Everyone must participate in building a democratic legal culture – judges, prosecutors, professors, lawyers, but also politicians and citizens. – What the photo-robot of a prominent lawyer looks like
With the election of prominent lawyers, which is expected soon in the National Assembly, Serbia will complete the second phase of judicial reform, and the third phase will begin the moment the new convocations of the High Council of the Judiciary (HCJ) and the High Council of the Prosecution (HPC) are constituted. Along with the improvement of its judiciary, our country is facing a crisis of the rule of law on a global level
We talk about these topics with Dr. Vladan Petrov, a full professor of constitutional law at the Faculty of Law of the University of Belgrade, who is also a judge of the Constitutional Court of Serbia and a member of the Venice Commission.
You participated in the drafting of constitutional amendments in the field of judiciary and changes in judicial laws. Are you satisfied with what has been done so far? Is there anything that needs to be changed and fixed „on the fly”?
For work on writing judicial laws, I proposed to the Ministry of Justice colleagues from the Institute of Comparative Law in Belgrade, doctors of law, who gained affirmation in the Working group for drafting constitutional amendments. I am satisfied that science and profession played an important role in this process. The foundation of an independent judiciary was laid by constitutional amendments, and the judicial laws are a good construction, which now needs to be „breathed into life”. It is a strategic process and its success will depend on the implementation of the law and on a democratic legal culture, in the construction of which everyone must participate – judges, prosecutors, professors, lawyers, but also politicians and citizens. The responsibility lies with the whole society, not with individuals. It is important that we get judicial councils, which in terms of composition, competences, and general constitutional role – to be the guarantor and creator of a more independent judiciary – are new state bodies, the likes of which we have not had before.
Along with several candidates whose qualities are known to the legal public, the question arises whether Serbia has other outstanding lawyers who could have applied for the competition, but perhaps have no desire to participate in the work of the HJC and the HPC.
It seems that the current procedure of selecting members of the council from among prominent lawyers, with its openness and level of democracy, has contributed to the formation of a „photo-robot” of prominent lawyers. This is a lawyer who has material evidence of legal knowledge, has an attitude and knows how to defend it with dignity and legal arguments. A prominent lawyer is not a „political eunuch”, a person who has no political beliefs and has never had them. This is, however, a person whose identity is predominantly determined by legal knowledge and not by political commitment. Such a lawyer will be an important factor in the body that will build a new judiciary in Serbia. It goes beyond politics.
Otherwise, I would not like to go into the reasons why certain prominent lawyers, for example, some other fellow professors, did not apply for the competition. I would like to congratulate those who applied and proved, by their behavior and answers in the parliamentary committee, that they are outstanding lawyers. It is not easy to find yourself in the Assembly at a lectern that is not a chair and answer to politicians.
For example, you are a prominent lawyer, but you could not apply because you are a judge of the Constitutional Court. Also, those who have recently retired from judicial positions and have a lot of knowledge and experience could not apply for prominent lawyers in the HJC and the HPC.
And if there was no legal prohibition for a judge of the Constitutional Court to be a candidate for a member of the council, it would be physically impossible. The Constitutional Court is burdened with work, and it will be the same with the HJC and the HPC. Law professors who will be elected to these positions must be aware that with the utmost effort they will be able to balance their faculty obligations with work in these bodies. I expect them to initiate and create, and not to „merge” in the majority of judges or prosecutors.
As for the retired judges, there are those who believe that such lawyers would bring additional calmness, prudence and authority to the council. However, it should be borne in mind that retired judges are professionals whose way of thinking is, by nature, that of a judge. The HJC must not turn into a „small court”. It must be an organ of two different qualities – judicial and „non-judicial”, which, in that union, will act as a body of the highest authority. I guess that was what guided the writers of the law when they ruled out the possibility of people over the age of 65 being council members. At the same time, the European standards in this field also prohibit retired judges from being members of the council.
To what extent will politics influence the choice of holders of judicial positions through prominent lawyers who will be elected by the National Assembly as a legislative and – political body?
The election of prominent lawyers in the Assembly is important, because the national representation gives a „constitutional-legal seal” to their prominence. In this way, the connection with the citizens as the bearers of sovereignty will be maintained, and prominent lawyers will participate in building a more independent judiciary for the sake of the citizens, who indirectly gave them a „mandate”, and for the protection of their rights.
