A Dangerous Constitutional Trick

When king Aleksandar Obrenovic in a single night in March 1903 suspended the constitution for one hour only, and did what he wanted to in that time and then reinforcing the old constitution, an alcoholic, returning from the bar and seeing both proclamations next to each other on abolishing and then reinforcing the constitution, concluded: "I've had too much to drink, I must stop!" In the same instance, a Belgian diplomat first sent a dispatch that the constitution has been suspended, followed by another that it has been reestablished and was back in force. The Belgian minister of foreign affairs, seeing how serious matters were, tried to find out whether the ambassador's health was endangered using roundabout channels. For Kosta Cavoski, professor of the School of Law, the events in parliament on June 6, 2000 remind him of this episode.

The building of the Yugoslav parliament, empty and lifeless in the largest part of the year, suddenly came to life on Thursday around 11 am, so that, by the time evening fell, complete with fun ruses of the "watch how the radicals are carefully lifting their hands " type, and accompanied by some hugs between fat female officials ("ooooh..."), the express procedure of a change of the federal constitution was complete. That day, two sessions each were held in both the Council of Citizens and the Council of Republics along with a joint session of both councils, where it was declared that the amendments on the FRY constitution and the constitutional law for their implementation were adopted. In that quickest possible, practically conspiratorial procedure (the members were informed the day before, however they didn't have the text of the constitutional changes on which they were to vote, only the text and initiatives of a group of MPs), the constitutional arrangement was changed so that members in the Council of Republics of the FRY parliament as well as the president of FRY could be elected by direct elections.

In this unusual constitutional change which wasn't preceded by a public discussion nor expert elaborations, Cavoski sees proof that Slobodan Milosevic as an autocrat is supporting a so-called legal nihilism, i.e. that he regards the constitution in a manner similar to the way the Pakistani dictator Zial-ul-Haq does, who used to say that the constitution was merely a book which he could tear apart at any moment...

Things didn't turn out to be that simple, the simmering constitutional crisis escalated. The dispute over changes in the constitution was being dragged out since 1997, and the dispute over the composition of the Council of Republics was practically on the agenda since the Montenegrin parliamentary elections in 1998, along with the dispute over the legitimacy of the federal government. According to our constitution, the smaller federal unit, beside the standard protection of interests in the Federal Council, also enjoys so-called positive discrimination by which it elects at least 30 delegates into the Federal Council, while, following the one man one vote principal, it would have seven. Due to the fact that the Montenegrin electoral will was ignored, that arrangement was no longer functioning. Vladimir Goati, associate of the Center for Political Research and Public Opinion of the Institute of Social Sciences, believes that it cannot be said that Montenegro is denying the legitimacy of the political union ("state framework"). Political parties who were in favor of secession amassed only around 12 percent of electoral support. From the mid 90's, a confederation option is gaining strength there however that, as Goati notices, is reactionary confederation - around 60 percent of the people support a confederation while 40 percent opt for a union with Serbia under any conditions.

The Democratic Party of Socialists (DPS), at the time when the parliament of Yugoslavia was constituted in 1997, was still formally united, and the election of FRY president fell at the moment when a clash was unfolding which occurred after a statement given by Milo Djukanovic to VREME in 1997, that Slobodan Milosevic was an obsolete politician. That June 23, 1997 Milosevic managed to be elected president since the Montenegrins, despite their personal objections, didn't want to confront the "electoral will of the citizens of Serbia". The Socialist Party of Serbia's (SPS) initiative of the time for a change of the constitution by which the president of FRY should be elected by direct elections wasn't adopted due to the resistance of the Montenegrins. With these new constitutional changes, the influence of Montenegro on electing the head of a federal state is reduced to a symbolic 6.25 percent of the electoral body. Until now, when a head of state was in question, they theoretically had 50 percent influence in the Council of Republics and around 25 percent in the Council of Citizens.

