Ten minutes for electing a judge

Judicial reform is currently one of the most important political problems in Serbia. Unfortunately, the same problem has been repeatedly rehashed for several decades now but never resolved in a satisfactory manner. We have to go back in history a bit in order to try to explain what is really happening today and what outcomes can be expected. The method of replacing staff in Serbian and ex-Yugoslav  judicial system, starting with the 60’s until now, has always been the same. In short, it consisted of the following – a new constitution is adopted, this new constitution, more or less explicitly, proclaims all courts which will operate after this new constitution is adopted as new courts, and then judges are elected for these new courts. Starting with the 60’s onward, all newly elected judges are expected to be loyal to the political party which elected them. This is how it happened with the constitution of 1990 and now it is happening with the constitution of 2006.

In the 2006 Constitution, and even more so in the constitutional law regarding the implementation of the constitution, there is a more or less clear intent to proclaim these courts as new and elect new judges to staff these courts. One significant change that occurred in relation to the position of judges is the principle of permanent mandates. This change was introduced in the constitution from the 90’s, i.e. during Milosevic’s mandate. At the time, Milosevic used the constitution to establish allegedly new courts, although they weren’t actually new, and to initiate elections for the entire judiciary staff. When the new constitution was adopted in 2006, the government, led by Kostunica, used the same method as socialists and communists. The 2006 Constitution also establishes life tenure of judicial offices, that is, permanent mandates for all judges. However, it also, significantly, provides an exception for judges elected for the first time, whose mandates will last for only three years. Some of us grimly predicted that this Constitution has the intention of proclaiming future courts as new courts. This is obvious especially in regard to the Supreme Court, which was renamed to Supreme Court of Cassation.

At the time, the Judges’ Association of Serbia scheduled an extraordinary session, which I had a chance to attend. I pointed out that certain provisions in the new constitutional law were unconstitutional according to the 2006 Constitution. On these grounds I argued that the law should be challenged in front of Serbia’s Constitutional Court.

And now, let’s see what the current government is doing; It proposed a law which would declare all courts as new, and consequently, necessitate the election of new judges. So, this would mean the election of judges in all the courts. Naturally, judges opposed this bill claiming that it was unconstitutional because the Constitution declared their judicial positions permanent. Based on some of the decisions of the Constitutional Court – I’m afraid that it would argue that this would perhaps be unconstitutional under1990 Constitution. But, under the 2006 Constitution this solution could be interpreted as constitutional because all courts  are new and all judges have to pass selection procedure for the first time, which guarantees only a three-year term, after which the High Council decides whether they will get permanent tenure or not.

I believe that the Judges’ Association of Serbia made a tactical error because the right move would have been to take a public position against the constitution itself, which negatively altered the judges’ position without any justification.

The present leadership, as all the others preceding it, took all the necessary steps to ensure a loyal judiciary, which is, of course, reprehensible. This means that the judicial system, which will be borne of this law, will be no better than the judicial system we have today. The one question that never gained prominence in public discussion is whether we have a good judicial system, which we should be satisfied with. The second question is whether the Serbian judiciary can be reformed in a satisfactory manner within the present constitutional framework or do we need to step outside of this framework.

Changes to the judicial system which would transcend the constitutional framework are attacked as deviations from the principles of the rule of law. Although I am a lawyer and I believe in the concept of the rule of law, I have to give a negative answer to the question. That is, my answer to the question of whether the Serbian judiciary can be changed in a satisfactory manner from within the present constitutional framework would have to be –no, it cannot. My first reason for this belief is the fact that the constitutional framework itself is illegitimate, and some aspects point to the possibility that it is illegal as well (numerous indications point to the possibility that, in the referendum to adopt the Constitution, the majority necessary for passing a new Constitution was not achieved). The second reason is that the 2006 Constitution represents a continuation of the constitutional, political and legal system of an authoritarian era, and is now meant to serve as a basis for creating an independent judicial system – the one thing that cannot be borne from such a milieu.

The next reason which leads me to claim this is impossible, lies in the fact that a significant number of judges couldn’t even create an impression of independence and impartiality. On the contrary, many of them demonstrated their capacity for discrimination. For example, there is a disturbing quantity of cases in which, for no justifiable reason, the statute of limitations has been allowed to run out, both in regard to filing indictments and initiating criminal proceedings. I am not referring here to cases against ordinary people, like you and me, but rather against individuals that belong to what would be considered political and ecclesiastical elites. We shouldn’t forget the case of Ilarion, in which the statute of limitations actually expired during proceedings in front of the country’s highest court. Even when the former minister Petrovic gathered all his strength and requested the removal of the responsible judges on the basis of dereliction of duty, they were ultimately given only a warning without any consequences.

Furthermore, every adult citizen of Serbia has a duty is to testify if requested to do so. If you don’t turn up in court, and do not justify your absence, or if the justification is obviously false, then a judge is obligated to hold you in contempt of court and issue certain compulsory measures, fines or detention. However, if you take a look at our recent history, you will remember that Cedomir Jovanovic, a member of government at the time, refused to testify in the case against Marija Milosevic, the daughter of Slobodan Milosevic. No compulsory measures were brought against him. Then, Dejan Mihajlov, long time secretary-general, failed to appear, without justification, at eight different court proceedings both criminal and civil. He has never been detained, not even when he was one of defendants in the process. And now, we have the case of Ivica Dacic. He was called to appear as a witness in the “Suitcase” affair.  He, it must be said, apologized for his absence, but, then on the very same day appeared for an interview in front of the Serbian government’s building. Obviously, in none of these cases have compulsory measures been brought, which would surely have been brought against anonymous people for similar conduct.

