Constitution Crisis

Given that this ruling directly contradicts the one reached by the Federal Court of Montenegro some fifteen days ago, a replay of the constitutional political crisis in the Yugoslav federation, which signaled the beginning of the end of SFRY seven years ago, can be expected once again. At that time, the Federal Court of Yugoslavia argued over the Slovenian decision to "divorce itself" from SFRY, ruling that that decision was unconstitutional, while Slovenia separated in an orderly fashion. Let us remember that the Republican Elections Committee of Montenegro first accepted Milo Djukanovic for the DPS candidate. After that, the DPS wing loyal to the present president Momir Bulatovic, nominated Bulatovic, and RIK accepted that nomination despite the clear statement in the Republican Presidential Law that one party has the right to nominate only one candidate. The Democratic Party of Socialists, represented by Milica Pejanovic-Djurisic, filed a complaint with the Constitutional Court of Montenegro, which ruled unanimously on August 14 that the DPS option for nominating a presidential candidate has been exhausted with Milo Djukanovic’s nomination. Contrary to RIK, which has practically stipulated two different political parties with their acceptance of Bulatovic’s candidacy ("it is apparent that what we are facing are two parties which are clashing over the hereditary rights and legitimacy of the DPS political program"), the Republican Constitutional Court has adopted the view that the factions into which DPS has split still do not represent two different parties, because the Ministry of Justice of Montenegro still has only one officially registered DPS. However, Momir Bulatovic did not drag his feet but got right down to the business of filing a complaint with the Federal Constitutional Court of Yugoslavia, claiming that his civil and human rights to a fair chance at being elected, guaranteed by the Federal Constitution, have been grossly tampered with. He requested that the Federal Constitutional Court overrule the decision by the Constitutional Court of Montenegro. With a 5:2 majority, the Federal Court ruled in favor of Bulatovic, but in a legally peculiar ruling.

The Federal Court’s arguments did not directly consider the complaint filed by citizen Bulatovic, but rather the constitutionality of the clause in Montenegrin Law according to which a party has a right to nominate only one presidential nominee (even though the same clause exists in the Federal and Republican Laws of Serbia regarding presidential nominees). The Federal Constitutional Court has the right to assess the constitutionality of all laws in Yugoslavia, but in the opinion of the majority of lawyers we spoke to, that would require special measures, which is something Bulatovic never requested. He merely requested the revocation of the decision by the Constitutional Court of Montenegro according to which he cannot be a presidential candidate for DPS. However, in this way the Federal Constitutional Court of Yugoslavia in large part managed to circumvent the argument — which is being herd recently in legal circles that they have no authority to consider Bulatovic’s complaint, because the Federal Court can only consider damages to civil and human rights in cases where no prior legal protection had been secured. In this case, that protection had been secured by no less than the responsible Constitutional Court of Montenegro. And, which is perhaps more important, in this way publicly stated arguments that all the republics are sovereign in their organization of government on their territories are being refuted, and that because of this the Federal Constitutional Court has no right to take up the question of Bulatovic’s candidacy.

Nevertheless, let us get back to the court hearing which this time was followed by an unusually high number of journalists. The presiding Federal Court Judge, Dr. Milutin Srdic, argued in the following manner for the need to assess the constitutionality of the Montenegrin law on presidential elections:

First of all, the Federal Constitution asserts that FRY is a sovereign state, that it is made up of member republics which are also states in themselves, and which are sovereign regarding questions not considered under federal jurisdiction by the Federal Constitution. It also asserts that in the FRY member republics power is in the hands of the citizens who exercise it directly through freely elected representatives. The principle of the rule of law and of government authority is stated therein, and the relation of that authority to the international community is defined. "It is beyond argument that cited clauses of the FRY Constitution contain in themselves certain exigencies which the Constitution of the federation as a complex state places before the member republics and which they must respect in their formation and organization. Therefore, what we are considering are clauses which back up the constitutional-legal system of the federal units, and which, when needed, define their makeup, their international legal status and their position in the federal state. Thus, with the decree that they are republics, the specificity of the forms of power in the federation as a complex state is secured; with the decree that the citizen politically carries state sovereign power, the political regimes of the federal sate and member republics are defined as democratic regimes; with the indication that citizens realize that power directly and through freely elected representatives, the manner of implementing the will of citizens is expressed — that is to say, the manner in which state organizations relate to the people is expressed.

Therefore, it is possible to conclude through the issuing of theses principles for the organization of not only the federation, but also its federal units, the obligatory degree of their specific status is secured. Therefore, it can be said that the republican lawmaker and law enforcer is limited above all by the principles of the cited fundamental decrees of the Federal Constitution. That is to say, that he is limited in the most general way by its entire content, which represents the limits of the free institution of government organization in a republic". Therefore, the argument of a unified Yugoslavia is invoked, which politicians will certainly exploit to its fullest potential.

