ANALYSIS The current covid-19 pandemic, as ‘an hour of the executive’, offers an DEMOCRACY AND HUMAN RIGHTS unprecedented opportunity to elected incumbents for a power grab and erosion of DEMOCRACY checks and balances. AND THE STATE We have been witnessing a curtailing of civil and political rights on a massive scale, which is unprecedented in OF EMERGENCY peacetime, accompanied by the adoption of new laws and measures that vested extra Functioning of Institutions in Times of Crisis powers in the executive. Dr. Simonida Kacarska, Dr. Filip Milacic January 2021 There remains the danger that the COVID-19 crisis will make the already fragile democracies in Southeast Euro pe even less resilient and more susceptible to execu tive takeovers. DEMOCRACY AND HUMAN RIGHTS DEMOCRACY AND THE STATE OF EMERGENCY Functioning of Institutions in Times of Crisis U saradnji sa: Contents INTRODUCTION 2 ALBANIA 2 BOSNIA AND HERZEGOVINA 3 CROATIA 4 KOSOVO 5 MONTENEGRO 5 NORTH MACEDONIA 6 SERBIA 7 SLOVENIA 8 CONCLUSION 9 1 FRIEDRICH-EBERT-STIFTUNG – DEMOCRACY AND THE STATE OF EMERGENCY INTRODUCTION What are the repercussions of the COVID-19 pandemic for the against the virus. Yet the fear persists that some of these democratic development of the countries of Southeast Europe? measures are not just based on epidemiological necessity, It is fairly accurate to say that many elements of their respective but also follow an authoritarian agenda thereby often ignor- democratic systems have been affected by the pandemic: from ing checks and balances in the name of executive power. the elections and political and civil liberties to the functioning of What is more, even an existential threat, such as COVID-19, institutions (system of checks and balances). The focus of our has not been able to alleviate polarization in Southeast Euro- study is on the last of these as we believe that this is the area pean societies. Many of the countries under investigation where democracies are especially vulnerable. have been plagued by a toxic polarization that hampers the proper functioning of the checks and balances, causes grid- In their bestselling book ‘How Democracies Die’, Steven Lev- locks, undermines the commitment of political actors to itsky and Daniel Ziblatt1 have argued that since the 1970s democratic norms and values, and increases the willingness democracies have only rarely disappeared through armed of citizens to tolerate democracy-eroding measures. In other coups, but much more often have eroded and died slow words, in such a situation, elected incumbents are able to deaths, confirmed by empirical data. As Milan Svolik pointed invoke executive powers and seize a great deal of authority out, after the 1990s executive takeovers – subversion of de- with scant resistance. mocracy by democratically elected incumbents - surged, and “they have accounted for four out of every five democratic All this being the case, there remains the danger that the breakdowns since the 2000s”.2 The current COVID-19 pan- COVID-19 crisis will make the already fragile democracies of demic, as ‘the hour of the executive’, offers an unprecedent- the region even less resilient and more susceptible to execu- ed opportunity to elected incumbents for a power grab and tive takeovers (according to the latest Bertelsmann Transfor- the erosion of checks and balances, i.e., for undermining the mation Index (BTI), only Slovenia and Croatia are classified as key tenets of democracy, which Svolik labeled as an execu- consolidated democracies whereby Croatia, with a grading tive takeover. The danger is particularly great in democracies of 8.15, borders the status of defective democracy - desig- with weak safeguards such as those of this region. nated below the grade 83). In this sense, it is of the utmost importance that incumbents relinquish power commensu- Corona as an opportunity for rate with the decrease in danger of the pandemic. One should not forget that executive takeovers or, in the words of an executive takeover Nancy Bermeo, executive aggrandizement4 occur through legal channels and follow a constitutional path. We have been witnessing in them a curtailing of civil and political rights on a massive scale, unprecedented in peace- ALBANIA time, accompanied by the adoption of new laws and meas- ures that vested extra powers in the executive. Such an accu- Albania is among those countries that reacted to the COV- mulation of power in the hands of the executive has ID-19 pandemic outbreak by introducing a State of Emergen- contributed to the further weakening of parliaments, which cy (in Albania defined as a State of Natural Disaster) which already had a subordinated role in the relationship with the included severe restrictions on key political and civil rights. executive branch, as well as to the further marginalization of They affected freedom of assembly and movement, with the opposition. curfews both on weekdays and at weekends that were quite extreme and included one hour per day of movement for one Extraordinary times call for extraordinary measures and many family member alone. In order to ensure these measures of the adopted measures are surely necessary for the fight were respected, amendments to the Penal Code were adopt- 1 Levitsky, S., and D. Ziblatt. 