NEW ELECTORAL LEGISLATION AND THE PRINCIPLE OF* REPRESENTATION: LAW ON THE ELECTION OF MEMBERS OF THE PARLIAMENT AND LAW ON LOCAL ELECTIONS
By analysing the legislative framework which, after two decades, significantly changes the election regulations and the principles of the legitimate constitution of government at the state and local levels, we tried to answer the question: do the newly adopted solutions comprehensively ensure legal security, equality of all participants in the election process and fair representation? Furthermore, how will the new regulations affect the crystallised electoral practice so far, to what extent will the principle of representation be improved, especially the principle of political representation of national minorities. Legal and political analysis of the new solutions set out in the Law on the Election of Deputies and the Law on Local Elections, in a kind of political interim immediately after their adoption, and before their implementation in any elections, confirmed that electoral design cannot be abstracted from the political context and institutional design, our political cultures and traditions, and above all, from the distribution of power among political actors. On the one hand, even the best-defined measure of affirmative action can hardly change the essence of the balance of political power, provide greater representation and realistically greater influence of representatives of various minority options on political decision-making, without changing political culture. But, on the other hand, the electoral system affects the behaviour of voters and political participants in the electoral process, affects the conversion of citizens’ electoral will into the number of seats, and the possibility that the chosen option influences key political decisions, government election, representation, and the visibility of social and political groups in public life. Compared to the previous results, the results of the 2020 elections confirm the more effective and significantly greater political participation, visibility, and influence of minority parties at all levels of political decision-making. In the twelfth legislature of the National Assembly, two crucial legal and political processes were initiated from the point of view of democratic and institutional consolidation: the Act amending the Constitution in the area of justice was confirmed by citizens on referendum, and two parallel inter-party dialogues conducted under the auspices of the National Assembly ended with the adoption of documents from which the most significant changes in the current election model resulted. By analyzing the new election regulations, we can conclude that serious progress has been made in creating legislative preconditions for the interests of various actors to be represented to the extent that ensures efficient and effective participation in political life. That is why we understand the principles of representation, equality, and fairness as a building block of constitutional and electoral democracy, because only by respecting the institution of the Constitution and the law are the rights and freedoms of all members of the community protected.
AMENDING DRAFT LAWS ‒ USE OR ABUSE?
An amendment is a proposal for modifying and adding new parts to a draft law. It represents a part of a wider corpus, the right to legislative initiative, but it always refers to the text of the bill that is on the agenda of a parliament or is in the parliamentary procedure. The aim of this paper is to present the original goal of the amendment, as well as the modification of the purpose of the tabling of this procedural instrument of parliamentary law. An amendment had been traditionally seen as an instrument of influencing the content of the laws passed by the parliament. Given that today, in the era of absolute domination of the government in countries with the parliamentary system of state power, it has become a key player in all stages of the legislative process and the monopolist in proposing the law, the deputies on legislative policy cannot effectively influence the submitting of draft laws in any other way, but by submitting amendments. For the functioning of today’s parliament, however, it is not enough to take into account the dominant position of the government, but we must also bear in mind the key role of political parties and the rules stemming from party discipline. Amendments by opposition MPs (members of parliaments) – in addition to attempting to realize their original purpose – are submitted so that they would speak of government failures, a problem that must be solved, an initiative that should be achieved. Opposition MPs use their right to speak, which is the basis for the performance of all parliamentary functions, and above all of a representative role. Anything that deputies suggest or say, they do so as representatives of the citizens as bearers of sovereignty who, by exercising sovereignty, elect their representatives. Earlier in the science of constitutional law, the question was raised whether the amendments of the opposition MPs – although they represent the means of political struggle in the parliament – are always good-natured or can be regarded as a form of abuse of rights. Obstruction is to some extent always a sine qua non of parliamentary life, given the fact that parliaments are political bodies. On the other hand, the members of the ruling majority are increasingly using the right to file amendments. The aim of these procedural means of legislative procedure, however, is not primarily the intention to amend the draft law, but to discuss and praise the policy of the government and its results and to narrow the opposition’s maneuvering space in criticizing it. In this way, the original meaning of the amendment is modified and they become the means of fighting “for the stage”, during the parliamentary debate on the bill. In this paper, we present and analyze the new practice from the last six months in the work of the National Assembly of the Republic of Serbia, which shows that it can no longer be argued that the amendments are submitted primarily by the opposition and independent deputies, as it was previously considered in the science. The new practice in the functioning of the ruling majority in our parliament is considered to be an inventive, legitimate means of political struggle that takes place in a legal manner in accordance with the valid Rules of Procedure, which is the product of another ruling majority, although one of the greatest Serbian lawyers of the twentieth century, Slobodan Jovanović had considered it as obstruction, that is, “the form of abuse of rights” and “unlawful occurrence”.