Otherwise, the uninhibited will of a parliamentary majority dominates in both the Serbian and Montenegrin parliaments, yet one decision of the Constitutional Court of Yugoslavia demands that a delegation is to be sent to the Council of Republics whose composition proportionally reflects the composition of the parliament. Last spring the majority in the Serbian parliament, calling upon that order, utilized the fact that the Serbian Renewal Movement (SPO) had left parliament and quickly passed a law by which a proportional delegation is to be sent to the Council of Citizens, however the parties not taking part in parliamentary procedures had no right to be represented. Therefore, a "proportional delegation of the regime" was sent from Serbia.

Following the Montenegrin republic elections in 1998, the parliament of Montenegro sent a new delegation of those who had won the elections to the Council of Republics, yet the majority in the Yugoslav parliament refused to verify their mandates. The former delegation, elected in 1996 split, leaving fourteen delegates who respected the decision of the republican parliament and refused to take part in any further activities of the Yugoslav parliament, yet six delegates remained. That number was sufficient to elect Momir Bulatovic as federal prime minister and to vote for the parliamentary decision which enables the government to proclaim a state of war, yet it isn't sufficient for a change in the constitution. In Yugoslav political life, there are five options to remodel the political frameworks: secession (Montenegrin liberals and social-democrats), confederation (DPS), federation (Serbian democratic opposition), a strong federation (SPS-JUL) and a unitary state (Serbian radical party). Direct elections of the deputies of the Council of Republics is being interpreted by official Montenegrin as unitary, even though there are examples where elections for the upper house in federal states are direct - owing to a certain amendment of the American constitution from 1913 in the US, for example, each state, via direct elections, chooses two senators. What is certain is that, on the basis of this new decision, the influence of republican bodies in the Yugoslav parliament are weakened, while the position of the 20 each "senators" from each republic who are practically irreplaceable is fortified. Kostunica warns that we have yet to see what changes of the electoral law are to follow in the next two months.

The sentence which was repeated on a number of occasions and which says that "conditions have been met" to adopt a new, more democratic constitutional solution obviously didn't mean that the relevant subjects had come to any kind of basic political agreement on the regulations of the game, but rather that the ruling parties have simply "performed a transfer", that they have "procured" one more delegate who was missing in the Council of Republics. That "twenty-seventh man" was Milan Gajevic, the former DPS chief in the Council of Citizens in the Yugoslav parliament who had, when DPS split in 1997, stood by Milo Djukanovic, only to subsequently accuse Milica Pejanovic-Djurisic and Svetozar Marovic that they had thrown him out of the party in violation of the constitution, that they are after his head and that they are working on the collapse of Yugoslavia... It appears as though the Montenegrins knew that Belgrade was in contact with Gajevic, and Srdjan Darmanovic, the director of CEDEM, warned immediately after the Serbian delegation for the Council of Republics was elected, that there was a possibility of a change of the constitution.

The question remains whether this play with basic law, as it has become customary in this "incomplete state", built on improvisations and dubious legitimacy from the very beginning, has anything to do with the essence of the constitution. Kosta Cavoski reminds us how FRY was proclaimed in 1992, when the so-called constitution from Zabljak was proclaimed by the Federal Council of the parliament of SFRY, elected in 1986, which didn't have a mandate - and only one third (74 delegates) voted from the overall number of delegates in the Federal Council.

After the new Montenegrin representatives weren't accepted in the Council of Republics, and especially after the election of Momir Bulatovic as federal prime minister, Montenegrin official structures cut all communication with the officials of the federal government and later adopted a number of measures by which they took over federal authorization in a number of areas, including the monetary one.

In January 1999, SPO president Vuk Draskovic enters into the federal government claiming that, on the occasion,  he had received a promise from the president of FRY that a reconstruction of the federal government was in the making, which would include the reintroduction of Djukanovic's team on the federal level. As stated in an interview in VREME on January 1999, the advisor of the Montenegrin president, Miodrag Vukovic, said that at that moment the Montenegrins were demanding that the president of the federal state be returned to constitutional authority; that the electoral will of the citizens of Montenegro and the stand of the parliament of Montenegro be respected, i.e. that a delegation of the parliament of the republic of Montenegro be accepted in federal parliament, composed of delegates who shall responsibly represent its interests as foreseen by the constitution; that that federal parliament is to elect a federal government whose president will be a man from Montenegro, full of personal and professional integrity, from Montenegro's political majority; that the federal government have half its ministers from Montenegro, half from Serbia..." Nothing came of it all. Draskovic was ousted from the federal government in May 1999 and its new reconstruction in the summer of 1999 included the Serbian radicals, who subsequently entered into an electoral coalition with Momir Bulatovic for the local elections in Podgorica and Herceg Novi in May 2000.

