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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 Stanko Pihler

The arrogance the oligarchy of Serbian leading political parties demonstrated in the parliament when adopting the highest legal act in a putschist way did not come as a surprise. For, citizens have realized long ago how readily they would act to humiliate both them and the institution of the Parliament. That's how we got a kind of imposed constitution the adoption of which paid no heed to any democratic and legal principles whatsoever. And that's how we got a constitution the legal contents of which warrant its legitimacy neither.

It's probably enough to say that this constitution cannot guarantee stability and progress of the political community it attempts to constitute for it guarantees not loyalty as a basic postulate of a stable civic society.

The regime opting for such step is too dangerous for our future. It will keep reproducing itself, unwilling to be accountable to citizens, accept the reality, take a rational attitude towards the future, open up key issues of confronting the evils of the recent past and critically reconsider its own mistakes.

Therefore, one should take into account the mental and political ambiance in which this constitution was passed. Such ambiance secures continuity to a traditionalist, illiberal political thought and behavior that have been more and more affirmed, before our eyes, even since 2000. Growing centralism, nationalism, clericalism and even militarism have been easily detectable. A number of provisions of the new Constitution indicate the danger of its being a handy instrument in such processes. And this is about the processes that entrench a society and maintain its autism and uncommunicativeness with the world and modern times. The new Constitution testifies that Serbia still lacks political capacity to modernly articulate the life of people and their communities in this region, i.e. to grasp the complexity and diversity of its self-identity.

The people who have participated, this way or other, in the Constitution's passing call it a product of a consensus. This fact, according to them, should be seen as its virtue. We cannot but wonder what kind of consensus that was. It was a consensus on keeping the power and misusing it, on keeping the control over institutions and political parties, and on controlling "the situation" when even illusions are proclaimed reality.

Others say it was all about a compromise. Someone should tell them that admitting defeat can hardly be labeled a compromise. Strangely enough, both the lawmakers of the 1990 Constitution and those who criticized it at the time speak highly of the new Constitution. The fact is that the sum and substance of the two constitutions is practically the same.

The Constitution is not concerned with an individual as such. The individual is turned important only in his capacity of a manipulated voter and member of the nation, whose patriotic duty is to vote in a referendum. The individual is unimportant as a citizen. Many constitutional provisions are like veils - their true meaning is hidden behind the skipped context. And the value system imbuing such provisions is problematic. First and foremost, the manner in which Serbia is identified in the Constitution's preamble is most telling and politically harmful. Such identification seems to be a millstone round the neck of all future generations and institutions.

The new Constitution is conceptualized on the illusion of the so-called efficient centralism, on fear of anything local or specific, and on erroneous belief that everything beyond the central government's control could be fishy, even dangerous. Such concept is far from the modern idea of regionalization and decentralization, far from the idea that things that can be settled at local level of governance should be settled there. In other words, this concept of governance is far from the principle of subsidiarity. This is more than evident in the way the alleged autonomy is regulated. The Constitution not only degrades but annuls Vojvodina's autonomy. Lawmakers are afraid of autonomy. For them - and judging by the incumbent Premier's recent address to the Serbian Academy of Arts and Sciences, one of the most powerful lobbies of Serbia's disastrous politics in the past 20-odd years - state unity, i.e. "stability" of the state, is the Constitution's crucial legal foundation. Such idea of political community and its highest legal act belongs to the 19th century logic, rather than to that of the 21st century. Lawmakers are people of the past, not of the future. For them, citizens are subjected to the nation-state, rather than subject to the law. The so-called integrative clause was not omitted from the Constitution by chance only.

Key problems this Constitution - the same as 10-odd constitutional drafts brought before public eye - had to solve were the following:
- Definition (identification) of Serbia as a state;
- Concept of human rights and its adjustment to international documents;
- Balance (division) of power; and
- Territorial organization.

Definition of the state of Serbia in the Constitution's preamble has already been extensively discussed.

Though even some critics of the Constitution take that the domain of human rights and freedoms is mostly correctly regulated, many restrictive provisions and problematic phrasing make it open to question. In other words, they turn human rights and freedoms into relative categories. This particularly refers to the provisions dealing with religious rights and freedoms, the army, and the right to give birth, or those introducing moral criteria in the restriction of human rights (as if this society has developed an undisputable and "objective" moral code).

What makes division of power particularly disputable is the relation between the President of the Republic and the government, the status of MPs and their mandates, election of judges, etc.

One cannot but be concerned by the way the Constitution regulates the territorial organization system, especially when it comes to Vojvodina's so-called provincial autonomy. We believed for long that the previous constitution was maximally cynical in this regard, but it turned out that we were wrong. The new one outstripped it. The request that the province should be arranged as autonomy was totally ignored in the constitution-making process. This Constitution deprived Vojvodina of autonomous status even more than its 1990 predecessor. Vojvodina is entitled neither to decide on its territory nor to chart its future. The much paraded 7 percent of the state budget for Vojvodina are not only utter cynicism, but also an instrument for switching theses in the talks about the province's position.

Therefore, the slogan planned to motivate voters to cast their ballots in the referendum by invoking "good days for Serbia's well-being" should have been phrased, "Bad days are in store for Serbia, and even worse for Vojvodina." In my view, this is what the Constitution messages and this is what one should keep in mind on October 28-29, 2006.


NO 99-100

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