NISPAcee Annual Conference 2006
WG: Politico-administrative relationships
April 2006
Title: The Role of Presidency in Ensuring Accountability, Professionalism, Transparency and Legitimacy of the Policy Process – The Case of Serbia
Author: Nenad Rava[1]
Abstract
The governance in Serbia is operating in an extremely dynamic environment that is characterized by turbulent political change, strong external pressures from the international community and negative institutional legacy from the 1990s. In that context it is challenging to conduct a research based on an “inventory” of current relationships and institutional structures in general, and the politico-administrative relationships in particular. What was the Serbian governance in 2001 is rather different from the Serbian governance in 2005 and will be even more different after the change in the legal framework (to become effective by mid-2006). An early observation is that there is no genuine and permanent institutional framework and that the influence of the governance style of a government of the day is the key factor defining the actual institutional set up. However, without a careful and intelligent analysis of the current situation and the possible future scenarios it will be even more challenging to systemically and holistically deal with the emerging governance reforms.
The description of formal powers and patterns of executive from a politico-administrative perspective should be done from the angle of both the current and new legal frameworks and the actual practice. This is so due to the fact that the legal framework and the practical dynamics and relationships differ considerably given the weak legal enforcement and weak resistance to external political pressures. The support structures fall into the same observation and so they remain rather unclear and confusing, as well[2].
The administrative tradition and patterns of behavior in the Serbian governance are complex and often misleading. There seems to be a mixture of central-European legalistic bureaucracy, an early democratic tradition from the begging of the last century, quite a few traces of patrimonial pattern internalized under the Ottoman rule, unique legacy of the communist regime and the impact of political turmoil of the 1990s. Moreover, the perception and expectations of the public at large are often quite different from the ones of the political elite, especially in the regard to the role of the state in the society. The transition dynamics and the plurality of factors[3] prevent clear understanding of the current state of affairs. Furthermore, extensive fragmentation of the society has reflected upon the fragmentation of governance. Therefore, it is indicative that the Serbian governance at different periods and in different segments can be classified into almost any of the typical groups.
The institution of the President – Presidency – has not been researched until recently. An initiative supported by UNDP focused on review of organizational, management and functional aspects and has produced one compiled report (joint effort of professor Guy Peters and the author). The findings show that the Presidency is weakly institutionalized and has low policy capacity, mainly due to the fact that the current President is the first democratic president ever in Serbia. The lack of clear legal framework, negative practice from the period of Milosevic rule and a specific political context of cohabitation (the President is leading the most important opposition party) further complicate the relationships within the Presidency[4] and between the Presidency and the Government.
However, there is an evident potential in strengthening the role of the President (as the only directly elected official) in the policy process. Given the shortcomings of the existing policy process[5] the engagement of the President and the support structures through a transformed Presidency could further ensure democratic accountability, professionalism, transparency and legitimacy – all of those that are currently lacking.
Thus, the research will focus on elaboration of possible alternatives for a transformed Presidency and its involvement in “cross-cutting” policies (such as: European integration and human development). The research will be based on comparative analysis and an assessment of the influence of a tendency for further strengthening of the PM/Cabinet and weakening of Presidency in Serbia.
Chapter 1: The political and administrative context of the executive in Serbia
The current Serbian executive derives from two specific institutional frameworks. On one hand it builds upon the tradition of former Yugoslav administration which is still present in almost all states that came out of the disintegration process. This tradition is based on certain separation of powers and central-European bureaucracy, although wrapped into a shell of peculiar communist regime of former Yugoslavia. On the other hand what exists now was strongly influenced by autocratic and centralistic governance and the political turmoil of the 1990s. Those two factors brought up an institutional set up which is rather contradictory and often characterized by discrepancy between the official framework and the everyday practices.
In the former Yugoslavia the actual executive power was located in hands of the Presidency and the General Secretary of the Government (at the same time General Secretary of Communist Party). However, with the constitutional reform in early 1990s in Serbia with Slobodan Milosevic taking all of the power and controlling all of the branches of government the actual separation of powers practically ceased to exist. He, as the President of Serbia, became alpha and omega of the whole political and policy process. Through the mechanisms placed inside the Socialist Party and through his personal direct involvement in daily government of public affairs, he brought about a situation where the institutions of both the central executive and the Presidency served a purpose of merely legalizing his own actions.
Hence, the style of governing of Mr. Milosevic did not require relying onto the Presidency as institution supposed to provide strategic and operational support to the President. The institution of the President as such remained weak and under-capacitated despite the fact that the President was in many ways the center of public governance. In that sense, the distinction between the President and the Government (Council of Ministers / the Cabinet) remained vague.