Since relations are becoming more complicated and tense with each passing week and month, at the beginning of July 1999 the Montenegrin ruling structure comes out with a platform for a reconstruction of relations in the federation, in reality seen as a confederal state. It is occasionally mentioned that Montenegro will organize a referendum on independence in case its initiative doesn't meet with the necessary understanding, however the referendum as yet isn't an option, as it appears, due to two reasons: it isn't certain that the majority of citizens in Montenegro would vote for independence, and it isn't certain that international factors would approve such a step. That is being confirmed these days when the Montenegrin parliament refused the Social-Democratic Party's (SDP) suggestion that the citizens of Montenegro are to give their opinion on the changes of the federal constitution at a referendum. Waiting and measuring.

The Serbian government didn't even want to consider Montenegro's platform for a redefinition of relations between Serbia and Montenegro and redirected that issue to the Yugoslav parliament, yet official Montenegro didn't want it there since it considers that parliament illegitimate. The contacts between DPS and SPS didn't give any results ("Montenegro is equal and there's nothing more to be said on that"), talks with the Yugoslav United Left (JUL) seem to have been unpleasant. The Serbian opposition welcomed Montenegro's initiative, expressed its intention to seriously talk about it, yet in its political platform in March 2000 defined that they would work on building relations with Montenegro on a federal level. All are courteously skirting around the huge differences between these two stands. These days, new talks between the Serbian opposition and the ruling coalition in Montenegro are to commence. However, immediately after the changes in the federal constitution, the Montenegrin government, followed by the Montenegrin parliament, announced that they will not recognize a single legal nor political act passed without the participation of the legitimate and legal representatives of Montenegro in the legislative, executive and judicial government, that they do not recognize the changes in FRY's constitution since it was passed by an illegal and illegitimate federal parliament, and are announcing normative and other measures necessary for the protection of the citizens and the republic of Montenegro.

Which leads us to what Milo Djukanovic himself directly stated - there's no way the Montenegrin ruling coalition will take part in the federal elections.    Kosta Cavoski, who had otherwise supported the stand that the opposition should not run at the elections under unfavorable conditions, now (Press Club, Monday July 10) says that the Serbian opposition has brought itself to a situation when there is no longer a good choice. Whatever it undertakes - won't be good. Namely, Cavoski concludes that it might come to the point where there will be a difference between the stand of the Serbian opposition and the stand of the Montenegrin government in case the Montenegrins decide to go against state frameworks. If the Serbian opposition listens to  advice not to run at the elections, international factors will proclaim the newly elected government illegitimate, as was the case with the rump presidency of 1990, when four members left that presidency and it could come to the point where the Serbian opposition, even though it might not possibly want that, could provide the Montenegrins with an excuse to secede, since a federal government no longer exists. Still, if the opposition doesn't stand at the elections, then the question arises as to why anyone should stand at those elections if they are lost at the very outset...

The question - how far away Montenegro is from a referendum following their decision on a moratorium, protection measures and refusal of SDP's proposal on an all-national stand - Veselin Pavicevic, professor of the School of Law in Podgorica (Press Club, Monday, July 10), says that that decision doesn't depend on the government but on international factors and believes that, in case the international community forces Montenegro to accept the electoral conditions which are reigning in Serbia, it will perform a certain kind of crime.

