AUTONOMY BULLIED INTO
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
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
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
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
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
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
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
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
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
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
Thanks to such bad intentions Vojvodina will become a state sooner or
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)