Constitution
Belgrade 1995
By means
of the Constitution of the Republic of Serbia of 1990; after
many years, the dignity is being returned in the entire
Yugoslavia to the constitution as a legal act, while the
constitutional matter as reduced to a rational and usual
manner, otherwise accepted in the world. One is witnessing
here the traditional constitutional substance of the countries
of the European continental legal system, which includes
human rights and freedoms, as well as the basic rules of
organization and functioning of State. The entire matter
is regulated by applying the proper language of a legal
act and not an ideological and program-wise declaration.
Therefore there is no ideology in the new Constitution of
Serbia, nor idle speed and happy singing sentences with
little sense, which otherwise have no place in a public
enactment. By applying such conception in the sphere of
constitutional legislating, the Constitution of Serbia 'leaves
a wide space for the selforganizing of society for an autonomous
regulation activity of society and the one free from State
intervention. In addition, the system of power established
in that constitution is better suited by constitutional
norms which take place in a spontaneous manner, and in the
form of constitutional conventions, than by a priori established
constitutional rules by the constitutive power and the ones
which precede political experience. Therefore the Constitution
of Serbia contains that many norms which, according to the
feeling of its creators, is the number necessary for taking
roots by the basic constitutional values such as human freedom,
the rule of law, market economy, social justice, parliamentarism,
territorial autonomy, and local self-government.
Essential
characteristics of the new Constitution of Serbia are the
principles by means of which the borders have been set up
between man's freedom and State intervention. The first
of these principles reads that everything shall be permitted
unless it has been prohibited by the Constitution and the
laws, while the second one freedoms and rights of man and
citizen are restricted only by equal freedoms and rights
enjoyed by others, and when provided by the Constitution.
Applying such "methodology", practically, the
widest "zone" of human freedom has been taken
over, and in any case wider than in any other existing Yugoslav
constitution.
In
such a way almost all freedoms and rights in the sphere
of individual and political rights are elaborated in the
Constitution, while as far as socio-economic freedoms and
rights are concerned, mostly the method was applied of so-called
enunciation of legality, meaning that it was left to the
law to develop their substance and essence. Reason for this
approach is to quite a degree related to economic possibilities
of the country since the very nature of the latter freedoms
and rights leaves their realization to the above possibilities.
In addition, the scope of this matter is of such a degree
that it makes up a sphere of special laws.
A frontal
provision of the new Constitution of Serbia is the one defining
the Republic. The Republic of Serbia is a democratic State
of all citizens living within it. founded on the freedoms
and rights of man and citizen, rule of law, and social justice.
Contrary to constitutional definitions of multi-national
states - independent or federal units - both in the world
and in our country, the Constitution of Serbia does not
define the State by applying the ethnic criterion (a State
of the Serbian people), but by applying the democratic criterion
of a national, namely citizen sovereignty (a State of all
citizens living within it). In such a way the Constitution
of Serbia, while breaking away from the post-war constitutional
tradition, defines the statehood also independently of the
socio-class criterion. In this case, too, it is unique for
the time being in Yugoslavia (as compared to the federal
and the republic constitutions). In general, the Constitution
of Serbia does not know of the principle, and accordingly,
the institutionalization, of the collective sovereignty,
either on the ethical or class foundations for establishing
a collective. In its very essence, its foundation stone
is the principle of the individual, namely citizen sovereignty.
New constitutional definition of the Republic of Serbia
is a basic constitutional assumption which gives rise to
the entire organization of State authority. All agencies
of the Republic have therefore a widest democratic legitimacy,
in accordance with the constitutional norm according to
which the sovereignty is vested in all the citizens of the
Republic. This also means that some functions of State authority
may be effected by citizens in a direct way, and not only
through their freely elected representatives.