Upon departure of Milosevic and the so-called revolution in 2000, the new ruling coalition found itself in institutional havoc with the formal constitutional and legal framework being quite different from the everyday practice. Once the Socialist Party was not anymore in power, the overall institutional set up was to a great extent disintegrated. The power mechanisms that were at the centre of the Socialist Party / Milosevic disappeared leaving empty institutional shells[6]. The capacity that would keep the institutions running was mostly not there. Moreover, the new democratic Government[7] had to tasks: a) to finalize the disintegration of institutions and b) to build up new institutions. The first task was based on assumption that remaining institutions would not be able to operate without the leadership of Socialist Party and that they anyhow have never been based on principles of democratic governance. The second task was mainly a consequence of the need to ensure administrative capacity for implementation of reforms and management of transition.
To date, the consolidation of a new constitutional framework remains unfinished. The constitution designed by Milosevic is still being enforced and the whole legal system stems from it. Because it was designed for very different political circumstances it is strongly inhibiting progress in political and institutional reforms in Serbia. The roles within the executive branch and the interaction between the Government and the President remain vague and often conflicting. In this paper I would like to focus on this interaction with the special reference to the Presidency and its potential contribution to further institutional reforms and democratization in Serbia.
As already mentioned, Milosevic impersonalized the Presidency. His successor was Mr. Milutinovic who was not an active President given that he was merely taking care of decision made by Milosevic - the new President of FR Yugoslavia. After the departure of Milutinovic and Milosevic the position of the President became vacant. In the course of long period presidential elections were repeatedly unsuccessful, meaning that the role of the President was assumed by the Speaker of Parliament. Consequently, the Speaker was performing only procedural role in approving laws adopted by the Parliament as well as in occasional meetings with foreign delegations. In other words, the Presidency was “frozen” in the state of affairs of late 1990s. As for the Presidency, only an uncoordinated group of technical bureaucrats that was not quite sure about its role in the new political establishment remained.
Finally, Mr. Boris Tadić, Serbia’s first non-communist president was elected in June 2004. During his campaign he set as the main goal to play a very active role in accelerating the process of Euro-Atlantic integration as well as in furthering the process of transition. Given the circumstances, that goal might prove to be unrealistic, but at least Serbia got a person that would try to re-establish the Presidency. In the new situation nobody could disregard the Presidency anymore – yet, the democratic capacity legitimatized in direct/popular presidential elections soon faced the challenge of institutionalization of the new role of the President. It was the first time that the public (and the Government) actually start asking the question: what should be the function of the President that is first democratically elected President after 60 years? When Milosevic assumed that function, it was not the institution, but he that mattered. Now, the situation is quite different.
There were many who promoted the idea that in modern European democracy there is no need for directly elected President and that its role should remain ceremonial. With the strong movement in Europe for strengthening of the central executive (i.e. Council of Ministers and in particular the Prime minister) there were not many comparative cases that could justify the need for an active engagement of President in state policy and governing. Nevertheless,, Mr. Tadic tried to provide a counterargument, although in many ways that ended up being “shooting in the dark”. There was neither previous practice nor relevant role models in other regional countries. The overall development policy and the technical advice coming from the international community were, anyway, disregarding the role of Presidency and were unsupportive of its eventual strengthening.
To make the situation even more complicated, Mr. Tadic remained as chairperson of the key opposition party that left the Government just few months before the presidential elections. Hence, he assumed the party leadership position shortly after the Democratic Party lost power, became disintegrated into couple of streams and was further weakened with internal struggles for representation of the strategic direction set by late Zoran Djindjic. Those circumstances put Mr. Tadic in a situation when he was supposed to strengthen his engagement in the party while running for and taking over the Presidency of Serbia. Therefore, not only that the attempt to shed more light into a new, progressive role of the President was hindered by the heritage and the lack of institutional clarity, but his partisan involvement posed even more challenges in setting boundaries between party politics and impartial popular representation.
From the practical point of view, the new President inherited unfunctional organization that was idle for more then a decade and the only institutional memory it had was related to either the autocratic rule of Milosevic or the late communist period. To make the things even more complex, the President expressed commitment to play a role more active than the one expected by the ruling coalition. Yet, he insisted on the intention to deliver the commitments from his political campaign and make the President more relevant, more influential and more active in the overall process of political and institutional reforms with the particular focus on economic development and Euro-Atlantic integration.
