There’s No Vaccine for the Weak Rule of Law

By Đorđe Bojović

How will it be well if we do nothing?

M. Thatcher

There is an indicative part of Obama’s ‘Promised Land’ where he describes his encounter with Václav Havel, former Czech President and democracy champion. By comparing the former Soviet rule where the enemies were well-known for all their malevolence, Havel talked about today’s autocrats who are ‘more sophisticated. They stand for elections while slowly undermining the institutions that make democracy possible. They champion free market while engaging in the same corruption, cronyism, and exploitation as existed in the past.’ The year was 2009, hence before Orbán’s or Vučić’s rise to power in 2010 and 2012, respectively.

Fast forward to today, the prophetic words of Havel unerringly describe the recurrent wave of Soviet-like rule east of Trieste. The ‘new normal’ in dealing with democracy, the rule of law or human rights abuses across Central and Eastern Europe becomes the talk of the town only when it goes as far as inaugurating ‘LGBT-free zones’ in Poland, restricting abortion and adoption grounds in Hungary, or pushing back and mistreating refugees and migrants in Croatia. The year is 2020, and all three countries are EU Member States that have once upon a time successfully implemented the EU acquis and wholeheartedly embraced European values, including notably the rule of law and democracy.

Why does all of this matter? We now come to the central point of the present article – the Western Balkans, or more concretely, the failure of democratic transition(s) and the rule of law backslidings in Serbia. The so-called EU-accession frontrunner, long-time aspirant to join the club, seems to struggle to push through the much-needed and long-overdue rule of law reforms. Serbia has indeed a sluggish track-record in reforms implementation and deeply rooted clientelism, endemic corruption and crippled justice system. 

The European Commission Progress Report of 2020 could not be more clear when it comes to lack of progress in negotiating chapters 23 and 24, which benchmark the progress of the rule of law reforms. The dreary path of EU-induced reforms is all the gloomier knowing that the transition to democracy, which started in 2000, actually has led to regress in the most important areas. The lack of political pluralism, unfair and questionably free elections, and the capture of the judiciary by and for the interests of the government are the epitome of Serbian democracy. This only adds to the bleak picture of the media, as the meagre amount of still independent and impartial news outlets serves to bring to the fore the real depth of overall crisis.

The European Commission’s red alarm meant that for the very first time no chapters were opened, essentially bringing Serbia’s accession talks to a halt. Albeit the political consensus on the EU path is in principle not an issue, Serbian accession to the EU is starkly on a sidetrack. The cutting edge in this sense surely prevails in the area of the justice system and legal protection.

One affair after another succeeds in jeopardizing fundamental rights and freedoms. A whole series of cases shows the overt interference of the executive branch in the independent work of the justice system, breaching the separation of powers. To name just a few, starting from the destruction of Savamala to the recent ones – attacks on journalists, drug production in Jovanjica and arm trafficking of Krušik. Furthermore, state officials have repeatedly glorified convicted war criminal, thereby showing a flagrant disregard of the principle of judicial liability, according to which final judgments – whether domestic or international – must be respected.

These cases therefore indicate the level of insecurity in the judicial system, interference into the judiciary, political pressure on the Prosecutor’s Office and lack of respect for fundamental and human rights. Truth to be told, everyone seemingly agrees on the principles, but there is apparently no agreement on the outcomes. The idea that Serbia should and will eventually join the EU does not restrain the possible measures of Serbian authorities in this process. The current constitutional amendments purportedly aimed at strengthening the justice system were undertaken as a farce with mimicry public consultation (including comments on the selection of judges being submitted by a bakers’ association), thus exacerbating the overall insecurity. 

Yet, there is no magic fix that can mend the broken system. The external push, the strengthened conditionality and the enhanced monitoring have helped to better identify the causes and issues but have so far failed to lead to concrete improvements. Still, prompted by Prelec’s recent article on post-2000 Serbia’s lessons for Montenegro, I want to add to the list a certain number of legal and political commonalities surrounding the countries in transition. In particular for Montenegro, the following three strands could be drawn from the post-2000 experience of Serbia:

  1. The rule of law needs an enabling environment

The rule of law is linked not only to fundamental and human rights, but also to democracy. By definition, the rule of law promotes democracy by establishing accountability of those wielding public power and by safeguarding human rights, which protect minorities against arbitrary majority rules. Therefore, democracy is one of the necessary preconditions for the rule of law. The captured states prevent democratic processes from flourishing, undermining the overall quality of the rule of law. Hence, democracy first and foremost.

  • The justice system

Independent and impartial courts are another cornerstone of the rule of law. Effective judicial review of the conformity of acts and decisions of the executive branch with the law has to be ensured. The need to de-capture the judiciary will not only serve as the prime example of true democratisation of the country, but there will not be a more robust example to demonstrate the willingness to effectively install l’état de droit. Thus, the prosecution of numerous affairs (Envelope affair, Možura wind farm) as well as state actors will be indispensable to embolden lower court judges and prosecutors to act accordingly.  

  • No rule of law backsliding prevention mechanisms exists to date

See under Poland and Hungary as the EU Member States.

To conclude, the need for a profound and decisive change concerning the rule of law, particularly the respect of judicial independence and fundamental rights, is of the utmost necessity and urgency. We all agree that the rule of law is the backbone and main driver of economic and social development in European societies. But more importantly, even if the new Montenegrin government succeeds in the democratic transition while remaining responsible and accountable, this does not ensure that the transformation is cemented. The fight for democracy and the rule of law is a constant one.

This text has been prepared within the project “Strengthening the Rule of Law in the Western Balkans: Old Tools for New Rules” implemented by Politikon Network, in cooperation with Centre for Contemporary Politics, and with the support of the Embassy of the Kingdom of the Netherlands.

Đorđe Bojović is EU Law scholar holding LL.M from College of Europe and MSc from LSE. Worked throughout the Western Balkans on regional cooperation, human rights, Serbia-Kosovo talks and EU integration of the Western Balkans.

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