunica has continued to use the military for his political purposes and to purge the army of generals disobedient to him. On June 7, Kostunica, pushed by his team of advisers, allegedly asked General Pavkovic, a Milosevic crony, on to break into the information section of the Serbian government. When Pavkovic refused to do so, Kostunica demanded his resignation. Pavkovic again refused, so, on June 25, Kostunica passed a decree sending Pavkovic into retirement. Initially, it seemed that Pavkovic would try to fight his retirement, but eventually he gave in. The facts of the affair came to light after Pavkovic went public, spending much time on television discussing the events. The Serbian parliament announced the formation of a committee to investigate the matter.

On June 10, the former chief of the Belgrade police forces, Bosko Buha, was gunned down in Belgrade. The police are still investigating; there are no leads to date. Buha played an important role in Milosevic's downfall when his unit (at the time, he was a military officer) refused to fire on striking miners, in October 2000. This was at the time that protests were engulfing Serbia, leading eventually to Milosevic's downfall on October 5. After that, Buha was named head of the Belgrade police. However, a later appointment as deputy chief of public security was looked on as a sign that his career had foundered amid rumors of ties to the underworld. Observers claim that the authorities' willingness to tackle the case aggressively will demonstrate how serious they are about taking on the so-called mafia. As the Institute for War and Peace Reporting put it, the "murder will force the authorities to define their attitude toward the criminals whose grip was all-powerful during the Milosevic era. The government must take serious action or admit that the Mafia controls Serbia."

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On March 14, representatives from Serbia, Montenegro, the federal state, and the EU signed a document that marked the demise of the Yugoslav federal structure. In the aftermath of this agreement, the various political forces have had a good deal of trouble reaching a consensus on the details of the new state's structure. (For more on the agreement, see Yugoslavia Update, EECR, Vol. 11, Nos. 1/2, Winter/Spring 2002.) After the parliaments of both republics ratified the document, on April 9, a constitutional subcommittee was given the task of harmonizing the various proposals and producing a single document-a Constitutional Charter-that would then be submitted for final approval.

Work on the Constitutional Charter has stalled, however. There have been as many as five distinct proposals-from the DOS coalition in Serbia, Kostunica's Democratic Party of Serbia (DePS), the Montenegrin and Serbian governments, the Together for Yugoslavia coalition in Montenegro, and the Council of Europe's Venice Commission. The initial agreement left most of the details of the new state vague, and subsequent proposals addressed such issues as customs, currency, the army, and the rules governing the various institutions such as a legislature, government, a common court, and the presidency. By August 26, two deadlines set by the international community had already been missed. Some were hopeful that a consensus might be achieved after Montenegrin president Milo Djukanovic and Djindjic had come up with a joint text endorsed by their respective governments. The text hewed more closely to Djukanovic's vision of a loose federal state. While the terms of this statement may not have corresponded entirely to Djindjic's own wishes, he went along with it, in some measure, because he needed the agreement with Montenegro as part of his effort to oppose Kostunica, who favors a stronger federal state. He knew he could argue over the details later on. But the rapprochement between Djindjic and Djukanovic seemed to fall apart when forces within DOS came out against the text, and finally Djindjic backed away from the agreement.

It was during this period that the EU's foreign policy chief, Javier Solana, traveled to Belgrade (in early September) to try to broker a deal between the various sides. Yet, with the passing of another deadline set by the international community, Solana left empty-handed and with a Basic Law to govern the new joint state still lacking. Although Solana was apparently able to bridge many of the gaps among the various proposals, a major sticking point remained, namely, the manner of electing federal deputies. Djukanovic's Democratic Party of Socialists and the Montenegrin government insisted that these deputies be elected by the republics' parliaments, or, at least, that each republic should have a choice in this matter. Those pushing for a stronger federal state, however, argued that deputies should be popularly elected.

These alternative approaches to the selection of federal deputies strike at the heart of the conflicting visions of the new state. Direct popular elections would imply a single state with a homogeneous citizenry; on the other hand, if the parliaments elect the deputies, then the new federal parliament is essentially derived from the institutions of each member state. As the head of the Montenegrin delegation, Dragan Kujovic, put it, "the state union is not a union of citizens, but a union of member states. Direct elections would mean the union had become a unitary state."

With this major point still unresolved, it remains unclear when a constitution will be drafted. The international community is now threatening that failure to come up with an agreed-upon text could block the soon-to-be-renamed Yugoslavia's entry into the Council of Europe (to be considered on September 23). Solana stated: "It's dramatic and a pity that for one article, they are not going to finalize the agreement. I think it is very sad. . . ." Observers comment that nothing will be achieved until the current overheated political season passes-the upcoming parliamentary elections in Montenegro and the presidential election in Serbia loom large.