The fourth reason that I must answer this last question in the negative, is, as I’ve already said, that starting with the mid-60’s, every new constitution has been  followed by constitutional laws, which led to either the reelection of all judges or the general election of judges. And I don’t think the current administration will miss this opportunity to ensure a loyal staff in the judicial sector. In my opinion, this is where discussion of a state based on rule of law ends, because such a state cannot be built on the foundations of an illegitimate constitutional framework. When you say something like this, people always respond that you are advocating  revolutionary law, as opposed to the rule of law. However, we must not forget that there is something else that falls between revolutionary law and rule of law and that is so-called ‘transitional justice’. So, when we talk about the position of judges and the independence of the Serbian judiciary, we can’t act as if we were at some British debate club; we have to put the entire thing in the context of the circumstances in which we live. The very function of transitional justice is to bridge the gap between a confused state, with ill defined legal parameters, such as Serbia is today and rule of law. Rule of law cannot just ‘appear’ or spontaneously generate itself, and especially not out of an illegitimate constitutional framework; and it cannot be advocated for by people whose records have never been examined in regard to their professional responsibility and possible responsibility for human-rights violations.

What did I propose to the Judges’ Association of Serbia? (The composition of the High Council, which is responsible for electing new judges, is suspect in a number of different ways. Firstly, it is not in accordance with the recommendations of the European Council; but, let’s leave that aside for now). I proposed that the Judges’ Association of Serbia try to examine the constitutionality, lawfulness of the provisions, but furthermore to attempt something which would represent a significant step towards transitional justice. I proposed that they open up the proceedings to the public. I suggested that they, as a professional association, demand the High Council’s sessions be open to the public, that each candidate for a judgeship have a public hearing, that each candidate be asked the same questions, that they be asked to present their legal philosophy, that each be asked to explain how he would proceed when faced with a conflict of equally important legal principles. I think that Serbian judges, for the sake of their own futures as well as the future of the judiciary of this country, should and could bear this public scrutiny. The same goes for the High Council. I would go so far as to argue that the proceedings should be televised. I think this is more important for rule of law than televising the petty infighting that takes place at the sessions of the National Parliament.

I was told that my proposal is utopian for several reasons; first off, because, according to some estimates, the High Council would have only ten minutes per candidate. But, the High Council could be split in three groups and the time would be tripled. If the procedure is public, and the public is a powerful corrective of these procedures, I don’t see why the proceedings for proposing candidates for the positions of judges need to be secret or confidential. If they like to talk about transparency that much, let them try it out in practice.

What we have here is a collective measure for the removal of all judges; unlike lustration, which is based on individual responsibility of, not only judges, but other officials, as well, for proven violation of human rights. In off-the-record conversations with judges I have often heard the same thing – it would be better to implement a lustration law because then we would have the right to legal remedy and defense, than to apply a law such as this one. This law clearly communicates the intent of the executive authorities to influence the election of new judges, and then through these elected judges, and even more so through the presidents of the courts (who are elected by the Parliment as a political body and not the judges themselves), to influence the decisions of the courts this or that way. Its hard to say which pressure would be stronger: the pressure of political power, both executive and legislative, or the pressure of the public.

Nobody is completely innocent: the Parliment, the government, the judiciary, not even the public is innocent. After the election fraud of 1996, it was impressive to see a number of Supreme Court judges, headed by Judge Zoran Ivosevic, stand up and say– No. That’s enough! We will not be a party to this anymore. They paid with their careers. At that round-table discussion organized by the Judges’ Association of Serbia which I attended, Zoran Ivosevic, who was the founder of that Association, invited judges to look amongst themselves and see if they think that all of them still deserve to be judges. He mentioned several paradigmatic examples. For example, one Supreme Court judge, who is still a Supreme Court judge, at one time, prohibited this Association’s registration and founding, claiming that this entity’s goals are contrary to the constitution. The same judge was a member of judicial council which participated in the electoral fraud in the 1996 local elections. Another example: the former parliament convocation would not include in their agenda a proposal for the removal of a judge, while he was in detention under suspicion of corruption. He has since been sentenced for taking a bribe. I think he hasn’t been relieved of duty to this day. One judge, who is currently in a leadership position of the Judges’ Association of Serbia, hasn’t prescribed any compulsory measures for Ivica Dacic. These are things the judges alone are responsible for, but there is plenty that the Parliment and political parties have to answer for as well.

I heard a scandalous thing, that the former president of the Parliment of Serbia, Oliver Dulic, said – OK, let’s make a deal; the political parties should agree on the percentage of candidates for judgeships they will recommend. I don’t need to remind you of the role that judge Stojkovic, then the Minister of Justice, played in the making of this Constitution and constitutional law.

According to the transitional and final provisions of this law on judges on December 31, 2009 all the currently sitting judges mandates will end. This means that within this very short period, of about a year, all these proceedings have to be implemented, new courts formed, an interim convocation of the High Council must propose new judges, the judgeships have to be publicly advertised and applications for the judgeships processed. I believe that the deadlines will be extended, and with some luck the system won’t completely collapse, but this still leaves a big question mark about what kind of judiciary this process will bear; whether the quality of the judges will be of a higher professional and ethical caliber. The outcome is uncertain.

Translated by Nevena Damjanović

Peščanik, Radio B92, 27.11.2008.