Serbian law experts say that any final deal with Kosovo, changing the country’s borders, will affect the constitution and must therefore go to a referendum.
Maja Zivanovic BIRN Belgrade
As Serbian leaders hint at a referendum on the future status of Kosovo, legal experts insists that the status of the former province must be regulated by changes to Serbia’s constitution, regardless of any possible deal with Pristina.
Vladimir Djukanovic, an MP for the ruling Serbian Progressive Party, recently confirmed that a referendum is an option for the Serbian authorities if a final deal is reached with Kosovo.
“In that case, we will ask citizens to decide, if that happens [the deal]… let’s see first,” Djukanovic told BIRN.
Djukanovic echoed President Aleksandar Vucic’s announcement of August 23, when he said that if a solution was found to the Kosovo issue, Serbia would have to hold a referendum.
“I will propose what I can, and we will have to go to a referendum; let the people say,” Vucic said.
However, Novi Sad law professor Slobodan Orlovic says Kosovo’s status in Serbian eyes was already changed in 2013 – and that reality must be reflected in the constitution.
“The constitutional status of the AP [Autonomous Province] of Kosovo and Metohija changed with the First Brussels Agreement in 2013,” Orlovic told BIRN.
Serbia’s constitution names Kosovo as an integral part of Serbia, despite having de facto broken away in 1999, following NATO intervention in support of independence-seeking rebels.
For this reason, the de facto border with Kosovo is called only an “administrative line”.
Any formal changes to Serbian borders require constitutional amendment.
On April 19, 2013, an agreement was signed in Brussels by Serbia and Kosovo that mapped out points of negotiation and compromise concerning Kosovo’s Serbian minority, the nature of power sharing between Kosovo’s Serbian and Albanian communities, and the prospects of Kosovo’s involvement in international organisations.
In December 2014, Serbia’s Constitutional Court rejected a request to assess the constitutionality of the so-called Brussels Agreement, deeming it a political rather than a legal issue.
The proposal for a constitutional assessment was filed by the right-wing nationalist Democratic Party of Serbia, DSS.
Its MPs claimed the Brussels Agreement was a legal act by which the Serbian government had “abolished the institutions of Serbia in Kosovo, violating the territorial integrity of Serbia”.
Orlovic said that to solve anything in relation to the constitutional status of Kosovo in Serbia beyond what the current constitution regulates, a constitutional referendum, in which citizens declare themselves, must be held.
Asked whether the Serbian President was likely to go for such a referendum, Orlovic said the authorities must initiate the process of changing the constitution and, as part of that, call a constitutional referendum if the proposed changes are adopted by a two-thirds majority in parliament.
He added that the Serbian President, government, one-third of the MPs or 150,000 voters may all propose provisions regulating the constitutional status of Kosovo and Metohija – to use the Serbian term for the ex-province.
Other legal experts in Serbia agree that if Serbia and Kosovo reach a deal that includes border corrections, partition on ethnic lines or some kind of land swap, Serbia must change its constitution.
Bogoljub Milosavljevic, a constitutional law professor from Belgrade, says recognition of Kosovo’s independence could not be done without changing the constitution.
The document says that Serbia “consists of two autonomous provinces, Vojvodina and Kosovo and Metohija”, he recalled on Radio Free Europe on August 23.
However, some Serbian opposition parties oppose the idea of a referendum, saying it will be abused to legitimise “backdoor” deals reached by the President.
They are demanding a broader and more open national debate on any future deal with Kosovo, and on rumoured land swaps.
Borko Stefanovic, lead of the Serbian Left, told the Belgrade-based daily Danas that a referendum was an unacceptable solution for the final status of Kosovo, as it would merely serve as an alibi for backdoor deals designed to enable the leadership to say, “We didn’t do it, the people decided.”
Kosovo President Hashim Thaci and Vucic will meanwhile meet in Brussels on September 7 for a new round of EU-facilitated talks aimed at resolve the dispute between the two countries, which many believe has entered its final phase.
Two days later, Vucic will visit Kosovo to present “guidelines and directions of state policy towards Kosovo”.