2018. How Democracies Die. Crown: New 3 BTI. 2020. Political Transformation. Available at: https://www. York. bti-project.org/de/home.html?&d=D&cb=00000 2 Svolik, M. 2019. Polarization vs. Democracy. Journal of Democracy 4 Bermeo, N. 2016. On Democratic Backsliding. Journal of Democracy 30 (3): 20–32. 27(1), 5-19. 2 FRIEDRICH-EBERT-STIFTUNG – DEMOCRACY AND THE STATE OF EMERGENCY ed enabling the police to arrest those who violated the meas- BOSNIA AND HERZEGOVINA ures and including punishments of up to 15 years in prison.5 Hence, the Albanian government ‘relied’ much more on the The COVID-19 pandemic challenged the already complex effect of strict sanctions to ensure citizens’ compliance than system of executive power in Bosnia and Herzegovina. Coor- on their awareness of the situation, and even deployed the dination at all levels of government was difficult, as the crisis military for this purpose. management bodies in the Federation and Republika Srpska acted in their respective jurisdictions, resulting in distinct de- The fact that at the moment of the COVID-19 pandemic out- cisions and actions.7 break Albania was in the midst of a deep political and institu- tional crisis did not help its democracy to efficiently deal with Given that the BiH constitution does not provide for a State the pandemic. For more than a year, the parliament worked of Emergency at the state level, a State of Natural Disaster without the opposition since its MPs had resigned. A cocktail was declared at state level, while sub-state units adopted of opposition boycott of parliament, a passive Constitutional their own decisions, which included: a State of Emergency in Court, and media that predominately reported in favour of Republika Srpska, and a State of Natural Disaster in the Fed- the government additionally facilitated the empowerment of eration of BiH and Brcko District. During the State of Emer- the executive (amid disputes between the ruling majority and gency and/or Natural Disaster the executive authorities as key President Ilir Meta, the executive, however, did not act in power holders in the pandemic issued numerous legislative unison). The government was accused of politically exploiting acts on a daily basis.8 Some of them, as shown later, have the situation created by the pandemic, while Prime Minister been significantly contested as overstepping the rights of cit- Edi Rama was accused of using the pandemic for the person- izens, both by the constitutional court as well as independent alization of power, which he denied. The executive’s frequent CSOs and the media. use of normative acts to amend legislation thereby circum- venting the regular parliamentary procedures is most certain- Oversight function in this period in most parliaments in the ly worrying. SEE region, including Bosnia-Herzegovina was limited in its response to the COVID-19 crisis.9 The state-level parliament The pandemic aggravated suspended its sessions from March to May 2020 due to the COVID-19 pandemic; the Federation entity introduced rules deep polarization of procedure for online sessions, which was a novelty in the region. In Republika Srpska, on 28 March the parliament de- Even though the role of the opposition in a democratic sys- clared a State of Emergency, suspending parliamentary activ- tem is to criticize the government and offer an alternative, it ity and entrusting the entity president with the power to is- seems that the Albanian opposition was merely waiting for sue decrees with the force of law in matters of entity an opportunity to launch attacks on the government. The competence.10 main opposition parties called upon the public to disregard the measures as unconstitutional and to ‘take back their The parliamentary dynamics of the parliaments in Bosnia and rights’. 6 The pandemic therefore only aggravated one of the Herzegovina were not significantly affected by the COVID-19 key problems of Albanian democracy – a deep polarization crisis. Although debate in parliament has been assessed as between two blocks who question each other’s legitimacy to intensive, it did not compensate for the inherited weakness govern, a pattern that remains rooted in the Albanian politi- of the legislative government.11 Parliamentary opposition re- cal system. mained weak, while members of parliament from the ruling political parties usually rubber-stamped the proposed poli- It must also be emphasized that civil society in Albania was cies and measures of the government. After a significant de- very active and demonstrated its vitality. In spite of the re- lay, parliament did manage to adopt a budget proposal for striction on public gatherings, protests were organized in the Bosnia and Herzegovina institutions in mid-July.