In any case, constitutional and legal solutions provide guarantees that there will be no direct influence of politics on the work of prominent lawyers in the councils or on the judiciary as a whole. Indirect or covert influence cannot be completely excluded even in the most developed constitutional democracies. That is the dry truth, the rest is either ignorance of things or hypocrisy.
What else could be changed in the Constitution of Serbia without the preamble?
The Venice Commission recommended that the constitutional judiciary should be reformed, especially the method of electing judges of the Constitutional Court in the Assembly, and the provision that enables the so-called party-bound mandate of deputies (Article 102 paragraph two of the Constitution) should be also abolished. I would rather remind you of the text of the late Professor Ratko Marković, entitled „Toward the Future Constitution of Serbia”, published in „Politika” on July 8, 2017. In that text, he suggested changing the method of electing the President of the Republic, that is, switching from direct election by the citizens to indirect election by the parliament. The professor believed that the „form of two-headed executive power”, as it exists in our system, „has long been spent”. Such a change would, normatively, lead to a „cleaner” form of parliamentarism, in which it would be known exactly who determines policy and who is responsible for it. The President of the Republic, who would be elected by the parliament in the future, would be the classic „master of ceremonies”, and political responsibility would be completely concentrated in the Government. From a legal and technical point of view, it would be a small „intervention” in the constitutional text. However, it would have to go to a referendum, so the citizens would have the last word on it.
The rule of law is in crisis at the global level. Is it possible to expect international law to be resurrected in the conditions of war?
The rule of law is not a political-ideological mantra that exists only in the speeches of politicians. It is a system of fundamental social and legal principles and values, which is constantly being expanded and reviewed. At the interstate level, legal standards common to all legally civilized states of Europe and beyond have been established. In this sense, the role of the Venice Commission and the Council of Europe is crucial. Serious countries that joined the European Union, but strive to preserve their national dignity, such as Hungary, pay attention to the relationship between the international and national concepts of the rule of law. I am currently participating in the Central European Professor Network project organized by the Central European Academy in Budapest.
At the global level, the rule of law has retreated before the challenges of restructuring the world political scene. The international legal order based on the UN Charter, on universal values, such as the right to life, human dignity, freedom and equality of individuals and states, seems to have been left without effective protection mechanisms against the greatest dangers that threaten humanity – the virtual and real conflict between old and new great powers. President Aleksandar Vučić said that in 1999, with NATO’s attack on the Federal Republic of Yugoslavia, „modern international law died”. The corona virus epidemic was not enough of a warning that life, health and human dignity are the highest values. The pandemic, on the contrary, showed all the „cracks” of the dehumanized system of isolation of individuals, groups and states. It is time for the resurrection of international law and a true value system, although, from the point of view of the current moment, my message is rather a cry for „grains” of justice and truth in the world.
How to build paths of friendship and partnership at the regional level?
By further strengthening the economy and opening up, not isolation and closure. We must continue to build paths of partnership and reconciliation at the regional and interstate level. Problems are no longer solved on a territorial and national basis. Human dignity, legal security and quality of life are values that serious states recognize and strive to protect strategically, with joint forces. The culture of dialogue is the quality that distinguishes a real from a fake, quasi-state. Constitutions and laws, as well as agreements, legal or political, remain a „dead letter on paper” if there is no sincere will and real strength that lead to economic progress, cultural integration and a better life for citizens. I am convinced that Serbia, despite the difficult times, is on the right path.
„Archive” is published again
You recently restored the Archive for Legal and Social Sciences, which did not exist for a while, and is a scientific treasure.
There is no future without preserving traditional values, and one such, in the field of legal and social sciences, is represented by the journal „Archive”. It was not renewed by me, but I became the head of the editorial office of a journal that no longer existed. With the help of the Institute for Political Studies in Belgrade, my friend, unfortunately, the recently deceased Dr. Živojin Đurić, and a group of younger and more experienced colleagues, „Archive”, which enjoyed a reputation in the scientific space of Yugoslavia between the two wars, has begun to be published regularly. The great „Archive” is „on its feet” again, and that’s why I’m proud. The source of its strength is found in the diligent work of people who are prevented from intellectual elitism (scientific, political and any other) by intellectual patriotism. I believe that the latter should be one of the bases of gatherings in Serbia in the future.
Politika from 17 April 2023 (original text in Serbian can be found on https://www.politika.rs/sr/clanak/548396/Vaskrs-medunarodne-vladavine-prava-je-moguc)
