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2006, vol. 54, iss. 2, pp. 5-46
2006 Constitution of the republic of Serbia: A critical appraisal
University of Belgrade, Faculty of Law
Keywords: constitutional principles; human rights; minority rights; economic system and public finances; governance; territorial governance; constitutionality and legality; constitutional court; amending of the constitution
Abstract
Although the new Constitution was in the making in Serbia for quite some time, draft of the Constitution, which has finally made its way into the final version, has been assembled unexpectedly and in a hurry, while the procedure of adoption has been accelerated to the utmost extent. Formally there were no infractions of the amending procedure provided for in 1990 Constitution, but it is hard to ignore objection that the new Constitution is a result of horse-trading between three main political parties, while the wider political and entire professional community has been sidelined. There were two main reasons for this speed. One was to preempt a possible negative decision of the UN Security Council with regard to the status of Kosovo currently under international civil and military administration, through including in the Constitution a provision which states that Kosovo "is a part of sovereign state of Serbia". Since the Constitution has to be affirmed at the referendum, and this has to be done by majority of all Serbian voters this position would be backed by the highest possible degree of legitimacy. Second reason for this "blitz" adoption was to provide Serbia with a proper Constitution which would reflect its new "status" after Montenegro left the state union Serbia and Montenegro. It seems that this dissolution has not been expected. A testament to below par drafting of the Constitution in a hurry are the unacceptably numerous nomotechnical shortcomings, some of which will represent significant problems in its future application. Moreover, this is, from the nomotechnical point of view, the most illiterate Constitution ever passed in Serbia's rich constitutional history. On the other hand neither the basic conception of the Constitution, its scope, nor the content of basic constitutional institutions depart significantly from the previous Serbian Constitution. This certainly defeats the purpose of enacting the new Constitution. After analysis of the whole Constitution, from the Preamble to the final provisions regulating constitutional procedure, the Author concludes that the new Constitution "repaired" the old one, rather than replacing it with the new and better one. The paramount political objective has been to displace the old ("Milosevic") constitution and not to enact a new, better one.

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article language: Serbian
document type: Original Scientific Paper
published in SCIndeks: 08/09/2007

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