On the other hand, Kosta Cavoski believes that the fate of this country is hanging by a thread and doesn't depend on us only, that we don't know what foreigners want from us and they're not inclined to tell us. He estimates that the Montenegrins, like Tudjman and Kucan, will wait to see what the Americans, i.e. the European Union will say which had up until now supported the collapse of three multi-ethnic federations into 22 national states - the Soviet Union was broken into 15 states, Czechoslovakia into two, Yugoslavia into five and, in case they evaluate for any reason that this year isn't convenient due to the fact that their president is "outgoing", will tell Djukanovic to wait... It isn't impossible, says Cavoski, that Slobodan Milosevic knows about this, since he flew into constitutional changes easily even though he knows how dangerous that is: he is either counting on a more modified reaction from Montenegro or he is "inciting God", or is in the "power of his caprice".

Criticism of Milosevic's constitutional trick is reverberating in the European capitals, while support and promises are being made to Djukanovic, along with appeals for restrained behavior. In his new foreign-policy platform, Russian president Putin stresses that Russia's goal is to prevent the further collapse of Yugoslavia. Back home, different parties are coming out "for" and "against" the elections or boycott and vice versa, in all combinations, while Kostunica states that to run at the elections isn't the primary issue, but a framework of the political unity is and pleads that it should primarily be resolved via a referendum.

Professor Dragoljub Micunovic from the speaker's platform in the Council of Citizens of the Yugoslav parliament reminds us how the citizens of ancient Athens were praised by the citizens of the other cities for having two things which they didn't! The sea and a constitution. By this act, we shall lose both the constitution and the sea, concludes Mr. Micunovic in his "I got it off my chest and have redeemed myself" speech.

The constitutional crisis had on that day, at the beginning of July, gained on its dramatic aspects. Can a political exit be found from this situation or shall all lead towards confrontation? Technically speaking, according to professor Pavicevic's assessment, the parliament of Montenegro has practically defined its position not to run at the federal elections. He believes that the threatening demands of the radicals that Djukanovic be arrested, i.e. that federal regulations be implemented by force should be ignored for now, however fear and insecurity are spreading amongst the citizens.

Veselin Pavicevic sarcastically states that the organization of federal elections, against the will of the Montenegrin state, is a "technical possibility": "They've started spreading their democracy from the army barracks... they could even organize votes in tribal assemblies." Reminding us that he works with young people on a daily basis, he stresses that it is no longer possible to relate to Montenegro like 70-80 years ago.

Slobodanka Nedovic, professor of the School of Law and CESID director, concludes for the Analytic Service that the federal government doesn't have any civil servants, nor services, nor electoral committees, nor office space, nor equipment - it simply doesn't have the logistic possibility to organize the elections alone, without collaborating with republic agencies. In case Seselj's statement on the organization of federal elections isn't purely a provocation, such an act would be a most certain way of commencing a conflict with Montenegro...

Veselin Pavicevic concludes how this is nothing other than one of the last phases of events which had to ensue in the political union of Serbia and Montenegro which was insincere even prior to its formation. CEDEM's research, whose associate Mr. Pavicevic is, shows that from the very beginning when the joint state was formed, the process of a permanent breakdown of legitimacy of the federal institutions has been unfolding, clearly apparent to all, which was especially stepped up in the last two and a half years. Research from a month and a half ago shows that a growing percentage of those polled has no faith in federal institutions - from the president of the federal state, the parliament, government, army to the federal courts. On the other hand, only 25 percent of those polled has great confidence in the Army of Yugoslavia, and as far as the body which has adopted acts on the changes of the constitution (the Yugoslav parliament) is concerned, only 9.3 percent have faith in it. Pavicevic expects that this trend of decreasing confidence in federal institutions will continue especially after these latest events.

Professor Pavicevic notices that the "internal problem" in the Montenegrin milieu is now in the limelight, which, as he says, is a "problem of an intense minority in Montenegro", who make up those citizens who support any kind of policies coming out of Belgrade. In such a context, he lays great value upon Predrag Bulatovic's (SNP top official) statement who said that the arisen stalemate position must be resolved by agreement between SNP and DPS. If an agreement in such or similar conditions doesn't occur, the situation remains dramatically uncertain.