BLOG  Legal Angle

20.12.2021. 

Written by Luka Jovanović
attorney-at-law and FSD Program Director

REFERENDUM’S INVISIBLE INK

Even though voters will only have to answer a single question on January 16th – pertaining to the election of judges and prosecutors – all social protagonists are aware that the ballot will have additional questions, written in invisible ink.

One of the questions written in such ink will be the question of the future of Serbia‘s European integrations.

Indeed. PM Mrs. Brnabić has, in her statement given on December 19th, said that if the changes to the Constitution are not passed, i.e. if the answer at the referendum is „No“ that would delay Serbia‘s European integration by at least four years. The PM based her claims in the recently passed changes to the Referendum and People‘s Initiative Act.

Is this claim made by the PM true? Legally speaking, of course?

Article 44 of the Referendum and People‘s Initiative Act states that „If citizens pass a decision against the act or question that was the subject of the referendum, another referendum on the same act or question cannot be held until four years have passed since the previous referendum on said act or question.“

The Referendum Decision from November 30th proclaimed that the subject of the referendum will be the National Assembly‘s Constitutional Amendments Act. The question at the referendum will be: „Are you in favor of the confirmation of the Constitutional Amendments Act?“

So, as the question pertains to a particular act, with unique content, the law prescribes that a new referendum for the confirmation of that individual act cannot be held until sufficient time, dictated by law, has passed since the previous referendum.

When it comes to EU integrations, which the PM is warning us about, her warnings would hold true if the referendum were to be held if the legal basis for the referendum was the Referendum and People‘s Initiative Act. However, this is not the case! The decision to hold the referendum on January 16th was not legally based on the new bill, but rather on Article 203. of the Constitution of Serbia.

And according to the Constitution, if the proposed changes to the Constitution are not confirmed at the referendum, the entire process of changes to the Constitution has to start all over again. The Constitution itself, however, does not stipulate any time limitations regarding when new changes to it can be proposed after previously proposed changes are turned down at a referendum.

In fact, even if we were to accept the point of view of Mrs. Brnabić regarding the January 16th referendum, and the notion that a Law can dictate the conditions under which the Constitution can be changed, her interpretation of the Referendum Act, to which changes were proposed by her government and which the National Assembly passed due to unprecedented public pressure, is flawed.

Namely, Article 5 of the Changes to the Referendum and People‘s Initiative Act states that any referendum that was scheduled before these changes come into force will be held under the rules proscribed by the act that was in force at the time when the referendum was scheduled.

In this specific case this means that:

- At the time when the referendum on the changes to the Constitution was scheduled (November 30th) the Referendum Act in force was the one that came into force on November 26th (which prescribed a one year moratorium on failed referendums).

- The Changes to the Referendum Act (which extended the moratorium on failed referendums to 4 years), which Mrs. Brnabić is basing her claims on, came into force on December 11th.

Ergo: The referendum scheduled for January 16th will be regulated by the Referendum Act that was in force on November 30th (one year moratorium on failed referendums).

* * *

After all that was said all that remains is the question how to qualify the fact that Mrs. Brnabić, wittingly or unwittingly, is trying to pass her own flawed interpretation as fact ahead of the scheduled referendum to the citizens of Serbia and in particular to the part of the public that cares most about European integrations and is politically the most active?

Whichever qualification of the ones mentioned above you decide upon does not bode well for the Prime Minister as it outright refutes her.

As we have previously stated while commenting on the changes to the Referendum Act the question of census is secondary in comparison to the question whether the decision on the referendum is made in a way and through a process which guarantees a decision that would have political legitimacy.

It is exactly because of this legitimacy that it is impossible to accept that a decision on such an important issue should be based on inaccurate claims, especially those coming from the Prime Minister of whom we should expect to strengthen the legitimacy of the Act that was passed by the National Assembly, the very assembly who‘s very legitimacy is hotly disputed by the public.

All other questions written in invisible ink, unlike the one Mrs. Brnabić tried to speak about, still remain. They will become visible once the referendum campaign starts to heat up.