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NO 99-100

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INFO   :::  Helsinki Charter - PAGE 2 > Helsinki Charter No. 99-100 > Text


Helsinki Charter No. 99-100

September - October 2006



By Radivoj Stepanov


N o t e

All the criticism below, voiced "one minute after midnight," do not exactly dissect Serbia's new constitution. It's just a reflection of the suppressed civil society's anguish at the regime's cheap tricks and the "vampire" constitution imposed on it. It's a lament over a definitely failed project of a civil and modern Serbia, over a unique but missed constitutional opportunity that showed up "way back" in 2000, 2001, 2002 or 2003 and would not show up in foreseeable future.

And, as W. Shakespeare says, "Let the stricken deer go weep, the hart ungalled play." As we discuss in distress, the caravan goes and the plotting coalition of constitution-makers (the DSS-DS-SRS/SPS trinity) rubs its hands at the naivety of masses/citizens.

But there's more to it. We are now expected to swallow a big lie and believe that every constitutional provision has stood for what it was meant to stand for, outplayed "the other side," that "everyone, everyone, everyone" got what he wanted, that the sun will finally shine on Serbia and that even Vojvodina could have gone a lot farther, and fared a lot worse.

Psychologically, I perceive this referendum shock as the time of mourning, the funeral of the "enlightened" Serbia's sky-high aspirations. And yet, Serbia remains where she has always been - trapped by her mythic past, her bygone heroes of lost battles and her brand new criminals ridding, like heroes on white horse, from recent ethnic cleansings and plunders. Serbia's head swirls with the harmony of her patriots, who have coined a constitution overnight and are now misguiding people and playing, at literary evenings, the same, worn out stringed instruments.

In the meantime, Montenegro walks in its seven league boots and gets further and further away from Serbia. Everyone moves forward, everyone looks for some better company. Only Serbia can be by herself and belong to nowhere. Only we cannot live without Kosovo as we "have been born and will die with the awareness that Kosovo has always been and will always be a part of Serbia," as Premier Kostunica put it.

In this text I'll scrutinize the new Constitution from two angles: general and specific. (And I'll never take a look at it again! I've exhausted my criticism on the 1990 Constitution and would not partake in the same scenario after 16 years.)


General critical remarks:

1. \"Kostunica's Constitution" of 2006 (all our constitutions are named either after rulers, religious holidays or secret place where they have been drafted) is identical to Milosevic's Constitution of 1990. Structure, language, legal logic and mindset behind them, institutions, division of power, and everything else are the same. (In terms of profession, the 1990 Constitution is better, which anyway makes no difference now.) Actually, the 2006 Constitution is the Radicals' redesign of the 1990 Constitution. The 2006 Constitution attempts to finalize the idea of creating the Serbian nation state the 1990 Constitution has launched by a schizophrenic scenario.

The new Constitution of Serbia is a product of a political "partnership" between the Democratic Party of Serbia (DSS), the Serbian Radical Party/the Socialist Party of Serbia (SRS/SPS) and the Democratic Party! Those nationally "dovish" and "hawkish" parties base their vision of a "new" constitution on the nation's political past, on restoration of Milosevic's political and legal institutions, on elimination of the principle the civil society and civil values, and on blocking the process of association with the community of European nations.

2. The emphatically pietistic preamble that follows the 19th century doctrine of "blood and soil" proclaims, in its epical and populist variant, that Kosovo has always been and will always be "an integral part of Serbia" against the reality that is quite the opposite. Furthermore, the preamble clearly underlines the duty of "all state institutions to represent and protect Serbia's interests in Kosovo." All this is nothing but a dangerous legal and international precedent! With so phrased preamble Serbia declares worldwide a constitutional, political and Eastern Orthodox "jihad" for Kosovo. By the same logic, she may, this day or another, declare jihad for the territories that Hungarians, Rumanians or Bosnians have "snatched" from her, for her Karlobag-Virovitica-Ogulin borderline, for what Macedonians have taken away from her, for what she has been robbed of by her Montenegrin "brothers," etc. Instead of "constitutional patriotism" we got a fundamentalist, Balkan/Serb variant of embittered "constitutional nationalism" with potentially disastrous effects.

3. No constitution would leave the questions of "horizontal" and "territorial" or "vertical" organization of power open. And that's exactly what this Constitution did! Namely, the issue of territorial organization is undefined, blurred or at least "open." This is particularly evident when it comes to autonomy. Here the Constitution produces a confusion of three forms of autonomy.

