“DNEVNIK”, 2 February 2004

INTERVIEW: PROFESSOR OF CONSTITUTIONAL LAW DR. PAVLE NIKOLIC

False legalism has prevailed

At the recently held 6th International Congress of Constitutional Law in Santiago de Chile, professor Dr. Pavle Nikolic was awarded the title of the honorary Chairman of the International Association for Constitutional Law, as well as the Gold medal of the Catholic University of Chile. Professor Nikolic is one of the founders of the Association, its secretary general and vice-chairman for eleven years.

- This is at the same time recognition of our science and constitutional law studies. Except for few individuals, people who work in this field have preserved the dignity of our science in the difficult times and keep up with the development of modern constitutional law. Besides, this Association was founded in Belgrade in 1981 at the initiative of Argentine, French and other constitutional experts, with full support of our experts, and today it represents the most important institution in this area – says professor Dr. Pavle Nikolic in the interview for “Dnevnik”.

● You were among the first to advocate the Constitutional Assembly, right after 5 October 2000, which would have meant discontinuity with the former system. That proposal did not have the support from the political circles of the new democratic Government of Serbia. Why wasn’t it accepted and who did that depend on?

- 5 October 2000 shone like a torch in the darkness of the former authoritarian regime and opened the way to radical changes. Since those first days I insisted that it was necessary to nullify the undemocratic Milosevic’s Constitution of Serbia and to pass the new, democratic one. I suggested that the newly elected Parliament proclaimed itself for the Constitutional Assembly and in that capacity declared Milosevic’s Constitution of 1990 null and void, passed provisional constitutional acts that would have enabled further functioning of the state and immediately commenced making of the new Constitution. I also proposed to pass the law that would nullify all the decisions of AVNOJ. I believed that was imperative, because 5 October was not an ordinary change of parties, but a radical, essentially revolutionary act. It represented final overthrowing of the hated Milosevic’s regime and opening to establishment of a truly democratic regime.

Regrettably, nobody responded to this appeal then. The idea of an imaginary, in fact false legalism prevailed, and so the wretched Miloshevic’s Constitution remained in power, as well as the Constitution of FRY from 1992. That was a fatal error of the new democratic Government, that got back at us and had multifold negative consequences – slowing down and disabling the process of reforms and transition in general, making it difficult and preventing radical and other changes in the police, state security, military, judicial system and other areas. The real reasons why the old Constitution wasn’t abolished immediately and the new ones passed could be given only by those who this depended on. The decision on that was brought much later, when the negative consequences became obvious and dangerous.

● You have made the draft of the Constitution of Serbia that proposes reestablishment of monarchy. Do you think the time has come to have a referendum about it in Serbia, and which are the advantages of monarchy in your opinion?

- On St. Demetrius Day 2001 I made public the proposal for the new Constitution – “The Constitution of the Kingdom of Serbia”. The basic idea in making it was to create a foundation on which a resurrection of a new, democratic Serbia might be based, an entirely new Constitution built on the proven principles of democracy and civilization, but also on Serbian democratic tradition. From the point of many issues that the Constitution should resolve I advocated, through the Constitution’s provisions, the reestablishment of constitutional parliamentary monarchy. Many important reasons lead me to it: starting from the true democratic values of constitutional parliamentary monarchy per se, to historical and traditional reasons, particularly those connected to our recent past. For almost six decades Serbia had lived under totalitarian Broz’s and authoritarian Milosevic’s regime, and republic was the framework of these regimes. Regrettably, republic turned out to be unsuccessful in the period after 5 October too – the way how the institution of the President of republic “functioned” and three failed presidential elections. Simply, Serbia has practically lived without a President of Republic for over three years. Constitutional parliamentary monarchy is a modern, democratic state system with the rule of law and it can not be turned into personal regime.

● Do you expect, if the solution for the current political crisis is found, that the political parties will come to a solution for the future Constitution of Serbia, and what would such agreement look like?

- As for the agreement, I’m not an optimist, for the so far course of making the draft for the new Constitution and general political atmosphere do not give reasons for hope. The hard-line party politics in the Constitutional Committee, which has not yet made public its work, parties’ disagreements on some key issues and the generally low level of political culture, struggle for selfish party interests and leaders’ ambitions, as well as ignoring experts’ opinions, do not create suitable climate for making a solid Constitution, particularly not in the near future. Of course, the bigger damage would be to pass a Constitution that would be the result of a “sour” compromise with temporary effects.

The issue of Vojvodina ● What position should Vojvodina have in the new Constitution? - This issue can be and has to be resolved within the general concept of regional organization. Some other constitutional experts and I support the idea of a broad democratic decentralization in the form political and territorial autonomy, which is accepted for instance in Italy or Spain. It is a type of regionalization characterized by a high level of autonomy of the regions (districts, provinces), much higher than the level of autonomy of the local government units, particularly in financial aspect, and lower than the level of autonomy of the federal units, i.e. without the elements of statehood. Regionalization would be applied to the whole of Serbia, which would have twelve regions, with Vojvodina having three: Srem, Banat and Backa, and the southern region having two: Kosovo and Metohija. Keeping the asymmetrical regionalization with only two regions is unacceptable, particularly having in mind the true meaning of their establishment only in Serbia in 1945. Asymmetrical organization leads to inequality of the status among the existing regions and the rest of Serbia.

 

Lj. Malesevic