After a few initial clashes with the Government, the President gave initiative to try to work out a “co-habitation”. The proclaimed “co-habitation” had mixed success, and the lack of clear role of the President in broader state policy soon became a cornerstone of political conflicts. At two occasions the President refused to approve the laws adopted by the Parliament either due to irregularities in the procedure[8] or due to an eventual conflict between the law and the constitution[9]. Moreover, the President appeared to clash with the Government in the variety of areas: economic development, Kosovo elections and independence, ICTY, European integration, etc. In all cases, he expressed willingness (and actually made concrete steps) in developing alternative policies which were not necessarily aligned with the ones of the Government.
So, what is said in the constitution on the role of President and the interdependence between the two roles within the executive branch: the President and the Government? Not much. In the first place it was not necessary at the time when the current constitution was proposed since Milosevic did not feel a need to formally strengthen/clarify his institutional position. Beside the representative and ceremonial competencies and the ones related to defense[10], the President declares laws adopted by Parliament binding and active (- approves them). In some other context, the role of the President could be left to a subtle system of checks and balances and specific political practice. However, in Serbia, the political system is still very fragile and every single inconsistence in the institutional set up is used for inducing conflict rather then facilitating productive cooperation.
This paper focuses on the issues of accountability, professionalism, transparency and legitimacy of the policy process and an eventual future role of the President. My assumption is that the existing institutional set up is not capacitated for internalizing key principles of democratic governance and progressive public administration. The current central-level public administration is not sufficiently open for public dialogue and interaction with the civil society. A more sophisticated system of professional standards of conduct and clear separation between politics, policy and administration are lacking. The transparency is limited to one-way communication through web sites and occasional public workshops. The shortcomings of the political system do not ensure legitimacy beyond procedural / electoral democracy.
If we assume that a piece of legislation is drafted in a particular ministry without involvement of external stakeholders, that the the coalition government has more or less stable majority in the Parliament and that the President does not have the capacity for policy review – we end up in a situation where any policy would somehow get through and become legal (but not necessarily legitimate). As the matter a fact, the situation in 2005 was not so different from the mid -1990s when Milosevic was able to legalize most of his actions. Moreover, the pressure from the European Union to enact a great number of legislation in a short period contributes to policy making and law-drafting which lacks public scrutiny, quality and, eventually, end up poorly implemented.
The usual approach in other transition countries was an attempt to “open-up” the policy making process to broader public and strengthen the policy review role of parliamentarian committees. Yet, the potential role of the Presidency was mostly underutilized. My hypothesis is that the Presidency has a very important potential place in the policy process and the overall governance that could eventually contribute to further democratization and strengthening of institutional capacity of the overall Serbian executive.
Chapter 2: The institution of President in Serbia
Formally speaking, the President of the Republic, as prеscribed in the Constitution of the Republic of Serbia, has the following formal competence:
- Proposes a candidate for Prime Minister to the National Assembly, having heard the opinion of a majority of representatives in the National Assembly;
- Proposes candidates for president and other members of the Constitutional Court to the National Assembly;
- Declares binding and active the laws by decrees;
- Performs duties in the field of relations with other states and international organizations in accordance with the law;
- Act as Commander-in-Chief of military forces in peace and wartime, orders mobilization, organizes preparations for defence in accordance with law;
- When the National Assembly is not in a position to meet, having received the opinion of the Prime Minister, the President declares the state of war;
- During the state of war, upon the President’s own initiative or the initiative of the Government, the President delivers legally binding acts that are, normally in the competence of the National Assembly, which the National Assembly has to ratify as soon as it is in position to meet; the President can restrict some basic human rights and freedoms and change the organisation, composition and competencies of the Government, ministries, courts of law and public prosecutors’ offices in line with the legal acts passed during the state of war;
- Acting on the proposal of the Government, when there is a threat to the security of the Republic or the Serbia citizens’ basic human rights and freedoms are in danger, the President declares the state of emergency and delivers the necessary legally binding acts in accordance with Constitution and law;
- Grants official amnesties;
- Awards decorations and recognitions as regulated by the law;
- Establishes professional and other services for performing duties in the competence of the President of Serbia;
- Performs other Constitutional duties.
The President operationalized his competencies through two bodies directly accountable to him: the General Secretariat and the People’s Office. Both of those bodies are still in the process of re-establishment. The General Secretariat is an inherited organization that is supposed to provide quite different support then in the 1990s, while the People’s Office is new, innovative organization still going through its institutional maturity. In other words, the President is supported by one out-dated and one start-up organization – both of which act in a institutional vacuum[11]. Furthermore, the President is also chairing the party which is the main competitor to the ruling coalition. Finally, a rather ambitious goal that he put forward in the early stage increased the public expectation of his performance.