What are those three forms?

Firstly, inessential autonomy; Secondly, essential autonomy; and, Thirdly, supra-essential autonomy (\"from autonomy to independence").

Inessential (limited, restricted, "autonomy under custody") autonomy is planned for Vojvodina, the type of autonomy Vojvodina does not want for itself;

Essential autonomy is designed for Kosovo, and Kosovo would not accept such autonomy;

Supra-essential autonomy (or \"future independence\") stands for the actual state of affairs in Kosovo, the Serbian regime turns a blind eye to.

Why Kosovo gets more autonomy, while Vojvodina less? Is that because, as someone said, the world belongs to those who protest rather than to those who keep silent and toil?

Without a rational, realistic and, say, futuristic perception of autonomy and territorial organization, the Constitution and incumbent Serbian authorities face unsolvable logical difficulties that can sooner or later hit people and citizens hardest.


Specific critical remarks

1. Article 1 of the Constitution: \"Serbia is the state of the Serbian people and all citizens." The Constitution thus lays down a "native" state and recognizes the "native" people as the first-rate people, while the "others" are supplementary or second-rate. The native people are Serbs, whereas citizens are people without a homeland, "the others," "the rest," people who belong nowhere, actually they are - superfluous.

Modern European constitutions have no provisions as such be they proclaimed by centralistic, federal, one-nation or multiethnic states. Such provisions are non-existent in the Constitution of Denmark (even in Hamlet's era when something was "rotten in the state of Denmark"), in the Constitution of Macedonia, in the Constitution of Slovenia, in the constitutions of Belgium, Italy or Russia (we keep invoking) - the preamble of the latter's constitution opens with a multiethnic tirade, "We, the multiethnic people of the Russian Federation, joined by shared destiny in the country of our own, recognizing the rights and freedoms of men, civil peace and harmony."

As for Serbia, citizens no longer live here. The Constitution has cleansed Serbia from citizens. True, you'll not find that in black and white. But why not be the first to put that into practice? Haven't we mastered cleansing in the so-called ethnic issue?

The fact that Serbs are given the upper hand over other peoples living in Serbia - and each of them is older than this Serbian state - violates the universal principle of equality and people's right to self-determination, and undermines Serbia's democratic foundations.

2. The domain of human and minority rights and freedoms in this Constitution is considerably reduced by comparison with the Charter of Human and Minority Rights and Freedoms (2003). The same indifference to those fundamental values marked the 1990 Constitution. In the model constitution put forth by Forum Iuris, human rights were systematized by the means of constitutional enforcement, a catalogue of human rights and their direct protection.

Though more "generous" than Milosevic's when it comes to human rights, this new Constitution omits the right to gender protection, the right to cloning and the right to humane euthanasia.

The right to gender protection could have guaranteed that Serbs shall be protected from the vulgar influence of multi-ethnicity and deadly activity of non-Eastern Orthodox religions. A modern constitution should have given Serbs a chance to be cloned (bearing in mind the low birthrate) by the very image of their today's leader and at the state's expense. Finally, in Serbia where we are being born and willy-nilly living with the awareness that Kosovo belongs to us, but hardly live a comfortable life, couldn't we at least "comfortably depart," i.e. die humanely?

3. The (Radicals') provision quoting that in Serbia "the Serbian language and the Cyrillic alphabet shall be in official use" (Article 10) follows the logic "Speak Serbian and write in Cyrillic alphabet so that the whole world understands you." It's neither wise, noble nor patriotic to speak some other language and write in some other alphabet. Probably linguistic and alphabetic monism is our secret weapon for joining European culture and civilization.

4. The right to safeguard specificity (Article 79) is nothing but a superfluous provision - it says nothing and will be calling for interpretation. Political hermeneutics will be arbitrarily interpreting this article that could have been summarized as the right to ethnic/national identity. Consequent respect for the right to safeguard specificity could easily question the Constitution's fragile construct. Therefore, this right will remain a dead letter. Anyway, why give citizens and ethnic groups the right to identity? They could drown it in brandy!

5. In the new Constitution, economic system and public finances mix an ownership cocktail but financial flows are far from the public eye in spite of all privatization and re-privatization. Clandestine financial flows are safe channels for governmental laundering, corruption and the state-mafia hookup. The well-known question posed in and by Vojvodina, "Where is our money?" is far from being turned outdated.

