Pravni Zapisi (Jan 2015)
What would chief justice Coke say?: On legal remedies in case of infrigments by the highest bodies of the Republic of Serbia
Abstract
The article is a hypotetical analysis of possibilities for legal control of an act of the National Assembly of the Republic of Serbia, more concretely, the act on election of a bearer of a public function. In order to answer the question of available legal remedies for the control of the concrete act, the author first analysed the character of the act and came to the conclusion that this is an individual legal act, and more precisely an individual administrative act, which could be controlled within the administrative dispute procedure. Since, in the circumstances of the concrete case, the circle of persons with possible standing in the administrative dispute is very narrow, the author also inquired into the possibilities of control before the Constitutional Court, i.e. could citizens turn to the Constitutional Court when they believe that the highest state authorities have breached the very principle of the rule of law. It is important for the rule of law that a legal remedy exists and that it is feasible in practice. In the case at issue, possible legal remedies have been analysed, as well as the circle of subjects who could make use of these remedies. For the identification of legal remedies, it was first necessary to determine which kind of an act was passed. Analysis of domestic legislation and available case law of ordinary courts and the Constitutional Court basically pointed towards a single legal remedy which could have brought to the review of the concrete act of the National Assembly - a claim in the administrative dispute, which in this case, could have been brought only by the competent public prosecutor. The text does not delve into a serious analysis of the effectiveness of this legal remedy and remains on the finding that the circle of persons with standing to institute an administrative dispute is extremely limited. On the other hand, constitutional provisions, as well as available Constitutional Court case law did not present enough foundation for the possibility for every citizen to address the Constitutional Court for protection of the so-called right to the rule of law. To be honest, applicable examples were not identified in comparative case law, either. In all jurisdictions there are issues which escape judicial control (such as the so-called political issues or political questions), but there are some criteria for that, mostly developed in case law of highest or constitutional courts. However, in these cases, there is no place for violation of provisions of ordinary legislation, since it could be said that that would undermine the faith in basic legal security as well as the foundations of the very idea of the rule of law.