Judge Srdic also stated that "because of all these reasons I consider that there is basis for posing the question whether the cited decree, which prohibits that one party nominate more than one candidate for the President of the Republic, conforms to the clauses of the Constitution of FRY which assert the equality of citizens regardless of their political convictions, given that the nomination of a candidate by one political party automatically excludes the possibility of the nomination of another candidate by the same party, regardless of personal attributes and the wishes of members and offices of that party in nominating a given individual as candidate of that party. Also, there is basis for posing the question whether such a legal norm does not allow citizens (whose interests should be represented by a specific government institution) to realize their active voting rights, guaranteed by the Constitution of FRY, in choosing several candidates whose political convictions might be the same, but who differ in their other personal attributes." Keeping all that in mind, Judge Srdic suggested that the Federal Constitutional Court begin assessment of the constitutionality of the cited clause of the Law of the President of the Republic, and that the execution of the decision of the Republican Elections Committee with which the candidacy of Momir Bulatovic for President of Montenegro, "submitted by DPS of Montenegro which is represented by Momir Bulatovic", be forthwith halted. The stated suggestion was voted on at the end of the session by the President of the Federal Constitutional Court, Milomir Jakovljevic, Judges Caslav Ignjatovic, Dusan Ruzic and Dr. Milutin Srdic (all from Serbia) and Milan Vasic (Montenegro). Those who voted against were Dr. Slobodan Blagojevic and Nikola Vujanovic from Montenegro.

Directly following the statement by the presiding judge, Dr. Slobodan Blagojevic stated that in his 19 years of legal experience as judge he never came across such "an unusual argument summary" as the one offered by the presiding judge in which no resolution of the constitutional motion by the plaintiff is made — which would be in keeping with Constitutional Court law — but a new motion is suggested. That is why Blagojevic thinks that the presiding judge did not fulfill his duty of assessing whether conditions exist for taking up the constitutional motion, and if they do exist, whether the rights of the plaintiff have been injured. On top of that, Bulatovic has no legal basis for filing a constitutional suit. In order to have that basis, clauses which he is questioning must, by their content, relate to his passive voting rights, which he considers to have been denied. However, Judge Blagojevic stated, a simple reading will indicate that neither one nor the other clause which Bulatovic questions relate to passive voting rights, but rather to the rights of a political party to nominate a candidate. Finally, Bulatovic has not attained the status of a candidate, and without that he is not at all in the position of realizing passive voting rights. Blagojevic noted that recently the Federal Constitutional Court threw out a constitutional complaint filed by "a journalist" because the Mandate-Immunity Committee did not certify his candidacy. Even if Bulatovic were a confirmed candidate, he would have to seek protection of passive voting rights with the Constitutional Court of Montenegro. Suggesting "as a judge, a professor, and a citizen" that the Federal Constitutional Court of Yugoslavia throw out Bulatovic’s complaint because there is no legal basis for argument. Blagojevic finally concluded that the interpretational premise according to which the federation can regulate, realize and protect republican systems of government — contrary to the rights of the member state which is sovereign in questions of government organization — is "dangerous, very dangerous for both the Constitution and the Federation". "If the Federal Constitutional Court were to begin arguing such questions, it would mean that the Federal Constitution and Federal Laws would be stretched to include the republics. If the Federal Constitutional Court were to do that, a constitutional crisis could be initiated because of patent tampering with the rights of a member republic to self-organization".

Judge Nikola Vujanovic offered similar arguments, stating that the jurisdiction of the Federal Constitutional Court is in this case limited both by the Federal Constitution and the Constitution of Montenegro; that the Republic of Montenegro did not transfer its right to government decisions and organization to the federal state; that the Federal Constitutional Court is not secondary to the Republican Constitutional Court, and were it to assume that position it would be in breach of both the federal and the republican constitutions; that the Federal Constitutional Court is not the political body which is supposed to decide how many candidates a party should have; and finally, that the Federal Constitutional Court did not accept a single one of the 400 to 500 constitutional complaints which were filed in its history precisely because of absence of legal basis.

The remaining judges, especially those from Serbia, spoke very briefly, seconding the suggestion of the presiding judge. The motion to vote was accepted, and it was decided that a public discussion of this question be held ten days hence.