However,
as distinguished from all previous elections as 1 means
of legitimacy of agencies of the State authority, the elections
according to the new Constitution of Serbia are free and
multi-party ones. Citizens of the Republic of Serbia, instead
of voting for candidates imposed in advance, will have .the
opportunity to choose among several democratically - by
political parties or groups of citizens - nominated candidates.The
1990 Constitution of Serbia is for the time being the only
one among Yugoslav constitutions containing the provisions
and necessary constitutional principles and instruments
of market economy, which has as its material basis the pluralism
of ownership. In addition, no form of ownership is particularly
protected by the Constitution, not favorized in some other
way All kinds of ownership are subject to competition in
the market in an equal manner. The market is in such a way;
predominantly; but not solely, the regulatory instrument
of economic and social activities, where from the constitutional
provision according to which the State shall by measures
of developmental, economic and social policy, under equal
conditions, promote the increase of economic and social
welfare of citizens. In other words, a mixed market economy
(founded on pluralism of ownerships), permeated by
elements of social justice to be established by the State
- is the essential characteristic of the economic and social
order of the Republic of Serbia.
In
the new Constitution of Serbia the great democratic idea
on exercising the functions of State power on the principle
of division of powers is the basis of organization of State
authority. The exercising of legislative and executive State
power function (according to many experts, the mastery of
constitutional engineering consists in essence in finding
the magic formula to establish the balance between these
two powers) is organized on the principles of parliamentarism,
but in a rationalized form. This rationalization of parliamentarism
is dictated also by the present-day social situation in
Serbia, which is going to last for some time, but it does
not at all, just as in the Constitution of the Fifth French
Republic, challenge the existence of the essential core
of parliamentarism. The institution of the President of
the Republic, who comes to power in general and direct elections,
serves as a lever of this rationalization, but also as the
Constant's moderatory powers, which arbitrates along the
line of relations between the National Assembly and the
Government. In addition, the President of the Republic,
who is expected to act exclusively as statesman and not
as a politician, beside 2he function of the head of State
and supreme commander of the Armed Forces, is authorized
to take measures in an emergency situation, which is to
be proclaimed by him at the proposal of the Government.
Under the conditions laid down by the Constitution he may
then take measures required by the reason of the State.
As compared to the President of the French Fifth Republic,
the President of the Republic provided in the Constitution
of Serbia is "a weak" head of State, but in any
case "stronger" than the President of the Republic
according to the Italian I947 Constitution. It is crucial
for the principle of division of powers not to permit the
concentration of power in one place, and at one State agency
or body. This is why in this system of power there is no
supreme body of power, instead each of the bodies of State
authority being the supreme one within the framework of
a particular function. This requirement has been respected
in the Constitution of the Republic of Serbia.
In
conformity with the democratic principle, namely the principle
of national sovereignty, all functions of State power are
not exercised only by way of representative bodies, but
some of the "dimensions:" of that power may be
exercised by citizens directly, in a referendum and through
people's initiative. This time these are not bare proclamations
but substantive constitutional norms which produce specific
legal consequences.
According
to the new Constitution of Serbia, only one State does exist,
as everywhere in the world, in the territory of the single
State of Serbia. This, as something entirely natural, should
not be emphasized at all, but the fact is that until now,
due to the asymmetric state order of Serbia three States
have been in existence in its territory, namely two provincial
ones and, "between" them, the third one which
was a State the least. In the constitutional order of Serbia
there still are autonomous provinces, but now as units of
territorial autonomy, such as the provinces in Italy, and
autonomous communities in Spain, in other words - without
state functions. In such a way the autonomy in Serbia is
returned to its standard theoretical frameworks, where it
should be and where it is the only possible form of democratic
state order of a single State.
The
municipality is a unit of local self-government In this
way the former constitutional assumption ceases to be valid
of exercising the function of state power for its own benefit,
so that the municipality lost its characteristic of "a
mini-State" - which in essence was the result of the
utopian theory of communal system. A municipality provided
by the Constitution of the Republic of Serbia is a from
of territorial people's self-government, and not the object
of the State constitution. This is why the new Constitution
of Serbia contains only few basic provisions concerning
the municipality.
