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The Initiative to Withdraw the Government’s Draft Bylaw Which Restricts Research in the Field of Defense

Chapter 23

The Initiative to Withdraw the Government’s Draft Bylaw Which Restricts Research in the Field of Defense

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National Convention on the European Union (NKEU) and the undersigned representatives of the academia and the civil society urge the Ministry of Defense of the Republic of Serbia to withdraw the draft Bylaw on scientific and other research relevant for national defense and on the procedure and conditions for issuing permits for carrying out such research together with foreign entities or contracted by foreign entities (hereinafter: the Draft Bylaw, see the attachment, in Serbian). This Draft Bylaw violates the Constitution, restricts almost all the research in Serbia, considerably hinders the work of business entities, and endangers the democratic control of the security sector, as well as the international scientific and research cooperation.

The Draft Bylaw infringes the freedom and the autonomy of research that is necessary for monitoring the progress of the EU accession negotiations, and for which the organizations gathered in the National Convention on the EU are mandated under the Serbian Government’s procedures on the negotiations. A critical review of the reforms in these areas is a prerequisite for planning further reforms, on the basis of evidences collected by the independent actors such as NKEU and other stakeholders that support the reforms in the interest of citizens. Moreover, the Draft Bylaw threatens the independent research in the area of security studies that is a prerequisite for democratic control of the security institutions.

In addition to being in violation of the Constitution and laws of the Republic of Serbia, the Draft Bylaw is contrary to the strategic commitment to the EU accession and to the advancement of international security through cooperation with other stakeholders, such as the academic community, civil society and other domestic and foreign state institutions.

National Convention on the EU urges faculties, scientific institutes, businesses and business associations, the media, civil society organizations and all interested researchers to support and sign this initiative. To sign the initiative, as well as to coordinate with us the work on this important matter, please contact us at: eukonvent@emins.org or by telephone: +381 11 3640 174.

Why is the Draft of the old/new Bylaw controversial?

First, the research relevant for national defense is defined too broadly, which opens the possibility to define virtually all research as related to defense. Namely, the list of research areas that are defined as relevant for national defense includes (Article 2, Paragraph 2, Items 1-8):

  1. All sorts of research in the field of defense
  2. Geographical and environmental research
  3. Research in the area of water management and energy
  4. Regional and urban planning
  5. Transport and electronic communications
  6. Nuclear energy
  7. Biology
  8. Social sciences – including public opinion research on socio-political and economic issues; research of: socioeconomic issues, socioeconomic status of the various parts of the population, international relations, position of religious communities and the relations between the church and the state; research of ethnic, social, political and criminological problems of certain populations and regions in Serbia.

This list of research areas originates in the Bylaw with the same title from the time of Milošević’s rule and the international isolation of Serbia (1994), and extends far beyond the legitimate restrictions to research proscribed by laws in other democratic countries. In democratic states, reasonable restrictions to research in the field of defense are limited to the research in the geographical proximity of the locations important for national defense (e.g. military facilities and critical infrastructure). Such restrictions apply equally to research financed from domestic and foreign sources, which is not the case in the Draft Bylaw in question.

Second, the security sector institutions in Serbia have already been entitled under the Law on Classified Information (Official Gazette of RS, No.104/2009) to restrict the access to objects, people and information whose disclosure could endanger national security. Therefore, it is not clear why it is necessary to restrict the freedom of research based on publicly available data and public opinion research, nor in what way such research would endanger national defense. It is necessary to improve the existing legal framework by adopting the Law on the Protection of Critical Infrastructure, which would provide a definition of the objects and systems that are critical for national security and regulate their protection. This is, at the same time, the obligation under the Action Plan for Chapter 24 (Justice, Freedom and Security).

Third, the Draft Bylaw subordinates other state institutions and legal entities to the Ministry of Defense, by giving the Ministry the mandate to assess the legitimacy and the need for research in the areas for which it is not primarily responsible, nor has the expertise (such as urban planning, water management, transport, energy, agriculture, etc.). Hence, it is not surprising that other Ministries and state institutions had negative opinion on the Draft Bylaw, however, their amendments have not been adopted. Finally, the Draft Bylaw introduces unnecessary restrictions of independent studies of security and defense, which are a prerequisite for democratic control of the security sector, including the sector of defense.

What would be the implications if the Draft Bylaw is adopted and implemented?

Consistent application of the Bylaw would endanger the whole range of constitutionally guaranteed rights:

  • Freedom of scientific and artistic creativity (Art.73)
  • Autonomy of university (Art. 72)
  • Freedom of thought and expression (Art. 46)
  • Right to information (Art. 51)
  • Freedom of association (Art. 55)
  • Freedom of entrepreneurship (Art.83)
  • Equal legal status on the market (Art. 84)

The Draft Bylaw is also contrary to the constitutional standards set out in Article 20, which guarantees that the achieved level of human rights cannot be reduced.

In addition to the violations of the rights, it is extremely important to note that the application of this Bylaw would prevent, or at least substantially impede, international scientific and research cooperation of universities, scientific institutes, state institutions and civil society organizations from Serbia, which is financed from foreign funds. For example, the Draft Bylaw establishes the obligation of all stakeholders to submit to the Ministry of Defense the public opinion surveys questionnaires (prior to conducting the survey) for research that will be potentially financed from abroad, e.g. through academic research programs of the EU – “Horizon 2020″. This is not in accordance with the principles of Chapter 25 – Science and Research that aims at the creation of a single European research area in which researchers, as well as scientific and technological knowledge circulate freely.

Instead of the pre-set restrictions, the Government should devise ways to enhance domestic funding for research, through increasing the budget for science, and through a transparent competition for resources intended for civil society organizations from the budget line 481. In addition, defining of priority areas to improve the national security and defense is possible only on the basis of high-quality, timely and professional research, in which the broadest spectrum of stakeholders from academia, civil society and the business sector can participate.

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