For a prognosis of future developments it is significant to keep in mind that the Constitutional Court of Montenegro, as soon as Bulatovic’s complaint was made public, issued a statement that the Federal Constitutional Court has no right to overturn decisions by courts of members of the federation, and therefore the decision regarding the cancellation of Bulatovic’s presidential candidacy. "The Federal Constitutional Court’s meddling in the jurisdiction of the Republican Constitutional Court would represent a drastic example of violation of the constitutional and legal systems of FRY and Montenegro", the statement read. However, it turns out that the Federal Constitutional Court of FRY precisely wants to and can do that. To the question if that which happened were to happen, what would they do, the President of the Constitutional Court of Montenegro, Blagota Mitric, stated "We will not do anything. We expressed our position in our statement". And then? Let us suppose, there being good reasons for doing so, that Montenegro were to ignore the decision of the Federal Constitutional Court. According to the Constitution of FRY, the Federal Government is authorized to implement decisions made by the Federal Constitutional Court. To date, no government in the present nor in the former Yugoslavia ever decided to take such a step. Were it to decide to take that step, it would have to use the argument of force — most probably the army (although at no moment should we ignore the fact that the army consists of Serbians and Montenegrins, and that developments in conflicts in the former Yugoslavia demonstrated that political conflicts, with few exceptions, automatically lead to national divisions in the army). Let us assume that not even such a danger could cause Bulatovic, as a Montenegrin patriot, to withdraw his nomination or to submit his nomination according to regulations. Here we come to the possibility which Vojislav Seselj, President of the Serbian Radical Party and candidate for President of Serbia, already predicted — martial law in Montenegro. A constitutional and legal basis for such possibilities exist. Implementation of martial law is decided by the Federal Parliament of FRY at the request of the Federal Government as long as both houses of parliament decide that there is danger to the security of FRY or a part of it. For such a decision a majority of MP’s would have to vote in both houses of parliament. Resistance to such an idea should not be expected in the Citizen’s House as Serbians comprise a majority. It is not certain that things would be that easy in the House of the Republics, which consist of 20 MP’s from each republic, even though it is possible to foresee that in a deciding moment, not all Montenegrin MP’s would back the decision of their Constitutional Court (just as not all Montenegrin judges backed the decision in the Federal Constitutional Court of Yugoslavia) — while only one MP would be needed to accept military intervention on his soil. Even if the decision were not to pass through the House of the Republic, martial law could still be implemented for the period of one year, merely on the basis of the decision by the Citizen’s House.

It is a fact that in an interview for Radio B92, Milo Djukanovic ruled out the possibility of military intervention in Montenegro by the Yugoslav Army, stating that "no one wants to repeat unsuccessful experiments with interventions in part of the former Yugoslavia which ended very badly, I would even say tragically", which still does not mean that Djukanovic is entirely right. The same hand and the same head which at that time "experimented with interventions" is now due to decide once again. It would seem that for a rational political mind the risks of using force are not sufficient reason for preventing the unruly Djukanovic from taking over from the sycophant Bulatovic. However, we are not talking here about a rational mind, nor one that learns from previous mistakes. It might seem that complaints to constitutional courts and military interventions are miles apart, but not even that is a certainty. For instance, those who followed the parliamentary proceedings of the former SFRY Federal Parliament soon before the dissolution will remember that the Constitution, which up to that time was not even looked for over twenty years or as long as everyone knew where things were REALLY decided, suddenly became a bestseller. While behind the scenes military operations which were to resolve the crisis were being forged, the highest legal body in the state was abuzz with constitutional clauses which indicated who had what authorities, what exactly were the powers of parliament, of SIV and of the President. The Constitution was cited left and right — just as now, warring sides are invoking decisions of the constitutional courts. (The Constitutional Court will also be busy in Serbia as the Democratic Party and the Serbian Citizens’ Union have filed a request for a reassessment of the constitutionality of the republican Law of Elections Districts.) The extent to which the addressing of constitutional courts can have little to do with the brandishing of weapons is also evidenced by the history of the decision of the Constitutional Court of Republika Srpska which declared Biljana Plavsic's dissolution of the Parliament of RS unconstitutional. Judges were threatened with guns (which still has not happened here), sides lobbied ahead of time for a decision, which if it was not to their liking they downplayed (Srdja Bozovic, Vice-President of Bulatovic’s DPS stated that he would not be surprised if the Constitutional Court of Montenegro and the DPS faction loyal to Milo Djukanovic were to refuse to accept a decision from the Federal Constitutional Court favorable to Bulatovic, adding that that would be only one more incontestable piece of evidence pointing to their declarative support of FRY, where in actual fact institutions of FRY get very little respect from them). The disagreement over authority also occurred in Republika Srpska, where Biljana Plavsic would like to appeal to the Constitutional Court of Bosnia and Herzegovina against the decision of the Constitutional Court of Republika Srpska. The President of the Constitutional Court of Bosnia and Herzegovina, a Croat, claims that this does not fall within the jurisdiction of his court. The Vice-President of the Constitutional Court of Bosnia and Herzegovina, a Muslim, claims that this does fall within the jurisdiction of his court. In the meantime, the army — more correctly, several armies — is alert and ready.