6. The section dealing with Serbia's competences is identical to that of the 1990 Constitution. That's yet another proof that the two constitutions do not differ in any major way. What the new Constitution provides is the basically the same though somewhat redesigned model.

7. The same horizontal organization of power is laid down in the 1990 Constitution.
The National Assembly has 250 MPs. As it seems, this magic figure taken from Milosevic's constitution is unquestionable.

President of the Republic is elected by direct vote.

The constitutional mechanism of "constructive voting no confidence in government," put forward in the models developed by the Belgrade Center for Human Rights and the Forum Iuris is non-existent.

The Constitution provides something that can be labeled the Assembly's self-dismissal (Article 130, para 4; Article 131, para 4.).

The new Constitution maintained semi-presidential system.

Why such system has been kept when, as it turned out, it was not the best solution for Serbia? Why clear-cut parliamentary solutions for horizontal organization of power have been omitted?

8. According to the new Constitution, MPs are just virtual owners of their mandates. The real owners of their mandates are political parties (Article 102, para 2). Citizens do not vote for their representatives but for political parties. MPs are nothing but guards of mandates engaged on contractual basis. Political parties own MP mandates, legislative and executive powers, and, to all appearances, judicial power. The time of MPs is gone for good, the era of partisan rule or partocracy is emerging.

9. Army is always close to power. The Serbian army got just three modest articles of the Constitution. However, the Constitution sets much store on the army since it will be employed within and beyond Serbia's borders by the Assembly's whims. Instead of taking the opportunity to get rid of the horrible burden called army once for good, instead of following Montenegro's example and dispatch the army to a "museum of bygones," Serbia, even in her new Constitution, hints that the policy of peace will not be pursued over here. "If we don't know how to work, we do know how to fight," are the words Slobodan Milosevic will be remembered by. So, the only god we worship is Mars. (As it seems, Amon ended up in some refrigerator truck.)

10. Politicians overtly lied about the provision regulating the Constitution's amendment. "There are flaws in this Constitution, but they will be easily amended later on," said President Tadic. That's a lie. The procedure for constitutional amendment is as complex as envisaged in the 1990 Constitution (Article 203).

An unfinished state such as Serbia should not lay down so strict procedure for constitutional amendment. That will not make the state stronger. On the contrary, a state governed by strict procedures gradually rots, gets weaker and weaker, and develops a systematic decease that cannot be cured. That's exactly what Serbia goes through. Until she is able to reach a fundamental political consensus, develop a long-term state strategy, attain sustainable economic growth, integrate into the international community pursue active minority policy, etc., Serbia needs not a constitution that is hard to change. The same as you tailor knee-length pants for growing youngsters, you tailor a flexible constitution for "Serbia as an unfinished state" (Z. Djidjic).

11. The provisions on territorial organization are actually penal provisions for the Autonomous Province of Vojvodina.

In Milosevic's constitution the autonomy of Vojvodina was cropped-eared, as an academician once said. The new Constitution will not only make it cropped-eared but also cut its head off. (That's how matters are settled in Serbia a la Seselj.)

Instead of seeing the constitutional opportunity as "gift from the gods," and seizing it invest large authority on Vojvodina and thus rehabilitate the earlier restrictive policy for provinces that has already cost them one (for the time being), Belgrade's centralistic, radical regime repeats the mistakes from the past!

Serbia will pay dearly for it! By defending themselves from the province's alleged statehood, annulling its autonomy, ruthlessly tramping on its acquired rights, and vulgarly ridiculing contemporary processes of global regionalization, this regime and Serbia's rightist opposition are practically forcing/pushing autonomy into statehood.

Thanks to such bad intentions Vojvodina will become a state sooner or later.



Serbia's new Constitution:
- Provides not the rule of law. It just turns nationalistic lawlessness legitimate;
- Provides not mechanisms for adjustment to the EU's legal, political and economic system, and recognizes not the standards of international law;
- Deprives Vojvodina of even a minimal autonomy;
- Encourages not regional policy and Vojvodina's "Danube" integration in accordance with European standards;
- Gives no hint whatsoever of Serbia's association with Europe.
Serbia's new Constitution is a Machiavellian tractate on power! How to stay in power and not let it go!


(Author is the professor at the Faculty of Philosophy in Novi Sad and member of the Forum Iuris expert team that developed a model for Serbia's constitution in 2002)


NO 99-100

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