Prof. Dr. Pavle Nikolic, expert in constitutional law

WITHOUT CONSTITUTION THERE IS NO RESURRECTION

● Passing the new constitution is “conditio sine qua non” for the resurrection of the new, democratic Serbia ● In December 2000 I proposed that the Parliament proclaims itself for the Constitutional Assembly ● The most rational solution would be to establish the so called Ministry for the Constituency, that would fully include the true experts and make the draft of the new Constitution

Passing the new Constitution of Serbia should represent the final confirmation of the changes and everything that 5 October meant and should have to mean, and it is “conditio sine qua non” for the resurrection of the new, democratic Serbia. The Constitution should have to be indisputably founded in democracy, modern constitutional law and civilization, as well as in authentic Serbian democratic tradition. Regrettably, one can not be very optimistic in that respect. The obstacles are evident: extreme divisions in the current political scene, irregularities in the multi-party system, low level of political culture, strong tendencies to achieve selfish party interests and leaders’ ambitions... And it would be totally unacceptable to pass the new Constitution based on a “sour” compromise. That is why the creators of the new Constitution have a historical responsibility – estimates Prof. Dr. Pavle Nikolic, an expert in constitutional law, in the interview for “Vesti”.

Why hasn’t the new Constitution been passed yet?

Passing the new Constitution should have been initiated immediately after 5 October 2000. That was not done because the idea of imaginary, actually false legalism had prevailed. In December that year I proposed that the Parliament proclaims itself for the Constitutional Assembly and in that capacity puts out of power this undemocratic, misfortunate Milosevic’s Constitution from 1990, and immediately begins making the new Constitution. That should have been done if 5 October had been a radical, essentially revolutionary turn, which it had to be. But at that moment nobody publicly supported my proposal, and quite later some “remembered” that it should have been done. It was a fatal error of the new democratic Government, which caused many negative consequences and the drastic falling behind in transitional process generally speaking.

What are the prospects of the new Constitution now?

The newly elected Parliament has the task of passing the new Constitution, but it is not clear when it will do so. Among the present parliamentary parties there are different opinions on the contents of the new Constitution and the moment when to pass it: immediately, in some reasonable time or, not pass it at all, but make corrections in the existing Constitutions. I believe that passing the new Constitution might be done in a legal and meaningful way – by proclaiming the Parliament for the Constitutional Assembly of by electing the Constitutional Assembly that would, by having the authentic constitutive power, prescribe the procedure of passing the new Constitution, without any obligation to abide by the stipulations on procedure of the existing Constitution. The most rational solution would be to establish the so called Ministry for the Constituency, that would fully include the true experts and make the draft of the new Constitution.

How should Serbia be defined by the new Constitution?

The so called civic concept has a totally non-national approach which is absolutely unacceptable, for it means neglecting the fact that the state of Serbia was established by the Serbian people and that it was renewed after Ottoman occupation, as well as that Serbia was defended by the Serbian people in the time of wars, and after all, the Serbs make absolute majority in Serbia. Totally national approach is also unacceptable, for many national minorities also live in Serbia with the same rights and obligations that the Serbs people have. The only acceptable and accurate definition is “Serbia is the state of the Serbian people and all its citizens with equal rights regardless of their race, nation, ethnic origin, language and religion”. I am glad that some have changed their opinion, and support this definition of Serbia.

Serbia – republic or monarchy?

Republic in our country under Broz and Milosevic has turned out as an unsuccessful form of state system, because authoritarian regimes were developed within it, and after 5 October 2000, republic was discredited – intolerably passive role of the president of the republic (from the former regime), and then three failed presidential elections. On the other hand, constitutional parliamentary monarchy is a modern democratic state ruled by law. Limited authority of the King in the spirit and according to the rules of the constitutional parliamentary monarchy with mandatory signatures of the Ministers on every King’s act, indisputably high authority of the King as the symbol of unity and continuity of the state, as well as his non-party position which allows him the role of the arbiter and reconciliator in the country’s political life, are a reliable warrant of democracy. One must have in mind that Serbia has always been a monarchy, except under Broz, Milosevic and for the last three years of transition, and all the time during the Constitutions of 1888 and 1903 were in power, she reached the peaks of European constitutional law. Reestablishment of constitutional parliamentary monarchy would mean return of Serbia to her roots and integration into the family of constitutionally developed countries. The current situation in Serbia points at the necessity of many radical changes, particularly in the state system.

WHAT DID THEY DO?

What did the committee for making the new Constitution do so far?

The decision on passing the new constitution was followed by passing the unconstitutional law on the procedure for passing the new Constitution. This law has violated the Constitution of 1990, which remained in power by the will of the new democratic Government after 5 October 2000. By passing this law, something unprecedented in the history of constitutional law was done: the lower act prescribed the procedure for passing the Constitution – the higher act. Constitutional Committee had worked for several months, and not only the new Constitution of Serbia was not made, but its work was interrupted by dismissal of the Parliament in November, without presenting the work of the Constitution Committee to the public.

Radmila Loncar