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 ownership’s), 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: