By dismissing as manifestly ill-founded the initiatives to review the constitutionality of the Decision on the State of Emergency of 15 March 2020, the Constitutional Court of Serbia has invalidated the National Assembly’s role in the state of emergency proclamation procedure.
The Serbian Constitution gives the National Assembly the main role during a state of emergency. Under Articles 99, 105, 106, 109 and 200 of the Constitution, the National Assembly shall proclaim a state of emergency and may impose measures derogating from human and minority rights; a disbanded National Assembly shall perform only current or urgent tasks stipulated by law and, in case a state of emergency is proclaimed, it shall regain its full competence until the state of emergency is lifted; and, the National Assembly shall be convoked without notice upon the proclamation of a state of emergency. Pursuant to the Constitution, in the event the decision on the state of emergency is not taken by the National Assembly, the National Assembly shall verify it within 48 hours or as soon as it is in a position to convene. A decision on the state of emergency not verified by the National Assembly shall cease to be effective upon the end of its first session after the proclamation of the state of emergency. The Serbian Government is under the duty to submit the decrees on measures derogating from human and minority rights, which are co-signed by the Serbian President, for verification by the National Assembly within 48 hours or as soon as the National Assembly is in a position to convene. Otherwise, such measures shall cease to be effective 24 hours after the beginning of the first session of the National Assembly held after the proclamation of the state of emergency.
The National Assembly Speaker’s notice to the Serbian President and Government of 15 March 2020 that the Assembly was not in a position to meet sufficed for the Constitutional Court to conclude that there was no cause to review the constitutionality of the Decision on the State of Emergency, which was adopted by the Serbian President, Prime Minister and National Assembly Speaker rather than the National Assembly.
The initiatives submitted to the Constitutional Court de facto raised the issue of abuse of the constitutional provision exceptionally providing for the proclamation of a state of emergency by the President, Prime Minister and Speaker in the event the National Assembly cannot meet. The Constitutional Court held that it “had no constitutional or other legal grounds to question the Speaker’s notice that the parliament was unable to meet,” wherefore it did not question, under constitutional law, the Speaker’s power to herself suspend the work of the legislature, without first calling and holding a session of the Collegium[1], obtaining the opinions of the MPs, their caucuses or the parliamentary committees on whether it was possible to hold a session, and to opt for the constitutional exception. It thus comes as no surprise, although it definitely gives rise to concern, that the Constitutional Court qualified the proclamation of the state of emergency by the Serbian President, Prime Minister and parliament Speaker as an alternative rather than a subsidiary procedure.
In its explanation of its decision, the Constitutional Court devoted a lot of space to enumerating and analysing the facts supporting the introduction of the state of emergency (the epidemiological situation in China, Spain, France, Italy, Serbia, the unknowns surrounding COVID-19, etc.). On the other hand, it did not deem relevant to examine the actions (e.g. calling and holding a session of the Collegium, obtaining the opinions of the MPs, their caucuses or the parliamentary committees on whether a session could be held elsewhere, et al) that should have preceded the Speaker’s notice to the Serbian President and Prime Minister that the Assembly could not meet. The Constitutional Court explained that it was unable to assess the Assembly’s organisational capacity to meet without delay in an emergency threatening human life and health.
The invalidation of the parliament’s role also brings into question the constitutionally proclaimed sovereignty vested in the people and exercised through their freely elected representatives. The Constitutional Court apparently does not consider the possibility of one MP (merely “the first among equals”) usurping this sovereignty a relevant constitutional law issue.
To recall, the Belgrade Centre for Human Rights filed three initiatives with the Constitutional Court to review the constitutionality of the Serbian authorities’ state of emergency decisions and their compliance with ratified international treaties. These initiatives are still pending before the Constitutional Court.
[1] The National Assembly Collegium is a body convened by the National Assembly Speaker to coordinate and consult on the work of the National Assembly. The Collegium comprises the National Assembly Speaker, National Assembly Deputy Speakers and heads of the parliamentary groups in the National Assembly.