The agreement to revise Yugoslavia's federal arrangement has had a substantial impact on the domestic scene in Podgorica, leading the government to call new elections, now scheduled for October. The problems began after the government-led by Djukanovic's DPS-threw its support behind the EU-brokered deal, backing down from earlier promises of independence. In response, on April 2, the radically proindependence Liberal Alliance (LA), on whose small number of votes the ruling coalition depended for its majority, withdrew its support for the government only days before the Serbian and Montenegrin parliaments approved the deal. The Social Democratic Party (SDP), also part of the coalition, voted against the deal, and it, too, resigned from the government, withdrawing its three ministers. At this point, LA demanded that Prime Minister Filip Vujanovic resign, which he did on April 19, after failing to put together a new government. On July 3, parliament called for new elections.

In parliament, the forces hostile to Djukanovic-LA and the Together for Yugoslavia coalition-formed an unusual partnership, in mid-July, in order to push through the legislature a package of amendments to the media and electoral laws intended to serve as the basis for the upcoming elections. The amendments applied to the Law on Election of Councillors and Representatives, the Law on Media Presentation of the Electoral Campaign, and the Law on Public Information. The parties claimed the measures would allow for fairer elections and break the state's unfair monopoly on the media. The government parties-backed by the OSCE and the Council of Europe-criticized the amendments. Although many of the legal revisions were minor and of a technical nature, others were rather more significant-and controversial. Among the disputed changes was a measure altering the procedure by which parliament replaces editors-in-chief of the state media, and another that reduced from five to four the number of parliamentary seats guaranteed to the Albanian minority-something of a setback for DPS, since the Albanian parties are its allies in parliament.

Other alterations to the laws just cited will have considerable impact on the electoral process. Article 24 of the election law was amended, giving parliament the authority to appoint a Municipal Election Commission after a municipal assembly has been dissolved. The OSCE observed that this change does not clearly define those cases where a new commission may be created, adding that this should occur only if an existing commission has failed to perform certain specific acts. As the OSCE pointed out, the amendment gave the central powers too much authority over local government. Article 18 of the election law was further amended, providing parliament with the authority to create a new Central Election Commission and a new commission for Podgorica. The OSCE commented that such changes should not have been made just months before elections, thus politicizing these supposedly independent bodies. Still other changes were made to voting procedures. For example, certain amendments provided for repeated voting if polling stations could not provide complete secrecy. The OSCE noted that the amendment does not clearly define what constitutes "full secrecy," adding that the current vague wording could allow for possible manipulation.

Parliament also deleted Arts. 50-64 of the media law and adopted a new law to govern the media during electoral campaigns. Articles 2, 3, and 4 of this new law all attempt to circumscribe the government's airtime during a electoral campaign, with specific requirements that the state media must limit their coverage of the government's "political activities" and may not cover certain events, such as cultural events, the openings of public-works projects, and so on. Article 13 of the new law also creates a Commission for Public Media Supervision, with members appointed by parliament, to monitor the activities of state media during the electoral campaign. Articles 16 and 17 also provide for penalties for media or political parties that violate the law; there is no right to appeal.

Observers pointed out that these changes placed considerable limitations on free speech. The OSCE recommended that the legislation be repealed, since it violated domestic law as well as international standards. The OSCE stated "the changes to remedy media bias are flawed. The penalty provisions undermine due-process considerations. Some provisions introduced in the amended legislation may inevitably stifle the campaign environment by micromanaging every minute detail of media conduct. Moreover, the new provisions attempt to regulate the activities of private media in the same breath as the state media. The distinction between state and private media is blurred."

Parliament nonetheless adopted the changes on July 18. The president, however, refused to sign the new legislation and sent it back to parliament, which promptly readopted the legislation on July 29. Days later, with no alternative, the president promulgated the laws. At this point, the opposition claimed that the fall elections should be held on the basis of the new laws. DPS, however, stated that this was not possible, since the laws were adopted after the elections were called. The OSCE also asserted that the previous laws must govern the upcoming ballot. The controversy was made even more complicated by the fact that Montenegro currently does not have a Constitutional Court, which could rule on such matters as well as oversee the legality of the elections (the Court is the final recourse for any elections disputes). Since late July, when the mandates of most of the justices expired, the Court has remained inactive because parliament will not approve any of the president's candidates.

On August 14, representatives from all parties, the OSCE, and the Council of Europe met to discuss the recent legislative changes. After weeks of bickering, posturing, and mudslinging, it seems that the parties had reached an agreement. Although the deal has not been made final, most of the contentious points were dropped. Areas of agreement include the understanding that all parliamentary parties will enjoy proportional representation in the central and district electoral committees, that the number of seats for the ethnic Albanian minority will be reduced to four, and that all parties must reach a consensus on the Constitutional Court nominees. Many of the other controversial points were dropped as well. And, finally, elections have been postponed from a date early in October to October 20.

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