The Action Plan for Chapter 23 in the process of the integration of the Republic of Serbia into the European Union an amendment to the Constitution was foreseen in the sphere of the judiciary by the end of the year 2017. That deadline has long passed, and it is clear that that goal will not be fulfilled by the end of 2018 either. The process of constitutional amendment is marginalized, and the significance of the constitutional reform of the judiciary is minimized. It seems that the Ministry of Justice is purposely prolonging and obstructing the process of constitutional reforms. In September of 2018, a third version of constitutional amendment proposal was submitted, whereby the possibility was still left for their correction following a public consultation. The Foundation Public Law Center tracks the process of constitutional amendments to date in the Republic of Serbia and the previous two versions of amendments proposed were analyzed by eminent authors.
The first impression is that there is a lack of legal consciousness regarding what in fact is materia constitutionis, in other words what should be regulated by the constitution. Materia constitutionis is unnecessarily being broadened to include things that are to be regulated by laws. The Constitution is being transformed into a legal medley. It is necessary to find a balance in establishing the scope of materia constitutionis, which is after all the first step that should be contributing to the development of constitutional culture.
The third version of amendments; despite having the representatives of the Ministry of Justice affirm that their content is harmonized with the views of the Venice Commission, is also characterized by serious weaknesses, and the major shortcomings from the previous versions were not eliminated. The Ministry of Justice continues to foresee subtle mechanisms to politicize the judiciary. That is first and foremost evident in the proposed mechanism for electing the members of the High Judicial Council; as well as the constitutionalization of a special institution for the training in the judiciary.
An unusual form of election is prescribed for the members of the High Judicial Council (HJC). The National Assembly elects five members of the HJC by way of votes by three fifths of all of the members of the National Assembly (the other five members are judges). If all members of the HJC are not elected in this way, the remainder of the members are elected by a special committee whose members are the President of the National Assembly, the President of the Constitutional Court, the President of the Supreme Court of Serbia, the Supreme Public Prosecutor of Serbia and the Protector of Citizens. This committee is already being referred to as “The Frankenstein-body” due to the fact that its majority will be in line with the wishes of the current government. In that way, the existence of the majority of three fifths is stultified, seeing as its formation involves the nurturing of the spirit of compromise between the position and opposition, for the purpose of electing incontestable candidates, acceptable to both sides.
A solution persists for the individual which is being elected for the first time as a judge can only be elected if he has completed the training at the Judicial Academy. If this institution is established as a precondition for the election of judges; that would mean that it executes the preselection of candidates and that the HJC practically has before it, pre-filtered candidates. By controlling the number of candidates who are enrolled at this institution, as well as the selection of candidates who have applied for admission, the elective function of the HJC is restricted. A special institution for training within the judiciary should not be constitutionalized, because regulation of the conditions for the election of judges should be defined by law. However, if such an institution should be foreseen by the constitution, the question is raised as to how to ensure its independence, seeing as it is assigned a significant task of preselecting the candidates for executing the judicial function. Special training at the Judicial Academy should not be the only means of entering into the judiciary, because there should be mobility for those jurists who have gained their knowledge and expertise within the scope of other legal occupations.
As long as the process of drafting the constitutional amendments does not involve experts from the constitutional sciences and profession as a whole, it is for certain that by way of bureaucratic conceptualization of constitutional provisions the executive power aims to foresee mechanisms for gliding into the judiciary.