The
Constitution of Serbia provides ground to regulate by law
that a municipality may become a city in whose territory
two or more townships may be established, while by means
of a statute of the city the functions are to be determined
of the city and of the townships. For the City of Belgrade
it .is said that, as a separate territorial entity, it exercises
the functions of a municipality, as determined by the Constitution,
and the ones entrusted in it by the Republic by means of
law and within its jurisdiction.
According
to the new Constitution of Serbia, the other element of
the principle of the rule of law, after the constitutional
guaranteeing of rights of man and citizen - the State of
law, namely the function of protecting the constitutional
and legal order, is vested in the courts of law and public
prosecutor's offices, as well as in a special - Constitutional
Court. Courts of law have obtained, as never before, strong
guaranties of judicial independence, while the Constitutional
Court was designed not only as a defender of constitutionality
and legality, but as a protector of the constitutional order
of the Republic of Serbia as well, and in its entirety.
Consistent
with the new democratic order in the process of establishing,
the new Constitution has provided also for a new constitutive
procedure. In conformity with the principle of national
sovereignty, the decision on amending the Constitution shall
be a joint decision of the National Assembly and the citizens.
In this way, each constitutive decision is both the a}t
of the State and the people. In future, as in Switzerland,
the final decision concerning the Constitution of Serbia
shall be with its citizens.
Due
to the present constitutional status of Serbia, the question
may arise as to whether Serbia with the new Constitution
has returned its back to the federal Yugoslavia. By the
new Constitution Serbia has only made more precise the character
of its link with Yugoslavia. Serbia has entirely recognized
the primacy of the federal Constitution - until Yugoslavia
continues to have the federal order. Some other, non-federal
Yugoslavia is beyond the political and state interest of
Serbia. Precisely because of that, and due to the tendency
of squandering the federal Yugoslavia which is now visible,
Serbia had to include in its Constitution the "defensive
clause", too. A violation of the federal Constitution
at the detriment of Serbia entitles Serbia to self-defense.
In such cases, namely, republic authorities shall issue
acts in order to protect the interests of the Republic of
Serbia.
The
Constitution of the Republic of Serbia enacted in 199 has
established in its constitutional norms a new society and
a new State. Such qualitative changes of society and State
are done in the world in revolutions where, as a rule, the
blood is shed. The new Constitution of Serbia has transformed
the entire anatomy and physiognomy of the constitutional
order o} the Republic of Serbia without shedding a drop
of blood. It marks a rescission from the utopian constitutionality
of the Kardelj type, while trying to build up democratic
foundations of an entirely new society and State, based
on well-known and verified clear democratic principles.
This
Constitution opens therefore a new era of democratic constitutionality
in Serbia, as the one which it had at the beginning of the
present century. It is to be hoped that from now on Serbia
will never leave the road of democratic constitutionality.
DR
Ratko Markovic
Professor of the University of Belgrade
In
conformity with the Amendment XLVII, sub-paragraph 7, to
the Constitution of the Socialist Republic of Serbia,
The
Assembly of the Socialist Republic of Serbia, at the joint
session of all chambers, on September 28, 1990, has passed
THE
DECISION ON THE PROMULGATION OF THE CONSTITUTION OF THE
REPUBLIC OF SERBIA
The
Constitution of the Republic of Serbia which is adopted
by the Assembly of the Socialist Republic of Serbia at the
joint session of all chambers, on September 28, 1990, is
hereby promulgated.
In the
City of Belgrade, on September 28, 1990 The Assembly of
the Socialist Republic of Serbia
THE
PRESIDENT OF THE ASSEMBLY
Zoran Sokolovic
Mindful
of the centuries-long struggle of the Serbian people for
freedom, their freedom-loving, democratic and nation-building
traditions, and the historical development and life in common
of all the peoples and national minorities in Serbia;
Determined
to create a democratic State of the Serbian people in which
members of other nations and national minorities will be
able to exercise their national rights, based upon observance
of the freedoms and rights of man and citizen, sovereignty
vested in all citizens, the rule of law, social justice
and equal opportunities for the advancement of the individual
and society;
The
citizens of Serbia have adopted the following:
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