The news very quickly spread through the media that the Constitutional court rejected the initiatives to begin proceedings to assess the constitutionality and legality of the Decision on declaring a state of emergency, which “means that such initiatives are not founded.” i.e. that the decision, in the Court’s opinion, was made “in accordance with The Constitution.” Several media outlets, including the online editions of Danas and Politika, carried the initial news of the portal nova.rs, retaining the bombastic headline Constitutional Court: state of emergency declared in accordance with the Constitution.
The media that published this news have misinformed the public. The rejection of the initiatives for the assessment of constitutionality does not lead to the conclusion, and especially not to the headline, that the court has confirmed the constitutionality of the disputed act. The initiative for the assessment of constitutionality and legality can be submitted by anyone, and the Constitutional court initiates the procedure for the assessment of constitutionality only if it assesses that there are grounds for initiating a procedure regarding the initiative. If an authorized proposer addresses the court, the court is obligated to initiate a procedure without a prior assessment of the merits.
So we have at least two serious problems. The first is that the media, without any consultation (which was obviously necessary) and understanding of the procedure, misinformed the public that the court had made a decision that it hadn’t actually made. Then, in the same way, without any fact-checking or further inquiry, other media transmitted the same news and contributed to the spread of the misinformation.
The second problem is that the correct information is even more shameful than the misinformation. The Constitutional court actually decided not to start the procedure of assessing constitutionality because it considers that there are no grounds for initiation. The Law on the Constitutional court1 is very clear on when the court should reject an initiative – when it finds it inadmissible, because the stated reasons for the challenge do not support the claim that there is a basis for initiating proceedings to assess constitutionality or legality.
In other words, the majority of judges of the Constitutional court are of the opinion that the issue of the constitutionality of declaring a state of emergency is, legally and in every other sense, unacceptable. The manner of declaring a state of emergency, the possibility of achieving the proclaimed goal by other (milder) measures, the fact that it affected all inhabitants of Serbia, none of that was enough for the Constitutional court to see making a decision on this case as acceptable.
We can expect similar rejections of many other initiatives on acts passed during the state of emergency. If the proclamation itself was not important enough, why would it be different for any act passed during that state of emergency?
The headline should actually have been Constitutional court: we don’t care about the state of emergency. This is also the answer to the question which has been repeatedly posed by lawyers, attorneys, and journalists for almost two months – will the Constitutional court initiate the procedure of assessing the constitutionality of numerous acts passed during the state of emergency on its own initiative? They obviously will not do that because they are not even interested in other people’s initiatives. They obviously had some far more important matters and legal issues to resolve. And what those matters and issues are, we will probably never know.
One could also ask what has happened to the authorized proposers. Those whose proposal the Constitutional court couldn’t ignore – state bodies, bodies of territorial autonomy or local self-government, or at least 25 MPs. The shortest answer would be that they are, to a greater or lesser extent, in the pocket of the party. And there is no way out of that pocket, especially not with a proposal for the assessment of constitutionality.
There is a total of 15 judges of the Constitutional court. Five are elected by the National assembly, five are appointed by the president, and five are appointed by the general session of the Supreme court of cassation. It is clear that the majority of judges are appointed or elected by political bodies. This is indicative, but not crucial at this time, as we have no information on how each judge voted.
The judges of the Constitutional court should remember the oath they took when they accepted this duty:
„I hereby swear that I will uphold the Constitution and the Law in my work and that I will perform my duty honestly, conscientiously and impartially.”
If anything was made evident during the recent state of emergency, it was the fact that the masks are off. Absurdly, exactly at the moment when we are all being advised to wear them. We have finally seen the undisguised suspension of the assembly, the completely naked force of the executive power and the tragic death of the Constitutional court. All this in live broadcast.
Bearing in mind that their institution has officially passed away, it would be best for all judges of the Constitutional court to resign. I suggest they all go home, where they were already isolated during the state of emergency. This would give them the opportunity to finally address issues they deem relevant. The president can take over their functions, just like he has taken over everything else.
It may not be entirely realistic to expect resignations. We citizens pay the judges of the Constitutional court quite well for their shameful inaction. If love of the sinecure still prevails, and the judges persist in their empty functions, in the future, it would be best for them to stay silent. The next time they conclude that an issue that affects six million people and their numerous rights is irrelevant, they should simply shut up. Pretend they are not there.
Otherwise, they are risking severe shame – and they will still need to live and work after their terms are up.
Translated by Marijana Simic