The Risk from Ambiguities

Following the reaching of the agreement for establishing of the Association/Community of Serb Majority Municipalities (A/CSMM), a very contradictory debate has been ongoing in the two respective countries by the political, institutional and civil society actors. In this aspect, I consider it useful to offer to this debate a contribution from my perspective.

Initially, I need to explain that A/CSMM will have a similar frame to that of the Association of Kosovo Municipalities (AKM), except for the fact that the first one (A/CSMM) is recognized for its special feature, obliging the Kosovo Government to adopt a directly implementable decree which will be reviewed by the Constitutional Court. So, as it is said in the agreement the Association shall be a legal entity defined by its own statute and in which the rights and obligations are expected to be defined in the statute. To be more clear, in case there are any ambiguities left, then this could be the source of the problems. Also, the name Association itself with adding the word Community, aims to differ the purpose, to be more specific, to the institutional structuring of the Serb ethnic community. Having in mind these elements, the debate whether the A/CSMM is an NGO or not, turns this debate into a total failure.

In relation to the formal structuring, one has to say that A/MSPC does not disrupt the two-level governance, but in one form or the other it is an intermediate “above-municipal” structure. So, despite that in the agreement there is no explicit provision or item about executive competencies, article four of the agreement which describes the functions and the public services is the ‘game’ with words, because in this item the expression executive competencies has been ‘smuggled’ with expression ‘provision of public functions and services’ which to some extent is the same thing.

Also, the agreement foresees for an administration which will function based on the Labor Law and the Civil Service Law, where there is no definition of their competencies, the institutional positioning and the structure itself. In this aspect and in a wider sense, the civil servants are the executive part of the state, entity of legal principles and obligatory regulations stemming from their specific placement in the hierarchy of the state. In case the administration of A/CSMM functions within the civil service, then a right for an administrative functioning should be recognized to them, which in this case belongs to the executive authority.

With this agreement A/CSMM in particular supervision is granted in several very important fields, such as: education, primary and secondary healthcare, social matters, urban and rural planning. Beside this, with the A/CSMM the aim is to have an ‘umbrella’ for the Serb majority municipalities which shall serve as a communication bridge with the central institutions of Kosovo and those of Serbia, in the aspect of policies, decision-making and financing. So, this mechanism through its political power given by the elected representatives, in this case the mayors and the municipal councilors from the member municipalities may turn into a main political institution and decision-making body for Serbs.

Regardless all this, one has to say that De Jure, the Association does not Bosnify Kosovo, because the Republika Srpska is a product of the constitutional regulation, whereas A/CSMM is a product of Kosovar legislation, and both of them are distinguishable. Bosnia according to the Dayton Peace Accord was established based on the model of two entities and the constitution of the country. But, the risk that appears here is from the ambiguities and the inaccuracy in relation to precise definition of the competencies and the responsibilities between the Association and the municipalities. So, with the establishing of the Association, the biggest part of the work that is to be done is the precise clarification of the functional and administrative aspects, as well as the accurate clarification of competencies of the municipalities and of the association.

Starting from the ambiguity of the agreement (from the first one before 2013) the parameters of possible deregulation of the governance system exist for sure. The drafting of the statute shall be very complex and accompanied with tensions. The representatives of the municipalities with majority Serb population are now celebrating the reaching of this agreement, believing that this will create conditions for autonomy, and they will start from this aim. No matter how careful we may be with the drafting of the Statute, our delegation unfortunately did not notice or perhaps had no power to neutralize the most problematic provision of the Agreement, that is, the possibility for the association to amend and change the Statute, immediately after its first adoption. We need to be careful here because as I said it earlier, the biggest risk comes from the drafting of the Statute, because it is then that the functioning, powers and strengthening of the second authority in Kosovo are regulated.