5 April 2001, Volume
MONTENEGRIN INDEPENDENCE: WHAT THE LEGAL EXPERTS SAY.
Part I. (Part II will appear on 12 April.)
A roundtable hosted by RFE/RL/RL's Srdjan Kusovac.
Belgrade law professors Vojin Dimitrijevic and Pavle Nikolic, and Podgorica law professors Milan Popovic and Nebojsa Vucinic are with us to discusss the legal aspects of the widely expected referendum on Montenegrin independence.
Early parliamentary elections are to be held on 22 April. According to opinion polls, the pro-independence Victory for Montenegro coalition has the best chance of winning. President Milo Djukanovic said that if that happens, a referendum on independence will be held by the end of June. Opinion polls suggest that a majority will vote for an independent state.
On the other hand, those who want to keep a joint state of Serbia and Montenegro object not only to the referendum, but also pose arguments as to whether Serbia and Montenegro have a legal right to independence.
Lawyers have been weighing in. Professor Nikolic stresses that both the Montenegrin Constitution as well as the federal one must be respected. There are two postulates he keeps in mind while analyzing the possibility of Montenegro's independence. The first one is that the will of the people of Montenegro and Serbia to decide about the sort of a state they are going to live in must be respected. But the second one is that one must honor "a centuries-old aspiration of the people to be united," which was "violated by the ill-intentioned partition made by the [World War II-era communist] AVNOJ [legislation] and by the catastrophic 1974 constitution," which increased the powers of the republican governments and communist parties at the expense of those at the center (see "RFE/RL/RL Balkan Report," 19 January 2001).
If Montenegrin voters decide that Montenegro should become independent, the crucial issue will be how to carry it out. I say that because the 1992 constitution -- which was drawn up by many individuals and political groups now in power in Montenegro and who now support secession -- does not provide for secession. Any secession would thus be unconstitutional.
The right to self-determination is absolutely indisputable and must be respected. However, what remains disputable is the way to carry out the secession. I was against the unconstitutional secession of [the other] former Yugoslav republics [in 1991 and 1992], and that is why I think it would be too bad to do it again. Finally, [an unconstitutional succession] would not make a good basis for future relations between an independent Serbia and an independent Montenegro.
Secession must be carried out according to the constitution, and that can only be done after enacting constitutional changes to provide for the possibility of secession. But, bearing in mind that articles two, three, and some others of the constitution would also have to be modified, that can only be done by the House of Citizens of the federal parliament, where the citizens of Serbia have far more representatives. However, once the House of Citizens accepts the proposal for secession, it will also also need to be accepted by the parliaments of the two republics. That means that a decision by the parliament of Montenegro would not be enough; the parliament of Serbia would have to agree, too.
Professor Popovic reminds us that the two Montenegrin government "platforms" on future relations with Serbia are based on non-acceptance of the federal constitution as either a substantial or a procedural framework for resolving the issue of future relations with Serbia. Professor Popovic argues that Serbia has already formally and legally seceded from the Socialist Federal Republic of Yugoslavia -- and from the Federal Republic of Yugoslavia as well.
The Montenegrin government platform itself -- and I am not talking about the revised platform from December 2000, but about the initial one from August 1999 -- rejects the Constitution of the so-called Federal Republic of Yugoslavia as a framework....
I do not have to remind you that Article 180-somethng of the Constitution of the Republic of Serbia from 1990 provided for the very first constitutional provision for secession on the territory of the then Socialist Federal Republic of Yugoslavia. The article says that the Republic of Serbia will not accept any act of the federal government or of other republics' governments that are contrary to the interests of the Republic of Serbia. It goes without saying that the Republic of Serbia will explain and interpret whether something is contrary to the interests of the Republic of Serbia or not. No one has ever even tried to reconcile that article with the various other constitutions.
From a constitutional and legal standpoint, as well as on the basis of international law, everything the Republic of Serbia has done since 1990 or 1992 regarding the constitution and constitutionality, and especially regarding practical political activities, is nothing but a sneaky, one-sided, and violent secession. When I say sneaky, I mean that it has always been covered up by a deafening propaganda about the pretended wish to preserve Yugoslavia....
After 1997-98, the definitive act of destroying the Constitution of the so-called Federal Republic of Yugoslavia was the so-called constitutional coup that took place on 6 July 2000, when the last element that legally linked Serbia and Montenegro was destroyed [through a package of amendments sponsored by Milosevic (see "RFE/RL/RL Newsline," 7 July 2000)].
Since 6 July 2000, there has been neither a Constitution of the Federal Republic of Yugoslavia nor the Federal Republic of Yugoslavia itself, except for two aspects of it. One is the majority Serbian nationalistic coalition and its alliance with the political minority in Montenegro. This is a strong force in practical political terms but not an institution provided for in the constitution. The other aspect is the international recognition of the federal state, even though that state is not recognized by Montenegro, which is one of its two components.
Our guests tonight, Professors Pavle Nikolic and Milan Popovic, also disagree on how to interpret the Constitution of Montenegro.
Where secession is concerned, the Montenegrin government would have to obey the Constitution of Montenegro. It has a provision that requires a referendum before the borders or status of the state can be changed. Montenegro's separating and becoming an independent state will also require a change in the constitution, which explicitly says that Montenegro is a member of the Federal Republic of Yugoslavia.
It also means that after the referendum, in case a necessary majority votes for secession and a sovereign state, a change in the Constitution of Montenegro will be needed in order to carry out the entire process of separation in a legal and constitutional manner.
Professor Popovic has his doubts as to whether all this will require a two-thirds parliamentary majority.
It is well known that Montenegro joined the so-called Federal Republic of Yugoslavia after the 1992 referendum, based on the law that basically requires a simple majority for a referendum to be valid. That means that at least 50 percent plus one voter of the entire electorate would have to take part -- I insist that it does not mean 50 percent of the citizens but of the voters. Out of them, 50 percent plus one would have to vote for any given option....
In the case of Montenegro today -- or, more precisely, since 1997 and definitely since the 6 July 2000 constitutional coup -- Montenegro has already changed its status. This happened not by Montenegro's own actions, but by the secession of the Republic of Serbia.... By that act, the status of the so-called Federal Republic of Yugoslavia, the Republic of Serbia, and the Republic of Montenegro -- and we are now focused on the Republic of Montenegro and its legal status -- has been changed.
Therefore, what the Republic of Montenegro is seeking now...is not a referendum on changing the legal status of the state, since that change has already been carried out by the Republic of Serbia without consulting Montenegro. Instead, what is at stake is a referendum on clarifying the legal status of the state and getting it out of a sort of a semi-chaotic situation.
Supporters of the joint state of Serbia and Montenegro often use -- especially in the parliament of Montenegro -- terms such as [the communist-era legal term] "constitutive peoples." On that basis, they argue that the Muslims, Croats, and Albanians who are citizens of Montenegro and legally reside there do not have the same rights as those who declare themselves Serbs or Montenegrins. Does the law say that citizens of Montenegro should be divided according to their ethnic origins for the purposes of the referendum?
I have only two short comments. The first is that such a policy and attitude are absolutely unacceptable for a civic, modern, and democratic Montenegro. This is discriminatory nationalism. The other comment is that the [opponents of the referendum and independence] reveal their own political weakness and lack of confidence by resorting to such a fascistic ploy.